Hatch Chevrolet

National Labor Relations Board - Board Decisions

Mar 15, 1962

136 N.L.R.B. 284 (N.L.R.B. 1962)

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assistance and support to the PCCU in violation of Section 8(a)(1) and ( 2) of the
Act.
In the context of the substantial and unlawful financial assistance given by Re-
spondent to the PCCU, and its readiness to continue that form of support , as found
above, I must conclude and find that its contemporaneous contributions of material
support in the form of permission to use plant property , equipment , and company
time for various union activities , was part of its pattern of continued and substantial
support of the PCCU which was well calculated to coerce and restrain employees in
the exercise of their right freely to choose or change their bargaining representative.
Hence, I find that the material support aforesaid given by Respondent also violated
Section 8(a)(2) and (1) of theAct. 19
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 operations described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic , and commerce among the several States,
and such of them as have been found to constitute unfair labor practices 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 unfair labor practices in violation of
Section 8(a)(1) and ( 2) of the Act, I will recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
On the above findings of fact , and on the entire record herein , I make the
following:
CONCLUSIONS OF LAW
1. By offering and contributing financial and other assistance and support to
Appleton Post -Crescent Craftsman 's Union to the extent found above, thereby inter-
fering with, restraining , and coercing employees in the exercise of their rights guar-
anteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of Sections 8(a)(2) and (1)
and 2(6) and (7) of the Act.
2. Respondent has not violated the Act as alleged in the complaint by its main-
tenance and enforcement of its agreement dated October 1, 1959 , with the Appleton
Post-Crescent Craftsman's Union.
[Recommendations omitted from publication.]
19 Respondent also relies on facts showing that in May 1961, the PCCU members, at a
private meeting after workhours in which there was a full discussion , voted not to dissolve
the PCCU, and shortly thereafter about 16 members who had previously signed ITU appli-
cations caused a formal petition of withdrawal of those applications , signed by all of them,
to be given to the ITU . Although the employees ' action at the meeting appears on its face
to have been free of management inspiration or control , the fact that the withdrawal peti-
tion was prepared , printed, circulated , and signed on company time with use of company
facilities , under circumstances indicating company acquiescence therein, in the light of
the substantial assistance to the PCCU otherwise found herein , raises grave doubt whether
these actions of the employees repudiating ITU and restating their adherence to PCCU
were wholly free of Respondent 's influence In any event, such employee action, coming
after the unlawful conduct of Respondent , affords no defense thereto. Holland Mann-
facturtng Company, 129 NLRB 776, 785.
Hatch Chevrolet and Local 481, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers Union of
America. Case No. 921-CA-4443. March 15,196°2
DECISION AND ORDER
On October 17, 1961, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding that
136 NLRB No. 26.
HATCH CHEVROLET 285
the Respondent had engaged 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 Intermediate
Report attached hereto. The Trial Examiner also found that the Re-
spondent had not engaged in certain other unfair labor practices as
alleged in the complaint . Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning , and Brown].
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 Inter-
mediate Report, the exceptions and brief , and the entire record in the
case, and hereby adopts the findings ,' conclusions , and recommenda-
tions of the Trial Examiner , with the following modifications as to
the remedy.
The Remedy
Having found that the Respondent discriminatorily discharged its
salesmen, the Trial Examiner recommended that the Respondent offer
Calvin Tintinger, James Lee, Byard Conrad, William Dedman, Fred-
erick Allee, and Oren Martin immediate and full reinstatement to
their former or substantially equivalent positions and make each of
them whole for any loss of earnings sustained from June 3, 1961, to
the date of Respondent's offer of reinstatement. We agree that the
Respondent did discriminatorily discharge the above salesmen, and
we adopt the Trial Examiner's recommended remedy with respect to
Calvin Tintinger, James Lee, William Dedman, Frederick Allee, and
Oren Martin? However, as the record shows that Byard Conrad
was reinstated to his former position on June 7, 1961, we shall order
I The Trial Examiner found that the discharge of Robert Launer did not violate Section
8(a) (3) as alleged In the complaint . He also found that the questioning of Launer by
Sales Manager Wear and President Hatch in March , and Hatch's questioning of Tintinger
in April did not violate Section 8 (a) (1) of the Act As no exceptions have been filed with
respect to these findings , we shall adopt them pro forma
Additionally, the Trial Examiner found that the Respondent violated Section 8(a) (1)
of the Act by unlawfully interrogating its salesmen about their union interests and member-
ship on June 3 and 5, 1961. As the record establishes that such interrogation occurred
only on June 5, and not on June 3 , we do not adopt his finding regarding the June 3 date.
