Heinrich Motors, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1965

153 N.L.R.B. 1575 (N.L.R.B. 1965)

HEINRICH MOTORS, INC. 1575
APPENDIX B
Rank-and-file-employees of Worcester Stamped Metal Company present on picket
line at Hunt Street enrance, June 12, 1964, 7:15 a.m.
Donathan Giguilliat Tom Rossio Gene Basili
(Bob Ginlat) *Richard Maynard Frank Paduano
*Michael Corbett *Adam Michelonis Robert Jodom
*Raymond Brouillette Paul Catterson Andrew Sprogna
John Naum John Elusiano (Luciaro) Homer Lajoie
*Derry Elliot Pete Sawicki Emilio (Chico) Viscardi
Earl Dorsey Pasquale (Patsy) Charles Fagan
*William Capers Bowento
Rank-and-file employees of American Emblem Company present on picket line at
same place and tune:
*Charles Pusek *Louis Iacovoni *Hugh Rankin
Paul Henderson Roger Pollisack
*Indicates employees present on picket line at Hecla Street entrance the same
morning.
APPENDIX C
NOTICE
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify all our members, officers, representatives,
and agents and all employees of Worcester Stamped Metal Company that:
WE WILL NOT restrain or coerce the employees of Worcester Stamped Metal
Company by blocking or trying to block the movement of trucks, cars, or people
into or out of the plant, by harming or threatening to harm employees because
they cross the picket line, by assaulting or threatening to assault supervisors or
officials, or by damaging or trying to damage property.
WE WILL NOT in any other manner coerce or restrain employees of the above-
named company in the exercise of their rights under the National Labor Rela-
tions Act, as amended.
LOCAL 2118, UNITED STEELWORKERS OF AMERICA, AFL-CIO,
Labor Organization.
(Representative) (Title)
Dated------------------- By -------------------------------------------
UNITED STEELWORKERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston , Massachusetts, Tele-
phone No. 523-8100.
Heinrich Motors, Inc. and International Union , United Automo-
bile, Aerospace and Agricultural Implement Workers of Amer-
ica, AFL-CIO. Case No. 3-CA-2334. July 23, 1965
DECISION AND ORDER
On February 26,1965, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respondent
153 NLRB No. 139.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent and the General Counsel filed excep-
tions to the Decision together with supporting briefs. The General
Counsel also filed an answering brief to Respondent's exceptions.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified below.
1. We find, as did the Trial Examiner, that the Respondent violated
Section 8 (a) (1) of the Act by the following conduct : (a) Shop Fore-
man D'Amico's statement on November 26, 1963, to Edward Knaak
during the first organizational drive that if the Union came in "every-
body would make the same.... If you were a fast man, you would have
to wait for a slow man.... Every man would take home equal pay."
This statment contained a warning that the employee would no longer
be allowed to earn higher pay than other employees; 2 (b) Supervisor
Lawler's warning to Speary in February 1964 "to be careful" or he
might lose his job if he persisted in such permitted concerted activity
as interceding with the employer in behalf of a discharged employee;
(c) Manager David Heinrich's statement to Rene Lombardo in April
1964 that management did not want him to talk about union affairs or
to pass out union cards at the shop, inasmuch as Heinrich's order was
sufficiently broad to prohibit union solicitation on the premises during
nonworking time and to prohibit distribution of cards in nonworking
areas during nonworking time, it was clearly invalid and coercive;
(d) Supervisor Facciponti's interrogation in December 1963 of Harry
Speary in the course of which he said, "Harry, I hope you know what
you are doing .... I don't know what you hope to gain by this Union.
If you are out for big raises or things like that, I don't believe that you
can get them"; (e) Supervisor White's interrogation of Anthony Cira
the night before Cira's layoff as to whether he had signed a union card;
and (f) Supervisor (or agent) Lawler's interrogation of Andrew Patti
'The Respondent 's request for oral argument is hereby denied, as the record , including
the exceptions and briefs , adequately present the issues and positions of the parties.
2James Hotel Company, a Corporation, d/b/a Skirvin Hotel and Skirvin Tower, 142
NLRB 761.
B Stoddard-Quirk Manufacturing Co., 138 NLRB 615; Rowe Industries , Inc., 152
NLRB 70.
HEINRICH MOTORS, INC. 1577
before December 21, 1963, of "what was going on" and "what did the
men think if this Union came in, would they gain anything by it or will
they lose by it?"
2. We find, in agreement with the Trial Examiner, that the Respond-
ent on April 1S, 1964, discontinued the night shift of its service depart-
ment and terminated the employment of nine employees of that depart-
ment in order to eliminate from its employ Harry Speary, an employee
leading the organization drive, as well as other members of the Union,
thereby discouraging union activities of its employees, all in violation
of Section 8 (a) (3) and (1 ) of the Act.
Night shift of the service department : The night shift of the service
department was established in July 1961 after "the Chevrolet people
let it be known" that they wanted Respondent to open the service
department at night. Although the request was opposed by the
Respondent's general manager on the ground that it had been tried
before and found unsuccessful, the Respondent eventually agreed to
it. Originally the night shift was established to service trucks as an
accommodation for truck purchasers. Later Respondent began get-
ting night repair business from other dealers. Certain problems in
connection with the night-shift operations arose at once. One prob-
lem was the inability of the night servicemen to comprehend the extent
of the factory warranty with the result that the cost of some of the
repairs was not reimbursed by General Motors. Other problems were
the lack of credit-checking facilities at night, the difficulty in finding
competent mechanics for work at night, the theft of cars and equip-
ment, etc. Despite these problems, the night operation was continued
for almost 3 years until suddenly terminated on April 18, 1964.
Organizational activities-Harry Speary's part in such activities :
The organizational activities on behalf of the Union in the service
department began in November 1963. From the first union meeting
on November 21, mechanic Harry Speary had led the drive. He solic-
ited employees' membership in the Union and arranged for meetings
at the homes of various employees. His leading role in the campaign
was well known to the Respondent. For reasons not clearly appearing
in the record, in December Speary came to the conclusion that it would
be advisable to abandon the organizational drive if the employees could
secure management's assurances that there would be no reprisals. A
meeting between Speary, his group, and management was arranged.
At this meeting Speary told President Heinrich that the employees
would be willing to give him "a second chance" if he could "forgive and
forget."' Heinrich gave that assurance. A meeting of the service
department employees was then called on the company's premises.
Speary informed the assembled employees that Heinrich had given
his assurance that there would be no reprisals against the employees
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who participated in the drive, and urged them to give Heinrich a "sec-
ond chance" by voting against the Union in the forthcoming election.
The next day Speary discussed the matter of the election with Union
Organizer Natchuras, and on December 24 the Union withdrew its
representation petition.
In January 1964 the Respondent called its first meeting of the man-
agement-employee group to air employees' grievances. Speary took
a prominent part at the meeting. In February, Speary interceded in
behalf of discharged employee Brown and urged Heinrich to reinstate
Brown. He told Heinrich that, if there were a union in the shop, the
union would get Brown a second chance. Speary's intercession in
behalf of Brown angered Heinrich. Heinrich told Speary that they
did not have a union, but that Speary was acting like a shop steward.
