Southwest Chevrolet Corp.

National Labor Relations Board - Board Decisions

Jan 13, 1972

194 N.L.R.B. 975 (N.L.R.B. 1972)

SOUTHWEST CHEVROLET CORP. 975
Southwest Chevrolet Corp. and American Federation
of Professional Salesmen. Case 13-CA-10064
January 13, 1972
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
KENNEDY
On May 20, 1971, Trial Examiner Lloyd S.
Greenidge issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Counsel
found a brief in support of and cross-exceptions to the
Trial Examiner's Decision.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs, and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order, as modified below.
We agree with the Trial Examiner that the Respon-
dent violated Section 8(a)(5) and (1) of the Act by its
refusal to bargain in good faith with the Union from
on or about April 23, 1970, and continuing to on or
about November 17, 1970. In addition, the Trial
Examiner found that the Respondent violated Section
8(a)(1) and (3) of the Act by discriminatorily
discharging Edward Behrendt on June 19, 1970.
Contrary to the Trial Examiner, we find, for the
reasons stated below, that the General Counsel has
not shown by a preponderance of the evidence that
the selection of Behrendt for discharge was discrimi-
natorily 'motivated, and we do not adopt the Trial
Examiner's findings, conclusions, and recommenda-
tion in this regard.
As evidence of union animus toward Behrendt the
Trial Examiner relied on the agreement and stipula-
tion resulting in the entry of a Board's Order in which
the Respondent admitted certain conduct and agreed
to cease and desist from certain conduct and to take
affirmative action, including the reinstatement of
"Edward Behrendt's bi-weekly draw to $225," which
had been unilaterally reduced.2
The agreement and stipulation did not admit to any
violations of the Act, nor were any violations of the
Act found. In the circumstances we find that the Trial
Examiner's reliance on the settlement agreement as
1 The Respondent after the close of the hearing filed a motion for an
order to reopen the record to show that a collective-bargaining agreement
had been entered into between the parties , contending that such agreement
refutes the allegation that it refused to bargain with the Union in good
faith It is well settled that an employer 's execution of a contract with a
union with which it previously refused to bargain in violation of the Act
evidence of union animus was misplaced. The Board
has uniformly held that settlement agreements, and
consent decrees arising therefrom, have no probative
value in establishing that violations of the Act have
occurred and may not be relied on to establish either
union animus or a "proclivity" to violate the Act.3
This approach is founded on both legal and practical
considerations. We consider the Board's settlement
efforts to be a very important part of its mission.
Using a settlement agreement, as the Trial Examiner
has done here, for inferring unlawful motivation for a
subsequent action would in our opinion jeopardize
the Board's efforts to obtain settlement agreements.
This could and would result in increased and often
unnecessary litigation.
Thus, we find insufficient basis for inferring union
animus as a consideration in Respondent's selecting
Behrendt for dismissal over other employees who
might have been selected. Nor do we consider that the
bases on which the Respondent evaluated Behrendt's
performance were necessarily arbitrary or capricious.
While we agree that by using hindsight, or other
statistics, a different conclusion could be reached, we
cannot find that this is sufficient to warrant the
conclusion that the reasons stated by the Respondent
were not economically justified. Accordingly, we shall
dismiss the allegations in the complaint that the
Respondent violated Section 8(a)(1) and (3) by
discharging Behrendt, and we do not adopt the Trial
Examiner's recommendation that a broad cease-and-
desist order is required.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that the Respondent, Southwest Chev-
rolet Corporation, Chicago, Illinois, its officers,
agents, successors , and assigns , shall take the action
set forth in the Trial Examiner's recommended Order,
as so modified.
1. Delete' paragraph 1(a) of the recommended
Order, relettering the remaining paragraphs accord-
ingly, and substitute the following for relettered
paragraph (d):
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Delete paragraphs 2(a), 2(b), and 2(c) of the
does not render the issue of such violation moot The motion is therefore
denied See Southern Tours, Inc, 167 NLRB 363, 367
2 DS-920, issued March 25, 1969.
3 See, e.g, C. & T Trucking Co, 191 NLRB No. 2.
4 Paragraph 3 of the Trial Examiner's Conclusions of Law is hereby
deleted
194 NLRB No. 157
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended Order and reletter the remaining
paragraphs accordingly.
3. Substitute the attached notice for the Trial
Examiner's notice.
APPENDIX
Union with updated information previously re-
quested by it for use in contract negotiations.
SOUTHWEST CHEVROLET
CORPORATION
(Employer)
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE NATIONAL LABOR
RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively in
good faith with the American Federation of
Professional Salesmen as the exclusive representa-
tive of the employees in the following appropriate
unit:
All automobile salesmen employed by us at
our Chicago, Illinois, location, excluding
office and plant clericals, automobile me-
chanics, parts department employees, em-
ployees who are members of other labor
organizations, guards, and supervisors as
defined in the Act.
WE WILL NOT delay in furnishing or refuse to
furnish the above-named Union with relevant
information requested by it for use in the prosecu-
tion of employee grievances.
WE WILL NOT refuse to furnish the above-named
Union with relevant information requested by it
for use in contract negotiations or which is
reasonably necessary for the intelligent perform-
ance of its bargaining function.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed in Section 7
of the Act.
WE WILL, upon request, bargain collectively in
good faith with the above-named Union as the
exclusive representative of the employees in the
appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
WE WILL, upon request, meet and bargain
collectively with the above-named Union with
promptness and frequency concerning the negoti-
ation of a contract.
WE WILL promptly furnish the above-named
Union with updated information previously re-
quested by it for use in connection with the
prosecution of employee grievances.
WE WILL promptly furnish the above-named
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 881, Everett McKinley Dirksen Build-
ing, 219 South Dearborn Street Chicago, Illinois
60604, Telephone 312-353-7572.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE. CASE
LLOYD S . GREENIDGE , Trial Examiner : This proceeding,
under Section 10(b) of the National Labor Relations Act, as
amended, herein called the Act, was heard at Chicago,
Illinois, on March 24 and 25, 1971. A complaint issued
herein on December 22, 1970; it was thereafter amended on
January 7, 1971, February 5, March 2, and finally at the
hearing. The complaint , as so amended , is based on a
charge filed by American Federation of Professional
Salesmen on September 2, 1970, and duly served on
Southwest Chevrolet Corporation, herein called the Res-
pondent, the Employer, or Southwest, on September 3. The
questions presented are (1) whether Respondent violated
Section 8(a)(3) and (1) of the Act by discriminatorily
discharging Edward Behrendt ; and (2) whether Respon-
dent refused to bargain collectively with the Union in
violation of Section 8(a)(5) and (1) of the Act . Respondent's
answer, as amended, denies that it has violated the Act in
any respect alleged herein.
All parties were represented at the hearing and were
afforded an opportunity to adduce evidence , to examine
and cross-examine witnesses , and to file briefs . Briefs have
been received from the General Counsel and the Respon-
dent and have been fully considered.'
Upon the entire record,2 and from my observation of the
demeanor of the witnesses, and after due consideration of
the bnefs of the General Counsel and the Respondent, I
make the following:
i On May 3, 1971, the Respondent filed a motion to file bnef and,
attached thereto, a reply brief . As the Board's rules make no provisions for
reply briefs, the motion is denied and the reply brief is rejected.
