Honda of Mineola

National Labor Relations Board - Board Decisions

Oct 20, 1977

233 N.L.R.B. 81 (N.L.R.B. 1977)

HONDA OF MINEOLA
Two Wheel Corp. d/b/a Honda of Mineola and
Amalgamated Local Union 355. Cases 29-CA-
3991 and 29-CA-3991-2
October 20, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 16, 1975, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding' finding, inter alia, that Respon-
dent had violated Section 8(a)(3) and (I) of the
National Labor Relations Act, as amended, by
discriminatorily discharging employees Glenn Musa-
no, Stewart Lilker, Robert Siegfried, David Kocivar,
Thomas Dodge, Dario Ardito, and Albert Antonsen.
The Board ordered that they be reinstated and made
whole for any loss of earnings suffered by reason of
the discrimination against them.2
On April 21, 1976, the United States Court of
Appeals for the Second Circuit issued its judgment 3
enforcing the Board's Order. Thereafter, on Decem-
ber 30, 1976, the Regional Director for Region 29
issued and served on the parties a backpay specifica-
tion and notice of hearing. Respondent filed an
answer on January 25, 1977. On April 14 and 15,
1977, a hearing was held before Administrative Law
Judge Marvin Roth for the purpose of determining
the issues and amounts of money due under the
backpay specification. 4
On June 23, 1977, Administrative Law Judge
Marvin Roth issued the attached Supplemental
Decision in this proceeding. Thereafter, Respondent
filed exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and brief and has decided to affirm the
rulings, findings,5 and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Two Wheel
Corp. d/b/a Honda of Mineola, Mineola, New York,
233 NLRB No. 19
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
I 218 NLRB 486(1975).
2 The Board found that Antonsen was not entitled to reinstatement as he
was a temporary employee whose employment was to cease in September
1974. However, the Board ordered that he be made whole for any loss of
earnings from the date of his unlawful discharge until such time as
Respondent would have lawfully terminated his employment.
3 542 F.2d 1165.
4 At the hearing, Respondent withdrew its answer to the backpay
specification as to Antonsen.
5 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: This case was
heard at Brooklyn, New York, on April 14 and 15, 1977,
based on a backpay specification issued on December 30,
1976, for purposes of resolving a controversy over the
amount of backpay due Glenn Musano, Stewart Lilker,
Robert Siegfried, David Kocivar, Thomas Dodge, and
Dario Ardito under the terms of the Board's Order issued
on June 16, 1975 (218 NLRB 486, enfd. per curiam 542
F.2d 1165 (C.A. 2, 1976)).1 The Board found that Two
Wheel Corp. d/b/a Honda of Mineola (herein called the
Company or Respondent) had discriminatorily terminated
each of the employees, thereby violating Section 8(a)(3)
and (1) of the Act. The Board issued, in pertinent part, a
conventional reinstatement and backpay order. The princi-
pal issue concerns the projected gross earnings which the
six employees would have made if working for the
Company during the backpay period, absent the discrimi-
nation against them. Additionally, an issue has been raised
as to the termination date of the backpay period. The
Company does not contend that the employees failed to
make an adequate effort to obtain interim earnings, or that
they otherwise willfully incurred loss of earnings. There-
fore, no issue is presented as to the computation of interim
earnings.
All parties were afforded full opportunity to participate,
to present relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Upon the
entire record in this case 2 and from my observation of the
demeanor of the witnesses, and having considered the
briefs submitted by General Counsel and the Company, I
make the following:
FINDINGS AND CONCLUSIONS
A. The Backpay Period
The backpay period for the employees begins on the
dates of their respective terminations during the period of
At the hearing the Company withdrew its answer to the specification
with respect to a seventh discnminatee, Albert Antonsen, and subsequently
paid the amount of backpay computed to be due Antonsen.
2 Certain errors in the transcript herein have been noted and corrected.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 24 through September 1, 1974. General Counsel
contends that the backpay period for Kocivar ends on
March 10, 1975,3 the date on which he returned to work,
and for the remaining employees on March 15, the day
following the last date which the Company gave them to
accept its offer of reinstatement. The Company contends
that the backpay period for Lilker, Kocivar, and Siegfried
ends on February 24 (without indicating any reason for
this date), and for Dodge, Ardito, and Musano on March
3, when the Company first offered them reinstatement. On
March 3, the Company sent identical telegrams to each of
the seven discriminatees, offering them reinstatement and
directing them to contact Company President Morris
Zagarek " ONLY, within 72 hours," in order to arrange their
return to work. The offer was invalid under Board law,
because it did not allow them a reasonable period of time
in which to decide whether they wished to accept the offer.
