Raycor Co.

National Labor Relations Board - Board Decisions

May 16, 1980

249 N.L.R.B. 565 (N.L.R.B. 1980)

RAYCOR CO. 565
Raimund Corssen Co., Inc. d/b/a Raycor Co. and
Local 259, United Automobile, Aerospace and
Agricultural Implement Workers of America
and Russell Labriola. Cases 29-CA-5892 and
29-CA-5892-2
May 16, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On December 31, 1979, Administrative Law
Judge Robert G. Romano issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and the General Counsel filed
cross-exceptions. I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
cross-exceptions, and has decided to affirm the rul-
ings, 2 findings, 3 and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order. 4
' Local 259, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, a Charging Party in this proceeding, filed a
letter stating that "we adopt and affirm all the exceptions submitted to
the Board by the General Counsel."
2 Member Penello notes that the Administrative Law Judge deter-
mined that backpay for the discharged strikers be computed from Sep-
tember 8, 1977-the date of the discharges. Member Penello would
adhere to the more than 30 years' Board precedent set forth in his dis-
senting opinion in Abilities and Goodwill, Inc., 241 NLRB No. 5 (1979),
and find that employees who are unlawfully discharged while on strike
must indicate abandonment of the strike and a willingness to return to
work in order to initiate the running of the backpay eligibility period.
Unlike his colleagues, Member Truesdale would date Respondent's bar-
gaining obligation from August 10, 1977, the date of the Union's demand
for recognition with a majority showing, which demand Respondent re-
fused. See Chandler Motors, Inc., 236 NLRB 1565, 1566, fn. 5 (1978).
3 Respondent and the General Counsel have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolu-
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings.
In adopting the Administrative Law Judge's finding that the discharges
of Algerio and Stone were not violative of Sec. 8(a)(3) of the Act, Mem-
bers Jenkins and Truesdale rely on his finding that the discharges were
solely for cause.
Member Penello notes that in the section of the attached Decision ana-
lyzing the discharges of Algerio and Stone, the Administrative Lass
Judge cited General Tire of Miami Beach. Inc. v. .L.R.B., 332 F.2d 58,
60 (5th Cir. 1964), for the general proposition that a discharge may be an
unfair labor practice if an unlawful motive played "any part" in the man-
agerial decision. Member Penello further notes that he does not find it
necessary to adopt the Administrative Law Judge's reference to the "in
part" test in order to affirm the conclusion that Algerio's and Stone's ter-
minations were not violative of Sec 8(a)( 3 )
4 Although we adopt the Administrati.e Law Judge's recommended
broad cease-and-desist Order. we do not rely oil Abhilities and Gdwill,
Inc., supra at fn 14 In Hlickmott Foods. Inc., 242 NLRB No 177 (1979),
249 NLRB No. 78
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Raimund Cors-
sen Co., Inc. d/b/a Raycor Co., Oyster Bay, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, except that the attached notice is
substituted for that of the Administrative Law
Judge.
the Board modified its prior policy of issuing such orders in all cases in-
volving discriminatory discharges and concluded that "each case will be
analyzed to determine the nature and extent of the violations committed."
In the instant case we find that the severe nature of Respondent's dis-
charges (dissipating one-half of the unit), coupled with other violations,
warrants broad injunctive relief
The Administrative Law Judge failed to include in his notice that por-
tion of his recommended Order providing for the reinstatement of em-
ployees Labriola and Falabella. We shall modify the Administrative Law
Judge's notice to correct this inadvertent error.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees
concerning their union interests, sympathies,
and activities, and as to the union interests,
sympathies, and activities of other employees
in a manner constituting interference, restraint,
or coercion of rights under Section 7 of the
National Labor Relations Act, as amended.
WE WILL NOT tell our employees that with
a union in the shop some employees risk re-
ceiving lower classifications and suffering re-
sultant reduced wages.
WE WILL NOT promise employees an incen-
tive plan or other economic benefits in a
manner which interferes with the free exercise
of Section 7 rights to join a union.
WE WILL NOT threaten our employees who
may engage in a strike with job loss if they do
not abandon their lawful strike action and
return to work; nor will we discharge or sub-
sequently refuse to reinstate any striking em-
ployees because they refuse to abandon their
lawful strike action and return to work.
WE WILL NOT refuse to recognize and bar-
gain collectively concerning rates of pay,
wages, hours, and other terms and conditions
of employment with Local 259, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, as the exclusive bargain-
RAYCOR Co.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing representative of its employees in the fol-
lowing appropriate bargaining unit:
All service shop employees including all
parts department employees, mechanics,
helpers and cleaners employed by the Em-
ployer at its location at 243 Pine Hollow
Road, Oyster Bay, New York; excluding all
office clerical employees, salesmen, guards
and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL, upon request, recognize and bar-
gain collectively in good faith with Local 259,
United Automobile, Aerospace and Agricul-
tural Implement Workers of America, as the
exclusive bargaining representative of our em-
ployees in the above-described unit with re-
spect to rates of pay, wages, hours of work,
and other terms and conditions of employ-
ment; and WE WILL, upon request, embody in
a signed agreement any understanding that
may be reached.
WE WILL offer Russell Labriola and Paul
Falabella immediate and full reinstatement to
their former positions or, if such positions no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
other rights and privileges previously enjoyed.
WE WILL make Russell Labriola and Paul
Falabella whole for any loss of earnings they
may have suffered by reason of our unlawful
discharge and refusal to reinstate them, with
interest.
