California State Automobile Association

National Labor Relations Board - Board Decisions

Mar 25, 1970

181 N.L.R.B. 797 (N.L.R.B. 1970)

CALIF. STATE AUTOMOBILE ASSN. 797
California State Automobile Association and
Frederick J. Lambrecht . Case 20-CA-5412
March 25, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 12, 1969, Trial Examiner Herman
Corenman 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
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 and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner,' as modified herein
"(b) Coercively interrogating employees with
respect to the union or concerted activities of other
employees.
"(c) Warning employees to refrain from union or
concerted activity.
"(d) In any other manner interfering with,
restraining, or coercing employees in the exercise of
their right to self-organization, to form labor
organizations, to join or assist any labor
organization, to bargain collectively through
representatives of their own choosing, and to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or 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, as
authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and
Disclosure Act of 1959."
2. Add the following as the first indented
paragraph of the notice:
WE WILL NOT discourage membership in, or
activities on behalf of any labor organization, by
discharging or otherwise discriminating against
employees in any manner with regard to their
rates of pay, wages, hours of employment, hire,
tenure of employment, or any term or condition
of their employment
3. Delete from the third indented paragraph of the
notice the words "like or related "
TRIAL EXAMINER ' S DECISION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that Respondent,
California State Automobile Association, San
Francisco, California, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
modified.
1. Delete paragraphs 1(a) and (b) and substitute
the following:
"(a) Discouraging membership in, or activities on
behalf of any labor organization of its employees, by
discharging or otherwise discriminating against
employees in any manner with regard to their rates
of pay, wages, hours of employment, hire, tenure of
employment, or any term or condition of their
employment.
The Respondent has excepted to the credibility findings made by the
Trial Examiner It is the Board 's established policy, however, not to
overrule a Trial Examiner' s resolutions with respect to credibility unless, as
is not the case here, the preponderance of all the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
STATEMENT OF THE CASE
HERMAN CORENMAN, Trial Examiner This case was
tried at San Francisco, California, on August 19, 20, 21,
and 22, 1969 The issues litigated were framed by a
complaint dated April 22, 1969, alleging violations of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, and an answer dated May 2, 1969, filed
by California State Automobile Association, herein called
Respondent, which denies that Respondent violated the
Act. The complaint was based on a charge dated February
5, 1969, filed by Frederick J Lambrecht, an individual
All parties appeared at the hearing and were given full
opportunity to participate, to adduce relevant evidence, to
examine and cross-examine witnesses, to argue orally and
to file briefs. Briefs which have been carefully considered
were filed on behalf of the General Counsel and
Respondent
The issues are as follows
(a) Whether manager John Govi interrogated an
employee about the union activities of other employees;
(b) whether John Govi warned an employee against
engaging in union activity, and (c) whether the
Respondent discharged sales representative Frederick J.
Lambrecht because he engaged in union activities or other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection
Upon the entire record and my observation of the
witnesses, I hereby make the following.
181 NLRB No. 125
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a California corporation, with its
principal office in San Francisco, California, operates an
automobile club which furnishes miscellaneous service for
and sells automobile insurance to its members During the
past year, Respondent received revenues in excess of
$500,000 from the sale of memberships, travel services
and automobile insurance, and purchased materials valued
in excess of $50,000 from points located outside the State
of California
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II THE UNFAIR LABOR PRACTICES
A Background Events
At its San Francisco office the Respondent employs 51
sales representatives who spend most of the time away
from the office selling auto club memberships and
automobile insurance. They are compensated on a
commission basis. They are under the general supervision
of Mr John A. Govi, the manager of the Respondent's
sales department at San Francisco Two sales supervisors,
Fred Lom and Melvin R. Westenberg, assist Mr. Govi in
the management and direction of the sales force
On October 24, 1968, the sales force attended a
meeting at the Fairmont Hotel in San Francisco, where
top executives of the Respondent distributed and explained
to the sales representatives a new compensation plan for
the sales force providing, among other things, for
increased compensation effective January 1, 1969, as well
as prescribing a minimum sales quota and a termination
clause providing as follows
In any case when a representative fails to produce his
required minimum quota in any one or all the
categories' as outlined above, he is subject to
termination. The decision for termination on the
conditions of continued employment rest entirely with
management 2
The new compensation plan presented to the sales
representatives at this October 24 meeting raised two
matters which disturbed a great number of the sales
representatives One disturbing factor was the aforesaid
quoted provision on page 603 of the new compensation
plan which many employees regarded as a threat to their
job security The other issue which did not surface until
January concerned the effective date of the new sales
commission rates. The sales representatives had turned in
before January I their business processed in December
1968 in the expectation that it would be compensated at
the new rate because it became effective on or after
January I and were disappointed to learn that they were
being compensated at the old rate Executive management
of the Respondent took the position that all business
processed before January 1, 1969, even though effective on
or after that date would be compensated at the old
The categories referred to were
New/or Rein Master Memberships
New/or Rein Associate Memberships
New Auto Insurance Applications
New/or Rein High Limit Policies
'Respondent eliminated this clause from the compensation plan as
revised in May 1969
commission rate
The discontent among the sales representatives
concerning the threat to their job security as well as their
disagreement with Respondent's executives with respect to
the effective date of the new compensation plan was
communicated by a number of employees to Sales
Manager Govi
A meeting of the sales representatives called by Mr.
Neal Garrison, Respondent's executive vice president, was
held at the Respondent's place of business on January 14,
1969, at 8:30 a m. In addition to the sales representatives,
it was attended by a number of Respondent's officers and
executives, including Sales Manager Govt Mr Garrison
explained that there had been a misunderstanding about
the effective date of the new plan, and that the new plan
would apply to all business processed after January 1,
1969. Mr. Garrison told the group that the new plan was
not to be effective on business processed before January 1,
1969 After suggesting that the sales force discuss his
proposal among themselves, Garrison then left the
meeting with the other officers of the Respondent Mr
Govi, Sales Supervisor Lom and the 45 or so sales
representatives remained in the meeting The sales
representatives selected a committee composed of Daniel
Morris, Charles McDevitt, and Lambrecht Lambrecht
stated that the Respondent should pay since it had enough
money to pay them. After some discussion, the salesmen
voted to stick with their original contention that they
should be paid at the new rate for all business effective
January I, 1969, no matter when processed. Upon Mr
Govi's remarks to the group that they were not being
reasonable, a second vote was taken, and this time the
men voted in approval of a compromise proposal that the
new compensation rates would apply to all business with
an effective date of January 10, 1969, regardless of when
processed.
