Galpin Motors, Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1970

183 N.L.R.B. 447 (N.L.R.B. 1970)

GALPIN MOTORS, INC.
Galpin Motors, Inc. and International Association of
Machinists , District Lodge 94 and Its Affiliated
Local Lodge 2327 . Cases 31-CA-1264-1,
31-CA-1264-2, and 31-CA-1264-3
June 16, 1970
DECISION AND ORDER
By MEMBERS MCCULLOCH, BROWN , AND JENKINS
On February 26, 1970, Trial Examiner Maurice
M. Miller issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices alleged in
the complaint and recommending that it cease and
desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no-
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that Galpin Motors, Inc.,
Sepulveda, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, as
modified herein:
1. Substitute the following for paragraph 2(a):
"(a) Offer Robert A. Ruffino, Alexander Ross,
and Sol S. Steelman immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges previously enjoyed, and make them
whole for any loss of pay which they may have suf-
fered by reason of the discrimination practiced
against them, consistent with the requirement set
forth within The Remedy section of this Decision."
447
2. Substitute the following for the fifth indented
paragraph in the notice:
WE WILL offer the employees named below
immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss
of pay which they may have suffered by reason
of the discrimination practiced against them.
Robert A. Ruffino
Alexander Ross
Sol S. Steelman
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner: Upon
charges and amended charges filed on November
26 and December 4, 1968, and duly served, the
General Counsel of the National Labor Relations
Board caused a complaint and notice of hearing to
be issued and served on Galpin Motors, Inc.,
designated as Respondent within this Decision. The
complaint issued March 14, 1969; therein, Respon-
dent was charged with unfair labor practices affect-
ing commerce within the meaning of Section
8(a)(1) and (3) of the National Labor Relations
Act, as amended, 61 Stat. 136, 73 Stat. 519. Within
Respondent's duly filed answer, certain factual
statements in General Counsel's complaint were
conceded; Respondent, however, has denied the
commission of unfair labor practices.
Pursuant to notice, a hearing with respect to this
matter was held at Los Angeles, California,
between April 30 and May 2, 1969, both dates in-
clusive, before me. The General Counsel and
Respondent were represented by counsel; complai-
nant Union noted its appearance through a business
representative. Each party was afforded a full op-
portunity to be heard, to examine and cross-ex-
amine witnesses , and to introduce evidence per-
tinent to the issues. Since the hearing's close, briefs
have been received from General Counsel's
representative and Respondent's counsel; these
briefs have been duly considered.
Upon the entire testimonial record, documentary
evidence received, and my observation of the wit-
nesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent raises no question herein with
respect to General Counsel's jurisdictional claims.
183 NLRB No. 58
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the complaint's relevant factual declarations,
which have not been controverted, I find that
Respondent was, throughout the period with which
this case is concerned, an employer within the
meaning of Section 2(2) of the Act engaged in
commerce and business activities which affect com-
merce within the meaning of Section 2(6) and (7)
of the Act, as amended. Further, with due regard
for presently applicable jurisdictional standards, I
find assertion of the Board's jurisdiction in this case
warranted and necessary to effectuate statutory ob-
jectives.
H. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, District
Lodge 94 and its affiliated Local Lodge 2327,
jointly designated as complainant Union within this
Decision, is a labor organization within the meaning
of Section 2(5) of the Act, as amended, which ad-
mits certain of Respondent's employees to member-
ship.
III. THE UNFAIR LABOR PRACTICES
A. Issues
Within his complaint, General Counsel has
charged Respondent with Section 8(a)(1) and (3)
violations, bottomed upon the firm's discharge and
subsequent failure or refusal to reinstate three
salesmen-Robert A. Ruffino, Alexander Ross, and
Sol S. Steelman-because they had joined or
assisted complainant Union herein. The complaint
further charges Respondent with certain specified
conduct reasonably calculated to interfere with,
restrain, and coerce its salesmen with respect to
their exercise of rights statutorily guaranteed.
Respondent generally denies any responsibility for
statements or conduct claimed to constitute Section
8(a)(1) violations; regarding the discharges,
Respondent contends that Ruffino, Ross, and Steel-
man were terminated, separately, for good cause.
General Counsel counters with a contention that
Respondent's presently proffered reasons for ter-
minating the salesmen designated must be con-
sidered, really, pretextual.
B. Facts
1. Background
a. Respondent's business
Respondent, functioning in corporate form,
maintains a Ford dealership in Sepulveda, Califor-
nia; this place name designates a San Fernando
Valley community, within the northwest portion of
the Los Angeles metropolitan district. There,
Respondent engages in the retail sale of new and
used motor cars and trucks. Respondent handles
comparatively few "fleet" sales . With respect to
"single " car sales within the Los Angeles
metropolitan district, the firm stands second among
Ford dealerships in sales volume . Some 5,000 plus
cars, new and used, are normally sold yearly.
Respondent dealership employs some 170 peo-
ple; this figure compasses 135 concerned with new-
and used -car sales and service. (Respondent
likewise maintains a restaurant , located on its busi-
ness premises , which employs some 35 persons.)
During the 6-month period with which this case is
concerned, Respondent maintained a 28- to 33-
man sales force.
Of this number, some 20 to 23 handled new-car
sales primarily; there were 8 to 10 men who served,
principally, within Respondent's used-car depart-
ment.
Throughout the period with which this case is
concerned, Herbert F. Boeckmann III was Respon-
dent's president and sole stockholder; he devoted,
and continues to devote, full time to Respondent's
management . Joseph Castagna functioned
throughout the same period-and still functions-
as Respondent's general sales manager. Under
Castagna, Richard Sweet and John Johnson
presently serve as new-car sales managers for
Respondent dealership. (During early 1968, when
the developments with which this case is concerned
began, John Billingsley had been one of Respon-
dent's new-car sales managers. Later during the
year-so the record shows-he ceased work under
circumstances not herein material. Following a
period of service with another Ford dealership
Billingsley was rehired by Respondent; when this
case was heard, he was a new-car salesman.)
Respondent currently employs two more sales
managers , Vito G. Congelos and Joe Boggio,
responsible for used-car sales, with Congelos
designated as the dealership's man in charge. These
men-together with two men responsible for selling
insurance on motor cars sold, plus the dealership's
leasing manager-constitute Respondent's sales
management team. Their several roles, with respect
to matters with which this case is directly con-
cerned, will be discussed hereinafter.
b. The union campaign begins
In February 1968, complainant Union com-
menced a campaign to organize Los Angeles
metropolitan area automobile salesmen. A citywide
GALPIN MOTORS, INC. 449
campaign meeting was held at Los Angeles' Shrine
Auditorium. Six of Respondent's salesmen, plus
General Sales Manager Castagna, attended.
Shortly thereafter, during Respondent's next
regularly scheduled salesmen 's meeting , President
Boeckmann discussed complainant Union's cam-
paign. The dealership's salesmen were told, sub-
stantially, that their right to attend complainant
Union's meetings and to make their own decision
with respect to union membership would be
respected. Boeckmann, however, declared that
Respondent's salesmen , within his view, did not
need unionization ; he suggested, therefore, that
they should adopt a so-called "wait- and-see"
posture regarding the desirability of union member-
ship.
During the February sales meeting , Frank Colet-
to, testimonially described for the present record as
then a sales manager with Respondent dealership,
remarked that "back in 1960," while in Respon-
dent's hire, he had participated in some union ac-
tivity, not specified, but that he had become "dis-
enchanted" with unionization. (With respect to
Coletto's remark, the record reveals testimonial
conflict. Sol Steelman, herein one of General Coun-
sel's three claimed discriminatees, proffered a
recollection that Coletto said he had been
discharged by Respondent's management "back in
1960" because he had taken part in some union ac-
tivity, and that he (Coletto) did not recommend
such conduct. However, Christian Preussner (Chris
Price), likewise a former salesman and General
Counsel's next witness, could recall no such "ex-
plicit" statement by Respondent's purported sales
manager. With matters in this posture, the record
presents a minor credibility problem-which, how-
ever, may be considered representative of similar
problems presented throughout the present tran-
script. Steelman testified forthrightly. His purpor-
tedly straightforward recollection regarding Colet-
to's remark, however, must be considered, within
my view, reasonably subject to discount. Since
General Counsel presently proffers him as vic-
timized by discrimination, his technically "adverse"
posture, and presumptive bias, vis-a-vis Respondent
herein cannot be disregarded; his witness chair
memory-more than 1 year after Respondent's
February sales meeting-could, conceivably, have
been colored by some post hoc rationalization. Such
a possibility, with respect to Steelman's testimony,
however-without more-does not dictate cre-
dence, necessarily, for Price's variant recollection.
The latter's testimonial recital with respect to
Coletto's purported comment-though less dra-
matic than Steelman's version-likewise lacked
something. He was generally cautious, sometimes
hesitant. Though presumably disinterested-so far
as this case was concerned-he seemed, generally,
ready to proffer tailored testimony, patently
refraining from formulations which might suggest
personal hostility or resentment directed toward
Respondent's management. Nevertheless, despite
some suspicion that Price may have been trying to
water down his testimony, reflection has persuaded
me-following a review of both versions given
herein regarding Coletto's remark-that his
proffered recollection with respect thereto merits
Board credence. My determination rests primarily
on considerations of probability. Within my view,
the likelihood that a presumptive "sales manager"
with Respondent dealership would have spoken as
freely and forcefully as Steelman's testimony sug-
gests-with Boeckmann present-must be con-
sidered remote.) Nothing further of significance,
with respect to Respondent's sales meeting, has
been reported. So far as the record shows, none of
Respondent's salesmen, during this February 1968
period, became union members.
Complainant Union's citywide organizational
campaign, however, lay more or less dormant
thereafter. No meetings were called for several
months.
c. Subsequent developments
In April 1968, General Sales Manager Castagna
hired Robert Ruffino and Alexander Ross for ser-
vice as new-car salesmen. Both men, when hired,
held complainant union membership; they had
joined while employed elsewhere, following the
February citywide union meeting previously noted.
Nothing in the present record however, would war-
rant a determination that their union membership
status was known to Respondent's management
representatives. (Ruffino, with whom Castagna had
worked at various times throughout a 20-year
period, was hired-so Castagna's testimony
shows-with the concurrence of Billingsley, then
Respondent's new-car sales manager and Castag-
na's direct subordinate; Billingsley had, himself,
known Ruffino for some 8 years. Ross, whom
Castagna hired following a consultation with Con-
gelos, had likewise been recommended-this time
by Johnson, then a used-car sales manager with
Respondent dealership. Johnson had previously
known and worked with Ross for some 8 months;
Respondent's general sales manager was told -so
Johnson's testimony shows-that he thought Ross'
personality would "fit" the dealership's store, that
he (Ross) was a gentleman, and that he would "fit
in as a good salesman" with the firm.) Some time
during late May or early June, Ruffino was trans-
ferred, temporarily, to Respondent's used-car sales
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
staff. Shortly thereafter-for reasons which will be
discussed subsequently-Ross was likewise reas-
signed to used -car sales. After 4 weeks , Ruffino was
transferred back to new -car sales; Ross, however,
remained a used -car salesman.
No determination would be warranted, on the
present record , that Ross' union sympathies were
made manifest during this period . The transcript,
however , will support a factual conclusion-within
my view- that Ruffino's union sentiments did
become known.
While a witness , Ruffino described a June con-
versation with Billingsley regarding Respondent's
business , which " kind of drifted " into a discussion
of unionization . According to Respondent 's former
salesman , Billingsley declared , inter alia , that he
had "heard " Ruffino might be "in" the complai-
nant Union herein ; Respondent 's new-car sales
manager-so Ruffino testified-then commented
that if anyone could become involved Ruffino
could , and that if he [Billingsley ] ever heard such
news , he would personally "blow" the salesman out
of Respondent 's place of business . Billingsley, sum-
moned as Respondent 's witness-when finally
queried directly regarding this testimony -did not
deny a conversation with Ruffino during which
unionization was mentioned . With respect to his
contribution , however , Respondent 's present
salesman and former new -car sales manager
testified as follows:
... the only thing I told Bob , I said , " Bob, I
have known that you are a [obscenity signify-
ing a person with a propensity for making him-
self obnoxious ]" and I said " I don't want to
have any of this in this organization . [All] I
want you to do is to sell automobiles and stay
away from the other salesmen and stop gather-
ing in groups and just leave the other salesmen
alone" ... .
Before proffering this testimony, however , Billing-
sley had been questioned by Respondent 's counsel
regarding a later conversation which he purportedly
had with Ruffino , following complainant Union's
charge herein. In this connection , Billingsley had
significantly blackguarded Respondent 's former
salesman , reporting that during the prehearing con-
versation in question-which had purportedly taken
place before Billingsley's recent resumption of sales
work with Respondent dealership-he had been
promised a little "green stuff" should he provide
helpful testimonial recollections. Summoned in
rebuttal , thereafter, Ruffino countered with
recriminatory testimony. Specifically, he declared
that , during two prior conversations , Billingsley had
initially described himself as gratified to learn that
Respondent 's course of conduct was being chal-
lenged; that he had promised help, should it be
requested; that he had thereupon volunteered infor-
mation regarding a presumably significant admis-
sion which General Sales Manager Castagna had
purportedly made, during a telephone conversation,
regarding Ruffino's discharge; but that he had,
despite all this, rejected a request to testify regard-
ing Castagna's statement for fear of being
blackballed. Subsequently, so Ruffino testified,
Billingsley had reversed his position and had
queried "what it would be worth" should he pro-
vide a tape recording of Castagna's purported con-
versational concession or favorable testimony with
respect thereto. These tentative soundings, suggest-
ing a willingness to be suborned, were-so Ruffino
testified-rejected.
Neither Billingsley's denunciatory testimony nor
Ruffino's recrimination-with regard to their recent
conversation or conversations-struck me persua-
sively. Respondent's witness has proffered a recital
in that connection which-when studied closely-
stands revealed as bottomed substantially on sur-
mise . And Ruffino's testimonial counterthrust cer-
tainly reflects a lack of logical consistency and files
in the face of the probabilities. (Billingsley's pur-
ported quotation of Ruffino's presumptive sug-
gestion surely must be considered less than clear.
He reported a purported statement by Ruffino
which could reasonably have been construed mere-
ly as the latter's candid observation that Billing-
sley's favorable testimony "could be worth a little
green stuff" so far as he [Ruffino] was concerned;
Billingsley, however, volunteered a witness chair
"guess" that Ruffino, rather, had meant to suggest
that he [Billingsley] would get some money. Such
testimony-clearly subjective in character-would
hardly warrant a clear-cut determination that
Respondent's former salesman was trying to suborn
perjury. And Ruffino's somewhat disjointed rebut-
tal testimony, considered in totality, struck me as
motivated primarily by pique over Billingsley's in-
vidious suggestion. Within my view, Respondent's
former salesman was merely trying to turn the ta-
bles.) Their divergent recollections regarding their
June conversation now in question, therefore, must
be considered and reviewed directly. And-with
due regard for the logic of probability-I find
myself constrained to conclude that Billingsley's
testimony probably reflects their conversation more
precisely. During June 1968, complainant Union's
campaign had become superficially quiescent;
Respondent's management, therefore, presumably
would have no reason to feel threatened. Under
such circumstances, Billingsley might reasonably
have considered it necessary or proper to suggest
that Ruffino refrain from open discussions related
GALPIN MOTORS, INC. 451
to unionization during working hours. I consider it
highly unlikely , however , that he would have con-
sidered it likewise necessary to buttress any such
suggestion with a blatant threat of possible
discharge . Therefore , I conclude-consistently with
Billingsley 's testimony-that Ruffino was not
threatened . Nevertheless , determination seems
clearly warranted-bottomed upon the generalized
warning which I find Respondent 's salesman did
receive- that Respondent 's management was, to
say the least , cognizant of his union sympathies. I so
find.
