Downtown ToyotaDownload PDFNational Labor Relations Board - Board DecisionsSep 30, 1985276 N.L.R.B. 999 (N.L.R.B. 1985) Copy Citation DOWNTOWN TOYOTA Lionel G . Sullivan and Ralph A . Fattore, a Partner- ship d/b/a Downtown Toyota and Automobile Salesmen's Union, Local 1095 , affiliated with United Food and Commercial Workers Union, AFL-CIO. Cases 32-CA-6022, 32-CA-6238, and 32-CA-6345 30 September 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 18 September 1984 Administrative Law Judge Burton Litvack issued the attached decision. The General Counsel, the Charging Party, and the Respondent each filed exceptions and a supporting 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, I and conclusions and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Lionel G. Sullivan and Ralph A. Fattore, a partnership d/b/a Downtown Toyota, Oakland, California, its offi- cers , agents , successors , and -assigns, shall take the action set forth in the Order, except that the at- tached notice is substituted for that of the adminis- trative law judge. i The General Counsel , the Charging Party, and the Respondent have excepted to some of the judge 's credibility findings The Board 's estab- lished policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We adopt the judge's finding that Patricia Sullivan acted as the Re- spondent 's agent within the meaning of Sec 2(13) of the Act, but solely on the basis that she summoned a meeting of the Respondent 's employees in November 1983 during the workday, while the Respondent 's facility remained open for business , with the acquiescence of management In the absence of exceptions, we adopt pro forma the judge's finding that George Holden acted on behalf of the Respondent Member Dennis adopts the latter finding without the "pro forma" reference 2 The judge failed to date the Respondent 's obligation to bargain with the Union We shall date the obligation from 1 November 1983, when the Union demanded recognition from the Respondent Tall Pines Inn, 268 NLRB 1392 (1984) In finding a bargaining order appropriate , Member Dennis relies on her concurring opinion in Regency Manor Nursing Home, 275 NLRB 1261 (1985) In setting forth the formula to be used in computing interest , the judge inadvertently failed to cite Florida Steel Corp, 231 NLRB 651 (1977) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 999 The National Labor Relations Board has found that we violated the National Labor Relations Act and has-ordered us to post and abide by this notice. WE WILL NOT discharge employees because we know or suspect they are engaging in union activi- ties. WE WILL NOT refuse to offer employment to ap- plicants because our employees are engaging in ac- tivities protected by Section 7 of the Act. WE WILL NOT coercively interrogate our em- ployees as to their own union membership, activi- ties, or sympathies or the union membership, activi- ties , or sympathies of their fellow employees. WE WILL NOT threaten our employees with un- specified reprisals or with the futility of organizing a union because they engaged in union activities. WE WILL NOT solicit or lend our support to the idea of employee petitions by which our employees would revoke their support for a union. WE WILL NOT Solicit our employees to go to a union and renounce their support for it. WE WILL NOT solicit grievances from our em- ployees and immediately implement changes in their terms and conditions of employment in re- sponse to those grievances when such is designed to induce employees from supporting a union. WE WILL NOT implement changes in our em- ployees' terms and conditions of employment in order to induce them to abandon support for a union. WE WILL NOT inform job applicants that they were denied rehire because of the protected Sec- tion 7 activities of our other employees. WE WILL NOT inform employees that engaging in union activities constitutes disloyalty to our high-level supervisors. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make Michael Heller and Robert Stokes whole for any earnings they might have lost as a result of their unlawful discharges, with inter- est. - WE WILL offer Michael Heller immediate em- ployment in his former position or, if that position no longer exists, in a substantially equivalent one, without prejudice to his seniority rights or any other rights or privileges of employment, and make him whole for any earnings he may have lost as a 276 NLRB No. 106 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD result of our unlawful refusal to reemploy, him, with interest. WE WILL expunge from our files any references to the unlawful discharges of Michael Heller and Robert Stokes and the unlawful refusal to rehire Heller and notify them, in writing, that such has been done and that our unlawful actions will not be used -as a basis for future personnel actions -against them. WE WILL, on request, recognize and bargain with Automobile Salesmen's Union, Local 1095, United Food and Commercial Workers Union, AFL-CIO as the exclusive representative for pur^ poses of collective bargaining of our employees in the following appropriate unit: All full-time and regular part-time automo- bile salesmen; excluding office -clerical employ- ees, finance and insurance managers, lot boys, parts - and lubrication employees, guards and supervisors as defined in the Act. - WE WILL bargain with the above-named labor organization with respect,. to rates .of pay, wages, hours, and other terms and conditions of employ- ment and, if an agreement is reached, embody such in 'a written, executed contract. National Labor Relations Act (the Act).' Respondent filed an answer, essentially denying the commission of any unfair labor practices At the trial of these matters, all parties were permitted to examine and cross-examine witnesses, to offer into the record relevant evidence, to argue their legal positions orally, and to, file posthearing briefs. Briefs were filed by the General Counsel and by counsel for Respondent. Accordingly, based on the entire record herein, including the posthearing briefs and my conclusions as to-the demeanor of the several wit- nesses, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a general partnership existing under the laws of the State of California, is engaged in the retail sale and servicing of automobiles and related products, with an office and place of business in Oakland, Califor- nia. During the 12-month period preceding the issuance of the consolidated amended complaint, Respondent, in the course and conduct of its business operations, de- rived gross revenues in excess of $500,000 and purchased and received goods or services valued in excess of $5,000 directly from suppliers located outside the State of Cali- fornia Respondent admits that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. LIONEL G. SULLIVAN AND RALPH A. FATTORE, A PARTNERSHIP D/B/A DOWNTOWN TOYOTA Racul Thorbourne, -Esq. and 'Michael L. Terris, Esq., of Oakland, California, for the General Counsel. Mark D. Jordan, Esq., of Santa Rosa, California, for the' Respondent. David Rosenfeld, Esq. (Van Bourg, Allen, Weinberg & Roger), of San Francisco, California, for the Charging Party. DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge. These matters were heard by me on May 22-24, 1984, in Oak- land, California. On April 20, 1984, the Acting Regional Director for Region 32 of the National Labor Relations Board -(the Board) issued a consolidated amended com- plaint, based on an original and a first amended unfair labor practice charge in Case 37-CA-6022, filed by Automobile Salesmen 's Union, Local 1095, affiliated with United Food and Commercial Workers Union, AFL- CIO (the Union), on November 2 and 14, 1983, respec- tively; an unfair labor practice charge in Case 32-CA- 6238 filed by the Union on February 3, 1984; and an unfair labor practice charge in Case 32-CA-6345 filed by the Union on March 20, 1984, alleging that Lionel G. Sullivan and Ralph A. Fattore, a Partnership d/b/a Downtown Toyota (Respondent), engaged in acts and conduct violative of Section 8(a)(1), (3), and (-5) of the II. LABOR ORGANIZATION Respondent admits that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. ISSUES 1. Did Respondent violate Section 8(a)(1) and, (3) of the Act by, about October 31, 1983,2 terminating em- ployees Michael Heller, Robert Stokes, and Frank Shee- han? 2. Did Respondent violate Section 8(a)(1) and (3) of the Act by, about November 23, following his reinstate- ment on November 5 and his voluntary resignation on November 8, refusing to rehire Heller? . 3. Did Respondent violate Section 8(a)(1) and (3) of the Act by, December 2, discharging employee John Hardenberg? , 4. Did Respondent, through several alleged supervi- sors and/or agents, violate Section 8(a)(1) of the Act about October and November by the following acts and conduct: a. Interrogating an employee about union activities and threatening reprisals if employees selected the Union as their representative. b. Stating to a job applicant that it did not -want and would not have a union at its facility. c. Stating to an employee that he was fired because of his union activity. i At the hearing, the General Counsel was permitted to amend the consolidated amended complaint, alleging an additional violation of Sec. 8(a)(1) of the Act 2 Unless otherwise indicated , all events herein occurred in 1983 DOWNTOWN TOYOTA 1001 d. Interrogating an employee about his union activities, impliedly promising to remedy employee complaints in order to undermine the Union, suggesting to an employ- ee that he circulate a petition among Respondent's sales- men so that they withdraw their support from the Union and drafting proposed language for same , and giving the impression,of the futility of organizing by employees. e. Threatening an employee with the loss of lease sales if the'facility were to unionize- f. Telling an alleged discriminatee that he could not be reemployed by Respondent at its facility until "the situa- tion with the Union" was resolved. g. Asking an employee to resign because of his union activities. - h. Stating to employees that they should not have "gone behind my back," but rather have spoken to Re- spondent before going to the Union. i. Interrogating employees about their union activities. 5. Did Respondent violate Section 8(a)(1) and (5) of the Act about November and December 1983 by refus- ing to recognize and bargain with the Union as the ex- clusive bargaining representative of its automobile sales- men; by.bypassing the Union and dealing directly with employees by soliciting their complaints and acting on same ; and by unilaterally, without affording the Union an opportunity to bargain regarding same , changing em- ployee benefits? IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The record establishes that Lionel G. Sullivan3 and Ralph A. Fattore are partners and coowners of an entity known as Downtown Auto Center and that under that umbrella are partners and coowners of five new-car and two used-car dealerships in Oakland, California. The five new-car' dealerships (Downtown Toyota, Merit Pontiac, Downtown Subaru, Downtown Saab, and Downtown GMC) are housed at three facilities, with Respondent and Downtown Subaru at separate locations. Fattore acts as the general manager for all the dealerships and has an office at the Merit Pontiac facility. With regard to Respondent, it is comprised of a new-car showroom, at which Toyota automobiles are sold; a service depart- ment; a parts department; and a used-car lot, which is lo- cated across the street from the new-car showroom and at which. Toyota and other cars are sold. Anthony Caruso is the Toyota sales manager and, at all times ma- terial, George Holden was the used-car manager.'' The 3 Sullivan owns several other businesses, including automobile dealer- ships One such dealership, at- which Datsun and Chrysler automobiles are sold, is located in Hayward, Califorma, which is located approximate- ly 20 miles from Oakland Sullivan apparently spends most of his work- ing times at this Hayward facility Respondent admits the supervisory and agency status of Caruso, Fat- tore, and Sullivan George Holden was-responsible for appraising used- cars and setting the sales prices for used-cars Also, he possessed author- ity to approve deals for these vehicles and could overrule Caruso in such matters His office was at the Subaru location , and he was perceived by employees as representing management Based on the foregoing and as he apparently utilized independent judgment in performing his duties, I find Holden to be a representative of management O'Connor Chevrolet-Butck- GMC Co, 209 NLRB 701 (1984) Further, given his position and author- ity, I believe employees could reasonably believe he spoke and acted on record further establishes that the five new-car and two used-car dealerships, which comprised Downtown Auto Center, had several close operational links. Thus, Patricia Sullivan, the daughter of Lionel G. Sullivan, is in charge of lease operations for all the dealerships; common meet- ings for the salesmen at all the locations were regularly conducted by Fattore-usually on Saturday mornings at Merit Pontiac; all salesmen have similar terms and condi- tions of employment; employees of one dealership may attempt to sell automobiles of another dealership; and salesmen of one dealership who suggest the purpose of, an automobile from one of the other dealerships share the commission of such a sale. Finally, the record also establishes that, at the end of October, seven new-car salesmen (Michael Heller, Richard Heller, Celso Da- Silva,' Daniel Pope, Sherman Rothman, Robert Stokes, and Frank Sheehan) and, one used-car salesman (John Hardenberg) worked for Respondent. - The record discloses that the genesis of the union ac- tivity at Respondent's facility occurred in October, with employees complaining among themselves regarding their hours, the qualifying standard for inclusion in Re- spondent's bonus program, Fattore's continual verbal abuse of Stokes,5 and other matters. During these discus- sions, Michael Heller, who was a member of the Union, suggested the Union as a solution to their problems but nothing definite in that regard was undertaken. s Then, on Saturday, October 29; one of the regular meetings of the Downtown Auto Center salesmen was held at Merit Pontiac. Fattore conducted the meeting, and after talking about advertising and sales, "he brought up . .•. how much we're paying for our demos."7 The cost to the salesmen had been 1 percent of the factory invoice price; at the meeting, Fattore announced a new fee of $125 per vehicle, irregardless of the car's price, "because that's easier for the computer to figure out." According to Mi- chael Heller , several salesmen voiced objections to this change of'policy as the standard fee amount conceivably could exceed the prior 1 percent of invoice price; how- ever, Fattore refused to reconsider the policy change. Also,- Heller testified, Fattore "harangued" Robert Stokes, using "a lot of different words to describe him and to make him feel like he's nothing."8 The announced demo fee' change,9 along with their previously perceived behalf of management, expressing its views . Therefore, I also find him to be Respondent's agent within the meaning of Sec 2 ( 13) of the Act 5 Although Stokes faded to - testify , Frank Sheehan testified that Fat- tore continually made "derogatory" remarks-about Stokes' appearance, work habits , lateness, and use of alcohol "on and off ' for a period of time e Heller testified that during October he did speak to a union official, Richard Salvaressa , approximately four times regarding the "problems that the men were having," but no actual organizing was accomplished at that time T Each salesman is given a new car or truck (usually one of the lower priced models) to use for his personal driving. These are considered by the dealership to be demonstration vehicles (demos) and, due to the mile- age, are sold for less than the normal new -car puce 8 Among other things, according to Heller, Fattore called Stokes an alcoholic. Fattore did not-deny this ° Respondent's salesmen are paid commission for their sales, and if two or more share a sale , the commission is divided between them. Also, twice each month, salesmen are ' paid what is termed a "draw" against Continued 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD problems, caused the Downtown Toyota salesmen much anguish that day and the next. -According to Heller, sometime on Sunday, he suggested to several that they meet after work and discuss union representation as a so- lution to their problems, and a meeting was quickly ar- ranged to be held that evening at Celso DaSilva's home in Oakland. Almost all the salesmen, including the four alleged discriminatees, attended this meeting; the result' was a decision to go to the Union's office the next morn- ing, as a group, and to seek representation. Thereupon, the following day at 8 a.m., Michael Heller, Richard Heller, Dan Pope, Sherman Rothman, Frank Sheehan, Celso DaSilva, and Robert Stokes met at the Union's office in San Leandro, California. Eventually, they spoke to Richard Salvaressa, the secretary-treasurer, and Ferdi- nand Silva, the president, in a conference room. Michael Heller testified, "We talked about what we felt we needed and they . . . said that they could represent us and if we would sign pledge cards, they would represent us." According to Ferdinand Silva, he proceeded to dis- tribute authorization cards to each of the salesmen and read the card's contents to them. Next, each person exe- cuted a card and returned it to Silva. The latter denied that the subject of a possible NLRB election was dis- cussed prior to the execution of the cards but admitted that at the conclusion of the meeting, as the salesmen were leaving the room, there was a short discussion re- garding the filing of an election petition . 10 As they left the Union's office, Stokes and Michael Heller discussed distributing authorization cards to other Downtown Auto Center salespeople . As a result, between 9:30 and 10 a.m., Heller_ went to , the Merit Pontiac facility and spoke to Joan Ramsey,. a recently hired salesperson. "The conversation had to do with joining a union, sign- ing authorization cards"; Ramsey expressed no interest in the idea. According to Heller, Stokes was also at that fa- cility, soliciting for union representation. Michael Heller testified that he returned to the Merit Pontiac facility approximately 1 hour later on some dealer,trade matters and that while there, Fattore noticed him and called Heller into his office. They were alone, and Fattore began, asking "Mike, what's going on?" I said, "What do you mean?" He said, "Tell me what's going on? I know . . ." I said, "Oh; you know we've all been to the Union." And he says, "Well, who instigated this? Was it Frank?" I says, "No, it was all of-us. We all went together. We all signed up together " And he says, "Well, you know you guys aren't going to win. This is ridiculous and it's only going to hurt you guys, it's going to hurt the stores, and it's going to hurt Tony. If necessary, I'll make more money and you guys will make less." And I concluded by what they earn from commissions If-the latter exceeds the monthly draw, the draw, approximately $800, is subtracted from the total commis- sion checks to John Hardenberg did not attend the meeting at the Union's office that morning, however, shortly before 9 am, he executed an authoriza- tion card, given to him by Robert Stokes The parties stipulated-to the authenticity of the authorization cards, and there is no dispute as to that issue - saying , "Look, you know , we'll get everything squared away and let 's try to get the lines of com- munication open and I think we can get everything resolved." At that point, Heller l i left Fattore's office and returned to work. The latter did not specifically deny either the occurrence or substance of this conversation. John Har- denberg testified to a similar instance of interrogation. According to him, between noon and 1 p.m., while he was working in the used-car area, he received a tele- phone call from Used-Car Manager George Holden, who asked, "What the f-k's going on down there? Who's in- volved with this union? Are you involved? Do you know anything that's going on down there?" Hardenberg answered "no" to everything, and Holden continued, "Is- Bob Stokes the instigator or does Mike Heller have any- thing to do with it?" Again, Hardenberg answered in the negative, and Holden concluded, asking about the extent of his ' involvement. Hardenberg replied, "That's all across the street." Holden was not called as a witness by Respondent. Hardenberg testified further that at approxi- mately 1:30 p.m. Stokes crossed the street to the used-car area in order to speak to him. Moments' later, Patricia Sullivan12 drove up, parked her car in front of the used- car lot, noticed Stokes and yelled that he was a "f-king asshole," and crossed the street to the new-car show- room. According to Hardenberg, Stokes started after her, but Hardenberg restrained him. Sullivan did not deny making such a comment. On October 31, between 1 and 3 p.m., Respondent ter- minated Frank Sheehan, Michael Heller, and Robert Stokes. Sheehan testified that, at approximately 1.30 p.m. that day, Caruso called him into his office. They were alone, and Caruso said, "Frank, I'm going to let you go," and he gave as a reason "that I took,upon too many management functions for myself "13 Caruso' s testimoni- al version of the discharge conversation substantially dif- fers from that of Sheehan. Placing the conversation early that' morning, Caruso asked Sheehan to come to his office and told him, "Frank, it just isn't going to happen. I'm going to have to let you go." Sheehan thanked him 11 Heller believed that Fattore's reference to "Frank" was to Frank Sheehan 12 The General Counsel argues that at all times material Patricia Sulli- van acted as Respondent 's agent As stated above, she is the daughter of Lionel Sullivan, a fact known to all the sales personnel of Downtown Auto Center, and is responsible for lease sales at all the dealerships She described this job as closing the sales and arranging for financing, and denied any greater authority over such matters Thus, in closing a lease sale at Respondent's facility, according to Patricia, she advises Tony Caruso as to whether the buyer can be financed and "He decides wheth- er or not we take the gross " For performing the leasing sales work, Pa- tricia is paid on a commission basis Heller and Sherman Rothman cor- roborated Patricia Sullivan in this regard, both testifying that she deter- mines whether potential lease customers can be financed and, makes the first sale decision "in concert" with Caruso However, Michael Heller- testified that, unlike the new - and used-car salespeople , Patricia has access to Respondent's safe and has keys to the facility She did not deny either alleged indicia of the extent of her authority is Sheehan testified that in July Caruso spoke to him about doing some act beyond the extent of his authority but, thereafter, never raised the subject again During cross -examination , Caruso admitted that on two or three occasions , he said to Sheehan "Stop sales managing your own deals " He denied raising the subject at the time of Sheehan's termination DOWNTOWN TOYOTA 1003 and left the office, but worked the remainder of the day. Michael Heller testified that at approximately 2 p.m. Caruso asked him to come to his office. Heller' did and discovered that Fattore was waiting for him.