Mike Persia Chevrolet Corp. of Houston

National Labor Relations Board - Board Decisions

Dec 20, 1961

134 N.L.R.B. 1402 (N.L.R.B. 1961)

1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faith is a necessary requirement in any such decision to withdraw, because of
the unstabilizing and disrupting effect on multiemployer collective bargaining
which would result if such a withdrawal were permitted to be lightly made.
I have found above that the statewide Association-Conference industry unit is an
appropriate unit herein . Under the facts presented herein , I am compelled to find
that the Local did not withdraw from the multiemployer -multiunion bargaining
unit in an unequivocal manner and in good faith.
In view of the above findings,36 it is my conclusion that this record does not
contain the preponderant evidence needed to establish that Respondents ' conduct
constituted a refusal to bargain within the meaning of the Act. Accordingly, I
shall recommend that the complaints be dismissed.
On the basis of the foregoing findings of fact , and upon the entire record herein,
I have reached the following:
CONCLUSIONS OF LAW
1. The Respondents , Foley Construction Company, The W. L. Harper Company,
and Chas. F. McCurdy, Inc., individually , are each engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Truckdrivers, Chauffeurs and Helpers Union Local 100, and Ohio Conference
of Teamsters of the International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , are labor organizations within the meaning of
the Act.
3. Respondents , and each of them, have not engaged in unfair labor practices as
alleged in the complaints within the meaning of Section 8(a)(5) and ( 1) of the
Act.
[Recommendations omitted from publication.]
311 find it unnecessary to reach or resolve the questions of ratification and estoppel
raised by Respondents . I also find it unnecessary to determine the appropriateness of the
unit sought by the Local under circumstances at variance with those found herein
Mike Persia Chevrolet Corporation of Houston and Retail Auto-
mobile Salesmen Local No. 501 , affiliated with Retail Clerks
International Association , AFL-CIO. Case No. 23-CA-1150.
December 20, 1961
DECISION AND ORDER
On August 24, 1961, Trial Examiner A. Norman Somers issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor. practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the In-
termediate Report attached hereto. Thereafter the Respondent filed
execptions to the Intermediate Report, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
134 NLRB No. 135.
MIKE PERSIA CHEVROLET CORPORATION OF HOUSTON 1403
proceeding, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Mike Persia
Chevrolet Corporation of Houston, Texas, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discharging or otherwise discriminating against any em-
ployee to discourage membership in Retail Automobile Salesmen
Local No. 501, affiliated with Retail Clerks International Association,
AFL-CIO, or in any other labor organization, or in reprisal for en-
gaging in concerted activity protected by Section 7 of the National
Labor Relations Act.
(b) Threatening employees with discharge or other reprisal be-
cause of their union activities.
(c) Coercively interrogating employees concerning their affiliation
with, activity in, support of, or interest in the above-named or any
other labor organization.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in any other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer William Ray and Cecil H. Stevenson immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges,
and make each of them whole for any loss of earnings he may have
suffered as a result of his discharge, in the manner set forth in the
section of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its various establishments in Houston, Texas, copies of
the notice attached to the Intermediate Report marked "Appendix." 1
In the notice attached to the Intermediate Report as Appendix, the words "A Decision
and Order" are hereby substituted for the words "A Recommended Order of a Trial
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of such notice, to be furnished by the Regional Director for the
Twenty-third Region, shall, after being duly signed by an authorized
representative, be posted by Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Twenty-third Region, in
writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
Examiner." In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and
Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing
an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case, with the parties represented, was heard in Houston, Texas, on April 11
and 12, 1961, on complaint of the General Counsel and answer of Respondent. The
issue was whether Respondent had discharged two employees in violation of Sec-
tion 8(a)(3) and (1) and otherwise infringed upon employees' guaranteed rights,
in violation of Section 8(a)(1) of the Act. Oral argument was waived, and the
General Counsel and Respondent have submitted briefs conscientiously analyzing
the record and assisting in the disposition of the issues. Upon the entire record,
and from my observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Texas corporation, is a dealer in autos and trucks with its principal
outlet and two other branches in Houston. It has an inflow of products from out-
side the State and does an annual business, each in excess of $1,000,000. Jurisdic-
tion is undisputed.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, hereinafter called the Union , is a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background: organization of union among the Houston anto salesmen
In the latter part of November 1960, a number of salesmen employed in auto-
mobile agencies in Houston, came to the special representative of the parent organi-
zation of the Union, seeking advice for forming a union of retail automobile sales-
men in the Houston area. Donald Hofer, the representative in question, arranged
and held a first meeting on December 6, at which temporary officers were elected.
At the second meeting, held the next day, about 175 attended. On December 8,
news releases were handed to radio stations, which announced the organization of
retail auto salesmen in Houston. On December 9, another meeting was held,. at-
tended by about 200. On the basis of the showing thus made, a charter was applied
for to the parent organization for the local which is the Charging Party here. On De-
cember 14, a contract advisory committee was elected for the purpose of adapting
contracts with automobile agencies in other localities for use in connection with
possible future bargaining in Houston. On December 16, proposals were gotten up
for that purpose, patterned largely after what was termed the "California Contract,"
and on January 4, permanent officers were elected. On January 10, after acquiring
20 'signed cards from among the 25 salesmen in Respondent's main showroom and
2 branches, the Union sent Respondent a request for recognition, and on the next
day, filed with the Board's Regional Office a petition under Section 9 of the Act for
MIKE PERSIA CHEVROLET CORPORATION OF HOUSTON 1405
an election among Respondent's employees. Nothing more appears in the record
concerning either of these two steps or their sequel.'
B. The addresses of General Sales Manager Robert Patterson and Vice
President Joseph Conte on December 9 and 10, respectively
On the morning of Friday, December 9, the day after the radio publicity given
to the organization of the Union, -General Sales Manager Patterson addressed a
regular weekly meeting of Respondent's salesmen in all three branches. Patterson
told the group he understood there was- a union being organized among the retail
salesmen and that he did not want any of his salesmen having anything to do with
the Union, and that if "anybody had anything to do with the union or joined the
union, why he might as well pick up his marbles," that he would be "automatically
fired." 2
As indicated (supra, footnote 2), Joseph Conte, vice president of Respondent,
upon being "advised of what had taken place at the meeting," took the unprecedented
step of calling a special meeting of the salesmen of all three branches. He made
no specific reference to Patterson's speech of the day before, but the contents and
occasion of his own talk would indicate that it was prompted by Patterson's address.
Conte, too, opened by stating that he had heard that there were efforts to organize
a union among the city's automobile salesmen. He told them, however, that at-
tending a union meeting or joining one was "their own God given right," and if they
thought "they can make more money . . . that way," they could join a union, and
that Respondent was "not going to interfere with them," and, to the contrary, that he
"would fire [his] manager" if he did so; that the men could "use [his] office, have
a meeting about it, [and] talk about it on the floor, providing it does not interfere
with the selling of automobiles." He then addressed himself to the economic
aspects of such a step. Buttressing his point with a financial statement of the Com-
pany, which showed Respondent operated on a low percentage of net income above
expenses and taxes, he indicated that if they chose a union and what it "asked for
was greater than what we can provide for, then we could not exist." He concluded
by saying that "if the union was the best thing for them and they can make a lot
of money, that would be fine," but that "if it wasn't, then [he] hoped to God, that
they would make the right decision." 3
Since Conte's appeal was on straight economic grounds, had nothing more hap-
pened, his assurance to the men of their right to join a union could well have
neutralized Patterson's threat of the day before. Whether it did hinges upon events
'Official notice, however, is taken of a Decision, Order, and Direction of Elections
issued by the Board on August 14, 1961, in the consolidated proceeding of Houston Auto-
mobile Dealers Association, 132 NLRB 947, in which the Board, inter alia, dismissed the
petition with respect to this Respondent and certain other employers because the Union
did "not have a sufficient showing of interest among the employees of each of these
Employers-to warrant directing an election " -
2 The foregoing is based on the versions of Ray and Patterson, as corroborated in part
by the only two of the four employee witnesses, produced by Respondent, whom Respond-
ent questioned concerning the occurrence. It. N. Alsbury testified that Patterson made
the threat of discharge only in connection with carrying on other business on the floor,
and that he did not mention the Union Billy Place; on the other hand, testified that
Patterson made such a threat in connection with the-Union but only in reference to "any
business or any outside activities which kept them from doing their job." As appears in
the text, Vice President Joseph Conte called a special meeting of all the salesmen, at
which, among other matters, he expressly assured them of their right to join the Union.
