Graham Ford, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1968

172 N.L.R.B. 313 (N.L.R.B. 1968)

GRAHAM FORD, INC.
Graham Ford , Inc. and Capital District Automobile
Salesmen 's Association . Case 3-CA-3296
June 26, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On April 16, 1968, Trial Examiner James V.
Constantine issued his Decision in the above-enti-
tled proceeding, finding that Respondent had en-
gaged in and was engaging in certain unfair labor
practices in violation of the National Labor Rela-
tions Act, as amended, and recommending that
Respondent cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. He further found
that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended dismissal as to them. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed.' The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings,2 conclusions, and recommenda-
tions3 of the Trial Examiner with the modifications
noted below.'
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 herein
modified, and hereby orders that Respondent,
Graham Ford, Inc., Schenectady, New York, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recom-
mended Order.
' Respondent takes exception to the exclusion by the Trial Examiner of
testimony of certain conversations between Board Chairman Graham and
President Helfrich in which they expressed dissatisfaction because the sales
force as a whole was not performing as expected by management and offi-
cials of the Ford Motor Company . We have considered the Respondent's
offer of proof and find that even if admitted into evidence and credited, the
313
result reached , on the record as whole , would not be altered . Although per-
haps the better practice would have been to admit the excluded testimony,
we find Respondent was not prejudiced by the Trial Examiner 's rejection of
the proffered testimony.
i Absent exceptions thereto, we adopt pro forma the Trial Examiner's
findings of no violations regarding the picture-taking incident and Hel-
frich 's April 1967 statement to Doin that other employees who sought to
form an association or union had "gotten their butts burned pretty badly
11
In his remedy, the Trial Examiner recommended that the employees
found to have been unlawfully discharged be made whole from the date of
discharge until the date of reinstatement In accord with usual practice, we
hereby amend the remedy to require that the dischargees be made whole
from the date of discharge until the date of unconditional offer of reinstate-
ment The record indicates that nine of the employees have received such
unconditional offers
4 We agree with the Trial Examiner 's finding that Respondent 's refusal to
bargain with the Union violated Section 8(a)(5) and (1) of the Act An
order directing the Respondent to bargain with the Union, upon request, is
necessary to remedy the effects of its other unfair labor practices The
record clearly shows that the Union represented a majority of the em-
ployees in the appropriate unit when the Respondent initiated its course of
unfair labor practices aimed at destroying this support Therefore, we shall
order the Respondent to bargain , upon request , with the Union both to
remedy its violation of Section 8(a)(5) and its violations of Section 8(a)(1)
of the Act See Bryant Chucking Grinder Company, 160 NLRB 1526, 1530,
enfd . 389 F 2d 565 (C.A 2); Fabricators, Incorporated, 168 NLRB 140,
141
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is
an unfair labor practice case instituted against the
above-named Respondent, Graham Ford, Inc., pur-
suant to Section 10(b) of the National Labor Rela-
tions Act, 29 U.S.C. 160(b). It was generated on
August 28, 1967, by a charge filed by Capital Dis-
trict Automobile Salesmen's Association, the
Charging Party.
A complaint based on the above-mentioned
charge was issued on October 3, 1967, by the
General Counsel of the National Labor Relations
Board (herein called the Board), through the Re-
gional Director for Region 3 (Buffalo, New York).
That complaint, as amended at the hearing, in sub-
stance alleges that Respondent has violated Section
8(a)(1), (3), and (5), and that such conduct affects
commerce within the meaning of Section 2(6) and
(7) of the Act. Respondent has answered admitting
some facts but denying that it committed any unfair
labor practices.
Pursuant to due notice this case came on to be
heard, and was tried, before me at Albany, New
York, on January 17 and 18, 1968. All parties were
represented at and participated in the hearing, and
had full opportunity to adduce evidence, examine
and cross-examine witnesses , submit briefs, and
offer oral argument. Briefs have been received from
Respondent and General Counsel. I hereby correct
the transcript at page 52, line 13, by substituting
the word "precluding" for the word "permitting."
Upon the entire record in this case , including the
stipulations of the parties, and from my observation
of the witnesses, I make the following:
172 NLRB No. 50
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. AS TO JURISDICTION
Respondent, a New York corporation, is engaged
at Schenectady, New York, in selling and distribut-
ing automobiles "and related products." During the
year preceding the issuance of the complaint, it
sold and distributed products valued in excess of
$500,000 and received goods valued in excess of
$50,000 directly from points located outside the
State of New York. I find that Respondent is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that it will effectuate
the purposes of the Act to assert jurisdiction over
Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Capital District Automobile Salesmen's Associa-
tion, herein called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This case involves the following issues:
(1) Whether Respondent coercively interrogated
employees concerning their union membership, ac-
tivities, and desires.
(2) Whether Respondent coercively took pic-
tures of employees while they were engaged in
picketing Respondent.
(3) Whether Respondent discharged the follow-
ing 10 employees because they joined or assisted
the Union or engaged in union and other concerted
activities:
Ronald Bottieri Joseph Hamilton
Leo Chalachanis Milton Hewett
John Delaney Richard Nolan
Ernest Doin Amedeo Piccolo
Thomas Guy David Robideau
(4) Whether Respondent lawfully refused to
recognize and bargain with the Union.
(5) Whether the strike of Respondent's em-
ployees begun on August 26, 1967, is an unfair
labor practice strike. However, I do not pass on this
issue as all striking employees had returned to work
by the time the hearing was conducted by me.
A. The Discharge of Ernest Doin
The automobile agency operated by Respondent
was formerly owned and operated by Webster Mo-
tors Sales. About October 7, 1966, Webster sold
the business to Respondent, which has owned and
operated it since that date. That business is
designated as the agency or dealership herein.
Doin, the Union's president, was hired by
Webster Motors on October 17, 1966, as a new-
and used-car salesman. He had been a member of
the Union since April 1965. About June 1967,1 the
Union began to organize the employees of the
agency. During this campaign Doin signed a union
authorization card. See General Counsel's Exhibit
2(a). He also distributed about five cards to fellow
employees in June and July.
About August 23 Doin attended a preview show-
ing of new Ford cars at the Concord Hotel at Mon-
ticello, New York, in the Catskills. Upon arriving
there at 3 p.m., he checked into a room at the
hotel. About 7 p.m., Respondent's chairman of the
board, Eugene D. Graham, spoke to Doin in the
hotel's dining room. After mentioning that he heard
rumors that a union was being formed at Graham
Ford, Graham asked Doin whether this was true.
Doin gave a noncommittal answer. Then Graham
said that if a union was started at Graham Ford he,
Graham, would pull out of Schenectady. Graham's
contrary testimony is not credited.
On the next day, August 24, Doin attended a
meeting conducted by the Ford Motor Company at
which it introduced its new 1968 Ford models. Fol-
lowing this, about 3 p.m. Doin left the hotel and
returned to the agency in Schenectady, arriving
there in the late afternoon, but could not com-
mence work as the agency was closed. This was
unusual, as the agency did not normally close unitl
9 P.M.
Upon arriving for work the following day, August
25, Doin was told by General Sales Manager James
Neely to proceed to the office of Harold Helfrich,
Respondent's president. When Doin went to Hel-
frich's office the latter handed Doin a letter (G.C.
Exh. 3) dated August 24 and reading, in material
part, as follows:
Ernest Doin
I hereby accept your resignation from Gene
Graham Ford , Inc., as per conversation with
Mr. Harold Helfrich, President of Gene
Graham Ford, Inc., as you stated at 11:30 p.m.
the 23rd day of August at the Concord Hotel,
N.Y.
GENE GRAHAM FORD,
INC.
/s/ Harold Helfrich
HAROLD HELFRICH,
PRESIDENT
However, Doin had not resigned; so he refused to
accept the letter. Thereupon Helfrich said that
Doin was fired anyway. At this point Doin left the
premises and went to his attorney's office.
' All dates mentioned hereafter refer to 1967 except where otherwise ex-
pressly noted
GRAHAM FORD, INC. 315
After talking to his attorney , Doin on the same
day, August 25, returned to the agency with
authorization cards signed by 10 of Respondent's
salesmen . It is undisputed that an appropriate unit,
agreed upon by the parties at the hearing , is com-
posed of 14 salesmen . Handing these 10 cards to
President Helfrich , Doin gave Helfrich 24 hours to
bargain with the Union over wages, hours, "and so
forth ." Placing the cards in an envelope , Helfrich
replied that he would turn them over to his attor-
ney. Thereupon , Doin left . However , at no time
since has anyone on behalf of Respondent commu-
nicated with Doin concerning the request for recog-
nition.
