Moro Motors Ltd.

National Labor Relations Board - Board Decisions

Jan 17, 1975

216 N.L.R.B. 192 (N.L.R.B. 1975)

192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moro Motors Ltd. and International Industrial Pro-
duction Employees Union. Case 29-CA-3686
January 17, 1975
DECISION AND ORDER
By ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On July 29 , 1974, Administrative Law Judge
Arnold Ordman issued the attached Decision in this
proceeding . Thereafter, Respondent filed exceptions
and a supporting brief and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
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 Administrative
Law Judge 's rulings, findings , and conclusions and to
adopt his recommended order , only to the extent
consistent herewith.
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(1) and
(3) of the Act when it discharged en masse 8 declared
union adherents out of a unit of 12 on January 8,
1974; 1 that the strike , which followed these discharg-
es, commencing January 9 was in protest against said
discharges - and, accordingly , was an unfair labor
practice strike ; that the International Production
Employees Union represented a majority of the
employees in an appropriate unit ; 2 and that inas-
much as the Respondent 's conduct rendered a fair
election unlikely , an 8(a)(1) bargaining order under
the authority of N.LR. B. v. Gissel Packing Co., Inc.,
395 U .S. 575 ( 1969), was warranted , even in the
absence of a finding of a violation of Section 8(a)(5)
of the Act , pursuant to our decision in Steel-Fab,
Inc., 212 NLRB 363 (1974). Indeed , Respondent does
not except to these findings.
The Respondent's only exception is to that portion
of the Administrative Law Judge 's recommended
Order, wherein it is ordered to offer to John Sylak
full reinstatement and to make him whole for lost
earnings from the date of his wrongful termination to
the date reinstatement is offered . In its exceptions
Respondent contends , inter alia, that the Administra-
tive Law Judge erred in failing to consider certain
record evidence and make findings thereon, which
All dates are in 1974.
s As more fully described in the attached Decision of the Administrative
Law Judge.
3 We disagree with out dissenting colleague that this invitation to return
purportedly establish that Sylak was unconditionally
offered, and failed to accept, full reinstatement on
January 9. In support of its contention, Respondent
relies on the uncontradicted testimony of Sylak,
whom the Administrative Law Judge otherwise
credited, to the effect that, while at the Respondent's
premises to pick up his paycheck on January 9,
Manuel Koufman, general consultant and, adminis-
trator of Respondent's business, stated to him, "I
would like to have you back" to which Sylak made
no response. Significantly, Koufman, although called
as a witness on Respondent's behalf, was never
questioned by Respondent concerning this purported
offer of reinstatement to Sylak on January 9. In these
circumstances we are not persuaded that Koufman's
terse comment, lacking as it does any specificity, was
either intended to be, or constituted in fact, the kind
of specific and unconditional offer of full reinstate-
ment which we customarily require be made in order
to toll backpay and absolve a respondent from
further offering reinstatement. Accordingly, we find
the Administrative Law Judge's failure to consider
such evidence to be without prejudice.
Respondent contends in the alternative, however,
that the proposal made to Sylak at the beginning of
February by Respondent's secretary-treasurer, Mort
Widen, Jr., constituted an unconditional offer of full
reinstatement, which, having been rejected by Sylak,
absolved Respondent from further offering reinstate-
ment to Sylak, tolled Respondent's backpay obliga-
tion to Sylak, and had the effect of changing Sylak's
status from that of a discriminatorily discharged
employee to that of an unfair labor practice striker.
We agree. American Art Industries Inc., 166 NLRB
943 (1967).
On direct examination by the General Counsel,
Sylak was asked: "Did anyone ever offer you your
job back after the . . . meeting . . . on January 8th?"
(Emphasis supplied.) Sylak, whose testimony was
credited by the Administrative Law Judge, replied
affirmatively, explaining that in early February,
already employed elsewhere, he went to Respon-
dent's premises to visit a friend, and at that time he
was offered "the job by Widen, Jr." When asked
what exactly Widen said to him, Sylak testified that
Widen stated: "We are in a hole for mechanics,
would you like to come back to work here?" Sylak's
response was "No." 3
On these facts the Administrative Law Judge
erroneously concluded that because Widen failed to
mention that his offer was for the job previously held
by Sylak or that it included backpay or other benefits
to work did not provide an opportunity to Sylak to make "a considered
choice" in the matter . Sylak's immediate and unequivocal rejection of the
offer was obviously not influenced by any such lack of opportunity.
216 NLRB No. 29
MORO MOTORS LTD.
normally accruing to a reinstated employee , Widen's
offer was , for these reasons, inadequate as an offer of
reinstatement.4
At the outset, we note that Widen 's offer neither
stated nor implied any conditions or qualifications.
The record reveals that all Respondent 's mechanics
had the same job duties and conditions of employ-
ment, and that Sylak was employed as a mechanic
prior to his discharge . By indicating that Respondent
..was in a hole for mechanics" it is - evidence that
Widen 's offer was for a mechanic 's job. Moreover,
Sylak 's own testimony reveals that he understood
that Widen's offer was to his former job , and not just
a general inquiry about his interest in returning to
work for Respondent . We find , therefore, that the
only reasonable interpretation of Widen's offer is
that it was for the job previously held by Sylak.
Having found that Widen 's offer was clearly for
the job Sylak had previously held, we see no basis for
concluding that it did not also encompass all rights
and privileges previously held. If Sylak had any
doubts concerning whether the offer was for the job
he previously held, which he clearly did not, or
concerning whether the offer was without prejudice
to his previously held seniority, rights, and privileges,
he should have inquired. American Enterprises, Inc.,
200 NLRB 114 (1972); Centac Corp., 179 NLRB 313,
322 (1969). With respect to Widen's failure to
mention in his offer that it included backpay, the
short of the matter is that Respondent was under no
obligation to do so. Indeed , were a respondent
required to offer to an employee , allegedly dis-
charged for discriminatory reasons, reinstatement
with accrued backpay, the Respondent's right to
litigate the issue of whether the discharge was
unlawful would for all practical purposes be nulli-
fied. National Screen Products, Co., 147 NLRB 746,
747-748 ( 1964).
In view of the foregoing , we find that in early
February Respondent unconditionally offered Sylak
full reinstatement to his former job, which offer was
immediately and unequivocally rejected by Sylak
who did not ask for any time to consider the matter.
We further find that the offer of reinstatement to
Sylak tolled backpay and changed Sylak's status
from that of a discriminatorily discharged employee
to that of an unfair labor practice striker . According-
ly, we hereby modify the Administrative Law Judge's
recommended Order to comport with this finding.
4 The Administrative Law Judge characterized Widen 's statement as a
"general offer" and thereafter failed to mention Sylak in fn. 14 of his
decision wherein he explained why he couched his affirmative relief
provisions in conditional terms. In these circumstances it is clear that the
Administrative Law Judge impliedly found Widen's offer inadequate, and
ORDER
193
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 as
modified below and hereby orders that Respondent,
Moro Motors Ltd., Hempstead, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the, Administrative Law Judge's
recommended Order as so modified:
1. Strike the name "John Sylak" from paragraph
2(b).