The committee of Lambrecht, McDevitt and Morris
drafted a letter to Mr Garrison stating the salesmen's
compromise proposal The letter was typed by Mr. Govi's
secretary, signed by the three committee members and
delivered to Mr. Garrison.
On January 21, 1969, at 8:30 a.m., executive officers
Frederico and Garrison called another meeting of the sales
representatives with respect to the new compensation plan.
This meeting was attended by a number of executive
officers, as well as most of the salesmen, and Mr Govi
and Mr. Lom.
Lambrecht testified that, having learned that Govi was
calling another meeting of the sales representatives on the
question of the effective date for commission payment
under the new schedule, he went to Govi's office shortly
prior to the meeting. Lambrecht testified that he told Govi
he should have nothing to do with it, that he had no right
to call the meeting, that it was intended the men shoujd
consider the matter themselves without the presence of
management, and that he thought Govi's calling another
meeting, and his presence at the meeting would tend to
sway the men in their vote According to Lambrecht's
testimony, Govi replied that he was the sales manager and
had a perfect right to call the meeting ' The meeting,
according to Lambrecht's testimony, was held that same
day Addressing the group, Vice President Richard D
Patton told them that since Mr Govi on December 26,
'1 do not credit Govi's denial of this conversation with Lambrecht I do
not regard it as significant that Lambrecht places this second meeting on
January 18 rather than January 21
CALIF. STATE AUTOMOBILE ASSN 799
1968, had given them misinformation concerning the
effective date of the new plan, after the sales
representatives had turned in their reports, that any new
business processed after December 27, 1968, would be
paid for at the new rate with an effective date on or after
January 1, 1969. With the adjournment of the meeting,
Mr Govi and Sales Supervisor Lom remained with the
sales representatives to further discuss the effective date of
.the new compensation plan Mr Govi, presiding, proposed
another vote to determine if they wanted to drop the
matter or stick with the January 10 effective date
According to Lambrecht's testimony, Mr. Govi told the
group of sales representatives that he felt their letter [of
January 14] was grossly unfair and that 15 to 20 of the
salesmen had told him they were not interested in
continuing the matter - that they wished to drop the
whole matter, and that they should have another vote
Lambrecht handed out blank ballots for the men to mark
their choice, and he tallied the ballots The vote was 24 to
21 in favor of sticking with the January 10 date At Mr.
Govi's suggestion, the four men who were unable to
attend the meeting because they were on the sales counter
were invited to his office to vote In the presence of
Lambrecht and Govi, both of whom explained the issue,
these four men also marked their ballots and the final
vote was 28 to 21 to stick to the January 10, 1969, date
previously voted by the men at the January 14 meeting
Lambrecht testified that about one hour later, Govi
called him into his office and told him "he didn't want to
hear another word out of me regarding the meeting, not
another -- he didn't want any more discussion regarding
the vote of the meeting "4
B. The Discharge of Frederick J Lambrecht and
Related Coercive Activity
Frederick J Lambrecht had been employed by the
Respondent as a sales representative out of its San
Francisco office since July 1962 Like the other sales
representatives, he was employed on commission, based
on his sales of new master memberships, associate
memberships, automobile insurance contracts, and
renewals thereof His work, like that of the other sales
representatives, was spent largely outside the office,
calling on prospects and canvassing business in the field
Occasionally he was scheduled to work on the sales
counter in the Respondent's office
When, on or about January 8, 1969, the commission
sheets showed that the sales representatives were being
paid at the old commission rate, Lambrecht was one of
several men who pointed this out to Mr Govi, telling him,
according to Lambrecht's testimony, "that there was a
little pay shortage "
Following the October 24, 1969, meeting called by the
Respondent at the Fairmont Hotel, setting forth new
minimum quotas, Lambrecht, after discussing with other
sales representatives their displeasure with ,the new
minimum standards and termination provisions set by the
new compensation plan, inquired of several men whether
they would be interested in a union to represent the sales
staff. In late October or early November 1968, Lambrecht
visited the San Francisco office of the NLRB and there
sought literature regarding employee rights and
procedures to follow in trying to organize a union.
At the NLRB offices he was given several pamphlets,
including pamphlets entitled "A Layman's Guide to Basic
Law Under the National Labor Relations Act "5
11 do not credit Govi's denial of this conversation with Lambrecht
Lambrecht talked to several men during November,
privately over lunch, and phoned men at their homes in
the evening to canvass their interest in forming a union
Lambrecht entered the hospital for nasal surgery on
December 2, 1968, and after his return to work in January
1969, he renewed his organizational efforts, contacting
additional salesmen, keeping lists of names of men giving
him favorable responses, no responses at all, or who were
doubtful. In January 1969, Lambrecht phoned the offices
of the NLRB requesting more literature This additional
literature was mailed to him and he distributed it to the
sales representatives Lambrecht continued to call the
men, talking to them collectively, usually over lunch, or
individually in the evenings Mr Lambrecht phoned the
offices of the AFL-CIO in January 1969 to refer him to
an insurance workers union He was referred to the
International Insurance Workers Union representative in
Daly City Attempts to contact this union representative
were made by Lambrecht before his discharge on
February 5, 1969 Of the salesmen contacted by
Lambrecht, initially 25 to 28 men expressed interest in
contacting a union.
Sales Representative Charles J McDevitt credibly
testified that on the morning of January 6 or 7, 1969,
while he was passing Mr Govi's office, Mr Govi, who
was walking by, stopped to engage McDevitt in
conversation Govi said to McDevitt, "Is Tom Hughes
involved with Fred Lambrecht in any union activity "
McDevitt replied that it was news to him and that he
wasn't aware that either one of them was involved in any
union activity Govi walked away without saying anything
further
Emrys Thomas Hughes, employed by the Respondent
as a sales representative 3 years, had many conversations
in November 1968 with Lambrecht concerning unionism
and what a union could possibly do for the sales
representatives, because, as he testified, the new
compensation plan providing for minimum quotas and
risks of termination presented to the men at the October
24 Fairmont Hotel meeting had given him as well as
others a sense of job insecurity Many of these
conversations between Hughes and Lambrecht occurred in
the Respondent's office late in the evening Ht ghes
testified that early in January 1969, Lambrecht handed
him a copy of the NLRB's Laymen's Guide and told him
to take it home and read it and return it to him as soon
as possible because he had only a few to distribute
Hughes further testified that he was called into Mr.