2. Interference , restraint , and coercion
a. Complainant Union's renewed campaign
After a seeming 8 -month lull, complainant
Union 's citywide organizational campaign was reac-
tivated ; plans were made for a second meeting,
scheduled for November 13 at Los Angeles' Em-
bassy Auditorium at 10 p.m
Complainant Union 's October 31 news bulletin
described the scheduled conclave as Lodge 2327's
first regular meeting for members in good standing
only. Nevertheless, licensed automobile salesmen
throughout the Los Angeles basin were notified
that they could attend , contingent on their signing a
membership application and paying complainant
Union 's then current $ 10 organizing fee. Copies of
the bulletin in question , plus a brochure entitled "It
Is Your Right As An American To Join The IAM,"
were mailed some time during November 's first
week . Several of Respondent 's salesmen-so the
record shows-received their copies by November
7 specifically.
b. Respondent's reaction
On November 8, while Ruffino and Castagna
were in consultation within the general sales
manager 's office , Congelos entered, carrying com-
plainant Union's news bulletin and brochure. Wav-
ing the documents , he exclaimed , " Look what I
received in the mail . I suppose they don't know I
am a manager , and this is a joke on them." Then-
noting Ruffino 's presence-he chivvied the latter,
so I find , with a rhetorical declaration , " I suppose
you're in the union , too" but then said nothing
further . Ruffino left Castagna 's office . Shortly
thereafter-so I find- the dealership 's used-car
manager likewise came out, still carrying complai-
nant Union 's bulletin and pamphlet . Directing him-
self specifically to Ruffino on Respondent's
showroom floor, Congelos remarked , laughingly,
that he supposed the latter was "the union's or-
ganizer" within Respondent dealership . Ruffino
thereupon suggested that he consider complainant
Union 's material seriously , and noted that he could
"write down " whatever Congelos might say.
Respondent 's used -car manager , however , merely
laughed and departed . ( These factual findings
derive directly from Ruffino's testimony , which I
credit in this connection . Congelos denied making
the comments noted . His denials however , within
my view, merit rejection . Throughout the present
record , Congelos stands revealed as frequently
given to barbed comment and rough humor; his
witness chair demeanor , within my judgment, pro-
vides more than sufficient justification for such
characterizations . Thus, Ruffino's testimony-that
Congelos greeted him , twice, with challenging rail-
lery-struck me persuasively . True, within this
Decision , the salesman 's testimonial recital regard-
ing his purported conversations with Billingsley has
been rejected . My credibility resolution with
respect to that testimony , however, does not derive
from any conclusion that Ruffino's purported recol-
lections were generally unreliable ; I concluded,
merely , that-regarding the particular matters then
in question-his recollection had been colored by
rationalization. Well-settled decisional doctrine
teaches, clearly , that triers of fact may believe
some, though not all, of a witness' testimony. Com-
pare N.L.R.B. v. Universal Camera Corporation,
179 F.2d 749, 754 (C .A. 2) in this connection.)
Shortly thereafter, Ruffino sought Castagna's
concurrence regarding a prepared appraisal with
respect to a possible trade - in vehicle . Castagna, so I
find, thereupon stated , " You had better have this
just right if you 're a member of the union now. I
want everything just right ." The proffered appraisal
was, however, approved . ( Castagna denied making
the remark noted ; he testified that he does "per se"
do appraisals. He conceded , however , that on two
of three successive weekends ( Friday , Saturday,
and Sunday ) he regularly relieves one or the other
of Respondent 's two new -car sales managers, and
that-while functioning in their stead-he does rou-
tinely review new-car "deals" which may involve
prepared appraisals with regard to possible trade-in
vehicles. The record otherwise shows that Castagna
was working , pursuant to this schedule , during the
weekend of November 8, 9, and 10. His denial re-
garding the remark now under consideration has
not been credited .) Later that same day-with
castagna, Ruffino, and Congelos, plus another
salesman , once more present in Castagna 's office-
the dealership 's used-car manager , so I find,
resumed his purportedly bantering tactics. Ad-
dressing Ruffino , Congelos reiterated , " I see this
Union is getting off the ground , and I suppose you
427-258 O-LT - 74 - 30
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are organizer here." Ruffino, this time, vouchsafed
a somewhat chaffy reply; he pleaded the Fifth
Amendment and refused comment. Castagna, how-
ever-so Ruffino's credible testimony shows-then
interjected, "If I were you I would shut up, too."
Their conversation then turned to company busi-
ness.
On November 13, the date of complainant
Union's scheduled Embassy Auditorium meeting,
Ross was working Respondent's early sales shift.
Congelos asked him-so I find-whether he was
going to complainant Union's conclave; Ross, how-
ever, proffered no reply. Later, that same day, Con-
gelos summoned Steelman to his office; the latter
was requested to notify his fellow salesman that
Congelos was calling a used-car salesmen's meeting
for 10 o'clock that night. Steelman asked whether
Respondent's used-car manager was "kidding" with
his meeting call; Congelos declared, however, that
he was serious. (Steelman's testimony-which has
not been contradicted in this respect-warrants a
determination that four or five of Respondent's
used-car salesmen were present, within hearing
distance, during this exchange. I so find.) Steelman,
then, reminded Congelos that complainant Union's
meeting was scheduled for the same time; the
latter, however, replied that, "I know it, but we are
going to have the meeting anyway." Steelman, with
support from some of his fellow salesmen, then sug-
gested that their sales meeting be held forthwith, or
possibly by 8 o'clock that night. Congelos, how-
ever, refused to considered these substitute sug-
gestions.
Some time later , Respondent 's general sales
manager-who had heard "rumors" that Congelos
was scheduling a sales meeting-visited Respon-
dent's used-car lot; he commented that he did not
know whether Congelos was joking or serious, but
that, if Respondent 's salesmen were union mem-
bers, they had a right to attend their union meeting.
Castagna thereupon advised Respondent's used-car
manager-so his testimony , which I credit in this
connection, shows-that, "If you are serious and I
don't know, why don't you schedule it [the sales
meeting] for another time." (My factual determina-
tion, regarding this development, rests on Castag-
na's testimony . The record does reflect Steelman's
divergent recital that Castagna was told 80 percent
of Respondent's salesmen were already union mem-
bers, and that he then told Congelos, "Oh, let them
go. We will get rid of them later." And Steelman
was-within my view-generally a reliable witness;
his testimony was offered forthrightly, precisely,
and, so far as I could tell, derived from his best
recollection . However, his recital regarding Castag-
na's threatening comment to Congelos, noted,
struck me as reflective of hyperbole, derived from
afterthought presumably. Castagna had no reason,
then, to consider complainant Union's renewed
campaign a source of concern for Respondent
dealership; Steelman 's testimony, therefore, that
Respondent 's general sales manager coupled his
suggestion to Congelos regarding the sales meeting
with a reference to possible future discharges,
under the circumstances , suggests a strained reac-
tion to complainant Union's campaign which I
would find considerably less than likely.) While a
witness-following Castagna's testimony-the
dealership's used-car manager purportedly could
not recall whether he had been directed to cancel
his proposed November 13 sales meeting. He
declared, rather, that his direction to Steelman had
really been given in jest; that he had merely been
trying to "shake up the troops" thereby; and that
he had never really meant to conduct such a meet-
ing. There can be no doubt, however, that Steel-
man, initially, took him seriously. Further, the
record clearly warrants a determination that
Respondent's general sales manager considered the
matter sufficiently serious to countermand Con-
gelos' putative directive, specifically.
c. Complainant Union's meeting
Complainant Union 's November 13 meeting was
held pursuant to schedule . Some six or seven of
Respondent dealership 's salesmen were there. They
may have been union members ; the record shows
that, lacking prior membership , they would have
had to sign membership application cards, and that
they would have had to pay a designated "organiza-
tional " fee to procure admission . ( Ross testified
herein-credibly and without contradiction-that
he saw Respondent 's salesman , Jerry Schnoeblen,
present during complainant Union's meeting taking
notes. Schnoeblen however-designated for the
present record, without challenge , as one of
Respondent 's former new -car sales managers-was
not summoned herein for testimony . Respondent
has proffered no contradiction whatsoever regard-
ing Ross ' recital in this connection .) During the
meeting , there were nominations from the floor for
a bylaws committee , responsible for drafting Lodge
2327 's bylaws. Ross and Ruffino nominated each
other; Ross prefaced his nomination of, Ruffino, so
the record shows , with a lengthy speech.
d. Subsequent developments
The following day-before, during , and following
Respondent's regularly scheduled sales meeting-
the developments of the previous night seem to
GALPIN MOTORS, INC.
have been a general subject of conversation
between Respondent 's salesmen and management
representatives . First, early that morning , so Ross'
credible , undenied testimony shows , the latter ob-
served Salesman Schnoeblen , noted as having been
present at complainant Union's meeting , conferring
at length with Castagna and Congelos ; significantly,
however, he (Schnoeblen ) was not, thereafter,
present doing Respondent 's general sales meeting.
And Castagna's opening sales meeting remark, so
the record shows , was, "Well, fellows, I guess you
like meetings . You had one last night and you have
one this morning ." Later, during their discussion,
someone asked whether Respondent 's salesmen
would get Thanksgiving Day off; Castagna, so I
find, commented , "Well, when the union comes in
you won't have to worry about it." And, when the
sales meeting concluded , Congelos-presumably
still bemused-commented to Steelman that, "I
can't believe it. Five of my men went to the meet-
ing. I can't understand how they could do that to
me." The record does not reveal Steelman 's reply.
Congelos, however, further revealed his sense of
perturbation . During a conversation later that day
with Ruffino, he commented that he had "heard"
Ruffino was a union officer now; the salesman, so
his testimony shows, greeted this comment with a
shrug . And still later , during the day, Congelos was
seen wearing one of conplainant Union's buttons,
which had been distributed the night before. (While
a witness , Congelos did concede that he had, in-
deed, procured a union button that very day from
Schnoeblen, and that he had, for a time thereafter,
worn it on his lapel.) Seeing Ross, Congelos gibed,
"Ross, look at my union button. Where's yours?"
When Ross replied that his was larger , Congelos
declared, " I am not even going to nominate you."
The record reflects no rejoiner by Respondent's
salesman.
Within a few days thereafter-during a social
"gathering" at Howard Johnson's restaurant near
Respondent dealership, attended by President
Boeckmann , Castagna, Congelos, and Salesmen
Chris Price, Dave Reza , and Sol Season , complai-
nant Union 's meeting was still one topic of conver-
sation . Respondent' s used -car manager-so Price
credibly testified-recited the names of various
salesmen who had attended complainant Union's
meeting . During a somewhat disconnected discus-
sion of complainant Union's meeting and unionism
generally , -which followed, President Boeckmann
mentioned that both Ross and Ruffino had been
nominated for union offices; then he queried the
salesmen present as to how they would like to have
Ross represent them in negotiations with him. This
query, which , Boeckmann clearly conceived as rhe-
453
torical merely , was-so I find-reasonably calcu-
lated to suggest that , within Boeckmann 's view and
possibly that of his listeners , Ross would probably
prove a poor negotiator.
3. Discriminatory discharges
a. The discharge of Ruffino
(1) Conflicts in testimony
On Sunday , November 17, just 4 days after com-
plainant Union 's meeting , Ruffino was discharged
by Respondent 's general sales manager , personally.
Their respective testimonial recollections with re-
gard to this development-though mutually cor-
roborative generally-differed in detail . Since these
differences in detail could , conceivably , be crucial,
the testimonial recitals of both Castagna and Ruf-
fino have been reviewed carefully and scrutinized
closely.
On November 17, Ruffino was, presumably,
working Respondent's late shift. He testified that
-having just returned from "lunch" about 5 o'clock
- he was standing in Respondent ' s showroom,
together with Salesman Chris Price , New-Car Sales
Manager Johnson, and one Nick Rosenthal, fleet
manager for another Ford dealership , when Castag-
na approached and requested him (Ruffino) to
produce his salesman 's "follow-up" records for
review . (The record reflects some confusion with
regard to those present. For example , Ruffino and
Castagna designated Johnson as physically present
on Respondent's sales floor ; Johnson described
himself as seated within his "open " office nearby.
Ruffino designated Rosenthal as standing together
with Price and himself when Castagna approached;
Castagna , however , described Rosenthal as merely
a personal visitor , who happened to become a
member of the group, and thus happened to over-
hear the conversation now under consideration,
while in his (Castagna's) company. Further, coun-
sel for Respondent presently proffers testimony re-
garding this Ruffino -Castagna conversation through
Salesman Steve Wilson , whom no one else recalls
as having been present. These testimonial discre-
pancies regarding those present , per se, raise no sig-
nificant credibility questions ; they do suggest, how-
ever, that-for both Ruffino and Castagna particu-
larly-the passage of time may have dimmed recol-
lection and fostered rationalization. The divergent
testimony regarding their conversation's substance
and subsequent developments has, therefore, been
carefully reviewed.) According to Ruffino, Castag-
na looked a little bitter , while declaring that he
wished to see Ruffino 's "follow -up" records then
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and there . When the salesman asked Castagna,
then , what "follow-up" records he wished to see,
Respondent 's sales manager purportedly replied,
testily , " Don't get smart with me or you will be
working down at Ray Bros . Ford tomorrow." Ruf-
fino further testified that : he thereupon repeated
his query regarding what Castagna wished to
review ; he was told merely to produce his "follow-
up" records ; he went back to his desk and picked
up the first thing he could find-which happened to
be his so-called "appraisal " book within which data
was recorded regarding the trade -in cars which his
most recent customer contacts had proffered-for
submission to Respondent 's general sales manager;
but Castagna promptly returned the book , declar-
ing it was not a complete " follow -up" system. Ac-
cording to Respondent 's salesman , Castagna did
not further explain his book 's rejection. (The
present record clearly warrants a determination
that Respondent 's management has, for some years,
strongly pressed its salesmen-particularly new-car
salesmen-to maintain and rely on "follow-up"
records . Specifically , Respondent 's salesmen have
been requested to prepare and maintain some sort
of notation system or record covering prospective
car buyers , possible first-time customer contacts,
and possible "repeat " customers . With respect to
such conceivable sales prospects , Respondent's
salesmen have been requested to note names; ad-
dresses ; telephone numbers ; the new -car model
line, body style , and color regarding which some in-
terest may have been manifested by the person
designated ; the make , model , and model year of
their possible future trade -in cars; plus other rele-
vant data which might bear on their status as
prospective customers . Periodically , Respondent's
management-during regular weekly sales
meetings-has stressed the value of such detailed
notes; dealership salesmen have been told, re-
peatedly , that such records, when properly main-
tained , constitute a valuable customer prospect file,
which should be "worked " through repeated con-
tacts , looking toward possible future sales. Thus,
when Castagna requested Ruffino to produce his
"follow-up" records, he was really requesting
Respondent 's salesman to produce his file or bun-
dle of notes regarding prospective customers.) This
rejection , according to Ruffino 's recollection, ter-
minated their conversation for the moment ; Ruffino
testified that he left Castagna 's office without rais-
ing any further questions.
Regarding this particular verbal confrontation,
Respondent 's general sales manager proffered some
significantly different recollections . Thus, he
testified that : he requested Ruffino to produce his
"follow -up" records for review ; Ruffino , instead,
replied , "What 's that?" suggesting a complete lack
of comprehension with regard to Castagna 's mean-
ing; the salesman was then told Castagna wished
him to produce those records which Respondent's
management usually talked about in sales meetings;
he was requested once more to bring such records,
plus his owner 's file, into Castagna 's office; he
thereupon repeated his query , "What 's that?" very
sarcastically ; Ruffino was , again , requested merely
to produce his records promptly ; shortly thereafter,
Respondent 's salesman produced his appraisal
book; and, when asked whether this was his sole
"follow -up" record , he replied , "I sell everyone I
talk to . I really don 't need a follow-up record. I
have thrown all my records away ." While a witness,
Castagna commented-by way of explanation-that
Ruffino 's so-called appraisal book could not really
facilitate future sales "follow -up" contacts, since
the data therein merely pertained to possible future
trade -in cars , without any references to new-car
models which particular prospective traders might
wish to purchase . Continuing , Castagna testified
that : Ruffino was asked whether this was all he had;
and the salesman then stated the book was all he
had readily available , but that he had his owner's
file at home . Respondent 's general sales manager-
according to his testimony-declared , "That is a
heck of a place for an owner 's file to be " with the
dealership 's current business so slow. He noted
that-though Ruffino might be "hitting a little
good " currently-he had managed no more than 2
good months since his hire . Ruffino was told-so
Castagna testified-that his "follow -up" records
could not be considered sufficient ; he was further
criticized for reporting that he had thrown away
such records.
