Boch Motors

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 670 (N.L.R.B. 1969)

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boch Dodge, Inc., Boch Rambler , Inc., and National
Discount Corp., All d/b/a Boch Motors and
Metropolitan Boston Automobile Salesmen Local
Union No. 122 affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.'
Case I-CA-6375
June 30, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND ZAGORIA
On February 10, 1969, Trial Examiner Eugene E.
Dixon issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint. Thereafter, the Charging Party filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that they
are free from prejudicial error. They are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Boch Dodge,
Inc., Boch Rambler, Inc., and National Discount
Corp., all d/b/a Boch Motors, Norwood,
Massachusetts, its officers, agents, successors, and
The name of the Charging Party appears as amended at the hearing
'Unlike our dissenting colleague, we agree with the Trial Examiner and
find that the Respondent did not violate Sec 8(a)(5)
The Trial Examiner found that the Respondent was confronted with
confusing simultaneous claims which , together , did not clearly delineate the
unit Further, the Union' s insistence at the July 3 prehearing conference on
a unit composed only of used -car salesmen is not consistent with its letter
of June 20 or its RC petition and highlights the inherent ambiguity in its
earlier claims.
Consequently, we find that the Union did not make consistent claims
and that the Respondent could have been justifiably confused as to the unit
requested
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
MEMBER BROWN, dissenting in part:
Unlike my colleagues, I would reverse the Trial
Examiner insofar as he found that the Respondent
did not violate Section 8(a)(5) of the Act. The Trial
Examiner concluded that because of inconsistencies
between the unit claimed in the Union's letter of
June 20, 1968, and that claimed in its RC petition
filed June 21, no effective demand had been made
for the unit alleged as appropriate in the complaint.
I would find merit in the Charging Party's
contention that the units claimed in both the letter
and the petition are readily understandable as
comprehending the unit alleged in the complaint.
As more fully set forth in the Trial Examiner's
Decision, the Respondent operates two locations in
Norwood, Massachusetts, where it is engaged in the
sale of new and used cars, trucks, and motorcycles
and leasing and wholesaling cars. At one location it
employs new-car, truck and lease salesmen, at the
other, used-car, motorcycle, and wholesale salesmen.
The Union's letter of June 20, 1968, was addressed
to Mr. Ernest Boch, Boch Rambler, at one of the
locations and claimed that the Union represented a
majority of "your" salesmen, without further
describing the unit. The RC petition of June 21
listed Boch Motors, Incorporated as the Employer
and Ernest Boch as the Employer representative,
gave the address of the other location, and claimed
a unit consisting of "all salesmen employed by the
Employer at its location in Norwood,
Massachusetts." On June 24, 1968, the Respondent
filed an RM petition in which it declared that it had
received a claim from the Union to represent a unit
of "all new and used car salesmen employed by the
Employer at its 859 and 1201 Route One, Norwood,
Massachusetts, locations." The complaint alleges the
appropriate unit to be "all motor vehicle salesmen,
including new and used car salesmen ... ," with the
usual exclusions.
The Trial Examiner gave controlling significance
to the fact that different categories of salesmen were
employed at each location and found that the
Respondent was faced with confusing simultaneous
claims because of the difference in addresses. That
the Respondent was not under any misapprehension
as to the locations involved is demonstrated by the
RM petition it filed. The Respondent may not now
persuasively contend that it did not receive a claim
for the unit which in its petition it declared had been
claimed. And, as argued by the Union, there is no
significant difference in the meaning of the words
"all salesmen" and "all motor vehicle salesmen."
In view of the above, I would find that the
Respondent was presented with a sufficient demand
for recognition in the appropriate unit and that the
Respondent's misconduct, which violated Section
8(a)(1) and (3), reveals the Respondent's rejection of
the concept of collective bargaining and was of such
nature as to tend to undermine the Union's majority
177 NLRB No. 93
BOCH DODGE , INC. 671
status and prevent the holding of a free election.'
Therefore, I would find that the Respondent
violated' Section 8(a)(5) and would order that it
bargain,with the Union upon demand.
'N L R E v. Gissel Packing Company, Inc., et al , 395 U.S. 575
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceeding,
brought under Section 10(b) of the National Labor
Relations Act, as amended (61 Stat. 136), herein called
the Act, was heard at Boston, Massachusetts on October
7-9, 1968. The complaint dated August 15, 1968, based
upon charges filed and served on June 24 and August 6,
1968, was issued by the Regional Director for Region 1
(Boston,; Massachusetts) on behalf of the General Counsel
of the -National Labor Relations Board (herein the
General Counsel and the Board).
