Ed Morse Auto Park

National Labor Relations Board - Board Decisions

Nov 30, 2001

336 N.L.R.B. 1090 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1090
Morse Operations, Inc., d/b/a Ed Morse Auto Park
and National Organization of Industrial Trade
Unions. Cases 12–CA–18836, 12–CA–18856, 12–
CA–19329, 12–CA–19329–2, and 12–CA–19471
November 30, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On September 7, 1999, Administrative Law Judge
Howard I. Grossman issued the attached decision. The
Respondent and the General Counsel filed exceptions
and cross-exceptions, respectively, along with supporting
and answering briefs.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order as modified and set forth in full below.3
1. In adopting the judge’s finding that the Respondent
violated Section 8(a)(1) of the Act by Assistant Service
Manager Dan Crawford’s statement to discriminatee Pe-
ter Hanscom on June 6, 1997, that he was going to “stop”
Hanscom and “have the Union thrown out,” we find it
unnecessary to pass on the judge’s finding that Crawford
was a supervisor within the meaning of Section 2(11) of
the Act. The Respondent stipulated at the outset of the
hearing that Crawford was an agent of the Respondent
within the meaning of Section 2(13). Thus, Crawford’s
threat is attributable to the Respondent. See, e.g., Haus-
ner Hard-Chrome of KY, Inc., 326 NLRB 426 (1998).

1 The Respondent filed a motion to withdraw its exceptions to the
judge’s findings pertaining to the Union’s status as the employees’
bargaining representative and to the wage increases the Respondent
gave to some employees during December 1997. We grant the Re-
spondent’s motion.
2 Although the Respondent contends that the judge ignored material
evidence, these contentions are essentially exceptions to the judge's
credibility findings. The Board's established policy is not to overrule an
administrative law judge's credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. 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.
In addition, the Respondent contends that the judge’s rulings, find-
ings, and conclusions demonstrate bias and prejudice. On careful ex-
amination of the judge’s decision and the entire record, we are satisfied
that the Respondent’s contentions are without merit.
3 We find merit in the General Counsel’s exception that the judge’s
recommended Order and notice failed to remedy the unlawful discipli-
nary warning issued to Peter Hanscom. We will also modify the rec-
ommended Order and notice to conform to the violations found and to
provide for narrow injunctive language.
We will modify the judge’s recommended Order in accordance with
our recent decision in Ferguson Electric Co., 335 NLRB 142 (2001).
2. The judge found that auto repair technicians Peter
Hanscom, Joseph Niciforo, Eton Leung, and Henry
Brodhurst were discharged in violation of Section 8(a)(3)
and (1) of the Act. As the judge explained, under Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S.
393 (1983), the General Counsel has the burden of show-
ing that protected conduct was a motivating factor in
these discharges. We find that the General Counsel has
met this burden. In this context, in addition to the evi-
dence cited by the judge, the record shows that all four
discriminatees were highly qualified technicians with
excellent employment records; that none of them had
been disciplined by the Respondent before they became
open and active union supporters; and that their dis-
charges effectively removed almost half of the Respon-
dent’s technicians who were union supporters.4
The evidence also establishes that Hanscom, the first
of the discriminatees to be terminated, was summoned to
a meeting with the Respondent’s supervisors and placed
on suspension on June 6, 1997, just 2 weeks after the
Union won a Board-conducted election to represent the
Respondent’s technicians.5 Hanscom testified, without
contradiction, that at this meeting, immediately after
Service Manager Bill Yanick told him he was being sus-
pended, Service Director Peter Lombardo said: “You
know, everybody here is going to start getting written up.
I don’t know why everybody wants to fight the Union.
The Union is going to be here and it’s going to stay.”6
Although Lombardo’s statement can be interpreted as
indicating acceptance of the fact that the Union is the
representative, his first sentence suggests that the Re-
spondent will deal more harshly with employees as a
result of that union representation. And, since this
statement was made contemporaneously with the suspen-
sion of Hanscom, it supports the conclusion that the sus-
pension was discriminatorily motivated.
In view of this evidence, along with the evidence of
animus cited by the judge, we agree that the General
Counsel made the required showing that the discrimina-
tees’ protected activity was a motivating factor in each of
their discharges.

4 In addition, during the first part of May 1997, after the Union had
filed its petition but before the election, the Respondent thought highly
enough of Hanscom to make him a “group leader,” a position he chose
to relinquish after a week.
5 The judge mistakenly indicated that Hanscom’s suspension oc-
curred on June 8.
6 Although Lombardo subsequently testified, he did not deny having
made this statement.
336 NLRB No. 115
ED MORSE AUTO PARK 1091
We also agree with the judge that the Respondent’s
contention that all four discriminatees would have been
terminated for lawful reasons absent their protected ac-
tivity is not supported by the record. Niciforo and Leung
were discharged under the Respondent’s asserted policy
of “zero tolerance” for negligent repair work. In addition
to the credited evidence cited by the judge, the record
shows that another technician, Dominic Marchetto, suf-
fered no disciplinary sanction under that policy even
though he failed to replace a car’s defective gas line,
which resulted in a fire that engulfed the car’s entire
front section. Moreover, while the Respondent claimed
that another employee, Robert Long, was discharged
under the “zero tolerance” policy, the record establishes
that at the time of Long’s discharge the Respondent had
already placed him on a 90-day probation for repeated
dishonest actions. The evidence pertaining to Marchetto
and Long provides further support for the judge’s finding
that Niciforo and Leung, given their exemplary work
records, would not have been terminated solely for al-
leged negligence had they not been associated with the
Union. For these reasons and those stated by the judge,
we find that the Respondent violated Section 8(a)(3) by
discharging the four discriminatees.7
3. In adopting the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) by reducing employees’
pay effective February 1, 1998, without bargaining with
the Union, we rely on, in addition to the credited evi-
dence cited by the judge, the Respondent’s stipulation
that Ed and Ted Morse “wholly owned” Global Warranty
Corp., and the record evidence establishing that the
Morses had a major interest in Fidelity Warranty Ser-
vices. These facts undercut the Respondent’s contention
that the pay reduction was imposed by two “outside”
warranty companies. Moreover, the periodic changes in
the “Chilton’s manual” of approved work time estimates,
also relied on by the Respondent, are correlated to highly
specific repair tasks and do not provide a basis for gener-
alized pay reductions of the type imposed by the Re-
spondent on this occasion.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as

7 We find merit in the General Counsel’s exception to the judge’s
failure to find that Brodhurst’s discharge, which was based not only on
his union activities but on his protected concerted activity in protesting
a pay reduction, independently violated Sec. 8(a)(1) as well as Sec.
8(a)(3). However, our finding in this regard does not affect the judge’s
recommended Order.
Although Chairman Hurtgen concurs in these findings, he does not
agree with the judge’s sweeping statement that “an employer’s failure
to conduct a fair investigation . . . constitutes evidence of discrimina-
tory motivation.”
modified and set forth in full below and orders that the
Respondent, Morse Operations, Inc., d/b/a Ed Morse
Auto Park, Lake Park, Florida, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Telling union proponents that it is going to “stop”
them, and have the Union thrown out.
(b) Telling the collective-bargaining representative that
there is no Union at the facility, and that its shop steward
is not the steward.
(c) Telling employees that they will be discharged for
engaging in union activity.
(d) Soliciting employees to deal directly with the Re-
spondent regarding raises and terms and conditions of
employment.
(e) Telling employees that it would be futile for them
to support the Union as their bargaining representative.
(f) Discharging or issuing disciplinary warnings to
employees because of their union or other protected con-
certed activity.
(g) Giving pay raises or other benefits to employees
without first giving the collective-bargaining representa-
tive an opportunity to bargain over these matters.
(h) Reducing the pay rate of employees without first
giving the collective-bargaining representative an oppor-
tunity to bargain over this matter.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Peter Hanscom, Joseph Niciforo, Henry Brodhurst, and
Eton Leung full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Peter Hanscom, Joseph Niciforo, Henry
Brodhurst, and Eton Leung whole for any loss of earn-
ings and other benefits they may have suffered as a result
of the discrimination against them, plus interest, in the
manner set forth in the remedy section of the judge’s
decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Make all employees whole for any loss of earnings
and other benefits they may have suffered as a result of
the unlawful reduction of pay rates, plus interest.
(f) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:

All full-time and regular part-time technicians at the
Respondent’s facility in Lake Park, Florida.

(g) Within 14 days after service by the Region, post at
its Lake Park, Florida facility, copies of the attached no-
tice marked Appendix.8 Copies of the notice, on forms
provided by the Region Director for Region 12, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Responsible steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the tendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expenses, a copy of the notice of all cur-
rent employees and former employees employed by the
Respondent at any time since May 21, 1997.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT tell union proponents that we are go-
ing to “stop” them and have the National Organization of
Industrial Trade Unions thrown out.
WE WILL NOT tell the Union that there is no union at
the facility, and that the Union’s shop steward is not the
steward.
WE WILL NOT tell employees that they will be dis-
charged for engaging in union activity.
WE WILL NOT solicit employees to deal directly with
us regarding pay raises and other terms and conditions of
employment.
WE WILL NOT tell employees that it would be futile
for them to support the Union.
WE WILL NOT discharge or issue disciplinary warn-
ings to employees because of their union or other pro-
tected concerted activity.
WE WILL NOT give pay raises or other benefits to
employees without first giving the Union an opportunity
to bargain over these matters.
WE WILL NOT reduce the pay rate of employees
without first giving the Union an opportunity to bargain
over these matters.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
WE WILL offer Peter Hanscom, Joseph Niciforo,
Henry Brodhurst, and Eton Leung full reinstatement to
their former or equivalent positions, and make them
whole for any loss of earnings they may have suffered,
plus interest, as a result of the discrimination against
them.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharges of Peter Hanscom, Joseph Nici-
foro, Henry Brodhurst, and Eton Leung, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the discharges will not be used
against them in any way.
WE WILL make all employees whole for any loss of
earnings and other benefits they may have suffered as a
ED MORSE AUTO PARK 1093
result of our unlawful reduction of pay rates, plus inter-
est.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on and condi-
tions of employment for our employees in the bargaining
unit:

All full-time and regular part-time technicians at our
facility in Lake Park, Florida.

