Acme Motors, Inc., t/a Acme Datsun

National Labor Relations Board - Board Decisions

Aug 19, 1982

263 N.L.R.B. 570 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR REILATIONS BOARD
Acme Motors, Inc., t/a Acme Datsun and Local
259, United Automobile, Aerospace and Agricul-
tural Implement Workers of America. Case 22-
CA-9980
August 19, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 17, 1982, Administrative Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein and set forth below. 3
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent contends that the Administrative Law Judge's interpreta-
tion of the evidence and his credibility findings showed bias and preju-
dice. Upon careful examination of the Administrative Law Judge's Deci-
sion and the entire record, we are satisfied that the contentions of Re-
spondent in this regard are without merit.
The Administrative Law Judge found Respondent had billed employee
Wallace for nonexistent or minor damage to his demonstrator automobile
in retaliation for his union activity. The Administrative Law Judge failed
specifically to find, however, whether the billing was unlawful. We
hereby find and conclude that because the bill was given as a reprisal for
engaging in union activity Respondent violated Sec. 8(a)(3) and (1) of the
Act by such conduct.
2 In agreeing with the Administrative Law Judge that Respondent un-
lawfully suspended employee Wallace on May 13, 1980, because of his
union activity, we find no need to rely on the "small plant doctrine" of
Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959), to establish Re-
spondent's knowledge of Wallace's activity. The credited evidence clear-
ly establishes that Respondent had knowledge of Wallace's union activi-
ties. For example, General Manager Weissbord admitted to Wallace that
Respondent's treatment of him concerning his demonstrator automobile
was due to his union activity, adding that Wallace was going to blow a
good job because of his union activity Further, Respondent's secretary-
treasurer, Jaskowski, told Wallace on April 28, 1980, that he knew that
Wallace and employee Salit had started the union campaign and that
Wallace was the leader. And on April 29, 1980, Weissbord told Wallace
to tell the other employees to forget about the Union, that it would not
do them any good. Indeed, the Administrative Law Judge found that
these statements of Weissbord and Jaskowski violated Sec. 8(aXI) of the
Act.
s The Administrative Law Judge recommended that the Board issue a
broad cease-and-desist order requiring Respondent to cease and desist
from violating the Act "in any other manner." However, we do not find
Respondent's conduct in this case egregious enough to warrant the issu-
ance of such an order. Consequently, we shall substitute the Board's
narrow language, requiring Respondent to cease and desist from violating
the Act "in any like or related manner," for the provision recommended
263 NLRB No. 77
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied, and hereby orders that the Respondent, Acme
Motors, Inc., t/a Acme Datsun, Highland Park,
New Jersey, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their
union activities.
(b) Threatening employees with discharge for
engaging in union activities.
(c) Creating the impression of surveillance of
such activities.
(d) Conditioning employment on voting against
the Union.
(e) Informing employees that it would be futile
for them to select the Union as their bargaining
representative.
(f) Informing employees that it would be futile
for them to seek to use National Labor Relations
Board processes or to seek its protection.
(g) Discouraging membership in or activities on
behalf of Local 259, United Automobile, Aero-
space and Agricultural Implement Workers of
America, by billing employees for maintenance or
repair to demonstrator automobiles in retaliation
against their union activities, or by suspending
them and thereafter failing and refusing to reinstate
them because of their union activities, or by other-
wise discriminating against them with respect to
their terms and conditions of employment, because
of such activities.
(h) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them under Section
7 of the Act.
2. 'rake the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Lloyd Wallace full reinstatement to his
former position or, if such position no longer exists,
by the Administratie Law Judge See Hickmort Foods, Inc., 242 NLRB
1357 (1979).
Member Jenkins would retain the broad order recommended by the
Administrative Iaw Judge. He notes that Respondent's unlawful conduct
included interrogation, threats of discharge, creating the impression of
surveillance, informing employees that it would be futile to seek union
representation or to use the Board's processes, conditioning employment
on voting against the Union. and billing an employee for damages and
suspending him in retaliation for his union activities. Member Jenkins
would find that Respondent's misconduct was sufficiently widespread to
demonstrate a general disregard fir employees' fundamental statutory
rigilts.
Although the Administrative Iaaw Judge specifically found that Re-
spondent violated Sec. 8(a)(l) by conditioning ex-employee Reese's em-
ployment on voting against the Union, he failed to include said finding in
his Conclusions of Law. recommended Order, or notice to employees.
570
ACME DATSUN
to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges
previously enjoyed, and make him whole for any
loss of earnings he may have suffered, in the
manner set forth in the section of the Administra-
tive Law Judge's Decision entitled "The Remedy."
(b) Expunge from its files any references to the
suspension of employee Wallace on May 13, 1980,
and notify him in writing that this has been done
and that evidence of this unlawful disciplinary
action will not be used as a basis for future disci-
pline against him.
(c) Cancel the April 23, 1980, bill requiring Wal-
lace to pay for damages to his demonstrator auto-
mobile.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Highland Park facility copies of
the attached notice marked "Appendix." 4 Copies
of said notice, on forms provided by the Regional
Director for Region 22, after being duly signed by
the appropriate representative of Respondent, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 22,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through
sentatives of their own choice
repre-
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT interrogate employees con-
cerning their union activities.
WE WILL NOT threaten employees with dis-
charge for engaging in union activities.
WE WILL NOT create the impression of sur-
veillance of union activities.
WE WILL NOT condition employment on
voting against the Union.
WE WILL NOT discourage membership in or
activities on behalf of Local 259, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, by billing employees for
maintenance or repair to demonstrator auto-
mobiles in retaliation against their union activi-
ties, or by suspending them and thereafter fail-
ing and refusing to reinstate them because of
their union activities, or by otherwise discrimi-
nating against them with respect to their terms
and conditions of employment, because of such
activities.
WE WILL NOT tell employees that it will be
futile for them to select the Union as their bar-
gaining representative.
WE WILL NOT tell employees that it will be
futile for them to seek to use the processes of
the National Labor Relations Board or to seek
its protection.
WE WIl.L NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under Section 7 of
the act.
WE WILL offer to Lloyd Wallace full rein-
statement to his former position or, if such po-
sition no longer exists, to a substantially equiv-
alent position, without prejudice to his senior-
ity or other rights and privileges previously
enjoyed, and make him whole for any loss of
earnings he may have suffered, plus interest.
WE WILL expunge from our files any refer-
ences to the suspension of employee Wallace
on May 13, 1980, and notify him in writing
that this has been done and that evidence of
this unlawful disciplinary action will not be
used as a basis for future discipline against
him.
571
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL cancel the April 23, 1980, bill re-
quiring Wallace to pay for damages to his
demo.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
a labor organization.
ACME MOTORS, INC., T/A ACME
DATSUN
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard before me on February 9 and 10, 1981, in
Newark, New Jersey. The charge was filed on May 16,
1980, by Local 259, United Automobile, Aerospace and
Agricultural Implement Workers of America' and there-
after complaint2 issued alleging violations of Section
8(a)(1) and (3) by Acme Motors, Inc., t/a Acme Datsun
(herein called Respondent). More specifically, the com-
plaint alleges that Respondent suspended employee
Lloyd Wallace and refused to reinstate him because of
his activities on behalf of the Union in violation of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act,
as amended; interrogated and threatened employees with
discharge and other reprisals because of their activities
on behalf of the Union; created the impression of surveil-
lance of employees' union activities; informed employees
that it would be futile for them to select the Union as
their bargaining representative or to seek the protection
of the National Labor Relations Board; and conditioned
an offer of reemployment upon an employee's promise
not to support the Union, all in violation of Section
8(a)(1) of the Act. The answer denies the commission of
any unfair labor practices.
All parties were represented at the hearing and were
afforded full opportunity to be heard and present evi-
dence and argument. Briefs were filed by the General
Counsel and Respondent. Upon the entire record, my ob-
servation of the demeanor of the witnesses, and after
giving due consideration to the briefs, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New Jersey corporation with its prin-
cipal office and place of business in Highland Park, New
Jersey, where it has been, at all times material, continu-
ously engaged in the business of buying and selling new
and used automobiles and related products and providing
related services. In the course and conduct of its business
operations during the 12-month period immediately pre-
ceding issuance of complaint, Respondent derived gross
revenues in excess of $500,000. During the same period,
Respondent purchased and received, at its Highland Park
place of business, automobiles valued in excess of
' Herein called the Union.
' July 15, 1980.
$50,000, which automobiles were shipped and transport-
ed to New Jersey directly from States of the United
States other than New Jersey and from foreign countries.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On February 2, 1980,3 Lloyd Wallace, an automobile
salesman, returned to work for Respondent under terms
of employment more favorable than those enjoyed by
other salesmen. 4 This was so because of Wallace's great-
er experience as a top salesman working for Respondent
on a previous occasion and for other automobile dealers.
