Olympic Limousine Service, Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1986

278 N.L.R.B. 932 (N.L.R.B. 1986)

932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Olympic Limousine Service , Inc. and Local 56,
United Food and Commercial Workers Union,
AFL-CIO. Cases 22-CA-13135, 22-CA-13205,
and 22-RC-9155
11 March 1986
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
shop helpers, tow truck drivers and mainte-
nance employees employed by the Employer
at its Farmingdale, New Jersey location.
Gard A. Carlson, Esq., for the General Counsel.
Donald B. Shanin, Esq. (Grotta, Glassman & Hoffman), of
Roseland, New Jersey, for the Respondent. '
Timothy R. Hott, E,sq. (Hott, Margolis & Hernandez), of
Jersey City, New Jersey, for the Charging" Party and
Petitioner.
BY MEMBERS DENNIS, BABSON, AND
STEPHENS
On 19 August 1985 Administrative Law Judge
Thomas E. Bracken issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegat-
ed 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, findings,' and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Olympic
Limousine Service, Inc., Farmingdale, New Jersey,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
IT IS FURTHER ORDERED that Objection 1 in
Case 22-RC-9155 is overruled.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Local 56, United Food and
Commercial Workers Union, AFL-CIO and that it
is the exclusive collective-bargaining representative
of the employees in the following appropriate unit:
All full time and regular part time mechanics
and lead mechanics, car washers/fuelers, body
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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 Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In part 111,11, of his decision, the judge inadvertently referred to em-
ployee Willey as Wilson.
Absent exceptions , we pro forma adopt the judge's recommendation
that Objection 1 in Case 22-RC-9155 be overruled.
2 The General Counsel's motion to strike portions of the Respondent's
brief is denied.
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge.
This case was tried at Newark, New Jersey, on 16
August 1984.1 The charge in Case 22-CA-13135 was
filed by the Union on 28 March, and.the charge in Case
22-CA-13205 was filed by the Union on 27 April,
amended 29 May, and an order consolidating cases and a
consolidated complaint was issued 31 May. The com-
plaint alleges that Olympic Limousine Services, Inc., Re-
spondent, violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act. On 5 June the Respondent
filed its answer, denying the material allegations of the
complaint.
On 22 February the Union had filed a petition for a
representation election in Case 22-RC-9155. Pursuant to
a Stipulation for Certification Upon Consent Election,
executed by the parties on 13 March, an election was
conducted on 23 March among all full-time and regular
part-time mechanics and lead mechanics, car
washers/fuelers, body shop helpers, tow truck drivers,
and maintenance employees employed by the Employer
at its Farmingdale, New Jersey facility during the pay-
roll period ending 2 March 1984, excluding all office
clerical employees, reservationists, bus, van, and limou-
sine drivers, dispatchers, the parts manager and other
managerial employees, professional employees, guards,
and supervisors as defined in the Act. Thereafter, a tally
of ballots was duly served on the parties which showed
that 13 valid votes were counted, with 7 cast for the pe-
titioning Union, and 6 for the Employer, and no chal-
lenged ballots.
Thereafter, on 2 April the Employer filed timely ob-
jections to conduct affecting the results of the election.
Subsequently, on 14 June the Acting Regional Director
issued a report on objections and order consolidating
cases, in which he ordered that Respondent Objection 1
be consolidated for hearing and decision with Cases 22-
CA-13135 and 22-CA-13205 by an administrative law
judge.2
These latter cases involve the issues of whether the
Respondent:
a. Threatened employee Kyle Willey with more oner-
ous working conditions if its employees selected the
Union as their bargaining representative.
i All dates are in 1984 unless otherwise indicated.
2 R. Objs. 2 through 10 were found to be without merit by the Acting
Regional Director.
'M NT RR Nn 111
OLYMPIC LIMOUSINE SERVICE 933
b. Created an impression among its employees that
their union activities were under surveillance.
c. Unlawfully interrogated employee Anthony Aur-
iano regarding his union sympathies.
d. Unlawfully discontinued the operation of its second
shift.
e. Constructively discharged employee Kyle Willey in
violation of Section 8(a)(1) and (3) of the Act.
f. Whether Kyle Willey forfeited his right to be rein-
stated.
Upon the entire records including my observation of
the demeanor of the witnesses , and after due consider-
ation of the briefs filed by the General Counsel, the
Union, and the Respondent , I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company , a New Jersey corporation, is engaged
in the business of providing interstate and intrastate
transportation of passengers, in the course of which it
has derived gross revenue in excess of $50 ,000 for the
transportation of passengers from the State of New
Jersey directly to points outside the State . The Company
admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a limousine service out of a
large facility in Farmingdale, New Jersey, that transports
passengers on a reservation basis to and from airports in
Newark , Philadelphia, Kennedy, and LaGuardia in New
York. It has a fleet of approximately 200 cars featuring
stretch limousines, station wagons, and vans. On each
day, an average of 50 cars are in need of repair. Re-
spondent operates 24 hours a day , 7 days a week, and
has approximately. 300 employees . Approximately 150
are drivers, with the balance consisting of dispatchers,
secretaries , office personnel , and service department em-
ployees . The instant case concerns only the service de-
partment which employed mechanics , washer/fuelers,
body shop helpers, tow truck drivers , and custodians for
a total of 13 employees . None of Respondent's employ-
ees were represented by a union , and the record does not
disclose that any of its employees have been represented
by a union since its founding in 1974.
Respondent's top management includes Roger Passar-
ella, president and part owner, Russell Passarella, vice
s After the hearing had been closed , the General Counsel filed a
motion to correct exhibit file, based on the fact that in the exhibit file
received by the General Counsel there was a copy of the affidavit of An-
thony Auriano, whereas it should have been the affidavit of Charles At-
kinson. However, in the exhibits forwarded by the court reporter, the
only affidavit was the correct one , that of Charles Atkinson, G.C. Exh. 4.
General Counsel's motion is therefore denied.
president and part owner , Controller Gary Beno , Gener-
al Manager James Murphy, and Personnel and Safety
Manager Erick Bole. Other management personnel were
Joe Gerocs , the service manager , and Harry Gutshall,
the fleet manager . The status of Dennis Winslow, a
sometime leadmen, is discussed in section III,E below.
B. Credibility
As in most of these cases, there were several testimoni-
al conflicts in the sharpest manner between General
Counsel 's witnesses and the Respondent 's witnesses.
Willey was a straightforward , candid , impressive witness
who answered questions quickly and without equivoca-
tion, and I credit his testimony . Charles Atkinson, who
was subpoenaed by General Counsel, was a reluctant,
hostile witness, and I do not credit his trial testimony.
Michael Langan, a former employee of the Respondent,
and a roommate of Willey, was a biased employee who
contradicted himself, and was not a credible witness.
Charles Volk, the union official , was a calm , consistent
witness, and I credit his testimony.
Respondent's witnesses were managerial or superviso-
ry employees of the Company, and they did not impress
me as witnesses in whose testimony I could have confi-
dence as to accuracy and reliability . Rather, I received
the strong impression that they were advocates , trying to
furnish answers that helped their cause , and not trying to
state the facts as they actually remembered them. Cut-
shall was a particularly evasive , unreliable witness. For
example , he testified that he did not know that Willey
was the leading union activist , when the record is crystal
clear that Willey was the only union activist at the shop,
and an open and brush distributor of union cards, pam-
phlets, and announcements . Bole was a very glib, ver-
bose witness , whose testimony did not ring true. Wins-
low was not a credible witness, as will be illustrated by
his testimony concerning the training of a television
camera on Willey.
C. The Employment of Kyle Willey
Willey was interviewed in late September 1983 for the
position of a mechanic by the Respondent's then-service
manager Matt . The service manager examined his appli-
cation and asked technical questions about car repairs,
and offered to hire Willey at the pay of $5 an hour, until
his work could be evaluated. After some discussion,
Willey accepted. Willey then explained that commencing
on 1 November he was going to go to school from 7
a.m. until 1 p .m., and he asked Matt if the Respondent
could schedule his working hours around his school
hours so that they would not conflict.4 Matt replied that
the Company did have fluctuating hours and they might
be able to work it out, but that he wanted to speak to his
personnel manager about it . In Willey's presence, Matt
discussed with the then-personnel manager, Vince
McGuire, Willey's request that after 1 month's employ-
ment he be allowed to work nights and weekends so as
to fit his daytime hours in with his working hours.
