Larry Barnes Chevrolet Co., Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1974

212 N.L.R.B. 663 (N.L.R.B. 1974)

LARRY BARNES CHEVROLET 663
Larry Barnes Chevrolet Co., Inc. and Retail Store Em-
ployees Union Local No. 1614, Retail Clerks Inter-
national Association , AFL-CIO. Case 19-CA-6765
_ , July 31, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On May 3, 1974, Administrative Law Judge James
S. Jenson issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent , Larry Barnes Chevrolet Co.,
Inc., Boise , Idaho, its officers , agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
complaint, which issued on January 10, 1974, pursuant to
a charge filed on November 30, 1973, alleges that William
L. Killian was terminated on November 23, 1973, because
of his activities on behalf of the charging party in violation
of Section 8(a)(3) and (1) of the Act. On January 21, 1974,
Respondent filed an answer admitting the procedural and
jurisdictional allegations of the complaint but denying that
Killian was terminated for the reason alleged. Respondent's
answer alleges that Killian has been offered reinstatement
and that Respondent would be pleased to have him return
to his former position. All parties were afforded full oppor-
tunity to appear, to introduce evidence, to examine and
cross-examine witnesses, to argue orally, and to file briefs.
A brief was filed by Respondent and has been carefully
considered.
Upon the entire record in the case, and from my observa-
tions of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I JURISDICTION
Respondent, a corporation, is engaged in new and used
car sales in Boise, Idaho. Respondent's volume of sales and
services annually exceeds $500,000 and the total amount of
its purchases of goods and materials originating outside the
state of Idaho annually exceeds $50,000. Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union Local No. 1614 , Retail
Clerks International Association , AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C A. 3, 1951) We have carefully examined the record
and find no basis for reversing his findings
2 Respondent contends that on November 16, 1973, Killian notified his
supervisor that he was leaving Larry Barnes Chevrolet Co, Inc., on Novem-
ber 30, 1973, and that backpay, if any, should be limited to the week during
which Killian would have remained an employee of Respondent , had he not
been prematurely terminated . While the Administrative Law Judge fails
specifically to resolve the question of whether Killian had in fact given
definite notice of intent to quit and , if so, when he intended to leave, there
is insufficient evidence in the record to support Respondent 's contention that
Killian in fact gave notice to quit effective November 30, 1973
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON , Administrative Law Judge : This case was
tried before me in Boise , Idaho, on March 7, 1974. The
A. Chronology of Events
William L. Killian was hired by Respondent on or about
June 23, 1973.1 He immediately commenced a 60-day train-
ing program with a monthly guaranteed salary. Sometime
during his second month of training, and while working on
the used car lot, Killian turned in his demonstrator and quit
his employment because of a misunderstanding over the
amount of commissions he was to receive. Boyd Larsen,
Respondent's training manager, prevailed upon Killian to
return, at which time he was transferred to the new truck
sales department. In September, Killian was the top-pro-
ducing salesman among the Respondent's approximately 42
salesmen, and was declared "Salesman of the Month" for
which he received a plaque to commemorate the event.
While working in truck sales, Killian was given the use of
a new demonstrator pickup truck. On November 16, Killian
observed a man from the new car get-ready department
removing the hubcaps from his demonstrator. Killian testi-
1 All dates herein are in 1973 unless otherwise stated.
212 NLRB No. I I I
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled that since management checks the condition of the
vehicles periodically, and as he was responsible for the pick-
up, he approached the man removing the hubcaps and re-
placing them with a "lesser-attractive-type" and asked,
"What in the Hell are you doing?" He was informed that the
hubcaps were needed for another vehicle that had been sold.
