Padre Dodge

National Labor Relations Board - Board Decisions

Mar 29, 1971

189 N.L.R.B. 378 (N.L.R.B. 1971)

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Padre Dodge and International Association Of Ma- Goodman and thereafter issuing the appropriate
chinists and Aerospace Workers , AFL-CIO
Padre Dodge and International Association Of Ma-
chinists and Aerospace Workers , AFL-CIO Peti-
tioner . Cases 21-CA-9028 and 21-RC-11649
March 29, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On September 29, 1970, Trial Examiner Leo F.
Lightner issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
affecting commerce and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He also found that certain employees were
eligible to vote in a Board-conducted election held on
April 21, 1970, and recommended that Case
21-RC-11649 be severed and remanded to the
Regional Director for opening and counting their
challenged ballots and for issuing an appropriate
certification. Thereafter, the Respondent filed excep-
tions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Padre Dodge, San Diego, California,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.2
IT IS FURTHER ORDERED that Case 21-RC-1 1649 be,
and it hereby is severed from this proceeding and
remanded to the Regional Director for Region 21 for
the purpose of opening and counting the challenged
ballots of Frank Daily, Gerald Dowden, and Stephen
certification.
I Chairman Miller would not adopt the Trial Examiner 's finding that
the reemployment of Daily, who had previously been unlawfully
discharged , did not constitute full reinstatement within the meaning of the
Act In this regard the record shows that Daily was offered employment on
March 15, 1970, that on reporting to work the following day he insisted he
wanted his seniority and insurance reinstated , and requested a loan of $200
against his vacation pay He received no immediate reply on these matters
but, nevertheless, went to work that day and also the following day Then,
assertedly because no reply was yet forthcoming on the above matters, he
left Respondent 's facility and did not return In Chairman Miller's view,
there is no basis for finding that Respondent ' s offer of employment to
Daily was either expressly or impliedly conditioned on Daily's surrendering
any of his previous rights and privileges Furthermore , Daily's precipitous
quitting the day following his reemployment prevented any resolution of
the questions he had asked concerning his reinstatement which questions
he had also intertwined with a request for a $200 loan In these
circumstances and as there is no evidence that Respondent in offering
Daily reemployment was not acting in good faith , Chairman Miller would
find insufficient proof that Respondent 's offer of reemployment was not
"reinstatement" under the Act Thereafter, Daily voluntarily quit In view
of his conclusion here , Chairman Miller would find that Daily was not
eligible to vote in the election held among Respondent 's salesmen on April
21, 1970, and uphold the challenge to his ballot As the remaining
challenged ballots could not affect the election results , Chairman Miller
would not remand the representation case to the Regional Director but
would issue a Certification of Results of Election
2 In footnote 50 of the Trial Examiner's Decision substitute "20" for
"10" days Members Fanning and Brown agree with the Trial Examiner,
essentially for the reasons he stated , that Daily was not properly reinstated
When Daily advised President Calabrese that he wanted his seniority,
insurance , and vacation eligibility reinstated-rights to which he was clearly
entitled-Calabrese told him only to discuss these matters with his team
captain We do not think that there was any reason to temporize on these
matters and are unwilling to find , as does our dissenting colleague , that this
conduct is consistent with a bona fide reinstatement after a discriminatory
discharge Nor does it matter that these rights were intertwined with the
request for a loan it would have been perfectly simple for Calabrese to
have disposed of the critical matters and reversed the loan issue In these
circumstances Members Fanning and Brown see no reason to disturb the
Trial Examiner's finding
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F LIGHTNER, Trial Examiner: This proceeding was
heard before me in San Diego, California, on June 3 and 4,
1970, on the complaint of General Counsel, as amended,
and the answer, as amended, of Padre Dodge, herein called
the Respondent .' The complaint alleges violations of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the Labor
Management Relations Act, 1947, as amended , 61 Stat.
136, herein called the Act Resolution of the validity of the
challenges to ballots is set forth infra. The parties waived
closing argument, and briefs filed by the General Counsel,
Respondent, and Charging Party have been carefully
considered.
Upon the entire record, and from my observation of the
witnesses I make the following:
' A charge was filed on February 19, 1970 A complaint was issued on
April 2, 1970, and amended at the outset of the hearing herein Pursuant to
a Decision and Direction of Election , issued by the Regional Director for
Region 21 , on March 18, 1970, and election was conducted on April 21,
1970 Three challenged ballots were cast On April 29, 1970, the Regional
Director , finding the challenged ballots to be sufficient in number to effect
the results of the election and finding further that the determination of
whether the individuals who cast said ballots were discriminatorily
189 NLRB No. 55
PADRE DODGE
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer does not deny, and I
find that Respondent is a California corporation, engaged
in the retail sale of automobiles and of related parts and
service at 3550 El Cajon Boulevard, San Diego, California.
By reason of its normal course of operations, Respondent
annually, a representative period, has a gross volume of
sales in excess of $500,000 and annually purchases and
receives in excess of $50,000 worth of automobiles and parts
directly from sources outside the State of California.
The complaint alleges, the answer does not deny, and I
find that Respondent is, and at all times has been, an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union , is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The principle issues raised by the complaint and answer,
and litigated at the hearing, are: (1) whether the
Respondent engaged in conduct constituting interference,
restraint , and coercion, thus violative of Section 8(a)(1) of
the Act by (a) President Calabrese unlawfully interrogating
employees as to their union activities, (b) President
Calabrese unlawfully interrogating employees as to the
union activities of other employees, (c) President Calabrese
or General Sales Manager Drew threatening employees
with discharge if they discussed the Union with anyone in
the future, (d) President Calabrese advising employees that
Respondent had never been unionized and never would be,
(e) President Calabrese informing employees that anyone
who joined the Union would be terminated, or (f) President
Calabrese advising employees that he had a list of those
employees active in the Union (the allegations of subpara-
graphs (a), (b), (e), and (f) allegedly occurred during the 3-
week period preceding January 28 and a 1-month period
following January 28, 1970, while the allegations of
subparagraph (c) are alleged to relate to January 30 and 31
and the I-month period following January 28, and the
allegations of subparagraph (d) are alleged to relate to
January 30 and the 1-month period the following January
28); or (2) whether each or any of the discharges and failure
thereafter to reinstate the following named employees was
discriminatorily motivated, thus violative of the provisions
discharged would be decisive of said challenges, issued on Supplemental
Decision and Order directing a hearing and consolidation of cases
2 We are not herein concerned with other divisions or departments of
Respondent's operation, i e , service, parts, auto body repair, office, etc
3 Drew, who was not employed by Respondent at the time of the
hearing herein , did not appear as a witness Respondent advanced no
reason for its failure to produce Drew
While Calabrese referred to a Dave Campbell as general sales manager
on March 15, 1970, the dates of Drew's separation, and Campbell's hiring,
379
of Section 8(a)(3) and (1) of the Act: (a) Stanley R. Manard
on January 29; (b) Frank W. Daily on January 30; (c)
Gerald Dowden on January 30; or (d) Stephen Goodman
on February 12, 1970. Respondent, by answer, denied the
commission of any unfair labor practice.
The issues raised by reason of the action of the Regional
Director, on April 29, 1970, in finding that the ballots of
Daily, Dowden, and Goodman, three alleged discrimina-
tees, all of whom cast challenged ballots, in the aggregate
are sufficient in number to affect the results of the election,
are set forth and considered infra.
Supervisory Personnel
The complaint alleges, the answer admits, and I find, that
Joseph Calabrese, president and general manager, and
Kress Drew, general sales manager, at all times material
herein, were agents of Respondent and supervisors within
the meaning of Section 2(11) of the Act.
