Gregory Chevrolet

National Labor Relations Board - Board Decisions

Sep 23, 1981

258 N.L.R.B. 233 (N.L.R.B. 1981)

GREGORY CHEVROLET
Gregory Chevrolet, Inc. and Amalgamated Local
Union 355. Case 22-CA-9882
September 23, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 29, 1981, Administrative Law Judge
Steven B. Fish issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.'
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, Gregory Chev-
rolet, Inc., East Orange, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the 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 his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to recognize and bar-
gain collectively with Amalgamated Local
Union 355, herein called Local 355, as the ex-
clusive bargaining representative of our em-
ployees in the following appropriate unit:
All full-time and regular part-time service
and maintenance employees employed by us
at our East Orange, New Jersey facility in-
cluding all mechanics, service writers, por-
ters, and body and parts shop employees,
but excluding all office clerical employees,
salesmen, professional employees, guards
and supervisors as defined in the Act.
WE WILL NOT interrogate our employees
concerning their activities on behalf of, or sup-
port for, Local 355, or concerning their rea-
sons for continuing to support Local 355.
WE WILL NOT solicit grievances from our
employees concerning their working condi-
tions, and hold out the prospect of remedial
action, for the purpose of undermining our em-
ployees' support of Local 355.
WE WILL NOT suggest or encourage our em-
ployees to start or form an in-house union in-
stead of continuing their support and activities
on behalf of Local 355, or promise our em-
ployees better benefits and improvements in
their terms and conditions of employment if
they choose to be represented by an in-house
union and abandon their support for Local
355.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed them
under Section 7 of the Act.
WE WILL, upon request, bargain collectively
in good faith with Local 355 as the exclusive
bargaining representative of our employees in
the appropriate unit set forth above, with re-
spect to wages, rates of pay, hours of employ-
ment, and other terms and conditions of em-
ployment, and, if an understanding is reached,
embody such understanding in a signed writ-
ten agreement.
GREGORY CHEVROLET, INC.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge: The
hearing of the above-entitled case was held before me in
Newark, New Jersey, on December 3 and 4, 1980.' On
May 27, the Acting Regional Director for Region 22 of
the National Labor Relations Board issued a complaint
and notice of hearing, alleging that Gregory Chevrolet,
Inc., herein called Respondent, violated Section 8(a)(l).
I All dates hereinafter, unless otherwise indicated. refer to 1980.
258 NLRB No. 34
233
DECISIONS OF NATIONAL I.ABOR RELATIONS BO()ARI)
(3), and (5) of the National Labor Relations Act, herein
called the Act.
At the hearing, I granted counsel for the General
Counsel's request to withdraw two paragraphs of the
complaint, and in his brief the General Counsel requested
withdrawal of paragraph 29 of the complaint, which en-
compasses the 8(a)(3) allegation herein. Said request to
withdraw is hereby granted.
The remaining allegations in the complaint allege that
Respondent violated Section 8(a)(1) of the Act by inter-
rogating its employees concerning their membership in,
and activities on behalf of, Amalgamated Local Union
355, herein called the Union or Local 355 or the Charg-
ing Party; by soliciting grievances from its employees; by
suggesting that its employees join a "Company Union";
by offering and promising its employees improved bene-
fits if they joined a "company union" rather than becom-
ing or remaining members of Local 355; and by locking
out its employees on March 5, 1980. The complaint also
alleges that Respondent violated Section 8(a)(1) and (5)
of the Act by refusing to recognize and bargain with the
Union, as the exclusive bargaining representative of its
employees in an appropriate unit, since February 28.
Briefs have been received from the General Counsel
and from Respondent,2 and have been duly considered.
Upon consideration of the entire record, and my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, is engaged in the
retail sale of new and used cars and trucks and related
products, with its place of business located in East
Orange, New Jersey. Annually, Respondent receives
gross revenues from its operations in excess of $500,000,
and receives goods valued in excess of $50,000, which
were transported to its place of business in interstate
commerce directly from States other than New Jersey.
Respondent admits and I so find that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. It is also admitted, and I so
find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
It. T7HE FACTS
Respondent's facility in East Orange, New Jersey, con-
sists of a large sales showroom and a service and mainte-
nance area where cars are serviced, repaired and made
ready for sale. The facility also includes offices and con-
ference rooms. In the back there is a large parking lot
which is used to store new vehicles and vehicles await-
ing service and where employees are permitted to park
their own cars. The lot is fenced in and entry is gained
through a gate in the front of the premises. The facility
also contains a rooftop parking lot used for storage of
cars with access by a ramp from the rear lot. In addition
2 Counsel for the Charging Party did not file a brief, but stated on the
record that the Charging Party joins in the brief filed by the General
Counsel.
to the main entrance, there are a number of other en-
trances to the premises where employees can enter.
As of February 28, 1980, Respondent employed 18 em-
ployees:' in the service and maintenance department. The
department consisted of mechanics, get ready men, body
shop employees, polishers, service writers, porters, and
parts department employees. In overall charge of the de-
partment were the service manager and the service di-
rector, Charlie Klebosis and Charlie Kurzman, respec-
tively. 4
The only disputed classification consists of parts de-
partment employees, whose inclusion in the unit is dis-
puted by Respondent. The parts department consists of a
counterman, a driver, and a manager. The driver picks
up the parts used by other employees in the department
to repair and service cars, and brings them to Respond-
ent's premises. When the other service department em-
ployees needs parts, they go to the parts room and re-
quest the parts, and the parts counterman or manager
would looks up the parts and furnish them to the service
employees. The parts department is located in the same
building as the shop, but is in a separate area off from
the shop and up a few stairs.
