Ballard Motors, Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1969

179 N.L.R.B. 300 (N.L.R.B. 1969)

300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ballard Motors, Inc. and International Association
of Machinists District Lodge 94 and its Affiliated
Local Lodge 2327, AFL-CIO. Case 2l-CA-8397
October 23, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On June 5, 1969 Trial Examiner Irving Rogosin
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. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the
General Counsel filed an answering 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, the briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, Ballard Motors, Inc.,
Anaheim, California, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
The Respondent excepts to some of the Trial Examiner 's credibility
resolutions It is the Board 's established policy, however , not to overrule a
Trial Examiner 's resolutions as to credibility unless, as is not the case here,
the preponderance of all the relevant evidence convinces us that they are
incorrect Standard Drv Wall Products , inc. 91 NLRB 544, enfd 188
F 2d 362 (C A 3)
DECISION OF TRIAL EXAMINER
STATEMENT OF THE CASE
IRVING ROGOSIN, Trial Examiner The complaint,
issued February 24, 1969, alleges that Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act, by (1) discharging Paul
Baron, on about November 15, 1968, and thereafter
failing and refusing to reinstate him because he had
engaged in union or protected concerted activities, and (2)
through various supervisors, interrogating employees
concerning their union and concerted activities during
October 1968, and on or about November 13, 1968.'
Respondent's answer admits the procedural and
jurisdictional allegations of the complaint, but denies
generally the remaining allegations, including those
charging the commission of unfair labor practices
Hearing was held on April 1, 2, and 3, 1969, at Los
Angeles, California, before the duly designated Trial
Examiner All parties were represented by counsel or
union representatives, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to
introduce evidence relevant and material to the issues, to
argue orally, and to file briefs and proposed findings of
fact and conclusions of law At the close of the General
Counsel's case, Respondent moved to strike certain
testimony, and to dismiss the complaint for failure of
proof. The motions were denied and were not
subsequently renewed. The parties declined to argue
orally, but reserved the right to file briefs Briefs were
filed by the General Counsel and Respondent on May 8,
1969.
Upon the entire record in the case, his resolution of
issues of credibility based upon the appearance and
demeanor of the witnesses, and the briefs, which have
been carefully considered, the Trial Examiner makes the
following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits,
and it is hereby found, that Ballard Motors, Inc ,
Respondent herein, is a corporation engaged in the retail
sale of automobiles, parts, and service in Anaheim,
California
During the calendar year 1968, in the conduct of its
business, Respondent sold commodities valued in excess of
$500,000, and purchased and received commodities valued
in excess of $50,000 from points outside the State of
California
It is, therefore, found that Respondent is now, and, at
all times material herein has been, an employer engaged
in commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act, and the
Board's jurisdictional standards
II. THE LABOR ORGANIZATIONS INVOLVED
International Association of Machinists District Lodge
94 and its affiliated Local Lodge 2327, AFL-CIO, herein
called the Union or the Charging Party, are, and at all
times material herein have been, labor organizations
within the meaning of Section 2(5) of the Act
The original charge was filed and served on January 16, 1969 The
name of Respondent has been corrected by substituting the abbreviation
"inc " for the word "Incorporated" to conform to the corporate title
Designations are as follows The General Counsel, unless otherwise stated,
his representatives at the hearing, Respondent, the Company or the
Employer, Ballard Motors, Inc. the Union or the Charging Party,
International Association of Machinists District Lodge 94 and its affiliated
Local Lodge 2327, AFL-CIO, the Board, the National Labor Relations
Board, the Act, the National Labor Relations Act, as amended, 61 Stat
136, 73 Stat 519, 29 U S C Sec 151, et seq Unless otherwise stated, all
events occurred in 1968
179 NLRB No. 48
BALLARD MOTORS, INC. 301
III. THE UNFAIR LABOR PRACTICES
A Introduction
Since October 1952, Respondent has operated an
automobile agency for the sale of new and used
Volkswagen, and, to a lesser extent, Porsche, automobiles,
at its showroom, used car lot, and service department,
located at 1325 North Lemon Street, Anaheim,
California During the period with which we are
concerned, its managerial hierarchy consisted of Thomas
B Ballard, president; Bernard W. Jordan, executive vice
president and general manager, responsible for general
management and policy; Vernon Cannon, assistant general
manager in charge of operations, including sales, service,
parts, body shop and office, and James W Panos, general
sales manager Assistant General Manager Cannon was
responsible for the active management of the business
Ballard devotes only 1 or 2 days a week to the agency, the
remainder of the time to other business interests.
According to him, he has not attended a sales meeting at
the agency since 1967, when he was present at only one or
two meetings Vice President Jordan testified that he
devotes no more than 25 percent of his time to the
business of the Company, the remainder of his time to
other business interests, apparently in association with
Ballard.
Beginning in about March 1968, the Union launched an
organizational campaign among salesmen employed by
automobile dealers in Los Angeles, Orange, Riverside,
San Bernadino, and Ventura counties Organizational
meetings were held in March and May 1968, at the
Carpenters Hall in Anaheim. Some 200 to 300 salesmen,
among them Paul Baron, whose case is involved in this
proceeding, employed by various automobile agencies in
those areas, attended the meetings. Proposed contract
terms, providing improved working conditions, a pension
plan, Sunday closing, and other matters of common
concern were explored at these meetings, and salesmen
were solicited to join the Union. President Ballard
himself, while maintaining a generally aloof attitude about
the day-to-day operations of the agency, nevertheless,
acknowledged that he was aware of the 1968
organizational drive, and of the Sunday closing issue in
Southern California, Arizona, and Nevada 2 Like other
management officials, Ballard, however, firmly denied
knowledge of union activities at Respondent's automobile
agency at any time until the filing of the charge in this
proceeding.
