Bill Scott Oldsmobile

National Labor Relations Board - Board Decisions

Feb 9, 1987

282 N.L.R.B. 1073 (N.L.R.B. 1987)

i
BILL SCOTT OLDSMOBILE
Bill Scott Oldsmobile and Stephen Melcher and
John H. Latocha and Daniel Cerul and Stephen
B. Sackett. Cases 3-CA-11097-1, 3-CA-
11097-2, 3-CA-11097-3, and 3-CA-11097-4
9 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 26 September 1983 Administrative Law
Judge Stephen J. Gross issued the attached deci-
sion. The General Counsel and the Respondent
each filed exceptions and supporting briefs.
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, 1 and
conclusions as modified and to adopt the recom-
mended Order as modified.
1. The judge found that the Respondent did not
violate Section 8(a)(1) of the Act by discharging
Stephen Melcher on 4 May 1982.2 He noted that
there was an apparent inconsistency between that
finding and his finding that the Respondent violat-
ed Section 8(a)(1) of the Act by discharging John
LaTocha at the same time and for the same alleged
reasons, but concluded that in the case of LaTocha
the reasons the Respondent gave for the discharge
were pretextual, and in Melcher's case they were
not. We disagree with this conclusion.
1 The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings
The Respondent has excepted to the judge's finding that Service Man-
ager Laudig continued to hold his position with the Respondent at the
time of the unfair labor practice hearing in this proceeding There is no
evidence in the record that Laudig in fact remained in the Respondent's
employ at the time of the hearing The judge's conclusion that the Re-
spondent violated Sec. 8(a)(1) of the Act by discharging employee John
LaTocha on 4 May 1982 is not, however, in any way dependent upon his
erroneous conclusion that Laudig continued to hold his position with the
Respondent at the time of the hearing. As the judge noted, the testimony
of LaTocha's brother, William, that Laudig stated that LaTocha's dis-
charge was related to the "tension" he caused remained unrebutted and
unexplained
2 The judge also found that the Respondent violated Sec. 8(a)(1) by
discharging employee John LaTocha, by threats made by Owner Bill
Scott on 29 April 1982, and by its attorney's interrogating its employees
in preparation for the instant hearing without meeting all the prerequi-
sites of Johnnie's Poultry Co., 146 NLRB 770, 775 (1964), enf. denied 344
F.2d 617 (8th Cir. 1965) Members Johansen and Babson adopt these find-
ings for the reasons set forth by the judge and, with respect to the latter
finding, for reasons further set forth in sec 2 below Chairman Dotson
agrees that the discharge of LaTocha violated Sec. 8(a)(1) but for reasons
explained in his dissent below would dismiss these other violations found
by the judge.
1073
The events leading up to Melcher's discharge are
as follows. On 7 April 1982,3 just about the same
time that William Scott's acquisition of the Re-
spondent was completed, Scott gathered together
and spoke with about 20 service department ' and
body shop employees. At' some point during the
meeting, the Respondent's service manager Joseph
Grassel spoke with Melcher off to the side. Grassel
told Melcher that Scott was a good man to work
for and a fair man. Melcher replied that he "cer-
tainly hoped so" because the employees had filed
unfair labor practice charges against the Respond-
ent's 'predecessor, and "it could happen to him
[Scott] if he wasn't." Shortly thereafter, during, a
conversation with a number of employees at a
neighborhood establishment close to the Respond-
ent's place of business, Grassel learned that Mel-
cher, together with employees LaTocha and Ste-
phen Sackett, had been instrumental in the success-
ful union campaign to organize the employees of
the Respondent's predecessor.
On the afternoon of 29 April, after learning that
the service department and body shop employees
had earlier temporarily stopped work to protest the
Respondent's discharge of Daniel Cerul, Scott ap-
proached a group of six employees who were gath-
ered in the vicinity of the service department's cof-
feepot. When in.the course of the ensuing conver-
sation two employees, LaTocha and Orzel, voiced
concern over recently implemented changes in the
employees' working conditions, Scott told them
that if they did not like their jobs they should
leave. At this point, Melcher approached the group
and addressed Scott. Melcher suggested that Scott
was a "liar" for, in Melcher's view, reneging on a
promise not' to make any changes adverse to the
employees.
Melcher believed that a new representation elec-
tion might be required in order for the employees
to retain their certified bargaining representative.
On 3 May he therefore openly handed out union
authorization cards to service department employ-
ees in their work areas during working hours. Mel-
cher also gave three cards to body shop employee
Stephen Sackett so that Sackett could sign up the
body shop employees. Sackett had the three em-
ployees, including himself, sign the cards, and
return them to Melcher.
The following day, 4 May, Melcher, together
with LaTocha and Sackett, was placed on "indefi-
nite lay-off' attributed to "economic conditions."
The layoff was in fact a discharge in that the Re-
spondent did not recall Melcher although job open-
ings for which he was qualified have occurred and
8 All dates herein are 1982.
282 NLRB No. 140
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been filled by persons never previously in the Re-
spondent's employ. The layoffs of LaTocha and
Melcher were made in accordance with a decision,
reached before 4 May, that the service department
was overstaffed and that the most efficient way to
staff the department was with broadly skilled me-
chanics rather than with specialists. LaTocha was a
specialist doing only front-end work. Melcher's
work was limited to heavy engine work, mostly
Omega engine overhauls, together with all the
work on the few foreign cars that came, into the
shop.
The judge found that the asserted justification
for the discharge of LaTocha was pretextual. How-
ever, he concluded that the evidence failed to sup-
port the claim that the Respondent discharged
Melcher for impermissible reasons despite the simi-
larities between the discharges of LaTocha and
Melcher. (Those similarities are that Melcher, like
LaTocha, was known to be one of the employees
mainly responsible for organizing the predecessor's
employees and had voiced employee complaints
about working conditions to the Respondent, and
that the Respondent, as in the case of LaTocha,
had failed to explain why it selected Melcher for
discharge rather than any of the other mechanic
specialists.) Noting the apparent inconsistency in
findings, the judge attempted to distinguish' LaTo-
cha's discharge by stressing that the evidence dem-
onstrated that a supervisor had suggested that the
Respondent's stated reasons for discharging LaTo-
cha were pretextual and that LaTocha was the pre-
eminent employee spokesman while Melcher "gen-
erally stayed on the sidelines." He also stated that
the Respondent had exhibited no union animus and
that the record as a whole shows that Scott would
not hold a grudge against an employee because he
was active in organizing a union some years ago
under a different owner. We do not believe that
the inconsistency in the judge's findings can be so
easily dismissed.
Initially, we do not agree with the judge's reli-
ance on the absence of "union" animus. It may be
true that the record as a whole does not show that
Scott would hold a grudge against an employee be-
cause of past union activities. The Respondent has,
however, threatened employees who have exer-
cised their protected rights since the Respondent's
purchase of the dealership. When employees ex-
pressed concern about changes in operation, Scott
told the employees that if they did not like it, they
could get out, leave their jobs. The judge properly
found that Scott's statements were threats that fur;
ther complaints could result in discharge and indi-
cated to employees that it would be futile to
engage in concerted activity to improve their
working conditions. In addition, the Respondent
unlawfully discharged employee John LaTocha for
engaging in protected concerted activities. Al-
though the Respondent's actions may not have
been motivated by a grudge due to union activities
undertaken in the somewhat distant past, they
clearly express hostility toward present concerted
activity by employees.4 Under these circumstances,
we find that the absence of "union" animus is no
more relevant to the determination of the lawful-
ness of Melcher's discharge than it was to that of
LaTocha's discharge.
Further, it is apparent that the similarities be-
tween the discharges of LaTocha and Melcher are
greater that any apparent dissimilarities . In particu-
lar, and most obvious, the Respondent sought to
defend the two discharges on identical grounds
and, as the judge noted, failed to show why it
chose to discharge Melcher and LaTocha rather
than other specialists. Melcher, like LaTocha, was
also ' a vocal employee spokesman. In this regard,
we deem it immaterial that he was less aggressive
and outspoken in this role than was LaTocha.
Thus, the record demonstrates that: (1) the Re-
spondent knew Melcher was a principal force in
organizing the predecessor's employees; (2) Mel-
cher had indicated that he would file unfair labor
practice charges against the Respondent if he
deemed it necessary; (3) he suggested to Scott that
Scott was a "liar" for, in his 'view, reneging on a
promise not to make changes adverse to the em-
ployees; and (4) on-the day prior to 'his discharge,
Melcher openly solicited union authorization cards.
Finally, Melcher, again like LaTocha, was dis-
missed midafternoon and midweek, without any
notice.
