Sachs & Sons and Helen Sachs, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1962

135 N.L.R.B. 1199 (N.L.R.B. 1962)

SACHS & SONS AND HELEN SACHS, INC. 1199
Sachs & Sons and Helen Sachs, Inc. and Edward E. Thomas, Jr.
Case No. 21-CA-434. February 21, 1962
DECISION AND ORDER
On November 17, 1961, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondents had engaged in and are engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondents and the General Coun-
sel filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has, delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
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 Inter-
mediate Report, the exceptions,and the briefs, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner with the following modifications 2
we find merit in the General Counsel's exceptions to the Trial Examiner 's failure to
find that the following conduct constituted interference , restraint , and coercion within
the meaning of Section 8(a) (1) of the Act: (1) Service Manager Keith Swanson's
statements to employee Speer that if "you get too far along [ in the union ] you won't
make as much money," and that Swanson , knowing that a union meeting was being held
at another employee 's house, had driven around the house looking for Speer's car at the
time that Speer was attending a union meeting; ( 2) Body Shop Manager Martin DeSmet's
statements to employee Squires that by joining the union he was "doing the wrong thing"
warning "There would possibly be a reduction in [Squires' ] pay because [ he] most likely
would go on a salary basis " and, in the presence of a group of employees , telling employee
Flynn "not to think about the Union, the Union didn't have anything to offer . . . and
he didn't want any body shop [ personnel , of which Flynn was one] to Jolla the Union."
9 (a) The Trial Examiner found that the Respondents discharged Andrew Guillory be-
cause of his union membership we do not agree . Although Guillory handed Shop
Steward Appel a signed union membership application card,' there is no evidence in the
record that Respondents had knowledge of this fact. As to the other six discriminatees,
the Trial Examiner found that Respondents.had knowledge of the fact that (1) they
attended the January 28„ 1961 , meeting at employee Creed Tinker's house , and (2) they
thereafter openly wore their union buttons and pen clips while at work No such findings
or other evidence of employer knowledge exists with respect to Guillory. Accordingly,,
and contrary to the Trial Examiner, we do not find that Guillory was discriminatorily
discharged and we shall therefore exclude him from the provisions of our Order
Member Brown would affirm the Trial Examiner ' s finding that Respondents violated
Section , 8(a) (3) of the Act by discharging Guillory because of his union membership In
Member • Brown's view , Respondents ' knowledge can readily be inferred from ( 1) the small
size of its operation ( only approximately 30 employees) ; ( 2) its strong and vigorous
opposition and hostility to its employees ' unionization ; ( 3) the unconvincing and un-
supported reasons assigned for the discharge of Guillory, an apparently good worker„ and
the hiring of Stensel and Christain to do work which Guillory did or could have per-
formed ; and (4 ) the lack of merit in Respondents ' assertion that it intended to recall
Guillory but was unable to contact him, in light of General Service Manager Swender's
135 NLRB No. 111.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Sachs & Sons
and Helen Sachs, Inc., Downey, California, their officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating their employees concerning their membership or
other activities in behalf of International Association of Machinists;
AFL-CIO, or any other labor organization of their employees, in a
manner constituting a'violation of Section 8(a) (1) of the Act.
(b) Threatening their employees with discharge if the employees
joined or remained members of the Union; threatening their em-
ployees with loss of.pay if they remained members of the Union; and,
making statements designed to give their employees the impression
that Respondents are keeping their union activities under surveillance:
(c) Discouraging membership in the aforementioned Union by dis-
charging or refusing to reinstate any of their employees or by dis-'
criminating in any manner in regard to their hire or tenure of
employment or any term or condition of employment. i
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form, join, or assist the aforementioned Union or any other labor
organization of their employees, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from engaging in such activities, ex-
cept to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized by Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Creed Tinker, Samuel Ballinger, Harvey D. Campbell,
and Lewis Miller immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their,
rejection of Appel's offer to go to Guillory's home and tell him to return to work, which
rejection Swender accompanied with the statement to Appel that it was none of his
business.
(b) The Trial Examiner credited employee Lewis Miller's testimony that on March 15,,
1961, the day he was discharged, Respondents' general service manager, Robert Swender,
admitted that Miller had been "laid off permanently" from his service writer's job on
March 1, 1961. Between March 1 and 15, 1961, Miller worked as a dispatcher, a job pay-
ing considerably less than the service-writing job. Since the discrimination admittedly
took place on March 1, 1961, we hereby order that Lewis Miller be made whole for any
loss of pay he may have suffered while working as a dispatcher from March 1 through
March 14, 1961, as well as for loss of pay suffered thereafter.
SACHS & SONS AND HELEN SACHS, INC. 1201
seniority or other rights and privileges, and make them whole for any
loss of pay they may have suffered by reason of the discrimination
against them in the manner set forth in the section of the Intermedi-
ate Report entitled "The Remedy" as modified by footnote 2(b) of
this Decision and Order.
(b) Make David Miller whole for any loss of pay he may have
suffered by reason of the discrimination against him'for the period
February 15 to March 4, 1961, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(c) - Notify Mart M. Roberts, Jr., by registered letter addressed to
his last known address that Respondents will afford him an oppor-
tunity to apply for reinstatement within 90 days after his discharge
from the 'Armed Forces, without prejudice to his seniority or other
rights and privileges, and make him whole for ,any- loss of pay he
may have suffered because of the discrimination against him by pay-
ment to him of a sum of money equal to the amount he would nor-
mally have earned as wages between the date of his discharge, March
6, 1961, and the date when he entered the Arnied Forces, and between
a date 5 days after his timely application for reinstatement and the
date of the offer of reinstatement by Respondents, less his net earn-
ings during these periods. Net backpay accumulated between the
date of Roberts' discriminatory discharge and the date he entered
into the Arined Forces shall be paid imrriediately, without awaiting
a final determination of the full amount of the award.
(d) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records,- social
security payment records, timecards, personnel records and reports,
and all other records necessary to determine the amounts of backpay
due under the terms of this Order.
(e) Post at their establishments at Downey, California, copies of
the notice attached hereto marked "Appendix." 3 Copies of said
notice, to be furnished by the Regional Director for the Twenty-first
Region, shall, after being duly signed by Respondents' representa-
tives, be posted for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the receipt of this Decision and Order,
what steps Respondents have taken to comply herewith.
e In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
634449--62-vol . 13 S-7 7
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 NOT interrogate our employees concerning their mem-
bership and activities in behalf of International Association of
Machinists, AFL-CIO, in a manner violative of Section 8 (a) (1)
of the Act.
WE WILL NOT threaten our employees with loss of pay or dis-
charge if they join or remain members of the above-named Union
and we will not create the impression of surveillance of union
activities.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist International Asso-
ciation of Machinists, AFL-CIO, or any other labor organization
of our employees, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion or to refrain from any or all of such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the National Labor Relations
Act, as amended.
WE WILL offer to Creed Tinker, Samuel Ballinger, Harvey D.
Campbell, and Lewis Miller immediate and full reinstatement to
their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay suffered as a
result of the discrimination against them.
WE WILL make David Miller whole for any loss of pay he may
have suffered by reason of the discrimination against him.
WE WILL make Mart M. Roberts, Jr., whole for any loss of pay
he may have suffered by reason of the discrimination against him
and we shall notify him of his right to apply for reinstatement
within 90 days after his discharge from the. Armed Forces.
All our employees are free to become, remain, or refrain from becom-
ing or remaining , members of any labor organization.
SACHS & SONS AND HELEN SACHS, INC.,
Employer.
Dated---------------- By------------------=------------------
(Representative ) ( Title)
SACHS & SONS AND HELEN SACHS,'INC. 1203
This notice must remain posted for 60 days Troni 'the date' hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 S. Broadway, Los Angeles,
California, Telephone Number Richmond 9-4711, extension 1031, if
they have any question concerning this notice or compliance with its
provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed on March 24 and on May 16,
1961,1 respectively, by Edward E. Thomas, Jr., the General Counsel of the National
Labor Relations Board, herein respectively called the General Counsel2 and the
Board, through the Regional Director for the Twenty-first Region (Los Angeles,
California), issued a complaint, dated May 17, against Sachs & Sons and Helen
Sachs, Inc., referred to herein conjointly as Respondents, alleging that Respondents
have engaged in and are engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (a)(1) and ( 3) and Section 2(6) and (7) of the
National Labor Relations Act, as amended from time to time, 61 Stat. 136, herein
called the Act.
Copies of the charges and complaint, together with notice of hearing thereon, were
duly served upon Respondents and copies of the complaint and notice of hearing
were duly served upon Thomas.
Specifically, the complaint, as amended at the shearing, alleges that Respondents:
(1) on certain stated dates discharged six employees,3 and thereafter refused to re-
instate them, because each of them had joined or assisted International Association
of Machinists, AFL-CIO, herein called the Union, or had engaged in other pro-
tected concerted activities; (2) on February 15 laid off and on other occasions other-
wise discriminated against David Miller, and on February 22 laid off Campbell
because Miller and Campbell had joined or assisted the Union or had otherwise en-
gaged in protected concerted activities; and (3) since January 26, by means of certain
stated acts and conduct, interfered with, restrained, and coerced their respective em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
On May 29, Respondents duly filed a joint answer denying the commission of the
unfair labor practices alleged.
Pursuant to due notice, a hearing was held from July 12 through 20 at Los An-
geles, California, before the duly designated Trial Examiner. The General Counsel
and Respondents were represented by counsel. Full and complete opportunity was
afforded the parties to be heard, to examine and cross-examine witnesses, to intro-
duce relevant evidence, to argue orally at the conclusion of the taking of the evidence,
and to file briefs on or before August 25.4
Briefs have been received from the General Counsel and from Respondents'
counsel which have been carefully considered.
At the close of the taking of the evidence, Respondents' counsel moved to dismiss
the complaint for lack of proof. Decision thereon was reserved. 'The motion is
hereby disposed of in accordance with the findings, conclusions,, and recommen-
dations hereinafter set forth.
After the close of the hearing the General Counsel filed with the Trial Examiner
a written motion, together with proof of service of a copy thereof upon Respondents'
counsel and upon the Charging Party, to correct a certain inaccuracy appearing at
line 17 of page 362 of the stenographic transcript of the hearing. The motion is
hereby granted and the motion papers, consisting of a stipulation signed by the
General Counsel and Respondents' counsel agreeing to the proposed correction, the
motion, and an affidavit of service of said motion and stipulation, are received- in
evidence and marked "Trial Examiner's Exhibit No. 1."
