Hemphill Ford, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1961

133 N.L.R.B. 834 (N.L.R.B. 1961)

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her immediate and full reinstatement to her former or substantially equivalent posi-
tion , without prejudice to her seniority and other rights and privileges , and make her
whole for any loss of earnings she may have suffered by reason of the discrimination
against her , by payment to her of a sum of money equal to the amount of wages
she would have earned subsequent to the time of termination until the date of a
proper offer of reinstatement , less her net earnings from other employment in that
period. Loss of'pay shall be computed in accordance with the formula and method
prescribed in F. W. Woolworth Company, 90 NLRB 289.
On the basis of the above findings of fact, and upon the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent Arlan's is an employer within the meaning of Section 2(2) of
the Act.
2. Respondents Central State Joint Boards and Local No. 749, both affiliated
with the Amalgamated Clothing Workers of America, AFL-CIO, are labor or-
ganizations within the meaning of Section 2(5) of the Act.
3. By discharging Evelyn Helaers on August 29, 1959, Respondent Arlan's dis-
criminated in regard to hire and tenure of employment of employees , thereby dis-
couraging membership in labor organizations and engaged in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act.
4. Respondent Arlan's has not engaged in certain other unfair labor practices
as alleged in the complaint.
5. Respondents Central State Joint Board and Local No . 749 have not engaged
in unfair labor practices.
^6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Thad Felton ,. Inc., doing business as Hemphill Ford , Inc. and
Retail Automobile, Salesmen,' Local Union No. 501 , affiliated
with Retail Clerks International Association , AFL-CIO. Case
No. 23-CA-114. October 10, 1961
DECISION AND ORDER
On July 12, 1961, Trial Examiner Owsley Vose issued his Inter-
mediate Report herein, finding that the Respondent had engaged(jin
unfair labor practices in violation of Section 8 (a) (3) and (1) of the
Act and recommending that it cease and desist. therefrom and take
affirmative action;' as set' forth iii. the Intermediate Report attached
hereto. Thereafter, Respondent filed exceptions 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 Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and brief, and the
entire record in the case, and adopts the findings, conclusions, and
recommendations of the Trial Examiner.
The Respondent urges that the Trial Examiner , by taking testi-
mony as to the seniority status of Lauderdale and Smith and by
133 NLRB No. 62.
HEMPHILL FORD, INC. 835
considering their sales records for the 6 months prior to their dis-
charge, was substituting. his own judgment for that of management
with respect to the employees to be selected for termination. We do
not agree. An employer does not customarily admit that employees
have been selected for termination for reasons which are discrimina-
tory within the meaning of the Act. When the issue is, as it is here,
whether the asserted reasons for discharge were pretextuous and the
actual motive was discriminatory then all of the factors commonly
applied in the selection of employees for discharge for economic
reasons must be considered. This does not mean that a disregard fol•
seniority or work performance, or both, on the part of an employer
is a determinative factor in reaching decision; it means that either
or both may be relevant factors.- The weight to be given to either
depends upon the circumstances of the particular case. We do not
find that the Trial Examiner attached undue significance , to either
factor in the instant case. We do find, on the other hand, persuasive
reasons for supporting the conclusions of the Trial Examiner. Among
these is the credited testimony that Sales Manager Gibbons, on
December 27, called a meeting and threatened the salesmen with
discharge by the Company for engaging in union activity. That
same evening Lauderdale and Smith invited Gibbons to attend a
union meeting. Gibbons declined and the next day discharged both
men despite the fact that in discussing the imminent terminations
witli Lauderdale on December 27 he had not suggested or implied
that Lauderdale or Smith would be terminated. These facts present
a clear picture of a discriminatory threat followed by immediate
discriminatory action when the threat was ignored.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modification that provision 2(d) read: "Notify the Regional
Director for the Twenty-third Region, in writing, within' 10 days
from the date of the Order, what steps the Respondent has taken to
comply herewith." 1
1 In the notice attached to the Intermediate Report as the Appendix , the words "Decision
and Order" are hereby substituted for the words "The Recommendations of a Trial
Examiner ." In 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 "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , in which all parties were represented, was heard before the duly
designated Trial Examiner in Houston , Texas, on May 2 and 3, 1961, upon the com-
plaint of the General Counsel and answer of Thad Felton, Inc., doing business as
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hemphill Ford, Inc., herein referred to as the Respondent. The General Counsel
and the Respondent have filed helpful briefs which have been fully considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FINDINGS
The Respondent, a Texas corporation, owns and operates a Ford agency at
Houston, Texas, where it is engaged in the sale and servicing of new and used
automobiles and trucks. At the time of the events here involved, the Respondent
maintained two new car sales establishments, one on South Main Street and the
other on the Gulf Freeway. It also operated a used car lot on Harrisburg Street,
across the street from a new car sales room which it had formerly operated. In its
operations in Houston the Respondent obtains from out-of-State sources motor
vehicles, parts, and other materials valued in excess of $25,000 a year. Respondent
annually sells vehicles and performs related services, the gross value of which
exceeds $500,000. I find that the Respondent is engaged in commerce within the
meaning of the Act, and that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Automobile Salesmen , Local Union No. 501 , affiliated with Retail Clerks
International Association , AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The discharges; interference, restraint, and coercion
1. Issues involved
The complaint alleges that the Respondent's discharge, on December 28, 1960,
of Gilbert P. Lauderdale and William H. Smith, two of the salesmen at its Harris-
burg used car lot, was violative of Section 8(a)(3) of the Act, and that certain
other of the Respondent's conduct was violative of Section 8(a)(1) of the Act.
