Suburban AMC/Jeep, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 454 (N.L.R.B. 1974)

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Suburban AMC/Jeep, Inc.' and John L. Boyle. Case
17-CA-5755
June 12, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On January 31, 1974, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
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 Administrative Law Judge and
hereby orders that Respondent, Surburban
AMC/Jeep, Inc., Raytown, Missouri, its officers,
agents, successors , and assigns, shall take the action
set forth in the said recommended Order.
i The name of the Respondent appears as amended at the hearing.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C A. 3, 1951). We have carefully
examined the record and find no basis for reversing her findings
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: This is a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (29 U.S.C. 151, et seq.)
hereinafter referred to as the Act. Based on charges filed
on September 6 and amended October 16, 1973,1 a
complaint issued on October 26, amended October 29,
presenting allegations that Suburban AMC/Jeep, Inc.,2
hereinafter referred to as the Respondent, committed
unfair labor practices within the meaning of Sections
8(a)(1) and 2(6) and (7) of the Act. The Respondent filed
i Unless otherwise indicated all dates are in 1973.
2 The name of the Employer appears as amended at the hearing
At the hearing the General Counsel stipulated to the deletion of the
name of John Ferrell , from sec. 3 of the complaint and the Respondent
an answer denying that it committed the violations of the
Act alleged .3 Upon due notice the case was tried before me
at Kansas City, Kansas, on November 29. Representatives
of all parties were present and participated in the hearing.
Based on the entire- record, including my observation of
witnesses , and after due consideration of briefs, I make the
following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent , a Delaware corporation with its principal
offices and place of business located in Raytown, Missouri,
is engaged in the operation of an automobile dealership
involving the retail sale and service of new cars. In the
conduct of this business operation , the Respondent 's gross
volume exceeds $500,000 per annum, in the course of
which Respondent annually purchases goods and services
having a value in excess of $50 ,000 directly from firms or
sources located outside the State of Missouri.
I find that Respondent is now and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether employees ceased work and/or engaged in
a walkout.
2. Whether they were constructively discharged for
engaging in protected concerted activity.
3. Whether Respondent threatened employees with
reprisals including discharge and blacklisting for engaging
in concerted activity ; refused reinstatement to an employee
because of his part in the concerted activity; and/or
conditioned reinstatement upon agreement to refrain from
engaging in concerted activity.
B. Background
It was Respondent's practice to deduct from the pay of
any employee who had an accident involving a customer's
vehicle and/or Respondent's property the cost of any
damages up to the amount of the deductable on Respon-
dent's liability insurance coverage. This practice came to
the specific attention of the mechanics and bodyshop
employees when, after such an accident damaging both
company and customer property, bodyman Steve Outlaw
complained to fellow employees about the deductions
being made from his paychecks. As a result of these
discussions among the shop employees, mechanic John L.
Boyle was designated their spokesman to arrange a
meeting and raise the matter with management. On August
amended its answer to admit the allegations of secs . 1, 2, and 3 of the
complaint with the deletion. The complaint was further amended to add the
allegation that Respondent violated Sec . 8(ax1) by threatening to blacklist
an employee because of his participation in concerted activity.
211 NLRB No. 52
SUBURBAN AMC/JEEP 455
1, Boyle, with the approval of Service Manager Bill J.
Patrick, arranged for a meeting4 between employees and
Respondent's president, Ernest Yanta.
At the meeting held in Yanta's office, employees present
were invited individually, either by Yanta or Boyle, to state
their grievances. Robert Calton spoke first and, in turn,
each employee present voiced his objections to this
practice of charging the insurance deductable to the
employee involved in the accident. When Yanta told the
men he would discuss the matter with the AMC zone
manager and let them know the results in a few days,
employees objected , insisting that they receive a prompt
answer in view of the ever present danger of their incurring
such a liability in the interim. Yanta then promised to have
an answer later that day.
