Reynolds Motors, Inc.

National Labor Relations Board - Board Decisions

Sep 6, 1967

167 N.L.R.B. 318 (N.L.R.B. 1967)

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reynolds Motors , Inc. and Harry J. Stewart
Reynolds Motors , Inc. and International Association
of Retail Automobile Salesmen and Servicemen
(Independent ). Cases 3-CA-3091, 3-CA-3127,
and 3-RC-4039
September 6, 1967
DECISION AND ORDER AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On May 9, 1967, Trial Examiner James V. Con-
stantine issued his Decision in the above-con-
solidated proceedings, finding that the Respondent
had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . The Trial Examiner also found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter,
the Respondent filed exceptions to the Trial Ex-
aminer 's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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, brief,
and the entire -record in the case, and hereby adopts
the findings,, conclusions, and recommendations
of the Trial Examiner, as modified hereinafter.
1. We do not agree with the Trial Examiner that
Respondent violated Section 8(a)(1) by Supervisor
Fuller's interrogations of employee Stewart in Sep-
tember 1966,2 and by Supervisor Scott's alleged in-
terrogation of employee Wilkes in early October.
The Trial Examiner did not credit Fuller's
testimony that he did not expect an answer from his
questions to Stewart as to how he was coming along
with "his union," because he was only joking about
Stewart's 1962 activities and had no knowledge of
any current union activities. He based this conclu-
sion on an inference of knowledge of current union
activity under the Board's "small plant" doctrine.
Stewart admitted, however, that there was no cur-
rent union activity until the first meeting on Oc-
tober 9, when the Union was organized and he was
elected an officer. Stewart also admitted that
Fuller's remarks were only in jest and that he un-
I In the absence of exceptions , we adopt pro forma the Trial Ex-
aminer's recommended dismissal of those allegations of the complaint in
derstood them to refer to his 1962 union activity.
Under these circumstances, and the failure of the
General Counsel to adduce any evidence showing
that Respondent was suspicious about a resumption
of Stewart 's union activity prior to October 9, we
cannot accept the Trial Examiner's finding that
these pre-October 9 remarks violated Section
8(a)(1).
The Trial Examiner likewise accepted testimony
by Wilkes that, sometime between October 1 and
7, Supervisor Scott asked Wilkes what he thought
of the Union. Without discrediting Scott, and
without giving any basis for crediting Wilkes (whom
he discredited in every other instance in his Deci-
sion), the Trial Examiner accepted Wilkes' version
of the incident over Scott's denial that he mentioned
the Union during the conversation in question.
However, as noted above, Stewart denied that there
was any union activity prior to October 9, and the
record reveals no evidence that Respondent be-
lieved there to be any. Therefore, Scott's denial that
the question was asked seems the most credible
version, and we so find. Accordingly, we shall
dismiss this allegation of the complaint.
2. We agree with the Trial Examiner that
Respondent violated Section 8(a)(1) by Supervisor
Fuller's remarks to an employee in November, in
the presence of employee O'Brien, that the em-
ployee should ask O' Brien about the Union because
O'Brien was one of the union leaders and had at-
tended the union meeting . More specifically, how-
ever, and contrary to Respondent's contention that
O'Brien's testimony is unreliable, we find that this
incident took place on or after November 17 or 18,
the dates on which Respondent moved its dealer-
ship to a new location. The clear import of
O'Brien's testimony is that the conversation oc-
curred after the move, and his previous reference to
"early in November" is not fatally inconsistent
therewith. Nor is the import of his testimony
destroyed by his obvious error, at one point, of
placing the conversation prior to Stewart's
discharge, infra .
3. We agree with the Trial Examiner that
Respondent discharged Harry Stewart on October
13 because of his renewed union activity, in viola-
tion of Section 8(a)(3) of the Act. In so finding,
however, we rely solely on the following: First,
Respondent admittedly had knowledge of Stewart's
leading role in the Union. Indeed, Stewart was
threatened with discharge by Supervisor Fuller
because of his union activity only 3 days before he
was, in fact, discharged. Second, there is ample
evidence in the record of Respondent's union
animus, as established through its violations of Sec-
tion 8(a)(1) of the Act. Third, as noted above,
Stewart's discharge occurred only 3 days after
Respondent learned of his union activity and,
which he found that Respondent did not violate Section 8(a)(1) of the Act.
I All dates herein are 1966.
167 NLRB No. 34
REYNOLDS MOTORS, INC.
through Fuller, threatened him with discharge
because of it. Finally, Stewart's precipitate
discharge during a workday and in the middle of a
workweek belies Respondent's assertions that the
reason for Stewart's discharge was his poor produc-
tion and that it was the result of a decision reached
the previous month, before he engaged in any union
activity. We conclude, on the basis of the record as
a whole, that, assuming that Stewart's production
record was poor and could have constituted a valid
ground for discharge, the real reason for his
discharge was Respondent's recently acquired
knowledge of,' and its opposition to, Stewart's
renewed union activity.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Reynolds Motors, Inc.,
Syracuse, New York, its officers, agents, succes-
sors , and assigns , shall take the action set forth in
the Trial Examiner's Recommended Order, as
modified below:
In paragraph 2(d) of the Trial Examiner's Recom-
mended Order, substitute for the words, "Copies of
said notice, to be furnished by the Regional
Director," the following: "Copies of said notice, on
forms provided by the Regional Director."
IT IS FURTHER ORDERED that the election con-
ducted in Case 3-RC-4039 be, and it hereby is, set
aside.
[Direction of Election' omitted from publication.]
' N L R B v Great Eastern Color Lithographic Corp, 309 F.2d 352,
355 (C.A 2j,N L R B v Whrhn Machine Works, 204 F2d 883 (C A 1)
" An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 3 within 7 days after the date of issuance of the notice
of second election by the Regional Director The Regional Director shall
make the list available to all parties to the election No extension of time
to file this list shall be granted by the Regional Director except in extraor-
dinary circumstances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections are
filed Excelsior Underwear Inc , 156 NLRB 1236
TRIAL EXAMINER'S DECISION
JAMES V CONSTANTINE, Trial Examiner: This is a
consolidated proceeding consisting of two unfair labor
practice cases and a case involving objections to an elec-
tion . In Case 3-CA-3091, Harry J. Stewart, an in-
dividual , filed a charge on October 24, 1966, against
Respondent Reynolds Motors, Inc., and on December 8,
1966, a complaint was issued thereon. On December 28,
1966, International Association of Retail Automobile
Salesmen and Servicemen (Independent) filed a charge
against the said Respondent . This charge was amended
on January 17, 1967, Case 3-CA-3127.
In Case 3-RC-4039, International Association of Re-
tail Automobile salesmen and Servicemen (Independ-
ent) filed a petition on October 25 , 1966, to represent
319
Respondent's employees in an appropriate unit. Pursuant
to a Decision and Direction of Election and an amend-
ment thereof rendered by the Board's Regional Director
for Region 3 (Buffalo, New York) on November 23 and
December 13, 1966, respectively, an election was con-
ducted on December 22, 1966. Having lost the election
the Petitioner, on December 28, 1966, seasonably filed
objections to conduct affecting the results of the election.
By an Order dated January 27, 1967, said Regional
Director (1) issued a consolidated amended complaint
covering Cases 3-CA-3091 and 3-CA-3127, and (2)
consolidated Cases 3-CA-3091, 3-CA-3127, and
3-RC-4039, for the purpose of hearing and decision by
a Trial Examiner. The consolidated amended complaint
alleges that Respondent violated Section 8(a)(1) and (3)
of the National Labor Relations Act, herein called the
Act, and that said conduct affects commerce within the
meaning of Section 2(6) and (7) of the Act. Respondent
has answered the complaint in Case 3-CA-3091 and the
consolidated amended complaint embracing Cases
3-CA-3091 and 3-CA-3127. The consolidated amended
complaint was amended at the hearing.
Pursuant to due notice, the consolidated case came on
to be heard and was tried before me on February 20 and
21, 1967, at Syracuse, New York. All parties were
represented at or participated in the hearing, and were
granted full opportunity to adduce evidence, examine and
cross-examine witnesses, submit briefs, and present oral
argument. A brief has been received from Respondent.
Upon the entire record in this case, and from my obser-
vation of the witnesses, I make the following.
FINDINGS OF FACT
1. AS TO JURISDICTION
Reynolds Motors, Inc., herein called the Respondent
or the Employer, a New York corporation, is engaged at
Syracuse, New York, in selling, servicing , and distribut-
ing new and used automobiles, trucks, and related
products. During the year preceding January 27, 1967,
Respondent sold and distributed products valued in ex-
cess of $500,000, and also received automobiles, trucks,
and other goods and materials, valued in excess of
$50,000, directly from points outside the State of New
York. I find that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to assert ju-
risdiction over the Employer in this consolidated
proceeding.
It. THE LABOR ORGANIZATION INVOLVED
International Association of Retail Automobile
Salesmen and Servicemen (Independent), a Charging
Party and Petitioner in this consolidated proceeding,
herein called the Union , is a labor organization within the
contemplation of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS
TO CONDUCT AFFECTING THE RESULT OF THE ELECTION
In the unfair labor practice cases (3-CA-3091 and
3-CA-3127) the issues litigated are whether Respondent:
(1) coercively interrogated its employees concerning
their and other employees ' union membership, activities,
and desires ; (2) threatened its employees with discharge
and reprisals if they joined or supported the Union; (3)
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promised its employees benefits to discourage interest in
or adherence to the Union; (4) created the impression
among its employees that it was engaged in surveillance
of their union activity; (5) ridiculed employees about
their union membership or activity; and (6) discharged
employee Harry J. Stewart for union membership or ac-
tivity.
In the objections case (3-RC-4039), the issues are
whether the Employer engaged in conduct enumerated
immediately above as (1), (2), (3), and (6).
Although evidence has been received on all issues, only
those events which occurred between the time the peti-
tion was filed and the election was held have been con-
sidered in the objections case.
