Cavalier Olds, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1968

172 N.L.R.B. 807 (N.L.R.B. 1968)

CAVALIER OLDS, INC. 807
Cavalier -Olds, Inc . and Professional Automobile
Salesmen Association
Cavalier Olds, Inc. and George V . Paul. Cases
8-CA-4610, 8-CA-4611, 8-CA-4687, and
8-CA-4657
June 28, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On December 27, 1967, Trial Examiner
Frederick U. Reel issued his Decision in the above-
entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair
labor practices within the meaning of the National
Labor Relations Act, as amended, and recommend-
ing that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also
found that the Respondent had not engaged in cer-
tain other unfair labor practices. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as herein modified.
Member Fanning, dissenting:
I do not agree with my colleagues' adoption of
the findings of the Trial Examiner that the Respon-
dent violated Section 8(a)(3) of the Act by laying
off Michael Pace and Daniel Ellisin on April 5,
1967, and by "constructively" discharging James
and Michael Pace on May 19, 1967.
In my view, a clear preponderance of the
evidence does not support the Trial Examiner's
conclusion that the layoffs were unlawful. Respon-
dent's financial position at the time of the layoffs
was not impressive. In the circumstances, cutting
the sales force to achieve overhead savings in
reduced salaries, bonuses, and commissions appears
to have been an appropriate form of economic
retrenchment.
The evidence in support of the alleged unlawful
constructive discharges is likewise, in my opinion,
insubstantial . The record does not demonstrate by a
clear preponderance of the evidence that the
Respondent took the offensive in creating and
maintaining the unsettled labor situation at the
agency. Rather, the record shows a definite pattern
of insubordination and obstruction on the part of
the employees. Although the Respondent may not
have been blameless in compounding the situation,
the salesmen's conduct, coupled with the Respon-
dent's weak financial position, in my opinion,
renders the Trial Examiner's 8(a)(3) findings as to
the Paces unsupportable. Accordingly, I would
dismiss all the 8(a)(3) allegations of the complaint.
Moreover, I would also dismiss the allegations of in-
dependent 8(a)(1) violations inasmuch as they
form the major part of, and are cumulative to, the
8(a)(3) allegations which I would dismiss.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts . as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Cavalier Olds, Inc.,
Akron, Ohio, its officers, agents , successors, and as-
signs , shall take the action set forth in the Trial Ex-
aminer 's Recommended Order, as herein modified:
1. Amend paragraph 1(a) to read as follows:
"(a) Discharging, laying off, or otherwise dis-
criminating ..
2. Amend the second indented paragraph of the
notice as follows:
WE WILL NOT layoff, discharge, threaten to
discharge, or harass any employee ....
FREDERICK U. REEL, Trial Examiner: These con-
solidated cases were tried at Akron, Ohio, on Oc-
tober 26 and 27, 1967,1 pursuant to charges filed
the preceding May 22, June 22, and July 18, com-
plaints issued July 7 and 26 and August 23, answers
duly filed, and an order consolidating cases issued
August 23. The complaints, as amended at the
hearing, alleged that Respondent, herein called the
Company, violated Section 8(a)(1) of the Act by
various acts of interference, restraint, and coercion,
and violated Section 8(a)(3) and (1) by laying off,
discharging, or constructively discharging several
employees because of their union activity.
Upon the entire record, including my observation
of the witnesses, and after consideration of the
' All dates herein refer to the year 1967
172 NLRB No. 96
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
briefs filed by the General Counsel and the Com-
pany, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The pleadings establish that the Company, an
Ohio corporation engaged at Akron in the opera-
tion of an automobile dealership, annually receives
over $500,000 from the retail sale of automobiles
and annually purchases materials valued in excess
of $50,000 from points directly outside the State.
On these facts, the Company admits, and I find,
that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. The pleadings
further establish, and I find, that Professional Au-
tomobile Salesmen Association, herein called the
Union, is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Employees Join the Union and Go on
Strike
Early in 1967 the Union was engaging in organiz-
ing activity in the Akron area. When this fact came
to the attention of Company President John
Cavileer he urged his employees to attend a union
meeting and to find out what they could about the
organization. In mid-February a number of the
Company's salesmen signed union cards, and the
Union filed with the Board's Cleveland office a
petition for certification. The Cleveland Regional
Office duly informed Cavileer of the filing of this
petition, whereupon Cavileer called a meeting of
the employees, berated them for being "stupid"
and "idiots" to sign union cards, and said he felt
"stabbed in the back" by their having signed cards
without letting him know.