Govi's office on the morning of January 6 or 7, 1969. He
testified Sales Supervisor Westenberg was present Govi
went over Hughes' 1968 production figures, which he had
before him, on white foolscap paper, comparing them with
honor roll requirements. Govi told Hughes he was
dissatisfied with his production Govi told Hughes he was
putting him on 90 days probation and he had until the end
of April to bring up his production or be fired According
to Hughes' testimony, the conversation became heated,
and at the close of the conversation, Govi said, "If any of
this conversation which we have had between you and I
'This is a 51-page brochure which explains the rights of employees under
the Act, union election procedures , and prohibited unfair labor practices
11 do not credit Govi's denial of this conversation with McDevitt
McDevitt has been in the employ of the Respondent for 4 l/ 2 years and is
still employed He testified that he is acquainted with Lambrecht but has
no social contacts with him It is obvious that McDevitt 's testimony is not
in his self-interest I find that this interrogation of McDevitt by Govi
concerning the union activities of other employees violated Section 8(a)(1)
of the Act
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gets out, I'm going to can you." Hughes testified he
replied, "I wish you would ask me first whether I said
some of the things I am accredited for rather than give
me the blame primary" As Hughes got up to leave,
Hughes testified that Mr Govi said, "and I also don't
want you getting involved in the Union with Lambrecht."
Hughes replied, "I didn't know that Lambrecht was
involved in any union "'
A few days later in January, according to Hughes'
testimony, Mr. Govi suggested that he go out with Sales
Supervisor Westenberg to increase his sales production.
Hughes recollects that possibly around January 9 or 10 he
spent 3 days with Westenberg Hughes testified that on
this occasion and while Westenberg was sitting in Hughes'
car as they were about to drive away from the
Respondent's office, he asked Westenberg if he was going
to take Lambrecht out. Westenberg replied "that they
weren't going to bother with Lambrecht any more; they
were going to let him go."' Westenberg' s testimonial
account of this conversation in Hughes' automobile, which
he places as occurring on or about January 28 was that
Hughes told him he was worried about his job and wanted
to know if he was going to be fired. Westenberg told
Hughes he didn't think so and he would help him Then,
according to Westenberg, Hughes said, "I heard that Mr
Lambrecht was going to be fired," and Westenberg
replied, "You said it Tom, I didn't " I credit Hughes'
version of this conversation rather than Westenberg's In
the normal course of events, Sales Supervisor Westenberg
would be expected to know whether he would be scheduled
to take out Lambrecht, and Hughes' inquiry whether
Westenberg was going to take out Lambrecht was quite
probable in view of his recent tongue lashing by Govi, and
Govi' s warning not to get involved with Lambrecht and
the Union It is not unreasonable to conclude that as a
sales supervisor , Westenberg was told by Govi not to
bother taking out Lambrecht for further training as they
were going to let him go. Additionally, it would hardly be
in the self-interest of Hughes, who is still employed by the
Respondent, to give the testimony he did.
'I find that Govi's warning to Hughes not to get involved in the Union
with Lambrecht, in the hostile context in which it was made violated
Section 8(a)(I) of the Act
11 find that Westenberg is a supervisor within the meaning of Section
2(11) of the Act and that the foregoing remark made by him is attributable
to the Respondent
Westenberg has been employed by the Respondent as a sales supervisor
since February 1963 He is one of two sales supervisors who assist Sales
Manager Govi in the supervision of 51 sales representatives His official
title is Sales Supervisor He trains new salesmen in the art of selling and
he takes older salesmen who are behind in their quotas into the field for
further training and inspiration He, like other supervisors , approves
questionable insurance contracts submitted by salesmen He exercises his
discretion in determining whether a salesmen 's training shall end or
continue and the nature of the training process He makes oral and written
reports to Mr Govi concerning the progress of salesmen in the field, their
attitude , their salesmanship and work habits and substantial reliance is
placed on his opinions and recommendations in the training process He
sits in with Mr Govi on disciplinary procedures involving sales
representatives , and Mr Govi invited him and two other supervisors,
namely Lom and Goldman , to vote to discharge Lambrecht He
periodically acts as supervisor on the sales counter where he responsibly
directs the work of salesmen at the sales counter and assigns them their
tasks Unlike the sales representatives , he is salaried , has his own office,
and does not sell on his own but only in connection with salesman training
On the basis of the foregoing , I find that Westenberg has authority in the
interest of the Respondent to responsibly direct and assign employees and
to effectively recommend the assignment of and discipline of employees I
further find that such authority is not of a merely routine or clerical
nature, but requires the use of independent j udgment Section 2(11) of the
Govt testified that this meeting with Hughes with
respect to his low production was held on January 27 or
28 and not on January 6 or 7 as testified to by Hughes.
He also testified that Lom and not Westenberg was
present during this conversation Govi, in agreement with
the testimony of Hughes, testified that he had production
figures before him but on different paper than described
by Hughes In substantial agreement with Hughes'
testimony, Govi testified he told Hughes he was
disappointed with his production as he knew that Hughes
could do it. He testified further that he told Hughes,
"You are going to have to do it in the next 90 days
because Tom, if you don't do it -- I have no alternative
but to dismiss you "
Govi, rebutting Hughes' testimony, expressly denied
that he told Hughes that he didn't want him to get
involved with Lambrecht and with the Union, denied that
Hughes said to him that he didn't know that Lambrecht
was involved with the Union, denied he said to Hughes
that if any part of this conversation-came back to-him, he
would fire Hughes, and denied that Hughes said to him,
"I wished you'd asked me before talking to the other
employees "
Lom, in corroboration of Govi's testimony, testified
that he and not Westenberg was present when Govi
discussed Hughes' production with Hughes. He agrees
with both Hughes and Govi that Govt told Hughes he was
putting him on 3 months probation.
Lom testified that he believed Westenberg was called
into Govi's office after he left He further testified that
while he was present in Govt's office, he did not hear the
remarks above mentioned, testified to by Hughes and
expressly denied by Govt
Sales Supervisor Westenberg testified he was called into
Govt's office on January 28, 1969, after Lom had left
Only Govi and Hughes were present. He testified that
Govi told him he wanted him to work with Hughes for a
week and bring up his production He testified further he
said "OK" and left and that Hughes said nothing while he
was in the room.