3 Member Rodgers agrees that the Respondent discriminatorily discharged all of its sales-
men. However , with respect to Dedman , Alice, and Martin, on the basis of the record
evidence , Member Rodgers would not require the Respondent to offer them reinstatement.
Thus the record shows that on June 5, 1961, the first workday after the discharges, Dedman,
Allee, and Martin were notified by Respondent 's president , Hatch, that they could return
to work if Sales Manager wear approved their reinstatement and if they agreed to wear's
terms. Thereupon , Dedman told Hatch that he "wouldn't come back to work for Hatch
as long,at Mr Lander (the used car sales manager) was working,for them " Dedman also
told Hatch that he was dissatisfied with the Respondent ' s management, that he could prob-
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only that Respondent make him whole in the manner set forth in
"The Remedy" section of the Intermediate Report for that period
from the date of his unlawful discharge to the time of his reinstate-
ment by the Respondent.
In his recommended remedy, the Trial Examiner also directed that
the Respondent "tailor the size of its sales force to a number reason-
ably required to handle normally anticipated trade," and to dismiss
replacements, if necessary, so as to provide the discriminatees the same
opportunity and earnings as existed before their discharges. We find
it unnecessary to adopt this recommendation of the Trial Examiner.
In the circumstances of this case the purposes of the Act can be prop-
erly effectuated by the application of our customary remedial rein-
statement and backpay order.
Apart from these exceptions, we shall otherwise adopt the remedy
set forth in the Intermediate Report.
ORDER
On the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Hatch Chevrolet,
El Cajon, California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in, and activity in behalf of, Local
481, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers Union of America, and in any other labor organiza-
tion, by means of discharge or other discrimination in regard to hire
or tenure of employment, or any term or condition of employment.
(b) Discharging, interrogating, or in any other manner interfering
with, restraining, or coercing its employees in the exercise of their
ably do better elsewhere , and that he would not work for wear in view of the way he had
been discharged . Allee, like Dedman, also rejected Hatch's proposal concerning reinstate-
ment, stating that he, like Dedman, didn ' t care to work for Mr. Lunder any longer. With
respect to Martin, the record shows that he informed Hatch that he wouldn 't be coming
back to work for the Respondent because he was leaving the city
In view of the foregoing , Member Rodgers would find, that while Respondent ' s offer of
reemployment was a conditional offer at best , Dedman, Allee , and Martin did not assert
the fact that the offer was conditional as their reason for rejecting future employment with
the Respondent . Instead, their testimony reveals that their rejection of the Respondent's
offer occurred In a context unrelated to and independent of the conditional nature of the
offer, and that they would not have accepted the Respondent ' s offer of reinstatement even
If it had been unconditional L Bonney d Sons Furniture Manufacturing Co, a co-
partnership consisting of Lewis Bonney , Lillian Bonney , Sam Bonney and Milton Bonney,
97 NLRB 891 , enfd in pertinent part 200 F . 2d 730 ( C.A. 9), cert denied 346 U S 937,
rehearing denied 347 U.S 941. Moreover , as Dedman , Allee, and Martin rejected future
employment with the Respondent the first working day after the discharges , Member Rodgers
would not order the Respondent to otherwise make them whole for the period of their
discrimination.
HATCH CHEVROLET 287
right to self-organization, to form, join, or assist the above-named
labor organization, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from engaging in any
or all such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Managenment Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Calvin Tintinger, James Lee, William Dedman, Fred-
erick Allee, and Oren Martin immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, in the manner set
forth in the section of the Intermediate Report entitled "The Remedy,"
as modified herein, and make whole Calvin Tintinger, James Lee,
William Dedman, Frederick Allee, Oren Martin, and Byard Conrad
for any loss of pay they may have suffered by reason of the Respond-
ent's discrimination against them, as found herein, in the manner
provided in said sections.
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Decision and Order.
