Graham Ford, Inc.

National Labor Relations Board - Board Decisions

Nov 17, 1969

179 N.L.R.B. 617 (N.L.R.B. 1969)

GRAHAM FORD , INC. 617
Graham Ford , Inc. and Richard J. 'Nolan, Case
3-CA-3593
November 17, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 23, 1969, Trial Examiner Robert Cohn
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as forth in the attached Trial Examiner's
Decision Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision together
with a supporting brief, and Respondent filed a brief
in support of the Trial Examiner's Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and,
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner This case, heard at
Albany, New York, on April 18 and 19, 1969, pursuant to
a charge filed September 23, 1968,' and a complaint
issued February 14, 1969, presents the question whether
Graham Ford, Inc (herein the Respondent or Company),
violated Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended (herein the Act), when it
discharged its employee Richard J Nolan on September
19 In its answer, the Respondent admitted the
jurisdictional allegations of the complaint, but denied that
it had committed any unfair labor practices
At the hearing, all parties appeared through counsel
and were afforded full opportunity to be heard, and to
examine and cross-examine witnesses At the close of the
hearing, all parties waived oral argument Helpful
posthearing briefs have been received from counsel for the
General Counsel and counsel for the Respondent
'All dates hereinafter refer to the calendar year 1968, unless otherwise
specified
Upon the entire record in the case,' and from my
observation of the demeanor of the witnesses, I make the
following
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent, a New York corporation, is engaged at
Schenectady, New York, in selling and distributing
automobiles, trucks, and related products During an
annual period the Respondent, in the course and conduct
of its business operations, sells and distributes products
valued in excess of $500,000, and receives goods valued in
excess of $ 5 0,000 which are transported to its place of
business in New York directly from States of the United
States other than the State of New York I find, as the
Respondent admits, that the Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act '
iI THE LABOR ORGANIZATION INVOLVED
. Capital District Automobile Salesmen's Association,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
As previously noted, the only issue in this case is
whether the Respondent, by discharging its employee
Richard J Nolan on September 19, discriminated to
discourage union membership in violation of Section
8(a)(3) of the Act
At all times material, Nolan worked as an automobile
salesman for Respondent from the time of his
employment in February 1967 until he was discharged He
was active in the Union from the time of its inception and
was discharged along with nine other salesmen in August
1967 for discriminatory reasons ' Nolan also participated
along with other union members in a strike called in April
assertedly because of the Employer's refusal to bargain
Apparently after this incident, the Company and the
Union commenced negotiations which eventually led to a
collective-bargaining agreement, although such agreement
occurred subsequent to Nolan's discharge
In June, the Employer by its President Helfrich
unilaterally announced a change in the bonus plan for
salesmen Theretofore, the bonus was based upon gross
profit from the sale of automobiles, both new and used
Helfrich announced at a sales meeting in June that this
plan would be changed to one based upon. the number of
units which a salesman sold (each salesman having been
allotted a certain number of units based upon evidence of
past abilities) including the sale of a truck (or trucks) as a
qualifier That is to say, the sale of a truck was an
apparent condition of the salesman receiving a bonus
irrespective of whether the salesman met his automobile
quota At the meeting, Nolan pointed out the difficulty
'Attached to his brief, and similarly served on all parties, is General
Counsels Motion to Correct Transcript of Proceedings Having received
no objections, the Motion is granted An additional correction should be
noted p 160, 11, 13 and 17, change September 18 to September 19
The Board has previously asserted jurisdiction over this Employer See
Graham Ford. Inc 172 NLRB No 50
'This background information is gleaned from the Board's decision in
the prior case involving this Employer, heremabove referred to (172 NLRB
No 50), of which I have taken judicial notice pursuant to the request of
counsel for the General Counsel All dischargees were reinstated in
December 1967
179 NLRB No. 99
618 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
which the Employer had experienced respecting the
availability of trucks due to a shortage of engines, and
Helfrich replied that, if the vehicles were not available, the
Company would rescind the qualifier
However, Nolan was apparently not satisfied, and after
the meeting discussed the matter with Ernest Doin,
president of the Union and a member of the bargaining
committee (Nolan was neither an officer of the Union nor
a member of the bargaining committee, but was on the
executive board of the Union) The two men had a brief
meeting with Helfrich in which they advised that they did
not think it was proper for the Company to unilaterally
change the type of pay system while a contract was being
negotiated (The foregoing is not alleged a violation
herein ) Helfrich replied, in essence, he had authority to
change the plan any way he wanted to regardless of how
the members of the Union felt about it
Contract negotiations apparently proceeded during the
summer, and on or about August 30 Amedeo Piccolod
then temporarily vice president of the union, and several
other members approached President Helfrich with a
suggestion to have an open meeting respecting the present
status of the negotiations Accordingly, such a meeting
