Jimmie Green Chevrolet

National Labor Relations Board - Board Decisions

Sep 8, 1961

133 N.L.R.B. 44 (N.L.R.B. 1961)

44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
2. By coercively interrogating employees with respect to their union membership,
activities, and sentiments, Respondent has interfered with, restrained, and coerced
employees in the exercise of their rights guaranteed in Section 7 of the Act, thereby
engaging in an unfair labor practice within the meaning of Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2(6) and (7) of the Act.
4. The evidence does not establish that Respondent engaged in an unfair labor
practice within the meaning of Section 8 (a) (3) of the Act.
[Recommendations omitted from publication.]
Jimmie Green Chevrolet and Retail Automobile Salesmen, Local
Union No . 501, affiliated with Retail Clerks International
Association , AFL-CIO. Case No. 23-CA-1133. September 8,
1961
DECISION AND ORDER
On June 26, 1961, Trial Examiner Owsley Vose issued his Inter-
mediate 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
attached hereto. Thereafter the 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 rulings made by the Trial Examiner
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 the brief, and the entire record
in the case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
' We agree with the Trial Examiner that salesman Smith was discharged by Respondent
in violation of Section 8(a) (3) of the Act. Not only was Smith an admittedly exceptional
salesman but his absence from one morning's floor time , while serious, was also in-
advertent. While Vice President and General Manager Williamson testified that two
other salesmen had been discharged for absenteeism in the past 4 years both were guilty
of unexplained absences for a period of days One of these was rehired after 6 days and
the other , Trueblood , was allowed to resign Unlike Trueblood, and contrary to William-
son's statement of company policy, Smith was not permitted to resign . This evidence of
significantly disparate treatment coupled with the Respondent 's knowledge of Smith's
union activity and evidence that it suspected him of being the organizer of such activity,
in light of the Respondent's opposition to the Union, convinces us that the reason assigned
was pretextuous and that the discharge was in fact discriminatory within the meaning of
the Act.
133 NLRB No. 5.
JIMMIE GREEN CHEVROLET
ORDER
45
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, Jimmie Green
Chevrolet, 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 Asso-
ciation, AFL-CIO or in any other labor organization of its employees,
by discharging, refusing to reinstate, or in any other manner dis-
criminating in regard to their hire or tenure of employment or any
term or condition of employment.
(b) Coercively questioning employees about their union sympathies
and activities, or in any other manner interfering with, restraining,
or coercing employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through representa-
tives 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 the Board finds will
effectuate the policies of the Act :
(a) Offer Rex Smith immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him 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 of the Intermediate Report entitled "The
Remedy."
(b) Preserve and, upon request, make available to the Board and
its agents, for examination and copying all payroll records, social
security payment records, timecards, personnel records and reports,
and all other reports necessary to analyze and compute backpay.
(c) Post at its establishment, copies of the notice attached to the
Intermediate Report marked "Appendix." 2 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 no-
2 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." 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."
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices 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 other material.
(d) Notify the Regional Director for the Twenty-third Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , in which all parties were represented , was heard before me in
Houston, Texas , on May 2, 1961, upon the complaint of the General Counsel and
answer of Jimmie Green Chevrolet , 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 owns and operates a Chevrolet agency at Houston , Texas, where
it is engaged in the sale and servicing of new and used automobiles and trucks.
In the course of its business 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. Issues involved
The complaint alleges that the Respondent 's discharge of Rex Smith , one of its
new car salesmen , on December 19, 1960 , was violative of Section 8(a)(3) of the
Act, and that certain other of the Respondent 's conduct violated Section 8(a)(1) of
the Act . With respect to the principal issue involved in this case, the discharge of
Smith , the Respondent contends that he was lawfully discharged for having failed
to report for work on Saturday morning, December 17.
B. Smith's employment record
Smith had worked for the Respondent 4 months in 1957 as a used car salesman
and had left the Company's employ when the lot on which he was working was
closed down . In August 1960, Smith returned to the Respondent 's main location
with the intention of seeking reemployment as a used car salesman . One of the used
car salesmen suggested that there might be an opportunity selling new cars. Smith
went over to the showroom and spoke first with Eric F. Williamson , the Respondent's
general manager . When Smith explained that he had come in looking for a job as
a used car salesman , Williamson asked him whether he would not do better selling
new cars. When Smith expressed concern about the length of time it took to build
up a clientele of new car purchasers , Williamson offered to give him a guarantee of
$75 a week for 6 weeks to tide him over the difficult period. ' As a result of this
conversation , Smith commenced selling new cars under Percy Isgitt, the new car sales
manager, on August 10, 1960.