(c) Post at its plant in El Cajon, California, copies of the notice
attached hereto marked "Appendix." I Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive day's thereafter, in conspicuous places,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint insofar as it alleges that
the Respondent has violated the Act by conduct other than that found
to be violative herein, be , and it hereby is, dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in, and activity in behalf
of, Local 481, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers Union of America, or in any
other labor organization, by means of discharge or other discrimi-
nation in regard to hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT discharge, interrogate, or in any other manner
interfere with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form, join, or assist the
above-named labor organization, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, or
to refrain from engaging in any or all such activities, except to
the extent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer Calvin Tintinger, James Lee, William Dedman,
Frederick Allee, and Oren Martin immediate and full reinstate-
ment to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges,
and will make whole Calvin Tintinger, James Lee, William Ded-
man, Frederick Allee, Oren Martin, and Byard Conrad for any
loss of pay each may have suffered by reason of our discrimination
against them.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of Local 481, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers Union of
America, or any other labor organization, except to the extent that
HATCH CHEVROLET 289
such rights may be affected by a lawful agreement requiring member-
ship in a labor organization as a condition of employment.
HATCH CHEVROLET,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (Eastern Columbia Building, 849 South Broadway, Los Angeles
14, California; Telephone Number, Richmond 9-4711, extension 1031)
if they have any questions concerning this notice or compliance with
its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was tried before Wallace E. Royster , the duly designated Trial Ex-
aminer, in San Diego , California , on August 29, 30, and 31 , 1961. At issue is
whether Hatch Chevrolet , herein called the Respondent , committed unfair labor
practices within the meaning of Section 8(a) (1) and (3) and Section 2(6) and (7)
of the National Labor Relations Act, as amended , herein called the Act , by inter-
rogating employees concerning their activities in relation to Local 481 , International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers Union of
America, herein called the Union , by saying that it would not confer with a union
representative , and by discriminatorily discharging seven of its employees. Re-
spondent's answer denies any violation of the Act.
Upon the entire record in the case , upon consideration of the briefs submitted
by counsel , and from my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent operates a Chevrolet dealership in the vicinity of San Diego,
California . During the 12-month period preceding the hearing , its sales exceeded
$500,000 in volume. In this period the Respondent received from St . Louis, Missouri,
automobiles valued at $40,000 for sale at its place of business . I find that the
operations of the Respondent are in and affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the Act
and admits to membership employees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
On January 10, 1961 , at an annual meeting for salesmen conducted by the Re-
spondent, Roy Wear, Respondent 's sales manager, reviewed the sales accomplish-
ments of 1960 , expressed the hope that 1961 would be a more favorable year for
sales and earnings , and told the salesmen of his insistence upon the observation of
certain rules of conduct which Wear felt would contribute to a more efficient and
profitable operation . Among the Rules mentioned were those against reading and
eating on the sales floor; "covering" the new-car and used -car lots; and the mani-
festation of a greater spirit of cooperation in calling for assistance of other salesmen
to help with a prospective buyer . Clarke Hatch , Respondent's president , reminded
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the salesmen of his opposition to having a labor organization represent them. He
told the men that he felt that a union would be detrimental both to the business
which he headed and to them as individuals . Hatch said that he did not care to do
business with a union representative.'
Wear testified that in the following months many of the salesmen reverted to their
old habits of reading on the sales floor and failing to cover the sales lots as he desired
them to do. According to Wear, these deficiencies and others of like character were
brought to salesmen 's attention on numerous occasions at the daily sales meetings.
Sometime in March the Union began an organizing campaign among the Re-
spondent 's salesmen and mechanics . In March , Wear asked Robert Lauver, one of
Respondent's salesmen , if he had attended a union meeting . Launer answered that
he had . Hatch, who was present , asked, "How was it?" Launer said that there was
some discussion of the need for a union in the San Diego area. Hatch said that a
union would take away "one of our freedoms ." The complaint alleges this incident
to be one of unlawful interrogation . Because as I view it neither the question by
Wear nor the comment by Hatch was made in a coercive context , I find no violation
of the Act in this connection . The incident does, however, evidence an awareness of
the part of the Respondent that a union meeting had taken place and that Lauver
had attended it.