Heinrich ended the conversation by telling Speary that he would "con-
sider" Brown's case. The next morning Supervisor Lawler told
Speary that Speary had made Heinrich angry and warned him "to be
careful" or he might lose his job. About the same time, Speary sug-
gested to Heinrich a change in the procedure set up by management
for airing employees' grievances. Heinrich rejected this suggestion.
Dissatisfied by this time with the conditions at the shop, Speary, at
the end of March 1964, contacted the Union again. On April 10 a
meeting was held at the union hall. On April 11, and again on
April 14, Speary arranged other meetings at the homes of employees.
Altogether, Speary secured from 12 to 14 signed union cards. Em-
ployee Knaak obtained one signed union card. Again Speary's part in
the renewed drive became well known to the Respondent. Heinrich
admitted he had learned that Speary "was working to organize again,"
and that the employees "were back into kind of the same state of con-
fusion that they had been previously." On April 16 Heinrich, ob-
viously concerned with the drive, called a meeting of employees of the
service and parts departments. At this meeting Heinrich stated that
lie was "aware" that a "small secret group" was circulating union cards
and soliciting employees "behind their backs," and that the apparent
purpose of the drive was to seek "representation without an election."
He told the meeting that some of these men were standing in the room
and that they were working to the "detriment of Heinrich Motors."
Heinrich characterized the organizational drive as "dishonorable" and
assured the employees that Respondent "intends to fight this just as
strongly as [it] can."
Closing of the night shift and the layoff; Respondent's explanation:
On April 17, the day after Heinrich's threat to fight the Union as
strongly as he could, the Respondent made a sudden decision to discon-
tinue the night shift and to lay off nine employees in the service depart-
ment. On April 18 this decision was carried out. The Respondent
contends that it discontinued the night shift for economic reasons.
HEINRICH MOTORS, INC. 1579
Heinrich testified that, although for some time he had suspected that
the night shift had been operating at a loss, nothing definite was done
about it until April 17. On that day, he, his brother David, and Gen-
eral Manager Lawler reviewed the financial report for the first quarter
of 1964 which showed a deficit for the service department of about
$18,000. As the statement contained no breakdown between the day
and night operations, an office girl was instructed to ascertain the total
gross receipts of the night shift for the first quarter of 1964. From this
figure Respondent deducted the salaries of the night supervisors and
the direct expenses in connection with the night shift, and thus arrived
at an "indication" that the night shift had been operating at a loss.
Having further considered various problems connected with the run-
ning of the night shift that had never been satisfactorily solved,
Respondent reached the decision to close the night shift the next day,
April 18. The same evening the Respondent also decided , rather than
to lay off all night-shift employees whose jobs were being eliminated,
to select for layoff employees from both the day and night shifts on the
basis of their alleged productivity. After the average weekly earn-
ings of the employees had been ascertained , the Respondent, on
April 18 and the next few clays laid off five night-shift employees and
four day-shift employees.
Inadequacy of Respondent 's explanation for discontinuance of the
night shift; the layoff : The question remaining is whether, in view of
a prima facie case of discriminatory motivation , evidenced by Respond-
ent's union animus and the timing of the discontinuance of the night
shift with respect to the Union's renewed organizational campaign,
the Respondent's explanation for the discontinuance of the night shift
and the layoff is adequate. As did the Trial Examiner, we find the
explanation not convincing.
The 1964 financial statement showing a deficit in the operation of the
service department revealed nothing that the Respondent either did not
know or did not have good reason to suspect. Heinrich testified that
the former general manager told him "long ago" that the night shift
was "a losing proposition."' Also for "a considerable period of time"
the night service manager had informed him that the night shift was
losing money . There had been no sudden and adverse recent change in
the operation of the night service department. For about a year before
the closing , the night shift "had gone along at a fairly constant level."
Heinrich also testified that in April 1964 "the business was good," sales
were up, and plenty of business was available . Nor was the 1964 finan-
cial statement showing a deficit of about $18,000 for the service depart-
ment as "alarming" as Heinrich indicated in his testimony. The 1964
statement had been prepared on a new accounting basis with indirect
expenses of the Company apportioned among its four departments. It
therefore offered no common yardstick for comparison with the 1963
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 1962 financial statements. Heinrich conceded that he did not know
whether, if Respondent had used the same accounting system as in
prior years, the 1964 statement would have shown a profit or what the
profit would have been.4
But even assuming that on April 17, 1964, the Respondent for the
first time had definitely established that the night shift had been oper-
ating at a loss, it does not follow that such a discovery would have
necessarily prompted the Respondent summarily to close down the
night shift. Heinrich knew that the day shift had also been operating
at a loss. Yet it apparently has no thought to discontinue this shift
operation. As a matter of fact, the Respondent derived important
advantages from the night service department which tended to mini-
mize the disadvantage of running it at a loss. Thus, the night shift
provided for convenient night servicing of trucks purchased from the
Respondent, approximately 300 of them annually, as well as for night
servicing of cars of customers who were busy during the day. Other
Chevrolet dealers in the city of Rochester who did not have a night
service department referred their customers to the Respondent for
night repair. Finally, it helped the Respondent to maintain the good
will of the Chevrolet Division of General Motors, which was anxious
to have night service available in the city at one of its agencies.
Similarly, we are not convinced that the various problems inherent
in the night-shift operation significantly entered into the decision to
close the night shift. Most of these problems had existed from the
inception of the shift 3 years earlier. There is no evidence that they
had suddenly grown worse.
Finally, we are convinced that the suddenness of the decision to close
the night shift, and the speed with which it was implemented can be
explained only by the Respondent's extreme concern for the renewed
organizational drive. This concern was clearly revealed in Heinrich's
April 16 speech to the employees.
Selection Of employees for the layoff and result accomplished: The
formula based on the average weekly earnings, allegedly used by the
Respondent for selecting employees for the layoff, was not uniformly
applied. Employees MacDuffie and Nix Bruininx, whose average
earnings were less than those of Harry Speary, were retained, whereas
Speary, who has been with the Respondent for 7 years and was
assigned the poorly paid "zero work," was laid off. The application of
the formula also produced an extraordinary result. Of the nine laid-
off employees, six (Speary, Knaak, Goodman, Cira, Thompson, and
4 The 1964 statement shows that the service department has been charged with the
following items (indirect expenses) absent in the 1963 statement: Taxes (other than real
estate and income)-$12,211.58, salaries to owners-$2,342.70, insurance (other than
building and improvements)-$2,215.14, legal and auditing expenses-$1,235 75. Had
these items been charged to the operations of the service department in the 1963 state-
ment, it would have shown, in lieu of a profit of $9,552, a loss of $8,453.17.
HEINRICH MOTORS, INC. 1581
Moldoch) had signed union cards.5 They were permanently termi-
nated. Of the remaining three who did not sign union cards, two,
DeVries and Deisenroth, were known by the Respondent to be going
into military service. The third, Zimmer, at the time of the layoff had
a full-time day job with the city of Rochester and was assumed to be
unavailable for the day shift. However, 10 days later, after a vacancy
occurred and Zimmer made arrangements to perform his city job at
night, Zimmer was reinstated by the Respondent as a greaser during
the day. Thus, the layoff has materially affected only six employees,
and these were union adherents.