MORSE OPERATIONS, INC., D/B/A ED
MORSE AUTO PARK

George S. Aude, Esq., for the General Counsel.
Benjamin B. Culp Jr., Esq. (Fisher & Phillips LLP), for the
Respondent.
Joseph Merino, Business Organizer, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charges were filed at various times1 by National Organization
of Industrial Trade Unions (Local 119), affiliated with National
Organization of Industrial Trade Unions (NOITU). Consoli-
dated complaints issued on January 27 and September 29, 1998,
and an amendment to the latter on December 11, 1998. The
amendment alleges that Local 119 had merged with its parent
organization, NOITU, on January 1, 1998.
The last consolidated complaint alleges that Morse Opera-
tions, Inc., d/b/a Ed Morse Auto Park (Respondent or the Com-
pany) at various times in 1997 threatened employees with repri-
sals for engaging in union activities, told employees that the
Union was not their collective-bargaining representative, that
Respondent would not deal with the Union or its shop steward,
threatened employees with discharge if they supported the Un-
ion, solicited employees to deal directly with Respondent re-
garding terms and conditions of employment, promised em-
ployees raises if they would not support the Union, and told
employees that it would be futile for them to support the Union.
The complaint further alleges that, on various dates in 1997,
Respondent administered verbal and written discipline to em-
ployee Peter Hanscom and discharged him and employee Jo-
seph Niciforo, and, in 1998, employee Eton Leung, because
they joined or assisted the Union and engaged in concerted
activities, in order to discourage employees from engaging in
such activities.
The complaint also alleges that on November 14, 1997, the
Board certified Local 119 as the employees’ exclusive collec-

1 The original charge in Case 12–CA–18836 was filed on June 10,
1997, the first amended charge on June 25, 1997, the second amended
charge on September 18, 1997, and the third amended charge on Sep-
tember 24, 1997; the original charge in Case 12–CA–18856 was filed
on June 23, 1997; the original charge in Case 12–CA–19329 was filed
on February 26, 1998, and an amended charge on September 18, 1998;
the original charge in Case 12–CA–19329–2 was filed on February 26,
1998, and a first amended charge on August 31, 1998; the original
charge in Case 12–CA–19471 was filed May 4, 1998.
tive-bargaining representative in an appropriate unit,2 and that
NOITU has been their representative since January 1, 1998,
based on the merger of Local 119 and NOITU on that date.
Respondent denies the validity of the certification.3
The complaint additionally alleges that, in about December
1997, Respondent granted wage increases to certain unit em-
ployees and later reduced wage rates of other employees, with-
out giving prior notice to the Union and without affording it an
opportunity to bargain over these actions, thus violating Section
8(a)(3) and (5). The complaint further alleges that Respondent
discharged employee Henry Brodhurst on February 20, 1998,
for participating with other employees in protesting the reduc-
tion in pay, and engaging in union activities.
A hearing on these matters was conducted before me in Mi-
ami, Florida, on January 11–15, and February 22–24, 1999.
Thereafter, the General Counsel and Respondent filed briefs.
Based on the entire record, and my observation of the demeanor
of the witness, I make the following
FINDINGS OF FACT
I. JURISDICTION
The pleadings establish that Respondent is a Florida corpora-
tion, with an office and place of business in Lake Park, Florida,
where it is engaged in the sale and service of new and used
automobiles. During the 12 months preceding issuance of the
last complaint, Respondent derived gross revenues in excess of
$500,000 and purchased and received at its facility goods and
materials valued in excess of $10,000 directly from points lo-
cated outside the State of Florida. Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The last complaint alleges and Respondent’s answer admits
that Local 119 is a labor organization within the meaning of
Section 2(5) of the Act.4 The amendment to the last complaint
alleges that NOITU is a labor organization. Respondent’s an-
swer asserts that it is without knowledge, and therefore denies
the allegation.5 The record evidence shows that NOITU en-
gages in the statutory functions of a labor organization, and I
find that it is in fact a labor organization within the meaning of
Section 2(5).
II. PRIOR LITIGATION
Pursuant to a stipulated election agreement, an election was
held in the unit described above on May 23, 1997. The initial
tally of ballots showed 8 votes cast for Local 119, 6 against it,
and 2 challenged ballots. The employer filed objections, and a
hearing was held before a hearing officer, who recommended
that the objections be overruled. The Board adopted the hear-
ing officer’s recommendation, and remanded the case to the
Regional Director with instructions to open and count the two
challenged ballots. A revised tally of ballots showed 9 votes
2 All full-time and regular part-time technicians employed by Re-
spondent at its facility located at 3703 N. Lake Boulevard, Lake Park,
Florida, excluding all other employees, office clerical employees,
managerial employees, guards, and supervisors as defined in the Act.
3 GC Exh. 1(hh), par 5(jj), par. 5.
4 GC Exh. 1(hh), par. 3; GC Exh. 1(jj), par. 3.
5 GC Exh. 1(oo), par. 3(b); GC Exh. 1(qq), par. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094
for Local 119 and 7 against it. The parties stipulated that on
November 14, 1997, the Board certified Local 119 as the exclu-
sive collective-bargaining agent of the employees in the unit
described above.6
Union President Joseph Merino wrote Respondent a letter
stating that Local 119 had been certified, and requested bar-
gaining.7 On November 19, 1997, company counsel by letter
rejected the Union’s bargaining demand.8
On December 8 and 24, 1997, Local 119 filed charges in
Case 12–CA–19194 alleging that Respondent had violated
Section 8(a)(5) and (1) by refusing to bargain, and complaint
issued on this charge. Following an investigation, a Motion for
Summary Judgment was filed, which was granted by the Board
on March 23, 1998, finding that Respondent had violated Sec-
tion 8(a)(5) and (1) by refusing to bargain with Local 119. Ed
Morse Auto Park, 325 NLRB No. 77 (1998) (not reported in
Board volumes). This decision is now on appeal before the
11th Circuit Court of Appeals.
III. THE ALLEGED UNLAWFUL DISCHARGES
The complaint alleges four unlawful discharges, two early in
1997 and two in 1998, including one connected with an alleged
violation of Section 8(a)(5). This section of the decision will
deal with three of the discharges and one alleged unlawful
threat.
A. The Discharge of Peter Hanscom
1. Hanscom’s employment history and union activity
Peter Hanscom worked as a professional auto repairman
since 1975. He started working at the Lake Park facility in
August 1994, under a predecessor of Respondent, and special-
ized in Chrysler automobiles. Hanscom was a “drivability
technician,” and was responsible for repair of starting and stall-
ing problems. He repaired oxygen sensors and throttle-by ser-
vices, replaced injectors, and installed vehicle computers.
Hanscom was a certified mechanic in engine and electrical
repair, air-conditioning, and drivability or engine performance
repair. He was selected as technician of the month in June
1996.
Hanscom signed a union card on April 12, 1997, collected 18
union authorization cards, and attended at least five union
meetings, four of which were at his house. He wore a union hat
starting in late May 1997, and was seen doing so by various
supervisors.
2. The incidents with Peter Felder on May 21
A series of incidents took place between Hanscom and Peter
Felder on about May 21, 1997, 2 days before the election.
Felder was a service writer, whose job included receipt of cus-
tomer complaints about vehicles, generation of a work order,
and transmission of work orders to the dispatcher. Hanscom
testified that Felder on May 21 told him that a customer had