Such a special meeting of all the salesmen, after the regular one of Friday, at which
Patterson gave his talk, was unprecedented and was called by Conte, as the latter testified,
after he was "advised of what had taken place at the meeting." Considering its manifest
purpose, Conte would hardly have been impelled to take this step if Patterson had quali-
fied his threat about the Union in the manner that Place testified he had, and still less
so if Patterson had made no reference whatever to the Union, as Alsbury testified It
would seem a fair conclusion that the preponderance is with the versions of Ray and
Stevenson: as opposed to the conflicting ones of Alsbury and Place, their are consistent
with each other and with the probabilities, and giving them added credence is the un-
explained failure of Respondent to produce Patterson to give his own version of the talk.
8 The foregoing is a summary of Conte's own version of his talk, which is in substantial
accord with the versions of all the witnesses The sole exception is a statement, attributed
to Conte by Stevenson, that as to those who joined the Union, he would "know who
[they] were." This last is rejected for its lack of. corroboration and its inconsistency
with the manifest purpose of Conte 's address at that time.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a whole, including those which occurred after December 10. The employees
involved in the events succeeding that day were William Ray and Cecil H. Stevenson,
who were the most prominent supporters of the Union and were discharged, respec-
tively, on January 7 and 16. Hence, the respective conversations between them and
management representatives preceding their discharges will be discussed as part of
the background of their cases.
C. The discharges of William Ray and Cecil H. Stevenson
1. Their support of the Union and management comments concerning the same
preceding the discharge of Ray on January 7
William Ray, employed by Respondent in October 1960, and Cecil Stevenson,
employed by Respondent since July 1958 (except for a 1-month interval in the
summer of 1960, when he left of his own accord to go with another dealer and re-
turned at the invitation of General Manager Patterson), joined the Union after
Conte's speech. Though Stevenson joined on December 14 and Ray on the 19th,
their open support of the Union among Respondent's employees was in the reverse
order, for, as Stevenson testified, he attended his first meeting after hearing Ray talk
up for the Union. At the first union meeting attended by him, Stevenson, in addi-
tion to joining, became a member of the contract advisory committee, previously
described, and also a "steward" covering Respondent's contingent of salesmen.
Ray, as previously indicated, after openly espousing the Union, joined on the 19th.
At the election of permanent officers on January 4, both Stevenson and Ray ran
for office, and though each was defeated, Stevenson continued as steward until the
day of his discharge on January 16, and also as member of the contract advisory
committee.
Ray's support consisted largely in his open espousal of the Union among the
employees in the main showroom, where he and Stevenson were stationed. He
solicited a number of employees, and was identified by Billy Place, a witness for
Respondent, as having specifically solicited him to sign a union card. The effective
solicitation, however, was performed by Stevenson, who procured 14 of the '20 card
signatures obtained by the Union from among Respondent's employees by Janu-
ary 10, when it sent Respondent its recognition request. Of these 14, Stevenson
obtained 9 the first week of January, preceding Ray's discharge. The comments to
them concerning the Union in December came from Patterson, and if they stood
alone and were divorced from his address of December 9 and his statements at the
time he discharged Ray on January 7, could hardly be considered of earth-shaking
proportions. But they do reflect, though to a lesser extent, the hostility voiced
by him earlier that month. On December 16, while handing out the bonus checks,
on coming to Ray, he remarked, "Here is old Bill Ray, the steward." On or about
December 21, he asked Stevenson whether he had joined and "what went on out
there," to which Stevenson replied that it was an open meeting and that he could
find out for himself. About the same time, he called Ray into his office and, after
speaking to him about his low sales record, concluded with the admonition to "go
on and go back to work and forget about the Union."
2. The discharge of Ray on January 7
On the morning of January 7, Patterson presided at a daily meeting of the sales-
men of the main showroom 4 At the appointed hour of 8, Patterson closed the door
and noted that one of the salesmen was late. He invited opinions from the assembled
group concerning the discipline to be meted out, and suggested a fine of $10. One
of the group (Sales Manager Eskew) said that that employee owed him money
already. Patterson then proposed taking the late employee off the sales floor for 3
days, which would have excluded him from sales contacts on the floor. Ray then
remarked that the discipline was either too harsh or "unfair." The merits of Ray's
observation do not directly concern us, save for its bearing on the comprehensibility
of Ray's openly taking issue with the proposed penalty: according to the undenied
testimony of Stevenson in another context, the normal discipline, when a salesman
is late for a meeting, is to keep him off the selling floor for that particular day. As
Stevenson and Ray in substance told it, Patterson then addressed Ray saying, "I am
God damn tired of you butting in every time I say anything, and furthermore, I
want you and Stevenson to stay away from those branches signing those men up for
that God damn union"; Ray denied having "been out to the branches"; whereupon
4 Fifteen of Respondent's twenty-five salesmen were attached to main headquarters and
the remainder at the two branches.
MIKE PERSIA CHEVROLET CORPORATION OF HOUSTON 1407
Patterson responded , "You are a damn liar and furthermore you are fired ." Patter-
son then ordered Ray to turn over the key to his demonstrator car, and this ter-
minated Ray 's employment.
Patterson did not testify. Neither did Sales Manager Eskew, who was cited as
a participant in the discussion . Of the four salesmen produced by Respondent, all
still in its employ , Respondent 's counsel , on direct, interrogated three concerning it.
They substantially corroborated Stevenson and Ray , except that Place and Alsbury
testified that Patterson did not tie in his comment on Stevenson's and Ray's visits
to the other branches with union . solicitation . Alsbury, as will be recalled (supra,
footnote 2), had similarly absolved Patterson of having made any reference to the
Union even in his talk on December 9. Albert E. Hogsett, the third of Respondent's
witnesses on the subject , testified on direct, as had Place and Alsbury, that Patterson
merely accused Ray and Stevenson of visiting the branches . Then, after his recollec-
tion was refreshed by a sworn statement given 4 days after the incident , when, as
he testified , "I was more familiar with it than I am now," he testified anew to the
occurrence . He did so first on cross and then on redirect examination by company
counsel . In each instance, he corroborated Stevenson 's and Ray's version to the
effect that Patterson did in fact accuse Stevenson and Ray of signing or trying to
sign men up for the Union at the other branches . It is accordingly found that after
Ray, pursuant to Patterson 's invitation of opinions from the group , voiced his objec-
tion to the proposed discipline to the late employee , Patterson expressed his resent-
ment at Ray's "butting in ," and accused him and Stevenson of soliciting union
membership at the branches, and that upon Ray's denying it , he called him a "liar"
and discharged him.
The only other variant is in the use of the profanity . Stevenson 's and Ray's ver-
sions attributed all the profanity to Patterson , and Respondent 's witnesses to Ray,
they testifying that in response to Patterson 's accusation , Ray denied having been
at the "goddamed" branches . It would seem a fair composite of all the versions
that in the use of such invective , there was enough glory for both. Particularly so
since Patterson never testified in denial of the purple prose attributed to him, such
as that in introducing the subject of the discipline for the tardy employee, he im-
puted to the latter canine ancestry of divinely condemned vintage, and ascribed the
same heavenly condemnation , in that order, to the state of fatigue which he said he
experienced at Ray's "butting in," to the Union for which he accused Ray and
-Stevenson of soliciting at the branches , and to the mendacious attributes which he
imputed to Ray's denial of that accusation immediately before dismissing him.
At the hearing, Respondent 's counsel stated, "He was discharged , we con-
tend . ., for what occurred in the sales meeting ." What occurred at that meeting
is first that Patterson discharged Ray for availing himself of the invitation extended
to the group of expressing an opinion concerning the discipline to be meted out to
a tardy employee . The subject was one in which the employees had a common
interest as a precedent for all of them, particularly since the proposed penalty
exceeded the customary one, and Patterson, .by his own invitation , made this a
forum for interchange of views on the subject . Ray, in voicing his opinion , had been
engaging in a "concerted" activity, and the community of interest of the group in the
subject matter made this activity one for the "mutual aid and protection" of the
group , within the language and meaning of Section 7. Ray was thus discharged
for engaging in protected concerted activity, in violation of Section 8(a)(1), quite
without regard to whether the discharge was also because of Ray's support of the
Union , in violation of Section 8(a)(3). See Gullett Gin Company , Inc. v. N.L.R.B.,
179 F. 2d 499, 502 (C.A. 5); N.L.R.B. v. Jackson Tile Manufacturing Co., 282 F. 2d
90, 95 (CA. 5).