1 Unless otherwise noted , all dates hereinafter mentioned refer to 1961.
2 This term specifically includes counsel for the General Counsel appearing at the
hearing
3 Namely , Andrew Guillory, Samuel Ballinger , Harvey D Campbell, Mart 1f Roberts,
Jr. (also referred to in the record as Milton Roberts, Jr ), Lewie Miller, and Creed Tinker
4 At request of Respondents ' counsel the time to file briefs was extended to September 8.
1204 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENTS' BUSINESS OPERATIONS
Respondents are California corporations engaged at Downey , California, in the
sale and service of new and used automobiles . During 1960, Respondents ' gross vol-
ume of sales was in excess of $500 ,000. During the same period , Respondents ' direct
out-of-State purchases of goods and materials aggregated in excess of $50,000.
On the basis of the foregoing facts, the Trial Examiner finds, in line with estab-
lished Board authority, that Respondents are engaged in, and during all times mate-
rial, were engaged in, commerce within the meaning of Section 2(6) and (7) of
the Act and that their respective operations meet the standards fixed by the Board
for the assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, AFL-CIO, is a labor organization admit-
ting to membership certain employees of Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory statement
In the light of the Trial Examiner's observation of the conduct and deportment at
the hearing of all the persons who testified herein, and after a very careful scrutiny
of the entire record, all of which has been carefully read and parts of which have
been reread and rechecked several times, and being mindful of the contentions of
the parties with respect to the credibility problems here involved, of the fact that in
many instances testimony was given regarding events which took place many months
prior to the opening of the hearing, and of the fact that very strong feelings have
been generated by the circumstances of this case, coupled with the fact that it would
unnecessarily protract this report to summarize all the testimony or to spell out fully
the confusion and inconsistencies therein, the following is a composite picture of all
the factual issues involved and the conclusions based thereon. The parties may be
assured that in reaching all resolutions, findings, and conclusions herein, the record
as a whole has been carefully reviewed; relevant cases have been studied; and each
of the contentions advanced has been duly weighed, even though not specifically
discussed.
B. Interference, restraint, and coercion
1. The pertinent facts
The record discloses that prior to January 18 or 19, 1961, there were no organi-
zational activities among the employees here involved. About that time, Myron
Appel, an employee of Sachs & Sons , spoke to two representatives of the Union re-
garding the advantages Respondents' employees might receive if they became mem-
bers of the Union. The representatives, after outlining the Union's policies,
objectives, and benefits, gave Appel certain "literature," and some "registration
blanks," which Appel later distributed to certain other employees.
During the following week, Appel and some other new-car department employees
discussed among themselves whether or not they should join the Union. It was
finally decided that they would call a meeting at the home of employee Creed Tinker
on Saturday afternoon, January 28.
On January 27, Appel handed to the employees of the body shop, new-car depart-
ment, and service department slips of paper containing Tinker's name, address, and
phone number, together with directions as to how to get to Tinker 's home.
On the morning of January 28, Appel, Ballinger, Tinker, Campbell, and some
other employees told Service Manager Keith Swanson 5 that they had asked the
5 Prior to February 1, Swanson had been service manager for Sachs & Sons for approxi-
mately 2 years and, as such, he concededly was a supervisor within the meaning of Sec-
tion 2(11) of the Act On that date, Robert Swender reported for work at Sachs & Sons
as general service manager and Swanson then became his assistant. Contrary to Re-
spondents' contention, the Trial Examiner finds that at all times after February 1,
Swanson has been a supervisor within the meaning of the Act. This conclusion finds
support in that since February 1, Swanson ( 1) has been second in command in the
service department and has had approximately 20 men under his supervision ; ( 2) assigned
SACHS & SONS AND HELEN SACHS, INC. 1205
Union to represent them as their bargaining representative and then requested Swan-
son to so inform "management." Appel then told Swanson that Rule Oldsmobile
Company, located in the nearby city of Compton , "had a similar plan" and that
Swanson should examine the effectiveness of said plan . Swanson replied , to quote
from Appel's credited testimony , "You fellows are sure making a mistake . . . You
know you 'll be sorry if you do this ." The employees then informed Swanson that they
were holding a meeting at Tinker's home at 2 o'clock that afternoon and, if he so
desired, he was welcome to attend.
That afternoon , January 28 , approximately 20 to 22 of the then approximately
30 Respondents ' employees attended the meeting at Tinker 's home. After Charles
E. Edwards , a union business representative , had finished making some remarks
and had answered the questions put to him by the assembled employees , member-
ship application blanks were distributed and all employees present signed individual
applications for membership 6 and paid the required initiation fee, except a few
who did not have the money with them . Edwards then swore the signers of the
application cards into the Union . Appel was then appointed shop steward and
Edward Thomas ,? Paul Olivarez , and Glenn Bantz were appointed committeemen.
When Glen Speer arrived home after attending the meeting referred to im-
mediately above, he was informed by his wife that Swanson had telephoned and
had requested that Speer return the call. Speer then telephoned Swanson and, ac-
cording to the former 's credited testimony , the following was said , among other
things:
He (Swanson) wanted to know if I had went to the meeting, and I asked him
what meeting, and he said, "You know, the little meeting at Tinker's house."
I said, "Yes, I went."
And he wanted to know if I signed any papers, and I said, "I don't know
whether I did or not. Maybe I did and maybe I didn't."
And he said, "Well, I hope you didn't, because if you get too far along you
won't make as much money," that I won't be doing mufflers or tailpipes, and
he just hoped that I hadn't signed any papers, and he said that he drove around
the house looking for my car but had not seen it.
On Monday morning, January 30, Edwards, accompanied by Appel and the three
committeemen, called upon Helen Sachs, president and principal stockholder of each
Respondent, and told her, in the presence of two Respondents' officials 8 and some
of the office staff, that the Union represented a majority of Respondents' employees
and that, at her convenience, he would like to sit down with her and negotiate a
collective-bargaining contract. After remarking, "I'm flabbergasted," Sachs turned
to Appel and the three committeemen and asked each of them, "Is this what you
want?" When each of them answered in the affirmative, Sachs said, "Well, if this is
what my boys want it's all right with me." Sachs then turned to Edwards and
said, "You know, Mr. Edwards, if my [first] husband were alive today, he would
throw you out bodily and lock the door and turn the key in the door." About this
time Lehrack broke into the conversation and suggested that an election be held
under the auspices of the Board, to which procedure Edwards said he had no ob-
jection. The meeting concluded shortly thereafter.
On February 1, Swender became general service manager and on or about that
date Appel distributed union penclips and union insignia buttons to the various em-
ployees of Respondents, the recipients of which openly wore the buttons and clips
while at work.
About a week following the union penclip and union insignia button distribution
employee Richard Squires handed his pen, with the union clip attached thereon, to
Swanson for the latter's signature to a "plus-sales" slip. Swanson threw Squires'
pen upon the desk, saying, "Don't ever hand me that again." A few days later,
Squires again handed his pen to Swanson for the latter's signature to another "plus-
sales" slip and again Swanson threw Squires' pen upon the desk and signed the slip
with his own pen.
employees from one job to another, (3) effectively recommended employees for promo-
tion; (4) awarded employees for doing good work: (5) directed the work of the employees
under his supervision ; and (6) adjusted grievances of the service department employees.
E Except those employees who held International Association of Machinists withdrawal
cards.
Also referred to in the record as Tommy Thomas.
8 Namely, Harold Bristol, Sach 's present husband and vice president of Helen Sachs,
Inc., and Lebrack , Respondents ' "oxtside" auditor and secretary -treasurer of Sachs & Sons
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- Prior to Squires' wearing the union clip and button, Body Shop Manager Martin
DeSmet, admittedly a supervisor within the meaning of Section 2(11) of the Act,
asked Squires why he was joining the Union. When Squires replied that he felt the
employees needed representation, DeSmet stated that he thought Squires was-doing
,the wrong thing, adding, to quote from Squires' credited testimony, "There would
possibly be a reduction in my pay, because I most likely would go on a salary
basis." 9
In or about the first or second week of February, DeSmet, Mart M. Roberts, Jr.,
Floyd Sweet, Barney Flynn, and several other employees were in Sachs & Sons' wash-
room and according to Roberts' credible testimony, the following took place: 10
Marty DeSmet said to Barney Flynn not to think about the union, the union
didn't have anything to offer him, and he didn't want any body shop (personnel,
of which Flynn was one) to join the union. And Marty DeSmet turned his
head towards my direction, and I assumed he was talking to me when he made
the statement, he said, "There was someone that has joined the union and has
not received anything from it."
Roberts credibly testified further that a couple days before his discharge 11 DeSmet
asked him why he had joined the Union; that when Roberts replied the men wanted
the Union, DeSniet said, "Can't you think for yourself?"; and that when he replied,
"Yes, I can. . . . But the men have been here much longer than I, and they should
know more in what they want than myself." DeSmet responded, "Well, do you
realize this is going to create hard feelings?"
In or about the first week of February DeSmet went to Robert Powell's work area
and asked Powell, a tuneup mechanic, how he was doing, and when the latter
replied, "Not too good," DeSmet stated, to quote from Powell's credited testimony,
"You get a withdrawal card from the union, and tell Bob (Swender) or Keith
(Swanson), why, things will go a lot better with you," adding, "Look at (James G.)
Davis 12 over there, he is doing pretty good."
About a week after the conversation referred to immediately above, DeSmet
asked Powell what he decided. When Powell replied, to again quote from his
credited testimony, "Well, I joined the union and I am just going to stick it out,"
DeSmet laughingly remarked, "Well, that's tough" and walked away
About the latter part of February, DeSmet called employee Raymond Peoples into
his office and during the conversation which ensued therein, DeSmet said, to quote
from Peoples' credited testimony, "He said that he heard that I wasn't going union.
