Action Auto Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1990

298 N.L.R.B. 875 (N.L.R.B. 1990)

ACTION AUTO STORES
Action Auto Stores , Inc. and Local 876, United
Food and Commercial Workers International
Union, AFL-CIO, CLC. Cases 7-CA-26529, 7-
CA-26559, 7-CA-26629, 7-CA-26999, and 7-
RC-18289
June 26, 1990
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On February 1, 1989, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The Respondent further filed a motion to reopen
the record for the purpose of introducing addition-
al evidence and a motion to supplement the Re-
spondent's brief in support of its motion. The Gen-
eral Counsel filed an answering brief and a re-
sponse to the motion to reopen the record.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and ' to adopt the recommended
Order.
In its motion the Respondent urges that the
record be reopened to present evidence regarding
turnover among bargaining unit employees and
management officials that it asserts renders a bar-
' The Respondent has excepted to some of the judge's credibility find-
ings The Poard's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In sec. V,B, of the judge's decision, the words "objective motivations"
in the last sentence of the quotation from NLRB v. Gissel Packing Co,
395 U.S 575 (1969), should read "subjective motivations." In sec VI,A,
at subsea B, l,b of the Respondent's "Solicitation by Employees" memo-
randum, the word "remove" should be inserted between the words
"work" and "any" In sec VI,D,2, the correct date in the second sen-
tence is July 1986 In sec VI,J,1, the correct date in the penultimate sen-
tence is December 18, 1986 These inadvertent errors do not affect the
results of our decision
2 The Respondent has excepted to the judge's conclusion that it violat-
ed Sec 8(a)(1) of the Act by restricting the union activities of its employ-
ees through Supervisor Mulders' broad instruction to employee Eaton
that he was not to discuss the Union with employees at the Respondent's
Owosso facility; the Respondent argues that such a violation was not spe-
cifically alleged in the complaint We find this exception without merit It
is well established that the Board may find a violation not alleged in the
complaint if the matter is related to other violations alleged in the com-
plaint, is fully and fairly litigated, and no prejudice to the respondent has
been alleged or established Baytown Sun, 255 NLRB 154 fn 1 (1981). In
the instant case, the complaint contains allegations that the Respondent
unlawfully; interfered with employee Eaton's Sec 7 rights, several of
which involve Mulders, and the Respondent had the opportunity to fully
litigate the issue, We also note that the Respondent has not shown that it
was prejudiced by the absence of a specific allegation of this incident in
the complaint.
875
gaining order unnecessary.3 We deny the Respond-
ent's motion to reopen the record because the evi-
dence it seeks to introduce on turnover in the bar-
gaining unit and turnover in management would
not require a different result. See Section
102.48(d)(1) of the Board's Rules and Regulations.
In determining whether a bargaining order is ap-
propriate, the Board has specifically held that "the
validity of a bargaining order depends on an eval-
uation of the situation as of the time the unfair
labor practices were committed." Highland Plastics,
256 NLRB 146, 147 (1981). Thus, the evidence
concerning employee turnover that the Respondent
offers is an irrelevant consideration when assessing
the propriety of issuing a Gissel bargaining order.
Salvation Army Residence, 293 NLRB (1989). Even
assuming the relevance and accuracy of the evi-
dence of turnover that the Respondent seeks to in-
troduce, however, we conclude that this evidence
would not affect the validity of issuing a bargaining
order here for the following reasons. First, we note
that a substantial number of the employees affected
by the Respondent's unlawful conduct still work
for the Respondent. Second, with respect to the
contention regarding management turnover, the
majority of the Respondent's management is still in
place and those remaining were responsible for a
substantial number of the Respondent's unfair labor
practices. Additionally, we emphasize that the vio-
lations were numerous and pervasive in nature and
that many of them were "hallmark" violations, in-
cluding threats of discharge and numerous threats
3 In its motion to supplement its brief in support of its motion, the Re-
spondent seeks to introduce evidence that as of July, 11, 1989, there had
been a 75-percent turnover of employees in the bargaining unit and that 5
management officials who had committed a total of 24 violations no
longer worked for the Respondent The Respondent also argues that in
light of our decision in Impact Industries, 293 NLRB 794 (1989), we
should consider such evidence in determining whether a Gissel bargaining
order is warranted here. We disagree. In Impact Industries, supra, we
adopted as the law of the case the Seventh Circuit's direction on remand
that we consider evidence of employee and management turnover in de-
ciding whether a Gissel bargaining order should issue Applying that
court's direction, we determined that a bargaining order was not warrant-
ed In that case more than 7 years had elapsed between the election and
the issuance of our original decision. During that time there had been a
90-percent turnover among employees and the bargaining unit had in-
creased from about 135 employees to about 263 employees Further, the
respondent was under new management (the co-owners had died and ac-
cordingly the company was being managed by trustees) and only two
minor officials, each responsible for only one violation, iespecttvely, re-
mained from the management that had been in place when the violations
took place Pursuant to the court's statements on remand Ihat evidence of
employee and management turnover was "particularly relevant" to our
determination, that the respondent "`had seemingly present[ed] a strong
case ' in favor of a second election," and that "the prospect of a fair elec-
tion [was] 'a likely event,"' we concluded that the impact of the respond-
ent's unfair labor practices had been mitigated to the extent that their ef-
fects could be erased through traditional remedies and that a Gissel bar-
gaining order was not warranted We find that the circumstances of the
present case, as fully set out below, are readily distinguishable from those
in Impact Industries, supra, and, accordingly, even assuming their rel-
evance, would justify a different result
298 NLRB No. 135
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of plant closure, which are "`among the most fla-
grant' of unfair labor practices." See Indiana Cal-
Pro, Inc. v. NLRB, 863 F.2d 1292, 1301-1302 (6th
Cir. 1988), enfg. 287 NLRB 796 (1987). In this
regard, the Respondent also violated Section
8(a)(3) of the Act by unlawfully discharging one
bargaining unit member. Such 8(a)(1) and (3) viola-
tions threaten the very livelihood of employees and
are likely to have a lasting impact which is not
easily erased by the mere passage of time. Addi-
tionally, the Respondent does not contend that the
changes in the composition of the unit are not a
result of the widespread and serious unlawful con-
duct. See F & R Meat Co., 296 NLRB 759 (1989),
and Bridgeway Oldsmobile, 281 NLRB 1246 (1986).
Finally, while the Respondent argues that the
events at issue here are now "stale," we observe
that, even were that assessment an accurate one, to
permit the Respondent to reopen the already exten-
sive record at this late date would only further
protract an already lengthy proceeding, permit ad-
ditional employee turnover, and "would put a pre-
mium upon continued litigation by [the] employer."
Automated Business Systems v. NLRB, 497 F.2d
262, 275 fn. 12 (6th Cir. 1974), remanding 205
NLRB 532 (1973).4
For the above-stated reasons, we agree with the
judge that the possibility of erasing the effects of
the Respondent's extensive and serious violations is
slight and the holding of a fair election unlikely.
Therefore, we conclude that a Gissel bargaining
order is appropriate.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Action Auto
Stores, Inc., Flint, Saginaw, Bay City, and Mid-
land, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
4 Since this case arises in the Sixth Circuit, we note that considerably
less time has elapsed between the election and the date of this decision
than was the case in Camvac International, 288 NLRB 816 ( 1988), re-
manded Nos 88-5573 and 88-5625 (6th Cir June 20, 1989) (unpublished),
on remand 297 NLRB 853 (1990)
Linda Rabin. Esq. and Michael R. Blum, Esq., for the
General Counsel.
Stewart J. Katz and Bruce Bagdady, Esqs., for the Re-
spondent.
Mary Ellen Gurewitz, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This
consolidated proceeding was litigated before me at
Burton, Flint, and Saginaw, Michigan, on 22 days during
the period September 14, 1987, through March 3, 1988,
pursuant to unfair labor practice charges and objections
to the conduct of an election filed by Local 876, United
Food and Commercial Workers International Union,
AFL-CIO, CLC (Union), and a consolidated complaint'
as amended2 and notice of hearing issued by the Acting
Regional Director for Region 7 of the National Labor
Relations Board on July 14, 1987. It is alleged that
Action Auto Stores, Inc. (Respondent)3 violated Section
8(a)(3) and (1) of the National Labor Relations Act (the
Act) by discharging John Hafner, reprimanding and dis-
charging Mark Henry, and reducing the work hours of
Pat Hozeska , assigning him more onerous tasks, and dis-
charging him. It is further alleged that Respondent com-
mitted violations of Section 8(a)(1) of the Act. The ob-
jections to election assert that Respondent interfered
with the conduct of the election, thus making a new
election necessary. The General Counsel alleges, howev-
er, that Respondent's unfair labor practices are so serious
that an order requiring it to recognize and bargain with
the Union is warranted. Respondent denies the unfair
labor practice and objections to election allegations and
that a bargaining order is called for.
After considering the record,4 the demeanor of the
witnesses testifying before me, and the able briefs filed
by the parties, I make the following findings and conclu-
sions.
I. JURISDICTION
The complaint alleges, Respondent admits, and I find
that Respondent is a Michigan corporation with its prin-
cipal office and place of business at G-4273 Corunna
Road, Flint, Michigan. Respondent maintains other
places of business throughout the State of Michigan, in-
cluding in the cities of Saginaw, Bay City, Midland,
Shields, and Essexville. Respondent is, and has been at
all times material, engaged in the retail sale and distribu-
tion of automobile parts and related products. During the
year ending December 31, 1986, a representative period,
in the course and conduct of its retail business oper-
ations, Respondent received gross revenues in excess of
$500,000, and purchased and caused to be transported
and delivered at its Flint, Saginaw, Bay City, and Mid-
1 The charge in Case 7-CA-26325, originally a part of this proceeding,
was withdrawn and that case is not before me
2 In addition to other amendments of the complaint permitted at hear-
ing, the General Counsel moved to amend par. 9(v) of the complaint to
allege a threat to close stores made by Mike DeShaw in December 1986
Respondent objected to this amendment At an earlier stage of the hear-
ing the General Counsel had adduced the evidence relied on to support
this allegation , but had proffered it as background to other allegations in
par 9(v). Sec 102 17 of the Board 's Rules And Regulations provides, in
pertinent part "Any .. complaint may be amended upon such terms as
may be deemed just . at the hearing and until the case has been trans-
ferred to the Board upon motion, by the administrative law judge
designated to conduct the hearing . " Inasmuch as the motion to
amend was made on the 12th of 22 hearing days and Respondent had
ample time to litigate the subject matter of the proposed amendment
which was then in evidence as background , Respondent 's objection is
overruled and the amendment is permitted
s Respondent 's name appears as amended at hearing.
4 Respondent 's posttrial motion to reopen the record to introduce evi-
dence of employee turnover was denied
ACTION AUTO STORES 877
land, Michigan places of business , automobile parts and
other goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000
were transported and delivered to its places of business
in the State of Michigan directly from points located out-
side the State of Michigan . Respondent is now and has
been at all times material an employer engaged in com-
merce within the meaning of Section 2(2),(6), and (7) of
the Act.
II. LABOR ORGANIZATION
The Union is and has been at all times material a labor
organization within the meaning of Section 2(5) of the
Act.
III. SUPERVISORS AND AGENTS
I find, as the parties stipulated , that the following
named individuals occupied the positions set opposite
their names at times material to this proceeding and have
been and are now supervisors and agents of Respondent
within the meaning of the Act:
Roger Hill
Richard Sabo
James Sabo
Michael E. King
David Scigliano
Gerald Zynda
James Corbin
Service Director
President
Corporate Officer
Personnel Director
Vice President, Store
Operations
District Manager
District Manager
Cliff Jobe
Daniel Freeburg
Sarah Bryon
Mark Nuffer
Dennis Wilks
Bob Miller
Tom Kalinowski
James Jezak
Bill Johnson
Don Lawson
Dave Wujkowski
Harold Muldor
Mike DeShaw
Ron Foster
Kurt Arnold
Fred Lydon
Kris Keinath
Rick Kimmery
Store Manager
Store Manager
Assistant Store Manager
Store Manager
Store Manager
Store Manager
Store Manager
Store Manager
Store Manager
Store Manager
Store Manager
Supervisor-Construction
and Maintenance
Assistant Store Manager
Assistant Store Manager
Assistant Store Manager
Assistant Store Manager
Assistant Store Manager
Assistant Manager-Service
The parties further stipulate , and I find, that Frank Bar-
resi, management consultant, was an agent of Respond-
ent at times material to the matters at issue in this case.
IV. LITIGATION HISTORY
Local 40, United Food and Commercial Workers
International Union , AFL-CIO , CLC, which was
merged into Local 876 in the summer of 1982, was certi-
fied as the exclusive collective-bargaining representative
of Respondent 's store and warehouse and clerical em-
ployees at its Flint, Burton, and Fenton , Michigan loca-
tions (the Flint stores) in January 1982. Respondent con-
tested the disposition of determinative challenged ballots
and refused to recognize and bargain with the Union. On
June 24, 1982, the Board issued a Decision and Order
granting General Counsel 's Motion for Summary Judg-
ment and ordering Respondent to bargain with the certi-
fied union.-5 The United States Court of Appeals for the
Sixth Circuit agreed with Respondent and denied en-
forcement of the Board 's Order on September 30, 1983.6
The Board petitioned for and was granted certiorari in
1984 . Subsequently , on February 19, 1985, the United
States Supreme Court - reversed the Sixth Circuit.7 Ac-
cordingly , the Sixth Circuit vacated its earlier judgment
on May 13, 1986, and granted enforcement of the
Board 's Order .8 In the meantime, Local 876 filed a
charge with the Board on March 20, 1986, alleging a re-
fusal by Respondent to furnish information to the Union.
Respondent challenged the status of Local 876 as a le-
gitimate successor to the certified Local 40, and contend-
ed the units for which certification had issued were no
longer appropriate due to an expanded work force, oper-
ational changes and extensive turnover . These issues
were tried before Judge Harmatz on November 7, 1986.
His decision thereon issued February 10, 1987, and was
adopted by the Board on June 16, 1987, finding Re-
spondent's defenses without merit and that the refusal to
furnish information relevant and necessary to the Union's
collective-bargaining duty violated Section 8(a)(5) and
(1) of the Act. This Order was enforced by the United
States Court of Appeals for the Sixth Circuit on August
2, 1988.9
General Counsel seems to imply that this litigation his-
tory involving the Flint stores should somehow influence
my approach to the case before me involving the Sagi-
naw, Bay City, Midland , Shields, and Essexville stores
(the Saginaw stores). There is nothing in this history to
warrant any inference adverse to Respondent . It is quite
probable however that Respondent , in view of its ex-
tended litigation with the Union at Flint, was vigilant for
any, indication of union organizing among its employees
at Saginaw , less than 40 miles from Flint. For ease of ref-
erence the Saginaw stores are listed below by their Re-
spondent assigned number and address.
14408 South Michigan , Saginaw
162303 Hess, Saginaw
193285 Bay Road , Saginaw
202740 East Holland , Saginaw
35710 North Euclid, Bay City
37112 Ashman Street, Midland
407492 Gratiot, Shields
435605 State, Saginaw
451504 Center , Essexville
Action Automotive , 262 NLRB 423 (1982)
s Action Automotive v NLRB, 717 F.2d 1033 (6th Cir. 1983)
NLRB v. Action Automotive , 469 U.S. 490 (1986).
s Action Automotive, Inc. v. NLRB, 794 F.2d 213 (6th Cir. 1986)
9 Action Automotive, 284 NLRB 251 (1987), enfd 853 F 2d 433 (6th Cir
1988)
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
V. GENERAL BACKGROUND AND CONTEXT' 0
A. Employee Activity and Company Knowledge
Several mechanics from Respondent's Flint stores met
at the home of mechanic Robert Rose in September 1986
for the purpose of identifying and discussing employ-
ment-related problems. As Rose puts it, a bunch of guys
gathered around, talked about problems they had at
Action Auto, and made a list of those problems. There
was no discussion of a union.
Prior to this meeting Rose used the telephone at Store
8 to invite other mechanics to attend. He concluded the
phone calls were overheard because he heard Tim Far-
rell, store manager, tell Cliff Jobe, another store manag-
er, "They're at it again Cliff," and Jobe later asked Rose
if he or other management persons could attend or were
invited to the meeting. After conferring with other em-
ployees at Store 8, Rose told Jobe the employees would
feel better if members of management did not attend. I
do not agree with General Counsel that Farrell's ambigu-
ous comment and Jobe's request necessarily connote
management recognition of the meeting as a first step
toward unionization, or may be given any weight as evi-
dence of Respondent's knowledge of employee union ac-
tivity. I' Rose testified that he, 2 or 3 days after the
meeting, was interviewed by Respondent's vice presi-
dent, Scigliano, and Roger Hill, district manager, regard-
ing the items on the list. Scigliano places the date as Oc-
tober 1, 1986, when the list was given him at Store 8 by
mechanic Bob Kern, who is no longer employed and did
not testify. Scigliano testified that Kern reviewed each
item on the list with him, said a group of mechanics had
compiled it, and gave it-to Scigliano. Scigliano's certain
recollection of the date is credited, and I further con-
clude from Rose's 2- or 3-day estimate that the mechan-
ics' meeting took place the last week of September.
During the meeting with Rose, Scigliano asked how
many were at the mechanics' meeting and what kind of
problems did they have. They then discussed some of the
items on the list. Rose had not as yet received his Blue
Cross identification, and Scigliano called Respondent's
office and verified for Rose that he was covered by Blue
Cross insurance. Scigliano did not mention a union nor
did Rose.
Rose recalls that it was not until a later meeting at his
home that the subject of unions arose. Mechanic Eric
Hannula attended this meeting, which was probably in
early October. During the meeting, Hannula secured the
10 The facts found in this decision are based on the credited testimony
of witnesses, the exhibits, and consideration of logical consistency and in-
herent probability Although I have not, in the course of this decision,
averted to all of the evidence, it has been weighed and considered, and to
the extent that testimony or other evidence not mentioned might appear
to contradict the findings of fact it has not been disregarded but has been
rejected as incredible, lacking in probative worth, surplusage, or irrele-
vant In those instances where I may not have specifically detailed who I
have credited, it is clear from the narrative who has been credited
11 The testimony of James Reigler that employee union organizing was
afoot in Bay City (Saginaw area) in August 1986 and was discussed at a
manager's meeting in that month is contrary to the great weight of the
evidence that no such activity was going on in Saginaw at that time
Moreover, Reigler was clearly uncertain on the month of this meeting.
His claim of employer discussion of union organizing at a Saginaw store
in August 1986 is not credited
agreement of the others in attendance to contact the
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW). The following week,
Hannula contacted a UAW organizer, and thereafter vis-
ited stores in the Flint area on the succeeding two Sun-
days. On the second Sunday he was ordered out of a
store by the manager who said it was under the orders of
Jim Sabo. This conduct of the manager is not alleged as
and I do not find is an unfair labor practice. Hannula
was discharged the following week on October 23, 1986.
On October 28, he filed a charge with the Board alleging
he was discharged for "Union activities." The charge
was received by Respondent on October 29,112 and put
Respondent on notice that there was some current union
activity. Respondent contends it gained no knowledge of
union activities until November 17 or 18, 1986, when it
was aware Or UAW sympathy, but Hannula's charge
persuades me Respondent either knew or suspected there
was such activity when it received Hannula's charge on
October 29, 1986, even though it may not then have
known which union was involved. A couple of weeks
after Hannula filed his charge he discovered the UFCW
claimed to represent the Flint employees. Thereafter he
passed out UFCW authorization cards to both Flint and
Saginaw employees. He passed the first one to Kevin
Taylor, who signed it on December 19, 1986, and testi-
fied there was no distribution of UFCW cards in the
Saginaw area prior to that time. This comports with
Union Representative Charrette's testimony the UFCW
drive began in December 1986. Respondent concedes it
became aware of UFCW activity in the Saginaw district
on or about December 18, 1986.
The Union filed a petition with the Board on February
13, 1987, in Case 7-RC-18289 seeking a representation
election among certain of Respondent's employees. On
March 19, 1987, the Regional Director approved a Stipu-
lated Election Agreement, and a secret ballot election
was conducted on April 9, 1987, among the employees in
the unit hereinafter found appropriate. The Union lost
the election and timely filed objections to the conduct of
the election.
B. The Bargaining Unit and Union Majority Status
The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time store employ-
ees, including cashiers, parts clerks, mechanics, gas
attendants, and maintenance employees employed
by Respondent at its facilities located at 408 South
Michigan, Saginaw, Michigan; 2303 Hess, Saginaw,
Michigan; 3285 Bay, Saginaw, Michigan; 2740 East
Holland, Saginaw, Michigan; 710 North Euclid,
Bay City, Michigan; 7492 Gratiot, Shields, Michi-
gan; 5605 State, Saginaw, Michigan; 1504 Center,
Essexville, Michigan; and 112 Ashman Street, Mid-
land, Michigan; BUT EXCLUDING office clerical
employees, store managers, assistant store managers,
12 The charge filed by Hannula was withdrawn and is not before me
ACTION AUTO STORES
assistant store managers in training, assistant manag-
ers-service, service writers, guards and supervisors
as defined in the Act.
The parties stipulated and I find that there were 72
employees including alleged discriminatee John Hafner
in this unit on or about February 18, 1987. General
Counsel proffered 38 signed authorization cards dated on
or before February 18, 1987, in support of her claim of a
union majority. The card utilized has the Union's name
and telephone number at the top. The next item reads as
follows:
REPRESENTATION AUTHORIZATION
I hereby designate and authorize the United Food &
Commercial Workers Union, Local 876, to repre-
sent me for the above mentioned purpose.