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices by various
specified conduct , including its failure to bargain in good
faith with Metropolitan Boston Automobile Salesmen
Local Union No. 122 affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America' (herein the Union), as the
bargaining agent of the majority of its employees in an
appropriate unit and by discriminatorily discharging
employees and otherwise discriminating against them, thus
violating Section 8(a)(1), (3), (4), and (5) of the Act. In its
duly filed answer Respondent denied the commission of
any unfair labor practices.
Upon the entire record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENTS BUSINESS
At all times material Respondent has maintained its
principal office and places of business in the city of
Norwood, county of Norfolk, and Commonwealth of
Massachusetts ' where it has been engaged in the sale,
distribution, repair, and reconditioning of motor vehicles.
In the course and conduct of its business Respondent
causes and has caused large quantities of motor vehicle
and related products to be purchased and transported in
interstate commerce from and through various States of
the United States other than the Commonwealth of
Massachusetts, and causes and has continuously caused
substantial quantities of motor vehicles to be sold and
transported from said Norwood premises in interstate
commerce to States of the United States other than the
Commonwealth of Massachusetts . Respondent annually
receives from the sale and servicing of said motor vehicles
gross revenue in excess of $500,000. In addition,
Respondent receives motor vehicles having an annual
value in excess of $50,000 at its Norwood premises
directly from points outside the Commonwealth of
Massachusetts. At all times material herein Respondent
has been engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Metropolitan Boston Automobile Salesmen Local
Union No. 122 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America at all times material has been an labor
organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
The Overall Picture and Issues
In the spring of 1968 discussions took place between
Respondent's used car salesmen about improving their
remuneration . With this in mind several attempts were
made by them to meet with Respondent's president Ernest
Boch. Failing in this objective the employees began
talking about getting a union to represent them. To this
end, on June 17 used car salesmen George Brown,
Salvatore Bruno , and Thomas Marshall attended a
luncheon meeting with John McDonald and Manny
Cuchiania, two salesmen then employed by Cadillac-Olds,
an automobile dealer whose employees were currently
represented by the charging union . In addition to their
employment by Cadillac-Olds McDonald and Cuchiania
were trustees and officers of the Union. Marshall had
formerly been employed by Cadillac-Olds and had been
active in the Union - having been instrumental in bringing
it in.
At this meeting the three employees signed union
authorization cards. Brown also took a supply of blank
cards with him when he left. Later that day at the
used-car building he solicited and obtained the signatures
of four of the remaining five used-car salesmen.'
Thereupon he went to the new-car location and got the
signatures of three out of the nine new-car salesmen then
employed.
During the ensuing days numerous discussions
concerning the Union took place between the used-car
salesmen during working hours both on the showroom
floor and in their various offices. On several occasions
management officials broke up these discussions. On one
of these occasions, according to the undenied and credited
testimony of Marshall, Supervisor Nick Perella "banged
on the glass" at a group in Bruno 's office and told them
that if they "wanted to have a meeting" to have it on
their own time.
On Saturday, June 15, Marshall and Used-Car
Manager Richard Boch were the last ones left at the end
of the day, according to Marshall's undenied and credited
testimony, when Marshall addressed Boch and asked him
if he knew that the men were talking about having a
union . Marshall indicated that the men had approached
him on the matter and suggested to Boch that the latter
"ought to sit down and talk with them." Boch "more or
less laughed it off." In his testimony, Boch admitted that
Marshall had stopped him as he was leaving on that day
At the hearing the General Counsel 's motion was granted to change the
name of the union from "Teamsters Local Union No. 122 a/w
International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America " to "Metropolitan Boston Automobile Salesmen
Local Union No 122 affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America "
'It operates at two locations in Norwood situated about three fourths of
a mile apart New car sales, leasing and truck sales are handled at its 1201
Providence Highway location while used car and motorcycle sales and
wholesale operations are handled at its 859 Providence Highway site
'Marshall obtained the signature of Norman Kelsey, the only other used
car salesman, on the following day at the latter's home.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and informed him that some of the salesmen had asked
Marshall how to go about starting a union . Boch just said
"Oh" and walked out the door explaining on the stand
that he had already "heard this." According to Boch's
further testimony he did not take this information
seriously and thought nothing of it.
On Thursday June 20, according to the undenied and
credited testimony of used -car salesman Joseph Pimental,
he was called into the conference room by Richard Boch.
There they had a discussion involving Pimental's
production during which Boch asked him "Do you know
anything about a union?" Pimental said that he did not.
The following day, Friday, June 21, five of Respondent's
salesmen were discharged4 - four from the used-car
department and one from the new -car department, all
card signers.