"Direct evidence of a purpose to violate the
statute is rarely obtainable" in connection with an
employee 's discharge . Hartsell Mills v . N.L.R.B.,
111 F.2d 291 , 293 (C.A. 4). It is therefore necessa-
ry to scan the record to ascertain the true reason
behind an employee 's release from employment.
Radio Officers' Union v. N.L.R.B., 347 U.S. 17, 50.
It is my opinion, and I find , that Doin did not
resign . This is because I credit his testimony that he
did not resign . Further , I find that he was
discharged , and that he was dismissed for being a
member and officer of the Union and for activity
on behalf of the Union . This ultimate finding is
based on the entire record and the following which
I find as facts:
1. Doin openly espoused the Union , actively sol-
icited members on its behalf, and served as its pre-
sident . "Obviously the discharge of a leading union
advocate is a most effective method of undermining
a union." N.L.R.B. v. Longhorn Transfer Service,
346 F.2d 1003, 1006 (C.A. 5).
2. Respondent was actually aware of Doin's
union activity . I do not credit Respondent 's contra-
ry evidence . In any event I infer knowledge of such
activity from the fact , which I find, that Respon-
dent 's agency is a small plant . Angwell Curtain Co.,
Inc. v . N.L.R.B., 192 F.2d 899 , 903 (C.A. 7); New
French Benzol Cleaners and Laundry, Inc., 139
NLRB 1176, 1179, fn. 10; N.L.R.B. v . Joseph An-
tell, Inc., 358 F . 2d 880, 883 (C.A. 1). But see
Dubin-Haskell Lining Corp. v. N.L.R.B., 375 F.2d
568, 574, where the Court of Appeals for the
Fourth Circuit casts serious doubt on the validity of
the Board 's small plant rule.
3. Doin was abruptly discharged without prior
warning or notice. "The abruptness of a discharge
and its timing are persuasive evidence as to motiva-
tion ." N.L.R.B. v. Montgomery Ward & Co., 242
F.2d 497, 502 (C.A. 2), cert. denied 355 U. S. 829;
N.L.R.B. v. L. E. Farrell Co., 360 F.2d 205, 208
(C.A. 2). Doin was discharged shortly after
Respondent learned of his union activity.
4. The manner of discharge is significant . Thus, I
find that Doin had not only not been reprimanded
or warned for any alleged poor sales performance,
but he was sent to a brief training course at the
Concord Hotel. E. Anthony & Sons, Inc. v.
N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.); El Paso
Manor, Inc., 164 NLRB 597, 598. No reason is as-
signed in the record why Doin should be directed to
attend a training course on August 23 and 24 only
to be discharged on August 25. N.L.R.B. v. L. E.
Farrell Co., 360 F.2d 205 (C.A. 2); N.L.R.B. v.
Melrose Processing Co., 351 F.2d 693 (C.A. 8).
5. Respondent entertained antiunion hostility. Its
contrary evidence is not credited. This in itself is
not an unfair labor practice. N.L.R.B. v. Threads,
Inc., 308 F.2d 1, 8 (C.A. 4); N.L.R.B. v. Audio In-
dustries, 313 F.2d 858 (C.A. 7). But it is an ele-
ment which may be appraised in evaluating the
reason why an employee was terminated. N.L.R.B.
v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5). Ma-
phis Chapman Corp. v. N.L.R.B., 368 F.2d 298, 304
(C.A. 4).
6. Only union adherents were discharged, while
the four salesmen who did not sign union authoriza-
tion cards were retained. Nachman Corporation,
144 NLRB 473. Respondent contends that it laid
off all the poor and lackadaisical performers, 10 in
number, and retained the 4 good performers. But
no evidence was adduced to show the sales records
of these employees. Hence, I find that this defense
has not been established. Sterling Aluminum Co. v.
N.L.R.B., 391 F.2d 713, 723 (C.A. 8).
This does not mean that because this defense has
failed that I have shifted the burden of proof from
the General Counsel to the Respondent. To reject a
defense will not constitute affirmative evidence to
sustain the General Counsel's onus of establishing
an unlawful discharge. N.L.R.B. v. Joseph Antell,
Inc., 358 F.2d 880, 883 (C.A. 1); Guinan v.
Famous Players, 167 N.E. 235, 243 (Mass.);
N.L.R.B. v. D'Armigene, Inc., 353 F.2d 406, 411
(C.A. 2). The ultimate finding that Doin was dis-
criminatorily discharged has emerged from my find-
ing that the General Counsel has sustained his bur-
den of proof by a fair preponderance of the
evidence. Cf. N.L.R.B. v. Dinion Coil Company,
Inc., 201 F.2d 484 (C.A. 2), for a valuable analysis
upon the function of a fact finder in connection
with this burden.
B. The Discharge of Joseph Hamilton
Hamilton was hired as a salesman by Respondent
about March 1967. In early August 1967 he signed
a union authorization card. See General Counsel's
Exhibit 2(b).
On August 23 Hamilton went to the Concord
Hotel in the Catskills to attend a preview of Ford
1968 cars. He left the Concord about 2 or 3 p.m.
on August 24 and proceeded directly to the agency
in Schenectady, arriving there about 7 p.m. But he
found the place closed, although this was earlier
than the normal closing hour.
The following day, August 25, Hamilton reported
for work about 8:15 a.m . Upon arriving he was told
management was holding a meeting upstairs. So he
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
waited in the showroom . Soon General Sales
Manager James Neely invited Hamilton to go up-
stairs to Helfrich 's office . He did so. In the room
with Hamilton were Neely , President Helfrich, and
Used-Car Manager Don Maynard . As soon as
Hamilton entered the room , Helfrich handed him a
letter (G.C. Exh. 5), in relevant part reciting:
August 24, 1967
Joseph Hamilton
The Company went to great expense to have
you attend a mandatory meeting for the show-
ing of the 1968 Fords at the Concord Hotel.
Due to this failure to comply with company
rules and regulations and your failure to attend
this meeting , you are hereby discharged.
GENE GRAHAM FORD,
INC.
/s/ Harold Helfrich
HAROLD HELFRICH,
PRESIDENT
Helfrich 's only comment as he served Hamilton
with the letter was , "I'm sorry I have to do this."
Sometime in early September, while Hamilton
and Neely were at the bar in Verudo 's Restaurant
and Bar , Neely asked Hamilton how the latter
could be so stupid as to sign a union card consider-
ing the amount of money Hamilton was making. I
find this is not an unfair labor practice.
As to Hamilton, I find that he was discharged for
being a member of the Union, and that the reasons
mentioned in the letter discharging him are a pre-
text. This ultimate finding is based on the entire
record and the following subsidiary findings:
1. Respondent was cognizant of Hamilton's
union membership . Its contrary evidence is not
credited . In any event, the Board 's small plant rule
is operative , so that knowledge of such membership
may be imputed to Respondent.
2. Respondent was opposed to unions . While this
alone falls short of establishing a discriminatory
motive, it is a factor which may be considered in
determining the true reason underlying the
discharge of Hamilton . Maphis Chapman Corp. v.
N.L.R.B., 368 F . 2d 298 , 304 (C.A. 4).
3. Only members of the Union , 10 in all, were
discharged on August 24, whereas all nonunion em-
ployees , 4 altogether , were retained . While not con-
clusive , this fact also sheds light upon the issue of
the real reason prompting the termination of
Hamilton. This is particularly relevant when no
specific evidence was presented-other than a
general conclusion that those not discharged were
better salesmen-indicating in what respects all the
union men without exception were inferior and the
nonunion men uniformly were so superior that they
were retained . Sterling Aluminum Co. v. N.L.R.B.,
391 F.2d 713, 723 ( C.A. 8). In my opinion, Star
Paper Tube , Inc., 135 NLRB 344, upon which
Respondent relies, supports the foregoing result,
because specific evidence was adduced in the Star
Tube case , and it was not decided on general con-
clusions as in the instant case.
4. The record is devoid of evidence that Hamil-
ton did not attend the meeting for the showing of
the 1968 Fords . In addition , I credit Hamilton that
he attended . Further , the discharge letter (G.C.
