Melody Oldsmobile - GMC, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1977

230 N.L.R.B. 440 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Melody Oldsmobile - GMC, Inc. and American
Federation of Professional Salesmen. Cases 13-
CA-14896 and 13-CA-14954
June 24, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On March 28, 1977, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of the Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings,
findings,' and conclusions2 of the Administrative
Law Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Melody Oldsmobile - GMC, Inc., Cedar Lake,
Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph l(c):
"(c) Refusing to refer to salesmen in an evenhand-
ed manner information calls from prospective cus-
tomers because they engage in union activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent asserts that the Administrative Law Judge's resolutions of
credibility, findings of fact, and conclusions of law are the result of bias, and
otherwise excepts to certain credibility findings made by the Administrative
Law Judge. After a careful examination of the entire record, we are satisfied
that the allegation of bias is without merit. There is no basis for finding that
bias and partiality existed merely because the Administrative Law Judge
resolved important factual conflicts in favor of the General Counsers
witnesses. As the Supreme Court stated in N.L.R.B. v. Pittsburgh Steamship
Company, 337 U.S. 656, 659 (1949), "IT)otal rejection of an opposed view
cannot of itself impugn the integrity or competence of a trier of fact."
Furthermore, 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
(1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We find no basis for reversing his
findings.
We fully agree with the Administrative Law Judge, for the reasons stated
in his Decision, that employee Behrens' illegal disconnection of the
230 NLRB No. 63
odometer on his demonstrator car served only as a pretext for discharging
him in retaliation for his support of the Union.
2 In his Conclusion of Law 3(a), the Administrative Law Judge
inadvertently placed Sales Manager Leonard Van Vessen's implicit threat
that he would discharge any salesman he heard was involved in union
activity as occurring in early November 1975. In accordance with the
Administrative Law Judge's own factual finding and the evidence in the
record, we hereby correct the time of the threat to October 1975.
3 Par. l(c) of the recommended Order requires Respondent to cease and
desist from "Refusing to refer to salesmen in an evenhanded manner
information calls from prospective customers," without adding the qualifi-
cation "because they engage in union activities." Accordingly, we shall
modify the Order in this respect.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with dis-
charge or other reprisals because they engage in
union activities.
WE WILL NOT discharge or otherwise discrimi-
nate against employees because they engage in
union activities.
WE WILL NOT refuse to refer to salesmen in an
evenhanded manner information calls from pro-
spective customers because they engage in union
activities.
WE WILL NOT subject salesmen to the threat of
discharge for failing to meet sales quotas because
they engage in union activities.
WE WILL NOT announce the abolition of sales
bonuses because salesmen engage in union
activities.
WE WILL NOT forbid a reasonable number of
personal telephone calls to or from salesmen
because they engage in union activities.
WE WILL NOT prohibit salesmen from taking
their meals together because they engage in union
activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them under Section 7 of the
National Labor Relations Act.
WE WILL offer to Richard Behrens immediate
and full reinstatement to his former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and
reimburse him for any loss of earnings he
incurred as a result of our discriminatory dis-
charge of him.
MELODY OLSDMOBILE-
GMC, INC.
440
MELODY OLDSMOBILE - GMC, INC.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: This
case involves automobile salesmen at a car dealership. The
issues are whether the dealer made threatening statements,
questioned a salesman, discharged another, and imposed
new restrictions and requirements on others for the
purpose of squelching their union organizing. As set out
hereinafter, I find the employer did unlawfully discriminate
against one salesman and interfered with the protected
rights of all salesmen in a number of ways.
These proceedings originated with unfair labor practice
charges filed November 21, and December 9, 1975,1 and
amended January 5, 1976, by the American Federation of
Professional Salesmen (herein the Union) against Melody
Oldsmobile - GMC, Inc. (herein Respondent). A com-
plaint based on these charges issued February 6, 1976,
alleging that Respondent had engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended (herein the
Act). At the commencement of the hearing herein, the
complaint was amended to allege additional violations of
Section 8(a)(1). Respondent answered the complaint,
including the amendment, denying the commission of
unfair labor practices. The issues posed are whether
Respondent unlawfully threatened salesmen with discharge
or other reprisals for engaging in union activity, discontin-
ued evenhanded referral to salesmen of inquiry calls,
coercively interrogated a salesman about union organiza-
tional activity and promised him benefits if he would favor
Respondent rather than a union, unlawfully imposed sales
quotas on the salesmen, denied them the use of dealership
telephones for personal calls, and forbade them to have
their own telephone line on the premises; and whether
Respondent discharged salesman Richard Behrens because
of his union activity or because he disconnected the
odometer cable on his demonstrator. Further issues raised
at the hearing are whether Respondent unlawfully an-
nounced the abolition of sales bonuses, forbade salesmen
congregating on the sales floor, and banned their taking
meals together. These matters were heard before me at
Chicago, Illinois, on May 17 and 18 and September 13,
1976.
Based on the entire record,2 including my observation of
the witnesses and consideration of the briefs filed by the
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. THE EMPLOYER INVOLVED
As its names implies, Respondent is an Oldsmobile
automobile and GMC truck dealer. It is a corporation
engaged at Cedar Lake, Indiana, in the retail sale and
service of new and used automobiles and trucks. During
the calendar year preceding issuance of the complaint, a
period representative of its operations, Respondent's gross
revenue exceeded $500,000. During the same period it
All dates herein are in 1975 unless otherwise indicated.