Employees returned to the shop and, after a short period,
were again summoned to Yanta's office. Yanta was not
present. Management was represented by Patrick and
Corporate Secretary-Treasurer Deloris A. Souders. Em-
ployees were advised that the Company would establish a
fund to pay for the losses formerly borne by the employee
involved in an accident, unless there was negligence, either
attributed to the employee by Patrick or presumed after
three such accidents, in which event the employee would
be charged as before. With respect to deductions previous-
ly withheld from employees' pay for this purpose, it was
specifically stated that the money would be refunded to
Robert Calton and Royce Allen immediately. Employees
understood that, because the amount involved was
substantial , Steve Outlaw would have to be reimbursed on
an installment basis until money had accumulated in the
fund.5 Nobody mentioned employees Mike Patrick or Les
Rowe who also had been charged for accidents, but who
were in different job classifications from those of the
employees present at the meetings
III. THE CONDUCT INVOLVED
On Thursday morning, August 16, Rowe came to Outlaw
and reported that Yanta said they were not going to receive
a refund of accident money which had been withheld from
their pay. Outlaw, Rowe, and Mike Patrick went to see
Yanta and asked him for the reason. His reply was "the
plan was for, from that day forward, and if you don't like it
you can lump it " Their reports of this encounter brought
about further discussions among employees, some of
whom felt that Yanta had reneged on their agreement. At
the coffeebreak, the men gathered in Boyle's "stall," where
they discussed what they should do about this latest
development. They decided upon another meeting with
Yanta 7 and one was later arranged by Calton through
Yanta's secretary.8
Word was then spread among employees that the
meeting would be at 1:30 that afternoon. No one of the
employees was designated as spokesman for the meeting.
Again there were repeated messages of delay, and the men
began getting upset. In view of these delays, somebody
suggested that they should all quit work and wait for the
meeting. There is no indication who made this suggestion
or to whom it was made. However, as some of the men
finished the job assignment being performed, they locked
up their tools and waited for the meeting.9 Around 3:30 the
men were notified that Yanta would see them.
The men entered Yanta's office and sat down. Yanta
4 The testimony of the employees indicates that , although the meeting
was scheduled for 2 p.m., because of Mr. Yanta's preoccupation with other
meetings , Patrick periodically relayed to the men messages of delay until
about 3 :30 when the meeting was actually held. In this respect, Patrick
testified he repeatedly attempted to "set up" such meeting, but because
Yanta was still in another meeting he came back to the shop to tell the men
he would keep trying , and that he went a second and a third time to the
office until he finally succeeded . As I credit Boyle's testimony that he
arranged the meeting , I interpret Patrick's testimony as having reference to
the delay in its convening . In any event, it appears that some of the
employees were of the impression that they were not being accorded
appropriate consideration.
5 Credited testimony indicates that Outlaw replied it was alright with
him to receive his money in the manner the Company deducted it from his
check , i.e., $25 at a time.
Patrick testified that when Outlaw asked about his refund, Patrick asked
Souders, who said "we'll have to build up a fund ." Patrick then told Outlaw
that he could not answer Outlaw because the matter would have to be taken
up at a later date . Patrick explained that as far as he was concerned he was
talking about "from this day forward" and did not promise Outlaw a
refund , but he did not rule out the possibility that Outlaw would be paid
back the money deducted because he did not have that authority. Souders,
on the other hand , testified that when Outlaw asked about his money "we
told him that that would have to be discussed at a later date. That decision
would have to be made by Mr . Yanta ." Yanta testified that they did agree
to repay Calton and Allen immediately but had not agreed to reimburse
Outlaw . However, it is noted that Yanta did not attend that part of the
meeting in which employees received management 's reply to their grievance
presentation , and therefore could not testify as to what employees were told.
Patrick 's "from this day forward" limitation is consistent with what
Yanta told employees Outlaw, Mike Patrick , and Rowe on August 16 and
with the notice posted at the timeclock on August 17, but is inconsistent
with the immediate reimbursement of Calton and Allen which , admittedly,
was not only agreed to but was accomplished before the events of August
16. Similarly Souders' testimony that employees were told the decision on
Outlaw's entitlement to a refund would have to be made by Yanta-testi-
mony which is not corroborated by any other witness-is inconsistent with
the events that followed and the record evidence generally . In this respect, I
deem it significant that it was Outlaw's complaints that brought about much
of the discussions among the employees and the resulting meeting with
management . The proposal was presented as one which management
believed was a solution to the problem the employees had raised. Such a
deferment of the central grievance being considered , if indeed it were
stated, would hardly have gone unnoticed by the employees. Although
Souders personally may have held this mental reservation in dealing with
Outlaw's inquiry, I find, on all the evidence, that it was not voiced to the
employees, and that, from the statements made by management representa-
tives, they carried from the meeting the impression that Outlaw would be
reimbursed later on an installment basis. That Respondent may have later
decided to balance an alleged overpayment to Outlaw against his refund is
immaterial.