With respect to subsequent developments, the
record reflects further divergencies . Returning to
Ruffino , Respondent 's salesman testified that: he
returned to Castagna 's office some 10 to 15
minutes later ; he asked Castagna whether Respon-
dent 's management was installing some new type of
"follow-up" program ; he further queried Respon-
dent's general sales manager regarding what "fol-
low-up" records he wanted , since he ( Ruffino) did
have some loose, noncollated "follow-up" notes
within his desk ; and he found Castagna very bitter,
and concluded that his currently maintained "fol-
low-up" records would not be considered satisfac-
tory . Therefore-so Ruffino testimonially
declared-he did not pursue the subject but, rather,
requested Castagna to say whether he was being
discharged . Castagna then replied-so the salesman
recalled-that he would have to let Ruffino go. Re-
garding the balance of their conversation , Respon-
dent's former salesman proffered the following
GALPIN MOTORS, INC. 455
recital : That he did mention his relevant records
and requested time to get them organized , but the
focus of conversation then shifted to Castagna's
decision regarding his termination ; that he (Ruf-
fino ) was "very upset" since he considered his sales
record for the current month , before November 17,
sufficiently good to suggest the possibility that he
could have qualified for Respondent 's monthly
sales prize ; that he pleaded for his job, therefore,
without success ; that Castagna then designated a
document lying on his desk , within which Respon-
dent 's entire new- and used -car sales force roster
was listed with 10 names circled , saying that he
(Castagna ) was being pressured to let these men
go; that Respondent 's general sales manager finally
suggested Ruffino could return in 2 weeks and
request his job back ; but that Respondent's
salesman described himself as not the type of per-
son who would plead for rehire , under such circum-
stances . Continuing , Ruffino testified , finally, that:
I said , " Let's face it , Chuck. Was it because I
was organizing the union here in Galpin
Ford?" In which he replied , "That is part of
it." ... I told Mr. Castagna that I was going to
go to the union because I felt he terminated me
because of union activities , and he said
something about the union giving him a little
bit of pressure . I said, "I don't know ." He said,
"Lots of luck ." We left in a friendly term with
ourselves shaking hands and him offering to
buy me lunch any time I came back.
Castagna 's purported recollection differed. With
respect to this portion of their conversation, first,
we may note that Respondent's general sales
manager did not recall a break during which Ruf-
fino left his presence . He testified , rather, that:
their single conversation continued ; Ruffino was
told he was being " let go" with a recommendation
that he seek work with some other dealership
where he might learn to keep and rely upon "fol-
low-up " records; Ruffino voiced surprise regarding
Castagna 's decision to dismiss him because of their
long friendship , he was told he was doing both him-
self and Respondent dealership an injustice because
of his failure to keep records and that he had made
Respondent 's general sales manager look ridiculous
through his "insubordination " displayed on
Respondent 's showroom floor ; and "Ruffino,
nevertheless, requested a chance to remain until
the current month 's end , since he felt confident
that he could qualify for that month 's sales prize;
but that his plea was rejected."
Castagna conceded that , during this conversa-
tion , there had been a sales force roster on his desk
with a number of names circled . He recalled mak-
ing a statement that he was " under the hammer"
since President Boeckmann had requested him to
talk to certain salesmen-designated within the
roster-whose record showed sales of 12 or fewer
cars during October , the previous month-for the
double purpose of determining why their sales were
down , and warning them that they might be subject
to termination thereafter should their sales produc-
tion continue low. (Ruffino was-so the record
shows-within the group of 10 men whose names
had been circled on the document in question,
Respondent 's sales summary record for October
1968.) Respondent 's general sales manager, how-
ever , denied making any direct declaration that he
was under pressure , currently , to terminate
designated salesmen. Then , with regard to Ruffino's
final remarks, Castagna ultimately testified as fol-
lows:
... and he said "we have been friends for a
long time , so just between you and me I have
an opportunity to go to work for the Union and
I am going to tell the Union you fired me for
Union activity and they will welcome me with
open arms " and I said "I don't follow you,
Bob, what do they mean they will welcome you
with open arms ." He said "they will." He said
"I can get a job with them and they will pay me
$250 a week plus expenses to go to the dif-
ferent dealers and try to organize salesmen." I
said that if this is what you want to do, go
ahead and do it.
Respondent 's general sales manager conceded a
query by Ruffino as to whether his union sym-
pathies had had "anything to do" with his termina-
tion. While a witness , however , Castagna denied
making any concession whatsoever in that regard.
He testified that Ruffino was , rather, told, "Bob, I
have known you for too long for something like
that to come in the way of friendship . You have
made me look like an ass in front of men out there
and then you come in with an appraisal book and
no type of follow-up at all , what the hell can I do. I
have to let you go ." Ruffino was further told
specifically- so Castagna testified-that his in-
volvement with complainant Union had nothing to
do with his discharge.
(2) Credibility resolutions
The respective testimonial recollections of Ruf-
fino and Respondent 's general sales manager-
which have just been summarized-present several
serious, direct conflicts which must be resolved.
This task, within the context of the present record,
may justifiably be described as fraught with con-
siderable difficulty.
Determinations with respect to credibility must
necessarily derive from a trier of facts considered
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
judgment with respect to more than one factor
presented by the relevant record. See Casa Grande
Cotton Oil Mill, 110 NLRB 1834, 1845-46, for a
general discussion. Still, with relevant and material
factors in mind-so far as some particular record
may reveal them-clear-cut dispositions with
respect to credibility problems can rarely be facile-
ly reached. However dispassionate triers of fact
may wish to be-no matter how carefully they may
try to discover what really happened-they cannot,
reasonably, consider themselves divinely ordained
or qualified to pronounce final truths. Their deter-
minations therefore-so my late colleague, Trial
Examiner Leedom, once noted-can merely "stand
in" for the facts. Such being the case, reasonable
men may frequently differ, both with regard to par-
ticular credibility resolutions, and with respect to
required factual determinations, premised upon
conclusions regarding where the testimonial pre-
ponderance lies. Triers of fact, therefore, can but
use their best judgment.
The present record, considered in totality, con-
strains me to conclude-somewhat diffidently, per-
haps, but with requisite finality, nevertheless-that
both Respondent's former salesman and Castagna
possess no more than partial recollections,
presently, regarding the specific conversational
gambits which preceded Ruffino's discharge. With
respect to both men, further, I find myself per-
suaded that subconscious rationalization may well
have colored memory.
Necessarily, therefore, the record within my view
calls for factual determinations based, not on pin-
pointed testimony which one particular witness,
deemed generally credible, may have proffered, but
on some reasonable synthesis, derived from the
complete testimonial record, with due regard for
the natural logic of probability. Cf. Phaostron In-
strument and Electronic Company, 146 NLRB 996,
enfd. 344 F.2d 855 (C.A. 9); cf. Southeastern
Motor Truck Lines, 113 NLRB 1122, 1124-27, cit-
ing N.L.R.B. v. Universal Camera Corporation, 179
F.2d 749 (C.A. 2). My determinations, herein, have
been derived from such a synthesis; whenever
necessary, however, reasons for particular factual
conclusions will be noted.
First: Was the salesman's initial response-when
confronted with Castagna's request that he produce
his "follow-up" records for review-really challeng-
ing and sarcastic? With due regard for the record,
this trier of fact remains persuaded that such a
characterization would reflect hyperbole. True,
Ruffino's testimony with respect thereto does sug-
gest that he may not have taken Castagna's first
request seriously. The purportedly responsive query
which his particular testimony reveals, "What fol-
low-up, Chuck?" may well have been proffered
with a somewhat nonchalant, flippant, or
lighthearted manner-perhaps, even, suffused with
raillery. I am satisfied, however, that Ruffino was
neither deliberately sarcastic (in the sense of being
cuttingly hostile or contemptuous) nor defiant. Nor
can I conclude that his queries were consciously
calculated to convey some completely "pretended"
lack of comprehension, with regard to Castagna's
request; he was not, within my view, being
deliberately refractory. (The record clearly shows
that Respondent's management had, throughout
Ruffino's period of service, repeatedly stressed the
desirability of maintaining so-called "follow-up"
records, current owner files, and prospect files-
particularly for new-car salesmen. And Respon-
dent's defensive presentation, which has not been
challenged in this connection, further warrants a
determination that-for at least I week, possibly
longer, before Ruffino was requested to produce his
records-the dealership's general sales manager
had been calling on various salesmen to produce
their personal records for review, following a
request from President Boeckmann that Castagna
check the performance of Respondent's less
productive sales personnel. Within such a context,
Castagna's testimonial profession of belief that Ruf-
fino had really pretended lack of comprehension-
when confronted with a demand for "follow-up"
records-carries no present persuasion. Such a
pretension would have been both defiant and futile.
So far as the record reveals, however, Ruffino had
been given no cause, real or presumptive, for defi-
ance manifested through such pretence. Further,
his generally "correct" restrained demeanor-both
while testifying before me and while listening to
others testify-would hardly warrant a conclusion
that he possesses temperament so volatile that he
would, willy-nilly, have proffered a futile and defi-
ant reply when confronted with Castagna's request.
With due regard for the record, considered in
totality, I am satisfied, shortly, that he would not
have deliberately "baited" the dealership 's general
sales manager gratuitously . Castagna's presumptive
conclusion, that he did so, must be rejected.)
Within my view, therefore, Castagna's reaction,
when he was confronted with Ruffino's clearly
"chaffy" response, really reflected hypersensitivity.
There can be no doubt that Respondent' s general
sales manager did construe Ruffino's deportment
critically; I so find. Further, however, I consider a
determination warranted that Castagna's manifest
resentment represented something more than a
reasonably justified response. (This, despite Chris
Price's witness chair concession that, during a sub-
sequent conversation with Ruffino in Castagna's
GALPIN MOTORS, INC.
presence, he (Price) had declared his personal view
that the salesman's conduct had left Castagna with
no choice.) The real significance of the sales
manager's reaction will be considered,. further,
within this Decision.
Second: Did Ruffino subsequently display a
disrespectful nonchalance when Castagna told him
that his trade-in car appraisal book could not be
considered a proper "follow-up" record? The
present record, certainly, would warrant a conclu-
sion that Respondent's salesman did not really
maintain a well-organized prospect file, or readily
usable records; clearly, Castagna's request that he
produced such materials, forthwith, found him non-
plussed. Under such circumstances, Ruffino's
testimony-that he merely seized the "first thing"
he could find; that he presented his appraisal book
to Respondent's sales manager; and that he then
left without a reply when the latter rejected his
presentation-rings true. Castagna's witness chair
suggestion that Ruffino promptly disclaimed any
need for "follow-up" records-declaring, further,
that he had thrown his records away-merits rejec-
tion within my view. Respondent's salesman did not
strike me as disposed to reckless bravado; con-
fronted with a recital, therefore, which substantially
suggests that he countered Castagna's request with
responses calculated merely to exacerbate their
confrontion, gratuitously, I must reject such a possi-
bility as remote. Further, note should be taken that
Castagna's testimony-with respect thereto-lacks
consistency. First, he purportedly recalled that Ruf-
fino promptly claimed to have discarded "all" his
relevant records; then, he testified that Ruffino
claimed to have some such records, particularly his
owner's file, at home. With matters in this posture,
I conclude that Castagna's testimonial recital-re-
garding this portion of the conversation now in
question-reflects memory colored by afterthought.
Third: Did Respondent's general sales manager
specify his reason or reasons for Ruffino's
discharge ? Substantially , Respondent's salesman
testified that-within a context of discussion re-
garding the dealership 's so-called "follow-up"
record program-he (Ruffino) first asked whether
he was being terminated , and that Respondent's
general sales manager-without further particu-
larizing his reasons-merely responded affirmative-
ly. Castagna 's testimony , considered in totality,
would warrant a determination , however, that he
(Respondent 's general sales manager ) broached the
subject of discharge ; that Ruffino, pleading for
reconsideration , mentioned their long friendship;
that he (Castagna ) then cited Ruffino's failure to
maintain proper "follow -up" records, while declar-
ing further that the salesman 's "insubordination"
which had been manifested on Respondent's
showroom floor had made him look ridiculous. Re-
457
garding this portion of their conversation , Castag-
na's testimony may, within my view, be credited.
Ruffino's suggestion that Respondent 's general
sales manager, during a relatively lengthy conversa-
tion , proffered no specific statements-calculated
to justify discharge-strikes me as hardly likely.
Their verbal confrontation , clearly, took some time.
Castagna was-so I have found-both professedly
resentful and distressed . Under such circumstances,
testimony which suggests that he failed to proffer
any specific reason for Ruffino's termination runs
counter to probability, within my view. Ruffino
did testify, finally, that Respondent's general
sales manager- during their conversation- said,
generally, that "the pressure was on him" to ter-
minate certain salesmen . Considered in context,
however , Castagna 's denial regarding this pur-
ported remark merits credence . ( Ruffino's
testimony , relative to this portion of their conversa-
tion , lacks certainty . First , he quoted himself as
querying Castagna with respect to whether he
(Respondent 's general sales manager ) was under
pressure . Then , he charged Castagna with the
quotation noted . Further, Ruffino pinpointed
Castagna 's purported comment as directed toward
10 specific salesmen , whose names had been cir-
cled on Respondent 's October sales department
roster . The record with regard to this document,
however , will support a determination, merely, that
Respondent 's general sales manager-pursuant to
President Boeckmann 's direction-had circled the
names of 10 salesmen with whom he proposed to
discuss poor sales performance . No conclusion
would be warranted , however , that he had been
directed to discharge them forthwith . Upon the
present record, I consider it less than likely that
Castagna would have , deliberately , misstated or
overstated his list's purpose .) Thus, any determina-
tion- conceivably derivable from Ruffino's
testimony- that Respondent 's general sales
manager merely said the salesman was being
discharged because he (Castagna ) was functioning
under "pressure" from unspecified sources must
be dismissed as lacking credible record support. I
so find.
Fourth: Did Castagna concede that Ruffino's
discharge was partially bottomed upon his par-
ticipation in complainant 's union organizational
campaign? The divergent testimony which Castagna
and Ruffino have proffered-regarding this portion
of their conversation-clearly presents a crucial
credibility question. With respect thereto, the
whole record-reviewed with due regard for those
further judgmental clues which a trier of fact's
direct observations may provide-persuades me
that Ruffino 's recital, in this connection , merits cre-
dence. I note, first, that Respondent 's general sales
manager-when he first learned that complainant
Union had scheduled a second citywide meeting-
had suggested to Ruffino that union members
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be required to have "everything just right"
when presenting trade - in deals for his concurrence.
Further , I note Castagna 's subsequent suggestion
that Ruffino would be well advised to maintain a
discreet silence regarding his union sympathies.
Such comments , though not necessarily probative
of strong antiunion bias, certainly provide some sup-
port for a determination that Castagna 's prior
knowledge regarding Ruffino 's union proclivities
may well have contributed to conditioning his reac-
tion during their final talk; I so find. True,
Respondent 's general sales manager-while con-
ceding that Ruffino had asked whether his union
sympathies had "anything to do " with his termina-
tion-did testify that Respondent's salesman was
told "something like that " would not have "come
in the way " of their long friendship . His further
testimony, however , regarding his purported coun-
terstatement- that , despite their long friendship,
his decision had been dictated merely by Ruffino's
failure to produce proper " follow-up" records, cou-
pled with conduct calculated to make him (Castag-
na) look ridiculous-fails to persuade . Upon the
entire record , plus observation of both witnesses, I
am satisfied that Respondent 's general sales
manager did-during the conversation now in
question-concede a further reason . ( I note, inter
alia , the fact that Castagna and Ruffino were, con-
cededly, friends of long standing; the fact that
Respondent 's management had never , previously,
defined precisely what files , notes, or other records
would be considered sufficient , and had never,
previously , dismissed a salesman for deficient or
poorly kept " follow -up" records ; and the fact that
no dealership salesman had even been warned,
previously , that deficiencies with respect to the
maintenance of such records would be considered a
ground for discharge . I further note the fact that
rough , heavy-handed banter seems to have been
tolerated within Respondent dealership ; plus my
finding , previously noted , that Ruffino 's showroom
floor reaction , with respect to which Castagna
professed resentment , could not reasonably have
been considered grossly demeaning or defiant. With
these factors in mind , I credit Ruffino 's testimony,
therefore , that Castagna-when queried directly-
realistically found himself constrained to justify
Ruffino's termination by conceding a further
motivation for his discharge decision .) Thus I
find-consistently with Ruffino 's testimony-that
Castagna, when confronted with a direct question,
did finally concede that Ruffino's participation in
complainant Union's campaign had partially
motivated his discharge decision. Castagna 's further
declarations , that Ruffino had-during their con-
versation-fully disclosed a plan to charge Respon-
dent with statutorily proscribed discrimination, fol-
lowing which he would "get a job " with complai-
nant union organizing salesmen , carries no persua-
sive thrust . I consider it rather less than likely that,
within a context of strained conversation culminat-
ing in discharge , Ruffino would have spoken thus
freely regarding his future plans; Castagna's pur-
ported recollection regarding this portion of their
conversation , therefore , struck me as mere em-
bellishment , proffered to provide some ver-
similitude for prior disclaimers.