Southern Household Products Company, Inc., 203 NLRB
881, 882-883 (1973). On March 7, the Company sent a
letter to each of the employees, extending to March 14 the
time in which they could notify the Company if they
wished to return to work. General Counsel does not
contend that this was an unreasonable period of time.
Under Board law, "backpay is tolled on the date of actual
reinstatement, on the date of rejection; or in the case of
those who did not reply on the date of the last opportunity
to accept." Southern Household Products, supra at 882.
Therefore, the specification is correct as to the backpay
period.
B. The Company's Economic Defense
The Company's principal contention is that the specifica-
tion overstates the amount of gross backpay because,
according to the Company, there was not sufficient work
for the employees during the backpay period, which the
Company further contends, was coextensive with its own
off-season period. In further explication of its position, the
Company contends that most of the incumbent individuals
stated in the specification to be comparable employees for
backpay purposes, are not comparable for various reasons,
i.e., they were supervisory or managerial personnel, or
senior to the discriminatees, or enrolled under a Veterans
Administration training program, or because of a combina-
tion of these asserted reasons. It is settled law that in
backpay proceedings the burden is on the Respondent to
establish such economic defenses to the backpay formula
used by the General Counsel in the specification. Mastro
Plastics Corporation and French-American Reeds Manufac-
turing Co., Inc., 136 NLRB 1342, 1346 (1962), enfd. 354
F.2d 170, 175 (C.A. 2, 1965), cert. denied 384 U.S. 972
(1966).
In support of its position, the Company presented the
testimony of only one witness, Company President Morris
Zagarek, and some documentary evidence. No corrobora-
tive witnesses were presented, although on various points
which were significant to the Company's position such
corroboration would seem to have been called for. For
example, Zagarek was demonstrably unfamiliar with the
3 All dates herein refer to the period from August 1974 through March
1975, unless otherwise indicated.
Company's gross payroll records (or alleged records), but
the person who prepared or maintained such records was
not called as a witness. (Zagarek testified that one
"Angelo" in the accounting department had compiled the
figures contained in the summary sheets which the
Company presented in evidence.) Zagarek testified that his
wife Esther handled the paperwork and discussions
concerning the Company's VA training program, but she
was not called to testify about that matter. Zagarek also
made sweeping generalizations about the alleged superviso-
ry or managerial status of certain comparable individuals
named in the specification, which he was unable to support
by specific facts. However, supervisors who would be as
familiar or more familiar than Zagarek with the duties of
such individuals, e.g., his son Phillip, or Harry Wachter,
were not presented as witnesses. The absence of such
corroboration looms large when Morris Zagarek's credibili-
ty, or lack of credibility is considered. In the unfair labor
practice case, the Administrative Law Judge found that
Zagarek was not a reliable witness, and declined to credit
his testimony where it conflicted with that of other
witnesses. I have arrived at a similar appraisal. Zagarek
repeatedly demonstrated his willingness to testify to
anything, no matter how incredible or even absurd, if he
thought it might mitigate backpay. His testimony on
various material matters was repeatedly contradicted by
himself, his records, the evidence and findings in the unfair
labor practice case, or the inherent implausibility of his
testimony. For example, Zagarek categorically testified
that no employee had received an hourly increase of more
than 25 cents during the entire period of September 30,
1973, to March 31, 1975. After being confronted with
company records which showed that some 15 employees
had received raises ranging from 50 cents to $ per hour in
1974, many of which were in the late summer and early fall
of 1974, following the termination of the discriminatees,
Zagarek retracted his previous testimony. Zagarek also
categorically testified that his work force, which allegedly
reached a peak of 40 during the busy season, which he
described as being from March to August, was reduced to
less than 50 percent of its size during the backpay period,
and that this same proportionate reduction took place in
each of the departments in which the discriminatees had
worked (sales, service, and parts). Zagarek added that only
the less senior employees were laid off. He further testified
that this reduction of 50 percent or more invariably took
place every year, beginning in September. However, in the
unfair labor practice case the Board found, on the basis of
the Company's own contentions, that the Company
normally reduced its work force by one-third to 40 percent,
and not 50 percent as found by the Administrative Law
Judge. The Judge found (and the Board affirmed these
findings), that when, on August 28 (i.e., during the peak
season), the Union 4 and the Company discussed the
Union's demand for recognition based on signed authori-
zation cards, and specifically discussed the composition of
a bargaining unit, the Company presented a list of 23
personnel, including the three Zagareks and Supervisors
Harry Wachter and Ted Port. As the Union was attempt-
' Amalgamated Local Union 355, the Charging Party herein.
