Pace Oldsmobile, Inc.

National Labor Relations Board - Board Decisions

Jul 1, 1981

256 N.L.R.B. 1001 (N.L.R.B. 1981)

PACE OLDSMOBILE, INC. 1001
Pace Oldsmobile, Inc. and Amalgamated Local
Union 355. Cases 2-CA-16958 and 2-CA-
17107
July 1, 1981
DECISION AND ORDER
On January 26, 1981, Administrative Law Judge
Raymond P. Green issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief. The General
Counsel filed limited exceptions and a brief in sup-
port thereof.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and briefs and has decided to
affirm the rulings, findings,' and conclusions2 of
the Administrative Law Judge, as modified herein,
to modify his remedy,3 but not to adopt his recom-
mended Order. 4
The General Counsel has excepted to the Ad-
ministrative Law Judge's failure to find that Re-
spondent violated Section 8(a)(1) of the Act by
telling employee Kenneth Barrett that the Union
would not provide insurance or other benefits
while Respondent would pay full insurance costs as
of the first of the year and could offer him partici-
pation in a profit-sharing plan. The record reveals
' Respondent has excepted to certain credibility findings made by the
Administrative I.au Judge It is the Board's estahlished policy not io
overrule an administrative law Judge', resolutilons waith respect to crcdl-
hility unless the clear preponderance of all of the relevanlt evidence ctiln-
vinces us that the resolutions are incorrectl. Standard Drv all Produt r.
Inc., 91 NLRB 544 (1
9
50), enfd. 188 F'2d 362 (3d Cir 19511 We hae
carefully examined the record and find ilto hasis fr revcrsing his findilngs
I In sec VIlC. par 2, of his ecision, the Administrative La Judge
found that Respondent sviolated the Act by threatening employees with
the loss of existing benefits if the) chose the Union to represent them
However, he inadvertently failed to reflect his findings that Respondent
Service Manager Marini and Montenaro threatened employees Neubauer
and Rosenfeld, rspectively, that they would lose persion arid profit-shar-
ing benefits if they chose the Iion to represent hem Coniclusion of
Law 7 will be amended accordigl
3 We have modified the Administrative Law Judge's rentedy to in-
clude Ihis Plumbing d& earing Co.. 138 NIRB 716 (1962),1 fr the ration-
ale on interest payments which he inadvertently ounited
In par. 2(b) of his recommended Order, the Administratls lauw
Judge provided that Respondent is required to dismiss any person hired
to replace Robert Kenned! after January 3. 1980 The record show,,s and
we find that Kenliedy was unlawfully laid off on Nuvember 2, 179
Accordingly we agree with the General Counsel's exception and find
that Respondent is obligated to reinstate Kentinedy, dlsmissilig, if neces-
sary, any replacement hired for Kennedy front that date
In par. I(g) of his recommended Order, the Adniinlstratile Iav. Judge
provided that Respondent shall cease and desist froim "in any like or re-
lated manner" infringing upon employee rights guaranteed in Sec 7 of'
the Act. However. we have considered this case i light of the standards
set forth in licukmott bFi d. Inc.. 242 NI.RB 1357 (97). and haec con-
eluded that a broad remedial order is appropriate inasmuch as Respornd-
ent has been shown to have engaged im egregious misconduct denion-
strating a general disregard fir the emploees' fullda;rmentll stalltutor
rights.
In light of the foreging, arid to correct certain other ininor errors in
the Administrative l.aw Judge's recommended Order. we xill ue I n
Order in lieu of that of the Admnillistraiac I.as Judge
256 NLRB No. 111
that on or about December 10, 1979, Barrett was
finishing up some work in the parts department
after closing time when the manager of that depart-
ment, Joseph A. Montenaro, approached him and
said, "I need to talk to you for a minute." Barrett
and Montenaro went into the Honda showroom
behind the parts department and sat down. Mon-
tenaro said, "I know everything that's going on in
the building, I know the union's coming in. Richie
Tognetti told me everything." Montenaro asked
Barrett if he was involved with the Union, had
gone to any meetings, or had signed a card. Barrett
indicated that he had not gone to any meetings, but
that he would go and hear what they had to say.
Montenaro replied "[T]hat's your right, you should
go. But, let me tell you, the union will just take
your dues, they'll screw over you [sic], they won't
pay your maternity or insurance like they say they
will." Montenaro then proceeded, in Barrett's
words, "to tell me what [Respondent] could do for
me. He said after the first of the year, we'll be
picking up 100 percent of your insurance. He ex-
plained the profit sharing program to me, and a
few other small items."
We agree with the General Counsel that Re-
spondent violated Section 8(a)(1) of the Act by
promising to provide Barrett with insurance fully
funded by Respondent. However, we do not agree
that Respondent's reference to its profit-sharing
plan also violated Section 8(a)(1) inasmuch as the
plan was in existence prior to the advent of the
union activities, and Barrett was offered no special
concession not available to other employees.5
AMENDED CONCI.USIONS OF LAW
Delete Conclusion of Law 7 and substitute the
following:
"7. By threatening to discharge employees who
support the Union, and by threatening to close its
facility and to cause the loss of pension and profit
sharing benefits if the Union were selected as the
collective-bargaining representative of its employ-
ees, Respondent violated Section 8(a)(1) of the
Act."
I We recogrnil liar the cormplail doe, lnot specifically allege that R-
spondent hrough its igerit M rontenaro, Ilaled Sec 8(a)(l) of the Actl
hy promising benefits tii Barrett. tlowever, it does allege that Respondenlt
violated the Act by other ltrenils made during this same conversatnio
We therefore find that Molntenaro's remarks are "sufficiently related to
the subject matter of the complaint to .justif> a specific finding of a ,iola-
tlitn if Sectio 8(a)( I) of the Act 4 xjUnder DI)aU on Inc.. d'hb/a .41.ran-
dr' Rtauurant and Lounlge, 228 NLRB 165 (1977). erifd 586 F 2d 13(0)
(9th Cir 1q76) Respolndent had cvcry opportunit, to litigalte the unlas-
fulness of M ronterarlo' remarks and full, ailililCd itself if that opporluii-
ty Iolh 1 1I.larlttt alld Mrrtllcll.ro a cre exr.ililncd iand Clo,-C examiln ed ex-
tisi tlN CI ccrrTrrng tIre (Ietails of t I)L-cmber I) COlnv ersatiOll See
(erald (;U rgn d / r (, mts Iraio iv, 22'1 N R 21. in 2 1977). renid
575 1: 21 5,6 7th ('i 11 Sl
ACE OLDSMOBILE, INC 001
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Pace Oldsmobile, Inc., New Rochelle, New York,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Laying off employees because of their mem-
bership in or activities on behalf of the Union or
any other labor organization.
(b) Promising or granting increased benefits such
as medical insurance, increased overtime, or early
entry into the pension and profit-sharing plan to
induce employees to withhold their support for the
Union.
(c) Threatening to discharge employees who sup-
port the Union, and threatening to close its facility
and to cause the loss of pension and profit-sharing
benefits if the Union is selected as the collective-
bargaining representative of its employees.
(d) Interrogating employees regarding their
membership in or support for the Union.
(e) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Amalgamated
Local Union 355, as the exclusive bargaining repre-
sentative of its employees in the following appro-
priate unit:
All full-time and regular part-time service em-
ployees employed by Respondent at its facility
located at 25 Main Street, New Rochelle, New
York, exclusive of all office clerical employ-
ees, salesmen, guards and supervisors as de-
fined in Section 2(1 1) of the Act.
(f) Unilaterally granting to its employees the
benefit of assuming the full cost of increased insur-
ance coverage without first notifying the Union
and bargaining collectively with it in good faith
concerning such a proposed change, provided that
nothing herein shall require Respondent to rescind
any increased benefit which it has previously grant-
ed.
(g) In any other 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 which
the Board finds willeffectuate the policies of Act:
(a) Offer Robert Kennedy, Eugene Rosenfeld,
and Frank DiPasquale immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, dismissing
if necessary any employees hired as replacements
for them.
(b) Make whole Robert Kennedy, Kenneth Bar-
rett, Richard Neubauer, Eugene Rosenfeld, and
Frank DiPasquale for any loss of earnings they
may have suffered by reason of the discrimination
against them in the manner set forth in the section
of this Decision entitled "The Remedy."
(c) Upon request, bargain with the Union as the
exclusive representative of all employees in the
aforesaid appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions
of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and, copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its facility at 25 Main Street, New Ro-
chelle, New York, copies of the attached notice
marked "Appendix." 6 Copies of said notice, on
forms provided by the Regional Director for
Region 2, after being duly signed by Respondent's
authorized representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations not specifi-
cally found herein.
6 In the eent that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
PACE OLDSMOBILE, INC. 1003
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT lay off employees because of
their membership in or activities on behalf of
Amalgamated Local Union 355, or any other
labor organization.