In the meantime (also on June 21) the Union had filed
an RC petition (1-RC-10128) describing the unit as "all
salesmen employed by the employer in its location in
Norwood, Massachusetts," giving the employer's name as
Boch Motors Incorporated, the employer' s address as 859
Providence Highway, Norwood , Massachusetts. The
Union had also mailed a letter to Respondent on June 211
as follows:
June 20, 1968
Mr. Ernest Boch
Boch Rambler
1201 Providence Hghwy.
Norwood, Mass.
Dear Mr. Boch:
Teamsters Local Union No. 122 represents the
majority of your salesmen and we are willing to prove
it in any reasonable manner.
We are requesting a meeting to sit down at the
bargaining table with you as soon as possible.
Sincerely yours,
Ralph J. Gilman
RALPH J. GILMAN
Secretary-Treasurer
Business Agent
On Saturday , June 22, Boch was at the Boston Harbor
Marina where he keeps a boat . While there he learned of
the Union 's letter by means of a telephone call from his
office . He indicated that he would be in the following
morning to look at it. At the office the next day, Sunday,
June 23 , he called in his attorney and turned the matter
over to him for handling.
Also on Sunday, June 23, used-car salesman Brown
talked to several of the employees' and was informed by
them that they would support a strike in protest of the
discharges - Lindsey and Krajewski with reluctance
however.
On Monday, June 24, Respondent filed an RM petition
(1-RM-700) calling for a unit composed of "all new and
used car salesmen employed by the employer at its 859
and 1201 Route one Norwood, Massachusetts locations"
with the usual exclusions . Also on Monday, June 24,
Business Agent Gilman called on Boch and informed him
that he represented "the salesmen" and that they were
going out on strike. Boch replied that he had received the
Union's letter, had turned everything over to his lawyer
'Raymond Casella , Anthony Corsi , Thomas Marshall , Joseph Pimental,
and William Scanlon.
'The letter was dated June 20 but postmarked June 21
'He named Bruno , Marshall, Kelsey, Lindsey , Pimental , Scanlon,
Grenga , and Krajewski.
and suggested that Gilman see the lawyer . Gilman then
proceeded to establish picket lines at both of Respondent's
Norwood locations . However , when the picketing
commenced four of the salesmen, Grenga , Krajewski,
Lindsey and Kelsey had changed their minds and refused
to participate . According to Brown's undenied and
credited testimony he called Krajewski on the telephone
and asked why he was not out on strike . Krajewski said
that he along with Grenga had sat down with management
and had a long talk and that he had "come to his senses."
Late in the day on Tuesday, June 25, the strike was
called off as a result of an agreement by the Company to
take the discharged employees back (which it did) and,
according to Gilman ' s testimony, to agree "to any kind of
an election" that the Union wanted . There was no
explanation by Gilman as to what he meant by the phrase
"any kind of an election that the union wanted." The
General Counsel in a colloquy about it referred to
Gilman's testimony as having "indicated that the
Company was willing to go to an election on any unit"
the Union presumably wanted. According to Boch's
testimony the election was to involve a unit of at least the
new and used car salesmen.
On July 3 a prehearing conference was held at the
Regional Office for the purpose of setting up an election
in connection with the RC and RM petitions. At this
conference the Union insisted on a unit composed only of
the used car salesmen . As a result no election was
arranged.
On August 15, 1968, the complaint was issued alleging
a refusal to bargain by Respondent with the Union as the
collective-bargaining agent for an appropriate unit
described as including "all motor vehicle salesmen,
including new and used car salesmen , employed by
Respondent at its Norwood , Massachusetts premises"
with the usual exclusions.
The main issues in this case are (1) whether or not the
above discharges were discriminatory within the meaning
of Section 8(a)(3) of the Act (along with some other
alleged discrimination involving treatment of the salesmen
after the strike and some independent 8(a)(1) allegations)
and (2) whether or not Respondent ' s failure to recognize
the Union violated Section 8(a)(5) of the Act.
The Refusal to Bargain
Among the many defenses raised by Respondent to the
refusal to bargain allegation is the contention that no
effective demand was made by the Union for recognition
in the unit alleged to be appropriate in the complaint; that
lacking this essential element of proof, Respondent was
not obligated to bargain and thus did not violate Section
8(a)(5) of the Act. I agree with this contention. The law is
clear that an employer is not required to bargain on the
basis of a union ' s request for recognition where the union
fails to make clear for what unit it is requesting
recognition or where the bargaining unit requested by the
union is not an appropriate unit.