was held on the showroom floor on August 30, at which
substantially all employees were present '
At the August 30 meeting, Helfrich read off the
proposals one by one, indicating agreement or
disagreement According to Nolan's testimony, when
Helfrich said there would be no paid holidays, Nolan
advised that Helfrich had already agreed to pay for
national holidays Whereupon, Helfrich became angry and
said "What are you trying to do, put me out of business"
I can't buy that " With respect to the issue of vacation
pay, Helfrich did not include in the computation of
average earnings, upon which vacation pay was based, the
bonuses which these salesmen received, contending that
such bonuses were in the nature of a gift Nolan insisted
the bonuses were earned and should be included in the
computation of average earnings Whereupon, Helfrich,
after discussion with his advisors, -agreed
During this meeting, . the issue of the bonus plan was
raised again (apparently by Nolan) to advise Helfrich that
he had sold two trucks in August which were unavailable
for delivery because of problems at the factory, thereby
disqualifying him from a bonus even though he had met
his quota with respect to automobile sales He reminded
Helfrich of the latter's promise that if the trucks were not
available the Company would not require them to qualify
for the bonus However, Helfrich denied making the
promise, whereupon, Nolan, becoming "a little mad,"
reverted back to his complaint that the plan had been
made with no prior consultation with the Union and that
it was still a verbal matter not having been reduced to
writing that it was a "Mickey Mouse plan in a sense "
At this point, General Manager Neely said, "You have an
awful lot to say I don't 'want anymore of your
aggravation," and left the showroom '
General Manager Neely maintains on a bulletin board
in his office a monthly running total of automobile sales
by each of the salesmen On September 18, Nolan noticed
an apparent discrepancy on the board with respect to the
number of sales that he had made during that month
`The foregoing finding is based upon the testimony of Nolan, Helfrich
not being called as a witness
At that time the Employer employed approximately 15 salesmen of
which about I I or 12 were union members
'The foregoing findings are based upon the uncontradicted testimony of
Nolan, which I credit
That is to say, the board showed only four units sold by
him whereas he claimed six When he brought the matter
to Neely's attention, the latter asked him to bring in his
records and cross-check them, which they did It appears
that Nolan had sold two cars on the last day or two of
August which had not been, in fact, delivered until
September, and Neely had placed the sales in August
Nolan claimed that the credit for such sales should have
been placed in September since that was the month in
which the cars had been delivered
At this point the testimony of the two men differs
rather widely According to Nolan's testimony, Neely
explained that the two units had been pushed back into
August business to meet a sales quota which the Company
had with the Ford Motor Company Nolan was agreeable
for Neely to do this so long as he (Nolan) received credit
in the month when the units were delivered Nolan
claimed that this was the way it had been done in the
past According to Nolan, Neely "got hot with that and
got up and walked out and I followed him out and he
turned and said, `You're a liar, you can't prove that "' He
had no more to say with Neely at that point, but
discussed the matter with two salesmen on the floor A
short time later, Helfrich came through the showroom and
Nolan inquired of him as to the proper time for receiving
credit for the sale of units when they are sold or when
they are delivered When Helfrich replied the latter, Nolan
told Helfrich of his conversation with Neely, after which
Helfrich went into Neely's office and had a conversation
According to Nolan, that ended the occurrences that day
On the other hand, Neely testified that Nolan wanted
the two August deals written in September since Nolan
could not make the August bonus in any event, and that
Nolan had accused him of trying to change sales dates
around to suit himself This accusation admittedly made
Neely quite "hot," and he replied, "you had better be able
to prove that You're talking on both sides of your
mouth " Neely then left to appraise an automobile
Gary Berard was a salesman for the Company on,
September 18 He testified that he noticed Nolan and
Neely in a discussion in the latter's office and, when
Nolan left, Berard went in Neely's office and said, "Jim,"
when all of a sudden Neely got out of his chair and went
out of the office Nolan was standing in his cubicle and,
as Neely was leaving, accused the latter of being a thief or
a cheat Neely retorted that "that will be enough of that,"
but Nolan kept talking and accusing Neely of juggling
figures and stealing from the men and Neely kept saying
"shut up "
Leo Chalachanis, another of the Company's salesmen,
testified that on September 18 he heard Nolan accuse
Neely of attempting to cheat him and that Neely turned
around, pointed his finger at Nolan, and said, "that's
enough of that "I
Joseph Cahill was a used-car salesman for the
Company on September 19' According to Cahill's
On cross-examination of both Berard and Chalachanis, the General
Counsel showed that their testimony at the hearing differed in some
respect from that given in the prehearing investigation of this case
However, their demeanor as witnesses was impressive , they answered
questions candidly and forthrightly , and their explanation of any
discrepancy was reasonable , Both men were and are union members, so
that they do not possess an antiunion bias Accordingly , I credit their
testimony as presented at the hearing
'Respondent ' s used -car lot is located approximately 2 miles from the
main showroom He and Ralph Brundo, another salesman , and Don
Maynard , the used - car manager and an admitted supervisor , were the
Respondent's only used-car salesmen at that time
GRAHAM FORD, INC.
