Childress Buick

National Labor Relations Board - Board Decisions

Jun 7, 1984

270 N.L.R.B. 1091 (N.L.R.B. 1984)

CHILDRESS BUICK
Childress Buick and Transport and Delivery Drivers,
Warehousemen and Helpers Local Union 104,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 28-CA-6573
7 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 11 March 1983 Administrative Law Judge
William L. Schmidt issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief and cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,I and
conclusions 2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Childress
Buick, Phoenix, Arizona, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order.
t The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 In finding that employees Reynolds and Vitale were discharged in
violation of Sec. 8(aX3) and (I) of the Act, we do not rely on any failure
by the Respondent to claim that Reynolds and Vitale were not putting
forth their best efforts. We also do not find it necessary to rely on Stand-
ard Coosa-Thatcher Co., 85 NLRB 1358 (1949)., which the judge quoted in
fn. II of his decision, to find in agreement with the judge that Childress
coercively and unlawfully questioned Beian about her reasons for sup-
porting the Union.
Chairman Dotson would not find that the Respondent's president Chil-
dress unlawfully solicited employee grievances at the employee meeting
of 27 April 1981. The Chairman also would not find that the Respond-
ent's cancellation of its steak fry was violative of the Act.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge.
This matter was heard by me on April 13-16 and 20,
1982, at Phoenix, Arizona. The charge was filed by
Transport and Delivery Drivers, Warehousemen and
Helpers Local Union 104, International Brotherhood of
270 NLRB No. 169
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union) on July 29, 1981,' alleging that
Childress Buick (the Respondent) violated Section
8(aX1) and (3) of the National Labor Relations Act (the
Act). A complaint was issued by the Regional Director
for Region 28 of the National Labor Relations Board
(the Board) on September 4 alleging that the Respondent
violated Section 8(aXl) and (3) by various actions includ-
ing the discharge of two employees, Donald R. Reynolds
and Frank Vitale. The Respondent filed a timely answer
denying the commission of the alleged unfair labor prac-
tices.
On the entire record in this matter, my observation of
the witnesses as they testified at the hearing, and my
careful consideration of the posthearing briefs filed by
the General Counsel and the Respondent, I hereby make
the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent, an Arizona corporation, is engaged
in the retail sale of new and used autos at its Phoenix,
Arizona place of business. In the calendar year preceding
the issuance of the complaint, the Respondent derived
gross revenues in excess of $500,000 from its retail busi-
ness operations and purchased goods from suppliers
valued in excess of $50,000 which were shipped to it di-
rectly from locations outside the State of Arizona. The
Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act engaged in commerce or a business
affecting commerce within the meaning of Section 2(6)
and (7) of the Act. It would effectuate the purposes of
the Act for the Board to assert its jurisdiction over the
labor dispute involved here.
1. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is franchised as a Buick dealership in
Phoenix, Arizona, owned primarily by its president,
George Childress. The other principal managerial offi-
cials who were involved in this proceeding were James
Blue, vice president and general manager; Harvey Haw-
thorne, sales manager; Norman Mike Majercin, business
manager; Earl Grobstein, service department manager;
and Jan Larimer, used-car manager.
The Respondent's letterhead describes the auto dealer-
ship as "the friendliest place in town" and among the
automobile salesmen involved here, Childress Buick was
known to be a low-keyed place to work. Some compared
the work atmosphere to that of a country club. Several
of the Respondent's managerial personnel who testified
took pride in the Respondent's reputation and there are
Unless specified otherwise, all dates hereafter refer to the 1981 calen-
dar year.
1091
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several indications that the Union's organizing drive
served to abruptly change the atmosphere. However, to
the extent that the Respondent's management was of-
fended by that action on the part of its sales employees,
the employees were equally offended by what they per-
ceived as the precipitous announcement by Hawthorne at
a late March sales meeting that the Respondent was em-
barking on a new compensation plan for the sales em-
ployees. 2 The employees protested at the time and Haw-
thorne said the matter would be reconsidered and that he
would let them know later what was decided. At a later
sales meeting in April, Hawthorne informed the employ-
ees that the compensation plan had been reconsidered
and that it had been placed into effect effective April 1.
The sales staff reacted swiftly. Contact was made with
the Union, a brief organizing drive was set in motion,
and the Union sought an election. As will be discussed in
greater detail below, the Union was selected to represent
the Respondent's sales personnel but no evidence was
proffered at the hearing about the progress of collective
bargaining mandated by the Act.
The General Counsel argues that the Respondent un-
dertook to thwart the Union's organizing drive by vari-
ous unlawful actions including a variety of threats, coer-
cive interrogations, efforts to convey the notion that em-
ployee union activities were being closely watched, dis-
charges, rescinding management actions which motivated
the employees to seek union representation, and other ac-
tions of a retaliatory nature. The Respondent claims that
it is innocent of the charges leveled against it by the
General Counsel.
B. Chronology of Relevant Events and Findings
Concerning the Independent 8(a)(1) Allegations
As spring 1981 approached, life at Childress Buick
seemed fairly normal. Leon Cooper had been assigned
the task of making the arrangements for the semiannual
steak-fry. By late March, Cooper had reserved a covered
space for this event at Phoenix's Squaw Peak on May 30.
However, there were storm clouds. At a sales meeting
in March, Sales Manager Hawthorne had announced that
a new pay plan and a new-used car warranty plan were
under consideration. After Hawthorne had detailed the
respective plans to those present, several of the sales per-
sons personalized the new plans by computing its effect
on their pay. Most did not like the result. Hawthorne
agreed to reconsider the matter after hearing several pro-
tests. At a later sales meeting in April, Hawthorne an-
nounced that the proposed compensation plan had been
placed in effect as of April 1. This news caused the Re-
spondent's salespersons to react favorably to the sugges-
tion that they unionize and efforts in this direction mate-
rialized rapidly. On April 22, all of the Respondent's
sales folks signed authorization cards for the Union to
represent them. The following day, April 23, the Union
petitioned the Board's Regional Office in Phoenix for a
representation election in which it intended to demon-
strate its majority standing under the Act. Apparently
2 The sales meeting referred to here and at other places in this decision
refers to the regularly scheduled meetings held twice weekly involving
the sales staff.
the first that the Respondent's management learned of
the unionization effort occurred when a copy of the
Union's election petition was received from the Regional
Office on April 24.
The first sales meeting after Childress received the
election petition was held on April 27. There is uniform
agreement among the witnesses that George Childress
made one of his infrequent appearances at this meeting
and addressed the gathering. Nearly all witnesses agreed
that Childress was visibly upset and he conveyed the
depth of his disturbance at the very outset of his talk to
the assembled group by telling them that the only thing
which would have shocked him more would have been
papers advising him that his wife was seeking a divorce.
Childress reminded the employees that the dealership
had a reputation as the friendliest place in town to work,
that it had always been a country club, that now things
were going to change, and that from hereon there would
be no special favors. Childress continued. He reminded
Bob Peterson that the dealership stood behind him even
after it was discovered that he was hiding used-car trade-
ins. Childress, most of the witnesses agreed, referred to
Peterson's conduct in this regard as being equivalent to
that of a "thief."8 Childress also reminded salesman Dick
Bender that the dealership had "stuck by him" even
though he was once a "drunk" and later when he had
had a heart bypass operation. In neither instance, Chil-
dress reminded the group, had the employee been termi-
nated. Childress then stated that the dealership had taken
Norma Beian "off the street" and made her into a com-
petent salesperson. Childress then observed that "this"
(apparently meaning the Union's petition) was the
"thanks" he got. Childress remarked that his door had
always been open and he asked the employees what their
problems were-whether it was with the management,
the pay plan, or what. No one responded. Next, Chil-
dress told the employees that the Union only could
obtain for them things he would be willing to agree to
and that although he would bargain in good faith, he
would agree to nothing and that he would never sign a
contract.4 After Childress had finished addressing the
group and had left the room, Hawthorne addressed the
group and asked why the employees had not come to
him if they had a problem. When Hawthorne had fin-
ished, Frank Vitale asked Hawthorne why everyone was
so shocked because the salesmen wanted to organize
since, as he had observed in talking with Keith Leathers
(a colleague) a few days before, almost all of the work
3 Peterson's conduct deprived other sales personnel of the opportunity
to sell the trade-ins and reap any resultant commissions.