Calvin Tintinger , also a salesman , testified that in April Hatch asked if Tintinger
knew of anyone who had been invited to a union meeting for mechanics . Tintinger
answered that he did not . Upon the same consideration set forth above, I find no
violation of the Act in respect to this question by Hatch.
In late May, an acquaintance of Arlo Lunder , Respondent's used-car manager,
telephoned Lunder and said that he had heard that all of Respondent 's salesmen had
joined the Union . Lunder received this information in the presence of Wear and
told the latter about it . According to Lunder , neither he nor Wear took the report
seriously. Lunder denied that he made any mention of the matter to Hatch. Hatch,
however, conceded that at some unspecified time Lunder had told him that the
salesmen were interested in a union.
In late May, according to Wear, he became increasingly concerned about what he
considered to be a failure of his sales force to sell the number of cars that market
opportunity seemed to afford and the development of an apparent lack of interest in
performing the sales job . Discussing the matter with Hatch , Wear testified he sug-
gested that a possible cure for the situation might be to discharge all the salesmen
and to rehire those who would in some fashion satisfy him that they would perform
more satisfactorily in the future. No decision was then reached in the matter. For
some period of time , according to Wear, salesman Robert Launer presented a prob-
lem. Lauver, according to Wear , was a salesman of considerable ability who seemed
unwilling to make effective efforts to improve his sales. Lauver was hired by the
Respondent in May 1956 , and had in the past demonstrated good sales ability. In
1960 and 1961 , according to Wear, Lauver was either the least productive of the
salesmen or just above that position . In April , Wear spoke critically to Launer
about his failure to sell more cars.
All salesmen received a drawing account of $65 a week, and early each month
were paid the amount of commissions they had earned during the preceding month
less the amount already paid to them . On June 2, a Friday , Launer had no earnings
for the month of May in excess of his draw. Late that afternoon he asked Wear
to permit him to draw $65 which would have been an advance for commissions not
yet earned . Wear answered that Launer 's sales performance had been so poor that
he had decided to discharge him and did so. Wear suggested that Launer apparently
had no incentive to work hard at his job . Lauver replied that maybe he had "soured"
on the automobile business.
In the morning of June 2, at the daily sales meeting, Wear commented that deliv-
eries of new cars in May had exceeded those of any month since the preceding
August and expressed the hope that this was a good augury . Hatch spoke to the
salesmen displaying a postcard addressed to one of the mechanics at the dealership,
inviting the mechanic to attend a union meeting held in the evening of June 1. Hatch
remarked, jokingly I suppose, that unfortunately the invitation had come to his
hand too late for acceptance . Hatch then went on to remind the salesmen of his
opposition to a union and told them he had a few years earlier in the San Francisco
Bay area observed the detrimental effect that a union of salesmen had had upon
'There is testimony that on this occasion Hatch said flatly that he would not discuss
his business with a shop steward Considering the varying recollections of the witnesses
on this point and the possibility of misunderstanding , I find that Hatch expressed only a
desire to be free from compulsion to deal with a union
HATCH CHEVROLET 291
the dealers and the salesmen. Hatch said that he was not interested in talking to a
union representative.
Although the salesmen usually worked until 6 p.m. on Saturday, all were told
about 4:30 p.m. on June 3 to meet with Wear on the sales floor. When they were
gathered at this point, Wear said that they were all discharged but that they might
return on Monday, if they desired, for consideration of possible reemployment.
Salesmen Oren Martin, Frederick Allee, William Dedman, James Lee, and Calvin
Tintinger testified that Wear preceded the words of discharge by saying that the
sales force had "banded against" management .2 Another salesman, Byard Conrad,
who has since been reemployed, denied that such words were spoken. Wear and
Lunder testified that on this occasion Wear told the men they were discharged
because they had lost their "sparkle," drive, enthusiasm, and interest; that he liked
and respected them as individuals, but as a team they had let him down. Both
denied there was any mention of the men "banding" against management.
About 5:30 that evening, in the presence of Oren Martin, William Dedman tele-
phoned Hatch and asked Hatch if he was aware that his entire sales force had been
discharged. Hatch said that he was and that he had authorized the discharges.