Smith had immediate success selling new cars. Although Smith did not work
the whole month of August , his compensation in the last 3 weeks in August exceeded
the compensation for the full month of all 10 other new-car salesmen. Smith's rate
of production in August was also higher than that of any other regular new car
JIMMIE GREEN CHEVROLET - 47
salesman, Smith having sold 11 units in 3 weeks as compared with the 12 units sold
by 2 other salesmen in the full month.'
For the entire period of his employment Smith had the next to the highest earnings
of any of the regular new car salesmen . Charles L. Flinker received the highest
compensation of any of the Respondent's new car salesmen in the last 5 months of
1960. He received $2,549.06 during this period. In these months, Rex Smith earned
$2,495.92. Bob G. Graves was paid only slightly less, $2,494.51, in the last 5 months
of 1960. However, Smith worked only 181/2 out of 22 weeks in the last 5 months in
1960. Flinker apparently worked 20 weeks during this period .2 Graves, so far as
the record shows, worked full time the last 5 months of 1960. Thus, comparing
Smith's earnings in 181/2 weeks with Flinker's in 20 and Graves' in 22, Smith's rate
of earnings , or the amount of earnings 'per week, was the highest of any of the
Respondent's new car salesmen.
With regard to the total number of units sold by new car salesmen in the last 5
months of 1960, Smith with 39 was second only to J. H. Burke, who sold 40 units
during this period.3 However, Burke received only $2,164,14 in compensation
during this period, several hundred dollars less than Smith received.
C. Sequence of events
1. 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 prog-
ress. 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 on 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.
Among those attending these meetings or otherwise taking part in its activities
were Rex Smith, Bob F. Hayes, and Marvin Frank, all of whom were employed by
the Respondent. During this period considerable talk about the Union took place
at the Respondent's establishment in which these and other employees of the
Respondent participated. From the time he first heard about the union movement on
December 7, Smith actively worked to interest his fellow salesmen at Jimmie Green
Chevrolet in the Union. He also communicated with his friends at other dealer-
ships in an effort to drum up support for the union movement.
2. Jimmie Green's speech to the salesmen
On Saturday morning, December 10, New Car Sales Manager Percy Isgitt an-
nounced that an important meeting would be held on the following Monday morning,
and that Jimmie Green was going to speak to the salesmen. Green, although the
president of the Respondent and the owner of the business, was not active in its
management. Occasionally Green visited the salesroom and chatted with the sales-
men. Less frequently he addressed the salesmen as a group.
On Monday morning, December 12, Green spoke to all of the salesmen. Among
other things, Green said on this occasion that he could not understand why the
salesmen were interested in the Union, asserting that the Respondent, unlike some
other dealers, had always given many of the benefits which he understood the Union
was seeking, such as Sunday closing, paid. vacations, hospitalization, and demonstra-
tors for the salesmen's personal use. Green pointed out that if the Union were
1 Excluded from consideration here and in the discussions which follow are the earnings
and production rate of Marvin Frank, the Respondent's fleet manager, who was princi-
pally engaged in making fleet sales.
a The record shows that Flinker did not work the first 2 weeks in December 1960.
Burke apparently worked full time in the last 5 months of 1960 Comparing Burke's
rate of production, 40 units in 22 weeks, with Smith's 39 units in 18% weeks, Smith's
rate of production per week was higher than Burke's
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
successful in obtaining guaranteed salaries for the men, then the dealers would have
to insist on certain production quotas, and that this would hurt the salesmen as well
as the dealers. Green further mentioned that he did not believe that the union move-
ment would work for the further reason that the organized dealers could not compete
with the unorganized dealers outside of Houston who would be able to undersell the
Houston dealers. Green also said during this talk that the national effort to organize
automobile salesmen had failed, and asserted that violence had attended earlier
efforts to organize the mechanics. He reminded the salesmen of Texas' right-to-work
law and made a statement to the effect that the courts have held that pickets could not
interfere with deliveries of vehicles to struck dealerships. At the conclusion of his
speech, Green invited anyone desiring to speak in favor of the Union to do so, and
to take all the time he wanted. No one accepted this invitation.
3. Manager Isgitt's conversations with employees about the Union
A day or two after Green's talk on the morning of December 11, Mike Keenan,
the manager of the Respondent's used car department, in conversations with two of
the salesmen, referred to Smith as a "union organizer." When he asked Bob Hayes
if Smith was a union organizer, Hayes said that he was not. Whereupon Keenan
stated that "word was going around that Rex (Smith) was a union organizer."
