Suburban Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 228 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Suburban Chevrolet, Inc. and C. Gilbert Johnson.
Case 5-CA- 11222
January 14, 1981
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
ZIMMERMAN
On July 14, 1980, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Nor do we find merit in Respondent's contention that, because the Ad-
ministrative Law Judge generally discredited Respondent's witnesses, and
credited the General Counsel's witnesses, his credibility resolutions are
erroneous or attended by bias or prejudice. N.L.R.B. v. Pittsburgh Steam-
ship Company, 337 U.S. 656 (1949). We have considered the record and
the attached Decision and reject these charges.
2 In the absence of exceptions, we adopt, pro forma, the Administrative
Law Judge's findings that Respondent did not violate Sec. 8(aXl) of the
Act by (1) Bruce Johnson's statement on or about July 13, 1979, that, if
he had his money up, he "would close this place up and tell the world
what I 11 guys did to him"; (2) George Prevost's inquiry to Clinton Isset
on or about March 22, 1979, about Isset's feelings on the Union; (3)
Irving Tillman's statement in early 1979 that the business would be pad-
locked before the Union would be allowed in; and (4) Jesse Greenbaum's
remark early in 1979 that "before he would have a union in here, he
would sell the place."
In adopting the Administrative Law Judge's Decision, we do not rely
on the Administrative Law Judge's observation in fn. 33 that, even if Gil-
bert Johnson had requested the use of a demonstrator, he would not have
been afforded the opportunity.
3 The Administrative Law Judge inadvertently omitted from the notice
the language traditionally used by the Board to inform employees that a
respondent will not "in any like or related manner" interfere with the
employees' exercise of rights guaranteed them under Sec. 7 of the Act.
Accordingly, we will substitute a new notice for that of the Administra-
tive Law Judge to reflect this language. Similarly, the Administrative
Law Judge inadvertently omitted from par. 2(c) of the Order the tradi-
tional language requiring that the notice be posted immediately upon re-
ceipt. We will modify the Order to reflect this correction.
254 NLRB No. 16
Suburban Chevrolet, Inc., Baltimore, Maryland, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(c):
"(c) Post at its place of business in Baltimore,
Maryland, copies of the attached notice marked
'Appendix.' 3 6 Copies of said notice, on forms pro-
vided by the Regional Director for Region 5, after
being duly signed by Respondent's authorized rep-
resentative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other materi-
al."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amend-
ed, gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT lay off or otherwise discrimi-
nate against any employee for assisting Retail
Store Employees Union, Local 692, United
Food and Commercial Workers International
Union, or any other labor organization.
WE WILL NOT coercively interrogate em-
ployees about their union sympathies and ac-
tivities, WE WILL NOT threaten employees with
reprisals for exercising their statutory rights,
and WE WILL NOT attempt to engage in sur-
veillance of union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them under Section 7 of the Act.
228
SUBURBAN CHEVROLET, INC.
WE WILL compensate C. Gilbert Johnson,
with interest, for any loss of pay he may have
suffered because we laid him off.
SUBURBAN CHEVROLET, INC.
DECISION
BERNARD RIES, Administrative Law Judge: This case
was heard before me in Baltimore, Maryland, on Febru-
ary 11, 12, 19, and 20, 1980. Presented for decision are
six allegations that Respondent, on various dates in 1979,
violated Section 8(a)(1) of the National Labor Relations
Act, as amended, herein called the Act, by certain con-
duct of its agents,' and an assertion that Respondent
"terminate[d]" the employment of C. Gilbert Johnson on
July 17, 1979, in violation of Section 8(a)(3) of the Act.2
Briefs have been received from Respondent and the
General Counsel. Having considered the briefs, the entire
record,3 and my recollection of the demeanor of the wit-
nesses, I make the following findings of fact, conclusions
of law, and recommendations. 4
I. THE CONTEXT OF EVENTS
Respondent operates an automobile dealership in Balti-
more, Maryland, where it employs about 12 new-car
salesmen, perhaps 6 used-car salesmen, and some 75
other employees. Concern about a revision of Respon-
dent's commission plan led the Charging Party Gilbert
Johnson and other salesmen, in early 1979,5 to draft a
letter which Johnson then presented to a coowner of Re-
spondent, Irving Tillman. 6 While Tillman denied a re-
quest for a group meeting, individual conferences with
some salesmen were had.
The amended plan was put into effect, and, after sev-
eral of the salesmen discussed the possibility of union
representation, they agreed that Gilbert Johnson should
contact the Retail Store Employees Union. Johnson did
so. He and two other salesmen thereafter distributed au-
thorization cards, which Johnson then returned to the
Union. Around March 9, the Union sent Respondent a
written demand for recognition as bargaining agent of
the new- and used-car salesmen, and on March I filed a
petition for an election. The election, held on May 24,
resulted in a victory for the Union by an 11-7 margin.
The complaint alleges, inter alia, that Respondent's
representatives uttered threatening and coercive state-
Two of the allegations were added by amendment at the hearing.
One allegation, set out in par. 5(b) of the complaint, has been withdrawn
by the General Counsel on brief.
2 In fact, as he himself testified, Johnson was told on July 17 that he
was being laid off, not discharged. Johnson was recalled to work on Sep-
tember 17, 1979, subsequent to the issuance of the complaint on August
24.
3 Certain errors in the transcript are hereby noted and corrected.
4 The pleadings indicate, and I find, that it is appropriate for the Na-
tional Labor Relations Board to assert jurisdiction over Respondent in
this case. The pleadings further establish that Retail Store Employees
Union, Local 692, United Food and Commercial Workers International
Union, is a labor organization within the meaning of Sec. 2(5) of the Act.
All dates hereafter refer to 1979 unless otherwise indicated.
6 Other managerial officials of importance here are Coowner Jesse
Greenbaum, General Manager Bruce Johnson, and New-Car Sales Man-
ager George Prevost.
ments to employees prior to and after the election. I shall
first consider those claims.
II. THE ALLEGED VIOLATIONS OF SECTION 8(A)( I)
A. The Allegations Relating to Bruce Johnson
The complaint alleges that General Manager Bruce
Johnson, on or about April 25, violated Section 8(a)(l)
by "interrogating employees concerning attendance at
union meetings." Gerardo Pierorazio, a new-car salesman
for 4 years, testified that, a few days after the first orga-
nizing meeting with a union representative on March 12,
General Manager Bruce Johnson called him into John-
son's office and:
asked me if we had a meeting at the Holiday Inn
pertaining to union activities, and I told him we
had. And that I had signed a card-a petition. He
asked me what my feelings were toward the union.
I told him they were strong. I have always believed
in union activities.
An affidavit given by Pierorazio on July 18 varied this
testimony in several ways. Apparently the affidavit states
that the union meeting occurred on March "2," not "12."
The affidavit reads, "Bruce Johnson and George Prevost
asked me if I had been to the union meeting at the Holi-
day Inn." At the hearing, Pierorazio could not recall that
Prevost participated to any greater extent than being in
an adjoining office. Although Pierorazio insisted at the
hearing that Johnson "asked me what my feelings were
toward the union," the affidavit makes no reference to
any such question.