B Patrick, son of the service manager, worked as a parts and delivery boy,
and Rowe was the porterjanitor.
7 Among the suggested actions was one that they call in a union, but
there is no evidence that Respondent had any knowledge of this proposal.
8 Boyle stated he would attend a meeting of employees with Yanta but
would not arrange it or be their spokesman . Thomas Comstock first
attempted to arrange the meeting, but when he failed he turned the matter
over to Calton. Patrick testified that he was bypassed in that he was not
asked by the men to arrange this meeting . I credit Comstock's testimony
that he first went to Patrick, told him the nature of the problem, and asked
Patrick to arrange a meeting and that Patrick told him he would have to do
it himself as he (Patrick) was washing his hands of it.
9 Patrick did not indicate that the men stopped work or that he made any
attempt to assign work to the men who had completed their work and put
away their tools. On the contrary , he testified he was engaged in installing a
headlight which he had to turn over'to another when he was called to the
meeting. The record also fails to indicate whether the packing of tools
occurred near the men's quitting time.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately launched into a forceful statement of his
position , "hollering and yelling" 10 words to the effect that
he knew what they were there for; this was his business; he
was going to run it in his way ; he would not have a "bunch
of God damn mechanics" telling him how to run his
business; he was the one who paid the bills, and if they did
not like it they could get out. Boyle interrupted to tell
Yanta that nobody was trying to tell him how to run the
business." Yanta insisted , "yes you are, and I am God
damn mad . This is my business ." He then told employees
that they "could either quit bitching or get ... out,"
saying , "I'll run my business the way I want to run my
business and if you don't like it you can get . . . out. You
can get out right now . You have 30 minutes to get out, or
I'll roll your . . . tools out in the street." Boyle stood up
and said, "Well, do you have my check ready?" The rest of
the men also stood up. Yanta told them to turn in their
time and he would have their checks ready in 30 minutes.
Yanta testified that he was irritated at the first meeting
but did give each employee an opportunity to speak. He
also admitted being angry at the meeting of August 16
because he felt the men were being unfair . He then related
that after he had agreed to this meeting, but was delayed
by another matter, John Farrell (variously identified as
sales manager or assistant service manager) came in and
told him the men had their toolboxes locked up and were
not working , and this angered him. Yanta testified that he
did not then, in fact, know why the men had sought the
meeting ; that he did not make any inquiry about this; that
he commenced the meeting and did all the talking ; that he
did use the colorful and forceful language attributed to
him; and that he did generally state what the other
witnesses had testified to. Yanta asserted, however, that he
gave the men the choice of staying or leaving.12
The men went to the timeclock and turned in their cards,
then returned to the shop and loaded their tools .13 Souders
made out their checks. When Patrick gave the men their
pay, he told them to leave their phone numbers with him
and that if the men would give him a couple of days he
could cool Yanta down and everybody could go back to
work.
10 This characterization is that of employee witnesses . Souders testified
she was not present at the meeting but heard Yanta through the office walls
She did not hear anyone else speak.
i i Although Boyle was not designated the employee spokesman, he was
the only one other than Yanta who spoke at the meeting There is testimony
that when Yanta began speaking he looked directly at Boyle . According to
Patrick 's testimony, Boyle was the first to speak and stated he wanted
Calton to tell his side, when Yanta "got upset and jumped up" and
commenced his forceful statement related by other witnesses herein . Patrick
admittedly was late in arriving at the meeting . It would appear that Patrick
has confused Boyle 's role in the meeting of August 1 with that in the
meeting of August 16
12 Other credited testimony indicates that , although Yanta stated it as a
choice in the first instance , he never really gave employees a chance to
exercise that choice, as he permitted little interruption Thus , although he
did not say in so many words , "you're fired ," this was the understanding the
employees garnered from his threat to throw their tools into the street.
i3 Mechanics employed by Respondent on August 16 were Boyle,
McBee, Comstock , Calton , Paul Strylie, and Arnold Watson . Watson was
not present at this meeting and Strylie did not turn in his time Bodyshop
employees present were Outlaw and an employee identified only as Mike.