A. General Counsel 's Evidence
Harry Stewart was first employed by Respondent from
1962 to 1965, as a salesman of new and used cars and
trucks . About July 21, 1966, he returned to Respondent's
employ in the same capacity . At this latter time he was
serving as president and business manager of the Union.
As such he "talked union" to Respondent 's employees
and held union meetings for them. At three meetings he
succeeded in "signing up" some employees . In 1961 and
1962, it was "common knowledge" that Stewart engaged
in union activity.
About September 20, 1966,1 Fran Fuller , Respond-
ent's truck sales manager , whom I find to be a super-
visor under Section 2 (11) of the Act, asked Stewart how
Stewart ' s union was coming along . Stewart did not
answer. About October 10, Howard Scott, Respondent's
leasing manager , whom I find to be a supervisor under
Section 2(11) of the Act, told Stewart that he wanted to
join the Union and offered Stewart $5 therefor. Replying
that "we were not taking members," Stewart expressed
willingness to accept the money as a "donation," but
Scott refused this invitation . Three employees were
"around at the time."
About September 22 or 23, Stewart came into the sales
office where he encountered the foregoing supervisors,
Fuller and Scott , and also Richard Fitzsimmons, Re-
spondent 's new-car sales manager. I find that Fitzsim-
mons is a supervisor under Section 2(11) of the Act.
Fuller asked Stewart how Stewart's union was coming
along , but he did not answer. Fuller later repeated this
question on the sales floor by "hollering" it while two or
three customers and two or three salesmen were
"around." About October 10, Fuller , while wearing a
"steward buttoon" in his lapel , informed Stewart that
Fuller was Stewart 's steward and offered to help Stewart
"if there 's anything I can do to help while you're not
around."
On October 9, a union meeting was held by Stewart for
Respondent's employees . The next day Respondent held
a regular meeting for its salesmen . All the sales force and
all the managers attended . Supervisor Fuller then ad-
dressed the salesmen . Instead of giving a sales talk, Fuller
asked Stewart, " How is your union coming along ... how
was your meeting yesterday? You needn 't tell us, I know
just where it was and who was there [and everything that
went on there ] . . it was held at the Syracuse Hotel....
If you don't watch out, Harry, you're going to lose your
job due to labor activity ." Then Stewart admitted he con-
ducted the union meeting and described what went on.
While further answering Fuller , the two exchanged
several words , but, before an argument could ensue, Su-
pervisor Fitzsimmons ordered Fuller to "shut up." Then
Fitzsimmons spoke , assuring the men that it was up to
them whether they wanted a union or not, that he was in-
terested only in selling cars , and if the Union would help
to sell cars , God bless anyone who wanted it.
About 7 p. m. on October 13, Supervisor Fitzsimmons
discharged Stewart "for not selling cars ," telling him that
this decision came from "upstairs ." As he left , Stewart
scanned the "board" listing the standings of the salesmen.
Ascertaining that he ranked fourth or fifth , Stewart called
this to the attention of Fitzsimmons and insisted "That
doesn 't look as though I'm not selling cars." Fitzsimmons
merely remarked, "Go ahead ." Prior to this , Respondent
had not spoken to Stewart about his sales. The foregoing
rankings on the "board" are determined by the number of
points received for selling and delivering cars. A sale
without delivery does not count , for customers sometime
revoke orders to buy . Points vary with the type of cars
sold and delivered.
Annually , the Ford Motor Company sets a predeter-
mined goal for salesmen who desire to become superior.
Those who attain it become members of the "500 Club"
for that year . In effect , it is a Ford contest . Stewart
"made" the "500 Club" in 1963 and 1964, and would
have "made it" in 1965 if he had not resigned to accept a
job with another employer . Membership in this club is re-
warded with prizes and a "wonderful banquet."
From July 21 , when he commenced working the
second time for Respondent , to the date of his discharge
on October 13, Stewart sold and took orders for 17 cars.
During this period , he encountered 2 of the 3 slowest
months (June , July, and August) in the automobile busi-
ness. During October , when he worked but 13 days be-
fore being terminated , he sold four Thunderbirds and a
Squire and , in addition , delivered an XL and a truck to
customers . This is a prime selling time as new cars first
appear on the market . Selling four Thunderbirds in so
short a period is , according to Stewart , a rare accomplish-
ment.
During good months , a good salesman should deliver
8 to 12 , and an exceptional salesman over 12, cars a
month , according to Stewart ; but during the slack season,
even a good salesman may go a whole month without a
single sale. In July, Stewart delivered one car; whereas in
August , he delivered six or seven , and seven or eight in
September. Because Thunderbirds are exceedingly popu-
lar, delivery of them is usually slow . In early October, it
took from 4 to 7 weeks following a sale before a car was
delivered to the customer.
One of Respondent's new car salesmen is Robert F.
O'Brien . About October 10, O'Brien observed Super-
visor Fuller wearing , on his lapel , a white , red, and gold
circular button with " International Union" inscribed on
it. Shortly after Stewart was discharged on October 13,
Supervisor Fuller asked O'Brien what he thought about
the Union , where he stood, and whether O'Brien would
vote for the Union . O'Brien replied that he had not yet
made up his mind.
Not long after Stewart was discharged O'Brien asked
1 All dates mentioned hereafter refer to 1966, except where otherwise
specified.
REYNOLDS
Supervisor Fitzsimmons the reason therefor . First stating
that , " I had to," Fitzsimmons added that Stewart was
causing too much unrest among the salesmen and em-
ployees at Reynolds Motors. At this point Supervisor
Scott entered the room . When O'Brien told the two su-
pervisors that Stewart "was let go because of union ac-
tivity," Fitzsimmons protested this was not the reason.
Scott also agreed with Fitzsimmons. (The transcript, p.
71, reads "Mr. Scott came in and said they had to let him
go because of union activity." But my notes show that
Scott denied that Stewart was discharged for union activi-
ty. I believe the transcript does not correctly depict
Scott 's words and that my notes are more dependable on
this aspect of the case.)
About October 13, Supervisor Fuller told O'Brien that
Respondent was going to do everything it could to make
things nice for the employees so that when they would be
picketing in the following January, they would know what
they were missing.
Sometime in November, while Supervisor Fuller was
conversing with a few salesmen , one of whom was
O'Brien, one of them asked Fuller a question about the
Union. Unable to answer it, Fuller turned to O'Brien and
said , "O'Brien , he's one of the leaders . He was at the
meeting. He should be able to tell you about it." Thereup-
on, O'Brien asked Fuller if he had ever seen O'Brien at
a meeting. When Fuller replied, "No," O'Brien then said,
"What are you shooting your mouth off for unless you
know what you are talking about?"
One of Respondent's combination salesmen from Sep-
tember 1966 to January 1967 was Charles Wilkes. In
early October, Supervisor Scott and Wilkes rode together
to a nearby General Electric plant to make a service call.
On the way back Scott asked Wilkes what he thought of
the Union. Wilkes answered he had no "reservations on
it either way." Scott also said that there may be a chance
for Wilkes to become a manager in the new building in
Syracuse, to which Respondent was about to move, if
Wilkes kept his nose clean and "stayed on the side with
the Company."
About October 10, while wearing some kind of union
button, Supervisor Fuller told Wilkes that he, Fuller, was
a steward in Union 540. Two or three days after October
13, Supervisor Fitzsimmons told Wilkes that Stewart was
"getting out of hand and ... was going out trying to sign
up the mechanics in the Union and had to let him go for
that reason."
About November 1, Wilkes overheard a conversation
between employee O'Brien and Supervisor Fuller.
Among other things , Fuller told O'Brien that he knew
O'Brien was a union member and one of the union leaders
and if O ' Brien was not careful , he would be walking out
in the streets with a strike sign on his back.
About 2 days before the election was held on
December 22, Respondent assembled its salesmen for a
talk. All salesmen, President Reynolds, and Supervisor
Fitzsimmons were present. President Peter Reynolds,
whom I find to be a supervisor under Section 2(11) of the
Act, addressed the group . Among other things , Reynolds
said that, as the Company was a family-owned organiza-
tion , the employees did not need any outsiders to come in
to tell him how to run the business. Admitting that "a lot
of things weren't right with this place ," Reynolds stated
that he would like to have the opportunity "to make right
the things that weren 't," but he could not correct them all
at once. Therefore, he said, he did not see any reason why
MOTORS, INC. 321
the men should start to organize or have a union at
Reynolds Motors "seeing there wasn't a unionized
dealership in the country"; rather than make Reynolds
Motors a guinea pig, it would be better if "another dealer-
ship take that on," and perhaps a year later the men could
have a union at his place if they really wanted one. He
asked the men not to vote for the Union.
Then Reynolds described and talked about a retirement
plan which he said the Company had been working on for
3 or 4 years, but had not had time enough to "negotiate it"
because different plans with different insurance compa-
nies had been discussed. However, he promised that it
would be put into effect at Reynolds Motors according to
some witnesses. But witness Hayward testified that
Reynolds said that the pension plan was again under con-
sideration after "they held off" because of the investment
involved, but could not be put into effect (his words are
"in the bag") pending the imminent election . Following
this, Reynolds described a new pay plan, which he said
would be good for everybody, presented to him by his ac-
countant and which had been lying on Reynolds' desk for
some time; but, because it was so "fantastic," it needed
some study to determine whether he could handle it.
However, Reynolds stated that he could not then adopt
the pay plan because the "NLRB" did not allow this until
"the thing with the Union was resolved." (The transcript,
p. 74, uses the word " initial" rather than "NLRB" at this
point. My notes show that "NLRB" rather than "initial,"
was mentioned.)
Continuing, Reynolds said that a lot of changes would
be made if the Union came in, including the possibility of
punching a timeclock, the denial to old employees of the
right to come and go as they pleased, and daily writing 20
post cards and making 20 telephone calls.