2. Insert the following as paragraph 2(c) and
reletter the following paragraphs accordingly:
"Upon application, offer John Sylak immediate
and full reinstatement to his former position or, if
such position no longer exists, to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, dismissing, if necessar-
y, employees hired on and after January 9, 1974, and
make him whole for any loss of pay he may have
suffered because of the discrimination against him,
for the period from his discharge on January 8, until
the beginning of February,5 and also from a date 5
days after his unconditional application for reinstate-
ment to the date of Respondent's offer of reinstate-
ment, such backpay to be computed in the manner
set forth for the computation of backpay in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962)."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
ACTING CHAIRMAN FANNING, concurring in part and
dissenting in part:
I agree with my colleagues and I join them in their
affirmance of the Administrative Law Judge's
findings, as more fully set forth in their opinion, that
Respondent violated Section 8(a)(1) and (3) of the
Act; that the strike was an unfair labor practice
strike; and that, in the circumstances of this case, a
bargaining order is warranted. I also agree with my
colleagues' finding that Respondent's purported
offer of reinstatement on January 9 was inadequate,
for the reasons relied on by them, and for the
additional reasons herein set forth. Moreover, I agree
with my colleagues' finding that Respondent was
under no obligation to offer reinstatement with
accrued backpay, and that, therefore, insofar as
Respondent's alleged offer did not include accrued
backpay, it was not, for this reason, inadequate.
Nonetheless, unlike my colleagues of the majority, I
therefore ordered Respondent to offer him reinstatement and make him
whole for lost earnings.
5 We leave to the compliance stage of the proceedings the determination
as to the date in February at which backpay is tolled, inasmuch as the
record does not reflect said date with exactitude.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would affirm the Administrative Law Judge's conclu-
sion that Respondent's alleged early February offer
of reinstatement to Sylak was inadequate to both
absolve Respondent from further offering Sylak
reinstatement and to toll Respondent's backpay
obligation.
In finding that in early February Respondent
unconditionally offered Sylak full reinstatement,
which he rejected , my colleagues rely solely, as
indeed they must , on certain testimony by Sylak,
fully set forth in their opinion , since such testimony
constitutes the only evidence upon which such a
finding could conceivably rest . In my view , however,
this evidence falls woefully short of establishing an
offer and refusal of reinstatement which had the
effect of relieving Respondent of its statutory duty to
offer reinstatement to Sylak and tolling Respondent's
backpay obligation as found by my colleagues
herein.
It is now well established that the remedy of
reinstatement and backpay is vital to the Act, a
public right granted to vindicate the law against one
who has , as the Respondent here, broken it and
having as its object the discouragement of discharges
contrary to the policies of the Act. Phelps Dodge
Corp. v. N. L. R. B., 313 U. S. 177, 193 (1941); Lipman
Bros., Inc., 164 NLRB 850, 853 (1967), and cases
cited in footnote 17. Accordingly, an employer's
offer of reinstatement must be specific , unequivocal,
and unconditional before respondent will be found
to have thereby remedied the effects of its unfair
labor practices.
In the instant case , my colleagues have implicitly
assumed , erroneously I submit , that Widen's com-
ment to Sylak constituted an offer and thereafter
concluded that , indeed , such constituted an uncondi-
tional offer of reinstatement . I note , however, that
the subject of returning to work was put to Sylak as a
question , not as an offer . Thus Widen merely
inquired concerning Sylak's interest in returning to
work . As we have properly and repeatedly found,
however, a mere inquiry concerning a discrimiantee's
interest in returning to work does not constitute an
unconditional offer of reinstatement . American En-
terprises, Inc., supra; Dobbs House, a Division of
Squibb Beechnut, Inc., 182 NLRB 675, 682 (1970);
Rea Trucking Company, Inc., 176 NLRB 520 (1969);
Leeding Sales Co., Inc., 155 NLRB 755 (1965); J. E.
Plastics Mfg. Corp., 131 NLRB 299, 300 ( 1961),
footnote 4. Since I would therefore find that Sylak
did not receive an unconditional offer of reinstate-
ment , it is axiomatic that he was under no obligation
to make a decision about returning to work.
Accordingly, Sylak's negative response to Widen's
question is of no consequence . Leeding Sales Co.,
Inc., supra at 757; East Texas Steel Castings Compa-
ny, Inc., 116 NLRB 1336, 1344 (1956).
Even were I to assume arguendo that Widen's query
to Sylak was tantamount to an offer of reinstatement,
I would nevertheless find on at least two bases that it
was, in the circumstances of this case , not uncondi-
tional and therefore inadequate . Thus, as my
colleagues recognize , Sylak was employed elsewhere
in early February. Where, however , a discriminatee is
employed elsewhere at the time he is offered
reinstatement, he must be afforded an opportunity to
make a considered choice whether to retain his
present employment or to return to his former
employment, and, if the latter , to give reasonable
notice to his former employer . Dobbs House, supra;
Harrah 's Club, 158 NLRB 758, 759 ( 1966), fn. 1.
Clearly, no such opportunity was afforded Sylak
here . Indeed , by contending in its brief in support of
its exceptions that Sylak's "refusal to accept [Wid-
en's] offer to return to work changed his status to an
unfair labor practice strike ," Respondent in effect
concedes that it intended its alleged offer of
reinstatement to be accepted or rejected by Sylak
there and then , and, therefore , conversely, in effect
concedes that it did not intend to afford Sylak an
opportunity to make a considered choice whether to
retain his present employment or to return to
Respondent's employment . Having failed to afford
Sylak an opportunity to make such a considered
choice , I would find that Respondent's early Febru-
ary alleged offer of reinstatement was, for this reason
standing alone, not unconditional and therefore
inadequate.
In addition , the evidence discloses that when
apprised that 8 of its employees, including Sylak, out
of a unit of 12, had joined the Union, Respondent
unlawfully conditioned their continued employment
on their abandoning the Union. Upon their refusal to
do so , Respondent discharged them . In these
circumstances , when shortly thereafter Respondent
offered reinstatement to Sylak, it was obliged to
indicate to him that it had altered its policy of
opposition to the employment of individuals seeking
union representation . Art Metalcraft Plating Co., Inc.,
133 NLRB 706, 707 ( 1961), enfd . 303 F.2d 478 (C.A.
3, 1962); Dobbs House, supra. Having failed indicate
to Sylak, on either January 9, or in early February,
that its policy with respect to the union adherence of
its employees was in any way altered , I would find
that the alleged offers of January and early February
were , for this reason standing alone , not uncondi-
tional and therefore inadequate.