The remainder of the card consists of spaces for the date
of signing, the signers printed name, signature, social se-
curity number, phone, address, employer, date of hire,
job title, department, pay rate, days off, shift, whether
full- or part-time employee, and whether the signers
would participate in an organizing committee.
In addition to the card of John Hafner which is valid
because I have elsewhere in this decision found his dis-
charge in violation of Section 8(a)(3) and (1) of the Act,
and he therefore, as a matter of law, remained an em-
ployee in the unit on February 18, 1987,13 Respondent
challenges the cards of Darryl Munger and Scott Bisson-
ette and nine others. Helen Janiskee, a document examin-
er called and qualified as an extra witness by General
Counsel, testified that her examination of the cards con-
vinced her that the signatures on the cards bearing their
names were by the same persons who signed employer
documents known to bear their signatures. Respondent's
qualified expert, David Beech, testified he was unable to
conclude from an examination of the cards and samples
of writing known to be those of Munger and Bissonette
whether the card signatures were or were not those of
Munger and Bissonette. This amounts to an "I don't
know" verdict and does not squarely rebut Janiskee's tes-
timony the card signatures were those of Munger and
Bissonette. Nevertheless, as the trier of fact, I have, in
accord with Fed. R. Evid. 901(b)(3),i4 myself compared
the writing on the cards in question with the same au-
thenticated specimens utilized by the expert witnesses. i s
A comparison of the entries on the card in addition to
the signature, especially the printed name and social se-
curity number on Munger's September 2, 1986 employ-
ment application, with those on the authorization card in
question persuades me the same person wrote both. This
is clearly evident in the case of the social security num-
13 Martin-Brower Co, 261 NLRB 752, 759 (1982).
34 See Ken's IGA, 259 NLRB 305 fn 2 (1981).
15 General Counsel proffered Munger as a rebuttal witness to authenti-
cate his card I rejected his testimony on the ground it was not proper
rebuttal, but permitted General Counsel to make an offer of proof by
question and answer On further reflection, I remain persuaded that my
ruling of improper rebuttal was correct because Beech's inability to reach
a definite conclusion does not rebut Janiskee's positive conclusion that
Munger did sign the card bearing his name . In short, Beech offered noth-
ing to be rebutted.
879
hers which are printed in the same unique style on each
document. One might almost be a carbon copy of the
other. Similarly there can be little doubt that the printed
names came from the same hand. On the basis of my
own observations and the essentially unrebutted testimo-
ny of Janiskee, I conclude Darryl Munger did indeed
sign the card in evidence and it is a valid authorization
of the Union as his collective-bargaining representative.
As with Munger's card, so with Bissonette's. Janiskee
says it is his signature on the card. Beech cannot say
whether it is or not. After comparing all the entries on
the card with the known specimens of Bissonette's writ-
ing and printing, I conclude he in fact signed the card
and it is a valid authorization of the Union as his repre-
sentative. Here again the printing of numbers,and letters
on the card is like that on documents from the Respond-
ent's record pertaining to Bissonette.
An obvious example is the printing of his address on
the card, particularly the city and State, which compare
closely with his address on his W-4 form and the em-
ployee information sheet completed by him on Novem-
ber 22, 1985. Moreover, I agree with Janiskee that the
signature on the card is sufficiently identical to those
known to be Bissonette's that a conclusion he signed the
card is warranted.
Respondent challenges the validity of cards signed by
John Moore, William Musolf, David Arnot, Denise
Tigner, Velinda Pulliam, Robert Blake, Ken Erickson,
Robert Clark, and Rick Miller on the ground they were
expressly or impliedly told the cards could only be used
for an election. The controlling principles have been set
forth by the Supreme Court as follows:
[W]e think it sufficient to point out that employ-
ees should be bound by the clear language of -what
they sign unless that language is deliberately and
clearly canceled by a union adherent with words
calculated to direct the signer to disregard and
forget the language above his signature. There is
nothing inconsistent in handing an employee a card
that say the signer authorizes the union to represent
him and then telling him that the card will probably
be used first to get an election. . . . We cannot agree
.. . that employees as a rule are too unsophisticat-
ed to be bound by what they sign unless expressly
told that their act of signing represents something
else.
We agree, however, with the Board's own warn-
ings in Levi Strauss & Co., [172 NLRB 732 fn. 7]
(1968), that in hearing testimony concerning a card
challenge, trial examiners should not neglect their
obligation to ensure employees free choice by a too
easy mechanical application of the Cumberland rule.
We also accept the observation that employees are
more likely than not, many months after a card
drive and in response to questions by company
counsel, to give testimony damaging to the union,
particularly where company officials have previous-
ly threatened reprisals for union activity' in violation
of Section 8(a)(1). We therefore reject any rule that
requires a probe of an employee's objective motiva-
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions as involving an endless and unreliable in-
quiry. 16
The authorization cards are unambiguous designations
of the Union as the signers' collective-bargaining repre-
sentative. That being so, the question is whether the card
language was deliberately and clearly canceled by the
card solicitor in each case by the use of words reason-
ably calculated to direct the signer to disregard and
forget the card language.
Several of the employees whose cards are challenged
were given a union booklet with an attached authoriza-
tion card within. Respondent advances the following
contention:
An overall reading of the Charging Union's
booklet entitled The Basics About Organizing .. .
demonstrates that employees are, in reality, being
led to conclude that the card is for the sole purpose
of an election. Thus, the top half of the union au-
thorization card . . . contained in the booklet states:
When a majority of employees sign authoriza-
tion cards they are in a very strong position. A
fair-minded employer may then legally agree to a
card check.
This can be done after an impartial individual,
chosen by the union and the management, veri-
fies that a majority have authorized the union to
represent them. The employer may then recog-
nize the union without the necessity of a govern-
ment conducted election.
Thus the action of a majority can make it pos-
sible to secure recognition of the union so that
immediate negotiations will follow to obtain a
union agreement. If the employer refuses to agree
to a card check, the National Labor Relations
Board regulations require signatures from at least
30% of the employees before a secret ballot election
can be held. [Emphasis added.]
Further, under the title Authorization Cards the following
is set forth:
Union Authorization Cards are used to help
YOU and your CO-WORKERS organize into a
UNION.
At least 30% of your co-workers must sign Au-
thorization Cards for the GOVERNMENT to
schedule an ELECTION.
Signing the CONFIDENTIAL CARD tells the
NLRB that you 're interested in UNITING as a
GROUP.
The NLRB then conducts a HEARING to find
out if the bargaining unit is PROPER.
If the government decides in YOUR Favor a
SECRET BALLOT ELECTION is held by the
NLRB. [Emphasis added.]
Not only is the entire section of the booklet devoted
to NLRB representation procedure, but the words "elec-
16 NLRB v. Gissel Packing Co, 395 U S 575, 606-608 (1969). Emphasis
added
tion" or "secret ballot election" are set out in bold caps
to obviously catch the eye of the reader.
The foregoing extracts from the booklet are accurate,
speak for themselves, refer to alternative use of authori-
zation cards, and do not directly or indirectly advise a
card signer to disregard and/or forget the straightfor-
ward card language to which he or she has subscribed.
John Moore credibly testified that he was given an au-
thorization card by John Hafner who asked if he would
like to join the Union and, receiving an affirmative re-
sponse from Moore, told him it was for job security and
to let them know Moore was for the Union. Hafner did
not say the card could be used to get into the Company
without an election, nor did he say he wanted the card
signed so the employees could have an election. Moore
filled out portions of the card and signed it. He did not
read the booklet before he signed the card. Moore was
clearly not told the cards would be used only for an
election, nor was he told anything contrary to the card
language. He does not say he did not read the card, and
I am persuaded that he probably read the card before
signing it because he filled out portions of the card other
than his printed name and his signature and it is extreme-
ly unlikely that the card language escaped his notice. In-
asmuch as Moore was told nothing that would reason-
ably convey the idea that his act of signing represented
something other than the card clearly states, his signed
authorization card is a valid designation of the Union as
his collective-bargaining representative.
Robert Blake was given the Union's booklet containing
an authorization card by employee Kelvin Taylor. Blake
did not read the booklet or the card before he filled out
and signed the card because he was too busy at work.
Taylor told him the card was "to vote for the union
election, if they got the union . . . it would be better
hours, better wages, better benefits."
Ricky Miller signed an authorization card on January
28, 1987, at a union meeting. He credibly testified that
when he walked into the meeting place he was handed
the card by an unnamed union representative whereupon
he signed it. Neither said anything. Later, after he had
signed the card, he asked the same man during the meet-
ing what the cards were for. The union agent responded
the cards were for the upcoming election and they
needed a certain number to go to an election. Miller
filled the card out and signed it. I therefore have some
difficulty in concluding that, as he says, he did not read
it before he signed. It is more likely, I believe, that he
did read the card because he would have to know what
was required in the spaces he completed in order to fill
them in. Moreover, he indicated on the card that he
would participate in an organizing committee, which evi-
dences an interest in union representation
With respect to the cards of William Musoff, David
Arnot, Denise Tigner, Velmda Pulliam, Ken Erickson,
and Robert Clark. Respondent first avers that all of them
testified they read their authorization card and/or the
booklet from which they were taken, and that the book-
let indicates the sole purpose of the cards is to obtain an
election, I have already found the booklet does not so in-
dicate.
ACTION AUTO STORES
Ken Erickson read the card before he signed it, and
later read the booklet. Arnol solicited him to sign the
card, and said it was to see if "we" had enough people
interested in the Union to hold an election.
Robert Clark credibly testified that he signed a union
card on January 14, 1987, after employee Calvin Eaton
gave him the card in the booklet and told him to take it,
sign it, and send it in and they would be counted to see
if the Union had enough support for a union election.
Clark read the card and everything in the booklet before
he signed the card.
Melinda Pulliam testified she signed a card on Decem-
ber 19, 1986, after she read it. The card was given to her
by Robert Blake. She asserts that Blake just said they
"needed so many cards in order to get an election."
Blake says he received cards from employee Kelvin
Taylor who told him the cards would be used to vote
for or against the Union and "if they come in its going to
be better hours, better benefits, better wages." Blake first
explained that when he gave cards to people, including
Pulliam, he told them the cards were going to be used
"Basically to vote for the union." He later modified this
testimony to, "I told them more or less what Kelvin
Taylor told me that it was to, vote for the union if you
was in favor of it or you vote no against it or whatever."
Kelvin Taylor testified that he told Blake and others to
whom he distributed authorization cards that the cards
were needed to show support for the Union so a petition
for an election could be filed.
According to William Musolf, he filled out and signed
an authorization card on December 18, 1986, at a union
organizing meeting. It was contained in the union book-
let heretofore referred to and which he read.
David Arnot recalls signing an authorization card at the
December 18, 1986 union meeting, after reading the
"Basics about Organizing" booklet with which the card
came to him.
Denise Tigner signed an authorization card at the same
meeting after reading a copy of the same booklet, and
was told her card would be used to get an election at
Action Auto.
The Supreme Court noted in Gissel, as quoted above,
that employees are likely, in response to questions from
company counsel and months after a card drive, to give
testimony damaging to the union, particularly where
company representatives have, as they have here, threat-
ened reprisals for union activity. The Court rejected any
rule requiring a probe of the signers' subjective motiva-
tions. Further, the Board has recently stated in a case''
involving unambiguous single-purpose cards like those in
the instant case that:
Such cards are adequate proof of employee union
sentiment. We do not agree with the Respondent's
contention that representations made by union so-
licitors to some employees when they signed the
cards invalidate them. In our view, statements to
the effect that signatures are needed to bring in a
union, have a meeting, get information, or get an
election are not inconsistent with the stated repre-
17 Montgomery Ward & Co., 288 NLRB 126 (1988)
881
sentative purpose of the card, and do not negate the
written language of the card or amount to a direc-
tion to the signer to disregard the written language.
They do not inform the signer that the "only" pur-
pose of the card is the purpose stated by the solici-
tor, not the purpose stated on the card. Consequent-
ly, cards signed on these representations may be
counted toward the Union's majority status.
I am persuaded that these teachings of the Supreme
Court and the Board require rejection of Respondent's
protests that the cards of John Moore, William Musolf,
David Arnot, Denise Tigner, Velmda Pulliam, Robert
Blake, Ken Erickson, Robert Clark, and Rick Miller are
invalid. Accordingly, I find the cards signed by these
persons, as well as those of Munger, Bissonette, and
Hafner, are valid designations of the Union as their col-
lective-bargaining representative and 38 of the 72 em-
ployees on the unit on February 18, 1987, had by that
date executed valid authorization cards in favor of the
Union. ' a
VI. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint allegations of unlawful conduct number
about 53, depending on how one counts. Some are valid.
Some are not. Each allegation will be dealt with as the
evidence relating thereto requires.
A. The No-Solicitation Rules
Respondent's Employee Information Handbook effective
January 1, 1986, contained the following rule:
No employee shall solicit or promote subscrip-
tions, pledges, memberships or other types of sup-
port for any drives, campaigns, causes or organiza-
tions on Action Auto property during the scheduled
or assigned working periods of either the employees
engaging in such activity or the employee at whom
such activity is directed. The distribution or circula-
tion of leaflets, pamphlets, circulars or other printed
matter is likewise not permitted during such sched-
uled or assigned working periods or in work areas.
Senior management (company officers) are the only
employees authorized to change this rule.
Off duty employees are not permitted to return
to the store for purposes in violation of the above.
Employees were provided copies of this Handbook, and
if, as some claim, any employee did not know of the rule
this was due to their lack of diligence in reading the in-
formation provided them. This January 1, 1986 rule is
not alleged to be in violation of the Act.
On November 10, 1986, Personnel Director King
issued a memorandum to store managers and district
1s At hearing, Respondent objected to the admission of a card bearing
the name of Judy Dobroc on the ground it was not properly authenticat-
ed Respondent's objection is without merit because employee Patricia
Adcock credibly testified she saw Dobroc sign the card received in evi-
dence and give it to a union agent. All of the remaining cards included in
the count were properly authenticated as valid authorizations executed
by those whose names they bear.
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
managers setting forth , among other things, the follow-
ing information relating to solicitation and distribution at
Respondent's facilities:
Solicitation by Employees
A. The company policy related to solicitation by
employees posted on each employee bulletin board.
The policy states:
All solicitations in person or in writing and all
distributions are expressly prohibited during
working time and in work areas and public areas
of the company premises.
B. Understanding the policy and implementation.
1. Solicitation may be lawfully conducted on the
employee's own time and in non-selling and non-
working areas , only by employees normally sched-
uled at that time.
a. Do not interfere with distribution of any lit-
erature nor interrupt or inject yourself in discus-
sions.
b. After employees have returned to work, any
literature left lying about.
c. Do not question or engage employees in
conversation about union organizing solicitation
formally or informally in any manner whatso-
ever.
2. Solicitation by employees while on company
time in public work areas of the store is prohibited.
a. Reprimand the employee as you would for
violating any other policy including a warning
and record on a Disciplinary Warning Notice and
Action Taken Form.
b. DO NOT confiscate any material or engage
in any discussion about the union solicitation
effort.
Solicitation by Outsiders
A. The company policy related to solicitation by
outsiders is posted at the front of every store. The
policy states:
NOTICE TO THE PUBLIC
SOLICITATION OF ANY KIND OR DISTRIBUTION
OF WRITTEN MATERIAL IS PROHIBITED ON
THESE PREMISES.
ACTION AUTO, INC.
B. Understanding the policy and implementation.
1. Solicitation by outsiders for union or other
purposes in the public areas of these premises is
prohibited.
The memorandum also instructs management members
how to conduct themselves during a union organizing
drive. These instructions together with the references to
union solicitation in this November 10 memo support my
earlier conclusion Respondent was aware of the UAW
activity before it says it was. The notices referred to in
the memo were posted as indicated.-19
On January 1, 1987, Respondent issued a new employ-
ee handbook containing the following rule:
No employee shall solicit or promote subscrip-
tions, pledges, memberships or other types of sup-
port for any drives, campaigns , causes or organiza-
tions on Action Auto property during the scheduled
or assigned working periods of either the employee
engaging in such activity or the employee at whom
such activity is directed . Further, solicitation or dis-
tribution or circulation of leaflets , pamphlets , circu-
lars or other printed matter is likewise not permit-
ted during such scheduled or assigned working peri-
ods or in work areas or Public areas . Senior Man-
agement (company officers) are the only employees
authorized to change this rule.
Off duty employees are not permitted to return
to the store for purposes in violation of the above.
[Emphasis added.]
The only change from the rule in the 1986 handbook is
the addition of the underlined words.
The complaint alleges the maintenance of the policy
stated under part A. of the Solicitation by Employees
heading in the November 10 memorandum , and the pro-
mulgation , maintenance , and discriminatory enforcement
of the rule in the 1987 handbook were done in order to
discourage its employees from joining , supporting, and
assisting the Union and engaging in other protected con-
certed activities . The complaint does not allege, General
Counsel does not argue, and I do not find any of the
rules set forth above are unlawful on their face.
Inasmuch as the handbook rules are substantially iden-
tical and have been maintained since long before the
union activity here involved, the promulgation allegation
regarding the January 1, 1987 handbook rule is without
merit. Similarly, there is no persuasive evidence that rule
has been enforced against employees . General Counsel
apparently agrees with this conclusion inasmuch as her
brief relates "[i]t is clear that the policy was enforced
only against Union agents." This refers to an incident in-
volving a visit by Union Agents Velasquez and Charette
to Store 19 on March 26, 1987. According to Charette,
he and Velasquez entered the store merely to say "hi" to
the people. He and Velasquez agree Store Manager
Jezak asked them to leave the store and they did. Jezak
testified he recognized the two as business agents when
they came in . He therefore approached them and asked if
there was anything he could help them with . When they
said there was not, he said that if there was nothing he
could help them with he would ask them to , leave. They
left. Jezak testified credibly that this sort of conversation
had occurred with other people and he had reacted the
same way. There is no conflict in the testimony of the
three. The only issue is whether Jezak was discriminator-
ily enforcing the 1987 handbook rule. On its face the
19 Notices to the public which were stuck on the store windows were
not posted until they arrived from the printer several days after the
memo issued
ACTION AUTO STORES
1987 rule General Counsel relies on is applicable to em-
ployees, not others, and there is no evidence the union
agents were soliciting or distributing, or that Jezak
thought they were. According to Charette, their only
purpose was to say "hi." Whatever Jezak's reasons for
excluding the two, it has not been shown they were di-
rected at curing soliciting or distributing by employees
covered by the January 1, 1987 handbook rule, or Jezak
was enforcing such rule against the Union's agents.
The' brief rule relating to employee solicitation in the
November 10 letter is nothing more than a distillation of
the rule in the two handbooks, and its mere maintenance
is not unlawful even though accompanied by permissible
advice on how to behave in the presence of union solici-
tation or distribution.
General Counsel has not shown by a preponderance of
the evidence that the rules in question were unlawfully
promulgated, maintained, or enforced, and those allega-
tions will therefore be dismissed.
B. Adjustments in Compensation
The complaint alleges a November 10, 1986 modifica-
tion of the method by which mechanics were compensat-
ed as a violation of the Act because the purpose of the
modification was to discourage employee support for the
Charging Union and because the employees engaged in
protected concerted activity. There was indeed a modifi-
cation which had its genesis in employee complaints
before the presence of union activity in 1986 was known
to management. There is no evidence of any 1986 activi-
ty among employees on behalf of the UFCW until after
Hannula filed his charge in October 1986, and there is no
credible showing that Respondent was aware of any ac-
tivity on behalf of the UAW until after Hannula's charge
was filed. What happened here is that the mechanics
voiced their work-related concerns via the list Kern gave
Scigliano on or about October 1, 1986. Scigliano shared
it with' King, and the two of them were instructed by
Richard Sabo, Respondent's president, to look into the
mechanics' complaints, recommend appropriate remedies,
and make necessary changes. Thereafter King and Scig-
liano visited with the mechanics at all 20 of Respondent's
stores ` on the, following schedule. They made but one
visit to each store.
Date Time Store
10-06-86 9 :00 a.m. 2
10-07-86 11:00 a.m. 6
10-07-86 2:00 a.m. 11
10-08-86 11:45 p.m 5
10-08-86 3:00 p.m. 15
10-08-86 5.00 p.m. 33 j
10-09-86 3 :00 a m. 8
10-10-87 10 30 a.m. 7
10-13-87 11:15 am. 35
10-13-87 1:45 p.m 19
10-13-87 3:10 a.m. 40
10-14-87 3:30 a.m. 22
10-21-87 11 :00 a.m. 26
10-21-87 12:15 a.m. 24
10-21-87 2:50 p.m. 34
883
Date Time Store
10-21-87 3.30 p.m. 32
10-21-87 5:30 a.m. 38
10-23-87 2:00 a.m. 37
10-24-87 4:00 p.m 20
10-24-87 4:30 p.m. 16
Respondent was unaware of any current union activity
when King and Scigliano made these visits, and I am
persuaded after a study of the testimony of all witnesses,
both employee and management, regarding these meet-
ings that there was no mention of union activity at these
meetings. King and Scighano are credited on this point.
Their testimony relevant to these meetings was uncon-
trived, probable, and believable in the circumstances, and
is supported by the testimony of mechanics Rose and
Seymour. Testimony to the contrary was not impressive
and is not credited.
On October 20, 1986, King prepared a written summa-
ry of mechanics' complaints to that date, listing dissatis-
faction with compensation as the most important and the
60-hour, 6-day workweek as second in importance,
noting an employee preference for a 5-day, 50-hour
workweek. This summary was presented to Richard
Sabo. As a result, Respondent adopted, among others,
the policies set forth below effective November 14, 1986.
They were announced to the mechanics immediately
before the regularly scheduled sales meetings for the
Saginaw, Flint, and Lansing districts on November 12,
11, and 13 respectively. These changes in policy were ef-
fective at all of Respondent's stores.