The record, then, demonstrates that the Re-
spondent exhibited hostility to protected concerted
activity, that the Respondent knew that Melcher
was a vocal employee spokesperson, and that Mel-
cher was dismissed midafternoon and midweek,
without any notice. On the basis of these facts, we
find that the General_ Counsel has established a
prima facie case that Melcher was discharged be-
cause of his protected activities. We further find
that the Respondent has failed to meet its burden
of establishing by a preponderance of the evidence
that Melcher would have been discharged for le-
gitimate reasons even absent his protected agtivi-
ties. In this connection, we particularly rely on the
4 Chairman Dotson, for reasons explained in his dissent , does not find
that Scott 's statements to employees concerning their response to the Re-
spondent 's changes in operations were unlawful . Therefore, in agreeing
with his colleagues that Melcher's discharge was unlawful , he relies only
on the Respondent's discharge of employee John LaTocha as demonstrat-
ing the Respondent 's animus against protected concerted activity
BILL SCOTT OLDSMOBILE 1075
Respondent's failure to explain its selection of Mel-
cher for discharge, rather than any` of the other
mechanic specialists. 5 Accordingly, we find that
the Respondent violated Section 8(a)(1) of the Act
by discharging Stephen Melcher on 4 May.
2. We find the Respondent violated Section
8(a)(1) when its attorney questioned eight employ-
ees in preparation for the unfair labor practice pro-
ceeding. Since Johnnie's Poultry Co., 146 NLRB
770 (1964), enf. denied 344 F.2d 617 (8th Cir.
1965), the Board has consistently required an em-
ployer to administer three warnings to each em-
ployee it interviews in preparation for an unfair
labor practice proceeding: instruct him of "the pur-
pose of the questioning, assure him that no reprisal
will take place, and obtain his permission on a vol-
untary basis." In the 21 years since that decision's
issuance, the Johnnie's Poultry requirements have
proved effective as a prophylactic measure to
temper the coerciveness of such interviews while
permitting employers considerable latitude to ques-
tion employees in preparation for trial. The safe-
guards are not unduly onerous or hampering and
provide employers with clear guidance on how to
avoid unfair labor practice liability in pursuing the
legitimate interest of preparing an unfair 'labor
practice defense. The benefit of this clarity out-
weighs any inconvenience to the employer, espe-
cially in view of the significant Section' 7 rights the
Board is seeking to protect.
Thus, we agree with the judge that the Respond-
ent's attorney Vaughn Lang violated Section
8(a)(1) by failing to administer all three Johnnie's
Poultry warnings in each interview he conducted
before trial. Specifically, the judge found that Lang
did not instruct employees on the purpose of his
questioning or inform them that their cooperation
was voluntary. A similar situation arose in Stand-
ard-Coosa-Thatcher, Inc., 257 NLRB 304 (1981),
enfd. 691 F.2d 1133, 1140-1141 (4th' Cir. 1982),
where the employer's counsel gave 'all but one of
70 employees all, three warnings. Regarding one
employee, however, two of the Johnnie's Poultry
warnings ` were omitted. The Board, and the court
enforcing the Board's Order found that this partial
warning fell short of the requirements of Johnnie's
In contrast, the Respondent offered a valid reason for selecting Ste-
phen Sackett for discharge from the body shop The credited testimony
demostrates that Scott decided-to reduce the body shop work force by
one, that Sackett was one of two body shop employees who performed
bodywork but did not paint while the third employee painted but did no
bodywork, and that Scott decided to dismiss Sackett because he had
many years less seniority than the other employee who did bodywork ex-
clusively.
Poultry ' and that the respondent violated Section
8(a)(1).6
Finally, we fmd our dissenting colleague' s reli-
ance on Rossmore House77 and Sunnyvale Medical
Clinic8 misplaced. The longstanding exception in
Johnnie's Poultry to the Board's usual treatment of
interrogations reflects the difference between the
nature and circumstances of an employer' s inter-
viewing of employees in preparation for litigation
and other interrogations generally. Thus, in John-
nie's Poultry the Board recognized that an employ-
er's interviewing of employees in preparation for
litigation has a pronounced inhibitory effect on the
exercise of Section 7 rights, which includes protec-
tion in seeking vindication of those rights from em-
ployer interference, restraint, or coercion. Despite
the inherent danger of coercion in such interviews,
the Board permitted an employer to exercise the
privilege of interrogating employees in limited situ-
ations without incurring 8(a)(1) liability, but estab-
lished specific safeguards designed to minimize the
coercive impact of such interrogations. According-
ly, we fmd that the nature and circumstances of
employer interviews in preparation for litigation
justify a more formal standard for ensuring that
employees' rights are protected, and that the ex-
ception in Johnnie's Poultry from the Board's usual
treatment of interrogations is fully warranted.
In view of the foregoing, we adhere to the
Board's application of Johnnie's Poultry and affirm
the judge's 8(a)(1) finding.9
AMENDED CONCLUSIONS OF LAW
Add the following as Conclusion of Law 4 and
renumber the remaining Conclusions of Law.
"4. The Respondent violated Section 8(a)(1) of
the Act by discharging Stephen Melcher on 4 May
1982 for having engaged in protected concerted ac-
tivity."
AMENDED REMEDY
As the Respondent has been found to have en-
gaged in unfair labor practices, we shall order that
in addition to taking those actions recommended in
that section of the "judge's decision entitled "The
6 See also Roadway Express, 239 NLRB 653 (1978) (failure to give one
of the three warnings-assurances against reprisal-found to violate Sec.
8(a)(1))-
7 269 NLRB 1176 (1984), enfd. sub nom Hotel & Restaurant Employees
Local 11 P. NLRB, 760 F 2d 1006 (9th Cir 1985)
8-277 NLRB 1217 (1985)
9 Our colleague points to some questioning by the certain courts of ap-
peals of the Board's application of the Johnnie's Poultry rule We note
that other courts of appeals have enforced the Board's application of
these safeguards. See Standard-Coosa-Thatcher Inc Y. NLRB, 691 F 2d
1133 (4th Cir. 1982); NLRB v Tamper, Inc., 522 F 2d 781, 787 (4th Cir
1975), Auto Workers v. NLRB, 392 F 2d 801, 809 (D C. Cir 1967), NLRB
v. Neuhoff Bros Packers, 375 F.2d 372, 376-378 (5th Cir 1967).
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Remedy," it also takes the specific action set forth
below, designed to effectuate the policies of the
Act.
Having found that the Respondent discriminator-
ily discharged Stephen Melcher, we shall order
that it offer him reinstatement and make him whole
for any loss of earnings and other benefits, comput-
ed on a quarterly basis from date of discharge to
date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as comput-
ed in Florida Steel Corp., 231 NLRB 651 (1977).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge- as modified below and orders that the Re-
spondent, Bill Scott Oldsmobile, Syracuse, New
York, its officers , agents , successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraphs, 2(a)
and (b).
"(a) Offer John LaTocha and Stephen Melcher
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly 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.
"(b) Remove from its files any reference to the
unlawful discharges of John LaTocha and Stephen
Melcher, and notify these employees in writing that
this has been done and that the discharges will not
be used against them in any way."
2. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
My colleagues have adopted the judge's finding
that the Respondent violated Section 8(a)(1) by its
attorney Vaughn ,Lang's interviews, in preparation
for the instant hearing, of eight employees without
providing all three warnings required by Johnnie's
Poultry Co.' I disagree.
The judge found that eight employees were indi-
vidually interviewed on 13 January 1983 by the
Respondent's attorney Lang in Owner Bill Scott's
office, and that tang told each employee" there
would be no reprisals for his answers. However,
because he found that Lang did not in each in-
stance provide the two other warnings required by
Johnnie's Poultry, i.e., state the purpose of the inter-
1 146 NLRB 770 (1964), enE denied 344 F 2d 617 (8th Cir. 1965)
view and that participation was voluntary, the Re-
spondent thereby violated Section -8(a)(1), I cannot
agree with such a per se approach to employer
interviews in preparation for unfair labor practice
hearings.
Instead, in an approach similar to that of the
Sixth Circuit on this issue,2 I would find a viola-
tion in such a context only when the totality of the
evidence indicates that the interview amounted to
coercive conduct.3 Thus, in Anserphone, the em-
ployer, as in the instant case, gave only one of the
three Johnnie's Poultry warnings . Three employees
were told they were being interviewed about an
unfair labor practice proceeding but were not told
that there would be no reprisals nor that their par-
ticipation was voluntary. The Board found the
interviews violated Section 8(a)(1). The Sixth Cir-
cuit reversed, relying on the absence of evidence of
coercion, as buttressed by one employee's refusal
to be interviewed and another's apparent coopera-
tion in providing the employer with a copy of her
affidavit to the Board. More recently, in Dayton
Typographical Service, the Sixth Circuit again re-
versed the Board's 8(a)(1) finding. The court held
that an attorney who questioned an employee and
obtained from him a copy 'of the affidavit he had
previously given to the Board did not engage in
coercive conduct even though he did not state
each of the Johnnie'S'Poultry warnings. As in Anser-
phone, the court relied on the lack of evidence that
the employee interviewed was coerced and the af-
firmative evidence indicating that he was not. In
this regard,,;the court noted the employee's testimo-
ny that he , was not threatened and was willing to
provide a copy of his Board affidavit to the em-
ployer. The court further noted that there was no
evidence of union activities, thereby reducing, the
possibility that the affidavit the attorney requested
2 Anserphone, Inc. v. NLRB, 632 F 2d 4 (6th Cir. 1980), denying enf.
236 NLRB 931 (1978); Dayton Typographical Service Y. NLRB, 778 F 2d
1188 (6th Cir. 1985), denying enf. 273 NLRB 1205 (1984)
3 This approach is consistent with that of the Second Circuit, where
this case arose. That circuit has a long history of employing a totality of
circumstances test for interrogations . Burns Electronic Security Services v.