Background
Calabrese has been majority stockholder since the
commencement of Respondent's business activity on July
1, 1965. Relative to its sale of automobiles and trucks,
Respondent operates through a general sales manager, a
new-car sales manager , and a used-car sales manager.2
Joseph R. Kirkendall was general sales manager from
approximately March 1969 until January 12 or 13, 1970. He
was succeeded by Kress Drew, who, according to
Calabrese, reported for duty on January 26, 1970.3 Ronald
Stunich was new-car sales manager from January 2 until
May 29, 1970. Dan Cono was used-car sales manager;
however, his period of employment is obscure and of no
importance
It is undisputed that the Union began an organizing drive
of the automobile salesmen in the San Diego area in August
1969. Among other activities, the Union placed advertise-
ments in the local newspapers in November and December
advising of scheduled organizational meetings for all auto
salesmen in the area. Kirkendall acknowledged that, as a
result of the union activities and particularly as the result of
a note on a bulletin board at Respondent's facility which
read, "Union meeting next Thursday night. Free Booze," in
the latter part of December 1969, he stated, at a sales
meeting, that it was his personal opinion that unions would
not be beneficial to professional salesmen but possibly a
professional organization of salesmen would. While
comments of this type may have occurred on more than one
occasion, it is not alleged that anything said by Kirkendall
was violative of the Act. However, these facts do establish
Respondent's knowledge of the Union's efforts to organize
its salesmen.4
Goodman credibly related that, at a meeting of
are obscure and unimportant
4 Having denied knowledge of the union organization, on direct
examination , Kirkendall , on cross-examination , sought to characterize the
note relative to the union meeting as a "joke," purportedly left so that he
could see it He then acknowledged that this was the first knowledge he
had that "my men were involved " and that they were "going now for a
union instead of an association " Kirkendall was thus self-contradictory
and incredible
Kirkendall asserted it was his concern of the possibility of union
(Continued)
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's salesmen, which followed a regularly sched-
uled meeting of all salesmen at the union hall on January
20, Warren H. Lindsay, business representative and
organizer of the Union, advised those employees of
Respondent who were present that they should have an in-
plant organizer, with whom he could maintain contact. As a
result Goodman was elected as in-plant committeeman.
While there is no evidence that the Union's letter, advising
Respondent of this fact, was ever received, if mailed, it is
undisputed that Goodman exhibited a copy of the letter to
Elda Coe, who communicated the fact of Goodman's
appointment to Calabrese.5
Goodman credibly related that a meeting of Respon-
dent's auto salesmen employees was held at the Palomar
Club on Wednesday, January 28, 1970, at which time 14
employees signed union authorization cards, including
Daily, Manard, and Dowden, alleged discriminatees
herem.6 Calabrese acknowledged being advised of this
meeting by some of Respondent's salesmen who advised
him, in Calabrese's words, "Jeez, `they had a big meeting
last night at the Palomar Club' or the night before;
something like this." Calabrese then asserted that he did
not pay too much attention and did not know where the
Palomar Club was, but did know what the union was that
was referred to.7
Interference, Restraint, and Coercion
William T. Baugh Jr., was employed by Respondent from
March 1969 until approximately March 20, 1970, as a new-
car salesman. Baugh indentified Calabrese as the owner
and president of Respondent. Baugh related that he
attended the meeting at the Palomar Club, which I have
found occurred on January 28. The following morning,
right after the sales meeting, which the record indicates
usually terminated at approximately 9:30 a.m., Baugh was
called to the office of Calabrese. Calabrese advised Baugh
that he understood that Baugh had gone to the union
meeting and had signed an authorization card the prior
evening. Baugh related that he responded with an
equivalent of "So what," and that Calabrese then advised
"There will be no union now or ever at Padre Dodge."
Calabrese adivsed Baugh that unions were no good for
automobile salesmen, and related an organizational
attempt made several years earlier and how it failed.
Calabrese also advised Baugh that if he wanted to continue
in the car business he should forget about the Union.
organization which motivated his discussing this possibility with Calabrese
Kirkendall 's assertion that Calabrese told him not to worry , that if the
Union ever came in to San Diego every automobile dealer would be
organized and it would not hurt or benefit Respondent one way or the
other, I find implausible and incredible
However , since it is undisputed that Kirkendall terminated his
employment with Calabrese on January 12 or 13, it follows that his
conversations with Calabrese were prior to that date Calabrese 's assertions
of lack of knowledge of the Union's organizing efforts are thus refuted by a
witness called by Respondent
5 Coe, who appeared as a witness for Respondent, described her
position as business manager in January and February 1970 Coe related
that Goodman handed her a letter at work at II o'clock on a Saturday
morning She noted the heading on the letter said something about a union
and handed it back to him advising she was not interested Goodman
advised her that she should be because it would be for her betterment as an
employee I find it reasonable to infer that this event occurred on January
24, 1970
Calabrese then asked Baugh if Goodman, or anyone else,
had ever confronted him about joining the Union, to which
he responded in the negative. Baugh asserted that
Calabrese advised him not to tell anyone what went on
during the conversation or what was said. Baugh asserted
he responded by advising Calabrese that he was not a
member of the Union, that he did sign a card, and that
there were two sides to an issue and Baugh thought it would
be foolish just to listen to one side and not find out
something for himself. Baugh related that Calabrese
advised him, "You can make it difficult for yourself in the
car business if you continue talking about the Union."
Baugh asserted this was said in a manner to imply that if he
continued his interest in the Union he would not be
working for Respondent.8
Elvis L. Burdett was employed by Respondent from June
8, 1969, to until approximately May 15, 1970, initially as a
used-car salesman and later as a combined new- and used-
car salesman. Burdett attended the meeting of Respon-
dent's employees at the Palomar Club, at which time he and
the others present signed union authorization cards.
Burdett credibly related that, approximately 2-1/2 weeks
after the Palomar Club meeting, he was called to
Calabrese's office by Calabrese. Calabrese greeted him
with, "I hear you have been looking for another job at
Tower Motors." Burdett responded that he had not been
looking for another job, and if he were he would not be
going there, but he was not planning on leaving Respon-
dent's employment. Calabrese then advised Burdett that he
heard that Burdett and Stratton, another salesman, had
been looking for jobs at Tower Motors. Calabrese then
advised Burdett, "Well, I wanted to talk to you about this
union business. I know that you are on the union list. In
other words, that your name is on the list, and I know
everybody else's name that is on the list also. I don't
understand why you are getting involved in union
business." Burdett related that he advised Calabrese that he
had gone to the meeting at the Palomar Club, that this was
the first meeting he had attended, that he did sign an
authorization card, and that he just wanted to find out what
the Union was all about. According to Burdett, then
advised, "I just wanted to talk to you and let you know that
you are not going to lose your job because of it, but, I could
let you go. I have sufficient reason to fire you, but I will
not." Calabrese then cited an instance where Burdett
allowed a potential customer to leave Respondent's
Calabrese acknowledged that he learned of Goodman's appointment as
committeemen from his business manager , Coe, "in the latter part of
January " Accordingly, I do not credit the denial of knowledge by Coe
6 Calabrese asserted the total sales force, inferentially exclusive of
supervisors, on January 26, when Drew assumed his duties, was comprised
of 15 or 16 salesmen
William T Baugh , Jr, a salesman, asserted that all but one of the
salesmen were present He corroborated the assertion of Goodman that
everyone signed a union authorization card
7 Thus Calabrese was self-contradictory, having asserted on direct
examination that it was not until January 30 or 31 that he learned of the
Palomar Club meeting on January 28
Calabrese also acknowledged that, in late December 1969, he saw one of
the Union 's advertisements which he described as the first evidence he
actually had that the Union was involved
8 While Calabrese testified extensively, he was not questioned and did
not deny the assertions of Baugh, who demeanor I find impressive, and
whom I find credible
PADRE DODGE 381
premises without turning the customer over to another
salesman, as he was required to do, as justification for a
potential discharge. Calabrese then advised Burdett that the
Union would never get into Respondent's facility as far as
he was concerned, that they had tried several times several
years ago to get into San Diego and had failed, and that as
far as Calabrese was concerned they would never get in .9
Frank W. Daily was employed by Respondent during
various periods commencing November 1966 until he was
discharged January 30, 1970, allegedly discriminatonly.
During his last period of employment he was a new-car
salesman. Daily was a member of the San Diego
Automobile Salesmen Association, which he described as
an organization of salesmen in the San Diego area for the
purpose of attempting to improve their compensation and
working conditions, among other things. Daily related that,
in August 1969, members of the Association took a vote
and decided to contact a union, thus initiating the effort of
the Union herein.
Daily related that he had two conversations with
Calabrese, both in Calabrese's office, one between
Christmas and New Year's and the other in mid-January.