Exh. 5 ) accuses Hamilton of "failure to comply
with company rules and regulations ," but the
record is barren of evidence identifying those rules
and regulations and the manner in which Hamilton
breached them . I find that these accusations are
false , and that falsity of accusation is relevant in
ascertaining the true motive behind a discharge.
"Affirmative proof , however , that the reason given
was false warrants the inference that some other
reason was concealed ." N.L.R.B . v. Joseph Antell,
Inc., 358 F . 2d 880 , 883 (C .A. 1). Accord: Sterling
Aluminum Co . v. N.L.R .B., 391 F . 2d 713, 723
(C.A. 8). I draw the inference that another reason,
that is, Hamilton 's union membership , was being
concealed . Shattuck Denn Mining Corp. v.
N.L.R.B ., 362 F . 2d 466 , 470 (C.A. 9).
5. As in the case of Doin , the timing and manner
of discharge are significant . Thus, Hamilton was
abruptly discharged , without prior warning, during
the workweek and shortly after he signed a union
authorization card.
6. Of course an employer may lawfully terminate
an employee for cause ( N.L.R.B. v. Covington Mo-
tor, 344 F .2d 136 , 138 (C .A. 4), Klate Holt Co.,
161 NLRB 1606, 1611-12 ), and the Board may not
pass upon or review in this proceeding the harsh-
ness or severity of discipline when cause exists for a
discharge . N.L.R.B . v. United Parcel Service, 317
F.2d 912 , 914 (C.A . 1); N.L.R.B . v. Ace Comb Co.,
342 F.2d 841 , 847 (C . A. 8); Shattuck Denn Mining
Corp . v. N.L.R.B., 362 F . 2d 466 , 470 (C.A. 9); In-
terboro Contractors , Inc., 157 NLRB 1295, 1301.
But "the fact that a lawful cause for discharge is
available is no defense where the employee is ac-
tually discharged because of his union activities."
N.L.R.B . v. Ace Comb Co., supra at 847; N. L.R.B.
v. Symons Mfg., Co ., 328 F . 2d 835 , 837 (C.A. 7).
Therefore it is sufficient to find that a discharge
was prompted discriminatorily and that a substan-
tial or motivating reason behind the discharge was
the employee 's union activity , despite the fact that
other reasons may exist. N.L.R.B. v. Whitin
Machine Works, 204 F . 2d 883 , 885 (C .A. 1). I find
that the substantial and motivating reason leading
to Hamilton 's discharge is his union membership.
Cf. N.L.R.B. v. D'Armigene , Inc., 353 F.2d 406,
409 (C.A. 2).
GRAHAM FORD , INC. 317
C. The Discharge of Amedeo Piccolo
Another of Respondent 's salesmen is Amedeo2
Piccolo , who started working as such in October
1966. In early August 1967 , he signed a union
authorization card . See General Counsel 's Exhibit
2(c). Piccolo is also vice president of the Union.
Late in the afternoon of August 23 Piccolo ar-
rived at the Concord Hotel to attend a showing of
new Fords . On August 24 General Sales Manager
James Neely spoke to Piccolo in the lobby of the
Concord Hotel . During this conversation Piccolo
asked Neely what the matter was with Respondent's
management . Neely responded that "management
knows that there has been a move to organize," and
asked Piccolo if Piccolo knew "who was starting
it." Piccolo gave an evasive answer , and told Neely
"not to make anyone a patsy or myself and avoid
adverse publicity on this issue ." Neely then said he
did not think the union organizing would get
anywhere.
Later that day, August 24, Piccolo attended the
new-car showing . When it closed in the afternoon
Piccolo checked out from the hotel and left for
Schenectady . At 8:30 the next morning , August 25,
he reported for work . As soon as he arrived
General Sales Manager James Neely instructed him
to go upstairs to President Helfrich 's office. When
Piccolo reached the office Neely handed Piccolo a
letter which Helfrich had just given to Neely. Hel-
frich remarked that he was sorry he "had to do it"
and added that he wanted to talk to Piccolo later.
No such talk occurred . In pertinent part this letter
reads as follows:
August 24, 1967
Amendeo Piccolo
Due to a misunderstanding of company rules,
regulations , and policies , your services at Gene
Graham Ford, Inc., are no longer required.
GENE GRAHAM FORD,
INC.
/s/ Harold Helfrich
HAROLD HELFRICH,
PRESIDENT
In its essential features Piccolo's discharge
matches that of Hamilton , and I so find . It is not
necessary to repeat here the manner in which the
two cases corres,ond . Additional findings, not
made in Hamilton s case, are pertinent in connec-
tion with Piccolo's release . They are:
1. Piccolo is vice president of the Union. I recog-
nize that union office neither confers immunity
from discipline by the employer ( Metals Engineer-
ing Co ., 148 NLRB 88, 90 ), nor insulates an em-
ployee from discharge for legitimate , nondis-
criminatory _ reasons. N.L.R.B. v. Park Edge
Sheridan eats, Inc., 341 F.2d 725 (C.A. 2);
Wellington Mill v. N.L.R.B., 330 F.2d 579, 586-587
(C.A. 4); Mitchell Transport, Inc., 152 NLRB 122,
123, set aside sub nom. Charles L. Hawkins v.
N.L.R.B., 358 F.2d 281 (C.A. 7); N.L.R.B. v. Ten-
nessee Packers, Inc., 390 F.2d 782, 786-787 (C.A.
6). However, I find that the predominant reason be-
hind Piccolo 's dismissal is his union office, mem-
bership, and activity. N.L.R.B. v. Tennessee
Packers, Inc., supra at 784. "Obviously the
discharge of a leading union advocate is a most ef-
fective method of undermining a union." N.L.R.B.
v. Longhorn Transfer Service, 346 F.2d 1003, 1006
(C.A. 5).
2. The document apprising Hamilton of his
discharge merely informs him that he misun-
derstood "company rules, regulations, and poli-
cies." Admittedly, no explanation of the precise of-
fenses with which he was charged was then or at
any other time asserted by Respondent to Piccolo.
The failure to give any explanation to an employee
when he is terminated warrants the inference-and
I draw it-"that the layoff was discriminatory."
N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275,
278 (C.A. 5); N.L.R.B. v. Plant City Steel Corp.,
331 F.2d 511 (C.A. 5).
3. It has been held that the "failure to give any
explanation" to an employee when he is terminated
justified an inference that the employer had
knowledge of the employee's union activities.
American Grinding & Machine Co., 150 NLRB
1357, 1358; Virginia Metalcrafters, Inc., 158 NLRB
958, 962. For this additional reason I find that
Respondent had knowledge of Piccolo's union ac-
tivity.
On the basis of the entire record, the findings
made in connection with the discharge of Hamilton,
and the additional three findings outlined in this
subsection, I find that Piccolo was discharged for
holding union office and for union membership and
activity , and that the ground alleged in his dismissal
notice is a pretext to disguise the true reason.
N.L.R.B. v. Borden Co., 392 F.2d 412, 415 (C.A.
5), is distinguishable in my opinion.
D. The Discharge of Leo Chalanchanis
Chalachanis was hired as a salesman by Respon-
dent in November 1966. About August 20 or 21 he
signed a union authorization card. See General
Counsel's Exhibit 2(d).
About August 23 Chalachanis attended the
preview of new Fords at the Concord Hotel. While
' This is the spelling of the signature on Piccolo's union authorization
card. In the complaint and the transcript Piccolo's first name is spelled
Amedio.
318 DECISIONS OF NATIONAL
at the hotel coffeeshop , General Sales Manager
James Neely spoke to him on August 24. In this
conversation Neely asked Chalachanis if the latter
had signed a union card . Chalachanis replied that
he had.
About 8:30 a.m. on August 25 Chalachanis re-
ported to work at the agency . Roughly an hour
later he was called to President Helfrich 's office up-
stairs . Helfrich , Neely , Sales Manager Don
Maynard , and Miss Mary Quinlin were present
when Chalachanis entered the room . As soon as he
came in Chalachanis was handed a letter (G.C.
Exh. 7) by Neely, but not a word was uttered by
Neely as he did so. This letter, in relevant part,
reads as follows:
Leo Chalachanis:
August 24, 1967
Due to your failure to comply with manage-
ment's direction and your failure to improve
your performance , your services here at Gene
Graham Ford, Inc. are no longer required.
GENE GRAHAM FORD,
INC.