These more favorable terms of employment included,
according to Impellezzeri, $100 per week salary, use of a
company demonstrator (herein called demo) with free
upkeep and maintenance, with a stipulation that Wallace
would not have to pay the monthly charge for the demo
that other employees had to pay, and free hospitalization
and major medical insurance. Other salesmen were paid
between $15 and $20 less per week, were charged from
$604S80 per month for their demos, and had to pay half
of their hospitalization. Thus, the record indicates, as Re-
spondent admits, that Wallace was considered a superior
salesman and a very valuable employee, not only to Re-
spondent generally but to Impellizzeri whose income was
3 Hereinafter all dates are in 1980, unless otherwise specified.
4 Wallace had initially gone to work for Respondent in May or June
1979 and proved to be an excellent new-car salesman. At his own re-
quest, he was made used-car manager and held that position for 2
months, August and September. The position of used-car manager did
not, however, work out for Wallace and he returned to the new-car sales
department at that time, once again to work for Anthony Impellizzeri,
the sales manager who had advised him in the first place against going
into the used-car sales management field. After a week of working for
Impellizzeri back in the new-car sales department, Wallace was called
into the office on September 30, 1979, and told that things were not
working out and that he was being let go. Impellizzeri told Wallace that
the two could no longer work effectively or efficiently together. Wallace
left and shortly after obtained employment with another automobile
agency selling cars. Impellizzeri testified that during Wallace's last week
working for Respondent in September 1979, Wallace was bitter and
pouted, apparently over his failure to make the grade as used- car sales
manager. According to Impellizzeri, this attitude of Wallace's gave rise
to constant clashes over Impellizzeri's authority as sales manager. For
this reason Impellizzeri fired Wallace. Although Wallace testified that he
did not know why he had been fired on September 30, it is quite appar-
ent that a personality clash existed between Impellizzeri and himself.
Nevertheless, about I month after his termination, Wallace received a
telephone call from Charles Weissbord. the general sales manager, Impel-
lizzeri's supervisor, who asked Wallace to consider returning to work for
Respondent. Wallace at first refused because he really did not understand
why he had been terminated the first time. Thereafter, Weissbord called
Wallace weekly, asking him each time to return, and advising him that
they needed him. Finally, during one of these calls in January 1980 Wal-
lace agreed to sit down and discuss the matter over lunch with Impelliz-
zeri.
During the luncheon conversation Impellizzeri asked Wallace to return
to work for Respondent, advising him that sales had been falling off re-
cently and the Company needed a good salesman After a discussion of
the terms of employment, Wallace finally consented to return to work for
Respondent.
572
ACME DATSUN
partly derived from the sales that Wallace and other
salesmen made.
According to Wallace, he was also told either at the
time he was rehired or sometime thereafter that, unlike
other salesmen, he would not be subject to the $250 de-
ductible policy which covered all demos. Impellizzeri
specifically denies that this was ever made a condition of
Wallace's employment. I credit Impellizzeri.
After Wallace returned to work for Respondent he
found that conditions were not exactly as he expected
them to be. He felt that his income was somewhat dimin-
ished because although he still received a certain per-
centage of the total profit just as he had before when he
worked for Respondent in 1979, the amount deducted
from the total profit for advertising and other expenses
before it was distributed had been increased, thus cutting
somewhat into Wallace's own income. Despite his dissat-
isfaction over this fact, Wallace sold cars and quickly
became Respondent's top salesman, receiving an award
in March for selling the most automobiles.
On February 14, General Manager Charles Weissbord
decided to put into writing the longstanding company
policy of requiring all of its employees to pay for the
first $250 damage to any demo, in accordance with the
insurance plan covering the vehicles. A memorandum
was drawn up by Impellizzeri to this effect on that day,
and each of the salesmen were required to sign it during
one of the Company's regularly scheduled sales meet-
ings.
According to Weissbord, although the $250 deductible
company policy on demos5 was first put in writing on
February 14, it had been the company policy long before
that date. Impellizzeri testified that the policy had been
in existence since May 1979. In support of this assertion,
Respondent offered a number of repair bills as evidence
to prove that prior to February 14 employees were re-
quired to pay for damage to their demos whether or not
the damage was through their own fault. Thus, employee
Carlos Santa Cruz, the manager of Respondent's predeli-
very inspector department (herein called PDI) ran a
company car into a pole doing over $800 in damage to
the vehicle. This accident occurred in September 1979
and Santa Cruz authorized deductions from his paycheck
to pay for the damage to the demo s to the extent of the
$250 deductible. Similarly, employee Michael Qualiano,
one of Respondent's salesmen, was involved in an acci-
dent in December 1979 and authorized deductions from
his commissions to the extent of $250 to pay for the
$2,000 damage to his demo. Unlike the accident involv-
ing Santa Cruz, there is no indication that Qualiano's ac-
cident was due to his own carelessness.
The Santa Cruz and Qualiano accidents were very se-
rious with extensive damage caused to the cars they
were driving. With regard to the general enforcement of
the $250 deductible policy by the Company, prior to
& Weissbord testified that employees were responsible for their demos
whether or not the damage done to them was the fault of the employee
himself.
* The demo had not been assigned to Santa Cruz at the time but he
was servicing it when the accident occurred. Under a verbal agreement
made at the time of his hire, he agreed to pay the S250 for damage done
due to his carelessness.
February 14, however, Weissbord testified that the
policy:
. . . was followed by the company but it wasn't
closely adhered to. There were cases where small
scratches and things would go by the boards and
I'd hear about it after the fact.
Likewise, Impellizzeri testified that if a demo received a
dent or a scuff on the side of a door the vehicle would
be taken over to PDI where it would be buffed out if
possible. If successfully repaired, there would be no
charge.7 If PDI were unable to make the repair, the car
would be sent to the repair shop located across the street
and the employee would be charged for parts and labor.
The $250 deductible policy was put into written form on
February 14 to curb neglect, misuse or abuse of the cars,
not to change policy as it stood.
According to Impellizzeri, at the meeting on February
14 when the memorandum was distributed for signature,
he explained to those present that if there were just
minor damages that could be taken care of by the PDI
department without additional labor, it would not cost
anyone anything, that the purpose of the memorandum
was to take care of major damages that were expensive
to repair. Everyone present at the meeting signed the
document including Wallace s and, according to Impelliz-
zeri, no one made any comment about being required to
sign the memorandum except salesman Barry Salit who
asked, "What if my car is in the parking lot and some-
body hits it. Am I responsible?" Impellizzeri replied that
he was. Salit then asked what would happen if he did
not sign the memorandum and Impellizzeri replied that
in that case Salit would have to turn in his demo.9 He
pointed out that all of the salesmen were driving nice
new expensive cars of their choice as demos and for that
reason he did not feel that it was fair that the Company
and he,'1 personally, had to pay out hundreds of dollars
each month to repair the damage to the demos.
Wallace testified that on February 14 there was the
usual salesmen's meeting called by Impellizzeri. All the
salesmen were present. General business topics were dis-
cussed but no mention was made of the $250 deductible.
About 10 a.m., after the salesmen's meeting was over,
Impellizzeri came over to Wallace's desk and threw the
memorandum down and told him to sign it. The two
were alone. Wallace refused, stating that he had not even
read it yet and would not know what he was signing.
Impellizzeri explained that it concerned responsibility of
salesmen for the first S250 damage to their demos. He as-
sured Wallace that the purpose of the memorandum was
to enable Respondent to charge another" employee for
I PDI employees are hourly paid and are used to get new cars ready
for sale. There is therefore no additional cost to Respondent to take care
of minor dents or scratches in demos.
* Later, as new salesmen were hired, they were required to sign and
date this document or similar ones.
o Impellizzeri testified that not all salesmen are assigned demos. They
can and do sell cars without having their own personal demo.
10 Since payments to the repair shop were deducted from the profits
before distribution, Impellizzeri personally lost money through damage to
demos.
I This "other employee" was apparently not named.
573
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demo damage and that Wallace would never be charged
a dime for any damage even if he did sign the memoran-
dum. He told Wallace to sign the document, that it was
only a piece of paper and reminded him that he had been
hired under different circumstances.
12 When Wallace
still refused to sign the document, Impellizzeri told Wal-
lace that if he did not sign the memorandum, he would
be fired. Wallace then stated he would sign the docu-
ment but only under duress. He then did so. According
to Wallace, he signed the February 14 memorandum be-
cause he was promised that it would never cost him a
dime, because he had been hired under special circum-
stances, and because he was threatened with being fired
if he did not do so.