WE WILL NOT promise or grant increased
benefits such as medical insurance, increased
overtime, or early entry into our pension and
profit-sharing plan to induce our employees to
withhold their support for the Union.
WE WILL NOT threaten to discharge employ-
ees who support the Union, or threaten to
close our facility or to cause the loss of the
pension and profit-sharing benefits if the Union
is selected as the collective-bargaining repre-
sentative of our employees.
WE WILL NOT interrogate our employees re-
garding their membership in or support for the
Union.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Amalgamated Local Union 355, as the
exclusive bargaining representative of our em-
ployees in the following appropriate unit:
All full time and regular part time service
employees employed by us at our facility lo-
cated at 25 Main Street, New Rochelle,
New York, exclusive of all office clerical
employees, salesmen, guards and supervisors
as defined in Section 2(11) of the Act.
WE WILL NOT unilaterally grant to our em-
ployees the benefit of assuming the full cost of
increased insurance coverage without first no-
tifying the Union and bargaining collectively
with it, in good faith, concerning such a pro-
posed change, provided that nothing herein
shall require us to rescind any increased bene-
fits which we have previously granted.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL offer to Robert Kennedy, Eugene
Rosenfeld, and Frank DiPasquale, immediate
and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges previ-
ously enjoyed, dismissing if necessary any em-
ployees hired as replacements for them.
WE WILL offer to Robert Kennedy, Ken-
neth Barrett, Richard Neubauer, Eugene Ro-
senfeld, and Frank DiPasquale for any loss of
earnings they may have suffered by reason of
our discrimination against them.
WE WIL.L, upon request, recognize and bar-
gain with the Union as the exclusive collec-
tive-bargaining representative of our employ-
ees in the aforesaid appropriate unit with re-
spect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such under-
standing in a signed agreement.
PACE OLDSMOBII.E, INC.
DECISION
STATEMENT OF THE CASE
RAYMONI P. GREEN, Administrative Law Judge:
These consolidated cases were heard before me in New
York, New York, on July 7, 8, and 9, 1980. The charge
in Case 2-CA-16958 was filed by Amalgamated Local
Union 355, herein called the Union, on December 17,
1979, and the charge in Case 2-CA-1707 was filed by
the Union on February 28, 1980. The Regional Director
for Region 2 issued complaints and notices of hearing
based on the two charges, respectively, on January 31
and March 27, 1980. Thereafter, on March 28, 1980, the
two complaints were consolidated for hearing. The issues
presented are:
1. Whether on or about November 28, 1979, Respond-
ent discharged its employee, Robert Kennedy, because of
his membership, activities, or support for the Union.
2. Whether on or about December 4, 1979. Respond-
ent, by Joseph Montenaro, interrogated employees con-
cerning their union membership, activities, and support
of the Union.
3. Whether Respondent by posting a notice on Decem-
ber 6, illegally promised that it would assume the full
cost of medical and hospital insurance for the purpose of
dissuading employees from supporting the Union.
4. Whether on or about December 14 and 24, 1979,
Respondent, by Alvin Berchin and Joseph Marini, re-
spectively, promised wage increases to employees for the
purpose of dissuading them from supporting the Union.
5. Whether on or about December 15, 1979, Respond-
ent, by Joseph Marini' and Joseph Montenaro, threat-
ened employees with loss of benefits, plant closure, and
the loss of jobs if they supported the Union, and implied-
ly promised better benefits if employees refrained from
assisting or supporting the Union.
I Rehpondint's answecr admits the allegations that the following named
people are supervisors ithin the meaning of Sec 2(11) of the Act and
agent acting on Respondent's behalf: Herbert R Herrmann, president;
Edward I Iterrmann. treasurer-sales manager; Alvin Berchin, general
manager, Joseph M Marini. service manager, Joseph A Montenaro,
parts manager
PACE OLDMOILE, INC.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Whether on January 1, 1980, Respondent illegally
granted wage increases and the benefit of assuming the
full cost of medical and hospital insurance in order to
dissuade employees from supporting the Union.
7. Whether a strike which commenced on January 3,
and which lasted until February 27, 1980, was caused
and prolonged by the unfair labor practices allegedly
committed by Respondent.
8. Whether Respondent on February 27, 1980, by re-
fusing to reinstate strikers Kenneth Barrett, Eugene Ro-
senfeld, Richard Neubauer, and Frank DiPasquale to
their former positions of employment after they had un-
conditionally offered to return to work, discriminated
against these employees in violation of Section 8(a)(l)
and (3) of the Act. In this regard, Respondent contends
that it disqualified Barrett, Rosenfeld, and Neubauer
from reinstatement because of their alleged strike mis-
conduct. As to DiPasquale, although he was reinstated
on February 27, 1980, he was not reinstated to his
former position of employment.
9. Whether Respondent, by engaging in the alleged
unfair labor practices described above, made a fair and
free election impossible and thereby refused to bargain
with the Union on December 4 in a unit of service em-
ployees in which the Union had obtained majority sup-
port.
10. Whether, assuming arguendo, that a bargaining
order would otherwise be appropriate, the alleged strike
misconduct of the Union and employees was of such a
nature as to preclude the granting of such an order.
Upon the entire record, including my observation of
the demeanor of the witnesses and after due considera-
tion of the briefs filed, I make the following:
FINDINGS OF FACT2
1. JURISDICTION
The complaints allege, the answers admit, and I find
that Respondent is a New York corporation located in
New Rochelle, New York, where it operates an auto-
mobile dealership which is involved in the retail sale and
service of cars. Additionally, Respondent is engaged in
the nonretail sale of car replacement parts. Annually, Re-
spondent has gross revenues in excess of $500,000 and
purchases goods and materials, such as car replacement
parts, in excess of $50,000 which are delivered directly
to it from points located outside the State of New York.
Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE L.ABOR ORGANIZATION INVOLVED
Respondent admits and I find that Amalgamated Local
Union 355, is a labor organization within the meaning of
Section 2(5) of the Act.
2 On September 16, 1980, I denied Respondent's motion to reopen the
hearing made on August 1 I, 1980. A copy of my Order is attached to the
Decision as Appendix A (Appendix A omitted from publication.)
III. THE APPROPRIATE BARGAINING UNIT ANt) THE
UNION'S MAJORITY STATUS
The parties agree that the appropriate unit for collec-
tive-bargaining purposes would include all full-time and
regular part-time service employees employed by Re-
spondent at its facility located at 25 Main Street, New
Rochelle, New York, exclusive of all office clerical em-
ployees, salesmen, guards and supervisors as defined in
the Act. It was stipulated that on December 4, 1979,
which is the date that the Union demanded recognition,
that there were between 18 to 22 service employees in
the above-described bargaining unit. It also was stipulat-
ed that by December 4, 1979, the Union had obtained
valid authorization cards from 14 of the unit employees,
which cards designated the Union to represent them for
collective-bargaining purposes.
As no evidence was adduced which would negate the
authenticity or validity of the authorization cards signed
by the employees on behalf of the Union, I therefore find
that on December 4, 1979, a majority of the unit employ-
ees had designated the Union as their collective-bargain-
ing representative.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Robert Kennedy, one of the alleged discriminatees was
hired by Joseph Montenaro, the parts manager, on Sep-
tember 11, 1979, and began work as a counterman in the
parts department on September 18. Kennedy testified
that during the phone conversation with Montenaro, im-
mediately prior to his hire, he asked if Respondent was a
union shop. Kennedy states that when Montenaro asked
why he made such an inquiry, he responded that he was
currently working in a union shop and would need to
withdraw his membership if he obtained employment in
a nonunion shop. According to Kennedy, Montenaro
then stated, "if there was ever a union in this shop, I'll
fire everybody .... Montenaro did not deny this con-
versation.
Regarding the hiring of Kennedy, Montenaro in his
pretrial affidavit stated, "I hired Robert Kennedy to
work as a counterman in September 1979, a new position
in the parts department. The new position was added
due to increased business. Kennedy was the last person
hired." With respect to the parts department, it is noted
that Respondent, in addition to providing parts in con-
nection with its retail, sale, and service of vehicles, also
sells parts to other body shops on a wholesale basis. In
this regard, Alvin Berchin, Respondent's general man-
ager, testified that a majority of this department's busi-
ness involves the sale, at wholesale, of parts to outside
companies.
In November the Union commenced organizing the
employees of Respondent, and authorization cards were
distributed and signed by employees during the period
from November 27 to December 4. Robert Kennedy
signed such a card on November 27.
According to employee Kenneth Barrett, Montenaro,
on or about November 18, pointed to employee Eugene
Rosenfeld and said, "I know he is an instigator and if I
PACE OLDSMOBILE, INC 1005
was Mr. Herrmann I would fire him right now." 3 Bar-
rett also testified that on November 27, Montenaro told
him that he thought Kennedy was an instigator. Monten-
aro denied both of these alleged conversations.