Bruce Johnson testified that he had no conversation
with Pierorazio in his office about attendance at a union
meeting at a Holiday Inn. He did recall having lunch
with Pierorazio soon after receipt of the union demand
(Pierorazio also remembered the lunch), at which time
Johnson attempted to broach the question of the Union
and company problems, but ultimately changed the sub-
ject.
Despite the discrepancies in Pierorazio's testimony, he
made a strong impression on me as an open and forth-
right witness, and I would be inclined to write off the
discrepancies to a faulty memory and to the vagaries of
affidavit-taking, a less than scientific process. Bruce
Johnson was himself a personally impressive witness, if
somewhat less so than Pierorazio, but I would choose
the latter over the former on the basis of comparative
demeanor. Moreover, as discussed below, Pierorazio tes-
tified to a statement by Bruce Johnson made after the
election, which Johnson denied having made. It was not
the sort of remark one might forget having uttered, and I
simply do not believe that Pierorazio fabricated the com-
ment out of whole cloth. My acceptance of Pierorazio's
testimony on this latter point naturally tends to color my
view of Johnson's testimony as a whole.
I conclude, therefore, that Johnson did ask Pierorazio,
soon after the March union meeting, if he had been in
attendance. I am also inclined to believe, despite its omis-
sion from the affidavit, that Johnson asked Pierorazio
"what his feelings were" toward the Union. The question
229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of whether these inquiries constituted coercive conduct
is, I think, a fairly close one.
The Board has held that not all interrogation about
union matters is impermissible: "[I]nterrogation of em-
ployees by an employer as to such matters as their union
membership or union activities, which, when viewed in
the context in which the interrogation occurred, falls
short of interference or coercion, is not unlawful." Blue
Flash Express, Inc., 109 NLRB 591, 593 (1954). In that
case, where the employer systematically interviewed em-
ployees in his office to determine the validity of a union
claim of majority status and "communicated its purpose
in questioning the employees-a purpose which was le-
gitimate in nature-to the employees and assured them
that no reprisal would take place" and the questioning
"occurred in a background free of employer hostility to
union organization," the Board found no impropriety. Id.
at 593, 594.
Generally, the Board has since appeared to regard
almost any interrogation about union activities as viola-
tive, if the affected employee has not been informed of a
lawful purpose for the interrogation nor given assurance
against retaliation Satra Belarus, Inc., 226 NLRB 744,
746 (1976), York Division, Borg-Warner Corporation, 229
NLRB 1149, 1150 (1977), and despite the existence of a
"long, cordial work relationship" and a "friendly, pleas-
ant, and courteous manner." Hanes Hosiery, Inc., 219
NLRB 338, 339, fn. 2 (1975). These and similar cases
would seem to dictate that a violation be found.
On the other hand, it is clear from the record that the
salesmen and the managers work closely together and
are on a first-name basis; the general manager's office
was a familiar place to Pierorazio and the other sales-
men; Pierorazio testified that he "volunteered" the infor-
mation that he had signed a union card, thus arguably
implying that he did not feel unduly threatened; and
thereafter he had "so many" conversations with Johnson
about the Union. These circumstances suggest that the
interrogation might not be held coercive under the crite-
ria set out in Bonnie Bourne, an individual d/b/a Bourne
Co. v. N.L.R.B., 332 F.2d 47 (2d Cir. 1964), and like
cases.
I am, however, bound by prevailing Board precedent.
Moreover, I think it can be fairly said that there were
coercive overtones to the questioning of Pierorazio.
There was a definite element of formality involved, since
Johnson called Pierorazio into his office to speak about
the matter. The conversation was not a lengthy discus-
sion of the pros and cons of unionism, as often happens,
but rather a limited and pointed inquiry into whether a
meeting was held and where Pierorazio stood. Calling in
an employee solely to elicit answers to such questions
seems to me to stress the employer's anxiety about the
impending effort and to throw a discomfiting spotlight
upon the employee. That Pierorazio "volunteered" that
he had signed a card could as well be a symptom of ner-
vousness as of relaxation. Given the Board's precedents,
and the controlling test of whether the Employer "en-
gaged in conduct which reasonably tends to interfere
with the free exercise of employee rights under the Act,"
Hanes Hosiery, Inc., supra, 219 NLRB at 338, it seems ap-
propriate to conclude that the interrogation in issue here
reasonably so tended.
The complaint further alleges that, on or about July
13, Bruce Johnson violated the Act by "implicitly threat-
ening to blacklist employees because of their activities on
behalf of the Union." Pierorazio testified that at some
uncertain time after the election, perhaps around the be-
ginning of June, Johnson "called me aside and said in a
statement to me, if I had my bucks up I would close this
place up and tell the world what '11 guys did to him."'
Johnson denied making any such statement. I simply do
not believe, as earlier stated, that Pierorazio conjured up
this testimony from his imagination.
I also do not believe that the statement violated the
Act. At the hearing, counsel for the General Counsel in-
sisted, and continues to insist on brief, that the reference
to "tell[ing] the world what 11 guys did to him" consti-
tuted a threat to "blacklist" the employees.7 The conten-
tion seems most fanciful to me. A threat to blacklist, at a
minimum, should be uttered by an employer representa-
tive with the power to terminate operations, or his agent,
suggesting, in a realistic way, that he would do just that
and would, in the process, notify other employers of the
identity of the employees who had been responsible for
the union organization. Bruce Johnson, a general man-
ager without any capability of shutting down the busi-
ness, was unleashing here nothing more than hypotheti-
cal rhetoric, asserting that, if he were the proprietor, he
would be tempted to close down the operation and ex-
press to the world his sentiments about the collection of
ingrates he had once employed. To assume that Pierora-
zio somehow reasonably regarded this statement as a se-
rious and viable threat to "blacklist" the employees is, I
think, wholly unrealistic. I recommend dismissal of this
allegation.
Donald Dugan, a salesman who was discharged by
Respondent soon after the election, testified that Bruce
Johnson spoke to him about the union campaign perhaps
three or four times between the filing of the petition and
the election. On one such occasion, Dugan said that, the
morning after a union meeting, Johnson came to his
desk, "smiled," and said, "I don't have to ask you what
went on last night because I already knew last night after
the meeting." This was the entire conversation.
Bruce Johnson gave the following account. One morn-
ing, as he neared Dugan's desk in order to turn on some
extra lights, Dugan said to him, "We had a big union
meeting last night." Johnson replied, "I already knew
about it." At the hearing, Johnson did not explain how
he had come to know of the meeting.
The complaint alleges that Respondent, through John-
son's agency, violated the Act "by creating the impres-
sion of surveillance of employees' union activities by tell-
ing employees that he thought certain employees were
involved in union activities." This rather specific claim
does not nearly track Dugan's testimony, but it is the
only complaint allegation touching the general area of
surveillance. Although Dugan made a favorable personal
I My extension of an opportunity to amend the complaint to allege a
more conventional threat was politely rejected, with a request to argue
the "blacklist" theory on brief. That argument has been made.
