Honda of Mineola

National Labor Relations Board - Board Decisions

Jun 16, 1975

218 N.L.R.B. 486 (N.L.R.B. 1975)

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two Wheel Corp . d/b/a Honda of Mineola and
Amalgamated Local Union 355 . Cases 29-CA-
3991 and 29-CA-3991-2
June 16, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On February 24, 1975, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
exceptions and a supporting brief, and a brief in
reply 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' conclusions, and recommendations of the
Administrative Law Judge as modified herein.
1. Contrary to the Administrative Law Judge, we
ford that the General Counsel has not sustained his
burden of proof with respect to the alleged unlawful
surveillance by Respondent of employee Musano
during the 2-day period immediately prior to the
scheduled union meeting on the evening of August
29, 1974. In support of this allegation, the General
Counsel relied primarily on the following evidence
adduced at the hearing: (1) The testimony of
employee Ardito that "I was conscious that [Zagarek,
one of Respondent's owners] was following me-
Glenn [Musano] around"; (2) the testimony of
1 In his Decision , the Administrative Law Judge incorrectly referred to
employee Baldasarra as "Baldassar ." Additionally, the Administrative Law
Judge found, in sec. II, B, 2 of his Decision, that employee Lilker's account
of certain events described therein was the most lucid of several similar
versions given by various witnesses. The record clearly discloses that Lilker
did not in fact testify as to these events. However, the facts as found by the
Administrative Law Judge accurately reflect the testimony of the other
witnesses and, therefore , this apparently inadvertent error does not affect
our decision herein.
2 Cf. G. C. Murphy Company, 216 NLRB No. 113 (1975); West Point
Manufacturing Company, Wellington Mill Division, 142 NLRB 1161, 1163
(1963).
s In its exceptions, Respondent contends that the Administrative Law
Judge erred in considering that 50 percent of the unit , rather than one-third
to 40 percent of its total employee complement , was laid off, and further
argues that this latter percentage is consistent with its normal seasonal
reduction in force. While it is true that the number laid off was one-third to
40 percent of the total complement, as asserted by Respondent , we find that
the other reasons relied on by the Admiftistrative Law Judge fully support
his conclusion that these employees were unlawfully discharged.
We further ggree with the Administrative Law Judge's conclusions that
these employees , among others, who participated in the Union's demand for
recognition on August 26, 1974, were engaged in unprotected activity and
that, therefore, Respondent's 2-day suspension of these employees did not
violate Sec . 8(a)(3) and (1) of the Act. In so finding, we note particularly
218 NLRB No. 87
employee Dodge that, on one occasion -when
Musano was speaking to him about the planned
union meeting, Musano saw one of the Zagareks
approaching them and said, "I'll catch you later"; (3)
the testimony of employee Lilker that on one
occasion when Musano was speaking to himZaga-
rek's son "walked behind Musano"; and (4) Musa-
no's testimony that, while speaking to a union
representative on the public phone on Respondent's
premises, he saw Zagarek "hovering nearby" and he
therefore asked the union representative to call him
back on a phone in the parts department.
The mere presence of the Zagareks at various
places within the shop is not inconsistent with the
performance of the usual functions of management
personnel in a relatively small shop, and there is no
basis for inferring that their presence therein was not
customary. Nor is there evidence that the Zagareks
deliberately observed Musano's conduct during this
period or that they did so for any reasons related to
his union activities. Rather, the testimony here
consists mainly of the subjective impressions drawn
by the employees of the Zagareks' conduct. In these
circumstances, we conclude that the record does not
support the fording that Respondent engaged in
unlawful surveillance of Musano's union activities.2
2. We agree with the Administrative Law Judge's
findings that Respondent violated Section 8(a)(3)
and (1) by discharging employees Ardito, Dodge,
Kocivar, Lilker, Musano, and Siegfried and find
appropriate his recommended remedy requiring
Respondent to reinstate and to provide backpay to
these individuals .3
While we also agree with the Administrative Law
Judge's finding that employee Antonson was unlaw-
fully discharged by Respondent, we do not adopt his
recommended remedy to the extent it requires
that at the time of the demand these employees were assembled in
Respondent's showroom and in fact were blocking customer access to
Respondent's retail sales area, as evidenced by the following undisputed
testimony of Kocivar, one of the participants:
[Zagarek ] asked us if we would kindly leave , that we were blocking the
area .... [He] persisted and asked us many times ifwe would please
leave, again saying we were blocking the area and customers couldn't
get through the area, and the union reps again told him that we would
not leave.
The Board traditionally has applied somewhat different rules to retail
enterprises than to manufacturing plants with respect to the right of
employees to engage in union activity on their employer's premises. See,
e.g., Marshall Field & Company, 98 NLRB 88 , 92 (1952); The May
Department Stores Company, 59 NLRB 976 , 981 (1944). Thus, recognizing
the special interest of an employer operating a retail enterprise in avoiding
disruption to his business in areas where customers are normally present,
the Board consistently has indicated that a broad proscription of union
activity within the selling areas of such an employer 's premises is not
unlawful. See, e.g., S. E. Nichols Company, 156 NLRB 1201 , 1207 (1966);
Zayre Corporation, 154 NLRB 1372, 1379 (1965). See also Guyon Valley
Hospital, Inc., 198 NLRB 107 (1972). In the circumstances of the instant
case, and particularly in view of the above-cited testimony , we conclude that
the special rule pertaining to retail enterprises is fully applicable herein.