Keenan also spoke to Marvin Frank about Smith's being a "union organizer."
Frank subsequently informed Smith of this fact.
On December 15, Sales Manager Isgitt called Smith in his office where, as Smith
testified, they had "very friendly" conversation about the Union. Isgitt asked Smith
how many of the salesmen were in the Union and, after stating that he did not think
that a union for automobile salesmen was good for either the salesmen or the dealer,
inquired of Smith what he thought he would gain from union affiliation. Smith re-
plied that he liked his job, and that since he had been accused of being a "union
organizer," he did not want to discuss such a "controversial" topic with him. Isgitt
went on to say that commencing the first of the year the Respondent was going to
have to start applying its 16-car production rule to him .4 Smith replied that he
thought that the 16-unit requirement was a "threat." Isgitt denied this, asserting
that it was intended to stimulate the men to be quality salesmen. Isgitt then went on
to say that if he thought the 16-unit requirement constituted pressure upon him, to
consider how much greater pressure he would be subjected to under a union con-
tract providing for a guaranteed salary, asserting that with such provisions in effect
the dealer would have to demand more sales.
As Isgitt admitted, he had similar conversations about the Union in December
with almost every new car salesman employed by the Respondent. According to
Bob Hayes' credited testimony, Isgitt told him that the Union could not benefit either
him or any of the other salesmen . On other occasions, Isgitt questioned Hayes as to
whether he had attended union meetings and also as to what he and the other
salesmen though about the Union.
4. The discharge of Smith
The Respondent's 11 or 12 new car salesmen work in 4V2 -hour shifts every week-
day and they work all day every other Saturday. The Respondent, however, permits
the salesmen to make arrangements among themselves to trade shifts as long as the
requisite number of salesmen is on the floor at all times. On Saturday, December 10,
Smith was not scheduled to work. However, he substituted for another salesman
on this occasion. Forgetting that Saturday, December 17, was his scheduled work-
day, Smith did not report for duty that morning. When he called the showroom
about 10 that morning to ascertain whether he had received any telephone calls, the
operator informed him that Isgitt was looking for him. Smith asked to speak to him,
but Isgitt's line was busy so Smith said he was coming in later anyway and would
speak to Isgitt then.
When Smith arrived at the showroom about 1 p.m., Isgitt had left for the day.
One of the salesmen informed Smith that Isgitt was "very upset" because he had
failed to report for work that morning. When Smith checked the schedule he ascer-
d The Respondent customarily required its salesmen to sell 16 units or to produce the
equivalent in gross profits every 2 months. Under ordinary circumstances failure to
achieve such sales would result in discharge However, in the latter part of December
1960, the Respondent, because of the deteriorating economic situation, decided to reduce
this requirement to 12 units every 2 months, effective the first of the year. Only 1 of
the Respondent 's 11 or 12 new car salesman was able to meet the old quota in November
and December 1960.
JIMMIE GREEN CHEVROLET 49
tained that he was due to report for work that day. Jimmie Green stopped in at
the showroom that afternoon. As he was leaving at 4 p.m., he asked Smith where
he had been that morning. Smith told him that he was ashamed to admit it, but
that he had been confused as to his day off, and had not been there. Green said
nothing and left.
After completing the sale of a car, Smith called Isgitt at his home late that
afternoon and apologized, as follows, as Isgitt testified:
Gee, I am sorry I didn't show up. Some of the boys tell me you are mad at
me. I just goofed, I guess. I just didn't realize I was on the floor today.
Isgitt replied that his patience was exhausted, that he was worn out talking to him
about observing the Respondent's rules, and that he was going to see that this was
accomplished, and would see him Monday.
Smith attended a sales meeting conducted by Isgitt the first thing the following
Monday morning. Although Isgitt admittedly observed Smith at this meeting, he
said nothing to him at that time. After the meeting, since his shift did not com-
mence until later that day, Smith left the showroom and attended to personal errands.
Later that morning Smith's wife informed him that Isgitt had called him twice.
When he reached Isgitt on the telephone, he asked him if someone were looking for
him. Isgitt said no, that he wanted to see him. Smith said he would come right
away.
Shortly after Smith arrived at the showroom, Isgitt took him up to General Man-
ager Williamson's office. There, in the presence of Williamson, Isgitt told Smith that
he hated "to be the one to blow the whistle" on him, but that if he did not think
enough of his floor time to show up for work, he did not care much about his job.