230
SUBURBAN CHEVROLET, INC.
impression on me, his testimony contains some substan-
tial inconsistencies. Unlike the incidents referred to by
Pierorazio, here Johnson recalled the specific occasion
and gave a not implausible account of what happened. 8
Dugan displayed a certain animosity toward Respondent.
That bias, coupled with the general uncertainty of his
testimony, leads me to conclude that the Government's
case is not sufficiently reliable on this issue to serve as
the foundation for finding an unfair labor practice.
B. The Allegation Pertaining to George Prevost
As amended at hearing, the complaint alleges that
New-Car Sales Manager George Prevost violated the
Act by "interrogating employees concerning their union
activities." Clinton Isset, Jr., a new-car salesman, testified
that within 10 days of the filing of the election petition,
as he and Prevost were driving to dinner, Prevost said,
"I guess you know what this is for." When Isset pro-
fessed ignorance Prevost said, "It is about the union. I
want to know how you feel about the union." Isset asked
whether the inquiry was "official or unofficial." Told it
was the latter, Isset said, "Officially, you can tell any-
body you want to, but I am leaning towards the union."
Thereafter, Prevost "did his campaigning all the way
over" to the restaurant, telling Isset about his unhappy
union experiences as a stevedore. Isset testified that he
thereafter had many conversations with Prevost about
the Union; the one referred to here does not appear in
his pretrial affidavit.
Prevost testified that, as they drove to lunch, he
merely asked Isset, "What is happening?", to which Isset
replied, "Right at this point, I am leaning very strongly
toward a union." Prevost denied making any initial refer-
ence to the union situation. He did concede that, after
Isset volunteered his inclination, he told Isset that it was
"his business," but went on to speak of a "little problem
with the union when I was a stevedore."
Isset appeared to be a more credible witness than Pre-
vost, and his version of the conversation is patently more
appealing as a matter of logic. I therefore accept Isset's
account of the conversation. In this case, however, I
would not be inclined to find a violation. Prevost's ques-
tion was obviously only a preliminary to further discus-
sion about the merits of unionization, which thereafter
did occur, and Isset surely recognized that the inquiry
was simply designed to determine whether it was neces-
sary for Prevost to do any "campaigning." In this view,
a legitimate purpose of the question was conveyed to
Isset and, by implication, the notion of reprisal was put
aside. The question was not "interrogation," that is, the
seeking of information as such, but simply a threshold es-
tablishment of Isset's position preliminary to further dis-
cussion. I doubt that this initial query could be said to
have had a reasonable tendency to coerce Isset.9 I shall
recommend dismissal of this allegation.
s Indeed, Johnson's account strikes me as more likely than the rather
forced "I don't have to ask you what went on last night because I al-
ready knew last night after the meeting" testified to by Dugan.
9 Isset testified that Prevost was in a "jovial mood" during their con-
versation, as was Isset himself
C. The Allegations Pertaining to Jesse Greenbaum and
Irving Tillman
The complaint alleges as violative the conduct of
Coowner Jesse Greenbaum, "sometime in early March
1979, the exact date being unknown . . . in threatening
to sell the business should the Union win the NLRB
election." The General Counsel in fact produced evi-
dence of two incidents in which Greenbaum purportedly
spoke of closing the business, the first of which occurred
even before the employees had approached the Union
about representation. Since Greenbaum testified in re-
sponse to both allegations, I consider them thoroughly
litigated and ripe for resolution.
Isset testified that, during an individual meeting with
Greenbaum about the commission plan in February, the
latter referred to the petition which the salesmen had
signed, "hit the desk," and asked Isset if he knew "what
this is the first step of." Answering his own question,
Greenbaum said, "It is the first step of a union," adding,
"If that fucking union comes in here and tries to tell me
how to run my business, I will put a padlock on the door
and close the place."
Greenbaum recalled a meeting about the pay plan with
Isset. He did not "remember" whether the subject of a
union came up at the time, but he labeled "ridiculous"
the notion that he would have threatened to close the
business in the event of unionization, since he had only
recently renewed the property lease for a 5-year period.
On cross-exemination, Greenbaum's inability to "remem-
ber" any conversation about a union disappeared: "There
was no conversation about any union."
Greenbaum made a fairly good appearance, but was
not as impressive as Isset. Other testimony given by
Greenbaum, discussed hereafter, led me to believe that
he is not a particularly reliable witness. I find it extreme-
ly unlikely that Isset manufactured this exchange. Ac-
cordingly, I would give credence to the testimony of
Isset, a current employee of Respondent, on this subject.
I would further conclude that, despite the fact that no
union campaign had begun at the time Greenbaum made
his statement, the comment was unlawfully coercive.
Greenbaum obviously, and presciently, foresaw the
union effort looming somewhat larger than a man's hand
on the horizon, and he went out of his way to allude to
the specter and its awful consequences. The threat surely
would have had a reasonable tendency to dampen an em-
ployee's enthusiasm for collective activity.o
Gilbert Johnson, the Charging Party, testified that in
March, while Greenbaum was speaking to some unidenti-
fied stranger on the showroom floor, he said in a "loud"
voice that "before he would have a union in here he
would sell the place." Johnson was "sure four or five
people on the showroom floor heard him." Since it
seems relevant to this issue, I will also discuss here a
similar remark, also alleged as an 8(a)(1) violation, attrib-
uted by Johnson to Coowner Irving Tillman. Johnson
said that probably in March Tillman said on the show-
room floor that he "would padlock the place before he
'o The fact that it had no such effect on Isset, :s events proved, is
immaterial.
231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would let a union in there." Johnson said Tillman was
conversing with someone whom he could not recall.
Greenbaum testified that he may have made a remark
on the showroom floor about a separate business venture
which had almost collapsed, and he speculated that
Johnson may have misunderstood the sense of that com-
ment. Tillman testified that he made "absolutely" no
such statement. Norman Ziehl, a salesman who appeared
as a witness for Respondent, said that he never heard
Greenbaum make such a statement. He went on to say,
however, "I heard a lot about it. But I did not hear it
myself." He explained that he had heard the "fellows
talking" about such a remark by Greenbaum. Ziehl gave
similar testimony about Tillman's alleged threat-that he
did not directly hear it, but he "heard talk" about it.