Killian then went to New Car Get-Ready Manager Grant
Dewey and learned that New Car and Truck Manager
James E. Drechsel had authorized their removal. Killian
discussed the matter with Drechsel and, being upset over the
matter, told Drechsel that he felt he should look for another
job. Killian testified that Drechsel replied that: "You are
free to stay with Larry Barnes until such time that you find
other employment " Drechsel testified that Killian in-
formed him that he, Killian was unhappy, and that he want-
ed to quit within the next few weeks, probably to go into real
estate, to which Drechsel responded that the company had
spent a lot of time and effort on him "and really didn't want
to see him go because they felt he had good potential of
being a real good salesman because he had the drive, he had
the capability. But, I had not . . . tried to talk him into it
or out of it because he had already stated that he would like
to leave and was leaving." 2
On November 20, Killian contacted the Union by tele-
phone and made an appointment to meet with a union
representative the following morning at 10 a.m. On Novem-
ber 21 he met with Union Representatives Moore and
Kerns for the purpose of learning what he needed to do to
organize Respondent' s salesmen . He was told that he should
poll the employees, and if a majority were interested, a
meeting could be arranged. The meeting with the union
representatives lasted from one-half to three-quarters of an
hour. At its conclusion, Killian went to Respondent's place
of business and told Truck Salesmen Lawrence Musgrove
and Paul Sackron about his meeting with the union officials.
He also contacted a number of the salesmen on the sales-
room floor and asked them if they were interested in joining
the Retail Clerk's Union.
The Respondent's business was closed on November 22,
Thanksgiving Day. On the morning of November 23, Killi-
an reported for work at 8 a.m. About 9:30, while he, Mus-
grove, and Sackron were in the truck department office,
Drechsel called and asked that Killian report to his office
immediately. The following is Killian's testimony regarding
his conversation with Drechsel: "Well, Mr. Drechsel
opened the conversation by saying that it had been brought
to his attention that morning at a breakfast meeting attend-
ed by members of management that I had been talking with
salesmen about the possibility of organizing a union and
that such activities would not be tolerated. It was also men-
tioned that I had spoken with two service technicians,
meaning the mechanics there, about the possibility of their
joining the Union, or the possibility of talking about it,
anyway. Subsequent to that I was told I had two days to
clean up my things and . . . leave the employment." 3 Upon
2 In view of Drechsel 's testimony that Killian was capable and had drive
and the potential of being "a real good salesman ," I credit Killian's testimony
his return to the truck department office, Killian told Mus-
grove and Sackron that he had been "fired for his union
organizing." Shortly thereafter, Drechsel called Sackron
and asked that Sackron report to his office. On his way over,
Sackron met Larry Barnes, Respondent's president, who
commented "that he felt bad about having to let Killian go,
but he just wasn't working out." Sackron asked if the dis-
charge "had anything to do with the union thing," to which
Barnes replied: "No, that doesn't bother me ... I've been
faced with that problem before." After arriving at
Drechsel's office, Sackron was informed that Killian had
been terminated. Sackron asked if it was "for trying to
organize a union," to which Drechsel replied: "No . . . it
was for low production, failure to get along with some of the
other salesmen and that some of the people in the Get-
Ready Department . . . weren't too pleased with his atti-
tude . . . Besides that, he already more or less terminated
himself . . . he wanted to . . . quit." Drechsel told Mus-
grove that Killian had been terminated because of "his low
productivity and inability to get along with his fellow sales-
men."
B. Respondent's Defenses
Respondent contends that on November 16, Killian noti-
fied Drechsel he was leaving Respondent's employ on No-
vember 30, and that Respondent decided to terminate the
employment relationship on November 23, following a
management meeting that morning, because of his low pro-
ductivity and problems with the new car get-ready depart-
ment. Regarding the management meeting, and the reason
for terminating Killian, Drechsel testified: "Well, it was
brought to my attention from New Car Get-Ready from
Grant Dewey that he had been presenting quite a problem
out there and trying to push new units ahead of the other
salesmen, which we probably serviced 8, 9, 10 cars a day on
a sold-unit basis and they go according to when they go out.
