"Z" Frank, Inc.

National Labor Relations Board - Board Decisions

Sep 23, 1968

172 N.L.R.B. 2187 (N.L.R.B. 1968)

"Z" FRANK, INC.
"Z" Frank , Inc. and American Federation of Profes-
sional Salesmen Organizing Committee, Local
5056 , Communications Workers of America,
AFL-CIO.' Case 13-CA-8119
September 23, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On May 22, 1968, Trial Examiner William Seagle
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had not engaged in
certain alleged unfair labor practices and recom-
mending that the complaint herein be dismissed in
its entirety, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Counsel
filed exceptions to the Decision, together with a
supporting brief. The Respondent also filed excep-
tions to the Decision and a brief in opposition to
the General Counsel's exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety,.
' The erroneous designation of the labor organization, as set forth in the
complaint, was corrected at the hearing by a motion to amend the com-
plaint
' In our view the record does not support the Trial Examiner's conclu-
sion that Sales Manager Jacobs' resolve to get rid of the alleged dis-
crimmatee, Berman, had its genesis in the so-called "window" dispute over
salesmen's commissions We agree with the Trial Examiner's ultimate con-
clusion that a preponderance of the evidence does not support a finding
that Berman's discharge was discriminatorily motivated
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM SEAGLE, Trial Examiner: Upon a charge
filed on November 13, 1967; a complaint issued by
2187
the Regional Director for Region 13 on January 26,
1968, in which it was alleged that the Respondent
had violated Section 8(a)(1) and (3) of the Act;'
and the answer of the Respondent denying the
commission of any unfair labor practices, I heard
this case at Chicago, Illinois, on March 4 and 5,
1968.
Subsequent to the hearing, counsel for the
General Counsel and for the Respondent filed
briefs with the Trial Examiner, who has duly con-
sidered the same.
Upon the record so made, and in view of my ob-
servation of the demeanor of the witnesses, I
hereby make the following.
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent, "Z" Frank, Inc. (hereinafter
referred to as "Z" Frank), is an Illinois corporation
which has maintained its principal office and place
of business at 6116 North Western Avenue,
Chicago, Illinois, where it has been engaged in
selling and servicing Chevrolet automobiles and
trucks. The Respondent also has a place of business
at 2050 Peterson Avenue, Chicago, Illinois. At both
the North Western and Peterson Avenue locations,
the Respondent maintains a new-car showroom and
a used-car lot but servicing is performed only at the
North Western Avenue location. In terms of
volume "Z" Frank is the largest Chevrolet dealer in
the country, but in terms of available square
footage, it is only the second.
During the past calendar or fiscal year, each of
which is a representative period, the Respondent, in
the course and conduct of its business operations,
received automobiles and automobile parts valued
in excess of $50,000, which were shipped to its
above-mentioned places of business directly from
points in States of the United States other than the
State of Illinois. During the same representative
period, the Respondent had a gross volume of busi-
ness in the sale and servicing of automobiles in ex-
cess of $500,000.
The Respondent admits that at all material times
it has been an employer engaged in commerce and
that its operations affect and have affected com-
merce within the meaning of Section 2(6) and (7)
of the Act, and I so find.
II. THE LABOR ORGANIZATIONS INVOLVED
American Federation of Professional Salesmen
Organizing Committee, Local 5056, Communica-
' Specifically it was alleged in the complaint, as amended, that the
Respondent had violated Section 8(a)(1) of the Act by interrogating
its employees concerning their union membership, activities, and de-
sires, and Section 8(a)(3) of the Act by discharging Herbert Berman,
and Clifton Woodall, two of its employees, because they had engaged in
union activities or other protected concerted activities No independent
evidence of interrogation was offered, however, and the sole issues in the
case are, therefore, whether the Respondent discriminatorily discharged
Berman and Woodall
172 NLRB No. 254
2188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Workers of America, AFL-CIO, which is the
Charging Party in the present case,' is no longer in
existence. As authorized by its constitution, the
Communications Workers of America (hereinafter
referred to as CWA) issued a charter on November
1, 1967, to the Organizing Committee, consisting of
Edward A. Disch, one of its representatives, who
headed the committee, and of Robert Camaron,
Merlin W. Griffith, and John Golden, who served as
members of the Committee. The jurisdiction of the
Committee was to extend to salesmen employed by
any new- or used-car dealers in automobiles,
trucks, or other motor vehicles in the States of Il-
linois, Indiana, and Wisconsin. However, the
charter issued to the Organizing Committee was re-
called and the Committee was officially dissolved as
of January 31, 1968. This action was taken by the
CWA on the recommendation of its vice president,
A. B. LeFevre, on the ground, apparently, that in-
sufficient interest had been shown in the organiza-
tional attempt. The revocation of the charter and
the dissolution of the Organizing Committee did
not lead, however, to the termination of the or-
ganizational efforts of Camaron, Griffith, and Gol-
den and a successor organization known as the
American Federation of Professional Salesmen
came into existence3 and has continued the or-
ganizational efforts. It has indeed filed about 55
representation petitions with the Regional Office of
the Board in Chicago.
Counsel for the Respondent contend that the Or-
ganizing Committee and the American Federation
of Professional Salesmen are not labor organiza-
tions and that they should be denied relief because
they have engaged in price-fixing schemes in
"flagrant" violation of the Sherman Act. This con-
tention seems to be based on the alleged fact that
the Committee and the Federation in negotiations
with employers sought to fix salesmen's commis-
sions and other charges and expenses of doing busi-
ness over and above the manufacturer's list prices
for the automobiles sold. I do not deem it to be
necessary, however, to determine whether the
Committee and the Federation violated the an-
titrust laws, or were exempt from the reach of such
laws by the labor exemption in the said laws. Even
if the Committee and the Federation violated the
antitrust laws, this in itself would no more establish
that they were not labor organizations than the
violation of the antitrust laws by the XYZ Corpora-
tion would establish that it was not a corporation.
I find that at all material times the American
Federation of Professional Salesmen Organizing
Committee, Local 5056, CWA, was, and that the
American Federation of Professional Salesmen is, a
labor organization within the meaning of Section
2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Operation of the "Z" Frank Establishment
The "Z" in "Z" stands for "Zollie," the given
name of the president of the corporation and the
chairman of its board of directors. At the time of
the events involved in the present proceeding, how-
ever, he was no longer in active charge of the "Z"
Frank business. On September 22, 1967, which was
the very day that the Chevrolet new-car models
came out that year, one Curtis W. Brown became
general manager and vice president of "Z" Frank
and was directing the business. An industrial en-
gineer, Brown had started in the automobile busi-
ness with Ford in 1943, and then spent about 10
years with Chevrolet in retail operations. Hwever,
just before coming to "Z" Frank, he had been with
Chrysler.
Since "Z" Frank is the largest Chevrolet dealer
in the country in terms of volume, and operates at
different locations, it is not surprising that it has
had a rather large number of sales managers and
salesmen. The latter are hired either as new-car or
used-car salesmen but, on occasion, apparently, a
new-car salesman may sell a used car, or a used-car
salesman may sell a new car. At the North Western
Avenue location, there were at the time of the
events in the present proceeding three sales
managers in the new-car department; i.e., Lester
Simms, Carl J. Abbate, and James L. Polera. At the
North Western Avenue used-car lot and office
there were at the same time two used-car sales
managers, Robert J. Jacobs and Raymond Brenner,
the latter of whom did the appraising and buying of
used cars.