Gilbert Johnson was a pleasant and seemingly sincere
individual, but his testimony, while limited in extent, was
internally inconsistent, uncertain, and at odds with his
pretrial affidavit. At the same time, I was less than im-
pressed with Greenbaum's testimony, and not at all with
Tillman's. I think that the testimony by Ziehl, a witness
vouched for by Respondent, about having heard that
Greenbaum had referred to closing the business, tends to
corroborate Johnson. In addition, there is something in
Greenbaum's speculation that he may have made a
remark on the showroom floor concerning another ven-
ture which makes me suspect that he recalled the inci-
dent to which Johnson referred. At the same time, even
though I am inclined to believe Johnson on this point,
the evidence is insufficient, I think, to allow a conclusion
that Greenbaum, in the course of talking to the unidenti-
fied person about closing the business, deliberately in-
tended to make himself audible to the salesmen. t
Although Johnson's demeanor and general credibility
seemed superior to Tillman's, and the same confirming
gloss was lent by Ziehl regarding Tillman's alleged
remark, I am reluctant to find that Tillman did make the
comment attributed to him by Johnson. While Johnson's
pretrial affidavit sets out the statement made by Green-
baum, it says nothing of the remark by Tillman, and
Johnson was hardput to explain the inclusion of the one
and the omission of the other.
In any event, since Johnson testified that the Tillman
remark was simply overheard by Johnson, and I have no
reason to believe or disbelieve that Tillman would have
intended or foreseen such a result,12 there would be no
basis for concluding that Tillman deliberately threatened
the employees. In N.L.R.B. v. McCann Steel Company,
Inc., 448 F.2d 277, 278 (6th Cir. 1971), the court noted
that "the law seems clear that the Board must demon-
strate that the remarks were made with some intent that
they be overheard." I do not believe that such a demon-
' Ziehl testified, as noted, that he did not hear the remark. There is
no way of knowing whether Ziehl was present at the time. However,
even if he were, his testimony indicates that the alleged statements by
Greenbaum and Tillman could "certainly" have been made without
Ziehl's having heard, due to the placement of his desk.
1' While Johnson testified on direct that Tillman was speaking to
"[elveryone," he said on cross that Tillman was "conversing with some-
one else," either a "[m]ember of the sales force and/or management, I
don't know," at the time he made the remark some 10 yards away from
Johnson. The statement was made in a "medium" tone of voice.
stration has been made here, and I consequently recom-
mend that these two allegations be dismissed.
When Ziehl appeared on Respondent's behalf, he gave
the following testimony at one point in his direct exami-
nation, to the considerable surprise of counsel for both
parties:
Q. Did Mr. Tillman anytime in March, April, or
May of 1979, talk to you about the union?
A. No, sir. Well, I will say one thing. One night
he called me and asked me to go to a union meet-
ing. I told him, no. That is all.
On further questioning, Ziehl said Tillman "just asked
me to go down there and see what went on." Thereafter,
I granted the General Counsel's motion to amend the
complaint to allege that Respondent, by Tillman, had
been "attempting to engage in surveillance of union ac-
tivities by requesting an employee to attend a union
meeting and report back as to what had transpired."
In his initial appearance on the stand, before Ziehl tes-
tified, Tillman stated that he had played a very limited
role in the preelection campaign and "never" said any-
thing to the employees about the Union. Post-Ziehl, Till-
man testified again to his lack of operating control over
or interest in the dealership, stated that he had never
called an employee "at home," and said he was "100 per-
cent" certain that he had not made the asserted request
to Ziehl. On cross, however, Tillman conceded that he
had once called Ziehl "at the dealership," but "doubt[ed]
very much" if it was in April or May. Almost immedi-
ately, however, he agreed that the telephone conversa-
tion occurred in April, and that its exclusive subject was
an excursion to the Preakness in which Ziehl would act
as chauffeur for a party.
I thought Ziehl a relaxed, spontaneous, and veracious
witness; I do not believe that he fabricated and uttered a
baldfaced lie about the telephone call. Respondent argues
on brief that even if I were to believe Ziehl over Tillman
no unfair labor practice would be made out because Till-
man did not, as alleged, ask Ziehl to "report back as to
what had transpired" at the union meeting. Obviously,
however, Tillman's request that Ziehl attend the meeting
to "see what went on" was not intended to be some sort
of continuing adult education for the benefit of Norman
Ziehl; the plain import of the mission was the gathering
of information. The Board has held that such a request
violates the Act, Montgomery Ward & Co., Incorporated,
224 NLRB 104, 107 (1976), and the precedent applies
here.
Ill1. THE LAYOFF OF GILBERT JOHNSON
Gilbert Johnson was laid off by Respondent on July
17. At the time, General Manager Bruce Johnson told
him that the layoff was for "economic reasons" and that
"[t]he desk would be waiting for me as soon as things
happen-as soon as the economic situation got better. I
would be called back." Gilbertl3 filed a charge with the
Board on the same day, and he was recalled to work on
'3 In view of the identity of surnames of the general manager and the
Charging Party, I will refer to each hereafter by his first name.
232
SUBURBAN CHEVROLET, INC.
September 17. The 2-month layoff is alleged to be viola-
tive of Section 8(a)(3). At the time of the layoff, Gilbert
had been a car salesman for about 25 years, a Chevrolet
salesman for around 20 of those years, and an employee
of Respondent for nearly 4 years.
The record shows that Gilbert was the principal actor
in the effort to obtain union representation. I think it rea-
sonable to infer, despite the denials of management rep-
resentatives, that Respondent was aware of, or at least
strongly suspected, Gilbert's role in the advent of the
union campaign. Gilbert had been the one who had pre-
sented to Tillman the petition for a group meeting in
February, conduct which Greenbaum later characterized
as the first step toward unionization. Dugan gave uncon-
tradicted testimony that, when he met individually with
Bruce about the disputed commission plan, Bruce said
that the employees "should have had someone else repre-
sent us, other than Mr. Gil Johnson . . . because he did
not create a good image for us."
The record shows that Bruce engaged in many con-
versations with the salesmen prior to the election in an
effort to dissuade them from supporting the Union. Cur-
iously, however, he testified that he only had one such
conversation with Gilbert before the election.' 4 Consid-
ering Bruce's conceded lack of restraint about approach-
ing the other salesmen on the subject of unionization, his
description of how he came to speak to Gilbert sounds
for all the world as if a council of war was being held:
As a matter of fact, I had heard-I don't recall who
it was, anyway, that I heard a rumor from one of
the salesmen and I believe I even told Mr. Green-
baum about it-there was a rumble on the show-
room floor that Gil Johnson wanted to talk to me
and if I am not mistaken, as I told Jesse-I said, Gil
wants to talk to me. I will sit down and talk to him
about the union.
This sort of "summit meeting" approach to a conver-
sation with Gilbert about the Union, including a prior
conversation by Bruce and Greenbaum about its immi-
nence, suggests to me that Gilbert was regarded not only
as a union partisan but probably as a leader.
Bruce's account of what was said at this meeting was
not consistent, but his first version was that Gilbert
stated, in reply to Bruce's expressed opinion, that there
was no need for a union, and that "he felt there was."
Bruce quickly changed this to "[t]he salesmen in general
felt that there was a need for a union," and he denied
that Gilbert himself had expressed such a belief ("We
never talked about that"). Whatever the correct version,
it seems likely that Bruce would draw from such a con-
versation an accurate understanding of Gilbert's posi-
tion. ' 5
Pierorazio, a strong union supporter, testified without
refutation that just before the election Greenbaum told
him that he had done a good job for Respondent and, as
14 Subsequently, Bruce testified that another occurred after the elec-
tion.