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HONDA OF MINEOLA
ing to demonstrate majority support on the basis of nine
cards, and the Company was decidedly opposed to
unionization, it may fairly be inferred that if the Company
had any basis for showing a larger unit, it would have done
so.5 Musano had been discriminatorily discharged on
August 23. During the period from August 29 to September
1, the Company terminated seven employees, including the
six remaining discriminatees. 6 Only four of the discrimina-
tees were told that they were being laid off for lack of work,
and one, Siegfried, who worked in the service department,
was ostensibly terminated for refusing to work overtime. In
fact, as found by the Board, all seven employees were
actually terminated because of their union sympathies and
activities. Thereafter, as found by the Administrative Law
Judge, the Company hired new full-time and part-time
employees, including one full-time employee in the parts
department, in October, two full-time employees in the
service department, on September 21 and October 12,
respectively, and one full-time employee in the sales
department, on September 14. 7
In fact, no employee was laid off for lack of work during
the backpay period. Employees who left were replaced.
Indeed, in December, almost at the nadir of the off-season,
Zagarek terminated parts department employee Kenneth
Ruppel, who was working full time and in excess of 40
hours per week, because he was unwilling to work even
longer hours. As for Zagarek's definition of the busy and
off-seasons, the Company in its brief impliedly conceded
this to be an exaggeration, stating that the Company's
business declined "in the late fall and winter months." In
fact, as credibly testified by Ruppel, the Company's busy
season depended mainly on the weather, and continued
through September and October if the weather was warm.8
As to seniority as a basis for alleged but nonexistent
layoffs, Zagarek testified otherwise in the unfair labor
practice hearing. Zagarek admitted that on July 23, 1974,
he informed the Company's employees that "continuing
employment will be based on seniority, productivity,
aptitude and general attitude." Moreover, as found by the
Administrative Law Judge in the unfair labor practice case,
the Company informed its employees that it had a policy
which was designed to minimize or eliminate any need for
economic layoffs. Specifically, the employees were in-
formed that the Company operated under a 3 to 2 formula,
whereby for each 3 hours of work during the busy season,
the employees were guaranteed 2 hours of work during the
slow season.9 In contrast to the testimony of Zagarek, I
have no reason to question the credibility of the witnesses
5 The Administrative Law Judge found, on the basis of the nine cards
and a 10th which it subsequently obtained, that the Union enjoyed a
majority status (10 cards in a unit of 18 employees). as of September 3, and
he issued a Gissel bargaining order.
6 The seventh, Steven Dyroff, also alleged as a discriminatee, was deleted
from the complaint on motion of General Counsel because of his failure to
appear or cooperate.
7 As indicated by the Company's payroll records, the new hires referred
to above were David Lew (parts), Jay Wilkner and Robert Janelli (service),
and Marc Frantham (sales). John Ryan and Barry Riffle were hired as part-
time employees in sales on August 26 and September I I, respectively.
8 General Counsel attached to its brief, temperature statistics maintained
by the National Weather Service at Kennedy Airport, which indicated, in
sum, that cold weather conditions set in about November 15. The Company
has not disputed, and I have no reason to question the accuracy of these
statistics. Therefore, I am takingjudicial notice thereof.
presented by General Counsel. In view of the foregoing
evidence, including Zagarek's demonstrated lack of veraci-
ty, and the conspicuous absence of testimonial corrobora-
tion of the Company's case, I have not, unless otherwise
indicated, credited Zagarek's testimony as to any disputed
matter, or the contents of the self-serving alleged records
which the Company presented in evidence, except to the
extent that such testimony and documents contain admis-
sions against interest or are corroborated by other, more
probative evidence.