He said in case I was going union that Mrs Sachs was going to fire all of us that was
going union " 13
On February 10, Swender called employee Harvey Campbell 14 into his office, and
there Sacbs, in the presence of Swender, Bristol, Swanson, Appel, and Thomas, read
a letter she had received from Respondents' insurance carrier in about July 1960,
purportingly asking for Campbell's termination due to an automobile accident
Campbell had in 1958, for which the insurance carrier had to pay about $3,800
9 At the time of this conversation, Squires was on a 50-50 cost basis with a certain
monthly monetary guarantee
1o DeSmet, while not specifically denying the statements attributed to him by Squires,
Roberts, and the other witnesses who attributed certain antiunion statements to him, testi-
fied that he had no discussions with any service shop or body shop employee regarding
unionism He further testified, "On occasion fellows came back to talk, and they men-
tioned something (presumably about unions) and I said, I have nothing to say about it
I was instructed (by Sachs) that any union activity discussion should not he discussed "
The Trial Examiner does not credit DeSmet's testimony in this respect for the main reason
that DeSmet Impressed the Trial Examiner as being a witness who was studiously attempt-
ing to conform his testimony to what he considered to be the best interests of Respondents
11 Roberts' March R discharge is discussed below
12 Another tuneup mechanic and who is also referred to in the record as "Gus Davis."
Davis attempted to withdraw from the Union and also advised some of his coworkers, "If
they told either Mrs Sachs or Mr Swender that they had withdrawn from the union
that things would get better for them "
1s About mid-February, Peoples told Helen Sachs, Inc 's vice president, Harold Bristol,
that he and the other colored fellows who were then working for Respondents were "not
for the union " Peoples, however, had attended the January 28 meeting at Tinker's
home and had signed a union membership application card, but paid no initiation fees
nor dues.
14 At that time Campbell was a Sachs & Sons new-car thousand-mile get-ready mechanic
and had joined the Union and paid his initiation fee at the January 28 meeting at Tinker's
home Campbell's discharge is discussed below
SACHS & SONS AND HELEN SACHS, INC. 1207
Sachs then stated that she had received another letter from the insurance carrier that
day, February 10, again requesting Campbell's termination. After. Bristol asked
for Campbell's immediate termination, the latter inquired what he could do in order
to keep his job. Sachs replied that Campbell could hire someone to drive the cars
for him but that he would have to pay that person out of his own pocket. Campbell
then inquired whether he could supply his own insurance and Sachs replied that might
be arranged.
On or about February 14, Sachs and Swender went to Campbell's work area and,
according to Campbell's undenied and credited testimony, the following ensued:
. Helen Sachs wanted to know what this was about me being terminated. She
said she was not going to terminate me, that I just had a problem, and she
said, "If it wasn't for that," and she pointed to the union button that I wore on
my shop coat, "I could help you . . . You have chosen Charles Edwards 15 to
represent you, and it is a problem for you and him to work out, . I could
tell you how much insurance it would take to get coverage for yourself, but I am
not going to at this time, because the way things are misconstrued through this
shop I couldn't dare tell you." . . . She said that for me to pick an insurance
agent 16 of my own choice and have him call her, and she could [sic] tell him
the limits of liability to protect me.
In the latter part of February or early in March, at a meeting of all the shop
employees of Sachs & Sons, 'Sachs, according to the credited testimony of Campbell,
made, among others, the following remarks:
. She was owner and manager of Sachs & Sons and that we should come to
her with problems that we had, and she related a meeting that she had with the
salesmen. She told us of what she told them, such as a guaranteed vacation of
about $125 a week, and different rotation plans for the salesmen, so they would
have more time away from work, and also where they would have time at work
to gain more money, and she stated other things that she told them . . . later
in the meeting she told us the reasoning [sic] for laying off of a used car
mechanic,17 stating that it would be more expensive to give the work to the men
in the line of the shop rather than to give the money to just one man, to give it
to each one of the men so they could have more money to take home ... She
said as a policy of the shop, after salesmen received benefits, it was usually
passed on down to the service department, but at this time due to the circum-
stances in the shop she was unable to do it.
About an hour or so after Roberts was discharged (March 6), he and his mother,
Mrs. Gertrude Ewing, returned to Respondents' establishment. Roberts' mother
asked Sachs for the details leading up to his discharge. Sachs replied that customers
had telephoned saying that they had paid the delivery and pickup boy (Roberts),
and that Roberts could not give an adequate explanation as to what happened to the
money he had received from said customers. During the course of the conversation,
Ewing asked Sachs whether the Union played any part in Respondents' determination
to terminate Roberts, to which inquiry Sachs replied in the negative. When Ewing
stated that her son liked Sachs, liked to work for her organization, and had intended
"working himself up in your company," Sachs turned to Roberts saying, "Mart, if
you like me as well as your mother said and like to work here that well, why did you
join the union? . . . You know the union can't do a thing for you. . . . The shop
will be run by strangers. I will have no say-so whatsoever about who was hired and
who. was fired. . . You know you won't have job security, for the simple reason
that the union can fire you, too."
On March 14 or 15, Lewis Miller's employment with Sachs & Sons was terminated.
Several hours after his termination, Miller returned to the shop and inquired of
Sachs why he had been selected for demotion from his service-writing job to that of a
dispatcher at a substantially reduced compensation instead of the other service writer,
Norman Heater. Sachs, according to Miller's undenied and credited testimony,
... explained to me that because the boys were being represented by the union
as of now she could no longer actually run the shop the way she would like
to . .. .
1c The Union' s business representative.
Id Sachs suggested that Campbell obtain his own Insurance agent and arrange for the
necessary coverage despite the fact that Sachs & Sons, during all time material, was
licensed to sell Insurance and Frederick Hymans was in its employ as its insurance
manager.
is Samuel Ballinger , one of the complainants herein.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 2 weeks after Tinker's March 21 discharge, Floyd Sweet, who then had been
in the employ of Sachs & Sons from May 1960 and who had been an automobile
mechanic for approximately 15 years, asked Sachs, in the presence of Thomas, Squires,
Speer, and some other shop employees, why he had not been offered the tuneup job
vacated by Tinker, since he was informed by Swanson, when Swanson hired him, that
it was Respondents' policy to advance employees under such circumstances. Sachs
replied, to quote from Sweet 's undenied and credited testimony,
because of the union-on my union card it had me as a line mechanic, and
that didn't include tuneup-if she put me over there, it would show favoritism,
and she would probably hire someone from the outside ...ls
About mid-February, Sweet asked Donald Burrows, general parts manager for
Sachs & Sons and concededly a supervisor within the meaning of Section 2(11) of
the Act, for permission to go into the parts department to get a part. Burrows re-
plied that he, himself, would go into the parts department and get the requested
part. When Burrows returned, he told Sweet, to quote from the latter's credited
testimony, "If I wouldn't [sic] have been wearing a [Union] button he maybe
could [sic] have let me in to look for it myself." 19
Although shoe salesmen, insurance salesmen, tool salesmen, and candy salesmen
were permitted by Respondents to come upon their premises and solicit business
from Respondents' employees at the employees' respective work areas during work-
ing hours,20 Swender, on several occasions, in the presence of Respondents' em-
ployees, requested known union representatives to leave the premises. For example:
(1) during the week of February 6, Swender told Edwards, who was in the service
department delivering some insurance policies to the employees, that he did not
want Edwards on Respondents' property and that he had received orders from "top
management" not to allow Edwards on Respondents' premises. When Edwards went
to Respondents' establishment on February 22 to serve some Board subpenas,
Swender again requested Edwards to leave; (2) on April 5, Swender ordered Shop
Steward Appel, who was then on leave of absence due to an injury, off Respond-
ents' premises with the admonition, "I don't want to see you around here again";
(3) on May 11, Appel, who had acted earlier that morning as a union observer at
the Board-conducted election, was seen by Swender in the service department dur-
ing the employees' luncheon period talking to some of the employees, and was
ordered off the premises by Swender; (4) on May 11, Swender ordered Roberts,
who had been discharged by Respondents on March 6, and who had returned to
Respondents' establishment that day to vote in the Board-conducted election, and
Thomas, the Charging Party herein and who interrupted his vacation to vote in the
aforesaid election, off the premises as soon as they had cast their votes.
In the forepart of March, Bristol, during a conversation with Thomas and Squires
at a cafe near Respondents' establishment, asked them why they thought they
needed a union and that when they told him "for security and representation
reasons," Bristol, to quote from Squires' undenied and credited testimony, "asked
why couldn't we form an association among ourselves and we could contribute dues
and at the end of the year have a beer bust or a fishing party or something like
that."
2. Concluding findings
The right of employees under Section 7 of the Act "to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choos-
ing, and . to refrain from any or all of such activities" is effectively imple-
mented by Section 8(a)(1). This latter provision forbids an employer to "interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Sec-
Is In fact , a new employee was hired to fill Tinker's job
19 While not specifically denying the above-quoted remarks attributed to him by Sweet,
Burrows testified that he knew Sweet but that he had no conversation with Sweet in
February regarding Sweet's "unionism." However, when asked by Respondents' counsel
whether he ever told Sweet, "If he wasn't wearing a union button he could come Into
the parts department," Burrows replied , "There would be no reason to tell him such a
thing." It is significant to note that prior to Sweet's wearing a union button, Burrows
always granted Sweet's requests to go into the parts department to obtain needed parts.
The Trial Examiner finds Sweet's version of the above-related conversation to be sub-
stantially in accord with the facts.
20 Relatives , friends of the employees, and other nonemployees and noneustomers were
also allowed upon Respondents ' premises and to carry on conversations with the em-
ployees during working hours and at the employees ' respective work areas.
SACHS & SONS AND HELEN SACHS, INC. 1209
tion 7." The employer's economic hold over his employees, which inheres in their
relationship, is thereby neutralized by the provisions of said sections in matters of
organization and representation, which are peculiarly the concern of the employees.
Interdiction against employer intrusion in such matters is essential if employees are
to be free from the coercive influence of their employer, for employees are, as the
courts have repeatedly and uniformly found, not insensitive to the advantages in
their employment that they consider are likely to flow from their employer, nor
to the disadvantages which may attend their choice of representatives opposed by
their employer. And for the same reason, employees cannot be expected to derive
the full benefits from their protected right of self-organization and the selection of
a representative of their own choosing if they believe, from circumstances which
their employer created or for which he was fairly responsible, that their representa-
tive, however chosen, is subject to the employer's approval or disapproval.
In open disregard of their duty of neutrality, Respondents, shortly after being
informed of their employees' organizational activities and that a majority of them
had selected the Union to be their collective-bargaining representative, embarked
upon a campaign to wean the employees away from their chosen representative.