I The only serious credibility issue which arose concerning this meet-
ing involved whether or not Childress asserted that he would not sign a
contract. Several of the General Counsel's witnesses so testified. Chil-
dress denied that he made the remark. Several witnesses called by the
Respondent were not questioned in an effort to corroborate Childress'
denial in this regard even though they testified about other aspects of the
April 27 meeting. As several of the employee witnesses who are still em-
ployed at the Respondent's dealership testified that Childress made such a
remark and as the tenor of Childress' other remarks are reflective of a
deep personal animosity toward unions in general, I am persuaded that
such a remark would not be out of character. Accordingly, I find that
Childress did state that he would never sign an agreement at this meet-
1092
CHILDRESS BUICK
performed on an automobile before it arrived at the
showroom floor was done by unionized personnel. Ac-
cording to Vitale, Hawthorne appeared quite upset by
his unsolicited remarks.
On the basis of the foregoing, I find that Childress' re-
marks at the April 27 meeting were tantamount to
threatening retaliation against employees, that he solicit-
ed grievances, and that he sought to convey to employ-
ees the futility of collective bargaining. In so doing Chil-
dress violated Section 8(a)(l) of the Act. I further find
that Childress' remarks coupled with his admitted de-
meanor disclose that he harbors a deep personal hostility
toward unions. This latter finding is highly pertinent to
the question of the Respondent's motive discussed later.
Shortly after the April 27 sales meeting Norma Beian,
one of the new-car salespersons, went to Hawthorne's
office. Apparently Hawthorne was not present at the
time but Majercin was in Hawthorne's office and at this
time Majercin asked to speak with Beian. When Beian
agreed, Majercin began by saying that he had just
learned of the organizing drive by the sales staff. Majer-
cin asked Beian why she would want to go to the Union
instead of approaching Childress with any complaints
which she had. After Beian responded, Majercin pressed
on saying that the employee problems could be handled
without a union. Majercin suggested that two of the em-
ployees go to Childress concerning various matters such
as the new pay plan and a scheme to rate the Respond-
ent's managers. In addition, Majercin told Beian that
Childress would never sign a union contract, that he
would rather sell the place first. For his part, Majercin
(who testified that he was "really hurt" by the organiz-
ing effort) acknowledged speaking with Beian about this
time because he was "trying to find out why they did
not go to Mr. Childress direct on their problems . . . the
point [being] if we can go into Mr. Childress maybe we
can get everything settled." Majercin claims that he
asked Beian if she were the union steward because-in
effect-he was attempting to find out if she would be the
person to represent the employees. I have credited
Beian's recollection and recitation of what transpired in
this conversation over that of Majercin. Certain of Ma-
jercin's assertions are simply too self-contradictory to
merit belief. For example, Majercin's testimony that he
was "deeply hurt" by the organizing effort makes it
highly unlikely that his inquiry as to whether or not
Beian was the union steward was for an innocent pur-
pose of generating a problem-solving discussion. As I
have credited Beian's version of this conversation, I find
in agreement with the General Counsel that Majercin
violated Section 8(aX1) of the Act by his effort to solicit
employee grievances with the implicit promise that they
would be resolved 5 and by his remark that Childress
would rather sell the dealership than sign a union agree-
ment.
On May I Reynolds and Vitale were called separately
to Hawthorne's office and were warned about their pro-
duction. Reynolds testified that when he was called to
Hawthorne's office, Hawthorne closed the door and initi-
ated the conversation by saying that Childress knew
a Uarca Inc.. 216 NLRB I (1974).
nothing of the pay plan before it was implemented as the
pay plan was his "baby," he had implemented it, and no
one else had anything to do with it including Childress
who did not know anything about the pay plan until a
couple of days before that time. According to Reynolds,
the two men sat across from one another for a few mo-
ments and then Hawthorne asked Reynolds if he thought
Hawthorne was afraid of him. Reynolds replied no and
asked Hawthorne the same question and received the
same response. Hawthorne then told Reynolds that he
had 30 days to get his production up. Additionally, Haw-
thorne gave Reynolds a "house deal" and the conversa-
tion ended.6
Vitale claimed that he learned that he was being put
on probation when he went to Hawthorne's office to log
a sale. At this time Vitale said that Hawthorne laughed
and remarked that the particular sale might help get him
off probation. Vitale remarked that he did not know
what Hawthorne was talking about and Hawthorne did
not bother to respond. By contrast, Hawthorne testified
that he had had two previous conversations with Vitale
in January and February about Vitale's lack of produc-
tion; during those conversations Vitale told Hawthorne
that Vitale did not like his sales figures anymore than
Hawthorne did and that he was trying to bring them up.
According to Hawthorne, on May 1 he called Vitale to
his office again and told him that he had to have some
improvement in his sales in 30 days or he would termi-
nate him. Vitale was also given a house deal to start off
on the right foot during his probationary period.
Apparently sensing that the source of the unrest
among the salesmen was the new pay plan and the war-
ranty plan change, the changes which had been put into
effect on April I were rescinded in the early part of
May. Blue testified that at a sales meeting on May 4 he
announced that the dealership was going to rescind the
changes. Blue's explanation for this action was as fol-
lows:
Well that we felt that after the month that we'd
had, we'd waited to see exactly how the salesmen
came out as far as their commissions were con-
cerned and felt that the pay plan had not worked
out as we had thought that it would, ·nd that we
were returning to our old pay plan that we'd used
previous to this new one.
As to the warranty plan Blue explained:
Well, I think I stated in the meeting that the used
car salesmen primarily were not happy with that
program. They felt that it was costing them money
rather than making the car easier to sell. And be-
cause of that we would revert back to the previous
method we had as we were doing with the new car
commission plan.
' A "house deal" is a sale arranged with the management. In effect,
Hawthorne was crediting Reynolds with the sale. The General Counsel
alleged that the Respondent discriminatorily discontinued allocating
house deals. That allegation is treated in sec. B. below.
1093
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After initially denying that it was his view that the em-
ployee unionization efforts resulted primarily from the
change in pay plan, Blue eventually acknowledged that
so far as he knew the only reason the employees sought
union representation was because of the pay plan and
that the conclusion was reached to rescind the April
changes in the pay plan after consulting with the dealer-
ship's labor counsel.
Childress, Hawthorne, and Blue all testified that Chil-
dress put in an appearance at the April 23 sales meeting
and told the employees, in effect, that if the plan was un-
satisfactory after a month the Respondent would "do
something about it" (Blue); or "would go back to the old
pay plan" (Hawthorne); or would "discuss it" (Chil-
dress). The Respondent called Peterson, Goorhouse, and
Fleitz (who were on the Respondent's sales staff at the
time) to support the testimony of its managers. All of the
latter individuals testified that Childress stated, in effect,
at the April 23 meeting that he had learned of some
union activity in the Phoenix area and of some dissension
among his own sales staff. They testified that Childress
stated that he would be "willing to take a close look at
the commission structure" (Peterson); or would "look
[the pay plan] over between now and the end of the
month, and . . . change it back if you're not satisfied"
(Goorhouse); or "if [the pay plan] didn't work, the 1st of
May it would be canceled out" (Fleitz). The day follow-
ing the April 23 sales meeting, the Respondent was
served with a copy of the Union's petition for an elec-
tion.
The foregoing evidence demonstrates that the Re-
spondent was motivated to reconsider its recent changes
in its compensation plans because it had learned of the
union activity among nearby auto dealerships and that it
undertook to reinstitute the old compensation plan after
it learned specifically of the organizing campaign under-
way among its own sales force. As the Respondent im-
plemented the new compensation plans over the strong
objections of its sales employees only a short time earlier
and expressed a willingness to reconsider the changes it
had made only after it learned of nearby activity by the
Union, it is reasonable to infer, as I have, that the Re-
spondent rescinded the changes made in its pay structure
in order to appease its employees and discourage them
from continuing their support of the Union. According-
ly, I find in agreement with the General Counsel's alle-
gation that the Respondent's announcement that it was
rescinding the changes made in its compensation plans
violated Section 8(a)(1) of the Act. Don Moe Motors, 237
NLRB 425 (1978). Accord: NLRB v. Anchorage Times
Publishing Co., 637 F.2d 1359, 1367 (9th Cir. 1981).
In addition, in this same period of time the spring
steak-fry was canceled.7 Hawthorne testified as follows
about this matter:
Q. Let me just review the complaint here one
minute. Did you have anything to do with the can-
celing of the steak fry?
Vitale was the only witness who attempted to place the timing of the
steak-fry cancellation. He testified that it was canceled "[a]fter we had
signed the petitions for the Union, shortly thereafter ... I don't recall if
it was in the meeting room or on the floor."
A. I think that was a mutual agreement amongst
everyone. It didn't seem like it was the right time to
go out and have a party when there was so much
animosity going on and tension in the whole store,
why I don't think I'd want to go out and sit in-
having dinner and a few drinks when the atmos-
phere was as it was at that time.