With respect to the principal issue involved in this case, the discharge of Lauderdale
and Smith, the Respondent contends that they were lawfully discharged because of
their low sales production in the month of December 1960.
2. The employment situation at the Respondent's locations;,
the earnings of its salesmen
The Respondent has considerable turnover of salesmen at its various new and
used car locations in Houston. The General Counsel introduced into evidence, as
General Counsel's Exhibit No. 2, a tabulation prepared by the Respondent showing
the amounts of sales commissions paid to all its salesmen in each semimonthly pay
period in the last half of 1960. This exhibit shows that the Respondent entered
this period with 29 new and used car salesmen on its payroll; that it hired 40 sales-
men during this period; and that the employment of 40 salesmen was terminated
during this period. This exhibit, as supplemented by testimony at the hearing, also
shows that the Respondent ended up 1960 with 25 salesmen on its payroll.,
The Respondent's salesmen are paid solely on a commission basis. Their earn-
ings vary substantially, not only from salesman to salesman, but also in the amount
of their earnings in each semimonthly pay period. Excluding the earnings of Hugh
A. Wood, the Respondent's fleet manager,2 the average earnings of all of the Re-
spondent's salesmen during the last 6 months of 1960 amounted to $200.27 per semi-
monthly pay period. The average semimonthly earnings of the 40 salesmen who
were hired during the last 6 months of 1960 were $171.80.3
1 These figures do not include Hugh A, Wood, the Respondent's fleet manager.
z The earnings of Wood, which were considerably in excess of the other salesmen, are
not taken into consideration in the discussion which follows because of the fact that Wood,
unlike the other salesmen, was especially assigned to handle the Respondent's fleet sales.
3 These figures, which are taken from General Counsel's Exhibit No 2, may slightly
understate the average earnings of the salesmen in that they are broken down by semi-
monthly pay periods only, and do not show the instances in which the employee worked
less than a full pay period Thus, there may be instances where the earnings shown for
a semimonthly pay period actually represent only a week's earnings, where the employee
HEMPHILL FORD, INC. 837
3. Sequence of events
a. The 'organization of the Union
In the latter part of November 1960, several salesmen employed in automobile
agencies in Houston , Texas, requested information of Donald J. Hofer, a special
representative of Retail Clerks International Association, concerning the formation
of a citywide union of automobile salesmen . After receiving these requests, Hofer
arranged for meetings of salesmen employed in the various agencies in Houston.
The first meeting was held on December 6. At the second meeting on December 7
temporary officers were elected . After the December 7 meeting, the temporary
officers publicized over the radio the organizing campaign which was then in
progress . At a meeting on December 9, a formal application for a local union
charter was completed and sent to the Retail Clerks International Association.