RAIMUND CORSSEN Co., INC. D/B/A
RAYCOR Co.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge:
These consolidated cases were heard in Brooklyn, New
York, on April 10-13, 19, and 20, 1978. The charges in
Cases 29-CA-5892 and 29-CA-5892-2 were filed on
September 6 and October 7, 1977, respectively. The
consolidated complaint issued on October 31, and, as
amended at hearing, alleges extensive violation of Sec-
tion 8(a)(), (3), and (5) of the National Labor Relations
Act, as amended; and alleges further that certain employ-
ees of Respondent engaged in an unfair labor practice
strike from September 6 until September 28. Respondent,
by answer filed November 16, has denied the commission
of any unfair labor practices.
I All dales are in 1977 unless indicated to the contrary.
Upon the entire record, including my observation of
the demeanor of the witnesses,
2 and after due considera-
tion of General Counsel's (oral) arguments and Respond-
ent's complete brief
2 as offered on June 13, 1978, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
The Company (herein Raycor or Respondent), a New
York corporation, maintains its principal office and place
of business at Pine Hollow Road in the town of Oyster
Bay, County of Nassau, New York, where it is engaged
in the sale, repair, and distribution of automobiles, auto-
mobile parts, and related products. During the past year,
Respondent derived gross revenues therefrom in excess
of $500,000; and, during the same period, Respondent re-
ceived related goods valued in excess of $50,000 at its
Pine Hollow Road plant directly from points located
outside the State of New York. The complaint alleges,
the answer admits, and I find that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. Respondent, at the
hearing, has also admitted that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act. I
so find.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Respondent's operations and personnel
The Respondent is essentially a small automobile deal-
ership which sells BMW cars and which also generally
services and repairs BMW, Rolls-Royce, Mercedes-Benz,
and certain other English-make cars. Raimund Corssen,
Sr., is Raycor's president and principal stockholder (65
2 Considerable conflict affecting issues of disputed material fact is re-
vealed in this record in the testimony of a number of witnesses presented
by both General Counsel and Respondent; and that conflict included sev-
eral significant and perplexing instances of testimonial variances and/or
individual confusion on the part of certain of those witnesses. Where
major conflicts are deemed to exist, the essence of the given witnesses'
versions are specifically identified and/or summarized and an appropriate
resolution then made of significant disputed facts on the basis of consider-
ation of the entire record, but with such reasons immediately set forth as
are deemed sufficient for the matter under consideration. In this regard,
and in general, I have carefully considered the demeanor of the wit-
nesses; and I have also been attentive to the possible effects of bias in a
particular witness' recollection in evaluating that witness' testimony.
Where deemed warranted, I have also given greater weight to documen-
tary corroboration and to reasonable plausibilities flowing therefrom,
or
from other facts, uncontestedly or otherwise persuasively evidenced of
record. Where I have found a witness' demeanor a significant factor, if
not dispositive, on an issue in a given area, or, where I have discerned
upon careful review of the record made that there is clear warrant to
conclude that one individual's testimony on a particular matter is
shown
generally less reliable than another because of such factors of plausibility,
inconsistency, and/or confusion thereon, I have so indicated. Finally, it
seemed especially appropriate in this matter to keep in mind the oft-
quoted observation of Judge Learned Hand in such matters in N.L.R.B.
v. Universal Camera Corporation, 179 F.2d 749, 754 (2d Cir 1950), "It
is
no reason for refusing to accept everything that a witness says, because
you do not believe all of it; nothing is more common in all kinds of judi-
cial decisions than to believe some and not all."
3 Through an apparent inadvertent brief collating error, an initially in-
complete brief was earlier filed by Respondent.
-
S w
RAYCOR CO. 567
percent), and Hans Schmal is Respondent's vice presi-
dent and the sole other significant stockholder (35 per-
cent). Schmal, with a mechanic's background, has as
well served operationally as Raycor's service manager
since about 1973. President Corssen essentially was en-
gaged in and directed new car sales; and he exercised
overview of the showroom, and, in general, the fiscal
end of the business. Schmal supervised principally the
service area, including the parts room, though both su-
pervised aspects of the parts department. Norton Rosen-
berg, a professional independent accountant since 1954,
has been engaged by Respondent as its accountant since
Raycor's inception in 1966. The record reveals that
Rosenberg was a regular customer of Respondent, vis-
ited its premises every week, had privilege of access to
the shop, and regularly received a 10-percent discount,
presumably by virtue of being Respondent's regular ac-
countant, as well as President Corssen's personal friend.
Even more significantly, the record has revealed clearly
herein that there were several incidents or occasions
when Rosenberg was contacted by either Corssen Sr. or
Schmal and unquestionably involved by them directly in
Raycor's various business responses to the matter of em-
ployees' efforts to organize a union in Respondent's serv-
ice shop.4 Indeed, called as a witness by General Coun-
sel, President Corssen specifically conceded that Rosen-
berg had been authorized to speak to employees on
behalf of Respondent in a certain meeting of employees
held on Respondent's premises on August II. I am fully
convinced on this record, and I find, that Rosenberg was
both business confidant and an agent of Respondent au-
thorized to act in all such purposes on Respondent's
behalf.
As of early August, Raycor employed three mechanics
(Dolibar Rezek, Stephen Gourlay, and Richie Pettinato),
two mechanic helpers (Raymond Phillip Stone and
Russel Labriola), 5 and two cleaners (Paul M. Falabella
and Steven Pomerantz).