A few weeks later, on March 16, without prior
notice to the Company, the six salesmen employed
by the Company went out on strike, as did many of
the other salesmen employed by other automobile
dealers in the Akron area. During the strike, the
'employees picketed the Company, carrying signs
announcing that the Company was "unfair." The
record does not clearly reveal the purpose of the
strike, although there is evidence that the Union
had demanded recognition, and also that several of
the pickets told Cavileer they were not angry at
him. Cavileer, who admitted that his pride had been
hurt by learning from an outside source (the
Board) rather than directly from his employees that
they had joined the Union, also admitted that he
felt irritated at the men and the Union because of
the strike. The day after the strike started the Com-
pany filed a civil suit against four of the six
salesmen, alleging that their picketing was unlaw-
fully interfering with its customers and other em-
ployees, and seeking damages in the amount of
$22,375 plus $875 for each day the picketing con-
tinued.2
B. The Layoff of M. Pace and Ellisin on April 5
The strike ended April 5 and four of the Com-
pany's six salesmen returned to work; the remaining
two (Pearson and Schoonover) quit, and are not in-
volved in this case. On the morning of April 5 when
the men returned to work they were taken to the
office of the Company's attorney to give deposi-
tions in the civil suit against them. They returned to
the salesroom that afternoon. Shortly after their
return, the Company laid off its two junior
salesmen (Michael Pace and Daniel Ellisin), telling
them, individually, that the Company had to "tight-
en its belt" as business was bad, but that if it
improved, they would be recalled. The two remain-
ing salesmen , James Pace and George Paul, worked
from April 5 to May 5, when Paul was discharged
(whether for just cause or for union activity is at
issue here), and Michael Pace was recalled on May
9. The Pace brothers both left on May 19, and at
issue here- is whether they were "constructively
discharged" for union activity. The Company then
hired other salesmen but did not recall Ellisin, who,
however, saw a "help wanted" advertisement the
Company had placed in the newspapers early in
July, applied for the job, and was hired.
Turning first to the April 5 layoff, this was for all
practical purposes a failure or refusal to reinstate
two economic strikers, as the men were laid off the
same day they returned, and almost immediately
after their return from giving depositions at the
Company's behest. The normal rule is that un-
replaced economic strikers are entitled to reinstate-
ment upon application. In the ordinary case if an
employee, apparently satisfactory and necessary to
the business before a strike, is not reinstated after
the strike, the inference is reasonable, if not in-
escapable, that in the absence of other explanation
the reason for his separation is his having par-
ticipated in the strike, a statutorily protected activi-
ty.3 In this situation, the Employer may rebut this
presumption by a showing that the discharge,
layoff, or failure to reinstate was caused by some
other circumstance, such as the unavailability of
work or need to retrench. This appears to be the
Employer's contention here.' In dealing with it, we
s At the time of the hearing before me, the civil suit in question had been
dismissed , with leave to the plaintiff to appeal or to plead further
3 The protection normally attaching to a strike may be dissipated, of
course, by unprotected misconduct or by some illegality inherent in the
strike No such contention is raised before me The suggestion that the
strike was unwise , or was " unfair " in that the Company had no warning and
had done no wrong , does not affect its character as protected activity
N L R B v Mackay Radio & Telegraph Co , 304 U S 333, 344
4 This point is not discussed in the Company's brief, which does not
discuss the legality of the layoffs I attribute this defense to the Company in
the light of the evidence it adduced at the hearing
CAVALIER OLDS , INC. 809
bear in mind the holding of the Sixth Circuit in a
similar situation that "Proof that jobs were
unavailable was an affirmative defense, and the
burden of establishing it rested upon respondent
company." N.L.R.B. v. Cambria Clay Products
Company, 215 F.2d 48, 56.