NLRB, 624 F.2d 403, 410-411 (2d Cir. 1980), NLRB v. Donald E. Hernly,
Inc., 613 F 2d 457, 464 (2d Cir. 1980); NLRB P. Monroe Tube Co., 545
F.2d 1320, 1328 (2d Cir 1976); Bourne v NLRB, 332 F 2d 47 (2d Or
1964). The Second 'Circuit has also employed this totality, of circum-
stances test in considering interrogations by employers or their attorneys
in preparation for litigation. See NLRB v. Martin A. Gleason, Inc., 534
F.2d 466, 479-481 (2d Cir. 1976) (requests for employees' statements to
the Board not per se unlawful); Retired Persons Pharmacy v NLRB, 519
F.2d 486, 492-493 (2d Cir. 1975) (totality of circumstances test applied to
interviews purported to determine union support and prepare for hear-
ing). See also NLRB v Lorben Corp, 345- F 2d 346, 348 (2d Cir. 1965)
(court rejected Board's application of Johnnie's Poultry rule to poll of
union support in favor of well-established precedent using totality of cir-
cumstances test). See also W W. Grainger, Inc. v NLRB, 677 F.2d 557,
560 (7th Cir. 1982); A & R Transport, Znc Y. NLRB, 601 F 2d 311,312-
313 (7th Cir. 1979), TRW Inc., v. NLRB, 654, F 2d 307, 314-315 (5th Cir
1981) (interrogation in preparation for representation proceeding)
BILL SCOTT OLDSMOBILE 1077
would contain information outside-the complaint or
revealing the employee's own union activities or at-
titudes.
The Sixth Circuit's treatment of this issue high-
lights the ramifications of the Board's inflexible ap-
proach to Johnnie's Poultry warnings. The Board
has in other contexts recently declined to impose a
per se rule in considering whether employer-em-
ployee interrogations violate the Act.4 In those
cases, the Board returned to, an examination of the
totality of all' pertinent circumstances in determin-
ing whether an interrogation reasonably tended to
restrain, coerce, or interfere with rights guaranteed
by the Act.5 As indicated in Sunnyvale Medical
Clinic, an _ important purpose of the Board's deci-
sion in Rossmore House "was to signal disapproval
of a per se approach to allegedly unlawful interro-
gations in general, and to, return to a case-by-case
analysis which takes into account the circum-
stances surrounding an alleged interrogation and
does not ignore the reality of the workplace."6
It is difficult to discern a legitimate basis why
the same rationale expressed in these two cases is
not operative here. In fact, interviews in prepara-
tion for trial are one of the rare kinds of interroga-
tions in which the Board has long recognized that
the employer has a legitimate interest.? In this
light, interviews of this type seem readily appropri-
ate for analysis similar to that set forth in Rossmore
House and Sunnyvale Medical Clinic.8
Such an approach is particularly pertinent to the
instant case because a review of the evidence indi-
cates that, although Lang's interviews may not
have in each instance strictly contained all three
Johnnie's Poultry warnings, the, overall effect of
4 Sunnyvale Medical Clinic, 277 NLRB 1217 (1985); Rossmore House,
269 NLRB 1176 (1984), enfd. sub nom Hotel '& Restaurant Employees'
Local 11 v. NLRB, 760 F.2d 1006 (9th Or. 1985).
5 Sunnyvale Medical Clinic, supra; Rossmore House, supra at 1177, 1178
fn. 20.
6 Sunnyvale Medical Clinic, supra.
7 Johnnie's Poultry Co , supra at 774-175
S I recognize , along with my colleagues, the guidance that Johnnie's
Poultry provides to assist employers in avoiding violations of the Act
while pursuing their legitimate task of preparation for hearing I disagree,
however, with my colleagues' overly legalistic application of that rule in
such a manner that conduct which does not reasonably tend to interfere
with Sec. 7 rights is found unlawful.
I also disagree with my colleagues that the traditional exception set
forth in Johnnie's Poultry from the Board's usual treatment of mterroga-
tions is based on or implies a necessary difference between the nature and
circumstances of an employer 's interviewing of employees in preparation
for litigation and other interrogations generally I find nothing in that de-
cision that distinguishes what the Board described as the "inherent
danger of coercion" (146 NLRB at 774) of interrogations in preparation
for litigation from that of other interrogations Instead, I read the excep-
tion to have been premised on the counterbalancing interest of the em-
ployer in preparing for trial without regard to any inherent differences
between interrogations in preparation for litigation and other interroga-
tions In any event, by extending the totality of circumstances test of
Rossmore House and Sunnyvale Medical Clinic to these interrogations, the
Board will properly consider the particular circumstances of each alleged
instance of unlawful interrogation
each 'interview was not coercive. The pertinent
facts are disclosed by the testimony of the eight
employees interviewed.9
According to employee William LaTocha, the
only witness called by the General Counsel on this
issue, Lang began the interview, "I guess you
know what is going on?" When LaTocha replied
that he did, Lang asked about a 7 April 1982 meet-
ing where the initial unfair labor practice allegedly
occurred. LaTocha replied that he did not have to
answer, and, if he did, he would like a lawyer
present. Lang said, "That's fine," and LaTocha
proceeded to leave the interview, first asking Lang
whom he wanted to see next.
According to employee Walter Bush, 'Lang
stated he wanted to know about the 7 April meet-
ing but that Bush would not be subject to dismissal
for what he said. Bush could not recall whether
Lang said anything else before asking about the
meeting, although "[h]e 'may have," and also
denied that Lang made any promise of benefits..
According to Edward Mattice, Lang told him
there would be no special favors for his testimony.
He did not recall Lang, telling 'him the purpose of
the interview, although he testified the conversa-
tion involved the instant proceeding. Lang asked
him about "different occasions," including the 7
April meeting.
According to Scott Samuel, Lang started the
interview by stating "no matter which way I
[Samuel] testified, there wouldn't be nothing; I
would not be getting a raise; would not be getting
fired or nothing like that, by the way I testified."
He did not recall, if Lang told him the purpose of
the interview but remembered that' Lang asked
about a couple of, meetings, including the 7 April
meeting.
Frederick Prior testified that Lang began the
interview, "[t]his won't affect your job. ,. . . [Lang
just wanted to find out] what the story is and what
actually happened."
William Mack Jr. testified that Lang stated, "[I]t
wasn't no harassment or nothing like that. . . . I
[Mack] would be . . . just talking about what the
case was.,, Lang also said that there would be no
rewards or reprisals and his purpose was, "[tbo find
out the truth on certain articles that [Lang] put to
me."
According to Robert Green, Lang told him his
testimony was not "binding" and_ that there would
be no benefits or reprisals. Lang asked "if I [Green]
felt like, that if [Lang] asked me to testify, would I
testify in good faith." Green replied that if he lost
his job for telling the truth he would "`bring it to
9 Attorney Lang did not testify
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the court." Lang told him he was going to ask
about the Union and proceeded to ask about the
labor case.
Finally, Gerald Millett testified that Lang did
not mention the purpose of the interview but that
Millett knew the interview was about the labor
hearing , and Lang told him there would be no pay
or bonuses nor would he be fired for his answers.
Lang questioned Millett about various employee
meetings.
A review of this testimony amply demonstrates
that although Lang 's interviews may not have in
each instance strictly contained all of the three
Johnnie 's Poultry safeguards , the overall effect of
each interview was not coercive . As in the Sixth
Circuit cases , there was no evidence that any of
the employees were coerced by the interviews.
Rather, the evidence reveals that the employees
interviewed,,all of whom were told that their inter-
view would lead to neither reprisals nor rewards,
voluntarily cooperated with Lang, except for La-
Tocha. As to LaTocha, he was clearly not coerced
for, when he refused to participate in the inter-
view,, Lang immediately acquiesced in LaTocha's
decision and made no attempt to change LaTocha's
mind . Further, all of the employees testified that
they knew, either by Lang's specific statements or
by deduction, that the purpose of the interview
concerned the unfair labor practice hearing. Final-
ly, the fact that the interview occurred months
after the alleged , unfair labor practices, did not go
beyond those allegations , and did not delve into the
employees ' union sentiments or activities also
evinces that the interrogations were not coercive.
