Elizabeth Motors, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1148 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elizabeth Motors, Inc. and Amalgamated Local
Union 355. Case 22-CA-9149
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENE LLO
On July 31, 1980, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and the General Counsel filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Elizabeth
Motors, Inc., Elizabeth, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Hoard's established policy not to
overrule an administrative law judge's resolutiolns with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his finldings.
2 Member Jenkins would compute interest in accordance with his par-
tial dissent in Olympic Medical Corporation. 250 NLRB 146 (1980)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discourage membership in
Amalgamated Local Union 355 or any other
labor organization, by discriminatorily termi-
nating employees, or in any other manner dis-
criminating against them with regard to their
hire or tenure of employment or any term or
condition of employment.
WE WILL NOT threaten to terminate employ-
ees because of their union activities.
WE WILL NOT discriminatorily prohibit or
restrict employees from servicing or repairing
their cars at our garage, or from using our
telephones for personal calls, in reprisal for
their union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of your right to engage in union or
concerted activities, or to refrain therefrom.
WE WILL offer Peter Mancione immediate
and full reinstatement to his former job or, if
such job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges previ-
ously enjoyed, and WE WILL make him whole
for losses he suffered by reason of the discrim-
ination against him, with interest.
ELIZABETH MOTORS, INC.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: This case
was heard at Newark, New Jersey, on February 27 and
28, 1980. The charge was filed on April 17, 1979, by
Amalgamated Local Union 355 (herein the Union or
Local 355).' The complaint, which issued on June 22,
and was amended at the hearing, alleges that Elizabeth
Motors, Inc. (herein Respondent or the Company), vio-
lated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended. The gravamen of the complaint,
as amended, is that the Company allegedly threatened its
employees with discharge because of their union activity,
eliminated certain of its employees' benefits because of
such activity, and discharged employee Peter Mancione
on or about April 9, because of his union activity. The
Company's answer denies the commission of the alleged
unfair labor practices. 2
All dates herein refer to 1979 unless otherwise indicated.
2 The Company's answer asserts by way of affirmative defense that on
June 22 the Company was informed that the allegation of the charge per-
taining to Mancione was withdrawn. No evidence was presented in sup-
port of this assertion The present record fails to indicate that charge was
ever withdrawn in this respect. The complaint originally requested a re-
medial bargaining order. However, in October the Union requested but
was refused recognition by the Company as the representative of the ser-
vice department employees, whereupon employees engaged in a strike
against the Company The Company capitulated and signed a contract
with the Union which covered the service department employees At the
outset of this hearing I granted the General Counsel's motion to with-
Continued
252 NLRB No. 161
1148
ELIZABETH MOTORS, INC.
All parties were afforded full opportunity to partici-
pate, to present relevant evidence, to argue orally, and to
file briefs. The General Counsel and the Company each
filed briefs. Upon the entire record in this case,3 and
having considered the briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a New Jersey corporation, maintains its
office and place of business at 582 Morris Avenue, Eliza-
beth, New Jersey, where it is engaged in the retail sale
and servicing of new and used automobiles and related
products. In the operation of its business, the Company
annually receives goods valued in excess of $50,000 at its
Elizabeth facility directly from points outside of New
Jersey. I find, as the Company admits, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOI.VED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALEGED UNFAIR ABOR PRACTICES
A. Background: The Company's Service and Parts
Operations, and the Alleged Supervisory Status of John
Oakman and James Brooker
The Company is a franchised Oldsmobile dealer. Its
business substantially consists of the sale of new vehicles,
together with the service operation which is both neces-
sary and incidental to that business. Martin Solodar is
company president. In April 1979, he was the Company's
secretary-general manager. However, at all times materi-
al he was the person in charge of the Elizabeth facility.
In March and April 1979, the personnel complement at
the Elizabeth facility comprised a total of about 23 per-
sons, including sales, office, and shop personnel. The ser-
vice department consisted of 12 persons: Service Man-
ager Oakman; service writer Joseph Kearney; five line
mechanics (alleged discriminatees Peter Mancione, Fred
Miller, Joel Horwitz, Frank Boryszewski, and Joseph
Lesko); new car preparer Martin Street, lubrication man
James Duren; polishers Grover Finch and Ernest Miller;
and porter Charles Moore. The parts department consist-
ed of Parts Manager James Brooker, parts counterman
Robert Davidson, and parts driver Tabor, whose first
name is not indicated in the record. Oakman and
Brooker were, as indicated by their titles, in immediate
charge of their respective departments. The General
Counsel alleges but the Company denies that Oakman
and Brooker were supervisors within the meaning of the
Act. If Oakman and Brooker were not supervisors, then
the service and parts department employees, who com-
prised most of the Company's personnel, functioned
without any immediate supervision. Indeed they would
draw the allegations of he complaint which pertained to the requested
bargaining order
I Certain errors in the official transcript have been noted and are
hereby corrected
have functioned with little supervision of any kind.