1. COMPENSATION
A. Present commission arrangement (35% _ to
50%) will be retained.
B. Each mechanic will be assigned a rate
which will provide for basic earnings in slow low
volume weeks.
C. The basic earnings will be comprised of a
regular rate and an overtime rate based on a
work week of 50 hours.
D. This pay plan will allow the mechanic to
have high earnings when business is good and
have a certain base that he can count on in low
volume periods (provided he works the required
number of hours).
2 HOURS AND WORK WEEK
A. In conjunction with the above, a 45 to 50
hour, 5 day work week, will be established.
Mechanic Dale Adcock testified that District Manager
Corbin and Store Manager Johnson held a meeting of
mechanics at Store 35 in mid-November to advise them a
mechanic had been fired and work was slow. In closing,
Corbin told them how much they would make under the
new pay system and said the Company and employees
could work things out without a third party involved.
The accuracy of this testimony is questionable because
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
William Johnson did not become manager at Store 35
until January 1987. In any event, Corbin's closing state-
ment does not, as General Counsel suggest it does, show
the "motivating factor" behind the change in method of
compensation was union activity. The same is true of the
testimony of David Arnot that Corbin said at a store
meeting in December 1986 or January 1987 that he knew
employees were having pay problems which Respondent
had been ignoring for a long time, and "they" wanted to
make it up to the employees. This statement does not in
itself show unlawful motivation.
The record does not show by a preponderance of the
credible evidence that the changes were effected to dis-
courage employee support for the UFCW as the com-
plaint alleges, or for the UAW. The mechanics' Septem-
ber 1986 complaints, were made known to Respondent
about October 1, 1986. Respondent immediately acted to
remedy these complaints, without reference to any union
activity. General Counsel has not shown, as she must in
order to prevail, by direct evidence or reasonable infer-
ence that the purpose of the change was to induce or
coerce employees to refrain from union or other protect-
ed concerted activity. Accordingly, the allegation that
the modifications of the method of compensating violat-
ed the Act will be dismissed.
C. The Meeting at Flint Store 1(a) on November.
19, 198620
District Manager Roger Hill discovered on or about
November 18, 1986, that some Flint mechanics were dis-
satisfied with the November 14 changes in compensation,
and were considering representation by the UAW. Hill
informed his superiors who set a meeting with all Flint
area mechanics at Flint Store 1(a) for the evening of No-
vember 19 so that the compensation method might be
discussed and the employees be informed the right of the
UFCW to represent them was currently at issue.
During the meeting there was some brief discussion of
the issue of a "house mechanic" which was raised by
Mark Henry and is more fully covered in the consider-
ation below of his warnings and discharge. The meeting
was chaired by Richard Sabo who referred to the report-
ed interest in the UAW. He, and his brother C. James
Sabo, company chairman, advised the employees that
Flint employees were already represented by the UFCW
who had been certified as the result of a 1981 election,
but whose status was still being litigated by the Compa-
ny. He further stated that they should call the UFCW
before they proceed further with UAW activity, and it
seemed inappropriate for the UAW to seek to represent
the employees in view of the UFCW's status as repre-
sentative. Richard Sabo also referred to the fact only
20 After carefully studying the testimony of the various witnesses and
their comparative testimonial demeanor, I conclude that some of the dif-
ferences are due to the lapse of time between the meeting and the trial
and the tendency of some employees to testify to what they concluded
management representatives meant , rather than what they said I have
also noted that Mark Henry , a witness upon which General Counsel
relies, at times strays from his sworn pretrial statement. Bearing the fore-
going factors in mind' and with special attention to the probabilities, given
the reasons for the meeting and the subject matter discussed, the account
of the meeting here related is a reasonable and fair reconstruction Testi-
mony to the contrary is not credited
four or five unit employees were left from 1981 and that
was probably why the UFCW representation was not
generally known to the employees.
Employees Rose, Seymour, and Henry gave testimony,
denied by both Sabos, Scigliano, and King, that certain
other statements were made.
Robert Rose testified that Richard Sabo said the em-
ployees already had a union, the Union's representative
status was tied up in court, the Company would fight it
tooth and nail and would not have a union, the Company
would close if the Union came in, and employees would
be discharged if any union cards or activity came to his
attention. On cross-examination, Rose reduced his testi-
mony to a summary that Richard Sabo basically said
there was already a union for nine stores, only four
people who had participated in that Union were now
employed, the Union would not be able to help the em-
ployees (here I believe Rose refers to the UAW), the
representation matter was and would be in the court
system for some time, and Respondent would fight tooth
and nail whatever it took. Allowing some room for
Rose's interpretation of Sabo's statements, this cross-ex-
amination summary is not inconsistent with the testimony
of Respondent's officials.
Thomas Seymour testified that Richard Sabo threat-
ened to move out of state if the Union was to be in-
volved in the Company. Seymour also says James Sabo
said the employees already belonged to a union, the
UAW was doing wrong by getting involved, and the
employees should destroy the UAW cards.
Mark Henry testified that Richard Sabo said there
would not be a union, he would move the stores out of
Flint before he would allow a union to become part of
his stores, the Union could only hurt the employees, the
employees already had the UFCW and couldn't have
two unions, and he would go to any lengths to stop a
union. He further states one of the Sabos wanted em-
ployees to get both their UAW and UFCW cards back.
Taking last things first, I do not credit Henry that one
of the Sabos said employees should get their UAW and
UFCW cards back. His pretrial affidavit contains no
such contention as to the UFCW cards, and there, was
no UFCW card signing going on before December: 1986.
Nor do I credit Rose's assertion, denied by Respondent's
witnesses, that Richard Sabo threatened to discharge em-
ployees if union cards or activity came to his attention.
Rose does not include this claim in his cross-examination
summary of what was said, and neither Henry nor Sey-
mour testify to such a threat which they would most cer-
tainly vividly recall if it was made. James Sabo, the most
forthright and believable witness of all those testifying
about this meeting, credibly testified that no one made
such a threat or asked the employees to retrieve their
UAW cards. Seymour's claim, unsupported by either
Henry or Rose and specifically denied by Scighano, that
James Sabo said employees should destroy UAW cards
is not credited. The employees' testimony that Richard
Sabo said there would not be a union, he would go to
any lengths to stop it, the Company would fight it tooth
and nail whatever it took, and the Company would not
have a union is, I conclude, their interpretation of Rich-
ACTION AUTO STORES
and Sabo's statement the issue of UFCW representation
had been extensively litigated and Respondent was con-
tinuing to litigate it. Litigation of an unfair labor practice
allegation or a question concerning representation is not
unlawful. This record is bereft of any evidence of-vexa-
tious litigation by Respondent.
General Counsel generally characterizes Respondent's
case as a "work of historical fiction" as opposed to the
"honest accounts" of General Counsel's witnesses. Re-
spondent speaks in terms of the "straightforward and
consistent" testimony of its witnesses as opposed to the
"inconsistencies and contradictions" of General Coun-
sel's witnesses. These positions were to be expected, but
neither is entirely convincing. In some cases, General
Counsel's witnesses are the more persuasive. In others, it
is Respondent's witnesses who prevail. Here, I conclude
that Respondent's witnesses are the more persuasive in
terms of consistency and probability. General Counsel
simply has not shown by a preponderance of the credible
evidence that Respondent's agents said what employees
reported they did. Accordingly, the allegations in para-
graph 9(1) of the complaint that Respondent threatened
them and told them selecting a union representative
would be futile will be dismissed.
Respondent did not, as alleged, solicit and promise to
redress employee grievances at this meeting. Richard
Sabo explained how the base wage rates implemented
November 14, 1986, as part of the new compensation
policy were arrived at through an arithmetical process
based on their past productivity and a 50-hour work
period. Some mechanics complained the rates did not
look right. Richard Sabo promised that any of the rates
that had been erroneously completed would be correct-
ed. Mark Henry testified that the bigger of the Sabos,
and here I believe he was referring to James Sabo be-
cause he earlier referred to Richard Sabo as the shorter,
thinner Sabo, said "they spent a lot of money, and they
were spending a lot of money, forming committees to go
around to the stores, to find out some of the complaints
and concerns of the other mechanics, to see if we could
work this out, because we didn't need a third party at
Action Automotive." Apart from the fact Henry's recol
lections are questionable and this testimony is uncorro-
borated, the alleged statement of Sabo promises nothing
and solicits nothing when read in context. Moreover, I
do not believe it likely that Jim Sabo, who said very
little at this meeting and was not directly involved in
either the earlier complaint gathering or decision-making
based thereon, would for no apparent reason interject
himself into the explanation of the November 14 policy
changes. This purported statement is apparently prof-
fered as evidence of a promise of benefit, and is not al-
leged as unfair labor practice in any other respect. It is
not credited.
D. Events at Store 40
A number of violations of the Act are alleged to have,
occurred at Store 40, including the discharges of Pat Ho-
zeska and John Hafner.
885
1. Alleged independent violations of Section 8(a)(1)
(a) King and Scigliano visited Store 40 on October 13,
1986, to ascertain any work-related problems the me-
chanics had. This was a result of the list of complaints
delivered to Scighano on October 1 as heretofore dis-
cussed. Respondent had no knowledge of union activity
at that time. This visit, along with the others listed here-
inabove, resulted in the November 14 policy changes
earlier discussed. There was no discussion or mention of
a union. I am convinced this is the meeting referred to
by John Hafner when he testifies that Scigliano opened
the meeting with mechanics by stating he knew of union
activities, asked what employees knew about it, and
asked what he could do to better their jobs. Kurt Petre's
testimony agrees with King that he (King) only visited
the store once with Scigliano to inquire about mechanics'
problems. Petre does not support Hafner's claim Scig-
liano spoke and inquired about union activities. King and
Scigliano's testimony that the Union was not discussed
when they visited Store 40 is credited. I find King did
not accompany Scigliano on any other visits to Store 40,
and their solicitation of grievances on October 13 as the
continuation of a process lawfully begun did not violate
the Act. The complaint allegation of interrogation, solici-
tation of grievances, and implied promise of redress by
Scigliano and King on November 12, 1986, must there-
fore be dismissed.
(b) Patrick Hozeska credibly testified, substantially
corroborated by Kurt Petre, that Kalinowski asked him
and Petre if they had signed union cards, and, if so, to
give them to him. He also asked if they knew anything
about a union, and said he had instructions to fire any-
body he heard talking about a union. Kalinowski's deni-
als are not credited. Petre remembers this confrontation
occurred in October. Hozeska recalls, correctly I be-
lieve, it was sometime in November. It probably took
place around November 19 when Respondent knew of
and discussed the UAW activity in Flint. The complaint
alleges early November. This is not a sufficient variance
to prevent the finding of a violation of the Act. 2 11 The
same is true of John Hafner's credited testimony that he
was present in early November when Kalinowski told
employees he thought they had union cards and asked
them to give the cards to him. I conclude the three em-
ployees are talking about the same incident. The matter
has been thoroughly litigated and I conclude and find
that Respondent, by its Supervisor and A gent Kalin-
owski, coercively interrogated employees regarding their
union activities, threatened employees with discharge for
engaging in union activity, and requested they give him
any union cards they had. By so doing, Respondent en-
gaged in conduct having a reasonable tendency to inter-
fere with, restrain, and coerce Petre and Hafner, but not
Supervisor Hozeska,22 in the exercise of rights guaran-
teed them by Section 7 of the Act, and by so doing vio-
lated Section 8(a)(1) of the Act.
(c) Petre and Hafner refer to another meeting in No-
vember, late November according to Hafner, when they
21 See, e g, Omeco Plastics, 184 NLRB 767, 770 (1970)
22 Hozeska is found to be a statutory supervisor later in this decision
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and mechanic Hudfeltz met with Scigliano and Tom Ka-
linowski, the store manager. Scigliano and Kalinowski
acknowledge such a meeting on December 1, 1986,
which is not seriously inconsistent with Hafner's estimate
of late November and is found to be the correct date as
the complaint alleges. As earlier noted Respondent was
aware of the UAW activity among mechanics by that
time, had referred the Flint mechanics to the UFCW as
their representative, and, as evidenced by Kalinowski's
conduct in November, suspected its Store 40 employees
supported a union. Petre, Hafner, Scigliano, and Kalin-
owski all describe this meeting.
Petre's Version
Scighano asked what problems employees had with
the Company. No one answered. Finally, Scigliano asked
Kalinowski if he had any control over the service
garage. Kalinowski shook his head and said he did not
know. Scigliano then said something to the effect that if
nobody was going to talk with him he would fire them
all. He continued that he would not put up with them
not talking to him and it was insubordination. Petre vol-
unteered that the Company would fire or try to fire him
if he voiced his real complaints. Scighano reassured him
this was not so. Then Petre said that Scigliano had been
there a couple of days before and was now saying what
he had said then which resulted in Petre receiving a pay
cut under the new program. Scigliano retorted that if
Petre did not like the way they were doing things maybe
he should find a new job.
Hafner's Version
Hafner agrees with Petre's version generally, but adds
that the failure of employees to reply followed an open-
ing statement by Scigliano that he wanted to know why
the employees were upset and why they wanted the
Union. Then, when no one responded, Scigliano said that
was why he did not want the Union because the employ-
ees would not talk to management. He then added if
they did not want to talk to him he would take it as lack
of interest on their part, and they could fmd other jobs.
Thereafter the conversation with Petre proceeded on
wages and other concerns.
Kalinowski's Version
Scigliano said he was there to talk to them about the
problems with the new program. No one responded.
Scighano said that if no one was going to talk to him
they might as well leave. He did not say they would be
fired. Petre spoke up and said he'd tried talking to man-
agement before and it didn't do any good. He said that
he wasn't making enough money and he had problems
with the base pay, and the new program, and working
holidays. Scigliano told Petre that if he didn't think he
was making enough money that he could be transferred
to another store that was busier and make more money.
Scighano did not say anything about leaving the Compa-
ny, or being terminated, or quitting. Scigliano mentioned
that if someone was unhappy they could go elsewhere.
Then he indicated to Petre that he could be transferred.
He said there would be no changes in the program, that
it was going to be as it was. Union activity was not dis-
cussed.
Scighano's Version
The meeting lasted 10 or 15 minutes. It had been
brought to his attention that day that these employees
had concerns about the November 14 working arrange-
ments. Jim Corbin had told him that when they were
opening up new Store 43. He was already in Saginaw.
Then he went over to Store 40 to see if he could help
with any problems they had. Neither the Union, union
activity, third parties, nor outsiders were discussed. He
did not know of any union activity as of December 1 at
Saginaw. He said he understood they had some ques-
tions. Nobody said anything for a couple of minutes. He
then said he was there to answer any questions they
might have and why weren't they talking to him. They
didn't say anything so he added that their lack of re-
sponse showed him that he had no idea why they were
even working there if they didn't have any interest in
what was going on. Petre spoke up and said that anytime
they talked to management in the past they did not get
anywhere so there was no sense in talking. Petre said he
had a problem with the basic work arrangements, the
hours, holidays, Sunday work and those kind of things,
and the base rate. Scigliano told him the program was
the program, there were not going to be any changes,
and that if he was not happy there were a couple of al-
ternatives. He could not do anything about the base rate
and making more money, other than perhaps transfer
him to a busier store. Regarding anything else, if he was
not happy with it then he could quit, either be happy
with it or leave and find work elsewhere. Petre was told
he could transfer to another store because Store 40 was
slow and there's a possibility another'store would be
busier. Nothing was said about the Union.
Petre does not corroborate Hafner's testimony regard-
mg Scigliano's mention of a union, and Kalinowski and
Scighano deny any conversation was had regarding a
union or union activity. Hafner's testimony in this regard
is not credited, and I find Scigliano's version the more
probable and believable of the four Scigliano did not
make any statements at this meeting violative of the Act.
(d) On December 23, 1986, Kalinowski, who had
heard mechanic Dale Barror was distributing union au-
thorization cards, approached Barror at work and, after
telling him it was in the grapevine that he was one of the
leaders in the Union or something to that effect, asked if
Barror had any union involvement. Barror denied that he
did. Kalinowski had no justifiable reason to so question
Barror, and I find that when the store manager so ques-
tions a subordinate without a good reason recognized by
law he is coercively interrogating that employee con-
cerning his statutorily protected activities. By so doing
Kalinowski violated Section 8(a)(1) of the Act. I do not
believe however that reference to a rumor of union ac-
tivity constitutes the creation of an impression of surveil-
lance.
(e) Barror credibly testified that Kalinowski the next
day again asked him if he was involved in union activity,
told him Scigliano and Roger Hill would come to talk to
ACTION AUTO STORES 887
Barror because they had heard he was so active, that
Barror should be careful what he said to them because
he could lose his job, and if the Union came in the Sabos
would close the doors. Kalinowski's denials are not cred-
ited, and I find he here again coercively interrogated
Barror about his union activity, and also threatened him
with possible discharge if he did not cooperate with an
inquiry into his union involvement, and with plant clo-
sure if the union organizing was successful. The interro-
gation and threats individually and collectively reason-
ably tended to coerce, restrain, and interfere with Bar-
ror's exercise of Section 7 rights, and violated Section
8(a)(1) of the Act.
(f) Scigliano and District Manager Corbin visited Store
40 on December 27, and talked to Barror. Scigliano and
Corbin were both aware that Barror was active on
behalf of the Union. According to Barror, Corbin asked
if he was involved in the union activities and he said he
was not. Corbin said they wanted to get all problems
cleared up with the employees without having the Union
in, and asked if Barror had any problems with the Com-
pany. Barror said he had a problem with the pay scale
and the change in compensation computation had result-
ed in a wage cut for him. Corbin said he would try to
get it straightened out and if Barror was involved in the
Union it wasn't going to do him any good. After that
meeting his salary was raised and his hours cut. Corbin
and Scigliano deny the union activity related questions
and comments that Barror imputes to Corbin were made.
Corbin testified that he and Scigliano were touring the
stores. They had recently opened Store 43 and that was
close to 40, so they stopped in. They met Barror as they
walked into the service area on their way to the back
door to examine the rear part of the store. As they
passed he said "Hi" to Barror, and asked how he was.
Barror ' said he was not doing so good because he had a
problem with his pay and he had been getting $ 1,0 a
week less than what he had before that. This was in ref-
erence to the change made in November. Corbin told
him that was incorrect and it shouldn't have happened,
that it was not in keeping with his recommendation and
he'd check into it. He went back and checked and found
that his recommendation for Barror had by error been
changed to $10 a week less. He initiated a change to cor-
rect that on or about January 2, 1987. Scigliano's testi-
mony is consistent with that of Corbin, and I am per-
suaded their version is the more believable than that of
Barror where they conflict. Corbin's version is a reasona-
ble matter-of-fact account of the happenings at Store 40,
is logical and probable, and has the "ring of truth."
There was no reason for them to ascertain what they al-
ready knew about Barror's union sympathies, and Corbin
particularly impressed me a credible witness on this inci-
dent. Accordingly, I conclude no unlawful interrogation
occurred in this conversation, and further conclude that
an inquiry as to how Barror was is not a solicitation of
grievances. It is an ordinary every day expression com-
monly used in casual conversation which cannot be con-
strued in these circumstances as an unlawful inquiry.
Moreover, I cannot believe and do not find that a prom-
ise to check and/or correct an error in wage computa-
tion is forbidden merely because there is union activity
afoot. The presence of such activity certainly does not
require an employer to continue to pay an employee less
than what is due him when that situation arose from the
employer's erroneous arithmetic.
(g) On or about January 14, 1987, several employees
attended a union meeting at John Hafner's house. During
this meeting, Kalinowski's automobile was seen to drive
back and forth past Hafner's house. Two or three weeks
after Patrick Hozeska quit on January 23, I{ozeska was
at the store buying gasoline and talking to Kalinowski
who then admitted that he had driven by-Hafner's house
to determine who was there. Kalinowski does not deny
he did this, and I conclude and find he violated Section
8(a)(1) of the Act on January 14, 1987, by engaging in
surveillance of Respondent's employees holding a union
meeting.
(h) The day following his surveillance of the union
meeting at Hafner's house, Kalinowski approached cash-
ier Sheryl Hebert, who had been at the meeting when
Kalinowski drove by, and said he heard employees had a
meeting the night before. Hebert is still employed by Re-
spondent, and her version of events is credited. She said
they had and it was just a b.s. session. Kalinowski said,
"O.K., I just asked," 'and walked away. Contrary to Re-
spondent, Kalinowski was not posing a rhetorical ques-
tion addressed to no one in particular about a well publi-
cized union meeting, as in Benham Corp.'23 nor was the
discussion initiated by Hebert as in Herb Kohn Electric
Co.24 Here Kalinowski initiated the inquiry for no appar-
ent reason other than to ascertain whether Hebert at-
tended the meeting and what there happened. Such an
inquiry of an employee by the chief management officer
present at that store reasonably tended to place Hebert
on notice Respondent was aware of employee union ac-
tivity and was seeking to know more about it. This type
of conduct has a rather obvious inhibitory effect on em-
ployees confronted with a statement of employer knowl-
edge of and interest in their protected activity at a time
that employer has, as here, engaged in other unfair labor
practices. Accordingly, I find, as the,complaint alleges,
Kalinowski engaged in coercive interrogation violative
of Section 8(a)(1) of the Act.
2. The discharge of John Hafner
Hafner was employed as a mechanic. In July 1966 he
was transferred from Store 19 to 40 where Tom Kalin-
owski was the store manager. On August 29, 1986, Ka-
linowski prepared and signed an evaluation of Hafner
wherein, based on a I to 5 scale, he rated Hafner a 5 on
dependability/attendance, work quantity, safety/house-
keeping, and team work, and a 4.5 on customer assist-
ance/courtesy, work quality/job knowledge, initiative/-
enthusiasm, judgement/stability, security/shoplifting, and
expense/waste control. The rating on each and every
one of these factors is followed by a laudatory statement
in support thereof, and the evaluation concludes with the
following comment from Kalinowski: "In the short time
John has worked for me he has shown me hard work
23 284 NLRB 481 (1987).