'I Gilbert testified that on more than one occasion Bruce "in essence"
said to him, "I know you are going the other way, but I hope you go my
way." This may well have occurred, but Gilbert's testimony is uncertain
enough to make me reluctant to rely on it without reservation.
long as he continued to do so, he would have a job with
the firm "with or without the Union." Greenbaum said
to Pierorazio that he "also told that to Gil." The infer-
ence seems inescapable that Greenbaum would have had
no reason to point out to Pierorazio and Gilbert that
their jobs were secure "with or without the Union"
other than a belief that they were both identified with
the Union. 6
George Prevost, asked if he knew that Gilbert was
prounion, replied, "I didn't know. All I had was personal
opinions, right?" He further testified about his knowl-
edge that Gilbert, Pierorazio, and another salesman had
been employed by a unionized car dealer at a prior time.
On the basis of the foregoing, and the fact that we
deal here with an 18-person bargaining unit in which
both management and employees worked so closely to-
gether, I am quite willing to infer that Respondent knew
the vigorous union supporters within the unit.
As stated above, Gilbert was told on July 17, almost 2
months after the election, that he was being laid off for
"economic reasons." The General Counsel essentially
grounds the claim of discrimination on alternative the-
ories: one, that there was no economic need for a layoff
of any salesman, and that the decision was taken wholly
in reprisal against Gilbert's prounion stance; and, the
other, that even if the decision to reduce the force can
be economically justified the selection of Gilbert rather
than another employee was a choice motivated by an un-
lawful intent.
The testimony proffered by Respondent in this case
was often inconsistent, illogical, improbable, and hyper-
bolic. For example, when I raised a question as to the
amount of money Respondent would save by laying off a
salesman such as Gilbert, who basically worked on com-
mission against a guaranteed draw, Bruce testified that
the cost of keeping Gilbert on would have been "prob-
ably a few hundred dollars" a month, and then said "we
were saving a few dollars" as a result of the layoff. After
a hiatus in the hearing, Greenbaum came on with a list
of "direct" and "indirect" costs attibutable to Gilbert's
retention which would be "saved" by laying off Gilbert;
the estimated savings amounted to more than S1,200 per
month. By and large, the list is ludicrous.' 7 It appears,
rather, that the only reasonable estimate of savings re-
sulting from the layoff of a salesman would be no more
than the "few hundred dollars" adverted to by Bruce on
one occasion.
'e Bruce freely conceded that Pierorazio's feelings about the Union
were "well known"; he was "very vocal about it."
'7 Without going into detailed explanation which the transcript and
commonsense easily afford, I note that Greenbaum's figures include $600
of "Lost Sales," by which he apparently means that, if Gilbert sells only
six cars a month and the remaining salesmen sell an average of eight cars,
the layoff of Gilbert would actually result in the sale of Gilbert's antici-
pated six cars plus two more. On such a theory, it would be a continually
losing game to have Gilbert in Respondent's employ. Other saved "ex-
penses," such as office supplies, office help, computer expense, etc., are
caused by the sales of cars, and would be incurred if any salesman sold
the cars which Gilbert might otherwise have sold. The idea that Respon-
dent would have saved $100 in advertising as a result of Gilbert's antici-
pated short-term absence is absurd; clearly, Respondent did not immedi-
ately reduce its advertising budget. I see no point in going further with
this list except to note a "heat" saving (in July) of $5 per month, asser-
tedly effected by Gilbert not being there to open and close the door.
233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Against this suspicious overkill indulged in by Green-
baum, however, must be considered certain indisputable
facts. Like many automobile dealers, Respondent suf-
fered a severe economic decline in the first half of 1979.
Evidence of record shows that, comparing the periods
January-June in 1978 and 1979, its new-car department
net profit dropped from $77,313 to $7,954; its used-car
department net profit decreased from $69,981 to $12,894;
and its overall net profit fell from $183,975 to an actual
loss of $6,953. New-car sales for the first 6 months of
1979 went to 742 in contrast to the 881 cars sold for that
period in 1978. Bruce testified that 1979 was, "without
any question," the worst of his 9 years with Respondent.
In June, after receiving the May financial report, Re-
spondent took several actions which seem consistent
only with a desire to decrease costs. Haslett, a new-car
salesman, was laid off.' 8 Dugan, a new-car saleman
whose production was thought to be low, was fired.' 9
John Arnetta, a used-car salesman, was laid off. A new-
car salesman named Day, hired in March, was moved
into the service department, and two service writers
were discharged when Day transferred in. A "car
jockey" was fired and an existing employee, an appren-
tice mechanic, replaced him. There is no evidence that
any new employee was hired to replace the mechanic.
Certainly, then, it appears that Respondent was seek-
ing to institute economies as early as June.2 0 As previ-
ously discussed, I can see no great savings from the
layoff of Haslett and Arnetta and the termination of
Dugan, but, so far as I am concerned, these actions indi-
cate that, for presumptively legitimate reasons, Respon-
dent believed by June that some trimming of personnel
was in order.21
Another trouble spot in Respondent's case, however,
at least insofar as the reason for laying off and terminat-
ing car salesmen goes, is the seemingly contradictory tes-
timony given by Bruce and Greenbaum, who agreed that
they jointly made the layoff decisions in June and July.
Bruce gave much testimony about the need for econo-
mies, and yet, as earlier discussed, in answer to questions
about the savings resulting from the layoff of Gilbert,
Bruce emphasized less the cost element than the purport-
ed interest of spreading a limited number of potential
customers over a restricted sales force:
Probably a few hundred dollars [of cost savings]
.... I am not certain of the figure, but there was
18 Haslett was, however, retained as an "outside" salesman, who had
the privilege of bringing customers to the showroom, but was not re-
quired to put in time on the selling floor. He also was permitted the use
of a demonstrator car. There is no contradiction of Bruce's testimony
that Haslett, who Bruce referred to as "kind of semi-retired," was actual-
ly laid off, and that he, unlike Gilbert, asked for the privileges of being
retained as an outside salesman and allowed a demonstrator car.
1g Dugan filed a charge with the Board, but later withdrew it.
20 While it had hired two new salesmen, Day and Brooke, in March,
after an admittedly "disastrous" January and February, this does not
seem unreasonable in the light of the customary "big March-April"
which Bruce testified, without contradiction, should be expected, but
which never materialized. Day was hired to replace a salesman who had
quit, so in effect only one new employee was hired in March.
21 Of course, the replacement of the two service writers by Day re-
sulted, if I am reading Bruce's somewhat ambiguous testimony correctly,
in the saving of one man's salary. This also appears true of the replace-
ment of the car jockey by the unreplaced apprentice mechanic.
another factor there, too, which was an intangible.
We had to have salesmen waiting on these custom-
ers that were capable of closing deals and selling
jobs.