I do sign work orders when they go out, so this is where we
got a big report on how much trouble he was causing and
just trying to push other units ahead. From that factor there
and the determining factor that his productivity was down
and problems we had had with him that it was decided that
morning under the management that we ought tojust termi-
nate him earlier than when he wanted to quit."
1. Killian 's low productivity
Drechsel testified: "Bill Killian started out real well in the
Truck Department. He had done a good job; he had made
salesman of the month in one month, which was in Septem-
ber . . . from that standpoint there he hadjust started going
downhill and of course, I corresponded with Bill, talked
with him on his sales and so forth." To support the conten-
tion that Killian's production was down, Respondent intro-
duced a document (Resp. Exh. 3) purporting to be a record
of Killian's earnings during his employment. It shows that
in June ° he received $250 as guaranteed salary; in July he
received $600, of which $387 60 was from commissions on
that Drechsel informed him that he could stay with the Company until he had told Drechsel that Killian had spoken to the two mechanics about the
found other employment possibility of organizing them Rhodes was not called as a witness
3 Killian testified Drechsel told him that Service Manager Steve Rhodes 4 Killian commenced June 23
LARRY BARNES CHEVROLET 665
one new car, three used cars, and one truck , $6 were from
"spiffs," and $206.40 represented guaranteed salary; In Au-
gust he received $600, of which $443.60 was commissions on
the sale of three new trucks, $27 from "spiffs," and $129.40
was guaranteed salary; in September he received $806.92 in
commissions and a bonus on the sale of seven and one-half
new trucks and one new car and $3.75 from "spiffs," for a
total of $870 .67;5 in October he received $711.11, of which
$681.61 represented commissions from the sale of four new
trucks, one used truck and one -half used car and $29.50
from "spiffs;" in November he received $262.37 repre-
senting one-third of nine deals which were for eight new
trucks and one new car , and $35.33 from "spiffs," for a total
of $297.70. Drechsel admitted that in November, with
Respondent 's approval, Killian , Sackron and Musgrove had
agreed to pool their sales and divide their commissions three
ways, and that he had no way of knowing how many of the
November sales had been made by Killian since all sales
were made in Sackron's name. Drechsel further admitted
that Respondent's Exhibit 3 did not reflect the fact that in
November, Killian had placed special orders with the facto-
ry for eight trucks that were to be delivered within the next
few months .' Sackron also testified business conditions in
October and November were difficult because of the short-
age of desirable vehicles, and as a consequence the salesmen
were usually dealing in "futures," or factory orders for fu-
ture delivery . He also testified that if trucks had been avail-
able, "We could all have sold more ." While Drechsel
testified that it was not Respondent 's practice to keep sales-
men whose sales dropped as had Killian 's, he also testified
that there were other salesmen whose sales dropped simi-
larly. No evidence was elicited , however, that any other
salesmen were similarly terminated.
2. Killian's new car get-ready problems
Grant Dewey, the new car get-ready manager, testified
that after a sale is made he receives a work order and it is
the duty of his department to put the vehicle in condition
for delivery. He testified that shortly before November 23
"there were two units that he (Killian) seemed to be particu-
larly interested in and gave us a big hassle about getting
them completed , even though we had a considerable num-
ber of other work orders to get out . I reported these things
to my supervisor ." He testified that there were no harsh
words over the matter , but that Killian "pressured him" to
get the two units out. The pressure , he testified, consisted of
"things like `I have to have this by tonight.' " He admitted
that other salesmen also encouraged him to get units out
faster, "but without this pressure ." Sackron testified that he
usually asked Dewey to expedite an order, that all salesmen
like to get them done immediately , and "we all ask for the
same thing . . . he gives it to us, if he can." He also testified
that he occasionally "pressured" Dewey about getting a unit
5 Kilhan was the leading producer among the Respondent's approximately
42 salesmen and was awarded a "Salesman of the Month" plaque
6 Drechsel testified that June , July, August , and September were the best
months in the automobile business , and that during the months of October
and November, when the model changes occur , there is a problem regarding
the availability of trucks which makes it necessary for salesmen to "special
order" from the factory for "future delivery "
out, by being "more insistent than normal," such as saying
"I need it desperately." Sackron has never been called down
for "pressuring" Dewey.'
