Jim Causley Pontiac, Inc.

National Labor Relations Board - Board Decisions

Apr 4, 1969

175 N.L.R.B. 228 (N.L.R.B. 1969)

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jim Causley Pontiac , Inc. and Lawrence V. Kulak.
Case 7-CA-6238
April 4, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On December 4, 1968, Trial Examiner Gordon J.
Myatt issued his Decision in the above-entitled
proceeding, finding that Respondent 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 Decision.
Thereafter, 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.
The Board has reviewed the rulings made by the
Trial Examiner 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 briefs, and
the entire record in the case, and adopts the
findings, conclusions, and recommendations of the
Trial Examiner except as modified below.
The Trial Examiner inadvertently omitted from
his recommended remedy backpay provisions for
Lawrence Kulak, whose discharge was violative of
Section 8(a)(3) of the Act. Accordingly, we shall
order Respondent to make him whole for any losses
of earnings he may have suffered by payment to him
of a sum of money equal to the amount he would
have earned from the date of his unlawful discharge
to the date he was reinstated less any net earnings
during said period. Backpay shall be computed on a
quarterly basis in a manner consistent with the
Board policy set forth in F. W. Woolworth
Company, 90 NLRB 289, and interest thereon shall
be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
"Notify the above employee if presently serving in
the Armed Forces of the United States of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces."
2. Add the following as the fifth indented
paragraph in the Trial Examiner's notice:
WE WILL notify the above employee if presently
serving in the Armed Forces of the United States
of his right to full reinstatement upon application
in accordance with the Selective Service Act and
the Universal Military Training and Service Act,
as amended, after discharge from the Armed
Forces.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner Upon a charge
filed August 28, 1967,' by Lawrence V. Kulak, an
individual, a complaint and notice of hearing was issued
on October 31, 1967, against Jim Causley Pontiac, Inc.
(hereinafter referred to as the Respondent) In essence the
complaint alleged that the Respondent by and through its
agent, Ronald J Marcetti, violated Section 8(a)(1) of the
Act by coercively interrogating employees regarding their
union membership and activities and by threatening to
discharge employees for such activities. The complaint
further alleged that the Respondent violated Section
8(a)(3) of the Act by unlawfully discharging Kulak
because he joined and assisted Local No. 376,
international Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (hereinafter
referred to as the Union), thereby discouraging
membership in a labor organization The Respondent's
answer admitted certain allegations of the complaint,
denied others, and specifically denied the commission of
any unfair labor practices
This case was tried before me in Detroit, Michigan, on
December 19 and 20 All parties were afforded full
opportunity to be heard and to introduce relevant
evidence. Briefs have been received from the General
Counsel and the Respondent, and have been fully
considered by me in arriving at my decision in this matter.
Upon the entire record in this case, including my
evaluation of the testimony of the witnesses based on my
observation of their demeanor and upon the relevant
evidence, I make the following.
ORDER
Pursuant to Section 10(c) of the National
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Jim Causley Pontiac, Inc ,
Detroit, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified:
1. Add the following as paragraph 2(b) of the
Trial Examiner's Recommended Order and reletter
2(b) as 2(c):
FINDINGS OF FACT
1 JURISDICTIONAL FINDINGS
The Respondent is engaged in the business of selling
new and used automobiles, and maintains a service
department as an integral part of its operations. The
Respondent's only place of business is located in Detroit,
Michigan.