On the basis of all the foregoing, I would order
Respondent to unconditionally offer Sylak full
reinstatement and make him whole for any loss of
MORO MOTORS LTD.
earnings until such time as it has tendered such an
offer.
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 International Industrial Production
Employees Union, or any other labor organiza-
tion.
WE WILL, to the extent we have not already
done so, give the employees named hereunder
their old jobs back and we will pay them for the
earnings they lost as a result of their having been
discharged. These employees are:
William Baffi Julio Gomez
John Carr Samuel McDonnaugh
James Gaffney Leonard Rossello
James Sherman'
WE WILL, upon application, offer John Sylak
full reinstatement to his former position or, if
such position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, dismissing,
if necessary, all persons hired on or after January
9, 1974. WE WILL make Sylak whole for any loss
of pay he may have suffered by reason of the
discrimination against him.
WE WILL recognize and bargain, upon request,
with International Industrial Production Employ-
ees Union as the exclusive bargaining representa-
tive of all employees included in the description
below about their wages , hours, and working
conditions and, if agreement is reached, we will
sign such agreement. The employees included
are:
All mechanics, service department and parts
department employees, including porters
and new car make ready men employed at
our service shop and showroom in the town
of Hempstead, New York, excluding office
clerical employees, sales employees and all
supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with the rights of employees to engage in
organizational activities or in collective bargain-
ing, or to refrain from such activities.
MORO MOTORS LTD.
DECISION
STATEMENT OF THE CASE
195
ARNOLD ORDMAN , Administrative Law Judge: On
January 10 and 18 , 1974, the Charging Party, herein called
the Union, filed unfair labor practice charges against
Respondent. Pursuant to these charges a complaint issued
on April 3, 1974, alleging violations of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended.
Specifically , the complaint recited that Respondent: (1)
violated Section 8(a)(l) of the Act by interrogating its
employees concerning their union membership , activities,
and sympathies ; (2) violated Section 8(a)(3) and (1) of the
Act by discharging eight of its employees and by thereafter
refusing to reinstate six of the eight, all because of their
union and other protected concerted activities; and (3)
violated Section 8(a)(5) and (1) of the Act by refusing to
bargain with the Union as the exclusive representative of
its mechanics , service department, and parts department
employees , comprising an appropriate unit . Respondent's
answer to the complaint, dated April 11, 1974, denied the
commission of these unfair labor practices and denied
further an additional allegation of the complaint that a
strike of Respondent 's employees beginning on or about
January 8 , 1974, constituted an unfair labor practice strike.
Hearing on the controverted issues was conducted before
me in Brooklyn , New York, on May 7, 8, and 9, 1974.1 At
the close of the hearing General Counsel and Respondent
submitted oral argument , General Counsel also submitted
a written brief thereafter.
Upon the entire record , upon my observation of the
witnesses , and after due consideration of the arguments
and brief , I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is a New York corporation with its principal
office and place of business at 306 Main Street, Hemp-
stead, New York, herein called the service shop, and
another place of business at 280 Main Street in Hemp-
stead, New York, herein called the showroom. Respondent
is engaged at these locations in the retail sale, distribution,
and repair of new and used automobiles and related
products. During the past year, a representative period,
Respondent derived from its business operations gross
revenues in excess of $500,000, and received from out-of-
state sources goods and products valued in excess of
$50,000. The complaint alleges, Respondent admits, and I
find that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The pleadings likewise establish and I find, that the Union
is a labor organization within the meaning of Section 2(5)
of the Act.
Jurisdiction is properly asserted in this proceeding.
I A preheating conference was held before Admimstrative Law Judge
Charles W. Schneider on April 22, 1974 The brief report of that conference
- no evidence was submitted - is incorporated in the record of this
proceeding.
1% DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
A. Background
Virtually all the events here relevant occurred during
January 1974. At the beginning of that month organiza-
tional activity began among Respondent's employees.
Within a few days a number of the employees signed
authorization cards designating the Union as their bargain-
ing representative . On January 7 the Union filed with the
Board a petition for certification as bargaining representa-
tive for a unit of Respondent's employees consisting of
mechanics and service and parts department employees.
Respondent received a copy of that petition on January 9.
On January 8, however, Respondent held two meetings
with its employees . Immediately following these meetings
there were additional verbal interchanges between repre-
sentatives of management and employees . Involved in
these interchanges , also, was Lawrence Litman, a union
official . During the course of the January 8 meetings and
the ensuing conversations , Respondent, according to
General Counsel , interrogated its employees concerning
the Union, discharged eight employees because they were
union adherents , and unlawfully refused to bargain with
the Union . Respondent denies that it engaged in these
unfair labor practices and adduced sharply controverting
testimony as to the events on January 8.
Determination of the issues in this case turns largely on
resolutions of credibility as to what actually happened on
January 8. The pertinent evidence in this regard, together
with other evidence not in dispute, is set forth hereunder.
B. The Evidence
1. Respondent's supervisory structure; makeup of
the workforce
During the period of time here under consideration,
Respondent's supervisory hierarchy was headed by Mort
Widen, Sr., president of the Company. Mort Widen, Jr.,
was secretary-treasurer . Manuel Koufman , whose role in
these events is pivotal , was general consultant, adviser, and
administrator of Respondent 's business, having been
retained by Respondent to act in that capacity in October
1973. Koufman was also on Respondent 's board of
directors . Michael Karlin was for a. while service manager
in the service shop and was later promoted to general
manager in that shop ; Karlin's employment with Respon-
dent ended on or about January 22, 1974.
Included in Respondent 's total working complement
during this period were about a dozen employees classified
as mechanics and service and parts department employees.
Except for William Baffi , a mechanic in the new-and-used
car department , all of these employees worked in the
service shop at 306 Main Street . Baffi spent most of his
working time in the showroom location at 280 Main Street
with only an occasional work stint in the service shop.
Respondent admitted at the hearing that the foregoing
grouping constituted an appropriate unit for purposes of
collective bargaining. Specifically , the complaint alleges,
2 Incorrectly designated in the complaint as John Sylack.
Respondent admits, and I find, the following unit to be
appropriate.
All mechanics, service department and parts depart-
ment employees of Respondent, including porters and
new car make ready men, employed at its service shop
and showroom, exclusive of office clerical employees,
sales employees, and all supervisors as defined in
Section 2(11) of the Act.
Respondent and General Counsel are also in agreement,
with one exception , as to the individuals who comprised
the appropriate unit during the time here in issue. These
individuals, 11 in number, are William Baffi , John Carr,
Julio Gomez, Samuel McDonnaugh , Leonard Rossello,
James Sherman , John Sylak ,2 Bernard Woell, Henry
Mason , Stuart Richardson , and Jessie Brown . The first
seven named in this list are all mechanics and are alleged
in the complaint to have been discriminatorily discharged
on January 8 in violation of Section 8(a)(3) and ( 1) of the
Act.
