Mt. Read Volkswagen, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1967

168 N.L.R.B. 798 (N.L.R.B. 1967)

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mt. Read Volkswagen , Inc. and Raymond T. Sailer . had threatened employees with reprisals because of union
Case 3-CA-3190 or concerted activities. Respondent's conduct was al-
December 8, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On September 28, 1967, Trial Examiner Arthur
M. Goldberg issued his Decision in the above-enti-
tled proceeding, finding that Respondent had en-
gaged in and was engaging in unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made 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 and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that Respondent, Mt. Read Volkswagen, Inc.,
Rochester, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
ARTHUR M. GOLDBERG, Trial Examiner: Upon a
charge filed on March 29, 1967,1 by Raymond T. Sailer,
an individual, the complaint herein issued on June 2,
1967. The complaint alleged that Mt. Read Volkswagen,
Inc. (herein called Mt. Read or the Respondent), had
discharged Sailer because he had assisted the Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, AFL-CIO
(herein called the UAW or the Union), or had engaged in
other concerted activity. At the hearing the complaint
was amended to allege that Respondent on various dates
I Unless otherwise noted all dates herein were in 1967.
leg^A to have violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended (herein called the
Act). Respondent denied all the material allegations of
the complaint.
All parties participated in the hearing in Rochester,
New York, on July 27, 1967, and were afforded full op-
portunity to be heard, to introduce evidence, to examine
and cross-examine witnesses, to present oral argument,
and to file briefs. Oral argument was waived and briefs
were filed by Respondent and the General Counsel.
Respondent's motion to dismiss the complaint, on which
I reserved ruling, is disposed of in accordance with my
findings below.
Upon the entire record in the case, my reading of the
briefs, and from my observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I find
that Mt. Read Volkswagen, Inc., is and has been at all
times material herein engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. Respondent's
agency in Rochester, New York, where it is engaged in
the sale and service of new and used automobiles is the
only facility involved in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile, Aerospace
and Agricultural Implement Workers of America,
AFL-CIO , 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
Respondent opened its doors on September 1, 1966.
Among Respondent's employees are mechanics who are
trained to work on Volkswagen automobiles. In late
December 1966 or early January2 the mechanics in
discussions among themselves voiced dissatisfaction with
their compensation. Of particular concern were the wages
of Claus Witt, a more experienced mechanic who worked
in the unit shop repairing engines and transmissions. The
other mechanics who recognized their own inability to
perform the work assigned to Witt were concerned that
he would leave Respondent's employ and one of them
would be required to fill the position in the unit shop.
Since mechanics are paid a percentage of the billing price
of the work they perform it was feared that the man taking
Witt's place would suffer a drop in earnings. During these
discussions Sailer asked the employees if they would be
interested in speaking to a union representative and deter-
mining if a labor organization could be of assistance to
them. Among those so queried by Sailer was Donald
Blodgett, parts manager and an admitted supervisor
within the meaning of the Act. Thereafter, Sailer called
the Union and was to advise them of the day of the week
' None of the witnesses could state with precision dates upon which
conversations, meetings, or events occurred. The only date which was
definitely established was the last day of Sailer's employment, January 14.
168 NLRB No. 100
MT. READ VOLKSWAGEN , INC. 799
the men selected for a meeting. The Union was to call
Sailer but never made contact with him.
On Tuesday , January 10 the employees again
discussed their wages and the fact that Claus Witt had
been denied a wage increase and appeared ready to leave
Respondent ' s employ. The mechanics agreed among
themselves that they would approach Respondent and
seek an adjustment in their wages before meeting with the
Union . Sailer was selected to ask Bert Wasson , Respond-
ent's service manager , to meet with the mechanics.
At noon Wasson met with the mechanics in the unit
shop . The men told the service manager that they wanted
an adjustment in their wages and of their concern that
Witt would leave if he did not receive additional pay.