Concerning the violation of Section 8(a)(3), the disparate treatment in Patter-
son's intolerant reception from Ray of what he had in fact been inviting from the
group would seem to be in itself a hallmark of discriminatory intent . Having him-
self put his resentment on the basis of Ray's union activity, he would seem to have
eliminated the need for speculating as to whether he had any other reason not
stated by him. Cf. N.L.R.B. v. L. C. Ferguson, 257 F. 2d 88 (C.A. 5). Respondent
suggests it was the "profanity" with which Ray denied ,the accusation of soliciting at
the branches . There is no testimony from Patterson that he took amiss Ray's single
use of an expletive in making the denial of the' type to which he resorted in rather
detonating profusion from the start . Nor did he give any such indication when he
discharged Ray, for what prefaced his discharge was the expression of disbelief in
Ray's denial of the accusation that he had been soliciting for the Union in the
branches. As to the latter , somewhat inconsistently with the contention at the
hearing that Ray "was discharged . * . for what occurred in the sales meeting,"
Respondent now states in its brief that Ray was discharged for something that
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred outside it-for visiting the branches , which Respondent claims was an
offense in itself. On that score there is no evidence to contradict Ray's testimony
that he had not in fact been at the branches. Nor is there any testimony from
.Patterson that he was motivated by any report or belief that Ray had been to the
branches, or that if he had such a belief, what the basis for it was other than Ray's
being one of the two most active supporters of the Union. It would seem fair to
note that if Patterson had ,thought Ray had been at the branches, or that if that was
what concerned hun, he would expectably have said something to Ray about it before
this. Even then, the claim that the discharge was motivated by any objection to
Ray's visiting the branches, as opposed to his prominence in support of the Union,
would have to be weighed against the unqualified character of Patterson's threat the
previous month that union support as such would result in an employee's discharge,
-followed up by his overtures to both Ray and Stevenson, which are hardly indica-
tive of a cessation of his originally expressed hostility to employees supporting the
Union, or suggestive of any concern about visiting the branches. It would have to
be weighed also against an event on the next business day, showing an animus on
Respondent's part toward employees' signing men up for the Union having nothing to
do with visiting the branches. This consisted of a conversation between Conte and
Stevenson on January 9, to be detailed in the ensuing subsection, which Conte opened
with a reference to the difficulty Stevenson would experience in finding a new job at
his age and which he concluded with a request that Stevenson "let up on signing men
for the Union," without reference to visiting the branches. Applicable in the ap-
praisal of Patterson's words and conduct would seem to be the observation in
N.L.R.B. v. L. C. Ferguson, 257 F. 2d 88 at 90, that:
If the statements . . . were in fact made, they established without doubt that
both in form and purpose their effect was to discourage and frustrate the
statutory right of employees freely to organize and bargain collectively.
Hence this differs from (ibid.) :
the usual case, [where] detailed facts must be discussed and analyzed to
determine the purpose and motive of the employer in making the discharge.
This is in partial recognition that seldom can such intent be established directly
and that almost always must it be inferred from the total sum of the evidence.
In that connection , something may be said also about two additional items men-
tioned by Respondent. First is the statement that Ray had a poor sales record. Any
suggestion that this was a motivating factor in the discharge would seem rather
dispelled by the absence of any reference thereto on Patterson's part in discharging
Ray, the absence of any testimony by him that this was a motivating factor, and
counsel 's disclaimer at the hearing that it was. Even more crucially, any such con-
tention would be in the teeth of the testimony of Respondent's own witnesses that
a poor sales performance is not handled by discharge but by the inexorable
economics of the situation: these salesmen work entirely on commissions without a
drawing account, and as Vice President Conte, corroborated by B. G. Hall, a
witness for Respondent, testified , a salesman with a poor sales performance is not
discharged but "automatically eliminates himself" because of his inability to make a
living.
Respondent also states in its brief that even if Patterson had not discharged Ray
on January 7, Ray "could not have been retained in the employ of Mike Persia any-
way," because of a report, requested by Conte from the police department, and which
he received some time after Ray's discharge, but which Respondent claims was orally
communicated by the department to Conte several days before. The report was
never placed in evidence, and though Respondent characterizes it as a "criminal
record," it would appear to refer to several arrests of Ray, the last one occurring in
1955. If Respondent took the serious view of it which it now claims, it would have
been the natural thing for it to have taken some action on it within the interval
preceding the discharge and after Conte had been orally informed of its contents.
Yet Conte would seem 'not to have take it seriously enough to have informed even
Patterson about it, and there is no indication that Patterson either had been told
about it or had given it the slightest consideraion when he discharged Ray. Further,
Respondent at the hearing shifted its position concerning what it claimed for that
report . The matter was introduced on cross-examination of Ray by Respondent's
counsel, and at that time his stated purpose was to establish lack of candor on Ray's
part in answering a question in his employment application concerning his arrest
record . Ray denied having concealed his arrest record , and attributed his arrests to
"ex-wife trouble ." At this point it was' suggested by the Trial Examiner that it
would seem appropriate to confront Ray with the, wording of the question in the
application and his response thereto. To this Respondent 's counsel stated:
MIKE PERSIA CHEVROLET CORPORATION OF HOUSTON 1409)
I don't know the exact wording, Mr. Examiner, and I wouldn't want to repre-
sent it falsely, but I will have it [the application] here in the morning. -
Ray's application was never produced, nor was the suggestion of lack of candor
on his part in the application pursued any further. Instead, when Respondent
presented its own case, Vice President Conte testified that because of what was in_
the report he would have let Ray go even if Patterson had not discharged him.
Conte was asked whether the fact that Ray had,not been in legal difficulties in the.
years intervening did not have rehabilitating significance. Conte put his answer in
• the negative on the ground of "moral standing in our corporation." But aside
from the failure to reconcile this assertedly serious view of the matter with his
failure to take it up with Ray or even Sales Manager Patterson during the interval
prior to the discharge, there is the additional fact that automobile salesmen in
Houston are licensed by the police department, after an inquiry into the applicant's
police record, and Ray has been thus licensed continuously for about 10 years.
After a short break in 1956 or 1957, when he had permitted his license to expire,
Ray filed a new application and received a new license. This was after the last of
the arrests mentioned in the report alluded to by Vice President Conte. Ray's last
renewal was obtained for him from the police department by Respondent itself
when it employed him in 1960.
The ambiguities and shifts in position concerning the nature of Respondent's re-
liance on the report would seem to stamp it with all the attributes of an afterthought,
and, it would seem fair to state, not fully thought through at that. Illuminating here
would seem to be the further observation in the Ferguson case (257 F. 2d 88 at 93),
as follows:
The Employer [need not] establish a good reason for the discharge, for
the burden is clearly on the general counsel. N.L.R.B. v. McGahey, supra
[233 F. 2d 406 (C.A. 5)]. But insofar as the Employer's theory of motivation
is put forward to persuade that the unlawful motive otherwise tentatively
established by receivable evidence is not trustworthy, the force of such explana-
tion may certainly be tested by the trier in the light of the unanswered as well
as answered queries, the doubts as well as certainties.
The Employer's explanation [here] depends on manifold factors, many elusive
and indefinable; in contrast, the evidence of unlawful action, if credited, is direct
and positive.
Here the "direct and positive" evidence flowing from Patterson's own statements.
and conduct at the time he discharged Ray is additionally reinforced by the back-
ground of Patterson's demonstrated hostility to the union. As in a kindred instance
in Magnolia Petroleum Company v. N.L.R.B., 200 F. 2d 148 (C.A. 5), the opinion
expressed by Ray concerning the proposed discipline to the tardy employee would
seem to have "fanned the smoldering fuse of resentment in [Patterson's] mind
against both [Ray] and the Union into the flash of the explosion which resulted
in [Ray's] discharge." Id. at p. 149. It is found that Ray was discharged for en-
gaging, at the meeting on January 7, in the concerted activity protected by Section
7, of voicing an opinion concerning the proposed discipline' of another employee for
lateness, which rendered the discharge a violation of Section 8(a)(1) (Gullett Gin
Co. and Jackson Tile cases, supra), and additionally because of his activity in sup-
port of the Union in violation of Section 8 (a) (3) and (1) of the Act.