2 The record includes, inter alia, Resp. Exhs. I and 3 supplied after the
close of the hearing.
purchased and received goods valued in excess of $50,000
directly from outside Indiana. The complaint alleges, the
answer admits, and I find, that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Certain of Respondent's officials figure in the events
involved in this case. These are Samuel McIntyre, its
president, William Ogborn, its sales manager from about
September 1974 until April 1975, and Leonard Van Vessen,
its sales manager since July 5, 1975.
II. THE LABOR OROANIZATION INVOLVED
The complaint alleges, the Union admits, the record
evidence shows, and I find, that the Union (the Charging
Party here) is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union Activity and the Representation
Proceeding
On October 27 three of Respondent's salesmen (George
Adams, Richard Behrens, and James Cigalina) signed
applications for membership in the Union authorizing it to
represent them in collective bargaining respecting wages,
hours, and other conditions of employment. The next day
the Union mailed to Respondent a letter (which Respon-
dent received October 29) claiming to represent a majority
of Respondent's salesmen, requesting that it recognize and
bargain with the Union as the exclusive representative of
all the salesmen. The Union enclosed copies of the three
authorizations and also a copy of a representation petition
which it later filed with the Board on October 29 (Case 13-
RC-13875) seeking certification as the representative of the
salesmen. The letter suggested that the petition would be
withdrawn if Respondent voluntarily recognized the
Union.
Respondent did not voluntarily recognize the Union, but
on November 21, with the Union, signed a Stipulation for
Certification Upon Consent Election agreeing to a Board
election to be held December 5 in a unit consisting of all
new and used automobile and truck salesmen, but
excluding office and plant clericals, automobile mechanics,
semi-skilled employees, parts department employees,
guards and supervisors as defined in the Act.
As stipulated, the election was conducted on December
5. Of six eligible voters, three voted for the Union, one
voted against the Union, and two ballots were challenged.
One of the challenged ballots was that of Richard Behrens,
the alleged discriminatee in the present matter. On
December 31 the Board's Regional Director for Region 13
issued his report on challenges in which he sustained the
challenge to the other challenged ballot which had been
cast by Willard Rice. Without resolving the Behrens
challenge, the Director concluded that the Union necessar-
ily had received a majority of the valid votes and
recommended it be certified. On January 30, 1976, the
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board sustained the Regional Director's findings and
certified the Union.
B. The October Threat
The General Counsel contends that in late October
Respondent's then Sales Manager Leonard Van Vessen in
effect threatened the salesmen with discharge if they
became involved with a union.
In support of this contention James Cigalina, an ex-
salesman for Respondent, testified that a week or 10 days
prior to the October 27 card signing he and Dave Barnett,
another salesman then working for Respondent, were
conversing on the sales floor on how to organize a union.
According to Cigalina, Barnett was telling him about union
organizing at other dealerships and about whom to contact
for information regarding the Union. At about that point
Van Vessen walked up and said, "The first thing I hear
about anything about a union, I'll blow the first man out
the door."
Although Cigalina did not impress me as being a
particularly reliable witness, I credit his account and find
that Van Vessen made the statement attributed to him.
Barnett did not testify, so the record is without the benefit
of his version. Although there is no explanation as to why
he did not testify, I draw no inference therefrom because at
the time of the hearing he was no longer employed with
Respondent and it is not apparent that he was within the
control of any party. Behrens corroborates Cigalina to the
extent that Van Vessen made such a statement. I rely in
part on this corroboration in crediting Cigalina even
though Behrens' testimony impressed me as somewhat
overreaching and even though Cigalina, who testified first,
did not place Behrens at the conversation. The latter
inconsistency does not seem crucial because of the
substantial lapse of time since the incident and because it
was normal for salesmen like Behrens to be around the
showroom floor. Finally, I rely on the fact that Van Vessen
did not specifically deny the incident.
Having found that Van Vessen made the statement at a
time when he was sales manager, I further find that his
statement, which is attributable to Respondent, interfered
with and coerced the salesmen (who were employees) in the
exercise of rights guaranteed them under Section 7 of the
Act and was, therefore, an unfair labor practice within the
meaning of Section 8(a)(1) of the Act. This incident further
establishes employer knowledge of union activity in or
about the third week of October and also tends to show
managerial antipathy toward union organizing.
C. The Discontinuance of "Phone-Ups"
Respondent, like most automotive dealers, often receives
telephonic inquiries from the general public seeking
information about automobiles, prices, and the like. Such
inquiries, which are not directed by the caller to any
particular salesman, are known as "phone-ups" and in the
past were automatically referred to salesmen on a rotating
basis. These "phone-ups" in some instances lead to sales
and are a valuable means of contacting prospective buyers.
3 Cigalina's resignation is not alleged to have resulted from discrimina-
tion.
The General Counsel contends that beginning about
November 1, shortly after Respondent learned that Adams,
Behrens, and Cigalina had signed union cards, it discontin-
ued the practice of referring such calls by rotation.
There is no dispute as to what the established practice
was respecting "phone-ups." Respondent contends that no
change occurred in that practice. In support of this position
McIntyre testified that company policy never changed. I
do not credit his testimony in this respect.
Based on the testimony of Cigalina and Behrens, I find
that immediately following the deliver of the copies of the
signed union cards to Respondent, those salesmen who had
signed cards (Adams, Behrens, and Cigalina) no longer
received "phone-up" referrals, although the other salesmen
did.