Here the Respondent was faced with two confusing
simultaneous claims , one reflected by the Union' s letter
(which would appear to apply only to the new car, truck
and possibly lease salesmen) and the other by the RC
petition (which would seem to apply to the used car
salesmen and possibly the motorcycle and wholesale
salesmen). Whatever Respondent may have surmised
about this situation , it can hardly be said that the prompt
filing of the RM petition seeking a unit of new- and
used-car salesmen was any indication that Respondent was
BOCH DODGE , INC. 673
not genuinely perplexed as to what unit the Union was
claiming to represent. Whatever the effect was at the July
3 Board conference of the Union' s insistence on a unit
composed only of used car salesmen or whether such a
unit was an appropriate one is unnecessary for me to
decide since the General Counsel' s allegation of refusal to
bargain goes not to such a unit but to a unit composed of
.,all motor vehicle salesmen , including new and used car
salesman . . . ." Nowhere in the record is there any
showing that a request was made by the Union for
recognition in such a unit. Accordingly I shall dismiss the
8(a)(5) allegation of the complaint.
Discrimination
A. The Discharges
Respondent's defenses regarding the discharges are that
(1) it had no knowledge of the union activity of the
employees prior to the time they were discharged and (2)
that the discharges were made solely for economic
reasons.
1. Knowledge of union activities
Richard Boch's admission that on June 15 Marshall
had informed him that the employees had been inquiring
how to go about starting a union should be sufficient in
the circumstances here' to counter Respondent's
contention that it had no knowledge of the union activity
at the time of the discharges. But even then this
knowledge was not news to Boch as appears from his
further testimony that he had already heard about it. I
reject his testimony that he did not take it seriously and
thought nothing of it as being patently incredible. In any
event if he did not take it seriously someone in authority
certainly did as reflected by Respondent's subsequent
actions,
2. The reasons for the discharges
(a) Called as a witness under Rule 43(b) of the Rules of
Civil Procedure Ernest Boch testified that there was "an
individual reason for everyone of" the discharges'
including "inadequate performance of some of the
salesmen ..." and the fact that "business was slow at the
time" but slow only in "the sale of used cars primarily
and new cars secondari(ly)." This letdown he attributed to
the assassination of Senator Robert Kennedy. A definite
decrease in sales occurred immediately after his death and
about a week later his managers informed him that if the
slowdown continued they "would have to make some
changes." Daily reports showed that the trend was
continuing but when he asked them what they were going
to do about it they would say, "Well, let's keep on waiting
and see what happens." Nevertheless the managers finally
came to him and "requested that they let some men go"
and gave him the names of those to go. He said, "Well, if
this is what you guys want to do, go ahead."
'he union discussions among the employees preceding the discharges
were a matter of note to supervision and apparently interpreted as such as
shown by Perella ' s comment on one occasion that if they "wanted to have
a meeting" to have it on their own time
'Elsewhere in his testimony Boch was unable to state what the individual
reasons for the discharges were except for Marshall about whom he said
they had checked with former dealers Marshall had worked for and had
received reports which were not "too good ." Whether these reports
included information that Marshall was generally considered in the
Testifying later at the call of Respondent Boch now
claimed that the slowdown in business was not the result
of a drop in sales but that the profit was lower.' Actually
for the period March through June the trend in used-car
sales was slightly up showing 108 sales in March, 113 in
April, 115 in May, and 117 in June. Moreover, the weekly
total in used car sales had increased from 18 the week
ending June 15 (the week following the assassination)'" to
26 for the week ending June 22 (the week in which the
discharges took place) further refuting Respondent's claim
that a continuing drop in sales was the reason for the
discharges.
(b) On Monday June 24 at a time when the five
used-car salesmen had been let go because they were not
needed Respondent nevertheless found it necessary to
bring into the used-car department two salesmen from a
different shift of the new-car department. In addition to
this it also appears that Respondent hired a used car
salesman on June 24. Richard Boch explained in his
testimony that the new man had applied some weeks
before but that he was not needed until the employees
went out on strike. Actually in addition to the dischargees
only one employee went out on strike. When asked, after
testifying that business had been steadily falling off since
April, if there was any reason why Respondent waited so
long to let some salesmen go Richard Boch replied, "yuh,
because to get help, to replace them is difficult, you
know."
(c) According to the undenied and credited testimony of
Brown during the several years he had worked for
Respondent there had never been a layoff or discharge for
a lack of work. Not even in 1966 when the imposition of a
state sales tax of 3 percent caused a decline in business
which lasted several months and which was much worse
than the brief period of slackness in June of 1968.
(d) Marshall testified that Richard Boch had told him
when he was discharged that business was slow and for
that reason he and four others as the last hired" were
being terminated. Marshall pointed to the bulletin board
where the sales records of the men were posted and where
he was second or third at the time and said, "Mr. Boch
you don't let good men go when business is slow. You
keep good men."'= Boch said, "Well, those are my orders.
That's what I have to do."