Westenberg places the date as January 28, because, he
testifies, he left with Hughes about 1/2 hour later for the
field and his first written progress report on his field work
with Hughes is dated January 28, 1969
Considering the testimony of all four individuals,
namely Govt, Hughes, Westenberg, and Lom, I find it
unimportant whether this conversation with Hughes in
Govi's office occurred on January 6 or 7, or January 28
The fact that Westenberg's first progress report on
Hughes in this period appears on January 28, 1969,
persuades me that the conversation occurred closer to
January 28 than January 6 or 7
The substance of the conversation, irrespective of
whether it occurred in early January or late January, is
material to a determination of the merits of this case
Hughes' testimony, if credited, necessarily supports a
finding that Govi at that time was aware of Lambrecht's
union activity and was hostile to him for that reason
Contrary to Hughes testimony, I find that Lom, not
Westenberg, was in the room with Hughes and Govi while
his production was reviewed. I note, however, that the
testimony of Govt, Westenberg, and Lom shows that there
were two intervals when only Govi and Hughes were in
Act is to be read in the disjunctive Possession of any one of the
enumerated powers is sufficient to establish supervisory status N L R B v
The Process Corp, 412 F 2d 2l5 (C A 7), Jas H Matthews & Co v
NLRB , 354 F 2d 432 (C A 8 ), cert denied 384 U S 1002
CALIF. STATE AUTOMOBILE ASSN 801
Govt's office, the first interval between Lom's exit and
Westenberg's entrance, the second interval after
Westenberg's exit The nature and content of the disputed
remarks between Hughes and Govi persuade me that in all
likelihood, the disputed remarks were made in these two
intervals when he and Govi were alone This analysis
agrees with Hughes' testimony that, "As I got up to leave
from the office, Mr. Govi also, said, `and I also don't
want you getting involved with the Union with
Lambrecht " And also with his testimony, "If anything
of this conversation which we have had between you and I
gets out, I'm going to can you." I do not credit Govi's
denials As in the case of Sales Representative McDevitt,
who I credited rather than Govt, I credit Hughes'
testimony concerning the disputed remarks, not only
because it was not in his interest to give the type of
testimony he did against his employer who he still serves,
but also on the basis of his utter candor and
straightforward testimony His faulty recollection on
whether Lom or Westenberg were present in the room and
the precise date in January on which the conversation
occurred are details in which honest and disinterested
witnesses could be, and often are, mistaken. These
inconsequential defects in memory or observation do not,
however, detract from Hughes' credibility on the
substance of his conversation with Govi On the basis of
Hughes' testimony aforesaid concerning the substance of
his conversation with Govi, I find that the disputed
remarks were made and that Govi was aware that
Lambrecht was leading a union organizational drive and
for that reason became a target for Govt's animosity
On February 3, 1969, the sales counter was extremely
busy handling belated automobile registrations for the
year 1969. Sales Supervisor Lom testified that there were
approximately six or seven sales representatives either
working on the counter or circulating in the lobby of the
building, checking membership cards and directing the
people Lom returned to work at the counter at 12 30
p m on that day Shortly after Lom came to the counter,
Executive Vice President Neal Garrison, according to
Lom, who was in the lobby helping out, approached Lom
and inquired what Lambrecht was supposed to be doing
there. Lom replied he's supposed to be helping the people
and guiding them in the lobby Lom testified that at that
point, he and Garrison saw Lambrecht across the hall at
the top of the stairs at the entrance to the lobby talking to
a small child who had just entered the building with his
mother. Lom testified that he then walked over to
Lambrecht and "asked him to please apply himself and
help the rest of us," to which, according to Lom's
testimony, Lambrecht replied, "What in the hell is
Garrison domg down here?"' Lom reported this incident
to Govi about 3 p m on February 3. On that same day or
February 4, according to the testimony of Sales Counter
Supervisor Widlund, Mr. Govi told him not to put
Lambrecht on the floor as "Mr Garrison didn't want him
out there."
About 4 p.m on February 3, 1969, Mr. Govi
summoned Sales Supervisors Lom and Westenberg and
underwriting Supervisor Goldman to his office He told
'Lambrecht does not recall working on the sales counter in February
1969 He 'denies that Lom spoke to him in the lobby or that the aforesaid
incident to which Lom testified occurred I credit Lom Although
Lambrecht was not scheduled to work the sales counter February 3 or 4,
the last minute auto registration renewal required additional help
Widlund, the sales counter supervisor , testified he requested more help, but
he was not certain whether Lambrecht actually worked on the floor that
day
them of his plans to discharge Lambrecht because of his
poor production and attitude, and he asked for their
opinions. Govi went over Lambrecht's production records
for 1968 Lom was called on first for his opinion
He was reluctant to concur in a discharge because of
Mr Lambrecht's responsibilities to his wife and family.
When Govi pointed out that Lom should forget
Lambrecht's family responsibilities and think only about
the Respondent's interests, Lom agreed that Lambrecht
should be terminated Westenberg said, "He works fine
when he's working with me, and he has been going down
and down, and I will have to vote down too."" Goldman,
the underwriting supervisor, followed suit and voted to fire
Lambrecht on his attitude, but stated he wasn't familiar
with his production That evening, while riding home with
Vice President Honey, as was his custom, Govi related to
Honey the details of the incident in the lobby that day
involving Garrison, Lambrecht, and Lom which Lom had
reported to him earlier in the afternoon, as well as his
meeting with the three supervisors who concurred with
him that Lambrecht should be discharged.
Honey, who testified that he was fully familiar with
Lambrecht's production and attitude, having discussed it
with Govi on four or five occasions in the past 2 years,
agreed that Lambrecht should be discharged and
requested Govi to give him a memorandum on it the
following morning, and he would have a paycheck issue so
Lambrecht could be terminated February 5.
On February 4, Govt handed Honey a memorandum
recommending Lambrecht's discharge, for the following
stated reasons'
On many occasions in 1968 I spoke to the above
representative concerning his production and attitude.
Each time there was a promise of improvement, but this
failed to materialize.
In 1968 he had a net of (122) 1101's, which would
give him an average of 10.3 per month; which would
place him next to the bottom of our list, as far as S. F
Sales is concerned.
He had a net of 179 Master Memberships, an
average of 159 per month; which would place him on
the bottom of the list, as far as S F. Sales is
concerned.
He had 70 Associates, which would place him fourth
from the bottom, as far as S F. Sales is concerned
As far as his attitude he is very hostile and always
appears to find fault with our operation, being very
critical of many ways we operate.
Since we have given him many opportunities to
change his attitude and to better his production, I feel
it is time to dismiss him If this is agreeable with you,
the sooner, the better.