Dedman asked why he was fired and Hatch answered that the men seemed to have
been "indoctrinated" by someone. Dedman asked if it was because the salesmen
had gone to a union meeting. Without answering this question, Hatch began a dis-
cussion of unions and their detrimental effect upon automobile dealers. According
to Dedman he received no definite answer to his question whether the Union in any
way was responsible for his discharge . During the conversation Hatch said that the
men were fired because they talked to each other during business hours, read news-
papers on the selling floor, ate lunch on the floor, did not wait on customers promptly,
and were not covering the sales lots as they should. Hatch agreed to meet with
Dedman on Monday.
On Monday morning, Dedman, accompanied by salesmen Martin and Conrad,
met with Hatch . Dedman , he testified, again asked why he was fired. Hatch
answered that he was unproductive. Dedman disputed this, saying that his sales
were good and that he thought that some of the other men had good sales records.
Hatch then amended his reason by saying that the men were productive individually
but not collectively. Hatch said that he was shocked on the previous Saturday to
hear Dedman say he was a union member. Martin protested that Dedman had
made no such admission . Hatch then asked Martin if he was in the Union. Martin
did not answer the question but asked if that was why he was fired . Dedman said
that if sales were not satisfactory, the fault lay with management rather than with
the salesmen. The conversation ran on for several hours. According to Martin,
Hatch asked him several times during this meeting if he had joined the Union and
on each occasion Martin replied by asking if that was the reason for his discharge.
To Martin 's final question on this point, Hatch answered "I can't tell you." Hatch
told the men that if they wanted their jobs back they should speak to Wear about it
and that they probably could come back to work on Wear's terms.
That afternoon Dedman again met with Hatch, this time accompanied by salesmen
Allee and Tintinger. When the men asked Hatch why they were fired they received
no answer except that they were individually productive but collectively not so.
Again Hatch told them that they could talk to Wear and that some would be rein-
stated on Wear's terms. In the conversations with Hatch on June 5, Dedman said
that he did not care to come back to work for Wear; that he could not do a good
job after what had happened. Allee said that he didn't care to work so long as
Lunder was there. Martin, late that day, said that he would not be coming back to
work as he intended to leave the San Diego area.
Hatch testified that he authorized the discharges in reliance upon the judgment of
Wear that the shock of separation might revitalize the sales attitudes of the men.
Hatch told Wear, he testified, ,that all were good men, that Wear might well desire
to rehire all of them, and directed Wear to make sure the men understood that such
opportunity existed. In the telephone conversation with Dedman, Hatch testified
he told Dedman that the salesmen had been discharged because they had lost their
drive and sparkle, that they were not as productive as they should be. When Dedman
asked if the discharges were attributable in any fashion to an interest in the Union,
Hatch said that they were not. Hatch conceded that there was considerable discus-
sion in this telephone conversation concerning union-contract provisions and that
he said at some time that it seemed to him that the entire sales force had been
indoctrinated in some fashion so that management could not "get through" to them
2 The transcript of testimony has Martin using the word "bonded." Whether Martin's
recollection is that Wear said "bonded" or "banded," the meaning is not affected
641795-63-vol. 136-20
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any more. Hatch denied that he made any inquiry of Dedman concerning Dedman's
union membership . On Monday morning, June 5, according to Hatch , in talking
with Dedman, Martin , and Conrad , he asked none of them concerning membership
in the Union. Hatch also denied that in the afternoon of that day he asked Allee
if he was a union member.
On Wednesday , June 7, Conrad was rehired as assistant sales manager and re-
turned to work the following day. The other salesmen have not returned to Re-
spondent 's employ.
Whether the salesmen were discharged in an effort to enable the Respondent to
bring its sales force to a realization of their individual deficiencies and to inspire
them when rehired to reach a higher plateau of efficiency or, whether, as the com-
plaint alleges , they were discharged because of a well -founded belief on the part
of the Respondent that all of them had joined the Union, turns upon the credit of
those appearing as witnesses . In respect to the crucial issues, I find the testimony of
those called by the General Counsel in support of the complaint to be believable
and that of those called by the Respondent not to be. All of the salesmen except
Tintinger had been in the Respondent's employ for more than 4 years. Tintinger,
in June 1961, had the best sales record of all. A number of them had in years past
sold a sufficient number of cars to attain membership in the Legion of Leaders, an
honorary organization of Chevrolet salesmen whose performance was something
beyond the ordinary. In June, Tintinger, Dedman, and Conrad had sales which, if
continued for the balance of the year, would have qualified them for membership
in the Legion. Wear, in his testimony, discussed the shortcomings of each of the
salesmen but voiced no criticism of Tintinger, and said that Conrad failed only
in that he sometimes did not cover the sales lots as he should . It is evidence, and
in fact conceded by both Wear and Hatch, that, with the exception of Launer and
possibly of Lee, all of the salesmen were well regarded by their Employer. Hatch
testified that he told Wear on June 3 that Wear might want to rehire all of them.