24 272 NLRB 815 (1984)
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
along with excellent service for the customer I recom-
mend [sic] him highly as being one of the best mechanics
in Saginaw."
The only disciplinary warning that Hafner received, so
far as the record shows, was issued by Kalinowski on
December 8, 1986, because Hafner was late for work,
and it relates "John did not call in Sunday Dec. 7 for
being late he said his truck broke down he didn't have
any other explanation then he didn't have the store's
telephone number." Respondent concedes and I find the
warning played no part in the later decision to discharge
Hafner.
Holly Lucas brought her automobile to Store 40 at
about noon on December 16, 1986, for a tuneup. Upon
examining the vehicle Hafner discovered other repairs
were needed. He so reported to Kalinowski who secured
Lucas' permission to perform these additional repairs. It
was understood that Lucas would pick the car up after
she left work at 5 p.m. About 5 or 5.30 p.m., before the
end of his shift at 6 p.m., Hafner discovered a broken
motor mount and a need for carburetor adjustment. He
so reported to Kalinowski who told him to perform the
carburetor adjustment, but to defer the motor mount re-
placement to the following day when Lucas would leave
her car again.25 Kalinowski left the store about 5:30 p.m.
Kurt Arnold, the assistant manager, was in charge in Ka-
linowski's absence.
When Lucas arrived to pick up her automobile Arnold
explained what had been done and what the cost was.
When she asked for the old part that had been replaced,
Arnold gave it to her. Hafner joined the two and ex-
plained and showed her what had been wrong with the
old part. Hafner returned to the garage. Arnold followed
and, standing in the open door between the garage and
the customer service area, asked Hafner if he had re-
placed the motor mount. Arnold apparently was - con-
fused as to exactly what work had been performed. Ac-
cording to Arnold, Hafner said that "if f Kalin-
owski had put the shit on the work order, the f
work would get done." Kalinowski testifies that Arnold
later reported to him that Hafner said that. I find this
practically identical testimony of Arnold and Kalinowski
before me on January 13, 1988, regarding Hafner's
remark to be quite remarkable inasmuch as neither of
them was able to remember what Hafner said when they
testified at a hearing before the Michigan Employment
Security Commission on May 5, 1987. Why they now so
specifically recall what they did not then recall is unex-
plained.
At both the trials before me and the May 5, 1987 hear-
ing before Michigan authorities, Hafner had a failure of
recollection when asked what he said to Arnold. Ac-
cording to Dale Barror, another mechanic at Store 40,
he heard Hafner tell Arnold if they wanted "the damn
work complete they should put it on the f work
order." Considering that Barror is a fellow union sup-
porter with no discernible reason to fabricate testimony
against Hafner, and further considering that Hafner's
complete failure of recollection and the suspiciously
25 Kahnowski did not have Lucas' authorization to repair the motor
mount at this point
identical detailed testimony of Arnold and Kalinowski
more than a year after the fact and 8 months after both
failed to recall the words spoken are not convincing, I
am persuaded that Barror's version is probably the most
reliable since it has not been shown to be of recent in-
vention and there is no good reason to reject it. I am
persuaded vulgar language was used, and Barror im-
pressed me as the most reliable reporter as to what it
was.
Arnold claims that when he turned toward the cus-
tomer service area he saw a red-faced Lucas about 10
feet away, whereupon he hastened to express his regret
she had overheard what had gone on. Arnold continues
that Lucas said that was all right, and he again apolo-
gized. Lucas testified that she heard no offensive lan-
guage and reported none. Holly Lucas was a neutral wit-
ness who impressed me as entirely truthful, and she is
credited.
Arnold telephoned Kalinowski and told him Lucas
had overheard Hafner make the statement he and Kalin-
owski now remember. Kalinowski went to the store and
called Hafner who had gone home. Hafner testified that
Kalinowski told him on the phone that he was fired and
should come pickup his tools because Arnold had report-
ed Hafner had lost his temper and swore in front of a
customer. Hafner said nothing like that had happened
and Kalinowski should ask Barron I credit Hafner be-
cause his testimony was reasonable and believable and
because his recitation of the sequence of events is tangen-
tially corroborated by the fact Kalinowski' did ask Barror
who told him what Hafner said . Barror is credited that
he told Kalinowski the same thing he testified to before
me as being Hafner's words. Hafner went to the store.
Further conversation with Kalinowski produced the
same result. Hafner was discharged. According to Kalin-
owski, he fired Hafner because he used vulgar language
in front of the customer and the language showed disre-
spect toward Arnold: Kalinowski wrote on the Decem-
ber 16 exit interview report that Hafner was fired for
misconduct because:
John was told to do a repair on the customer and
did not do it, when the customer came to pick the
car up, the assistant on duty ask John if he had
done the work John said he was not told and pro-
ceeded in vulgar language to Kurt (the assistant) in
front of the customer, on how he was not told and
did not get the part from the parts person to do the
job. This embarrassed Kurt & the customer.
At the hearing before the Michigan Employment Securi-
ty Commission, Kalinowski stated he fired Hafner for in-
subordination consisting of using foul language 'before a
customer, and that Hafner denied so doing, but he be-
lieved Arnold. When pressed to explain what was insub-
ordinate, he conceded Hafner did not refuse to perform
work, but pointed out Hafner had not completed the
motor mount work. In the same proceeding, Arnold ad-
vised "everybody uses a little vulgar language but we
tried not to in front of customers." Arnold, in the same
proceeding, further stated that had the customer not
looked upset or had not indicated the language bothered
ACTION AUTO STORES
her he would not have told Kalinowski about the inci-
dent because "there would have been nothing to tell."
This concession corroborates other testimony that such
language between employees and supervisor is not un-
common in Respondent's garage areas, and also demon-
strates that Arnold was not concerned about the lan-
guage for any reason other than his purported conclu-
sion, a false one, that Holly Lucas had heard and been
offended.
When Kalinowski advised District Manager James
Corbin immediately after he had discharged Hafner that
he done so, Corbin told him to verify what had hap-
pened and apologize to the customer. Kalinowski called
Lucas- that same evening. According to Kalinowski, he
apologized for what had happened, and Lucas did not
deny the incident had happened but said she did not
want to get involved and did not want to get anyone
fired. Lucas' version is quite different. She testified that
when Kalinowski told her he had fired the mechanic for
using bad language she asked him what he was talking
about and told him she had no complaints, had heard no
bad language, and her car was running fine. I credit
Lucas, a straightforward neutral witness unaffiliated with
any party to this case.26 She did not verify Arnold's
story that she overheard and was embarrassed by
Hafner's comments. Even so, Kalinowski did not relent
and, when Hafner returned on December 17 to pick up
his tools, told Hafner he was fired because Lucas had
overheard him and because he had "disrespect" toward
Arnold.
The facts do not square with Kalinowski's remarks on
Hafner's exit interview report or with Respondent's posi-
tion. Hafner did not fail to do work assigned to him. He
did not use vulgar language "in front of the customer"
who was in the other room and did not hear his state-
ment to Arnold. The allegation of disrespect toward
Arnold is pure makeweight given the fact that the evi-
dence shows a common use of vulgar language by both
employees and supervisors and between them, and the
further fact that Arnold was not particularly perturbed
by Hafner's language standing alone as shown by his tes-
timony at the Michigan Employment Security Commis-
sion hearing that "there would have been nothing to
tell" Kalinowski if the customer had not heard it. Lucas
did not hear it and therefore, by Arnold's testimony,
Hafner's language should have occasioned no discipline
at all. Add to all this Kalinowski's inability before the
Michigan hearing officer and before me to reasonably ex-
plain why he considered Hafner to be insubordinate. The
conclusion is warranted that Respondent's asserted rea-
sons for the discharge of Hafner are devoid of substance
and pretextual excuses rather than colorable reasons, and
I so find.
26 Contrary to Respondent, that Lucas may have been reluctant to get
involved in Hafner's discharge and/or this proceeding and may have said
so is a perfectly natural reaction carrying with it no inference warranting
the rejection of the testimony of Lucas whose demeanor bespoke integri-
ty and whose testimony was entirely believable Her testimony relative to
not hearing Hafner is not contradicted by alleged discriminatee Hozeska
as Respondent claims it is Hozeska merely testified that Lucas told him
she did not want to get involved
889
I have found elsewhere in this decision that Respond-
ent was aware of interest in a union among its mechanics
prior to Hafner's discharge. Kalmowski's November 1986
solicitation of Hafner and others to surrender any author-
ization cards they might have demonstrates a belief by
Respondent that its employees in the Saginaw district,
here specifically Store 40, were engaged in union activi-
ty. It also demonstrates, as do various other unfair labor
practices found that Respondent opposed employee
union activity. Although Hafner had not signed a union
authorization card prior to his discharge, he had favor-
ably discussed union representation with other employ-
ees, and had signed a petition in favor of such represen-
tation. That Respondent knew or suspected Hafner's
union leanings is strikingly evidenced by Kalinowski's
November request for authorization cards. Hafner's
union support and Respondent's knowledge or suspicion
thereof combined with Respondent's hostility toward
union representation of its employees and the failure of
Respondent's asserted reasons for Hafner's discharge set
forth a prima facie case that the discharge was motivated
by Hafner's union support. Respondent's efforts to rebut
this prima facie showing fail because the reasons prof-
fered are pretexts. Accordingly, Respondent has not met
its burden of proving Hafner would have been dis-
charged in the absence of protected union activity, 27 and
the pretextual nature of its proffered reasons, in a context
of surrounding unfair labor practices, warrants an infer-
ence of an unlawful reason,28 which I draw. General
Counsel has proved by a preponderance of the credible
evidence that the discharge of Hafner was designed to
discourage employee union membership and activity, and
therefore violated Section 8(a)(3) and (1) of the Act.
3. Statements to and treatment of Pat Hozeska
General Counsel alleges that Respondent made state-
ments to Hozeska violative of Section 8(a)(1) of the Act,
and violated Section 8(a)(3) and (1) by reducing his
hours, assigning him more onerous work, and later dis-
charging him on January 23, 1987. The parties differ as
to whether Hozeska was a statutory supervisor. General
Counsel says no, but Respondent says yes. The burden of
proof rests on Respondent .2 11 The answer to this problem
could be dispositive of some of the allegations and will
therefore be dealt with prior to a consideration of the
conduct put in question by the complaint.
Hozeska was a service writer until his title was
changed to assistant manager-service effective January 2,
1987. He was employed at Store 40 at all times relevant
to this case. The Stipulated Election Agreement of the
Company and the Union which led to the April 9, 1987
representation election in Saginaw stores set forth a store
employee unit'expressly excluding service writers and as-
sistant managers-service. Respondent's Retail Manage-
ment Rosters for August, September, October, and De-
cember 1986 and January 1987, list Hozeska as a member
29 Wright Line, 251 NLRB 1083 (1980), NLRB v Transportation Man-
agement Corp., 462 U.S 393 (1983)
28 Shattuck Denn Mining Corp. v NLRB, 362 F 2d 466, 470 (9th Cir
1966)
29 Soil Engineering Co, 269 NLRB 55 (1984)
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the management team at Store 40. That Respondent
considers service writers to be members of management
is further indicated ' by a November 10, 1986 letter to
store managers and district managers wherein it specifi-
cally names service writers as members of management
subjecting Respondent to charges of unfair labor prac-
tices if they do not observe certain cautions in discussing
unions with employees . The identification of Hozeska in
Respondent 's records as a member of management does
not conclude the issue.30
The service writer job description given to Hozeska
on February 14, 1986, reads , in relevant part, as follows:
The service writer is the person who is responsi-
ble for the safe and efficient operation of the service
department on a day to day basis . He/she is respon-
sible for all equipment , inventory and other assets.
The service writers main objective is to earn a
profit.
The service writer is responsible for:
1. Overseeing all mechanics , insuring that all
jobs are done properly.
2. Insuring customer satisfaction.
3. Opening and closing of the service depart-
ment.
4. Maintaining Q.S.I.V.
5. Training new mechanics.
6. The correct pacing and collection for all
jobs.
7. The completion of all paperwork, including
end of week reports.
8. The filling out of all work orders.
9. The repair and maintenance of all company
vehicles.
The service writer reports to the store manager.
James Corbin , a district manager during Hozeska's em-
ployment, credibly testified3 i that when he hired Ho-
zeska he told Hozeska he had certain responsibilities as a
member of management including directly supervising
the mechanics , controlling workflow in the service de-
partment, completing the necessary paperwork, and
taking necessary disciplinary measures . With respect to
discipline , Hozeska testified without contradiction that
his recommendations in that regard were not all adopted.
This implies that some were.
A management meeting attended by managers , assist-
ant managers , senior assistant managers , and service writ-
ers from nine Saginaw area stores took place on Decem-
ber 23, 1986 . Hozeska was present and listed his title on
the meeting roster as senior service writer. A new job
description changing the job title to assistant manager-
service was distributed to the store managers at the
meeting to be later distributed by them to then service
writers. Hozeska's uncontroverted testimony that he did
not see a copy of the new job description is credited, but
I am persuaded he knew of its existence when it was
30 Iron Mountain Forge Corp, 278 NLRB 255 , 262 (1986)
31 Corbin 's testimony is corroborated by Roger Hill , another district
manager, who was present when Hozeska was hired
passed out at the meeting. It reads, again in relevant part,
as follows:
The Assistant Manager-Service is the person
who is responsible for the safe and efficient oper-
ation of the service department on a day to day
basis. He/she is responsible for all equipment , inven-
tory and other assets . The Assistant Manager-Serv-
ice has the main objective of earning a profit.
The Assistant Manager-Service is responsible for:
1. Overseeing all mechanics , insuring that all
jobs are done properly.
2. Insuring customer satisfaction. -
3. Opening and closing of the service depart-
ment.
4. Maintaining Q.S.I.V.
5. Enforcing all company policies, including
personnel policies and work rules , discipline and
termination as needed.
6. Training new mechanics.
7. The correct pricing and collection for all
jobs.
8. The completion of all paperwork, including
end of week reports.
9. The filling out of all work orders.
10. The repair and maintenance of all company
vehicles.
11. Insure that all equipment is maintained and
that the maintenance checklist is completed.
The only new responsibilities are those set forth in items
5 and 11. There is evidence that service writers other
than Hozeska signed employee reprimands but, as Gener-
al Counsel correctly notes, that some do is not conclu-
sive evidence that all do.32
There is no persuasive evidence Hozeska ever had or
exercised authority to hire, fire , lay off, promote or
demote, or to effectively recommend any such action.
He punched a timeclock as did all store personnel, and
he did not , as Respondent claims, receive family insur-
ance coverage not available to nonmanagement employ-
ees. Respondent 's employee handbooks for 1986 and
1987 show mechanics and drivers get the same coverage.
The State issues certifications to mechanics on their
expertise in specific areas When assigning mechanics to
new work, Hozeska attempted to match their particular
expertise to the needed repairs as required by state law.
When all available mechanics were equally qualified he
would "just take turns" "to make it fair." The determina-
tion to "take turns" in assignment appears to have been a
result of his independent judgment. His estimate that
Store Manager Kalinowski "often" countermanded his
assignments because he concluded Hozeska was engaged
in favoritism was not impressive in view of his statement
he does not know how often and the absence of any evi-
dence of a specific instance of countermanding . Hozeska
concedes that he "oversees" all the mechanics, and was
responsible for acquainting new mechanics with rules
and regulations peculiar to the garage area. He agrees
32 Staco Inc , 244 NLRB 462 , 461 (1979)
ACTION AUTO STORES
with Respondent it was his responsibility to assure the
work performed was correctly done and satisfied the
customer before he released the car to the customer. Ho-
zeska had the options of inspecting, test driving, or doing
neither to a repaired vehicle, and to refuse to release it if
he, in his judgment, found the repair to be unsatisfactory.
A refusal to release meant the mechanic who had done
the work had to perform additional work on that car.
Hozeska also had the independent authority to select and
reassign a mechanic from one uncompleted job to an-
other with more priority. The record does not disclose
how priority was determined but, in the absence of evi-
dence to the contrary, I believe it most probable that
Hozeska who wrote the original service order and as-
signed the work was also the person who determined
which job had priority. The preponderance of the evi-
dence indicates Hozeska was responsible for the daily
operation of the garage and its equipment, directly moni-
tored the work of the mechanics, used his own judge-
ment in assigning and reassigning work to mechanics,
and rejected unsatisfactory work by the mechanics and
thereby caused them to redo it. The possession of any
one of the functions enumerated in Section 2(11) of the
Act is sufficient to establish supervisory authority.33
Specifically listed in Section 2(11) are assignment and re-
sponsible direction of employees requiring the use of in-
dependent judgement. Hozeska used his independent
judgement to both assign and responsibly direct employ-
ees and was, therefore, a statutory supervisor at all times
relevant to this proceeding, much like Wood in Custom
Bronze & Aluminum Corp., 197 NLRB 397 (1972). Even
though I find Hozeska was a statutory supervisor, it is
always possible the Board may not agree. In view of that
possibility, I shall make the requisite findings of fact with
respect to the treatment accorded Hozeska and alleged
to be unlawful.
The conclusion that Hozeska was a supervisor does
not alter the fact that Respondent, by its supervisor and
agent, Kalinowski, violated Section 8(a)(1) of the Act by
asking Hozeska and Kurt Petre in November 198634 if
they knew anything about a union, and by telling them
he had been instructed to discharge employees for any
such activity.35 Here Petre was present and a unit em-
ployee. Kalinowski's interrogation and threat reasonably
tended to interfere with, restrain, and coerce Petre in the
exercise of his statutory right to engage in union activity,
whether or not Hozeska was a supervisor.
Corbin and David Scigliano, Respondent's vice presi-
dent, met privately with Hozeska on December 29, 1986,
because it had come to their attention that Hozeska was
with employee Barror when he was soliciting employees
to sign union authorization cards. There is no significant
dispute among the participants regarding what occurred
during the December 29 meeting. To the extent one or
33 Spring Valley Farms, 272 NLRB 1323 (1984).
341 believe it likely that this conduct took place after Respondent
learned of UAW conduct and cautioned employees about it in Novem-
ber
3s The complementary and mutually corroborative testimony of Petre
and Hozeska regarding the content of Kalmowski's remarks was credited
over Kalinowslci's denial even though I find Hozeska's veracity suspect in
other instances
891
another testified to something not alluded to by the
others that item has been incorporated into the following
recitation of facts where it appears probable. Scigliano
told Hozeska that reports of him distributing union cards
had been received. Hozeska denied this conduct. Scig-
liano said Hozeska was a supervisor, could not be in-
volved in union activity, could not vote, and was needed
as a number of management's team to assist in opposing
the Union. Scigliano closed by telling Hozeska to report
anything he heard about union activities to his superiors.
This conversation amounts to interrogation about Hozes-
ka's union activity, admonition to refrain from such ac-
tivity, and solicitation to report on employees' union ac-
tivity. The interrogation, admonition, and solicitation
would all violate Section 8(a)(1) of the Act as having a
reasonable tendency to interfere with, restrain, and
coerce an employee in the exercise of Section 7 rights if
Hozeska were not a supervisor, but he is. When he
became a supervisor he surrendered protection of the
Act except in very limited circumstances not here
present. 36 Hozeska did not heed the .instruction to re-
frain from union activity, but attended a meeting of
union adherents at John Hafner's home on January 14,
1987. As earlier noted, Kalinowski spied on this meeting
in order to ascertain who was present, and noted Hozes-
ka's presence. The next day, January 15, Hozeska discov-
ered his work schedule had been changed to reduce his
workhours for the week ending January 22 from 40 to 26
hours. According to Hozeska, Corbin and Kalinowski
then told him the reduction was because times were
slow. Hozeska states that he called Corbin on January 16
and again asked why his hours were cut. Corbin replied
times were slow. Hozeska testified that he then asked
Corbin if it was "because I was in the union, that meet-
ing at John's house." Corbin responded "no," but asked
"Are you in the union?" Corbin testified that he and Ka-
linowski told Hozeska on January 15 the cuts were due
to labor sales reduction, and that he,told Hozeska the
same thing during a later phone call from Hozeska.
Corbin avers there was no discussion of the Union or
union activity, and states he did not ask Hozeska if he
was in the Union. On this second conversation Corbin
was the more believable of the two, 37 and it seems un-
likely that Corbin would interrogate Hozeska regarding
his union sympathies when they were already known to
him by virtue of Hozeska's part in Barror's card solicita-
tion, and probably as a result of Kalinowski's surveil-
lance of the meeting at Hafner's house.
Respondent's knowledge of Hozeska's union-related
activity, its hostility toward such conduct, the presence
of other unfair labor practices, and the timing the day
after the union meeting at Hafner's are sufficient to make
a prima facie case the reduction in hours, effective the
workweek beginning January 16, 1987, was motivated by
Respondent's desire to discourage union membership and
activities.
36 J D Lunsford Plumbing, 237 NLRB 128-130 (1978), and Parker-
Robb Chevrolet, Inc., 262 NLRB 402 (1982).
