Baron Honda-Pontiac

National Labor Relations Board - Board Decisions

Feb 28, 1995

316 N.L.R.B. 611 (N.L.R.B. 1995)

611
316 NLRB No. 103
BARON HONDA-PONTIAC
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 We shall modify the judge’s remedy and recommended Order to
provide the standard remedial language for the 8(a)(5) violations
found by the judge. We shall modify the judge’s recommended
Order to conform the cease-and-desist language concerning the Re-
spondent’s discrimination against employees Parisi, Chilicki, and
Chiavola to that in the notice, and we shall add to the expungement
order reference to the unlawful warnings as well as the unlawful dis-
charges. We shall also modify the judge’s notice by deleting lan-
guage traditionally used in 8(b)(2) cases.
3 Chairman Gould finds it unnecessary to pass on the General
Counsel’s exception. The Respondent has been found to have vio-
lated Sec. 8(a)(5) and (1) by failing to honor the collective-bargain-
ing agreement. The question of whether the Respondent violated the
agreement by failure to make the fund payments can be resolved at
the compliance stage.
4 Because we adopt the judge’s finding that the Respondent did not
violate the Act by failing to remit certain specified contributions to
the Pension Fund and Health and Welfare Fund, the above-amended
remedy shall not be construed as requiring the Respondent to remit
such contributions to those funds.
Baron Brothers Auto Group, Inc. d/b/a Baron
Honda-Pontiac and Local 259, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America. Cases 29–CA–16573, 29–
CA–16637, 29–CA–16854, 29–CA–16874, 29–
CA–17134, and 29–CA–17273
February 28, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On April 26, 1994, Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an exception and a support-
ing brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
The General Counsel excepts to the judge’s finding
that the Respondent did not violate Section 8(a)(5) of
the Act by failing to remit contributions to the Union’s
Pension Fund and Health and Welfare Fund. We find
no merit to this exception.
In its answer to the consolidated complaint, the Re-
spondent denied the allegations relating to its failure to
make fund payments. In its answer to the amended
consolidated complaint, however, the Respondent did
not specifically reference the paragraphs that set forth
the fund payments allegations. At trial, the General
Counsel did not adduce any evidence concerning the
fund payments issues, but argued to the judge that a
violation should be found because the allegations were
not denied by the Respondent.
We agree with the judge that dismissal of these alle-
gations is appropriate. The allegations relating to the
fund payments are substantially the same in both the
consolidated complaint and the amended consolidated
complaint. Where, as here, a respondent has denied an
allegation in the initial complaint, the Board will not
deem the allegation admitted based on a subsequent
failure to answer an amended complaint’s substantially
unchanged allegation. Media One Inc., 313 NLRB 876
(1994); and Miami Rivet of Puerto Rico, 307 NLRB
1390 (1992).
Further, it is apparent from its answer to the amend-
ed consolidated complaint that the Respondent in-
tended to deny the fund payments allegations in that
answer as well. In the consolidated complaint, the spe-
cific allegations concerning fund payments are set forth
in paragraph 22. In the amended consolidated com-
plaint, however, the specific allegations concerning
fund payments are set forth in paragraphs 23(a) and
(b). The Respondent’s answer to the amended consoli-
dated complaint specifically denies paragraphs 22(a)
and (b), but does not mention paragraph 23 at all.
Paragraph 22 in the amended consolidated complaint
does not have an ‘‘(a) and (b).’’ We believe it obvious
that the Respondent meant to deny paragraphs 23(a)
and (b), but inadvertently typed 22(a) and (b).
Accordingly, as the Respondent denied the fund
payments allegations in its original answer and in-
tended to deny the fund payments allegations in its
subsequent answer, and as the General Counsel did not
introduce any record evidence concerning the Re-
spondent’s failure to make fund payments, the judge
properly dismissed the fund payments allegations.3
AMENDED REMEDY
The Respondent shall be ordered to make its em-
ployees covered by the collective-bargaining agreement
whole for any loss of earnings or other benefits suf-
fered as a result of the Respondent’s failure to apply
the collective-bargaining agreement, such compensa-
tion or other payments to be computed as set forth in
Ogle Protection Service, 183 NLRB 682 (1970), with
interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
modified below and orders that the Respondent, Baron
Brothers Auto Group, Inc. d/b/a Baron Honda-Pontiac,
Patchogue, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(j).
‘‘(j) Discharging or otherwise discriminating against
employees for supporting Local 259 or any other
union.’’
2. Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs.
‘‘(a) Adhere to the terms of the collective-bargaining
agreement with Local 259 and make employees cov-
ered by that agreement whole for any loss of earnings
and benefits suffered as the result of the Respondent’s
failure to adhere to the terms of the agreement in the
manner set forth in the remedy section of this deci-
sion.’’
3. Substitute the following for newly lettered para-
graph 2(e).
‘‘(e) Remove from its files any reference to the un-
lawful warnings and discharges, and notify the em-
ployees in writing that this has been done and that the
discharges and warnings will not be used against them
in any way.’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against employees for supporting Local 259, United
Automobile, Aerospace and Agricultural Implement
Workers of America, or any other union.
WE WILL NOT repudiate our collective-bargaining
agreement with Local 259 nor will we inform our em-
ployees that we do not recognize Local 259 as the rep-
resentative of our employees in the following appro-
priate unit:
All service shop employees employed by Baron
Brothers Auto Group, Inc. d/b/a Baron Honda-
Pontiac, excluding office clerical employees, new
and used car salesmen, guards, watchmen, profes-
sional employees and supervisors as defined in
the Act.
WE WILL NOT direct employees to sign authorization
cards and medical benefit applications for Amal-
gamated Workers Local 88, Retail, Wholesale and De-
partment Store Union, AFL–CIO (Local 88).
WE WILL NOT direct employees to refrain from join-
ing or supporting Local 259, nor direct employees to
refrain from signing Local 259 membership and dues-
checkoff applications.
WE WILL NOT deal directly with employees or solicit
employees to enter into individual agreements for the
purpose of modifying the terms of the collective-bar-
gaining agreement.
WE WILL NOT fail to pay employees vacation pay
according to the terms of the collective-bargaining
agreement.
WE WILL NOT delay in furnishing information to
Local 259 necessary for the investigation and process-
ing of grievances.
WE WILL NOT direct employees to refrain from fil-
ing grievances with Local 259 nor will we direct em-
ployees to present grievances directly to us.
WE WILL NOT threaten employees with reprisals un-
less they withdraw their grievances.
WE WILL NOT threaten employees with discharge if
they sign authorization cards for Local 259 nor will we
confiscate those cards.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL adhere to the terms of the collective-bar-
gaining agreement with Local 259 and make our em-
ployees covered by that agreement whole for any loss
of earnings and benefits suffered as the result our fail-
ure to adhere to the terms of the agreement.
WE WILL offer Louis Parisi Jr., Bartosz Chilicki, and
George Chiavola 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 any other rights or privileges pre-
viously enjoyed and WE WILL make them whole for
any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus in-
terest.
WE WILL offer Louis Parisi Jr., Bartosz Chilicki, and
George Chiavola equal training and consideration upon
their reinstatement.
WE WILL notify each of them that we have removed
from our files any reference to his warning and dis-
charge and that the warning and discharge will not be
used against him in any way.
613BARON HONDA-PONTIAC
1 Respondent Baron’s brief contains matter dehors the record
which I shall disregard. Many of the cases cited in Respondent’s
brief are inapposite or have been overruled and I shall not discuss
them.
2 Stephen Baron is the president of Respondent. His brothers Ron-
ald and David Baron are also associated with Respondent.