Oakman and Brooker, unlike the other personnel in their
respective departments, each reported directly to Secre-
tary General Manager Solodar and to no one else. Solo-
dar operated from his office, which was located away
from the service garage and the parts department (the
latter being adjacent to the service garage). The testimo-
ny adduced of witnesses for both sides indicates that So-
lodar normally did not deal with day-to-day personnel
problems in the service department unless Oakman was
unable to resolve them, that Solodar normally did not in-
tervene in such matters unless requested to do so by
Oakman, and that the employees normally did not ap-
proach Solodar with their problems without first obtain-
ing permission from Oakman. Testimony of witnesses for
both sides also indicates that Oakman, on behalf of the
Company, informed the employees concerning company
personnel policies (including matters which are the sub-
ject of this complaint) and answered their questions
about company policies. The five service department em-
ployees who were presented as witnesses in this case (in-
cluding service writer Kearney) all identified Oakman as
their immediate supervisor. Oakman, who operated from
a standup desk in the service garage, spent little time
doing manual work. He wrote up jobs, inspected vehi-
cles, answered telephone calls, and greeted customers.
He normally assigned work to the mechanics, although
Kearney made such assignments in Oakman's absence or
when told to do so by Oakman when Oakman was busy.
However, Oakman could counterman Kearney's assign-
ments. In many work assignments, Oakman took into
consideration the relative ability and work load of the
mechanics, and would designate priority or rush jobs.
The person who wrote up the job (whether Oakman or
Kearney) normally inspected the mechanic's work.
Oakman approved time off for the service department
employees, signed their timecards, and compiled the me-
chanics' work records which were sent to the Compa-
ny's bookkeeper for the purpose of calculating their
earnings. Oakman's own compensation was substantially
greater than that of the other service department person-
nel. The mechanics received base pay plus a commission
on their own work, and the service writer received a
salary plus commission on the jobs which were written
up by him. However, Oakman received a salary plus
commission on all work performed in the service depart-
ment. Oakman worked for the Company as a service
writer for more than 4 years before becoming service
manager, and his own progression tends to confirm that
the latter position is one of greater responsibility.
Oakman, who was presented as a company witness, testi-
fied on direct examination that he never hired, fired, or
laid off anyone except as directed by Solodar. However,
on cross-examination Oakman admitted that he has rec-
ommended such personnel actions to Solodar, and that
based on Oakman's recommendations, Solodar has autho-
rized him to hire and terminate employees. Oakman also
admitted that he interviewed job applicants. As will be
discussed, Oakman personally terminated Peter Man-
cione, and informed Mancione of the Company's pro-
fessed reasons for his termination. In its brief, the Corn-
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany concedes "that Oakman possessed many of the au-
thorities which are indicative of a supervisory individ-
ual." I find that Oakman had authority, in the Compa-
ny's interest, to hire, terminate, and responsibly direct
the service department employees, to adjust their griev-
ances, and to effectively recommend such actions, and
that he was at all times material a supervisor within the
meaning of Section 2(11) of the Act, and an agent within
the meaning of Section 2(13) of the Act, acting on behalf
of the Company.
The Company contends that Parts Manager Brooker
"was nothing more than a leadman who exercised some
of the powers of a supervisor." The parts department
sold parts and was responsible for seeing that the service
department was supplied with parts. Both Brooker and
parts counterman Davidson had authority to order and
dispense parts, to exercise discretion in doing so, and to
commit the Company's credit. Both also performed the
necessary manual or other routine work in the depart-
ment; e.g., unloading, stocking, and taking out parts.
However, Brooker was in charge of the parts department
and of the two employees who worked with him.
Brooker was compensated at a substantially higher rate
than the other department personnel. All three received
a weekly salary. Brooker's weekly salary was $35 more
than Davidson's and $60 more than the driver's. Brooker
and Davidson also received a monthly commission. Da-
vidson received three-fourths of I percent of parts sales,
but Brooker received 2-1/2 percent of parts sales. As a
result, Brooker earned substantially more than Davidson.
