Hagan Oldsmobile Cadillac

National Labor Relations Board - Board Decisions

Aug 4, 1970

184 N.L.R.B. 816 (N.L.R.B. 1970)

816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George H. Gentithes , Thomas W. Evans, and Philip
S. Hagan , Partners , d/b/a Hagan Oldsmobile-
Cadillac and International Association of Machin-
ists and Aerospace Workers, District Lodge No.
63, AFL-CIO. Case 6-CA-4757
August 4, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On April 9, 1970, Trial Examiner James V. Con-
stantine issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner further found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended that such allegations be dismissed.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,'
and the General Counsel filed cross-exceptions 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
briefs, and the entire record in the case , and hereby
adopts the findings ,2 conclusions , and recommenda-
tions of the Trial Examiner as modified herein.3
In agreement with the Trial Examiner, we find
that the Respondent discharged employees Thomas
J. Richmond and Louis Vore in violation of Section
8(a)(3) and (1) of the Act.
Contrary to the Trial Examiner , we find that the
Respondent engaged in conduct violative of Section
8(a)(1) of the Act. The record shows that on
March 27, 1969, in an election for the Respon-
dent 's service department employees in Case
6-RC-4931, nine votes were cast for, and nine
against , the Union , which thereby lost the election.
Between June and September 1969, the Respon-
dent , through Philip S . Hagan , a partner and
general manager , engaged in the following activity:
Stating at an employee meeting that the Respon-
dent was "making a study of additional benefits"
and the employees would be receiving additional
benefits not later than September , including free
health insurance , uniforms , guaranteed wages, and
vacation pay; providing those benefits during this
period ; comparing the benefits with those of "the
union shop ... up the street "; asserting that the
Respondent 's benefits would be as good as or better
than those of said "union shop " or any other dealer
in the area , " there would not be a union in the
shop," the mechanics would not have to pay union
dues , and the Respondent 's benefits were better
than those the Union would have obtained for
them ; handing each of the employees a paper
describing the benefits ; and telling the employees
that Hagan knew some of the mechanics "were
union ," but that he was "antiunion naturally."
The Trial Examiner , finding no evidence of union
activity at the Respondent 's plant following the
election of March 27, found that the instant record
did not therefore overcome the presumption of the
legality of the Respondent 's conduct , and that the
conduct was therefore not violative of Section
8(a)(1). In support of his finding , the Trial Ex-
aminer , conceding the existence of union animus as
evidenced by the Respondent 's remarks , concluded
that neither the promises therein contained nor
their effectuation could reasonably be said to have
been calculated or designed to undermine the
Union , and that in other respects the remarks were
merely explanatory of "the situation which flowed
from the Union 's loss of the election in 1969."
Contrary to the Trial Examiner , we find that,
while union activity declined somewhat after the
March 27 election , it did not cease, but on the con-
trary continued during the summer of 1969. Thus
according to employee Thomas J. Richmond, an
8(a)(3) discriminatee , on several occasions after
the election , during the summer of 1969,
Richmond , an organizer in the preelection cam-
paign and a union election observer, talked to the
Union 's business representative about the possibili-
ty of having another election in a year , and he also
' The Respondent has requested oral argument. The request is hereby
denied inasmuch as the record , the exceptions , and the briefs adequately
present the issues and the positions of the parties
' These findings and conclusions are based, in part , on credibility deter-
minations of the Trial Examiner to which the Respondent has excepted.
After careful review of the record, we conclude that the Trial Examiner's
credibility findings are not contrary to the clear preponderance of all rele-
vant evidence . Accordingly , we find no basis for disturbing those findings.
Standard Dry Wall Products, 91 NLRB 544 , enfd . 188 F.2d 362 (C.A 3)
* We disavow the Trial Examiner's reference to the Fair Labor Standards
Act as being irrelevant to any issue herein presented We also do not rely
on the Trial Examiner 's finding that Tyler was not chastened for not attend-
ing the September 10 affair , inasmuch as the Trial Examiner also found, in
accord with the record, that Tyler, a part -time janitor, was not invited to at-
tend.
184 NLRB No. 89
HAGAN OLDSMOBILE-CADILLAC
continued discussing the Union with employees and
answering their questions in that regard. We further
find, contrary to the Trial Examiner, that the
Respondent's discussion of benefits at its postelec-
tion meetings with employees were coupled with
antiunion remarks designed to show the employees
that it would be an act of futility to select the Union
as their bargaining representative. In these circum-
stances, we conclude that the Respondent's
speeches, containing express or implied promises of
specific benefits or improvements and conditions of
employment if the employees refrained from join-
ing or assisting the Union, followed by the imple-
mentation of such benefits, were violative of Sec-
tion 8(a)(1) of the Act, and we so find.'
We further find that the Respondent, by
discharging employees Richmond and Vore
because of their union affiliation, was guilty, not
merely of isolated acts in violation of the right of
self-organization, but also of violating the broad
provisions of Section 8(3) of the Act.5 We shall
therefore amend paragraph 1(b) of his Recom-
mended Order and the second indented paragraph
of the notice attached to his Decision to provide for
a broad cease-and-desist Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
George H. Gentithes, Thomas W. Evans, and Philip
S. Hagan, Partners, d/b/a Hagan Oldsmobile-Cadil-
lac, Washington, Pennsylvania, its agents , succes-
sors, and assigns , shall take the action set forth in
the Trial Examiner's Recommended Order, as so
modified:
1. Insert in paragraph 1(a) of the Trial Ex-
aminer 's Recommended Order, and in the first in-
dented paragraph of the notice attached to his
Decision, after the words "or any other labor or-
ganization ," the words "by promising or instituting
economic benefits, including free health insurance,
uniforms, guaranteed wages, and vacation,".