In sum , an examination of the totality of the cir-
cumstances fails to demonstrate that the interroga-
tions had a reasonable tendency to restrain, coerce,
or interfere with the employees ' exercise of their
Section' 7 rights. Accordingly, I decline to join
with my colleagues in an overly legalistic applica-
tion of Johnnie's Poultry and would dismiss this
complaint allegation.
My colleagues have also adopted the judge's
findings that the Respondent violated Section
8(a)(1) of the Act by certain comments its owner
Bill Scott made to employees on 29 April 1982. I
disagree with these findings as well.
On that afternoon , Scott encountered a group of
six employees, including John LaTocha and Chet
Orzel, who were gathered in the vicinity of the
service department's coffeepot. Scott asked how
things were going. LaTocha replied that he did not
care for the manner in which the Respondent had
dealt with Daniel Cerul, an employee who had
been discharged earlier that day, and that the em-
ployees were finding it difficult to cooperate with
Scott because he had implemented changes in the
operation of the dealership . 10 Scott retorted that it
was his business and that if LaTocha did not like
working on Scott 's terms "he could get the f-
out." During the course of the same conversation,
Orzel also complained about the changes the Re-
spondent had made . Scott replied, "[I]f you don't
like your job, leave."
The judge found that Scott's comments violated
Section 8 (a)(1) in that they constituted threats to
employees that further complaints would result in
discharge and also indicated that it was futile for
employees to communicate concertedly in an effort
to improve their conditions of employment.
In its exceptions , the Respondent asserts that it is
clear from the record that Scott 's statements to La-
Tocha and Orzel were not, nor were they intended
to be, a statement of the Respondent 's policy, but
rather merely angry responses in an exchange of
heated words that occurred in an informal setting.
I find merit to the Respondent 's exception.
First, B.J.P. Painting & Decorating Co., 206
NLRB 800 (1973), enf. denied 512 F.2d 599 (6th
Cir. 1975), on which the judge relied, is clearly dis-
tinguishable . Employees in that case were also told
that if they did not like the situation they could
leave. However, they also were expressly told that
the respondent would not tolerate interference with
how the president operated the company and were
directly admonished , including at two other inci-
dents, for going to the union . Here, by contrast,
Scott neither admonished any employee for pro-
tected concerted activity nor indicated he would
not tolerate any such expression . No reference was
even made to any union or other concerted activity
on the part of the employees. In this context,
Scott's comments were no more than expressions
of his opinion in support of how he was operating
the Company and were not coercive.l l
I would, therefore, also dismiss the complaint al-
legation that by these comments the Respondent
violated Section 8(a)(1) of the Act.
10 Scott had changed the manner of computation of the pay due to
each mechanic
II See Seaward International, 270 NLRB 1034, 1042 (1984)
BILL SCOTT OLDSMOBILE 1079
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 ordered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for engaging in protected
concerted activity.
WE WILL NOT respond coercively to any of you
who voice complaints on behalf of your fellow em-
ployees about management decisions which affect
terms and conditions of employment.
WE WILL NOT interview any of you in prepara-
tion for defense of unfair labor practice proceed-
ings without first informing you of the purpose of
the interviews and without advising you that your
participation is voluntary.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the, exer-
cise of the right guaranteed you by Section 7 of the
Act.
WE WILL offer John LaTocha and Stephen Mel-
cher immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially 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 interest.
WE WILL notify John LaTocha and Stephen
Melcher that we have removed from ` our files any
reference to their discharges and that the dis-
charges will not be used against them in any way.
BILL SCOTT OLDSMOBILE
Thomas J. Sheridan, Esq., for the General Counsel.
Vaughn D. Lang, Esq., of -Fayetteville, New York, for
the Respondent.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. In
April 1982 William Scott purchased and began managing
a Syracuse, New York Oldsmobile dealership. (Scott
purchased the dealership from Anthony Romano, and
this decision will accordingly refer to Respondent's pred-
ecessor as Romano Olds or Romana.) The General
Counsel claims that within a month of Scott's acquisition
of the dealership, Scott and three other agents of Re-
spondent had made coercive remarks in violation of Sec-
tion 8(a)(1) of the National Labor Relations Act, and
fired four employees because of their protected activities,
in violation of Section 8(a)(1) and (3).1 For the reasons
discussed in the decision, my conclusion is that the Gen-
eral Counsel has proved some, but not all, of the com-
plaint's allegations.
I. SCOTT'S INTRODUCTORY SPEECH
Scott planned to, and did, retain Romano's entire com-
plement of employees. Romano Olds' service department
and body shop employees were represented by United
Auto Workers Local 1567(A) (the Union) at the time
Scott acquired the dealership. And all parties agree that
the Union continued to be the employees' bargaining
representative after the takeover.
Scott met with about 20 of the service department and
body shop employees on,April 7, just about the time ac-
quisition was completed. (All dates in this decision refer
to 1982 unless otherwise specified.) During the course of
the meeting, service department employee John Latocha
asked Scott whether he had notified the Union about his
speaking collectively with the employees. (Both John
Latocha and his brother William worked for Respond-
ent. Unless the context otherwise requires, reference in
this decision' to Latocha will be to John Latocha.) Scott
said he had not, and went on to say that he felt the em-
ployees did not need a union and that he "preferred" or
"would like to" deal with them "individually" on a
"one-on-one basis" to solve their problems. But Scott
also said that "if the employees wanted a union it was
their, prerogative." He further advised the employees
that he was familiar with the collective-bargaining agree-
ment that they had negotiated with Romano and intend-
ed to abide by it, observing that in his opinion it was
more favorable to management than to the employees
and that, as a result, "any idiot would sign it.'"2
The General Counsel contends that those ' statements
amounted to an invitation to employees to engage in
direct bargaining in circumvention of the Unlion's role, a
portrayal of union representation as futile, and the solici-
tation of grievance and the implied promise of benefits to
employees who circumvent or forgo the Union, all in
violation of Section 8(a)(1). But it is my conclusion that
statements in question amount to nothing more than a
lawful expression of Scott's personal opinion concerning
the merits of union representation and the value of the
collective-bargaining agreement between the Union and
the Respondent's predecessor. Scott expressed himself in
conditional terms, deferred to the judgment of the em-
ployees about whether they should choose or reject
union representation, and ultimately expressed an inten-
tion to abide by the agreement between the Union and
Romano. As such, I find that ' at no time during the
I The consolidated complaint, dated August 5, 1992, was based, on
charges filed by Stephen Melcher on June 28, 1982, John Latocha on
July 1, 1982, and Danny Cerul and Stephen Sackett on July 23, 1982 Re-
spondent admitted the jurisdictional allegations of the complaint, but
denied any wrongdoing.
The General Counsel has filed an unopposed motion to correct tran-
script The motion is granted in its entirety.
z This finding represents a composite of the testimony of Scott and of
General Counsel's witnesses John and William Latocha, Melcher, Sack-
ett, and Sauta.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course of his meeting with the employees did Scott make
statements violative of the Act.3
II. SMOKEY'S
Shortly after Scott assumed operation of the dealer-
ship, Joseph Grassel approached Latocha and asked
where the employees ate lunch. At that time Grasse] was
Respondent's service manager and was the immediate su-
pervisor of the employees' department.4 Latocha in-
formed him that they usually went to Smokey's, a neigh-
borhood establishment close to the dealership. Grassel
asked if he might accompany the employees to lunch one
day. Latocha consented.
At lunchtime on an unspecified date in mid-April 1982,
Grassel arrived at Smokey's in the company of Respond-
ent's "service writer," Christopher Bishop.5 Several em-
ployees were already there-both Latochas, Eddie Mat-
tice, and Fred Prior of the service department, and Steve
Sackett and John Sauta of the body shop. Grassel and
Bishop sat down with the employees, and general con-
versation ensued. In the course of the conversation,
Grassel asked how the employees felt about Scott. They
responded that they had not had sufficient time to form
an opinion. Grassel assured them that they would find
that Scott was a "good guy to work for."
At that point a colloquy began between Latocha and
Sackett, on the one hand, and Grassel, on the other.
During the course of this exchange, Grassel asked why
the employees had unionized under Romana, and what
the strength of the Union was. Latocha explained that
unionization 'under Romano had been the result of what
employees considered an unwarranted cut in pay. He de-
tailed the circumstances surrounding the campaign and
informed Grassel that the employees most active in the
organizing effort were he, Sackett, and Stephen Melcher,
and that the original vote was 22 to 4 in favor of the
Union.6 Grassel's response to the narrative concerning
the Union's history under Romano consisted of reassur-
ing the employees that they need have no similar con-
cerns about Scott, and that if they had any problems, "to
go see him yourself." The luncheon lasted approximately
2 hours after which Grassel and the employees returned
to work.