3 Stephen, Ronald, and David Baron executed a stipulation rec-
ognizing Local 259 and adopting the collective-bargaining agreement
on February 13, 1992.
4 Calicchio was a supervisor and agent of Baron during this time.
WE WILL make our employees whole for vacation
pay unlawfully computed in 1992 and 1993, with inter-
est.
BARON BROTHERS AUTO GROUP, INC.
D/B/A BARON HONDA-PONTIAC
Sharon Chau, Esq., for the General Counsel.
Denise Pavlides, Esq., of Hicksville, New York, for the Re-
spondent.
Stephen E. Appell, Esq. (Sipser, Weinstock, Harper & Dorn),
of New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Brooklyn and New York, New York, on
October 19, 20, and 22 and November 29, 1993. The com-
plaint alleges that Respondent engaged in numerous viola-
tions of Section 8(a)(1), (2), (3), and (5) of the Act, includ-
ing the discharge of three employees. As will be seen below,
Respondent admitted certain of the allegations, but Respond-
ent denies that the discharges of employees violated the Act,
that it threatened employees with discharge if they joined
Local 259 and confiscated Local 259 membership and dues-
checkoff applications, that it failed to remit contributions to
the Local 259 Pension and Health and Welfare Funds, and
that it failed to pay average pay rates for vacations.
On the entire record, including my observations of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel and Respondent on Janu-
ary 28, 1994, I make the following1
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, with its principal
place of business in Patchogue, New York, is engaged in the
retail sale of automobiles and the maintenance and repair of
automobiles. Respondent annually derives gross revenues in
excess of $500,000 and purchases products valued in excess
of $50,000 directly from outside New York State. The parties
agree, and I find, that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and that Local 259, United Automobile, Aero-
space and Agricultural Implement Workers of America, and
Amalgamated Workers Local 88, Retail, Wholesale and De-
partment Store Union, AFL–CIO are each labor organizations
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Facts stipulated and admitted by the parties
The facts summarized in this section are based on a stipu-
lation agreed to by the parties and on those portions of the
complaint admitted by Respondent Baron.
On about February 13, 1992, Respondent Baron purchased
a company known as Leitner Pontiac Honda, Inc., an auto
dealer and repair establishment with a repair shop in
Patchogue, New York.2 Leitner was a member of the Auto-
mobile Dealers Industrial Relations Association of New
York; the Association and Local 259 were parties to a collec-
tive-bargaining agreement with a term from July 1990 to
June 1994. When Respondent purchased the Leitner Com-
pany, it agreed to adopt the collective-bargaining agreement
and to abide by it with respect to the service and parts de-
partment employees at the Patchogue facility.3 Baron began
operating the facility on February 24, 1992.
The unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act is:
All service shop employees employed by Respondent,
excluding office clerical employees, new and used car
salesmen, guards, watchmen, professional employees
and supervisors as defined in the Act.
The parties agree that Local 259 is the exclusive represent-
ative of the unit employees and that the contract in effect be-
tween Baron and the Union contains a grievance and arbitra-
tion procedure and provisions requiring Baron to remit con-
tributions on behalf of unit employees to the Local 259 Pen-
sion Fund and the Health and Welfare Fund.
In the spring of 1992, Baron released three mechanics who
had been employed by Leitner and who had continued on the
Baron payroll: Louis Parisi Jr. had been a B-mechanic for
about 3-1/2 years and was laid off by Baron on March 5,
1992; Bartosz Chilicki had been a B-mechanic for about 22
years and was discharged by Baron on April 3, 1992; and
George Chiavola had been an A-mechanic for about 22 years
and was discharged by Baron on May 1, 1992.
On at least 10 occasions between April and July 1992,
John Calicchio, the service manager of the Patchogue repair
facility, informed unit members that Baron did not recognize
Local 259 as the exclusive collective-bargaining representa-
tive of the employees and that Baron did not have a contract
with Local 259.4 In a letter dated July 21, 1992, Stephen
Baron informed unit employees that Baron did not recognize
Local 259 as the exclusive representative of the unit and that
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Stephen Baron is an agent of Baron.
6 Local 88 is the collective-bargaining representative of employees
at some other entities owned by Stephen Baron.
7 Cutaia is a supervisor and agent of Baron.
Baron did not have a contract with Local 259.5 Respondent’s
conduct constituted a repudiation of its collective-bargaining
relationship with Local 259 and interfered with its employ-
ees’ rights under the Act in violation of Section 8(a)(5) and
(1) of the Act.
In April, May, and June 1992, Calicchio directed the unit
employees to sign authorization cards and medical benefit
applications of Amalgamated Workers Local 88, even though
Baron had no collective-bargaining relationship with Local
88 covering the unit employees.6 In May and June 1992,
Cutaia urged the unit employees to join Local 88. Local 259
was the exclusive collective-bargaining representative of Re-
spondent’s unit employees and Respondent was a party to the
collective-bargaining agreement with Local 259. I find that
Respondent rendered unlawful assistance and support to
Local 88 in violation of Section 8(a)(2) and (1) of the Act.
Shenandoah Coal Co., 305 NLRB 1071 (1992).
On at least 10 occasions from April to July 1992, Stephen
Baron and Calicchio directed unit employees to refrain from
joining or supporting Local 259 and to refrain from signing
Local 259 membership and dues-checkoff applications. In
late May and early June 1992, Joseph Cutaia, the general
manager of the Patchogue facility, directed unit employees to
refrain from joining or supporting Local 259 and to refrain
from signing Local 259 membership and dues-checkoff ap-
plications.7 Respondent’s directions interfered with the rights
of the employees in violation of Section 8(a)(1) of the Act
and, viewed with the illegal assistance to Local 88 and the
repudiation of its collective-bargaining relationship with
Local 259, the directions were designed to undermine Local
259 as the collective-bargaining representative of the unit
employees in violation of Section 8(a)(5) and (1) of the Act.
On August 10, 1992, Baron reinstated Parisi, Chilicki, and
Chiavola pursuant to a partial settlement of the grievance
filed by Local 259 with respect to the layoff and discharges,
respectively, of these employees. On August 18, 1992, the
arbitrator hearing the grievance issued an opinion and award
which required Baron to make whole Parisi, Chilicki, and
Chiavola, with certain amounts of backpay and required
Baron to give ‘‘training and equal consideration and assist-
ance’’ to the three men. As set forth in detail below, begin-
ning right after the three employees were reinstated, Baron
began issuing warning notices to the employees. On Septem-
ber 21, 1992, Baron discharged the three employees. Since
that date, Baron has refused to reinstate Parisi, Chilicki, and
Chiavola.
In August, September, and October, Local 259 requested
route sheets and mechanics’ timecards, and Reynold time
tickets and repair orders for June, July, August, and Septem-
ber 1992. The parties agree that this information was nec-
essary for Local 259 to investigate and process grievances re-
lating to warnings issued to Parisi, Chilicki, and Chiavola
and relating to the failure to provide job training and assist-
ance to these employees. Baron did not furnish Local 259
with this information from August 23 until December 2,
1992. Respondent provided no explanation for the delay in
furnishing the information. I find that Respondent violated
Section 8(a)(5) and (1) of the Act. NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967).
On February 19, 1993, Stephen Baron warned and directed
the unit employees to refrain from filing grievances with the
Union concerning rates of pay, wages, hours of employment,
and other terms and conditions of employment and directed
employees to present their grievances directly to Respondent.
This attempt by Respondent to bypass Local 259 and deal di-
rectly with the unit employees violated Section 8(a)(5) and
(1) of the Act.