HONDA OF MINEOLA
Respondent to reinstate Antonson, for the following
reasons . Antonson was a college student who was
hired in early summer of 1974. Antonson testified
that during July and mid-August he had discussed
with Supervisor Port the possibility of continuing to
work during the following school year on a part-time
basis, and that Port later informed him that he had
spoken with Zagarek and "most probably" Antonson
would be able to work during the fall. Antonson,
however, admitted that he was informed at the time
of his hiring that his employment would terminate in
September 1974 when school resumed and that "I
had never been told defmitely by either Zagarek or
Port that I could in fact work parttime during the
school year, but I kind of figured . . . I would be
able to work."
It is clear from the foregoing that Respondent had
made no firm commitment to Antonson that he
would be permitted to work after the start of the
school year. Therefore, at the time of his discharge
Antonson was a temporary employee whose employ-
ment was to cease in September 1974. In conse-
quence, we conclude, contrary to the Administrative
Law Judge, that Antonson is entitled only to
backpay from the date of his discharge on August 29,
1974, until such time in September 1974 as his
employment lawfully would have been terminated.
Accordingly, we shall modify the recommended
Order of the Administrative Law Judge to conform
herewith.
3. The Administrative Law Judge, concluding
that the General Counsel had established the Union's
majority status, recommended the issuance of a
Gissel-type4 bargaining order in view of the serious
nature of the unfair labor practices committed by
Respondent . Respondent excepts to these findings,
contending primarily that the Union's majority
status was never demonstrated. While we do not
agree with the Administrative Law Judge's computa-
tions with respect to the number of employees within
the unit, we do agree with his conclusion that the
Union's majority status has been established, for the
following reasons.
The record discloses that, at a meeting held on
August 28, Zagarek presented to the Union a list
containing the names of 23 employees who he
contended were properly within the unit. Respondent
asserts that the list did not include Musano, but as
4 N.LRB. v. Gissel Packing Co., Inc 395 U.S. 575 (1969).
5 See, e.g ., San Francisco Metal Products Company, d/b/a O'Hara Metal
Products Co., 155 NLRB 236, 238 (1965)
8 See, e.g., Georgia-Pacific Corporation, 195 NLRB 258, 259 (1972).
s The Administrative Law Judge , concluding that the Union's filing of a
representation petition constituted a continuing demand for recognition,
counted as valid two authorization cards executed after the meeting held
487
the list is not in evidence this cannot be verified. In
initially computing the number of possible unit
employees, the Administrative Law Judge accepted
the total of 23, and, although having found that
Musano had been unlawfully discharged, he did not
add Musano to that count. Assuming for the
purposes of this decision that, including Musano,
there were 24 persons who arguably might have been
within the unit, we fmd nevertheless that the Union
had cards signed by a majority of the unit employees.
Thus, of the 24 (23 listed plus Musano), it is
undisputed that the parties agreed at the August 28
meeting to exclude 5 individuals, namely, Zagarek's
wife, son, daughter, and 2 admitted supervisors,
thereby reducing the total number of possible unit
employees to 19. Of these remaining 19 employees,
Antonson, whom we have previously found to have
been a temporary employee, is properly excluded
from the unit.5 The record further discloses that two
additional employees, Dowling and Ritchie, were
high school students working full time during the
summer but whose employment it was understood
would cease with the beginning of the school year.
Consequently, they are also properly excluded from
the units Thus, after eliminating the 3 students
employed for the summer, the total number of unit
employees stood at 16.
At the hearing the General Counsel submitted into
evidence 10 authorization cards, including that of
Antonson, in support of the Union's majority status.
Since we have found Antonson is properly excluded
from the unit, we shall not count his card. We further
fmd, as did the Administrative Law Judge, that the
remaining nine authorization cards are valid.7 Thus,
having obtained valid cards from 9 of the 16 unit
employees, clearly the Union in fact has been
designated as the collective-bargaining representative
of a majority of the unit employees.
Finally, we agree with the Administrative Law
Judge's conclusion that the unfair labor practices
committed by Respondent herein warrant the is-
suance of a bargaining order. Thus, Respondent not
only discharged Musano, the leading union adherent,
at the outset of the Union's organizational campaign,
but it proceeded to discharge for unlawful reasons 6
more of the 16 unit employees within 1 week of their
between Respondent and the union representatives on August 28.
Respondent excepts to the Administrative Law Judge's reliance on these
two cards solely on the ground that they were "untimely executed." we find
no merit in Respondent's exception. Where, as here, there is no allegation or
finding of a separate violation of Sec. 8(aX5), the continuing nature of the
demand and the specific date on which the Union achieved majority status
are irrelevant.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participation in the Union's initial demand for
recognitions In these circumstances, we fmd, as did
the Administrative Law Judge, that Respondent's
conduct is so egregious as to preclude the holding of
a fair election and to require the issuance of a
bargaining order under the guidelines set forth by the
Supreme Court in Gissel, supra.9
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as ' amended, the National Labor
Relations Board hereby orders that Respondent,
Two Wheel Corp. d/b/a Honda of Mineola, Mineo-
la, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Amalgamated
Local Union 355, or any other labor organization, by
discharging or otherwise discriminating against any
of its employees in regard to hire or tenure of
employment or any term or condition of employ-
ment.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
right to organize and bargain collectively as guaran-
teed in Section 7 of the National Labor Relations
Act, as amended, or to refrain from such activities.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Offer the employees named below, to the extent
this has not already been done, immediate reinstate-
ment to their former jobs or, if no such jobs exist, to
substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges, and
make the named employees whole for any losses they
may have suffered, in the, manner set forth in the
section of the Administrative Law Judge's Decision
entitled "Me Remedy." These employees are: Glenn
Musano, Robert Siegfried, David Kocivar, Stewart
Lilker, Thomas Dodge, Dario Ardito.