3. The discharge of Stevenson on January 16
a. Events from January 9 to and including January 16, the date of the discharge '
On January 9, the Monday immediately after Ray's discharge, Vice President
Conte called Stevenson into his office from the selling floor and had the conversa-
tion with him alluded to in the preceding subsection. He opened by asking Steven-
son his age. When told it was 53, Conte remarked that Stevenson was "pretty
old" to "get another job if you lost this one," and asked if Stevenson "thought the
union was a good thing." Stevenson said he thought it was, whereupon Conte asked
"what the union wanted." Stevenson replied substantially the "California Contract,"
and at Conte's request, showed him a copy. After glancing at it, Conte told
Stevenson that an effort to organize a salesmen's union in Detroit had failed and
,related that he 'had himself once tried without success to organize a union in New
Orleans. Stevenson suggested Respondent might in any event consider shortening
the tour of night.duty on the selling floor by closing at 9 instead of 10, because
630849-62-vol. 134-90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the extra hour was 'a physical drain uncompensated by any appreciable customer
"traffic." Conte was receptive, and after consulting with General Sales Manager
Patterson, shortened the shift by an hour in accordance with Stevenson's sugges-
tion. The conversation ended with Conte's asking Stevenson to "let up on signing
the men for the union," and Stevenson's saying he "would but if they came to
[him he] would take their application." 5
During a morning meeting of the salesmen held about this time (Stevenson hav-
ing placed it at about a week before his discharge), Sales Manager Robert Eskew,
who presided, openly addressed Stevenson in a "sarcastic" manner as "John L.
Lewis," and asked him how the Union was "coming along." Stevenson had been
addressed that way by fellow employees and he took it rather lightly from them.
He testified he did not think it funny when coming from a representative of man-
agement, and since Eskew had several times before addressed him in that manner
on the selling floor, Stevenson heatedly asked Eskew to stop it.6
During the morning of January 13, 2 days after the Union sent Respondent a
request for recognition and a day after filing the election petition previously re-
ferred to, Stevenson, at the request of the secretary of the Union, did a 2- to 21/2-
hour tour of voluntary picket duty in front of another dealer's premises. Steven-
son had attended the mandatory daily sales meeting that morning at 8, and was
on the team or squad assigned to the afternoon tour of mandatory daily floor duty
at the Respondent's main showroom, which was to begin at 12.7 Sometime that
morning, which was on a Friday, Conte on hearing of Stevenson's presence at a
picket line, drove over to where the activity was taking place and asked Stevenson
whether he ought not go get out of the rain lest he contract "pneumonia" and
be unable to attend to his tour of floor duty at 12, whereupon Stevenson smilingly
reassured him that he would be on the floor at that time.8 Stevenson attended to
floor duty that day. He continued with his duties on Saturday and Monday. Early
Monday afternoon, while he was negotiating a sale with a customer, with whom
he had made contact in the morning by telephone, Stevenson was called into the
office by Conte. According to Conte's version:
I called him in the office and told him that we werent satisfied with his way
of operating, that he wasn't operating according to company policies, and he
5 The foregoing is based on the combined versions of the conversation as given by
Stevenson and Conte Both testified to the discussion of the California contract in sub-
stantially the same manner, and neither denied the added details supplied by the other-
such as Stevenson's testimony concerning Conte's introducing the subject of the Union
by commenting on the difficulty of Stevenson's finding a new job at his age and concluding
with a request to "let up on signing men for the union," with Stevenson's qualified
promise to do so, and Conte's testimony concerning Stevenson's suggestion to shorten
the night tour on the floor, and Conte's receptive response thereto
Stevenson's testimony concerning the incident was undenied by Eskew, who did not
testify, and was not contradicted by any other witness. Respondent's brief refers to Eskew
as "a salesman, who sometimes conducted sales meetings in the absence of Patterson and
Conte " Stevenson's testimony that Eskew was the sales manager, was corroborated by
B. G Hall, a witness for Respondent, who in describing the management representatives
to whom sales are submitted for approval, included Eskew, whom he too described as sales
manager Both indeed testified that there was also an assistant sales manager (Rizzo)
subordinate in rank to Eskew, who, in turn, was next in line of authority to Patterson
Conte, the only representative of management who testified in the case. never disputed the
testimony concerning Eskew's status, as given by Stevenson and Hall, which is hereby
credited.
7 The 15 salesmen at the main showroom are divided into 3 squads or teams of 5 men
each, who, from Monday through Saturday, do floor duty together on any one of three
shifts assigned on a rotating basis-the morning shift from 9 to 12, or that of the after-
noon from 12 to 5, or the night shift from 5 to 9 Each team also does mandatory floor
duty every third Sunday from 9 to 6. Also mandatory is attendance at the sales meeting
every morning, from Monday through Saturday at 8, the one on Friday being the general
one for all three units, and the others being limited to the particular unit or branch.
Another mandatory requirement was that the men send out 10 postal cards a day to
sales prospects.
8 Conte's version departed from that of Stevenson only in respect to what he thought
Stevenson's exposure to the rain might incapacitate him from doing, namely, making
-calls on customers . The probabilities as well as the character of testimonies of Stevenson
and Conte, as later more fully discussed, preponderate in favor of the finding that Conte
put his apprehensions on the basis of the concrete item of Stevenson's impending duties
of that day-his attendance on the floor.
MIKE PERSIA CHEVROLET CORPORATION OF HOUSTON 1411
had too many outside activities, not attending to his, work, and I told him I
was going to let him go.
Stevenson's actual termination was deferred to enable him to complete the sale
and he was paid the commission therefor.
b. Respondent's reasons for discharging Stevenson, and their analysis
1. Guiding principles
It would seem appropriate to precede the discussion of the defense by stating the
guiding principles in an appraisal of Stevenson's case. This is because unlike Ray's
case, where the evidence establishing the illegal motive was direct, Stevenson's case
is the more typical one, where the question is one of the inference warranted by the
totality of the circumstances. On that score, it is to be kept in mind that "manage-
ment can discharge for good cause, for bad cause, or no cause at all." N.L.R.B. v.
T. A. McGahey, Sr., et al., d/b/a Columbus Marble Works, 233 F. 2d 406, 412
(C.A. 5). Indeed the terms "good cause" or "bad cause" have no legally operative
significance under the Act, for the focus of inquiry at all times is the real cause;
and while the term "valid cause" frequently appears in case lore, that too has mis-
leading implications, since any cause or even no cause is valid under the statute,
"as long as it is not for, or in discouragement of such activities as the Act makes
permissible." Magnolia Petroleum Company v. N.L.R.B., 200 F. 2d 148, 149
(C.A. 5). The fact that the cause assigned is "bad" or even that there is no cause
does not establish that the cause was one which the statute forbids. If there is
independent evidence to warrant the inference that the motive was to advance or dis-
courage union activity, then the matter of whether the cause assigned is "good" or
"bad" is not an ultimate subject of inquiry, but merely an evidentiary item bearing
on the weight of the evidence advanced by the employer to offset such inference.
This is so because normally where the reason assigned is "not one for which dis-
charges were ordinarly made" (N.L.R.B. v. Robbins Tire & Rubber Company, Inc.,
161 F. 2d 798, 801 (C.A. 5)), the testimony that that was the real cause does not
carry the kind of persuasion to offset an inference of a discriminatory motive, flowing
from other evidence, which a "good" cause would carry. Ibid. See also N.L.R.B. v.