In resolving this credibility conflict in favor of the
salesmen and against management, I rely on the corrobora-
tive aspects of the testimony of Cigalina and Behrens. In
addition, on or about December 17 or 18, Cigalina
protested to Sales Manager Van Vessen about what he
described as the systematic screening of incoming tele-
phone calls which resulted in Cigalina not receiving some
personal calls as well as not being referred his share of the
"phone-ups." In answer Van Vessen said, "You knew what
you got into when you did that." Cigalina agreed that he
did. He then asked Van Vessen's opinion as to whether he
should quit or not, noting that he had already spoken to
other automotive dealers. According to him, Van Vessen
replied, "I can't tell you. You know Sam (McIntyre) will
get you sooner or later." According to Cigalina, he then
said, "I can't work under this pressure. I can't follow up on
my leads. I quit."3
I credit Cigalina's account. It is specific. It involved an
occasion which he was likely to remember. Although Van
Vessen testified extensively, he denied only parts of the
conversation. In his testimony he denied that about the end
of October or at a later time he told salesmen, "Sam
(McIntyre) was going to get them."
Based on the foregoing, I find that Respondent's
management denied the union supporters their normal
share of referred "phone-ups" following Respondent's
knowledge that three salesmen had signed union cards. I
further find that such conduct interfered with the sales-
men's Section 7 rights and constituted an unfair labor
practice within the meaning of Section 8(a)(1) of the Act.
D. The Interrogation and the Loan
The General Counsel also contends that McIntyre
unlawfully interrogated Cigalina and promised him bene-
fits if he would favor Respondent over the Union. This is
supposed to have occurred in mid-November.
As already noted, the three salesmen who signed union
applications did so on October 27. Cigalina testified that 2
or 3 days thereafter he asked McIntyre for a loan of $750
which he needed in connection with his purchase of a
house. McIntyre told him he could not loan him the money
through the Company but that he could arrange for him to
borrow from a bank. According to Cigalina, McIntyre said,
442
MELODY OLDSMOBILE - GMC, INC.
"I do this for people who are for the Company." He then
asked, "You're for the Company?" Cigalina replied, "Yes."
During the same conversation McIntyre inquired, accord-
ing to Cigalina, "Do you know anything about the Union?"
Cigalina replied, "No."
Mcintyre at that time telephoned the bank and made the
arrangements for a loan to Cigalina who then went to the
bank and obtained the money.
In his testimony, McIntyre places the request for a loan
about October 20, prior to the time of union card signing.
He agreed that he told Cigalina the Company could not
lend him the money and he also agreed that he telephoned
a local bank where he sat on the board of directors and
made arrangements for Cigalina to borrow the money. He
denied, however, placing any conditions on the loan, such
as that Cigalina favor the Company, and he also denied
that he asked whether he was for the Company. According
to McIntyre, the Union was not mentioned.
Regarding this incident, I credit McIntyre rather than
Cigalina. I reach this resolution because I think Cigalina
erroneously placed the time 2 to 3 days after October 27.
By then, Mcintyre knew who the union supporters were
and it is unlikely he would at that point have asked him if
he knew anything about the Union or made inquiries for
the purpose of learning whether he favored the Company
over the Union. Moreover, bank records place the time of
the loan application as October 20. For these reasons, I
find that the credible evidence fails to establish that such
inquiries were made or that Mcintyre either specifically or
by implication placed conditions on the arrangements for
the loan. Accordingly, the allegations of the complaint
directed to the conversation to arrange the loan should be
dismissed.
E. The Discharge of Richard Behrens
1. The issue
Richard Behrens was hired by Respondent as a salesman
in April 1974 and continued in that capacity until his
discharge on November 17, 1975. The General Counsel
contends he was discharged because he was a known
supporter of the Union. Respondent contends it was
because he flouted company policy, as well as federal law,
forbidding the disconnecting of odometers on demonstra-
tors assigned to him.
2. Behrens' union activity
As already noted, Adams, Behrens, and Cigalina signed
union cards on October 27 and the Union immediately
forwarded copies to Respondent along with its request for
recognition. Thus, as of October 29, Respondent had
knowledge that Behrens and the other two salesmen were
union supporters.
Sales Manager Van Vessen forthrightly admitted during
his testimony that Mcintyre, Respondent's president, was
upset by the fact that the Union was trying to organize his
salesmen. This presumably occurred on the occasion of
I The words attributed to Mcintyre appear in the transcript at pp. 98 and
165-166.
McIntyre showing Van Vessen the copies of the union
authorizations he had received from the Union.
Three or four days after the authorizations were signed
(which would put it around November 1) during a
conversation on the sales floor among Behrens, Cigalina,
and Van Vessen, Behrens asked Van Vessen his opinion as
to whether the Union was a good idea. In reply Van Vessen
offered his opinion that the salesmen had made a bad
mistake, that they should never have done it. Behrens and
Cigalina corroborate each other that on another occasion
about a week or two after they had signed their authoriza-
tions to the Union, Mcintyre approached them on the sales
floor and in emphatic and obscene terms informed them
that union representation would not change things for
them.4
Around the same time, Cigalina inquired of Van Vessen
whether there were going to be any changes. The sales
manager replied, "Well, you know that you guys went
against Sam (McIntyre) and he will get you sooner or later,
its just a matter of time." Van Vessen again said
substantially the same thing to Cigalina 3 or 4 weeks later.
