Ferrell-Hicks Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1964

149 N.L.R.B. 1512 (N.L.R.B. 1964)

1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Procedurally there is one distinction in the present matter because it so happened
that Respondent's attorney's law partner was acting as secretary to the Cleveland
Grievance Committee and, in fact, announced the award adverse to Weiss. However,
as there was no showing that this was not a purely ministerial act or that the secretary
took any part in the deliberations of the body, I conceive no good reason why the
award should be upset on this ground.
Thus, all the procedural elements required by the Denver-Chicago decision are
satisfied here.
On matters of substance the present case, like Denver-Chicago, is interesting. The
only subject which either grievance committee attempted to decide was whether there
was "good cause" under the contract for the discharge in each instance. Neither
grievance committee purported to decide the discriminatory nature, if any, of the dis-
,charge. In fact, in the instant case the transcript of the arbitration makes it clear that
the chairman of the grievance committee .pecifically eliminated from the considera-
tion of that body the question at issue here .)LO wit, whether Respondent had discharged
Weiss in retaliation for the fact that he had been filing grievances against Respondent
even as suggested by Seminatore, if the testimony of Weiss be believed. As noted
above, Chairman Marincheck stated during the arbitration that Respondent's specifica-
tion No. 8 (Weiss' grievance growing out of his refusal to work on the dock) "should
not even have been read into the record." Thus the grievance committee chairman
eliminated from consideration the very basis of the General Counsel's complaint here
In Denver-Chicago this difference in the issues was considered by the Board to be
immaterial.)
This brings up another undocumented contention of General Counsel here, to wit,
that Weiss was denied "a fair hearing and due process of law." Perhaps this is what
the Board was referring to in the Denver-Chicago case when it added the word
"collusion" in its last sentence of that decision quoted above. In Denver-Chicago an
aura of collusion between employer and union permeated the entire hearing There
was none such in the instant case, although Union Representative Lee, who supposedly
was presenting the case on behalf of Weiss, was far from energetic in his espousal of
that cause as he only spoke about seven times during the arbitration. Collusion could
be very easily accomplished and almost impossible to prove.
Accordingly, as I find nothing in the instant arbitration which conflicts with the
principles laid down by the Board in the Denver-Chicago case, I must find on the
authority of that case that the arbitration of the Weiss discharge was "fair and
regular" and, therefore, entitled to recognition.
This finding, of course, prevents me from even considering the merits of the General
Counsel's complaint herein and, therefore, I will recommend that this complaint be
dismissed in its entirety.6
On the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Modern Motor Express, Inc., is engaged in commerce within the meaning of
Section 2 (7) of the Act.
2. Respondent has not engaged in unfair labor practices within the meaning of
Section 8(a) (1) or (3) of the Act.
I recommend that the complaint in the instant matter be dismissed in its entirety.
In the event that I am permitted to make findings on the merits of this case, I believe
but do not find, that my recommendation would be unchanged.
Ferrell -Hicks Chevrolet, Inc. and Andrew Burinskas . Case No.
13-CA-4886. December 9, 1964
SUPPLEMENTAL DECISION AND ORDER
On April 22, 1963, a majority of a Board panel (Member Leedom
and former Member Rodgers) issued a Decision and Order, 142
NLRB 154, dismissing the complaint in this proceeding on the ground
149 NLRB No. 130.
FERRELL-HICKS CHEVROLET, INC. 1513
that the General Counsel had failed to establish by a preponderance
of the evidence that Respondent's discharge of Andrew Burinskas
had violated Section 8 (a) (3) and (1) of the Act. Chairman McCul-
loch, the third member of the panel, dissented because he agreed with
the Trial Examiner that the discharge had been prompted by
Respondent's animus against Burinskas' union activities.
Burinskas then petitioned the Court of Appeals for the District of
Columbia Circuit for review of the Board's Order. On January 8,
1964, the court remanded the case to the Board for reconsideration of
the Decision with a view to its clarification.' The court stated as its
reason for the remand that it had:
... difficulty in apprehending the basis for the Board's Order by
reason of ambiguities in its Decision deriving from the Board's
treatment of the Examiner's findings with respect to the credi-
bility of certain witnesses for the employer and uncertainty as to
the extent to which the Board rejected the Examiner's inferences
drawn from the evidence found credible.