3 In its amendment to order consolidating cases, complaint , and notice
of heanng, the General Counsel additionally alleged that at the April 7
meeting, Scott "interrogated . employees about their union activities
in violation of Section 8(a)(1) of the Act " No evidence was offered at
hearing in support of this allegation nor was it addressed in the General
Counsel's brief. I will accordingly recommend that this portion of the
amended complaint be dismissed.
4 The Company has admitted that Grassel is a supervisor. within the
meaning of Sec 2(11) of the Act.
5 Bishop's duties consisted of taking customers' service request and
routing automobiles to the appropriate mechanic, taking into account the
mechanics ' specialties and work flow. Bishop was an employee , not a su-
pervisor But given the nature of his duties, the other employees consid-
ered him to be aligned with management
s Sackett testified that Grassel specifically asked who were the strong-
est members of the Union (Sackett further testified that his response was
"John" Latocha.) All other witnesses who testified about this portion of
the conversation said that Latocha mentioned the names of the principal
union organizers in response to Grassel 's general question concerning the
genesis of, the Union I credit this version, and find that Grassel at no
time specifically requested the names of union acitivists.
The General Counsel contends that Grassel's inquiries
concerning the genesis of the Union under Romano and
its strength amounted to improper interrogation of em-
ployees about their union activities in violation of Sec-
tion 8(a)(1) of the Act.-But my conclusion is that Grassel
said nothing that could have reasonably tended to
coerce, restrain, or interfere with employees in the exer-
cise of their Section 7 rights.
First, there was nothing threatening about the atmos-
phere at Scott Oldsmobile in mid-April 1982. The em-
ployees had had union representation for approximately
2 years. Scott had informed them that he planned to ne-
gotiate in good faith with the Union and to abide by the
collective-bargaining agreement that had been negotiated
with Romano. And Scott's behavior was in line with his
statements: He was negotiating with the Union and he
was complying with the terms of the collective-bargain-
ing agreement.
Second, the occasion of the questioning was a regular
employee luncheon break, taken at its customary loca-
tion, to which asupervisor, albeit as a result of his own
solicitation, had been invited. And the questions were
posed in the presence of several employees.
Third, the questions themselves did not elicit points of
view of employees concerning the merits of self-organi-
zation nor even the union sentiments of the group as a
whole. They were instead focused on the beginning of
the shop's unionization, under a previous employer, some
3 years in the past. As such, it appears that the questions
were more the result of natural curiosity than an attempt
to gain knowledge that might aid in thwarting union ac-
tivities. Likewise, there is nothing in their substance that
could reasonably be construed to represent antiunion
views on the part of Respondent.
I therefore conclude that the questioning at Smokey's
was not violation of Section 8(a)(1) of the Act and will
accordingly recommend that this portion of the com-
plaint be dismissed.?
M. CERUL'S DISCHARGE
Danny Cerul had been employed in the service depart-
ment of Romano Olds for some 10 years prior to Scott's
purchase of the dealership. He was assigned almost ex-
clusively to new-car preparation, which consisted of
readying recently sold automobiles for delivery to cus-
tomers. Cerul's hours of work were 8 a.m. to 5 p.m.
Romano had paid Cerul $13.50 for each new car pre-
pared. Cerul objected, claiming that the appropriate rate
was higher, and filed a grievance to that effect. Nonethe-
less, Romano was still paying Cerul $13.50 per car when
Scott acquired the dealership. As soon as operations
under Scott began, Cerul somehow arranged to be paid
$20-$25 per car. Scott was unaware of the change.
T Grassel's statement, "go see him [i-.e., Scott] yourself' (referring to
employees with "problems"), is similar to the one made by Scott at the
introductory meeting. However, the complaint does not allege that that
statement by Grassel violated the Act, and the remark is only mentioned
in passing in the General Counsel 's brief In any event, given the circum-
stances under which Grassel made the remark, it could not reasonably
have coerced or restrained employees or interfered with the exercise of
Section 7 rights
BILL SCOTT OLDSMOBILE 1081
Sometime in late April, during a random review of bill-
ing slips, Scott realized that Cerul's rate of compensation
was higher than it had been under Romano. Scott ques-
tioned the cashier about the increase. When she informed
him that she was unaware of any reason for the increase,
Scott instructed that Cerul's rate be returned to the origi-
nal $13.50 per car.
On April 28 William Burden, the assistant service man-
ager, informed Cerul of the reduction. Cerul asked shop
steward Bobby Green what the Union could do about
what Cerul conceived to be an unwarranted and improp-
er act on Scott's part., Green told him that the Union
could do nothing. Cerul then sought Latocha and in-
formed him of both his reduction in pay and Green's re-
sponse to his request for union support. Latocha had al-
ready arranged to meet with an attorney at 3 o'clock
that afternoon to discuss the possibility of filing suit
against Romano and Scott in other, unrelated, labor mat-
ters. He was to be accompanied by Chet Orzel, another
mechanic. Latocha suggested that Cerul go along so that
Cerul might obtain an assessment of his problem.
At approximately 2:30 that afternoon, John Latocha
proceeded to Cerul's work area and asked if he was
ready to leave. At that point, in Cerul's opinion, he had
finished all the work that could have been completed
that day. Although there were two new cars in his area
that still needed work, the parts necessary for their com-
pletion were not , in stock (a fact Cerul did not communi-
cate to management). Prior to leaving, Cerul advised
both shop steward Green and service writer Bishop that
he was departing early with Latocha to meet with an at-
torney about his wage reduction. Neither Green nor
Bishop was a supervisor and Cerul did not seek permis-
sion to leave early from either of the supervisors, Grassel
or Burdeen, who were the persons Respondent expected
employees to notify about early departure. And neither
Green nor Bishop informed Grassel or Burden of Cerul's
intention to leave early or Cerul 's reason , for leaving.
(Both Latocha and Orzel, some 2 or 3 days before, had
obtained Grassel's permission to leave early. And Lato-
cha had advised Grassel of the reasons that he and Orzel
needed to leave early.)
Sometime after Cerul, Latocha, and Orzel left, Grassel
told Scott that ' Cerul had left early without obtaining
permission. Grassel' said that he was going to discharge
Cerul for such action. Scott suggested that Grassel docu-
ment the incident in writing. Grassel 'did so, and Re-
spondent discharged Cerul as of that same day.8 When
Cerul arrived for work the following day (April 29),
Grassel informed him that he had been fired and asked
where Cerul had been the previous day. Cerul said that
he had seen a attorney about his reduction in pay. Gras-
sel responded that it was Scott's position that Cerul
should not have left without obtaining 'permission . (Cerul
argued that he had told Bishop about his early departure.
But when Grassel checked with Bishop, about , that,
Bishop denied that Cerul had said anything about leaving
early.)
The service department and body shop employees
learned of Cerul's 'discharge shortly thereafter and
promptly, stopped work to protest the Company's action.
Latocha, who was not scheduled to work that day, was
advised by telephone of the situation. He hastened to the
shop and, during the course of the work stoppage, acted
as the employees' spokesman. That led to a conversalion
between Grassel and Latocha about why Cerul had been
fired and about where Cerul had been the previous clay,
and why.
Sometime thereafter, Cerul sought out Scott. Cerul
asked why he had been fired. Scott stated that Cerul had
departed work early without advising anyone and had
left work unfinished. Scott told him that he knew that
Cerul had gone to see an attorney about his pay, but the
proper procedure was to notify the service manager
before he left and not Bishop or Bobby Green. S cottwas
impressed by Cerul's initiative in coming to see him. Fur-
thermore, he felt that Cerul had in a sense been victim-
ized by Latocha and Orzel, who had obtained permission
from Grassel to leave, but had not made sure Cerul did
likewise. As a result, during the course of their conversa-
tion Scott reconsidered his decision to dismiss Cerul. Ex-
actly what was said is unclear . But it appears that when
the meeting ended Cerul was under the' impression that
his dismissal had been converted into 2-week suspension
without pay. Scott, on the other hand, insists that he
merely told Cerul to return in 2 weeks so that the possi-
bility of his reinstatement could be discussed. Whatever
the case, Cerul returned to the body shop and informed
his coworkers that his dismissal had been converted into
a 2-week suspension. As a result, the' employees ended
their protest and returned to work.
The General Counsel asserts that Cerul's departure
from work, even if it was without permission, was pro-
tected, concerted activity and accordingly that Cerul's
discharge, or suspension was therefore inproper under
Section 8(a)(1) and (3) of the Act.