Mike did not turn in his time . Calton and Outlaw did not return to their
jobs. There is no indication that Outlaw sought to return.
14 Patrick testified that it was on Monday that Boyle brought in his
The following morning (Friday, August 17) at about
8:30, according to Boyle, he came into the shop and spoke
to Patrick, asking whether the men were going to get their
jobs back. Patrick told Boyle that Yanta was not going to
hire anybody back. Boyle said, "o.k.," turned in his
uniform and left.14 Boyle stated he returned to the shop
again on Monday, August 20. At that time no work was
being performed and there were no employees in the shop.
Patrick indicated he would inquire of his brother-in-law for
a job for Boyle. Boyle further testified that he returned to
the shop later that week seeking employment but was told
by Patrick there was no more room in the shop for him.15
At that time, Patrick sent Boyle to see the service manager
at a Chevrolet dealer for a job.16
Meanwhile, on Friday, August 17, at about 9 a.m.,
McBee came to the shop and had a conversation with
Patrick who, after various inquiries and comments, asked if
he would come back to work. McBee, who had already
obtained other employment, responded that he was willing
to but wanted to speak to Yanta first. Patrick summoned
Yanta who told McBee, "You don't have to leave. That
guy up there (gesturing toward Boyle' s stall) is causing the
trouble." McBee told Yanta it was not Boyle but Comstock
and Calton who "got the meeting up." Yanta stated he
thought it was Boyle. It was agreed that McBee would
report to his job with all rights and conditions restored on
Tuesday, August 21, after his normal Monday off.
Around 9:30 a.m. Monday, Calton went to the shop and
spoke with Patrick who asked Calton if he wished to return
to work. Calton replied that he would but wanted to speak
to Yanta about it. Yanta came by and Patrick told him
Calton wished to return to work. Yanta replied, "It would
be the same old ..." and walked away.
Comstock came into the sales office on Monday evening
for the purpose of seeking his job. With respect to the
conversation which took place between him and Yanta in
the presence of Farrell, Comstock testified as follows:
Mr. Yanta started out giving me a talk that he didn't
want troublemakers around there and he didn't want
anybody that was going to stir up trouble, and Larry
Boyle was trying to get his job and he would not hire
uniform and asked , "[I is Mr. Yanta hiring back any of the employees that
walked out?" and that he told Boyle he had orders from Yanta that the men
would have to see Yanta first . I accept Boyle 's dating of these events rather
than Patrick's. It is noted that Patrick 's version would omit the visit by
Boyle at which time Patrick offered to make inquiries of his brother -in-law
for a job for Boyle. Patrick did not deny that this occurred Further. I do not
credit Patrick 's testimony; he told Boyle that the men had to see Yanta first
before they could be rehired. It appears from credited testimony that
rehired employees who saw Patrick and were offered their jobs were the
ones who requested to talk to Yanta first.
is Patrick testified that later in the week Boyle came in to have some
warranty work done on his car, but Patrick was occupied telling the
customers there was a walkout and that he could not handle anything
except emergencies . On further examination, Patrick fixed this as having
occurred on Wednesday, August 22, and testified that Boyle did not ask for
his job back, but instead asked whether Patrick needed a mechanic and
Patrick told Boyle he had a full crew.
16 Patrick testified that he received a call from this individual inquiring
for a mechanic and he replied he knew a real good one The job available
was for a used car mechanic and during his interview with that employer it
was agreed that Boyle should not be employed in the job because he was a
new car and line mechanic and would not remain if an opening in his
regular line of work occurred.
