Boardwalk Motors

National Labor Relations Board - Board Decisions

Feb 26, 1999

327 N.L.R.B. 784 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 784
Boardwalk Motors and International Association of
Machinists and Aerospace Workers, Peninsula
Lodge No. 1414, AFL–CIO. Case 20–CA–26507
February 26, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME
On May 29, 1997, Administrative Law Judge David G.
Heilbrun issued the attached decision. The Charging
Party filed an exception and a supporting brief, and the
Respondent filed a brief in opposition.
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 decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Boardwalk Motors, Redwood
City, California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.

Kathleen C. Schneider and Lucille L. Rosen, Esqs., for the Gen-
eral Counsel.
Joseph P. Ryan (Littler, Mendelson, Fastiff, Tichy & Mathi-
ason, P.C.), of San Francisco,California, for the Respon-
dent.
David A. Rosenfeld (Van Bourg, Weinberg, Roger & Rosen-
feld), of Oakland, California, for the Charging Party.

DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This
case was tried in San Mateo, California, on May 9 and 10,
1996. The charge was filed by International Association of
Machinists and Aerospace Workers (IAM), Peninsula Lodge
No. 1414, the Union, on January 13, 1995 (amended, February
10, 1995),1 and the complaint issued March 30, 1995.
The primary issues are whether Boardwalk Motors, Respon-
dent, unlawfully solicited, threatened, and interrogated its em-
ployees by various verbalisms, then caused the termination of
an employee because he assisted the Union and to discourage
other employees from so assisting. Such alleged conduct is
asserted in the complaint to be in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act.
On the entire record, including my observation of witnesses,
and after considering briefs filed by the General Counsel
(joined in by the Charging Party) and the Respondent, I make
the following

1 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
1 All dates and named months hereafter are in 1994, unless otherwise
indicated.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, engages in the retail sale of
automobiles at its facility in Redwood City, California, where
in the conduct of its business operations it annually derives
gross revenues in excess of $500,000, while purchasing and
receiving goods valued in excess of $5000 which originated
outside the State of California. Respondent admits and I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Summary
Respondent handles the cars of several domestic and foreign
automakers. Service work for these various car lines is done in
workbays that are physically separated. The two largest work-
bays are those for Jeep/Eagle (plus Chrysler/Plymouth) and
Volkswagen/Lotus, which between them take up most of the
service department’s floor area.
Respondent has had lengthy collective-bargaining relations
with the Union for its service department. A proposed new
contract was signed by the parties in September 1993, and
made conditionally effective on any ratification from that time
until October 15, 1997. However ratification did not actually
occur until late 1994. The recognition clause of this now effec-
tive contract covers only service technicians and service advi-
sors in its literal terminology.
Certain management changes occurred in late summer 1994,
followed by increasing attention of the parties to resolving their
yet unratified contract. In the course of this several discussions
were carried out by new management personnel with Anthony
Matthew Mattos, a 7-year service department employee and the
union steward for Jeep/Eagle service operations. Mattos had
just been officially elevated to a vacant shop foreman job as
this was happening.
Mattos became increasingly annoyed and resentful about
these approaches. Then, virtually on the eve of an expected
ratification vote, he quit and walked off the premises. Within
hours Mattos reconsidered his action, and sought to acquire
back his job with help from the Union. The parties disagree as
to whether any communication to such effect was made by the
Union or received by Respondent. Mattos has not worked for
Respondent since the day he quit, and, insofar as is known, his
former position of shop foreman has not been directly filled.
B. Sufficiency and Relationship of the Charge, as Amended, as
a Predicate to this Complaint
The hearing commenced with consideration of Respondent
presenting a written motion to dismiss. This motion was based
on a contention that the complaint was unsupported by any
specific factual allegation of an underlying unfair labor practice
charge. This, in Respondent’s view, deprived the General
Counsel of a valid basis to proceed, and amounted to an ab-
sence of jurisdiction for this litigation.
Counsel for the General Counsel and the Charging Party
each argued in response that the charge, as amended, was suffi-
cient to support such allegations as the complaint contained,
327 NLRB No. 142
BOARDWALK MOTORS 785
and particularly that of Mattos having been unlawfully termi-
nated even though he was not named in a charge.
I denied the motion to dismiss, at the same time inviting
counsel for Respondent to renew it when briefing the case.
This was done by Respondent, with extensive briefing devoted
to the point in particular reliance on Redd-I, Inc., 290 NLRB
1115 (1988), G. W. Galloway Co. v. NLRB, 856 F.2d 275 (D.C.
Cir. 1988), Nickles Bakery, 296 NLRB 927 (1989), and Lotus
Suites, Inc. v. NLRB, 32 F.3d 588 (D.C. Cir. 1994). The Gen-
eral Counsel anticipated this revival of the point, and also de-
voted a considerable portion of its brief to counter arguments
made on the basis of assertedly controlling authority.
Some background is also present that enlarges on literal
phrasings of the charge, amended charge and complaint. In the
precomplaint phase of investigating the charge and amended
charge, the assigned Board agent twice wrote to Respondent’s
counsel inviting the presentation of evidence relating to the
case.
These letters, dated February 9 and 27, 1995, respectively,
referred to claimed verbalisms of employer agents during the
week-long period November 9–16, and to desired information
about the job titled shop foreman. In a separate vein a pre-
complaint letter from Respondent Attorney J. Richard Thesing
to the investigating Board agent, dated March 23, 1995, re-
sponds to a proposed settlement of the case, but expresses “con-
fus[ion]” as to why Mattos is named in the course of dealings.
Section 10(b) of the Act reads, in part and without regard to
its proviso creating a statute of limitations, that whenever an
unfair labor practice is charged the Board shall have the power
to issue “a complaint stating the charges in that respect, and
containing a notice of hearing . . . .” It is well to understand
that the “charges” (in that respect) just quoted refer to those
allegations expressed in the complaint, not whatever phrasings
were made by a charging party as initiator of Board processes.
This well-settled notion of how notice of specific accusatory
claims are made, was once described in its most fundamental
sense as follows:

The complaint, much like a pleading in a proceeding
before a court, is designed to notify the adverse party of
the claims that are to be adjudicated so that he may pre-
pare his case, and to set a standard of relevance which
shall govern the proceedings at the hearing.
The charge has a lesser function. It is not designed to
give notice to the person complained of or to limit the
hearings or to restrict the scope of the final order.

[T]he function [serves to draw the Board’s attention to a
cause] . . . .

not abstractly or in an area not within the jurisdiction
of the Board, but by alleging that some person has en-
gaged in or is engaging in one of the unfair labor prac-
tices defined in Section 8(a) . . . of the Act. Douds v.
Int’l Longshoremen’s Assn., 241 F.2d 278, 283–284
(2nd Cir. 1957).

The tension between charge and complaint is hardly a new
one in development of procedural jurisprudence for litigation
before the Board. In National Licorice Co. v. NLRB,
309 U.S. 350 (1950), the Supreme Court wrote:

Whatever restrictions the requirements of a charge may be
thought to place upon subsequent proceedings by the Board,
we can find no warrant in the language or purposes of the Act
for saying that it precludes the Board from dealing adequately
with unfair labor practices which are related to those alleged
in the charge and which grow out of them while the proceed-
ing is pending before the Board. [309 U.S., above at 369.]