B Discrimination in Regard to Hire and Tenure of
Employment, Interference, Restraint, and Coercion
Paul Baron was hired by Respondent as a new- and
used-car salesmen on January 5, 1964, and continued in
Respondent's employ until November 15, 1968, when his
employment was terminated, under circumstances later
detailed He attended both the March and May union
meetings, and finally joined the Union in August
In May, Assistant General Manager Cannon learned
through a newspaper advertisement of the union meeting
of automobile salesmen in Southern California and
Orange County scheduled that month
'Ballard also testified that he had been aware of earlier efforts to
organize the automobile salesmen in the Los Angeles and Orange County
areas as far back as 1950 , as well as in 1961-62, while he was operating an
Oldsmobile agency in Hollywood
Baron testified that at a company sales meeting in
August, Ballard announced that he intended to be in the
forefront of the industry in closing on Sundays, that no
outside help was needed, and that thereafter Respondent's
agency would be closed on Sundays.
Ballard denied that he was present at any such sales
meeting as Baron described, and further denied making
the remarks attributed to him. The record establishes,
however, that at a meeting of Volkswagen dealers held on
July 3, at the Saddleback Inn, Santa Ana, California, at
which J H. McCord, a Volkswagen factory
representative, presided, and which Jordan attended, the
subject of Sunday closing was discussed and the consensus
was that if all other dealers agreed, Respondent would
join in Sunday closing Thereafter, at sales meetings held
between July 8 and 10, Jordan announced the decision
which had been reached regarding Sunday closing On
about July 14, the decision of automobile dealers in Los
Angeles and Orange counties to observe Sunday closing
was announced through advertisements in the Los Angeles
Times and the Santa Ana Register. It is, therefore,
evident that, although Baron was mistaken as to who
made the announcement, such announcement was, in fact,
made by Jordan, in July rather than in August, as Baron
had thought, and that this was the occasion to which he
referred. Jordan testified that he believed that Baron was
present at one of the sales meetings at which the
announcement was made. It is further found, contrary to
Jordan's denials, that he actually made the remark that
the Sunday closing had been accomplished without outside
help, an obvious reference to the Union, which Baron had
mistakenly attributed to Ballard. The subject of Sunday
closing had been discussed at union meetings as one of the
proposed demands, and had been debated at the dealers
meeting at Santa Ana, on July 3. It is, therefore, plausible
to believe that Jordan made the remarks concerning which
Baron testified. The fact that some dealers had voluntarily
started closing on Sundays, without waiting for all the
dealers in Los Angeles and Orange Counties to do so,
does not require a different conclusion. It is unnecessary
to decide whether, in yielding to the demand for Sunday
closing, Respondent and other dealers were seeking to
circumvent the Union by impressing salesmen with the
belief that they could achieve their goals without the
intervention of a union. While such an inference may be
warranted, the episode is significant in establishing that
Respondent knew or concluded that the organizational
activity would involve its employees It is unnecessary,
however, to rely upon this factor alone, for a finding of
knowledge by Respondent of union activity at its
establishment.
It is undisputed that, late in August or early in
September, Edward A Kerze, Respondent's new-car sales
manager at the time, was interrogated by management
officials regarding his union affiliation and that of other
salesmen. The meeting, held in the president's office, was
attended by Ballard, Vice President Jordan, and Assistant
General Manager Cannon '
Jordan wondered aloud why anybody working for
Respondent would be interested in gommg a union. Kerze
suggested that the salesmen might not always be working
'Kerze was hired initially, on June 24, 1964, as a new- and used-car
salesman He continued in that job until July 1, 1968, when he was
promoted to the position of sales manager, which he held until October
1968, when his employment was terminated Kerze 's termination was not
explained, though he was admittedly offered an opportunity to remain on
as a salesman He agreed to consider the offer but later declined it
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Respondent but might later go to work for a
"domestic" car dealer. Cannon asked Kerze whether he
was a union member. Kerze acknowledged that he had
been a member but said that he had resigned because he
considered union membership "incompatible" with his
position as salesmanager.° Either Cannon or Ballard then
asked Kerze whether he knew if any of the other salesmen
were union members, and how many of the men belonged
Kerze was then aware that Baron, as well as other
salesmen were union members, but replied that he was not
in a position to say and if they were interested in finding
out, he would have the salesmen paged over the intercom
system so they could be questioned individually Ballard
told him that that would not be necessary Kerze
conceded, in his testimony, that he was not asked to
divulge the names of union salesmen, that he was not
asked about, and did not reveal Baron's union
membership, and that he did not "betray the trust" of the
union salesmen. Respondent contends that, since Kerze
did not disclose the identity of the union salesmen, the
incident affords no basis for a finding of knowledge of
union activity. The interrogation itself indicates that
Respondent knew or suspected that its employees were
engaging in union activity even though it may not have
known the identity of the union adherents 5
On Wednesday afternoon, about 3 o'clock, Baron
testified, Assistant General Manager Cannon summoned
him to his office When Baron arrived, Cannon began by
mentioning that Baron had been with the agency a long
time, and that he was the oldest employee from the
standpoint of tenure Cannon then remarked that it
appeared that someone in the organization was employed
by the Union, and that management had suspected Bob
Wallace, but since he had been terminated, they decided
that he could not have been the one involved. They then
surmised that it was Kerze, but he, too, had been
terminated, so that eliminated him as a suspect Their
suspicion then settled on Ted Faris, but he was no longer
with the agency. All three had, according to Respondent,
been supervisors 6 Cannon told Baron that that left him
and Peringer' as suspects Cannon then asked Baron
directly if he was employed by the Union Baron denied it
Cannon observed that that left only Peringer, and asked
Baron if it was Peringer who was employed by the Union
Baron told Cannon that he would have to ask Peringer
Cannon remarked that Baron had been a good and loyal
employee, and that he hoped he would be with the agency
a long time
Cannon categorically denied that he had any such
conversation with Baron on November 13, or, for that
matter, at any other time after noon that day, testifying
that he and Vice President Jordan drove to lunch in
Cannon's car and then went shopping in preparation for a
