Gentile Pontiac

National Labor Relations Board - Board Decisions

Feb 24, 1982

260 N.L.R.B. 429 (N.L.R.B. 1982)

GENTILE PONTIAC
Gentile Pontiac and Amalgamated Local Union 355.
Case 4-CA-11510
February 24, 1982
DECISION AND ORDER
BY' MEIMBEIRS FANNING, JINKINS, AND
ZIMMIERMAN
On September 29, 1981, Administrative Law
Judge Arline Pacht issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a supporting
brief to the Administrative Law Judge's Decision.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her 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, Gentile Ponti-
ac, Vineland, New Jersey, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order, except that the at-
' Respondent 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 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 her find-
ings.
In its exceptions to the Administrative Law Judge's Decision. Re-
spondent contends that the Administrative Laws Judge erroneously found
that Supervisor Tasnaddy admitted that employee Dayton was being dis-
charged for his union activity. Our examination of the record reveals no
direct admission by Tasnaddy. Apparently, the Administrative Law
Judge was referring to Dayton's credited testimony that Tasnaddy told
him he was being fired because he failed to heed Respondent's warning
to stop talking about the Union We so conclude because the Administra-
tive Law Judge's statement concerning the admission is followed by fn. 5
in which she specifically credits the testimony of Dayton as to the events
surrounding his discharge Accordingly,. in affirming the Administrative
Law Judge we rely upon the credited testimony of Dayton and not on
any direct admission by Tasnaddy
2 Member Fanning would make the bargaining order prospective only.
See his partial concurrence in Beasley Energy. Inc.. d/b/a Peaker Run
Coal Company. Ohio Division #1, 228 NL RB 93 (1977).
In accordance with his dissent in Olympic Medical Corporaolon, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein
The Administrative Law Judge inadvertently failed to cite Isis Plumb-
ing & Heating Co. 118 NLRB 716 (1962)., for the interest rationale.
260 NLRB No. 56
tached notice is substituted for that of the Adminis-
trative Law Judge.
APPENDIX
Norlci: To EMPI.OYI.- .S
POSITED BY ORDER OI: THE
NATIONAIl LABOR RilATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were represent-
ed by their attorneys and were given the opportu-
nity to present evidence in support of their respec-
tive positions, it has been found that we violated
the National Labor Relations Act in certain ways
and we have been ordered to post this notice and
to carry out its terms.
The National Labor Relations Act, as amend-
ed, gives all employees the following rights:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choice
To engage in activities together for the
purpose of collective bargaining or to act to-
gether in order to seek improvement in your
wages, hours, working conditions, and other
terms and conditions of employment
To refrain from any and all of these activ-
ities.
Accordingly, we give you these assurances:
WE WIL . NOT create the impression of sur-
veillance by telling employees that we heard
rumors that they were forming a labor organi-
zation and had signed cards, and that we knew
the identity of the union organizer.
WE WILL NOT induce employees to abandon
a labor organization of their choosing, threaten
employees with unspecified reprisals because
of their activities on behalf of a labor organiza-
tion, or interrogate employees concerning their
union activities.
WE WILL NOT threaten employees with de-
motion should a union be selected as their col-
lective-bargaining representative, nor dis-
charge or otherwise discriminate against em-
ployees with regard to their hire or tenure of
employment or any term or condition of em-
ployment for engaging in activities on behalf
of a labor organization.
WE WILI NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section
7 of the Act.
429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WI Wll.L, on request, bargain collectively
with Amalgamated Local Union 355 as the ex-
clusive representative of our employees in the
bargaining unit described below and, if an un-
derstanding is reached, WE WILI embody such
understanding in a signed agreement. The ap-
propriate unit is:
All mechanics, mechanic trainees and lot
boys employed by Gentile Pontiac at its
Vineland, New Jersey facility but excluding
managerial employees and guards and super-
visors as defined in the Act.
WE WILl reinstate Charles Dayton to his
former or a substantially equivalent position of
employment without prejudice to this seniority
or any other rights or privileges, and will
make him whole for any losses suffered as a
result of our discrimination against him, plus
interest.