The parties stipulated that during the year ending
December 31, a representative period, the Respondent
sold and distributed automobiles and related automotive
products valued in excess of $500,000, and further that
'Unless otherwise specified , all dates herein refer to 1967
175NLRB No. 40
JIM CAUSLEY PONTIAC, INC.
products valued in excess of $10,000 were shipped to the
Respondent's place of business in Detroit, Michigan,
directly from points outside the State of Michigan On the
basis of these facts, I find that the Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11 THE LABOR ORGANIZATION INVOLVED
Local No. 376, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Ind., is and has been at all times material herein
a labor organization within the meaning of Section 2(5) of
the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
On August 23, Lawrence V Kulak applied for a job as
a light repair mechanic at the Respondent's dealership
Kulak had been employed in the same capacity by another
Pontiac dealer until the day before he made application
with the Respondent r Ronald Marcetti, the Respondent's
service manager, took Kulak's application and questioned
him regarding his experience and references. Kulak
testified that while he indicated on the application that he
worked for Woody Pontiac from June 1966 to August
1967, he explained to Marcetti that he had a medical
leave of absence from October 1966 to April 1967 due to
an operation on his arm. Marcetti told Kulak that he
would study the application and contact him later that
day That evening, Marcetti instructed Kulak to report to
work in the morning When he reported, Kulak was
assigned duties normally given to a light repair mechanic
On August 25, Marcetti drove by Kulak's work area in
a golf cart' and told Kulak to get in as he wanted to talk
to him. Kulak testified that Marcetti asked if he were "a
union man or a union organizer')" Marcetti indicated that
a further check of Kulak's application revealed that he
was somehow involved with a union According to Kulak,
Marcetti claimed to have fought to retain him because he
was a good mechanic, but stated that he would have to let
him go. Kulak denied that he was a union man or a union
organizer' A few minutes later, Kulak approached
Marcetti and asked if something could not be done to
straighten the matter out. Marcetti suggested that Kulak
come in the following morning and talk directly to
Causley, the Respondent's president.
The next day Kulak returned to the dealership and
approached Causley in the new car showroom. Kulak
assured Causley that he was not a union organizer or a
union member Kulak testified that Causley said, "Ron
[Marcettt] made a mistake, we are just cutting down our
forces and seeing you [sic] are the youngest man, we will
have to let you go first." When Kulak remarked that it
seemed strange to hire him just for 2 days, Causley made
no reply, and the conversation terminated
Kulak filed an unfair labor practice charge against the
Respondent on August 28 On September 28, Kulak
received a telegram from the Respondent informing him
'The dealer for whom Kulak previously worked was Woody Pontiac
Sales, inc His termination by that employer resulted in an unfair labor
practice charge , and is the subject of a decision issued by me this date
Woody Pontiac Sales. Inc, TXD-706-68
'Golf carts were used by the Respondent ' s personnel to travel back and
forth through the various sections of the service department
'Several days previously, while still employed by Woody Pontiac, Kuiak
had signed an authorization card for the Teamsters Union
229
that a job was available and that he should reply
immediately. The following Monday, October 2, Kulak
went to the Respondent's dealership and spoke to
Marcetti Kulak stated that he asked why the Respondent
had a "change of heart" and Marcetti replied, "You have
the Labor Board on our back and we want to give you a
fair shake, so we thought we would call you back and give
you a chance." Kulak agreed to think the matter over and
advise the Respondent of his decision. He subsequently
accepted the offer and returned to work on October 12
When he returned to work he was advised for the first
time (according to him) that he would be placed on a
90-day probationary period. Kulak has been employed by
the Respondent continuously since his return.
Marcetti testified on behalf of the Respondent
concerning the events leading up to Kulak's hire,
discharge, and subsequent rehire. Marcetti's testimony
indicates that Kulak did not mention the lengthy medical
leave of absence from Woody Pontiac at the time of the
interview on August 23. Marcetti stated that he tried to
check out Kulak's application with the service manager at
Woody Pontiac, but was unable to reach him by
telephone He subsequently contacted an assistant service
manager (whom he did not identify) and was told that
Kulak was a light repair mechanic and a good worker.
Marcetti also stated that he was informed at this time that
Kulak had been off for 6 to 8 months for medical reasons
while employed by Woody After making an unsuccessful
attempt to contact another reference listed on Kulak's
application, Marcetti decided to hire him Although he
made a decision to employ Kulak, Marcetti continued to
check the references and finally contacted Burke Pontiac,
another dealership listed on the application' Marcetti
testified that he was informed by someone at Burke
Pontiac that Kulak was an average mechanic who
performed light repair work. He was also told that Kulak
was "a little hard to handle, somewhat of a
troublemaker."