Jackson Tile Manufacturing Co., 282 F. 2d 90, 92 (C.A. 5). So the nature of the
case assigned is but an evidentiary factor bearing on- the probability of whether it
is the real cause. And the fact of the cause being "good" or "bad" or even that
there was no cause is not absolute in its legal consequences: despite the normal
improbability of a "bad" cause being the real one, nevertheless if the evidence that
it is the real cause, however "bad," carries sufficient persuasion in the particular
instance to offset the inference of discriminatory motivation flowing from other
evidence, the employer must be exonerated. Conversely, a "good" cause, while
starting with the advantage of-its probability as the real cause may retain or lose its
weight on that score, depending upon whether the assertion that it was the real
cause is or is not contradicted or impeached by other evidence. That, at least,
would be my interpretation of the doctrine of the line of cases founded upon
N.L.R.B. v. Tex-O-Kan Flour Mills Company, 122 F. 2d 433, 438 (C.A. 5), as a
guide for the trier at nisi prius in making his de nova findings, which will be followed
here, without concerning ourselves with the disputed question (cf. petition for
certification in N.L.R.B. v. Walton Mfg. Co., 368 U.S. 811, not germane hire, of the
degree of its applicability at a reviewing level. Throughout, it is borne in mind that
"an unlawful purpose is not lightly to be inferred" (N.L.R.B. v. T. A. McGahey, Sr.,
et al!, d/b/a Columbus Marble Works, 233 F. 2d 406, 413 (C.A. 5)), for the
"burden of'proof" is upon the accuser (id. at 411), and "rests continuously on and
does not shift from the [General Counsel] to the Respondent." N.L.R.B. v. Brady
Aviation Corporation, 224 F. 2d 23, 25 (C.A. 5). The evidence that the real cause
was union activity must preponderate over the evidence that it was other than that
and if, upon fair appraisal of all of the proof, the evidence both ways is in even
balance, the General Counsel has not met his burden, and the employer must be
exonerated. '
2. The prima facie case of discriminatory motivation
Our first subject of inquiry is whether the General Counsel's evidence, prima
facie, warranted an inference that Stevenson's discharge had a discriminatory moti-
vation calling for evidence on Respondent's part to offset it. In that connection, we
consider the,usual three elements: (1) the existence on an antiunion motivation,
(2) the employee's prominence in the Union, and the Employer's knowledge of it,
and (3) the casual link between the, motivation, and the discharge.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to motive, there was the general sales manager 's threat on December 9 to dis-
charge 'any salesmen having anything to do with the Union. We have previously
stated that had matters ended with Conte's address, it would fairly have neutralized
the threat and its impact. But management conduct, including that of Vice Presi-
dent Conte, was not consistent with Conte's assurance-as shown by Patterson's
interrogation of Stevenson and comments to Ray in December, his discharge of Ray
on January 7 after denouncing him and Stevenson for soliciting for the Union at the
branches, Sales Manager Eskew's action, in presiding at a sales meeting, in sar-
castically addressing Stevenson as "John L. Lewis" and asking him how the Union
was "coming along," 9 and Conte's calling in Stevenson for a conversation concern-
ing the Union, which he opened by commenting on the difficulty of his getting a new
job at his age and concluded with a request that Stevenson "let up signing men for
the Union." Since Conte did not deny making the statement or the request or
try to explain them, it is difficult to see how Respondent can avoid the force of
these remarks as a veiled threat that the continuance of this activity on Stevenson's
part jeopardized his job, most especially so when made on the heels of the incident
in which Sales Manager Patterson openly denounced him and Ray for engaging
in this activity and expressly assigned it 'as a reason for discharging Ray.
There is no question of Respondent's knowledge of Stevenson's active role in the
Union, as appears from Patterson's statement when he discharged Ray and Conte's
request, made to Stevenson, 2 days later, to let up on signing men for the Union.
Stevenson's doing picket line duty for the Union during the same week in which,
Conte had elicited a promise from him to abate his activities on his part was an
open demonstration of Stevenson's still active interest on its behalf. Stevenson's
discharge coming 3 days later on the asserted basis of his extensive "outside activi-
ties," where the only "outside" activity giving specific meaning to that term was that
which he conducted on behalf of the Union, when taken in connection with the
antiunion motivation disclosed by Respondent's entire course of conduct beginning
with Patterson's in terrorem address of December 9 to the threat implicit in Conte's
introducing the subject of unionism with Stevenson by a reference to the difficulty
of Stevenson's finding a job at his age, warranted the inference that the discharge
stemmed from Conte's disappointment over the results of his conversation with,
Stevenson on January 9, reflected in the latter's picketing for the Union on January
13; and Conte's speech of December 10, before either Stevenson or Ray joined the
Union, reasonably looms as but the reflection of an earlier hope on Conte's part, de-
rived from a background of employee experience of his own in unionism, that the legal
method of economic persuasion would be more effective in forestalling the as yet
undemonstrated interest of the men in the Union thanPatterson's terroristic method,
with Conte's later action reflecting a departure from his original course because of
its apparent ineffectiveness with Stevenson at least. The facts, not otherwise ex-
plained, gave prima facie warrant for the inference that Stevenson's discharge, like
Ray's, was in furtherance of Respondent's antiunion motivation, thus putting Re-
spondent to the necessity of countering it with contrary evidence.
3. The contentions and evidence relied on to meet the prima facie case
Early in the case, during his cross-examination of Union Representative Hofer,
the General Counsel's first witness, company counsel suggested that "Stevenson was
discharged for walking a picket line at Bill McDavid Oldsmobile while he was
supposed to have been . at work at Mike Persia." Conte, on the other hand,
testified that he did not discharge Stevenson because of the picketing incident, but
that the decision to discharge Stevenson, which he made 3 days later, was due to
a "conglomeration." This rather blunted the edge of the dispute between Steven-
son, on the one hand, and Conte, on the other, concerning the degree of leeway
allotted a salesman under company policy, during the portions of the day when
he is not required to be on floor duty, as previously described (supra, footnote 7).
Each would seem to have been marked by what the record fairly indicates was an
overstatement-with Stevenson contending that there was complete discretion and'
Conte contending that between the hours of 9 and 6, from Monday through Satur-
day, there was no discretion whatsoever, and that when a salesman was not on
floor duty he still had to be hustling for sales. These extremes of position must
'be appraised against the fact, as testified by Stevenson and the other salesmen,
that a potential sale may well carry a salesman 's working time, which averages 70'"
9 Cf. N L R.B. v Firedoor Corporation of America . 291 F. 2d 328 (C A. 2), where a like
reference to a person deemed to be a union supporter was noted as evidence of hostility-
bearing upon the motivation for the discharge of that employee.
MIKE PERSIA CHEVROLET CORPORATION OF HOUSTON 1413
.to 75 hours a week, over into the evening , with the implication that some reason-
able play of the joints is allowed a salesman in the allocation of his time when
not on mandatory duty on the sales floor, the latter being the source of 80 to 90
percent of the sales anyway. But the determinative consideration is not whether
the 2 to 21h hours digression from sales' pursuits during this off-the-floor period
was a departure from company policy, as I am satisfied it was, but whether it was
"one for which discharges were ordinarily made." N.L.R.B. v. Robbins Tire &
Rubber Company, Inc., 161 F. 2d 798 at 801 (C.A. 5). On this score, the fair
sense of the record calls for the conclusion that it was not such. The one concrete
illustration of how such a digression is handled was elicited by company counsel
from Salesman B. G. Hall, a witness for Respondent. Hall cited the instance of a
salesman, Gene Alford by name, who had spent partof the day on the golf course,
and when it was discovered, "they called him on the carpet about it," with no sug-
gestion of discharge. It was at this point that Hall gave testimony in accord with
that of Conte, that salesmen even with poor sales records are not discharged but
allowed, as he put it, to "terminate themselves." This indeed was the case with the
golf-playing Alford, who, as Hall testified, continued on the job "until his sales cut
him out." Hall testified that in the 3 years he has been employed by Respondent,
before the discharges of Ray and Stevenson, he knew of no other way that an em-
ployment was in fact terminated than through self-elimination by reason of low
earnings, adding that "they put up with quite a bit down there," and that the turn-
,over is high because many salesmen do not sell enough cars to make a living. The
indications that such a single digression was not a cause for which discharges are
,ordinarily made would be even stronger in the case of an employee like Stevenson,
who, unlike Alford, was not a poor salesman , but a good one, and his employment
by that token was profitable to Respondent. At the time of his discharge, Stevenson
was in the middle, or average category, and during his 3 years' employment with
Respondent, he received a special citation from Chevrolet for sales distinction with
Respondent during 1959, nand "led the board" in March 1960, for the highest num-
ber of sales among Respondent's employees that month. It would seem a fair
measure of Respondent's true regard for Stevenson that in the summer of 1960,
within a month after he left Respondent of his own accord to go with another
dealer, General Sales Manager Patterson specially invited Stevenson to return to
Respondent, which he did. Hence, a contention that Stevenson was discharged
for the single digression, during an off-the-floor period, of 2 to 21h hours, which
inhered in his picketing at another dealer's premises , far from offsetting the inference
of discriminatorly intent flowing from the other evidence, would have had the re-
verse effect, since the disparateness of treatment in discharging Stevenson for an
offense "which was not one for which discharges were ordinarily made" (Robbins
case, supra), when taken in connection with the evidence of antiunion motivation
preceding that event, would be an additional datum of discriminatory intent.10
This would have indicated that the discharge was precipitated not because of the
single digression from sales pursuits inherent in the picketing but because it was a
demonstration of continuing of active union support, contrary to the expectation
engendered by the qualified promise which Conte had elicited from Stevenson in the
conversation concerning the Union on January 9. This brings us to the "conglom-
eration," which Conte testified was the real cause of the decision to discharge Steven-
son, which he made on January 16. Conte, on direct, described the "conglomera-
tion" as follows:
He consistently defied the sales manager as keeping appointments with his
customers in which the sales manager had to close his proposition and deliver
the cars for him and pay him a commission that he did not earn.