37 It appeared to me that Hozeska would at times during his testimony
embroider the facts, perhaps as a result of poor recollection and/or wish-
ful thinking, to better fit his case
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent concedes that Hozeska's hours were re-
duced. Respondent's records show that during the week
ending December 4, 1986, Hozeska worked 51 hours and
never worked less than 40 hours from the week ending
December 18, 1986,38 until his original schedule of 40
hours for the week ending January 22, 1987, was
changed by Corbin and Kalinowski to 26 hours. That
schedule change was effected on January 15. Respondent
contends the change was based on a decline in labor
sales. Corbin testified that no similar schedule adjust-
ments were made in service departments in any of the
other stores in the Saginaw district because they did not
have the losses in labor sales that Store 40 did, but that
there were some cuts in other districts and some cuts in
other store departments in the Saginaw district. Re-
spondent proffered no documentary support for these as-
sertions. Kalinowski also testified that the hours of other
employees within the district were reduced .39 The fail-
ure of Respondent to produce its records in support of
Corbin's general testimony on labor sales in other stores
in the Saginaw district and reductions in hours in other
district40 persuades me this testimony of Corbin is of
little probative weight.
Respondent points to a decrease in income from the
service department as a reason to reduce Hozeska's
hours. This is not altogether convincing because even
though there had been a decline in earnings from labor
in the department which continued after the reduction in
Hozeska's hours, he was in effect replaced by Russ Har-
rison , a mechanic, who was given the hours Hozeska had
previously worked. The store schedules in evidence
show the number of hours scheduled for each employee
in the service department during the week ending De-
cember 4, 1986, through the week ending February 5,
1987, except for the week ending December 11 which is
not in evidence. The data from the schedules are summa-
rized below to show the hours assigned to each employ-
ees during each pay period. All but Hozeska were me-
chanics:
Week/ending 12/4/86 12/18 12/25 1/1/87 1/8 1/15 1/22 1/29 2/5/87
Hozeska 51 47 42 40 40 40 26 24
Petre 50
Hafner 50 50
Hutfilz 50 49 50 50 50 49 50 40 40
Barror 50 49 50 49 50 49 40 40
Moore 29 46 48 46 50 40 40
Harrison 40 40 40
Giesten 12
Total 201 196 170 186 187 185 215 196 160
Respondent's records reflect the following amounts of
dollar income for labor performed in the service depart-
ment during the week ending on the date preceding the
amount:41
Week Ending Labor Income
12/04/86 1663
12/11/86 2319
12/18/86 1830
12/25/86 1366
01/01/87 1194
01/15/87 1442
01/22/87 1488
01/29/87 1787
02/05/87 1219
Dividing the number of scheduled hours into the total
labor income reveals the labor income per hour during
each of these weeks as follows:
Week Ending Dollars income per labor hour
12/04/86 8.27
38 Hozeska's schedule for the week ending December 11, 1986, is not
in evidence.
38 Dale Barror testified that the hours of many employees , including
himself, were reduced at Store 40, I am persuaded from all his testimony
this statement of Barror refers to the effect on him of Respondent's
12/11/86 (not available)
12/18/86 9.33
12/25/86 8.03
01/01/87 8.64
01/08/87 6.38
01/15/87 7.70
01/22/87 6.92
01/29/87 9.11
02/05/87 7.61
The reduction of Hozeska and the addition of Harrison
for the week ending January 22 resulted in a labor
income reduction. That the gross labor income increased
$46 for the week is insignificant when one considers that
26 extra hours were worked. The record displays no per-
suasive evidence that an additional mechanic was needed
for that work. Far more income than the $1488 generat-
ed that week had in the past been garnered by three me-
chanics, e.g., the week ending December 18, 1986, when
$1830 was taken in at a rate of $9.33 income per hour as
opposed to the $6.92 per hour the week ending January
22. Even more inexplicable than the addition of Harrison
change in method of reimbursing mechanics which took place in mid-No-
vember 1986, and is irrelevant to the reduction of Hozeska 's hours
40 Compare Reno Hilton, 282 NLRB 819, 827 (1987).
41 The labor income for the weeks ending February 12 through March
26, 1987, was 1188, 1292, 1547, 1211, 1629, 1011, and 1655 in that order
No record of the hours scheduled during these weeks is in evidence
ACTION AUTO STORES
is the use of Giesten42 for 12 hours the week ending Jan-
uary 29 when one considers K:alinowski 's testimony the
labor work in the garage was dramatically decreasing.
Hozeska was scheduled to work the first 3 days of that
week. Giesten was scheduled to work the second and
third day. Hozeska's employment actually ended the first
day of the week . It is therefore possible Giesten replaced
him for 2 days.
Respondent has not shown by a preponderance of the
credible evidence that Hozeska's hours would have been
cut in the absence of union activity . General Counsel has
therefore shown by a preponderance of the evidence that
the reduction of Hozeska 's hours was caused by Re-
spondent 's aversion to his protected union activity.43
This reduction did not, however , violate the Act as al-
leged because none of the circumstances warranting a
finding the discharge of a supervisor is an unfair labor
practice are here present.
Respondent adduced convincing evidence from several
witnesses that service writers routinely perform house-
keeping chores such as washing gas pumps and windows,
cleaning restrooms, and sweeping and mopping . The evi-
dence also shows that other employees , including store
managers and assistant managers routinely perform such
work . Kalinowski testified that Hozeska had been doing
such work for several months. On 'this point I credit Ka-
linowski. He appeared to be testifying truthfully in this
regard, and it is not likely that Hozeska, unlike his peers
and superiors , would enjoy an exemption from these
duties and had never before pei formed them . I have else-
where noted in this decision that my observation of Ho-
zeska and a survey of his testimony in terms of probabili-
ty convinced me that he was occasionally given to em-
bellishment of the facts . When he claims he never before
was assigned these duties , he was, I conclude, not being
entirely truthful, and I do not credit him.
That Hozeska did not like the cleanup work does not
make it more onerous . Moreover, the mere fact that Ka-
linowski may have done some service writing while Ho-
zeska was cleaning up is of no great significance. Ho-
zeska does not claim, and I do not conclude, that he
spent all of his shift cleaning up . From the testimony of
the various witnesses I am persuaded this work was not
of such nature or extent as to require a great deal of
time. The evidence does not show that the assignment of
cleanup duties ' to Hozeska was onerous , anything more
than a routine chore performed by practically everyone
in the above , or unlawfully motivated.
Hozeska's employment ended on January 23, 1987,
after he had been placed on suspension as a result of
questions raised , concerning a refund given to his father
in exchange for a radio Hozeska testifies was purchased
by his father at the store. According to Hozeska his
father brought a car radio at Store 40 in January 1987,
but then returned it a week later ,because it did not work.
The return date was January 17 . Hozeska says he tested
the radio , found it did not work, and wrote a return slip.
42 Spelled as it appears to be on the somewhat obscure weekly sched-
ule
43 Wright Line , 251 NLRB 1083 ( 1980), NLRB v. Transportation Man-
agement Corp , 462 U S 393 ( 1983).
893
Hozeska states his father had a receipt in hand for the
original purchase when he returned the radio , and gave
the receipt to Hozeska who wrote the transaction
number of the receipt on the return slip and returned the
receipt to his father . Hozeska says his father then took
the return slip to the cashier counter and received a
refund . Hozeska does not recall which cashier sold the
radio to his father, and testified that he saw his father
take the radio to the cashier when he purchased it, but
does not say he observed the actual sales transaction. His
father did not testify.
According to Kalinowski , he was reviewing the store
business paperwork on January 19 when he found the
refund slip, without the sales receipt attached , and with a
transaction number written thereon which was not on
the detail tapes.
In addition to the sales or refund ticket produced on a
cash register tape and given to a customer , the register
simultaneously prints a duplicate entry on another tape
(detail tape) which is retained in the machine and con-
tains all the data printed on the sales or refund ticket, in-
cluding the transaction number. The January 17 refund
tape ' has transaction number 040A # 1300. The number
written on the refund slip by Hozeska as the number of
his father 's sales receipt was '040A1936. The last four
digits in each instance, i.e., 1300 and 1936, are supposed
to indicate the actual number of the particular transac-
tion in a sequence of ascending numbered transactions.
One would therefore normally expect the 1300 transac-
tion to precede the 1936 transaction in point of time.
I credit Kahnowskt44 that the absence of a sales re-
ceipt and the presence on the refund slip of a transaction
number purportedly that of the sales transaction but not
appearing on the detail tape caused him to ask Hozeska
about the matter. Hozeska's signature was on the refund
slip, along with that of the refund -paying cashier, as the
person authorizing the refund . When Kalinowski brought
the discrepancy to Hozeska's attention,, Hozeska said he
would check with his father . That same day Kalinowski
called Hozeska's father, Charles Hozeska, and inquired
about the receipt. Charles Hozeska said he did not have
it.45 Kalinowski then called Robert Beck, Respondent's
loss prevention manager, and told him 'there was a prob-
lem with a refund involving Hozeska because it had no
register receipt attached and otherwise looked improper.
Beck seemed to be totally honest and was the most im-
pressive of the witnesses to the events in terms of cer-
tainty and candor. I credit his recitation of the facts. Im-
mediately after the call from Kalinowski , Beck went to
Store 40. After securing the refund slip from Kalinowski,
Beck met privately with Hozeska and 'asked him about
the refund. Hozeska replied he had written the refund
for his father . Beck then asked where the original sale re-
44 This testimony of Kalinowski is far more probable than Hozeska's
assertion that Kalinowski told him he had stolen the radio unless he
could prove otherwise Kalinowski is not a credible witness in all re-
spects, but neither is Hozeska , and I do not credit Hozeska that Kalin-
owski accused him of theft right off the bat. Of the two Kalinowski was
the more believable when testifying regarding the radio incident.
45 Hozeska's testimony regarding what his father and Kalinowski told
him they said to each other is hearsay entitled to little weight , but is not
materially inconsistent with Kalmowski 's credited version
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ceipt was. Hozeska said he had thought that if he had
the receipt number he need not have the receipt . He fur-
ther ventured that he thought his father would have it
and, in response to a request from Beck , said he could
probably get it from his father. Beck told him to bring it
to the store.
After meeting with Hozeska, Beck told Kalinowski to
give him a call when Hozeska brought the receipt in.
Hearing nothing from Kalinowski by January 22, Beck
called him and asked whether Hozeska had brought the
receipt in . Kalinowski said he had not . The record is
clear that Hozeska never came up with the receipt. After
his call to Kalinowski , Beck examined all the Store 40
detail tapes for the period January 1 through 18, but
found no record of the radio sale . He did find a tape
numbered 1936 for a January 18 sale of 93 cents by a dif-
ferent cashier . The letters A or B in the transaction
number identifies the cashier.
On January 23, Beck contacted David Scigliano, Re-
spondent 's vice president of store operations , asked Scig-
liano to accompany him to Store 40, and explained his
investigation to Scigliano . On the way to the store the
two decided that if Hozeska had the receipt the matter
would be closed. If, on the other hand , he admitted to a
fraudulent refund he would be terminated . As a third al-
ternative, he could be suspended pending further investi-
gation.
Upon arriving at Store 40, Beck met with Hozeska and
Kalinowski . Scigliano was not present.46 Beck went
over the refund with Hozeska . He explained what he had
done to attempt to verify the refund and asked where
Hozeska had obtained his figures from . Hozeska said he
had copied them directly off the cash register receipt
that his father had. Beck showed him the difference in
the original transaction number and the transaction
number indicated in the refund receipt. Hozeska said that
he may have copied the number down wrong. Beck
asked how , if Hozeska had copied the figures exactly
from the detail tape onto the refund slip, had he made a
mistake in the transaction number . Hozeska gave no
answer. The numbers Beck mentioned as being copied
accurately were the $79 .99 price of the radio with a $4
discount under the column "Amount" on the refund slip.
Hozeska had no explanation why there was a difference
in the number of 1936 and 1300. Beck explained that he
needed an explanation for the refund because things just
weren't jibing. Hozeska said "Well, in other words, you
are accusing me of stealing ." Beck said he was not accus-
ing him of anything , but wanted an explanation for the
refund . To this Hozeska said that the Company had been
cutting his hours , and hassling him about the Union.
Beck said he had nothing to do with hours and did not
know what Hozeska was talking about . Beck continued
that he had to suspend Hozeska. Hozeska said he under-
stood Beck 's position , but he was going to punch his
card out and quit ., Beck advised he could not tell Ho-
zeska what or what not to do, and could do nothing
about it if Hozeska decided he wanted to quit. Beck also
46 Beck, Scigliano , and Kalmowski agreed Scighano was not in the
meeting I do not credit Hozeska's claim it was Beck and Scighano who
met with him
explained that, if this was Hozeska 's decision, Beck
would have to fill out an exit interview form . Beck then
completed and Hozeska signed an exit interview report
stating "Employee has terminated his employment of his
own accord."
Respondent has clearly shown that it had sufficient
evidence to question the propriety of the refund transac-
tion , and was certainly not required to ignore the obvi-
ous discrepancy between the sales and refund numbers
on the refund slip. The failure of Hozeska 's father to tes-
tify and the failure of Sheryl Hebert , who testified on
other matters as General Counsel 's witness and was the
cashier "A" who paid the refund , to testify regarding the
purchase and/or refund leaves General Counsel's case
resting on the testimony of Pat Hozeska who I have
found is not entirely credible. Nevertheless , Respondent's
knowledge of his activity , hostility towards it, previous
reduction of his hours for unlawful reasons, and the
timing of the suspension within 2 weeks of the reduction
in hours is sufficient to prima facie indicate the suspen-
sion was motivated in part by unlawful considerations.
The evidence preponderates however in favor of a con-
clusion that Respondent had reasonable cause to investi-
gate the radio purchase and refund transactions , and had
not received satisfactory explanation of the discrepancy
above discussed when it elected to suspend Hozeska
pending further investigation . In this connection , General
Counsel 's argument that the only way Hozeska could
escape suspension was production of the receipt is rather
extreme. Further investigation , notably the evidence of
Hozeska's father and the cashier involved in the sale,
might as well , have convinced Respondent the transac-
tions were bona fide if that was indeed the case. Hozeska
elected to quit rather than remain on suspension . It is set-
tled that quitting in anticipation of discharge is not a
constructive discharge '47 and the record will not support
a conclusion discharge was inevitable, or that Respondent
was trying to force Hozeska to quit by trumping up a
pretext for suspension . I am persuaded Hozeska would
have been suspended in the absence of any union or
other protected activity , and General Counsel has not
shown by a preponderance of the evidence that Hozeska
was unlawfully suspended or terminated even if he not
be a statutory supervisor . If, as I find , he is a supervisor,
then Parker-Robb , supra, also precludes any finding the
suspension or termination was unlawful.
E. Events at Store 35
Most of the allegations of unlawful conduct at Store
35 involve the store manager, Bill Johnson . The remain-
der are laid to Michael DeShaw, the assistant manager.
Johnson was an apprehensive witness with frequent fail-
ures of recollection , and appeared to'be somewhat less
than forthright . On the other hand , DeShaw gave ready
responses , and was refreshingly straightforward in his
testimony which painted a not implausible scenario for
incidents in which he was involved . Employees Arnot
and Musolf are still employed by Respondent , and there-
fore are not likely to fabricate testimony adverse to their
4' Price 's Pic-Pac Supermarkets , 256 NLRB 742 , 749 (1981)
ACTION AUTO STORES
Employer who yet controls their employment destiny.48
Dale and Patricia Adcock are a married couple formerly
employed by Respondent when certain alleged unfair
labor practices occurred. Patricia Adcock's recollections
are not in every instance as certain as those of her hus-
band and are inconsistent with her pretrial affidavit in
some respect, but not on matters considered under this
reading. Considering the comparative demeanor and rela-
tive consistency and probability of the testimony of the
various witnesses, and the other factors mentioned
above, I find as follows.49
1. Johnson arrived as manager of Store 35 in mid-Jan-
uary 1987. A few days later he called Arnot into his
office and asked what kind of problems the mechanics
were having. Later, after some conversation regarding
this question, Johnson said he had heard about the union
business, and asked Arnot if he knew anything about the
union business, if Arnot was interested in it, and how
Arnot would vote if there were a vote. Johnson ven-
tured that he did not himself care what happened, but
wanted to know how his store stood on the issue. Then
Johnson asked how other mechanics felt about the Union
and if they were in favor of it. Johnson also said he
thought it was the mechanics seeking a union, and it was
possible for Respondent to close the garages and just sell
parts and gasoline.
When Johnson called Arnot into his office, the locus
of authority at the store, and subjected him to interroga-
tion about his sentiments regarding the Union, how he
would vote on union representation, and what the senti-
ments of other employees were, his conduct toward an
employee who has not been shown to be a publicly
active union supporter at the time clearly tended to
coerce Arnot in the exercise of Section 7 rights and indi-
vidually and collectively violated Section 8(a)(1) of the
Act. The coercive effect of the interrogation was com-
pounded, by ' Johnson's implied threat of store closure if
the mechanics continued to seek union representation.
The threat violated Section 8(a)(1).
2. Dale Adcock and Arnot agree and I find that John-
son spoke to them together about the Union. Arnot
places this some 3 or 4 days after his private conversa-
tion with Johnson detailed above. Adcock places it in
late December or early January. Inasmuch as Johnson
arrived at the store in mid-January and Arnot says the
incident took place after the Union gave the Company a
list of its supporters including him, I conclude the con-
versation probably took place in February 1987 after Re-
spondent received the Union's letter containing the
names of employee supporters, including Adcock and
Arnot, on February 17, 1987. During the conversation,
Johnson asked how the other mechanics felt about the
Union and what the sympathies of Adcock and Arnot
were. Johnson mentioned that if they closed the garage
down mechanics would not be needed. The Union's pub-
lication of the names of Adcock and Arnot and others
following the advice "The employees listed below have
authorized us to inform you that they are supporting and
active in this organizing drive" made it public knowl-
48 Unarco Industries, 197 NLRB 489, 491 (1972).
49 Testimony to the contrary is not credited
895
edge those listed were active union supporters. Under
these circumstances it would appear the general ques-
tioning of Adcock and Arnot about their union sympa-
thies in this instance, standing alone, would not violate
the Act, because the Union's February letter is equiva-
lent to the mailgram in Rossmore50 which the Board
found openly declared an employee's union ties, and
found questions directed to that'employee regarding the
Union but unaccompanied by threat or promise were not
coercive interrogation violative of the Act. It seems to
me that when an employee authorizes a union to publish
his name to his employer as a union supporter mere gen-
eral questions regarding his or her union sympathies
have no reasonable tendency to coerce. Here however
the questioning was accompanied by Johnson's hypothet-
ical reference to the results of garage closure which, in
the context of his questions, reemphasized his earlier im-
plied threat to Arnot, of garage closure in response to
union activity. Moreover, Johnson was not privileged to
ask Adcock and Arnot to reveal the sympathies of
others. Accordingly, I conclude that Johnson violated
Section 8(a)(1) of the Act by the implied threat to close
the garage and by coercively interrogating Adcock and
Arnot regarding their union sympathies and those of
others.
3. On February 5, 1987, Johnson called Patricia
Adcock into his office and asked if she knew who had
signed union cards. She said she did not. Johnson's ques-
tioning of Adcock in his office about the activities of
others violated Section 8(a)(1) of the Act. There was no
legitimate reason for this interrogation and it was part of
a pattern of unlawful interrogation by Johnson. On two
other occasions Johnson asked her and employee Dobroc
questions violative of Section 8(a)(1), The first time he
asked if they knew who had signed cards. The second
time he asked if they knew of anyone who had passed
out authorization cards in the store.
4. In early March 1987, while Patricia Adcock was
eating lunch in Johnson's office, he asked how she would
vote in the upcoming representation election. When she
told him she would vote no, which was an untrue
answer, Johnson said there would be no promotions for
anyone who belonged to the Union if it got in. Here
again Johnson violated Section 8(a)(1) by asking her how
she would vote and then following it up with an unlaw-
ful threat of reprisal for union supporters.
5. Denise Tigner testified that less than a month before
the April 9, 1987 representation election Johnson asked
how she felt about the Union and if she knew how
Arnot was going to vote. She states she replied she did
not know about Arnot and had no feeling one way or
another. Both she and Arnot were by this time publicly
known to be active union supporters. Both were named
in the Union's February letter listing its adherents.
Tigner was not a particularly convincing witness in some
respects, and I see no reason for Johnson to seek what
he should already know, but the questions she attributes
to Johnson are consistent with his general course of con-
duct vis-a-vis employee union activity, and his denials
'0 Rossmore House, 269 NLRB 1176 (1984)
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
are not convincing: In view of Tigner's status as an open
union activist, the question regarding her sentiments was
general and noncoercive. She had already authorized her
prounion status to be published. On the other hand, the
record does not convince that she and Johnson were par-
ticularly friendly and, even if they were, a specific in-
quiry regarding another's vote exceeds the permissible
limits of general questions to a known union adherent
about his or her sentiments, and violates Section 8(a)(1)
of the Act.
6. Dale Adcock reports that several times in January
and February 1987, Johnson pulled pens bearing the
Union's identification out of his [Adcock's] pocket and
said he could see by the pens Adcock had been to a
union meeting, and that if he attended store meetings like
he did union meetings he would have a better outlook
toward the Company. According to Johnson, he merely
snickered at Adcock on one occasion when he saw union
pens in his pocket. Adcock's version is credited, and I
find that Johnson's conduct and comments regarding the
pens let Adcock know Respondent "was watching him
closely and that it was acutely aware of his union organi-
zational activities,"51 as it certainly was. Johnson's con-
duct was not interrogation permitted by Rossmore, supra,
but was conduct that conveyed the impression Respond-
ent was engaged in surveillance of Adcock's union ac-
tivities in violation of Section 8(a)(1) of the Act as the
complaint alleges.
