212 Auto Sales, Inc.

National Labor Relations Board - Board Decisions

May 12, 1976

223 N.L.R.B. 1431 (N.L.R.B. 1976)

212 AUTO SALES, INC. 1431
212 Auto Sales, Inc. and Alexander Kubilis. Case 7-
CA- 12063
May 12, 1976
DECISION AND ORDER
BY MEMBERS JENKINS , PENELLO, AND WALTHER
issued on July 9. The hearing was held in Benton Harbor,
Michigan, on February 2, 1976. The issue litigated was
Respondent's motive for terminating the employment of
four truckdrivers on May 27. For the reasons set forth be-
low, I find that it discharged them for engaging in union
activities, thereby violating Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended.
Upon the entire record, including especially my observa-
tion of the demeanor of the witnesses, and after due con-
sideration of oral argument, I make the following:
FINDINGS OF FACT
On March 18, 1976, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, 212 Auto Sales, Inc.,
New Buffalo, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products. Inc.. 91
NLRB 544 (1950 ), enfd. 188 F .2d 362 (C.A. 3. 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge: The
charge was filed on May 30, 1975.1 The complaint was
1 Dates are 1975 unless otherwise indicated.
I. JURISDICTION
Respondent, an Indiana corporation, is engaged in New
Buffalo, Michigan, in the trucking business, specializing in
the hauling of used vehicles purchased at auctions by auto-
mobile dealerships. During calendar year 1974 it grossed
more than $100,000 by transporting used automobiles and
trucks, more than $50,000 of which was received for trans-
porting some of them across state lines.
It. THE UNFAIR LABOR PRACTICES
A. Facts
I do not credit the testimony of Bruno Mickus,
Respondent's president and owner. Consequently, the fol-
lowing facts are either undisputed or based on the credited
testimony of the General Counsel's witnesses, principally
Elaine Howell and Alexander Kubilis.
Around the first of April Mickus hired three union
truckdrivers who had been laid off by firms specializing in
hauling new automobiles because of a slump in the new-
car market. The three were Alexander Kubilis, Patrick
Pancer, and James Jones. It was not long before they be-
gan talking with Respondent's other drivers about the pos-
sibility of going union.
Mickus got wind of what was going on. Sometime
around May 20 he asked Elaine Howell, his sole office
employee, whether she had heard any of the drivers talking
about a union. She said she had not. He asked her to check
with a mechanic named Bob Deal and a driver named
Chuck Johnson. He said he thought there was more than
one employee involved and had a feeling there were at
least four, naming Kubilis, Pancer, Jones, and Winfred
Green. He said he wanted to find out precisely which indi-
viduals were involved so that he would not get into trouble
by doing something to one who was not guilty.
Mrs. Howell did as Mickus asked. She asked Deal if he
had ever been approached about a union. He told her that,
one morning when some of the employees had been wait-
ing for the terminal to open, there had been a discussion
among them about whether a union was feasible. He said
that he could not pinpoint the man who had started the
discussion. When Mrs. Howell put the same question to
223 NLRB No. 215
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson, he told her that he had not been approached and
was not interested in a union in any event . Mrs. Howell
told Mickus what Deal and Johnson had told her . Mickus
said he would check further with his son , Bernard (Bennie).
The following Friday, May 23, Bruno told Mrs. Howell he
had checked with Bennie and Bennie had told him there
was union activity among the employees.
Respondent 's workweek runs from Tuesday through Sat-
urday with Sunday and Monday as normal days off. The
fact that Memorial Day was celebrated on Monday, May
26, thus dislocating the usual schedule of used-car auc-
tions , caused that week to be an abnormal one in
Respondent 's operations . Mrs. Howell did not work at all.
On May 27 Bruno Mickus instructed Bennie Mickus to
contact Kubilis , Pancer, Jones , and Green and tell them
they were laid off. Bennie telephoned Green . He told
Green he had to let him go because he was not a reliable
person . He pointed out he had to work for Green on week-
ends and he wanted to stay home too . (Bennie Mickus is a
student. He drives for Respondent on an emergency basis.)
He told Green that plus the fact that Green broke equip-
ment were the reasons he was being let go . Green replied,
"We'll see about that ." Bennie tried to call Jones but could
not reach him.
Kubilis found out what was going on when he bumped
into Pancer around noon on May 27. Pancer told Kubilis
Bruno Mickus had found out about the union and fired
Pancer. (How Pancer got the message is not clear in the
record . I credit Bennie Mickus ' assertion that he did not
talk to Pancer. Although subpenaed by the General Coun-
sel, Pancer and Green did not appear at the hearing.) Al-
though not scheduled to call in for an assignment until the
next day, Kubilis called the terminal immediately , reason-
ing that , since he and Pancer had come to work for Re-
spondent together and Bruno knew they were buddies, the
same fate was in store for him . He reached Bennie Mickus.