Respondent correctly points out here that this theme does not
give the Board carte blanche to expand the charge as it might
please, but latitude in keeping with the statute is allowed. In
Labor Board v. Fant Milling Co., 360 U.S. 301 (1959), the
several pertinent principles coalesced. The Supreme Court
wrote first that a charge “is not to be measured by the standards
applicable to a pleading in a private lawsuit.” 360 U.S., above
at 307. Its purpose instead is “merely to set in motion the ma-
chinery of an inquiry.” Id. (citing Labor Board v. Indiana &
Michigan Electric Co., 318 U.S. 9, 18 (1943)). The Fant Mill-
ing opinion continued as follows:

To confine the Board in its inquiry and in framing the
complaint to the specific matters alleged in the charge
would reduce the statutory machinery to a vehicle for the
vindication of private rights. This would be alien to the
basic purpose of the Act.
. . . .
Once its jurisdiction is invoked the Board must be left
free to make full inquiry under its broad investigatory
power in order properly to discharge the duty of protecting
public rights which Congress has imposed upon it. There
can be no justification for confining such an inquiry to the
precise particularizations of a charge. [360 U.S. above at
307–308.]

The Board decided Redd-I against this background of author-
ity, focusing on its “traditional” test for what in a charge is
“closely related” to an eventual complaint. It is important to
recognize that the procedural issue in Redd-I arose in the con-
text of subject matter in a charge once withdrawn and sought to
be revived. Neither that situation nor instances where a pro-
posed complaint amendment is arguably “closely related” to a
complaint while also arguably “time-barred” under Section
10(b) of the Act are involved in this technical issue. See gener-
ally Exber, Inc. v. NLRB, 390 F.2d 127 (9th Cir. 1968), affg. El
Cortez Hotel, 160 NLRB 1442 (1966); and NLRB v. Dinion
Coil Co., 201 F.2d 484 (2d Cir. 1952). Notably the court in
Exber, Inc. added two useful conditions in applying the
“closely related” test; namely, that the allegation under scrutiny
(1) be “not inconsistent” with the charge, and (2) that it “clari-
fies” while properly relating back to the charge.
The Board chose Redd-I to refine considerable past judicial
expression about “closely related” as a concept, and adopted
three “look[s]” as factors to consider when applying the tradi-
tional test. While laden with attention to the claimed untimeli-
ness of an attempted complaint amendment in Redd-I, the fac-
tors are nonetheless significant here. As paraphrased they are:

First, the allegations are “of the same class” as otherwise
charged, meaning of the same legal theory and usually the
same section of the Act. Second, the question of whether “the
same factual situation or sequence of events” needs examina-
tion. Third, pondering should treat whether a respondent
would raise the same or similar defenses to the expanded alle-
gation; meaning whether it is reasonably likely that similar
evidence would be preserved and prepared for use in defend-
ing the brace of allegations. [Redd-I, above at 1118.]

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 786
A line of cases preceding Redd-I had decided the import of
printed language appearing on then-charge form NLRB–401
(now 501). In Clark Equipment Co., 278 NLRB 498 (1986),
the issue was whether allegations of independent 8(a)(1) viola-
tions could be made in a complaint, where the original and
amended charge of the proceeding contained only descriptive
claims of 8(a)(3) and (5) conduct. The Board directly disposed
of this issue by holding that such independent 8(a)(1) viola-
tions, although “dependent solely” on printed language of the
charge form, were sufficient and the complaint was valid in
such regard. The printing on which the Board relied read:

By the above and other acts, the above-named employer has
interfered with, restrained and coerced employees in the exer-
cise of rights guaranteed in Section 7 of the Act.

Shortly after Clark Equipment came out the Board decided
an even narrower issue about matters specified in a charge, as
to whether they closely related to a subsequent complaint. This
holding, G. W. Galloway Co., 281 NLRB 262 (1986), turned
precisely on construing printed “customary [and] standard . . .
other acts” language of a charge form. The Board permitted
consideration of a complaint alleging only the 8(a)(1) conduct
of “threaten[ing] employees with termination” for striking,
while above preprinted wording the charge had raised only the
claimed discriminatory discharge of an employee under Section
8(a)(3) (and derivatively under Section 8(a)(1)).
When the employer petitioned for review of this holding a
court of appeals held “other acts” preprinted on a charge form
was “boiler-plate”; not sufficient to satisfy the Fant Milling rule
of litigating only matters which amounted to sharing “a signifi-
cant factual relationship” between allegations in the charge and
those in the complaint. G. W. Galloway Co. v. NLRB, above at
282. The court had traced legislative history and past judicial
interpretations germane to the point, concluding from this that
reliance on the preprinted language was unavailing and that a
“necessary connection between the incident alleged in the
charge and that averred in the complaint” had not been estab-
lished. Id. at 282. This court also expressly noted (1) that while
the employee’s discharge and the incipient strike (about which
the alleged threats of termination were made by that employer’s
president) occurred only 1 day apart this did not give them
“common features,” and (2) there was no indication from the
case, or any contention made by the Board, that the striking
employees were concerned about the discharge, or even aware
of it. On this basis the Board’s order was set aside.
Nickles Bakery was presented to the Board for decision on
Cross-Motions for Summary Judgment. It involved the pure
question of whether an 8(a)(3) charge (alleged discriminatory
action against the charging party, an individual) could be en-
larged on because of typical preprinted charge form language
reading “By these and other acts . . . .” What had resulted was
a complaint alleging only maintenance of an unlawful no-
solicitation rule, thus invoking Section 8(a)(1) as the formally
alleged violation. As a matter of doctrine the Board reexam-
ined its own precedent in light of both Galloway (as decided by
the court of appeals) and Redd-I. On doing so the Board found
no sufficient basis to continue exempting 8(a)(1) complaint
allegations from the traditional “closely related” test. Rather
the Board would thereafter require a “factual nexus” between
the charge and complaint allegations, equally so with 8(a)(1)
allegations as with all others arising under Section 8(a). The
Board expressly overruled its decisions to the contrary, and
stated a dual rationale for the action.
Reasons for the shift were (1) the mandate embodied in Sec-
tion 10(b) that the Board “not originate complaints on its own
initiative” (citing Galloway v. NLRB, above at 280), and (2) the
administrative requirement that charges contain a “clear and
concise statement” of facts was seen as having become virtually
meaningless. In addition the Board noted two other harmoniz-
ing factors, one being that a charging party’s entitlement to file
any new or amended charge remained unimpeded. Secondly,
that the General Counsel’s own Casehandling Manual provided
that when an unamended charge was too narrow any complaint
issued on such a charge should cover only matter related to its
narrow specifications. Procedurally, Nickles Bakery was actu-
ally remanded because the General Counsel was asserting the
indistinct possibility of an adequately related factual nexus.
In Embassy Suites Resort, 309 NLRB 1313 (1992), a divided
Board found a violation under then-applicable precedent.
There the Nickles Bakery case was distinguished as having a
“sole difference” of significance to the Board. In Embassy
Suites the charging party, a labor organization, had typed in
broad language having general reference to Section 8(a)(3) and
(1), respectively. The resultant complaint alleged only 8(a)(1)
violations; these of a variety constituting creation of the im-
pression of surveillance, plus threats to withhold a wage in-
crease and reduce employee amenities. The Board held that
typing in even a generalized and concededly unspecific claim
of unfair labor practices elevated the charge to one generated
by the charging party and not merely based on the agency’s
own preprinted language.
The Board’s enforcement effort in Embassy Suites Resort
was roundly rejected by the court of appeals, more pointedly so
than that which had failed in Galloway v. NLRB. The court
found Embassy Suites to be untenable, and that “boilerplate”
allegations of 8(a)(1) violations by the employer were “utterly
lacking in factual specificity.” The court closed its own opin-
ion in Lotus Suites, Inc. v. NLRB as follows:

To allow the Board to issue a complaint based upon a charge
containing only a boilerplate § 8(a)(1) allegation, however,
unbounded by any specific facts, is “tantamount to allowing
the Board to enlarge its jurisdiction beyond that given it by
Congress.” (citing Galloway v. NLRB, above at 279). Be-
cause the Board has failed to (nor could it) establish a suffi-
cient factual connection between the general terms of the
charge and the specific allegations of the complaint, the
Board’s order must be set aside. [32 F.3d, above at 592.]

Turning to the case at hand, its threshold issue calls for ap-
plication of doctrine just discussed. There is no practical dis-
tinction between the Union’s original charge and that filed a
month later as first amended charge. Each charge listed Section
8(a)(1), (3), and (5) as those portions of the Act involved, and
each devoted an entry as basis of the charge to language appro-
priate to the respective subsections (in the order of Sec. 8(a)(1),
(5), and (3)). However the complaint did not allege any 8(a)(5)
violation, so the issue is confined to whether Mattos’ termina-
tion may now be brought for adjudication. Excluding what was
composed by the Union as a referencing statement under Sec-
tion 8(a)(5), the charge and amended charge read identically as
follows:

Within the last six months preceding the filing of this
charge, the above-named employer, by and through its
BOARDWALK MOTORS 787
agent, has restrained and coerced employees in the exer-
cise of their rights guaranteed by Section 7, by various
means including, but not limited to, threats, inducements,
interrogations, harassment, surveillance, and other similar
and/or related acts.
Within the last six months preceding the filing of this
charge, the above-named employer has discriminated
against its employees on account of their Union and/or
protected activities.

