European Cars Ypsilanti, Inc.

National Labor Relations Board - Board Decisions

Apr 26, 1962

136 N.L.R.B. 1595 (N.L.R.B. 1962)

EUROPEAN CARS YPSILANTI, INC. 1595
WE WILL offer to Orville Bussell immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority or
other rights and privileges and make him whole for any loss of pay he may
have suffered as a result of our discrimination against him.
All our employees are free to become, remain , or refrain from becoming or re-
maining members of any labor organization , except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3) of the Act.
EVENDALE LUMBER COMPANY,
D/B/A CORAL HOMES,
Employer.
Dated------------------- By-------------------------------------------
(President)
Dated------------------- By-------------------------------------------
(Vice President)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material
Employees may communicate directly with the Board's Regional Office in the
Transit Building, Fourth and Vine Streets, Cincinnati, Ohio; Telephone Number
Dunbar 1-1420, if they have any question concerning this notice or compliance
with its provisions.
European Cars Ypsilanti , Inc. and Wolfgang Wenzlawe. Case
No. 7-CA-3210. April 26, 1962
DECISION AND ORDER
On January 15, 1962, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its power in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Leedom].
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 Intermedi-
ate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as modified herein.
1. We accept the Trial Examiner's conclusion that Respondent dis-
charged Wenzlawe, the Charging Party, because it believed, among
other reasons, that he was attempting to buy a used car from a cus-
tomer in violation of a company policy against such dealing. The
General Counsel has excepted to the Trial Examiner's finding because
it is based on inferences regarding Respondent's motivation which
136 NLRB No. 140.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board is not required to follow. We agree that the circumstances
cast considerable doubt on Respondent's claimed motivation for dis-
charging Wenzlawe, since its decision to do so was made a few days
after Local 164, Teamsters, had demanded recognition and on the
very evening that a union meeting was being held. Wenzlawe had
protested certain pay practices of the Respondent at an employees'
meeting at the shop shortly before the Union began its organizing
campaign. However, the underlying basis for the Trial Examiner's
finding is his resolution of the conflicting testimony of Wenzlawe and
Gardner, the customer whose used car was involved here, on the one
hand, and that of Johnson, Simmroth, and Crudder, employees of
Respondent, on the other. We are satisfied that Johnson, the manager
of the Respondent, had some reason to suspect that Wenzlawe was at-
tempting to buy Gardner's car since Johnson had Crudder call Gard-
ner (and listened in on the conversation) in order to have Crudder
ask Gardner whether Wenzlawe had been trying to buy his car.
Gardner did not implicate Wenzlawe but his answer was evasive
enough to confirm Johnson's suspicion that Wenzlawe had been deal-
ing with Gardner about the purchase of his car. The Trial Examiner's
resolution of the credibility issues involved in the various conflicts of
testimony substantiates Respondent's claim that it had good cause for
discharging Wenzlawe. As to whether this was the true reason for
the discharge or merely a pretext, it does not appear to us that the
General Counsel has shown by a clear preponderance of proof that
Respondent discharged Wenzlawe because of his concerted or union
activities.
2. The General Counsel has also excepted to the failure of the Trial
Examiner to find that Respondent violated Section 8 (a) (1) by threat-
ening reprisals or promising benefits for the purpose of discouraging
concerted or union activities. Although the Trial Examiner's analysis
of the testimony on these matters is sketchy, his findings are based
essentially on resolutions of credibility. We are not fully convinced
that these resolutions should be overridden as contrary to a prepon-
derance of all the relevant evidence.
3. On May 11, 1961, 2 days after Wenzlawe was discharged, the
employees went out on strike because of their belief that the discharge
was due to Wenzlawe's union activities. On May 13 Respondent sent
each of the strikers a letter, enclosing their paychecks up to the date
of the strike and telling them to remove their tools and personal be-
longings and to turn in their uniforms because Respondent was aware
of the fact that they had voluntarily quit work. The Trial Examiner
found that this was not intended as a dismissal but was only a restate-
ment of Respondent's position that if the strikers did not return it
would seek replacements. We agree with the General Counsel that
EUROPEAN CARS YPSILANTI, INC. 1597
the letter of May 13 caused a discharge of the strikers because of their
support of the Union, in violation of Section 8(a) (3).1 However,
even if the strike be considered only as a concerted activity in protest
of Wenzlawe's discharge and not in furtherance of a union objective,
the discharge of the strikers would still be a violation of Section
8 (a) (1). Whether considered as a violation of Section 8 (a) (1) or
of 8(a) (3), we find that reinstatement and backpay for the strikers,
under the conditions set out below, are necessary in order to effectuate
the policies of the Act.'
The Effect of the Unfair Labor Practices Upon Commerce
The activities of the Respondent set forth above, occurring in con-
nection with its operations as described in section I of the Inter-
mediate Report, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
The Remedy
When employees are discharged while on strike, it is the Board's
established practice to award backpay from the date on which the
employees make an unconditional application for reinstatement.
There is some indication in the record that the striking employees
may have applied and been granted reinstatement. However, to take
care of the possibility that reinstatement has not yet been effectuated,
we shall order that the Respondent offer to all strikers who had not
been permanently replaced before their discharge on May 13, 1961,
upon their application, reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, dismissing if necessary any employees hired
after May 13, 1961, to replace striking employees. We shall also
order that the Respondent make whole these employees for any loss
of pay they have suffered, or may suffer, by reason of the Respondent's
refusal to reinstate them upon their applications. In the event that
the Respondent has not offered reinstatement to any one of these em-
ployees upon his application, the Respondent shall make him whole
by the payment of a sum of money equal to that which he normally
would have earned as wages during the period beginning 5 days after
the date on which he applied for reinstatement and terminating on
the date of the Respondent's offer of reinstatement, such loss to be
computed in the manner set forth in F. TV. Woolworth Covipany,
90 NLRB 289.
1 Englewood Lumber Company, 130 NLRB 394
2 N.L.R B. v. J. 1. Case Company, Bettendor( Works, 198 F 2d 919, 924 (CA 8), cert.
denied , 345 U.S. 917.
