Daniels Cadillac

National Labor Relations Board - Board Decisions

Mar 7, 1984

270 N.L.R.B. 466 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniels Cadillac, Inc. and Amalgamated Local
Union 355. Case 4-CA-10817
7 March 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 20 April 1982 Administrative Law Judge
Hubert E. Lott issued the attached Decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs, and Respondent filed a
reply brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions3 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and hereby orders that the Respondent, Dan-
iels Cadillac, Inc., Allentown, Pennsylvania, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I No exceptions were filed to Ihe judge's findings that the Respondent
committed violations of Sec. 8(a)(l).
2 The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an admilistra-
live laws judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Productsi. 91 NLRH 544 (1950). eitld 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis fior re-
versing the findings
I The General Counsel has also excepted, inter alia, to the failure of
the judge to find that the Respondent's general manager. Falise, solicited
a grievance from employee Dennis Friend. im violation of Sec. 8(a)(l) of
the Act, as amended. We find it unllecessary tio pass oin this alleged violal-
lion of Sec. 8(a)(1), since it is essenti.ally cumulative il the conltext of the
other violations of Sec. 8(a)(1) t'ound Additionally, Are find it unneces-
sary to reply ont Riley-Beaird, Inc, 253 Nl RH h60 (198(), in agreeing
with the judge that General Manager Falise's conversations with Glenn
Koehler on 22 January and 6 February were violationrs oif Sec. 8(a)(l) of
the Act Member Zimmerman swould rely on Rillt-Beaird.
We find it unnecessary to determine the appropriate unit or the Union's
majority status or lack thereof because, in any case, se are of the view
that the Respondent's unfair labor practices are of insufficielnt magnitude
to warrant the issuance of a bargaining order
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. This
case was heard at Allentown, Pennsylvania, on April 30
and May 1 and 19, 1981. The charge in this case was
filed by Amalgamated Local Union 355 (the Union) on
January 24, 1980.' A complaint based on the charge and
alleging violations of Section 8(a)(l), (3), and (5) of the
National Labor Relations Act (the Act) by Daniels Cad-
illac, Inc. (the Respondent or Company) issued Septem-
ber 25. The complaint was amended at the hearing by
the General Counsel to make the following changes.
1. Paragraph 2(b) was deleted and the following lan-
guage was substituted.
"During the past year, in the course and conduct of its
operations described above in paragraph 2(a), Respond-
ent purchased and received goods valued in excess of
$50,000 directly from points located outside the Com-
monwealth of Pennsylvania and Respondent's gross reve-
nues from sales exceeded $50,000."
2. The language in paragraph 6(e) was deleted and the
following language was substituted.
"On or about January 22, 1980, solicited employees to
withdraw union authorization cards."
3. Paragraph 6(m) was added to the complaint and it
reads as follows.
"On or about February 2, 1980, threatened an employ-
ee that if the Union represented the employees, the Re-
spondent would discontinue the apprenticeship program
in which the employees participated."
4. Added paragraph 6(n) to the complaint which reads
as follows.
"On or about April 24, 1980, Respondent, through its
agents coercively interrogated and interviewed its em-
ployees at Respondent's Allentown facility." 2
5. Added paragraphs 7(a) and (b) to the complaint.
"(a) On or about January 23, 1980, Respondent, in a
departure from past practice, paid its employees for at-
tending a meeting. A purpose of the meeting was to
afford the Respondent an opportunity to advise employ-
ees of Respondent's opposition to unionization.
"(b) Respondent engaged in the conduct described in
sub-paragraph (a) above because its employees joined,
supported, or assisted the Union, and engaged in concert-
ed activities for the purpose of collective-bargaining or
other mutual aid or protection, and in order to discour-
age employees from engaging in such activities for the
purpose of collective bargaining or other mutual aid or
protection and to encourage employees to abandon their
support for the Union."
6. Paragraph 7 of the original complaint was made
paragraph 8 and all subsequent paragraphs up to and in-
cluding paragraph 13 were increased by one number.
7. The following language was added as paragraph 15.
"By the acts and conduct described above in para-
graph 7, Respondent has discriminated, and is discrimi-
nating, in regard to hire or tenure or terms or conditions
of employment of its employees thereby discouraging
membership in the labor organization, and Respondent
thereby has been engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the
Act."
8. Paragraph 14 of the original complaint was renum-
bered as paragraph 16.
All dates hereil ret'er to 1981) unless olhcr-r ise inldicaled.
Z 'he dale should he April 24, 1981
270 NLRB No. 86
466
DANIELS CADILLAC
The issues in this case are whether the Respondent en-
gaged in various acts of interference, restraint, and coer-
cion as alleged in the complaint to block the Union's or-
ganizational efforts. Also, at issue is whether a bargain-
ing order is warranted under the principles enunciated in
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
On the entire record including my observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by the General Counsel and the Respond-
ent, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Company, a Delaware corporation, is engaged in
the operation of an automobile dealership at its principal
place of business in Allentown, Pennsylvania, where it
annually purchases and receives goods valued in excess
of $50,000 from points located outside the Common-
wealth of Pennsylvania. The Respondent's annual gross
revenues from sales exceed $500,000. The Company
admits and I find that it is an employer engaging in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act. The Respondent further admits and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged 8(a)(1) and (3) Violations
1. January 16
a. Evidence
Donald Cole, body shop mechanic, testified that on
January 16 Willard Jewel asked Cole to report to the
Company's conference room which is located on the
second floor in the office area of the Respondent's facili-
ty. Cole went to the conference room where he met with
Jewel Gary Daniels and Richard Falise.3 According to
Cole, Jewel asked him if he knew anything about any
union activity, whether he had signed a union card and if
the Union had a majority. Cole stated yes to all of these
questions. Jewel then stated that he knew the union ac-
tivity had started in the body shop and that Cole was the
ringleader. Cole denied being the ringleader. Jewel then
asked Cole why he wanted a union since it was not
going to get him any more than what he already had
then. Cole then asked them if they would give the em-
ployees as much as they could get with the Union. The
response was "more." Falise then stated that if the Union
came in the employees would lose their personal benefits
such as washing their own cars, working on their own
cars, free title work, and the "company eating any come-
:' Richard Falise is the Respondent's general manager. controller and
assistant to the president. Willard Jewel is the Respondent's service and
parts manager, and Gary I)aniels is the Respondent's drice president All
three individuals are admitted by the Respondent to he supervisors %,ithin
the meaning of the Act.
backs." 4 Cole stated that the employees were not going
to ask for anything that they did not deserve. Jewel
asked Cole what he expected from management and
Cole did not respond. Falise asked Cole if he had ever
had any problems with management before. Cole stated
that he had been asking for more money for over a year
and had not gotten anywhere, that he was just getting
put off. Finally Falise stated, "You know, you're going
to break the old man's heart down in Florida, he really
cares for you." This statement refers to the president of
the Company, whose name is Jack or Daniel Daniels.
Donald Cole testified that, at a union meeting held
that evening at the George Washington Motor Lodge,
he told the union representatives and 17 employees what
had happened at the conference with Falise, Jewel, and
Daniels earlier that day.
Richard Falise testified that, on the date in question,
he did have a meeting with Donald Cole, with Gary
Daniels and Willard Jewel present, because he had heard
rumors from outside sources that there was union activi-
ty at the Respondent's place of business. Falise testified
that he did question Cole about the union activity in the
Respondent's facility. Falise testified that he asked
Donald Cole to the meeting because, in the past, he had
been able to discuss various problems with him and that
he thought Cole would be the logical person to discuss
union activity with. Falise further testified that he asked
Cole if there were any problems that he would like to
discuss with them like he had done in the past. Cole
stated that he had been talking about problems in the
past but that nobody seemed to listen. Falise then asked
Cole how far the union activity had progressed. Cole re-
sponded that he would be hearing about it very shortly.
Falise then told Cole about some of the things that Re-
spondent had done for its employees in the past, such as,
donating money to Cole's brother when his apartment
burned down. Falise went on to explain certain benefits
that the Company offered that would not be included in
a union contract such as allowing employees to wash
their cars, repair their own cars on company premises,
free title work and the company paying mechanics to
work on "come-backs." Falise then stated that if the
Company wanted to take away those benefits, they could
but they were not going to conduct themselves in that
manner, that the Company did not operate that way.
Falise then told Cole that he had a right to join any or-
ganization that he wanted to, but by the same token, the
Company had a right to defend themselves against that
sort of action.
Gary Daniels, Willard Jewel, and Falise denied ever
asking Cole whether he had signed a union card or
whether the Union had a majority. They further denied
that anyone stated that the union activity had started in
the body shop and that Cole was the ringleader. They
also denied saying that the employees would get more
without a union or that the employees would lose their
personal benefits if the Union came in.
4 The term "eating any come-backs" refers to the Company', paying
the the mechanic for work performed on a customer's automobile that
%sas returned because it Aras incorrectly repaired initially
467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Analysis and conclusions
The Respondent's witnesses admitted interrogating
Donald Cole regarding his union activities and the union
activities of other employees, and I so find. With respect
to the second allegation in paragraph 5, Donald Cole tes-
tified that Respondent's witnesses, mainly Richard Falise,
threatened to take personal benefits away from the em-
ployees if the Union came in. The mutually corrobora-
tive testimony of Jewel, Daniels, and Falise indicates that
Cole was told that the Respondent could take those ben-
efits away from the employees, but that they would not
because they did not operate in that manner. After ob-
serving the demeanor of the witnesses, I find the mutual-
ly corroborative testimony of the Respondent's witnesses
more credible than the uncorroborated statement of
Donald Cole. Therefore, having credited the Respond-
ent's witnesses I will dismiss the allegation in paragraph
5(b), but find a violation with respect to paragraph 5(a).
With respect to Donald Cole's allegation that he re-
peated the conversation between himself and Respond-
ent's witnesses to 17 employees and the union representa-
tives that evening at a union meeting, I find that this did
not occur for the following reasons. As the General
Counsel's witnesses were called to testify on other mat-
ters, they were asked about the Donald Cole conversa-
tion at the union meeting on January 16. Many of the
General Counsel's witnesses testified that they did not
recall any such statements being made by Donald Cole
and the balance of the witnesses testified that Cole did
not recount any conversation with the Respondent's wit-
nesses held earlier that day. The only witness that re-
membered Donald Cole saying anything about the con-
ference with the Respondent's witnesses earlier that day
was Richard Cole, Donald Cole's brother. Richard Cole
testified that he recalled his brother repeating a conver-
sation held earlier with the Respondent's witnesses,
before a few employees who were at the union meeting.
Richard Cole's recollection was very poor and in my
opinion unreliable. Therefore I find that other employees
were not aware of the conversation between Donald
Cole and the Respondent's witnesses which took place
on January 16 based on the testimony given by all the
witnesses relative to this incident.
2. January 17
a. Evidence
On January 17 union representatives Allan Settlow
and Howard Klienberg went to the Respondent's facility.
There, on the Cadillac service department floor they
gathered together the 17 card signers who formed a
semicircle around the union representatives and Falise,
Jewel, and Gary Daniels. Settlow asked for recognition
for the service department employees. Falise refused to
grant recognition and instead requested that an election
be held. Settlow stated that he represented the employ-
ees standing there and that, if Falise did not believe it, he
should ask them. The employees then stated that the
Union did represent them. Settlow wanted to have an
election immediately, conducted by a third party; how-
ever, Falise would not agree to that and the union repre-
sentatives left.