With the layoff of 6 union members out of 14 or 15 employees who
had signed union cards, the terminations on April 18 eleminated a dis-
proportionate percentage of card signers in a department which num-
bered approximately 29 employees. This disproportion is itself evi-
dence of discriminatory motivation.6
For all of the foregoing reasons, we reject the Respondent's conten-
tion that the discontinuance of the night shift of its service department
and the permanent terminations of the nine employees here involved on
April 18 and the next few days were motivated solely by economic con-
siderations. We are convinced that the reason advanced by the
Respondent for its action is a pretext and that the real reason for the
shutdown of the night shift and the layoff was to eliminate from its
employ the leader of the organizational drive, Harry Speary, as well as
other union members, and thus discourage its employees from continu-
ing the union organizational campaign, in violation of Section 8 (a) (3)
and (1) of the Act.
REMEDY
Having found that the Respondent engaged in unfair labor prac-
tices, we shall order that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully discriminated in
regard to the hire and tenure of employment of the employees named
in the Order by discharging them on April 18, 1964, we shall order
that the Respondent offer them immediate and full reinstatement to
their former, or substantially equivalent positions, without prejudice
5 That the Respondent had knowledge of union membership or activities of the six
discriminatees was admitted with respect to some of them and could , under the circum-
stances , reasonably be inferred with respect to the others . All six discrimmatees, ex-
cept Thompson , had signed union cards both during the original and renewed drives
Heinrich admitted that between April 12 and 17 he received information about organiza-
tional activities "on the part of some of the employees ," that he might have been told of
specific meetings held by employees , and that he had received a corroboration of the
renewed activities from Goodman . At the April 16 meeting Heinrich admittedly rec-
ognized some of the members of the secret group standing in the room. Considering fur-
ther that the Respondent had engaged in rather extensive interrogation of employees
during both union campaigns , we find that the Respondent at the time of the layoff knew
that the six discriminatees had signed union cards.
6 Syracuse Tank & Manufacturing Company, Inc ., 133 NLRB 513 , 525 and the cases
.cited therein.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to their seniority or other rights and privileges, and make them whole
for any loss they may have suffered by reason of said discrimination to
the date of reinstatement, less their net earnings during such period in
accordance with the formula set forth in F. TV. TVooi2vorth Company,
90 NLRB 289, with interest thereof at 6 percent per annum to be com-
puted in the manner set forth in Isis Plumbing di Heating Co., 138
NLRB 716. Reinstatement shall be to the positions on the day shift,
or, at the Respondent's option, by resumption of the nightwork, on the
night shift.?
In view of the fact that the unfair labor practices committed are of
a character striking at the roots of employee rights guaranteed by the
Act, we shall order that the Respondent cease and desist from infring-
ing in any manner upon the rights guaranteed in Section 7 of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Heinrich Motors, Inc., Rochester, New York, its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in, or activities on behalf of, Inter-
national Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO, by discharging any of its
employees or by discriminating against any such employee in any other
manner in regard to their hire and tenure of employment, or any term
or condition of employment.
(b) Interrogating employees as to their own or other employees'
membership in the Union, or their union sympathies or activities in a
manner constituting interference, restraint, and coercion within the
meaning of Section 8 (a) (1) of the Act.
(c) Promulgating or applying any rule prohibiting union solicita-
tion in nonworking time or the distribution of union literature in non-
working areas of its plant on nonworking time.
(d) Threatening employees with loss of jobs or economic reprisals
if they persist in concerted or union activities.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist International Union, United
Automobile, Aerospace and Agricultural Implement Workers of
America, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such
7 Square Binding and Ruling Co., Inc., 146 NLRB 206, 222; M Swack Iron and Steel Co.,
146 NLRB 1068, 1069-1070.
HEINRICH MOTORS, INC. 1583
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment, as authorized by Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Offer to each of the employees named below immediate rein-
statement to his previous, or substantially equivalent position, and
make him whole for any loss of earnings he may have suffered by rea-
son of the discrimination against him, in the manner set forth in this
Decision in the section entitled "The Remedy": Harry Speary, Edward
Knaak, Terrence Goodman, Anthony Cira, John Thompson, Jacob
DeVries, Thomas Deisenroth, George Zimmer, and Joseph Moldock.
(b) Notify the said employees if they are serving in the Armed
Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Post on its premises in Rochester, New York, copies of the
attached notice marked "Appendix A." 8 Copies of said notice, to be
furnished by the Regional Director for Region 3, shall, upon being
duly signed by Respondent's representative, be posted immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 3, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words " a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order".
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL offer the employees named below reinstatement to
their former, or substantially equivalent positions, without preju-
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dice to their seniority or other rights and privileges , and we will
make them whole for any loss of pay they may have suffered by
reason of the discrimination practiced against them as a result
of their layoff or discharge.
Harry Speary Anthony Cira Thomas Deisenroth
Edward Knaak John Thompson George Zimmer
Terrence Goodman Jacob DeVries Joseph Moldock
WE WILL NOT discourage membership in International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, or in any other labor organiza-
tion by laying off or discharging employees, or by discriminating
in any other manner in regard to their hire or tenure of employ-
ment, or any term or condition of employment.
WE WILL NOT interrogate employees as to their own or other
employees ' membership in the Union , or their union sympathies
or activities in a manner constituting interference , restraint, and
coercion within the meaning of Section 8 ( a) (1) of the Act.
WE WILL NOT promulgate or apply any rule prohibiting union
solicitation on nonworking time, or the distribution of union lit-
erature in nonworking areas of the plant or on nonworking time.
WE WILL NOT threaten employees with loss of jobs or economic
reprisals if they persisted in concerted or union activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self - organi-
zation, to form labor organizations , to join or assist International
Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO, or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing , and to engage in any other concerted activities for
the purposes of collecting bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized in Section 8(a) (3) of the Act, as amended.
All our employees are free to become, remain , or to refrain from
becoming , or remaining members of the above -named or in any other
labor organization.
HEINRICH MOTORS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employees presently serv-
ing in the Armed Forces of the United States of their right to full
HEINRICH MOTORS, INC. 1585
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of 1948,
as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting , and must not be altered , defaced, or covered by any
other material.
Employees may communicate directly with the Board 's Regional
Office, Fourth Floor, The 120 Building , 120 Delaware Avenue, Buf-
falo, New York, Telephone No. TL 6-1782, if they have any question
concerning this notice or compliance with its provisions.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon charges and amended charges filed on April 20 , 22, May 26, and June 4,
1964, by International Union , United Automobile , Aerospace and Agricultural Imple-
ment Workers of America , AFL-CIO, herein called the Union or Charging Party,
the General Counsel of the National Labor Relations Board, by the Regional Director
for Region 3 (Buffalo, New York), issued its complaint, dated July 27, 1964 , against
Heinrich Motors , Inc., hereinafter referred to as the Respondent The complaint
alleged that Respondent had engaged in and was engaging in unfair labor practices in
violation of Sections 8(a)(1) and (3) and 2 (6) and ( 7) of the Act . Respondent
duly filed an answer in which it admitted certain allegations of the complaint but
denied the commission of any unfair labor practices.
Pursuant to notice , a hearing was held before Trial Examiner Thomas S. Wilson at
Rochester , New York, from August 10 through 14 , 1964 All parties appeared at
the hearing and were given full opportunity to examine and cross -examine witnesses,
to introduce relevant evidence , to argue orally after the presentation of the evidence,
and to file briefs . Oral argument was waived Briefs were received from Respondent
and General Counsel on September 25, 1964.