In the earlier conversation, Calabrese inquired if Daily
knew any of Respondent's salesmen who belonged to the
Union, to which Daily responded in the negative. Calabrese
then asserted, "Well, I just wanted clothes for you."
Calabrese then advised Daily that if he heard or knew of
anybody who belonged, or was a member of the Union,
they would find themselves "going down the road looking
for a job." Daily asserted that, in his second conversation
Calabrese inquired whether Daily could give him the names
of any of Respondent's salesmen who belonged to the
Union. Daily related that he responded that none of the
other salesmen confided in him because he had worked for
Calabrese too long. Calabrese then requested that Daily
advise Calabrese if he learned of any of the sales men
belonging to the Union "because they would no longer be
working there." io
Stephen A. Goodman credibly related a conversation he
had with Calabrese in the latter's office on January 30,
1970, immediately after the sales meeting, or at approxi-
mately 9:30 a.m. Calabrese advised Goodman, "I under-
stand that you have been bothering the salesman tojoin the
union." Goodman denied bothering anyone, and asserted
that some of the salesmen had asked him questions which
he had answered. Calabrese then asserted that two
employees had come to him and advised him that
Goodman was bothering them about the Union. Goodman
reasserted that he merely answered questions and did not
9 Calabrese was not questioned about and did not deny this recitation
of Burdett, whom I find credible
10 Calabrese initially denied knowing that Daily was in any way
engaged in the organizational activities of the Union at Respondent's
facility He then asserted that he did learn that Daily had been to the
Palomar meeting on January 28, 2 or 3 days after Daily was discharged
Calabrese specifically denied having any conversation with Daily
relative to union activities and denied threatening Daily with termination if
he became involved in union activities, or advising Daily that anyone who
became involved in union activities would be discharged To the extent the
testimony of Daily is at variance with that of Calabrese, I credit Daily
11 Goodman asserted that Calabrese had used the expression "down the
road' at a sales meeting indicating that by it he meant the individual
would not be working for him any longer
12 Calabrese asserted that he flrst>learned of the union organizing effort
believe he had bothered anyone. Calabrese then advised
Goodman, "You are welcome to stay here as long as you
sell cars, but as far as the Union goes, I don't want you
bothering my salesmen about it, and if you can't do this you
are down the road." Goodman responded that he would
not bother anyone. ii Goodman credibly related that during
his conversation with Calabrese, on January 30, Calabrese
advised, "Padre Dodge has never been union, and never
will be union, and I don't care what your feelings are about
it." Goodman was also advised not to be a "rabble
rouser" 12 and that if he did not desist he would be "down
the road."
Immediately following his conversation with Calabrese,
Goodman was called into the office of General Sales
Manager Drew. According to Goodman, Drew advised him
that Drew knew that Goodman hadjust finished talking to
Calabrese. Drew advised Goodman that he believed that
Goodman was a good salesman and that Drew needed his
production. Drew then asserted, "But, I have got to have
your word that you are not going to cause any trouble there
[sic] with this Union." Goodman asserted that he
responded that he was not going to cause any trouble as far
as bothering salesmen, but he still believed that the Union
would be the best thing that could happen. Goodman then
advised Drew that he would not bother anyone during
working hours about joining the Union. Goodman
acknowledged that Drew also advised him, "You are here
to sell cars, and that is all you are here to do when you are
working." Goodman acknowledged no reference was made
to his free time or off-duty time.13
Goodman related that the following day, Saturday,
January 31, immediately after the sales meeting at
approximately 9:30 a.m., Calabrese again called Goodman
into Calabrese's office and advised Goodman that this was
his last warning; that two salesmen had again advised
Calabrese that Goodman was bothering them. Goodman
denied the accusation. Calabrese advised Goodman that as
far as Calabrese was concerned it was the truth. Calabrese
then became vulgar and advised Goodman what Calabrese
would do if Calabrese were a salesman . Calabrese also
advised Goodman "It has been tried before, to organize the
Union, and all attempts have failed. I can give you an
example of one salesman whose brother worked at some car
agency, and the last time they tried to push the Union he
got booted out and he had to go up to Alaska to get a job. If
I fire you, you won't be able to get a job in San Diego, in
Los Angeles, or San Francisco. I went to a dealers
association meeting last night, and the word is out already
not to hire any salesmen from Padre Dodge." Goodman
about January 30 or 31 in his words, "When Goodman was running
around the showroom in the office with a letter appointing him as the shop
steward "
Calabrese acknowledged calling Goodman into his office and advising
Goodman that he had had numerous complaints from salesmen and from
people in the office that Goodman had a letter saying he had been
appointed shop steward for the Union and that he was telling people that
Padre Dodge was going to go Union, "And I told him what he did . .
that he wasn't allowed to take and show that letter around Padre Dodge
and that as far as I was concerned what he did on the outside was his own
business , and what he did during working hours was my business." I find
no denial of the recitation of Goodman in the assertions of Calabrese, and
accordingly credit Goodman I also credit Calabrese's embellishment
13 1 have found, supra, that Drew did not appear as a witness
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then related that Calabrese also advised him that Goodman
was "the reason that a lot of good men have been fired
around here lately." 14
Discharge of Dowden-January 30, 1970
Dowden was employed by Respondent on June 14, 1969,
initially as a new-car salesman for approximately 2 months,
then as a used-car salesman until his discharge on January
30, 1970. Dowden attended the union meetings of January
20 and 28. Between the two meetings he did discuss the
Union with some of the employees and, upon inquiry,
advised some of them of the latter meeting. Dowden signed
a union authorization card at the meeting at the Palomar
Club and corroborated the assertion of Goodman that 14 of
Respondent's salesmen employees signed authorization
cards that same night. Dowden credibly related that on
Thursday, January 29, he was not scheduled to work. He
attended the sales meeting on the morning of January 30,
returning at 3 p.m. for his 3 to 9 p.m. shift. About an hour
after Dowden reported at work, or approximately 4 p.m.,
General Manager drew called him to his office and advised
him, "I'll have to let you go." Dowden inquired as to the
reason and was advised by Drew, "It is your attitude. I will
have your check ready in a few minutes." When Dowden
left Drew's office, Drew followed him to the outside of the
building where Drew advised Dowden. "I worked for a guy
just like you do. I am sorry. So if I can help you out later,
just let me know." Dowden asserted he then talked to Dan
Cono, used-car manager, and advised Cono that he had
been fired. Cono responded, "Well, I expected that because
Mr. Drew told me to fire you yesterday and I told him to
fire you himself because he couldn't give me a reason to fire
you. You know why you are being fired. I am not going to
come right out and say it, but you are not by yourself.
Goodman is the next one to go." 15
Discharge of Daily-January 30, 1970
It is undisputed that Daily was initially hired by
Respondent in November 1966, he left Respondent's
employment on several occasions for varying brief periods
of time, and his last period of employment commenced in
July 1969 and terminated on January 30, 1970.16 Daily
attended the meeting at the Palomar Club on January 28
and signed a union authorization card at that time. The
following day, Thursday, was his day off. On that day he
14 This occurrence was the day after the discharge of Daily and
Dowden, considered infra
Calabrese acknowledged talking to Goodman on two different
occasions, but denied saying anything to Goodman about union activities
Calabrese followed this with, "I told him what he did on the job with-that
it was my business and what he did off the job was his business, but I just
wanted him to get back to work selling cars" Asked if he threatened
Goodman in the event Goodman engaged in union activities on
Goodman's free time, Calabrese responded he couldn't specifically say he
did or did not Calabrese then denied threatening Goodman with
termination for union activities
To the extent the testimony of Goodman is at variance with that of
Calabrese, I credit Goodman.