GENTILE PONTIAC
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge: Upon
charges filed against Gentile Pontiac (hereinafter called
the Respondent), by Amalgamated Local Union 355
(hereinafter called the Union), on November 28, 1981, a
complaint issued alleging that the Respondent violated
Section 8(a)(l) of the National Labor Relations Act
(hereinafter called the Act), by interrogating employees
about their union activities, threatening employees with
demotion and other reprisals, creating the impression of
surveillance, and inducing employees to abandon the
Union by promoting a different labor organization. The
complaint further alleges that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging Charles
Dayton and that, by its unlawful conduct, prevented the
holding of a fair election. The Respondent filed a timely
answer denying the allegations in the complaint.
Thereafter, on August 10 and 11, 1981, a hearing was
held before me in Philadelphia, Pennsylvania, at which
time all parties were given an opportunity to examine
and cross-examine witnesses.
Based on the entire record in this case, including the
testimony of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a New Jersey corporation, operates a
retail automobile dealership in Vineland, New Jersey.
During the past year, Respondent purchased and re-
ceived at its Vineland facility products valued in excess
of $50,000 directly from points located outside New
Jersey. During this same period, Respondent received
gross revenues in excess of $500,000. Upon the foregoing
facts, I find, as admitted in the answer, that Respondent
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THIE lABOR ORGANIZATION INVOI.VED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. Al IiG(i l) UNFAIR l ABOR PRACTICES
As part of its automobile dealership business, Respond-
ent maintains a service department which is staffed by
several mechanics, a lot boy, a parts counterman, and a
service manager.
In mid-July, Respondent's then sole mechanic, Scott
Wheeler, took a medical leave of absence. Shortly there-
after, Respondent's service manager, William Tasnaddy,
contacted Charles Dayton, an experienced mechanic he
had known for several years, and urged him to accept a
job. Dayton, who had been working at a Texaco station
as a class A mechanic for the past 3 years, initially was
reluctant to take the job. Tasnaddy assured Dayton that,
although Wheeler would be returning at some unspeci-
fied date, the job was permanent since there was more
than enough work to keep several mechanics occupied,
and offered him 57 cents an hour more than he currently
was receiving. Approximately a week later, Tasnaddy
called Dayton again and urged him to accept the job im-
mediately. After Dayton filled out an employment appli-
cation, Respondent's president and owner, Ronald Gen-
tile, checked his reference with the Texaco station. Al-
though he learned that Dayton was frequently late to
work, Tasnaddy nevertheless made Dayton a firm job
offer and pressed him to start working as soon as possi-
ble. A few days later, toward the end of July, Dayton
began working for Respondent as a class A mechanic.
A. The Employees Organize
On September 24, Leonard Sofield, the Union's busi-
ness agent, approached Dayton outside Respondent's fa-
cility, asked if he were interested in joining the Local,
and suggested that Dayton contact him if he wished to
pursue the matter.
Acting on this overture, Dayton met with Sofield at
noon on September 26. After discussing the advantages
of union membership and the purpose of the authoriza-
tion card, Dayton signed a card and took several blank
cards with him.i On returning to work, Dayton asked
Robert Cassabone, a fellow mechanic Respondent hired
in late August because of an increased workload, if he
were interested in joining the Union. Cassabone signed
an authorization card and returned it to Dayton who
subsequently delivered it to Sofield.
On October 9, Sofield met with Dayton, Cassabone,
and a third employee, Nick Pennington, who also signed
an authorization card at this time. Pennington was hired
in late September 1980, as a lot or detail person with re-
sponsibility for minor mechanical adjustments, washing,
I The cards stated, inter alia: "I hereby apply for membership in Amal-
gamated Local Union 355, and authorize and designate this union to rep-
resent me for collective bargaining with my employer."
430
GENTII.E PONTIAC
waxing, and otherwise preparing the cars prior to deliv-
ery.
These three employees worked under similar condi-
tions of employment: they were hourly paid, worked a
basic 40-hour week, punched a timeclock, and wore
identical uniforms. They reported directly to Tasnaddy
who gave them their daily assignments, distributed over-
time, and reviewed their performance. If they were to be
late or absent, they contacted Tasnaddy in advance.