2. Delete from paragraph 1(b) of the Recom-
mended Order, and from the second indented para-
graph of the notice, the words "In any like or re-
lated manner" and substitute therefor the words
"In any other manner."
3. Add to paragraph 2(a) of the Trial Examiner's
Recommended Order and to the third indented
paragraph of the notice, after the words "former
position or," the words "if these jobs no longer ex-
ist, to."
817
4 Our decision in Welsh Sporting Goods Corp. 181 NLRB 848, is clearly
distinguishable , for there the announcement and implemenattion of the
benefits were made without any reference to antiunionism.
N L R B v. Entwistle Mfg Co , 120 F 2d 532 (C.A. 4, 1941), enfg. 23
NLRB 1058
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is
an unfair labor practice case brought under Section
10(b) of the National Labor Relations Act, herein
called the Act (29 U.S.C. 160(b)). It was initiated
by a complaint issued on December 29, 1969, by
the General Counsel of the National Labor Rela-
tions Board, herein called the Board, through the
Regional Director for Region 6 (Pittsburgh,
Pennsylvania ), naming as the Respondent a part-
nership called Hagan Oldsmobile-Cadillac. That
complaint is based on a charge filed on September
29, 1969, and an amended charge filed on
November 24, 1969, by International Association
of Machinists and Aerospace Workers, District
Lodge No. 63, AFL-CIO, herein called the Union.
In essence the complaint alleges that Respon-
dent, a partnership composed of George H. Gen-
tithes, Thomas W. Evans, and Philip S. Hagan, has
violated Section 8(a)(1) and (3), and that such
conduct affects commerce within the meaning of
Section 2(6) and (7) of the Act. Respondent has
answered admitting some allegations of the com-
plaint 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 Pittsburgh,
Pennsylvania, on February 17, 1970. All parties
were represented at and participated in the trial
and had full opportunity to adduce evidence, ex-
amine and cross-examine witnesses, file briefs, and
offer oral argument . When the General Counsel
rested, Respondent moved to dismiss. This motion
was denied. Respondent and the General Counsel
have submitted briefs. The General Counsel's "mo-
tion to correct transcript" is granted since it is not
opposed.
This case presents the issues of whether Respon-
dent: (1) Announced, and then granted, economic
benefits to its employees in order to dissuade them
from joining, supporting, or assisting the Union; (2)
informed employees of the futility of joining, sup-
porting, or assisting the Union; and (3) discrimina-
torily discharged employees Thomas J. Richmond
and Louis Vore because they were members of or
engaged in activities on behalf of the Union, or in
other protected activities, or both.
Upon the entire record in this case, including the
stipulations of the parties, and from my observation
of the witnesses, I make the following:
818 DECISIONS OF NATIONAL
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent , a partnership composed of George
H. Gentithes , Thomas W. Evans, and Philip S.
Hagan , is engaged at Washington , Pennsylvania, in
selling and servicing new and used automobiles.
During the year preceding the issuance of the com-
plaint herein , Respondent's gross volume of busi-
ness exceeded $500,000, while at the same time
Respondent received goods valued in excess of
$50,000 directly from points outside the Common-
wealth of Pennsylvania . I find that Respondent is
now, and has been at all times material herein, an
employer engaged 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 jurisdic-
tion over Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and at all times material
herein has been , a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. General Counsel 's Evidence
1. As to Section 8 ( a)(1) violations
On March 27, 1969, pursuant to a petition filed
in Case 6-RC-4931 by the Union , an election was
held among Respondent 's service department em-
ployees . Employee Thomas J. Richmond acted as
an observer for the Union at that election . As nine
votes were cast for , and nine against , the Union, the
Union lost said election and the Regional Director
so certified on April 7, 1969.
In June 1969, Philip S. Hagan , one of Respon-
dent 's partners and its general manager , addressed
a meeting of its employees . Among other things
he informed the employees that Respondent was
"making a study of additional benefits " and that
they would be receiving additional benefits not later
than September of that year . These he described as
free health insurance , uniforms , guaranteed wages,
and vacation pay.
Some of these benefits , including free health in-
surance and increased vacation pay, did not go into
effect until early in September 1969. On the other
hand free uniforms were supplied beginning August
1, 1969.
Hagan again referred to these forthcoming
benefits at another meeting of Respondent's
mechanics called by him in June or July 1969. Dur-
ing his talk Hagan compared these benefits with
those of "the union shop ... up the street," i.e.,
Beatty Buick , and asserted that those of Respon-
dent would be as good as or better than those of
said "union shop ." Hagan also claimed Respon-
dent 's benefits would be as good as those of any of
the other dealers in the area . Continuing, Hagan
LABOR RELATIONS BOARD
mentioned that " there would not be a union in the
shop " and that the mechanics would not have to
pay dues . He also added that Respondent's said
benefits were better than those the Union could
have obtained for them.
In early September 1969, Hagan again enu-
merated the foregoing benefits to employee Louis
Vore.