The parties are in dispute as to the status of James
Gaffney, the eighth employee alleged to have been
discriminatorily discharged . General Counsel alleges that
James Gaffney is a rank-and-file employee and is properly
included in the appropriate unit, raising the complement of
that unit to 12. Respondent contends that Gaffney is a
supervisor within the meaning of the Act and hence
ineligible for inclusion in the appropriate unit.
James Gaffney was hired by Michael Karlin in July
1973. His job was that of service writer . As service writer,
Gaffney's job was to meet customers , generally at the
entrance to the service shop , listen to their requests and
complaints concerning their vehicles, and write out the
appropriate repair orders which were subsequently turned
over to mechanics to do the necessary work. Gaffney
would also price out the work from schedules prescribed in
a flat rate book or other appropriate publication.
Repair orders were normally posted on a rack in the
service shop. The method of assignment of the repair
orders to the mechanics was routine . Usually the first
qualified mechanic who was available for assignment took
or was given the repair order in the sequence in which it
was posted . A repair order was occasionally assigned to a
specific mechanic by name or where a mechanic was called
on because he was the one who had earlier done work on a
car and a complaint was made about that work. Aside
from these purely routine matters , out-of-order assign-
ments were made by Karlin , and only rarely by Gaffney in
Karlin's absence and pursuant to the latter's instructions.
Similarly, Gaffney occasionally ordered supplies and
materials for the service shop but again only at Karlin's
direction.
As to Gaffney's relationships with the employees
generally, the testimony was uniform that Gaffney neither
had nor exercised the power to hire, fire , lay off, suspend,
recall , transfer, promote or reward any employee or even to
make effective recommendations in that regard . Authority
in these respects was vested , generally, in Michael Karlin.
Likewise , Gaffney did not have authority, and did not
MORO MOTORS LTD.
exercise any, with respect to granting overtime, maintain-
ing order, or safety in the shop, with respect to overseeing
the work of employees, instructing or reprimanding them
in that regard, or with respect to reporting as to their
performance or lack of it, or keeping any records in that
regard . It was clear to the employees that their orders came
from Karlin and that it was to Karlin they were to report if
they wanted overtime or time off or wanted to call in sick.
Gaffney played no role in these respects.
Gaffney did not entertain grievances from employees.
When management conducted meetings among its officials
including meetings dealing with labor relations matters,
Gaffney was not invited to, and did not attend, such
meetings . In sum , Gaffney played no role, other than that
of service writer, except on those occasions when Karlin
was absent, and even then such extra functions as he
performed were performed pursuant to Karlin's directions
and instructions.
Gaffney's status did differ from the mechanics in one
respect. They were paid on a piece-work basis and their
income was determined by the amount and type of work
they did. Gaffney, however, like Karlin, was on a salary
status . Unlike Karlin, though, Gaffney's salary did not
include any share of Respondent's net profits. It was
based, rather, on a $175 weekly wage plus a 1-percent
commission on warranty work and overtime - which only
Karlin, not Gaffney, could authorize - which added an
average of $40 to $60 a month to Gaffney's base salary.
Indeed, Gaffney's income from his work was less than that
earned by the mechanics generally. On the other hand,
Gaffney did receive a Christmas bonus - the record does
not reveal the amount - which the mechanics did not
receive.
Significantly, however, Respondent did not in its payroll
records list Gaffney under its listing for salaries of
supervisors, a listing in which Karlin was included. Rather,
Gaffney was listed with other employees in a section under
the heading "other wages and salaries." Nor does it
appears that Respondent's work force was ever informed
by written notice, oral notice, or otherwise that Gaffney
was a supervisor.
On the basis of the foregoing evidence, essentially
uncontroverted, and applying the criteria of supervisory
status set forth in Section 2(11) of the Act, I find that
James Gaffney did not have supervisory status within the
meaning of the Act and is properly included within the unit
hereinbefore stipulated by the parties and found by me to
be appropriate.
2. The beginning of organizational activity
Following some preliminary discussion among a few of
Respondent's employees concerning unionization, Julio
Gomez, a mechanic in Respondent's employ, arranged for
a meeting at his home on the evening of January 2 and
arranged also for Lawrence Litman, a union official, to be
present. Gomez and Carr, also a mechanic, notified
employees of the meeting. Present at the meeting were
mechanics Gomez, Carr, Sherman, Baffi, Rossello and
3 There is also testimony in the record that employees were told that if
recognition were granted by Respondent , resort to an election would not be
required.
197
service-writer Gaffney. Litman, after some talk about
union benefits and recognition, distributed union authori-
zation cards which read:
I hereby apply for membership in [Respondent ] Union,
and authorize and designate the Union to represent me
for collective bargaining with my employer.
Litman explained that the cards would be used to support
a petition to the Board for certification of the Union.3
Of the six employees present at the January 2 meeting,
all but Sherman signed cards that evening and returned
them to Litman. Within the next few days Sherman, Sylak,
and McDonnaugh also signed cards, which were duly
turned over to Litman. A ninth card was signed by
employee Richardson on January 8 and was also given to
Litman.
In the meantime on January 7 the Union filed a petition
with the Board's Regional Office asking for certification as
bargaining representative for the employees in the support
of the petition. Richardson's card, obtained January 8, was
submitted later. Respondent received a copy of the petition
for certification on January 9.
3. The meetings of January 8; the discharges
On January 8, the day following the filing of the petition,
Respondent's business administrator, Manuel Koufman,
held two meetings with Respondent's mechanics. One
meeting, at which lunch was provided, was held at noon;
the second meeting at 4 p.m. Both meetings were held in
Koufman's office, located in the service shop at 306 Main
Street. The same group of mechanics was present at both
meetings, specifically, Gomez, Carr, Baffi, Sherman, Sylak,
McDonnaugh, and Rossello, seven in all. Gaffney, a
service-writer, was not invited to, and did not attend, either
meeting.
Manuel Koufman spoke for management at both
meetings. At the first meeting he was the sole representa-
tive of management present. At the second meeting
Koufman was joined by Mort Widen, Jr.
As already noted, there is sharp contradiction in the
record as what actually transpired at these two meetings
and in the conversations which ensued immediately
thereafter.
Five of the mechanics present testified as to these
matters; namely, Sherman, Sylak, Baffi, Carr, and Gomez.4
The pattern of their testimony is essentially consistent. It
reveals that Koufman opened the noon meeting by
announcing that he was going to discuss some changes to
be made in the shop. Some of the mechanics had
anticipated this situation and had determined that, to be
fair, Koufman should be informed at the outset that they
had enlisted in the Union. Accordingly, virtually at the
outset of Koufman's remarks, Gomez interjected that all
the employees present had signed union authorization
4 The other two mechanics present , Rossello and McDonnaugh , did not
testify. General Counsel explained that they had not responded to subpenas
he had served on them.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards and wanted the Union to represent them . Koufman
was told the name of the Union .5 Koufman then spoke at
length about his prior experiences , about good and bad
unions, and then advised the employees that he would
check into the union they had selected and let them know
his decision.