He did not carry out the procedure of the corporation making outside con-
tacts, following his prospects, these owners. He didn't do anything of that
nature.
He was continuously drinking on the job, which we don't allow.
For an employee whom Respondent, as late as the preceding summer , deemed
desirable enough to ask to return a month after he voluntarily quit, Stevenson, if
Conte's testimony reflects the true situation, must have undergone a dramatic de-
terioration. One would have expected such mounting delinquencies, if Respondent
10 Cf. N L.R B. v. Jackson Tile Manufacturing Go, 272 F. 2d 181, 182 (C A 5) ; N L R B
v. Shell Oil Company, 196 F. 2d 637, 638 (C A. 5) ; N L.R B. v Fisher Governor Company,
163 F. 2d 913, 916 (C.A. 8) ; N.L R.B v Eastern Massachusetts Street Railway Co, 235
F. 2d 700, 709 (C A 1) ; N.L R.B. v. Kohler Company, 220 F 2d 3, 9 (C A. 7) ; N.L R B. v.
,fadwestern Instruments, Inc, 264 F. 2d 829, 831 (CA. 10).
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
truly thought them to exist; to have prompted some overtures from management to
Stevenson concerning them-some inquiry as to how he could thus have permitted
his performance to run down, or some complaint or warning that he must improve
it. Yet Stevenson's testimony that up to the time of his discharge there was no com-
plaint concerning his work either by Conte, or General Sales Manager Patterson, or
Sales Manager Eskew, was not denied by Patterson or Eskew, who never testified,
and finds further corroboration in the absence of any indication even in Conte's
version of the January 9 conversation, which he initiated with Stevenson, of any dis-
satisfaction with Stevenson's performance. The sole respect in which Conte then
asked Stevenson to alter his course was in his undenied request to "let up on signing
men for the Union," with no claim that this activity was affecting Stevenson's per-
formance, or any complaint concerning the quality of Stevenson's services.
As to the three categories of claimed delinquencies, the second, which related to
outside contacts, derives specific content only from the picketing incident of the
Friday before the discharge, which as previously indicated Conte disclaimed as a
motive, and which taken alone, "was not [an offense] for which discharges were
ordinarily made." On the latter score, it is not denied that Stevenson complied with
the daily requirement of sending 10 postal cards to make outside contacts (supra,
footnote 7), and indeed the very transaction Stevenson was handling at the time that
Conte called him in to terminate his employment was with an outside contact estab-
lished by him. When asked to recapitulate his grounds for his decision to discharge
Stevenson, Conte dropped his reference to the failure to make outside contacts, and
referred only to the claimed disregard of appointments for him by the "sales man-
ager," and to his "continuously drinking on the job." Each is discussed in turn.
On the matter of Stevenson's not keeping appointments with customers, the one
specific instance cited by Conte on his direct examination achieves significance as a
gauge of the defense as a whole because of the importance with which Respondent
vested it, when during cross-examination of Stevenson, before presenting its own
case, it introduced the subject to him.
The transaction concerned the sale of a truck which Stevenson had made in March
1960. The claim of Respondent, as suggested by company counsel on cross-
examination of Stevenson, was that some time after Stevenson sold the truck, the
customer came back asking Respondent to make good on a promise, claimed to have
been made by Stevenson at the time of the sale, that if he should later decide to buy
a certain accessory, in the form of a radio or heater, he would be given the discount
which is normally allowed when purchased at the time as the vehicle; that three times
management made an appointment for Stevenson to speak to the customer and as
many times Stevenson disregarded it, with the result that Respondent finally installed
the accessory for the customer at the reduced price and deducted the difference from
Stevenson's commissions. When counsel introduced the subject to Stevenson, it was
clear from the spontaniety of Stevenson's response and the feeling with which he re-
cited the details on his cross and redirect examinations, that he was more than
unequivocally denying every imputation contained in Respondent Counsel's sugges-
tion: he was turning the attack right back at Respondent Stevenson testified that at
the time of the sale, Sales Manager Eskew had "talked the customer out of [buying
the accessory] on account of making the notes cheaper," and that the first he ever
knew that Respondent had any dealings with the customer after the sale was on the
evening of the Friday preceding his discharge-the day of the picketing incident.
Stevenson testified that at that time he noticed an unexplained deduction from his
commissions which he at once protested to Conte, and that Conte said he knew
nothing about it and suggest he go to the bookkeeper; that he did so, and the book-
keeper, in explaining the deduction, produced an invoice showing that it was in con-
nection with a purchase made in March and an adjustment consisting of installation
of the accessory at the discount price in November, some 6 weeks before the deduc-
tion; that he at once brought the bookkeeper with him to Conte and Patterson to
whom he protested the deduction; that Conte made no response and Patterson re-
plied that "that is the way it was and that is the way it was going to be, no use
arguing." Some measure of Stevenson's feeling, which was quite apparent in his
manner , is reflected in the cold record, in which he recapitulated the situation as
follows:
The WITNESS: And that had been, mind you, this truck was sold in March of
1960, the heater was put in there in November of 1960, and I wasn't told any-
thing about it until about the 14th of January, 1961. [Sic. The day being
Friday, the accurate date was the 13th.]
Stevenson gave this version of. the transaction, thus introduced by Respondent,
the day before Respondent presented its case . What it amounted to, in effect, was
that Stevenson was not only denying that he had made the promise to the customer
MIKE PERSIA CHEVROLET CORPORATION OF HOUSTON 1415
imputed to him or that Respondent had made any appointment for him to see the
customer or had even spoken to him about the matter before making the deduction
on Friday, January 13, but was affirmatively indicating that Respondent had treated
him as blameless in the matter and had itself assumed the responsibility therefor in
consequence of the action of Sales Manager Eskew in "talk[ing] the customer out"
of buying the accessory at the time of the purchase of the truck in order to reduce
the amount of the notes. It is thus particularly important to appraise the manner
in which Respondent presented its own version of a matter which it had itself intro-
duced, and concerning which it had the full version from he person it was attacking.
Respondent did not produce Eskew, and thus the testimony that it was he who had
talked the customer out of buying the accessory at the time of the purchase of the
truck stands undemed. It did not produce Patterson either, and thus Stevenson's
denial that either Patterson or Eskew ever made any appointment for him to speak
to the customer or had even told him of any later visits by the customer after the
sale of the truck stands uncontroverted. It did not produce the bookkeeper, to whom
Conte had referred Stevenson when he first protested the deduction, and so the testi-
mony that the bookkeeper exhibited to him the invoice showing the deduction to have
been in connection with an adjustment made with the customer in November is
undenied. The only witness produced by Respondent concerning the matter was
Conte. He did not deny Steveson's testimony concerning either of the conversations
with him at the time of the deduction, the first with him alone when he told Stevenson
he knew nothing about the matter and referred him to the bookkeeper and the second
with him and Patterson, in the bookkeeper's presence, in which he remained silent and
Patterson put the matter to Stevenson on a take-it-or-leave-it basis.