In claiming that Cerul's conduct was protected, the
General Counsel relies on two lines of cases. The first, as
evidenced by Standard Aggregate Corp. 9 and New York
Trap Rock Corp., ' ° characterizes as protected concerted,
activity any good-faith protest involving provisions of a
collective-bargaining agreement, even when action is
taken by only a single employee. The second, as provid-
ed in cases such as NLRB v. Washington Aluminum"
and Go-Lightly Footwear, 251 NLRB 42 (1980), prohibits
an employer from disciplining employees for, leaving
their place of work even when such conduct amounts to
a violation of express company regulations, if the em-
ployees' departure was in protest of terms or conditions
of employment.
I, will assume, for present purposes, that Respondent
would have violated the Act had Respondent disciplined
Cerul because Cerul met with an attorney about the pay
cut. I will also assume (again arguendo) that Respondent
would have violated the Act by disciplining Cerul for
leaving early if Cerul had left work early as a way of
protesting the pay cut. , , But Respondent acted against
9 213 NLRB 154, 159 (1974).
10 148 NLRB 374, 375 (1964), see also V .S. Steel Corp., 252 NLRB
1273, 1277 (1980)
8 See G.C Exh. 10, Cerul's termination date is noted as April 28, 1982 11 370 U S. 9 (1962).
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cerul solely because he left work early, not because he
consulted with an attorney. And Cerul neither intended'
his leaving early to be a form of a protest nor gave Re-
spondent any reason to believe that it `was a form of pro-
test. Rather, Cerul's early departure was the result of
mere happenstance and of Cerul's view that it would be
more convenient to speak with an attorney at a meeting
already arranged by Latocha than at some other time.
What that adds up to is that Cerul's early departure
did not constitute protected activity and that Respond-
ent's action against Cerul did not violate the Act.
IV. THE COFFEEPOT CONFRONTATION
During the afternoon of April 29, Scott, who had been
informed of the morning protest over Cerul's discharge,
left his office and went to the service department. There,
in the vicinity of the shop's coffeepot, he encountered
employees Mattice, Melcher, Priorm, Orzel, and John
and William Latocha. Scott asked how things were
going. John Latocha responded that things were not
going very well, specifically observing that he did not
care for the manner in which the Respondent had dealt
with Cerul. Scott stated that it was management's deci-
sion. Latocha responded that the employees were fording
it difficult to cooperate with Scott based on his imple-
mentation of changes in the operation of the dealership.
(The employees felt that Scott had reneged on what they
considered to be a promise he made in his introductory
meeting to make no changes in the terms under which
they were employed. The employees were particularly
concerned by not only the reduction of Cerul's pay and
his discharge, but by an unfavorable change in the way
Respondent computed the amount of pay due each me-
chanic.12) Scott retorted that it was his operation, that
the employees were going to work there in his terms,
and that if "he [Latocha]" didn't like it he could get the
fuck out." Someplace in the course of the same conver-
sation Orzel also complained about ' the changes made by
Respondent. Scott replied, "If you don't like your job,
leave."
In sum , Latocha and Orzel,,both speaking on behalf of
the employees generally, stated their unhappiness about
certain management action directly affecting terms and
conditions of employment. Scott angrily replied that if
the two employees did, not like the way he conducted his
business they could leave.
Respondent thereby violated the Act. First, that kind
of remark, made without disclaimers to the contrary, will
reasonably be heard by employees as a threat that further
complaints will result in discharge: See B.J.P. Painting &
Decorating Co., 206 NLRB 800 (1973), enf. denied 512
F.2d 599 (6th Cir. 1975). Second, Scott's responses
amount to statements that it was futile for Respondent's
employees to communicate concertedly in an effort to
improve conditions of employment.
V. THE INCIDENTS OF MAY 12 AND 13
As previously discussed, on April 29 Cerul was either
discharged subject to reinstatement in 2 weeks, or sus-
pended for 2 weeks. Cerul duly returned to Scott Olds
on the morning of May 12. In accordance with Scott's
instructions of April 29, Cerul proceeded to the front
office to speak with Scott. While Cerul was away, Re-
spondent had terminated the employment of employees
Melcher, Sackett, and Latocha (a subject to be consid-
ered later in this decision). Scott informed Cerul of the
terminations and said that because he was attempting to
move away from specilization by mechanics, he no
longer needed an employee who did only new-car prepa-
ration. Cerul asked what type of work Scott wanted him
to do. Although there is some dispute about the exact
description of the work Cerul was to be assigned, both
Scott and Cerul agree that it was to involve front-end
repair.13 The job offer troubled Cerul. He had not done
front-end work for several years; and Latocha had been
the previous front-end specialist. Cerul assumed that he
was being 'offered Latocha's old job and asked why La-
tocha had not been offered the position.
According to Cerul, after he inquired about Latocha,
Scott became offended and stated that in view of Cerul's
attitude he no longer was sure that he desired to offer
Cerul employment. Hence, Cerul was to return the fol-
lowing day to determine if the offer was still open. Scott
disputed Cerul's , account. According to Scott, when
Cerul asked about Latocha, Scott responded that Lato-
cha had been laid off for economic reasons and that Re-
spondent was under no obligation to rehire Latocha.
Scott testified that Cerul then asked for time to make a
decision, and 'both agreed that Cerul was to return the
following day to inform Scott if he was going to take the
job. I credit Scott.
Cerul returned the next morning. While passing
through 'the parts department, Cerul encountered Assist-
ant Shop Manager Burden. Burden asked Cerul if he was
thereto pick up his tools. Cerul assumed that to mean
that Scott had retracted his offer of reinstatement. Cerul
then did or said something that led Burden to think that
Cerul's employment by Respondent had 'ended. Burden
accordingly told Cerul to return his dealer tags. Cerul
gathered his tools and left. Scott, unaware of the ex-
change between Burden and Cerul in the shop, assumed
that Cerul's failure to keep his appointment meant he had
decided not to accept Scott's offer.
The General Counsel contends that Cerul, in question-
ing Scott's failure to offer a position" to Latocha, engaged
in_protected concerted activity; and that as a result Cerul
was discharged when he arrived at work the following
day, in violation of Section 8(a)(l) and (3) of the Act.
And had Respondent refrained from returning Cerul to
work because'of Cerul's expressed concern about Lato-
cha, Respondent would have violated the 'Act. But that
is not what happened. Respondent did offer Cerul a posi-
tion as mechanic and did hold its offer open, at Cerul's
12 That action by Respondent and various other changes in terms of
employment made by Respondent raise the possibility that Respondent
violated Sec. 8(aX5) However, the General Counsel specifically opted
not to allege violations of that section
" Cerul testified that Scott stated that he needed a front-end mechan-
ic. Scott testified that he needed a mechanic who could "do all things
necessary in the shop ," including wheel alignments.
BILL SCOTT OLDSMOBILE 1083
request, until' May 13. And the events of May 13 that-led
to Cerul's departure were the result of a mix up in com-
munications between Cerul and Burden, not the product
of a decision by Respondent not to employ Cerul. That
does not amount to a violation of the Act.
VI. THE DEBOTTIS MEETING
William DeBottis is the president and sole employee of
Strategy Management Services. That company provides
courses in personnel development, the objective of
which is to improve performance efficiency among both
employees and management. In April 1982 DeBottis
sought to sell his company's service to Respondent.
After a series of meetings, Scott agreed to allow DeBot-
tis to make an introductory presentation of one of his
courses to a group of Respondent's employees. DeBottis
was not to be paid for that presentation. But if the em-
ployees appeared receptive and DeBottis was of the
opinion that the course would be beneficial, Scott agreed
that he would retain DeBottis to give the entire course
to that group.
The introductory meeting was held in Respondent's
customer lounge at 1:30 p.m. on May 4. Respondent re-
quired all of its service department and body shop em-
ployees to attend, and the employees were told that they
would be compensated for their time at the meeting. De-
Bottis began by introducing himself to the employees.
He explained that he gave courses in motivation and atti-
tude improvement; that he had reviewed this course with
Scott; and that Scott wanted him to describe it to the
employees. DeBottis then began to give a general over-
view of the particular course he had proposed offering
the employees. Either because of the subject matter of
the presentation, or because of DeBottis' style of deliv-
ery, or both, the employees reacted with hostility. Lato-
cha and Sackett were among the most vocal. In a
number of cases, employees complained about Respond-
ent's insufficient pay and refusal to provide fringe bene-
fits. DeBottis' responses to such complaints took the
form of "if that is the way you feel about it, why don't
you leave the company," or "if you don't like the place,
why don't you leave. This is a free country." 14
I will assume that at least for some purpose DeBottis
was an agent of Respondent. See Sterling Faucet Co., 203
NLRB 1031, 1032 (1973). And as discussed earlier (in
connection with Scott's comments to Latocha and
Orzel), in some circumstances an employer violates Sec-
tion 8(a)(1) if its agent, in response to an employee's
complaint about working conditions, tells the employee
that if he does not like those conditions he can leave. But
DeBottis had no authority to fire or otherwise discipline
the employees, which, the employees, knew. He had not
and was not going to supervise their work, which the
employees knew. And he was there to talk about em-
ployee motivation, as the employees also knew. Given
that context, DeBottis' remarks about leaving Respond-
ent's employ "if you feel that way about it" could not
reasonably be taken as anything more than the expression
14 The quotes are from DeBottis' account of the meeting I do not
credit the employees' testimony that DeBottis said anything else about
employees leaving Respondent's employ, being fired, or the like.
of -opinion by DeBottis about how the employees ought
to deal with their dissatisfactions. The remarks could not
reasonably coerce, restrain , or interfere with the employ-
ees in the exercise of their rights.