A peculiarity of the managerial hierarchy of "Z"
Frank is perhaps that no sales manager has authori-
ty to discharge either a used-car or a new-car
salesman. A discharge of a salesman requires the
personal approval of Brown, as formerly it required
the personal approval of Zollie Frank. Brown stated
the reason for this policy when he testified: "It's not
our policy to try to fire salesmen. They are too hard
to get. So we sometimes go along quite extensively
to try to develop a man." As a result of this policy,
sales managers have been discouraged from
discharging salesmen and have been encouraged to
give them the opportunity to correct any defects or
faults. Brown testified. "I have had managers come
to me wanting to discharge people. I've said, `Let's
find out what the man's problems are and let's try
to work with them."' The "Z" Frank management
also seems to have had a policy of discouraging the
movement of salesmen between the North Western
Avenue and Peterson Avenue locations.
' The designation of this labor organization in the caption of the com-
plaint is erroneous It was duly corrected by a motion made at the hearing
'This was accomplished at a meeting at the Conrad Hilton Hotel in
Chicago on January 28, 1968, at which a motion was made from the floor
that the American Federation of Professional Salesmen should disaffiliate
from the CWA, and that Local 5056 should be eliminated from the title of
the organization A committee was also appointed to draw up a constitu-
tion and bylaws for the new organization and for the nomination of officers
thereof Thus the American Federation of Professional Salesmen is an in-
dependent
"Z" FRANK, INC.
The aggressvive sales policy of "Z" Frank seems
to be aimed at producing persistence on the part of
its salesmen and sales managers . The chief feature
of this policy seems to be the T. O. system. If a
salesman who is handling a customer finds himself
unable to make the sale , he is expected to "turn
over" (T. 0.) the customer to one of the sales
managers before allowing the customer to leave. As
Brown explained the reason for this system: "We
place a price on each customer coming through the
door and we have to assume that every person that
walks through these doors is there to buy a car. So
to retain our investment in advertising it is almost a
necessity that every effort may be made to sell the
customers even though he makes such statements
as "I'm only here to look, I'm only browsing
around , I'm on a Sunday drive." Brown described
such people as "car kickers ," and added, "They
come in and like to kick the tires. I don't know
what thrills they get out of this, but we have seen
those people converted to buyers by the right
procedures and the right methods." Apparently,
these methods include what Brown described as an
injection of "one little item" that closes a deal.
After a deal has been consummated , the customer
is usually turned over to the finance manager to
work out the terms of credit, for, approximately 70
percent of all automobiles sold by "Z" Frank are
sold on a time payment plan. The present finance
manager is one Robert Arenson, and an altercation
in which he was involved with one of the new-car
salesmen in working out the terms of a deal illus-
trates the importance of the credit factor.'
The T. O. system is also applicable to the sale of
used cars but the sale of such cars presents some
additional problems . A good new-car salesman does
not always make a good used -car salesman, and
vice versa . Some salesmen do not like to sell used
cars because most of them are in an outside lot and
may have to be shown to customers in cold
weather. "Z" Frank maintains a comfortable used-
car office on the lot but the salesmen may have to
leave the office to show cars , since only about 25
percent of the used cars are indoors . However, the
chief problem in the sale of used cars seems to have
been in connection with the "window" system.
Each car has a price that is marked on the window
in code . The mark tells the salesmen what price he
is expected to get for the car but does not reveal
this price to the prospective customer . A salesman
who sold a car at the "window" was, until about the
middle of October 1967, allowed a commission of
$50 but if he succeeded in selling the car at a price
that was higher than the window he received 27
percent of the difference.
After this time, a change was instituted that
limited the used -car salesman 's commission to the
$50 but if he succeeded in selling the car at a price
of the used cars had, apparently, been marked up.
2189
These changes seem to have led to dissatisfaction
among the used -car salesmen . One of them sug-
gested that they select someone to act as their
spokesman by tossing their demonstrator keys in a
hat. But Herbert Berman , one of the used-car
salesmen , seems to have aborted this concerted ef-
fort by declaring: "I don't need any one to do my
talking ." Berman went to see Brown individually
about the matter , and, according to Berman, Brown
promised to talk to Jacobs and Brenner and arrange
a meeting but no meeting ever came about.
Another of the used-car salesmen, whose name
was Al Barnett , also went to see Brown individually
about the change in the window system.
In addition to new and used cars , "Z" Frank also
sells Chevrolet trucks. These range from 1/2-ton to
3-ton models . A truck could cost as much as
$15,000 but the prices of most trucks range between
$2,700 and $2 ,900. In terms of unit sales, the sales
of trucks amount , however, only to about 1-1 /2
percent "Z" Frank 's business . As a rule, the
salesmen do not like to sell trucks, and usually T.
0. the prospective customer to the truck sales
manager, in which case they receive one -half of the
commission.
During the years 1966 and 1967, the number of
salesmen employed by "Z" Frank ranged between a
high of 25 and a low of 19, the average number of
salesmen being about 22. But in October 1967,
there were only six used -car salesmen whose names
were Al Barnett, Gene Jasper , Leon Stratton, Hi
Sanders, Ed Fasone , and Herbert Berman.
Although a considerable number of the new-car
salesmen had been with "Z" Frank for many, many
years, only one of the used -car salesmen , Jasper,
had any thing like a comparable seniority, and he
had been with "Z" Frank only since April 1961.
To prevent the collision of salesmen taking care
of customers "Z" Frank follows what is known as
the "up " system . The names of the salesmen appear
on a list , and the salesman whose name is at the
head of the list has the first crack at the prospective
customer who walks through the door unless he
happens to be the previous customer of another
salesman. The salesman who has waited on the
prospective customer then goes to the bottom of
the list. It should be noted , however , that in this
system it is the customer rather than the salesman
who is called the "up." In times of bad business,
when customers were relatively scarce , the "up"
system produced considerable grumbling among
the salesmen , especially when a new salesman was
put on the showroom floor.
B. The Employment History of Berman and Woodall
Both Herbert Berman and Clifton Woodall
were recently hired salesmen at "Z" Frank. Berman
had been hired as a new-car salesman on June 8,
' The details of the altercation are set forth in connection with the
discussion of the case of Clifton Woodall, infra
2190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1967. Clifton had had two periods of employment
at "Z" Frank but the first period had not begun
until March 1966.