3. Killian 's inability to get along with the other salesmen
While Respondent does not contend in its brief that one
of the reasons Killian was terminated was his inability to get
along with his fellow salesmen, both Sackron and Musgrove
testified that this was one of the reasons Drechsel had given
them for his termination . On the basis of the testimony of
Jack Gisler , a witness called by Respondent , that Killian
"seemed to be a personable guy with a good personality"
and got along well with his fellow salesmen, and the testimo-
ny of Sackron that Killian got along with others "Fairly
well. He organized a basketball team and about nine or ten
guys played with him. They couldn't have hated him too
much," I conclude Respondent has failed to establish as a
fact that Killian 's inability to get along with his fellow sales-
men had anything to do with his termination.
Analysis
Respondent 's contention that there is an absence of affir-
mative evidence of antiunion hostility and a discriminatory
motivation , and its reliance on John L. Donnelly, Sr., et al.,
d/b/a Shelby Liquors, 208 NLRB No. 132, is without merit.
Killian , who impressed me as a forthright and honest wit-
ness, testified convincingly that Drechsel told him on the
morning of November 23 that he had learned that morning
at the breakfast meeting that Kilhan had been talking to the
salesmen and mechanics about the possibilities of organiz-
ing, and that "such activities would not be tolerated," fol-
lowed by a notice to clean up his business within 2 days.
Drechsel, on the other hand, did not specifically deny
Killian's testimony , nor did Respondent call any witnesses
who testified convincingly in support of its position. Dre-
chsel testified that on November 16, a week before Killian's
termination , he told Killian, "We spent a lot of time and
effort with him and really didn't want to see him go , because
I felt he had a good potential of being a real good salesman,
because he had the drive, he had the capability." What,
then , happened within the last week of Killian 's employ-
ment that led to Killian's termination ? The lack of his abili-
ty to get along with his fellow employees is, I find, wholly
without merit . Further, Respondent's "low-productivity"
defense is clearly lacking in substance .,It is beyond question
that in September Killian was the top producer among all
of Respondent's salesmen.
While his October earnings were down approximately
$170 from his September earnings, there was a valid reason
in that there was a shortage of vehicles due to the model
changeover . Moreover, Respondent failed to show that
Killian's production fell off more, or was any lower, than
that of any other salesmen. Further- undermining
Respondent's defense is the fact that Drechsel admitted he
did not know how many units Killian was responsible for
selling in November since Killian, Sackron , and Musgrove
7 Dewey's manner of testifying convinced me that he was coloring his
testimony so that it would be favorable to his employer
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were pooling their sales. Moreover, Killian had sold approx-
imately eight trucks in November for future delivery which
are not reflected in Respondent's Exhibit 3. 1 find, therefore,
that Respondent's Exhibit 3 is not an accurate reflection of
Killian's sales for November, which casts further doubt
upon the validity of Respondent's defenses.
Respondent's defense based on Killian's "problems" with
the new car get-ready department, also lacks the ring of
truth. While Dewey attempted to create the impression that
Killian had exerted "undue pressure" on him by stating "I
have to have this (out) by tonight," the record is clear that
other salesmen also encouraged him to get their units out
faster, that it was usual for Sackron to ask Dewey to exped-
ite an order, including more insistence than normal, such as
saying "I need it desperately." Sackron, as the evidence
disclosed, was never reprimanded or called down for so
pressuring Dewey.