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing and the entire record, the Board re-
jects the Trial Examiner's conclusions of law numbered (3) and (4),
and in their stead makes the following :
CONCLUSIONS OF LAw
(3) By discharging its employees because they engaged in a strike
in support of the Union and in protest against the discharge of an
employee, the Respondent has engaged in unfair labor practices in
violation of Section 8(a) (3) and (1) of the Act.
(4) The aforesaid labor practices are unfair labor practices affect-
ing commerce within the meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, European Cars Ypsilanti,
Inc., Ypsilanti , Michigan, its officers , agents , successors, and assigns,
shall :
1. Cease and desist from:
(a) Discouraging membership in or activity on behalf of Local 164,
International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , or any other labor organization of its em-
ployees , by discharging striking employees or by any other discrimi-
nation in terms or conditions of employment.
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist the above -named Union or
any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Manarrement Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon application , offer to its striking employees who had not
been permanently replaced before May 13, 1961, reinstatement to their
former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges , and make them whole for any
loss of pay in the manner set forth in the section of this Decision and
Order entitled "The Remedy."
EUROPEAN CARS YPSILANTI, INC. 1599
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all pertinent payroll and other
records necessary to analyze the amounts of backpay due and the
rights of employment under the terms of this Order.
(c) Post at its establishment at Ypsilanti, Michigan, copies of the
notice attached hereto marked "Appendix."' Copies of said notice,
to be furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by an authorized representative of European
Cars Ypsilanti, Inc., be posted by Respondent immediately upon re-
ceipt thereof, and maintained by it for 60 days thereafter in conspicu-
ous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Respondent to
insure that such notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations not found herein.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and, in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in or activity on behalf
of Local 164, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or in any other
labor organization of our employees, by discharging striking em-
ployees or by any other discrimination in terms or conditions of
employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed in
Section 7 of the Act.
WE WILL, upon application, offer to those employees who went
on strike on May 11, 1961, and who had not been permanently
replaced before May 13, 1961, immediate and full reinstatement
to their former or substantially equivalent positions without prej-
udice to their seniority and former rights and privileges of em-
ployment, dismissing if necessary any persons hired to replace
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them after May 13, 1961, and make them whole for any loss of
pay suffered by them as a result of our failure to reinstate them
within 5 days after their application.
EUROPEAN CARS YPSILANTI, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Industrial Building, 232 W. Grand River, Detroit, Michigan,
Telephone Number Woodward 2-3830, if they have any questions con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed by Wolfgang Wenzlawe, the General Counsel of the
National Labor Relations Board , by the Regional Director for the Seventh Region,
issued a complaint against European Cars Ypsilanti , Inc., herein called Respondent,
alleging that Respondent had violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (61 Stat. 136), herein called the Act. With re-
spect to the unfair labor practices , the complaint alleges, in substance , that on or
about May 8, 1961, Respondent discharged and refuses to reinstate its employee,
Wolfgang Wenzlawe, because he had joined or assisted the Union or engaged in other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection in violation of Section 8(a)(3) of the Act. The complaint also alleges
that by so discharging Wolfgang Wenzlawe and others, interrogating employees and
threatening them with loss of jobs and benefits if they joined the Union, Respondent
interfered with, restrained , and coerced its employees in the exercise of rights guar-
anteed in Section 7 of the Act thereby engaging in unfair labor practices in violation
of Section 8(a)(1) of the Act. By its answer, Respondent denied the commission
of any unfair labor practice and pleaded affirmative defenses.
A hearing was held before John C. Fischer, Trial Examiner, in Ypsilanti, Michi-
gan, on August 8 to 11, 1961, at which the General Counsel appeared , by his attor-
ney, and Respondent appeared by its president , Thomas Payne. Respondent's
retained labor consultant , Wm. J. MacReynolds, had been taken ill shortly before
the hearing and was unable to appear at the hearing and represent his client. Mr.
Payne, because he had just gotten back into town and had not had time to personally
prepare for the case, entered his general denial, plead affirmatively to the com-
plaint on the record , and elected to proceed with the hearing without other counsel.
It was agreed that he would be granted a recess at any time to secure additional
counsel or prepare himself during MacReynold 's illness. Subsequent to the close of
the hearing Respondent 's consultant , MacReynolds , died, and by agreement the firm
of lawyers , Bishop , Keller, Thoma & McManus, has represented Respondent. All
parties were afforded full opportunity to be heard, examine and cross-examine
witnesses, and to file briefs . Since the close of the hearing, briefs have been re-
ceived from the General Counsel and the Respondent which have been duly
considered.
Upon the entire record in the case , and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein, a corporation duly orga-
nized under, and existing by virtue of the laws of the State of Michigan , with its prin-
cipal office and place of business at 506 E. Michigan Avenue, Ypsilanti , Michigan.