In February or March 1993, Cutaia threatened the unit em-
ployees with hiring additional mechanics and reduction of
earnings, elimination of incentive pay, and withdrawal of
permission to use the shop and equipment for the mainte-
nance of employees’ personal cars unless the employees
withdrew grievances relating to Baron’s failure to pay aver-
age pay rates for holidays and vacations and in order to in-
duce employees to abandon their activities on behalf of Local
259 and their other concerted activities for the purpose of
collective bargaining or other mutual aid or protection. Re-
spondent’s actions interfered with the unit employees’ rights
and coerced them in the exercise of their rights and were in-
tended to erode the status of Local 259 as the bargaining rep-
resentative of the unit employees in violation of Section
8(a)(5) and (1) of the Act.
On March 5, 1992, Cutaia bypassed Local 259 and dealt
directly with the mechanics in the unit by meeting with them
and soliciting them to enter into individual agreements for
the purpose of modifying the terms of the collective-bargain-
ing agreement relating to holiday pay and vacation pay; holi-
day pay and vacation pay are mandatory subjects of collec-
tive bargaining. By its actions in bypassing Local 259 and
dealing directly with the unit employees, Respondent violated
Section 8(a)(5) and (1) of the Act.
2. Facts in dispute
a. Confiscation of cards and threat of discharge
John Calicchio, the service manager for Respondent Baron
during the period relevant to these proceedings, testified that
in April 1992, he was in Stephen Baron’s office with Baron
and General Manager Joseph Cutaia, when Baron said he did
not want Local 259 in his place and that he wanted to bring
in Local 88. A few days later, Baron instructed Calicchio to
give out Local 88 cards to the men, including any new hires;
Baron gave Calicchio some Local 88 cards to hand out to
the men. In May 1992, Stephen Lakeman was hired by Ste-
phen Baron as a mechanic. Calicchio told Lakeman that he
could not join Local 259 and that he should throw away his
Local 259 authorization card. If he joined Local 259 he
would not be working at Baron. Lakeman kept talking to
Calicchio about Local 259 and its medical benefits, but
Calicchio told him not to join Local 259 because if he did
he would not work at Baron much longer. After Lester Vellia
was hired as a mechanic in June 1992, Calicchio told him
that if he filled out the Local 259 card, he would not work
at Baron any longer. Vellia said that he wanted benefits and
Calicchio responded that he would belong to Local 88 and
get benefits from Local 88. Calicchio testified that he had
similar conversation with unit employees Ralph Grasso, Ste-
ven Singotiko, and Jack Anderson. Calicchio denied that he
615BARON HONDA-PONTIAC
8 Work called an ‘‘oil and lube job,’’ although it is customer paid,
is not regarded as lucrative because the mechanic has only 18 min-
utes to complete all the tasks, including fetching the car from the
lot and returning it.
9 The section also provides that there shall be no discrimination in
the allocation of work.
had ever told Stephen Baron or Joseph Cutaia that the men
did not want to sign cards for Local 259.
Lester Vellia testified that Carlo Oliveri, the business rep-
resentative for Local 259, gave him Local 259 membership
cards in the summer of 1992. Vellia spoke to Calicchio sev-
eral times about the cards. Calicchio told him that he would
not go into Local 259 and should not sign the cards; if he
signed he could not work at Baron. When Vellia showed
Calicchio the Local 259 cards, Calicchio took them away
from Vellia and said that he would take care of the cards.
Steven Lakeman testified that he began work at Baron in
April 1992. Carlo Oliveri, the Local 259 business representa-
tive, gave him a membership card, but John Calicchio told
him not to sign it. Calicchio had seen Oliveri come into the
shop and Calicchio later went around and collected the Local
259 cards from the men who had them.
General Manager Joseph Cutaia testified that before Re-
spondent took over the dealership from Leitner, he had
worked for the Baron family group for 7-1/2 years. Cutaia
stated that at least one other Baron company has a contract
with Local 88. At a meeting with Carlo Oliveri, Cutaia heard
Oliveri tell Stephen Baron that Respondent had a collective-
bargaining contract with Local 259. Baron denied that he had
a contract with Local 259, but then Cutaia got a copy of the
contract from Respondent’s safe and showed it to Stephen
Baron.
Contrary to the stipulation entered into by Respondent,
Cutaia denied that he gave out cards for Local 88 and he de-
nied that he directed employees in the unit not to join or sup-
port Local 259 and not to sign cards for Local 259. When
confronted with the signed stipulation, Cutaia admitted that
he gave the employees Local 88 cards. Cutaia testified that
he had heard that the employees told Calicchio that they did
not want to belong to Local 259.
b. Failure to remit contributions to the funds
The General Counsel’s brief asserts that Respondent has
admitted that it failed to make certain contributions to the
Local 259 Pension Fund and the Health and Welfare Fund.
However, I cannot find any admission by Respondent in the
record concerning this subject. The General Counsel did not
provide any evidence concerning this matter during the hear-
ing and there is no basis for finding a violation of paragraphs
23 and 24 of the consolidated amended complaint issued on
March 29, 1993. I note that in an undated answer submitted
in response to the consolidated complaint of February 22,
1993, Respondent had denied various allegations relating to
fund payments.
c. Discharge of Parisi, Chilicki, and Chiavola
The repair facility is run on an incentive basis. Simply put,
this system provides that the mechanics are guaranteed 40
hours’ pay per week and are expected to charge 40 hours
labor each week. Any mechanic who is able to charge more
than 40 hours labor for the jobs he has performed will re-
ceive additional compensation. A mechanic who is not able
to charge for 40 hours worth of labor in a week will be paid
his 40-hour guarantee by Baron, but in that week he is losing
money for the Company. As a result, great emphasis is put
on the ability of a mechanic to ‘‘make his guarantee’’ or
‘‘make his hours.’’ Each job performed by a mechanic is
‘‘worth’’ a specified amount of labor. The time that may be
charged for warranty work is specified by the factory and is
generally regarded as being inadequate. It is sometimes dif-
ficult to complete factory warranty work in the time allowed
by the factory specifications. Nevertheless, the mechanic may
charge, and the factory will pay, only for the time allotted
for the warranty job. In contrast the time chargeable for cus-
tomer paid labor is taken from various manuals and is gen-
erally regarded, with some exceptions, as being more gener-
ous than warranty work.8 Thus, customer paid labor is more
lucrative than warranty work; there is more likelihood that
the job can be completed in the chargeable time allotted and
it is even more likely that an efficient mechanic can do the
job in less time than the job is charged for to the customer.
General Manager Cutaia testified that when Baron took
over the facility from Leitner he found that certain men
could not perform their assigned tasks and he fired them.
As stated above, Parisi, Chilicki, and Chiavola were termi-
nated in the spring of 1992. Local 259 took the matter to ar-
bitration and, during one of the days of the arbitration pro-
ceeding, Stephen Baron walked out of the hearing. Local 259
called a strike and the former Leitner employees who were
members of Local 259 picketed on July 28, 1992. These in-
cluded Parisi, Chilicki, Chiavola, Frank Amodeo, Joe
McGarty, Robert Beck, Jack Scott, and Frank Lopriore. A
partial settlement was eventually entered into whereby the
three terminated employees were reinstated as of August 10
and the arbitrator proceeded to issue an award. The award
found that Baron had violated those portions of the collec-
tive-bargaining agreement which provide that a mechanic
who does not meet the minimum number of chargeable hours
of labor may be discharged only upon 30 days’ written no-
tice to the employee and the Union in order to afford an op-
portunity to improve production.9 The arbitrator also found
a violation of the layoff by order of seniority provision. The
arbitrator stated that Respondent Baron had chosen ‘‘not to
coexist with the Union but rather to . . . disregard the
CBA.’’ The award provided that the three employees who
were reinstated should not view the award as preventing ‘‘fu-
ture discipline for lack of productivity. These employees
must be given training and equal consideration and assistance
if they are to become and remain productive technicians. If
after such effort by the Employer . . . an employee contin-
ues not to meet his guarantee, then in all likelihood he would
be subject to warnings which may result in termination for
deficient production.’’