Paragraph 6(a) of the complaint alleges that Richard
Falise solicited grievances from an employee on January
17. The only employee who testified concerning this al-
legation was William Lewers, one of the service advisors
at the Respondent's dealership. At the hearing, Lewers
testified that he could not remember any conversation
with Falise on January 17. After reading his pretrial affi-
davit at the request of counsel for the General Counsel
for the purpose of refreshing his recollection, Lewers
still could not recall having any conversation with Falise
on that day. Counsel for the General Counsel then of-
fered Lewers' affidavit into evidence, as General Coun-
sel's Exhibit 27. Lewers' affidavit reads in pertinent part,
"I was at my work station at the desk, I think it was the
same day as the assembly of everyone in the shop by
Kleinberg, Falise asked me what my real beefs were.
Falise said, that I had just gotten a raise and he thought
I would be happy with it. I said I wasn't really. This was
about it, it wasn't a very long discussion."
b. Analysis and conclusions
Lewers did not testify to the allegation in paragraph
6(a) of the complaint, even after reading his pretrial affi-
davit. I will not credit the uncorroborated allegation in
his affidavit which was offered in lieu of what I consider
to be the more reliable face-to-face testimony given
under oath and subject to cross-examination. However,
even if I had credited the Lewers statement, I would not
find that Falise solicited a grievance from him since
there was no express or implied promise to correct a
grievance and ample evidence existed in the record that
Respondent was not deviating from past practice. Visa-
dor Co., 245 NLRB 508 (1979). Accordingly, I will dis-
miss the allegation contained in paragraph 6(a) of the
amended complaint.
3. January 22 and February 6
a. Evidence
In support of allegation 6(b) the General Counsel of-
fered the testimony of Dennis Friend, a mechanic in the
Cadillac shop. Friend could not recall any conversation
with Falise on January 22; however, after having re-
freshed his recollection by reading his pretrial affidavit,
Friend did recall a conversation with Falise. He testified
that Falise came by his work station and asked him if he
had any problems. Friend told Falise that he had a prob-
lem about getting a day off after giving up a vacation
day. Falise said he would check into it, that he did not
know anything about it. Friend further testified that
nothing was ever done about his problem. Friend further
testified that, in the past, Falise had asked him if he had
any problems; however, Friend never related any prob-
lems to him. Friend also testified that in the past Jewel
frequently asked him similar questions and on one occa-
sion he had related the vacation day problem to him.
In support of allegations 6(c), (d), (e), and (1) the Gen-
eral Counsel offered testimony of Glenn Koehler, an
automobile painter. Koehler testified that about January
468
DANIELS CADILLAC
22 a mechanic told him that Falise wanted to see him in
the parts department. When Koehler met with Falise in
the parts department Falise asked him if he had any
problems and Koehler responded by telling him that he
never received the 20-cent-per-hour increase that Willard
Jewel had promised him when he went to the paint shop.
Koehler also told him that the exhaust fan needed repair-
ing. According to Koehler, Falise said that he knew
nothing about the wage increase and would have to
check into it. However, if Koehler had money coming to
him, he would get it whether the Union came in or not.
Koehler further testified that Falise told him that he
knew the Union was coming the next day and wanted to
stop it. He further told Koehler that he had lunch with
the union representatives and they were only asking for
a 50-cent-per-hour increase. Falise said that he was will-
ing to give a $1 an hour raise as soon as the Union was
completely out and another $1 an hour the following
year. He was also willing to give personal holidays and
$250-a-week guarantee. Then Falise suggested that
Koehler withdraw his union authorization card that
night at the union meeting, which Koehler did. Koehler
testified that at the union meeting that evening seven
other employees withdrew their union cards after
Ronald Kehs asked the union representative a question.
Koehler testified that 2 or 3 weeks later, Falise asked
him to get his records together and he would see that he
got the increase if he had it coming to him. Koehler col-
lected his pay records and gave them to Falise. Subse-
quently, he received part of the increase that he had re-
quested.
Russell Anspach, Cadillac parts assistant, testified that
after he signed his union authorization card he was asked
by Falise to withdraw it and the Company would offer
him more money. Anspach said he would do it. He went
to the union meeting and withdrew his union card.
Dennis Friend testified that he withdrew his union
card because he did not believe the Union was telling the
truth about paying employees wages if they went on
strike or were discharged because of their union activi-
ties. He testified further that he was not solicited by
Falise to withdraw his card but after discussing the
matter with other people he changed his mind about
signing the authorization card.
William Lewers testified that he withdrew his union
card because he was upset with the way things were
handled.
Timothy Groller, Cadillac apprentice, testified that he
withdrew his union authorization card giving no reason
for his action.
Wilbur Kunkle, Cadillac mechanic, testified that he
withdrew his union card but he could not recollect when
he did it nor did he testify as to why he took that action.
Ronald Kehs, Cadillac mechanic, testified that, at the
time he signed his union card, the Union had told him
that it would pay his wages if he went on strike or if he
were discharged because of his union activities. Some-
time thereafter, he asked Howard Kleinberg to put this
guarantee in writing and give it to him at the next union
meeting. He testified that he felt that he needed this
guarantee because he had a family to support and that he
needed his wages to accomplish this end. At the next
union meeting, Kehs asked Kleinberg for the written
guarantee that he would be paid by the Union in case he
lost his job. Kleinberg did not have what Kehs request-
ed, but instead asked him to call a certain phone number.
Kehs stated that, when Kleinberg did not come forth
with the requested guarantee, he withdrew his union
card. Donald Cole, who apparently did not withdraw his
authorization card, testified that, at the union meeting on
January 22, Ronald Kehs asked Kleinberg a question.
Kehs was not satisfied with the answer and requested
that his card be returned to him. After that several other
employees asked that their cards be returned to them.
Richard Falise testified that he had heard that Glenn
Koehler was unhappy. He therefore met Koehler that
afternoon in the parts department and asked him if he
had a problem. Koehler responded that he was very
upset because he had been promised a 20-cent-an-hour
raise to be a painter and had only gotten the raise for a
short period of time. When Koehler was hired in 1975,
he was a combination metal man and painter. In 1979,
Willard Jewel asked him to help out in the paint shop
since they were short-handed. Since the other painters
were making more money, Koehler stated that he would
go to the paint shop if he got 20 cents per hour more.
Jewel agreed to the increase up to the time that Koehler
passed certain certification tests. In response to his com-
plaint, Falise told Koehler that he had no way of verify-
ing what he was saying since Jewel was in the hospital.
However, he told him to get all of his time together and
that he would receive his bonus or increase when Wil-
lard Jewel was released from the hospital and if he had
indeed been promised the money. Falise testified further
that Koehler mentioned something about a problem with
an exhaust fan. According to Falise, he asked Koehler if
he had any other problems and Koehler indicated that he
was having a problem with Frank Reichl because Reichl
was not assisting him in earning more money. Falise then
told Koehler that he had had a meeting with the Union
(Howard Kleinberg and Allan Settlow) and that they
had told him that the Union was only asking for a 50-
cent-per-hour increase per year for 3 years, but that the
Company was planning on a $1-an-hour increase for that
year. Falise further testified that the Company gave
annual increases in March of each year since 1976. Falise
denied telling Koehler that he wanted the Union
stopped, and that he mentioned personal holidays or a
$250 guarantee. He further denied mentioning any wage
increase beyond the current year. According to Falise, at
some point in the conversation, Koehler asked him what
he could do to help and Falise responded by saying that
he could help the dealership get out of this mess by
withdrawing his authorization card. Falise testified that
he knew better than to tell Koehler about the planned
raise and that he should not have done it. He further tes-
tified that he never asked Anspach to withdraw his
union authorization card.
b. Analysis and conclusion
The testimony of Dennis Friend in support of allega-
tion 6(b) was not rebutted by the Respondent. However,
I do not find that Falise's conduct constituted a solicita-
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of a grievance since there was neither an implied or
explicit promise to correct his problem. In my opinion,
there needs to be more than a mere statement that he
(Falise) would "check into it" when there were no other
unfair labor practices committed against this employee
who gave evidence that the Respondent solicited griev-
ances from him prior to the union activity. Further,
there was ample evidence provided in the record which
will be discussed more fully below that the Respondent
engaged in soliciting grievances as a normal practice
prior to any union activity. Therefore, I will dismiss alle-
gation 6(b).
After observing the demeanor of the witnesses and
taking into account the Respondent's admissions, I find
that Falise's conversation with Glenn Koehler on Janu-
ary 22 and February 6 constituted a solicitation of a
grievance accompanied by an explicit promise to remedy
the problem which was done in the context of commit-
ting other unfair labor practices and relating the inquiry
to his union activity. Riley-Beaird, Inc., 253 NLRB 660
(1980).
Falise promised a wage increase if the Union was de-
feated or withdrew and at the same time he solicited the
withdrawal of Koehler's union authorization card. Even
although the evidence indicates that the Respondent
granted wage increases in March of every year, the ines-
capable conclusion seems to be that Falise promised a
benefit in return for Koehler's "help." Thus, Respond-
ent's defense is nullified in that respect.
I credit Anapach's version of what occurred with re-
spect to his being solicited by Falise. Falise's demeanor
on the stand when he offered a rather tenuous denial
makes his testimony less believeable than that of An-
spach. Therefore, the evidence supports the conclusion
that Falise solicited the withdrawal of these employees'
union authorization cards in the context of offering them
benefits if they did so. This clearly is a violation of Sec-
tion 8(a)(1) of the Act. Aircraft Hydro-Forming, Inc., 221
NLRB 581 (1975); Tunica Mfg. Co., 236 NLRB 907
(1978).
Although I find that Anspach and Koehler were coer-
cively influenced to withdraw support for the Union, I
cannot find that the other employees were influenced to
withdraw their support for the same reason. The credible
evidence in this record indicates that the employees
withdrew their support on January 22. Therefore any
unfair labor practices that may be found subsequent to
that date would have no influence on their actions. The
General Counsel offered no probative evidence that any
employees were solicited by the Respondent. Moreover,
the credible evidence indicates that the employees were
influenced by the unrelated conversation between Kehs
and the union representative wherein the employees per-
ceived a lack of conviction on the part of the Union to
protect them. Accordingly, I will not infer any causal re-
lationship between the Respondent's action and that of
the employees who apparently on their own decided to
withdraw support for the Union.
Accordingly, I find that the Respondent violated Sec-
tion 8(a)(1) of the Act as alleged in paragraphs 6(c), (d),
(e), and (1) of the amended complaint.
4. January 23
a. Evidence
On January 23, a meeting was held in the lunchroom
for all employees. The Respondent called the meeting
because Willard Jewel, its service and parts manager,
had been hospitalized on January 20. The purpose of the
meeting was to let everyone know to whom they could
go with their problems while Jewel was in the hospital,
as well as what the Company's position was going to be
regarding the union organizational effort.
Falise opened the meeting at approximately 8 a.m. by
reviewing with employees the progress which the dealer-
ship had made since moving into the new facility. He
discussed various changes which he had made in shop
operations in the past which made the employees' job
easier. He also reviewed the benefits given in the past.