The court further directed the Board to give all parties full oppor-
tunity to be heard upon any action it proposed to take as a result of
the remand. Pursuant to this direction, the Board served on all
parties a notice to show cause, dated July 28, 1964, why it should not
issue an Order setting aside its previous Order and adopting in all
respects the findings, conclusions, and recommendations of the Trial
Examiner. The action proposed to be taken pursuant to the court's
remand for reconsideration of-the Decision with a view to its clarifi-
cation was grounded on the following considerations, as set out in
the notice :
As the Board Panel which originally considered this matter
cannot be reconstituted, the questions presented by the Court's
remand have been considered by the full Board. A majority of
the Board is now of the opinion that, in accepting the Trial
Examiner's resolutions of credibility based on the demeanor of
the witnesses it should also have accepted the inferences which
the Trial Examiner drew from the facts as he found them. The
Trial Examiner discredited, the testimony of Respondent's wit-
nesses, Haggerty and Frachalla, as,to their asserted reasons for
discharging Burinskas. No credible reason for his discharge
having been established, it follows that the inferences drawn by
the Trial Examiner from the credited testimony of Burinskas
are entitled to great weight. The contrary inferences drawn by
the majority members of the Board Panel were based in part on
an acceptance of discredited testimony, and for that reason are
less supportable than the inferences of the Trial Examiner.
1 Andrew Burinska 8 v. N.L.R B., 55 LRRM 2300 (C.A'D.C.).
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The notice to show cause was signed by Chairman McCulloch and
Members Fanning and Brown. Member Leedom dissented because
(1) he considered it improper for the Board, in this posture of the
case, to reverse on its own motion its original Decision finding that
Respondent had not violated the Act; and (2) on the'merits, he found
that Burinskas had in fact been discharged for good cause.2
The Employer, Ferrell-Hicks Chevrolet, Inc., thereupon responded
to our notice to show cause. It urges, in accord with Member Leed-
om's dissent to the notice, summarized above, that the Board's pro-
posal to reverse its original Decision is improper because it exceeds
the scope of the court's remand; that the present Board majority is
estopped from issuing its proposed Order because it is at odds with
its own brief to the court in which it urged affirmance of the original
Decision to dismiss the complaint, and with the position taken in
oral argument before the court that the Board should be permitted
to clarify its Decision; that the remand does not require full Board
participation, and that Member Leedom, as the sole remaining mem-
ber of the majority in the original Decision, could, and should, alone
clarify that Decision; that the court's mandate required the Board to
afford the parties the opportunity to participate in the decision-
making process, including the right to be heard on whether this
matter should have been considered by the full Board; and finally, on
the merits, that Burinskas was terminated for nondiscriminatory
reasons.
Respondent's answer, and Member Leedom's dissent to 'the notice',
raise the question of what the court intended the scope of its remand
to be. We regard the remand as encompassing a full reconsideration
of our original Decision. The court, it seems to us, was not simply
seeking an explanation of how we, could justify our rejection of some
credibility findings made by the Trial Examiner and yet adopt
others; rather, the court's- concern was. more fundamental; namely,
why we had come to the conclusion • we reached in the face of the
Trial Examine'r's resolutions of credibility. The answer t6, this
question is given by the present Board majority in the' paragraph
quoted above from the notice to show cause. * -"We incorporate it in
this Supplemental Decision-and Order.
Moreover, even if Respondent be correct in ifs view that the scope
of the remand was limited to a clarification of our former holding,
2 Member Leedom would resolve the ambiguities in.the original Decision with respect to
the Board's treatment of the Examiner's findings as to the credibility of certain employer
witnesses, with which the court had difficulties, as follows: In accepting the TriarExam-
iner's resolutions based on credibility but nonetheless reversing his violation finding, the
Board intended, in its original Decision, only to accept the Trial Examiner's credibility
resolutions of testimonial conflicts as to the underlying facts, without accepting his re-
jection on grounds of credibility of the testimony of employer's witnesses as to their sub-
jective reasons for discharging Burinskas, or, his,conclusionary finding that the discharge
had been for discriminatory reasons.
FERRELL-HICKS CHEVROLET, INC. 1515
we believe the Board may nevertheless conclude, after reexamining
the basis for its former Decision, that it was wrong then, and that
the policies of the Act justify and require rectification of its error.3
As for Respondent's contention relating to participation by the
full Board rather than by panel, we think it apparent that the Board,
as a continuing body, is empowered to consider and reconsider, at
appropriate times, all matters coming before it, with such participa-
tion therein as it may decide for itself. No party to a Board pro-
ceeding has a right to complain as to the Board's own internal pro-
cedures for determining who shall participate in judging his case,
particularly where, as here, the Board's decision has been joined in by
a majority of the full Board. With respect to Respondent's further
contention that the only remaining member of the former panel
majority should alone consider this remand, the short answer is that
the Board, under Section 3(b), is only empowered to act through a
majority of the Board, except when it has delegated authority to a
panel of three and then only by a majority of that panel.