4 Willey was going to attend DeVries Technical Institute to study
computer science for business.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McGuire asked the service manager if he thought that
Willey was a good candidate for the open job, and Matt
replied yes. Willey was then hired and was asked by
Matt if he could start the following morning.
Willey began to work for the Respondent on 1 or 3
October as a mechanic.5 His hours for this month were 8
a.m. to 4:30 p.m. Three other mechanics, a front-end me-
chanic, a bodyman, a partsman, and some washer/fuelers
also worked during these hours.6
In the last week of October, Willey talked to the new
service manager, Joe Gerocs, about his school schedule,
and Gerocs assured him that he knew of Willey's starting
school, and that he would change his schedule. Gerocs
posted Willey's new schedule later that day, showing
that he would henceforth work from 2 to 10:30 p.m. on
Wednesday, Thursday,, and Friday, and from 8 a.m. to
4:30 p.m. on Saturdays and Sundays.' _Willey usually
worked with mechanic Bob Soderholm on the night shift
and worked with various mechanics on weekends.
D. The Union Organizing Campaign
In early January, during a lunchbreak, Willey and two
other employees, Dave Eisenvise and Anthony Noble,
were discussing their dissatisfaction with their working
conditions, the pay scale, and that employees were
always getting fired. Noble suggested that the employees
secure a union to represent them and Willey volunteered
to try to reach a union representative. Several days later
Willey talked on the telephone to Charles Volk, the
Union's business representative in Hoboken, New Jersey,
and told him of their problems in the shop. Volk assured
Willey that the Union could get their problems improved
and advised Willey to arrange a meeting of the employ-
ees.
Willey did arrange to have their first meeting at his
apartment, approximately 1 week later. Willey verbally
invited most of the service department employees, but in-
tentionally did not invite several washer/fuelers and
Dennis Winslow, a leadman. This meeting was attended
by four other service department employees, who heard
Business Agent Volk explain how the Union could im-
prove their working conditions. The employees then
signed union authorization cards, and Volk gave addi-
tional cards to Willey.
Willey took these cards to the shop, and distributed
them to the other service department employees with the
exceptions of two washer/fuelers, Charles Atkinson, a
fairly new mechanic, and Dennis Winslow, the leadman.
Willey was convinced that Winslow was against the
Union. After collecting signed cards, he and Volk ar-
ranged a second meeting. This meeting was also held at
Willey's apartment, and was conducted by Volk. In late
February, there was a third, union meeting,' again ar-
ranged by Willey. This time employees were not only
5 Willey believed he started on 1 October, which was a Saturday. If he
started on the Monday after his interview , the date would have been 3
October.
8 Neither Matt nor Vince McGuire testified. Matt had been replaced
by Service Manager Joe Gerocs, and McGuire by Erick Bole , prior to
the hearing. Willey's testimony is uncontradicted and I credit it.
7 Gerocs, a former body mechanic, did not testify and I credit Wiliey's
testimony.
notified by Willey, but Volk also sent letters to the serv-
ice employees, notifying them of the meeting. This meet-
ing was held at the _ Coach House in Neptune, New
Jersey.
As previously stated, the Union filed a petition for an
election on 22 February, and a stipulation for certifica-
tion was signed on 13 March. Present at the Board's
office in Newark, New Jersey, for the Respondent were
Russell Passarella, vice president; James Murphy, general
manager; Erik Bole, personnel and safety manager; and
Frank Campione, labor relations consultant. Volk repre-
sented the Union, and Willey was the only employee
present in behalf of the Union.
In mid-March on the- Saturday prior to the election,
the Union had a fourth meeting for employees of the Re-
spondent. This meeting was held at the Asbury Court
Motel. Willey and Volk arranged the meeting, with
Willey orally notifying employees of the meeting, while
Volk sent letters to the employees inviting them to the
meeting . Employees Robert Long and Jim Toner, who
had been invited by Willey, attended. Also in attendance
for the first time was Winslow who, in the course of the
meeting, posed many questions to Business Agent Volk.
Several days before the election, Willey hand-drafted
leaflets and then posted them on the walls of the shop as
well as in the bathroom. These leaflets proclaimed that
the Union could secure various benefits for the employ-
ees and urged them to vote for the Union. No other em-
ployee posted any union literature. On the day of the
election, Willey was the sole union observer. As previ-
ously stated, seven employees voted for the Union and
six voted against it . By agreement, Winslow was allowed
to vote.
E. The February Shift Changes
In February, Harry Gutshall, who had been hired in
1981 as a driver, and was subsequently promoted to
driver supervisor, was promoted to the position of fleet
manager, giving him overall responsibility for the service
department. Willey testified that he noticed that Gutshall
was changing some shop procedures, and he decided to
ask the new fleet manager if he would change Willey's
hours: Willey was going to school in the day, Monday
through Friday, and working Saturdays and Sundays, as
well as three nights a week, so that by his standards he
had no day off during the entire week. Willey ap-
proached Gutshall and asked him if it would be possible
to have either Saturday or Sunday off, and in turn he
would work one more night during the week to make up
those 8 hours. Gutshall replied that he was thinking of
changing the night shift so the hours would be 4:30 p.m.
to 1 a.m., Monday through Friday. Gutshall explained to
Willey that he wanted to put this night shift into effect in
order to eliminate the 2-1/2-hour' overlap period that ex-
isted between the day-shift mechanics who worked until
4:30 p.m., and the night-shift employees who came in at
2 p.m-8
8 The garage contained four lifts, which meant that between 2 and 4:30
p.m. there were six mechanics working in a shop laid out with four lifts
During that overlapping period of time, the two night shift mechanics
Continued
OLYMPIC LIMOUSINE SERVICE 935
According to Gutshall , when he took over as fleet
manager the volume of repair work to be done necessi-
tated a "full" second shift . The day mechanics . worked
mainly on urgent fast minor repair jobs, so as to get the
limousines back on the road . This meant that major
repair jobs were backing up, so he decided to have these
major jobs done on the second shift so that the night me-
chanics could work on them without interruption. I
credit Gutshall 's testimony , and I also credit Willey's ac-
count of his conversation with Gutshall , as Gutshall did
not contradict Willey 's in any manner.
Roger Passarella testified that the Corporation 's execu-
tive committee made a decision to institute a second shift
in late January , based on a recommendation of General
Manager James Murphy .9 When asked what was the
reason for the second shift , the president replied , "Well,
the thought was that there would be a greater utilization
of the space facilities that we had and as a result of that
more production would be coming from the service de-
partment."
The new schedule for the night shift was put into
effect within a week or a week-and-a-half after Gutshall
became the fleet manager, about mid -February . Willey
worked regularly Monday through Friday from 4 p.m.
to midnight with mechanic Bob Soderholm usually
working with him. Sometimes mechanic Charles Ogden
or Scott Willey worked with him during these hours, but
essentially it was a two-mechanic shift, consisting of
Willey and one other mechanic. Another mechanic,
Charles Atkinson, worked on the Sunday night shift. The
night shift was supervised sporadically by Gutshall, who
testified that he worked from 6 : 15 a.m . until 6:30 or 7
p.m., and part time by Winslow, who testified that he
worked from 8 a.m. to 7 or 7:30 p .m. Vice President Pas-
sarella was frequently present at night , as Gutshall testi-
fied "he's there more than he's not there.'
When Gutshall was promoted to fleet manager, me-
chanic Dennis Winslow was also promoted . Winslow's
testimony as to when and to what he was promoted was
a maze of inconsistency. On direct examination he testi-
fied that he was promoted to lead mechanic "around
March," and that he was subsequently promoted to
acting service manager . However , when asked what was
his position in February and March he replied that he
was the service manager. t o
On redirect examination, when asked when he was no-
tified that he was to become the acting service manager,
he replied that it was about "the second week in March,
third week in March." Winslow admittedly supervised
jobs to each shop employee. Willey testified without
contradiction that Winslow had a desk where he did
paper work and kept shop records, that Winslow as-
signed jobs to each mechanic ranging from a simple oil
had to work on cars parked on the floor in the passageway between the
lifts. If a day mechanic finished repairing a car on his lift and lowered it
to the floor, so as to put in on the lot, the night mechanic had to pull his
car out of the shop , let the repaired car out , and then pull his car back in,
and start working from the point where he had stopped. .
a Murphy, who was still employed by Respondent at the time of the
hearing, did not testify.
