Newlonbro, LLC (Connecticut's Own)

National Labor Relations Board - Board Decisions

Dec 29, 2000

332 N.L.R.B. 1559 (N.L.R.B. 2000)

NEWLONBRO, LLC (CONNECTICUT’S OWN) 1559
Newlonbro, LLC (Connecticut’s Own) Milford and
Local 1040, International Brotherhood of Team-
sters, AFL–CIO. Case 34–CA–8913
December 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On May 4, 2000, Administrative Law Judge Michael
A. Marcionese issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions, and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Newlonbro, LLC (Connecti-
cut’s Own) Milford, Milford, Connecticut, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.

Darryl Hale, Esq., for the General Counsel.
Thomas R. Gibbons, Esq. (Jackson, Lewis, Schnitzler Krup-
man), for the Respondent.
Dennis Novak, Secretary/Treasurer, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge.
This case was tried in Hartford, Connecticut, on January 18 and
19, 2000. Local 1040, International Brotherhood of Teamsters,
AFL–CIO (the Union) filed the charge on June 24 and amended
it on September 28, 1999.1 On September 29, the complaint
issued alleging that the Respondent, Newlonbro, LLC (Con-
necticut’s Own) Milford, violated Section 8(a)(1) and (3) of the
Act by terminating its employees Michael Frank and Howard
Sachs on June 11 and 18, respectively. The complaint further
alleges that the Respondent independently violated Section
8(a)(1) of the Act on June 12, when its supervisor/agent, Greg-
ory D’Agostino, allegedly interrogated employees, created the
impression that their union activities were under surveillance,
and threatened employees with more onerous working condi-
tions if they selected the Union as their bargaining representa-
tive. The Respondent filed its answer to the complaint on Octo-
ber 13 denying the unfair labor practice allegations.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard 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.
Member Hurtgen does not agree with the judge’s finding that the
General Counsel has made out a prima facie case that employee Mi-
chael Frank’s union activities were a motivating factor in the Respon-
dent’s decision to terminate him.
1 All dates are in 1999 unless otherwise indicated.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability corporation, is engaged in
the retail sale and service of automobiles at its facility in Mil-
ford, Connecticut, where it annually derives gross revenues in
excess of $500,000. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
The Respondent acquired the Milford dealership from its
bankrupt former owner, an entity known as Volvo City West, in
April 1997. Both Frank and Sachs were employed by the prior
owner and were retained by the Respondent. At the time it ac-
quired the business, the dealership sold new Mazdas, Volvos,
and Oldsmobiles, as well as used, or “preowned,” vehicles. In
1998, the Respondent stopped selling Oldsmobiles. Michael
Brockman is the Respondent’s managing member in charge of
the day-to-day operations of the business. He has an office at
the facility and is there most days. D’Agostino is the Respon-
dent’s Mazda and preowned sales manager who directly super-
vised Frank and Sachs. The Respondent admits that Brockman
and D’Agostino are its supervisors and agents within the mean-
ing of the Act.
Frank testified that Volvo City West hired him in April 1987
to sell used cars. Throughout his employment with Volvo City
West, he sold only used cars, working out of a separate building
from the main showroom. Even after the Respondent acquired
the dealership and hired Frank, he continued selling only used
cars out of the separate used-car office. For a time, he contin-
ued to be supervised separately from the new-car salesmen by
D’Agostino, who was hired as the used-car sales manager in
April 1997. In about May 1998, D’Agostino became the sales
manager for both new Mazdas and preowned vehicles. From
that point on, Frank was under the same supervision as the
Respondent’s Mazda new-car salesmen.2
According to Frank, he made it clear to the Respondent’s
management, at a sales meeting held soon after the Respondent
acquired the business, that he was hired to sell used cars, that
he only sold used cars and that he didn’t like selling new cars.
Although his memory of this meeting was vague, he did recall
that someone from the Respondent’s management responded,
in effect, that they would take up that discussion at another
2 The Respondent’s Volvo salesmen are supervised separately by the
Volvo sales manager.
332 NLRB No. 146
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1560
time. None of the Respondent’s witnesses disputed this testi-
mony. Frank also testified that, in about December 1997, after
it was announced that the Respondent planned to merge the
Mazda and the preowned sales departments, D’Agostino told
Frank that he would not have to sell new cars after the merger.
D’Agostino did not specifically contradict this testimony. In
fact, as will be shown, he referred to such a discussion in a
warning notice he gave to Frank on May 18. Nevertheless,
despite this verbal “commitment,” there is no dispute that
Brockman and D’Agostino began asking Frank, in early 1999,
to sell new cars. Frank testified that Brockman made this re-
quest several times and that each time he refused, telling
Brockman that he preferred not to sell new cars. According to
Frank, Brockman made these requests in a smiling, jovial man-
ner. D’Agostino also asked Frank, in early 1999, to take “over-
flow” of new-car sales. Frank testified that he understood this
to mean that, if all the new car salesmen were busy, he would
greet new-car customers, show them the vehicles, answer their
questions and generally keep the customer occupied until a
new-car salesman was free, at which point he would turn the
customer over to the new-car salesman to complete the sale.
According to Frank, he agreed to do this voluntarily, without
sharing any of the commission generated from any sales he
initiated.
There is no dispute that, on May 18, D’Agostino gave Frank
a written warning for “lack of new-car sales (Mazda).” On the
warning report, D’Agostino wrote the following

CT’s Own Mazda-Preowned Sales Dept. consists of five sales
personnal [sic]. At first Mick Frank was selling preowned ve-
hicles only––Micky was told by Manager Greg D’Agostino
that he was to take overflow of Mazda sales dept. He was told
to take Mazda Sales tests and product test and never did.
Since we have built a new showroom and is required to sell
new Mazdas and pre-owned vehicles. Micky was told that he
would be able to sell only pre-owned vehicles a 1-1/2 ago
[sic] but since told to take overflow for Mazda that he is now
required to sell both new Mazdas and pre-owned vehicles––
everyone from Mazda––Pre-owned sales dept.––remaining
four sales people sell both vehicle lines of cars––Mick Frank
was hired as a sales consultant and refuses to sell new vehi-
cles. Everyone in this dept. sells everything. Mick still refuses
to sell new vehicles. Since this decision has been decided by
employee taken out of pre-owned vehicle and put into service
loaner [sic].

Before receiving this warning, Frank had been provided with
one of the Respondent’s newer preowned vehicles to drive as a
demo. With the warning, this newer vehicle was replaced with
a 1987 Oldsmobile that had 143,000 miles.
Frank testified that when he was given this warning, he
asked D’Agostino if he could have some time to read the warn-
ing and write a response. D’Agostino agreed. Frank returned
the warning on May 24 with the following response written in
the “employee statement” section:

1-1/2 yrs. ago I was told I would only have to sell pre-
owned cars when the pre-owned and Mazda dept. merged
together. The demand at this time that I sell new cars I
consider a breach of contract. Also taking away my newer
demo’s and giving me a 1987 Oldsmobile w/143,000
miles which I consider harassment by the company [sic].