Wasson asked what the consequences would be if no
wage increase was forthcoming and was told that the men
would walk out . Though Wasson told the men he didn't
like them going behind his back he promised to discuss
their wage demands with Robert Barish , Respondent's
president and owner . Wasson testified that during this
meeting Sailer presented the demand for a wage increase
for all the mechanics and that mechanics Edgecomb and
Cochrane spoke up for an increase for Claus Witt.3
That evening the employees were called to a meeting
with Mt. Read President Barish. Barish told the
mechanics that he had been a body-and -fender man him-
self and knew their problems. He went on to tell the histo-
ry of the Mt. Read agency. Thereafter Barish stated that
while he' was not opposed to giving the mechanics higher
wages he would not be coerced into doing so and would
close Respondent 's doors before yielding to an employee
ultimatum . However, Barish held out the hope that wages
could be raised after Respondent had started to yield a
profit which he expected in several months time . During
his talk to the men Barish told of a telephone conversa-
tion with the service manager of another Volkswagen
agency in which mechanics ' wages were discussed.
Barish told the men that he had been told during that con-
versation that a Mt. Read mechanic was a troublemaker
who should be fired . Barish explained that he would not
act upon another employer's advice and believed that em-
ployees "sooner or later ... show themselves up for what
type of people they were."4 Under questioning at the
meeting Barish acknowledged that the employee
identified as the troublemaker was Sailer . Barish asked
the employees to tell him their problems and a discussion
followed during which Sailer suggested an improved ven-
tilation system in the service area. Gary Edgecomb op-
posed the idea as unnecessary.5
After Barish concluded his remarks the management
representatives left the meeting and the mechanics
discussed their future course of conduct . All but Sailer
were content to wait the time Barish had suggested to see
if he would raise their wages. Sailer urged the men to stick
to their prior decision to walk out if not granted an im-
mediate wage boost. After the decision to wait had been
made Sailer said he would not be around to see if wages
were raised in 3 or 4 months' time.
Thereafter Edgecomb told Barish and Wasson that the
mechanics had decided to wait for the wage increase. He
told them as well that Sailer had been the sole dissenter
from this decision and had urged the other employees to
carry out their agreement to walk out . Edgecomb also
told the company officials that he didn't think Sailer was
any good as a mechanic and that he didn 't like Sailer as a
person.6
Early in the morning on Saturday , January 14,
Edgecomb was called to Service Manager Wasson's of-
fice. Wasson told Edgecomb "not to get shook up by
anything [he] heard in the near future ." Edgecomb had
never been called to the service manager 's office before.
Wasson testified in explanation that he had been planning
to talk to Sailer that morning to see if he was leaving
Respondent 's employ. Knowing that Edgecomb "might
be upset by Sailer leaving and might sway his judgment"
and since Edgecomb "was one of the interested parties in
getting more money,"7 Wasson wanted to take steps be-
forehand to prevent an adverse reaction by Edgecomb.
• Later that morning Wasson approached Sailer at his
work station . Other than the two participants no other
persons were present and their versions of the conversa-
tion are in direct conflict. Sailer testified that he was
cleaning his toolbox as the service manager approached.
After Sailer denied having plans to leave Mt. Read, Was-
son said he had heard that Sailer was a little angry
because of the employee meeting that week. Sailer
acknowledged being "a little mad." Thereupon Wasson
told Sailer that because of the trouble he had caused and
the talk of the Union the mechanic could pack his tools
and leave.
Wasson testified that he had heard from various em-
ployees that Sailer was planning to leave and accordingly
planned to speak to Sailer about the latter 's plans. As the
service manager approached Sailer's work bay the
mechanic was cleaning his toolbox . Wasson asked if
Sailer was leaving and when he said he was, Wasson told
him that he "might as well leave right now."
Sailer denied that he had any plans to leave his job with
Respondent, although admitting that he, as well as all the
mechanics , was always available if a better position
developed. However, on January 14 Sailer had not ob-
tained other employment.