6 R. Exhs. 9 and 10. The title of the certified labor organization was
“National Organization of Industrial Trade Unions, Local 119.”
7 GC Exh. 13. The letter is dated November 4, 1997, i.e., prior to the
certification on November 14. I conclude that this was an inadvertent
error, and that the correct date was November 14.
8 GC Exh. 14.
complained about a car on which Hanscom had worked a day
or two before. Felder told Hanscom that the car was across a
divided highway from the dealership, had stalled, but the en-
gine was turning over. Hanscom told Felder to have a wrecker
bring the car in, and he would examine it. Felder replied that
Hanscom should go out to the vehicle, examine it, and push it
into the dealership. Hanscom responded that the Company did
not do “roadside assistance,” Hanscom testified that Felder
became angry, and told Hanscom that he was going to “come
over the wall and punch you in the pussy mouth.” Hanscom
replied that Felder was not that stupid and did not have enough
money. Neither Felder nor the owner of the vehicle testified
about these incidents. A wrecker brought the car in and it was
found to have a blown fuse.
About an hour later, Service Manager Bill Yanick ap-
proached Hanscom, who told him that Felder had verbally
threatened Hanscom. The latter was called to a meeting with
General Manager Thomas Naso, Service Director Peter
Lombardo, and Service Manager Bill Yanick. Naso asked
Hanscom what all the yelling and screaming was about. Ac-
cording to Hanscom, he denied that there was any yelling or
screaming, and told Naso that Felder had threatened him with
bodily harm. Lombardo testified that Hanscom replied to Naso
that he was not in an argument with Felder, and should not have
been instructed to go out and get the vehicle. Yanick corrobo-
rated Hanscom. Naso warned Hanscom that he and Felder had
not acted professionally and that if it happened again, Hanscom
would be terminated. Felder also received a warning. Naso
told Hanscom that he wanted to discuss the Union, but
Hanscom declined.
I credit Hanscom’s version of the meeting with Naso, and his
uncontradicted testimony of his conversation with Felder.
3. The incident with Frank Waterbury on May 28, 1997
Frank Waterbury was a technician at the beginning of 1997.
In late April or early May he was promoted to the position of
“group leader.” He actually worked as a dispatcher, at $17
hourly. On receipt of a work order from a service writer, a
dispatcher assigns it to the technician best qualified to do the
work, depending on his training, skills, whether the customer is
waiting for the vehicle, and whether it is a “re–check,” i.e., a
vehicle brought in after a repair had already been done.
Union Representative Tucci worked directly across from
Waterbury’s work area. Tucci testified that, after Waterbury
became a dispatcher, he spent 85 percent of his time performing
dispatching work, and 15 percent doing automotive repair
work. Hanscom testified that he did not see Waterbury repair
any cars after his promotion. The Company placed a desk in
his work area, and slots for repair orders. In September 1997,
Waterbury was made a shop foreman at $20 hourly.9
On May 28, Hanscom had five or six repair orders, including
one for a Mitsubishi. He had limited training on Mitsubishi
automobiles. Although there was some similarity between
Mitsubishi and Chrysler parts, the “electronics” were different.
Hanscom asked Waterbury what he should do about it.
Waterbury replied that the car did not run, and Hanscom should
9 GC Exh. 56 was signed by Service Director George Riker.
ED MORSE AUTO PARK 1095
repair it. Hanscom replied that he did not know anything about
Mitsubishi automobiles. He had worked only on Chryslers,
which had a “different language” from Mitsubishi’s.
Waterbury replied that he would get somebody else.
Hanscom put the rest of his tickets on his toolbox. He went
to the parts department, and, when he returned, all his repair
tickets were gone. Hanscom went to the dispatcher department
and noted that his slot, which he had just emptied, was full. In
it were orders, which he characterized as “garbage—a trim
panel, a window that wouldn’t go up, a water leak, an oil
change, etc.”
4. The incidents with Dan Crawford
a. Crawford’s authority and the compensation of technicians
Dan Crawford was a “service writer, assistant manager,” ac-
cording to Union Steward Pat Tucci. Crawford’s business card
described him as “assistant service manager.”10 Union Repre-
sentative Pat Tucci testified that when he was hired, then Ser-
vice Manager Martino told him that Crawford was Martino’s
assistant, and that Tucci could go to him if he had any problems
in Martino’s absence. Tucci testified that Crawford could place
a technician’s number on a repair ticket, and the dispatcher
would direct the job to that technician.
Crawford could reduce the labor charges on a repair ticket,
and thus reduce the payment to the technician. Technicians had
an hourly wage scale. However, the numbers of hours, which
they worked, were not necessarily the hours for which they
were compensated. Each particular repair had a prescribed
number of hours to complete it, and technicians were paid ac-
cording to this formula rather than the actual time. There were
three such formulas, which were listed in a compendium called
a “Chilton’s manual.” The lowest formula was a manufac-
turer’s “warranty time.” If the vehicle was not “under factory
warranty,” it may have been covered by an “extended war-
ranty” agreement with a private company. These formulas
customarily allowed a greater amount of time, and thus a
greater revenue to the technician, than the manufacturers’ war-
ranties. Finally, a job could be compensated by an amount paid
by the customer.
Union Representative Tucci testified that Crawford had the
authority to “discount” the labor cost of the repair job when a
customer protested the cost, i.e., reduce the prescribed hours for
the job. This resulted in a reduction of the compensation to the
technician. The only other individuals who had this authority
were Service Manager Yanick and Service Director Lombardo,
both admitted supervisors.
Another factor in employee compensation was the fact that
certain jobs required more time than that allowed in the Chil-
ton’s manual. Union Representative Tucci and Hanscom testi-
fied that Crawford could “starve out” a technician by assigning
him a disproportionate number of such jobs.
b. Hanscom’s dispute with Crawford on June 6, 1997
On June 6, Hanscom was working on a job assigned to him
by Crawford. The job had been “discounted” by Crawford one
half-hour.

10 GC Exh. 45.
Technicians use various parts in the repair job, and some of
these have coupons supplied by the parts manufacturer, which
could be used to purchase gifts. These are called “spiff” cou-
pons. Technicians were supposed to retain half and give the
other half to the supervisor. A part utilized by Hanscom on
June 6 had a “spiff” with it. Crawford approached him and
asked for half of the coupon. Hanscom asked him to restore the
one half-hour of time that Crawford had taken away from him.
Crawford replied, “No deal,” and added that he was going to
“stop” Hanscom and “have the Union thrown out.”
Crawford did not testify, and I credit the uncontradicted tes-
timony of Tucci and Hanscom.
5. Hanscom’s suspension and discharge
Hanscom was called to a meeting with Service Director Yan-
ick on June 8, 1997. Yanick asked what Hanscom’s problem
was, and Hanscom said he wanted to know why his hours were
being cut. Waterbury, who was present, said that the reason
was the fact that Hanscom did not work on the Mitsubishi.
Hanscom disputed this. The incidents with Felder and Craw-
ford were also discussed. Yanick told Hanscom that he was on
suspension, and Hanscom went home. He filed charges with
the Board, and a few days later Lombardo called and informed
him that he was terminated.
6. Legal conclusions
a. The supervisory status of Dan Crawford
The Act defines a supervisor as any individual having au-
thority, in the interest of the employer, to hire, transfer, sus-
pend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but re-
quires the use of independent judgment.11 Possession of any
one of these powers is sufficient to confer supervisory status.
NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571, 576 (6th Cir.
1948), cert. denied 335 U.S. 908 (1949).
The Board has found that a journeyman tooler, who assigned
tasks to individuals in accordance with his appraisal of their
ability to perform the task, was a supervisor within the meaning
of Section 2(11). Lab Glass Corp., 296 NLRB 348, 359
(1989).12
Summarizing Crawford’s functions, he was a “service assis-
tant manager,” whose business card indicated the latter title.
Pat Tucci was told by the service manager that Crawford was
the manager’s assistant, and that Tucci could go to him in the
service manager’s absence. This constitutes evidence of super-
visory status. Armored Transfer Service, 287 NLRB 1244
(1988); Aztec Concrete, 277 NLRB 1244 (1985).
Crawford had and exercised the authority to assign work to
technicians by placing the technician’s number on the job
ticket. Waterbury testified that this selection was based on
various factors—the technician’s particular skills, whether the
customer was waiting for the vehicle, and whether it was a “re–
11 Sec. 2 (11).
12 Accord: Massachusetts Coastal Seafoods, 293 NLRB 496, 505
(1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1096
check.” This decision was not routine, and required independ-
ent judgment regarding the special expertise of the technicians,
as well as the needs of waiting customers. Lab Glass Corp.,
supra.
Crawford could “discount” the allotted time for a job, and
assign to it technicians in an disproportionate number of low-
paying jobs, and thus reduce the technician’s compensation.
The only other individuals who could do this were admitted
Supervisors Yanick and Lombardo.
The Board has recently issued a decision on the issue of the
supervisory status of “dispatchers” of distribution systems for a
power and light company. Mississippi Power Light Co., 328
NLRB 965 (1999). The decision is extensive, and details the
use of advanced electronic equipment by the dispatchers. For a
variety of reasons not present in the case at hand, the majority
decided that the dispatchers were not supervisors. Because of
the factual differences, I do not consider this case to be deter-
minative.
On the basis of the facts summarized above, I conclude that
Crawford was a supervisor within the meaning of Section 2(11)
of the Act.
b. The alleged violation of Section 8(a)(1)
The complaint alleges that on or about June 6, 1997, Re-
spondent, by Dan Crawford, unlawfully threatened employees
with unspecified reprisals for engaging in union activities.13
The record shows that on about June 6, 1997, Supervisor
Crawford told employee Hanscom that he was going to “stop”
Hanscom and “have the Union thrown out.” This was an
unlawful threat under established Board law, and violated Sec-
tion 8(a)(1).
c. The alleged discrimination against Hanscom
The General Counsel has the burden of establishing a prima
facie case that is sufficient to support an inference that pro-
tected conduct was a motivating factor in an employer’s deci-
sion to discipline an employee. Once this is established, the
burden shifts to the Respondent to demonstrate that the disci-
pline would have been administered even in the absence of the
protected conduct.14
Respondent’s animus against the Union is established by
Crawford’s unlawful threat described above, and by Respon-
dent’s other unfair labor practices described hereinafter. Ac-
cordingly, the General Counsel has established a prima facie
case.
Respondent has not shown that Hanscom engaged in any
conduct that warranted discipline. In the case of Felder, the
credited record shows that Felder threatened Hanscom with
bodily harm after the latter refused to cross a divided highway
and engage in “roadside assistance.” In the case of Waterbury,
instead of penalizing Hanscom for refusing to work on the Mit-
subishi, Yanick gave Waterbury a writeup. In the case of
Crawford, the supervisor reduced Hanscom’s compensation on
a job, and then demanded half of the “spiff” which came with