On November 28, 1979, a notice was posted by Re-
spondent regarding insurance. The notice read:
Effective with the turn of the New Year the
Company will pick up all costs for Blue Cross-Blue
Shield, Major Medical and Dental Plan for all em-
ployees, their spouses and dependent children under
19 years of age. The above programs have two re-
strictions.
1. A minimum amount of continuing service.
2. It cannot be duplicate coverage.
In other words if you have a spouse that is working
and they have that coverage, please do not put the
Company through the expense as you could only
collect one time. This new coverage is in addition
to the life insurance already in force with Met Life
completely paid for by the Company.
According to Berchin, in January or February 1979,
he and the Company's president, Herrmann, decided that
Respondent would pick up the full cost of Blue Cross
and Blue Shield coverage and determined to accomplish
this in a two-step manner. He testified that in the begin-
ning of 1979 it was decided that in July the Company
was going to pay for the first $20 of each employee's
cost and that in January 1980 the Company would pick
up the remainder of the cost. In July, a notice was
posted which indicated that Respondent would pay the
first $20 of the Blue Cross and Blue Shield coverage.
This notice did not, however, indicate that this was to be
the first step in a two-step plan and until the above
notice was posted on November 28, the employees were
never notified that Respondent had made a decision to
cover the entire cost of medical insurance. Indeed, in the
pretrial affidavit of Joseph Montenaro, the parts man-
ager, he stated that the first time he heard of the Compa-
ny's decision to pay the full cost of Blue Cross and Blue
Shield was in the notice posted on November 28. I also
note that Herbert Herrmann, Respondent's president,
was not called as a witness in this proceeding, and there-
fore did not corroborate Berchin's testimony that the de-
cision to cover the entire cost of such medical insurance
was made in the beginning of 1979.
In November, and by November 28, 1979, Respondent
had laid off five employees. As to these employees, Gen-
eral Counsel does not allege that their layoffs were dis-
criminatorily motivated, and therefore concedes that
they were laid off for business reasons. 4 On November
a Eugene Rosenfeld had signed a union card on November 19. 1979
4 The evidence establishes that Lee Seacord. a salesman. was laid off
on November 6, 1979; that Danny Gore and Gus Loaiza. wsho orked in
the service department, were laid off on Nolember I6 and 27. respectise-
ly; and that Jacob Lachner, a mechanic, as laid off on Noemher 27,
1979. Also, the record establishes that Greg arfield, wuho worked in the
make-ready department, quit on November 16 and that another cmplosee
in that department, Eugene Mazzolli, quit in December, thereb) requirlng
the Company to hire Mike Mulrooney as a replacement at that time
28, 1979, Robert Kennedy was laid off. In support of
General Counsel's assertion that Kennedy was discrimin-
atorily laid off on Wednesday, November 28,' and not
laid off simply for economic reasons as were the five
other employees, she relies on the following affirmative
evidence. According to Kennedy, during the afternoon
of November 28, he spoke to Gus Loaiza, who had pre-
viously been laid off, and asked him in the presence of
Barrett and Montenaro if he would like to go to a union
meeting. Kennedy states that immediately after speaking
with Loaiza, Montenaro left the parts department to go
to the office. According to Kennedy, at or about 4 p.m.
Montenaro told him that he was being laid off. Kennedy
testified that he asked Montenaro why he was being laid
off and Montenaro said, "it wasn't my decision, it came
from the office." Kennedy further testified that when he
pressed Montenaro for a reason, he was told, "I don't
know, it came from the office." According to Kennedy,
he had no prior notification, warnings, or reprimands
that he was going to be laid off.
As to the incident on the afternoon of November 28,
Barrett, who at that time was employed as the assistant
parts manager, testified that he saw Kennedy speaking
with Loaiza in the parts department while he, Barrett,
was talking with Montenaro. He states that he heard
Kennedy talk to Loaiza about a union meeting, where-
upon Montenaro left the department to go to the office.
According to Barrett, Montenaro told him later in the
day that he had told Kennedy that the Company had to
lay him off because work was slow.
Montenaro testified that he did not recall seeing Ken-
nedy speak with Loaiza on November 28, and did not
overhear a conversation between these two individuals
on that day.
According to Barrett, he had a conversation with
Montenaro on December 10 at closing time. Barrett testi-
fied that during this conversation, Montenaro said, "I
know everything that's going on in the building, I know
the Union's coming in, Richard Tognetti told me every-
thing." 6 Barrett states that Montenaro went on to say, "I
let Bobby go because I [knew] he was a union instiga-
tor." According to Barrett, Montenaro asked him if he
was involved with the Union, if he had gone to any
meetings, or if he had signed a union card. He asserts
that Montenaro said that the Union was no good and
then said, "Well I'm glad I made the right decision by
laying Bobby off because I had to let one of you go. I
knew one of you was instigating and I had a suspicion it
was Bobby because Bobby had mentioned to me in his
. . .job interview. He asked me if it was a union shop
and I said no way." Barrett further testified that during
this conversation Montenaro mentioned Frank DiPas-
quale, Mike Stewart, Eugene Rosenfeld, Carmen Nella,
and Kennedy as being instigators, and said that Herr-
mann would rather close the business and reopen it else-
where if the Union came in. According to Barrett, he
told Montenaro that he was not involved with the Union
but that he would go to union meetings to hear what
they had to say. He states that Montenaro responded by
b Wdlednesdal is the day hen employees are normally paid
Tognetti is an employe s ho works in the parts department
PACE OLDSMOBILE, INC
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
saying, "Well that's your right, you should go, but let
me tell you the Union will just take your dues ... "
Barrett also recounted a number of other conversa-
tions he allegedly had with Montenaro after Kennedy's
layoff until January 1980. In one, he testified that Mon-
tenaro said, he hoped that Barrett was not getting in-
volved with the Union. In another, Barrett testified that
Montenaro pointed to employee Michael Stewart and
said, "I can't understand why he is instigating, we treat-
ed Mike so good all these years." In the third instance,
Barrett states that Montenaro expressed his opinion that
Frank DiPasquale was an instigator. Finally, in a fourth
instance, Barrett testified that Montenaro said to him,
"I'm going to level with you because I like you. I want
you to stay with me and I don't think you're involved
with the Union." According to Barrett, Montenaro reit-
erated in this last conversation that Kennedy was let go
because he knew Kennedy was a union instigator. Bar-
rett testified that Montenaro further said that he knew
the Union was coming in eventually and stated that the
reason for the layoffs of Loaiza, Danny Gore, and Jacob
Lachner was because they were poor workers whom the
Company did not want to get stuck with if the Union
came in.
Regarding the above, Montenaro testified that on De-
cember 10 he told Barrett that he would like him to stay
on because he was doing a good job and that he would
get a raise in December. In all other respects, Montenaro
denied the version of this December 10 conversation
given by Barrett and also denied the other alleged con-
versations which Barrett related to in his testimony.
According to Berchin, he and Herrmann had a con-
versation in late September or early October 1979 where
they discussed the "climate of the automobile business."
He testified that it was decided to cut expenses and re-
trench the Company's operations because business nor-
mally slowed down in December, January, and Febru-
ary, and because the sale of automobiles had been down
generally. He states that at this meeting it was decided to
cut one employee from the BMW department, to cut one
or two from the service department, to cut one from the
new car make-ready department, and to cut one employ-
ee from the parts department. According to Berchin,
after the above-noted discussion with Herrmann, the var-
ious department heads were consulted at length in Octo-
ber and November as to whom they thought should be
let go. Berchin specifically testified that he spoke to
Montenaro for the latter's evaluation of the men in his
department. Although Berchin testified that it was left to
Montenaro to select the man for layoff, he and Herr-
mann did recommend that Kennedy be the employee to
be laid off. Berchin explained that this recommendation
was made on the basis that Kennedy was the last to be
hired in the department and also because there were
rumors that Kennedy was having arguments with other
employees.
Regarding Kennedy's layoff, Montenaro testified that
he was told by Berchin and Herrmann to lay off one
person in this department and that he chose Kennedy be-
cause he had the least seniority. Montenaro also testified
that, in late October or early November, Berchin and
Herrmann told him that the overhead in the parts depart-
ment was very high, that the department was not making
enough profit, and that business was slow. Montenaro
states that at that time he was asked who was the last
hired and that Kennedy was described as the least senior
man. However, in Montenaro's pretrial affidavit he
stated:
It was entirely my decision to let Kennedy go. I
decided to make Kennedy the one to go the same
day he was fired or the day before. I did not discuss
my choice of who to fire with anyone before I let
Kennedy go.