And on December 17 or 18, the day Cigalina quit in
protest, Van Vessen in substance told him, as already
noted, that the salesmen knew what they were getting into,
and that those that signed the union authorizations were
going to be weeded out sooner or later.
Van Vessen denied generally that he had ever talked to
Cigalina on the subject of salesmen signing the union
authorizations or that he ever indicated to Cigalina that
McIntyre was unhappy about the salesmen signing union
authorizations. I do not credit these denials because the
general chronology of events is consistent with, and tends
to support, Cigalina's account, because the record supports
the conclusion that a friendly relationship existed between
the sales manager and the salesmen, and because McIntyre
admittedly was unhappy about the union organizing.
From the above, it is apparent that Respondent's
management was cognizant of Behrens' support of the
Union and also that McIntyre harbored strong antiunion
feelings.
3. The new demonstrator plan
When Behrens was hired in 1974, the practice in
Respondent's business was to assign salesmen used cars as
demonstrators with no specific restrictions or charges
attached to their use.
In the autumn of 1974, Respondent instituted a highly
structured plan for assigning new cars as demonstrators.
This was first promulgated in a memorandum on Septem-
ber 15, 1974, and was verbally announced by then Sales
Manager William Ogborn at a meeting of the sales staff,
including Behrens, about November 1, 1974, when the new
cars were about to be assigned. Under this plan each
salesman assigned a new demonstrator was required to
drive it to work daily. He was further required to pay into
an escrow fund for that particular vehicle at the rate of $50
a month, the fund to be security against loss on the vehicle
prior to or at the time of ultimate sale, with any excess in
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the event of no loss to be refunded to the salesman. In
addition, the salesman was required to pay mileage at the
rate of 10 cents for miles in excess of 800 per month, such
charges to be deducted from the salesman's monthly pay
check.
The new demonstrator plan evoked strong opposition
from the salesmen, especially from those who resided
substantial distances from the dealership and expected to
run over 800 miles per month. In an effort to soften the
impact of the new plan, Ogborn emphasized that McIntyre
was not interested in getting the salesmen's money. He
argued that they would get back the $50 per month
payment when they sold the car and that the only purpose
of the mileage charge was to keep the mileage of the vehicle
down.5 During the interchange at this meeting, Ogborn
suggested by implication that the recorded mileage could
be kept down by disconnecting the odometer cable. That
idea was apparently accepted by the salesmen. Later in the
meeting Ogborn, thinking better of it, tried to reverse his
suggestion by telling the salesmen it was stupid, that he
feared someone would get caught and justify himself by
saying Ogborn had approved disconnecting odometers,
and, therefore, he was denying it right then.
In early 1975, a month or two after the new demonstra-
tors had been assigned, Ogborn informed the salesmen at a
regular sales meeting that McIntyre was unhappy because
of the mileage accumulated on the new demonstrators.
According to Gary Worley, then a salesman for Respon-
dent, and Behrens, who corroborated each other and who I
credit, McIntyre was displeased because higher mileage
made the demonstrators more difficult to sell. Ogborn
indicated he did not care what means the salesmen took to
ensure low mileage even if it involved disconnecting the
odometers.
4. 'The disconnecting of odometers
Following the sales meeting just referred to, Worley
disconnected his own odometer and that of Behrens. At the
end of that month, one of the office bookkeepers noted that
very few miles had been accumulated on Worley's
demonstrator and asked him about it. He told the
bookkeeper that Ogborn had approved unhooking the
odometer. When Ogborn heard this he instructed Worley
to reconnect it, telling him that McIntyre was upset
because Worley had disconnected it and because he could
get into a lot of trouble that way. Worley then reconnected
his odometer. Ogborn testified that he told the salesmen
that the next man who disconnected an odometer would be
fired. Worley denies that Ogborn specifically threatened
discharge. I credit Worley in this regard. At the time of the
hearing he was at least as disinterested a witness as Ogborn
and did not suffer from the embarrassing position that
Ogborn found himself in after having himself suggested
that odometers be disconnected.
Behrens kept his odometer disconnected for about 2
weeks after Worley performed that chore for him. He then
had it reconnected. Thereafter, Behrens kept his odometer
disconnected half of each month.
5 It is undisputed that it is easier to sell a demonstrator with low mileage
than one with high mileage.
It was general knowledge among the salesmen that some
demonstrator odometers were disconnected. In addition to
Worley and Behrens, the salesmen who at times discon-
nected their odometers included Fred Fowler (no longer
with the dealership), Walt Matas, and James Cigalina.
5. Management's knowledge of odometer
disconnecting
Respondent takes the position that all disconnecting of
odometers was unauthorized, that when management
learned of disconnections prompt action was taken to
correct the matter, and that if other instances of discon-
nected odometers existed, such were unknown to manage-
ment.
As already noted, Sales Manager Ogborn had in the first
instance suggested odometer disconnecting as an accom-
modation to the salesmen's strong opposition to the
burdensome new demonstrator plan. That under these
circumstances management officials did not understand
that a great deal of odometer disconnecting continued, is
unbelievable. In addition, there is substantial specific
evidence of management knowledge of such disconnecting.
Thus, Behrens credibly testified that some time after
March 1975 McIntyre borrowed his demonstrator at
lunchtime at a time when the odometer was disconnected.
