Hanley Dawson Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1967

168 N.L.R.B. 944 (N.L.R.B. 1967)

944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hanley Dawson Chevrolet , Inc. and Automotive
Salesmen 's Association (A.S.A.), Independent.
Case 7-CA-5771
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
December 19, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On September 8, 1967, Trial Examiner Milton
Janus 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 desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the General Counsel and
Respondent filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs.
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, the
briefs, and the entire record in the case, and hereby
adopts the findings,I conclusions, and recommenda-
tions of the Trial Examiner.
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 and hereby or-
ders that the Respondent , Hanley Dawson
Chevrolet, Inc., Detroit, Michigan , its officers,
agents, successors , and assigns , shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order.2
' We adopt the Trial Examiner's finding that Respondent did not violate
Section 8(a)(1) of the Act by promulgating and publishing an oral no-
solicitation rule which allegedly prohibited union solicitation and organ-
ization at any time and at any place on Respondent's property. We rest
our adoption, however, only on the Trial Examiner's finding that
Respondent restricted the rule to solicitation on working time and not
to other times. As so restricted, the rule was lawful.
2 Delete from paragraph 2(b) of the Trial Examiner's Recommended
Order that part thereof which reads "to be furnished" and substitute
therefor "on forms provided ......
MILTON JANUS, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, was heard at Detroit, Michigan, on April 20
and 21, 1967, pursuant to due notice. The complaint was
issued on February 23, 1967, on charges filed November
1 and December 22,1966, and was amended on April 17,
1967, on a charged filed April 4, 1967. It alleged in sub-
stance that Respondent engaged in unfair labor practices
proscribed by Section 8(a)(1) and (3) of the Act, by
specified acts of interference, restraint, and coercion, and
by discrimination in the tenure and conditions of employ-
ment of certain named employees. Respondent's answer
did not admit that it was engaged in commerce within the
meaning of the Act, although at the hearing Respondent
stipulated as to the amount of its gross revenue and
purchases of materials and services directly from outside
the State of Michigan. The answer denied the commission
of any unfair labor practices. After the hearing, the
Respondent filed a brief.
Upon the entire record in the case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation, with its only office and
place of business at Detroit, Michigan, is engaged in the
retail sales and service of new and used automobiles and
trucks. During 1966, its gross revenues from all sources
exceeded $500,000, and the value- of materials and ser-
vices purchased directly from outside the State of
Michigan exceeded $800,000. The record establishes,
and I find, that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Automotive Salesmen 's Association (A.S.A.), Inde-
pendent , herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Facts
I note from official records of the Board, although not
introduced into evidence in this proceeding, that the
Union filed a petition in Case 7-RC-7483, on July 28,
1966, seeking to represent the Employer's salesmen. No
election was thereafter held and the petition was
withdrawn on November 30, 1966.
On October 6, 1966, Stanley Ellis, general manager of
the Company, discharged Maurice Stern, one of its new-
car salesmen, for reasons not relevant here, since the
complaint does not allege the discharge to be an unfair
labor practice. The next day, most of the 20 or so
salesmen walked out in protest to Stern's discharge.
Those who engaged in picketing did so with the support
of the Union. Within a few weeks all but five of the
salesmen abandoned the strike and returned to work. The
168 NLRB No. 123
HANLEY DAWSON CHEVROLET, INC. 945
last five who continued to strike did so until November
22, 1966, when they notified the Company individually
that they were ceasing picketing, and requested reinstate-
ment. They were reinstated and resumed work at their
former positions on December 5, 1966. The General
Counsel does not claim that any of the salesmen are enti-
tled to backpay for any wages lost between October 7
and December 5, 1966.
B. Before the Strike
The evidence as to remarks by Andrews, the new-car
manager, to the new-car salesmen, alleged to be in viola-
tion of Section 8(a)(1) is as follows:
1. John Joseph, a new-car salesman, who testified for
the General Counsel,and Andrews, the new-car manager,
testifying for the Respondent, agreed that the latter had
called a special meeting of the new-car salesmen some
time around July 15. Whether its true purpose was to
discuss a lag in sales, or whether that was only an excuse
to lead into a discussion of the Union is not material. In
any event, after a few minutes' talk on the need to im-
prove their sales work, Andrews turned to the fact that
there had been a lot of conversation among the salesmen
about the Union.' Joseph and Andrews agreed that An-
drews said in effect that he knew some of the salesmen
were actively participating in union matters, that it was
his job to get them to sell cars, and that they could not
make any money if they did not sell cars. Andrews also
said he knew who was leading the Union (a nonemployee
of the Company), and that he had heard unfavorable ru-
mors about him. McGann, one of the salesmen present at
the meeting, volunteered the information that it was he
who had originated the idea of having an automotive
salesmen 's union , and that he was a member. After An-
drews had finished speaking, Joseph asked him if he
meant that salesmen who were members or who were
thinking of joining the Union would be fired. Andrews
made no answer.