Respondent also employed a Robert Campbell, as a
shop foreman. He assigned work to employees, would be
called if an employee was going to be late, and answered
questions about employees paychecks. In the service de-
partment only Kurzman, Klebosis, and Campbell wore a
suit and tie to work and were given "demo" automobiles.
On February 27, Allen Settlow, vice president and
business agent of the Union, met with II employees of
Respondent at a restaurant in West Orange, New Jersey.
Settlow explained that the Union was attempting to or-
ganize Respondent's employees, and distributed authori-
zation cards to the employees present. He explained that
the cards were proof that they wanted Local 355 to be
their bargaining agent, and all I1 employees signed the
cards and returned them to Settlow at the meeting. 5
Settlow also distributed additional cards to two or three
employees to pass out to other employees who were not
present at the meeting. One of these employees was
Donald Klenke who asked Settlow for a card for his son
Kenneth, an employee of Respondent, who was not at
the meeting.
On February 28, Settlow and Frank D'lsa, secretary-
treasurer of the Union, went to Respondent's premises.
When they arrived Settlow received signed authorization
cards from Kenneth Klenke and Robert Capiello in the
service department. Later on in the day, the union offi-
cials met with Ettore Cordasco, Respondent's president
' George attle, William Beseridge. James Caldwell, Eddy Cannon,
Robert Capiello,. Domino ernard, Mark Epps. Robert Gilroy,. TerrN
Graham, Donald Klenke. Kenneth Klenke. John Ludwig, Garland
Moody, Victor Moody. Robert Muziani. Kenneth Simon., Har.ey Single-
ton, and John Tobia.
4 It as stipulated that Klebosis and Kurzman had the authority to
hire and fire employees Therefore, I find them to he supervisors within
the meaning of the Act
a These employees were Donald Kletnke. Vctor Moody. Robert Mu-
ziani. Eddy Cannon, John Tobia. James Cald,el. Bernard Domino,
Robert Gilroy. Mark Epps. John L.udsig, and William Beveridge
234
GREGORY CHEVRO()ET
and chief operating officer, and Harvy Gillner, Respond-
ent's comptroller.
Settlow began the meeting by introducing himself and
D'Isa and by stating that the Union had obtained suffi-
cient authorization cards to represent a majority of Re-
spondent's employees in its service department. Cordasco
replied, "I can't believe they would do this to me." Sett-
low then asked Cordasco if he would like to see the
cards, and Cordasco said that he would. Settlow handed
Cordasco the 13 authorization cards that he had ob-
tained. Cordasco and Gillner then together looked at
each of the cards, one by one, putting them down on the
desk after looking at them. Upon observing one of the
cards, Cordasco remarked to Gillner, "look what this
SOB did." Settlow then stated that now that Cordasco
had seen the cards, the Union would like recognition so
that they could set a date to sit down and bargain.
Cordasco then asked what his legal rights were and
whether he was entitled to have an election. D'Isa re-
sponded that he could not give legal advice to Cordasco,
and that he should consult a lawyer for that purpose.
D'Isa explained what recognition meant and continued to
press for immediate recognition from Respondent. In
answer to Cordasco's question about having an election,
D'lsa replied that he could have an election, but that the
Union did not want him to have an election.
Cordasco said that he needed some time to consult
with an attorney. The union officials continued to urge
him to grant recognition, telling him that the Union was
not looking to negotiate terms that would put Respond-
ent out of business and that the Union realized Respond-
ent's financial situation.
Cordasco then claimed that he did not believe that his
employees really wanted a union nor that they signed the
authorization cards on their own. Cordasco suggested
that perhaps the Union had "conned" or coerced the em-
ployees into signing their cards.
D'Isa responded that Cordasco was free to meet with
the employees to satisfy himself that the men were not
coerced into signing cards and, if he were satisfied, then
he would give the Union recognition.
Cordasco asked how he could do this, and whether it
would be okay for him to meet with the men. D'lsa
added that, since the Union suggested it, it was okay. He
continued that the Union would give Cordasco an hour
to meet with the employees, talk to them, ask them
whether they were threatened, or ask them any other
questions or do anything else that Cordasco wanted to
do to find out whether or not the employees had signed
cards legitimately. If he found out clearly that the cards
were not coerced, the Union would be back in an hour
and Respondent would then give the Union recognition.
Cordasco replied, "[O]kay, give me an hour," and the
union officials left the room6
b The above recitation of facts with respect to the conversation e-
tween Cordasco. D'lsa, and Senttlow is derived from a composite of the
testimony of these three participants. Their testimony is essentially in
accord in most areas of significance, with the exception of one crucial
area. Cordasco denies the testimony of D'Isa and Setttow that the Union
asked. or that he agreed, to give the Union recognition, if he satisfied
himself at the meeting of his employees that the cards were not coerced.
I credit the mutually corroborative testimony of D'lsa and Settlow on
this point. I found them to he more impressise and candid witnesses than
The service department employees were then instruct-
ed to report to a conference room in the basement of the
sales area. All 18 service department employees were
present. along with Campbell.7 Cordasco, and Gillner.