2 The General Counsel 's unopposed motion to correct the transcript in
this proceeding is hereby granted . In addition to the foregoing corrections,
the transcript is inaccurate in various other respects relating primarily to
statements by and references to the undersigned and it is hereby further
corrected in the manner indicated in "Appendix B " (omitted from
publication) attached hereto.
SOUTHWEST CHEVROLET CORP. 977
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Illinois corporation maintains its office
and principal place of business in Chicago, Illinois, where it
is engaged in the retail sale and distribution of automobiles,
trucks, and related products. During the calendar year
1970, in the course and conduct of its business operations,
Respondent sold and distributed automobiles, trucks, and
related products valued in excess of $500,000, and
purchased and received products valued in excess of
$100,000 which were shipped to its place of business
directly from points outside the State of Illinois. It is
therefore found, upon the foregoing admitted facts, that
Respondent is now, and at all times material herein has
been, an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act, and the Board's jurisdictional standards.
II. THE LABOR ORGANIZATIONS INVOLVED
International Vehicle Salesmen's Union of America
(Independent), the Independent herein, and American
Federation of Professional Salesmen, AFPS herein, are,
and at all times material herein have been, labor
organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Some Background Facts; the Sequence of
Events; and the Issues Herein
Prefatorily, it should be stated that Respondent's
managerial hierarchy consisted of Al Neckrosh, general
manager from 1960 to June 15, 1970; James Kiley, new-car
manager from January 1967 to June 15, 1970; Mel Lee,
used-car manager from January 1968 to June 16, 1970; and
Vernon Swillium, finance and insurance manager, and
acting new-car manager from about April 1970 to the
middle of June 1970. The complaint as amended alleges,
Respondent admits, and I find that, during the periods set
forth above opposite their respective names Neckrosh,
Kiley, Lee, and Swilhum were agents of the Respondent
acting in its behalf within the meaning of Section 2(13) of
the Act and supervisors within the meaning of Section 2(11)
of the Act. It is further alleged, admitted and found that,
since on or about June 15, 1970, Robert Frank3 has been,
and is now, an agent and supervisor of the the Respondent
within the statutory definitions; and that, since April 1967
and April 1970, C. David Burns4 and Lee Burks,5
respectively, have been, and are now, agents of the
Respondent within the meaning of the statute.
As the result of an election conducted on or about May
23, 1967, under the supervision of the Regional Director for
Region 13, the Independent was certified by the Board on
or about June 1, 1967, as the exclusive bargaining agent in a
unit of all automobile salesmen employed by the Respon-
dent. Contract negotiations began shortly thereafter but
were terminated without any agreement being reached.
Thereupon, on October 30, 1967, the Independent filed an
unfair labor practice charge alleging that Respondent had
failed to bargain in good-faith in violation of Section 8(a)(5)
and (1) of the Acts On or about June 17, 1968, the
Independent affiliated with American Federation of
Professional Salesmen and after this became known as
International Vehicle Salesmen's Union of America
affiliated with American Federation of Professional
Salesmen, the Union herein. About a month later the
employees went out on strike. In September 1968, the
Union filed another unfair labor practice charge repeating
therein the substance of the earlier charge and adding a
general 8(a)(3) allegation.7 On January 6, 1969, the General
Counsel issued a complaint alleging violations of Section
8(a)(5), (3), and (1) of the Act.
Based on the charges and the complaint, the Respondent,
the Independent, and the General Counsel entered into an
agreement and stipulation for the entry of a Board order
and provided therein for the entry of a consent order by the
Board. On March 25, 1969, the Board approved the
aforesaid agreement and stipulation and issued an appro-
priate order. Thereafter, Respondent executed a collective-
bargaining agreement with the Union covering its automo-
bile salesmen effective from July 1, 1969, to June 30, 1970,
and automatically renewable from year to year thereafter in
the absence of written notice served by either party 60 days
before the expiration date thereof. On April 23, 1970,
Merlin W. Griffith, secretary-treasurer of AFPS and
chairman of the Union's negotiating committee, sent the
Respondent a letter in which he requested that it meet with
the Union at an early date for the purpose of negotiating a
new contract. A second notice to like effect was sent by
Griffith on May 8. The Respondent did not reply to either
communication but, in a telephone conversation initiated
by Griffith on or about May 18, C. David Burns,
Respondent's agent, advised that it was difficult for him to
set a date because his client was very busy. Between May 19
and June 19 when Griffith encountered Bums at bargaining
sessions involving other automobile dealers in the area, he
would invariably inquire about a meeting with Southwest.
Burns response to such inquiries was simply that "it was
hard to get a schedule where he could get Southwest's
people together with him so he could sit down and
negotiate."
The parties met on June 26 in connection with a
grievance arising from the discharge of three salesmen
including Edward Behrendt and, in the course of the
meeting, the Union again requested that the Respondent
begin negotiations. Following this, two bargaining sessions
were held, one on July 2, the other on November 18. The
record shows that on September 10 one S. W. Busch filed a
decertification petition as to Respondent's salesmen with
the Regional Director for Region 13 and that on December
29 the petition was dismissed. (Case 13-RD-787) As
already noted, the complaint herein issued on December
22. The complaint, as amended, alleges that, since on or
about April 23, 1970, and continuing to on or about
November 17, 1970, Respondent failed and refused to
3 General manager . 5 Burns' assistant
4 Executive vice president of the Employers' Association of Greater 6 Case 13-CA-8097.
Chicago. I Case 13-CA-8677.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain in good faith in violation of Section 8(a)(5) and (1).
It is further alleged that, on or about June 19, 1970,
Respondent discriminatorily discharged Edward Behrendt
in violation of Section 8(a)(3) and (1).
B. Discrimination in Regard to Hire and, Tenure of
Employment
1. The termination of Behrendt8
Edward Behrendt was hired by the Respondent in March
1964, primarily as a new-car salesman , and continued in its
employ until June 19, 1970, when , he was discharged along
with P. Zogg and R. Mason , other car salesmen.
Before the election in May 1967 Behrendt signed an
authorization card for the Independent and, in late 1967,
signed another for AFPS. While at work he openly
distributed union pamphlets and sought to obtain employee
signatures on union authorization cards. On one occasion,
General Manager Neckrosh told Behrendt that he was
making a mistake in joining a union. 'At the election,
Behrendt was an observer for the Union. Following the
tally of ballots, Griffith announced that the Union had won
and Burns, in the presence of Behrendt, remarked that "the
ballgame isn't over yet." From late 1968 to 1969 , Behrendt
was a member of the Executive Board of AFPS. During the
strike in 1968, he picketed Respondent' s premises each day
and also distributed union literature from the picket line. At
some point while so engaged , Neckrosh asked Behrendt to
return to work. Following , the conclusion of the 'strike and
his return to duty, Behrendt observed that his biweekly
draw9 had been reduced from $225 to $150 and complained
to Griffith. Griffith then filed the unfair labor practice
charge in Case 13-CA-8677. As noted, the earlier charges 10
were the basis for the Board 's Decision and Order which, in
part, directed that Respondent "remstate Edward Beh-
rendt's bi-weekly draw to $225.00... .