testimony, Maynard called him and - Brundo into
Maynard's office at the used-car showroom during the
morning of September 19 and told them that he had
spoken with General Manager Neely that morning, the
latter had stated that he (Neely) was going to give Nolan
a letter and that Neely hoped that Nolan would "answer
him back" so that Neely would have justification for
firing him According to Cahill, this statement of
Maynard constituted the whole conversation among the
three men, there being no response by either him or
Brundo i" Later in the afternoon, Maynard advised the
two salesmen that Nolan had in fact been fired and that,
if they wanted to do him a favor, they could take up a
collection for him
Maynard denied the first conversation in torn and
recalled only that-during the afternoon of September 19
he advised Cahill and Brundo that Nolan was no longer
with the Company Maynard acknowledged that he had
talked with Neely during the morning and that the latter
had showed Maynard the letter which he intended to give
to Nolan but there was no particular conversation
respecting it "
On September 19 Nolan arrived at work at his
scheduled hour -- about I p m - when Neely came into
his office and handed him a letter, as follows
September 18, 1968
Richard Nolan
Dear Mr Nolan
You are fully acquainted with the rules , regulations
and policies of this company During your term of
employment, you have repeatly [sic] been late for your
floor time and late to sales meetings
On Sept 9 , 1968 you failed to be at the sales
meeting on time, and again on Sept 16 , 1968 you failed
to be at the sales meeting on time On each of these
occasions you were suspended from work for two days,
a total of four days suspension thus far this month
This is to inform you that your poor attitude, and
your tardiness will no longer be tolorated [sic] Any
further abuse of company rules will result in your
emmediate [sic ] discharge
Sincerely,
/s/ James Neely
James Neely, General
Sales Mgr
As was the case the previous day, the two men's version
of what took place following Neely's delivery of the letter
to Nolan varies widely Nolan testified that he questioned
Neely as to what was meant by the suspension from work
on September 9 since in fact he received an excuse for
being late to that sales meeting because he was busy with
a customer and received Neely's permission (Neely denied
that Nolan was excused from the meeting but
acknowledged that he did not enforce the suspension
because he needed salesmen ) There is apparent agreement
that Nolan did receive a suspension for being late to the
'°Brundo was not called as a witness, although it was not shown that he
was unavailable
''Maynard testified that it was a customary thing for him to be advised
respecting any reprimands to be given employees since , as sales manager,
his responsibilities covered both locations although he normally operated
from the used -car lot After due consideration of all credibility factors,
including demeanor, I am inclined to credit Maynard over Cahill The
recount of the conversation as testified to by Cahill simply does not ring
true, and Brundo was not called as a corroborating witness even though it
was not shown that he was otherwise unavailable In any event , even were
I to credit Cahill, it would not affect my ultimate disposition of the issue
of discrimination , as set forth infra
619
September 16 meeting Nolan inquired what was meant by
"poor attitude", i e , did it relate to-his questioning Neely
respecting the bonus Neely responded, "you, called me a
thief yesterday on the showroom floor" to which Nolan
responded, "I didn't call you a thief and never intended
the same " Neely terminated the interview by stating "I
just don't need your aggravation around here anymore
Give me the keys to your demonstrator, you're finished "i I
Immediately following his discharge, Nolan proceeded
to relate the circumstances to Ernest Doin, president of
the Union The latter, in the company of vice president of
the Union, Viccolo, then called on Vresident Helfrich in
an effort to have the discharge rescinded Helfrich called
Neely into the office and Neely said that he would not
rescind the discharge because Nolan had talked to him
using abusive language and implying that he was a thief
After Neely left the office, Viccolo and Doin remained
with Helfrich, arguing that the punishment was too severe
and requested that it be reduced Helfrich stated that he
would not countermand any orders given by his sales
manager but that he-would rehire Nolan if Neely would
agree Accordingly, Piccolo and Doin proceeded to inquire
of Neely whether he would agree to rescind the order of
discharge, but the latter refused stating that he would not
retain in the Respondent's employ any employee who
talked to him in the manner, and engaged in the name