Bennie told him he was not supposed to call in until Wed-
nesday because there were no auctions until then. When
Kubilis hung up he told Pancer he did not think Bruno had
found out about himself because Bennie had not told him
he was fired . However, about an hour later Bennie called
back and gave Kubilis the message . Kubilis said he would
have to see somebody about the situation . Bennie said,
"Do what you have to do."
A little later that afternoon Kubilis managed to reach
Bruno Mickus at the terminal by telephone . Bruno told
him he was fired for busting up his truck. Kubilis said,
"That's not the reason , Bruno , and you know that."
Bruno said , "Yes, it is."
Kubilis said , "I'm going to have to see a lawyer and get
the National Labor Board [sic]."
Bruno said, "You don't run my [obscenity] company.
You don' t get no union in here . You go to whoever you like
and nobody going to run my [obscenity] company." After a
few seconds of argument with Kubilis, Bruno repeated that
nobody was going to run his Company, either Kubilis or a
union or the Labor Board.
Bennie Mickus gave his father 's message to Jones when
Jones went to the terminal on May 27 to go to work. Jones
found the gate padlocked. He eventually managed to at-
tract Bennie 's attention. Jones asked Bennie where ev-
erybody was. Bennie said everybody had quit on him.
Jones laughed and said he knew better than that, nobody is
going to up and quit a job. He asked Bennie what had
really happened. Bennie said , "We had some trouble and I
had to lay off a bunch of men." Jones asked the reason.
Bennie said , "Lack of work and other reasons you are
aware of." Bennie told Jones he was among those laid off.
Mrs. Howell returned to work on Tuesday June 3. Bruno
Mickus asked her why she had failed to come to work on
May 27. Mrs. Howell explained that she had stayed home
that day because she understood she was supposed to and
the rest of the week because Bennie had told her to remain
home until further notice. After repeated calls, she had fi-
nally reached Bennie at the Mickus home on Sunday and
he had told her to report on June 3. Bruno told her he had
discharged Kubilis, Pancer, Green, and Jones on the day
she failed to show up (i.e., May 27) because of union prob-
lems. He said they wanted a union and he did not. He said
it was necessary to keep a union from coming into the
terminal, that if one did he would burn the place down. He
made a long statement as to various reprisals he would
resort to if a union did get in, including cutting her pay and
ending her car allowance . He asked her if she wanted to
quit at that time. She said she wanted to go home and
discuss it with her husband first.
The next day Bruno Mickus told Mrs. Howell a Board
investigator was coming to the terminal on June 12 to in-
vestigate the charge in this case. He told her it would be
necessary to give the investigator reasons for the discharge
of the four men which had nothing to do with union activi-
ties. Mrs. Howell was present in the office when the investi-
gator interviewed Bruno on June 12. At one point Bruno
left the room. The investigator asked Mrs. Howell if any-
one had ever approached her about a union. She told him
about Bruno asking her to check with Deal and Johnson.
She did not tell him about Bruno's admission to her that he
had discharged Kubilis, Pancer, Green, and Jones for en-
gaging in union activities. When Bruno returned to the
room, the investigator asked him to confirm what Mrs. Ho-
well had told him. After the investigator left, Bruno repri-
manded her.
Mrs. Howell quit on June 28. The record does not indi-
cate why. (The termination of her employment is not al-
leged as an unfair labor practice in the complaint.)
Respondent utilized the services of 7 drivers to transport
48 used cars in the week ending Saturday June 1, 1974 (i.e.,
the week in 1974 in which Memorial Day fell). The figures
212 AUTO SALES, INC. 1433
for the preceding week are 9 and 216. The figures for the
following week are 9 and 266. The figures for the week
ending May 31, 1975, are 7 and 67. (The discharge of Ku-
bilis, Pancer, Green, and Jones on May 27 reduced
Respondent's complement of drivers from 11 to 7.) The
figures for the preceding week are 11 and 131. The figures
for the following week are 7 and 187.
In 1974 Respondent transported a total of 7,090 used
cars. The comparable figure for 1975 is 6,244.
B. Analysis and Conclusions
The facts set forth above, especially Bruno Mickus' ad-
mission to Mrs. Howell, a witness with no stake in the
outcome of this case, on June 3 that he had discharged
Kubilis, Pancer, Green, and Jones for talking about orga-
nizing his employees, can lead to only one conclusion. That
Respondent's motive was a discriminatory one within the
meaning of the Act is made more-not less-obvious when
a look is taken at its defense.