C. The Discriminatee Claimants
I. Glenn Musano
Musano worked in the parts department. General
Counsel's projection of gross backpay is based on the
average weekly adjusted hours of incumbent parts depart-
ment employees Mark Schmidt and Kenneth Ruppel until
Ruppel's termination on or about December 20, and
thereafter on Schmidt's adjusted weekly hours.'0 In its
answer, the Company contended that Schmidt and Ruppel
were not comparable employees because Schmidt was
allegedly managerial or supervisory, and because both
were allegedly senior to Musano. The Company contends
that Greg Wolf, who was hired shortly after Ruppel's
termination, and who worked for the Company for about 3
weeks, is a comparable employee. The Company failed to
present any evidence to show that Schmidt was managerial
or supervisory. Zagarek admitted that Harry Wachter
managed the parts department, which consisted of two to
five employees." In fact, the Company's supervisory and
managerial personnel during the backpay period consisted
of Morris Zagarek, who personally managed the sales
department, his son, Phillip, who managed the service
department, his wife, Esther, who managed the office,
Wachter, and Ted Port, manager of the mail room. In view
of the small size of the Company's work force, it is unlikely
that the Company would have maintained a larger
managerial or supervisory complement. Additional evi-
dence in this regard will be discussed in connection with
the service and sales department employees. As for Ruppel,
he was junior to Musano. Ruppel worked for the Company
from September to December 1973, when he quit to take
another job. Ruppel returned to the Company in June 1974
as a new employee. Musano began with the Company on
9 In view of my findings, infra with respect to the individual discrimina-
tees. I have not found it necessary to determine whether and to what extent
the Company actually carried out this 3 to 2 formula. Indeed, the
terminations in August would have made it unnecessary for the Company to
resort to such a formula. However, the Administrative Law Judge's findings
concerning the formula, together with other evidence, including the absence
of economic layoffs during the backpay period, demonstrates that, absent
the discrimination against them, it is unlikely that the discriminatees would
have been laid offduring the backpay period.
so That is. "adjusted" to credit 1-1/2 hours for each hour worked above
40 hours per week.
I I The Administrative Law Judge noted, in the unfair labor practice case,
that in their meeting on August 28 the Union opined that Schmidt was a
supervisor, but the Company disagreed. The Administrative Law Judge
tentatively included Schmidt in the unit.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 30, 1974, and worked continuously until his termina-
tion.'2 Moreover, as indicated, the Company did not follow
seniority in layoffs, and also attempted to spread the work
among its employees during the off-season. Therefore, I
find that Schmidt and Ruppel are appropriate comparable
employees.
The remaining question is whether backpay should be
reduced on the theory that the injection of Musano into the
work force would have proportionately reduced the
working hours of each of the parts department employees. I
find this approach to be without merit in the circumstances
of this case. As indicated, the Company's busy season
probably extended to about mid-November. The Company
found it necessary to hire David Lew, who worked full time
in the department in late October and early November.
Any diminution of backpay following the termination of
Ruppel would plainly not be warranted, for as indicated,
Ruppel was not terminated for lack of work, but rather
because he was not willing to put in enough overtime to
satisfy the Company. That leaves in question a period of
about 5 weeks from mid-November to mid-December.
However, throughout the backpay period, Manager
Wachter was consistently working well in excess of 50
hours per week. Additionally, according to Zagarek, he and
his son were each regularly devoting 90 hours per week to
various facets of the business. It may fairly be inferred that
these managerial personnel performed some of the work
which had previously been performed by Musano. I find
the specification to be correct as to Musano.
2. Stewart Lilker and Robert Siegfried
Lilker and Siegfried worked in the service department.
General Counsel's projection of gross backpay is based on
the average weekly adjusted hours of incumbent service
department personnel Robert Maroglio, David Baldasara,
Jeff O'Donnell, and Jay Wilkner, when they were fully
employed. The Company contends that the first three were
not comparable employees because allegedly, Maroglio
was managerial or supervisory, and Baldasara and
O'Donnell were employed in an apprenticeship program
which precluded their layoff or reduction below a 40-hour
workweek. The Company contends that Wilkner and
Robert Janelli, who were hired on September 21 and
October 12, respectively, were comparable employees.