Cordasco did all the talking for Respondent at the meet-
ing of employees. He began by stating that he wanted a
few words with the employees. He said, "I want to be
sure that you are really sure that this is the action you
want to take or you do want a union." Cordasco then
picked up the packet of union cards that he had been
given by Settlow. He read off each name one by one,
and as he did looked at each employee and the employ-
ees looked back at him. He then placed each card down
on the table and read the next name off. Neither he nor
any of the employees said anything while Cordasco was
reading off the names, other than Cordasco mentioning
each card signer one by one. Cordasco read off all the
cards that he was given by Settlow.8
After Cordasco completed his reading of the cards,
and placing the cards on the table, he commented to the
employees that he could not believe that they went this
route, and that he always tried to do the right thing by
the men. He then asked the employees why they had
signed cards for the Union, why they wanted the Union,
and what were some of the problems. Cordasco also told
the employees that he always had an open door policy
and the employees were always welcome to come to his
office if they had a problem. He continued by asking the
employees if they were sure they knew what they were
doing and making the right decision, and asked what
their problems were.
One of the employees responded that the workers
were dissatisfied with the treatment that they received
from Service Manager Bill Kurzman, and that they felt
that their jobs were threatened by Kurzman who had no
feelings for people t Cordasco replied that things could
be changed. t Cordasco then suggested that the men
could have a company union. He told them that some
dealerships have company unions, where a couple of
people are appointed by the employees to speak to the
owner about straightening out problems in the shop.
Cordasco added that a company union would be better
than an outside union, and that there would be no dues
Cordasco, who was frequently argumentative and evasive in his re-
sponses. and often failed to answer the questions put to him. Moreover. I
note that Respondent did not call as a witness Harry Gillner. its comp-
troller who was present during this conversation. This permits me to
draw an adverse inference. which I do. that his testimony would support
the version of the General Counsel's witnesses of this meeting. English
Brothers Pern and Foundry. 253 NLRB 530 1980), and cases cited
therein.
7 Campbell left in the middle of the meeting.
' Cordasco testified that he thought that he read off II cards and that
there were about 16 employees present. However. as noted. I have found
that Cordasco was given 13 cards by Settlow, and that there were 18 em-
ployees present at the meeting. I therefore find that Cordasco read off 13
names. In either event, it is undisputed and admitted by Cordasco that he
read off at the meeting. and that the Union had obtained, card, from a
majority of Respondent's service department employees.
9 Kurzman had recently fired an employee who had been employed by
Respondent for 20 years
In Coirdasco testified that he was alread' dissatisfied with Kurzman's
performance. and in fact had alread made up his mind to discharge
Kurzman However. he did nol feel that the meeting as the proper
place to inform the emploeces.
235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to pay or rules and regulations to follow. He then stated
that, if the employees chose a company union, he hoped
"things can change."
Cordasco concluded by informing the employees that
they could have a choice of a company union, Local
355, or perhaps no union at all and told them to think it
over. One of the employees asked Cordasco to leave the
room and he did so. 1 I
The employees then discussed among themselves
whether they wanted to stay with Local 355 or go with
a company union. A vote was taken by raising hands and
all 18 employees voted for Local 355. During this meet-
ing an additional card was executed by employee Ken
Simon. In addition the employees decided that Muziani
would be shop steward for the employees.
The employees then sent word to Cordasco that the
meeting was concluded. Cordasco came back downstairs
to the employees. In the presence of the other employ-
ees, Muziani said that the employees had decided to go
with Local 355, and that he had been appointed shop ste-
ward. Cardasco said nothing, and left the meeting.
As the employees were leaving the meeting, D'Isa and
Settlow returned. Muziani told Settlow that Cordasco
had suggested that they form a company union, and that
the employees had chosen to stay with Local 355.
Simon's signed authorization card was given to D'lsa,
and the union officials then went to Cordasco's office.
Present in the office were Cordasco and Gillner. Settlow
began the meeting by stating that he guessed that Cor-
dasco had his meeting and he "sees the employees are
still with the Union and as a matter of fact, we have an-
other card." Settlow then gave Cordasco Simon's card
and asked for recognition and for Cordasco to sit down
and make an appointment to negotiate. Cordasco replied
that he was not going to give the Union recognition.
D'Isa then stated that Cordasco had indicated that, if he
satisfied himself that the Union had not coerced the em-
ployees and if they signed cards with the Union, Cor-
dasco would give the Union recognition. Cordasco re-
sponded that the matter was going to be handled
through his lawyer, and there was no point in pushing it.
D'Isa asked Cordasco when he expected to be in touch
with his lawyer, and Cordasco responded on Monday,
March 3. During the course of this discussion, Cordasco
was informed that the customers' keys were missing.'2
Customers had started to line up and were asking for
their cars and their cars could not be returned since they
could not find their keys. At some point during the dis-
cussion, Campbell informed Cordasco that Muziani had
informed Campbell where the keys were hidden, and
I The above findings with respect to the meeting are derived from a
synthesis of the testimony of Muziani and Cordasco, which is substantial-
ly in accord in most areas of significance. The only major area of dispute
between them is Cordasco's denial that he gave any indications or opin-
ions on which of the options that he proposed to the employees would be
best for the employees. I credit Muziani's testimony, as set forth above,
that Cordasco did make his feelings known on this subject. As noted
above, Cordasco was an evasive and argumentative witness. Muziani on
the other hand while somewhat nervous and reluctant to, testify, ap-
peared to me to be forthright and believable in his recollection of the
events of the meeting.
12 These are keys to cars of customers that Respondent was at the time
servicing or repairing.
that Campbell had found the keys where Muziani had in-
dicated they could be found.t 3
D'lsa then met with the employees and told them that
Cordasco wanted to speak to a lawyer, but that he
(D'Isa) thought that the Union would be granted recog-
nition.
D'lsa returned to the premises on Monday, and asked
to speak to Cordasco. He was informed that Cordasco
was not in and would not be in until the next day.