As to Lee, Wear testified there was no question of his sales ability but that he had
on occasions throughout the 4 years of his employment manifested an addiction to
alcohol. About 3 weeks before his discharge, Lee failed to work for a part of a day
probably because of overindulgence the previous evening.
As outlined in Wear's testimony, salesmen are not readily replaced. Thus the
actual discharge of Launer was postponed so that a replacement for him might first
be obtained . No replacements had been arranged for the six discharged on June 3.
Respondent 's salesmen had , as I understand is to be expected , acquired clienteles
which would tend to follow the individual salesmen to other dealers and thus be
lost to the Respondent . These considerations were in Wear's mind when, at
2:30 p .m. on June 3 , he decided upon the discharge of the remaining salesmen. The
reasons moving him to action that afternoon as expressed in Wear 's testimony are
unconvincing . According to Wear, on this day the salesmen seemed more than
usually to congregate in groups to the neglect of customers . Furthermore , although
Saturday, as June 3 was, is a day when deliveries to purchasers most usually take
place, on this day only one delivery was made. But deliveries often do not follow
immediately upon sales and the fact that only one was made on June 3 does not
evidence that the salesmen were failing to give their best efforts at the time the deci-
sion to discharge was made. It would seem rather to indicate that sales for the
previous week or so had been low.3
In late May , Lunder was told that all of the salesmen had joined the Union.
He gave this information to Wear. Both testified that they paid little heed to the
report. I believe neither of them in this particular . Both were aware of the stout
opposition of Hatch to the imposition of a union upon his business . Lunder, him-
self, had expressed his opposition to such a development . I have no doubt that
both took the advice that had come to them seriously and that they relayed their in-
formation to Hatch . On Friday morning, June 2 , Wear commented in an optimistic
fashion about the amount of new cars sold in May. The next afternoon the sales-
men were discharged with the comment that they had "banded" against manage-
ment. I credit without qualification the testimony of Martin , Allee, Dedman, Lee,
and Tintinger that Wear made this accusation . I do not believe the denials of
Wear, Lunder, and Conrad that he did so. In what way had the salesmen "banded"
against the Respondent? I think it obvious, and I find, that Wear considered their
membership in the Union to constitute that sort of conduct . No other rational ex-
planation is to be found in the evidence . If doubt were to remain , and I have none,
s I have considered the evidence that the Respondent was not maintaining its competitive
position in sales and that its gross profit for the first 5 months of 1961 was less than in the
comparable 1960 period . There is no showing that unit sales in 1961 were below those
for 1960.
HATCH CHEVROLET 293
that this belief existed on the part of Wear and of Hatch, I think it to be dispelled
by the telephone conversation between Dedman and Hatch later that afternoon. I
credit the testimony of Dedman that Hatch said that the men had been "indoctri-
nated" and that Hatch was evasive in answering Dedman 's question as to why he had
been discharged. The fact that much of the conversation centered about unions is
evidence, I find, that this was a consideration much in the mind of Hatch. The talks
between Hatch, Dedman, Conrad, Allee, Tintinger, and Martin on June 5 buttress
this finding. I credit the testimony of the salesmen other than Conrad to the effect
that on June 5 Hatch questioned them concerning their membership in the Union.
I find that the discharges on June 3 were motivated by Respondent's fear that all
six salesmen were aligned with the Union. I find the reasons for discharge ad-
vanced by the Respondent, to the extent that they are voiced in this record, to be
pretexts.
Wear testified that he did not discharge Launer until he had arranged for a re-
placement. Although the matter is by no means free from doubt, I consider that the
evidence on balance does not, by its preponderance, establish a discriminatory
motivation attending this discharge. Launer was the least productive of the sales-
men and in the month of May had earned no more than the amount of his draw,
I find that the General Counsel has not proved a violation of the Act in connection
with the discharge of Lauver.