(3) Subsequent developments
During Respondent 's regularly scheduled Mon-
day, November 18, sales meeting (held 1 day after
Ruffino 's discharge ), Castagna announced that he
had been constrained to release an employee,
whom he had known personally for 25 years,
because he didn 't have his sales "follow-up"
records when requested . Respondent 's general sales
manager then declared-so Steelman credibly
testified-that "If you guys want to be productive
professionals and want to be union men , you had
better get on the ball and act like professionals."
(Emphasis supplied .) Steelman 's testimony, with
respect to this remark , has not been denied.
b. The discharges of Ross and Steelman
(I) Respondent 's expansion program
For several months-between June and October
1968, specifically-the Respondent dealership's
sales force had been growing ; during the period in
question , it expanded from 28 to 33 salesmen.
Despite some significant turnover , Respondent's
new-car sales force rose from 20 to 23, while used-
car salesmen grew in number from 8 to 10. (During
October, particularly, Respondent hired or rehired
six salesmen : five were hired for new-car sales
and one for Respondent's used-car department.
Three salesmen , one for new cars and two for used
cars , left Respondent 's payroll, permanently or
temporarily .) During this period, further , Respon-
dent's management was planning a physical expan-
sion for its used-car department . The dealership's
used -car lot was being moved across the street, to a
new, larger location ; preparatory thereto, new of-
fice facilities for Respondent 's used-car sales staff
were being constructed . These facilities were
planned-so the record shows-to provide office
space for the department 's 2 managers , plus a sales
force which might number as many as 12 men.
Early in November , some 7 to 10 days before
complainant Union's campaign meeting , Respon-
GALPIN MOTORS, INC.
dent's used-car sales force was summoned to meet.
The purpose of their meeting-so Ross and Steel-
man credibly testified-was "to work out a new
work schedule and to choose offices" within
Respondent's new facility, which would be opening
shortly. The used-car salesman then in Respon-
dent's employ-with Ross and Steelman both in-
cluded-were assigned their future offices based on
seniority; no definitive work schedules were, how-
ever, then promulgated. During the meeting,
further, the subject of Respondent's desire to find
more salesmen was discussed. Congelos, so I find,
specifically asked those present whether they knew
any good used-car salesmen they could recom-
mend, who might wish to work for Respondent
dealership. (While a witness, Congelos did not
directly deny this recital. He did testify that
Respondent dealership was generally reputed to be
a good place to work; that he frequently received
volunteer employment applications from salesmen
working elsewhere; that such applications were nor-
mally retained, for some time, in his desk; and that
Respondent's management, therefore, never really
had to solicit applications. The record does show,
however, that-sometime following the specific
events with which this case is concerned-the
dealership did advertise for salesmen within a San
Fernando Valley newspaper. Upon this record, cou-
pled with my observation of Congelos' witness chair
demeanor previously noted, I conclude-con-
sistently with Ross' and Steelman's testimony-that
Respondent's used-car manager did solicit the
dealership's sales staff either to provide the names
of possible salesmen or to suggest that such
prospects file applications.) Further, during the
meeting salesman Glenn Williams, whose produc-
tion for several months had been relatively low,
asked Congelos whether Respondent was then con-
templating that "low men" would be terminated?
He was reassured-so I find-that low sales produc-
tion would not be the "only reason" determinative
of possible discharge. Williams could not-while a
witness-recall whether Congelos then "itemized"
some grounds which might trigger a termination;
Ross and Steelman, however, testified-credibly,
within my view-that he (Congelos) said low sales
producers would not be terminated unless they
were, concurrently, considered chargeable with
misconduct or some dishonest practice. The subject
does not appear to have been pursued.
(2) The sales managers ' meeting
Every Wednesday , throughout the period with
which this case is concerned , Respondent's
management " team " regularly met-with President
Boeckmann normally present-to discuss the
459
dealership's business problems; this group included
Respondent's several "department" heads. Follow-
ing this "general" conference, Respondent regu-
larly convened a sales managers ' meeting. This
group, previously noted within this Decision, com-
passed Castagna, Respondent's two new-car sales
managers , Congelos, the dealership's second used-
car manager, and two "insurance " men, plus the
dealership's leasing manager.
On Wednesday, November 20-so President
Boeckmann testified-these men met to discuss
Respondent's possible need to hire additional
salesmen to staff the firm's new, about-to-be-ac-
tivated, used-car lot. (According to Boeckmann,
Respondent's management was then considering
"going from eight to ten or whether we would need
twelve" salesmen to handle the dealership's pro-
jected sales volume. In fact, Respondent already
had-during the previous month-raised to 10 its
roster of used-car salesmen.) A discussion followed,
so Respondent's president testified, with respect to
various salesmen , their performance, capabilities,
and potential. The present record-which reflects
little more than some minor variations between the
testimony of Respondent's several witnesses, bot-
tomed upon their differences in recollection-will
warrant a determination that, while the "entire
sales force" was purportedly reviewed, most of the
sales managers' time was spent discussing five men.
(No more than three of these-Ross, Steelman, and
Williams-were used-car salesmen. The two others
principally discussed, Larry Weisberg and Robert
Cheney, were, so far as the record shows, new-car
salesmen.)
Weisberg's purportedly low sales production was
canvassed. New-Car Sales Manager Sweet
requested a chance to work "personally" with
Weisberg, however, since he felt the salesman had
"good" potential and had developed "outside"
sales; this request met with the group's concur-
rence . Cheney's manager-while conceding the
salesman 's relatively poor record due partially to
his diffidence in approaching " walk-in " showroom
visitors-requested a chance to work with him
because he felt that "over the long pull " Cheney
could develop into a good man; this request was
likewise granted . Williams, with a previously poor
sales record , was likewise discussed ; Boeckmann's
testimony suggests that his retention was con-
sidered , however, because he had previously been a
top salesman with other dealerships; because he
had been in management ; because he had business
knowledge; and because "we" felt that his potential
for the dealership could be "very" good. With
respect to Ross and Steelman, President
Boeckmann 's final testimony reads as follows:
In the discussion when we came to Mr. Ross'
name, Mr. Congelos recommended dismissal
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because he felt that Mr. Ross did not have the
ability to learn the automobile business suffi-
ciently, and properly carry on his duties as an
automobile salesman in our establishment. He
was backed up in his thinking and his remarks
by Joe [Boggio). Joe also felt-in fact voiced
the opinion that Mr. Ross required a tremen-
dous amount of personal attention. There were
similar comments by the other managers who
had been familiar with Mr . Ross in the
establishment so it was decided to terminate
Mr. Ross with all managers in concurrence.
When we went to Mr . Steelman , the discussion
came up then and I honestly don't recall
whether I brought it up initially or Mr. Con-
gelos did, but we had been having these com-
plaints again about him interfering and usurp-
ing the role of the managers in interfering in
the business of the salesmen. Mr. Steelman had
constantly questioned the manager's position.
In other words, anything the manager said was
questioned in a very negative way, apparently
on the basis that management had made an
error or that management was carrying on
their functions incorrectly. He was constantly
interfering with other salesmen in their duties,
complaining to them. He complained, from
what was told to me, regarding sales contests;
he complained regarding work shifts; he com-
plained regarding every aspect of the business
that he came into contact with, so the question
did come up then as to whether Mr. Steelman
should be terminated. The consensus of
opinion was .. backed up by many, many
managers ... actually it ended with all favoring
the dismissal of Mr. Steelman.
Respondent's monthly records of sales performance
reveal that two more salesmen-Welch (used cars),
and Zimmermann (new cars), specifically-showed
low sales performance records statistically com-
parable with those of Cheney and Williams. Welch,
with a 4-month average level of sales considerably
below Respondent's presently declared norm, had
previously been discharged on November 8 and
rehired November 18. The present record, how-
ever, gives no indication that the wisdom of his
rehire was canvassed during the sales managers'
conference now under consideration. Zimmer-
mann , with a 2-month record considerably below
Respondent's purported standard, likewise does not
appear to have been discussed.
(3) The discharge of Ross
Later on November 20-which happened to be
the day when Respondent's used-car department
was moved-Ross was summoned to Congelos' of-
fice; Castagna was there. Respondent's general
sales manager told Ross that his sales production
record was low, and that Respondent would have to
let him go. The salesman-stating that he was most
amazed, and that he did not think he had done too
badly-protested Respondent's decision. His
testimony, which I credit in this connection, reveals
that Castagna thereupon asked him how many sales
he (Ross) then had for the current month; Ross ex-
pressed the belief that he had "about five or six
cars out" for this period. Castagna then asked what
Ross had during the previous month. The record
shows Ross replying again , that he had sold
"about" four or five; his testimony regarding his
response, however, may reflect a misunderstanding
on his part with respect to the purport of General
Counsel's question. (The record does show, other-
wise, that Ross' name had previously been "cir-
cled" on Castagna's copy of Respondent's October
sales summary; he (Ross) had been credited with
10 sales that month. Despite Castagna's conceded
program for personally reviewing the performance
records of low producers-which he had started
two weekends previously-nothing in the present
transcript would warrant a determination that Ross
had been contacted, or that his October sales
record had-before then-been reviewed by
Respondent's general sales manager .) Congelos
then joined the conversation. He noted, "Well, we
need men who can write at least 15 deals a month,
and I have no time to help. I have no time to help
them." Ross protested that Respondent's used-car
department had never reached such a level of sales
performance. Their conversation, however, ter-
minated with Congelos declaring his readiness to
give Ross "one of the best references" and to buy
him a drink.
(4) The discharge of Steelman
Steelman 's record reveals two service periods
with Respondent dealership. His first period had
run from February 1967 to April 23, 1968; on the
latter date-following an argument with Billingsley,
then a new-car sales manager-he had been
discharged. Steelman 's testimony regarding this ter-
mination, which stands in the record without con-
tradiction, reads as follows:
I had an argument with ... Billingsley ...
which had nothing to do with the agency or the
business of the agency. He spoke to me in a
derogatory manner, in derogatory terms, in a
way I didn't like, and I answered him in the
same manner . And he said, "get off. You are
fired." I said, "You can't fire me." He said,
"Yes, I can."
GALPIN MOTORS, INC.
However, Klindt, then Steelman's direct supervisor,
told him to "stick around" and declared that he
would straighten out matters. Following a
managers' meeting the following Saturday, Billing-
sley again told Steelman he was terminated. Some 4
days later , however, Congelos telephoned him, and
reported that he could resume work if he first
apologized to Billingsley. Steelman thereupon
telephoned Respondent's new-car manager at
home, said he was sorry, and was told to come back
to work.
Within a few days, however, Castagna told Steel-
man that he was again discharged, because he had
been rehired without a prior clearance from Pres-
ident Boeckmann, contrary to Respondent's nor-
mal practice.
On July 10, following a 2-1/2-month break,
Boeckmann did rehire Steelman. The present
record, with respect to their conversation, reveals
little. Steelman's testimony, which I credit, war-
rants a determination, merely, that the two men
discussed " various things" regarding salesmanship.
Inter alia , Boeckmann commented , " It is not what
is said. It is who and how you say it." Steelman
replied, however, that he did nothing different than
others did . Boeckmann first requested Steelman to
come back the following day. Then, since their con-
versation was being frequently interrupted by vari-
ous people who were entering and leaving his of-
fice, Respondent's president told Steelman, "Don't
take up any more of my time. Go out and see
George. Get a schedule and go back to work."
When asked whether Boeckmann had further told
him to "keep [his] nose clean" Steelman could not
recall, but conceded that Respondent's president
might have done so.
Respondent's move to its new "used car" lot was
made on the morning of November 20. Steelman,
though scheduled to work a shift beginning at I
o'clock that afternoon, voluntarily reported at 9:30
and helped drive cars from the dealership's old lot
to the new one. He had not been requested to per-
form this service.
Later, about 4:30 that afternoon, Castagna and
Congelos notified him that he was being
discharged. Castagna, so Steelman's testimony
shows, proffered Respondent's reason. The
salesman's recital in this connection-which I
credit-reads as follows:
A. He said that he was sorry that he had to
let me go, but that-I think the wording was, "I
was interfering with management and agita-
ting."
Q. Did he explain what he meant by inter-
fering with management and agitating?
A. I asked him and he gave me one instance
461
where I had interfered with another salesman,
Glenn Williams, whom I have known for about
12 years, shared the office with.
Q. Did he mention anything about going
through papers on his desk?
A. No. And I said I wasn't surprised,
because I felt it was coming, and Congelos
said, "You must feel guilty, then." I said, "No,
I just felt it. I just know you, and I know
George, and the attitude towards me since the
union meeting has been altogether different. I
just knew something was amiss."
Q. (By Mr. Kohn) Did Mr. Castagna ex-
plain to you what he meant by agitating?
A Only the example of interfering with
Glenn Williams about a certain deal was
pointed out to me, and I said, "I haven't done
anything any different than anybody else," and
then the phone rang , and by that time it didn't
matter. I just walked out. I went to my office,
packed my stuff, and-stayed around and
waited for my check.
Someone-presumably Respondent 's general sales
manager-offered to pay Steelman $25 for his
voluntary service that morning, moving Respon-
dent's cars. Steelman protested that he had not
volunteered for money, but that he had come down
because he thought it was the right thing to do. He
rejected the proffered payment.
c. Subsequent developments
On two December weekends , following his
November 17 termination, Ruffino picketed
Respondent dealership . Subsequently, on
December 18, pursuant to Ruffino's request (which
Preussner had relayed ), Respondent 's general sales
manager met with Ruffino and Preussner for lunch;
they gathered at Howard Johnson's restaurant near-
by. Castagna , so I find , asked Respondent 's former
salesman why he had picketed the dealership; Ruf-
fino replied that he had done so to get complainant
Union recognized , and to stop Respondent's
"wholesale firing" of salesmen because of their
union activities . The discharged salesman , further,
requested reinstatement for himself , Steelman, and
Ross. Castagna replied-so Ruffino credibly
testified-that the three salesmen would not be
rehired under any circumstances.
During their luncheon discussion-so I find-
Castagna reiterated his contention that Ruffino had
really been discharged for "inadequate follow-up"
conjoined with his "attitude" when requested to
produce his "follow-up" records. The present trans-
cript does contain testimony-which I credit-that
Ruffino, when confronted with Castagna's state-
ment , conceded, "Well, I know I wasn 't fired for
union activity as such." Respondent dealership
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requests that I consider Ruffino's remark a conces-
sion that he, himself , did not really believe his
previously expressed union sympathies had played
any part with regard to Castagna 's discharge deci-
sion. Considered in context , however, the
salesman 's remark-within my view-cannot be,
reasonably , so construed . ( While a witness, for ex-
ample , Salesman Preussner testified -so I note-
that he did not, himself , take Ruffino 's remark as
calculated to convey the meaning which his words,
superficially considered , might suggest .) Ruffino
was-so I find-really conceding nothing more than
that Castagna had never freely declared himself
primarily motivated by statutorily proscribed con-
siderations, when reaching his discharge decision-
while implicitly contending , further , that Respon-
dent 's general sales manager had , rather , proffered
pretextual reasons.
In this connection , Respondent 's counsel would
have me find , further , that a signed statement,
which Ruffino gave a Board representative , reflects
a concession that Castagna had really discharged
him merely for his failure to produce "follow-up"
data . With due regard for the present record, how-
ever, this trier of fact remains satisfied that Respon-
dent 's former salesman-when he gave his signed
statement-was merely describing therein a prior
conversation , during which he had concededly re-
ported to a fellow salesman , Preussner, Castagna's
proffered justification for discharging him. I find
nothing , within the total context of Ruffino 's state-
ment , sufficient to warrant a conclusion, that-
when he merely reported his prior conversational
reference to Castagna 's claimed justification-he
was further conceding that justification's validity.