Andrews did not ask any salesman to identify himself
as a union member or supporter, nor did he accuse any-
one of that fact. The testimony as to the contents of his
speech also indicates that he made no promises of
benefits or threats of reprisals. I see nothing coercive in
Andrews' failure to respond to Joseph's question, since
nothing in his prior remarks indicated that the Company
would take reprisal on employees who supported the
Union. Nor does it seem to me that Andrews' opinion
about the quality of the union leadership constitutes an in-
terference,' restraint, or coercion on the right of the em-
ployees to support the Union if they wished to do so. I
therefore find no violation of the Act in Andrews' re-
marks 'at the meeting of the new-car salesmen held on or
aboutJuly 15, 1966.
The complaint also alleged that Andrews had coercive-
ly interrogated employees on or about September 30, but
there is no evidence to support that allegation. Joseph
testified only as to the one meeting described above, and
although he first testified it had been held early in Oc-
tober, his later recollection was that it had been held in
mid-July.
2. Joseph also testified that while he was in the
showroom one day early in September, he was watching
the picketing then going on at another auto dealership
across the street. Andrews came by just then and the two
of them fell into conversation. Andrews asked him
jokingly when they were going to picket Hanley Dawson,
and Joseph answered that you couldn't picket until you
had had a vote. Joseph then said he wished they would
hurry up and get the election over with, at which point,
according to Joseph, the conversation took a serious turn
with Andrews telling him that when it came time to vote,
he, Joseph, would vote the way Andrews told him to.
Joseph said he would not and Andrews again said that he
would.
Odierna, another new-car salesman, testified that he
happened to pass by just then and overheard Andrews tell
Joseph that he would vote the way Andrews told him to,
and that Joseph said he would not.
The Respondent did not cross-examine Joseph or
Odierna on their testimony as to this incident. In his
testimony on direct examination for the Respondent, An-
drews admitted that he and Joseph had had a good-hu-
mored conversation as to the picketing across the street
and that he had asked Joseph in a joking fashion whether
the Company was going to be next. He denied that
anything was said about an election at the Company, or
that he had said that Joseph would vote the way he
wanted him to. There was no cross-examination of An-
drews by the General Counsel on his testimony as to this
incident.
There was nothing in the demeanor of Joseph, Odierna,
or Andrews which would incline me to favor either ver-
sion. All of them spoke with apparent sincerity and yet,
obviously , only one of the opposing versions can be true.
Either Andrews told Joseph that he would vote as An-
drews wanted him to, or he did not. I note that the Com-
pany's attitude throughout this period was circumspect
and proper. Although the salesmen discussed the Union
while at work, no company official reprimanded any of
them , made any inquiries about their union activities or
support, or indicated in any way that the Company was
concerned about whether the Union won or lost . It seems
unlikely, in these circumstances, that Andrews would
suddenly become serious during a friendly conversation
prompted by the picketing occurring across the street,
and would solemnly inform Joseph that he was to vote as
he was told to, particularly as both of them knew that the
election was to be secret . Based on the probabilities of the
situation, I find that Andrews did not tell Joseph that he
must vote as he was told to.
C. During the Strike
The complaint alleged in paragraph 11(d), that the
Company violated Section 8(a)(1) by threatening its strik-
ing employees that they would be permanently ter-
minated unless they ended their strike, and, in paragraph
12(a), that it violated Section 8(a)(3) by discharging em-
ployees Fred George , James Young , John Joseph,
Ronald Odierna, and Manuel Otera because they per-
sisted in striking . It is also alleged in paragraph 10 that the
strike was prolonged by the threats and discharges
described above.
The oral testimony and stipulations on these matters
relate to a series of letters which the Company sent the
five individuals named above between October 10, a few
' Joseph admitted that there had been talking among the salesmen about
the Umon while they were at work during this period.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days after the strike began, and December 16, after the
strike ended.2
Although paragraph 11(d) of the complaint alleges that
the Company advised its striking employees, without
further enumerating them, that they would be per-
manently terminated unless they ceased striking, there
was no evidence, offer of proof, or stipulation introduced
with regard to any employees other than the five named
above. They constituted the group which continued to
strike until their request of November 22 for uncondi-
tional reinstatement was granted. I shall therefore treat
the allegations of this paragraph as being limited to Odier-
na, Young, Joseph, Otera, and George.
On October 10, Hanley Dawson, Jr., sent the following
letter to each of them:
You have not reported for work as per your floor
schedule Saturday, October 8, 1966. You have also
missed your floor schedule October 10, 1966. In the
event that you do not report for work Wednesday,
October 12, 1966, we shall assume you have ter-
minated your employment with this company.
On October 12, he sent them another letter, the rele-
vant portion of which reads as follows:
In view of your failure to report for work in ac-
cordance with our notice of October 10, we now
consider you to no longer be an employee of this
company. Accordingly, we are returning $24 as the
prorated portion of your monthly car rental.