Thereupon, Reynolds outlined the proposed pay plan
on a blackboard. It was disclosed on the board that the
salesmen would receive a salary of $125 a week plus a
graduated commission for cars and financing plans sold
to customers. It was stipulated at the hearing that this
new pay plan was different from that in existence at the
time of the meeting; it would be more advantageous for
some salesmen and not for others; and some of the
salesmen would interpret the new plan as being superior
to that then in effect. The remarks of Reynolds on the pay
plan were in response to a question from the floor by em-
ployee William Valinkord, being propounded after
Reynolds had stated that he planned to correct inequities.
Reynolds then mentioned that the Union was being
formed by the Teamsters, who are outsiders, and the men
could see the "condition" of the Teamsters due to the
problems of "Mr. Hoffa" with the U.S. Government. He
also alluded to another Ford dealer (Nagle Ford) in
Rochester, whose employees elected a union to represent
them, but because the parties could not agree on a collec-
tive-bargaining contract, went on strike. During the
strike, Nagle' s management continued to operate. Thus,
he said, a dealer does not have to accept a union's con-
tract and can still maintain a business without a contract.
Finally, Reynolds closed with a statement that he had
"twenty charges against me ," and one or two more would
not make any difference, and that no matter what hap-
pened in the election, he was interested in selling cars and
there would be no reprisals.
Another employee of Respondent's who testified for
the General Counsel is Douglas R. Hayward. He was
present when Supervisor Fuller, in late September, asked
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee Harry Stewart how the Union was coming. At
another time (between late September and October 10),
Hayward overheard Supervisor Scott tell Stewart that
Scott wanted to join the Union and offered $5 for that
purpose.
Gerald H. Walkin has been employed as a salesman by
Respondent since November 1965. In late October or
early November 1966, at the Top Notch Diner, Super-
visor Fuller spoke to a group of salesmen which included
Walkin. During the conversation, a salesman asked
Fuller what he intended to do if the Union came in
because the Union was going to get in and Fuller could do
nothing about it. Fuller replied that he knew Pete (who is
Pete Reynolds, Respondent's president) and in his
opinion Pete would not honor any kind of agreement with
a union "or anything like that," and if, after the Union
was voted in, the salesmen went on strike, Pete would
have the managers sell the cars until they were all sold
and then close the doors. On three or four other occasions
Walkin and other salesmen again asked Fuller what he
was going to do about the Union, and Fuller "would come
back with the same remark." Walkin further testified that
Fuller is easily excited, that the salesmen sometimes nee-
dled Fuller on the subject of the Union because Fuller
"was sensitive on this subject," and that he was being
needled when the question was asked him at the Top
Notch Diner.
On another occasion Walkin and other salesmen, as a
joke, gave Fuller a "union badge" to put on and "had him
walk around in the sales office" as part of the joke. Fuller
went along with the joke by laughing. In fact, Walkin
testified that he knew that Fuller was kidding when he
wore the "union button." I find this was done in jest and,
therefore, is not an unfair labor practice. N.L.R.B. v. I.V.
Sutphin Co.-Atlanta, Inc., 373 F.2d 890 (C.A. 5); Sarkes
Tarzian, Inc., 157 NLRB 1193, 1203-05.
B. Respondent's Evidence
Employee Gerald H. Walkin, who had previously given
testimony for the General Counsel, also took the witness
stand for the Respondent. He testified that on and after
Respondent's meeting for its salesmen on October 10, it
was a matter of "common knowledge" that a union or-
ganization campaign was taking place; but that such cam-
paign was not "well-known," and he personally had no
knowledge thereof, prior to the first union organizing
meeting of October 9. However, Walkin did hear Super-
visor Fuller, in July or August, ask employee Stewart in
a kidding tone of voice, "Playing around2 with the Union
again , Harry?" Employee Bob O'Brien was present at the
time. According to Walkin, he heard Fuller repeat this
question to Stewart once or twice prior to October 10,
and also heard Fuller on "various" occasions "discuss"
the Union with Stewart. It was also a "matter of common
knowledge" at Respondent's agency that Stewart had
been involved in prior union activity a few years before
this when employed by Respondent.
At the December 20 meeting held by the Company for
employees, President Reynolds used notes to address the
salesmen, according to Walkin. But sometimes Reynolds
also referred to and read from a paper. Among other
2 "Playing around" is Walkin's direct testimony . On cross he testified
the words were "monkeying around."
3 At the time Respondent occupied premises at 2525 Erie Boulevard,
East , in Syracuse , New York. About November 17 and 18 , 1966, it
moved into the new building . Prior to then , its business was located at
1439 Erie Boulevard, East , in the same city
things Reynolds stated that in places where they have
unions it is possible that men could be required to punch
a timeclock. At this point, an employee asked what were
some of the changes in store for "the coming years." To
this Reynolds replied that a pay plan "had been sitting on
his desk for some time" and that he thought it might be of
some interest to the employees, but he could do nothing
about it. Then Reynolds mentioned that "they had been
talking" about a pension plan for a couple of years, that
he was talking with insurance companies about it at the
time, and "they" could not do anything about it until
Respondent completed construction of its new building.3
Reynolds had mentioned the pension plan and the new
building at a Christmas party for employees in 1965. At
that party he also mentioned " some other plans that we
have future ideas for," but declined to go into these
because he felt he would "get into this" after the new
building was completed, according to Walkin.
Sometime between April and June 1966, while Walkin
was talking to President Reynolds about other topics,
Reynolds "discussed an extensive pay plan and the past
pay plan" with him. The wage plan then in existence
came into effect on February 1, 1966, displacing a system
of remuneration adopted in 1964 and modified in 1965,
according to Walkin. In that conversation Reynolds also
told Walkin that if "we" came across anything which
would sell more cars, it would help employees and
Reynolds would "go into it."
Another witness for Respondent is Fran Fuller, its
truck manager. His testimony follows. He first learned of
the Union's organizing efforts in the first part of October
1966. At one point, he stated he acquired this knowledge
the Saturday before the Union's meeting of October 9.
Later he testified he had no such knowledge prior to Oc-
tober 10. Since elsewhere in this Decision I find that he
mentioned the Union at the Company's meeting of Oc-
tober 10 for salesmen, I find that he had knowledge of
union activity at Respondent's automobile agency prior
to October 10. However, Fuller further testified that
occasionally,4 prior to October 10, he had conversations
with employee Harry Stewart in which he "kidded Mr.
Stewart about the Union," and it was "common
knowledge" among the salesmen that he so kidded . Fuller
claimed he did so because "it was known Harry tried to
organize the Union [in the past] and failed in attempting.
And we always discussed this kiddingly and many times
kidded Harry about the Union." Some of the language
Fuller used at various times in thus talking to Stewart
was, "How is the Union coming? What are you doing,
Harry? Similar things like starting a union .... Come on
Harry, stop trying to form a union." Fuller named two
employees who overheard this. But at these times Fuller
had "no knowledge Mr. Stewart was organizing a union."
Fuller initiated the talks he had with Stewart above
described.5
On October 26, President Reynolds admonished
Fuller not to mention the Union, and to be "quiet." On
cross he stated he was told to keep his mouth shut about
"it" because he "might or could be violating a labor law."
The following day, October 27, President Reynolds
called a meeting of all his managers and instructed them
" This is on direct On cross Fuller testified he "always" kidded
"Stewart about. . . starting a union."
' On cross-examination , Fuller testified that he sometimes told Stewart
to "quit forming a union , Harry."
REYNOLDS MOTORS, INC. 323
to say nothing about the Union to the employees
"because possibly we were violating labor laws by men-
tioning it to the people ." To his knowledge Fuller did not
discuss the Union with employees during November.
Further, Fuller does not believe he discussed the Union
with employee O'Brien after October 26. In his cross-ex-
amination , Fuller admitted that, prior to October 10, he
"discussed union" with the sales force and "said a few
things [he] shouldn't have said," but "didn't know [he]
was violating any rules at the time."
Fuller further testified that he did not "kid" any em-
ployees about the Union after October 26, and, to his
knowledge, did not discuss the Union after that date; that
he does not remember talking about the Union at the Top
Notch Diner and, if the Union was mentioned, he "got
right off the subject"; and that about November 1, em-
ployee O'Brien may have "brought up the subject," but
Fuller tried "to get away from it." However, on cross-ex-
amination , Fuller replied , " I don 't know ," to the
question , "When you talked to [employee] Harry
Stewart on these occasions, did you in fact make it clear
to him at the time you were not interested in the Union
and you didn't feel it would do any good?"
Fuller asserted that he first learned that Stewart "was
serious about the Union" on the Saturday (October 8)
preceding Respondent 's meeting for employees on Oc-
tober 10.
Howard N . Scott , Respondent 's leasing manager,
whom I have above found to be a supervisor under Sec-
tion 2(11) of the Act, also was tendered as a witness by
Respondent. A conspectus of his evidence follows. Scott
did not learn of the Union's organizing activity at
Reynolds Motors until Supervisor Fuller "brought it out"
at Respondent's meeting of October 10 held for its em-
ployees.
Accompanied by employee Charles Wilkes, Scott
drove to a nearby General Electric plant to make a ser-
vice call between October 1 and 7. Although the two en-
gaged in "general conversation ... normal" during the
trip to and from General Electric, the Union at no time
was discussed. However, Scott did say that if Wilkes
"kept his nose clean and kept his job, he would have a
chance to get into a manager's job, where he wanted to
be." At no time prior to October 10, did Scott speak to
employee Stewart on the subject of unionism.
Still another witness for Respondent is Richard P. Fitz-
simmons , its new-car sales manager whom I have already
found to be a supervisor under Section 2(11) of the Act.
A synopsis of his testimony is here narrated.