trip to Vancouver, British Columbia, on which Cannon
was leaving with President Ballard next morning 8 Later,
that afternoon, Cannon testified, he dropped Jordan off at
the automobile agency, but did not go in himself,
continuing on to do another errand in connection with his
'Kerze testified that he had joined the Union in June 1968
'The General Counsel concedes that since Kerze was a supervisor at the
time of the interrogation , no finding of 8(a)(1) conduct may be based
thereon Furthermore there was no showing that the other salesmen
learned of this instance of interrogation The incident is relied on as
evidence of Respondent 's opposition to the organizational activities of its
employees and knowledge of union activity at its establishment
'This, of course , would have no bearing on whether Respondent
suspected them of being in the employ of the Union
'Spelled Parringer in the record
trip Jordan, too, testified that Cannon dropped him off at
the agency at 3 30 or 4:00 that afternoon, and that
Cannon did not go into the agency Jordan remained in
his office until 6 30 that evening Because of the location
of his office, Jordan could not have seen the showroom or
Cannon's office, but he testified that Cannon did not
return that afternoon Sales manager Panos also testified
that Cannon was not at the agency after noon, November
13, and that Cannon could not have returned without his
having seen him because, apart from the fact that his
office afforded him a view of the showroom, he spent only
50 percent of his time in his office, the remainder of his
time moving about the various departments, so that he
would have seen Cannon if he had returned
As to the termination of Wallace and Kerze, Cannon
testified that he had nothing to do with it, and that he had
had no knowledge or suspicion of Wallace's alleged union
affiliation As to Kerze, Cannon did testify that, although
he had relayed Ballard's decision to Kerze, and notified
him that he was "being relieved" as salesmanager, he had
asked Kerze to stay on as a salesman, that Kerze had said
that he would let him know, and that he finally notified
him that he was not interested
It is conceivable, as the General Counsel suggests, that,
contrary to the testimony of Respondent's witnesses,
Cannon could have returned to his office to complete
some unfinished work in anticipation of his trip next day
This, however, is based on sheer conjecture and is, of
course, insufficient to overcome the uncontradicted and
mutually corroborative testimony of Respondent's
witnesses, especially in the light of the circumstantial
evidence regarding the dates of Cannon's absence from the
city in connection with his trip with Ballard. Moreover, it
seems unlikely, that Cannon would have chosen the
afternoon on which he was occupied with chores in
connection with his trip next day as the occasion for
interrogating Baron about union activity at the agency.
The likelihood that the alleged conversation between
Cannon and Baron could not have taken place on
November 13, does not, however, dispose of the matter,
unless, as Respondent maintains, the episode is "just a
figment of Baron's imagination" or, more bluntly stated,
a complete fabrication.
Baron's account of this meeting was straightforward
and convincing, and the details of his alleged conversation
with Cannon appear too factual to have been contrived.
Moreover, Kerze's uncontradicted and credited testimony
regarding similar interrogation by Respondent's top
hierarchy in the president's private office, in August or
September and his subsequent termination, to which
Cannon is said to have alluded in the conversation, lends
credence to Baron's testimony regarding the encounter.
There was no showing or reason to believe that
management's attitude in regard to organizational activity
at the agency had undergone a change in the interim
Furthermore, it is significant, as will later appear, that
on November II or 12, when Sales Manager Panos told
Cannon that he intended to terminate Baron and Peringer
on November 15, Cannon expressed surprise that Panos
was releasing Baron, their oldest salesman. The reasons
Panos gave Cannon for his decision are of no consequence
at the moment The fact that Cannon was admittedly
'According to Ballard, he left from Los Angeles with his son, Thomas,
Jr , a friend of his son ' s, and Cannon , at 8 30 a m , November 14, and
Cannon did not return to Los Angeles until 7 a m , November 18, as
shown by entries in a diary kept by Ballard as well as by vouchers for
airline tickets and hotel accomodations
BALLARD MOTORS, INC.
aware that Baron was being discharged on November 15,
lends further credence to Baron's testimony as to his
interrogation by Cannon in an effort to discover the
identity of the union activists before Baron left
Respondent's employ.' Although Baron may have been
mistaken as to the exact date this discussion occurred, it is
evident that such a discussion took place sometime
between November 11 and November 13, and it is so
found
It is, therefore, found that Cannon did, in fact, have
such a conversation with Baron on an afternoon between
November 11 and 13, 1968, and that he made the
statements attributed to him by Baron By Cannon's
interrogation of Baron, on or about said dates, regarding
his union activities and those of other employees,
Respondent has interfered with, restrained, and coerced
employees in the exercise of rights guaranteed in Section
7, in violation of Section 8(a)(1) of the Act
Baron worked until 9 p.m on November 13. That
night, accompanied by Czerny Peringer, Jim Grobe, and
John White, he attended a union meeting at the Embassy
Auditorium, in Los Angeles. The meeting had been
publicized by a flyer which had been distributed through
the mail Some 600 or 700 salesmen attended the meeting.
Baron and Peringer participated in the discussion Baron
addressed the assembly over a microphone, and proposed
the election of officers. He was informed that it would be
necessary to appoint a nominating committee, and that
election of officers could not be held until the next
meeting
During the next 2 days, November 14 and 15, various
salesmen spoke to Baron on the showroom floor about the
union meeting, and commended him for his part in the
meeting According to Baron, this was discussed freely
and openly at the agency, and at one time or another all
the salesmen spoke to him about it Some of these
comments were made not more than 10 feet from Sales
Manager Panos' office. Peringer had a conversation with
Baron on the subject on the showroom floor near the sales
desk. Grobe also discussed the matter with Baron on the
showroom floor While some of these discussions were
taking place, Baron testified, Sales Manager Panos and
Vice President Cannon were in their offices near the
showroom floor It is evident that Baron was mistaken as
regards Cannon since he was out of the city on his trip to
Canada on the days in question Panos, however, occupied
Cannon's office part of the time Cannon was away, and
this may have led Baron to believe that Cannon was
actually in his office during those days 10 Other discussions
took place, according to Baron, at the coffee machine
near Cannon's office, in the used-car lot, and at the lunch
wagon (presumably a catering truck) Baron testified that
the door to Cannon's office was generally open.