Dayton and Cassabone worked entirely in the service
area of the facility, while Pennington's duties required
him to shift between the lot and the service area. In con-
trast to these three men, the parts manager and service
manager were salaried and received a percentage of the
gross profits from sales and repairs, respectively, had use
of company cars, wore white shirts which bore labels
identifying them by title, and worked in separate areas
within the service area. Tasnaddy was primarily occu-
pied with taking customers' repair orders, diagnosing
their problems, and handling their complaints but spent
approximately 15 or 20 minutes a day reviewing the me-
chanics' work.2 The parts manager distributed materials
to the workers on request and also sold parts to the
public, with authority to set and discount prices. Occa-
sionally, he substituted for Tasnaddy during his absence.
C. The Employer's Response to Unionization
The parties offered somewhat divergent accounts of
Respondent's reaction to their organizational activity.
For example, Dayton testified that on October 3 Tas-
naddy summoned him and Cassabone to his office at the
end of the workday and told them he heard a rumor that
they had joined a union. The mechanics admitted only
that they had been approached. Tasnaddy then stated
that a union would be bad for them and that they should
forget about it for a union would put an end to Respond-
ent's past practices. He added that if they were interested
in a union he could introduce them to a union repre-
sentative whom he knew and produced the representa-
tive's business card.
Tasnaddy contended that his purpose in meeting with
the mechanics was to reprove them for their tardiness
and the quality of their work. He admitted telling the
mechanics that he heard they were trying to start a
union and offering them a business card from a union ac-
quaintance, but denied making the antiunion comments
attributed to him.
Dayton further related that on October 9 or 10, when
Tasnaddy again adverted to rumors of a union, he simply
shrugged. On or about the same date, Gentile ap-
proached him and said he hoped Dayton had put aside
talk about a union. He added that a union shop would
not be good for him and it would be in his best interests
to forget about it. Gentile, on the other hand, recalled
that Dayton raised the topic of a union and said he did
not care which union represented him. He, too, denied
making any other negative comments about unionization.
Dayton stated that, immediately after his encounter with
Gentile, Tasnaddy approached him, reasserted that the
2 Under the circumstances outlined here, Tasnaddq is. without doubt, a
supervisor as defined in Sec 2(11) of the Act
Union would not be to the employees' advantage, that
past practices would cease, and added that unions make
promises which they do not keep.
Dayton further testified that on October 13 Tasnaddy
contended that a reliable source informed him the em-
ployees had signed union authorization cards and ac-
cused Dayton of being the principal organizer. Dayton,
and Pennington, who had joined them, admitted having
signed cards in response to Tasnaddy's inquiry, but
Dayton denied knowing whether Cassabone also signed
a card. Tasnaddy warned Dayton that, if the Union suc-
ceeded, he would no longer be designated a class A me-
chanic. Tasnaddy did not at all dispute Dayton's recol-
lection of this exchange except to say that, if the Union
prevailed, everyone probably would be reclassified.
On the day after this encounter, Dayton was dis-
charged. As Dayton described it, Tasnaddy told him at
the end of the workday on October 14 that he had been
warned to stop talking about the Union and, since he had
chosen not to do so, Gentile ordered him fired. When
Dayton asked if he could finish the workweek until
payday on Friday, Tasnaddy conferred with Gentile and
then informed Dayton that he had to leave immediately.
He also told Dayton he could attribute the dismissal to a
lack of work in order to be eligible for unemployment
compensation. Tasnaddy offered a different version, testi-
fying simply that he advised Dayton that Wheeler was
returning and there was insufficient work for three me-
chanics.
Both Gentile and Tasnaddy explained that with
Wheeler due to return on October 21, and with no need
for three mechanics, Dayton was selected for discharge
because his skill, productivity, and attendance record
made him a less desirable employee than Cassabone. Spe-
cifically, Tasnaddy maintained that Dayton was incapa-
ble of performing electrical repairs, or working on diesel
engines and automatic transmissions. Moreover, he was
responsible for several "comebacks," that is, work re-
turned by dissatisfied customers. Respondent also intro-
duced documents which showed that Dayton worked
fewer flat rate hoursa than did Cassabone and was late
on 15 occasions in September whereas Cassabone
clocked in late on 6 days in the same month. A closer
inspection of the mechanics' tardiness records reveals,
however, that, for the most part, they were no more
than 2 or 3 minutes late.