We were desperate to start selling cars and get
things going again. Plus, the fact that we had other
salesmen there that were doing a good job, com-
paratively, but not really earning as much money
and they were getting disgruntled.
We had to protect their earnings, by the expression
in use on the floor-cutting up the pie. There were
a lot of factors that came into the temporary
layoff. 2 2
Greenbaum, who had purportedly discussed with
Bruce the decision to lay off Gilbert, mentioned not a
word about the other "intangibles" referred to by Bruce.
Asked the reason for the layoff of Gilbert, he was direct:
For economic reasons. We were losing money ...
Everything was significant at that time. When
you're losing money you do everything you can to
try to turn it around.
The disparity between the two witnesses on this point
is, it goes without saying, highly suspicious. It might
easily be thought to indicate that some other motive lay
behind the release of Gilbert, given that Bruce and
Greenbaum both testified that they had a discussion of
the need to let a salesman go in July. Still, one can see
the possibility that two longtime associates like Bruce
and Greenbaum might sense, after looking at the June fi-
nancial statement, that it would be advisable to lay off
one salesman, without thoroughly and formally discuss-
ing their perceived (and differing) reasons for such a
move. The inescapable fact, as immovable as Gibraltar, is
that in June Respondent laid off two salesmen and dis-
charged another, even though, as discussed, those actions
would not appear to have yielded any notable econo-
mies. June having evidently been no more profitable than
May, it seems quite difficult to say that the decision to
lay off still another salesman in July was in any way a
materially significant departure from its prior business
policies, whatever the reason for those policies (and I
must presume here that the June personnel actions bore
no relationship to the union activity).
Assuming a nondiscriminatory purpose in deciding to
lay someone off, the question arises as to whether the
choice of Gilbert was related to his union activities. Here
again, the testimony given by Respondent seems uncer-
tain and contradictory.
Bruce testified that after the financial statement for
June came out in the second week of July, showing, as
he and Greenbaum already knew, that business had not
improved they decided to lay off another salesman.
Bruce's testimony on the decisional process in making
such a layoff is not a paradigm of consistency. He first
said that "[v]olume is the criteria [sic]" for the decisions
made in June, but then agreed that seniority played a
22 Bruce could not, when asked, recall any "specific" complaints from
disgruntled salesmen.
234
SUBURBAN CHEVROLET, INC.
role in July (as discussed below). Speaking of the June
layoffs, he said, in answer to a question about whether
1978 production was considered, that "[t]here are a lot of
things as far as was it [sic] a number factor. There are
some judgment calls that you have to make. .... When
you are looking at your overall production, you looked,
is this man going to come back to life. We had a person,
for instance, in 1978 that had a continual drop in 1978
and yes, you look at it." However, Bruce's very next
two sentences belied this discretionary approach: "In the
layoffs that we made, these were not factors. We had
very mechanical reasons." Bruce went on to explain that
the "mechanical reasons" were a comparison of the
volume of sales per salesman since January 1979.
The evidence includes a breakdown of new-car sales
by each salesman for the first 6 months of 1979. Bruce
says he drew the chart up in early June, prior to the per-
sonnel actions taken that month, averaging the perfor-
mance of each new-car salesman for the first 5 months of
the year, and then updated the chart after the June fig-
ures were in.23 The tabulation shows that of the 10 new-
car salemen still employed in July, the 2 lowest produc-
ers for the preceding 6-month period were Gilbert and
salesman Kress, with identical records of 41 cars sold, or
6.83 per month. 24
The General Counsel argues that, assuming that Re-
spondent had a justifiable basis for laying off one sales-
man, it should logically have selected either Kress or
Brooke rather than Gilbert. As to Kress, the General
Counsel points out that the record shows that on three
occasions in 1979 Kress failed to earn his monthly draw
(for a total of $405.14), whereas Gilbert failed to do so
only once in 1979 (in the amount of $178.38). Bruce testi-
fied that he never examined the draw moneys expended
by Respondent in deciding the choice for layoff.2 5 But
since Greenbaum testified that "if a person makes a
draw, that is another factor" in the cost of retaining a
salesman, and since the need for economizing was, de-
pending on which testimony one examines, an extremely
important consideration in laying off, an argument based
on Kress' excess of draw over Gilbert's seems sensible.
There is, however, a clearly overriding distinction be-
tween Kress and Gilbert which Bruce testified he used
to break the tie between them, and that is Kress' senior-
ity. At the time of layoff, Kress had been with Respon-
dent for more than 31 years; Gilbert had been employed
for slightly less than 4 years. It is difficult to imagine any
employer laying off a veteran like Kress rather than Gil-
bert simply because Kress' draw had been $227 more
than Gilbert's over a 6-month period.
23 Not shown on the document is salesman Day, whose transfer to the
service department had, according to Bruce, already been decided upon
by the end of May. Bruce testified that Day actually transferred to the
service department "approximately the first of June, in that area." I note,
however, that the parties stipulated that Day sold four cars in June. It is,
of course, possible that Day had a smashing first few days in June, al-
though his record of one sale in March, one car in April, and three cars
in May suggests otherwise.
24 The remaining figures are Ziehl, 7; Brooke, for the 4 months that he
had worked, 7.25; Haderman, 7.83; Voith, 9; Isett, 10.33; Harper, 10.67;
Hagner, I ; and Pierorazio, 14.17.
25 The evidence shows that once an employee is paid a draw amount,
the Company does not recoup it from future commissions.
The testimony relating to the standard applied to de-
termine layoff is most unsatisfying. Assuming, as Green-
baum testified, that the layoff was dictated by strictly
"economic" factors, one would suppose that Respondent
would choose for layoff the salesman whose retention
threatened to benefit the Company least. The General
Counsel proposed at hearing that since there were sales-
men whose average commissions as of the end of May
(G.C. Exh. 4) were less than Gilbert's, and since the
commission is a reflection of the profit brought in by the
salesman,2 l it was irrational for Respondent to have used
only a number-of-units standard and to have totally ig-
nored comparative gross profits previously earned by the
salesmen. Much testimony followed this line of inquiry,
with Bruce taking what I found to be the startling posi-
tion that Respondent had no interest at all in encourag-
ing the amount of gross profits achieved by a salesman,
and that the name of the game was strictly numbers.
His explanation, to some extent, made sense: holding
out for too much profit could result in the loss of a cus-
tomer and subsequent bad repute for the firm; a customer
sold even at a low profit is nonetheless a customer, who
then patronizes the service and parts departments, brings
friends in, may potentially buy a used car, etc. The
claim, however, that Respondent has no interest at all in
the amount of gross profits is obviously overdrawn, not
only on its face but as shown by other evidence. Thus, it
was brought out in the testimony of Bruce and Green-
baum that Respondent awards a $25 bonus to the sales-
man with the most number of units sold in every 10-day
period, and pays more bonuses for salesmen who sell 12
and 16 cars in a month, but also gives a $25 award every
10 days to the salesman with the highest single gross
profit sale for that period, and, according to Greenbaum,
gives a bonus for each car sold at full list price.?7 In ad-
dition, Pierorazio credibly testified that Bruce has told
him to "get as much gross profit as I can," and that
Bruce has refused to approve deals with some profit in
them simply because there was not enough profit.