In August 1969, Hagan spoke individually to the
mechanics and gave each of them a piece of paper
describing said benefits . He also told them that he
knew some of the mechanics "were union," but
that "he was antiunion naturally." Then he
proceeded to discuss the benefits which he was
going to give to them.
2. As to 8(a)(3) violations
a. Background
In the summer of 1968 the Union started or-
ganizational activities among Respondent 's service
employees . Theodore C. Bold , a business represent-
ative of the Union , directed the campaign. He was
assisted by Thomas J. Richmond who worked in
Respondent 's shop , a part of its service department.
As noted above, Richmond also acted as an ob-
server in the election of March 27, 1969 . Hagan,
one of Respondent 's partners , testified that , before
he discharged them , he was "aware of the fact that
both Vore and Richmond had engaged in activities
on behalf of the IAM organizational activities." In
addition , Richmond and Vore signed union cards.
Richmond also solicited others to sign cards and ar-
ranged for meetings of employees with Union
Representative Bold.
In February 1969, Union Representative Bold
called on Respondent and requested that the Union
be recognized as majority representative of the ser-
vice department employees . Bold presented for in-
spection to Respondent 's partners Hagan and Gen-
tithes "the authorization cards," among which were
those of Vore and Richmond . Said partners ex-
amined and looked at these cards.
b. The discharge of Thomas J. Richmond
Richmond was very active in the union move-
ment at Respondent 's shop . At that time he was
employed by it as an auto mechanic . Among other
things he interested Union Representative Bold in
speaking to the employees and, as described above,
arranged and organized three meetings of em-
ployees at which Bold spoke . Richmond also sol-
icited , with much success, many employees to
sign union cards . He also signed such a card him-
self. In the summer of 1969, Respondent Partner
Hagan told Richmond that he knew that the latter
was "prounion" and asked "how did that come
about?"
On the morning of September 11, 1969, Foreman
Vic Lombardo informed Richmond that the latter
HAGAN OLDSMOBILE -CADILLAC
was "laid off as of the end of to-day." When
Richmond requested a reason therefor , Lombardo
replied, "Lack of co-operation, for not attending
the banquet last night," and added that " there was.
other things of course that led up to it." However,
Lombardo never mentioned these "other things."
Later that day Richmond spoke to Hagan in the
presence of Lombardo. Upon Richmond' s asking
Hagan whether Richmond had been laid off or
fired, Hagan answered, "laid off indefinitely."
Thereupon Richmond asked why he was being laid
off. Hagan replied, "Lack of co-operation ... the
meeting the night before "; and added "there were
other things of course ." Although Richmond then
protested that he had never before failed to
cooperate , Hagan insisted that he "didn 't have to
go beyond last night."
Sometime prior to September 10, 1969, Hagan
announced at a meeting of employees called by
Respondent , at which Richmond was present, that a
banquet in the near future would replace its annual
picnic . Hagan further said that he expected all em-
ployees to attend but did not indicate it was manda-
tory or compulsory that they do so. Sometime later
Hagan set the banquet meeting for September 10.
A few days before September 10 a couple of em-
ployees, neither of whom was Richmond, asked
Hagan, without success, to be excused from going
to this banquet.
The meeting of September 10, 1969, was not the
first held for service department employees. In fact
"service meetings" were held by Respondent once
a month in the evening . These were neither on
company time nor were employees paid for attend-
ing them. Yet Richmond and other employees
sometimes did not attend them, so that usually but
50 percent of the employees showed up at them.
But not one employee has ever been warned,
disciplined, or discharged for failing to attend such
monthly service meetings.
Further, the banquet meeting of September 10,
as noted above, "was in essence a replacement for
the summer picnic ." Sometimes in the past some
employees did not attend such picnics, but they
were not discharged therefor.
In late August or early September 1969, Frank
Reynolds, Respondent 's service manager , reminded
Richmond of the September 10 banquet. Neverthe-
less Richmond replied that he thought he could not
make it. Despite this, Reynolds said nothing in-
dicating that failure to attend would expose
Richmond to discharge. Nor did Reynolds inquire
why Richmond would not attend.
During the day of September 10 Foreman Vic
Lombardo also reminded Richmond about the
banquet meeting that evening . Richmond replied
that he could not make it. However, Lombardo did
not then mention that Richmond risked discharge
by being absent therefrom. And Lombardo did not
ask why Richmond would be absent. Indeed, no su-
pervisor or company official asked Richmond why
he could not go. Further , no one from management
819
told Richmond that attendance at this meeting was
compulsory and that being absent would result in
discharge. Other witnesses for the General Counsel
also testified to the same effect.
Sometime before September 10 a notice ap-
peared on the bulletin board notifying employees of
the September 10 banquet meeting but nothing
contained therein indicated that attendance was
compulsory or that failure to come could result in
discharge.
Richmond finally testified that Hagan long prior
to September 10 had told him that factory
representatives from Oldsmobile and Cadillac
would be present at the banquet meeting of Sep-
tember 10, and that suchrepresentatives were "go-
ing to have something to do with customer relations
and the employees at Hagan Olds-Cadillac."
Nevertheless Hagan omitted reference to discharge
as a penalty for remaining away from the banquet
meeting.
Sometime during the day of September 10, 1969,
Foreman Vic Lombardo told employee Clarence
Beatty that he, Vic, knew that Richmond was not
going to the banquet that night.
c. The discharge of Louis Vore
Vore, a mechanic for Respondent , signed a union
authorization card and also " talked in favor of the
Union with other employees, in the shop, at dif-
ferent times ... [ also] at different places."