According to Frank, he continued to take “overflow,” as he
understood that term, after receiving this warning. He acknowl-
edged, however, that he continued selling only used cars.
Frank testified that he did not contact the Union about orga-
nizing the Respondent’s salesmen until June 3. He spoke to the
Union’s secretary-treasurer, Dennis Novak, and set up a meet-
ing at his house for June 6. According to Frank, approximately
four employees were present, including him. Novak talked to
the employees about the Union and cards were signed. Frank’s
card, which is in evidence, is dated June 4, indicating that he
had already signed it before the meeting. Frank held another
meeting at his house on Thursday, June 10, also attended by
about four employees. The Union’s International representa-
tive, Michael Markowitz, attended this meeting with Novak.
According to Frank, in between the meetings, he talked to the
other salesmen about joining the Union and solicited them to
sign cards. Frank’s testimony regarding his union activity was
corroborated by Novak and by fellow salesmen Sachs and Vin-
cent Pavone, each of who attended at least one meeting.3
Frank and Novak testified that, at the second meeting on
June 10, it was decided that Frank would be the employee or-
ganizer and that the Union would fax a letter to the Respondent
informing it of this decision. Such a letter was prepared the
next morning, June 11, by the Union’s office manager/secre-
tary, Avis Kapitancek, who testified in these proceedings. Ac-
cording to Kapitancek, she typed the letter, affixed Novak’s
signature stamp and, at approximately 11:30 a.m., faxed it to
the number given to her by Novak. Novak testified that he ob-
tained the Respondent’s fax number from Frank. After having
her memory refreshed with the affidavit she gave on August 6.
Kapitancek recalled that the fax number she used is the same as
the Respondent’s fax number. Kapitancek acknowledged that
she had no written confirmation that the fax was received. She
testified that the Union’s fax machine does not generate such a
confirmation, nor is it capable of printing any type of report
that would show that the fax was sent. She was only able to
verify that the fax was received by the Respondent by reading a
digital readout on the fax machine at the time the fax was sent.
The letter was also sent certified mail and the Union did receive
the return receipt indicating that the Respondent got the letter
on June 14. Despite the absence of any written proof that the
fax was received, Brockman acknowledged in his direct testi-
mony that he was aware, by early afternoon on June 11, that
such a fax had been received from the Union. Brockman testi-
fied that he did not see the letter himself until around 5 or 6
p.m.
Frank testified that he went to the Union’s office at lunch-
time on June 11 to get a copy of the letter that was faxed to the
Respondent. He then returned to the dealership. Shortly after 3
p.m., D’Agostino came to his desk and told Frank that Brock-
man wanted to see him. Before accompanying D’Agostino to

3 Sachs testified that he attended both meetings. Novak testified that
Sachs attended one meeting. Frank did not identify which employees
were at either meeting.
NEWLONBONBRO, LLC (CONNECTICUT’S OWN) 1561
D’Agostino to Brockman’s office, Frank called Novak and told
him that he was being summoned to Brockman’s office. Ac-
cording to Frank, Novak told him to call if he needed him and
that Novak would be at the dealership in 10 minutes.4 Frank
then accompanied D’Agostino to Brockman’s office. Frank
testified that the meeting was very stressful and he did not have
a clear recollection of everything that was said. However he did
recall Brockman opening the discussion with something to the
effect that Frank had been asked to sell new cars and had con-
tinually refused. He recalled that he probably replied to this in
the same manner he had previously, i.e., that he believed it was
a breach of contract for the Respondent to ask him to sell new
cars. At some point in the meeting he was handed another
“Employee Warning Report” which he was asked to sign.
Frank asked if he could take the warning with him, read it, and
return it at a later time. He was told by either Brockman or
D’Agostino that he had to sign it immediately or he would be
terminated. An envelope was placed on the desk in front of him
and Frank was told to open the envelope. Inside was a pink slip
indicating that Frank was being terminated. The box for “will-
ful misconduct” was checked as the reason for termination.
Frank told Brockman and D’Agostino that he would not sign
the warning and got up to leave. As he was leaving, he asked if
he could write a response. He was told that he could. Frank
then wrote his response in the employee statement section of
the warning notice and was given a copy. D’Agostino then
escorted Frank back to his desk. According to Frank, the meet-
ing lasted about 15 minutes.
The June 11 employee warning notice was filled out and
signed by D’Agostino. Under the “Company Statement,”
D’Agostino wrote:

Mick Frank refuses to attend new-car Mazda meetings
in which he was asked on June 8, 1999, to attend. These
classes are required by Mazda and Mazda preowned certi-
fied, to sell all these vehicles.
After several verbal warnings Micky has refused and
failed to comply with company procedures to sell new ve-
hicles. Everyone at CT’s Own is hired to sell all types of
vehicles which are provided by the automobile dealership.
Micky refuses to cooperate and carry out the mandates
of the company without any reason or explanation. These
mandates apply to all personal in this position [sic].

Frank wrote the following employee statement:

Employee read statement and said he would sign––return it
after he had time to look over and reply.

Frank testified that D’Agostino told him that he would have
to leave the dealership immediately. While D’Agostino went to
get boxes for Frank to pack his belongings, Frank went to the
Xerox machine and made copies of the union’s letter to the