Berman gave a rather obscure account of how he
had come to be employed as a new -car salesman
rather than as a used -car saleman at "Z" Frank. In-
deed his account is not only obscure but not par-
ticularly modest , despite his attempt at humor. He
attempted to convey the impression that the sales
managers had been in flux at the time that he had
been hired , and that there had been considerable
competition for his services . He testified that even
before he had been hired , Abbate had wanted to
put him in the used -car lot . But for a reason
Berman never clearly explained , he had been put
on selling new cars when he had finally reported for
work After he had been employed about a week,
Berman testified, Simms had approached him and
had told him that Jacobs , who would be made a
used - car manager , needed another salesman on the
used -car lot , and that both Jacobs and Harry Som-
merfield, who was then a used -car manager, had
wanted him to go over to the used -car lot . Berman,
it seems, had declined the offer because Jacobs had
not wanted him originally " I sold a few cars," he
testified " Now he thinks I'm a genius, and now he
wants me "
Nevertheless , Berman had not remained a new-
car saleman very long Either late in September or
early in October- according to Berman the event
occurred on October 3 or 4- he had been trans-
ferred to the used -car lot to work under Jacobs
whom he, apparently , did not like too much
Berman 's own account of how he came to be trans-
ferred to the used-car lot is just as obscure as his
account of how he had been put on new cars when
he had first been hired . Berman testified that
toward the end of September Brenner , who had
moved across the street as a used -car manager, had
constantly told him that he wanted him to accom-
pany him there, and, apparently , all that he would
tell Brenner , an old friend of his whom he had
known for 20 years, had been that they would talk
about it some more But when asked directly- "How
did it happen that you eventually went to used car
sales?", Barman replied "I really don't know." The
best that Berman could do was to compare his
transfer to a baseball swap that sent a salesman
known as " Buddy" Sudikoff to new cars while he
went to used cars . Typically, Berman did not
neglect to mention that when he had left the new-
car department Simms had told him that if he was
ever unhappy there he would always be welcome
on the new-car side.
Brown when questioned about Berman 's transfer
from selling new cars to selling used cars gave an
explanation that had the merit at least of being in-
telligible . Brown testified that Berman , whose sales
were not regarded as commensurate with those of
other salesmen, was transferred to the used -car lot
in the hope that he would be more productive
there , and also because the new -car floor was over-
loaded with salesmen , while the used -car lot was
short a salesman . This condition may have been the
basis for Berman 's analogy to the baseball swap.
When Woodall had been first employed by "Z"
Frank in March 1966, it had been both as a new-
and used -car salesman at the Peterson Avenue lo-
cation . He had worked there until mid-October
1966 when he had left voluntarily to become sales
manager at Glenview Plymouth at Glenview, Il-
linois, where he had previously been employed. It
seems, however , that Glenview Plymouth had soon
been sold and the new owner had brought in his
own crew . Woodall had been out of a job again and
had sought reemployment at "Z" Frank . In this ef-
fort he had made little headway with the sales
managers to whom he applied. According to
Woodall , they kept telling him that their hands
were tied , and he , apparently , had attributed this to
the "Z " Frank policy of discouraging movement of
salesmen between the Peterson and North Western
Avenue locations . Woodall had finally been rehired
at North Western Avenue in the first week of April
1967, but this was due to the personal intercession
of Brown , who had overriden the objections of the
vice president at Peterson Avenue whose name was
Leavitt . According to Brown , Leavitt had objected
to reemploying Woodall because of some of the Tat-
ter's bad habits, which included prolonged lunch
periods, drinking to the point where intoxicating
liquor could be detected on his breath , and his
general uncooperativeness with the sales managers.
C. The Organizational Attempt at "Z" Frank
Camaron, Griffith, and Golden , the three mem-
bers of the CWA Organizing Committee , launched
their organizing campaign at "Z" Frank on
Tuesday, November 7, about noon . Carrying en-
velopes, in which were enclosed applications for
membership in the American Federation of Profes-
sional Salesmen and a green brochure, in which
were set forth the union 's conception of the
benefits of union membership, the three members
of the Organizing Committee made their first stop
at the office for about 20 minutes. While they were
there they talked to the used -car salesmen , who in-
cluded Herbert Berman , Gene Jasper, Edward
Fasone , and Al Barnett , and left with each of them
an envelope that contained a membership applica-
tion card and the green brochure. Camaron and
Berman testified that an envelope was also given to
Brenner , although Camaron was told by Berman
that Brenner was one of the used-car sales
managers . Camaron also testified that Brenner not
only made no effort to interfere with the activities
of Griffith , Golden , and himself but took the litera-
ture into the back room to read it . While Brenner
admitted that on November 7 he saw "three gent-
lemen in there ," he denied that he knew what their
mission was or that they gave him any literature to
read . After leaving the used -car office , Camaron,
"Z" FRANK, INC.
Griffith, and Golden went across the street to the
new-car showroom and spent some time there, after
which they proceeded, apparently, to the Peterson
Avenue location of "Z" Frank to do some more
soliciting.
Berman was acquainted with Golden, one of the
three members of the Organizing Committee,
although he had not seen the latter for some 10
years when Golden was a sales manager at
Gardener Dodge-Plymouth and he was a salesman
there. The two men now had a conversation about
the union and Berman testified that after Golden
left with his companions he told the other used-car
salesmen that he knew Golden and could vouch for
him, and that if Golden was connected with the
Union " it might have some merit." Berman further
testified that he then went across the street to the
new-car showroom because he had to make a
delivery of a new car; that he then again encoun-
tered Golden as he was coming out; that Golden
asked him to distribute some envelopes to salesmen
who were off that day; and that he agreed to do so
and did do so. According to Berman , the used-car
salesmen also discussed the Union among them-
selves after Camaron, Griffith, and Golden had left
but when Brenner would pop in, they would fall
silent and wait to pick up the conversation when he
had left. Berman signed one of the Union's mem-
bership application cards that day, and he testified
that Barnett , Fasone, and Stratton also did so and
Barnett mailed all of the cards to the union office.
The cards of Barnett, Fasone, and Stratton were
not produced by counsel for the General Counsel,
however, nor were these salesmen called by him as
witnesses to corroborate Berman 's testimony.
There is no doubt, however, that on the same day
Berman solicited Woodall to sign a union member-
ship application card, and that the latter signed a
card the next day, November 8. Woodall had been
on the afternoon shift on November 7 and had not
reported for work, therefore, until shortly before 3
p.m. that day. When Berman talked to Woodall
about the Union, he told the latter about the visit of
the union committee and about one of the fellows
in the group who was an old friend of his and was
to be trusted but, apparently, Woodall did not take
everything that Berman told him entirely on faith,
for he called a friend of his own to check with the
latter about the Union. This friend was one Bill
Lee, who was either the president of the Chicago
Federation of Labor or of the Greater Chicago
Labor Cuncil. But Lee was not in when Woodall
called, and the latter was left to discuss the Union
with the other salesmen and read the literature that
had been left on his desk before he signed the
union membership application card. Woodall
testified that on November 8 and 9 he in turn dis-
tributed to other salesmen three or four member-
ship application cards which he had obtained from
Berman.
According to Berman , on November 8, the day
that Woodall signed a membership application
2191
card, he himself had to struggle against the fears of
the salesmen that their support of the Union might
result in their losing their bonus money. Berman
testified that when he arrived for work that day
about 10:30 a.m., at a time when Jacobs was not
present and Brenner was in another office, two of
the used-car salesmen, Jasper and Burnett, were
discussing the Union with Joe Weiner, one of the
Peterson Avenue salesmen, who was advising them
to "cool it" a while because the following month
was bonus time and some of them stood to blow up-
wards of $1,000 in bonus money. According to
Berman , he remarked to Weiner: "If they are not
concerned about blowing $1,000, why should
you?" At this point, testified Berman , Brenner, who
had been engaged in hiring another salesman by the
name of Robert Smith in order to replace a
salesman who had left, emerged from his office,
and the following remarks were exchanged between
them:
Brenner: I hear you are the steward.
[Emphasis supplied. ]
Berman: Steward? What kind of shot is
that? You better get off that kick, Ray. As far as
I know, there's not even a union here. I wish
you wouldn't go around giving that blast like
that there. I don't know anything about it.