'a According to Gutshall , Winslow was appointed acting service man-
ager when Gutshall went into the hospital , which was March 25.
change to the change of a transmission. When
washer/fuelers were not busy , he would assign them to
such jobs as cleaning up the garage and bathroom. He
rarely did any mechanical work except on occasion he
would do a minor repair , such as the replacement of a
broken headlight when a driver would come in for such
emergency repair . Winslow also approved orders for
parts submitted by the parts man, who worked out of a
parts room situated in the shop . Winslow was on a salary
and was provided with a company car and free fuel. In
contrast, the mechanics and washer/fuelers were paid on
an hourly basis and punched a clock.
The record is clear that Winslow did have the author-
ity to assign work to service department employees
which required the use of independent judgment, and
that he regularly did make such assignments . In addition,
he enjoyed benefits not available to the rank-and-file em-
ployees, that are an indicia of supervisory status. I find
that Winslow was a supervisor within the meaning of
Section 2(11) of the Act commencing in mid-February,
when Gutshall was promoted to fleet manager, and he
was promoted to leadman . Valley West Welding Co., 265
NLRB 1597 , 1608 (1982); Big Rivers Electric Corp., 266
NLRB 380, 383 (1983).
On 14 March , approximately 1 month after the change
of the hours of the second shift, Gutshall sent a letter to
each of the shop employees . In this letter the fleet man-
ager evaluated the effects of his changes as follows:
Six weeks ago, I walked into the shop for the
first time as Fleet Manager . It's obvious that our
shop has been growing quickly , that's why Roger
and Russell asked me to assume the duties of Fleet
Manager.
We have had a record number of cars available
for our peak demands on Mondays and Fridays.
We managed to have to tow in only one car in a
thirteen day period.
In short, we are fixing cars and they are staying
fixed . These are concrete accomplishments and you
should be justly proud.
F. The Alleged 8(a)(1) Violations
1. Paragraph 8(a) of the complaint states as follows
(Respondent , acting through Harry Gutshall):
(a) On or about 20 March 1984 , at Respondent's
Farmingdale facility, threatened its employees with
more onerous working conditions if they selected
the Union as their bargaining representative.
In support of this allegation Willey testified that on a
Saturday morning, 17 March, Gutshall telephoned him at
his home, and asked him if he had had any problems
with the job he had been working on the night before.
The fleet manager stated that he did not think Willey
had done enough work in an 8 hour shift, and that he
had left parts scattered from one end of shop to the
other . Willey replied that he had had a problem, and did
not get a whole lot done, but denied that parts were
scattered from one end of the shop to the other. Gutshall
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then stated that he wanted to talk to him later about the
matter. -
Three days later, on 20 March, which was 3 days
before the representative election, Willey met with Gut-
shall in the personnel office, with Bob DeVito, the sales
manager, also present. Gutshall again told Willey that he
had left nuts and bolts scattered all over the shop, and
that the place was a mess . Willey replied that Gutshall
was wrong, that everything was neatly stacked together
like every other job he had done. Willey further told the
fleet manager that the only reason he was making these
accusations was because he was vocally supporting the
Union, and Gutshall was harassing him because of that
support. Gutshall replied that this was not harassment,
but "If the Union is voted on Friday, I'll follow you
around with a pen and pencil all day long." Willey then
told him that he should get his pen ready, because the
Union was going to win the election. The meeting con-
cluded on that note.
According to Gutshall, he had had a conversation
with Willey on, he thought, Tuesday, 21 March,1' in the
personnel office with the sales manager, DeVito,
present .12 Gutshall proceeded to tell Willey that he was
not satisfied with the job he had done on a Cadillac
Fleetwood, as he regarded it to have been done in a
sloven and haphazard manner, and that this criticism
constituted a warning. When asked what Willey said, he
replied that he "made some comments to the fact that
when the union got in things would be different." Gut-
shall testified that his reply was, "I said I hope not. You
have your job to do and I have my job to do." When
asked by Respondent's counsel if he told Willey that he
would follow him around with a pen and pad if the
Union won the election he replied, "I ... I don't remem-
ber exactly using those specific words."
Willey testified that on the following Thursday
evening, the day before the election, he was at the serv-
ice desk turning in a work order and picking up another
one, when he noticed a tape recorder on the desk. He
had never seen a tape recorder there before and he
pushed the play button. The recording started out "This
is Harry Gutshall" and proceeded to give the date and
time, and to state that he was making a recording of a
conversation with Kyle Willey. The recording then con-
tinued to play back the telephone conversation of Willey
and Gutshall of the previous Saturday.
Gutshall admitted that he had made a tape recording
of his Saturday conversation with Willey. When asked
why, he replied "For . . . So I could write a memo to
document this because we were running . . . we had
... we were documenting everything we did." The
record does not disclose that any other conversations
were tape recorded, or that the Respondent documented
any other matters pertaining to the election, the condi-
tion of the shop, or anything else.
I credit Willey's testimony and find that Gutshall did
state that if the Union won the election, he would follow
Willey around with a pen and pad all day long. The
record is clear that the fleet manager had never bothered
11 21 Maroh was a Wednesday.
12 Devito did not testify.
Willey before about the quality or quantity of his work,
until the seventh day before the election when he took
the unusual step of calling him at home. Then, in the
week of the election, he again berated him about his
work performance. It was at this point that Willey ac-
cused the fleet manager of harassing him. Gutshall, who
was admittedly angry, then shot back that if the Union
won the upcoming election, he would follow Willey
around with a pen and pad all day long. Certainly a
threat to check up on and write up every move a me-
chanic made all day long, when previously there was not
even close supervision, was a plain threat of more oner-
ous working conditions. I find, therefore, that Gutshall's
threat of 20 March constitutes a violation of Section
8(a)(1) of the Act. American Lumber Sales, 229 NLRB
414 (1977).
2. Paragraph 8(b) recites (Respondent, acting through
Harry Gutshall):
On or about 23 March 1984, at or near Respond-
ent's Farmingdale facility, interrogated its employ-
ees regarding their union sympathies.
In support of the allegation the General Counsel pro-
duced witness Anthony Auriano, the Respondent's tow
truck driver. Auriano testified that on the day of the
election he was instructed by Manager Gutshall to drive
him to a fire house to pick up some chairs and tables to
be used during the election. It was about 2 or 3 hours
before the election, and the trip in a fleet limousine took
at least a half-an-hour. When asked on direct examination
what Gutshall said to him and what he said to Gutshall,
he replied as follows:
A. Well mainly what we talked about-you
know, he was just going on and it came around to
where, you know, it seemed, to me he was trying to
find out-
Q. What did he say? What words did he use?
A. He asked me in direct words, "What do you
think the Union is going to do for you?" And I re-
plied, "I've been in Unions before and I know the
power of Unions. What exactly,it can do for us
now, I have no idea."
Q. What did he say?
A. He really didn't say much more after that. To
the best of my knowledge that I can remember.
The General Counsel's brief relies chiefly on answers
given by Auriano in re-direct examination:
Q. Okay. Can you tell us once again, exactly
what was said about the Union.
A. Well he really didn't say too much against the
Union. But if I can give my own opinion in my
mind what I, thought he was trying to do--
MR. SHANIN: I'll have to object.
JUDGE BRACKEN: Mr. Auriano, we don't expect
you to answer like a computer printout. The best
way you can recall, what was said.
Mr. Auriand, to the best of your recollection, try
to relate what Mr. Gutshall said to you.
OLYMPIC LIMOUSINE SERVICE
A. I believe he said , "What do you think the
Union can do for you that the company cannot do?
To work something out." That's the best I can re-
member what he said.
Q. Do you recall if he asked you if you were for
the Union.
MR. SHANIN : I believe he's leading his witness
now, Your Honor . I object. We've already asked
him what he recollects the conversation was. On
direct he said this was the one mention of the
Union . And now, I believe that counsel for the
General Counsel is leading his witness.