Other contentions urged by Respondent not specifically answered
above have nevertheless been considered and are found to be without
merit. We also deny its request for oral argument as the issues and
positions of the parties have been ably expounded in the papers
before the Board.
For the foregoing reasons, we hereby set aside our previous Deci-
sion and Order in this proceeding, 142 NLRB 154, and hereby adopt
the Trial Examiner's findings, conclusions, and recommendation, as
modified below.
ORDER,
Pursuant,to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner, and orders that Ferrell-Hicks
Chevrolet, Inc., Chicago, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, with the following modifications:
1. Add the following as paragraph 2(b),,and renumber the follow-
ing paragraphs of Section 2 accordingly,:
"(b) Notify Andrew Burinskas if presently serving in the Armed
Forces of the United States of his right to .full reinstatement upon
application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
3 American Federation of Television and Radio Artists, AFL-CIO (L. B. Wilson, Inc.
(Radio Station WCKY)), 135 NLRB 297, and 133 NLRB 1736.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Immediately below the signature line in the Appendix 4 attached
to the Intermediate Report, insert the following :
NoTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military. Training and Serv-
ice Act of 1948, as amended, after discharge from the Armed
Forces.
MEMBERS LEEDOM and JENKINS took no part in the consideration of
the above Supplemental Decision and Order.
4 The address of Region 13 stated in the Appendix attached to the Trial Examiner's
Intermediate Report is amended to read • "881 U.S Courthouse and Federal Office Build-
ing, 219 South Dearborn Street, Chicago, Illinois, Telephone No 828-7572
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations Act,
as amended (61 Stat. 136; 73 Stat. 519), was heard before Trial Examiner David
London at Chicago, Illinois, from September 17 to 19, 1962 , pursuant to due notice.
The complaint, issued on June 22, 1962, by the General Counsel of the National
Labor Relations Board, on a charge dated May 14, 1962 , alleged, in substance, that
Respondent Ferrell -Hicks Chevrolet , Inc., had engaged in unfair labor practices
proscribed by Section 8(a)(1) and ( 3) of the aforementioned Act, by discharging
Andrew Burinskas on May 10, 1962, because he joined or assisted a labor organiza-
tion , or engaged in other concerted activity for the purpose of collective bargaining
or other mutual aid or protection . Respondent answered said complaint and,
though admitting that it discharged Burinskas , denied the commission of any unfair
labor practice. -
- Upon the entire record in the case,1 and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent , an Illinois corporation , is engaged in the sale of new and used cars,
trucks, and automobile parts, in the city of Chicago, Illinois. During the calendar
year 1961 , Respondent , in the course and conduct of its business operations , sold new
and used cars, trucks, and new parts, and serviced new and used cars and trucks at
retail , the gross value of which exceeded $500,000 . During the same period , Respond-
ent received goods valued in excess of $50,000, transported to its place of business in
interstate commerce directly from States of the United States, other than the State of
Illinois. Respondent admits, and I find , that at all times material , herein, it has been an
employer engaged in commerce within the meaning of Section 2(6) and (7) of the
Act. I
II. THE LABOR ORGANIZATION INVOLVED
Automobile Salesmen 's Union of Chicago and Vicinity is, and at all times material
herein has been , a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Andrew Burinskas , more generally known as Andy Burns and by which latter name
he will be referred to hereafter , was employed by Respondent as a salesman from
September 1955 to May 10, 1962, when he was discharged . In July . 1961 he became
a member of Automobile Salesmen 's Union of Chicago and Vicinity, hereinafter
referred to as the Union, and during the same month became chairman of its orga-
' Respondent 's unopposed motion , made on or about October 24, 1962 , to correct the
transcript of testimony is hereby granted, and the transcript is accordingly corrected.
Motions on which ruling was reserved at the hearing , are disposed of in accordance with
the findings and conclusions that follow.
FERRELL-HICKS CHEVROLET, INC. 1517
nizing committee. As such, he solicited membership in that Union from salesmen
employed by a substantial number of automobile dealers in the Chicago area, including
those employed by Respondent. The literature that was broadly circulated in that
campaign contained his signature as chairman of the organization committee.
Thereafter, Burns filed the Union's petition with the Board seeking an election
among the salesmen of five automobile dealers, including Respondent, to determine
whether those employees desired collective-bargaining representation by the Union.
Burns actively participated in the consolidated hearings on those petitions and gave
testimony herein, as did Bert Ferrell, president of Respondent On November 27,
1961, the Board's Regional Director issued his Decision and Direction of Election,
finding that a question concerning repiesentation existed and ordering the election
among Respondent's salesmen requested by the Union. The date of that election was
subsequently fixed foi December 20, 1961.