Brenner : "Well, that's what I hear."
Brenner did not deny that he had a conversation
with Berman about this time, in which the latter's
alleged union stewardship was mentioned, but, ac-
cording to Brenner, it was Berman who initiated the
conversation, and he himself was only joking. Thus,
Brenner testified:
He made one remark to me out of the clear,
blue sky. He said to me, "Brenner, wait until
the union gets in here," something like that.
And I said to Berman in a kidding way, I said,
"Why? You going to be the stop steward."
And we laughed and that's all that was said
about it. That's all that was ever said about a
union.
D. The Discharges of Berman and Woodall
That same day, November 8, Jacobs and Brenner
went out to lunch together and discussed the
discharge of Berman , to which Brenner now inter-
posed no objection , although on several previous
occasions he had told Jacobs that Berman might
still work out. Returning from lunch, Jacobs called
Berman into his office , and, according to the latter,
told him : " Herb, I don't think that you fit into this
picture ." When he asked for an explanation , Jacobs
told him that his productivity was too low and he
had hired another salesman and would have to let
him go. Berman sought to defend his productivity
but in vain . Finally, Berman asked Jacobs whether
he would have any objection to his returning to
work in the new-car department again under
Simms. According to Berman , Jacobs said that
2192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since it was close to bonus time he would talk to
Simms about making room for Berman in the new-
car department, and went across the street, after
which he returned in 10 or 15 minutes and told him
that Simms wanted to see him ; when he saw Simms,
and Simms questioned him about whether he had
not had "some beef" over in the used-car depart-
ment , he asked Simms. "Les, does this have
anything to do with the Union?", and Simms
replied: "Well, I heard you all signed up over
there ." But, after checking with Polera , Simms told
Berman he could work in the new -car department.
According to Jacobs, however, he told Berman that
he was letting him go because of his laziness and
low productivity, and when Berman asked him
whether he could finish the month , he had said no
but pointed out that his decision was subject to
Brown 's approval and then, when Berman asked
whether he could go to the new -car department, he
merely said that it was across the street and it was
up to him. Simms denied that he had made any re-
mark to Berman indicating that the Union was the
cause of his dismissal but Simms admitted that he
had told Berman that he could come over to the
new-car department " until we could straighten out
the situation."
The "situation " arose from the fact that at this
time Brown , without whose approval Berman could
not effectively be discharged , was in Florida with
Zollie Frank attending some kind of an affair which
he described rather confusedly as "a convention or
a seminar on fleet sales " and also as a convention
of National Car Dealers. Brown had left for Florida
on Thursday, November 2, and he did not return to
Chicago until Thursday, November 9, arriving by
plane about 5:30 p.m. that day. Although Brown
was in Florida during the period mentioned, he
kept in daily touch, however, with events at "Z"
Frank. When Brown called on Thursday, November
9, his secretary told him , he testified, that "there
had been a little problem involving Berman," and
suggested that he talk to Simms. When Brown did
so, Simms informed him that there was some
problem about rehiring Berman , and Brown re-
marked . "What do you mean rehiring Berman? I
didn't know he had been fired." Simms explained:
"I can't say he's fired or he's rehired, but all I can
tell you, I brought him over here , I thought I was
doing right in your absence , not to let him leave the
premises until you could get back and make the
final decision." Brown told Simms: "Well, you
were right," and asked to be switched back to
his secretary who suggested that he had also
better talk to Jacobs. When he did so, and asked
Jacobs what the problem was, the latter explained
that he had thought it best to get rid of Berman
after calling the latter in "about his productivity,
general attitude, his cooperation, and so on."
Brown testified further that he told Jacobs that
the new-car salesmen were griping because
Berman was now across the street working, and
that he instructed Jacobs to send Berman home but
let him keep his car until he could return, which
would be the next afternoon . Simm's version of his
telephone conversation with Brown in Florida was
in substance the same as Brown 's but Jacobs added
an additional detail to the effect that he told Brown
that he thought that his decision should be upheld
in order that he would not lose face before the
other salesmen . Berman himself testified that on
the day of his discharge by Jacobs the latter spoke
to him as he was going out to dinner and told him
that Brown had called him from Florida and told
him that he did not want Berman transferring back
and forth and that he could not work on the new-
car side . Berman testified further that he then ac-
cused Jacobs of changing his mind and went to see
Simms who told him: "Well, Brown ate my fanny
for overruling Jacobs."
Berman was granted an interview with Brown
Friday afternoon , November 10. As usual, the
testimony of Brown and Berman is not in agree-
ment as to what was said during the interview. Ac-
cording to Berman , after exchanging some pleasan-
tries about Brown 's stay in Florida , Brown re-
marked : " Herbie , what 's going on. I hear you've
been a bad boy over there, " and he then attempted
to justify himself, and pointed out that he was in-
terested in working because he had two boys in col-
lege. Berman also testified that he reminded Brown
how he had been helpful to the Company in getting
a salesman to work who owed the Company money,
and how he had helped to squelch the "window"
dispute by coming in to talk to Brown individually.
According to Brown, he told Berman that he
wanted to get his side of the story because he
wanted to treat everybody fairly, and that Berman
then told him how Jacobs had called him in and
had "got on him about his sales and his produc-
tion ." In this interview, Berman , apparently,
revealed to Brown that Jacobs had made the re-
mark about his being a union steward , and com-
plained bitterly that he was ruined because the
word " is all up and down the street that I'm a union
organizer ." The next morning , Brown testified, he
had separate interviews with Berman and Jacobs
and Brenner, and Jacobs reiterated his stand that
his hand must be upheld if Brown wanted him as a
manager despite a reminder from himself that they
were making a decision about a man who had a
family and who claimed to be a life-long friend of
Brenner . Brown then called Berman in again and
informed him that he had no alternative but to
uphold Jacobs and to discharge him. Berman's
testimony with respect to his interview with Brown
differs from that of Brown primarily in that he tried
to show that he was being discharged because of his
union activity . Berman testified that he asked
Brown to explain why , after he had left Brown the
day before, every salesman received , they knew not
from where, a brochure entitled " Focus on News,"
which was a report of a series of antiunion articles
from the Chicago Tribune published by the Em-
ployers Association of Chicago. According to Ber-
"Z" FRANK, INC.
man, when Brown declared that he had no objec-
tion to any union , and that he had rather enjoyed
the bargaining when he worked at Ford's, Berman
asked : " If there 's no objection to the union, why
am I fired?"
Since the discharge of Berman was a rather
protracted process, Woodall was able to observe
some of the incidents that accompanied it and to
interest himself in what was happening to Berman.
When Woodall saw Berman carrying his belongings
from the used -car lot to the new-car showroom, he
asked the latter what had happened , and Berman
told Woodall that he had been transferred back to
new cars . When a little later Woodall saw Berman
packing his belongings up and taking them home,
he inquired again what had happened , and Berman
told him : " I guess I'm fired . I can't work here no
more ." At the time Berman would say no more but
promised to call Woodall about it. On Thurs-
day, November 9, Woodall heard that Berman
would be at the union hall on North Sheridan
Road in Chicago, and during his lunch hour
Woodall went over there. He found Berman there,
as well as Camaron, Griffith, and Disch, the
CWA representative , and they all discussed what
had happened to Berman.