Meetings of salesmen from the various agencies were also held on December 12, 14,
16, 19, and 27, 1960, and January 4, 1961. At the December 19 meeting, the charter
for Local Union No. 501, which had just been received from the International, was
shown to the assembled salesmen.
b. General Manager Sanders' talk
The Respondent scheduled a meeting of all its salesmen for December 10, 1960, at
the meeting room of the Gulf Freeway location . It was postponed, however, and was
not held until December 15. At 7: 30 p.m . that day, James L. Sanders, the general
manager of the Respondent, addressed the salesmen who had gathered from all of
the Respondent 's sales locations . After discussing the general sales picture, Sanders
turned the discussion to the union organizing drive then in progress .4 Reading from
literature prepared by a San Antonio attorney dealing with the rights of unions and
individual employees in union organizing situations , Sanders declared , among other
things, according to Lauderdale's credited testimony:
. that the union couldn't keep us from getting fired and if we did get fired,
they couldn't get our job back for us, . that any man that didn't share his
viewpoints on this union situation , he would consider it a personal slap in the
face .5
Despite Sanders ' talk, some of the Respondent's salesmen from several locations
attended union meetings . Among those were Gilbert P. Lauderdale and William H.
'Smith of the Harrisburg lot. Both men had joined the Union in the early staiges of
the organizing drive. During the last half of December discussions of the pros and
cons of the Union frequently took place between the Harrisburg salesmen at break-
fast. Terry Gibbons, the manager of the Harrisburg lot, participated in many of
these discussions . Admittedly, Gibbons told the men on one or more of these
occasions that he did not think a union would work out for automobile salesmen.
c. The discharges of December 28; the events leading up thereto
On the morning of December 27, Sales Manager Gibbons assembled all six
salesmen at the Harrisburg lot in the sales office . Gibbons informed the men that
he had attended a sales meeting in General Manager Sanders' office and that the
Company "did not want any union activity around there or [they] would, be
released." 6
was on the payroll for only a week during the pay period in question . It is not believed,
however , that the conclusions to be drawn from these figures are rendered invalid by
reason of such slight understatements as may exist . In certain instances , inadvertent
mistakes in adding the totals of the 12 semimonthly periods have been found in the
"Total" column . These have been corrected in blue pencil on the original exhibit The
original figures appear in lead pencil on the exhibit , as placed there when the exhibit
was prepared
• This meeting was the first meeting of the salesmen held by Sanders in the evening
Previously Sanders had conducted his sales talks early in the morning
5 When questioned concerning whether he had made the statement first above quoted,
Sanders would neither admit or deny having done so . Sanders in effect admitted having
made substantially the statement last above quoted
6 This is the credited testimony of Richard Bergman, one of the salesmen, who was
called as a witness by the Respondent. Gibbons, while not denying warning the salesmen
that they would face discharge if they engaged in union activity, denied having said that
General Manager Sanders had instructed him to this effect
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the evening of December 27, Lauderdale and Sales Manager Gibbons drove to
a drive-in near the lot for a cup of coffee. Gibbons brought up the subject of the
low sales production which the Respondent was then experiencing, and asked
Lauderdale what could be done to improve matters. In the course of the discussion,
Gibbons mentioned that he was planning to lay some of the men off, and that he
probably would lay off Dudley Broyles, Dick Bergman, and Bob Thompson.
Lauderdale commented that he would be making a mistake if he let Bergman go,
because he was a "darn good" salesman . Lauderdale mentioned the low production
which as was then experiencing, commenting that it "was about as low as any-
body['s]." Gibbons replied, "Oh, you are just having a slow month." Lauderdale
mentioned on this occasion that he was going to the union meeting that evening and
invited Gibbons to go along with him. Gibbons declined, however. Smith, another
of the Harrisburg salesmen , also asked Gibbons to attend the union meeting that
night. Gibbons refused his invitation also.
About 9 o'clock the next morning, Gibbons called Lauderdale and Smith into the
office and told them that "Mr. Sanders had decided to make [it] a two-man lot and
because of [their] production [the Respondent] would have to let [them] go "
That same morning Gibbons also discharged Dudley Broyles and Vernon Lewis,
giving them the same explanation as he had Lauderdale and Smith, namely that he
was reducing the force to two men, and that he was terminating the men with the
lowest production.
The decision to reduce the force and the number to be terminated was made by
Sales Manager Gibbons alone. About the first of December, Gibbons had been
advised by General Manager Sanders that the lot would have to be closed unless pro-
duction improved materially. Several times in the past Sanders had observed to
Gibbons that he could handle the current production with a two-man force, or less.