On October 26, each of the five was sent a letter advis-
ing him that "since you chose to terminate your employ-
ment with our company, your Blue Cross Insurance
coverage is cancelled as of October 31, 1966."
On December 16, after their reinstatement, the Com-
pany advised them by letter, in response to their inquiries,
that it considered them ineligible for a company bonus
payment since they had "voluntarily elected not to per-
form any work or services for the Company for the period
from October 7, 1966 until December 5, 1966 ...... The
question of whether the strikers were entitled to this
bonus payment will be considered later on in this Deci-
sion , and I mention it now only to complete the recital of
how the Company regarded their concerted refusal to
work.
The strike which began October 7, was caused by
Stern's discharge the day before. The General Counsel
does not contend that Stern's discharge was discriminato-
ry, and it is therefore obvious, as the General Counsel
concedes, that the strike was "economic" in its inception.
It is settled law that an employer may replace economic
strikers, but, until they are replaced, they are entitled to
reinstatement upon their unconditional application. Un-
fair labor practice strikers, on the other hand, are entitled
to reinstatement on application, even if they have been
replaced. It is also settled law that neither economic nor
unfair labor practice strikers may be discharged. The
critical issue in such cases is whether the employer's ac-
tions with regard to the strikers in fact constitutes a
discharge.
To the strikers involved here, the question of whether
they were, or were not, discharged is academic. Since
they had not been replaced by newly hired employees,
and were reinstated to their former positions when they
ceased their strike, they are not entitled to reimbursement
for any wage losses incurred during the strike even if they
had been discharged, and the strike was thereby con-
verted into an unfair labor practice strike.3 If the Com-
pany had in fact discharged or threatened to discharge
them during their strike, all that would be indicated here
as a remedy is an order against the Respondent to cease
and desist from similar action. Nevertheless, since it ef-
fectuates the public policy of the Act to require a
respondent who has acted illegally to cease and desist
therefrom, I am obliged to decide whether the Company
threatened to, or did discharge George, Joseph, Young,
Odierna, and Otera.
When an employer imposes a deadline on the return of
economic strikers, with an implicit or explicit warning
that they will be replaced if they do not return, the Board
has emphasized the substance of what the employer has
done over the form of words he has used. Redwing Car-
riers Inc., 137 NLRB 1545, 1547, and Missoula Motel
Association, 148 NLRB 1477, 1478-79. These cases
point out that an employer has a right to continue his busi-
ness operations by hiring replacements for economic
strikers. Here, likewise, the Company sought to continue
to operate its business with the nonstriking salesmen,
without hiring replacements for the strikers. I do not see
why, in this case either, form should be magnified over
substance.
It is true that the Company required the strikers to
return the leased cars which they were using both as
demonstrators and for personal use, but this is the
equivalent of asking employees to return company tools
and equipment when they go out on strike. It is not incon-
sistent with the retention of employee status. The Com-
pany also advised the strikers that their Blue Cross in-
surance coverage would be canceled as of October 31,
and that they should make their own arrangements for in-
surance protection after that date. This is also not incon-
sistent with the strikers' retention of employee status. If
the Blue Cross coverage was based only on employee
contributions, then the Company was telling them to pay
their premiums directly, since they had no wages from
which they could be deducted. If an employer contribu-
tion was involved, then the Company was telling them, in
effect, that it was discontinuing that part of their total
compensation, since they were performing no services for
which compensation was payable.
The letters of October 10, 12, and 26 constituted, in
my opinion, threats of discharge since they assumed there
had been a break in the employment relationship, initiated
by the strikers, which the Company might rely on in the
future to their possible detriment. The Company did not,
however, rely on such an assumption (which was, in any
event, erroneous under the Act) to effectuate any real
change in the employment status of the strikers. It rein-
stated them upon the termination of their strike to their
former positions; it did not, so far as the record shows,
ever remove their names from its roll of employees or
notify them that they would be considered for reemploy-
ment only as newly hired employees, and it took no other
public or private action indicating that it ever regarded
2 The parties agreed that the Company had sent letters identical with
those introduced as G.C. Exh. 7(a) through 7(f) to Odierna, Young,
Joseph, and Otera, and that G.C. Exh 8(a) through 8(p) includes therein
copies of the same documents which were mailed to Fred George. Addi-
tional letters which the Company sent to George after the strike ended are
also included in the G C. Exh. 8 series, and will be considered separately
in my discussion of events after December 5, 1966.
3 Artim Transportation System, Inc., 166 NLRB 795 and Sea-Way
Distributing, Inc., 143 NLRB 460.
HANLEY DAWSON CHEVROLET, INC.
them as terminated.4 Under these circumstances, I am
satisfied that the Company's letters did not serve to
discharge the strikers, but only to threaten them with
discharge. I find such a threat to be a violation of Section
8(a)(1).