The testimony adduced by the Company falls far
short of sustaining that burden. Mike Baitz, vice
president and general manager , testified that Com-
pany President Cavileer when he laid off Ellisin
"told Danny that things weren't that good right
now and that he couldn't afford to have him as a
salesman because during the strike we three sold as
many cars as the eight salesmen did before and they
would just figure they might keep the minimum
crew so the guys could make money instead of a lot
of guys there ." On cross-examination , Baitz ad-
mitted that car sales were better in March and
April than they had been in January and February.
The cross-examination continued:
Q. Perhaps you didn't understand my
question, sir.
It isn't how many cars these gentlemen sold,
but my question is that, from your own figure,
business picked up. At the time business was
picking up you were telling two people you
couldn't keep them on because business was
bad.
A. It wasn't that bad, but not that good
either. We should make about 25 or 30
thousand dollars a month. We don't do it.
Q. What I am asking you is simply this: The
reason you gave for laying off these men wasn't
the truth. It wasn't really the reason for their
layoff?
A. Well, Jack said, "Keep the men down to
so many, a few guys. We have to make some
money." It was slow and we figured it was that
slow.
Q. Going back to my question again, you
haven't answered. The real reason for these
men being laid off was not because of some
economic condition that existed with the Com-
pany at that particular time, was it?
A. Well, maybe not at that particular time.
That came up.
0. The reason they were laid off was
because they were on strike?
A. No.
Q. What was the reason then?
A. We just wanted to cut down the sales
crew.
Q. Why did you want to cut down the sales
crew?
A. So the other men could make money. If
three men could sell as much as eight men, we
figured, well, it is best to do it that way.
Later Baitz adhered to this explanation in an-
swering questions of the Trial Examiner:
TRIAL EXAMINER: All right. You said several
times that one of the reasons for cutting the
sales force in April from what it had been be-
fore the strike was so that salesmen could
make more money and, of course, it is per-
fectly clear if the same number of cars are sold
by two salesmen as formerly were sold by four
salesmen that they are going to be selling more
cars and making more money. It didn't cost the
Company any more once they had dropped
that $50 guarantee.
THE WITNESS: It was only in concern for the
salesmen, we didn't think we needed them.
TRIAL EXAMINER: I know, but it wasn't
economy from the Company's standpoint
when you got rid of that $50 salary, was it?
THE wITNESS:I don't know what you mean.
TRIAL EXAMINER:What I am trying to say is:
the labor costs to the Company didn't go up or
down, depending on the number of salesmen,
once you got rid of that $50 salary, because
the labor cost to the Company was computed
on the percentage of the cars sold; is that
right?
THE WITNESS: Yes, that is right.
Company President Cavileer likewise testified as
to the reasons for the April 5 layoff. Explaining that
the Company had suffered losses in January and
February although it showed a profit for March and
a net profit for the 3 months, Cavileer continued:
A. The automobile industry as a whole was
down, I believe, if I recall, sir, about 20 or 30
per cent, in that vicinity. Our overhead crept
up, and everything considered, I thought
economically we would cut down our sales
force to a very small sales force. By doing this
we cut out many of our overhead things like
demo expense, our various insurances, fringe
benefits and everything like that, because I am
in business to try to make money, and-
Q. Go ahead.
A. It was just that simple. Basically it was
economics.
0. Prior to the strike, up to March 15, had
the employees' sales and individual earnings
been high? Could you characterize them as
high?
A. Not as high as I would hope them to be,
because actually the more they make, the more
gross we make.
Q. Would these base sales earnings on the
part of the salesmen who are working prior to
the strike have any bearing on your decision to
operate with two salesmen?
A. I didn 't understand.
0. The fact that the salesmen before the
strike were not earning what you considered to
be a lot of money, did that have any bearing on
your decision to cut the men down?
A. Yes, it actually did. I always wondered if
we didn't have too many salesmen for them
economically to make out themselves.
0. How does having less salesmen affect this
situation of low earnings?
A. Very simply. I mean , it is a matter of
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether two fellows cut the pie or whether-six
cut the pie.