(b) Make whole Albert Antonson for any loss of
earnings he may have suffered by reason of the
discrimination against him from the date of his
discharge on August 29, 1974, until such time as his
employment would have lawfully ceased in Septem-
ber 1974, by payment to him of the sum of money he
would have earned during this period , less net
earnings, if any, to be computed in accordance with
the formula set forth in F. W. Woolworth Company,
90 NLRB 289 (1950), together with interest thereon
at the rate of 6 percent per annum as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
(c) Preserve and, upon request, make available to
the Board or its agents , for examination and copying,
all payroll records, social security 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) Upon request, recognize and bargain with
Amalgamated Local Union 355, as the exclusive
collective-bargaining representative of the employees
in the aforesaid appropriate unit respecting rates of
pay, wages, hours, or other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agreement.
(e) Post at its plant in Mineola, New York, copies
of the attached notice marked "Appendix." 10 Copies
of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days there-
after, 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.
(f) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
8 In total eight employees were terminated by Respondent, but the
allegation as to the eighth was deleted from the complaint . See the
Administrative Law Judge's Decision at fn. 6.
8 Cf. Joseph J. Lachniet, d/b/a Honda of Haslett, 201 NLRB 855, 856
(1973).
10 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any employee to discourage activities
in support of Amalgamated Local Union 355, or
any other labor organization.
WE wn,L give the employees named below their
old jobs or, if those jobs no longer exist,
substantially equivalent jobs, and WE WILL pay
them for the earnings they lost as a result of their
having been discharged. These employees are:
Glenn Musano Thomas Dodge
Robert Siegfried Dario Ardito
David Kocivar Stewart Lilker
HONDA OF MINEOLA
WE WILL pay Albert Antonson the earnings he
lost as a result of his having been discharged,
from the date of his discharge on August 29, 1974,
until such time as his employment would lawfully
have been terminated in September 1974.
WE WILL, upon request, recognize and bargain
with Amalgamated Local Union 355, as the
exclusive bargaining representative of all our
employees included in the unit description below
about their wages, hours, and working conditions
and, if agreement is reached, we will sign such
agreement. The appropriate unit is:
All parts, service, sales, and mail order
employees exclusive of office clerical and
professional employees, guards, and supervi-
sors as defined in Section 2(11) of the Act.
WE WILL NOT in any other manner interfere
with the right of employees to engage in organiza-
tional activities or in collective bargaining, or to
refrain from such activities.
Two WHEEL CORP.
D/B/A HONDA OF
MINEOLA
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Brooklyn, New York, on November 12, 13,
and 14, 1974, based on charges filed August 28 and 30,
1974, and a complaint issued October 15, 1974, alleging
that Respondent violated Section 8(a)(1) and (3) of the Act.
The General Counsel and the Respondent have filed briefs.
Upon the entire record in the case, including my
observation of the witnesses, and upon consideration of the
briefs, I make the following: i
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Respondent, a New York corporation, is engaged in the
retail distribution of motorcycles, motorcycle parts, and
related products, and in the service and repair of same, at
its principal office and place of business in Mineola, New
York. During the past year, it derived gross revenue in
excess of $500,000 from its operations, and during the same
period it purchased goods and materials valued in excess of
$50,000 from points outside the State of New York. I find
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. Amalgamated
Local Union 355, the Charging Party herein, is a labor
organization within the meaning of Section 2(5) of the Act.
1 The General Counsel's unopposed motion to correct the transcript is
hereby granted.
2 All dates herein are in 1974, unless otherwise specified.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
489
On August 21, 1974,2 in response to a call from employee
Glenn Musano to Union Business Agent Richard Shirk,
Shirk met with three company employees, Musano,
Siegfried, and Ardito, at a restaurant a block from
Respondent's business . This group arranged for another
meeting to be held after work on Friday, August 23.
Musano, during the intervening days, told many of the
employees about this meeting, soliciting their attendance.
During this period, Respondent's president, Morris Zega-
rek, was "following Glenn around," and "hovering
nearby" him. The day before the meeting, a group of
employees discussed the impending union meeting at lunch
in the back corner of the company parking lot, with Ted
Port, concededly a supervisor for the Company, nearby.
Port testified that he did not report anything about this
conversation to Moms Zegarek or to any other manage-
ment official. Implicit in his testimony was that he had, as
a number of employees testified, overheard the conversa-
tion.
Toward the end of the day on Friday, August 23,
Supervisor Harry Wachter told Musano, "I am going to
have to let you go." When Musano asked why, Watcher
responded, "I think there's a couple of reasons but I don't
know what they are, you will have to ask Mr. Zegarek."
Musano then went to see Zegarek, and asked him why he
had been discharged. According to Musano and employee
Dodge,3 Zegarek replied, "Good luck." Musano repeated
his question, and Zegarek then said, "Oh, go see Harry."
Musano said he had seen Harry, who had said that he
should see Zegarek, whereupon Zegarek said, "Well, I
don't know. Check with the office." After a few more
exchanges of this nature, Musano "said a few harsh words
and left." Zegarek gave a substantially' different version of
this exit interview. He testified that he told Musano he was
being fired for incompetence, that if Musano wanted more
details he should check with the office the following week,
and that "the profanity was overwhelming." For reasons
which will be set forth fully below, I do not credit
Zegarek's testimony where in conflict with that of other
witnesses in this case, and I find that the circumstances of
Musano's termination were as he and Dodge testified.
That night, August 23, 8 of the 10 employees who
attended the union meeting signed authorization cards.
