Frascona Buick, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1983

266 N.L.R.B. 636 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frascona Buick, Inc. and Albert Reinholz and
Rodney A. Boerst and Ernest J. Garr. Cases
30-CA-6666, 30-CA-6666-2, and 30-CA-6974
April 20, 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On October 8, 1982, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, Charging Party Rein-
holz filed exceptions and a supporting brief, and
Respondent 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
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order.
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, Frascona
Buick, Inc., Milwaukee, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
i The Administrative Law Judge's reference, in fn. 17 of his Decision,
to p. 250 of the transcript is incorrect; the evidence referred to in that
footnote is on pp. 280-281 of the transcript.
I Charging Party Reinholz has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
his findings.
* In affirming the Administrative Law Judge's conclusion that Re-
spondent did not act unlawfully in discharging Charging Party Reinholz,
Member Jenkins agrees with the Administrative Law Judge's finding that
the General Counsel has failed to establish, by a preponderance of the
credible evidence, that Respondent had knowledge of concerted activity
on Reinholz' part at the time of his discharge. Accordingly, Member Jen-
kins finds it unnecessary to pass on, and thus he does not rely on, the
Administrative Law Judge's alternative analysis of the legality of Rein-
holz' discharge under Wright Line, 251 NLRB 1083 (1980).
In the absence of exceptions thereto, Member Hunter adopts the find-
ing of violations in connection with Respondent's inquiries concerning
employee pretrial Board affidavits.
266 NLRB No. 117
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge:
These consolidated cases were heard in Milwaukee, Wis-
consin, on June 14, 15, 16, and 17 and July 6 and 7, 1982,
based on unfair labor practice charges filed on August
20, 1981, (Case 30-CA-6666, filed by Albert Reinholz),
September 21, 1981 (Case 30-CA-6666-2, filed by
Rodney A. Boerst), and February 18, 1982 (Case 30-
CA-6974, filed by Ernest J. Garr), and complaints issued
by the Regional Director for Region 30 of the National
Labor Relations Board, herein called the Board, on Oc-
tober 30, 1981 (Cases 30-CA-6666 and 30-CA-6666-2),
and March 25, 1982 (Case 30-CA-6974). The complaints,
which were consolidated for hearing, allege that Fras-
cona Buick, Inc., herein called Respondent, violated Sec-
tion 8(aXl) of the National Labor Relations Act, herein
called the Act, by discharging Reinholz, Boerst, and
Garr because they had concertedly complained to Re-
spondent regarding wages, hours, and working condi-
tions and by unlawfully interrogating its employees
during pretrial preparation. Respondent's timely filed
answer denies the substantive allegations of the com-
plaint.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue
orally. The General Counsel and Respondent have filed
briefs which have been carefully considered.
Based on the entire record, including my observation
of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS-PRELIMINARY
CONCLUSION OF LAW
Respondent is a Wisconsin corporation engaged at
Milwaukee, Wisconsin, in the retail sale and service of
new and used automobiles. Jurisdiction is not in dispute.
The complaints allege, and Respondent admits, that Re-
spondent, in the course and conduct of its business oper-
ations during the past calendar year, derived gross rev-
enues in excess of S500,000 and purchased and received
goods and services valued in excess of $50,000 directly
from points located outside the State of Wisconsin. I find
and conclude that Respondent is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent has owned and operated its Buick and Fiat
dealership, which consists of sales, mechanical service,
and automotive body repair facilities, since approximate-
ly 1956. Each year, since at least 1977, Respondent has
sustained substantial losses or just broken even. It is un-
disputed on this record that Respondent's mechanical
repair and body shop operations had a poor reputation in
636
FRASCONA BUICK, INC.
the community; Respondent's president, Anthony Fras-
cona, believed that the service and body shop functions,
known in the trade as the back end or back shop, were
not carrying their share of the business. Moreover, he
believed that the negative reputation of the back end was
costing the dealership lost sales. l Additionally, during
1980 and 1981, General Motors Buick Motor Division
conducted an audit of warranty work performed in Re-
spondent's back shop. It ultimately charged Respondent
approximately $32,000 for warranty work performed
during repeat visits by customers, which work should
have been performed properly or differently with less
comebacks. In early 19812 Buick advised Respondent
that, because of the continued losses, the complaints
which had been registered with the Buick Motor Divi-
sion, and the warranty problems, it should either "make
a change or sell the dealership."
In June, Respondent retained a consultant, Lane San-
ford, to advise it on steps it might take to improve the
efficiency of its service department.s Sanford's examina-
tion of Respondent's physical plant, the customer
records, and the other data corroborated the existence of
substantial problems with respect to the efficiency of the
service departments. Similarly, Gary McCulloch, Re-
t These opinions are supported by customer satisfaction reports pre-
pared by Buick based upon surveys of Respondent's customers and those
of other dealerships in the same zone.
I All dates hereinafter are in 1981 unless and until otherwise specified.
s The General Counsel contended that Sanford was an agent of Re-
spondent, possessing supervisory authority over Respondent's managers
and employees. Respondent denied that Sanford possessed any such au-
thority and moved to strike all statements by Sanford which were offered
to support the General Counsel's theory of violations herein. The evi-
dence establishes the following: In return for a fixed fee, Sanford con-
tracted with Respondent to evaluate the service, body shop, and parts de-
partments in regard to attitude, appearance, and performance. He was ul-
timately to prepare a handbook for the operation of those departments.
Sanford claimed that, while he had no role or responsibility in regard to
the tenure of employees, he could effectively recommend the termination
of managerial employees. It is unclear whether he believed that he had
such authority pursuant to his agreement with Respondent or whether he
was talking in more general terms with respect to the weight given his
recommendations by any client. Frascona and James Basso, Respondent's
general manager and Frascona's nephew, denied that Sanford possessed
any such authority and there is little evidence to refute their denial. Re-
spondent's former service manager, Gary McCulloch, testified that, when
he was introduced to Sanford, Frascona told him that Sanford "had full
authority in the dealership as if it was him or Mr. Basso ... telling me
orders, to cooperate and do as he asks ... " Frascona and Basso denied
that any such instructions were given. Thereafter, Sanford sat in with
Basso while Basso spoke with persons to be hired to replace the existing
back shop employees and voiced some opinions on retention or hiring.
Basso gave Sanford's recommendations no weight. He followed his own
judgment; certain actions he took paralleled what Sanford thought best,
others did not. Based on the foregoing, I must conclude that, even if the
testimony of McCulloch, described above, is credited, the evidence is in-
sufficient to sustain the General Counsel's burden of proving that Lane
Sanford was an agent and/or supervisor of Respondent such that his
statements would be binding upon it. Nonetheless, in view of Sanford's
close relationship with Respondent, particularly in regard to the back
shop operations and the changes made therein, his participation in various
meetings and discussions concerning the termination of employees and
their replacement by others, and his lack of interest in supporting the
General Counsel's case, I must conclude that statements attributed to him
are not so inherently unreliable as to warrant their exclusion from this
record under the hearsay rule. See RJR Communications, 248 NLRB 920
(1980), and cases cited therein. See also Colony Kitchens, 217 NLRB 671
(1975). Given Sanford's involvement and participation, as described
herein, the statements attributed to him concerning Respondent's motiva-
tion, while not controlling, are entitled to consideration.
spondent's service manager until mid-August, confirmed
that there were serious problems in regard to the quality
of work and the reputation of the back end.4
Sometime in or about May or June, Frascona was ap-
proached by Richard Quinlevan, president of Quinlevan
Buick, a rival dealership in Milwaukee which possessed a
reputation as having the foremost back shop in that city.
Quinlevan Buick's sales, however, were not sufficient to
sustain its continued business operations and Richard
Quinlevan offered his back shop to Frascona. In or about
mid-July, Frascona and Quinlevan executed a series of
agreements providing essentially for the assumption of
the Quinlevan service departments, including the em-
ployees thereof, into the Frascona operations, retention
of Quinlevan as a consultant, acquisition by Respondent
of Quinlevan's customer lists, and Quinlevan's efforts to
direct his former customers to Frascona for sales and
service.
Having concluded the agreement with Quinlevan,
Frascona left the details of which Quinlevan employees
would be brought into the Frascona operations and
which Frascona employees would be terminated in the
hands of James Basso, his general manager (and
nephew), and departed on vacation. Basso observed the
Quinlevan employees at work and met with the majority
of them in a group meeting. Basso's observations of these
employees, together with his review of Quinlevan's serv-
ice records and customer satisfaction reports, satisfied
him that Quinlevan's service departments were superior
to Frascona's and that the Quinlevan employees pos-
sessed superior work attitudes to those possessed by his
own employees. In what Basso characterized, both in his
conversations with various individuals before and after
July 30 and in his testimony in this proceeding, as a
"clean sweep," Basso directed the termination of a sub-
stantial number of Respondent's service department em-
ployees and the hiring of virtually all the employees
from Quinlevan's service departments, including some
managers.