13 GC Exh. pars. 6(a), 10.
14 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
the job. When Hanscom agreed, on the condition that Craw-
ford return Hanscom’s one-half hour of compensation, Craw-
ford refused and made the unlawful threat described above.
Hanscom had an outstanding record, including selection as
technician of the month in 1996. It is unlikely that Respondent
would have engaged in the drastic discipline of discharge for
the events described above absent Hanscom’s strong and visi-
ble support of the union movement. Naso wanted to discuss the
Union when he told Hanscom on May 21, that similar conduct
(the dispute with Felder) would result in Hanscom’s discharge,
and Crawford stated explicitly that he would have the Union
thrown out. I find that by Naso’s warning Hanscom that he
would be terminated by engaging in the action as described
above, and by terminating him on about June 10, 1997, because
of his union activities, Respondent thereby violated Section
8(a)(3) and (1) of the Act.
B. The Discharge of Joseph Niciforo
1. Niciforo’s employment history and union activities
Joseph Niciforo had been employed in automotive repair
work for 40 years, and held certifications from the National
Institute for Automotive Service Excellence as a master auto-
mobile technician in various fields—engine repair, automatic
trans/transaxle, manual drive train and axles, suspension and
steering, brakes, electrical/electronic systems, heating and air-
conditioning, and engine performance.15 He had three periods
of employment with Respondent—from June 1995 until April
1996, from June 1996 until November 1996, and from April
1997 until he was discharged on June 20, 1997. Respondent’s
general manager, Thomas Naso, used Niciforo to repair and
inspect Naso’s personal vehicle.
Niciforo signed a Local 119 authorization card on April 12,
1997, and attended several meetings. Naso wrote Niciforo a
note saying that it was important for him to get Niciforo’s sup-
port, and that he should “vote (his) instinct.”16 About 2 or 3
weeks before the May 23 election, Naso approached Niciforo
and asked him what he thought about the Union. Niciforo re-
plied that he was in favor of it—he had been in the automotive
repair business for 40 years, and had nothing to show for it.
According to Niciforo, Naso did not want to hear what Niciforo
had to say. “He just blew me off.” After the election, Niciforo
started wearing a union hat, and was seen doing so by various
supervisors.
2. Niciforo’s discharge
Niciforo was discharged on June 20, 1997, assertedly for
negligence in repair of an automobile. The Company had taken
in a 1996 Saturn as a trade-in on the sale of another vehicle,
and on April 22, 1997, Niciforo was assigned the job of prepar-
ing it for resale. Niciforo did so; the car was placed on Re-
spondent’s used car lot and was sold about 6 weeks later.
On June 16, Niciforo was called into Lombardo’s office,
where Lombardo and Yanick told Niciforo that the purchaser of
the Saturn had taken it out, and that it would not move because
of a problem with the brakes. Niciforo was informed that the
15 GC Exh. 37.
16 GC Exh. 40.
ED MORSE AUTO PARK 1097
car was at a Saturn dealership, which at that time was also
owned by Respondent’s owner. Niciforo testified that it was
customary to return a car that had been worked on, but still had
troubles, to the technician who had worked on it. Respondent’s
explanation was that the car broke down at night. Niciforo told
the supervisors that it was impossible for this to have happened.
Service Manager Yanick replied that “it did happen,” sent Nici-
foro home, and discharged him on June 10.
The automobile was repaired at the Saturn dealership, and
Respondent presented evidence as to what was wrong with it.
The work order shows that the purchaser said the car made a
loud noise and would not move forward.17 Respondent’s direc-
tor of fixed operations, Rodney Carter, concluded that the car
had stopped because the caliper had swung against the rim, and
did so because the bottom bolt had not been tightened. Re-
spondent also presented Saturn’s service department manager,
John Herberchs, who testified that the top bolt of the caliper
had come lose. Both witnesses concluded that the bolt had not
been tightened. Respondent introduced photographs from a
Saturn repair manual to support this testimony.
Niciforo then testified again, and disputed Respondent’s evi-
dence, noting the conflict as to which bolt allegedly came out.
His work order shows that he had to “cut the rotors.”18 Since
the car had only a little over 19,000 miles, he did not have to
take the caliper apart. He simply loosened the suspension bolts
and lifted it off the rotor. He then “rounded” the rotor, and put
the parts back.
Niciforo was specific on his next procedure. He cleaned the
mounting bolts, and applied a “locking agent” to them. Using
his own torque wrench, he fastened the bolts using the pre-
scribed pressure. Niciforo said that he had done this innumer-
able times during his 40 years as an automobile technician, and
it was “impossible” that he could have deviated from this ha-
bitual function. He then gave the automobile a test drive for 10
to 20 miles. If the caliper had been loose, it would have rattled
every time he stepped on the brakes—there was no such noise.
3. Factual and legal conclusions
The record shows that Niciforo was an exemplary employee.
He had numerous certifications as a master automobile techni-
cian in various fields, including brakes. Of the various techni-
cians employed at Respondent’s facility, he was selected by the
general manager to inspect and repair the general manager’s
personal vehicle.
Niciforo’s testimony as to his repair of the Saturn was de-
tailed and persuasive. There was nothing unusual about tight-
ening the bolts—he had been doing it for many years. Section
406 of the Federal Rules of Evidence states:

Evidence of the habit of a person or of the routine
practice of an organization, whether corroborated or not
and regardless of the presence of eyewitnesses, is relevant
to prove that the conduct of the person or organization on
a particular occasion was in conformity with the habit or
routine practice.

17 R. Exh. 39.
18 GC Exh. 6.
Respondent’s evidence is not persuasive. After Niciforo re-
paired the Saturn, it sat on Respondent’s used car lot for about
6 weeks, and was then sold. It was not examined again prior to
sale, and there is no evidence that it was in the same condition
as it was after Niciforo repaired it. It could have been repaired
again by mistake, which happened in the case of employee
Dennis Nyugen, who replaced an engine on a Renault that did
not have any engine problem.19 The purchaser of the Saturn
did not testify, and we thus do not know why he had the vehicle
towed to a Saturn dealership—owned by the same individual
who owned the Ford dealership, Respondent herein—rather
than back to the place where he purchased it, which was the
customary practice. Respondent’s reason—the vehicle “locked
up” at night—is unpersuasive. The Saturn dealership was only
a few miles away from the Ford agency, and it was obviously
the same time of night there.
Niciforo’s work record and expertise and his selection by
Respondent’s general manager as the latter’s personal techni-
cian, have greater probative weight than Respondent’s evidence
with its ambiguities and omissions. I conclude that Niciforo’s
account of his repair of the used car was truthful.
Respondent did not bother to investigate. It simply accepted
the reports from the Saturn dealership, and discharged Nici-
foro.20 The latter’s union sympathies were known to Respon-
dent. General Manager Naso asked Niciforo for his support,
and was rejected. I conclude that the reason given for Nici-
foro’s discharge was a pretext and that the real reason was his
support of the Union. Accordingly, his discharge was violative
of Section 8(a)(3) and (1).
4. The discharge of Eton Leung
a. Leung’s employment history and union activities
Eton Leung had 20 years of experience as an automotive
technician. He was employed from February 1997 until April
29, 1998, when he was discharged. Leung was a certified tech-
nician in steering, suspension, air-conditioning, engine repair,
and brakes. He signed a union authorization card on April 14,
1997, and attended six to eight union meetings. Leung wore a
union hat at work in June and July 1997. He participated in
union picketing and handbilling outside Respondent’s facility
in December 1997, and signed an employee petition presented
to management in February 1998. Service Director Riker testi-
fied that, other than the incident that precipitated Leung’s dis-
charge, Riker could not recall any problems with Leung. Riker
testified that he told the owner of the car involved in this inci-
dent that Leung was a “great” employee. Riker could not recall
any problems with attendance, initiative, or quality of work.
He testified at the hearing that Leung was a “good” employee.
Yet after Leung’s discharge Riker rated Leung as “unsatisfac-
19 Testimony of George Brodhurst.
20 Hanscom testified that he was requested by Yanick to investigate a
vehicle that had been worked on by another employee and had burned
up. Hanscom determined that the cause was the other employee’s
failure to remove a fuel pressure regulator about which the manufac-
turer had issued a recall notice. The other employee was not disci-
plined.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1098
tory” in job knowledge and quality of work, and “fair” in atten-
dance, cooperation, and initiative.21
b. Leung’s discharge
On April 29, 1998, dispatcher Victor Bunce assigned Leung
a repair job on a Jeep, for which the customer was waiting.
Leung had another vehicle on his lift, and could not do the
work right away. Bunce then told Leung to place the Jeep on
one of Waterbury’s lifts, since Waterbury was not there and
both lifts were vacant. Leung did so. Waterbury arrived and
cursed Bunce and Leung.
Leung finished the job on the Jeep, which required an oil
change and a wheel rotation. When he finished, he drove the
Jeep about 50 yards to the location where customers pick up
their vehicles. Leung did not see the customer take possession
of the Jeep. He turned in his papers, and went back to his for-
mer job. About half an hour later, the Jeep was brought back to
the facility on a tow truck. The right front wheel appeared to
be crooked, and it was Leung’s opinion that it was not drive-
able. He called the owner, who said that she heard a noise, and
stopped driving the car.
Leung testified that he had put the wheel lugs on with an air
gun, which he had done hundreds of times previously. He had
never before been accused of failing to tighten lug nuts.
Service Director Riker told Leung that the wheel had fallen
off. Leung replied that this could not have happened and that
somebody must have taken the wheel off, but Riker would not
listen. Two days later, Riker called him and said he did not
want Leung working there any more.
Service Director Riker testified that a service advisor told
him that a customer had picked up a car, and that a wheel had
fallen off. Riker walked out of the facility onto the boulevard,
and observed the Jeep. Riker stated that he picked up three lug
nuts as he crossed the street toward the Jeep. It was brought
back to the facility and examined. Riker testified that the lug
nuts showed that they had been placed on only to the extent of
two or three threads, and had obviously “popped off” when the
customer attempted to turn the vehicle.22
Riker asserted that he asked Leung whether he knew how
this could have happened, and Leung replied that he did not
know. Riker told Leung that the Company had “zero tolerance”
for negligence. He denied that Leung had suggested that
Waterbury had done anything to the Jeep after Leung worked
on it. Riker concluded that, although Leung had a “clean re-
cord,” he had to be discharged pursuant to the Company’s pol-
icy of “zero tolerance” for negligence.
On cross-examination, Riker testified that in August 1997, a
wheel fell off a vehicle on which employee Dennis Nyugen had
worked. The car was parked overnight at the dealership after
being repaired, and the customer picked it up the next morning.
A wheel fell off after she had driven it less than 200 feet. Riker
interrogated Nyugen, who told him that he remembered tighten-
ing the lug nuts on all four wheels. He gave the car a 2-mile
road test.