About July 1, 1966, Harry Stewart was rehired by
Respondent. At that time Fitzsimmons told Stewart that
President Reynolds "was against" Stewart being rehired,
but that Stewart was accepted on the "say-so" of Fitzsim-
mons and "against the wishes" of Reynolds. Stewart as-
sured Fitzsimmons that he (Stewart) would be a "top
producer." In the middle of September, President
Reynolds decided to terminate Stewart's employment but
Stewart was not informed of this because Fitzsimmons
feared Stewart would take his customers with Stewart
during the rush season about to start. However, Stewart
was not discharged until October 13. Fitzsimmons ac-
tually performed this act by telling Stewart that he,
Stewart, was "all done" for "nonproductivity" and that
it was Fitzsimmons own decision; but Fitzsimmons did
not mention that a decision had been arrived at in Sep-
tember to discharge Stewart. On October 10, Fitzsim-
mons first became "aware" of Stewart's union organizing
activities.
Further, Fitzsimmons explained that Stewart was not
fired in September only because Respondent was "trying
to build up a sales force at the time ... to handle the new
car showing" which was scheduled for September 29 or
30. During the ensuing week, known as Introduction
Week, i.e., October 3 through October 8, an "accumula-
tion" of salesmen is needed to accomodate the large
number of customers anticipated at this peak season
(Fitzsimmons called it a "fantastically busy period")
when new cars are introduced on the market.
Describing a salesman's "production," Fitzsimmons
testified that the standard used was the total number of
automobiles sold and delivered by him monthly. A
salesman's production is not judged solely by the number
of cars sold by him, for "many" or quite a "few" cars
which are sold are not delivered to the customer. This is
because customers sometimes "back right out of a deal."
Commissions to salesmen are paid when the "deal is con-
summated" by delivering a car to a customer. Each type
of car has a given number of units assigned to it for pur-
poses of ascertaining a salesman's monthly production. A
salesman is credited with the applicable amount of units
when he completes delivery of a car.
Stewart's production record (as denoted on Resp. Exh.
1) discloses that in the interval elapsing between July 21
and October 13, he earned 10 credits in the following
manner: 2 in July, 5 in August, 2 in September, and 1 in
October.
In addition, Stewart consummated some sales orders
prior to October 12, which were either canceled or
delivery thereon was made after October 13. The list fol-
lows:
Date of Date of
Kind of Car Customer's Name Date of Sale Cancellation Delivery
4-door 1967 Rosier October 11 December
Thunderbird
4-door 1967 Koltzi October 11 January,
Thunderbird 1967
Ford 1967 XL Marie L. Kasik September 16 October 31
Convertible
Not in Record Haldenburg October 3 After October 13
Not in Record Gentile October 1 About December
1967 Ford Emile Hordwarty September 3 November 10
Country Squire
310-541 0 - 70 -22
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Delivery on 4-door Thunderbirds took 8 to 12 weeks
after sale. This is because they were popular and
"scarce.") Stewart also sold and delivered a car in Sep-
tember for which he received no production credit. This
is because the customer asked for salesman Kelly, who
was not in at the time. Only Kelly was credited with the
production unit, but Stewart shared the commission with
Kelly.
However, other salesmen acquired an unsatisfactory
number of units during this same period. Thus, salesman
Finkbeiner received eight units. However, Finkbeiner,
who was hired in 1954 and is about 65 years old, had been
"quite ill" and did not work full time. Employee John
Kelly, hired in 1950, accumulated five units, but he is an
older man who has had a heart attack and does not put in
a full day of work. Employee Fred Lull's credits total 13,
but his "relatively low production" may be attributed to
the fact that he was a new salesman, hired on April 25,
and did not have prior car-selling experience.
Robert O' Brien , according to Fitzsimmons, is one of
Respondent's best salesmen, but his units for the period
involved total but 13. This is accountable by the fact that
O'Brien had family difficulties. However, O'Brien
produced 140 units in 1966, "well below his average."
Don Serafine, about age 65 and with the Company since
1958, produced nine units, but this may be ascribed to the
fact that he took a 2-week vacation in August and also to
his age. Serafine's total units for 1966 is 72. Jim Vaeth's
12 units, a low figure, are due to his taking a 2-week vaca-
tion in August. Moreover, as a 74-year old man, Vaeth
nevertheless produced 84 units for 1966. Fitzsimmons
said there was no reason for Gerald Walkin's 12 units, but
added that Walkin, "did a very good job for us" in the
"first part of the year" 1966, having produced 71 units.
Howard Kollusch produced five units, but he was hired
on September 19, and had not previously sold cars. Cliff
Wells had but one unit but he worked only from Sep-
tember 20 to October 6. And Charles Wilkes, who was
credited with seven units, was hired on September 1, and
quit in February 1967.
Continuing his testimony , Fitzsimmons claimed that
Stewart's total production of 10 units from July 21 to Oc-
tober 12, "for an individual as Mr. Stewart [with] ... his
experience in this business ... is poor production," and
that Stewart would have been let go in late September,
except that Fitzsimmons needed him "in this period of
time." Further, Fitzsimmons asserted that he expected
eight units a month from an experienced man.
About the middle of the afternoon of October 13, Fitz-
simmons discharged Stewart. At that time Fitzsimmons
was cognizant of Stewart 's union organizing activity, hav-
ing first acquired such knowledge at the October 10
meeting , held by Respondent for its salesmen, charac-
terized by Fitzsimmons as "Fran Fuller's meeting." Fitz-
simmons was "not really " happy with Stewart 's union or-
ganizing activity, and "would prefer there had been no
union organizing activity." Nevertheless, Stewart was
not fired for this activity. Rather, he was discharged on
that particular day because "he had been out bothering
our help." But the reason motivating the discharge was
"nonproductivity." In addition, Fitzsimmons was irked
because on October 12, Stewart "had a pretty good deal
going" but let a customer walk away before checking with
the sales office. In such instances the Company has a
"firm rule" that a salesman "is to check with the sales of-
fice before he lets a customer go." This was "one of the
reasons" for discharging Stewart. However, if Stewart's
production was good, this incident would have been over-
looked by Fitzsimmons.
Further, Fitzsimmons discussed with President
Reynolds the compensation system of Respondent since
April 1966, when he returned to Respondent's employ. In
mid-summer this system was further considered by the
two because salesmen had put " a little heat on
[Fitzsimmons] to look at the plan we had previ-
ously." The two felt "a better incentive" was needed
when the Company moved to its new building.
At the December 20 meeting, President Reynolds read
from a "text" consisting of five or six pages in addressing
the salesmen , according to Fitzsimmons ; but he some-
times departed from the text in uttering some remarks. In
addition, Reynolds answered "plenty" of questions
"asked from the floor " at the termination of the meeting.
In referring to timeclocks , Reynolds compared Respond-
ent's practice with that of "places which had been under
a union contract"; but he did not imply that Respondent
would "institute" a timeclock if the Union succeeded in
the impending election . However , Fitzsimmons does not
recall that the subject of postcards and telephone calls
was brought up by Reynolds.
About October 26, President Reynolds told Fitzsim-
mons to direct the supervisors of Respondent not to con-
verse with the employees "in any way" as to any activi-
ties which were going on pertaining to union organization.
Fitzsimmons did so instruct them. The next day
Reynolds met with all the supervisors and reiterated to
them the foregoing instruction. Those present then
"started talking about union relationships at the time."
On cross-examination Fitzsimmons stated that he told
Stewart at the time of rehire on July 21 that Fitzsimmons
preferred that Stewart "have himself off the floor" and
rebuild his old "customer force," and that the people to
whom he sold cars since July 21 were in fact Stewart's
old customers . Fitzsimmons also stated that , in evaluat-
ing production , he also considered , in addition to sales
and deliveries, "a man's doing what he's supposed to do
to get business and ... if the man's working when he's on
the floor"; i.e., "what he had done to get business."
Stewart was let go on a Thursday, in the middle of a
workweek. Yet three salesmen were hired in September
1966, because for 2 weeks after introduction week the
"rush season" is on and salesmen are needed. Cf.
McCormick Longmeadow Stone Co., Inc., 155 NLRB
577, 579, enfd. 374 F.2d 81 (C.A. 1). In fact Fitzsim-
mons is "hiring when the [new ] cars come out" because
he "would have more traffic during those times."
Further testifying on cross-examination , Fitzsimmons
said that salesman Finkbeiner produced 48 units "on a
12-month basis" or an average of 4 units a month; Doug
Hayward produced 58 units and John Kelly 34 units in
the same period. Admittedly, eight units a month on
average are not produced by all salesmen , although these
particular men have been retained in Respondent's em-
ploy. In fact, although Walkin produced only one unit in
November and six in December, he did not lose his job.
George B. Osman is one of Respondent ' s new car
salesmen. In August he told President Reynolds that the
business "needed a more stable plan to salary plus some
kind of bonus." Reynolds replied that he had thought of
this "for a period of time," at the end of the year he
"would see how things were working ," and he intended
to change the pay plan or compensation system. The
parties also stipulated that "a new car salesman" of
Respondent, if called, would testify that in July President
REYNOLDS MOTORS, INC. 325
Reynolds indicated that at the close of the year 1966 con-
sideration was going to be given to changing the method
of compensating salesmen.
Since 1962, Robert Burkard has been Respondent's
comptroller and assistant secretary. A synopsis of his
testimony is set forth in this paragraph . In February
1966,6 a change was instituted in Respondent's compen-
sation system for its salesmen to comply with the New
York minimum wage law which placed a floor of $1.25 an
hour on wages. Such law covered Respondent's
salesmen. This new plan of Respondent's guaranteed its
salesmen $75 a week. About June 27, Respondent ascer-
tained that, starting January 1, 1967, the minimum hourly
wage of its salesmen would be increased to $1.50 an hour
under the New York State minimum wage law. As a
result, President Reynolds, in December 1966, asked him
to prepare "an alternative plan." Burkard did so, suggest-
ing to Reynolds a plan calling for a guaranteed salary of
$125 a week and at least $1 .50 an hour. Only the $1.50 an
hour aspect thereof had been put into effect as of the time
of hearing , so that the $75 a week minimum guarantee
still had not been increased as of then. Hence, only those
salesmen of Respondent 's working over 50 hours a week
would receive more than the guarantee of $75 a week.