As of July 30, Respondent had had 18 employees in its
service, body shop, and parts departments, including the
departmental managers. Eleven of these, the body shop
manager, one bodyman, four technicians (mechanics), in-
cluding two who specialized in Fiat service, s the parts
department manager, the parts counterman, the parts
helper, the parts driver, and a service writer, were termi-
nated. Included among the terminated employees were
Charging Parties Albert Reinholz, a technician, and
Rodney Boerst, a bodyman.
Respondent retained seven employees from the affect-
ed departments. One was Ernest Garr,6 one of Respond-
ent's two service writers. Garr had originally been se-
lected for discharge by Basso; he was retained on the
specific urgings of McCulloch after he demonstrated par-
ticular loyalty or responsibility toward his job by not
leaving the facility on receiving his final paycheck as the
4 McCulloch also believed that the situation was improving at the time
of the events herein.
a One of the Fiat technicians, Wojnoski, had been employed between 2
and 3 months and was about to complete his probationary period.
6 The Charging Party in Case 30-CA-6974.
637
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees did. McCulloch also intervened success-
fully on behalf of Chester Borkowski, a general and
heavy-duty technician. Borkowski had worked for Re-
spondent during the summer of 1980 and had been re-
hired in April 1981. According to Basso, McCulloch
argued for his retention on the basis that he had only re-
cently hired Borkowski after having convinced him to
leave his prior employment.s Basso testified that Joe Mi-
litello was retained because he was a Fiat technician em-
ployed on an hourly basis whom the Company had been
training for a year and a half to work in that capacity.
Basso did not believe that he had anyone coming over
from Quinlevan who was qualified to work on Fiats. Ad-
ditionally, Basso testified that he did not wish to termi-
nate either trainees or hourly paid employees. George
Bark, who was retained, was described by Basso as a
trainee in the body shop. McCulloch described Bark as
an apprentice with 6 to 8 months of experience at Fras-
cona. Mike Hack, who was retained, was an hourly paid
employee in the service department, doing lubrications.
Daryl Hinz, a body shop employee, was retained, ac-
cording to Basso, because he had only been hired a day
or two before the terminations. Nathaniel Smith, another
body shop employee, was retained, Basso testified, be-
cause he was an elderly employee whose employment
preceded Respondent's ownership of this business. When
asked whether Smith was associated with the problems
Respondent was experiencing in the back end, Basso tes-
tified that Smith "stays to himself. He can't even hear
barely. You can barely hear the guy." Basso did not as-
sociate him with Respondent's problems.
Immediately following the termination of the 11 Fras-
cona employees, Respondent "transferred" 18 employees
from the Quinlevan back end, virtually all of the Quinle-
van employees, to its operation. The 18 included 8 tech-
nicians, a body shop manager, 3 body shop men, a parts
department manager, a parts department driver, a parts
counterman, a service writer, and 2 car jockeys. The
Quinlevan employees assumed their duties at Frascona
with no change in their wages or benefits.
The General Counsel does not contend that the over-
all termination of Respondent's own employees and their
replacement by employees from Quinlevan were discri-
minatorily motivated. However, it is the General Coun-
sel's contention that Albert Reinholz and Rodney A.
Boerst were included with the other nine terminated em-
ployees because they had engaged in protected concert-
ed activities. Reinholz was Respondent's most senior me-
chanic and he and Boerst were the most senior employ-
ees terminated on July 31.
B. Albert Reinholz
Reinholz had been employed by Respondent for 14
years. He was a general mechanic and had performed
I Borkowski recalled that, after initially being told that he would be
terminated, McCulloch said that he would not be. According to Bor-
kowski, McCulloch claimed to have argued on his behalf that Borkowski
caused no trouble, did his work, paid attention to his own business, and
did not bother anyone. In light of Borkowski's testimony, which corrobo-
rates that of Basso, it would appear that McCulloch was mistaken when
he testified that Borkowski was not initially selected for termination and
implied that he did not discuss Borkowski's retention with Basso.
heavy-duty mechanical work until 1977 when he sus-
tained a back injury. s His work included highly complex
and novel mechanical and electrical repair assignments
and it is undisputed that he was an excellent mechanic.
In addition to being highly skilled, Reinholz was highly
productive; he was the most productive employee in the
mechanical service department.9 Reinholz averaged
booked time of 60 hours per week while working a 44-
hour workweek. His earnings, and those of the dealer-
ship, reflected his productivity.
According to Anthony Frascona, Reinholz was never
happy during his employment with Respondent. He con-
stantly griped notwithstanding that he made the most
money of any of the service technicians, voiced his un-
happiness with his job and with Respondent to customers
and others, and "bad mouthed" both Frascona and the
Company. Frascona also believed that, because of his
skills, Reinholz was able, through threats to quit, to
force the various service managers under whom he
worked to cater to his wishes, to assign him the kinds of
jobs he wished to do. Frascona referred to Reinholz' al-
leged ability to control the service managers as "wag-
ging the service manager's tail" or "the tail wagging the
dog." Reinholz was, he claimed, a "prima donna." This
he had been told by a number of the managers over the
years of Reinholz' employment. McCulloch, the service
manager during the last year of Reinholz' employment,
testified that Reinholz had created no problems for him;
however, he acknowledged that Reinholz had threatened
to quit on a number of occasions during protests (dis-
cussed in greater detail, infra) about wages, about insur-
ance, and particularly about the flat rates for warranty
work set by General Motors (an issue over which Re-
spondent had no control). McCulloch had mentioned
Reinholz' threats to quit to Stowers, Respondent's office
manager. Basso had also heard of these threats. Fras-
cona's general testimony concerning Reinholz' unhappi-
ness and other behavior or characteristics was corrobo-
rated, to some extent, by other witnesses. Sanford had
spoken to Reinholz as part of his review of the back
shop operations. He noted that Reinholz demonstrated a
negative attitude, a "deep unhappiness about being at
Frascona," and testified that Reinholz had complained to
him about the amount of money he (Reinholz) was
making. Sanford also noted that Reinholz was able to
exert control over his managers because of his value as a
technician. One of Respondent's customers, a local police
officer who regularly had his cars serviced in Respond-
ent's shop by Reinholz, similarly corroborated Fras-
cona's testimony to the effect that Reinholz voiced his
unhappiness with his employer to customers.
' While Anthony Fraacona denied knowledge of this injury and ex-
pressed some concern or complaint about Reinholz' unwillingness to do
heavy-duty work since 1977, it is clear and not disputed that Respondent
was on notice of Reinholz' injury and the necessity that he refrain from
certain heavy-duty aspects of the mechanical work.
· Automotive repair work is charged to the customer at an hourly rate
on the basis of the preestablished time that a given job is supposed to
require, the "book rate." Most mechanics, who receive a percentage or
dollar amount based on booked rather than actually worked hours, are
able to perform those tasks in substantially less than the book time.
638
FRASCONA BUICK, INC.
Chet Borkowski was a service technician who worked
at the station adjacent to Reinholz'. He testified that
there had been occasions when Reinholz would tell the
service manager to assign work to Borkowski rather than
to Reinholz. However, this was done pursuant to an un-
derstanding between Reinholz and Borkowski that, when
available, Borkowski would do the engine and transmis-
sion work and Reinholz would work on electrical sys-
tems and carburetors.
Frascona testified that he was greatly concerned about
his employees performing the kinds of work at their
homes which they were paid to do in his shop; he testi-
fied that such conduct would warrant discharge. He fur-
ther claimed that it had been common knowledge for
many years that Reinholz was doing mechanical work at
home. 1 0
Notwithstanding all the foregoing, particularly Fras-
cona's opinion of Reinholz as something other than a
"loyal employee" and his suspicion that Reinholz was di-
verting mechanical work from the Frascona shop to his
own side business, Reinholz continued to be employed
by Respondent for 14 years without warnings, repri-
mands, or any other form of discipline.
The General Counsel contends that Reinholz' com-
plaints related to wages, hours, and other terms and con-
ditions of employment had been voiced by Reinholz at
the behest and on behalf of other employees, and were
therefore concerted activities protected under Section
8(aXl) of the Act. The General Counsel further contends
that Reinholz' protected concerted activities engendered
the animosity of Respondent's officers, particularly Fras-
cona, which animosity was characterized by Frascona's
repeated references to him as "an agitator."
Reinholz testified in general terms to the effect that he
had repeatedly complained to the service managers or to
Basso about such things as the labor rates, the insurance
costs, carbon monoxide fumes, and asbestos dust in the
work atmosphere, and similar matters relating to work-
ing conditions throughout his 14 years of employment.
The other employees, he testified, discussed these com-
plaints with him, he would then discuss them with some
member of management, and he would report manage-
ment's answers back to his fellow employees. His testi-
mony was, to some extent, corroborated by McCulloch
who described Reinholz as the spokesman for the service
department. McCulloch testified that the men com-
plained to Reinholz about such things as Respondent's
increases in the labor rates charged to customers without
corresponding increases in the technicians' share of that
increase. Reinholz, he said, would bring these complaints
to him and he would bring back to Reinholz whatever
answer higher management provided. McCulloch based
this testimony on his observations of Reinholz gathering
with other employees during their lunch hours, after
which Reinholz would come to him with complaints
which Reinholz would state were on behalf of everyone.