calling, which Nolan did
Analysis and Concluding Findings
The General Counsel's theory of violation in this case,
as expressed in his brief (page 5) is that "Respondent,
inveighed with its hostility towards the active voices of the
union, deliberately provoked the situation which gave rise
to Nolan's alleged insubordination and then seized upon it
as an excuse for discharging Nolan The focal point of the
pretext for the discharge is Nolan's leadership in objecting
to the bonus plan instituted in June 1968 and again when
Respondent sought to include it within the
collective-bargaining agreement being negotiated Sales
Manager Neely took offense to Nolan's characterization
to the plan as a `Mickey Mouse' plan and subsequently
took steps to eliminate this antagonist " I cannot agree
that there is substantial evidence in the record considered
as a whole to sustain the General Counsel's burden on this
issue Rather I find in agreement with the Respondent
that the compelling reason for the discharge was the
personal animosity which arose between Nolan and his
immediate supervisor
It is true that Nolan was quite vociferous in his
opposition to the bonus plan, and his objection was raised
initially at the June meeting in his capacity as a member
of the Union's Executive Board to the Respondent's
unilateral change in this condition of employment without
consultation with the Union But his continued objection
"Neely's version is that , after Nolan finished reading the letter, Neely
advised that the letter meant exactly what it said and that , if Nolan further
abused company rules, the result would be immediate discharge After
that, Nolan brought up the bonus question again to which Neely responded
that he had been through that before , whereupon , Nolan accused Neely of
trying to defraud him of his bonus ( using an obscenity ) 'At that point,
Neely advised that Nolan was through that he had taken his abuse the
first time but he was not going to again The credibility issue here has been
exceedingly difficult Both men appeared rather volatile , and I suspect that
the actual truth of what occurred lies somewhere in between the two
versions of the conversation In any event, as my analysis , infra indicates,
I believe that the ultimate issue of discrimination may be disposed of
without specifically making a determination of the credibility issue as
pertains to this last conversation between Nolan and Neely
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the plan voiced at the August 30 meeting took on a
more personalized note, as he made particular reference to
his sale of two trucks in August which did not count
towards his bonus' because of inability to deliver them He
concededly irritated and antagonized General Manager
Neely at that time by his reference to the bonus plan as a
"Mickey Mouse" plan since it was apparently Neely's
idea While this occurred at a meeting which was called to
discuss the progress of the negotiations, it is apparent that
Nolan raised the issue to assuage a personal grievance it
is to be recalled that Nolan was not an officer of the
Union nor a member of the negotiating committee, and he
was not thereafter able to interest the committee in taking
up the cudgel of what he doubtless considered a major
issue "
As far as the record shows, nothing transpired from
August 30 until Nolan's meeting with Neely on September
18, which was concerned with the asserted discrepancy in
Nolan's September sales" It.was, of course, Nolan who
initiated this conversation, and it is apparent from the
credited testimony of employees Berard and Chalachanis
that both Nolan and Neely became quite loud and
argumentative during the course of their conversation and
that at the end of it Nolan accused the other of being a
fraud and a cheat
It was on that day that Neely drafted the letter which
(according to Cahill's testimony) he hoped would provoke
the insubordination needed to provide an excuse for
Nolan's discharge I have, for reasons stated above,
discredited such testimony But assuming its accuracy, it
does not negate the predominantly personal motive of
Neely That is to say, I am convinced, in the light of all
circumstances, that Neely's reaction to Nolan's vigorous
and vocal presentation of his grievance was as a person
and employee and not as a union member In reaching
such conclusion, I have considered as particularly
significant the following factors
I There is a decided lack of evidence of antiunion
animus in this record As respects this element of proof,
General Counsel relies, as he must, on the evidence of
unfair labor practices engaged in by this Respondent in
the prior case (172 NLRB No 50) of which I have taken
judicial notice However, as General Counsel concedes,
the Respondent has effected compliance with the Board's