Q. What was that, contentious and divided?
A. Yes.
Q. And kind of heated arguments and things?
A. Yes.
Q. Brought about by the Union campaign, right?
A. Yes.
Q. Mean the atmosphere was brought upon by
the Union campaign?
A. Yes.
None of the other witnesses who testified about the
matter confirmed that the cancellation occurred by
"mutual" consent and it is my conclusion that Haw-
thorne's choice of wqrds was only a euphemism designed
to avoid stating the obvious, namely, that the steak-fry
cancellation decision was made unilaterally by the Chil-
dress management.
In apparent accord with Childress' warning at the
April 27 sales meeting to the effect that the dealership
operation was going to be tightened, there is evidence
that at a sales meeting in early May, a copy of the exist-
ing policies and procedures originally distributed in Oc-
tober 1980 was again distributed and Childress informed
the sales personnel to become familiar with and adhere
to those rules. Theretofore strict compliance with the
October 1980 rules and regulations was neither achieved
nor expected.8
Throughout May the Respondent was campaigning
against the Union in anticipation of the NLRB election
which was set for June 3. Three of the Respondent's
campaign documents are in evidence. In them, the Re-
spondent advised employees:" (1) that no one could be
fired because of the way they vote; (2) what "checkoff"
meant; (3) that employees could not deal with Childress
or Blue about the pay plan or other working conditions
if the Union won; (4) that the Union had no collective-
bargaining agreement for any auto sales personnel in the
Phoenix area; (5) that PROD was a group of Teamsters
rank-and-file members trying (albeit unsuccessfully) to
get rid of the Mafia influence in the Teamsters Union; (6)
that employees can be replaced for going on strike; (7)
that employees did not have to (and the Respondent
hoped they would not) vote for the Union simply be-
' This finding is based on Norma Beian's testimony. Although the sce-
nario depicted by Beian was not contradicted by the Respondent's wit-
nesses, it was not fully corroborated by other witnesses of the General
Counsel. Thus, Vitale testified that Majercin put copies of the rules on
their desks. Reynolds' testimony on this subject was that he overheard
Majercin's warning to two other salesmen to strictly adhere to the rules.
Nevertheless, the Respondent's brief states, "Childress Buick decided for
sake of boosting sales, that both management and employees would abide
by rules and regulations in effect since 1980."
9 The Respondent's campaign literature was not alleged to be unlawful
but it is, nevertheless, relevant to the question of motive. NLRB v. LowIll
Sun Publishing Co., 320 F.2d 835, 839-840 (Ist Cir. 1963).
1094
CHILDRESS BUICK
cause they signed a union authorization card; (8) that a
"yes" vote was not a pay raise guarantee; (9) that the
Respondent would bargain "tough" if the Union won the
election-the law did not require the Respondent to
make concessions or to agree to all union demands; (10)
that strikes can vary in length from a few hours to years
and that in the event of a strike the employees would not
be eligible for unemployment compensation and could be
replaced; (11) that the Respondent would not close be-
cause of the Union; (12) that bargaining could last a long
time depending on how tough each side bargained; (13)
that the Respondent did not have to sign an agreement
which it did not believe was in its own best interest; (14)
that employees could end up with more or less than
what they presently had as a result of the bargaining
process because the bargaining process involved both
give and take; (15) that strikes were used by unions to
compel agreement with their demands and one local
strike had lasted for over 3 years; (16) that employees
were not paid for striking and were not eligible for un-
employment compensation; (17) that the Respondent had
the right to (and intended to) operate during any strike
using permanent replacements; (18) that it apologized to
employees for the "breakdown in communications"; and
(19) that management had learned many lessons as a
result of the Union's campaign, a "therapeutic experi-
ence."
During the month of May, Vitale sold five new auto-
mobiles. This record was the lowest for any salesperson
for that month. On June 1, Vitale was informed by Haw-
thorne that he was being terminated for his low produc-
tion. Shortly after learning of his termination, Vitale
went to Childress' office and told Childress that he had
enjoyed working for the dealership; that he desired to
continue working there; and that he would not take his
termination lying down. Childress did not respond to Vi-
tale's pique; instead, he engaged Vitale in small talk
about his future plans. Later in the day, Vitale went to
Blue's office after observing Blue and Childress talking
together there. At this time, Vitale told Blue that he did
not think the timing of his termination could have been
worse coming as it did 2 days before the election. This
action, Vitale speculated, would sway the way the others
voted. Blue responded that it would not make any differ-
ence as the salespersons had already made up their minds
about voting. The Respondent did not explain Vitale's
discharge to the sales force.
The following day, June 2, Reynolds was ushered to
Childress' office by Hawthorne. At this time, Childress
told Reynolds, "Don, normally when people aren't
happy at Childress Buick, we allow them to look for a
job elsewhere." When Reynolds responded that he was,
in fact, happy at the dealership, Childress replied that he
did not act like it and that he had 15 days to get his pro-
duction up or he would be better off looking for a job
elsewhere. During the month of May, Reynolds had re-
ceived credit for the sale of seven new automobiles.
Reynolds' credited sales for May were equal to or great-
er than those for salespersons Collins, Goorhouse, Gun-
salus, Jonovich, Leathers, Nixon, and Vitale. Those indi-
viduals together with Reynolds represent practically half
of the Respondent's new- and used-car sales force. The
Respondent's sales and salary reports for the month of
April likewise indicate that there were several other of
the Respondent's salesmen at or below Reynolds' pro-
duction record.10 Other than Vitale who was placed on
probation and then discharged, and Reynolds, who was
placed on probation and warned by Childress, there is no
evidence that any of the other salespersons were warned
or placed on probation as a result of their production
records for the months of April or May.
The election was held on June 3. The tally of ballots
disclosed that nine votes were cast for the Union and
seven votes were cast against the Union. Respondent
filed objections which were subsequently overruled. The
Union was certified on September 18, 1981.
The day after the election (June 4), the Respondent
held one of its regular sales meetings. After Childress fin-
ished addressing the group and another individual was
preparing to talk to the assembled salespersons, Childress
walked over to an empty seat between Reynolds and
Jonovich to sit down. At this time Childress remarked
(in a jocular manner according to Childress), "I'll just sit
here between these two union men." Although the
remark indicates that Childress identified or associated
those two individuals with the Union's organizing drive,
the General Counsel goes further by alleging that the
remark put employees on notice that the union activities
were being kept under close surveillance in violation of
Section 8(aXl) of the Act. The plain meaning of the
word surveillance connotes that one's activities are being
closely watched, a label which is clearly inappropriate
for the circumstance occurring here. Absent the General
Counsel's ability to classify Childress' remark in the "im-
pression of surveillance" category, the remark by Chil-
dress has no coercive quality. A particular type of con-
duct is not unlawful because of the General Counsel's in-
genuity (or lack thereof) in attaching a label to it. Ac-
cordingly, I shall recommend that, to the extent that
complaint paragraph 14(p) alleges that Childress' remark
on this occasion was unlawful, it should be dismissed.
In the following 2 months there were other conversa-
tions between acknowledged supervisors and sales em-
ployees which have been alleged as unlawful acts of in-
terference, restraint, or coercion. The first of these alle-
gations concerns a conversation between Childress and
Beian in Childress' office which, according to Beian, oc-
curred about a week after the election. Beian testified
that she went to Childress' office on this occasion to
voice her view that the management had adopted an un-
cooperative and distant attitude which was lowering the
sales morale and affecting the automobile sales. Beian
said that Childress observed that the sales force had
"asked for it" and that things were going to be more
formal. Childress asked why Beian voted for the Union
and she replied that she wanted the Union for income
protection and job security. Childress responded that the
Union could only obtain for employees those benefits
that he decided to give; that the Union would probably
sign a contract right now for what the employees al-
'o See Appendix A for a summary of the individual sales and earnings
records.
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ready had if he was willing to do so: that he was not
going to let an "outsider" tell him how to run his busi-
ness; and that he intended to spend all the money neces-
sary to keep the Union out. Childress acknowledged that
this conversation occurred and his version differed only
slightly from the version by Beian which I have cred-
ited. Thus, Childress testified that, in response to Beian's
complaint that management was being unfriendly and un-
cooperative, he told her that the employees had made
the decision to get outside help and, as a consequence,
management was going to toughen up. Both management
and employees, Childress said, were going to have to
live up to the published rules from that point forward.