Bruno was asked by his counsel, "Why did you dismiss
four employees?" He replied, "Because they had the best
records [i.e., for termination], they were like a temporary
employee and they were living far away and I never be-
lieved they would stay with me." Counsel then undertook
to ask Bruno about the four men individually, starting with
Pancer. To the question "Why did you lay Mr. Pancer
off?" Bruno replied, "Pancer was drinking, but I could nev-
er touch him. He was a very violent [man] and he told me,
he repeated, [obscenity] you. What am I to do, take a ham-
mer and hit him in the head or something? I walk off."
A digression at this point developed the information
about Kubilis, Pancer, and Jones having been taken on
around the first of April at a time when they were laid off
elsewhere . They still lived some distance from the terminal
in New Buffalo . They were unlike Green in that Green had
started working for Respondent on January 1. (Apparent-
ly Green was also different in that he was not a laid-off
new-car hauler.)
Mention of Green caused counsel to return to his effort
to elicit from Bruno his reasons for terminating each man
with the question "Why did you lay Mr. Green off?" Bruno
replied, "Because he refused to go to work. He stated on
Fridays he can't work and Saturdays he can't work and
Friday is our Thursday and Saturday [is our Friday], and I
kept on asking the guy and asking the guy and I lose my
nerves and let him go, and had to because he won't listen
to me."
Counsel then returned to Pancer to elicit details about
his drinking and information about alleged damage to
Respondent's equipment. This led in turn to statements
that Kubilis and Jones were also guilty of mistreating
equipment, thus:
Q. All right. Now, did you have any problems with
Mr. Kubilis?
A. Mr. Kubilis first I warned Kubilis twice because
he was running my truck with low oil, one time six
quarts and one time a gallon. So, one time a cylinder
pump went out and this was strictly negligence and I
did warn Kubilis and then I called two weeks before
he was laid off and he came into work and I didn't see
him at that time, I don't recall, but he had a fight with
somebody somewhere and I can't recall exactly, I
think it was his ex-employer and he went to work and
worked for a half a day and he said he couldn't work
anymore because his leg was getting infected and then
he went to the doctor and didn't show up for a week,
if I recall.
Q. Now, what about Jones, did you have a problem
with Jones?
A. Jones, the first week he worked, he came back
with a mud flap missing. I said, what happened to my
mud flap and he said [obscenity] you Bruno, and
wouldn't even talk to me. And I knew right away I feel
a real bad thing, and if a boss can't ask what a man is
doing with the trucks, we can't work together.
Q. Did you have any other problems with him?
A. Yes, I think two weeks later he came back with
two loading ramps with the legs missing and nobody
was in the premises and he took another two ramps
and the man came to me and said, Bruno, somebody
stole my two ramps, and I remember my legs and
ramps and they're on Jones' truck. But I was so scared
to tell him because of his fighting, he will kill me, and
the guy was so violent and I waited for business to
slow down and let him go and I take a lie detector test
on it.
In summary, Respondent contends it decided to lay off
four drivers the Memorial Day week for economic reasons
and selected Kubilis, Pancer, Green, and Jones without
regard to seniority for the plethora of reasons stated by
Bruno Mickus. Neither the economic nor the individual
aspect of its defense stands up under close inspection. As
to the latter, Respondent does not contend that the dis-
tance any of the men had to drive to get to work interfered
in any way with his attendance. Nothing occurred just
prior to May 27 to make Bruno think that Kubilis',
Pancer's, and Jones' quitting to go back to their jobs with
unionized new-car haulers was imminent. All of the drink-
ing, attitude, and damage to equipment incidents related
by Bruno predated May 27 by significant intervals of time.
His complaints about each of the men started soon after
the moment he hired him, yet he did nothing to get rid of
any of them until he learned of the threat of unionization.
In Pancer's case, in fact, he fired the man some 2 weeks
before May 27 and rehired him immediately.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the economics of the situation , Respondent intro-
duced records for 1974 and 1975 from which I have ab-
stracted the figures set forth in the last two paragraphs in
the section above entitled "Facts ." It also introduced a
comparison of 1974 and 1975 as to cars it had hauled for
one customer, a Chicago dealership named Car Credit
Center . The latter was intended to support the contention
that the loss of this important account contributed to the
decision to lay off for economic reasons . It does show that,
in the April-August period in 1974, Respondent transport-
ed 413 cars for Car Credit Center while, in the same period
in 1975, it hauled only 117. However, the exhibit does more
for the prosecution than the defense , for it shows that Re-
spondent was still hauling for Car Credit Center as late as
the week ending June 21. (I attach no significance to the
figure 9 after the date 8 -23-75, the only numeral in a long
string of ciphers beginning with the week ending 6-28-75,
and running through the week ending 8-30-75. Car Credit
Center's calling on Respondent to haul some cars for it
once in that period would not make it a customer again in
any sense relevant to this issue.)