In view of the size of the differential, I do not credit the
testimony of Martin Solodar that Brooker received more
than Davidson simply because Brooker had more senior-
ity. Rather, I find that the differential reflected Brooker's
greater authority and responsibility. Brooker also had the
use of a Company car (Solodar and the salesmen being
the only other personnel who enjoyed this privilege),
and he also represented the Company at General Motors
conferences for service and parts managers. Brooker,
who was presented as a company witness, initially testi-
fied that he never fired, laid off, or promoted anyone,
hired anyone on his own, or recommended discharging
anyone or giving anyone a pay increase. However, in his
investigatory affidavit to the Board, Brooker admitted
that he recommended the discharge of an employee, that
the employee was discharged, and that he (Brooker) has
recommended employees for pay raises. Brooker testified
that Solodar has consulted with him before giving wage
increases. Brooker further admitted that he interviews
applicants for positions in the parts department, that he
interviewed an applicant to replace Tabor as parts
driver, and that Solodar, acting on Brooker's recommen-
dation, authorized him to hire the applicant. Although
this occurred after Mancione's termination, the evidence
fails to indicate that Brooker's authority changed in any
way during the intervening period. Brooker also ad-
mitted that he has authority to give employees time off. I
find that Brooker has authority in the Company's interest
to responsibly direct the work of the parts department
employees, to hire employees, and to effectively recom-
mend hiring and firing and pay raises for employees, and
that he was at all times material a supervisor within the
meaning of Section 2( 1) of the Act, and an agent within
the meaning of Section 2(13) of the Act, acting on behalf
of the Company. See Amalgamated Local Union 355
[Russell Motors, Inc.] v. N.L.R.B., 481 F.2d 996, 1000 (2d
Cir. 1973) (Marquand).
B. The Mechanics' Grievance and the Consequent
Union Organizational Campaign
In early March, line mechanic Fred Miller found a
shortage in his weekly paycheck. Miller complained to
Service Manager Oakman, who referred the matter to
the Company's bookkeeper. The bookkeeper increased
the amount of Miller's pay, but Miller still believed that
the amount was less than that to which he was entitled.
Miller went to the bookkeeper, and learned that he and
the other mechanics were receiving a commission of 45
percent on their work, above the base pay, instead of 50
percent as Miller had assumed. The bookkeeper informed
them that in March 1978, when the labor rate to custom-
ers was increased from $18 to $20 per hour, i.e., by 5
percent, the Company reduced the mechanics' commis-
sion rate from 50 percent to 45 percent. The Company
thereby deprived the mechanics of any share in the in-
crease. Miller then discussed the matter with his fellow
mechanics. The mechanics, through Miller, asked
Oakman for a meeting with General Manager Solodar. A
meeting was set up in Solodar's office, at which Solodar,
Oakman, and the five mechanics were present. Among
the mechanics Miller did most of the talking, but all ex-
pressed their views. They wanted the former 50 percent
commission. Solodar asserted that the change did not
result in a cut in pay, that the service department was
losing money, and that he could not afford to give them
a raise. The mechanics suggested alternative methods of
fixing the customer labor rate, including the Chilton
manual. Solodar said that he would look into these alter-
native proposals, and the meeting ended on this note.
Some 2 to 3 weeks went by and the mechanics did not
hear from Solodar. They asked Oakman to look into the
matter. Oakman checked with Solodar and informed the
mechanics that they would continue to receive the 45
percent commission, and that, if any employee wanted to
discuss the matter further, he would have to see Solodar
alone and on the employee's own time.