D. After the Strike
1. On Monday, December 5, 1966, the last of the
strikers returned to work. Ellis, the general manager,
called the returning new-car salesmen, Joseph, Young,
and Odierna into his office, told them they were being
reinstated with full benefits, and that they would soon be
given demonstrators to replace the ones they had previ-
ously had. He then said they were to go back to work and
sell cars, and that he did not want any talk about anything
other than company business.5
Wyatt, the used-car manager, testified that he and Ellis
met with George and Otera, when they returned on
December 5. They were told that everything would be
the same as when they left and that they should come in
to work presentably dressed. There is no evidence that
either Wyatt or Ellis said anything to them at that time
about the Union or that they were not permitted to
discuss certain subjects on company time or company
property.
Later that week, the used-car salesmen on duty were
sitting in the used-car office engaged in general conversa-
tion. The owner of a nearby Rambler agency came in and
began discussing with them the outcome of some of the
recent elections in which the Union had participated.
Wyatt passed by and heard the conversation. He then
called to Wayne Snyder, his assistant, and the two went
into the garage. A moment later Wyatt called for George
to come into the garage. Wyatt accused George of taking
advantage of Snyder the day before in getting some extra
time for lunch, and then, according to George, told him he
did not want him discussing the Union there. George im-
mediately told Wyatt in a loud voice that if he wanted to
fire him for union activities he could go right ahead.
Wyatt then left and, a few moments later, Ellis telephoned
George to come to his office. George asked Otera to
come with him as a witness and the two of them went to
Ellis' office where Wyatt was already present. Ellis asked
Otera what he was doing there, and Otera said he had
come as George's witness to anything Ellis might say.
Ellis said that was fine and he was glad to have him there.
Ellis then said, according to George's testimony, that he
did not know if he had told them before, but he was telling
them now, that he didn't want them discussing union busi-
ness on company time. He then asked Otera and George
separately if they knew about this. They said they did.
Paragraph 11(c) of the complaint alleges, based on
these incidents, that Ellis and Wyatt promulgated and
orally published a no-solicitation rule which prohibited
union solicitation and organization at any time and
anywhere on Respondent 's premises . A rule forbidding
oral solicitation on behalf of a union on the employer's
premises ' is invalid and in violation of Section 8(a)(1) if it
applies to the employees' nonworking time, unless the
' Cf Cincinnati Cordage and Paper Company, 141 NLRB 72, 76, and
Liberty Electronics Corp , 138 NLRB 1074, 1079-84
5 This is based on Joseph's testimony. Ellis' testimony is substantially
the same, except that his recollection on the last point was that he asked
them to discuss company business on company property during company
time , and that what they did outside the dealership was their own concern.
947
employer can show special circumstances which make
the rule necessary to maintain production or discipline.6
The Board has recognized that department stores present
a special case and has permitted employers to promulgate
a rule prohibiting all union solicitation within the selling
area of the store during both working and nonworking
hours.7
The employees to whom the Company's no-solicitation
rule applied here were salesmen. Although automobile
salesmen are not as continuously engaged in face-to-face
contact with customers as are selling personnel in depart-
ment stores, the former are still expected to be prepared
to greet members of the public as they walk into the new-
car showroom or the used-car lot or office. Automobile
salesmen also serve when they only stand and wait. The
considerations which have prompted the Board to honor
a rule against solicitation in the selling areas of a depart-
ment store, both on working and nonworking time, seem
to me to apply to any type of retail sales establishment, in-
cluding automobile dealerships.
I therefore hold that, even if the remarks of Ellis and
Wyatt are construed to be a promulgation of a rule against
solicitation in work areas on nonworking time, it was not
an invalid rule. I question however, whether the rule was
meant to apply to nonworking time. According to
George, the General Counsel's witness, Ellis told him
and Otera that he did not want them discussing union
business on company time, and the incident which
precipitated his warning involved the used-car salesmen,
all of whom were Fitting in the office during working
hours discussing union matters.
2. Paragraph 12(c) of the complaint alleges that
General Manager Ellis suspended Fred George from
December 20 to 27, 1966, because of his membership in,
or adherence to, the Union. The Company admits that it
suspended George for that week, but contends that it was
because of his defiant attitude toward his superiors after
the termination of the strike and, particularly, because he
took a day off without permission.
George returned to work on Monday, December 5.
According to the posted schedule, he was supposed to be
off Tuesday, but he asked to be allowed to switch with
Otera and take Friday off instead, because he had a doc-
tor's appointment for Friday. Before the strike such
switches between salesmen had been permitted. This
time, however, Wyatt told him to work the days assigned
to him by the schedule. George abided by this decision
and took Tuesday off. Wednesday morning, Mrs. George
called Wyatt to report that her husband was ill. George
then came in about noon and worked the rest of the day
without incident. The next morning, Wyatt called him in
to ask about his absence the day before. George said he
had been ill, and Wyatt asked him to bring a doctor's cer-
tificate to that effect. This too was unusual, since before
the strike short absences for illness had been excused
without further ado.8
On Thursday, December 8, George left for his
scheduled 1-hour lunch period about noon, and did not
return until 3 p.m. Wyatt asked him where he had been,
8 Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F 2d
177, 180 (C A 5); Stoddard-Quirk Manufacturing Co, 138 NLRB 615,
and Lexington Metal Products Company, 166 NLRB 878.