Upon the entire record in the case,1 and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Heinrich Motors, Inc., is, and has been at all times material herein, a corporation
duly organized under, and existing by virtue of, the laws of the State of New York.
At all times material herein, Respondent has maintained its principal office and place
of business at 214 Lake Avenue, in the City of Rochester, and State of New York,
herein called Respondent's premises, and is, and has been at all times material herein,
engaged at said premises and location in the retail and wholesale distribution and
iepair of automobiles and trucks. During the year 1963, Respondent, in the course
and conduct of its retail business operations, sold and distributed products, the gross
value of which exceeded $500,000. During the same period of time, Respondent
received goods valued in excess of $500,000 transported to its place of business in
interstate commerce directly from States of the United States other than the State of
New York.
The complaint alleged, Respondent's answer admitted, and I find that Respondent
is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, is a labor organization admitting to membership
employees of Respondent.
'On September 30, 1964, General Counsel filed a motion to correct the transcript
Subsequently, Respondent filed a motion partially in opposition Except as noted in
footnotes infra Respondent's motion is granted
796-027-66-v of 153 101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The facts
In October or November 1963, a number of mechanics employed in Respondent's
service department began talking and considering union organization.
On November 21 employee Harry Speary and about 15 others of Respondent's
employees, including Edward Knaak, Terrence Goodman , and apprentice Joseph
Moldock, attended a union meeting at the Union hall in Rochester where Speary,
among others , executed a union authorization and application card. Goodman and
Moldock executed similar cards on November 26 and Knaak on November 29.
Although this was intended to be a secret organizational drive, it was not long
before the fact was known to Respondent , for on or about November 26, Shop Fore-
man Joseph D'Amico, admittedly a supervisor , took occasion to tell mechanic Knaak
that "you know if the Union ever got in here, everybody would make the same. If
you were a fast man, you would have to wait for a slow man to catch up with you.
Every man would be equal . Eveiy man would take home the same pay every week." 2
On November 29 Knaak himself signed a union authorization and application card.
On December 9, 1963, the Union wrote Respondent claiming majority representa-
tion among Respondent 's employees and requesting recognition . On December 10
it filed a representation petition with the Board. As a result of this petition Respondent
and the Union entered into a consent -election agreement providing for an election to
be held on December 27.
Between December 10 and 21 , Service Manager Joseph Facciponti drove a cus-
tomer 's car by the garage stall being used by Speary , who was doing "zero" work:
i.e., locating and repairing squeaks, rattles , and water leaks. There Facciponti told
Speary that he wanted Speary to help him locate a rattle in the customer's car, had
Speary join him in the car and drove out of the garage. As soon as they were out of
the garage , Facciponti admitted that the car did not have a rattle and that Facciponti
merely wanted to talk to Speary . At the beginning of the conversation Facciponti
said, "Harry , I hope you know what you are doing . I don't know what you hope to
gain by this Union. If you were out for big pay raises or things like that, I don't
believe that you can get them." To this Speary answered, "Joe, I made up my mind
and I 'm not going to change it." Thereafter for approximately an hour Facciponti
kept asking Speary what he hoped to gain by this Union and what the Union could
offer him. After about an hour of such questioning with Speary remaining very
reticent, Facciponti drove back to Respondent 's premises and Speary returned to
work.3
Subsequent to this conversation but still before December 21, Assistant Service
Manager Willard Huss spoke to Speary about quitting time and said , "Harry, I can't
believe you [it], that this is true, that you are really in with this Union." 4 After
Speary refused to say yes or no to that statement , the men got into an argument on
wages and hours and particularly over the wages being paid to a certain truckdriver
When Speary remarked that the Union could do so much for this employee, Huss
answer, "Well I don't think so." 5
Also about mid -December Huss inquired of mechanic Terrence Goodman if Good-
man knew anything about the Union. At this time, and again in April 1964, Good-
man informed Respondent that due to his religion he could not join the Union.
Goodman also offered whatever help he could to the Respondent.6
2 D'Amico was not called as a witness and, therefore , Knaak's testimony , above, was
uncontradicted in this record.
2 Respondent did not call Facciponti as a witness and so Speary ' s testimony , as found
above , remained uncontroverted
4 In his motion to correct the record General Counsel moved to correct the record as
noted within the brackets above Respondent objected Although believing this matter
to be of little or no significance , my memory agrees with the General Counsel's motion
and, consequently , the motion is allowed.
s Respondent failed to call Huss as a witness so this testimony remained undenied
6 Actually Goodman signed union authorization cards both in November and again in
April, 1964
Although undenied , Goodman ' s testimony was extremely vague and is cited here largely
to indicate the Respondent ' s inquiries about the Union were widespread
HEINRICH MOTORS, INC. 1587
Also before December 21 7 Robert Lawler, then manager of Carent,8 spoke to
mechanic Andrew Patti at Patti's working place , asking what Patti thought of "what
was going on" and "what did the men think if this Union came in? Would they gain
anything by it or will they lose by itT" Patti answered that what he thought personally
was immaterial but that the men were "pretty well peeved up" about wages and
working conditions in the shop a Patti refused to further disclose his own interest in
the Union although he had before that time signed a union authorization card.
Prior to December 21, Lawler had told mechanic Louis Bowen 10 that Respondent
would rather not have a union in the shop. Bowen , who was one of the higher wage
earners among the mechanics and who had not signed a union card, argued with
Speary against bringing in the Union on the ground that the men ought to give
Heinrich a "second chance " and than Jon Heinrich would "forgive and forget" the
episode and there would be no retaliation for the men 's efforts.
Finally on the morning of December 21 Respondent 's efforts bore fruit in that
Speary, after consulting with some of his union-minded friends like Rightmyer,
Knaak, and Goodman , decided that perhaps he was leading the other employees
astray and that it would be better to abandon the organizational attempt if Bowen's
report that Jon Heinrich was willing to "forgive and forget" was in fact true. Not
placing too much confidence in Bowen's report, Speary wanted Jon Heinrich 's personal
assurance that there would be no reprisals if the employees gave Heinrich "a second
chance" by abandoning the Union so Speary told Bowen that he was ready to meet
with Jon Heinrich . Bowen arranged the meeting.
About 11 a.m. on December 21 , employees Speary , Rightmyer , Phil Proeto, and
Louis Bowen met with Jonathan Heinrich, his brother David Heinrich , and Lawler
at which time Speary expressed a fear that the employees were following him "blindly"
and that the employees seemed to be willing to give Jon Heinrich a "second chance"
if they could be assured that Heinrich could "forgive and forget ." Jon Heinrich gave
that assurance . The discussion then turned to the question as to how best to notify
the employees . Lawler insisted that the election be held as scheduled on December 27
and that the election should result in an overwhelming vote of confidence for
Heinrich by defeating the Union badly. It was so agreed . With Respondent's
approval , Respondent 's loudspeaker system announced a meeting of all the employees
to be held in the used -car department at noon that day.
Speary, who had volunteered to notify the employees of this decision , spoke at that
time informing the employees of his own personal fears , assuring the men that Jon
Heinrich had agreed that there would be no reprisals and urging the men to vote
against the Union and thus give Heinrich "a second chance."
Speary reported these events at a union meeting on December 23. On December 24
the Union 's motion to withdraw the petition at Respondent 's plant was granted by
the Regional Director.