In connection with the testimony by Montenaro to the
effect that he was told in October or November 1979
that he had to eliminate one man because business was
slow and his department was not making enough profit,
the following is a chart of profitability for this depart-
ment for the months ending May 31, 1979, to April 30,
1980, taken from Respondent's business records:
Month
5/31/79
6/30/79
7/31/79
8/31/79
9/30/79
10/31/79
11/30/79
12/31/79
1/'30/80
(strike)
2/28/80
(strike)
3/31/80
4/30/8(1
Sales
$53,135
54.237
53.845
52,262
41,259
53,482
52,713
47,344
27.874
24,076
38,846
44.725
PreJir
$10,678
11,343
12.644
10,788
8,839
12.432
12,.022
10.204
4,780
6,973
6,975
9,233
It also is noted that an analysis of the payroll records
for the employees working in the parts department, ex-
clusive of Montenaro 7 and two truckdrivers, shows that
both before and after Kennedy was laid off, there was a
significant amount of overtime by the employees of that
department. Thus, for the period from the week ending
September 28, to December 28, 1979, immediately prior
to the strike, the records show as follows:
Barnett Tognetti Kennedy
Wk. Ending
8/3/79
8/10/79
8/17/79
8/24/79
8/31/79
9/7/79
9/14/79
9/21/79
9/28/79
10/5/79
10/12/79
' No rcords
Keg. Or Reg. 01. Reg. Ot.
32 2.25 40
40 4.25 40
40 2.75 40
40 3 75 40
40 2.0 40
32 1.5 34.75
40 2.5 40
40 4.5 40
40 3.0 40
40 2.5 40
40 3.0 40
5.5
4.75
9.25
3.25
3.75
-0-
4.5
12.75
3.0
6.5
3.75
40 0
40 0
40 0
were inlroduced to shrow Mlntenaro's hours and it is
presumed thal as a manager, Monltenaro was paid on a salary basis
PACE OLDSMOBILE, INC. 1007
Wk Ending
10/19/79
10/26/79
11/2/79
11/9/79
11/16/79
11/23/79
11/30/79
12/7/79
12/14/79
12/21/79
12/25/79
Barnett Tognetti Kennedy and about 14 or 15 of Respondent's employees participat-
ed in the strike. Among the employees who struck were
Reg. Ot. Reg. Ot. Reg. 0. Kenneth Barrett, Eugene Rosenfeld, Frank DiPasquale,
40 5.0 40 11.75 40 0 Michael Stewart, Trevor McCook, Richard Neubauer,
40 2.75 40 5.75 40 0 Michael Mulrooney, Andre Ramariez, and Victor Spen-
40 3.0
40 4.5
40 2.25
32 1.0
40 6.25
40 13.75
40 6.75
40 4.0
24 .75
40
40
40
32
40
40
40
40
24
10.75
6.25
6.75
7.5
11.0
12.75
5.0
5.75
2.5
40 0
40 0
40 0
32 0
24 0
According to Richard Neubauer about 2 weeks before
Christmas, Service Manager Joseph Marini took him out
for a test drive. Neubauer states that during the ride
Marini told him that the Union would screw him, that
the Company had put money into the pension and profit-
sharing plans and that if the Union came in, the employ-
ees would not get that money and that, "if the bosses
found out that we went Union, we could get fired or laid
off." Marini for his part, states that Neubauer volun-
teered that his father opposed unions and that he (Neu-
bauer) was not in favor of the Union. According to
Marini, he did not respond to Neubauer's statements and
he denied the assertions made by Neubauer.
According to Frank DiPasquale, he was told by Ber-
chin and Montenaro in early December that in January
1980 he would be getting a $25 raise and that he could
join the pension plan. As to this matter, the evidence
shows that the Company gives raises every year in Janu-
ary and that it maintains a pension and profit-sharing
plan, participation in which is voluntary on the part of
the employees. The record also establishes that the wage
increases given each year are dependent on various fac-
tors such as merit, length of service, and the rate of infla-
tion. In 1977, the wage increases ranged from $10 to $25
with DiPasquale receiving a $10 raise. In 1978, the wage
increases ranged from $10 to $20 with DiPasquale re-
ceiving a $15 raise. The range for 1979 was not set forth
in the record and the only evidence as to the amounts of
such increases is that DiPasquale received a $25 raise
and that Barrett, who had been hired in 1979 as a parts
counterclerk, received an increase of $30. In the latter
regard, however, the record establishes that Barrett had
been promoted to the position of assistant parts manager
prior to receiving the raise in question.
Eugene Rosenfeld testified that in mid-December he
had a conversation with Montenaro who said that if he
voted for the Union he would lose the pension and
profit-sharing benefits and that if he did not support the
Union he would get a good deal on overtime and be al-
lowed early entry into the profit-sharing pension and
plan. Montenaro denied this conversation.
On January 2, 1980, employees of the Company held a
meeting where they voted to strike. The evidence estab-
lishes that the vote to strike was motivated, at least in
part, by the layoff of Kennedy, and after discussion of
the various alleged statements made to employees by Re-
spondent's agents. On January 3, the strike commenced
cer.
In relation to the strike, Respondent alleges that there
was a substantial amount of vandalism and property
damage and that specific acts of misconduct were com-
mitted by Barrett, Rosenfeld, and Neubauer.
With respect to Neubauer, Larry Herrmann 8 testified
that in early January, as he was looking out the window,
he saw Neubauer move his hand across a car parked on
Respondent's property. He states that when Neubauer
walked away he saw Neubauer put something in his
pocket and that when he went to look at the car, he saw
that it was scratched. Edward Herrmann testified that
about 9:15 a.m. he saw Neubauer extend his arm against
the car which when examined showed a 12- to 15-inch
scratch on the door costing $180 to repair. He states that
when Neubauer walked away from the car it appeared
that Neubauer put an object back in his pocket. Neither
witness, however, actually saw Neubauer touch the car
with any type of object and neither could say with any
certainty that Neubauer actually had an object in his
hand. Edward Herrmann testified that the particular ve-
hicle had come into the lot on that day and that he had
examined it at 9 a.m. He states that his examination of
the car prior to the incident showed no scratches. Neu-
bauer denied making any scratch on the car or touching
it in any manner.
In connection with Rosenfeld, Respondent contends
that during the strike he threw an object over the fence
on Respondent's premises which resulted in damage to a
BMW in the amount of $125. Respondent also contends
that Rosenfeld threatened a truckdriver. These allega-
tions were denied by Rosenfeld.
Mary Pacetti, Respondent's bookkeeper, testified that
on or about January 25, at 9:30 a.m., she saw Rosenfeld
throw something over the fence which hit the trunk of a
BMW. She states that she saw that Rosenfeld was stand-
ing about 6 to 8 feet from the fence, which is about 7
feet high. She also states that she did not actually see
what object was thrown, although she saw something
bounce. She could not estimate the size, shape, or color
of the object and testified that the object was never
found. In the latter regard, Pacetti testified that at the
area where the BMW was parked, there were pot holes
on the ground and broken up concrete. According to
Larry errmann, he saw Rosenfeld make a hurling
motion and saw some type of object go over the fence.
He states that when he then examined the BMW it had a
dent on its trunk which was about the size of a fist. He
indicates that the object was thrown with great velocity,
similar to the throwing of a baseball or a hook shot in
basketball. The BMW, he explained, was parked next to
the fence at a right angle to it, thus protruding about 15
feet, and that the object was thrown on an angle which
commenced from beneath the top of the fence. He also
I arr? lcrrmann i a salesman and ia all .n ilf the Clnlrpany,
pre,,idcnl
PACE OLDSMOBILE, INC
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that the object could not be found, although his
testimony was that the ground near the car was smooth
and not littered with loose concrete.
As to other incidents involving Rosenfeld, George De-
divanovic, a truckdriver employed by Respondent, testi-
fied that on one occasion sometime in February, he was
followed by a car and that the driver of the car yelled,
"why don't you come out because we're going to kill
you." Although Respondent attributes these remarks to
Rosenfeld, Dedivanovic could not identify the driver
other than by describing him as a short, chubby man.
Dedivanovic also testified to another incident, wherein
Rosenfeld was identified. In this second incident, Dedi-
vanovic testified that he saw Rosenfeld and DiPasquale
follow a truckdriver to a lot owned by Respondent after
they had talked to the driver who was trying to make a
delivery at Respondent's facility. He testified that when
the delivery truck came to the lot, Robert Kennedy
drove his car in front of the trailer and Rosenfeld drove
up behind the trailer so that it could not enter the lot. He
testified that the police were then called and that they
told Kennedy and Rosenfeld to remove their vehicles.
Kennedy did move his car out of the way but Rosenfeld
did not, and was placed under arrest. Shortly thereafter,
the latter's car was moved and the truck entered the lot.
With respect to Barrett, the testimony discloses that
after the truck-blocking incident described above, Barrett
approached the Company's showroom window, yelled at
Herrmann, and banged against the window where he
was standing. Respondent contends that Barrett hit the
window with his fist in a manner intended to break it.