'Montgomery Ward & Co., Inc., 145 NLRB 846, 848, and cases
referred to therein.
8 Some time later, George brought in the requested doctor's certificate
336-845 0 - 70 - 61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and George replied that he had been out to lunch with a
potential customer .9 Wyatt said nothing.
Friday, December 9, George asked Snyder, the
assistant used-car manager , for permission to take an
extra half hour for lunch. About 1:30 p.m. he called
Snyder to say that he would be in even later , and returned
about 2 p.m.10 The next day there occurred the incident
described previously , when the used-car salesmen were
discussing the union elections in the used -car office,
Wyatt accused George of taking advantage of Snyder the
day before , told him he did not want him discussing the
Union there , and George invited Wyatt to fire him for
union activities if he wanted to.
On Monday , December 12, George was about 45
minutes late for work . That day the Company sent him a
registered letter (G.C. Exh. 8h), setting out his derelic-
tions of the past week, and warning him that similar con-
duct in the future would result in disciplinary action.
A few days later, the five former strikers who had
returned December 5 met with Ellis to have some mat-
ters relating to their benefits straightened out. The
salesmen asked about their right to a company bonus
which was usually paid about Christmastime . Ellis said he
would look into it, and, the next day or so , the five
salesmen were sent letters advising them that they were
not entitled to the bonus." George received his letter by
registered mail on Sunday . The next morning, a day he
was scheduled to work, George telephoned Wyatt to tell
him he was taking the letter to the Union's attorney and
the Board 's Regional Office to find out what his rights
were. George testified that he asked Wyatt for permission
and that Wyatt said he guessed it was all right if George
said so. Wyatt's testimony on this point is that George
called him about 10 a.m . that Monday and told him that
he was going to see his attorney and the Labor Board, and
that he would be in later. Wyatt then said, "Are you
telling me what you are going to do ?" to which George re-
peated what he had just said. Wyatt denied that he had
told George he guessed it was all right not to work that
day if George said so. I credit Wyatt 's recollection of
their conversation , since it strikes me as impossible that
Wyatt would be so unsure of himself as to excuse
George 's absence in view of the rancorous dealings
between them the past 2 weeks.
George had a regularly scheduled day off sometime
later that week , but chose to follow up on the Company's
letter on a scheduled working day. He did not come in to
work until almost 5 p.m. Ellis saw him as he arrived, told
him that he had warned him previously about his conduct,
and was now suspending him for a week. Following the
suspension , George returned to work and continued his
employment with the Company until the end of February
1967, when he resigned to become secretary of the
Union.
In evaluating George's attitude to his job immediately
after the strike , I consider it of some significance that his
commissions amounted to $35 in December , while in
January and February he earned $580 and $1800 , respec-
tively. Even granting that George missed at least 2 weeks
in December , and that the holiday season may have cut
into sales, his performance gives rise to the fair inference
' The potential customer was also an old friend of George 's. No sale
resulted from the contact
10 This finding is based on George 's testimony Wyatt testified that
George called about 2 30 and did not return until after 3 p.m . It is on-
that he was not putting forth his best efforts that first
month after the end of the strike.
The General Counsel contends that the Respondent
adopted a "tightening -up" policy against the five strikers
under which minor incidents were blown up in order to
provide a pretext for warnings , and that all of this was un-
dertaken as retribution for the strike . It is probably true
that whatever personal friendship there had been between
management officials and the strikers before the strike did
not survive into the period thereafter . A spirit of restraint
and wariness prevailed on both sides. Yet it is significant
that only George , during the first difficult weeks of read-
justment , should run into all the problems recited above.
He took extended lunch hours, came in late, was ill one
morning under suspicious circumstances , sold few cars,
and, to cap it all, took a day off without permission on a
matter that could have been satisfactorily handled by a
telephone call to the Union 's attorney , or by a personal
visit on his scheduled day off later that week . I believe
that George 's troubles with the Company in December
were largely of his own making , and that the 1-week
suspension was brought about by his misconduct. I find
that the General Counsel has not sustained his burden of
proving that the suspension was based on a discriminato-
ry motivation arising from the fact that he had been one
of the last strikers to return , from his support of the
Union , or from the fact that he had gone to the Board's
Regional Office on a matter which was later alleged to be
a violation of Section 8(a)(3) of the Act.
3. Part of the compensation plan for the salesmen was
described at the hearing as a holdback of commissions.