SUBURBAN AMC/JEEP 457
him back because he was a troublemaker and he would
fix it so Larry Boyle would not work for another AMC
dealer in ICansi s City. I told him-he said
something about Larry being a ring leader of the
trouble there. I told him Larry was not the ring leader
and if he would hire me back I would not give him any
trouble and he said that is fine, come back in the
morning.
Comstock returned to work on Tuesday, August 21.17 He
further testified that other shop employees on duty
Tuesday were McBee, Strylie and Watson, and that
Respondent did not have a full crew of mechanics but did
fill the remaining vacancies within a week.18
Yanta testified that Boyle never came to him to ask for
his job back. In this connection Yanta stated, however,
that there were quite a few things he would have wanted to
talk with Boyle about before he would have taken Boyle
back but he did not think there would have been a
problem. Yanta did not directly deny that he did not want
to take Boyle , back because he considered Boyle a
troublemaker.
Yanta denied he told Comstock he considered Boyle a
troublemaker but did not deny he made the comments
testified to by McBee. Yanta also denied he ever told
anybody he would see to it that Boyle would never get a
job at any other AMC dealer. He testified that he heard
this rumor later and denied that this was true. When asked
whether he told Comstock he would be hired back if he
(Comstock) would agree not to be a troublemaker, Yanta
answered, "I suspect I did, yes."
Testimony of both Yanta and Patrick , as well as other
record evidence, indicates that Boyle was regarded as a
mechanic of superior ability and had received recognition
as such.
C. Analysis and Conclusions
It is the General Counsel's contention that at the August
16 meeting Respondent's president presented employees
with an ultimatum that they cease engaging in concerted
activity or get out; that this constituted a constructive
discharge of employees because of their protected concert-
ed activity which violated Section 8(a)(1) of the Act,-,19 and
that an order requiring reinstatement and backpay which is
the normal remedy for unlawful discharges is warranted.
Alternatively, the General Counsel asserts that, even if it is
found the employees were not discharged but walked out,
they were engaged in protected concerted activity and
entitled to the remedy normally accorded economic
strikers including reinstatement and- backpay following an
unlawful refusal after a request to return to the job.
17 About a month later Comstock gave notice to terminate his
employment because he was moving to another city.
18 Patrick , who testified he had told Boyle on Wednesday he had a full
crew, named as mechanics on duty on August 22 McBee , Comstock, Strylie,
an individual named Kaywood , and himself . He further indicated that on
Wednesday he used Farrell on the grease rack and to assist him on the
floor ; that Leo , the bodyshop foreman and a bodyshop employee named
Mike were also there although the bodyshop had closed down Patrick
explained that they had stopped making appointments "because of the
walkout" and were rejecting all business because they did not have the men
to work and were waiting to see what would happen.
19 At various times during the hearing both the General Counsel and I
I find insufficient evidence to establish that the men in
the shop had concertedly stopped work after a suggestion
was made by someone that they do so. This comment
appears to have been no more than an expression of
frustration which, although stated, was not clearly acted
upon by employees. The fact that one or more of the
employees may have put away their tools when they
completed their work and waited for the meeting does not
require a contrary conclusion. Patrick who was their direct
supervisor and who was in the shop during this entire
period gave no testimony concerning any such conduct,
and it may be assumed that if such was the prevailing
conduct he not only would have noticed it and taken some
action, but also would have testified as to what took place.
Significantly, Farrell, who purportedly reported such
conduct on the part of the men, was never called to testify
concerning what he had observed or what he had reported
to Yanta. On the contrary, evidence that work was still in
progress is indicated by Patrick's testimony that he
personally was involved in a repair problem which he had
to turn over to someone else when the word came that
Yanta would see the men . Similarly, the testimony that
after the meeting the men returned to the shop to pack up
their tools would indicate that they had not previously
done so. On the basis of all the evidence, I find that the
shop employees did not engage in a cessation of work
before their meeting with Yanta on August 16.