The present record-regarding Ruffino's
December 18 luncheon conversation-reveals con-
siderable additional diversity . On balance-having
considered Ruffino 's and Castagna 's witness chair
demeanor , together with their testimony 's logical
consistency or lack thereof- this trier of fact is per-
suaded , however , that Ruffino 's testimony , regard-
ing the balance of their talk , merits credence. Thus,
I find that , within a context of discussion regarding
both complainant Union 's campaign and work with
other dealerships, Respondent 's general sales
manager did warn Ruffino to take care , thereafter,
since he could easily be "blackballed " because of
his union connection ; that Castagna claimed
Respondent had forestalled a previous union cam-
paign and would similarly stop the current try; that
he told Ruffino his recently filed unfair labor prac-
tice charge would not be found meritorious ; that he
said there was "no way" through which complai-
nant Union could win representative status at
Respondent dealership ; and that, should Ruffino,
Ross, and Steelman win reinstatement , he would
make things so "tough " for them that they would
be unable to breathe . Castagna 's divergent
testimony-so far as it may reflect some specific or
implied denials regarding these matters -must be
rejected . ( During his direct testimony , I note,
Castagna first conceded he could not recall exactly
how their luncheon conversation started Then,
having recalled the discussion regarding Ruffino's
picketing , he confessed some initial confusion re-
garding their conversation 's subsequent course. He
conceded , further , that he could not remember,
fully, their discussion regarding Ruffino 's discharge.
When asked whether Ruffino had requested rein-
statement , Castagna first testified that he had not
done so directly ; then he declared that Ruffino had
requested his job back , but that he had been told
there was "no way" this could be done , since things
had gone too far. Castagna proffered no more than
a single flat denial ; he denied that Ruffino had been
told he would be blackballed. During cross-ex-
amination-so the record shows-Castagna first
conceded that Ruffino had mentioned his pending
unfair labor charge; he (Castagna ) could not, how-
ever , recall promptly his comments with respect
thereto. Finally, he conceded that - following Ruf-
fino's reference to his possible reinstatement-he
(Castagna ) had said that if Ruffino came back to
work , he would quit .) The testimony proffered by
Respondent's general sales manager does purport
to reflect his variant recollection that Ruffino had
praised complainant Union's campaign , and that he
had described his role therein with a crusader's
zeal. Such proffered recollections , however, cannot
really be considered contradictory , when compared
with Ruffino's testimony . I find , therefore , that-re-
gardless of what Ruffino may have said in this con-
nection-his direct witness chair recollections,
previously summarized , have not been rebutted and
deserve acceptance.
The luncheon conference which we have con-
sidered, clearly, produced no changes in position.
So far as the record shows , Ruffino has had no per-
sonal contact with Respondent 's present manage-
ment personnel, since that luncheon 's date.
C. Review and Conclusions
1. Interference , restraint, and coercion
Within General Counsel 's complaint , Respondent
stands charged with statutorily proscribed inter-
ference , restraint , and coercion , beginning in June
1968 and continuing to date . Despite Respondent's
general and specific denials, these charges have
been-within my view-largely substantiated.
GALPIN MOTORS, INC. 463
General Counsel charges that, during the latter
part of June 1968, New-Car Sales Manager Billing-
sley threatened Ruffino with possible discharge
should the latter persist in promoting Respondent's
unionization. I have herein found, previously, that
no specific threat of possible discharge was made.
Upon testimony which Billingsley himself provided,
however, there can be no doubt that his remarks
were reasonably calculated to convey a suggestion
that Ruffino's union sympathies were known, and
that he would be well advised to confine his sales
floor activity to selling automobiles. Billingsley's
communication, then, must be considered
reasonably sufficient to have generated, within Ruf-
fino's mind, the belief that his union activities had
been kept under surveillance, together with a belief
that their continuation might generate some possi-
ble managerial reprisal. Within this case's total con-
text, conversational comments calculated to
generate such beliefs clearly merit statutory
proscription.
On November 8, when complainant Union's plan
for a second citywide salesmen's meeting first
became known to Respondent's managerial person-
nel, Ruffino was favored with several comments
calculated to reveal Respondent's wariness and
possible displeasure. Used-Car Sales Manager Con-
gelos-so I have found-twice proffered remarks
which, despite their purported declaratory form,
were clearly designed to solicit responses which
might be revelatory of Ruffino's union sympathies.
Thereby, Respondent 's sales manager was, so I find,
questioning Ruffino obliquely, perhaps, but not
very subtly. Further, his bluff, heavy-handed banter
was, so I find, reasonably calculated to convey a
suggestion that Ruffino's union sympathies were
really known. Sanitary Bag and Burlap Company,
Inc., 162 NLRB 1648, 1650. In short, Congelos' re-
marks were calculated to convey a statutorily
proscribed "impression" that Ruffino's union ac-
tivities had been under managerial surveillance.
General Sales Manager Castagna , likewise-
within my view-participated in statutorily forbid-
den interference , restraint , and coercion. During a
conversation with Ruffino devoted to business mat-
ters, previously noted, Castagna declared-
somewhat less than directly, perhaps, but neverthe-
less clearly-that unionized members of Respon-
dent's sales force would be held to high standards
of quality performance. Arkansas Grain Corpora-
tion , 166 NLRB 111; Hy Plains Dressed Beef, Inc.,
146 NLRB 1253, 1262. Later that day, Ruffino was
further told-so I have found-that he would be
well advised to keep quiet regarding his union sym-
pathies; Castagna's last-mentioned remark clearly
constituted a not-so-subtle threat that continued
solicitation in complainant Union's behalf might
subject him (Ruffino) to possible reprisal. Cf.
Kawneer Company, 164 NLRB 983, 985. 1 so find.
On November 13, the date of complainant
Union's scheduled meeting, Congelos queried Ross
directly regarding his plans to attend. M. & B.
Headwear Co., Inc., 146 NLRB 1634, 1640-41.
Later, so the record shows, Respondent's used-car
manager cynically directed Steelman to publicize a
proposed salesmen's meeting, deliberately timed to
conflict with complainant Union's scheduled city-
wide gathering. Congelos' testimony would
probably warrant a determination that his
pronouncement regarding the projected meeting
had really been made facetiously. This was not,
however, made clear; Congelos, when asked
whether he was "kidding" regarding the matter,
had declared, forthrightly, that he was serious. With
due regard for firmly fixed precedents-too nu-
merous to cite-there can be no doubt that
Respondent's used-car manager, thereby, did sig-
nificantly interfere with, restrain, and coerce
Respondent's salesmen with respect to their exer-
cise of rights statutorily guaranteed.
The present record will likewise support a factual
determination-which I have made-that, during
complainant Union's November 13 meeting,
Salesman Schnoeblen was seen taking notes. Then,
early the following morning he was seen conversing
with Congelos and Castagna. Later that day, for a
brief period, Congelos wore a union button which
Schnoeblen had, concededly, provided. Such conge-
ries of circumstance might well generate a suspi-
cion that Respondent's management had either
sponsored or welcomed the fruits of surveillance, so
far as complainant Union's meeting was concerned.
General Counsel, however, currently makes no
such contention. Nor would a factual determination
with respect to surveillance be warranted, within
my view. Schnoeblen's conduct may well have been
suspicious. But General Counsel's testimonial
presentation with respect thereto will not-so I
find-support a definitive determination that statu-
torily protected conduct by Respondent 's salesmen
was really subjected to surveillance.
There can be no doubt, however, that Used-Car
Manager Congelos, particularly, did subsequently
participate in conversations calculated to generate
an impression that such surveillance had taken
place. For example: Following Respondent's
November 14 sales meeting, Congelos revealed his
knowledge-during a conversation with Steelman
particularly-that five of "his" men had attended
complainant Union's meeting. Cf. Red & White
Super Markets, 172 NLRB 1841. Further, Ruffino
was told that Congelos had "heard" he was a union
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer. (Such was not, of course , the case .) While
wearing Schnoeblen 's union button , Respondent's
used-car manager queried Ross with respect to
where his button was and then proffered a gibe re-
garding Ross ' committee nomination . Finally, dur-
ing a subsequent social "gathering " with Respon-
dent 's management personnel and several salesmen
present , Congelos repeated the names of various
salesmen who had attended complainant Union's
meeting. These comments , considered in totality,
were-so I find-clearly calculated to convey
Respondent 's sense of concern regarding complai-
nant Union 's campaign , together with manage-
ment's possession of data , relative to the participa-
tion therein of Respondent 's salesmen , necessarily
derived through questioning or surveillance.
On November 18, during Respondent 's regularly
scheduled sales meeting following Ruffino's
discharge, General Sales Manager Castagna warned
his subordinates that , should they wish to become
"union" men, they had better " get on the ball" and
behave like professionals. Since this comment was
made following his reference to Ruffino 's dismis-
sal-purportedly for the latter 's failure to maintain
"follow -up" records- the dealership 's salesmen
were, realistically , put on notice thereby that
management 's prior lectures regarding the desira-
bility of such records would be complemented,
thenceforth , by definite requirements with respect
to their maintenance . See Dale Industries, 145
NLRB 1050 , 1056. Substantially , Respondent's
salesmen were being told that compliance with
stricter standards would be expected of them now
that complainant Union 's campaign had touched
Respondent dealership. (General Counsel would,
further , have me find President Boeckmann's
disparagement of Ross as complainant Union's
possible contract negotiator-during the November
social gathering previously mentioned- likewise
violative of Section 8 ( a)(1); the suggestion, how-
ever , must be rejected . Boeckmann 's rhetorical
question in this regard , though clearly calculated to
disparage Ross ' capacity should he be required to
function as complainant Union 's spokesman, con-
stituted-within my view-nothing more than a
statutorily permissible view, argument , or opinion.
Should a contrary determination be deemed war-
ranted , President Boeckmann 's comment could
hardly be considered deserving of this Board 's stric-
ture . Within its context , it was not-within my
view-a significant manifestation of Respondent's
position .) Finally, Castagna 's December 18
luncheon comments-that Ruffino might be
"blackballed" should he continue proselytizing in
complainant Union's behalf, and that Respondent's
three dischargees would find their working condi-
tions with Respondent dealership burdensome
should this Board direct their reinstatement-
clearly constituted threats reasonably calculated to
interfere with, restrain , and coerce Ruffino and
Price , his listeners ; I so find.
2. Discriminatory discharges
a. Preliminary considerations
The record herein-with respect to manage-
ment 's discharge decisions affecting Ruffino, Ross,
and Steelman , particularly-primarily presents
several related questions of motivation . These must
be considered close questions ; their closeness ac-
counts , largely, for the length at which the relevant
testimony has been reviewed . On the one hand,
despite Respondent 's citation of some superficially
plausible reason for each challenged termination,
management 's several discharge decisions cannot,
really , be readily reconciled with genuine business-
grounded motives. But, on the other hand , General
Counsel 's present contention, that Respondent's
course of conduct was motivated "in significant
part " by statutorily proscribed considerations,
derives, primarily , not from direct testimony but
from collateral circumstances , which he proffers as
sufficient to warrant a Board determination that
Respondent management 's cited reasons for these
discharges were pretextual.
This Board has never-so far as I know-chal-
lenged the decisional truism that , union considera-
tions aside, "management can discharge for good
cause , or bad cause , or no cause at all" without
violating the statute . N.L.R.B. v. T. A. McGahey,
d/b/a Columbus Marble Works, 233 F.2d 406, 413
(C.A. 5); N.L.R.B. v. Isis Plumbing & Heating Co.,
322 F.2d 913, 922 (C.A. 9). This pronouncement
by Judge Brown , however , cannot reasonably be
considered a suggestion that the quality of manage-
ment 's proffered reason for a discharge has no
evidentiary significance, whenever a respondent
employer 's "real " motivation for such action must
be determined . Of course , when-with respect to
some workers-conduct reasonably sufficient to
warrant disciplinary reaction has been shown, the
nature or severity of that reaction normally lies
within his or her employer 's discretion ; motivation
statutorily proscribed cannot be deduced from
disciplinary reactions merely because this Board
might deem them unreasonably severe . Thus, triers
of fact, shortly , cannot proceed with a cavalier
deduction that-whenever the employer 's discipli-
nary reaction has been one which the factfinder
would not have matched under comparable circum-
stances-the proffered reasons for such a reaction
cannot have been " true" reasons ; nor will it neces-
GALPIN MOTORS, INC. 465
sarily follow that such true reasons must lie, there-
fore, in whatever management union animus the
record may circumstantially reveal.
This Board has long recognized, however-with
judicial concurrence-that where challenged,
discipline reflects a reaction wholly dispropor-
tionate to some concerned worker 's offense, under
particular circumstances, this factor may be taken
into account when determining his employer's
motivation . In short, when a challenged discharge
cannot be rationally and fully explained on the
basis of some genuine business -grounded motive,
the real reason for such a tei urination may properly
be found in relevant testimony which may ra-
tionally explain the employer's conduct. For the
truism , previously noted , that management can
discharge for a bad cause or no cause at all, may
reasonably be considered matched by the "normal
presumption" that people, when conducting their
business affairs, proceed pursuant to rational mo-
tives. Sears, Roebuck and Co., 123 NLRB 1236,
1264. Cf. Mike Persia Chevolet Corporation of
Houston, 134 NLRB 1402, 1411. Within the case
last cited, Trial Examiner Somers notes, with Board
approval, that:
The fact that the cause assigned is "bad" or
even that there is no cause does not establish
that the cause was one which the statute for-
bids. If there is independent evidence to war-
rant the inference that the motive was to ad-
vance or discourage union activity, then the
matter of whether the cause assigned is "good"
or "bad" is not an ultimate subject of inquiry,
but merely an evidentiary item bearing on the
weight of the evidence advanced by the em-
ployer to offset such inference. This is so
because normally where the reason assigned is
"not one for which discharges were ordinarily
made" (N.L.R.B. v. Robbins Tire & Rubber
Company, Inc., 161 F.2d 798, 801)(C.A. 5),
the testimony that that was the real cause does
not carry the kind of persuasion to offset an in-
ference of a discriminatory motive, flowing
from other evidence, which a "good" cause
would carry. Ibid. See also N.L.R.B. v. Jackson
Tile Manufacturing Co., 282 F.2d 90, 92(C.A.
5). So the nature of the cause assigned is but
an evidentiary factor bearing on the probability
of whether it is the real cause. And the fact of
the cause being "good" or "bad" or even that
there was no cause is not absolute in its legal
consequences: despite the normal improbability
of a "bad" cause being a real one, nevertheless
if the evidence that it is the real cause, how-
ever "bad," carries sufficient persuasion in the
particular instance to offset the inference of
discriminatory motivation flowing from other
evidence, the employer must be exonerated.
Conversely, a "good" cause, while starting
with the advantage of its probability as the real
cause may retain or lose its weight on that
score, depending upon whether the assertion
that it was the real cause is or is not con-
tradicted or impeached by other evidence.
Substantially , therefore , triers of fact-with respect
to these cases-must appraise two record presenta-
tions proffered in collision with each other. And
when strong evidence of statutorily proscribed
motivation must be balanced against "business mo-
tive" testimony really too weak to be persuasive of
genuineness, such a record preponderance would
normally warrant a determination that antiunion
considerations provided the employer' s "real"
cause. Even slight evidence , however, calculated to
suggest antiunion motivation-when balanced
against some proffered business reason determined
to be totally irrational or incredible within its con-
text-can still be considered sufficiently weighty to
warrant the conclusion that a respondent em-
ployer 's discharge decisions derive from antiunion
motives. The record, however, sometimes can be
equally balanced. Casa Grande Cotton Oil Mill,
supra. Then, determination would clearly be
required that General Counsel's burden of proof
has not been satisfied, and the respondent em-
ployer's exoneration would necessarily follow.
With these considerations in mind, General
Counsel's proffered prima facie case must be
reviewed, together with Respondent's counter
presentation calculated to support its claim that
Ruffino, Ross, and Steelman were terminated for
reasons bottomed upon "business judgment" solely,
because of their respective "attitudes" coupled
with violations of company policy and company
work rules.
b. General statement
Presumably, Respondent will not dispute General
Counsel's contention that its management repre-
sentatives knew Ruffino, Ross, and Steelman as
union supporters; no contrary position has been
taken in Respondent's responsive pleading or brief.
Previously, within this decision, I -have found that
Ruffino's union sympathies were known to Billing-
sley-then a new-car sales manager-by mid-June
1968 specifically. Subsequently, so the record
shows, Respondent's management "team" learned
that he and Ross had been nominated for union
committee posts. Concurrently, Steelman 's view re-
garding complainant Union's campaign became man-
ifest when - so General Counsel notes - he "stood
up" for his fellow salesmen and their right to
attend complainant Union's November 13 meeting.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All three men-Ruffino, Ross, and Steelman-were
thereafter present at that meeting, when, as previ-
ously noted, Ruffino and Ross nominated each
other for committee positions. Respondent's
management , particularly Castagna and Used-Car
Manager Congelos, learned quickly that these
salesmen, among others, had attended complainant
Union's meeting; clearly, likewise, they learned-
from a source or sources which the record suggests
but does not definitively reveal-what had taken
place there.