At this point (during the week of March 19) the me-
chanics discussed the matter among themselves, and de-
cided that they needed a union. Miller said that he had a
card from a union and would mail it in; i.e., to show
their interest. The card was that of the present Union,
i.e., Local 355. Miller testified that he mailed the card to
the Union. Peter Mancione testified that, without inform-
ing the other mechanics, he acted on another person's
recommendation and telephoned a Mr. Horowitz, who as
it turned out was president of Local 355. However, in
his investigatory affidavit to the Board Mancione did not
mention this alleged phone call, although it would seem
important to his case. Horowitz was not presented as a
witness in this proceeding. However the union business
agent, Howard Kleinberg, testified that Horowitz left a
message for him that the employees at Elizabeth Motors
might be interested in a union. The message did not indi-
1150
FI.IZA13ETH N()TORS. INC
cate the source of Horowitz' lead. Kleinberg further tes-
tified that probably on Monday, March 26. Kleinberg
and organizer Frank Disa went to the Company's prem-
ises to check out the lead. The union representatives en-
countered an employee who they subsequently learned
was Martin Street. They told Street that they heard the
employees might be interested in a union. Street suggest-
ed that they talk either to Fred Miller or Peter Man-
cione. Street went into the building and summoned
Miller. The union representatives talked to Miller. agreed
upon a meeting, and the next day Miller arranged a
meeting at his home on the following evening (Wednes-
day, March 28). In view of Mancione's failure to men-
tion his alleged call to Horowitz in his affidavit, the fail-
ure of the General Counsel to produce the testimony of
Horowitz, who was the only person who could have
corroborated Mancione's testimony in this respect, if it
were true, and the undisputed fact that the mechanics
agreed that Miller would contact a union, I do not credit
the testimony of Mancione that he contacted the Union.
I find that, prior to March 28, Fred Miller played the
leading and only active role in the union campaign.
The first union meeting was held at Fred Miller's
home on March 28. Union Representatives Kleinberg
and Disa and the five line mechanics were present. All of
the mechanics signed union authorization cards. Howev-
er, they learned that their authorizations alone were in-
sufficient for organizational purposes, because the line
mechanics comprised less than a majority of the employ-
ees in the service department. After the meeting some of
the mechanics agreed that they should solicit additional
authorizations. Fred Miller and Peter Mancione took the
lead in this activity. Miller approached porter Charles
Moore and service writer Joseph Kearney, and Man-
cione spoke to new car preparer Martin Street and pol-
ishers Grover Finch and Ernest Miller. The next union
meeting was a lunchtime gathering at an eating establish-
ment (variously described by the witnesses who were
present, but which apparently was a glorified hot dog
stand). This meeting was held on Wednesday, April 4.
Present were Union Representatives Kleinberg and Allan
Settlow and the line mechanics, Ernest Miller and
Martin Street. Finch had indicated to Mancione that he
was not interested in a union. Ernest Miller signed a
union authorization card at the meeting. Street was non-
committal, but never signed an authorization card. On
April 5, service writer Kearney obtained an authoriza-
tion card from Fred Miller and signed the card, but re-
turned the card to Peter Mancione. The Union thereby
obtained signed authorization cards from a majority of
the service department employees. The record does not
indicate who if anyone approached lubeman James
Duren, the remaining service department employee. The
foregoing evidence indicates that, after the March 28
union meeting, Fred Miller and Peter Mancione were the
principal union activists, and that the service department
employees were aware of this fact. The record evidence
does not indicate that any further union activity took
place prior to the termination of Peter Mancione on
Monday, April 9.
C. The Con any' Alleged Response to the Union
.4elrivi.' 7The Termination of Peter Mancione and
Additional Alleged Violations of Section 8(al)(l) ojthe
4Act
Peter Mancione testified that at or about 7:45 a.m. on
Monday, April 9, as he was reporting for work, Service
Manager Oakman told him that "I'm going to have to let
you go" because "things are a little tight." According to
Mancione, he protested that he was not at the bottom of
the seniority list. Mancione reminded Oakman that
Martin Street began after him, and that Frank Borys-
zewski left the Company and later returned. (Mancione
testified without contradiction that Street began working
for the Company about 2 years after him, and that Bor-
yszewski began about 2 weeks before Mancione, but left
to work for another firm and returned after 6 to 8
weeks.) According to Mancione, Oakman responded that
Boryszewski had more time than Mancione, and that
Street was the new car man. Oakman testified that he
could not remember whether Mancione said anything
about being senior to other employees, or whether he
mentioned Street or Boryszewski. I credit Mancione.
However, before discussing further the circumstances of
Mancione's termination, including the Company's assert-
ed reasons, I shall at this point consider certain conversa-
tions and meetings which took place before or shortly
after Mancione's termination, and which the General
Counsel contends are evidentiary of the Company's moti-
vations during this period.