The written plan, with which the salesmen were familiar,
contained the following provision:
Commencing December 1st. of each year, $2.50 will
be withheld from each salesman from each of his
retail sales only. Provided such salesman remains in
the company employ until the following November
30th., the total amount withheld will be matched by
the company . If a salesman , for any reason, should
leave the company employ from December 1st.
through November 30th ., the amount of his in-
dividual holdback only will be returned to him.
While the strike was in progress , Joseph , Young,
George, Odierna, and Otera were paid the holdbacks on
their own commissions , but, after the strike ended, the
Company took the position that they were not entitled to
the company matching bonus because they had voluntari-
ly elected not to work during the strike and were there-
fore ineligible under the terms of the plan.
The complaint alleges that the Company refused to pay
a matching bonus to the five salesmen named above
because of the strike and their participation in it.
On October 7, when the strike began, the Company
employed 21 salesmen . Six of them remained at work
during the entire period of the strike. Of the 15 who par-
ticipated to some extent in the strike , only the 5 men-
tioned above stayed out for the duration . The other 10
returned sometime before November 22, when the last 5
requested reinstatement. The thrust of the allegation of
the complaint on the matching bonus is that the 5 strikers
who did not seek to return until November 22, were
necessary to resolve this conflict , since whichever version is correct, it ap-
pears that George's extended lunch hour was in some part unexcused
11 A fuller account of the salesmen's rights under the bonus plan is
given in the next section of this Decision.
HANLEY DAWSON CHEVROLET, INC. 949
treated differently from all the other salesmen in that they
did not receive the matching bonus. Wyatt, the used-car
manager, testified that the used-car salesmen who never
participated in the strike or who returned before
November 22 did receive the company bonus equal to
the amount of the holdback from each salesman's com-
mission. There is no direct evidence as to the new-car
salesmen, but the conclusion is inescapable from the
evidence presented as to the last five strikers that they
were not paid the matching bonus because the Company
considered that the period during which they were on
strike constituted a break in their employment.
The Supreme Court recently held, in N.L.R.B. v.
Great Dane Trailers, Inc., 388 U.S. 26, that the denial of
vacation benefits to employees who had gone out on
strike was "discrimination in its simplest form," and was
capable of discouraging membership in a labor organiza-
tion, including therein discouraging participation in con-
certed activities such as a legitimate strike. The Court
also held that, if the employer's discriminatory conduct
was "inherently destructive" of important employee
rights, no proof of an antiunion motivation was needed,
and secondly, that, if the adverse effect of discriminatory
conduct was "comparatively slight," an antiunion motiva-
tion must be proved to sustain the charge, ifthe employer
came forward with evidence of legitimate and substantial
business justification for the conduct. "Thus, in either
situation, once it has been proved that the employer en-
gaged in discriminatory conduct which could have
adversely affected employee rights to some extent, the
burden is upon the employer to establish that he was
motivated by legitimate objectives since proof of motiva-
tion is most accessible to him." (At p. 34.)
Here, as in the Great Dane Trailers case, it is unneces-
sary to decide the degree to which the challenged conduct
(the denial of a matching bonus to the last five strikers),
might have affected employee rights, since the Company
did not come forward with evidence that it had a legiti-
mate motive for its discriminatory conduct. It has at-
tempted to make up the deficiency by arguing in its brief
that the purpose of the bonus was to encourage salesmen
to stay on' the job for a full year, and that it was entitled to
withhold the bonus from George, Joseph, et al., because
their, sales performance was poor inasmuch as they had
sold no cars during the 2 months' strike. But even if I ac-
cepted that argument at face value, I would not consider
it to be a':legitimate business justification since the other
10 strikers also showed poor sales performance for the
periods they were out, and had also broken continuity in
the performance of their services. The disparity of treat-
ment in itself reveals that the Company denied the
matching bonus to the last of the strikers for reasons
other than those which prompted it to reward the em-
ployees who first struck but who returned before the
strike was called off. In any event, those salesmen who
never joined the strike were favored over the last five
strikers, thereby establishing that the "12 month continu-
ous employment" provision of the plan was used to dis-
criminate against the latter. 12
The Company's compensation plan also provided that
salesmen were entitled to 1 week's vacation after 1 year's
employment. When George voluntarily quit at the end of
February 1967, he had been employed 1 full year, includ-
ing therein the 2-month period in which he had been on
strike. The Company refused to pay him his vacation al-
lowance. The amended complaint included this refusal
with respect to George and other salesmen similarly situ-
ated, as a violation of Section 8(a)(3). It follows from my
discussion as to the matching bonus that George and any
other salesmen who have by now completed 1 year's em-
ployment are entitled to their vacation payment, and that
the Company is in violation of Section 8(a)(3) in treating
the period during which they were on strike as a break in
their employment which disqualifies them for their vaca-
tion allowance.