Behrendt was apparently an avid supporter of unionism
because , on May 16 or 17, 1970, he assisted the Union in
picketing activity at Hollahan Dodge, another dealer
somewhere in Chicago. After Behrendt returned to work,
Swillium told him that he had acquired a "tan" and asked if
he had been "out marching ." The inference the General
Counsel invites from this, namely , that Swillium knew
Behrendt had picketed Hollahan Dodge is unwarranted.
The statements are at best ambiguous and no inference
adverse to the Respondent is drawn therefrom.
On June 15, Robert Frank replaced Neckrosh as general
manager of the Respondent. Frank has been employed by
the Ruby Corporation since 1939 and, prior to his
promotion, was assistant general manager of Empire
Chevrolet, a company in which the Ruby Corporation has
an interest . According to Arthur S. Wollack, vice-president
and comptroller of the Ruby Corporation, Southwest is a
wholly owned subsidiary of the Ruby Corporation.
About 3 p.m. on June 15 and 16, Frank held two meetings
S Unless otherwise indicated , the findings in this section are based on
exhibits and credited testimony which is admitted or undisputed
9 A draw is an advance on future commissions
10 Cases 13-CA-8097 and 13-CA-8677
11 Resp Exh. I.
11 No issue of successorship is presented as Respondent stipulated that,
with his sales staff of approximately seven employees. On
the first occasion, Frank announced that he had assumed
the position of general manager at Southwest and, on both,
declared that he intended to stimulate business by
advertising, among other things. In addition , according to
Behrendt , Frank stated that the sales force would remain
the same and no one would be fired. Henry Roozee,
another salesman , gave a somewhat different version of
Frank's remarks . Thus, Roozee recounted that he
"assumed" from what Frank had said about promoting
business that there would be no discharges . Roozee
impressed me favorably and I credit his testimony to the
extent that it conflicts with Behrendt's.
Again , on June 15 or 16, Wollack visited Frank in the
latter's office. Wollack brought with him a summary of the
sales records of the individual salesmen at Southwest for
the period January 1 through May 31 , 1970.11 After
reviewing the summary with Frank , Wollack wrote in, at
the extreme right side of the summary , the numerical
standing of each salesman based on an average of his new-
car sales per month and made like entries in Column 8
thereon based on a percentage of the salesman 's commis-
sions and salary to the company 's gross profit.
About 2 days later, on June 18, a meeting of the
representatives of the Ruby Corporation and Southwest
was held in the office of Sam Ruby , an official of the Ruby
Corporation and principal owner of Southwest . A compos-
ite of the testimony of Bums and Robert Frank who
attended the meeting establishes that the following
occurred : Shortly after the meeting convened , Ruby told
the group that he was losing money at Southwest and
declared that he would make the dealership a profitable
undertaking or close it . Continuing Ruby announced that
he had dismissed the entire managerial staff at Southwest 12
because the company had failed to show a profit and
advised that it would be necessary to make other changes in
personnel .13 Then sounding a note of caution Ruby stated
that , since Southwest has a union , he wanted to make
certain that any changes the company might make would
not get it in trouble with Labor Board or with the Union.
Elaborating Ruby explained that Southwest had salesmen
who were not producing and, in this regard , mentioned
shop steward Zogg. At about thisjuncture Frank produced
the summary he had obtained from Wollack and the
conferees reviewed the records of the salesmen as reflected
therein . Percentages were discussed in relation to who
should be kept or let go. Finally, Burns told the group that
the termination of Zogg would present a problem because
of his leadership role in the Union but that they need not be
concerned about the other salesmen as none strongly
supported the Union. Acknowledging an awareness of
Behrendt 's involvement in the Board's proceeding in 1969,
Bums nevertheless testified that he was of the opinion that
Behrendt did not actively support the Union. Near the end
of the meeting Ruby reminded Frank that "he was getting a
big break" and directed that he "do what has to be done to
while the managerial structure of Southwest was altered on June 15 and 16,
it has continued to function in its day-to-day affairs with no change in its
corporate identity.
13 New-Car Manager Kiley was discharged on June 15; Used-Car
Manager Lee was discharged on June 16
SOUTHWEST CHEVROLET CORP. 979
get the place turned around so it can make some money."
As the meeting closed, Frank stated that it appeared to him
it would be necessary to terminate Mason, Zogg and
Behrendt but then added that he had not made a final
decision in the matter.
Shortly before quitting time on June 19, Frank sum-
moned Behrendt to his office and, in the presence of
Wollack, told Behrendt the "arithmetic didn't add up" and,
without warning or notice, declared "I have to let you go."
Mason and Zogg 14 were discharged earlier the same day.
The following day, June 20, Zogg and the others
complained to Griffith about the discharges and Griffith
instructed them to seek "clarification" of the company's
actions. Thereupon, the men returned to the showroom and
demanded an explanation. To this, Frank replied "Well, I
just can't afford you." In the period June 1 through 19,
Behrendt sold and delivered 10 new cars. An additional car
was delivered on or about June 20 . At the level of 10 cars,
salesmen are paid a bonus of $3 per car. Behrendt's
Commission and Salary Report for the month of June
shows payment of a bonus of $30. Behrendt testified,
credibly and without contradiction, that about 5 months
before his discharge New-Car Manager Kiley told him that
some salesmen would have to increase their sales but that
he had no reason to be concerned because his sales were
"right up there."
Still later the same day, June 20, Griffith sent the
Respondent a letter protesting the discharges . It reads, in
part, as follows:
The Union requests that a conference be set up to argue
the above grievance and that the Company produce
sales records of all employees in the unit covering a one
year period previous to the discharge date, which was
June 19, 1970 and that the Company be prepared to
present to the Union any and all records requested by
the Union that is pertinent to this grievance.
Sometime between June 20 and 26, Griffith telephoned
Burns and, among other things, requested information
concerning Buying Service Deals, house deals, and the
number of cars sold by each salesman and profits therefrom
again for the year preceding the discharges.
In response to the Union 's letter of June 20 and its
telephonic request, a meeting was arranged and held on
June 26 in Burn 's office. Burns, his assistant,15 and Robert
Frank were present for the Respondent; Griffith was
present for the Union. Also in attendance were Behrendt
and Zogg. According to a composite of the credited
account of Griffith , Burns and Behrendt, the following
occurred: Griffith charged that the men had been
discharged for union activities and demanded their
immediate reinstatement . Burns denied the charge and
asserted that the discharges were motivated by business
considerations and were made on basis of percentages.
Following this , Burns read off a set of sales figures for the
period January 1 through May 31,1970.16 Griffith rejected
the report stating that an oral 5 months summary was of
little value. About this point, Griffith asked for a 60-day
probationary period for the men but the request was
denied . As the meeting was about to close, Griffith once
again requested that the Company imtiate bargaining
negotiations for a new contract and, in this regard , asked it
to furnish the Union with information concerning Buying
Service Deals, house deals and the sales records of all
salesmen including the number of cars sold , in each
instance , for the year prior to the discharge date.
2. Contentions and conclusions
The General Counsel contends that Respondent dis-
charged Behrendt because he was extensively active on
behalf of the Union . Conversely, Respondent maintains
that (1) there is no direct evidence that it had knowledge of
Behrendt's union activity ; (2) there is no evidence of union
animus; and (3) Behrendt was discharged for valid,
nondiscriminatory reasons.