The mechanics were assembled in Koufman's office
again at 4 p.m. This time Mort Widen, Jr., was also
present . According to the mechanics , Koufman told them
at this meeting that he had checked into the Union and
would not accept it. Koufman stated further that if the
employees wanted the Union they could either quit
forthwith or give 2 weeks' notice. When Gomez told
Koufman the employees would not quit , Koufman replied
that they had no choice. Carr then took a quick informal
poll of the employees present and they reaffirmed their
desire to stick with the Union . Upon this demonstration
Carr asked Koufman if this meant they were all fired and
Koufman responded affirmatively that they were all fired.
The employees then left Koufman 's office to proceed to
their working spaces and pick up their tools.
As the employees left Koufman's office they advised
Karlin and Gaffney who were standing nearby that they
had been fired for joining the Union. Karlin thereupon
approached Koufman and Widen who had followed the
men out of the office and, as Karlin testified , he asked
Koufman and Widen what was going on. They told Karlin
that all of the men had been fired for joining the Union.
Karlin testified further that he then asked "What about
Gaffney? He wants to be in the Union, too." Koufman
replied , according to Karlin , "If he wants a union, he
goes."
Gaffney testified that he spoke to Widen on this
occasion. Gaffney's testimony, corroborated by Baffi, is
that he asked Widen if the men were fired for joining the
Union, that Widen confirmed that fact; that he then told
Widen that he also had joined the Union and whether that
meant he also was fired ; and that Widen said "yes."
While these events were transpiring, Lawrence Litman,
the union representative who was being kept apprised by
telephone of the day's developments, was on his way to the
service shop. Litman arrived at or about 4:30 p.m. The
employees were still at the shop but Koufman and Widen
had already withdrawn from the area . Litman, in the
presence of the employees , asked to see the owner.
Presently Widen Jr. appeared . Litman introduced himself
and asked why the men were being fired . Widen absented
himself for a brief interval , then returned and asked
Litman to accompany him to the office. Litman refused to
do so unless the mechanics accompanied him. Thereupon
Widen left and returned with Koufman and a conversation
ensued between Litman and Koufman in the presence of
the employees.
In this conversation , according to the testimony of the
employees and Litman, Litman identified himself to
Koufman , told Koufman the employees had signed up
with his Union and asked for recognition. Koufman
replied, "You do what you have to do." Litman then asked
Koufman why the employees were fired and whether it was
S There was some testimony that Koufman asked the name of the Union.
Gomez testified initially that Koufman also inquired as to why the
for joining the Union. Koufman said he did not have to
answer to Litman . Litman then suggested to Gomez that
Gomez ask Koufman why he had been fired. When Gomez
did so, Koufman said it was for stealing. Koufman then
told Carr in response to the latter 's query that Carr was
discharged for conspiring to help Gomez steal . Koufman
refused to answer any further inquiries and left the scene.
The employees left also. There was no further communica-
tion between Respondent and the Union.
As noted, the evidence adduced by Respondent concern-
ing the events of January 8 was in sharp contradiction to
that presented by the witnesses for General Counsel.
Manuel Koufman was Respondent's principal witness. On
direct examination , Koufman explained that the noon
meeting on January 8 had been arranged a week earlier
and that the purpose of the meeting was to discuss a
proposed change in insurance coverage for the employees.
According to Koufman the meeting was very short in
duration because Gomez as spokesman for the employees
rejected the proposed change . Koufman denied that the
Union was mentioned at the first meeting or that he had
any knowledge of the Union at that time.
Koufman testified that the second meeting , the 4 p.m.
meeting, was called because he had decided to discharge
Gomez, Carr, and Baffi and wanted Mort Widen, Jr., to
confirm his decision and be present when he carried it out.
Koufman stated that as soon as he started to announce his
decision to the employees , Gomez interrupted and in-
formed him that the men had joined a union and that
Koufman would have to talk to a third party. Koufman
said he would talk only to the employees and stated that he
was firing the fellows who were connected with stealing
parts . Gomez again interjected that the mechanics had
joined a union and Koufman protested that this was the
first he had heard of a union . Koufman went on to explain
that he was firing the employees caught stealing and
wanted the other employees to be aware of the situation.
Koufman acknowledged that he then "lectured" the
employees for being unappreciative and rude . The employ-
ees persisted in their demand that he deal with the Union.
Koufman replied , again at some length , that he had been
dealing with unions all of his life. According to Koufman,
all the employees present "snickered, sneered and then
left." Koufman denied that the name of the Union was
even stated.
According to Koufman, the next event that occurred of
relevance here was that he was informed by Mort Widen,
Jr., about an hour after the meeting , that a "guy" whom
Widen described as a "strong-arm" man was waiting
outside the office to see Koufman . Koufman, who
described the same individual as "quite amicable," said
that the individual introduced himself, identified himself as
being from the Union, said he represented the men and
asked about the men being fired . Koufman testified that he
replied , "What the hell business is it of yours?" and refused
to talk to Litman, the individual in question. According to
Koufman, Litman then told the men not to worry because
the Union would take care of them and to pack up their
employees had joined the Union but , confronted with a contrary statement
in an earlier affidavit he had executed , retracted that testimony.
MORO MOTORS LTD.
tools and leave. The employees, Koufman testified, did
leave.
Koufman's testimony on cross-examination as to the
events of January 8 varied somewhat from that he gave on
direct examination . Confronted with inconsistencies,
Koufman explained in several instances that his recollec-
tion of precisely what was said or when was imprecise.
However , in substance he adhered to the version he gave
on direct examination.
The only other witness presented by Respondent was
Mort Widen, Jr. As noted, Widen was in attendance at the
second meeting on January 8. According to Widen,
Koufman and he had already discussed letting three of the
mechanics go . According to Widen, the meeting was very
brief. Koufman started to announce the impending
discharges when Gomez got up and made a statement
which, Widen testified, he interpreted as being "You can't
do this because we are joining a Union." According to
Widen, Koufman never got the chance to name the
individuals being discharged. The mechanics walked out
and Widen followed them. Widen denied telling Gaffney
he was fired . He admitted calling Koufman from his office
to meet Lawrence Litman.
4. Analysis and findings as to the events on
January 8
The glaring discrepancies in the respective versions of
the events on January 8 given by General Counsel's
witnesses on the one hand and by Koufman and Widen on
the other need no amplification . The question is one of
credibility.
If the testimony of Koufman , supplemented in part by
that of Widen, is credited, then one must assume that the
testimony of the five mechanics supplemented by the
testimony of supervisor Karlin and Union Official Litman
was wholly contrived . Conversely, if General Counsel's
witnesses are credited, it follows that the testimony of
Respondent 's witnesses is suspect.
Demeanor is a factor , of course , in such a determination.