4. Stern, a new-car salesman, was discharged on Oc-
tober 6 for nondiscriminatory reasons, one of them being
a dispute between him and management over a pending
deal with one of his customers, named Bonadeo. The
complaint alleges that Stern was deprived of a commis-
sion on this deal because he participated in the strike
which ensued over his discharge.
Bonadeo had come in some time before October 6 for
an appraisal of his car as a trade-in on a particular model
which he then wanted. While his car was being road-
tested it was rammed by another car, thereby reducing its
value as a trade-in considerably. The Company however
offered to accept his car at its undamaged value, but it
was unable to supply him immediately with the exact
model he then wanted. The situation on the day Stern was
discharged was that Bonadeo had not yet signed a
purchase order for a new car, primarily because the
model and accessories he wanted were not available.
After Stern was discharged, Bonadeo settled on another
model, signed a purchase orderfor it, and eventually took
delivery on it.
The Company has refused to pay Stern the commission
for the car which Bonadeo actually purchased, on the
ground that he had not earned it before his discharge. It
argues that no salesman is entitled to a commission until
a signed order from a customer has been accepted, and it
points to the fact that it has paid Stern the commissions
on at least 15 cars which were delivered to his customers
after he was discharged, where orders had been signed by
October 6.
Stern testified that before he left the Company's
premises after his discharge, he was permitted to
complete the deliveries on three cars which he had previ-
ously sold, and to write up two deals which he had pend-
ing. About that time, Bonadeo came into the showroom
and spoke with Ellis, the general manager. Ellis then
came into Stern's office, asked to see the figures on the
Bonadeo proposed deal, and then told Stern that he would
be paid the commission on the sale. Later, while Stern
was picketing, he saw Bonadeo take delivery on a car
from the Company. Stern then inquired about the com-
mission but got no satisfactory answer. In the meantime,
another salesman, Helm, was paid a commission on this
11 Quality Castings Company, 139 NLRB 928, enforcement denied
325 F.2d 36 (C.A. 6). The Board there said , at p. 930 , "We recognize, of
course , that an individual 's right to profit sharing is justifiably related to
his contribution to work output , and toward this end the Respondent can-
not be required to make distributions to individuals for the period they
were absent on strike . Neither, however, can the Respondent state that
strike time is merely another form of absence, equating it to other forms of
absence discouraged by it, and then proceed to impose a total and nonpro-
portionate forfeiture on employees because they engaged in such absences
- in effect because they engaged in Section 7 activities." See also,
Pittsburgh-Des Moines Steel Company , 124 NLRB 855, enforcement de-
med 284 F .2d 74 (C.A. 9).
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sale because he had assisted in the delivery of the car to
Bonadeo.
Ellis testified that he had told Stern, after looking at his
proposed deal with Bonadeo on October 6 which in-
volved a station wagon with air conditioning, that he
would pay him the commission if Bonadeo accepted that
deal-13 In an affidavit which Ellis gave to a Board agent
before the hearing, introduced in evidence as General
Counsel's Exhibit 11, Ellis explained further why he had
not paid Stern a commission on the sale. It reads as fol-
lows: (pp. 8-9) "I did not pay Stern for the deal because
I finally sold a different car, for a different price, and I
made delivery myself. (I spent 2 hours of my time closing
the deal). So despite the fact I had told Stern I would pay
him for the deal, I did not because it was a different deal
involving all the work for me. (Stern did not have a buyers
order). In my mind, I did not think it would be fair to
myself or to Hanley Dawson Chevrolet to consume in the
sale and delivery 3 hours of my time (as general manager)
and pay a commission to Stern who was walking out front
sending customers elsewhere to buy a Chevrolet."
In a second affidavit given to the Board (G.C. Exh. 12)
2 weeks later, Ellis said, on pages 22 and 23, that
Bonadeo had come in to see him the day Stern was
discharged. Ellis said Bonadeo spoke to him about his car
(which was then being repaired) and whether he could
make a different deal - one for a four-door car with
specified equipment. Ellis told him he would check with
other dealers as to its availability.
It thus appears, from Ellis' second affidavit, that he al-
ready knew on October 6 that Bonadeo was considering
buying a different type of car than the station wagon on
which Stern was basing his proposed deal. If Stern had
not been discharged that day, he would have learned of
Bonadeo's interest in another model , and might have been
able to obtain a signed order that day or very soon
thereafter. In that way his right to a commission would
have been established. Thus, the argument advanced by
the Company for not paying him a commission - that he
did not have an order in hand - cannot be the whole
answer. Ellis already knew, the day Stern was discharged,
that Bonadeo might buy a car of a different type than the
one he had previously shown an interest in, and that it
was the availability of one or the other which might be the
decisive factor.