From April 14 to August 16, 1974, the service depart-
ment, in addition to Phil Zagarek, contained three
employees (Lilker, Siegfried, and Maroglio). Baldasara,
who was hired on August 16, became the fourth depart-
ment employee. Within a month of the unlawful termina-
tions of Lilker and Siegfried, the department returned to a
complement of four employees with the addition of
Wilkner and O'Donnell. O'Donnell had originally been
hired by the Company on April 1, 1974, before Lilker but
after Siegfried. Baldasara was replaced by Janelli, who
worked until the end of November. Thereafter, there were
three employees in the department until January 25, when
a fourth, one Doyno, was hired, and all four (Maroglio,
O'Donnell, Wilkner, and Doyno) continued to work
12 Similarly, the fact that employee David Lew had worked for the
Company in 1973 did not make him senior to Musano. Lew worked in the
parts department for about 3 weeks in October and November.
through the balance of the backpay period. All of the
employees during the backpay period worked full time; i.e.,
usually at least a 40-hour week. In short, except for the
brief period of time it took to replace Lilker and Siegfried,
the department never dropped below its peak season
complement of three employees, and during most of the
backpay period there were four employees.
Morris Zagarek testified that he appointed Maroglio as
shop foreman, effective September I, and subsequently
promoted him to "plant manager" in January, when
Doyno allegedly became manager of the service depart-
ment. Zagarek explained away his son Phillip by testifying
that he had only been the "acting" service manager.
Zagarek never did explain what Maroglio did after
September 1 that he had not done before, or why it was
necessary to create a new supervisory position for a
department with one remaining employee, or to create yet
another supervisory position, in January, both positions
having been created during what Zagarek characterized as
the slow season. Zagarek's facile production of a self-
serving memorandum concerning Maroglio's alleged ap-
pointment in August, was similar to his production of
another questionable memo in the unfair labor practice
case, with reference to the unlawful terminations. As
indicated, I find that Phillip Zagarek supervised the service
department, and that there were no other supervisory or
managerial personnel in the department.
As for Baldasara, he was never enrolled under the VA
apprenticeship training program. Baldasara testified in the
unfair labor practice case, on November 13, that he had
been hired by Zagarek to work under the program but that
"it didn't go" and that he never started under the program.
At that same hearing, Zagarek testified that Baldasara was
the only employee working under the program. In the
present hearing Zagarek produced a form of agreement
which purported to cover O'Donnell under the program.
However, the document indicated that O'Donnell began
working on October 5, 1974, but that his program was not
registered with and approved by the New York State
Department of Labor, which administers such programs,
until April 10, 1975, well after the backpay period.
Moreover, I find the Company's arguments to be without
merit for several additional reasons. First, as O'Donnell
came into the department after Lilker and Siegfried were
terminated, and, indeed, replaced one of them, the
Company cannot utilize this or any similar program as a
shield to immunize itself against backpay liability. Second,
the number of employees in the department during the
backpay period, and their hours' of work, discussed above,
indicate that O'Donnell probably would have been work-
ing full time, whether or not he was enrolled under a
training program. Third, as testified by Henry Witte, area
supervisor of the program, apprentices are expected to
work 40 hours per week if work is available, but the
employer cannot be compelled to give them work which he
does not have. Indeed, the form agreement covering each
apprentice expressly states on its face that "Layoff for lack
of work does not require an advance notice." ' 3
t3 Consequently. I do not credit the uncorroborated testimony of
Zagarek that Department of Labor auditors (conveniently unidentified by
name) told him and his wife that the program required a minimum of 40
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HONDA OF MINEOLA
In sum, I find that Maroglio, Baldasara, O'Donnell, and
Wilkner, when fully employed, were appropriate compara-
ble employees. I further find, upon consideration of the
foregoing evidence, including the size of the service
department and the working hours of incumbent personnel
during the backpay period, that the average weekly
adjusted hours of the comparable employees constitute an
appropriate standard for computing the gross backpay of
Lilker and Siegfried.
3. David Kocivar, Thomas Dodge, and Dario
Ardito
From June 8 until the unlawful terminations, the sales
department consisted of Kocivar, Dodge, Ardito, and
William Dowling. Dowling was a part-time employee, but
worked full time in the summer during July, August, and
early September. Thereafter he worked on a part-time basis
(ranging from 6 to 26 hours per week) through the backpay
period. The three discriminatees were full-time employees.
On September 14, the Company hired Marc Frantham as a
full-time sales employee. Richard Saunders began working
as a full-time sales employee on or about October 21, and
Frantham was terminated at the end of the same week
because Zagarek was dissatisfied with his work. Saunders
continued until about January 11, and about 2 weeks later
he was replaced by Bruce Lederer, who worked as a full-
time employee through the balance of the backpay period.