The credited testimony, as epitomized above, a good deal of which is undenied,
coupled with the fact, as found below, that Respondents: (1) discharged and/or
laid off seven employees because of their union activities and adherence; (2) queried
the employees about their activities and sympathies for the Union; and (3) other-
wise engaged in other activities and conduct violative of the Act, such as: (a) DeSmet
telling Powell that if Powell would withdraw from the Union "things will be a lot
better for you," as was in the case of Davis; (b) DeSmet's remark to Peoples that
Sachs was going to fire all known union members; (c) Sachs' remark to Campbell
to the effect that if he were not a union member she would assist him in obtaining
automobile insurance coverage; (d) Sachs announcing to the shop employees of the
new economic and other benefits which Respondents had just put into effect for
their salesmen and, at the same time and without prior consultation with the Union,
telling said shop employees that Respondents discharged a used-car mechanic in
order to give the work said mechanic did to the shopmen on the line so that they
could earn more money, even though this new arrangement was more costly to
Respondents; (e) Sachs, in effect, asking Roberts why did he join if he liked her as
much as Roberts' mother said he did; (f) Sachs telling Roberts that if the Union
organized Respondents' employees it could fire Roberts; (g) Sachs, in effect, telling
Miller that he was demoted because he was a union member; (h) Burrows' refusal
to allow Sweet to enter the parts department because he was wearing a union
button; (i) Swender ordering Edwards, Appel, Roberts, and Thomas off Respond-
ents' premises because of their union membership; and (j) Bristol's suggesting to
Thomas and Squires to foresake the Union and form an employee association. By
such conduct and activities, in the setting, the conditions, the methods, the incidents,
as disclosed by the record as a whole, Respondents invaded an area guaranteed to
be exclusively the concern of employees, for inherent in the very nature of an
employee's statutory right to organize is the accompanying right to its enjoyment,
free from employer intermeddling or intrusion. The Trial Examiner find that by
above-described conduct and activities Respondents have interfered with, restrained,
and coerced their respective employees in the exercise of the rights guaranteed in
Section 7 of the Act, thereby violating Section 8(a) (1) thereof.
C. The discriminatory discharges
Creed Tinker, a tuneup mechanic with approximately 25 years' experience as an
automobile mechanic, was continuously employed by Sachs & Sons from August
1957 until his discharge on March 21, 1961.
The reason assigned by Swender for discharging Tinker was Tinker's "excessive
comebacks." In support of this reason, Respondents submitted evidence with re-
spect to only four such "comebacks," one of which they had no knowledge of until
at least 6 days after Tinker's discharge. Of the other three, one was a 1959 Ford
Thunderbird upon which Tinker adjusted the carburetor and did a major tuneup,
according to the work order, February 6, and the customer, R. J. Newcomb, was
charged $36.53 for labor, parts, and sales tax on the supplied parts. On March 7, ac-
cording to the work order, Newcomb's car was returned to the shop because it "Idles
rough." The car on that day was assigned to James (Gus) Davis with instructions to
"check" the carburetor. Davis, after checking and adjusting the float level of the
carburetor and the automatic choke, ran the car on the dynamometer 21 to be sure that
21 A machine used to test carburetors
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the carburetor was working properly. For Davis ' time and work the customer was
charged $ 1.50 and Sachs & Sons charged itself $6.22
Regarding Lloyd Sharpless ' 1960 two -door Mercury which, according to the work
order, was brought into the service department on October 28, 1960, for "minor tune
engine," "service and adjust trans ( special )," and for some other repair jobs not
here pertinent . On that occasion , Tinker did the "minor tune engine" for which
the customer was charged $ 14.50 plus whatever parts were installed and the sales
taxes. The "service and adjust trans ( special )" job was done by Appel and Edward
Betton -Court , and the customer was charged $9.50 for labor plus the cost of parts,
and sales tax.
On November 14, Sharpless ' car was returned to Respondents and certain work
was done thereon by others than Tinker and on jobs which Tinker would not nor-
mally have performed.
On December 12, Sharpless ' car was again brought to the shop for "scope engine-
misses, idles rough ," to repair lighter, and to fix left-hand door because it would
not close 23 Tinker was assigned these jobs 24 but the customer was not charged any
labor costs . Respondents paid Tinker $ 2.25 for the time spent by him on these jobs.
On February 14, 1961, the Sharpless car was again brought to the shop. This
time the work order called for the installation of an idler arm and bushings and for
a timing checkup to be followed by adjustment of the carburetor . The record does
not show who performed this work for which Sharpless was not charged any labor
costs.
On March 3, the Sharpless car was again brought to the shop . This time the
notations on the work order called for "Repair engine to run and start-cold. O'Haul
carb ., if necessary ." 25 Tinker did this work and Sharpless was charged $ 12 labor
costs plus parts and sales tax.26
The fourth comeback upon which Respondents heavily rely in support of the
reason for Tinker's discharge was a four -door 1959 Lincoln owned or operated by
C. M. Barnes , a vice president of Firestone Tire & Rubber Company.27
The Barnes car was brought to Respondents , according to the work order, on
February 1 for various repair work, including carburetor overhauling.
The car was assigned to various employees , including Tinker, to perform the
called-for repair jobs28
Sometime after February 1, Wilbur Pearce, Firestone 's public relations manager,
called upon Sachs ,29 and complained to her about the amount charged Barnes for
the February 1 repair jobs.30
Regarding her interview with Pearce and the pertinent incidents involving the
Barnes car, Sachs testified , and the Trial Examiner finds, as follows:
From the beginning of his conversation, he informed me that when he finished
the interview with me, he was going to the Ford Motor Company and complain
about this repair bill . I called Mr. Robert Swender . . . on the premises
[there happened to be] a Ford Motor Company technician by the name of
22 Presumably Davis received a portion of this $6 charge
23 On the two previous occasions , referred to above , the work orders called for these
repairs The work thereon was done by employees other than Tinker The record is
devoid of any evidence that said employees were , or either of them was , discharged, or
otherwise disciplined , for performing faulty work
2h There is a notation on the December 12, 1960 , Sharpless work order , "replace plug
wires " Presumably , Tinker did this wort: because no other mechanic was assigned to
this work
28There are other notations on the Match 3 work order , but they are illegible and
the stenographic transcript of the hearing does not refer to these illegible notations
2° It is significant to note that the October 26 Sharpless work order shows the speed-
ometer reading to be 20,028 miles and the Match 3 work order shows the speedometer
reading to be 24 , 251 miles
2x Sachs testified that the car in question was Barnes ' personal car Swender testified
it "belonged to Firestone Tire & Rubber Company " Since the ownership of the car is
not essential to the issues of this proceeding , no finding with respect thereto is made
2e Swender testified that "Tinker had given the car a major tuneup " The work order,
however, only called for "Tune [ enginel minor " It is safe to assume , which the Trial
Examiner does, that Tinker only did a minor tuneup job
20 The record does not specify the date when Pearce ( also referred to in the record as
Pierce ) called upon ,Sachs. Incidentally , Pearce signed the Barnes February 1 work order
80 Barnes or Firestone was charged $14 50 for labor for the work performed on Febru-
ary 1 by Tinker.
SACHS & SONS AND HELEN SACHS, INC. 1211
Lou Hargis. I asked him if he would please sit in this meeting, which he
did . We have done all of the service on this vehicle since we sold it to
him. After February 1st, Mr. Barnes . broke down on his way to an
important meeting in Pasadena 3i . and the car [stalled] and had to be
towed into a service station , and the bill was charged on that 32
In view of the inadequacy of Respondents' explanation for Tinker's discharge,
coupled with Respondents' unconcealed union hostility, a finding is clearly war-
ranted that Tinker was terminated because of his union activities and sympathies
and because he had engaged in protected concerted activities with his fellow workers,
all of which activities were known to Respondents prior to ,Tinker's discharge on
March 2133 In N.L.R.B. v. May Department Stores Company, 154 F. 2d 533
(C.A. 8),,the court said at page 538, regarding a situation similar to the one here
presented, that there is a "broad scope of interference open . on questions of
motive and discrimination, where the evidence indicates a desire to thwart or nullify
unionizing efforts, either generally or as to a particular employee-organization."
And where, as here, an employer has shown strong opposition to his employees'
unionization "a very convincing case of discharge for cause would have to be made
to make unreasonable a conclusion that [the] discharge was because of union
affiliation." 34
Furthermore, the unsupported grounds assigned by Respondents for terminating
Tinker, and for all the other discriminatees here involved, are further persuasive
indications that antiunion reasons, rather than the reasons advanced by Respondents,
accounted for the action taken against Tinker. - None of the owners of the so-called
comeback cars testified. With respect to the Barnes or Firestone car, all that the
record discloses is some oral testimony by Sachs and Swender as to what they had
learned from Pearce regarding the car stalling and it having to be towed to a service
station.35 Regarding the Sharpless car, it is significant to note that when the car
was brought into Respondents' service shop on November 14, 1960, no work on
the engine or on the carburetor was done by Tinker. The work done at that time
was rework of some faulty repair work performed on October 28, 1960, by em-
ployees other than Tinker. It is therefore safe to assume, which the Trial Examiner
does, that the work Tinker performed on October 28, 1960, was satisfactory up to
and including November 14, 1960.
As far as the Newcomb car is concerned, which was returned to Respondents a
month and 1 day after the original work had been performed by Tinker and after
the car had been driven over 1,000 miles, it was assigned to James (Gus) Davis,
who checked the car on the dynamometer, road-tested it, removed and replaced the
carburetor, and "freed up" the automatic choke.
Davis, a Respondents' witness and a person admittedly hostile to the Union,36
testified that he, himself, although an automobile and aircraft mechanic for ap-
proximately 30 years, had had "comebacks" and that the adjustments he performed
on the Newcomb car might not have been due to any faulty or unsatisfactory work
on Tinker's part.
The Trial Examiner is convinced, and finds, that Tinker's comebacks became
"excessive" in his employers' eyes when he joined and became active in the Union
which his employers opposed, and that the reason advanced by Respondents for the
discharge was merely a pretext.
The foregoing conclusion is reached with full recognition that the reason which
Respondents assigned would have justified Tinker's discharge provided, of course,
a The record does not disclose the date of this incident.