In determining whether an employee was discriminatori-
ly discharged in violation of Section 8(a)(3) of the Act, it is
incumbent upon the General Counsel to establish the
employer's knowledge of union activity , union animus, and
the pretextual nature of the alleged legitimate reasons
advanced by the employer in justification of the discharge.
It definitely appears that, for many years, Behrendt has
been an ardent supporter of unionism . Thus, he sought in
early 1967 to stimulate employee interest in the Independ-
ent's organizing campaign by openly distributing union
authorization cards and campaign material among his
coworkers ; he was an observer for the Independent at the
Board election in May 1967 , a post usually assigned to an
active union adherent ; he picketed Respondent 's premises
at the time of the strike in 1968 and while so engaged was
approached by General Manager Neckrosh ; and he was
named in the Board's Order of March 1969 . During the
processing of the representation petition including the
election ; and during the investigation of the earlier charges,
the discussions that lead up to execution of the agreement
and stipulation, and the conferences held with respect to
compliance with the Board's Order, Respondent was
represented by Burns. Based on the foregoing, I find that,
prior to Behrendt's discharge on June 19 , Respondent had
knowledge of Behrendt's union activity through Burns and
Neckrosh. Respondent argues, however , that there is no
evidence that Frank , who made the actual decision to
discharge Behrendt, knew or even suspected Behrendt of
union activity prior to the discharge. The argument is
lacking in merit . As stated above , there was no change in
Respondent's corporate structure immediately preceding or
following Frank's accession to the post of general manager.
Consequently , as the Respondent was aware of Behrendt's
union interest through its agents, Bums and Neckrosh, it is
not necessary to show that another agent, Frank, also had
such knowledge . 17 Moreover, I am not persuaded that
Frank and the other conferees at the June 18 meeting were
unaware of Behrendt 's active union interest , Burns'
testimony to the contrary notwithstanding. Considering
that the Union had succeeded in getting Behrendt's draw
reinstated as a result of the charges filed in Cases
13-CA-8097 and 13-CA-8677, it seems more reasonable to
14 An unfair labor practice charge was filed by Zogg , or in his behalf,
but there is no indication in the record as to its status or disposition
15 Lee Burks
16 See G C Exh. 7
17 Owens-Corning Fiberglas Corporation, 146 NLRB 1492, 1497
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believe that Behrendt's interest in union representation had
increased not waned and that this was reported by Burns to
Ruby and Frank. Gratitude is a fruit of great cultivation
and it is not as yet extinct.
As to the evidence of union animus, it is sufficient that
the agreement and stipulation resulting in the entry of the
Board's Order in the earlier proceeding adequately
establishes Respondent's opposition to the self-organiza-
tional rights of its employees. Concluding therefore that
Respondent was fully aware of Behrendt's union activity at
the time of, his discharge and that it evidenced a union
animus, I turn to Respondent's contention that because of a
decline in sales it was obliged to reduce the size of its sales
force by three men and that it selected Behrendt for
discharge because he had one of the poorest sales records
for the period January through May 1970.
As already found, on June 18 Ruby summoned Frank,
Burns, and others to his office where he complained that
Southwest was losing money, threatened to close the
business, and told Frank to do whatever had to be done to
turn the place around. The discharges followed the next
day. Whether it was actually necessary to terminate three
salesmen is not a question for the Trial Examiner to decide.
Respondent was entitled, in the exercise of its business
judgment, to conclude that, in view of an unacceptable
sales picture, it was desirable, indeed imperative, to dismiss
Behrendt and the others. The issue here, as has often been
stated, is not whether an employer is justified in terminating
an employee for valid business or economic reasons, but
whether in reaching its decision, the employer was, in fact,
motivated by those reasons or by reasons proscribed by the
Act, that is to say, by the union activities of its employees
and its opposition to their self-organizational rights.
Frank testified that his decision to discharge Behrendt
was based solely on a consideration of figures which
showed percentages of commissions and salary to the
company's gross profit as reflected in Wollack's summary
(Resp. Exh. 1), that the summary indicated that Behrendt
was one of the lower producing but higher cost salesmen,
that in a close case such as that between Behrendt and
Braatsch he took into account the salesman 's potential, and
finally that Braatsch was selected for retention over
Behrendt because Frank concluded that Braatsch was on
his way up while Behrendt was on his way down.
Respondent offered evidence supporting the claimed
business or economic basis for the discharge which showed
[in part] the following monthly sales and earnings of the
individual salesmen: is
Summary through May 31, 1970
Used Used
Average New Sales %Comm 19/ Sales %Comm
Car Per Mo. Name Started to Gross P C to Gross
4.8 Behrendt 3/4/64 22 2 47 7 18
6.8 Braatsch 10/1/68 33 1 39 3 17
6.4 Busch 9/ /67 32 38 3 17
McLean20 4/7/70 7 20 4 54
3.2 Mason 2/24/69 16 59 6 18
Newsome 2/ /69 13 1 21 64 23
5.0 Ponziano 9/8/6921/ 19 6 49 11 18
11.2 Roozee 1/10/53 52 4 35 5 16
4.8 Zogg 3/30/64 24 44 1 36
According to Wollack, there is a logical correlation
between percentage of commissions to gross profit and
average new-car sales because salesmen with lower
percentages usually have higher average new-car sales per
month. In the company's view, salesmen with high
percentages were the most costly to maintain.
While this summary shows that Behrendt's percentage of
commissions and salary to gross profit in new-car sales was
the third highest of all salesmen (but lower than Ponziano's
who was retained) in the period in question no explanation
was offered as to why this 5-month period was selected as
/" Resp Exh 1
19 A ratio of salary and commissions to gross profit
20 Left Respondent's employ June 15, 1970
the basis for determining sales performance. Considering
that Behrendt had been employed for more than 6 years
and that he was senior to any employee retained, excluding
Roozee, the selection of the 5-month period appears
unreasonable, if not arbitrary.
To counter the thrust of the Wollack report, the General
Counsel introduced through Burns a copy of Burns' notes
of the June 26 meeting.22 The notes reflect a summary of
comparative records of sales for the same period January
through May 1970 and, in pertinent part, reveal the
following:
Si Based on a representation of Respondent's counsel at the hearing
22 G.C Exh. 7.
SOUTHWEST CHEVROLET CORP. 981
Name New Used
Newsome 14 64
Roozee 56 5
Braatsch 34 3
Ponziano 25 11
Busch 32 3
Behrendt 24 7
Zogg 24 1
Mason 16 6
McLean 7 4
An analysis of the figures in this summary demonstrates
that, as of May 31, Behrendt's showing in percentage of
commissions and salary to gross profit was better than
Braatsch's. More specifically, Behrendt's percentage was
1.4 percent lower than Braatsch's and only .3 of 1 percent
higher than Busch's.