On March 4 around 5:30 p.m., employee Victor
Moody approached Cordasco, and informed him that
there was going to be a strike the next day, March 5.
Cordasco did not ask nor did Moody explain why a
strike was being called. Cordasco made no effort to con-
tact the Union to find out if a strike was planned, nor did
he check with Muziani, who Cordasco knew was ap-
pointed shop steward for the Union, as to whether a
strike was planned. Cordasco testified that because of the
episode of the lost keys on February 28, which he attrib-
uted to the Union, he feared vandalism in the event of a
strike. Therefore he decided to lock the main gate which
gives access to the rear parking lot and rooftop storage
lot, which contained new cars and customer vehicles,
which could not be easily guarded. All other entrances
(six or seven in number) to the building were left open.
On the morning of March 5, three employees reported
to work, entered the plant without difficulty, and com-
menced working.
Most of the employees, seeing the main gate locked,
proceeded to a local diner down the street from Re-
spondent's premises. Employees Caldwell and Epps ar-
rived together and walked into the plant. Caldwell ap-
proached Cordasco and asked, "[WJhere is everybody?"
Cordasco replied that they were "down the street."
Caldwell then said that he guessed that the employees
were striking and that he and Epps were going with
them. Cordasco responded, "[I]f you want to work, you
just go to work normally." Caldwell answered, "[N]o
we're going with them," and he and Epps left to join the
other employees at the diner. 4
Around 11 a.m., D'lsa and Settlow, after being called
by the employees, arrived at the premises. D'lsa asked
Cordasco why he was locking out his employees. Cor-
dasco responded that there was no lockout, the men
were on strike. D'Isa denied that there was a strike. Cor-
dasco repeated that the Union had called for a strike,
and that he had locked the main gate because he did not
want any vandalism. D'Isa repeated that there was no
strike and Cordasco kept insisting there was no lockout.
After further discussion, including a call to Cordasco's
attorney, it was agreed that the employees would imme-
diately return to work, that Respondent would unlock
the main gate. The employees returned to work and
were paid for the entire day.
On March 14, the Union filed a petition for an election
in Case 22-RC-8167. Pursuant to that petition, a Stipula-
'" For reasons set forth above. I do not credit Cordasco's testimony,
denied by Settlow. that Settlow informed Cordasco that the keys were
missing.
14 ased on the uncontradicted testimony of Cordasco. Caldwell and
Epps did not testify
236
GREGORY CHEVROLET
tion for Consent Election was executed on March 27 and
approved by the Regional Director for Region 22 on
March 28, providing for an election to be held on April
18. The unit set forth in said stipulation includes all full-
time and regular part-time service and maintenance em-
ployees employed by Respondent, including all mechan-
ics, service writers, porters, and body and parts shop em-
ployees, exclusive of office clerical employees, salesmen,
professional employees, guards and supervisors. The stip-
ulation was executed at a conference at the Board's Re-
gional Office, at the same time that the Union agreed to
withdraw prior unfair labor practice charges that it had
filed.
During the course of the discussion at the Regional
Office concerning the execution of the stipulation, the
only major area of disagreement was the status of Bob
Campbell. Both the Union and Respondent wanted parts
department employees included in the unit, and there
was no dispute concerning their inclusion in the appro-
priate bargaining unit.
On April 3, the instant charges were filed, and on Oc-
tober 8, 1980, the Regional Director issued an order
withdrawing approval of the election agreement, and dis-
missing the petition filed, in view of the instant 8(a)(5)
complaint issued on May 27.
III. CONCLUDING FINDINGS
A. The 8(a)(1) Allegations
1. The February 28 meeting
Cordasco, at a meeting of his employees on February
28, began by telling them that he wanted to be sure that
the employees were sure of their action in selecting the
Union. He then read off the name of each employee who
signed an authorization card and looked at them. The
General Counsel contends that this conduct constitutes
an unlawful interrogation in violation of Section 8(a)(l)
of the Act. I agree. Cordasco's comments to the employ-
ees, followed by his reading of the names and his looking
at the employees, were clearly designed to elicit a re-
sponse from the employees as to their union sentiments
and activities, and are violative of Section 8(a)(1) of the
Act.
Cordasco further unlawfully interrogated his employ-
ees when he, after completing his reading of the names,
asked them why they had signed cards, why they
wanted the Union, and what the problems were. An em-
ployer is not free to probe directly or indirectly into the
reasons for employees' supporting the Union.'5
In addition, I find that these questions the Respondent
coupled with Cordasco's further remarks that "things
could change" in response to the employees' complaints,
constitute unlawful solicitation of grievances and promise
of benefits in violation of Section 8(a)(1) of the Act. Al-
though Cordasco merely said that things could change,
in responding to the employees' presentation of their
problems, "such cautious language, or even a refusal to
commit Respondent to specific corrective action, does
not cancel the employees' anticipation of improved con-
' ITT Automotive Electrical Products Division. 231 NLRB 878 (1977)1:
Durango Boot. A Division of US. Industries. Inc.. 247 NLRB 361 (1980).
