Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville

National Labor Relations Board - Board Decisions

Sep 28, 2018

367 NLRB No. 6 (N.L.R.B. 2018)

367 NLRB No. 6
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Napleton 1050, Inc. d/b/a Napleton Cadillac of Liber-
tyville and Local lodge 701, International Associ-
ation of Machinists & Aerospace Workers, AFL–
CIO and William Glen Russell II. Cases 13–CA–
187272, 13–CA–196991, and 13–CA–204377
September 28, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
On April 4, 2018, Administrative Law Judge David I.
Goldman issued the attached decision. The Respondent
and General Counsel each filed exceptions, a supporting
brief, and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings,1 findings,2 and conclusions in part, to
reverse them in part, and to adopt the judge’s recom-
mended Order as modified.3
As further explained below, we agree with the judge
that the Respondent violated Section 8(a)(1) by creating
the impression that employees’ union activities were un-
der surveillance and by ordering the removal of, and

1 The Respondent excepts to several of the judge's evidentiary
and procedural rulings. Sec. 102.35 of the Board's Rules and Regulations
provides, in pertinent part, that a judge should “[r]egulate the course of
the hearing” and “[t]ake any other necessary action” authorized by the
Board's Rules. Thus, the Board accords judges significant discretion in
controlling the hearing and directing the creation of the record. See Parts
Depot, Inc., 348 NLRB 152, 152 fn. 6 (2006), enfd. mem. 260 Fed.
Appx. 607 (4th Cir. 2008). Further, it is well established that the Board
will affirm an evidentiary ruling of a judge unless that ruling constitutes
an abuse of discretion. See Aladdin Gaming, LLC, 345 NLRB 585, 587
(2005), petition for review denied sub nom. Local Joint Executive Board
of Las Vegas v. NLRB, 515 F.3d 942 (9th Cir. 2008). After a careful
review of the record, we find no abuse of discretion in any of the chal-
lenged rulings.
In addition, some of the Respondent’s exceptions allege that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire rec-
ord, we are satisfied that the Respondent’s contentions are without merit.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
No party excepted to the judge’s finding that the Respondent violated
Sec. 8(a)(1) by telling employee David Geisler that he was being laid off
removing, employee toolboxes from the Respondent’s fa-
cility in retaliation for employees’ protected strike activ-
ity. However, we reverse the judge’s finding that the Re-
spondent unlawfully threatened employees with job loss
for striking.
FACTS
On June 20, 2016, the Napleton Auto Group purchased
the assets of Weil Cadillac, a car dealership, and began
operating the dealership as Napleton Cadillac of Liber-
tyville (the Respondent). In early August 2016, the Re-
spondent’s service-technician employees initiated an or-
ganizing campaign with Local Lodge 701, International
Association of Machinists & Aerospace Workers, AFL–
CIO (the Union). During the course of the campaign, the
employees, who did not openly express support for the
Union or discuss the Union at work, attended offsite union
meetings. On October 18, 2016, the Union won a Board-
conducted representation election.
Three days later, the Respondent’s CFO Michael Jopes
told the Respondent’s attorney, James Hendricks, that
“they had to lay off at least one technician” because of
productivity concerns. On October 26, 2016, Hendricks
told the Union’s business representative, Bob Lessman,
that the Respondent intended to lay off the least produc-
tive service-technician employee.4 Lessman responded,
“That’s not how we do contracts. It’s always by senior-
ity.” After Hendricks remarked that all of the employees
had the same seniority—based on the date the Respondent
because the employees voted in favor of the Union in the October 18,
2016 representation election.
We affirm the judge’s findings, for the reasons he stated, that the Re-
spondent violated Sec. 8(a)(3) and (1) by terminating employee William
Russell II and laying off Geisler because of their and their coworkers’
union activity. Because it would not materially affect the remedy, we
agree with the judge that it is unnecessary to pass on the General Coun-
sel’s allegation that the Respondent violated Sec. 8(a)(5) by failing to
bargain over Geisler’s layoff.
We also affirm the judge’s dismissal of the 8(a)(5) allegation that the
Respondent unlawfully failed to provide requested information to the
Union. We agree with the judge that Union Business Representative Bob
Lessman’s October 27, 2016 email was not a request for additional in-
formation. To the extent the General Counsel excepts to the judge’s fail-
ure to find the violation because the Respondent did not fully respond to
Lessman’s original October 26, 2016 oral request for documents relating
to employee productivity, there is insufficient evidence to support the
General Counsel’s assertion that there were other relevant documents
that the Respondent should have provided.
3 We have amended the remedy and modified the judge’s Conclusions
of Law and recommended Order consistent with our legal conclusions
herein. We shall substitute a new notice to conform to the modified Or-
der.
4 The judge erred in finding that Hendricks notified Lessman of the
impending layoff on October 24. The documentary evidence clearly
shows that the Respondent first raised the issue of a layoff with the Union
and forwarded data showing employee productivity information on Oc-
tober 26.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
acquired the Libertyville dealership in June—Lessman ex-
plained that the Respondent should use the Weil Cadillac
seniority dates. Hendricks responded, “No, I want it by
productivity.”
On October 27, 2016, the Respondent notified the Un-
ion that it was laying off journeyman mechanic David
Geisler, one of the Respondent’s most highly trained em-
ployees, who had worked at the dealership for 22 years.5
By certified letter sent that same day, the Respondent also
notified employee William Glen Russell II that he was ter-
minated and should remove his toolbox from the dealer-
ship.
On November 4, 2016, Russell returned to the dealer-
ship to move his toolbox. Service Manager Scott Inman
told Russell, “I’m sorry this happened . . . but with every-
thing that happened, [I’m] just sorry about it.” During
their conversation, employee Bill Osberg walked by and
Inman remarked, “That’s the guy who started all this,” re-
ferring to the union campaign.
Over the course of the next year, the parties negotiated
for an initial collective-bargaining agreement. By August
1, 2017,6 the negotiations had stalled, and the employees
joined a citywide strike against the 129 Chicago-area car
dealerships belonging to the New Car Dealer Committee
(NCDC), a multiemployer bargaining association. Alt-
hough the Respondent was not a member of the NCDC,
the Respondent’s owner, Napleton Auto Group, also
owned six other car dealerships that were members of the
NCDC.
On August 1, the first day of the strike, the Respondent
distributed a letter to its employees. The relevant portions
of the letter stated:
*We have placed ads for replacement technicians. If and
when you are replaced, you will be notified. After you
are replaced, should you make an unconditional offer to
return to work you will be placed on a preferential hire
list should an opening occur.
*Make arrangements to have your tool boxes removed
from the shop, as we do not want to be responsible for
your tools when you are not working.
Because of the large size and hefty weight of the toolboxes,
the Respondent permitted employees at all its dealerships to
keep their toolboxes on the premises where they worked for
the duration of their employment.7 That was so even when
they were not currently working. For instance, employee
William Russell kept his toolbox at the dealership for several

5 Geisler was also a GM world-class technician ranked 28th nation-
ally. He attended the three union organizing meetings prior to the elec-
tion but did not openly support the Union at work.
months while he was out on workers’ compensation, and em-
ployee David Geisler kept his toolbox at the dealership for
almost two weeks after the Respondent laid him off. When
an employee had to remove a toolbox, it was done using a
tow truck.
On August 1 or 2, Hendricks informed Lessman that the
Respondent’s striking employees had to remove their
toolboxes. Lessman responded that removing the
toolboxes was “going to take some time.” On August 2,
the Union and the Respondent reached an agreement giv-
ing the employees until the end of August 4 to remove
their toolboxes.
On the morning of August 3, after informing the Union
“that he got his rear end reamed from a dealer principal”
for giving the employees until August 4 to remove their
toolboxes, Hendricks told the Union that the toolboxes
needed to be removed immediately. That same morning,
the Respondent started rolling the toolboxes off its prop-
erty and onto a service access driveway, where it left them
uncovered and unattended. Later that day, the Respondent
pushed the toolboxes back inside the dealership after a
heavy rainfall that lasted for about 30 minutes. However,
the toolboxes of employees Joseph Schubkegel and Bill
Osberg sustained rain damage. On August 4, the Union
and the employees arranged for a towing service to re-
move the toolboxes from the dealership. The Napleton
Auto Group did not similarly demand the removal of, or
take steps to remove the toolboxes of employees at its six
other dealerships where employees went on strike.
DISCUSSION
I. NOVEMBER 4, 2016 STATEMENT ABOUT EMPLOYEE
BILL OSBERG
We agree with the judge’s finding that the Respondent
violated Section 8(a)(1) by creating the impression that
employees’ union activities were under surveillance when
Service Manager Inman remarked to Russell that Osberg
had initiated the union campaign. It is well established
that “[i]n determining whether an employer has unlaw-
fully created the impression of surveillance of employees'
union activities, the test that the Board has applied is
whether, under all the relevant circumstances, reasonable
employees would assume from the statement in question
that their union or other protected activities had been
placed under surveillance.” Frontier Telephone of Roch-
ester, Inc., 344 NLRB 1270, 1276 (2005), enfd. 181 Fed.
Appx. 85 (2d Cir. 2006). Here, as noted by the judge, “the
undisputed record evidence is that during the union cam-
paign the [employees] did not openly discuss the [U]nion
6 All dates hereafter are in 2017 unless otherwise indicated.
7 The toolboxes were up to 15 feet long and 6 to 7 feet high and could
weigh thousands of pounds.
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 3
at work for fear that management would retaliate against
them.” Hence, under all of the relevant circumstances, we
find that Russell would have reasonably concluded that
the only explanation for Inman’s suspected knowledge of
employees’ union activity was that Inman was surveilling
them.8
II. AUGUST 1, 2017 LETTER TO STRIKING EMPLOYEES
The judge found that the Respondent’s August 1 letter
to employees violated Section 8(a)(1) by (1) ordering the
removal of striking employees’ toolboxes from the Re-
spondent’s dealership in retaliation for the employees en-
gaging in a strike, and (2) impliedly threatening employ-
ees that they would suffer job loss for engaging in a strike.
We agree, for the reasons stated by the judge, that the Re-
spondent unlawfully ordered its employees to remove
their toolboxes and subsequently removed employees’
toolboxes from the dealership because they engaged in
protected strike activity.9 The Respondent’s managers ad-
mitted that they required the employees to remove their
toolboxes because the employees chose to strike, and they
did not make the same demand of striking employees at
the other NCDC dealerships they managed. And the Re-
spondent’s purported justification, namely that its insur-
ance policy required the removal, was discredited by the
judge and not supported by the record evidence.10
We reverse the judge’s finding, however, that the Re-
spondent’s August 1 letter constituted an implied threat of
job loss by informing employees that, if and when they are
replaced, they would be placed on a preferential hiring list
upon making an unconditional offer to return to work. In
The Laidlaw Corp., the Board held that “economic strikers
who unconditionally apply for reinstatement at a time
when their positions are filled by permanent replacements:
(1) remain employees; and (2) are entitled to full reinstate-
ment upon the departure of replacements unless they have
in the meantime acquired regular and substantially equiv-
alent employment, or the employer can sustain his burden
of proof that the failure to offer full reinstatement was for
legitimate and substantial business reasons.” 171 NLRB

8 Chairman Ring and Member Emanuel express no opinion on
whether an employer unlawfully creates an impression of surveillance of
employees’ union activity merely by not naming a source for its infor-
mation. They note, however, that this rationale has not met with univer-
sal acceptance. See Greater Omaha Packing Co., Inc. v. NLRB, 790 F.3d
816, 823–825 (8th Cir. 2015) (no unlawful impression of surveillance,
even though employer accused two employees of being leaders of a work
stoppage without revealing the source of its information, because wide-
spread employee communication of the work stoppage in advance made
it unlikely that employees would assume the employer learned of the plan
through employee surveillance). They find the violation here based on
the totality of the circumstances.
9 The judge found that the Respondent violated Sec. 8(a)(1) by its
“insistence on the removal of striking employees’ toolboxes from the
1366, 1369–1370 (1968), enfd. 414 F.2d 99 (7th Cir.
1969), cert. denied 397 U.S. 920 (1970).
Under Eagle Comtronics, 263 NLRB 515, 516 (1982),
as long as an employer does not threaten that employees
will be deprived of their rights, it may address the subject
of economic-striker replacement without fully detailing
the protections enumerated in The Laidlaw Corp., supra.
The Respondent did precisely that by informing employ-
ees that they would be placed on a preferential hire list if
it hired replacements. Although the Respondent did not
spell out that the replacements would be permanent, the
letter’s reference to a preferential hiring list implicitly sug-
gests that they would be, and nothing else in the letter con-
tradicts that suggestion. Therefore, we disagree with the
judge’s finding that the letter is ambiguous. Moreover, the
Respondent’s omission of the modifier “permanent” in de-
scribing the status of any replacements that it chose to hire
is not sufficient to violate the Act. See Rivers Bend Health
& Rehabilitation Service, 350 NLRB 184, 185 (2007)
(lawful for employer to tell employees that “[i]n a strike
the [c]ompany would be forced to hire replacements” and
that doing so “puts each striker’s continued job status in
jeopardy” without specifying that the replacements could
be permanent). In addition, although the judge relied on
the legal presumption that replacements hired by the Re-
spondent are temporary unless the Respondent meets its
burden of proving otherwise, that presumption is irrele-
vant here because the Respondent had yet to hire replace-
ments at the time it distributed the letter. Accordingly, we
dismiss the 8(a)(1) allegation that the Respondent’s Au-
gust 1 letter constituted an implied threat of job loss.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 6.
“6. On or about August 1, 2017, and thereafter, the Re-
spondent violated Section 8(a)(1) of the Act by ordering
the removal of and/or removing employee toolboxes or
other employee property from the Respondent’s facility in
retaliation for the employees’ engaging in a strike and to
premises.” His recommended Order appropriately required the Re-
spondent to cease and desist both from “[o]rdering the removal” of the
toolboxes and from “removing” them. The judge’s Conclusions of Law,
however, omitted reference to the actual removal of the toolboxes. The
General Counsel excepts to that omission, and we have corrected it.
10 Member Emanuel believes an employer is ordinarily justified in
telling employees to remove their personal belongings from its property
during a strike. However, in the circumstances here, where the Respond-
ent treated its employees disparately because they decided to go on strike
and failed to credibly provide a legitimate business explanation for treat-
ing them differently, he agrees that the Respondent’s conduct violated
Sec. 8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
discourage the employees from engaging in this and other
protected concerted activities.”
2. Delete Conclusion of Law 7.
AMENDED REMEDY
The General Counsel excepts to the judge’s failure to
award employees Joseph Schubkegel and Bill Osberg re-
imbursement for the damage-repair expenses they in-
curred as a result of the Respondent’s unlawful removal of
their toolboxes from the workplace on or about August 3,
and his failure to award all of the employees reimburse-
ment for the towing expenses they incurred as a result of
the Respondent’s unlawful requirement that they remove
their toolboxes from the workplace on or about August 4.
We agree.
Section 10(c) grants the Board broad discretion to order
affirmative action necessary to effectuate the policies of
the Act. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898
(1984). In declining to award reimbursement, the judge
analogized the situation here to cases in which the Board
has required employers legally damaged by the tortious
conduct of unions to resolve those claims through private
remedies. Unlike this case, those cases involved damages
resulting from tortious conduct, including violence, for
which state courts have more experience and are better
equipped than the Board to measure the impact of the con-
duct to make the victims whole. See Roofers Local 30
(Associated Builders), 227 NLRB 1444 (1977). The
Board has reasoned that the type of damages in those
cases, such as medical expenses and pain and suffering,
could be more readily and comprehensively remedied in
state court. Iron Workers Local 111 (Northern States),
298 NLRB 930, 932 (1990), enfd. 946 F.2d 1264 (7th Cir.
1991).
In contrast, in a case involving an award of medical ex-
penses to an employee, the Board recognized that the spe-
cial expertise of state courts in determining speculative
tort damages was not required where the damages were
specific and easily ascertained. Nortech Waste, 336
NLRB 554, 554 fn. 2 (2001); see also BRC Injected Rub-
ber Products, 311 NLRB 66, 66 fn. 3 (1993) (awarding
monetary reimbursement to an employee for the cost of
her clothes, which were ruined as a result of her em-
ployer’s unfair labor practice).
We find the reasoning in Nortech Waste applies equally
here. Because the costs incurred by Schubkegel and Os-
berg to repair damage to their toolboxes and by all of the
employees for having to hire a towing service to tow their
toolboxes are specific and easily ascertainable, the