With regard to the events of February 14, Salit testi-
fied that at the regular salesmen's meeting called by Im-
pellizzeri that day, the salesmen present were presented
with the $250 deductible policy memorandum immedi-
ately following a general discussion of business matters.
Impellizzeri explained its contents and told those present
to sign the document. Salit objected and asked what
choice the employees had in the matter. Impellizzeri re-
plied, "If you want to work here, you are going to sign
it. If you don't sign it, you don't work for Acme
Datsun."
From the weight of the evidence and from the testi-
mony of Impellizzeri, Wallace and Salit, I find that there
was a salesmen's meeting on February 14 and at this
meeting attended by five salesmen, 1
3 the $250 deductible
memorandum was introduced and discussed, just as Im-
pellizzeri and Salit testified, contrary to the testimony of
Wallace. I find further, in accordance with Salit's testi-
mony, that Impellizzeri threatened him and the others
with discharge if they refused to sign the document, and
that faced with this threat all five salesmen signed the
document. 4 Finally, I conclude that the memorandum
12 Impellizzeri testified that at no time was Wallace told that the $250
deductible did not apply to him.
13 Three salesmen, Alan Zarak, Leonard Reese, and Arnold Canape,
who were present at the February 14 meeting were not requested to tes-
tify concerning the meeting although Reese, one of the General Counsel's
witnesses, was present at the hearing and testified on other matters.
14 Wallace's description of how he signed the document after the
meeting was over is unsubstantiated and unworthy of crediting for the
following reasons.
I. Wallace's name appears on the document as the second of the five
who were present that day and whom Impellizzeri credibly testified
signed the document. There is no space between any of the names on the
document. It is therefore more likely that Wallace signed after Salit and
before the other three salesmen than that he signed after the meeting.
2. Wallace's statement that the document was not mentioned at the
meeting flies in the face of Impellizzeri's and Salit's contrary testimony
and Salit was a witness for the General Counsel, as was Wallace.
3. Wallace's testimony that Impellizzeri insisted on him signing the
document in order to charge a third employee for demo damage strikes
me as illogical. I do not understand why Wallace's signature would be an
asset in such a plan. Moreover, Wallace did not reveal the name of this
other employee if, indeed, it was divulged to him and there is no record
evidence of any other employee being required to pay for a damaged
demo on or about February 14.
4. If Wallace had a special deal concerning his not being responsible
for severe damage to his demo, why would Impellizzeri insist on his sign-
ing the document at this time.
5. It is patently clear that Respondent considered Wallace a top sales-
man and hired him back with special privileges in order to obtain his ad-
mitted superior talents. It is incredible to believe that Respondent would
risk losing this talent by telling Wallace on February 2 that he would not
of February 14 was merely a matter of putting into writ-
ing the policy already in effect, requiring employees who
suffer serious damage to their demos or other company
cars to pay for such extensive damage to the limited
extent of the insurance coverage; i.e., $250. I also find
that it was not the policy of Respondent, prior to Febru-
ary 1415 to charge employees for minor scratches, scuffs,
or dents which could be repaired by PDI employees.
Starting with the February 14 meeting and Impelliz-
zeri's threat to discharge employees who failed to sign
the $250 deductible memorandum, the relations between
Respondent and its employees went steadily down hill.
During morning meetings Impellizzeri, according to
Wallace, would make statements concerning the oper-
ation of the business and tell the employees that if they
did not like it, they could leave. This occurred in March.
On April 2 Wallace, dissatisfied with working conditions,
contacted Joseph Cravotta, business representative for
the Union, by telephone and asked him to organize the
employees of Respondent, The two arranged for a meet-
ing at which Cravotta was to explain to Respondent's
employees the function of the Union and to proceed
with the organizing campaign.
On April 8 the meeting took place at a diner in Edison,
New Jersey. Between 15 and 18 employees of Respond-
ent's sales, service, and PDI departments attended. Cra-
votta explained the organizing procedure and signed up a
number of the employees who were present. Wallace
was put in charge of organizing the salesmen, and em-
ployee Eugene Peppe's was put in charge of organizing
the service department. A few union cards were signed
by employees that night which were insufficient in
number to proceed. A few other employees took cards
with them with the intention of deciding later whether
they wished to sign. They were told to return their
signed union cards to Wallace. Wallace took several
cards with him at the close of the meeting to distribute
to employees who did not attend. Cravotta instructed
him to call back once he obtained sufficient additional
signed cards to enable the Union to proceed.
The following day certain of the employees who had
attended the meeting but had not signed union cards did
so later and returned them to Wallace while at work.
Still others who had not attended the meeting received
union cards from Wallace while at work and were re-
quested by him to sign them. Some complied and re-
turned the signed cards to him. Much of this activity oc-
curred in or around Wallace's office and was witnessed
by other employees.
On the morning of April 10 Wallace met with Cra-
votta and gave him the additional signed union cards
be responsible for serious damage to his demo, then on February 14, 12
days later, going back on its word and threatening Wallace with dis-
charge unless he agreed to such responsibility.
In my opinion, Wallace concocted the story of his later private signing
of the document in order to explain away his failure to object to his
having to sign the document at the earlier meeting. Wallace on this and
several other occasions tried to pad his case.
s Evidence to the contrary was not forthcoming.
i" Though Peppe was put in charge of organizing the service depart-
ment it appears that Wallace did the actual organizing there too. Peppe is
still employed by Respondent.
574
ACME DATSUN
which he had obtained the day before. Later that day
Cravotta called Wallace and told him that there would
be a meeting in the showroom. He requested Wallace to
round up the men and tell them to be prepared to be at
Weissbord's office. Wallace agreed to do so as soon as
Cravotta arrived in the showroom. When Cravotta ar-
rived, Wallace went over to the PDI department, ac-
companied by Salit. Wallace and Salit brought the men
out of the PDI building over to the mechanical shop, got
all the mechanics and salesmen and brought them into
the hallway where Weissbord's office is located. The em-
ployees and Cravotta entered Weissbord's office where
Cravotta placed the union authorization cards on Weiss-
bord's desk, upside down so that the signatures could not
be seen. Cravotta introduced himself, stated that he rep-
resented Respondent's employees, demanded recognition
and requested that negotiations begin. Weissbord refused.
There is no indication that Respondent, before April 10,
was aware that there was union activity among its em-
ployees. After the demand of April 10, Weissbord ad-
vised Paul Jaskowski, the owner, that there were people
from the Union who were soliciting. That afternoon Cra-
votta filed his petitions with the Labor Board to repre-
sent the sales and service department employees of Re-
spondent.
About April 11 Weissbord approached Salit while
both were out on the selling floor and initiated a conver-
sation.17 Other salesmen, including Wallace, were
nearby. Weissbord complained:
Hey Barry, why do you have to start this union
business? Why all of these problems with the
Union? I don't understand. How come you are not
man enough to stand on your own two feet? How
come you have to hide behind the herd? What is
the matter with you guys? You can't come up to me
like a man and say what you mean? You have to go
through this union rep? He is not going to help you.
Why don't you stand on your own two feet? How
come you guys have to go sneaking off to a diner
to have a meeting? Why couldn't you hold the
meeting right here at the place of work? Why did
you have to go to a diner like a sneak behind our
backs and hold a union meeting?
Salit objected:
You know as well as I do, it is illegal for an em-
ployee to organize a union on company property.
You are the general manager of the corporation, I
am just an employee. That is why we went outside
of the premises to have a meeting. It is only logical
that we couldn't have a private meeting with you
guys around all the time looking over our shoul-
ders.
'7 Counsel for the General Counsel supplied the date May II while
adducing testimony from this witness. The subject matter-the meeting at
the diner-and the fact that by May 11 the election had been cancelled
convinces me that this discussion took place much earlier. From the
tenor of the conversation it is quite clear that it took place early during
the organizing campaign, very possibly shortly after Cravotta demanded
recognition, since the question of the "union rep" was brought up by
Weisabord during the discussion.
Though Weissbord denied that this conversation ever
took place, I find to the contrary and find further that
Respondent, through Weissbord, interrogated the em-
ployees present in violation of Section 8(a)(1).
On April 12, Leonard Reese, an exemployee of Re-
spondent, received a telephone call from Impellizzeri
who asked him if he would like to work for Respondent
again. Reese acknowledged that he would. Impellizzeri
then told Reese that there was a union organizational
drive going on at the time and that if he came back to
work for Respondent, it would be on condition that if
there were a union election, Reese would have to vote
against the Union. Reese replied that he would get in
touch with Impellizzeri later but he never did. Impelliz-
zeri testified that he did, in fact, call Reese but that the
call concerned only a deal that Reese had had involving
a pickup truck when he worked for Respondent. Impel-
lizzeri denied that he offered Reese his job back in return
for voting against the Union and stated that it was Reese
who mentioned that he had heard from another employ-
ee of Respondent, John D'Imperio, 8 that the Union had
filed a petition and that when he did so, Impellizzeri
made no comment. Impellizzeri testified that Weissbord
had informed him of the petition being filed and that a
few days later Respondent's attorney, Julius Steiner, laid
down guidelines for Impellizzeri to follow, namely, that
he was not to spy, interrogate, promise, or threaten. It
was, according to Impellizzeri, because of Steiner's
advice that he did not continue the conversation with
Reese about the Union, but remained silent.