ditions if the employees oppose or vote against the
union.' 6 I find therefore that Cordasco by his remarks
was impliedly promising benefits to employees, and hold-
ing forth the prospect that its employees' complaints
would be remedied without the necessity of selecting
Local 355, in violation of Section 8(a)(1) of the Act.' 7
Cordasco compounded this violation of the Act by
then suggesting that his employees form a company
union,' s stating that such a union would be better for
the employees, and concluding by telling them that if
they chose such a union he (Cordasco) hoped "things
can change." Such solicitation that employees form their
own grievance committee or in-house union, as an alter-
native to Local 355, is also violative of Section 8(a)(1) of
the Act,' 9 particularly where the suggestion that em-
ployees form such an organization is coupled with, as
here, implied promises of remedying the employees'
complaints should they select such an organization as
their representative.20
Respondent argues that Cordasco's comments that
"things can change" was not unlawful. Respondent con-
tends that the only problem discussed by the employees
was their dissatisfaction with a supervisor, Service Man-
ager Kurzman. Respondent then argues that "it is well
established law that the terms of employment including
tenure of supervisors lie within the sole discretion of
management." Mobil Oil Company, 147 NLRB 337
(1964). Therefore it is contended that a promise of bene-
fits proscribed by the Act contemplates terms and condi-
tions of employment of employees in the unit, and that
Respondent was within its rights to make the statement
in question, impliedly promising to correct the employ-
ees' dissatisfaction with Supervisor Kurzman.
Preliminarily, Cordasco's remark that "things can
change" was not specifically restricted to Supervisor
Kurzman, and could be interpreted as a generalized
statement of improved conditions, should employees
reject Local 355 and choose an in-house union. More sig-
nificantly, even if the remark is to be held to refer only
to Supervisor Kurzman and employees' complaints about
him, Respondent is incorrect in its analysis. Contrary to
Respondent, it is not well established that terms and con-
ditions of employment of supervisors lie within the sole
discretion of management. Mobil Oil, supra, does not
stand for that proposition and there are numerous kinds
of situations, too numerous to mention, where an em-
ployer's treatment of his supervisors' terms and condi-
tions of employment can be proscribed by the Act,
where it affects the terms and conditions of employment
of its employees. Thus, it is unlawful for an employer to
force an immediate resignation of a supervisor, concern-
'i Reliance Electric Company. Madison Plant Mechanical Drives Divi-
sion, 191 NLRB 44. 46(1971).
II Hansa Mold. Inc., 243 NLRB 853 (1979); Steiner-Liff Textile Prod-
ucts Company. 249 NLRB 1069 (1980); C. Markus Hardware. Inc., 243 903
(1979); Reliance Electric Company, supra.
' It is clear that Cordasco was referring to an in-house or in-plant
union, rather than a union dominated or controlled by Respondent
19 The May Department Stores Company d/b/a The M O'Neil Compa-
ny, 211 NLRB 150 (1974): Drug Package Company Inc., 228 NLRB 108
(1977); Aeroglavics. Inc., 228 NLRB 1157 (1977).
21' iWomac Industres. Inc., 238 NLRB 43 (1978); Puritan Furniture
Corp.. 231 NLRB 1184 1977).
237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing whom employees have expressed dissatisfaction for
the purpose of inducing employees to reject a union. Ann
Lee Sportswear, Inc., 220 NLRB 982 (1975). See also
Eagle Material Handling of New Jersey, etc., 224 NLRB
1529 (1976).
Thus, by impliedly promising to remedy its employees'
complaints about Supervisor Kurzman's treatment of said
employees to dissuade them from supporting Local 355,
Respondent has violated Section 8(a)(1) of the Act. 2
2. The alleged "lockout" of March 5
The General Counsel contends that, since Cordasco's
failure to open the main gate of his premises on March 5
resulted in some of the employees not working, this
action constitutes a "lockout" in violation of Section
8(a)(1) of the Act. 22 The General Counsel argues that
the employees must have associated the "lockout" with
their joining Local 355 and not selecting an in-house
union.
Respondent argues that the evidence reveals that no
lockout has taken place. I agree.
Although Respondent did lock one gate, all the other
entrances to the premises were open, no employees were
prevented from entering the plant, and in fact some em-
ployees did enter the premises and worked throughout
the entire incident.
Some employees upon seeing the gate locked may
have incorrectly assumed that the employees were
locked out, but this is insufficient evidence to establish
the existence of a lockout. When employees Caldwell
and Epps arrived at the plant, they asked Cordasco
where everybody was and were told they were down
the street. Caldwell then replied that he guessed that em-
ployees were striking and that he and Epps were going
with them. Cordasco then informed Epps and Caldwell
that if they wanted to work they could do so, and they
answered no, that they were going with the other men.
Moreover, when the union representatives came to the
premises, and accused Cordasco of locking out the em-
ployees, Cordasco immediately denied that there was a
lockout and told the Union he had locked the main gate
to prevent vandalism. Thus, is clear that the employees
were never prevented from working by Respondent and
were therefore not "locked out" as alleged in the com-
plaint.
I find further that the General Counsel has not estab-
lished that Respondent's action in locking the main gate
was motivated by any union or concerted activities of its
employees. There is no basis in the record to refute or
contradict Cordasco's testimony that he was informed on
March 4 by employee Victor Moody that a strike was
planned for the next day, and that his fear of vandalism
by the Union or his employees motivated his action. Cor-
dasco, based on his report from Campbell, reasonably be-
lieved that the Union may have been responsible for the
missing keys on the date of the demand for recogni-
21 Tennetsee Cartage Co., Inc., 250 NLRB 112 (1980).
22 As noted, the complaint alleges this action to be also in violation of
Sec. 8(aX3) of the Act. The General Counsel however withdrew this al-
legation of the complaint, since the evidence revealed that all the em-
ployees who did not work tha, morning were paid for the entire day
tion,2 " and I therefore find it was reasonable for him to
have feared potential vandalism in the event of a strike,
and that his decision to lock the front gate was calculat-
ed to prevent easy access by the employees to the roof-
top, where many of his customers' cars were parked, and
not motivated by any unlawful considerations. I shall
therefore recommend dismissal of these allegations of the
complaint.