(e) Marshall testified credibly that in a conversation
with Ernest Boch on July 22 or 23 when he had asked
Boch why he had been discharged Boch told him that the
discharges "he figured ... would end the union before it
got started." Boch although admitting that he had a
conversation with Marshall on this occasion did not
contradict Marshall's testimony.
automobile industry to be a union organizer was not indicated by Boch in
his testimony . However, according to the undemed and credited testimony
of Marshall , in a lengthy conversation that he had had with Boch on July
15, Boch had told him that it was "general knowledge in the automobile
industry" that Marshall was a union organizer.
'Although he testified that he had records to prove this no such evidence
was offered to corroborate this testimony.
'There is no question that the second week in June (the week following
the assassination) was the lowest week for used-car sales for the entire
period of April through June.
"This was not the case with Casella
"In the less than 2 months that Marshall had worked for Respondent he
had established himself as a good salesman , as admitted by both Richard
and Ernest Boch According to Marshall ' s credited testimony the first
month he was there he received a bonus for exceeding the quota he had
been given and at the time he was discharged he was in second or third
place
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing and considering the timing of
the terminations , their abruptness and lack of prior notice,
that they occurred just before a busy day - Saturday, and
that in the last analysis they would do nothing to improve
Respondent ' s profit position since they involved only
commission payments rather than wages , I am convinced
and find that the discharges were directly tied in with the
union activity of the employees and were for the purpose
of discouraging the continuation of such activity as
admitted by Boch in his remarks to Marshall.
The Other Discriminatory Conduct
Substantial evidence was adduced by the General
Counsel that on June 26 after the men had been reinstated
and the picketing had ended Respondent announced and
began enforcing rules prohibiting conduct previously
permitted by the salesmen as follows : 1. They were no
longer allowed to use the restroom off of the main
showroom . 2. They were no longer allowed to use the
conference room for rest periods or for eating their lunch.
3. They were no longer allowed to go to the new car
building or take customers there to show them recently
traded cars . 4. They were no longer allowed inside the
cashier' s office when turning in deposits but now had to
pass them through a window . 5. If late to work they were
now required to take the day off where formerly they
would just be talked to or fined $ 1 which went into a sales
manager' s fund . 6. In place of demonstrators and late
model cars they were now required to drive older cars.
With the possible exception of the restriction imposed
on the cars the salesmen would now be permitted to drive
Respondent offered no valid explanation at the hearing or
to the salesmen at the time for the abrupt change in its
policies other than that it was necessary and good business
practice . With respect to the restriction on the choice of
cars the salesmen could drive Respondent did offer some
evidence that might tend to show that this was the result
of a new advertising program pertaining to new tires on
all used cars offered for sale . Even here , however,
Respondent ' s failure to bring in any documentary proof as
to exactly when this program started (such as newspaper
ads showing the date of publication ) detracts from the
generalizations it offered in defense . In any event a
remark by Richard Boch to Brown at the time that the
Union called the men out on strike would seem to indicate
that the restrictions on the car use were imposed in
retaliation for the union activity of the employees - i.e., the
strike . Thus, according to Brown ' s undenied and credited
testimony, when Richard telephoned to inform Ernest
Boch that the men were going out on strike, he turned to
Brown and said , "Are you happy now, George? . . . Wait
til you see what you drive home tonight , you guys will pay
for this."
On the basis of the foregoing and the circumstances
surrounding the discrimination demonstrated by
Respondent in connection with the discharges , I find that
the enumerated restrictions all were imposed in retaliation
for the employees' union activities and tended to and were
meant to discourage such activity in violation of Section
8(a)(3) of the Act. In this connection I reject the General
Counsel ' s contention that Marshall's suspension by
Supervisor Nick Perella on July 18 for being late was also
a violation of Section 8(a)(4) of the Act. Marshall had
been at the Board office on that day giving a statement
and told Perella that that was why he was late. Perella's
comment in effect was that he did not care what
Marshall ' s reason was for being late. It is apparent that
regardless what the reason was for Marshall ' s tardiness on
this occasion he would have been suspended under
Respondent ' s original discriminatory motive.
Independent Interference , Restraint, and Coercion
According to Brown ' s testimony , on the evening of July
3 he was brought from the used car location by Supervisor
Rossi to Boch 's office at the new car location . When he
got to the conference room on the second floor he found
most of the used car salesmen there plus Richard Boch.
Not present , however , was Tom Marshall . A discussion
was going on between Richard Boch and the salesmen
regarding the current "pay plan ." Brown sat down to
participate . Shortly he was informed that someone wanted
to see him and Rossi led him into Ernest Boch ' s office.
There he and Boch alone engaged in an hour long
discussion centering on the Union and Brown ' s reason for
supporting it. Boch asked Brown if he "was mad at him"
and said that "unions are good in their place" but that he
could not understand why Brown "was doing it to him."