/s/ Harold Helfrich
HAROLD HELFRICH,
PRESIDENT
Following this discharge the Union picketed
Graham Ford. Chalachanis participated therein.
The discharge of Chalachanis in my opinion was
substantially motivated by reason of his being a
union member , and I so find. Further, I find that
the reason assigned in the dismissal notice of Au-
gust 24 is a pretext to conceal the true reason.
These two ultimate findings are based on the entire
record and the following subsidiary findings:
1. Chalachanis signed a union authorization
card, and Respondent had knowledge thereof.
2. No prior warning had been given to
Chalachanis that his performance was unsatisfacto-
ry. In fact, it is difficult to comprehend why he was
sent to a short training course at the Concord Hotel
on August 23 and 24 only to be discharged on Au-
gust 25.
3. He was discharged abruptly during the work-
week.
4. No evidence was given to show just how his
performance was lagging , i.e., his sales for com-
parable periods were not described or even out-
lined at the hearing.
5. Timing is important. He was discharged not
long after he signed a union authorization card.
6. No explanation of the nature of his "failure to
improve ... performance" was given to him. This
failure to describe the nature of the dereliction
LABOR RELATIONS BOARD
leading to his dismissal warrants the inference-and
I draw it-that the layoff was discriminatory.
7. Finally, only union men were laid off-in fact,
the entire union membership at Respondent's agen-
cy was discharged. This too, while not conclusive,
sheds light in ascertaining the real reason for the
discharge.
E. The Discharge of Tom Guy
Tom Guy signed a union authorization card. See
General Counsel 's Exhibit 2(e). He was later
discharged by a letter (G.C. Exh. 8) dated August
24, 1967. Insofar as material it recites:
August 24, 1967
Tom Guy
Due to a misunderstanding of company rules,
regulations and policies, your services here at
Gene Graham Ford, Inc. are no longer
required.
GENE GRAHAM FORD,
INC.
/s/ Harold Helfrich
HAROLD HELFRICH,
PRESIDENT
Guy did not testify. If Guy's discharge is taken
out of context, it would seem that a prima facie case
has not been established that he was discriminatori-
ly discharged . But his case must be assessed in the
light of the whole record. So considered, I find that
"In all material respects , the discharge of [Guy] did
not differ from those of other employees found to
be discriminatees." American Grinding & Machine
Co., 150 NLRB 1357, 1358. Thus Guy was abruptly
discharged during the week by a letter merely ac-
cusing him of "misunderstanding of company rules,
regulations , and policies"; he signed a union card
not long before he was discharged; all the union
members among Respondent 's salesmen were
discharged on the same day; and all the nonunion
salesmen continued to hold their positions.
Accordingly, on the basis of the whole record, I
conclude and find that, in addition to the other nine
employees herein found to have been illegally
discharged, Guy was dismissed for his union activi-
ty, and that the ground for discharging him alleged
in the letter of August 24 to him is a pretext.
F. The Discharge of David Robideau
In March 1967 , Respondent hired Robideau as a
salesman. He signed a union authorization card
about 2 weeks before August 1967. See General
Counsel 's Exhibit 2(f).
GRAHAM FORD, INC. 319
About 3 or 4 p.m. on August 23 Robideau ar-
rived at the Concord Hotel in the Catskills to at-
tend a showing of 1968 Ford models. Later that
date , while Robideau was conversing with General
Sales Manager James Neely, the latter mentioned
to Robideau "as rumor has it a union is being
formed ... it will never work ... because the men
will never stick together ." While I find this shows
knowledge of union activity and displays union
animus , f find it is not coercive and, therefore, does
not violate Section 8 (a)(1) of the Act.
Robideau reported for work at 8:30 a.m. on Au-
gust 25. About 8:45 a.m., he observed employee
Ernest Doin proceeding downstairs . At the same
time General Sales Manager Neely beckoned
Robideau to come upstairs . So Robideau ascended
to President Helfrich 's office where he found Hel-
frich, Mary Quinlin, and Sales Manager Don
Maynard awaiting him. Soon Neely entered the
room . Then Helfrich gave Neely a letter and he in
turn handed it to Robideau. That letter (G.C. Exh.
9), dated August 24 , 1967, is addressed to David
Robideau and notifies him that
Due to your sales performance and the inabili-
ty to improve your sales as required of a good
salesman at Gene Graham Ford, Inc. your ser-
vices here are no longer required.
warned or criticized that his sales record was un-
satisfactory. Failure to warn has probative value.
N.L.R.B. v. Melrose Processing Co., 351 F.2d 693,
699 (C.A. 8); N.L.R.B. v. Whitin Machine Works,
204 F.2d 883, 887 (C.A. 1); N.L.R.B. v. Radcliffe,
et al. d/b/a Homedale Tractor & Equipment Co., 211
F.2d 309, 314 (C.A. 9); Virginia Metalcrafters, Inc.,
158 NLRB 958, 962.
4. No satisfactory explanation is given why
Robideau should be sent to the Concord Hotel on
August 23 and 24 for a short training course only to
be discharged on August 25. Nothing in the record
justifies a conclusion that Robideau did anything on
August 23 and 24 leading to his dismissal on Au-
gust 25.
5. Timing and manner of discharge are impor-
tant. Robideau was discharged precipitously, during
the week , a few days after signing a union card. In
addition, only union men were discharged while
nonunion men were retained.
6. When Robideau protested his discharge as un-
fair, Respondent said nothing in reply. Failure to
give an explanation under the circumstances is
some indicia "that the layoff was discriminatory."
N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275,
278 (C.A. 5). Cf. N.L.R.B. v. Plant City Steel Corp.,
331 F.2d 511, 515 (C.A. 5); N.L.R.B. v. Melrose
Processing Co., 351 F.2d 693, 699 (C.A. 8).
G. The Discharge of John J. Delaney
GENE GRAHAM FORD,
INC. In October 1966, Respondent hired John j.
Delaney as a salesman . On August 21, 1967, he
/s/ Harold Helfrich signed a union authorization card . See General
HAROLD HELFRICH,
PRESIDENT
Upon reading the letter Robideau protested, "I
don't think this is fair." But Neely merely shrugged
his shoulders , saying nothing in reply other than to
inquire if Robideau had a ride. At no time prior to
his discharge had Respondent expressed concern
about , or even mentioned, Robideau 's sales per-
formance . In fact Robideau spoke to Helfrich and
Neely on the night of August 24 at the agency,
which he found closed , but neither one at that time
indicated to Robideau that Robideau would be
discharged the next day.
Circumstances touching upon Robideau 's dismis-
sal point to the conclusion , and I find , that he was
removed from his employment because of his union
membership , and that the reasons mentioned in the
letter discharging him is a cloak to disguise the true
reason . These ultimate findings are based on the
whole record and the following subsidiary facts,
which I also find:
1. Robideau signed a union authorization card
and Respondent was cognizant of this.
2. Respondent displayed antiunion hostility.
3. Although the dismissal letter refers to "the in-
ability to improve your sales ," Robideau was never
Counsel's Exhibit 2(g). About 4 or 5 p.m. on Au-
gust 23 Delaney arrived at the Concord Hotel to be
present at the unveiling of the 1968 Ford models
scheduled for the next day. And he did attend the
new-car showing on August 24.
About 10:30 a.m. on August 25 Delaney re-
ported for work on the afternoon shift. As Delaney
approached the agency, employee Robideau waved
him away and told him not to go in. When Delaney
asked why, Robideau replied that Delaney was
going to be fired because "we are all being fired.
We who have evidently signed union cards."
Thereupon Delaney left and arranged for transpor-
tation home as he lived about 20 miles away and
would lose his company car when discharged. Then
he returned to the agency at approximately 1 p.m.,
the starting time of the afternoon shift.
When he entered the premises of the agency at 1
p.m. on August 25 Delaney went directly to
General Sales Manager Neely's office, where he
found Neely and Sales Manager Maynard. When
Delaney said to Neely, "I guess you've got
something for me," the latter replied, "Yes." At the
same time Neely handed Delaney a letter (G.C.
Exh. 10), dated August 24, 1967, and addressed to
John J. Delaney, reciting that:
The Company went to great expense to have
you attend a mandatory meeting for the show-
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing of the 1968 Ford at the Concord Hotel.
Due to this failure to comply with company
rules and regulations and your failure to attend
this meeting , you are hereby discharged.
GENE GRAHAM FORD,
INC.