There is virtual unanimity concerning what was said in
the August 16 meeting by Yanta and the men, and what
took place immediately following the meeting. The
uncontradicted testimony presented clearly reveals in
Yanta's total conduct, as well as in his statements, an
ultimatum to employees that they cease their concerted
activity ("quit bitching" and let him run his business his
way) or be discharged ("get out" within 30 minutes).20 I
find that these and similar statements made by Yanta to
employees at the August 16 meeting constitute threats of
reprisal for engaging in protected concerted activity
violative of Section 8(a)(1) of the Act. There is no saving
grace in the fact that at first this was stated as an
alternative. For, requiring employees to give up their
statutory right to engage in protected concerted activity in
exchange for continued employment constitutes the impo-
sition of an unlawful condition to continued employment
amounting to a constructive discharge.21
Even if Yanta had received a report that the employees
had stopped working and was angry because he believed
the employees were refusing to perform their work in order
to force him to conduct the meeting they had requested,
and if his statements are interpreted as an ultimatum that
they return to the shop and perform their work or be
referred to the five employees as "8(a)(3)s." This was an inadvertent but
erroneous label as a violation of Sec. 8(a)(3) of the Act is not alleged in the
complaint Correction of this inadvertence does not, however, require a
change of any ruling made , nor does the mislabeling affect or alter the
meaning of any of the statements made.
20 To be protected, the employees' concerted activity need not involve a
formal organization with an officially designated spokesman or contemplate
collective bargaining through unionization . See Carbet Corp., 191 NLRB
892.
21 See American Enterprises, Ind, 191 NLRB 866, 868-869, Royal Crown
[Bottling Co., Inc, 188 NLRB 352-353. Verbal abuse alone may be deemed a
ponstructive discharge See Marie Antoinette Mfg., 193 NLRB 396, 399.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged, his conduct was unlawful. For, the voicing of
grievances , which was the concerted effort in which the
employees were engaging, is a protected concerted activity
and a strike for that objective is also protected, and one for
which employees may not lawfully be discharged.22
In the final analysis, however, the specific statements
made and the total impact of Yanta's meeting with
employees on August 16 amounted to a discharge 23 as
punishment for continued concerted activity, by which
Respondent interfered with, restrained, and coerced
employees in the exercise of their statutory rights in
violation of Section 8(a)(l) of the Act.
Yanta virtually admitted that he conditioned the
reinstatement of employee Comstock upon the latter's
commitment to refrain from engaging in protected concert-
ed activity. I find that Respondent violated Section 8(axl)
of the Act when, in the interview in which Comstock was
seeking his job back, Yanta advised that he did not want
any troublemakers around there and withheld his reply
until after Comstock assured him Comstock would not give
any trouble, whereupon Yanta ceased expounding on his
opposition to troublemakers and told Comstock to report
to work the following morning. I also find that Yanta's
statement to McBee regarding Boyle causing the trouble,
when discussing McBee's reinstatement, carries a threat
violative of Section 8(a)(1) of the Act.
It is charged that Respondent discriminatorily refused to
reinstate Boyle because it viewed him as the ringleader in
such concerted activity. There is substantial evidence
indicating that Respondent had cause to,24 and did,
believe 25 that Boyle was the leader of the group activity,
and that Respondent referred to him as a "troublemaker."
Boyle was the first to arrive at the shop the morning
following the termination of the employees and to ask
Patrick whether the men were going to get their jobs back.
Patrick responded negatively. Yet a half hour later when
McBee came by the shop to verify the hours relating to the
pay he had received, but not to seek reemployment as he
had already obtained employment elsewhere, Patrick used
various approaches to persuade McBee to return to the job.
Boyle made repeated contact with Patrick relating to
reemployment and to his job-seeking efforts and Patrick
seemed most willing to assist Boyle find a job elsewhere,
meanwhile withholding information that men were being
rehired and finally falsely telling Boyle Respondent had
already hired a full crew. Patrick himself set the date of this
ss See Phillips Industries, Inc., 172 NLRB 2119, 2128 : "Concerted
activities for the purpose of mutual aid and protection include the
presentation of grievances and a temporary stoppage of work to present
grievances . Whether the employees engaged in a 'walkout' [Electronic
Design and Development Company, Inc., 168 NLRB 763] or a 'walkup'
[N.L.R.B v. Kennametal, Inc., 182 F . 2d 817 (C.A.3)] in quest of improved
terms and conditions of employment , where such action is not forbidden by
a valid subsisting collective-bargaining agreement, such activity is protected
activity within the meaning of Section 7 of the Act."