7. Dale Adcock was laid off for lack of work in
March 1987. About 4 weeks before that, Johnson asked
Adcock why he wanted a union at Action Auto and not
at another employer where Adcock was simultaneously
employed and where there was no union. Johnson's
question did not violate the Act because Adcock was
then a publicly known union activist.52
8. At some unspecified time in March 1987, Johnson
told Dale Adcock that it was not a threat and Adcock
could take it anyway he wanted, but if the Union got in
things would change and not for the good. Contrary to
Johnson's statement, he did by his comment threaten un-
specified reprisals if the employees selected the Union to
represent them, thereby coercing, restraining, and inter-
fering with Adcock in the exercise of Section 7 rights,
and violating Section 8(a)(1) of the Act.
9. No witness is certain of the exact date, but I con-
clude it was probably in early March or late February
1987 that Musolf, Arnot, and Dale Adcock were sitting
at the bar in the Fireside Lounge after work when James
Corbin and William Johnson entered, sat down at a
table, bought the three employees at the bar a beer, and
finally invited them to sit at the table, which they did.
Patricia Adcock joined them later when she got off
work. All but Patricia Adcock had several drinks of beer
and/or mixed drinks as each chose. From Johnson's ac-
count of the amount of alcohol consumed it would not
be surprising if the men assembled were to some degree
under the influence. Toward the end of this gathering,
which lasted from a little after 8 p.m. to about 11:30
p.m., Johnson, some time between 11 and 11:30 p.m.,
51 J P. Stevens & Co., 245 NLRB 198 (1979)
52 Rossmore, supra
asked the employees what problems they had concerning
their employment. After they mentioned some, Johnson
said that if they gave him their union cards he would re-
solve their problems in 30 days. Patricia Adcock asked
why he wouldn't give them what they wanted within 30
days and then they would give him their union cards.
Johnson asked why she didn't trust him. At this, they all
laughed and went to an unrelated topic. Notwithstanding
most, if not all, the participants had some alcohol under
their belt, the fact remains that Johnson did solicit griev-
ances, requested the surrender of union cards, and prom-
ised in exchange to remedy employee grievances. The
solicitation, request, and promise individually and collec-
tively violated Section 8(a)(1) of the Act.
10. Arnot testifies to an incident in February 1987
when he, Musolf, Adcock, and employee Ken Erickson
were asked by Michael DeShaw how the Union was
coming along, and how they would vote. DeShaw alleg-
edly added that he was told at a managers' meeting to
ask these questions and see what he could find out.
Denise Tigner says DeShaw had substantially the same
conversation with her in February or March. She adds
that DeShaw said the stores would be closed if the
Union was brought in.
Neither Adcock nor Musolf, although testifying on
other matters, testify regarding the February incident re-
ferred to by Arnot. DeShaw recalls asking Musolf in late
February or early March what he thought of the union
process. He got no answer. Given Musolf's status as a
publicly known union activist, I find DeShaw's question
did not violate the Act. Rossmore, supra. DeShaw other-
wise denies the statements attributed to him by Arnot
and Tigner, but says that he did, in a conversation with
Arnot regarding the possibility of a strike and its conse-
quences, say maybe the garage would have to be closed
for lack of qualified employees to do the work if there
was a strike, and that was the only time he mentioned
garage closure. According to Tigner she remembers
hearing DeShaw say something to Arnot about closing
the garages.
It is a close question, but I conclude, given the similar-
ity of the reported statements of DeShaw to Arnot and
other and to Tigner at a different time, that DeShaw did
ask the employees how they would vote, and told them
he had been directed to so ask. All the employees, except
Erickson, to whom he posed this question and statement
were named as union adherents in the Union's February
letter to the Employer. I find the question to Tigner vio-
lated the Act because the express question and accompa-
nying statement DeShaw was instructed to so ask ex-
ceeds the bounds of casual questioning of a known union
adherent, but I do not credit her testimony that DeShaw
accompanied the question with a threat of garage clo-
sure. The same question posted to the group of men also
violated Section 8(a)(1) for the same reason,, and also be-
cause there is no probative evidence Erickson was an
open and active unionist and the question was coercive
interrogation as to him.
11. With respect to Arnot's recollection that DeShaw
talked to him, Dale Adcock, and Tigner about a week or
two after DeShaw's discussion with Arnot, Musolf,
ACTION AUTO STORES 897
Erickson, and Dale Adcock described above, I believe
he refers to the conversation that Tigner says she over-
heard in part between Arnot and DeShaw. Dale Adcock
did not testify regarding this conversation I conclude
this was the conversation DeShaw recalls wherein he
mentioned the possible need to close the garage if the
mechanics went on strike. DeShaw and Arnot both im-
pressed me as honest men carefully trying to recall
events long since past. I believe DeShaw probably did,
as Arnot states, on this occasion ask how the Union was
progressing, and who was in favor of it and how they
would vote. Here DeShaw, by inquiring into the sympa-
thies of persons not shown to be open and active union
supporters, went beyond the bounds of Rossmore and
violated Section 8(a)(1) of the Act. On the other hand,
DeShaw's recitation that he posed the possibility of a
garage shutdown caused by the absence of striking me-
chanics and noted that management could run the store
in the case of a strike is consistent with Arnot's recollec-
tion that DeShaw said the garage could be shut down
and the store could be run by the management crew. De-
Shaw's comments as related by Arnot are statements of
possibilities available in the event of a strike, and I am
persuaded DeShaw's version is the more accurate and
did not violate the Act.
12. DeShaw was a superior witness to Tigner in terms
of demeanor and consistency of testimony, and I credit
his testimony the subject of garage closure was only dis-
cussed by him the one time with Arnot. Accordingly,
Tigner's testimony that DeShaw made a threat of plant
closure in her presence on another occasion is not cred-
ited.
F. The Treatment of Mark Henry at Flint Store 2
Mark Henry began working for Respondent as a me-
chanic on September 3, 1985. At the time of the events
with which this discussion is concerned Henry was em-
ployed at Store 2 in Flint, Michigan , rather than in the
Saginaw area. His superiors at Store 2 were Store Man-
ager Dennis Wilks and Service Writer Richard Kim-
mery, both alleged and admitted supervisors , and agents
of Respondent.
Henry was present at the mechanics ' meeting with
management at Store 1A on November 19, 1986 . In addi-
tion to the other happenings at that meeting previously
discussed , Henry asked who the "house mechanic" was.
This had reference to Respondent 's practice of writing
that term on work orders mechanics forgot or neglected
to sign, with the result that the mechanic performing the
work was not paid for it. Henry had experienced this
result on occasions when he had failed to sign a work
order. Henry testified that, after Wilks explained what
"house mechanic" meant, Richard Sabo directed that
work orders be left for 24 hours until the end of the next
shift to assure that mechanics could make certain they
had properly signed them . This testimony of Henry is in-
consistent with his pretrial affidavit given to a Board
agent wherein Henry asserted that Jim Sabo ordered
managers to make the work orders available to the me-
chanics for signature each day before they left work so
"that they could be sure they were signed, so they
would get the proper pay." James Sabo was a particular-
ly impressive witness, and he credibly testified, consistent
with Richard Sabo's recollection, that Richard Sabo told
Henry work orders should be signed at completion of
the job and no later than the end of the shift and regula-
tions of the State of Michigan required the signing of
work orders on completion of the job. Henry's pretrial
statement is consistent with and lends support to Sabo's
version which is credited. Henry's revised version at the
hearing is not credited.
On November 20, 1986, Dennis Wilks told Henry to
be sure and sign work orders.53 Wilks added that Henry
should not have raised the subject of the "house mechan-
ic" at the meeting because it made Wilks, Kimmery, and
the store look bad. Then Wilks said he did not know
what Henry was being told at union meetings but "you
guys" had better get their union, and he was sick of all
the "union bullshit." I find Wilks was referring to the
UAW when he said "union."
On December 2, 1986, Henry signed an authorization
card for Local 876. On December 3 or 4, he gave union
authorization cards to three employees at Store lA while
he was there picking up parts. Within an hour he re-
turned to Store 2. At about the same time, or shortly
after Henry's return, Wilks told Kimmery that Henry
was passing union cards out at Store IA. According to
Kimmery, when Henry returned to Store 2 he asked
Henry why he had been gone so long, and chastised him
because a customer was waiting for her car which re-
quired a part Henry had gone for. Kimmery denies any
discussion of the Union took place. According to Henry,
Kimmery told him the day following his trip to Store
1A54 that he would not be going there many more times
to get parts because Kimmery knew he had passed out
union cards at Store' 1A the day before, and he had
better "cut this bullshit out" or it was going to get him
in a lot of trouble.55 Kimmery denies making the state-
ments attributed to him by Henry. I credit Henry. Re-
spondent's hostility toward Henry's union activity ex-
pressed by Wilks, Kimmery's superior, and Kimmery's
knowledge that Henry had passed out union cards, makes
it more probable than not that 1Kimmery also expressed
his displeasure with such conduct. Kimmery by his con-
duct did, as the complaint alleges,56 create an impression
of surveillance of employee activities in violation of Sec-
tion 8(a)(1) of the Act by telling Henry he knew of his
card passing, and further violated Section 8(a)(1) by im-
pliedly threatening him with unspecified reprisals if he
continued with his union activity.
On December 6, 1986, Henry removed his safety glass-
es while dismantling an exhaust system on a car, raised
on a hoist. A piece of rust fell in his eye necessitating an
immediate visit to a physician. He was accompanied to
ss Wilks is no longer an employee and did not testify, I have therefore
credited Henry's testimony relating to one-on-one conversations he had
with Wtlks
541 am persuaded the two are discussing the same confrontation.
Whichever date is accurate is irrelevant
ss Henry reports that Kimmery emphasized his message with obscene
nouns and adjectives including the F word
ss The complaint alleges this conduct occurred on or about November
22, 1986, That it in fact occurred on December 3 or 4 is an insubstantial
variance See, e.g, Interstate Material Corp., 290 NLRB 362 (1988)
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the clinic by Thomas Seymour, a fellow employee.
Henry testified that he was asked by Wilks to sign a dis-
ciplinary warning notice for not wearing safety goggles
while doing exhaust work. Seymour, who is still an em-
ployee of Respondent, and Kimmery recall that Henry
was asked to sign after he returned from the clinic that
day. It makes little difference to this decision whether
the request was before or after the clinic visit, but I be-
lieve it more likely to have occurred after Henry's
return. It is difficult to believe that Wilks was busily pre-
paring a warning during the brief interval between injury
and going to the clinic when he and other management
personnel were among those attempting unsuccessfully to
wash the rust from Henry's eye. When Wilks asked
Henry to sign the warning Seymour advised him not to.
Henry did sign and requested a copy. Seymour chimed
in that Wilks should make a copy for Henry. This roused
Wilks to declare that it was none of Seymour's business
and the Union was filling their heads with bullshit.
Wilks' comments are neither alleged nor found to be vio-
lations of the Act, but they clearly display antiunion hos-
tility by Respondent's agent and thus Respondent. Wilks'
comments were made after the decision to issue the
warning, were in reaction to Seymour's advice and
Henry's request, and do not prove the warning was dis-
criminatorily motivated. The warning, dated December
6, 1986, relates "not wearing safety [sic] equipment" as
the infraction, and further details Henry "was doing ex-
haust work wasn't wearing safety [sic] goggles." I do not
believe the evidence in favor of General Counsel's con-
tention this warning was discriminatorily motivated pre-
ponderates: Henry was wearing the safety glasses when
he commenced work on the exhaust, thus illustrating
there was some hazard involved. When Henry took off
the glasses before the rusty exhaust pipe overhead was
removed from the automobile he was exposing himself to
the type of injury that resulted from the falling rust. This
is exposure to injury in the workplace that it is in an em-
ployer's interest to prevent, and, in my view, warrants a
warning. I further conclude that such a warning would
very probably have been issued absent any union pres-
ence or activity. This is one of those situations where an
employer, even though it may be diligently seeking an
excuse to retaliate against an employee because he sup-
ports a union, is presented with a bona fide reason to dis-
cipline which it would have exercised absent the employ-
ees' union sympathies.57 For these reasons I am persuad-
ed this December 6 warning did not violate the Act.
Two other warnings dated December 6 and 11, 1986,
respectively are an entirely different matter. The first is a
warning for not signing a work order and complying
with state law on December 5. The second is for not
signing a work order on December 10. Both warnings
are signed by Wilks and Kimmery. Both were written by
Kimmery,58 but presented to Henry by Wilks when
57 See, e g , Stoutco, Inc , 218 NLRB 645, 651 (1975); Klate Holt Co ,
161 NLRB 1606, 1612 (1966), P. G. Berland Paint City, Inc, 199 NLRB
927 (1972)
58 Here again the complaint allegations of on or about November 30
and December 6, 1986, are sufficient to cover the conduct alleged Omico
Plastics, 184 NLRB 767, 770 (1970)
Henry reported for work on December 11. There is no
explanation why the December 6 warning was not earli-
er delivered. Neither is there any evidence that others
were or were not warned for the same infraction. The
record therefore does not permit a conclusion Henry was
treated differently from or the same as others similarly
situated. Respondent seems to be arguing in its posttrial
brief that Richard Sabo's pronouncement at the Novem-
ber 19 meeting concerning the signing of work orders is
a new rule which Henry violated. This contention is not
at all convincing. Sabo established no new rule. He
merely stated what the rule was and had been. It would
appear that this "rule" had been honored in the breach in
the past. Henry had clearly failed to sign work orders in
the past. This was why he lost money to the "house me-
chanic." He was never disciplined in the past for failure
to sign work orders so far as this record shows, and I do
not believe the "house mechanic" was invented solely to
take care of Henry's omissions. To the contrary, it is an
inescapable conclusion that other mechanics had fallen
prey to the "house mechanic" by virtue of their failures
to sign work orders, but there is no evidence anyone but
Henry was ever warned for a failure to sign a work
order.
General Counsel has established by a preponderance of
the evidence that these two warnings were fueled by op-
position to union activity and therefore violated the Act.
Knowledge and hostility are clearly present. The timing
of the delivery of these warnings only 7 or 8 days after
Kimmery threatened Henry with retaliation for his union
activity and only 5 days after Wilks again expressed his
displeasure with Henry's involvement with the Union are
sufficient along with the knowledge and other evidence
of antiunion animus to establish a prima facie case the
Act has been violated by the issuance of the warnings.
The burden therefore shifts to Respondent to prove by a
preponderance of the evidence Henry would have been
so disciplined in the absence of union activity.59 Re-
spondent has not carried that burden. The attempt to
make a new rule out of an old rule, and the attempt to
explain the warnings as an application of that rule when
no such warnings were issued to Henry in the past for
similar infractions ring hollow. Moreover, Respondent
had previously utilized the "house mechanic" with no
apparent concern for its "rule" or the strictures of Michi-
gan statutes. This is not to say that the use, of the "house
mechanic" in lieu of the actual mechanic's signature is
desirable, or even legal under Michigan statutes. It does
however indicate Respondent now, for reasons not clear-
ly or persuasively articulated by the evidence, is bestow-
ing penalties on Henry for violations it previously ig-
nored. The evidence is such that the balance must tip in
favor of General Counsel's allegation of warnings, de-
signed to discourage union membership and activity in
violation of Section 8(a)(3) and (1) of the Act.
Henry relates, and Kimmery denies, that when Henry
came to work on December 30, 1986, Kimmery greeted
him with a warning that he was in a bad mood and did
not want any of Henry's union bullshit that day. This is
59 Wright Line, supra
ACTION AUTO STORES
consistent with Kimmery 's statements to Henry on De-
cember 3 or 4, and Henry's testimony on the matter is
credited.
Later that day Henry was discharged by Kimmery
after a series of events beginning with his assignment to
perform repairs on a Buick automobile . While he was so
engaged , one Grant Herron,66 who is , not an employee
or relative of Henry but is his acquaintance , entered the
garage and asked him to inspect some tires . Respondent's
policy permits the inspection , but not repair , of tires
without a work order. Henry determined the tires were
not repairable . He and Herron then began discussing the
price and quality of replacement tires sold by Respond-
ent. While Henry was so engaged , the Buick owner com-
plained to Service Writer Kimmery and Assistant Serv-
ice Writer John Watts that Henry was not working on
her , ear . 61 Kimmery instructed Watts to tell Henry to
return to work on the Buick.
Henry testified that Watts came to him and Herron as
they were discussing the price and quality of replace-
ment tires sold by Respondent , and told him Kimmery
had said Henry "should go back to work on the Buick or
get the f out." Henry says this so upset him that
he threw down and broke a bottle of soapy water used
to test tires for,, leaks, and said "f that," after
which he went back to work on the Buick . Henry's
claim that he was discussing price and quality with
Herron fairly implies that his tire inspection was com-
plete and had resulted in a conclusion replacement tires
were needed.
According to Watts, he never cursed at Henry, which
does not answer Henry's testimony that Watts told him
Kimmery had said Henry "should get the f out if
he did not return to work ." I therefore credit Henry that
Watts so told him. Watts further testified that after he
told Henry to return to the Buick he turned and saw
Henry working on Herron 's tires, and , when he saw that,
he again went and told Henry that Kimmery had said to
tell him to go back to work on the Buick.62 Whereupon,
says Watts, Henry threw down and broke the bottle of
water, and told Watts to tell Kimmery, "f you, I
will get back to the car when I'm done working on the
tires." Watts says he reported this to Kimmery.
Kimmery agrees that he told Watts to tell Henry to
return to work on the Buick . He also saw Henry break
the bottle, and relates that Watts reported to him that
Henry had said he (Kimmery ) should "go f him-
self" and Henry would go back to the Buick when he
finished examining the tires . At this, says Kimmery, he
went to Henry and asked him to return to work on the
Buick, , and Henry replied he would when he finished in-
specting the tires . Kimmery says he then asked if Henry
had , a work order for the tires . Henry said he did not and
was not working on the tires. According to Kimmery, he
then again told Henry to return to, the Buick and again
was told by Henry he would when he completed in-
60 Herron did not testify.
61 The customer was not called to testify
62 Neither Kimmery nor Henry support Watts ' claim he talked to
Henry twice , and I find he did not, but had bifurcated one meeting with
Henry into two
899
specting the tires . Kimmery credibly testified that Henry
called him an "asshole" during this conversation.
Kimmery and Watts testify, and Henry denies, that
Henry had gone beyond inspection to "breaking down"
the tires which requires a work order . It is unlikely that
Henry would commence work on unrepairable tires, or
that he would commence work at all without a work
order and thus without pay. I am persuaded Henry had
not gone beyond inspecting the tires when Watts ap-
proached him. This conclusion is supported by the writ-
ten discharge notice prepared by Kimmery and Watts
which details that Henry was inspecting a tire and re-
turned to the customers ' car after he threw the bottle
down.
Henry testified that Kimmery came to him and asked
why he did not jump on Kimmery like he had on Watts.
To which Henry retorted he did not jump on Watts, but
just told him how he felt. Henry says he added that he
was tired of them harassing him and threatening his job,
which drew the response from Kimmery that Henry
should get the "f out" if he did not like the way
things were going. Kimmery denies the above statements
attributed to him by Henry, I credit Henry 's version,
noting the message of Kimmery is like that earlier deliv-
ered by Watts.
After Kimmery had returned to the store area, and
Henry had completed the Buick repair, Kimmery sum-
moned Henry to the store office, handed him a written
warning notice'63 and told him to sign it and get out.
The notice reads, in relevant part, as follows:
RULE(S) VIOLATED
unprofessional attitude, not working on vehicle
given to him , Doing tires with no work order. in-
subordination
DETAILS OF ABOVE
John went to tell Mark to return to working on
customers vehicle while he was inspecting a tire for
a person who brought a tire in but did not have a
work order written up on . Mark threw a bottle of
soapy water down and told John to tell Rick "Fuck
you Rick." Mark then returned to customers car,
while Mark's cousin (the person with the tires)
began to argue.
IMMEDIATE SATISFACTORY IMPROVE-
MENT MUST BE SHOWN OF FURTHER DIS-
CIPLINARY ACTION WILL BE TAKEN, IN-
CLUDING POSSIBLE SUSPENSION FROM
DUTY OR DISCHARGE.
12-30-86
WARNED-With Rick Kimmery using foul and
abusive language.
SUSPENDED-Rick then told customer to take
his tires and leave the garageX
DISCHARGED
ss The document is titled "Disciplinary Warning Notice and Action
Taken "
J
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Henry refused to sign the notice and disputed Kimmery's
authority to fire him. A telephone conversation between
Henry and District Manager Zynda then ensued, with
Zynda telling Henry to follow Kimmery's instructions.
According to Henry, as he left the store Kimmery told
him he could call the NAACP, the Union, some other
group whose identity Henry does not recall, or anyone
he wanted to but he was fired. I credit this testimony
over Kimmery's bare denials, but Kimmery and Watts
credibly testified that upon discharge Henry told Kim-
mery either to "go f himself' or "f you."
There was nothing unusual in Kimmery responding to
the customer's complaint by instructing Watts to tell
Henry to return to work on the Buick, but the alterna-
tive given Henry was provocatively phrased. Henry's
claim that Watts told him Kimmery said to "return to
work or get the f out" is not squarely denied by
Watts and has been credited. I further find however that
the testimony of Watts regarding Henry's response to
this instruction is worthy of credit. Watts impressed me
as a rather timid, mild-mannered person not likely to
invent or enhance the message he carried or the one he
quotes from Henry who, as his conduct in angrily break-
ing the bottle and cursing of Kimmery on discharge
demonstrates, is given to more emotional outbursts. Kim-
mery's recollection of Henry's comments as reported to
him by Watts differs slightly from Watts' version, but my
observation of Watts as he testified convinced me he was
carefully trying to be accurate. On the whole Watts was
a more impressive witness in terms of demeanor than
either Kimmery or Henry. Moreover, Henry's assertion
that he said "f that" as he threw the bottle down
is not very convincing. He was responding in anger to
an order from Kimmery, whose authority he did not re-
spect, and it is more probable in the circumstances that
Henry's angry remarks were for Kimmery's consumption
rather than a momentary exasperated explosion directed
at the general situation. For the foregoing reasons,
Watts' version of Henry's comments is credited. In any
event, what Henry says he said, what Watts says Henry
said, and what Kimmery says Watts told him Henry said
might arguably be construed as insubordination, but, as
noted in the Hafner incident, vulgarity between employ-
ees and supervisors is not uncommon. Respondent has
maintained a rule in its employee handbook providing
for immediate discharge for insubordination since before
the union activity here at issue took place.