Service Manager Calicchio testified that he had many con-
versations with Stephen Baron about the reinstatement of the
three employees. Before they were actually reinstated,
Calicchio and Cutaia met with Baron in his office, and Baron
listed the unit employees’ names on a sheet of yellow paper
to see if he ‘‘could vote the Union out.’’ The names Baron
listed as being in favor of Local 259 included Chilicki,
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The others in favor of Local 259, according to Baron, were Joe
and Frank from the parts department, and Robert Beck, Kevin, and
John Scott.
11 General Manager Cutaia also helped decide who should attend
factory training.
12 Cutaia contradicted himself about the timing of this conversation
with the Local 259 agent: he stated that it was when Stephen Baron
first took over and then he said that it occurred when the three men
were reinstated.
Chiavola, and Parisi.10 Some time after this meeting, Baron
informed Calicchio that the Company had lost the arbitration
and was forced to take Chilicki, Chiavola, and Parisi back.
Baron told Calicchio and General Manager Cutaia that he did
not want anyone who had picketed outside working in his
building. On this occasion, Baron told Calicchio that he had
30 days to get the three reinstated men out of there.
Although, the arbitrator’s award had specified that the men
must be given training and assistance, Calicchio testified that
on several occasions Stephen Baron told him and Cutaia that
they should not send the three men to any schools and
should not let anyone help them in the shop. Calicchio ex-
plained that car manufacturers conduct schools for mechan-
ics. Every month a manufacturer’s representative comes into
the shop with a schedule of classes being offered, and
Calicchio and the representative decide whom to send to
school.11 Each manufacturer requires a certain amount of
training per year for each authorized repair shop. Calicchio
was certain that both Honda and Pontiac were conducting
classes in August and September 1992. Calicchio stated that
in either August or September 1992, mechanic Ralph Grasso
was sent to Honda air-conditioning school and Steven
Lakeman was sent to school.
Stephen Baron testified that he had many conversations
with Cutaia and Calicchio during which he discussed the re-
instatement of Chilicki, Parisi, and Chiavola. He denied tell-
ing Calicchio to give them work they could not do and he
denied telling Calicchio that he had 30 days to get them out
of the shop. Baron stated that he did not issue any instruc-
tions about training the men, and he said that Cutaia did not
give Calicchio any instructions about training. On cross-ex-
amination, Baron said that he was not aware of the arbitra-
tor’s decision that the men should be trained after their rein-
statement. Baron could not recall whether he told anyone to
write down the names of the employees who picketed Re-
spondent’s premises; he could recall that Calicchio
videotaped the picket line but he could not recall if he in-
structed Calicchio to do so. Baron denied that he discharged
Chilicki, Parisi, and Chiavola because they supported Local
259 or because they picketed on July 28, 1992. The men
were fired because they could not make their 40-hour guar-
antee. Baron gave an affidavit to a Board agent in December
1992. The affidavit denies that he told his employees that he
did not recognize Local 259, denies that he told employees
not to join Local 259, and denies that he told them not to
sign papers for Local 259. The affidavit was taken by the
Board agent in the agent’s own handwriting, but Baron in-
serted into the affidavit in his own hand the following about
Local 259 Business Agent Oliveri: ‘‘Carlo O. is a mis-
chievous, lying troublemaker who is incessantly harassing
Baron Honda Pontiac. I wish for this to stop.’’
Cutaia denied that Stephen Baron told Calicchio he had 30
days to fire the three men. Instead, according to Cutaia,
Baron told Calicchio that he wanted the three men to have
help and to make their 40-hour guarantee. Calicchio was told
to teach the three men in-house and to give them video train-
ing tapes. He was told to send them to school if there was
school. However, Cutaia also testified that there was no man-
ufacturer-sponsored school in August and September, and
that Respondent could not send anyone to school then be-
cause it was the busy season and other technicians would be
away on vacation. Cutaia stated that there are training tapes
in the shop which can be watched on the television in the
customer waiting room. However, Cutaia acknowledged that
he did not tell the three men to watch the tapes on the VCR.
A bit later in his testimony, Cutaia stated that he told
Chilicki there were tapes for him to watch; in fact, he talked
to the men about the tapes ‘‘all the time.’’ Cutaia testified
that he believed that there was training going on among the
technicians, but he could not give any details concerning this
matter. Although Cutaia said that he walks around the serv-
ice department from 12 to 15 times daily for a total of 2 to
3 hours and speaks to the mechanics daily, he testified that
he never asked the three men whether Calicchio was giving
them training nor whether they needed any assistance. Cutaia
testified that he met with Business Agent Oliveri three times
after the men were reinstated. On the first occasion, Oliveri
expressed concern over the warning notices that were being
issued: he asked Cutaia to drop the warning notices, but
Cutaia refused to do this. Oliveri also said the three men
must be sent to school. Cutaia testified that he agreed, but
there was no school at this time. Cutaia also told Oliveri that
the men were trained mechanics and should know their
jobs.12 At first, Cutaia could not recall anything about his
third meeting with Oliveri, but he was then prompted by
leading questions from counsel for Respondent to deny that
he said the men should take 10 days’ pay and get out of the
shop.
Calicchio testified that attending a factory-run school was
considered training. Similarly, if he himself had gone
through a job step by step with a mechanic and showed him
exactly what to do, that would be considered training. How-
ever, helping a mechanic with a task is not considered train-
ing. All the mechanics in the shop occasionally help each
other with tasks, but that is not equivalent to training.
Local 259 Business Agent Carlo Oliveri testified that on
about August 18 he spoke to Calicchio about Parisi, Chilicki,
and Chiavola. He said the men complained that they were
not getting a fair share of the work. Oliveri reminded
Calicchio that the Company was obligated to train the men.
After several more occasions during which he discussed the
situation with Calicchio, Oliveri met on August 24 with both
Calicchio and General Manager Cutaia. Oliveri protested
about the fact that the three men had begun receiving warn-
ing letters as soon as they were reinstated and he asked that
Respondent rescind the letters. Cutaia refused. Oliveri said
that the arbitrator’s award required that the men should be
trained, but Cutaia said, ‘‘We’re not running a training cen-
ter, we don’t send any people to school.’’ Cutaia said a tech-
nician should know what he is doing. According to Oliveri,
Cutaia got very excited and said the three men should take
10 days’ pay and ‘‘get the hell out of here.’’
617BARON HONDA-PONTIAC
13 Vellia has been sent to school at least five times since he began
working for Respondent.
14 An ‘‘A’’ technician or mechanic is supposed to be competent
on all types of jobs and is expected to be able to do any job that
comes into the shop, but an ‘‘A’’ mechanic is not expected to be
able to deal with a new feature on which he has never been trained.
Chiavola was paid at the level of an A-mechanic.
15 A B-technician or mechanic is supposed to be competent on all
but a few highly demanding jobs such as computer problems, elec-
trical problems, and transmission work. B-mechanics are not ex-
pected to work as quickly as A-mechanics. Chilicki and Parisi were
B-mechanics.