Solodar, Oakman, and Brooker, the Company's only
witnesses, all testified that they were unaware of any
union activity prior to Mancione's termination. As indi-
cated at least 11 of the 12 service department employees
were involved in or contacted about the union campaign
on or before April 5. The evidence further indicates that
the campaign was a common subject of conversation in
the shop, and that such conversation and knowledge of
the campaign was not limited to the employees who
were immediately involved. As indicated, when Business
Agent Kleinberg first came to the Company's premises,
Martin Street accurately referred him to Fred Miller or
Mancione, although Street was not involved in the incip-
ient campaign at that time. Line mechanics Mancione,
Lesko, and Horowitz testified in sum that on April 5 or
6, while Mancione was working on a car for the son of
parts counterman Bob Davidson, the younger Davidson
commented to Lesko "what's this I hear about you guys
joining a union." While this comment in itself does not
establish company knowledge of union activity, it does
indicate that knowledge of the campaign had already
spread beyond the service department employees. Joseph
Kearney testified that on April 2 he had a conversation
with John Oakman in which Oakman referred to a repair
job on which Peter Mancione was working. According
to Kearney, Oakman commented that there was "a prob-
lem with Pete for a while" and that he (Oakman) "would
like to fire him." Kearney responded that Oakman would
be in for a fight. Kearney further testified that on an-
other occasion he was talking to Parts Manager Brooker
about a certain part. According to Kearney, Brooker
asked who was working on the job. When Kearney an-
I 151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
swered that it was Mancione, Brooker responded "you
get rid of the growth, you get rid of the cancer." Kear-
ney testified that the two conversations occurred about a
week apart, and not in the same week. However, in his
investigatory affidavit to the Board he indicated that
they occurred during the same week. Kearney testified
that both conversations occurred before he signed a
union card on April 5. Kearney was still in the employ
of the Company at the time of this hearing. He held the
responsible position of service writer, which as indicated
by Oakman's progression, could lead to promotion to a
supervisory position. Kearney was also a friend of James
Brooker. It is unlikely that Kearney would knowingly
testify falsely against the Company or Oakman and
Brooker. In contrast, Oakman and Brooker particularly
were less than candid in their testimony about their su-
pervisory authority. I credit the testimony of Kearney
that the alleged conversations took place. However, I
shall defer my findings as to the time and significance of
these conversations, pending discussion of testimony con-
cerning certain events which occurred on April 9, short-
ly after Mancione was terminated.
Prior to April 9, the Company had a policy of permit-
ting its shop personnel to work on their cars in the
garage on their own time, usually during lunchbreaks,
The Company also had a policy of permitting the service
department employees to use the public telephone for
personal calls. At or about noon on April 9, Service
Manager Oakman assembled most of the department em-
ployees, including the mechanics, and informed them
that these privileges were being revoked. Oakman gave
no reason. The prohibition did not extend to the parts
department personnel, although they used the company
telephones for personal calls, and counterman Davidson,
at least, arranged to have a mechanic work on his car
during the lunchbreak. Oakman testified that he thought
that employees Duren and Horowitz were abusing the
telephone privilege, and that Martin Solodar told him
that both privileges had been abused. However, Solodar
did not testify about the matter, and Oakman never testi-
fied that he thought that the privilege of working on cars
on personal time was being abused. The employees were
never given warning or otherwise informed prior to
April 9 that the Company felt that either privilege was
being abused. Oakman testified that the privileges were
never restored, although he conceded that on one occa-
sion porter Moore worked on his car in the shop. How-
ever, Fred Miller, Horowitz, and Lesko testified, in sum,
that Moore, Martin Street, Grover Finch, and James
Duren continued to work on their own cars in the shop.
These were the same four employees who declined to or
otherwise did not sign union authorization cards.
During the afternoon of April 9 Oakman once again
assembled the shop employees. Oakman, in his testimony,
initially indicated that there was only one meeting, but
subsequently admitted that he convened two meetings
which "might have been [on] the same day." Oakman
told the employees that he did not like their attitude, that
there was disharmony, and that this used to be "a happy
shop" but was not anymore. During the meeting Fred
Miller made a comment to the effect that they were
there to work and not to socialize. Oakman then said
that "If you men don't like it, the door swings both
ways." Oakman did not give the employees any reason
for the alleged disharmony and disatisfactory attitude. If
the Company were concerned with employee morale, it
is unlikely that it would have chosen that same day to
summarily and without explanation revoke privileges
which the employees had previously enjoyed. Oakman
testified that he convened the second meeting because he
believed there was a lot of "racism" and "bigotry" in the
shop. Oakman explained that no one complained about
such alleged problems, but that he heard comments of
"nigger" and that "a couple" of Blacks were not eating
in the same area with the other employees. Oakman testi-
fied that Black employees Ernest Miller, Grover Finch,
and Martin Street regularly ate lunch with the white em-
ployees, but that, a few days or a week before April 9,
he noticed a change when "Marty and Grover" were
missing from their table. Significantly, Oakman did not
testify that Ernest Miller sat away from the white em-
ployees. As indicated, Ernest Miller joined the Union but
Finch and Street did not. It is evident that the division
was along the line of union attitude, and that Oakman
was aware that the division did not result from racial an-
tagonism. Therefore I do not credit the testimony of
Oakman that his speech to the employees about their at-
titude referred to any real or supposed racial conflict.