Respondent's final witness was its president, Peter
Reynolds. He addressed the salesmen on December 20.
A question from the floor led him to comment that some
pay plans were under consideration, but the details were
not disclosed until he had concluded his prepared speech.
That speech was made from notes held in his hand which
he read to the men. Among other things, he mentioned
health insurance, life insurance, and pay plans of three or
four other Ford dealers in town. An abstract of the
remainder of the speech is set forth in the ensuing para-
graphs.
Comparing Respondent's pay plan with Ford competi-
tors in town, Reynolds emphasized that his men were
drawing a minimum of $75 a week with a monthly wash-
out; i.e., no deficit would be charged against this draw if
at the end of a given month a salesman's commissions
amounted to less than $75 times the number of weeks in
that month. Moreover, he told them his salesmen were
not required to share any part of their commission with
the Company, although some other Ford dealers had
adopted this practice. Then he described Respondent's
health insurance , life insurance , additional disability in-
surance for those with at least 1 year's service, vacations,
holidays, and personal use of Respondent's demonstrator
cars by its salesmen.
After this, Reynolds explained the cost to Respondent
of "this compensation and insurance program," and re-
lated the specific amounts of such expense. Asserting that
Respondent's pay system and fringe benefits at least
equaled those of any Ford dealer in town and were su-
perior to those of most such dealers, Reynolds com-
mented that he knew many of his listeners were interested
in a salary . Mentioning that Respondent was an "innova-
tor" of salary plans in 1961 and 1965, Reynolds pointed
out that Respondent was the first Ford agency in
Syracuse to inaugurate a plan involving basic salary and
"overriding profit" for salesmen. (This continued until it
was modified on February 6, 1966, as described above by
Comptroller Burkard.) Telling the men that "under the
law we can't make any promises at this time," he assured
them "we understand your legitimate concerns and if fu-
ture circumstances allow, we certainly intend, as we have
done in the past, to be leaders in economically possible
new and better plans, including salary plans."
At this point, Reynolds asked for questions from the
floor. Employee Valinkord asked if Reynolds had a salary
plan "ready to go" and, if so, would it be put into effect.
Being uncertain whether he could answer "that type of
question," Reynolds "held back" a reply. However,
Reynolds outlined on a blackboard and discussed the
basic salary of $125 a week (mentioned above by Comp-
troller Burkard), stating that he had previously gone over
it with Burkard.
Reynolds did not "believe" that the subject of post-
cards and telephone calls came up in his said talk to the
salesmen, but "thought" one of the salesmen made some
statement about these two topics. But Reynolds did men-
tion that he departed from his notes and "ad libbed" that
union contracts contain strict work rules, cause regimen-
tation and loss of independence, and that if Reynolds
signed a contract with a union, they might have to punch
timeclocks. He asked the men to check other union con-
tracts, to see if they wanted to work "under those condi-
tions," because Respondent treats its employees as in-
dividuals and has very few work rules. In fact, he said,
some other companies have timeclocks and strict working
conditions. In this respect, Reynolds enumerated benefi-
cial practices of Respondent, such as permissible lateness
in reporting to work, special weekends off, and switching
floor time with another salesman.
Continuing, Reynolds told the men he objected to
Respondent's being made a guinea pig because no other
automobile agency in the county was organized. Since an
election was going to be held at the Ford dealerships in
the county operated by Aloi and Romano, respectively,
he asked the men to wait until they can appraise what the
Union accomplished there, if elected. And if there are
strikes, work stoppages, and delays, let them occur at
those places (i.e., Aloi's and Romano's), Reynolds ad-
monished his audience. Then, he continued, in another
year there can be an election at Reynolds Motors, at
which time the salesmen can make a decision on the
"worth of the Union." He urged the men to give him a
year to get the new plant in shape and "see what we can
all do working together ... [to] make more money for
everybody." He exhorted them to aid him, now the No.
2 Ford agency in the county, to pass Koerner, the No. 1
agency at that time. But Reynolds denies that he stated he
was contemplating the elimination of certain privileges
enjoyed by older employees. (There are four of such old
timers, viz, Vaeth, Serafine, Kelly, and Finkbeiner.)
Employee Serafine asked about a retirement or pension
plan. Reynolds replied that he was interested in one since
1964 and had received five or six plans from several in-
surance companies , the last in April 1966. Since this in-
volved an expenditure of "an awful lot of money," he
"couldn't take the load," but would "wait until the new
building before the pension plan" would be considered.
He told the men a recent plan submitted by Palisades Life
Insurance Company was under consideration.
Reynolds went on to say that even if the Union won the
election, this did not mean a collective-bargaining con-
tract would be signed right away because it would have to
be negotiated and having union representation did not au-
6 President Reynolds testified this change took effect on February 6,
1966.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomatically raise wages. Then he said that a union had
won an election at Nagel Ford and he was "concerned
with Nagel Ford in the context of strikes"; a strike oc-
curred at Nagel because they were unable to negotiate a
contract ; and Nagel continued to operate during that
strike , sold more cars than usual , and actually won a sales
contest in that period. But Reynolds said he did not want
strikes, but, rather , desired to sell cars. He also told his
listeners that salesmen frequently , as at Nagel Ford, "end
up for one reason or another out of the agency -we don't
want to lose our current sales force . We think we can sell
more cars by all of us working together. In this way, you
make more money and we make more money ." He also
said Taylor Chevrolet in Rochester "may be for sale
because their union can 't negotiate a contract."
Finally, Reynolds assured his listeners no reprisals
would be taken against them regardless of the outcome of
the election.
C. Concluding Findings and Discussions
1. As to the discharge of Harry Stewart
It is my opinion, and I find, that Harry Stewart was
discharged on October 13, 1966, for activity on behalf of
the Union, and that the reason given to him at the time of
his discharge, i.e., nonproductivity, is a pretext to cover
or disguise the real reason. This ultimate finding is based
upon the entire record and the subsidiary findings enu-
merated below, which I find as facts. Upon this issue I
expressly rule that, as a matter of law, the burden of proof
is upon the General Counsel to establish by a fair prepon-
derance of the evidence that Stewart's discharge con-
travened Section 8(a)(3) of the Act.
(a) Stewart was very active in organizing the salesmen
and was the prime mover in introducing the Union to the
salesmen . Respondent 's brief concedes this and refers to
him as a principal in the union movement. This alone
means nothing; but it may be considered , along with other
facts found herein , in ascertaining the true motive
prompting a discharge claimed to have been made for
cause . "Obviously, the discharge of a leading union ad-
vocate is a most effective method of undermining a
union . . . " N.L.R.B. v. Longhorn Transfer Service, Inc.,
346 F.2d 1003, 1006 (C.A. 5).
(b) Respondent had knowledge of Stewart 's union ac-
tivity prior to the date of his discharge on October 13.
Patently, such activity was revealed or disclosed at the
meeting of October 10 , held by Respondent for its
salesmen at which Supervisors Fuller and Fitzsimmons
were present . But I find that Respondent had knowledge
of such activity by Stewart prior to October 10, for two
reasons : ( 1) As a result of Respondent 's small work
force , I find that the Board's small plant rule is operative.
Pursuant to this rule, and on the entire record, including
the open nature of Stewart 's union organizing conduct, it
is reasonable to infer-and I find-that news of Stewart's
activity came to the attention of Respondent 's super-
visors after he became engaged in it and prior to October
10. New French Benzol Cleaners and Laundry, Inc., 139
NLRB 1176, 1179; American Grinding & Machine Co.,
150 NLRB 1357, 1366; Angwell Curtain Company, Inc.
v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7); N.L.R.B. v.
Joseph Antell, Inc., 358 F .2d 880 , 882 (C.A. 1). (2) I
credit Stewart that Supervisor Fuller, on or about Sep-
tember 20 and 22 or 23, asked Stewart how Stewart's
union was coming along . This question warrants the con-
clusion that Fuller was aware of Stewart' s union activity,
and I so find.
(c) Timing is significant. Thus, Stewart was
discharged not long (3 days) after Supervisor Fuller men-
tioned to the assembled salesmen on October 10 that he
knew of Stewart' s union meeting the day before (October
9)., and Stewart's reply to Fuller in the same meeting that
he, Stewart, conducted the union meeting of October 9,
and described what went on at it. Respondent's evidence,
inconsistent with the findings in this paragraph, is not
credited, although it need not be restated here. (It is nar-
rated above in section III, B , where Respondent's
evidence is set forth.) A "Trial Examiner is not compelled
to annotate to each finding the evidence supporting it."
Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB
1159, 1161.
In this respect I find that at this October 10 meeting
Fuller warned Stewart "If you don't watch out, Harry,
you're going to lose your job due to labor activity."
Respondent's contrary evidence is not credited. This
statement carries weight in determining the actual reason
for Stewart' s discharge 3 days later.
On this aspect of the case , Respondent insists,
and adduced evidence , that Stewart would have been
discharged in September , but he was retained solely
because the first 2 weeks of October represented the rush
season for new cars. But Stewart was not notified of the
fact in September that he was about to be discharged in a
few weeks. Failure to notify him of an imminent loss of
employment cannot be disregarded. Mid-West Towel &
Linen Service, Inc., 143 NLRB 744, 754, enfd. 339 F.2d
958 (C.A. 7). Nor was Stewart warned that his poor
production rendered him vulnerable to discharge. Failure
to warn is some indication of a discriminatory intent in
discharging an employee. Dunclick, Inc., 159 NLRB 10,
16; N.L.R.B. v. Melrose Processing Co., 351 F.2d 693
(C.A. 8); N.L.R.B. v. Whitin Machine Works, 204 F.2d
883, 887 (C.A. 1); Amerace Corporation, 162 NLRB
338,344-345.