On September 11, 1969, Service Manager Frank
Reynolds informed Vore that Vore was being laid
off at 5 p.m. that day. When Vore requested an ex-
planation therefor, Reynolds answered, "lack of co-
operation ... by not attending the banquet ... the
night before." Shortly thereafter Vore asked
partner Hagan whether Vore was laid off or fired.
Replying, Hagan said that Vore was being laid off
because of lack of cooperation by not attending the
banquet. Admittedly Vore did not go to that
banquet.
Sometime before September 11, 1969, and
probably in July, Hagan had told a meeting of all
employees that a banquet meeting would be held to
replace the summer picnic, and that he would like
all service employees to attend ; but Hagan did not
mention that employees had to attend or be subject
to discharge . This banquet was to take place after
working hours , and employees were not to be com-
pensated for going to it . Factory representatives
would be present.
In the past Hagan had been holding monthly
meetings , during nonworking time, for the service
department employees . But attendance at these as-
semblages was not compulsory and those failing to
come to them were not discharged or otherwise
disciplined therefor.
About September -1, 1969 , Service Manager
Frank Reynolds inquired of Vore whether Vore
would attend the banquet meeting on September
10. Vore responded by saying that a "previous en-
427-835 0 - 74 - 53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gagement" prevented him from going. Employee
Clarence Beatty overheard this conversation. A few
days later Hagan asked Vore whether Vore was
coming to the banquet, but Vore replied in the
negative. Yet Hagan did not refer to any penalty for
not going or insist that attendance was mandatory.
Finally, on September 10 Reynolds again asked
Vore if Vore would attend the banquet, stating that
an answer was necessary to aid in determining the
number of "plates" to be reserved there. Again
Vore answered that he would not be there. But no
allusion was made to the fact that attendance was
compulsory or that those not going to it would be
disciplined . Reynolds made a similar statement
about reservation of plates to other employees, in-
cluding Clarence Beatty. However, on the after-
noon of September 10 Hagan did tell Vore that he,
Hagan , would like Vore to be there.
B. Respondent's Evidence
1. Philip S. Hagan 's testimony
Philip S. Hagan, a partner in and general
manager of Respondent , called a general meeting
of employees sometime in June 1969. In addition to
announcing the desire to improve on benefits
"where we can," he also stated that, subject to
"clearing" the same with General Motors, Respon-
dent would hold "an employer relation meeting"
before the new cars appeared on the market. The
date for said meeting was tentatively set for Sep-
tember 10, he told the employees. Referring to
other dealers in the area, Hagan said Respondents
would try to do as well as, or better than, such
dealers in granting benefits to employees. Then he
described improvements in benefits relating to
health insurance, uniforms, guaranteed wage rates,
vacation pay, and "school pay."
Guaranteed hourly wage rates are important
because prior to this a mechanic received 50 per-
cent of the gross charge for work he performed for
the customer. But under the new plan he was
guaranteed a minimum rate. If said 50 percent is
less than the guaranteed rate per hour, then
Respondent makes up the difference. Of course, if
the 50 percent amounts to more than the guaran-
teed rate the mechanic retains the excess.
Another meeting of employees was summoned by
Hagan in July 1969. This time Hagan told them that
beginning August 1 Respondent would provide free
uniforms and free health insurance, and that com-
mencing September 1 the guaranteed wage rates
would become effective. He also confirmed Sep-
tember 10 as the date for the "employee-owner
relations meeting," and told them, "This is a GM
sponsored program [and] we required one hundred
percent attendance at" it. (However, employee
David Tyler was not invited and did not attend.
Tyler was in the unit and voted in the election.) But
Hagan denies that at this or the prior meeting in
June he mentioned any union or not having one at
Respondent's place of business.
All employees except Richmond and Vore came
to the September 10 meeting; i.e., 32 out of 34. To
make sure that all employees became aware of the
importance of attending, Hagan in August in-
structed Service Manager Frank Reynolds to im-
press such significance upon each employee in-
dividually by speaking to each one separately. In
addition, a notice was posted on the bulletin board
advising employees of this September 10 meeting.
Finally, Respondent closed early on September 10
to furnish employees with ample time to go home
and then come to the meeting.
On September 10 Hagan told Vore he would see
Vore at the meeting. Vore smiled but said nothing.
Although Hagan at a meeting of mechanics in the
summer of 1969 mentioned that Respondent's
benefits were better than those of any other dealer
in town, he did not at any time compare such
benefits with those in any "contract" or refer to a
"union" shop. In fact Hagan at no time mentioned
a union in this or any other talk with employees.
On September 11, 1969, Hagan told Foreman
Vic Lombardo to lay off Richmond "as of the end
of the day" for lack of cooperation in not going to
the September 10 "owner-relations meeting." Later
on September 11 Hagan also so informed
Richmand when the latter came to see him. But
Richmond offered no excuse for his absence from
said meeting. That same day Hagan also laid off
Vore for the same reason . Nor did Vore at that
time give a reason for being absent.
Hagan had knowledge on the afternoon of Sep-
tember 10 that Richmond and Vore would not go
to the meeting that evening. So he sent word to
them by "emissaries," i.e., supervisors, that they
were expected to attend it. But neither Hagan nor
the "emissaries " referred to any discipline which
would be inflicted if employees failed to come.