After considering the statements of the witnesses, Re-
spondent's written rules, the surrounding circumstances,
and the probabilities, I conclude that General Counsel
has shown by a preponderance of the credible evidence
that Henry was unlawfully discharged. Respondent knew
Henry was an active proponent of the Union and had
previously committed unfair labor practices, including a
threat of retaliation against him for that reason. It is ob-
vious from Kimmery's greeting to Henry when he came
to work on December 30 that Kimmery's opposition to
the union campaign and Henry's participation therein
had not lessened. Henry's response to the message deliv-
ered by Watts was clearly provoked by the adjuration to
get to work or "get the f out." There was no
good reason shown for such a harsh message, and I be-
lieve it was a result of Kimmery's resentment of Henry's
union activity which caused Kimmery to grasp the op-
portunity to remind Henry his job was not secure. Henry
was performing his duties consistent with Respondent's
policy when he paused to inspect Herron's tires. The
foregoing factors, particularly the December 3 or 4
threat by Kimmery and the unlawful warnings of De-
cember 11, both shortly before Henry's discharge, show
protected activity by Henry, knowledge thereof, hostility
thereto, and previous unfair labor practices against
Henry less than 3 weeks before his discharge, which col-
lectively suffice to establish a prima facie showing Henry
was discharged in violation of the Act. Respondent has
not shown Henry would have been fired had he not been
involved in protected concerted activity. The factors on
which Respondent relies will not withstand close scruti-
ny. Henry's remarks were provoked by Watts' message
which Kimmery did not disavow. There is evidence pro-
fanity was widely used in the shop, and no evidence of
discipline therefor. Respondent has not shown Henry
performed any work on Herron's tires requiring a work
order, and the evidence, including Respondent's own
warning notice, shows Henry did return to work on the
Buick as directed, regardless of his stated intention. The
entire dispute arose because Respondent's agents (Watts
was an agent of Kimmery for the purpose of delivering
the message to Henry) in the course of a legitimate in-
struction saw fit to inject an uncalled for obscene ultima-
tum reasonably calculated to generate an angry response,
which it did. Respondent cannot rely on matters it delib-
erately provoked as a defense, and its other reasons set
forth in its written notice are groundless. Accordingly,
Respondent has not rebutted General Counsel's prima
facie case, and I find the discharge of Henry violated
Section 8(a)(3) and (1) of the Act.64
G. Store 19
1. Paragraph 9(a) of the complaint is based on the tes-
timony of James Reigler that Scigliano and Corbin con-
fronted him at Store 19 in September 1986, Corbin in-
structed him not to talk about the Union there, and Scig-
liano advised the Union would not get in, Reigler should
not talk about it on company time, and he would be fired
if he did. Reigler was the least believable witness appear-
ing before me. His demeanor was one of arrogance. He
fenced with counsel, smugly announced he was not a
calendar when pressed for dates, attempted to avoid
direct answers on cross-examination, had what seemed to
be convenient losses of memory and shifts of recollec-
tion, and in sum, impressed me as one whose testimony
should be treated with extreme caution if utilized at all.
In addition to his demeanor deficiencies, his testimony
has no support from other more reliable evidence, and
posits a highly improbable situation of antiunion activity
before any such activity was known to exist. Reigler's
evidence would be difficult to credit if not denied, but it
was. I credit the denials of Scigliano and Corbin in this
instance. The allegation of paragraph 9(a) of the com-
plaint that Scigliano and Corbin, in September 1986, pro-
64 Compare Vought Corp., 273 NLRB 1290 (1984)
ACTION AUTO STORES
mulgated an overly broad no-solicitation rule and threat-
ened discharge of those talking about union is dismissed.
2. Mechanic Kevin Taylor signed a UFCW authoriza-
tion card on December 18, 1986. Either on that date or
within a few days thereafter he attended a union meet-
ing. After the meeting he repaired to the store and solic-
ited the cashier to sign a union authorization card. This
was in the presence of Don Alexander, a night supervi-
sor, who reported it the next day to District Manager
Corbin whose office was in the store . Neither Alexander
nor the cashier testified in support of the Respondent's
understanding Alexander was present during the card so-
licitation . Accordingly , I conclude the hearsay evidence
to that effect proffered by Respondent does not warrant
a conclusion Taylor was then an open and active union-
ist as contemplated in Rossmore , supra. Corbin reported
Alexander's information to Vice President Scighano and
Personnel Director King.
On December 23, 1986, District Manager Roger Hill
met privately with Kevin Taylor in the manager's office
at Store 19. Hill knew Taylor had gone to union meet-
ings and was soliciting union authorizations . Hill testifies
that he had been told by Store Manager Jezak that
Taylor was dissatisfied with the new program. I con-
clude the program referred to is the November 14
changes in methods of remuneration and other matters.
Hill and Taylor agree that they were friends, and it does
not appear the conversation was confrontational. I do
not believe however that this private meeting would
have been held on December 23 had it not been for the
report of Taylor's union activities by Alexander. Re-
spondent knew employees were dissatisfied with the new
program and had been for over a month, but now
UFCW activity had commenced in Saginaw and Re-
spondent concedes it became aware of it by December
18 or 19. Putting this together with Scigliano's stated po-
sition on unions delivered to Taylor the following day,
December 24, I conclude the real precipitating factor for
the December 23 meeting was Taylor's overt union ac-
tivity, not because he was dissatisfied with the new pro-
gram as Hill indicates, and that it was conducted by Hill
because he and Taylor were friendly. Taylor was a be-
lievable witness whose testimony is credited where it dif-
fers from that of Hill.
Hill advised Taylor the Company knew about a Sagi-
naw union meeting . He asked if Taylor had attended,
what was said there, and if Taylor had signed a union
card . Taylor admitted attending the meeting , but refused
to report what there happened or whether he had signed
a card . When Hill asked why Taylor wanted the Union,
Taylor enumerated his grievances. Hill told Taylor he
was going to report to his superiors , and asked what
Taylor wanted him to report regarding his union activi-
ty. Taylor told Hill to report whatever he wanted to.
Hill asked if Taylor wanted Scigliano to talk to him
about his complaints about the program . Taylor ex-
pressed doubt Scigliano would do that. Hill said he
would check with Scigliano. During this conversation,
Hill told Taylor that Respondent thought they could get
problems solved without third party involvement, and
would do whatever they possibly could to keep the
Union 'Out.
901
The evidence persuades me that the purpose of the
Hill meeting with Taylor was to ascertain the depth of
his union sympathies and whether he could be dissuaded
therefrom. Hill's questions regarding the union meeting
and Taylor's involvement were impermissible interroga-
tion conjoined with a statement Respondent did not want
a third party involved and would do whatever they pos-
sibly could to keep the Union out. I do not believe Hill
had any intention of threatening Taylor, but I conclude
he did so, although perhaps inadvertently, because the
statement Respondent would do whatever it possibly
could to keep a union out is ambiguous in that it does
not differentiate between lawful and unlawful means.
Such a statement, without further explanation, reason-
ably conveys to an employee aware of company hostility
to unions, as Taylor was, that the company might well
retaliate against its employees who support a union. This
is ample in my view to constitute an unlawful threat. Ac-
cordingly, I conclude and find Respondent, by its Agent
Hill, violated Section 8(a)(1) of the Act by coercively in-
terrogating an employee and threatening him with un-
specified reprisals for engaging in statutorily protected
union activity.
3. That Respondent was unusually concerned about
Taylor's attitude is made even more evident by the fact
four managerial employees, Scighano, Hill, Corbin, and
Jezak, hastened to meet with Taylor the very next day,
Christmas Eve. I do not believe or credit Scigliano's ex-
planation that they met on December 24 because Taylor
requested it or because Taylor was unhappy with the
November 14 program. It flies in the face of common
sense that the concerns of one mechanic practically iden-
tical to those previously voiced by others and dealt with
by management would by themselves cause four manage-
ment officials to gather on short notice to, interview that
employee when that employee was, as Taylor was,
merely one of the many complainers about the changes
and was not insisting on a meeting instanter, much less
on Christmas Eve. I find that it was Taylor's union ac-
tivity that caused the meeting, not his employment com-
plaints which could just as easily have been summarily
dealt with at a later date as were those brought by em-
ployees soon after the November changes.
Scigliano told Taylor that Respondent knew there had
been a union meeting in Saginaw, and had good informa-
tion Taylor had attended it and was active on behalf of
the Union. He also said Respondent did not want a
union, did not need it, and would do whatever they le-
gally could to keep the Union out.65 Scigliano asked
Taylor his reasons for wanting a union, and told him all
a union would do is cause trouble and the dues required
would be equivalent to a cut in pay. When four members
of management meet privately with an employee, tell
him they know he is involved in union activity to which
Respondent is opposed, and advise him the Union will
cause trouble, that employee must inevitably be in a de-
65 Scighano's testimony that he said Respondent would do what they
could do to keep the Union out within the parameters of the law is more
probable and credited over Taylor's memory that Scighano said Re-
spondent would do everything in their power to keep the Union out,
which is ambiguous and could imply unlawful as well as unlawful means
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fensive posture with those who control his livelihood ef-
fectively expressing Respondent 's displeasure with union
activity which they know he is involved with . Taylor
was in just such a position when he was interrogated
about his reasons for wanting a union. In these circum-
stances that interrogation was coercive and violated Sec-
tion 8(a)(1) of the Act.
4. Taylor credibly reports that Store Manager Jezak
approached him in late February or early March 1987,
asked if he knew how the election might come out or
what was going on, and followed this with an inquiry as
to whether Taylor knew the reasons new employees
might want a union. After that , Jezak asked him a couple
of times during the succeeding weeks how Taylor felt
the election would come out. With respect to these in-
quiries which were general in nature I conclude no un-
lawful interrogation occurred because all of these inci-
dents took place after the Union's February 13 letter to
Respondent , received February 17, announcing Taylor
was one of those authorizing the Union to advise Re-
spondent they were active in the union campaign. Ross-
more, supra.
5. Calvin Eaton , maintenance man, was also an em-
ployee named by the Union in its February 1987 letter to
Respondent . Harold Mulders has been a supervisor of
construction and maintenance since December 6, 1986.
When he testified before me, Eaton was working under
Mulders' supervision . In comparing their testimony I
have assigned weight to the fact Eaton is not likely to
deliberately concoct false testimony against the man who
currently supervises him,66 nor is it probable that he de-
vised all the detailed testimony he gave. I have kept
these factors in mind in evaluating his testimony in other
circumstances.
Eaton had encountered some difficulty in securing re-
imbursement from Action Auto for gasoline expenses. In
early March 1987 , he and Mulders were discussing this
problem . Mulders asked if Eaton thought the Union
would help him get his gas money. Eaton said he had
nothing to lose. This is not unlawful interrogation be-
cause it occurred after the receipt of the Union 's Febru-
ary letter and neither promises nor threatens anything.
Rossmore, supra.
6. Eaton says Mulders told him a couple of times in
March or April the Union was no good and that if it got
in Eaton 's wages would be frozen and Mulders would be
unable to get him a raise . Mulders says he advised Eaton
that during bargaining wages would be frozen and there
would be no unilateral changes. I credit Eaton . Mulders'
opinion the Union is no good is not unlawful, but his
statement he would be unable to get Eaton a raise if the
Union got in fairly implied that he would otherwise be
able to so do, and conveyed the erroneous idea that if
the Union got in Respondent could not proceed with
wage increases as it had done in the past. A wage in-
crease in the normal course would not be a unilateral
change of the established wage structure but a continu-
ation of past practice required of an employer until such
time as it may be supplanted by a different policy negoti-
ated between a successful union and that employer.
66 Unarco Industries, supra
Mulders' statement both conditioned a future wage raise
on the failure of union organization and threatened the
withholding of a wage raise if the Union were successful,
and therefore violated Section 8(a)(1) ofthe Act.67
7. During the same time period , while Eaton was
riding to work with Mulders at the Respondent's
Owosso location and after the Union's February letter
was received , Mulders suggested Eaton withdraw his
name from the list and said Eaton would be better off if
he did because it was going to cause him grief. Eaton
was under no obligation to carefully inquire what
Mulders meant by this statement , which I find violated
Section 8(a)(1) of the Act because it implied that if
Eaton's name remained on the list as a union supporter
he would suffer unspecified reprisals.
8. There were three trips to Owosso in late March or
early April 1987 by Eaton and Mulders. During one of
them , Mulders instructed Eaton he was not to discuss the
Union with Owosso employees . This is far too broad a
prohibition and plainly violates Section 8 (a)(1) of the Act
as an unlawful restriction on union activity.
9. Mulders asked Eaton in April 1987, while at Store
19, if he knew how the mechanics would vote. Eaton
said he didn't know . Mulders explained to him that inas-
much as Eaton was in maintenance and thus a minority
(there were only two maintenance men working for
Mulders) what the mechanics wanted would control if
the Union got in. This explanation does not, as General
Counsel contends , imply the mechanics were not behind
Eaton in his support for the Union , or violate the Act.
On the other hand the questioning of Eaton regarding
how others would vote is not permissible interrogation
of an open union activist regarding his union sympathies,
and violates Section 8(a)(1).
10. During the first or second week of April 1987,
Store Manager Jezak asked Eaton how he was going to
vote, accompanying the question with the comment he
was sick and tired of all the union stuff and couldn't wait
until it was over . When Eaton told Jezak that his vote
was his business and it would not be a secret ballot if he
told Jezak, both laughed . This does not appear to be a
confrontational situation, and the questioning regarding
Eaton's vote was not accompanied by threat or promise
and was not likely to coerce Eaton in view of his willing
status as an openly announced union activist.
H. Store 20
1. According to Calvin Eaton, or about the first day of
March 1987 he was sweeping, mopping, and buffing the
floor at Store 20 when William Johnson , store manager,
told him that he heard Eaton was a union man and a
troublemaker, asked where union meetings were held,
how many employees were there , and how serious did
Eaton think employees at the meeting were. Eaton as-
serts that Johnson also told him the Union was no good,
would bring nothing but trouble, and would shut the
place down thus putting Eaton out of a job . Eaton's tes-
timony regarding these happenings is credited over John-
67 Premier Maintenance , 282 NLRB 10 ( 1986), Blackstone Co, 258
NLRB 945, 948 (1981)
ACTION AUTO STORES 903
son's denials.68 Here Johnson's characterization of Eaton
as a troublemaker and his persistent questioning of Eaton
over a period of more than 2 hours while Eaton was
working amounted to coercive harassment in the course
of which Johnson deliberately raised the spectre of a
business shutdown and Eaton's loss of his job caused by
the Union's presence. In these circumstances, I find that,
notwithstanding Eaton's status as an open union support-
er, Johnson violated Section 8(a)(1) of the Act by coer-
cively interrogating Eaton about employee union activi-
ties, and by threatening a business shutdown and job loss
because of the Union's presence.
2. After Eaton arrived at Store 20 to buff floors a
week or so before the election, Store Manager Wuj-
kowski69 approached him and said he was a troublemak-
er and that Wujkowski had heard Eaton had been in
some trouble. Wujkowski asked Eaton why he thought
he had been sent to work in Flint, and volunteered
"they" did not want Eaton around the Saginaw stores
talking to anyone. He continued that Eaton was on the
wrong side of the Company, the Sabos took care of
those they liked but Eaton was not well liked, and the
Sabos would 'close the doors before they would let the
Union in.70 There is no allegation, and I do not find that
Eaton's assignment to work in Flint violated the Act, but
Wujkowski's intimation that might in fact have been the
case, combined with his characterization of Eaton as a
troublemaker on the wrong side of the Company? t and
not well liked by the Sabos, created an extremely coer-
cive atmosphere which made his prediction of plant clo-
sure to avoid unionization even more ominous. Wuj-
kowski violated Section 8(a)(1) of the Act (1) by his
advice Eaton's assignment to Flint was retaliation for his
union support; (2) by his'implied threat the Sabos would
not accord Eaton the same treatment accorded others be-
cause he was, a union supporter; and (3) by threatening
closure to avoid the Union.
1. Conduct of Store Manager Donald Lawson
at Store 43
Unlike other witnesses whose testimony I have com-
pared with that of Calvin Eaton, Lawson was-most im-
pressive. He was open, quick to respond without any
hesitation, and a generally believable witness. There is
little to choose between the two in terms of demeanor,
but weighing the interest of Lawson, the accused, against
that of Eaton, the still employed accuser, and the denials
of Lawson against the detailed and believable testimony
of Eaton, who, did not impress me as given to invention,
I am persuaded that Eaton's recitation of Lawson's con-
duct should be credited. Accordingly, I conclude, as
Eaton testified, that Lawson called Eaton into his office
on one occasion in early April 1987 and told him the
Union was no good, was going to cause Eaton a lot of
trouble, and all that would happen in the long run is a
68 Although I credit the substance of Eaton's testimony, I find the
events recited took place in January 1987 when Johnson was at Store 20
69 Wujkowski arrived as manager sometime after Johnson left Store 20.
70 Wujkowski's denials that he made the statements attributed to him
by Eaton are not credited.
71 There is no credible evidence anything other than Eaton's union ac-
tivity was then offending Respondent
lot of good people would lose their jobs due to the effort
to get the Union in. These statements go beyond a mere
expression of opinion, and violate Section 8(a)(1) of the
Act by conveying the notion that employees would lose
their jobs as a result of the union campaign. It may be
that Lawson did not intend to convey such a threat, but
the test has long been that a statement violates Section
8(a)(1) of the Act if, objectively viewed, it reasonably
tends to interfere with, restrains, or coerces employees in
the exercise of Section 7 rights, which include the right
to form, join, or assist labor organizations. Lawson's
statements meet that test.
J. Conduct of Store Manager Mark Nuffer at Store 45
1. Mechanic Terry Wiedyk testified to an incident on
the morning of February 4, 1987, when Nuffet asked him
if he had anything to do with union activities . Wiedyk
says that , after he said he was neutral on the subject,
Nuffer said employees had nothing to gain and Wiedyk
would lose more in the long run than he would gain.
Nuffer also allegedly advised Wiedyk that Calvin Eaton
was soliciting employees to go union, and Respondent
did not want to see employees talking about the Union
with Eaton . Nuffer denies saying the things attributed to
him by Wiedyk.
During the evening of February 4, 1987, Wiedyk gave
a signed statement to a union representative . The state-
ment reads as follows:
On or about Feb. 4, 1987, I was at work at Action
Automotive. I had started work at 7 AM and was
up front to get a cup of coffee. As I was getting it,
Mark Nuffer Store Manager approached me and
asked, "What do you know about the Union? Are
you involved with it?" said, "I'm not for it, I'm not
against it, I'm just staying neutral." He said, "He
was just curious." He then asked if Calvin Eton
[sic], employee, had talked to me about it or anyone
else. I replied, "No he never said nothing to me."
Then he turned the conversation to something else.
The other workers didn't arrive until 8:00 AM.
That was all that was mentioned about the Union.
The signed statement confirms that not all of Wiedyk's
present recollection is of recent invention, but the con-
clusory statement therein "That was all that was men-
tioned about the union," which was given on the very
day the conduct reported occurred, and his testimony on
cross-examination that Nuffer never threatened any retal-
iation, persuade me that anything in Wiedyk's current
testimony beyond that reported in his earlier signed
statement is an inaccurate recollection. I do believe and
find that Nuffer questioned Wiedyk concerning his union
activities, that Wiedyk was not then an openly active
union supporter, that Respondent has shown no good
reason for the question, and that this questioning consti-
tuted coercive interrogation within the meaning of Sec-
tion 8(a)(1) of'the Act. Such a question posed to a subor-
dinate employee without preamble has a reasonable tend-
ency to cause apprehension in that employee. Wiedyk
had signed an authorization card for the Union on De-
cember 18, 1976, and his proclamation of neutrality in re-
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sponse to Nuffer's question further demonstrates that the
question had such a tendency . I further find Nuffer's
questioning of Wiedyk regarding Eaton 's union activity
violated Section 8(a)(1) of the Act.
2. According to Calvin Eaton , he was unloading a
truck 2 or 3 weeks before the April 9, 1987 election
when he heard Nuffer say to him or the truck driver that
Respondent would shut the garages before it would let
the Union in. He further recalls that Nuffer on an earlier
day told a service writer the same thing in Eaton 's pres-
ence. Neither the service writer nor the truck driver tes-
tified . Nuffer denies the conduct attributed to him by
Eaton. I credit Eaton. In both instances Nuffer was or
should have been aware that Eaton was in earshot, and
should have reasonably expected his comments might
well be overheard by Eaton . That Nuffer's statements
were directed to others does not mitigate the coercive
effect such comments could be reasonably expected to
have on Nuffer or any other employee hearing them.
Threats to shut down the garages in order to avoid a
union clearly violate Section 8(a)(1) of the Act. Nuffer's
statements were such threats.
K. The Meetings at the Sheraton Inn
Respondent conducted meetings with two different
groups of employees at 8:30 a.m . and 1:15 p.m. at the
Sheraton Inn on April 7, 1987 . Each meeting lasted from
2-1/2 to 3 hours, and the same material was discussed at
each . The complaint alleges, as a violation of Section
8(a)(1):
On or about April 7, 1987, Respondent, by its
agents Richard Sabo and Frank Barresi , at meetings
with employees at the Sheraton Inn in Saginaw, in-
formed employees that it would be futile for them
to select a union as their bargaining representative.