As indicated, Solodar, Oakman, and Brooker each
denied having knowledge of the union campaign at the
time of Mancione's termination. However, in his investi-
gatory affidavit to the Board, Brooker stated that
"within a day of Pete's layoff' lubeman James Duren
gave Brooker detailed information about the union cam-
paign, including the names of the employees who signed
union cards at the meetings, and other information about
the meetings (which Duren did not attend). I find that
Brooker obtained detailed information about the Union,
but I do not credit his assertion that such information
first came to him after Mancione was terminated. In light
of the evidence described above, I find that by April 2
the Company at least suspected that some kind of organi-
zational campaign was underway, and that by the end of
the week the Company had detailed information about
the campaign, including the fact that Mancione was ac-
tively involved. I find that Oakman probably made his
remark about wanting to fire Mancione Oakman on or
about April 2, and that Brooker probably talked about
"get[ting] rid of the growth" toward the end of that
week. As indicated, Kearney signed a union card on
Thursday, April 5. However, he did not attend either
union meeting before that date. Assuming that Brooker
made the remark on April 5 or 6, he was probably un-
aware that his immediate subordinate had joined the
Union. Brooker's references to "growth" and "cancer,"
in light of the evidence in this case, could only refer to
Mancione's active involvement in the union campaign. I
find that Brooker's statement is evidence that by April 6
the Company was aware of Mancione's involvement in
the campaign, and constituted an implied threat to get
rid of Mancione because of his union activity. Therefore
the Company, by Brooker, violated Section 8(a)(1) of the
Act by threatening to discharge employees because of
1152
EI.IZABETH MOTORS. INC.
their union activity. As for Oakman's earlier remark,
Oakman at this time probably suspected, but did not
know definitely that Mancione was involved in some
kind of concerted activity. There is no objective evi-
dence that Oakman had any reason to be dissatisfied with
the quality of Mancione's work, or that the Company
was then considering firing Mancione for any nondiscri-
minatory reason. I find that, Oakman was vaguely sug-
gesting that if the Company could find some pretextual
reason for getting rid of Mancione, it would do so. Kear-
ney probably did not then fully appreciate the signifi-
cance of Oakman's statement. Indeed Kearney testified
that he did not learn of the union campaign until Fred
Miller asked him to sign a union card. However, the true
implication of Oakman's remark becomes evident when
viewed in light of the Company's subsequent course of
conduct, including the statements and actions of Oakman
and Brooker. I find that Oakman's statement constituted
an implied threat that employees who engaged in union
or other protected concerted activities might be dis-
charged for pretextual reasons. Therefore the Company,
by Oakman, violated Section 8(a)(1) of the Act. I further
find that the threats by Oakman and Brooker may prop-
erly be considered as evidence of the true reason for
Mancione's termination. As to Oakman's statements and
actions on April 9, 1 find that the Company revoked the
mechanics' privilege of working on their own cars and
using the telephones for personal calls, in reprisal for
their union activity. The Company thereby violated Sec-
tion 8(a)(1) of the Act. Hochstetler & Sons, Inc., 224
NLRB 39 (1976); Stoughton Trailers, Inc., 234 NLRB
1203, 1206 (1978); Victor Patino and Nydia Patino d/b/a
Jean Pier, 241 NLRB 774 (1979). I further find that Oak-
man's disapproval of the employees' "attitude" referred
to their union activity and that his assertion that "the
door swings both ways" was an implied threat that em-
ployees might be terminated if they persisted in their
union activity. The Company, through Oakman, thereby
violated Section 8(a)(1) of the Act. Intertherm, Inc., 235
NLRB 693 (1978); St. Anne's Home, Division of DePaul
Community Health Center, 221 NLRB 839, 842, 845
(1975); St. Joseph's College, 228 NLRB 896 (1977). I fur-
ther find that these actions may also be properly consid-
ered as evidence of the true reason for Mancione's termi-
nation.