His testimony is corroborated by Sherrie Hughes who was
then an office employee of Respondent. I do not credit
Mclntyre's denial that he did not borrow Behrens'
demonstrator. It is reasonable to infer that McIntyre
noticed that the odometer was disconnected. Behrens
credibly reported, and I find, that on his return from lunch
McIntyre commented to Behrens that that odometer was
disconnected. Apparently no action was taken against
Behrens at that time.
Behrens also testified that on another occasion he took a
new truck out of the dealership to show to prospective
buyers and on Van Vessen's directions had the odometer
disconnected.
Cigalina testified credibly that he obtained Van Vessen's
permission to drive his demonstrator to Memphis to visit a
sick relative and that Van Vessen approved the disconnect-
ing of the odometer so that Cigalina would not have to pay
the mileage charge. He made the trip and on his return
reconnected the odometer.
According to Behrens, the subject of disconnected
odometers was discussed a number of times among the
salesmen in "bull sessions" in Van Vessen's presence
during August. I do not credit Van Vessen's denial that
such discussions occurred. For one thing Cigalina credibly
testified that he overheard Walt Matas obtain permission
from Van Vessen to take an expensive pickup truck to the
Illinois State Fair at Springfield, Illinois. Van Vessen gave
Matas permission but directed him to have the odometer
disconnected because McIntyre did not want more mileage
put on the truck. Thereafter, that truck's odometer
remained disconnected for a substantial period of time.
Respondent relies on mileage records to discredit
testimony indicating that management knew of the practice
444
MELODY OLDSMOBILE - GMC, INC.
of disconnecting odometers. But I do not trust those
records and credit instead the testimony of the witnesses
offered by the General Counsel to the effect that the
odometer on Matas' truck continued to show almost no
accumulated mileage until near the time Behrens' was
discharged. A few days thereafter, that odometer suddenly
showed substantial mileage. I also do not credit the
testimony of Walt Matas in denying that the truck's
odometer was disconnected because his answer was not
complete. He was interrupted before he finished and
although he denied that Van Vessen directed him to
disconnect the odometer prior to his going to the Illinois
fair, he gave his answers to leading questions which
suggested the desired answer. On the other hand, he
admitted that he never paid mileage on his truck, yet he
lived 20 miles away from the dealership. On the basis of a
6-day workweek, that would have amounted to 960 miles in
a 4-week period just going to and from work. He also
admitted that he and Cigalina on occasion traded demons-
trators on weekends and that the odometers on both
vehicles were disconnected. George Adams, who was still
employed by Respondent at the time of the hearing,
testified credibly that at times he drove Behrens' demon-
strator and also the Beau James pickup truck assigned to
Matas, and that both odometers were disconnected.
On another occasion Cigalina complained to McIntyre
about the long working hours and also about the mileage
charge of 10 cents, which he asserted was unfair. To this
latter complaint McIntyre replied, "All you goddamn
salesmen turn the speedometers back anyway."
Finally, Sherrie Hughes, a disinterested witness who at
the time of the hearing no longer was employed by
Respondent, testified that she had heard Respondent's
office manager, Carol Nord, who was assigned a company
car on the same basis as the salesmen, tell McIntyre that he
knew she did not turn back her odometer because she
showed a lot of mileage on her car. The inference was that
odometers which did not show much mileage were either
disconnected or turned back.
From the above I find that not only was it common
practice for Respondent's salesmen to disconnect demon-
strator odometers for substantial periods of time in order to
avoid obvious accumulated mileage which neither the
salesmen nor the management wanted, but also that
McIntyre and Van Vessen knew it was common practice
and allowed it to continue.
6. The decision to discharge Behrens
As already noted, McIntyre was upset when he learned
on October 29 that Adams, Behrens, and Cigalina had
signed union authorizations. Around November 1, Van
Vessen checked the mileage on the demonstrators, includ-
ing the one assigned to Behrens. Behrens' odometer
showed the same as it had the previous month because it
was disconnected. McIntyre testified that Van Vessen told
him about this "when" he took the readings. He then
testified that Van Vessen told him on November 17. In any
case, Respondent took no action respecting Behrens'
6 Motor Vehicle Information and Cost Saving Act, 86 Stat. 961-963
(1972), 15 U.S.C., Sec. 1981-1991.
mileage until November 17 at which time Mcintyre called
him into his office, informed him that his demonstrator had
been sold and that McIntyre had verified that the
odometer was disconnected. He told Behrens this was a
violation of company policy and a violation of the law
which could cost Behrens a fine of $5,000 or 5 years injail.
He gave Behrens the option of either signing a confession
or having McIntyre call in the state attorney. Behrens
chose to sign the confession which reads:
I, Richard Behrens employed as a salesman at Melody
Olds and GMC Inc. was assigned a demonstrator car
number 75-398, serial number 3N69K5M259934. On or
about October 1, 1975 I1 did disconnect the speedometer
cable on my car, I continued to operate said car
through November 14, 1975, in this manner.
This act was committed without the knowledge or the
consent of the company for which I am employed.
After he signed the statement McIntyre fired him. Before
he left, Behrens expressed the hope that there were no hard
feelings over the Union to which McIntyre replied, "As far
as I'm concerned, there has never been a union here and
there never will be."