32Respondents made "an adjustment" of the aforementioned February 1 bill The
Barnes car, on some undisclosed date, again was brought into Respondents' service shop
"for repair on a motor tuneup "
33 Of course , disbelief of the reasons advanced by Respondents does not it-elf make out
a violation In this type of case, the burden is on the General Counsel to establish*
(1) discrimination in fact, (2) knowledge by Respondents of Tinker's union membership
or activities prior to his discharge , and (3 ) illegal motivation, not upon Respondents to
disprove them But here, the General Counsel has more than amply met that burden
34 Dannen Grain and Milling Company Y-. N L R B , 130 F 2d 321, 328 (C A. 8)
15 Neither Pearce nor anyone from the service station to winch Barnes had the car
towed was called as a witness, nor was any explanation given as to why they were not
called. In addition, the record does not disclose whether Swender sat in on the above-
mentioned Sachs-Pearce conversation, nor whether Pearce was with Barnes at the time
of the so-called stalling incident.
°Davis testified, and the Trial Examinei finds, that he not only attempted to with-
diaw from the union but also adiised others to do likewise
0
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the assigned reason was the real reason for Respondents' action. But a dis-
charge ostensibly for cause, in order to be protected, must be in reality a discharge
for cause. A trumped-up or synthetic cause cannot protect an employer against a
discharge where, as here, the real or moving cause is antiunion discrimination.
N.L.R.B. v. C. & J. Camp, Inc., 216 F. 2d 113 (C.A. 5), enfg. 107 NLRB 226.37
The Trial Examiner is not unmindful of the fact, as the Fifth Circuit pointed out
in N.L.R.B. v. McGahey, et al., 233 F. 2d 406, 413, "Management can discharge
for good cause, or bad cause, or no cause at all," provided that the discharge was
not motivated by any purpose proscribed by the Act. But, the court, however, also
pointed out that where the evidence reveals, as it does here, that the real and domi-
nant purpose for the discharge was discriminatory, then a finding of a violation of
Section 8(a)(3) of the Act is clearly warranted.
David Miller was hired by Swanson as a new-car get-ready mechanic on Oc-
tober 1, 1960, and remained on that job, under the direct supervision of Al Waurten-
berger,38 until his layoff on February 15.
Miller attended the January 28 meeting at Tinker's home, joined the Union there,
and commencing sometime during the following week openly wore his union button
while at work 39
On the afternoon of February 15, Swender told Miller that he wanted to speak to
him a little later in one of the new-car sales offices. When Miller asked if he might
bring Glenn Bantz, Miller's union committeeman, to the meeting, Swender replied
in the affirmative. When Miller and Bantz reached the office, Swender stated that
he was going to lay off Miller because of lack of work in Miller's department.
The record clearly reveals the reason given by Swender for Miller's layoff was
pretexuous and that the layoff was but another phase of Respondents' unlawful con-
duct. This conclusion finds support in the following: (1) At the time of the layoff
there were approximately 37 unserviced 40 new cars; (2) shortly after Swender an-
nounced the layoff there were being unloaded from a truck at Respondents' estab-
lishment about 5 new cars; (3) during the 4 days immediately following the layoff,
Respondents received 22 new cars; and during the 2 weeks following, a total of 35
new cars were received by Respondents; (4) normally, only 10 to 15 new cars are
awaiting service, but at the end of February there were about 40; (5) because of
the large number of new cars on hand to be serviced, Bartz, the other new-car get-
ready mechanic, was told, about March 1, by Waurtenberger that he (Waurten-
berger) had been criticized by his superiors for not getting the new cars serviced
faster; (6) during February and March new cars were being sold by Respondents
faster than the cars could be serviced and because of this situation New-Car Sales
Manager Ray Fladeboe told Bantz, to quote from Bantz' credited testimony, "If a
car wasn't serviced, it was no good to him. It had to be serviced so when he had a
sale, he could get rid of it right away. Otherwise, he would probably lose the sale
because the car wasn't ready to go"; (7) sometime in March, Respondents hired 2
new employees to help Bantz; 41 and (8) Swender recalled Miller to work on March 4
but placed him in the thousand-mile inspection department instead of on his old job 42
37 In accord: Wells, Incorporated v N.L R B , 162 F. 2d 457 (C A 9) ; NLRB. v
Whiten Machine Works, 204 F 2d 883 (C A. 1) ; N L R B v Jamestown Sterlinq Corp ,
211 F. 2d 725 (CA 2)
5 The record clearly establishes that Waurtenberger, during all times material, was a
supervisor within the meaning of Section 2(11) of the Act
89 Miller voluntarily quit Respondents' employ on May 11. The fact that Respondents
knew that Miller was a union adherent is the fact that in the forepart of March, DeSmet
asked Miller why he was not wearing his union button any longer When Miller replied
that he did not want any harassment or any trouble but only wanted to do his job,
DeSmet replied, "Well, you know you are not going to win the [Board-conducted] elec-
tion ." When Miller asked, "Well, how do you figure" DeSmet said, "It's simple
mathematics "
40 Unserviced cars mean those delivered to Respondents from the factory and which
have not been made ready for delivery to the customers Before a car is delivered to a
customer everything is carefully checked from bumper to bumper to be sure that the car
is in perfect running condition
•i There is no contention that Miller did not perform his new-car get-ready job to
Respondents ' satisfaction.
*= In regard to the discharge of Lewis Miller, discussed below, Respondents contended
he had been selected for termination because he had less department seniority than the
person retained If Respondents actually had such a seniority policy, then when David
Miller was recalled and placed in a department other than the one he worked in before
SACHS & SONS AND HELEN SACHS, INC. 1213
Samuel Ballinger was continuously employed by Helen Sachs , Inc., as a used-car
mechanic at a monthly salary of $425 from the early part of July 1960 until his dis-
charge on the following February 15.
Ballinger attended the January 28 meeting at Tinker's home, joined the Union
there, and commencing about the forepart of February, openly wore his union
button while at work.43
About 5 p.m. on February 15, Swender, according to Ballinger 's credited testi-
mony, said to him, "I am going to have to let you go because we are going to put all
the work through the line . . We can do it cheaper that way."
Prior to Ballinger's discharge it was the customary practice of Helen Sachs, Inc.,
to have one used-car mechanic to perform work on the used cars which were being
reconditioned for resale.
The Trial Examiner is convinced , and finds, that Swender's statement to Ballinger
that the latter was being terminated for economic reasons was not the real nor mov-
ing cause for terminating Ballinger, but was only an excuse used by him to rid
Respondents ' establishment of another known union adherent. This finding is based
upon the following: (1) Sachs, at a meeting of the service, body, and parts de-
partment employees held during the last week in February, stated, among other
things, "The used car mechanic 44 had been laid off and that it would cost her more
money to run the used cars through the service department than it would be to
keep the . used car mechanic on but that [Sachs] wanted to see that all [Re-
spondents'] boys were taken care of"; (2) on or about the day Ballinger was dis-
charged, Swender told Appel and Thomas that he was going to lay off Ballinger
"because business was slow on the used car lot"; (3) Ballinger's monthly salary
was $425 for a 44-hour workweek (approximately $2.50 an hour) while the line
mechanics receive $5 per hour for mere minor tuneups, (4) about 2 weeks before
Ballinger was discharged, Used-Car Sales Manager Tom Beaty told Ballinger that
he had, to quote from Ballinger's undenied and credited testimony, "told Helen
Sachs that you were the best man we ever had on this job"; (5) shortly before
Ballinger's discharge he was queried by Seymour about the Union and he, in effect,
informed Seymour that he intended to be loyal to the Union; and (6) the shifting
and unsupported grounds assigned for Ballinger's termination are further persuasive
indications that antiunion reasons, rather than those advanced by Respondents, were
the reasons for the action taken against Ballinger 45
Mart M. Roberts, Jr., was continuously employed as' Respondents' pickup and
delivery boy from September 1960, until his discharge on March 6.
Roberts attended the January 28 meeting at Tinker's home, joined the Union
there, and commencing on January 31, openly wore his union button while at
work.46
The complaint, as amended , alleged that Roberts, like all of the seven com-
plainants herein, was discharged or laid off because he, like each of them, had en-
gaged in protected union activities. Respondents contended, with respect to Roberts,
that he was discharged, and thereafter refused reinstatement, because of complaints
made by customers that they were being billed for payments made to Roberts upon
delivery of their cars.
In support of their contention, Respondents rely on four such customer com-
plaints.47 Swender testified, and the Trial Examiner finds, that Respondents knew
his layoff, he was discriminated against because he lost all accumulated seniority as a
new-eair get-ready mechanic when he was assigned to anithei department..
'That Respondents had knowledge of Ballinger's union affiliation is manifested by
the fact that prior to his discharge, Assistant Used-Car Sales Manager Hank Seymour
asked Ballinger, "How, you makin' out with the unions" and Ballinger replied, "Well,
I am in the union and I'm going to go along with them "
44 Ballinger.
4E The courts have frequently recognized that shifting explanations by an employer for
the discharge of an employee may warrant an inference that the true reason was the
employer's hostility to the Union See, for example, N L R B v. International Furniture
Company, 199 F. 2d 648 (CA. 5) ; N.L R B v Crystal Spring Finishing Company, 11(;
F 2d 669 ('C A 1) ; N L R B v Yale ci Towne Manufacturing Company, 114 F. 2d 376
(CA. 2) ; N.I,R.B. v Condenser Corporation of America, 128 F. 2d 67 (C.A. 3) ;
N.L R B. v. Eclipse Moulded Products Company, 126 F. 2d 576 (CA 7) And this is SO
even where the employer had "plausible grounds" for the discharge United Biscuit
Company of America v. N L.R B., 128 F. 2d 771 (C A 7)
46 Roberts did not pay the initiation fee at this meeting but, nonetheless, was sworn
into the Union.
47 Namely, Funk, Kelly, Hayes, and Mukai.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nothing about the alleged Funk and Mukai complaints until after Roberts' dis-
charge. That being so, it would serve no useful purpose to further discuss these
incidents for they had no bearing, whatsoever, upon Respondents' determination to
discharge Roberts.