/s/ Harold Helfrich
HAROLD HELFRICH,
PRESIDENT
After reading the letter Delaney told Neel, "you
know I attended. Does it make a difference ? ' Neely
answered , "No." To prove that he attended
Delaney produced a card admitting him to the Ford
preview . Although this card bore the name of a
salesman from Akron, Ohio, Neely refused to let
Delaney explain how or why it was used by Delaney
to attend the meeting . Then Delaney remarked that
"it stinks," declined an offer of a ride from Neely,
and left . At no time did Neely mention that
Delaney was absent from the Ford showing or that
Neely doubted that Delaney attended it.
Like the six other salesmen heretofore found to
be discriminatorily discharged , I find that Delaney
was terminated for signing a union card; and I
further find that the grounds mentioned in the
letter dismissing him are a pretext to mask the true
reason for his layoff. These ultimate findings flow
from, and are based on, the whole record and the
ensuing subsidiary facts , which I find:
1. Delaney signed a union card and Respondent
had knowledge thereof.
2. Respondent entertained antiunion hostility.
3. I credit Delaney that he attended the preview
of Fords on August 23 and 24, especially since it
would have been a simple matter to contradict him
by the records of Concord Hotel if Delaney had not
been there . Yet no such evidence was introduced
by Respondent . Hence , I find as false the statement
in Delaney 's dismissal notice that he did not attend
"this mandatory meeting ... for the showing of the
1968 Fords at the Concord Hotel ." The fact, which
I find , that Delaney 's admission card to this "man-
datory meeting" carried another person's name
tend to confirm , rather than disprove, that Delaney
attended that meeting.
Since a reason assigned for his discharge is false,
this warrants the inference , which I draw, that a dis-
criminatory purpose underlay Delaney 's discharge.
N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883
(C.A. 1). Cf. Shattuck Denn Mining Corp. v.
N.L.R.B., 362 F.2d 466, 470 (C.A. 9).
4. The dismissal notice also charges Delaney
with "this failure to comply with company rules and
regulations." But Respondent at no time explained
which infraction of the rules and regulations had
caused Delaney 's downfall . This failure to explain
under the circumstances supports the inference,
which I draw , that a discriminatory motive
prompted Delaney 's discharge. American Grinding
& Machine Co., 150 NLRB 1357, 1358; Virginia
Metalcrafters, Inc., 158 NLRB 958, 962. Cf.
Sterling Aluminum Co . v. N.L.R.B., 391 F.2d 713,
723 (C.A. 8).
5. Only union men were discharged on August
25, and all the nonunion men were retained . In fact
all the union salesmen , 10 in all , were discharged
on that date . This is a factor tending to show, but
not compelling the conclusion , that Delaney was
discharged for his union membership.
6. Timing and manner of discharge are signifi-
cant . Thus , I find that Delaney was abruptly
discharged a few days after he signed a union card
and during the workweek.
H. The Discharge of Milton E. Hewett
Hewett has been a salesman for Respondent
since February 1967. About August 20 he signed a
union authorization card. See General Counsel's
Exhibit 2 ( h). On August 23 he checked in at the
Concord Hotel , and the next day attended the new
Ford car showing at the hotel.
About 10 a.m. on August 25 Hewett reported for
work at the agency and called on General Sales
Manager Neely . Very soon thereafter Neely
brought Hewett to President Helfrich 's office where
Neely handed Hewett an envelope. When Hewett
asked "Is that all?" Neely replied by asking Hewett
for the keys and registration to the company car
which Hewett operated. Although Neely also of-
fered Hewett a ride home , Hewett refused it.
Within the envelope was a letter (G.C. Exh. 11)
dated August 24, 1967, addressed to "Milton
Hewitt [sic ]" and providing that:
The Company went to great expense to have
you attend a mandatory meeting for the show-
ing of the 1968 Ford at the Concord Hotel.
Due to this failure to comply with company
rules and regulations and your failure to attend
this meeting , you are hereby discharged.
GENE GRAHAM FORD,
INC.
/s/ Harold Helfrich
HAROLD HELFRICH,
PRESIDENT
Although Hewett did not read it until he was "back
.. on the street ," he knew what the envelope con-
tained at the moment it was presented to him.
On the evidence unfolded in Hewett's case, I am
persuaded , and find, that Hewett was discharged
for signing a union authorization card, and that the
reasons advanced in the dismissal letter are a pre-
text to conceal the true reason . These ultimate
GRAHAM FORD, INC.
findings emerge from , and are based on, the follow-
ing subsidiary facts, which I also find:
1. Respondent displayed antiunion hostility.
N.L.R.B. v. Flomatic Corp., 347 F.2d 74, 78 (C.A.
2), is distinguishable.
2. Hewett signed a union card and Respondent
was aware of this.
3. Timing cannot be ignored . Arkansas-Louisiana
Gas Company, 142 NLRB 1083, 1085-86. Hewett
was discharged a few days after he signed an
authorization card for the Union during the peak of
a union campaign . See Texas Industries , 156 NLRB
423, 425.
4. The circumstances of Hewett 's discharge are
significant . Not only was he abruptly discharged,
but Hewett was expelled from work during the
week . In addition , nine other union salesmen were
discharged contemporaneously with Hewett, so that
(a) the entire union membership on the sales force
was discharged , while the entire nonunion sales
force of four salesmen was retained, and (b) the
Union 's majority was thereby destroyed and entire-
ly eliminated . Thus , Respondent placed itself in a
position to claim that the Union lacked a majority
before a demand for recognition could be
presented to it . It is significant that Hewett's
discharge coincided with a successful organiza-
tional campaign . Texas Industries , Inc., 156 NLRB
423, 425; N.L.R.B. v. Mira-Pak, Inc., 354 F.2d 525,
527 (C.A. 5).
5. Although Hewett is charged with "failure to
comply with company rules and regulations," at no
time was he informed as to which ones he violated.
Such an indefinite accusation and failure to articu-
late reasons warrants the inference , which I draw,
that a discriminatory motive prompted his
discharge. N.L.R.B. v. Radcliffe, et al. d/b/a
Homedale Tractor & Equipment Co., 211 F.2d 309,
314 (C.A. 9); Virginia Metalcrafters, Inc., 158
NLRB 958, 962.
6. Hewett's testimony discloses that he checked
in at the Concord Hotel on August 23 and attended
the Ford car showing there on August 24. I credit
this evidence, especially since it has not been
rebutted either by the hotel records or by other
(whether oral or documentary) evidence. Yet one
ground relied on for Hewett 's dismissal in the letter
terminating him is "failure to attend this [ 1968
Ford car] meeting." Patently this ground is false
since I have found that Hewett did attend that
meeting. Falsely to accuse under these circum-
stances warrants the inference that Respondent was
concealing some other reason . N.L.R.B. v. Joseph
Antell, Inc., 358 F.2d 880, 883 (C.A. 1). I am con-
vinced, and find, that Respondent did conceal
another reason when Hewett was handed the
dismissal letter , and that such reason is union ac-
tivity. Cf. Shattuck Denn Mining Corp. v. N.L.R.B.,
362 F.2d 466, 470 (C.A. 9).
321
1. The Discharge of Richard J. Nolan
Nolan was hired as a salesman in February 1967
by Graham Ford, the Respondent. On August 21 he
signed a union authorization card. See General
Counsel's Exhibit 2(i). In August, Nolan went to
the Concord Hotel to attend the showing of 1968
Fords. He left about 2:30 p.m. on August 24.
On August 25, about 8:30 a.m., Nolan started
working at the agency. At approximately 8:50 a.m.,
General Sales Manager James Neely called Nolan
to President Helfrich's office. Notwithstanding that
Nolan told Neely that he, Nolan, was busy with a
customer , Neely told him to "forget the customer
and come right down to the office." Nolan obeyed
this command.
Upon arriving at the office, Nolan observed Hel-
frich handing Neely a letter. See General Counsel's
Exhibit 12. Neely in turn gave this letter to Nolan.
Dated August 24, 1967, and directed to Richard
Nolan, it reads as follows:
The Company went to great expense to have
you attend a mandatory meeting for the show-
ing of the 1968 Ford at the Concord Hotel.
Due to this failure to comply with company
rules and regulations and your failure to attend
this meeting , you are hereby discharged.
GENE GRAHAM FORD,
INC.
/s/ Harold Helfrich
HAROLD HELFRICH,
PRESIDENT
Besides Helfrich and Neely, Miss Quinlin and Sales
Manager Don Maynard were present in the office
at the time.