The second reason advanced by Ellis for refusing to
pay Stern the commission is also suspect . Ellis claimed
that he had put in 2 or 3 hours completing delivery on
Bonadeo 's car, and should not have to pay Stern for work
he himself had one. Yet the Company paid Helm a com-
mission on the Bonadeo order, presumably only for his
work in completing the delivery, since Helm had done
nothing to obtain the order. Furthermore, the work in-
volved in completing delivery of a car was routine, not in-
volving the skill and effort which a salesman had to show
to complete a sale . Thus, Ellis never claimed that the
work of other salesmen or management people in deliver-
ing the 15 or more cars which Stern had sold before his
discharge should deprive him of the full commissions on
those cars.
I am thus left with Ellis' third reason for denying Stern
a commission , namely, that it wasn 't fair to the Company
13 The car which Bonadeo eventually bought from the Company was a
hardtop convertible.
to have to pay him while he was picketing the dealership,
trying to induce potential customers to go elsewhere. I am
satisfied that Ellis recognized that Stern was entitled, in
all fairness, to whatever commission might be due when-
ever Bonadeo might buy a car, for the sales effort Stern
had already put in on the deal, and that he denied it to him
only because of his resentment over Stern's picketing.
This constitutes discrimination for engaging in a con-
certed protected activity, and tends to discourage mem-
bership in a labor organization. I conclude that the Com-
pany violated Section 8(a)(3) and (1) by refusing to pay
Stern a commission on the sale of the car which Bonadeo
bought. 14
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above , have a close , intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(1)
and (3 ) of the Act, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Specifi-
cally, I shall recommend that the Respondent make
whole the following employees for the losses in earnings
which they incurred because of its discrimination against
them:
(a) Payment of the matching bonus to Fred George,
John Joseph, Ronald Odierna, Manuel Otera, and James
Young;
(b) Payment of a vacation allowance to Fred George
and to all other salesmen who remained on strike until
November 22, 1966, and who, since the close of the hear-
ing in this case, have completed I full year of employ-
ment, counting therein the period they were on strike.
(c) Payment of the commission on the Bonadeo sale to
Maurice Stern.
The formula for computation of backpay which is
prescribed in F. W. Woolworth Company, 90 NLRB 289,
is inapposite here. The amounts found to be due under
this Decision were all earned while the discriminatees
were employed by the Respondent, and any earnings
thereafter may not be used as a setoff against them. In-
terest on the amounts due shall be figured in accordance
with Isis Plumbing & Heating Co.,138 NLRB 716.
I shall , also recommend that Respondent cease and de-
sist from threatening to discharge employees who have
gone out on strike , or from interfering with, restraining, or
coercing employees in any like or related manner. I do
not believe that the violations committed by the Respon-
dent here require any broader or more general remedial
sanction.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
14 The amount of the commission which Stern would have been entitled
to is in dispute , but this is a matter which can be settled at the compliance
stage of the proceeding
HANLEY-DAWSON CHEVROLET, INC. 951
CONCLUSIONS OF LAW
1. By interfering with, restraining , and coercing its em-
ployees in the rights guaranteed in Section 7 of the Act,
through its threats to discharge striking employees, the
has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
2. By withholding its matching bonus, vacation al-
lowances, and commissions on sales from employees who
remained on strike, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
3. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclu-
sions of law, and the entire record in the case, and pur-
suant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby recommend that Hanley
Dawson Chevrolet, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge for engag-
ing in a lawful strike or other protected concerted activi-
ty.
(b) Withholding bonuses, vacation allowances, com-
missions, or other compensation earned, or in any other
manner discriminating against its employees in regard to
hire, tenure of employment, or any term or condition of
employment, to discourage membership in any labor or-
ganization.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Pay forthwith the bonuses, vacation allowances,
and commissions due Fred George, John Joseph, James
Young, Ronald Odierna, Manuel Otera, and Maurice
Stem which were withheld from them because they par-
ticipated in a lawful strike or because they adhered to, or
supported, Automotive Salesmen's Association (A.S.A.),
Independent.
(b) Post at its place of business in Detroit, Michigan,
copies of the attached notice marked "Appendix."15
Copies of said notice, to be furnished by the Regional
Director for Region 7, after being duly signed by its
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Preserve and, upon request, make available to the
Board and its agents, for inspection and reproduction, all
books and records necessary or helpful in determining the
amounts of compensation which have been improperly
withheld from the individuals named above.
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.'6
IT IS FURTHER RECOMMENDED that those allegations of
the complaint which I found have not been established by
a preponderance of the proof be dismissed.
15 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."
16 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"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT threaten our employees with
discharge for engaging in a lawful strike or other pro-
tected concerted activity.
WE WILL NOT withhold bonuses, vacation al-
lowances, commissions, or other compensation
earned by .our employees to discourage membership
in any labor organization.
WE WILL pay forthwith the bonuses, vacation al-
lowances, and commissions due Fred George, John
Joseph, James Young, Ronald Odierna, Manuel
Otera, and Maurice Stem which were withheld from
them because they participated in a lawful strike or
because they adhered to, or supported, Automotive
Salesmen's Association (A.S.A.), Independent.
HANLEY DAWSON
CHEVROLET, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.