Chester Borkowski, who worked alongside Reinholz
from July through September 1980 and again from June
until the end of July 1981, confirmed that Reinholz made
10 Vreeland, the police officer-customer, had heard this from Reinholz
but never told FrasconL
frequent and vocal complaints about the GM warranty
rates. However, during these periods he had not ob-
served other employees bringing their complaints to
Reinholz. Everyone, he said, spoke for himself.
More specifically, Reinholz testified in regard to par-
ticular complaints he had raised. On one occasion many
years earlier, during a service meeting, he said, he had
asked Frascona about increasing pay and fringe benefits.
Frascona politely rejected his request at that time. On
the following morning, however, Frascona pointed to
him, referred to him as "the hero," an agitator, and a
troublemaker, said that Reinholz made enough money
and did not have to be a hero for other employees, and
suggested that he leave if he did not like it there. When
Reinholz asked whether he was being fired, Frascona did
not reply. " Shortly after this incident, Frascona ap-
proached Reinholz and apologized for what he had said.
Frascona and Reinholz had a few conversations after
that time. Reinholz described no further examples of his
bringing complaints directly to Frascona.
However, on another occasion, about 2 years prior to
the hearing herein, Frascona, in an apparent jest, made a
comment to Reinholz as he was leaving the facility at
the start of a vacation. He referred to the agitator in
washing machines and told Reinholz not to agitate the
employees too much while he was away.
About 3-1/2 years prior to this hearing, Reinholz had
complained to his service manager, Tom Rich, about the
length of vacations for employees with 10 or more years
of service. Following his complaints, the vacations were
lengthened. Similarly, his complaints about holiday pay
some 2-1/2 years ago resulted in the employees receiving
one half a day's pay for Christmas. At some unspecified
time, but prior to McCulloch's tenure, Reinholz and
Boerst complained to the service manager about the cost
of cleaning their uniforms. As a result of this admittedly
concerted activity, Respondent undertook to pay the
entire cost of cleaning the uniforms.
In June 1980, on the day that McCulloch was hired as
service manager, Frascona took him into the office and
told him "about his agitators and cliques," naming Rein-
holz, Boerst, and John Lattski. " He further described all
three as prima donnas and defined his use of the term
"agitator" as meaning that "they wanted to do the jobs
only they liked and not what they were given by the
service writer or the service manager." Frascona further
said, at that time, that he thought "Reinholz was the tail
that wagged the dog."
In April there was a change in Respondent's insurance
carrier; the cost increased and the benefits were reduced.
Reinholz complained to McCulloch and McCulloch al-
legedly offered to see what he could do. McCulloch tes-
tified that, even prior to Reinholz' complaint, he had
questioned both Frascona and Stowers, the office man-
11 Fruscona initially testified that he had no recollection of this inci-
dent. He then denied making the comments attributed to him by Rein-
holz. Reinholz' testimony, however, was corroborated by that of Rodney
Boerst and, on balance, I find that this corroborated and specific testimo-
ny is more credible than Fracona's denials thereof.
I" Frascona's comments about Boerst will be described in greater
detail, itfra. John Lattaki retired in June 1981 and was subsequently re-
hired after the terminations of Reinholz and Boerst.
639
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ager, about the changes in the insurance program; he did
not bring that complaint to their attention or to the at-
tention of anyone else in higher management after Rein-
holz' complaint to him. He did not tell anyone that Rein-
holz had voiced such a complaint. Similarly, Reinholz
complained to McCulloch in June about the percentage
of the labor rate which the mechanics were receiving.
McCulloch offered to try to get a higher percentage for
Reinholz. Reinholz refused it unless all the mechanics
got the same increase.' McCulloch brought this com-
plaint to Frascona and Basso but did not mention that
the complaint had been initiated by Reinholz. In the
same vein, Reinholz and others had complained to
McCulloch about the odor of their uniforms when those
uniforms were returned from the cleaning service. These
complaints, McCulloch testified, were common knowl-
edge and he did not mention them to his superiors. Both
Frascona and Basso acknowledged their awareness of
Reinholz' repeated threats to quit his employment but
both denied knowledge, either direct or through other
supervisors, of Reinholz' complaints about wages or
other terms and conditions of employment. 4
Frascona did not deny having referred to Reinholz,
from time to time, as an agitator. It was a word, he said,
that Reinholz used to describe himself and one which he
used in regard to other people, including his spouse.
Frascona's use of it, he testified, was meant to connote
Reinholz' unhappiness, his griping, and his picking and
choosing of those jobs which would be most remunera-
tive. Basso admitted hearing Frascona's references to
Reinholz as an "agitator." The last such occurrence, he
claimed, was a couple of years earlier, and the context of
that usage involved Reinholz' looking for other jobs and
threatening to quit.
Basso had met with Richard Quinlevan and the Quin-
levan employees around the beginning to middle of the
week ending on Friday, July 31. He made the decisions
as to which Frascona employees would be terminated or
retained during the morning of July 30. The decisions,
according to Frascona, Basso, and Sanford, were made
by Basso alone; Frascona was on vacation as of July 30
and did not become involved in the specifics of who
would be hired and who would be terminated.' Basso
prepared a list of individuals to be terminated; he denied
preparing any list of persons to be kept. McCulloch saw
this list, which did not include his own name, and
15 As discussed infra, Body Shop Manager Roeske had observed Rein-
holz and Boerst discussing this problem immediately prior to Boerst's
complaint thereon to Roeske. He also observed Reinholz go to McCul-
loch's office when Boerst came to him.
" McCulloch terminated his employment with Respondent shortly
after, and at least partly as a reaction to, the discharges of July 31. His
testimony, as a witness called by the General Counsel, supports and con-
tradicts aspects of both the General Counsel's and Respondent's cases.
ls Frascona had, of course, negotiated the basic transaction with Quin-
levan. Moreover, he had voiced his concern about the alleged deficien-
cies of both Reinholz and Boerst, particularly Reinholz' repeated threats
to quit, his bad mouthing of Respondent, the work both of them were
believed to be performing at their homes, and his suspicions that Boerst
was unauthorizedly taking company supplies and materials, to Basso on
earlier occasions. He denied discussing any of this with Basso within a
year of the terminations and further denied that any of these alleged defi-
ciencies were the grounds on which either individual was terminated.
became concerned that his own job was in jeopardy.'I
He contacted Basso, who was at the Quinlevan dealer-
ship, by telephone and expressed his concern. Basso as-
sured him of his own job security and suggested that the
changes which were going to be made would be pleasing
to McCulloch. At this point, according to McCulloch,
Basso asked what McCulloch thought of Reinholz.
McCulloch praised him highly, stating that Reinholz was
"the finest technician I have ever had the pleasure to
work with . . . an asset to Frascona Buick . . . a one
man team there at times." Basso denied that there was
any mention of Reinholz in this telephone conversation
and McCulloch's cross-examination description of this
conversation contains no reference to Basso asking his
opinion of Reinholz.
Basso and McCulloch had a face-to-face meeting later
that morning. According to McCulloch, Lane Sanford
was also present. At that time, as McCulloch recalled the
conversation on direct examination, Basso stated:
. . he had made a decision to get rid of Al Rein-
holz along with the rest of them. He was cleaning
house from front to back. He understood that Al
was an agitator, that he has always been and still is
an agitator. He understood my position that I was
over a barrel because good technicians were hard to
come by and they were. And Al and his agitation
was more or less leading me on. In other words, I
think his exact words was "the tail was wagging the
dog." . . . I would have good technicians coming
in from Quinlevan Buick and I wouldn't have to put
up with this any more. And I had choice techni-
cians coming in from Quinlevan that would do the
job as good as the people I had.
However, describing this conversation on cross-examina-
tion, McCulloch made no reference to Reinholz being
called an agitator. He testified that Basso said he had un-
derstood that Reinholz had him over a barrel because
good technicians were hard to come by, which was why
he (McCulloch) had "put up with Al's nonsense," and
that he "no longer had to put up with Al and Al's likes
with his complainings . . . dictating to me what to do.
In other words, the tail wagging the dog. [Basso] was
cleaning house from front to back regardless of how
good Al was." McCulloch allegedly made one more
effort to save Reinholz' job. Basso denied that there was
any discussion of Reinholz in this conversation; Sanford
was not questioned in regard to it.
'6 McCulloch testified that he observed a "people to keep" hlist on
Stowers' desk on Thursday, July 30. That list, he said, did not include his
name but did include Reinholz'. I must conclude that McCulloch was
mistaken. In so concluding, I note that there was never any intention to
terminate McCulloch; therefore, it is improbable that any "people to
keep" list which did not include his name would have been prepared.