Dayton took strong exception to Respondent's criti-
cism, pointing out that he was trained and certified to
repair automatic transmissions but that Respondent had
never assigned him to such work. He further asserted he
had only one comeback and that an examination of Re-
spondent's repair orders would bear him out. He ad-
mitted to arriving late to work occasionally, but ex-
plained that he had warned Tasnaddy before taking the
job that he served as a volunteer fireman and that his
wife contacted Tasnaddy on the few occasions when his
firefighting duties prevented him from arriving on time.
' Flat rates apply to scheduled fees charged for accomplishing various
types of auto repairs s ithin fixed periods of time
431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Events Subsequent to the Discharge
On the day after Dayton's discharge, Pennington
spoke to Gentile about his fear of losing his job. Accord-
ing to Pennington, Gentile replied that anyone who
signed a card would be fired. Gentile claimed, however,
that he assured Pennington that there was no reason to
be apprehensive so long as he did his work. That same
day, October 15, Sofield attempted to meet with Gentile
to seek Dayton's reinstatement and request recognition.
After waiting for Gentile for several hours, Sofield filed
the instant charges with the Board.
Some months after Dayton's discharge, the other two
employees who had signed cards left Respondent's
employ: Pennington January 1981, and Cassabone in
March. In April, Respondent hired two new mechanics
in addition to Wheeler. 4
IV. I)ISCUSSIONS ANI) CONCLUSIONS
A. Dayton's Dismissal Was Unlawful
The General Counsel contends, and Respondent
denies, that Dayton was discharged because of his role in
enlisting the support of his coworkers for the Union. In
proving his case, the General Counsel is required to es-
tablish that Respondent's asserted reasons for Dayton's
termination were pretextual, designed to obscure its real
discriminatory motivation. I find abundant evidence to
support the General Counsel's position.
Respondents rarely reveal their states of mind by
openly declaring that a discharge was for discriminatory
reasons. This is the rare case, however, for here, I find
that Tasnaddy did admit to Dayton that he was being
fired for his union activity.5 Even were I to discount
Tasnaddy's confession, there is more than ample proof in
the record establishing the illegality of Dayton's dis-
charge.
By Tasnaddy's admission, it is uncontroverted that Re-
spondent was aware of Dayton's leadership role in orga-
nizing the service employees. There also can be little
doubt, based on the findings of the 8(a)(l) violations
above, that Respondent was opposed to such activity. Of
course, an employer is free to dislike unions and to ex-
press such views to employees without violating the Act.
But Tasnaddy's references to an abolition of past prac-
tices and to a demotion for Dayton were not mere ex-
pressions of opinion; they were unlawful threats.
The abruptness and timing of the discharge provides
additional grounds to view Respondent's stated motiva-
tion skeptically. See Hurst Performance, Inc., 242 NLRB
121 (1979). Respondent insisted that Dayton was termi-
nated to make way for a mechanic returning from dis-
4 The record is ambiguous with regard to the dates on which Penning-
ton and Cassabone ceased working for Respondent. Pennington testified
he left in January 1981 while Cassabone remained. However, Gentile
stated that Cassabone left in January and Pennington in March I am in-
clined to rely on Pennington's recollection since this would be a more
important date for him to recall than it would be for Gentile.
I By his demeanor and the consistency of his testimony, Daytoin im-
pressed me as a forthright and credible witness, Tasnaddy appeared it) be
a man who, outside the courtroom, would say precisely what was on his
mind. Indeed, in the courtroom, he confirmed having made numerous
damaging admissions in this case, apparently unaware of the possible con-
sequences under the Act.
ability leave. Gentile knew on October 7 that Wheeler
would return on October 21, yet offered no explanation
for Dayton's summary termination without notice on Oc-
tober 14, a week before Wheeler's scheduled return. Nor
was any reason given as to why Dayton could not com-
plete the workweek.
The Respondent maintained that Dayton was selected
for discharge because there was insufficient work for
three mechanics, and, since he was less productive, less
skilled, and had a worse attendance record than Cassa-
bone, he was the more dispensable employee. The flaws
in Respondent's asserted reasons offer further proof that
these reasons were conveniently invoked to conceal its
antiunion purpose.