This brings me back to Mancione's termination. Man-
cione had worked continuously for the Company since
June or July 1975. He was a class A mechanic, i.e., quali-
fied to perform all mechanical work in the shop. Man-
cione and Fred Miller were the only mechanics who did
transmission work. Martin Solodar testified that he alone
made the decision to lay off Mancione. Solodar testified
that on Saturday morning, April 7, he decided to lay off
Mancione after reviewing the repair orders for April 6
and the mechanics' labor records for the previous 3
months. According to Solodar, the records for April 6
showed that the mechanics performed labor amounting
to a total of less than $160, "and we just couldn't contin-
ue on that basis." Solodar further testified that during the
preceeding 3-month period the five mechanics, as a
group, failed to earn their guaranteed minimums more
than one-half of the time. However, Solodar admitted
that Mancione made his minimum on all but 4 or 5 days
during this period. Solodar was in such a hurry to get
rid of Mancione that he telephoned John Oakman at his
home, instructing him to lay off Mancione before Man-
cione began work on Monday morning, and telephoned
the bookkeeper to come in immediately to prepare
checks and other papers for Mancione's separation. The
bookkeeper normally did not work on Saturdays and So-
lodar had never summoned her to come in on a Satur-
day. Solodar testified that he followed this unusual pro-
cedure "rather than embarrass Pete." If Solodar were
concerned about not embarrassing Pete, then it is more
likely that Solodar would have laid him off at the end of
a pay period and at the end of the day, rather than to
attract attention by such a hasty termination. Solodar
and Oakman testified, in sum, that Solodar did not ask
for any recommendation on the layoff and that Oakman
did not offer any. This would seem unusual if Solodar
were concerned about selecting a mechanic for layoff be-
cause of lack of work, since Oakrman was more knowl-
edgeable about the personnel and work in the service de-
partment.
On his direct examination Solodar did not even bother
to offer an explanation as to why Mancione was selected
for the layoff. During cross-examination Solodar testified
that the Company did not have a seniority policy. (In
fact, the service department followed seniority in the se-
lection of vacation periods.) However, Solodar variously
testified that his selection of Mancione was based "partly
on seniority," that he "tried to go by seniority," and that
there were "not really" any other reasons. Solodar went
on to testify that there were problems with Mancione re-
fusing to do certain types of work. However, Solodar
admitted in sum that, while Mancione may have ex-
pressed reluctance to do certain warranty work, he
never actually refused an instruction to perform any
work assigned to him. Solodar testified that, several
months before his layoff, Mancione refused to do a war-
ranty job given to him by service writer Kearney, but
that Mancione did the job after talking to Solodar. Solo-
dar further testified that Mancione physically threatened
Kearney because Mancione did not like the kind of work
which Kearney was giving him. During the present hear-
ing the Company did not question Kearney about these
matters, nor did the Company question Mancione about
these matters when the General Counsel was presenting
its affirmative case. This failure tends to indicate that So-
lodar was engaging in some rationalization on the wit-
ness stand. As a rebuttal witness for the General Coun-
sel, Mancione denied that he ever threatened Kearney.
Mancione testified that on one occasion new car prepar-
er Martin Street refused to repair a power steering leak,
whereupon Oakman assigned the job to Mancione. Man-
cione complained that the job was properly that of a
new car preparer, and asked to talk to Solodar. After
talking to Solodar, Mancione performed the job. I credit
Mancione. Solodar did not indicate in his testimony that
Mancione's job classification or abilities played any part
in his selection for layoff. However, in early 1980, when
line mechanic Frank Boryszewski left the Company, the
Company did not recall Mancione, but instead hired a
1153
IECISI()NS ()OF NATI()NAL .AH()BOR RELATIONS BO()ARD
new mechanic. When asked why he did not recall Man-
cione, Solodar testified that because Boryszewski was a
B mechanic, i.e., not qualified to perform the most diffi-
cult work, Solodar preferred to replace him with another
B mechanic.