Calicchio testified that in December 1992, long after
Chilicki, Chiavola, and Parisi had been discharged, he asked
the other mechanics in the shop to write letters stating that
the three discharged employees had bothered them in the
shop by asking them for help that took them away from their
own work. After Calicchio received handwritten letters from
Steven Singotiko, Steven Lakeman, Ralph Grasso, George
Pertusiello, and Lester Vellia, Calicchio gave the letters to
Stephen Baron who dictated other letters to the secretary,
changing the original language as composed by the men. The
letters, which Baron caused to be typed, stated, in general,
that the signers had trained and taught Chilicki, Parisi, and
Chiavola to perform specified tasks. Calicchio then gave the
typed letters to the men and directed them to sign the typed
documents ‘‘or they would not be there any more.’’ After the
men had signed, Calicchio gave the signed letters to the of-
fice manager of Respondent and she stamped and notarized
them. Vellia testified that the typed letter he signed was not
accurate; contrary to the letter, Vellia did not teach his fel-
low employees to do any work. He assisted them and would
tell them if a job looked right, but he did not teach the other
person by doing the job with him step by step. Singotiko tes-
tified that after he was given the typed letter to sign he pro-
tested that it was not the same letter he had written, but
Calicchio told him not to worry about it. Singotiko stated
that he helped the three discharged men with transmission
jobs, but that he did not train them. On one occasion he
worked on a transmission that had been pulled out by Beck,
Parisi, and Chiavola but they were not present when he did
the job. Pertusiello testified that he never trained the three
men and did not teach them to do any jobs. Pertusiello stated
that he was forced to sign the typed letter even though it was
inaccurate and did not accurately reflect the facts. Pertusiello
testified that he knew why the letter was being written: he
knew that Respondent was trying to get rid of the three men
and he could see the type of work that they were being
given. In particular, Pertusiello could see that Chiavola, who
worked right next to him, was being given mostly warranty
work. Lakeman testified that he did not agree with the typed
letter but that Calicchio told him to sign it anyway. Lakeman
testified in detail about inaccuracies in the letter; although he
showed Parisi a few things, Lakeman did not actually stay
with Parisi while he did the work, nor did he train anyone
else.
At about the same time that Stephen Baron was compos-
ing letters for the unit employees to sign, he wrote a letter
dated December 7, 1992, and told Calicchio to sign it. The
letter states that Calicchio saw to it that Chilicki, Parisi, and
Chiavola were trained but that they were incapable of im-
provement. Calicchio testified that the letter was contrary to
fact.
Vellia, who has been an A-mechanic with Respondent
since June 1992, testified that a mechanic must go to school
for updating at least four times a year.13 Although training
by video is common, schooling is 100 percent better than the
video method because a person actually shows the student
how to do the job. On-the-job training means ‘‘learning by
doing’’ in the shop, but this is not as good as attending a
manufacturer’s school. Vellia stated that if he is given a job
with which he is unfamiliar, he gets a manual in the shop
and reads about the item in the book. Vellia recalled that in
the summer of 1992 when he was helping Chilicki under a
car, Calicchio paged him to the office and told him to ‘‘let
the man die’’; Calicchio said he was not running a charity
and had given Chilicki the job so Respondent could get rid
of him. On another occasion, Vellia was helping Chiavola
with a steering column when Calicchio paged him and told
Vellia to leave Chiavola alone because Chiavola had been
given the work so that he would fail to make his hours on
the job. Singotiko, a B-mechanic since July 1992, testified
that in 1992 he was sent to school five or six times by Re-
spondent. Lakeman, an A-mechanic since April 1992, testi-
fied that Respondent has sent him to school two or three
times. He stated that Honda has school every day of the
week.
According to Calicchio, when Stephen Baron told him that
he had 30 days in which to get the three reinstated men out
of the building, Baron told him to give the men work that
they could not do and to give the men a lot of warning let-
ters. Calicchio occasionally assigned work to the unit em-
ployees, but most of the time the work was assigned by Neil
Gogel, a service writer. Gogel was Calicchio’s subordinate.
Beginning on August 11, the day after the three men were
reinstated, Calicchio began issuing warning letters to them in
compliance with Stephen Baron’s instructions.
On August 11, Calicchio gave Chiavola a transmission
overhaul job because Calicchio knew he could not do the
job. In fact, Chiavola told Calicchio that he could not com-
plete the job in the time allotted to it because he had never
done this type of overhaul before. The warning letter issued
by Calicchio to Chiavola stated that an ‘‘‘A’ technician
should know how to do transmission overhauls.’’14 Calicchio
testified that employee Steven Singotiko is the transmission
specialist in the shop.
On August 11, Calicchio assigned Chilicki an air-condi-
tioning job because he knew that Chilicki would not be able
to do it. In fact, Calicchio had to show Chilicki how to re-
charge the air-conditioner. Calicchio’s warning letter to
Chilicki states that as a ‘‘B technician, this is something you
should know.’’15
On August 14, Calicchio assigned Chiavola a certain en-
gine repair because he knew that Chiavola could not do the
job in the chargeable time allowed. Calicchio issued a warn-
ing letter to Chiavola, who had told him that he could not
complete the work in the time allotted.
On August 14, Chilicki was given a warning letter relating
to a number of factory recalls he was assigned to perform
on a car although management knew that Chilicki could not
do the work. The chargeable time allowed was 12 hours, but
it took Chilicki 1 week to do the job. The warning letter
mentions that Calicchio found grease on the brake pads of
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the car, an extremely dangerous condition. A second letter
about the identical problem was issued to Chilicki on August
19. Chilicki had no idea how the grease got on the brakes
and both he and Calicchio denied Respondent’s suggestions
that Chilicki had deliberately placed it there.
On August 17, Chilicki was asked to diagnose a ‘‘no
start’’ condition on a car. The warning letter issued to him
on August 18 stated that he could not use the diagnostic ma-
chine and had no basic electronics and that he had spent
hours trying to find the cause for the malfunction. Calicchio
testified that he knew Chilicki could not do this work when
it was assigned to him.
On August 20, Calicchio issued a warning letter to
Chiavola stating that the latter had failed to notice that a car
on which he had repaired a transmission needed new brakes
and his failure placed the customer in a dangerous situation.
The letter stated that another technician noticed the brakes
and that the job was ‘‘sold’’ to the customer; it faulted
Chiavola for the dangerous situation and for ‘‘losing
money.’’ Chiavola stated that he recalled that the brakes
were fine and seemed to have 4000 to 6000 miles of travel
remaining. He accused Calicchio of writing the letter to
make him look incompetent.
On August 20, Calicchio issued a warning letter to
Chilicki stating that he had erroneously diagnosed a leaky
windshield and that the dealership called in a glass company
and spent an unnecessary $35 as a result of Chilicki’s incom-
petence.
On August 21, Calicchio issued identical letters to
Chiavola and Chilicki which stated:
Due to your last few weeks performance of not mak-
ing you hours and poor workmanship, you are on 30
days notice as of Friday, August 21, 1992. If your per-
formance doesn’t improve and you do not make your
hours, we shall be forced to terminate your employment
in 30 days.
On the same date, Calicchio gave Parisi the same letter,
but the words ‘‘poor workmanship’’ were crossed out in the
text.
On August 28, Calicchio issued identical letters to
Chilicki, Chiavola, and Parisi. The letters stated, ‘‘You failed
to meet your guarantee of 40 hours for the pay periods of
August 19th and August 26th. This cannot continue.’’
Calicchio testified that the three men could not make 40
chargeable hours because of the type of work they were
given.
On August 31, Calicchio issued a letter to Parisi faulting
him for failing to fix a car that was brought in with a stalling
problem. Calicchio testified that the car had a computer
problem that was beyond Parisi’s capacity to repair and that
Neil Gogel had assigned this work to Parisi because Gogel
knew Parisi could not do it. On the same day, Calicchio
issued a second letter to Parisi stating that Parisi had done
other work on the car but had failed to fix it and that eventu-
ally others had done the work. Calicchio testified that Parisi
did not know how to fix the car.