As I understand the Company 's position with
respect to the April 5 layoff ( see fn . 4, supra), it
seems fair to state that the Company asserts a dual
basis for its action : declining business , and the
desire to spread available sales among a smaller
force to enhance the income of the remaining
salesmen . The second of these reasons appears
suspect , as the Company even without the layoffs
would have reduced its complement from six to
four , and the record is devoid of evidence that the
salesmen , even when there were six, were urging
that the staff be reduced . Cf. Forest Dodge, Inc.,
145 NLRB 1463, 1466, 1470. As to the alleged
decline in business , the financial statement shows
that sales were on the increase , as indeed would not
seem unusual at the start of the spring season.5 In
this connection it may be noted that when Ellisin
returned in July , the Company was again employing
four salesmen . Cf. N.L.R.B. v. Kingsford , 313 F.2d
826, 830 (C.A. 6). , where the court observed, "It
is significant that the discharged body shop em-
ployees were never replaced."
As the Kingsford case emphasized (313 F.2d at
830, 831 ), it is not for the Board to substitute its
"business judgement ... for that of the employer,"
whose "wisdom or business acumen " is not "deter-
minative of whether there is a violation ." And the
court 's statement , as an appellate tribunal , must be
reechoed with real fervor by the trier of fact: "In a
case such as this, the task of determining motiva-
tion is truly difficult, when the employer advances
economic reasons of any substance as that which
brings about the change ." The proof of financial
difficulty in Kingsford (313 F.2d at 829), was far
more convincing than that introduced here; the
proof of antiunion feeling on the employer 's part is
at least as strong in the instant case ; and the fact
that the layoffs here, unlike those in Kingsford,
coincided with the end of a strike would appear to
shift the burden of proof (see Cambria Clay, supra),
and at the least permits an inference that the layoffs
were related to strike activity.
I conclude , after considering all the factors, that
in laying off two of the strikers on the date of their
return from the strike , the Company was motivated
in substantial part by Cavileer 's admitted irritation
at the men over their having joined the Union and
gone out on what he regarded ( perhaps correctly,
but see Mackay, supra ), as an unjustified strike. It
follows that the layoffs of Michael Pace and Ellisin
violated Section 8(a)(3) and (1) of the Act.6
C. The Discharge of Paul
On May 5 the Company discharged salesman
George Paul, handing him a letter that set forth the
following five grounds for the action:
1-Lack of creating any business
2-Lack of sales performance
3-General attitude
4-Moral character
5-Lack of cooperation with other employees
As noted above, Paul was replaced by Michael
Pace, who was recalled from layoff. Later Paul ap-
plied for unemployment compensation. According
to the decision of the appeals referee in that
proceeding, Company President Cavileer stated
that he "had no personal knowledge of the infrac-
tions alleged in the letter of discharge," and Paul
eventually obtained a finding that he was
discharged "without just cause" as the Company
"did not present any evidence to substantiate the
alleged reasons ...." Whatever Cavileer may have
told the appeals referee, he testified before me in
some detail as to the grounds for Paul's discharge.
As Cavileer's testimony was corroborated by other
witnesses , I am inclined to place little weight on the
decision of the appeals referee.
The evidence before me as to Paul shows that in
several of the matters mentioned in the discharge
letter his performance was as good or better than
that of James Pace, who was the only other
salesman employed between April 5 and May 5. In
two respects, however, the Company had specific
fault to find with Paul. In the first place, Paul had
from time to time engaged in sketching cartoons
bordering on the pornographic side . One of these
Paul himself showed to Company President
Cavileer on April 6, and the latter testified that he
wanted to fire Paul at once, but was dissuaded by
company counsel, who suggested that a discharge
so soon after the strike might be construed to be a
reprisal for union activity. One month later, how-
ever, Paul voiced complaint to the telephone opera-
tor over her failure to route sales calls to him on
the floor, and his manner was so offensive that after
he left her office she broke into tears and went
home for the rest of the afternoon. As soon as
Cavileer learned of this episode from another office
employee, and without checking with Paul, he or-
dered Paul's discharge.