Additionally, McCulloch told Reinholz that he had seen Reinholz' name
on a list of names on Stowers' desk, which list he "felt ... were the
people that were going to be kept." It seems probable that McCulloch
assumed, from seeing the inclusion of so highly regarded a mechanic as
Reinholz on that list, that those were the persons to be retained. I believe
he drew an erroneous assumption and subsequently remembered his as-
sumption as fact.
640
FRASCONA BUICK, INC.
In the afternoon of July 30, McCulloch called each of
the service department employees who were to be termi-
nated into his office; Reinholz was first. As testified to
on direct examination by McCulloch, who admitted that
his recollection of the events of July 30 was less than
perfect, Reinholz was told that he was being discharged
along with the rest of the employees and, when he asked
why, McCulloch stated, "I assume it was the same
reason I heard all the while I worked for Frascona
Buick, that he was an agitator." When questioned about
his conversation on cross-examination, McCulloch made
no mention of having told Reinholz that his agitation
was the reason for his discharge. In that examination,
McCulloch ackowledged having told Reinholz that he
"assumed the reason he was being fired was because the
Quinlevan people were coming in."
McCulloch's conjectural casting of his reference to
Reinholz' agitation as the reason for his selection, his ref-
erence to Reinholz' agitation when testifying on direct
examination, and his omission of references to agitation
from his cross-examination testimony, in conjunction
with the other differences between his direct and cross-
examination testimony, as described herein, require me to
find that Basso's testimony, denying any references to
Reinholz in either of the July 30 conversations with
McCulloch, is the more accurate. If there was any dis-
cussion of Reinholz, I am compelled to conclude that
Basso, at least, made no reference to him as an agitator.
Reinholz testified that McCulloch told him that he
was being discharged "because of [his] agitation." His re-
quest that McCulloch put this in writing was rejected.
On July 31, at the conclusion of their last day of employ-
ment, the employees received letters, signed by Jerome
Holmstead, the used car manager, stating merely that
they were terminated as of that date.
One of the persons hired from Quinlevan was Otto
Kovacs. Kovacs was a service technician, characterized
by Ernest Garr as a fine mechanic. Basso testified that he
knew that Reinholz could be replaced by Kovacs, whose
abilities had been praised by the Buick district manager.
On August 3, Jeff Jackson, a Frascona customer and
acquaintance of Reinholz, was at the Frascona facility to
have his car serviced. While there, he was approached
by Lane Sanford, whom he had previously met. He com-
mented on the new people in the facility and Sanford
stated, "Yes, I had to get rid of a few people . . . your
friend Al is not with us any longer. One hell of a me-
chanic, but one problem, his mouth. He is an agitator." 7
Sanford had no recollection of this conversation and nei-
ther admitted nor denied it. He acknowledged making
similar statements to Reinholz. '8
17 The transcript at p. 250, I. 11, reports that this conversation took
place on August 31. That reference conflicts with subsequent transcript
references and my own memory of the testimony. Accordingly, that tran-
script reference is herewith corrected to read "August 3, 1951."
" Similar statements were attributed to Sanford by John Weiher, an
hourly paid service department employee who was not terminated on
July 31. He claimed that Sanford had addressed a service department
meeting around September and had stated that there had been agitators in
the shop, and that "Al was his biggest agitator. And he had gotten rid of
Al specifically." Other than to deny using the term "agitator" with re-
spect to Reinholz, Sanford did not deny making the statements attributed
to him by Weiher. Weiher's testimony concerning this meeting of service
department employees is not corroborated by any other witness notwith-
Timothy Roeske had been Respondent's body shop
manager; he was terminated, along with the other em-
ployees, on July 31. On Wednesday, August 5, he re-
turned to the dealership and spoke with Anthony Fras-
cona. According to Roeske, he and Frascona discussed
the arrangement with Quinlevan and the elimination of
the Frascona employees. Frascona told him that the ac-
tions had been taken to better himself. Frascona contin-
ued, "And in this way I could get rid of all the agita-
tors." Roeske asserted that there were agitators but they
were not doing anything wrong and pointed out that Re-
spondent had terminated its best mechanic, Reinholz.
Frascona allegedly acknowledged that Reinholz was a
very good mechanic and said, "But he was an agitator
also." There was discussion of other employees also
being agitators and Boerst's name was mentioned. Fras-
cona stated "that the deal with Quinlevan was an easy
way to get rid of all of them ... all of the agitators and
to make more business for him."'9
C. Rodney A. Boerst
Boerst was employed in Respondent's body shop from
July 1970 until his termination on July 31, 1981. He was
a "combination man," doing body repairs and repainting.
As previously noted, he was the most senior of the body
shop employees to be terminated.
McCulloch, the service manager since June 1980, testi-
fied that Boerst was a "very good employee for the time
he was under me." Boerst caused him no problems. He
was, McCulloch said, the best employee in the body
shop as of July. McCulloch did not claim that there
were not better body men in Milwaukee. Similarly,
Timothy Roeske, Respondent's body shop manager and
Boerst's direct supervisor from June 1980 until both
Roeska and Boerst were terminated, described Boerst's
work as "good." Both Frascona and Basso, however, de-
scribed Boerst's work as "hit or miss" or otherwise less
than fully satisfactory for a number of years. They also
believed that Boerst was diverting work from Respond-
ent's back shop to himself and had been taking equip-
ment, materials, and supplies from Respondent's facility
without payment or authorization. Boerst denied doing
standing that several, including Garr, Kinard, Borkowski, Kovacs, and
Schroeder, were called as witnesses by either the General Counsel or Re-
spondent. Borkowski testified that he never heard anyone in management
use the term "agitator." Kovacs, who recalled Sanford attending a serv-
ice meeting conducted by McCulloch, which meeting could have been
no more than 3 weeks after the discharges, never heard either Reinholz
or Boerst described as an agitator and never heard any reasons assigned
for their discharges. Schroeder could not recall Sanford attending any of
the service meetings and testified that he never heard Sanford or anyone
else call Reinholz or Boerst an agitator. Based on the foregoing, I find
this testimony of Weiher lacking in credibility.
i' Frascona admitted having a conversation with Roeske in the week
following the discharges wherein there was discussion about Reinholz.
He admitted telling Roeske that Reinholz was not happy nothwithatand-
ing his high earnings and that he had always had a negative attitude con-
cerning Respondent. He denied referring to Reinholz as an agitator, men-
tioning Boerst at all, or stating that the Quinlevan deal served as an
excuse to eliminate the agitators. In light of Frascona's admitted earlier
references to Reinholz and Boerst as agitators, his somewhat garrulous
nature, and in view of my overall impression of both witnesses, I find
that Roeske had the more accurate recollection of this conversation and
more credibly described it.
641
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any body work at home other than on automobiles
owned by himself, his relatives, and his friends and fur-
ther denied taking any materials or supplies without per-
mission. Notwithstanding the extended period of time
during which Respondent held these beliefs or suspicions
about Boerst, Boerst was never reprimanded or other-
wise disciplined. He had, however, been confronted with
Respondent's suspicions in 1979 and 1980. As with Rein-
holz, Respondent does not contend that the alleged or
perceived deficiencies were the reasons for termination;
rather, those beliefs or perceptions merely provided no
basis for exempting Boerst (and Reinholz) from the gen-
eral housecleaning. Unlike Reinholz, the General Coun-
sel does not contend that Boerst's work or productivity
was extraordinary.
Boerst testified that, throughout his 11 years in Re-
spondent's employ, he had brought complaints to man-
agement concerning working conditions. Thus, he testi-
fied that as early as 1970 he had begun pressing for cer-
tain modern body shop equipment, equipment which was
finally installed in 1978 or 1979. Similarly, from about
1971 through 1976, he repeatedly complained about the
number of exhaust fans in the body shop, expressing his
complaints directly to Frascona. Ultimately, a second fan
was installed. In or about 1978 he and Reinholz com-
plained to the service manager about the percentage of
the cost of uniform cleaning being borne by Respondent.
Subsequent to their complaint, Respondent began to bear
the entire cost. In or about April 1981, Respondent
changed health insurance carriers with a resultant de-
crease in benefits, an increase in paperwork, and no cor-
responding decrease in premiums. Boerst claimed to have
talked to several employees in the body shop and other
departments and to both Roeske and McCulloch; he
asked McCulloch to set up a meeting between Frascona
and the employees. McCulloch reported back to Boerst
that Frascona was unavailable for such a meeting. In
June, Roeske informed the body shop employees that
Respondent wanted their agreement to a reduction in
their percentage of the labor rate charged to the custom-
ers. Boerst, together with Nathaniel Smith and one other
employee, responded to Roeske that they would not
agree to such a reduction. Roeske told them that he
would talk to Frascona; the commission percentage was
not reduced. In that same month, according to Boerst,
Boerst complained that the uniforms, as they were
coming back from the cleaning service, were causing
him to break out in a rash. Boerst did not know whether
Frascona had any particular knowledge of his involve-
ment in pressing for the new body shop equipment or for
Respondent to bear full cost of the cleaning of uniforms.