Respondent's contention that it did not desire to notify
Stewart in advance of his forthcoming discharge because
he would then bring his customers with him to another
agency is unimpressive for two reasons. (1) If, as
Respondent contends, Stewart was a poor producer, then
he had few customers to take away with him when he
would be terminated. Hence, even on Respondent's
theory, an insubstantial loss of business would result by
Stewart's discharge in September. (2) If, however,
Stewart was retained solely to make sales at a time when
sales of new cars were spurting or booming , then it was
not Stewart's bringing in customers which Respondent
desired but, instead, a man who would aid in handling a
temporary increase in the purchase of automobiles. But
the cars sold themselves at this critical period. Therefore,
I cannot find a reasonable apprehension that Stewart's
discharge.prior to this short (2-week) rush period would
have materially harmed Respondent's sales.
(d) In addition, I find that the manner of Stewart's
discharge has probative value. In this respect, I find that
Stewart was abruptly discharged in the middle of a work-
week and at a time when the rush period for selling new
cars had not yet ended. If, as Respondent contends, it
kept Stewart on after September to make sales in the Oc-
tober season when sales were plentiful and sales person-
nel were acutely in demand , then no rational basis exists
for his sudden termination while sales were booming.
REYNOLDS MOTORS, INC. 327
"The abruptness of a discharge and its timing are persua-
sive evidence as to motivation." N.L.R.B. v.
Montgomery Ward & Co., Inc., 242 F .2d 497,502 (C.A.
2), cert . denied 355 U.S. 829 ; N.L.R.B. v. L.E. Farrell
Company, Inc., 360 F . 2d 205 , 208 (C.A. 2).
Supervisor Fitzsimmons seeks to minimize the forgo-
ing by stating that Stewart was preciptately discharged
because Stewart "had been out bothering our help," and
because on October 12 Stewart allowed a potential
customer to leave without "checking with the sales of-
fice." Neither contention is convincing . Neither Fitzsim-
mons nor any other witness described the nature of
Stewart 's conduct in bothering the help , so that I am una-
ble to determine whether he did anything wrong . Besides
Stewart was never so informed . Failure to mention a
specific fault to an employee when he is dismissed sup-
ports an inference that the layoff was discriminatory.
N.L.R.B. v. Griggs Equipment , Inc., 307 F.2d 275, 278
(C.A. 5). Cf. N.L.R.B. v. Plant City Steel Corp., 331
F.2d 511 (C.A. 5). 1 draw this inference ,. Further, Fitz-
simmons admitted that the failure to check with the sales
office was minor and would have been overlooked if
Stewart were a good producer . But this was not men-
tioned to Stewart ; and, in addition , Respondent did not
want to lose salesmen at this busy season . Failure to warn
is significant . Dunclick , Inc., 159 NLRB 10, 16;
N.L.R.B. v. Melrose Processing Co., 351 F.2d 693 (C.A.
8); N.L.R. B. v. Whitin Machine Works, 204 F. 2d 883,
887 (C. A. 1). Hence , I do not credit Fitzsimmons that
this failure to check with Respondent ' s sales office
prompted Respondent to discharge Stewart.
(e) Respondent entertained union hostility . Supervisor
Fuller 's conduct , described elsewhere herein in connec-
tion with violations of Section 8(a)(1) of the Act , demon-
strates a dislike of unions and a warning to Stewart of the
hazard of being discharged for union activity . And Super-
visor Fitzsimmons admitted on direct examination that he
was not happy with Stewart 's union organizing activity
and preferred no union organizing of Respondent's
salesmen . ( I do not rely on President Reynolds ' antiunion
statements of December 20, as they were uttered after
Stewart 's discharge on October 13.)
Of course , union animus is not an unfair labor practice
and this alone will not render a termination illegal.
N.L.R.B. v. Howard Quarries , Inc., 362 F .2d 236 (C.A.
8); N.L.R. B. v. Covington Motor Company , Inc., 344
F.2d 136, 138 (C.A. 4); N.L.R. B. v. Threads , Inc., 308
F.2d 1, 8 (C.A. 4). But it is a factor which may be con-
sidered in evaluating the reason for an employee's ter-
mination . N.L.R.B . v. Georgia Rug Mill , 308 F . 2d 89,91
(C.A. 5).
(f) "Direct evidence of a purpose to discriminate is
rarely obtained, especially as employers acquire some so-
phistication about the rights of their employees under the
Act; but such purpose may be established by circumstan-
tial evidence ." Corrie Corporation of Charleston v.
N.L.R.B., 375 F.2d 149 (C.A. 4). See N.L.R.B. v.
Putnam Tool Company, 290 F . 2d 663 , 664 (C.A. 6).
Hence , it is not uncommon for an employer to point to
real or imagined shortcomings of an employee as the
reason for a discharge . Stewart 's shortcoming is said to be
nonproductivity . But I find that he did as well or better
than many other employees during the short time he was
reemployed by Respondent ; i.e., from July 21 to October
13,1966.
Respondent attempts to rationalize its action by argu-
ing that the other employees who produced less units than
Stewart were either oldtime employees not devoting full
time to their work or new , inexperienced employees. But
this contention is not well taken on the record unfolded
before me . If Respondent was interested in production,
then it is difficult to understand why it retained so many
old timers and hired inexperienced help. Cf. N.L.R.B. v.
McCormick Longmeadow Stone Co., Inc., 374 F.2d 81,
82, fn . 2 (C.A. 1). Three inexperienced salesmen were
hired after the decision in mid-September to discharge
Stewart . Cf. Ventre Packing Co ., Inc., 163 NLRB 540,
541. But , Stewart was experienced , and his slack period
occurred in the summer months when business is admit-
tedly slow. Further , Stewart was not given any apprecia-
ble opportunity during good times (i.e., following the
summer slump in business ) to develop his sales . For, if
Respondent is to be believed that it decided to let him go
in September, only his production in unusually slow times
(July 21 to the middle of September) became the measure
of his ability. This arbitrary attitude , i.e., judging his
production in the 2 dull months when no one was ex-
pected to do well , may be considered in determining the
true reason for his discharge . Cf. N.L.R.B. v. Firedoor
Corporation of America, 291 F.2d 328, cert. denied 368
U.S. 921 (C.A. 2).
There can be no doubt that poor production constitutes
a lawful ground for discharge , and I so find. But I further
find that even if Stewart ' s production was poor, the
motivating or substantial reason for his discharge was his
union activity rather than his inadequate production. It is
not necessary to show that such activity is the only
reason for his termination . It is sufficient to condemn the
discharge as illegal "if discrimination is a substantial or
motivating reason, despite the fact that other reasons may
exist." N.L.R.B. v. Whitin Machine Works , 204 F.2d
883, 887 (C.A. 1). "The mere existence of valid grounds
for a discharge is no defense to a charge that the discharge
was unlawful, unless the discharge was predicated solely
on those grounds, and not by a desire to discourage union
activity." N.L.R.B. v. Symons Manufacturing Co., 328
F.2d 835 , 837 (C.A. 7); N.L.R.B. v. Lexington Chair
Company, 361 F.2d 283 , 295 (C.A. 4). I also find that
"the permissible grounds alone would not have led to the
discharge ." N.L.R.B. v. Park Edge Sheridan Meats, Inc.,
341 F.2d 725, 728 (C.A. 2).
2. As to interference, restraint, and coercion
Supervisor Fuller on about September 20 and again on
about September 22 or 23 asked employee Stewart how
Stewart 's union was coming along . I do not credit Fuller
that he was unaware that Stewart was at that time or-
ganizing a union and that Fuller 's questions were directed
at Stewart 's prior unsuccessful attempt a few years before
1966 in organizing Respondent 's salesmen . I find that
knowledge of Stewart 's current union activity by Fuller
may be inferred under the Board 's small plant rules. That
rule, with supporting authorities, is discussed above in
connection with the discharge of Stewart . The above
questions contravene Section 8 (a)(1) of the Act. Bourne
Co. v. N .L.R.B., 332 F .2d 47 (C.A. 2); Johnnie 's Poultry
Co., 146 NLRB 770, 775. Even if Fuller , as he claims,
lacked knowledge of Stewart ' s current activities, the
result would still be the same, i .e., the questions are coer-
cive because they exceeded the permissible limits of
legitimate inquiry sanctioned by the Board. Johnnie's
Poultry Co., 146 NLRB 770, 775. Thus I conclude, and
rule, that the test of whether questions asked employees
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about their union activities are proper does not depend
upon whether the questioner was aware that a union cam-
paign was in fact being carried on contemporaneously
with the interrogation. As I read the Board's cases on this
subject, the test is whether (a) the purpose of the question
is legitimate and (b) whether the employer transgresses
the boundaries of safeguards applicable to the "necessi-
ties of the legitimate purpose." Johnnie's Poultry Co.,
supra, at 775. And the "total background of facts and cir-
cumstances" may be looked at to observe whether lan-
guage uttered is coercive. Corrie Corporation of Char-
leston v. N.L.R.B., 375 F.2d 149 (C.A. 4). In this con-
nection, I find that Fuller's interrogation does not appear
to serve any legitimate purpose. N.L.R.B. v. Louisiana
Manufacturing Company, 374 F.2d 696, 699-701
(C.A. 8).
Supervisor Fuller also on October 10, at the meeting of
salesmen called by Respondent, made certain statements
to Stewart. They are set forth above and need not be re-
peated here. Although Fuller admitted some of them, I
find that he made all of them attributed to him by the
General Counsel's witnesses. Respondent's evidence is
not credited to the extent it is not consonant with the
General Counsel's version of this aspect of the case. I
find Fuller's said utterances constitute coercive inter-
rogation, create the impression of surveillance of a union
meeting (Jervis Corporation, 159 NLRB 262, 263-264),
and threaten Stewart with reprisals for engaging in union
activity. It is no defense that Supervisor Fitzsimmons
stopped Fuller from continuing his antiunion talk and told
the salesmen that it was up to them whether they wanted
a union or not. This is because Fitzsimmons neither ex-
pressly repudiated Fuller's statements nor assured the
employees that no reprisals would be visited upon any
salesman engaging in union activity. Furr's, Inc. V.