-"Ralph says that we, got a- lot of heat on the DMV on this deal. The deal being a customer by- the name of Friedman . we've come to the- end and I've got to terminate you I looked at him and I said; You've got to be kid- ding me.'This is ridiculous." Heller then asked what was going on, Fattore replied, "I've had enough and this is it and I'm, going to let you go." Heller replied that there was no reason for the discharge and warned Fattore of his potential monetary liability for the discharge. Fattore then told Heller that he would receive whatever money he was owed, and, the meeting ended. Fattore, whose version of the conversation is similar to that of Heller, placed its occurrence closer to 3 p.m., and "I told Mr. Heller that that day was going to be his last, and I was not going to put up'with any more DMV heat." Robert Stokes did not appear and testify in his own behalf at the hearing. Regarding what was said to him at the time of discharge, Fattore testified that he and Stokes spoke in Caruso's office, "I told Bob we couldn't tolerate his being' late and not showing up, drinking on the job " John Hardenberg testified that at approximately 3 p.m.' Stokes informed him that he had just been fired. Respondent 'contends that the'three terminations were precipitated by reasons other than in whatever union ac- tivities `Heller, Sheehan, or Stokes may have engaged prior to their respective discharges, that said terminations had been contemplated prior to'October 31, and that it had no knowledge of its employees' union activities prior to the discharges. With regard to the latter point, Ralph Fattore testified that he first became aware of union or- ganizing 'at Respondent's facility 3 hours after Heller's termination, at 6 p.m., when Joan• Ramsey approached him at Merit Pontiac and said she thought he had a-prob- lem at Downtown Toyota. Fattore replied that he had just terminated a couple of guys. Ramsey responded that .it was not that; rather, "I've heard they're talking about going union ." Ramsey ended by saying, "You'd better get involved and take a look at this." 14 Later that evening, -according to Fattore, he walked across the street'to Downtown Auto-Center's other used-car lot and met two employees, Gus Colson,, a 'salesman, and Matt Grunke. Fattore began, asking "had they heard anything about any kind of union activity going on." Colson replied that he had but was not interested; Grunke,replied that Bob Stokes had told him they were trying to organize and wanted us involved, also. Fattore further testified that the next day, Tuesday, November 1, "around 11 o'clock," Patricia Sullivan approached him at the Merit Pontiac facility and said that a union was at- tempting to organize at Downtown Toyota. Stating that he was awaiting the arrival of Lionel Sullivan, who had been away and was scheduled to return that morning, in order to discuss the situation with him, Fattore merely said OK to Patricia. He denied that she mentioned any name to him. is Fattore was certain no names were mentioned by the normally "close mouthed" Ramsey - Patricia Sullivan testified that she_ first' learned of the _ Downtown Toyota salesmen 's' union activities from, two salespersons, Craig Perry and' Joan Ramsey, ,who were waiting in her office at Merit Pontiac. She had just ar- rived from a' doctor' s appointment , and they "said that' Mike Heller had contacted them about joining the union and they were upset because . . . [of it]."- According to Sullivan, within the next' hour- she reported on the con- versation to Fattore and Tony Caruso. As to Fattore, "It was the first I heard of it too, and I said that Joan and Craig had come in and told me Michael had called them." Testifying that she reported the same information. to Caruso, she also admitted telling him that Ramsey told her "that all the Toyota salespeople had a meeting at Celso's home Sunday night." Placing the conversation with Perry and Ramsey at 11 a.m. on the day before a- luncheon meeting with Michael Heller, Patricia was, unsure whether•the lunch occurred on Tuesday, Novem- ber 1, 15 or Wednesday, November 2. Tony Caruso testi- fied that he first learned of the union organizing cam- paign on Tuesday, November 1, at 11:30 a.m. or 12 p.m. when Patricia Sullivan called and asked if he-had heard anything about "the boys" signing union !cards. He con- tinued, stating that she ended, the conversation by saying, "Well, you'd better look into:it." Denying that these last words constituted any sort -of directive; 'Caruso later twice changed his original version of Patricia's last words to, "She said, `Are you going to look into it?"' and to "And then she said, .`Well let's look into it."' Moreover, Caruso admitted that the import of Cher words meant he ought to look into ,the matter and that he did so- "I sure did." 1 6 - Finally with regard, to exactly- when Respondent became aware of the union activities of its salesmen, we have the testimonies of Dan Pope and Brenda Brown. The_.latter, who worked at Respondent's facility substi= tuting for Finance Manager Gerhart Geiblinger on the latter's days off (every - Wednesday and- every other Sunday), 17 testified that on one occasion John Harden- 15 -^ ,1 - - Michael Heller testified that immediately after being terminated by Fattore on October 31 he walked back to his desk and observed Patricia Sullivan standing nearby . He beckoned her-over and asked if she was aware of what was going on. She said , yes, and Heller said it was all "crazy ." Sullivan responded, "Well, you didn 't have to make all of those phone calls " Heller averred that it-had been 'nice working there, and Pa- tricia said she was sorry it had to end that way . The latter did not specif- ically deny this testimony . 18 Caruso admitted that dung that week he questioned all the Down- town Toyota salesmen , asking , "What are you unhappy about"" 17 The nature of her relationship to Respondent is rather difficult to comprehend. Her-testimony was uncontroverted that having performed the same service for Geiblinger at-another unrelated dealership , he asked her, in September or October, if she would like to have the same ar- rangement at Respondent's facility-substituting for him on his days off. Denying that she was ever interviewed for her job by' Respondent, Brown accepted Geiblmger's offer. She testified that Geiblinger intro- duced her to Caruso , "and he had told Tony that I was going to be help- - ing Gerhart and I would cover for him on his days off And that was the understanding " Brown further denied being employed by Respondent, stating that she worked for Geibliger . In this regard , the record reveals that she was paid for her services by Geiblmger in the form of twice monthly $600 draw checks, with such amounts subtracted from whatever commission she earned from . her sale of "market items," such as extended warranties and burglar alarms, to customers . She testified , "If I would Continued 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. berg spoke to her in the finance office and mentioned "that he was going to have a meeting at Celso da Silva's [sic] house." Asked to be more specific, she said, "He was just talking about they were going to have a meeting that was going to be held at Celso's house and that it was to be regarding a union." Elaborating further, Brown recalled that .the conversation was on a Wednes- day, i s and Hardenberg "was just talking about Danny Pope and Celso da Silva [sic] and that they were going to have . . . a union meeting . And they were all going to be there and try and pull the union in the store." After initially denying telling anyone what Hardenberg told. her, Brown admitted informing Fattore and Geib- linger. Asked how long after Hardenberg spoke to her did she speak to Fattore, Brown answered, "It might even have been that same evening or it could have been a week later." She'continued, stating that she told Fat- tore at a bar on the same street as Respondent's facility. He asked her how her day went and she reported what happened. Brown testified • that she usually told him about, any unusual things that occurred in the finance office during the day and that she considered what Har- denberg said important enough for Fattore 19 to know. As to what she said to Fattore, Brown recalled telling him that there was going to be a meeting at DaSilva's house "but he had already known about it . . . : Some- one else had told him and he wouldn't tell me who had told him." Regarding Geiblinger, Brown admitted telling him what Hardenberg said-that same day--"He used to call me when he wasn't working to see how things were going," and she told him "that they were talking about having a union meeting at Celso's house." As to Dan Pope, he testified that it was obvious Respondent knew about the card signing on October 31 as later that same sell them while I was there, he would give me a percentage "f.what he made off of them " Brown explained that Geiblinger was paid by Re- spondent the commission on her sales "and then he would give me a part of it " While she apparently participated in no Respondent employee ben- efits, Brown, on her own volition, had printed business cards, which she kept on top of the finance office desk, which cards identified her as Re- spondent 's assistant finance manager As to the nature of her work , Brown stated that as finance manager Geiblinger would get the papers after the deal had been agreed on by Caruso and the customer , -and he would contract the deal and put the figures in the machine " Averring that she performed exactly the same work same work , Brown described what she did as follows "And I would put the figures in the machine and roll the contract through and rip off a part of the credit ap [sic] and send it to the Telefax machine and sign the customers up " Also, she would attempt to sell the above-de- scribed extra market items and have the customer sign the required De- partment of Motor Vehicles documents Brown admitted that the sale was not final until she did her work , that she was required to possess a salesman 's license to do her work, and that Respondent was ultimately responsible for her actions in selling the market items, as such are includ- ed in the cost of the car - Regarding the extent of Brenda Brown 's authority over the sale of a vehicle, Sherman Rothman testified that salesmen could not, on their own approve a deal and that on two occasions , Brown was the only person in the facility whom "I could take a deal to" who could approve it On one occasion , in particular , Brown checked the customer 's credit- and decided the car could be delivered- "She okayed the deal and I believe the car was rolled " i8 Brown stated that this conversation occurred 2 to 4 weeks prior to an occasion in the "first part of December" while Hardenberg was still working as a salesman , when she drove him 'to a restaurant in Oakland in order to have a drink after work. - 19 Brown maintained that she did not know Fattore "that well " morning he saw Patricia Sullivan at the dealership be- tween -11 a.m. and 12 p.m., and she "asked if there was any truth to some rumors about some union activity." As to the termination of Frank Sheehan, Respondent's explanation for such was the salesman's "lack of produc- tion." At the outset, Sheehan had been employed by Re- spondent since March 22. Respondent's salesmen's com- mission and salaries reports for- Sheehan for the. time period March through September, General Counsel's Ex- hibits 20-26 reveal that he sold the following numbers of cars,20 for which he received commissions based on said sales: March-4 cars sold Apnl-8-1/2 cars sold May-11-1/2 cars sold June-10-1/2 cars sold July-20-1/2 cars sold August-10-1/2 cars sold September-2 cars sold2t Sales Manager Caruso testified, during direct examina- tion, that upon reconciling the commission vouchers at the end of September, he noticed that Sheehan had sold just one car that month and decided to speak to him about that. He called Sheehan to-his dealership office, "and I said , Frank, you've got to do better, that was it." -Sheehan replied that "he would try.to do better, that he really wanted to stay there, that he would really give his effort in the following month." Caruso testified further that just 55 cars were sold by Respondent in September but that, notwithstanding a substantial increase in sales in October, Sheehan had sold just two,cars by the middle of the month. According to Caruso, who was aware of Sheehan's sales figures when he gave Sheehan. a draw check on October 15, he said to Sheehan, "I told him that he's no better off at-this point in the month than he was in the month of September, that he's got : .. capa- bility of doing better, and he'd better get on the ball or we're going to end our relationship, if something don't change." Sheehan said that he would _ try to improve. Notwithstanding this warning, Caruso had not yet decid- ed to discharge Sheehan-"Not as of the 15th, no." Sherman Rothman testified that he was interviewed for a salesman 's position by Caruso in "probably the first week in October, between the 1st and the 7th of Octo- ber," and that Caruso mentioned vacancies- "He indi- 20 The total sales figure for any month is a combination of vehicles which Sheehan sold by himself and vehicles in which he shared the sale and the commission 21 During cross-examination, utilizing a logbook, in which he notes every sale of a vehicle, Caruso credited Sheehan with far fewer sales than 'indicated by Respondent's payroll records His asserted monthly sales figures for Sheehan for the same time period are as follows - March-3 sales April-4-1/2 sales May-9 sales - - June-5-1/2 sales July-12 sales August-3 sales September-1 sale Testifying on surrebuttal, Caruso denied attempting to deceive the record, averring that he probably skipped a page in giving his original testimony DOWNTOWN TOYOTA 1005 cated that he was planning to let one of his salesmen go.'t Asked if the sales manager specified which one, Rothman said, "Frank Sheehan." Caruso confirmed that he did say this to Rothman and testified that he also said he was going to keep Sheehan the entire month to enable him to earn some money. Contrary to Rothman, Caruso placed this conversation on either October 16 or 17, said he conclusively decided to terminate Sheehan on "the day' I hired Sherman," and said he decided to do so as, in the 1- or 2-day period following his talk with Shee- han, 'he still didn't do anything.-I thought he had more cars out than what he did, and I thought he could get some."22 Sheehan sold just one more car, for a total of three sales that month' 23 and on October 31 Caruso ter- minated him as described above. During his cross-examination ,- Caruso utterly changed, the foregoing time sequence Thus, asked if between Oc- tober 15 and 31 he had made up his mind to fire Shee- han, the sales manager said, "At that point all I wanted to do was try to salvage him." As-to what he said to Rothman, Caruso now testified that he told the new hire he was only "pretty sure" he would have to let one salesman go and admitted that he was "not 100 percent" sure he would terminate Sheehan. Then, when did he make the final decision as to discharge? Caruso respond- ed that he decided on this action "the day before" Shee- han was fired-October 30-"He didn't have ambition, didn't have no goals, he didn't have no attitude. That's what he didn't have." Later, 'dung cross-examination, Caruso further contradicted himself on the decision- making time sequence. Testifying that, while making the decision himself, he told Fattore about his decision to terminate Sheehan, Caruso placed this conversation 2 days before the discharge. Fattore testified that Caruso discussed terminating Sheehan with him during "the last couple days of October" and that Caruso said Sheehan was `just not getting the job done."24 During rebuttal, Sheehan admitted poor sales for Sep- tember and October, not controverting Caruso's sales fig- ures for the latter month but denied conversations with Caruso and Fattore in either month regarding his lack of productivity. Regarding September, Sheehan stated, "We were out of new Toyota passenger cars." Also, "We were all given a week off . . . as there was so little mer- chandise 'around anywhere in Toyota that' everybody was given extra time off' Rothman corroborated this sit- 22 Caruso testified to another conversation with Sheehan , the timing of which is unclear in the record Noticing that Sheehan seemed not to be even approaching customers , Caruso called him to his office and said, "Frank, you're not selling any cars, and you know that you've only got a couple of weeks left Something 's wrong If you can't sit down and tell me about it, then I don 't know how to help you . Everyone's selling cars around you Why aren't you selling any cars?" Sheehan an- swered , "Tony, I feel very uncomfortable " 23 In addition to his three October sales (cars actually delivered, Shee- han hid consummated two November sales (cars to be delivered in No- vember) - ,24 Fattore testified that he himself spoke to Sheehan, regarding his productivity in late September while handing him a "draw" check, saying , "Frank, you'd better get on the ball." Fattore added that in Octo- ber he discussed "cleaning house" with Caruso because "we only have room for the best " While Sheehan was mentioned at the time , Caruso "didn 't say he wanted to terminate him.' He said he wasn't doing the job in September " Caruso did not corroborate the above uation in September, saying it is a "disastrous" month be- cause the factory closes for a month and "there's no cars to deliver." He added that it is extremely difficult to sell a car-if none exists to exhibit. Sheehan further testified that this situation continued in October and blamed his inability to sell in October on the fact that "our cars were arriving at the very end-of the month" and he was attempting to sell "off of the inventory printout list.. . . We had nothing to show except pictures in brochures until about the 22nd of October." Respondent's evidence regarding