All three salesmen were discharged, so the
record shows, within a week after complainant
Union's meeting, though Respondent, concededly,
was then contemplating the expansion of its sales
force. With matters in this posture, General Coun-
sel suggests , with his brief, that:
These circumstances, viewed in the light of
Respondent 's demonstrated union animus,
marked by conduct which indicated [its
willingness ] to overstep the bounds of lawful
opposition to keep the Union out, established
prima facie that the discharge of Ruffino, Ross,
and Steelman was motivated in significant part
by Respondent's anti-union animus.
Dispassionately considered, however, these conten-
tions-within my view-reflect overstatement. For
example , Respondent 's president , so far as this
record shows, never did declare a forthright opposi-
tion with respect to complainant Union's citywide
campaign. When that campaign subsequently
touched Respondent's sales force, Boeckmann
merely expressed concern. True, Castagna and
Congelos did, clearly, react negatively; previously,
within this Decision, certain of their reactive com-
ments have been found reasonably calculated to
restrain and coerce Respondent's personnel, with
respect to their exercise of rights statutorily guaran-
teed. However, their conduct-though herein found
violative of law-hardly demonstrated a strong,
pervasive animus focused on particular union sup-
porters within Respondent's sales force. General
Counsel's case with respect to these challenged
discharges, must-therefore-rest upon proof that
management's several "reasonable" justifications
cannot really be sustained.
c. The discharge of Ruffino
Castagna's testimony-previously summarized
herein-substantially reflects Respondent's present
contention that Ruffino was discharged for "follow-
up [failure to produce records when requested] and
insubordination" which were the reasons purpor-
tedly given when he was terminated. However, with
due regard for the record, considered in totality,
this trier of fact is persuaded that Respondent's
proffered dual justification "fails to stand under
scrutiny" when closely reviewed. N.L.R.B. v.
Thomas W. Dant, d/b/a Dant & Russell, Ltd., 207
F.2d 165, 167 (C.A. 9). Several bases for this con-
clusion may be mentioned:
1. 1 have noted, first, that Castagna did not com-
mence his very first systematic review, with respect
to whatever follow-up records Respondent's
salesmen maintained , until the November 9-10
weekend which directly followed complainant
Union's published notice that its citywide campaign
was being reactivated. The general sales manager's
program, further, was pursued with but a limited
number of salesmen, purportedly Respondent's
poorest producers during the previous calendar
month. Within this limited group, he concededly
checked one man's records twice, though no
grounds for criticism had been developed during his
first review. (Castagna, had he really considered
proper well-maintained "follow-up" records a
genuine sine qua non for productive salesmanship
during a purportedly slow period, could con-
ceivably have requested his subordinates within
Respondent 's management " team" to commence a
supportive full-scale review, calculated to check the
records maintained throughout Respondent's new-
car sales force . He testified that his subordinate
managers did have some "system" for checking
such matters. No such full-scale review seems to
have been tried, however. The present record gives
no indication whatsoever that Respondent's purpor-
tedly heightened concern with "follow-up" record
practices was mentioned during general sales
meetings, before Ruffino's termination; nor does it
suggest that salesmen considered average producers
were even reminded of Respondent's position re-
garding the desirability of proper records.) Respon-
dent 's defensive presentation suggests a contention
that-despite its timing-Castagna's review pro-
gram was undertaken solely because President
Boeckmann had declared himself concerned over
supposedly poor October sales. The contention,
however, lacks significant record support. Summary
dealership sales records-which have been
produced for June, July, September, and October,
particularly-reveal a substantial growth in Respon-
dent's sales during the latter month. (For some
reason, never stated for the record, Respondent's
August sales summary has not been produced or
mentioned; thus, no comparisons between that
month and the several months which preceded and
followed August have been possible.)
Respondent's October business produced the
highest gross profit ($152,997) for the 4 months
noted; the figure cited reflects a particularly signifi-
GALPIN MOTORS, INC. 467
cant increase when compared with September's
gross profit result. Total car sales for October
(447) reveal, consistently, that 108 more cars were
sold than during September. With three more
salesmen working, for a full or partial month, the
average number of cars sold-per man-jumped
from 11.31 to 13.54 during the 2-month period in
question. Concurrently, Respondent's monthly
average gross profit, per salesman, rose from
$3,378.86 to $4,636.27, while Respondent's sales
staff was being expanded. (The record herein
reflects Respondent's reliance on a sales productivi-
ty formula pursuant to which salesmen were nor-
mally expected to sell 15 or more cars per month,
while those who sold 12 or fewer were considered
poor producers. During October 1968, no more
than 13 of Respondent's 33 salesmen sold 15 or
more cars. Out of 20 other salesmen, 15 sold 12 or
fewer cars; 10 of these men had worked the full
month. This record, however, was significantly
better than September's; during that month, only 9
salesmen out of 30 had sold 15 or more cars, while
18 of 30 salesmen had sold fewer than 12 cars. Of
the 18 salesmen last mentioned, 14 had worked the
full month.) With matters in this posture, Castag-
na's testimony that President Boeckmann was par-
ticularly perturbed regarding Respondent's sup-
posedly "poor" October sales record fails to per-
suade. Necessarily, too, Respondent's contention
that President Boeckmann's concern provided the
sole motivation for his direction to Respondent's
general sales manager-regarding a crash program
of supervisory review, calculated to stimulate the
firm's least productive salesmen-falls for lack of
record support.
2. With respect to Ruffino, particularly, Respon-
dent's summary records do reflect a significant Oc-
tober drop in sales production. Having sold 18-1/2
cars during July, plus 17-1/2 cars during Sep-
tember, Ruffino sold only 7 during the following
month. However, his credible testimony-which
Respondent's general sales manager cor-
roborated-reveals that Castagna, throughout this
period, maintained a wall chart within his office,
whereon each salesman's sales record for the cur-
rent month was recorded, with daily modifications.
Castagna, therefore, must have known- during Oc-
tober particularly -that Ruffino was doing poorly,
despite Respondent's generally better overall sales
record. (During the month in question, Ruffino
finally ranked 25th among Respondent's 33
salesmen, both with respect to cars sold and total
gross profit produced. His record in these respects
did reflect a significant drop in productivity, com-
pared with his July-September results.) Though
Castagna, concededly, did speak to Ruffino regard-
ing his sales slump during October, he did not, so
far as the record shows, concurrently question Ruf-
fino's practice with respect to maintaining "follow-
up" records and prospect files. Nor does the record
show that the salesman was then questioned or
chided regarding his conceivable failure to utilize
such sales tools properly. (Respondent's general
sales manager testified that he had checked the
"follow-up" records of some salesmen-those who
were not doing "real good" work-during Sep-
tember and October. He could recall only one
salesman checked, however; Ruffino's name was
not mentioned.)
Castagna's failure to pursue these matters-dur-
ing the very month when Ruffino's lower sales were
purportedly a subject of discussion -provides rather
cogent support for General Counsel's contention
that Respondent's claimed November concern, re-
garding his presumptive failure to maintain such
records properly, should be considered, really, con-
trived.
3. Respondent 's general sales manager-so the
record shows-had known Ruffino for a number of
years. Castagna had, particularly, hired Ruffino for
sales work, while he (Castagna) was assistant
general manager for another Ford dealer.
The present record, therefore, warrants a deter-
mination-within my view-that he (Castagna)
must have been familiar , generally, with Ruffino's
sales technique; I consider it more than likely that
Castagna really was-throughout the period with
which this case is concerned-fully congnizant that
Ruffino might not be maintaining well-organized
"follow-up" records. (Respondent's general sales
manager testified that-when he hired Ruffino for
Respondent's sales force-reference was made to
the fact that he (Ruffino) had previously worked
for a dealership which had permitted salesmen to
follow a so-called "hit or miss" policy, with respect
to maintaining follow-up records. Castagna recalled
that he had, therefore, considered it necessary to
tell Ruffino he would not be able to "live" while in
Respondent's hire without good "follow-up" prac-
tices.) I conclude, therefore, that-when Respon-
dent's general sales manager finally did request
Ruffino to produce such records-he must have
known, or had some reasonable ground for belief at
least, that nothing more than some scanty notes
would probably be produced. Having so concluded,
I find, further, that Castagna's demand for Ruffino's
records really reflected a calculated ploy, bottomed
on his reasonable ground for belief that such a
request could not be fully satisfied.
4. My conclusion, previously noted, that Castag-
na's November 17 request for Ruffino's records and
prospect file really reflected a search for some pre-
427-258 O-LT - 74 - 31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sumptively ready pretext, calculated to justify the
salesman 's termination, finds further support in
Ruffino's testimony, which I credit, that his records
had never previously been reviewed. The salesman,
while a witness, did concede that-when first
hired-he had been told by Billingsley what
Respondent desired regarding "follow-up" record
maintenance. I am satisfied, however, that Billing-
sley did not, then or later, prescribe any specific
forms which he should complete; nor did he define
the data which Ruffino's prospect files should con-
tain. (While a witness, New-Car Sales Manager
Johnson testified that Ruffino's follow-up records
had been checked three times and found in-
adequate. This, Ruffino denied. Regarding this con-
flict, I note, first, that Respondent's general sales
manager had previously testified that Johnson had
reported Ruffino as lackadaisical and had recom-
mended his discharge. Johnson, however, testifying
directly thereafter, declared that his findings rela-
tive to Ruffino's work had not been reported to
Castagna; he mentioned no discharge recommenda-
tion. With Respondent's witnesses testifying incon-
sistently, this trier of fact can only conclude that
neither Castagna nor Johnson deserves credence in
this connection. Ruffino's denial has been
credited.) In June 1968, when he sold 10 cars, Ruf-
fino was-so the records shows-serving in Respon-
dent's used-car department; there, Respondent's
management did not promote or suggest "follow-
up" record maintenance. When he was transferred
back to new-car sales, his July-September produc-
tivity was better than average; for both July and
September his total monthly car sales placed him
7th in productivity, within Respondent's 29- to-30
man sales force. Since Respondent's management
"team" witnesses testified that they customarily
reviewed sales technique and "follow-up" records
only with salesmen in difficulty, Ruffino's testimony
that his records were not checked during this
period-within my view-rings true.
5. When Ruffino was requested to produce "fol-
low-up" records, his November sales-so he
testified-had reached 11-1 /2 cars; Respondent's
management has not challenged the salesman's
testimony in this connection. His November record,
therefore, had significantly bettered his October
showing, giving promise that he would, thereafter,
reach or surpass Respondent's monthly norm. And,
since Castagna's current monthly wall chart would
concedely have revealed Ruffino's up-to-date sales
record, Respondent 's general sales manager must
have known that his (Ruffino's) October slump had
not continued; I so find. Nevertheless-when the
salesman , during their final conversation, men-
tioned his current sales record-Castagna declared
that Ruffino's improved productivity would not af-
fect his discharge decision. Such firmness of pur-
pose, within this case's circumstantial context, per-
suasively suggests-within my view-the presence
of some motivation separate and apart from Ruf-
fino's purported deficiencies. (The record shows
that Respondent's general sales manager sub-
sequently prefaced a statement regarding Ruffino's
termination with "You wouldn't believe, but ...."
This, within my view, will support the determina-
tion-which I make-that Castagna knew Respon-
dent's sales force would not credit any company
contention that a salesman's lack of comprehensive
"follow-up" records constituted "good cause" for
discharge.) Castagna, certainly, did not consider his
salesmen's maintenance of proper, well-kept "fol-
low-up" records an end in itself; Respondent's
management-so the record shows-regarded such
records merely as tools which salesmen would be
most likely to find helpful. (For example: While a
witness, President Boeckmann conceded that "If
the salesman is doing a top job he has to be using
his follow-up and prospect records." He declared
himself concerned about salesmen who were not
doing top jobs.) With respect to salesmen showing
creditable performance, therefore, Respondent's
management would, upon its own showing, lack any
pressing reason for reviewing sales techniques,
prospect files, or similar collateral matters. And
Ruffino, despite his poor October sales, was build-
ing a creditable November record. Dispassionately
viewed, therefore, Castagna's claimed determina-
tion that he merited discharge, not for poor sales,
but, inter alia, because he was presumably lax in
maintaining a potentially useful trade tool while his
sales productivity was improving, lacks rational
justification.
6. There remains, for consideration, Castagna's
claims that Ruffino was insubordinate. Previously,
within this Decision, that claim has been rejected.
Nevertheless, conceding, arguendo, that Ruffino
may have been flippant, or that he may have been
presuming upon his long friendship with Respon-
dent's general sales manager, I am satisfied, further,
that Castagna overreacted, and that his decision to
respond with rigor derived-partially at least-from
nonbusiness considerations.
With matters in this posture, the applicable rule
for decision has been stated many times. See
N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341
F.2d 725, 728 (C.A. 2), within which the court
declared:
The rule of law applicable in a case like this
requires a delicate factual determination. "If
employees are discharged partly because of
their participation in a campaign to establish a
GALPIN MOTORS, INC.
union and partly because of some neglect or
delinquency, there is nonetheless a violation of
the National Labor Relations Act ...."
N.L.R.B. v. Jamestown Sterling Corp., 211 F.2d
725, 726 (2 Cir. 1954); N.L.R.B. v. Great
Eastern Color Lithographic Corp., 309 F.2d
352, 355 (2 Cir. 1962), cert. denied, 373 U.S.
950 ... (1963). On the other hand, if an em-
ployee is discharged for neglect or delinquen-
cy, there is no violation simply because he was
engaged in organizing and the employer sheds
no tears at his loss. N.L.R.B. v. Birmingham
Publishing Co., 262 F.2d 2, 9 (5 Cir. 1958);
Ore-Ida Potato Prods., Inc. v. N.L.R.B., 284
F.2d 542, 545-546 (9 Cir. 1960); Local 357,
Int'l Bhd. of Teamsters v. N.L.R.B., 365 U.S.
667, 679-680 ... (1961 )(concurring opinion
of Mr. Justice Harlan). Reconciliation of these
two principles has its difficulties, especially in
cases where the discharge was placed on a per-
missible ground and the employee's conduct,
while a sufficient ground for discharge, was not
so egregious as to demand it. The General
Counsel can win by proving that other em-
ployees who committed similar acts but were
not known to be engaged in union activity
were not discharged, and he will normally lose
if the employer can establish a record of
discharges for similar conduct. See Tompkins
Motor Lines, Inc. v. N.L R.B., 337 F.2d 325,
330 (6 Cir. 1964). In the many cases where no
such proof is tendered, the General Counsel
must at least provide a reasonable basis for in-
ferring that the permissible ground alone
would not have lead to the discharge, so that it
was partially motivated by an impermissible
one.
Upon the present record, I am satisfied that
General Counsel has, herein, provided a reasonable
basis for concluding that-had Ruffino not become
known to Respondent's management as a supporter
of complainant Union's reactivated citywide cam-
paign-he would not have been discharged. The
validity of that conclusion has not, within my view,
been vitiated by Respondent's defensive presenta-
tion. My conclusion derives, partially, from
Respondent's failure to present a consistent, ra-
tionally persuasive justification for its contention
that Ruffino's "neglect or delinquency" was serious
or flagrant. Cf. N.L.R.B. v. Walton Manufacturing
Co., 322 F.2d 187, fn. 2 at pp. 189-190 (C.A. 5).
Further, however, reliance is placed on Castagna's
candid concession, when Ruffino was discharged,
that the latter's union activities were "partly"
responsible for his termination. Cf. G. K. Chevrolet,
Inc., 176 NLRB 415, 420. 1 find significant,
469
likewise, the general sales manager 's subsequent
comment that Respondent's salesmen , should they
choose to become " union " men, would have to
behave like professionals. Thereby, Castagna
clearly linked Respondent's determination to set
new, definitively higher, standards of job per-
formance-enforceable through discharge, should
such action prove necessary-with a negative reac-
tion to complainant Union's campaign. (Well-set-
tled decisonal doctrine teaches that "anti-union
bias and demonstrated unlawful hostility are proper
and highly significant factors for Board evaluation
in determining motive" with respect to challenged
discharges. Compare N.L.R.B. v. Dan River Mills,
Inc., 274 F.2d 381, 384 (C.A. 5); accord: N.L.R.B.
v. Lone Star Textiles, Inc., 386 F.2d 535, 536 (C.A.