Because of the peculiar acoustics in the showroom,
Baron testified, conversations could be heard in Cannon's
'The fact that , as Baron testified , Cannon told him that he had been a
loyal employee, and that Cannon hoped he would be with the Company a
long time, may be regarded as an attempt to allay Baron ' s possible
apprehensions about revealing the information Cannon was seeking to
elicit
"Respondent employed between four and six new-car salesmen , on split
shifts at the time, 8 a m to 2 p m, and 2 to 9 p m, weekdays , (8 a m to 6
p m , Saturdays ) The automobile showroom occupies an area 35' x 27',
with floor space for the display of four to six Volkswagen automobiles
There are two "closing" offices , shared by all the salesmen , located on the
showroom floor 15 to 20 feet from the sales manager 's office Directly
behind his office is Cannon 's office, which is reached from the showroom
floor through a short hall
303
office from 50 percent of the showroom floor. In fact, in
an actual experiment conducted before the advent of the
Union, by two salesmen who engaged in a normal
conversation on the showroom floor, while Baron was in
Cannon's office 25 feet away, Baron was able to hear the
conversation
On the other hand, Sales Manager Panos, who spent
about half his time in his office, testified that the door to
his office was sometimes closed, depending on what he
was doing at the time, that he was on the telephone part
of the time, and that music piped into the showroom, was
so loud at times that he was obliged to instruct the
telephone operator to lower the volume Panos denied that
he overheard any conversation among the salesmen
regarding the union meeting on either November 14 or 15,
the days on which the discussions were alleged to have
taken place Cannon testified that it would be impossible
to hear normal conversation from the sales floor in his
office unless the persons were no more than 2 feet away
from his office with the door open. Like Panos, he
testified that the piped music or paging over the public
address system would render it impossible to hear
ordinary conversation on the sales floor, and that, in any
event, it would be impossible to hear conversation from
the sales floor in his or the sales manager 's office unless
the persons were shouting It would likewise have been
impossible, according to Cannon, to overhear
conversations at the coffee or coke machine outside his
office even with the door open
Probably the most reliable and objective evidence on
this score was provided by former Sales Manager Kerze
Kerze had occupied the office which Panos used when he
became sales manager According to Kerze, it was
unlikely that normal conversation on the sales floor, at the
sales desk or the Coke machine could be overheard from
the sales manager's office, unless the occupant of that
office made a determined effort to listen. As to Cannon's
office, however, because of an "acoustical goof," about
which he had heard prior to becoming manager, Kerze
testified that conversation in "whispers" at the front desk
on the sales floor could be heard in Cannon's office, if the
door were open and the person in that office were
listening, but not otherwise
It thus appears from Kerze's testimony that, although it
would have been possible to overhear conversation from
the sales floor in Cannon's office, it is highly improbable
that such conversation could be heard in the sales
manager's office Although the evidence discloses that
Panos used Cannon's office in his absence part of the
time, the evidence is too inconclusive to establish that
Panos overheard any discussions between Baron and other
salesmen regarding the union meeting and Baron's
participation in that meeting. Even if Panos observed
various salesmen talking to Baron on the two days in
question, it cannot be assumed that he knew or suspected
that they were discussing union matters This, however,
does not preclude a finding that Panos, or other
responsible management officials, may have been aware of
or suspected its employees of engaging in union activity or
of Baron's participation therein, an issue which is later
resolved.
On the evening of November 15,11 Panos summoned
Baron to Cannon's office, and suggested that Baron take
a vacation. Baron replied that he had already taken a
"Baron placed the time as sometime between 5 and 8 30 p m , Panos, as
about 8 45 p m The exact time is immaterial
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week's vacation in September 12 Panos then told Baron
that his sales had been low Baron said that he failed to
understand this because his sales had been on a par with
those of other salesmen Thereupon, according to Baron,
Panos said he had received orders "from the back room"
to terminate him Asked whom he meant, Panos
mentioned Cannon and Jordan Panos told Baron that the
next day, Saturday, November 16, would be his last day.
Baron decided under the circumstances to terminate his
employment at the end of his shift that night, Friday
In Panos' version, in which Baron was admittedly
terminated in Cannon's office, Panos told Baron that due
to the shortage of new cars, which had already begun, it
had become necessary to reduce the sales force of new car
salesmen by two men, and that Baron had been selected
as one of the two, even though he was one of the older
salesmen Panos testified that he told Baron that the
shortage of new cars could not last indefinitely, and
expressed the hope that when the supply of cars increased
Baron would consider returning Baron asked Panos
whether Cannon was responsible for his dismissal, and
Panos denied it When Baron asked Panos who the other
salesman was who was being released, and ventured a
guess that it was Peringer, Panos acknowledged that it
was " According to Panos, Baron did not ask him why he
had been selected for termination. Baron, however, told
Panos that he would not return because he felt there was
more to his layoff than met the eye. Panos asked Baron to
reconsider, but he refused.
Baron testified that he did not recall that Panos
expressed the hope that he would return when the supply
of new cars increased, or that he himself indicated that he
would not return under any circumstances
In view of the ultimate findings, it is found that Panos
did not tell Baron that he hoped he would return to the
agency when more new cars became available, and that
Baron did not say that he would not return under any
circumstances
Baron has not since been recalled to work The first
new-car salesman hired since Baron's discharge on
November 15, was employed January 16, 1969
Respondent's Contentions
Respondent contends that (1) there is no direct evidence
that it had any knowledge or suspicion of Baron's union
activity, or circumstantial evidence from which such an
inference may be drawn, (2) there is no evidence of union
animus, and (3) Baron was terminated for valid,
nondiscriminatory reasons 11
Respondent, like other Volkswagen dealers in southern
California, receives its Volkswagen automobiles from
Volkswagen Pacific, Inc , the West Coast distributor.' '
"Baron had taken a week 's vacation in September 1968, which resulted
in a loss of 6 working days that month
"Peringer was terminated next day, November 16
"Contrary to Respondent's contention that Baron was laid off, the
evidence establishes that he was actually terminated , though for the
purpose of this case it is immaterial whether he was laid off or terminated
Baron was not recalled when an opening for a new-car salesman arose,
though Respondent claims , inferentially , that it did not recall him because
he indicated that he would not accept reemployment
"This distributor serves dealers in the I l southern counties of California,
the State of Arizona, Clark County, Nevada, and the State of Hawaii
Volkswagen of America, Englewood Cliffs, New Jersey, is the importer,
and while the distributor places its order for production through the
importer, the distributor receives shipment direct from the manufacturer's
plants in Germany at the Los Angeles harbor, with the exception of
automobiles destined for Hawaii, which are shipped directly from
Germany
On October 15, Roger Frank, the distributor's assistant
general manager, called at Respondent's dealership, and
notified Sales Manager Panos that due to a threatened
longshore strike on the East Coast, shipments of
Volkswagens would be diverted to New York and Gulf
coast ports, in order to stockpile as many cars as possible
before the strike Frank told Panos that this would result
in a very serious shortage of new cars, that he wanted to
alert him as early as possible, and recommended that
management "take a good look at the entire operation "
Soon afterward, a meeting was held in President
Ballard's office attended by Frank, Ballard, Jordan,
Cannon and Panos. Frank reviewed the situation
regarding the impending shortage of cars, repeating what
he had told Panos, and advised that the Company
examine its entire situation, especially in connection with
its used cars, because the Company would be engaged
primarily in the used car business for the next few
months Asked on cross-examination if he specifically told
the company officials that there would be a shortage or
only the prospect of one, Frank testified, "A possibility, in
the event that the December 20 date (apparently the last
day of the Taft-Hartley injunction) led to a strike on the
East and Gulf Coast ports It was more in the form of,
not a warning per se, but a possibility." Within the next
day or two, Ballard telephoned Joel McCord, general
manager for the distributor, and received confirmation of
Frank's report.