Respondent is and has been at all times material herein , engaged at said place of
business in the sale , distribution , and service of Volkswagen automobiles . During
EUROPEAN CARS YPSILANTI, INC. 1601
the year 1960, which is representative of all times material herein, Respondent in
the course and conduct of its business operations sold at retail, new and used motor
vehicles, and serviced motor vehicles, the gross value of said services and sales ex-
ceeding $1,000,000. During the year 1960, which period is representative of all
times material herein, Respondent in the course and conduct of its business opera-
tion purchased products valued in excess of $50,000, which were transported to its
place of business in Michigan directly from States of the United States other than
the State of Michigan and directly from countries other than the United States.
Respondent is now, and has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Ind., herein called the Union, is and has been at all times
material herein, a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The principal question to be decided in this case is whether the Charging Party,
employee Wolfgang Wenzlawe, was discharged by Respondent Manager Johnson for
attempting to purchase a customer's car in competition with the Company or whether
he was discharged because of his union activities. Three factual situations are in-
volved: (1) the union organization sequence, (2) "moonlighting" or working after
hours on cars at home in competition with the Company, and (3) the attempted
purchase by Wenzlawe of customer Gardner's Volkswagen. This is one of those
cases in which the defense is "discharged for cause" and when such discharge occurs
simultaneously with the initial organizing efforts or at approximately the same time.
The issue then turns on whether the Respondent's motivation was lawful or un-
lawful. That answer depends upon the resolution of the credibility factors. The
next most important question is whether Respondent discharged its striking em-
ployees on May 13, 1961, because they refused to abandon the strike and failed to
report to work on May 10, 1961.
Advent of the Union
European Cars Ypsilanti, Inc., is engaged in the sale and service of Volkswagen
automobiles. The Company employs between 35 and 40 workers of whom about
half are mechanics. These mechanics are paid from $1.65 to $2.75 per hour and
are assigned monthly quotas ranging up to $1,600 per month. The mechanics split
50-50 all amounts in excess of their quota. In the latter part of April 1961 these
mechanics met with management officials Johnson, Duncan Payne, and Foreman
Simmroth. At this time they asked for a straight pay rate of 50 percent of the
charge for work done on a customer's car. Management refused such a 50-50
arrangement on the grounds that it had previously been tried by the Company and
had failed, and further, that management felt that the customers might suffer either
because of shoddy work or excess cost if the responsibility were left with the in-
dividual mechanic. The mechanics also requested that they be paid weekly rather
than biweekly.
As a result of their failure to get such agreement with the Company the employees
decided to organize in order to secure such a contract with the Company. About
May 1, 1961, Wolfgang Wenzlawe contacted Business Agent Martin Hands of
Teamsters Local 164 in Jackson, Michigan. On May 3 Hands met Wenzlawe and
Dieter Poegel in the Squeezie Restaurant across the street from the Company.
Hands gave Wenzlawe application cards with instructions for him to sign up the
majority of the employees. Wenzlawe passed the cards out on May 4 during the
lunch hour and returned 13 to Hands by registered mail on May 5. On May 5
Hands sent a registered letter to the Company stating that the Union had a majority
and asked for a meeting with the owner and president, Tom Payne, for the morning
of May 9. This letter was received by Manager Johnson on Saturday, May 6, and
he called Hands on Monday, May 8, and advised Hands that Mr. Payne was out
of the city and would be unable to meet him on the 9th. On the morning of
May 8 Hands called Wenzlawe at the shop and they arranged for a union meeting
to be held after work on Monday, May 8. This organizing meeting was held
around 5 o'clock at Hotel Huron and was attended by the 13 signatories.
During the day facts came to the attention of Manager Johnson which precipitated
his decision to discharge Wenzlawe for violating company policy by attempting to
buy a customer's used car for himself in competition with the Company. This car,
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a Volkswagen, belonged to a regular customer of European Cars, Inc. It was
garaged for repairs.
Gardner's Version of the Sale of his Volkswagen
The facts concerning the sale of the Volkswagen on May 8 constitutes the crux
of this case. Bernard Gardner, a witness called by the General Counsel, testified that
he owned an old Volkswagen which had repeatedly been the subject for repairs
by the Company and that as a result of a recent collision it had been put in
Respondent 's repair shop to get an estimate of damages for insurance settlement
purposes . The car had been in there for 3 or 4 days before May 8. Gardner stated
that while the car was awaiting such estimate, Karl Simmroth, Respondent fore-
man, attempted to buy the car, and he talked at some length with Simmroth , offering
the car to him for $200. This offer Simmroth agreed to, although no funds changed
hands. With reference to Simmroth's attempt to buy the car on the settled price of
$200 and the manner of payment he stated : "Well, I understood this was a personal
deal between him [Simmroth ] and I because just before I went in to speak to
Mr. Crudder I asked him what he wanted to do, did he want this car or didn't he
want it because I was going to complete the deal with Crudder." (Emphasis sup-
plied.) Queried by General Counsel as to whether he ever told anyone employed
by European Cars, including salesmen, management or personnel employees, that
Wolfgang Wenzlawe attempted to buy his car he answered : "No, I didn't tell
anybody-any organization or anyone else, because it simply didn't happen "
He further testified that when Simmroth talked to him about purchasing his auto-
mobile on May 8, that he was not told that he would be paid by a company check.
However, on the same afternoon , May 8 , he purchased a new Volkswagen from
company salesman Crudder-further stating that on May 9 when he went in to pick
up some release of lien forms that Simmroth said that Mr. Johnson would give him a
check for $200: "I spoke to Mr. Johnson and he said he would give me the $200 and
that was the end of our conversation."