He told Brown that "if the Union got in he 'd liquidate the
business . . . sell out ." Brown ' s explanation to Boch was
that he "was tired of the attitude towards an automobile
salesman ... not much higher than garbage ..."; that he
"wanted to be a little bit more respectable "; to be given a
salary and in effect a chance to improve his economic
stake in the business; that "when men give their lives to a
certain employer , the man should ... take care of them."
Boch admitted that perhaps he had "made a lot of
mistakes" and asked why Brown had not come to him to
talk about it. Brown replied that Boch had refused to see
him or the other salesmen . Admitting that he was wrong
about that Boch asked , "What if you did receive a salary
and you did receive these benefits? Would you change
your mind about the Union and vote against it?" Brown
answered, "Apparently the men out in the conference
room are down here for that reason . . . I suppose .. .
they all feel the same way I do . . . I probably would."
Brown then asked if "it would apply to everyone" and
Boch said , "No, he couldn't pay everyone . because
there weren't too many guys that had been with him any
given amount of time ." Then Boch agreed to a $50 a
week salary for salesmen of at least 2 years tenure. Brown
then asked about the other salesmen , "when it' s over, will
they be gone?" Boch in effect indicated that they would
not be discriminated against. Regarding Tom Marshall,
however, he said , "forget it . The Union is out , so is he."
He pointed out that "he felt that Tom Marshall was a
union organizer ." He also indicated that he wanted the
unfair labor practice charges dropped and the men to vote
against the Union.
At the end of the discussion the rest of the men were
brought into Boch ' s office where he made the same
proposition to them as he had made to Brown including
an increase in the sales commission from 3 1/2 to 4
percent . Boch stated that the plan would become effective
as soon as the "union business " was over indicating that
"if (the) ... Labor Board audited the books . . . they'd
know that we made some sort of deal." Boch also told the
employees at this time "that he did not want anyone
telling Tom Marshall about the meeting ... because Tom
Marshall would go to the Union and tell them ." As the
meeting broke up Boch asked Bruno if he "was ... happy
about the new proposal ," and said , "Sal, I saw that
house, and it looks pretty good.""
"Bruno was involved in a real estate transaction that will be discussed
BOCH DODGE , INC. 675
Brown also testified that before leaving that evening
Boch talked directly to him about Marshall and asked
Brown if he thought he could talk Marshall into quitting.
Brown promised to try and Boch said that he would have
his brother Richard check with Boch the following day
which Richard did . At that time Brown had not heard
from Marshall.
On July 16, according to Brown ' s further testimony,
Boch called him to the office and told him that he thought
that Bruno was going to file unfair labor practice charges
against him because of a misunderstanding regarding a
house deal involving Bruno . Boch asked Brown to find out
if this was true . The next day Boch called Brown at his
home and told him that he now had learned that Bruno
indeed was filing charges and asked Brown to stop him.
Boch said something about there being "two days left
within the 30-day range to agree upon an election" and
that the filing of charges at this time would "shatter it a
little bit." Boch added that "until this is over , you fellows
can't receive the salary...." At work later that day Rossi
asked Brown if he was going to do what Boch had asked
him to do pointing out "basically . . . what Ernie said
about the 30 days."
Brown testified further about a conversation he had
with Richard Boch on July 19 as follows:
He just said, "I can ' t understand ," he says, "Bruno
trying to blackmail Ernie into buying him a house."
And he says , "this will be all brought up into court."
"Well," I says , "Honestly, Richard , if I am subpenaed
into the court room, I am not going to perjure myself
for you or the union."
Richard then said, "you bet your life Bruno will be the
first one out of the door when this is over."
Brown ' s testimony as to what took place in the whole
group was corroborated by and augmented by Bruno.
According to Bruno ' s testimony Boch also agreed to lower
the penalty clause for selling under the sticker price from
25 to 20 percent of the salesmen ' s commission; but he
refused a request by the Rhode Island salesmen to have
gasoline furnished to them.
Neither Richard Boch nor Rossi in their testimony
alluded to what took place at the July 3 meeting with the
employees . In his testimony Ernest Boch denied in effect
taking the initiative for the meeting with the employees
that night; denied making an agreement with Brown and
denied threatening to liquidate the business. I credit
Brown's version . In doing so I do not agree with
Respondent' s contention that Brown "openly exhibited
hostility toward the Respondent throughout the
proceeding and was an easy witness for the General
Counsel to lead while building his case ." On the contrary
it was apparent to me at first that Brown was far from a
willing witness when interrogated by the General Counsel.