On Friday, November 10, Woodall was due to
report for work at 3 p . m. But he came in earlier,
about 1:15 p.m., to collect his "draw " against com-
missions which was paid by check every Friday, and
found on his desk two copies of " Focus on News,"
which he read after he had gone out to get a hair-
cut. When he returned to the "Z" Frank showroom
he found other salesmen reading " Focus on News."
About 6 p.m. that same day, Woodall telephoned
Berman from his desk in the showroom and talked
to the latter for about 5 minutes . Woodall testified
that at one point in his conversation with Berman
he happened to look back and saw Abbate, one of
the new -car sales managers , standing a few steps in
back of him , and that when Abbate perceived that
he had been observed , he immediately walked off
to the telephone switchboard room . Abbate denied,
however , that he had been standing behind
Woodall when the latter was making the telephone
call to Berman or that he had retreated into the
switchboard room . About 8 p . m. that same day,
Woodall was summoned to Abbate's office and
discharged by the latter.
Woodall testified that about 8 p.m. he saw Leo
Levinson , one of the new-car salesmen , emerge
from Abbate 's office and heard Levinson remark:
"Well, boys , I'm finished ." Shortly thereafter,
Woodall himself was summoned to Abbate 's office
for his discharge interview . According to Woodall,
Abbate told him: "Well , we are going to have to let
you go ," and that when he asked why , Abbate
merely reiterated : " Well, we are just going to have
to let you go. No reason, we are just going to have
to let you go . Turn your keys in to the car, get off
the premises . Get your stuff and get off the
premises immediately ." Woodall also testified that
2193
when he asked to be allowed to keep his demon-
strator car until the morrow , so that he could take
his stuff home , Abbate denied his request and told
him that such were his orders . Abbate testified,
however , that when he discharged Woodall, after
obtaining Brown 's consent to do so in a conference
with the latter held that day about 6 p.m., he told
Woodall that he was being discharged "because of
conditions of business , cut down on sales, cut down
on cars, " and that when he added: " We are going
to cut the floor down to two men because of busi-
ness," Woodall remarked : "Well, you're not doing
it because of business ; you're doing it because I be-
long to the union ." Abbate also testified that
although he would not let Woodall keep his car he
offered to have one of the porters drive him home.
E. The Reasons Assigned for the Discharges of
Berman and Woodall
According to Brown, Berman and Woodall were
selected for discharge for reasons that were basi-
cally different . Berman, then a used-car salesman,
was discharged because his performance as a
salesman was no longer satisfactory , while Woodall,
the new-car salesman, was discharged , together
with Levinson , in order to effect a reduction in
force necessitated by declining business. In select-
ing Woodall , consideration was given to the whole
of his record as a salesman.
According to Brown , the decline in business at
the time of the discharge of Woodall was attributa-
ble to the Ford strike. The Union would not permit
General Motors to work overtime, so as to build up
an inventory in case it were to be struck next. The
result was that "Z" Frank's inventory , which , at this
time of year, should have been about 400 automo-
biles , was down to 149, a drastically low figure.
Prior to leaving for Florida , Brown testified, he had
conferred with his sales managers and the comp-
troller of the Company about the possibility of
reducing the cost of doing business , and the day
after he returned from Florida he had talked to Ab-
bate about reducing the number of the new-car
salesmen in view of the automobile shortage. Ab-
bate testified that before Brown left for Florida he
had suggested dropping Woodall and Levinson, and
after Brown returned from Florida, he was called in
by the latter and told: "I find that things are a little
worse than they were before and we have to do
something ." Abbate testified that he then renewed
his suggestion of dropping Levinson and Woodall,
and was instructed by Brown to discharge them im-
mediately.
While the immediate occasion for the discharge
of Woodall thus was a decline in business , his selec-
tion for discharge was, as in the case of Berman, sup-
posed to be based on his whole record as a
salesman , and the issue in the case of each
discharge is essentially the same . While Brown and
his sales managers dwelt on the low productivity of
Berman and Woodall, Brown conceded that
2194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
productivity would be only one of the factors to be
considered, although an important one. "The
overall productivity," he testified, "is not necessari-
ly the final determining factor in dismissal or the
termination or the layoff, as you may call it, of an
employee." There also had to be taken into con-
sideration the "growth factor," "his future value to
the company."
Low productivity was assigned as a factor leading
to the discharge of both Berman and Woodall, and
the Respondent's witnesses sought to document
their low productivity by introducing charts com-
paring the sales made by Berman and Woodall with
those made by the other salesmen of "Z" Frank
during a period of months preceding the discharges
of the former.' The Respondent also introduced a
statement showing comparative sales figures for
each month of 1966 and 1967 but these figures are
not in terms of dollars but of unit sales, and no
profit-or-loss statement for either year was of-
fered.' The charts and the statement were
prepared, of course, subsequent to the discharges
of Berman and Woodall. Brown testified, however,
that in the period preceding these actions he had
available weekly interim reports that reflected the
sales made by them.
There was, however, more in the indictment of
Berman than his low productivity, which Brown, as
well as Jacobs and Simms, attributed to his laziness.
Both Brown and Jacobs complained, in addition,
that after Berman was transferred to used cars, he
constantly badgered or ribbed Al Barnett, one of
the used-car salesmen, and did so to the point
where Barnett's sales were affected. Brown testified
that Barnett complained to him about Berman's
behavior in a conversation during which Barnett
was attempting to obtain a loan from him, and that
Barnett requested that he mention Berman's
behavior to Jacobs and Brenner. Brown also
testified that both Simms and Jacobs complained to
him about Berman on different occasions. Accord-
ing to Brown, when Simms complained, he sug-
gested to the latter that he "get with him and try to
work with him a little harder," and that when
Jacobs complained to him four or five times that
Berman was stirring up the sales force all the time
and creating disharmony, he told Jacobs: "Well,
he's only over there a week or so. Work with him.
Sit down and talk with him."
It was Jacobs indeed who complained the most
frequently about Berman, and in his testimony he
dwelt upon Berman's antagonistic attitude and lack
of aggressiveness. Jacobs thought that Berman
fared very poorly as a used-car salesman, and he at-
tributed this to Berman's failure to T. O. customers
and to go out of the used-car office and greet peo-
ple who were out on the used-car lot. "Please go
out, please go out, please go out and talk to
customers," Jacobs testified that he adjured
Berman. Jacobs also testified that he was constantly
hollering at Berman to quit "winding up" Barnett
and making him nervous. He also mentioned
Berman 's conduct during the "window" dispute.
According to Jacobs, the "last straw," so far as he
was concerned, was Berman's failure to sell so
much as a single used car during the whole
weekend that extended from Friday, November 3,
to Monday, November 6, although it was otherwise
"a pretty good used car weekend." Then and there
Jacobs made up his mind to let Berman go.
Compared to Jacobs, Simms had relatively little
to complain about so far as Berman was concerned.
He testified that he discussed Berman 's productivity
with him every Saturday and Berman agreed with
all his strictures. "I told Herb," Simms testified,
"that he was very lazy, which he agreed with me. I
told Herb that he is not making phone calls, he
doesn't turn over customers, which he agreed with
me. I told Herb that I felt that he had the ability to
be a good salesman but he's not applying himself,
which he agreed with me ...."[Emphasis supplied.]