On the day following that which the aforementioned Regional Director had limited
as the time within which the notice announcing that election was to be posted, Burns
called Ferrell's attention to the fact that the notice had not yet been posted. Ferrell
replied that he had just received the notices that morning and hat he had no objection
to having them posted by Burns. Burns went to Ferrell's office, took the notices and
proceeded to a glass partition near the telephone switchboard, and posted the notice.
As he was engaged in that task, Ferrell passed by and, looking at Burns, said: "No
s- of a b- is going to tell me how to run my business." Burns turned to
Ferrell and, raising his hand to his ear, asked Ferrell to repeat what he had said.
Ferrell looked at Burns and repeated the remark just attributed to him, word for word
Burns "looked at him kinda funny," and walked away.2
On December 15 or 16, 1961, Ferrell informed Burns that the Christmas party, at
which a cash bonus was to be distributed to the salesmen, would be held on Tuesday,
December 19. Burns told Ferrell that he could not hold the party "this close to the
election" because of a "ruling ... pertaining to 24 hours before election time when
[he could] not throw this party." 3 Ferrell said he would check the matter and Burns
left Ferrell's office. Ferrell made a telephone call and later told Burns that he was
"right," and that the party would be held on Monday, December 18. When Burns
asked why it had to be on that Monday, and not on the preceding Friday or Saturday,
Ferrell merely replied that he thought "the men [would] enjoy it on a Monday," and
the party was held on that day.
A few days before the election, Respondent, over Ferrell's signature, sent a letter
to its salesmen other than Burns, "referring to salesmen and the Company as a
marriage and they couldn't afford to have a third party coming in to break up this
marriage."
The Union lost the election conducted on December 20 among Respondent's sales-
men, but was successful in the vote conducted on that day among the salesmen of two
other dealers.
Isabel LaBan, Respondent's bookkeeper and its observer at the election, testified
credibly that while "the men were taking turns to cast their vote" and Ferrell was
standing about 25 to 30 feet away, "telling the men to go and cast their ballots and get
the election over with," Burns, observing Ferrell, said in LaBan's presence: "Get that
s- of a b- out of here." When the election was completed, LaBan reported
Burns' remark to Alma Klinnicke, Respondent's business manager. The latter
immediately informed Jack Haggerty, Respondent's sales manager, of Burns' remark.
On the day following the election, Ferrell told Burns to "forget" the election, that he
had instructed "the boys not to tease [him], not to horseplay with him," but only to go
back to work. Burns remonstrated that he was "really hurt" by the results of the elec-
tion because he felt that "it was [Respondent's] money that beat [him] "
Because elections at other dealers were coming up, Burns drafted and signed a
bulletin entitled "Keep the Ball Rolling." In addition to arguments for continuing
the Union's campaign, the bulletin contained the following pertaining to the election
among Respondent's employees:
The results of the first five elections are in. The results are encouraging. Your
Union of Automobile Salesmen now has a nucleus on which the build for the
future.
The election losses point up some interesting facts: Ferrell-Hicks-the regular
professional auto salesmen were for the Union, the newly hired, come lately
a Ferrell admitted he made the remark attributed to him in the text, but testified that
it had reference to a telephone caller who called him several minutes earlier and who
gave him "quite a chewing out" I do not credit that explanation.
3 See Peerless Plywood Company, 107 NLRB 427.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"salesmen" were against the Union The election was lost 12 to 8. A switch of
three votes would have meant a union victory. Ferrell-Hicks at the time of filing
for the election only employed 12 salesmen. By election time 20 salesmen were
on the floor.
Burns mailed the bulletin to all members of the Union and personally distributed
copies thereof to Respondent's salesmen. Copies of this bulletin must have reached
Haggerty within a few days after the election for he then called Burns into his office
and told him that he thought Burns was "through with the Union." Burns replied that
Haggerty ought to "wait and see the results of the election to be held" later that month
and then he would know whether Burns was "through or not." Haggerty admitted he
made this inquiry so he would "know, honestly, whether he was or wasn't" through
with the Union.
In January 1962, the Union drafted wage proposals for submission to the Ford
dealers where the Union had won the election. The proposals were mailed to the
union membership and copies were circulated among Respondent's salesmen by Burns.
Haggerty admitted he saw these proposals and that he told Burns that "it was economi-
cally impossible for a dealer in the Chicago area to pay that amount of money to their
salesmen and stay in business."
During a day in the week, or 10 days before Burns was discharged on May 10;
Haggerty asked him "what's going on" with the Union. Burns replied that the nego-
tiations with the other dealers were being unduly delayed by evasive tactics.and that
the "government [was] going to start looking into this."
