Larry Barnes Chevrolet Co.

National Labor Relations Board - Board Decisions

Feb 26, 1969

174 N.L.R.B. 818 (N.L.R.B. 1969)

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Larry Barnes Chevrolet Company and Local Lodge
No. 1491, International Association of Machinists
and Aerospace Workers, AFL-CIO. Case
19-CA-3985
February 26, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 14, 1968, Trial Examiner Herman
Marx issued his Decision in the above-entitled
proceeding, as corrected by an erratum issued on
November 22, 1968, finding that the Respondent
had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board had considered the
Trial Examiner's Decision, the exceptions, and the
entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Larry Barnes
Chevrolet Company, Boise, Idaho, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
'We disagree with the Trial Examiner 's finding that General Manager
Smith did not testify about the February 27 meeting or the resulting
recommendation that the Company subcontract its appearance
reconditioning work. The record inferentially reveals that Smith's
testimony on this matter is consistent with Reconditioning Manager
Thompson's testimony Although the Trial Examiner apparently gave some
weight to a supposed inconsistency between Smith and Thompson's
testimony , we believe that, even though no such discrepancy exists, the
record supports the Trial Examiner 's conclusion that the Respondent
violated Section 8(a)(3) and (1) of the Act by discharging employee
Martin.
(herein the Respondent or Company), has violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended (herein the Act),' by subcontracting certain
work, and thereby terminating the employment of one
Jack A. Martin, because of his activities in support of a
labor organization, Local Lodge No. 1491, International
Association of Machinists and Aerospace Workers,
AFL-CIO (herein the Union).2
The Respondent has filed an answer denying the
commission of the unfair labor practices imputed to it in
the complaint.
A hearing on the issues was held before me, as duly
designated Trial Examiner, in Boise, Idaho, on July 9,
1968. The General Counsel, the Union, and the
Respondent appeared and were afforded a full opportunity
to adduce evidence, examine and cross-examine witnesses,
and submit oral argument and briefs.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having read and
considered the briefs filed with me since the close of the
hearing, I make the following findings of fact:
FINDINGS OF FACT
L NATURE OF THE RESPONDENT'S BUSINESS;
JURISDICTION OF THE BOARD
The Company is an Idaho corporation; maintains a
place of business in Boise, Idaho, where it is engaged in
the business of selling new and used cars at retail; and is,
and has been at all material times, an employer within the
meaning of Section 2(2) of the Act.
In the course and conduct of its business, the Company
annually derives revenue in excess of $500,000 from its
retail sales, and annually purchases products valued in
excess of $50,000 directly from suppliers located outside
of Idaho; and such products are shipped from such
locations to points within the said state. By reason of such
purchases and shipments, the Company is, and has been
at all times material to the issues, engaged in interstate
commerce, and in operations affecting such commerce,
within the meaning of Section 2(6) and (7) of the Act.
Accordingly, the National Labor Relations Board has
jurisdiction over the subject matter of this proceeding.
IL THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material to the
issues, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
Jack A. Martin has been in the Company's employ
several times, first entering it in January 1967. In his last
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner: The complaint alleges
that an employer, Larry Barnes Chevrolet Company
129 U.S C. 151, et seq
The complaint was issued on June 13 , 1968, and is based upon a charge
filed by the Union with the National Labor Relations Board on April 8,
1968. Copies of the charge and complaint , and a notice of hearing, have
been duly served upon the Respondent and all other parties entitled
thereto
174 NLRB No. 121
LARRY BARNES CHEVROLET CO. 819
employment, which began on October 1, 1967, he worked
in successive periods as a "lot man" (performing such
tasks as washing and starting cars on the used car lot, and
maintaining its condition); as a used car mechanic; and as
an "appearance reconditioner" in the Company's
reconditioning department, which has the responsibility of
performing such work on used car engines, bodies and
interiors as may be required to put the cars in condition
for sale. Appearance reconditioning consists, basically, of
improving the appearance of used car interiors to make
them presentable to customers. Martin was assigned to
that work from the job of mechanic in December 1967,
receiving an increase in his monthly salary from $375 to
$425. He worked in appearance reconditioning until
March 15, 1968, when his employment was terminated
under circumstances to be described later.