On this record, there is ample ground for suspi-
cion that Paul's support of the Union and of the
strike played a significant role in his discharge, and
that had Paul been antiunion the Company would
s Moreover , analysis of the statement discloses that the losses to which
Company President Cavileer referred are not necessarily attributable to the
sales department In the rower right -hand corner of p 1, the statement
shows number of new units sold per month and profit or loss per month, but
the latter figure refers to overall operations ( including the parts and service
departments ), and not merely to new - and used -car sales This can be
verified by noting that the net profit for May ($827 84) is shown there and
again at the bottom of p 2, where it is derived from the "operating profit,"
which is computed in the next column by adding the profit or loss of all de-
partments and subtracting all expenses of the business Hence the "losses"
to which Cavileer testified as having occurred in January and February may
reflect losses in the service or parts departments
6 Assuming arguendo that the layoff was not discriminatory , the failure to
recall Ellism when a job became available after May 19 violated the Act, as
I find it attributable to his union activity and not to a mere "oversight "
CAVALIER OLDS, INC.
have overlooked his transgressions or at the least
would have given him some warnings and would
have sought his version of the telephone operator
episode. But when the Company fired Paul, it re-
called Michael Pace, whose union activity was at
least as great as Paul's and as well known to the
Company. I cannot therefore conclude that the
Company's motivation in discharging Paul was to
rid itself of a union adherent, for it replaced him
with another, as it well knew. The complaint as to
Paul should therefore be dismissed.
D. The "Constructive Discharge" of James and
Michael Pace
The Pace brothers both "quit " on May 19. The
question is whether the Company , in reprisal for
union and strike activity , made working conditions
so disagreeable as to force them to quit, thereby
"constructively" discharging them in violation of
Section 8 ( a)(3) and ( 1) of the Act. See N . L.R.B. v.
Tennessee Packers , Inc., 339 F .2d 203 (C.A. 6).
1. The deterioration in conditions of employment
As noted above the Company resented the fact
that the employees had gone on strike, and indeed
had filed a lawsuit against some of them for so do-
ing. One week after the strike ended, the salesmen
(at that time James Pace and Paul) suffered a sub-
stantial wage cut. A few weeks prior to the strike
the Company, in an effort to adjust to the Fair
Labor Standards Act newly applicable to automo-
bile dealers, had instituted a weekly salary of $50,
and as part of the adjustment had reduced the
bonus paid for selling cars. For example, prior to
the change, a salesman received a bonus of $300
for selling 17 cars and after the salary plan was ef-
fective he received only $150 bonus for that many
sales. One week after the strike ended, the $50 sa-
lary was eliminated but (according to the Com-
pany), the lower bonuses were left in effect. Ac-
cording to the employee witnesses, all bonuses were
eliminated, but even if the Company's witnesses are
credited, the employees sustained a substantial loss
of pay.
Also undisputed is the fact that the salesmen,
who prior to the strike were given new Oldsmobiles
to drive as "demonstrators," were required after
the strike to drive seccond-hand cars of inferior
quality. This, along with the salary cut, ranked
among the major grievances of the poststrike situa-
tion. Of lesser importance to the employees, but an-
noying, was the poststrike requirement that they
punch a timeclock rather than merely record their
hours on a sheet of paper as they had done before
the strike.
' Both James and Michael Pace so quoted Sales Manager Upton who,
called as a witness , did not recall having said that , and remembered that he
"was very careful as to what [he ] said to them " In other respects Upton
was quite ready categorically to admit or to deny statements attributed to
811
The salesmen testified that after the strike the
Company no longer routinely referred to the
salesmen on the floor telephone calls from potential
customers, but instead routed such calls to the sales
manager or the general manager , thereby decreas-
ing the salesmen 's chances for making sales, and
earning the accompanying commissions . The wit-
nesses called by the Company disagreed among
themselves as to whether the system was changed
after the strike, but both the general manager and
the sales manager testified that the change was in-
stituted, although not immediately after the strike.
Both before and after the strike the Company
required the salesmen to spend some time soliciting
business by making telephone calls. On May 18,
however, the last day the Paces worked, the Com-
pany directed them to make telephone calls all day
long, alternating between them at 1-hour intervals,
so that each would spend 1 hour telephoning, the
next hour on the sales floor, and then back to the
telephone, etc.