On August 31, Calicchio issued a letter to Parisi for failing
to fix a car that needed a carburetor overhaul and sending
the car back ‘‘worse than before.’’ Calicchio testified that
management knew that Parisi could not do the job and it was
assigned to him for that reason.
On September 4, Calicchio gave identical letters to
Chilicki, Chiavola, and Parisi, stating that they had not met
their 40-hour guarantee for the pay periods of August 20,
August 27, and September 2, respectively, and threatening
termination if the situation continued. Calicchio testified that
the three men could not make their 40-hour guarantee be-
cause of the type of work they were being given.
On September 4, Calicchio gave Parisi a warning letter
setting forth Parisi’s mistake in diagnosing a car and the fact
that the car had to be towed back to the shop and repaired
a second time. Calicchio testified that Parisi had been given
the work because they knew it was over his head; the car
had a faulty computer and Parisi would not be able to figure
it out.
On September 11 and 18, Calicchio again sent warning
letters to Chilicki, Chiavola, and Parisi informing them that
they had not met the 40-hour guarantee for the pay periods
since August 20, and threatening them with discharge if they
did not improve. Calicchio testified that September 18 was
a Friday and that Stephen Baron told him that day to fire the
three men the next Monday morning.
Calicchio testified that both Chiavola and Chilicki should
have been able to do some of the jobs that were assigned
to them, but management was aware that they could not per-
form up to standard when they were given various assign-
ments. When the shop had been owned by Leitner, Chilicki
had been assigned to do little else but oil changes, even
though he should have been able to do many other tasks.
Calicchio said that on one occasion he did train Chilicki; on
August 11 he showed Chilicki how to recharge an air-condi-
tioner. But neither he nor the other mechanics trained any of
the three men at any other time. Calicchio stated that Re-
spondent has video training tapes that the men can watch and
can take home; video tapes are a common method of training
people.
Vellia, who was named shop foreman after Calicchio was
fired, testified that it is not improper for a B-mechanic to ask
the service manager to assign an A-mechanic to a job that
is beyond the B mechanic’s capabilities. Lakeman testified
that he has asked his service manager and other employees
for help and that he has never been given a warning letter
for requesting assistance. Brian Robinson, the service man-
ager of Respondent since April 1993, testified that he does
not knowingly assign work to a mechanic that is beyond the
man’s ability or training. Robinson would not force a techni-
cian to do a job he was not trained for, but would send him
to school if the employee showed an interest in learning the
task.
All the employees in the shop wear uniforms provided by
Respondent. Chilicki, Parisi, and Chiavola had been required
to turn in their uniforms when they were terminated in early
1992, and they were thus entitled to new uniforms when they
were reinstated on August 10, 1992. Calicchio testified that
shortly after the three men were reinstated, Stephen Baron
told him not to order uniforms for Chilicki, Parisi, and
Chiavola because ‘‘they’re not going to be there that long.’’
Calicchio testified that other new employees hired about this
time received their uniforms promptly. Local 259 Business
Agent Oliveri testified that he reminded Calicchio that
Chilicki, Parisi, and Chiavola needed uniforms about 2
619BARON HONDA-PONTIAC
16 In August 1992, Calicchio had leased a car for his son from a
company controlled by the Baron brothers. The car was later repos-
sessed when the payments were 2 weeks in arrears.
weeks after they were reinstated. Calicchio replied that they
had not yet been measured although Oliveri remarked that
some newly hired employees already had their uniforms.
d. Failure to pay average rate for vacations
As discussed above, unit employees of Respondent are
paid on an incentive basis and may increase their weekly
earnings above the 40-hour-per-week rate. The collective-bar-
gaining agreement provides that employees shall receive a
certain number of weeks of vacation with pay depending on
seniority. It states, ‘‘Incentive employees shall be granted va-
cation pay on the basis of average earnings.’’ Business Agent
Oliveri testified that the industry practice was to calculate the
average weekly earnings on the basis of an individual em-
ployee’s W-2 form from the previous year. Oliveri stated that
the men in the shop informed him that they were receiving
vacation pay but that the amounts had not been calculated
properly. Shop Steward Frank Amodeo was employed as a
mechanic with Leitner and continued to work for Baron.
Amodeo testified that the employees’ vacations were paid on
average weekly pay based on their W-2 forms while Leitner
owned the dealership. Amodeo spoke to General Manager
Cutaia and Office Manager Gilda Tricarico about Baron’s
failure to compute vacation pay based on the previous year’s
W-2 form. These two supervisors told Amodeo that they
would not use the W-2 form but would base vacation pay
on what the employees were averaging currently. Employee
George Pertusiello testified that his vacation pay had been
calculated on the basis of his last year’s W-2 form while he
was employed by Leitner for over 4 years. However, when
Baron took over the shop, his vacation pay was no longer
calculated on the proper basis. Tricarico testified that the
1992 and 1993 vacation pay for the unit employees was not
calculated based on the previous year’s W-2 form. In 1992,
the employees received vacation pay based only on straight
time and in 1993 the average weekly pay was calculated
based on the 52 weeks before the employee went on vaca-
tion. These employees included Scott, Pertusiello, Lakeman,
Singotiko, Vellia, and Grasso. Further, Respondent did not
pay Chilicki, Parisi, and Chiavola any vacation pay when it
discharged them on September 21, 1992.
B. Discussion and Conclusions
1. Credibility of the witnesses
I find that the unit employees of Respondent, both past
and present, testified in a credible and forthright manner.
They were cooperative on cross-examination and did not
seem to tailor their answers to achieve any particular result.
I shall credit their testimony. I find that Oliveri testified in
a credible manner and I shall rely on his testimony.
Respondent has mounted a strong attack on Calicchio’s
testimony. Calicchio gave two affidavits to a Board agent be-
fore the instant hearing. The first was given in December
1992; Calicchio testified that he drove to the Regional Office
with Stephen Baron on this occasion and discussed the case
during the ride. Calicchio’s affidavit stated that Chilicki,
Parisi, and Chiavola were fired in September because they
were unable to do their work. In January 1993, Stephen
Baron discharged Calicchio because the repair shop had re-
ceived a poor customer satisfaction index rating in a survey
conducted by the manufacturers. Calicchio denied the sug-
gestion put to him by counsel for Respondent that he was
fired because Stephen Baron had accused him of stealing.
After his discharge, Calicchio went to work for another car
dealership. Some time after this, Calicchio gave a second af-
fidavit to a Board agent in which he supplied much of the
evidence described by his testimony here. In the spring of
1993, Cutaia called Calicchio at his new job and offered
Calicchio a car for his son’s use if Calicchio would forget
about testifying; however, Cutaia never called again about
this offer.16 Instead, a few weeks later, Cutaia called
Calicchio and offered him his old job with Respondent.
Calicchio refused. Calicchio testified that some time after he
left Respondent he heard that Stephen Baron had accused
him of stealing. He called neither Cutaia nor Baron to speak
to them about this. Cutaia gave an entirely different version
of these events: although denying that Calicchio ever threat-
ened to fabricate testimony to favor Local 259, Cutaia stated
that Calicchio called him and threatened to testify on behalf
of the Union if Stephen Baron did not stop telling people
that Calicchio had taken money from body shops with which
Respondent did business. I found that in general Cutaia had
a poor recollection, gave inconsistent descriptions of events
at different points in his testimony, gave testimony that
sounded contrived, and that his testimony differed from the
documentary evidence in the record. As I observed Cutaia,
I formed the impression that he was determined to give only
the type of testimony that would favor Respondent Baron. I
do not find that Cutaia is a credible witness and I shall not
rely on his testimony where it is contradicted by reliable evi-
dence. In contrast, I find that Calicchio gave consistent testi-
mony which in many cases was confirmed by the testimony
of other witnesses. I credit him that he gave his first affidavit
containing inaccurate statements in order to favor Respond-
ent and preserve his job. Thus, I credit Calicchio’s testimony
and I shall rely on it.