Crudder's Version of the Volkswagen Transactions
Henry A. Crudder was a new car salesman for the Respondent Company and a
former owner-dealer. His connection with Gardner began with a telephone con-
versation as a sales inquiry. Around April 18 he answered the telephone and a
man who introduced himself as Bernard Gardner stated he was interested in buying
a new Volkswagen. Crudder suggested an immediate appointment, but Gardner
stated that he was negotiating with an insurance company for an insurance settle-
ment Crudder made a followup call some 4 days later, but Gardner "had not
finalized the negotiation on his wreck but he thought it would be very soon."
Crudder impressed the Trial Examiner as a frank and honest witness. Because of the
confidence which the Trial Examiner placed in the testimony of salesman Crudder,
the following cogent portion of his testimony , which constitutes a true narrative of
the actual facts, is quoted:
Finally I got a phone call on the late morning of May 8 and the man very
happily said, "This is Bernard Gardner and I'm ready to buy my automobile."
I said, "That's fine. I am glad to hear that." He said, "I got a fine settlement
from the insurance company." I said, "Fine . Can I make an appointment with
you." He said, "Well, yes, but I have no way of getting over there." I said,
"I would be very glad to come over and get you. Where will I pick you up. We
haven't even met. You will have to be at a specific place." He said to pick him
up at the Shell station on Main Street. I don't know the number, but it's
approximately next door to the Michigan European Cars. I remember the day
very clearly. It was a cloudy drizzly type of day and I drove over there and
as I drove in with my demonstrator the man came out and introduced himself
as Bernard Gardner. We was in a spirit of affability because I was going
to sell a car and he was going to buy one. He said, "Boy I really came out
smelling like a rose on this deal." I said in what respect because to my
knowledge it was a cash transaction . He said , "Well, I got total settlement
from the insurance company and they're going to let me keep it and I've got a
couple of boys over here at European Cars who want the car very badly."
It seemed to be unusual to me for an insurance company to settle on a car
and let the man retain title and possession of the property but I didn't give it
much consideration at that time . I said , "Well, that's fine I hope you get the
one who was the most money." I said, "Who are they?" and he said, "I was
going to sell it to Karl but now Wolf wants it." I knew that Karl-at that time
I did not know who Wolf was. I knew that Karl Simmroth represented some
EUROPEAN CARS YPSILANTI, INC. 1603
part of managerial capacity in the garage and I assumed that it was his job to
evaluate wrecks where there would be a reclamation of parts so I didn't pursue
it any further. He said, "you know I have one problem." He said, "I'm afraid
whichever one I sell it to, the other one will be mad at me and I won't get good
service on my car." I said, "Well, that's the least of your problems." I said, "If
you don't get good service that you are supposed you contact Mr. Johnson or
Mr. Payne." I said, "They'll find out why you don't get the service." By that
time we had reached the dealership and we went in. I wrote up the order for
the car he wanted; I took his deposit and to the best of my recollection I received
the endorsed insurance check plus a personal check-the amounts that I have
in my mind are somewhere around four hundred dollars on one and I think
a hundred eighty-two or a hundred ninety-two on the other. I can't recall the
exact amounts and as I got up to go and receipt the deposit, Mr. Gardner left
and as I stood at the cashier's window, which is just in position to see the
motor repair, I saw him talking to several men. I got my receipt and I turned
to Mr. Gardner and said, "I have your receipt." He said, "I'll be in there in
lust a minute." He came back in a few minutes and said, "Boy, I don't know what
I'm going to do. I'm really in hot water over this." He said, "Somebody is
going to be awful made at me. I had another appointment and I said, "I would
like to get back to Ann Arbor to keep my other appointment," and I said,
"You had better think it over-you better sleep on it," and then I took him back
to Ann Arbor and we discussed the paperwork necessary for his wife to fill out.
Later that evening we got a phone call from him saying that he was reluctant
to sign-and I would like to qualify that the papers he had to sign were an
application for a title which is non-negotiable, a Michigan sales tax form which
is not negotiable. His finance papers I was having typed up and I was to deliver
to his house the next morning for review before his wife signed them. I ex-
plained to him on the telephone that it was not negotiable but he said he would
rather have them filled out and I said, "Fine," that I would bring-the next
day I would bring all the papers over to him, which I did, which he read, and
which Mrs. Gardner signed and I brought him back and delivered his car.
At no time did I question him about his automobile except the previous
evening. The previous evening I was asked what he was going to do about
his wreck and I said I understood he was going to sell it to either Karl or
Wolf. I said that was the conversation given to me. I said, "I can verify
it and make sure I'm right." I said, "Just a minute and I'll call him up."
Q. Did he ever ask you while you were riding in the car-did he ever tell
you while you were riding in the car that Wolfgang tried to buy the car from
you?
Mr. BIXLER : Objection to leading this witness . He gave a very clear narrative
of this and doesn't need to be led by-
TRIAL EXAMINER: Yes, he has given a clear narrative. What is the question
you just asked?
Mr.,PAYNE: I asked him if at any time while he was riding in the car if Mr.
Gardner ever mentioned to him that Wolfgang was trying to buy the car from
him.
TRIAL EXAMINER: I'll let him answer the question.
The WITNESS: Mr. Gardner said that Wolf was trying to buy car. Now,
I did not know who Wolf was because at that time I had never gone out in the
garage to be on a familiar basis with the mechanics. I had no reason to.
Q. (By Mr. PAYNE.) Do you know Karl Simmroth?
A. I know Karl Simmroth. I knew he was acting in a managerial capacity
in the garage and I would like to phrase it that I assumed his purchasing or
attempt to purchase was on behalf of the company, that it would be his job
to evaluate the merchandise.
Q. Let me ask this. On Monday night did Mr. Johnson ask you to make a
telephone call to Mr. Gardner?