After the strike the sales manager repeatedly
read a list of rules to the two salesmen , a practice
he had not theretofore followed. He and the
general manager frequently referred to the
salesmen as "Black Muslims" or "Malcolm X" or
"hod carriers," the last of which apparently
referred to the efforts of the Union to affiliate with
the Hod Carriers International. The supervisors in
question on several occasions asked the salesmen
why they did not quit. On or about May 15 when
the Pace brothers asked the sales manager when
the salary program would be straightened out and
when the "abuse and harassment and so forth"
would end, the sales manager replied: "I didn't tell
you to go on strike. "7
2. The Company's explanation of the changed
conditions; concluding findings
The Company's answer to the employees' two
principal complaints (the loss of salary without
restoration of the old bonuses and the loss of their
new demonstrators) is that these changes were dic-
tated by business considerations unrelated to the
strike or the Union. With respect to the demonstra-
tors, the Company introduced in evidence a letter it
had received from its finance corporation which
noted that the Company had "an excessive amounts
of units with mileage on them" and asking it "to
curtail the excessive usage of these new units." In
the light of this evidence I cannot find that the
failure to give the employees their former "demon-
strators" after the strike must be attributed to their
union or strike activity, although it must be noted
that by reducing the sales force from six to two the
Company necessarily made a substantial curtail-
him I derived the impression that Upton 's alleged "failure to recall" was
conscious equivocation on his part , and I credit the Paces' testimony in this
regard
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment in the "usage of these new units" which might
well have satisfied its obligations in this regard. The
assertion that economic conditions necessitated the
salary cut , however , is without any evidentiary sup-
port . The salary plan itself was merely an experi-
ment , vigorously opposed throughout by Sales
Manager Upton , and its abandonment would not
necessarily have been an act of reprisal had the
Company restored the presalary arrangement with
its more generous bonuses . But the action taken by
the Company was an outright and deep slash at the
employees ' earnings , explicable only as an act of
retaliation for their union or strike activity. Any
doubts as to this matter were removed by the sales
manager 's comment when the employees inquired
into the matter : " I didn 't tell you to go on strike."
The company witnesses who admitted that after
the strike general telephone inquiries were not
routed to the sales floor for handling by the
salesmen explained that this change was neces-
sitated by the change in attitude among the
salesmen themselves . After the strike , so the com-
pany witnesses testified , the salesmen were surly
and did not make proper efforts to sell cars. The
Company contends that this same uncooperative at-
titude , extending to rudeness and even to more of-
fensive conduct toward the supervisory hierarchy
and office personnel, led to much of the name
calling, bickering , and general " abuse and harass-
ment" of which the employees complained . For ex-
ample , the supervisors , who said to the salesmen
"Why don 't you quit, " testified that their comments
were made only after the salesmen taunted them
with open disrespect , refusal to follow instructions,
and lewd gestures , repeatedly saying , " If you don't
like it , fire me ." At one time the sales manager
complained to the company president , "Who is
getting harassed?"
This aspect of the matter is extremely difficult to
evaluate. Whether the Company made working
conditions more difficult because of the salesmen's
attitude , or whether the attitude worsened because
of the deterioration of conditions , is a conundrum
somewhat similar to the seniority dispute between
chicken and egg . Cf. St . Louis Typographical Union,
No. 8, 149 NLRB 750, 753 , footnote 9. Undoubt-
edly the open resentment displayed by each group
fed the maltreatment it received from the other.
Nevertheless certain facts do suggest that the Com-
pany took the offensive in reprisal for the union
and strike activities which irritated the company
hierarchy . The Company started a suit for damages
against the salesmen , laid some of them off, and
reduced the salary or earning potential of those
remaining . This was hardly calculated to improve
the esprit de corps . Moreover , I find it difficult to
believe that the salesmen , consciously at least, were
striving to alienate customers and curtail sales, for
their sole source of income was their sales commis-
sion . ( The Company however , made sales through
supervisory personnel and there is some suggestion
in the record that the sales manager , in particular,
enjoyed a substantial increase in commissions dur-
ing this period .) And, at the risk of running a single
item into the ground , I must again note that it was
in part responsive to James Pace 's complaint about
"abuse and harassment and so forth ," that the sales
manager stated , " I didn 't tell you to go on strike."