I Sailer first testified that the events described above occurred on
January 3 and that he was discharged on January 7. After the lunch recess
Sailer was recalled to the stand and testified that based on his reading of a
statement he had given to the State Unemployment Compensation Com-
mission he now recalled that the discharge had occurred on January 14
and the events he had placed as having happened on January 3 had also
taken place one week later , i.e., on January 10. Sailer impressed me dur-
ing his two appearances on the stand as a credible witness who was at-
tempting to truthfully recall the events. Additionally , his call to the Union
was made before be asked his fellow employees on what day of the week
they wished to meet with the UAW . Since January 2 was a paid holiday
for Respondent 's employees , it appears likely that the call to the Union
was made on January 9, that Sailer polled the employees on January 10,
and that the meetings with management occurred on that day as well
4 The words are those of mechanic Edgecomb while testifying about the
meeting with Bansh.
The foregoing account of Barish 's meeting with the mechanics is
based on a synthesis of the record testimony , all witnesses having ad-
dressed themselves to the meeting and all having substantially cor-
roborated one another . Barish 's threat to close Respondent's doors rather
than yield to an employee ultimatum for higher wages was contained in his
own testimony. I find that by this threat Respondent violated Section
8(a)(1) of the Act.
6 Edgecomb and Wasson were in agreement that Edgecomb had re-
ported the employees ' decision to Bansh and Wasson Bansh denied talk-
ing to any employee after his address to the assembled employees I credit
Edgecomb and Wasson in their account of this conversation.
' Wasson's words.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Findings and Conclusions
I find that Respondent discharged Sailer in violation of
Section 8(a)(3) and (1) of the Act. The events of January
14 are susceptible of no other interpretation. I do not
credit Wasson's assertion that he had decided merely to
inquire of Sailer if the latter was planning to leave
Respondent's employ. Rather, I believe that Wasson
called Edgecomb to his office and advised Edgecomb not
to be upset by events which were to occur because Was-
son had determined to discharge Sailer that morning.
Edgecomb was important to Respondent. It was he who
had opposed Sailer at the meeting with Barish, had
spoken for going along with Barish's direction that the
mechanics delay their demand for a wage increase, had
told Respondent of the events at the employees' meeting,
and had informed the Employer of Sailer's having held
out for an immediate wage increase and work stoppage.
Respondent had no need to fear loss of Edgecomb's alle-
giance should Sailer quit. However, his reaction to the
discharge of the outspoken Sailer was to be feared and
therefore prior action to forestall "sway[ing] his
judgment" was needed.
Assuming, as Wasson testified, that Sailer had said he
was leaving, the service manager did not assert that Sailer
planned an immediate departure. Wasson transformed
Sailer's inchoate thoughts of leaving into immediate ter-
mination. The fact that on January 14 Sailer had made no
provision for other employment lends further support to
a finding of discharge rather than voluntary quit.
American Electronics Company, 134 NLRB 1151.
Respondent had expressed its determination to oppose
the employees' concerted efforts to secure a wage in-
crease. Wasson considered their concerted activity as ac-
tions taken behind his back. Barish had threatened to
close Respondent's doors before yielding to an employee
ultimatum for higher pay. But for Sailer Respondent had
been successful in turning the employees from their
united effort to better their pay scale. Alone among the
mechanics Sailer had dissented from the decision to delay
their demand for a wage increase. Further, Sailer had
asked the employees to carry out their prior decision to
stop work if their demands were not met. Respondent
was informed by Edgecomb that Sailer continued his mili-
tant stand. Prior to this time Respondent knew or had
reason to believe that Sailer was the leader in the em-
ployees' union or other concerted activities. It was Sailer
who had queried the employees about their interest in at-
tending a union meeting and had included Supervisor
Donald Blodgett, the parts manager, among those he
polled. It was Sailer who called Wasson to the meeting in
the unit shop where Sailer had presented the employees'
demand for a wage increase. Finally, a former employer
had warned Respondent that Sailer was an agitator and
troublemaker and had counseled Barish to discharge
Sailer." Accepting Barish's statement to the employees
that he would not fire Sailer on that advice alone but be-
lieved that in the course of time people showed them-
selves for what they are, I conclude that Sailer's con-
certed and union activities showed him to be an employee
not to Respondent's liking and that he was discharged for
those activities.