23 1 find nothing in the circumstances herein warranting the label
"walkout" applied to the events of August 16 by Respondent 's officials both
in testimony and in communications with customers , the public, other
dealerships , and the employees . The evidence clearly establishes that the
only reason practically all of the shop employees absented themselves from
work at the same time was Yanta 's 30.minute time limit within which they
were to take their tools and vacate the premises. That this was clearly the
situation is emphasized by Supervisor Patrick 's invitation to all employees
as they were leaving to give him their phone numbers so he could reach
advice as Wednesday, August 22, when Boyle came into
the shop to have some warranty work done and asked
Patrick whether he needed a mechanic. The evidence
establishes that at that time Respondent had not filled all
the vacancies.
Some effort was made to attribute the failure to rehire
Boyle to the fact he failed to seek reinstatement or rehire
from Yanta personally. In his testimony, Yanta enumerat-
ed a list of matters and alluded to others he would have
wished to discuss with Boyle personally before he would
have rehired Boyle, had Boyle sought him out. Yanta
indicated that had such an interview been satisfactory,
Boyle probably would have been reinstated. In his
testimony Yanta based this conclusion on the assertion
that he rehired all the others who spoke to him. This is
hardly a convincing argument, for Yanta admittedly
extracted from Comstock a commitment to refrain from
protected concerted activity. Similar assurances were
implied in the McBee interview and Yanta, by actions and
comment, refused to discuss Calton's stated desire to have
his job back.
Moreover, when employees left the shop on August 16
they were told by Patrick to maintain contact with him for
the purpose of returning to their jobs and this is what Boyle
did. If an interview with Yanta was necessary, it must be
concluded that this information was deliberately withheld
from Boyle while the desire of McBee and Calton to see
him were called to Yanta's attention when such interest
was discussed with Patrick.
All of these circumstances clearly point to a deliberate
design to avoid reemploying Boyle. As Respondent had
repeatedly acknowledged Boyle's superior ability and
frequently outstanding performance as a mechanic, and
none of the matters for discussion listed by Yanta were
advanced by him as Respondent's reason for so obviously
avoiding rehiring Boyle, the inference is inescapable that
Respondent discriminatorily failed and refused to restore
his job to Boyle because of his part in the concerted
activity for which employees had been discharged. I find
that Respondent thereby violated Section 8(a)(1) of the
Act.
With respect to the allegation that Respondent threat-
ened to blacklist an employee, I have credited Comstock's
testimony relating his interview with Yanta in which it
appears that the latter asserted "he would fix it so Larry
Boyle would not work for another AMC dealer in Kansas
them and they could return to work as soon as Yanta's temper cooled down.
24 Boyle had been instrumental in arranging the first meeting of
employees with Yanta on the subject of their grievances and had acted as
employee spokesman at that meeting . It was Boyle's "stall" where the
employees gathered for their discussions of their problems and Patrick had
observed them in Boyle 's stall engaged in discussions on the morning of
August 16 . Further, although Boyle had refused to arrange the August 16
meeting or to act officially as the employee spokesman , he was the only
employee who spoke up at the meeting and it was Boyle who first rose and
asked about his pay , followed by all the other employees at the meeting.
25 During the meeting, Yanta began stating his position looking directly
at Boyle who clearly felt compelled to respond by denying the accusation.
Yenta told McBee at the latter 's reinstatement interview on the following
morning that it was Boyle who was causing the trouble , and that he thought
it was Boyle who had "got up" the meeting of August 16. Yanta specifically
referred to Boyle, in his conversation in the Comstock reinstatement
interview, as the troublemaker.
SUBURBAN AMC/JEEP
City. . . ." Although I cannot find in the substantial
evidence presented on this subject that Yanta took any
steps directed towards-call ying out any such scheme, and I
so hold despite the difficulties encountered by Boyle in
obtaining employment, Yanta's demonstrated propensity
toward strong statements when he is angry leads me to
conclude that he did make a statement reasonably close to
that related by Comstock. I do not credit his denial thereof.