S The transcript shows the witness Patti placed the date of this conversation as about
a week "after" the Christmas party of that year which would place it about January 1,
1964. General Counsel moved to correct the void "after" to the word "before," thus
placing the conversation at or about the same period of time as the other conversations
recorded here . Respondent objected As the fist phase of the union activity died on
December 21 and as the conversation itself indicates that it occurred prior to the em-
ployees' decision of December 21 to desert the union effort , I am convinced that this con-
versation occurred before December 21 and therefore allow General Counsel's motion to
correct the record as aforesaid
8 Carent, a corporation separate from Respondent but owned by an estate of which
Jonathan Heinrich , Respondent 's president , was the ultimate beneficiary, opeiated its
business of renting automobiles and trucks on Respondent ' s premises where its automo-
biles were maintained and repaired Lawler and whatever other employees Carent might
have had were paid by Respondent Lawler attended management meetings of Respond-
ent and was a close confident of Jon Heinrich Prior to April 1964 , Lawler became
Respondent 's general manager Lawler's relationship to Jon Heinrich and Respondent,
and his actions throughout this period, proved Lawler to have been either a supervisor
or agent of Respondent.
'Lawler frankly acknowledged that he had talked to most of the employees about their
feelings towards the Union both in December and again in April He did not deny Patti's
testimony.
10 Frequently spelled "Bowfin " In the transcript.
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In January 1964, as promised,11 Respondent held its first meeting with 10 employ-
ees selected by Respondent for the purpose of hearing the gripes and grievances of
the employees. Jon Heinrich, David Heinrich, and Lawler were present on behalf of
Respondent. Speary was one of the employees invited to attend by Respondent. As
these meetings were purportedly for the purpose of having the employees inform
Heinrich of their gripes, grievances, and complaints, Speary spent a good portion
of the 21/2-hour meeting in expounding on the same 12
In discussing the possibilities of holding such meetings, Speary had suggested to
Jon Heinrich that the employees ought to have someone to represent them in present-
ing their grievances Jon Heinrich had objected that this would be "too much like a
union" and refused the request.
In late February Respondent discharged a carwasher named Jimmy Brown. The
day following the discharge Brown returned to Respondent's premises to try to secure
reinstatement. He spoke to Speary about his discharge. Speary offered to go with
Brown to see Jon Heinrich. When Brown proved inarticulate in meeting with Jon
Heinrich, Speary began pleading his case for him, reminding Heinrich that the men
had given him a "second chance," and that, if there were a union in the shop, he was
sure that the Union would get Brown a second chance Admittedly this reference to
the Union angered Jon Heinrich who promptly told Speary that there was no union
in the shop Heinrich did agree to reconsider the discharge and to let Brown know
the results later.
As Speary was leaving work about 5.30 p.m. that day, he met Jon Heinrich at the
timeclock where Heinrich told Speary, "Harry, you made me damn mad today. We
don't have a union in Heinrich Motors. You are acting like a shop steward. I don't
believe you have the right to do these things." After then spending about an hour
talking over wages, hours, and working conditions, Heinrich ended the conversation
by saying, "Well, I will consider your case "
The following morning Lawler came to Speaiy's stall where he told Speary that
Speary had made Jon Heinrich mad the day before and that "Harry, I think you
should be careful." Speary answered, "Bob, I know what you are trying to say You
are trying to tell me that if I don't be quiet, that I am going to lose my job." To this
Lawler replied, "Well, we do understand each othei " 13
Having become disenchanted with this "second chance," Speary got in touch with
the Union again at the end of March and arranged for a meeting to be held at the
union hall on April 10, 1964.
Sometime before April 8, Jon Heinrich received from an accounting firm a com-
pilation of comparative figures on various phases of the automobile dealership busi-
ness compiled from figures supplied by some 16 agencies located in various cities
throughout the United States. These figuies indicated a loss of over $9,000 in the
Respondent's service department for February 1964. This tabulation of comparative
figures pointed up some lather glaring weaknesses in other parts of Respondent's
operations.
This report showed that exactly half of the 16 dealers making reports were losing
money in their service departments Of those losing money Respondent's was by far
the largest.14
From April 8 through 10, 1964, Jon Heinrich was in San Francisco, California,
representing Respondent at a meeting of Chevrolet dealers The above-mentioned
report was carefully studied at that time.
On April 9, Lawler, by then Respondent's general manager, telephoned Heinrich
and informed him that Respondent's profit figures for the month of March had just
been compiled and were still bad.
On April 10 Speary and about seven other of Respondent's empolyees met at the
union hall where Speary and some others executed new union authorization cards
It was agreed to try another union organizational drive among Respondent's employees
and that this drive, like the November one, should not be brought to Respondent's
attention. On April 11 some of the employees met with Speary at the home of
mechanic Arthur Montgomery, who signed another card, and on April 12 at the
home of employee Goodman, who also executed a second card.
11 Just when Respondent made this promise is not disclosed in the record
13 Apparently one or two other such meetings were actually held Speary was never
reinvited
13 Respondent's brief notes that Jon Heinrich denied having ever told Lawler of his
anger at Speary However, Lawler did not deny his conversation with Speary which thus
stands undenied on the record
14 In 1964 Respondent had made a change in its accounting practices by prorating on
some undisclosed basis all indirect expenses of the business among the four separate de-
partments thereof How accurately this proration was made is anybody's guess
HEINRICH MOTORS, INC. 1589
On April 11 there was another telephone conversation between Jon Heinrich and
Lawler , when it was decided that they would meet on Sunday , April 12, to discuss
the situation.
As planned , the two Heinrichs and Lawler met on April 12 and discussed the
financial picture but apparently made no concrete decisions. The fact that the
employees were organizing again was brought to Jon Heinrich 's attention during this
meeting.
During the following week beginning on April 13, Jon Heinrich was too busy to
discuss the problems of the agency with Lawler , but he did learn that Respondent
was back in " the same state of confusion" over organizing as had been the case in
November and "assumed " that meetings were being held again . He specifically
learned that Speary "was working to organize again" and taking employees out to
the parking lot in order to sign union authorization cards. In fact, according to
Heinrich , Speary's was the only name mentioned whenever union activities were
mentioned.
About 5 p.m ., on Thursday , April 16, Jon Heinrich called a meeting for all parts
and service employees . In the presence of Lawler and his brother David , Heinrich
admittedly told the employees at this time.
We are aware that there is a small secret group circulating cards for the UAW.
Several of you have been asked or will be asked to sign one of these cards and
to pay $10 to the Union . A conclusion that we have drawn is that they may
be seeking representation without an election. Those of you that are being asked
to sign these cards should know this I want to stress that this is a secret cam-
paign being conducted by a small group, some of whom are standing in this
room.15 They are soliciting secretly behind our back. I feel that these people
are working to the detriment of Heinrich Motors It is a shame that during our
busiest season when we should all be working to improve our incomes that we
are again faced with this. I can assure you that we intend to fight this just as
strongly as we can. This is all I have to say.
In addition to the above -admitted speech, Heinrich acknowledged that he had char-
acterized this April organizing move as "dishonorable."
Sometime between 10 and 11.30 p.m. on April 17, Jon Heinrich gave orders to
the night shop foreman , Louis White, to have the employees on the night shift report
at 10 a in. the next morning at the office . Although the night foreman was not told
the purpose of the meeting at this time , Heinrich and Lawler had decided by this
time to close down the night shift in the service department According to Heinrich,
the discussion about the possibility of closing the night shift in the service depart-
ment began as Heinrich and Lawler were driving to a luncheon meeting that day
when Heinrich suddenly inquired , "what do you think of closing the night shift?"