the rationale for the termination of Robert Stokes is found in the testimony of Ralph Fattore. According' to him, the problems which precipitated Stokes' termination existed throughout his 10 months of employment with Respondent, but "they started getting more severe in the summertime." Fattore testified that Stokes had 'previously been fired and re- hired by' Respondent on two occasions in June or July25 "because Bob was not showing up, missing days, getting drunk, drinking on the job, but he was the kind of guy you couldn't help but like. So we probably cut him more slack than anybody else in the dealership." Fattore testi- fied further that the decision to terminate Stokes perma- nently was made by him "right around the time that the decision was made to terminate Michael Heller . . . be- cause it was about time to start cleaning house. There were too many problems." Fattore added that the rea- sons were similar to before, "He was not showing up-at work, coming in late" and , although the discharge deci- sion was reached earlier , he did not inform Stokes until October 31 "to let him finish off the month" and because Stokes "was kind of a live wire." During cross-examina- tion, Fattore recalled having made the discharge decision "between the 15th and 20th, he was missing some more time from work, had liquor on his breath " Finally, Fat- tore admitted that Stokes was a good salesman but as- serted that his discharge had nothing to do with that. With regard to the discharge of Michael Heller on Oc- tober 31, there is no dispute that he was involved in a controversy concerning admitted promises that he made while selling a car and that said promise's had been the subject of a Department, of Motor Vehicles (DMV) in- vestigation . According to Heller, in late April he sold a Toyota Tercel, which had to be obtained from another Toyota dealership, to a woman named Elizabeth Fried- man, and while attempting to induce her to purchase the automobile, he promised26 to provide her at his expense 25 Fattore admitted that Caruso had been the one who handled the previous discipline of Stokes and that he was not involved However, Fattore stated that he personally had spoken to Stokes "a number of times" about "being late" and other matters He further stated that he had personal knowledge that Stokes missed work on occasion after drink- ing alcoholic beverages the night before and that on occasion he smelled alcohol on Stokes' breath during work hours Dan Pope corroborated Fattore on the firing and rehiring of Stokes- likening the latter 's situation to a "revolving door," Pope stated , "He was in and out quite a few times." Pope also stated that Stokes had a drinking problem which resulted in his being absent from work for periods of time. 2e Heller was quite candid about making promises to customers in order to induce sales. Noting that commissions and bonuses are predicat- ed on car sales, he stated that "this is my incentive , and believe me it's tax deductible " - 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with a cargo cover27 and mud flaps. He set forth this promise in writing on the back of a business card,28 which he gave to the woman at the time of the sale. A day or so, later, Friedman returned and demanded a rear window wiper. Heller' went to Fattore, and they ex- plained.to the woman that the car's equipment had been read to her before she purchased the car and no .wiper. was listed, that installation of such was very expensive, and that Respondent would not provide it for her at cost. Two weeks' later, the parts manager informed Heller that the cargo cover had arrived; he telephoned Friedman and' told her to come in for it. Subsequently, he testified, the parts manager approached him and said Friedman ' was not satisfied with the vinyl style cover which had been ordered. Asked what they should do, Heller responded that "she's got to take whatever we or- dered." Heller further' testified that this was the last he heard about Friedman until' Patricia T. Denny, a special investigator for the DMV, came to the facility sometime between the end of September and mid-October, showed him the business card containing the above promise, and asked • if_ such was his handwriting. He admitted it, and Denny told Heller that there .was a dispute over the cargo cover, and. she was-verifying the promise. Accord- ing to Heller, he told her "as 'far as I know she got them." Stating that . he never had any further contact with the DMV 'over the :cover, he immediately tele- phoned Fattore after Denny left; "Ralph said : . . there's a problem." Later that day, . Fattore came to Respond- ent's facility, and Heller ;explained what had 'happened and what was involved. " I said , let's pick out an uphol- stery shop right here on Broadway and let's get [the cargo cover] made. He said, fine." Asked who would pay, Heller answered, "I am sure I told him. I reiterated I would pay , for , it." Thereupon,'. they discussed uphol- stery shops; Fattore gave Heller the name of, a shop; 27 Heller stated that prior to commenting on the •"tonneau" cover to the woman , he discussed it with Louie , the parts manager-"I investigat- ed all this before I committed it to her " He added that both the cover and the mud flaps had been ordered by Louie on the day of sale and that he told Elizabeth 'Fnedman they could provide her with a certain style 28 The record establishes that a "due bill" is a document , signed by the customer and the sales manager , in which work promised to a customer at the time , of sale- is noted This includes full gasoline tanks, radios, alarms; tonneau coers, roof rags , and air-conditioning-"' - anything that might be sold on the car that ... had to be charged against the deal" The. due bill serves two purposes , to enable the parts department to obtain the promised item and to give the customer a record of any promises made in `order to establish the proof of such Further , according to Fattore , even if the salesman agrees to'pay the cost of the promised item , a standard practice ; a due bill -is utilized and the cost and method of payment so noted , "and [the cost] becomes a receivable . from the salesman ," to be deducted from whatever commission is owed him. Both Fattore and Caruso insisted that "the' house policy , anything a customer is promised is, put on a' due bill ." Heller admitted that in expressing his commitmenCto provide and to pay for a luggage cover and mud flaps on the back of a: business card , he was not conforming to Respondent's normal practice. ("Anything you promise a customer technically should , .be on-a due bill .") Sayin g that he did `not utilize a due bill for his prom- ises to Fnedman , Heller gave as, a reason , "I didn't want [Caruso] to know about it at that point" In any event , according to -Heller , he often -made promises to customers (and.m so doing , bypassing a. due bill), and Caruso was well aware of his practice However , Heller was unable to give any specifics Caruso , when asked whether he was aware of such practices by Respondent's salesmen , answered , "I am cleaning up all of them all of the time That 's a very , sore subject." He admitted that such promises are made regularly, normally covering mirrors and floormats. Heller telephoned it and made an appointment for Fried- man, and. he informed her about it. He concluded, stating that all this was a few days before his discharge and that Friedman's appointment was for later in the week of his termination. Heller had no knowledge as to whether there had been a resolution of the dispute between the DMV and Respondent at the time of his discharge. - Ralph Fattore testified that -he made the, decision to terminate Heller "between the 6th of October and about the 20th, at the latest" and that "the final problem was a DMV problem with- an Elizabeth Friedman.",According to him, • shortly after the woman purchased her car, she began complaining that she was 'entitled to a rear wiper; he checked the sale file, saw that nothing about such an item was in the file, and refused to install one. Friedman contacted' the DMV and, Fattore testified,-, Patricia Denny came to the Toyota facility in -early, September, showing Fattore a complaint Friedman had filed over the wiper. Fattore investigated and concluded that no such item had been promised. Then, Fattore further testi- fied, between October 6 and 20, Denny again contacted him, reporting she felt that the customer did not have the rear wiper coming but added, "Would you believe that there's been other promises by Mike Heller to Mrs. Friedman." Denny. reported on • a visit ,to the facility during which Heller admitted that it was his signature on a business card on which a cargo cover and mud flaps enny that Respondentwere promised. • Fattore told Den y' would "back up" any written promise. Subsequently a DMV agent showed Fattore the business card containing Heller's admitted "I.O.U.," and Fattore stated that he made the discharge decision "at the time that the DMV brought me a copy of [the business card] because they were reopening the file for misrepresentation."29 Fattore averred that he could not tolerate further such an inves- tigation because "selling Toyotas is too easy, and I just won't tolerate that kind of stuff. It's. my license, my live- lihood."30 He added that there was nothing in the We file to establish that Heller had followed up on his writ- ten promise, nor did the DMV believe that such was the case, and that had Heller utilized a due bill, as required, there could not have been any issue of misrepresentation. Asked why he waited -10-12 days before terminating Heller, Fattore answered, "I kind of liked Michael per- sonally. We had a picnic a month earlier, and.he:did all the cooking and stuff. I wanted to give him an opportu- nity, to make his qualifier."3 i Finally, Fattore testified that-Respondent receives "a couple complaints a month, DMV" and that he has fired others for. DMV com- plaints-but gave no examples. Patricia Sullivan testified regarding the seriousness of DMV complaints, stating that "customers do that all the time" and that such prob- lems "blow over in a couple of months .... That's the way it always is . . . . We hire people back all the time." ' 29 Fattore stated that he had Caruso check the file for a due bill, cov- ering the mud flaps and the cargo cover and that none was found. a° The DMV is authorized to suspend the license to sell automobiles. si Fattore believed that during this period the case was still under in- vestigation ; however, he admitted having no discussions with Denny. -DOWNTOWN TOYOTA - - 1007 On Tuesday, November 1, the day following the sign- ing of the authorization cards and the subsequent termi- nations of three salesmen, Union President Silva deliv- ered a letter, which demanded recognition of the Union as the collective-bargaining representative of the motor vehicle salespersons on the basis of the signed cards, to Respondent's facility. Michael Heller testified that he re- turned to the store that morning to take care of some business and was told by Caruso that Patricia Sullivan wanted to see him and he should call her.32 Heller did so, and "she said . . . she would pick me up at Biff's . .. because she didn't want to pick me up at the store." She invited him to have lunch,33 and they decided on Gallagher's restaurant. At the restaurant, they ate lunch and spoke for approximately an hour "about the issues the salesmen had." According to Heller, Patricia began by saying she was speaking on behalf of her father and Respondent, and "she said that her father was very upset about what was happening and that she was going to do her best to get everybody back to work and that she wanted me to be a part of the company and that they liked me and that they were sorry that everything got the way it was." Continuing, she said that "she was very upset about . ' .. the union business. The fact that we have gone to the union for representation rather than being able to talk with Tony directly." She then asked "[h]ow did we go to the Union?" Heller replied that there were "difficulties in the store" beyond Caruso's control and that Fattore did not seem to care about re- solving them, causing the salesmen "to protect our- selves." Patricia responded that "labor unions aren't going to do any good for us and that we can resolve it without a labor union." Continuing, she said that unions just cost money and do not, work and that the salesmen did not need a union to "get the issues resolved." She mentioned that she did not like unions (a fact which was known to Heller who was aware Patricia had left her fa- ther's Datsun-Chrylser. dealership in Hayward rather than work under a union contract) and told of her expe- riences as a teacher in dealing with a union attempting to organize the teachers and defeating it. Next, Heller testi- fied, "She came up with a solution .. . writing every- thing down and resolving it and then asking the union to beg 'out and we'll resolve it without the -union." Such a document would be signed by everyone, agreeing "once the issues were resolved that we didn't need a union." According to Heller, he expressed doubt that such a letter would have any effect; however, Patricia Sullivan suggested they go to her office to discuss the matter fur- ther, and he agreed. They returned to Sullivan's office at Merit Pontiac, and "at that point she drew up a proposal. Something that she thought if I reworded it in my own writing that she thought the salesmen might want to sign once we got, the issues resolved and in that way, we didn't need a union anymore." The document (G.C. Exh. 4), in the form of a rough draft and suggested language, 3E Although, at first, unsure if this occurred on November 1 or 2 ("it was one of those days "), Heller thereafter consistently placed the incident as occurring on November 1, the day after his termination 88 Admitting that he and Patricia Sullivan always had a "friendly working relationship ," Heller stated that this was the first time they ever had lunch together and that he thought it strange reads: "To whom it . . . . In the heat of the battle we felt our only alternative was to go to the union for nego- tiating power. However since that time we have'recon- sidered & felt we acted somewhat hastily. Therefore we wish to withdraw 'our . . . request for union representa- tion in favor of . . . representing our selves [sic] . . . Believing that the letter was "a possibility" in terms of a solution to the salesmen's problems, Heller left Sullivan's office and telephoned Sherman Rothman, told him he thought the letter would work, and asked his opinion. Rothman "thought I was nuts. Told me I was nuts. Told me I was crazy and he said, you'd better forget that you even made this phone call about such a crazy idea." Heller testified that this conversation "was the end of that idea."34 Patricia Sullivan testified to a different version of what happened that day. Stating that she was unsure whether the day was November 1 or November 2, Sullivan says she telephoned Heller at Respondent's facility at approxi- mately 11:30 a.m. "to talk about something, about a deal that we were working," and Heller said there was no use in talking as he had just been fired and was leaving.35 Describing herself as "sorry Michael was leaving and I really missed him and I wanted to say goodbye," Patricia suggested they have lunch, and they agreed on Galla- gher's restaurant. According to Sullivan, this was the first she knew of his discharge. She testified further that their lunch lasted an hour and that she began the conver- sation,-saying she was sorry he was leaving because 50 percent of her business came from him and he was a good salesman. Heller said he did not want_to leave and asked if anything could be done.-Patricia replied that she did not know what could be done and that she did not know what Heller wanted: He replied that he did not want to leave and that the other men made him do it. She asked what he was talking about; Heller replied that he was "the victim of circumstances," that he did not or- ganize the Union, and that he had nothing to do with it. Heller continued, saying the others "got" him to be their spokesman but he really did not want to do it After he complained of receiving the "short end of the stick," Pa- tricia asked why he was laid off; Heller responded, "They said because I got in trouble with some customers with some DMV complaints." Patricia responded that people tend to forget DMV complaints, with salesmen going from dealership to dealership like a revolving door. Heller then inquired if she could think of anything, and Sullivan replied that it was hard to talk with the Union present because she understood you had to go through it. Heller said that no one wanted the Union, any longer She replied,. "Well, why don't you guys just get out of the Union?" Heller said he did not know how to do that, and she replied, "I bet if you signed a petition, they'd let you out of the union" and she explained a per- sonal experience with a teachers' union in which an em- ployee petition was utilized to defeat an organizing job. Heller asked what the language of such a petition should be and' for her help in writing it. Patricia agreed, and 94 Word of what Heller did that day reached those salesmen who con- tinued to work for Respondent, causing much resentment toward Heller 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they drove to her office. There, according to Patricia, Heller suggested that they each draft language and said that he would put the two versions together and have the salesmen sign . Sullivan identified General Counsel's Exhibit 4 as what she drafted for Heller.36 Finally, Sulli- van denied ever telling Heller she represented anyone but herself "because I had a vested interest in not having the store go union." In this regard, Patricia explained that she had no , desire being subject to a contractual union-security clause. Acting upon, the advice of counsel and in order to limit his financial liability, Lionel Sullivan sent telegrams to. Robert Stokes, Michael Heller, and 'Frank Sheehan, offering reinstatement to each. The telegrams were re- ceived about November 5; Heller and Stokes accepted and returned to work at Respondent's facility on Monday, November- 7.37 The record establishes that early that morning Caruso held a meeting, attended by all of Respondent' s salesmen . Regarding what was said, Sherman Rothman testified, "Mr. Caruso . . . said that he didn't want to talk about any of the issues at all .. . . He just said that he felt personally hurt that the men -didn't have enough confidence in him to -come in and talk to him . . . about their grievances because it would have been a better way to handle it. He said ,-let's go on from here. Let's do our job. Let's make believe nothing happened." Caruso continued, stating "that there could be no changes made . . . until this thing gets.resolved .." Nevertheless, "he wanted to know what com- plaints [the • salesmen] had that perhaps would not fall outside the purview of his authority under the circum- stances." Somebody raised the subject of work sched- ules, and Caruso asked, "Well what do you guys want. And they all said that they would be-happy with a split shift. And so, he said, you all want it, then, that's what we'll do and-that's what he did. And he posted it right then and there." According to Rothman, the_ previous work shift-was all day from 9 a.m. until 7 p.m.; the new formalized schedule, which was effective immediately, limited -hours of work from 9 a.m. until 2 or 3 p.m. or from 2 or 3 p.m. until 7 p.m., with 1 day off each week 36 Patricia testified that a couple of days after her lunch with Heller salesman Dan Pope "told me that Michael had taken [what she wrote] -down to the union and that I should be careful , that Michael was going to try to set me up " In addition , other salesmen reported to her that Heller had "sucked" them into supporting a union and , by speaking to her, had now "jacked" them around by. no longer wanting it They were upset at him Dan Pope, who testified that the discharges had been "asked for," also testified that Heller telephoned him one night , and "he told me he had gotten [Patricia] to fill out in her handwriting a . petition trying to get us to withdraw the union and he says, I'm going to use it to bury them " 97 Having obtained employment elsewhere , Sheehan did not accept the reinstatement offer He testified that he returned to the facility on two occasions in November in order to pick up commission checks On one such occasion , he was instructed by Caruso to get his check from Fattore at Merit Pontiac Sheehan did so, and spoke to Fattore in the latter's office According to Sheehan , "He asked what was I upset about in this situation and what did I feel that other people were upset