Neither did he have any direct knowledge that McCul-
loch had talked to Frascona or Basso about his com-
plaints concerning the change in health insurance carri-
ers.
After describing Reinholz' role as the alleged spokes-
man in the service department, McCulloch testified that
Boerst was "more or less the spokesman for the body
shop." Boerst, he said, would ask him about new pay
plans affecting all the body shop employees; McCulloch
would secure explanations and report those explanations
back to Boerst. There is no evidence that, in doing so,
McCulloch would report that the source of the com-
plaint or question was Boerst. McCulloch described the
complaints in regard to the health insurance and the
labor rate as coming from Reinholz; he did not mention
any involvement by Boerst. Boerst, McCulloch said, nor-
mally took his complaints to the body shop manager,
Roeske, who would relate them to McCulloch. There
were not as many complaints coming from the body
shop as from the service department and he testified that
Boerst did not make as many complaints as did Reinholz.
The only complaints which he could specifically recall
as coming from Boerst related to the odor of the uni-
forms and possibly a complaint concerning the body
shop exhaust fans. In his investigatory affidavit, McCul-
loch had stated that he had not observed Boerst acting as
a spokesman as he had observed Reinholz act. No em-
ployees ever told McCulloch that Boerst (or Reinholz)
was speaking for them.
Roeske corroborated Boerst's testimony concerning
certain complaints. In or about June, Roeske observed
Boerst talking with Reinholz about the reduction of the
percentage of the labor rate received by the body shop
employees. Boerst complained to him about that reduc-
tion. Roeske told Boerst that there was nothing he
(Roeske) could do about it, that it was an office decision
and Boerst could speak to McCulloch if he desired to do
so. He subsequently observed Boerst enter McCulloch's
office. When Boerst approached Roeske, Roeske ob-
served Reinholz go into McCulloch's office. In this same
conversation, Boerst questioned Roeske about the elimi-
nation of profit sharing and Christmas bonuses. Roeske
presented Boerst's complaints to McCulloch. Roeske also
testified that Boerst had asked him to purchase certain
equipment for the body shop and that he had done so.
Boerst, he said, was the only one in the body shop who
brought complaints to him.
Frascona and Basso both denied that they were told of
Boerst's complaints concerning the health insurance or
wages. Frascona testified that Boerst had never com-
plained directly or indirectly to him and he was never
told by either the service or body shop manager that
Boerst was complaining. He denied that Boerst com-
plained to him about the air purification system and testi-
fied the requests for new body shop machinery were pre-
sented to him by the bookkeeper with no mention of
Boerst as the source of such requests.
Boerst testified that every shop manager under whom
he had worked had told him that Frascona had referred
to him as an agitator. Most recently, this had been re-
ported to him by Roeske about a month after Roeske
was hired (in June 1980). Similarly, at or about the same
time, McCulloch had called Boerst into the office to tell
him, "Mr. Frascona told him to fire me if I kept up
being an agitator and troublemaker in the body shop."
Notwithstanding Boerst's query, McCulloch did not
define the ways in which he was considered an agitator
or troublemaker. Both McCulloch and Roeske essentially
corroborated Boerst's testimony. Thus, McCulloch testi-
fied that on his first day of employment, in June 1980,
Frascona told him "about his agitators and his cliques."
Specifically named were Reinholz, Lattski, and Boerst
642
FRASCONA BUICK, INC.
who were referred to as prima donnas. Frascona said
they only did the work they wanted and not what they
were assigned by the service managers and service writ-
ers. McCulloch was directed to straighten them out and
let them know that he was running the shop, not they.
Frascona described Boerst to McCulloch as "a real bad
apple in the back in the body shop." McCulloch called
Boerst into his office and repeated the essence of Fras-
cona's admonitions: McCulloch was the boss and Boerst
would be following his orders.
Roeske similarly testified that, on several occasions,
Frascona told him to watch out for Boerst, that Boerst
was an agitator. 20
On July 30, Boerst and the body shop manager,
Roeske, were called into McCulloch's office and told
they were terminated. McCulloch, who voiced some
concern for his own job security, said that it had been a
dealer decision and he did not know why. He told
Boerst that he did not know whether there was any con-
nection between the Quinlevan deal and the terminations.
According to Frascona, Basso, and Sanford, and as
previously noted, the decision as to which Frascona em-
ployees would be terminated was made solely by Basso;
Frascona neither participated in that decision nor was he
informed of the details until after the fact. Basso had
made his decisions on the morning of July 30. He
claimed that he was making basically a "clean sweep" of
the service departments, retaining only a few (as dis-
cussed supra), and that is what he told various people at
the time he made his decision. Basso denied that Boerst's
conduct or attitude, or any of the misconduct in which
Respondent suspected him of engaging, played any role
in his decision. He acknowledged, however, that, having
decided to make a clean sweep, he saw no basis to ex-
clude Boerst from it because of his attitude and those
suspicions.
As previously noted, Frascona, on his return to Mil-
waukee, told Roeske that the Quinlevan deal had been
undertaken to improve Respondent's operation and "that
the deal with Quinlevan was an easy way to get rid of
all of ... the agitators." He named Boerst as well as
Reinholz among the agitators.
D. Ernest J. Garr
Garr was employed by Respondent since late 1979 as a
service writer, the individual who writes the repair tick-
ets when customers bring their vehicles in for service.
He was one of the individuals whom Basso had deter-
mined to terminate on July 31, 1981; as previously noted,
his job was saved at that time through the intercession of
McCulloch. For a period of about 7 weeks, following
McCulloch's voluntary termination, Garr was Respond-
ent's service manager. He was replaced in that capacity
by Brano Treskon and returned at that time to the serv-
ice writer classification.
McCulloch described Garr as an excellent employee
throughout McCulloch's tenure. There is some evidence
indicating that he resented being replaced as service
0o In light of the mutually corroborative and specific testimony given
by Boerst, McCulloch, and Roeske, I cannot credit Frascona's denials
that he had spoken to McCulloch or Roeske about his view of Reinholz
and Boerst as agitators.
manager by Treskon and after being so replaced "bad
mouthed" Treskon to customers and other employees.
Respondent does not contend that Oarr was terminated
because of his attitude toward Treskon or for any other
misconduct aside from that allegedly occurring on Feb-
ruary 8, 1982.
Prior to February 198221 Respondent's service writers
were paid a commission consisting of 6 percent of the
entire service orders which they wrote, including labor,
parts, and warranty work. They received a minimum of
$275 per week as a draw against that commission with
the balance of their earned commission being paid at the
end of each month. For a period of some months prior
to February, Garr and Richard Kinard, Respondent's
other service writer, had by agreement between them
pooled and split their commissions. Early in February,
Treskon called both Garr and Kinard into his office and
directed that there would be no further commission split-
ting. Garr and Kinard discussed the issue and returned to
Treskon. Both tried to convince Treskon to let them
continue splitting commissions in the interest of better
service. Treskon refused.
On the morning of February 8, Treskon called Garr
and Kinard into his office and told them that they would
be working under a new pay plan effective immediately.
The new plan, as Garr and Kinard understood it, re-
duced their guaranteed earnings, or draw against com-
mission, from $275 to $125 per week ($1,100 per month
as against $500 per month), reduced the commission on
labor charges from 6 to 5 percent, and eliminated the
commission on parts."2
Subsequent to this meeting with Treskon, Garr and
Kinard discussed their pay change with each other and
concluded that they would each be losing about $600 per
month. Their conversation was overheard by at least one
employee, Borkowski, who observed that they appeared
to be upset. Kinard also spoke to at least one other em-
ployee, Kovac, about the effect of the new pay plan on
him and Kinard heard Garr discussing the same subject
with another mechanic at the service desk. Garr and
Kinard spoke with Treskon a second time on that morn-
ing and continued to object to what they deemed to be a
$600-per-month reduction in their pay.
While Respondent had no written rules providing a
dress code for its employees, Treskon had made it clear
to Garr and Kinard that he expected them to wear neck-
ties while at work. Sometime during the morning of Feb-
ruary 8, Garr took off his tie, opened his shirt collar, and
wore his shirt with the collar outside his jacket (in the
fashion of a sports shirt). He removed his tie, he testified,
because he had gotten oil on it while examining a cus-
tomer's car. In his statement supporting his claim for un-
employment compensation, he had denied that he had re-
moved his necktie as a protest or as a sign of "unprofes-
I All dates hereinafter are 1982 unless otherwise specified.
" Trekon subsequently explained to Kinard, after Oarr's discharge,
that the new plan provided for a saaoy of $500 per month rather than a
draw against commission. I am satisfied that Treskon's less-than-complete
fluency in the English language, which is not his mother tongue, and the
abrupt manner in which he presented the new plan contributed to an
understandable confusion in the minds of both Oarr and Kinard and to
their resultant anger.