5), in this connection.) When statutorily proscribed
reasons for discharge, like those revealed within the
present record, constitute a parallel or concurrent
motivation for challenged conduct, which cannot
be disentangled from so-called business reasons or
separately weighed, discrimination to discourage
union membership, within the meaning of the
statute, has been shown.
d. The discharge of Ross
When discharged , Ross was told by Respondent's
general sales manager that his "low production
sales record" had motivated management 's deci-
sion . Before me, however , Respondent 's position
has been stated somewhat differently . Within his
brief, Respondent 's counsel now contends that Ross
was terminated because Respondent 's management
team had concluded that his performance had
demonstrated his lack of ability to become a suc-
cessful salesman , though he had been given re-
peated chances. The dealership 's contention has
been put more concretely in General Counsel's
brief:
The thrust of Respondent 's defense as to the
termination of Ross is that he was an absolute-
ly incompetent salesman from the very
beginning , who never improved and who
required constant assistance in the closing of
deals.
Within my view , however , Respondent 's present
defense-thus understood- lacks persuasive record
support. The firm 's testimonial and documentary
presentation , rather , provides ample justification
for a determination that General Counsel's prima
facie case-regarding management 's statutorily
proscribed motive for Ross' termination -has not
been overcome.
First : The present record does not persuasively
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establish Respondent's claim that Ross had a poor
sales record. It reveals-contrariwise-that he con-
sistently maintained a reasonably high "gross profit
average" per transaction, and that he was never
Respondent's poorest producer with respect to
number of cars sold . During June 1968, he ranked
seventh within Respondent 's 28-man sales force,
with respect to total monthly gross profit; he
ranked 1 1 th with respect to total car sales. Of
Respondent 's eight used-car salesmen , particularly,
three sold fewer vehicles than Ross; his June gross
profit "average" per sale was higher than six other
used-car salesmen produced, while it matched that
produced by one colleague. During July, when
Respondent had nine used-car salesmen, four sold
fewer cars that Ross; his gross profit "average" per
sale was greater than five other used-car salesmen
could show. With respect to total monthly gross
profit, Ross ranked ninth within Respondent's 29-
man crew; he ranked ninth in total car sales. During
September, 4 of 10 salesmen working in Respon-
dent's used-car department sold fewer vehicles than
Ross; his gross profit average for the month, how-
ever, bettered the figures shown for 8 fellow used-
car salesmen. During October, his last full month, 3
of Respondent's 10 used-car salesmen sold fewer
vehicles; Ross' gross profit average for the month in
question exceeded that of 7 colleagues.
While a witness, Used-Car Manager Congelos did
concede-at one point-that gross profit was "the
name of the game" for motor car dealerships. And
President Boeckmann, likewise, characterized
"profits" per transaction as one factor in measur-
ing a salesman's ability. Ross' record - measured by
this standard-clearly reveals his capacity to
produce sales numbered within a presumptively
"average" range, so far as Respondent's used-car
department was concerned. Concurrently, his gross
profit "averages" per month placed him within a
median range or better. When Congelos was asked
whether he had ever complimented Ross regarding
his gross profit average per sale, he conceded that
he might have done so. Further, Ross was never
told-so I find-that his sales production was con-
sidered dangerously low. Thus, Respondent can
hardly now contend, persuasively, that Ross' mea-
sured productivity, when compared with the
productivity of fellow used-car salesmen, was so
noticeably low as to justify discharge.
Second: Respondent's related contention that-
despite his record-Ross completely lacked com-
petence; that he derived no benefit whatsoever
from supervision or management's frequent training
meetings; and that he could not consummate sales
without managerial help, likewise simply fails to
persuade. The record, considered in totality, sug-
gest-rather-that Respondent's present position
regarding the salesman 's claimed lack of com-
petence reflects nothing more than a self-serving
rationalization. In this connection , Congelos , testi-
fying with regard to his claim that he was routinely
required to help Ross in "closing" prospective
sales, was questioned and responded as follows:
Q. (Mr. Fredericks) Your purpose in help-
ing him was to make the sale, I presume?
A. It was.
Q. Could he close them himself?
A. No, sir, he could not .... He just didn't
know how .... He didn't know what it was all
about. He just didn't know how to make a sale.
TRIAL EXAMINER: Now, Mr. Congelos, I
thought I knew what you were driving at; now I
am in the dark again. Do you mean that Mr.
Ross simply didn't know what matters to
discuss with the customers; he didn't know that
he had to cover points A, B, and C in order to
fill out the proper proposal form?
THE WITNESS: Correct ....
TRIAL EXAMINER: Now I will come back
again . Do you mean that Mr. Ross simply
didn't know what the figures were, didn't know
the steps to follow-or that he couldn't do it
artfully or persuasively?
THE WITNESS: He just didn't know how to do
it .... We mark our cars out there with prices
that we expect to get. He will approach a
customer and he will say this car is selling for
2995. He will bring the customer into the of-
fice. If the customer said yes, he would buy it,
he didn't know where to go from there. He
would call the manager in and say this is the
car he wants, this is what he wants to pay, what
do I do now?
Previously, within this Decision, reference has been
made to Congelos' hearty, aggressive manner; his
witness chair demeanor clearly revealed a gift for
salemanship. Regarding his claim that Ross lacked
competence, however, this trier of fact has been
oversold. Congelos' contention, now, that Ross did
nothing more than greet prospects, without himself
even trying to consummate sales, simply strains
credulity. In this connection, Respondent's used-car
manager, for example, suggested that Ross had
monopolized his supervisors' time by continuously
requesting help. But Congelos, Johnson, and
Billingsley testified that they frequently helped other
salesmen who were "closing" deals. Further, Con-
gelos' concession that he "may have" compli-
mented Ross, regarding his gross profit average
record, certainly cannot be reconciled, reasonably,
with his presently professed belief that he (Con-
gelos) was-throughout Ross' period of employ-
GALPIN MOTORS, INC.
ment-primarily responsible for closing the latter's
sales.
While a witness , President Boeckmann testified
that Respondent 's management team reviewed the
sales performance of various salesmen during every
weekly management meeting ; further he testified
that sales performances were reviewed daily by
Respondent 's several managers . Nevertheless,
Respondent 's president could not recall whether
Ross ' competence or performance had been con-
sidered at any management meeting before
November 20, when a decision was reached regard-
ing his termination . And nothing within the present
record , indeed , would really warrant a conclusion
that Ross ' record was , thus, reviewed . ( Signifi-
cantly , 1 week before complainant Union's
November 13 meeting-when Respondent's
management was considering office space assign-
ments for various used -car salesmen within the
new, enlarged facility which Respondent was
preparing to open-Ross was given an office assign-
ment . Respondent 's conduct hardly suggests that
his competence was, then , held in question or that
his termination , for any reason , was then being con-
sidered .) Rather , the record suggests that-before
November 20 specifically-Respondent 's manage-
ment was not culling its sales roster to get rid of
poor producers ; their removal was being left to nor-
mal attrition through " turnover " resignations, sole-
ly. During this period , further , Respondent's
management was soliciting its salesmen to prose-
lytize and refer qualified applicants for sales work;
clearly, Respondent was planning a staff expansion,
rather than a deliberate reduction in force.
Respondent has proffered considerable testimony
concerning the November 20 managers ' meeting,
during which Ross' termination was decided. Con-
sidered closely, however , the firm 's presentation
suggests , within my view , that management's deci-
sion-with respect to Ross particularly-did not
derive from a planned, deliberate, or routine review
of Respondent 's sales roster. Neither Boeckmann,
Castagna, nor Congelos seems to have been
prepared beforehand to discuss Ross' record. Thus,
Boeckmann conceded that his managers did not
have Ross' 4- or 5-month sales record before them
when they purportedly decided his fate; the
salesman 's gross profit performance-revealed by
the record herein as slightly better than average
during most of the 4-month period covered by
Respondent 's available sales figures-was not even
discussed. (Further buttressing this conclusion-
that Ross' discharge did not derive from a routine,
objective review, dealing with his performance and
competence-the following circumstances should
be noted. When Castagna finally notified Ross that
471
he was being terminated because of low sales
production, shortly following the managers' meet-
ing, the salesman was-so I find-queried regard-
ing his October sales record; likewise he was
asked how many cars he had sold, thus far, during
the current month. Since Respondent's general
sales manager had, most recently, been review-
ing Respondent's October sales summary-and
since his currently maintained office wall chart
would have shown Ross' November sales record-
his seeming lack of knowledge regarding the
salesman's performance , within my view , cannot be
explained logically . Considered in context, how-
ever , the general sales manager 's revelation that he
lacked information regarding Ross' most recent
performance record provides persuasive collateral
support for a determination that Respondent's
discharge decision had not, really , been derived
from, a dispassionate managerial review , concerned
with his sales productivity.) Finally, the record
reveals that Congelos did, himself , possess the
authority to discharge salesmen for poor per-
formance-without any mandate from his fellow
managers-and that he had, in fact, once exercised
such authority. Yet he had never-so far as the
record shows- seriously considered Ross ' discharge
upon his own responsibility , before complainant
Union's meeting.
With matters in this posture , Respondent has not,
within my view , made a sufficient showing that
Ross' discharge derived from business considera-
tions-precisely when the dealership 's used-car
facility was being expanded , when the hire of more
used-car salesmen was in contemplation , and when
Respondent 's current sales force was being
requested to refer prospective applicants for sales
work . In this connection , General Counsel , within
his brief, notes, persuasively, that:
If, indeed , Ross were the gross incompetent
described by Congelos, it is nothing short of
amazing that he continued so long at Galpin
Motors, that his poor performance was never
discussed at any management meeting before
November 20, or that Congelos had never even
warned him he might be discharged if his per-
formance did not improve.
This trier of fact concurs. Upon the present record,
I am satisfied that Respondent's defensive presenta-
tion herein overblows whatever justifiable criticism
Ross' job performance may have warranted, and
that Respondent would have tolerated his pur-
ported deficiencies-beyond November 20 cer-
tainly-but for management 's knowledge, so
recently acquired, that he was presumably prepared
to play some active role in complainant Union's
revived citywide organizational campaign.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
e. The discharge of Steelman somewhat of an independent businessman in
his own right ....
And Steelman, so the record shows, had sold au-
tomobiles within the Los Angeles metropolitan area
for some 25 years, during 17 of which he had
managed or co-managed his own business; since
1962, he had been an employed salesman. Both
President Boeckmann and Congelos conceded,
while testifying, that Steelman was well qualified-
so much so that he had frequently been placed in
charge of Respondent's used-car lot when the firm's
regularly designated managers were necessarily ab-
sent for managers ' meetings , or for other reasons.
Joseph Boggio, Respondent's second used-car sales
manager, likewise conceded that he had sometimes
requested Steelman 's assistance in performing his
managerial duties. The record further reveals that
New-Car Manager Johnson, during his period of
service as Respondent 's used -car sales manager,
had occasionally requested Steelman to appraise
cars or to help other salesmen close sales. Finally,
Congelos, himself, further conceded that-before
he got a machine , presumably a calculator, with
which to figure Respondent 's financial reserve "in-
come" derivable from particular sales transac-
tions-he had relied on Steelman to make the
necessary calculations.
Further, determination seems fully warranted
that Steelman was a superior salesman . His full
term of service with Respondent covered 22
months, with a short 2-1/2-month break before his
final 4 months . And Respondent 's sales records for
September-October 1968 reflect his sales per-
formance for 2 of these last 4 months , within which
he had worked full time . During September he had
sold 17 cars, ranking eighth in this respect within
Respondent 's total 30-man sales force , his total
monthly gross profit produced was sixth highest
among all of Respondent 's salesmen. During Oc-
tober Steelman had sold 18 vehicles; these sales
had ranked him seventh within Respondent 's newly
expanded 33-man sales force , while giving him sixth
rank , once more , with respect to monthly gross
profit produced. While in Respondent 's hire , Steel-
man had won a number of monthly sales contests,
inter alia , he had won a gold watch, which Pre-
sident Boeckmann had presented , for having sold
29 cars during August 1968-the missing month in
Respondent's several monthly sales summary
records produced herein.
In short , the present record-considered in totali-
ty-clearly calls for a factual conclusion that, so far
as Respondent 's management was concerned , Steel-
man was deservedly considered competent , produc-
tive, and reliable. By way of further example: When
Used-Car Sales Manager Boggio was designated to
When Steelman was dismissed, following Respon-
dent 's November 20 managers ' meeting , Castagna
cited "interfering with management and agitating"
as constituting Respondent's reasons. Clearly, how-
ever, this reference to Steelman's purported "agita-
tion" did not concern his sympathetic posture or
conduct related to complainant Union's reactivated
organizing campaign Within his brief, General
Counsel concedes that Respondent's defense,
rather , derives from its contention that Steelman
was a chronic complainer, who demoralized
Respondent's sales force.
Nevertheless, during their final conversation-so
the record shows-Respondent's general sales
manager cited merely a single instance concerning
Steelman's purported "interference" and
"agitation" directed toward management or fellow
salesmen-one which had purportedly distressed
Glenn Williams, his fellow used-car salesman and
office partner. (On the occasion in question, Wil-
liams had been drafting certain necessary papers re-
garding a prospective "camper" sale, Steelman had
purportedly volunteered doubts that his office
partner's proposed sale terms would win manage-
ment's concurrence.) While a witness herein, Con-
gelos claimed-though he could not recall Castag-
na's reference to the matter-that William, visibly
disturbed, had registered a strong complaint,
directly with him, regarding Steelman's conduct.
Previously, however, Williams had testified
herein-pursuant to General Counsel's call-that
his "complaint" had been made to Steelman, Used-
Car Manager Boggio , and another salesman; he de-
nied discussing, or being queried about, Steelman's
conduct by Congelos or any of Respondent's other
management personnel. (When queried regarding
his relationship with Steelman, Williams declared
that they had known each other some 10 or 12
years, and that their relationship was friendly.) The
specific incident cited had occurred some time be-
fore Steelman's discharge, during early November;
I credit Williams' testimony that he personally had
never discussed it with Congelos or with Respon-
dent 's management representatives other than
Used-Car Manager Boggio, noted. So far as the
credible record shows, further, no management
spokesman had mentioned the matter to Steelman
before his discharge.
The present record, considered in totality,
strongly suggests that-apart from purported com-
plaints regarding his conduct-Steelman was
precisely the type of salesman Respondent's
management valued . While a witness , President
Boeckmann declared, generally, that:
In our type of establishment we have to look
for a well-rounded salesman , a man that can be
GALPIN MOTORS, INC. 473
work out new shift schedules for Respondent's
used -car salesmen-which management proposed
to institute when the firm 's new used -car facility
opened-Steelman was requested to work with him.
During the morning of November 20, the day of his
discharge , Steelman had voluntarily reported for
work 4 hours early , on his own time , and had
helped move various vehicles to Respondent's new
lot. (Late that day, following his discharge,
Respondent 's management had offered Steelman
$25 pay for this extra work . He had , however,
refused it .) Upon this record , Respondent would
not-presumably-contest a determination that
Steelman 's supervisors considered him a com-
petent , knowledgeable salesman . Certainly, Pre-
sident Boeckmann 's decision to rehire him in July,
following his April 1968 termination , would seem
to reflect reliance on a belief that his services
would prove valuable.
Despite this , Respondent seemingly contends
now that-particularly following his rehire-Steel-
man's personal relationship with some of his fellow
salesmen became strained ; that complaints were
made regarding his conduct ; and that these com-
plaints "created " such serious problems that his
termination was considered necessary . Within his
brief, Respondent's counsel has put the matter thus:
The Company had had many problems with
Steelman relative to his demeanor and his as-
sociation with the other salesmen . The uncon-
tradicted evidence shows that he would inter-
fere with the operation of the managers, where
he had no business , and that he decreased the
morale of other men.
Consistently with this contention , President
Boeckmann testified that he had received
somewhat generalized complaints regarding "a
man's" purportedly questionable behavior from two
salesmen , Don Pittman and Dave Reza , specifically:
according to Boeckmann , these men were com-
plaining about Steelman's conduct . Pittman, so
Boeckmann testified, had denounced Steelman
broadly for displaying officious curiosity , complain-
ing, and demoralizing fellow salesmen ; Reza, ac-
cording to Respondent's president , had described
him, generally , as "nothing but a troublemaker"
who had previously had "run -ins" with two or three
salesmen . No specific details, however, seem to
have been proffered by these complainants.
