Lou Awald Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1980

253 N.L.R.B. 879 (N.L.R.B. 1980)

LOU AWALD CHEVROLET, INC.
Lou Awald Chevrolet, Inc. and Retail Clerks Local
212, United Food and Commercial Workers,
AFL-CIO. Case 3-CA-9542
December 19, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.I.O, AND
TRUESDALE
On September 29, 1980, Administrative Law
Judge William A. Gershuny issued the attached
Decision in this proceeding. Thereafter, the Gener-
al Counsel filed limited exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Lou Awald
Chevrolet, Inc., Kenmore, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
t The General Counsel has excepted to the Administrative Law
Judge's implicit finding that David DiCarlo would, at some point prior to
his reinstatement, have been laid off for economic reasons. We are of the
opinion that the record does not clearly support this finding, and that the
determination of whether DiCarlo would have been laid off in the
normal course of events between the dates of his unlawful discharge and
reinstatement is best left to a compliance proceeding.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WI: Wlll. NOT interrogate employees about
their union sympathies.
WE WIll. NOT threaten employees with
more onerous working conditions in the event
a union becomes their bargaining agent.
Wl WILL NOT discharge our employees be-
cause of their union activities.
WE WILL make employee David DiCarlo
whole for any loss of earnings he may have
suffered as a result of our unlawful discharge
of him on January 19, 1980, with interest.
Lou AWAI.I) CHEVROLET, INC.
DECISION
STATE:MlENT O1 THE CASI
WII.l.IAM A. GERSHUNY, Administrative Law Judge:
A hearing was held on July 22, 1980, in Buffalo, New
York, on complaint issued February 28, 1980, alleging
violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, herein called the Act. Respondent's
answer denies any violation of the Act.
At issue is whether Respondent unlawfully discharged
new-car saleman DiCarlo and unlawfully engaged in in-
terrogation and threats of more onerous working condi-
tions.
Upon the entire record, including my observation of
the witness demeanor, I hereby make the following:
FINDINGS OF FACT ANI) CONCILUSIONS OF LAW
I. JURIS)ICTION
The complaint alleges, the answer admits, and I find
that Respondent, engaged in the retail sale and service of
new and used automobiles, with annual sales in excess of
$500,000 and purchases of goods valued in excess of
$50,000 from sources outside of New York, is an em-
ployer engaged in commerce within the meaning of the
Act.
11. I ABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Discharge of DiCarlo
DiCarlo was employed by Respondent as a car sales-
man from September 1976 to January 19, 1980, when he
was discharged from "lack of production."
On January 8, less than 2 weeks prior to his discharge,
DiCarlo telephoned the Union and requested that an or-
ganizer contact him at his home. A meeting between the
union representative and salesmen, originally schedules
for January 14. was held off the premises on January 16.
Eleven of the 14 salesmen attended and signed authoriza-
tion cards. The other three signed cards the following
day and gave them to DiCarlo at the showroom.
253 NLRB No. 113
879
I)ECISIONS (); NATIONAIL L.A()OR REL.AIONS 3()AR)
The credible evidence, direct as well as circumstantial,
compels the finding that General Manager McCleverty
and Sales Manager Paddock were aware of both the or-
ganizational activity at their showroom and the principal
role played by DiCarlo in that campaign:
(1) Salesman Welker, later determined by Re-
gional Director to be a sales supervisor. attended
the initial organizational meeting of January 16 Di-
Carlo was present and his role in initiating that
meeting was apparent to all who attended.
(2) During the course of a January 15 meeting
between Sales Manager Paddock and DiCarlo to
discuss the latter's sales objectives for 1980 and the
possibility that the General Manager might let i-
carlo go for lack of production, Paddock admittedly
introduced the subject of disadvantages of working
in a dealership where the salesmen were represented
by a union. At the hearing, Paddock was unable to
explain why the subject of unions was brought up
at that meeting, stating only that "it was pretty
common knowledge" that there was union activity
of other Buffalo area Chevrolet dealers.
(3) On January 17, DiCarlo asked Office Man-
ager Jaccarino if he had received any registered
mail that day. According to the testimony of Di-
Carlo, which I credit, Jaccarino replied, "You mean
the demand letter from the Union?", adding that he
had heard from a friend that "we had organized it
at the dealership, and that he should expect a
demand letter."