A. Yes, sir.
Q. Would you tell us what the situation was in that conversation?
A. I called Mr. Gardner, approximately, to the best of my recollection, at
around seven-thirty to quarter to eight. When he came to the phone I intro-
duced myself and I said, "Bernard, I hope you don't think I'm prying into
your personal affairs, but I am rather curious as to how Wolf got into the act."
That was the English or slang that I used. He said," What do you mean?" I
said, "In regards to your telling me about him buying this car," and he said,
"Well, gee whiz, Crudder, I hope I'm not causing a dissension over there." I
said, "No, I'm just curious as a salesman ." He said, "Well, I've been trying to
641795-63-vol. 136-102
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sell the car and I thought I had my deal set with Karl until this other bid came
in.
Q. Whose other bid?
A. He just said "other bid." I said, "Thank you very much, Mr. Gardner,"
and I said, "I'll see you tomorrow when I bring your papers and contract over."
That was the end of the conversation.
Q. Was Mr. Johnson on an extension phone to the best of your knowledge?
A. To the best of my knowledge he was.
Manager Johnson's Version of the Transaction
Manager Johnson testified that Karl Simmroth told him on Monday afternoon,
May 8, that Wenzlawe was attempting to buy a car from a customer. The customer
was Gardner. He described that he asked salesman Crudder to call the customer,
Mr. Gardner. His version of the telephone conversation to which he listened was
"Mr. Crudder asked Mr. Gardner how Wolfgang was attempting to buy his auto-
mobile and he made the statement on the phone to the best of my knowledge that
he had tried on several occasions to buy his car." Johnson then went home and
dictated a letter to his wife discharging Wenzlawe and the next morning attempted
to give it to him but Wenzlawe did not accept the letter which reads as follows:
MAY 8,1961.
Mr. WOLFGANG WENZLAWE.
DEAR MR. WENZLAWE: Your employment with European Cars of Ypsilanti,
Inc., 506 E. Michigan Avenue, Ypsilanti, is discontinued as of 5:30 P.M ,
May 8, 1961 for the following reasons:
(1) After checking the number of parts you have been purchasing from
our Parts Department, we feel that you are doing too much outside work
on customers cars which is in direct competition with our business. You
have been warned about this several times, but you seem still to continue
this practice.
(2) It has also come to my attention that you recently tried to pur-
chase a used Volkswagen from a customer who was dealing with us on a
new car. This customer might have turned said vehicle in to us as a
trade-in, and that is truly our business-selling and buying automobiles.
You know that this is against company policy and you had also been
warned about this.
Very truly yours,
FRED L. JOHNSON,
Manager.
Johnson's explanation was that after he heard this he thought Wolf was again
trying to buy used cars that should have been traded in to the dealership. The
Trial Examiner accepts this explanation of the discharge. My impression of Johnson
was that he was a man solely interested in selling cars for the Company. He was
long experienced in the automobile business, especially in sales and accounting. He
knew the facts of life in collective bargaining and unionization, and also knew of
the union activity in the shop if for no other reason than that he had received
Hand's letter 2 days before on May 6. He was obviously far too intelligent a man
to fire out of hand the principal union leader, if he knew that to be the case (and
the Trial Examiner finds that General Counsel failed to establish such knowledge)
when Mr. Payne, owner and president, was absent from the city, and going to be
confronted with unionization upon his return to business. Especially is this true
in view of the Union's warning that it would take prompt action to remedy any
discrimination.
Simmroth's efforts to purchase the car for $200 was an agency deal and con-
templated payment by a company check. Gardner's testimony did not ring true of
the Trial Examiner. The Trial Examiner accepts, rather, the true versions as given
by Crudder and Johnson, and came to the conclusion that Wenzlawe was not dis-
charged on May 9 because of union activities, but for cause. Accordingly it will
be recommended that the complaint be dismissed as to that count.
Respondent's defense, in addition to the attempted purchase deal, that Wenzlawe
was dismissed for continued refusal to follow management instructions, doing re-
pair work at home in competition with his employer, taking parts home without
approval, and soliciting work of company customers is completely borne out in
the record. That the Company was suffering because of "moonlighting" by em-
ployees is evidenced by the fact that on December 1, 1960, a notice was placed on
the bulletin board which reads as follows:
EUROPEAN CARS YPSILANTI, INC. 1605
DECEMBER 1, 1960.
NOTICE TO ALL EMPLOYEES:
It is asked that the company have your cooperation in the following matters:
1. That all employees refrain from bringing or drinking intoxicating bever-
ages on company premises either during or after working hours.
2. To clarify previous statements, employees are to refrain from engaging in
mechanical or other pursuits after regular working hours that are in direct
competition with European Cars Ypsilanti, Inc., as this will be grounds for
dismissal.
3. To reduce the confusion around the Service Desk mechanics are requested
to refrain from talking to customers in this area.
THOMAS B. PAYE, President.
As a matter of fact, the two worst offenders of this "moonlighting" were Wenzlawe
and Simmroth. Both were warned repeatedly prior to the publication of the notice.
Simmroth took the warning to heart, albeit with some ill grace and discontinued the
practice. As in Simmroth's case, it was necessary for Manager Johnson on Decem-
ber 13, 1960, to drive out to Wenzlawe's home and bring back a large box of
foreign car parts. However, he continued to buy large quantities of new parts from
the stockroom, and habitually came in late in the morning with his clean company
coveralls greasy-evidence of having worked the previous night. Also, he con-
tinued his practice of taking company tools home with him in order to perform such
after-hours work. In some instances he failed to bring the tools back in the shop
the next morning-resulting in delay to other employees in performing company
work. Wenzlawe attempted to justify such action by testifying that he had an agree-
ment with Mr. Payne that he was free to do outside work after hours on cars east
of Woodward Avenue in Detroit. The Trial Examiner finds this to be a fabrication.