This is another subject about which, as I see it, Re-
spondent defensively went further than it needed to in
disclaiming its interest in gross profits, and, accordingly,
again raised doubts about Respondent's general trustwor-
thiness.
The General Counsel argues expressly for only one
other possibility as a substitute for Gilbert, and that is
Brooke. As indicated, Brooke began employment in
March and thus had only 4 months of sales in the 6-
month period upon which the selection was purportedly
based. In that 4 months, he sold 29 cars, thus averaging
7.25 per month, or slightly better than Gilbert's 6.83 (41
sales in 6 months). On the other hand, as the General
Counsel argues, a flat comparison does a serious disserv-
ice to Gilbert, because computed into his average are the
two "disastrous" (Bruce's word) months of January and
February in which Gilbert sold a total of only nine cars.
For the 4 months in which they were both employed,
Gilbert outsold Brooke by 32 to 29. Brooke also had an
25 Basically, salesmen receive 25 percent of Respondent's gross profit
on a sale.
2' Bruce, surprisingly, testified that he was unaware of this bonus.
235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
average commission for the period March-May of only
$100.88, as compared to Johnson's 5-month average of
$160.59.
At the hearing, Bruce testified that it did occur to him
to compare Brooke and Gilbert only "from the time of
Mr. Brooke's employment until the date [he] decided to
make the layoff," but that he did not do so. Bruce did
not explain his reasons for rejecting such a comparison.
He further conceded knowing in July, however, seem-
ingly in contradiction of the foregoing testimony, that
during their period of common employment Gilbert had
sold more cars than Brooke. In explaining his decision to
favor Brooke, Bruce testified that Brooke was a very
ambitious young man who had been "calling and coming
in" to the dealership beginning in December 1978 to
plead for a job. Brooke is a "[v]ery aggressive, very per-
sonable man. Very clean. Very neat desk. Everything
about him just generally good. Lot of desire and ambi-
tion." The reason Bruce chose to retain Brooke over Gil-
bert was not only that he had a slight edge in average
cars sold for the entire 6-month period (7.25 to 6.83), but
also that "this young fellow showed an awful lot of po-
tential. He had a lot of aggressiveness. He did all the
things that you should do to try to get volume and get
things going, really worked at. He is an ex-policeman.
He hung notices in the police precincts to sell auto-
mobiles. Constantly made phone calls. He is the kind of
young man that you want to represent your organization
to start with."
In my view, as discussed infra, the decision to prefer
Brooke is seriously suspicious. First, however, I shall
deal with an argument advanced by the General Counsel
with respect to the manner of recall of Gilbert.
Bruce testified that "[c]onditions got better in
August," and Respondent decided to increase its staffing.
The General Counsel would infer an unlawful attitude
from Respondent's leisurely recall of Gilbert who, Bruce
testified, he had said "would be the first salesman that
[Respondent] called back."
2 8 I do not think the evidence
is clear enough on this point to warrant such an infer-
ence.
Bruce said that when business seemed to improve in
August, and new 1980 models were about to be unveiled,
he and Greenbaum decided to hire. He placed newspaper
advertisements for salesmen which ran between August
25-September 5. A new man was hired about September
10. Haslett was recalled in "[t]he first part of Septem-
ber." Gilbert, however, did not return to work until Sep-
tember 17; Bruce's explanation for this was that, with the
unfair labor practice complaint pending, Respondent was
advised by its lawyers that they would handle Gilbert's
recall.
A letter in evidence shows, that on August 31, Re-
spondent's attorney notified a Board agent of an uncon-
ditional offer to Gilbert to return to work without back-
pay because "conditions have improved somewhat." By
letter written in September the attorney made an offer of
such employment directly to Gilbert, and he returned to
work on Monday, September 17.
as Gilbert essentially corroborated this testimony: "The desk would be
there waiting for me as soon as things happen-as soon as the economic
situation got better. I would be called back."
The reasoning behind the channeling of the reinstate-
ment offer through counsel seems understandable. That
counsel chose first to communicate to the Board an offer
of reinstatement to Gilbert may indicate nothing more
than personal inexperience.
2 9 In the circumstances, I
would not consider the delay in making an offer of rein-
statement a substantial proof of bad faith. Nonetheless,
the evidence as a whole leads me to conclude that Gil-
bert was the subject of unlawful discrimination.
As discussed, despite the discrepancies between Bruce
and Greenbaum about the value and objective of the
layoff of a salesman in July, it is indisputable that, by the
end of June, Respondent had suffered a drastic decline as
compared to the same period in 1978. It is further a fact
that in June, aside from the other personnel actions pre-
viously noted, Respondent discharged one car salesman
and laid off two others. The legitimacy of those actions
not being in question, I do not, as I have said, see how I
can conclude that Respondent, searching around July to
pull itself out of a net loss position, might not have per-
ceived and welcomed a benefit of some sort in temporar-
ily letting another salesman go. Despite the suspicion jus-
tifiably invited by the failure of Bruce and Greenbaum to
agree on what was to be accomplished by the layoff,
when a businessman is losing money, even the "few hun-
dred dollars" per month suggested by Bruce might seem
an inviting saving.
But it is the very urgency of the need, stated by
Greenbaum, to make every dollar count, which brings
into question the choice of Gilbert for layoff. Of the
salesmen remaining in July, Gilbert and Kress were in
fact the low unit producers for the entire 6-month
period, and the preference given to such a veteran em-
ployee as Kress seems defensible. The decision to favor
Brooke, a new employee, over Gilbert is, however, most
suspect.
It seems to me-I know of no other words for it-to-
tally irrational for Respondent to favor Brooke over Gil-
bert. If the purpose of the layoff was strictly "econom-
ic," as Greenbaum stated, the manifestly sensible choice
for retention was Gilbert. During his 4 months of mutual
employment with Brooke, Gilbert had outsold Brooke
by 32 to 29. As of the end of May, in addition, Brooke's
average commission was substantially smaller than Gil-
bert's, $100 per car compared to $160.30 Moreover, Gil-
29 Counsel represented at hearing that, after writing to the Board on
August 31, he received notice from a Board agent that the reinstatement
offer should be made directly to Gilbert, which counsel subsequently ac-
complished on September 11.
so Since the commission represents a percentage of the gross profit
made by Respondent, this means that Respondent was earning 60 percent
more on each car sold by Gilbert. Every car sold by Gilbert, that is, af-
forded Respondent some $480 of gross profit; every car sold by Brooke
gave Respondent a return of only $300. Although Respondent's witnesses
testified that they were unaware of these figures (Bruce said, "At the
time, I don't think so"), I cannot believe that they were ignorant of such
a substantial difference between the records of the two men.