It strains credulity to accept Respondent's contention
that Dayton was incompetent in certain mechanical
areas. He commenced working as a mechanic in 1956
and performed at the grade A level for 3 years prior to
taking the job offered by Respondent. Gentile checked
Dayton's reference with his previous employer and re-
ported no negative comments about his job performance
there. Moreover, Tasnaddy never saw fit to communi-
cate to Dayton any dissatisfaction with his performance.
Equally unconvincing was Respondent's attempt to char-
acterize Dayton as less productive than Cassabone based
on the number of flat-rate hours each worked, since the
total number of such hours accrued by an employee de-
pended on the type of work to which he was assigned by
Gentile or Tasnaddy. If the number of flat-rate hours
earned by Dayton was a matter of genuine concern, Re-
spondent had it within its control to shift him to other
work.
Respondent asserted during the course of the hearing
that it could produce business records which would
show that there was insufficient work to occupy three
mechanics, but failed to do so. Accordingly, an inference
is warranted that such records would not substantiate
Respondent's claim. See Pacific Coast International Meat
Co., 248 NLRB 1376, 1382 (1980); Fred Branch d/b/a B
& L Plumbing, 243 NLRB 1016, 1022 (1979).
The record establishes that Dayton was tardy more
frequently than was Cassabone. However, the attendance
chart introduced by Respondent reveals that very few
instances of late arrival exceeded 2 or 3 minutes. The
Respondent never disciplined Dayton for his tardiness or
warned him that continued infractions might be grounds
for discharge. Given the de minimis nature of the times
involved and Respondent's failure to treat this as a prob-
lem prior to Dayton's involvement in union activity, it is
reasonable to infer that Respondent's reason for Re-
spondent's harsh and sudden action was pretextual.
In sum, Dayton was not discharged for the reasons
Respondent asserted. Rather, Respondent fired him on
October 14 to purge itself of the person whom it held
liable for bringing a union into its midst. Such motiva-
tions are proscribed by Section 8(a)(1) and (3) of the
Act.
B. Independent 8(a)(l/ Violations
The General Counsel contends that Respondent was
responsible for the commission of numerous unfair labor
432
GENTILE PONTIAC
practices based on its agents' conduct at a series of en-
counters in early October. I agree with some but not all
of the General Counsel's contentions.
The General Counsel submits that on three dates, Oc-
tober 3, 9 or 10, and 13, Tasnaddy told Dayton he heard
rumors that the employees were interested in forming a
union, thereby creating the impression of surveillance. I
do not concur that this conclusion is warranted with re-
spect to Tasnaddy's first such reference on October 3 for
the information apparently came to him fortuitously.
However, I reach a different conclusion with regard to
Tasnaddy's repeated references to such rumors a week
or so later. In particular when on October 13, he re-
ferred to information from a "reliable source" and added
that he knew the employees signed cards and that
Dayton was the principal union organizer, Tasnaddy's
knowledge no longer seemed a matter of local gossip,
but, rather, the product of purposeful scrutiny of the em-
ployees' organizational efforts. Such observations, espe-
cially when made in the context of other unlawful state-
ments, and when the employees had been circumspect
about their union involvement, tend to inhibit employees'
organizational activity and is, therefore, proscribed by
Section 8(a)(1). See GE's Trucking. Inc., 252 NLRB 947,
948 (1981).
There is no dispute that Tasnaddy encouraged the em-
ployees to contact a business representative whom he en-
dorsed. Since he reported knowing that they were inter-
ested in another union, his comments constitute induce-
ments to abandon the labor organization of their own
choosing in violation of Section 8(a)(1). See C. K. Smith
& Co., Inc., 227 NLRB 1061, 1067-68 (1977). Also Re-
spondent did not contradict Dayton's and Pennington's
testimony that Tasnaddy questioned them as to whether
they or Cassabone had signed union authorization cards.
Such interrogation clearly contravenes Section 8(a)(1) of
the Act.
I further find that on several occasions Tasnaddy
warned Dayton of adverse consequences in the event of
a union victory. On October 3, he vaguely alluded to a
cessation of past practices, and, more specifically on Oc-
tober 13, admitted telling Dayton that he would be
downgraded to a class B mechanic with the advent of
the Union. These threats, whether vague or specific,
were intended solely to intimidate, restrain, and coerce in
contravention of Section 8(a)(1). See Cone Mills Corpora-
tion, Revolution Division, 245 NLRB 159, 165-166 (1979);
Rainbow Tours, Inc., d/b/a Rainbow Coaches, 241 NLRB
589, 595 (1979).