Joseph A. Algerio was initially hired and placed in
charge of Raycor's parts room in March 1976. Algerio's
duties generally covered (controlled) distribution of parts
to service employees in the effecting of unit repairs in
the shop, including (routinely) effecting any required
outside repair, the wholesale of stocked parts to other
shops in the area, and the retail sale of parts to custom-
ers. In that connection, Algerio ran and maintained some
inventory cards in accounts kept on certain parts, and he
was responsible as well for inventory control of certain
specialized tools regularly made available and used by
the mechanics in Respondent's shop. Algerio's major re-
sponsibilities also included the ordering of parts (two to
three times a month); i.e., to replace depleted stock
4 It would reasonably appear this may have been due to Corssen's and
Schmal's (though the latter less so) seeming lack of fluency or ease with
spoken English, which I find was on occasion evidenced at the hearing.
I Although Stone and Labriola viewed themselves as qualified and ex-
perienced mechanics, corroborated testimony of Schmal as well as Re-
spondent's employee records reveal that they were hired as mechanic
helpers. Additionally, the record otherwise reveals that they did not have
the formal training of either mechanic Gourlay or Rezek, and both had
been initially hired at a lower rate than Pettinato, the latter begin also
initially hired as a mechanic. (Neither Pettinato nor Rezek testified in this
proceeding.)
which was to be regularly maintained in inventory, or to
obtain nonstock items on a specific order to effect special
repairs." Algerio also received and maintained on file all
delivery tickets (invoices) from parts and service suppli-
ers, pending monthly billing and payment, as also dis-
cussed further infra. Although commencing about Febru-
ary Algerio had begun receiving a monthly 2-percent
sales commission on certain sales, he essentially was
hourly paid and had regular work hours beginning at
8:30 a.m., 5 days a week, the same as the service employ-
ees; and further, as was the case with the latter, Schmal
was his immediate day-to-day supervisor. I am thus fully
convinced on the basis of the above and the entire
record herein that during material times Algerio neither
possessed nor had exercised any supervisory authority,
and that he was thus not a supervisory employee within
the meaning of the Act, nor a managerial employee, but
rather at all times material herein was an employee
whose function was essentially that of a parts/inventory
clerk, or plant clerical, performing essentially routine
duties; and I find that he clearly had a community of in-
terest with the service employees with whom he came in
daily contact. Michael Corssen, a high school student
and one of two sons of President Corssen employed by
Raycor at this time, was also employed as a part-time
summer parts man in the partsroom.7
Serving as Respondent's sales force in this period, in
addition to President Corssen, were Carl Holsworth (a
full-time salesman) and President Corssen's older son,
Raymond Corssen, Jr. Although acknowledging that he
had also worked on occasion in the back in the service
shop area with Schmal (particularly in serving customers
in scheduling the work), Corssen Jr. related that he did
so even then with exposure to new sales opportunities in
mind. During this summer period, his regular work
hours, unlike service unit employees, were from 8:30
a.m. to 7 p.m., Monday through Saturday, with Thursday
regularly off. I am fully convinced by this record, apart
from any other consideration, that Corssen Jr. was em-
ployed essentially as a salesman,8 and that he thus would
have been excluded during this period on that account
6 Understandably, most of the parts carried in inventory were BMW
parts, though there was apparently some limited stock carried for Rolls-
Royce and Mercedes-Benz cars. Although it was Algerio who essentially
placed all such parts orders, principally with BMW of Nonh America,
both Schmal and Corssen had frequent occasions to review Algerio's or-
dering, as discussed more fully infra.
I Prior to this summer Michael Corssen had apparently worked part
time, though on Saturdays only. During the summer, he had worked parn
time from 8:30 a.m. to 5 p.m.; and more recently had worked in the
partsroom where, under the tutelage of Algerio, he had learned the pro-
cedures in the parts department. I credit Michael Corssen that, during
this time, he had worked with customers, answered the phones, and
cleaned the parts and showrooms, but that he did mostly paperwork and
a lot of inventory work, which had included during this period (August)
making additional space for the storage of more parts. Although he
worked as late as September 6, the time when certain picketing com-
menced, discussed infra, Michael Corssen shortly thereafter returned to
high school to continue his education.
s As of June, Corssen Jr. had just completed a business administration
course in (apparently) a 2-year college, at which, for some undisclosed
period, he had previously boarded. However, in the prior year he had
worked part time as a salesman, and, during the summer of that prior
year, full time as a salesman. I credit his testimony that, upon completion
of his second year of college, that is, from (present) June until September
(at least the 6th), he had worked 90 percent of his time as a salesman.
RAYCOR CO.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the service shop unit found appropriate hereinafter.
Rounding off Raycor's employed personnel were Rita
Marie Benson (secretary-bookkeeper) and Evelyn Stad-
nyck (a part-time office clerical employee).
2. The employees' organizational activity
It was either late July or early August when several
Raycor employees initially began talking amongst them-
selves about a union. However, the record reveals con-
vincingly that it was Algerio who thereafter had made
the first contact with the Union and then had arranged
for the first meeting of employees with the Union. Thus,
Algerio recalled that it was the beginning of August
when he called the Union and first spoke with a secre-
tary and arranged initially to have someone from the
Union call him back later on his inquiry. Stephen Rich-
ard Elliott, a business agent of Local 259 for some 5-1/2
years, confirms Algerio that his first contact with
Raycor employees was a phone conversation he had
with Algerio on August 6 or 7, and that Algerio had ar-
ranged with him to hold a meeting with employees on
August 9 to discuss joining the Union. Algerio thereupon
notified certain employees about the meeting. The meet-
ing was subsequently held as scheduled, immediately
after work at or about 5:15 p.m. on August 9 (a Tues-
day) at Dell's Bar, a local pub located less than a mile
from Raycor's premises. In attendance at this first meet-
ing representing the Union were Elliott and Carlo Oli-
veri, another business agent of Local 259.9 The employ-
ees in attendance at the first union meeting were Algerio,
Falabella, Labriola, Pettinato, Pomerantz, and Stone.