Although Brenner testified that he had long op-
posed the dismissal of Berman, and that he had told
Jacobs: "Well maybe it will work out," he added
one item to Jacobs' indictment of Berman, which
was only another illustration of the latter's un-
willingness to venture out on the used-car lot. "He
didn't want to go out and wait on the customer,"
Brenner testified. "If a young person would go on
the lot to look at a car, he wouldn't want to take, as
we call [sic ] an up."
As for Woodall, Brown, Simms, and Abbate all
complained about his low productivity and his
failure to T. O. customers but even more about his
personal habits. Brown testified that he had
received reports from his sales managers about
Woodall's unexplained absences from the sales
room floor on various occasions, and about his "ar-
gumentative attitude with managers and fellow as-
sociates and employees." Simms was perhaps the
most voluble in his complaints about Woodall, and
the issue between them seems to have been that
Woodall was a high-profit man, aiming at big com-
missions , at the cost of volume, which Simms re-
garded as more important. Simms also mentioned
Woodall's neglect of mailings and telephone calls.
All the Respondent's witnesses who had contact
with Woodall complained most, however, about his
heavy drinking, which went back to the first period
of his employment. They testified that they could
often smell intoxicating liquor on Woodall's breath,
and related two incidents in particular as illustrative
of Woodall's conduct. Abbate testified that when
Woodall did not show up for work one day he
called his daughter who told him that her father
was sick; when Woodall finally showed up for work
the next day, he had a cut over his lip and and a
swollen lip; and he (Abbate) remarked to him:
The charts are in evidence as Resp Exhs 6 and 7
It is in evidence as Resp Exh 5
"Z" FRANK, INC.
"You ought to stop this drinking ." Abbate admitted
that this remark to Woodall represented an assump-
tion on his part but this assumption was based on
his general knowledge of his drinking habits. No as-
sumption needed to be made , however, by
Woodall's sales managers in the case of the second
incident , which occurred on a Saturday late in Oc-
tober 1967. On the day in question, Woodall sold
an automobile to a customer and the deal that
Woodall worked out with the customer involved
very low initial payments . When the deal was sub-
mitted for approval to Arenson , the finance
manager of "Z" Frank, the latter refused to accept
it, and this caused Woodall , who had been drinking
heavily, to fly into a rage. He used profanity toward
Arenson , and when Abbate and Simms intervened
and tried to quiet Woodall down and to induce him
to go home so that he could sleep off his drunk, he
became even more abusive and hollered and swore
at the top of his voice. Woodall would not go home
unless his deal was approved , and when Simms and
Abbate finally yielded he went home.
Unlike Berman , who maintained that prior to his
discharge nothing had ever been said to him about
his productivity or his attitude and that he had
never been warned that his job was in jeopardy,
Woodall admitted that he had been warned about
his drinking and that he had been involved in the
altercation with Arenson, although he advanced
Arenson 's arrogance as an extenuating circum-
stance. Woodall also admitted that at the same time
he had been questioned about the drop in his sales
in September, and that he had told the sales
managers that it had just been a bad month. Ac-
cording to Woodall , Simms then remarked to him:
"Woody, from now on you are going to be under
my wing. You are coming out of Carl Abbate's divi-
sion over to mine. You know how to sell cars. You
and I will get along."
F. Concluding Findings
As must be apparent from my summary of the
evidence , this case presents acute questions of
credibility in almost all of its aspects . There are, to
be sure, a few facts that cannot be disputed. There
can be no doubt that ( 1) the three members of the
CWA Organizing Committee paid a visit to the "Z"
Frank locations on North Western Avenue on
November 7; (2) Berman signed a union member-
ship application on November 7, the same day; (3)
he was discharged by Jacobs on November 8, the
very next day; (4) Woodall signed a union member-
ship application on November 8; and (5) Woodall
was discharged by Abbate on November 10, 2 days
later . Were the union activities of Berman and
Woodall and their almost immediate discharges
mere coincidences or was there some relation of
cause and effect between them?
Of all the witnesses who testified at the hearing
the most baffling was Berman . As I listened to his
2195
rambling and discursive testimony , which mixed the
coherent with the incoherent , the relevant with the
irrelevant , the factual with the inspirational, I was
filled with a sense of deep unease . Both his
character and his testimony seemed contradictory.
During the "window " dispute he had rejected the
notion of any concerted activity with his fellow
salesman , and proclaimed his intention of speaking
for himself . One would suppose him to be the most
unpromising organizational material . Yet he sought
to create the impression that a month or so later he
was the de f'ucto leader of the union drive. Per
haps it was to resolve this contradiction that he in-
troduced his conversations with his old friend Gol-
den as the basis for his conversion . But actually
there is nothing to show that they were really
friends, and even if they once were friends, they
had not seen each other for about 10 years. In view
of this lapse of time, it is difficult to perceive how
the sudden appearance of Golden induced Berman
to accept unionization , and to abandon the extreme
individualism which he had espoused. An even
more palpable contradiction is to be found in
Berman 's testimony concerning the behavior of
himself and the other used -car salesmen when, after
the visit of Camaron, Griffith, and Golden,
Brenner would come into the office as they were
discussing the Union. Why should they all stop talk-
ing about the Union in deference to Brenner's
presence when according to Berman the three
members of the organizing committee had dis-
tributed the union literature to everyone, including
Brenner , without any attempt at concealment what-
soever? This timidity is in strange contrast to the
role in which Berman cast himself when he pictured
himself as the scourge of the faint-hearted who
wished to do nothing about the Union until after
they had obtained their bonus money. But this was
the last time , apparently, that Berman was open
and aboveboard about any connection on his part
with the Union. In his testimony relating to the
period after his discharge, he strenuously pro-
claimed that there was no truth in the idea that he
was a union organizer, although according to his
previous testimony he had encouraged Camaron
to engage in the act of bravado consisting of
handing the union literature to Brenner. While
it is not uncommon for union adherents to deny
their adherence under interrogation, Berman
was denying it in the present case, although in
effect he had previously admitted it. Considering
Berman's character as a witness, it is my belief
that he greatly exaggerated the importance of
the part he played in the union drive, and I even
doubt that he vouched for Golden in discussing
the union with the other salesmen. If he did,
Woodall did not put much credence in what he
said , and sought to get the lowdown on the Union
from other sources.
The first important question that has to be
resolved is whether the Respondent 's supervisory
2196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hierarchy had knowledge of the union activity at "Z"
Frank and, if so , to what extent . Of course, if the
union literature was handed to Brenner on
November 7, there could be little doubt that they
would know instantly that an organizational effort
was in progress . But while I accept Brenner 's denial
that the union literature was handed to him, this
does not necessarily settle the question . Brenner
admitted that he saw " the three gentlemen" at the
used-car office , and, although he may not have
known in a positive sense that they were union or-
ganizers , I find it difficult to believe that he would
not even suspect the nature of their errand, espe-
cially when one considers how much attention was
paid to anyone who appeared in the used -car lot or
office and who might conceivably be a customer. If
Brenner even only suspected that the visitors were
union organizers , it is difficult to understand how
he would refrain from communicating his suspi-
cions to Brown in Florida and to the other sales
managers on the spot.