In January 1968,' the Union began a campaign to
organize employees of automobile dealers in the Boise
area, including the Company, and to that end held four
meetings, the first in the latter part of February and the
last on March 11, 1968. The first three meetings were
attended by about a dozen people, but the last was a
"mass meeting," open to management personnel, as well
as employees, and attended by 86 persons.
Martin was active in the organizational campaign at the
Company's establishment, soliciting support for the Union
from most of the employees there.' He attended each of
the meetings, and at the "mass meeting" of March 11
distributed union literature and "cards (for) people to
sign;" recorded the names and addresses of those who
attended as they arrived; and addressed the meeting for
about 15 minutes, advocating union organization,
outlining benefits of unionization, and expressing the view
that by means of a strike "we could close every shop in
town to gain what we wanted." Among those in the
audience were Martin's immediate supervisor, Gary
Boggis, then "manager" of the reconditioning department,
and Frank Barnes, the son of Larry Barnes, executive
head of the Company.
B. The Discharge
On March 13, two days after Martin's speech at the
"mass meeting," Boggis told him that the Company was
discontinuing appearance reconditioning in its shop, and
that he would therefore be terminated as of March 15.
Boggis, who was accompanied on this occasion by a man
named Rummel who operates an enterprise known as
Superior Auto Service, which performs appearance
reconditioning work as a subcontractor, told Martin that
he could fill a vacancy as appearance reconditioner at
Superior at the same salary he had been receiving.
Martin looked into the proposal on the following day,
speaking to Rummel who offered him the opening, but at
a smaller salary than the Company had paid him.
Superior's offer was "$400 a month and no fringe
benefits" such as pension and insurance programs. Martin
declined the job offer.5
'Unless otherwise specified , all dates mentioned below occurred in 1968
'Martin distributed some 20 "cards" to employees for execution
Presumably , these were forms authorizing union representation for the
card signatories.
'At one point in his testimony , Martin evidenced some uncertainty
whether he was offered $425 or $400. However, a memorandum of
agreement (Resp Exh. 8) between the Company and Superior for
appearance reconditioning work by Superior notes that the latter offered
On March 15, his last day of work for the Company,
Martin asked its general manager, Jason Smith, who has
overall responsibility, under Larry Barnes, for its
operations, whether there was a job opening for him, and
suggested that he be employed in "new car servicing", or
as a mechanic. Smith replied that the Company was
retrenching, and had no place for Martin.
Since Martin's termination, the Company has "farmed
out" its appearance reconditioning work to Superior and
other contractors.
About a month after his discharge, and following the
service of the charge in this case upon the Company,
Martin wrote Larry Barnes a letter, noting that he had
been complimented for his work, and stating that he
wished to return and that the letter "would be a
continuing application for employment." Several days
later, he received a letter, apparently in reply, from the
Respondent's service and personnel manager, Stanley
Ross, requesting that Martin "come down and fill out an
application." Martin called at the Company' s premises a
few days later, procured an application form, completed
it, and filed it with Ross' office. The Company has neither
reemployed Martin nor offered him reemployment.
C. Discussion of the Issues; Concluding Findings
It is clear that the management was aware that Martin
was a union activist at the time it decided to terminate
him. For one thing, Boggis, Martin's supervisor, was at
the March 11 "mass meeting", which Martin addressed
on the subject of union aims and benefits, alluding to the
power of union organization to "close every shop in town
to gain what we wanted", and for another matter, Smith,
although claiming that he was not told "what" Martin
had said, admittedly was informed in "the next day or
two" by "some of our people" that Martin had addressed
it. Smith does not identify his informants beyond saying
that they were "several of our mechanics," but, passing
that, it burdens credulity that Martin would address the
"mass meeting" and make the speech he did in the
presence of Boggis and the younger Barnes, and of the
"several" mechanics to whom Smith alludes, and that not
one of these would tell Smith anything of what Martin
had said there. I do not credit Smith in that regard, and,
on the contrary, am convinced and find that at the time of
the decision to terminate Martin, Smith was aware, at the
least, that Martin in his speech had advocated the
unionization of employees of Boise automobile dealers.'