11 We shall leave it to compliance to determine the specific amount of
expenses the employees incurred as a result of the Respondent’s unlaw-
ful conduct.
determination of those costs does not require the special
expertise of the courts. Moreover, making the employees
whole for those costs is necessary to fully remedy the Re-
spondent’s unfair labor practice and effectuate the policies
of the Act. See Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 194 (1941) (the Board’s remedial policy is to seek “a
restoration of the situation, as nearly as possible, to that
which would have obtained but for the illegal discrimina-
tion”). Accordingly, in addition to the remedies recom-
mended by the judge, we shall order the Respondent to
make Schubkegel and Osberg whole, with interest, for any
expenses they incurred as a result of the Respondent un-
lawfully removing their toolboxes from its dealership on
or about August 3. We shall also order the Respondent to
make whole all of the employees, with interest, for the
towing expenses they incurred when they were unlawfully
required to remove their toolboxes from the dealership on
or about August 4.11 The make-whole remedy shall be
computed in accordance with Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders that the Respondent, Napleton 1050, Inc.
d/b/a Napleton Cadillac of Libertyville, Libertyville, Illi-
nois, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Delete paragraph 1(e) and reletter the subsequent
paragraph.
2. Insert the following as paragraph 2(e) and reletter the
subsequent paragraphs.
“(e) Make Joseph Schubkegel, Bill Osberg, and other
employees whole for the costs of repairing and/or towing
their toolboxes incurred as a result of the discrimination
against them in the manner set forth in the remedy section
of this decision.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. September 28, 2018
______________________________________
John F. Ring, Chairman
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 5
______________________________________
Lauren McFerran, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT discharge, lay off, or otherwise discrimi-
nate against any of you in retaliation for your support of
Local 701 of the International Association of Machinists
& Aerospace Workers, AFL–CIO, or any other labor or-
ganization.
WE WILL NOT create the impression that we are engaged
in surveillance of your union or other protected concerted
activities.
WE WILL NOT tell you that we are conducting a layoff
because of how employees voted in a union representation
election.
WE WILL NOT order you to remove and/or remove your
toolboxes or other personal property from our facility be-
cause you engage in a strike or other protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer William Glen Russell II and David Geisler
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make William Glen Russell II and David Geis-
ler whole for any loss of earnings and other benefits re-
sulting from their discharge and layoff, less any net in-
terim earnings, plus interest, and WE WILL also make such
employees whole for reasonable search-for-work and in-
terim employment expenses, plus interest.
WE WILL compensate William Glen Russell II and Da-
vid Geisler for the adverse tax consequences, if any, of re-
ceiving lump-sum backpay awards, and WE WILL file with
the Regional Director for Region 13, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay awards to
the appropriate calendar year(s) for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharge of William Glen Russell II and unlawful layoff
of David Geisler, and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done and
that the discharge and layoff will not be used against them
in any way.
WE WILL make Joseph Schubkegel, Bill Osberg, and
other employees whole for the costs of repairing and/or
towing their toolboxes incurred as a result of the discrim-
ination against them, plus interest.
NAPLETON 1050, INC. D/B/A NAPLETON
CADILLAC OF LIBERTYVILLE
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-187272 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Emily O’Neill, Esq. and Kevin M. McCormick, Esq. (NLRB Re-
gion 13), for the General Counsel
Michael P. MacHarg, Esq. and James F. Hendricks, Jr., Esq.
(Freeborn & Peter LLP), of Chicago, Illinois, for the Re-
spondent
Brandon M. Anderson, Esq. (Jacobs, Burns, Orlove & Hernan-
dez), of Chicago, Illinois, for the Charging Party Local
Lodge 701
Robert J. Kartholl, Esq. (Law Offices of Robert J. Kartholl), of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Roselle, Illinois, for the Charging Party William Glen Rus-
sell, II
DECISION
INTRODUCTION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. These
cases involve an employer that acquired a car dealership in June
2016. Four months later, on October 18, 2016, the employer’s
service employees at the new dealership voted for union repre-
sentation. The following week the employer severed the employ-
ment of two longtime dealership mechanics, claiming productiv-
ity concerns required a layoff in the case of one, and claiming
that the other, who had been off work for an injury since before
the employer’s acquisition of the dealership, had just been dis-
covered to have been on the health insurance payrolls and was
never an employee. The government and the union contend that
these actions constituted an unlawful layoff and unlawful dis-
charge and were motivated by retaliation for the employees’ re-
cent decision to unionize. As discussed herein, there is strong
evidence in support of the government’s case and it warrants a
finding of antiunion motivation for the employer’s actions. Fur-
ther, the employer has failed to show that it would have taken the
same actions in the absence of the union activity. Hence, I find
the violations as alleged. As discussed herein, I do not reach the
government’s further allegation that the employer failed to bar-
gain over the layoff, and I dismiss the government’s allegation
that the employer failed to provide the union information re-
quested in conjunction with the layoff. In addition, for the rea-
sons explained herein, I agree that the government has proven
that by revealing the identity of the employee that the employer
believed to have instigated the union drive, the employer gave
the impression that it had engaged in unlawful surveillance of
employee union activities.
These cases also involve two incidents arising months later
during a strike that the employees commenced in August 2017.
The government allege that employer unlawfully ordered the re-
moval of employees’ personal tools from the premises—these
are expensive tools kept in toolboxes weighing hundreds or thou-
sands of pounds and requiring a tow to move—in retaliation for
the employees’ engaging in a strike. As discussed herein, I
agree, and find that the removal of the tools was unlawful retali-
ation for the strike. Finally, the government also alleges that the
employer’s threat of replacement for striking was framed in a
way that unlawfully implied job loss. Again, I agree. As ex-
plained herein, the threat raised the prospect that even if replaced
by nonpermanent replacements, at strike’s end the employees
would not be reinstated but put on a preferential hire list to await
a vacancy. That is an unlawful threat.
STATEMENT OF THE CASE
On October 31, 2016, Local Lodge 701, International Associ-
ation of Machinists & Aerospace Workers, AFL–CIO (Local 701
or Union), filed an unfair labor practice charge alleging viola-
tions of the Act by Napleton Cadillac of Libertyville, docketed

1 During the hearing, the Respondent filed a request for permission
to file a special appeal over a sequestration ruling. That request was de-
nied by the Board in an unpublished order dated January 29, 2018.
by Region 13 of the National Labor Relations Board (Board) as
Case 13–CA–187272. On January 27, 2017, the Union filed its
first amended charge in this case, against Napleton 1050, Inc.
d/b/a Napleton Cadillac of Libertyville (Napleton or Employer).
Based on an investigation into this charge, on February 27,
2017, the Board’s General Counsel, by the Acting Regional Di-
rector for Region 13 of the Board, issued a complaint and notice
of hearing in this case. He issued an amendment to the complaint
on March 3, 2017. Napleton filed an answer denying all alleged
violations of the Act on March 13, 2017. A second amendment
to the complaint was issued by the Regional Director for Region
13, on May 8, 2017. Napleton filed an answer denying the alle-
gations of the second amendment to the complaint on May 31,
2017.
On April 17, 2017, William Glen Russell II (Russell), filed an
unfair labor practice charge alleging violations of the Act against
Napleton, docketed by Region 13 of the Board as Case 13–CA–
196991. On January June 26, 2017, Russell filed a first amended
charge in this case.
On July 28, 2017, the General Counsel, by the Regional Di-
rector for Region 13, issued an order consolidating cases 13–
CA–196991 and 13–CA–187272, and an amended consolidated
complaint and notice of hearing. Napleton filed an answer to the
amended consolidated complaint on August 4, 2017, in which it
denied all alleged violations of the Act.
On August 14, 2017, the Union filed a further unfair labor
practice charge alleging violations of the Act against Napleton,
docketed by Region 13 of the Board as case 13–CA–204377. An
amended charge in this case was filed October 30, 2017.
On October 31, 2017, the General Counsel, by the Regional
Director for Region 13, issued an order consolidating case 13–
CA–20437 with cases 13–CA–196991 and 13–CA–187272, and
a second consolidated complaint and notice of hearing. Napleton
filed an answer to the second consolidated complaint on Novem-
ber 8, 2017, in which it denied all alleged violations of the Act.
A trial in this matter was conducted on January 3–5, 2018 in
Chicago, Illinois. At the commencement of the hearing, counsel
for the General Counsel moved to amend the complaint to
change the date alleged in para. 5(b) from November 4, 2017 to
November 4, 2016. That motion was granted. Throughout this
decision, references to the complaint are to the extant second
consolidated complaint as amended at the hearing.1
Counsel for the General Counsel and for the Respondent filed
posttrial briefs in support of their positions on March 2, 2018.2
On the entire record, I make the following findings, conclu-
sions of law, and recommendations.
JURISDICTION
At all material times, Napleton has been a corporation with an
office and place of business in Libertyville, Illinois, where it has
been engaged in the business of the sale and service of new and
pre-owned automobiles. In conducting its operations during the
12-month period ending December 31, 2016, Napleton derived
gross revenues in excess of $500,000 and during the same period
2 The General Counsel’s unopposed posthearing motion to admit
General Counsel’s Exhibit 18 is granted. See, GC Br. at 16 fn. 11.
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 7
of time, purchased and received goods and materials valued in
excess of $5000 directly from points outside of the State of Illi-
nois. At all material times, Napleton has been an employer en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act. At all material times, Local 701 has been a labor
organization within the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects commerce
and that the Board has jurisdiction of this case, pursuant to Sec-
tion 10(a) of the Act.
UNFAIR LABOR PRACTICES
The Employer in this case, Napleton Cadillac of Libertyville
(referred to herein as Napleton) is part of a larger group of 14 or
as many as 18 (the record is unclear) car dealerships in Illinois,
Indiana, Missouri, and Wisconsin, composing the holdings of
Bill and Paul Napleton. Approximately six of the dealerships are
unionized in addition to the Libertyville, Illinois dealership.
On approximately June 20, 2016, Napleton purchased the as-
sets of Weil Cadillac, a longtime Libertyville, Illinois Cadillac
dealer, and opened for business at the former site of Weil Cadil-
lac as Napleton Cadillac of Libertyville, at 1050 S. Milwaukee
Avenue, Libertyville, Illinois.
Napleton retained most of Weil Cadillac’s workforce. The
service manager for Weil, Walter “Scott” Inman, was retained
by Napleton, as was the office manager, Pam Griffin, as well as
(approximately) all 12 of the Weil service employees, which in-
cluded—least to most skilled—the lube techs, semi-skilled tech-
nician, apprentices, and finally, journeymen mechanics.3 Alt-
hough the record is not entirely clear, there appears to have been
approximately seven journeymen mechanics (including Russell,
see fn. 3, supra), three apprentices/lube techs, and two additional
employees, of unidentified skills who worked in the body shop.
The technicians were transferred to employment from Weil to
Napleton without having to interview or apply.
Typically, mechanics, at Napleton and in the industry gener-
ally, own their own tools and toolboxes. The toolboxes are large
metal tool cabinets, some up to 15 feet long, some up to 6–7 feet
high, mounted on retractable wheels, that can weigh thousands
of pounds. They are normally moved with tow trucks or other
such loading vehicles. Mechanics keep their toolboxes at their
site of employment and use them in their work.
While some of Bill and Paul Napleton’s auto dealers were un-
ionized, Napleton Cadillac of Libertyville was not, at least not