JUDGE BRACKEN : I'll allow this question. You
may answer it.
A. Can you repeat the question , please?
Q. Do you recall if Mr . Gutshall asked you if
you were for the Union?
A. Not in a direct sense . It was in a roundabout
way.
But I didn't give him a direct answer . Whether it
was a yes or a no.
Since Gutshall did not testify as to this incident, Aur-
iano's testimony is uncontradicted and I credit it. Apply-
ing the test set forth in Rossmore House , ' 3 of whether
under all of the circumstances the interrogation reason-
ably tended to restrain , coerce, or interfere with rights
guaranteed by the Act, I do not find that Gutshall's
question constituted a violation of Section 8(a)(1).
The two men happened to be in the same vehicle by
virtue of a bona fide need to , pick up chairs and tables to
be used in the election only 2 to 3 hours away . The su-
pervisor's inquiry was isolated, bland, and casual, and
was not followed up by Gutshall in any manner . Accord-
ingly, I shall recommend that the allegations of the com-
plaint be dismissed . Kohn Electric Co., 272 NLRB 815
(1984).
3. Paragraph 9 alleges : On or about 22 March, Re-
spondent , at its Farmingdale facility, by the use of a se-
curity guard created an impression among its employees
that their union activities were under surveillance by Re-
spondent.
Willey testified that on 22 March , in the afternoon
before the election, he was working in the shop. The
other mechanic scheduled for that night had called in
sick, and the only other employee present was a
washer/fueler . About 5:30 p.m., a man entered the shop,
and Willey described the ensuing events as follows:
I was working in the shop and I saw somebody
come in the door and I approached him and .I asked
him, "Can I help you?" And the man replied, "Yes.
I'm looking for Kyle Willey." And I said, "I'm
Kyle. What can I do for you?" And he said, "What
the hell did you do?" I said , "Why?" And he goes,
"I have to stay here until twelve and watch you
work." And then from there he just basically was
hanging out watching me work . He told me that his
name was Jack and the rest of the evening was just
basically small talk when he passed by.
18 269 NLRB 1176 (1984), enfd . sub nom . Hotel Employes Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985).
937
Willey subsequently • learned that his - name was Jack
Batey, and that he was an employee of Action Detective
Agency. The next. time Willey saw Batey was in the
afternoon of the day of the election on the Respondent's
parking lot . Batey told Willey to go to the front office
and wait there until the election was held . Willey was
the union observer at the election.
Roger Passarella testified that he owned and was presi-
dent of the Action Detective Agency, and that it sup-
plied uniformed security guards to various employers. It
had previously supplied guards on a temporary basis at
the Respondent 's facility , when the Respondent had had
a theft problem . When asked why Captain Batey was 'at
Olympic Limousine that night of 22 March, Passarella
responded:
A. Well, I think the guards had been working for
several weeks at Olympic Limousine Service and
that was one of the nights that-that guard person-
nel were scheduled and he just happened to be the
person that was scheduled . I did not personally
schedule him there.
Q. And why-why were guards being utilized at
that point at Olympic Limousine?
A. Because during this period we had a number
of-an increased number of thefts from both within
the parts room and from the vehicles that were
parked in the parking lot. And I-I know we had a
number of televisions sometime in this-at this-
during this period that disappeared that are within
the vehicles.
Q. And how many vehicles approximately are
parked in your lot at night?
A. Including employee cars, approximately two
hundred.
Batey, who was admittedly an agent of the Respond-
ent, did not testify , and I credit Willey's testimony. As to
Passarella, I found him to be an evasive witness, and I
find his testimony as to why the guard was present in the
service department on 22 March, to be incredible. His
testimony that the Company had experienced an in-
creased number of thefts from both the parts room and
from vehicles parked on the lot was not 'supported by
any inhouse records, nor had there been any reports of
theft to the local police department . The only 'specific
items he claimed had been stolen were televisions that
had been in the cars parked on the Company 's lot. Yet,
instead of placing Batey on the parking lot so that he
could watch approximately 200 cars, Batey spent the
night shift in the garage watching a single employee,
Willey.
The guard's observance -of Willey is all the more in-
credible since the record shows that for many months
prior to the election, the Respondent had a TV camera
trained on the parts room door, and partially on the first
and second lift. This TV picture was reproduced on the
screen in the dispatcher 's office. Yet, as set forth in Wil-
ley's testimony , in the week of the election, at 4 p.m.
each afternoon, this same camera was changed from
training on the parts room door , to training on Willey. A
porter would manually adjust the TV camera, while
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Winslow would direct him how to move it so as to make
it focus on Willey . 14 According to Winslow, the camera
was only focused on Willey's lift on one evening , start-
ing at 7 . p.m., and was done for "supervision reasons." I
credit Willey's testimony , and find Winslow 's explanation
of why the camera was trained on Willey to be incredi-
ble.
Respondent offered no reasonable or practical reason
why it had a guard watch Willey work that evening, just
prior to the election , but in fact, offered a ludicrous one.
The import of Batey's words to Willey under the cir-
cumstances was clear . Respondent was letting Willey
know that it was watching him closely and that it was
acutely aware of his union organizational activities. In
these circumstances, I conclude and find that Batey's
words to Willey created the impression that Respondent
was engaged in surveillance of Willey's and his fellow
employees ' union activities , and the Respondent thereby
violated Section 8(a)(1) of the Act. Supermarkets General
Corp., 260 NLRB 167 (1982); J. P. Stevens & Co., 245
NLRB 198 (1979).
In the last few weeks before the election , Winslow
began to harass Willey in various ways . He assigned to
Willey many more difficult jobs than he had normally
been assigned, such as working on Cadillac computer
problems, when the shop did not have the equipment or
books to trace out such problems . In addition he picked
an argument with Willey, seeking to cause a confronta-
tion. Willey had been working on a car when he noticed
Winslow standing behind him , and watching him for sev-
eral minutes . Willey then asked, "[W]hat are you wor-
ried about? Just because I support the Union doesn't
mean I forgot how to do my job. You don't have to
stand here and watch me." Winslow replied that he did
not have to worry, that Willey was the one who had to
worry, because he "may not have a job after this is all
over." Willey replied that he did not have to worry as
there were laws that would protect him for supporting a
union. At this point Winslow became angry , and started
to call Willey a "Pussy," very loudly in front of several
other mechanics . Willey walked away in order to avoid
a fight, while Winslow repeatedly shouted that Willey
was a "Pussy."15
G. The Discontinuance of the Second Shift
On the afternoon of Monday, 26 March, the third day
after the election, Willey reported to work for the night
shift. Winslow was at his service desk, and he informed
Willey that he was wanted at the personnel office. Wins-
low led the way, and Willey followed him to the office
where Personnel Manager Bole met them . At this point
Bole informed Willey that the Respondent was going to
cancel the night shift, effective that day , due to "reasons
14 The Respondent in 1983 had installed six closed unit TV cameras at
its facility. Three were trained on the parking lot, one on the entrance of
the building, one on the car wash bay, and one on the parts room door.
As testified to by Passarella , the TV cameras were used primarily as a
deterrent system, as no pictures were recorded . Dispatchers who are ad-
mittedly very busy, look at the cameras on a casual basis . They have
never reported that they detected any thefts since the installation of the
cameras.
15 1 credit Willey's testimony which was essentially uncontradicted.
of economic feasibility," according to Willey. This was
the first knowledge that Willey had that the second shift
was to be discontinued or, as far as the record shows,
any nonmanagement employee . Willey testified as fol-
lows:
At that, I responded that that is directly retaliatory
to my being involved with the Union. And that it is
pretty tough for me to believe that putting two shift
of mechanics , which would total about seven me-
chanics into a four-lift work area , is economically
feasible . And with that he told me that's not my de-
cision to make and regardless of what I think, the
night shift is cancelled as of today. And, he told me
that if I wanted to, I could work the 8 :00 a.m. to
4:30 p.m. shift.
• To that I told him, you know that obviously is
no good for me because you know that I've been
going to school the entire time that I've worked
here . I can't work that shift.
Bole told Willey to think about it, and let him know.