Falise then handed out an organizational chart in order
to advise employees to whom they could go to with
problems while Jewel was in the hospital. He also told
them that his door was always open and that he would
listen to anyone who had a complaint. Falise also stated
that no one would get fired as a result of his union ac-
tivities. He told them that the Company intended to fight
a clean, hard campaign and to abide by all the rules of
the NLRB. At the end, a question was raised by an em-
ployee concerning the possibility of a raise and Falise re-
sponded that he could not answer that question at that
time. When Falise opened the question-and-answer
period, he stated that he would be willing to answer any
questions that he could but that there would be many he
would not be allowed to answer.
The Respondent admits paying the employees for at-
tending this meeting but offered evidence that in the past
it had paid employees when legitimate circumstances
prevented them from working. Evidence was offered
that Timothy Groller, a fireman, was paid for time that
he spent away from the Respondent's facility engaged in
volunteer firefighting or rescue work. Falise testified that
employees are paid an average day's pay for time spent
on jury duty. Employees are also paid for military leave.
The Respondent also offered evidence that employees
were paid an average day's wage on at least 2 days in
the past when the dealership was closed because of
snow. The Respondent's witnesses testified that Richard
Cole was paid for time he took off when his apartment
burned down.
The General Counsel's witness Ronald Bresnak, new-
car get-ready man, testified that at this meeting Falise
apologized for the last raise not being very large and
stated that the Company planned to give employees an-
other raise in February, but because of the union activi-
ty, it was not allowed to give it because it might be con-
sidered a bribe.
Donald Cole corroborated Falise's testimony when
Falise stated at the meeting that he intended to conduct a
clean campaign and abide by the NLRB rules and that
no one would be fired, Cole further testified that, when
the question of a raise came up, Falise responded by
saying that it was just a rumor and that he could not
promise anything right then because it might be consid-
470
DANIELS CADILLAC
ered a bribe. He stated that Falise told the employees
that what they had done had awakened the Company
and there were going to be a lot of changes. The Com-
pany had been involved in completing their new building
and was not aware of the employees' problems. Cole tes-
tified that, prior to the advent of the union activity, serv-
ice meetings were opened to complaints. He further testi-
fied that shop meetings held during the workday would
still count toward the weekly guarantee.
Michael Dalton, another General Counsel witness, tes-
tified that Falise at this meeting stated that his eyes had
been opened to problems and that there would be a lot
of changes in the works. He confirmed that Falise stated
that the Company would wage a clean campaign and
that he could not discuss anything monetary at the time
because of the Union's presence.
Timothy Groller, another General Counsel witness,
testified that service meetings held prior to any union ac-
tivity ended with questions from the employees concern-
ing work-related problems and general gripes. At these
meetings, company officials indicated that they would
look into and resolve their problems.
Wilbur Kunkle, another General Counsel witness, tes-
tified that during the meeting on January 23 Falise asked
if anyone had any questions. He further stated that there
might be some questions he could not answer without
checking with his attorney. Kunkle could not recall any
statement made by Falise to the effect that a planned
raise would not be put into effect because of the Union.
Kunkle testified that service meetings generally ended
with Falise asking if the employees had any gripes or
problems. Depending on the problem, the Respondent
would try to solve it or do something about it. Kunkle
further testified that prior to the union activity Falise
stated that he would listen to any employee problems
and that his door was always open. According to
Kunkle, Falise would say this at service meetings or
when he was walking through the shop.
Ronald Kehs, a General Counsel witness, testified that
Falise had stated at the meeting that the Respondent
would be fair and operate within the law during the
union campaign. Kehs testified that Falise, when asked a
question about a raise, stated that he could not answer
the question. Kehs testified that when Falise opened the
meeting for questions he stated that he might not be able
to answer all of the questions without consulting with his
attorney. Kehs testified that at prior service meetings
Falise and Jewel would open the meeting for questions
and complaints and that these complaints were remedied
insofar as Kehs was concerned.
Richard Cole and Daniel Kuhns, General Counsel wit-
nesses, testified that they could not recall company meet-
ings being held during the day. They were never paid
for past service meetings because they occurred after
hours. Kuhns testified that employees raised grievances
at these service meetings and management would re-
spond to them.
Wayne Kerstetter testified that he recalled some body
shop meetings being held before the end of the workday
and that he never lost any money because he attended.
Glenn Koehler testified that Falise told the employees
at the January 23 meeting that he could not discuss a
wage increase at that time, and that he would not be able
to answer some questions without checking with his
lawyer.
Testimony from other employee witnesses indicates
that employee service meetings were almost always held
after work hours, and were therefore not paid for by the
Company.
b. Analysis and conclusions
The General Counsel alleges that the Respondent im-
pliedly promised improved benefits to its employees at
the January 23 meeting. I cannot agree that the General
Counsel has proved by a preponderance of the evidence
that the Respondent committed this violation. While
there is some evidence that Falise stated that "things
would get better," "there would be changes," or that
"they would do their best to correct problems"; the
General Counsel's witnesses also testified that Falise said
he could make no promises and that he could not discuss
a wage increase. In the face of the Respondent's denial
that it impliedly or explictly promised its employees any-
thing at this meeting, the conflicting testimony of the
General Counsel's witnesses leads me to accept the Re-
spondent's version of what was said. Therefore I will
dismiss the General Counsel's allegation 6(f) of the
amended complaint.
I am not convinced after hearing all the testimony in
this record that the General Counsel has carried its
burden of proof in establishing that the Respondent un-
lawfully solicited grievances at this meeting. Aside from
the Respondent's denials, and testimony that it merely
opened the meeting for questions, there is ample evi-
dence in the record that the Respondent had solicited
grievances in the past and acted on them. The General
Counsel's witnesses further stated that Falise informed
them that he could make no promises and when ques-
tioned about a most important matter (wage increases)
refused to comment; thus, indicating to the employees
that he could make no promises to correct anything.
Further, the testimony indicates that, aside from the
wage increase, no other grievance was raised by the em-
ployees. Thus, there was nothing for the Respondent to
act on (by way of a remedy) either explicitly or implied-
ly. Visador Co., supra; Uarco Inc., 216 NLRB 1 (1974).
Accordingly, I will dismiss allegation 6(g) of the amend-
ed complaint.
Allegation 6(h) needs very little comment because it is
clearly contradicted by the General Counsel's witnesses.
Ronald Bresnak testified in support of this allegation;
however, several of the General Counsel's witnesses not
only contradicted him, but also supported Falise's ver-
sion of what was said. Therefore, I discredit Bresnak and
dismiss allegation 6(h) of the amended complaint.
With respect to allegations 7(a) and (b) of the amended
complaint, the Respondent admits paying those employ-
ees who attended the meeting. The record evidence is
clear that in the past the Respondent did not pay for
service meetings because they were held after work
hours. However, employees who attended other meet-
ings held on worktime lost no wages. There was also
considerable evidence in the record that the Respondent
471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the past paid for employees' time lost during the
working hours which was due to circumstances beyond
their control. The Respondent argues that the General
Counsel failed to carry its burden of proof that the Re-
spondent failed to pay employees for attending meetings.
Sports Pal, Inc., 214 NLRB 917 (1974), and Golub Corp.,
159 NLRB 355 (1966). The General Counsel argues that
past meetings were not paid for and since attendance was
required as a condition for receiving payment anyone
who exercised his statutory right not to attend would not
have been paid for the length of the meeting. The Gen-
eral Counsel further argues that the payments were un-
lawful not only because they were a reward for partici-
pating in an activity combating a union, but also because
other employees who might have refused to participate
in it were denied payments. Keystone Pretzel Bakery, 242
NLRB 502 (1979).
I cannot agree with the General Counsel's argument
because it is not supported by a preponderance of the
evidence. The General Counsel proved that in the past
the Respondent conducted most of its meetings on non-
work time which were therefore not paid for. However,
there is evidence in the record that meetings and other
activities which took employees away from their work
were paid for by the Respondent. Furthermore, there is
no evidence in the record that the January 23 meeting
was mandatory. The General Counsel's two leading wit-
nesses testified that most of the service employees attend-
ed (D. Cole) and that some of the employees were there
(Bresnak). Coupled with this factor, the General Counsel
failed to prove that those employees who did not attend
the meeting were not paid. Moreover, judging from the
comments made at the meeting, it can hardly be said that
the purpose of the meeting was to provide a forum for
the Respondent's antiunion campaign.
Accordingly, I will dismiss allegations 7(a) and (b) of
the amended complaint.
5. January 28
a. Evidence
In support of allegation 6(i), the General Counsel pre-
sented one witness, Daniel Kuhns, Cadillac mechanic,
who testified that sometime around the end of January
or the first of February Falise approached him at his
work station in the shop and said that he was conducting
a survey of employees' gripes and wanted to know
whether Kuhns had any complaints. He told Falise that
the mechanics' weekly guarantee was not enough money
and that Paul Mackes who had worked 38 years for the
Respondent was not earning enough money. According
to Kuhns, Falise after hearing what he had to say merely
walked away. Kuhns testified that, in the past, employees
registered grievances at company-sponsored service
meetings. He stated that management would sometimes
respond to employee questions and grievances and at
other times they would not. He further testified that he
did not remember Falise ever asking if he had any prob-
lems in the past. He did, however, remember taking his
grievances to Willard Jewel in the past.
Richard Falise testified that he never told Kuhns that
he was conducting a survey nor did he use the word
"survey" to any employees. He further testified the only
time "survey" came up was when he was conducting
wage surveys among the other employers in the area to
find out whether the Respondent's wages were in line
with theirs. Falise further testified that periodically he
would stop by Kuhns' work station and ask him if he
had any problems and this occurred prior to any union
activities. At one point in time, Kuhns complained that
his wife was not on the Company's medical plan because
she was covered by another employer. Falise told Kuhns
that if he wished he would have the records corrected so
that she was covered by the Respondent's medical plan,
which he did. On another occasion prior to the union ac-
tivities, Kuhns complained that he was getting all the
"crappy" jobs and could therefore not make any money.
Falise agreed to mention the problem to Willard Jewel.
Falise finally testified that prior to the union activity he
was in the habit of talking to employees in the shop and
asking them if they had any problems; however, this ac-
tivity picked up somewhat after January 20, when Wil-
lard Jewel was hospitalized. Jewel's hospitalization re-
quired Falise to assume some of Jewel's duties.
Willard Jewel testified that prior to the union activity
he talked to employees every day in the shop and asked
them if they had any problems.
Several General Counsel witnesses (Friend, Groller,
Kunkle, and Kehs) testified variously that prior to the
union activity Falise and/or Jewel came to them regular-
ly in the shop and asked them if they had any problems
or complaints.
b. Analysis and conclusions
The evidence is clear that on January 28 Falise asked
Daniel Kuhns if he had any complaints. Kuhns stated his
complaints to Falise who walked away without respond-
ing. This is not denied by Falise. However, the alleged
statement having to do with "survey" was denied by
Falise and I credit Falise's denial because this statement
was elicited through leading questions posed by the Gen-
eral Counsel, and there was no other reference to a
"survey" in this record other than Kuhns' testimony.
Moreover, on this point, Falise appeared to be the more
credible witness.
After reviewing all the evidence on this issue, includ-
ing the testimony of the General Counsel's own wit-
nesses, it is apparent that the Respondent had a past
practice of soliciting grievances. Under these circum-
stances, where neither an implied nor expressed promise
was made to Kuhns to remedy his grievances, I cannot
find that the Respondent violated Section 8(a)(l) of the
Act. Visador Co., supra. Accordingly, I will dismiss alle-
gation 8(i) of the amended complaint.