This is not to say that the salesmen 's conduct was
above reproach , or that all the matters about which
they complained were intended as reprisals. The
poststrike requirement that they punch the
timeclock may well be explained by their failure,
before the strike , to keep accurate records of hours
worked . The abandonment of the prestrike practice
of letting them have access to information as to the
wholesale cost of cars may well be explained as
arising from a belief ( apparently well founded in El-
lisin 's case but not in that of James Pace) that a
salesman can be more effective if he does not let
that item influence his dealings with potential
customers .8 But on the whole , and on balance, I
find that working conditions and relationships sub-
stantially deteriorated after the strike , that to a sig-
nificant extent these changes were instituted as
reprisals against the salesmen for having struck, and
that they caused the Pace brothers to quit on May
19, so that their terminations should be viewed as
"constructive discharges " within the meaning of
Tennesse Packers , supra, and the cases there cited.9
E. Other Interference, Restraint , and Coercion
The complaints allege various acts of inter-
ference , restraint, and coercion by company offi-
cials and supervisors. For the most part , the issues
are factual in that the supervisor involved denies
making the statement attributed to him . In a sense,
the entire matter is cumulative as the discrimina-
tions found above are violative of Section 8(a)(3)
and (1) and carry in their wake a remedial order in-
terdicting any further interference , restraint, or
coercion . Moreover, in view of the manifest resent-
ment the Company harbored toward the Union and
the strike , resolution of the issues as to particular
unlawful statements is not necessary to establish the
antiunion animus underlying the violations already
found . Nevertheless , as the allegedly unlawful state-
'The Company explains the telephone call requirements likewise as
sound business I find it unnecessary to decide the point , but the require-
ment that the only two salesmen in the dealership spend alternate hours on
the telephone all day long is at least mildly suggestive of punishment rather
than sales promotion
9 Michael Pace returned to work of his own volition on May 9 (after
being unlawfully laid off on April 5), and was "constructively discharged"
10 days later It may be argued that he was, or should have been, aware of
the conditions prevailing when he voluntarily returned Apparently, how-
ever, his brother James had not fully apprised him, and in any event mat-
ters further detenorated between May 9 and 19, as witness the Pace
brothers ' conversation with Upton on May 15, frequently referred to
above Also, insofar as the Company argues in its bnef that the men
could have continued at work and filed unfair labor practice charges
alleging discriminatory treatment, this would be true in all "constructive
discharge" cases
CAVALIER
ments are put in issue , I deem it incumbent upon
me to make findings thereon.
The harassing tactics described above in which
company supervisors engaged, including the ridicul-
ing and name calling , constituted unlawful inter-
ference with the employees' right to engage in
union or concerted activity free of employer
reprisal. The sales manager's open implication that
the employees were suffering under deteriorating
conditions of employment because they had gone
on strike was likewise calculated to interfere with
the right to do so.
On the other hand, I find no violation in the
Company's taking the depositions of the employees
for use in the civil suit, and such interrogation as
there occurred into their union membership was
both privileged and innocuous, as they had all been
seen on the picket line. Also, I credit Company Pre-
sident Cavileer's denial that he threatened to close
his doors rather than deal with a union . I do find,
however, that General Manager Baitz asked Mike
Pace in mid-May whether Pace was going to attend
a union meeting , and that on April 29, the day after
the Board-conducted election, Sales Manager
Upton asked employee Paul how the latter had
voted.10 Under all the circumstances of this case
such interrogation into the employees' exercise of
their Section 7 rights amounted to employer inter-
ference therewith. The testimony as to Sales
Manager Upton's conversation with Mike Pace, in
which the supervisor referred to the possibility of
"open and leasing " as a means of dispensing with
salesmen altogether, is too unclear to permit a find-
ing that Upton on that occasion was threatening
reprisals against these employees.
CONCLUSIONS OF LAW
1. By laying off Daniel Ellisin and Michael Pace
on April 5, 1967, by constructively discharging
Michael and James Pace on May 19, 1967, and by
reducing salaries and otherwise imposing harsh
terms and conditions of employment because of the
employees' union and concerted activity, the Com-
pany engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
2. By telling employees that their conditions of
employment had deteriorated because they had en-
gaged in union or concerted activity, by subjecting
employees to personal invective and other harass-
ment because of such activity, and by interrogating
them as to whether they attended a union meeting
or voted for the Union in a Board-conducted elec-
tion, the Company engaged in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the
Act.