Thomas Franchalla, employed by Respondent as its used-car manager since
March 7, 1962, testified that during the evening of Monday, May 7, 1962, while four
or five salesmen were on duty, he observed a young couple drive up and enter the
showroom. He further testified that because the salesmen were "completely ignor-
ing the people," he greeted and gave them the price of a new car which "didn't quite
suit them.", He then suggested purchase of a used car, took them over to the used-car
lot in a "pouring" rain and, "within 30 minutes from the time they entered the door,
[they] were changing the plates to make delivery of the used car." Franchalla, as
used-car manager, got no commission for making that sale. If the sale had been
made by a salesman, the latter would have been entitled to a commission thereon.
On the following day, May 8, some of the salesmen , "grumbling in dissatisfaction,"
complained to Burns about Franchalla's conduct of the evening before in "grabbing a
customer [from] an up ," and selling him a car .4 At a regularly scheduled meeting of
salesmen during the morning of Wednesday, May 9, Haggerty, in order to improve
the sales technique of the salesmen, brought up the incident of the previous Monday
when, in his words, Franchalla "had taken an up on the showroom floor." Herbert
Harrison , a salesman , with other salesmen "all pitching in ... explicitly pointed out
that it wasn't right for [Franchalla] to have taken that up." Haggerty told the men
that Franchalla "had not taken this up until the customer had walked past four or
five salesmen that were on the floor , spent some time waiting and looking at a car,
and then went over and greeted him and talked to him." At the conclusion of that
discussion Burns said: "Ali s-t, he's just trying to make a point." Though Haggerty
testified that, in his opinion, Burns' remark "ruined the whole effect" of his talk,
the only factor to which he pointed for drawing that conclusion was that, following
Burns'remark, "all the men ... broke out laughing." 5
Later during the same day, Burns came to Haggerty's office and told him that
"what Franchalla did ... was a stinko," and added: "Jack, Tom Franchalla is out to
get your job."
Wednesday, May 9, the day of the aforementioned meeting being his day off,
Franchalla did not go to Respondent's premises during that entire day. He testified
however, that about 9 p.m. of that day, on his way home from a visit to his mother-
in-law, he went to Respondent's place of business to check and "see if everything was
in order in [his] department." He further testified that he met Haggerty there as the
latter was driving a car out of the building, asked him how things had gone that day,
and that Haggerty told him that the discussion at the meeting concerning Franchalla's
sale of the previous Monday evening "got kicked around, and [that] Andy Burns told
him to look out" for Franchalla.6 He further, testified that when he asked for-more
* An "up" is the term applied by salesmen to designate which salesman it is who is
entitled to the next prospective customer who- appears in the showroom:
5
Alvin Herman, .a, witness* in behalf of Respondent, testified that Haggerty joined in
the laughter.
6 Haggerty testifled'that he told Franchalla' that he "had a"little problem (that] morn-
ing and also-had another problem in [his] office with Andy Burns."
FERRELL-HICKS CHEVROLET, INC. 1519
information, Haggerty told him that he had some people waiting for him and asked
Franchalla to stop at his home later- that evening. Franchalla reached Haggerty's
home about 10 p.m. and Haggerty arrived an hour later.
At that time, Haggerty testified, he told Franchalla about what happened at the
meeting that morning, and that Burns had warned him that Franchalla was "out to
get [his] job." Franchalla testified he then repeated what he "had already reported"
to Haggerty, that Burns had told him that Haggerty "smile[s] with [his] teeth, but
[one] could tell [he] wasn't sincere by looking into [his] eyes," and that Haggerty was
trying to "start the Haggerty dynasty at Ferrell-Hicks." 7 Haggerty further testified
that he then told Franchalla that Burns had also called Ferrell a "s- of a b-,"
and that both men decided to discharge Burns on the following morning
Burns was, however, not discharged until about 5 p.m. of the following day when
he was called into a private office where he found Franchalla and Haggerty. Fran-
challa, scratching his head, told Burns he did not know "how to begin" but then stated
that he understood that Burns had "made a statement about [him] to Jack Haggerty."
Burns admitted that he had. Franchalla then asked Bums whether he remembered
the occasion in March 1962, described above, when he "made a statement to [him]
about Jack Haggerty." Burns replied that he did, and then asked: "So what? Does
this mean I'm fired?" Haggerty replied that it did.
Burns asked whether "there was anything wrong with [his] work as far as sales,
honesty ... anything wrong with [his] job as a salesman?" Franchalla replied there
was not, and that while he thought that Burns was a "wonderful salesman, that wasn't
it."' Burns then accused Franchalla of also having "made a lot of statements" and
one in particular which, to save Franchalla embarrassment, he wouldn' t mention in
front of Haggerty. The latter thereupon left the office, following which Burns asked
Franchalla whether he remembered calling Ferrell the revolting sexual name reported
in the transcript of testimony. Franchalla made no denial or reply and walked out
of the office.