About October 31, Respondent received a circular
letter, over Sales Manager McCord's signature, which had
been sent to all Southern California Volkswagen dealers,
notifying them of the prospect of a shortage of new cars.
The letter reiterated what Frank and McCord had told
management, pointing out that "all dealers are well ahead
of their annual 1968 calendar year allocations," that the
distributor hoped to obtain and allocate enough cars in
November and December, "so that all dealers can write
black figures," and expressed the expectation that the
shortage of cars would be made up in January or
February 1969.
Upon receipt of the letter from the distributor, Ballard
summoned Panos, Jordan and Cannon to a meeting in his
office Ballard suggested that, in view of the impending
shortage of new cars, a reduction in the sales force would
be necessary so that the top salesmen could earn a living 16
According to Panos, Ballard advised him to take a long
look at the situation and decide how many salesmen he
would need to handle the reduced volume of cars Panos
testified that at this meeting the decision was made to
terminate two new-car salesmen and one used-car
salesman Ballard, however, testified that there was no
discussion regarding any specific action to be taken by
Panos, and that the matter was placed in Panos' hands
Panos, who had authority to hire and fire employees in his
department, decided next day to terminate one used-car
and two new-car salesmen, and selected Baron and
Peringer. According to Panos, he made the decision
himself, without any suggestion or recommendation from
management, and did not inform his superiors of his
decision in advance With regard to the used-car salesman,
Panos did discuss this with Pritchard, the used-car sales
manager, and decided to discharge Worthington when he
returned to work because of his unexcused absences
According to Panos, he had been evaluating the relative
qualifications of the salesmen for several weeks before
"New- and used -car salesmen worked on straight commission based on
the sales of cars, accessories , and insurance
BALLARD MOTORS, INC.
November I On November 1, he terminated
Worthington's employment He did not terminate Baron's
employment, however, until 2 weeks later because, he
testified, he was "hoping for a miracle" in the way of
additional new cars, which would obviate the need to
reduce the new-car sales force It is significant that at no
time after Respondent learned of the anticipated shortage
of cars did it notify its salesmen of that contingency or of
the possibility that this would require reduction in sales
force
In contrast to Panos' testimony, Cannon testified that a
day to two after the October 31 meeting in Ballard's
office, Panos told him in his, Cannon's office, that unless
they received an adequate supply of new cars, he would let
two men go on November 15 Furthermore, contrary to
Patios' testimony, Cannon testified that Panos told him on
November 11 or 12, 1968, that he intended to terminate
Baron and Peringer on November 15." Cannon
admittedly expressed surprise that Panos had selected
Baron as one of the two new-car salesmen to be
terminated, in view of his long service with Respondent,
and asked Panos why he had decided on Baron. Panos
replied, according to Cannon, that as far as Panos was
concerned, Baron was not a "producer," that he "hid
back in the weeds when there was anything to be done,"
and that he was uncooperative Cannon later added that
Panos had told him that during his tenure, Baron's sales
of new cars and accessories had fallen off
Evidence adduced by Respondent established that in
November 1968, Respondent received one shipment, on
November 19, of 18 new cars, and a total of 18 cars, 9
each on December 17 and 18, as compared with 126 cars
for the month of October, and 90 for the month before
that.' 9
It thus appears that Respondent's apprehensions
concerning the possible shortage of new cars, based on the
information from its distributor, actually materialized. It
is evident, however, that the distributor's qualified
assurance that full-scale shipments would be resumed by
January or February were equally well-founded Whether,
in light of the distributor's projection as to the availability
of new cars by the first of the year, it was actually
necessary for Respondent to terminate two new-car
salesmen, is not our province to decide Respondent was
entitled, in the exercise of its business judgment, to decide
that in view of the uncertainty as to the availability of
cars, it was more feasible for it to dismiss two new car
salesmen so that the earnings of the remaining salesmen
would not be drastically reduced The issue, as has
repeatedly been stated, is not whether an employer is
justified in terminating an employee for valid business or
economic reasons, but whether in reaching its decision, the
employer was, in fact, motivated by those reasons or by
reasons proscribed by the Act, that it to say, by the union
activities of his employees and his opposition to their
self-organizational rights In probing the subjective motive
of an employer, particularly where he denies knowledge of
union activities and union animus, it is necessary to
examine all the circumstantial as well as the direct
evidence
Baron was the oldest employee in length of service,
having been hired on January 5, 1964, nearly 5 years
"It will be recalled that this was a day or two before November 13, the
day on which Baron had the conversation with Cannon, which the latter
denied
"For the month of January 1969, when normal deliveries were resumed,
Respondent received 135 cars between January 2 and 31, 1969
305
before his discharge The next senior employee was
Peringer, who incidentally was discharged the day after
Baron . At least until August 1968, Baron's sales record
had never been criticized Like other new car salesmen he
worked strictly on commissions, and was paid twice
monthly
On July 3, he received a check for $270, as a prize in
the June sales contest in which he sold 27 cars,
representing a bonus of $10 per car, above his regular
commissions. On September 4, he received an additional
check for $220, consisting of a $10 bonus for the sale of
22 cars in the August sales contest. On the same date, he
received a $100 gift certificate, and a check for $65 as a
prize in the August sales contest toward the purchase of a
coat In June, he also received as a prize the use of
Ballard's 85-foot yacht for a Sunday outing to Catalina 19
According to Baron's uncontradicted testimony, he was
the only salesman who received a gift certificate or the use
of Ballard's yacht in the June contest, although one or
two other salesmen may have sold 20 or 21 vehicles that
month
In addition, Baron was a candidate for membership in
the Volkswagen Sales Guild, an association of
Volkswagen salesmen, which entitles the member to
special business cards imprinted with the emblem of that
organization, and a plaque for his desk, as well as a
dinner tendered in his honor. To qualify for membership
in this organization, salesmen are required to earn 500
points by selling 15 new or used cars per month for a
year As of September 1968, 2 months before his
discharge, Baron had earned 408 points, above average,
according to him. Baron testified, without contradiction,
that based on a report from the Guild, which he examined
with Cannon, he was the only salesman from the
Company whose name appeared on that list. During his
tenure at the Company, he was nominated salesman of the
year, representing the Company The nomination is based
on sales, appearance and background of the salesman. He
was interviewed over the telephone by a Volkswagen
factory representative, who questioned him about his
background, and learned of his nomination from the
Company' s then sales manager.