The testimony of the five mechanics and, in turn, the
testimony of Karlin and Litman present, with minor
differences, a consistent pattern. To believe that in each
instance the testimony of each of these witnesses was
contrived to present the same essential pattern throughout
is improbable ; it strains credulity.
On the other hand , except for the events at the second
meeting and the events immediately thereafter , Koufman
was the sole witness who presented a different version of
the relevant happenings . Observation of Koufman and
scrutiny of his testimony satisfies me that Koufman's
testimony, though articulate , was verbose , evasive, and
frequently unresponsive to the questions propounded
unless and until pressed. Moreover, as is apparent from
examination of the record Koufman's testimony on direct
examination and on cross-examination was on occasion
inconsistent with respect to the sequence of events and
precisely what was said at the meetings. Koufman,
6 It is not clear from Koufman 's testimony on this aspect of the matter
whether he did or did not mention the names of the employees he was
discharging at this meeting . Koufman's testimony was likewise inconsistent
199
confronted with these inconsistencies , pleaded uncertainty
of recollection.
Widen testified only as to the second meeting on January
8 and as to some of the matters ensuing immediately
thereafter. As to the second meeting Widen testified that
although Koufman had intended to and started to name
the three individuals he was going to discharge for stealing,
Widen's recollection was that Koufman never got the
chance because of Gomez' interruptions.6 In this posture
of the evidence, Respondent's contention that only three
men were fired and that the remaining employees were not
fired but walked out in protest against the firing of the
three is quite suspect.
As to the events following the second meeting, Koufman
and Widen proffered testimony which was also in striking
variance with the testimony of Litman and the employees
who were present on the scene.
On the basis of my observation of the witnesses, on an
evaluation of their testimony, and on the surrounding
circumstances, I find and conclude that the pattern of
events occurring on January 8 was basically as described
by General Counsel's witnesses and that the testimony of
Koufman and Widen, to the extent it differs, cannot be
credited.
Specifically, I find that Koufman was apprised at the
first meeting on January 8 that the employees present had
joined the Union; that he announced at that first meeting
that he would check out the Union and let the employees
know; that at the second meeting he told the employees
that he would not accept the Union and gave them the
ultimation of abandoning the Union or quitting their
employment ; and that when the seven employees present
indicated that they would neither abandon the Union nor
quit their employment Koufman discharged them. I find
further that immediately following that second meeting
when Gaffney made known his adherence to the Union he
was likewise discharged.
5. The evidence relating to Gomez, Carr, and
Baffi and their complicity in stealing parts
Respondent contended throughout the instant proceed-
ing that it discharged only Gomez, Carr, and Baffi; the
reason for that action was the complicity of three
employees in stealing parts; and the remaining employees
involved were not discharged but walked out in protest
against the dismissal of the three named employees. While
the findings heretofore made would appear to be diaposi-
tive of this contention, the pertinent evidence relating
thereto is summarized herein.
On December 27, 1973, Gomez asked Service Manager
Michael Karlin for permission to bring his wife 's car into
the service shop for repairs because the spark plugs and
points which he had purchased from Respondent a month
or two earlier had gone bad. Karlin granted the request.
Under company policy then current, employees were
permitted this privilege provided the work was done on
their own time. Gomez then inquired of Karlin whether the
plugs and points , made by Fiat, would be covered by a
at precisely what point in the meeting Gomez raised the subject of the
Union.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warranty. Gomez explained that he did not have the
receipt for his previous purchase and Karlin told him the
parts would be listed on a customer warranty repair order
and Gomez could go ahead and obtain the parts. The
effect of listing the parts on a warranty repair order is that
Fiat would cover the cost at no expense to Respondent or
to the customer whose repair order was utilized.
Gomez brought the car into the service shop. He
obtained the necessary parts, the value of which was about
$12, from Richardson, the parts department employee,
who had been instructed by Karlin to furnish them to
Gomez. The cost for the parts was then applied to a
warranty repair order for a customer named Thibeault and
Karlin directed Gaffney to make the necessary entries on
that order.
Gomez began working on the car at 6:30 p. m. on his own
time . He was assisted by Can who, also on his own time,
did the tuneup work and worked on the distributor. Carr
had nothing to do with obtaining the parts. Baffi's
connection with the incident under consideration is that he
had done the work which initially appeared on the
Thibeault repair order . Baffi had nothing to do with the
entry of the parts for the Gomez car on that repair order
and had nothing to do with the procuring or installation of
the parts in the Gomez car.
While Gomez and Can were working on the car Manuel
Koufman and Mort Widen, Jr., came over and asked
Gomez what he was doing .? Gomez explained that he was
working on his wife 's car pursuant to permission granted
him by Karlin . When Koufman asked where he had gotten
the parts, Gomez told him he had gotten them from the
parts department . According to Koufman , he was satisfied
at that time from his own observation and that of Widen
that Gomez had been "caught redhanded ." Koufman's
conclusion was that Can who was working with Gomez
was also involved and that Baffi who had had custody of
the Thibeault repair order on which the Gomez parts were
subsequently entered was equally guilty of complicity.
In any event , it is undisputed that later that night,
December 27, Koufman called Karlin at home and asked if
he knew that Gomez was working on a car and taking
parts. Karlin testified that he did know and would explain
the situation to Koufman the next morning . Karlin
testified further that he did inform Koufman and Widen
the next morning , December 28, that he had granted
Gomez permission to bring in his car and replace the plugs.
After some further discussion , it was decided that Gomez
be required to pay for the plugs unless he produced a
receipt for them. Gomez was unable to locate his receipt
and did later pay for the parts.
There is considerable conflict in the testimony as to
whether within the next few days Koufman did or did not
tell Gomez he would be fired and whether Koufman did on
a date subsequent to the January 8 discharges instruct
Karlin to fabricate a record to justify the discharges. Were
resolution of these conflicts required, I would be inclined
to credit the testimony of Karlin and the employees
concerned rather than the testimony of Koufman and
Widen. However, more significant in my view is that
notwithstanding Koufman 's assertion that he was satisfied
on December 27 that he had caught Gomez "redhanded"
and notwithstanding Koufman 's professed - and I believe
genuine - concern about the disappearance of parts from
Respondent's inventory, the only action taken at the time
was to require Gomez to pay for the parts he used unless he
produced a receipt . The discharge of Gomez and his
alleged accomplices did not occur until January 8, some 12
days later, in a situation where the primary topic under
consideration was the affiliation of all the employees
present with the Union.
Persuasive in this regard also, although concededly not
controlling, is a decision issued by a referee of the
unemployment insurance section of the New York State
Department of Labor, after hearing, allowing claims of
Gomez, Baffi, and Gaffney for unemployment benefits,
claims contested on the ground , inter alia, that the
claimants had engaged in misconduct .8 The referee's
decision, here granted in part, is self-explanatory:
OPINION : I find that the claimants did not commit
misconduct nor provoke their discharge within the
meaning of the Unemployment Insurance Law. Credi-
ble evidence is lacking that Gomez took parts without
payment therefore [sic] and that the other two
claimants entered into a conspiracy to effectuate such
purpose . I find that their jobs terminated as a result of
their joining a particular union.