Because of the report from Burke Pontiac, Marcetti
continued to check on Kulak on August 24, even though
the employee had now started to work for the
Respondent. Marcetti contacted Raymond Hazen, a
person he knew to have been the service manager at
Woody Pontiac during part of the time that Kulak was
employed there.' Marcetti asked Hazen if Kulak had been
involved with unions or engaged in union activities. Hazen
informed Marcetti that Kulak was a good mechanic and
that he knew of no union activity on Kulak's part
Marcetti never asked Hazen if Kulak were a
troublemaker, nor did he mention the report from Burke
Pontiac '
'Whether Marcetti actually notified Kulak to report to work before he
contacted Burke Pontiac is not clear in the record
`Hazen had also been the service manager at the Respondent ' s dealership
for approximately 8 years ( 1957-1965 ) As such, he had been Marcetti's
immediate supervisor
'Marcetti ' s testimony concerning the substance of the telephone
conversation was corroborated by Hazen In addition , upon the General
Counsel's representation that it involved background evidence which would
shed light on the conduct alleged in the complaint , I allowed Hazen to
testify, over the Respondent ' s strong objections , with respect to certain
events which he claimed had occurred at the Respondent 's establishment in
August or September 1960 Hazen , who was then the Respondent's service
manager , testified in substance that the Respondent was faced with a
threat of a union campaign among the service department employees at a
time when the Company was moving into larger quarters He stated that
the Respondent ' s president instructed him to hire additional mechanics and
to screen them because the Company did not want union men or
sympathizers Although I am still of the opinion that the receipt of this
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 25 at approximately 2 p.m., Marcetti was
called into Causley's office and asked why he had hired
Kulak without first checking with him. Marcetti indicated
that his desire to get an experienced mechanic caused him
to disregard the Respondent's policy of clearing all new
hires with Causley." Marcetti testified that he was
instructed by Causley to discharge Kulak because there
was a possibility of a strike against the automobile
manufacturers by the United Automobile Workers
(U A.W.), and the Respondent's business would be
drastically reduced if this occurred." Marcetti
acknowledged on cross-examination, however, that he may
have told the Board agent investigating the case that
Causley also stated that he had contacted Woody Pontiac
and had received an unfavorable report on Kulak.
Pursuant to Causley's instructions, Marcetti discharged
Kulak at the end of the workday. He admitted asking
Kulak at this time if he were involved with a union, but
offered no explanation for the question except that
possibly the UAW strike was on his mind. Marcetti
testified that he told Kulak that his references checked out
favorably except that he had not indicated on the
application the 6- to 8-month medical leave of absence at
Woody Pontiac which "cut down considerably" on his
experience. According to Marcetti, this was the one thing
that concerned him. He told Kulak that he was letting
him go because of the possibility of a strike at General
Motors and because the Respondent had too many men
Marcetti's testimony concerning the conversation with
Kulak at the time that the Respondent offered to
reemploy him was substantially the same as the testimony
given by Kulak, with one notable exception. Marcetti
denied telling Kulak that the Respondent was offering to
reemploy him because he (Kulak) had the "Labor Board
on its back."
Causley, Respondent's other chief witness, testified that
he first saw Kulak's application on his desk on August 25
He stated that he called Woody Pontiac and was told that
Kulak was not a mechanic but a lubrication man and that
his work was below average Causley stated that he called
Marcetti in to find out why Kulak had been hired without
his approval, and that he told Marcetti to let Kulak go.
According to Causley, he told Marcetti that extra help
was not needed because of the possibility of a strike
against the automobile manufacturers.'° Causley further
testified that he informed Marcetti that Kulak was not a
qualified mechanic, but admitted on cross-examination
that he never inspected Kulak's work during the brief
period of time that he was employed by the Respondent.