Employee Lilker signed a card the next day, giving it to
Union Agent Shirk the morning of August 26. Two other
employees signed cards on August 28 (Steindl) and
September 3 (Baldasarra).4
On August 26, Union Representatives Shirk and Scott
came to Respondent's place of business, assembled some 8
or 9 of the employees in the retail selling area, and met
with Morris Zegarek. Scott'told Zegarek that the Union
represented a majority of the employees, and requested
that the Company recognize it. Zegarek indicated that he
would have to check with his attorney and other principals
of the Company. Attempts to reach the attorney by
3 It was stipulated that Dodge would so testify.
4 I pretermit for the moment whether all the cards were of employees in
the appropriate unit.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telephone were fruitless. When Philip Zegarek, Morris' son,
started asking the employees to return to work, Shirk told
him to direct his questions to Shirk, that he was
"representing the men and I will answer for them." After a
further attempt by Zegarek to reach his attorney proved
unavailing, Morris Zegarek said that the employees were
blocking the aisles, asked someone to call the police, and
asked Philip Zegarek to punch the men out. After the
police came, and Zegarek signed a complaint for criminal
trespass, the employees left. Shirk returned to the plant,
and finally got Zegarek's lawyer, David Isaacson, on the
telephone. It was arranged that they would meet the
following Wednesday at the store. When Shirk asked first
Isaacson and then Zegarek about the men returning to
work, Zegarek said that the men must be suspended at
least until the Wednesday meeting with Isaacson. Subse-
quently, after Shirk reported to the men outside what had
occurred, the men started picketing with signs reading
"Honda of Mineola Employees Locked Out," and they
continued to picket through the meeting on Wednesday.
As arranged, Scott and Shirk met with Morris Zegarek
and attorney David Isaacson, at the store, on Wednesday,
August 28. Employee Stewart Lilker attended most of the
meeting (all but the early part). The Union repeated its
August 26 demand for recognition, and, at Isaacson's
request, gave its authorization cards, nine of them at the
time, to Isaacson. The latter then displayed a handwritten
list containing approximately 23 names. There then ensued
a discussion of the number of employees in the unit, and
whether particular cards should be counted. It was agreed
that three Zegareks on the list, Morris Zegarek's wife,
daughter, and son, should be excluded and also apparently
agreed that Harry Wachter and Ted Port should be
excluded as supervisors 5 Zegarek took the position that
the cards of Musano and Antonson should not be counted,
the former because he was discharged on August 23 prior
to signing a card, and the latter because he was a "clerk."
There was discussion, but no resolution, of the status of
Mark Schmidt, who the Union believed was a supervisor,
and two employees, Dowling and one "Richie," who were
returning to high school in the fall. Zegarek seemed also to
be taking the position that employee Dyroff should not be
counted because he had been hired on a trial basis, less
than 2 weeks earlier. Scott at that point said, according to
Shirk's testimony, that "we no longer had a majority," and
that "we would file for an election," apparently also stating
that the number of cards was now 7, and the list still stood
at 17.
It was also agreed that the employees, with the exception
of Musano, could return to work the following morning.
There was also some discussion about layoffs, Zegarek
stating that he "normally begins laying people off on
September 1st." There was an "agreement" or
"understanding" with respect to possible layoffs, to the
effect that they would be made by seniority in the various
departments, attorney Isaacson characterized this as
5 In the light of a stipulation at the hearing that Wachter and Port were
supervisors, it does not matter whether there was agreement on this point at
the August 28 meeting.
a Following the hearing, the General Counsel moved to amend the
complaint by striking the references to Steven Dyroff in the operative
paragraphs of the complaint alleging a violation of Sec. 8 (a)(3) on the
something less than an "understanding." He testified that
"Zegarek indicated to Mr. Shirk that if it was at all feasibly
possible that in the course of his laying off people in the
various departments, they would be so laid off on a
seniority basis, if that in fact was possible." The meeting
broke up, and the Union then filed a representation
petition with the Board.
During the next few days, Respondent discharged or laid
off some seven employees. All seven, as well as Musano,
who had been discharged August 23, are alleged in the
complaint as having been discriminatorily discharged, in
violation of Section 8(a)(3) and (1) of the Acts Four of the
seven, Dodge, Ardito, Lilker, and Kocivar, were told that
they were being let go for lack of work. Antonson was
assertedly discharged for coming to work 2 hours late on
Thursday, August 29, and Siegfried was discharged
assertedly because he would not agree to work two nights a
week. Dyroff, as noted, is no longer alleged as a
discriminatee, and there is no evidence in the record
concerning his discharge or layoff; we know only that his
last day on the job was August 29.
Thereafter, actually beginning with the week ending
August 26, Respondent hired a number of new employees
into the business. These new employees included one full-
time employee in the parts department, hired in October;
two full-time employees in the service department, hired
September 21 and October 12; one mechanic, hired
September 21; one full-time employee in the mail order
department, hired August 29; and full-time employee in
the sales department hired September 14. In addition, a
number of part-time employees were hired, one on August
26, to work in both sales and mail order, another, whose
hiring date is not set forth, in mail order, and two in sales,
one hired the week ending August 26, and the other hired
September 11. Some of these employees hired during that
period left and were replaced by other new hires, also
during the same period.?
B. Discussion
1. The 8(a)(1) allegations
The complaint alleges that Respondent violated Section
8(a)(1) by engaging in surveillance of its employees' union
activities, and by offering, promising, and granting wage
increases, promotions, and other benefits to its employees
to induce them to abandon their union activities and
support.
With respect to the surveillance allegation, the General
Counsel relies on the testimony of Musano and Ardito that
Morris Zegarek was following Musano around during 2
days between' Musano's first having contacted Union
Business Agent Shirk and the union meeting of August 23,
during which 2 days Musano was soliciting the employees'
attendance at that meeting. In view of the lack of any
denial by Zegarek, and also in view of the fact that Zegarek
ground that he failed to appear or cooperate, after agreeing to do so. This
unopposed motion is hereby granted.
7 Other facts pertaining to the employees hired after August 23, as well
as other facts adverted to by the General Counsel in support of the 8(a)(3)
and (1) allegations of the complaint , and the General Counsel's request for a
bargaining order, will be set forth below as particular issues are discussed.