(Employees Gourlay and Rezek did not attend the meet-
ing.) The foregoing findings of fact are based upon essen-
tially mutually consistent and credited testimony of Busi-
ness Agent Elliott, and employees Algerio, Falabella,
Stone, and Gourlay, and, only to the extent consistent
therewith, Labriola. I specifically do not credit Labrio-
la's recollection that the first three union meetings were
held on three successive Fridays.' °
9 Carlo Oliveri did not testify in this proceeding. In that regard, in the
third volume of the record in this proceeding at 492 (following a change
of official reporter), Carl Oliveri is incorrectly reflected as returning to
the stand rather than Joseph A. Algerio, the immediately preceding wit-
ness. Although no counsel has moved to correct the record in that
regard, on my own motion I correct the record in that respect. I have
further carefully evaluated the certain subsequent record references (in
Vol. 3) to Joe Oliveri and/or (simply) Oliveri in the light of the above
and in the light of the facts as revealed from the entire record otherwise
that there was no Joe Oliveri (nor any Oliveri) employed by Raycor at
this time, but that rather only a Joe Algerio (and Michael Corssen) was
employed in Raycor's parts department during this period.
10 Algerio testified that he notified all the shop employees, including
Gourlay and Rezek, and recalled that Rezek had told Algerio that he did
not want to have anything to do with the Union. Called as a witness by
Respondent, Gourlay in this area essentially corroborated that Algerio
had initially spoken to him about the Union, that Algerio had invited him
to attend the first union meeting, but that Gourlay had decided not to
attend it. Gourlay also testified that the employees had daily discussed
the Union at lunch, except when Dolibar Rezek or Corssen Jr. were pres-
ent. As Rezek did not testify, his lack of interest in the Union (as indicat-
ed by Algerio's uncontensted and otherwise corroborated testimony) is
wholly compatible with the employees' subsequent failure to include him
in their union discussions (as described by Gourlay). It was Falabella's
recollection that Algerio had contacted Gourlay about attending the
union meeting, but he was not sure about Rezek. Nonetheless, I credit
Algerio in the above particulars. However. I also credit the testimony of
Elliott (fully corroborated by Falabella and Labriola)
testified credibly that he explained the Union to the em-
ployees, displayed some sample contracts that the Union
had negotiated with other dealership, and discussed the
medical and pension plans, union pay scale, and insur-
ance. 1 Elliott then passed out union authorization cards.
He testified that he told the employees that he needed
the authorization cards to make a demand; that, if the
employees would sign union authorization cards, he
would then go to Respondent and demand recognition;
that, if they obtained recognition, then they would draw
up proposals; but that, if Respondent denied recognition,
he would use the cards to petition the Board for an elec-
tion. Elliott testified also that all six employees named
above signed union authorization cards at this first meet-
ing. Elliott was not corroborated in all these respects in-
dividually, but was comprehensively corroborated by the
employees. Labriola, the first employee witness called by
General Counsel (after Elliott), confirmed that he and all
the other employees had individually signed cards for
the Union at this meeting; Labriola then identified the
card he had personally signed. All the aforesaid cards for
employees Labriola, Algerio, Stone, Falabella, Pettinato,
and Pomerantz are in evidence. Each of the first four
above-named employees personally identified their own
cards, and they each also have mutually corroborated
Elliott in testifying generally that all the employees at
this meeting signed a card. (Indeed, the record reveals
specific testimony of employee Stone that he saw Pettin-
ato sign his card and return it.) On the basis of such
credible and mutally consistent testimony, I have no
hesitancy whatsoever in finding that all six named em-
ployees individually signed union cards. The individual
card declares on its face both an application for member-
ship in the Union and an unequivocal designation of the
Union as the collective-bargaining representative.' 2
The record otherwise reveals that Labriola on cross-
examination testified that he understood the card was a
register or attendance card, and on redirect examination
then explained that he had not read the card before he
signed it. He recalled that he was told the card was to
show who would vote for the Union and who was there,
but he could not remember if Elliott had told the em-
ployees what Elliott was subsequently going to do with
the cards. Labriola testified that he had initially told Al-
gerio that he would not mind a union in the shop.' 3 He
also testified that he wanted the Union to represent him.
In the absence of corroboration, I would place but cau-
tious reliance on the latter in view of the nature of prior
leading questions thereon. After reading the aforesaid au-
Michael Corssen and Raymond Corssen Jr., clearly uncontested to the
extent that they testified, that they were not previously aware of this
union meeting.
II In addition to also essentially corroborating Elliott's above benefits
explanations, Algerio adds that Elliott spoke in this meeting of just about
everything that the Union covered.
12 Each such card provides:
I hereby apply for membership in Local 259 U.A.W. International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America and authorize and designate said union to repre-
sent me for collective bargaining with my employer.
3 Labriola could not remember what Algerio had said to him earlier
about attending the union meeting
RAYCOR CO. 569
thorization card at the hearing, Labriola still could not
remember whether he had read it that evening or not.