After attending meetings of the Union in March and
May, Baron joined the Union the following August He
attended the union meeting on the night of November 13,
at the Embassy Auditorium, in Los Angeles Admittedly,
he did not tell any of Respondent' s managerial officials or
supervisors that he was a member of the Union or that he
had attended any union meetings
Respondent categorically denies any knowledge of
union activity, or of Baron's participation therein, at any
time prior to the filing of the unfair labor practice charge
in this proceeding It is true, as Respondent correctly
points out, that knowledge of union activity is an essential
element of the General Counsel's case, and that the
burden of proving this, as well as other essential elements
of his case, rests upon him. However, as Respondent also
correctly observes, knowledge may be established by
circumstantial, as well as by direct evidence, if there is
substantial evidence warranting an inference of knowledge.
There is direct evidence of company knowledge of union
"According to Baron ' s uncontradicted testimony, under company policy,
salesmen who sold 20 vehicles in a month , received for each car, a $10
bonus in addition to his regular commissions , those selling 23 vehicles,
received a $100 gift certificate, and a salesman who sold 25 vehicles
received the use of Ballard's yacht for a Sunday outing for himself and his
guests
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity at its establishment in the interrogation of Kerze
in August or September. While the evidence of similar
interrogation of Baron, on or about November 13, is
highly controverted, the finding that it actually occurred
furnishes further support of knowledge of union activity
and, at least, the suspicion that Baron was involved. But
even without relying on the interrogation of Baron, the
circumstantial evidence is sufficient to justify an inference
of knowledge of union activity and Baron's involvement
therein
While Respondent denies any knowledge of the union
meeting on the night of November 13, it seems
improbable, in view of the small size of Respondent's
facility, the small complement of its sales force, the
publicity given to the meeting, the wide dissemination of
the union flyer announcing the meeting, which was
attended by some 600 or 700 automobile salesmen from
Southern California and Orange County, including
employees of Respondent, that Respondent could have
been oblivious to the union activities of its salesmen. The
fact that the mailings of the notice of the union meeting
were made to salesmen's homes, does not necessarily
preclude a finding that Respondent learned of the
meeting
The circumstances surrounding Baron's discharge,
moreover, two days after this meeting, themselves lend
further support to the inference that Respondent was
aware of the union activity at its establishment and
Baron's role therein For all but the last three months of
his nearly five years of employment, he had been a
satisfactory salesman. Such criticism as he may have
received was minor and insignificant .21) Indeed, Panos
himself admitted that if it were not for the shortage of
new cars, Baron's problems would have presented no
obstacle to his continued employment. In fact, Panos
testified that when he terminated Baron, he expressed the
hope that he would return when the new car shortage was
over.
Respondent's position, therefore, rests upon its claim
that because of the impending shortage of new cars, it was
obliged to reduce its sales force by two men, and that it
selected Baron and Peringer because they had the poorest
record of sales for the 90-day period between August and
October.
While Respondent's records establish that Baron's sales
were the second lowest, and Peringer's, the lowest of all
the salesmen for the period in question, no explanation
was offered as to why this 3-month period was selected as
the criterion for determining sales performance.
Considering that Baron had been employed nearly 5 years
at that time, (and Peringer, somewhat more than 2 years,
both longer than any of the other salesmen who were
retained), the selection of the 3-month period appears
"Among Panos' general complaints about Baron during the 3 months he
was sales manager, he mentioned that Baron shirked his duties in checking
in new cars delivered to the agency , failed to keep his demonstrator
automobile clean, failed to tidy up the office (which he shared with other
salesmen ), during the first week after!Panos was appointed sales manager,
became involved in disputes with other salesmen as to who was "up", that
is, which of them had the next turn with a customer , and took his lunch
period at 11 30 or 12 noon , returning at I or 1 30 in the afternoon, in time
to "take off" at the end of his shift Since ;P anos conceded that these
complaints did not play a significant part in his decision to terminate
Baron, it is unnecessary to consider whether these complaints were
justified Baron denied or satisfactorily explained these complaints and
former Sales Manager Kerze, Panos' predecessor , testified that Baron did
not shirk his duties , that he had had no occasion to reprimand Baron, and
that he regarded him a good salesman
unreasonable, if not arbitrary. As Kerze, who had 15
years' experience as an automobile salesman prior to
becoming sales manager, testified, "Everybody is entitled
to have a bad month or two I have had it, and I guess all
the rest of the salesmen in the business have had it. But I
am taking a period, a consistent period over a number of
years. I don't think [Baron] could have stayed at Ballard
Motors working with the other salesmen if he hadn't come
up to perform with the others "21
Moreover, even on the basis of Respondent's records of
sales and commissions paid, Baron's showing was not as
dismal as Respondent would have us believe. A summary
of comparative records of sales for the period August to
November 15, the date of Baron's discharge, reveals the
following
Date
Hired Name
Sub ,Nov.