Such permission was denied by Payne and Payne's denial is accepted by the Trial
Examiner. The fact was that Payne gave him special permission to repair only the
private automobile of a police officer who helped Wenzlawe reinstate his driver's
license.
Strike Voted and Called
As previously developed, a meeting of the employees on May 8 at the Huron
Hotel had been held immediately after work at 5 o'clock at which Organizer Hands
addressed 13 of the employees, and between 7:30 and 8 p.m. Johnson and Crudder
had engaged in the telephone conversations which resulted in Johnson's decision to
discharge Wenzlawe and his dictation of such discharge letter. The next day, May 9,
Wenzlawe was notified by Simmroth to report to Manager Johnson, who informed
Wenzlawe that he was discharged. As the result of Wenzlawe's discharge, a union
meeting was called and held after work on May 10 by Business Agent Hands. The
employees, believing that the discharge was due to Wenzlawe's union activities, de-
cided at this meeting that they would go out on strike. On May 11 the 13 employees
began picketing in front of the building and shop. Some of the pickets carried large
signs which bore the legend "TOM PAYNE European Cars UNFAIR TO UNION
MEMBERS." The words "European Cars," identifying the Company, were in small
letters, but the Words "TOM PAYNE UNFAIR TO UNION MEMBERS" were in
large, bold characters-obviously designed to emphasize Tom Payne as being unfair
to labor and minimizing European Cars. Being confronted late on May 9 upon his
return from New York with the Union's demand, Payne attempted to contact Union
Official Brennan of Ann Arbor, but Brennan was ill. Payne drove down and met
with union officials at Teamsters headquarters in Detroit on Thursday, May 11. In
company with Union Official Larry Brennan, Jr., he met with Marty Hands and a
Mr. Holmes, member of the executive board of the International Union.
Conference at Teamsters Headquarters
Hands testified that when Payne was asked to recognize the Union, he asked to
see the authorization cards and when Hands refused stated: "Well, what is more
important to you, to have 12 or 14 people in your Union or to have a man in Con-
gress who could do you some good." Hands testified that his reply was that "a bird
in the hand is worth two in the bush. I have got these people and I haven't got you
in Congress." In this connection Payne stated:
I would definitely deny that I attempted to swapout the employees of my staff
for a seat in Congress. I told at that point that I definitely felt that the picket
signs which Mr. Johnson told me about on the phone-the picket signs that had
my name in great large letters and the company name in very small letters-that
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was only one reason simply because I had run for the United States
Congress from this district and that I definitely resented that. I stated the same
thing to Mr. Holmes.
I told Mr. Hands and Mr. Holmes that Wolfgang had been discharged because
of repeated violations of company policy and I told them what these repeated
violations had been and I denied the fact that he had been discharged because
of any attempt of union organization in my shop. I informed both of them that
I resented the fact that the sign said that TOM PAYNE in large letters and
European Cars Ypsilanti in very small letters and then again in larger letters it
said UNFAIR TO UNION MEMBERS. And .I asked them specifically, "Are
those employees of European Cars members of your union?" At some time in
the conversation-it was not a long conversation-Mr. Hands called me a liar
at which time the conversation came to a screeching halt. I got up and left.'
I went back to the shop and spoke to the fellows that were on the sidewalk-
just saying good morning-good afternoon-something to this effect-and went
back into the shop.
On Wednesday afternoon I wrote down some remarks that I wanted to make
to the fellows, because I felt in my own heart that they were out on that picket
line for the wrong reason.
Payne's Speech to Employees
Immediately after his meeting with the Teamsters in Detroit, Payne returned to
the shop and spoke to all the personnel, including the pickets as follows:
Fellows, I'm sorry to see you out here instead of seeing you in the shop, but
I do appreciate the fact that you'll let me have this chat with you. Now, I'm
told that you are out here because we let Wolfgang go. Also, that it's your
opinion that we let Wolfgang go because he was engaged in Union organizing
and activity. Let me assure you of a few things. One, we let Wolfgang go
because he had on more than one occasion gone strictly against company policy.
He, on more than one occasion, had been dishonest with us. We warned him,
more than once-gave him more than one chance to straighten out, but when
Mr. Johnson confirmed with a customer that Wolfgang had once again gone
against an established company policy, one ,which he knew about and had been
warned not to violate again or he would be dismissed. Mr. Johnson had no
choice but to let Wolfgang go. I was out of town when all of this happened, but
had I been here 1 would have done the same thing Mr. Johnson did. Wolf
left us no choice!
These signs you are carrying seem to me to make it look as though I'm anti-
labor and anti-union. I want you to know that is not the case. For example,
I point out that a person in Michigan could not possibly get the Democratic
nomination to run for the U.S. Congress from Michigan, 2nd District or any
Michigan District, for that matter, and be anti-labor. And you all know that
I ran for U.S. Congress on the Democratic ticket from this District last year.