The General Counsel, pointing to Martin's union
activities, particularly his speech at the March 11 "mass
meeting," and stressing the fact that Martin was notified
of his termination only two days after the speech,
contends that the decision to subcontract its appearance
reconditioning work, and thereby terminate Martin's
employment, was motivated by a purpose to rid the
Company of a union activist, and was therefore unlawful.
The Respondent, on the other hand, disclaiming such
an aim, maintains that the management had had a
proposal to "farm out" such work under advisement
before the organizational campaign began, and actually
decided on that course before the March 11 meeting. As
support for its position, the Respondent produced a
Martin a job at a monthly "starting salary" of $400 . I am satisfied that
the salary offer was $400 per month.
'The Respondent , it may be noted, did not call Boggis as a witness, nor
explain its failure to do so. Particularly in view of these omissions, the
record fairly warrants a conclusion that Boggis heard Martin's speech.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
memorandum dated December 19, 1967, from Jason
Smith to Larry Barnes, outlining a number of
recommendations for 1968, and stating in the course
thereof that in the interest of conserving space, and of
economy and efficiency, " I will again propose that we
seriously consider to again sublet our appearance
reconditioning work as we did until February 1967"
(emphasis supplied). According to Smith, he had made the
recommendation "many times" since February 1967 when
the Company had once before abandoned subcontracting,
and had undertaken to do the work in its shop
(incidentally, hiring Martin for the work in one of his
earlier employments by the Company).
I find no reason to doubt the authenticity of the
memorandum, and in the light of its terms am persuaded
that Smith had previously made repeated
recommendations to the same effect,' but the fact that
Smith's recommendations were made well before the
union organizational campaign began falls far short of
explaining the timing of the subcontracting arrangement,
and Martin's related discharge.
Smith testified that the actual decision to subcontract
the work was made "around March 1," thus intimating
that the decision antedated the March 11 "mass meeting,"
although leaving one to guess the range of his
approximation in relation to March 11, but passing this
aspect of his testimony for the moment, it is noteworthy
that Smith, who is in charge of the Company's operations
under Larry Barnes, professed an inability to explain why
his repeated recommendations for the change had not
been accepted over a period of about a year preceding the
actual decision to make the change, offering the limp
explanation that Barnes "didn't exactly say why; he
doesn't always tell me why "
This does nothing to the hard fact that the change went
into effect soon after Martin' s "mass meeting" speech,
and in the face of that fact, and of the undisputed
evidence that Martin was given no inkling of the projected
change until after the speech, Smith's generalization that
Barnes (who, it may be noted, did not testify) made the
subcontracting decision "around March 1" is not, in my
judgment, a reliable predicate for a finding that the
decision antedated the "mass meeting" speech.
On the contrary, the intended intimation that the
decision was made before the speech appears to me to be
an improvisation aimed at dilution of the important fact
that Martin's termination came soon after the speech, and
that view of the matter is fortified by an examination of
documentary evidence, and related testimony given by a
management witness, Eugene Thompson, who entered the
Company's employ on February 22, 1968, and according
to his account, was, at the time of the subcontracting
decision a few days later, in "the process of taking over"
the reconditioning department from Boggis, who was
"breaking [him] in" for his duties there.
'The record, raises some question concerning a memorandum from
Boggis to Smith , dated December 6, 1967, alluding to Martin's appearance
reconditioning function , and the insufficiency of help for that work, and
recommending that it be discontinued in the shop and "farmed out" to
speed up the process. Martin testified without contradiction (except as the
memorandum suggests the contrary ) that he was assigned to appearance
reconditioning in his last employment by the Company about December
22, 1967, or, in other words, about two weeks after the date of the
memorandum . Boggis did not testify, but, in any case , I see no need to
resolve the conflict in view of the conclusion regarding Smith's
memorandum of December 19, 1967, and that he had on previous
occasions recommended to Barnes that the appearance reconditioning work
be subcontracted.