7. The motive for the discharge of Behrens
The antiunion attitude expressed by Van Vessen and
particularly by McIntyre, together with the predictions by
Van Vessen that McIntyre would get the union men one at
a time, the statements of McIntyre indicating the futility of
employee efforts to organize, plus the incidents of interfer-
ence with Section 7 rights found herein, all point to a
discriminatory motive for the discharge of Behrens. As
against this, Respondent's defense that he was discharged
for cause because he violated company policy as well as the
law, does not withstand examination. Whatever the
declared company policy asserted during the hearing, the
evidence shows that Respondent knowingly permitted
frequent and continuing disconnection of demonstrator
odometers. In fact allowance of such a practice amounted
to a compromise between the Company's stern policy and
the strong opposition of the salesmen to that policy. To say
that disconnecting of odometers was contrary to company
policy simply does not square with the facts.
Respondent correctly urges that the disconnecting of
odometers is unlawful under Federal law.6 Disconnecting
an odometer subjects the person doing so, or his agent, to
civil liability for treble damages or $1,500, whichever is
greater, plus costs, as well as appropriate injunctive relief.
Such conduct, however, is not a crime. It is a civil violation.
Such violations are not to be condoned. Nor should the
National Labor Relations Act be applied in a manner to
encourage violations of the Motor Vehicle Information and
Cost Savings Act. On the other hand violations of that act
should not be permitted to serve as pretexts to obscure
violations of the National Labor Relations Act. This is
what I find occurred here.
445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent did not have a clear consistent policy in
accord with the Motor Vehicle Information and Cost
Saving Act. It repeatedly allowed deviation from that Act
and in fact promulgated and kept in effect a demonstrator
policy which encouraged violations by placing burdensome
requirements on salesmen to operate their demonstrators
substantial distances between home and the dealership and
during work.
It is noteworthy that when management instructed
Worley to reconnect his odometer, no further action was
taken against him. He was not discharged. But at that time
no union activity was evident. Respondent acted different-
ly towards Behrens when McIntyre learned his odometer
showed the same mileage for 2 months running and almost
concurrently learned he was one of the three union
proponents. He was fired. This suspicious timing suggests
that the stated reason for discharge, the disconnecting of
his odometer, was a pretext. So also do the statements of
Van Vessen and McIntyre, referred to above, as well as the
various independent violations of Section 8(aXI) found
herein.
I reach this result by viewing the record as a whole and
with the realization that the credibility of several witnesses
on both sides of the case is suspect. But even though the
case is not free from doubt I conclude that substantial
evidence supports the finding that the true reason for the
discharge of Behrens was not his unlawful disconnecting of
his odometer but rather his allegiance to the Union, and
that Respondent's purpose was to get rid of the union
supporters one at a time. Thus, Behrens was the victim of
discrimination which tended to discourage membership in
the Union. Such conduct by Respondent violated Section
8(a)(3) and (1) of the Act.
F. Postelection Crackdown
The General Counsel contends that on December 6, the
day after the Board election, Respondent imposed on its
salesmen more onerous working requirements which
violated Section 8(a)(1) of the Act. These were (1) the
meeting of sales quotas as a condition of continued
employment and the abolition of sales bonuses; (2) the
prohibition of personal telephone calls to or from sales-
men; (3) the abolition of private telephone lines for
salesmen; (4) the prohibition of salesmen "huddling" on
the sales floor; and (5) the prohibition of salesmen eating
together.?
1. Quotas and bonuses
At Respondent's dealership it was customary for the
sales manager to assign to each salesman a monthly quota
of vehicles to be sold. No specific detriment attached to a
salesman's failure to make the quota although there have
been salesmen in the past who were let go because they did
not generate adequate sales. For the most part, however,
management's efforts to motivate the salesmen were in the
form of incentive bonuses for achieving high sales volume
during a specific period of time. Thus, management by and
I The complaint contains no allegations respecting sales bonuses,
"huddling", or eating together. However, these matters were fully litigated at
the hearing.
large relied on a carrot approach rather than a stick
approach.
Van Vessen testified without contradiction that monthly
quotas were assigned for November and that none of the
salesmen met them. Sales efforts failed to reach the
projected target for that month. Then on December 5 the
Board election was held. On that morning McIntyre
commented to Cigalina that he had not made his draw and
that he had better start selling cars. Although Cigalina had
on other occasions in the past failed to make his draw, this
was the first time that McIntyre had ever mentioned it to
him.
Later that same evening Cigalina suggested to Van
Vessen that management put up a bonus to stimulate sales.
The sales manager rejected the idea saying there would
never be a bonus, that the salesmen had really upset
McIntyre, and that he was going to get them one by one.
Adams corroborates Cigalina's testimony that Van Vessen
said there would be no more bonuses. He recalls that Van
Vessen said the reason was that, "You fellows started this."
In spite of this prediction Respondent thereafter continued
to have bonus programs and in fact the very next week
Cigalina received a $25 bonus. Van Vessen denied that he
said anything about the bonuses or that he indicated they
were being denied because the salesmen had "started it." I
do not credit his denial because Cigalina's testimony is
corroborated by Adams.
The following morning, December 6, Van Vessen held a
regular sales meeting at which he announced the sales
quotas for December, emphasizing that the salesmen had
to make them. According to Adams, whom I credit, he
clearly intimated that a salesman would be fired if he failed
to make his quota. Adams recalls Van Vessen saying that,
"These are your quotas and you better make them or else."
Management's emphasis thus changed from monetary
inducement to threat of discharge. In the past the salesmen
had never been told what would happen if they failed to
meet a quota.
Respondent contends, first, that there was no change at
all in its quota or bonus policy. It is clear, however, that the
announced policy changed. There were to be no more
bonuses, and sales quotas had to be met to avoid discharge.