3 There is a dispute about the status of one Weil mechanic, Charging
Party Russell, who was on workers’ compensation leave at the time of
the establishment of Napleton.
4 Pursuant to the election, on October 31, 2016, the Union was certi-
fied as the exclusive collective-bargaining representative of the follow-
ing employees of the Respondent:
Included: All full -time and regular part-time Service Technicians &
Body Shop Technicians including journeymen, apprentices, semi-
skilled and lube rack technicians who are employed at the Employer's
facility currently located at Napleton Cadillac of Libertyville, 1050 S
Milwaukee Avenue, Libertyville, Illinois
Excluded: All other employees including parts department employees,
service writers, porters, sales employees, managerial employees, office
clerical employees and guards, professional employees and supervisors
when Napleton assumed operation of the dealership in June
2016. However, in early August 2016, Local 701 began organ-
izing efforts with the Napleton service employees. On Septem-
ber 23, 2016, the Union filed a representation petition with the
NLRB seeking recognition as the employees’ bargaining repre-
sentative. Napleton conducted three captive-audience luncheon
meetings with employees to discuss the union, which were led
by Inman and Napleton Automotive Group Corporate Manager
Tony Renello. In addition, Napleton mailed to employees’
homes at least one lengthy letter from Inman just before the elec-
tion urging employees to vote no on the Union. Employees were
not open in expressing support for the union or discussing the
union at work during the campaign. The Union won an election
conducted Tuesday, October 18, 2016.4
The following week, on Thursday, October 27, adverse action
was taken against two journeymen mechanics. Below, I describe
the circumstances surrounding each incident.
Bill Russell
Russell had been out on workers’ compensation since mid-
February 2016, when he tore a bicep while employed by Weil
Cadillac. Russell had worked for Weil since 1988. He did not
return to work after Napleton operated the dealership but re-
mained out of work receiving on workers’ compensation.
On October 27, 2016, Napleton’s office manager, Pam Grif-
fin, mailed Russell a letter from Napleton asking him to arrange
to remove his toolbox from the premises, attaching a COBRA
notice, and asking him to select whether he wanted to continue
health insurance through COBRA.5
As noted, when Napleton took over Weil Cadillac it hired the
employees of Napleton en masse. As to Russell, who was out on
workers’ compensation, Napleton began paying his and his fam-
ilies’ health insurance as part of the health care benefits paid for
employees. Napleton paid the employee health insurance bills
for Russell and family every month after June 2017 until sending
him the COBRA letter on October 27, 2017. Office Manager
Pam Griffin testified that she reviewed the statements and paid
the bills received from the health insurance company monthly.
These statements listed every covered employee and family
member and the amount Napleton was paying for each. Can-
celled employee or family subscribers were noted on the state-
ments.6
In addition, as had been the case under Weil, once Napleton
as defined in the Act.
5 The reference is to the Consolidated Omnibus Budget Reconcilia-
tion Act (COBRA), 29 U.S.C. § 1161 et seq. COBRA provides for the
extension of medical care coverage to employees, their spouses and de-
pendent children who would lose such coverage because of termination
or a reduction of work hours. COBRA requires employers to give such
employees, spouses and dependent children written notice of their rights
under the law to continue at their own expense to participate in the em-
ployer's group medical plan for a period of 18 months subject to obtain-
ing similar coverage through re-employment prior to that time.
6 In addition to Griffin’s testimony, handwritten notes on the state-
ments indicate that, as one would expect, these statements were reviewed
before payment. For the statement due July 1, covering July 1-August 1,
someone (perhaps Griffin) noted that Napleton was being charged for the
Weil family, whose coverage, according to the note, had been cancelled
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
took over the dealership, Russell continued to be listed as an em-
ployee on the weekly tracking of technician bookings (GC Exh.
10 at 5–10). For each week, on the listing of technicians’ booked
work, the word “Disabled” was handwritten across the chart
where bookings would otherwise have been listed for Russell.
Russell also regularly checked in with Napleton management
at the facility. Russell testified that at his doctor’s appointments,
which occurred every four to six weeks, the doctor’s office
would provide him with a “work status report” to provide to his
employer. (See, GC Exh. 5.) These status reports indicated
whether the employee could perform regular, restricted, or no
work, and contained comments about his work restrictions. Rus-
sell testified that his doctor was located in Libertyville, and thus,
after his doctor’s visits he would go to the dealership and give
them a report on his potential work status. This practice began
under Weil in February 2016 and continued during the period
Napleton operated the dealership.
The General Counsel placed in evidence work status reports
that Russell credibly testified that he provided to Napleton, and
that led him to visit the dealership on June 28, 2016, July 26,
2016, August 23, 2016, September 20, 2016, and October 25,
2016. Normally, on his visits he would see and provide medical
forms to Napleton’s HR employee Shannon Lindgren, who
worked under Office Manager Pam Griffin. He would also stop
and talk with Service Manager Inman, and the subject of when
he thought he could return to work would come up each time.
Russell testified that on June 28, 2016, he spoke with Inman in
the dispatch office and on this date Inman “was asking how I was
doing, and when I was coming back.” Russell testified that In-
man was saying, “We’re really busy. We could use you. When
are you coming back. I told him I have to go with the full phys-
ical therapy and see where it goes.” When Russell came to the
dealership after his July 26, 2016 medical appointment, this time,
accompanied by his wife, Inman asked when he was returning to
work and then invited Russell to a meeting planned for August 4
where Napleton was going to discuss with employees a potential
change in health insurance coverage for employees. During that
visit Lindgren told Russell that “there is a possibility they’re go-
ing to change [health insurance]—a representative would be
there for us to fill out forms to enroll.” Lindgren instructed Rus-
sell to attend the August 4 meeting, and he did. Russell testified
that most of the mechanics were present at the meeting, as well
as Napleton Office Manager Pam Griffin, and an insurance rep-
resentative, Pat Keenan, who answered questions and provided
health insurance enrollment evaluation forms for the employees
to complete. Russell and his wife completed the form at home
and faxed it to Lindgren. About a month later, Keenan got in
touch with Russell and asked for additional information on his
wife’s medication, which Russell provided and faxed back to

June 20. The next month there was an adjustment on the statement for
the Weil family charges. There was also a note to send a follow-up fax
about the cancellation of another former employee’s coverage.
7 Russell’s testimony about being invited to attend and attending the
insurance meeting is unrebutted. Lindgren did not testify. Griffin testi-
fied but did not address the insurance meeting. Inman testified but did
not address the matter. I credit Russell’s testimony.
8 Russell’s affidavit stated in a handwritten correction, as represented
by the Employer’s counsel—the document was not marked, admitted, or
Keenan.7
On or about August 13, Russell attended a union organizing
meeting with nine or ten other employees at a Mexican restaurant
in Libertyville. Later, probably in September, although the rec-
ord is not entirely clear (Tr. 102) Russell told Inman that he at-
tended this dinner (and that he had heard it was better than the
employer-conducted mandatory lunch meetings that employ-
ees—but not Russell—attended in September.8
On August 23, Russell visited the dealership after his doctor’s
visit. He testified that he was with his wife and that he spoke to
Lindgren and then Inman. Russell testified that when he first
saw Inman, Inman told him, “I don’t know why you guys
couldn’t have waited to see how things played out before you
bring the union in.” Russell told him, “Well, we really didn’t
have a choice because of the stuff that was being taken away
from us.” Russell testified that his wife mentioned that her father
was “in the union, and it worked out well for him.” Inman reit-
erated, “I just don’t know why you guys couldn’t have waited.”
Inman and Russell then discussed his medical progress and when
he might be able to return to work.
On his September 20 visit, Russell testified that he talked with
Inman about returning to work and Inman again raised the union,
stating, “Why couldn't you just wait and see how things played
out?” Inman also told Russell “that with the union coming in,
people were going to get written up who were coming in late, if
you punched in late, you would be written up, so you would be
reprimanded that way, where, like—that's what he said.”
On October 14, 2016, Russell attended a second union meet-
ing at a pizza restaurant in Mundelein, Illinois, with ten or eleven
other employees.
On October 18, Russell voted in the representation election.
As noted, the Union won the election.
On October 25, Russell came into the dealership. He spoke
with Office Manager Pam Griffin because Lindgren was out on
leave. When he spoke with Inman, Inman told him,
Well, it looks like you guys had your way. You got the vote in.
You got the union in. And then he said to me, he goes, [i]t was
kind of shitty and sneaky for me to come in there and vote and
not even say hi to him. I said I didn't want to make a big deal
of it. I was just coming in to vote and leave. Then we discussed
when I’d be coming back.
A few days later Russell received a certified letter, dated Oc-
tober 27, from Pam Griffin, instructing him to make arrange-
ments to remove his toolbox and tools from the dealership and
enclosing the COBRA form. The COBRA form sent to Russell
stated:
Please make the selection below in regards to your health and
shown—that he later told Inman he attended an October 14 union meet-
ing. However, at trial, Russell credibly explained that the meeting he
“later told Scott” he attended was the August union meeting. Russell
explained at trial that he did not see Inman between the union vote on
October 18 and the October 14 union meeting. I found Russell credible
in his explanation that he told Inman about his attendance at the August
meeting and not about his attendance at the October meeting.
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 9
dental insurance. Please return as soon as possible.
I understand that as an employee whose employment has been
terminated that I have 60 days in which to elect continuation of
coverage fo [sic] 18 months. Once I elect COBRA my cover-
age will be reinstated and I understand that I must pay the full
premium [sic] and that this payment is DUE PRIOR TO THE
1ST OF EACH MONTH. If that payment lapses more then
[sic] 45 days at any time within the 18 months my health/dental
insurance will be cancelled, and that I have no recourse for re-
instatement.
Payments are to be made payable to Napleton Cadillac and
mailed to
1050 S. Milwuakee [sic] Ave
Libertyville IL 60048
Attention: Shannon Lindgren
(original emphasis).
The bottom of the form had space for Russell to elect or
decline family or single coverage, the monthly cost to
him, and a place to sign his name and date the form.
Russell came to the dealership on November 4 and picked up
his tools with a trailer and truck. He spoke to some of the em-
ployees and Inman came outside and spoke to Russell in the
parking lot.
Inman told Russell, “I’m sorry this happened.” Inman told
Russell it wasn’t up to him, (Inman), “but with everything that
happened, he was just sorry about it.”
While they were talking, a fellow employee mechanic, Bill
Oberg walked by. Inman told Russell, “That’s the guy who
started all this.” Russell told Inman, “If you think Bill did that,
there were other people who got the union in here. It wasn’t Bill.
And if you’re going after Bill, you’re going after the wrong per-
son.” Inman responded, “Really?” Russell told him “yes.”
While at the dealership Russell submitted his COBRA forms,
choosing the family option. However, he called back a few days
later and asked Lindgren for another form so that he could
choose a less expensive COBRA continuation option, covering
just him and his wife. This second COBRA form letter from
Lindgren now listed a space marked “Termination Date” and the
date October 27, 2016, was hand-written in the space for Termi-
nation Date.

9 Inman’s testimony was extremely vague, lacking in specifics, and
often resorted to a lack of recollection on a variety of subjects. On direct
his testimony was the product of leading questioning, and on cross-ex-
amination he exhibited particular difficulty with memory in a manner
that did not build confidence in his credibility. His testimony is not cred-
ited over contrary testimony of Russell that was more credibly offered.
Having said that, little of Russell’s testimony was contradicted in any
fashion. As to a few points where there were contradictions: Inman tes-
tified that he first learned of the union activity in “[r]oughly August ’16,”
but then was led (Tr. 402) to say that he was not aware of the union ac-
tivity prior to receiving the petition (which was filed September 23). He
then testified that he first became aware of union activity “basically when
they posted—they had some paperwork that they posted up in our—right
by our time clocks that evidently one of th[e] mechanics brought in.” I
find this wholly inadequate and unconvincing to contradict or undermine
Thereafter, Russell submitted monthly checks payable to
Napleton Cadillac, covering COBRA health insurance payments
for himself and his wife.
Griffin testified that in October—based on Napleton CFO Mi-
chael Jopes’ testimony it would have been a day or two before
the October 27 letter went out—she was “reconciling” the Blue
Cross Blue Shield statement and Russell’s “name appeared on
there” even though she knew he had not worked since the spring.
In fact, Russell and his family members had been on these
statements monthly since Napleton took over in June, and Griffin
reviewed the statements each month before paying the Blue
Cross Blue Shield bill. In fact, Napleton paid a total of over
$7000 in premium costs for Russell and his family between June
and the end of October.
Griffin reviewed these statements monthly but testified that
because she was busy taking care of other things involved with
the transfer from Weil to Napleton, she did not notice or bring
Russell’s status to the attention of Jopes until October (although
she and Jopes spoke at least weekly). Jopes testified that he did
not know Russell was on the insurance until Griffin “caught it”
in October. Griffin asked Jopes how to handle it. Jopes said he
would call her back. When he did he told Griffin to send Russell
“a COBRA letter.”
I note that I credit Russell’s testimony in full. It was offered
with credible demeanor, was fully plausible and, also im-
portantly, was essentially uncontradicted. Lindgren did not tes-
tify. Griffin testified, confirming that Russell “checked in with
the girl that did payroll upstairs”—assumedly Lindgren—when
he visited the dealership. Griffin did not dispute that Inman at-
tended the August 4 employee health insurance meeting. Inman
testified extensively, but for the most part did not contradict Rus-
sell’s testimony, and where he might be said to have done so, at
least by implication, he did not do so credibly.9 Shop Foreman
John Soffietti’s testified about the time
Russell came into the shop with his wife and spoke to Inman
with Soffietti nearby. He testified that there was no discussion
about the union, but he also testified that he “was mainly talking
to [Russell’s wife],” that he “wasn’t paying attention to what [In-
man] was saying,” did not hear everything that Inman and Rus-
sell discussed, and “was also working at the same time” on repair
orders that the conversation was occurring. Given the limitations
of his participation in the discussion with Inman and Russell,
Soffietti’s failure to hear any discussion of the union does not
Russell’s credibly offered testimony that Inman first mentioned the un-
ion to Russell on August 23, 2016, and, thus, knew of the union organiz-
ing efforts by that date. Inman also testified that during the Napleton
period of ownership, Russell had come in “once maybe twice randomly,”
and that the last time he talked to Russell was when he came in with his
wife, a visit Inman recalled as being “back in 2016. Maybe October. I
don’t remember.” However, Inman volunteered that “Now evidently he
may have been coming into the dealership even without my knowledge
to discuss his -- where he was.” Inman denied that in the last conversa-
tion with Russell anything other than Russell’s health, return to work, or
his wife’s health was discussed. Inman testified that he did not recall
speaking to Russell when he came to pick up his tools. I do not believe
him. I found Inman an unconvincing witness, and do not credit him on
the few areas his testimony is different than Russell’s.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
rebut Russell’s testimony.
David Geisler
David Geisler was a journeyman mechanic. He had worked
at Weil Cadillac for 22 years before beginning with Napleton in
June 2016. He supported the Union, attended the three union
meetings at area restaurants, but like other employees, did not
openly support the union at work out of fear of retaliation.
The union election was Tuesday October 18. On Friday Oc-
tober 21, CFO Jopes called Napleton’s attorney, Hendricks, and
told him “they had to lay off at least one technician.” Jopes told
Hendricks that “the productivity of the shop didn’t justify having
that many technicians and they needed to lay one off and try and
boost” productivity. The record shows that the following Mon-
day morning, October 24, Napleton CFO Jopes sent Napleton’s
attorney (and collective-bargaining representative) James Hen-
dricks an email, subject line “Bookings,” referencing their dis-
cussion the previous Friday. The note attached information
showing the week-by-week bookings for the technicians as well
as an excel spreadsheet summarizing the information.
On Wednesday October 26, 2016, Hendricks contacted Union
Business Representative Bob Lessman. Hendricks and Lessman
had worked together on different bargaining units in the past and
Hendricks called to tell Lessman that he was going to be the bar-
gaining agent for Napleton. Hendricks also called to tell Less-
man that Napleton was going to lay off one of the journeymen
technicians. Hendricks indicated that he did not know the name
of the technician at that time but that Napleton would be laying
off the least productive journeyman. Lessman told Hendricks
“that’s not how we do contracts. It’s always by seniority.” Hen-
dricks told Lessman that everyone had the same seniority date—
the date Napleton took over the facility earlier in the year. Less-
man said he wanted to use the Weil Cadillac seniority dates.
Hendricks said “no, I want it by productivity.”
Lessman asked Hendricks “to send me any documents he had”
on the productivity. Hendricks told Lessman he would send him
the information on productivity that he had gotten from Jopes.
Later that day, October 26, Hendricks forwarded to Lessman
the information Jopes had sent, stating:
Attached is the info we discussed today on the staffing/hours
issues at Napleton Cadillac. As you can see, the efficiency is
horrible. We are proposing the layoff at weeks end of the least
productive employee, until we have had negotiations on sen-
iority issues. Please call me with any questions you have.
The next morning, October 27, Lessman responded by
email, writing Hendricks:
Jim, I received the documents you sent, thank you. Since we
can not determine, just by looking at the numbers booked, if
there are issues with work distribution, amount of training each
technician has or lack thereof, what Classification each techni-
cian is (Journeyman, Apprentice, etc .. ), overstaffed service