All allegedly unlawful conduct was compressed into what I
find to be the 1-week period of November 9–16. As shall be
detailed below, Respondent was pressing for a favorable resolu-
tion of its longstanding, if not festering, bargaining stalemate
respecting employee ratification of what had been agreed on by
negotiators a year previously. It embarked on a three-way ap-
proach. This simultaneously (1) flirted with an involvement in
spurring decertification of the Union, (2) proposed to slyly
educate bargaining unit members about how, when and why its
final contract offer would soon be implemented, and (3) recon-
cilably girded for an uncertain outcome to the imminently ex-
pected ratification vote. In his testimony about exposure to
these tactics, Mattos arguably supported the notion of threats,
said explicitly that he felt “harass[ed],” and generally saw him-
self as the chief target of management’s collateral attentions
during that eventful week.
I believe from this that on a full exposition of facts the re-
quirements of both Nickles Bakery and Redd-I have been met.
In compliance with Nickles both a legal and factual nexus is
present as between the charge and complaint. The Union al-
leged “discrimination” against employees, one of which was
Mattos. Further, his termination from employment, if found to
be unlawfully caused by the employer, constitutes a derivative
violation of Section 8(a)(1), which the charge plainly states has
been “various[ly]” violated by specifically described conduct,
given in illustration but not in limitation. As a factual matter
Mattos was keyed on by Respondent, and a major amount of
the alleged 8(a)(1) conduct just sapped his stability as a 7-year
employee with high-profile union steward status to the point
that he impulsively acted out a verbal quitting of employment.
Yet it is that very quitting which the General Counsel has al-
leged to be unlawful, by pleading in the complaint how this was
“caused” by Respondent, and relatedly explaining in an open-
ing statement to the hearing that the quit was physically and
mentally distressing, brought Mattos “total frustration,” and
caused intolerable “intimidation.” In sum, this end of Mattos’
long employment with Respondent was a stark phenomenon
“necessarily enmeshed” in the allegations of specific and cate-
gorically recognizable forms of 8(a)(1) conduct. See Transport
America, 320 NLRB 882, 889 (1996); Cf. Nippondenso Mfg.
U.S.A., 299 NLRB 545 (1990).
The three-prong test of Redd-I is also satisfied. A related
class of violations is involved, all turning on legal theory that
Respondent was unlawfully attempting to rid itself from, or
seriously weaken, the Union. Further, this first prong of Redd-I
is concerned with timeliness aspects of a proceeding, and that
factor as it arises under Section 10(b) is not present here. Cf.
Prestige Ford, 320 NLRB 1172 (1996). Second, the factual
situation and sequence of events is squeezed into early to mid-
November, when Respondent was most active in pressing its
objective. Third, the interrelationship of events is such that
Respondent would reasonably have anticipated evidence con-
sisting of testimony from its management personnel and struc-
turing of documentary material, this in expectation of how to
prepare a defense to accusations of general encroachment on
Section 7 rights and employee-specific discrimination in a
small bargaining unit of two dozen or so employees. See Ree-
bie Storage & Moving Co., 313 NLRB 510 (1993); Whitewood
Maintenance Co., 292 NLRB 1159, 1169–1170 (1989).
As Respondent commends be done, I have reviewed the or-
der granting partial dismissal, rendered August 28, 1995, by
Administrative Law Judge Jay R. Pollack in Towne Ford, Inc.,
Case 20–CA–26250. However, I do not find it “strikingly simi-
lar” to the threshold issue here, nor that it supports Respon-
dent’s general contentions in this case resting on Section 10(b)
of the Act.
Judge Pollack dismissed an 8(a)(5) allegation contained in
the complaint of one case which had been consolidated for
hearing with another. The charge underlying this dismissal
(from Case 20–CA–26250) was one in which no 8(a)(5) allega-
tion had been made, nor was that section of the Act even listed
in the preamble to a requisite “clear and concise statement” as
basis for the charge. Indeed he found, citing Redd-I, Nickles
Bakery, Galloway v. NLRB, and Lotus Suites v. NLRB, that the
complaint was devoid of a charge against that employer of
either “generally [or in a specific way] refus[ing] to bargain.”
Here, in contrast, there is at least an express invocation of Sec-
tion 8(a)(3) by unfair labor practice category, and a composed
basis of the charge in which “discrimination”—the conduct by
an employer sought to be prevented by the Act—is stated. In
essence, I view Judge Pollack’s partial dismissal as a reflection
of what the underlying charge in his case lacked, versus the
necessity of interpreting and applying what an underlying
charge does contain in reference to a stated section of the Act.
Accordingly, I reaffirm my denial of Respondent’s motion to
dismiss, as made on grounds that the Board is without jurisdic-
tion to bring this case. I do not in any manner rely on Attorney
Thesing’s letter dated March 23, 1995, in development of this
ruling.
C. Evidence
The contract bargaining that took over a year to settle was
dormant for two long periods of time. However, the refined
version of a proposed new contract was finally submitted for
ratification by service department employees in late summer
1994. They rejected it. There were two additional bargaining
sessions after this rejection. Then Respondent’s attorney and
principal negotiator, Thesing, wrote on November 10 to Don
Barbe, the Union’s business representative and its principal
negotiator, advising of an intention to implement the em-
ployer’s final offer effective November 16. This letter also
confirmed a minor refinement to content of the conditional
agreement, and that Barbe was understood as willing to rec-
ommend the final offer to bargaining unit members.
Respondent had hired Frank Haverkamp on September 6 as
director of service operations for all car lines. Haverkamp re-
ported to Jamie Kopf, who he identified as Respondent’s presi-
dent. He then soon hired Ed Lockett to be service manager for
Jeep/Eagle. By late September Lockett was settling into place
there, while Allen Katz and Gordon Douglas functioned as
service manager for Volkswagen/Lotus and Mitsubishi, respec-
tively. Haverkamp testified to seeing the dealership in disarray
for several reasons. There were various forms of friction within
the business, and, insofar as the service department was con-
cerned, internal conflicts among its employees rooted in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 788
yet-unratified union contract. His familiarizing first 2 weeks on
the job included interviewing all technicians (journeymen auto
mechanics) to learn their strong and weak points. His contact
during this phase for discussion with Mattos was their having
lunch together. Mattos recalled Haverkamp saying he was
unconcerned whether “the shop was going to be a union shop or
nonunion.”
In this overall familiarizing process Haverkamp came to be-
lieve Mattos possessed apparent leadership traits, technical
ability, past valuable training, and a favorable employment
record. He appointed Mattos to the vacant shop foremen job
for Jeep/Eagle (including Chrysler/Plymouth) effective October
3, with a $2.19-per-hour pay increase accompanying this
change. The Jeep/Eagle service operations had about 10 to 12
mechanics at the time.
Events critical to the case began to happen around early No-
vember. Mattos testified that in the first part of that month, on
a date I fix as November 9 or 10, Haverkamp approached his
work stall in the afternoon to ask if Mattos would attempt circu-
lating a decertification petition among his fellow employees for
signature. Mattos was negative toward the idea, and asked why
it even came up after Haverkamp had earlier voiced no opposi-
tion to the Union remaining in place. According to Mattos,
Haverkamp answered nonsensically that he would have 10
good employees quit if the shop went union. Haverkamp added
then that employees in the shop could save $600 a year by not
paying union dues. Mattos responded that these “were a lot of
older guys” who wanted a union contract for job security as
“protection against management.” Mattos testified that this
conversation ended by Haverkamp ridiculing the union contract
as so full of loopholes that any seeming protection against
management’s disapproval (not even for “sneezing”) was like
an illusion. He assertedly closed saying the imminent choice
for employees was a union but no job security or a nonunion
setting of “one big happy family.”
Mattos testified that a few days later he was called into
Haverkamp’s office with Lockett present. They displayed the
pending contract proposal, stating it provided that a shop fore-
man would be nonunion. In fact, a footnote to the bargaining
unit definition of full-time and part-time service technicians
and service advisors fixed “five recognized supervisory em-
ployees” as director of service operations, director of customer
service, assistant customer service manager, shop foreman and
dispatcher. Mattos was pressed to resign from the Union to
achieve the evident desire of management that he do so. Mat-
tos refused, saying he was still the steward for a contract under
negotiation.
That afternoon Haverkamp approached Mattos in his shop
area work station, where mechanic David Porter was also pre-
sent. Haverkamp asked Porter whether he would sign a decerti-
fication petition if Mattos did so. Porter answered that he
would not. Haverkamp retorted how it didn’t matter because
Porter was a good mechanic who didn’t have to worry about
losing a job, but continued adherence to an ineffectual union
was a waste of money.
On the morning of November 15 a copy of Thesing’s No-
vember 10 letter was distributed among employees of the ser-
vice department. Haverkamp soon approached Mattos asking
what employees thought about it. Mattos had received no feed-
back at that point; however, he soon telephoned to Barbe and at
least learned the Union planned a meeting that night at its hall.
Mattos testified that in late morning Haverkamp repeated his
earlier question, which Mattos answered inconsequentially,
except telling Haverkamp of the union meeting being arranged
for after work.
This meeting did take place in early evening, where Barbe
advised the employees present that he was uncertain of any
“legal” effect to the letter. Mattos testified that the following
morning Haverkamp called him in to be questioned about the
meeting. Mattos told him the result was simply that the Union
would soon have a ratification meeting “on the memo and on
the contract.” Still later that morning Mattos encountered
Lockett, who also asked him what was going on about the con-
tract and negotiations. The two were at, or gravitated into,
Lockett’s office, and Mattos closed the door so he could vent
more privately. He testified to carrying on a 10- to 15-minute
conversation with Lockett, animated by his sense that manage-
ment was seeking “to blow the Union out.” Mattos told
Lockett of instances appearing to him as favoritism toward
“nonunion mechanic[s].” This was evidenced by tolerance of
deficiencies in that group even when it reached a “fraudulent”
proportion, while summarily firing certain newly hired mechan-
ics. Mattos recalled Lockett answering that Kopf (termed com-
pany “owner” by Mattos) was tiring of how a labor contract
resolution had dragged out, which could soon mean our “heads
[would] roll and it could cost you your job.”
At midday on November 16 Respondent provided an hour-
long lunch of pizza and refreshments for service department
employees, with Kopf and Haverkamp in attendance. This
event also provided management the opportunity to treat it as a
meeting, address employees, solicit questions about the pending
contract, and express their need to have good, well-trained me-
chanics. In the course of this Haverkamp held out Mattos as an
excellent example of an employee with extensive technical
training and ability, that would make it a sore loss to the dealer-
ship if he left Respondent’s employ.
About 1:30 p.m. that afternoon Haverkamp called Mattos
into his office to again ask about a resignation from the Union.
Mattos answered the same as before, refusing to do this because
of his capacity as the shop steward. Haverkamp then postulated
a strike the next day, asking whether Mattos would “cross the
picket line [or] walk.” When Mattos answered he would walk a
picket line, Haverkamp said he would “run this by” Kopf and
get back. In less than 2 hours Mattos was back in Haverkamp’s
office with Lockett also present. Mattos testified they gave him
the ultimatum of withdrawing from the Union or they would
take away his foreman’s pay. He asked why they pressed this
because a ratification vote was still in the offing, and they had
even just openly praised him for good technical ability. Mat-
tos’ testimony on the question of whether he went on to say
anything more is:

I told them that I was sick and tired of, you know, the
games that they were playing. I’d go home at night, I’d
have dreams about that place, you know, I was, you know,
I’d go home, I’d, you know, you have dreams about your
workplace, of all the tension and all the, you know,
frustration. I told them I was sick and tired of this place,
I’d have headaches, you know, that kind of stuff.
And told them, you know what, I just told them, I told
them to f—k off and I quit.