(4) Also on January 17, in the presence of two
other salesmen whose testimony was not offered by
Respondent, Jaccarino said to DiCarlo, "The Com-
pany just did you a favor [by wiping out salesmen
draw deficits for the previous month], and now you
are doing this to them" Again, I credit DiCarlo's
testimony, which throughout the hearing was
candid and convincing, and which was corroborat-
ed in number of material respects by the testimony
of Company officials.
(5) On January 18, the day prior to his discharge,
DiCarlo had a telephone conversation with his wife
concerning the union campaign. DiCarlo used a
company telephone located at the "up desk" on the
showroom floor and his conversation, conducted in
a quiet tone, was overheard by fellow salesman
Source, who was standing nearby. Also standing at
the desk reviewing inventory records was Truck
Sales Manager Creenan. Positioned only 2-4 feet
from DiCarlo, with the two generally facing each
other, Creenan was in a position to overhear t:
several minute conversation about the Union.
(6) On the morning of January 19, in appealing
his discharge to General Manager McCleverty, Di-
carlo asked if he were aware of "the rumors in the
area on the union activity." DiCarlo testified, and I
credit his testimony, that McCleverty responded af-
firmatively.
The credible evidence, overwhelming and uncontro-
verted, also compels the finding that DiCarlo, through-
out the brief organizational campaign, was next in line
for termination for economic reasons. Commencing in
November 1979, and continuing through May 1980, Re-
spondent suffered substantial monthly operating losses.
For the prior 22 months, losses were incurred in only 4
monthly periods. Two new-car salesmen were dis-
charged on November 15, 1979, for poor performance
and four other nonsales personnel were laid off on Janu-
ary 2. These economy measures, which commended in
October 1979, continued into 198(), when, on January 14,
Sales Manager Paddock was instructed to reduce his
new-car sales staff by one or two. Of' the two low pro-
ducers, DiCarlo and Moran, DiCarlo was selected for
termination. Moran, with more than 18 years with the
Company, had been "carried" for some time and it was
decided not to jeopardize his retirement.
Admittedly, DiCarlo was told by Paddock on January
15 that the General Manager was "thinking" of letting
him go. Admittely also, Paddock wanted to give Di-
Carlo "another chance" to improve his production be-
cause DiCarolo had had a good sales record orginally
and good salesmen were difficult to find. Paddock in-
formed McCleverty that he would "work with [Di-
Carlo]." Paddock again talked with DiCarlo about the
need to prospect for customers and, on January 18, gave
DiCarlo the name of a prospective buyer. The January
19 appointment which DiCarlo had arranged with that
prospect was never kept, because shortly after arriving at
the showroom that Saturday morning DiCarlo was ter-
ininated effective immediately.
Finally, the credible evidence compels at the conclu-
sion that, despite the imminence of DiCarlo's termination
due to the severe and extended decline in new-car sales,
the timing of that discharge was accelerated because of
DiCarlo's union activities. As previously indicated, Re-
spondent was aware of the campaign and was expecting
a written demand for recognition from the Union. That
letter was mailed on Friday, January 18, but not received
until the following Mlonday, 2 days after DiCarlo's dis-
charge. The union petition was filed with the Regional
Office also on Friday, but was not mailed to Respondent
until Monday, January 21. Significant, however, is the
fact that Paddock's announced intention to "work with"
DiCarlo was not overruled by McCleverty. Indeed, that
intention was in the process of implementation when
McCleverty suddently ordered the immediate discharge
of DiCarlo. Other factors point to an accelerated dis-
charge: First, DiCarlo had not been told on Friday that
he was not to report to work as scheduled on Saturday;
second, Paddock had given DiCarlo the name of a pros-
pect and was aware that DiCarlo had arranged a Satur-
day appointment with the customer: and, third, Paddock,
as late as Thurday, had scheduled DiCarlo to work the
area auto show to be held during the period of January
19 through January 27. 1 am unable to credit McClever-
ty's testimony that the Saturday morning discharge was
precipitated solely by DiCarlo's lack of sales activity on
Friday. Rather, it is clear that McCleverty's sudden deci-
sion on Saturday morning was the product of frustration
over DiCarlo's union activities at a time when the deal-
ership was experiencing a financial crisis and that, but
880
LOU AWALD CHEVR()I.ET, INC.
for his union activity, DiCarlo would have worked at
least through January 27. The precise period of DiCar-
lo's entitlement to backpay, however, is best left for reso-
lution in subsequent compliance proceeding. Ramos Iron
Works, Inc., 243 NLRB 896, 906 (1978).