On direct examination, Conte, departing from his protestation to Stevenson of
ignorance of the matter in the first of his undenied conversations the night of the
deduction, claimed to have been a participant in the transaction culminating in the
adjustment to the customer. He testified that Stevenson was advised three different
times by Patterson and myself" of the appointments with the customer. He gave no
dates, either of the original purchase or concerning the rather crucial matter of the
time lag between the adjustment, which Stevenson testified was shown by the invoice
produced by the bookkeeper to have been in November, or the deduction, which
Stevenson testified was on the Friday preceding the discharge. On cross-examination,
Conte testified the deduction took place when Stevenson was given his "next pay-
check," which, in the light of Stevenson's undenied testimony that this was on Friday,
January 13, would have fixed the transaction with the customer, according to Conte's
version, as having occurred some time that week. This represented a marked dis-
crepancy concerning the lapse of time between the two events as given by him on the
one hand and Stevenson the day before on the other. Such a matter could easily have
been cleared up by producing the invoice, which Stevenson's undenied testimony
indicated was shown him by the bookkeeper in telling him the basis for the deduction.
When the Trial Examiner suggested to Conte that the discrepancy between him and
Stevenson concerning the interval of time between the adjustment to the customer
and the deduction from Stevenson's pay might be cleared up by the Company's
record, Conte first answered rather unresponsively with a singular unawareness for a
person of his quickness of perception of the significance of the discrepancy between
him and Stevenson concerning the time interval After the matter was explained to
him a third time, he denied the interval had been as Stevenson testified, but met the
suggestion that it might be cleared up by company records with a rather ambivalent
response. He at first expressed doubt that the records would show the date of the
installation, explaining that since it was an adjustment of the purchase, the invoice
would only show the date of the original purchase. Then he protested the difficulty
of digging up the invoice showing the transaction. Both aspects of that response
seem as strange now as they did then. First, the claim that the invoice would not
show the date of installation because it was an adjustment of an earlier purchase
hardly squares with the normal expectation that a selling establishment have a record
of when an item of inventory was taken out of stock, even if it was an adjustment of
an earlier purchase-a practice to which Respondent was no exception, as indicated
by the fact that the bookkeeper, according to Stevenson's undenied testimony, pro-
duced the invoice which showed the date of the original purchase in March and the
adjustment in November. Secondly, the asserted difficulty in digging up the invoice,
supported by no claim that an effort to do so had been made, and rather undermined
by the absence of any indication that the bookkeeper had any such difficulty, is
exceeded by the strangeness in letting such difficulty stand in the way of making
every effort to dig it up, whatever the labor involved. This was, after all, a matter
on which Respondent had assumed the attack, with Conte admittedly furnishing
company counsel the basis for his interrogation of Stevenson. Conte thus had the
7.416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.benefit of Stevenson's sworn version of the transaction the day before Respondent
,presented its own case. One would have thought that in anticipation of giving
testimony which he knew would be contrary to that of Stevenson, Conte would have
.fortified himself with the Company's records, which, if supporting him, would have
demolished Stevenson completely. That would have been so even if the invoice con-
cerning the installation showed not the date that it occurred, as Stevenson testified, but
only the date of the original purchase, as Conte testified, for it would have under-
mined Sevenson's credibility in the light of his unequivocal assertion that the invoice
produced by the bookkeeper showed the date of the adjustment with the customer,
as well as that of the original purchase. One would have thought that when its
importance was thus squarely called to Respondent's attention, it would have seized
.at the opportunity to produce its own records. Rather obvious is the established doc-
trine, which common sense compels on us anyway, that the failure of Respondent to
produce its own records of the transaction subjects it to be an adverse inference
concerning what they would have shown if produced. Interstate Circuit v. U.S., 306
U.S. 208, 226, 2 Wigmore, Evidence, § 285 (3d ed. 1940). But I would think it goes
further than that, for the existence and contents of the invoice are affirmatively
established by Stevenson's undenied testimony, received without objection from
Respondent, concerning his conversation with the bookkeeper, to whom Conte had
himself referred him, and the undenied testimony of his protest to Conte and Patter-
son on the basis of what that invoice showed. The record rather compels the con-
clusion that the failure to produce the records and the character of Conte's testimony
concerning their availability and content stemmed from Conte's knowledge at the
start that they fully supported Stevenson, and it rather compels the finding that prior
to making the deduction on January 13, no management representative, neither Eskew
nor Patterson nor Conte had notified Stevenson of any appointments with the cus-
tomer in question or had even spoken to him about it, and indeed, that the deduction
,on January 13 was in regard to a matter concerning which its actions indicated it had
until then held Stevenson blameless.
The effect of the above is a rather pervasive impeachment of Conte. It is difficult
to see how in the light of the above, one can credit his totally unspecified testimony
that Stevenson had ignored appointments with customers on other occasions as
against Stevenson's categorical denial, unchallenged by his two immediate superiors,
Patterson and Eskew, that he had had no prior complaints concerning his work,
and unsupported by any indication in Conte's own version of his talk with Stevenson
.as late as January 9 of any dissatisfaction with his performance. Nor can one, in
the context of the record as a whole, credit Conte's testimony that another part of
the "conglomeration" contributing to his decision to discharge Stevenson was
reports that he had been receiving for some time before the discharge that Stevenson
had been drinking on the job. To keep matters in proper perspective, it must
be noted that Stevenson was no teetotaler and did not claim to be. He kept a bottle
in his car and admitted to take an occasional nip. But if Respondent had deemed
it a deterrent to his employment, he or some representative of management would
.expectably have spoken to him about it at some time preceding his discharge, at the
latest when Conte called him in on January 9. Not only did Respondent not do so
before the discharge, but Conte's own version of the reason he assigned to Stevenson
for his discharge, on January 16, includes no reference to drinking. Indeed, Conte
admitted that despite the reports about Stevenson's drinking, he never spoke to
Stevenson about the matter and asserted that he instructed Patterson to take it up
with him. Yet he admitted he never followed up by asking Patterson whether he
had spoken to Stevenson about it, and from Patterson's failure to testify and Steven-
son's testimony that no management representative had complained to him about
his work, it is a fair inference that Patterson never did so. Conte's testimony that
,contributing to his decision to discharge Stevenson were reports that he had been
drinking on the job is impeached further by the quality of his own testimony con-
cerning the source of the reports and the testimony of the employees produced to
support that claim. Conte testified he first learned of Stevenson's drinking offenses,
variously, "two months," and then "30 to 45 days before [Stevenson] was released"
and this was on the basis of reports from "several of the men." Asked to identify
any one of them, he named Billy Place. The latter, a salesman on the same team
with Stevenson (supra, footnote 7), testified to an incident in mid-December, in
which on observing that Stevenson showed evidence of having imbibed too much,
suggested that he go home for the day, which Stevenson did, and that he told this to
Alsbury, the team "captain" (not a supervisory position), who concurred, since there
were "enough men to take care of the floor and so we wouldn't miss him." Place,
contradicting Conte, testified he never spoke about the matter to any representative
of management nor the latter to him until a few days before the hearing. Nor did
MIKE PERSIA CHEVROLET CORPORATION OF HOUSTON 1417
Alsbury, the team captain . He and Hogsett were the only other employees produced
by Respondent to support the claim that Stevenson 's drinking habits contributed
to the discharge . Alsbury testified that on "one or two occasions " he noticed the
odor of liquor on Stevenson 's breath while on duty but he had never seen him
"in a condition when he showed the effects of the use of alcohol while he was on
duty or supposed to be on duty," and that he had never reported to either Conte or
Patterson concerning Stevenson 's drinking . Hogsett testified that one evening during
the presidential election of 1960 , which would place it at some time preceding
November 7, Stevenson discussed the forthcoming election with fellow employees in
a manner which made him think Stevenson had been drinking , but that he never
reported the matter to either Conte or Patterson , or any other supervisor.