B. The 8(a)(5) Allegations
I. Appropriate unit
Respondent denies the appropriateness of the unit al-
leged in the complaint, and asserts that this unit is too
broad, and that parts department employees should be
excluded.
Respondent contends that the Board has held that, in
automobile retail sales establishments, units limited to
employees engaged in mechanical work are "presump-
tively appropriate" and nonmechanical employees, such
as parts employees, should be excluded. Respondent cites
Montgomery Ward & Co., Incorporated, 225 NLRB 547
(1976); and Lyon & Ryan Ford, Inc., 246 NLRB 1 (1979),
as authority for this proposition. These cases do not hold
that a unit of employees engaged in mechanical work,
excluding nonmechanical employees, such as parts em-
ployees, is presumptively appropriate. These cases
merely find that in the particular factual situations before
them such a unit sought by the petitioner or the union
was an appropriate unit. In fact, Montgomery Ward,
supra, specifically states that an overall service unit in-
cluding parts employees would also be an appropriate
unit.
The Board, contrary to Respondent's assertion. has an
established practice of finding all employees of an auto-
mobile service department, including parts department
employees, to be a single appropriate unit.2 4
The unit sought by the Union need not be the only or
even the most appropriate unit. All that is required to
find a violation of Section 8(a)(5) of the Act is that the
unit sought by Local 355 be an appropriate unit. Gerald
G. Gogin d/b/a Gogin Trucking, 229 NLRB 529 (1977).
In the instant case, although there are some factors in
the record which would render a unit, excluding parts
employees, to be appropriate,2 5 I also find the record
sufficient to support an inference that the unit requested
by the Union and alleged in the complaint is also appro-
priate. Thus, the parts employees are part of the same
production process of the service department, have fre-
quent contact with the other service department employ-
ees in distributing parts to them, and are also subject to
the same overall supervision. These facts coupled with
the Board's established practice in such units as set forth
in Granelo, supra, are sufficient for me to find, which I
z Thus, Campbell reported to him that Muziani. the union shop ste-
ward. iformed Campbell where the keys were to he found.
4 Graneto Daotun. .4 Granreto ConpanV, 203 NLRB 550 (1973)
:' Such as different skills and geographical isolation.
238
GREGORY CHEVROLET
do, that the unit alleged in the complaint is an appropri-
ate unit for collective bargaining. 2 6
2. Majority status
There can be no question that, as of February 28, the
Union represented a majority of Respondent's employ-
ees, in the unit which I have found to be appropriate. As
noted I have found that the Union presented 13 authori-
zation cards2 7 to Cordasco prior to his February 28
meeting with his employees and that there were 18 em-
ployees in the above-described appropriate unit. 28
I therefore find as alleged in the complaint that the
Union as of February 28 represented a majority of Re-
spondent's employees in an appropriate unit.
3. Respondent's alleged obligation to bargain with
the Union on February 28
The Board, in Green Briar Nursing Home, 201 NLRB
503 (1973), summarized the applicable law with respect
to Respondent's obligation to bargain herein:
In Linden Lumber [190 NLRB 718 (1971)] and
our later decision in Sullivan Electric Company [199
NLRB 809 (1972)], we made it clear that an em-
ployer will not be found in violation of Section
8(a)(5) of the Act solely upon the basis of his refusal
to accept union-proffered evidence of majority
status other than the results of a Board election,
unless his conduct precluded resort to an election.
In those cases we pointed out that an election will
be precluded by substantial employer misconduct in
violations of the Act, by an employer's action in
agreeing upon another method of ascertaining
whether a union majority existed, or by an employ-
er's conduct of a poll of employees which estab-
lishes the existence of a majority.
I have found above that, after the Union requested
recognition and Cordasco examined the authorization
cards obtained by the Union, Cordasco questioned the
Union's majority status, and claimed that he did not be-
lieve that his employees signed cards on their own, sug-
gesting that perhaps the Union coerced or "conned" em-
ployees into signing such cards. The Union then offered
Cordasco the opportunity to meet with the employees to
satisfy himself that the cards were not coerced and that
the employees were not "conned" into executing their
cards. Disa stated that, if Cordasco satisfied himself that
the men were not coerced, then he would give the
Union recognition. Cordasco responded, "O.K. give me
26 It is also noted in this connection that at the representation case
conference, Respondent signed a stipulation agreeing that this unit is ap-
propriate and during the course of the discussions leading to the execu-
tion of said stipulation, there was no dispute over the inclusion of parts
department employees in the unit.
2'All cards were properly authenticated by the solicitor of the cards
and are valid single purpose authorization cards.
26 This figure excludes Robert Campbell, alleged by the General
Counsel to be a shop foreman and a supervisor of Respondent. I find that
the record is insufficient to make a determination of his status. and, since
his inclusion or exclusion in the unit does not change the Union's major-
ity status. I deem it unnecessary to decide whether he is a supervisor
within the meaning of the Act.