VII. LATOCHA' S DISMISSAL
Latocha acted as an employee spokesman during
Scott's introductory talk and during the Cerul incident.
He did most of the talking to Service Manager Grassel at
Smokey's and told Grassel that he, Melcher, and Sackett
led the organizing drive that unionized the shop's em-
ployees. He was very vocal during the May 4 DeBottis
meeting . And both Scott and, DeBottis told 'Latocha that
if he did not like things there, he should leave Respond-
ent's employ.
Midafternoon on May 4, not long after the DeBottis
meeting ended, Latocha, Melcher, and Sackett were
each handed identical letters signed by Scott. The letters
read:
Due to economic conditions it is necessary for
you to be placed on indefinite lay-off.
As of this date your services at Bill Scott Olds-
mobile Inc . are no longer required.
The "lay-offs" were in fact discharges in that Respond-
ent has recalled neither Latocha nor Melcher nor Sackett
even though job openings at the dealership have oc-
curred for which each of the three was qualified and for
which persons never previously in Respondent's employ
were 'hired.
Sometime after Latocha's dismissal, Latocha's brother,
William, asked Service Manager Ferd Lauding about it.
(Laudig, an admitted supervisor, had replaced Grassel.
Laudig continued to hold that position at the time of the
hearing in this proceeding.) According to William Lato-
cha, in response to the question "Why was nay brother
laid off?" Lauding answered: "Well, I heard your broth-
er caused a lot of 'tension around here, and if I was here
at the time . .. I 'don't think anybody would have been
laid off." Lauding did not testify and none of, Respond-
ent's witnesses discussed William Latocha's account. It
thus remains unrebutted and unexplained.
The General Counsel claims that Respondent fired La-
tocha because he engaged in the various protected activi-
ties listed above.
A few of the General Counsel's contentions can be put
aside. Scott made the decision to discharge Latocha,
Melcher, and Sackett prior to May 4, so that Latocha's
behavior at the DeBottis meeting (held on May 4) could
not have been a factor in Latocha's discharge, Moreover
the record is clear that Scott was wholly unconcerned
about the success or failure of the DeBottis meeting and
never spoke to DeBottis about individual employees.
And as for Latocha's role in unionizing the shop, the evi-
dence does not reflect any union animus on Scott's part.
But there are, the facts that: (1) according to' Respond-
ent's service manager, Latocha's discharge was related to
the "tension" he caused; (2) Latocha was the main
spokesman for Respondent's employees; (3) on April 29,
a few days before his dismissal, Latocha' s statements in
that role drew Scott's anger; and (4) Latocha was dis-
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
missed midafternoon and midweek, without any notice.
And those facts add up to a, prima facie case that Lato-
cha was fired because of his unprotected activities.
VIII . RESPONDENT'S DEFENSE
Scott acquired the dealership in the midst of difficult
times for the U.S. automobile industry. Romano had in-
curred losses .due to below-par car sales, and sales con-
tinued to sag after Scott took over. Moreover, Scott had
had to borrow heavily in order to acquire the dealership,
and the resulting financial commitments made it neces-
sary for the Company to begin generating a profit almost
immediately. The answer to that state of affairs, conclud-
ed Scott, was to reduce expenses, and do so quickly.
With that in mind, Grassel and Scott studied the service
department. According to Scott they determined that the
service department was overstaffed.15 They also deter-
mined (again according to Scott) that the most efficient
way to staff the service department would be to use ma-
chanics who each could handle any kind of repair job
that came in. Romano had not organized things that
way. For example Cerul, did only new-car preparation
and Latocha did only front-end work.
Scott testified that it was these considerations that led
to the layoffs of Latocha and Melcher, both of whom,
said Scott, were specialists rather than the kind of broad-
ly skilled employees he wanted.16 As for the timing of
the dismissals, Scott had earlier concluded that he would
make no changes for one month following his April 5 ac-
quisition of the dealership. A new month began, in
Scott's view, on the week beginning May 3. Latocha's
dismissal (along with Melcher's and Sackett's) followed
promptly.
IX. LATOCHA'S DISMISSAL-CONCLUSION
I am convinced that Scott did decide that as of early
May Respondent should decrease its employee comple-
ment; that Scott wanted the work force to be composed
of broadly skilled employees; and that Latocha worked
as a specialist, doing only front-end work. But none of
that explains why Respondent chose to discharge Lato-
cha. Respondent employed a number of specialists (apart
from the three discharged employees). Yet Respondent
provided no information on why Latocha, rather than
any one of the other mechanics doing specialized work,
was selected for discharge.
Laudig indicated that Latocha's discharge was related
to the "tension" that Latocha had caused. "Causing ten-
sion" is not necessarily synonomous with "engaging in
is Scott's testimony, together with employment records, shows that
not counting the employee responsible for new-car preparation work the
service department work force numbered as follows in 1982.
Early April the complement was 10 when Scott acquired dealership;
late Apnl-May 4-9 (Ormaman goes on voluntary layoff); post-May 4-7
(Latocha and Melcher discharges), mid-May-6 (William Latocha out on
disability); late June-8 (Anderson hired; William Latocha returns);
August-9 (Ormanian returns), September-9 (Ormanian leaves, replaced
by McCarthy),, November and thereafter-10 (Schill replaces Mattice
who is not out on disability, then Mattice returns)
is Scott also testified about a "skill leveling" program, whereby me-
chanics were divided into four categories, by degree of skill. Scott never
made clear, however, whether the skill leveling program had anything to
do with the layoffs and, if so, how.
protected activities." But, clearly, it can have that mean-
ing. And here: Latocha was the preeminent employee
spokesman; and shortly before his discharge his protect-
ed activities became the subject of Scott's anger.
It could be that Respondent nonetheless discharged
Latocha for entirely lawful reasons. But on this record it
was incumbent on Respondent to show either that Laud-
ing was wrong in indicating-that Latocha was discharged
for causing tension, or that the tension that Latocha
caused had nothing to do with his protected activities.
Because Respondent did not do so, my conclusion is that
Latocha would not have been discharged but for his pro-
tected activities, and that Respondent accordingly violat-
ed Section 8(a)(1) of the Act.
X. MELCHER'S DISMISSAL
As discussed earlier, Melcher was "placed on indefi-
nite lay-off'-discharged, actually-on May 4. The Gen-
eral Counsel claims that that action was caused by Mel-
cher's participation in protected activities. Melcher
helped bring the Union to Romano, which Respondent
knew. During Scott's April 7 talk, Melcher told Service
Manager Grassel, in response to Grassel's statement, that
Scott was "a good, fair man," that he "certainly hoped
so because we had filed charges . against Anthony
Romano and it could happen to him [Scott] if he
wasn't." During the Cerul incident, Melcher suggested
to Scott that Scott was a "liar" for, in Melcher's view,
reneging on a promise not to make any changes adverse
to the employees. And on May 3 Melcher openly handed
out union authorization cards in the shop.
Respondent, in turn, makes the same claims about Mel-
cher's discharge as it did about Latocha's: Melcher's
work was limited to heavy engine work, mostly Omega
engine overhauls, plus all the work on the few foreign
cars that came into the shop. Melcher was picked for
discharge because Respondent wanted to reduce the size
of the work force and wanted generalists, not specialists.
As in Latocha's case, Respondent failed to show why
it chose to discharge Melcher, rather than one of the
other specialists. Nonetheless, my conclusion is that the
evidence fails to support the claim that Respondent dis-
charged Melcher for impermissible reasons. As stated
earlier, Respondent exhibited no union animus. Thus
Melcher's actions in helping start the Union under
Romano and his authorization card activity would not
have led Melcher to be fired. As for Melcher's com-
ments to Grassel and Scott, neither indicated any con-
cern 'about them at the time Melcher made them. And
they hardly constitute major activity on Melcher's part.
In contrast, service department employee Chet Orzel
drew fire from Scott for his comments during the Cerul
incident. And, as Respondent knew, Orzel accompanied
Latocha to an attorney regarding a claim against Re-
spondent. Yet Respondent took no action against Orzel.
(Orzel remained in Respondent's employ at the time of
the hearing in his proceeding.)