Although Nolan asked Helfrich why he was firing
Nolan, Helfrich merely replied that he was sorry he
had to do it, and that he did not want to lose a good
man like Nolan. When Nolan explained that he
could not attend the preview of the Ford cars
because he was sick in his hotel room, Helfrich
replied that it made no difference because he was
discharging his entire sales force. Further, Helfrich
asked Nolan to see him the following Monday (Au-
gust 28) to discuss Nonlan's dismissal . Helfrich also
promised to discuss rehiring Nolan on Monday, Au-
gust 28, if Nolan still wanted to work for Graham
Ford, but Nolan did not show up on that date.
Nolan participated in the picketing of Respon-
dent following the August 25 discharges.
Nolan's discharge in my opinion resulted from his
signing a union card. I so find. Further, I find that
the reasons assigned for his dismissal are a pretext
to conceal the true reason. These findings are based
on the entire record and the following subsidiary
facts, which I also find:
354-126 O-LT - 73 - pt. 1 - 22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Respondent entertained union animus and
was aware that Nolan was a union adherent. In ad-
dition I find that Nolan signed a union authoriza-
tion card about August 21.
2. Nolan checked in at the Concord Hotel on
August 23 but did not attend the showing of 1968
Fords on August 24 because he was sick . His failure
to attend constitutes cause for discharge , since he
did not ask to be excused or sought to explain his
absence when he resumed work on August 25. It is
of no consequence that discharging Nolan for not
appearing at the Ford showing on August 24 may
be thought to be unduly harsh and that an arbitra-
tor may well have imposed a lesser penalty . For the
Board is not an arbitrator and may not substitute its
judgment for that of an employer as to the ap-
propriateness or reasonableness of the discipline in-
volved once it has been determined that an em-
ployee has engaged in conduct not protected by the
Act. N.L.R.B. v . Ogle Protection Service, 375 F.2d
497, 505 (C.A. 6), cert. denied 389 U. S. 843;
Thurston Motor Lines , Inc., 149 NLRB 1368, 1369.
If in fact Nolan was terminated for not attending
the August 24 meeting , the discharge must be
upheld . N.L.R.B. v. Ace Comb Co., 342 F. 2d 841,
847 (C.A. 8); Interboro Contractors , Inc., 157
NLRB 1295, 1301; N.L.R.B. v. Ogle Protection Ser-
vice, supra.
Nevertheless , merely because lawful cause exists
will not justify a discharge if the motivating or
dominant reason behind the dismissal is a dis-
criminatory one. N.L.R.B. v . D'Armigene , 353 F.2d
406, 409 (C.A. 2); N.L.R.B. v . Whitin Machine
Works, 204 F.2d 883, 885 (C.A. 1). In this connec-
tion I have not disregarded the maxim that merely
because employer action coincides with a union
drive does not establish a discriminatory purpose in
such action . Star-Brite Industries , Inc., 127 NLRB
1008, 1011; N. L.R.B. Covington Motor , 344 F.2d
136, 138 (C.A. 4). Bu I find that a substantial or
motivating reason for Nolan 's discharge is his
unionism although cause existed for his discharge in
that he failed to att nd the new-car showing.
N.L.R.B. v. Tennessee Packers, Inc., 390 F.2d 782
(C.A. 6).
3. Timing and manner of discharge are also sig-
nificant . These factors have been detailed above in
connection with other discharges and need not be
repeated here . In addition Nolan was given no op-
portunity to defend himself for being absent. Talon,
Inc., 170 NLRB 355, fn. 1.
4. Only union adherents were discharged on Au-
gust 25, while all ( four in number ) nonunion men
were retained.
5. No explanation was given to Nolan as to how
he failed to comply with company rules and regula-
tions, or which ones he broke, despite the fact that
one of the two charges pressed against him in the
letter of August 24 indicts him with "failure to
comply with company rules and regulations." This
assumes added significance because President Hel-
frich failed to render an acceptable answer to
Nolan 's question as to why Nolan was being fired.
Virginia Metalcrafters , Inc., 158 NLRB 958, 962;
N.L.R.B . v. Radcliffe, et al. d/b/a Homedale Tractors
& Equipment Co., 211 F. 2d 309 , 314 (C.A. 9).
J. The Discharge of Ronald G. Bottieri
Bottieri was hired as a salesman by Respondent
on October 17, 1966 . He signed a union authoriza-
tion card in May 1967. See General Counsel's Ex-
hibit 2(j). Unlike the other salesmen , Bottieri did
not attend the preview of new Fords at the Concord
Hotel . Rather , he remained at the agency's
showroom and worked there on August 23 and 24.
On August 25 he reported for work at 8:30 a.m.,
his usual starting time . A half hour later General
Sales Manager James Neely directed Bottieri to fol-
low him upstairs to President Helfrich 's office.
When the two arrived there , Helfrich handed a
paper to Neely, who then gave it to Bottieri. It
turned out to be a letter (G.C. Exh . 13) dated Au-
gust 24, 1967, addressed to Ronald Bottieri, and in-
forming him that:
Due to your poor sales performance and
lackadaisical attitude, and also, not being able
to do your best as required of a good salesman
your services here at Gene Graham Ford, Inc.
are no longer required.
GENE GRAHAM FORD
INC.
/s/ Harold Helfrich
HAROLD HELFRICH,
PRESIDENT
Neither Helfrich nor Neely said anything to Bottieri
on this occasion . After reading the letter Bottieri
left.
Prior to receiving the letter Bottieri had not been
informed, notified, or warned by any supervisor or
official of Respondent that his sales performance
was poor or that his attitude was lackadisical; nor
had he been reprimanded or disciplined therefor.
While Bottieri did not attend the preview of Ford
cars on August 23 and 24, his situation in many
respects is comparable to that of the union
salesmen who did attend such preview . And I addi-
tionally find that Bottieri signed a union authoriza-
tion card , that Respondent had knowledge thereof,
and that Respondent harbored union animus. On
these facts, the subsidiary findings ( which I find as
facts ) enumerated immediately below, and the en-
tire record in this case, I conclude and find that
Bottieri was discharged for signing a union
authorization card , and that the reasons given in
the letter discharging him are a pretext.
1. All the union salesmen (nine besides Bottieri)
were discharged on the same day, while the nonu-
nion salesmen (four in number ) continued to work.
GRAHAM FORD, INC.
It is my opinion, and I find, that it is more than
coincidental that all the union men were terminated
on the same day while all the nonunion men were
retained.
2. Timing cannot be disregarded. Bottieri was
discharged not long after he signed the union card
and at the peak of a successful drive whereby the
Union obtained a majority.
3. Manner of discharge is significant. Thus, Bot-
tieri was summarily discharged during the work-
week. Further, the word "lackadaisical" is
meaningless absent language describing with some
clarity how Bottieri's conduct was embraced by
that word. Yet no such language was used. Thus, I
find that, in this respect, no understandable reason
was given for the discharge. This tends to show a
discriminatory motive.
4. Although the dismissal notice asserts that Bot-
tieri was discharged "due to your poor sales per-
formance" as one reason, no evidence was offered
as to Bottieri 's sales record in the past or in the
year 1967. Further, Bottieri was never at any time
put on notice that his sales were below par or that
he risked losing his job by "poor sales per-
formance." Failure to warn, under the circum-
stances , is significant. Talon, Inc., 170 NLRB No.
42, fn. 1.
K. Interference, Restraint, and Coercion
In April 1967, Respondent's president, Helfrich,
spoke to employee Ernest Doin in Helfrich's office.
In this conversation Helfrich mentioned that em-
ployees were then trying to organize another
Graham Ford agency in Akron, Ohio, but the effort
proved fruitless and the men "got their butts
burned pretty badly." Helfrich added that he
"hated to see it happen to" Doin. At this time Doin
was president of the Union. While I find that Hel-
frich's statement displayed union animus , neverthe-
less, I find that it contains no coercion or threat of
reprisal and, therefore, does not run afoul of Sec-
tion 8(a)(1) of the Act.