Assuming that they suspected that a union drive
was in progress , there still remains the further
question whether they also knew that Berman and
Woodall had themselves signed union membership
application cards , and were more active than any of
the other salesmen in pushing the Union. There is
no direct evidence that they had such knowledge in
the case of Berman , except for Brenner's supposed
comment on his union stewardship , and Simms'
comment on the salesmen signing up "over there"
and, in the case of Woodall , except for Abbate's al-
leged eavesdropping on the conversation between
Woodall and Berman . I accept , however , Brenner's
rather than Berman 's version of the stewardship re-
mark , which seems to me to be more natural, espe-
cially in view of the friendship between them, and I
also accept the denials of Simms and Abbate. It
seems to me , moreover , that even if I were to reject
Abbate 's denial the evidence would not have much
significance , since Woodall did not testify that he
was engaged in talking to Berman about the Union.
Indeed , Woodall failed even to identify the subject
of his conversation at this time.
The only other item of evidence that has any
bearing on the question of the extent of the
Respondent 's knowledge of the union activities is
the appearance on some of the salesmen 's desks of
copies of the publication , " Focus on News ." There
is, however , no evidence that any of the managerial
representatives of the Respondent was responsible
for putting them there . They could have been put
there by some antiunion salesman or salesmen
without instigation on the part of the Respondent.
Even if the source of the publication could be
traced to the Respondent , moreover , it would not
in itself indicate that the Respondent knew that
Berman and Woodall were particularly active in the
Union.
Furthermore, even if I were to assume that the
Respondent 's managers had full knowledge of the
union activities of Berman and Woodall, the fact is
that the decisions to discharge them antedated the
union activities . I credit the testimony of Jacobs
that he had decided to effect the discharge of
Berman on Monday, November 6, which was a day
before the visit of the Organizing Committee to the
"Z" Frank premises on November 7, and which
was indeed Jacobs' day off. I also credit the
testimony of Abbate that he and Brown had
discussed the possible discharge of Levinson and
Woodall before the latter went to Florida. This
would indicate at least that Woodall had been
provisionally selected for discharge before the com-
mencement of the union activity . It is true, to be
sure , that in the case of Berman , Jacobs ' decision
had to be approved by Brown, and that before
Brown gave his approval his attention had been
called to the remark of Brenner concerning Ber-
man's alleged union stewardship . But the fact that
he approved Berman 's discharge despite this in-
dicates , if anything , that he must have believed that
he had ample grounds for upholding Jacobs, and
that these grounds did not include Berman's union
activities.
In any event , the factor of knowledge is not in it-
self conclusive in determining whether a discharge
of an employee by an employer was discriminatory.
The fact that the employer may have had such
knowledge does not in itself circumscribe his
freedom of action in deciding whether to terminate
an employee , and when in fact he had ample
grounds to justify his action , he is not disbarred
from taking it merely because he knows that the
employee whom he wishes to discharge has en-
gaged in union activities . The reason for this is that
union membership does not in itself immunize an
employee against discharge.'
The evidence satisfies me that both Berman and
Woodall had mediocre records as salesmen. The
Respondent 's chart comparing the unit sales made
by Berman with those made by its other salesmen in
the period from June 8 to October 31, 1967, shows
that the unit sales made by Berman in every month
of this period were below the average number of
units sold per salesman during each month of the
period, except in the month of October when
Berman only equaled the average of 12.5. The
figures were as follows:
The months of June and October would seem to be
the best months for automobile sales , and what a
really good salesman could do in making sales is
also shown by the chart. For example, in June,
when the average number of unit sales made per
salesman was 17.1, and the number of unit sales
made by Berman was 14.5, a salesman named
Blichmann made 24 unit sales ; a salesman named
Edidin made 25 unit sales ; a salesman named Wax
' See, for instance , N L R B v W C Nabors Compan%, 196 F 2d 272 (C
A 5), and other decisions there cited
"Z" FRANK, INC.
onth
Berman's
Unit
Sales
Average
No. of
Unit
Sales per
Salesman
June 14.5 17.1
July 9. 0 12.4
Aug. 6.5 8.6
Sept. 8. 0 9. 0
Oct. 12.5 12.5
Totals 50.5 59.6
made 29.5 unit sales; and a salesman named San-
ders made 31 unit sales. In October, when the
average number of unit sales made per salesman
was 12.5, and the number of unit sales made by
Berman was the same, the salesmen above-named
made unit sales of 20, 24.5, 24, 10.5,8 respectively.
Counsel for the General Counsel makes much of
the fact that in October 1967 Berman's sales record
was higher than that of any other salesman in used
cars except Jasper, who had a record of 15.0 sales
units. The sales records of the other used-car
salesmen were 9.5 sales units for Stratton; 10.0
sales units for Fasone, and 10.5 for Barnett. It can-
not be truly said, however, that Berman's sales
record for October was higher than that of any
salesman in used cars, since five of the cars sold by
Berman in October were sold during the short
period of time in that month when he was a new-
car salesman. As a used-car salesman, his record
was only 7.5 cars in a period of almost a month.
This would only tend to show that Berman was a far
better new-car salesman than he was a used-car
salesman. Berman's performance in the latter
capacity was affected no doubt by the antipathy
between him and Jacobs. There is nothing to gain-
say the testimony of Jacobs that Berman did not
sell a single used car in the weekend immediately
preceding his discharge. Berman was not called in
rebuttal to deny this.
Comparing the performance of Woodall with
those of other salesmen, similarly, his record during
the period from April 4 to October 31, 1967, was
as follows:
And, of course, there were also a considerable
number of salesmen with far higher records than
the average.
In the case of Woodall, moreover, he himself ad-
mitted that he was taken to task for his poor sales
record in September, 1967, and that he had also
been warned about his drinking. The record shows,
to be sure, that he had two periods of service with
" A marked drop in sales in a particular month in the case of a salesman
who is particularly outstanding may be accounted for by such factors as the
taking of vacations or illness But in October 1967, sales were affected also
2197
onth
oodall's
Unit
Sales
Average
No. of
Unit
Sales
per
Salesman
April 8.5 16. 3
May 16.6 18.4
July 5.5 12.4
Aug. 7.0 8.6
Sept. 3.0 9., ,0
Oct. 11.5 12.5
"Z" Frank, and his rehiring would be of some sig-
nificance were it not for the fact that all the sales
managers were wary of taking him on again, and it
required all personal intervention of Brown to get
him reemployed. On the other hand, while Berman
as a witness would not admit that he had any short-
comings, he did in fact agree with all of Simms'
strictures and remonstrances, as the latter indeed
testified.
The record, as far as it goes, also supports the
contention of the Respondent that business was
poor in the months of September and October, due
to the expected appearance of the new 1968
Chevrolet models and the effects of the Ford strike,
and that some reduction in the number of salesmen
was a natural course to take. It is true that the Ford
strike was settled in late October but it would cer-
tainly take a considerable time before conditions
returned to normal.
The selection of Berman and Woodall for
discharge was not made, to be sure, merely on the
basis of their lack of productivity, or on the basis of
a decline in business. Brown freely conceded that
the whole potential of a salesman would have to be
taken into consideration in deciding whether to
discharge him, and that it was the policy of the
Respondent to go slow in discharging salesmen.
Nevertheless, salesmen were occasionally
discharged, as is shown by the fact that Leventhal
was discharged at the very same time as Woodall,
and there were other counts in the indictments
against Berman and Woodall than their lack of
productivity.