15 In what may be considered corroboration of Dowden's assertion of
the recitation of Cono, Burdett asserted that he was advised by Cono, the
day before Dowden was discharged, that Cono had been advised by Drew
to discharge Dowden, but Cono was not discharging Dowden because he
had no reason
played golf with Calabrese and Stunich, new-car sales
manager, at the Stardust Country Club. While in the
lockerroom after the game, Daily requested and obtained a
loan of 5 from Calabrese, who advised Daily that Calabrese
knew who the "instigator" of the Union, at Respondent's
facility was. During the golf game nothing was said by
either of the supervisors to alert Daily that his job was in
jeopardy, although Daily acknowledged that Calabrese did
inquire as to when Daily was "going to get off my rear end
and start to work." The following morning Daily attended
the sales meeting, and immediately thereafter Stunich
called him into Stunich's office and advised Daily, "Well, I
will have to leave you go. I hate to do it." Daily inquired as
to the reason, and was advised by Stunich that General
Manager Drew advised him to discharge Daily. Daily then
related that he was advised that the reason for his discharge
was lack of production.i7
The Discharge of Manard-January 29, 1970
Stanley Rod Manard was employed by Respondent as a
salesman during periods from February to April, and again
for 2 weeks in July 1969. We are herein concerned with his
employment which commenced approximately December
1, 1969, terminating January 29, 1970, initially as a used-car
salesman, then commencing December 6 as finance
manager or credit manager, in which position he continued
until January 27, 1970.18 Manard succeeded Don Smith as
finance manager, and Smith thereupon became a salesman.
Manard attended both of the union meetings in January
1970, described supra, and signed a union authorization
card at the Palomar Club meeting. Manard asserted that,
on January 27, the day after Drew became general sales
manager, Drew inquired if he had any experience on the
desk, and advised him that Drew was going to be needing
another sales manager, and thought Manard might be the
one he wanted. Drew then advised Manard that he would
like Manard to go back to selling automobiles and that he
would place Don Smith back on the job of finance
manager, as Smith was not doing anything, in terms of
selling automobiles, on the floor. Manard indicated
agreement with Drew's request. January 28 was Manard's
regular day off, and he attended the union meeting that
evening. On the 29th he worked as a used-car salesman
from 9 a.m. until 5 p.m., when Drew called him to Drew's
office Drew greeted him with a question. "Calabrese got
any reason to be pissed off at you?" Manard denied
Neither Cono nor Drew appeared as witnesses , and Respondent offered
no explanation of its failure to produce them Calabrese, who
acknowledged ordering the discharge of Dowden, was not present during
the discharge interview or the succeeding events Respondent's varied and
inconsistent explanations of the reasons underlying the discharge of
Dowden are considered infra
16 His alleged rehiring and separation in March 1970 are considered
infra
IT I have found, supra, that Drew did not appear as a witness, and no
explanation was offered by Respondent as to its failure to call him
Calabrese's explanation of the underlying reason for discharge of Daily,
asserted Respondent's defenses for that action, and Stunich's recitation, are
set forth and considered, infra
18 It appears undisputed that the position of finance manager or credit
manager, as related by Manard, encompassed the writing of sales
contracts, the obtaining of down payment loans and other credit
undertakings and the sale of life, accident, health , and credit insurance
PADRE DODGE
knowledge of any conflict. Drew then inquired if Manard
had had any sort of an argument with Calabrese, and
received a negative response Drew then advised Manard,
"Well, he doesn't want you around." Drew then advised
Manard that he had been serious about offering Manard
the job of sales manager, that Drew had no idea that
Manard's discharge was going to happen, and that he felt
bad about it. Drew advised Manard not to tell anyone
about it or discuss it and especially not to say that
Calabrese wanted him fired or did not want him around,
advising Manard that if he disregarded this advice Drew
would deny such an assertion by Manard. Manard denied
leaving his Job voluntarily or resigning.19
The Discharge of Goodman-
February 12, 1970
Goodman, who was initially employed by Respondent in
the mid-July 1969 as a new-car salesman, was discharged
on February 12, 1970. According to Goodman, whom I
credit, he attended meetings of the Union commencing
August or September 1969. It was Goodman who contacted
Dowden, Manard, and Burdett and advised them of the
union meeting on January 20, which they attended, after
the regular union meeting on that date. It was at that
meeting that Goodman was elected as in-plant committee-
man by approximately 10 of Respondent's salesmen.
Goodman was also in attendance at the union meeting of
January 28 when approximately 14 of Respondent's
salesmen signed authorization cards. Goodman related that
on Thursday, February 12, he was scheduled to work from
9 a.rn. to 9 p.m. When he returned from lunch, at
approximately 12.45 p.m., Sales Manager Drew advised
him that he was being discharged. Goodman inquired as to
the reason and was advised by Drew, "Well, the reason I
put down on your termination notice is rabble rousing."
Goodman inquired if this was Drew's idea and Drew
responded that he could not tell Goodman that. Goodman
inquired as to when he could pick up his paycheck and
Drew advised that it should be ready in about 5 minutes.
Goodman related that, as they were leaving Drew's office,
Drew advised him, "If there is anything I can do to help
you get another job, by all means I will do it." Drew
inquired whether Goodman needed a ride home. Goodman
called Drew's attention to the fact that Goodman was
requited to turn in his demonstrator While Drew was
trying to locate a lot boy to drive Goodman home,
Calabrese inquired what he needed the lot boy for. When
Drew advised Calabrese that Drew would have the lot boy
run Goodman home, Calabrese responded, "Let him
walk "20
19 1 have found, supra, that Drew did not appear as a witness and no
explanation was offered by Respondent as to the reason for his failure to
appear The contentions of Respondent as to the reasons for the discharge
of Marard and the alleged justification in an effort to establish good cause
for such discharge are considered infra
20 Drew, as noted supra, did not appear as a witness Respondent's
varied defenses for the discharge of Goodman are set forth and considered
infra
21 Ir fact, Seavello was not discharged until February 27, and then only
because of a poor sales record in February
383
Respondent's Defenses Relative to the
Discharges-Other Related Evidence
Initially, Respondent sought to establish that the
discharges were motivated by business conditions. Cala-
brese related that he participated in a meeting with factory
representatives and other Dodge dealers, covering San
Diego and Los Angeles Counties, in early January 1970.
calabrese related, "Mr. Virgil Boyd, the president of
Chrysler corporation, assembled the Dodge dealers togeth-
er of Southern California and talked to us about the hard
times we are going to have ahead of us and that we had to
get down to basic hard sell and get away from the
flamboyant type of discounts and stuff like this and we had
to take and all go back and review our financial statements
as far as expenses are concerned and to take a review of our
1968 financial statement as far as expenses are concerned
and in comparison with what we are paying now for the
same job being done and to eliminate any unnecessary
expenses, or to this nature." What application this garbled
statement is supposed to have on the discharges, in question
herein, is obscure.
Calabrese asserted that in the first 4 months of 1970 31
nonsupervisory salesmen terminated employment by
Respondent, of whom 16 were voluntary terminations and
15 were involuntary terminations. The import of this
undocumented assertion is obscure, particularly in the light
of Calabrese's recitation of his conversation with General
Manager Drew on Janaury 26, considered next.
According to Calabrese, he had an extensive conversa-
tion with Sales Manager Drew on January 26, 1970, the first
day of Drew's employment, dunng which the records,
qualities, and inferentially deficiencies of each salesmen
were considered. Calabrese asserted that at that time he and
Drew decided to discharge three salesmen whom he
ident£fied as Dowden, Daily, and Seavello.21
Calabrese asserted the reason for his meeting with Drew
was that they needed some new blood, "that the salesmen
we had were, there was something either wrong with them
or they were going to sleep on the job, that we had more
people walking in on the showroom floor, but they weren't
being waited on." Thus, Calabrese would infer that the
reason for the discharges was low production or a poor
sales record. In fact, the record supports a reasonable
inference that Dowden and Goodman, at the time of their
respective discharges, were among the top salesmen in the
group.22
The specific circumstances of each discharge appear
supra, and the asserted reasons underlying said action are
next set forth and considered.