On the following morning , Willey returned to the shop,
and worked from 8 a .m. until 4:30 p.m. as Tuesday was
his day off at school in the new semester . That day
Willey went to the personnel director's office and told
him that he still could not work days, and unless Bole
changed his mind "I'm not working here any more, I
guess, " and emphasized that he was not quitting , that he
was being forced out of his job. Willey further informed
him that he was going to file an unfair labor practice
against the Company and that they would be hearing
from him . Bole replied, "Good. Fine," and the conversa-
tion ended . Willey did not return again to work for the
Respondent, and had continued as a full-time student at
DeVries Technical Institute.
Discussion and Conclusions
In applying the teachings of Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), I find that
the General Counsel had sustained his burden of estab-
lishing a prima facie case that the union activities of
Willey motivated Respondent 's decision to constructive-
ly discharge him.
Respondent knew well that Willey was the union
spearhead. In fact, in Respondent 's brief, it is readily ad-
mitted that Willey volunteered to other service depart-
ment employees that he would try to get a Union to rep-
resent the employees, that Willey organized union meet-
ings at his apartment and elsewhere, that he distributed
union authorization cards to other employees, that he at-
tended the preelection conference at the Board , that he
drafted and posted union campaign literature, and served
as the union observer at the Board election on 23 March.
Respondent's union animus is clearly shown by its illegal
acts of interrogation and impression of surveillance as
previously set forth. Also President Passarella and Per-
sonnel Director Bole admitted that they did not want the
Company's employees to be represented by a union.
Willey was obviously a skilled and valuable mechanic.
He was competent enough that the Company allowed
OLYMPIC LIMOUSINE SERVICE 939
him to work from 1 November 1983 until mid-February
without supervision on the last 3 hours of his shift, and
also to work without supervision on the last 5 hours of
his shift on 15 February to 26 March. Also, he was ap-
pointed lead mechanic during the hours no supervisor
was present . The record also shows that it allowed its
mechanics a great flexibility in setting their hours of
work as witnessed by allowing Willey to work in No-
vember 2 to 10:30 p .m., then 4:30 p .m. to midnight, and
allowing Atkinson to work only on Sunday nights. It is
also to be noted that Willey's pay was raised from $5 an
hour to $8 an hour at some point in the 6 months he
worked for the Respondent.
Yet, despite the fact that the Company 's 200 car fleet
operated 24 hours a day, 7 days a week, and despite the
Company's past practice of being very flexible about the
night hours it allowed its mechanics to work , and despite
Willey's skill and willingness to work nights he is noti-
fied on Monday afternoon , by the personnel director as
he reported for work, that the second shift has been dis-
continued as of that day and that he can only work in
the future on the day shift . Bole knew that Willey went
to school in the daytime , and that he needed an evening
shift job in order to be able to continue to go to school.
Willey was not deceived by the personnel manager's
statement, and informed him that Bole knew he was
going to school , and that he could not work the day
shift . On the following day Willey again told Bole that
he could not work days , that he was being forced out of
his job.
As stated in K & S Circuits, 255 NLRB 1270 (1981):
"To establish a constructive discharge , it must be proven
that the burdens upon the employee must cause, and
must be intended to cause , a change in working condi-
tions, so difficult or unpleasant as to force him to resign.
It must also be shown that these burdens were imposed
because of the employees' union activities ." The record
in this case amply meets these two tests. Willey was a
dedicated day school student of the DeVries Institute
and Respondent well knew this , and compensated for it
prior to the entrance of the Union . Willey's Union activi-
ties were anathema to the Respondent, and after losing
the Union election on 23 March it decided to force him
to quit by abolishing the night shift, and compelling him
to work the day shift.
I turn now to the reasons offered by the Respondent
for the cessation of the second shift, and for its explana-
tion of when the decision was made to do so.
1. Gutshall
On direct examination, Gutshall, when asked how long
the second shift lasted, responded as follows: "I had to
go into the hospital for surgery on March 25th . 1° It was
deemed just before I left to stop the second shift because
of just shortage of Personnel."
1e Gutshall was to have surgery performed when it could be scheduled
at an available date . As he testified, approximately 2-1/2 weeks before 25
March, he knew that he would enter the hospital for the surgery on 25
March. He had informed his supervisors at Respondent's of this planned
surgery.
On cross-examination Gutshall testified that the deci-
sion to terminate the night shift was made within the
week before he entered the hospital. When asked if it
was made prior to 24 March, he replied, "Somewhere
right in that area ." On being pressed further, he testified,
"I'm saying the decision was made to the best of my
knowledge that Saturday." t 7
Then, when asked why he recommended that the
second shift be discontinued, he testified, "Number one,
shortage of personnel , Number two, there was no super-
vision directly or available supervision." In a rambling
manner he explained that Winslow was going to take
over his job as supervisor of the service department, and
as such he would not be "turning wrenches ," but would
be "coming off the floor." This meant . that Winslow's lift
was vacant, and that the Respondent then had space to
put another "experienced" mechanic to work on the day
shift.
When asked if the second shift met the Respondent's
productivity requirements , Gutshall testified that it did
not because, (1) the Company could not put in it the re-
quired supervision and (2) the work was not getting out.
Also, they had problems with the work, and they were
not satisfied with it . Gutshall could only remember one
specific incident of alleged poor work, and that was on
the replacement of head gaskets on a Cadillac limousine
by Willey.'8
This criticism of Willey was in sharp contrast to Gut-
shall's explanation of how he planned to alleviate the
shortage of personnel : "We needed that other mechanic
that was working full-time nights days when everybody
else was working at this point 'cause we then had the
space to do it 'cause Dennis was coming off the floor.
We needed the ... we needed the experience." The
other mechanic that Gutshall was referring to who he
needed so badly was obviously Willey.
2. Roger Passarella
According to President Passarella, General Manager
James Murphy had first suggested having a second shift
in December 1983. Then, in late January , the decision to
institute a second shift was made by the Company's exec-
utive committee. t 9 When asked why a second shift was
commenced, the president stated:
Well, the thought was that there would be greater
utilization of the space facilities that we had and as
a result of that more production would be coming
from the service department.
The president also testified that a decision was made
to discontinue the second shift in early March, which
was 2 or 3 weeks after it had commenced operating.
When asked why this decision was made, he stated that
" That Saturday was 24 March.
la The conference between Gutshall about Willey and this job, as well
as Gutshall's claim that Willey had left nuts and bolts all over the shop, is
discussed in III, F,1 above.
19 The executive committee consisted of himself, his brother Russell
Paasarella ; Murphy; Gary Beno, the controller; and Personnel Director
Erik Bole. If this committee kept minutes , the record does not so dis-
close.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was for business reasons, that the Company "never
really had the ability or the facilities or the capacities to
manage or handle or operate a second • shift at all and it
did not work out." He further testified that the decision
to discontinue the second shift was not implemented
until after the election on the advice of their labor con-
sultant, so that it would not be a disruption to the elec-
tion.
3. Erik Bole
Bole, who had been hired on 16 January as Respond-
ent's personnel and safety director , when asked on direct
examination why the second shift was instituted, testified
that "Basically, it was a request by Harry Gutshall to the
committee to see if perhaps we could get better produc-
tivity in the shop area ." He further testified that the deci-
sion to discontinue it was made in the week of 5 March
by the executive committee, after Gutshall had offered
his opinion . When asked why the second shift was dis-
continued, he replied as follows:
Many reasons . I'd say, number one, lack of super-
vision . Knowing that Harry Gutshall would be
going into the hospital , and Dennis would be assum-
ing his responsibilities that it would create a void in
that shift of supervision . Secondly, lack of person-
nel. When you consider that Dennis Winslow
would move up to an acting position as fleet man-
ager there was a void . Jim Turner would-rose to
the position of lead mechanic and he would be
doing the lead mechanic's job as well, so let's call it
one and a half positions were vacant, open, day
shift, and it just made sense that on short notice I
would pull people from the night shift to the day
shift as I cannot hire people in a week 's notice.
Bole then added a third reason , thefts from the parts
room, and thefts from vehicles , and that parts would be
taken from the parts room and used but no record would
be made, making it difficult to maintain an accurate ac-
counting.