On Monday, June 5, Martin told Hatch that he would not be coming back to
work; that he was leaving the city. On the same day, Allee said that he did not
care to work while Lunder was still with the organization. Dedman expressed him-
self similarly . These expressions , it is argued, indicated that it would have been
futile to offer reinstatement to any of the three on that date. It is asserted they had
imposed conditions upon reemployment which the Respondent was under no obli-
gation to meet. The short answer to this contention is that none of the salesmen
was offered reinstatement. Having discriminatorily discharged Martin, Allee, Ded-
man, Lee, Conrad, and Tintinger, the Respondent was under a duty to offer them
reinstatement. It cannot avoid this duty by reliance upon remarks made in the
absence of such an offer.
I find that by questioning its salesmen about their interest or membership in the
Union on June 3 and 5, in a context of unlawful discharges, the Respondent inter-
fered with, restrained, and coerced them in the exercise of rights guaranteed in
Section 7 of the Act. The Respondent has thereby violated Section 8(a)(1) of the
Act.
By the discharge of Martin, Allee, Dedman, Lee, Conrad, and Tintinger on
June 3, the Respondent discriminated in regard to their hire and tenure of em-
ployment to discourage membership and activity in behalf of the Union. The
Respondent thereby has violated Section 8(a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with its operations described in section I, above , have a close, intimate,
and substantial relation 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 the Respondent has engaged in certain unfair labor practices
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act . Having found that the
Respondent discriminatorily discharged six of its salesmen , it will be recommended
that it offer to Calvin Tintinger, Frederick Allee, William Dedman, James Lee,
Oren Martin , and Byard Conrad immediate and full reinstatement, each to his
former or substantially equivalent position , and make each whole for any loss of
earnings sustained from June 3 , 1961, to the date of offer of reinstatement , by pay-
ment to each of a sum of money equal to that which he normally would have
earned in employment with the Respondent during that period less his net earnings
for the same period. F. W. Woolworth Company, 90 NLRB 289. As the salesmen
are compensated on a commission basis and in this situation to a degree are com-
petitors in their group , the Respondent shall tailor the size of its sales force to a
number reasonably required to handle normally anticipated trade and thus, if
necessary , shall discharge a sufficient number of those hired as replacements to bring
about this result.
As the violations of the Act which the Respondent has committed indicate a
studied purpose to disregard the rights of employees secured by the Act, it will be
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended that the Respondent cease and desist from infringing in any manner
upon such rights.
Upon the basis of the foregoing findings of fact , and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Local 481 , International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers Union of America , is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Frederick
Allee , William Dedman, James Lee, Oren Martin , Calvin Tintinger , and Byard
Conrad , thus discouraging membership and activity in behalf of the above-named
labor organization , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination and by questioning employees concerning their mem-
bership in a labor organization , the Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and
has thereby engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations Omitted from publication.]
Sperry Gyroscope Company, Division of Sperry Rand Corpora-
tion and Engineers ' Association , International Union of Elec-
trical , Radio and Machine Workers of America , Local 445,
AFL-CIO, Charging Party
Sperry Gyroscope Company, Division of Sperry Rand Corpora-
tion and Decertification Committee , Petitioner and Engineers'
Association, International Union of Electrical , Radio and
Machine Workers, AFL-CIO. Cases Nos. 2-CA-7613 and 2-RD-
495. March, 15, 1962
DECISION AND ORDER
On December 8, 1961, Trial Examiner Stanley Gilbert issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged 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 Intermediate Report at-
tached hereto. Thereafter, the General Counsel, the Charging Party,
the Employer, and the Petitioner filed exceptions to the Intermediate
Report and supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed? The
1 The Respondent filed a request for oral argument. Because in our opinion the record,
exceptions , and briefs adequately set forth the issues and positions of parties , the request
for oral argument is denied.
2 The Respondent contends the Trial Examiner erred in dismissing the Respondent's sev-
eral motions for bills of particulars . We find that the Respondent has not been prejudiced
by such denials . The violations found are in accord with the substance of the complaint
and have been fully litigated.
136 NLRB No. 45.