about." Shee- han responded , relating the "areas that the people were specifically un- happy about ." Fattore said it was a shame that the people felt it necessary to go to the Union and asked, "Were you and Michael behind that?" Sheehan replied that he did not learn of going to the Union until Sunday, October 30, and that although he did not participate in organiz- ing the union movement, he did not disagree . Fattore expressed surprise at Sheehan 's professed lack of involvement , and the conversation ended and one full shift each week. Both Heller and John Har- denberg corroborated Rothman's account of what Caruso said and did. Hardenberg added that other sales- men complaints , including the need toattend the general Downtown Auto Center sales meetings, were given to Caruso and that, at a meeting a week later, Lionel Sulli- van announced that such general meetings would no longer be held. Caruso, who admittedly had been interrogating the salesmen during the prior week as to,why they were un- happy and as to why they sought union representation, testified that such a meeting occurred and that he"began by exhorting the salesmen that they must sell cars and get the month going. Then, he said to the group; "Do me a favor and let me -know what your problems are, write them down. Mr. Sullivan will talk- to us. But let's go on like nothing ever happened." Continuing, Caruso said that the salesmen responded by asking for split shifts, and Caruso agreed to, and did, implement such a schedule. Lionel Sullivan testified that a couple of days after he sent the offers of reinstatement Caruso called him, saying that the men had some gripes and that Caruso felt Respondent should do something about them. Sullivan asked for- the types of complaints, and Caruso said the major one concerned shifts. Sullivan told Caruso that "changes" could not be introduced but that he did not consider shifts to be a "major deal.". The shift change was implemented. - Heller's return to Respondent's employ lasted just 2 days. As stated earlier, the other salesmen were aware that he had spoken to Patricia Sullivan on.the day after his termination and - discussed with her a suggested method for ending the union organizing campaign among Respondent' s salesmen . They were upset about this, and when Heller returned, "a very hostile atmosphere" per- vaded the dealership. Unable to^.work in this environ- ment , Heller voluntanly' quit on November 8. He went to work for an unrelated. automobile dealership, quit that job 2 weeks later and, on November 20, returned to Re- spondent's facility and spoke to Tony Caruso. According to Heller, "I told him that I wasn 't going to work at the Datsun store anymore and I was going to look for other work." Caruso responded, "That' s great . Talk to Mr. Sullivan and we'll get you back to work here."' Heller denied that Caruso mentioned there was no room for other salesmen at that time. Tony Caruso testified that he told Heller he could not say yes or no and Heller would have to speak to Fattore. Caruso denied telling Heller to speak to Sullivan as the procedure is that Fattore is re- sponsible for hiring and must give the final approval. In any event, according to Heller, a couple of days later, he spoke to Sullivan in the latter's office at his Hayward Datsun-Chrysler store. They were alone and "Mr. Sulli- van said that he was sorry . . . about the Union business. He felt that he couldn't have me back at that time at the store. He had talked to Tony and Tony had hired extra people and he didn't need me anymore . . . . He felt that we should wait for the issues to be resolved before he would consider me coming back to work for the com- pany for that location." Sullivan offered Heller a job at the Datsun-Chrysler facility in Hayward, but Heller de- DOWNTOWN TOYOTA cided not to accept that offer. On cross-examination, Heller stated that Sullivan gave as the reason for.not re- hiring him "the union issue . . . he wanted that all to be resolved before I could go back . . and furthermore he had just talked to Tony . . . and there was no room for me." Lionel Sullivan testified that he learned that Heller desired to speak to him and that he telephoned Caruso to find out why. The latter reported that Heller wanted a job but said that hiring him would be a mistake as the attitude of the salesmen was "crappy" and he did not be- lieve Heller would be productive. Also, "He said, the store's got enough problems as it is right now." Accord- ing to Sullivan, Heller did come to see him, and they spoke for half an hour. He told Heller that he had just spoken to Caruso "and it doesn't seem that you'd be pro- ductive down there." Sullivan offered Heller a job at his Hayward dealership, saying "that we have a union store there." As to Respondent's facility, Sullivan told Heller that there was the possibility of a job there in 3-months "but right now it just wouldn't work." During cross-ex- amination , Sullivan admitted saying to Heller he could return to Respondent's facility after matters settled down. Shortly after Heller voluntarily quit work for Re- spondent, the remaining salesmen met with Patricia Sulli- van in an upstairs office at Respondent's facility. Sher- man Rothman testified that it occurred midway through a workday, that neither Caruso nor Fattore was present, and that Patricia initiated the meeting ("as I recall it was at her request that I went to the meeting"). Sullivan spoke first and . .. said to us that she was very shocked that we decided to join the union and that she can talk to us and it isn't proper for anyone else to. She stated that she had been involved in union activities-very unpleasant ones when she was a teacher many many years ago. She couldn't understand why we would want any part of it . . . and asked why we couldn't resolve this in a more satisfactory manner. We all told her in retrospect maybe we wish we did and maybe it would have been' better if we had gone [to] Tony . . . . She said, why don't we try to undo what we've done? - At that point, according to Rothman, he commented that the salesmen believed that, if they did "undo" things, their jobs would be in jeopardy and they had no job se- curity. "She said she didn't know how anybody could assure us of that . . . that she would not be able to handle leasing with us 'if we went union , because . . . she functions out of all the stores and she being none [sic] union would not in any way be' able to help us with the leasing ." 38 Rothman further recalled Patricia saying "very forcefully ... that she would like us not to join the union" but she did not "suggest any method of undo- ing it ." The meeting lasted no more than 15 minutes. - 98 According to Rothman , upon hearing this, the salesmen whispered among themselves "that that wouldn't be any great loss, because they would prefer her not doing leasing so that they can make all the commis- sions " 1009 Patricia Sullivan testified that as a result of several-of Respondent's salesmen coming to her and complaining about Michael Heller's actions in originating and, then, supposedly abandoning the union movement and Dan Pope having informed her "that nobody really wanted the union anymore," she spoke to several salesmen, asking "if they'd like to talk about it." During cross-ex- amination, Patricia admitted that she was at the Toyota facility specifically "because I wanted to talk to them"; that this was the first time she held a meeting on her own, that Caruso asked no questions regarding it;39 that the facility was open for business. while she conducted the meeting; and that she suggested the meeting. to Pope who "went out and got the guys, said to come on over." The meeting lasted from 30 to 45 minutes, all the then employed salesmen, with the exception of Hardenberg, were present, and she was the first to speak, asking, "How did we get to this. I can't understand how we got to this point where we can't talk to each other any- more." Rothman spoke next, mentioning "that a lot of the guys were upset about the way things were going . .. and there was general discussion as to . . . why was it that they didn't feel comfortable going and talking to Ralph or Tony or to [her father] about those things." Among the concerns mentioned were their treatment at sales meetings, their-hours, and a feeling of a lack of re- spect. Next, Patricia said she thought "that getting a third party involved never solved things, that only direct person-to-person conversations could [do so] . . . ." The salesmen responded that the Union had advised against such contacts and asked how to get around that; she re- plied that 'with the union present direct talks would be difficult and that such was why she was against unions. The salesmen asked what could they do, and Patricia re- sponded,- "To me, the only. way is to put the union aside . .. and deal directly with the people that you have the problems with . :. that getting a third party involved . has not always been a solution." Unable to recall any specific solutions she suggested, Patricia said that she "may" have suggested the salesmen go to the Union and say they no longer wished to be members. Finally, Rothman, Pope, and Richard Heller expressed concern over repercussions if they chose to leave the Union; Sul- livan replied that she did not know if they would lose their jobs but a union would not protect you from losing your jobs, because people can get fired . regardless of whether they belong to a union or not . . . ." Dan Pope testified that the meeting between Patricia and the sales- men occurred after she had spoken to several salesmen regarding how to resolve their problems, "and she asked would it be a good idea if we could all get together and talk informally." At the meeting, attended by Pope, Da- Silva, Richard Heller, Rothman, and two new salesmen, Patricia spoke first and suggested a way,to resolve their problem would be to notify the Union that employees no longer wanted to be members ("If that's what we wanted, we should do that.") Also, according to Pope, "There was activities mentioned that we should do 39 According to Patricia, she merely told Caruso she was going to use an upstairs room "to talk to the guys for awhile " 1010 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD something if we did not want this union. One was writ- ing this letter that Michael Heller had talked about." A' day or two after this meeting, the authorization cardsigners who had not been terminated and who had been present for the session with Patricia Sullivan- Pope, DaSilva, Rothman, and Richard Heller-went to the Union's office for the purpose of revoking their rep- resentation authorizations. Denying such had been sug- gested by Patricia, Pope stated that "the withdrawing of the cards is something that we decided"to do on our own " They met with Richard Salvaressa and, according to the union official, Pope and Rothman, who were the spokesmen, said that they' "thought that he was doing something against this campaign. And they were a little bit scared of what was the consequences . . . . - So they had requested . . . about their authorization cards . . . be given back." In response, Salvaressa mentioned pend- ing unfair labor practice charges and an election petition before the Board "and I don't know what difference if I gave the cards back . . . and the [Board has] . . the cards." He continued, saying by withdrawing the cards, they could jeopardize the legal positions of Michael Heller, Sheehan, and Stokes. Salvaressa added that it was their choice but reiterated he did not see how withdraw- ing the cards would affect the NLRB actions. Rothman corroborated Salvaressa's testimony regarding the inef- fectiveness of the salesmen's contemplated actions; how- ever, both Rothman -and Pope testified that Salvaressa emphasized that they could not have the cards back. The four salesmen accepted what Salvaressa said and left the Union's office. John Hardenberg testified that he worked as a used- car salesman. for Respondent from August 15 until No- vember 30, on which date he was given a choice by Lionel Sullivan of resigning or being fired. At the outset, the General Counsel's position is that Respondent knew or suspected that Hardenberg was involved in the union organizing campaign at the Toyota facility and that he was fired 'for that reason. In this regard, Hardenberg tes- tified that Brenda Brown raised the subject of the Union during a conversation between them in the finance office in mid-November. Dan Pope had just left, and she asked "[w]here was the meeting held and how many people signed the cards . . . . She said she was trying to find . . . for Fattore and Sullivan . . . who's involved in the union . .. . She asked me if I was ." He replied that he had never resigned from the Union since becoming a member at S & K Toyota, his previous employer. Brown replied that Respondent knew that.40 A few days later, a Sunday, Hardenberg asked Brown if she would like to have a drink with, him after work at Gallagher's restau- rant. She replied that she had previously arranged to meet Fattore for a drink but that Hardenberg was wel- come to come along. He agreed. Later, while she drove them to the restaurant, according to Hardenberg, "Brown . . . said that Ralph wanted her to be . . . his 40 While not testifying specifically about this conversation, Brown, who admitted learning of the union organizing meeting at DaSilva's house from Hardenberg, also admitted asking Hardenberg, on a couple of occasions, about his union involvement and being told by Hardenberg that he paid his dues Asked why she asked such questions, Brown averred she was "curious " ear down there, to find out who was involved with the union . . . When they arrived, Brown sat at a table with Fattore and another man; while Hardenberg sat by himself. After 15 or 20 minutes, the hitter became bored and asked Brown to drive him to his car. She agreed, and "on the way, she mentioned that he kept asking who all signed up for the union, where was the union .. . meeting held . . . ." Brown corroborated- Hardenberg that the later incident occurred; she had no recollection of their conversation on the way to the restaurant. How- ever, while she could not recall what -was said as they drove Hardenberg to his car, she did remember that, as Hardenberg was getting out of her car, "there' had been some union . . . meetings that were going on and every- body was talking about them in the dealership. And I asked John, I said, are you involved in this union deal that's going on. And he said, I pay my union dues." Fur- ther, according to Hardenberg, he was informed at 6.30 p.m. on November 30 that Lionel Sullivan wanted to speak to him in the former's office at Merit Pontiac. Har- denberg reported to Sullivan's office, and they spoke alone. Hardenberg said "Basically, he just told me at that point, I'd like to see you resign or get fired. I'd like to have you resign and write a resignation letter, the fact you went back to S & K for a better job opportunity, so I can have it in the file." Also, "He mentioned something about he needed the resignation letter in my file because of the union activities down the street, and he was sorry to see me' go." Asked if Sullivan gave him a reason for his discharge, Hardenberg replied, "Well, he believe [sic] I curbed a car."4 t Respondent's defense to the asserted unlawful dis- charge of -Hardenberg is that he was terminated for his suspected, and later admitted, involvement in the curbing of a white MG sports car. Hardenberg testified that during October used-car salesman Bill Larkin was em- ployed by Respondent and that they worked as partners, dividing the commission on sales. According to the al- leged discriminatee, on the last Wednesday of that month, Caruso told him that Larkin was being trans- ferred to the Subaru store. Later that day, a customer, who had been test driving an MG car, came to the used- car lot and asked for Larkin. The next day, Larkin tele- phoned Hardenberg and asked him to drive the MG to the Subaru store so that he could sell it there. Harden- berg objected, saying he wanted the sale. Larkin replied that the deal was too low for Caruso to accept, and Har- denberg agreed to drive the car to Larkin's location. At this time, according to Hardenberg, he knew no details of the sale and assumed he would be given half the com- mission . Hardenberg delivered the car to the Subaru store; later that day, Larkin called Hardenberg and re- quested that he deliver the MG to the buyer, a girl whose father was the actual purchaser. After work that day, Hardenberg drove the MG, with the report of sale taped to the windshield "folded in half so you don't know who or what its from" to where the girl was stay- 41 The parties stipulated that "curbing a car" refers to salesmen repre- senting that a vehicle on a dealership's lot is in that dealership's inventory when such is not a fact and selling the vehicle without giving the dealer- ship the proceeds of the sale DOWNTOWN TOYOTA - 1011 ing. By the time he arrived with the car, its engine had become overheated and water was "pouring" from the engine . Hardenberg thereupon advised the girl to refuse delivery, and he said he would have the car repaired: The next morning, Hardenberg took the car to George Holden, the used-car manager, and the latter sent the MG for repair. The foregoing was Hardenberg's account of his involvement with the MG automobile. He specifi- cally denied any other involvement in the sale of the, car.- Two weeks -later, on November 13, -Hardenberg re- ported on what had occurred to Caruso, "I came into Tony's office, shut the door, and told him that I -believed George Holden was stealing from the company . . . . - I told Tony about the MG deal' .. . that [Larkin and Holden] sold the car out from under the dealer, and I found out they sold it on Fred Shirley's- report of sale book."42 'Caruso said they should report all this to Lionel Sullivan,-and the next day, the three of them met in Caruso's office. Hardenberg repeated' what he told Caruso, asserting that "the deal went through Fred Shir- ley instead of through the dealership." At this point, Sul-- livan reached into a briefcase and withdrew "information on the deal." He wanted to know how Hardenberg was involved and ordered that everyone keep everything "hush-hush." Asked if he responded when Sullivan asked for 'his involvement, Hardenberg answered, "Oh, I told him that at one point Bill Larkin called me up and asked me if I could deliver the car to the gal who was driving what I thought was one of the store's cars . . . . I told him that the other car, the rental. car, was wrecked at that point, and that George told me to give her another car and not say anything about it." The meeting ended, with Sullivan thanking Hardenberg for reporting on what had happened. ' Subsequently, Hardenberg became aware of a DMV investigation of-the curbing incident, stating, "They said I had nothing to do with it. At that 'point, I was cleared of all charges against- me." Also, approximately 10 days later, Rich Miraglio, another automobile wholesaler, told Hardenberg that Sullivan was asking questions about him and suggested that Hardenberg speak to Sullivan. There- upon, the former arranged an appointment with' Sullivan in the latter's office. Hardenberg testified that he "pre- sented him . . . the problem, saying that there was 'hear- say' that he stole four or five other cars and that he'd always professed his honesty to Sullivan." The latter re- plied, "`Yes, I know you're honest. . . . Then he stated that . . . I was a good employee and he wished other things weren' t going on at this point, but he'd like to see me resign or I'd get fired eventually." Asked if he re- called Sullivan saying anything else, Hardenberg remem- bered, "he mentioned that he wished that ... we weren't organizing the union down the street." Next, once again asked about what Sullivan said at the subse- quent discharge meeting on November 30, Hardenberg stated that Sullivan said "he would get my check ready on December 2nd, and `why don't you come in and--have a resignation letter' . . . stating that I went to S & K for ... better job benefits."' Asked if Sullivan gave a 42 Fred Shirley is known in the trade as a "wholesaler " to whom deal- ers consign cars for sale. Respondent did some business with him ' reason, Hardenberg answered, "Well, because he felt I was involved in the MG deal, and a few other things, he said. And I' went "Fine."' He could not recall anything else said during the conversation. Finally, the Union's at- torney asked Hardenberg what was said by Sullivan and him during their November 30 conversation, and Har- denberg related a third version of it: Sullivan began by saying "He was sorry this happened, and he would .. . like to see me a little higher up in the organization ... . He mentioned that he wished the union problems weren't going on at the ' time." He continued, saying "I - fired George Holden and -asked Bill Larkin to resign. He said he'd like. to see . . . if I would resign." Hardenberg re- plied that.he would try and obtain a job with his previ- ous employer, S & K Toyota, and Sullivan asked that he place this in his resignation letter. Sullivan concluded by saying he wished he did not have to let me go. As he completed this version of 'the discharge conversation, Hardenberg asserted Miraglio reported43 to him that Sullivan told Miraglio "he wished I wasn't a member of the union or I would still be at the store." During cross-examination, Hardenberg testified that he initially became ' suspicious of the MG deal about No- vember 5 when -the owner called him, reported that she had just wrecked the loaner car given her by Larkin, and requested another. At that time,'he invited the girl to a ballgame and, 'while there, they discussed her deal for the MG, with Hardenberg realizing that Caruso would have accepted it. Suspicious but still believing the sale had been through the dealership, -according to Harden- berg, he approached Larkin- 2 days later "to find out where my commission voucher was on the car." At this point, Larkin told him the sale details, saying Larkin had been given $300 by Fred Shirley for selling the --MG. Larkin offered Hardenberg half of this payment "because we were partners," but the latter refused the money as he "didn't want any part of it." As to-why he continued to delay in telling his story to Caruso until November 13, Hardenberg asserted that he was seeking advice. from 'Miraglio as to what • he should do. Finally,' during his conversation with Caruso on November 13, Hardenberg "might -have mentioned that I was promised $150" by Larkin. In addition to the foregoing, Hardenberg was ex- tensively examined as to his three conversations with Sullivan. As to the initial one, he admitted that the sub- ject of commission was raised by Sullivan-he "asked me if I was offered, and I'said, 'Yeah, they-offered me $150 but I never took it."' Regarding the second conversation, 7 to 10 days later, Hardenberg said that he confronted Sullivan with making inquiries about him, including "my involvement with the union." Sullivan allegedly replied "that he wished that I wasn't . . . so strongly in favor of unions, and he was in favor of just . .. having ... one party speak to another party, and not having a third party involved." To this, Hardenberg replied that he had worked for a union employer and that he knew such were "a little bit straighter," not changing working con- ditions and having set hours and a schedule. Sullivan re- 49 Apparently ,' Miraglio died prior to the start of the hearing. Accord- ingly, such testimony is admissible as an exception to the hearsay rule See Rule 804 of the Federal Rules of Evidence. 