As to the date when the decision to discontinue the
second shift was made, I credit Gutshall's testimony.
Passarella's testimony that it was made in early March
and Bole's that it was made in the week of 5 March were
vague compared to Gutshall 's specific testimony that it
was made the Saturday before he entered the hospital, 24
March . Certainly , such an important event in Gutshall's
life gave him a firm anchor on which to base his answer.
I also do not credit Bole's date of the week of 5 March,
as he contradicted himself. In his claim of a lack of per-
sonnel, he testified that to fill a vacant position on the
day shift "it just made sense that on short notice I would
pull people from the night shift to the day shift as I
cannot hire in a week's notice." Patently, if he had been
notified in the week of 5 March of the termination of the
shift, he would have had approximately 3 weeks to hire
additional mechanics, not I week.
I also find that Respondent 's reasons why it discontin-
ued the second shift do not stand scrutiny. The reasons
offered by Gutshall , shortage of personnel and no avail-
able supervisor , parallel, in reverse order, Bole's reasons
of lack of supervision and lack of personnel.20
The claim of a shortage of personnel is not supported
by the record. When Gutshall entered the hospital there
remained 12 employees to do physical work in the serv-
ice department instead of 13, as Winslow did become a
full-time supervisor . But Winslow had not been regularly
working on a lift prior to that date, so the four mechan-
ics who regularly worked on the lifts on the day shift
were still available to continue working on these lifts.
But despite the fact that all four lifts , on 26 March, were
manned by the same mechanics who worked off of them
in the prior week, Soderholm was transferred to the day
shift, and Willey was offered a job on the day shift.21
This would have meant that at least six mechanics would
be working in a four-bay area containing four lifts, and
would result in the same space problems that had existed
before Gutshall put the 4 p.m. to midnight shift into
effect. Instead of just having an overlap of mechanics for
2-1/2 hours , there now would be, in effect, an overlap of
8 hours a day , as the six mechanics would be working in
an area laid out for four mechanics . This, of course,
meant that cars would be worked on while parked in the
passageway between the lifts, thereby blocking the re-
moval of repaired cars to the parking lot, as well as the
entrance of cars to be placed on the lifts.
The cessation of the second shift was contrary to all
the reasons management had given for instituting that
shift in mid-February. With its cessation, the Company
could no longer let the major jobs be done at night so
that the mechanics could work on them without inter-
ruption . With all the mechanics working on the day
shift, major jobs would again be interrupted by the fast
repair jobs that had top priority, so as to keep the limou-
sine on the road to accomplish its mission of hauling pas-
sengers. According to Gutshall, the volume of work ne-
cessitated a "full" second shift . a a There was no claim by
Respondent that the volume of work slackened off at
any time after the institution of the second shift.
Placing two night-shift mechanics on the day shift was
also a contradiction of President Passarella 's reason for
instituting the second shift. There would no longer be a
greater utilization of space facilities, but the shop would,
in fact, be totally abandoned during the hours of 4 p.m.
to midnight.
As to Bole's claim that the second shift was put in to
see if more productivity could be obtained from the
shop, the Respondent offered no records whatsoever that
productivity decreased during the time of the "full"
ae Bole's third reason of theft from parts room and vehicles was not
supported by the record , was not offered by Gutshall or Passarella, and
need not be addressed.
" Willey testified that if he had accepted Bole's offer there would
have been seven mechanics to work in the four-lift area. The record does
not disclose the name of this seventh employee, as various personnel
were only identified as Rick , Tom, Tony, and Robert Long , without stat-
ing their specific specialty . Kevin Lombard was identified as a front-end
mechanic, and Joe as a bodyman.
Ea Gutshall did not define what he meant by a full second shift. The
record discloses that after mid-February the second shift usually consist-
ed of Willey and Soderholm , or at times, some other mechanic in place
of Soderholm.
OLYMPIC LIMOUSINE SERVICE 941
second shift , but in fact admitted that it had no such
records.
Finally , we have Gutshall 's letter of 14 March to each
employee in which he set forth that the service depart-
ment was working well since he took over in February.
As the service manager pointed out, the mechanics had a
"record number of cars available for peak demands," and
"they were fixing cars , and they were staying fixed."
Clearly, this letter of the fleet manager sets forth that the
overall production of the mechanics , day shift and night
shift, was not just at a satisfactory level, but was at a
commendable level.
I further find that the Respondent had not successfully
rebutted the General Counsel 's prima facie case. Re-
spondent's various defenses that it discontinued the
second shift because of a lack of supervision , a shortage
of personnel , no increase in productivity , and thefts of
parts, do not stand scrutiny as set forth above . The night
shift allowed Respondent to more fully utilize its shop's
facilities, and allowed Respondent to adhere to its goal
of performing minor repair jobs during the day so that
its vehicles could get back on the road, while major
repair jobs were done at night without interruption.
Willey was a skilled mechanic whose work was never
criticized prior to the advent of the Union and his open
activism . He was the keystone of Respondent 's night
shift for 6 months, and worked without supervision for a
major portion of his evening hours , both before and after
Respondent instituted the 4 p.m. to midnight shift. I
therefore find that Respondent's termination of the night
shift imposed a burden on Willey that made it impossible
for him to continue going to day school , and that the
purpose of the termination of the night shift was to
compel Willey to quit, and rid Respondent of the union
activist, as well as to show the other employees its
power over their jobs, and thereby discourage them from
engaging in union activities. I therefore find that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
constructively discharging Kyle Willey because he en-
gaged in union activity.
H. The Objection to the Election
In accordance with directions contained in the order
consolidating cases , I now turn to Objection 1 contained
in Case 22-RC-9155. This objection reads as follows:
That an individual by the name of Kyle Willey,
who is employed by the Employer herein during
the time prior to, and during and after the election,
while acting in behalf of Local 56 of the United
Food and Commercial Workers Union , did wrong-
fully and illegally influence the results of the elec-
tion by physically threatening certain employees if
they did not vote for the Union.
In support of this allegation, the Employer offered the
testimony of one witness , Dennis Winslow . On direct ex-
amination Winslow testified that on an afternoon about a
week or two before the 23 March election he had a con-
versation with Willey while standing around the lifts and
the toolboxes in the bay area . When Willey asked him
where he stood on the election , Winslow informed him
that he stood with the Company. Willey then asked him
why he was hurting his fellow employees, and Winslow
stated he was not trying to hurt them, he just felt that
the Company should not have a union. Willey then
stepped away from his toolbox for a minute and Wins-
low further testified, "I was coming back to the toolbox
and he said to me if I got in his way that he would
punch my lights out."
On cross-examination Winslow testified that the con-
versation took place approximately 2 or 3 weeks before
the election, as he was going back and forth to his tool-
box. Willey was working on a car on a lift that was in
front of Winslow's toolbox, and Winslow was working
on a car on a lift that was in front of Willey's toolbox.24
According to Winslow there was the original conversa-
tion in which the Union was discussed as set forth above,
and then there was an interval when he went to his tool-
box and then when he stepped away, "our paths crossed
again." At this.point Willey said, "If you get in my way,
I'll punch your lights out." Willey's voice was fairly
mellow until he made the statement about punching his
lights out and, "Then he got right in my face."
When asked what he took Willey to mean when he
said "get in your way," Winslow testified, "I assumed he
meant that if I disrupted his Union organizing." Winslow
mentioned this conversation to mechanics Lombard and
Toner on the next day, and stated, "We both kind of
laughed a little," as he considered it a joke. On the same
morning, Winslow also reported the conversation to
Gutshall and General Manager Murphy. Winslow and
Wilson were admittedly not friends and did not get
along before the organizing campaign.
Willey readily admitted that he had a conversation
with Winslow about the Union, and he was suprised that
Winslow had attended a union meeting, as he doubted
that Winslow supported the Union. Willey testified that
he had asked him if he was going to vote for the Union,
and that Winslow replied that he had attended the meet-
ing, but he was not supporting the Union, as he felt it
was best for the Company not to have a union. Willey
then stated that he thought a union was the best thing
for employees, and he could recall no response from
Winslow, testifying that the conversation then terminat-
ed. Willey flatly denied that he threatened to punch
Winslow's light out in this conversation or that he ever
so threatened.