With respect to the Hayes incident, Roberts testified, without contradiction, and
the Trial Examiner finds, that upon his return from delivering the Hayes car he
handed the money he had received from Hayes, less the $1 tip, to Swanson.48
Sachs, Jolene Greene, Respondents' then service department cashier,49 and Leh-
rack, each testified that Evamae Keener, Respondents' office manager, informed
them that customers were complaining of being billed for the repairs for which
they had paid Roberts upon his delivery of their cars. Swender testified that "the
office" called his attention to the Funk, Kelly, and Mukai complaints and that he,
personally, spoke to Hayes about her complaint. Lehrack, however, testified that
Hayes complained to Keener. In view of the inconsistency of the testimony of
Respondents' witnesses with respect to Roberts withholding the Funk, Kelly, and
Mukai payments, coupled with the fact that neither Keener nor the four named
customers testified, the Trial Examiner finds Roberts' testimony that he did not with-
hold any customer's money to be in accordance with the facts. This finding is
buttressed by the, fact that not only did Roberts impress the Trial Examiner as being
a truthful and forthright witness but that when Roberts returned to Respondents'
place of business a day or two after his discharge, Swender stated, in response to
Shop Committeeman Thomas' 50 statement that Roberts was "honest and faithful"
and that a person of his caliber, who did not drink or smoke, "would have to be a
fairly good boy," that he agreed that Roberts was telling the truth about turning
in the money received from the aforementioned customers, to which statement
Sachs nodded her head in agreement.
Upon the basis of the foregoing, and upon the record as a whole which clearly
establishes that: (1) Respondents made no investigation about the purported short-
ages prior to firing Roberts; (2) Roberts, when he returned with customers' money,
would turn it over to Swanson, the service department cashier or her replacement,
or to one of the two service writers; and (3) after Roberts' discharge, Respondents
instituted a system whereby when the pickup and delivery boy would turn in the
customers' money, the person receiving it must give the boy a receipt therefor, the
Trial Examiner finds that Roberts was discharged on March 6, and thereafter re-
fused reinstatement, because of his known union membership and activities and not
for the reasons advanced by Respondents.
Lewis Miller was continuously employed by Respondents from the last day of
February 1960 until his termination on March .15, 1961, as, service salesman or
service writer, except for a 2-week period in March 1961 when he was a dispatcher.
As a service writer, Miller's average monthly compensation amounted to $740.51
Miller attended the January 28 meeting at Tinker's home, joined the Union and
paid the union initiation fee there , and commencing sometime during the following
week he openly wore his union button while at work.
On or about February 14, Swender told Miller and Norman Heater, the other
service writer, in Swanson's presence, that, to quote from Miller's credited testimony:
there would be a slight change in the procedures of service writing and
dispatching and so forth, and it had quite a bit to do with us because he was
going to use one of us on the service floor and one of us on the dispatch board,
and at that time he had decided that I would stay on the floor writing service
and Norm would go on the dispatch board.
45 Swanson , although called as a Respondents ' witness, did not deny that he had not
received the Hayes money from Roberts. In addition , Hayes was not called as a witness,
nor was the customer's copy of Respondents' office copy of the bill introduced in evidence
or produced at the hearing.
49 Presently, Greene is Respondents' main office cashier.
ao Thomas was present at this meeting, also attended by Sachs, Swender, and Roberts,
at Sachs' Invitation. When Thomas was invited to the meeting, Sachs told him that
she extended the invitation because he was one of the oldest employees in terms of service
and because "she knew she could trust (his) judgment" Thomas' version of what tran-
spired at the meeting is in substantial accord with Roberts'.
51 Base monthly pay of $350 plus commission . The dispatch job pays a monthly wage
of $400. Prior to being employed by Respondents, Miller worked for George Moyer as
a partsman for 4 years and then worked for Moyer for 5 years as a service writer. The
reason Miller left Moyer's employ to work for Respondents was to receive higher wages.
At Moyer's, Miller received between $575 and $600 per month as service writer.
SACHS & SONS AND HELEN SACHS, INC. 1215
The reason he gave for the choice was that I had within the last recent
months had a slightly better sales record than Norm had had on the sales
floor. So he thought probably I would be best to stay on the service floor.
On the last day of February, after Miller had been writing service for 2 weeks,
Swender called Miller, Heater, and Swanson into his office and stated , among other
things, to again quote from Miller 's credited testimony:
he was going to make another change . He wanted me to take over the
dispatch board, and he wanted Norm to go back onto the service floor, and
we (Heater and Miller) would start rotating every two weeks because . . he
realized it was a little bit hard on the pocketbook , . . and he wanted to keep
it as even as possible, as far as the pay was concerned. That would give me
an opportunity every two weeks to be on the floor , and it would also give
Norm an opportunity to be on the floor , because this was more money to be
writing service than writing dispatch.
This meeting concluded with Miller and Heater accepting the rotation plan, and
with the working out the mechanics with respect thereto, Miller and Heater both
would again write service.
On March 14 , after Miller had been on the dispatch job for 2 weeks, he and
Heater went into Swender's office .to inquire whether Miller was to take the service
writing job the following day and Heater the dispatch job. Swender 's only com-
ment was that he would "see about it tomorrow ." Since they could not ascertain
what Swender had decided regarding rotating their jobs , Heater and Miller agreed
between themselves that the former would , commencing the next day , March 15,
take the dispatch job and that Miller would write service.
The next morning, March 15, Miller arrived at the shop about 6:30, preparatory
to writing service, opened up the main gate an hour later , and commenced writing
service about 7:30. About 8 a.m., Heater arrived, took over the dispatch board,
and handled some service orders Miller had written that morning . About that
time , Swanson asked Miller why he was writing service instead of attending to the
dispatch job. When Miller replied that as far as he knew he and Heater were to
rotate jobs every 2 weeks, Swanson said that he "didn't think that it was going
to be that way any more ," and suggested that Miller speak to Swender about the
matter. After asking Heater to attend to the waiting customers while he talked
to Swender about the status of the rotation plan, Miller went into Swender 's offices
and asked Swender "what the story was on the switch of rotation ." According
to Miller's credited testimony the following then ensued:
He told me . . . that I was no longer writing service, that I would have to do
the dispatch work as a permanent job.
So . I said, "In other words, as of two weeks ago, I actually was laid off
my service job, and you just didn't tell me about it, and now you are telling
me that I have to take the job as a permanent position , instead of rotating back?"
He said, "Yes, that's about it.. "
I said , "Well, in other words, it is definitely set up that I am supposed to do
the dispatch work on a permanent basis of $400 a month instead of writing
service , and I had been laid off permanently of my service writer's job" and
he said , "Yes." 52
After informing Swender that he would accept the dispatch job provided it paid
a higher salary , and Swender replying , "That's all it pays ," Miller left the shop,
remarking that he would take the layoff.
Miller then went home, got his uniforms , returned to the shop and turned the
uniforms in, and then sought out Sachs to ascertain the reason for being relieved
of his service-writing job. Sachs replied, to again quote from Miller's credited
testimony:
. because the boys were being represented by the union as of now she could
no longer actually run the shop the way she would like to, and that . . through
the seniority of the employees I would have to be the one that took the layoff
of the service writer's job, because Norm Heater had been with the company
longer than myself.53 ,
The conversation concluded with Miller bidding Sachs goodby and leaving the
shop. - -
sa Swanson was present throughout this conversation but took no part in it.
sa While Heater might have had more company seniority than Miller, the fact remains
that Miller had more service-writing seniority with Respondents.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents' contention that Miller was selected for layoff in preference to
Heater because Heater had greater company seniority is without merit or substance.
In the first place, there is no credible evidence in the record that Respondents ever
had, or now have, any seniority policy with respect to layoffs. This finding is but-
tressed by the fact that shortly before the Board-conducted May 11 election, which,
incidentally, the Union lost, Respondents, in a letter which they sent to their
employees, stated, among other things:
5. Question.-Does the Union bring seniority in if they are elected?
Answer.-IT DEPENDS UPON WHAT THE EMPLOYER AND THE
UNION CAN AGREE ON. IF THEY COME TO SOME AGREEMENT
ON SENIORITY, THEN IT WILL BECOME PART OF THE PLANT RULES
AND EVERYONE WILL BE BOUND BY IT. SENIORITY HAS ADVAN-
TAGES AND DISADVANTAGES JUST LIKE ANYTHING ELSE. IT
MAY MEAN MORE JOB SECURITY ON ONE HAND. ON THE OTHER
HAND, A GOOD WORKER MAY BE BUMPED WHILE A POOR WORK-
ER IS KEPT ON-AND GOOD WORKERS MAY SOMETIMES FIND
THEMSELVES SHIFTED INTO LESS DESIRABLE JOBS TO FILL GAPS
LEFT BY A LAYOFF.
Secondly, Miller was first selected to continue to write service and Heater assigned
to dispatching. These selections were decided upon because, as Swender advised
Miller and Heater on February 14, Miller had a better sales record than Heater.
In the third place, at a dinner meeting held about mid-1960, attended by the Re-
spondents' employees and their wives, Sachs, in an address to those present, congrat-
ulated Miller for his splendid sales record and had him stand up and, presumably,
accept the diners' plaudits. In the fourth place, Swanson, despite Swender's testi-
mony that he had no rotation plan for Miller and Heater, testified, and the Trial
Examiner finds, that Swender stated in February to Miller and Heater, in his pres-
ence, ,that due to lack of business he was going to have Swanson, Miller, and Heater
each take turns "at the dispatch board and also write service." Upon the basis of
the above findings, and upon the entire record in the case, the Trial Examiner finds
that Miller was discharged for the reasons alleged in the complaint and not for the
reasons advanced by Respondents.
Andrew Guillory started to work for Respondents on October 1, 1960, as a used-
car lotboy and remained as such until the following February 10. Guillory's duties
were to keep the cars clean, wash the cars, keep air in the tires, keep the batteries
properly charged, and keep the lot and office clean. Guillory was under the super-
vision of Used-Car Sales Manager Thomas Beaty and his assistant, Hank Seymour.
On or about February 1, Guillory handed Appel a signed union membership appli-
cation card. Guillory had received a blank card from Raymond Peoples, a polisher
of new cars.
On February 10, Swender assembled Guillory and the new-car porters 54 in the
new-car service department and informed them that because business was slow, he
was going to institute a 30-day rotation system among the porters and Guillory, be-
cause he (Guillory) was the last of them to be hired, would be the first to be laid off.
About 2 weeks after Guillory was laid off, he returned to Respondents' shop and
asked Swender about going back to work. The latter advised Guillory that he hoped
to be able to put him to work soon and that he was to "just keep coming over and
checking."