4 Novak did not corroborate this testimony. Novak testified instead
that he called the Respondent’s dealership sometime during the after-
noon of June 11 and asked to speak to Sciarroni, the Respondent’s
general manager, who was not available. According to Novak, he left
his name and identified himself as a union representative, but he did not
mention Frank, or the letter he had faxed earlier that day.
Respondent identifying him as the Union’s “inplant organizer.”
After he was done, he left the used-car office to go to
Brockman’s office in the main building in order to give
Brockman a copy of the letter. On his way there, according to
Frank, he encountered another salesman, Gerry LaFrenyear.5
As he was telling LaFrenyear that he had just been terminated,
D’Agostino came up to them, grabbed Frank by the arm, and
pushed him back toward the used-car office, telling Frank that
Brockman wanted him off the property immediately. Frank
testified further that D’Agostino noticed the copies of the letter
he was carrying and said that he had already talked to an attor-
ney friend and that “it was already taken care of.” Frank then
packed up his belongings and was driven home by
D’Agostino.6 Frank testified that, as they were leaving,
D’Agostino told him “soliciting is illegal.” Frank testified fur-
ther that, as D’Agostino was driving him home, He told
D’Agostino to tell Brockman that “he was in deep s—t.”
Frank acknowledged that, prior to his termination,
D’Agostino had left faxes on Frank’s desk regarding Mazda
sales training classes that were offered at company expense. He
admitted that he never signed up for any of these classes. He
specifically recalled such a fax regarding a class on June 8 be-
ing left on his desk. He denied that D’Agostino, or anyone else
in the Respondent’s management, specifically asked him to
attend that class. Frank also conceded on cross-examination
that he was aware at least since the beginning of the year that
the Respondent wanted him to sell new cars and that he was not
interested in selling new cars.
It is undisputed that the Respondent had planned on merging
the Mazda new and preowned sales departments into one show-
room since December 1997. In 1999, the showroom was reno-
vated and the new-car salespeople were moved into the used-
car sales office where Frank worked during the construction.
The evidence reveals that the new showroom was ready by
June 11 and that all of the Respondent’s Mazda new and pre-
owned sales staff was scheduled to move into the new show-
room on Saturday, June 12. The small building housing the
used-car office had been set for demolition as part of the Re-
spondent’s planned renovations. The record reveals that the
demolition of that building commenced the week following
Frank’s discharge.
Brockman testified that he made the decision to terminate
Frank for the sole reason that Frank had refused to sell new
cars. Although Brockman acknowledged being aware of the fax
from the Union identifying Frank as its “inplant organizer”
before he carried out the decision, he denied that the fax or
Frank’s union activities or sympathies played any part in his
decision. According to Brockman, his decision had been made
before he learned of the fax. Brockman and D’Agostino testi-
fied, as did Frank, that they had repeatedly asked Frank if he
was going to sell new cars and that he consistently refused.
5 Pavone testified that he also encountered Frank on the day he was
terminated. Frank told Pavone he had just been fired. Frank then said to
Pavone, “if you had attended the meeting last night, maybe this would-
n’t have happened.”
6 Because Frank had been using a car provided by the Respondent,
he did not have transportation home after he was terminated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1562
Brockman testified that, as part of the merger of the Mazda
new- and preowned sales departments, the Respondent planned
to have all––salesmen become certified to sell all of its prod-
ucts. To obtain such certification, it was necessary for the
salesmen to attend classes and seminars sponsored by the man-
ufacturers. The Respondent paid all expenses associated with
such training. It is undisputed that Frank was the only one of
the Respondent’s salesmen who had not taken any steps to
become certified. In fact, he was the only used-car salesman
who refused to sell new cars.7 The timing of the termination,
according to Brockman, was related to the opening of the new
showroom that Saturday, June 12, and not to the Union’s nas-
cent organizing campaign.
Brockman testified that, at the beginning of the week, he
asked D’Agostino if Frank had acquiesced and decided to take
the course to become certified to sell new cars. When D’Agos-
tino told him that he had not, Brockman told D’Agostino that
the time had come, before moving into the new showroom, to
make a decision. On Friday morning, Brockman again asked if
there was anything new with Frank. D’Agostino told him noth-
ing had changed. In fact, another certification class had come
and gone that very week without Frank signing up to attend.
Brockman told D’Agostino to bring Frank to his office so
Brockman could give him one last chance to conform to the
Respondent’s plans. Although Brockman testified that he asked
D’Agostino in the morning, before lunch, to bring Frank up to–
his office, he acknowledged that Frank and D’Agostino did not
come up until after 3 p.m. He did not know why it took so long,
but speculated that Frank may have been off the site for part of
the time.
Brockman testified that he started the meeting by telling
Frank that he thought he was a good salesman and that he
wanted Frank to be part of the organization, but that Frank was
the only salesperson who did not sell new and used cars.
Brockman asked him again if he would sell new cars and again,
Frank refused, citing a conversation from 1-1/2 years ago in
which he was told he would not have to sell new cars.
Brockman told Frank that he had never made that promise, but
instead had repeatedly asked Frank to work with them and sell
new cars. He repeated that Frank was a good salesman and he
would like to have Frank sell new cars. He then told Frank that
he could not have him be the only salesman who did not sell
new cars, that it would not be fair to the other salesmen and
would not fit in with the organization’s plans. Frank again said
something about having a verbal contract and Brockman again
denied making such an agreement with him. Brockman asked
one more time if Frank would acquiesce. Frank said he would
not. Brockman then said, “[W]ell, if you won’t sell new cars,
then you won’t have a place in our organization.” At that point,
D’Agostino gave Frank the warning notice and Brockman had
Frank open the envelope containing the pink slip. Brockman
confirmed Frank’s testimony that he initially refused to sign the
warning notice, and asked for time to read it over and prepare a
response. He acknowledged that Frank was not given such an

7 Pavone, like Frank, had been hired as a used-car salesman. Unlike
Frank, Pavone complied with the Respondent’s request that he take
classes and become certified as a new-car salesman.
opportunity. Brockman testified that Frank did write a re-
sponse before leaving the office, as shown on the warning no-
tice. D’Agostino corroborated Brockman’s testimony in most
respects, although his testimony on the whole was not as clear
and cohesive as that of Brockman. D’Agostino, unlike
Brockman, often had to have his recollection refreshed with
leading questions. On the whole, I did not find D’Agostino to
be as convincing a witness as Brockman who struck me as gen-
erally credible.
D’Agostino did confirm Frank’s testimony to some extent
regarding what happened after they left Brockman’s office on
June 11. According to D’Agostino, after he escorted Frank back
to his desk and left to get boxes, he saw Frank at the copier and
then saw Frank leave the building and start handing out the
papers he had copied. He acknowledged stopping Frank and
telling him that he had to leave the premises immediately. He
also admitted saying something about soliciting, although he
did not testify what he said. D’Agostino denied seeing what
was on the papers that Frank was handing out,8 and he denied
telling Frank that he had spoken to an attorney and that “it’s
already been taken care of.”
The Union filed a petition seeking to represent the Respon-
dent’s Mazda new- and preowned salesmen on June 14, the
Monday following Frank’s termination. The following Friday,
June 18, the Union leafleted at the entrance to the Respondent’s
facility with flyers informing the public that the Respondent
was “unfair,” accusing the Respondent of terminating Frank for
trying to join the Union. The Union parked its tractor-trailer
across the street from the facility throughout the day, playing
music during the leafleting. On that same day, the Respondent
terminated Sachs.
Sachs had worked for Volvo City West from October 1996
until the Respondent acquired the business in April 1997. He
was hired by the Respondent and continued to work as a Mazda
new-car salesman until his termination. There is no dispute that
he was a good salesman. It is also undisputed that, throughout
his employment by the Respondent, Sachs owned several con-
dominiums and rental properties. Sachs hired contractors, in-
surance agents and rental agents to handle the day-to-day
activities of this business. He acknowledged however that he
occasionally received calls at the dealership from tenants and
others related to this outside business. According to Sachs,
when he received such a call, he immediately referred the caller
to the appropriate person he had hired to handle the issue, e.g.,
a contractor to make repairs, or the rental agent to deal with
tenant questions. He denied initiating any calls from the dealer-
ship related to this business and denied otherwise conducting
any activities related to his rental business while on the Re-
spondent’s property during working hours.
Sachs also received an employee warning report from
D’Agostino on May 18.
According to Sachs, when D’Agostino tried to give him the
warning in his office, Sachs asked him what it was. Sachs told
D’Agostino that he knew from his years in business that a
“warning” was a way to document events before terminating an
8 At one point, D’Agostino testified incredulously that the papers
Frank was handing out were blank.
NEWLONBONBRO, LLC (CONNECTICUT’S OWN) 1563
employee.9 D’Agostino responded that it was basically a pro-
gress report. Sachs told D’Agostino if that’s what it was, then
put that on the notice and D’Agostino complied with this re-
quest. In the warning report/progress report, D’Agostino wrote
the following for the company’s statement:

4–19–99 Last week of April Howard was taken out of
his new car demo and put into a preowned older model
used car service loaner. Howard has repeatedly not fol-
lowed instructions––sales procedures, quoting prices from
cost without checking with a manager.
5–17–99 Since warning Howie has improved in com-
municating with managers and has tried to follow sales
procedures. Howie will receive another type of demo pre-
owned at this time.