643
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sionalism." Rather, he had stated, he probably had gotten
oil on it. Kinard similarly removed his necktie at or
about lunchtime and was not wearing a tie when he re-
turned from lunch. Kinard took his tie off because he
was upset and indifferent to the possibility of discharge.
He surmised that Garr's action was similarly motivated.
Sometime during that morning, Treskon observed
Garr and Kinard with their ties off, laughing. He also
heard Garr state, in response to the ringing of the tele-
phone, "Let Brano take it. He didn't get a cut in pay." 2 3
Treskon did not respond directly to either their laughter,
their open collars, or this remark by Garr. However, he
asked Basso to walk through the service area to see how
the service writers were taking the new pay plan. Basso
did so. Basso testified that he observed Garr standing in
front of the service desk, leaning over it, "shaking his
ass." He said nothing to Garr; rather, he told Treskon
what he had observed. Garr denied leaning over the
counter and "shaking his ass." While it is clear from this
record that Garr was upset at this juncture, sufficiently
upset that his state of mind was noticed by several other
employees, the aforedescribed gesture is so ambiguous
and so much the possible result of a misinterpretation by
Basso of an otherwise innocent and unremembered (by
Garr) gesture that I cannot, and believe need not, resolve
this "momentous" dispute.
Treskon called Garr into his office. The content of this
conversation is critical. According to Treskon, Garr was
asked, "What was going on?" When Garr asked what
Treskon was referring to, Treskon stated, "Well you
have your tie off, you are very unprofessional out there
in front of customers, all of the technicians, parts people,
especially customers. This is why I was very upset."
Treskon asked Garr what he felt they should do about it
and Garr replied, "Well, I guess that is it. Am I laid off?
What are you going to do? . . . Are you laying me off
or firing me?" Treskon, feeling that he had been backed
into a corner by Garr, told Garr that he was laid off.
Testifying in this proceeding, Garr claimed that Tres-
kon had asked him, "What is going on? Why are you
talking to the mechanics?" Garr claimed that Treskon
accused him of trying to create problems with the me-
chanics, instigating things with them and with Kinard
and being an agitator. Treskon further allegedly accused
Garr of not doing a satisfactory job and told him that he
was being laid off. When he left Treskon's office, Garr
told Kinard and Borkowski that Treskon had accused
him of being an agitator and causing trouble among the
mechanics and had terminated him. However, when
Garr had testified in support of his unemployment com-
pensation claim, on March 31, he described the conversa-
tion which ended in his termination in terms substantially
similar to those used by Treskon. He claimed herein that
he did not mention Treskon's accusations that he was an
agitator or instigator either in that unemployment com-
pensation testimony or in his March 5 statement to the
unemployment compensation investigator because his at-
torney had advised him not to.
's Treskon's testimony in regard to this statement is corroborated by
Kinard and another employee, Schroeder. I credit their recollections
over Garr's claim that he merely said, "Let [the phone] ring. Maybe Mr.
Treskon will take it."
While the matter is not free from doubt, particularly in
light of his res gestae type statements to Kinard and Bor-
kowski, I must conclude that the conflict between Garr's
statements in support of his unemployment compensation
claim and his testimony herein renders his testimony
herein less credible that the candidly offered testimony
of Brano Treskon. See Hansen Chevrolet, 237 NLRB 584,
589 (1978). His explanation of that conflict, even if true,
demonstrates a willingness to "shade" sworn testimony
where doing so might be to his economic advantage. Ac-
cordingly, I find that Treskon's description of that final
meeting more credibly relects what actually took place
than does Garr's.
E. Requests for and About Affidavits
In preparation for the hearing in these consolidated
cases, Respondent's counsel questioned a number of em-
ployees. Among those questioned were Richard Kinard
and Chester Borkowski. Kinard was called into Fras-
cona's office for his first interview in or about late April.
Frascona, Treskon, and the attorney, Patrick W.
Schmidt, were all present. Frascona introduced Schmidt
as his attorney, stated that Schmidt wanted to ask him
some questions about Ernest Garr, and urged Kinard to
tell the truth. Frascona and Treskon then left the room
while the questioning was conducted.
A composite of Kinard's testimony on direct and
cross-examination establishes the following:2 4 In that
first meeting, I find, Schmidt informed Kinard that he
was Frascona's lawyer with respect to the Garr unfair
labor practice proceeding, and told Kinard that he did
not have to answer questions if he did not want to and
that there would be no reprisals if he declined to answer.
He then questioned Kinard concerning the events sur-
rounding Garr's discharge. Schmidt interviewed Kinard
for a second time in late April or early May. At this
time, it appears, Kinard mentioned that he had given an
affidavit to an agent of the National Labor Relations
Board. Schmidt told Kinard that he would like to have a
copy of it. According to Kinard, Schmidt said "that I
did not have to give it to him if I didn't want to. It was
left up to me, whatever I wanted to do. And I told him I
would have a copy mailed to him." Kinard subsequently
did so. Schmidt met with Kinard for a third time on
June 8. Again, Kinard was informed of the purpose of
their meeting, was assured that his participation was vol-
untary, and was further assured that he could stay or
leave without reprisal. In Kinard's affidavit, he had
stated that Garr, upon coming out of Treskon's office at
the time of his discharge, had stated that Treskon had
" On direct examination, Kinard did not recall Schmidt explaining the
purpose of his questions at their first meeting. On cross-examination he
recalled that Schmidt had said something about Oarr, possibly that he
was Respondent's lawyer in connection with Oarr's unfair labor practice
proceeding. He then acknowledged that he was told essentially the same
thing in his second conference with Schmidt as he had been told during
the first conference. Schmidt's statement prefacing their second meeting
included a statement of the purpose of their meeting as well as assurances
that he could answer or not free from reprisal. Kinard could not recall
whether, in their third meeting, Schmidt repeated the required muur-
ances. However, Daniel Gourash, Schmidt's law clerk, was present. He
testified that Schmidt so assured Kinard in that meeting.
644
FRASCONA BUICK, INC.
called him an agitator. In this meeting, Schmidt asked
Kinard about that statement. He asked whether "[Tres-
kon] actually 'called him an agitator' or said he was an
agitator."
In mid-May, Borkowski was summoned to the confer-
ence room where Schmidt, after giving him the neces-
sary assurances, began to question him concerning the
circumstances surrounding Garr's discharge. In the
course of Schmidt's questioning, Borkowski indicated
that he was not sure about a specific word that may have
been used by Garr in describing the Garr-Treskon ex-
change and did not want to commit himself. When asked
whether there was any way he could remember that
word, Borkowski stated that he could look at the affida-
vit he gave to an agent of the Board. Schmidt gave Bor-
kowski his business card with his home telephone
number written on it and asked Borkowski to call him at
home if he found the affidavit. Borkowski could not
recall Schmidt's exact question; he did not recall
Schmidt asking that he call to tell him the word as con-
tained in that affidavit. He thought that Schmidt wanted
to see the affidavit. 25 Borkowski neither called Schmidt
nor furnished him with a copy of his investigatory affida-
vit.
F. Analysis
1. The discharges of Reinholz and Boerst
The General Counsel does not question the legitimacy
of the arrangement between Respondent and Quinlevan
Buick which resulted in the replacement of the majority
of Respondent's back end employees by individuals for-
merly employed by Quinlevan. Rather, the General
Counsel contends that the Quinlevan deal provided a
pretext by which Respondent was able to terminate two
employees, who would not have otherwise been termi-
nated, because those employees had engaged in concert-
ed activities protected under Section 8(aXl) of the Act.
Respondent, citing those circuit court cases which place
a much more limited interpretation upon protected con-
certed activity than does the Board,2 a argues that Rein-
holz and Boerst engaged in no significant protected con-
certed activities, that if they did it was outside the
knowledge of the agent who made the decision to dis-
charge them, and that they would have been discharged
whether or not they had engaged in known protected
concerted activities.
It is not necessary to descend into the morass resulting
from the differing views of protected concerted activity
s" The foregoing is drawn from Borkowski's cross-examination testi-
mony. On direct-eximination, Borkowski testified that Schmidt had indi-
cated his awareness that Borkowski had given an affidavit and asked to
see it. In both his direct and croa-examination testimony, Borkowski
stated that Schmidt gave him a business card with the home telephone
number written thereon and had asked him to call that very evening in
the event that he found his affidavit. Such a request, I must conclude, is
probable only in connection with a request that the witness examine that
affidavit to determine how a particular statement was phrased. Had
Schmidt been asking to see the affidavit, it is unlikely that he would have
asked Borkowski to call him, particularly at home.
'I See, for example, Pelton Castel v. NLRB, 627 F.2d 23 (7th Cir.