Gibbons, as he testified, finally decided on the morning of December 28 to let four
men go and decided to terminate the ones having the lowest production for the
month of December. The figures as to the December earnings of the six men are as
follows:
Lauderdale ------------ $158.86 Lewis ---------------- $184.64
Smith ________________ 7 148 24 Bergman ------------- 533.22
Broyles --------------- 155.90 Thompson ------------ 310.86
Lauderdale was the senior salesman at the Harrisburg lot, having worked there
continuously for 'approximately 21/2 years, with the exception of about a month in
1959. In his first year of employment, he was the second highest of all of the
Respondent 's salesmen , including new car salesmen, both in regard to the number of
units sold and in the amount of earnings. Lauderdale was admittedly a "good sales-
man," as Sales Manager Gibbons testified. In 1959, he had earned $1,000 per month
or more during 4 months and received special recognition from the Respondent
on this account. No other salesman had as good a record in this respect. In the
first half of 1960, Lauderdale earned almost $4,000. In the last half of 1960,
Lauderdale's earnings slumped to a little over $2,400. His average semimonthly pay
in the last 6 months of 1960 amounted to $200.74.
Smith had worked for the Respondent at the Harrisburg lot for 14 months and
only Lauderdale exceeded him in seniority there. Smith, according to Gibbons, was
a "pretty good salesman ." Smith's earnings averaged $174 42 per semimonthly pay
period in the last 6 months of 1960, the only period for which figures are available.
d. Subsequent events
A day or two after their discharge, Lauderdale and Smith returned to the lot and
observed Vernon Lewis there. Lewis had been hired for the first time in late
November or early December 1960. Lewis informed them that he had been rehired
Thereupon, Lauderdale and Smith went in and spoke to Sales Manager Gibbons
about their discharge. Among other things Lauderdale stated, as he credibly testi-
fied, that it appeared "a little bit odd" that he should let them go for having a poor
month, and he pointed out that he had had such months before. Smith added that
it seemed unusual for the Respondent at the same time to "rehire a man that had
never produced and was new in the business " Lewis, as the Respondent admitted,
was insufficiently experienced to close a deal at this time. Gibbons made no reply
Gibbons testified that Lewis was rehired more or less as an "apprentice" to learn
the business. Several days later, Gibbons hired another man, Bilski. on this same
7 Smith was awnv the first week in December, consequently this figure does not represent
a normal full month 's earnings.
HEMPHILL FORD, INC. 839
basis. At the hearing Gibbons commented in connection with the hiring of Bilski
that "two men was hardly sufficient to run the lot. [He] really needed someone to
answer the telephone."
About January 11, 1961, the Respondent closed its Harrisburg lot and transferred
the used cars there to other Houston locations. At this time Bergman was trans-
ferred to selling new cars at the Respondent's Gulf Freeway location and Lewis and
Bilski were transferred to other locations. Thompson quit at the time of the closing
of the Harrisburg lot.
B. Conclusions
As indicated, above, the Respondent contends that Lauderdale and Smith were
terminated in the course,of a reduction-in-force at the Harrisburg lot and that they
were selected because they were among the employees having the lowest earnings in
the month of December. Various circumstances cast doubt on the sincerity of the
Respondent 's explanation in this regard.
In the first place, a salesman 's earnings in 1 month alone do not furnish an accurate
measure of a salesman's ability as a business producer. Due to the wide fluctuations
in the amounts of the salesmen' s earnings , good salesmen not infrequently experience
"slow months ." Sales Manager Gibbons recognized this fact in his conversation
with Lauderdale the evening before his discharge. In fact, the figures furnished by
the Respondent show that W. C. Smith, a salesman at another location, who had the
highest total earnings of all the Respondent's salesmen in the last 6 months of 1960,
earned only $159 54 in December 1960, as compared with Lauderdale's $158.86
and W. H. Smith's $148.24.
Secondly, in view of the rehiring of Vernon Lewis on December 29 or 30 and
the hiring of Bilski a few days later, it appears that the reduction-in-force at the
Harrisburg lot on December 28 was more sweeping than business considerations
warranted. And taking into consideration the needs of the Respondent's business
as a whole and the high rate of turnover which it experienced, it is evident that the
Respondent could reasonably have anticipated that normal attrition would take
care of any surplus of salesmen at the Harrisburg lot in a very short while. Trans-
fers of salesmen between various of the Respondent's locations were not uncommon.
As found above, the Respondent hired an average of between six and seven sales-
men a month for its various locations in the last 6 months of 1960. It hired eight
salesmen in the last 6 weeks of 1960.