Algerio subsequently testified that he had read his card
and signed it, and otherwise testified that Elliott had said
they were cards that he would take to the Labor Board
showing there was a majority of people in favor of
having a union come in. Algerio specifically denied that
Elliott had said the cards were just to show who had at-
tended the union meeting. (Algerio did not specifically
corroborate Labriola as to the latter's statements made to
him in regard to a union in the shop either at the meet-
ing or otherwise.) Falabella testified that he had read and
signed his card, and he also testified that he did not re-
member any mention of an attendance card, though he
testified also that Labriola had asked him thereafter what
he thought about the Union and Labriola seemed to
favor it. However, it was Falabella's testimony otherwise
that Elliott told them that the majority of the employees
had signed, and that he would notify Raycor and send a
telegram. According to Stone, the union representatives
told them at the time they passed out the cards that it
certified that the employees were giving them permission
to be the employees' bargaining agent in contract talks
with Raycor. Stone otherwise testified that in a prior dis-
cussion by employees in the shop he had heard Labriola
say that he would like to have the Union in the shop for
the money and the benefits, and recalled specifically that
at the meeting Labriola had made an inquiry about pay
rates. As earlier noted, neither Pettinato or Pomerantz
have testified in this proceeding.
On August 10 (Wednesday) Elliott, accompanied by
Oliveri, visited Respondent's premises between 9:30 and
10 a.m. and, in the absence of President Corssen (it being
his regular day off), spoke to Vice President Schmal. Ac-
cording to Elliott, Schmal told Elliott that he was in
charge, and Elliott then told Schmal that the over-
whelming majority of the employees had designated the
Union as their collective-bargaining representative, and
he demanded recognition. Elliott relates that Schmal re-
plied that he could not grant recognition; he would have
to talk to his attorney. Elliott told Schmal that he ex-
pected everything in the shop to remain in status quo,
and that no action would be taken against the employees.
According to Elliott, Schmal replied, "Fine." On the
same day Elliott sent a confirming wire demanding rec-
ognition, which was stipulated as received by Respond-
ent that very same day. 14
14 The wire message was actually received by phone on August 10 by
secretary-bookkeeper Benson, who wrote the message down and deliv-
ered it to Schmal. Benson also requested a written copy from the wire
service, which was received by Benson the next day, August II (Thurs-
day), and then delivered to President Corssen The said wire provided
THIS Wt I. CONFIRM our demand for recognition as bargaining repre-
sentative of the shop employees in your service dept.. made 8/10/77.
made after informing you that the undersigned union has been desig-
nated by the majority of such employees as there [sic] representative
for purposes of collective bargaining. We hereby request a meeting
to discuss terms and conditions of employment. If you have any
questions in regard to our majority status, we are willing to demon-
strate the same to any impartial person agreed to by management
and union. Suggest you call us immediatly for a meeting, 212-966
1920 or call our attorney Sipser. Weinstock. Harper. Dorn, 212-67 R-
2100
Schmal essentially confirmed the visit of the union
representatives on August 10, recalling that about 8:30-9
a.m. two men came into the garage and up to him, iden-
tified themselves as from the Union, and told him that he
should recognize the Union. Although Schmal could not
recall if they had then raised a claim to represent the em-
ployees, he acknowledges that he was aware of such
claim being made by them upon receipt of the telegram
which contained such a claim. Schmal also confirmed
that he told the union representatives that he could not
recognize the Union as he had a partner who was not in
that day, and with whom he would have to talk first;
and that he would try to get in touch with him. Schmal
also confirmed generally that the union representatives
told him that he was not allowed to do certain things.
3. An overview of the concurrent representation
case proceedings; and present case status
The petition in Case 29-RC-3937 was subsequently
filed by the Union on August 12, and a hearing/confer-
ence was in due course scheduled and held on August
25. In addition to the presence of a Board agent from the
Regional Office, present for the Union were Elliott and
the Union's attorney, and present for Respondent were
Schmal and Rosenberg. An agreement for a consent elec-
tion was thereupon executed by Respondent and the
Union, and it was approved by the Board's Regional Di-
rector for Region 29 on August 25. The consent election
agreement provided for an election to be conducted on
September 16 to determine whether the Union represent-
ed certain employees of Respondent in an appropriate
unit. The parties therein agreed that an appropriate unit
for the purpose of collective bargaining was:
Included: All service shop employees, including
all parts department employees, mechanics, helpers,
and cleaners, employed by Respondent at its loca-
tion at 243 Pine Hollow Road, Oyster Bay, New
York.
Excluded: All office clerical employees, salesmen,
and guards and supervisors as defined in the Act.
I further find that the above-described unit constitutes an
appropriate unit for collective bargaining as may be
deemed material herein.
Elliott has testified in the instant proceeding that Al-
gerio was the Union's committeeman at Raycor. Follow-
ing the discharge of Algerio on August 30 and Stone on
August 31, the Union filed the instant 8(a)(1) and (3)
charges on September 6, and a strike commenced at
Raycor on the same day, which lasted until approximate-
ly September 28. The aforesaid charge blocked the elec-
tion scheduled for September 16, which was subsequent-
ly canceled; Elliott testifying that the Union had con-
cluded that it could not proceed to an election with its
committeeman, Algerio, remaining (allegedly) wrongful-
ly discharged. The Union later requested permission to
withdraw its petition on October 5. On October 7, La-
briola filed individual 8(a)(1) and (3) charges herein (cov-
ering the discharges of Labriola and Falabella on Sep-
tember 6 and/or 8). By Regional Director Order dated
October 31, withdrawal of the petition, was approved
RAYCOR Co.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject to a reinstatement of the petition, if appropriate,
upon petitioning the Union's application after disposition
of the simultaneously issued consolidated 8(a)(l), (3), and
(5) complaint herein.