Calabrese asserted the reason for the discharge of
Dowden was his "arrogant attitude, trouble with manage-
ment." I have found, supra, that, at the time of his
Calabrese recitation of his efforts on January 29, and those of Sales
Manager Stunich to reinvigorate Daily, infra, are self-contradictory to his
assertion that the decision to discharge Daily was made on January 26
Calabrese is thus hung on a petard of his own making in his patently
false effort to establish a discharge decision prior to the union meeting of
January 28
22 While Daily was discharged on January 30, Seavello was not
Seavello was low man in sales and the only salesman, according to credited
testimony, who had not signed a union authorization card on January 28
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge, Sales Manager Drew advised Dowden, "I work
for a guy just like you do. I am sorry. So if I can help you
out later, just let me know." Cono, Dowden's immediate
superior, advised Dowden that he had been told by Drew to
fire Dowden, and had refused to do so because Drew could
not give him a reason. Dowden's assertion that he was top
salesman when he was fired stands unchallenged Dowden
asserted that his earnings were $1,200; however, the record
in unclear as to whether he referred the last 2 weeks of
January or the entire month. Dowden's assertion that no
supervisor had ever criticized his sales performance, or his
dealings with customers, stands undisputed. Dowden
requested, from Drew, a copy of his termination notice, but
has never received it. In August 1969, the dealership
announced a contest for which the prize was a 5-day, all-
expense, trip to Hawaii with a cash bonus, which Dowden
won.23 Dowden acknowledged there was a bonus system
for selling cars and he offered to quit because his "high
gross" check was held up for several days.24
Calabrese sought to establish that Dowden, in the
language of Calabrese, was "Just hard to get along with."
Asked to explicate, Calabrese went into a dissertation
about the factory-sponsored Hawaiian trip, announced in
August, to which Calabrese added $200 cash, won by
Dowden. Calabrese related that Dowden collected the
$200 from him, then advised he had decided not to make
the trip. This was in November. Calabrese first could not
recall any incident involving Dowden in December. Then,
in response to a leading question, recited that Dowden was
at the sales agency "a little tipsy with a highball glass," but
Calabrese did not know if Dowden was on duty at that
time. Calabrese asserted Respondent's policy was if you
drank you did not come to work.25
Asserting he had advised Stunich to discharge Dowden,
at the time of the January 20 incident, Calabrese related
that when Stunich advised him Dowden had cooled down
"a little bit" and "we do not have too many salesmen right
now,"26 he agreed to Dowden's retention. Respondent's
23 We are not herein concerned with the reasons why Dowden did not
avail himself of the trip
24 This event occurred on January 20. Dowden acknowledged "high
gross checks" are handed out at sales meetings , but denied this was always
true Dowden asserted the 5th and 20th of each month was a payday He
was provoked because a "high gross check" was held up for 4 days New-
Car Sales Manager Stunich witnessed the confrontation between Calabrese
and Dowden , as described Dowden as "coming on strong," but could not
recall any swearing or gestures by Dowden Stunich did inquire why
Calabrese did not fire Dowden and was advised by Calabrese that Dowden
would cool off Dowden acknowledged laying the keys to his demonstrator
on Stunich's desk and advising Stunich he was quitting Stunich advised
him to "relax" that Stunich would obtain the check for him
Calabrese , in an effort to magnify the January 20 incident , asserted
Dowden threw his car keys on the floor in the presence of Stunich and an
unidentified salesman Dowden denied throwing the keys on the floor
Stunich , witness for Respondent , corroborated Dowden , whom I credit
25 Respondent 's counsel acknowledged this incident was not a
contributing factor in Respondent ' s decision to discharge Dowden In
addition, former General Sales Manager Kirkendall, a witness for
Respondent , who was present during this incident , acknowledged that
Dowden is currently employed by him. Kirkendall described Calabrese's
reaction, at the time of the incident , as "Mr Calabrese was not upset about
it
26 There is no evidence of any substantial fluctuation in the number of
salesman employed by Respondent It was Calabrese who related they had
more salesmen in December and January than the 14 to 16 maintained
purported reason for discharging Dowden is thus revealed
as being without substance.
I turn next to the discharge of Daily. I have found, supra,
that Daily signed an authorization card for the Union on
the evening of January 28. Calabrese related that he
advised Drew, on January 26, to discharge Daily. No
explanation appears why this instruction was not carried
out on January 27 or 28, when Daily, inferentially, was at
work. Calabrese asserted that he advised both Drew and
Stunich that Daily had been a good salesman until the last 6
or 7 months. Calabrese then suggested that he and Stunich
arrange to play golf with Daily, to afford Calabrese an
opportunity to get to the bottom of whatever problem Daily
had.27 It is undisputed that the three named did play golf
on January 29. Immediately, after the sales meeting, the
following morning, January 30, Stunich advised Daily that
he was being discharged on instructions from General
Manager Drew. Calabrese asserted that Daily was dis-
charged by Drew for nonproduction.28 The assertion of
Daily that, in 1968, he had been a member of the Delta
Club, and the Diamond Chapter, honorary awards
inferentially granted to salesmen with high total annual
sales, stands undisputed. Daily acknowledged that he did
have a slump in sales covering a period of approximately 3
months prior to his discharge, but related he was not the
low man in production of Respondent's salesmen. His
assertion that Seavello was below him on the production
chart is not disputed. The denial of Daily that he was given
any warning of a possible discharge by either Drew or
Stunich stands undisputed.
I turn next to the discharge of Manard on January 29. I
have found, supra, that Manard was reemployed by
Respondent as a salesmen in early December 1969.
Kirkendall related that Don Smith, who was finance
manager, also called contract manager , advised Kirkendall
that he was going to leave Respondent's employment and
go to work for the State of California.29 Kirkendall
since
27 The denial of Daily that any mention was made of his employment
status during the golf match stands undisputed Daily acknowledged
Calabrese inquired , "When I was going to get off my rear end and start to
work " I find this innocuous assertion far from a threat of the imminency
of dire results
25 While Stunich related noting what he described as a lack of
aggressiveness on the part of Daily , there is no evidence that he reported
these asserted facts to management , or that he reprimanded Daily at any
time More importantly, it is not contended that Stunich was in any way
involved in the decision to discharge Daily
Former General Sales Manager Kirkendall related that during his i I
months , as a supervisor of Daily , he found that Daily was a very capable
salesman who decided not to work and who would be content to put in 2
or 3 hours of work , 2 or 3 days each week , and then get sidetracked on
other interests Kirkendall related that he would join Daily , after work
hours , for a drink , and at times assumed that Daily had a 6 or 7 hours'
head start predicated on his estimate of Daily's condition Kirkendall
asserted that Daily would miss 20 percent of his worktime and that
Kirkendall had reprimanded him for this at least three times each week on
an average Kirkendall acknowledged that none of these reprimands were
placed in Daily 's personnel file Kirkendall related he fired Daily at least
eight times , in 10 months, but on at least four of these occasions he hired
Daily back without terminating him Kirkendall acknowledged that Daily.
closed between the 75 and 80 percent of his own deals, while he was
working under Kirkendall
29 However, the assertion of Manard that Smith , in fact, became a
(Continued)
PADRE DODGE 385
acknowledged recommending the selection of Manard to
Calabrese.30 Manard credibly related that, in early
January, inferentially at approximately the time of
Kirkendall's departure, Manard had a conversation with
Calabrese, at which time Manard inquired if he could
obtain a position in management.31 According to Manard,
Calabrese responded that he had someone in mind, that he
appreciated Manard's aggressiveness and would keep him
in mind.32 It is undisputed that Manard was paid a monthly
salary of $ 600 as finance manager, while Smith, in the same
position, had been paid $350 a month.
I have found, supra, on January 27, General Sales
Manager Drew advised Manard that Drew wanted to put
Smith back into the job of finance manager, as Smith was
not doing anything as a salesman, and, further, that Drew
would be needing another sales manager and thought
Manard might be the individual that he wanted. Accord-
ingly, because January 28 was his day off, Manard reported
as a salesman on January 29 and worked as a salesman
from 9 a.m. until his discharge at approximately 5 p.m.