This inquiry was followed by a discussion of "about a couple of minutes ." Between
3 and 5:30 p . m. they had about a "15 minute" discussion of the matter . Thereafter
the question was further discussed between 5:30 and dinnertime at 7.30 p in., during
which they examined the financial reports which were available but from which they
soon discovered "You can 't tell a thing" about the profit or loss of the night shift
because the financial records they had all considered the service department as a unit
without any breakdown between the day and night shifts. Recognizing the possi-
bility of union implications growing out of this move , Jon Heinrich sought the advice
of Attorney Truman Searles in several long telephone conversations . Originally
Searles refused to give any advice on the ground that Respondent was giving him
insufficient facts upon which to base an opinion . So either before or after dinner
Jon Heinrich had one of the office girls pull out the earning records of the evening-
shift employees which , as he testified , would give a "pretty good indication" of the
night sales due to the percentage of sales paid as wages to the mechanics . 16 When
Heinrich and Lawler returned to the plant after dinner, about 9:30 p.m., Lawler
brought an office girl with him who was then put to work getting more of these earn-
ings figures of the mechanics . Following further telephone conversations with
Attorneys Searles and Hoffberg, Jon Heinrich gave the order for the night employees
to appear for a 10 a in. meeting at the plant the following day.17 Sometime during
-' J,on Heinrich candidly admitted that he had Speary in mind during this reference
16 This record does not indicate whether the percentage paid as wages to the mechanics
included charges for both labor and parts or just labor charges As Respondent 's finan-
cial record set up the parts department as a separate entity , it seems a fair inference
that the percentage paid the mechanics was from labor only
14 Actually Jon Heinrich testified that the decision to close the night service depart-
ment was made about 5 30 or 6 .30 p in and hence , prior to dinner.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this evening it was decided that it would only be "fair" that Respondent should retain
only the more productive employees from each shift. With this determination the
day service department employees became involved in the layoff for the first time.
That, of course, brought the employment of mechanics Speary, Knaak, Goodman,
and apprentice mechanic Moldock into jeopardy as they all worked on the day shift
When White, an admitted supervisor, notified night mechanic Anthony Cira of
the 10 a.m. meeting, he also inquired whether Cira had signed a union authorization
card. Cira was noncommittal. White, Cira, and mechanic Legg met at a bar after
work that evening. During the conversation the union organizational effort was
mentioned. White suggested that with a union in the shop, the employees would
have to pay union dues, would have to get permission from him for anything they
did, would stand to lose a number of privileges which they then enjoyed, and would
have to put in full union hours in the shop regardless of the fact that there was no
work to be done, and "Jon gave them a lot of things they had asked for. They were
practically stabbing him in the back."
The meeting of April 18 was attended only by mechanics Arthur Montgomery and
Legg Jon Heinrich informed them that he was closing down the night shift because
it was "not making enough money" and inquired whether they would want to work
on the day shift. Both agreed . Heinrich then told them to report back Monday at
10 a.m. and he would be able to tell them if they had a job.
At the same time as the meeting, night mechanic Ernest Bruinix telephoned, was
told that the night shift was being discontinued, and was asked if he wanted to work
daytimes. He agreed and also informed Heinrich that his brother Nick, apprentice
mechanic on the night shift, would also desire to work days. Heinrich told Bruinix
to report on Monday when the employees would be told if they had jobs. Subse-
quently Nick Brumix confirmed his brother's statement as to his desires.
The other night employees received similar instructions from Respondent by
telephone.
About noon on April 18, Jon Heinrich had mechanics Spear, Knyaak, and Good-
man called to his office and informed them that Respondent was abandoning the
night shift, that there were thus more employees than Respondent could use, that the
three of them were the lowest producers among the mechanics and, therefore,
Respondent would have to terminate them but that Respondent would help them
get other positions.
The employment of mechanics Cira, Thompson, DeVries, and carhop Diesenroth
and greaser Zimmer was also terminated at I a.m on April 18.
During the day of April 20, Monday, Nick Bruinix , brother of Ernie Bruinix, and
the apprentice mechanic of the evening shift, notified Respondent that he would like
to work on the day shift in the service department, even as his brother Ernie had
told Respondent several days before. At the end of the workday on April 20,
Respondent notified day-shift apprentice mechanic Joseph Moldock that he was dis-
missed. Moldock was replaced the next day as the apprentice mechanic by Nick
Bruinix. Respondent explains this replacement on the grounds that Bruinix was a
higher producer than Moldock. Moldock had attended union meetings and in both
November and April had signed union authorization cards.
With the replacement of Moldock by Bruinix on April 20, all changes caused by
the closing of the night service department had been completed.
Rene Lombardo, who was the lubrication man or "greaser" on the day shift, had
thus successfully survived the changes occasioned by Respondent's decisions of
April 17 and continued his employment with Respondent, although he had attended
several union meetings and on April 11 had signed a union authorization card On
April 22 David Heinrich called Lombardo into the office where he told Lombardo,
in the presence of Jon Heinrich, that he was doing too much walking around the
plant and that they did not want him to talk about union affairs or to pass out union
cards. When Lombardo immediately attempted to deny having done so, he was told
"Don't lie." He was thereafter sent back to work.
The Heinrichs admitted having had the above conversation with Lombardo but
claimed that they had limited their admonition against Lombardo' s alleged union
activity "to company time and property." Respondent never before had had a
no-solicitation rule in the plant I am convinced that Lombardo's testimony that
the Heinrichs placed no such limitation in regard to company time and property upon
their orders to him as claimed by the Heinrichs is accurate. The Heinrichs appar-
ently convinced themselves subsequently that they had used that limitation to Lom-
bardo. Therefore I find that the order given by the Heinrichs to Lombardo on
April 22 constituted another violation of Section 8(a)(1) of the Act.
HEINRICH MOTORS, INC. 1591
About 10:30 a.m. on April 22, Lombardo was looking for the auto he was sup-
posed to grease next. As Lombardo was searching in the parking lot in front of
the plant, a customer requested Lombardo to move an automobile which was block-
ing the customer 's exit from the parking lot. Lombardo did so and , not having seen
the car he was searching for, decided to drive the car he was in around the block
so as to enter the rear parking lot where he expected to find the car he sought. At
the intersection with Lake Street, a heavily traveled thoroughfare , Lombardo's car
was stopped to permit a funeral procession to pass. Lombardo backed up slightly
and then carelessly left the automobile in reverse gear so that when he was permitted
to enter Lake Street, he backed into a city truck containing three men with a slight
bump. Assuming that no damage had resulted therefrom , Lombardo continued
around the block and into the rear parking area wheie he parked the automobile and
noted after parking the customer 's car that he had in fact done some slight damage
to its paint job. He located the auto he was to grease and proceeded with it to the
grease rack where he proceeded to grease the same.
Shortly thereafter Lombardo noted the presence in the plant of three men whom
he recognized as being the three men from the city truck. Lombardo continued work.
A short time later David Heinrich asked Lombardo if he had driven a car out of his
stall. Lombardo denied having done so. Sometime later David Heinrich inquired
of Lombardo if he had driven a particular car and had had an accident with it. This
Lombardo admitted . David Heinrich then stated , "Well, nothing serious, but you
are supposed to make an accident report" and departed.