Finally, Hagan testified that he knew before Sep-
tember 10 that Richmond and Vore each had
signed a union card.
2. Victor Lombardo's testimony
At all times material Lombardo has been
Respondent's body shop foreman. As such he su-
pervised Thomas J. Richmond.
Partner Hagan addressed a meeting of employees
in July 1969. Among other things Hagan discussed
the new benefits about to be instituted. He also
"mentioned about the special meeting coming up,"
i.e., an employees-owner meeting, and told em-
ployees present that he expected everybody, "one
hundred percent," to go to it. However, Hagan did
not refer to the special meeting as replacing the
summer picnic. Sometime thereafter Service
Manager Frank Reynolds called a meeting of the
service department employees and "mentioned" to
them the "employees-owner meeting coming up."
HAGAN OLDSMOBILE -CADILLAC
In addition a notice announcing the latter meeting
was posted on Respondent's bulletin board by the
timeclock.
At some time thereafter Hagan instructed Lom-
bardo to inform those working under the latter "to
have [Lombardo's] men" at said special meeting.
Pursuant to said direction Lombardo so informed
his men, including Richmond. In addition, Lombar-
do repeated said request to his men about 4:50 p.m.
on September 10, 1969, the day of the special
meeting . But Richmond did not disclose whether he
would attend or not, saying only that he would "try
to make it."
On September 11, the next day, Hagan directed
Lombardo to lay off Richmond. When Lombardo
did so, Richmond asked for an explanation. Reply-
ing, Lombardo accused Richmond of lack of
cooperation by failing to "participate in the activi-
ties."
Lombardo finally testified that although "every-
body was supposed to be there . . . the whole
crowd," employee David Tyler was absent
therefrom. Yet Tyler suffered no disciplinary action
for his failure to show up at the meeting of Sep-
tember 10.
3. The testimony of Frank Reynolds
Reynolds is Respondent's service manager. In
late June and again in July 1969, Hagan called a
meeting of the employees. Among other things ten-
tative plans were made at the June assembly to hold
"an employee-owner relations meeting put on by
General Motors ..." But Hagan said nothing about
a summer picnic on this occasion. At the July meet-
ing Hagan announced the date of the employee-
owner relations meeting and added "this [is] a
meeting for all employees of Hagan Olds Cadillac."
But no mention was made that this would be a sub-
stitute for the summer picnic.
Following the July meeting Reynolds placed a
notice on the clock concerning the employee-
owner relations meeting , and also instructed
Foreman Lombardo to inform all body shop em-
ployees to attend said meeting . In addition,
Reynolds spoke to all other employees under his su-
pervision, i.e., all but those in Lombardo's body
shop. All except employee Louis Vore promised to
come. Vore answered that he did not know if he
could make it. Reynolds reported this to Hagan.
Finally, at a meeting of all service department em-
ployees, including Richmond and Vore, Reynolds
told those present to attend the employee-owner
relations meeting. Nevertheless at no time did
Reynolds inform employees they would be
disciplined if they did not attend.
On September 11, the day following the em-
ployee-owner relations meeting, Hagan told
Reynolds to lay off Richmond and Vore "due to
noncooperation." So Reynolds laid off Vore, who
worked directly under him, and commanded Lom-
821
bardo to lay off Richmond. Still Vore offered no
excuse for not being at the meeting the day before.
C. Concluding Findings and Discussion
Preliminarily it seems desirable to point out that
on this branch of the case the Respondent's
evidence in large part corresponds to that of the
General Counsel. Where dispute or contradiction
exists, I have credited the General Counsel's ver-
sion for two reasons:
(a) On the basis of demeanor, I accept the
General Counsel's testimony as more credible; and
(b) certain discrepancies or inconsistencies in
Respondent's evidence convince me that Respon-
dent's evidence is less credible than the General
Counsel's. In this respect, two illustrative examples
suffice. Hagan testified that on September 10
Respondent closed early, i.e., about 4 p.m., to pro-
vide employees with ample time to go home and
then come to the meeting that evening. Yet
Foreman Lombardo testified that 10 minutes be-
fore the regular 5 p.m. quitting time on September
10 he asked employees under his supervision to be
sure to go to the meeting scheduled for that even-
ing. If the employees were dismissed on September
10 at 4 p. m., as Hagan claims , then it is difficult to
understand why Lombardo's body shop employees
were still working at 4:50 p.m.
Another example involves a notice posted by
Respondent on its bulletin board relating to the
meeting to be held in the evening of September 10.
According to Respondent 's witnesses this notice did
no more than apprise employees of the date of the
meeting . But these same witnesses claim , contrary
to the General Counsel's witnesses , that they told
employees that such employees had to attend that
meeting . If, as such witnesses of the Respondent
claim, attendance at such meeting was compulsory,
it is hard to comprehend why such an important
fact was omitted from the posted notice announc-
ing such meeting.
1. As to Section 8(a)(1) violations
Accordingly , I find that in June 1969, Hagan told
employees that they would be receiving additional
benefits not later than September 1 of that year,
and that such benefits consisted of free health in-
surance , uniforms , guaranteed wages, and vacation
pay. Also, I find that the employees did receive
such benefits between August 1 and September 1.