Barrett testified that he fell over a ledge between the
bushes and the window and that he banged into the
window merely in an attempt to break his fall. In any
event, the window was not broken at this time and it is
difficult for me to believe that Barrett intended to break
the window with his bare hands, a result which could
have resulted in serious injury to himself.
In addition to the above-noted incidents, Respondent
also adduced testimony concerning a general rise of van-
dalism at its premises during the period of the strike.
However, no evidence was presented to show that the
acts of vandalism were attributable to any particular indi-
vidual or individuals. Respondent nevertheless asserts
that this vandalism is attributable generally to the strik-
ing employees and the Union because of the low inci-
dence of vandalism both before and after the strike. In
this regard, Respondent cites the following:
1. Bricks thrown through the showroom windows,
which broke the windows and damaged about three or
four cars.
2. Nails found in the tires of cars owned either by the
Company or employees who worked during the strike.
According to the testimony of Marini, he saw on one oc-
casion a striking employee, Mike Mulrooney, throw nails
on the driveway. He also testified that about five cars
had tire damage during the strike.
3. Marini testified that there were three cars that sus-
tained damage to their windshields.
On February 27, 1980, the strikers went to the Compa-
ny where they made an unconditional offer to return to
work. At that time, the Company acceded to this offer
except to the extent that it refused to reinstate Barrett,
Neubauer, and Rosenfeld citing the fact that criminal
charges were pending against each of them for strike
misconduct. As to Frank DiPasquale, although he was
reinstated, he was transferred to the job of utility man
which involved, among other things, cleaning cars. Prior
to the strike, DiPasquale was employed as a truckdriver.
On April 11, 1980, the Company sent mailgrams to
Richard Neubauer and Kenneth Barrett offering them
full and immediate reinstatement to their former positions
of employment. They were directed to return to work
no later than April 16, 1980, at 8 a.m. or otherwise give
notice of their intentions. Neither employee accepted the
offers of reinstatement and on April 17, 1980, the em-
ployer sent letters to each, indicating its position that
they voluntarily abandoned their jobs.
V. CONCLUDING FINDINGS
A. The Layoff of Robert Kennedy
The issue here is whether Kennedy was laid off on
November 28 for economic reasons or because of dis-
criminatory reasons. In evaluating the facts it must first
be ascertained whether the General Counsel has made a
sufficient showing "to support the inference that protect-
ed activity was a 'motivating factor' in the employers de-
cision," which if shown shifts the burden on Respondent
"to demonstrate that the same action would have taken
place even in the absence of protected conduct." Wright
Line, a Division of Wright Line, Inc., 251 NLRB 1083
(1980).
In the instant case the facts unequivocally establish
that the Union commenced its organizational activities
amongst the employees of Respondent in November 1979
and that Kennedy signed an authorization card for the
Union on November 27, the day before his layoff. It also
is established that Joseph Montenaro, the parts depart-
ment manager, was opposed to unions generally as Ken-
nedy testified without contradiction that, during his con-
versation with Montenaro at the time of his hire, the
latter said that if there was ever a union in the shop he
would fire everybody. The credible evidence also estab-
lishes that on November 28, 1979, Kennedy, in a conver-
sation overheard by Barrett and Montenaro asked Loaiza
if he was going to attend a union meeting, after which
Montenaro abruptly left, went into the office and shortly
thereafter notified Kennedy that he was being laid off. In
this respect, I credit the testimony of Kennedy as to this
transaction which was corroborated by Barrett and I do
not credit the denial by Montenaro. Both Kennedy and
Barrett impressed me as forthright witnesses whereas
Montenaro's testimony had a number of inconsistencies
which will be described below. Further, the credited tes-
timony of Barrett reveals that, about 10 days prior to
November 28, Montenaro pointed out another employee,
Eugene Rosenfeld, whom he described as a union insti-
gator thereby establishing Respondent's knowledge of
the union activity among its employees.
Further affirmative evidence showing the discriminato-
ry nature of Kennedy's layoff is shown by the testimony
of Barrett that on December 10 and on one other occa-
PACE ODSMOBILE INC 1 009
sion before January 2, 1980, Montenaro told him that
Kennedy was selected for layoff among the parts depart-
ment employees because he was a union instigator. While
such an open admission made by a supervisor to an em-
ployee is not always plausible, it must be recalled that at
the time of this conversation, Barrett had been promoted
to assistant parts manager and, therefore, was someone in
whom Montenaro might plausibly confide.
With respect to Respondent's defense, it would appear
that there did exist justification for laying off some of its
employees for economic reasons as it is recognized that
the sale of automobiles, especially American made vehi-
cles, was undergoing a significant decline at the time
these events took place. Moreover, it is not unreasonable
to conclude that Respondent was in a position to reason-
ably speculate in October and November 1979 that fur-
ther declines were imminent for the immediate future. As
such, I credit Berchin's testimony that, in late October or
early November 1979, he and Herbert Herrmann did dis-
cuss the "climate of the automobile business" and did
decide at that time to reduce the number of people em-
ployed by the Company. Indeed the evidence establishes
that during November the Company did layoff five other
employees for economic reasons, a contention which is
conceded by General Counsel as she did not allege these
layoffs as being discriminatory in nature. The critical
question here, however, is whether Berchin and Herr-
mann also decided to layoff an employee in the parts de-
partment and whether the ultimate decision to lay off
Kennedy was untainted by discriminatory motivation or
would otherwise have occurred despite his union activi-
ty.
Although Berchin testified that the decision to layoff
an employee in the parts department was made in late
September or early October. It is noted that Kennedy
was hired in mid-Septemher due to increased business in
that department. Moreover, Berchin and Montenaro
assert that Montenaro was consulted in late October or
early November as to who in the parts department
should be laid off and that it was the consensus of Ber-
chin, Herrmann, and Montenaro that it should be Kenne-
dy. However, Montenaro in his pretrial affidavit stated
that it was his decision to let Kennedy go, that his deci-
sion was made on November 27 or 28, and that he did
not discuss his decision with anyone before letting Ken-
nedy go. Montenaro also testified that at the time he was
told by Berchin and Herrmann to layoff an employee in
the parts department, he was told that the reason was be-
cause overhead in the department was very high, that
this department was not making enough profit and that
business was slow. Nevertheless, the sales and profit fig-
ures for the parts department show that in October and
November profits were at or near their highest point
during the period from May 1, 1979, through April 30,
1980, and that the employees in that department were
working significant amounts of overtime before and after
Kennedy was laid off. In the latter regard, the payroll
records show that during the week ending November 30
the amount of overtime for two employees was 17 hours
and that in the week following Kennedy's layoff the
amount of overtime was 26 hours. Finally, while I can
understand the Company's assertion that it made a pro-
jection regarding vehicles sales I do not see, on the basis
of this record, the efficacy of a projection for parts sales
which would not appear to be related to the number of
vehicles sold but rather would be related to the number
of breakdowns of vehicles already in the public's hands.
In summation, I do not credit Berchin's testimony that
in late September or early October he and Herbert Herr-
mann decided to eliminate an employee from the parts
department as I am not persuaded that the reasons assert-
ed conform to the evidence presented. Not only was
Berchin's testimony regarding the consultation and dis-
cussion between himself, Herrmann, and Montenaro in-
consistent with Montenaro's pretrial affidavit, but I
cannot help but note that the other participant in the al-
leged decision, namely, Herrmann was not called as a
witness by Respondent to corroborate its defense. Fred
Stark and Jamaica, 201 St. Corp., Inc. and Jamaica 202
St. Corp.. Inc., 213 NLRB 209, 213, 214 (1974); Gulf-
Wandes Corporation, 233 NLRB 772, 777 (1977). Accord-
ingly, based on the record as a whole it is concluded that
the layoff of Kennedy on November 28 was motivated
by discriminatory reasons in violation of Section 8(a)(l)
and (3) of the Act.
B. The Promises and Grants of Health Insurance
Benefits and Wage Increases
As noted above, I have concluded that prior to No-
vember 28, Respondent was aware of the Union's organi-
zational campaign amongst its employees. Accordingly,
the announcement on November 28 that the Company
was going to pay for the full cost of medical insurance
would, prima facie, be violative of Section 8(a)(1) of the
Act inasmuch as it would, in the absence of rebuttal evi-
dence, raise the inference that the granting of such a
benefit was designed to the influence employees to with-
hold their support for the Union. N.L.R.B. v. Exchange
Parts Co., 375 U.S. 405 (1964). In cases where an em-
ployer grants a benefit during a period of union activity,
the legality of such an act depends upon whether the
transaction either conforms to a past practice or had
been planned and determined prior to the employees'
union activity. Starbrite Furniture Corp., 226 NLRB 507,
510 (1976); Gould, Inc., 221 NLRB 899, 906 (1975). In
the instant case, Respondent asserts that back in January
or February 1979 it had decided to pay for the employ-
ees' Blue Cross and Blue Shield coverage and that it was
then determined to implement this decision in a two-step
process, the final step to take place in November 1979.