On the basis of this conversation, the General Counsel
seeks a finding that the Respondent violated Section
8(aX)() of the Act by interrogating Beian and by making
threats of more onerous working conditions. The Gener-
al Counsel's position is well taken. I find that Childress'
remarks at this time violated Section 8(a)(l) of the Act as
alleged by the General Counsel. I
About a week after the election Keith Leathers was
walking through the service department when Grobstein
approached him and stated: "Now if we can get rid of
Norma and Reynolds, we'll have the Union thing
whipped." Leathers said that Grobstein made a similar
remark to him a week or two later. Grobstein denied
making such a remark. Instead he attributed a similar
remark to Reynolds, who credibly denied having made
any such remark.' 2 The General Counsel contends that
Grobstein's remark is tantamount to an unlawful threat
to terminate the union supporters. I agree. Grobstein's
message clearly conveys the views of a supervisor that
the Respondent might consider using the discharge
device in order to disrupt the employees' union activities.
Such remarks are clearly coercive and would have the
effect of restraining an employee. Accordingly, I find
Grobstein's remarks to Leathers on these occasions vio-
lated Section 8(a)(1) of the Act.
On June 10, Reynolds approached Leathers and Gun-
salus on the showroom floor at a particular time when
Grobstein was speaking to the latter two individuals. As
Reynolds approached the assembled group, he overheard
Grobstein say that Childress would never sign a con-
tract-that he would close the door and turn the key.
Gunsalus supported Reynolds' testimony saying that it
was his recollection that Grobstein said that if the Union
got in Childress would probably close the door. Grob-
"i Long ago the Board noted in Standard Coosa-Thatcher Co., 85
NLRB 1358 (1949), that an employer's curiosity concerning an employ-
ee's union activity rarely lacks purpose. There the Board observed (at
1362):
Our experience demonstrates that the fear of subsequent discrimina-
tion which interrogation instills in the minds of employees is reasona-
ble and well-founded. The cases in which interrogated employees
have been discharged or otherwise discriminated against on the basis
of information obtained through interrogation are numerous. These
cases demonstrate conclusively that, by and large, employers who
engage in this practice are not motivated by idle curiosity, but rather
by a desire to rid themselves of union adherents.
" Reynolds' denial is credited because it is consistent with the total
circumstances showing that he remained a prounion employee until his
termination. Hence it is inconceivable that he would talk about his own
termination so that the Respondent would have the union matter, in
effect, "whipped."
stein asserted that he told the employees that it was "his
opinion" that if the place ever went union Childress
would just close the business down. The General Coun-
sel asserts that, regardless of whether the remarks repre-
sented Grobstein's own opinion or not, they are clearly
attributable to the Respondent because of Grobstein's po-
sition as a supervisor and that they interfered with the
employees' Section 7 rights.18 I agree. On the basis of
the credited testimony of Reynolds and Gunsalus, it is
my conclusion that Grobstein's remarks on this occasion
violated Section 8(a)(1) of the Act as the statement about
closing is clearly coercive.
In or about mid-June, Hawthorne made a reference to
Reynolds about people not being cooperative and then
said, "Don, at least I know where you stand." Reynolds
responded with "That's true, Harvey." Hawthorne con-
tinued by saying that there were certain people who
were trying to play both ends against the middle and
Reynolds responded, "Yes, Harvey, and we know who,
don't we?" Hawthorne answered, "We sure do." The
General Counsel believes that this oblique conversation
was an intentional and unlawful effort on Hawthorne's
part to let Reynolds know that employee union activities
were being kept under surveillance. In support of his ar-
gument, the General Counsel points to Hawthorne's tes-
timony that he had no doubt in his mind but that Reyn-
olds was a union supporter. However, the evidence as
recited above is not sufficient to establish that Haw-
thorne's remarks even had any reference to employee
union activities. In these circumstances, it is my conclu-
sion that to the extent the General Counsel alleged the
foregoing conversation as a violation of Section 8(a)(l)
of the Act in paragraph 14(m) of the complaint, the evi-
dence proferred in support of that portion of the com-
plaint is too ambiguous to establish that Hawthorne was
attempting to create an inpression of surveillance. Ac-
cordingly, I will recommend that paragraph 14(m) be
dismissed.
Gunsalus resigned on June 15. When he left there was
a vacant office in the section situated along the show-
room floor. These offices were deemed more desirable
than the hallway offices which are off the showroom
floor. The showroom floor offices have traditionally
been made available to the more senior salespersons em-
ployed by the Respondent. At the time that Gunsalus
left, Leathers was next in line for a showroom floor
office. However, Hawthorne assigned the Gunsalus'
office to a new salesman named Smith who had only
worked for the dealership for about a week. A day or
two after the office assignment was made, Leathers went
to Hawthorne and complained bitterly about not being
given the Gunsalus' office. Hawthorne told Leathers that
because of the union matter he was not going to do any-
body any favors anymore. Nonetheless, Leathers was as-
signed to the office the following day and Hawthorne
denied having made the statement attributed to him by
Leathers to the effect that he was not going to do any-
body anymore favors because of the Union. According
is The General Counsel relies on Valley Iron & Steel Co., 224 NLRB
866, 874 (1976), for the proposition that statements made by a supervisor
are presumptively imputable to the supervisor's employer.
1096
CHILDRESS BUICK
to Hawthorne, he could not have made such a statement
because he did not know how Leathers had voted. Other
testimony by Hawthorne leads me to conclude that his
denial is not worthy of credit. Thus, Hawthorne admit-
ted that he gave the office to Leathers after talking to
Blue even though he does not normally consult with
Blue prior to making an office assignment. Moreover,
Hawthorne acknowledged that Blue and he had decided
that Hawthorne was being "kind of kiddish." Hawthorne
said that he had afterthoughts about not assigning the
office to Leathers because that action was a spur of the
moment type of thing. According to Hawthorne, his
"kiddish" action resulted from "the tensions, the atmos-
phere, in the store was pretty strong at the time, and you
know, that'd be how I'd have to discuss it." The atmos-
phere which Hawthorne was referring to was a result of
the organizing campaign.14 On the basis of the foregoing
evidence, I find that Hawthorne's advice to Leathers
that he was not going to do anyone any more favors be-
cause of the Union in the context shown here violated
Section 8(a)(l) of the Act, as alleged.
About 2 weeks after the election, Childress went to
the used-car department and spoke individually with the
salesmen in that department at the manager's office. Chil-
dress told used-car salesman Jonovich that he could not
understand why Jonovich was one of the individuals
who went along with the Union. While Jonovich was
present Childress looked over his sales record and ob-
served that he would not hire him if he had to at that
particular time because of his recent past performance.
Childress also noted that Jonovich had a record of jump-
ing from one dealership to the next. When Childress tes-
tified concerning this conversation with Jonovich, he
corroborated portions of Jonovich's testimony about the
matter and embellished on it. Thus, Childress testified
that he told Jonovich that he had jumped around among
different dealerships and had even been a sales manager.
Childress said he told Jonovich he could not understand
why he felt he needed a union when in the past he had
always talked directly to Childress if there was some
complaint. Childress said that he told Jonovich that he
had been the top used-car salesman for a number of
years but that his record over the past 6 months was
such that if he had to do so at the present time he would
not hire Jonovich. According to Childress, Jonovich
stated that he could not blame him for that. Childress
testified that he then chided Jonovich to stimulate his
business. Childress asked Jonovich what he really
wanted and what he felt the Union could do for him to
which Jonovich responded by saying that he did not
want to discuss that matter. Childress testified that he
had similar conversations with Collins and Coughlin, the
other used-car salesmen. The General Counsel asserts
that Childress' action amounted to an unlawful interroga-
tion of the used-car salesmen, a solicitation of their griev-
ances, and threats of adverse action, motivated by the
employees' union activities. I agree. Childress' admitted
statement that he asked Jonovich what he really wanted
and what he thought he could get from the Union is a
4 Although the election had taken place by this time, as noted above,
the Union was not certified until much later in September.
clear solicitation of Jonovich's grievances by means of
the interrogation device which had as its purpose an
effort to learn about Jonovich's union sympathies. The
fact that Childress felt it necessary to call Jonovich's re-
duced production to his attention in the course of the
same conversation leads to the clear inference that Chil-
dress' purpose was to convey the impression to Jonovich
that his job security was in jeopardy in circumstances
where it would be reasonable for Jonovich to infer that
the reason his job was jeopardized was because of his
desire to be represented by a union. Accordingly, I find
that as a result of the mid-June conversations with the
used-car salesmen Childress violated Section 8(a)(l) of
the Act by unlawfully interrogating employees about
their union sympathies, soliciting grievances, and con-
veying the impression that the employees' union activi-
ties had placed their jobs in jeopardy.