Thompson gave testimony to the effect that two
"efficiency experts" had recommended that the
appearance reconditioning work be subcontracted, that he
submitted the recommendation to Smith and Larry
Barnes; and that "on or about" February 27, 1968
(apparently meaning on that date or "prior" thereto,
according to the context of Thompson's testimony at the
relevant point), he, Smith, Barnes, and Rummel, the
operator of Superior, together discussed the
subcontracting arrangement and negotiated "a joint
agreement" regarding the matter. Thompson identified a
memorandum dated February 27, 1968, from himself to
Barnes, which states that the "efficiency experts, Bill
Smythe and Dick Bower, advise closing the Appearance
Re-conditioning Department," and subcontracting its
work; that that "means laying off our reconditioning man,
Jack Martin," that "we have taken this into consideration
and have arranged with Superior Auto Service to do our
appearance re-conditioning on a charge-by-car-basis"; and
that Superior "will need an extra man and [is] willing to
hire Jack Martin at the same pay schedule that he is
receiving now at this organization."
Thompson's picture of the submission of the
recommendation of the "experts" to both Smith and
Barnes, and of the "joint agreement" reached at a
meeting of himself, Smith, Barnes and Rummel, is out of
kilter with Smith's testimony. Smith not only omits any
mention of the alleged recommendation and meeting, but
depicts Barnes as long resistant to his own repeated
recommendations for the change, and professes ignorance
of the reason that led Barnes to make it. It is difficult to
believe that Smith, the general manager of the enterprise,
would be unaware of the reason, but that his subordinate,
Thompson, who entered the Company's employ only a
few days before February 27, and was then in training to
assume supervision of the reconditioning department,
would be privy to the reason, as Thompson in effect
claims with his testimony regarding the recommendation
of the "experts" and its alleged submission to Barnes.
And it is an illuminating fact that the only actual
tangible evidence of an agreement between the Company
and Superior, apart from Thompson's word about the
matter, is a memorandum of agreement, dated March 14,
1968, drawn by Thompson, executed by Rummel, and
"agreed to" by Thompson for the Company, specifying
the prices to be charged the Company (and stating that
Superior had offered Martin a job at $400 per month -
$25 less than he had been receiving from the Company,
although the February 27 document states that Superior
was "willing to hire Jack Martin at the same pay" he had
been receiving). To be sure, Thompson claims that the
price arrangements, except for some later "minor"
changes, were made in the agreement reached on or before
("as of') February 27, but there is no other evidence, hard
or otherwise, to support this claim., The February 27
document says nothing about prices, although one would
think that these would be the core feature of the
subcontracting arrangement it purports to describe.
It is noteworthy, too, that after Thompson's attention
was directed to the March 14 agreement and Smith's
testimony that the subcontracting decision was made
about the beginning of March, Thompson hedged on his
prior testimony that the agreement was made "as or,
February 27, and on the meaning of the February 27
document, which similarly would lead one to believe that
"The March 14 agreement contains several price changes in ink.
Obviously , these were made on or after March 14.
LARRY BARNES CHEVROLET CO.
the arrangement had been made by that date, testifying,
somewhat argumentatively, that the decision was made in
the "latter part of February or the first part of March;
there is only a variance of one or two days there"; and
conceding that when he wrote the memorandum no
subcontracting agreement with Superior had yet been
made, and that the purpose of the document was to
convey the "suggestion" of the "experts" to Barnes.
The February 27 memorandum is a self-serving
document prepared and identified by an agent of the
Respondent, and in the nature of things, the other parties
to this proceeding, not being privy to the circumstances of
its origin, are not in a position to offer a direct challenge
to its authenticity. That, however, imposes no obligation
upon the fact-finder to accept it out of hand. Its truth, in
the last analysis, depends upon the truth of its author,
Thompson, and for the reasons spelled out above, I find
so large an aura of unreliability over his testimony that I
am unable to accept either it or the February 27
memorandum as a guide to the truth of the timing of the
subcontracting decision. In short, the Respondent's claim,
offered through Smith and Thompson, that the
subcontracting decision antedated Martin's "mass
meeting" speech bears earmarks of contrivance, and I do
not credit it.'