Willey was never approached by any member of man-
agement about Winslow's claim that he had threatened
to punch Winslow's eyes out, and only learned of such a
claim after the Company filed its objections to the result
of the election.
As previously set forth, I do not find Winslow to be a
credible witness, and I do not credit his testimony that
Willey told him that if he got in his way, Willey would
punch his lights out. Willey's recollection of the date of
the conversation in which he questioned Winslow as to
how he was going to vote was much more accurate than
Winslow, as Willey placed it in the week of the election,
whereas Winslow first placed it as occurring about a
84 Each mechanic's toolbox is lined up against the wall, whereas the
lifts are lined up in the bays away from the wall.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week or two before the election, and then on cross-ex-
amination placed it in early March, 2 or 3 weeks before
the election. Since the conversation occurred. after the
fourth and last union meeting, which took place at the
Asbury Court Motel on the Saturday before the election,
17 March, it could not have occurred 2 or 3 weeks
before the election.
I therefore conclude on the basis of the foregoing that
Willey did not physically threaten employees if they did
not vote for, the Union, and that the Respondent has
failed in its burden to establish that the Union, or its
agent, has engaged in objectionable conduct to warrant
setting the election aside. I recommend that the Union be
certified as the exclusive collective-bargaining represent-
ative of Respondent's employees in the unit set forth in
Case 22-RC-9155, in accordance with the results of the
election conducted on 23 March 1984.
I. Refusal to bargain
The Union's business representative, Charles Volk, tes-
tified that approximately 2 weeks after the election, he
contacted Respondent's labor relations consultant Frank
Campion and stated that since the election was over, it
might be to the benefit of both the Union and Company
to sit down and begin discussing a contract . Approxi-
mately a week to 10 days later, Campion telephoned
Volk and informed the union official that the Respond-
ent was not interested in meeting with the Union. Since
that call Volk has not spoken to Campion or to anyone
representing the Respondent.
Campion did not testify, and Volk's testimony remains
uncontradicted and I credit it. Thus the evidence shows
that Respondent terminated the second shift 3 days after
the election was won by the Union, and that it terminat-
ed it so to cause Willey to quit. As previously set forth,
Respondent 's asserted business reasons for discontinuing
the second shift were pretexts for the real reason, the
elimination of the Union spearhead.
I therefore find that this discontinuance of the second
shift constituted a change in working conditions, and
that the Respondent was obligated to give notice to, and
bargain with, the Union before it effectuated its discon-
tinuance. In view of Respondent's failure to offer to bar-
gain over this planned discontinuance and its effect on its
employees, I find that Respondent violated Section
8(a)(5) and (1) of the Act. NLRB P. Katz, 369 U.S. 736
(1962); Clements Wire & Mfg. Co., 257 NLRB 1058
(1981); Felbro Inc., 274 NLRB 1268 (1985).
J. Willey's Right to Reinstatement25
On approximately 24 April, Willey and his roommate
Michael Langan ' Were driving to Freehold Raceway in
25 During the course of the hearing counsel for the Respondent sought
to introduce into the record evidence pertaining to an altercation that
took place between Willey and Winslow in late April, approximately 1
month after the cessation of Willey's employment with the Company,
The General Counsel objected to the admission of this testimony on the
grounds that the evidence was not relevant to this proceeding , and that it
would be more properly considered in the compliance proceeding. The
Respondent argued that this testimony was relevant as it concerned part
of the remedy sought by the General Counsel, the reinstatement of
the afternoon. As they passed Respondent's facility,
Willey recalled that, although he had previously picked
up his toolbox, he had left a radio in the shop. Willey
stopped his car, got out, while Langan remained in it.26
Willey testified that as he walked towards the garage
door, he noticed Winslow in the center of the shop, 'and
he saw that Winslow was walking towards him. Willey
then testified as follows:
And, when I got to the door, Dennis started
with-the first thing he said to me was, "What the
hell are you doing here?" Like that. Followed by,
"You don't work in here anymore. Now get the
fuck out of here." While I walked further into the
shop, he continued the same type of attitude.
Q. Well, what was he yelling?
A. Insults such as that. Calling me-"You don't
belong here. Get out- of here, asshole." Stuff like
that. The entire time I was in there.
Q. Can you recall anything else he was saying to
you?
A. Well I answered him first when he told me-
when he asked me what I was doing here. I an-
swered that I had just come to get my radio.
Willey further testified that while he walked about 40
feet into the shop Winslow kept yelling at him, telling
him that he did not belong in there, to get out. When
asked if he retrieved his radio, Willey replied:
A. I got the radio and I proceeded back out the
door while he was still yelling at me, to which I did
not say a word.
Q. What was he yelling at you at this point?
A. The same thing, "To get the hell out of here.
Get out of here. You -don't belong here." With a
few profanities thrown in there.
Q. What were the profanities?
A. "Get the fuck out of here. You don't belong
here." Things like that. That nature.
Q. Where was he standing in relation to you?
A. Within one foot of my face the entire time.
Willey continued towards the garage door and on seeing
mechanic Chuck Ogden, stopped and asked if the Board
agent had talked to him yet, as' the agent had been trying
to get hold of him. Winslow turned and started scream-
ing at Ogden that he was not to talk to Willey and then
turned again to Willey screaming "Get the hell out of
here." At this point Willey testified:
I grabbed his shirt and I looked at him and I said,
"I don't work here. I don't want to work here. I
have nothing to do with this place. Now just leave
me the hell alone." I released him and walked out
with my radio and left the property.
Willey. I overruled the General Counsel's objection, and affirm that
ruling herein.
26 Willey's testimony that he had seen various other nonemployees
come into the shop during working hours without any managerial objec-
tion, was undisputed , and I credit it.
OLYMPIC LIMOUSINE SERVICE 943
Winslow testified that he saw Willey come through
the front door and "I approached him and I stopped him
and I asked him what he wanted . He said he wanted his
radio , so I allowed him to go ." Winslow did not testify
as to Willey's testimony that he called him foul names,
and as to Willey's charge that he screamed at Willey
while standing within 1 foot of his face , so Willey's testi-
mony as to these events is uncontradicted and I credit it.
Willey and Winslow were both rugged looking muscular
young men . While Willey was 5 feet 11 inches tall and
weighed 165 pounds, Winslow was 5 feet 6 inches tall
and weighed 165-170 pounds.
Winslow subsequently filed criminal charges of "as-
sault" against Willey in the local municipal court. Willey
pleaded guilty to the charge of disorderly conduct,27
and explained his reasons as follows:
Dennis appeared at the Courtroom. And at that
point I knew that I had grabbed his shirt and that
was technically guilty of the offense that I was
charged with . I didn 't see any point in getting a
lawyer. I figured that would cost me more than the
fine would be. Because when I had been called
down to the Police station by the sergeant to talk
about the offense that occurred . He told me that the
normal fee for such an incident is like $75 and $25
cost to the Court. So I figured I would just plead
guilty and get it over with.
Respondent contends in its brief that Willey is not en-
titled to reinstatement because of his "admitted criminal
assault of Acting Service Manager Winslow in April
1984,"
However , I find that Willey should be reinstated to
employment with the Respondent, based on the follow-
ing factors . The first is that he has been unlawfully dis-
charged following his open and admitted activity on
behalf of the Union in its organizing campaign . Second,
his grabbing of Winslow's shirt was spontaneous and not
planned beforehand , such as when a striker arms himself'
with a club or a weapon and proceeds to the picket line,
ready to engage in combat .28 Third, his action was pro-
voked by Winslow 's screaming of insulting profanities at
him. Fourth, Winslow , by his own conduct placed him-
self in Willey's path and put his body within 1 foot of
Willey's blocking his egress . Fifth , Respondent had al-
lowed other nonemployees to come and go in the shop
without any screaming or' profanities being heaped on
them, and without blocking their path . It must be re-
membered that at this time , according to Respondent's
theory, Willey was merely a former employee who had
quit, and not some stranger who should be shouted off
the premises . Sixth, Willey's conduct was not vicious or
grossly wrong, as he did not strike, slap, or fight with
Winslow. In E. I. duPont & Co., 263 NLRB 159 (1982), a
supervisor had harassed an employee because of his-
'7 No court records were introduced into evidence so as to show the
precise charge, and I regard both witnesses' terms as colloquial expres-
sions. However, it is well settled that matters raised in state criminal pro-
ceedings do not dispose of the separate and distinct issues raised under
the Act . [Catalytic, 275 NLRB 97 (1985).]