Burns the filed a claim for compensation with the Division of Unemployment
Compensation for the State of Illinois. On July 31, 1962, that body made a determina-
tion that "it has not been shown that the claimant committed any act to cause dissen-
sion between employees. He was not discharged for misconduct connected with his
work." 8
Concluding Findings
There is only one issue involved in this proceeding-was Burns discharged "because
of his union activities and in order to defeat unionization of -[Respondent 's] automobile
salesmen" as urged by the General Counsel, or was he discharged for the reasons
stated by Respondent's counsel in response to my inquiry during the hearing-that
Bums made "remarks that were disrespectful towards management" and which the
latter "felt had the effect of dividing management."
The question so posed is not susceptible of easy determination as it involves an
inquiry into the state of mind of Haggerty and Franchalla. That inquiry requires
that all the facts and circumstances disclosed by the record be carefully considered
and appraised with due regard for the well-established principle that the harshness
of Respondent's action, by itself, does not establish unlawful discrimination.
That Respondent had knowledge of the extremely active role played by Burns in
behalf of the Union is not, indeed could not be, challenged on the record made herein.
Neither is it denied that Burns was one of Respondent's best salesmen. Thus, at the
Christmas party at which there was a distribution of a jackpot bonus among all of
Respondent's 15 to 20 salesmen, the amount of which was based on each man's sales,
Burns' bonus check was exceeded by only one other salesman . Also based on his
performance, he had for- 3 to 4 years preceding his discharge, achieved membership
in Chevrolet's Hall of Honor Club, and had been awarded a cabinetmaker's electric
saw,-a moving picture camera, binoculars, silver bookends, and numerous other prizes.
In light of that record and the fact that Respondent was opposed to the organization
of its salesmen, the reasons assigned for terminating Burns' services must be carefully
scrutinized. Here again, however, I am duly.mindful that an employer may, by
lawful means, express his opposition to the Union, discharge an employee for a good
Burns testified he made such a remark, in substance, to Franchalla a day or two after
the latter"was'employed by Respondent as.'used-car manager on-March 7, 1962, in response
to: Franchalla's inquiry as -to what'Burns thought of Haggerty. 'Franclialla testified he
reported Burns' remark to Haggerty "within 30 minutes" thereafter
i ",That determination, though' not: conti olling'(5n' me, is nei ertheless relevant and may
be considered by me. Ae`rovox'Corpo)-ati6n,"104"NLRB-,246; "Cadillao Marine & Boat
Company, 115 NLRB 107, footnote 1 ; Mitchell Plastics, Inc., 117 NLRB 597, footnote 1.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or a bad reason, or no reason at all, except only that he may not do so for a reason
or by means proscribed by the Act. Nevertheless, human experience cautions that
employers do not lightly dispense with the service of a topnotch salesman and who is
therefore an outstanding money maker for his employer. With all of the foregoing
as guideposts, what were the offenses for which Burns was discharged.
The first "disrespectful" remark on which Respondent relies is the indecent remark
about Ferrell made by Burns to LaBan on the morning of the election on Decem-
ber 20, 1961.9 The record does not disclose that Ferrell was ever advised of Burns'
disrespectful inquiry to LaBan and, though it was reported to Haggerty within a few
hours after it was made, the latter apparently did not deem it of sufficient gravity
to mention it to, criticize, or admonish, Burns therefore until he was fired 5 months
later.
Turning now to the alleged "dissension" caused by Burns-setting Franchalla and
Haggerty off, one against the other-the first evidence of this alleged campaign to
create dissension , Respondent contends, concerns Burns' statement to Franchalla about
Haggerty's lack of sincerity a day or two after Franchalla was hired as used-car
manager on March 7, 1962. Viewing this accusation in a light most favorable to
Respondent , I cannot attribute to it the implication now drawn therefrom by Respond-
ent. It was an evaluation of Haggerty, solicited by Franchalla, an opinion which
Burns apparently entertained . And, though Franchalla testified that he reported the
remark to Haggerty within an hour or two after it was made, Haggerty was not suffi-
ciently disturbed thereby to discuss or even mention it to Burns until he discharged him
2 months later.