On June 25, Reynolds was scheduled to make a new-
car delivery to a customer named Cordovana. The cus-
tomer was due at the dealership at 7 p.m. in order to
take possession of his new automobile. The get-ready de-
partment made the car available to Reynolds at approxi-
mately 6:15 that evening and, in accord with the re-
quired practice at the dealership, Reynolds took the
automobile for a test drive to make sure that all systems
were working properly. In the course of the test drive,
Reynolds noted that the gas gauge was on the empty
mark. It was the custom of the dealership to deliver a
new automobile with approximately 10 gallons of gas in
it which would make the typical tank from one-fourth to
one-half full. Reynolds testified that there was a proce-
dure which he could have utilized in order to obtain gas-
oline for the automobile which required him to go to the
"gas board" in Hawthorne's office. According to Rey-
nolds, he felt there was insufficient time to follow this
procedure so he went directly to the used-car get-ready
manager Darrell Wubben, and asked Wubben to put
some gas in the car because he had to deliver the auto-
mobile to the customer at 7 p.m. Wubben put 4-5 gallons
of gas in the tank as he had done on several occasions in
the past. The following day Used-Car Manager Jan Lar-
imer approached Reynolds and stated, "What the hell
are you doing taking gas out of my tank?" Reynolds tes-
tified that he was shocked by Larimer's attitude in view
of the number of times in the past that the procedure
which he followed the previous evening had been uti-
lized by others. Larimer told Reynolds that he did not
want to see it happen again. According to Reynolds, a
few days later Leon Cooper, the assistant sales manager,
came to his office with a $4.63 back charge for the gas
which had been put in the Cordovana automobile. There
is no evidence that Wubben was reprimanded in any
fashion.
Hawthorne testified that he was on duty the evening
that Reynolds was to deliver the Cordovana automobile.
According to Hawthorne, Wubben came to him and in-
formed him that Reynolds was putting gas in the Cordo-
vana car. Hawthorne testified that he instructed Larimer
to talk to Reynolds about the matter. To the extent that
Hawthorne sought to imply that Wubben approached
him for the purpose of reporting some wrongdoing on
1097
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reynolds' part, Wubben failed to corroborate Haw-
thorne's assertion in his testimony. Instead, Wubben testi-
fied that he was the individual who pumped the gas after
Reynolds explained the situation. Wubben testified that
he had done the same thing in numerous prior instances
for others. There is no evidence that anyone was ever
reprimanded for such action before. On the basis of the
foregoing, I find that Larimer's oral reprimand of Reyn-
olds which was directed by Hawthorne was, as the Gen-
eral Counsel asserts, merely a form of harassment of
Reynolds because of his sympathies for the Union. This
conclusion is warranted on the basis of the evidence
which demonstrates that the procedure followed by
Reynolds had been followed on numerous other occa-
sions in the past without any reprimand, and on the fur-
ther basis that Wubben, the individual who actually
pumped the gas, was apparently not reprimanded at all. I
further find that, by back charging Reynolds for the cost
of the gasoline, the Respondent violated Section 8(a)(3)
of the Act, as this action was motivated by an effort to
harass Reynolds because of his union sympathies. My in-
ference concerning the Respondent's motive for this
action is grounded on the Respondent's other unlawful
conduct during this general period and Hawthorne's lack
of candor in explaining the basis for this action.
In the latter part of June, the Phoenix television sta-
tion affiliated with CBS carried a news segment on the
Union's effort to organize auto dealerships in the Phoe-
nix area. Some of the sales personnel from various deal-
erships and a representative of the Union were inter-
viewed in connection with the station's report. Among
those interviewed was Norma Beian from the Respond-
ent's dealership. The day after the interview was telecast,
Beian was called to Childress' office. Beian testified that
the following exchange took place at this time:
A. Okay. He called me in and said, "Do you re-
member those nice T.V. commercials we've made
of you? Well, you really blew it, didn't you, doing
that T.V. interview." He said, "Why do you want
to go-why do you want to rub our noses in it?"
He said, "I've had a lot of people ask me why the
employees want to go public with this. We have a
lot of Sun City people who won't buy from us if
they know that we're Union."
He asked me why I would go to the Union. Why I
would vote for the Union, and I told him that I felt
that the dealership was keeping me from a profes-
sion that I love because I was going to be forced to
leave under the circumstances, and I went to the
Union for job security.
Then he said, "This has always been a friendly
place to work. It's like a big family around here. It's
never been my policy to let people go for poor pro-
duction. I've always tried to work with them and
help them, but things are going to change now. It's
going to be more formal around here."
Childress, who had apparently seen the news report,
concluded that it was "not a very good program." His
version of the conversation with Beian the following day
was as follows:
So the next day I called her into the office and I
said Norma-in the meantime I'd had some tele-
phone calls by people saying well, we didn't know
that you had Union salesmen, and I says we do not
yet, but there in the process of bargaining, or get-
ting ready to bargain. I told Norma that I didn't
think that appearing on television, particularly with-
out us knowing about it was in our best interest nor
the company's best interest.
And I felt like, I said Norma, we've made a bunch
of TV spots for you in the past. As a matter of fact,
we've made some this year, 1982. But at that par-
ticular time I said we made these TV spots for you
showing what a wonderful place it is to work, and
you have fine customers. You get on there and say
that we don't particularly treat you right, that you
think you need the Union in this organization, I said
Norma, I think that's a slap in the face.
She says I have a right to my opinion. I says yes,
you do.
Q. Did she say that she was not ashamed of it?
A. Said she was not ashamed of it, and I says
well, I can't blame you, I wouldn't be ashamed of it
either, but I think it was poorly handled.
Q. At either one of those meetings, did you tell
Norma Beian that you would not fire anybody for
low production?
THE WITNESS: No. I told Norma that in the past
we'd related again some of the problems we'd had
with some of the people who had come back and
became good salesmen again. That low production,
not trying, not greeting the customers, not working,
not using the telephone, we just couldn't tolerate,
and we would let them go. By not doing those
things they would not sell cars, and that was the
reason they were let go.
Beian was convincing as she testified about the forego-
ing incident. For this reason and as her version accords
with other similar testimony (for example, Jonovich)
concerning Childress' conduct through this period, I find
her version to be the most reliable. The General Counsel
argues that Childress' remarks at this time involved an
unlawful interrogation of Beian and threatened more on-
erous conditions because of the remarks that the Re-
spondent would be less helpful and tolerant of salesper-
sons having productivity problems. The General Coun-
sel's contention is meritorious. Accordingly, I find that
the Respondent violated Section 8(aXl) of the Act by
Childress' remarks on this occasion.
On July 2, Beian went to Hawthorne's office to pick
up her paycheck. At that time Hawthorne closed the
door and engaged Beian in a conversation. First, he con-
gratulated her for being the top producer during the
month of June. Hawthorne then said he wished it had
been under "different circumstances." Next, Hawthorne
asked Beian why she would let Reynolds and Jonovich
pull her down to their level. Beian responded that no
1098
CHILDRESS BUICK
one was pulling her anywhere and that she had made up
her own mind to vote for the Union. Hawthorne then
confronted Beian with the rumor that she wanted him
fired. Beian strongly denied that assertion to Hawthorne
and the conversation was apparently dropped at that
point. I s
Beian said that same evening or the following evening
she confronted Majercin with the assertion that she
wanted to have Hawthorne fired because she believed
that Majercin was the source of this rumor. Majercin
denied Beian's claim but the conversation between them
continued with Majercin saying, "Obviously, it wouldn't
be a union supporter [who started the rumor] so let's
eliminate them." After making this remark Beian said
that Majercin proceeded to count the names of nine indi-
viduals on his fingers. The General Counsel claims that
this counting was done "so as to correspond with the 9
yes votes the Union had received at the June 3 election."
The General Counsel asserts that this is but one further
instance where the Respondent violated Section 8(a)(1)
of the Act by "giving the clear impression that, through
the channels of information known to the Respondent
alone, it had found out who had cast "yes" votes in spite
of the fact that it had been a secret ballot election." In
my judgment, the factual and legal inferences drawn by
the General Counsel from the context of this conversa-
tion between Beian and Majercin are so pedantic, pecu-
liar, and puzzling as to merit no further discussion. Suf-
fice it to say I shall recommend that complaint para-
graph 14(g)-which alleges that this conversation violat-
ed Section 8(aXl) of the Act-be dismissed.
On July 6, Hawthorne took Reynolds to Childress'
office where the three men met together. Childress asked
Reynolds "what the hell" was wrong with his produc-
tion. Reynolds asserted-without rebuttal of any kind
from either of the other two gentlemen-that he was
doing everything he could to get business and that in a
couple of weeks when Beian and Peterson were on vaca-
tion he had planned to fill in for them as he had done in
the past years in order to have an extra crack at obtain-
ing business. In fact, the records of Reynolds' production
in this period from past years show that it was normally
the most productive time of the year for him. Neverthe-
less, Hawthorne told Reynolds that he preferred to give
those hours to the new salesmen who had been hired in
June. Reynolds continued to explain his drop in produc-
tion by telling Childress that the floor traffic had been
slow and that he had some personal problems. Childress
responded by telling Reynolds that when employees "did
not enjoy working there" they were encouraged to find
other employment and that Reynolds should do just that.