28 See Clear Pine Mouldings , 268 NLRB 1044 (1984).
prounion attitude . On the day in question, standing face-
to-face, inches apart , the supervisor told the employee to
quit hollering , to which the employee replied that he
would scream anytime or place . As found by the Board,
the employee pushed the supervisor away by placing his
hand on the supervisor 's chest . The employee then told
his supervisor that if he were not an old man, he would
"stomp his goddamn ass in the floor ." The employee
then asked the supervisor if he wanted to fight , and the
supervisor left. As is evident , the conduct of the employ-
ee in E I. duPont, supra, above , was far more egregious
than of Willey, yet the Board upheld his reinstatement.
As stated in NLRB v. M. & B. Hardware Co., 349 F.2d
170, 174 (4th Cir. 1965), "[a]n employer cannot provoke
an employee to the point where [the employee] commits
... an indiscretion ... and then rely on this to termi-
nate [the] employment." Respondent , by Gutshall's and
Winslow's action late in the March campaign , harassed
Willey with more difficult jobs; with criticism , with vile
name calling , with putting him in the spotlight of a TV
camera, and by placing a uniformed guard to hover over
him. Then , when Willey returned to the shop for the le-
gitimate act of reclaiming his radio , Winslow immediate-
ly picked up the harassment with his screaming of vile
names at Willey. To allow the Respondent to succeed in
preventing the reinstatement of Willey because he spon-
taneously responded to its supervisor's harassment by
simply grabbing his shirt, would be to reward the Em-
ployer for its own wrongdoing and defeat the purposes
of the Act. I therefore find that Willey's conduct was
not grossly wrong or vicious, and that under all the cir-
cumstances , Willey has not forfeited his right to be rein-
stated . Louisiana Council No. 17, AFSCME , 250 NLRB
880 (1980); McAllen Coca-Cola Bottling Co., 258 NLRB
789 (1981).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following unit is appropriate for the purposes
of collective bargaining:
All full time and regular part time mechanics and
lead mechanics, car washers/fuelers, body shop
helpers, tow truck drivers and maintenance employ-
ees employed by the Employer at its Farmingdale,
New Jersey location.
4. At all times since 23 March 1984 the Union has
been the exclusive collective -bargaining representative of
the employees in the unit described above.
5. Since on or about 6 April 1984, and continuing
thereafter, Respondent Olympic Limousine Service, Inc.
has failed and refused to bargain collectively in good
faith concerning wages and other terms and conditions
of employment of the employees in the unit described
above in violation of Section 8(a)(5) of the Act.
6. Respondent violated Section 8(a)(1) of .the. Act by
threatening its employees with more, onerous working
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions if they selected the Union as their bargaining
representative; and by creating an impression among its
employees that their union activities were under surveil-
lance.
7. Respondent , on 26 March 1984, unlawfully discon-
tinued the operation of its second shift in violation of
Section 8(a)(5), (3), and (1) of the Act.
8. Respondent, on 26 and 27 March 1984, by construc-
tively discharging Kyle Willey to discourage him and
other employees from engaging in concerted activities
for the purpose of collective bargaining or other mutual
aid or protection , has engaged in unfair labor practices
and has violated Section 8(a)(3) and (1) of the Act.
9. Respondent has not violated the Act by Gutshall's
interrogation of Anthony Auriano on 23 March 1984.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
'The Respondent 's having unlawfully constructively
discharged Kyle Willey on 26 and 27 March 1984, 1 find
it necessary to order it to offer him reinstatement and
make him whole for loss earnings and other benefits,
computed on a quarterly basis from date of discharge to
date of proper offer of reinstatement , less any net interim
earnings, in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest , as computed in Florida
Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962).
Respondent , having unlawfully terminated the second
shift of its shop employees , shall be required to reestab-
lish the second shift as it was before the Respondent en-
gaged in these unfair labor practices , and to offer to
Kyle Willey reinstatement to that shift . There is no
showing that the restoration of this shift will cause any
undue hardship on the Respondent , as the same shop,
lifts, and equipment that are used on the day shift are
available for use on the second shift. Also, the record is
devoid of any evidence that the Respondent is experienc-
ing any financial difficulties . The resumption of this shift
will clearly effectuate the policies of the Act. Rebel Coal
Co., 259 NLRB 258 (1981 ); Sunflower Novelty Bags, 225
NLRB 1331 (1976).
On these findings of fact and . conclusions of law and
on the entire record , I issue the following recommend-
edaa
ORDER
The Respondent , Olympic Limousine Service, Inc.,
Farmingdale, New Jersey, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
°B If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
(a) Threatening their employees with more onerous
working conditions if they selected the Union as their
bargaining representative.
(b) Creating an impression among its employees that
their union activities were under surveillance.
(c) Discharging or otherwise discriminating against
any employee for supporting Local 56, United Food and
Commercial Workers Union, AFL-CIO or any other
union.
(d) Refusing to bargain collectively in good faith with
Local 56, United Food and Commercial Workers Union,
AFL-CIO as the exclusive collective -bargaining repre-
sentative of the employees in the following appropriate
unit:
All full time and regular part time mechanics and
lead mechanics, car washers/fuelers, body shop
helpers, tow truck drivers and maintenance employ-
ees employed by the Employer at its Farmingdale,
New Jersey location.
(e) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) On request , bargain with the Union as the ' exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and , if an understanding is reached , embody the un-
derstanding in a signed agreement:
All full time and regular part time mechanics and
lead mechanics, car washers/fuelers, body shop
helpers , tow truck drivers and maintenance employ-
ees employed by the Employer at its Farmingdale,
New Jersey location.
(b) Offer Kyle Willey immediate and full reinstatement
to his former job or, it that job no longer exists, to a sub-
stantially equivalent position , without prejudice to his se-
niority or any other rights or privileges previously en-
joyed, and make him 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 sec-
tion of the decision.
(c) Reopen and reestablish the second shift in its shop.
(d) Remove from its files any reference to the unlaw-
ful discharge and notify the employee in writing that this
has been done and , that the discharge will not be used
against him in any way.
(e) Preserve and , on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its shop in Farmingdale, New Jersey, copies
of the attached notice marked "Appendix."90 Copies of
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the 80 In accordance with our decision in New Horizons for the Retarded,
Board and all objections to them shall be deemed waived for all per. 283 NLRB No . 181 (May 28 , 1987), interest on and after 1 January 1987
poses . Continued
OLYMPIC LIMOUSINE SERVICE
the notice, on forms provided by the Regional Director
for Region 22, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent 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 Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(g) It is recommended that Objection 1 submitted by
the Employer in Case 22-RC-9155 shall be overruled,
and that the Union be certified as the exclusive collec-
tive-bargaining representative of the Respondent's em-
ployees for the unit found appropriate in such case.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
shall be computed at the "short -term Federal rate" for the underpayment
of taxes as set out in the 1986 amendment to 26 U .S.C. § 6621 . Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621) shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
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 or-
dered 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
945
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Local 56, United Food
and Commercial Workers Union, AFL-CIO or any
other union.
WE WILL NOT threaten employees with more onerous
working conditions if they select the Union as their bar-
gaining representative.
WE WILL NOT create an impression of surveillance of
the union activities . of employees.
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 offer Kyle Willey immediate and full rein-
statement to his former job on the second shift, or, at his
choice on the first shift, to a substantially equivalent po-
sition , without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE WILL
make him whole for any loss of earnings and other bene-
fits resulting from his discharge , less any net interim
earnings, plus interest.
WE WILL notify Kyle Willey that we have removed
from our files any reference to his discharge and that the
discharge will not be used against him in any way.
WE WILL reopen and reestablish the second shift in
our shop.
WE WILL , on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit consisting of: All full time and regular part
time mechanics and lead mechanics, car washers/fuelers,
body shop helpers, tow truck drivers and maintenance
employees employed by the Employer at its Farming-
dale, New Jersey location.
OLYMPIC LIMOUSINE SERVICE, INC.