N.L.R.B., 381 F.2d 562, 566-567 (C.A. 10).
About October 10, Supervisor Scott sought to join the
Union and offered Stewart $5 for the purpose. I find
nothing illegal in this incident. Accordingly, I find it does
not amount to interference, restraint, or coercion. About
the same day, Supervisor Fuller wore some kind of union
button in his lapel, told Stewart that he, Fuller, was a
union steward, and offered to "help" Stewart whenever
Stewart was away from Respondent's premises. I find
that, although this was a crede mockery of Stewart's or-
ganizing efforts, it does not constitute interference,
restraint, or coercion, and, therefore, does not transgress
Section 8(a)(1) of the Act.
Not long after Stewart was discharged, Supervisor
Fitzsimmons told employee O'Brien that Stewart was
discharged for causing unrest among the salesmen and
employees at Reynolds Motors, but insisted that Stewart
was not discharged for union activity as contended by
O'Brien. In view of this denial by Stewart, I find that the
language used by Fitzsimmons in characterizing the
reason for Stewart's discharge does not constitute inter-
ference, restraint, or coercion which is prohibited by Sec-
tion 8(a)(1) of the Act. Similarly, I find no violation in Su-
pervisor Fuller's remarks to O'Brien on about October
13 that Respondent would do everything it could to make
things nice for employees so they would know what they
were missing when they would be picketing in the follow-
ing January.
On the other hand, I find that Supervisor Fuller, in
November, responding to a question about the Union
from an employee, answered, in the presence of employee
O'Brien, that such employee should ask O'Brien as
O'Brien is one of the leaders in the union movement and
attended the union meeting. Respondent's evidence in-
consistent with this finding is not credited. I find this is in-
terference, restraint, and coercion transgressing Section
8(a)(1) of the Act, as it gives the impression of surveil-
lance. Jervis Corporation, 159 NLRB 262, 263-264. It
is no defense that Fuller, replying to O'Brien's inquiry in
the same conversation, stated that he did not see O'Brien
at the meeting. The vice of Fuller's statement lies in its
coercive effect in that Fuller let it be known that he some-
how managed to acquire news of that meeting by surveil-
lance directly or indirectly. And that effect is not
ameliorated merely because Fuller was unable to prove
that he saw O'Brien there. The test of coerciveness is
"whether the conduct in question had a reasonable ten-
dency in the totality of the circumstances" to intimidate.
Corrie Corporation of Charleston v. N.L.R.B., 375 F.2d
149 (C.A. 4). 1 find such reasonable tendency in this in-
cident.
In early October, Supervisor Scott asked employee
Wilkes, a witness for the General Counsel, what Wilkes
thought of the Union. Absent a showing of a necessity for
this information, I find it was not elicited for a legitimate
purpose. Cf N.L.R.B. v. Firedoor Corporation of Amer-
ica, 291 F.2d 328 (C.A. 2). Accordingly, I find it is inter-
ference, restraint, and coercion prohibited by Section
8(a)(1) of the Act. In this same talk Scott hinted that
Wilkes would be promoted if he kept his nose clean and
remained on the Company's side. I find this is not inter-
ference, restraint, or coercion, and, therefore, does not
contravene Section 8(a)(1) of the Act.
Wilkes further testified that Supervisor Fitzsimmons
told Wilkes that Stewart was discharged for trying to
recruit the Respondent's mechanics into the Union. But
I do not credit Wilkes on this because neither Stewart nor
any other witness in the case testified that Stewart was at-
tempting to organize the mechanics. All the evidence in
the case points to the fact, which I find, that Stewart
sought to organize only Respondent's salesmen. It is dif-
ficult to believe that Fitzsimmons would refer to activities
of Stewart which never occurred so far as the record dis-
closes.
Wilkes also testified that he overheard Supervisor
Fuller tell employee O'Brien that Fuller knew O'Brien
was a union member and that, if O'Brien was not careful,
O'Brien would be walking in the street carrying a picket
sign . But O'Brien , who likewise testified for the General
Counsel, did not mention this incident in his testimony.
Because O'Brien said nothing about it, I find that this
event did not occur. Hence, I do not credit Wilkes.
Sometime in late October or early November 1965, Su-
pervisor Fuller was asked by an employee, in the
presence of other employees at the Top Notch Diner,
what Fuller intended to do if the Union came in. Fuller
replied that in his opinion President Reynolds would not
honor any agreement with a union and, if the salesmen
struck, Reynolds would close the doors when all the cars
on hand were sold. Respondent's contrary evidence is not
credited. I find this is a threat of reprisals condemned by
Section 8(a)(1) of the Act, even though expressed as an
opinion. N.L.R.B. v. Louisiana Manufacturing Com-
pany, 374 F.2d 696, 701-702 (C.A. 8).
I find that Fuller was nervous and excitable, and could
be easily "needled," and was often "needled" by em-
ployees about the Union. But his unfair labor practices
may not be justified because he was "needled." For I find
that his emotions were neither uncontrollable nor of a na-
REYNOLDS MOTORS, INC. 329
ture to cause him to be unable to apprehend what he was
saying or doing. Hence , I find that his conduct was volun-
tary and that Respondent is accountable therefor.
About December 20, President Reynolds spoke to the
salesmen . This was 2 days before the election scheduled
for the salesmen in Case 2-RC-4039. Although Reynolds
uttered many statements against the Union and urged the
salesmen to reject it in the forthcoming election, I find
that , except as enumerated in paragraphs designated (a),
(b), and (c) below, such statements are protected by Sec-
tion 8 (c) of the Act and , therefore , do not amount to inter-
ference , restraint , or coercion . Cf. Universal Electric
Company, 156 NLRB 1101.
(a) Reynolds described and talked about a retirement
plan. I find that he told employees that this plan had been
under consideration for 3 or 4 years and that it would be
adopted , but that it could not be put into effect pending
the election about to be held. Respondent 's evidence in-
consistent with this finding is not credited. I further find
that such plan had been under consideration for 3 or 4
years, and that it was mentioned only once to all the em-
ployees (whether orally or in writing) prior to this, at a
1965 Christmas party of the employees , and that its an-
nouncement to the salesmen on the eve of the election
reasonably implied that employees would benefit from
the plan . This sudden concern for employees just before
the election "had an unmistakable meaning for them."
N.L.R.B. v Philamon Laboratories, Inc., 298 F.2d 176,
181 (C.A. 2). I also find that the timing of the statement
and its utterance in the context of an election render it an
offer or promise of benefit even though Reynolds made it
clear he could not put the plan into effect because of the
coming election . N.L.R.B . v. Philamon Laboratories,
Inc., 298 F.2d 176, 181 (C.A. 2); Wausau Steel Corpora-
tion v. N.L.R.B., 377 F.2d 369 (C.A. 7); Amerace Cor-
poration, 162 NLRB 338, 350.
It is difficult to comprehend why delay occurred in in-
forming the employees of this plan, especially since the
plan was considered before the advent of the Union, ex-
cept to infer- and I do so -that it was prompted by anti-
union motives and was intentionally timed to undermine
the Union at the election polls . I also find that the rela-
tionship between the announcement and the election is
more than mere temporal coincidence . United Screw &
Bolt Corporation, 91 NLRB 916, 919. Accordingly, I
find that the announcement of the retirement plan under
the circumstances interfered with, restrained, and
coerced employees in violation of Section 8(a)(1) of the
Act. See American Freightways Co., Inc., 124 NLRB
146; Scott's, Inc., 159 NLRB 1795.
(b) Reynolds mentioned that a lot of changes would be
made if the Union came in, including the possibility of
punching a timeclock and the denial to older employees
of the right to set their own working hours I do not credit
Respondent 's evidence inconsistent with this finding In
my opinion , this is a threat to impose stricter working
rules if the Union came in, and I so find. I further find this
a threat of reprisals prohibited by Section 8(a)(1) of the
Act. Scott's Inc., 159 NLRB 1795
(c) Reynolds mentioned and discussed a new pay plan,
which he praised as good for everybody, but which he
said could not be adopted until "the thing with the Union
was resolved ." Respondent's evidence somewhat varies
from the foregoing findings. To the extent that it does, I
do not credit it. I find that under the circumstances the
announcement of the new pay plan constitutes inter-
ference , restraint , and coercion , and violates Section
8(a)(1), for the reasons set forth above in finding the an-
nouncement of the retirement or pension plan to trans-
gress Section 8(a)(1). On this segment of the case
N.L.R.B. v. Philamon Laboratories, Inc., 298 F.2d 176,
181 (C.A. 2), points the way to the foregoing conclusion.
No different result is dictated because Reynolds had
discussed the pay plan several months before with a few
employees , and he told employee Osman that he intended
to change the pay plan then in effect but would wait until
the end of the year to "see how things were working."
This is because I find that no definite plan to revise the
wage system at a reasonably definite future date was
mentioned, and, further, only a few employees were in-
formed of the possibility that the wage plan might be im-
proved. Hence, the work force of salesmen as a whole
was unaware of the contemplated change until just before
the election . Therefore, Jewell Smokeless Coal Corpora-
tion, 163 N LRB 651, is distinguishable.
Nor is it a defense that Reynolds and Comptroller Bur-
kard had given the new pay plan serious thought several
months prior to December 20. This is because no
reasonable explanation was advanced at the hearing to
account for the long delay in withholding the announce-
ment of the possibility of a better pay plan It would have
been easy to inform employees of this possibility long be-
fore the election without promising anything definite or
committing Respondent to adopt a new pay plan. Waiting
until 2 days before the election and then suddenly dis-
playing concern for all the employees, in my opinion, war-
rants the inference - and I draw it-that mentioning a
new plan would tend to lead employees to alienate pro-
union sentiment.
Nor is there merit in the argument that the minimum
wage law of New York compelled Respondent to initiate
a new pay plan. This is because that law merely con-
strained Respondent to pay a minimum of $1.50 an hour,
which Respondent now pays. But the previous guarantee
of $75 a week by Respondent under its pay system is still
in effect and is not affected by the new wage law unless a
salesman works more than 50 hours a week.