1980), denying enforcement to Pelron Csteel, 246 NLRB 310 (1979), and
ARO. Inc. s. NLRB, 596 F.2d 713 (6th Cir. 1979), denying enforcement
to ARO, Inc., 227 NLRB 243 (1976).
of the Board and various courts. Under any test, on var-
ious occasions Reinholz and Boerst had engaged in such
activity. The complaints they presented, dealing with
wages, insurance, holidays, vacations, uniforms, and simi-
lar matters, were of common interest to, and would
benefit, all the employees.2 7 Moreover, the credible evi-
dence establishes that at least some of those complaints
resulted from group discussions and action. Reinholz'
testimony, that his discussion of complaints with the
service managers followed group discussions with other
service technicians, is unrefuted ns and is corroborated by
McCulloch's observations and characterization of Rein-
holz as the departmental "spokesman."2 9 Similarly,
while there is evidence that Boerst was not so much the
"spokesman" as was Reinholz, it is undisputed that his
complaints similarly followed discussions with other em-
ployees. In fact, on several occasions, his discussions
were with Reinholz. In one, as recently as June, their
discussion was observed by Roeske, the body shop man-
ager. In another, at or about the same time, Boerst and
two other employees spoke jointly with Roeske, reject-
ing a reduction in the percentage of the labor rate they
would receive. Complaints about wages and working
conditions which are the result of group action are pro-
tected concerted activity of the clearest kind. See, for ex-
ample, Pelton Casteel, supra, and ARO, supnr
It is not enough, in order to establish that discharges
were unlawful, merely to show that the employees were
engaged in protected concerted activities. As the Board
stated in Diagnostic Center Hospital Corp., 228 NLRB
1215, 1216 (1977):
In order to sustain an 8(aXI) discharge finding, it
is necessary to establish that at the time of the dis-
charge the employer had knowledge of the concert-
ed nature of the activity for which the employee
was discharged.
Clearly, the concerted nature of Reinholz' and Boerst's
protected activities was known to McCulloch and
Roeske. However, the decision as to which employees
would be terminated and which retained was made by
Basso. McCulloch's input (even if his testimony in this
regard were to be credited) was limited to a recommen-
dation, not followed, that Reinholz be retained; Roeske
had no input and was one of those who were terminated.
McCulloch and Roeske both testified as the General
Counsel's witnesses, both appeared to be at least sympa-
thetic toward the claims of the alleged discriminatees,
s" I reject Respondent's suggested inference that, inasmuch as Rein-
holz was reputed to seek preferential treatment for himself in the assign-
ment of work, his wage and benefit complaints were similarly intended
only for his own benefit. His rejection of McCulloch's offer to seek a
wage increase for himself alone refutes such a contention.
as The testimony of Borkowski, a short-time employee, to the effect
that he did not observe such discussions does not establish that they did
not occur.
"' McCulloch did not, contrary to Respondent's assertion on brief, tes-
tify that he used the term "spokesman" because he knew that it was
"necessary for Reinholz to prevail in this proceeding." When asked, on
cross-examination, whether that was his reason for so describing Rein-
holz, he answered, in a clearly facetious manner, "If my eighth grade
education got it that far, yes." The plain import of such testimony is to
deny, not admit.
645
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and both denied having told Basso (or Frascona) that
complaints about wages and working conditions originat-
ed with Reinholz or Boerst. In such circumstances, it
would be inappropriate to impute the knowledge of
McCulloch and Roeske to Basso. See Kimball Tire Co.,
240 NLRB 343, 344 (1979) (Member Jenkins dissenting
on other grounds), where the Board stated:
It is true that information acquired by a supervisor,
with respect to the specific employees involved in
the union campaign, is ordinarily imputable to the
employer. This is a natural effect of the loyalty
which a supervisor, by virtue of his position, feels
toward his superiors. Nevertheless, the inference
cannot be drawn in the instant case, as Walter Akin
[the supervisor and son of one of the alleged discri-
minatees] did not initiate the action [i.e., higher
management's interrogation of him] and his credited
testimony indicates that he did not communicate his
knowledge of union activity to higher management.
The General Counsel argues, essentially, that Fras-
cona's repeated references to Reinholz and Boerst as agi-
tators establish both the necessary knowledge oc their
protected concerted activities and Respondent's antipa-
thy toward employees who would so engage. I agree
that Frascona's use of that term warrants grave suspi-
cion: "agitator," when used in a labor relations setting,
normally carries such connotations. Here, while Fras-
cona admitted that his use of the word referred, in part,
to the employees' griping, it is clear that it also carried
other meanings of importance to him. Thus, he testified
that it referred to the employees' unhappiness and, in
particular, to the ability of certain employees to control
their own work assignments, to force their managers to
cater to them. His testimony is supported by other
record evidence. Specifically, McCulloch testified that,
when, on his first day of employment, Frascona told him
of "his agitators and cliques," he also referred to them as
"prima donnas" and defined his use of the word agitator
to mean that they picked and chose their jobs and con-
trolled, rather than were controlled by, their managers.
There were repeated references to Frascona's belief that
these employees were considered to be agitators because
they were the "tail wagging the dog"; i.e., the employees
directing, rather than taking direction from, their super-
visors. I note, too, that Frascona had been referring to
some of his employees, particularly Reinholz and Boerst,
as agitators for many years without ever taking action
against them. And the record does not contain any evi-
dence that they were referred to as agitators during the
year preceding their terminations. Basso testified that he
had not heard Frascona so describe them for a couple of
years before he made his selections. These factors all
tend to negate inferences of knowledge and animus.
Thus, I must conclude that the General Counsel has
failed to prove, by a preponderance of the credible evi-
dence, a critical element in establishing the alleged viola-
tions, knowledge.
However, even if I were to impute knowledge from
McCulloch and Roeske to Basso, or infer it from Fras-
cona's references to Reinholz and Boerst as agitators, I
would not find that they had been discharged in viola-
tion of Section 8(aX1). In light of the unquestioned valid-
ity of Respondent's overall action in replacing its back
end employees with those from Quinlevan, this case pre-
sents, at best, a question of dual motivation. The mode of
analysis for such cases is as set forth in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir. 1981).s °
Pursuant to the Wright Line mode of analysis:
... it is incumbent on the General Counsel to
adduce evidence supporting his contention that an
employee was unlawfully discharged. Should a
prima facie case of unlawful discharge be shown,
the burden of persuasion shifts to the respondent to
establish a lawful reason for the discharge. [Hillside
Bus Corp., 262 NLRB 1254 (1982) (Member Jenkins
dissenting on other grounds.]
When the burden of persuasion shifts, the respondent
may rebut the "prima facie showing with evidence indi-
cating that the same action would have been taken even
in the absence of the employee's protected activities."
The General Counsel must then carry his ultimate
burden of establishing that the discharge was, in fact, un-
lawfully motivated. Sioux Products, supra at 1257; Wright
Line, supra.
Viewing the General Counsel's case in isolation, it is at
least arguable, in light of the protected concerted activi-
ties and the references to the alleged discriminatees as
agitators, that a prima facie case has been established.
Turning therefore to Respondent's defense, I must con-
clude that its burden of demonstrating "that the same
action would have taken place even in the absence of the
protected conduct" has also been met. Respondent's busi-
ness was in trouble; it had been for some time. Its prob-
lems stemmed, Respondent believed with some justifica-
tion, from the poor reputation suffered by its back end.
No specific employees were pinpointed as being respon-
sible for the failings of the back end. Respondent was
presented with an opportunity to replace its back end
with that of another dealership which enjoyed an excel-
lent reputation for service and it grabbed that opportuni-
ty. Basso, the general manager who made all the subject
decisions, determined, in his own words, to "make a
clean sweep," to "clean house from front to back."1'
Basso did not terminate all of Respondent's back end em-
ployees but his justifications for keeping those who were
retained were neither so unreasonable or implausible as
to be unworthy of credence.'s No one was retained on
so The Seventh Circuit has expressed its approval of the Wright Line
standard. See Sioux Products v. NLRB, 684 F.2d 1251 (1982). See also
Peavey Co. v. NLRB, 648 F.2d 460 (1981). The Wright Line analysis is
applicable to 8(aXl) discharge allegations. See Castle Instant
Maintenance/Maid, 256 NLRB 130 (1981).
s' Basso's use of these expressions in conversations with various indi-
viduals, immediately before and after the actions were taken as well as in
this hearing, essentially negates the General Counsel's contention that the
statements of position submitted by Respondent's counsel during the in-
vestigation, which refer to Respondent as selecting the most qualified em-
ployees for retention, evidence shifting reasons for the selections. Basso,
who made the decisions, has maintained a consistent position throughout.
3' The General Counsel, seeking to overcome Respondent's defense
without referring to Wright Line, argues that Respondent retained "loyal"
employee Oarr and two employees who "stayed to themselves" and
Continued
646
FRASCONA BUICK, INC.
the basis of his productivity or exceptional skills and Re-
spondent was able to acquire new employees with skills
at least equal to those possessed by Reinholz and Boerst.