There is no evidence to show that the threat of discharge
for failure to meet a quota was in fact carried out. And as
for bonuses, the record shows that management in fact
continued to offer them.
Second, Respondent contends that sales were down and
that the measures taken were warranted. The evidence,
such as it is, does indicate that November sales were down.
This would seem to justify some measures to stimulate
sales. But there is no explanation for the switch from a
positive to a negative approach, other than an effort by
antiunion management to inflict reprisals on the salesmen
for their coincidental support of the Union. I think the
record warrants that inference and I so find. Such conduct
by Respondent was an unfair labor practice within the
meaning of Section 8(aXl) of the Act.
446
MELODY OLDSMOBILE - GMC, INC.
2. The ban on personal telephone calls
Respondent had an established policy regarding personal
telephone calls on company telephones under which a
reasonable number of calls were allowed and a rule of
commonsense prevailed. At the December 6 sales meeting
Van Vessen instituted a new rule against the making or
receiving of personal telephone calls in the dealership.
According to him, "I told them they would not receive any
personal calls, that our bill is getting out of hand."8 The
salesmen understood that the ban applied to both incoming
and outgoing calls. According to Cigalina, the salesmen
could not even call their "bird dogs" (persons to whom
they looked to refer sales prospects to them).
Respondent's position, as expressed by Van Vessen, is
that Respondent was merely continuing an established
policy. That there was an existing policy against excessive
personal telephoning, is clear. But as announced at the
December 6 meeting, management's position was categori-
cally against all calls of a personal nature. This was a
stronger position than had been taken earlier and was a
substantial limitation on the salesmen's privileges. In fact,
implementation of the ban against incoming personal calls
resulted a few days thereafter in Cigalina not receiving a
call from his wife who was ill and in need of medicine. This
was one of the factors which lead to his resignation in mid-
December.
There is no convincing explanation in the record for the
ban on personal calls. Considering the timing and the
union animus shown by Respondent, the only reasonable
inference is that it was another reprisal against the
salesmen for their union activity. I so find. I also find that
such conduct was an unfair labor practice within the
meaning of Section 8(aX)(1) of the Act.
3. The ban on private telephone lines
In addition to being a salesman for Respondent, Adams
was also involved in local politics. During much of 1975, he
was a town trustee for the municipality of Cedar Lake,
Indiana. In early 1975 he and Behrens, with the approval of
McIntyre, arranged for the installation of a private
telephone line to their desks. The two salesmen agreed to
split the cost of this private line which was intended for
both business and political use.
Somtime in early 1975 Adams was defeated in a primary
election and in the November general election someone
else was elected to his position as town trustee. At the time
of Behrens' discharge on November 17, Adams was,
therefore, a lame-duck town trustee.
Between November 17 and the election on December 5,
McIntyre asked Adams whether he wished to keep the
private line in view of the fact that Behrens was gone and
Adams would have to stand the entire cost himself. Adams
testified that he told McIntyre he wished to try it for a
while to see if the cost was warranted. Mcintyre contrad-
icts Adams respecting their conversation. According to
him, when he asked Adams 3 days after Behrens was fired
whether he wished to keep the private telephone line,
Adams said he did not wish to because it was too
8 Just how the number of incoming calls could affect Respondent's bill is
not explained.
expensive. McIntyre specifically denied that Adams indi-
cated he wanted to try to keep the private line on his own.
Considering that the cost for Adams was going to double
and his political needs apparently diminished, McIntyre's
version seems logical. Nevertheless, I credit Adams
because in general he impressed me as a more reliable
witness, because what transpired later is consistent with
other limitations management placed on the salesmen, and
because with respect to what later happened regarding the
private line, Cigalina corroborates Adams.
Adams further testified credibly, and I find, that after the
Board election (the exact time of which was unclear to both
Adams and Cigalina) McIntyre informed Adams there
would be no more personal telephone lines allowed and
that the private line to his desk would be disconnected.
There was no discussion at that time whether Adams could
afford the line, nor was he asked whether he wished to keep
it. Cigalina testified that he overhead this conversation. I
find the facts are in accordance with Adams' account. But
Adams also admitted that at some point, he was not sure
exactly when, he informed McIntyre that he could not
afford to keep the private line. Thus, Adams' position on
keeping the line may have been ambiguous. In the
circumstances, it is not clear that McIntyre decreed he
could not have a private telephone line even if he wanted
one. Accordingly, I find that the evidence fails to establish
that Mcintyre imposed a limitation on Adams in this
respect. I find no unfair labor practice was involved and
the allegations of the complaint so alleging should be
dismissed.
4. The ban on "huddling"
In Respondent's business the term "huddling" refers to
occasions when two or more salesmen congregate in the
middle of the showroom floor for conversation. Adams
testified without contradiction that in some instances these
conversations were the occasion for salesmen to exchange
helpful sales information.
Cigalina, whose testimony is corroborated by Behrens,
testified that about a week or two after the union
authorization cards were signed on October 27 and again
about 10 days after that, McIntyre broke up groups of
salesmen huddling on the sales floor. Behrens reported
McIntyre as saying, "What have you got going, a sales
meeting or union meeting; get back to work." And at the
sales meeting on December 6 (the morning following the
election) Van Vessen, among other things, decreed there
would be no more huddling of salesmen on the showroom
floor.