Finally, I find it is no defense that Reynolds did not ex-
pressly promise to institute the new pay plan and said that
he could not initiate it until " the thing with the Union was
resolved." This is because the timing and context of the
announcement portray a sudden concern for employees
just before the election and such announcement
reasonably carries to them a message of a probable wage
improvement. Cf. N.L.R B v. Philamon Laboratories,
Inc., 298 F 2d 176, 181 (C.A. 2). N.L.R.B. v. Hobart
Brothers Company, 372 F.2d 203 (C.A 6), is distin-
guishable.
Accordingly, I find the announcement relating to the
new pay plan constitutes interference , restraint, and coer-
cion forbidden by Section 8(a)(1) of the Act. North A mer-
ican Aviation, Inc., 162 NLRB 1685, is distinguishable,
for their no antiunion motive prompted the announce-
ment of a wage increase, 5 days before the election.
Similarly, The Brearley Company, 163 NLRB 637, is
inapposited because in that case , unlike the instant case,
the employer had decided to grant the benefits there in-
volved before the union campaign and was not precluded
thereafter from granting those benefits until after an elec-
tion could be held. The same comment applies to Breaker
Confections, Inc., 163 NLRB 882
IV. REPORT ON OBJECTIONS
On October 25, 1966, the Union filed a petition for an
election to be chosen as the collective-bargaining agent of
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent' s salesmen (Case 3-RC-4039). Pursuant to
a Decision and Direction of Election, issued by the Re-
gional Director for Region 3 of the NLRB on November
23, and amended on December 13, an election was held
on December 22. The tally of ballots disclosed: 12 votes
against the Union, 8 votes for the Union, and 2 chal-
lenged ballots.
Having lost the election, the Union, on December 27,
filed objections to certain conduct affecting the results of
that election. On January 26, 1967, the Regional Director
ordered a hearing thereon. Only conduct occurring
between October 25 and December 22 has been con-
sidered by me in resolving issues raised by said objec-
tions ; i.e., the critical period is the time elapsing between
the filing of the petition and the holding of the election.
This is the crucial time during which conduct tends to
prevent a free election may afford a basis for setting aside
the election. The Ideal Electric and Manufacturing Com-
pany, 134 NLRB 1275. Such conduct has been described
above in connection with the unfair labor practices and
some of it has been found to contravene Section 8(a)(1) of
the Act.
It is my opinion, and I find, that those unfair labor prac-
tices found above which occurred between October 25
and December 22, reasonably tended to interfere with an
autonomous election. In this connection, I have disre-
garded the incident of late October or early November in
the Top Notch Diner in which Supervisor Fuller was
found to have made threats of reprisals. This is because
"late October" comprehends a few days prior to October
25, and I am unable to find on a -fair preponderance of the
evidence that this event occurred on or after October 25.
Accordingly, I find merit in those objections encom-
passed by findings above relating to unfair labor practices
committed between October 25 and December 22. For
example, I expressly find that the discharge of employee
Harry J. Stewart is not a valid objection as it took place
on October 13, thus preceding October 25. Since I find
that objections are well taken as to unfair labor practices
occurring between October 25 and December 22, I shall
recommend that the election held on October 25 be set
aside and that another election be held at a time when a
free vote on a bargaining representative may be had.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in certain
conduct prohibited by Section 8(a)(1) and (3) of the Act,
I shall recommend that the National Labor Relations
Board order it to cease and desist therefrom and that it
take specific affirmative action, as set forth below,
designed to effectuate the policies of the Act. Since the
discriminatory discharge of Harry J. Stewart goes "to the
very heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co.,
120 F.2d 532, 536 (C.A. 4)), 1 shall recommend that the
Order to be issued safeguard employees against infring-
ment by Respondent in any manner of the rights granted
to them by Section 7 of the Act. R & R Screen Engrav-
ing, Inc., 151 NLRB 1579, 1587.
As Respondent discriminated with respect to the
tenure of employment of Harry J. Stewart, I shall recom-
mend that it be ordered to offer him immediate and full
reinstatement to his former position or one substantially
equivalent thereto, without prejudice to his seniority and
other rights and privileges previously enjoyed by him, and
make him whole for any loss of earnings he may have suf-
fered by reason of the discrimination against him. In mak-
ing Stewart whole, Respondent shall pay to him a sum of
money equal to that which he normally would have
earned as wages from the date of discrimination to the
date of reinstatement or a proper offer of reinstatement,
as the case may be , less his net earnings during such
period. Such backpay shall be computed on a quarterly
basis in the manner set forth in F.W. Woolworth Com-
pany, 90 NLRB 289, and shall include the payment of in-
terest at the rate of 6 percent per annum calculated by the
formula set forth in Isis Plumbing & Heating Co., 138
NLRB 716. I shall also recommend that Respondent
preserve and make available to the Board or its agents,
upon reasonable request, all pertinent records and data
necessary to ascertain whatever backpay may be due.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Respondent is an employer as defined in Section
2(2), and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
3. By engaging in the conduct set forth in this para-
graph, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act: (a) coer-
cively interrogating employees concerning their and their
fellow employees' union membership, activities, and
desires; (b) creating the impression among its employees
that it was engaged in surveillance of their union activi-
ties; (c ) threatening to close its business , to impose less
favorable working conditions, and to take other reprisals
if its employees became or remained members of the
Union or gave any assistance or support to the Union; (d)
timing the announcement and promise of a retirement or
pension plan and a new wage plan just before an election
in an effort to persuade employees not to select the Union
as their collective-bargaining agent. (Jervis Corporation,
159 NLRB 262, 266; Amerace Corporation, 162 NLRB
338,349-351).
4. By discriminating in regard to the tenure of employ-
ment of Harry J. Stewart, thereby discouraging member-
ship in the Union, a labor organization, Respondent has
engaged in an unfair labor practice within the meaning of
Section 8(a)(3) and (1) of the Act.
5. Respondent has not committed any other unfair
labor practices as alleged in the consolidated amended
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case,
I recommend that the National Labor Relations Board
order Respondent, its officers, agents , successors, and
assigns, to:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any
other labor organization, by discharging employees or
REYNOLDS MOTORS, INC. 331
otherwise discriminating in any manner in respect to their
tenure of employment or any term or condition of em-
ployment.
(b) Coercively interrogating employees concerning
their and their fellow employees ' union membership, ac-
tivities , and desires.
(c) Threatening to close its business , to impose less
favorable working conditions , and to take other reprisals
if its employees became or remained members of the
Union or gave any support or assistance to the Union.
(d) Creating the impression among its employees that
it is engaging in surveillance of the union activities of its
employees.
(e) Announcing and promising a retirement or pension
plan and a new wage plan when such conduct is timed in
an effort to persuade employees not to select the Union,
or any other labor organization , as their collective-bar-
gaining representative.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaran-
teed to them by Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requir-
ing membership in a labor organization as authorized in
Section 8 (a)(3) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Harry J. Stewart immediate and full rein-
statement to his former position or one substantially
equivalent thereto, without prejudice to his seniority or
other rights and privileges previously enjoyed by him, and
make him whole for any loss of pay he may have suffered
by reason of the discrimination against him , with interest
thereon at the rate of 6 percent per annum.
(b) Notify Harry J. Stewart if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended , after discharge from the
Armed Forces.
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its place of business at 2525 Erie Bou-
levard , East , Syracuse , New York, copies of the attached
notice marked "Appendix ."7 Copies of said notice, to be
furnished by the Regional Director for Region 3 , after
being duly signed by Respondent 's authorized represent-
ative , shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered , defaced , or covered by
any other material.
(e) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.8
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
RECOMMENDED ORDER IN THE REPRESEN-
TATION CASE
Upon the basis of the applicable findings and conclu-
sions of law, and upon that part of the record pertinent to
the disposition of the objections in Case 3-RC-4039, I
recommend that those objections which I have found
meritorious be sustained, that the election held on
December 22, 1966, be set aside, and that the National
Labor Relations Board direct that another election be
held on the petition in Case 3-RC-4039.
7 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL Nor discourage membership in Interna-
tional Association of Retail Automobile Salesmen
and Servicemen (Independent), or any other labor
organization, by discharging any of our employees or
in any other manner discriminating against any of our
employees in regard to their tenure of employment or
any term or condition of employment.
WE WILL NOT coercively interrogate our em-
ployees concerning their and their fellow employees'
union memberships, activities, and desires.
WE WILL NOT threaten to close our business, or
impose less favorable working conditions, or take
other reprisals against our employees, if they become
or remain members of the above-named Union or
give it any support or assistance.
WE WILL NOT create the impression that we are
engaging in surveillance of the union activities of our
employees.
WE WILL NOT announce or promise a retirement
or pension plan, or a new wage plan, when such con-
duct is timed in an effort to persuade our employees
not to select the above-named Union, or any other
labor organization, as their collective-bargaining
representative.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the Na-
tional Labor Relations Act, as amended, except to
the extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as authorized in Section 8(a)(3) of said Act.
WE WILL offer Harry J. Stewart immediate and full
reinstatement to his former position or one substan-
tially equivalent thereto, and make him whole for any
loss of pay incurred by him as a result of his
discharge by us, with interest thereon at 6 percent
per annum.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-named International Association of Retail Au - States of his right to full reinstatement upon application
tomobile Salesmen and Servicemen ( Independent), or in accordance with the Selective Service Act and the
any other labor organization . Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
REYNOLDS MOTORS, INC. This notice must remain posted for 60 consecutive
(Employer) days from the date of posting and must not be altered,
defaced, or covered by any other material.
Dated By If employees have any question concerning this notice
(Representative ) (Title) or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 4th Floor, the
Note: We will notify the above-named employee , if 120 Building, 120 Delaware Avenue , Buffalo, New York
presently serving in the Armed Forces of the United 14202 , Telephone 842-31 12.