6. February 2
a. Evidence
In support of allegations 6(j), (k), and (m), the General
Counsel produced Wayne Kerstetter, body shop appren-
tice, who testified that he was presently in the Respond-
ent's apprenticeship program which called for a 50-cent-
per-hour wage increase every 6 months. Kerstetter testi-
472
DANIELS CADILLAC
fled that on February 2 Falise came to his workplace and
asked him what his main gripe was. Kerstetter said
money. Falise told them that he had set up the appren-
ticeship program where apprentices were currently re-
ceiving a 50-cent-an-hour increase every 6 months. Falise
then told him that if the Union got in the Company
would only give an increase of 50 cents per hour per
year. Falise then asked him to figure out what he would
get with the Union and without the Union. Kerstetter re-
plied that he would receive $3-an-hour increase without
the Union and $1.50-an-hour increase with the Union.
According to Kerstetter, Falise asked him to think about
it. On re-direct examination, after having his recollection
refreshed by reading his pretrial affidavit, and in reply to
a leading question by the General Counsel, Kerstetter
testified that Falise also told him that if the Union came
in the Company would discontinue the apprenticeship
program. Prior to that, on cross-examination, Kerstetter
testified that Falise did not tell him that he would abolish
the apprenticeship program.
Richard Falise denied ever telling Kerstetter that he
intended to abolish the apprenticeship program. Howev-
er, he did admit having a conversation with Kerstetter
on approximately February 2. At that time Falise told
Kerstetter that he had had lunch with the union repre-
sentatives and that they told him they only wanted a 50-
cent-a-year increase because they were only trying to get
into the Allentown area. Falise then told Kerstetter that
under the apprenticeship program he was currently guar-
anteed a $1-a-year increase. Then he asked Kerstetter
what he would be earning in 3 years with the Union and
without a union. Kerstetter replied that he would be paid
$3 without a union and $1.50 an hour with a union.
Falise then told him that he should think about these
things independently before making up his mind.
b. Analysis and conclusions
After hearing both versions of the conversation and
observing the witnesses' demeanor while testifying, I
credit Falise's version of what was said with the excep-
tion of the question asked by Falise as to what Kerstet-
ter's main gripe was, which was not denied. Further-
more, I find that the Respondent had an established ap-
prenticeship program which called for a wage increase
of 50 cents per hour every 6 months. I also find, since it
was never rebutted by the Union, that Falise did meet
with union officials who offered to settle for a 50-cent-
per-hour wage increase per year over a 3-year period in
return for a contract to enable them to establish them-
selves in the Allentown area.
Based on these findings, I conclude that Falise did not
solicit a grievance from Kerstetter. This is based partially
on my findings and conclusions set forth above in the
prior numbered paragraphs and on my findings herein
that when Kerstetter told Falise that his main complaint
was money Falise in essence told him that he was earn-
ing enough money in the apprenticeship program; thus,
specifically, negating any inference of a promise of bene-
fit. Uarco Inc., supra. Accordingly, I will dismiss allega-
tion 6(j) of the complaint.
With respect to allegation 6(k), I can find no implied
promise of improved benefits when the Respondent
merely tells an employee what his existing benefits are,
and compares them with what the Union is offering. Ac-
cordingly, this allegation will also be dismissed.
Allegation 6(m) has no merit because I have discredit-
ed the testimony in support of it. Kerstetter's testimony
was conflicting, contradictory, uncorroborated, com-
pletely isolated in the context of this case, and elicited
through leading questions. Accordingly, I will dismiss al-
legation 6(m) of the amended complaint.
7. April 24, 1981
a. Evidence
In support of allegation 6(n) the General Counsel of-
fered two witnesses, Donald Cole and Glenn Koehler.
These witnesses were interviewed by the Respondent's
attorney on April 24, 1981, in preparation for the trial of
this case. The parties agree that prior to the interview
Respondent's attorney read the following language to
both witnesses:
The Company is attempting to secure information
necessary to its defense in a case before the Nation-
al Labor Relations Board. This interview has no
other purpose and I will only ask questions relevant
to the case. I will not ask you for and you should
not volunteer any information concerning your per-
sonal feelings or your activities with respect to the
Union. Your cooperation is voluntary and you are
free to answer or not answer my questions. You
will not be rewarded for your cooperation nor will
there be any adverse consequences if you exercise
your right to refuse to assist me. You may terminate
this interview at any time.
The meeting with the two employees took place in the
conference room near management offices on the second
floor of the Respondent's facility. Present were the Re-
spondent's attorney Richard Falise and Glenn Koehler.
After Koehler was interviewed, Donald Cole was called
in and interviewed. Koehler testified that he was asked
about the conversation he had with Falise in January.
Koehler told them that Falise had said that he would re-
ceive a $1-an-hour raise and $1 an hour the following
year plus guaranteed raise and personal holidays. Ques-
tioning by counsel for the General Counsel of Koehler
follows:
Q. Did Mr. Falise say anything?
A. He like disagreed with me about the S1-an-
hour raise the following year, he disagreed with
that.
Q. Can you tell us what he said, to the best of
your recollection?
A. I can't really remember.
Q. You can't remember word-for-word?
A. No.
Q. Can you tell us the gist of what he said?
A. No. He did say about personal holidays and
guarantee up to $250. He did say he didn't get that.
That that $1-an-hour raise after the first year, the
second year, he disagreed with that, that he didn't
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
say that or he said, I don't remember saying that,
not so sure as far as that $1-an-hour the second
year.
JUDGE LOTTr: Was your Union card brought up?
WITNESS: At that meeting?
JUDGE Lorr: Yes.
WITNESS: I don't recall that, I don't remember.
Donald Cole testified to the General Counsel's ques-
tions as follows:
Q. Were you asked about the meetings you at-
tended with Mr. Jewel, Mr. Falise, and Gary Dan-
iels?
A. Yes.
Q. Did Mr. Falise say anything to you during the
course of the meeting?
A. I had explained what happened, what I re-
called had happened at the meeting and I told them
that Falise said they were going to take away all of
these benefits if the Union got in and Mr. Falise
said, he said they could take them away, but they
were not going to, and I said I don't recall him
saying that at that meeting.
Q. You mean Mr. Falise said what he had said
back then was we could take them away, not that
they would take them away.
A. Yes.
JUDGE LOTT: Did he say anything else? Did he
say anything else?
WITNESS: I said a couple of things about that
meeting.
JUDGE LOTTr: This was the one on the 16th with
Falise, Jewel and Daniels?
WITNESS: Yes, we spoke about that meeting and
they asked me some questions about the lunchroom
meeting after certain employees removed their
cards.
JUDGE LoTT: Go ahead.
Q. Do you recall anything else that was said by
Mr. Falise?
A. I don't recall exactly what was all said. He
just asked me certain questions about my activities
and I answered them.
Q. Did Mr. Falise say anything else other than
what you have already told us?
A. I talked directly to Falise about what had
happened during that period of time, how things
got started and why I felt the way I did, what my
complaints were, why I did what I did.
Q. Did you volunteer the information, or did Mr.
Falise ask you?
A. I volunteered.
b. Analysis and conclusions
The General Counsel limits his allegation to three fac-
tors in urging that an 8(a)(1) violation be found in the
Johnny's Poultry interrogation. 5 He contends that the
place of the interview was coercive because the inter-
views were conducted at a situs not normally visited by
service and parts employees and at the same location
where prior unfair labor practices had been committed.
The General Counsel further argues that the interviews
went beyond the bounds of privileged pretrial prepara-
tion because Richard Falise was present and disagreed
with some of the witnesses' statements.
In the Johnny's Poultry Co. case, the Board set forth its
policy of permitting employers to conduct employee
interviews in order to ascertain facts necessary for the
preparation of its defense against charges issued. In that
case, the following safeguards are set forth:
1. The employer must communicate to the employee
the purpose of the questioning.
2. Assure the employee that no reprisals will take
place.
3. Obtain employee participation on a voluntary basis.
4. The questioning must occur in a context free from
employer hostility to union organization.
5. The questioning must not itself be coercive in
nature.
6. The questions must not exceed the necessities of the
legitimate purpose by prying into other union matters,
eliciting information concerning an employee's subjective
state of mind, or otherwise interfering with the statutory
rights of the employees.
"When an employer transgresses the boundaries of
these safeguards, he loses the benefits of the privilege."
Johnny's Poultry, supra.
After reviewing a testimony in this case, the only issue
is whether or not the Respondent violated requirements
4 and 5 of the Johnny's Poultry safeguards, since the Re-
spondent gave the employees the required assurances
listed in the first three safeguards. I also find that only
pertinent questions were asked of the witnesses. I further
find that, although the conference room was used, there
was no evidence offered by the General Counsel that an
alternative, private place was available. Although Falise
was present during the interviews, I do not view this as
a violation in the context of this case, since there had
been a cessation of unfair labor practices for over a year.
This factor also weakens the General Counsel's argument
with respect to the location of the interviews. Further-
more, I cannot find anything coercive in what Falise
said, since I view his comments as an attempt to refresh
his own recollection as well as that of the witnesses.
Lammert Industries, 229 NLRB 895 (1977). The evidence
further supports the conclusion that the interviews were
completely free of employer hostility to union organiza-
tion. In fact, according to the General Counsel's wit-
nesses, the Union was hardly mentioned and then only in
relation to legitimate questions put to the witnesses.
Based on my findings and conclusions, I cannot find
that the Respondent exceeded the bounds of legitimate
pretrial preparation and I will therefore dismiss allega-
tion 6(n) of the amended complaint.
5 Johnnys Poultry Co., 146 NLRB 770 (1964).
474
DANIELS CADILLAC
B. The Alleged 8(a)(S) Violation
1. The appropriate bargaining unit
a. Stipulated unit
The parties stipulated that the unit appropriate for col-
lective-bargaining purposes is as follows:
All service and parts department employees em-
ployed at the employer's Allentown, Pennsylvania
automobile dealership facility, excluding office cleri-
cal employees, car salesmen, guards and supervisors
as defined in the Act.
The parties further stipulated that 24 employees are in-
cluded in the unit.6
The agreed-on employee inclusions occupied the fol-
lowing job classifications on January 17: Cadillac parts
assistant, new-car get-ready employees, body shop me-
chanics, Cadillac mechanics, used-car get-ready employ-
ees, Cadillac apprentices, warranty clerk, service cashier,
body shop apprentices, Cadillac service advisor, BMW
mechanics, and body shop helper. The parties disagree
on the unit placement of 21 employees. The General
Counsel contends the unit should consist of 24 employees
while the Respondent contends the unit should have 45
employees.
b. General unit information
The Respondent's dealership facility is housed in a
new main building which was in the process of being
completed in January. This building has two floors and a
basement. The second floor has executive offices, clerical
offices, and a conference room. The first floor contains a
showroom which is separated from the parts and Cadil-
lac service department by a wall. The basement contains
the BMW service and parts department. A body and
paint shop is housed in a separate building located ap-
proximately 10 feet from the main building and parallel
to the BMW service and parts department.