One of these counts was the failure of Berman
and Woodall to T. O. prospective customers. Coun-
sel for the General Counsel seeks to make light of
this fault by arguing that it was "a common com-
plaint with all salesmen." It is true that other
salesmen were guilty of the same fault on occasion,
and that the failure to T. O. a prospective customer
by the Ford strike that indirectly reduced the inventory of automobiles at
"Z" Frank
2198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could be due to his disinclination or refusal to be
turned over Nevertheless , there is some merit in
the complaints of the Respondent 's sales managers
on this score. The failure of a salesman with a high
sales record to T O. a prospective customer could
be more readily forgiven than the failure of a
salesman with a poor sales record to T. O. a
prospective customer and Berman and Woodall
were in the latter category . Each of them,
moreover , had other serious faults . Berman was
stirring everybody up, and getting himself em-
broiled with the sales managers and his fellow
salesmen particularly Barnett, whom he was con-
stantly badgering . Woodall was a heavy drinker and
had been guilty of truly disgraceful conduct during
his altercation with Arenson . That he drank to ex-
cess is firmly established by this incident . Counsel
for the General Counsel seeks to make light of
Woodall 's drinking , which , he submits , did not
amount to more than taking an occasional drink at
lunch , and which he describes as common among
American businessmen. He is also sarcastic about
Abbate 's testimony relating to the day when
Woodall came to work with a cut lip, which he
terms ludicrous, and he seems to think also that it
takes a medical expert to detect intoxicating liquor
on a person's breath . Counsel for the General
Counsel is even more sarcastic about the Arenson
incident , which , he submits, Simms attempted to
picture as "an experience of great trauma " when he
could not even remember the name of the
customer, and the customer was not even present
when Woodall was raging against Arenson . Both of
these factors do not seem to me to be highly rele-
vant in assessing Woodall 's conduct. It would have
been much worse, of course , if the altercation had
taken place in front of the customer but this is not
to say that the customer's absence from the scene
excuses Woodall's conduct After all, Arenson, as
well as Simms and Abbate, had a right to be treated
with courtesy, and to be spared Woodall's profani-
ty, whether or not a customer was present
In cases involving discriminatory discharges, the
immediate circumstances of a discharge , such as its
timing , its abruptness, the failure to give prior
warning , an absence of any explanation for the ac-
tion taken, or a shift in the grounds advanced
therefor, may be incriminating. Counsel for the
General Counsel seems to stress the latter factor,
contending that the Respondent's defense began
with the premise that Berman and Woodall were
discharged because of their low productivity, and
that it then shifted to other grounds. There is no
basis for this contention in the record , for the
Respondent in its answer entered a general denial
and at no time committed itself exclusively to any
particular ground . So far as other circumstances of
the discharges of Berman and Woodall are con-
cerned , they would raise suspicions of discriminato-
ry intent if I credited the testimony of Berman and
Woodall. I credit, however, the testimony of the
Respondent 's witnesses where there are conflicts in
the testimony . On the basis of the credited
testimony , the circumstances of the discharges of
Berman and Woodall do not raise any very disturb-
ing questions . The temporary installation of
Berman in the new-car department by Simms would
have been suspicious if Brown had been on the
scene, although it would have been explained to
some extent by the rather friendly relationship
between Berman and Simms. But with Brown ab-
sent from the scene, it is readily understandable that
the contretemps should have occurred. IfJacobs had
really undertaken , after he had discharged Berman,
to talk to Simms about transferring Berman to the
new-car department , as Berman testified, the sub-
sequent change of mind on his part would have sig-
nificance . The testimony of Berman to this effect,
however, only further undermined his credibility. It
is obvious that Jacobs disliked Berman too much to
have even undertaken to talk to Simms . So far as
Brown is concerned , it is to his credit that , although
he would not overrule Jacobs , he at least afforded
him a hearing , and stressed the fact that Berman
was a family man, in an effort to persuade Jacobs to
keep him. In relating the immediate circumstances
of his discharge, Woodall attempted to picture Ab-
bate as a man so heartless that he would not even
allow him to use his demonstrator to take his stuff
home but Woodall , too, undermined his credibility
by testifying further that Abbate would not give
him any reason for discharging him. This strikes me
as quite unbelievable , for there were so many good
reasons that Abbate could have given Woodall for
discharging him that it is difficult to believe that he
should not have mentioned at least one of them.
Although I must conclude that Berman and
Woodall were not discharged because of their
union activity, I am aware that there is some basis
for suspicion in the case. To my mind, the chief
basis for suspicion is the employment policy of "Z"
Frank , based upon the difficulty of obtaining and
keeping salesmen once they have been hired, and
firing them only as a last resort . But this policy was
not absolute , of course , and, while discharges were
infrequent, they sometimes did occur. While
Berman and Woodall were not the very worst of
salesmen, it is not difficult to see why they were
finally discharged, although the reasons were not
acknowledged with entire candor by the Respon-
dent's sales managers . Such lack of candor some-
times betrays the form of discriminatory intent
prohibited by Section 8(a)(3) of the Act but in the
present case there were other motives . In the case
of Berman, there was an undoubted enmity
between him and Jacobs that dated back to the
time that Berman went over his head to Brown dur-
ing the "window" dispute. I have little doubt that
Jacobs resolved to get rid of Berman at the earliest
opportunity. But this act of reprisal had nothing to
do with Berman's union activity, which, of course,
postdated the period of the "window" dispute.
Recognizing that Jacobs might have discharged
Berman because of his conduct during this dispute,
"Z" FRANK, INC.
counsel for the General Counsel argues indeed that
Berman was discharged because he had engaged in
concerted activity. If Berman 's activity had been
concerted , there would be good reason for finding a
violation of Section 8(a)(1) of the Act . But if the
record shows anything clearly, it seems to me that it
shows that in talking to Berman about the "window"
problem , he had rejected the very notion of con-
certed activity , and was acting only in his individual
capacity . Since such action could not be concerted
activity , no violation of Section 8(a)(1) of the Act
can be found.9
As for Woodall , he really sealed his fate by en-
gaging in the altercation with Arenson , late in Oc-
tober, which would be shortly before his discharge.
It was then that Abbate and Simms began thinking
no doubt of getting rid of him . But they preferred
to base his discharge on the decline in business and
his low productivity , in order to avoid stigmatizing
him as a heavy drinker . If it had not been for the
Arenson incident , he would merely have been laid
off. The question whether he had been discharged
or laid off was actually discussed by the parties in a
conference that was held after his discharge in an
effort to secure his reinstatement. I think Brown
maintained during this conference that Woodall
had been discharged only because he and his sales
managers had resolved never to reemploy him.
CONCLUSIONS OF LAW
2199
1. The Respondent , "Z" Frank , Inc., is an em-
ployer engaged in commerce , whose operations af-
fect commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. American Federation of Professional
Salesmen Organizing Committee , Local 5056,
Communication Workers of America , was, and the
American Federation of Professional Salesmen, an
independent , is, a labor organization within the
meaning of Section 2 ( 5) of the Act.
3. By discharging Herbert Berman and Clifton
Woodall , two of its employees , on November 8 and
10, respectively, and by refusing to reinstate them
thereafter , the Respondent did not discriminate
with respect to their hire or tenure of employment,
and did not , therefore , commit any unfair labor
practices affecting commerce within the meaning of
Section 8(a)(3) and ( 1) of the Act.
RECOMMENDED ORDER
In view of my findings of fact and conclusions of
law, I recommend that the Board enter an order
dismissing the complaint.
" See, for instance , The R J Tower bon Works, Inc u , 144 NLRB 445,
446, and earlier authorities there cited