He then left Haverkamp’s office, locked his toolbox, and
drove away intending to reach Barbe immediately. They soon
met by chance at a Redwood City McDonald’s restaurant, with
BOARDWALK MOTORS 789
Barbe terming Mattos as looking “wild eyed” to suggest some-
thing unsettling had just happened. They went to the union hall
where Barbe saw Mattos as still “very excited at the time, very
nervous and wide-eyed and going all over.” Mattos had related
events that led to his quitting. After discussion Barbe agreed to
write a letter seeking a return to this employment for Mattos.
Barbe testified that he composed such a letter (addressed to
Kopf), signed it the morning of November 17, and left instruc-
tions at his office that it be immediately faxed and mailed. This
communication began with reference to Mattos being repeat-
edly called into a management office on November 16. The
following are excerpts from the letter’s continuation:

Matt, unfortunately, was convinced that management was
forcing him to make a decision that he should not have to
make and chose not to interfere or get caught between man-
agement and the employees. Based on what he considered to
be harassment and an ultimatum, he felt the only recourse that
he had was to resign from Boardwalk. . . . . However, by the
end of the day, he had reconsidered his resignation and au-
thorized me to write this communication offering to return to
work if in fact Boardwalk is willing to reinstate him.

Barbe was not answered, and Haverkamp testified that he had
never seen the letter of November 17 until it was admitted in
evidence at this hearing.
Respondent’s version of events in November is carried in the
testimony of Haverkamp and Lockett. On the initiating contact
between November 10 and 15, Haverkamp testified that its
context was approaches he had experienced from several ser-
vice department personnel who wished to end representation by
the Union. Haverkamp termed it an off the record conversation
concerning Mattos’ “feeling about the Union,” and his response
that smoothing of employee morale hinged on getting “union
issues resolved.” Haverkamp denied making reference to $600
in union dues, or by hyperbole saying that merely sneezing
could get a person fired. He did recall discussion of the protec-
tion/job security subject, about which he referred to “grounds
for termination” based on the pending contract of failure to
maintain manufacturers’ customer satisfaction index (CSI)
levels or 100-percent service production on a consistent basis.
As respecting a decertification petition, Haverkamp testified (in
the aggregate) that both Mattos and Porter had declined to sign
one on his inquiry.
Haverkamp recalled the next major conversation with Mattos
relative to the Union, the contract, or to negotiations occurred
on November 15, when notice of implementation (the Thesing
letter) was distributed throughout the shop. He called Mattos
into his office to ask what the feelings were about this among
employees. Haverkamp recalled Mattos saying only that it was
not “alarm[ing],” but some verbiage was too legalese-like for
everyone to understand.
Haverkamp next testified that the group lunch on November
16 fulfilled a written announcement to service technicians,
informing it would be held to answer questions about contract
implementation. Haverkamp was then told by Kopf that the
implementation taking place that day meant discussion was
needed with shop foremen. This was to be about withdrawing
from the Union, because their jobs were becoming “a non-
bargaining position.” Haverkamp asked Mattos to come into
his office, where Lockett was also present. He placed the start
of this meeting as about 2:30 p.m. He presented the choice to
Mattos of resigning from either a shop steward or a shop fore-
man capacity, but denied that any mention of his pay was asso-
ciated to the choice. Haverkamp recalled Mattos being recon-
ciled to choosing the “withdrawal card,” but not until after a
ratification vote. He told Mattos this was “not an option,” and
was then “stunned” by a verbal outpouring described this way:

He said that I’ve been having nightmares about the place; you
guys have been messing with me, and, you know, putting all
kinds of pressures on me left and right, and this and that, and I
can’t take this bullshit anymore—f—k this place, I’m out of
here.

After Mattos then walked out of his office, Haverkamp im-
mediately prepared a memorandum to employees advising that
Mattos had resigned. He also completed a routine personnel
change form documenting the resignation, and contemporane-
ously prepared notes of the incident. The only significant detail
contained in these notes was phrasing that the final offer im-
plementation was effective “at the start of the days business”
(on November 16). Lockett remembered only bits and pieces
of the episode beyond its general tenor. Additionally, Lockett
denied ever having a closed door meeting in his office with
Mattos.
At the time of his promotion, Mattos was being paid the
technician specialist hourly rate of $21.95 specified in the
pending contract. He later received a written shop foreman job
description. It listed eight functions for that position. Four of
these pertained to contact with regular shop technicians (or
applicants), as this might affect a determination of supervisory
status under Section 2(11) of the Act. These were:

1. Provide the most current and time productive meth-
ods of training to all technicians.
. . . .
6. Assign technicians to areas to clean and maintain in
shop, machine room and grounds outside building.
7. Assist each and all technicians on troublesome re-
pairs.
8. Interview (technical) job applicants for technician
positions, and make effective recommendations for hiring.

Mattos testified that the job description stated, by his appar-
ent interpretation, a responsibility of the shop foreman to disci-
pline employees. However, he was not personally inclined to
accept this as a responsibility, and there is no other evidence
that he administered discipline during his brief tenure. As shop
foreman, Mattos considered that he reported directly to the
dispatcher. However when better customer dealings would
result, he also reported about problem cars directly to Lockett.
A practical difference from his former job was spending more
time to help other mechanics when they experienced problems
with a car. He estimated that variably 50 percent of his work-
day was devoted to mechanical work actually dispatched to
him. The balance of this typical time, also variable, was spent
helping other mechanics and general trouble-shooting.
Sandy Pereira, Mattos’ predecessor, testified that during his
years as shop foreman for Respondent he never did any actual
hiring, but instead only talked to applicants a few times to learn
about their experience. He would then usually speak with the
service manager about the applicant, expressing only what he
found as to their technical abilities. Pereira got his basic work
assignments from a dispatcher, or any service manager who at
the time was his own supervisor. He denied ever engaging in
typical supervisory functions of (1) discharging employees, (2)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790
regularly distributing work, (3) authorizing overtime, (4) im-
posing discipline, or (5) rendering an annual appraisal or any
evaluation. Pereira did have a role in distributing work only
insofar as helping a dispatcher or the service manager choose a
certain technician based on aptitude or mechanical specialty.
Pereira used the word “trouble-shooter” to describe how his
work differed from mechanics. This entailed handling repair
comebacks, and the more demanding mechanical diagnosis for
cars with strange problems. In Pereira’s view these duties,
requiring higher competence plus hopping between mechanics
needing help were the distinguishing features of his role titled
shop foreman.
Mike Genardini testified that he had a typically progressive
4-year career with Respondent of apprentice, technician, and
dispatcher, although he had gone back to technician at the ac-
tual time of terminating in September. This winding up cov-
ered about the final 3 months of his employment, and had some
overlap with Mattos’ time as acting shop foreman. Genardini
twice summarized his observation of Mattos doing his own
work and helping other technicians as being quite similar to
what Pereira had done before him.
Robert Silvernail testified as Respondent’s witness. After an
earlier 3-year span of employment as journeyman technician
for Respondent, Silvernail returned in 1991. He described his
rehire into Volkswagen line servicing as being shop foreman
there with the benefits but not the duties. The regular shop
foreman left around late 1993 or early 1994. This permitted
Silvernail to assume the shop foreman duties about which he
testified. His overview of the job was expressed as follows:

I have many duties. I repair cars. I assist journeymen in the
diagnosis and repair of cars, Volkswagen Motors. I train ap-
prentices. I approve vacation times. I repair shop equipment.
I interview applicants, job applicants (later intimated as only
one). And generally that’s it.