Assuming that Solodar were inclined toward laying off
one employee in the interests of economy, and assuming
further that in selecting an employee for layoff, Solodar
applied the criteria which he claimed to have taken into
consideration, it is unlikely that Solodar would have laid
off Mancione. Rather it is more probable that Solodar
would have laid off either Martin Street or Frank Boryc-
zewski. Street had considerable less seniority than Man-
cione, and Mancione was fully qualified to do the work
of a new car preparer, which required less skill than that
of a line mechanic. Street, unlike Mancione, had refused
outright to perform an assigned job. Boryszewski had
less accumulated seniority than Mancione, was less quali-
fied than Mancione, and was consistently the lowest pro-
ducer among the five line mechanics. However, Street
opposed the Union, and, although Boryszewski joined
the Union, he did not actively solicit other employees to
join. Moreover, the Company's economic situation as of
early April was not such as to suggest the need for an
immediate and hasty layoff. The Company had gone
through the normally slow winter months without a
layoff and, as in previous years, service department work
increased with the coming of spring. Solodar in his testi-
mony conceded that the Company's sale of new cars was
increasing, and that business was essentially the reason
why the Company had a service department. The depart-
ment was normally or often not a profit-making oper-
ation because the manufacturer, in reimbursing the dealer
for the required servicing of new cars, allowed less time
for labor than that normally charged to the public. In
these circumstances it is evident that the Company could
operate most effectively, reduce any economic loss to a
minimum, and attract customers, by retaining if possible
fast and competent mechanics. Therefore, if the Compa-
ny were acting for economic reasons, it is unlikely that
Solodar would have selected Mancione for layoff. Man-
cione was one of the Company's most qualified mechan-
ics, and the Company's records also indicate that he was
one of the most productive.
The Company argues that, if it were inclined to termi-
nate an employee because of union activity, it probably
would have selected Fred Miller, who initiated the union
campaign, rather than Mancione. However, this does not
follow. During the period which followed the first union
meeting Miller and Mancione were equally active in so-
liciting their fellow employees to join the Union. Miller
had worked for the Company for 33 years, and Solodar
may well have regarded him as an indispensible employ-
ee. Moreover, the implied threats of discharge by
Oakman and Brooker, which preceded Mancione's termi-
nation, tend to indicate that the Company regarded Man-
cione as the troublemaker who converted what began as
a limited grievance into a general union organizational
campaign. In all of the circumstances, I find that the
Company terminated Mancione because of his union ac-
tivity, and thereby violated Section 8(a)(l) and (3) of the
Act.
CONCIUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, the Company has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
4. By discriminating in regard to the tenure of employ-
ment of Peter Mancione, thereby discouraging member-
ship in the Union, the Company has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1) and (3) of the Act, I shall recom-
mend that it be required to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Company discriminatorily ter-
minated Peter Mancione, it will be recommended that
the Company be ordered to offer him immediate and full
reinstatement to his former job or, if it no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make
him whole for any loss of earnings that he may have suf-
fered from the time of his discharge to the date of the
Company's offer of reinstatement. The backpay for said
employee shall be computed in accordance with the for-
mula approved in F W. Woolworth Company, 90 NLRB
289 (1950), with interest computed in the manner and
amount prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). 4 It will also be recommended that the
Company be required to preserve and make available to
the Board, or its agents, on request, payroll and other re-
cords to facilitate the computation of backpay due.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 5
The Respondent, Elizabeth Motors, Inc., Elizabeth,
New Jersey, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
4 See, generally, Isis Plumbing & Healing Co., 138 NLRB 716. 717-721
(1962).
In the event no exceptions are filed as provided by Sec. 102.46 oF the
Rules and Regulations of the National Labor Relations Board. the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1154
itIZABEH11 M()T()RS, INC.
(a) Discouraging membership in Amalgamated Local
Union 355, or any other labor organization, by discrimin-
atorily terminating employees, or in any other manner
discriminating against them with regard to their hire or
tenure of employment or any term or condition of em-
ployment.
(b) Threatening to terminate employees because of
their union activities.
(c) Discriminatorily prohibiting or restricting employ-
ees from servicing or repairing their cars at its garage, or
using its telephones for personal calls, in reprisal for their
union activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which is
found necessary to effectuate the policies of the Act:
(a) Offer Peter Mancione immediate and full reinstate-
ment to his former job or, if such job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or other rights, and make him whole for
losses he suffered by reason of the discrimination against
him as set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of hackpay due.
(c) Post at its Elizabeth, New Jersey, place of business,
copies of the attached notice marked "Appendix. "6
Copies of said notice on forms provided by the Regional
Director for Region 22, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
In he event that this Order is enforced b a Judgment of a United
States Court of Appeals. the sords in the notice reading "Posted he
Order of the Naitonal ahbor Relations Board" shall read "Posied Pursu-
ant to a Judgment (of the United Stales Cour of Appeals Eniforcing an
Order of the National Lahor Relations Board"
S1155