On the contrary, much in the record persuasively points
to a direct connection between Martin' s union activities
and his termination. It is a fact that his supervisor,
Boggis, was present at the March 11 "mass meeting"; and
that word of Martin's speech soon thereafter reached
Smith. It is a fact that Boggis informed Martin of his
discharge on March 13, only two days after the speech;
that Martin had had no prior intimation of any intention
to subcontract the work he had been doing; and that, so
far as appears, none had been given to any other
nonsupervisory employee. It is a fact, too, that Larry
Barnes who, more than any other, could bear witness to
the timing and reason for his change of mind after
repeatedly rejecting Smith's recommendations to
subcontract the appearance reconditioning work, did not
testify; and that Smith, with overall responsibility, under
Barnes, for the operation of the Respondent's enterprise,
professes ignorance of Barnes' reason . And it is a fact,
also, that the document embodying the agreement between
the Company and Superior is dated March 14, several
days after the "mass meeting" speech. These facts,
particularly in the light of the contrasting unreliability of
the testimony of Smith and Thompson regarding the
timing of the subcontracting decision, amply warrant a
'The two "experts ," both of them "new car dealers," were not produced,
but the Respondent called one William F Finley who gave testimony to
the effect that he is in the business of analysing retail automobile
enterprises with a view to improving their profit margin, that he had
repeatedly studied the Company's operations over a period of years, and
that "at the end of February or very early in March " 1968 he had told
Barnes that the Company' s "inventory turnover was poor (and its) gross
was low," and had recommended that it subcontract appearance
reconditioning . Finley indicated that he makes such a suggestion routinely
"to all clients" with a large business volume, and this would suggest that
he had made it to the Company before In any case, the alleged suggestion
was but one of many such made over a period of a year prior to the
change , as Smith 's testimony attests; and the important question is whether
the decision to make the change, and not any of the many
recommendations that it be made, antedated Martin's "mass meeting"
speech On that score, Finley's testimony adds little or nothing of
substance to that of Smith . Moreover , I note that Finley seemed uncertain
when it was that he made the recommendation to Barnes, stating that he
could not say when "without my work diary ," but that his recollection was
that " it was the end of February or very early in March."
821
conclusion that the decision was a direct result of Martin's
open manifestation of union activism, in Boggis' presence,
at the March 11 meeting; and that the purpose of the
subcontracting arrangement was to dispense with Martin's
services, and thus rid the Company of a union activist
That view of the matter is not negated by the evidence
of the job offer to Martin by Rummel at the Company's
insistence. Martin's termination, even if he. had entered
Superior's employ, would still have had the effect of
ridding the Company of a union activist, but, in addition,
the offer and the paper entries related to it have such
earmarks of ritual as to raise a doubt of the sincerity of
the offer, and much suspicion as to the purpose of the
entries. Rummel did not testify, and the Respondent does
not explain why Rummel's offer to employ Martin at the
same monthly salary, $425, as he had been receiving, as
transmitted to him by Boggis, in Rummel's presence, on
March 13, and noted in the memorandum Thompson
claims he prepared on February 27, was reduced to $400
when Martin actually applied for the job on March 14. In
the absence of any explanation, the reduction of itself
raises a question, to say the least, whether the offer was
made in good faith. Moreover, the Respondent does not
tell us why Thompson, drawing the March 14 agreement
for Rummel's signature, should append to the terms of
agreement a wholly unrelated paragraph to the effect that
Superior had offered Martin a job at a monthly salary of
$400, and that Martin had replied that he thought he had
another job "lined up...but would contact us at a later
date." In the perspective of the whole record, there is, in
my view, at least as much reason to conclude that the
offer and the relevant entries in the two memoranda were
designed to project a self-serving image of solicitude for
Martin's welfare in order to paper over a discriminatory
attitude toward him as there is to believe that they were
made in good faith. In short, the offer and the entries are
not persuasive support for the Respondent's claim of a
lawful motivation.