When Smith asked if this meant that he was discharged, Isgitt told him to return the
keys to his demonstrator. Smith asked Isgitt to give him another chance. Isgitt
refused, saying that he had warned him less than a week before about being late and
that he had lost his floor time on this occasion. Smith thereupon asked "if union
activities had any bearing on this." Isgitt declared vehemently, "it absolutely did
not."
Isgitt, as he credibly testified, decided to discharge Smith the same day he dis-
charged him. Before doing so he informed General Manager Williamson of his
decision and obtained his approval.
D. The Respondent's contentions; conclusions
The Respondent contends that it had repeatedly spoken to Smith about his lack of
punctuality in reporting for work, and that only a short time before he was dis-
charged, Smith had been given an ultimatum to the effect that if he were late again
he would be discharged. Consequently, so the Respondent's argument goes, when
Smith failed to show up at all on Saturday morning, December 17, the Respondent
had to make good on its ultimatum to Smith in order to maintain a semblance of
discipline among the salesmen.
The Respondent sought to have its salesmen be punctual about reporting for their
shifts and for morning sales meetings. Isgitt repeatedly cautioned the men about
coming in on time. It did, however, allow 30 to 45 minutes leeway. Salesmen who
were later than 45 minutes were required to call in and explain matters. Employees
who were later than 45 minutes without calling in were customarily deprived of their
floor time that day. -
Smith, as he admitted, had been deprived of his floor time for being late on one oc-
casion about a week before his discharge. He had been similarly disciplined for the
same offense about a month before his discharge.
Isgitt testified that he had talked with Smith about his tardiness several times in
the last 2 or 3 weeks of his employment. Isgitt further testified that in his last talk
with Smith only 2 or 3 days before the Saturday on which Smith failed to show up,
he had warned Smith that he would be discharged if he were late again . Smith was
called in rebuttal. In response to counsel for the General Counsel's question as
to whether he recalled being given any such warning by Isgitt, Smith replied firmly,
"No, sir, not since I started." This is one of the comparatively few conflicts in the
testimony in this case. In resolving it I have had to rely on the demeanor of the
conflicting witnesses, the completeness of their recollections, and the inherent proba-
bilities of the situation
Although Isgitt was firm in his testimony that he had given Smith a discharge
warning but a few days Before his discharge, he was unable to recall the occasion
or the incident giving rise to this reprimand. Thus, when asked what was the oc-
casion for giving such a warning, Isgitt replied, "Well, the occasion was no special
024067-62-vol 133-5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasion because there's very seldom a day pass that I don't talk to several salesmen
about various shortcomings or various areas where some improvement may be had."
When questioned again concerning the "specific thing" about which he talked to
Smith on this occasion, Isgitt mentioned in general terms "punctuality and attention
to the requirements of his job as a salesman at Jimmie Green Chevrolet."
On the other hand, Smith exhibited•a good recollection for details in his testimony
about his conversations with Isgitt. It appears from Smith's testimony that the
only occasion shortly before his discharge on which Isgitt reprimanded him was about
a week before his discharge, at which time Isgitt spoke to him about being late and
told him that he had "lost his floor time" that day because of his tardiness. Smith
impressed me as a reliable witness who was careful not to overstate matters.
While on the whole Isgitt appeared to be a truthful witness, where Smith's short-
comings as an employee were concerned, Isgitt, in my opinion, was prone to exag-
gerate. Isgitt in his testimony indicated dissatisfaction with Smith's sales production.
While the best that any of the Respondent's new car salesmen could do in the way
of sales production may not have satisfied Isgitt, nevertheless, in view of the fact
that Smith, as the Respondent's own figures show, was one of the Respondent's top
two new car sales producers, such testimony is misleading, to say the least. Under
all the circumstances, I do not credit Isgitt's testimony to the effect that he had
given Smith an ultimatum only a few days earlier that he would be discharged if he
were late again. I find, in accordance with Smith's testimony, that he was given
no warning of discharge by Isgitt. Accordingly, I reject Isgitt's testimony and the
contention based thereon, that in discharging Smith he was merely carrying out the
ultimatum which he had given Smith a few days earlier.
Still to be resolved is the question as to the motivation underlying Smith's dis-
charge. On the one hand is the fact that Smith, after being warned on several oc-
casions about being late, missed one whole morning of showroom duty-a busy day
at that-because he got mixed up in his own mind as to which Saturday he was to
report.