10 I credit this testimony. Geisler’s testimony was offered with a slow,
understated, guileless, and truthful demeanor. He was not prone to ex-
aggeration or embellishment. I do not believe he made this up. Inman,
on the other hand, seemed sure of almost nothing, a font of imprecise and
hazy guessing. He was noticeably less cooperative and less able to recall
department and other underlying issues that may be part of the
problem, I would suggest that for the purposes of layoff, that
you use the pure seniority of the technicians by which classifi-
cation the Employer believes the employee is in at this time.
(This too also needs to be negotiated.)
This would be to use the original date of hire the technicians
had when it was Weil Cadillac. This way the potential layoff
will not be construed as retaliation or anti-Union animus. Also,
I would ask for a document that gives the technician recall
rights for 6 months. So that if/when the need arises to rehire at
the dealership in that classification, that employee would be re-
called.
I believe this is a proactive way in which we can move through
this issue on a positive side that shows cooperation between the
parties.
Thanks,
Bob
That afternoon, Hendricks sent an email to Lessman stating:
“They are laying off David Geisler, lowest booking tech for the
last 10 weeks. Hendricks confirmed at trial that this 10-week
period of lowest bookings was the criteria used for determining
who would be laid off.
Lessman did not respond to this email. Lessman testified that
in his view, Napleton was “just telling me” about the layoff,
“[t]hey weren’t offering to negotiate.”
Lessman testified that he did not request any additional infor-
mation “because I knew we were setting up for negotiations,”
and, in fact, the parties met to begin bargaining on or about De-
cember 8.
Lessman testified that there was one more phone call about
this with Hendricks, in which Lessman told Hendricks, “this isn’t
the way we would negotiate that, that he should not be laid off.
It should be done by pure seniority. There are too many factors.”
Lessman testified that Hendricks was intent on the layoff.
Near the end of the day, Thursday, October 27, 2016, Geisler
was called into Inman’s office. Inman told him he was being
“laid off for lack of hours.”
Just before Geisler got up to leave the office, Inman told Geis-
ler “that he asked us not to vote that way.”10
Geisler testified that he was surprised by the layoff. There had
never before been a layoff of a technician in all the years that
Geisler had worked for Weil or in his months with Napleton.
A few months later, in February or March 2018, Inman con-
tacted Geisler and asked him “if he would entertain the idea of
being rehired because business had increased.” Geisler turned
him down.
As far as the record indicates, the issue of a layoff at Napleton
was first decided upon by Jopes with Hendricks on Friday Octo-
ber 21, three days after the union election.
However, Napleton witnesses Renello and Inman each main-
tained at trial that the overall lack of work as well as productivity
events when questioned on cross-examination than he had been on direct
examination by counsel for Napleton. He did not deny making this state-
ment about unions and did not mention in it in his limited account of his
exchanges with Geisler.
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 11
issues, and a review of the issue over many weeks and months
led them to lay off the least productive journeyman mechanic.
Inman testified vaguely that he understood from Renello from
soon after Napleton took over the dealership that “It was required
that we wanted to get our shop as productive as possible” so that
the Libertyville store “could get on the same game plan that he
[Renello] had already been on with all these other stores” that
Napleton operated. According to Inman, this meant that unlike
Weil, Napleton kept track of productivity more systematically.
Weil had operated under “more of an honor system” in which
journeymen were credited with 30 hours of booked work per
week even if it was not always accurate. Inman understood that
Renello wanted journeymen to book “more than 40 hours” of
work weekly.
The closest Inman got to asserting that he and Renello talked
in advance about the possibility of a layoff was that he and
Renello discussed, at some unidentified time, “to some extent”
that “if you don’t have enough work in a shop to where all the
technicians are making a certain amount of hours, our target
would be at a minimum the guarantee [i.e., the 30 hours of
booked pay], but ideally the 40 hours that they actually clock. If
you don’t have enough work, at some point it has to be deter-
mined that maybe we have too many bodies working in that fa-
cility versus the amount of work that we have coming through
the door.” Inman testified that he and Renello talked about the
productivity of the facility but it “wasn’t just specifically on
Dave Geisler. . . . . We talked about everybody. And it wasn’t
any one person we wanted to single out.”
Inman did not have any group meetings regarding the produc-
tivity demands of Napleton. Rather, Inman testified on direct
examination, in very vague fashion, that he spoke “randomly”
with some of the journeymen about productivity issues over the
course of the time that Napleton operated the dealership. How-
ever, on cross examination he stated that Geisler was the only
employee he “specifically” talked to about productivity issues,
although others were also not making 40 hours of booked pay
per week.
Inman testified that “just guessing” he raised productivity is-
sues with Geisler in “early July, August, and then September.”
Indeed, Inman testified that he thought Geisler knew that “termi-
nation is coming,” something Geisler denied. Geisler main-
tained that raising production hours had only been mentioned
once or twice informally by Inman, about 6–9 months previ-
ously, during cigarette breaks the two took.
Inman testified that Renello tried increasing advertising which
helped business some, but “not enough to serve the purpose we
were after.” This led “[ultimately” to “where we have to lay off
people.” Inman described the layoff decision as a “mutual” one
between he and Renello, and Jopes “might have had some input
but basically it was Tony [Renello] and myself.” However, In-
man testified that he, more than Renello, suggested Geisler as the

11 Not only does this conflict with Inman’s testimony that Geisler was
not focused on between he and Renello until Inman offered Geisler’s
name as the employee who should be chosen for layoff, but, as Geisler
was terminated just four months (and a week) after Napleton took over
ownership, Renello’s statement that they began discussing Geisler within
the first 6 months tells us nothing.
one who should be laid off. According to Inman, “we decided to
. . . go after the weakest link, the guy that was most unproduc-
tive.” Asked if this was the first conversation when specifically
suggested that Geisler should be the one laid off, Inman testified
that “I don’t know.” Inman could not “recall exactly when” this
decision to lay off Geisler (or any employee) was made but tes-
tified that “just speculating,” the decision was made “[a]nywhere
from two weeks to a month” before the layoff occurred.
Renello testified extensively about the decision to lay off
Geisler. His story was different than Inman’s in some significant
ways.
He testified that within a few weeks of Napleton taking over
the dealership he realized that the biggest problem was that a
number of the journeyman technicians were not booking suffi-
cient hours. Rarely was anyone booking 40 hours a week, which
is what Renello testified was Napleton’s target or goal for em-
ployees to book. Renello testified that over the weeks of review,
Geisler “would stand out” as booking less than the other jour-
neymen.
In the (frustratingly) vague manner of all of the Respondent’s
witnesses, Renello testified that he began having conversations
with Inman specifically about Geisler “within the first six
months of our ownership,” and that he worked with Inman to try
to find out how they could help Geisler (“let’s see if we can
help,” “[l]et me know what he is lacking”), and that in these dis-
cussions Inman was Geisler’s biggest “advocate.”11
“At some point”—Renello could not say when—Renello tes-
tified that he told Inman, “we’ve got a few more weeks here”
before action had to be taken against Geisler. Renello also testi-
fied that he “knows” he talked with Geisler about his productiv-
ity—on a Wednesday—the day of the week he routinely visited
the store, “but I have nothing in writing to back up date, time,
place.” Ultimately, Renello testified that he directed that Geisler
be laid off because of his productivity, although he also testified
that “it was probably a joint decision between myself, Mike
Jopes and Scott Inman.”12 However, Renello testified that he
“can’t say the date because I don’t remember.” He also could
not recall the conversation with Jopes (“I am sure I did [talk to
him about Geisler] but I can’t remember, honestly. . . . There
were many issues we were looking at back then”). He testified
that the decision was something he made slowly, over time be-
cause people can have “bad weeks,” and he waits to see if it is a
trend. He testified that Geisler was not given any type of “pro-
bation period” because if “you start naming periods of time, peo-
ple start holding people’s feet to the fire way too quickly. . . . My
job is to keep as many great people as I can. Some of them aren’t
great when I see them. Some of them will be great in six or eight
months. I can live with that.” However, Renello also testified
that with Geisler he knew that “he wasn’t going to change, he
couldn’t do this . . . [a]fter an ample time had gone by, which my
general rule is five or six weeks.”13
12 Renello was asked on cross examination whether anyone else was
discussed as a potential candidate for layoff, and Renello said that they
“[m]ay have.”
13 Renello also testified that in Geisler’s case he looked at productiv-
ity figures in excel sheets he created, based on payroll information. He
looked at “five to six week bunches of numbers three or four times before
I knew,” that Geisler needed to be let go because “I don’t care about the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Napleton’s CFO Jopes also testified but his account of his in-
volvement was limited, and flatly contradicted by the record ev-
idence.
Jopes testified that he was only involved in one conversation
with Renello—or Inman, or both, he was not sure—about the
Geisler layoff. He testified that on October 27, “the day that
[Geisler] was laid off,” he received a call, either from Renello,
or Inman, or both “laying out the data that it may be time to lay
off a technician because none of the technicians were consist-
ently booking 40 hours of our whole staff.” Jopes testified that
he instructed them (Renello, or Inman, or both) “that we should
lay off the least productive of the technicians.” Jopes testified
that “when we had presented it all,” Jopes asked Renello “which
technician has been consistently the low producer? At which
point they presented the name and I said, well, that should be the
person to go; they all have the same seniority, and the lowest
producer should be the one to go.” Jopes recalled that Renello
agreed with this assessment. Jopes also testified that he checked
with Attorney Hendricks to advise him on the layoff as this
layoff—occurring at dealership with a recently certified union,
but where no “rules” had been negotiated on how the layoff
should be determined—was an “in-between” situation. Jopes de-
scribed this as “uncharted territory” for him, so he contacted
counsel to advise him on the layoff. Other than this instance, he
had not been involved in the past in the decision of whom to lay
off and was not otherwise involved here. Jopes also testified that
he had no role in assessing productivity of the technicians or re-
viewing such documents.
It is clear that Jopes is making this up. Contrary to his testi-
mony, the record evidence and Hendricks’ testimony shows that
on Friday October 21, 3 days after the election, Jopes called Hen-
dricks and told him that Napleton “had to lay off at least one
technician.” By the next Monday morning, Napleton’s attorney
raised the matter with the Union and forwarded the data showing
productivity information that Jopes had sent to him on Friday.
This means, of course, that Jopes’ testimony that he had no role
in the layoff until October 27, when he was called by Renello or
Inman about it, is in error. Contrary to his testimony the decision
was not made or left to Renello and Inman and was not made or
left to October 27.
Thus, as far as the credible record evidence suggests, the
layoff decision was made not the week after the union election,
but 3 days after the union election, when Jopes called his lawyer
on Friday October 21 and announced that Napleton “had to lay
off at least one technician.” There is no documentary evidence
of any earlier decision being made to lay off an employee.
The August 1, 2017 strike
In the wake of the Union’s representation election victory,
Napleton and the Union commenced bargaining for a labor
agreement on or about December 8, 2016. By August 2017, in
the Union’s view, negotiations had stalled.
On August 1, 2017, the Union commenced a strike against the
129 Chicago-area cardealers who were members of a

bad week or two. I care about 20 bad weeks, 15 bad weeks.” Renello
testified (Tr. 275–276) that the excel sheets he created and relied upon in
deciding on Geisler’s layoff were deleted every 4–5 weeks, and none that
multiemployer bargaining association known as the New Car
Dealer Committee (NCDC). Napleton Cadillac of Libertyville
was not a member of the NCDC. However, Napleton owned
about six other dealerships that were and that were the subject of
the strike.
In preparation for the NCDC strike, Napleton had discussed
with its Libertyville employees that the NCDC strike would pro-
vide additional work opportunities for Napleton. The afternoon
of July 31, Napleton had a meeting with its employees where, as
Renello recounted events, he told them:
Said, look, you guys have an opportunity. Everybody else it
looks like in the city of Chicago is going to go on strike. Ob-
viously, I am thinking, okay, you are not, I said obviously you
guys are not. What we will do for you is we will funnel the
work from Foley Cadillac, 15 miles away, to this Cadillac store
and you guys can come in as early as you like and stay as late
as you like, we will feed you steaks, you can make as money
as you want, we will bring their work here while they are on
strike.
Scott Inman was in the meeting with me. They were all
in the room. We gave them that option. We asked them if
there were any questions, how they felt about it, is every-
body good with it. All I got were smiles and head shakes,
yeah, yeah, yeah, yeah, we are great. Next thing I know, I
wake up in the morning. I got a phone call from Scott that
they are walking a picket line.
The Napleton employees struck the morning of August 1.
Renello testified that “[i]t caught us totally off guard.”
On the first day of the strike Napleton distributed a letter to
the striking technicians, hand-delivering it to the picketers in
front of the dealership. The letter, dated August 1, 2017, on
Napleton Auto Group letterhead, stated:
To All Service Technicians:
This is to let you know the consequences of your strike. While
we still intend to meet with your union on the 15th to continue
negotiations, we will do the following:
*Effective immediately you will receive a COBRA letter, as
we will not be paying for your health insurance. You will be
responsible for the premiums in their entirety.
*We have placed ads for replacement technicians. If and when
you are replaced, you will be notified. After you are replaced,
should you make an unconditional offer to return to work you
will be placed on a preferential hire list should an opening oc-
cur.
*Make arrangements to have your tool boxes removed from
the shop, as we do not want to be responsible for your tools
when you are not working.
It is unfortunate that you have chosen to strike, but that is the
choice you have made.
Napleton Cadillac
he relied upon in deciding on Geisler’s termination was still in existence
at the time of trial.
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 13
Renello testified that he and Jopes handed the letter to the
strikers and as they did he told each striker: “look, the toolboxes
have to be out of here in two days, if you put your uniform back
on we will help you push them back in, go back to work, we will
forget this ever happened. . . . [W]e’ll act like you guys never
walked out of the building.”
On either August 1 or 2, Napleton’s attorney, Hendricks,
called Union Business Representative Lessman and told him that
Napleton wanted the employees’ toolboxes removed. Lessman
told Hendricks, “Jim, these aren’t toolboxes that can be put in a
trunk,” something that Hendricks acknowledged. Lessman told
Hendricks “[i]t’s going to take some time.” Lessman said that
“[w]e have to get ahold of [Union Representative and Organizer]
Tony [Albergo],” whom the Union had given primary responsi-
bility to for this unit.
On August 2, Albergo received a copy of the letter Napleton
had distributed. He contacted Renello and told Renello that they
needed to negotiate a reasonable amount of time to have the
toolboxes removed. Renello told Albergo he (Renello) would
have to consult with Napleton’s attorney, Hendricks. Albergo
told Renello that the Union would “take legal action if the
toolboxes were removed.” Renello told him, “I don’t care. I
have my orders.”
Albergo called his directing business representative at the Un-
ion, Sam Cicinelli, and requested that Cicinelli contact Hen-
dricks. Cicinelli called Hendricks while Albergo stood in his of-
fice. Hendricks agreed that the employees would have until the
end of the day on Friday—August 4—to remove the toolboxes.
Albergo called Renello back and told him that the Union had an
arrangement with Hendricks that they would have until the end
of the week to remove the toolboxes. Renello said that he would
have to check on that. On Thursday morning August 3, Hen-
dricks called Cicinelli and told him “that he got his rear end
reamed from a dealer principal for giving me the authority to get
the toolboxes out by Friday.” Cicinelli told Hendricks “there’s
no way I can get these toolboxes,” and Hendricks told him “do
your best.”14
Renello testified that on August 2, he again approached the
Napleton strikers. He repeated that they could come back to
work and “we will act like this never even happened, just go back
to work.” Renello testified that he told them that “tomorrow we
are going to start pushing them [the toolboxes] out.”
On Thursday August 3, Napleton started removing the
toolboxes. That morning, Renello, Jopes, Inman, and two por-
ters from the Napleton Ford facility across the road, rolled the
employees’ toolboxes outside the fenced gates of the dealership
onto the service access driveway to the property. The toolboxes
were left uncovered and unattended there. Napleton called the
police in conjunction with this because, according to Jopes,
“[w]e wanted to make sure there was no trouble” when the