Initially, Respondent asserted that Manard, as finance
manager, was a supervisor. There is not a scintilla of
evidence in this record that the finance manager, at any
time, exercised any of the responsibilities enumerated in
Section 2(11) of the Act defining a supervisor. Even if there
were, it is patent, and undisputed, that Manard was a
salesman at the time of the discharge. Respondent then
sought to establish that Manard was not, in fact, discharged
but resigned, having been recommended by Drew for a
management job at a competitor, Duringer Chevrolet.33
Respondent next asserted that Manard was discharged
because of his incompetence as finance manager. Calabrese
acknowledged that Manard, as finance manager, was not
considered or mentioned during his discussion with Drew
about the relative qualities or weaknesses of the various
salesmen on January 26. Thus, no consideration was given
to the position Manard then occupied that day. Calabrese
related that, on January 27, Drew advised him that some of
the salesmen were complaining that loans that Manard was
trying to get would be turned down, that he was taking too
long to obtain loans, and that in some instances, where
salesman for Respondent at the time that Manard replaced him appears
undisputed Calabrese acknowledged advising Drew, on January 26, that
Smith had just been put on the floor , that he had been the insurance
salesman, and that Calabrese did not know if Smith could "make it or not"
as a salesman
30 Kirkendall descnbed Manard as a very capable individual with a
great desire to succeed in the automobile business Kirkendall asserted this
particular vacancy gave him an opportunity to help Manard learn that end
of the business as a step toward helping Manard achieve a management
position
I find it unnecessary to treat in detail with Kirkendall 's explanation of
the training he afforded Manard in the matter of securing loans , arranging
financing, and selling various types of insurance
3i It would appear from Manard's recitation that he recognized the
probability that either Stunich or Cono would be advanced to general sales
manager , and that he was hoping to succeed one of them
32 Calabrese corroborated this assertion of Manard
33 Calabrese related that Drew was with Dunnger Chevrolet prior to his
employment by Respondent
Manard credibly related that the position at Duringer was not
mentioned until after he was discharged by Drew He also asserted that his
inquuy revealed that the position was not management but was a sales
position and he was never employed by Duringer
34 The following recitation of Calabrese is unsupported by even a
scintilla of evidence of probative value
loans Manard attempted to get were turned down, the same
individuals were walking across the street buying automo-
biles, inferentially obtaining credit. Thereafter, Drew
advised Calabrese that Smith wanted to return to his old
job, assertedly because Smith learned from some of the
salesmen that Manard was not doing a goodjob. Calabrese
asserted that he instructed Drew to terminate Manard, and
later learned that instead of terminating him Drew had
transferred him to the used-car lot as a used-car salesman.
Calabrese asserted he advised Drew, "If you catch a man
with his hand in a cookiejar, hell, you don't keep him. You
just get rid of him." 34
Manard asserted he was advised, on January 27, that he
was being transferred to sales work with an opportunity for
promotion, effective January 29. Calabrese admitted
learning of this transfer on January 29.35 Calabrese then
asserted that "Mr. Drew terminated him. He didn't
terminate him. He came back and told me that Manard
resigned." Asked what he meant by resigned, Calabrese
asserted that he had been advised by Drew that Drew had
helped Manard obtain ajob at Dunnger Chevrolet. I do not
credit the recitation of Calabrese.
It is undisputed that Goodman was discharged on
February 12. I have found, supra, that Goodman was
advised at lunchtime, by Drew, that the reason stated on his
termination notice for his discharge was "rabble
rousing."36 It appears undisputed that Goodman was one
of Respondent's better salesmen . Kirkendall acknowledged
that he presently employs Goodman. Kirkendall described
Goodman as "a very capable salesman who has an attitude
of complaining about certain deals that a manager will
make a decision on."37 Calabrese described Goodman as a
"general screw-off." Calabrese asserted that he would walk
out in the morning and see Goodman across the street, on
the used-car lot where he was supposed to be on duty,
paying no attention to a customer. Goodman's assertion
that he was a new-car salesman and not a used-car
salesman is otherwise undisputed and is credited. Calabrese
asserted that, after a sales meeting , he would see Goodman
Q Now earlier this morning you testified to the effect that Mr
Manard had a hand in the cookie jar
A Yes
Q What do you mean by "a hand in the cookie jar9"
A I was told by Mr Drew that some of the customers that were
coming into the that some of the deals that we were getting that
had to be financed on the outside , that Mr Manard was not getting
them financed and that the customers were eventually ending up
across the street and, according to Mr Drew, that some of the
salesman accused Manard of bird-dogging them across the street
To keep this recitation in focus, it must be remembered that Drew began
as General Sales Manager only the day before, January 26 Calabrese's
own story is that Manard was not discussed that day.
Respondent 's counsel asserted Manard was "moonlighting " by working
for Hargis Motors, opposite Respondent 's facility There is no evidence
herein of such activity
35 Erroneously stated as January 30
36 The conjecture of Respondent's counsel as to what "rabble rousing"
encompassed is not evidence and is disregarded
31 Kirkendall then explained that he had constant problems with
Goodman relative to the precise amount of commission he paid on a
particular deal, or the method of splitting commissions. Kirkendall
summarized by stating, "However, he [Goodman I is a good man and I was
able to cope with these things and straighten them out on him, overcome
the employee, and he is a good employee and a salesman of mine now "
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
get into a car with two or three other salesmen and drive
off, presumably to have breakfast, without checking out.38
Calabrese first asserted that the duty hours of the salesmen
were 9 a.m. to 3 p.m. and 3 to 9 p.m., thus requiring no
luncheon break. Calabrese then became confused as to
when the duty hours were 9 a.m. to 9 p.m., and whether
such hours were scheduled prior to or after February 1.
Having asserted that Goodman would leave the lot while
Goodman was on duty, Calabrese then acknowledged that
he did not, in fact, know whether Goodman was on the
morning or afternoon shift on the particular day he saw him
leaving the premises. Having asserted that Goodman would
leave the lot while Goodman was on duty, Calabrese then
acknowledged that he did not, in fact, know whether
Goodman was on the morning or afternoon shift on the
particular day he saw him leaving the premises. Having
asserted that Goodman left without authority, on occasions
both in the morning and in the afternoon, Calabrese then
acknowledged that he could not accurately relate what
occurred in the afternoon since he was not at the sales
agency in the afternoon. Calabrese was unable to relate on
how many mornings Goodman left the premises when he
was supposed to be on duty, Calabrese then acknowledged
that he didn't know for certain if Goodman was on duty
since he had nothing to do with the schedule.39 While
Calabrese asserted production dropped in February,
compared to January, no production figures were intro-
duced, particularly those of Goodman. It must therefore be
concluded they would not support this assertion of
Calabrese. In addition, Calabrese asserted Goodman was
discharged for setting "a bad example for the rest of the
men." Calabrese asserted this condition was only after
Goodman became in-plant committeeman for the Union.40
I find "rabble rousing," for which Drew assertedly
discharged Goodman, at substantial variance in connota-
tion from "setting a bad example " the reason advanced by
Calabrese.
Burdett credibly related that, in his conversation with
Calabrese in mid-February, Calabrese advised that Good-
man had been "told twice," by Calabrese, not to talk about
the Union on the premises, but had kept on doing it, "so he
had been let go."
Calabrese's demeanor, his self-contradictions, his numer-
ous inaccuracies, and Respondent's shifting of defenses,
which must have emanated from Calabrese's imagination,
are among the reasons I have found the recitations of
Calabrese incredible.
CONCLUDING FINDINGS
Respondent errs, in its brief, in urging that interrogation
of an employee relative to either his or his fellow
employees' union activity is permissive and not unlawful if
it contains neither a threat nor a promise of benefit. Prior to
the Blue Flash case 41 all interrogation relative to union
38 While it is undisputed that Goodman was discharged on February 12,
Calabrese placed the time of these events as between February I and 14
39 I credit the denial of Goodman, who asserted he left the premises
after sales meetings only when he was scheduled for the late shift
40 Calabrese testified
Q It was only after he became a representative of the union that
he started taking liberties, is that what you are testifying to"
A Yes
membership, activities, and desires was held to be per se
unlawful. In Blue Flash the Board found legitimate reasons
for inquiry, when conducted with appropriate safeguards.
The Board held that the test is whether, under all the
circumstances , interrogation reasonably tends to restrain or
interfere with the employees in the exercise of rights
guaranteed by the Act.
The Board further elaborated in its decision in the
Johnnie's Poultry case,42 in which the Board stated that the
purpose which the Board and courts have held legitimate
(permitting interrogation) are of two types: verification of a
union's claim to majority status to determine whether
recognition should be extended . . . ; and investigation of
facts concerning issues raised in a complaint, where such
interrogation is necessary in preparing the employers
defense for the trial of a case.