On February 5, Lambrecht was called into Mr Govi's
office in the morning In the presence of Sales Supervisor
Lom, Govt told Lambrecht that he had talked to him on
many occasions about his production and attitude, and
that although he knew Lambrecht could sell, it appeared
evident that he did not want to He told Lambrecht that
he was dismissing him, and he handed him his paycheck
Lambrecht asked to see Garrison, but Govi suggested that
he see Honey first Lambrecht agreed and Govi phoned
Honey who agreed to see Lambrecht shortly "
''The quote is from Westenberg's testimony
"Govt testified that on the morning of February 3, 1969, he called
Lambrecht into his office to go over his production report which he had
before him Govi testified he said to Lambrecht, "Your records for 1968
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From Mr Govt's office Lambrecht went to the office of
Honey, who was Govt's immediate superior According to
Lambrecht's testimony, Mr Honey agreed with Govt that
it was Lambrecht's production and attitude that was the
cause for his discharge. Honey testified additionally that
he told Lambrecht that upper management executives
were in agreement with Govt that he should be
terminated, that Lambrecht's attitude had dust as much to
do with his termination as his production, possibly more
Honey testified he pointed out to Lambrecht that he had
been placed on probation several times Lambrecht agreed
with this and, according to Honey, replied that Govt calls
everybody in, and nobody pays any attention to him, and
that he didn't either Honey further testified that
Lambrecht told him that he wished Frederico, Garrison or
anybody but that "god damned John Govi" had fired him,
because "I hate his [Govt's] guts." Honey further testified
that Lambrecht said, "Well, I can tell you this, you are
not going to get by this easy, I'm going to do something
about it '9111
1 do not credit Lambrecht's denial that he told Honey
that he hated Govt's guts or his denial that he told Honey
that no one pays attention to Govt Understandably,
Lambrecht was greatly disturbed by his abrupt discharge
and it is not unlikely he displayed his anger and chagrin in
the manner testified to by Honey
Lom checked out Lambrecht about 12 45 p m. on
February 5. While being checked out by Lom, Lambrecht,
according to the credible testimony of Lom, told him that
after a seven-year affiliation, he felt it was not just that he
should be dismissed because if it took seven years to find
out that his attitude and production was poor, he should
have been dismissed long before Lom further credibly
testified that Lambrecht said he personally did not dislike
him, Govt, Frederico, or Garrison, "but he hated the
whole damned bunch of us together."" Lom further
credibly testified that Lambrecht said he wasn't going to
lie still and let the matter go as it had" - "he was going
to take some action "
A day or two later, Lambrecht returned to pick up a
check for the draw he had previously requested of Govt
On this occasion, when Govt handed the check to him,
Lambrecht politely thanked him for it
C Lambrechi's Production and Attitude
The Respondent contends that it was not aware of
Lambrecht's union organization activity, and that it
discharged Lambrecht because of his poor production and
attitude
are low in all three categories , Fred, and this worries me again We have
talked and talked and talked " Lambrecht replied, "So)" Govi testified
further that he said, "all right , Fred, I guess we won't talk any more about
it," at which point Lambrecht left
1 credit Lambrecht 's denial that this incident and conversation occurred
1 find upon the basis of Westenberg 's remark to Hughes while sitting in his
car on or about January 28 that "they weren ' t going to bother with
Lambrecht any more, they were going to let him go " - that Govi had
already determined to let Lambrecht go That being the case, it is unlikely
that Govi would have called Lambrecht in to go over his production report
on February 3 as he had done on previous occasions to spur him on to
greater selling efforts
"That same day, February 5, 1969, Lambrecht filed an unfair labor
practice charge with the Board ' s San Francisco Office alleging that his
discharge violated Section 8(a)(1 ) and (3) of the Act
"I do not credit Lambrecht 's denial that he made this remark quoted
from Lom's testimony expressing hate for the whole bunch together
The evidence shows without question that Lambrecht's
production for 1969 -was considerably lower than the
average of the entire sales force for new business. His
poor attitude meant different things to different persons
With respect to his attitude, which Sales Supervisor
Westenberg characterized as a "bad attitude," he
amplified it further by testifying that Lambrecht had a
"rather violent temper." Westenberg testified that in
"calling on business men and everything, his attitude to
the people is fine And he puts on a very fine presentation,
and has a good personality when he shows it " But,
according to Westenberg, when Lambrecht "gets in his
car and starts to drive, he never stops talking all the time
he's driving, cussing out the guy in front of him, the guy
on the side of him. God damn this one, that one "
Testifying concerning Lambrecht's conduct in the office,
Westenberg referred to Lambrecht's habit of banging
down the telephone receiver when he was annoyed Citing
another example of Lambrecht's bad temper, Westenberg
testified as typical instances where Lambrecht was asked
if he had completed an insurance application or
questionnaire, in which case he might get mad and "slam
it down and rip his pen across it " Westenberg testified
that Lambrecht had been ill tempered ever since he'd
worked with him.' ° Assistant Vice President Honey,
referring to Lambrecht's attitude, testified that in
Lambrecht's earlier years of employment with
Respondent, "his production was excellent - and all of a
sudden it started going down hill aad our conversations
with Fred at the time were not only his production but
what happened to his attitude " Describing Lambrecht's
attitude further, Honey testified further
His attitude developed in the last couple of years
actually to the point you would say it was
anti-management Any policies that were set, any
suggestions that were made, he was against them; he
didn't agree with them, and it was really creating a
problem.
Sales Supervisor Lom testified that during Lambrecht's
entire employment with the Respondent, his attitude was
"hostile - to any type of management that represented
authority." Lom testified further that he was present on
about four or five occasions when Govi talked to
Lambrecht about his production in 1968. On these
occasions, according to Lom, sometimes Lambrecht would
be "very receptive and quiet and sometimes he was
rather hostile towards the both of us " Lom also testified
to Lambrecht's ill tempered habit of slamming the
telephone if the line was busy or he was kept waiting on
the line
Mr Govt and Mr Honey, in agreement, testified that
Lambrecht was a good producer until approximately the
last 2 years of his employment when both his production
and his attitude toward his job suffered In 1965
management was so pleased with Lambrecht's work
performance that Govi approached him to inquire if he
would be interested in a sales supervisor's position
Lambrecht showed no interest and his name was dropped
for consideration Govi's disappointment with Lambrecht
began to take form in November 1966 In that month
Govi had a "heart to heart" talk with Lambrecht on his
attitude and lack of production On that occasion, Govt
told Lambrecht "he had better shape up before the first of
the year or we would not see him in 1967 as an employee
of CSAA." In a memorandum to Lambrecht's personnel
file, Govi stated "his attitude is still poor, his production
"Westenberg has been sales supervisor since February 1, 1963
CALIF. STATE AUTOMOBILE ASSN 803
is poor. If this continues, I believe we should dismiss him
January 1, 1967; although I will report weekly on his
attitude and production."