As stated above, Frank testified that his decision to
discharge Behrendt was based solely on the information in
Respondent's Exhibit 1. He added later that he did not rely
on the information in General Counsel's Exhibit 7. Burns
recounted, however, that his notes reflect data mailed to
him by someone at Southwest and that he had "assumed"
the information was sent by Frank. Asked to explain if
possible the discrepancies in the percentages he gave the
Union at the June 26 meeting to justify the discharges and
those in Respondent Exhibit 1 which Frank asserted were
the basis for his decision to discharge, Burns testified that
he "believed" the percentages in his notes represent a
"compilation," 23 of Columns 8 and 15 in Respondent's
Exhibit 1. While it is true that the figures in the column
labelled "new" in General Counsel's Exhibit 7 accurately
reflect a combination of the figures under a like designation
in Respondent Exhibit 1, this is not the case with respect to
the figures in the percentage column in General Counsel's
Exhibit 7. Thus, a compilation or gathering together of
Behrendt's percentages of new (47) and used (18) car sales
(Columns 8 and 15 in Resp. Exh. 1) does not add up to 34.6,
as shown in General Counsel's Exhibit 7, but to 65.
Be that as it may, it is evident that Behrendt's showing
was not as dismal as Respondent now seeks to portray.
Applying another yardstick to measure Behrendt' s sales
performance, Burns' notes prepared at the June 18 meeting
with Ruby disclose that, in calendar year 1969, Behrendt
sold on an average 3.3 more cars per month than were sold
by Braatsch and, in addition, that his percentage of
commissions to gross was better than Braatsch's.24
Moreover, between June 1 and 18, 1970, Behrendt sold and
delivered 10 cars, an additional car was delivered on or
about June 20.25 By contrast, Braatsch was credited with
only four sales for the entire month of June 26
When there is considered, in addition to the foregoing,
the fact that New-Car Manager Kiley applauded Beh-
rendt's sales record as late as 5 months before the discharge
and the fact that Behrendt had never been warned about
any deficiency in his- sales performance, it becomes readily
Total % Commission to Gross
78 22.7 %
61 32.9
37 36.0
36 33.9
35 34.3
31 34.6
25 43.5
22 44.2
11 36.9
apparent that Respondent deliberately utilized the relative-
ly short period of time before the discharge to place
Behrendt in an unfavorable light so as to justify his
dismissal . The fact that the discharge was made shortly
after Frank became sales manager and followed on the
heels of Ruby's direction "to turn the place around" does
not explain why Respondent did not take into account
Behrendt's sales performance over the entire period of his
employment. Frank sought to justify Braatsch's retention
over Behrendt by testifying that Braatsch was a younger
man, had just entered the business, and was "hungry
enough to want to sell." Conversely, accordingly to Frank,
who had only been general manager 5 days at the time he
made the decision to discharge, Behrendt had not
developed a clientele or followed up on what few clients he
had. The reasons Respondent assigns for the preference
accorded Braatsch do not bear scrutiny. Behrendt's 1969
record of average sales per month and percentage of
commissions and salary to gross profit was far better than
that of Braatsch in the same period. Yet, despite Kiley's
testimonial and Behrendt's proven record, Respondent
chose to retain over him a junior salesman with the lame
explanation that Braatsch had a greater potential. Respon-
dent's confidence in Braatsch appears to have been
misplaced, however, because on November 30, 1970, he was
discharged by Frank.
Significant too are the circumstances surrounding the
discharge and the incongruities inherent in Respondent's
defense which themselves tended to support the General
Counsel's contention that union activities constituted the
motive for the discharge. Thus, the discharge was made
precipitately, without notice or warning, and before the end
of the sales month. In sum the evidence as a whole,
including the weaknesses in Respondent's defense, fully
establishes the existence of a discriminatory motive in the
discharge of Behrendt.
I therefore conclude and find, on the basis of the
foregoing and the entire record, that the reasons Respon-
dent advanced for the discharge of Behrendt were mere
pretexts which it seized upon for the purpose of eliminating
a known supporter of union activity among its salesmen. I
further find that by such conduct Respondent violated
Section 8(a)(3) and (1) of the Act.
23 The word was suggested by the General Counsel in his examination
of the witness.
24 Resp Exh 2.
25 Frank testified that he saw no need to consider the June 1 -15 sales
figures.
26 G.C Exh 19.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Refusal To Bargain
1. The bargaining sessions and intervening
events27
It is admitted that only two bargaining sessions were held
in the period with which we are generally concerned-the
first on July 2, the second on August 18.
a. The session on July 2
A synthesis of the testimony of Griffith who attended this
session in behalf of the Union and Bums who attended in
behalf of the Respondent establishes that they met in
Burns' office the morning of July 2, 1970, and that the
following. occurred: After the parties assembled, the old
contract was reviewed and both sides made proposals in
what was generally agreed to have been an exploratory
discussion. For its part, the Union proposed an increase in
commissions (5 percent) and base pay (from $50 to $75 per
week) and also that vacations be computed "on the average
weekly pay." The company, in turn, proposed a 45-hour
workweek or an increase in the workweek of about 8 hours.
At some point, Griffith renewed, in essence, his earlier
requests for information, this time for the purpose of
assisting the Union in formulating contract proposals. The
information sought was as follows: (1) sales records of all
salesmen employed by the Respondent during the year
preceding July 1, 1970, showing, among other things, gross
commissions, gross profits, and costs; (2) a seniority list of
all salesmen ; and (3) records of all Buying Service Deals 28
and house deals 29 As before, the information was not
provided. In the end, Griffith told Burns that he desired to
meet again with Southwest and at the earliest possible date.
Respondent's representatives agreed to consider the
Union's proposals and to contact the Union about a new
date.
b. Intervening events
After the July 2 session and throughout the month of
July, Griffith made numerous requests for another
bargaining session and, on such occasions, Bums invariably
advised that it was difficult to arrange another meeting
because the new management at Southwest was having
problems "in getting its feet on the ground."
Griffith was away on vacation from August 1 through 16;
Bums was away the last 2 weeks in August. Before leaving,
however, Griffith informed Burns of his departure by letter
and suggested therein that the Respondent meet with
Golden or Sergott, Griffin's associates. The request was
repeated verbally to Burks, Burns' assistant, who responded
that the Company preferred to negotiate with Griffith.
As reported above, on September 2 the instant charge
was filed. Eight days later, on September 10, S. W. Busch
filed a decertification petition with the Regional Director
27 In major part, the evidence in this section is not in substantial
conflict. Where there is conflict as to any relevant fact, the Trial Examiner
will set forth his resolution of the credibility issue.
28 An arrangement between a dealer and a buying service under which
the former pays commissions to the latter for customers referred Griffith
wanted this information to see whether salesmen were getting credit for
for Region 13 seeking an election among the Employer's
salesmen 30 The petition was dismissed on December 29.
After Burns returned from vacation, Griffith resumed his
pursuit of the elusive bargaining session. Thus, on
innumerable occasions between September 1 and Novem-
ber 17 when Griffith encountered Burns at meetings
involving other dealers, he implored Burns to meet again on
Southwest. To such appeals, Burns variously responded
that "I'm trying to get them together," he was "having
trouble getting his dates arranged with this management at
Southwest," or "I'll get back to you and I'll do the best I
can." At one time, Burns agreed to meet with the Union on
September 30 but, 1 or 2 days prior thereto, canceled the
meeting.
c. The session on November 18
This session was attended for Respondent by Burns and
Frank. In attendance for the Union was Griffith. Accord-
ing to a composite of such testimony of Griffith and Burns
as I credit , they met in Bums' office and the following
occurred: The parties began to negotiate but shortly
thereafter Burns declared "we don't think you have a
majority in Southwest Chevrolet." Burns went on to say
that "some employees out there [have] filed for certifica-
tion" and advised that, while the Company was meeting
with the Union, it entertained a doubt as to whether it
represented a majority. Griffith testified credibly that this
was the first time the Company had ever questioned the
Union's majority. According to Burns, however, about 1
week after the petition was filed, or on or about September
17, he told Griffith that the Company would not negotiate
further with the Union because the petition had raised a
question as to whether it represented a majority of
Southwest's salesmen . I do not credit this testimony of
Burns for reasons explicated below.