On March 10, Guillory again inquired of Swender about returning to work,
Swender replied:
Well, I am sorry that I tried to get in touch with you this week and I couldn't get
a hold of you. The lady next door said that you had moved . . . I have already
hired a man, but I will try to get you on.
In response to Swender's inquiry as to whether Guillory had a telephone, the latter
gave him his (Guillory's) pastor's telephone number.
Guillory put on his original employment application, the telephone number of his
neighbor. On December 18, Guillory removed his residence from that listed on his
employment application (7361/4 East 74th Street, Los Angeles, California) to 841
East 74th Street, Los Angeles. At the time Guillory moved, December 18, he asked
for and obtained a company truck from Beaty. When Guillory returned the truck
the following morning, Beaty asked him "To where did you move." Guillory replied,
54 Namely, James and Sam Cruel , and Peoples.
SACHS & SONS AND HELEN SACHS, INC. 1217
"841 East 74th Street"; Guillory then reminded Beaty that he previously had given
Beaty his new address.55
At the time of Guillory's termination on February 10, there were between 85 and
90 cars on the used-car lot. This compared favorably with the normal inventory of
about 85 used cars. In order to handle the used-car lot work after Guillory's dis-
charge, Respondents transferred James Cruel to that location as porter or used-car
lotboy, leaving the other Cruel brother and Peoples as the only new-car porters.
Since Peoples and Sam Cruel were unable to handle all the porter new-car work
after James Cruel's transfer, Respondents were relegated to sending many of their
cars formerly washed by their own lotboys or porters to a car wash concern located
some 3 miles from Respondents' place of business, for washing.
In February, Respondents hired Robert Stensel to perform janitor work and to
assist in washing new cars. In March, Respondents hired Charles Christain mainly
for the purpose, as Swender testified, of "augmenting (Respondents') janitor
service." 56
The Trial Examiner is convinced, and finds, that Guillory was singled out for dis-
charge on February 10 because of his union membership. This finding is buttressed
by: (1) Guillory was apparently a good worker and liked by his main boss, Beaty, for
the latter loaned him a truck in December 1960 so that he could move his possessions
to his new home; (2) Swender's failure to inquire of Beaty as to whether he knew
Guillory's new address after being informed by Guillory's neighbor that Guillory had
moved; (3) either during the first or second week of March, Appel asked Swender
when Guillory would be put back to work since Guillory's 30-day layoff was up on
March 10. Swender replied that he had been unable to contact Guillory in order to
advise him to return to work. When Appel stated that he would gladly go to Guil-
lory's home and tell him to return to work, Swender told Appel it was none of the
latter's business; and (4) hiring of Stensel and Christain to do work which Guillory
did or could have performed 57
It is the apparent contention of Respondents that even if it be found that they
unlawfully discharged Guillory they should not be ordered to reinstate him nor pay
him any backpay for they, in good faith, attempted, although unsuccessfully, to offer
him reinstatement by calling the telephone number Guillory had placed on his original
employment application. With this contention the Trial Examiner cannot concur.
Respondents' unlawful discharge of Guillory stands unremedied to this day. It is
entirely reasonable to conclude, which the Trial Examiner does, that an unsuccessful
attempt to correct a violation of the statute would not accomplish its objectives. Any
argument to the contrary overlooks the fact that the need for locating Guillory arose
in the first instance through no fault of his, but solely because of Respondents' wrong-
ful conduct. Having started the chain of circumstances resulting in the need for
reaching Guillory, Respondents should be required to accept the risks resulting from
their conduct.
In N.L.R.B. v. Jay Company, Inc., the Ninth Circuit said in 227 F. 2d 416 at
p. 419,58 regarding a situation very similar to that here presented, "Respondent made
no effort to notify Shannon (the dischargee) other than by mailing the letter.59
Shannon had been unlawfully discharged. It was Respondent's duty to remedy the
wrong. The loss of employment frequently is followed by a change of domicile. A
few inquiries might and probably would have resulted in learning where Shannon
could be contacted. The Board was justified in concluding that the duty had not been
fulfilled" 60
Harvey D. Campbell worked continuously for Respondents from October 21, 1957,
until his discharge on March 3, 1961. From the commencement of his employment
until about 'September 1959, Campbell worked as a pickup and delivery boy and
thereafter worked as a new-car thousand-mile get-ready mechanic.
Campbell attended the January 28 meeting at Tinker's home, signed a membership
application card and paid the required initiation fee there , and commencing on Janu-
ary 30, openly wore his union button while at work.
66 Guillory also gave Appel and James Cruel his new address
Q° On occasion , Christain helped Stensel to clean new cars.
6l DeSmet's prophecy to Peoples that Sachs would fire anyone belonging to the Union
proved correct.
58 Enfg. as modified Jay Company, Inc , 103 NLRB 1645.
®Respondent's registered letter to the discbargee offering reinstatement was returned
by the Post Office . It had not been delivered to the addressee because of his absence from
the address, the only address of the discharges known to his employer.
eo In accord : N L.R B. v. Deena Products Company. 195 F. 2d 330 , 333 (C.A. 7)
634449-62-vol . 135-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record discloses that some 2 or 3 years ago, Campbell had an accident while
operating a Respondents' car and Respondents' insurance carrier was obligated to
pay about $3,800 as a result thereof. In July 1960, the insurance carrier wrote
Respondents requesting Campbell's employment termination.
The record leaves no doubt Campbell had a series of traffic problems. Thus, in
August 1959, Campbell informed Swanson that he had received a letter from the
Motor Vehicle Department stating that Campbell might lose his license to drive a
motor vehicle. Swanson replied that if Campbell's license was revoked, he would
assign Campbell to a job which would not necessitate the driving of a motor vehicle,
adding that since Campbell had been requesting a transfer to the new-car department,
he would arrange such a transfer as soon as he could.
In September 1959, Campbell spoke to Sachs and then New-Car Sales Manager
Ray Fladeboe about being transferred to the new-car department.sl Sachs and Flade-
boe then transferred Campbell to the new-car department as a thousand-mile service
mechanic "because of the problems [Campbell] was having of excessive miles and
receiving numerous [traffic violation] tickets."
In the latter part of September 1959, Campbell told Swanson that his driving
license had been suspended for 30 days. Swanson thereupon instructed Campbell
"to have the other men in new-car department road-test the cars for him."
On February 10, 1961, Swanson called Campbell into his office. There, Sachs, in
the presence of Swender, Swanson, Bristol, Service Cashier Jolene Greene, Appel,
Campbell, and Thomas, stated that she had received a letter in July 1960 from Re-
spondents' insurance company requesting Campbell's discharge because of the afore-
mentioned 1958 accident for which the insurance company had to pay some $3,800.
Sachs then stated that she had received another letter from said insurance company
that morning, February 10, again requesting Campbell's discharge. Bristol then
suggested that Campbell be discharged immediately. When Campbell asked what
he could do to retain his job, Sachs replied that Campbell "could hire a boy to come
in and subtract $100 from" his paycheck "to pay him to drive cars for" Campbell.
When Campbell inquired whether or not he could supply his own insurance, Sachs
replied, "it might be possible."
During the luncheon period that day, February 10, Appel, in Campbell' s presence,
telephoned Union Representative Edwards and informed him of the substance of
what had occurred that morning at the meeting referred to immediately above.
Later that day, February 10, Edwards telephoned Sachs and during the course of
the conversation, Sachs commented, to quote from Edwards' credited testimony,
"David Campbell was a good boy but he had received numerous [traffic] citations
and she just couldn't afford to have him there without proper insurance." In re-
sponse to Edwards' inquiry as to the amount of insurance Campbell would have to
supply in order to retain his job, Sachs referred him to Respondents' insurance
carrier. Edwards, after a telephonic conversation with Respondents' insurance
carrier, telephoned Oce Abbott, the insurance agent who handles the insurance on
the Union's building, and inquired whether "we could get an assigned risk policy
for Mr. Campbell."
Under date of February 13, Edwards wrote Respondents as follows:
Following the telephone conversation with you regarding the above-mentioned
subject, I contacted a Mr. Mann of the Universal Underwriters and your
Attorney, Mr. Fredricks, regarding this matter.
It is my understanding that the Universal Underwriters can no longer cover
Mr. David Campbell in your Company's general liability policy due to Mr.
Campbell's driving record from approximately July 1957 through May 1959,
while he was employed as a pick-up and delivery man. Inasmuch as Mr.
Campbell is now employed as a New Car get ready mechanic by your Com-
pany, I am of the opinion that his exposure to traffic citations has been con-
siderably lessoned [sic ] as borne out by the fact that Mr. Campbell has not
been issued any citations since May 1959.
I have taken the liberty of contacting an agent of the Fireman's Fund Insur-
ance Co., regarding the issuance of an excess limits , liability and property
damage policy on Mr. Campbell to insure your Company against any-loss due
to Mr. Campbell's operation of your equipment during working hours. I have
been informed by this agent that the Fireman's Fund Co. only checks back into
81 At the time of the hearing herein , Campbell was in the new-car department of Ray
Fladeboe. Lincoln-Mercury, "doing substantially the same work there as" he did for
Respondents.
SACHS & SONS AND HELEN SACHS, INC. 1219
the record of traffic citations for a period of two years and on that basis,
Mr. Campbell only has one citation issued in May 1959 according to the
D.M.V. records.
Therefore, if you would furnish Mr. Campbell with the amount of coverage
that your Company requires in this matter, I am sure that the Fireman's Fund
Insurance Co., through their agent, Mr. Oce Abbott, 803 South Gaffey St.,
San Pedro, Calif., can furnish the proper coverage at Mr. Campbell's own
expense.
On February 14, Sachs and Swender went to Campbell's work area and the
following took place, according to Campbell's credited testimony:
. and Helen Sachs wanted to know what this was all about me being termi-
nated. She said she was not going to terminate me, that I just had a problem,
and she said, "If it wasn't for that," and she pointed to the union button that
I wore on my shop coat, "I could help you, . . . You have chosen Charles
Edwards to represent you, and it is a problem for you and him to work
out. . . . I could tell you how much insurance it would take to get coverage
for yourself, but I am not going to at this time, because the way things are
misconstrued through this shop I couldn't dare tell you."
She said that for me to pick an insurance agent of my choice and have him
call her, and she could [sic] tell him the limits of liability to protect me.