The problem with Respondent's defense is that I do not
credit Berchin's testimony on this issue.
The evidence herein establishes that in July Respond-
ent posted a notice informing its employees that the
Company was going to pay for the first $20 of their
medical coverage. Nevertheless, and despite Berchin's as-
sertion that this notification was simply the first step of a
two-step process, the notice itself did not so indicate.
Moreover, the two-step nature of the plan was never an-
nounced to any of the employees and it appears that
even the Company's supervisors were ignorant of the
plan as the record discloses that Montenaro did not
know that the Company intended to pay the full cost of
PACE OLDSMOILE INC oog
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
medical insurance until the November 28 announcement.
Thus, this record indicates that the only people who
were aware of the "plan" were Berchin and Herbert
Herrmann. Of these two, Respondent chose to call only
Berchin as a witness, a decision which to my mind casts
a substantial doubt about the plan's prior existence. I,
therefore, do not credit Respondent's assertion that the
decision to pay the full cost of the Blue Cross and Blue
Shield insurance was made in January or February 1979.
Rather, I conclude that, having decided to pay for the
first $20 of such medical coverage in July, the Respond-
ent found it expedient to pay the remaining cost when it
became apparent that the Union was organizing its em-
ployees. I therefore conclude that by promising this
benefit on November 28 and by implementing the prom-
ise in January 1980, Respondent violated Section 8(a)(l)
of the Act.
The promises and grants of wage increases are, how-
ever, a different matter. In this respect, the record estab-
lishes that merit raises are granted to the Company's em-
ployees each January. The record also establishes that
the size of such increases is dependent on a number of
factors including seniority, merit, and the rate of infla-
tion, which has increased in each year. That Respondent
promised certain employees that they would get wage in-
creases in January and granted such wage increases at
that time does not, of itself, raise an inference of illegal-
ity in light of the Company's past practice. Nor do I
conclude that the size of the wage increases granted to
DiPasquale or Barrett were disproportionally large so as
to raise an inference that the amounts were designed to
influence their union sympathies. In DiPasquale's case,
he received raises in prior years, respectively, of $10 and
$15 and his raise of $25 in January 1980 would appear to
be part of a pattern. Although Barrett received a raise of
$30 in January 1980, while he was still a relatively junior
employee, it nevertheless is reasonable to assume that the
amount of this merit raise was due, in part, to his promo-
tion from parts counterclerk to assistant parts manager.
As such, it is concluded that in this respect Respondent
did not violate the Act.
C. Other 8(a)(1) Conduct
As previously described, I have concluded that Barrett
was a forthright and candid witness. I therefore find that
when Montenaro told Barrett that he knew Rosenfeld
was a union instigator and that he would fire him if he
were Herrmann, Respondent violated Section 8(a)(1) by
threatening to discharge employees because of their
union activity. I also conclude that on December 10,
1979, Montenaro told Barrett that Kennedy was let go
because he was a union instigator, that he questioned
Barrett as to whether he was involved with the Union,
had gone to union meetings, and had signed a union
card, and that Montenaro told Barrett that Herrmann
would rather close the business and reopen it elsewhere
if the Union came in. Accordingly, I find that Respond-
ent violated Section 8(a)(l) of the Act, respectively, by
threatening to discharge employees who supported the
Union, interrogating employees regarding their union ac-
tivities and sympathies, and threatening plant closure if
the Union was selected by the employees as their repre-
sentative.
On demeanor grounds, and also based on the consist-
ency of their testimony, I shall credit the testimony of
Neubauer and Rosenfeld. Therefore, I find that in early
December 1979 Joseph Marini told Neubauer that if the
employees chose the Union to represent them they could
lose the profit-sharing plan. I also find that Marini told
Neubauer, "that if the bosses found out we went union
we could get fired or laid off." In my opinion these
statements constitute threats of discharge and threats of
loss of existing benefits in violation of Section 8(a)(l) of
the Act. American Tara Corporation, American Carbon
Paper Division, 242 NLRB 1230 (1979); Travis Meat &
Seafood Company, Inc., 237 NLRB 213 (1978). Based on
the credited testimony of Rosenfeld, I also find that in
mid-December Montenaro told him that if the Union got
in the employees would lose the pension and profit-shar-
ing benefits, and that he further told Rosenfeld that if
Rosenfeld did not support the Union he would receive a
good deal in overtime and he would get early entry into
the pension and profit-sharing plan. In these respects, I
conclude that Respondent violated Section 8(a)(l) of the
Act.
D. The Strike and the Refusal To Reinstate
VNeubauer, Barrett, Kennedy, and DiPasquale to Their
Former Positions of Employment
On January 2, 1980, employees of Respondent held a
meeting at which they voted to engage in a strike. The
record herein reveals that at least part of the reason that
these employees voted to strike was due to the layoff of
Kennedy. Also they were motivated to strike when they
recounted the various statements made to them by Re-
spondent's agents as described above. As I have conclud-
ed that the layoff of Kennedy was an unfair labor prac-
tice and as I have also found that Respondent violated
Section 8(a)(1) of the Act by various statements made to
employees in November and December, I therefore con-
clude that the strike which commenced on January 3,
1980, was an unfair labor practice strike. AI.L.R.B. v. Bir-
mingham Publishing Company, 262 F.2d 2, 9, 10 (5th Cir.
1959); cf. Romo Paper Products Corp., 208 NLRB 644,
653, 654 (1974).
On February 27, the strikers unconditionally offered to
go back to work. At that time, Respondent accepted this
offer from most of the strikers who did return to work.
However, Respondent refused to reinstate Neubauer,
Barrett, and Rosenfeld on the grounds that they had al-
legedly been involved in strike misconduct. As to DiPas-
quale, although Respondent did reinstate him, he was
reassigned the next day from being a truckdriver to
being a utility man. (During the strike Respondent had
hired another man to be a truckdriver to replace DiPas-
quale.) Although DiPasquale did not suffer a reduction
in his wage rate as a result of this reassignment, it is evi-
dent that DiPasquale preferred his former position as a
truckdriver. Additionally, he testified that as a utility
man he did not work overtime which he had done as a
truckdriver.
PACE OLSMOBILE, INC I011
It is well settled that employees who engage in an
unfair labor practice strike are entitled to reinstatement
to their former positions of employment upon their un-
conditional offer to return to work. Mastro Plastics Corp.,
et al. and French-American Reeds Mfg. Co. Inc. v.
NL.R.B., 350 U.S. 270, 278 (1956). This duty to unfair
labor practice strikers includes the duty to recall such
employees even if requiring the discharge of strike re-
placements. General Drivers and Helpers Union, Local 662
affiliated with the International Brotherhood of Teamsters.
Chauffeurs. Warehousemen and Helpers of America [Rice
Lake Creamery Company] v. N.L.R.B., 302 F.2d 908, 911
(D.C. Cir. 1962), cert. denied 371 U.S. 827. I therefore
conclude that by failing to recall DiPasquale to his
former position as a truckdriver when he offered to
return to work, Respondent discriminated against him in
violation of Section 8(a)(1) and (3) of the Act. Although
it is not clear from this record the extent to which Di-
Pasquale may have suffered a loss of earnings due to his
reassignment, such loss, if any, may be determined at the
compliance stage of the proceeding by calculating the
amount of overtime worked by the two truckdrivers em-
ployed by Respondent or by DiPasquale's replacement
from February 27, 1980, to such time as DiPasquale is
offered his former position of employment, less the
amount of overtime he may have worked in his position
as a utility man.
With respect to Barrett, Neubauer, and Rosenfeld, Re-
spondent argues that they should be disqualified from re-
instatement because of their alleged strike misconduct. In
this regard, the Board in General Telephone Company of
Michigan, 251 NLRB 737 (1980), reiterated the legal
principles applicable to strikes and alleged strike miscon-
duct. In pertinent part, the Board stated:
The law is clear that when an employer disci-
plines an employee because he has engaged in an
economic strike, such discipline violates Section
8(a)(3) and (1) of the Act. An employer may defend
its action by showing that it had an honest belief
that the employee disciplined was guilty of strike
misconduct of a serious nature. If the employer is
able to establish such a defense, then the General
Counsel must come forward with evidence that
either the employee did not engage in the conduct
asserted, or that such conduct was protected. The
burden then shifts back to the employer to rebut
such evidence. While Section 7 and 13 of the Act
grant employees the right to strike, picket, and
engage in other concerted activity for their mutual
aid and protection, not all conduct which occurs in
the course of a labor dispute is within the purview
of Section 7 and 13.