The above rather cogently impeached Conte's testimony that prior to discharging
Stevenson he had received reports of Stevenson 's dunking and that any such reports
entered into his decision to discharge Stevenson . The reasonable conclusion from
the state of the record concerning the matter is that whatever information Conte had
about it was acquired by him after the discharge occurred , and that in his testimony
he predated the time of its receipt in order to include it in the "conglomeration"
which he claimed had brought about his decision to discharge Stevenson. What
Respondent 's policy toward an employee 's weakness in that respect, and under what
circumstances and to what extent it would make it a disciplinary offense is not before
us, since, as would seem rather clear from the state of the record, Conte had re-
ceived no reports concerning the matter before the discharge and the item was not
a factor contributing to the decision to discharge Stevenson.
c. Conclusion concerning Stevenson 's discharge
The "conglomeration ," fairly analyzed, thus comes down to the following: the
claim of failure to keep appointments made for him with customers rested on an
instance in which all the evidence vindicated Stevenson 's denial and discredited
Conte's unsupported assertion ; the alleged reports of Stevenson's drinking are shown
not in fact to have been received by Respondent ; and the failure to make "outside
contacts" derives from the single incident on the morning of Friday, January 13, in
which Stevenson devoted a few hours when free from floor duty to picketing for
the Union. While Conte disclaimed this as contributing to the discharge, the con-
clusion , in the light of the antiunion background which preceded it, is that Steven-
son's discharge was precipitated by that one incident , as indeed , company counsel
at the outset of the case suggested it was. On the issue of whether it was because of
the few hours sales solicitation lost thereby or because it demonstrated Stevenson's
continued active support of the Union , there is the fact , shown by the instance of
Gene Alford, who had spent part of the day playing golf, that such a digression,
even in the case of a poor salesman , was only treated by reprimand , and that these
salesmen , working as they do only on commissions , are not normally discharged, but
are allowed "automatically" to "eliminate" themselves , through the inexorable
economics of not earning commissions . The discharge of Stevenson on the heels
of his picketing activity must be viewed 'against the background of Patterson's open
threat of December 9, followed by a course of conduct in the reverse direction of
Conte's assurances of December 10. These include Patterson 's interrogation of
Stevenson a week after he joined the Union , of whether he had done so, the hostility
exhibited by Sales Manager Eskew in his sarcastic references to Stevenson as "John
L. Lewis," the open denunciation by Patterson of Ray and Stevenson for soliciting
salesmen at the branches at the time he discharged Ray, and Conte's calling Steven-
son in the next business day, and opening a conversation with him concerning the
Union, with a reference to the difficulty of his finding a new job at his age, asking
him his opinion of the Union , and closing it by eliciting from Stevenson a qualified
promise that he would "let up" on signing men for the Union. The record rather
preponderantly points to the inference that Conte's displeasure over Stevenson's
picketing for the Union was due to the frustration of his expectation , derived from
his conversation with Stevenson on Monday , that he had succeeded in dulling the
edge of Stevenson 's interest in the Union . Respondent 's own showing, instead of
offsetting the inference of discriminatory intent , must fairly be said to have re-
inforced it. Conte's reference to Stevenson 's "outside activities ," which on his own
version he gave Stevenson as a reason for the discharge, derives content from the
only kind of such activity which the record shows Stevenson to have been engaged-
support of the Union . Nor, in this instance , can we avoid taking cognizance of the
discredited reasons assigned for the discharge for their significance beyond the
impeachment of the defense : under established doctrine , a contrived reason betrays
an intent to conceal the true reason and lends added strength to an inference other-
wise warranted that the true reason was the forbidden one. Cf . N.L.R.B. v. C & I
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Camp, Inc., et al., d/b/a Kibler-Camp Phosphate Enterprise, 216 F . 2d 113, 1,15
(C.A. 5); N.L.R.B. v. International Furniture Company, 199 F. 2d 648, 650
(CA. 5).
The conclusion , based upon the preponderance of the evidence taken as a whole,
is that Respondent , on January 16, discharged Stevenson because of his prominence
in support of the Union . Thereby Respondent discriminated against Stevenson in
order to discourage membership in the Union, in violation of Section 8(a) (3), and
interfered with, restrained , and coerced employees in the exercise of their rights
under Section 7, in violation of Section 8 (a) (1) of the Act.
D. Conclusion concerning violations of Section 8(a)(1) other than the discharges
In the circumstances disclosed, Respondent invaded the protected rights of its em-
ployees, in violation of Section 8(a) (1), through Patterson's threat of discharge on
December 9, his interrogation of Stevenson on about December 21 concerning
whether he had joined the Union and what went on there, his denunciation of Steven-
son, along with Ray, on January 7 for his union solicitation activities at the time
he discharged Ray, and Conte's conversation with Stevenson on January 9, in which
he asked him to "let up" on signing men for the Union on the heels of a veiled
threat of jeopardy to his job for engaging in union activity, and an inquiry concern-
ing his attitude toward the Union.
IV. THE REMEDY
The facts as found call for the usual cease and desist requirement, here of a broad
character because of the pervasive opposition to employee self-organization demon-
strated by the course of conduct, and the conventional offer of reinstatement of Ray
and Stevenson to their former or substantially equivalent positions, without prejudice
to seniority or other rights and privileges (The Chase National Bank of the City of
New York, San Juan, Puerto Rico Branch, 65 NLRB 827, 829), with reimbursement
for loss of pay sustained by reason of the discrimination against them, in accordance
with the formula enunciated in F. W. Woolworth Company, 90 NLRB 289.11
Upon the findings` above and the entire record, the Trial Examiner hereby makes
the following:
CONCLUSIONS OF LAW
1. By discriminating in respect to the hire and tenure of William Ray and Cecil
H. Stevenson in order to discourage membership in the Union, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
2. By the above and by discharging William Ray also because he engaged in the
protected concerted activity of expressing an opinion concerning the proposed disci-
pline of an employee for lateness, and by threat of discharge for engaging in union
activity, and by interrogation of employees, in the circumstances of this case, con-
cerning their activity and interest in the Union, Respondent has interfered with,
restrained, and coerced employees in the exercise of their rights as guaranteed by
Section 7 of the Act, thereby engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
3. The foregoing unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
11 We have heretofore treated the defense that even if Patterson had not discharged
Ray, Conte would have done so at a later time on the basis of the record of his arrests
preceding 1956. At the hearing, evidence was given concerning remarks made by Ray to
certain employees the evening after he was discharged, uncomplimentary to Patterson and
Conte and unprintable in character. The remarks climaxed an alcoholic binge on which
Ray had embarked from the moment of his discharge that morning He had no recollec-
tion of his statement. Respondent does not dispute that Ray was totally "plastered" at
the time, and its brief neither refers to nor, so far as appears, places any reliance upon
that occurrence.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
BOWMAN TRANSPORTATION, INCORPORATED 1419
WE WILL NOT discharge or otherwise discriminate against any employee in
order to discourage membership in Retail Automobile Salesmen Local No. 501,
affiliated with Retail Clerks International Association , AFL-CIO, or in any
other labor organization , or in reprisal for engaging in activity protected by
Section 7 of the National Labor Relations Act.
WE WILL NOT threaten employees with discharge or other reprisals because
of their union activities.
WE WILL NOT coercively interrogate employees concerning their affiliation
with, activity in support of, or interest in the above or any other labor
organization.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right of self-organization , to form labor organi-
zations, to join or assist Retail Automobile Salesmen Local No. 501, affiliated
with Retail Clerks International Association , AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , as guaranteed in Section 7 of the
National Labor Relations Act, or to refrain from any and all such activities.
WE WILL offer to William Ray and Cecil H. Stevenson reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority
or other rights and privileges , and we will make each of them whole for any
loss or pay suffered as a result of his discharge.
All our employees are free to become or remain or to refrain from becoming or
remaining members of Retail Automobile Salesmen Local No. 501, affiliated with
Retail Clerks International Association , AFL-CIO , or any other labor organization.
MIKE PERSIA CHEVROLET CORPORATION
OF HOUSTON,
Employer.
Dated------------------- By--------------;----------------------------(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Bowman Transportation , Incorporated and W. O. Mann , Emmett
F. Garrett , Jr., and Henry Grady Reeves, Jr. Cases Nos. 10-CA-
4462, 10-CA-4462-2, and 10-CA-4462-3. December 20, 1961
DECISION AND ORDER
On April 21, 1960, Trial Examiner Henry S. Sahm issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8(a) (1) and (3) of the National
Labor Relations Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a support-
ing brief.
Pursuant to the Provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
134 NLRB No. 146.