On February 16, Sachs telephoned Oce Abbott and in his absence spoke to Beverly
Russell, Abbott's secretary, to inquire whether Abbott was able to obtain insurance
for Campbell. When Russell replied in the affirmative, Sachs asked, to quote from
Russell's credited testimony, "whether we were aware of his (Campbell's) driving
record, the accident he had, his citations"; to which remark Russell "told her that
we were able to insure Mr. Campbell, and that we were aware of his citations and
his accident." When Sachs inquired what the premium would be, Russell said
that was a matter between Abbott and Campbell and since she (Sachs) "wouldn't
be paying it, so it-would be something that she wouldn't be concerned with."
About 10 a.m. on February 22, Swender called Campbell and Appel into a 'sales
office and inquired why Campbell had not delivered to Respondents an insurance
policy. When Campbell replied, "I didn't know, that I thought everything was being
taken care of," Swender instructed Campbell "to take off work at that time and to
find out the reasons this insurance hadn't come through." Thereupon Campbell
left the shop.
The following day, February 23, Campbell, accompanied by Edwards, went to
Abbott's office and made application for $500,000 worth of insurance. Russell
then prepared, signed, and delivered to Campbell the following letter, dated Febru-
ary 23, addressed to Sachs: 62
This letter will confirm that an insurance policy is in the process of being
issued for Harvey David Campbell, effective February 23, 1961, for the limits
of liability you require.
A certificate of insurance will be issued and forwarded to you shortly.
Between 1:30 and 2 o'clock that afternoon, February 23, Campbell returned to
the shop and handed Sachs the above-quoted letter. Sachs stated that said letter
was not "sufficient" and that when Campbell obtained a complete, written policy he
could return to work. Sachs, however, kept the letter 63
Under date of February, 21,, Russell wrote Sachs, in part,, as follows:
Re: Your employee-David Campbell.
Thank you for your telephone call regarding your above employee.
As I understand the matter, the delay in the processing of the insurance for
Mr. Campbell is a result of you not providing Mr. Edwards or our office with
the exact limits of liability required. Mr. Edwards requested this information
from you last week.
May we have your attention to this matter by return mail.
62 Russell has authority to accept applications for insurance , to write insurance policies,
to rate policies, and the like.
08 About 5 p.m. that day, February 23, Edwards telephoned Sachs and asked her to
reinstate Campbell pending the receipt of the completed insurance policy. Sachs did not
commit herself one way or the other.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 28, Campbell obtained from Abbott's office a document reading, in
part, as follows:
HELEN SACHS, INC.
SACHS & SONS, LINCOLN MERCURY
10720 South Downey Avenue
Downey, California
This is to certify that the Company or Companies checked above have in
force as of the date hereof the following policy or policies:
Name and Address of Insured or Employ-r
Harvey David Campbell
11825 Summer Avenue
Norwalk, California
Kind of Insurance Policy Number Expiration
Excess Limits
of Liability
AUTOMOBILE:
Bodily Injury Liability-------- XL 17879 2-23-62 290 thousand dollars,
Property Damage Liability____ XL 17879 2-23-62
each person
480 thousand dollars,
Medical Payments______________________________
each accident
20 thousand dollars,
Special Conditions or Coverages
each accident
Excess limits of liability over $10/20,000 Bodily Injury Liability and
$5,000 Property Damage Liability with Western Pioneer, Primary
Policy No. PCF 005660-
Combined Limits of Liability-$300/500,000 Bodily Injury Liability
$25,000 Property Damage Liability
In the event of any material change in or cancellation of the policy or policies,
the Company will make every effort to notify the addressee but undertakes no
responsibility by reason of failure to do so.
The same day, February 28, Campbell took the document referred to immediately
above to the shop and showed it to Swanson. The latter said the document looked
in order and immediately put Campbell to work. Later in the day, Campbell
delivered the said document to Sachs, who retained it.64
Under date of March 1, Lehrack wrote Abbott, in part, as follows-
We acknowledge receipt of your Certificate of Insurance acknowledging that
Fireman's Fund Insurance Company has in force Policy Number XL 17879
covering excess limits of liability in the amount of 290/480 for Automobile
Bodily Injury Liability and 20/ Automobile Property Damage liability, said
policy to expire on February 23rd, 1962.
We notice that the form used has the following clause-
"In event of any material change in or cancellation of the policy or policies,
the Company will make every effort to notify the Addressee but undertakes no
responsibility by reason of failure to do so."
Due to the circumstances under which this Certificate of Insurance is ac-
cepted, it must be understood that WE WILL be notified if there is any change
in the coverage or if the policy is cancelled.
We ask that you please confirm this in writing so that there will be no
misunderstanding.
On March 3, Swender, in Appel's presence, told Campbell that Sachs had stated
"that she was not named insured [sic] on the policy" and thereupon Swender told
Campbell "to take off work at this time." Appel, to quote from his credited testi-
mony, "Then asked Mr. Swender if he would please give me 65 in writing exactly . .
what they would require so that Davy :(Campbell) could come back to work and
we could get the whole matter cleared up. Swender did not give me an answer."
Respondents produced the document at the hearing
Appel was then shop steward
SACHS & SONS AND HELEN SACHS, INC. 1221
On March 17, Campbell went to the shop and told Swender that he "could not
afford insurance at this time" and Swender agreed.66 Campbell then told Swender,
"He could fire me or lay me off or whatever he liked." 67
The very sequence of events surrounding Campbell's layoff and his subsequent
discharge renders immediate suspect Respondents' proffered explanation in justifica-
tion of their conduct. Thus, in the face of the convincing credited evidence that
Campbell's discharge was plainly attributed to Respondents' unconcealed animosity
to Campbell's union membership, Respondents urge that the true reason for the
discharge was Campbell's numerous traffic violations and citations and his apparent
inability to secure insurance acceptable to Respondents. The Trial Examiner is
convinced, and finds, that Campbell's careless driving only became insupportable in
Respondents' eyes when he joined the Union which Respondents opposed and that
Respondents' advanced reason is merely an obfuscation to conceal Respondents'
unlawful intent.
Upon the entire record in the case, the Trial Examiner finds that Respondents 68
discharged and thereafter refused to reinstate Creed Tinker, Samuel Ballinger,
Harvey D. Campbell,69 Mart M. Roberts, Jr., Lewis Miller, and Andrew Guillory,
and laid off David Miller from February 15 until March 4, 1961, because of their
memberships and activities in behalf of the Union. By so doing, Respondents
violated Section 8(a)(3) of the Act and since such conduct necessarily interfered
with, restrained, and coerced aforementioned seven persons and their coworkers in
the exercise of the rights guaranteed in Section 7, Respondents also violated Section
8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connec-
tion with the operations of Respondents as described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and such of them as have been found to constitute unfair labor
practices tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices violative
of Section 8(a) (1) and (3) of the Act, it is recommended that they cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondents have discriminated in regard to the hire and tenure
of employment, and the terms and conditions of employment, of Tinker, Campbell,
Lewis Miller, Guillory, and Ballinger, it is recommended that Respondents offer
them immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges. It is also
recommended that Respondents make Tinker, Campbell, Lewis Miller, Guillory, and
Ballinger whole for any loss of pay each of them may have suffered by reason of
Respondents' discrimination against him, by payment to each of a sum of money
equal to the amount he normally would have earned as wages from the date of his
discharge to the date of the Respondents' offer of reinstatement, less his net earnings
during that period.
It is also recommended that Respondents make David Miller whole for any loss
of pay he may have suffered by reason of Respondents' discrimination against him,
by payment to him of a sum of money equal to the amount he would have earned
from February 15 to March 4, 1961, less his net pay during that period.
It is also recommended that Respondents make Campbell whole for any loss of
pay he may have suffered from February 22 to 28, 1961, less his net earnings during
that period.
At the time of the hearing Roberts was in the military service . If he is still in the
Armed Forces, it is recommended that Respondents immediately notify him by
60 The yearly premium on the extended insurance procured through Abbott was $420.
07 Campbell, at that time, was on discharge status.
68 Concededly Sachs & Sons and Helen Sachs , Inc., are for the purposes of this proceed-
ing a single employer. Therefore, it is found that Sachs & Sons and Helen Sachs, Inc.,
are severally and jointly liable for whatever backpay may be found due to the dis-
criminatees herein and are likewise jointly and severally responsible for the remedying of
each and every unfair labor practice found in this proceeding
ea The Trial Examiner also finds that Campbell was discriminatively laid off from Febru-
ary 22 to 28, 1961.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
registered letter addressed , to -his last known ; address, that the aforementioned offer
of reinstatement , is continued until 90 days after his discharge from the Armed
Forces. The backpay period as to him will run from the date of his discriminatory
discharge until induction into the• Armed Forces 70 and from a date 5 days after
timely application for reinstatement until the date of Respondents ' offer of rein-
statement.
Loss of pay shall be computed and paid in accordance with the formula adopted
by the Board in F. W . Woolworth Company, 90 NLRB 289.
The unfair 'labor practices found to have been engaged in by Respondents are of
such a character and scope that in order to insure Respondents ' employees of their
full rights guaranteed them by the Act , it will be recommended that Respondents
cease and desist from in any manner interfering with , restraining , and coercing their
employees in their rights to self -organization.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Association of Machinists , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. Sachs & Sons and Helen Sachs, Inc., are a single employer within the meaning
of Section 2(5) of the Act.
3. Respondents , during all material times, have been engaged in, and now are en-
gaged in, commerce within the meaning of Section 2(6) and (7) of the Act.
4. By discriminating in regard to the hire and tenure of employment and the terms
and conditions of employment of Creed Tinker, Samuel Ballinger , Harvey D. Camp-
bell, Mart M . Roberts, Jr., Lewis Miller , David Miller , and Andrew Guillory,
thereby discouraging membership in the Union , Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
5. By interrogating their employees regarding their union activities and sympathies,
by threatening their employees with discharge if they join or remain members of the
Union , by threatening their employees with a loss of pay if they remain members of
the Union , and by otherwise interfering with, restraining, and coercing their em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
70 The payment of this amount shall be made immediately without awaiting final de-
termination of full amount of award Modern Motor Express , Inc, 129 NLRB 1433
The Hughes Corporation and Alonzo C. Lanier. Case No. 6-CA-
2281. February 21, 1962
DECISION AND ORDER
On December 15, 1961, Trial Examiner Sidney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
filed exceptions with a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
135 NLRB No. 113.