21 R. Exh. 28.
22 R. Exh. 27.
According to Riker’s pretrial affidavit, during his investiga-
tion of this matter, a few “openly pro-union technicians” asked
him whether Nyugen was going to be treated the same way as
Niciforo. At that point, according to the affidavit, Riker be-
came suspicious of a “set-up” in Nyugen’s case. There was no
way that Nyugen could have driven the car for 2 miles with
loose lug nuts. “After careful investigation,” Riker’s affidavit
states, “I concluded Mr. Nyugen was the victim of a set-up.”23
At the hearing, Riker initially denied being asked by “pro-
Union” employees whether Nyugen was going to be treated the
same way as Niciforo, and denied knowing that they were “pro-
Union” employees. He distinguished Leung’s case from
Nyugen’s, because in the latter instance the vehicle had re-
mained at the facility for 3 days, and there were “break-ins,”
and wheels, tires, and radios taken.
c. Factual and legal conclusions
The credible evidence shows that Leung was a commendable
employee. His testimony to this effect was corroborated by
Riker, who called him a “good” employee, and told the Jeep
owner that he was “great.” Riker’s contrary opinion expressed
in his termination report of Leung has no probative weight,
other than to underscore Respondent’s animus against union
supporters. Leung’s union activities were extensive, and in-
cluded handbilling, picketing, and signing an employee petition
to management. These latter events took place only a short
time before he was discharged. The General Counsel has estab-
lished a prima facie case.
Respondent’s asserted case for Leung’s discharge has gaps
in it. After Leung finished his work, he drove the Jeep 50 yards
to the area where customers picked up their cars. Leung did not
see the customer in this instance, and an opportunity existed for
somebody to loosen the lug nuts—a matter, which could have
been accomplished in a very short period of time. The lug nuts
submitted by Respondent show tearing of the first three or four
threads, as Respondent argues. Assuming that they were from
the Jeep, this would have been the same result if they were
originally affixed tightly, and later loosened. An inference that
they were affixed properly in the first place is supported by
Leung’s 20 years of experience as a technician, his “habit” of
tightening the lug nuts, and the absence of any complaints
about him.
When Leung told Riker that somebody else must have taken
the wheels off (or loosened the lug nuts) the supervisor would
not listen. And yet, in the case of Dennis Nyugen, Riker ar-
rived at precisely that conclusion—Nyugen was the victim of a
“set-up.” Riker’s conclusion was precipated by “pro-Union”
employees asking him whether Nyugen was going to be faced
with the same result as Niciforo. Although Nyugen’s union
sympathies are unknown, it is clear that Riker’s action was
precipitated by “pro-Union” employees challenging him about
the matter. Riker’s testimony about this issue is suspect—he
exaggerated the time that the car in Nyugen’s case remained at
the facility, and his rationale for possible loosening of the lug
nuts—theft of tires, radios, etc.—is farfetched.
23 GC Exh. 65.
ED MORSE AUTO PARK 1099
Although the Nyugen incident is not identical with Leung’s,
it is closely similar. Riker’s exoneration of Nyugen and his
administration of the harsh discipline of discharge of Leung
belie Respondent’s assertion that it had “zero tolerance” for
negligence. It is established Board law that discipline of one
employee for alleged misconduct, and exoneration of another
for the same alleged misconduct, constitute evidence of dis-
criminatory motivation. Southwire Co. v. NLRB, 820 F.2d 453
(D.C. Cir. 1987).
I conclude that the reason for Respondent’s discharge of
Eton Leung was pretextual, and that the real reason was his
support of the Union. Accordingly, the discharge violated Sec-
tion 8(a)(3) and (1) of the Act.
IV. THE ALLEGED VIOLATIONS OF SECTION 8(A)(1) IN
LATE 1997
A. The Statement of General Manager Thomas Naso and
Service Director George Riker in Mid-November 1997
On November 5, 1997, Local 119 President Joseph Merino
sent Respondent a letter notifying the latter that Pat Tucci was
the shop steward and Chuck Leverette the assistant shop stew-
ard.24 As noted above, on November 14, 1997, Merino sent the
Company a letter informing it that the Union’s certification had
been received, and requested bargaining.25
The complaint alleges that on November 18, 1997, both
General Manager Thomas Naso and Service Director George
Riker told employees that the Union was not their bargaining
representative, and that Respondent would not deal with the
Union or its shop steward.
It also alleges that Naso threatened employees with dis-
charge for engaging in union activity. Union Steward Tucci
testified that on about November 18, 1997, employee Jeff Fitz-
gerald told Tucci that Respondent was refusing to pay him for
work performed; Fitzgerald requested Tucci’s assistance. The
two employees went to Riker’s office, but he was busy and they
went back to their work areas. About 45 minutes later, Riker
came out to Fitzgerald’s work area. Tucci’s work area was
next to Fitzgerald’s, and he heard Fitzgerald tell Riker that
Tucci had asked to be present at the meeting between Riker and
Fitzgerald. Riker replied, “No way,” and came over to Tucci’s
work area. “There’s no Union here,” he yelled at Tucci, “and
you’re not the f–king shop steward.” Fitzgerald was then called
to Riker’s office. I credit Tucci’s uncontradicted testimony.
After speaking with Fitzgerald, Riker told Tucci to accom-
pany him to General Manager Naso’s office. When they en-
tered the office, Naso told Tucci that there was no union at the
facility, and that Tucci was not the shop steward. Tucci handed
Naso copies of the Union’s notification to Respondent of its
certification and the notice identifying Tucci as the shop stew-
ard. Tucci asked Naso whether he had received these docu-
ments, but Naso did not reply. He told Tucci that he did not
“appreciate Tucci counseling the men,” that he had a “bad atti-
tude,” and that he would terminate Tucci if he kept it up. Naso
testified that he considered a writeup for Tucci, because he
became “involved in other technicians’ business with regard to

24 GC Exh. 16.
25 Supra, fn. 4.
other technicians’ employment.” This constituted corrobora-
tion of Tucci’s testimony, which I credit.
I conclude that Riker’s and Naso’s statements to Tucci that
they would not recognize the certified Union or its appointed
shop steward, and Naso’s statement to Tucci that he would be
discharged if he continued to be involved in the employment
problems of Respondent’s employees, constituted violations of
Section 8(a)(1).
B. General Manager Naso’s Statements on
December 15, 1997
The complaint alleges that General Manager Thomas Naso,
on December 15, 1997, solicited employees to deal directly
with Respondent regarding raises, promised employees raises if
they would not support the Union, and told them that it would
be futile for them to support the Union.
The General Counsel presented three witnesses on state-
ments made by General Manager Thomas Naso at an employee
meeting in mid-December 1997. The meeting was also ad-
dressed by Respondent’s owner, Ted Morse. According to Pat
Tucci, Morse said that the Board was in error, and that he was
going to “fight them to the end.”
Employee Charles Leverette testified that Naso said Morse
had given him authority to renegotiate wages, that Naso had an
open-door policy, and that any employee wanting a raise should
see him on a “one-to-one” basis. He repeated Tucci’s testi-
mony that Morse said the Company was going to fight the
NLRB, and that it had made a mistake in certifying the Union.
Eton Leung testified that Naso said the employees did not
need a union, because they could come into Naso’s office and
solve whatever problems they had, including the need for a
salary increase. The Company’s dealing with the Union could
take “years” to resolve, according to Leung.
After the meeting was over, Naso called Tucci into his of-
fice, and told him Tucci wasn’t the shop steward, and that if he
kept it up, Naso would discharge him. Naso added that Ed
Morse had the money to “keep this tied up forever,” and that he
would never negotiate a contract, no matter what the NLRB
says. . . . No one’s going to tell him how to run his business and
negotiations were never going to happen now, no how, no
way.”
I credit this consistent testimony as to what Owner Ted
Morse and General Manager Thomas Naso said to employees
in mid-December 1997. Naso’s statements establish the com-
plaint allegations that Respondent solicited employees to deal
directly with Respondent regarding raises, and told them that it
would be futile for them to support the Union. The evidence
does not explicitly establish that the Company promised em-
ployees raises in return for their rejection of the Union, and I
consider it unnecessary to make a finding on this allegation.
I conclude that Naso’s statements violated Section 8(a)(1).
V. THE MERGER OF LOCAL 119 AND NOITU
A. The Complaint Allegations
The amendment to the complaint alleges that on January 1,
1998, Local 119 merged with its parent, NOITU, and that since
that time NOITU has been the collective-bargaining representa-
tive of the employees in the unit described above. Prior to that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1100
time, beginning November 14, 1997, Local 119 was such repre-
sentative.
The amendment also amends section 9(a) and (b) of the last
complaint26 so as to aver that Respondent in December 1997
gave wage increases to certain employees, including Domi-
nique Marchetto, Frank Waterbury, and Tom Vanlit, and on
January 21, 1998, issued a memorandum to employees reduc-
ing their rates of pay effective February 1, 1998—without prior
notice to the Union and without affording it an opportunity to
bargain concerning these matters.
B. The Merger
The General Counsel presented the testimony of Local 119
President Joseph Merino, and that of Daniel Lasky, president
emeritus elect of NOITU.27 Lasky gave Merino the require-
ments for a merger. Pursuant to these instructions, Local 119’s
executive board met on November 3, 1997, and unanimously
decided to merge with NOITU.28
All Local 119 members were notified by mail on November
15, 1997, to attend the annual membership and executive board
meeting in order to act upon a recommendation of the executive
board that Local 119 merge with NOITU. The meeting was to
be held in Elmhurst, New York, on December 6, 1997.29
Local 119 had two contracts and about 30 members in Flor-
ida. Merino, as Local 119’s president, serviced those contracts.
He testified that he spoke to all the Florida members before the
formal notice went out, and told them that they would be re-
ceiving a notice concerning merger with NOITU, and that they
could call him if they had any questions.
The membership meeting took place as scheduled on De-
cember 6, 1997, in Elmhurst, New York. A roll call was taken
and a quorum was present. Merino chaired the meeting, and
explained its purpose. Questions were asked and answered.
Merino explained that the Local was in financial difficulty, and
needed the merger for financial stability. He asked whether the
members wished to take a secret vote, and a majority opposed
it, since many were truckdrivers who wanted to get on with
their work. Merino conducted a vote by a show of hands. All
members voting voted in favor of the merger, and there were no
opposing votes.30
The general membership meeting of NOITU took place at
the same location shortly after the conclusion of the Local 119
meeting. Lasky reported to the membership the vote of Local
119 to seek merger with NOITU.31
On December 8, 1997, Lasky sent notice to all members of
NOITU’s executive board announcing a meeting of the Board
on December 14, 1997, for the purpose of acting on the re-
quested merger agreement.32 The meeting was held as sched-
uled. Lasky chaired this meeting, and read a proposed merger