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sponded that Respondent did not operate that way. Fi- nally, Hardenberg asserted that Sullivan admitted to him "he knew that I wasn 't involved in [curbing the car]." As to the final meeting bet ^,-en the two, Hardenberg at- tributed to Sullivan that "he wished I ' wasn 't, a member of the union . .." but denied Sullivan mentioning the curbing of the MG automobile as the reason for his quit or be discharged ultimatum to him.44 Further, asked by me if Sullivan gave him a reason for wanting a resigna- tion .letter from him for Respondent's files, Hardenberg answered "because of the union activities down the street, and he wanted to protect himself." Lionel Sullivan testified that between November 5 and and based on conversations with the purchasers of the MG and on documents relating to the sale and other matters he formed the belief that Hardenberg, along with Bill Larkin and George Holden, was directly involved in the curbing of a 'car, the MG. According to Sullivan, his own involvement in the incident began when he was no- tified by a towing company that it had in its possession a wrecked Buick automobile on which were Respondent's dealer license plates. Sullivan was given the engine number of the Buick; however, a check of the Down- town Auto Center inventory list disclosed that no such automobile was owned by the company. Thereupon, Sul- livan contacted the police ,and learned that the car had been involved in an accident and that. the car's driver was a woman named Maurey Vasquez. Investigating fur- ther, Sullivan subsequently spoke to -both Vasquez and her father. He testified that both informed45 him that they had purchased an MG automobile from Respondent on October 26 or 27; that, in the process of the sale, they had spoken to Hardenberg and Larkin; that Larkin was the salesman who actually closed the deal; that Harden- berg delivered the newly purchased MG to Maurey Vas- quez at an Oakland hotel; that - during the following weekend the car developed engine problems which she immediately reported to Hardenberg; and that Larkin and Holden arranged to loan her the subsequently wrecked Buick to use while the MG was being repaired. According to Sullivan, both the father and daughter also told him that, after - damaging the Buick, Maurey Vas- quez telephoned Hardenberg "and he gave her a Corolla to drive." In addition to these conversations, Sullivan ob- tained copies of the accident report, the repair estimate for the MG, and the MG sale contract, which document established that the car was purchased from World Wide Auto of San Jose, California. Based on the foregoing, Sullivan believed that theft was involved in the MG transaction as "the car was sold off of my lot and deliv- ered off my lot and I-didn't get the money out of it." As to the Toyota Corolla, Sullivan was given the license number by Maurey Vasquez' father, ascertained that it 44 Hardenberg never signed a resignation letter, saying he had until December 15 to decide Dunng the 2-week penod, Sullivan permitted him to drive a demo vehicle 4s Neither Maurey Vasquez nor her father was called as a witness by Respondent , given the hearsay nature of what was attributed to them, Sullivan 's testimony , of what they told him , was not received for the truth of such, rather for its effect on the state of mind of Sullivan was owned by Respondent, and ordered Tony Caruso to search for it.46 - Regarding the initial conversation with Hardenberg, Sullivan placed it as occurring on Saturday morning, November 19,47 in Caruso's office. He testified that Har- denberg began, stating that he believed-Sullivan was the victim of theft. Sullivan asked how, and Hardenberg re- plied, "George Holden is taking in the cars for a lot less money than they're worth . . . and I think he's working with some wholesaler and selling the cars." Sullivan asked why Hardenberg believed that, and he responded that he had lost two deals, that he had had both cars ap- praised, and that each was worth $400 or $500 more than the sale price. Next, Hardenberg mentioned the white MG, saying, "[We] worked out a deal on this MG and sold it off the lot . . . . Larkin had made the deal and he delivered the car ...." He claimed that he had nothing to do with that transaction "and I don't want to be in- volved in the thing . . . ." At that point, Sullivan testi- fied, he told Hardenberg he was involved in the matter and reached into a briefcase for his records on the MG sale. Then, he said he had the police report on the girl's accident, and "I told him about the Corolla . ... I said you are involved, and reported on exactly what I had done to that point." Sullivan concluded, saying, "You are already involved. You violated your license in a couple of areas. You're involved, John, so you may as well know it, and I've already done these things and I can't pull them back." Hardenberg replied-"He said, goddamn, for $75 I get in all this kind of mess." Caruso, who testified that he already knew that Sullivan believed Hardenberg, Larkin, and Holden had curbed the' MG, purchased by Maurey Vasquez and her father, stated that Hardenberg came to his office and reported that Holden and Larkin had "curbed" the MG and that "he didn't know why it wasn't sold through the house . . . but that Bill Larkin had told him that I would not have taken . . . the deal." After Hardenberg said that the MG had belonged to "a Mr. Fred Shirley," Caruso advised that they speak to Sullivan. The three met the next day in Caruso's office, and Hardenberg repeated the entire story. He told of Larkin's sale of the MG, which had been owned by Shirley, the fact that the MG had a me- chanical problem and that they were forced to loan her a car, with Respondent's dealer license plates, which she proceeded to wreck, and the fact that he told the girl to come in for a replacement car. According to Caruso, he interrupted Hardenberg, asking whether Hardenberg was lying about the Toyota Corolla. "He says-'yeah,' he said, `but it isn't worth it for the lousy $75 I got."' Sullivan testified that, early in the week following this conversation, Rich Miraglio called him and asked that he "back off" taking action against Hardenberg's license as he had been "drawn into the deal" and had never previ- 4e Caruso corroborated that he undertook , at Sullivan 's behest, a search for the Corolla . He testified that dunng said search Hardenberg continually denied knowledge of the missing car Hardenberg did not deny this testimony 47 By this date, stated Sullivan , he had discovered from the Down- town Auto Center files that Respondent had been wholesaling a large number of cars to an individual named Fred Shirley and learned the DMV was conducting an ongoing investigation of the latter. DOWNTOWN TOYOTA 1013 ously curbed a car. Sullivan replied that what concerned him was the time between the selling of the car and Har- denberg's confession. The conversation ended with Sulli- van stating that he had already contacted the DMV and would make no commitments until the extent of Harden- berg'-s conduct was known. After speaking to Miraglio, Sullivan spoke to several people regarding Hardenberg's reputation, decided to do nothing regarding his license, but "I couldn't keep him there because I'd come across other cars that had been curbed that I couldn't find where he had been involved in but other people were that he was close to." Thereafter, in the last week of No- vember, Sullivan met with Hardenberg and told him of the Miraglio conversation and of his subsequent investi- gation. He next told Hardenberg that Miraglio believed he had talent and, if so, there was a future for him in the automobile sales business, and "You're too damn young to get involved in anything illegal and really get hooked going in ." Next, he said that Larkin and Holden would be fired at the end of the month but "I'll tell you what, if you want to do this, if you will give'me a letter of resig- nation at the end of the month and if people call and ask me on a referral if you quit or 'were- fired, I'd say that you resigned . . . . If you don't do 'that .. . I've got to fire you [at the end of the month]." According to Sulli- van, Hardenberg agreed that it would be better to "go and look for another job" and said that he would resign when he found a new job. Sullivan48 agreed to that. At approximately the same time Sullivan gave Harden- berg his ultimatum of resigning or being discharged, an individual named Arthur Francis applied to Respondent for a salesman position. Tony Caruso' `referred him to Ralph Fattore, and they spoke in Fattore's office one morning at 10:45. Fattore began by asking why Francis no longer was working at Toyota of San Francisco, and the applicant replied that because of labor problems a pleasant working atmosphere did not exist. Fattore re- plied, "I didn't have to worry about a union situation at this store and that he didn't want any unions for automo- bile salesmen ." Thereupon, Fattore" offered a job to Francis. Also, in November or December, according to Sherman Rothman, Lionel Sullivan conducted a meeting for Respondent's salesmen ,in the upstairs office at the Toyota facility. Rothman Testified that Sullivan began by distributing to the salesmen copies of a muliipage document regarding various financial aspects of their em- ployment, which were to become effective January 1, 1984. "Mr. Sullivan -prefaced his remarks that with the advice and consent of his attorneys he is now happy to give us a pay plan." Thereupon, Sullivan read each sepa- rate article aloud. At the hearing, Rothman testified re- garding the above document (G.C. Exh. 14), defining which specific, aspects represented newly implemented benefits. These included a monthly special bonus ("com- pletely different" from the one prior to the meeting), an 49 Sullivan was not involved in the decisions to terminate employees Heller, Stokes, and Sheehan on October 31; however, according to Sulli- van, "[Fattore] and Tony . told me a couple of weeks before that they were going to probably let some of the guys go from down at the Toyota place." No names were given Sullivan, and he admitted having doubts that the discharges on October 31 were unrelated to the union ac- tivities. increase of $100 in the bimonthly draw against commis- sion, a paid vacation policy. (prior to the meeting. there existed no standard vacation policy, "[n]ow, there's a set- policy of vacations") and a, Christmas bonus ("this I think is new . . .' . [Such a plan] was not in exist- ence.").49 Regarding the foregoing, Sullivan testified that Downtown Auto Center was established in Novem- ber 1982, that the same terms and conditions of employ- ment were implemented for all the facilities, and that "I can't say there's a written set policy except that I have [sic] a general meeting in the first part of 1983 . . . . And I outlined generally the things that we would be in- stituting . . . . And as we went along . . . we'd make changes . . . . And if we felt there was areas we needed to correct . . . we did." During cross-examination, Sulli- van admitted that he did not mention any specific changes in benefits at this early 1983 meeting. Also, he stated that the changes, set forth in General Counsel's Exhibit 14, were made after the "first of the year" as he had promised to review benefits "on an annual basis" and such had previously been implemented at the Merit Pontiac and Subaru facilities. About December 29, Re- spondent's attorney sent the following letter to Richard Salvaressa: -Dear Mr. Salvaressa: Please be advised that Downtown Toyota is repre- sented by Redwood Employers Association in all matters pertaining to labor relations. By writing this letter to your Union regarding the above-referenced bargaining unit, the Employer is not in any way bestowing recognition on your Union as the majority representative of any of its employees. Rather, the Employer is simply attempt- ing to abide by the rules and regulations of National Labor Relations Board. There is currently pending before the NLRB an election petition. The NLRB rules and regulations then prohibit the Employer from making any unilat- eral changes which had not been customarily done in the past. The problem is further complicated by the pendency of the unfair labor practice charge, on which apparently the Region will be issuing a com- plaint sometime in the near future. Thus, the matter may be "pending" for many, many months. Approximately one year ago, the Employer advised the bargaining unit people involved in the above- referenced unit that by the first of the year, 1984, he would review the current terms and conditions of employment with an eye towards improving them. 49 A pension plan was also set forth by Respondent on the document Rothman believed that such had already been in existence The salesman "didn't know anything about it; but I think I did , because when I went to a subsequent meeting and it was explained , I had seen it somewhere " This "subsequent meeting" occurred a month later It was held at Merit Pontiac and attended by all the Downtown Auto Center salesmen Sulli- van conducted the meeting and, according to Rothman , "There was dis- cussion about individual retirement accounts that all the dealerships ap- parently participate [d] in together " Regarding what was discussed, "I believe this was in existence before .. " -1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After a careful review of the current terms and con-' ditions of employment, the 'Employer has decided to implement some improvements in other bargain- ing units not involved in the pending RC petition. Absent objection from the Union, the Employer wishes to implement , those same terms and condi- tions at Downtown Toyota. forward, conceptual problems arose in cases in which a plurality of motivation was involved-the presence of both a lawful cause and an unlawful cause for the dis- charge. In order to resolve this ambiguity, in Wright Line,- supra, the Board established the following causa- tion test in all Section 8(a)(1) and (3) cases involving em- ployer motivation: If the Union- has objection to the Employer imple- menting improvements in terms and conditions of the bargaining unit people involved in-Case No. 32- RM-1924, kindly advise the undersigned within ten days of receipt of this letter. Salvaressa replied 6 days later: Dear Mr. -Sullivan: Automobile Salesmen's Union, Local #1095 is in receipt of Mr. Jordan's letter dated December 29, 1983. In response to this letter, Automobile Sales- men's Union is- happy to see the company desire to increase the terms and conditions of Employment, this will show -the salespeople that Local #1095 not only helped the Toyota Dealership, but also your other two Dealerships. Automobile Salesmen 's Union wants to meet with you to bargain other increases, also to discuss whether these increases you want to change should- be put into other benefits. - Please contact Automobile Salesmen's Union to set a mutual time and `date to meet. B: Analysis The consolidated amended complaint alleges that. Mi- chael Heller, Robert Stokes , Frank Sheehan , and John Hardenberg were terminated by Respondent in violation of Section 8(a)(1) and (3) of the Act and that Respondent refused to rehire Heller , following his earlier reinstate- ment and-'subsequent voluntary - termination , in violation -of that same provision . Determinations as to the legality of the discharges of the above-four salesmen is governed by the traditional precepts of Board law in 8(a )( 1) and (3) discharge cases , as modified by the Board's decision in Wright Line, 251 NLRB 1083 (1980), enfd . 662 F.2d 899 (1st Cir . 1981).50 Thus , in order to establish a prima facie violation of Section 8(a)(1) and (3) of the Act, the General Counsel must - establish ( 1) that the alleged dis- criminatees engaged in - union or other protected - concert- ed activities ; (2) that the employer had knowledge of said activities ;-(3) that the employer's actions were moti- vated by union animus; and (4) that the discharge had the effect of encouraging or discouraging membership in a labor organization . WMUR-TV, 253 NLRB 697, 703 (1980). Further , the General Counsel has the burden of proving the aforementioned by a preponderance of the evidence . Gonic 'Mfg. Co., 141 NLRB 201, 209 (1963). While the aforementioned analysis was easily applied in cases in which the employer 's motivation was straight- 50 The Board 's Wright Line'decision was specifically upheld by the Su- preme Court in NLRB v Transportation Management Corp, 462 U S. 393 (1983) - First, we shall require that the 'General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer 's decision . Once this is es- tablished, the burden will shift to , the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. [Id. at 1089.] - - Two points are relevant to the foregoing test. First, in concluding that the General Counsel has established a prima facie violation of the Act, the Board will not "quantitatively analyze" - the effect of the unlawful motive. The existence of such is sufficient to make a dis- charge a violation of the Act. (Id. at 1089, fn. 14.) Second, while apparently warranting the identical analyt- ical approach, pretextual discharge cases should be viewed as those in which the "defense of business justifi- cation is wholly without merit." (Id. at 1084, fn. 5.) - • With regard to 'whether- there exists record evidence sufficient to establish prima facie violations of the Act in the discharges of Heller, Stokes, and Sheehan on-Octo- ber 31, the single, overriding fact-and one strongly sug- gestive of unlawful motivation-is that they were termi- nated the day after meeting with other salesmen at Celso DaSilva's house to discuss the matter of seeking union representation and within hours after they and other salesmen went to the Union's office, met with union offi- cials, and executed authorization cards in support of the Union. The core issue presented herein concerns Re- spondent's knowledge of said union activities prior to the termination of each alleged discriminatee. As to this, I believe the record supports and, indeed, warrants the in- ference that Respondent became aware of the nascent union organizing campaign among its salesmen on the evening of Sunday, October 30. Thus, Brenda Brown, a witness called by Respondent, admitted-that John Har- denberg informed her that he and the other salesmen were going to meet that night-at Celso DaSilva's house to "try and pull the union in the store" and that she in- formed Ralph Fattore and Gerhart Geiblinger of what Hardenberg said. Regarding the latter, she admitted in- forming him later that same day. Regarding Fattore, Brown professed uncertainty as to informing him "that same evening" or "a week later" at a bar near Respond- ent's facility. Inasmuch as Fattore's practice was to ask how her day went, as she usually reported to him on the unusual things . that, occurred in- the finance office that same day, and as she considered what Hardenberg told her important enough for Fattore to know, I conclude that Brown informed Fattore of Hardenberg's' report of the union meeting at DaSilva 's house "that - same DOWNTOWN TOYOTA 1015 evening 1151 Respondent's conduct the next morning, Oc- tober 31, substantiates my finding, is indicative of an em- ployer attempting to ascertain-the scope and leaders of a union organizing campaign, and demonstrates its attitude toward such. Thus, an hour after the execution of the au- thorization cards, Ralph Fattore called Heller into his office at Merit Pontiac and asked him what was going on (Heller admitted the union campaign), who instigated the union organizing, and, referring' to 'Sheehan, was it "Frank."52 Also, according to Dan Pope, Patricia Sulli- van53 appeared at the dealership that morning, asking if there was truth to the rumors of union activity. 