The main thrust of Respondent 's economic defense is
that Memorial Day week was a slow one for it in 1975 and
that its records prove it managed to accomplish its work
with seven drivers just as it had in 1974. However, the
parallel between 1975 and 1974 does not go far enough to
help Respondent . In 1975 it terminated the employment of
drivers. There is no basis in the record for a finding that it
did the same thing in 1974 . Bruno Mickus was asked to
consult his records and state whether he had laid off driv-
ers in the comparable 1974 week when business dipped as
it did in 1975 or had simply not used as many drivers at
that time without terminating anyone 's employment. He
could not recall.
Respondent 's asserted reason for terminating employees
on May 27 is as much of an afterthought as its reasons for
selecting Kubilis, Pancer, Green , or Jones rather than
someone else . They all smack of Bruno Mickus' statement
to Mrs. Howell on June 4 that they had to think of some
nondiscriminatory reasons to give to the Board 's investiga-
tor. Before he received the charge in this case, Bruno had
never heard of the National Labor Relations Board or the
National Labor Relations Act. I find, therefore, Respon-
dent violated Section 8 (aX3) and ( 1) of the Act on May 27,
1975, by discharging Alexander Kubilis, Patrick Pancer,
Winfred Green , and James Jones for engaging in union
activities.
The complaint also contains two allegations of indepen-
dent violations of Section 8(a)(l). The first is predicated on
Mrs. Howell's conversations with Bob Deal and Chuck
Johnson during Memorial Day week . Since Mrs. Howell
acted on Bruno's express instructions , thus becoming
Respondent's agent, and since, in the absence of the sort of
safeguards set up by the Board in Struksnes Construction
Co., Inc., 165 NLRB 1062 (1967), the questions she put to
them about their and other employees' union activities
were inherently coercive, I find Respondent illegally inter-
rogated employees about "participation in, activities on be-
half of, and sympathies for" a union.
The other 8(a)(1) allegation is that, "[o)n or about May
27, 1975, Respondent, by its agent Bruno Mickus, threat-
ened its employees that it would sell all of its trucks if said
employees selected a labor organization to represent them
for the purposes of collective bargaining." The General
Counsel conceded there is nothing in the record to support
it.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, 212 Auto Sales, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. By discharging Alexander Kubilis, Patrick Pancer,
Winfred Green, and James Jones on May 27, 1975, for
engaging in union activities , Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act.
3. By interrogating employees about their and other em-
ployees' participation in, activities on behalf of, and sym-
pathies for a union , Respondent has violated Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The allegation of the complaint that Respondent vio-
lated Section 8(a)(1) of the Act by threatening employees
has not been sustained.
THE REMEDY
A cease-and-desist order, reinstatement and backpay for
all four discriminatees, and the usual notice are required to
remedy the unfair labor practices found. Backpay will be
computed on a quarterly basis, plus interest at 6 percent
per annum, as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). James Jones was offered a job by Re-
spondent and declined, and Winfred Green was rehired
sometime after May 27. However, the record reveals nei-
212 AUTO SALES, INC.
ther the dates nor the precise terms of Respondent's offers.
Whether they constituted offers of reinstatement sufficient
to render new offers unnecessary to effectuate the purposes
of the Act and their effect, if any, on the backpay due
Green and Jones can be determined during the compliance
stage of this case.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER2
Respondent, 212 Auto Sales, Inc., New Buffalo, Michi-
gan, its officers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging employees for engaging in union activi-
ties.
(b) Interrogating employees about their participation in,
activities on behalf of, or sympathies for unions.
(c) In any manner interfering with, restraining, or coerc-
ing employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1435
(a) Offer Alexander Kubilis, Patrick Pancer, Winfred
Green, and James Jones immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any earnings they lost, plus interest, as a
result of their discharge on May 27, 1975.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its terminal in New Buffalo, Michigan, copies
of the attached notice marked "Appendix." 3 Copies of
said notice, on forms provided by the Regional Director
for Region 7, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges Respondent violated Section 8(a)(1) of
the Act by threatening employees.
3In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
hearing, that we violated Federal law by discharging em-
ployees for engaging in union activities , we hereby notify
you that:
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection
To refrain from any or all of these things.
WE WILL NOT discharge you for engaging in union
activities.
WE WILL NOT interrogate you about your participa-
tion in, activities on behalf of, or sympathies for
unions.
WE WILL NOT in any manner interfere with, restrain,
or coerce you in the exercise of the above rights.
WE WILL offer Alexander Kubilis, Patrick Pancer,
Winfred Green, and James Jones immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and we will make them whole for any earn-
ings they lost, plus interest at 6 percent per annum, as
a result of their discharge on May 27, 1975.
212 AUTO SALES, INC.