26 GC Exh. 1(hh).
27 Lasky had been a member of NOITU’s executive board since
1972.
28 GC Exh. 12.
29 GC Exh. 5. Local 119 had contracts and members in New York
and Florida.
30 GC Exh. 6; testimony of Lasky.
31 GC Exh. 7.
32 GC Exh. 8.
agreement between NOITU and Local 119. The agreement was
approved unanimously.33 Thereafter, a merger agreement
effective January 1, 1998, was signed by Merino, representing
Local 119, and Lasky, representing NOITU. It states that Local
119 went out of existence.34
Subsequent to the merger agreement, Merino became the
eastern southern representative of NOITU, and continued to
service the same Florida contracts, which he had serviced as
Local 119’s president. He was paid by NOITU. Brian Pepper,
who serviced other Local 119 contracts, continued to service
them as a national representative of NOITU.
Following the merger, Merino filed a charge on February 26,
1998, in Case 12–CA–19329, alleging the unlawful discharge
of Henry Brodhurst on February 20, 1998. The charging party
was listed as “Local 119 affiliated with National Organization
of Industrial Workers,” and a space for affiliation lists the latter
organization.35
On March 31, 1998, Local 119 counsel wrote Respondent a
letter demanding bargaining in Case 12–CA–19194, pursuant to
the Board’s Order date March 23, 1998; the reference part of
the letter lists “National Organization of Industrial Trade Un-
ions Local 119.”36
On April 14, Respondent’s counsel replied that the Board
had erred in refusing to grant Respondent a new election, and
that the Board’s Order was not binding on Respondent. Ac-
cordingly, Respondent declined “to meet and bargain with rep-
resentatives of NOITU or its Local 119 Labor Organization.”37
Merino thereafter filed various charges listing Local 119 as
the charging party.38
Merino was cross-examined on whether Local 119 had in
fact ceased to exist on January 1, 1998. He replied that this was
technically correct, but that there were papers he had to deal
with for the Board and that he had been acting as president of
Local 119 for 37 years. On redirect examination, Merino testi-
fied that he had a stroke 2 years before the hearing, i.e., in
about January 1997, and that it affected his short-term memory.
C. Legal Conclusions
A merger or affiliation of a certified union with a national
organization does not affect the employer’s duty to bargain
with the postaffiliation union.39 An employer seeking to avoid
this obligation has the burden of establishing that the affiliation
was not accomplished with minimal due process, or that the
postaffiliation union lacked substantial continuity with the pre-
affiliation union. CPS Chemical Co., 324 NLRB 1018 (1997);
Sullivan Bros. Printers, supra; Minn-Dak, supra; Quality Inn
Waikiki, 297 NLRB 497 (1989); May Department Stores Co.,
33 GC Exh. 9.
34 GC Exh. 10.
35 GC Exh. 1(s).
36 R. Exh. 3.
37 R. Exh. 3(a).
38 First amended charge, Case 12–CA–19329, filed September 18,
1998; original charge, Case 12–CA–1947–1 filed May 4, 1998.
39 Minn-Dak Farmers Cooperative, 311 NLRB 942 (1993); Toyota
of Berkeley, 306 NLRB 893, 893, 894 (1992); Sullivan Bros. Printers,
317 NLRB 561, 562 (1995); and Action Automotive, 284 NLRB 251,
254 (1987).
ED MORSE AUTO PARK 1101
289 NLRB 661, 664–665 (1988), enfd. 897 F.2d 221 (7th Cir.
1990).
Respondent argues that the merger process deprived Local
119 members of adequate due process safeguards, and, accord-
ingly, the merger was not effective. The Company contends
that the Florida members were given inadequate notice of the
meeting to be held in New York, and that no effort was made to
hold a separate meeting for the Florida members.40 On the
contrary, all members were given about 3 weeks’ notice to
attend the meeting. Respondent’s argument that NOITU and
Local 119 should have held another meeting in Florida has no
merit, and its contention that the Florida members had no op-
portunity to consider the merger is inaccurate. Prior to the
official notice of the membership meeting, Local 119 President
Merino discussed the merger vote with the Florida members,
and invited questions. And, of course, all Florida members did
receive official notice of the membership meeting. The fact
that the meeting was not attended by all members did not affect
the due process of the meeting. A quorum was present. A
contrary position would enable any minority to defeat the will
of the majority by simply failing to appear.
Respondent next argues that the merger vote was invalid be-
cause it was taken by a show of hands, rather than by secret
ballot, citing State Bank of India, 262 NLRB 1108 (1982).
However State Bank involved the merger of two local unions.
When a local is merging with its parent organization, a secret
vote is not required. Aurelia Osborn Fox Memorial Hospital,
247 NLRB 356 (1980); House of the Good Samaritan, 248
NLRB 539 (1980). The same rationale is applicable to the
Company’s argument that NOITU did not keep a record of the
employees attending the meeting.
Respondent argues that the members were not provided with
a copy of the merger agreement. However, the record is not
clear on this allegation. In any event, Merino answered ques-
tions about the proposed agreement, and Respondent has sub-
mitted no evidence that these answers failed to give the mem-
bers adequate knowledge of the proposed merger.
The requirement that the postaffiliation union have substan-
tial continuity with the preaffiliation union was obviously satis-
fied. Indeed, Joseph Merino and Brian Pepper continued in the
same functions they had prior to the merger. Respondent has
conceded that it does not question the substantial continuity
part of the rule.41
Respondent’s argument that there was a lack of due process
because nonunion Technicians employed by Respondent were
not given an opportunity to vote has no merit. NLRB v. Finan-
cial Institution Employees Local 118 (Seattle First National
Bank), 475 U.S. 192 (1986). The Board has subsequently con-
cluded that a union’s failure to give employees who are not
union members an opportunity to vote in an affiliations election
does not establish a lack of due process.42

40 R. Br. 7.
41 R. Br. 8.
42 George Lithograph, 305 NLRB 1090 (1992); Potters Medical
Center, 289 NLRB 201 (1988). See also Hamilton Tool Co., 190
NLRB 571 (1971).
I conclude that Respondent has failed to meet its burden of
establishing that the merger was accomplished without minimal
due process, or that the postaffiliation union lacked substantial
continuity with the preaffiliation union.
Finally, Respondent argues that it has no obligation to bar-
gain with Local 119, because the latter ceased to exist after the
merger, nor with NOITU, since the Company never received a
bargaining demand from the latter and had no notice of the
merger.43
The Board has found that Respondent unlawfully refused to
bargain prior to the merger. On Respondent’s theory of the
case, this unfair labor practice, as well as the numerous viola-
tions found, must simply remain unremedied. If Respondent
had responded affirmatively to Local 119’s premerger demand
for bargaining, it is probable that it would have learned of the
merger. The Company’s unfair labor practice thus contributed
to its lack of notice of the merger.
Respondent’s argument has been disposed of by the Fifth
Circuit Court of Appeals. In Houston Coca-Cola Bottling Co.,
265 NLRB 766 (1982), enf. as modified 740 F.2d 398 (5th Cir.
1984), a local Teamsters union, Local 949, filed a charge alleg-
ing that the employer had committed various unfair labor prac-
tices, and the Board so found. Subsequent to the Board’s Deci-
sion, Local 949 merged with another labor organization, Local
988, and the employer filed motions for reconsideration. The
Board denied the motions, and held that Local 988 could appear
on the ballot in a second decertification proceeding as “the
valid successor” to Local 949 (740 F.2d at 402). The decision
of the court of appeals reads in relevant part as follows:

The Company also contends that the merger of the Un-
ion with Local 988 effectively renders the Board’s order
moot because it is directed at the Company’s conduct rela-
tive to Local 949, and Local 949 no longer exists.
When the Board finds that unfair labor practices have
been committed, it is entitled to have its order enforced by
the Courts to prevent a recurrence of that unlawful conduct
in the future. In this manner, the Board and the courts
vindicate the statutory right of employees to freely choose
a bargaining representative (authorities cited), and the
public interest in preventing unfair labor practices (author-
ity cited). Doubt as to the existence of Local 949 and the
validity of the successor’s affiliation election should not
be permitted to excuse the Company’s previous unlawful
conduct (authority cited). . . . [T]ermination of Local 949’s
status as the authorized bargaining representative and
doubt as to Local 988’s status as successor cannot be per-
mitted to pretermit enforcement of an order aimed at pre-
venting future misconduct (authority cited).
We conclude that enforcement of the Board’s Order
would best effectuate the statutory purpose of protecting
the right of the Company’s employees to freely choose a
bargaining representative. Allegations of impossibility of
compliance have not prevented courts from enforcing
Board orders against employers who have discontinued
their business operations (authorities cited). Thus, the
43 R. Br. 10–11.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1102
public interest in prohibiting and discouraging the com-
mission of unfair labor practices is no less critical in cases
where union representation has ceased or changed, despite
the Company’s allegations that it has been ordered to “per-
form an impossible act.” [740 F2d at 406.].