HONDA OF MINEOLA 491
indicated, at the August 28 meeting, that he knew Musano
signed his union card after he was discharged,8 I find that
Respondent thereby did engage in surveillance, in violation
of Section 8(a)(1) of the Act.
The other aspect of the surveillance allegation concerns
the existence of television cameras in the service depart-
ment, with a receiver in the office. As the testimony shows
that the television equipment was installed before, there
was any hint or suggestion of union activity in the shop,
and in the absence of any evidence that the equipment was
illicitly utilized, I fmd no violation in this respect .9
As to the rather broad allegations of the complaint
concerning promises, offers, and granting of wage increases
and other benefits, the General Counsel in her brief adverts
only to an offer by Zegarek to Kocivar of a management
trainee -position, which immediately preceded Kocivar's
layoff. There was nothing said in connection with that offer
to tie it in any way to a desire by Zegarek to discourage
Kocivar from engaging in union activities, nor is there a
sufficient basis in the record from which an inference to
that effect could be drawn.10 Accordingly, I fmd no
violation with respect to these allegations of the complaint.
2. The 8(a)(3) allegations
The complaint alleges that Respondent violated Section
8(a)(3) and (1) of the Act by suspending for 2 days those of
its employees who participated in the August 26 meeting
and thereafter picketed Respondent. Although the precise
sequence of 'events makes it appear that Zegarek suspended
these employees after the employees left the shop and went
outside and after Union Business Agent Shirk requested
that they be returned to work, the full story of the meeting,
as described by many of the witnesses, most lucidly by
employee Stewart Lilker, makes it evident to me that the
"suspension" was based on what occurred at the meeting,
that is, the refusal of the employees to return to work, with
their remaining in the selling area of the shop, and not on
any "strike" that thereafter may have occurred. I do not
view the conduct of the employees at the meeting as
"protected." A meeting had already been arranged
between the Union's representative, Zegarek, and Zega-
rek's attorney for the ensuing Wednesday, and I also see
nothing unlawful in Respondent's refusal immediately to
take back the employees, but, instead, awaiting the
scheduled meeting, even viewing the employees at the
moment as economic strikers.1' I shall accordingly dismiss
this allegation of the complaint.
Another portion of the complaint alleges a violation of
Section 8(a)(3) and (1) by Respondent in providing five
employees, Kocivar, Siegfried, Lilker, Ardito, and Dodge,
"with less employment than they previously had received,
and with less employment than they normally would have
3 The discharge was late in the day on August 23; Musano signed the
card the evening of August 23, but the signed card, which Zegarek saw at
the August 28 meeting , did not reveal when during that day it was executed
by Musano.
9 That the equipment did provide Respondent with another, way of
knowing, in this small shop of less than 20 employees , of the union activities
of its employees is obvious . That it was so used is, on this record, not shown.
10 I consider this "offer" and its refusal again in conjunction with the
8(a)(3) allegation with respect to Kocivar.
I In view of this disposition of the issue , I do not reach, Respondent's
received," on and after August 30. As all five of these
employees were allegedly discharged for discriminatory
reasons on or about the same date, discharges which I fmd
below were violative of Section 8(a)(3) and (1) of the Act, I
fmd it difficult to see how these can be a separate violation
of the Act involving "less employment," when there was
already no employment. The basis for this allegation, the
existence of a "three-two" formula, will be considered with
respect to, and is a crucial aspect of, the more conventional
8(a)(3) allegations of the complaint, to be discussed below.
These more conventional 8(a)(3) allegations begin with
the discharge of Glenn Musano on August 23, and
continue through the discharges (or layoffs) of seven other
employees on August 29, 30, and 31.12
Turning first to Musano, there is no question but that he
was the leading union advocate among the employees, the
one basically responsible for bringing the Union on the
scene. His activities in this respect,-in this small shop, could
not help but be known to Respondent. And the testimony
reveals that Supervisor Port knew of some of these
activities.13 Furthermore, as found above, Morris Zegarek
did follow Musano around the plant in the interim between
Musano's first calling Union Agent Shirk and the meeting
of August 23, to which Musano invited most of the
employees on the job. Finally, Respondent did have the
clear opportunity to observe his conduct through the
closed television circuit referred to above.
The facts surrounding Musano's discharge emphasize its
discriminatory nature. Thus, with no prior warning,
Musano was told by Supervisor Harry Wachter at the end
of the working day of August 23, I am going to let you
go." When Musano asked why, Wachter said, "There's a
couple of reasons but don't know what they are, you will
have to ask Mr. Zegarek." Musano went to Zegarek, asked
why he was fired, and Zegarek said, "Good luck," and then
responded to Musano's repeating his question, "Go see
Harry." As noted above, Zegarek never did give Musano
an answer. The uncontradicted evidence shows that
Musano had been criticized only once, by Harry Wachter
for filling out an invoice wrong.14 He had been praised a
number of times, and a letter concerning him, 'with rather
fulsome praise, from a customer, had been posted at the
shop by management.
The combination of all these circumstances, that is
Musano's leading role in advocating the Union to the
employees, his work, record as evidenced by the lack of any
significant criticism and the presence of praise, including
special praise to management from a customer, the
precipitate nature of the discharge, the "passing the buck"
back and forth from Wachter to Zegarek with respect to
the reason for the discharge, with neither giving Musano a
reason, all add up to a strong affirmative case of a
argument that what it did was a "permitted lockout."
12 As noted above, only six of the seven will be considered, Dyroff
having been amended out of the complaint.
13 As an admitted supervisor, his knowledge is imputed to Respondent,
and it would not matter whether he specifically informed Moms Zegarek of
what he observed or overheard, so that his testimony that he did not so
inform Zegarek is of no consequence.