Sachs acknowledged that D’Agostino had discussed his vio-
lation of sales procedures in April and had taken away his new
demo at that time as a form of punishment, as reflected in the
May 18 warning/progress report. When D’Agostino gave him
this warning/progress report, Sachs refused to sign it, request-
ing time to prepare a written response. Sachs submitted his
response on a separate sheet of paper and signed the warn-
ing/progress report on May 24. In his statement, Sachs disputed
the allegation that he “repeatedly” failed to follow sales proce-
dures and complained about defects in the old service loaner he
was given as “punishment.” Sachs also highlighted his sales
performance and committed himself to work to the best of his
ability to promote the Respondent’s business.
As noted above, Sachs attended at least one, if not both, un-
ion meetings at Frank’s house before Frank’s termination. He
signed a union authorization card on June 4, the same date as
Frank. Sachs did not engage in any other union activity and did
not openly display his support for the Union at work. Sachs’
usual day off was Friday so he was not at work when Frank was
terminated. He learned of Frank’s termination when he came
into work, in the new showroom, on June 12.
Sachs testified that, soon after he arrived at his new desk on
June 12, Pavone called him over to his desk. Pavone told Sachs
that Frank had been fired for union activity. While he and
Pavone were talking, D’Agostino came over and said, “I under-
stand you went to the Union meeting.” When Sachs asked,
“What makes you say that,” D’Agostino replied, “I know you
went to the Union meeting. I understand there were just two
people there.” Sachs asked, “who.” D’Agostino replied, “you
and Micky.” When Sachs then admitted that he had been at the
meeting, D’Agostino asked, “why would you want to go to a
meeting and hurt the company?” Sachs disagreed that he was
hurting the company by going to the meeting, insisting that he
always tries to promote the company. D’Agostino then said,
“[Y]ou know, with Micky gone, you must be the new Union
rep.” Sachs told D’Agostino that he was crazy, that Sachs was
not a union rep. According to Sachs, D’Agostino changed the
subject somewhat by telling him that if there were a union at
the dealership, the salesmen would probably have to punch a

9 Before getting back into the car business in about 1995, Sachs
spent many years in the garment industry, rising to the rank of vice
president with a major apparel company.
timeclock and if they punched in late two or three times, it
could be reason for dismissal. Initially, Sachs testified that that
was the end of the conversation. However, after the General
Counsel refreshed his recollection through a leading question,
Sachs recalled that D’Agostino ended the conversation by say-
ing that, if a union got into the dealership, he would quit. Sachs
testified that, after making this statement, D’Agostino walked
away. Sachs also testified that, after D’Agostino left, he asked
Pavone how D’Agostino knew about the union meeting.
Pavone told Sachs that D’Agostino probably was “fishing,” that
he really didn’t know.
The Respondent called Pavone as a witness. He appeared
voluntarily without a subpoena. He is still employed as a
salesman by the Respondent, selling Mazda new- and preowned
vehicles. Pavone testified that he probably told Sachs on June
12 that Frank had been fired the previous day because he knew
that Sachs was not at work that day. However, he emphatically
denied telling Sachs that Frank had been fired for union activi-
ties. Pavone testified that he was certain of this because he
believed that Frank had been let go for refusing to sell new
cars. In response to leading questions from Respondent’s coun-
sel, Pavone also denied hearing D’Agostino make any of the
statements attributed to him by Sachs. He testified further that
he did not recall seeing Sachs talking to D’Agostino that day.
He conceded that Saturdays are a busy retail day for the sales-
men and that he may have been away from his desk, but he had
no recollection of witnessing any conversation similar to that
described by Sachs. On cross-examination, Pavone testified that
he had only been contacted by the Respondent’s counsel and
questioned about this incident the night before his testimony, 7
months after it allegedly occurred.10
D’Agostino denied seeing Sachs speaking to Pavone on the
morning of June 12 and denied having any conversation with
Sachs about the Union or Frank’s discharge. In response to
leading questions from Respondent’s counsel, D’Agostino also
denied making any of the statements attributed to him by Sachs.
D’Agostino further denied having any knowledge regarding
Sachs’ union activities or sympathies before he was terminated.
Sachs testified that he was away from the dealership, attend-
ing a Mazda sales seminar on the afternoon of June 17. Al-
though he did return to the dealership late that afternoon to
bring back a fellow salesman who had to pick up his car, he did
not recall if he stayed and performed any work. The following
day, June 18, was a Friday. Although Friday is Sachs’ usual
day off, he had arranged to go in to handle a delivery of a new
car to a customer that morning. Sachs testified that he was at
the dealership from about 9 to 11 a.m. on June 18, taking care
of the delivery. While he was there, D’Agostino handed Sachs
a slip of telephone messages that had been left for Sachs on the
Respondent’s voicemail during the night from a woman named
Flora. D’Agostino told Sachs that one of his tenants had called
10 The General Counsel attempted to show on cross-examination that
the Respondent’s counsel violated the Board’s guidelines for such
questioning. See Johnnie’s Poultry Co., 146 NLRB 770 (1964). Al-
though Pavone testified that he could not recall if counsel gave him any
assurances against reprisals by the Respondent, the General Counsel
did not seek to amend the complaint to allege any further violation of
the Act based on this questioning.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1564
several times in the middle of the night. Sachs looked at the
messages and told D’Agostino that Flora was not one of his
tenants. At the time he did not know who she was. Although his
memory was not entirely clear, he was reasonably certain that
D’Agostino did not give him any warning reports before he left
the dealership at 11 a.m. Sachs testified that D’Agostino called
him at home about 2 p.m. that afternoon, telling Sachs that one
of his deals was messed up and that he needed to come back to
the dealership to straighten it out. Sachs told D’Agostino that
he couldn’t come back, because he had a house full of people
and was busy preparing for an event involving his granddaugh-
ter. D’Agostino insisted that Sachs return and Sachs ultimately
agreed. According to Sachs, he returned to the dealership at
about 3:30 p.m. He was met by D’Agostino who took him to
the old used-car office that was in the process of being demol-
ished. D’Agostino pointed to a cardboard box in the corner and
said, “there’s your stuff, we can’t go on this way anymore,
you’re fired . . . you can’t do business on company time.” After
a discussion over who packed the box and whether it contained
all of Sachs’ belongings, he and D’Agostino went back to
D’Agostino’s office. According to Sachs, it was at this point
that D’Agostino handed him three warning reports and a pink
slip, all dated June 18.
Each of the warning reports documents an incident of Sachs
allegedly conducting personal business on companytime. Two
were prepared and signed by D’Agostino. The third, which
relates to the telephone messages left by Flora during the night
between June 17 and 18, is unsigned and in a different hand-
writing. The telephone message slips which Sachs recalled
receiving earlier that morning were attached to this warning
notice. D’Agostino did not recognize the handwriting and did
not know who prepared this warning report. The first report
prepared by D’Agostino describes a telephone call for Sachs
that D’Agostino intercepted on Thursday evening, June 17,
when Sachs was away from the dealership. In the warning re-
port, D’Agostino writes that Sachs had been warned verbally
several times about conducting business related to his rental
properties on companytime and that, despite these warnings, he
had received a numerous amount of calls over the past several
months on rental properties.” In the warning report, D’Agostino
wrote that on June 17, at 7:45 p.m., he received a call for Sachs
from an individual who identified himself as a tenant of Sachs.
He left a number for Sachs to call him. When D’Agostino
asked if he could help the caller, the caller told D’Agostino no,
to have Sachs call him. D’Agostino also referred to the prior
warning he had given Sachs regarding his sales procedures. The
third warning report, dated June 18, and the second one pre-
pared by D’Agostino, relates to the receipt at the dealership of a
fax for Sachs from his insurance agent regarding the premium
on one of his properties. In this warning report, D’Agostino
wrote that the fax was received at 1:20 p.m. on June 19, an
obvious error. A copy of the fax, which is in evidence, shows
that it was received on June 18. D’Agostino summarized his
decision on the warning report as follows:

This type of other interests and other business cannot
be happening any more on company time. Howard is to
sell automobiles not conduct rental business anymore on
company times.
Howard has ignored numerous written and verbal
warnings in regards to conducting his outside personal
business on company time. The egregious attitude he has
displayed in this matter shows me that he will not comply
with our previous directions. Therefore he is immediately
dismissed––terminated. [Sic.]

The reason for discharge indicated on the pink slip given to
Sachs with these warning reports is “conducting personal busi-
ness on company time.”
Sachs disputed the claim in the warning reports that he had
previously been warned about conducting business on com-
panytime. Sachs testified that D’Agostino would sometimes
question him when he saw him on the phone and ask whom he
was speaking to. At times, D’Agostino asked, “is this your
tenants’ line?” Sachs would generally respond by asking if
D’Agostino wanted to get on the phone to see whom he was
speaking to. According to Sachs, he was unaware of any prohi-
bition on employees making or receiving personal calls at
work. Sachs also testified that several other salespeople had
outside interests that they pursued while at the dealership. One
salesman was a musician who set up rehearsals and gigs. An-
other salesman had a wife who owned a beauty parlor and he
ordered supplies for her from work. A third salesman had a
vending machine business and had some of his machines at the
dealership. Sachs denied that his ownership of rental properties
interfered with the performance of his job as a salesman for the
Respondent. According to Sachs, it actually helped him be-
cause it provided an opportunity to network, hand out his busi-
ness cards, and otherwise prospect for potential sales of cars.
Sachs testified that he also sold vehicles to people with whom
he came in contact through his rental properties.
Brockman testified that he was involved in the decision to
terminate Sachs, but that he left it up to D’Agostino to make the
decision. Brockman denied any knowledge of Sachs’ union
activities or sympathies at the time the decision was made.
According to Brockman, D’Agostino reported to him the sev-
eral incidents on June 17 and 18 involving the telephone calls
and fax that came into the dealership related to Sachs’ rental
business. Brockman testified that, after D’Agostino gave him
the details, he told D’Agostino to use his discretion, that if
D’Agostino felt these events were reason for termination, to
terminate Sachs. Brockman testified that he himself believed
the events of June 17 and 18 were sufficient reason to terminate
Sachs. Brockman also described another conversation with
D’Agostino, some months earlier, in which D’Agostino told
him that Sachs was receiving a lot of phone calls at the dealer-
ship related to his rental properties. Brockman told D’Agostino
at that time that this was unacceptable. He instructed D’Agos-
tino to take care of it. Brockman testified that the Respondent
has an unwritten “policy” against employees having second
jobs. He described two other employees who held second jobs
that impacted their performance for the Respondent, a parts
department employee and a receptionist. According to
Brockman, he talked to the employees about their reason for
working another job and offered them a raise so that they would
NEWLONBONBRO, LLC (CONNECTICUT’S OWN) 1565
not have to work two jobs. Brockman admitted that neither
employee was disciplined. Although Brockman acknowledged
being aware that one of the salesman was a musician and that
the wife of another owned a beauty parlor, he denied being
aware that either had conducted business related to these activi-
ties at the dealership. With respect to the salesman who owned
the vending machines, Brockman testified that he told the
salesman that it was a conflict of interest and he had the vend-
ing machines removed when he became aware of this arrange-
ment. Brockman testified further that the Respondent no longer
employs the salesman who owned the vending machines. He
did not testify when these events occurred.
D’Agostino, who also denied any knowledge of Sachs’ union
activities or sympathies, testified that the events leading up to
the decision to terminate Sachs started with a telephone call he
received on Thursday evening, June 17, from one of Sachs’
tenants. According to D’Agostino, he picked up the phone
when he heard the operator page Sachs three times, believing
that it might be a potential sales call. He introduced himself and
asked the caller if there was something he could help him with
for Sachs. The caller said no. D’Agostino asked if he was call-
ing about an automobile and the caller said no, that he was a
tenant of Sachs and needed to talk to Sachs. He left a phone
number where Sachs could reach him. D’Agostino testified on
direct that he wrote up the warning report about this call and
gave it to Sachs the next morning, around 10 or 11 a.m.
D’Agostino testified that the same day, June 18, after he had
given the first warning report to Sachs, a fax was received on
the fax machine in his office addressed to Sachs from an insur-
ance agent. The subject of the fax was the insurance premium
on one of Sachs’ properties. In addition, according to D’Agos-
tino, he received telephone message slips from someone in the
upstairs office indicating that one of Sachs’ tenants had called
three or four times around 2 a.m. complaining about a distur-
bance at his building. D’Agostino recalled that he received
these slips about the time of the fax. D’Agostino then spoke to
Brockman about these developments. According to D’Agos-
tino, they reached the conclusion that Sachs was conducting a
business on companytime. Brockman told D’Agostino, “do
what you think is right.” D’Agostino then finished writing up
the warning report related to the fax and carried out the termi-
nation. D’Agostino did not specifically dispute Sachs’ descrip-
tion of the way in which the termination was carried out.
D’Agostino also testified that he had spoken to Sachs several
times previously about conducting his rental business at work.
According to D’Agostino, when the salesmen were sharing the
smaller quarters in the used-car building during the showroom
renovation, he often heard Sachs’ on the phone talking to ten-
ants. He routinely told Sachs on these occasions, “you can’t
conduct business” or to “knock it off.” D’Agostino testified that
he was unaware of any other salesman conducting outside busi-
ness while in the dealership. He acknowledged that he was
aware of unsolicited menus being faxed to the dealerships from
restaurants in the area and that the salesman ordered food via
the fax machine on occasion. D’Agostino also conceded that
the Respondent did not have any rules regarding making or
receiving personal calls.
On cross-examination, D’Agostino’s testimony about the se-
quence of events leading up to Sachs’ termination became
somewhat muddy. As the General Counsel poked holes in
D’Agostino’s direct testimony, he became less certain of his
answers and more and more confused. It became clear, on
cross-examination, for example, that D’Agostino did not give
any prior written warnings to Sachs about his rental business
and that he did not give Sachs any of the three warnings on the
morning of June 18, while Sachs was at the dealership handling
the delivery. As with his testimony regarding Frank, D’Agos-
tino was not very convincing.
As noted above, the Union filed a petition seeking to repre-
sent the Mazda new- and preowned salesmen employed by the
Respondent on June 14. On June 24, the Respondent and the
Union signed a Stipulated Election Agreement setting the date
for the election on July 16. The Union lost the election by a
four to zero vote, with two challenged ballots, i.e., those cast by
Frank and Sachs. It is undisputed that the Respondent did not
conduct any campaign to encourage its employees to vote
against the Union during the preelection period.
B. Analysis and Conclusions
1. The 8(a)(1) allegations
The 8(a)(1) allegations of the complaint are based on the tes-
timony of Sachs regarding D’Agostino’s statements to him on
the morning of June 12. Although Sachs testified that the state-
ments were made in front of Pavone’s desk with Pavone pre-
sent, Pavone did not corroborate Sachs. As noted above,
D’Agostino denied that any such conversation occurred. This
allegation is the key to the General Counsel’s case. If Sachs
testimony is credited, then the statements made by D’Agostino
would satisfy the General Counsel’s burden of establishing
knowledge and animus in support of the 8(a)(3) allegations. If
Sachs is not credited, then there is no evidence of animus and
no evidence of knowledge of Sachs’ union activities or sympa-
thies.
As already noted, I was not impressed with D’Agostino’s
overall testimony. He appeared to have a poor memory of
events, frequently became confused and generally appeared to
be less than candid about his knowledge of the Union. As will
be discussed in greater detail below, his testimony regarding
the reasons for Sachs’ termination contained many inaccuracies
and exaggerations that undermined his testimony. While Sachs
also had some difficulty with recall of certain events, his over-
all demeanor was more impressive. His testimony about this
particular conversation did not appear to be a fabrication. The
fact that Pavone did not corroborate Sachs is troubling because
I found him to be credible in many respects. At the same time, I
note that Pavone is still employed by the Respondent and that
he was placed in the unenviable position of having to testify
whether his current supervisor had threatened a discharged
employee. He was asked to do this apparently without being
given any assurances that his employer would not take any