But I find no violation of the Act either in the
promise of such benefits or in fulfilling said
promise . This is because I find no union was or-
ganizing Respondent 's employees at the time. Since
no union appeared on the scene during this period
the state of the record does not overcome the pre-
sumption that Respondent 's action was lawful. Cf.
Welsh Sporting Goods Corp., 181 NLRB 848, fn. 1.
Patently an employer may increase or promise to
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increase benefits so long as such conduct is not in-
tended to influence employees in the selection or
designation of a collective -bargaining representa-
tive . But I find that the last time a union demon-
strated an interest in Respondent 's employees was
in late March 1969 when the Union lost the elec-
tion ; and that the record is devoid of evidence of
union activity thereafter . Hence it cannot
reasonably be inferred that said promise and its ef-
fectuation were calculated or designed to un-
dermine the Union , for no union was displaying any
concern in Respondent 's employees.
Further, I find that Hagan again adverted to said
benefits at another meeting of employees held by
Respondent in July 1969. For the same reasons I
find that such alluding to such benefits does not
contravene the Act ; i.e., it was not intended to
destroy adherence to a union . At this meeting
Hagan also compared these benefits with those of a
nearby union shop and of other dealers in the area,
and observed that Respondent 's benefits exceeded
those which the Union could have obtained for
them . But I find nothing coercive about these re-
marks and, therefore , find that they, too, are not
forbidden by Section 8(a)(1) of the Act.
At the July 1969 meeting , above noted, Hagan
also stated that there would not be a union in
Respondent 's shop and that the mechanics would
not have to pay dues . While this utterance demon-
strates union animus , I find that it is not coercive,
as it merely explains the situation which flowed
from the Union 's loss of the election in the spring
of 1969 . Hence I find it does not transgress Section
8(a)(1) of the Act.
In early September 1969, Hagan again recited to
employee Louis Vore the benefits narrated above.
In August 1969, he also described them to the
mechanics individually . For the same reasons set
forth above, I find that the foregoing conduct is not
coercive and hence not barred by the Act.
When Hagan spoke to the mechanics in August
1969, as described in the preceding paragraph, he
informed them that he knew some of them "were
union " but that he was "anti -union naturally."
Although I find that this statement depicts antiu-
nion hostility , I nevertheless find that it is not coer-
cive . Hence I find that it does not transgress the
Act, for antiunion expressions do not amount to un-
fair labor practices . J. P. Stevens & Co., Inc., 181
NLRB 666; N.L.R.B. v . Threads, Inc., 308 F.2d 1, 8
(C.A. 4); N.L.R.B. v . Howard Quarries , 362 F.2d
236 (C.A. 8). Nor does it contain any threats or ex-
press any concern with the union membership of
such employees . Intersuburban Hometown
Newspapers , 181 NLRB 462.
2. As to the discharge of Thomas J. Richmond
It seems desirable to bear in mind that "Direct
evidence of a purpose to discriminate is rarely ob-
tained , especially as employers acquire some so-
phistication about the rights of their employees
under the Act; but such purpose may be established
by circumstantial evidence." Corrie Corporation v.
N.L.R.B., 375 F.2d 149, 152 (C.A. 4). "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). "Nowadays it is usually a case of
more subtlety...." N.L.R.B. v. Neuhoff Bros., 375
F.2d 372, 374 (C.A. 5). Accord: Shattuck Denn
Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A.
9), where the court observes that "In such cases,
the self-serving declaration is not conclusive; the
trier of fact may infer [a discriminatory] motive
from the total circumstances proved."
An appraisal of the entire record convinces me-
and I find-that Richmond was discharged for
union membership and activity, and that the reason
assigned for his dismissal , i.e., lack of cooperation
in failing to attend the special meeting of Sep-
tember 10, is a pretext to disguise the real cause.
This ultimate finding is based upon the entire
record and the following subsidiary facts which I
hereby find as facts.
Respondent entertained union animus . It was not
of an intense nature, nor was it persistently
manifested to employees . Yet it was patent to em-
ployees that Respondent was opposed to unions. Of
course an employer is free to dislike unions and to
convey such a position to employees; and so com-
municating his views to employees does not amount
to an unfair labor practice. N.L.R.B. v. Threads,
Inc., 308 F.2d 1, 8 (C.A. 4). Nevertheless union
animus is a factor which may be evaluated in ascer-
taining the true motive prompting the discharge of
an employee . Maphis Chapman Corp. v. N.L.R.B.,
368 F.2d 298, 304 (C.A. 4); N.L.R.B. v. Georgia
Rug Mill, 308 F.2d 89, 91 (C.A. 5).
In addition I find that Respondent was aware of
Richmond's union membership and activity. Not
only did Hagan so testify, but I also impute
knowledge of such activity to Respondent by
reason of the fact that Respondent operated a small
plant. Under the Board's small plant rule an em-
ployer's knowledge of union activity at his plant
may be inferred from that fact alone. I draw this in-
ference. Angwell Curtain Company, Inc. v.
N.L.R.B., 192 F.2d 899, 903 (C.A. 7). And I
further find that Richmond was very active in the
union movement at Respondent 's place of business
and acted as its organizer there . Hence he obvi-
ously became a target for dismissal in order to
discourage or cripple the possibility of reviving the
union movement at the shop. "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).
Then , again, I find that no warning was given to,
Richmond that he exposed himself to the risk of
discharge for failing to go to the special meeting of
September 10. Failure to warn when a warning is
required by the circumstances discloses a dis-
HAGAN OLDSMOBILE-CADILLAC 823
criminatory motive if a discharge ensues for con-
duct not theretofore deemed worthy of a warning.