Apart from this initial reluctance by Brown as
demonstrated by a lack of recollection and vagueness on
his part, as his stint on the witness stand wore on he
became more definite in his testimony and at one point
when Respondent ' s counsel was trying to induce him to
deny that Boch had threatened to liquidate the business if
the Union came in, Brown answered, "No, Mr . Tobin. I
signed my name to that . That is . exactly what he
said ." By and large my impression of Brown was that he
was not happy about being a witness but that in anything
definitive that he said on the stand he was saying it
truthfully to the best of his ability and, as he told Richard
Boch, he had no intention to perjure himself in favor of
more fully below.
the Respondent or the Union.
Regardless whether the employees met with Boch on
the evening of July 3 at their request or not I find as
contended by the General Counsel that at this time
Respondent made promises of benefits and threats of
reprisals to them for the purpose of influencing the
employees in their support of and activities on behalf of
the Union thus interfering with , restraining and coercing
them in the exercise of rights guaranteed them in the Act
in violation of Section 8(a)(1) thereof . I also find that
Boch ' s inquiry of Brown in substance as to why he had
taken the action he did on behalf of the Union amounted
to illegal interrogation of Brown ." I further find that
Boch ' s request on July 3 to Brown to try to get Bruno to
resign and his request to Brown of July 16 to find out if
Bruno was filing unfair labor charges and his request to
Brown of July 17 to stop Bruno from filing unfair labor
charges all amounted to further violations of Section
8(a)(1) of the Act.
Some weeks before the Union came into the picture
Bruno had enlisted Boch ' s aid in attempting to obtain
mortgage money to purchase a house. The bank had
indicated that it was not handling mortgages but would
try to do something because of Boch ' s interest . According
to Bruno' s testimony he had heard nothing further until
the night of July 3 when Boch brought it up . At that time
he told Bruno that the house sounded like a real good
investment and that "the company should buy the house
for (him ) and ... hold the mortgage." Bruno "of course .
.. accepted ." In a discussion with Richard right after this
Bruno asked how Respondent intended to handle the
matter. Richard told him that Boch Reality would buy the
house and hold the mortgage. Also at this time Richard
asked Bruno if he wanted a 25 or 30 year mortgage.
Some days later , according to Bruno' s further
testimony , he again talked to Richard who told him that
before they went through with the deal "he wanted his
father, Andrew Boch , to look at the house to make sure
the investment was sound ." Thereafter on about July 12
Bruno arranged to show the house to Andrew Boch who
"was very pleased with it" and indicated that it was an
excellent buy. On July 16 Bruno called Richard and "told
him to get everything prepared" for settlement within the
next couple of days . That afternoon when he went to work
Richard told him "that everything was off." Bruno was
upset and asked for an explanation . The only thing
Richard said was, "I don ' t know ." Bruno then went to see
Ernest Boch . Boch told him that he would not buy a
house or obtain a mortgage for him or anyone else.
In his testimony Ernest Boch offered an explanation
which amounted to a claim that Bruno had misunderstood
what Boch had indicated he would do in this matter.
Whatever the truth here I find nothing in the evidence to
support the General Counsel ' s contention that Boch's
failure to aid Bruno in his deal amounted to a "reprisal
for Bruno's continued support of the Union in violation of
Section 8(a)(1)." So far as the record shows Boch had
already succeeded in winning Bruno and the other
employees to his side by his previous illegal promise to
them . There is no evidence of any action on Bruno's part
which would have called for any more coercive conduct
toward him by Respondent . Accordingly I reject the
General Counsel' s contention.
"Richard Boch ' s inquiry of Pimental on June 20 as to whether Pimental
knew anything about a union amounted to further illegal interrogation
chargeable to Respondent.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
One other contention of the General Counsel I reject.
According to Brown ' s testimony , on June 24 , the day of
the strike , Respondent contrary to past practice monitored
his telephone calls." Apparently as a result of this
monitoring Richard Boch accused Brown of calling
customers and telling them that they could not pick up
cars that they had purchased . In his testimony Brown
admitted that the accusation was true . Whatever
Respondent ' s conduct amounted to here I would not call
it surveillance of union activities as contended by the
General Counsel.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
3. By interfering with , restraining , and coercing its
employees in exercise of rights guaranteed in Section 7 of
the Act, Respondent has engaged in unfair labor practices
proscribed by Section 8(a)(1) of the Act.
4. By eliminating or diminishing employee privileges
and by discharging Raymond Casella , Anthony Corsi,
Thomas Marshall , Joseph Pimental , and William Scanlon
on June 21 , 1968, because of their union activities thereby
discouraging membership in the aforesaid labor
organization , Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a)(3) of the Act.
5. Respondent has not engaged in unfair labor practices
as alleged in the complaint within the meaning of Section
8(a)(4) and (5) of the Act.