14 The testimony indicates that Musano was filling out the invoices in
accordance with what he had been told by a previous supervisor, and was
told only that thereafter he should do it a different way.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory discharge in violation of Section 8(a)(3) of
the Act.
In its brief, Respondent seems to defend as to Musano
solely on the basis of "lack of knowledge" by Respondent
of Musano's union activities. I have already rejected this
defense. At the hearing, Zegarek advanced a number of
other reasons which, he claims, he discussed a week earlier
with Harry Wachter and with his son, Philip Zegarek,
neither of whom was called to testify. These "reasons"
included "his work, his performance, his lateness, his
absenteeism." As to the lateness and absenteeism, Respon-
dent offered no evidence at all, no personnel records or the
like. As to his "work" and "performance," Zegarek
mentioned Musano's "continually getting into accidents
almost killing me on two occasions on a ladder and finally
ending up in a hospital himself. Prior to that, there was
continual dropping of boxes. Apparently his sight is a
problem and he just doesn't see where he's working."
Zegarek added "continually late, not taking orders, not
following directions." Not only was there no convincing
proof of these derelictions, just as there was no proof at all
of the "lateness" or "absenteeism" mentioned by Zegarek,
there was not even any attempt made to assign dates or
times for any of them. Thus these generalized complaints
about Musano, never mentioned to him, could, if they
existed at all,- have been early in his employment, rather
than of recent vintage. Nor was there any particular
misconduct or dereliction on Musano's part even alleged to
have occurred immediately prior to the discharge. But
Musano's activities did occur in the 2 days before the
abrupt discharge. The explanations offered by Zegarek,
accordingly, bolster, rather than detract from, the General
Counsel's prima facie case that Musano's discharge was
discriminatorily motivated. I find, accordingly, that Re-
spondent violated Section 8(a)(3) and (1) by discharging
him.
With respect to the remaining six employees, Respon-
dent's basic position (the only one taken in its brief) is that
they were let go in a normal seasonal reduction in force. At
the hearing, however, based on what was told the
employees, as well as on Zegarek's testimony, there seemed
to be particular reasons advanced for the discharges of
Antonson and Siegfried rather than, or perhaps in addition
to, the general "no work" which allegedly formed the basis
for the layoffs of the other 'four. I turn first, however, to a
consideration of the discharges from the standpoint of the
asserted seasonal nature of the business and the necessity
for the layoff.
The evidence is not crystal clear as to the number of
persons in the shop just prior to August 23, 1974. At the
August 28 meeting, the list that was used by Zegarek and
attorney Isaacson contained 23 names. But this list, as
noted above, included 3 members of the Zegarek family
and 2 admitted supervisors, so there were at most 18
employees in the shop at the time, with 2 of them
apparently (again the record is not completely clear on the
point) high school students who were not expected to
remain as full-time employees once school began shortly
thereafter. Thus, starting with the discharge of Musano on
August 23, and excluding from consideration the 2 high
school students , 8 of the 16 (at most) employees were
released by September 1, 1974.
To justify, that is, to show the necessity for, the 1974
layoff, Respondent placed in evidence a graph, prepared
by Morris Zegarek for this case "from our books and
records," showing "the physical volume and sales volume
as it is directly in proportion to manpower requirements,"
for the year 1971. Zegarek testified that 1971 was a
"typical" or "average" year . No other figures were
presented, for 1974 or for any other year. Apart from the
fact that I have difficulty understanding the exhibit on its
face, it obviously proves nothing about 1974. Zegarek
testified to the Company 's past practice as "Sometime in
early September or sooner , we generally lay off between
1/3 and 40 percent of our personnel ." As noted, the
employee layoff in 1974 was at least 50 percent.
Most of the employees were told , and most received
written notification to the same effect , that Respondent
operated under a "3-2 formula," meaning that, for each 3
hours of work during the busy season , the employees were
guaranteed 2 hours ' of work during the slow season. None
of these employees was told that the 3-2 formula did not
apply to employees who had less than 12 months' service.
Yet, Morris Zegarek, who did not testify he so informed
the employees, did testify that the 3-2 formula had such a
limited application . Zegarek also testified that the formula
did have some application to employees with less than 12
months' service, for, if such an employee was "recalled
after layoff," he would then get 2 hours' work for each 3 he
had worked during the busy season . At an earlier point,
however, Zegarek had testified that he did not "in any way
solicit or request employees who had worked .. .
previously to return to work ." I regard these two
statements as basically in conflict with each other. More
significantly , I cannot believe that the Company would
inform its employees , without regard to their length of
service, of the 3-2 formula , many of them being informed
of it at the outset of their employment, would send notices
to these employees, again without regard to their lack of 12
months' service or the possibility of having 12 months'
service by the time the slow season began , concerning the
3-2 formula, following up such notices with updates of
their hours worked by quarterly periods , all to virtually no
useful purpose . Surely these employees with less than 12
months' service , were led to believe they would be working
2 hours during the off season for each 3 -hour segment they
worked during the busy season.
This conclusion is bolstered by the hirings immediately
preceding and following the September 1 purported
economic layoff. There were approximately six full-time
employees and four part -time employees hired, between
about August 23 and October 12, not counting other new
employees hired to replace employees who left the
Company after September 1. Respondent in its brief argues
that "a close scrutiny of the uncontradicted testimony
offered by Morris Zegarek was to the effect that the new
employees did not replace the laid off employees in that
they possessed skills and backgrounds different from those
laid off, but necessary to the economics of the business." In
my opinion, Zegarek's testimony did not at all establish
that the new employees possessed such different skills,
HONDA OF MINEOLA 493
necessary to the operation of the business, as to make their
having been hired unrelated to the asserted economic
layoffs. For example, Zegarek laid off salesmen Kocivar
and Dodge for lack of work, but hired a full-time salesman
2 weeks later, and three part-time salesmen, two even
before the layoffs and one on September 11. Zegarek's
"expllanation" was to the effect that the part-timers hired
were "racing enthusiasts," and hence would be an asset to
the business. Apart from the fact that only 5 percent of the
Company's sales were of "racing" cycles, the fact is that
Zegarek never even asked Dodge or Kocivar whether they
were "racing enthusiasts."