4. The complaint allegations
The complaint, as amended at the hearing, alleges that
Raycor, by certain acts of President Corssen, Vice Presi-
dent Schmal, and its agent, Rosenberg, on or about
August 10 (and on various other unknown dates), has un-
lawfully in violation of Section 8(a)(l): interrogated em-
ployees; offered and promised to its employees wage in-
creases, other benefits, and improvements in their work-
ing conditions; and threatened employees with plant clo-
sure. The complaint further alleges that Raycor has dis-
criminatorily discharged (and subsequently has failed and
refused to reinstate or offer to reinstate) Joseph Algerio
on August 29, Raymond Stone on August 30, Russell
Labriola on September 6, and Paul Falabella on Septem-
ber 8 in violation of Section 8(a)(3) and (1) of the Act.
Alternatively, General Counsel contends that Labriola
was also discriminatorily discharged on September 8. On
additional complaint allegations that the Union had earli-
er on August 9 been designated by a majority of the em-
ployees in the above appropriate unit as their collective-
bargaining representative and had made a demand for
recognition and bargaining on August 10 which Raycor
subsequently refused, the complaint finally alleges that
thereby and by all the above aforesaid conduct Raycor
has violated Section 8(a)(5) of the Act. 15
B. The alleged 8(a)(1) interference, restraint, and
coercion
Schmal testified credibly that, following his conversa-
tion with Elliott (on Wednesday, August 10), he called
Rosenberg and related to him the details of the visit of
the two union men; and Schmal has Rosenberg initially
suggesting that Schmal do nothing right then, but wait
and see what happened. Rosenberg's recollection con-
firmed essentially' 6 Schmal's report to him that the two
15 Concerning the 8(a)(5) complaint allegations, General Counsel has
contended that, in view of the (alleged) extensive 8(aX1) and (3) viola-
tions of the Act by Respondent herein, a remedial bargaining order
would be warranted in any event commencing as of August 10, the date
the demand was made and the alleged date that the initial unfair labor
practices commenced, or as of August II1, the alternative date General
Counsel contends that the alleged unfair labor practices are shown to
have commenced, General Counsel relying (in oral argument) for such
contentions on N.L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575 (1969),
and Trading Port, Inc., 219 NLRB 298 (1975).
16 The record reveals and I find that with certain exceptions Rosen-
berg was generally less convincing in testifying as to the date of certain
conversations than when testifying in respect to the substance of the con-
versations and/or incidents. Thus, for example, I am not persuaded by
Rosenberg's testimony on cross-examination that the initial call from
Schmal had occurred on August II1, but rather credit his recollection oth-
erwise of the circumstance of that first call as having occurred on Presi-
dent Corssen's day off, thus Wednesday, August 10. (Rosenberg recalled
that Schmal had not wanted to contact Corssen on that account.) I simi-
larly am not persuaded by and do not credit Rosenberg's further recollec-
tion that a certain subsequent meeting of Raycor officials with employees
occurred on the following Monday, August 15, rather than on the fol-
lowing day, Thursday, August 11. As to the latter event, on the basis of
the weight of the record evidence as a whole, I am persuaded that
Rosenberg was simply mistaken in recollection as to the interval of actual
men from the Union had come to see him, that the union
men had told Schmal that they were going to represent
Raycor employees or unionize the shop, and that Schmal
told Rosenberg that he did not know what to do about
it. According to Rosenberg, their first endeavor was to
find out if it was a bona fide union or something other-
wise. I credit Schmal's additional testimony that, later
that afternoon when Schmal received the Union's mes-
sage (which, as noted, was copied down over the phone
by Benson), he again called Rosenberg, who continued
to suggest that they wait until they received the actual
wire so they would be sure of what was in the telegram
because they did not know simply from business cards
(previously left by the union men) whether it was a real
union or not. (Schmal otherwise acknowledged convinc-
ingly that it was he who had later penciled in "bonifide
[sic] union" on the printed wire when it was received the
next day.) I thus credit the mutually consistent testimony
of President Corssen that the first he had heard about the
Union was when he returned to work on Thursday
morning, August 11, following his day off, at which time
Schmal informed him that two fellows had come in and
said they were union representatives and had left their
business cards; that Schmal had reported to him that the
men said they wanted to unionize the shop; and that
Schmal told Corssen that he did not know if it was real
or not, but that Schmal had not reported to him specifi-
cally that a claim was made by the union men to repre-
sent the majority of their employees. Nonetheless, Cors-
sen Sr. also acknowledged that he was aware from the
Union's wire that the Union had made a clear claim of
majority designation as bargaining representative of Re-
spondent's shop employees in the service department and
had made a demand for recognition. Corssen Sr. testified
that he was surprised.17
Algerio testified that Corssen Sr. and Rosenberg came
up to him one morning at his work station, that on that
occasion Rosenberg told Algerio that he had received
word that the Union was trying to get into the shop, and
that Rosenberg had then asked Algerio if he had any
knowledge of it. Algerio replied no. According to Al-
gerio, Rosenberg then asked Algerio if he would join
such a union and Algerio replied yes, because it would
help to pay for some medical bills. Rosenberg then asked
Algerio if he was involved, and Algerio replied no.
Rosenberg confirmed that there was an occasion when
he approached Algerio and asked Algerio: "Joe did you
hear anything about a union?"; and also "Do you know
if they came to any of the other fellows?" Rosenberg
also subsequently testified that he believed he did ask Al-
gerio also if he knew who was involved in it, and that
Algerio had replied no. However, in contrast with Al-
gerio's testimony essentially that he would join the
time passage, particularly in the light of party stipulation (with independ-
ent credible witness' testimony in support of same) that this subsequent
meeting with employees occurred on August 11II. Labriola's recollection
as to the timing of this event was even more faulty, his recalling it initial-
ly as some 20 days after union meeting, and as occurring in the morning
rather than late afternoon as recalled by all other witnesses.