On or about January 30, 1967, Govi, together with
Supervisors Westenberg and Lom, summoned Lambrecht
to his office after they received a report that Lambrecht
had misbehaved in a bar on January 27, 1967 During this
conference, Govi again took up with Lambrecht his poor
attitude and rather poor production. In a memorandum to
Lambrecht's personnel file, Govi commented "He has had
numerous arguments with a lot of help in the office and it
appears my last talk in November had little effect on him
I did tell him we wanted 100% improvement on attitude,
and production had to come up, or we would definitely
have to make dismissal. Now on a 30 day notice and if
there is not some changes in the next month , I'm going to
recommend that we discharge "
On March 21, 1967, Govi directed a memorandum to
Lambrecht in which he said:
As you are aware, you did not make the honor roll
in January or February, 1967. According to my figures,
you are low on Master Memberships, Associate
Memberships, dollar volume and applications.
Remember our conversations some time ago. It really
is a must for you to obtain the Honor Roll. My advice
to you is to get with it now, as I am very concerned:
18.7
Master Memberships 12 223
52
Associate Memberships 12 62
10.9
Applications 12 129
In late January 1968, Govi called Lambrecht to his
office about his poor production At that time, Govi told
Lambrecht that perhaps he ought to quit and get into
some other field, as Govi did not enjoy calling him to the
office all the time. Govi told Lambrecht "maybe I should
dismiss you." According to Govi's credible testimony,
Lambrecht, with tears in his eyes, told Govi he had
personal problems and pleaded for another chance. Govi
on this occasion agreed to give Lambrecht another chance,
but cautioned him that "we are going to check you pretty
close." Govi told Lambrecht that he was going to give
him a lot of help and assign Westerberg to help him.
Lambrecht's production continued low throughout most
of 1968, and Govi had Lambrecht in his office about five
or six times that year to discuss his low production and
attitude . Typical of these conversations was the one in
April 1968, when Govi called Lambrecht to his office to
talk about production and attitude At the April 1968
conference, Govi credibly testified that he told Lambrecht,
"This is not a fun talk, here we are talking about this,
Fred, you are not doing any better - I don't want you in
here, you don't want to be in here I'll give you all the
help I can get. I'll give you Mel [Westenberg], anything,
but let's go "
During the month of October 1968, Lambrecht made
the honor roll for the first time that year In the first
week of November, Govi and other members of
management, as well as other sales representatives, made
a special point to congratulate Lambrecht on that
occasion Mr Govi credibly testified that after each of his
talks with Lambrecht in 1968, "his enthusiasm would
improve but his work would not."
Lambrecht testified that he had been called into Mr
Govi's office many times about his low production He
places the last time he was called in prior to his discharge
was in October 1968 Testifying in that connection,
Lambrecht said:
he referred to my low production as he had done
over the seven years. On any given month I didn't make
the Honor Roll, I was told that my production was low,
that he couldn't see a future for me in the organization,
that I would be terminated if I didn't pick up my
production I have been told this over seven years, every
month I didn't make the Honor Roll. I was threatened
with a dismissal of my job
Lambrecht further testified that such talks occurred
probably 20 or 25 times over his seven years of
employment. Lambrecht further testified his recollection
was that he was called into Govi's office about his
production every month in 1968, except November and
December. He testified further that approximately three
years ago he was told by Govi he had 60 days to improve
his production or be terminated. He testified further that
with the expiration of the 60 days his production did not
substantially improve, but he was not suspended
Lambrecht made the honor roll twice in 1967 and only
once in 1968 In 1965 he made the honor roll seven times,
and in 1966 he made it six times. It was not a requirement
for maintaining a job The sales representatives making
the monthly honor roll were given recognition by the
affixing of a gold star after their names on the bulletin
board. Mr. Govi frequently talked to sales representatives
who didn't make the honor roll, but not always Mr Govi
estimated that he had talked to Lambrecht about 12 to 13
times during the last 2 1/4 years of his employment about
his poor production In the entire history of Lambrecht's
employment since 1962, the Respondent had never
discharged a sales representative for poor attitude or
production. The sales representatives are compensated on
a commission basis They are not salaried except during
the first 6 months or year of their employment.
Lambrecht' s earnings for 1967 were $11,901.24, for 1968,
$12,997.22 Lambrecht's earnings for the year 1968
exceeded the earnings of 20 other sales representatives. In
this group of 20 with lesser earnings, two salesmen had
longer employment than Lambrecht. They were George
Balliet, hired September 28, 1959, whose 1968 earnings
totalled $12,499.91 and Martin Girard, hired February 2,
1953, whose 1968 earnings totalled $11,330.69. The other
18 with lesser earnings had been hired in 1964, 1965,
1966, 1967, and 1968.
Other things being equal, it is to be expected that the
sales representative with the greater number of years of
employment should have greater earnings because of the
cumulative effect of renewal commissions.
The Respondent contends, and I find, that in appraising
the production of its sales representatives , it is interested
principally in the production of new business Renewals
require much less time and effort on the part of the sales
representative and in many cases are nearly automatic. It
is noted that the monthly honor roll is based on the
writing of new business, in the three categories, namely
master membership, associate memberships, and
applications for insurance (frequently referred to as
1101's)
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of its contention that Lambrecht was a poor
producer in 1967 and 1968, the Respondent points out
that, for the year 1968, excluding sales representatives
who were ill longer than Lambrecht, had been employed
but a short time, and those who worked in the field as
sales representatives for the first time that year,
Lambrecht's sales position was as follows- The office
average of master memberships was 272; high sales were
526, Lambrecht's sales were 179. Lambrecht stood last in
that category The office average for associate
membership was 113; high sales were 168, Lambrecht's
sales were 70. Lambrecht stood approximately fourth
from the bottom. The office average for new applications
(1101's) was 156, high sales were 295; Lambrecht's sales
were 122 Lambrecht stood approximately fourth from the
bottom. For the year 1967, Lambrecht's sales status was
as follows: The office average for master memberships
was 290; high sales were 425; Lambrecht's sales were 227
Excluding sales representatives who were ill and new sales
representatives in the field, Lambrecht was third from the
bottom of the list. The office average for associate
memberships was 95; high sales were 157; Lambrecht's
sales were 53 Using the same exclusions, Lambrecht
stood at the bottom of the list The office average for new
applications (I101's) was 148; high sales were 234;
Lambrecht's sales were 115, with the same exclusions he
stood approximately fourth from the bottom of the list. I
find that the aforesaid production figures and the standing
of Lambrecht in comparison with other sales
representatives in 1967 and 1968 are substantially correct
It is noted that in comparing Lambrecht's 1968
production with that of other sales representatives,
Respondent eliminated for comparison those who were ill
longer than Lambrecht. But in making such comparisons,
Respondent neglected to make an adjustment for
Lambrecht's illness from December 2 to December 31,
1968 Lambrecht entered the hospital for nasal surgery on
December 2, 1968, and was incapacitated for work during
the balance of December In making comparison with
other salesmen for the year 1968, I have concluded that in
fairness to Lambrecht, his production for 1968 should be
adjusted to show a 9 percent increase, as his actual
production was accomplished in 11 months. The adjusted
figures would then appear as follows: 193 master
memberships, 76 associate memberships, and 133
applications (1101's) On the basis of these adjusted
figures for the year 1968, Lambrecht would still remain at
the bottom of the list on master memberships. He would
be sixth from the bottom of the list on associate
memberships and would be ahead of Ladas (hired 1-9-67),
Lessorerie (hired 8-3-64), Hughes (hired 7-11-66), Gagne
(hired 10-20-65), and J Anderson (hired 4-26-62). He,
with two others, would be ninth from the bottom of the
list on applications for insurance (1101's). Thus, he would
be equal to M. Girard (hired 2-2-53), and D Tingley
(hired 1-21-63) and ahead of T Hughes (hired 7-11-66), J.