The Respondent contends that the only supervisors at
its facility are Jack or Daniel Daniels, president; Gary
Daniels, vice president; and Richard Falise, assistant to
the president, controller, and general manager. The Re-
spondent further contends that Willard Jewel, service
and parts manager, is a supervisor and was responsible
for the overall supervision of the service and parts de-
partment employees.
At the hearing the General Counsel took the position that Richard
Falise Jr., Cadillac apprentice, should be excluded from the unit because
of the relationship between him and Richard T. Falise. However, in his
brief, the General Counsel concedes that Richard Falise Jr. should be in-
cluded in the unit The evidence shows that Richard Falise Jr. is the son
of Richard T. Falise. He is an apprentice mechanic and is compensated at
the same rate as the other apprentices and receives no special consider-
ationl or privileges. lie performs the same type work as the other appren-
tices Falise 's father, Richard T. Falise, is employed by the dealership as
assistant to the president Falise also functions as the general manager.
secretary-treasurer. and controller. However. he owns no stock in the
Company and receives only a weekly salary. Under these circumstances.
and because the parties agree to the inclusion of Richard Falise Jr., I find
that Richard F;alise Jr should be included in the unit.
The Respondent offered credible evidence that various
employees were given the title "manager" or "foreman"
because the Cadillac and BMW factory management in-
sisted that these titles be used.
The Respondent offered credible evidence that an or-
ganization chart was issued to its employees on January
23 because Willard Jewel was hospitalized on January 20
and it wanted to inform its employees who they should
report to in the absence of Jewel. No evidence was of-
fered that a demand was made after January 23. Further-
more, no evidence was offered that the reporting proce-
dure designated on the organization chart was in exist-
ence prior to the demand made by the Union on January
17. Therefore, I have accorded little weight to the con-
tents of the chart in deciding supervisory status of vari-
ous employees.
c. Status of car porters
There are four car porters at issue in this case: Theo-
dore Hester, John Manwiller, Karen (Grace) Manwiller,
and Robert Reed. The General Counsel contends that
the car porters are casual employees who lack a commu-
nity of interest with the other unit employees. The Re-
spondent contends that the car porters are regular part-
time employees having a community of interest with the
other service and parts employees. The car porters are
employed on an as-needed basis. They are called to work
from a list of names and numbers. Their job duties con-
sist of picking up and delivering cars for customers and
for the dealership. They also gas cars and do other er-
rands for the service and parts director who they report
to. They are paid according to each trip by separate
checks drawn from a payroll expense account and are
not carried on the Respondent's regular payroll account.
The porters are eligible for employee discounts on pur-
chases of parts, repair to cars, and purchases of new or
used vehicles; however, they do not share other employ-
ee benefits such as health insurance. Their names are not
on the Respondent's payroll records, no taxes are with-
held for them, and no W-2 forms are issued to them.
They are covered by a blanket workmen's compensation
insurance policy as are other employees of the Respond-
ent. The porters are retired people who apparently work
no other place. Although most of their time is spent
driving cars, they spend approximately 5 percent of their
time at the Employer's facility waiting for work.
The work records of the above employees were exam-
ined and disclosed that in 1979 John Manwiller worked
36 hours and made 6 trips in January; worked 17 hours
and made 3 trips in February; worked 52 hours and
made 9 trips in March; worked 54 hours and made 9
trips in April; worked 16 hours and made 4 trips in May;
worked 38 hours and made 6 trips in June; worked 21
hours and made 5 trips in July; worked 62 hours and
made 11 trips in August; worked 38 hours and made 7
trips in September; worked 35 hours and made 4 trips in
October; worked 28 hours and made 3 trips in Novem-
ber; and worked 8 hours and made 2 trips in December.
During the first part of 1980, Manwiller worked 34
hours and made six trips in January; worked 4 hours and
475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made one trip in February; and worked 25 hours and
made five trips in March.
Robert Reed's work record revealed that in 1979 he
worked 27 hours and made five trips in March; worked
41 hours and made seven trips in April; worked 12 hours
and made two trips in May; worked 2 hours and made
one trip in June; worked 6 hours and made one trip in
July; worked 29 hours and made seven trips in August;
worked 24 hours and made four trips in September;
worked 30 hours and made three trips in October; and
worked 4 hours and made one trip in November. During
the first part of 1980, Reed worked 10 hours and made
two trips in January, and worked 10 hours and made one
trip in February.
The work record of Theodore Hester revealed in 1979
he worked 27 hours and made four trips in April;
worked 18 hours and made three trips in June; worked 6
hours and made one trip in September; worked 7 hours
and made one trip in October; and worked 9 hours and
made two trips in November. During the first part of
1980, Hester worked 12 hours and made one trip in Feb-
ruary, and worked 12 hours and made two trips in
March.
The work record of Grace Manwiller for the year
1979 revealed that she worked 4 hours and made one
trip in April; worked 11 hours and made two trips in
June; worked 7 hours and made one trip in July; worked
12 hours and made two trips in September; and worked
7 hours and made one trip in October. During the first
part of 1980 she worked 4 hours and made one trip in
January, and worked 4 hours and made one trip in
March.
The evidence reveals that, with the exception of John
Manwiller, the other car porters work sporadically and
infrequently. For example, Reed worked a total of 24
hours on four trips from November 1979 through Febru-
ary 1980. Hester worked a total of 21 hours on three
trips for the same period, and Grace Manwiller worked 4
hours on one trip during that period. They were on-call
employees having infrequent and irregular work sched-
ules. Therefore, I find that with the exception of John
Manwiller, the other three car porters were casual or ir-
regular part-time employees who should be excluded
from the unit. Maietta Contracting, 251 NLRB 177
(1980).
I further find that all four car porters lack a communi-
ty of interest with the service and parts employees. They
are paid differently and earn only $3.25 per hour, which
is considerably less than most of the other unit employ-
ees. They are retired people who supplement their
income with the work Respondent assigns them. The Re-
spondent conceded that the porters spend only 5 percent
of their time at the dealership facility; however, even this
figure is misleading since that 5 percent represents only a
percentage of time they are called to work, which is in-
frequent. A review of their records indicates that they
spend virtually all of their time, when called to work, on
the road delivering or picking up dealership automobiles
from such places as Philadelphia and Harrisburg, Penn-
sylvania, New York, New Jersey, and Connecticut.
Thus, the records indicate that the porters spend very
little, if any, time delivering customer automobiles, wait-
ing at the Respondent's premises, or performing work
similar to that of service and parts department employ-
ees. For the above reasons, I conclude that the car por-
ters lack a community of interest with the other unit em-
ployees and should be excluded from the stipulated unit.
d. Status ofjanitors
The dealership employs eight janitors at its facility on
a regular part-time basis: Ruth Lorkowski, Stanley Lor-
kowski, Joan Lorkowski, Robert Lorkowski, Mervin
Peters, Nelli Chinchilla, Marie Hunsicker, and William
Hunsicker. The General Counsel contends that the jani-
tors are independent contractors having no community
of interest with the other unit employees, while the Re-
spondent contends that the janitors are employees having
a sufficient community of interest with the other unit em-
ployees to be included in the stipulated unit.
In 1977 when the janitorial service was first estab-
lished, Falise met with Ruth Lorkowski and explained to
her what services he wanted performed weekly. That is,
clean the service departments, empty the trash, wash
windows, and clean the restrooms. Lorkowski decided
how many janitors she would have to hire and she and
Falise decided on how much money she would need
weekly to accomplish these tasks. It was also decided
that "extras" would require payment of money above the
weekly amount established for the regular duties. These
"extras" included washing the windows more than once
per week and shampooing rugs which basically would be
accomplished on Saturday and Sunday. For regular
work, the Respondent issues a weekly check for a fixed
amount of money to Ruth Lorkowski, and she in turn
pays the other janitors. Hours of work were established
at this time and are 7 to 10 a.m. and 5:30 to approximate-
ly 10 p.m. Service and parts employees work from 8 a.m.
to 5:30 p.m. In the morning the janitors clean the bath-
rooms and the lunchroom areas where the service de-
partment employees are unlikely to be except for occa-
sional use of the lavoratory or a trip to the lunchroom
for coffee. They do not clean the shop areas until after
5:30 p.m. when service and parts department employees
have left for the day.
Ruth and Stanley Lorkowski work 35 hours in 5 days
per week. Joan Lorkowski works 15 to 20 hours in 3
days per week. Nelli Chinchilla, Robert Lorkowski, and
William Hunsicker work 15 to 20 hours in 2 or 3 days
per week and Marie Hunsicker works 10 to 15 hours per
week.
Ruth Lorkowski reports to Willard Jewel or Richard
Falise on a regular basis to find out whether or not jani-
torial services are adequate. At that time, Jewel or Falise
inform her as to whether the services or work was ade-
quately performed and give specific instructions as to
what they want accomplished that week. Ruth Lor-
kowski in turn instructs the other janitors based on her
conversation with Falise and Jewel. At times however,
Falise and Jewel instruct the janitors individually on
what needs to be accomplished such as putting toilet
tissue in the restrooms, filling soap dispensers, emptying
trash, and changing light bulbs. The dealership provides
the cleaning supplies and equipment used by the janitors.
476
DANIELS CADILLAC
Although there is a set amount paid to Ruth Lorkowski
by the dealership for the cleaning that must be done on a
daily basis in the shop, an extra amount is paid for those
jobs not done on a daily basis.
Ruth Lorkowski has the authority and does in fact
hire and fire the janitors and directs their work. The Re-
spondent, however, reserves the right to approve or
reject any janitor hired by her.
The janitors do not appear on the Respondent's pay-
roll records, no checks are issued to them individually,
no taxes are withheld for them, and no W-2 tax forms
are prepared for them. They do not receive other em-
ployee benefits such as health insurance, life insurance,
and disability. With the exception of Ruth and Stanley
Lorkowski, they do not receive discounts on repairs and
reduced prices for the purchase of used cars. All janitors
are covered by the Respondent's workmen's compensa-
tion plan. Three janitors, Ruth Lorkowski, Stanley Lor-
kowski, and Joan Lorkowski, worked specific hours es-
tablished by the Respondent. Janitors share the same
lunchroom and restrooms as the other employees work-
ing for the Respondent.
After reviewing all of the evidence and the criterion
established for finding that an independent contractor
rather than an employee relationship exists under NLRB
v. United Insurance Co., 390 U.S. 254 (1968), and Stand-
ard Oil Co., 230 NLRB 967 (1977), I conclude that the
janitors are employees because they meet virtually none
of the standards established to qualify for independent
contractor status. It appears obvious that the janitors
performed functions which are an essential part of the
Company's operation. They work exclusively for the Re-
spondent and this arrangement apparently will continue
so long as they perform their work satisfactorily. It ap-
pears further that any arrangement made between the
Respondent and Ruth Lorkowski could be changed uni-
laterally by the Respondent and was in fact changed in
April when janitorial services were cut back in an econo-
my move. Finally, the evidence is also clear that the Re-
spondent has retained control not only over the ends to
be achieved, but also the means to be used in achieving
such ends. George Transfer Co., 208 NLRB 494 (1974).
Accordingly, I find that the janitors are employees and
do not have the status of independent contractors.
Community of interest shared by the janitors and the
service and parts department employees is not as close as
other contested employees who perform unit work.