Causley also admitted that the Respondent was
advertising in local newspapers for mechanics at the time
that Kulak was discharged. Causley stated that good
mechanics were difficult to find and more difficult to
retain For this reason the Respondent placed ads in the
newspapers with instructions to run them until otherwise
notified In many instances, according to Causley, these
testimony was proper for the purpose offered, I find that it has no
probative value Even if the events related by Hazen were considered true,
they cannot serve as a basis for explaining Respondent 's conduct some 7
years later Accordingly , I do not rely in any manner upon this aspect of
Hazen's testimony in arriving at my conclusions in this case
'Both Marcetti and Causley testified that for more than a year the
Respondent followed a policy of having Causley make the final decision
concerning the hire of employees in the service department
'The strike against the automobile manufacturers commenced several
days later and was confined to the Ford Motor Company
'°Causley acknowledged that no other mechanic was terminated or laid
off because of the strike threat
ads were never discontinued.
Concluding Findings
The sole issue presented here is whether Kulak was
terminated because of a belief on the part of the
Respondent that he was a union member or involved in
some manner with a union, or whether he was terminated
for reasons unrelated to union membership or activity.
Resolution of this issue rests squarely upon the facts to be
credited. While this is normally a difficult undertaking at
best, I find that my task is made easier by simply
analyzing the testimony given by the Respondent's
witness.
To begin with, one of the reasons advanced by Marcetti
to Kulak for discharing him was that Kulak's employment
application did not reflect his 6-8 month medical leave of
absence while employed by Woody Pontiac Thus,
according to Marcetti, the information on the application
made it appear as if Kulak had more experience in the
trade than he actually possessed. This statement is
curiously at odds, however, with Marcetti's earlier
testimony wherein he stated that when he contacted
Woody Pontiac on August 23, prior to his decision to hire
Kulak, he was informed that Kulak had been off for 6 to
8 months for medical reasons. It is evident, therefore, that
Marcetti was aware of Kulak's absence from the trade
before deciding to hire him, and further, that this
knowledge did not deter him from instructing Kulak to
report to work on August 24
Secondly, Marcetti was told by someone from Burke
Pontiac that Kulak was an average mechanic who was
"somewhat of a troublemaker." It was this statement
which prompted him to make a further inquiry of Hazen.
Significant at this point is the fact that Marcetti never
attempted to ascertain from Hazen whether Kulak was a
desirable employee, but rather, limited his inquiry to
whether Kulak was a union member or involved with a
union This preoccupation with the thought that Kulak
might be connected in some manner with a union further
manifested itself in Marcetti's own version of his
conversation with Kulak at the time of the latter's
discharge Marcetti admitted that he began the
conversation by asking if Kulak were a union member or
involved with a union.
Just as the testimony of Marcetti reveals the
Respondent's overwhelming concern with Kulak's possible
union affiliation, the testimony of Causley is equally as
revealing in determining,the validity of the reasons advanced
to justify Kulak's discharge. Causley stated that he called
Woody Pontiac on August 25, and was told that Kulak
was a lubrication man whose work was below average.
This description of Kulak's classification and ability, if
indeed it was made, is not only contrary to the testimony
of Marcetti regarding the information he received from
that same employer 2 days prior, but it is also contrary to
the reports given Marcetti by others listed on Kulak's
application - including Burke Pontiac. Causley also
testified that he determined that Kulak was not a
competent mechanic, but admitted that he had never
inspected Kulak's work. His willingness to disparage
Kulak's skills in these circumstances make it abundantly
clear that this employee was discharged for reasons other
than inability to perform the work satisfactorily.
Similarly, Causley's assertion that the Respondent did not
need additional mechanics, due to the pending strike
situation and its impact on the business, is equally
unconvincing. I find it difficult to accept this as an
JIM CAUSLEY PONTIAC, INC
explanation for Kulak's discharge in view of Causley's
testimony that good mechanics were difficult to find or
retain, and more especially, in view of the fact that the
Respondent continued to incur the expense of running ads
in the newspapers for mechanics during this same period.