In greater detail, Silvernail recalled that at a busy time in
December 1993 he had changed the work schedule of most
Volkswagen technicians by adding hours to their shift for a full
week. In dealing with this same heavy workload Silvernail also
transferred a technician in from another department. When this
demonstrated that the person had European car experience,
Silvernail then arranged for his permanent assignment under
close supervision. As intermittent matters Silvernail has as-
signed technicians to clean up duty or to road test with a cus-
tomer. As to the one applicant Silvernail interviewed, he rec-
ommended against hiring him because of insufficient technical
ability, and Service Manager Katz did not do so. Silvernail has
periodically recommended technicians for a particular training
class, which is then approved at the final discretion of Katz.
On two occasions Silvernail recommended apprentices for a
wage increase ahead of the program schedule, and this was
approved. He also once recommended a maintenance em-
ployee for the apprentice program, and through his joint deci-
sion with management the person was entered.
D. Credibility
Pereira displayed seemingly good memory, and with no ap-
parent bias. He was direct in presentation, maintaining eye
contact and facial countenance that inspired my belief in his
veracity. I credit his testimony in full.
Genardini was somewhat clipped in his offerings, and tell-
ingly hesitant at times. I believe he lacked an accurate memory
for details, and generally give little weight to his testimony.
Mattos presented somewhat stiffly, or by nervously pausing
sometimes to grope at framing answers. My sense, however, is
that this trait was manifested to achieve detailed accuracy. I
saw no intention to fabricate his testimony, which was notably
consistent over quite a length. Respondent argues vigorously
that Mattos should be disbelieved for several reasons. Most
prominent as among these in my opinion is Mattos’ self-
contradiction concerning when his notes of events were made.
His notes as supposedly written contemporaneously with con-
versations at work over the November 9-16 period appear al-
tered, if not actually even artificially constructed. I have care-
fully considered this unworthy discrepancy, and the other fac-
tors raised by Respondent. The process leaves me convinced
that Mattos succumbed to one pointed departure from truth, but
not that this or other factors should overcome his persuasive
demeanor in the critical performance from a witness stand. My
resultant judgment is to credit him in all material regards.
Barbe had excellent demeanor, and strove palpably to answer
honestly. He seemed to place accuracy above partisan goals.
Barbe was assured in voice tone and mannerisms, while being
impressively reflective to sharpen answers for better meaning.
I confidently credit this witness.
Silvernail was unimpressive and created doubt as to his grasp
of true facts. His style of expression imparted mostly generali-
zations, and only vaguely conveyed how his claimed supervi-
sory duties were accomplished. He had poor witness manner-
isms, and I am unconvinced that any significant weight should
be given to his testimony.
Haverkamp seemed overly suave and self-assured, to the
point that I believe he elevated perception over reality. There
were inconsistencies in his renditions, and I look behind his
sophisticated demeanor to believe that he made partisan slant-
ings. I credit him in limited manner, and not at all where con-
tradicted by Mattos.
Lockett had average demeanor, but seemed loose with facts
and tending to answer from convenience not genuine recall.
Notwithstanding this frailty, I credit his testimony except where
directly contradicted by Mattos.
E. Discussion
1. Supervisory issue
The statutory language of Section 2(11) lists supervisory
powers in the disjunctive. It is not necessary that an individual
possess all these powers to be deemed a supervisor. Instead,
possession of any one of them is sufficient for supervisory
status to be conferred consistent with the Act. This disjunctive
listing of supervisory indicia does not alter the essential con-
junctive requirement that a supervisor must exercise independ-
ent judgment in performing any enumerated function. Only
individuals showing genuine management-like traits should be
considered a supervisor within meaning of the Act, as opposed
to those being “straw bosses, leadmen . . . [or] other minor
supervisory” persons. The status of persons at issue under Sec-
tion 2(11) of the Act is determined by their duties and not a title
or official job classification. In contrast the exercise of some
supervisory authority that is merely routine, clerical, perfunc-
tory, or sporadic does not qualify an individual to be held as a
statutory supervisor. Rather, the test must be what significance
there is to judgments made and directions given. Consequently,
BOARDWALK MOTORS 791
an individual does not become a supervisor simply by giving
some instructions or minor orders to other employees. Relat-
edly, a person is not deemed supervisory from having greater
skills, higher job responsibilities, or more duties than fellow
employees. The Board must judge whether an alleged supervi-
sor’s job involved something more than routine communication
of instructions between management and employees, but with-
out a showing that significant discretion was being exercised.
The Board’s duty is to not construe statutory language too
broadly, because an individual held to be a supervisor is denied
employee rights that are protected under the Act. Chicago
Metallic Corp., 273 NLRB 1677, 1689 (1985); North Shore
Weeklies, Inc., 317 NLRB 1128, 1130 (1995).
In Groves Truck & Trailer, 281 NLRB 1194 (1986), the
Board emphasized a factor that shall apply here. This is to
expressly note how the Act specifies that possession of author-
ity to act independently is determinative, rather than requiring
instances of exercising that authority. Furthermore, the burden
of proving that an individual is a supervisor is on the party
alleging such status. Azusa Ranch Market, 321 NLRB 811, 812
(1996).
Such fundamental principles are applied in cases that I find
useful to the determination here. In Shen Automotive Dealer-
ship Group, 321 NLRB 586 (1996), a service advisor and repair
shop dispatcher, using the title “service manager” on his busi-
ness card, assigned work to mechanics and took calls reporting
a work absence. He had never administered discipline, author-
ized time off, or participated in pay and benefit matters. The
Board considered his job involved nothing more than routine
assigning without any exercise of independent judgment.
In Vincent M. Ippolito, Inc., 313 NLRB 715, 718–719
(1994), the shop foreman of a garbage disposal firm was hourly
paid, receiving the highest rate as among several mechanics
employed there. This was accorded because he had the most
experience as among such mechanics. This greater experience
was utilized when he explained to other employees how to do a
job, or worked with them on certain ones. Otherwise he han-
dled the most difficult jobs himself. The Board adopted a con-
clusion that this shop foreman was not a supervisor within the
meaning of Section 2(11).
In Sears, Roebuck & Co., 304 NLRB 193, 197 (1991), a lead
mechanic reported to a checklist manager in charge of an auto
center’s back shop. This lead mechanic spent a substantial
amount of his time assisting mechanics with difficult problems.
He also recalled assignments and passed out work to the me-
chanics. The Board found an insufficiency of evidence to show
that the lead mechanic truly exercised independent judgment in
making back shop assignments.
I contrast the illustrative holdings of Shen Automotive, Ip-
polito, and Sears, Roebuck with Contractors Cargo Co., Inc.,
218 NLRB 549 (1975), where the leadman, also sometimes
termed the shop supervisor, of a vehicle repair shop assigned all
work, transferred employees between jobs and scheduled over-
time, while himself working variable daily amounts of time
with the tools. However, management ordinarily followed this
person’s recommendations as to workweek changes and lay-
offs. On these facts the Board found him to be a supervisor as
defined in the Act.
The situation with Mattos is more akin to his being an ex-
perienced leadman, and only expected to facilitate the work of
employees closely around him. I have essentially discounted
Silvernail’s overstated description of a shop foreman’s function
in one of Respondent’s service bays, and believe that the much
more limited role testified to by Pereira is closer to the truth.
This was the position which Mattos informally assumed after
Pereira left, as observed by Genardini in testimony which I
credit. The flurry of management changes that accompanied
Haverkamp’s arrival had little effect on how Jeep/Eagle service
operations were actually carried out. The roughly one dozen
technicians of this department were already subject to oversight
by a full-time service manager, and Mattos has not been shown
to have imparted any primary indicators of supervisory status as
defined in Section 2(11).
His written job description was weighted with nonpersonnel
responsibilities, such as concerned tool inventories and shop
equipment. Lockett’s belief as to Mattos’ responsibilities simi-
larly emphasized aspects of equipment, parts availability, spot
trouble-shooting, technical services bulletins, and even curing
outdoor vehicle congestion around the dealer premises. As
another matter of characterization, Haverkamp termed Mattos
his “liaison” to activities within the shop.
In the specific instance where a rank-and-file wage rate mat-
ter was involved, Mattos merely relayed to Lockett, the new
service manager at the time, that Technician Jose Morales had
asked for a pay review. Although Lockett knew at least that