During the course of the November 18 session and at
subsequent bargaining sessions on November 30 and
December 7, Respondent provided the Union with some of
the information it had requested at the June 26 and July 2
meetings and on other occasions. Thus, Griffith testified
that he received charts which showed the number of cars
sold by salesmen and their monthly earnings in the period
covered by the requests. There is no evidence, however, that
the Respondent furnished the Union with information
concerning Buying Service Deals or house deals or with a
seniority list for the period sought.
At some point during the November 18 meeting or at one
of the later meetings, Griffith observed that Busch's name
had been dropped from the Company's pay chart and
inquired as to his status. According to Griffith a witness for
the General Counsel, Burns replied that Busch had "left"
and "went to work for Empire Chevrolet." Griffith
protested the failure of the Company to give the Union
notice of Busch's departure allegedly as required by "the
prior contract."
such sales and whether they were being distributed evenly among all
salesmen . (See sec 11, art. XIV of the July 1, 1969 , contract).
29 These deals are normally made by management personnel . Griffith
sought the records to determine whether to propose , as part of the Union's
pay plan, that salesmen share in the house deals.
20 Case 13-RD-787.
SOUTHWEST CHEVROLET CORP. 983
2. The allegations of refusal to bargain and
conclusions thereon
a. The appropriate unit
The complaint, as amended, alleges, Respondent's
answer admits , and I find, that all automobile salesmen
employed at Respondent's Chicago, Illinois, location,
excluding office and plant clericals, automobile mechanics,
parts department employees, employees who are members
of other labor organizations , guards, and supervisors as
defined in the Act, constitute an appropriate unit for the
purposes of collective bargaining with the meaning of
Section 9(b) of the Act.
b. The majority status of the Union
The complaint also alleges, the answer further admits,
and I find, that on or about May 23, 1967, a majority of the
employees in the above-described unit designated and
selected International Vehicle Salesmen's Union of Ameri-
ca (Independent) as their representative for the purposes of
collective bargaining; and, that on or about June 17, 1968
the Independent affiliated with American Federation of
Professional Salesmen and thereafter became known as
International Vehicle Salesmen's Union of America
affiliated with American Federation of Professional
Salesmen.
c. Analysis and conclusions
The General Counsel contends, as alleged in the
complaint, as amended, that the Respondent failed and
refused to bargain in good-faith with the Union in that (1)
since April 23, 1970, and continuing to on or about
November 17, 1970, it had refused to negotiate and discuss
with the Union matters relating to wages, hours of
employment, rates of pay, and other terms and conditions
of employment, or to meet with the Union at reasonable
times and places to negotiate and discuss the matters
referred to above; (2) on or about June 20, 1970, and
continuing to on or about November 17, it had refused to
furnish the Union with requested information relating to
Buying Service Deals, sales records of salesmen, the
number of cars sold and by whom, a seniority list of the
unit employees, and other related information ; (3) on or
about September 10, it transferred salesman Stuart Busch
to Empire Chevrolet without notice to the Union, without
consultation and bargaining with the Union, and without
having received the Union 's consent or acceptance.
Respondent , in turn, admits (3), but denies (1) and (2).
As to (1), I first take note of the earlier proceeding
involving the Respondent wherein, pursuant to an Agree-
ment and Stipulation, the Board on March 25, 1969,
directed inter alia that Respondent, upon request, meet and
bargain collectively with the Independent as the exclusive
representative of the unit employees "with reasonable
frequency and diligence and at reasonable times and
places. . ." and that, upon request, it furnish the Independ-
ent with such "information as is reasonable necessary to
negotiate for, or administer , a collective-bargaining
agreement." 31
The Union's letters of April 23 and May 8 contained
unambiguous requests that Respondent "negotiate con-
cerning a new contract" and statements that its negotiating
committee "desires to meet with the [Company ] as soon as
possible to commence negotiations ." Thus, the letters
presented definite requests for bargaining and were
sufficient to require Respondent, in compliance with its
statutory duty, to meet with the Union.
It is apparent from the record in this proceeding that
Respondent did not reply in any meaningful manner to the
Union's requests until July 2 when the first bargaining
session was held. The only other bargaining session in the
relevant period was conducted on November 18. It also
appears that a meeting scheduled for September 30 was
canceled by the Respondent 1 or 2 days prior thereto.
Respondent seeks to explain the extended periods of
delay during which it provided the Union with no
opportunity for bargaining meetings by pointing to various
circumstances which , in its view, excused it from the duty to
bargain. In the main , Respondents relies on the following
facts: in the interval between the dispatch of the Union's
initial request on April 23 and the first bargaining session
on July 2 Burns explained to Griffith that he was trying to
get his people together but found it difficult to coordinate
his schedule with that of his client 's; the fact that in June
both the management and sales force at Southwest were
overhauled ; the fact that in July Burns was concerned with
negotiations involving other employers and, in addition,
was faced with a new management at Southwest ; the fact
that in August the principal negotiators for both sides were
on vacation ; the fact that in September , following the filing
of the decertification petition , Burns told Griffith that he
had a good-faith doubt about the Union's majority; and
finally the fact that prior to the dismissal of the petition the
Respondent resumed negotiations with the Union.
I cannot agree that the record evidence establishes that,
during the period April 23 through November 17,
Respondent was relieved of its bargaining obligation. The
statute imposes upon ' an employer-here Southwest
Chevrolet Corporation-the duty to bargain with a union
lawfully chosen by its employees. This duty implies that
when confronted with valid union requests for collective
bargaining concerning working conditions , the employer
proceed with reasonable dispatch to meet and negotiate
upon these subjects. Thus, it will not do for the Respondent
to argue that because Burns was preoccupied with other
matters and had difficulty sychronizing his schedule, first
with the schedule of the old management and later with
that of the new management , it, the Respondent stands
innocent of a charge of having evaded its statutory duty.