14 Lessman, Albergo, and Cicinelli’s testimony about their discus-
sions with Hendricks was undisputed. Hendricks testified but did not
deny (or address) this matter. I credit the union representatives’ undis-
puted testimony on these matters. In addition, Jopes testified that Hen-
dricks confirmed to him that he had offered the Union until August 4, to
remove the toolboxes, but Jopes had told him no.
15 Although it is not particularly material, there was significant con-
fusion on the part of numerous witnesses about the dates involved with
toolboxes were removed.
Albergo got a call from one of the employees saying that the
toolboxes were being removed from the dealership. Albergo
called Renello and told him there was an agreement not to re-
move the toolboxes until the end of the week. Renello told him,
“I don’t care at this point. I’m removing them.”
In the morning the weather was sunny and hot. But early in
the afternoon there was a heavy rainfall for about 30 minutes,
described by witnesses as a “torrential downpour.” Napleton
then pushed the toolboxes back inside. However, the toolboxes
belonging to employees Joseph Schubkegel and Bill Oberg sus-
tained rain damage. Schubkegel’s toolbox had sunk into the tar
pavement and because of that and the incline it was on, the man-
agers could not move it back into the cover of the dealership. It
sat outside through the heavy rain and then was covered in plas-
tic. Later in the afternoon, before the dealership closed, the man-
agers came and asked the employees to help push Schubkegel’s
toolbox in.
The next day, Friday August 4, the Union and employees ar-
ranged for a towing service to remove the toolboxes from Naple-
ton.15
Napleton did not demand removal or take steps to remove the
employee toolboxes from its six other stores that were on strike
against the NCDC. Renello volunteered at trial a reason why
Napleton did not have the toolboxes removed from its other
stores: “No, no. Most of our—the other technicians and the other
stores wanted to work through the strike. They just weren’t al-
lowed to.”
Analysis
I. THE UNLAWFUL DISCHARGE AND LAYOFF ALLEGATIONS
(PARAGRAPH VI OF THE COMPLAINT) AND THE ALLEGATION
TELLING AN EMPLOYEE HE WAS BEING LAID OFF BECAUSE OF THE
WAY EMPLOYEES VOTED (PARAGRAPH V(A) OF THE COMPLAINT)
The General Counsel alleges that Russell’s discharge and
Geisler’s layoff were in retaliation for the technicians’ decision
to unionize, and therefore violated Section 8(a)(3) and (1) of the
Act. The Respondent contends that the employees’ unionization
was not a motive for its actions against Russell and Geisler. Ra-
ther, it claims that in removing Russell and his family from the
employee insurance rolls it was moving to correct an oversight
regarding a never-hired employee who was inadvertently trans-
ferred over from the predecessor Weil Cadillac. As to Geisler,
the Respondent contends that his layoff was a nondiscriminatory
business decision, having nothing to do with the union drive, but
motivated by an effort to increase the dealership’s productivity
and rid itself of the least productive journeyman technician.
Section 8(a)(3) of the Act provides, in relevant part, that it is
“an unfair labor practice for an employer by discrimination in
regard to hire or tenure of employment or any term or condition
the toolbox removal issue. I have set forth my findings of the date on
which these events occurred in the text, which is based on the full context
and accounts of multiple witnesses. There is no real dispute among the
parties as to whether these events occurred, and I find that the conflicting
account of dates did not undermine any witnesses’ overall testimony on
the issue.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
of employment to encourage or discourage membership in any
labor organization.” 29 U.S.C. § 158(a)(3). Under Section
8(a)(3), the prohibition on encouraging or discouraging “mem-
bership in any labor organization” has long been held to include,
more generally, encouraging or discouraging participation in
concerted or union activities. Radio Officers' Union v. NLRB,
347 U.S. 17, 39–40 (1954); NLRB v. Erie Resistor Corp., 373
U.S. 221, 233 (1963). As any conduct found to be a violation of
Section 8(a)(3) would also discourage employees' Section 7
rights, any violation of Section 8(a)(3) is also a derivative viola-
tion of Section 8(a)(1). Chinese Daily News, 346 NLRB 906,
934 (2006), enfd. 224 Fed. Appx. 6 (D.C. Cir. 2007).
The Board’s Supreme Court-approved standard for cases turn-
ing on employer motivation is found in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied,
455 U.S. 989 (1982). See NLRB v. Transportation Management
Corp., 462 U.S. 393, 395 (1983) (approving Wright Line analy-
sis).
In Wright Line, the Board determined that the General Coun-
sel carries his burden by persuading by a preponderance of the
evidence that employee protected conduct was a substantial or
motivating factor (in whole or in part) for the employer's adverse
employment action. Proof of such unlawful motivation can be
based on direct evidence or can be inferred from circumstantial
evidence based on the record as a whole.16
Under the Wright Line framework, as developed by the Board,
the elements required in order for the General Counsel to show
that protected activity was a motivating factor in an employer's
adverse action are union activity, employer knowledge of that
activity, and antiunion animus on the part of the employer.17
Such showing proves a violation of the Act subject to the fol-
lowing affirmative defense: the employer, even if it fails to meet
or neutralize the General Counsel's showing of unlawful motiva-
tion, can avoid the finding that it violated the Act by “demon-
strat[ing] that the same action would have taken place in the ab-
sence of the protected conduct.” Wright Line, supra at 1089.
As developed by the Board, for the employer to meet its
Wright Line burden, it is not sufficient for the employer simply

16 Brink's, Inc., 360 NLRB 1206, 1206 fn. 3 (2014); Robert Orr/Sysco
Food Services, 343 NLRB 1183, 1184 (2004), enfd. 184 Fed. Appx. 476
(6th Cir. 2006); Embassy Vacation Resorts, 340 NLRB 846, 848 (2003).
17 Dish Network, LLC, 363 NLRB No. 141, slip op. at 1 fn. 1 (2016);
Hawaiian Dredging Construction, Co., 362 NLRB No. 10, slip op. at 3
(2015), enfd. denied on other grounds, 857 F.2d 877 (D.C. Cir. 2017);
Libertyville Toyota, 360 NLRB 1298, 1301 (2014); enfd. 801 F.3d 767
(7th Cir. 2015).
18 El Paso Electric Co., 355 NLRB 428, 428 fn. 3 (2010) (finding of
pretext raises an inference of discriminatory motive and negates rebuttal
argument that it would have taken the same action in the absence of pro-
tected activities); All Pro Vending, Inc., 350 NLRB 503, 508 (2007);
Rood Trucking Co., 342 NLRB 895, 897-898 (2004), citing Laro Mainte-
nance Corp. v. NLRB, 56 F.3d 224, 230 (D.C. Cir. 1995) (“When the
employer presents a legitimate basis for its actions which the factfinder
concludes is pretextual . . . . the factfinder may not only properly infer
that there is some other motive, but that the motive is one that the em-
ployer desires to conceal—an unlawful motive”) (internal quotation
omitted); Pro-Spec Painting, 339 NLRB 946, 949 (2003) (noting that
where an employer's reasons are false, it can be inferred that the real
to produce a legitimate basis for the adverse employment action
or to show that legitimate reasons factored into its decision. T.
Steele Construction, Inc., 348 NLRB 1173, 1184 (2006). Rather,
it “must persuade that the action would have taken place absent
protected conduct by a preponderance of the evidence.” Weldun
Int'l, 321 NLRB 733 (1996) (internal quotations omitted), enfd.
in relevant part 165 F.3d 28 (6th Cir. 1998). See NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983) (approving
Wright Line and rejecting claim that employer rebuts General
Counsel’s case by demonstration of a legitimate basis for the ad-
verse employment action). In such cases, the Board will not
weigh the relative quantity or force of the unlawful motive com-
pared to the lawful motive: the violation is established if the em-
ployer fails to prove it would have taken the action in the absence
of protected activity. Wright Line, supra at 1089 fn. 14.
Notably, evidence that an employer's rationale for adverse ac-
tion is pretextual adds to the strength of the General Counsel's
prima facie case of discrimination.18 Indeed, where “the evi-
dence establishes that the proffered reasons for the employer's
action are pretextual—i.e., either false or not actually relied
upon—the employer fails by definition to show that it would
have taken the same action for those reasons, regardless of the
protected conduct.”19
I note at the outset that the General Counsel’s theory of viola-
tion, as argued in his brief, is not that Geisler or Russell were
severed from employment in retaliation for their individual un-
ion activity. Their individual union activity, to the extent known
to the Employer, did not stand out. However, it is well-settled
that the General Counsel need not prove that each individual dis-
criminatee was a union supporter or that the Respondent was
aware of each discriminatee’s union support, where an employer
takes adverse action against employees, regardless of their indi-
vidual sentiments toward union representation, “in order to pun-
ish the employees as a group ‘to discourage union activity or in
retaliation for the protected activity of some.’”20
In this case the General Counsel claim is that Geisler and Rus-
sell were let go in retaliation for the unit employees’ decision to
unionize. Pursuant to this theory, the first two prongs of the
motive is unlawful if the surrounding facts reinforce that inference.) (ci-
tation omitted).
19 David Saxe Productions, 364 NLRB No. 100, slip op. at 4 (2016);
Rood Trucking, 342 NLRB at 898, quoting Golden State Foods Corp.,
340 NLRB 382, 385 (2003); Frank Black Mechanical Services, Inc., 271
NLRB 1302, 1302 fn. 2 (1984) (noting that “a finding of pretext neces-
sarily means that the reasons advanced by the employer either did not
exist or were not in fact relied upon, thereby leaving intact the inference
of wrongful motive established by the General Counsel”).
20 Electro-Voice, Inc., 320 NLRB 1094, 1095 fn. 4 (1996) (quoting
ACTIV Industries, 277 NLRB 356 fn. 3 (1985) and citing additional cases
therein); J.T. Slocomb Co., 314 NLRB 231, 241–243 (1994) (layoff de-
signed to chill employees’ union support without regard to discrimi-
natees’ particular union activities or sympathies unlawful); Birch Run
Welding, 269 NLRB 756, 764–765 (1984) (endorsing theory “that Re-
spondent engaged in a general retaliation against its employees because
of the union activities of some of its employees in order to frustrate all
union activities, even though some of those employees caught in the re-
taliatory net were not involved in union activities”), enfd. 761 F.2d 1175,
1180 (6th Cir. 1985); Pyro Mining Co., 230 NLRB 782 fn. 2 (1977)
(“The layoff itself not the selection of employees, was unlawful”).
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 15
General Counsel’s Wright Line burden are easily met. Collec-
tively the employees chose to engage in union activity—they pe-
titioned for and then voted for union representation—and, of
course, the employer was aware of this activity: after the petition
was filed Napleton conducted employee meetings to discourage
employees from voting for the Union and the election was con-
ducted on Napleton’s property. Moreover, the evidence shows
that the Respondent, specifically Inman, was aware of the em-
ployees’ union organizing by August 23.
The third prong of Wright Line—an assessment of the Re-
spondent’s antiunion animus and whether it meets the General
Counsel’s burden to persuade that protected conduct was a mo-
tivating factor for the actions against Russell and Geisler—re-
quires more explication.
In support of this third prong of Wright Line, the General
Counsel relies upon several indicia of discriminatory motivation.
I will begin with Russell. First, and most directly, Inman al-
luded to the employees’ decision to unionize in comments made
to Russell suggesting that this was why action was being taken
against him.
Inman’s comments to Russell on November 4—when Russell
came to the dealership to comply with the directive to remove
his toolbox—directly connected the employees’ union activities
to the action being taken against Russell. Inman approached
Russell and apologized, telling him “I’m sorry this happened,”
and adding, that it was not up to him, “but with everything that
happened, he was just sorry about it.”
Given the remarkably close timing between the October 18
union election and the next week notice to Russell that he was
effectively terminated and to get his toolbox out of the dealer-
ship, it would be reasonable—perhaps, unreasonable not—to
find, with nothing more, that Inman was referencing the union
drive as an explanation for Russell being severed. But there is
more. Employee Olberg walked by and Inman again raised the
union campaign, telling Russell that “That’s the guy who started
all this,” to which Russell responded, “If you think Bill did that,
there were other people who got the union in here. It wasn’t
Bill.” Inman responded, “Really?” This only adds to the con-
clusion that when Inman attributed the action against Russell to
“everything that happened,” he was referencing the union drive.
And this conclusion is further reinforced by consideration of
the fact that on Russell’s monthly visits to the dealer after the
union drive began, Inman repeatedly complained to Russell
about the union drive: “I don’t know why you guys couldn’t have
waited to see how things played out before you bring the union
in” (August 23); “Why couldn’t you just wait and see how things
played out?” (September 20). And on October 25, one week af-
ter the representation election, Inman expressed open pique with
the union drive: “Well, it looks like you guys had your way. You