Therefore, while it would not have been surprising for
Respondent to have kept someone of Reinholz' skill and
high productivity, it cannot be said that Reinholz was
treated disparately from any of the other service techni-
cians. Even less of an argument can be made for Boerst,
who may have been the best body man Respondent had
at that time, but for whom no claim can be made of ex-
ceptional skill warranting an exception from the general
"housecleaning." Finally, I note that there is no proba-
tive evidence indicating that Respondent ever considered
retaining Reinholz and Boerst when it eliminated the
nine others or that it changed its mind and determined to
include them because of their protected concerted activi-
ties. s3
Accordingly, for all of the reasons set forth above, I
conclude that the General Counsel has failed to sustain
his burden of proving that Respondent discharged Rein-
holz and Boerst for having engaged in protected concert-
ed activities; I shall recommend that those allegations be
dismissed.
2. The discharge of Garr
Applying the same Wright Line mode of analysis to the
discharge of Ernest Garr, I must similarly conclude that
the General Counsel has failed to sustain his burden of
proof on this allegation.34 Garr was, I am satisfied, en-
gaged in protected concerted activities when he and
Kinard discussed Treskon's prohibition of commission
splitting and when they sought to change Treskon's mind
on that subject. They were similarly engaged when they
discussed the new pay plan among themselves and with
other employees and when they complained to Treskon
about the effect of that plan on their earnings.3s
"caused no problems," Smith and Borkowski. Retention of some employ-
ees for these as well as other expressed reasons (including Smith's ex-
ceedingly long tenure and Borkowski's recent hire after having been in-
duced to leave other employment) does not establish that Reinholz and
Boerst were selected because their protected concerted activities "caused
·.. problems." I note that Respondent's reference to oGrr's loyalty had
nothing to do with protected concerted activity. Rather, it referred to his
continued service to customers even after he was given his final pay.
Is In so concluding, I have given little weight to Respondent's descrip-
tion of their alleged deficiencies, particularly the claim that they worked
out of their homes and the claimed suspicion that Boerst took company
supplies and materials for his own use. Respondent had too long tolerated
their alleged deficiencies to place much weight on them at this time. Nei-
ther have I given much weight to the testimony of Roeske and Jackson
concerning post-termination references to Reinholz and Boerst as agita-
tor by Frascona and Sanford. Frascona, as noted, was not involved in
the selection process; moreover, he used the term agitator loosely and
with varied meanings. Sanford, I believe, just liked to talk and his claim
to Jackson that he fired Reinholz is totally without substance. His state-
ment, while based on things he probably heard from Frascona, is insuffi-
cient to establish Basso's motivation as unlawful.
84 The result would be the same whether the facts were viewed from a
"pretextual discharge" or "dual motivation" perspective.
$' To the extent that conversations between employees must "be talk
looking toward group action" in order to be protected, the concerted
urgings of Garr and Kinard that Treskon reverse himself on both these
matters, following their discussions, establishes the requisite group action.
Mushroom Transportation Ca v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964);
Charles H. McCauley Associates, 248 NLRB 346 (1980), enfd. in relevant
part 657 F.2d 685 (5th Cir. 1981). Moreover, even assuming that Garr
and Kinard were in error concerning the effect of the new pay plan upon
Notwithstanding that I have found Garr to have been
engaged in protected concerted activity on and before
the morning of February 8, I cannot find that he was dis-
charged because of that activity or that he would not
have been discharged even in the absence of such activi-
ty. The testimony which I am compelled to credit con-
cerning the final exchange between Garr and Treskon
contains no reference to Garr's protected concerted ac-
tivities. Treskon's concern, it appears, was solely with
what he perceived to be Garr's unprofessional behav-
ior.s3 It further appears that Garr's attitude in that meet-
ing forced Treskon's hand and brought about the termi-
nation. Discharge under such circumstances, while per-
haps harsh, is not so patently unreasonable as to require
a conclusion of unlawful motivation.
According, I shall recommend that this allegation be
dismissed.
3. The requests for affidavits
The credited evidence establishes that attorney
Schmidt, in the course of pretrial preparation for this liti-
gation, gave each of the questioned employees the assur-
ances required by the Board as set forth in Johnnie's
Poultry Ca, 146 NLRB 770 (1964).s 7 However, in ques-
tioning those employees, he asked at least one for a copy
of the affidavit given to an NLRB investigator and also
asked two employees about the contents of such affida-
vits. Such conduct, the Board has consistently held, vio-
lates Section 8(aX1). Thus, in Johnnie's Poultry, at 775-
776, it was stated:
In defining the area of permissible inquiry, the
Board has generally found coercive, and outside the
ambit of privilege, interrogation concerning state-
ments or affidavits given to a Board agent. For such
questions have a pronounced inhibitory effect upon
the exercise by employees of their Section 7 rights,
which includes protection in seeking vindication of
those rights free from interference, restraint, and co-
ercion by their employer. Moreover, interrogation
concerning employee activities directed toward en-
forcement of Section 7 rights also interferes with
the Board's processes in carrying out the statutory
mandate to protect such rights. We note, in this
them, their joint discussions and protest remain protected. As the Board
has often stated, "it is well settled that the merit of a complaint or griev-
ance is irrelevant to the determination of whether an employee's conduct
is protected under the Act, so long as the complaint was not made in bad
faith." Wagner-Smith Co., 262 NLRB 999, fn. 2 (1982), and cases cited
therein. Treskon's manner and timing in presenting substantive changes in
pay plans to the employees, making adverse reactions predictable, negates
any question of bad faith.
"6 Treskon's question, "What was going on?" could be considered a
reference to OGrr's conversations with Kinard and other employees.
Equally reasonable, perhaps even more likely, is that it referred to the
attitude he openly displayed or appeared to display by his actions and
comments.
"7 Pursuant to that rule, consistently adhered to since its promulgation,
an employer's pretrial questioning of an employee must be for a valid
purpose, that purpose must be communicated to the employee, the em-
ployee must participate voluntarily, and that employee must be assured
that he may answer or not free from any reprisals. Additionally, the ques-
tioning must not exceed the necessities of the situation and must occur in
a context free of employer hostility to the exercise of statutory rights.
647
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
connection, that under the safeguards attending a
hearing on unfair labor practices, counsel for Re-
spondent parties are entitled to the availability,
upon request, of the affidavits of General Counsel
witnesses for use in cross-examining those witnesses.
It is evident from the foregoing that by its inquir-
ies relating to statements given the Board agent, the
Respondent interfered with the statutory rights of
its employees in violation of Section 8(a)(1) of the
Act.
This principle applies to requests for, as well as questions
about, NLRB affidavits. Ingram Farms, 258 NLRB 1051
(1981); Anserphone, Inc, 236 NLRB 931 (1978). More-
over, the request for such affidavits is violative even if
preceded by assurances that production is completely
voluntary. GEX of Colorado, 250 NLRB 593 (1980).
In arguing against application of the Board's per se rule
affecting requests for affidavits, Respondent cites Robert-
shaw Controls Co. v. NLRB, 483 F.2d 762 (4th Cir. 1973)
(denying enforcement in relevant part to the Board's
Order, 196 NLRB 449 (1972)), and NLRB v. Martin A.
Gleason, Inc., 534 F.2d 466 (2d Cir. 1976) (denying en-
forcement in relevant part to the Board's Order, 215
NLRB 340 (1974)). In both of those cases, the courts
held otherwise noncoercive requests for employees to
voluntarily furnish copies of their affidavits to their em-
ployer not to violate Section 8(aX1).
As Respondent expressly recognized, the Administra-
tive Law Judge is obligated to follow Board law until
changed or until reversed by the Supreme Court. Charles
H. McCauley Associates, supra at 349. Board law, as ex-
pressed in Johnnie's Poultry, Ingram Farms, GEX, and
Anserphone, is clear (and there appears to be no contrary
authority in either the Seventh or the D.C. Circuits,
where review or enforcement of this proceeding might
be sought). Accordingly, I find that by requesting copies
of affidavits employees had given to the NLRB, and by
questioning employees concerning the contents of those
affidavits, Respondent has violated Section 8(a)(l) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. By requesting that employees furnish its counsel
with copies of affidavits given to agents of the National
Labor Relations Board, and by questioning employees
concerning the contents of those affidavits, Respondent
has violated Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
3. Respondent has not engaged in any unfair labor
practices other than those described above.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDERS s
The Respondent, Frascona Buick, Inc., Milwaukee,
Wisconsin, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Asking employees for copies of affidavits given to
agents of the National Labor Relations Board or ques-
tioning employees about the contents of such affidavits.
(b) In any like or related manner interfering with em-
ployees in the exercise of rights under the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Post at its Milwaukee, Wisconsin, facility copies of
the attached notice marked "Appendix." s 9 Copies of said
notice, on forms provided by the Regional Director for
Region 30, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the consolidated complaints
be dismissed insofar as they allege violations of the Act
not specifically found herein.
s' 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
findings, 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
39 In the event that 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 National Labor Relations Board" shall read "Posted Punrsu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT ask our employees for copies of
affidavits given to NLRB agents or question them
concerning the contents of such affidavits.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
FRASCONA BUICK, INC.
648