"The Union won the election , 2-0, but the ballots were not counted
until May 5 The Company challenged the validity of the election, and that
matter is now pending before the Board For reasons not disclosed on the
record (possibly because of the pendency of the representation case before
OLDS, INC. 813
THE REMEDY
I shall recommend that the Company be ordered
to cease and desist from its unfair labor practices,
and from in any other manner interfering with,
restraining, or coercing employees in the exercise
of their rights under Section 7 of the Act. Affirma-
tively I shall recommend that the Company offer to
reinstate James and Michael Pace, that it make
them and Daniel Ellisin whole in accordance with
the formulas approved in F. W. Woolworth Com-
pany, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716, and that it post appropriate
notices. The computation of backpay, which is left
to "subsequent compliance proceedings" (N.L.R.B.
v. Cambria Clay Products Co., 215 F 2d 48, 56
(C.A. 6)), may be fraught with some difficulties but
need not be explored here. Cf. Forest Dodge, Inc.,
145 NLRB 1463, 1473.
Accordingly, upon the foregoing findings and
conclusions, and upon the entire record in this
case, I recommend, pursuant to Section 10(c) of
the Act, issuance of the following:
ORDER
Respondent Cavalier Olds, Inc., its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating
against employees for having engaged in concerted
activity for mutual aid or protection , or for mem-
bership in, or support of, Professional Automobile
Salesmen Association.
(b) Telling employees that their working condi-
tions have suffered because of their union or con-
certed activity , interrogating employees as to their
attendance at union meetings or as to how they
voted in Board elections , or in any other manner in-
terfering with , restraining , or coercing employees in
the exercise of their rights under Section 7 of the
Act.
2. Take the following affirmative action necessa-
ry to effectuate the policies of the Act:
(a) Offer to reinstate James Pace and Michael
Pace to their former or substantially equivalent
positions , without prejudice to their seniority or
other rights and privileges , and make each of them
and Daniel Ellisin whole in the manner described in
the section of the Trial Examiner 's Decision enti-
tled "The Remedy " for any loss of earnings suf-
fered by reason of the discrimination against them.
(b) Notify James and Michael Pace if either or
both are serving in the Armed Forces of the United
States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service
Act and the Universal Military Training and Service
the Board, but cf Hill-Behan Lumber Company, 162 NLRB 745 (TXD, sec-
tion 111, A), the complaint does not allege a refusal to bargain , nor does
General Counsel seek a bargaining order as remedy for the violations al-
leged and found
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the
amount of backpay due under the terms of this
Decision.
(d) Post at its plant at Akron, Ohio, copies of
the attached notice marked "Appendix."" Copies
of such notice, on forms provided by the Regional
Director for Region 8, after being duly signed by an
authorized representative of the Respondent, shall
be posted immediately upon receipt thereof, and
shall be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Deci-
sion, what steps the Respondent has taken to
comply herewith.12
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL offer James Pace and Michael Pace
their former jobs and pay them and Daniel El-
lisin for wages they lost as a result of their
layoff or discharge in the spring of 1967.
WE WILL NOT discharge or threaten to
discharge or harass any employee because of
his membership in or support of Professional
Automobile Salesmen Association or for hav-
ing engaged in a strike or other concerted ac-
tivity.
WE WILL NOT tell employees that their work-
ing conditions have deteriorated because of
their having engaged in union or concerted ac-
tivity, or question them as to whether they at-
tended union meetings , or as to whether they
voted for a union , or in any other manner in-
terfere with their right to join or assist a union.
Dated By
" 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
` 2 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
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 Na-
CAVALIER OLDS, INC.
(Employer)
(Representative ) (Title)
Note: We will notify the above-named em-
ployees if presently serving in the Armed Forces of
the United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive 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, Federal Office Building, 1240 East 9th
Street, Cleveland, Ohio 44199, Telephone
522-3725.