* * *
In short, the seriousness of each act of miscon-
duct alleged must be analyzed and the cases of mere
"animal exuberance" differentiated from those in
which the misconduct is so flagrant or egregious as
to require subordination of the employee's protected
rights in order to vindicate the broader interests of
society as a whole. And while an employer may
premise its belief of striker misconduct on reports
from its guards and other written reports, it cannot
rely upon a mere showing of general violence and
destructive activity. It must rely instead on specific
misconduct of the strikers whom it disciplined. The
mere fact that there may have been misconduct en-
gaged in by some strikers does not without more
impute culpability to the individual employees disci-
plined. Moreover, unauthorized acts of violence on
the part of individual strikers are not chargeable to
other strikers in the absence of proof that identifies
them as participating in such violence.
We note in passing that the burden of establishing
an "honest belief' of misconduct requires more than
the employer's mere assertion that an "honest
belief' of such misconduct was the motivating force
behind the meting out of discipline. Meeting the
burden also requires more than a general statement
about the guidelines used in establishing the alleged
"honest belief." Rather, it requires some specificity
in the record, linking particular employees to partic-
ular allegations of misconduct.
The principles described above relating to economic
strikes are also applicable to unfair labor practice strikes,
except that in the latter case the Board in determining
whether to disqualify a striker's right of reinstatement
will also balance the severity of the strike misconduct
with the severity of the employer's unfair labor practices.
Transportation Enterprises Inc., 240 NLRB 551, 557
(1979); Coronet Casual. Inc., 207 NLRB 304, 305 (1973).
With respect to Barrett. Respondent asserts that be-
cause he hit the showroom window on December 25 this
is sufficient to warrant his disqualification from reinstate-
ment. I do not agree. Whether Barrett intended to hit the
window with enough force to break it, is in a way irrele-
vant as no damage was in fact done. While the record
does indicate that this window was later broken, there is
no direct evidence to link this action to any of the strik-
ers and no evidence of any kind to link this action to
Barrett. Accordingly, I find that Respondent has not met
its burden regarding Barrett and conclude that by deny-
ing him reinstatement on February 27 Respondent violat-
ed Section 8(a)(1) and (3) of the Act.
Regarding Rosenfeld, Respondent asserts that he
should be disqualified for reinstatement because he alleg-
edly threw an object which damaged a car, because he
allegedly threatened a truckdriver, and because he
blocked the entry of a truck making a delivery to a lot
owned by Respondent.
As to the alleged threat, Dedivanovic testified that on
one occasion the driver of the car in which DiPasquale
was a passenger threatened him with physical violence.
However, apart from his description of the driver as a
short chubby man, he could not offer any further identi-
fication. With respect to the blocking incident, the evi-
dence established that, when the truck tried to enter the
lot, Rosenfeld drove his car in such a way as to prevent
PACE OLDSMOBILE. INC loll
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its entry. However, the evidence established that this
blockage was of a short duration and was isolated in
nature. See Owen Joist Corporation, 248 NLRB 589, 595
(1980).
The incident involving the BMW is, in my opinion,
more serious if it happened. It nevertheless seems to me
that Respondent's witness gave somewhat conflicting ac-
counts of this event. It is clear for example, that what-
ever the object was, it could not be found. As to the fail-
ure to find the object, Mary Pacetti explained that there
were pot holes and broken up concrete at the place
where the BMW was parked. However, this assertion
was contradicted by Larry Herrmann who testified that
the ground where the car was parked was smooth. I
might also add that the description of this event by
Larry Herrmann seems to defy the laws of nature. He
pointed out that the car was parked next to a fence
which was about 7 feet high. He demonstrated that Ro-
senfeld threw the object with great force in a hurling
motion on a trajectory which started from below the
fence and then crossed its top. Assuming that the object
was of a weight and size to be thrown in such a manner
(like a baseball) it would seem to me that its trajectory
would have carried it far beyond the BMW, which was
parked next to the fence. On the other hand, if the object
was sufficiently large and heavy, it could not have been
thrown in the manner described by Herrmann and if it
had hit the trunk of the car it could not have bounced so
far as to have made its recovery impossible. Inasmuch as
the testimony of Respondent's witnesses leaves me with
substantial doubt as to the allegation that Rosenfeld
threw an object over the fence which damaged the car
and as Rosenfeld credibly denied the incident, it is con-
cluded that Respondent has not met its burden of proof
on this matter. Also, it is my opinion that Respondent
has not shown that Rosenfeld was the author of the
threat to Dedivanovic or that the truck-blocking incident
was of a serious nature. I therefore conclude that, by
failing to reinstate Rosenfeld on February 27, Respond-
ent violated Section 8(a)(l) and (3) of the Act.
As to Neubauer, the testimony of Respondent regard-
ing his alleged misconduct was illicited through Larry
and Edward Herrmann. In summary, they testified that
they observed Neubauer approach a vehicle on the lot,
put his hand next to the car door, and then appeared to
put something in his pocket. They further testified that
when they examined the car they saw that there was a
scratch made on the door. Neither actually saw Neu-
bauer touch the car door which was facing away from
the point of their observation and neither actually saw
any type of object in Neubauer's hand. As Neubauer cre-
dibly denied this allegation and as the testimony of Re-
spondent's witnesses is not, in my opinion, sufficiently
persuasive to attribute the scratch to Neubauer's con-
duct, it is my conclusion that Respondent has not carried
its burden on this issue. Accordingly, I conclude that by
failing to reinstate Neubauer on February 27, Respond-
ent violated Section 8(a)(l) and (3) of the Act.
E. The 8(a)(5) Allegation
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U. S. 575
(1969), the Supreme Court distinguished between three
categories of cases as to the propriety of granting a bar-
gaining order. The first category involves the "excep-
tional" cases where "outrageous" and "pervasive" unfair
labor practices are committed. The second category con-
cerns the "less pervasive practices" that have a tendency
to undermine majority strength and impede the election
process. In this second category the Court concluded
that a bargaining order would be appropriate to remedy
an employer's unlawful conduct making a fair election
unlikely where at some point the Union had majority
support among the employees. The third category of
cases concerns those in which minor or less extensive
unfair labor practices have been committed, having a
"minimal impact" on an election. In this last category
the Court held that a bargaining order is inappropriate to
remedy the violations committed.
Respondent argues that the alleged conduct, even if
committed, would not be sufficient to warrant the grant-
ing of a bargaining order. I do not agree. I have con-
cluded that Respondent illegally laid off employee
Robert Kennedy on November 28 and that on the same
day it illegally promised increased medical benefits
which were thereafter implemented in order to induce
employees to withhold their support for the Union. As
to the promises and grants of benefits, the Supreme
Court in V.L.R.B. v. Exchange Parts Co.. 375 U.S. 405,
409 (1964), stated:
The danger inherent in well-timed increases in
benefits is a suggestion of a fist inside a velvet
glove. Employees are not likely to miss the infer-
ence that the source of benefits now conferred is
also the source from which future benefits must
flow and which may dry up if it is not obliged.
Although some have suggested that the promising or
granting of benefits should not be a sufficient basis for
the granting of a bargaining order, the Board recently
stated in J. J. ewberry Co.. a Wholly Owned Subsidiary
of McCrory Corporation, 249 NLRB 991 (1980):
Respondent's grant of a substantial wage increase
to all unit employees in violation of Section 8(a)(1)
of the Act is sufficient to render it unlikely that a
fair election could be held. Thus, the Board has
long recognized that employees are not likely to
miss the inference that the source of benefits now
conferred is also "the source from which future
benefits must flow and which may dry up if not
obliged .... " Here, the unlawful grant of benefit
was only one of numerous unfair labor practices by
Respondent which were clearly designed to under-
mine the Union's majority status by promising to
grant, and actually granting employees much if not
all of what they were seeking from union represen-
tation. Accordingly, we find that a bargaining order
is necessary and appropriate to protect the majority
sentiment expressed through authorization cards and
to remedy otherwise the violations committed.
In the instant case, I have concluded that Respondent
has also violated the Act by threatening employees with
a loss of existing benefits if they selected the Union to
PACE OLDSMOILE, INC 1013
represent them, threatened to discharge employees, and
close the facility if a union came in, interrogated employ-
ees regarding their union activities and sympathies, and
illegally refused to reinstate unfair labor practice strikers.
Respondent's conduct in the aggregate would, in my
opinion, make the holding of a fair and free election im-
possible. To be sure, it cannot be said with absolute cer-
tainty that an election held after Respondent has reme-
died these unfair labor practices could not be conducted
or that the Union would have no chance of success.
Nevertheless, despite the fact that a determination of the
subjective impact of the Employer's conduct and the
possibility of holding a fair election is fraught with a
degree of uncertainty, that condition is one which was
caused by Respondent's conduct. Although the Supreme
Court in N.L.R.B. v. Gissel Packing Co., supra, noted that
sentiment for a union as expressed by signed authoriza-
tion cards may not be the most reliable test of a union's
majority support, the Court also noted that a lack of
desire for union representation as expressed in an elec-
tion which is tainted by serious employer misconduct is
an even more unreliable test of employees' sympathies.