Order in that case, and the record shows that the
Respondent and the Union have consummated a
collective-bargaining agreement Under these
circumstances, the former case is, indeed, a slender reed
on which to rely "
It is true that there is some evidence in the instant
record which indicates that the Respondent still does not
"Nolan testified that, when he spoke with Neely on September 18
regarding the bonus , he was speaking not only for, himself but for other
salesmen as well However, he did not mention such "other salesmen"
during the conversation accordingly , I attach very little probative weight
to this kind of self-serving testimony
"Nolan testified that around the first of September he spoke with both
Neely and Helfrich concerning his August bonus but, receiving no
satisfaction from them , let the matter drop
"in this connection , the language of the court in N L R B v Park Edge
Sheridan Meats Inc 341 F 2d 725 (C A 2), seems appropriate "But
when a party that has erred in the past places itself in the hands of capable
counsel who gives reasonable advice for the future , and there is a
significant improvement in its conduct, it ought not be viewed as having
such a propensity for sin that every episode is given the worse
interpretation , or be condemned by indiscriminate repetition of the phrase
that its conduct ` must be accessed against the background of its earlier
unfair labor practices See also Tennessee Packers , Inc From
Morn Divicion , 155 NLRB 206, 208
embrace the Union with open and loving arms,'" but this,
of course, is not required by the statute As applied to the
issue in the instant case, the statute only requires that the
employer not treat an employee differently because of
union proclivities, and it is to be recalled "the discharge of
an employee is ordinarily a matter within management's
prerogative and, consequently, an unlawful discharge is
not lightly to be inferred, 'V L R B v McGahev, 5 Cir
1956, 233 F 2d 406, 38 LRRM 2142 ""
2 It was Nolan who again raised the bonus issue as
respects his personal complaint in the September 19
interview with Neely which led directly to his discharge,
since the letter given him by Neely contained only a
warning
3 There is nothing in the record to taint Helfrich's
postdischarge offer to reinstate Nolah' if Neely would
approve, it being perfectly natural and prudent for the
president of the Company not to go over his sales
manager's head respecting such an individual matter This
position certainly tends to show that the discharge was
essentially a personal decision of Neely's and did not
represent a policy of the Respondent
4 Neely's highly emotional temperament, as reflected
by his demeanor on the witness stand, indicates his
inability to withstand criticism and misconduct of the type
attributed to him by Nolan, making the conclusion all the
more tenable that it was the personal accusation of fraud
and cheating and not the posture of Nolan qua union
member that ignited the discharge
In sum, and paraphrasing the language of the Board in
a recent case," it seems to me that it may be as fairly
inferred that Nolan was discharged for irritating his
Employer as for any union-connected considerations, and
that Neely was, in consummating the discharge, reacting
angrily to an employee thought to be speaking out of turn
rather than an employee defending a union position
Accordingly, I find and conclude that the General Counsel
has failed to sustain his burden of proof in this case, and
will recommend that the complaint be dismissed in its
entirety '"
CONCLUSIONS or LAW
I The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2 Fhe Union is a labor organization within the
meaning of Section 2(5) of the Act
3 The Respondent has not engaged in the unfair labor
practices alleged'in the complaint
RECOMMENDED ORDER
It is ordered that the complaint be, and the same is
hereby, dismissed in its entirety
"This evidence is (I) the statement of Helfrich at the June meeting that
the new bonus plan would stand irrespective of how the union members
felt, and (2) the statement of Helfrich in July to Nolan (re Doin's 2-week
suspension) that he did not like to see Nolan "get involved with the likes
of Doin and didn't like the idea that [he] was mixed up with the Union"
Indeed, on that occasion, Helfrich indicated that he liked Nolan and
thought him to be a good salesman
"Cited in N L R B v Buddv Schoellkopf Producic, Inc , 410 F 6d 82
(C A 5)
"Ramona 'c Mexican Food Products, Inc 175 NLRB No 27
"In his brief, General Counsel cites New York Trap Rock Corp , 148
NLRB 374 However, that case may be distinguished on the ground that
the alleged discrimmatee there was discharged for filing grievances under a
collective-bargaining agreement which, of course, is not the case here
Compare Jackame'c Reinforcing-Erecrorc Inc 158 NLRB 99