Respondent 's president could not " pick a date" for
Pittman 's purported complaint; he recalled Reza's
merely as made during late October or early the
following month . ( Pittman 's name, I note , does not
appear on any of Respondent 's monthly sales
rosters during the period with which we are now
concerned . Conceivably, some other salesman may
have been designated ; the name "Pittman" may
represent a reporter 's or transcriber 's mistake. I
have given President Boeckmann the benefit of this
doubt .) While testifying regarding Steelman's con-
duct, however, Congelos was more specific. He re-
ported Williams' complaint, previously noted, plus
a complaint by Salesman Sol Season , wherein Steel-
man was likewise charged with having made
deprecatory comments regarding a sales deal which
the complainant was preparing for managerial con-
currence . These four complaints were , reportedly,
considered by Respondent 's management team dur-
ing their November 20 meeting.
Regarding these complaints , however , this trier
of fact notes- first-that Respondent 's president,
according to his testimony , did not press " Pittman"
or Reza for details regarding Steelman 's purpor-
tedly questionable conduct . Nor does the record
show that Boeckmann tried to determine , himself,
whether their complaints had any factual basis.
Certainly, Respondent 's president did not query
Steelman regarding them . He did not-so I find-
request Congelos to make inquiries . Respondent
makes no present contention that Season's com-
plaint was ever discussed with Steelman . Regarding
the Williams matter , management 's sole comment
seems to have been made when Steelman was ter-
minated ; Congelos' purported recollection that he
spoke with Steelman regarding Williams' com-
plaint , within a day after the latter 's report,
deserves no credence . (The record suggests that
Reza may have registered some "half dozen"
further complaints with Johnson-both while the
latter was serving as Respondent 's used-car sales
manager and thereafter-that Steelman had been
guilty of "skating" him. By this , Reza presumably
meant-so Johnson testified-that Steelman had
taken over some customer whom he had previously
contacted, or that Steelman had completed a sales
transaction which he (Reza) had first broached
with the customer concerned . The record shows,
however , that Johnson never contacted Steelman,
himself, regarding Reza 's complaints ; though his
testimony suggests that the last of these complaints
may have been referred to Congelos , nothing in the
present 'record would warrant a determination that
any such complaint was ever checked or verified.
Steelman , himself-during his direct testimony-re-
ported a conversation with Congelos and Boggio,
shortly before his discharge , during which he was
told that a sale recently consummated by him had
previously been "promised " to another salesman,
Linn Fuggetta ; when the situation was clarified-so
Steelman testified-he apologized and the matter
was closed. It does not appear to have been men-
tioned in connection with his discharge.)
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With matters in this posture , then , several con-
clusions seem warranted . First: Assuming , for the
sake of argument , that four verbal complaints re-
garding Steelman were really received , Respon-
dent 's management cannot now contend , persua-
sively , that they were considered serious enough,
when made , to warrant prompt investigation or to
call for reprimands . Second : Assuming , for the sake
of argument , that these complaints were finally re-
called and discussed during Respondent's
November 20 managers ' meeting , that discussion
seems to have been bottomed on two complaints
which lacked specificity , plus two which had never
been verified . Third : Assuming , for the sake of ar-
gument , that these complaints-despite their lack
of specificity or verification-had been deemed
worthy of consideration , Respondent 's manage-
ment , within my view, nevertheless had reasonable
grounds upon which questions could have been
raised regarding the motivations and reliability of
two complainants ; Reza and Season , both well-
qualified and competent salesmen , were known,
particularly by Congelos , as Steelman 's most for-
midable competitors for sales leadership , within
Respondent 's used -car department . Fourth: As-
suming , for the sake of argument , that Steelman
may really have questioned the soundness of cer-
tain "deals" which Williams and Season were
preparing for Congelos ' concurrence , the present
record would clearly support a conclusion that such
comments were made in Respondent 's business in-
terest ; they would have reflected Steelman 's belief
that the particular " deals" in question were
hazardous , or that they had not been "worked" suf-
ficiently to produce their maximum potential
profits. ( Respondent 's defensive presentation
herein-particularly President Boeckmann's
testimony-suggests a contention that management
had begun to notice similar questionable conduct
before Steelman 's April 1968 termination-and
that , when finally rehired , he had been warned,
therefore , to keep his "nose" out of other people's
business . The contention however-suggested dur-
ing Steelman 's cross-examination by Respondent's
counsel- lacks any reliable , substantial , or proba-
tive support . No specific charges of prior miscon-
duct have been proffered. And Steelman denied
that President Boeckmann-when rehiring him-
had admonished him, in so many words , to mind his
own business ; his denial is credited . The salesman
did concede that Boeckmann "might have " warned
him to keep his "nose " clean ; within context, how-
ever , such a comment would merely have connoted
a suggestion that Steelman would be well advised to
eschew personal conflicts with superiors , like the
verbal exchange with Billingsley which had
precipitated his April termination . I so find.) With
these considerations in mind , Respondent 's conten-
tion that Steelman was properly charged with job-
related derelictions, sufficiently serious to warrant
his termination , fails to persuade.
Respondent contends , however, that Steelman's
purported complaints and challenging comments
directed to fellow salesmen -which I am requested
to consider proven, despite Respondent 's failure to
produce witnesses other than Season , qualified to
provide direct, first -hand testimony which would
warrant a conclusion that such remarks were
made-demoralized Respondent 's sales force.
When, however, Congelos and Johnson were
requested to describe why such purported com-
ments would have demoralizing effects, neither
could proffer a persuasive rationale . (While a wit-
ness herein , Steelman volunteered a comment-dur-
ing cross -examination- that Respondent main-
tained a "wonderful" well-run store, which he
characterized as the "best store " he had ever
worked in, with a fine location, excellent service
department , and knowledgeable managers. He did
not impress me-despite the generalized charac-
terizations of President Boeckmann , Congelos, and
former Used-Car Manager Johnson herein- as con-
sistently malcontent.) True, Respondet's purported
complainants , Reza, Williams, and Season, were
described as momentarily upset and resentful of
Steelman 's conduct; Williams and Seasons so
described themselves. The dealership' s testimonial
presentation , however, will not-within my view-
support a conclusion that they were really "de-
moralized" thereby. President Boeckmann's
testimony that Steelman was "continually" running
down Respondent's business , thus "demoralizing"
his fellow salesmen , struck me as general , conclu-
sionary, and hyperbolic.
In this general connection, Respondent has
proffered considerable testimony that Steelman was
frequently seen going through various papers, deal-
ing with "deals" currently in process , while they lay
on Congelos' desk. Regarding this factual conten-
tion , however, little need be said. Steelman con-
ceded that he had, on occasion , gone through vari-
ous documents on Congelos ' desk while searching
for his own deals. The record reflects parallel
testimony by Congelos, however , that other
salesmen frequently have scanned documents on
his desk, while searching for their " deal" papers,
and-likewise-while searching for deals written by
other salesmen which might reveal "skating" so far
as they were concerned; such tolerated searches
would necessarily have required salesmen to can-
vass deals proffered by their fellow salesmen, as
well as their own. (In this connection, Ross and
GALPIN MOTORS, INC. 475
Williams testified, credibly, that they had checked
their "deals" while they were on Congelos' desk,
and that they had seen other salesmen , likewise,
going through Congelos' papers. Used-Car Manager
Boggio testified that when he was a salesman-be-
fore he became a manager-he had sometimes
scanned papers on Congelos' desk, looking for his
own deals-and, further, that he sometimes had
done so to determine whether other salesmen had
"skated" him. Additionally, Boggio conceded that
he has seen other used-car salesmen similarly occu-
pied for what he believes to have been similar
reasons.) Respondent contends that Steelman was
admonished to desist. The record shows, however,
that Respondent's other salesmen were "some-
times" similarly admonished; both Johnson and
Boggio so testified. Respondent's contention that
Steelman's conduct, when he canvassed Congelos'
documents, was-somehow-more gross, or more
reprehensible, smacks of puffery; this trier of fact
has not been persuaded. And Respondent's further
contention that Steelman's conduct-since it sup-
posedly transgressed tolerable limits-constituted a
violation of company policy sufficiently serious to
warrant his discharge, merits characterization,
therefore, as pretextual. I so find.
Steelman had-so the record shows-defied
Respondent's management by defending his fellow
salesmen's right to attend complainant Union's
November 13 meeting. Thereafter, he-together
with Ruffino, Ross, and others-had, to Respon-
dent's knowledge, attended that meeting. His
discharge followed, within a week, despite Respon-
dent's previously demonstrated regard for his com-
petence-and despite management's then projected
expansion program for used-car salesmen. With
matters in this posture, Respondent has not-within
my view-sustained its contention that Steelman
should properly be considered chargeable with job-
related derelictions sufficiently reprehensible to
warrant his discharge. This trier of fact is per-
suaded, rather, that Respondent's management
would have tolerated Steelman's purported "per-
sonality conflict" with Congelos (noted by John-
son), together with his purportedly abrasive com-
ments, criticism, or complaints-because of his
recognized competence and demonstrated sales
productivity-but for management's knowledge re-
garding his professed union sympathies. I am
satisfied that, for Respondent's management, Steel-
man's demonstrated support for complainant
Union's campaign, manifested on November 13 and
14, consituted the final straw. And since Respon-
dent's discharge decision-with respect to Steelman
particularly-would not have been reached, within
my view, but for considerations which the statute
proscribes, his termination must necessarily be con-
sidered violative of law.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's course of conduct described in sec-
tion III, above-since it occurred in connection
with Respondent's business operations, described in
General Counsel's conplaint and concededly
described correctly therein-had, and continues to
have, a close, intimate, and substantial relation to
trade, traffic, and commerce among the several
States, absent correction, such conduct would tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since I have found that Respondent engaged in
and continues to engage in certain unfair labor
practices which effect commerce, I shall recom-
mend that it be directed to cease and desist
therefrom, and to take certain affirmative action,
including the posting of appropriate notices,
designed to effectuate the policies of the Act, as
amended.
Specifically, since I have found that Respondent
violated Section 8(a)(1) and (3) of the statute
through the discriminatory terminations of Robert
A. Ruffino, Alexander Ross, and Sol S. Steelman, I
shall recommend that Respondent be required to
offer them immediate and full reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed. It will be recom-
mended further that Respondent be required to
make these individuals whole for any pay losses
which they may have suffered, because of the dis-
crimination practiced against them, by paying each
of them a sum of money equal to the amounts
which he would have earned as wages, salary, or
commission, between the date of his discharge and
the date of his reinstatement, less his net earnings
during such period. Backpay for each salesman
designated should be computed by calendar quar-
ters, pursuant to the formula which the Board now
uses. F. W. Woolworth Company, 90 NLRB 289. In-
terest thereon should likewise be paid, computed at
6 percent per year. See Isis Plumbing & Heating
Co., 138 NLRB 716, in this connection.
In the light of the foregoing findings of fact, and
upon the entire record in this case, I make the fol-
lowing:
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW 1. Cease and desist from:
(a) Discouraging salesmen from becoming or
remaining members of International Association of
Machinists , District Lodge 94 and its affiliated
Local Lodge 2327, or from participating in union
or other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion, by discharging them, or by discriminating in
any other manner with respect to their hire or
tenure of employment, or any term of condition of
their employment, except as authorized under Sec-
tion 8(a)(3) of the Act, as amended.
(b) Interfering with, restraining, or coercing em-
ployees-by discharges, by interrogation with
respect to their union membership or activities, by
threats of reprisal because of their participation in
union activity, by statements reasonably calculated
to convey an impression that their union activities
were under surveillance, by deliberately scheduling
employee meetings at times which would conflict
with previously scheduled union organizational
meetings for the purpose of interfering with the
rights of its salesmen to attend such union
meetings , or by any like or related conduct-with
respect to their exercise of rights which the Na-
tional Labor Relations Act, as amended, guaran-
tees.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act, as
amended:
(a) Offer Robert A. Ruffino, Alexander Ross,
and Sol S. Steelman immediate and full reinstate-
ment to their former or substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, and
make them whole for any pay losses which they
may have suffered by reason of the discrimination
practiced against them, consistently with the
requirement set forth within The Remedy section of
this Decision.
(b) Notify Robert A. Ruffino, Alexander Ross,
or Sol S. Steelman, if presently serving in the
Armed Forces of the United States of their right to
full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(d) Post at its place of business in Sepulveda,
California, copies of the attached notice marked
1. Galpin Motors, Inc., an employer within the
meaning of Section 2(2) of the Act, is engaged in
commerce and business activities which affect com-
merce within the meaning of Section 2(6) and (7)
of the Act, as amended.
2. International Association of Machinists, Dis-
trict Lodge 94 and its affiliated Local Lodge 2327,
are labor organizations within the meaning of Sec-
tion 2(5) of the Act, as amended, which admit cer-
tain employees of Galpin Motors, Inc., to member-
ship.
3. Respondent herein-by questioning salesmen,
both directly and indirectly, regarding their union
membership and activities; by declaring that they
would be required to meet higher or stricter stan-
dards of performance, or that they would meet with
reprisals, should they continue activity in complai-
nant Union's behalf; by volunteering statements
reasonably calculated to convey the impression that
their union activities had been or were under sur-
veillance; and by making threats of discharge, or
statements that salesmen had been discharged
because of their union membership or activity-has
interfered with, restrained, and coerced its em-
ployees with respect to their exercise of rights
statutorily guaranteed. Thereby, Respondent did
engage in and continues to engage in an unfair
labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act, as amended.
4. Respondent, when it discharged Robert A.
Ruffino, Alexander Ross, and Sol S. Steelman
because of their support for, or activities on behalf
of, complainant Union herein, discriminated, and
continues to discriminate, with regard to the hire
and tenure and terms and conditions of employ-
ment of its employees, thus discouraging their
union membership and their participation in con-
certed activities for mutual aid or protection.
Thereby, Respondent has engaged in and continues
to engage in unfair labor practices affecting com-
merce within the meaning of Section 8(a)( 1) and
(3) and Section 2(6) and (7) of the Act, as
amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of
law, and upon the entire record in the case, it is
recommended that the Board, pursuant to Section
10(c) of the National Labor Relations Act, as
amended, order that Respondent, Galpin Motors,
Inc., its officers, agents, successors, and assigns,
shall:
GALPIN MOTORS, INC.
"Appendix."' Copies of said notice, on forms pro-
vided by the Regional Director for Region 31, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees 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.
(e) Notify the Regional Director for Region 31,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith 2
' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 31, in writing, within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question our salesmen, directly
or indirectly, regarding their union member-
ship or activities.
WE WILL NOT interfere with, restrain, or
coerce our salesmen, in their exercise of rights
which the National Labor Relations Act
guarantees: By declarations that they will be
required to meet higher or stricter standards of
job performance, or that they will meet with
reprisals, should they continue their support
for International Association of Machinists,
District Lodge 94 and its affiliated Local
Lodge 2327; by statements calculated to con-
vey the impression that their union activities
have been, or currently are, under surveillance;
by threats of discharge; or by statements that
salesmen have been discharged because of
their union membership or activity.
WE WILL NOT discourage membership in or
activity on behalf of International Association
of Machinists, District Lodge 94 or its af-
477
filiated Local Lodge 2327, or any other labor
organization, by discriminating in regard to the
hire or tenure of employment of any of our
employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights which the National Labor
Relations Act guarantees.
WE WILL offer the employees named below
immediate and full reinstatement to their
former or substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges, and make them whole for
any pay losses which they may have suffered
by reason of the discrimination practiced
against them.
Robert A. Ruffino
Alexander Ross
Sol S. Steelman
WE WILL notify these men, if presently serv-
ing in the Armed Forces of the United States,
of their right to full reinstatement, upon appli-
cation, in accordance with the Selective Service
kct and the Universal Military Training and
Service Act, as amended, after discharge from
the Armed Forces.
All of our employees are free to become or
remain members of International Association
of Machinists, District Lodge 94 and its af-
filiated Local Lodge 2327, or any other labor
organization, or to refrain from becoming or
remaining members thereof, except to the ex-
tent that such rights may be affected by an
agreement requiring membership in a labor or-
ganization, authorized in Section 8(a)(3) of
the National Labor Relations Act.
GALPIN MOTORS, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Federal Building, Room 12100,
11000 Wilshire Boulevard, Los Angeles, California
90024, Telephone 824-7357.