an hour." By this conduct I find that Respondent by
Cordasco agreed to the Union's offer of a method
whereby Cordasco could satisfy himself that the Union
represented a majority. 29 Having so agreed, Respondent
should not now be permitted to disclaim the results of
his inquiry, simply because it finds them distasteful. 30
Respondent argues that the Snow & Sons doctrine
should not be applied herein, because Respondent never
acquired knowledge of majority status of the Union. It is
true as noted by Respondent that no vote of employees
was taken in Cordasco's presence, and that when he
called out the names of each card signer they did not say
anything to him. However, I find that in the overall cir-
cumstances of the meeting there can be no doubt that
Cordasco satisfied himself that the Union, represented a
majority, and that therefore, pursuant to his agreement
with the Union, Respondent was obligated to recognize
and bargain with the Union. Cordasco began the meeting
by telling the employees that he wanted to be sure that
the employees were really sure they wanted the Union,
and proceeded to pick up the signed card, look at the
employee, and put the card down. The employees
looked back at Cordasco, and although nothing was said
by the employees, it appears that by their silence, Cor-
dasco assumed their silence to be a confirmation of their
having executed the cards and their desire for union rep-
resentation. That Cordasco so interpreted the employees'
action is demonstrated by his comments after he com-
pleted reading off all the names that he could not believe
that they went this route,3 ' and that he always tried to
do right by the men. Cordasco then proceeded to ask the
men why they had signed cards, why they wanted the
Union, if they were sure they made the right decision,
and what their problems were.
These remarks conclusively establish that Cordasco, as
a result of the procedure chosen by him, satisfied himself
that the Union represented a majority of his employ-
ees.3 2 The succeeding events at the meeting only served
to reinforce the conclusion that Cordasco was convinced
of the employees' desires to be represented by the Union.
Thus, after having been initially satisfied of his employ-
ees' intentions concerning union representation, Cordasco
attempted to unlawfully change their minds, by commit-
ting various unfair labor practices as found above. After
he unlawfully suggested that the employees reject Local
355 and choose an in-house union, and promised them
benefits if they followed his recommendations, he told
them to think it over. As Respondent points out, Cor-
dasco did not tell the employees to take a vote, nor was
he ever informed that a vote was taken at the meeting.
However, it is clear that he set in motion the action of
the employees by telling the employees to think it over,
and it is reasonable for Cordasco to have assumed that
29 I red Snow. iarold Snow and Tom Snow d/b/a Snow Sons. 134
NLRB 709 (1961): Tonys Sanitation Service. Inc. S. James Sanitation Co,-
poraion. 203 NLRB 832 (1973); Idaho Pacific Steel Warehouse Co.. Inc..
227 NLRB 331 (1976): Adams Book Company. Inc., 203 NLRB 761. 768
(1973).
30 Sullivan Electric Company. supra. Nationwide Plastics Co.. Inc.. 197
Nl.RB 996 (1972).
:" See A.tlantic Technical Services Corporation. 202 NLRB 169 (1973).
2 Sullivan Electric Company supra.
239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees in considering his offer would take some
kind of vote on his proposals. The employees did in fact
take a vote by raising their hands, and unanimously
voted for Local 355. Muziani, in the presence of all the
other employees, then informed Cordasco that the em-
ployees had decided to go with Local 355 (in effect re-
jecting Cordasco's suggestion to form an in-house union,
and thereby have their grievance resolved and receive
better benefits.) In these circumstances, I find that Re-
spondent is bound by the results of the employees' action
in taking a vote at the meeting, just as if Cordasco were
present while the vote was being taken. In any event,
there can be no question that, as a consequence of Cor-
dasco being informed of the employees' decision to stay
with Local 355, he was certainly satisfied that the Union
represented a majority of his employees at that time.
Thus as in Sullivan Electric, supra, and Snow & Sons,
supra, Respondent has undertaken a determination which
he could have insisted be made by the Board, and he
may not thereafter repudiate the route that he himself
had selected.
Respondent makes an additional argument in defense
of its alleged obligation to bargain, that the union repre-
sentatives by suggesting that Cordasco meet with the
employees, and pressing him to do so, even where he re-
quested a lawyer and an election, thereby enticed him
into conducting the meeting, and that Cordasco was un-
aware that his meeting with employees could result in
the loss of his right to demand an election.
The Board and the courts have considered these kinds
of contentions in similar situations, and have rejected
such defenses. In Harding Glass Industries, Inc., etc., 216
NLRB 331 (1975), the Board rejected an employer's con-
tention that it's expressed desire to consult an attorney
before recognizing the Union is a defense to his breach
of an agreement that he had entered into to recognize
the Union based on the results of a card check.
The Eighth Circuit Court of Appeals, in affirming the
Board on this issue, while reversing on other grounds,
quoted with approval, the Ninth Circuit Court of Ap-
peals opinion affirming Snow & Sons, supra, which held:
Nor is it important whether an employer appreci-
ates in advance that a card count may provide in-
formation which will undermine his right to insist
on a Board election Fred Snow, Harold Snow, and
Tom Snow, d/b/a Snow & Sons v. N.L.R.B., 308
F.2d 687, 692 (9th Cir. 1962).
The Eighth Circuit opinion in agreeing with the above
analysis made the observation which is particularly appli-
cable herein:
The verification procedure approved by the em-
ployer gives that employer accurate information,
but the employer need not appreciate in advance
the obligations that may arise from knowledge so
gained. Harding Glass Industries Inc. v. N.L.R.B.,
533 F.2d 1065, 1069 (8th Cir. 1976).
In Idaho Pacific Steel Warehouse Co., Inc., supra, the
Board rejected an employer's defense that it did not un-
derstand the implications of a card check, and that it did
not intend to create a binding obligation by assenting to
such a check, by citing Snow & Sons and Harding Glass,
Industries, Inc., supra.
Accordingly, I conclude that Cordasco's possible
belief that he would still be entitled to an election, not-
withstanding his agreement to the Union's proposal of
granting recognition if he satisfied himself of the Union's
majority, does not serve as a defense to Respondent's ob-
ligation to bargain. Cordasco voluntarily3 3 agreed to the
Union's suggestion and utilized his method in ascertain-
ing and assuring himself that a substantial majority of his
employees had designated the Union as their representa-
tive. These circumstances give rise to a bargaining obli-
gation. Sullivan Electric, supra at 810.