Van Kewen (hired 3-1-64), P Anderson (hired 6-15-64),
C. Ross (hired 2-1-62), C Jackson (hired 1-23-67), S.
Davidoff (hired 1-31-66), T. Lamgfitt (hired 3-23-53), and
G. Balliett (hired 9-28-58) In making the above
comparisons, I have omitted from the comparison the
names of salesmen who began employment in 1968
Although Mr Honey and Mr Govi testified that they
did not consider Mr Lambrecht's gross earnings in
concluding that he should be discharged, it is noted that
on another occasion Mr. Govi did give consideration to
dollar volume in evaluating Lambrecht's performance. It
is undisputed that Lambrecht's earnings for the year 1968
totalled $12,997.22, an approximate 9 percent increase
over his 1967 earnings of $11,901.24 Considering the fact
that Lambrecht was on the sick list for December 1968,
his dollar volume gain in 1968 over 1967 appears not
insubstantial
Comparing the 1968 gross earnings of Lambrecht with
the other sales representatives, it is noted that
Lambrecht's 1968 earnings exceeded the earnings of 20
other sales representatives, two of whom, George Balliett
and Martin Girard, had been with the Respondent longer
than Lambrecht Noting moreover that Lambrecht was.
out in December 1968, it is fair to assume that his
earnings were correspondingly reduced. Making an
adjustment for Lambrecht's December absence, it is quite
possible that his adjusted 1968 earnings would also place
him ahead of sales representatives Lynch, J. Anderson,
and Ross, who like Lambrecht were hired in 1962, as well
as Balliett and Girard who were hired respectively in 1958
and 1953.11 Moreover, a comparison of Lambrecht's new
production for the years 1966, 1967, and 1968 shows that
his production for 1968 was essentially no worse than
1967 or 1966, yet, he was not discharged in previous
years 16 In this connection I find on the basis of sales
representative Hughes' credible testimony that he too was
threatened with discharge by Govi on at least two
occasions in 1968 in the course of Govi's talks with
Hughes to spur him to greater production efforts
Additionally it is undisputed that Govi again threatened
Hughes with discharge in January 1969 when he placed
him on 90-day probation to bring up his production. But
in mid-February 1969, according to Hughes' credible and
undisputed testimony, Govi approached him and told him
he was not going to fire him Govi's denial that he
threatened Hughes with discharge in the latter part of
1968 is not credited. In the normal course of events it
could be expected that Govi would threaten Hughes as he
did Lambrecht on a number of occasions, as Hughes, like
Lambrecht, was a low producer of new business Govi's
undisputed threat to discharge Hughes in January 1969
for low production and his undisputed practice of making
similar threats to Lambrecht persuade me that Govi's
periodic discharge threats were part of the modus
operandi to get production out of the sales representatives
Conclusionary Findings
With the foregoing observations and findings which
demonstrate that Lambrecht was a low producer, but not
the lowest producer, I turn to the question whether
Lambrecht was discharged for cause, namely poor attitude
and production, as the Respondent contends, or for union
and concerted activity as the General Counsel contends
"Lynch earned $13,178 09, J Anderson, $13,925 48, Girard, $11,330 69,
Ross, $13,129 63, and Balliett, $12,449 91
"Lambrecht's production of new business for the 3 years is as follows
Master Associate
Memberships Memberships
Applications
( 1101's)
1966 223 62 129
1967 227 53 115
1968 (11 months ) 179 70 122
1968 (adjusted ) 193 76 133
CALIF. STATE AUTOMOBILE ASSN. 805
The burden of proof rests with the General Counsel I
have already found, contrary to Govi's testimony, that he
was aware of Lambrecht's leadership in union activity and
was hostile to him for that reason I based this finding,
inter alia, on the credible testimony of Sales
Representatives Hughes and McDevitt which I have
outlined earlier in this decision.
I am persuaded, and I find that, that but for his union
activity, Lambrecht would not have been discharged
Other circumstances which persuade me to that conclusion
are the following: (1) Lambrecht's production in 1968 was
very much the same as his production for the years 1967
and 1966, yet in those years he was not discharged; (2) in
the approximate 7 years that Lambrecht worked for the
Respondent, no sales representative had ever been
discharged for low production or poor attitude; (3)
discharge threats to sales representatives were never
carried out and were a modus operandi for getting
production out of the sales force, wherein low producers
were threatened with discharge and placed on probation
and good producers were placed on the honor roll and
congratulated; (4) Lambrecht was not the lowest producer
and other sales representatives with production as low or
lower than Lambrecht were not discharged (5)
Lambrecht's gross earnings of $12,997.22 for 11 months
of work in 1968 represented a substantial improvement
over his 1967 gross earnings (6) Lambrecht's hot temper,
testified to by Respondent's witnesses as part of his poor
attitude, had existed as long as he had been in
Respondent's employ. Respondent's claim that it was a
contributing cause for Lambrecht's discharge after it was
tolerated for so many years before the Respondent's
discovery of Lambrecht's leadership in the union
movement does not impress me." (7) Vice President
Honey's generalization that Lambrecht's poor attitude was
that of being anti-management "was not treated as a
cause for discharge until Lambrecht's anti-management
moves involved him in his union organizational campaign."