Judged solely on the basis of their production in the last 6 months of 1960,
Lauderdale and Smith were about average producers when compared with the
Respondent's sales staff as a whole.8 However, they were better producers than
the average of those whom the Respondent was able to hire to replace those who
were quitting its employ each month. As found above, the average earnings of all
of the Respondent 's salesmen per semimonthly pay period in the last half of 1960'
were $200.27. Lauderdale's average earnings per pay period during this time were
$200 74 and Smith 's average earnings per semimonthly pay period in the last 6
months of 1960 were $174.42. The average earnings of the 40 salesmen hired in
the last half of 1960 amounted to $171.80 per pay period.
At the hearing the Respondent voiced no complaints against Lauderdale and
Smith other than that their production for December was low. They were experi-
enced automobile salesmen and had had many months' service with the Respondent.
Some of the salesmen whom the Respondent hired in the last half of 1960, were
wholly without experience and some of them turned out to be dismal failures.
Twenty-three of the forty newly hired salesmen averaged less earnings per pay
period than did Smith. Twenty-six averaged less than Lauderdale. Twelve of
these newly hired salesmen lasted only 2 months or less in the Respondent's employ.
In view of the Respondent's continuing need for salesmen and its difficulty in
hiring effective replacements for those who quit each month, I conclude that the
Respondent would not have discharged Lauderdale and Smith but for its desire to
combat the union organizing campaign which was then in progress.
My conclusion that antiunion considerations prompted,the discharge of Lauderdale
and Smith is based upon the whole complex of circumstances surrounding the
discharges. The Respondent was opposed to the union movement. General Man-
ager Sanders' talk to the salesmen on December 15 revealed his disapproval of the
organizing activities. Sales Manager Gibbons, who was responsible for the timing
of the discharges and the selection of the men to be let go, had bluntly warned that
e With respect to Lauderdale, at least, this was not a representative period. As found
above, Lauderdale had considerably higher sales in the first half of 1960, and was among
the Respondent's best producers in 1959
'$40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees engaging in union activity would be "released." Although the night
before the discharges, Gibbons had indicated to Lauderdale that he contemplated
discharging only three employees, not including either Lauderdale or Smith, the
next morning, after having been invited by Lauderdale to attend the union meeting
that night, Gibbons decided to include both Lauderlale and Smith in the group
slated for dismissal. Both men were informed early the next morning that they
were being terminated because of their low production in the month of December.
At the same time the Respondent retained in its employ at other locations four
other salesmen whose earnings in December, were about the same, or even less
than Lauderdale's and Smith's. As pointed out above, low production in 1 month
alone, does not furnish a reliable measure of a salesman's ability to produce. These
circumstances convince me that Gibbons discharged Lauderdale and Smith not
because of their low production for 1 month but rather because of their continuing
interest in the Union, and that Gibbons was primarily motivated by his desire to
squelch all union activity at the lot. Accordingly, the discharge of Lauderdale and
Smith violated Section 8(a) (3) and (1) of the Act.
Sales Manager Gibbons' threat that employees engaging in union activity would
be released was clearly coercive and hence constituted a further violation of Section
8(a)(1) of the Act.9
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, my
Recommended Order will direct it to cease and desist from the unfair labor practices
herein found, and to take certain affirmative action designed to effectuate the
policies of the Act.
My Recommended Order will also provide that the Respondent offer Gilbert P.
Lauderdale and William H. Smith immediate and full reinstatement to their former
or substantially equivalent positions, without loss of seniority or other rights and
privileges, and make each of them whole for any loss of pay he may have suffered
by payment to him of a sum of money equal to that which he would normally have
earned as compensation from the date of the discrimination to the date of the
offer of reinstatement, less his net earnings during said period, and in the manner
set out in F. W. Woolworth Company, 90 NLRB 289.
My Recommended Order will also direct that the Respondent preserve and, upon
request, make available to the Board or its agents, for examining and copying, all
payroll and other records necessary to analyze the amounts of backpay due under
the terms of my Recommended Order.
The unfair labor practices herein found are such as to indicate an attitude of
opposition to the purposes of the Act generally, and accordingly, the commission of
these and other unfair labor practices in the future is reasonably to be anticipated
from such past conduct. In these circumstances, the preventive purposes of the
Act may be thwarted unless the remedy is coextensive with the threat. To effectuate
the policies of the Act, therefore, it will be provided that the Respondent cease and
desist from infringing in any manner upon the statutory rights of its employees.