Aug Sept Oct. Total 1-14 Total
1/ 4/64 Paul Baron 22 11 16 49 4 53
2/19/68 Jim Grobe 20 12 17 49 8 57
8/30/68 Bill Coffey - 22 27 49 9 58
8/ 1/68 John White 9 16 14 39 !8 57
8/11/68 Hal Messinger 10 ll 17 38 8 46
9/27 / 66 Czerny Perin a II 13 14 38 10 22
An analysis of these figures demonstrates that, as of
October 31, 1968, Baron was tied at first place with two
other salesmen, and far ahead of the three other salesmen,
without taking into account, (as Panos admittedly failed
to do), Baron's 1-week vacation in September, and as of
November 15, Baron's total sales for the period, with only
4 cars sold between November 1 and 15, still ahead of two
salesmen, and in third place of all the salesmen, without
taking into account Baron's 3-day absence on account of
illness in November (which, once, again, Panos failed to
take into consideration).
" While conceding that a good automobile salesman may "go sour,"
Kerze testified that during his tenure as sales manager (between July and
sometime in October, 1968) Baron did not "go sour "
"For the month of July, 1968, the corresponding figures were
Baron 10
Grobe 15
Coffey -
White 9 (1/2 month)
Messinger 10(1/2
month)
Peringer 10
By basing the average sales of salesmen employed less than the 4-1/2
month period (July to November 15) on their period of employment,
Respondent arrived at a distorted average, showing Baron 's average sales
as the second lowest among all salesmen Thus
Name Length of em to ment Total Cars Average
as o ov bol(I
Baron 4-1 /2 months 63 14
Grobe 4-1/2 months 72 16
Coffey 2-1/2 months 58 23
White 3-1/2 months 57 16
Messinger 3 months 46 15
Peringer 4-1/2 months 58 13
BALLARD MOTORS , INC. 307
Using another yardstick to measure Baron's sales
performance, his gross commissions from January 1, 1968,
to October 31, 1968, show his average monthly earnings
at $1,229 56, which, when compared with monthly
earnings of all salesmen for the year 1967, would rank
Baron as second highest in earnings for that year
Comparable records of earnings of all salesmen for the 10
1/2 months of 1968 were not made available.
When there is considered, in addition to the foregoing,
the uncontroverted evidence regarding the special prizes in
the sales contests during June and August 1968, and his
achievement toward membership in the Volkswagen Sales
Guild, his nomination as salesman of the year, described
earlier, it becomes evident that Respondent deliberately
utilized the relatively short period of time prior to the
discharge to place Baron in an unfavorable light so as to
justify his dismissal The fact that this period coincided
with Panos' employment as sales manager does not
explain why he, or Respondent's management officials,
did not take into consideration Baron's sales performance
over the entire period of his employment It will be
recalled that when Panos, according to Cannon's own
testimony, told Cannon on November 11 or 12, that he
intended to discharge Baron (and Peringer), Cannon
expressed surprise that Panos had selected Baron as one
of the two new-car salesmen to be released, in view of
Baron's long service with the Company, and asked Panos
the reason for his decision His reply, that Baron was not
a "producer," obviously based on his sales record over the
past 90 days, without regard to his previous performance,
has already been considered and found wanting Panos'
added reason, that Baron shirked his responsibilities and
was lacking in cooperation was not, as has already been
shown, a substantial factor in Panos' decision to terminate
Baron
Turning to the question of knowledge of union activity
and Baron's involvement therein at the time of his
discharge, while there is no direct evidence that
Respondent was aware of Baron's involvement in any
union activity, it is well-settled that knowledge or
suspicion of union activity may reasonably be inferred
from the circumstances surrounding the discharge.2J Such
an inference is warranted from Respondent's admitted
knowledge of the widespread organizational activity
among automobile dealers throughout Southern California
and Orange County, at least as early as May, 1968, when
Assistant General Manager Cannon saw the newspaper
advertisement announcing the union meeting; the
undisputed evidence regarding the interrogation of former
Sales Manager Kerze, late in August or early in
September, Cannon's interrogation of Baron on or about
November 13; the timing of his discharge 2 days after the
union mass meeting on November 13; the pretextuous
nature of his discharge, the relatively small size of
Respondent's facility; the proximity of the sales or closing
offices, and those of the sales manager and assistant
general manager, to the showroom floor where the
salesmen spent most of their working time; the small
number of salesmen, no more than 6, working split shifts,
so that there were no more than 3 salesmen on any shift;
and the totality of these factors 21 Whether or not
Respondent assumed Baron to be the principal protagonist
in the union activity, or whether he actually played a
prominent role in the organizational campaign, is
immaterial in the circumstances of this case. In view of
the small complement of salesmen, the discharge of one
salesman (actually, two here, although Peringer's
discharge has not been alleged to. have been
discriminatory), was sufficient to serve Respondent's
purpose of discouraging the remaining salesmen from
union affiliation, by "making an example" of Baron, who,
Respondent decided, was most vulnerable to discharge
because of his allegedly unsatisfactory sales record during
the arbitrarily selected period 25
By the same token, the fact that other union members
were still employed at the time of the hearing, or that
Respondent offered to retain Kerze as a salesman after
terminating him as salesmanger, does not establish the
absence of discriminatory motive 26
As to Respondent's contention that the record discloses
no evidence of union animus, it is sufficient that the
evidence adequately establishes opposition to the
self-organizational rights of its employees
It is, therefore, found, on the basis of the foregoing,
and upon the entire record, and upon the resolution of the
issues of credibility, that Respondent was aware of, or
suspected the union activity of its salesmen, on and before
November 15, 1968, and that it knew of or suspected
Baron's membership in the Union, and discriminatorily
discharged him on November 15, 1968, to discourage
membership of its salesmen in said Union.