(8) Since Lambrecht was paid on a commission basis
and his earnings were based on sales, there would be scant
reason to discharge him for low production. (9) The last
time Govi had spoken to Lambrecht about his production
prior to his discharge on February 5, 1969, was the
occasion in early November 1968, on which he and other
executives congratulated Lambrecht for making the honor
roll in October 1968. Nothing significant intervened
between November 1968 and February 5, 1969, to explain
Govi's sudden decision to discharge Lambrecht, except
Lambrecht's leadership in the union organizational
campaign to which Govi had demonstrated his hostility by
his remarks to McDevitt, Hughes and Lambrecht
heretofore found to have been made" (10) By his remarks
to Lambrecht after the January 21 sales representative
meeting in which the salesmen voted to adhere to their
proposal reached at the January 14 meeting, Govt
evidenced his animosity to Lambrecht in connection with
his concerted activity Earlier that day Lambrecht
approached Govi and objected to Govt's attendance at the
meeting At this meeting Lambrecht assured the secrecy
of the vote by taking the initiative to hand out ballots.
When the vote went against management's proposal, Govi
called Lambrecht into his office and told him he didn't
want to hear another word out of him regarding the
meeting. (11) The hardening of upper management's
attitude to Lambrecht when it discovered his leadership in
the union campaign is manifested by Vice President
Garrison's annoyance with Lambrecht's innocent
conversation with a child on February 3 who had entered
the lobby of the Respondent's office building with his
mother near the expiration time for auto registration. On
this occasion Lambrecht had not been scheduled to work
on the sales counter and he has no recollection of being on
the sales counter that day. (12) I have previously found
that some time before February 3, Respondent's upper
management had determined to discharge Lambrecht.
This is evidenced by Sales Supervisor Westenberg's
remark to Hughes in January "that they weren't going to
bother with Lambrecht any more; they were going to let
him go." The February 3 meeting between Govi and
Supervisors Lom, Westenberg, and Goldman voting for
Lambrecht's discharge, I have concluded was an empty
formality, as was Honey's concurrence with Govi on
February 3 that Lambrecht must go
Upon the entire record, I find that Lambrecht was
discharged because of his leadership in union and
concerted activity But for his union activity, he would not
have been discharged. Accordingly I find that by
discharging Lambrecht on February 5, 1969, the
Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by Section
7 of the Act and discriminated against Lambrecht because
of his union activity, thereby discouraging membership in
labor organizations Thereby the Respondent engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act
III THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
occurring in connection with the operations of Respondent
described in section I, 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 flow
thereof.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2 By interrogating an employee concerning the union
activity of other employees and by warning an employee
to refrain from union and concerted activity, the
Respondent restrained and coerced employees in violation
of Section 8(a)(1) of the Act.
3 By discharging Frederick J. Lambrecht from
employment, the Respondent restrained and coerced
employees and discriminated against Lambrecht because
of his union and concerted activities, and thereby engaged
in unfair labor practices within the meaning of Section
"Although Sales Supervisor Westenberg testified that Lambrecht would
display his hot temper by such practices as slamming the telephone, he
further testified that "in calling on business men, his [Lambrecht's]
attitude to the people is fine, and he puts on a very fine presentation, and
has a good personality when he shows it "
"The Respondent argues that Lambrecht's concerted activities could not
have been the reason for his discharge , as no reprisal was taken against
Sales Representative Morris who spoke against the Respondent's
commission rate effective date at the January 21 meeting This argument
ignores the fact, which I have found, that Respondent was hostile to
Lambrecht because of his leadership in the union organizational campaign
"Govi was well aware month by month of Lambrecht's sales production
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1) and (3) of the Act
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action which
is necessary to effectuate the purposes of the Act.
I shall recommend that the employment status of
Frederick J. Lambrecht be restored to what it would have
been but for Respondent's discrimination against him, and
that Respondent offer him immediate and full
employment as a sales representative without prejudice to
his seniority or other rights and privileges, and make him
whole for any loss of pay that he may have suffered by
reason of the discrimination against him, by paying him a
sum of money equal to that which he normally would
have earned from the date of the discrimination to the
date of employment, less net earnings during such period,
in accordance with the Board's formula set forth in F W
Woolworth Company, 90 NLRB 289, together with
interest thereon at the rate of 6 percent per annum as
prescribed in Isis Plumbing & Heating Co . 138 NLRB
716.
On the basis of the foregoing findings of fact and
conclusions of law, and the entire record herein, I
recommend that, pursuant to Section 10(c) of the Act, the
Board issue the following:
ORDER
California State Automobile Association, its agents,
successors, and assigns, shall:
l.' Cease and desist from:
(a) Restraining and coercing employees in the exercise
of rights to engage in activities guaranteed by Section 7 of
the Act.
(b) Discharging employees from employment because
they have engaged in concerted and union activities for
their mutual aid and protection
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer Frederick J. Lambrecht immediate
reinstatement to his former position as sales
representative, without prejudice to his seniority or other
rights or privileges, and make him whole for any loss of
pay he may have suffered by reason of the discrimination
against him in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) If the above-named employee is presently serving in
the Armed Forces of the United States, he will be notified
of his right to full employment upon application in
accordance with the terms of this Order, pursuant to the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Services.
(c) Preserve and make available to the Board or its
agents, upon request, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post in conspicuous places at its place of business
and other places where notices to its employees would
normally be posted, copies of the attached notice marked
"Appendix."'" Copies of said notice, on forms provided by
the. Regional Director for Region 20 of the National
Labor Relations Board, after being duly signed by
Respondent, shall be posted by Respondent immediately
upon receipt thereof and maintained by it for 60
consecutive days thereafter. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of receipt of a copy
of this Decision, what steps Respondent has taken to
comply herewith."
'*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."
"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 20, in writing , within 10 days from the date of this Order, what
steps Respondent 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
We hereby notify our employees that.
WE WILL NOT interrogate employees with respect to
the union or concerted activities of other employees
WE WILL NOT warn employees to refrain from union
or concerted activity.
WE WILL NOT in, any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing, or 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
WE WILL offer Frederick J. Lambrecht immediate
and full reinstatement to his former position as sales
representative, without prejudice to his seniority or
other rights and privileges, and make him whole for
any loss of earnings suffered by reason of
discrimination against him.
All of our employees are free to become or to remain,
or refrain from becoming or remaining, members of any
labor organization, except to the extent that such rights
may be affected by an agreement requiring membership in
a labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
CALIFORNIA STATE
AUTOMOBILE
ASSOCIATION
(Employer)
Dated By
(Representative ) (Title)
CALIF. STATE AUTOMOBILE ASSN.
Note: If the 'above-named employee is serving in the
Armed Forces of the United States, we will notify him of
his right to full employment upon application, in
'accordance with the terms of the Order herein , pursuant
to the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Services
This is an official notice and must not be defaced by
807
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,
450 Golden Gate Avenue, Box 36047, San Francisco,
California 94102, Telephone 556-0335