As found above, the Union picketed Graham
Ford after the above discharges occurred. While
such picketing was being conducted, on or about
September 8 and 9, President Helfrich took a pic-
ture of the picket signs . Helfrich testified, and I
credit him, that he did so to obtain the exact text of
the legend on the picket banners. But I find nothing
coercive in this conduct, as I find it is proper to
preserve the wording of picket signs in case the
precise language used became relevant or material
at some future time . In addition, I find that no
threats or actual reprisals accompanied or were
coupled with the picture taking . Accordingly, I
shall recommend that this branch of the complaint
be dismissed. Hilton Mobile Homes, 155 NLRB 873,
874, supports this conclusion.
As found above, General Sales Manager James
Neely told employee Piccolo that management was
323
aware of the move to organize Respondent's
salesmen and asked Piccolo who started it. I find
this is coercive interrogation , as no legitimate pur-
pose has been shown for such inquiry . Johnnie's
Poultry Co., 146 NLRB 770, 774-775, enforcement
denied 344 F. 2d 617 ( C.A. 8). In my opinion
Bourne Co . v. N.L.R.B., 332 F.2d 47 (C.A. 2), does
not dictate a contrary result . Although I have
credited Piccolo on this aspect of the case, I have
not overlooked Piccolo's prior inconsistent state-
ment when interviewed by an agent of the Board.
This is because I am persuaded , on the basis of Pic-
colo's demeanor on the witness stand , that he was
testifying truthfully as a witness.
As narrated above , I have found that General
Sales Manager Neely asked employee Chalachanis
whether Chalachanis had signed a union card. I find
this is coercive, as no lawful cause has been shown
for such a question . While I have credited
Chalachanis , I have not disregarded his contrary
testimony on cross-examination that he told a
Board agent that the Union was not discussed on
this occasion . Apart from the fact that I credit
Chalachanis on the basis of my observation of his
demeanor on the stand , I find that Chalachanis
freely admitted on cross-examination that in some
respects his affidavit given to the Board agent con-
tained statements not consonant with his testimony
on the stand . It is significant that Chalachanis was
not evasive when confronted on cross-examination
with these statements culled from his affidavit given
before he testified.
L. The Refusal To Recognize and Bargain With the
Union
When Respondent acquired the agency on Oc-
tober 17, 1966, from Webster Motors Sales,
Respondent was aware that the salesmen were try-
ing to organize. In fact an election had been held
prior to October 17, 1966, but as of that date the
question of representation had not been resolved
because the challenges to some votes had not yet
been decided. However, Respondent had no
knowledge after October 17, 1966, according to
Eugene Graham, its chairman of the board, of "any
activity whereby cards [were] being signed or new
men joining the Union ...."
As found above, Ernest Doin, president of the
Union, on August 25 demanded recognition of the
Union of Respondent's president, Harold Helfrich.
At that time Doin handed 10 cards to Helfrich,
these having been signed by salesmen Doin, Hamil-
ton, Piccolo, Chalachanis, Guy, Robideau, Delaney,
Hewett, Nolan, and Bottieri. I find these cards are
valid. Since the parties have agreed that an ap-
propriate unit consisted of 14 salesmen, it is obvi-
ous-and I find-that the Union enjoyed a majority
at the time of said demand and at all material times
since then. And I further find, pursuant to the stipu-
lation of the parties, that an appropriate unit under
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 9 ( b) of the Act for the purposes of collec-
tive bargaining is
All new and used car and truck salesmen em-
ployed at the Respondent 's Schenectady, New
York, location , excluding all other employees,
office clerical employees , mechanics,
bodymen , parts department employees , profes-
sional employees , guards, and supervisors as
defined in the Act.
Although Doin did not mention or describe the
unit for which he demanded recognition, I find that
President Helfrich reasonably understood that only
salesmen were involved . Cf. N.L. R.B. v. Philamon
Laboratories , Inc., 298 F.2d 176, 181 (C.A. 2). This
is because (a) Graham knew Doin was president
of the Union , ( b) the Union had asked for an elec-
tion in that unit shortly before Respondent
acquired the agency , and Respondent was aware of
that , and (c ) all the cards presented to Helfrich not
only were signed by salesmen but also designated
the Union , a salesmen 's labor organization , as their
bargaining agent . N.L.R.B. v. Albouguerque Phoenix
Express, 368 F.2d 451, 453 (C.A. 10); Joy Silk
Mills, Inc . v. N.L.R. B., 185 F .2d 732, 741
(C.A.D.C.). Cf. Phelps-Dodge Copper Products
Corp ., 152 NLRB 1188 , 1192, reversed 354 F.2d
591 (C.A. 7); Johnnie 's Poultry Co., 146 NLRB
770, 772, fn. 5. Accordingly, I find that a valid and
proper demand was made upon Respondent to
recognize the Union as the collective -bargaining
representative of a majority of the employees in an
appropriate unit; i.e., a unit composed only of the
salesmen . N.L.R.B. v. Jackson Press, Inc., 201 F.2d
541, 544-545 (C.A. 7), does not compel a different
conclusion.
Respondent contends that the Union lacked a
majority on August 25, when it presented its de-
mand for recognition , as it had lost its majority on
August 24 when all 10 salesmen who signed
authorization cards were lawfully discharged. But
as I have found that such 10 discharges were unlaw-
ful, I further find that the Union 's majority was not
dissipated by the illegal discharges . Washington Alu-
minum Company , Inc., 126 NLRB 1410, 1411. And
I find that the 10 cards are valid, as they were not
obtained by wrongful or unlawful means. See
N.L.R.B. v. Gotham Shoe Mfg. Co., 359 F.2d 684
(C.A. 2). Cf. N.L.R.B. v. S. E. Nichols Company,
380 F . 2d 438 (C.A. 2).
Then , again , Respondent questions the Union's
majority because the cards are undated . However,
one card , that of Richard J . Nolan, in evidence as
General Counsel 's Exhibit 2(i), is dated
"8-21-67 ," and I find that it was signed on that
date . Further , I find that eight of the remaining nine
cards were signed shortly before August 25, as I
credit the signers thereof as to the date when each
subscribed his card . And I find that Bottieri's card
is valid although signed in May 1967. Accordingly,
I find that this argument is not well taken as I find
that none of the cards is stale . Nor is it fatal that
the cards were presented within 1 year after a valid
election . This is because Section 9 (c)(3) of the Act
prohibits only the holding of more than one elec-
tion in a unit in a year and does not affect the right
to demand recognition based on cards during that
same year following an election . Rocky Mountain
Phosphates, Inc., 138 NLRB 292, 295; Conren, Inc.
d/b/a Great Scot Super Market, 156 NLRB 592,
599, 368 F.2d 173 (C.A. 7); General Tire Co., 170
NLRB No. 78.
Of course , even if a union represents a majority
by reason of signed cards in its possession, an em-
ployer may in good faith question that majority;
and, if he so questions it, he cannot be held to have
refused to recognize or bargain contrary to the
provisions of Section 8(a)(5) of the Act. Aaron
Brothers Company of California, 158 NLRB 1077,
1079. And the burden of proof is on the General
Counsel to establish affirmatively the existence of
bad faith. John P. Serpa, Inc., 155 NLRB 99, 100.
The question then is whether the General Counsel
has sustained this burden . In this connection I find
that Respondent has not responded to the Union's
demand of August 25 for recognition and that this
constitutes a refusal to bargain collectively with the
Union.
It is my opinion , and I find , that the General
Counsel has established by a fair preponderance of
the evidence that Respondent did not in good faith
question the Union's majority and that, therefore,
Respondent 's refusal to recognize and bargain with
the Union transgresses Section 8 ( a)(5) of the Act.
This is based upon the entire record and the follow-
ing, which I find as facts:
1. Respondent at no time informed the Union
that Respondent questioned the Union's majority.
In fact Respondent at no time since August 25 has
communicated with the Union. It is reasonable to
expect that Respondent would have announced its
doubt of majority at least prior to the expiration of
a reasonable time . Cf. N.L.R.B. v. Philamon
Laboratories, 298 F.2d 176 (C.A. 2), cert. denied
370 U.S. 919. Further, Respondent chose to do
nothing about the cards . "Where, as here, the
Union had proof of its majority status readily
available and [Respondent ] chose not to learn the
facts, it took the chance of what they might be."
James H. Mathews & Co. v. N.L.R.B., 354 F.2d 432
(C.A. 8). See Irving Air Chute Company, Inc. v.