Respondent also asserts that a bargaining order should
be withheld because of the Union's conduct during the
strike. In Herbert Bernstein, Alan Bernstein, Laura Bern-
stein, a co-partnership d/b/a Laura Modes Co., 144 NLRB
1592 (1963), the Board stated:
We do not, however, deem it appropriate to give
the Charging Union the benefit of our normal af-
firmative bargaining order in the circumstances of
this case. For we cannot, in good conscience, disre-
gard the fact that, immediately before and immedi-
ately after it filed the instant charges, the Union evi-
denced a total disinterest in enforcing its representa-
tion rights through the peaceful legal process pro-
vided by the Act in that it resorted to and/or en-
couraged the use of violent tactics to compel their
grant. Our powers to effectuate the statutory policy
need not, we think, be exercised so single-mindedly
in aiming for remedial restoration of the status quo
ante, that we must disregard or sanction thereby
union enforcement of an employer's mandatory bar-
gaining duty by unprovoked and irresponsible phys-
ical assaults of the nature involved here. We recog-
nize of course that the employees' right to choose
the Union as their representative survives the
Union's misconduct. But we believe it will not prej-
udice the employees unduly to ask that they demon-
strate their desires anew in an atmosphere free of
any possible trace of coercion. Our order here and
the voluntary agreement of the Union, as part of its
October 29, 1962, settlement of the 8(b)(l)(A)
charges filed against it, to refrain from any and all
misconduct of the kind mentioned in the charges,
will, we believe, afford the employees with the de-
sirable conditions for making their free choice. We
conclude that, in the particular circumstances of this
case, the policies of the Act and the legitimate inter-
ests of the public and the parties will best be served
by denying to the Union the right to invoke our
statutory processes in aid of a demand for recogni-
tion as bargaining representative of Respondents'
employees unless and until it demonstrates its ma-
jority among those employees through the Board's
election procedures.
Although the Board in Laura Modes Co., supra, with-
held a bargaining order, it has also stated that this would
constitute "an extraordinary remedy" against a union
which would otherwise be entitled to a bargaining order.
As pointed out in Daniel A. Donovan. Charles Brennick
and John Brennick, Co-Partners doing business under the
trade name and style of Daniel A. Donovan, d/b/a New
Fairview Convalesant Home, 206 NLRB 688, 689 (1973),
enfd. 520 F.2d 1316 (2d Cir. 1975):
We do not condone any picket line violence, and
the processes of the Board are available to prevent
its recurrence .... But we are also reluctant to
deprive a substantial group of employees of the
benefits of collective bargaining because of the mis-
conduct of a few miscreants. Here, looked at in per-
spective, there were but few instances of miscon-
duct by a relatively small proportion of strikers . . .
against a background of Respondent's frequent and
recurring unfair labor practices. Viewed in that
light . . . we have concluded that the extraordinary
sanction of withholding an otherwise appropriate
remedial bargaining order would not best effectuate
the policies of the Act.
In Maywood Plant of Grede Plastics, a Division of Grede
Foundries, Inc., 235 NLRB 36 (1978), the Administrative
Law Judge reviewed many of the cases on this issue.
The Administrative Law Judge's analysis reveals that the
Board has relied on a number of factors as follows; the
extent of the Union's interest in pursuing legal remedies,
the extent to which the evidence shows deliberate plan-
ning of violence and intimidation on the part of the
Union, the extent to which the assaults or other miscon-
duct were provoked, the duration of the Union's con-
duct, and the relative gravity of the Union's misconduct
vis-a-vis the Employer's misconduct. In the instant case,
except to the extent that the evidence discloses that strik-
ing employee Mulrooney threw nails in the driveway
and the incident where Barrett hit the showroom
window, the evidence is insufficient to disclose that the
other property damage suffered by Respondent and its
employees was attributable to any union representatives
or to any particular strikers. Indeed, as a general matter,
Respondent's evidence showing attribution of this
damage was by way of evidence indicating that prior to,
and after the strike, it suffered less damage due to van-
dalism. Whether such circumstantial evidence is suffi-
cient to impute the cause of such damage to the Union
is, to a degree speculative. However, even if such prop-
erty damage were attributable to the strikers and/or the
Union it does not seem to me that this conduct was of
such an eggregious nature or was without adequate
remedy by other means9 so as to preclude the employees
" Sec 9(h)l)A) of Ilie Act culd providc a rcnlmedI fir 1I1n actto 'If
properli damnage AlsoI nothing in this Act %%ould preempt the Employer
(Continued
PACE OLDSMOBILE, INC
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from enjoying their collective-bargaining rights. I there-
fore shall reject Respondent's contention on this issue
and grant General Counsel's request for a bargaining
order.
Having concluded that Respondent is obligated to bar-
gain with the Union I shall recommend that the bargain-
ing order be retroactive to the date of the Union's
demand for recognition. I therefore shall also conclude
that when the Company, in January 1980, took over the
full cost of the medical insurance, it unilaterally granted
a benefit without consultation or bargaining with the
Union, in violation of Section 8(a)(l) and (5) of the Act.
Taylor Bros., Inc., 230 NLRB 861 (1977); Broadmoor
Lumber Company, 227 NLRB 1123 (1977).
Upon the foregoing findings of facts and upon the
entire record herein and pursuant to Section 10(b) of the
Act, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Pace Oldsmobile Inc., is and has been
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Amalgamated Local Union 355 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time service employ-
ees employed by Respondent at its facility located at 25
Main Street, New Rochelle, New York, exclusive of all
office clerical employees, salesmen, guards and supervi-
sors as defined in Section 2(11) of the Act constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
4. At all times since December 4, 1979, the Union has
been the exclusive collective-bargaining representative of
the employees in the above described unit within the
meaning of Section 9(a) of the Act.
5. By laying off Robert Kennedy on November 28 be-
cause of his membership in or activities on behalf of the
Union, Respondent violated Section 8(a)(l) and (3) of the
Act.
6. By promising and granting medical insurance cover-
age at Respondent's expense and by promising other
benefits such as increased overtime and early entry into
Respondent's pension and profit-sharing plan in order to
induce employees to withhold their support for the
Union, Respondent has interfered with its employee's
Section 7 rights and violated Section 8(a)(1) of the Act.
7. By threatening the discharge of employees who sup-
port the Union and by threatening to close its facility if
the Union was selected as the employees' collective-bar-
gaining representative, Respondent violated Section
8(a)(1) of the Act.
8. By interrogating employees regarding their member-
ship in, or support for the Union, Respondent violated
Section 8(a)(l) of the Act.
from suing the Union for damages or other appropriate relief arising from
the alleged commission of property damage.
9. By refusing, on December 4, 1979, to recognize and
bargain with the Union as the exclusive collective-bar-
gaining representative in the unit described above, Re-
spondent violated Section 8(a)(l) and (5) of the Act.
10. By unilaterally granting to its employees, on or
about January 1, 1980, the benefit of assuming the full
cost of Blue Cross and Blue Shield insurance, Respond-
ent violated Section 8(a)(l) and (5) of the Act.
11. The strike which commenced on January 3, 1980,
was at all times caused and prolonged by Respondent's
above-described unfair labor practices and was an unfair
labor strike.
12. By refusing to reinstate strikers Kenneth Barrett,
Eugene Rosenfeld, Richard Neubauer, and Frank DiPas-
quale to their former positions of employment upon their
unconditional offers to return to work, Respondent dis-
criminated against employees for engaging in protected
concerted activity and for supporting the Union, and
thereby violated Section 8(a)(1) and (3) of the Act.
13. The promises and grants of wage increases to em-
ployees Barrett and DiPasquale were not violative of the
Act.
14. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
It is established that valid offers of reinstatement were
made by Respondent to employees Neubauer and Barrett
on or about April 16, 1979. It also is established that
these offers of reinstatement were declined by the two
employees. It therefore is concluded that it is not appro-
priate to order Respondent to offer reinstatement to
these employees and I conclude that the backpay period
for them was tolled on the date of the offer. Regarding
DiPasquale, I shall, as noted above, recommend that Re-
spondent offer to reinstate him to his former position of
employment as a truckdriver and to make him whole for
the loss of any overtime earnings he may have suffered
from February 27, 1980. As to Rosenfeld, I shall recom-
mend that Respondent offer to reinstate him to his
former position of employment and that Respondent
make him whole for any loss of earnings he may have
suffered from February 27, 1980. Additionally, I shall
recommend that Respondent offer reinstatement to
Robert Kennedy and make him whole for any loss of
earnings he may have suffered since November 28, 1979.
Backpay in all instances shall be computed in the manner
prescribed by F. W Woolworth Company, 90 NLRB 289
(1950), plus interest as set forth in Florida Steel Corpora-
tion, 231 NLRB 651 (1977).
IT IS FURTHER RECOMMENDED that Respondent be or-
dered to recognize and bargain with the Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the unit found appropriate herein.
[Recommended Order omitted from publication.]