The activities of Respondent set forth in section III,
above , occurring in connection with the operations of
Respondent described in section I, above , have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I will recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Although I have found that the June 21 discharges by
Respondent violated Section 8 (a)(3) of the Act there
appears to be no need for an affirmative order in this
connection since the matter of the discharge was settled by
the parties and the men were reinstated . As for the other
acts of discrimination found herein they were mostly in
the nature of harassment rather than economic and as
such will be more or less adequately remedied by a cease
and desist order . To the extent that Respondent' s conduct
may have had a possible adverse economic affect (such as
a conjectural loss of a sale when a salesman was
discriminatorily sent home for being late) it is too
speculative a situation upon which to attempt an
affirmative order.
In view of the nature of the unfair labor practices
committed , I am of the opinion that the commission of
similar unfair labor practices may be reasonably
anticipated . I shall therefore recommend that Respondent
be ordered to cease and desist from infringing in any
manner upon the rights guaranteed it by Section 7 of the
Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
Conclusions of Law
1. Boch Dodge , Inc., Boch Rambler , Inc., and National
Discount Corp., Inc., all d / b/a Boch Motors is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Metropolitan Boston Automobile Salesmen Local
Union No . 122 affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
"The Union had agreed that Brown instead of striking should stay on
the floor during the strike to insure against any loss of commissions to the
salesmen as a result of deliveries being made during the strike.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, upon the entire record in this case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended , it is hereby ordered that Respondent Boch
Dodge, Inc., Boch Rambler , Inc., and National Discount
Corp ., all d/b/a Boch Motors, its officers , agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of Metropolitan Boston Automobile Salesmen Local
Union No . 122 affiliated with International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America or of any other labor organization , by discharge
of employees or elimination or diminution of employee
privileges or benefits or in any other manner
discriminating against them in regard to their hire or
tenure of employment or any term or condition of
employment.
(b) Threatening its employees with economic reprisals if
they should vote for or chose the union to represent them
as their collective-bargaining agent.
(c) Illegally interrogating its employees concerning their
union membership or activities.
(d) Promising or granting benefits to its employees in
an effort to cause them to reject the Union as their
collective-bargaining representative.
(e) Soliciting employees to prevail on fellow employees
to cease their employment with Respondent for the
purpose of discouraging union activity among employees.
(f) Soliciting employees to prevail on fellow employees
not to file unfair labor practices against Respondent or
engage in other activity protected by the Act.
(g) In any other manner interfering with , restraining, or
coercing its employees in the exercise of the rights to
self-organization , to form organizations , to join or assist
Metropolitan Boston Automobile Salesmen Local Union
No. 122 affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America , or any other labor organization , to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from engaging in such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its used-car and new-car locations in
Norwood , Massachusetts , copies of the attached notice
marked "Appendix ."" Copies of said notice on forms
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
BOCH DODGE, INC. 677
provided by the Regional Director for Region 1, shall be
posted by it immediately upon receipt thereof, after being
duly sighed by Respondent, and be maintained for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 1, in
writing, within 20 days from receipt of this Decision, what
steps Respondent has taken to comply herewith."
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board ' s Order is enforced by a decree of the United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region t , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and
in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership in or activities
on behalf of Metropolitan Boston Automobile
Salesmen Local Union No. 122 affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , or any other
labor organization , by discharging employees,
eliminating or diminishing employees' benefits or
privileges , or in any other manner discriminating
against them in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT threaten our employees with economic
reprisals if they should vote for or chose a union to
re resent them as collective-bargaining agent.
WE WILL NOT illegally interrogate our employees
concerning their union membership or activities.
WE WILL NOT promise or grant benefits to our
employees in an effort to cause them to reject the union
as their collective -bargaining representative.
WE WILL NOT solicit our employees to prevail on
their fellow employees to cease their employment with
us for the purpose of discouraging union activities of
our employees.
WE WILL NOT solicit employees to prevail on fellow
employees not to file unfair labor practices against us
or to prevent them from engaging in any other activity
protected by the Act.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
rights to self-organization , to form labor organizations,
to join , or assist the above-named union , or any other
labor organization , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to
refrain from any or all such activities.
All of our employees are free to become or remain, or
refrain from becoming or remaining , members of
Metropolitan Boston Automobile Salesmen Local Union
No. 122 affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization.
BOCH DODGE , INC., BOCH
RAMBLER, INC.,
AND NATIONAL
DISCOUNT CORP., ALL
D/B/A BOCH MOTORS
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 20th Floor,
John F. Kennedy Federal Building, Cambridge & New
Sudbury Streets, Boston , Massachusetts 02203, Telephone
617-223-3353.