About an hour and a half later David Heinrich returned and inquired of Lombardo
if he had filed the accident report. Lombardo acknowledged that he had not. Hein-
rich then took Lombardo to the credit manager who , after being told about the acci-
dent stated , "Well, that is it. There is nothing much."
A few minutes thereafter David Heinrich called Lombardo into the office, told
him that he was supposed to have reported the accident but did not do so, and there-
upon discharged him.
B. Conclusions
1. Interference , restraint , and coercion
On this record there is no question but that Respondent was much opposed to the
idea that its service department employees might decide to join the Union. In fact
Respondent openly acknowledged that it "intended to fight this [union organizational
effort] just as strongly as we can."
The record also discloses that Respondent did not restrict its efforts along this line
or limit itself to the permissible expression of "views, arguments or opinion " absent
threats of reprisal or promises of benefits. Undenied conversations by Respondent's
Shop Foreman Joseph D'Amico, Service Manager Joseph Facciponti , Assistant Serv-
ice Manager Willard Huss, Night Foreman Louis White, and Carent Manager and
later General Manager Robert Lawler with various service department employees
suspected of having prounion sentiments went far beyond the permissible statutory
limitations and amounted to illegal interrogations of employees as to their own and
other employees ' union membership , activities , and sympathies with the palpable
intent to coerce said employees into abandoning such union membership and activi-
ties in violation of Section 8(a) (1) of the Act. It is so found.
At the commencement of the hearing , General Counsel amended the complaint to
allege as a violation of Section 8(a) (1) by Respondent the fact that Respondent
"suggested and solicited its employees to notify other employees that they should
reject the Union , the Respondent made available worktime and its premises for
them to so notify the other employees ." This, of course , referred to the meeting of
December 21, 1963, between employees Speary, Rightmyer, and Bowen with the
Heinrichs and Lawler, and the subsequent meeting in the used -car department with
the rest of the employees where Speary announced the newly made decision to reject
the Union at the election and to give John Heinrich a "second chance ." While the
record here establishes that Respondent had embarked upon a none too subtle cam-
paign designed to accomplish exactly what actually occurred on December 21, the
fact remains that, after the message that Jon Heinrich would engage in no reprisals
had been carried to Speary by employee Bowen, Speary and the others decided on
their own to seek the meeting with Heinrich , and to confirm this no-reprisals com-
mitment. Just what caused Speary and the other employees to decide upon this
course of action, whether it was persuasion or coercion , is unclear in this record.
The testimony of Speary himself indicates that the employees persuaded them-
selves, for reasons best known to themselves , into that course of action which they
followed uninfluenced by Respondent 's campaign to that same end. In other words,
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees appeared to have persuaded themselves that their own best interests
at the time lay with giving Respondent "a second chance." Accordingly, I will rec-
ommend the dismissal of this allegation of the complaint. The result, however,
would be to the contrary if it could be said that the employees reached their decision
of December 21 in any part as a result of Respondent's interference or coercion.
Speary's testimony seems to negate this last.
2. The discharges
a. The discharges of Api rl I8
At least from the time of the meeting on December 21, Respondent knew that
Harry Speary was the employee leading the union organizational drive in the plant,
even if it could have had any doubt on that score prior thereto.
Respondent was duly pleased with his assistance as of December 21.
However, in February 1964, Jon Heinrich was admittedly angered by Speary's
attempt to assist discharged employee Jimmy Brown to secure reinstatement and
thereafter accused Speary, "We don't have a union in Heinrich Motors. You are
acting like a shop steward. I don't believe you have a right to do those things."
The following day Lawler warned Speary to "be careful" for fear of losing his job.
In both these instances, which violate Section 8(a)(1) of the Act, Respondent obvi-
ously failed to recognize that this Act protects more than mere union activities In
assisting Brown, Speary was definitely engaged in a protected concerted activity
guaranteed to be his right as an employee under the Act.
By April 12, at least, Jon Heinrich admittedly knew of this second effort at union
organization in the plant.
On April 16, with Speary specifically in his mind, Jon Heinrich addressed the
assembled service department employees in pertinent part as follows:
We are aware that there is a small secret group circulating cards for the UAW
.... I want to stress that this is a secret campaign conducted by a small group,
some of whom are standing in this room.ls They are soliciting secretly behind
our back I feel that these people are working to the detriment of Heinrich
Motors It is a shame that during our busiest season when we should all be
working to improve our income that we are again faced with this. I assure you
that we intend to fight this lust as strongly as we can.
In addition, Jon Heinrich stated that this organizational activity at this time was
"dishonorable."
It was the day following this speech, on April 17, when, after conferring at con-
siderable length with Respondent's labor attorneys and hurriedly assembling some
financial data on earnings of the employees of the night shift in order to have some
"indication" as to the profit or loss situation on the night shift and even later getting
some earnings records as to the day-shift employees, that the Heinrichs and Lawler
made two decisions: (1) to eliminate the night shift; 1) and (2) in "fairness," as
Heinrich phrased it, to eliminate the lowest producers among the mechanics regard-
less of whether they were day- or night-shift employees.
It was the second decision which resulted in the elimination of those known day-
shift union adherents, Speary and Knaak, and also of Goodman.20
Under these precipitous decisions of April 17, Respondent discharged, the next
day, nine service department employees, five from the night shift and four from the
day shift. Of these, all four from the day shift had signed union authorization cards
whereas only two of the five night-shift employees had done so.
The decision to close the night service department was made so precipitously that,
even though the financial figures Respondent had had for the past 2 years indicated
a severe decline in its business, Respondent made the decision, here based on nothing
better than an "indication," that the night shift was not making "enough money"-
not that it was losing money. In fact Respondent never compiled any figures show-
18 Speary was present at this meeting
19 According to Jon Heinrich, this decision was made between 5 30 and 6 30 p in and
prior therefore to the receipt of any earnings figures for the day shift
20 Goodman is not included as a union adherent here because, despite the fact that he
too had executed union authorization cards both in November and again in April, he
had twice, the last time being in his last week of employment, informed Respondent
that union organizational activity was going on among the employees again, but that,
due to his religious beliefs, he was not a part thereof. Respondent might well have been
confused as to Goodman's exact standing on the question.
HEINRICH MOTORS, INC. 1593
ing that the night service department, in contradistinction to the service department
as a whole, was losing money. Furthermore this decision was made to close the
night service department at the very onset of Respondent's "busiest" season, an
unusual time for such retrenchment. Surely sound business decisions are not made
that hurriedly, especially when warning signals have been flying for 2 years or more,
during which the actual figures could have been compiled and the facts ascertained.
There was, however, another union organizational campaign in being.
It is quite true, as Jon Heinrich testified, that the comparative figures compiled
from the operations of a number of similar automobile agencies indicated clearly
that there were a number of rather glaring weaknesses in Respondent's operations
but, strangely enough, most of these concerned indirect expenses not directly affect-
ing the service department. Actually Heinrich's testimony indicated that even before
the April 17 decision to close the night shift, Respondent had already eliminated
some few of the worst of these extraordinary indirect expenses under which Respond-
ent was operating, such as the expensive accounting system Respondent had installed,
apparently because Heinrich also happened to be a director of that company, an
exorbitant advertising account, and a few such other things.