21 At the same time, I neither reach nor rely on the General Counsel’s
contention that certain of Inman’s statements, which appear to be lawful
statements (some, albeit perhaps only arguably so) designed to convince
employees to vote against the Union, provide further evidence of animus
supporting the General Counsel’s Wright Line case. Given the other ev-
idence of animus that I have found, it is unnecessary to consider or rely
upon these other lawful, or, in any event, not clearly unlawful, statements
made by Inman. See, GC Br. at 6–7.
got the vote in. You got the union in.” Then Inman complained
to Russell that “It was kind of shitty and sneaky” for Russell to
come in to vote on October 18, and “not even say hi” to Inman.
I find that Inman’s November 4 apology to Russell impliedly
referenced the union campaign and election as motivating the ac-
tion against Russell. Thus, there is evidence not just of employer
anti-union animus, but evidence of that animus as motivation for
the action taken against Russell.
I also find support for the General Counsel’s case in Inman’s
comment to Russell, on September 20, “that with the union com-
ing in, people were going to get written up who were coming in
late, if you punched in late, you would be written up, so you
would be reprimanded that way, where, like—that's what he
said.” While not alleged as an unfair labor practice—and there-
fore I do not find it to be a violation—this is a clearly unlawful
threat. Vista Del Sol Healthcare, 363 NLRB No. 135, slip op. at
20–21 (2016); Jennie-O Foods, Inc., 301 NLRB 305, 310
(1991). It is evidence of antiunion animus that supports the Gen-
eral Counsel’s prima facie Wright Line case. See, Brinks, Inc.,
360 NLRB 1206 fn. 3 (2014) (“it is well established that conduct
that exhibits animus but that is not independently alleged or
found to violate the Act may nevertheless be used to shed light
on the motive for other conduct that is alleged to be unlawful”).21
Finally, a very important indication of animus in this case is
timing. The Board has long recognized that in discrimination
cases unexplained timing can be indicative of animus.22
Here, the action against Russell occurred the week after the
union election. Notwithstanding this, the Respondent’s position
is that the close proximity in time of the union election and the
action against Russell was entirely coincidental. One had noth-
ing to do with the other. This is unconvincing.
In the case of Russell, the Respondent’s explanation simply
reeks of fabrication. The Respondent claims that Griffin, busy
with all manner of work arising from the transfer of Weil to
Napleton, noticed for the first time in late October, while going
through the health insurance provider statement, that Russell’s
name was there, knew he was not an employee, called Jopes, who
told her to send Russell a COBRA letter to “formally inform Mr.
Russell that he was not employed by Napleton.” Is this possible?
I do not believe it.
Here we have a longtime Weil employee, personally known
to Griffin and Inman, who, although on workers’ compensation,
regularly comes into the dealership during Napleton’s ownership
to discuss with Inman his ability to return-to-work. Russell is
listed on Napleton’s weekly booking sheets as an employee and
each week is listed as “Disabled” across from his name. His
tools and toolbox remain at the Napleton dealership from the
time Napleton took over the dealership in June until the time he
is ordered to remove them in late October. Russell is invited and
22 Electronic Data Systems, 305 NLRB 219, 220 (1991), enfd. in rel-
evant part 985 F.2d 801 (5th Cir. 1993); North Carolina Prisoner Legal
Services, 351 NLRB 464, 468 (2007), citing Davey Roofing, Inc., 341
NLRB 222, 223 (2004) (timing of employer's action in relation to pro-
tected activity provides reliable evidence of unlawful motivation); La
Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002), enfd. mem. 71
Fed. Appx. 441 (5th Cir. 2003); Yellow Transportation, Inc., 343 NLRB
43, 48 (2004); Structural Composite Industries, 304 NLRB 729, 729
(1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
then instructed to attend and does attend an August 4 employee
meeting at the Respondent’s worksite to learn about and sign up
for new employee health insurance. Afterwards he exchanges
faxes and information with the Respondent’s HR representative
and with the Respondent’s insurance broker. Russell then shows
up and votes in the onsite Napleton representation election (with-
out any evidence of objection). Finally, and, perhaps even more
significantly, Russell and his family members appear every
month on the bill from the insurance company that Griffin ad-
mitted reviewing and paying every month, with their individual
costs of coverage set out in plain sight. Indeed, Napleton was
billed and paid a total of over $7000 for Russell and his family’s
health insurance from June through September. Yet with all this,
the contention is that neither Griffin nor anyone else noticed this
“mistake” of treating Russell like an employee on leave—it
“slipped by us until it was caught in October”—until just days
after the union election when Griffin reviewed the October in-
surance bill, at which time she alerted Jopes and Russell was re-
moved from the rolls forthwith.
This is very farfetched. I find that it is not true that Russell
and his presence on Napleton’s rolls did not come to the attention
of Napleton until a few days after the union election. (Surely
someone wondered why he was voting in the representation elec-
tion, or why Inman hand-
wrote “Disabled” across from his name on the employee list?).
This is a case where the timing of the adverse action is highly
suspect, not otherwise credibly explained, and therefore strongly
supportive of an inference of discriminatory motive for Russell’s
removal.
In short, I do not believe the Respondent’s explanation for
how it came to terminate Russell from its insurance rolls on Oc-
tober 27. This conclusion that the Respondent's explanation for
the Russell termination is a pretext not only adds to the weight
of the General Counsel's case, but seals it shut, as it pretermits
the “need to perform the second part of the Wright Line analy-
sis.” Rood Trucking, supra.
That is the end of the matter, but I further note that other than
this fantastic claim that it did not notice Russell until immedi-
ately after the election, the Respondent offers nothing else of
substance in an effort to show it would have taken action against
Russell in the absence of the employees’ union activity. Its brief
is devoted to a series of ad hominem and nonsequitur attacks on
Russell and his credibility. They are not compelling in any
way.23
Finally, the Respondent claims that Russell was never hired
and was not an employee of Napleton. I do not agree. The evi-
dence is that Russell was an employee of Napleton but out on

23 Thus, I neither observed nor detected anything in the record, or in
Russell’s demeanor, to substantiate the claims of the Respondent (R. Br.
at 8) that Russell was “disingenuously dishonest” or “best characterized
as the greedy scheming plaintiff who is determined to generate an ill-
gotten windfall for himself and his family.” Nor, contrary to the Re-
spondent’s claim (R. Br. at 8), is the observation that Russell, and not the
Union, filed the charge in his case probative of anything in assessing
Russell’s credibility. Similarly, nothing is to be gleaned from the claim
(R. Br. at 8) that “Russell himself is uncertain as to how he is personally
wronged, because he is maintaining a parallel charge of discrimination
against Napleton.” The issue is not Russell’s certainty of Napleton’s
leave for disability. This is how he was treated by Napleton.
Thus, his name was on the weekly employee booking hours—
but marked disabled—he was told to and did keep Napleton ap-
prised of his medical condition and regularly discussed with In-
man the possibility of returning to work. He voted in the union
representation election conducted at Napleton for Napleton em-
ployees. He attended employee meetings sponsored by Napleton
to discuss and apply for changes to the health insurance. And,
of course, Napleton had Russell and his family on the employee
insurance and paid for his insurance monthly. He was an em-
ployee out on leave. The fact that Geisler transferred from Weil
without performing work for Napleton is not determinative. No-
tably, the Respondent hired every service technician of Weil
without requiring an application or other affirmative steps to se-
cure the job.
Obviously, and intentionally, as shown by the COBRA letter
it sent Russell (indicating that he was “an employee whose em-
ployment has been terminated”), by Griffin’s letter telling him to
make arrangements to remove his toolbox, by the follow-up
COBRA letter in which the words “termination date” were typed
in and the date October 27, 2016, handwritten in, it is clear and
undisputed, that by terminating Russell’s insurance Napleton
was severing any further employment relationship or obligations
of an employment relationship that existed between Russell and
Napleton. This was a discharge.
In short, I find that Russell was an employee of Napleton, al-
beit on leave, at all times after Napleton took over the Weil car
dealership in June 2016. Russell was discharged from Napleton
on October 27, 2016.
For all of the foregoing reasons, I find that the Respondent
discharged Russell on October 27, 2016, in retaliation for the
employees’ selection of union representation and in violation of
Section 8(a)(3) and (1) of the Act, as alleged.
As to Geisler, the General Counsel’s initial Wright Line bur-
den is met by the same type of evidence indicating animus on the
part of the Respondent as discussed with regard to Russell. Most
prominently, as it did with Russell, the Respondent specifically
linked Geisler’s layoff to the union vote: Inman abruptly told
Geisler near the end of the October 27, 2016 meeting in which
he laid off Geisler, that he asked the employees “not to vote that
way.” In the context of a meeting to issue a layoff, this is a ver-
itable admission that “vot[ing] that way” motivated the layoff, at
least in part.24
Finally, as with the action against Russell, the timing of Geis-
ler’s layoff is highly suspect, and adds to the General Counsel’s
showing that unlawful animus was a cause for Geisler’s layoff.
The strength of the inference of discrimination to be drawn
motives, but, rather, an assessment, in the context of a full record, of
Napleton’s motives. Whether disability discrimination was also at work
in these events is not a matter I reach.
24 The General Counsel alleges, referencing complaint allegation par.
V(a), that in addition to serving as evidence in support of the unlawful
layoff allegation, Inman’s suggestion to Geisler that the layoff was the
result of employees’ “voting that way”—i.e., for union representation—
independently violated Sec. 8(a)(1). I agree. It reasonably tends to in-
terfere with employees’ Sec. 7 right to vote for a union to suggest that
this protected activity provoked a layoff.
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 17
from the timing of Geisler’s layoff is accentuated by the com-
plete lack of nonsuspicious explanation for the timing offered by
the Respondent.
Here, it is useful to consider the Respondent’s explanation of
the layoff—a decision that three of the Respondent’s witnesses
(Inman, Renello, and Jopes) attributed to Geisler’s productivity
problems, and more generally, the entire bargaining unit’s prob-
lems with productivity. However, a review of their testimony
indicates that the timing of the layoff is highly suspicious.
To begin with Jopes, his version of events is flatly contra-
dicted by the record evidence and the testimony of Attorney
Hendricks. Jopes testified that his involvement in this layoff oc-
curred on October 27, the day of the layoff, when Renello, or
Inman, or both—the witness could not remember—called him
“laying out the data” that it “may be time to lay off a technician.”
Jopes told them that the “low producer”—who they identified to
him as Geisler—should be the employee laid off. Jopes also tes-
tified that because this layoff was occurring in an unfamiliar le-
gal terrain for him—no longer a nonunion shop, but also not a
union shop with a labor agreement dictating the order of layoff—
he discussed the matter with Attorney Hendricks.
The problem with this testimony is that Hendricks’ testimony
and the email records indicate that Jopes called Napleton’s attor-
ney, Hendricks, on Friday October 21, three days after the union
election, and told him “they had to lay off at least one techni-
cian.” Hendricks contacted the Union about this Monday morn-
ing October 24, indicating that Napleton was going to lay off an
employee at the end of the week. Thus, contrary to Jopes’ testi-
mony, he was involved in and communicated the intention to lay
off a technician just three days after the union election, not the
following week.
This make the timing of the decision to lay off more not less
suspect, as this is the earliest record documentary reference to
the decision—and it is just 3 days after the union election and
contradicts the testimony of the Respondent’s CFO.
The Respondent’s other witnesses shed no further credible
light on when the layoff decision was made, or why it was made
when it was. There is no documentation—no notes, no email, no
message slips, no report, nothing—that indicates any discussion
of layoffs prior to the Friday October 21 reference (that is con-
tained in an October 24 email).
It is true that Renello and Inman testified that productivity
concerns leading to the layoff decision developed slowly over
the course of the four months that Napleton owned the dealer-
ship. However, neither was able to date when the decision to
conduct a layoff was made, or when the decision to lay off Geis-
ler was made. Asked this question, Inman said “I don’t recall
exactly when.” Asked how much time elapsed between the de-
cision and the layoff on October 27, Inman said, “Anywhere
from two weeks to a month. I am just speculating.” Particularly
given the haziness of his memory on nearly every subject he was
asked about I put no stock even in this vague answer, which if
credited, would not do much to aid the Respondent’s defense.
But as Inman was quick to add, his testimony on this point was
no more than rank “speculation.” Renello, for his part, resisted
all attempts to date the layoff decision, repeatedly retreating to a
formulation that it was a decision many months in the making,
based in part on productivity records that he routinely deleted,
and deleted in this instance. Renello testified that six to eight
months was a reasonable time period to give an employee to turn
his or her productivity around, although Geisler was laid off four
months after Renello assumed management responsibilities at
Napleton at Libertyville. All of this, in turn, was contradicted by
Hendricks, who testified at trial that a 10-week period of lowest
bookings was the criteria used for determining that Geisler
would be laid off. That 10-week period, set out on an excel
spreadsheet sent to the Union, ended on October 14, meaning the
decision could not have been made before that time—within a
few days of the representation election.
For purposes of the Wright Line analysis, I will assume with-
out deciding that the Respondent had a basis rooted in produc-
tivity concerns for undertaking a layoff, and specifically for
choosing Geisler to lay off. In other words, I will assume this is
a “dual motive” case and that the Respondent had legitimate
grounds for a layoff. However, this is plainly insufficient for the
Respondent to meet its burden of proving “that the same action
would have taken place in the absence of the protected conduct.”
Wright Line, supra at 1089.
As developed by the Board, for the employer to meet its
Wright Line burden, it is not sufficient for the employer simply
to produce a legitimate basis for the adverse employment action
or to show that legitimate reasons factored into its decision. T.
Steele Construction, Inc., 348 NLRB 1173, 1184 (2006). Rather,
it “must persuade that the action would have taken place absent
protected conduct by a preponderance of the evidence.” Weldun
Int'l, 321 NLRB 733 (1996) (internal quotations omitted), enfd.
in relevant part 165 F.3d 28 (6th Cir. 1998). See NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983) (approving
Wright Line and rejecting employer's claim that its burden in
making out an affirmative defense is met by demonstration of a
legitimate basis for the adverse employment action). This means
that in the face of the General Counsel’s prima facie case it must
prove that it would have taken the same action—i.e., that it
would have laid off Geisler on October 27—in the absence of the
employees’ union activity. See, Cayuga Medical Center, 365
NLRB No. 170, slip op. at 33 (2017); ManorCare Health Ser-
vices, 356 NLRB 202, 228 (2010) (employer's Wright Line bur-
den requires it to prove “it would have taken the same action
against” employees in the absence of union activity), enfd. 661
F.3d 1139 (D.C. Cir. 2011).
The Respondent has failed to meet this burden. Here we have
a layoff, that by all (albeit limited) evidence was decided upon
for the first time 3 days after the union election, carried out the
week following the union election with a reproof from the ser-
vice manager that he had asked the employees “not to vote that
way.” This firmly establishes the General Counsel’s initial
Wright Line case that the employees’ union activity was a reason,
at least in part, for the Respondent’s actions. In rebuttal, the Re-
spondent offers nothing to show that it would have taken this
action when it did in the absence of the union activity. In partic-
ular, the suspicious timing of the layoff is completely unrebutted.
The Respondent’s witnesses offer no credible explanation for
when the decision was made or why it was made in the wake of
the union election. The record evidence suggests the decision
was made three days after the election, when Jopes discussed the
matter with the Respondent’s attorney, which only reinforces the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
suspiciousness of the timing. The General Counsel’s case, which
proved that Geisler’s layoff was motivated, at least in part by the
employees’ union activity, is unrebutted and proves the viola-
tion. I find that Geisler’s layoff was unlawfully motivated, in
violation of Section 8(a)(3) and (1) of the Act, as alleged.
II. THE CREATION OF IMPRESSION OF SURVEILLANCE ALLEGATION
(PARAGRAPH V(B) OF THE COMPLAINT)
The General Counsel alleges that Inman’s identification to
Russell of employee Oberg, as he walked by, as “the guy who
started all this,” constitutes the creation of an impression of sur-
veillance of union activities, in violation of Section 8(a)(1) of the
Act.
An employer unlawfully creates the impression of surveil-
lance in violation of Section 8(a)(1) of the Act when, under all
the relevant circumstances, its statements or actions would rea-
sonably lead employees to assume that the protected activities
were the subject of surveillance. For instance, a supervisor re-
vealing to an employee that he has knowledge of the union ac-
tivity of other employees would reasonably be construed as im-
plied surveillance of union activity. Liberty Kitchen, Inc., 366
NLRB No. 19, slip op. at 9 (2018). “Specifically, the Board has
found that an employer unlawfully creates the impression of sur-
veillance when it ‘tells employees that it is aware of their union
activities, but fails to tell them the source of that information’
because the ‘employees are left to speculate as to how the em-
ployer obtained its information, causing them reasonably to con-
clude that the information was obtained through employer mon-
itoring.’” Charter Communications, LLC, 366 NLRB No. 46,
slip op. at 4–5 (2018), quoting Stevens Creek Chrysler Jeep
Dodge, 353 NLRB 1294, 1296 (2009) (emphasis in original),
affd. and incorporated by reference 357 NLRB 633 (2011).
Moreover, “[t]he Board has long held that, when, in comments
to its employees, an employer specifically names other employ-
ees as having started a union movement or as being among the
union leaders, the employer unlawfully creates the impression,
in the minds of its employees, that he has been engaged in sur-
veillance of his employees' union activities.” Royal Manor Con-
valescent Hospital, Inc., 322 NLRB 354, 362 (1996), enfd. 141
F.3d 1178 (9th Cir. 1998).
This is precisely what Inman did here. He identified Oberg
by name to Russell as “the guy who started all this.” The re-
mainder of the conversation made explicit that Inman was refer-
ring to the union drive at Napleton. He did not tell Russell the
source of that information. As the General Counsel points out,
the undisputed record evidence is that during the union campaign
the technicians did not openly discuss the union at work for fear
that management would retaliate against them. Thus, there is no
basis in the record evidence that would reasonably lead Russell
to believe that Inman had formed an opinion through open means
as to who had started or been active in the union drive. The fact
that Russell did not believe Inman was correct in his opinion is
of no consequence. Inman unlawfully created the impression
that the employees’ union activities had been surveilled by em-
ployer. I find the violation of Section 8(a)(1), as alleged.