The General Counsel further submits that Gentile's re-
marks to Dayton on or about October 13 were unlawful.
In assessing whether an employer's statements are coer-
cive or are simply expressions of free speech protected
by Section 8(c) of the Act, the Supreme Court instructed
in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617
(1969), that:
. . the precise scope of employer expression . . .
must be made in the context of its labor relations
setting. ... And any balancing of those rights must
take into account the economic dependence of the
employees on their employers, and the necessary
tendency of the former, because of that relationship,
to pick up intended implications of the latter that
might be more readily dismissed by a more disinter-
ested ear.
Here, it is significant that it was Gentile who initiated
the contact with Dayton and first mentioned the Union.6
Since there had been no previous discussions about this
matter between the two, and, since Tasnaddy only re-
cently had warned Dayton about possible adverse conse-
quences of continued union activity, it was hardly neces-
sary for the Company's president to be more precise.
Given this context, Gentile's remarks must be viewed as
little more than a thinly veiled threat violative of Section
8(a)(1).
The Appropriate Unit
There is no serious dispute that the employees' signa-
tures on the three cards admitted into evidence are au-
thentic, nor that this number constituted a majority of
Respondent's employees in the service department on
October 15, 1980, the date on which the Union's business
representative unsuccessfully attempted to meet with
Gentile to seek recognition.
However, at the hearing, Respondent contested the in-
clusion of the parts manager in the unit described in the
complaint as:
All mechanics, mechanic trainees, lot boys and parts
countermen employed by Respondent at its Vine-
land, New Jersey facility but excluding guards and
supervisors as defined in the Act.
I find merit in Respondent's position.
The evidence in this case clearly shows that the me-
chanics and lot boy shared a community of interests.
However, unlike them, the parts manager received a
salary plus commission, and drove a company car just as
Tasnaddy did. His uniform, which differed from those
worn by the three shop workers, identified him as a man-
ager. His sales duties brought him into daily contact with
the public and he had discretion to set discount prices on
items he sold. He had no employees under his supervi-
sion, except in Tasnaddy's absence, but, by the same
token, was not himself subject to direct supervision and
worked independently. Accordingly, his interests and his
allegiance were more closely aligned with management
than with the other members of the described unit,
making his inclusion in that unit inappropriate. See
Steven Davis, et al. d/b/a Carlton's Market, 243 NLRB
837, 843 (1979).
A Bargaining Order is Warranted
Although the business agent was unable to formally re-
quest that the Respondent recognize and bargain with
the Union, the General Counsel contends that a remedial
bargaining order is warranted under the principles enun-
ciated in Gissel Packing Co., supra. In Gissel, the Supreme
I do) not credit Gentile',, version of the encounter for it is inconeilv-
able that t)ayton would introduce the subject of Ihe Union when he had
taken some pains to conceal his involvement
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Court affirmed the Board's authority to issue a bargain-
ing order not only in exceptional cases marked by outra-
geous and pervasive unfair labor practices, but also in
less extraordinary cases where there are fewer "perva-
sive practices which nonetheless still have the tendency
to undermine majority strength and impede the election
process." Id. at 614. Applying these principles to the
present case, I conclude that a bargaining order is neces-
sary.
As shown by the findings above, as soon as Respond-
ent's agents learned of the possibility that its service de-
partment employees were interested in unionization, they
engaged in open and persistent opposition within a con-
centrated period of time. On numerous occasions, Tas-
naddy created the impression of surveillance, suggested
an alternative labor organization, interrogated the em-
ployees as to their union affiliation, suggested that cer-
tain unspecified company practices would be abolished,
and, in no uncertain terms, threatened Dayton with de-
motion. Added to this, the president of the Company im-
plied that it would be to Dayton's advantage to forget
about the Union. These violations of Section 8(a)(l) were
successive and, of course, reached each of the employees
in the small shop. But such conduct would not alone
constitute sufficient grounds for the imposition of a bar-
gaining order were it not coupled with Dayton's discrim-
inatory discharge.