There remain for consideration the last incidents upon which Respondent relies-
Burns' remark at the sales meeting of May 9, and his statement to Haggerty later
during the same day that Franchalla was "out to get [his] job." With respect to
Haggerty's reaction to Burns' remark at the sales meeting and the part it allegedly
played in calling the nocturnal session with Franchalla, I am not persuaded that Hag-
gerty considered it so provocative as to require action by him. Indeed , the laughter
which it apparently induced, and in which Haggerty joined, helped to put an end to
a discussion of whether Franchalla had unduly deprived a salesman of the commis-
sion on the car Franchalla sold on May 7. And, though Haggerty testified to a con-
versation he had with Burns a few hours after the conclusion of the sales meeting on
May 9, the record fails to disclose that he then criticized Burns for his remark during
the meeting , or otherwise indicated any displeasure concerning Burns' conduct thereat.
On the entire record, I do not regard as worthy of belief the announced conclusion
by Haggerty and Franchalla that Burns' remark to Franchalla concerning Haggerty's
lack of sincerity, and his remark to Haggerty that Franchalla was out to get his job,
spaced more than 2 months apart, belong in the same category, or that they led to
their conclusion that Burns was playing one against the other, and should be fired for
that reason . Instead, consideration of the entire record, coupled with my observation
of the demeanor of the witnesses involved as they testified, have brought me to the
conclusion that they met clandestinely near midnight to concoct a defense having the
appearance of legality, and to cover the true reason for Burns' discharge-his union
activity.
I am convinced , and find, that Burns' remark at the sales meeting and his later
statement to Haggerty did not meet with such resentment by Haggerty as to induce
the near midnight meeting for an objective and honest consideration of those incidents.
Indeed, when Burns made the remark about Franchalla, Haggerty figuratively shrugged
it off as mere gossip by telling Burns he did not believe it, and without even deigning
to inquire of him the basis for his accusation against Franchalla.
Instead, I am convinced that during the afternoon Haggerty realized that Burns'
accusation against Franchalla presented him with an opportunity to utilize it as
plausible, without disclosing the real reason for getting rid of the chairman of the
Union's organizing committee thereby crippling, if not completely destroying, further
union activity among Respondent's salesmen. I am certain that if any other sales-
man had indulged in the conduct which Respondent now advances as the reasons for
which Burns was discharged, that no such unusual meeting would have been held, nor
would he have been similarly treated.
Considering Haggerty's reaction when Burns ' accusation against Franchalla was
made, I cannot believe that, absent an ulterior and discriminatory motive, he later
9 Without condoning that remark, it should be noted , however, a similar remark was
twice directly addressed to Burns by Ferrell about a week earlier.
FERRELL-HICKS, CHEVROLET, INC. 1521
concluded that the matter was so urgent that it had to be considered in the late hours
approaching midnight and could not be postponed to the regular business hours of
the following day. Instead , I find that Haggerty brought that nocturnal meeting about
so that he could concoct a scheme or rationale for discharging Burns which would
have an air of plausibility-reasons which prior to that time seemed not to unduly
disturb him.
The timing of Burns ' discharge lends credence to the conclusion just announced.
It will be remembered that it was only the day before that Harrison and other sales-
men at the sales meeting expressed resentment concerning Franchalla 's sale , a resent-
ment which Burns again voiced to Haggerty during the same afternoon . Significant
also is the fact it was only about a week before he was discharged , that Burns, in
response to an inquiry by Haggerty as to "what 's going on with the Union, " told him
that "the government [was] going to start looking" into the evasive practices of other
dealers in delaying collective bargaining with the Union . This warning , together
with what has heretofore been found with respect to Burns' union activity , must have
made it clear to Haggerty that Burns was far from "through" with the Union, as
Haggerty had earlier expressed the hope, and that he was instead still extremely active
therein . The foregoing coupled with the fact that the Union could , during the follow-
ing December , again petition the Board for an election among Respondent 's salesmen,
brought Haggerty to the realization that the best and quickest way to avoid organiza-
tion of those employees was to rid Respondent of the union 's most active proponent.
By discharging him for that reason , Respondent violated Section 8(a)(3) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection
with the operations of Respondent described in section I, above, have a close , intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
It having been found that Respondent engaged in unfair labor practices in violation
of Section 8(a)(1) and (3) of the Act, it is recommended that Respondent cease and
desist therefrom , and take certain affirmative action designed to effectuate the policies
of the Act. It is also recommended that Respondent offer Andrew Burinskas imme-
diate and full reinstatement to his former or substantially equivalent position without
prejudice to seniority and other rights and privileges , and make him whole for any
loss of earnings he may have suffered by reason of the discrimination against him,
by payment to him of a sum of money equal to that which he would have earned as
wages from the date of the discrimination against him to the date of offer of reinstate-
ment , less interim earnings , and in a manner consistent with Board policy set out in
F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed
in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It is further recommended , in view of the nature of the unfair labor practices
Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSION OF LAW
1. Respondent , Ferrell-Hicks Chevrolet, Inc., is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act and admits
to membership employees of Respondent.