With regard to this conversation, I find that it oc-
curred as Reese described it and do not credit Impelliz-
zeri.' 9 Consequently, I find that by conditioning Reese's
employment on a vote against the Union Respondent,
through Impellizzeri, violated Section 8(a)(l) of the Act.
is D'lmperio was not called to testify by either Respondent or the
General Counsel.
" Though Impellizzeri stated at one point that he did not reply to
Reese's bringing up the subject of the Union, in another part of his teati-
mony he stated that he told Reese, "Yes, I'm not allowed to discuss it.
Periodl" This inconsistency is noted. Elsewhere in his testimony the fol-
lowing exchange took place with regard to the Reese/Impellizzeri con-
versation:
Q. Well, what happened already with regard to the Union at that
time?
A. I don't know.
Q. Well, why did you say "yes?" I mean, had something hap-
pened?
A. You asked me a question. It's a beautiful day, yes.
Q I know, but what happened with regard to the Union? Had a
petition been filed? .
A, I don't know.
Thus, Impellizzeri contradicts himself once again. In one breath he tea-
tifies he had received advice from the lawyer and in the next he says he
did not know whether a petition had even been filed. My crediting Reese
over Impellizzeri is based on Reese's demeanor being more convincing
than Impellizzeri's, on the inconsistencies outlined herein and on the fact
that the petition was filed on April 10 and it is highly unlikely that by
April 12 Respondent had already received a copy of the petition and had
time to contact a lawyer and have that lawyer already visit its establish-
ment and make an advisory speech to management employees. It is also
more likely that Impellizzeri knew about the petition and brought up the
subject than that Reese who did not even work for Respondent was told
about it by a third party and brought the subject up for no apparent
reason during his conversation with Impellizzeri
575
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 14 Jaskowski entered Wallace's office while
no one else was present.2 0 He asked Wallace what he
knew about the Union and who started the Union. Wal-
lace replied that he knew nothing about the Union and
refused to discuss it. Jaskowski stated that if he found
out who started the Union that he would be fired imme-
diately. He added that he had ways of finding out be-
cause his brother was a union president. Wallace in-
formed Jaskowski that it is "against the rules of the Na-
tional Labor Relations Board to fire anybody" for that
reason, whereupon Jaskowski replied, "F- the National
Labor Relations, I paid them off before and I will pay
them off again. I dealt with the National Labor Relations
Board 3 years ago.2 1 I paid them off and won." Wallace
replied, "That's impossible!" Jaskowski stated, "Nothing
is impossible, I hold the keys to this place and there is no
outsider ever coming into this place." Wallace replied,
"Don't bet on that, Paul."
I find that Respondent violated Section 8(aXl) of the
Act on April 14 by Jaskowski's interrogation of Wallace
as to what he knew about the Union and about who
started the Union; by his threat to Wallace and other em-
ployees that if he found out who started the Union, that
employee would be fired immediately; by his statement
that he had ways of finding out who started the Union
because his brother was a union president inasmuch as
this statement clearly gave the impression that he intend-
ed to place the employees' union activities under surveil-
lance;22 by his statement that he had paid off the Nation-
al Labor Relations Board and would do so again, which
statement clearly implies that it would be futile for Re-
spondent's employees to select the Union to represent
them, to seek to use the processes of the Board, or to
pursue the right of its protection; and by his statement,
"I hold the keys to this place and there is no outsider
ever coming in this place," which statement similarly im-
plies that it would be futile for Respondent's employees
to select the Union to represent them.
Also on April 14 Jaskowski approached Salit and en-
gaged him in conversation.2 3 Other salesmen, including
Wallace, were on the selling floor present or nearby. Jas-
kowski began the discussion by saying, "Let's go to
church, who started all this? Let's go to confession." He
continued:
I want to know who started this business with the
Union. Who started it? Was it you? Was it Lloyd? I
want to know, tell me, come on. Look me in the
'0 The description of this incident is based on Wallace's credited testi-
mony. Jaskowski's version of this conversation and his denials are not
credited.
ai Jaskowski admitted that there had been an earlier union organiza-
tional campaign about 5 years before.
"s At the close of the hearing the attorney for Respondent moved for
the dismissal of par. II of the complaint which alleges, among other
things, that on April 14 Charles Weissbord created the impression of sur-
veillance. Clearly, it was Jaskowsaki who created the impression of sur-
veillance as noted above. To the extent that the allegation involves
Weissbord, the motion is granted. To the extent that Jaskowski was in-
volved in the incident described above, since the occurrence of the inci-
dent was fully litigated at hearing, the motion is denied and the violation
found.
"' The description of this incident is based on the credited testimony
of Salit. Jaskowski's denials are not credited.
eye, I am talking to you. I want to know who start-
ed this union business. Now tell me, come on, come
on. Let's go. Did you start it? Who started the
union business?
To this Salit simply replied that he did not know.
Respondent, by Jaskowski's interrogation of Salit
during this conversation, clearly violated Section 8(aXl)
of the Act and I so find.
Later the same day, another conversation2 4 occurred
which Salit overheard but in which he was not initially
involved. Salit was sitting at his desk which is located
just outside of Wallace's office, the door to which was
open at the time. Inside the office were Jaskowski,
Weissbord, and Wallace. They were talking about the
Union and who started it. Salit overheard the question
asked, "Why did you guys go to the Union?"
Jaskowski then came out and told Salit to come into
Wallace's office because he wanted to talk to him. Salit
stated that he really did not wish to get involved because
he knew it would lead to no good. Jaskowski told Salit
to come in anyway. When Salit got into the office, Jas-
kowski asked, "Who started this? What have you guys
started? What did you do this for? If you have problems,
you can come to me, that is what I am here for. I am
here if you have any problems. We don't need any out-
siders. We don't need any union." Then Jaskowski
turned to Salit and said, "If there were problems and
there was no communication with management, why
didn't you come to me?" Salit replied that when he had
done so in the past, it had been to no avail.
I find the interrogation contained in this conversation
violative of Section 8(a)(l) of the Act.
On April 15 a second union meeting was held with a
larger number of Respondent's employees present, in-
cluding Wallace. The purpose of the meeting was to
advise those who had signed cards what procedure
would be followed thereafter. Cravotta told them that
the NLRB would again be contacted in order to sched-
ule an election date. He also answered questions posed
by the employees concerning such matters.
On April 17, Wallace put the demo which he had been
assigned into the repair shop to have an antifreeze leak
fixed. Other than the leak, the car was, as far as Wallace
knew, in perfect condition. Sometime thereafter, in mid-
April Salit got into a conversation with Pat Chrinko25
outside the PDI department where Salit had gone to
check on a car. 2 6 Present also were three individuals
who worked for the PDI department-Robby, Robert,
and Stevie. The three PDI employees were standing
around Wallace's demo looking at it and laughing.
Chrinko, who was standing by the windshield, was also
laughing. He said to Salit, "Look at this car!" Salit asked,
"What is the matter with the car?" Chrinko replied,
"They are trying to say that Wallace had extensive
2" The description of this incident is based on the credited testimony
of Salit.
2' Chrinko was at one time the PDI manager. Later, after the petition
was filed, he was made a salesman. His name also appears as Patrick
Chrinkle in the record.
26 The description of this incident is based on the credited testimony
of Salit.
576
ACME DATSUN
damage on the car." Salit looked at the car and said,
"Where is the damage?" Chrinko answered, "That is
what we are trying to say." The four PDI employees
continued to laugh and one27 of them commented, "Boy,
these guys are really going fishing. They are really on a
fishing expedition. They are trying to find something to
bag him." When Salit asked what the matter was with
the car, Chrinko said something about "around the wind-
shield." Salit looked at the place indicated and noted that
there was a hairline scratch approximately an inch or an
inch-and-a-half in length on the right windshield pillar
which looked, according to Salit, like any kind of a
scratch a car might get at a car wash or anywhere. The
scratch was the only thing he saw wrong with the car
other than some water spots on the hood.
Salit's description of this incident is fully credited. Al-
though it would have been, as far as the record indicates,
a simple matter to call one or more of the PDI employ-
ees, including Chrinko, 25 the PDI manager, to dispute
Salit's testimony, Respondent failed to do so.