E. Anthony Sons v. N.L.R.B., 163 F.2d 22, 26-27
(C.A.D.C.); N.L.R.B. v. Melrose Co., 351 F.2d 693
(C.A. 8); Dunclick, Inc., 159 NLRB 10, 11, fn. 1. In
this connection I find ( crediting the General Coun-
sel's witnesses and not crediting Respondent's
evidence not consonant with the General Coun-
sel's) that Respondent requested , but did not direct
or command , employees to attend that meeting.
Hence I do not reach the question of whether a
warning is implicit in any command by the em-
ployer to an employee to do a certain act, as in the
case of directing an employee to perform duties in
the regular course of his employment.
Further, I find that it is reasonable to expect that
a warning should have been given because at-
tendance at this special meeting of September 10
was not included among Richmond's required
tasks, that it was held after regular working hours
(see statement of Respondent's counsel, p. 5 of
transcript), and Richmond was not to be compen-
sated for going to it. In addition, employees who
did not attend the monthly employees' meetings
conducted by Respondent were not disciplined for
not attending the same. Further, employee Tyler
was not chastened for not attending the September
10 affair. So for this reason also it is reasonable to
believe that employees should have been
forewarned that they risked discharge for nonat-
tendance at the special meeting of September 10.
Although I have found that this September 10
meeting was to be held after hours, I make no find-
ing as to whether the Fair Labor Standards Act
considered this compensable overtime and, if so,
whether Richmond could be required to attend
without receiving overtime pay. This is because
protesting a failure to comply with said Act ap-
parently is not an activity protected by our Act. See
Herman Mohland v. N.L.R.B., 394 F.2d 701 (C.A.
9).
Further, I find that ordinarily one would expect a
word of warning to an employee with a long period
of service before summarily discharging him. See
N.L.R.B. v. Midtown Service Co., Inc., et al., 425
F.2d 665 (C.A. 2), enfg. 171 NLRB 1306. This is
especially true since it is reasonable to infer that
"the permissible ground [i .e., nonattendance] alone
would not have led to the discharge , so that it was
partially motivated by an impermissible one."
N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341
F.2d 725, 728 (C.A. 2). Of course I realize that "an
employer may discharge an employee for good
cause, or bad cause, or no cause at all. ..."
N.L.R.B. v. Isis Plumbing & Heating Co., 322 F.2d
913, 922 (C.A. 9). And I am aware that the Board
may not " interfere with the unfettered right of
companies to exercise these personnel judgments."
N.L.R.B. v. United Parcel Service, Inc., 317 F.2d
912, 914 (C.A. 1). Accord: Portable Electric Tools,
Inc. v. N.L.R.B., 309 F.2d 423, 426 (C.A. 7).
Nevertheless , "an employer having a right to
discharge employees for ... unprotected activity
may not discharge them for a discriminatory reason
without violating Section 8 (a)(3) of the Act."
N.L.R.B. v. Coal Creek Coal Co., 204 F.2d 579, 583
(C.A. 10).
Since an employer may fire an employee for any
good cause, I find that nonattendance at the Sep-
tember 10 meeting constitutes such cause. But I
further find that where there exists a "justifiable
reason for discharge of an employee, if the real mo-
tive for the firing is discrimination against him
because of union activity or affiliation, there is a
violation of the Act." N.L.R.B. v. Challenge Cook
Bros., 374 F.2d 147, 152 (C.A. 6). Therefore, if
union activity is a substantial or motivating cause
for a discharge, such discharge will be found to be
tainted with a discriminatory motive even though
cause also exists for the termination. N.L.R.B. v.
Symons Mfg. Co., 328 F.2d 835, 837 (C.A. 7);
N.L.R.B. v. Mid-West Towel & Linen Service, 339
F.2d 958, 962 (C.A. 7). And I find that a substan-
tial or motivating , but not necessarily the sole,
reason contributing to Richmond 's discharge is his
union membership and activity , despite the ex-
istence of a lawful cause for such discharge.
N.L.R.B. v. Whitin Machine Works, 204 F.2d 883,
885 (C.A. 1); N.L.R.B. v. Park Edge Sheridan
Meats, 341 F.2d 725, 728 (C.A. 2).
3. The discharge of Louis Vote
It is my opinion, and I find, that Vore was
discharged for union affiliation or membership, and
that his absence from the meeting of September 10,
1969, was seized upon as a pretext to dissemble the
true reason. This conclusion is based on the entire
record in this case and the following factors which I
find as facts. I further find that Vore was
discharged and not laid off. Respondent's answer so
admits.
Respondent had knowledge that Vore had signed
a union card not only because Hagan so testified
but also because Respondent conducted a business
with a small number of employees. Hence the
Board's small plant rule, which infers that an em-
ployer in a small plant has knowledge of union ac-
tivity therein, has become operative in this case.
Vore also testified that he "talked in favor of the
union" with fellow employees in the shop, but that
no supervisor or representative of management ob-
served him doing so. While I find that such talk
may be treated as union activity, I find that Respon-
dent was not cognizant thereof. This is because I
find it is not reasonable under the small plant rule
to infer that an employer is aware of every conver-
sation engaged in by his employees. Absent inde-
pendent evidence of company knowledge of such
conversations, some of which were conducted in
the Company's parking lot, I find that the small
plant rule under the circumstances does not impute
such knowledge to Respondent.