There is no indication in this record of the existence of
either of the conditions outlined by the Board in the
Johnnie's Poultry case, nor were the enumerated safeguards
taken. Accordingly, I find the interrogation of employees
by Calabrese, as found in the section entitled "Interference,
Restraint, and Coercion," were coercive and thus violative
of the provisions of Section 8(a)(1) of the Act.43
I have found, supra, that on the morning of January 29,
about 9:30 a.m., Calabrese advised Baugh of Calabrese's
knowledge of Baugh having attended the union meeting at
the Palomar Club the prior evening. At that time Calabrese
advised Baugh "there will be no union now or ever at Padre
Dodge." Calabrese also advised Baugh that if Baugh
wanted to continue in the car business he should forget
about the Union. I have found that, in mid-February,
Calabrese advised Burdett that Calabrese was aware of
Burdett's union activities, that while Calabrese had
sufficient reason to fire Burdett (and inferentially could do
so with impunity), he would not do so. I have found that in
mid-January, Calabrese requested that Daily advise
Calabrese if Daily learned of any salesman belonging to the
Union, "because they would no longer be working [here ] "
Numerous Board decisions, with court approval, have
held that threats, of the type found herein, and, alternative-
ly, creation of an impression of surveillance, in each
instance, is coercive conduct in derogation of Section
8(a)(1) of the Act. I find accordingly.
I have found, supra, that, as early as November or
December 1969, General Sales Manager Kirkendall, as well
as Calabrese, were aware of the efforts of the Union to
organize automobile salesmen in San Diego, including
those employed by Respondent. Kirkendall's antiumon
comments, after taking note of the bulletin board notice of
a scheduled union meeting, without more, establishes such
knowledge. Cogent evidence of Calabrese's knowledge of
the meeting, on January 28, at the Palomar Club, appears in
his assertion that he was advised of that meeting by a
salesman, whom he identified as Ray Dresser who advised
41 Blue Flash Express Inc, 109 NLRB 591
42 Johnnie's Poultry Company, 146 NLRB 770, 775
43 In making the foregoing findings I exclude the interrogation of
Goodman, by Calabrese , relative to Goodman's union activities during
worktime, and a similar inquiry by Drew
The right of an employer to forbid union activities during worktime is
beyond dispute No allegation appears in the complaint of the adoption or
promulgation of an excessively restrictive no-solicitation rule.
PADRE DODGE
Calabrese, "They had a big meeting last night at the
Palomar Club." That Calabrese did, in fact, learn the
identity of the employees who attended is verified by the
interrogations he conducted.
The effort of Calabrese to establish that he and Drew
arrived at an understanding, on January 26, to discharge
Dowden, Daily, and Seavello, inferentially by reason of
poor sales records, for reasons set forth supra, I find
demonstrably false.
It is undisputed that Manard was discharged, on January
29, the day after his attendance at the union meeting.
Contrary to being warned of any deficiency, Manard had
been retransferred to sales work, by Drew , with a promise
of promotion, only 2 days before.
Calabrese purportedly played golf with Stunich and
Daily, also on January 29, to attempt to "get to the bottom"
of whatever problem Daily had. Yet, without such an effort
having been made, Daily was discharged summarily, early
on January 30, by Stunich, purportedly upon the direction
of Diew. This was his first day at work after attendance at
the union meeting.
Dowden, apparently one of Respondent's better sales-
men, was summarily dismissed , without warning , by Drew,
who apologized with, "I work for a guy dust like you do."
This, coupled with the refusal of Cono to discharge
Dowden, for asserted lack of a valid reason, provides a
reasonable basis to infer that Calabrese, in fact, ordered the
discharge of Dowden.
Calabrese's effort to establish that Goodman left
Respondent 's premises without permission and was
discharged for that reason, or, alternatively, that Goodman,
after a warning , continued to discuss the union during
workume, and was discharged for that reason, has been
found to be without substance.
In numerous cases the Board and courts have held that
direct knowledge of an employee's union activities is not a
sine qua non for finding that an employee had been
discharged because of such activity but may be inferred
from the record as the whole. The small number of
employees, and the abruptness and timing of the discharge,
are among the factors considered Wiese Plow Welding Co.,
Inc., ] 23 NLRB 616.
The unexplained coincidence of time with respect to the
principal events has been found to be no coincidence at all,
but rather part of a deliberate effort by the management to
scotch the lawful measures of the employees before they
had progressed too far toward fruition. The court held that
if employees were discharged partly because of their
participation in a campaign to establish a union and partly
because of some neglect or delinquency, there is nonethe-
less a violation of the Act. N L.R.B. v. Jamestown Sterling
Corp, 211 F.2d 725 (C A. 2).
The existence of some justifiable ground for discharge or
94 Calabrese acknowledged that prior to the discharge of Daily,
salesmen recieved a commission equivalent to 25 percent of the gross,
provided the salesman closed his own deal If the salesmen needed
assistance in closing a deal he received only 12 -1/2 percent , with the
difference going to the individual who closed the deal I have found that
Daily closed 75 to 80 percent of his deals When Daily returned, the
commission for all salesmen was reduced to 20 percent, with the other 5
percent going to two men who were designated as team captains or closers,
387
layoff is no defense if it was not "the moving cause ." Wells,
Inc. v. N. L R.B., 162 F.2d 457,460 (C.A. 9).
The abruptness of a discharge , and its timing, have been
found to be persuasive evidence as to motivation . N. L. R. B.
v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2);
N.L R. B v Southern Desk Co., 246 F.2d 53, 54 (C.A. 4).
The Board has found a discharge discriminatorily
motivated by reason of the unconvincing character of the
reasons adduced to support the discharge . N L.R B v.
Radcliffe, 211 F.2d 309, 314-315 (C.A. 9); N L.R.B. v. Dant,
207 F.2d 165, 167 (C.A. 9).
In view of the above facts , and upon the entire record as a
whole, I believe and find that Respondent 's purported
reasons for discharging Stanley R. Manard , Frank W
Daily, Gerald Dowden, and Stephen Goodman, and its
failure thereafter to reinstate each said employee to his
former or substantially equivalent position , were pretextu-
ous and the real reason and moving cause was the union
activities of each said employee , and said discharges
constituted discrimination to discourage membership in the
Union, in violation of the provisions of Section 8(a)(3) and
(1) of the Act.
The Purported Reinstatement of Frank W.
Daily-March 16, 1970
Respondent contends that Daily was reinstated on
March 15, 1970. Necessarily , a valid offer of reinstatement
would terminate any backpay period, would obviate the
need for an order of reinstatement , and would eliminate
Daily as a potential voter in the election , which was held in
April. The facts relative to Daily's purported reinstatement
appear substantially undisputed.
At the direction of Calabrese, Finance Manager Don
Smith called Daily on March 14 to ascertain if Daily was
interested in returning to Respondent 's employment. When
Smith received a favorable response, Calabrese entered the
conversation and advised Daily to report the following
morning. Thereupon, Daily advised Calabrese "there is a
few things we have got to talk about." The following
morning, Daily reported at Calabrese's office, awaited the
arrival of Calabrese, and was then advised by Calabrese
that they now had teams and team captains, and that
Calabrese would introduce Daily to his team captain. Daily
advised Calabrese that he wanted his seniority, insurance,
and vacation eligibility reinstated . He also requested an
advance of $200 against his vacation pay. According to
Daily, Calabrese advised him to discuss such matters with
his team captain 44
Calabrese acknowledged that Smith had no authority to
discuss working conditions with Daily. Calabrese acknowl-
edged that he did not discuss the conditions under which
Daily returned.45 Calabrese specifically dented having
talked to Daily about seniority , insurance benefits, or
vacation eligibility. Calabrese denied instructing Daily to
on all deals In the light of other facts, set forth, i find it unnecessary to
determine whether the change in commissions constituted a changed
condition which might preclude a finding of reinstatement
41 Calabrese testified
Q Did you discuss any conditions with him [Daily] about him
returning')
A Absolutely none , except for going to work
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discuss these matters with his team captain, asserting he
introduced Daily to Campbell, general sales manager 46 To
the extent the testimony of Daily is at variance with that of
Calabrese, I credit Daily.