On the basis of all the foregoing, I conclude and find that
the reasons Respondent advanced for Killian's termination
were mere pretexts, and that the General Counsel has estab-
lished by a preponderance of the evidence that the real
reason and moving cause behind Killian's termination was
his efforts to organize Respondent's employees and that the
termination constituted discnmination to discourage union
activity in violation of Section 8(a)(3) and (1) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with the operations of Re-
spondent as described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
to the Board, upon request, all payroll and other records to
facilitate checking the amount of earnings due.
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of the employees'
rights safeguarded by the Act, I shall recommend that it
cease and desist from infringing in any manner upon the
rights guaranteed by Section 7 of the Act.
CONCLUSIONS OF LAW
On the basis of the foregoing findings of fact, and the
entire record in this proceeding, I make the following con-
clusions of law:
1. Respondent is, and has been at all material times, an
employer within the meaning of Section 2(2) of the Act.
2. Retail Store Employees Union Local No. 1614, Retail
Clerks International Association, AFL-CIO, is and has
been at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminating against William L Killian, as found
above, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
4. By interfering with, restraining, and coercing employ-
ees in the exercise of rights guaranteed them by Section 7
of the Act, Respondent has engaged in unfair labor practic-
es within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid violations are unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and
(7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDERS
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged William L. Killian on November 23, I shall rec-
ommend that Respondent make Killian whole for any loss
of pay he may have suffered by reason of the discrimination
against him. Said loss of pay shall be based on the earnings
he would normally have earned from the date of discharge
until January 9, 1974, less the net earnings during such
periods Said backpay shall be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. The interest on back-
pay shall be computed in the manner set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716.
It is also recommended that Respondent make available
It is recommended that Larry Barnes Chevrolet Co., Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off or otherwise discriminating
against employees for engaging in union or concerted, pro-
tected activities.
(b) In any other manner interfering with, restraining, or
coercing employees in the right to self-organization, to form
labor organizations, to join or assist any 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, or to refrain from any or all of such activities.
2. Take the following affirmative action:
(a) Make William L. Killian whole, as set forth in the
Remedy section above, for any loss of earnings suffered as
a result of the discrimination against him.
(b) Preserve, and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
9 In the event no exceptions are filed as provided by Section 102 46 of the
By letter dated January 3, 1974, Respondent offered to reinstate Killian Rules and Regulations of the National Labor Relations Board , the findings,
and to hold his position open until January 14 By letter dated January 8, conclusions, and recommended Order herein shall, as provided in Section
Killian notified Respondent that he had accepted another job commencing 102 48 of the Rules and Regulations , be adopted by the Board and become
on January 9, 1974 , and was, therefore , not interested in returning to work its findings, conclusions , and Order , and all objections thereto shall be
for Respondent deemed waived for all purposes
LARRY BARNES CHEVROLET 667
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze and determine the amount of backpay due, under
the terms of this recommended Order.
(d) Post in conspicuous places at its place of business in
Boise, Idaho, including all places where notices to employ-
ees are customarily posted, copies of the notice attached
hereto marked "Appendix." 10 Copies of said notice on
forms provided by the Regional Director for Region 19,
after being duly signed by an authorized representative of
Respondent, shall be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of receipt of this Order,
what steps Respondent has taken to comply herewith.
10 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities.
In recognition of these rights, we hereby notify our em-
ployees that:
WE WILL NOT discharge, lay off, or in any other way
discriminate against any of our employees because of
their activities in behalf of Retail Store Employees Lo-
cal No. 1614, Retail Clerks International Association,
AFL-CIO, or any other labor organization. We have
offered William L. Killian reinstatement to the position
he held at the time of his discharge, which offer was
declined. WE WILL make him whole for any loss of pay
suffered because of his discharge.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of any right
guaranteed them by the Act.
LARRY BARNES CHEVROLET CO.,
INC
(Employer)
Dated By
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Tenth Floor-Republic Building,
1511 Third Avenue, Seattle, Washington 98101, Telephone
206-442-7542.