CONCLUSIONS OF LAW
1. By discharging Gilbert P . Lauderdale and William H. Smith , on December 28,
1960, Thad Felton, Inc., doing business as Hemphill Ford. Inc., has discriminated
in regard to their hire and tenure of employment , thereby discouraging membership
in Retail Automobile Salesmen , Local Union No. 501, affiliated with Retail Clerks
International Association , AFL-CIO, in violation of Section 8(a)(3) and (1) of
the Act.
2. By threatening employees with discharge because of their union activities,
Thad Felton , Inc., doing business as Hemphill Ford, Inc., has interfered with,
restrained , and coerced employees in the exercise of the rights guaranteed in Section
7 of the Act, in violation of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and the entire record , and pursuant
to Section 10(c) of the Act, the Trial Examiner hereby issues the following:
9I cannot accept the Respondent's contention that Gibbons' threat should be overlooked
because it was only an isolated Instance A single threat of discharge made by a super-
visor having the authority to carry it out cannot be regarded as having no significance,
especially where, as here, it was so promptly executed.
HEMPHILL FORD, INC. 841
RECOMMENDED ORDER
Thad Felton , Inc., doing business as Hemphill Ford , Inc., Houston , Texas, its
officers, agents, successors , and assigns , shall:
1. Cease and desist from:
( a) Discouraging membership in Retail Automobile Salesmen , Local Union No.
501, affiliated with Retail Clerks International Association , AFL-CIO, or in any
other labor organization of its employees , by discharging , refusing to reinstate, or
in any other manner discriminating in regard to their hire or tenure of employment
or any term or condition of employment.
(b) Threatening employees with discharge or other reprisals because of their
union activities , or in any other manner interfering with , restraining, or coercing
employees in the exercise of the right to self-organization , to form labor organiza-
tions, to join or assist the above -named or any other labor organization , to bargain
collectively through representatives of their own choosing, and to engage in any
other concerted activities for the purpose of collective bargaining or other mutual'
aid or protection , or to refrain from any and all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer Gilbert P. Lauderdale and William H . Smith immediate and full
reinstatement to their former positions , or to substantially equivalent positions,
without prejudice to their seniority or other rights and privileges , and make each
of them whole for any loss of pay he may have suffered as a result of his discharge,
in the manner set forth above in the section entitled "The Remedy."
(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 data necessary to analyze
and compute backpay.
(c) Post at its various establishments in Houston , Texas, copies of the notice
attached hereto marked "Appendix ." Copies of said notice , to be furnished by
the Regional Director for the Twenty-third Region , shall, after being duly signed by
an authorized representative of the Respondent, be posted by the Respondent
immediately upon receipt thereof , and be maintained by it for a period of 60
consecutive days thereafter , in conspicuous places, including all places where
notices to 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 othe material.
(d) Notify the Regional Director for the Twenty -third Region , in writing , within
20 days from the receipt of this Intermediate Report and Recommended Order,
what steps it has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner 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 Retail Automobile Salesmen, Local
Union No. 501, affiliated with Retail Clerks International Association, AFL-CIO,
or any other labor organization of our employees, by discharging them or in any
other manner discriminating against them in regard to their hire and tenure of
employment or any term or condition of employment.
WE WILL NOT threaten employees with discharge or other reprisals because
of their union activities, or in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right of self-organization , to form
labor organizations, to join or assist Retail Automobile Salesmen, Local Union
No. 501, affiliated with Retail Clerks International Association, AFL-CIO, or
any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act, or to refrain from any and all such activities.
WE WILL offer to Gilbert P. Lauderdale and William H. Smith reinstatement
to their former or substantially equivalent positions , without prejudice to their
seniority or other rights and privileges, and we will make each of them whole
for any loss of pay suffered as a result of his discharge.
:842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain or to refrain from becoming
or remaining members of Retail Automobile Salesmen , Local Union No. 501,
affiliated with Retail Clerks International Association, AFL-CIO, or any other
labor organization.
THAD FELTON, INC., DOING BUSINESS
AS HEMPHILL FORD, INC.,
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.
Brookside Industries , Inc. and Amalgamated Clothing Workers
of America , AFL-CIO. Cases Nos. 11-CA-1660, 11-CA-1669,
and 11-CA-1685. October 10, 1961
DECISION AND ORDER
On January 12, 1961, Trial Examiner Louis Libbin 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 Re-
port attached hereto. He further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after the Respondent and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Leedom].
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 briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon 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, Brook-
side Industries, Inc., Reidsville, North Carolina, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
133 NLRB No. 90.