Respondent's defense is that no change in working
conditions was involved. I so find. Uncontradicted testimo-
ny shows that Respondent always has had a policy against
salesmen congregating on the showroom floor on the
ground that such might give a bad impression to incoming
prospects. Respondent's implementation of its policy was
intermittent in that nothing was said to salesmen about it
until they became lax in their observance of the policy and
began huddling again. That is apparently what happened
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here. The incidents referred to by Cigalina and Behrens in
the weeks following the card signing all involved occasions
when salesmen actually were huddling on the showroom
floor. Van Vessen's instruction against huddling, made at
the sales meeting on December 5, was subsequent to those
incidents. The evidence fails to establish that the remarks
of Van Vessen and those made earlier by McIntyre were
anything other than the normal, albeit intermittent,
implementation of established company policy. In my view
no finding of unfair labor practice is warranted in the
circumstances.
5. Meal breaks
The normal duty hours of the salesmen spanned
mealtimes. Although management had always allowed the
salesmen to leave the dealership for meals, such permission
was always conditioned on the requirement that the sales
floor not be left unattended. Subject to that understanding
it was common practice for two or more salesmen to go to
lunch or supper together. The record is barren of any
evidence of salesmen leaving the sales floor unattended or
abusing this policy.
During the sales meeting on December 6, Van Vessen,
for the first time, announced that only one salesman at a
time could leave the sales floor at mealtime. Thus, it
became impossible for salesmen to eat together.
It seems clear from the evidence that in this respect Van
Vessen was announcing a new and theretofore unknown
limitation on the salesmen. The ban on more than one
salesman leaving the floor at a time was categorical. It was
not conditional upon other sales personnel being in
attendance on the sales floor. The new policy was plainly
more stringent than the old. And there is no evidence of a
business need for the stricter rule. The only context, then,
in which to evaluate the purpose of this new rule is the
timing immediately after the Board election plus the
antiunion attitude of management noted elsewhere herein.
In these circumstances I find that the stricter rule was a
reprisal for the salesmen's union activity and the support
given the Union in the Board election. Such conduct was
an unfair labor practice within the meaning of Section
8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, which are found to be unfair labor practices
occurring in connection with the operations described in
section I, above, have a close, intimate, and substantial
relationship 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.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed in Section 7
of the Act, thereby committing unfair labor practices
within the meaning of Section 8(aX)() of the Act, by:
(a) Its Sales Manager Leonard Van Vessen, in early
November 1975, telling salesmen, in effect, that if he heard
about any union activity he would discharge the salesman
involved;
(b) Around November 1, 1975, discontinuing the even-
handed referral to salesmen of telephone inquiries from
prospective customers;
(c) Around December 5, 1975, because some salesmen
had supported the Union, imposing on them various
obligations and restrictions, including monthly sales quotas
sanctioned by the threat of discharge, the announcement
that sales bonuses were abolished, the banning of incoming
or outgoing personal telephone calls, and the prohibition of
salesmen eating together.
4. Respondent discriminated with respect to employee
hire and tenure of employment, and the terms and
conditions of employment, thereby discouraging member-
ship in a labor organization and committing unfair labor
practices within the meaning of Section 8(aX3) and (1) of
the Act, by discharging Richard Behrens on November 17,
1975, and thereafter refusing to reinstate him.
5. The unfair labor practices found above affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that it cease and desist therefrom
and take certain affirmative action to effectuate the policies
of the Act. I recommend that Respondent be ordered to
offer Richard Behrens immediate and full reinstatement to
his former position or, if that position is not available, to a
substantially equivalent position, without prejudice to his
seniority or other benefits and privileges, and that he be
made whole for any loss of earnings suffered by reason of
the discrimination against him by paying him a sum of
money equal to that which he would have earned from
November 17, 1975, the date of his discharge, to the date
Respondent offers him reinstatement, less his net earnings
during such period. Backpay is to be computed in the
manner set forth in F. W. Woolworth Conpany, 90 NLRB
289 (1950), with interest thereon at 6 percent calculated
according to the formula set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). I further recommend
that Respondent be required to preserve and make
available to Board agents, upon request, all pertinent
records and data necessary in analyzing and determining
whatever backpay may be due. I further recommend that
Respondent post appropriate notices at its premises in
Cedar Lake, Indiana.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
448
MELODY OLDSMOBILE - GMC, INC.
ORDER 9
The Respondent, Melody Oldsmobile - GMC, Inc.,
Cedar Lake, Indiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge or other
reprisals for engaging in union activity.
(b) Discharging or otherwise discriminating against
employees for engaging in union activity.
(c) Refusing to refer to salesmen in an evenhanded
manner information calls from prospective customers.
(d) Subjecting salesmen to the threat of discharge for
failing to meet sales quotas because they engage in union
activity.
(e) Announcing the abolition of sales bonuses because
the salesmen engage in union activities.
(f) Abolishing the established practice of allowing a
reasonable number of personal telephone calls to or from
salesmen because they engage in union activity.
(g) Prohibiting salesmen from taking their meals together
because they engage in union activities.
(h) 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 American Federation of Professional Salesmen, or any
other labor organization, to bargain collectively through
representatives of their own chosing, and to engage in
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 or all such activities,
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
except to the extent such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8(a)(3)
of the Act as modified by the Labor Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Richard Behrens immediate and full
reinstatement to his former position or, if that position is
not available, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings in
the manner set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents all records necessary to analyze the
amount of backpay due under the terms hereof.
(c) Post at its Cedar Lake, Indiana, premises copies of the
attached notice marked "Appendix." to Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by its authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
'I In the event 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
449