Two considerations remain . First, the only three em-
ployees to be discharged by Respondent during Re-
spondent's first months of operation were Latocha, Mel-
cher, and Sackett. And Respondent knew that they were
BILL SCOTT OLDSMOBILE 1085
the three who were mainly responsible for organizing
Roman's employees. Second, Respondent gave the same
reasons for discharging Latocha as it gave for discharg-
ing Melcher. Yet I found that in Latocha's case Re-
spondent's stated reasons were pretextual. A finding of
violation in Latocha's case and no violation in Melcher's
arguably is inconsistent.
But as for the first consideration-that the only three
employees fired (initially) were the three principal orga-
nizers of the union-my conclusion is that that was coin-
cidental. The record as a whole shows that Scott would
not hold a grudge against a few employees because they
were active organizing a union, especially as that activity
occurred several years earlier under a different owner.
The second consideration-inconsistency in my find-
ings as between Latocha's discharge and Melcher's-is
more serious. But in Latocha's case, a supervisor
(Laudig) suggested that Respondent's stated reasons for
the discharge were pretextual. There is no such evidence
about Melcher's discharge. Moreover Latocha was the
preeminent employee spokesman, and in that role he was
aggressive and outspoken. Melcher, on the other hand,
generally stayed on the sidelines. Under all the circum-
stances, my conclusion is that although Respondent gave
the same reasons for its discharge of Melcher as for that
of Latocha, in Latocha's case those reasons were pretex-
tual and in Melcher's case they `were not. 17'
XL SACKETT'S DISMISSAL
Sackett, along with Latocha and Melcher, was instru-
mental in getting Romano's employees organized. During
Scott's introductory talk,(on April 7)'Sackett asked Scott
about his plans concerning the employees' seniority
rights and sick leave. When Scott responded that he was
a "fair man," Sackett stated: "We have been through this
for a long time and . . . we'd rather have something in
writing than just word of mouth.' Except for Latocha,
Sackett was the only employee to question Scott at that
meeting. Then, at Smokey's Sackett (again along with
Latocha) was the principal spokesman in the employees'
exchanges with Grassel. Sackett and fellow body shop
employee John Santa spoke directly to Scott about em-
ployee compensation matters. On May 3, Sackett handed
out union authorization cards in the body shop. (He did
so without objection from Body Shop Supervisor Tier-
ney. In fact, at Sackett's request,' Tierney signed each
card as a witness.) And on May 4 Sackett had an angry
exchange with DeBottis.
Shortly after the DeBottis meeting ended, Sackett was
discharged (as described earlier). The General Counsel
urges that Respondent be found to have fired Sackett for
the activities just discussed. Respondent, on the other
hand, contends that Sackett was layed off solely because
Scott wanted to reduce' the number of employees in the
body shop. The evidence supports Respondent.
Body shop business was light in April and May. There
were three employees in the body shop at the time (plus
manager Tierney): Sackett and Sauta, who each did
body repair work but did not paint; and Pete Amato,
who painted but did no body work." Scott wanted to
reduce the work force by one, and that one had to be
one of the two body repair men. Scott testified that he
chose Sackett to dismiss because Sauta was many years
senior to Sackett. I credit Scott.
My main concern is that Respondent did not recall
Sackett, With minor exception, the body shop work
force remained at, two employees from May into late
September. But Santa left for medical reasons in July.
Respondent hired Charles Jackson to replace Sauta.
Then Respondent hired another body repair employee
and fired Jackson.18 A new body shop manager, Lee
Hood, was on the job at the time Sauta left, and he made
the hiring decisions. Scott, however, did not suggest to
Hood that he consider Sackett for either opening. One
would ordinarily expect Scott to have mentioned Sackett
to Hood unless Scott had some reason not to want to
employ Sackett. And that reason could not be connected
with the quality of Sackett's work because Respondent
agreed that it was entirely satisfactory.
The only reason Scott gave for not asking Hood to
consider Scott ' was that Scott wanted to leave the body
shop's personnel matters entirely in Hood's hands. The
issue is a closed one, particularly in view of my conclu-
sion that Respondent fired Latocha for unlawful reasons.
But on balance I credit Scott. I simply do not, believe
that Scott would have held any, grudge against Sackett
for the kinds of protected activity in ,which Sackett en-
gaged.
XII. THE JOHNNIE'S POULTRY ALLEGATIONS
The General Counsel has additionally alleged that the
Company, by its attorney, Vaughan Lang, violated Sec-
tion 8(a)(1) of the Act by interrogating several Scott em-
ployees in preparation for the instant hearing,' without
observing the safeguards mandated by Johnnie's Poultry
Co.. 19
An employer may, in preparation for a hearing, ques-
tion employees on matters involving "their Section 7
rights without incurring 8(a)(1) liability, provided that
the employer communicates to each employee inter-
viewed the purpose of the questioning, assures him that
no reprisal will take place, and obtains his participation
on a voluntary basis.
Lang's interviews with the employees took place on
January 13, 1983, in Scott's office. Each employee was
questioned individually. Eight persons, all of whom are
still employed at Scott Olds, testified concerning the
interviews. William Latocha was the sole witness called
by the General Counsel. The remaining seven, although
called by Respondent, tended to corroborate Latocha in
at least some respects. And Lang did not testify.
As I add up the testimony on point, Lang did advise
each employee that the employee would suffer no repris-
als, whatever answers he might give to Lang's questions.
]v I have considered whether Respondent's failure to recall Melcher
was discriminatory But I credit Scott's testimony about the hiring of
new employees in that I think that Scott believed that the new employees
had skills that Melcher did not have.
ie Other body shop employees were hired in the autumn But the em-
ployees hired then could all do both body work and paint.
'9 146 NLRB 770, 775 (1964), enf. denied 344 F 2d 617 (8th Car. 1965).
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But in a number of instances Lang neither told the em-
ployee that the purpose of his questions was to prepare
Respondent's defense to unfair labor practice charges nor
advised the employee that participation in the interview
was voluntary. Respondent thereby violated the Act: See
Standard-Coosa-Thatcher, Inc., 257 NLRB 304 (1981),
enfd. 691 F.2d 1133 (4th Cir. 1982).
CONCLUSIONS OF LAW
1. Respondent Bill Scott Oldsmobile is an employer
engaged in commerce within the meaning of Section 2(2)
and (6) of the Act.
2. Respondent violated Section 8(a)(1) of the Act
when its agent William Scott coercively responded to
employees John Latocha and Chet Orzel for having
voiced complaints on behalf of the other employees,
about management decisions that affected terms and con-
ditions of employment.
3. Respondent violated Section 8(a)(1) of the Act by
discharging John Latocha on May 4, 1982, for having
engaged in protected concerted activity.
4. Respondent violated Section 8(a)(1) of the Act
when its attorney, Vaughn D. Lang, interviewed em-
ployees in preparation for the instant hearing without in-
forming them of the purpose of the interviews and with-
out advising them that their participation was voluntary.
5. The above unfair labor practices affected commerce
within the meaning of Section 2(6) and (7)of the Act.
6. Respondent has not otherwise violated the Act.
THE REMEDY
The recommended Order will require Respondent to
reinstate Latocha and to make him whole for any loss of
earnings he may have suffered by reason of his unlawful
discharge. Backpay shall be calculated in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest as provided in Florida Steel Corp., 231 NLRB 651
(1977).
In addition Respondent will be required to cease and
desist from its unlawful acts, to notify its employees of
the Board's Order, and to take various other actions re-
lating to the above requirements.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed20
ORDER
The Respondent, Bill Scott Oldsmobile, Syracuse,
New York, and its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively responding to employees who voice
complaints on behalf of their fellow employees about
management decisions which affect terms and conditions
of employment.
(b) Interviewing employees in preparation for defense
of unfair labor practice proceedings without first inform-
ing them of the purpose of the interviews and with ad-
vising them that their participation is voluntary.
(c) Discharging employees for engaging in protected
concerted activity.
(d) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed in Section 7, of the National Labor Re-
lations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to reinstate John Latocha to his former posi-
tion or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges previously enjoyed.
(b) Make John Latocha whole for any loss of earnings
he may have suffered by reason of his unlawful dis-
charge in the manner set forth in the remedy section of
this decision.
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payments records, time-
cards, personnel records and reports, all other records
necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Post in conspicuous places at Respondent's place of
business, including all places where notices to employees
are customarily posted, for a period of 60 days, copies of
the attached notice marked "Appendix."21 Copies of the
notice, on forms provided by the Regional Director for
Region 3, after being signed by a representative of Re-
spondent, shall be immediately posted and maintained for
60 consecutive days thereafter. Respondent shall take
reasonable steps to ensure that the notices are not al-
tered, defaced, or covered by other material.
Vie) Notify the Regional Director in writing within 20
days for the date of this Order, what steps Respondent
has taken to comply.
20 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
21 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 "