Stephen Baron gave testimony that contradicted the docu-
mentary evidence here and that was contrary to the stipula-
tion entered into by Respondent. Further, his testimony was
inconsistent and shifting and he professed not to recall mat-
ters that were central to the instant case, such as the fact that
the arbitrator’s award required Respondent to give training to
Chilicki, Parisi, and Chiavola. I do not credit Stephen Bar-
on’s testimony.
Gilda Tricarico gave testimony that was contrary to the
documentary evidence here and she could not recall many
matters which she would be expected to know. I shall not
credit her testimony where it is contradicted by more reliable
evidence.
2. Confiscation of cards and threat of discharge
I credit Calicchio that he threatened unit employees that
they would be discharged if they signed authorization cards
for and joined Local 259. I credit Vellia and Lakeman that
Calicchio confiscated Local 259 cards from employees in the
shop. By these acts, Respondent restrained and coerced its
employees and interfered with their rights in violation of
Section 8(a)(1) of the Act. The threats and confiscation of
cards, viewed with the unfair labor practices already found
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Stephen Baron also instructed that the three men were not to re-
ceive uniforms because they would not be in the shop for any length
of time.
above, were designed to destroy the majority status of Local
259 among the unit employees in violation of Section 8(a)(5)
and (1) of the Act.
3. Discharge of Chilicki, Parisi, and Chiavola
As set forth above, Respondent has admitted many facts
which establish animus against Local 259. Respondent has
admitted taking actions which were designed to oust Local
259, the representative of the unit employees, and replace it
with Local 88. Respondent, which sought to disavow its rela-
tionship with Local 259, has admitted to threatening its unit
employees if they exercised their rights under the Local 259
collective-bargaining agreement, and Respondent has admit-
ted bypassing Local 259 and dealing directly with its unit
employees. Further, the testimony shows that Stephen Baron
was calculating how many votes he could garner to get Local
259 out of the shop, and that Baron had stated to his super-
visors that he did not want anyone who had joined the Local
259 picket line working in his building. I find that the Gen-
eral Counsel has provided more than ample evidence of Re-
spondent’s animus against Local 259.
The arbitration award found that Respondent had chosen
not to coexist with Local 259 but rather to disregard the col-
lective-bargaining agreement. The arbitrator found that Re-
spondent had violated the contract in its discharges and lay-
off of the three men, but warned that they could be subject
to discipline for deficient production if Respondent made an
‘‘effort’’ to give them ‘‘training and equal consideration and
assistance.’’ The evidence shows that Stephen Baron deter-
mined that he would not make the effort called for by the
arbitrator; instead he told his supervisors that they had 30
days to get Chilicki, Parisi, and Chiavola out of the shop.
The conclusion is inescapable that Baron gave these instruc-
tions because the three employees had exercised their rights
under the Local 259 collective-bargaining agreement, because
they had joined the picket line at Respondent’s premises and
because he knew that they supported Local 259.
The evidence shows that from the first day Chilicki, Parisi,
and Chiavola were reinstated, Respondent gave the three men
jobs they could not perform or jobs they could not perform
in the chargeable hours allotted, told other mechanics not to
help them and denied them the training required by the arbi-
tration award.17 The testimony of all the witnesses taken to-
gether shows that in the industry, training means learning by
doing or by seeing the job done step by step. The credible
evidence shows that, although there were factory training
school sessions available, and although other unit employees
attended these schools in August and September 1992, Re-
spondent did not send Chilicki, Parisi, and Chiavola for train-
ing. Further, on several occasions, Service Manager
Calicchio prevented other mechanics from helping Chilicki
and Chiavola. Calicchio himself trained only Chilicki and
only on one occasion. The record shows that the most effec-
tive and most common way of training the unit employees
was to send them to the manufacturers’ schools; the employ-
ees who testified have all been sent to school several times
since they began working for Respondent. Although Re-
spondent attempted to show that the mechanics could watch
training tapes, I find that neither Cutaia nor any other super-
visor ever told Chilicki, Parisi, or Chiavola that they should
watch training tapes at the shop or at home. Although Busi-
ness Agent Oliveri asked Cutaia to provide training to the
three men, Cutaia refused and said that the men should take
10 days’ pay and ‘‘get the hell out’’ of the shop. Respond-
ent’s current service manager testified in accord with the tes-
timony of the General Counsel’s witnesses: it is not proper
to assign a technician a job which he has not been trained
to accomplish. Yet the record shows that Respondent con-
stantly assigned work to Chilicki, Parisi, and Chiavola that
was beyond their training or that they were not quick enough
to finish in the chargeable time allotted. This was done so
that the three men would repeatedly fail to make their 40
hours and so that Respondent could immediately begin to
issue warning notices in accordance with the collective-bar-
gaining agreement. In addition, the record shows that warn-
ing letters were occasionally issued for failings that were ar-
guably not the fault of the mechanic involved. Because one
of the grounds cited by the arbitrator for reinstating the three
men was that warning notices had not been sent to the em-
ployees and Local 259 as required by the contract, Stephen
Baron was determined that there would be a plethora of
warning notices this time around.
I find that the General Counsel has met the burden im-
posed by Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), and has shown that Respondent harbored
animus against Local 259 and against the three men because
of their support for and activities in behalf of Local 259. The
General Counsel has also shown that this union animus was
a motivating factor in the failure to train the men and give
them equal consideration in the assignment of work, in the
decision to issue them with a multitude of warning notices
and in the discharge of the three men on September 21,
1992. The burden thus shifts to Respondent to show that it
would have failed to send the men for training and assigned
jobs disparately, issued warning notices, and discharged the
men even if they had not supported Local 259. I find that
Respondent has failed to carry this burden. Respondent ar-
gues that the three men could not do jobs that are reasonably
expected of ‘‘A’’ and ‘‘B’’ mechanics and that they could
not complete tasks in the chargeable hours and so make their
40-hour guarantee per week. I have found, however, that it
was Respondent’s own actions that prevented Chilicki, Parisi,
and Chiavola from having a fair opportunity to show what
they could do. It was Respondent’s own actions that denied
the men the training that they concededly required and it was
Respondent’s own actions that ensured they would be given
tasks beyond their capabilities. It is possible, as Respondent
urges, that the three men could not be trained or would not
be trained, but Respondent itself has made it impossible to
determine whether under lawful circumstances the three men
were incapable of improvement. Respondent was under an
arbitrator’s order to give training and equal consideration and
assistance to the men, but from the day of their reinstatement
Respondent determined to rid itself of the men because they
supported Local 259 and to use denial of training and assign-
ment to inappropriate jobs as tools in gaining its object. Re-
spondent, having created the situation where it cannot be
fairly determined whether the men would have been fired
621BARON HONDA-PONTIAC
18 See Electronic Reproduction Service Corp., 213 NLRB 758 fn.
2 (1974).
even in the absence of their protected activity, cannot be
heard to complain when no such finding is made. Thus, I
find that Respondent violated Section 8(a)(1) and (3) of the
Act when it failed to give training and equal consideration,
when it issued warnings notices and when it discharged
Chilicki, Chiavola, and Parisi. This conduct on the part of
Respondent constituted a breach of the arbitrator’s award and
I also find that Respondent violated Section 8(a)(5) of the
Act.18
4. Failure to pay average rate for vacations
The collective-bargaining agreement in effect between Re-
spondent and Local 259 provides that unit employees shall
be entitled to vacation with pay for a number of weeks
which varies with the length of service, and that, ‘‘Incentive
employees shall be granted vacation pay on the basis of aver-
age earnings.’’ It is evident that in order to calculate the pay
due per week to a vacationing employee one must calculate
the weekly pay earned by the employee. Here, the contract
provides that the weekly pay for purposes of vacation shall
be computed on the basis of ‘‘average earnings.’’ The credi-
ble evidence in the record is that the contract has been inter-
preted in the industry so that the average weekly pay of a
unit employee is calculated by figuring the average earnings
per week of the employee based on the W-2 form for the
last year. Respondent’s witness admitted that for the year
1992, vacation pay had been paid on a straight-time basis
without regard to average earnings of the incentive employ-
ees. Furthermore, no prorated vacation pay was paid to
Chilicki, Parisi, and Chiavola when they were discharged in
September 1992. For the year 1993, Respondent calculated
vacation pay on the basis of the individual’s earnings for the
prior 52 weeks and not based on the prior year’s W-2 form.