action against him based on his testimony. Pavone candidly
acknowledged that the thought of retaliation had crossed his
mind when he was questioned the previous evening by the Re-
spondent’s attorney. Under the circumstances, his failure to
corroborate Sachs is not surprising. I also note that his denials
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1566
of the alleged unlawful statements of D’Agostino were elicited
entirely through leading questions and that when asked more
open-ended questions, he professed a lack of recall. On bal-
ance, after considering the testimony, the demeanor of the wit-
nesses and the credibility factors, just noted, I find that Sachs’
testimony is the more credible and that the conversation did
occur as he described it on the morning of June 11.
The complaint alleges that D’Agostino’s statements to Sachs
violated the Act in three distinct ways. I agree with the General
Counsel that D’Agostino’s statements that he understood that
Sachs had gone to the union meeting and that there were just
two people there, Sachs and Frank, would reasonably lead an
employee to believe that the Respondent had kept its employ-
ees’ activities under surveillance Tres Estrellas de Oro, 329
NLRB 50, 51 (1999), and cases cited therein. See also Ichikoh
Mfg. Inc., 312 NLRB 1022, 1023 (1993). D’Agos-tino followed
up this impression by questioning why Sachs would go to a
union meeting, activity which D’Agostino equated with hurting
the company. Such questioning of an employee regarding his
reasons for supporting a union constitutes unlawful interroga-
tion when considered in the context of the entire conversation.
See Westwood Health Care Center, 330 NLRB 935, 939
(2000). D’Agostino then unlawfully threatened Sachs that se-
lection of the Union would result in more onerous working
conditions by telling him that the salesmen would probably
have to punch a timeclock and would risk dismissal if they
were late two or three times. See Schaumburg Hyundai, Inc.,
318 NLRB 449 (1995). Accordingly, l find that the Respondent
violated Section 8(a)(1) of the Act on June 12, as alleged in the
complaint.
2. The 8(a)(3) allegations
The complaint alleges that the Respondent terminated Frank
and Sachs, in violation of Section 8(a)(1) and (3) of the Act,
because of their union membership, activities, and support. In
cases such as this, that turn on employer motivation, the Board
applies the test it established in Wright Line, 251 NLRB 1083,
1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). The General Counsel must first show, by
a preponderance of the evidence, that an employee’s protected
conduct was a motivating factor in the employer’s conduct. On
such a showing, the burden shifts to the employer to prove that
it would have taken the same action even in the absence of the
protected conduct. To sustain his initial burden, the General
Counsel must show: (1) that the employee was engaged in pro-
tected activity; (2) that the employer was aware of this activity;
and (3) that activity was a substantial or motivating reason for
the employer’s action. Motive may be demonstrated by circum-
stantial evidence as well as direct evidence and is a question of
fact. Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999), and
cases cited therein. With respect to the employer’s burden un-
der Wright Line, the Board has said that it is not enough to
show that it had a legitimate reason for imposing discipline
against an employee. The employer must demonstrate that the
same action would have been taken even without the protected
conduct. Hicks Oils & Hickspas, 293 NLRB 84, 85 (1989).
a. Michael Frank
The evidence in the record clearly establishes that Frank had
engaged in protected conduct before his termination. His testi-
mony that he talked to his fellow employees about joining the
Union was corroborated by Sachs and Pavone. These witnesses
also corroborated his testimony that Frank held two meetings at
his house where employees had the opportunity to meet with
union representatives, with the second meeting being held the
night before his termination. Novak corroborated Frank’s tes-
timony that Frank was the initial employee contact and was
designated to be the “inplant organizer” for the Union prior to
his termination. All of this testimony was not contradicted by
any of the Respondent’s witnesses.
With respect to knowledge, the evidence establishes that the
Union faxed a letter to the Respondent on June 11, the day
Frank was terminated, identifying him as the “inplant organ-
izer.” Any doubt whether that fax was actually received by the
Respondent was eliminated by Brockman’s testimony that he
had been informed of the contents of the letter by early after-
noon, before he met with Frank to terminate him. In addition,
the credited testimony of Sachs above regarding D’Agostino’s
statements on June 12 establishes that Frank’s immediate su-
pervisor was aware of his involvement in the Union.
D’Agostino’s statements to Sachs, which I have already
found to be unlawful, establishes the Respondent’s antiunion
animus. This, however, is the only evidence of animus in the
record. In particular, the record contains no evidence that
Brockman, the individual who made the decision to terminate
Frank, had exhibited any antiunion animus. Moreover nothing
in the statement of D’Agostino the morning after Frank’s ter-
mination can be considered an admission of unlawful motiva-
tion. He merely informed Sachs that he knew who was involved
with the Union, that they had had a meeting with union repre-
sentatives and that, with Frank gone, Sachs would probably be
the union representative. Thus, this conversation does not pro-
vide General Counsel with the “smoking gun” to prove that
Frank was fired for union activities. See Alexian Bros. Medical
Center, 307 NLRB 389 (1992).
As noted above, the General Counsel may rely on circum-
stantial evidence, such as timing, disparate treatment, or shift-
ing reasons for the employer’s action, to prove unlawful moti-
vation when direct evidence is absent. The General Counsel has
taken this approach here, emphasizing the timing of Frank’s
discharge on the very day that the Respondent was informed of
Frank’s leading role in the Union’s organizing campaign and
the seemingly abrupt manner in which the termination was
effectuated. The General Counsel also relies on the absence of
any written rules, or disciplinary policies as somehow making
the Respondent’s actions suspect. I find this latter argument
unpersuasive as there is no requirement under the Act that an
employer have written rules or policies regarding discipline.
The only requirement under the Act is that any discipline im-
posed must be free of any unlawful motivation. An employer is
always free to exercise its discretion in a nondiscriminatory
manner with respect to issues of employee discipline.
Having considered the above, and all of the evidence in the
record, I find that the General Counsel has made out a strong
prima facie case that Frank’s union activities were a motivating
NEWLONBONBRO, LLC (CONNECTICUT’S OWN) 1567
factor in the Respondent’s termination of Frank. The element of
timing, in particular, strongly supports an inference that Frank’s
designation as inplant organizer, which Respondent knew about
before his termination, motivated his apparently hasty termina-
tion. The fact that D’Agostino openly displayed his opposition
to the Union the day after he participated in the decision to
terminate Frank is another factor supporting such an inference.
This finding shifts the burden to Respondent to prove that
Frank would have been terminated in any event.
Although not entirely free from doubt, I am convinced by the
weight of the evidence that Respondent would have terminated
Frank on June 11 even in the absence of union activity because
of his adamant and persistent refusal to comply with the Re-
spondent’s reasonable request that he sell new cars.11 The re-
cord contains undisputed evidence that the Respondent had
requested Frank to sell new cars, and had even issued him a
written warning for failing to sell new cars, before he engaged
in any union activity. The warning he received on May 18,
made it clear that the Respondent expected Frank to take the
steps to become certified to sell new cars and to begin selling
new cars now that the new- and used-car departments were
merged. Despite this clear warning. Frank continued selling
only used cars and ignored faxes left on his desk regarding the
certification classes. While it is true that the Respondent appar-
ently tolerated Frank’s noncompliance for some time, the deci-
sion to give him an ultimatum coincided with the opening of
the new showroom and the demolition of the old used-car of-
fice. At that point, it was understandable that the Respondent
would reach the conclusion that it could no longer retain an
employee who refuses to cooperate with its organizational
plans. I thus credit Brockman’s testimony regarding his reasons
for the decision to terminate Frank and the sequence of events
leading up to the termination.
The General Counsel suggests that Frank was treated dispar-
ately because he wasn’t given an opportunity to review the final
warning notice he received and to prepare a response. I do not
agree. This was not a new issue between Frank and the Re-
spondent. He had been given numerous opportunities to re-
spond in the past, including when he received the first written
warning on May 18. Moreover, since he had already told the
Respondent in the meeting on June 11 that he was not going to
sell new cars, what was to be gained by giving him an opportu-
nity to write a response? I am convinced that the Respondent
would have acted in the same manner had Frank not been in-
volved with the Union. The timing of the decision was moti-
vated more by the opening of the new showroom than the des-