Fellows, I want to point out a thing or two that, I'm sure you know. You
walked out-we didn't ask you to leave, we didn't lock you out, we didn't
force you to leave. Now I'm asking you, please come back to work in the
morning. You all know that I've got to keep this place going and if you don't
come back to work I'll have to hire some one to take your place, for the only
thing I can assume is that you have voluntarily quit. Remember now, you
walked out voluntarily, we didn't ask you to leave, and I am asking you again,
please come back to work. You may have some very legitimate complaints
but I understand that it is illegal for me to make any promises to try to get you
to come back to work and that I can make no threats to you to get you to come
back to work, this I wouldn't do anyhow, and I'm sure you all know this. I ask
1 According to Hands' version, " and being that I am plain spoken, I told Mr Payne
to cut out the BS and let's get down to facts, that we were here to do business and this
was it. At this point, Mr. Payne jumped up in a rage and said, 'if that is the way you
feel about it-about me, there is no sense in me doing business with you,' and started to
proceed to leave " Payne elicited from Hands on cross-examination that he, Hands, told
employees of the roughness that the Teamsters sometimes incur when they organize by
answering* "not only the Teamsters, every union " There was evidence of roughness
during the strike including the slashing with a knife of a panel car job, following of a
company truckdriver with threats that his life insurance was valueless if he worked, and
that one employee returned to Germany because of fear engendered by the strike.
EUROPEAN CARS YPSILANTI , INC. 1607
you again, please come back to work and let's try and work this thing out with
you in the building instead of out here on the sidewalk. I repeat, I'm not
anti-labor; I'm not anti-union, and remember you walked out-and if you don't
come back to work I can only assume that you voluntarily quit and I'll have to
get someone to help us keep the shop in operation.
Payne's Letter to Striking Employees
The complaint alleges that Respondent by its president and agent, Thomas Payne,
did on or about May 13, 1961, discharge its striking employees because they refused
to abandon the strike and failed to report to work on or about May 10, 1961; that
Respondent threatened its employees with discharge or other reprisals if they re-
mained members of the Union and continued to give assistance and support to it;
and threatened to close European Cars Ypsilanti if they selected Local 164 as their
bargaining representative. The basis of General Counsel's charge that Respondent
fired the men is predicated on letters dated May 13, 1961, to each of the striking
employees, the following of which is an example:
MAY 13, 1961.
Enclosed you will find 2 checks, one for $______ and one for $------- The
larger check, as noted, is your pay for the week of May 1st thru May 6,
1961. It was paid to you today (Sat., May 13, 1961) for last week's work. The
smaller check is for the two days you worked this week. Had you worked the
full week of May 8th thru May 13th you would have been paid a full check
next Saturday, May 20th.
Inasmuch as you did not report for work on Wednesday morning, May 10th,
1961 and have not reported for work since that date we are aware of the fact
that you have voluntarily quit work at European Cars Ypsilanti, Inc. For this
reason we are paying you the extra check one week early, this check paying you
in full to date.
The enclosed dollar bill (cash) will refund your parking money as of May 1st,
1961.
Would you please make immediate arrangements to turn in your uniform to
European Cars Ypsilanti, Inc. so that we may make proper settlement with the
laundry company.
Also please contact us as soon as possible on removing your tools and personal
property, from the dealership building.
Very truly yours,
EUROPEAN CARS YPSILANTI, INC.,
THOMAS P. PAYNE, President.
This letter was followed by visits to several of the striking employees at their homes in
which he asked them to return to their jobs.
The Trial Examiner is impressed with the clear and logical brief of Respondent.
It is to be borne in mind that in the trial of this case the General Counsel came in
competently and completely prepared to put on his case and he did so. The Re-
spondent was personally represented by Mr. Payne who, although he had studied
some law, was not a practicing trial lawyer. In fact, he had virtually no opportunity
to prepare himself because he had relied on his labor counsel, MacReynolds, who
was absent because of illness, and who subsequently died. In spite of his inexperience
Mr. Payne conducted his part in the trial in a manner that would do credit to
many practicing attorneys. His direct and cross-examination was characterized by
personal dignity and thoroughness in his effort to get the absolute truth on the record.
He had had no opportunity to "make a case" for himself. He made a record which
was satisfactory to his attorneys, Bishop, Keller, Thoma & McManus. Counselor
Charles E. Keller, who prepared the brief for Respondent worked from the cold rec-
ord and in the opinion of the Trial Examiner he sustained the burden of Respond-
ent's defense on the basis of pure logic and reason. He did not have the benefit
of seeing the witnesses or of being aware of any of the nuances that characterized
a full-dress trial. The Trial Examiner, however, saw the witnesses and came to the
conclusion, after carefully studying the demeanors of the testifiers and weighing all
of the testimony, that the truth lay with Respondent's witnesses . The Trial Examiner
is in complete accord with the dissertation in Respondent's brief on this phase of
the case, subscribes to and adopts that rationale.
Of the other allegations by General Counsel that Respondent discharged its strik-
ing employees because they refused to abandon the strike and return to work, that
it threatened its employees with discharge and other reprisals if they continued to
support the Union, and that it threatened to close the dealership if the Union was
selected as the employees' bargaining representative, it is submitted that no substan-
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tial evidence exists on the record in support thereof. Regarding the charge of dis-
charging striking employees because they refused to work, the record is clear that
Payne only stated that if they did not return, he would have to seek replacements.
This was confirmed by the testimony of Mr. Hands and others. The letter of May 13
with the accompanying paychecks was merely intended as a reiteration of Payne's
previous position and not intended as a letter of dismissal is borne out by his later
visits to employee homes to urge them to return to work. There is absolutely no
testimony that Payne threatened to discharge employees if they continued to support
the Union. Payne likewise denied any such threats. Nor is there any substantial
evidence of a threat to close the shop if the Teamsters got in. James Caldwell
testified that Payne said, regarding the Teamsters and closing the plant, that he was
going to have to get replacements to keep the shop running. Paul Moore specifically
denied he had ever heard Payne say anything about closing the plant, as did Payne
and others. Accordingly, it will be recommended that this count in the complaint
be dismissed.