I therefore find that Respondent violated Section
8(a)(1) and (5) of the Act by refusing to recognize and
bargain with the Union on and after February 28.
The complaint also alleges that Respondent has en-
gaged in unfair labor practices precluding the holding of
a fair election among the employees in the unit herein.
During the course of the hearing and in his brief, the
General Counsel withdrew certain of the allegations in
the complaint which formed part of the basis for the
contention that a fair election could not be held due to
Respondent's unfair labor practices. The complaint alle-
gations withdrawn were the paragraph alleging an
8(a)(3) violation as well as the paragraph alleging a
threat to close the plant. Since these withdrawn allega-
tions are the types of unfair labor practices generally
considered sufficiently serious to preclude a free and fair
election, and the General Counsel made no mention in
his brief that he was still alleging this alternate theory
justifying a bargaining order, it appears that the General
Counsel has now abandoned such a contention. In any
event, in view of my conclusions set forth above that
Respondent by its conduct on February 28 obligated
itself to bargain with the Union, I need not and do not
decide whether the independent 8(a)(l) violations that
Respondent committed were sufficient to preclude the
existence of a free and fair election, as alleged in the
complaint.
CONCLUSIONS OF LAW
1. 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.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing on and after February 28, 1980, to rec-
ognize and bargain collectively with Amalgamated Local
3 Respondent's attempt to portray Cordasco as an inexperienced
novice in labor relations being taken in by the allegedly sharp and decep-
tive practices of the union representatives is not supported by the record.
In his meeting with the employees, Cordasco was familiar enough with
labor relations to suggest formation of an in-house union, and to carefully
phrase his implied promise of benefit in terms of "things can change."
These remarks do not suggest the innocence in these matters that Re-
spondent suggests in Cordasco's behavior. I find that Cordasco was fully
aware of the fact that he committed himself to grant recognition to the
Union, if he satisfied himself of the Union's majority status, but that he
was confident that he could persuade the employees (by unlawful means
as I have found above) to reject or revoke their action in designating the
Union as their representative.
240
GREGORY CHEVROLET
Union 355, herein called Local 355, as the exclusive bar-
gaining representative of its employees in the appropriate
unit set forth below, Respondent has engaged in and is
engaging in unfair labor practices in violation of Section
8(a)(l) and (5) of the Act. The appropriate unit is:
All full-time and regular part-time service and main-
tenance employees employed by Respondent at its
East Orange, New Jersey, facility including all me-
chanics, service writers, porters, and body and parts
shop employees, but excluding all office clerical em-
ployees, salesmen, professional employees, guards
and supervisors as defined in the Act.
4. By interrogating its employees concerning their ac-
tivities on behalf of, support for, and concerning their
reasons for continuing to support Local 355, Respondent
has violated Section 8(a)(1) of the Act.
5. By soliciting grievances from its employees con-
cerning their working conditions, and holding out the
prospect of remedial action, for the purpose of undermin-
ing the employees' support of Local 355, Respondent has
violated Section 8(a)(1) of the Act.
6. By suggesting and encouraging its employees to
start or form an in-house union, instead of continuing
their support and activities on behalf of Local 355, and
by promising its employees better benefits and improve-
ments in their terms and conditions of employment if
they chose to be represented by an in-house union and
abandon their support for Local 355, Respondent has
violated Section 8(a)(1) of the Act.
7. Respondent has not violated the Act as alleged in
the complaint, by its actions in locking its main gate on
March 5, 1980.
8. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease-and-desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent on and after February
28, 1980, has failed and refused to recognize and bargain
with the Union in violation of Section 8(a)(l) and (5) of
the Act, it will be recommended that Respondent, upon
request, be ordered to recognize and bargain with the
Union as the exclusive bargaining agent of its employees
and, if an understanding is reached, embody same in a
written signed agreement.
Upon the foregoing findings of fact, and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER3 4
The Respondent, Gregory Chevrolet, Inc., East
Orange, New Jersey, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Amalgamated Local Union 355, herein called Local 355,
as the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All full-time and regular part-time service and main-
tenance employees employed by Respondent at its
East Orange, New Jersey, facility including all me-
chanics, service writers, porters, and body and parts
shop employees, but excluding all office clerical em-
ployees, salesmen, professional employees, guards
and supervisors as defined in the Act.
(b) Interrogating its employees concerning their activi-
ties on behalf of, support for, or concerning their reasons
for continuing to support Local 355.
(c) Soliciting grievances from its employees concern-
ing their working conditions, and holding out the pros-
pect of remedial action, for the purpose of undermining
the employees' support of Local 355.
(d) Suggesting and encouraging its employees to start
or form an in-house union instead of continuing their
support and activities on behalf of Local 355, or promis-
ing its employees better benefits and improvements in
their terms and conditions of employment if they chose
to be represented by an in-house union, and abandon
their support for Local 355.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith
with Local 355 as the exclusive bargaining representative
of the employees in the appropriate unit found above,
with respect to wages, rates of pay, hours of employ-
ment, and other terms and conditions of employment
and, if an understanding is reached, embody such under-
standing in a signed written agreement.
(b) Post at its place of business in East Orange, New
Jersey, copies of the attached notice marked "Appen-
dix." 3 5 Copies of said notice, on forms provided by the
Regional Director for Region 22, after being duly signed
by Respondent's representative, shall be posted immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
34 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 fior all purposes
a1t 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that the said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS AlSO ORDIRItI) that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
242