Moreover, inamuch as DiCarlo was returned to work
by Respondent on July 3, 1980, no order of reinstatement
is required.
I conclude (a) that, by discharging DiCarlo on January
19, 1980, Respondent violated Section 8(a)(l) and (3) of
the Act and (b) that this unfair labor practice affects
commerce within the meaning of Section 2(6) and (7) of
the Act.
B. The January 15 Interrogation and Threat
During the course of the January 15 meeting between
Sales Manager Paddock and DiCarlo to discuss the lat-
ter's sales objectives for 1980, DiCarlo testified that Pad-
dock introduced the subject of unions, inquiring as to
whether DiCarlo had heard rumors of a union campaign
at another Chevrolet dealer and further inquiring as to
DiCarlo's "personal opinion on the Union." Following
DiCarlo's noncommittal response, Paddock then
launched into a recitation of the effects of a successful
union campaign:
He [Paddock] told me if the union were put into the
dealership, voted into the dealership, that the em-
ployees would have to punch in and punch out like
a factory; they would not enjoy the freedom that
we now enjoy, such as running out to the bank or
store. Also, that the union would restrict him as far
as what he would be able to do for the salesman
. . .amd he stated that there were no benefits to
salesmen at those [already organized] dealerships
and the union will never protect a low producer,
anyway.
Paddock admitted introducing the subject of the Union
into his meeting with Dicarlo:
and at this point here [in the meeting with DiCarlo],
I had mentioned, if you work in the union plant,
whatever, there were restrictions in talking and
working in the union area, as far as-I'm sorry--but
there is restriction .... It was mentioned, in relat-
ing to Unions, that Rochester, dealership in Roches-
ter that we were unionized, that they didn't have
anywhere near the set-up that the fellows in our
dealership had. They don't make near the money
that our fellows make.
Paddock denied asking DiCarlo about rumors of union
activity at another dealership or by Respondent's sales-
men, but did not testify as to whether he asked DiCarlo
for a personal opinion concerning the union.
I credit DiCarlo's uncontroverted testimony and find
that Paddock questioned DiCarlo as to his view of the
Union and stated that an organized dealership would
result in more strict working conditions at Respondent's
showroom.
I conclude (a) that, by interrogating DiCarlo about his
union sentiments and by threatening more onerous work-
ing conditions if a union were to become the representa-
tive of the salesmen, Respondent violated Section 8(al(1)
of the Act and (b) that said unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
IV. H RI!MEI)M
Having found that Respondent has violated Section
8(a)(1) and (3) of the Act, the Respondent shall be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent has unlawfully dis-
charged DiCarlo. but has reinstated him to his former
job, Respondent shall be ordered to make him whole for
any loss of earnings he may have suffered as a result of
the discrimination against him by payment to him of a
sum equal to that which he would normally have earned,
absent the discrimination, from the date of his discharge
to the date of his termination for economic reasons for
the date of reinstatement, whichever is earlier, wsith
backpay and interest computed in accordance with
standards set forth in F. W Woolworth Companyr 90
NLRB 289 (1950), aid Florida Steel Company., 231
NLRB 651 (1977). See, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
Upon the foregoing finding 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 '
The Respondent, Lou Awald Chevrolet, Inc., Ken-
more, New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Interrogating employees about their union sympa-
thies.
(b) Threatening employees with more onerous work-
ing conditions in the event the Union becomes their bar-
gaining agent.
(c) Discharging its employees because of their union
activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make employee DiCarlo whole for any loss of
earnings he may have suffered as a result of Respond-
ent's unlawful discharge, in the manner set forth in the
section herein entitled "The Remedy."
(b) Post at its Kenmore, New York, location copies of
the attached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
The Cieneral Counsel' tn ollon I. crrecl tranlscript daled Septemhber
5. NIK0. is granted
Il the e 'clt I l this Order Is cil;irced b a Judglmelt of it nlted
Stale (inrt o1l Appeals. the , ordis in he notce reading "Posled hb
Order of Ihe Natlill I hor Rl.tionll Ioard" shial read "Posted PuLrs-
ant li, a Judg enllt of the t nilled State (lrl f Appeals infliorcing an
Order of ihe Nallonal I ahor Relatitons 1ltird
881
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
882