Calabrese related the insurance provided was hopitaliza-
tion. An employee qualified after 30 days of employment,
and coverage continued through 30 days after separation. It
is thus obvious that unless Daily was being reinstated, as
distinguished from being employed as a new employee, he
would not be entitled to the insurance benefits until he had
been employed for 30 days. Calabrese acknowledged that
while the general sales manager, Campbell, had the right to
hire and fire, he did not have the right to make rules and
regulations concerning fringe benefits of employees, which
Calabrese alone could determine. Calabrese, not Campbell,
instigated and was solely responsible for the employment of
Daily, on March 15. There is not a scintilla of evidence that
Daily was advised by anyone that he was being reinstated
without prejudice to his seniority and other rights and
privileges previously enjoyed. Being unable to obtain
clarification of his status, Daily did not return to
Respondent's facility after March 16.
I find that Respondent's alleged reemployment of Daily,
on March 15, 1970, did not constitute reinstatement,
following a discriminatory discharge, within the meaning of
Board decisions, and does not toll any backpay period, nor
deprive Daily of his status as an employee at the time of the
election herein on April 21, 1970.47
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce, among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
It has been found that Respondent discriminatorily
discharged Stanley R. Manard on January 29, 1970, Frank
W. Daily and Gerald Dowden on January 30, 1970, and
Stephen Goodman on February 12, 1970, and has ever
since failed and refused to recall and reinstate each of those
named. Accordingly, I recommend that Respondent offer
to each immediate and full reinstatement to the former or
substantially equivalent position of each, without prejudice
to the seniority and other rights and privileges previously
enjoyed by each, dismissing, if necessary, any employee
hired since the date of each discharge It is further
46 Campbell did not appear as a witness, and Respondent offered no
explanation of its failure to call him
47 Ertel Manufacturing Corp, 147 NLRB 312, 331-334
In so finding, I find it unnecessary to resolve the impact, if any, of the
requirement of California statutes that automobile salesmen , as a condition
precedent to employment, are required to obtain a license from the
recommended that Respondent make each of those named
whole for any lost of pay each may have suffered by reason
of said discrimination. Said loss of pay shall be based on the
earnings each would have earned from the date of the
discharge of each until the date each is offered reinstate-
ment, less net earnings during said period. Since the record
reflects that these salesmen, except Manard, where working
on a straight commission basis, I recommend that a
determination of backpay should be based upon a
determination of the percentage relationship the gross
earnings of each bears to the average gross earnings of
those who comprised the full-time nonsupervisory sales
force, during the respective last period of employment of
each dischargee, and the application of said percentage to
the average gross earnings of said full-time nonsupervtsory
sales force during the period between each discharge and
each offer of reinstatement 48 Said backpay shall be
computed on a quarterly basis in the manner established by
the Board in F. W Woolworth Company 90 NLRB 289.
Interest on backpay shall be computed in the manner set
forth in Isis Plumbing and Heating Co., 138 NLRB 716
It is also recommended that Respondent be ordered to
make available to the Board, upon request, payroll and
other records to facilitate checking of the amount of
earnings due.
In view of the nature of the unfair labor practices
committed the commission of similar or other unfair labor
practices reasonably may be anticipated. I shall therefore
recommend that Respondent be ordered to cease and desist
from in any manner infringing upon rights guaranteed to its
employees by Section 7 of the Act.
Having found that the discharges of Frank Daily, Gerald
Dowden, and Stephen Goodman were discriminatorily
motivated, it follows that said individuals were employees
of Respondent, entitled to vote in the election of April 21,
1970, and the challenges to said ballots should be overruled.
I will recommend that Case 21-RC-11649 be severed, that
the Regional Director for Region 21 be directed to open
and count the ballots of Frank Daily, Gerald Dowden, and
Stephen Goodman, and thereafter to certify the results of
the election.
Upon the foregoing findings of fact and upon the entire
record in the case I make the following-
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Association of Machinists and Aeros-
pace Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By engaging in the conduct set forth in the section
entitled "Interference, Restraint and Coercion," to the
extent therein found, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
Department of Motor Vehicles, to be displayed at the business location of
the dealer It is undisputed that Daily did not obtain such a license in
March 1970
48 Story Oldsmobile, Inc, 145 NLRB 1647, Folk Chevrolet, Inc, 176
NLRB No 30
PADRE DODGE
4. By discriminating with respect to the hire and tenure
of employment, and terms and conditions of employment,
of Stanley R. Manard, Frank W. Daily, Gerald Dowden,
and Stephen Goodman, thereby discouraging the free
exercise of rights guaranteed by Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in the case, I
recommend that Respondent , Padre Dodge, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO, or
any other labor organization of its employees , by discharg-
ing or otherwise discriminating against employees in regard
to their hire or tenure of employment, or any term or
condition of employment.
(b) Interrogating employees in a manner violative of
Section 8(a)(1) of the Act.
(c) Threatening economic retaliation if any employee
engages in organizational or other activities protected by
the provisions of Section 7 of the Act.
(d) Creating an impression of surveillance of union
meetings.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right of self-
organization, to form labor organizations, to join or assist
the above-named Union, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in any other concerted activity for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that 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 designed to
effectuate the policies of the Act.
(a) Offer to Stanley R. Manard, Frank W. Daily, Gerald
Dowden, and Stephen Goodman immediate and full
reinstatement to the former or substantially equivalent
position of each without prejudice to seniority or other
rights and privileges previously enjoyed by each and make
each whole for any loss of pay each may have suffered by
reason of Respondent's discrimination against each in
accordance with the recommendation set forth in "The
Remedy" herein
(b) Preserve and, upon request, make available to the
Board or its agents, for inspection and reproduction, all
payroll records, social security payment records, timecards,
personnel files, and all other records necessary to analyze,
compute and determine the amount of backpay to which
389
each of the discriminatees may be entitled under the terms
of this Trial Examiner' s Decision.
(c) Post at its place of business in San Diego, California,
copies of the attached notice marked "Appendix." 49 Copies
of said notice, to be furnished by the Regional Director for
Region 21, after being signed by Respondent's representa-
tive, shall be posted by the Respondent and maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including each of Respondent's bulletin boards. Reasona-
ble steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of the receipt of this
Trial Examiner's Decision, what steps it has taken to
comply therewith.
IT IS FURTHER RECOMMENDED that unless Respondent
shall within 20 days from the date of the receipt of this Trial
Examiner's Decision notify said Regional Director, In
writing, it will comply with the foregoing Recommended
Order,50 the National Labor Relations Board issue an order
requiring that Respondent take the action aforesaid.
IT IS FURTHER RECOMMENDED that Case 21-RC-11649 be
severed, that the Regional Director for Region 21 be
directed to open and count the ballots of Frank Daily,
Gerald Dowden, and Stephen Goodman, and thereafter to
certify the results of the election.
99 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order, herein
shall, as provided in Section 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 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 be changed to read "Posted pursuant to a
Judgment of a United States Court of Appeals enforcing an Order of the
National Labor Relations Board "
50 In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Internation-
al Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization of our
employees, by discharging or otherwise discriminating
against our employees in regard to their hire or tenure
of employment, or any term of condition of employ-
ment.
WE WILL NOT interrogate employees in a manner
violative of the provisions of Section 8(a)(1) of the Act
relative to their union activities, interests, or sympa-
thies, or that of their fellow employees.
WE WILL NOT threaten economic retaliation if any
employee engages in organizational activities or other
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities protected by the provisions of Section 7 of the
Act.
WE WILL NOT create the impression of surveillance of
union meetings.
WE WILL NOT in any other manner interfere with,
restrain, or coerce, our employees in the exercise of the
right to self-organization, to form labor organizations,
to join or assist International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other labor
organization, to bargain collectively through represent-
atives of their own choosing, and to engage in any other
concerted activity for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that 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.
WE WILL offer to Stanley R. Manard, Frank W.
Daily, Gerald Dowden, and Stephen Goodman imme-
diate and full reinstatement to the former or substan-
tially equivalent position of each, without prejudice to
seniority or other rights and privileges previously
enjoyed by each , and make each whole for any loss of
pay each may have suffered by reason of our
discrimination against each of them.
All of our employees are free to join , or refrain from
joining, the International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other labor
orgainzation.
Dated By
PADRE DODGE
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 849
South Broadway, Eastern Columbia Building , Los Angeles,
California 90014, Telephone 688-5229.