A In view of the immediate subsequent actions of the Raycor officials,
I do not credit President Corssen's testimony that this development had
neither concerned nor bothered him, or that they did not immediately
take ii ',.riously.
RAYCOR CO. 571
Union because of medical benefits, Rosenberg testified
that Algerio volunteered that they would not come to
him because he was part of management. In rebuttal, Al-
gerio testified initially that he did not tell Rosenberg that
he was for management, but that when Rosenberg had
asked him what he knew about a union and would he
vote for them, Algerio had replied that he did not think
he was entitled to vote for them because he thought he
was part of management. Algerio acknowledged that his
status had been discussed and evaluated at the union
meeting of August 9, and that after such discussion he
understood he could vote. Algerio then explained that he
had not told Rosenberg that, but rather told Rosenberg
that he thought he was part of management because he
did not want them to fire him or put pressure on him.
Thus, Algerio's testimony on the one hand to the effect
that he openly told Rosenberg he would join the Union
because it would help to pay for medical bills and his re-
buttal testimony that, though believing the contrary, he
told Rosenberg that he did not think he was entitled to
vote for them because he was part of management and
so spoke to the management officials in order to avoid
discharge or pressure, involves, in my view, significant
inconsistencies. Furthermore, Algerio's subsequent ef-
forts of record to extricate himself from initial inconsis-
tency only led to additional inconsistencies and ended in
a response deemed wholly unconvincing because of ob-
served demeanor, if not indeed also revealing on the
record a readily discerned effort to pass off these incon-
sistencies with a seemingly flippant explanation of being
an effect merely of being a moody person. These circum-
stances are the more significant because Algerio im-
pressed me as an astute witness on occasion to anticipa-
tory fault. Other points need not be belabored herein. It
is sufficient to relate the finding now made that I specifi-
cally do not credit Algerio that he informed Rosenberg
and Corssen on that occasion that he favored the Union
in any way, but rather, as is not infrequently the case
when employees are confronted as to their union inter-
ests and sympathies in such inquisitorial manner, sought
to conceal his own union interest and his awareness of
the union interest of other employees from President
Corssen and Rosenberg. Under these circumstances, I
find Rosenberg's version more plausible, and I credit
Rosenberg in his recollection that Algerio had essentially
informed him not only that he knew nothing about the
Union, but also that the union representatives would not
have approached Algerio because he was part of man-
agement. Having so concluded, I am further constrained
to observe that as to Algerio's presented recollection in
these respects, with such readily apparent significance on
the ultimate matter of Respondent's awareness of his
union interest and sympathies, by virtue of being shown
demonstrably unreliable, there appears clear warrant for
scrutiny of his other testimony offered in support of his
alleged wrongful discharge.
In passing, I also note that Rosenberg candidly ac-
knowledged that, in addition to the above questioning of
Algerio, he had also asked the two office clerical em-
ployees (Benson and Stadnyck) and the salesman (Hols-
worth) if they had been approached by the Union or
knew anything about the Union. Although not recalling
the sequence of his inquiries, Rosenberg testified credibly
that none had reported they had heard anything about
the Union. Stadnyck and Holsworth did not testify.
However, Benson, who testified she had received the
written copy of the telegram on the morning of Thurs-
day, August 11, did testify; and Benson confirmed that
Rosenberg came to the Raycor premises on the same day
(thus notably consistent with other convincing testimony
of Schmal that Rosenberg had not come out on August
10, but the next day). Benson confirmed as well that, as
soon as Rosenberg arrived, which was some time before
lunch, Rosenberg had asked Benson if the Union had ap-
proached her. Benson also testified credibly that this was
the only time that Rosenberg had mentioned the Union
to her. I am thus wholly convinced and I find that the
above initial interrogations of Algerio and Benson oc-
curred on August 11 before lunch.'8 However, although
Rosenberg also in his testimony included Corssen Jr. as
one individually questioned by him in the same manner
as the others above, Corssen Jr. has denied such ques-
tioning occurred. In this instance I credit Corssen Jr.'s
denial, noting that August 11 (being a Thursday) would
have been his regular day off, and his nonattendance at
the employee meeting held later that afternoon is con-
firmed beyond the question.
Corssen Sr., Schmal, and Rosenberg discussed the
matter further at lunch. They were confused and did not
know what was going on, but wanted to find out if any-
body knew anything about it, and they decided that they
should try to find out what was happening in their shop.
Schmal and Corssen then decided they should have a
meeting with the employees; and, when Rosenberg sug-
gested he talk to the employees, President Corssen au-
thorized it.' The employees were notified and the meet-
ing was held in the rear of the shop in the separate bay
where Mechanic Rezek regularly worked. On the weight
of the evidence generally I find the meeting lasted ap-
proximately 30 to 45 minutes and took place at the end
of the workday of the shop employees, probably some-
time between 4:30 and 5:30 p.m. Present for Raycor
were Corssen Sr., Schmal, and Rosenberg. Employees in
attendance were Algerio, Gourlay, Labriola, Pomerantz,
Rezek, and Stone. 20
18 Algerio had initially placed Rosenberg's inquiry of him within 3 to
5 days of the union meeting, though on rebuttal Algerio placed it more
definitively in time as occurring after the union meeting on August 9 and
before management's meeting with employees which I find occurred in
the late afternoon of August II 1. Since I have credited Schmal's corrobo-
rated testimony that Rosenberg did not come out to Raycor premises on
this matter until August II, I am convinced the interrogation of Algerio
occurred during the morning of August II1.