Reynolds denied that he was unhappy and told Childress
that he did not want to look for other work-that he
" In her testimony about this conversation, Beian made a reference to
the fact that this conversation may have involved a discussion between
Hawthorne and herself concerning Reynolds' production and the fact
that several other individuals' production had dropped considerably from
what it had been the previous year. However, as Beian expressed some
uncertainty that this matter was discussed at this time and as the matter
was not later cleared up or broached in any fashion, I make no finding
with respect to any such conversation between Beian and Hawthorne
concerning production.
wanted to stay and do the best he could. Childress then
noted that the Respondent had given Reynolds 30 days
to improve his production and two 15-day extensions but
that he had not been successful in mustering any im-
provement in his sales record. Childress told Reynolds
that since he would not go voluntarily, Childress would
let him know by the end of the week as to whether or
not he was going to be let go from his job.
About 11 a.m. on July 10, Hawthorne walked into
Reynolds' office and informed him of the decision which
had been made to let him go. Reynolds asked for a writ-
ten termination slip and Hawthorne later provided a slip
of paper saying that Reynolds was being terminated for
lack of production. At this time Reynolds asked Haw-
thorne why neither he nor Childress asked about his per-
sonal problems in their meeting earlier that week. Haw-
thorne told Reynolds that he would be glad to listen but,
when Reynolds had spoken of personal problems in their
earlier conference, Hawthorne assumed Reynolds was re-
ferring to his union activities.
A couple of days after Reynolds' termination, Majer-
cin approached Beian and asked if she was now the
union steward. Majercin made a similar inquiry of Beian
in August after she returned from vacation. At that time
Majercin asked Beian if she knew who the union steward
was. The General Counsel alleges that these inquiries
were unlawful interrogation which violated Section
8(a)(1) of the Act. From the evidence before me, I find
that these terse inquiries lack the requisite coercive ele-
ment and, accordingly, I shall recommend that the com-
plaint be dismissed in this regard.
In mid-July Vitale telephoned Grobstein to make ar-
rangements for service on his personal automobile. In the
course of their telephone conversation at this time, Grob-
stein remarked to Vitale that Childress most likely would
close or sell the dealership if there was a union contract
"presented." Vitale's testimony about this incident was
not contradicted by Grobstein. Accordingly, I find that
Grobstein's statement at this time is one further trans-
gression of Section 8(aXl) of the Act as it is an unsup-
ported coercive statement that a union contract would or
could result in the closing of the dealership. NLRB v.
Gissel Packing Co., 396 U.S. 804 (1969).
C. Additional Findings and Conclusion with Respect
to the Other Alleged Violations of Section 8(a)(3)
The General Counsel has alleged that the Respondent
violated Section 8(aX3) of the Act by its conduct in plac-
ing Reynolds and Vitale on probation on May I; by plac-
ing Jonovich, Leathers, and Nixon on probation in early
July; by discharging Vitale on June 1 and Reynolds on
July 10; by withholding moneys from the commission
check of Reynolds solely as a result of the Cardovana
automobile incident about June 25; by canceling the
steak-fry scheduled for May 30; and by withholding
"house deals" from union supporters.
The parties vigorously dispute the discharges of Reyn-
olds and Vitale. The Respondent correctly notes that
union or concerted activity does not serve to shield an
employee from lawfully motivated discipline, NLRB v.
Anchorage Times Publishing Co., supra; NLRB v. Park
1099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edge Sheridan Meats, 341 F.2d 725 (2d Cir. 1965). On the
other hand, an employee's comparatively poor produc-
tion record does not provide an employer with license to
mete out disciplinary action where such action is, in fact,
motivated by the Respondent's animus for the employ-
ees' protected activities. In essence, the issue with re-
spect to all of the 8(a)(3) allegations of the General
Counsel's complaint boils down to whether or not a pre-
ponderance of the evidence establishes that the Respond-
ent's motive for actions which it took was tainted in any
substantial part by its opposition to the unionization of its
sales force.
Section 8(a)(3) and (1) of the Act are violated if an
employer discharges or otherwise discriminates against
an employee because of the union activities of its em-
ployees. Great American Sewing Co. v. NLRB, 578 F.2d
251 (9th Cir. 1978); NLRB v. El Dorado Club, 557 F.2d
692 (9th Cir. 1977); NLRB v. Coast Delivery Services, 437
F.2d 264 (9th Cir. 1971). Hence, absent unusual circum-
stances not relevant here, the crucial determination
which must be made in cases involving discrimination
within the meaning of Section 8(aX3) of the Act is factu-
al, i.e., what is the actual motive for the employer's
action which the General Counsel alleges to be discrimi-
natory? Hambre Hombre Enterprises v. NLRB, 581 F.2d
204 (9th Cir. 1978); Sante Fe Drilling Co. v. NLRB, 416
F.2d 725 (9th Cir. 1969). Direct evidence of an antiunion
motive is rare and, for that reason, reliance on circum-
stantial evidence and the reasonable inferences which
may be drawn therefrom is not only permissible, most
often it is necessary. Hambre Hombre v. NLRB, supra;
NLRB v. Warren L. Rose Castings Inc., 587 F.2d 1005
(9th Cir. 1978). It is seldom that an employer will supply
direct evidence concerning its state of mind in cases of
this nature which is not also highly self-serving. Shattuck
Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir.
1966).
Recently, in Golden Day Schools v. NLRB, 644 F.2d
834 at 838 (9th Cir. 1981), the Ninth Circuit cautioned:
Self-serving declarations by [the company's] man-
agement personnel regarding their motivation are
not conclusive. Indeed, when [it is determined] that
such declarations are untrue, the false assertions of
lawful purpose support the inference that the de-
clarants' motive was unlawful.
Under the analytical approach which I am bound to
follow, the General Counsel has the burden of proving
that an employer's adverse action against his employees
was discriminatorily motivated. If the General Counsel is
successful in proving a prima facie case of discriminatori-
ly motivated conduct, the employer then has the burden
of showing that the adverse action would have occurred
even if the employee (or employees) had not engaged in
the protected activity. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (Ist Cir. 1981). This formal
framework for analyzing these cases has been accepted
by the Ninth Circuit Court of Appeals. See, e.g., Zurn
Industries v. NLRB, 680 F.2d 683, 686-693 (9th Cir.
1982), and the earlier cases cited therein from the Ninth
Circuit. 1'
The evidence here convinces me that the Respondent's
managers harbored a deeply held animosity toward the
representation of its employees by a labor organization.
The evidence is practically uncontradicted that Childress
was visibly upset when he spoke to the sales staff on
April 27, 3 days after he received the Union's petition
for an election. The level of his emotional involvement
with the issue is also vividly illustrated by Childress'
own remarks equating the employees' action in seeking
to be represented with divorce. The same is true of
Hawthorne who became visibly disturbed at Vitale's re-
marks during the April 27 sales meeting, Majercin's ad-
mission that he was "deeply hurt" by the unionization
effort, and finally Grobstein's remarks to the effect that
Childress would close or sell the enterprise before he
would deal with the Union. That the Respondent's man-
agers were making a conscious effort to be hostile is re-
flected in Beian's conversations with Childress in early
June when he told her "you asked for it" and again in
early July when he clearly implied that things were
going to change because of the Union. In short, the evi-
dence is clear and unmistakable by the foregoing and nu-
merous other actions and statements by the Respondent's
managers that the employees' desire to be represented by
a union poisoned the atmosphere at "the friendliest place
in town." Moreover, the variety of evidence presented
by the General Counsel demonstrates that the Respond-
ent's management harbored this deeply held animus
throughout the relevant period here from late April to at
least early July. The nature of the animus expressed by
the Respondent here serves as persuasive evidence of the
Respondent's motive for the disciplinary actions which
are questioned by the General Counsel.
Historically, the Childress dealership did not exhibit a
harsh attitude toward its sales personnel. It is uncontra-
dicted that the dealership's reputation as a place to work
was regarded as a country club. Hawthorne could only
recall four individuals who had been let go for their pro-
ductivity in his 10 years as the sales manager and the
convincing rebuttal testimony of Lee Burnt (one of the
four) to the effect that he was told he was being laid off
in order to protect the earnings of the older salespersons
in the bad economic times casts a significant doubt over
even that aspect of Hawthorne's testimony. Nevertheless,
when this record is compared with the fact that in the 3-
month period after the Union petitioned for an election,
five of the Respondent's salespersons were placed on
probation and two were discharged, it becomes evident
that the Respondent made a major alteration in its per-
'" A significant portion of the Respondent's brief is devoted to pre-
senting the criticism of the Board's Wright Line test by other courts of
appeals. On November 15, 1982, the U.S. Supreme Court agreed to
review a case decided adversely to the Board's position in Wright Line.