However, these factors emerge. The janitors perform a
vital function which is essential to the Company's normal
operation. They work in the same areas and share the
same facilities as other unit employees. They also per-
form some work when the service and parts employees
are still working. Moreover, they have the same ultimate
supervision as the other unit employees. For the above
reasons and since no other union is seeking to represent
them separately, I conclude that the janitors, with the ex-
ception of Ruth Lorkowski, should be included in the
unit. Beyerl Chevrolet, 199 NLRB 120 (1972); Dadco
Fashions, 243 NLRB 1193 (1979).
The evidence supports a finding that Ruth Lorkowski
is a supervisor within the meaning of the Act, because
she hires and discharges janitors and responsibly directs
their work. Accordingly, I find that Ruth Lorkowski
should be excluded from the unit.
e. Service clerks and telephone operator
The General Counsel contends that Fern Hoch and
Victoria Rackus, service clerks, and June Walters, tele-
phone operator, are office clerical employees and should
be excluded from the unit. The Respondent contends
that these employees are plant clericals with a sufficient
community of interest with the unit employees to be in-
cluded in the stipulated unit.
Victoria Rackus and Fern Hock work on the second
floor of the Respondent's facility where they are located
in a general office area near the executive offices and the
conference room. They work with Cindy Davis, miscel-
laneous administration, and Kathy Krupka, title and bill-
ing clerk. All of these employees have desks and separate
restrooms on the second floor. On the telephone list cir-
culated by the Respondent in January, these four em-
ployees were listed under the word "office" along with
Daniels and Falise. Their titles are as follows: Fern
Hoch, accounts payable and receivable, Vicky Rackus,
leasing, Kathy Krupka, title clerk, Cindy Davis (nothing
listed), and June Walters, operator. Hoch, Rackus, and
Walters are hourly paid, do not punch a clock, and are
supervised by Falise.
Fern Hoch's duties consist of auditing the cashiers
every morning in order to see that the amount of money
turned in for the repair orders is correct, making sure
that all charge slips or service work had been prepared
accurately, and submittting all charge slips for payment.
She also maintains all of the accounts receivable work
for the shop. In the event that a customer's account
shows an error, she corrects it. She also pays all invoices
for parts purchased by the dealership, making sure that
the purchase orders are attached. She buys all of the sav-
ings bonds for the service department employees and de-
livers them directly to the mechanics. Hoch also files all
copies of the service department repair orders and ar-
ranges for transportation of the mechanics to school. She
processes all internal repair orders, which sometimes in-
volves the transfer of equipment from one car to an-
other. She also processes all customer repair orders by
double checking the paperwork. According to the Re-
spondent, Hoch spends approximately 50 percent of her
time doing service department-related work and 50 per-
cent of her time doing administrative work. Also, ac-
cording to the Respondent, Hoch spends 90 percent of
her time in the office area and approximately 10 percent
of her time elsewhere in the shop, talking to service de-
partment employees.
Victoria Rackus has a desk on the second floor with a
telephone and spends her time between the general office
area and the computer room. Rackus programs service
work on customer automobiles into the computer. This
allows the service advisor to check the computer by
merely punching in the serial number and mileage on a
customer automobile. The computer then prints out the
history of all the work which has been done on the auto-
mobile as well as recommendations for service needed
when the customer arrives. Rackus spends approximately
477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
50 percent of her time doing work related to the service
and parts department. She also checks employees' time-
cards to see that they are paid properly. If an employee
has not punched out correctly, she goes into the shop to
talk to the mechanic or to Willard Jewel. At times, the
mechanics also go to Rackus in order to find out about
any discrepancies in their pay. She must then look over
the repair orders to determine the correct amount.
Rackus also maintains a weekly analysis by service advi-
sor and mechanic on how much labor is sold per ticket,
and how many parts are being sold per ticket per me-
chanic, per service advisor. This is done in order that the
dealership may determine how the computer has in-
creased its customer service business. Rackus also main-
tains a list of service customers and their frequency of
visits. She oftentimes prints a listing of customers who
have not been in for 6 months or more so that the serv-
ice advisors can call them to suggest a checkup. While
the Respondent's witness testified that Rackus spends ap-
proximately 10 percent of her time in the shop and 90
percent of her time in the office area, Donald Cole and
Michael Dalton testified that she comes to the shop area
approximately two times a year.
June Walters, whose job was eliminated in an econo-
my move, was the telephone operator who was located
in the center of the showroom floor which is separated
from the service department by a wall which extends the
full length of the building. Walters was trained by the
telephone company and her main duties consisted of an-
swering the telephone and transferring calls to the appro-
priate individuals in the Company. She also accompanied
customers to the service area showing them where the
area is located and she also served coffee to customers in
the customer waiting room which is located between the
showroom and the service department. Like Rackus and
Hoch, Walters was paid on an hourly basis and received
the same benefits as the service and parts department em-
ployees.
The record evidence indicates that Hoch and Rackus
work in a traditional office area with other office clerical
employees who are not included in the unit, and spend
very little time in contact with service department em-
ployees. I am not convinced that 10 percent of their time
is spent in the shop areas and, for this reason, I discredit
Falise's testimony in this respect. In contrast, it appears
that Hoch and Rackus spend nearly all of their time
working with office clerical employees located in the
general office area on the second floor which is removed
and isolated from the service and parts department areas.
Moreover, as a group, the clerical employees are super-
vised by Falise while the other unit employees are super-
vised by Jewel. Finally, their job duties seemed to be of
a typical office clerical nature.
June Walters had very little if any contact with unit
employees. Her only contact appears to be by telephone
with management personnel. I find that Walters did not
actually go into the service department, but merely es-
corted customers to the door leading to that area.
Accordingly, I find that while all three employees
share the same benefits with service employees, they
have completely different job duties and supervision.
They are physically separated from the service employ-
ees and have minimal contact with them. Therefore, I
will exclude Hoch, Rackus, and Walters from the unit
because they are office clerical employees lacking a com-
munity of interest with the service and parts department
employees.
f. Used-Car get-ready (Clark Peters)
The General Counsel contends that Clark Peters is a
supervisor and should be excluded from the unit, while
the Respondent contends that Peters is an employee and
should be included in the unit.
Clark Peters is employed as one of the used-car get-
ready employees and has a helper named Richard Goe-
bert. Peters spends almost all of his time refurbishing
used cars. He is paid a salary and has worked for the
dealership for approximately 30 years. Peters reports to
the used car manager who instructs him in what cars to
work on and what to do. Peters in turn passes these in-
structions on to his helper Richard Goebert. Ron Bres-
nak, new-car get-ready employee, also has a helper
named Alexander Dick and has the same authority over
Dick as Peters has over Goebert. Ron Bresnak who re-
ports to the new-car sales manager and Clark Peters
often work together preparing cars for sale. Peters
earned $16,490 in 1980 while Richard Goebert earned
$8,041 and Alexander Dick earned $6,775. There is no
record of the earnings of Bresnak. These last three em-
ployees, however, are hourly paid while Peters earns a
salary.
Peters has no authority to hire or fire and has not ex-
ercised this authority in the past. He has no authority to
recommend hiring and firing or to discipline employees.
He cannot adjust grievances and if his helper has a prob-
lem or grievance he takes it to either Willard Jewel or
the used-car sales manager. Peters wears a white shirt
while the other three employees wear shirts that are col-
ored.
The evidence indicates that Peters has no indicia of su-
pervisory authority. I find that he spends nearly all of his
time performing unit work and, at most, he gives routine
directions to his helper in the same way that the mechan-
ics do with their helpers and apprentices. While he is on
salary and paid twice as much as helpers, these factors
could be attributed to his long service with the dealer-
ship. I find that his status is nearly identical with Ronald
Bresnak's who is included in the unit by agreement of
the parties. Accordingly, I find that Clark Peters is not a
supervisor and should be included in the unit.
g. Cadillac shop foreman (Robert Ettl)
The General Counsel contends that Robert Ettl is a
supervisor and should be excluded from the unit, while
the Respondent contends that Ettl is a technical lead me-
chanic and should be included in the unit.
At the time material herein, Robert Ettl was designat-
ed as the "shop foreman" for Cadillac factory records;
however, he was actually a technical lead mechanic ac-
cording to the Respondent. Ettl is the best mechanic the
dealership has because he has the most experience and
had attended all of the Cadillac schools. He has been em-
ployed at the dealership for approximately 30 years. The
478
DANIELS CADILLAC
dealership relies on his technical ability to help other me-
chanics in the proper diagnosis and repair of vehicles.
According to the Respondent's witnesses, Ettl keeps
his tools in the shop and spends 80 percent of his time
diagnosing vehicle problems, and repairing and road-test-
ing vehicles. The other 20 percent of his time is spent
writing up repair operations, warranty work, and coding
them. In accomplishing these tasks, Ettl has the authority
to assign work (job orders) to the mechanics the same as
the service advisors. Ettl also has the authority to put
"rush" repair orders for special customers ahead of
others. However, Ettl has no authority to reprimand em-
ployees. Furthermore, Ettl has no authority to hire or
fire employees nor to effectively recommend such action.
He has no authority to recommend raises or to adjust
grievances and has done none of these things. He reports
to Willard Jewel who has the authority to take the
action listed above. Ettl has no office and spends almost
all of his time on the shop floor working with the other
mechanics.
Robert Ettl is paid a weekly salary plus a I-percent
bonus based on the monthly gross profit in the Cadillac
service department, whereas the mechanics are paid on a
hourly flat rate basis with a weekly guarantee plus a 5-
percent retroactive bonus if productive labor reached 45
hours or more.7 A review of the 1980 payroll records
for Ettl, the six Cadillac mechanics, and the Cadillac
service advisor reveals that their gross pay ranged from
$15,000 to $21,000 while Ettl earned $18,734. He earned
from $2000 to $6000 more than four mechanics and the
service advisor, the same as one mechanic and $2500 less
than another mechanic. Ettl's benefits are the same as the
other mechanics with the exception that he is supplied
with a company vehicle (1977 Chevrolet Monte Carlo)
because he has worked for the Company for 30 years.
Ettl has the use of this automobile when it is not out on
loan to customers. He is otherwise allowed to use this
car to assure that it is in good working order.
Ronald Kehs, front-end mechanic, testified that Ettl
was his foreman and he reported to him; however, when
Ettl could not handle a problem he took it to someone
above him. Kehs further testified that Ettl brought him
repair orders, told him how to arrange his work, and
told him which job would be next. However, Kehs testi-
fied that he went to Willard Jewel to get permission for
vacation time and Jewel told him to tell Ettl when he
would be on vacation.
Ronald Kehs testified with respect to Robert Ettl's
duties as follows:
A. It was more or less a chain of command. He
was first in line and he took it to someone above
him if he couldn't handle it.
Kehs further testified:
I Service advisors are also paid a salary plus a bonus based on 4 per-
cent of monthly sales of parts and labor. Drissel receives a 3-1/2 percent
bonus based on monthly gross profits. Perna is paid a I-percent bonus
based on monthly gross sales. Frankenfield receives a 2-1/2 percent
bonus based on the monthly gross profit of Cadillac parts sales. Frank
Reichl receives a 5-percent bonus based on monthly gross profit in the
body shop.
A. In 1980 Robert Ettl was the foreman. If we
had any service problems, we would go to Bob. If
he couldn't handle it, he would go to Willard him-
self.