11 Frank apparently believed that he had a verbal contract under
which he could only be required to sell used cars. Even assuming there
was such an agreement, nothing in the Act prohibits an employer from
unilaterally changing the terms and conditions of employment of its
unrepresented employees. Moreover, any breach of this agreement
occurred long before any union activity when Brockman began asking
Frank to sell new cars around the first of the year. Certainly, by the
time he received the May 18 written warning, and before any union
activity commenced, the Respondent made it clear to Frank that it no
longer intended to abide by this verbal “agreement”. The record thus
does not support any contention that the Respondent reneged on any
verbal commitment it made to Frank because of his union activity.
ignation of Frank as the Union’s employee organizer. See Pub-
lisher’s Printing Co., 317 NLRB 933 (1995); C. I. Whitten
Transfer Co., 309 NLRB 610, 626–627 (1992).
Having found that the Respondent carried its Wright Line
burden, I shall recommend that this allegation of the complaint
be dismissed.
b. Howard Sachs
The evidence in the record establishes that Sachs was in-
volved in protected activity before his termination. He testified
that he attended two meetings and signed a union authorization
card. Novak corroborated the fact that Sachs had attended at
least one meeting.
The Respondent offered no contradictory evidence. Knowl-
edge of Sachs’ union activities and support is established by his
credible testimony that D’Agostino identified him as one of
only two employees who attended a union meeting. In that
same conversation, D’Agostino indicated his belief that Sachs
was one of the leaders of the union drive by stating that, with
Frank gone, Sachs would be the Union Representative D’Agos-
tino’s equation of Sachs’ attendance at a union meeting with
harm to the company, as well as his threats of more onerous
working conditions, establishes the requisite antiunion animus.
In addition, the circumstances of Sachs’ termination support an
inference that his union activity was a motivating factor in the
hasty decision to let him go.
The record clearly establishes that Sachs was terminated for
“conducting personal business on company time” without any
prior warning that such conduct would lead to termination. The
only previous documented warning Sachs received related
solely to his failure to follow sales procedures. Moreover, the
“Warning Report/Progress Report” in evidence shows that, by
May 18, Sachs had corrected this problem. The May 18 warn-
ing is totally silent on the issue of Sachs’ outside business in-
terests. One would assume that, if his conduct of personal busi-
ness on companytime had been such a longstanding problem
for the Respondent, D’Agostino would have mentioned it in the
“Progress Report” he gave Sachs on May 18. I do not credit
D’Agostino’s testimony that he verbally warned Sachs on nu-
merous occasions that he was not to conduct personal business
on companytime. As with much of his testimony on this issue,
D’Agostino grossly exaggerated the frequency and significance
of his conversations with Sachs over his use of the phone. I
credit Sachs testimony that it was rare for him to receive a tele-
phone call at work regarding his rental units and that he never
initiated any such calls. I also credit Sachs’ version of those
few exchanges he had with D’Agostino in which D’Agostino
asked him who he was talking to on the phone.
In addition, the Respondent’s decision to terminate Sachs af-
ter the three incidents occurred on June 17–18 was made hastily
without any investigation. Sachs was not even given an oppor-
tunity to respond to the allegation that he was conducting per-
sonal business on companytime before he was terminated. In-
stead, he was called back to the dealership on his day off,
handed three warnings at the same time he received a pink slip,
and then given his belongings in a box that had already been
packed for him. The Board has frequently relied on circum-
stances such as these to infer unlawful motivation. See Lancer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1568
Corp , 271 NLRB 1426, 1427 (1984), enfd. 759 F.2d 458 (5th
Cir. 1985). See also W. W. Grainger v. NLRB, 582 F.2d 1118,
1121 (7th Cir. 1978). The Respondent’s harsh treatment of
Sachs for this alleged infraction was also starkly different from
the way it treated other employees who held outside employ-
ment. Rather than talk to Sachs about the problem and try to
work out a way for him to continue his employment with the
Respondent without the need for a second source of income, as
it did with two other employees, the Respondent abruptly fired
him. This strongly suggests that something other than the tele-
phone calls and messages from tenants and the fax from Sachs’
insurance agent were motivating the Respondent’s actions on
June 18. In this regard, I note that the decision was made to
terminate Sachs on the same day that the union tractor-trailer
was parked across the street and its members were leafleting
the Respondent’s customers in protest of Frank’s discharge.
Finally, I note that the asserted reason for Sachs’ termination
does not withstand even minimal scrutiny. The Respondent
claimed that Sachs was conducting personal business on “com-
pany time” even though the June 17 telephone call from his
tenant, the 34 messages left for Sachs on the Respondent’s
voicemail overnight and the fax received at the dealership from
his insurance agent on June 18 all occurred at times when Sachs
was not even working! The Respondent offered no evidence
that Sachs initiated these communications to the dealership, or
that he otherwise took time away from his work as a salesman
while at the dealership to handle matters related to his rental
business. This and the other circumstances noted above are
sufficient to satisfy the General Counsel’s burden of proof that
protected activity was a substantial or motivating factor in the
Respondent’s decision to terminate Sachs.
I conclude further that the Respondent has not carried its
burden of proving that it would have terminated Sachs for the
events of June 17–18 in the absence of protected activity. Un-
like Frank, the issue of Sachs’ outside business interests was
not a longstanding dispute with documented warnings predating
his union activity. Rather, it appears that there was no issue,
until the events of June 17 and 18 and that the Respondent
seized on these events as a pretext to rid itself of the individual
whom it believed was the sole remaining union supporter.
The same circumstances cited above which support the in-
ference of unlawful motivation establish the pretextual nature
of the asserted reason for discharge. I find that, based on its
treatment of other employees, the Respondent would not have
fired Sachs after receiving the telephone calls and fax in the
absence of union activity. On the contrary, it would have con-
fronted him about these matters, determined the extent of his
involvement in the calls and fax12 and sought to work out a
compromise under which he could have continued working for