On the other hand are various facts which suggest that the Respondent might not
have viewed Smith's offense so seriously had it not known that Smith was seriously
interested in the movement to organize the Houston automobile salesmen. First is
the fact that Smith was one of the top producers among Respondent's new car sales-
men. Isgitt himself recognized, as he testified, that Smith had "a lot of native
ability " Isgitt testified further concerning Smith's competence as follows: "He has
an ability to boost morale of the men. He has an ability to make customers imme-
diately just fall for him. He has got a lot of personality there, " Effective
automobile salesmen are difficult to obtain in Houston, as is shown by the turnover
of salesmen at the Respondent's establishment and by the relatively low compensa-
tion received by some of the salesmen retained on the Respondent's staff.
In addition, while Smith had been reprimanded several times for tardiness, Isgitt
admitted that all of the other salesmen had been late at one time or another. Isgitt
;further admitted that Marvin Frank, the Respondent's fleet manager (nonsuper-
visory), was frequently late for sales meetings and on occasions had missed them
entirely. However, Isgitt contended, with some justification, that missing floor duty
was much more serious than missing sales meetings. Smith's missing of the floor
duty on the Saturday morning in question was not due to any conscious flouting of
the Respondent's regulations, but rather to an inadvertent mistake on his part as
to his scheduled workday, a mistake which he freely admitted having made. In
areas where effective employees are difficult to obtain, employers do not normally
terminate superior employees for unintentional violations of employer rules.
The Respondent was opposed to the organization of its salesmen This is clear
not only from the President Jimmie Green's speech to the employees but also from
Sales Manager Isgitt's conversations with Smith and Hayes in which he stressed the
disadvantages of union affiliation. The Respondent's hostile attitude towards the
organization of its employees is relevant in determining its underlying motivation in
discharging Smith. So also is the fact that the Respondent discharged Smith at the
height of the union organizing drive. In view of these facts, and the further fact that
Smith was one of the Respondent's two top new car sales producers, I conclude that
absent Smith's active support of the efforts to organize the Respondent's salesmen,
Sales Manager Isgitt would have overlooked Smith's mixup on reporting days, and
that he decided to utilize this incident as a pretext for discharging Smith in order to
be able to pose an object lesson to the other salesmen as to the consequences of
supporting the Union. Accordingly, Isgitt's discharge of Smith on December 19,
1960, violated Section 8(a) (3) and (1) of the Act
In view of the various expressions of opposition to the Union by Jimmie Green
and by Isgitt and in view particularly of Isgitt's discriminatory discharge of Smith,
it is evident that Isgitt's questioning of employees about their union sympathies and
JIMMIE GREEN CHEVROLET 51
activities was not done out of idle curiosity. In these circumstances, Isgitt's ques-
tioning acquired a coercive impact and was therefore violative of Section 8 (a)( I) of
the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I 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.
I will also recommend that the Respondent offer Rex Smith immediate and full
reinstatement to his former or a substantially equivalent position, without loss of
seniority or other rights and privileges, and make him 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 a manner set out in F. W Woolworth Company, 90 NLRB 289.
I will also recommend that the Respondent preserve and make available to the
Board or its agents, upon request, for examining and copying, all payroll and other
records necessary to analyze the amounts of backpay due.
The unfair labor practices herein found are such as to indicate an attitude of op-
position 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 preventative 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 Rex Smith on December 19, 1960, Jimmie Green Chevrolet
has discriminated in regard to his hire and tenure of employment, thereby discourag-
ing 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 coercively questioning employees concerning their union sympathies and
activities, Jimmie Green Chevrolet 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.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, 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 coercively question employees about their union sympathies
and 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 purpose 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 Rex Smith reinstatement to his former or a substantially
equivalent position, without prejudice to his seniority or other rights and
privileges, and we will make him whole for any loss of pay suffered as a result
of his discharge.
52 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.
JIMMIE GREEN 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.
Local 694, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO [Jervis B. Webb Company ] and Elmer
P. Barr
Lower Ohio Valley District Council of Carpenters and Joiners
of America, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO [Jervis B. Webb Company ] and Elmer
P. Barr. Cases Nos. 25-CB-395 and 25-CB-404. September 8,
1961
DECISION AND ORDER
On October 27, 1960, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
l,as delegtted its powers in connection with this case to a three-
member pb,,nel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner 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 recommendations
of the Trial Examiner, with the following additions.
We agree with the Trial Examiner's conclusion that there is in-
sufficient evidence to support a finding that the Respondents and the
Employer were parties to an unlawful hiring arrangement whereby
members of Respondents were given preference in hiring over non-
members. It is clear, as our dissenting colleague concedes, that the
Respondent Council's area contract is nondiscriminatory on its face.
It is also clear that on January 27 the business agent of Respondent
Local 694 specifically told Barr, the alleged discriminatee, that he
had no objection to Barr's going to work for the Employer, and that on
133 NLRB No. 9.