Respondent denies this allegation.
Frank Barresi is a management consultant employed
by Respondent to assist in its election campaign. He is
alleged , admitted , and found to be Respondent 's agent
for this purpose. He and Richard Sabo conducted the
meeting, with Barresi doing about 95 percent of the
speaking to employees . Michael King contributed some
comments . James Sabo was present at the morning meet-
ing for 30 to 45 minutes , but was not present during the
afternoon meetings .72 After the employees convened,
Barresi was introduced , and commenced his discussion
with the aid of a 15 -page flip chart . Barresi's account of
his talk is credited. He impressed me as a truthful wit-
ness, and his testimony was detailed , consistent, believ-
able, and corroborated by other testimony . Employee
testimony to the contrary is confused , fragmentary, and
72 General Counsel relies on the testimony of Patricia Adcock to show
James Sabo said there was no certification at Flint, there would be no
wage increase at Saginaw if the Union got in, and negotiations would
drag on gust like at Flint if the Union got in `I believe Adcock confused
Robert Sabo with James Sabo, who was only present briefly at one meet-
ing, as did other employees , but, in either case, she is not credited. She
recalls nothing else for certain , including whether or not there was a flip
chart used Her pretrial affidavit states that she was given the impression
negotiations would drag on with the Union, and I believe she was testify-
ing to her impressions rather than what was said.
unconvincing . It appears to me that the employees were
reporting their interpretation of the meaning of the state-
ments of Barresi and other management officials, and
really had no accurate recollection of what was said.
This is understandable given the quantity of newspaper
articles, NLRB booklets , financial documents , and other
material distributed for employees to consider as Barresi
continued , but I cannot credit testimony contrary to that
of Barresi when that testimony is, as I find it is, the
product of confusion , misapprehension , and misinterpre-
tation, even though that misinterpretation is understand-
able in the circumstances of a simultaneous deluge of
facts and documents the employees were unable to co-
herently assimilate in the time allotted.
Barresi based his speech on the flip chart which he
went through page by page.7 3 He first explained the
election procedures , and then explained that the parties
had an obligation to bargain in good faith if the Union
won. At this point he passed a Board publication explain-
ing its law and procedures to employees for them to
read . He said negotiations involved give and take, and
neither the Company nor the Union could force the
other to agree to anything . He mentioned that the Com-
pany could not unilaterally increase or decrease wages
and benefits during negotiations . With respect to the du-
ration of negotiations, Barresi said no one could accu-
rately predict how long negotiation of a first contract
would take, it could take weeks, months, or years, but
his experience was the average first contract was negoti-
ated in 4 to 6 months. He recalled that he had negotiated
a contract in a matter of weeks and another took several
years, but both were exceptional cases. Barresi pointed
out the final outcome of negotiations would be whatever
the parties agreed on, and could be the same , less, or
more than employees would have received without a
union . He noted that Action Auto had a history of
yearly wage and benefit improvements, and then said
employees would have to ask themselves whether they
might get the same, less, or more than they would have
without the Union.
While Barresi was explaining how long a first contract
might take , Richard Sabo interjected that a union had
been certified at the Flint stores in 1981 and negotiations
had not yet begun , but this was not because the Compa-
ny was stalling but because there remained issues to be
litigated which the Company had a right to litigate.74
Sabo added that he would stand by the decision in the
Flint litigation whatever it was. With respect to events at
Saginaw , Sabo said that if the Union won both parties
were obliged to bargain in good faith . Sabo did not say
the matter would be tied up in court if the Union won.
Barresi explained what union security , management-
rights provisions, and no-strike no-lockout provisions
were. As an aid to this explanation , he read aloud the ap-
propriate provisions of a UFCW contract, and described
other items in the agreement. He told the employees the
parties had to agree on the exact wording as well as the
points at issue of each contractual provision.
73 The chart itself contains nothing violative of the Act
74 The case before Judge Harmatz was then before the Board
ACTION AUTO STORES
Barresi then proceeded to a discussion of the cost to
Respondent of wages and benefits. He explained that,
whether there was a union or not, competition affected
what a company could afford in wages and benefits, and
Action Auto was growing and had to be competitive,
which meant it had to have quality parts available at the
stores at a competitive price. Richard Sabo said it was
not individual wages or benefits, but the total cost of
wages and benefits that were significant. Sabo further
said that competitiveness was so important that Action
Auto planned its business based on competition, did
market research, and built stores based on the findings of
market research. Sabo said the Company built its own
stores because, by having its own construction depart-
ment, it could build stores for less money and be more
competitive. Moreover, said Sabo, Action Auto has
always built on an architectural design having a multi-
purpose use. The idea was that if a store did not perform
up to company standards the Respondent could sell the
building, recapture the money, and invest it in other lo-
cations.
Sabo said he would never sign a contract which would
put the Company in a noncompetitive position. Barresi
added that Sabo in fact couldn't sign an agreement
which could put Action Auto in a noncompetitive situa-
tion any time during the life of a contract, and with or
without a Union the competition was a major factor for
consideration in the discount auto parts business.
Richard Sabo explained that the Company was going
public on that very day, April 7, and the net profit for
the Company was 1.8 cents per dollar of sales during the
last fiscal year, and during the first 6 months of the cur-
rent fiscal year it was only 1.4 cents per dollar of sales.
Sabo said that if wages and benefits were the only aspect
of competitiveness it would be in his best interest to keep
them as low as they could, but that wasn't the only
aspect because Action Auto was a growing Company
and needed to attract good people, and wages and bene-
fits had to be high enough to be able to attract and keep
them. Sabo also read a statement from the prospectus
that said the Union would have no material adverse
affect on the Company. Barresi then pointed out there
was a union letter of March 27 in which the Union said
that the Company had mentioned in this prospectus that
the Union would have no material adverse affect on the
Company. Sabo said that if there was a union or not
would make no difference in terms of material affects,
because the Company needed to be competitive whether
there was a union or not.
Barresi said that a strike might occur. He said that he
was not saying it would, nor would Richard Sabo say so,
but a strike was a possibility, and they wanted to devote
a few minutes to talk about strikes. Page 8 of his flip
chart said that, if there was a strike, striking employees
do not earn wages because they are not coming to work,
the Company stops paying for benefits, and employees
are not eligible for unemployment compensation. In con-
junction with this chart, Barresi referred to a booklet
containing unemployment compensation guidelines, and
read aloud that labor disputes disqualify employees from
compensation and strikes do not qualify employees for
food stamps. Barresi also read from a Board prepared
905
guidebook for public usage that economic strikers could
be permanently replaced. He then gave this document to
the assembled employees to read.
Barresi also distributed newspaper articles describing
strikes by the UFCW and others, the closing of several
union stores, the reopening of some stores on a nonunion
basis with new employees, the contracting of work to
vendors by a retail establishment, and a decertification
effort at a Sears store.
Richard Sabo compared the Company's prospectus
with a union letter referring to items in the prospectus,
and he and Barresi showed the employees how they
thought the union letter was misleading. They also com-
pared union officers' salaries with those of the Sabo
brothers.
Barresi explained the difficulty of decertifying a union
once it was certified, this in response to a report some
employees were suggesting a 1-year trial of the Union
and then a vote to oust it if they did not like it. In addi-
tion to explaining the binding nature of the certification
year, and the contract bar rule prohibiting an election
until a period late in the contract, Barresi pointed out
that if the Union did not win the employees could have
another election in a year.
Michael King compared the salaries at Sears under the
union contract there with those at Action Auto. King
then pointed out the changes he had accomplished
during his brief tenure as personnel director.
General Counsel has not shown by a preponderance of
the credible evidence that 'Respondent's agents at the
April 7 Sheraton Inn informed employees It would be
futile for them to select a union as their representative,
That might have been what some employees concluded,
but that is' not evidence. Respondent's statements were
well within the free speech protection of Section 8(c) of
the Act.
L. Objections to Election
The objections read as follows:
1. On or about March 19, 1987, the employer dis-
charged employee Dale Adcock because of his
union activities and support
2. On or about March 19, 1987, the employer sus-
pended and demoted employee Pat Adcock because
of her union activities and support
3. On or about numerous dates during the labora-
tory period the employer interrogated employees
about their support for the union and about their ex-
pectations for the outcome of this election.
4. The Excelsior list furnished by the employer
contained inaccurate addresses for a substantial
number of the eligible employees, thereby depriving
the union of the ability to communicate with said
employees.
5. The Employer, by it agent Kraft & Baresi, at
captive audience meetings with the employees, im-
plied threatened that the stores would close if the
union prevailed in the election.
6. The Employer, by its agent Richard Sabo,
threatened that if the union were selected the com-
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany would never agree to a collective bargaining
agreement.
7. The Employer, by it agents Richard Sabo,
James Sabo, David Scigliano , and Kraft & Baresi,
engaged in electioneering in the immediate vicinity
of the polls prior to and during the polling periods.
8. The Employer, by its agents Richard Sabo,
James Sabo, David Scigliano, and Kraft & Baresi,
conducted captive audience meetings immediately
prior to the polling periods.
Because of these acts of unlawful interference the
Petitioner requests that the election be set aside and
that a new election be conducted.
As previously noted above, the Acting Regional Di-
rector set the objections down for hearing with the al-
leged unfair labor practices by order of July 14, 1987. In
so doing, he further ordered that certain alleged unfair
labor practices set forth in the complaint as occurring
during the critical period for election objections75
should be considered as additional objectionable conduct,
citing Seneca Food Corp., 244 NLRB 558 (1979), and
American Safety Equipment Corp., 234 NLRB 501 (1978),
as authority, consistent with the Board's later decision in
White Plains Lincoln Mercury, 288 NLRB 1133 (1988).
Withdrawal of Objections 1, 2, and 4 was approved by
the undersigned at hearing.
Objections 5, 6, 7, and 8 are overruled because they
are not supported by probative evidence.
Objection 3 is sustained because Respondent's agents
committed numerous acts of coercive interrogation be-
tween February 13 and April 9, 1987. In addition to the
interrogation, there were, during the same period, sever-
al threats of plant closure, job loss, disparate treatment,
no promotions, the withholding of raises, and other un-
specified reprisals in response to employee union activity.
These threats and a solicitation of grievances by Johnson
accompanied with a promise of remedy conditioned on
the surrender of authorization cards fall under the cate-
gory of additional objectionable conduct, are unfair labor
practices, and are sufficient in themselves to-warrant set-
ting the election aside.? 6
M. The Duty to Bargain
Having concluded that the election should be set aside,
it is now appropriate to consider whether, as General
Counsel contends, a bargaining order is an appropriate
remedy for the violations found in this case.77 I have
earlier found that the Union had by February 18, 1987,
been designated by a majority of the employees in the
appropriate unit as their collective-bargaining representa-
tive. Respondent committed 15 acts of coercive interro-
gation, made 6 threats of garage closure, 3 other threats
of job loss, and 3 threats of unspecified retaliation;
threatened 1 employee with disparate treatment; condi-
75 To constitute valid objections to an election the conduct relied on
must occur during the period commencing on the date the petition is
filed, here February 13, 1987, and ending on the date of the election, here
April 9, 1987 Ideal Electric & Mfg Co, 134 NLRB 1275 (1961), Goodyear
Tire & Rubber Co, 138 NLRB 453 (1962)
76 Dal-Tex Optical Co, 137 NLRB 1782, 1786 (1962).
7 7 Irving Air Chute Inc., 149 NLRB 627 (1964)
tioned a raise on union failure in the campaign; threat-
ened to withhold wage increases and promotions if the
Union were successful; engaged in surveillance of a
union meeting and created an impression it was so en-
gaged; solicited employee grievances and requested the
surrender of union authorization cards in exchange for a -
remedy of the grievances; told an employee he had been
reassigned to another work location because he support-
ed the Union; instructed an employee not to discuss the
Union with other employees; issued warnings to an em-
ployee because he was a union adherent; and discharged
2 employees because they were known or suspected to
be union sympathizers. Respondent's unfair labor prac-
tices are clearly serious and pervasive. The various
threats, the surveillance and impression thereof, and the
unlawful warnings and discharges are highly coercive
and their effect is unlikely to be erased by traditional
remedies . Moreover, the extensive coercive interrogation
goes beyond a mere few questions readily remedied by a
cease-and-desist order and the posting of a notice to em-
ployees assuring no repetition thereof.
The Court in NLRB v. Gissel Packing Co., 395 U.S.
575 (1969), found a bargaining order appropriate where
the unfair labor practices were so outrageous and perva-
sive that they could not be cured by traditional remedies
and a fair election was therefore impossible, or where
"the possibility of erasing the effects of past practices
and of ensuring a fair election . . . by the use of tradi-
tional remedies . . . is slight and that employee sentiment
once expressed through cards would, on balance, be
better protected by a bargaining order." Id. at 614-615.
Whether Respondent's conduct rises to the level of
violations that cannot be cured by traditional remedies
and therefore make a fair election impossible is arguable,
but Respondent's unfair labor practices are at least suffi-
cient to support a conclusion the possibility of erasing
their''effects and ensuring a fair election by traditional
remedies is slight. Here the unfair labor practices were
widespread and of a type reasonably calculated to indeli-
bly and coercively impress employees with Respondent's
readiness to take measures against their very job security
if they continue in prounion activity. Employees do not
easily, if ever, forget the message Respondent conveys
by such conduct, and are not likely to be sufficiently re-
assured by the usual remedies to the extent they would
feel free to express prounion preferences through the
ballot box.
For the foregoing reasons, I am persuaded a bargain-
ing order is appropriate in this case. Although the Union
requested recognition by letter of February 13, 1987, re-
ceived by Respondent on February 17, there is no show-
ing or contention the Union attained its majority status
until February 18, 1987. Accordingly, as General Coun-
sel contends, a bargaining order effective February 18,
1987, is appropriate.
CONCLUSIONS OF LAW
1. Respondent , Action Auto Stores, Inc., is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
ACTION AUTO STORES
2. The Union, Local 876, United Food and Commer-
cial Workers International Union, AFL-CIO, CLC is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The following unit is appropriate for collective bar-
gaining:
All full-time and regular part-time store employ-
ees, including cashiers, parts clerks, mechanics, gas
attendants, and maintenance employees employed
by Respondent at its facilities located at 408 South
Michigan, Saginaw, Michigan; 2303 Hess, Saginaw,
Michigan; 3285 Bay, Saginaw, Michigan; 2740 East
Holland, Saginaw, Michigan; 710 North Euclid,
Bay City, Michigan; 7492 Gratiot, Shields, Michi-
gan; 5,605 State, Saginaw, Michigan; 1504 Center,
Essexville, Michigan; and 112 Ashman Street, Mid-
land, Michigan; BUT EXCLUDING office clerical
employees, store managers, assistant store managers,
assistant store managers in training, assistant manag-
ers-service, service writers, guards and supervisors
as defined in the Act.
4. At all times since February 18, 1987, and continuing
to date, the Union has been the exclusive representative
of all the employees within said appropriate unit for pur-
poses of collective bargaining.
5. By the following acts and conduct, Respondent has
violated Section 8(a)(1) of the Act.
(a) Engaging in surveillance and creating an impres-
sion of surveillance of employees' union activities.
(b) Coercively interrogating employees regarding their
or other employees' union sympathies.
(c) Threatening employees with retaliation, including
garage closure, loss of jobs, disparate treatment, or loss
of wage increases or promotions, because they engage in
union activities.
(d) Instructing employees not to discuss the Union
with other employees.
(e) Telling an employee he was assigned to another
work location because he supported the Union.
(f) Soliciting employee grievances and conditioning
remedy thereof on the surrender of union authorization
cards, and otherwise requesting the surrender of union
authorization cards.
6. Respondent violated Section 8(a)(3) and (1) of the
Act by the following conduct:
(a) By issuing written warnings to and discharging
Mark Henry because he engaged in union activity.
(b) By discharging John Hafner because Respondent
knew or suspected he engaged in union activity.
7. Respondent engaged in objectionable conduct re-
quiring the election conducted on April 9, 1987, in Case
7-RC-18289 be set aside.
8. The unfair labor practices found are sufficiently seri-
ous and pervasive as to warrant a remedial order requir-
ing Respondent to recognize and bargain with the Union
as the exclusive collective-bargaining representative of
Respondent's employees in the unit hereinabove found
appropriate.
9. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
907
In addition to the usual cease -and-desist order and
notice posting requirements , my recommended Order
will require Respondent to offer unconditional reinstate-
ment to Mark Henry and John Hafner, make them whole
for wages lost as a result of their unlawful discharge,
backpay to be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded.78 Re-
spondent will also be required to withdraw the two
warnings delivered to Mark Henry on December 11,
1986, and dated December 6 and 11, 1986, and to ex-
punge from its files any reference to these warnings to
Henry and the discharges of Henry and Hafner, and
notify them in writing this has been done and that evi-
dence of these unlawful actions will not be used as a
basis for future personnel actions against them.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed79
ORDER
The Respondent, Action Auto Stores, Inc., Flint, Sagi-
naw, Bay City, and Midland, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in or activities on behalf
of the Union, or any other labor organization, by dis-
charging employees or issuing warnings to them or by
otherwise discriminating in any manner in respect to
their tenure of employment or any term or condition of
employment.
(b) Coercively interrogating employees concerning
their or other employees' union activities or desires.
(c) Threatening employees with retaliation, including
garage closure, loss of jobs, disparate treatment, or loss
of wage increases or promotions, because they engage in
union activities.
(d) Instructing employees not to discuss the Union
with other employees.
(e) Engaging in surveillance or creating the impression
of surveillance of employees' union activities.
(f) Telling employees they are assigned to other work
locations because they support a union.
(g) Soliciting employee grievances and conditioning
remedy thereof on the surrender of union authorization
cards, or otherwise requesting the surrender of union au-
thorization cards.
78 In accordance with the decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after I January 1987 shall be
computed at the "short- term Federal rate" for the underpayment of taxes
as set out in the 1987 amendment to 26 U S.C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 US C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
79 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(h) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain with the Union
as the exclusive representative of all employees in the
above-described appropriate unit and, if an understanding
is reached, embody such understanding in a written,
agreement.
(b) Offer to Mark Henry and John Hafner 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 loss of wages
they may have suffered by reason of the discrimination
against them in the manner set forth in the remedy sec-
tion of this decision.
(c) Withdraw the December 6 and 11, 1986 written
warnings issued to Mark Henry on December 11, 1986.
(d) Remove from its files any reference to the afore-
said warnings issued to Mark Henry and to the dis-
charges of Mark Henry and John Hafner, and notify
them in writing this has been done and that evidence of
these unlawful actions will not be used as a basis for
future personnel actions against them.
(e) Preserve and, on 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 nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its Flint and Saginaw, Michigan offices,
stores, and other facilities copies of the attached notice
marked "Appendix."80 Copies of the notice, on forms
provided by the Regional Director for Region 7, after
being signed by Respondent's authorized representative,
shall be posted by Respondent for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure the said notices are
not altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the election in Case 7-
RC-18289 be, and the same is, set aside, and that the pe-
tition in Case 7-RC-18289 be dismissed.
80 If 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 Nation-
al 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."
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 has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or warn employees, or other-
wise discriminate against them in any manner with re-
spect to their tenure of employment or any term or con-
dition of employment because they support Local 876,
United Food and Commercial Workers International
Union, AFL-CIO, CLC or any other labor organization.
WE WILL NOT coercively interrogate employees con-
cerning their or other employees' union activities or de-
sires.
WE WILL NOT threaten our employees with any kind
of retaliation because they engage in union activities.
WE WILL NOT solicit employee grievances and condi-
tion remedy thereof on the surrender of union authoriza-
tion cards, and WE WILL NOT otherwise solicit employ-
ees to surrender union authorization cards.
WE WILL NOT instruct employees not to discuss a
union with other employees.
WE WILL NOT engage in surveillance of employee
union activities, or give them the impression we are so
doing.
WE WILL NOT tell employees they are assigned to
work at other locations because they support a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the National
Labor Relations Act.
WE WILL offer John Hafner and Mark Henry immedi-
ate 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 previously enjoyed, and make them whole for
any loss of earnings they may have suffered by reason of
their discriminatory discharge, in the manner set forth in
the remedy section of the decision.
WE WILL withdraw the December 6 and 11, 1986
warnings issued to Mark Henry on December 11, 1986.
WE WILL remove from our files any reference to the
above warnings and the discharge of Mark Henry and
the discharge of John Hafner, and notify them in writing
this has been done and that evidence of these unlawful
actions will not be used as a basis for future personnel
actions against them.
WE WILL, on request, recognize and bargain with
Local 876, United Food and Commercial Workers Inter-
national Union, AFL-CIO, CLC as the exclusive bar-
gaining representative of all the employees in the appro-
priate unit described below, and, if an understanding is
reached, embody such understanding in a written , signed
agreement.
The appropriate unit for the collective bargaining is:
ACTION AUTO STORES 909
All full-time and regular part-time store employ-
ees, including cashiers, parts clerks , mechanics, gas
attendants , and maintenance employees employed
by us at our facilities located at 408 South Michi-
gan, Saginaw , Michigan; 2303 Hess, Saginaw,
Michigan ; 3285 Bay, Saginaw , Michigan ; 2740 East
Holland , Saginaw, Michigan ; 710 North Euclid,
Bay City, Michigan ; 7492 Gratiot, Shields, Michi-
gan; 5605 State , Saginaw, Michigan ; 1504 Center,
Essexville, Michigan ; and 112 Ashman Street, Mid-
land, Michigan; BUT EXCLUDING office clerical em-
ployees, store managers, assistant store managers,
assistant store managers in training , assistant manag-
ers-service , service writers, guards and supervisors
as defined in the Act.
ACTION AUTO STORES, INC.