The other purported "explanations" were either nonexis-
tent, or even less convincing than the "racing enthusiast"
explanation. One such explanation concerned hiring new
employees for "warehouse inventory," with Zegarek stating
that his accountants "want entirely new people that have
no association with us prior to do the inventory." However,
the testimony establishes that regular employees in the
parts department had worked on inventory in the past, and
continued to do so after September 1. Absent any
corroboration of Zegarek's unsupported statement about
his accountants' "requirements," I cannot credit his
testimony in this respect.
Respondent also argues that at the August 28 meeting
between the union representatives and the Company,
Zegarek "agreed" that in the event business called for a
layoff it would be accomplished by seniority within
departments, and therefore Respondent was precluded
from shifting people from one department to another, "as
he might have preferred to do and as he had done in
previous years." Aside from the fact that Respondent was
not "recognizing" the Union, and hence could scarcely be
"bound" by any purported agreement, aside also from the
testimony of attorney Isaacson that Zegarek had said at the
meeting only that the employees would be laid on a
seniority basis "if it was at all feasibly possible," it is
inconceivable that Respondent could have believed that
hiring new employees, as it did, would be preferable to the
Union, and that it was precluded from shifting employees
around by that "understanding."
Finally, Respondent introduced into evidence an "office
memo" dated August 23, 1974, which Zegarek testified he
wrote "to the office" at that time, which was headed "End
of Season LAYOFF SEPTEMBER," and contained the
first names of three employees, the statement "Plus any
additional in accordance with business cycle," and the
words "Effective week ending August 30." Assuming
arguendo that this memo establishes that Respondent had
determined on August 23 to layoff about four employees
on or about September 1, and that this determination
preceded any knowledge by Respondent of its employees'
union activities,15 Zegarek's own version of the discharges
of Antonson (for lateness), Siegfried (because he would not
work 2 nights a week), and Musano (the evening of August
23 for an alleged variety of reasons), plus the fact that
Dyroff was also let go on August 29, would appear to have
obviated the need for any other employees to be laid off as
i5 But see, of course, the discussion above with respect to Musano.
16 Rupple alone of that group escaped being discharged or laid off.
17 My finding in this respect perforce does not include Dyroff, for
a result of the seasonal slowdown. Indeed, a layoff of about
four employees, not eight, would have been more in
keeping with Respondent's own past practice, as testified
to by Zegarek himself.
Furthermore, the events during the intervening days,
including the "suspension" of August 26, and returning the
employees to work on August 28, with no mention to any
specific employee that his tenure was to be only for a day
or two thereafter, tend to cast doubt on Zegarek's
testimony, and its supporting memo "to the office" that the
determination had been made on August 23. Coupled, as it
must be, with the hirings during that period of about as
many, considering two part-timers as about equal to one
full-timer, employees as were let go, and with Respondent's
failure to produce any current business records, relying
solely on the graph, without any supporting figures even
for it, pertaining to its business 3 years previously, and
considering also that every employee discharged or laid off
had been at the August 26 meeting as union adherents,16 I
am convinced that all the layoffs and discharges of August
29, 30, and 31 were discriminatorily motivated, as was that
of Musano on August 23, already discussed above.17
I have fully considered Respondent's position with
respect to Antonson and Siegfried, the two employees
ostensibly discharged August 29 and 31, respectively,
without regard to the "seasonal" nature of the business.18
As to Antonson, the reason advanced was being 2 hours
late on Thursday, August 29. The strong affirmative case
applies to him as well as to the others; the offense was
minor, and was on the day these employees were coming
back to work following the 2-day suspension, and
Antonson, as well as others, had been late before without
any penalty attaching. As to Siegfried, he was allegedly let
go because he did not want to work 2 nights a week.
Zegarek also pointed out to Siegfried that his hands were
tied because of the Union. Here, too, I am satisfied that
Respondent was seizing upon Siegfried's disinclination to
work 2 nights a week, already a fact much earlier (in July),
as a pretext to rid the Company of a known (by then, of
course, the union adherents were all clearly known to
Respondent by virtue of the August 26 meeting) union
sympathizer.
One final point needs mentioning at this stage. At the
hearing, Respondent seemed to be taking the position that
Kocivar was a supervisor, and should not be counted
toward the Union's asserted majority status. If he was a
supervisor, then his discharge would not be violative of
Section 8(a)(3). Although Respondent's brief seems to
abandon any contention with respect to Kocivar's status
qua employee, I am satisfied, without going into the
evidence on the point, that he remained at all times an
employee, despite having been given some added
"responsibilities" sometime in July - responsibilities
which were at most to make routine work assignments,
without any necessity for the exercise of independent
judgment, and with the vast bulk of his duties remaining
normal salesman functions.
reasons already mentioned.
18 Even though the brief does not distinguish between these two and the
others.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For all the above reasons, I find that Respondent
violated Section 8(a)(3) and (1) of the Act by discriminato-
rily discharging employees Antonson, Dodge, Lilker,
Ardito, Siegfried, and Kocivar on August 29 through
August 31, 1974.
3. The General Counsel's request for a bargaining
order
The General Counsel requests a bargaining order in this
case , based on the alleged "serious and substantial" unfair
labor practices. In view of my conclusion that Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
seven of its employees because of their union sympathies
and activities, the predicate for issuing a bargaining order,
on the authority ofN.L.R.B. v. Gissel Packing Co., 395 U.S.