The dismissal of a principal union activist is miscon-
duct which the Board and the courts have long regarded
as so serious and coercive as to justify a finding without
extensive explication that it is likely to have a lasting in-
hibitive effect on the work force. See N.L.R.B. v. Jamai-
ca Towing Co., 632 F.2d 208, 212-213 (2d Cir. 1980);
Faith Garment Company, Decision of Dunhall Pharmaceu-
tical, Inc., 246 NLRB 299 (1979), affd. 630 F.2d 630 (8th
Cir. 1980).
In the present case, the abrupt discharge led to the de-
parture not only of the chief union organizer, but also ef-
fectively removed one-fourth of the proposed unit. The
lesson which Respondent meant to convey to the other
employees could not have been lost-the price of active
support for the Union was punishment, immediate and
severe. That Dayton's discharge had precisely the effect
that Respondent intended is plainly demonstrated by
Pennington's expression of apprehension about his job se-
curity to Gentile on the day after the firing.
Respondent's remedial duties will include offering re-
instatement to Dayton. However, his return to the shop
will provide little assurance to other employers that Re-
spondent is more receptive to union activity, since the
offer will be made under duress. Under such conditions
and after an extensive lapse in time, reinstatement and
backpay cannot eradicate the harm that has been done.
See N.L.R.B. v. Jamaica Towing Co., supra at 213. What
is more, Dayton's presence is likely to serve as a con-
stant reminder that Respondent was willing to resort to
extreme measures in order to defeat the Union.
Under these circumstances, a cease-and-desist order
posted under Board and perhaps judicial compulsion
would not root out the coercive effects on employees of
Respondent's unlawful conduct. I also am doubtful that
such an order would deter Respondent from continuing
its unfair labor practices when they were committed by
the company president and his sole supervisor. Accord-
ingly, I conclude that in light ot the nature and number
of Respondent's unfair labor practices, "that the possibil-
ity of erasing the effects of past practices and of insuring
a fair election . . . is slight and that employee sentiment
once expressed through cards would, on balance, be
better protected by a bargaining order." Gissel Packing
Co., supra at 614-615.
Although none of the employees who signed cards
remain in Respondent's employ, Board precedent dictates
that I give evidence of employee turnover little or no
weight in determining that a bargaining order should
issue. See, Keystone Pretzel Bakery, Inc., 256 NLRB 334
(1981); Justak Brothers and Company, Inc., 253 NLRB
1054 (1980). To take such a factor into account would
merely afford "an added inducement to the employer to
indulge in unfair labor practices in order to defeat the
union in an election. He will have as an ally, in addition
to the attrition of union support inevitably springing
from delay in accomplishing results, the fact that turn-
over itself will help him, so that the longer he can hold
out, the better his chances of victory will be." Justak
Brothers, supra, quoting N.L.R.B. v. L. R. Foster Co., 418
F.2d 1, 5 (9th Cir. 1969), cert. denied 397 U.S. 990
(1970). Accord: Hedstrom Co. v. N.L.R.B., 629 F.2d 305,
312 (3d Cir. 1980).
Although a bargaining order will entail the imposition
of a union upon employees who had no voice in select-
ing or rejecting it, the Supreme Court observed in Gissel,
supra at 613:
There is, after all, nothing permanent in a bargain-
ing order, and if, after the effects of the employer's
acts have worn off, the employees clearly desire to
disavow the union, they can do so by filing a repre-
sentation petition.
Accordingly, the propriety of a bargaining order to ef-
fectively cure the Respondent's unfair labor practices
and to implement the will of the majority previously ex-
pressed, far outweighs any consideration that might oth-
erwise be given to employee turnover.
CONCI USIONS OF LAW
1. Respondent is 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. William Tasnaddy, Respondent's service manager, is
a supervisor within the meaning of Section 2(11) of the
Act and an agent of Respondent within the meaning of
Section 2(13) of the Act.
4. By discriminatorily discharging Charles Dayton,
Respondent violated Section 8(a)(l) and (3) of the Act.
5. By creating the impression of surveillance by telling
employees that it heard rumors they were forming a
union, and by inducing employees to abandon that union,
Respondent violated Section 8(a)(1) of the Act.