One thing which Respondent's own financial records did indicate did affect the
service department. This weakness Respondent did not mention at the hearing.
The financial statements, introduced in evidence, showed a phenomenal increase in
the cost of supervision in the service department. The 1962 first quarterly report
showed that Respondent paid approximately $3,500 for those who supervised the
work of the mechanics who earned that quarter some $25,000 in wages, whereas,
according to the 1964 quarterly financial statement, Respondent was paying its serv-
ice department supervisors some $13,500 to oversee mechanics whose earnings had
fallen some $5,000 to a total of $20,000. Either the 1964 figures were wrong or
else the service department had been reduced to the state of "all Chiefs and no
Indians."
Heinrich cited a number of matters such as thefts of automobiles at night, super-
visors who failed to comprehend the Chevrolet warranty policy-and parenthetically
it might be stated here that Respondent's night service manager is not the only per-
son unable to comprehend such warranties-and the lack of ability to secure credit
checks at night which hindered the night-shift operations in the service department
as other reasons for the discontinuance of the evening shift. But the fact of this
matter is that each of these alleged deficiencies had existed since the institution of the
night shift in 1961, and thus could not have required the precipitous action Respond-
ent took on April 17.
All this leads but to the conclusion that on April 17 Respondent chose to close
the night service department for reasons other than sound business reasons.
In fact, the record discloses that Respondent's decisions to close and who to lay
off from the day shift were made so suddenly that the decisions were made on the
basis of incorrect figures of the earnings of its day mechanics. Figures supplied by
an accountant on August 8, 1964, and prepared for the purposes of the instant
hearing, show that, contrary to the figures Respondent purported to be using in
making the determinations on April 17 and hurriedly assembled that evening,
Speary was not the lowest producer on the day shift despite Respondent' s claims
to that effect and despite the fact that he was being given the poorly paid "zero"
work. The August 8 figures show mechanics Yaw and MacDuffie to have been
earning less than Speary at that time. Heinrich acknowledged that McDuffiie was
retained despite his lower earnings. But he maintained that the hurried figures of
April 17 showed Yaw to be a bigger producer than Speary. Yaw's actual earn-
ings, according to the August 8 figures, were the lowest on the day shift, although
his hourly rate is shown to be higher than the three men dismissed, due to the
fact that the record shows Yaw to have worked 100 fewer hours than any of the
other three. Thus Yaw would seem to have been prone to absenteeism. If, as
Jon Heinrich claimed, the April 17 figures showed Yaw to be a better producer
than the three mechanics dismissed, then the April 17 figures upon which Respond-
ent acted were incorrect. This leads to. the conclusion that on April 17 Respond-
ent had determined to get rid of the outstanding union advocate, Speary, under
any conditions. This fact is corroborated by the further fact that Speary, a satis-
factory employee for 7 years before he became active in union affairs, was selected'
for discharge over at least three mechanics who had worked for Respondent only
for a matter of months and Yaw whose record appears to have been blemished,
at least, by a poor attendance record.
The record proves, and I consequently find, that Respondent concocted this
whole scheme hurriedly in order to eliminate from its employ Harry Speary who
had been a satisfactory employee for 7 years until he "dishonorably," in Respond-
796-027-66-vol. 153-102
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's estimation , reactivated the union organizational movement among Respond-
ent's service department employees in March and April 1964. In thus eliminating
Speary for his union activities , Respondent also succeeded at the same time in
eliminating a number of other known union adherents such as Knaak, Moldock,
Cira, and even Goodman who was at least suspect . The others so eliminated were
unfortunate victims of Respondent's plan to be rid of Speary and thus were also
victims of Respondent 's antiunion motivation . Consequently, I am convinced that
the discharges of April 18, 1964, were made as a part of Respondent 's plan to
eliminate union membership and activity from its plant in violation of Section
8 (a) (3) and (1) of the Act. It is so found.
b. The discharge of Rene Lombardo
Lombardo successfully survived the antiunion motivated discharges by Respond-
ent of April 7.
Although the Heinrichs ordered him to stop talking union and distributing union
cards on April 22, Lombardo was returned to work. It thus appears that the Hein-
richs suspected Lombardo , rightly or wrongly, of entertaining prounion sympathies-
but they retained him as an employee.
The next day, on April 23, however, Lombardo not only drove a customer's auto-
mobile into the public streets but carelessly got into a small accident with it resulting
in admittedly almost negligible damage Thereafter Lombardo failed to report the
fact that he had had such an accident with a customer 's car. The testimony tends
to indicate a disposition on Lombardo's part to forget , if not conceal , his part in the
accident.
I am convinced and, therefore , find that Respondent discharged Lombardo on
April 23 for his part in the accident to a customer 's car that same day and, thus,
discharged Lombardo for cause, and not because of any suspected union membership,
activities , or sympathy . Accordingly I will recommend that the complaint be dis-
missed as to the discharge of Rene Lombardo.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES AGAINST COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom , and that it take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that Respondent discriminated in regard to the hire and
tenure of employment of those employees named below, by discharging each of them
on April 18, 1964, I will recommend that Respondent offer each of them immediate
and full reinstatement to his former , or substantially equivalent , position without
prejudice to his seniority or other rights and privileges , and make him whole for any
loss of pay he may have suffered by reason of said discrimination against him by
payment to him of a sum of money equal to that he would have earned as wages
from the date of the discrimination to the date of his reinstatement , less his net
earnings during such period in accordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289, with interest thereon at 6 percent per annum.
Harry Speary, Edward Knaak, Terrence Goodman, Anthony Cira, John Thomp-
son, Jacob DeVries, Thomas Deisenroth, George Zimmer, and Joseph Moldoch.
Because of the variety and the type of the unfair labor practices engaged in by
Respondent , I sense an opposition to the policies of the Act in general , and hence
I deem it necessary to order that Respondent cease and desist from in any manner
infringing upon the rights guaranteed its employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of those
employees named in the above section entitled "The Remedy," thereby discouraging
union activities among its employees , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a)(3) and (1) of the Act.
AVERILL PLUMBING & HEATING CORPORATION 1595
2. By interfering with, restraining , and coercing its employees in the exericse of
the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) of
the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. By discharging Rene Lombardo on April 23, 1964, Respondent did not commit
any unfair labor practice.
(Recommended Order omitted from publication.]
Averill Plumbing & Heating Corporation and United Association
of Journeymen and Apprentices of the Plumbing & Pipe Fitting
Industry of the United States and Canada, Local Union No. 412.
Case No. 28-CA-1005. July 23,1965
DECISION AND ORDER
On July 15, 1964, Trial Examiner Herman Marx issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and the entire record
in this case, and for the reasons set forth hereinafter has decided to
dismiss the complaint in its entirety.
Respondent, a member of the Associated Plumbing, Heating and
Piping Contractors of New Mexico, refused to sign the 1963 labor
agreement reached between the Union and the Association's negotiat-
ing committee. The Trial Examiner, as described more fully below,
found that Respondent violated Section 8(a) (5) of the Act by refus-
ing to sign this contract. In principal part, the Trial Examiner
relied on the fact that Respondent was a member of the Association,
that there was a certified unit in existence, and that Respondent by
execution of the 1961 contract had designated the Association as its
collective-bargaining agent.
153 NLRB No. 144.