Q. Relating to service problems?
A. Right.
Daniel Kuhns, Cadillac mechanic, testified that Ettl
wore street clothes and had no tools in the shop. He fur-
ther testified that Ettl did not assign work in January
1980. He generally described Ettl's duties as road-testing
cars, helping the other mechanics diagnose problems,
helping the mechanics work on cars, helping the service
writers, and talking to customers.
Wilbur Kunkle, Cadillac mechanic, testified that the
service writers assigned him work, not Robert Ettl. He
further stated that he asked Willard Jewel about time off
for vacation.
William Lewers, Cadillac service advisor, testified that
Willard Jewel was his supervisor. He stated that he did
not know whether Ettl had tools in the shop or not. He
further testified that Ettl distributed work orders to the
mechanics; however, Lewers also had the authority to
distribute work orders. He finally stated that it was a
routine or normal function for Ettl to put a special cus-
tomer ahead of another customer and to assign the first
available mechanic to that customer.
Richard Falise testified that Willard Jewel supervised
the Cadillac mechanics and was available on the shop
floor several times a day to answer any problems that
the mechanics might have.
After reviewing all of the evidence, I find that the
General Counsel has not proved by a preponderance of
the evidence that Robert Ettl is a supervisor within the
meaning of the Act. It is undisputed that Ettl could not
hire or fire or effectively recommend such action. Fur-
ther, it is undisputed that he had no authority to disci-
pline employees or resolve their grievances or to effec-
tively recommend such action. The evidence offered by
the General Counsel indicates that at most Ettl could
routinely assign work based on his experience and exper-
tise. Ettl also could resolve service-related problems
which he was expected to do because of his special
qualifications. His salary and bonus in my opinion is not
so unique as to confer supervisory status. Nor does his
title confer any special status in light of his duties which
by all accounts consisted largely of working on vehicles,
assisting mechanics, diagnosing problems, and road-test-
ing cars. The General Counsel argues that at the meeting
on Janaury 23 Falise distributed an organization chart
which informed the Cadillac mechanics as to who they
should take their problems to; in this case, Ettl. Howev-
er, the evidence supports a finding that this meeting was
held a week after the Union's demand and was a tempo-
rary measure caused by the hospitalization of Willard
Jewel 2 or 3 days prior to the meeting. Thus, I have ac-
corded little or no weight to this evidence in making my
finding. Accordingly, I find that Robert Ettl is not a su-
pervisor and should be included in the stipulated unit.
479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
h. BMW Service Manager (David Drissel)
The General Counsel contends that David Drissel is a
supervisor within the meaning of the Act and should be
excluded from the unit, while the Respondent contends
that he is, at most, a technical lead mechanic who should
be included in the unit as an employee.
The Respondent's witnesses testified that Drissel is
designated a service manager because of BMW require-
ments. They further testified that because of a BMW re-
quirement that its parts not be mixed with Cadillac parts,
the dealership is required to have a separate operation
for BMW automobiles. Without this requirement, there
would be only one service department. Drissel is located
in the BMW service department, along with three other
BMW mechanics, which is located in the basement of
the Respondent's facility. He has no office; however, he
has a standup desk on the shop floor where he spends 50
percent of his time writing service orders for customers,
inserting warranty claim code numbers, and insuring that
they are punched on the back of the ticket. Another 20
percent of Drissel's time is spent helping mechanics diag-
nose problems. He keeps his tools in the shop and ap-
proximately 30 percent of his time is spent actually
"turning wrenches."
Drissel works with three other mechanics and has no
authority to hire or fire them or any other employees.
He has not done so in the past, nor does he have author-
ity to effectively recommend the hiring and firing of
other employees. He does not recommend raises for
anyone. Drissel has no authority to adjust employee
grievances. Employees having problems must go to Wil-
lard Jewel who is in the shop every day. Drissel has no
authority over the other BMW mechanics and does not
discipline them for any reason. This authority lies in the
hands of Willard Jewel. Drissel performs the work on
automobiles that "come back" for repairs. He does not
direct a mechanic to re-do the job or otherwise penalize
him for any problems on "come-back" work. Drissel,
however, has authority and does assign work (job
orders) to other BMW mechanics.
Drissel has the same benefits as the other mechanics
with the exception of the use of a company demonstrator
which has to be available for customer use. He attends
service meetings with other mechanics; however, he
does not conduct any of these meetings.
Drissel was paid a salary of $18,000 in 1980 which in-
cluded a bonus based on a percentage of sales. Other
BMW mechanics earned approximately $17,000 and
$18,000 for the same period. Drissel wears a uniform
with a light blue shirt while the other mechanics wear
dark blue shirts. According to the Respondent, this was
done in order to let customers know who to go to to
have their service order written up.
Michael Dalton, BMW mechanic, testified that when
he was hired he was told that Drissel was a senior serv-
ice technician. However, shortly thereafter, Drissel as-
sumed the position of service manager and Dalton con-
sidered him to be his boss. Dalton further testified that
Drissel assigned work to him and that he took his prob-
lems to Drissel. These problems related to special tools
that were needed in the shop and problems concerning a
draft coming into the shop. Richard Cole, another BMW
mechanic, testified that he considered Drissel to be his
supervisor and that Drissel assigned work to him.
As in the case of Robert Ettl, I find that the General
Counsel has not established by a preponderance of the
evidence that David Drissel was a supervisor during the
critical time herein. While it was established that Drissel
assigned work to employees and listened to employee
problems, there was no evidence offered to rebut the Re-
spondent's evidence that Drissel's work assignments
were routine in nature and similar to those made by serv-
ice advisors. Furthermore, no evidence was offered to
show that Drissel exercised any independent judgment or
that his decisions were based on anything other than his
experience and knowledge. Moreover, there was no evi-
dence offered by the General Counsel that Drissel ever
adjusted any employee grievances. All the record re-
flects is that he listened to some employee problems.
While it is true that Drissel had the title of manager, and
received a bonus, I do not consider these factors as con-
trolling, especially since he spent almost all of his time
writing service orders and working with his hands. Also
to be noted is that he earned approximately the same
wages as the other mechanics. Of equal significance is
the unrefuted testimony that Drissel had no authority to
hire, discharge, grant wage increases, and adjust griev-
ances or to effectively recommend such actions. Al-
though two employees testified that they thought Drissel
was their boss, there is very little evidence to show why
they considered him to be their supervisor. There is no
evidence that they were told this by management. There-
fore, I conclude that they made this assumption based on
Drissel's routine assignments to them and his listening to
their problems on occasion. This is not sufficient in my
opinion to confer supervisory status. Therefore, I find
that the General Counsel has not sustained his burden of
proving that David Drissel was a supervisor within the
meaning of the Act. Accordingly, I find that Drissel
should be included in the unit stipulated by the parties.
i. Body Shop Manager (Frank Reichl)
Frank Reichl who was designated as body shop man-
ager works in the body shop which is located in a sepa-
rate building approximately 10 feet away from the BMW
shop. In January six other employees worked in the
body shop: four body shop mechanics, a helper, and an
apprentice. According to the Respondent's witnesses
Riechl is no more than a service advisor who issues
work orders to the body shop mechanics on a first-come-
first-served basis. There is no discretion involved as to
who gets what job and, if there is a disagreement be-
tween the employees concerning a particular job, Wil-
lard Jewel is notified. Riechl is responsible for working
up estimates on customer automobiles and greeting cus-
tomers. He spends approximately 10 percent of his time
doing service writing and the rest of his time is spent
physically working on cars and helping the other body
shop employees. He has tools in the shop and spends ap-
proximately 50 percent of his time doing body work or
painting. He also picks up automobile parts and washes
cars.
480
DANIELS CADILLAC
In carrying out his duties, Reichl has no authority to
transfer employees from one job to another or to hire
and fire other employees, or to recommend such action.
He never recommended that anyone receive a raise nor
had he ever recommended any other change in employee
status. If employees had problems or gripes they were to
go to Willard Jewel. Several body shop employees had
gone to Willard Jewel's office from time to time. Reichl
has no authority to adjust grievances. Reichl attends
service meetings with the other mechanics. His benefits
are the same as those received by other mechanics and
he wears a uniform like the other mechanics with the
only difference being a white instead of blue shirt with
the word "foreman" on it.
Reichl is paid a salary plus a 5-percent bonus based on
gross profits of the body shop, while the mechanics are
paid a flat base rate on an hourly basis. Service advisors
receive a salary plus a 4-percent bonus based on parts
and labor sales. In 1980 Reichl's salary was more than
two body shop mechanics but less than two other me-
chanics. Glenn Koehler earned approximately $19,500,
John Persley earned S21,000, while Reichl earned ap-
proximately S18,000. Donald Cole, another body shop
mechanic, earned $15,500 and Kermit Krause earned
$11,315.
Donald Cole, a body shop employee, testified that
Reichl was his supervisor because he gave him work
orders. He further testified that he took his work-related
problems such as how to accomplish the work on an
automobile to Frank Reichl. With respect to grievances
concerning working conditions, Cole testified that he
took his small problems to Reichl and all the other griev-
ances to Jewel. Although Cole stated that he would tell
Reichl if he were going to be late or leaving early, he
also testified that he would merely inform Reichl and not
ask his permission. Cole further stated that he took a
problem concerning a "cold draft" in the shop to Reichl;
however, Reichl never did anything about the problem,
causing him to go to Jewel and Falise. Cole also inquired
about a raise to Reichl; however, Reichl told him that he
did not have any authority to give raises. Although Cole
testified that he was told that he would be working
under Reichl when he was hired, there was evidence
that Cole was hired as Reichl's helper. According to
Cole, Reichl spent approximately 20 percent of his time
working in the shop on cars and the remainder writing
estimates, doing paper work, making appointments, hand-
ing out work, and seeing that the jobs were done cor-
rectly.
Body shop employee Truman Webb testified that
Jewel told him at a meeting in the body shop that Reichl
was his boss. According to Webb, this conversation took
place in early 1980. Jewel confirmed that such a meeting
occurred shortly before he went into the hospital for sur-
gery. He testified that he held a meeting with the body
shop employees because he was uncertain as to the
amount of time that he would be away from his job. It
was therefore necessary to make a temporary change in
responsibility, and he told each body shop employee to
respect Frank Reichl as a superior while he was gone.
Body shop helper Wayne Kerstetter testified that he
would call Reichl in the event he was going to be absent
on a particular day, but that he would simply tell him he
would not be in, and Reichl would say, "Okay." He also
testified that it was necessary to talk to Willard Jewel
about vacations. If he wanted to work overtime, he
would check with Frank Reichl who on some occasions
would give him permission and on other occasions
would have to check with Willard Jewel before granting
permission.
The General Counsel presented very little probative
evidence that Reichl possessed supervisory authority.
The picture that emerges from all the testimony is that
Reichl assigned work orders to mechanics on a routine
basis and spent the bulk of his time writing service
orders and performing body and paint work on custom-
er's automobiles. Although the body shop is physically
separated from the dealership facility, the evidence indi-
cates that easy access is possible through connecting
doors and that body shop employees were accustomed to
taking their grievances to Willard Jewel; thus indicating
that Reichl had no authority to resolve them. The unre-
futed evidence presented by the Respondent is that
Reichl at the critical time in question (prior to January
17) had no authority to hire, discharge, grant wage in-
creases, adjust grievances, or to effectively recommend
such action. While he is paid a salary, as opposed to a
flat hourly rate like other mechanics, his earnings were
not sufficient to indicate that the Respondent had con-
ferred supervisory responsibility or authority on him.