Except for the fact that Vore was not active in
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union movement at Respondent 's plant, his
situation corresponds to that of Richmond. Hence I
find that Vore was discharged for the same reasons
(other than the fact that Richmond was active on
behalf of the Union) as those underlying the
discharge of Richmond. It follows, and I find, that a
substantial or motivating reason for Vore's
discharge is his union membership or affiliation,
and that , therefore , his termination violates Section
8(a)(3) and , derivatively, 8(a)(1), of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the 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) and (3) of the Act, I shall recommend that
the National Labor Relations Board order it to
cease and desist therefrom and to take specific af-
firmative action, as set forth below, designed to ef-
fectuate the policies of the Act. Since Respondent's
conduct does not demonstrate a pronounced
hostility to the Act, a broad order is not warranted.
Rather , limited relief in my opinion will be more
commensurate with the violations found. Ac-
cordingly I shall recommend that Respondent be
enjoined only from engaging in the activities herein
found to be unlawful and like or related conduct.
In view of the findings that Respondent dis-
criminated against Richmond and Vore I shall
further recommend that Respondent be directed
(1) to offer each immediate and full reinstatement
to his former position or one substantially
equivalent thereto, without prejudice to their
seniority and other rights and privileges enjoyed by
each, and (2) to make each whole for any loss of
earnings he may have suffered by reason of his
discharge.
In making Richmond and Vore whole Respon-
dent shall pay to each a sum of money equal to that
which each would have earned as wages from the
date of his discharge to the date of his reinstate-
ment or a proper offer of reinstatement, as the case
may be, less his net earnings during such period.
Such backpay, if any, shall be computed on a quar-
terly basis, and shall include the payment of interest
at the rate of 6 percent. I shall also recommend that
Respondent preserve and, upon reasonable request,
make available to the Board or its agents all per-
tinent records and data necessary to ascertain what-
ever backpay may be due.
Upon the basis of the foregoing findings of fact,
and upon the entire record , I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is an employer as defined in Sec-
tion 2 ( 2), and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. By discriminating in regard to the tenure of
employment of Thomas J. Richmond and Louis
Vore, thereby discouraging membership in the
Union , a labor organization , Respondent has en-
gaged in unfair labor practices prohibited by Sec-
tion 8 ( a)(3) and (1) of the Act.
4. The above -described unfair labor practices af-
fect commerce within the meaning of Section 2(6)
and (7) of the Act.
5. 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, I recommend that the Respondent , George H.
Gentithes , Thomas W . Evans, and Philip S. Hagan,
Partners , d/b/a Hagan Oldsmobile -Cadillac, its
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or
any other labor organization, by discharging em-
ployees or otherwise discriminating in any manner
in respect to their tenure of employment or any
terms or condition of employment.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise 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 mem-
bership in a labor organization as a condition of
employment 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) Offer Thomas J. Richmond and Louis Vore
each immediate and full reinstatement to his former
position or one substantially equivalent thereto,
without prejudice to their seniority and other rights
and privileges enjoyed by each, and make each
whole for any loss of pay he may have suffered by
reason of his discharge , with interest thereon at the
rate of 6 percent.
(b) Notify said Richmond and Vore, if presently
serving in the Armed Forces of the United States of
their rights to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request , make available
HAGAN OLDSMOBILE -CADILLAC
to the Board or its agents , for examination and
copying , all payroll records , social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(d) Post at its plant at Washington, Pennsyl-
vania, copies of the attached notice marked "Ap-
pendix."' Copies of said notice, on forms provided
by the Regional Director for Region 6, after being
duly signed by an authorized representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all
places where notices 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 6, in
writing, within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.2
IT IS FURTHER RECOMMENDED that the complaint
be dismissed insofar as it alleges unfair labor prac-
tices not found herein.
' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 .48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes . In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading " Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - " Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that
WE WILL NOT discourage membership in In-
ternational Association of Machinists and
Aerospace Workers, District Lodge No. 63,
AFL-CIO, or any other labor organization, by
discharging employees or otherwise dis-
825
criminating in any manner in respect to their
tenure of employment or any term or condition
of employment.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in
the exercise of rights guaranteed 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
under a valid union -shop clause as authorized
by Section 8(a)(3) of the Act.
WE WILL offer Thomas J. Richmond and
Louis Vore each immediate and full reinstate-
ment to his former position or one substantially
equivalent thereto, without prejudice to their
seniority and other rights and privileges en-
joyed by each , and make each whole for any
loss of pay he may have suffered by reason of
his discharge , with interest thereon at the rate
of 6 percent.
All our employees are free to become or remain,
or refuse to become or remain, members of said
District Lodge No. 63, or any other labor organiza-
tion.
Dated By
GEORGE H. GENTITHES,
THOMAS W. EVANS, AND
PHILIP S. HAGA,
PARTNERS , D/B/A HAGAN
OLDSMOBILE-CADILLAC
(Employer)
(Representative ) (Title)
We will notify immediately the above-named in-
dividuals, if presently serving in the Armed Forces
of the United States, of the right to full reinstate-
ment, upon application after discharge from the
Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 1536 Federal Building, 1000
Liberty Avenue, Pittsburgh, Pennsylvania 15222,
Telephone 412-644-2977.