N.L.R.B., 350 F.2d 176, 182 (C.A. 2). In fact good
faith is not established by merely asserting it. John-
nie's Poultry Co., 146 NLRB 770, 773
2. Respondent engaged in contemporaneous un-
fair labor practices not consonant with good faith;
i.e., it discriminatorily discharged the 10 salesmen
belonging to the Union. Drug King, Inc., 157 NLRB
343, 344. This "evinces a rejection of the principle
of collective bargaining " (American Cable Systems,
Inc., 161 NLRB 332) and discloses "a desire [by
Respondent ] to gain time and to take action to dis-
sipate the Union's majority." Joy Silk Mills v.
N.L.R.B., 185 F.2d 732, 741 (C.A.D.C.). Cases
like N.L.R.B. v . Logan Packing Co., 386 F.2d 562
GRAHAM FORD, INC. 325
(C.A. 4), do not compel a different result. Cf.
N.L.R.B . v. Sehon Stevenson & Co., 386 F.2d 551
(C.A. 4). However , I do not regard Respondent's
interrogation as of sufficient gravity to show bad
faith and do not rely on it in finding a lack of good
faith in questioning the Union 's majority . Hercules
Packing Corporation, 163 NLRB 264, affd . sub nom.
Textile Workers Union of America , AFL-CIO v.
N.L.R.B ., 386 F.2d 790 (C.A. 2). But see United
Steel Workers of America , AFL-CIO ( Wagner Indus-
trial Products Co., Inc .) v. N.L.R.B., 386 F.2d 981
(C.A.D.C.).
Upon this issue I find that Respondent was cogni-
zant of the Union 's organizing efforts prior to the
demand for recognition made by the Union.
Respondent 's evidence inconsistent with this find-
ing is not credited . In any event I find such
knowledge , contrary to Respondent 's very able ar-
gument , on the ground , that, as Respondent
operated a small plant , the Board 's small plant rule
attributes such knowledge to Respondent. New
French Benzol Cleaners and Laundry , Inc., 139
NLRB 1176, 1179; Allied Distributing Corporation,
130 NLRB 1348, 1350 . In the latter case the Board
inferred knowledge of union activity by reason of
the smallness of the employer 's plant.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices prohibited by Section
8(a)(1), (3), and (5) of the Act, it will be recom-
mended that it cease and desist therefrom and that
it take specific affirmative action , described below,
designed to effectuate the policies of the Act. Since
all salesmen who were discharged have been
rehired , no provision regarding their reinstatement
is necessary . But I shall recommend that each of
these salesmen be made whole for any loss of
earnings suffered by reason of the discrimination
against him.
In making such salesmen whole Respondent shall
pay to each a sum of money equal to that which he
would have earned as wages from the date of such
discrimination to the date of reinstatement , less his
net earnings during such period. Such backpay, if
any, is to be computed on a quarterly basis in the
manner prescribed by F. W. Woolworth Company,
90 NLRB 289, with interest thereon at 6 percent
calculated by the formula set forth in Isis Plumbing
& Heating Co., 138 NLRB 716. It will also be
recommended that Respondent preserve and, upon
reasonable request , make available to the Board or
its agents all pertinent records and data necessary
to aid in analyzing and determining whatever
backpay may be due.
Since the discrimination involved in the
discharges of the salesmen goes "to the very heart
of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (C.A. 4)), I shall recommend that
the Order issued safeguard employees against in-
fringement in any manner of the rights vouchsafed
to them by Section 7 of the Act. R & R Screen En-
graving, Inc., 151 NLRB 1579, 1587.
Upon the basis of the foregoing findings of fact
and the entire record in this case, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Capital District Automobile Salesmen's As-
sociation is a labor organization within the meaning
of Section 2(5) of the Act.
2. Graham Ford, Inc., the Respondent, is an em-
ployer as defined in Section 2(2) and is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
3. By coercively interrogating employees as to
their union membership, activities, and desires,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By discriminating in regard to the tenure of
employment of the 10 employees enumerated in
this paragraph, thereby discouraging membership in
the Union, a labor organization, Respondent has
engaged in unfair labor practices as defined in Sec-
tion 8(a)(3) and (1) of the Act. Said 10 employees
are Ernest Doin, Joseph Hamilton, Amedeo Pic-
colo, Leo Chalachanis, Tom Guy, David Robideau,
John J. Delaney, Milton E. Hewett, Richard J.
Nolan, and Ronald G. Bottieri.
5. All new- and used-car and truck salesmen em-
ployed at Respondent's Schenectady, New York,
agency, excluding all other employees, office cleri-
cal employees, mechanics, bodymen, parts depart-
ment employees, professional employees, guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
6. On or about August 25, 1967, and at all
material times thereafter, the Union has
represented a majority, and has been the exclusive
bargaining representative, of all the employees in
the aforesaid appropriate unit for purposes of col-
lective bargaining within the meaning of Section
9(b) of the Act, and Respondent was on that date,
and has been since, legally obligated to recognize
and bargain with the Union as such.
7. By refusing to recognize or bargain with the
union for the employees in said appropriate unit on
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and since August 25, 1967, Respondent has en-
gaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
8. Respondent has not committed any other un-
fair labor practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in this
case, it is recommended that the Respondent, its of-
ficers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Capital District
Automobile Salesmen's Association, or any other
labor organization, by discharging employees or
otherwise discriminating in any manner in respect
to their tenure of employment or any term or con-
dition of employment.
(b) Coercively interrogating its employees as to
their union membership , activities , or desires.
(c) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of rights safeguarded to them by Section 7 of
the Act, except to the extent that such rights may
be affected by an agreement requiring membership
in a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Make whole the following employees for any
loss of pay each may have suffered by reason of the
discrimination against him, with interest thereon at
the rate of 6 percent: Ernest Doin, Joseph Hamil-
ton, Amedeo Piccolo, Leo Chalachanis, Tom Guy,
David Robideau, John J. Delaney, Milton E.
Hewett, Richard J. Nolan, and Ronald G. Bottieri.
(b) Preserve and, upon reasonable request,
make available to the Board or its agents , for ex-
amination and copying, all payroll records and re-
ports and all other records necessary to ascertain
the amounts of backpay due under the terms of this
Recommended Order.
(c) Upon request, bargain collectively with the
Union as the exclusive representative of all the em-
ployees in the aforesaid appropriate unit and, if an
understanding is reached, embody such understand-
ing in a written , signed agreement.
(d) Post at its Schenectady, New York, dealer-
ship copies of the attached notice marked "Appen-
dix."3 Copies of said notice, on forms provided by
the Regional Director for Region 3, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 3, in
writing , within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith."
IT IS FURTHER RECOMMENDED that the complaint
be dismissed insofar as it alleges violations of the
Act not specifically found herein.
' In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words " a Decree of the United States Court of Ap-
peals Enforcing an Order " shall be substituted for the words " a Decision
and Order"
' 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 3, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in
Capital District Automobile Salesmen's As-
sociation , or any other labor organization, by
discharging any of our employees or in any
other manner discriminating against them in
regard to hire or tenure of employment or any
term or condition of employment.
WE WILL NOT coercively interrogate our em-
ployees as to their union membership, activi-
ties, or desires.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of rights guaranteed to them by Sec-
tion 7 of the Act, except to the extent that
such rights may be affected by a union shop
agreement requiring membership in a labor or-
ganization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
WE WILL pay to the following employees any
loss of pay incurred by them as a result of our
discharging them, with interest thereon at 6
percent:
Ernest Doin David Robideau
Joseph Hamilton John J. Delaney
Amedeo Piccolo Milton E. Hewett
Leo Chalachanis Richard J. Nolan
Tom Guy Ronald G. Bottieri
WE WILL, upon request, bargain collectively
with Capital District Automobile Salesmen's
Association as the exclusive bargaining
representative of all employees in the bargain-
ing unit described below with respect to rates
of pay, wages, hours of employment, and other
GRAHAM
conditions of employment, and, if an un-
derstanding is reached, embody such un-
derstanding in a written , signed agreement.
The bargaining unit is:
All new- and used-car and truck salesmen
employed at our Schenectady, New York,
agency, excluding all other employees, of-
fice clerical employees, mechanics,
bodymen, parts department employees,
professional employees, guards, and super-
visors as defined in the Act.
All our employees are free to become or remain,
or refrain from becoming or remaining , members of
the above-named Union, or any other labor or-
ganization.
FORD , INC. 327
GRAHAM FORD, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board' s Regional
Office, 4th Floor, The 120 Building, 120 Delaware
Avenue, Buffalo, New York 14202, Telephone
842-3100.002