The General Counsel argues that if Reichl and Drissel
are not found to be supervisors, it would leave Willard
Jewel in charge of 45 employees which is a dispropor-
tionate ratio of supervisors to employees. However, as-
suming that 45 employees are in the unit, which is con-
trary to the General Counsel's position, the evidence in-
dicates that Jewel supervises 28 employees (parts em-
ployees, body shop mechanics, Cadillac shop mechanics,
BMW mechanics, car porters, and the service advisor)
while Falise supervises 13 employees (janitors, office
clericals, warranty clerk, and service cashier). The four
new- and used-car get-ready employees are supervised
by the new- and used-car managers. Thus, it appears that
the ratio of 28 employees to I supervisor is not out of
line considering the high experience level of the mechan-
ics (18 years average experience) and the fact that there
are experienced and highly trained lead mechanics in the
various departments who help resolve work-related
problems.
Accordingly, I find that the General Counsel has not
carried his burden of proving that Reichl was a supervi-
sor prior to January 17 and I will therefore include him
in the unit.
j. Cadillac parts manager (Robert Frankenfleld) and
BMWparts manager (Alfred Perna)
The General Counsel contends that Robert Franken-
field is a supervisor and that Alfed Perna lacks a commu-
nity of interest with the service and parts employees and
that both should be excluded from the unit. The Re-
spondent contends that Frankenfield is an employee and
that Alfred Perna shares a community of interest with
481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the service and parts employees and both should be in-
cluded in the unit.
Robert Frankenfield, Cadillac parts manager, works in
the Cadillac parts department which is located next to
the cashier's booth on the first floor of the Cadillac serv-
ice area. The parts department, cashier's office, and serv-
ice counter are all in one area with a counter which sep-
arates it from the shop. Robert Frankenfield spends 95
percent of his time receiving and stocking parts on the
shelves, and dispensing parts to mechanics and customers
who come to the parts counter. The other 5 percent of
his time is spent at the teletype machine and ordering
parts within the framework of preestablished guidelines.
The dealership has a rule of maintaining a parts invento-
ry of 2.5 to 3 percent of sales. Frankenfield makes no de-
cisions other than the routine ordering of parts and any
decisions involving something out of the ordinary are
made by the Service and Parts Manager Willard Jewel
or General Manager Richard Falise. Frankenfield has no
authority to hire and discharge other employees or to
recommend such action, and he has never done so in the
past. He has no authority to recommend that anyone be
reprimanded and has never done so. Frankenfield has no
authority to adjust employee grievances which authority
lies exclusively with Willard Jewel. He has no authority
to set lunch periods and he and his helper agree among
themselves as to what time they go to lunch. Franken-
field has a helper, Russell Anspach, who assists Franken-
field in receiving and unloading parts and stocking them
on the shelves. In performing these duties, Frankenfield
directs Anspach's work by telling him how to do these
jobs and where to stock the various parts. According to
the Respondent's witnesses, the relationship between
Frankenfield and his helper is the same as the relation-
ship between the mechanics and their helpers. Anspach
testified that he assumed that Frankenfield was his boss
because he was the parts manager. He further testified
that Frankenfield once in a while asked him why he was
late. If Anspach ever wanted time off, he would go to
Frankenfield, but Frankenfield would in turn ask Jewel.
Anspach testified that he asked Frankenfield for a raise
which was later granted but that he did not know how
this was accomplished since he also asked Jewel for a
raise. Frankenfield is labeled as parts manager because
the dealership is required to have someone in that posi-
tion by the factory. Willard Jewel is responsible for all
parts and service. If there are any decisions in the parts
department requiring discretion and independent judg-
ment, Jewel makes them. Frankenfield is paid a weekly
salary plus a monthly commission based on 2.5 percent
of the gross profit on parts sold. However, his total com-
pensation is approximately 25 percent less than the aver-
age mechanics. Frankenfield earned $15,800 during 1980
while mechanic Ronald Kehs received $12,340. Wilburt
Kunkle, another mechanic, earned $18,000, Richard Cole
earned $17,912, and Michael Dalton earned $17,221.
Frankenfield has attended some management meetings.
The service writers who have been included in the unit
have also attended these meetings. However, Franken-
field does not attend top management meetings where
corporate policy is set. Frankenfield has the same bene-
fits as the mechanics and other parts and service person-
nel. He wears a uniform consisting of a white shirt and
blue pants similar to that worn by the service advisors.
All the other parts and service personnel also wear uni-
forms.
Alfred Perna is the BMW parts manager and the sole
employee in the BMW parts department located in the
basement of the Respondent's facility. He has no helper
or anyone else working with him. Perna spends all of his
time stocking and issuing parts to mechanics and custom-
ers. He is under the supervision of Willard Jewel, the
same as other parts and service personnel. Perna has no
authority to hire and fire other employees or to effec-
tively recommend such action. He has no authority to
recommend raises or other personnel changes and has
not done so in the past. His total compensation is ap-
proximately 25 to 30 percent less than that of the me-
chanics. He receives the same benefits as the other parts
and service employees and attends service meetings with
them.
The evidence establishes that neither Frankenfield nor
Perna is a supervisor within the meaning of the Act. At
most, Frankenfield issues routine instructions to his
helper which does not require him to exercise any inde-
pendent judgment. The judgment exercised by Franken-
field appears to be nothing more than that normally exer-
cised by a worker experienced in his job. Grimaldi
Buick-Opel, Inc., 202 NLRB 436 (1973). It is equally ob-
vious that Frankenfield shares a close community of in-
terest with the mechanics and since the parties agreed to
include parts department employees in the unit, I con-
clude that Frankenfield should be included in the unit
since he is not a supervisor, and works in the same area
with the mechanics, having close daily contact with
them. He also receives the same benefits and is under the
same supervision.
Alfred Perna is clearly not a supervisor since he has
no employees to supervise. I further find that Perna
shares a community of interest with the mechanics and
should be included in the unit which includes parts em-
ployees by agreement of the parties.
Accordingly, I find that Alfred Perna and Robert
Frankenfield should be included in the unit.
2. Authorization cards and demand
It is admitted that on January 17 union representatives
met with the Respondent's manager and requested recog-
nition in a unit of all service and parts employees. The
evidence is also undisputed that, at the time of the
Union's demand, it had 17 signed authorization cards,
none of which had been withdrawn. Each of the cards
was authenticated by the signer, and was received into
evidence without objection. The union authorization
cards in unambiguous language indicated that the signers
authorized the Union to represent them for the purposes
of collective bargaining. The Respondent, in its brief,
argues that the cards cannot be used for the purpose of
establishing the existence of majority support because the
employees were told by the union representatives that if
they signed a card the Union would pay their salary in
the event they got fired, went on strike, or were laid off.
Thus the Union was implying that if employees did not
482
DANIELS CADILLAC
sign a card, they would lose their job, get laid off, or go
out on strike. The Respondent argues that the cards
were obtained through the use of coercion and unlawful
promises of benefits. I find that the Respondent's argu-
ment is not supported by the evidence. The evidence is
overwhelming that employees were told by the Union
that, if they signed a union card and were later dis-
charged because of their union activities or went on
strike, the Union would stand behind them or support
them and pay their wages. I find nothing coercive in this
statement nor do I find an unlawful promise of benefit.
Staats & Staats. Inc., 254 NLRB 888 (1981).
Accordingly, I find that the Union had 17 valid signed
and dated union authorization cards at the time demand
was made on the Respondent.
3. Union's majority status
The parties stipulated that a unit appropriate for pur-
poses of collective bargaining is:
All service and parts department employees em-
ployed at the employer's Allentown, Pennsylvania
automobile dealership facility, excluding office cleri-
cal employees, car salesmen, guards and supervisors
as defined in the Act.
The parties further stipulated that the unit should in-
clude 24 employees with the following job classification:
mechanics, Cadillac parts assistant, new car get-ready
employees, used-car get-ready employees, apprentices,
helpers, warranty clerk, service cashier, and service advi-
sor. The parties were in dispute over 21 employees with
the following job classifications: Janitors (8), car porters
(4), service clerks (2), telephone operator (1), BMW
service manager (1), Cadillac shop foreman (1), Cadillac
parts manager (I), BMW parts manager (1), used-car get-
ready employees (1I), and body shop manager (I). Of
these 21 employees in dispute, I have included 7 janitors,
BMW service manager, Cadillac shop foreman, Cadillac
and BMW parts managers, body shop manager, and
used-car get-ready employee in the unit. Thus the unit
had 37 employees on the date of the Union's demand. I
excluded eight employees from the unit: one janitor, four
car porters, two service clerks, and one telephone opera-
tor.
Accordingly, on the date of the demand, the Union
represented 17 of 37 unit employees and did not repre-
sent a majority either then or any other time material
herein.
4. Applicability of a bargaining order
Having found that at no time material herein did the
Union represent a majority of the Respondent's employ-
ees in the stipulated unit, I will not recommend the im-
position of a bargaining order.
CONCI USIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Local Union 355 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent interfered with, coerced, and restrained
its employees in the exercise of the rights guaranteed
them by Section 7 of the Act, thereby committing unfair
labor practices prohibited by Section 8(a)(1) of the Act,
by:
(a) Coercively interrogating an employee concerning
his and other employees' union activities and sympathies.
(b) Soliciting grievances from employees to persuade
them to abandon the Union.
(c) Promising an employee increased benefits in order
to persuade him to abandon the Union.
(d) Soliciting employees to withdraw their union au-
thorization cards.
4. All service and parts department employees em-
ployed at the Employer's Allentown, Pennsylvania auto-
mobile dealership facility, excluding office clerical em-
ployees, car salesmen, guards and supervisors as defined
in the Act constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
5. The Union did not represent a majority of the em-
ployees in the above appropriate unit on January 17,
1980.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. Except as found above, the Respondent has not en-
gaged in other unfair labor practices as alleged.
THE REMEDY
Having found that the Company has engaged in and is
engaging in unfair labor practices, I shall recommend
that it be ordered to cease and desist therefrom and take
affirmative action necessary to effectuate the purposes of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eda
ORDER
The Respondent, Daniels Cadillac, Inc., Allentown,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their or other employees' union activities and sympathies.
(b) Soliciting grievances from employees to persuade
them to abandon the Union.
(c) Promising employees increased benefits in order to
persuade them to abandon the Union.
(d) Soliciting employees to withdraw their union au-
thorization cards.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under the Act.
x If no exceptions are filed as prosided by Sec 10246 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as prosided in Sec 10248 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Post at its Allentown, Pennsylvania facility copies
of the attached notice marked "Appendix."9 Copies of
said notice, on forms provided by the Regional Director
for Region 4, after being signed by Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply.
g 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that wt
violated the National Labor Relations Act and has or.
dered us to post and abide by this notice.
The Act gives employees these rights.
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To engage in activities together for the purpose
of collective bargaining or other mutual aid or pro-
tection
To refrain from the exercise of any or all such
activities.
WE WILL NOT coercively interrogate employees con-
cerning their and other employees' union activities and
sympathies.
WE WILL NOT solicit grievances from employees to
persuade them to abandon the Union.
WE WILL NOT promise employees increased benefits in
order to persuade them to abandon the Union.
WE WILL NOT solicit employees to withdraw their
union authorization cards.
DANIELS CADILLAC, INC.
484