John Ryan and Barry Riffle were hired on August 26 and
September 11, respectively, and continued to work on a
part-time basis throughout the backpay period. Their
combined weekly hours ranged from a low of 18 hours to a
high of 51 hours, and totaled more than 40 hours during 10
of the 27 weeks of the backpay period commencing with
the week ending September 14. One Schultz worked 54
hours in sales during the week ending August 31, and
thereafter worked part time for 7 of the next 8 weeks. One
Signoli(?) worked 25 hours during the week ending August
31. Together the working hours of these part-time employ-
ees (excluding Dowling) were approximately equal to two-
thirds of the hours put in by each of the full-time
employees discussed above, the ratio being greater in
October and March, but less during most of the winter
weeks. In addition, the Company employed other full-time
sales help at various times during the backpay period. One
Schrock worked 6 weeks and part of a seventh week, one
Lowe a total of about 3 weeks, one Gorry for 6 weeks and
most of a seventh week, Jeff Gordon for 2 weeks and most
of a third week, and John Malloy for 2 weeks. In sum, the
hours put in by these five employees were roughly
equivalent to that of one full-time employee during three-
fourths of the backpay period. Overall, in terms of working
hours, the three discriminatees were replaced in a ratio of
slightly under 3 to 2-1/2 employees.
hours' work per week. Indeed. Zagarek contradicted himself by subsequent.
ly testifying that he never discussed the matter of less than 40 hours' work.
Rather. I credit the testimony of Witte that his department normally informs
employers that they may lay off apprentices for lack of work. The
deregistration decision involving Teamsters Local 363, cited by the
Company. did not involve any charges or findings concerning inadequate
hours of work.
General Counsel's projection of gross backpay is based
on the average adjusted weekly hours of Frantham,
Saunders, and Lederer, when they were fully employed,
and for the first 2 weeks of the backpay period, on the
average weekly hours worked by the discriminatees in the
prediscrimination period from April through August 1974.
General Counsel contends that Dowling is not a compara-
ble employee because of his part-time status. I agree. In its
answer, the Company asserted that Saunders and Lederer
were not comparable because they were managerial or
supervisory. Thereafter, apparently recognizing some in-
herent inconsistency in this position, Zagarek in his
testimony broadened this assertion to encompass Frant-
ham. Zagarek made sweeping assertions concerning the
alleged supervisory or managerial responsibilities of these
short-term employees, which he was unable to support by
specific evidence. His recitation of their actual duties
indicated that those duties were of a routine nature and no
different than those performed by other sales department
personnel. Frantham was paid less than Kocivar, and
Saunders the same as Kocivar. In the unfair labor practice
case, the Company had unsuccessfully attempted to prove
that Kocivar was a supervisor or management trainee; i.e.,
a contention similar to that made in the present case with
respect to the replacements. I find incredible Zagarek's
testimony that these new hires, including one who was
ostensibly not qualified, had to direct Dowling, who had
been working for the Company for over a year, in the
specifics of his work. I find it equally incredible that
Frantham would have recommended that Dowling be
replaced, or that Zagarek would have taken such a
suggestion seriously had it been made. In sum, I find that
Frantham, Saunders, and Lederer are comparable employ-
ees for backpay purposes. I further find no basis for
diminution of gross backpay. Although, as indicated, the
discriminatees were replaced in a ratio of approximately 3
to 2-1/2 employees when viewed in terms of hours worked,
the inference is warranted, and I so find, that Morris and
Phillip Zagarek performed some of the work which had
been previously performed by the discriminatees. There-
fore, I find the backpay specification to be correct in the
computation of gross backpay.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 14
Respondent, Two Wheel Corp. d/b/a Honda of Mineo-
la, Mineola, New York, its officers, agents, successors, and
assigns, shall make whole Glenn Musano, Stewart Lilker,
Robert Siegfried, David Kocivar, Thomas Dodge, and
Dario Ardito, by paying them the amount set forth below
opposite their name, plus interest thereon accrued to the
date of payment at the rate of 6 percent per annum
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
85
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
computed in the manner set forth in Isis Plumbing & Robert Siegfried
Heating Co., 138 NLRB 716 (1962), less tax withholdings David Kocivar
required by Federal and state Law: Stewart Lilker
Thomas Dodge
Glenn Musano $4,075.00 Dario Ardito
86
3,275.17
5,362.50
2,754.75
4,509.25
1,731.00