According to Impellizzeri, on Monday morning, April
21, he arrived at work about 8:50 a.m. As he was walk-
ing toward the main building he was called over by Pat
Chrinko, whom Impellizzeri referred to as the PDI su-
pervisor. Chrinko told Impellizzeri to look at Wallace's
demo. When Impellizzeri did so, Chrinko allegedly
pointed out damage which had been done to it. Impelliz-
zeri testified that Wallace had been instructed to use the
car over the weekend of April 19 and 20, after which he
was to turn it in since it had been sold. When he saw the
damage to Wallace's car, he went into the office and ap-
proached Wallace on the subject. Wallace replied that he
did not know anything about it. He went across the
street, looked at it, and came back to the office. Impelliz-
zeri said, "We'll see what we can do."
According to Impellizzeri another conversation took
place between Impellizzeri and Wallace when Wallace's
demo was between the PDI department and the body
shop. During this conversation, Impellizzeri told Wallace
that he would try to get the work done as cheaply as
possible, that he was not out to hurt him. Wallace, how-
ever, turned a deaf ear toward Impellizzeri and did not
want to know anything about it. Wallace, Impellizzeri
testified, took the position that the problem of the demo
was Impellizzeri's, not his own and indicated an unwill-
ingness to take responsibility for the damage.
Wallace's testimony concerning communications be-
tween himself and Impellizzeri with regard to his demo
differ markedly from Impellizzeri's. Wallace testified, as
noted earlier, that when he put his demo into the repair
shop on or about April 17 to get the leak fixed, it was in
perfect condition except for the leak. He did not drive it
again thereafter and never saw the car in a damaged con-
dition. Thus, he implicitly denies that the conversations
with Impellizzeri, which Impellizzeri stated took place
on April 21 or 22, ever occurred. He denies that Impel-
lizzeri showed him damage to the demo and indicated
1T It is not clear from the transcript which of the four employees made
these comments.
'8 There is some indication that Respondent's attorney may have
spoken to Chrinko while preparing for the hearing. See the testimony of
Lunardelli.
that he knew nothing of any damage to the demo until
he was presented with the bill on April 24.
With regard to this credibility issue concerning wheth-
er or not Impellizzeri showed the demo damage to Wal-
lace and discussed it with him on three different occa-
sions before it was repaired, I credit Wallace and find
that no such conversations ever took place.
According to Impellizzeri, after his conversation with
Wallace about the demo damage he talked to Weissbord
and informed him of the situation. Weissbord2 9 came out
and physically inspected the car with Impellizzeri show-
ing him the damage. At this point no work had been
done on the car. Weissbord and Impellizzeri then tried to
figure out the least expensive way to repair the damage.
The car was sent over to the PDI department where, ac-
cording to Impellizzeri, they tried extensively, all morn-
ing until lunchtime, to compound and buff off the
damage marks, but this proved unavailing. At that point,
Impellizzeri testified, he realized that the car would have
to go to the body shop and he sent it over there. The
body shop reported that the car needed extensive work
and was then given the okay to start working on it.
With regard to the damage to Wallace's demo, Re-
spondent called Thomas Nicastro, body shop manager,
an admitted supervisor under the Act, to testify. Nicastro
testified that Impellizzeri brought the car in question
over to the body shop to be repaired and identified an
exhibit offered to him for identification as the bill for re-
pairs30 done to Wallace's31 car by the body shop. He
testified that he inspected the vehicle and noted that it
had had damage done to it and foreign matter deposited
upon it. Nicastro stated that from the damage done to
the car, it appeared as though it had been following a
truck down a highway which splattered it with a sub-
stance which he could not remove. He testified that the
finish, where damaged, had to be wet sanded and clear
coated, then compounded and polished. Nicastro added
that there had been molding damage which he had been
able to correct by polishing so that the bill which had
initially been higher, was subsequently reduced. liHe
noted that there had been a scratch on the door glass on
the right. The final bill was for $192.60 as opposed to
$219 which was the total for the initial bill. The final hill
received into evidence reflects the work which Nicastro
claims was done. Nicastro admitted that he never dis-
cussed the damages to Wallace's demo with Wallace. 32
29 Weissbord did not testify with regard to this alleged conversation.
so Although at one point it appeared as though Nicastro was claiming
that he had done the repairs himself, at another point it was clarified that
he had not.
a3 Although the car had been assigned to Wallace, Nicastro admitted
that he, himself, had been using it at the time. Thus, it is quite possible
that whatever little damage might have been done to the car may have
occurred while Nicastro was using it. The point was not pursued by
counsel.
a' If one were told that he was going to be billed for damages to .al
automobile as Impellizzeri claims he told Wallace before repairs were ac-
tually made. I would assume that the person to be billed would be inter-
ested enough to check into the matter with the individual doing the re-
pairs before or while they were being done, since the repairs were being
done where both Wallace and Nicastro were working, right there across
the street from each other. Nicastro admitted that he never had any con-
versations with Wallace concerning the damage to the car or about the
Continued
577
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In contradiction to Salit's testimony concerning the
damage to the car, Nicastro stated that there were no
watermarks on the car and that the damage assessed had
nothing to do with watermarks. By so testifying he indi-
cated an affirmative knowledge of the subject matter,
that is, of what damage there was or was not, insofar as
Wallace's car was concerned. Yet, Nicastro also testified
that he had not worked on Wallace's car personally and
could not recall who had done so. The fact that Nicastro
could recall that there were no waterspots on the auto-
mobile but could not recall who worked on the car gives
me pause. I have difficulty crediting Nicastro on this
issue on two grounds. First, the repairs, if made at all,
were allegedly made on April 21 or 22; the bill is dated
April 23; a hassle over the demo damage and bill oc-
curred immediately thereafter, if not before (according to
Impellizzeri); Wallace refused to pay the bill and was
suspended on May 13; and finally the unfair labor prac-
tice was filed based on his suspension on May 15. All of
these occurrences indicated or should have indicated to
Respondent that the facts surrounding Wallace's suspen-
sion were important enough to keep track of. Yet Re-
spondent did not do so. It could not even come up with
the name of the mechanic who supposedly worked on
the car.
Secondly. in the ordinary course of business, a me-
chanic reports his hours on each job to his superior. This
must be done in order to charge a customer for labor.
Indeed, the bill for the damage to Wallace's demo was
marked $105 for labor, then changed to $103 for labor. 33
If this work was actually done, Respondent would neces-
sarily have records to show which employee worked on
the car and put in $103 worth of labor. Respondent
would know from these records who worked on this car,
if indeed anyone did, yet it failed to put that employee
on the stand. I conclude that either no one worked on
Wallace's car because the damage was virtually nonexis-
tent or whoever worked on the car did very little and
was not produced to testify for fear that he would accu-
rately state that there was virtually no damage.
The bill for $192.60 34 for the alleged repair of Wal-
lace's demo was given by Nicastro to Impellizzeri, prob-
ably on April 24. On that day, according to Wallace,
Weissbord came into his office and asked him if he
would pay for the damage to his demo. Wallace asked,
"What demo damage?" and added that he was unaware
that there was any damage to his demo. Weissbord
stated, "Well, you are now, and I will show you the
bill!" Weissbord then described the damage as a scratch
on the glass, a scratch on the chrome, and some spots on
the paint. Wallace said, "Show me the demo damage!"
car in general. This fact is, in my opinion, an additional reason for con-
cluding that Wallace, contrary to Impellizzeri's testimony, was never told
that work was being done on the vehicle before he was presented with
the bill.