Paragraph 1(a) of the administrative law judge’s recom-
mended order in Houston Coca-Cola had required the company
to cease and desist from certain unlawful conduct (265 NLRB
at 784). The court of appeals modified this language so as to
require that the cease-and-desist order run against Local 949 or
its successor, Local 988, Teamsters, should it be deemed the
successor to Local 949 as the result of the pending representa-
tion proceeding (and) shall be referred to as the “Union.” (740
F.2d at 407.)
In the case at bar, the labor organization into which Local
119 merged was its own parent, the International. I conclude
that NOITU was the successor to Local 119 and that, as alleged
in the amended complaint, Respondent was precluded from
engaging in the unlawful conduct alleged in the amended com-
plaint.
VI. RESPONDENT’S WAGE RAISES TO CERTAIN EM-
PLOYEES
General Manager Thomas Naso testified that Respondent
gave pay raises to four employees in mid-December 1997.44
As set forth above, Respondent granted these raises at about
the same time that Respondent unlawfully solicited employees
to apply for wage raises without the Union’s assistance, and
also told them that the NLRB had made a mistake in certifying
the Union, that Respondent was going to fight it, and that
Owner Ted Morse had enough money to keep the matter tied up
forever and would never negotiate a contract. Respondent ad-
vanced no reason for granting the wage raises in December
1977. General Manager Naso admitted that the Union was not
consulted. He testified that a technician does not get a raise
unless he asks for one. Service Director Riker testified that he
considers factors such as ASE certifications, Chrysler training,
productive and work habits, but admitted that he had not started
any yearly reviews at the time of the increases.
Charles Leverette began working for Respondent in 1995.
He was a certified master technician. He signed a union card,
and began wearing a union hat after the May 23, 1997 election.
Leverette asked for a raise twice, but was denied. He testified
that he was talking with Service Manager Bill Yanick in early
June 1997 about a transmission problem. Yanick told him that
he (Yanick) had an authorization to give raises, but could not
give them out because of the union activity. Yanick had a piece
of paper with names and numbers on it. He told Leverette that
the latter had “lost,” and could have made up $23 hourly.
Respondent argues that the raises were not unlawful, because
Respondent was simply following its policy of granting raises
to employees who asked for them, and whose record justified

44 Thomas Vantil, $16.50 to $17.50 (GC Exh. 31); Dominic
Marchetto, $16.50 to $17.50 (GC Exh. 32); Jim Matis, $17 to $18 (GC
Exh. 33); Frank Crugliano, $14 to $15, and to $16 in 90 days (GC Exh.
34).
it.45 However, Respondent’s asserted policy was only an-
nounced by Owner Ted Morse in mid-December 1997, after
Local 119 had filed unfair labor practice charges. Respon-
dent’s argument that raises were granted if warranted was obvi-
ously incorrect in the case of Charles Leverette, a certified mas-
ter technician, who asked but was denied. I infer that the fact
that Leverette was Local 119’s assistant steward was a factor in
Respondent’s denial of his requested raise.
The pay raises were selective in nature, since other employ-
ees did not receive them and they did not follow any prior pat-
tern of raises. Based on these factors, Respondent’s failure to
consult the Union, and its hostility to the union movement, I
conclude that the raises were intended to discourage employees
from participating in the union movement, thus violating Sec-
tion 8(a)(1), (3), and (5). Chosun Daily News, 303 NLRB 901
(1991); Dlubak Corp., 307 NLRB 1138 (1992); Dickerson-
Chapman, Inc., 313 NLRB 907 (1994), Section 8(a)(3); and
NLRB v. Walker Construction Co., 928 F.2d 695 (5th Cir.
1991), Section 8(a)(5).
VII. THE SALARY REDUCTION AND THE DISCHARGE
OF
HENRY BRODHURST
A. The Salary Reductions
On January 21, 1998, Respondent issued a memo to employ-
ees stating that technicians would be paid only at factory au-
thorized time for vehicles covered by the extended warranty
companies, effective February 1, 1998.46 As indicated previ-
ously, this meant that technicians would be paid for a lesser
amount of time on a specific job, and would thus lose pay.
Charles Leverette and Henry Brodhurst explained what the
reduction meant in dollar terms. Thus Brodhurst testified that
he would lose $100 per job for a transmission overhaul.
B. The Discharge of Henry Brodhurst
1. Brodhurst’s employment history and union activity
Brodhurst began working for Respondent in April 1997. He
signed a union card that month, and attended at least a dozen
union meetings. He spoke to employees concerning antiunion
literature being distributed to employees by the Company, wore
a union hat, and on May 16, 1997, distributed copies of a letter
to General Manager Naso in response to the Company’s litera-
ture. He testified for the Union on June 25, 1997, in the hear-
ing on objections, and participated with other employees in
picketing the Company for several weeks starting in December
1997. In mid-February 1998, at a meeting being addressed by
Ernie Ferency, the Company’s senior vice president of opera-
tions, he spoke out against the pay cuts.
2. The transmission job
About a week after the meeting with Ferency, Brodhurst re-
ceived a transmission job. There is conflicting evidence on
several colloquies involving Brodhurst, Service Director Riker
and service writer Don Hamilton. The job was ordered by a
private insurance company. Brodhurst submitted an estimate of
45 R. Br. 17.
46 GC Exh. 21.
ED MORSE AUTO PARK 1103
16.5 hours as the time required, but Hamilton approved it for
only 11 hours. When Brodhurst asked the reason, Hamilton
replied that it was Chilton’s factory warranty time. Brodhurst
asked Hamilton to negotiate with the insurance company, but
Hamilton refused. (Brodhurst testified that he had done this in
the past.) Brodhurst asked Hamilton to get Service Director
Riker. The latter appeared, but also refused to call the insur-
ance company. Brodhurst asked for a meeting with the general
manager, but Riker refused. At either this or a later meeting
with Riker, Brodhurst said, “George, if I can’t get it resolved
here, I’ll just have to call the Labor Board and find out from
them how to go about handling this issue.”
Brodhurst returned to his workstation. He disassembled the
transmission, put in a handcart, and took it to the cleaning bin
in the late afternoon. Hamilton approached him and asked
when the transmission would be ready and whether Brodhurst
had ordered any parts. Brodhurst replied that he did not have to
order any parts, and that the transmission would be ready early
the following week. He asked Hamilton whether the latter had
called the customer, and offered to do this for him. Hamilton
became “agitated,” claimed that he had already done this three
times, and said that Brodhurst was accusing Hamilton of not
doing his job. “I don’t give a damn about you and your Union
shit,” Hamilton stated, according to Brodhurst. He “leaned
forward in my face, “and stuck out his chest.” Brodhurst testi-
fied that he walked away from Hamilton, towards his toolbox.
Hamilton testified that he saw Brodhurst washing the disas-
sembled transmission in the wash basin, and asked him when it
would be ready. Brodhurst asked whether Hamilton had rene-
gotiated the job, and the latter denied doing so. At that time
Brodhurst was washing the transmission in the wash basin, but
Hamilton claimed he was approaching Hamilton in an aggres-
sive manner. Hamilton asserted that Brodhurst threw some-
thing at him, but admitted that Brodhurst had nothing in his
hand at the time. Hamilton denied telling Brodhurst that he,
Hamilton, had called the customer three times, or that he had
told Brodhurst he didn’t give a damn about Brodhurst’s union
business.
The work area of George Brodhurst, Henry’s brother, was
nearby. He testified that Hamilton started shouting, and said, “I
don’t give a [damn] about your damn Union.” Henry then
started walking toward his toolbox, and Hamilton followed
him, “still yapping, yapping, shouting and screaming.”
Henry Brodhurst testified that, as he was approaching his
toolbox, Riker appeared and asked Brodhurst what had taken
place, and what Brodhurst had responded upon Hamilton’s
asking when the transmission would be ready. “Wednesday”
(of the following week), Brodhurst answered. Riker than told
him to lock up his box and go home. This was the second con-
versation Brodhurst had with Riker on that day.
Riker’s testimony on this matter appears to confuse the first
and second meetings. The service director asserted that Brod-
hurst approached him with an air ratchet in his hand in a threat-
ening manner, and was shouting. Riker could not remember
whether Brodhurst was holding the air ratchet up in the air, or
at his side. Riker testified that he felt threatened, and that
threatening an assault is a dischargeable offense. When ssked
why he did not discharge Brodhurst at that time, Riker replied,
“I didn’t feel that threatened.” Asked whether Brodhurst’s
statement that the matter involved a labor dispute occurred
prior to the asserted assault, Riker testified that it occurred “at
the same time.”
After telling Brodhurst to go home, Riker went to James
Carr, then general manager. As Riker was speaking with Carr,
Brodhurst came to the outer office, and demanded to see Carr.
This request was refused. Riker did not tell Carr that Brodhurst
had asked to see him. Carr affirmed that he had an “open door”
policy, by which employees could see him about disputes.
Riker told Carr that Brodhurst had been abusive and uncoop-
erative, and that Riker had sent him home. Carr agreed, and
said that that he would review the matter. These events took
place on Friday. On the next day, Saturday, Carr saw Brod-
hurst at the parts counter. Brodhurst asked Carr whether the
latter had made a decision, and the general manager replied that
he had not done so.
3. Brodhurst’s discharge
On the following Monday, Carr reviewed Brodhurst’s file.
The earliest discipline was in May 1997. The file contained
two documents, neither of which was offered to prove the truth
of its contents. The first document was dated in September
1997, and asserts that Brodhurst had a “bad attitude toward
employees and manager. Expects us to pay him for walking
around looking for cars.” Brodhurst refused to sign it.47 The
second document is a warning dated December 16, 1997, which
asserts that Brodhurst refused a work assignment and was pro-
fane toward a supervisor. Brodhurst did not sign this warn-
ing.48 He testified that he never saw it until the hearing. Carr
admitted that he had no personal knowledge of these events.
Carr also interviewed Hamilton, who told him that Brodhurst
had refused to work on a car, and that he felt he had been
threatened with physical violence by Brodhurst.
On the basis of Brodhurst’s file, and the reports to him by
Riker and Hamilton, Carr concluded that it was not necessary to
review Hamilton’s file, although he was aware that Hamilton
had a DUI conviction, did not have a driver’s license, and was
restricted from driving company vehicles. Carr did not feel that
it was necessary to ask Brodhurst about the events in issue. He
testified that he did not consider Brodhurst to be a “trouble-
maker,” but decided to discharge him based on the record cited
above.49 “That’s why we keep personnel folders,” he testified.
4. Factual and legal conclusions
a. The salary reduction
A host of Board and court cases have established that it is a
violation of Section 8(a)(5) for an employer to refuse to bargain
with the certified representative of its employees by unilaterally
implementing changes in employment conditions, such as sal-
ary reductions.50