8 I do not credit Barish's testimony that the conversation in which
Sailer had been so identified had occurred months before Rather, I be-
lieve that after receiving Wasson's report of the employees' demand for
higher wages Bansh had called the other Volkswagen dealers in the area
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's activities set forth in section III, above,
occurring in connection with its operations as set forth in
section 1, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, I shall
recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent unlawfully discharged
Raymond T. Sailer, I shall recommend that Respondent
be ordered to reinstate him to his former or a substantially
equivalent position of employment, without prejudice to
his seniority and other rights and privileges, and to make
him whole for any loss of earnings suffered as a result of
Respondent's unlawful conduct. Backpay shall be com-
puted in the manner set forth in F. W. Woolworth Com-
pany, 90 NLRB 289, with interest added thereto in the
manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Mt. Read Volkswagen, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. By engaging in certain described conduct referred
to hereinabove, in section III, Respondent interfered
with, restrained, and coerced its employees in the exer-
cise of rights guaranteed-to them in Section 7 of the Act,
and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. By engaging in certain conduct described in section
III, above, Respondent discriminated against Raymond
T. Sailer in regard to his tenure of employment, in order
to discourage activities protected by Section 7 of the Act,
and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
The Respondent, Mt. Read Volkswagen, Inc,, its of-
ficers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that it will close its doors
before yielding to an employee ultimatum for higher pay,
to check with them the wages being paid mechanics , explaining that he
was faced with a concerted demand for higher pay. Only in such a context
would Barish 's informant feel called upon to identify the troublemaker.
MT. READ VOLKSWAGEN, INC.
or in any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed by the Act.
(b) Discouraging or coercing its employees in the ex-
ercise of rights guaranteed by Section 7 of the Act by the
discharge of Raymond T. Sailer.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Raymond T. Sailer immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of
earnings he may have suffered by reason of Respondent's
discrimination against him as set forth in the section of
this Decision entitled "The Remedy."
(b) Notify the above-named 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.
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze and compute the amount of
backpay due and all other rights under the terms of this
Recommended Order.
(d) Post at its agency in Rochester, New York, copies
of the attached notice marked "Appendix."9 Copies of
the said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by the
Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt thereof, and
be maintained by 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 other material.
(e) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the receipt of this Decision, what
steps it has taken to comply therewith.10
APPENDIX
NOTICE TO ALL EMPLOYEES
801
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT threaten to close our doors before
yielding to an employee ultimatum for higher pay.
WE WILL NOT discourage or coerce our employees
in the exercise of their rights to engage in union or
concerted activity, such as seeking higher wages, by
the discharge of Raymond T. Sailer.
WE WILL NOT, in any like or related manner, inter-
fere with , restrain , or coerce our employees in the ex-
ercise of their right to self-organization, to bargain
collectively through representatives of their own
choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the
Act, or to refrain from any and all such activities, ex-
cept to the extent that such right may be affected by
an agreement requiring membership in a labor or-
ganization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as amended.
WE WILL offer to Raymond T. Sailer immediate
and full reinstatement to his former or substantially
equivalent position, without prejudice to any rights
or privileges previously enjoyed and make him whole
for any loss of pay he may have suffered by reason of
the discrimination against him.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization.
MT. READ VOLKSWAGEN,
INC.
(Employer)
Dated By
IT IS FURTHER ORDERED that the complaint be (Representative) (Title)
dismissed insofar as it alleges unfair labor practices not
found herein.
8 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith."
Note: We will notify the above-named 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.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Fourth Floor,
The 120 Building, 120 Delaware Avenue, Buffalo, New
York 14202, Telephone 842-3100.