When Causley's unconvincing explanations for ordering
the discharge of Kulak are considered in conjunction with
Marcetti's persistent efforts to determine if Kulak were
affiliated with a union, it becomes abundantly clear that
this employee was terminated because the Respondent
harbored a belief that he was a union member or
organizer Accordingly, I find, on the basis of the entire
record, that Kulak was discharged by the Respondent on
August 25 for discriminatory reasons in violation of
Section 8(a)(3) and (1) of the Act. I further find that
Marcetti' s interrogation of Kulak in an effort to
determine if he were a union member or organizer
constitutes restraint and coercion of that employee in the
exercise of rights guaranteed him under Section 7 of the
Act, and thereby violates Section 8(a)(1) of the Act "
CONCLUSIONS OF LAW
I Jim Causley Pontiac, Inc , is an employer engaged in
commerce within the meaning of Section 2(6) and (7 of
the Act
2. Local No 376, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Ind., is a labor organization within the meaning
of Section 2(5) of the Act
3 The Respondent violated Section 8(a)(3) and (1) of
the Act by discriminatorily discharging Lawrence Kulak
on August 25, 1967.
4 The Respondent violated Section 8(a)(1) of the Act
by interrogating the above-named employee about his
membership in a union.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
TiiE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend the
issuance of an order that it cease and desist therefrom and
that it take certain affirmative action designed to
effectuate the policies of the Act.
Accordingly, upon the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
I recommend pursuant to Section 10(c) of the Act, the
following:
RECOMMENDED ORDER
Jim Causley Pontiac, Inc , its officers, agents,
successors , and assigns , shall.
1. Cease and desist from
(a) Discharging employees because they are members of
a union or have engaged in activities on behalf of a union
or because of a belief that they are members of a union.
(b) Interrogating employees about their membership in
or activities on behalf of a union
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
231
rights guaranteed in Section 7 of the Act
2. Take the following affirmative action which I find
will effectuate the policies of the Act
(a) Make Lawrence Kulak whole for any loss of pay he
may have suffered by reason of his discriminatory
discharge on August 25, 1967, in the manner set forth in
the section of this Decision entitled "The Remedy " Post
at its Detroit, Michigan, dealership, copies of the attached
notice marked "Appendix."' i Copies of said notice, on
forms provided by the Regional Director for Region 7,
after being duly signed by the Respondent or its
authorized representative, shall be posted immediately
upon receipt thereof and maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Notify the said Regional Director in writing, within
20 days from the receipt of this Decision, what steps the
Respondent has taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
" in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the said Regional
Director , in writing, within 10 days from the date of this Order, what steps
the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
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
Relations Act, as amended, we hereby notify our
employees that:
This notice is posted pursuant to a Recommended
Order of a Trial Examiner, issued after a trial in which
both sides had the opportunity to give evidence. The Trial
Examiner found that we violated the National Labor
Relations Act and has ordered us to inform our employees
of their rights
The Act gives all employees these rights-
To organize themselves
To form , join, or help unions
To refuse to do any or all of these things
We assure all of our employees that
WE Wil L NOT question you about your membership
in a union or about your activities on behalf of a union.
WE WILL NOT discharge you because you are a
member of a union or work on behalf of a union
The Trial Examiner found that we discharged
Lawrence Kulak unlawfully on August 25, 1967
WE WILL make up any loss in pay that Lawrence
Kulak suffered as a result of the discharge plus 6
percent interest
"The complaint alleged, in addition to the interrogation , that Marcetti
threatened to discharge employees for engaging in union activities There is
no evidence in the record to support this portion of the allegation, and I Dated By
make no finding in this regard
CAUSLEY PONTIAC, INC
(Employer)
(Representative) (Title)
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days or compliance with its provisions, they may communicate
from the date of posting and must not be altered, defaced, directly with the Board's Regional Office, 500 Book
or covered by any other material. Building, 1249 Washington Boulevard , Detroit, Michigan
If employees have any question concerning this notice 48226, Telephone 226-3200.