passage of a full year was ordinary policy before a review, his
inquiry to Mattos about any special deservingness of Morales
brought only a comment that he had not been there that long
and the matter was dropped. Lockett also solicited opinions
from Mattos about useful manufacturer’s training classes, but
he was equivocal as to what weight such opinions were given.
Finally, Lockett testified that Mattos had a responsibility as to
progress of apprentices, but this was couched in no more mean-
ingful terms than oversight, monitoring, or the routine-seeming
placement of an apprentice with a certain mechanic.
That the parties voluntarily included a job classification
called shop foreman in their new collective-bargaining agree-
ment is inconsequential to the determination. Rather it is that
during the mere 2 months or so of informal and official func-
tioning as such a shop foreman, Mattos did not perform, nor did
any regular technician in his work area so testify, any duties
involving nonroutine dominion over other employees by the
use of independent judgment in his dealings with them. On this
basis, I hold that Mattos was not a statutory supervisor within
meaning of the Act.
In reaching this conclusion, I have considered the authorities
cited by Respondent in support of its contrary contention.
These are Ribbon Sumyoo Corp., 308 NLRB 956 (1992); DST
Industries, 310 NLRB 957 (1993); and T. K. Harvin & Sons,
316 NLRB 510 (1995). I find both Ribbon Sumyoo and Harvin
& Sons to be fact-intensive cases concerning supervisory is-
sues, and readily distinguishable from the situation here.
DST Industries operated a complex manufacturing facility,
where it engaged in designing, displaying, and marketing
automobile prototypes, trucks, and vans for the automotive
industry. As among four persons whose status was claimed to
be nonsupervisory, one was the location manager for a distant
Los Angeles facility, and solely responsible for carrying out
business goals there. The other three were working leaders and
a floor manager for fiberglass, truck maintenance, and body
shop operations at Michigan headquarters. The two working
leaders were each found to have (1) signed off on timecards, (2)
approved vacation requests, (3) granted employees permission
to leave work early, and (4) effectively recommended the layoff
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792
of surplus employees. This was seen by the Board as responsi-
bly assigning and directing work in their departments by use of
discretion, authority, and the exercise of independent judgment.
Respecting the body shop floor manager over his employment
of short duration, he effected the layoff of an employee without
prior approval, assigned and checked employees’ work, granted
a request to leave work early, rarely performed bargaining unit
work himself, and regularly filled in for the higherranking body
shop manager. On these findings the Board found all individu-
als at issue in DST Industries to be supervisors within meaning
of the Act. This holding provides no persuasive support for
Respondent’s contentions here.
2. The 8(a)(1) allegations
The General Counsel has alleged unlawful verbalisms consti-
tuting solicitation to withdraw support of the Union, plus vari-
ous threats and interrogation. I deal with these by association
to those portions of the complaint where the allegations are
stated.
In paragraph 6(a) the allegation of solicitation is based on
Haverkamp’s conversation with Mattos at his workplace on
November 9 or 10. From credited evidence I find that Haver-
kamp boldly proposed that Mattos sponsor a decertification
petition. An employer’s action is strictly limited in this regard.
Other than ministerial aid it may not instigate or facilitate such
a proceeding, and particularly when there has been no unsolic-
ited inquiry about it. The decision whether to prepare and file a
decertification petition is solely within the province of employ-
ees. Harding Glass Co., 316 NLRB 985 (1995). I find the
allegation of paragraph 6(a) to be supported by sufficient proof.
In paragraph 6(b) the same discussion is involved. Here
Haverkamp’s utterance about sneezing being a dischargable
offense is all that could imply the alleged threat of reduced job
security. I decline to elevate this snide remark to an unfair
labor practice. Rather, it was only more in the nature of a per-
sonal opinion, expressed by an employer’s agent about how a
labor contract might be construed. The choice of this term was
made in obvious jest, a factor drawing down still more from
any significance. I recommend dismissal of this allegation.
Complaint paragraph 7(a) alleges the same conduct as in
6(a), but separated only by time. This refers to the episode on
or about November 14, when Haverkamp conversed with both
Mattos and Porter. Here a second blatant attempt at drumming
up employees to sponsor a decertification petition was done.
This is a direct repetition of unlawful employer action as found
in reference to paragraph 6(a), above.
Paragraph 7(b) alleges unlawful interrogation was also
committed by Haverkamp on this occasion. Here, the General
Counsel contends that Haverkamp’s surrounding remarks es-
tablished impermissible inquiry made under coercive circum-
stances. This consideration of a total context is done in terms
of Rossmore House, 269 NLRB 1176, 1177 (1984). Here the
episode was a fleeting one. To the extent that Porter, not
known as an open supporter of the Union, was questioned, and
without assurances that no reprisals would flow, this allegation
also has merit. See Gondorf, Field, Black & Co., 318 NLRB
996, 1005 (1995).
Complaint paragraph 8 refers to Haverkamp’s private talk
with Mattos on November 15. I cannot find an unlawfulness in
what was done here. Mattos was, after all, both the union stew-
ard and frequent participant in the bargaining sessions. Any
group or resistant reaction to the employer’s implementation is
a matter of fair informational exchange between these parties to
collective bargaining. I dismiss this allegation, inasmuch as it
only refers to the passing inquiries made by Haverkamp on the
day before implementation.
Complaint paragraph 9 contains three allegations. In para-
graph 9(a) it is alleged that Respondent threatened its employ-
ees if a contract ratification was delayed. This was the menac-
ing remark by Lockett that Respondent’s highest official’s dis-
may over slow contract progress could result in a person losing
their job. An employer may not startle employees into a fear
that their own collective and reasonably paced consideration of
when to accept a contract renewal should also be a unilaterally
judged condition of their continued employment. This is a
singularly severe intrusion on basic Section 7 rights. I find
there has been a violation of the Act in this regard.
Paragraph 9(b) alleges the interrogation of Mattos regarding
whether he would cross a picket line or not. Such questioning
is really another form of inquiring about the choice Respondent
sought that he make in the context of it implementing new
terms and conditions of employment based on a bargaining
impasse. Cf. Providence Hospital, 285 NLRB 320, 326 (1987).
As more fully developed in treatment of the complaint allega-
tion following this one, I am not convinced a violation has been
proven. I recommend dismissal of this portion of the com-
plaint.
Paragraph 9(c) concerns the choice which Mattos termed an
ultimatum to him. On the surface that is what it looks to be.
Furthermore, it can well be said Respondent should have
awaited a ratification vote, that which was then known to be
only a scant few days away.
However this would improperly analyze the situation as it
really stood. Respondent had an ample background in the
summer contract rejection, two subsequent bargaining sessions,
and sufficient passage of idle time to legitimately believe an
impasse in the negotiations had occurred. In this sense Re-
spondent was on firm ground in pressing Mattos to continue as
the supervisory figure it wanted him to be, or to return to the
bargaining unit where an applicable hourly pay rate was less
then he had been making as the designated shop foreman. The
fact that this position might not have been a statutory supervi-
sor is not controlling; instead it is more pertinent that Respon-
dent should be permitted to rely on the negotiated language
(embodied in the impasse) that removed Mattos’ classification
from the bargaining unit. If ratification were to occur only days
after the “ultimatum” to Mattos, this would simply solidify
Respondent’s desire to draw all shop foremen into the ambit of
management. It should not be ignored that this was actually
part of a larger business objective insofar as service operations
were concerned, with increasingly greater emphasis on needed
skill and productivity from the rank-and-file technicians them-
selves This, again looking to the potential labor contract, is
seen in the contractual power to fast promote an apprentice to
be journeyman specialist, the annual wage increase expressly
established for this higher skill, and the employer’s entitlement
to “provide above-scale compensation” at its discretion. For
these reasons, I recommend a dismissal of the allegation set
forth in paragraph 9(c).
3. Mattos’ termination
The issue here is whether Mattos was driven to blurt out an
announcement of quitting and then angrily leave employer
BOARDWALK MOTORS 793
premises, because intolerable mental pressures generated
mostly by Haverkamp had reached a crescendo.
The Board’s basic case authority for constructive discharge
cases, as this issue plainly constitutes, is Crystal Princeton
Refining Co., 222 NLRB 1068 (1976). That case defined two
elements which must be proven to establish a violation resting
on Section 8(a)(3) of the Act. These are:

First, the burdens imposed on the employee must cause, and
be intended to cause, a change in his working conditions so
difficult or unpleasant as to force him to resign. Second, it
must be shown that those burdens were imposed because of
the employee’s union activities.

Id. at 1069. I do not find from the evidence that Mattos was
faced with such requisite degree of provocation that his impul-
sive quitting, understandable in one sense as it might have
been, was an action attributable to Respondent. Further, while I
reject the implications that Barbe did not promptly and effec-
tively seek his reemployment, this was a matter neither pleaded
nor fairly litigated.
The essential fallacy in the General Counsel’s case is that
Mattos held to an untenable view of his position with Respon-
dent. He equated his steward capacity with a feature of em-
ployment, rather than an adjunct based on his voluntary service
to the bargaining unit. This is best shown in the testimony of
Barbe, who attributes a postquit statement to Mattos that he
didn’t want “to change jobs.” What Respondent was demand-
ing, and it had reached the point on November 16 that it was
entitled to have the choice made, was vacating a shop foreman
role which had become operationally a part of management or
reverting to a technician specialist with no effect on Mattos’
service as a steward. The urgency of the moment was, after all,
not about any actual decertification or continuation of recogni-
tion extended to the Union, but instead only a question of con-
tract renewal. While Respondent’s several reminders that a
choice need be made, including reference to lower pay again in
keeping with contract terms either as implemented or ratified,
may have been disturbing, they do not in my view constitute
the causation of why Mattos quit. He had, after all, just been
highly praised in front of the assembled shop only hours before
the impetuous action took place.
The principal issue in this case of constructive discharge
turns on whether circumstances had become so unbearable that
Mattos’ abrupt cessation of his employment was essentially an
involuntary act. As discussed above the untoward questioning
of Mattos by Respondent’s agents carried worrisome concerns
for a rank-and-file employee who was not inclined to submit to
such pressures. Mattos had an evident pride in, and desire for
continuation in, his occupation as shop foreman. The mixed
loyalties of being a mentor-type technician, while simultane-
ously serving his Union as shop steward were especially con-
flicting to his personal nature. This was compounded by his
employer’s desire to eliminate the prized status of being shop
foreman in its latest collective-bargaining proposals relative to
scope of the bargaining unit.
Perhaps Mattos was overly sensitive or rigid in his desire to
continue arrangements of the past. However it is a matter of
balancing whether he should pay a heavy penalty for not adapt-
ing to the employer’s hard-line implementation of a new em-
ployment terms and conditions configuration affecting him,
against heavy-handedness of the employer’s conduct. I believe
that realities of the workplace and illustrative views of the
Board found in constructive discharge cases favors Respondent
in this balancing process.
In White-Evans Service Co., 285 NLRB 81, 82 (1987), the
Board applied earlier doctrine, relevant to the issue here, to the
effect that resigning in the face of distasteful prospects relating
to employment may be premature and, therefore, not a con-
structive discharge. See also Gerig’s Dump Trucking, 320
NLRB 1017, 1023–1024 (1996); Aero Industries, 314 NLRB
741, 742-743 (1994); and Groves Truck & Trailer, 281 NLRB
above at 1195–1196. On the bases above, I recommend that the
8(a)(3) allegation of the case be dismissed.
The General Counsel posits an alternative theory in support
of the contention that Mattos was victim of an unlawfully con-
trived termination. This, based on Columbia Engineers Inter-
national, 249 NLRB 1023 (1980); and J. J. Security, Inc., 252
NLRB 1290 (1980), is to the effect that an employer cannot
lawfully require the choice by a person between continuing in
employment or foregoing Section 7 rights. I find cases cited in
this regard to be distinguishable, and the General Counsel’s
alternative theory not of appropriate application here. The
context of this case is a running bargaining dispute, with insti-
tutional interests as between the chief adversaries. This differs
radically from the situation in Columbia Engineers and J. J.
Security, where hiring hall dynamics and the residual of an
economic strike, respectively, were involved.
CONCLUSIONS OF LAW
1. By its unlawful conduct described below, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
2. By soliciting its employees to withdraw their support from
the Union, Respondent violated Section 8(a)(1) of the Act.
3. By interrogating its employees regarding why they sup-
ported a union, Respondent violated Section 8(a)(1) of the Act.
4. By threatening to terminate its employees if a contract
ratification vote was delayed, Respondent violated Section
8(a)(1) of the Act.
5. Respondent has not otherwise violated the Act as alleged
in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, a recommended rem-
edy of conventional notice posting shall be made, to inform
employees of Respondent’s obligation to avoid intrusion on
their rights under the Act.
Disposition
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Boardwalk Motors, Redwood City, Cali-
fornia, its officers, agents, successors, and assigns, shall

2 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794
1. Cease and desist from
(a) Soliciting its employees to withdraw their support from
the Union.
(b) Interrogating its employees regarding why they supported
a union.
(c) Threatening to terminate its employees if a contract rati-
fication vote was delayed.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Redwood City, California, copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms provided
by the Regional Director for Region 20, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.

3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that 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.

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 solicit our employees to withdraw support
from International Association of Machinists and Aerospace
Workers, Peninsula Lodge No. 1414, AFL–CIO.
WE WILL NOT interrogate our employees regarding why
they have supported a union.
WE WILL NOT threaten our employees with termination if,
at a future time, a contract ratification vote should be delayed.
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.

BOARDWALK MOTORS