54 Fur- 51 In so finding, I discredit the testimony of Ralph Fattore that he first learned of the union organizing campaign dung the evening of Monday, October 31-subsequent to the terminations Fattore was a most uncon- yincing witness and impressed me as utterly lacking in candor and as having testified in a mendacious manner, with apparent disdain for the truth I do not rely upon his testimony at any point herein Further, I believe the record as a whole establishes that Hardenberg 's conversation with Brown and her subsequent report to'Fattore occurred on a Sunday and not on a Wednesday as testified to by Brown_ Finally, I further believe the record warrants the inference that Geib- linger telephoned Fattore with the information regarding the union meet- ing poor to Brown's conversation with Fattore Such explains the latter's comment to Brown that he already knew of the meeting 51 Fattore did not deny the occurrence of this conversation Michael Heller, for the most part, impressed me as being candid and forthright as a witness , he is credited as to this conversation 51 I find that Patricia acted as Respondent 's agent, within the meaning of Sec 2(13) of the Act, in dealing with the union organizing campaign at Respondent's facility Thus, not only was she the daughter of Lionel Sullivan (a well-known fact) and in charge of all lease sales for Down- town Auto Center (a fact which, to some extent, gave her a degree of control over the commission-earning potential of the Downtown Toyota salesmen) but also, according.to Michael Heller and uncontroverted by Patricia, she possessed keys to the facility and had access to the safe, au- thority beyond that of the salesmen Also, during her luncheon meeting with Michael Heller, she stated that she was speaking on behalf of her father I credit Heller in this regard Further, and most significantly, she was able to call a meeting of the salesmen one afternoon early in Novem- ber during the workday, while the facility remained open for business, and without ' questions by Tony Caruso as to its purpose Such suggests a significant degree-of managerial authority In these circumstances, the salesmen could believe that when Patricia spoke, she was, in fact, ex- pressing Respondent's attitude and was Respondent's voice Indian Head Lubricants, 261 NLRB 12, 18 (1982), Town & Country Supermarkets, 244 NLRB 303, 306 (1979) Finally, even if Patricia's conduct may have been partly motivated by self-interest, such did not dissipate her agency status as she clearly carried out Respondent 's antiunion aims and policies in her dealings with the salesmen Longshoremen ILA Local 1814 v NLRB, 116 LRRM 2291, 2300 (1984) Counsel for Respondent relies on F M Broad- casting Corp, 211 NLRB 560 (1974), in arguing that Sullivan should not be considered as Respondent 's agent I believe that case is distinguishable as the son -in-law's alleged . agency status came mainly from his own words and not his employment. status Thus, absent his own words, the individual 's status was that of an employee-member of the bargaining unit (Id at 563 ) Herein , as the daughter of a part owner who exercises control over the operation of the business, not only would Sullivan be excluded from the salesmen 's bargaining unit but also because she pos- sesses managerial authority more over the salesmen Her status as an agent flows mainly from this 54 Sullivan did not deny the incident While I believe, as she testified, that Patricia first became aware of the union activity when salesperson Joan Ramsey informed her -that Heller had solicited her to join the Union, I find that such occurred in the morning of Monday, October 31 I note that Patricia placed this as occurring the day before her lunch with Michael Heller but that she could not recall if the lunch was on Tuesday or Wednesday Heller testified that the solicitation of Ramsey was on Monday, October 31 Such is more likely than not accurate as it would be most unreasonable to believe he was soliciting union member- ship on Tuesday , the day following his termination Further, I note the contradictory testimony of Patricia and Fattore as to whether she identi- fied Heller as the one who had solicited Joan Ramsey ther, Used-Car Manager George Holden telephoned John Hardenberg at Respondent's used-car lot between 12 and 1 p.m. and interrogated him as to what was going on, who was involved, and' were Stokes or Heller the in- stigators.55 Moreover, according to Hardenberg, at ap- proximately 1:30 p.m., while he was speaking to Stokes, Patricia Sullivan passed by and called Stokes a "fucking asshole." She failed.to deny using the epithet and, other than Stokes' involvement in the union campaign, there is no record explanation for its use. Finally, Heller testified that, immediately after being discharged he spoke to Pa- tricia and asked if she knew what was happening She answered, yes, and averred that he did not have to make all those phone calls.56 The record evidence conclusive- ly establishes that, having learned of the union move- ment the previous evening, Respondent's agents , during the morning of October 31, set out to ascertain the scope and leadership of it, conveying their definite suspicions that Heller, Sheehan, and Stokes were the organizers. This evidence, when considered along with the abrupt timing of the discharges of the three salesmen, warrants the finding that said actions were directly related to their union activities and mandates my conclusion that the General Counsel has established prima facie violations of Section 8(a)(1) and (3) of the Act in the terminations of Heller, Sheehan, and Stokes. NLRB v. Town & Country Supermarkets, 666 F.2d 1294, 1298 (10th Cir. 1981); Jacobo Marti & Sons, Inc., 264 NLRB 30, 34 (1982). The burden of proof, therefore, shifted to Respondent to establish that, notwithstanding its unlawful motivation it would nevertheless have terminated the three salesmen for legitimate business reasons. Initially, with regard to Frank Sheehan, noting the utterly inconsistent, confus- ing, and contradictory testimony of Tony Caruso, who, to a great extent, failed to impress me as testifying with a high degree of candor, as to the timing of his57 decision to terminate Sheehan, three factors58 convince me that he should be credited as to his motivation. First, the record is uncontroverted, and Sheehan admitted that his total car sales for September and October were extreme- ly poor. Next, given these extremely low-and such were abnormally so even considering a lack of available cars-sales, I find it rather hard to believe, and highly Sullivan testified that, within an hour of Ramsey telling her of the so- licitation by Heller, she telephoned Caruso with the information Caruso testified that he learned of the union activity from Patricia on November I Based upon my belief as to when the call was made and upon his de- meanor, I do not credit Caruso in this regard Further, Caruso admitted that Sullivan's words to him were that he had better look into it I be- lieve that such represented a directive by Patricia that Caruso'act to learn about the organizing activities Such supports my conclusion as to her status as an agent In this regard, I was unpersuaded by Caruso's "lame" efforts to reduce the impact of her words Ss Holden did not testify at the hearing and no explanation was offered for his absence Accordingly, Hardenberg's testimony was undenied and is credited - - - 56 Patricia did not deny the conversation , and Heller is credited as to what was said 51 The record establishes that Caruso made the decision to terminate Sheehan and there exists no record evidence to controvert that fact 58 I do not rely upon the corroborative evidence of Ralph Fattore as to the discharge of Sheehan In particular , I do not believe Fattore ever spoke to the salesman about his lack of sales and credit Sheehan's denial of such - 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unlikely, as -Sheehan asserted,- that Caruso would have invented another explanation (Sheehan taking upon him- self too many management functions) for the discharge when the obvious one, that which was raised at the hear- ing, was' readily apparent and available. Finally, and the most persuasive factor, Sherman Rothman who, of all the witnesses at the hearing, impressed me as being the most candid and forthright exhibited no discernible bias for'Respondent or against Sheehan, and is credited at all times herein, corroborated Caruso that the latter consid- ered terminating Sheehan prior to'the onset of the union activities, testifying that at the time of his hiring inter- view in mid-October Caruso told him there would soon be vacancies in Respondent's sales force and specified Sheehan as a salesman he was "'planning to let go." In these circumstances, I credit the testimony of Tony Caruso to the extent that he decided to discharge. Shee- han prior to the commencement of the union activity, that such was based on the latter's admittedly poor sales record, and that such was the reason given by Caruso to Sheehan on the latter's discharge and conclude that Re- spondent has established that it would have terminated Sheehan for legitimate reasons notwithstanding the exist- ence of unlawful • considerations. Thus, I shall recom- mend that the consolidated amended complaint allega- tions as to the discharge of Sheehan be dismissed. Turning to Respondent's asserted justifications for the terminations of Michael Heller and Robert 'Stokes, I note that such are solely'dependent on the testimony of Ralph Fattore, who, as I previously stated, impressed me as a witness entirely. lacking in candor. Specifically, as to Heller's discharge, there is no dispute that at the time of his discharge interview Heller was given as the reason by Fattore the "heat" generated by the DMV over the problems created by Heller's 'admitted promises while selling a car to Elizabeth Friedman. Heller testified that .at the time of his termination he believed all the Fried- man problems had been resolved and he had no knowl- edge of any continuing DMV difficulties. With regard to the latter point, other than Fattore's unreliable assertions, there is no direct.evidence of such lingering problems; DMV investigator Patricia Denny was not called as a witness by Respondent to corroborate Fattore nor was this failure explained; and Patricia Sullivan averred that DMV complaints are commonplace-filed by customers .all the time", and just "blow over in a couple of months." Further, I note the, at least, 10-day gap be- tween Fattore's last contact with the DMV (at which time he assertedly made the discharge. decision) and Heller's.termination. Fattore's explanation that he "kind of liked Michael personally" and "wanted to give him an opportunity to make his qualifier" is not credible-Fat- tore failed to impress me as being a magnanimous indi- vidual, and such is not nearly convincing enough to overcome the more onerous implications attendant to the timing of Heller's discharge. Regarding the termination of Stokes, Fattore's testimony that his decision to do so was based on Stokes' continued practice of missing work, coming in late, and drinking on the. job was un- controverted. Nevertheless, -I place no reliance on his testimony. Thus, I note that Stokes had been terminated on two prior occasions for the very same reasons and promptly.., hired back by Respondent, his employment status was likened to that of a "revolving door." There- fore, Respondent seems to have condoned Stokes' behav- ior in ' the past, and there is no evidence, beyond Fat- tore's assertion that it was time to start cleaning house, that Stokes' behavior had worsened' at the time of his discharge. Further, as with Heller, the discharge decision was allegedly reached, 'at least,' 10 days prior to the actual discharge on October 31; however, Fattore's ex- planation 'for the, delay in implementing it (because ,Stokes "was kind of a live wire") appears strained and rather incredible when considered against the com- mencement of the union activities. For the above rea- sons , and the 'record as a whole, I do not believe that Respondent established that either Heller or Stokes would have been terminated notwithstanding the exist- ence of unlawful considerations, and I, therefore, find that both were terminated by Respondent on October 31 in order to nip the union organizing campaign in its bud, in violation of Section 8(a)(1) and (3) of the Act. Michael Heller accepted Respondent's offer of rein- statement, returned to work on November •7, voluntarily quit the next day, and, there is no dispute, sought to be rehired by Respondent about November 20. A day or two later, he spoke to Lionel Sullivan; it is the General Counsel's- theory that the latter refused to rehire Heller and, in so doing, cited unlawful considerations. With regard to the substance of their conversation, I note that the respective versions of Heller and Sullivan are diver- gent, necessitating a credibility resolution. In this regard, 'while I found both witnesses to have been candid and forthright during much of their testimony, I credit Heller over Sullivan in this instance. I do so inasmuch as the latter's version was susceptible, in pertinent part (particu- larly regarding the reasons assertedly cited by Sullivan for refusing to rehire Heller), of corroboration. Yet, Caruso, who did offer testimony in the area, failed to corroborate Sullivan, supporting the inference that he could not do so. Therefore,' I must conclude that Sulli- van fabricated his version of this latei-Novembe'r conver- sation with Heller, and, crediting the latter, the record evidence is that Sullivan told Heller he could not then hire him back for work at Respondent's facility as "Tony had hired extra people and he didn't need me anymore" and "he felt that we should wait for the [union issue] to be resolved before he could consider me coming back to work."59 Given the fact that Heller had previously been terminated, I believe, in an effort to thwart the nascent union organizing drive and reinstated only to limit Re- spondent's financial liability, a reasonable inference from what Sullivan told Heller, a suspected leader of the cam- paign, is that Respondent would.not consider him for rehire until the union movement among its salesmen had dissipated. Accordingly, I find that Respondent thereby further violated Section 8(a)(1) and (3) of the Act by re- fusing to rehire Michael- Heller. 5° 69 This conclusion is buttressed by Sullivan's admission that he told Heller he could return to work at the Toyota facility after matters settled down 80 I deem the offer of a job to Heller at Sullivan's Hayward facility of no more consequence than the latter 's recognition of Heller's sales ability • DOWNTOWN TOYOTA With regard to whether the General Counsel has es- tablished a prima facie violation of Section 8(a)(1) and (3) of the Act in the discharge of John Hardenberg, the record establishes that he attended the union meeting at Celso DaSilva's- house and executed an authorization card for the Union the next morning, October 31. As to whether Respondent knew of or suspected Hardenberg's own -involvement in the union movement, there is no record evidence of such. However, based upon asserted comments made to him by Brenda Brown and the late Rich Miraglio, he testified that Respondent was aware of his membership in the Union. As to Brown, she admitted that she interrogated Hardenberg regarding his-union in- volvement and the latter always replied he was paying his dues. Based upon her conduct herein, I believe it likely she reported this fact to Fattore.81 As to Miraglio,-• he assertedly reported to Hardenberg that- Sullivan la- mented to the former "he wished I wasn't a member of the union or I would still be at.the store." While I have previously credited uncontroverted testimony from Har- denberg, I do not credit this portion82 or any other which is in conflict with that of another witness. In gen- eral, Hardenberg failed to. impress me.as testifying in an honest and forthright manner; in particular, I note his in- consistent and 'contradictory testimony regarding. his No- vember conversations with Lionel Sullivan., As to the matter of animus , I note, initially, that Hardenberg's dis- charge occurred 1 month after the earlier terminations. Therefore, the timing of his termination is really not a factor in bolstering the General, Counsel's position and, in fact, is a detriment. Next, crediting, as I do, Sullivan's account of his discharge conversation with Hardenberg, I find that there was no mention of the Union, Harden- berg's role in the organizing campaign, or his member- ship in the Union. Rather, Lionel Sullivan was con- cerned only with Hardenberg's suspected involvement in the unlawful curbing of the MG automobile and; as a result of such, gave the latter ,an ultimatum-resign, or be terminated. The above is not to suggest, however, there exists not a modicum of record evidence establishing un- lawful motivation. To the contrary, I believe the record establishes that subsequent to ridding itself of the sus- pected union instigators, Heller and Stokes, Respondent 61 I do not believe that Brenda Brown can be considered to have been an agent of Respondent for matters involving the Union Thus, she was not actually an employee of Respondent and worked at Respondent's fa- cility no more than 2 days per week Further, she received no compensa- tion directly from Respondent nor did she participate in any employee benefits The most significant evidence of her agency status, based on the testimony of John Hardenberg, came from her own assertions that she was asking him questions about the Union for Fattore and Sullivan and that they wanted her to be their "ear" at the facility She never denied making these statements , but even if true, it has long been Board law that agency may not be established merely by the words of the alleged agent Railway Clerks (Marse Tarr & Baggage), 174 NLRB 1 (1969) Neverthe- less, I believe it likely that she reported to Fattore with regard to what Hardenberg responded to her questions about -his union involvement- that he paid his dues This finding is based on her admission that she re- ported to Fattore about the union meeting to be held at Celso DaSilva's house and that she considered such important No doubt , she sought to further ingratiate herself with Fattore by telling him the results of her admitted interrogations of Hardenberg-not necessarily as his ear 62 I note that both Patricia Sullivan and George Holden were alleged as agents of Respondent Further Hardenberg's assertions as to Miraglio were only admissible as an exception to the hearsay rule. 1017 continued an effort to•halt the union movement. As will be explored in greater detail, infra, Respondent unlawful- ly solicited and corrected grievances of the salesmen, un- successfully instigated an antiunion petition drive, and warned the salesmen of potential adverse consequences of supporting a union . Further, shortly after •Hardenberg was given the above 'ultimatum , Ralph Fattore told Arthur Francis, whom I credit, that the latter need not worry about a union at Respondent's facility "and that he didn't want any unions for automobile salesmen " Bearing in mind the Board's admonition that it will not "quantitatively analyze" the effect of unlawful motiva- tion and based on my belief that Respondent was aware of Hardenberg' s existing membership in the Union, I be- lieve that the General Counsel has established a prima facie violation 'of the Act regarding his discharge. Having so concluded, I also believe that Respondent would have discharged Hardenberg notwithstanding any unlawful considerations: Thus, in his . initial , conversation with Lionel Sullivan, who, I believe, in good faith be- lieved Hardenberg was involved, the latter confirmed what Sullivan already knew with regard to Hardenberg's role in the MG sale-that he delivered the car to the buyer and that he gave her the Toyota Corolla, as a re- placement for the wrecked Buick. Further, I credit Sulli- van, who appeared to be testifying candidly on this entire subject,63 as corroborated in this instance by Tony Caruso, that, upon being accused, despite his protesta- tions to the contrary, of being involved in the curbing in- cident, Hardenberg averred that "for $75 I get in all this .kind of mess." Significantly, the latter did not deny- this comment , and it surely confirmed for Sullivan that Har- denberg had, in fact, participated in-and, indeed, profit- ed from-the MG affair. In this regard, my impression, from observing his demeanor while testifying as to his version of what occurred, was that Hardenberg was not divulging all that he -knew or did. Support for this view came from comparing his testimonial account-of his in- volvement with what he testified he told Sullivan as to his role in selling the MG and thereafter. In the former, there is absolutely no reference to him giving the buyer the Toyota Corolla as a replacement for the wrecked Buick. 