In the circumstances in which they were uttered , I find that
Yanta did threaten blacklisting as a retaliatory measure for
concerted activity and, thereby, Respondent violated
Section 8(a)(1) of the Act.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By threatening employees with discharge or other
reprisals ; by discharging Marion McBee , John L. Boyle,
Thomas Comstock, Robert, A. Calton, and Steven P.
Outlaw, and failing and refusing , unconditionally, to
reinstate the last four named employees; by imposing an
unlawful condition upon reinstatement ; and by threaten-
ing to blacklist an employee , all for engaging in protected
concerted activities, thereby interfering with, restraining,
and coercing employees in the exercise of their Section 7
rights, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent did not violate the Act in any other
manner alleged herein.
THE REMEDY
For the purpose of effectuating the policies of the Act, it
will be recommended that Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found , and from in any other manner interfering with,
restraining , or coercing its employees.
Further, it will be recommended that Respondent be
ordered to offer John L. Boyle , Robert A. Calton, and
Steven Outlaw ,26 immediate and full reinstatement to their
former positions or, if those positions no longer exist, to
substantially equivalent positions , without prejudice to
their seniority and other rights and privileges , and to make
each of them , Thomas Comstock and Marion McBee,27
whole for any loss of earnings and other benefits suffered
because of Respondent's discrimination against them by
payment to each of a sum of money equal to that which he
2e The General Counsel conceded that McBee was given an uncondi-
tional and adequate reinstatement , and therefore his name is omitted from
such requirement . Although Comstock accepted the unlawful condition and
returned to work on August 21, he thereafter terminated his employment for
personal reasons . Accordingly, it will not be recommended that he now be
given an unconditional offer of reinstatement.
27 As Comstock left his job for reasons unrelated to the unlawfully
imposed conditions he is deemed to have indicated he had no further
interest in employment with the Respondent , and his entitlement to
backpay shall cease as of the date he terminated such interim period of
unlawfully conditioned employment.
459
normally would have earned, absent the unlawful discrimi-
nation, with backpay and interest computed under the
established standards of the Board, in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of facts , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER28
The Respondent, Suburban AMC/Jeep, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisals of discharge;
discharging, and failing and refusing , unconditionally, to
reinstate employees; imposing unlawful conditions upon
reinstatement ; and threatening to blacklist an employee,
for engaging in concerted activities for their mutual aid or
protection, or in any like or related manner interfering
with, restraining, and coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act, except to
the extent that such rights may be affected by an
agreement in conformity with Section 8(aX3) of the Act, as
amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer John L. Boyle, Robert A. Calton, and Steven P.
Outlaw, immediate and full reinstatement to their former
jobs or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make each of them, Marion
McBee and Thomas Comstock, whole for any loss of
earnings each may have suffered by reason of the
discrimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, and reports, and all other records
necessary for determination of the amount of backpay due
and the rights of reinstatement under the terms of this
recommended Order.
(c) Post at its place of business at Raytown, Missouri, the
attached notice marked "Appendix." 29 Copies of said
notice, on forms provided by the Regional Director for
Region 17, 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
places where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that said notices
are not altered, defaced, or covered by any other material.
28 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order and all objections thereto shall be
deemed waived for all purposes.
29 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 17, in
writing , within 20 days from the receipt of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to carry out the Order of the Board and abide by
the following:
WE WILL NOT discharge, threaten to discharge or to
blacklist, refuse to reinstate , place unlawful conditions
upon reinstatement , or otherwise punish employees
because they have engaged in concerted activities for
their mutual aid or protection.
WE WILL offer John L. Boyle, Robert A. Calton, and
Steven P. Outlaw immediate and full reinstatement,
and will give backpay to them and to Marion McBee
and Thomas Comstock.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights.
All employees are free to engage in concerted activities
for the purpose of collective bargaining or other mutual aid
or protection. Our employees are also free to refrain from
any or all such activities.
Dated By
SUBURBAN AMC/JEEP, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 616
Two Gateway Center, Fourth At State, Kansas City,
Kansas 64101, Telephone 816-374-4518.