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Behrendt v. National Labor Relations Board


November 21, 1972


Before DUFFY, Senior Circuit Judge, KILEY, Circuit Judge, and GRANT, District Judge*fn** .


We have before us a petition of Edward Behrendt seeking a review under § 10(f) of the National Labor Relations Act of a decision and final order of the National Labor Relations Board dismissing his complaint against Southwest Chevrolet Corporation (the Company)*fn1

The Company is engaged in the retail sale and disposition of automobiles, trucks and related products in Chicago, Illinois.

In a NLRB election on May 23, 1967, a majority of the Company's automobile salesmen voted for the International Vehicle Salesmen's Union of America (Independent) to be their exclusive bargaining agent. Independent was certified by the Board on June 1, 1967. Contract negotiations began shortly thereafter but were terminated without any agreement being reached. Shortly thereafter, Independent filed an unfair labor practice charge alleging the Company had failed to bargain in good faith in violation of § 8(a) (5) and (1) of the National Labor Relations Act.

About June 17, 1968, Independent affiliated with American Federation of Professional Salesmen (AFPS). Another complaint against the Company was filed alleging violations of § 8(a) (1) and (3) and (5) of the Act, and the NLRB General Counsel issued a complaint covering the charges on January 6, 1969*fn2

On February 13, 1969, the Company, Independent and the General Counsel entered into an "Agreement and Stipulation for the Entry of a Board Order." On March 25, 1969, the Board approved the agreement and issued an order requiring the Company to bargain with Independent, to furnish information necessary for negotiations and to reinstate petitioner, Edward Behrendt's bi-monthly draw of $225 and to cease and desist from making unilateral changes in the terms and conditions of employment of the salesmen.

The record shows the Company complied with the Board order and a collective bargaining agreement covering Company salesmen was entered into and went into effect July 1, 1969.

Petitioner Behrendt was hired by the Company in March, 1964, primarily as a new car salesman, and continued in its employ until June 19, 1970 when he was discharged along with fellow salesmen Zogg and Mason, after a management reorganization of the Company.

A Complaint was filed by the AFPS following the dismissal of petitioner Behrendt questioning in part his discharge as being discriminatorily motivated and also questioning failure of the Company to bargain collectively. A 10(b) hearing under the Act was held in Chicago on March 24 and 25, 1971 before a trial examiner.

After the trial examiner made findings unfavorable to the Company, the Company appealed this determination to the NLRB. The NLRB panel, contrary to the trial examiner, found the record offered "insufficient basis" for inferring that the discharge of employee Behrendt was discriminatorily motivated. The Board further found that the settlement agreement of February 13, 1969 did not form a basis of anti-union animus by the Company in discharging Behrendt.

It is well established that where there is no direct evidence of a discriminatory motivation in the record, the Board must examine the entire record before it can determine if there is evidence to support an inference of such motivation. When the Board finds insufficient evidence, the Board's refusal to draw the inference will be upheld unless there is "no rational basis" for the Board's determination evidenced from the entire record. Amalgamated Clothing Workers of America v. NLRB , 365 F.2d, 898, 911 (D.C. Cir., 1966)

This Court has adhered to the scope of appellate review of Board decisions as propounded by the Supreme Court in Universal Camera Corp. v. NLRB , 340 U.S. 474 (1951) in our decision Flack v. NLRB , 327 F.2d 396, 400 (7 Cir., 1963). In Flack, supra , we gave deference to the holding in Universal Camera, supra stating at page 400,

"... [While] 'the reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view,' it may not 'displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo ,'"

During the week immediately prior to Behrendt's discharge, the Company underwent a complete reorganization of its managerial structure. This reorganization was brought about by Sam Ruby, the principal owner of the Company, "for the purpose of trying to turn (the Company) around financially so it would be a profitable venture." The general manager was replaced and the new car manager was discharged on June 15, 1970. The used car manager was discharged the following day.

On June 15th and 16th the new manager held meetings with the Company's seven salesmen. The record of each salesman from January 1 to May 31, 1970 was examined. Behrendt ranked 5th among the seven salesmen in average monthly sales of new cars and gross profits from new car sales. Behrendt, Zogg and Mason, all salesmen, were discharged on June 19, 1970.

From the time of the Board's order of March 25th, 1969 until his discharge, Behrendt did not engage in any union activities known to or involving the Company.

After examining the entire record, we deem it improper for our Court to displace the Board's determination between the "two fairly conflicting views."

We hold that the Board did not err in refusing to find the Company in violation of § 8(a) (3) and (1) of the Act by discharging Edward Behrendt.

The Board's findings are supported by substantial evidence from the record and the order of the Board should be enforced.

Order Enforced.

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