'Also, I found unconvincing his explanation for the gap in time between his last act involving the sale of the MG and his "confession" to Sullivan. In-any event, Sullivan , who considered what' was done as theft, is credited that Rich Miraglio requested that he be lenient toward Hardenberg, that he terminated Bill Larkin and George Holden over their respective roles-in the curbing incident, but that he decided to accept Hardenberg' s-res- ignation , in lieu of termination, based on his age and more limited role. In this regard, I credit Sullivan over Hardenberg as to what was said during their final con- versation. In short, Respondent, I believe, has established that Hardenberg would have been discharged notwith- standing the above unlawful considerations, and •I shall recommend that the 8(a)(1) and (3) allegations in the 63 It is, of course, not uncommon to believe portions of a witness ' testi- mony and to disbelieve others Such has been the long accepted preroga- tive of the trier of fact Flatiron Materials Co, 250-NLRB 554, 558 fn 7 (1980) (cases cited therein) 1018 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD consolidated amended complaint regarding his discharge be dismissed.64 Turning to the alleged violations of Section 8(i)(1) of the Act set forth in the consolidated amended complaint, I have previously credited the testimony of Michael Heller that, on the morning of October 31, Ralph Fat- tore who, I have previously concluded, learned of the union organizing campaign the night before called him into his office at Merit Pontiac and asked what, was going on. Heller admitted the union movement, and Fat- tore continued his interrogation, asking who was the in- stigator and was it "Frank," referring to Frank' Sheehan. Such interrogation in, the private office of Respondent's partner and ' of an individual not previously known, to Fattore as a union adherent65 is coercive and violative of Section 8(a)(1) of the Act. Second Federal Savings, 267-, NLRB 911 (1983).86 After Heller said that all the sales- men were involved, Fattore averred that they would not win and warned "it's only going to hurt you guys" and "I'll make more money and you guys will -make less" Such threats of unspecified reprisals and/or of the futility of organizing a union constitute violations of Section 8(a)(1) of the Act. Saint Luke's Hospital, 258' NLRB 321, 322 (1981): Later that day, Used-Car Manager Holden telephoned Hardenberg, and it was uncontroverted that the former interrogated Hardenberg in an undisguised effort to ascertain the scope and leadership of the union campaign , asking what was going on , who was involved, what did Hardenberg know about it, was he involved, and were either Stokes or Heller the organizers. Of course, such unwarranted interrogation of an individual, not known to be a union adherent, is coercive and -viola- tive'of Section 8(a)(1) of the Act. Second Federal Savings, supra. - • 84 Relying primarily on NLRB v Burnup & Sims, 379 U S. 21 (1964), the General Counsel asserts that Sullivan 's good-faith belief that Harden- berg was implicated in the MG sale is an irrelevant consideration-"It is well settled that an employer who discharges an employee with the good-faith belief that the employee had engaged in misconduct outside the purview of Section 7 of the Act, violates the Act if the employee was concurrently engaged in protected activity and the employee did not, in fact, commit the suggested offense " Such is a serious misreading of the law Thus, in a Burnup & Sims, type situation the alleged misconduct and the protected concerted activity must involve the same conduct I doubt that , in this case , counsel means to suggest that the theft of the proceeds from the sale of a car constitutes protected activity Also, I have credited Sullivan that Hardenberg admitted-his involvement in the affair•to him 65 The situation in Rossmore House, 269 NLRB 1176 (1984), is distin- guishable as therein the Board was confroiited with the innocent ques- tioning of a known union adherent Such is not the ease herein as Fat- tore, I believe, was embarked upon a campaign to squelch the union or- ganizing campaign and was attempting to ascertain both its scope and leaders. Fattore admitted interrogating two individuals, Gus Colson and Matt Grunke, both employed by Downtown Auto Center , as to what they had heard about the union activity at the Toyota facility Neither was a known or avowed union adherent, and there appears to have been no le- gitimate explanation for the questioning Although not specifically al- leged in the complaint, similar acts are plead and the matter was fully litigated at the hearing I find the admitted conduct - violative of Sec 8(a)(1) of the Act 66 Based on the credited testimony of Frank Sheehan , the record es- tablishes that , in November , Fattore called the former into his office, asked why he and the other employees were upset , and also asked if Sheehan and Heller had been behind the union movement. Sheehan was ,never known to be a union adherent and, as there was no legitimate pur- pose to this questioning , such interrogation violated Sec. 8(a)(1) of the Act. The consolidated amended complaint attributes several alleged violations of Section 8(a)(l) of the Act to Patri- cia Sullivan.67 Initially, with regard to her luncheon meeting with Michael Heller on November 1,68 the day after the latter's termination, noting the similarities in the versions of both, I credit the testimony of Heller as to what was said and done. Thus, I previously found'him to be a reliable witness and,69 between Patricia and him, Heller appeared to be more credible and candid. Accord- ing to the latter, during the course of their lunch and a subsequent conversation in Sullivan's office, Patricia said her father was upset by what happened and asked how the employees had "come to seek union representation. Heller said that the salesmen were attempting to protect themselves. She replied that labor unions do no good "and that we can resolve it without a labor union." She continued, stating that unions just cost money and that the salesmen did hot-need a union to "get the issues re- solved." Patricia mentioned that she did not like unions and that she had been involved in removing a teacher's union from representing her. Thereupon, according to Heller, Patricia suggested a solution to the salesmen's problem-drafting a document, signed by all the sales- men, which would state that they could resolve their problems without a union and would ask the Union to "beg out." Heller expressed doubt; However, upon re- turning to Patricia's office, she drafted the language of General Counsel's Exhibit 14. I find Patricia's interroga- tion of Heller as to why the salesmen sought union rep- resentation to be violative of Section 8(a)(1) of the Act. Thus, Patricia did not know, nor had Heller ever re- vealed, his role in' the' organizing campaign; this fact and consideration of the entire conversation establishes the coercive character of the interrogation. Next, it is al- leged that, by her comment, Patricia unlawfully implied- ly promised to remedy the salesmen's.complaints and un- lawfully raised the spectre of the futility of organizing. I find no' mei it to - either allegation. As to the former, merely stating to an employee' that he does not need a union ' to resolve his problems does not rise to the level of a promise, implied or otherwise, to do so. As to the latter, I fail to see how mentioning'her own-past experi- ence with a union would suggest to an employee the fu- tility of organizing or belonging to a union. However, with regard to her alleged unlawful initiation of a revo- 87 It is alleged in the complaint and argued by the General Counsel that Patricia's uncontroverted comment to Michael Heller shortly after- he was fired, "Well, you didn 't have to make all of those phone calls," is violative of the Act While I find the comment to have been made, I find it too cryptic to be violative of Sec 8(a)(1) In this regard, I note that there is no evidence that any , supervisors, let alone Patricia Sullivan, were aware Heller made any telephone calls to the Union Further, any contacts he had with other Downtown Auto . Center salespeople that day were in person and not by telephone Thus, the meaning of her comment is not at all clear 68 Based on Heller's testimony , the fact that Patricia placed their lunch conversation the day after she learned of the- union organizing campaign and as I believe she became aware of such on October 31, and on the record as a whole , the inference. is,warranted that the conversation oc- curred on Tuesday , November 1 89 For example , Patricia testified that Heller said at the outset of the conversation he had just been fired On being told that the parties stipu- lated that the firing had been on October 31,-she changed her testimony, stating Heller said he was asked to leave the budding DOWNTOWN TOYOTA 1019 cation petition, the record is clear that Patricia not only ginning, according to the credible testimony of Sherman suggested the idea of such to Heller but also drafted pro- Rothman, with the admonition that he felt personally posed language, for this petition. While. Heller did not hurt that the salesmen had not approached him first re- pursue the matter, Patricia clearly exceeded the mainte- - garding.their grievances. Thereupon, he requested that nance of a neutral position so as to have acted- in viola- the assembled workers inform him of their complaints. -tion of Section 8(a)(1) of the Act. Texaco, Inc., 264 - These were delineated, with the major one concerning NLRB 1132, 1133 (1982); 7-Eleven Food Store, 257 - their work schedules and the salesmen's desire for split NLRB 108, 117 (1981).. - work shift.. There is no dispute that Caruso immediately A few days later, Patricia met with the salesmen in an implemented a -new split work shift schedule, specifically upstairs office at Respondent's facility. During the course to accommodate the aforementioned complaint. Based on of said meeting, it is alleged,,she threatened the loss of the foregoing, I find that, by stating he was personally lease ' sales if the facility were to unionize. As to this, hurt by the salesmen going to the Union and not coming Sherman Rothman, who at all times was a most impres- to him-first, Caruso equated disloyalty' to their high level - sive witness, testified that Sullivan said she would not be supervisor with engaging in protected concerted activi- able to handle leasing with u's if the store went union be- ties and, thereby, violated Section 8(a)(1) of the Act. Vir- .cause she functions out of-all the dealerships and, being acon,'Inc., 256 NLRB 245 (1981). Further, in requesting nonunion, she would not be able to help Respondent's that the salesmen inform him of their complaints, Caruso salesmen. On its surface, such might indeed appear to - unlawfully, in violation of Section 8(a)(1) of the Act, so- constitute a threat of lost commissions on lease sales . licited their grievances in the-inidst of a union organizing However,' it is evident that the assembled salesmen inter- campaign. Penn -Color, Inc., 261 NLRB 395, 406 (1982). preted her remark as meaning she could no longer in- That the compelling inference that Caruso thereby im- volve herself in 'lease sales at Respondent's facility, illicitly piomised to correct said inequities is warranted is meaning that the salesmen would have to perform such manifested by his immediate implementation of the major sales on their own and that they would earn larger 'prof- grievance-a split -shift schedule. There was no affirma- its, not having to share said sales with Patricia. This is tive showing of some legitimate business reason for the so, for, according to Rothman, the men whispered as timing of this, significant change70 in the salesmen's much among themselves after. Sullivan's comment. terms and conditions of employment, and- l find it to be Therefore, at the least, Patricia's comment appears to be an unlawful interference with employee rights, coincid- ambiguous and, at the most, a statement of noninvolve- ing as . it did with the salesmen's union activity, and viola- ment, enthusiastically greeted by the salesmen. Such was not tive'of Section 8(a)(1) of the Act. Ace Hardware Corp, perceived as a threat and will not be found violative 270 NLRB 1174 (1984) Knogo Corp., 262 NLRB 1346 of Section 8(a)(1) of the Act. While Rothman denied that (1982); Lake Development Management Co., 259 NLRB Sullivan suggested any methods for undoing the Union, 791. Patricia admitted that she "may" have suggested that the Respondent's changes in employee working conditions salesmen go to the Union and say they no longer wished to be members.-Such,• I believe, constitutes soliciting em- did not end with Caruso's conduct. Thus, Sherman Roth- ployees to abandon the Union in violation of Section man, who is credited' at all times testified that in Novem- 8(a)(1) of the Act. Paul Distributing Co., 264 NLRB 1378 ber or December Lionel Sullivan conducted a meeting (1982). Also, Dan Pope, who also attended the meeting, for Respondent's salesmen and distributed a document, testified that Patricia raised the subject of the salesmen - listing their terms and conditions of employment effec- doing something if they no longer desired union repre- tive January- 1, 1984. Among these, according to Roth- sentation and, in so doing, mentioned the petition previ- man, were a new special monthly bonus, a $100 increase ously discussed with Heller. I believe; for the reasons in the bimonthly draw against sales commissions, a new stated above, that such was also violative of Section paid vacation policy, and a,, new Christmas bonus. Roth 8(a)(1) of the Act. Finally, -the General Counsel asserts man 's testimony that these items represented new or that inasmuch as Sullivan-repeated her warnings of the changed employee benefits was uncontroverted and is futility of organizing at this meeting as were uttered by credited: Further, he is credited as to the timing of Sulli- her during the lunch with Heller- findings-should be van's announcement of the changes and, given the Ian- made that such are likewise violative of the Act. Howev- guage of General Counsel's Exhibit '14, I find that such er, I found no basis for. such a finding previously, and were implemented no later than January 1, 1984. Coming there is no sufficient evidence for such a finding based • shortly -after Fattore told a job applicant that Respondent on her comments at this meeting. : would - not have a union, as with the implementation of During the course of his testimony, Sales Manager the split work shift schedule' occurring coincidental or Caruso admitted that during the week subsequent to the just after the start of the union activity, I believe the discharges of Heller, Sheehan, and Stokes he interrogat- General Counsel has established a prima facie case of ed the- remaining salesmen'as to why they were unhappy wrongful interference and coercion by 'the implementa- and as to why they sought union representation. There - could be no legitimate employer purpose behind such , 70 I emphatically reject- Respondent counsel's contention that said questioning ; therefore, Caruso's questioning of the sales - change constituted a mere "minor adjustment" in the sales force's terms men violated Section 8(a)(1) of the Act. -Saint Lukes Hos- and conditions of employment Thus, I note that such was clearly consid- ered a significant matter by the salesmen , effectively remedying what, for petal, supra at 321. At 'the start of the next week, them, had been a serous imtant and a factor in their seeking union repre- Monday, November 7, Caruso held a staff 'meeting, be- sentation in the first instance' 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of these -changes and benefits, and the burden shifted to Respondent to show that such would -have been grant- ed had the Union not been a factor. Knogo Corp., supra at 1348. I do not believe such a showing has been made. Thus, Lionel- Sullivan testified only that a promise of vague changes 'at some unspecified point •in the-future was made to the Downtown Auto Center salesmen early in 1983. There is.