Respondent made Burns its agent , but ^t cannot by that act
alone divest itself of its ' own legal obligation . It is well
settled that it is the employer who must meet with the union
and negotiate in good faith. If he chooses to have an agent
act in his place , he nevertheless remains responsible to see
that the agent fulfills all of the requirements under the
statute. But, however, an employer elects to proceed, it
must meet with the union at reasonable times and fairly
31 Cases 13-CA-8097 and 13-CA-8677
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consider and discuss proposals advanced. Even allowing
for a hiatus in August when the main negotiators for both
sides were away on vacations, it is abundantly clear from
the totality of Respondent's conduct that it has failed to
discharge its duty under the statute. Considering now the
contention that the Respondent was relieved of the
obligation to meet with the Union after September 10
because of the pendency of the decertification petition. To
begin with, the filing of a petition does not alone suspend
the duty to bargain absent evidence of a good-faith doubt
of majority. See Dayton Town and Country Furniture Shop,
Inc., 172 NLRB No. 103. Secondly, I have previously
credited testimony of Griffith to the effect that Respondent
first raised a question of the Union's majority at the
November 18 bargaining session. However, accepting for
the moment Burns' contrary version and assuming Burns
told Griffith on or about September 17 that Respondent
was withdrawing recognition of the Union and terminating
negotiations because the filing of the petition had raised a
doubt in Burns' mind as to the Union's representative
status, the fact is that the only showing of doubt appears in
Burns' assertion unsupported by evidence of objective facts
sufficient to constitute a reasonable basis for the belief.32
Additionally, I note that the Respondent resumed bargain-
ing with the Union while the petition was still pending.
Such conduct was plainly inconsistent with the claim of
doubt of majority representation. The contention is totally
devoid of merit and it is so found.
Upon consideration of the previously recited facts and
the,entire record, I conclude, and find, that Respondent did
not, at any time within the period involved in this case,
possess a genuine intention to meet and engage in
meaningful collective-bargaining negotiations with the
Union. I therefore conclude, and find further, that
Respondent by refusing, since April 23, 1970, and
continuing to November 17, 1970, to meet and bargain with
the Union in good faith for the purpose of negotiating an
agreement covering the terms and conditions of employ-
ment of employees in the appropriate unit has violated
Section 8(a)(5) and (1) of the Act.
As to (2), the General Counsel argues that the evidence
establishes that the information sought by the Union was
relevant and necessary for the proper prosecution of
employee grievances, that is now relevant and necessary to
enable the Uniori to formulate reasonable contract
proposals, and that Respondent's failure to comply with the
Union's requests within a reasonable penod constitutes a
breach of its bargaining obligation violative of Section
8(a)(5) and (1) of the Act. Respondent, on the other hand,
takes the position that the delay in providing the requested
information did not interfere with the bargaining pace as
the principal negotiators for both sides were, at one time or
another, actively engaged in bargaining sessions with other
employers or on vacations. Moreover, Respondent argues
32 Laystrom Manufacturing Co, 151 NLRB 1482, 1483-84; Celanese
Corporation of America, 95 NLRB 664, 672-673
33 N L.R B v Acme Industrial Co., 385 U.S. 432,435-436; N LR B v.
Truitt Mfg Co, 351 U.S. 149; The Prudential Insurance Company of
America v NLR B, 412 F.2d 77, 81 (C.A. 2); The Timken Roller Bearing
Company v N LR.B., 325 F.2d 746, 750 (C.A. 6), cert . denied 376 U S. 971;
Whitin Machine Works, 108 NLRB 1537, 1538, enfd. 217 F.2d 593 (C A. 4),
cert. denied 349 U.S 905.
that it was "exonerated" from its duty to bargain and
consequently to furnish the requested information by the
filing of the decertification petition. The argument
advanced here by the Respondent is essentially the same as
that presented and considered above in connection with the
refusal to meet and bargain allegation and, for the reasons
previously given, I find it lacking in merit.
It is now settled law that the duty to bargain in good faith
imposed upon an employer by Section 8(a)(5) of the Act
includes the obligation to provide the employees' represent-
ative with information relevant and necessary to the
intelligent performance of its function as bargaining
agent.33 Since "the duty to bargain," as the Supreme Court
has observed, "unquestionably extends beyond the period
of contract negotiations and applies to labor management
relations during the term of an agreement," 34 the
employer's obligation to furnish information extends with
equal force to material needed by the Union for the
effective administration of an existing contract and for the
processing of grievances thereunder. Certainly, the prod-
uction of relevant information with respect to a grievance
serves the additional worthwhile purpose of enabling the
bargaining representative to evaluate prudently the merits
of asserted claims with the view of deciding whether to
pursue or drop them altogether. And; of course, an
employer is also required by statute to make available,
upon request, wage and related information where, as here,
it is sought in connection with the negotiation of a new
contract 35
Turning now to the specific material requested by the
Union, Respondent as indicated above, made available to
the Union at the November 18 meeting and sometime later
charts showing the number of cars sold by salesmen and
their monthly earnings in the past calendar year. This
information had been requested in June and no plausible
explanation has been offered by the Respondent for the 4
months delay (excluding August) in furnishing the
information. Accordingly, I find that the delay in
transmitting such data was unreasonable and therefore
violative of Section 8(a)(5) and (1) of the Act.
This leaves for determination requested information
pertaining to a seniority list,36 Buying Service Deals and
house deals sought by the Union in connection with the
negotiation of -a new contract. Data concerning Buying
Service Deals and house deals was also requested to assist
the Union in prosecuting certain employee grievances.
With respect to the grievances, I find that Respondent
defaulted in its bargaining obligation in failing to provide
the Union with information about the Buying Service
Deals. Manifestly, this information would have enabled the
Union to determine whether credit for such sales was
evenly distributed among all salesmen and thereby to
intelligently check and evaluate the standards Respondent
allegedly employed in selecting the employees for dis-
34 N.LR B. v. Acme, supra, 436.
35 N LR.B. v Yawman & Erbe Manufacturing Co., 187 F.2d 947, 949
(CA. 2), The Timken Roller Bearing Company v N.LR.B., supra, Cowles
Communications, Inc, 172 NLRB No. 204
36 A seniority list was assembled at the hearing for the penod January
through May 1970 but this falls far short of full compliance with the
Union's request.
SOUTHWEST CHEVROLET CORP. 985
charge. Moreover, as the exclusive representative of
Respondent's employees, the Union has a real interest and,
indeed, the statutory duty to see that its members are
treated fairly, justly, and without discrimination.37 There-
fore, to assure itself that Behrendt and the others were
accorded fair and equal treatment, particularly in light of
the fact that Behrendt had been named in the Board's
Order in the earlier proceeding, the Union needed the
information in dispute to determine the merits of the
grievances. Accordingly, I find that Respondent's refusal to
furnish such data constituted a breach of its bargaining
obligation violative of Section 8(a)(5) and (1) of the Act.
A different conclusion, however, is reached with respect
to the house deals as it appears that this information was
sought only for use in connection with the Union's pay
plan. Accordingly, as the General Counsel has failed to
demonstrate the relevance of the data to the employees'
grievances, I find that the Respondent's refusal to furnish
the information for that purpose does not constitute a
breach of its bargaining obligation.
Lastly, I find that the Union is entitled to a seniority list
and to information concerning Buying Service Deals and
house deals 38 requested by it for use in connection with the
negotiation of a new contract. Clearly, such information
will assist the Union in formulating new or modified wage
proposals 39 Accordingly, I find that the Respondent
breached its bargaining obligation by failing to provide the
Union with such data. I find further that, by this conduct,
Respondent has violated Section 8(a)(5) and (1) of the Act.