It is further found that, by Cannon's interrogation of
Baron, on or about November 13, 1968, as to whether he,
or any other salesmen, was employed by the Union,
Respondent interfered with, restrained, or coerced
employees in the exercise of rights guaranteed in Section 7
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent, described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free now of commerce
V. THE REMEDY
It has been found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(I) and (3) of the Act It will, therefore, be
recommended that Respondent cease and desist from such
"See, e g , N L R B v Lawson Printers , Inc. 408 F 2d 1004 (C A 6)
""Notwithstanding a lack of direct evidence as to Respondent's
knowledge , such knowledge may be deduced - since secrecy with respect
to serious matters of general concern within a small facility (consisting of
one manager , two mechanics , and one tire service man ), cannot
realistically be maintained - particularly when statements and conduct
constituting statutorily protected activity have taken place within that
small facility " (cases cited ) 172 NLRB No 69, Trial Examiner' s Decision,
adopted, without comment on this point , by the Board See also The Circle
K Corporation , 173 NLRB No 107
"N L R B v Link-Belt Co. 311 U S 584, 602, N L R B v National
Garment Co , 166 F 2d 233, 238 (C A 8), cert denied 334 U S 845,
Montgomery Ward & Co, v NLRB . 107 F 2d 555, 559 (C A 7), F
W Woolworth Co v NLRB . 101 F 2d 658, 661-662 (C A 2),
Shedd-Brown Mfg Co. 102 NLRB 742 (suppl' d 103 NLRB 905, enfd 213
F 2d 163, 174 (C A 7), Broward Marine, Inc, 112 NLRB 1443, fn I
""An employer's failure to discharge all the union adherents does not
necessarily indicate an absence of discriminatory intent as to whose he did
discharge " WC Nabors Company . 89 NLRB 538, enfd 196 F 2d 272
(C A 5), Duro Test Corporation , 81 NLRB 976, Stewart Warner
Corporation , 55 NLRB 593 It is not necessary nor is it ordinarily feasible
to terminate every union member or adherent in order to discourage union
membership
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices, and take such affirmative action as
may be required to effectuate the policies of the Act It
has been found that Respondent discriminatorily
discharged Paul Baron, on November 15, 1968, and
thereafter failed and refused to reinstate him to his former
position It will, therefore, be recommended that
Respondent offer him immediate and full reinstatement to
his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay suffered by him
as a result of the discrimination against him, from the
date of the discrimination to the date of offer of
reinstatement Loss of pay shall be computed as
prescribed in F W Woolworth Company, 90 NLRB 289,
and interest on such backpay shall be computed at 6
percent per annum, in accordance with Isis Heating &
Plumbing Co. 138 NLRB 716 Respondent shall make
available to the Board, upon request, payroll and other
records necessary to facilitate the determination of
backpay due
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, the Trial Examiner
makes the following
CONCLUSIONS OF LAW
I Ballard Motors, Inc , Respondent herein, is, and at
all times material herein has been, an employer engaged
in commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and
the jurisdictional standards of the Board
2 International Association of Machinists District
Lodge 94 and its affiliated Local Lodge 2327, AFL-CIO,
are, and at all times material herein have been, labor
organizations within the meaning of Section 2(5) of the
Act
3 By discharging Paul Baron , on November 15, 1968,
and thereafter failing and refusing to reinstate him
because of his membership in the Union, Respondent has
discriminatorily discharged said employee to discourage
membership in a labor organization, thereby engaging in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act
4 By interrogating Paul Baron, on or about November
13, 1968, as to whether he or other salesmen were
employed by the Union, thereby interfering with,
restraining , and coercing employees in the exercise of
rights guaranteed in Section 7, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing finding of facts,
conclusions of law , and upon the entire record , it is hereby
recommended that Respondent , Ballard Motors , Inc, of
Anaheim, California, its officers , agents, successors, and
assigns , shall.
1. Cease and desist from
(a) Discouraging membership in International
Association of Machinists District Lodge 94 and its
affiliated Local Lodge 2327, AFL-CIO, or in any other
labor organization , by discriminating in regard to the hire
or tenure or terms and conditions of employment of its
employees because of their union affiliation or activities
(b) Coercively interrogating employees concerning their
union affiliation or activities, and
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to
self-organization, to form, join or assist International
Association of Machinists District Lodge 94 and its
affiliated Local Lodge 2327, AFL-CIO, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities
2 Take the following affirmative action, which, it is
found, will effectuate the policies of the Act
(a) Offer Paul Baron immediate and full reinstatement
to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings which he
may have suffered by reason of the discrimination against
him in the manner set forth in "The Remedy "
(b) Notify Paul Baron 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
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze and compute the amount of
backpay due under the terms of this recommended order
(d) Post at its place of business in Anaheim, California,
copies of the attached notice marked "Appendix "27
Copies of this notice, on forms to be furnished by the
Regional Director for Region 21, shall, after being duly
signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by other material
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of receipt of this
Decision and Recommended Order, what steps have been
taken to comply therewith 28
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals , Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify the Regional Director for
Region 21 , in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
BALLARD MOTORS, INC. 309
WE WILL NOT discourage membership in
International Association of Machinists District Lodge
94 and its affiliated Local Lodge 2327, AFL-CIO, or
any other labor organization, by discriminating in
regard to the hire or tenure or terms and conditions of
employment of our employees because of their union
affiliation or activity, except as authorized in Section
8(a)(3) of the Act
WE WILL NOT coercively interrogate employees
concerning their union affiliation or activity
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the right to
self-organization, to form, join, or assist the
above-named Union, or any other labor organization,
to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of mutual aid or protection, or to refrain from
any and all such activities, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, in conformity with Section 8(a)(3) of the
Act
WE WILL offer Paul Baron immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss
of pay he may have suffered by reason of the
discrimination against him
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named labor organization or any other labor
organization
BALLARD MOTORS, INC
(Employer)
Dated By
(Representative) (Title)
Note We will notify the above-named employee 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 of 1948, as
amended, after discharge from the Armed Forces
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
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles,
California 90014, Telephone 556-0335