NLRB v. Transportation Management Corp. (103 S.Ct. 2496 (1983)]. In
February 1983, the Board notified the Supreme Court that it had no ob-
jection to holding respondent's petition for certiorari in Zurn in abeyance
pending the disposition of the Transportation Management case. In view
of these developments, no useful purpose would be served by a lengthy
discussion of the Respondent's arguments concerning Wright Line's allo-
cation of the risk of nonpersuasion here.
1100
CHILDRESS BUICK
sonnel practices. The General Counsel believes that this
record merits the inference that this change in attitude
which worked to the detriment of the five salespersons
alleged to have been the subject of discriminatory treat-
ment was due to the effort to secure union representa-
tion. By contrast, the Respondent contends that changes
had to be made to stop its slippage in the ranking of
Buick dealers in the western region. In my view, the
General Counsel's argument is convincing and the Re-
spondent's is not.
With respect to the Respondent's position, it should be
observed at the outset that there is no evidence in this
record that Buick officials were so concerned with the
Respondent's early 1981 performance that they contem-
plated taking the drastic step of adding another dealer-
ship in the Phoenix area. And, even if the Respondent's
overall performance had dipped so precipitously, the Re-
spondent's recovery tactics were totally out of character.
Instead of aiding and working with the members of the
sales staff who were encountering difficulties as de-
scribed by Childress in the April 27 sales meeting and in
his July conversation with Beian, it is practically uncon-
tradicted that the Respondent's managers adopted a hos-
tile and abrasive demeanor in its dealings with the sales
force. Moreover, the Respondent's largest decline actual-
ly occurred in January and February 1981, and there is
no evidence of alarm until after the Union appeared on
the scene in late April.
Noticeably absent from the testimony of the Respond-
ent's managers is any claim that Reynolds and Vitale
were not putting forth their best efforts to sell automo-
biles. Additionally, there is no evidence that Respondent
ever utilized the probation device on any occasion prior
to May I when Reynolds and Vitale were told they had
30 days to improve their production. Hawthorne's ac-
knowledgment that he had not previously used the word
probation in the circumstances found here is tantamount
to an admission that the Respondent adopted and applied
this device as a part of its promised effort to get tough
with its sales employees. This conclusion is almost un-
avoidable where, as here, Reynolds and Vitale were
placed on probation only 4 days after Childress ex-
pressed his deep hurt at the action of the sales employees
and, in effect, promised retaliation.
A careful examination of the sales records for the first
4 months of 1981 would indicate that such action would
have been more justified in January and February than at
the beginning of May. As the General Counsel points
out, March and April were Vitale's most productive
months and during those 2 months he outsold some of
the Respondent's other salesmen. Reynolds' selection for
probation at the beginning of May is also inconsistent
with the Respondent's prior practices. In the first 4
months of 1981, Reynolds sold more units than two
other salesmen (Nixon and Vitale) and only one half a
unit less than Leathers. See Appendix A. In addition, the
General Counsel correctly notes that Reynolds' revenue
was actually the fourth highest for the entire new-car
sales staff. 17 The Respondent's effort to explain the
anomaly which arose as a result of placing Reynolds on
probation when he was generating such a significant
amount of revenue albeit with fewer sales than several
other salespersons was simply unsuccessful. According to
the Respondent's argument, the key indicator of produc-
tion among its sales personnel is the number of units sold
rather than the amount of revenue generated. The Re-
spondent's explanation that it was nervous about what
Buick would do because of the decline in the number of
new units sold is simply inexplicably inconsistent with
the fact that it took no disciplinary action whatsoever
against any member of its sales force when it suffered the
greatest decline in unit production in the months of Janu-
ary and February. Moreover, the fact that the Respond-
ent rewarded Reynolds in past years for his high produc-
tion belies its assertion that it measures the production of
its sales force on the basis of the units sold. As the Gen-
eral Counsel noted, in 1979, Reynolds was given an
award for being the Respondent's number 3 salesperson.
During that year, Reynolds sold fewer units than all
new-car salespersons save one. However, the revenue
generated on the units he sold was the third highest
among the sales force. This productivity approach is also
consistent with Hawthorne's remark to Reynolds in Feb-
ruary that he was one of those selected to appear in the
Respondent's TV commercials because he was among
the top five salespersons.
The fact that Hawthorne went to such a protracted ex-
planation of Childress' lack of involvement in the chang-
ing of the compensation plans at the time that he told
Reynolds that he was being placed on probation strongly
indicated that the principal concern on Hawthorne's
mind at that time was Reynolds' leadership role in the
organizational effort which stemmed directly from the
change in the compensation plans. Similarly, Childress'
two invitations to Reynolds to resign because he did not
appear to be "happy" can only be regarded as a thinly
veiled invitation to leave if he felt he had to be repre-
sented by a union. Apart from Reynolds' union activity
there is simply nothing else which would indicate that
Reynolds was not happy. In view of the foregoing and
the Respondent's other contemporaneous, unlawful ac-
tions found in section B, above, I find that the Respond-
ent adopted and implemented probation not as a legiti-
mate disciplinary device but as a terror tactic designed to
achieve the retaliation it promised employees who select-
ed the Union to represent them. Having so concluded, I
find that the Respondent violated Section 8(aXl) and (3)
of the Act by placing Reynolds, Vitale, Jonovich, Leath-
ers, and Nixon on probation and by discharging Reyn-
olds and Vitale as a direct result of the Respondent's use
of the unlawful probation device.
With respect to the steak-fry cancellation, I find that
this action was taken unilaterally by the Respondent as a
direct result of the personal animosity its management of-
ficials felt toward the members of the sales staff for
having selected the Union to represent them. Haw-
'" The Respondent claimed in argument early in the hearing that com-
parisons between the new- and used-car salespersons are not valid meas-
ures of productivity.
1101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thorne's assertion that the steak-fry was canceled by
mutual consent is not credited where, as here, there is
not one scintilla of corroborative evidence to support
this assertion. Accordingly, I find the Respondent violat-
ed Section 8(a)(1) and (3) of the Act by canceling this
event.
Similarly, as I have concluded that the reprimand of
Reynolds and the back charging of his account for gaso-
line supplied to Cordovana was inconsistent with the
practice theretofore and as no reprimand or discipline
was meted out to Wubben, it is fair to infer, as I have,
that this action also was motivated by Reynolds' union
activity. Accordingly, I find this action also violated
Section 8(a)(1) and (3).
However, I do not agree that the General Counsel has
met the requisite burden of proof with respect to the al-
legation that the Respondent unlawfully discontinued as-
signing house deals to its sales force in retaliation for
their protected activities. In this regard, the house deals
were typically fleet sales arranged by the managerial
staff and credited to the account of one of the salesper-
sons. The result to the salesperson was a $25 commission
and credit for a unit sold. Credit for fleet sales among
the sales force was greatly reduced in June when the Re-
spondent hired Jerry Smith as a fleet salesman. Between
June and December 1981, there were 81 fleet sales.
Forty-eight of these sales were credited to the four new
salespersons hired by the Respondent in June, including
32 which were credited to fleet salesman Smith. My
review of the distribution made of the remainder of the
fleet sales simply fails to indicate any pattern which
could be deemed to be discriminatory. Likewise, there is
no evidence to support any contention that the Respond-
ent's action in hiring a fleet salesman was grounded on
anything other than a valid business judgment. Accord-
ingly, I find that the evidence is insufficient to sustain the
allegation concerning house deals set forth in paragraph
13 of the complaint and, therefore, it will be recommend-
ed that that allegation be dismissed.
V. THE REMEDY
Having found that the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(l) and
(3) of the Act, the recommended Order will require that
the Respondent cease and desist therefrom and take such
affirmative action as will effectuate the purposes of the
Act.