In summary, I find, for the reasons stated, that the
Company's motivation for discontinuing used car
appearance reconditioning in its shop, and the related
arrangement for subcontracting such work, was to
terminate Martin's employment, or, in other words, to
discharge him, because he advocated and sought to bring
about union representation of the Company's employees;
and that by discharging him for that reason, it violated
Section 8(a)(3) of the Act, and interfered with, restrained,
and coerced employees in the exercise of rights guaranteed
them by Section 7 of the Act, thus violating Section
8(a)(1) of the statute.10
"In view of the conclusion reached as to the motivation for the
discharge, and in the absence of an allegation that the Respondent's failure
to reemploy Martin thereafter separately violated the Act, I see no need to
determine whether the Company's omission to reemploy him as
"lubrication man" or as a mechanic to fill vacancies that arose after his
discharge was discriminatory , although I note that Ross' testimony would
lead one to believe that Martin was not considered for any opening after
his discharge because he did not present himself to Ross in person for an
interview; and that this explanation appears to me to be niggling and at
least suspect in view of the fact that Ross was aware of Martin's written
application for reemployment , had worked "with" Martin for the
Company for a year, and was undoubtedly familiar with Martin's
capacities, and that Martin had, in fact , applied to Smith in person for the
"lubrication" vacancy (which was filled by transfer of another employee,
Dale French , who had been in the Company 's employ for a much shorter
time than Martin ' s aggregate periods of service). I also note that I base no
findings on testimony by a farmer employee, Lee Sherman, who quotes
Ross as making remarks to employees on more than one occasion after the
March l l meeting to the effect tfiat as a result of the union organizational
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent 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 Company has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend below that the Company cease
and desist from the unfair labor practices found, and take
certain affirmative actions designed to effectuate the
policies of the Act.
In view of the nature of the unfair labor practices
committed, I shall recommend an order below which will
in effect require the Company to refrain in the future
from abridging any of the rights guaranteed employees by
said Section 7."
Having found that the Company's purpose in
discontinuing used car appearance reconditioning in its
shop, and in substituting a subcontracting arrangement for
the performance of such work, was to effect the
termination of Jack A. Martin's employment because he
had engaged in union activities, and that his resulting
discharge violated Section 8(a)(1) and (3) of the Act, I
shall recommend that the Company offer Jack A. Martin
immediate and full reinstatement to his former, or a
substantially equivalent, position,' E without prejudice to his
seniority and other rights and privileges; that to the extent
necessary to effectuate such reinstatement, it resume its
performance of used car appearance reconditioning work
and discontinue any arrangement for the performance of
such work by any other enterprise ;" that the Company
make Jack A. Martin whole for any loss of pay he may
have suffered by reason of his said discharge by payment
to him of a sum of money equal to the amount of wages
he would have earned, but for his discharge, for the period
between the date his employment by the Company ended,
as found above, and the date on which he is offered
reinstatement, as aforesaid, together with interest on said
amount at the rate of 6 percent per annum; and that the
loss of pay and interest thereon be computed in
accordance with the formula and method prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 130 NLRB 716, to
which the parties to this proceeding are expressly referred.
campaign "a lot of heads (would ) roll", and that "a lot of guys (would be)
looking for lobs " On one such occasion , according to Lee, Ross referred
to Martin 's termination . Ross, in substance, denied having any discussions
of unionization with employees beyond telling several individuals, in
response to questions by them, that he was unfamiliar with "the union,"
and that they "would have to make up their own minds" concerning it
While I have some reservation about Ross' credibility in general, Lee's
testimony, in my view , lacks sufficient quality to carry the General
Counsel' s burden of proof on the relevant credibility issue . Lee was vague
in demeanor and manifested some difficulty in recalling what was said,
conceding that "as far as this heads will roll thing . 1 would say they were
my words," and not those of Ross In short, it is difficult to tell, on the
basis of Lee's testimony, how much of what he purportedly quotes is his
interpretation , and how much properly attributable to Ross.
"N.L.R.B. v Entwistle ManufacturingCo., 120 F 2d 532 (C.A. 4).
"In accordance with the Board 's past interpretation , the expression
"former, or a substantially equivalent , position " is intended to mean
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following conclusions of law;
1. Larry Barnes Chevrolet Company is, and has been at
all material times, an employer within the meaning of
Section 2(2) of the Act.
2. Local Lodge No. 1491, International Association of
Machinists and Aerospace Workers, AFL-CIO, is, and
has been at all material times, a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminatorily discontinuing used car
appearance reconditioning work and discharging Jack A.
Martin, as found above, the Company has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By interfering - with, restraining, and coercing
employees in the exercise of rights guaranteed them by
Section 7 of the Act, as found above, the Company has
engaged, and is engaging, in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, I recommend that Larry Barnes Chevrolet
Company, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in
Local Lodge No. 1491, International Association of
Machinists and Aerospace Workers, AFL-CIO, or any
other labor organization, by discharging, or otherwise
denying employment to, any employee, or in any other
manner discriminating against any employee with respect
to hire, tenure of employment, or any term or condition
of employment.