575 (1969), and Steel-Fab, Inc., 212 NLRB 363 (1974),
plainly exists. That is, the discharge of 7 union adherents in
a unit of approximately 16 employees would obviously
make highly unlikely, if not preclude altogether, the
holding of a fair and free election.
It is necessary, before such a bargaining order issue, that
there have been a majority of employees desiring represen-
tation by the Union, in an appropriate unit. With respect to
the Union's authorization cards, all 10 presented were
stipulated to be authentic. Respondent claims, however,
that the General Counsel never established a majority in an
appropriate unit, asserting in its brief that "The'best that
can be said for the Union's claim is that it represented 7 of
17." This contention is based on a statement by Union
Business Agent Scott at the meeting of August 28 with
Respondent, when Scott, following a discussion of the
"list" of employees Respondent had with it, and of the
Union's cards, expressed the view that "the number of
cards we had was seven and the list still stood at 17," so
"Arthur -[Scott] took the position we no longer had a
majority." The Union's failure to press its bargaining
request any further at the meeting, however, constitutes
neither, an admission that it did not have a majority, nor a
reason for not counting otherwise valid cards. All that the
Union was doing at the time was obviously agreeing (and
this is prior to the discharge of all but Musano) to have the
Board resolve unit and eligibility questions through the
petition it said it was going to, and did, immediately
thereafter file. One of the nine cards the Union had at the
time,19 was that of Musano, and Scott's statement about
"seven" cards was excluding Musano's card because he
was fired prior to signing it. Having found Musano to have
been discriminatorily discharged, his card is, of course,
valid, and to be counted toward the Union's majority.
Another of the disputed cards was apparently that of
Antonson, who, according to Zegarek, was a "clerk." The
testimony concerning Antonson clearly demonstrates,
however, that his duties include much more than clerical
work, and that what clerical work he did perform was more
in the nature of "plant clerical" than "office clerical" work
in _a unit of this nature. His card, too, must be counted
toward the Union's majority.
In the light of Steel-Fab, supra, pursuant to which the
concern is whether a bargaining order should issue, rather
than whether there was a "refusal to bargain" at any given
point in time, I am also of the opinion that the card of
employee Baldassar, although signed after the Union's
request for bargaining, should be counted. These conclu-
sions result in the Union having ten valid authorization
cards. Although the precise number of employees in the
unit never became fully clarified, the testimony concerning
the "list" of August 28 indicates that it contained 23
names, and all parties were in full agreement at the hearing
that 5 of the names thereon, the 3 members of the Zegarek
family, and Supervisors Wachter and Port, should not be
included in the unit. This means that at most (including the
2 employees who were going back to high school) there
were 18 employees in the unit, and the Union therefore
had, by September 3, 10 valid cards, a majority, out of 18
employees. The unit alleged in the complaint, and set forth
below, is clearly appropriate.Z
Accordingly, I conclude that the imposition of an order
requiring Respondent to bargain with the Union as the
exclusive representative of the employees in the unit found
appropriate herein is proper and necessary to effectuate the
remedial processes of the Act.
CONCLUSIONS OF LAW
1. All parts, service, sales, and mail order employees, of
Respondent, employed at its Mineola place of business,
exclusive of office clerical and professional employees,
guards, and supervisors as defined in Section 2(11) of the
Act constitute a unit appropriate for purposes of collective-
bargaining-
2. The Union during the period here relevant represent-
ed a majority of the employees in the unit found
appropriate herein.
3. By engaging in surveillance of its employees union
activities, Respondent has violated Section 8(a)(1) of the
Act.
4. By discharging or laying off employees' Glenn
Musano, Albert Antonson, Thomas Dodge, Stewart Lilker,
Dario Ardito, Robert Siegfried, and David Kocivar,
because of their union sympathies and activities, Respon-
dent has violated Section 8(a)(3) and (1) of the Act.
5. The discharge of the union adherents herein named
constitutes a flagrant unfair labor practice disruptive of
conditions which would permit a fair and free election and
warrants the imposition of an order directing Respondent
to bargain with the Union as the exclusive representative of
the employees comprising the unit found appropriate
herein.
6. The unfair labor practices found herein affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
19 The 10th, that of employee Baldassar, was obtained about a week thought somewhat sparse, does in any event support a conclusion that the
later . various departments had a sufficient community of interest with one
20 It is a basic wall-to-wall unit, with the customary Board exclusions. another in this small shop to constitute an appropriate unit taken together.
Respondent does not contest its general appropriateness, and the evidence,
HONDA OF MINEOLA 495
Do REMEDY
Pursuant to the mandate of Section 10(c) of the Act, a
cease-and-desist order will be entered against Respondent
enjoining Respondent from engaging in the conduct found
unlawful herein. Because that conduct was so flagrant and
goes to the heart of the Act, it is fairly to be anticipated
that Respondent may in the future resort to other conduct
violative of the Act to defeat the rights of its employees to
organize and bargain collectively. Accordingly, Respon-
dent will be directed to cease and desist from interfering in
any manner with those employee rights.
Affirmative relief is also appropriate here. Respondent
will be directed to offer full reinstatement to the seven
employees found herein to have been unlawfully dis-
charged and to make them whole for lost earnings
computed on a quarterly basis plus interest at 6 percent a
year, as prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962), from the date of their wrongful termination to
the date reinstatement is offered. For reasons already set
forth, Respondent will be directed, as part of its affirmative
obligation, to recognize and bargain collectively with the
Union as the exclusive representative of the employees in
the unit found appropriate herein. The customary provi-
sions regarding recordkeeping, notice posting, and report-
ing requirements will also be included.
[Recommended Order omitted from publication.]