3. By discriminating in regard to the hire or tenure of employment of Andrew
Burinskas , thereby discouraging membership in the above Union, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By engaging in the conduct set forth above, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
770-076-65--vol. 149-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that Ferrell -Hicks Chevrolet , Inc., Chicago,
Illinois , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Automobile Salesmen 's Union of Chicago and
Vicinity, or in any other labor organization by discharging , refusing to hire or to
reinstate employees , or in any other manner discriminating against them in regard
to their hire or tenure of employment or any term or condition of employment.
(b) In any other manner interfering with, restraining , or coercing its employees
in the exercise of their right to self-organization , to form labor organizations , to join
or assist the above -named Union or any other labor organization , to bargain collec-
tively through representatives of their own choosing , to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection , or to refrain
from any and all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer Andrew Burinskas immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights and
privileges , and make him whole for any loss of pay he may have suffered by reason
of the discrimination against him in the manner set forth in the section of this report
entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports , and all other records necessary or useful to an
analysis of the amount of backpay due under the terms of this Recommended Order.
(c) Post at its offices in Chicago, Illinois , copies of the attached notice marked
"Appendix ." 10 Copies of said notice , to be furnished by the Regional Director for
Region 13 , shall, after being duly signed by Respondent , be posted by Respondent
immediately upon receipt thereof , and be maintained by it for 60 consecutive days
thereafter , in conspicuous places , including all places where notices are customarily
posted. Reasonable steps shall be taken by Respondent to insure that said notices
are not altered , defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13, in writing , within 20 days from
the receipt of this Intermediate Report and Recommended Order, what steps Respond-
ent has taken to comply herewith."
"In the event of Board adoption of this Recommended Order, the words "a Decision
and Order" shall be substituted for the words " the Recommended Order of a Tiial Exam-
iner" in the notice In the further event of enfoicement of the Board ' s Order by a decice
of a United States Court of Appeals , the words "a Decree of the United States Court of
Appeals, Enfoicing an Order " shall be substituted for the words "a Decision and Order '
"In the event of Board adoption of this Recommended Ordei, this provision will be
modified to read. "Notify said Regional Director , in writing , within 10 days from the
date of this Order, what steps the 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 National Labor Rela-
tions Act , we hereby notify our employees that:
WE WILL NOT discourage membership in Automobile Salesmen's Union of
Chicago and Vicinity , or in any other labor organization of our employees , by dis-
criminating in regard to hire or tenure of employment or any term of employment.
WE WILL offer to Andy Burns immediate and full reinstatement to his former
position without prejudice to any seniority or other rights previously enjoyed,
and make him whole for any loss of pay suffered as a result of the discrimination
against him.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their rights to self-organization , to join or assist any
labor organization , to bargain collectively through representatives of their own
MAJESTIC WEAVING CO., INC., OF NEW YORK 1523
choosing , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from any and all
such activities.
FERRELL-HICKS CHEVROLET, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago 3, Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.
Majestic Weaving Co., Inc. , of New York and Textile Workers
Union of America , AFL-CIO and Local 815, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , Party to the Contract . Cases Nos. 2-CA-
9370 and 2-CA-9370-2. December 9, 1964
SUPPLEMENTAL DECISION AND ORDER
On June 29, 1964, the Board issued its Decision and Order in the
above-entitled proceeding finding that the Respondent had violated
Section 8(a) (1), (2), and (5) of the Act.' Thereafter separate
motions for reconsideration were filed by the General Counsel, the
Charging Party, the Respondent, and Local 815, the Party to the
Contract. The Board 2 has now carefully considered these motions.
Except with respect to certain aspects of the reimbursement issue the
motions present no matters not fully considered by the Board, and
they are hereby denied. The requests of the Respondent and Local
815 for oral argumet are also denied inasmuch as the issues and the
positions of the parties are adequately and clearly presented.
Concerning reimbursement, the General Counsel. and the Charging
Party urges the Board to require the Respondent to reimburse all
employees for fees and dues checked off in favor of, or paid directly
by, the employees to Local 815 pursuant to its union-security con-
tract with the Respondent, a contract obtained with 8(a) (2) assist-
ance as found in the Board's Decision. The record shows, as empha-
sized by the General Counsel, that in June 1963, when the Respond-
ent announced that it would begin to make deductions of dues pur-
suant to the contract, 20 employees signed petitions protesting the
proposed deductions. These petitions are in evidence as General
1147 NLRB 859.
2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with these cases to a three-member panel
[Chairman McCulloch and Members Fanning and Jenkins].
149 NLRB No. 135.