25 An employer's violation of Sec. 8(a)(5) of the Act is also a deriva-
tive violation of Sec. 8(a)(1) of the Act. ABF Freight System, 325 NLRB
III. THE FAILURE TO BARGAIN OVER LAYOFFS ALLEGATION AND
THE FAILURE TO PROVIDE REQUESTED INFORMATION ALLEGATION
(PARAGRAPH VIII OF THE COMPLAINT)
The General Counsel alleges that the Respondent unilaterally
laid off Geisler without satisfying its duty to bargain over the
layoff in violation of Section 8(a)(5) and (1) of the Act.25 In
addition, the General Counsel alleges that the Respondent un-
lawfully failed and refused to provide the Respondent with rele-
vant information requested by the Union concerning unit data the
Union believed would be useful for analyzing the layoff situa-
tion.
Having found that the layoff of Geisler violated Section
8(a)(3) and (1) of the Act, and in light of the associated make-
whole remedy, it is unnecessary, and I therefore decline, to reach
the General Counsel’s allegation that the Respondent violated
Section 8(a)(5) by failing to bargain over the layoff. Advanced
Life Systems, 364 NLRB No. 117, slip op. at 3 fn. 8 (2016); Sut-
ter Roseville Medical Center, 348 NLRB 637, 637 fn. 7 (2006).
As to the alleged violation for failing to provide requested in-
formation, the General Counsel’s brief claims that Lessman’s
October 27 email to Hendricks requesting that any layoff be con-
ducted based on seniority constituted a request for information
that the Respondent failed to satisfy. The problem with this al-
legation is that there was no unfulfilled request for information
in this email, or any other time, as far as the record shows, and
as Lessman admitted.
On October 26, Lessman requested and Hendricks sent him
the documents on productivity that he had in his possession.
Hendricks told Lessman he would send the documents he had
received from Jopes. Hendricks sent this material to Lessman
the afternoon of October 26. Lessman reviewed the information
and responded as follows:
Jim, I received the documents you sent, thank you. Since we
can not determine, just by looking at the numbers booked, if
there are issues with work distribution, amount of training each
technician has or lack thereof, what Classification each techni-
cian is (Journeyman, Apprentice, etc .. ), overstaffed service
department and other underlying issues that may be part of the
problem, I would suggest that for the purposes of layoff, that
you use the pure seniority of the technicians by which classifi-
cation the Employer believes the employee is in at this time.
(This too also needs to be negotiated.)
This is not a request for additional information, nor can one
be reasonably implied. Indeed, Lessman admitted at trial, in his
direct examination, that he did not request additional infor-
mation. Lessman testified that he thought the information that
Hendricks sent was insufficient but “I don’t believe I requested
any information because I knew we were setting up for negotia-
tions.”
Upon request, an employer has the legal duty to furnish its
employees' bargaining agent with information relevant and nec-
essary to the performance of its statutory duties. NLRB v. Acme
Industrial. Co., 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co.,
351 U.S. 149, 152 (1956). Requests need not be made with
546 fn. 3 (1998); Tennessee Coach Co., 115 NLRB 677, 679 (1956),
enfd. 237 F.2d 907 (6th Cir. 1956).
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 19
precision, nor in any particular form. But absent a request of
some kind there can be no violation. I dismiss the allegation.
IV. ALLEGATIONS RELATING TO THE EMPLOYER’S ACTIONS
DURING THE FIRST DAYS OF THE STRIKE (PARAGRAPH V(E) AND (D)
OF THE COMPLAINT)
The General Counsel alleges two distinct violations stemming
from the employees’ commencement of a strike on August 1,
2017.
First, the complaint alleges (paragraph V(e)) that the Re-
spondent’s removal of toolboxes from the premises during the
strike was in retaliation for the employees commencing a strike
and to discourage this activity.
Second, the complaint (paragraph V(d)) alleges that the Re-
spondent impliedly threatened employees with job loss for en-
gaging in the strike, through the phrasing of its warning to em-
ployees about the consequences of being replaced during the
strike.
As discussed above, as soon as the strike began, the Respond-
ent issued a letter to strikers, hand-delivered on the picket line
by Renello, “to let you know the consequences of your strike.”
The letter detailed three consequences.
First, that employer premiums toward insurance would end
and employees would receive a COBRA letter requiring them to
pay their full insurance premiums in order to maintain health in-
surance. This is not alleged to be unlawful.
Second, that ads had been placed for replacement technicians,
and that if replaced strikers who sought to return to work would
be placed on a preferential hire list to await an opening.
Third, a directive to “[m]ake arrangements to have your tool
boxes removed from the shop, as we do not want to be responsi-
ble for your tools when you are not working.”
As to the toolboxes, Napleton proved intent on having the
toolboxes removed, even overruling an agreement reached by its
attorney with the Union to give the employees until the end of
the week to have the toolboxes removed. On Thursday August
3, Napleton management even pushed the toolboxes outside the
dealership fence, where they were rained upon. On August 4,
employees arranged with a towing service to remove the
toolboxes.
I agree that the requirement that the toolboxes be removed vi-
olated the Act. The evidence is clear that Napleton’s insistence
on removing the toolboxes was in retaliation for the employees’
exercising their protected right to strike.
Indisputably, the strike prompted the demand and the occasion
for the toolboxes to be removed. At the time, no explanation was
given to the employees or to the Union why the tools needed to
be removed.
At trial, Renello explained the reason for ordering the removal
of the toolboxes in terms that are essentially an admission of dis-
criminatory motive.
Napleton had strikes that commenced at six other dealerships
the same day that the Napleton Libertyville strike began. How-
ever, Napleton did not seek the removal of striking employees’
toolboxes at its other stores. Why? At trial Renello volunteered
that the reason for demanding removal of the toolboxes at Naple-
ton in Libertyville, but not at its other stores, was because at the
other stores Napleton perceived that the employees did not want
to strike but were forced into it through their employment at a
NCDC-wide strike covering 130 dealerships. On the other hand,
the Napleton employees in Libertyville comprised a standalone
unit and, to the surprise and chagrin of Napleton, independently
chose to strike at the last minute. As Renello explained at trial,
in response to a question posed to him as to whether Napleton
removed strikers’ toolboxes from its other stores:
No, no. Most of our—the other techni-
cians and the other stores wanted to
work through the strike. They just
weren’t allowed to.”
This is an admission that it was the Napleton technicians’
choice to exercise their right to strike—a choice freely made and
thus, in Napleton’s view, deserving of punishment—that
prompted the demand to remove the toolboxes at Libertyville.
Renello contrasted this choice to the perceived reluctant obei-
sance of Napleton’s NCDC-member units at its six other stores,
where Napleton perceived that employees wanted to but were not
allowed to work during the strike. Their tools were not removed.
This is an admission that the Napleton employees were retaliated
against because of their decision to strike.
This admission is not accompanied, much less countered, by
any credible legitimate justification for the demand and removal
of the toolboxes. I recognize that Jopes claimed at trial that
Napleton required striking employees to remove the toolboxes
because our insurance policy would not cover . . . damage to
those boxes as they [the employees] were not working employ-
ees at that point. So there was—our insurance company in-
formed us that there would be a lack of coverage should there
be damage.
However, I do not credit this claim. It is entirely unbelievable.
The more Jopes explained it the more it seemed clear that the
whole rationale was just another a pretext for discrimination.
First of all, it conflicts with Renello’s admission as to the rea-
son for the demand that the toolboxes be removed.
Second, Jopes’ claim that Napleton’s insurance company told
him that this is how the insurance policy works is entirely uncor-
roborated, undocumented, and implausible.
It is implausible in large part, because, third, the insurance
policy was introduced into evidence and it says no such thing.
Jopes pointed to the portion of the endorsement page that extends
coverage,
to loss of or damage to tools and equipment owned by your
employees and used by them in your business.
Jopes contended that as strikers, the employees were not using
the tools in Napleton’s business, hence, their tools were not cov-
ered by the insurance policy. This makes no more sense than
would a claim that the tools are not covered by insurance and
must be removed during a weekend or even overnight when the
tools are not being used in the business, or when an employee is
off on vacation, or on leave, or for any other reason that the em-
ployee, like a striker, ceases working but remains an employee.
Fourth, Jopes’ claimed that the tools of employees striking at
its other six stores—the employees who Renello said wanted to
work through the NCDC strike but were not allowed to—
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
remained insured because those employees were “still under dif-
ferent protections due to their collective-bargaining agreement.
It was a different situation there.” This is piffle.
Fifth, and finally, Jopes insistence that, unlike strikers, the
continued insurability for the tools of an employee out on disa-
bility was not an issue only serves to make clear the discrimina-
tory animus motivating the Respondent. According to Jopes, the
tools of an employee out on disability—for instance, Russell was
out for over eight months and no one thought his tools needed to
be removed from the dealership, until he was fired—does not
present an insurance issue because, according to Jopes, “They’re
covered under FMLA or disability or worker’s comp. That’s a
different situation.”
It is a different situation. This strike involves an absence from
work due to the exercise of Section 7 rights. Disability does not.
The difference is that Jopes is committed to the contention that
employees exercising their section 7 rights—unlike other em-
ployees not at work—must have their tools removed. At bottom,
Jopes is simply admitting that discriminatory animus motivated
the employer’s insistence that the strikers’ toolboxes be removed
from the premises.
I find that Napleton’s insistence on the removal of the striking
employees’ toolboxes from the premises was retaliation for their
engaging in protected activity, and intended to discourage such
activity, and in violation of Section 8(a)(1) of the Act, as alleged.
In truth, by insisting on the removal of the toolboxes, Naple-
ton seemed to be going to lengths to demonstrate to the employ-
ees that by striking their employment status had been perma-
nently altered—this is why Jopes admitted he no longer consid-
ered the strikers, once replaced, to still be employees (Tr. 369).
That is why the Respondent, on brief (R. Br. at 13), compares
permitting the strikers’ tools to remain on the employer’s prop-
erty to permitting “an abandoned car to remain on its property.”
This is also relevant in considering the General Counsel’s con-
tention that Napleton’s replacement threat constituted an unlaw-
ful implied threat of job loss for engaging in a strike, in violation
of Section 8(a)(1).
In support of this allegation, the General Counsel points out
that the same August 1 letter that unlawfully directed striking
employees to remove their toolboxes as a consequence of strik-
ing, also informed them of the following consequence of strik-
ing:

26 NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378-379 (1967);
Tri-State Wholesale Building Supplies, Inc., 362 NLRB No. 85, slip op.
at 5 (2015) (“The Board has long held that in the absence of a legitimate
and substantial business justification, economic strikers are entitled to
immediate reinstatement to their prestrike jobs”), enfd. 657 Fed. Appx.
421 (6th Cir. 2016). One recognized legitimate and substantial business
justification for refusing to reinstate economic strikers is that those jobs
claimed by the strikers are occupied by workers hired as permanent re-
placements, NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 379 (1967)”);
Hansen Bros. Enterprises, 279 NLRB 741, 741 (1986) (“It is well estab-
lished that economic strikers are entitled to immediate reinstatement
upon an unconditional offer to return to work, provided their positions
have not been filled by permanent replacements”), enfd. without op. 812
F.2d 1443 (D.C. Cir. 1987).
27 Associated Grocers, 253 NLRB 31 (1980) (permanent replacement
“is an affirmative defense and Respondent has the burden of proof”),
enfd., 672 F.2d 897 (D.C. Cir. 1981); Augusta Bakery Corp., 298 NLRB
We have placed ads for replacement technicians. If and when
you are replaced, you will be notified. After you are replaced,
should you make an unconditional offer to return to work you
will be placed on a preferential hire list should an opening oc-
cur.
The Board has long held that “an employer may address the
subject of striker replacement without fully detailing the protec-
tions numerated in Laidlaw, so long as it does not threaten that,
as a result of a strike, employees will be deprived of their rights
in a manner inconsistent with those detailed in Laidlaw.” Eagle
Comtronics, 263 NLRB 515, 516 (1982), referencing, Laidlaw
Corp., 171 NLRB 1366, 1369–1370 (1968), enfd. 414 F.2d 99
(7th Cir. 1969), cert. denied 397 U.S. 920 (1970).
Here, however, the Respondent’s account of striker rights is
inconsistent with the presumptive right of reinstatement ac-
corded to strikers after a strike. Under settled precedent, replace-
ments are presumed to be nonpermanent and temporary.
“Because employees have the right to strike in support of eco-
nomic demands, an employer violates Section 8(a)(3) by failing
to immediately reinstate such employees upon their uncondi-
tional offer to return to work.” American Baptist Homes of the
West, 364 NLRB No. 13, slip op. at 3 (2016). “In certain situa-
tions, however, an employer may establish a ‘legitimate and sub-
stantial justification’ for failing to reinstate striking employees
by showing that the strikers' positions have been filled by per-
manent replacements.” Id. An employer that fails to prove that
his failure to reinstate strikers was due to a legitimate and sub-
stantial business justification “is guilty of an unfair labor prac-
tice.”26 Proof that employees have been permanently replaced is
an affirmative defense to a violation of the Act for failure to re-
instate.27
Most significantly, absent an employer's proof that replace-
ments are permanent, the Board has held that the presumption is
that the replacements are temporary.28
Here, Napleton’s statement to employees does not mention—
it says nothing at all about—permanent replacement. It does not
mention permanent replacement as a prerequisite to lawfully
failing to reinstate strikers. It does not say anything about the
Respondent’s burden to prove replacements are permanent in or-
der to avoid a finding of illegality for refusing to reinstate strikers
58, 65 (1990) (“it is Respondent’s burden to prove its affirmative de-
fense, raised in its answer, that the alleged discriminatees were perma-
nently replaced”), enfd. 957 F.2d 1467 (7th Circuit 1992); Aqua-Chem,
288 NLRB 1108, 1110 fn. 6 (1988) (“the initial burden is on the em-
ployer to show that the replacements were in fact permanent”), enfd. 910
F.2d 1487 (7th Cir. 1990).
28 Hansen Bros. Enterprises, 279 NLRB at 741; Towne Ford Inc., 327
NLRB 193, 204 (1998) (“Respondent offered little evidence to overcome
the presumption that the replacements were temporary”); Montauk Bus
Co., 324 NLRB 1128, 1128 fn.1, 1138 (1997) (presuming temporary sta-
tus where employer's witnesses' testimony was conclusory and lacked
weight, and was unsupported by replacement testimony: “Where re-
placements are hired for striking employees, the Board has held that the
presumption is that replacements are temporary”); O.E. Butterfield, Inc.,
319 NLRB 1004 (1995) (holding that in all cases, both representation
and unfair labor practice cases, presumption is that replacements for
strikers are temporary, overruling cases to contrary).
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 21
at strike’s end.29
As referenced, supra, the long-settled Board rule is that there
is a presumption that replacements are temporary, unless and un-
til proven otherwise. Here, there is not even a claim that any
replacements will be permanent replacements. Thus, the Re-
spondent’s statement misstates the law and is fundamentally in-
consistent with striker’s rights. To threaten striking employees
that if replaced—a term that, presumptively, means nonperma-
nently replaced—they will not be reinstated at strike’s end but
put on a preferential hire list, is inconsistent with strikers’ rein-
statement rights. Napleton’s statement leaves out the critical and
necessary explanation that its intent to place returning replaced
strikers on a recall list can only occur in the context of permanent
replacements, a status that the Respondent must prove. Without
more, the Respondent’s threat violates the Act.30
Alternatively, even if the statement of the Respondent is
viewed as ambiguous—because its reference to “replacement”
could mean permanent or nonpermanent replacement—the state-
ment is still unlawful under settled precedent.
The Board has held that where a statement is otherwise unac-
companied by threats, the Board’s policy is to “resolv[e] in the
employer’s favor any ambiguity occasioned by a failure to artic-
ulate employees’ continued employment rights when informing
them about permanent replacement in the context of an economic
strike.” In re Unifirst Corp., 335 NLRB 706, 707 (2001).
By the same token: “Where, however, ambiguous comments
about striker replacement are part and parcel of a threat of retal-
iation for choosing union representation . . . any ambiguity
should be resolved against the employer.” Id.
In this case, the Respondent’s ambiguous statement to striking
employees about their status if replaced was part and parcel of
the letter unlawfully directing them to remove their toolboxes
from the shop. Indeed, these statements follow one another and
constitute two of the three “consequences” of striking to which
the August 1 letter is directed. Given this, the ambiguity in the
Respondent’s warning about the consequences of being replaced
must be resolved against the employer and treated as a threat that
replaced strikers will not be reinstated at strike’s end—regard-
less of whether the replacements are proven to be permanent.
That is an unlawful threat.31
To this point, it should not be forgotten that the insistence on
removal of the toolboxes—and of course, these toolboxes are
large heavy metal cabinets weighing thousands of pounds and

29 To meet the burden of proving that replacements are permanent, an
employer must show a mutual understanding between itself and the re-
placements that they are permanent, not simply an intent to hire perma-
nent replacements. Hansen Bros. Enterprises, 279 NLRB at 741–742
(1986); O. E. Butterfield, Inc., 319 NLRB 1004 (1995); Consolidated
Delivery & Logistics, 337 NLRB 524, 526 (2002), enfd. 63 Fed. Appx.
520 (D.C. Cir. 2003); Dino & Sons Realty Corp., 330 NLRB 680 (2000),
enfd. 37 Fed. Appx. 566 (2d Cir. 2002).
30 The instant case is distinguishable from Rivers Bend Health and
Rehabilitation Service, 350 NLRB 184 (2007). In that case, the Board
dismissed allegations against an employer that told employees that “In a
strike the Company would be forced to hire replacements to be sure we
can take care of the residents. This puts each striker’s continued job sta-
tus in jeopardy.” The Board found that this statement was consistent
with Laidlaw. But unlike the instant case, the statement in Rivers Bend
warned employees only of the jeopardy—i.e., the risk or danger—to job
requiring a tow to move—carried with it a suggestion of job loss
as a result of striking. Toolboxes of this size and value are
moved when someone quits, retires, or is terminated. They are
not shuffled around because someone is temporarily absent from
work. Job loss is the message that Napleton sent with its di-
rective that these strikers must remove their toolboxes from the
premises as a “consequence” of striking. The accompanying
threat to not reinstate replaced strikers at strike’s end must be
read in that context, for it is the context in which the threat was
made.
For all of the above reasons I find that the Respondent’s notice
to employees that if replaced they would be placed on a prefer-
ential hire list amounts to an announced intention to unlawfully
refuse to reinstate strikers even if they are nonpermanently re-
placed. This is an unlawful course of action and impliedly threat-
ens job loss in violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent Napleton 1050, Inc. d/b/a Napleton Cadil-
lac of Libertyville is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. On or about October 27, 2016, the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging Charging Party
William Glen Russell II, in retaliation for the employees of the
Respondent selecting the Union as their collective-bargaining
representative.
3. On or about October 27, 2016, the Respondent violated
Section 8(a)(3) and (1) by laying off employee David Geisler in
retaliation for the employees of the Respondent selecting the Un-
ion as their collective-bargaining representative.
4. On or about October 27, 2016, the Respondent violated
Section 8(a)(1) of the Act by telling an employee that his layoff
was the result of the employees of the Respondent voting in a
representation election to select the Union as their collective-bar-
gaining representative.
5. On or about November 4, 2016, the Respondent violated
Section 8(a)(1) of the Act by creating the impression that it had
engaged in surveillance of its employees’ union activity.
6. On or about August 1, 2017, and thereafter, the Respondent
violated Section 8(a)(1) of the Act by ordering the removal of
striking employees’ toolboxes from the Respondent’s facility in
retaliation for the employees’ engaging in a strike and to discour-
age the employees from engaging in this and other protected and
status, a correct statement if the employer proved that the replacements
it hired were permanent. By contrast, Napleton did not warn that there
was a risk or possibility of being placed on a preferential hire list at the
strike’s end, if replaced. It stated that if replaced “you will be placed” on
a preferential hire list (emphasis added). That is an unlawful threat to
make to strikers with regard to nonpermanent replacements, who, as a
matter of law, Napleton presumptively indicated it was hiring, as Naple-
ton did not even claim in its August 1 letter detailing consequences of
striking that it was seeking permanent replacements.
31 This also distinguishes the instant case from Rivers Bend, supra. In
dismissing the allegations there, the Board relied upon the rule that an
ambiguity in the employer’s statement must be construed in favor of the
employer, because the challenged statement was not accompanied by any
other threats. 350 NLRB at 185. In this case, given the accompanying
threat, that rule of construction is reversed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
concerted activities.
7. On or about August 1, 2017, the Respondent violated Sec-
tion 8(a)(1) of the Act by impliedly threatening employees that
they would suffer job loss for engaging in a strike.
8. The unfair labor practices committed by the Respondent
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent, having unlawfully discharged William Glen
Russell II, and having unlawfully laid off David Geisler, shall
reinstate Russell and Geisler to their former jobs or, if their po-
sitions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
lege previously enjoyed. The Respondent shall make Russell
and Geisler whole for any loss of earnings and other benefits suf-
fered as a result of the Respondent’s unlawful discrimination
against them. The make whole remedy shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Med-
ical Center, 356 NLRB 6 (2010). In accordance with King Soop-
ers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859
F.3d 23 (D.C. Cir. 2017), the Respondent shall compensate Rus-
sell and Geisler for search-for-work and interim employment ex-
penses regardless of whether those expenses exceed their interim
earnings. Search-for-work and interim employment expenses
shall be calculated separately from taxable net backpay, with in-
terest at the rate prescribed in New Horizons, supra, compounded
daily as prescribed in Kentucky River Medical Center, supra. In
accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas,
361 NLRB 101 (2014), the Respondent shall compensate Russell
and Geisler for the adverse tax consequences, if any, of receiving
lump sum backpay awards, and, in accordance with AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016), the Respondent
shall, within 21 days of the date the amount of backpay is fixed
either by agreement or Board order, file with the Regional Di-
rector for Region 13 a report allocating backpay to the appropri-
ate calendar year for Russell and Geisler. The Regional Director
will then assume responsibility for transmission of the report to
the Social Security Administration at the appropriate time and in
the appropriate manner.
The Respondent shall also be required to remove from its files
any references to the unlawful discharge of Russell and layoff of
Geisler and to notify them in writing that this has been done and
that the discharge and layoff will not be used against them in any
way.

32 Roofers Local 30 (Associated Builders), 227 NLRB 1444, 1444
(1977); Iron Workers Local 783 (BE&K Construction), 316 NLRB 1306,
1310 (1995); District 1199, National Union of Hospital and Health Care
Workers (Frances Schervier Home and Hospital), 245 NLRB 800, 806,
807 (1979) (“I also reject the Employer's application for property dam-
ages, for which the Employer has offered no legal authority. If I were to
grant its request, that would open the door to requests of employees to
The Respondent shall further be ordered to refrain from in any
like or related manner abridging any of the rights guaranteed to
employees by Section 7 of the Act.
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted in the Respondent’s facility or wherever the notices to
employees are regularly posted for 60 days without anything
covering it up or defacing its contents. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since Octo-
ber 27, 2016. When the notice is issued to the Respondent, it
shall sign it or otherwise notify Region 13 of the Board what
action it will take with respect to this decision.
The General Counsel also seeks a remedy requiring the Re-
spondent to reimburse employees whose tools were damaged
when the Respondent pushed the tools outside and the toolboxes
were rained upon. At the hearing, there was discussion about
whether the damage was to be proved at this hearing or in a sub-
sequent compliance hearing. There was no discussion of
whether this is an appropriate remedy in an unfair labor practice
hearing. On brief, the General Counsel does not cite a single
case or precedent in support of the proposition that damage to
personal property should be reimbursed through a Board unfair
labor practice proceeding. The Respondent, for its part, suggests
that the matter is one to be addressed through state tort law and
in state courts. Certainly, the Board has long held that employers
legally damaged by the tortious conduct of unions “might be bet-
ter served by pursuing those private remedies traditionally used
for the recovery of such damages.”32 In this case, the General
Counsel is asking for me to recommend that the Board transform
its procedures into a forum for resolution of claims involving
damage to personal property that occurred during the course of
an unfair labor practice. This is a matter for the Board to con-
sider in the first instance.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended33
ORDER
The Respondent, Napleton 1050, Inc. d/b/a Napleton Cadillac
of Libertyville, Libertyville, Illinois, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging or laying off or otherwise discriminating
against employees in retaliation for employees supporting Local
seek monetary relief for personal injuries in violence cases. The Board is
simply not equipped to handle such claims . . .”).
33 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF LIBERTYVILLE 23
701 of the International Association of Machinists & Aerospace
Workers, AFL-CIO, or any other labor organization.
(b) Creating the impression that employees’ union or other
protected activities are under surveillance.
(c) Telling any employee that a layoff is the result of how
employees voted in a representation election.
(d) Ordering the removal of and/or removing employee
toolboxes or other employee property from the Respondent’s
facility in retaliation for the employees engaging in a strike
or other protected and concerted activities.
(e) Impliedly threatening employees that they would suffer
job loss for engaging in a strike.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of this Order, offer William
Glen Russell II, and David Geisler, full reinstatement to their
former jobs, or if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make William Glen Russell II and David Geisler whole
for any loss of earnings and other benefits suffered as a result of
the discrimination against them in the manner set forth in the
remedy section of this decision.
(c) Compensate William Glen Russell, II, and David Geisler
for the adverse tax consequences, if any, of receiving lump-sum
backpay awards, and file with the Regional Director for Region
13 within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar year for each employee.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of William Glen
Russell, II, and the unlawful layoff of David Geisler, and within
3 days thereafter, notify each of them in writing that this has been
done and that the discharge and layoff will not be used against
them in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(f ) Within 14 days after service by the Region, post at its Lib-
ertyville, Illinois facility copies of the attached notice marked
“Appendix.” 34 Copies of the notice, on forms provided by the
Regional Director for Region 13, after being signed by the Re-
spondent's authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper notices,

34 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the National
Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
notices shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since October 27, 2016.
(g) Within 21 days after service by the Region, file with the
Regional Director for Region 13 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. April 4, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge, lay off, or otherwise discriminate
against any of you in retaliation for employees’ support of Local
701 of the International Association of Machinists & Aerospace
Workers, AFL-CIO, or any other labor organization or any other
labor organization.
WE WILL NOT create the impression that we are engaged in sur-
veillance of your union or other protected concerted activities.
WE WILL NOT tell you that we are conducting a layoff because
of how employees voted in a union representation election.
WE WILL NOT order you to remove your toolboxes or other
personal property from our facility in retaliation for you engag-
ing in a strike or other protected and concerted activities.
WE WILL NOT impliedly threaten you with job loss for engag-
ing in a strike.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed them
by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with,
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
restrain, or coerce you in the exercise of the rights listed above.
WE WILL, within 14 days from the date of the Board’s Order,
offer William Glen Russell II, and David Geisler, full reinstate-
ment to their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make William Glen Russell II, and David Geisler
whole for any loss of earnings and other benefits resulting from
their discharge and layoff, less any net interim earnings, plus in-
terest.
WE WILL compensate William Glen Russell II, and David
Geisler for the adverse tax consequences, if any, of receiving
lump-sum backpay awards and WE WILL file with the Regional
Director for Region 13 within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar year(s)
for each employee.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge of
William Glen Russell II and unlawful layoff of David Geisler,
and WE WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the discharge and layoff
will not be used against them in any way.
NAPLETON 1050, INC. D/B/A NAPLETON CADILLAC OF
LIBERTYVILLE
Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/13-CA-187272 by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.