With respect to the affirmative remedial action, it will
be recommended that the Respondent be ordered to
offer Donald Reynolds and Frank Vitale immediate and
full reinstatement to the former or substantially equiva-
lent positions of employment, discharging if necessary
any individuals hired after their termination, without
prejudice to the seniority or other rights and privileges
enjoyed by them prior to the discrimination found herein
to have been practiced against them. It will be further
recommended that the Respondent be ordered to ex-
punge from its records any reference to the discriminato-
ry terminations or probationary discipline found unlawful
herein. Sterling Sugars, 261 NLRB 472 (1982). It will also
be recommended that the Respondent be ordered to
make Reynolds and Vitale whole for the losses which
they suffered as a result of the discrimination found to
have been practiced against them, including the reim-
bursement of Reynolds for the money deducted from his
pay for the gasoline supplied in connection with the de-
livery of the Cordovana automobile in June 1981. The
amount of any backpay due to the above-named employ-
ees shall be computed in the manner provided by the
Board in F W. Woolworth Co., 90 NLRB 289 (1950),
with interest thereon as provided by the Board in Olym-
pic Medical Corp., 250 NLRB 146 (1980), and Florida
Steel Corp., 231 NLRB 651 (1977). And see generally Isis
Plumbing Co., 138 NLRB 716 (1962). It will be further
recommended that the Respondent be ordered to distrib-
ute a sum equal to the per employee expenditure for the
steak-fry immediately preceding the steak-fry scheduled
for May 1981, and unlawfully canceled, to each employ-
ee who would have been entitled to attend. Although I
have concluded that the Respondent engaged in unlawful
conduct by advising employees that it was rescinding the
compensation plans placed in effect on April 1, the Re-
spondent will not be required to implement the April 1
plans unless so requested by the Union. Finally, it will be
recommended that the Respondent be ordered to post
the notice to employees attached, as Appendix B, for 60
consecutive days in order for employees to be apprised
of their rights and the outcome of this matter.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce or in an
industry affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating its employees; by threat-
ening its employees with the closure or sale of its busi-
ness, or more onerous working conditions or refusal to
sign a collective-bargaining agreement; by soliciting
grievances of employees in circumstances showing that it
was implicitly promising to take corrective action; and
by advising employees that it was rescinding the com-
pensation plans implemented on April 1, 1981, the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
4. By adopting and imposing periods of probation on
Donald R. Reynolds, Frank Vitale, Keith Leathers,
Thomas Jonovich, and Chuck Nixon; by terminating
Donald R. Reynolds and Frank Vitale; by canceling the
employee steak-fry scheduled for May 30, 1981; and by
deducting money from Reynolds' pay for gasoline pro-
vided to customer Cordovana in June 1981, all in order
to discourage employees from engaging in union activi-
ties, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The General Counsel has failed to establish that the
Respondent unlawfully created an impression that em-
ployee union activities were being kept under surveil-
lance, that the Respondent unlawfully ceased distributing
1102
CHILDRESS BUICK
house deals to its sales force in order to discourage union
membership, or violated the Act in any other manner
other than as found herein.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed' s
ORDER
The Respondent, Childress Buick, Phoenix, Arizona,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or refusing to reinstate employees;
placing employees on probation; canceling employee
social events which it sponsors; or deducting money
from its employees' pay for supplies provided to custom-
ers in accord with its policy because of its employees'
activities on behalf of Transport and Delivery Drivers,
Warehousemen and Helpers Local Union 104, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America (the Union).
(b) Coercively interrogating employees; threatening
employees with more onerous working conditions, the
closing or sale of its business, or its refusal to sign a col-
lective-bargaining agreement; and soliciting grievances or
advising employees of changes in their compensation
plans in order to discourage support for, or activities on
behalf of, the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees because they choose to
engage in activities on behalf of the Union.
2. Take the following affirmative action in order to ef-
fectuate the policies of the Act.
(a) Offer immediate and full reinstatement to Donald
R. Reynolds and Frank Vitale and make them whole for
the losses they incurred as a result of the discrimination
against them in the manner specified in the section above
entitled "The Remedy."
"' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(b) Reimburse Donald R. Reynolds for the money de-
ducted from his pay in connection with the gasoline sup-
plied for the Cordovana auto in June 1981 as specified in
the section entitled "The Remedy."
(c) Reimburse employees in the manner specified in
"The Remedy" for the May 1981 steak-fry and reinstate
April 1, 1981 pay plans as requested by the Union.
(d) Expunge from its records any reference to the un-
lawful termination or unlawful probation of Donald R.
Reynolds, Frank Vitale, Keith Leathers, Thomas Jono-
vich, and Chuck Nixon.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports and all other records nec-
essary or useful to a determination of the amount of
backpay or other reimbursement due under the terms of
this Order, the propriety of any offers of reinstatement,
and the Respondent's compliance with subparagraph
2(d), above.
(f) Post at shop in Phoenix, Arizona, copies of the at-
tached notice marked "Appendix B." 19 Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that those allegations of the
complaint which the General Counsel failed to prove are
dismissed.
19 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX A
1981 Sales and Earnings
January February March April Year To Date
New Used Earn' New Used Earn New Used Earn New Used Earn Units Earn
Beian .........................
Bender.......................
Collins's .....................
Cooper ......................
Couglin z ...................
Crider' ......................
Durham .....................
Flietz' .......................
Goorhouse' ..............
G unsalus ...................
Jonovich' .................
Leathers ...................
5.0
12.0
1.5
7.0
0.5
1.0
7.0
(3)
14.0
1.0
4.0
-0-
3.0
9.0
3.5
6.5
7.0
-0-
12.0
(3)
-0-
7.0
1.0
$778
2172
1949
1032
1867
1854
1091
2701
(3)
1013
1662
1080
12.0
16.5
2.0
13.5
-0-
-0-
10.0
-0-
1.0
8.5
1.0
12.0
-0- $1370
3.0 2312
9.0 2617
2.0 1644
13.0 3112
10.0 1684
1.5 1677
11.0 3254
5.0 1599
-0- 888
12.0 2246
2.0 1771
14.0
18.0
1.0
12.5
1.0
-0-
16.5
0.5
4.0
21.5
1.0
5.0
1.0
2.0
14.0
-0-
12.0
11.0
1.0
10.0
8.5
1.0
11.5
1.0
$1998
3189
2803
1932
2785
2166
2983
2474
2829
2476
1786
827
11.5
14.5
-0-
(3)
-0-
1.0
3.5
-0-
1.0
10.0
-0-
7.0
-0-
2.0
8.5
(3)
5.0
6.0
2.0
9.5
8.0
-0-
5.0
1.0
$1332
2448
1667
(3)
1303
1663
707
2658
2188
862
831
1035
43.5
71.0
45.0
38.5
38.0
36.0
41.5
43.0
27.5
55.0
38.5
33.0
$5478
10121
9036
4628
9067
7367
6458
11087
6616
5239
6525
4713
1103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A-Continued
1981 Sales and Earnings
January February March
New Used Earn' New Used Earn New Used Earn New Used Earn Units EarnO
N ixon ........................
Peterson ....................
Reynolds ...................
Thom son ..................
Vitale.........................
6.0
5.5
6.0
10.5
3.0
-0-
3.0
1.0
1.0
-0-
723
1876
1558
1736
500
11.5
20.5
6.5
6.0
5.0
-0-
0.5
2.0
-0-
1.0
1255
3543
1691
805
693
7.5
13.5
8.0
15.5
13.0
-0-
2.0
1.0
2.0
135
3280
1411
1788
2610
1 Earnings are rounded to nearest dollar. Bonuses, awards, and contest earnings are excluded.
2 Used-auto salesperson.
s No record.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discharge any employee, put any em-
ployee on probation, cancel social events which we
sponsor, or deduct money from anyone's pay for supplies
which we ordinarily provide to customers in order to
discourage any of you from becoming or remaining
members of Transport and Delivery Drivers, Ware-
housemen and Helpers Local Union 104, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America.
WE WILL NOT question you concerning your activities
on behalf of, or desire for representation by, Local 104.
WE WILL NOT solicit your grievances in order to dis-
courage you from seeking to be represented by Local
104.
WE WILL NOT threaten you with more onerous work-
ing conditions or the closure or sale of the dealership or
with a refusal to sign a properly negotiated collective-
bargaining agreement in order to discourage you from
seeking representation by Local 104.
WE WILL NOT advise you that we are making changes
in your compensation plan in order to discourage you
from seeking representation by Local 104.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you because you exercise any of
the rights guaranteed you by the National Labor Rela-
tions Act.
WE WILL offer to reinstate Donald R. Reynolds and
Frank Vitale immediately to their former positions with-
out prejudice to any rights which they enjoyed when
they were employed by us and WE WILL pay to Rey-
nolds and Vitale the backpay which the National Labor
Relations Board finds to be adequate to compensate them
for the losses which they suffered because we unlawfully
discharged them or deducted from Reynolds' pay for
gasoline which was supplied to a customer.
CHILDRESS BUICK
April Year To Date
7.0
12.0
6.0
6.0
7.5
4
1.0
2.0
4
4
1063
2480
1337
486
1015
32.0
58.0
32.5
39.0
31.5
4276
11179
5997
4815
4815
1104