47 R. Exh. 25.
48 R. Exh. 8.
49 Carr also relied on a report given him by Riker that another em-
ployee had been discharged for an assault upon an employee. Carr had
no personal knowledge of this matter.
50 See, e.g., Pepsi-Cola Bottling Co. of Fayetteville, 315 NLRB 882
(1994); Opportunity Homes, 315 NLRB 1210 (1994); Ironton Publica-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
Respondent argues that it owns over 20 dealerships, that the
change in compensation, i.e., the change to factory warranty
time as the basis of technician compensation, was made univer-
sally among the dealerships, and that it did not evidence animus
toward Local 119 or NOITU.51 This argument is irrelevant,
since proof of a violation of Section 8(a)(1) and (5) does not
require proof of animus, and there is abundant evidence of it in
any event. Further, there is no showing that the employees of
the 19 other dealerships were represented by bargaining agents.
Respondent next argues that the change in technician com-
pensation did not represent a change in policy, since that policy
was to “pay the mechanics for the number of hours authorized
by the warranty issuer (either the manufacturer or an extended
warranty company). The evidence established that the hours
contained in both factory manuals and other sources, such as
Chiltons, changed on a regular basis . . . and were effective
immediately when changed.”52
But there is no evidence that the reduction affected by Re-
spondent on February 1, 1998, was an act by the manufacturers
or the extended warranty companies—it was solely Respon-
dent’s decision. There is nothing in Respondent’s official
memo to indicate that the manufacturers or warranty companies
were responsible. Indeed, the memo tacitly admits that the
warranty companies may not have known the amounts by
which their required payments—and the technicians’ in-
comes—were going to be reduced. The memo reads in part:
“Because the outside warranty companies may not have current
warranty information, a legible copy of the charge claims may
be requested by the warranty company.”53 Respondent’s action
was simply a transfer of income from the technicians to the
extended warranty companies. I conclude that it violated Sec-
tion 8(a)(5) and (1).
b. The discharge of Henry Brodhurst
Henry Brodhurst was a certified master technician. He was
also one of the foremost proponents of Local 119. Respon-
dent’s reaction to this fact is reflected in its September 1997
written warning—Brodhurst had a “bad attitude towards em-
ployees and manager.”
Brodhurst’s discharge followed by a short time the an-
nouncement by Ernie Ferency, the Company’s senior vice
president, of a change in technician compensation. Brodhurst
protested this action at the meeting. The change went into ef-
fect on February 1, 1998, and Brodhurst was discharged about a
week later.
The conflicting testimony about “the transmission job” is set
forth above. Hamilton’s testimony has elements that affect his
credibility. How could Brodhurst approach Hamilton “aggres-
sively” while the former was washing a 200-pound transmis-
sion in the wash basin? How could Brodhurst have thrown
something at Hamilton if Brodhurst had nothing in his hand?
Brodhurst was corroborated by his brother as to Hamilton’s
actions and statements. It is of course true that the corroborat-

tions, Inc., 313 NLRB 908 (1994); Days Hotel of Southfield, 311
NLRB 856 (1993); Sierra Realty Corp., 317 NLRB 832 (1995).
51 R. Br. 17.
52 R. Br. 17–18
53 GC Exh. 21.
ing witness was his brother—but Hamilton had none. I credit
Brodhurst’s account of his encounters with Hamilton.
Riker’s testimony has similar inconsistencies. Although
Brodhurst allegedly threatened him with an air ratchet, Riker
could not remember whether Brodhurst had it up in the air or
was simply holding a tool in his hand. Asked why he did not
discharge Brodhurst then for the dischargeable offense, Riker
replied that he “didn’t feel that threatened,” and gave Brodhurst
a work order.
And yet it was on the accounts of Riker and Hamilton that
General Manager Carr made his decision to discharge Brod-
hurst—without even asking for Brodhurst’s account of the mat-
ter. Carr also relied on Brodhurst’s file, which contained
documents not intended at the hearing to establish the truth of
its contents.
Carr’s action in this matter is a glaring example of an em-
ployer’s failure to conduct a fair investigation of alleged em-
ployee misconduct. Under established Board law, this consti-
tutes evidence of discriminatory motivation. I conclude that the
General Counsel has established a prima facie case, and that
Respondent has not rebutted it. Accordingly, Brodhurst’s dis-
charge violated Section 8(a)(3) and (1).
In accordance with findings above, I make the following.
CONCLUSIONS OF LAW
1. Respondent Morse Operations Inc., d/b/a Ed Morse Auto
Park is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. National Organization of Industrial Trade Unions is a la-
bor organization within the meaning of Section 2(5) of the Act.
3. By engaging in the following conduct, Respondent vio-
lated Section 8(a)(1) of the Act:
(a) Telling one of the Union’s proponents that it was going to
“stop” him, and have the Union “thrown out.”
(b) Telling employees that there was no union at the facility
at a time when National Organization of Industrial Trade Un-
ions was the employees’ bargaining representative, and telling
its shop steward that he was not the steward.
(c) Telling employees that they would be discharged for en-
gaging in union activity.
(d) Soliciting employees to deal directly with Respondent
regarding raises and terms and conditions of employment.
(e) Telling employees that it would be futile for them to sup-
port the Union as their bargaining representative.
4. Respondent violated Section 8(a)(1) and (3) of the Act by
engaging in the following conduct because the employees in-
volved engaged in union activity and assisted the Union:
(a) Warning employee Peter Hanscom, and, on June 10,
1997, discharging him.
(b) Discharging employee Joseph Niciforo on June 20, 1997.
(c) Discharging employee Henry Brodhurst on February 20,
1998.
(d) Discharging employee Eton Leung on May 1, 1998.
5. The following employees of Respondent constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:

ED MORSE AUTO PARK 1105
All full-time and regular part-time technicians employed by
Respondent at its facility located at 3703 N. Lake Boulevard,
Lake Park, Florida, excluding all other employees, office
clerical employees, managing employees, and supervisors as
defined in the Act.

6. On January 1, 1998, National Organization of Industrial
Trade Unions, Local 119, previously certified as the collective-
bargaining representative of the employees in the unit described
in paragraph 5, merged with its parent organization, National
Organization of Industrial Trade Unions (NOITU).
7. By the merger described in paragraph 6, NOITU became
the successor to National Organization of Industrial Trade Un-
ions Local 119, and the collective-bargaining representative of
the employees described in paragraph 5.
8. In mid-December 1997, without notification to the collec-
tive-bargaining representative or giving it an opportunity to
bargain, Respondent unilaterally gave wage increases to certain
employees in order to persuade other employees that they could
obtain raises without the Union, and to discourage them from
engaging in union activities, thus violating Section 8(a)(1), (3),
and (5) of the Act.
9. On January 21, 1998, without giving notice to the collec-
tive-bargaining representative an opportunity to bargain, Re-
spondent unilaterally issued a memorandum to unit employees
reducing their pay effective February 1, 1998, thus violating
Section 8(a)(1) and (5) of the Act.
10. Respondent has not violated the Act except as stated
herein.
REMEDY
It having been found that Respondent has committed certain
unfair labor practices, it is recommended that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tions necessary to effectuate the policies of the Act.
It having been found that Respondent unlawfully discharged
Peter Hanscom on June 10, 1997, Joseph Niciforo on June 20,
1997, Henry Brodhurst on February 20, 1998, and Eton Leung
on May 1, 1998, I recommend that Respondent be ordered to
offer each of them reinstatement to his former position, without
prejudice to his seniority or other rights and privileges previ-
ously enjoyed, discharging if necessary any employee hired to
fill said positions. I further recommend that each of these em-
ployees be made whole for any loss of earnings and benefits he
may have suffered because of Respondent’s unlawful conduct
from the date of his discharge to the date of Respondent’s offer
to reinstatement, in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).54 I shall
also recommend an expunction order.
It having been found that Respondent on January 21, 1998,
unilaterally reduced the pay of the employees in the above-
described unit effective February 1, 1998, without giving their
collective-bargaining representative an opportunity to bargain
over this action. I shall recommend that Respondent be ordered
to bargain over this change, and to pay the unit employees
backpay from the date of the reduction until the earliest of the
following conditions is met: (1) mutual agreement is reached
with the bargaining representative relating to the subjects about
which Respondent is required to bargain; (2) good-faith bar-
gaining results in a bona fide impasse; (3) the failure of the
bargaining representative to commence negotiations within 5
days of the receipt of Respondent’s notice of its desire to bar-
gain; or (4) the subsequent failure of the bargaining representa-
tive to bargain in good faith. San Antonio Portland Cement
Co., 277 NLRB 338 (1985).
Nothing herein shall be construed as requiring Respondent to
rescind the unilateral raises already given to employees as de-
scribed in Conclusions of Law 8 above, and the bargaining
representative’s refusal to consider any proposed raise to the
other unit employees less than the unilateral raises shall not be
evidence of bad-faith bargaining.
[Recommended Order omitted from publication.]

54 Under New Horizons, interest is computed at the “short term”
Federal rate for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment), shall be computed as in
Florida Steel Corp., 281 NLRB 651 (1977).