Additional doubt is cast on Respondent's assertion that
it discharged Gomez , Can, and Baffi for stealing when it is
noted that Karlin who candidly acknowledged that he
authorized the doing of the work and the taking of the
parts was not disciplined at all. In fact , shortly thereafter
he received a raise . His later discharge, on January 22, took
place after he had already given a 2-week notice that he
was leaving Respondent's employ.
On all the evidence of record I am satisfied , and find,
that the claim that Gomez , Carr, and Baffi were discharged
on January 8 because of their complicity in a theft of
company parts the previous December 27 was a pretext to
conceal the antiunion motivation for the discharge. I find
further that these three individuals , like their five fellow
employees, were all discharged because they refused to
comply with Koufman's ultimatum to leave the Union.
6. The events following the discharges
There is no dispute as to the events following the
discharges. The eight discharged employees together with
Litman agreed before leaving the plant to set up a picket
line the following morning. This was done . The signs borne
by the pickets bore the names of Respondent and the
Union and indicated that an unfair labor practice lockout
was in progress . There was no violence or other miscon-
7 Koufman testified that he was alerted by Stuart Richardson, the parts possible to remedy this situation which was a source of serious financial
department employee, that Richardson had issued certain parts and was detriment in the operation of Respondent's business.
suspicious about the circumstances of the request . The record is clear that s Carr also obtained unemployment benefits . So far as appears, his claim
missing parts or pilferage of parts from the parts department was a major was not contested.
concern of Respondent and that Koufman had determined to do everything
MORO MOTORS LTD. 201
duct on the picket line which was maintained for about 1-
1/2 to 2 months after its inception on January 9.9
About the beginning of February Sylak , already em-
ployed elsewhere , visited Respondent's place of business.
While there, he was asked by Widen Jr. whether he would
like to come back to work as Respondent was in a hole for
mechanics . No mention was made by Widen that this
generalized offer was to the job Sylak previously held or
that it included backpay or other benefits normally
accruing to a reinstated employee . McDonnaugh and
Rossello, on the other hand, were admittedly reemployed
on or about January 23, 1974.
C. Concluding Findings
As noted, the complaint alleges that Respondent violated
Section 8(a)(l) of the Act by interrogating its employees
concerning their union membership , activities, and sympa-
thies; violated Section 8(aX3) and (1) of the Act by
discharging eight employees because of their union and
other protected activities ; and violated Section 8 (aX5) and
(1) of the Act by refusing to bargain with the Union as
exclusive representative of its employees in an appropriate
unit. The complaint additionally alleges that the strike of
the employees beginning on January 9, 1974 , was an unfair
labor practice strike . At the hearing and in the brief
subsequently filed , General Counsel urged that because of
the flagrant nature of Respondent 's unfair labor practices,
a bargaining order should be incorporated in any remedy
granted herein under the authority of N.LR.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 ( 1969).
Turning first to the claim that Respondent independent-
ly violated Section 8 (axl) of the Act by interrogating the
employees concerning their union sympathies, I find
inadequate evidence to support that claim . The evidence
does warrant a finding that Koufman did, at the first
meeting on January 8 , ask the employees the name of the
Union they had joined . But this question followed on the
heels of Gomez' announcement that the employees had
joined the Union and wanted the Union to represent them.
Under these circumstances it was quite natural for
Koufman to inquire what Union they had joined. To label
such an inquiry in such circumstances as coercive
interrogation violative of Section 8(a)(1) of the Act is
manifestly unwarranted . Indeed, General Counsel recog-
nizing the inadequacy of its proof in this respect seeks to
buttress its allegation by citing testimony that Koufman
also asked on this occasion why the employees wanted to
join the Union . However, the sole support for such a
finding derives from direct examination of Gomez who on
cross-examination retracted that testimony.
I conclude , therefore, that the preponderance of the
evidence does not support the allegation of the complaint
that Respondent interrogated its employees in violation of
Section 8(axl) of the Act.to
9 Gomez testified that on one occasion while he was on the picket line
Koufman accused him of threatening employees and offered to take him
out and "thrash" him. General Counsel acknowledged at the hearing that it
was not alleging that this conduct by Koufman constituted a threat violative
of the Act but did suggest that "it would go to the propriety of bargaining
10 The complaint contains no allegation , and General Counsel at the
hearing expressly disclaimed any contention, that Respondent threatened
Turning now to the allegation of the complaint that
Respondent discriminatorily discharged the eight employ-
ees named in complaint because of their Union and other
concerted activities in violation of Section 8(a)(3) and (1)
of the Act, I conclude on the basis of the evidence already
summarized herein and the subsidiary findings made in
that connection (see sections ii A, B1, B3, B4, and B5) that
the allegation in question is adequately supported in the
record. Specifically, I find that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging mechanics
Baffi, Carr, Gomez, McDonnaugh, Rossello, Sherman, and
Sylak, and service-writer Gaffney. I further find that the
strike which followed on the heels of these discharges was
in protest against that action and constituted an unfair
labor practice strike.
Remaining for consideration is the allegation of the
complaint that Respondent violated Section 8(a)(5) and (1)
of the Act by refusing, since on or about January 8, 1974,
to recognize and bargain with the Union as the exclusive
representative of its employees in an appropriate unit. In
its brief to me, General Counsel urges that a finding of
such a violation is fully warranted on the evidence in this
case. Alternatively, General Counsel urges that even in the
absence of an 8(a)(5) finding an order to bargain should
issue because Respondent's conduct in discharging the
employees was "so flagrant" and "so undermined the
Union's status ... .
Under well-settled Board authority a precondition to a
finding of either an unlawful refusal to bargain or an order
to bargain absent such finding is that the Union represent
a majority of the employees in an appropriate unit. As
already noted, Respondent stipulated and I have found
that the unit previously described herein is appropriate
(section II, B, 1 , supra). The only disputed issue in that
regard relates to James Gaffney who, Respondent con-
tends, is a supervisor and hence ineligible for inclusion in
the unit." For reasons already stated, I have found that
Gaffney did not have supervisory status. Absent such
status, Gaffney is properly included in the appropriate
unit.
The unii therefore consisted of 12 employees. As of
January 7, 8 of these 12 employees (Gaffney was one of the
8) had signed authorization cards which on their face
unequivocally designated the Union as the bargaining
representative of the signatories. On that day, January 7,
the Union filed its petition with the Board asking for
certification as bargaining representative for the employees
in the appropriate unit. A ninth employee, Richardson,
signed a union authorization card the following day,
January 8.