12 For example, the woman who called during the night to complain
about a disturbance was not even one of Sachs’ tenants. The Respon-
dent did not even take the time to find out who she was or why she was
calling Sachs at the dealership. Similarly, the Respondent made no
attempt to find out if the fax from the insurance agent was sent to the
dealership by mistake or intentionally at the direction of Sachs. There is
no dispute that the Respondent had no established policy prohibiting
making or receiving personal phone calls and unsolicited faxes were
not uncommon at the dealership.
the Respondent without his outside business interfering with
the performance of his sales. The Respondent acknowledged
that Sachs was a good salesman and his rental business had, in
fact, generated sales of automobiles. Thus, it was in the Re-
spondent’s interest to retain him.
Having found that the Respondent failed to rebut the General
Counsel’s prima facie case. I conclude that the Respondent
violated Section 8(a)(1) and (3) of the Act, as alleged in the
complaint, when it terminated Howard Sachs on June 18.
CONCLUSIONS OF LAW
1. By interrogating employees regarding their union sympa-
thies, by creating the impression that employees’ union activi-
ties were under surveillance, and by threatening employees
with more onerous working conditions if they selected the Un-
ion as their bargaining representative, the Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By terminating Howard Sachs on June 18, 1999, because
he joined, supported, or assisted the Union, the Respondent has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of
the Act.
3. The Respondent has not engaged in any other unfair labor
practices alleged in the complaint.
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 and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, in order to remedy the
unlawful discharge of Sachs, the Respondent must offer him
reinstatement and make him whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The Respondent, Newlonbro, LLC (Connecticut’s Own)
Milford, Milford, Connecticut, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union sup-
port or union activities.
(b) Creating an impression among its employees that their
union activities were under surveillance by the Respondent.
(c) Threatening its employees with more onerous working
conditions if they select a union as their collective-bargaining
representative.
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order 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.
NEWLONBONBRO, LLC (CONNECTICUT’S OWN) 1569
(d) Discharging or otherwise discriminating against any em-
ployee for supporting Local 1040, International Brotherhood of
Teamsters, AFL–CIO or any other union.
(e) 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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Howard
Sachs full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Sachs whole for any loss of earnings and other
benefits suffered as a result of the discrimination against him in
the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge, and within 3
days thereafter notify the employee in writing that this has been
done and that the discharge will not be used against him in any
way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Milford, Connecticut, copies of the attached notice
marked “Appendix.”14 Copies of the notice, on forms provided
by the Regional Director for Region 34, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. 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 pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since June 12, 1999.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

14 If this Order is enforced by a Judgment of the United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
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.

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 the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT coercively question you about your union
support or activities.
WE WILL NOT make statements that create the impression
that we have your union activities under surveillance.
WE WILL NOT threaten you with more onerous working
conditions if you select a union as your collective-bargaining
representative.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Local 1040, International Brother-
hood of Teamsters, AFL–CIO or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Or-
der, offer Howard Sachs full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make Howard Sachs whole for any loss of earn-
ings and other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charge of Howard Sachs, and WE WILL, within 3 days thereaf-
ter, notify him in writing that this has been done and that the
discharge will not be used against him in any way.
NEWLONBRO, LLC (CONNECTICUT’S
OWN) MILFORD