6. By threatening an employee with unspecified repri-
sals because of that employee's activities on behalf of the
Union, Respondent violated Section 8(a)(l) of the Act.
434
GENTILE PONTIAC
7. By interrogating employees concerning their union
activities, creating the impression of surveillance by tell-
ing employees that it heard all the employees had signed
cards and that it knew the identity of the organizer, and
threatening an employee with demotion should the
Union be selected as the collective-bargaining representa-
tive, Respondent violated Section 8(a)(1) of the Act.
8. A unit appropriate for collective bargaining is:
All mechanics, mechanic trainees and lot boys em-
ployed by Respondent at its Vineland, New Jersey
facility but excluding managerial employees and
guards and supervisors as defined in the Act.
9. At all times since October 9, 1980, and continuing
thereafter, Amalgamated Local Union 355 was designat-
ed by a majority of Respondent's employees as their ex-
clusive collective-bargaining representative in the above-
described unit within the meaning of Section 9(a) of the
Act.
10. The unfair labor practices summarized above have
prevented the holding of a free and fair election. There-
fore, to best serve the purposes of the Act, Respondent is
required to recognize and bargain with the Union as of
October 15, 1980, the date on which the Union attempt-
ed to obtain recognition and bargaining.
11. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent violated the Act in cer-
tain respects, I shall recommend that it be required to
cease and desist therefrom. Because Respondent commit-
ted numerous, pervasive, and serious violations of the
Act, through its chief supervisor and company president,
I conclude that unless restrained Respondent is likely to
engage in continuing unlawful efforts in the future to
prevent its employees from engaging in union and pro-
tected concerted activity. Accordingly, Respondent will
be required to refrain from in any other manner infring-
ing on employees' rights to engage in such activity. See
Hickmott Foods, Inc., 242 NLRB 1357 (1979).
Affirmatively, Respondent will be required to offer
Charles Dayton immediate and full reinstatement to the
job of which he was unlawfully deprived, or, if such job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges previously enjoyed. Further, Respondent will
be ordered to make Dayton whole forthwith for any loss
of pay he may have suffered by reason of his discharge
on October 14, 1980, to the date of Respondent's offer to
reinstate him, less any net earnings during that period in
accordance with the Board's formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
as called for in Florida Steel Corporation, 231 NLRB 651
(1977).
In addition, the Respondent will be required to bargain
with the Union on request, such bargaining to be retro-
active to October 15, 1980.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER
The Respondent, Gentile Pontiac, Vineland, New
Jersey, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Creating the impression of surveillance by telling
employees that it heard talk about a labor organization;
inducing employees to abandon the labor organization;
threatening an employee with unspecified reprisals be-
cause of said employee's activities on behalf of the
Union; interrogating employees concerning their union
activities; creating the impression of surveillance by tell-
ing employees that it heard the employees had signed
cards and that it knew the identity of the organizer; and
threatening an employee with demotion should the
Union be selected as the collective-bargaining representa-
tive.
(h) Discharging or otherwise discriminating against
employees with regard to their hire or tenure of employ-
ment or any term or condition of employment for engag-
ing in activities on behalf of a labor organization or for
engaging in activitity protected by Section 7 of the Act:
(c) In any other manner interfering with, restraining or
coercing its employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Charles Dayton immediate and full reinstate-
ment to his former job, or, if that job 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 resulting from the dis-
crimination against him.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, per-
sonnel records, and all other records necessary to ana-
lyze the amount of money due under the terms of this
recommended Order.
(c) Upon request, recognize and bargain collectively
with Amalgamated Local Union 355 as the exclusive col-
lective-bargaining representative of the employees of Re-
spondent in the appropriate bargaining unit described
below:
All mechanics, mechanic trainees and lot boys em-
ployed by Respondent at its Vineland, New Jersey
facility but excluding managerial employees, and
guards and supervisors as defined in the Act.
7 In the event no exceptlon. are filed as provided by Sec 102 46 of he
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
435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its Vineland, New Jersey, facility copies of
the attached notice marked "Appendix." 8 Copies of said
notice, on forms provided by the Regional Director for
Region 4, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
[ 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 l.abor Relations Board' shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Ilabor Relatilons Board"
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
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
436