In Conclusion
In support of his allegations of interference , restraint, and coercion, General
Counsel argued that after distributing to all the picketing employees a letter con-
taining their paychecks in which they were told to pick up their tools and turn in
their uniforms that Payne then personally visited and talked to several of his striking
employees at their homes at which time he allegedly made threats of reprisal and
displayed union animus. He cited that the testimony of employee James Caldwell
was that "if the Teamsters were successful he would close the shop ." He also cited
that Payne and Manager Johnson went to the home of employee James Caldwell
and saying that "he was not antiunion but he did not want the Teamsters in the
shop and that the Teamsters was gangsters or crooks "; also that Payne attended a
meeting with the Teamsters and the Teamsters had made "harsh remarks about the
colored race of people." General Counsel also contended that Payne assured em-
ployee Reszetar that Simmroth would not be the foreman any more. Payne denied
making any promises of benefits or threats of reprisal and with reference to his
remarks about the Teamsters he admitted that after the strike feelings were strained,
that the union sympathizers had slashed and scarred one of the cars being brought
in for repairs and as a result of this feeling he read to employees he visited portions
out of Attorney General Robert Kennedy's writings that the Teamsters engaged in
violence and tolerated unscrupulous financial practices . Similar comments were
attributed to Foreman Simmroth . The Trial Examiner does not accept this interpreta-
tion of the testimony . The Trial Examiner finds that what Payne actually did was
to forthrightly visit certain of the employees seeking to have them return to their
jobs in order that he might keep the shop running and thereby hold his Volkswagen
franchise . He was attempting to show them that Wenzlawe was discharged for cause
and that he was not antiunion as such but that his personal opinion was in accord with
that of Attorney General Kennedy. During the trial of this case Mr. Payne com-
plained to the Trial Examiner as follows:
May I ask at this time, before questioning Mr. Moore . Mr. Dieter Poegel-
I think it will be in the Court's interest-he came to me this morning and said
that Marty Hands who is sitting over here next to Mr . Bixler made some remarks
to him after Court yesterday, telling him he better talk fast next time he got on
the stand because he was going to be in trouble . I would not put in anymore
terminology than this , but Mr. Poegel was upset on this situation and I think
this seems to be entirely out of line . It has been that practice of Mr. Hands
before. I know this to be true and I have evidence to this effect but I think
it is too bad that witnesses are-that there is anything said to them to try to
frighten them or to try to direct them in that manner. Mr. Poegel will be called
back and questioned on it.
The Trial Examiner advised the counsel that he had no control over what might
occur outside of the hearing or of threats of violence on a picket line but that he
did control the hearing , and if anything went on in the hearing that did not meet his
approbation he would exercise his power of excluding parties even if it were necessary
to get out a bench warrant from the local magistrate or the sheriff . In any event
the Trial Examiner concluded on the basis of the complete testimonies , direct and
cross, that Mr. Payne did not make any threats of reprisal or promises of benefit for
the purpose of discouraging protected union activities but rather he endeavored to
get the men back at work so that he could continue operating . As to the charge
that Simmroth , a supervisor within the meaning of the Act, questioned Wenzlawe
several times as to the place of the union meeting and stating that it was against
the Company's policy to have a union was denied by Simmroth. The Trial Examiner
HAZELTON LABORATORIES, INC. 1609
accepts such denial. As to Simmroth's alleged asking Paul Moore what happened
at the meeting Moore testified , "so, I asked him, `What meeting ?' and he said, `The
meeting you had last night,' and I pretended I didn't know and he said, `Oh, still
secret, huh?"' Admitting this question to have been asked by Simmroth and the
joking answer of "still secret , huh," nevertheless , the Trial Examiner does not feel
that it would effectuate the purpose of the Act to find this to be such interrogation in
the context of his case as would require a cease and desist order.
It is concluded that General Counsel has not sustained the burden of proving
by a preponderance of the evidence the allegations of his complaint . Accordingly
it will be recommended to the Board that the complaint be dismissed in its entirety.
Upon the above findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
(1) The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
(2) The Union is a labor organization within the meaning of Section 2(5) of
the Act.
(3) The Respondent has not violated Section 8(a) (3) of the Act as alleged in
the complaint.
(4) The Respondent has not engaged in conduct violative of Section 8(a)(1) of
the Act as alleged in the complaint.
RECOMMENDATION
Having concluded that Respondent has not engaged in unfair labor practices as
alleged herein , I recommend that the complaint be dismissed in its entirety.
Hazelton Laboratories, Inc. and International Chemical Workers
Union, AFL-CIO . Case No. 5-RC--3448. April 26, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before M. Louise Felton, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers , Fanning, and Brown].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of the
Act.'
2. The labor organization involved claims to represent certain
employees of the Employer 2
1 The Employer operates a research and development laboratory in Fairfax County,
Virginia . Approximately 55 to 60 percent of its business consists of service contracts with
the United States Government , Including a $250,000 contract with the U.S. Army Chemical
Center . The Employer's annual sales of services is valued at approximately $1,700,000,
of which $750 , 000 represents sales to firms outside Virginia . As the Employer thus exerts
a substantial impact on national defense, and also has an annual outflow of services in
excess of $50,000, we find that it is engaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction . Ready Mixed
Concrete & Materials, Inc., 122 NLRB 318; Siemens Mailing Service, 122 NLRB 81, at 85.
2 The Petitioner deals with employers concerning wages, hours, and conditions of em-
ployment and is therefore a labor organization within the meaning of Section 2(5) of
the Act. We find without merit the Employer ' s motion to dismiss the petition on the
136 NLRB No. 138.