-not a scintilla of record evidence that any of the above four items was under consideration prior to the commencement of the organizing campaign. Further, and in view of -my. finding as to the -- timing of the changes in benefits, I deem of no consequence the at- torney's letter of December 29 and Salvaressa's vague reply of January 6. Clearly,_ whatever unmentioned changes were addressed by the attorney's letter were a fait accompli at that point. Accordingly, I find the imple- mentation of the new monthly bonus,- the increase in the bimonthly draw against commission, the paid vacation policy, and the Christmas bonus to. have been violative of Section 8(a)(1) of'the Act. Knogo Corp., supra; Lake Development Management Co, supra. Finally, it is alleged in the consolidated amended com- plaint that Lionel Sullivan violated Section 8(a)(1) of the Act by informing a job applicant that he could not be hired by Respondent until- the situation with, the Union was resolved. -I have previously credited the testimony of Michael Heller that when he spoke to Sullivan regard- ing reemployment by Respondent, the latter gave as a reason for refusing to rehire Heller, "he felt that we. should wait for the [union issue] to be resolved before he could consider me coming back to work." I have also found that. such considerations caused the refusal to rehire Heller- to be violative of the Act. Likewise, by in- forming Heller that the, union activities in which he had been a primary participant was, in effect, a reason for not rehiring him, Respondent,. through Sullivan; acted in vio- lation of Section •8(a)(1) of. the Act. Haco Engineering Co., 265 NLRB 27 (1982). C. Whether a Bargaining Order is an Appropriate 'Remedy in These Proceedings - ' There is no dispute that as of October 30 Respondent employed the following salesmen at the Toyota facility: Michael Heller, Richard , Heller, Dan Pope, Robert Stokes,-Frank Sheehan, Sherman 'Rothman, Celso Da- Silva, and John Hardenberg. Respondent concedes that, on October 31, a majority of its salesmen designated the Union as their representative for purpose- of collective bargaining . Indeed, the record establishes that all of the above-named individuals executed authorization cards for the Union by 10 a.m. on this date.7 i Nevertheless, coun- sel for Respondent asserts that the Union's majority status is called-into question-as the result of the efforts of four of the salesmen-Rothman, Pope, DaSilva,, and Richard Heller-to "retract" their signed authorization cards. Contrary to counsel, I find no merit to such a con- tention . Initially , in this regard, I note that none of the four decided to retract or revoke his designation of the 71 In its answer , Respondent admitted that a unit of all Respondent's full-time and regular part-time automobile salesmen constitutes an appro- pnate unit for purposes of collective bargaining Union-as'his majority representative. Even-if.such deci- sions were, -in part, influenced by Richard Salvaressa's statement that they could not have their cards returned, such is of little significance, for the Board has long held . that attempted . revocations of authorization cards subse- quent to the date on which a labor organization demands recognition (herein such occurred on November 1) do not render said cards invalid for the- purposes of estab- lishing said labor organization's majority status at least as of the demand date. Photo Drive' Up, 267 NLRB 329, 364 fn. 224 (1983); Payless, 157 NLRB 1143 (1966). Further, notwithstanding the denial of David Pope on -which, given Pope's apparent testimonial bids for Respondent, I place no reliance, I note that the attempted 'retra ctions of the authorization cards by the four salesmen occurred within a day or two of their meeting with Patricia Sulli- van-a meeting at which Respondent's agent unlawfully solicited them to so act. The coincidence of the" two events suggests a cause and effect relationship, and Re- spondent may not profit therefrom. Accordingly, I find that the Union was the majority representative of Re- spondent's salesmen as of October 31, the day on which Respondent's - unfair labor- practices commenced,72 -and that said status continues. - In their brief, the General Counsel argues that, in order to appropriately remedy Respondent's unfair labor practices, a bargaining order "is virtually mandated," for the holding of a fair election has been'precluded. In de- termining whether the 8(a)(1) and (3) violations in which Respondent engaged warrant the issuance of a bargain- ing order, I am guided by the test set forth in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Therein, the Court described two types of situations where.such an order would be appropriate: (1) "exceptional" cases marked by "outrageous" and "pervasive" unfair labor practices and (2) "less extraordinary" cases marked by "less pervasive" conduct. -Id. at -613-614. In the latter type cases, there must be showings that the labor organi- zation enjoyed majonty status "at one point," and that "the" employer's unlawful conduct has.a "tendency to un- dermine [the Union's] majority strength and impede the y, Inc., 267election processes." Id. at 614; Mel's Batter NLRB 420 (1983). Among the factors, the Board' may consider in cases where the unfair labor practice conduct is less flagrant,are Gissel, supra at 614•-615: [T]he extensiveness of,an employer's unfair conduct in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the -possibility of erasing the effects of past practices and of ensuring a fair-elec- tion by the use of traditional remedies . . . is slight, and that employee sentiment once expressed through cards would, on balance, be better protect- ed by a bargaining order, then such an order should issue. - 72 Of course, the Union demanded recognition as the bargaining repre- sentative of a majority of Respondent's salesmen on November 1 There can be no question , even taking into account the not unlawful termination of Frank Sheehan on the previous day, that the Union did enjoy majority status on this date - - DOWNTOWN TOYOTA 1021 Upon -consideration of all the evidence and the record as ent is any more receptive to their union activities than in a whole, I believe that the unfair labor- practices Re- October and November 1983 as such will be accom- spondent committed were neither so outrageous nor per- plished under duress. Gentile Pontiac, supra. In weighing vasive so as to fall within the first category described in the appropriateness of a bargaining order, of even more Gissel and that these proceedings involve the second cat- significance than the two discharges may be the conduct egory or. less extraordinary unfair labor practice conduct. of Sales Manager Caruso in soliciting and remedying the Several factors convince me that the issuance of a bar- grievances of the salesmen. Thus, not-only did he admit- gaining order is an appropriate remedy. tedly interrogate the salesmen as to why they were un- At the outset, without regard to the seriousness of happy and had sought union representation and' "re- such, the timing of Respondent's unfair labor, practices quest" their complaints but also Caruso immediately rem- "indicates a concentrated effort to nip union organization edied what had been one, of the salesmen's. principal in the bud." NLRB v. Circus Circus, 656 F.2d 403, 406 grievances,. and a major reason why they went to the (9th Cir. 1981); Martin City Ready Mix, 264 NLRB 450, Union-their long work hours: in my view, more than 451 (1982). Thus, I have found that Respondent's unlaw- any one single act, the institution of split shifts by Caruso ful campaign commenced the morning after becoming "will -have a lingering effect, since [the salesmen] will be aware of the effort to organize a union and scant hours reminded of Respondent's action whenever [work hours after the salesmen actually executed authorization cards are discussed] . . . and are likely to communicate to any on behalf of the Union. Further, I note that the most se- rious new [salesmen] the manner in which the [split shift of the unfair labor practices were committed by schedules] were obtained. Penn Color, Inc., supra at 396; Respondent's highest level management officials: the two Viracon, Inc., supra at 247. Finally, with regard to the partners , Sullivan and Fattore , and its sales manager nature and seriousness of the unfair labor practices Caruso. "The positions these people held clearly served herein, I note the unlawful changing of the salesmen's . to reinforce and-increase in the minds of [the salesmen], terms and conditions of employment by Respondent in the seriousness ss o of the [conduct] M el's Battery, or December through implementation of an Inc., supra at 421. Next, regarding.the nature of the more serious unfair labor , practices committed , Respondent un-. ' increase in the monthly draw against commission, a new lawfully, and abruptly, terminated two of the three sus- monthly bonus, a new paid vacation policy, and a new pected instigators of the union campaign, Michael Heller . Christmas bonus. I find that such conduct had the effect and Stokes, and subsequently refused to rehire Heller of demonstrating to employees that Respondent, rather based on the suspected effect such would have upon the than any labor organization which would have the ob- organizing effort . The timing of the discharges clearly - taining of said benefits as its overriding purpose for exist- constituted a message Respondent meant to convey to ence, represented the font from which all benefits flow. the remaining salesmen-the price of continued support Further, such conduct affected all' unit members- and for- the Union was immediate and severe - punishment. was, therefore, pervasive in its impact. Apple Tree Chev- Gentile Pontiac, 260 NLRB 429, 434 (1982). Both the rolet, 237 NLRB 867 (1978). Board and the courts have long emphasized the serious- By the foregoing, I have demonstrated how Respond- _ ness of such misconduct as going "to the very heart of ent engaged in serious violations of Section 8(a)(1) and the Act." NLRB v. Entwistle Mfg Co., 120• F.2d 523, 536 (3) of the Act, designed to destroy the organizing efforts (4th . Cir. 1941); DeQueen General Hospital, 264. NLRB of its salesmen . An interesting case Bearing on the pro- 480, 499-500 (1982); Penn Color, Inc., 261- NLRB 395, - priety of a bargaining order remedy herein is Kay 396 (1982); Avis Rent-A-Car, 260 NLRB 955, 957 (1982). Motors, 264 NLRB 1030 (1982). In that case, concluding The fact that Respondent offered -reinstatement to Heller - - that such a remedy was unnecessary, the Board noted and Stokes shortly after their respective discharges does the absence of what it termed "hallmark" violations of not mitigate either the seriousness nor the lingering ef- the Act: "Respondent did not grant significant benefits to fects of the actions. Thus, such was not undertaken in employees. ...Nor did Respondent discharge . . . any recognition of the.illegality of the conduct and there is . employees . . . because of the employees' union activi- no evidence that-Respondent paid to either discriminatee ty." Id. at 1031. Such conduct, of course, is present his lost back wages or that Respondent ever recanted - its herein and. convinces me that Respondent 's acts - were unlawful conduct toward either. Mel's Battery, Inc., supra . calculated to have'both an immediate and a long lasting at 421. Also, reinstatement is never likely to have the impact on its salesmen , the result of which would under- same lasting and telling effect upon employees as the fact mine the Union's asserted majority support. In sum, I be- that their employer was willing to resort to such extreme . lieve that-the lingering effects of Respondent's past con- measures as termination to defeat a union in the - first duct render uncertain the possibility that the imposition place. Honda of San Diego, 254 NLRB 1248, 1269 (1981). of the conventional cease-and-desist, reinstatement, and Further, it is evident that Respondent's reinstatement of backpay orders and the posting of notices to remedy the Heller and Stokes meant little, vis-a -vis the dissipation of . unfair labor practices would permit the holding of a fair its unlawful animus , because just 3 weeks later it denied election and , in such circumstances, further believe that a rehire to Heller at the Toyota facility in consideration of more reliable test of employee representation desires was its effect upon the continuing union campaign. In such the October 31 designation, through executed authoriza- circumstances, the future return of Heller to the Toyota tion cards, of the Union by a majority-in fact, all-of facility via the standard reinstatement order will provide Respondent 's salesmen as their representative for purpose little assurance to the remaining salesmen that Respond- of collective bargaining . Mel's Battery, Inc., supra at 422. 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The necessity for such is-even more compelling herein in view of- the relatively small size of the bargaining -unit. Circus Circus, supra. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning --of Section 2(2),. (6), and (7) of the Act. - - 2.-The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following employees of Respondent constitute a' unit appropriate for bargaining-'within the meaning 'of Section 9(b) of the Act: 12-By informing a job'applicant that he would not be hired-.because of employees' Section 7 activities, Re- spondent engaged in conduct violative of Section 8(a)(1) of the=Act. . -13. By informing employees that engaging in union ac- tivities constituted disloyalty to a high-level supervisor, Respondent- engaged 'in conduct violative of Section 8(a)(1) of the Act. 14.- The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and-(7) of the Act. 15. Unless', specified above, Respondent engaged in no other unfair labor practices. All full-time and regular - part-time automobile - salesmen ; excluding office clerical employees, fi- nance and insurance managers, lot boys, parts and - lubrication employees, guards and supervisors as de- fined in the Act: ' - - 4. Since-October 31, 1984, and continuing thereafter, the Union has represented a majority of the employees in- the above-described ;appropriate unit._• 5. By discharging employees Michael 'Heller, and Robert Stokes and by,- subsequently, refusing to rehire Heller because it knew or, suspected their respective roles in 'a union organizing campaign, Respondent, en- gaged in conduct violative of Section 8(a)(1) and (3) of the Act. _ 6. By interrogating employees as to the union activities of themselves and their fellow employees, Respondent engaged in conduct violative, of Section 8(a)(1) 'of, the Act. - - 7. By threatening employees with unspecified reprisals and with the futility of -organizing a union, Respondent - engaged in conduct violative of Section 8(a)(1) of the Act.' _ . „ 8. By .soliciting and len-diiig support to the idea of a - petition by which 'employees,, would revoke their' support for the Union, Respondent- engaged in conduct violative of Section 8(a)(1) of the Act. - ' 9. By soliciting employees to go to the Union and re- nounce their support thereof, Respondent engaged in conduct violative of Section 8(a)(1) of the Act. 10.' By soliciting the grievances of employees' and'im- mediately implementing changes in employees ' terms and conditions of employment in response thereto, Respond- ent engaged in conduct violative of Section 8(a)(1) of the Act: - ' - 11. By implementing changes in employees ' terms and ' conditions of employment in order ' to induce them to abandon their support of the-Union , Respondent engaged in conduct violative of Section 8(a)(1) of the Act. 73 79 Inasmuch as each of the implemented changes in the salesmen's working conditions -represented an increased benefit, there would be no necessity of an order requiring Respondent to restore conditions to the status quo ante . Further, the order herein will require Respondent to bar- gain over any future changes in the terms and conditions of employment of the salesmen Accordingly, I need not reach the issue or decide wheth- er Respondent's implementation of the November or December 1983 ben - efit changes also constituted unilateral changes violative of Sec 8(aXi) and (5) of the Act. THE REMEDY ' Having found that Respondent has engaged in certain serious unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take cer- tain affirmative, actions necessary to effectuate the poli- cies of the Act. Initially, as I found Respondent's unfair labor practices to have been pervasive, serious, and to the very essence of the Act, I shall recommend that the cease and desist order be broadened to require Respondent to cease and desist- from, in. any other manner, interfering with, re- straining , or coercing its employees in - the exercise of their Section 7 rights.74 - Having found that Respondent - unlawfully discharged Michael- Heller and Robert Stokes on October 31_1984, and offered reinstatement to each on or about November 5, I shall recommend. that -Re- spondent make each whole for any loss of -earnings re- sulting from the discrimination , less any interim earnings, with the backpay and interest thereon computed in-the manner . prescribed by the Board in F. W. Woolworth Co, 90 NLRB 289 (1950), Florida Steel Corp., 231 NLRB.651 (1977).75- Having found that Respondent unlawfully re- fused to rehire Heller on or about November 22, 1 shall recommend that Respondent be ordered to offer him im- mediate reemployment in- his former position, or if said position no longer exists , in a substantially equivalent po- sition, without • loss of, seniority or other benefits and make him whole for any loss of earnings - suffered by reason of the unlawful discrimination against him by pay- ment to him of backpay equal to • what he would have earned from Respondent for the period November 22,- 1983, until -the date of, an unconditional offer of reem- ployment by Respondent, less any interim earnings, with backpay and interest thereon computed in the manner set forth above. Finally, in view of Respondent's serious, ex- tensive, and pervasive unfair labor practices which, I be- lieve, were calculated to destroy the union organizing campaign and the Union's suspected, and claimed, major- ity status, and as I am persuaded that the application of traditional remedies 'for the said unfair labor practices will not eliminate the lingering and coercive and re- straining effects of such, thereby making the holding of a fair, meaningful, and free election virtually impossible, I regard the signed authorization cards of the salesmen as 7' Hickmott Foods, 242 NLRB 1357 (1979) 75 See generally Isis Plumbing Co., 138 NLRB 716 (1962). DOWNTOWN TOYOTA 1023 constituting a far more reliable measure of their represen- tation desires. Accordingly, I shall recommend the issu- ance of an order -requiring Respondent to recognize and bargain with the Union as the exclusive collective-bar- gaining representative of its salesmen. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed76 ORDER The Respondent, Lionel G. Sullivan and Ralph A. Fattore, a Partnership d/b/a Downtown Toyota, Oak- land, California, its agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees because it knew or suspect- ed they engaged in union activities. (b) Refusing to rehire an employee because its employ- ees are engaging in activities protected by Section 7 of the Act. (c) Coercively interrogating employees as to their union membership, sympathies, and activities and the union membership, sympathies and activities of their fellow employees. . (d) Threatening employees with unspecified reprisals and with the futility of organizing a union. (e) Soliciting and lending support to the idea of an em- ployee petition by which its employees would -revoke their support for the Union. (f) By soliciting its employees to `go to the Union and renounce their support for it. (g) By soliciting'the grievances of employees and im- mediately implementing changes in their terms and con- ditions 'of employment in response to said grievances. (h) Implementing changes in employees' terms and conditions of employment in order to induce them to abandon their support of the Union. (i) Informing a job applicant that was denied rehire be- cause of the protected Section 7 activities of its other employees. (j) Informing employees that engaging in union activi- ties constitutes disloyalty to its highest level supervisors. (k) In any other manner interfering with, restraining, or coercing employees in the exercise of their" rights guaranteed bySection 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Michael Heller and Robert Stokes whole for any loss of earnings suffered as a'result of their respec- tive discharges on October 31, 1983, in the manner de- scribed in the section entitled "The Remedy." (b) As a result of -its refusal to reemploy Michael Heller on or about November 22, 1983, offer him imme- diate employment in his former position or, if that job no longer exists, in a substantially equivalent one, without prejudice to his seniority or any other rights or privi- leges of employment and make Heller whole for any loss of earnings in the manner described in the section enti- tled "The Remedy " (c) Expunge from its files any references to the dis- charges of Michael Heller and Robert Stokes on October 31, 1983, and the refusal to rehire Heller on November 22, 1983, and notify each, in writing , that such has been done and that said unlawful actions will not be used as a basis for future personnel actions against him. (d) Preserve and, on request, make available to the Board, or its ' agents, for examination and copying, all payroll records, social security payment records, time- cards;; personnel records and reports, and all other records necessary 'to analyze the amounts of backpay due under the terms of this recommended Order. (e) On request, recognize and bargain with the Union, as the exclusive representative for purposes of collective bargaining of its employees in the appropriate unit de- scribed above, with respect to- rates of pay, wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody such in a written, execut- ed contract. (f) Post at its Oakland, California facility, copies of the attached notice marked "Appendix."7 7 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's au- thorized 'representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive 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 notices are not altered, defaced, or covered by any other material. • - (g) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order what steps have been taken to comply herewith. IT IS FURTHER ORDERED ,that, insofar as the consolidat- ed amended complaint alleges that Respondent violated Section 8(a)(1), and (3) of the Act by terminating employ- ees Frank Sheehan and John Hardenberg and Section 8(a)(1) of the Act by impliedly promising, to remedy em- ployee-complaints in order to undermine the Union and giving the impression of the futility of organizing a union it is 'dismissed. 76 If no exceptions are filed as provided by Sec 10246 of the Board's Rules and Regulations, the findings , conclusions , and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur-. poses . -' - 77 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 " Copy with citationCopy as parenthetical citation