3S Nicastro testified that this sum represented "a good 8 hours." He
also testified that labor is $18 per hour. Nicastro's arithmetic is wanting.
s4 Between the descriptions of the damage to Wallace's demo as given
by management witnesses and by Salit, I credit Salit's description and
conclude that it was extremely negligible. I also credit Salit's testimony
to the effect that he, himself, had had scratches and nicks in his demos
from normal usage and Respondent never attempted to force him to pay
for such damage nor applied the $250 deductible policy in those in-
stances.
but Weissbord replied that the car was over at the body
shop, inside the building, that it was impossible for Wal-
lace to see it at that time, and that in any event, he
thought it had already been repaired. Wallace demanded,
"How do you repair something and then try to charge
me for it, without my consent. I have never paid a bill in
my life unless I authorized it." Weissbord demanded,
"Then you are refusing to pay this bill?" and threw it on
Wallace's desk. Wallace became angry 3 5 and refused to
look at the bill. Weissbord told Wallace that he wanted
him to sign a payroll deduction slip to have money de-
ducted from his pay for the damage. Wallace refused. He
stated that he had been hired under more favorable terms
than the other employees, that under these terms he was
not responsible for demo damage and that moreover the
$250 deductible policy was for damage due to accidents,
not for maintenance upkeep. Weissbord replied that if
Wallace did not pay for the damage he would take his
demo away. Wallace replied that if Respondent took
away his demo, he would have to rent one at Respond-
ent's expense. Wallace then asked Weissbord if he was
receiving this treatment because of his involvement with
the Union and Weissbord replied, "What else?" 3 6 Weiss-
bord said that the "thing with the Union" was getting
him down and told Wallace that he was going to blow a
good job with "this union activity business." 37
Weissbord testified concerning the April 24 conversa-
tion that he did, in fact, have a conversation on that date
with Wallace after hearing from Impellizzeri about the
damage to Wallace's demo. He determined that he would
speak to Wallace about it and did so. During the conver-
sation, according to Weissbord, he pointed out to Wal-
lace that he had signed an agreement to pay for damages
to his demo, and that he obviously had sustained such
damages. He argued that it was company policy to re-
quire payment for such damages, that in the past the
Company had required other employees to pay for dam-
ages to their demos, and that in the future he could not
ask other employees to pay for similar damages if Wal-
lace were not required to pay for his damages. He added
that if Wallace refused to pay for the damage to his
demo, Weissbord would have to suspend him until he
did pay. He then added, "I don't want to do anything at
this time. Let's think about it. Let's let a week or so go
by and we'll talk about it later on." Wallace replied that
he had checked with his lawyer and had been told that
what Respondent was doing was illegal and that he did
not have to pay for the damages to the demo. Weissbord
specifically denied that Wallace asked, during this con-
versation, whether he was being charged for the demo
damage because of his union activity. He likewise denied
making the response, "What else?"
With regard to the bill for the damage, Weissbord
stated that he just assumed on faith that the billing was
correct and that Nicastro charged employees at a lesser
a5 Wallace testified at first that he had become "quite heated" but on
cross-examination later denied it. I found Wallace generally credible but
not totally frank at all times.
36 Weissbord specifically denied making this statement
37 The order in which the subjects of demo damage and union activity
were brought up by Weissbord during this discussion is unclear from the
record.
578
ACME DATSUN
rate than customers. He did not, however, discuss the
bill with Nicastro. Weissbord testified that the April 24
conversation with Wallace was the first conversation
which he had with him concerning the damage to his
demo.
Of the two versions of this conversation I credit Wal-
lace's and find that it took place just as Wallace de-
scribed. In short, Weissbord admitted that Respondent
was billing Wallace for nonexistent or minor damage to
his demo in retaliation for his union activity or suspected
union activity.
On April 28, a conference was held and agreements
reached on the date, time, and place for holding the rep-
resentation elections. That evening, perhaps sparked by
the events of the day, Jaskowski visited Wallace in his
office and brought up the subject of the Union. The dis-
cussion continued as they both walked out onto the
showroom floor where other salesmen were present.""
Jaskowski stated that he had found out that it had been
Wallace and Salit who had started the Union, and that
Wallace was the leader. He continued, "I told you before
that I would fire the leader of the whole thing, and I
would fire everybody that was involved in this union
thing." Wallace reminded Jaskowski once again that
firing employees for engaging in union activities was
"against the NLRB rules." Jaskowski stated, "It is just a
matter of time before it is all over for you guys." He
added that Wallace and Salit were both on countdown
time, as of that time, whether the Union got in or not.
He stated that they had 60 days, that they had crossed
the river, and there was no turning back. Jaskowski said
that if the Union did not get in, they would have 60 days
and if the Union did get in, he would take his time and
find a way to get rid of both of them. He told Wallace
that he should never have gotten involved and if he had
not gotten involved, "he would not be in this hot
water." 39
I find Jaskowski's threats, in their various forms, to
discharge Wallace and Salit clear violations of Section
8(a)(l) of the Act.
On April 29 Wallace came in to deliver a car on his
day off. The automobile was to have a sunroof installed
by the PDI department. This had not been done. When
Wallace asked Impellizzeri about the matter, Impellizzeri
sent Wallace to talk with Weissbord about it. According
to Wallace, when he brought up the subject of the sun-
roof not being installed on time with Weissbord, the
latter stated that had Wallace not been the leader of this
union activity, there would not be a slowdown by the
38 The description of this incident is based on the testimony of Wallace
and Salit. Wallace testified that Jaskowski. in addition to the statements
described herein, also repeated some of the remarks he had made during
the April 14 conversation. Though Wallace is credited on this point, rep-
etition of these remarks here would merely prolong this decision and add
nothing to the recommended remedy.
Though Respondent called several employees as witnesses to testify
that they attended meetings where management discussed the Union in a
rather innocuous fashion and did nothing more than hand out booklets.
these employees were all mechanics or service people and it is interesting
that Respondent did not call any of the other salesmen who were present
when Jaskowski allegedly threatened Wallace and Salit to deny that such
threats took place.
"' Jaskowski denied that this conversation ever took place. Wallace
and Salit are fully credited. Jaskowski's denial is not.
men in the PDI department. Weissbord then told Wal-
lace that he should go over and talk to the men and tell
them to forget about the Union, because if the Union
gets in, it would not be any good for them anyhow. Wal-
lace replied that it was up to the men. In his testimony
regarding this incident, Wallace stated that he did not
know whether or not the PDI employees were actually
engaged in a slowdown.
The General Counsel contends that Weissbord's state-
ment is a threat of reprisal but offers no argument as to
why it should be regarded as such. On its face it would
appear that Weissbord thought that the sunroof was not
ready because he suspected the PDI employees were en-
gaged in a slowdown, and the slowdown was connected
to the union activity which was by then common knowl-
edge. Weissbord merely stated his opinion and I find no
threat therein. Similarly, the General Counsel's conten-
tion that the statement gives an unlawful impression of
surveillance of union activity is not supported by argu-
ment of any kind in the submitted brief However, I do
find that Weissbord's telling Wallace to go over and tell
the PDI employees "to forget about the union because if
the Union gets in, it wouldn't be any good for them
anyhow" is interference proscribed by Section 8(a)(l).
Though not specifically alleged in the complaint as a
violation, the matter was fully litigated at the hearing
with Weissbord40 denying that the incident ever hap-
pened. I find, on the contrary, that it occurred just as de-
scribed by Wallace and that Weissbord's statement was
in violation of Section 8(a)(1).
During the hearing Respondent called as one of its
witnesses Hans Grasso,4 ' a body shop employee who
works for Nicastro. Though clearly not called to testify
concerning this incident, Grasso stated that in April and
May Nicastro spoke %with im about the Union and asked
him if he "would like the union," or "felt like having a
union."
Following the close of the hearing, the General Coun-
sel moved to amend the complaint to add the allegation
that Respondent, through Nicastro, had unlawfully inter-
rogated Grasso in violation of Section 8(a)(1). Inasmuch
as Respondent had the opportunity at the hearing to call
Nicastro to deny that he ever interrogated Grasso, and
Nicastro was, in fact, called and did deny asking Grasso
about his union sympathies, I find that the matter was
fully litigated and therefore grant the motion to amend. I
also credit Grasso's testimony and reject Nicastro's
denial of the interrogation. Consequently, I find that Re-
spondent violated Section 8(a)(1) through Nicastro's in-
terrogation of Grasso.
Meanwhile, according to Impellizzeri, in early May, it
became harder and harder to work with Wallace. Jas-
kowski criticized his motivation. Wallace, on the other-
hand, testified that his sales continued to be high. Inas-
much as Respondent must have sales records and could
have produced them to disprove Wallace's claims and
failed to do so, I credit Wallace's testimony that he con-
4' Impellizzeri could not recall his part in the incident.
"4 This individual's name appears elsewhere as Johann Grassl. Inas-
much as the parties referred to this person in their briefs as Grasso, I
shall do the same herein in order to avoid confusion.
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinued to be one of Respondent's top salesmen during the
first 2 weeks of May.
According to Wallace, on or about May 742 Jaskowski
approached him once again on the showroom floor in
the presence of Salit and other salesmen. Weissbord also
passed by from time to time. Jaskowski said he knew
who started the Union and that Wallace was the leader.
He added that whatever the outcome of the voting, both
Wallace and Salit would be discharged along with all of
the other people involved in the union activity. Once
again, Wallace testified that he told Jaskowski that this
would be "against the NLRB rules to discharge any-
body" and once again Jaskowski replied, "F- the
NLRB!" Jaskowski reiterated how he had been involved
with the Union 3 years before.
Jaskowski denied that this conversation took place and
added that he was at a navy reunion in Boston between
May I and 11 and was not present at the dealership
during this period.4 3 Weissbord denied that any such
conversation took place Salit who supported Wallace's
testimony with regard to previous incidents did not do
so in this case.