G.C. Exh. 4 shows that as of the end of May (the latest figures in evi-
dence), Gilbert had the fifth highest average commission of the 11 sales
men shown on the exhibit. Salesman Hagner is, for unknown reasons,
omitted from the exhibit. At that time, Gilbert ranked ahead of Pierora-
zio, Dugan, Haderman, Ziehl, Brooke, and Haslett in average commis-
sions. Another conceivable choice for layoff, on the objective facts, but
Continued
236
SUBURBAN CHEVROLET, INC.
bert had been with Respondent for almost 4 years as of
July 1979, and Brooke just 4-1/2 months. While the dif-
ference in their seniority was not as marked as that be-
tween Gilbert and Kress, it surely seems significant
enough to have warranted the kind of consideration re-
ceived by Kress.
After careful study of the evidence, I simply cannot
accept Bruce's testimony. If, in fact, he examined Gener-
al Counsel's Exhibit 2, the summary of new-car sales, for
the purpose of choosing for layoff the salesman whose
departure would least exacerbate Respondent's serious fi-
nancial situation, there simply would be no sensible basis
for singling out Gilbert rather than Brooke. This conclu-
sion may be attacked as an attempt to substitute my own
judgment for Respondent's. I think it may be regarded,
as the General Counsel argues, as an analysis of Respon-
dent's action by its own declared standard and as a credi-
bility resolution that Respondent is not being truthful.
Greenbaum said that the purpose of the layoff was for
"economic reasons"; "when you're losing money you do
everything you can to try to turn it around." Given Re-
spondent's truly serious financial situation, which it
pressed with great vigor at the hearing, I do not believe
that it would ordinarily have passed over for temporary
layoff a new employee of 4 months tenure and chosen in-
stead a 4-year veteran who had outsold, both in units for
the 4-month period and gross profits for 3 of the 4
months shown, the new employee. That simply makes no
objective sense in the light of the purpose stated by
Greenbaum. 3 ' Moreover, the seniority consideration
given to Kress was simply ignored when it came to Gil-
bert. That the preference was given to a 4-month em-
ployee over a 4-year one is rather hard to reconcile with
Bruce's testimony that he was "emotional" in parting
with Gilbert.3 2
The evidence leads me to believe that Gilbert would
not have been chosen for layoff in more neutral circum-
stances. Section 10(b) requires that a violation be made
out by "the preponderance of the testimony taken," and
I think that the General Counsel has carried that burden.
In so concluding, I rely on the great likelihood that Re-
spondent recognized that Gilbert was an important union
partisan; on the depth of Respondent's antipathy to
unionization, as disclosed by statements of its representa-
tives; on the general aura of untrustworthiness spawned
by the often contradictory and exaggerated testimony of
its witnesses; and on the inexplicable and implausible de-
viation between its stated purpose for laying off an em-
not argued by the General Counsel, was Ziehl. At the end of May, he
had sold 40 cars at an average commission of $120.01, and Gilbert had
sold 34, with an average commission of $160.59. In June, however, Ziehl
sold only two cars, and Gilbert sold seven. Assuming a continued ratio of
commissions, by the end of June Gilbert had yielded Respondent a gross
profit, on the sale of 41 cars, close to $5,000 more than Ziehl had.
3' And to the extent that Bruce took into account Brooke's aggressive-
ness and potential, that is both a long term prospect, having little to do
with the immediate needs of the business, and a departure from his asser-
tion that he applied a "mechanical" test.
32 It has been held that "ignoring seniority" is a factor properly con-
sidered in finding an 8(a)(3) violation. N.LR.B. v. American Casting Ser-
vice, Inc., 365 F.2d 168, 172 (7th Cir. 1966).
ployee in July and the action taken to accomplish that
end.3 3
CONCLUSIONS OF LAW
1. Suburban Chevrolet, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Retail Store Employees Union, Local 692, United
Food and Commercial Workers International Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By laying off C. Gilbert Johnson on July 17, 1979,
Respondent violated Section 8(a)(3) of the Act.
4. By making an unlawful threat to close the business,
by coercively interrogating an employee, and by at-
tempting to engage in surveillance of a union meeting, all
in 1979, Respondent violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Other than as set out above, Respondent has not
violated the Act as alleged in the amended complaint in
this case.
THE REMEDY
In order to remedy the unfair labor practices found
herein, I shall recommend that Respondent be required
to cease and desist therefrom and take certain affirmative
action.
Having found that Respondent discriminatorily laid off
C. Gilbert Johnson on July 17, 1979, I shall recommend
that Respondent be ordered to make Johnson whole for
any loss of earnings he may have suffered from the time
of his termination to the date of his reinstatement.3 4 His
backpay shall be computed in accordance with F. W
Woolworth Company, 90 NLRB 289 (1950), with interest
as prescribed in Isis Plumbing & Heating Co., 138 NLRB
716 (1962), and Florida Steel Corporation, 231 NLRB 651
(1977).
I shall also recommend that Respondent be required to
post appropriate notices.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
33 There is, in addition, the fact that when Gilbert was laid off he was
not, as Haslett was, given an opportunity to remain affiliated as an "out-
side" salesman and to keep his demonstrator car. There is no evidence to
contradict Respondent's claim that Haslett asked for these privileges and
Gilbert did not. Nonetheless, the precedent having been set by Haslett
only a month before, it would seem normal, if Bruce were as "emotional"
about Gilbert's departure as he purported to be, that such an offer would
be made to Gilbert. Moreover, as the General Counsel argues on brief.
the fact that Greenbaum counted savings on the demonstrator as a benefit
from Gilbert's layoff indicates that Gilbert would not have been afforded
that privilege had he asked for it.
I note also Gilbert's unchallenged testimony, which I accept, that
shortly after the election Bruce stated, in the presence of George Pre-
vost, that "they would have to work harder to keep the Union out of
there, even though we had won the election." The necessary implication
is that Respondent would continue to take steps thought necessary to
prevent the Union from becoming a viable representative.
34 It seems clear that Johnson was otherwise fully reinstated when he
returned to work on September 17.
237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER3 5
The Respondent, Suburban Chevrolet, Inc., Baltimore,
Maryland, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Laying off or otherwise discriminating against em-
ployees for assisting Retail Store Employees Union,
Local 692, United Food and Commercial Workers Inter-
national Union, or any other labor organization, or for
engaging in other union activity.
(b) Coercively interrogating employees about their
union sympathies and activities, threatening employees
with reprisals for exercising rights guaranteed them by
the Act, and attempting to engage in surveillance of
union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, or to engage in
concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from
any and all such activities.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
as 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.
(a) Make C. Gilbert Johnson whole 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, social security records, timecards, per-
sonnel records and reports, and all other records neces-
sary or appropriate to analyze the amount of backpay
due.
(c) Post at its place of business at Baltimore, Mary-
land, copies of the attached notice marked "Appen-
dix." 36 Copies of said notice, on forms provided by the
Regional Director for Region 5, after being duly signed
by Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices
are not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that all complaint allegations
found here not to be substantiated be, and they are, dis-
missed.
36 In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
238