As to (3), contrary to the General Counsel, this is no
warrant for concluding that Respondent manifested a lack
of good faith by unilaterally transferring Busch to Empire
Chevrolet in October 1970. Griffith protested the action at
the November 18 meeting, or sometime thereafter, allegedly
because the expired contract required the Respondent to
consult with the Union before transferring bargaining unit
employees. A reference to the contract, however, reveals
that it contains no such requirement. Quite the contrary is
true for section 2, article X, therein states:
When not contrary to the terms of this Agreement, the
Company reserves the right to establish and require
employees to observe Company rules and regulations;
to hire, promote, layoff, transfer or relieve employees
from duties; and to maintain order and to suspend,
demote, discipline and discharge employees.
And, of course, if Busch voluntarily terminated his
employment with Southwest, as appears to have been the
case from Griffith's testimony, we are presented with an a
fortiori situation40 In either event, it is evident, and I find,
that the Respondent has not defaulted in its bargaining
duty as alleged in this specification.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent as described in section I, above, have a close,
mtimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5), (3),
and (1) of the Act, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action,
described below, which I find to be necessary to remedy
and remove the effects of the unfair labor practices and to
effectuate the policies of the Act. For the reasons stated in
Consolidated Industries Inc., 108 NLRB 60, 61, footnote 3,
and the cases cited therein, I shall also recommend a broad
cease-and-desist order.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Vehicle Salesmen's Union of America
(Independent) and American Federation of Professional
Salesmen are labor organizations within the meaning of
Section 2(5) of the Act.
3. By discharging Edward Behrendt, on June 19, 1970,
and thereafter failing and refusing to reinstate him because
of his union membership and activity Respondent has
discriminatorily discharged said employee to discourage
membership in a labor organization, thereby engaging in
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All automobile salesmen employed by Respondent at
its Chicago, Illinois, location, excluding office and plant
clericals, automobile mechanics, parts department
employees, employees who are members of other labor
organizations, guards, and supervisors as defined in the
Act.
5. At all times since May 23, 1967, International Vehicle
Salesmen's Union of America (Independent) has been the
recognized statutory representative of all employees in said
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
6. On or about June 17, 1968, International Vehicle
Salesmen's Union of America (Independent) affiliated with
American Federation of Professional Salesmen and
thereafter became known as International Vehicle Sales-
men's Union of America affiliated with American Federa-
tion of Professional Salesmen, the Union herein.
37 See, for example, Miranda Fuel Company, Inc, 140 NLRB 181,
enforcement denied 326 F.2d 172 (CA. 2); Local Union No. 12, United
Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, 150
NLRB 312, enfd 368 F.2d 12 (C.A. 5), cert. denied 389 U.S. 837
38 Not specifically alleged but litigated See Monroe Feed Store, 112
NLRB 1336, 1337.
39 NLRB v. Yawman & Erbe Manufacturing Co., supra, Cowles
Communications, Inc, supra.
40 It would appear unnecessary to assert at this late date but the
unblinking fact is that Busch has an absolute right to terminate his
employment at will without the consent , acceptance or approval of a union
or an employer, individually or collectively. U.S. Const. amend. XIII, § 1.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. By refusing, since on or about April 23, 1970, and
continuing to on or about November 17, 1970, to bargain
collectively in good faith with the Union as the exclusive
bargaining representative of the employees of Respondent
in the appropriate unit, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
8. By unreasonably delaying in providing the Union
with relevant information concerning the sales records of
its salesmen and by refusing to furnish the Union with
relevant information concerning Buying Service Deals
requested by the Union for use in connection with the
prosecution of employee grievances, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
9. By refusing to furnish the Union, pursuant to its
request, with relevant information concerning Buying
Service Deals and house deals and to provide it with a
seniority list of the unit employees for use in contract
negotiations, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
10. By the aforesaid conduct Respondent has interfered
with, restrained, and coerced, and is interfering with,
restraining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, and has thereby
engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a)(1) of the Act.
11. Respondent has not violated Section 8(a)(5) of the
Act in any respect not herein found.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 41
ORDER
Respondent, Southwest Chevrolet Corporation, Chicago,
Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Vehicle
Salesmen's Union of America affiliated with American
Federation of Professional Salesmen, or in any other labor
organization, by discharging employees because of their
union membership or activities or in any other manner
discriminating against them in regard to hire or tenure of
employment or any term or condition of employment.
(b) Refusing to bargain collectively in good-faith
concerning rates of pay, wages, hours of employment, or
other conditions of employment with the above-named
Union as the exclusive bargaining representative of its
employees in the following appropriate unit:
All automobile salesmen employed by Respondent at
its Chicago, Illinois, location, excluding office and plant
clericals, automobile mechanics, parts department
employees, employees who are members of other labor
organizations, guards, and supervisors as defined in the
Act.
(c) Delaying in furnishing the above-named Union with
certain relevant information and refusing to furnish other
such information requested by the Union for use in
connection with the prosecution of employee grievances.
(d) Refusing to furnish the above-named Union with
relevant information requested by the Union for use in
contract negotiations or which is reasonably necessary for
the intelligent performance of its bargaining function.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
International Vehicle Salesmen's Union of America
affiliated with American Federation of Professional
Salesmen, or any other labor organization, to bargain
collectively through representatives of their own choosing,
or to engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities except to the extent
authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:-
(a) Offer to Edward Behrendt immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him by
payment to him of a sum of money equal to that which he
would have earned from the date of his discharge to the
date of the offer of reinstatement, less his net earnings
during said period, said backpay to be computed on a
quarterly basis in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289, together with
interest thereon at the rate of 6 percent per annum. Isis
Plumbing & Heating Company, 130 NLRB 716.
(b) Notify Edward Behrendt, if he is presently serving in
the Armed Forces of the United States, of his right to full
reinstatement, upon application after discharge from the
Armed Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and compute the amount of backpay
due under the terms of this recommended Order.
(d) Upon request, bargain collectively with International
Vehicle Salesmen's Union of America affiliated with
American Federation of Professional Salesmen as the
exclusive bargaining representative of all employees in the
aforesaid appropriate unit and embody in a signed
agreement any understanding reached.
(e) Upon request, meet and bargain collectively with
above-named Union with promptness and frequency
concerning the negotiation of a contract.
(f) Promptly furnish the above-named Union with
updated information concerning Buying Service Deals
previously requested by the Union for use in connection
with the prosecution of employee grievances.
(g) Promptly furnish the above-named Union with
41 In the event no exceptions are filed as provided by Sec 102.46 of the Sec 102 48 of the Rules and Regulations, be adopted by the Board and
Rules and Regulations of the National Labor Relations Board, the become its findings , conclusions, and Order, and all objections thereto
findings, conclusions, and recommended Order herein shall, as provided in shall be deemed waived for all purposes.
SOUTHWEST CHEVROLET CORP.
updated information concerning Buying Service Deals and
house deals and provide it with a current seniority list of the
unit employees all previously requested by the Union for
use in contract negotiations.
(h) Post at its facility in Chicago, Illinois, copies of the
attached notice marked "Appendix A."42 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by the Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
42 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
987
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(i) Notify the Regional Director for Region 13, in writing,
within 20 days from the receipt of this Decision, what steps
the Respondent has taken to comply herewith.43
IT IS FURTHER ORDERED that the complaint be, and the
same hereby is, dismissed insofar as it alleges violations of
the Act not specifically found herein.
43 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 13 , in writing, within 20 days
from the date of this Order , what steps the Respondent has taken to
comply herewith "