Inasmuch as virtually everything that Jaskowski sup-
posedly said on this occasion had been said by him,
almost word for word before on previous occasions, I
doubt seriously that they were reiterated as Wallace de-
scribed, for a second or even a third time. In the total
absence of corroboration by Salit or anyone else, I con-
clude that Wallace was in error in testifying about the
May 7 incident and find, rather, that these things hap-
pened during the earlier confrontations concerning
which he credibly testified.
According to Weissbord, he called Respondent's attor-
ney sometime in April, presumably late April, and told
him that Wallace had signed the memorandum accepting
responsibility for any damage to his demo and was now
refusing to pay for damage which had occurred. He sug-
gested that it would be a good thing if he suspended
Wallace but because of the union campaign he was
unsure of what he should do. He was advised to do
whatever he would have done in the absence of the
Union. Weissbord told the lawyer that but for the pres-
ence of the Union he would have suspended Wallace. He
was then told that he should then go ahead and suspend
him.
The election, which had been scheduled for May 12,
was canceled on May 9 after the Union filed a motion to
withdraw its petitions. On May 1344 Wallace was called
into Impellizzeri's office where he found Weissbord and
Impellizzeri waiting. Weissbord asked Wallace if he still
refused to pay for the damage to his demo and Wallace
replied that he did. Weissbord then asked if Wallace still
refused to sign the payroll deduction slip which he then
showed him and Wallace again replied that he did.
4" The date was supplied by counsel for the General Counsel during
her examination of the witness.
4' Employee Thomas Moffa testified that he worked for Respondent
during April and May 1980 during the organizational campaign when the
election notices were posted on the bulletin board and saw Jaskowski
there every day. He could not recall any time when Jaskowski was
absent for an extended period of time. Thus, Moffa contradicted Jaskow-
ski's story about being out of town between May I and 10.
" This incident appears as described by Wallace.
Weissbord then asked Wallace if he would pay for the
damage on a monthly basis like the rest of the employees
and Wallace replied that he had been hired under differ-
ent, more favorable terms. Wallace then asked Weissbord
if he was trying to build a case against him because of
his union activity and Weissbord admitted that he was.
Wallace asked Weissbord if he knew that such a firing
would be illegal and Weissbord replied that he was sus-
pending Wallace as of that moment because without a
demo Wallace could not work for Respondent and he
was taking his demo away. 45 Wallace then left after
being told to do so by Weissbord.
Impellizzeri testified that he was present in his office
on May 13 when Weissbord discussed with Wallace the
damage to Wallace's demo. Before this meeting Weiss-
bord told Impellizzeri that he had come to a decision on
how to handle the problem of Wallace's demo damage
and was going to speak to him. He stated to Impellizzeri
that the problem was interfering with business as usual.
According to Impellizzeri, the meeting began when
Weissbord and Wallace arrived at Impellizzeri's office at
the same time. Weissbord asked Wallace how to solve
the problem of the damage to his demo. He told Wallace
that he was backing him (Weissbord) against the wall.
Weissbord said, "We've got to run the company and
you're breaking it, you know, you're breaking the rules
and the agreement." Wallace replied that he had signed
the agreement under duress and that the agreement did
not apply to him. He stated that he was the best sales-
man and for that reason he should get special treatment.
Weissbord acknowledged that Wallace was the best
salesman but nevertheless insisted that he pay the bill
either in a lump sum or in payments. Weissbord, accord-
ing to Impellizzeri, suggested that if Wallace did not
want to pay for the damage his demo would have to be
taken away but he could still keep his job. Impellizzeri
agreed but Wallace replied that he would not work there
without a car because he needed a car. He offered to
rent a car and send the bill to the Company. When this
offer was apparently rejected, Wallace then threatened
to take the Company to court. When Impellizzeri was
asked if there was any discussion concerning the Union
during this conversation, he replied, "I don't think so."
Then Impellizzeri was led by Respondent's counsel as
follows:
Q. Did Wallace contend during this conversation
that this was just a ploy to get him because of his
union activity?
A. You have to give me a definition of "ploy."
Q. That this was a setup ....
A. Yes.
Q.... merely designed to ....
A. Yes.
Q.... get rid of him because of his union activi-
ties?
45 There was some testimony that salesmen could work without demos
but I do not find this testimony controlling since in any case Wallace had
already indicated an unwillingness to work without a demo, the free use
of which had been one of the conditions of his employment prior to his
involvement with the Union.
580
ACME DATSUN
A. Yes.
Q. He did say that?
A. Oh, yes.
Q. And what reply was made to that and by
who, when he did say it?
A. I shook my head and said no. Charlie an-
swered him directly, no. I said, come on, we know
each other too many years, this is not our level. But
here again it was like, I'll get you in court.
Q. By the way, were Wallace's union sympathies
known to you?
A. No.
Q. You didn't know whether he was for the
Union or against the Union during the time the
union campaign was going on?
A. Lloyd was very careful, as myself, not to get
in discussions.
According to Weissbord. he called for the meeting
with Wallace on May 13 and asked Impellizzeri to set it
up. Weissbord testified that at the meeting, he said to
Wallace, "Lloyd, you've had time to think about it and
I've had time to think about it." Wallace asked, "Think
about what?" Weissbord explained, "We're going back to
the demo damage. I've had time to think about it and I
have to enforce it and I must ask you to pay. I have the
document typed up for you to sign, authorizing us to
deduct it from your pay. If that doesn't suit you, we can
do it anyway you can work it out, but it has to be paid."
Wallace replied, "I'll tell you one more time, I'm not
going to pay it." Weissbord offered to show Wallace
both the bill for the demo damage and the payroll de-
duction authorization but Wallace refused to look at
them. Wallace then claimed that he had signed the $250
deductible memo on February 14 under duress and that
the documents were illegal. Weissbord testified that he
was shocked by this statement and asked Wallace why
he felt that he had signed under duress. Wallace replied
that Impellizzeri had told him that he had to sign the
memo or else he could not work for Respondent. Weiss-
bord then asked Impellizzeri "if he had said any such
thing and he replied in the negative." 46 Weissbord testi-
fied that he then offered Wallace the chance to work
without a demo but Wallace replied that he would rent a
car and charge Respondent. Weissbord then offered Wal-
lace the choice of paying for the damage in lump sum or
over a period of time but Wallace rejected these options.
Weissbord then stated, "I'm sorry but I'm going to have
to suspend you and you're going to have to stay sus-
pended until you agree to pay for the demo."
Between Wallace's version of what occurred on this
date and Impellizzeri's and Weissbord's version, I credit
Wallace's. Granted, at first blush, it is difficult to believe
that Weissbord would brazenly admit to building a case
against Wallace for engaging in union activities, the his-
tory of 8(aXl) threats and the timing of this incident
make acceptance of Wallace's testimony more palatable.
For Respondent, through Jaskowski, it has been found,
46 Note that I have already found that during the meeting of February
14 Impellizzeri told tile salesmen in reply to Salit's question that, unless
they signed the document, they could not work for Respondent. This ob-
viously included Wallace.
threatened to get rid of Wallace on more than one occa-
sion whether or not the Union got in. When the election
scheduled for May 12 was canceled, thus assuring Re-
spondent that the Union had been beaten, it is not diffi-
cult to believe that the very next day, May 13, Respond-
ent would take the action it had earlier threatened to
take. Since the earlier threats to discharge Wallace had
been made overtly, there is no reason to believe that in
the flush of victory, Respondent would be less blatant in
its declaration as to the reasons for the action it was
taking against Wallace. I therefore credit Wallace's de-
scription of the events surrounding his suspension on
May 13.
On May 14 Wallace went to the unemployment office
but the unemployment office refused to accept the fact
that he was unemployed because Wallace told them that
he had been suspended and this could have meant tempo-
rarily suspended. Wallace therefore called Weissbord4 7
to find out what he had meant by suspension. Weissbord
told Wallace that his suspension was indefinite or until
he signed the payroll deduction slip. On May 15, Wal-
lace received written notice from Weissbord of his in-
definite suspension due to his refusal to pay the demo
damage bill.
Respondent maintains that its treatment of Wallace
was no different than its treatment of its other employ-
ees, that its demand that Wallace pay for the damage to
his demo was no more than it demanded of other em-
ployees. I have found, however, that prior to April 23
when Wallace was billed, only two other employees had
been billed for damages to company cars and in both in-
stances it was for serious damage to those automobiles
which had resulted from collisions. Respondent, howev-
er, in order to show a pattern, offered into evidence a
number of instances occurring after April 23 wherein
employees were billed for damages sustained to their
demos and where moneys were deducted from their sala-
ries or commissions. These later examples of the applica-
tion of the Company's $250 deductible policy are of lim-
ited value as evidence simply because they occurred
after Wallace was billed and may well have been initiat-
ed to create the impression that a pattern existed where,
in fact, one had not, prior to Respondent's billing Wal-
lace. Nevertheless, the following examples of charges
against employees for damage to company cars were of-
fered by Respondent in support of its case and have been
analyzed.