The failure to pay vacation pay according to the terms of the
collective-bargaining agreement was a unilateral change in
the wages and terms and conditions of employment and con-
stituted a violation of Section 8(a)(5) and (1) of the Act.
5. Deferral to arbitration
Respondent urges that all of its actions which are alleged
to violate the Act as well as to constitute violations of the
collective-bargaining agreement should be deferred to arbitra-
tion under the contract. The General Counsel urges that the
failure to pay proper vacation pay, taken together with the
bypassing of Local 259, the direct dealing with employees,
and the threats of reprisal against employees for their at-
tempts to enforce the contract amount to a repudiation of the
collective-bargaining agreement in violation of Section
8(a)(5). the The General Counsel cites Caamano Bros., 304
NLRB 24 (1991). In Collyer Insulated Wire, 192 NLRB 837
(1971), the Board stated that it would defer a dispute relating
to the interpretation of a collective-bargaining agreement
where the parties had a ‘‘long and productive’’ relationship
and no claim was made of enmity by the employer to the
employees’ exercise of protected rights. In the instant case,
by contrast, Respondent has admitted to a long list of actions
which constitute attempts to coerce and restrain employees in
the exercise of their Section 7 rights and which constitute at-
tempts to undermine the position of Local 259. Indeed, Ste-
phen Baron, who had personally signed the document adopt-
ing the Local 259 contract, began his ownership of the shop
by stating that he had no contract with the Union and by de-
clining to enforce many provisions of the contract. Moreover,
Respondent has admitted threatening the employees with re-
prisals for their exercise of grievance rights under the con-
tract. Under these circumstances, deferral would be highly
inappropriate.
CONCLUSIONS OF LAW
1. Local 259, United Automobile, Aerospace and Agricul-
tural Implement Workers of America is the exclusive collec-
tive-bargaining representative of the employees of Baron
Brothers Auto Group, Inc. d/b/a Baron Honda-Pontiac, in the
following appropriate unit:
All service shop employees employed by Respond-
ent, excluding office clerical employees, new and used
car salesmen, guards, watchmen, professional employ-
ees and supervisors as defined in the Act.
2. By informing its employees that it did not recognize
Local 259 as the exclusive collective-bargaining representa-
tive of its employees in the appropriate unit and by inform-
ing its employees that it did not have a collective-bargaining
agreement with Local 259, Respondent violated Section
8(a)(5) and (1) of the Act.
3. By directing its unit employees to sign authorization
cards and medical benefit applications of Amalgamated
Workers Local 88, Retail, Wholesale and Department Store
Union, AFL–CIO, Respondent violated Section 8(a)(2) and
(1) of the Act.
4. By directing its unit employees to refrain from joining
or supporting Local 259 and to refrain from signing Local
259 membership and dues-checkoff applications, Respondent
violated Section 8(a)(5) and (1) of the Act.
5. By dealing directly with the unit employees and solicit-
ing them to enter into individual agreements for the purpose
of modifying the terms of the collective-bargaining agree-
ment relating to holiday pay and vacation pay, Respondent
violated Section 8(a)(5) and (1) of the Act.
6. By failing to pay vacation pay according to the terms
of the collective-bargaining agreement in 1992 and 1993, Re-
spondent violated Section 8(a)(5) and (1) of the Act.
7. By delaying in furnishing necessary information to
Local 259 for the investigation and processing of grievances,
Respondent violated Section 8(a)(5) and (1) of the Act.
8. By directing unit employees to refrain from filing griev-
ances with Local 259 and by directing them to present their
grievances directly to Respondent, the Respondent violated
Section 8(a)(5) and (1) of the Act.
9. By threatening unit employees with reprisals unless they
withdrew their grievances, Respondent violated Section
8(a)(5) and (1) of the Act.
10. By threatening unit employees with discharge if they
signed authorization cards for Local 259 and by confiscating
these cards from employees, Respondent violated Section
8(a)(1) of the Act.
11. By failing to give training and equal consideration to
and by issuing warning notices to and discharging Louis
Parisi Jr., Bartosz Chilicki, and George Chiavola, Respondent
violated Section 8(a)(1), (3), and (5) of the Act.
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 If no exceptions are filed as provided by Sec. 102.46 of the
Boards Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
20 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
12. The General Counsel has not proved that Respondent
engaged in any other violations of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Respondent must also make whole the
employees, with interest, for its failure to pay vacation pay
in 1992 and 1993 in accordance with the provisions of the
collective-bargaining agreement.
Because of the Respondent’s egregious and widespread
misconduct, demonstrating a general disregard for the em-
ployees’ fundamental rights, I find it necessary to issue a
broad order requiring the Respondent to cease and desist
from infringing in any other manner on rights guaranteed
employees by Section 7 of the Act. Hickmott Foods, 242
NLRB 1357 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
The Respondent, Baron Brothers Auto Group, Inc. d/b/a
Baron Honda-Pontiac, Patchogue, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Repudiating the collective-bargaining agreement with
Local 259 and informing its employees that it does not rec-
ognize Local 259 as the representative of its unit employees.
(b) Directing its unit employees to sign authorization cards
and medical benefit applications of Local 88.
(c) Directing its unit employees to refrain from joining or
supporting Local 259 and to refrain from signing Local 259
membership and dues-checkoff applications.
(d) Dealing directly with unit employees and soliciting
them to enter into individual agreements for the purpose of
modifying the terms of the collective-bargaining agreement.
(e) Failing to pay vacation pay according to the terms of
the collective-bargaining agreement.
(f) Delaying in furnishing information to Local 259 nec-
essary for the investigation and processing of grievances.
(g) Directing unit employees to refrain from filing griev-
ances with Local 259 and directing them to present their
grievances to Respondent.
(h) Threatening unit employees with reprisals unless they
withdraw their grievances.
(i) Threatening unit employees with discharge if they sign
authorization cards for Local 259 and confiscating cards
from employees.
(j) Failing to give training and equal consideration to and
issuing warning notices to and discharging Louis Parisi Jr.,
Bartosz Chilicki, and George Chiavola.
(k) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make its unit employees whole for vacation pay it un-
lawfully computed in 1992 and 1993, with interest, in the
manner set forth in the remedy section above.
(b) Offer Louis Parisi Jr., Bartosz Chilicki, and George
Chiavola immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against them, in the manner set
forth in the remedy section of the decision.
(c) Offer equal consideration and training to Parisi,
Chilicki, and Chiavola upon their reinstatement.
(d) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this has
been done and that the discharges will not be used against
them in any way.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its facility in Patchogue, New York, copies of
the attached notice marked ‘‘Appendix.’’20 Copies of the no-
tice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the 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 the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.