(b) Or in any other manner interfering with, restraining,
or coercing employees in the exercise of any rights
guaranteed them by Section 7 of the said Act.
2. Take the following affirmative actions which, I find,
will effectuate the policies of the Act.
(a) Offer Jack A. Martin immediate and full
reinstatement to his former, or a substantially equivalent,
position, without prejudice to his seniority and other rights
and privileges, taking all necessary steps to effect such
reinstatement, as provided in section V, above, entitled
"The Remedy" and make him whole according to the
formula and method specified in said section V
"former position wherever possible , but if such position is no longer in
existence, then to a substantially equivalent position ." Chase National
Bank of the City of New York, 65 NLRB 827
"In view of the Respondent' s unlawful purpose in substituting a
subcontracting arrangement for performance of the appearance
reconditioning work by Martin , it matters not that the Respondent may
find the substituted arrangement more efficient or economical . To "farm
out" the work in order to rid the Company of a union activist is not
significantly different from replacing him with another employee for the
same end . The requirement that the Respondent resume the work to the
extent necessary to effectuate Martin's reinstatement is amply warranted
Fibreboard Paper Products Corporation v. N L.R.B., 379 U.S 203,
215-216; A-1 Excelsior Van & Storage Co., 165 NLRB No 45, and cases
cited fn 9
LARRY BARNES CHEVROLET CO. 823
(b) Preserve until compliance with any order for
reinstatement or back pay made by the National Labor
Relations Board in this proceeding is effectuated, and
make available to the said Board and its agents, upon
request, for examination and copying, all payroll records,
social security records, timecards, and personnel records,
which may be relevant to a determination of the amount
of back pay due, and to the reinstatement and related
rights provided in any such order.
(c) Notify Jack A. Martin, in the event he is now
serving in the Armed Forces of the United States, of his
right to full reinstatement, upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(d) Post in conspicuous places at the Company's place
of business in Boise, Idaho, including all places where
notices to employees are customarily posted, copies of the
notice attached hereto. Copies of the said notice, to be
furnished by the Regional Director for Region 19 of the
National Labor Relations Board, shall, after being duly
signed by an authorized representative of the Company,
be posted by it immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter in such
conspicuous places. Reasonable steps shall be taken by the
said Company to insure that said notices are not covered,
altered, or defaced by any other material. "
(e) Notify the said Regional Director, in writing, within
20 days from the date of receipt of a copy of this
Decision, what steps the Respondent has taken to comply
therewith.'s
In the event that this Recommended Order is adopted by the National
Labor Relations Board, the words "a Decision and Order" shall be
substituted for the words "the Recommended Order of a Trial Examiner"
in the notice . In the additional event that the Board 's order is enforced by
a decree of the United States Court of Appeals , "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
paragraph 2(e) thereof shall be modified to read : "Notify the said Regional
Director , in writing, within 10 days from the date of this order , what steps
the Respondent has taken to comply therewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership of any of our
employees in Local Lodge No. 1491, International
Association of Machinists and Aerospace Workers,
AFL-CIO, or in any other labor organization, by
discharging , or otherwise denying employment to, any
employee, or in any other manner discriminating
against any employee in regard to his hire, tenure of
employment, or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain,
or coerce employees in the exercise of their right to
self-organization; to form, join, or assist any labor
organization; to bargain collectively through
representatives of their own choosing; to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or to
refrain from any or all such activities.
WE WILL offer Jack A. Martin immediate and full
reinstatement to his former, or a substantially
equivalent, position, without prejudice to his seniority
and other rights and privileges, and reimburse him for
any loss of pay he may have suffered by reason of our
discrimination against him, together with interest on
such sum.
WE WILL notify the said Jack A Martin, if presently
serving in the Armed Forces of the United States, of
his right to full reinstatement upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
All our employees are free to join, and remain
members of, any union of their choice.
Dated By
LARRY BARNES
CHEVROLET COMPANY
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington 98101,
Telephone 583-4532.