It is obvious, therefore, that a clear majority of the
employees comprising the appropriate unit had designated
the Union as their bargaining representative when Kouf-
man on the afternoon of January 8 announced that he
employees in violation of Sec . 8(axl) of the Act. Accordingly, although
Gomez testified that he was threatened by Koufman on one occasion while
Gomez was on the picket line , that matter was not fully litigated and I
predicate no finding on that testimony.
11 Respondent at the opening of the hearing raised a similar contention
with respect to employee Bernard Woell. Later in the hearing, however,
Respondent stipulated that Woell was properly included in the appropriate
unit.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not accept the Union and discharged the union
adherents en masse. Respondent challenges the validity of
the signed authorization cards on the ground that they
were obtained on the basis of representations that they
would be used to obtain a Board election . Examination of
the record does not persuade me that the employees were
told that the sole purpose of the cards would be to obtain
an election . The fact that they were used, and intended to
be used, for the purpose of filing a petition for certification
does not destroy their efficacy as valid designations of the
Union as bargaining representative . I find that they were
valid designations .12 Moreover, were there any doubt in
this regard, such doubt would have been effectively
dissipated when the seven employees present at the
afternoon meeting of January 8 unmistakably demonstrat-
ed to both Koufman and Widen Jr. their continued
adherence to the Union in the face of an ultimatum to
abandon the Union or quit their employment. Gaffney,
immediately following the January 8 afternoon meeting,
joined his seven fellow employees in that position.
Respondent also denies that it received a request to
recognize and bargain with the Union . Apart from the fact
that the filing of a representation petition itself suffices to
constitute a demand and continuing request for recogni-
tion (Tri-County Tube, Inc., 194 NLRB 103, 105 (1971))
and authorities there cited), I have previously found that
explicit requests for recognition were made by the
employees at the January 8 meetings and by Union Official
Lawrence Litman immediately thereafter.13
In view of this showing coupled with the mass discharge
of the eight declared union adherents, the necessary
ingredients for a finding of refusal to bargain in violation
of Section 8(aX5) and (1) of the Act would appear to be
present . But in view of the Board's recent declaration in
Steel-Fab, Inc., 212 NLRB 363 (1974) a finding of an
8(aX5) violation "serves no real purpose" here . The short
of the matter is that the Union did represent a majority of
the employees . Certainly, it needs no extended discussion
to demonstrate that the mass discharge of the eight
declared union adherents - two-thirds of the complement
comprising the appropriate unit - because of their refusal
to abandon the Union would have such an impact upon
the employees as to make highly unlikely - if not preclude
altogether - the holding of a fair and free election.
Accordingly, on settled authority the imposition of a
bargaining order to remedy the unfair labor practices here
found is amply justified without reliance on any prelimi-
nary finding of an unlawful refusal to bargain . N.LR.B. v.
Gissel Packing Co., supra,' Steel-Fab, Inc., supra.
Accordingly I make no finding here of a Section 8(aX5)
violation. On the other hand , I do find and 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. See authorities cited supra
CONCLUSIONS OF LAW
1. All mechanics, service department and parts depart-
ment employees of Respondent , including porters and
new-car make-ready men, employed at its service shop and
showroom in the town of Hempstead , New York, exclusive
of office clerical employees, sales employees and all
supervisors as defined in Section 2(11) of the Act constitute
a unit appropriate for purposes of collective bargaining.
2. James Gaffney does not have supervisory status
within the meaning of Section 2(11) of the Act and is
properly included as an employee within the unit found
appropriate herein.
3. The Union during the period here relevant represent-
ed a majority of the employees in the unit found
appropriate herein.
4. By discharging employees William Baffi, John Carr,
James Gaffney, Julio Gomez, Samuel McDonnaugh,
Leonard Rossello, James Sherman, and John Sylak
because they refused to abandon the Union, Respondent
violated Section 8(aX3) and (1) of the Act.
5. The mass discharge of the union adherents herein
named constitutes a flagrant unfair labor practice disrup-
tive 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 strike of Respondent's employees on January 9,
1974, and thereafter was an unfair labor practice strike.
7. The unfair labor practices found herein affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
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 resprt 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 eight
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 (1%2), from the date of their wrongful termination to
the date reinstatement is offered . To the extent Respondent
has already complied with this affirmative requirement,
Respondent will not be required to duplicate that action.14
For reasons already set forth, Respondent will be directed,
12 Respondent challenges the validity of Richardson's card on the majority status.
ground that his signature was obtained by telling him that a majority of the 13 Indeed, Koufman in the course of his testimony acknowledged that
employees had already signed cards. This was, of course, true and in any Litman stated to him on this occasion, "I represent these men."
event the elimination of Richardson's card would not effect the Union's 14 The parties stipulated at the outset of the hearing that Respondent did
MORO MOTORS LTD. 203
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 appropri-
ate herein . The customary provisions regarding record-
keeping , notice posting, and reporting requirements will
also be included.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act, I shall make the following recommended:
ORDER 15
Respondent Moro Motors Ltd., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Industrial
Production Employees Union, or any other labor organiza-
tion, by discharging or otherwise discriminating against
any of its employees in regard to hire or tenure of
employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
organize and bargain collectively as guaranteed in Section
7 of the National Labor Relations Act, as amended, or to
refrain from such activities.
2. Take the following affirmative action to effectuate
the policies of the National Labor Relations Act, as
amended:
(a) Upon request , recognize and bargain with Interna-
tional Industrial Production Employees Union as the
exclusive collective-bargaining representative of the em-
ployees in a unit consisting of all mechanics and service
and parts department employees , including porters and
new-car make-ready men, employed at its service shop and
showroom in the town of Hempstead , New York, exclud-
ing office clerical employees, sales employees, and all
supervisors as defined in Section 2(11) of the Act
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 agree-
ment.
(b) Offer the employees named hereunder, to the extent
this has not already been done , immediate reinstatement to
their former jobs, or if such jobs no longer exist, to
substantially equivalent jobs, without prejudice to their
seniority or other rights and privileges and make the
named employees whole for lost earnings in the manner set
forth in the portion of this Decision entitled "Remedy."
These employees are:
William Baffi Samuel McDonnaugh
John Carr Leonard Rossello
James Gaffney James Sherman
Julio Gomez John Sylak
(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 records necessary to
compute the amount of lost earnings due under the terms
of this Order.
(d) Post at its service shop and showroom at Hempstead,
New York, copies of the attached notice marked "Appen-
dix." 16 Copies of the notice, on forms, provided by the
Regional Director for Region 29, after being duly signed
by an authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt thereof
and be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable care shall
be taken by Respondent to insure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS ALSO ORDERED that the complaint in this proceeding
be dismissed insofar as it alleges unfair labor practices not
found herein.
"reemploy" employees McDonnaugh and Rossello . The extent to which this
constitutes "reinstatement" within the meaning of this Order and the impact
of that action on the "make-whole" provision can be determined, if
required , in subsequent compliance proceedings.
15 In the event no exceptions are filed as provided in 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.
16 In the event the Board's Order in enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."