1. Thomas Moffa testified that he was employed by
Respondent from August 1979 until December 1980. On
or about April 18 Impellizzeri advised Moffa that there
was a scratch on his demo and that he should bring it
into the body shop. Nothing was said at the time con-
cerning Moffa's liability for payment for repairs.
On April 18 a bill for damage to Moffa's demo was
drawn up, charged to Acme Motors for $75. Repairs
done that day were minimal-repair left door, replace
stripe, and paint damage with two stage paint. Moffa was
not asked to pay this bill when the work was done nor
was he shown the bill at that time.
4" Weissbord denied that this coniversation with Wallace ever took
place. I credit Wallace.
581
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 13, the same day that Wallace was suspended
for failing to pay for the damage to his demo, Moffa was
given an authorization form for the deduction from his
weekly paycheck for the amount of $75 and was asked
by Weissbord to sign it. It was the first time Moffa had
ever seen that document and the first time that he had
ever been told about the regulations regarding demo
damage. At Weissbord's bidding, Moffa signed the au-
thorization and immediately gave him a check for $75.
He was then given the bill dated April 18, which until
that time he had never seen.
About a week after Moffa gave Weissbord the $75
check, Moffa asked Impellizzeri whether the Company
intended to cash his check. Impellizzeri replied that he
did not know whether it would or not.48 The check
was, in fact, deposited to Respondent's account but not
until June 18, over a month after Moffa gave it to Weiss-
bord. The length of time that it took for Respondent to
cash the check, however, was explained away by Impel-
lizzeri who testified that Moffa told him that he was
short at the time and Impellizzeri offered to hold the
check for as long as he could before depositing it.4 9 He
then put the check in the file cabinet and forgot about it
until reminded of it by Weissbord.
Moffa was never requested to sign a $250 deductible
liability memorandum of the February 14 type until Oc-
tober 22, 1980. There is no explanation for this fact
except Weissbord's testimony that this is when he was
hired. All available evidence indicates Weissbord's testi-
mony on this point is in error.
2. John D'Imperio was not called to testify. Docu-
ments indicate, however, that D'Imperio was, like Moffa
and Wallace, required to sign a deduction authorization
for $100 on May 13, 1980. Body shop records indicate
that work done on D'Imperio's car involved straighten-
ing the right quarter panel, painting it, and replacing the
decal. I conclude from the description of repairs that
D'Imperio had been in an accident which caused the
damage to the company car. He paid the body shop bill
on May 13.
3. Gary Sinay was required to sign a memorandum
dated April 29 at the top of the document, in which he
acknowledged responsibility for an accident in which he
was involved and which caused in excess of $250
damage to the vehicle he was driving. By signing the
memorandum he agreed to have the $250 deducted from
his monthly commission check. There was no body shop
bill submitted with this but Weissbord testified that re-
pairs were in excess of $1,100. The date on which Sinay
was required to sign this memorandum is not indicated
on the document itself, unlike the memoranda signed by
Moffa and D'Imperio. Sinay was not called to testify but
Weissbord admitted that no salesmen had the $250 de-
ductible policy outlined in the February 14 memo en-
forced against them until May 13. I conclude therefore
that Sinay was required to sign the April 29 memoran-
dum on May 13.
4. Ernest Colentino signed a memorandum dated Octo-
ber 17 in which he agreed to waive a particular commis-
4' Impellizzeri denied making this statement. I credit Moffa.
4' Moffa testified that he could not recall this discussion but admitted
that it could possibly have happened.
sion in exchange for Respondent's agreement to release
him from any monetary obligation due to the loss of a
sunroof from his demo. The value of the sunroof is not
indicated.
5. Lynn Costello signed a memorandum dated January
16, 1981, in which he agreed to pay for damage to his
assigned truck out of his commissions. The attached esti-
mate, also dated January 16, was for $212.50 and listed
work on the right front fender and right door panel.
From the documentary evidence submitted by Re-
spondent offered to indicate that all employees were
treated equally with regard to charges for damage to
their demos, I find that until May 13 no one was charged
for such damage unless it was serious and extensive
damage due to accidents. I find further, from Moffa's tes-
timony and the documentary evidence, particularly the
length of time that passed between the date of the re-
pairs, April 18, and the date he was requested to pay for
the repairs May 13, that Respondent did not initially
intend to require Moffa to pay for these repairs. Since I
have found from the testimony of Wallace and Salit that
Wallace'e demo had not been damaged, except to the
extent that any vehicle undergoes wear through ordinary
usage, that Wallace was the only employee billed, and
billed excessively for maintenance costs and/or for work
that was never done. Finally, I conclude that Respond-
ent pressed Wallace for payment of the bill on May 13
because the union election had been canceled on May 12,
the Union was gone and it felt free at that point to carry
out its threats made earlier to rid itself of Wallace be-
cause of his activity on behalf of the Union. In connec-
tion with this date, I find that Respondent's decision to
bill Moffa and D'Imperio on that date was not mere co-
incidence but an attempt to disguise the disparate treat-
ment which it was meting out to Wallace by making it
appear that he was just one out of several employees
who were regularly billed for damage to their demos.
Clearly all subsequent billings of employees for damages
were justified 50 and differed from Wallace's case because
there were actual damages involved due to accidents not
to ordinary wear, and if Wallace had been involved in an
accident with serious damage to his vehicle for which he
refused to pay, I would reach a different conclusion than
I do herein.
In short, with regard to Wallace's suspension, I find
that the evidence clearly warrants the conclusion that it
was motivated by considerations violative of the Act.
Thus, the evidence indicates that Wallace was a superior
salesman whose talents were particularly valued by Re-
spondent; these talents were so valued that Respondent
hired him back at more favorable terms than any other
of its salesmen enjoyed including the free use of a demo
with maintenance and upkeep provided; Wallace justified
Respondent's faith in him by quickly becoming their top
salesman; Wallace then contacted the Union and became
the most active employee soliciting on its behalf; Re-
spondent rejected the Union's demand and revealed its
union animus by its interrogation and threats against
those employees responsible for the advent of the Union;
s0 The billing for the loss of the sunroof was likewise clearly justified.
582
ACME DATSUN
Respondent quickly learned of Wallace's involvement"'
and immediately took action against him in the form of
presenting him with a bill of close to $200 for damage to
his demo which damage was either nonexistent or ex-
tremely negligable and due solely to ordinary wear;
though Respondent did not immediately demand pay-
ment of the bill since it was in the middle of the Union's
campaign, it continued its campaign of interrogation and
threats, admitting, through Jaskowski, that it was aware
that Wallace was one of the leading union proponents
and advising him that eventually he would be dis-
charged, the exact time being dependent on the success
or failure of the Union's organizational drive; when the
Union withdrew and the May 12 election was canceled,
Respondent the very next day demanded that Wallace
pay the bill for the alleged demo damage; and when he
refused, it suspended him. I thus find the suspension dis-
criminatorily motivated and a clear violation of Section
8(aX3) and (1). Respondent's argument that Wallace
could have kept working by simply paying the bill is
without merit for it is quite apparent that if Respondent
could frame Wallace as it did the first time, it was cer-
tainly in a position to do so a second and third time, thus
making his position untenable.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occur-
ring in connection with its operation described above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
"I Wallace's overt solicitation of Respondent's employees permits a
presumption of company knowledge of his activities under the circum-
stances present in this cae. Wiese Pow Welding Ca. Inc, 123 NLRB 616
(1959).
CONCLUSIONS OF LAW
I. Respondent is an employer engaged. in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating its employees concerning their ac-
tivities on behalf of the Union; threatening employees
with discharge for engaging in such activities; creating
the impression of surveillance of such activities; inform-
ing employees that it would be futile for them to select
the Union as their bargaining representative and/or to
seek to use National Labor Relations Board processes or
to seek its protection; and by otherwise interfering with
its employees' Section 7 rights, Respondent has violated
Section 8(a)(1) of the Act.
4. By suspending employee Lloyd Wallace and there-
after failing and refusing to reinstate him because of his
union activities, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)3) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take appropriate and affirma-
tive action designed to effectuate the policies of the Act.
In particular, as I have found that employee Lloyd Wal-
lace was discriminatorily suspended, I shall recommend
that Respondent be required to offer him full and imme-
diate reinstatement, with backpay and interest thereon to
be computed in the manner prescribed in F W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).52
[Recommended Order omitted from publication.]
s2 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
583