I9 These findings are based on mutually consistent testimony of Cors-
sen, Schmal, and Rosenberg. However, to the extent President Corssen's
testimony would indicate that Rosenberg did not discuss with him having
already asked any others if they knew anything about the Union and
their negative replies, I do not credit it on the basis of seeming implausi-
bihty in view of the subject of their luncheon discussion.
20 Falabella was not present as he had been bitten by a dog and was
having the injury treated that day. Pettinato was absent that day, and he
was discharged effective the next day. Corssen, Jr., was not in attendance
as it was his regular day off, and Michael Corssen was also not in attend-
ance. Pomerantz (who was terminated on August 26) and Rezek, both of
whom were in attendance at the meeting, did not testify in this proceed-
ing
RAYCOR CO. 571
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holding the Union's telegram up in his hand, Rosen-
berg began the meeting by telling the employees that
Raycor had been contacted or approached by two union
men and had received that morning from the Union a
telegram stating that the majority of Raycor employees
had requested the Union to come in. Rosenberg then
asked the group of employees if anybody know anything
about it, and the employees all answered no. 21
According to Labriola, Rosenberg then first pointed to
him and asked if Labriola had signed a union card. La-
briola replied no. Labriola relates that Rosenberg then
went around the room asking each of the employees in-
dividually the same question and receiving the same
answer. Algerio did not confirm this. Stone's recollection
in this matter was also not wholly convincing in support.
Stone relates that the employees were individually asked
by Rosenberg or Corssen Sr. if the employee had signed
a card or if the employee had contacted anybody in the
Union. Stone did confirm each employee replied no. In
contrast, Rosenberg's recollection was only that he had
asked each employee individually if the employee had
been approached by any member of a union, and each
replied no. President Corssen supported Rosenberg in
denying that Rosenberg had asked the employees who
signed a card or who went to the Union, and Schmal's
recollection in this particular area was acknowledged by
him as limited, and is not helpful. However, employee
Gourlay, who impressed me as a generally frank and
candid witness, related that Rosenberg had begun the in-
dividual questioning with him and had asked him and the
other employees individually such questions as had the
employee been to a union meeting, met a union official,
or met anybody from the Union. Gourlay confirmed
each employee replied no. Gourlay did not recall any
questioning on who had signed a card. I am convinced
from the weight of the above evidence and I find that in
this meeting Rosenberg interrogated the employees as a
group, and then interrogated them individually, essential-
ly as to whether they had had any contact with the
Union, be it union officials or members; but that he did
not inquire of them at this time (e.g., poll them) as to
whether they had signed union authorization cards. 22
However, I do not credit Rosenberg's and Corssen's
e2 These findings are based on essentially mutually consistent and cred-
ited testimony of employees Stone, Algerio, and Labriola, and the nota-
bly not inconsistent testimony of Rosenberg, Corssen Sr., and employee
Gourlay.
22 To begin with, the record warrants the finding that these officials of
Raycor were novices at this time in such matters. I am simply not per-
suaded by the testimony of Labriola that each employee was asked if he
had signed a card. As will become clear infra, Labriola's recollections as
to this meeting were simply in many other respects either confused or
not shown supported by others in attendance, and on this matter his rec-
ollection is not convincingly supported by Stone, let alone any others. In
contrast on this matter, the testimony of Corssen Sr. was firm and con-
vincing and was consistent with the recollection of Rosenberg and, par-
ticularly, Gourlay. If any employee, let alone each and all of the employ-
ees, had been asked if they had signed a card, I believe Gourlay would
have recalled that fact, certainly as to himself, and would have testified
as to it. For much the same reason I do not credit Stone's recollection
that Rosenberg essentially then told the employees that he was going to
request from the Union the names of the majority of the employees who
wanted the Union in the light of a similar lack of corroboration and
Gourlay's testimony that he recalled no reference to a letter or future in-
quiry on same.
summary testimony that the meeting degenerated at this
juncture to merely miscellaneous side discussion, though
it did develop clearly into a management-employee gen-
eral discussion of employee gripes and wages and work-
ing conditions.
Thus, Stone (essentially corroborated by Gourlay)
mentioned his family situation and brought up that he
was tired of the circumstance that every time they
looked in the newpaper they saw an ad for a mechanic at
Raycot; and that it was like it came down to from one
week to the next they did not know if they were going
to have their jobs.23 Stone's recollection was that they
said (generally) that they would see what they could do
about it; but Stone confirmed they also mentioned they
let Richie Pettinato go, but they were going to do that
anyway because of his lack of attendance and punctual-
ity. In testifying as to the above incident, Labriola, on
direct examination, had related that President Corssen
had initiated Stone's above statements by asking Stone,
"Why do we need a union in the shop?" However,
Stone, testifying subsequently, did not corroborate such a
remark was made by Corssen (or by anyone else), nor
did anyone else corroborate it; and Gourlay, in his recol-
lection, testified he did not think that was the case. In
contrast on cross-examination, Labriola had himself for-
gotten who had made the remark. I do not credit La-
briola in that respect; and further, I am constrained to
conclude on the basis of the above considered finding
and other similar such instances deemed readily apparent
of record that Labriola, in testifying as to certain matters
which others did not corroborate, evidenced a proclivity
to embellish events with union or antiunion overtones,
which substantially has weakened the persuasiveness of
his individual testimony when uncorroborated or not
otherwise shown supported independently by the record.
I am thus wholly convinced and I now find only by
the above-credited conduct of Respondent's agent,
Rosenberg, on August 11 in respect to his initial inquiries
of Algerio, Benson, and the certain other employees es-
sentially as to what they had heard or knew about the
Union, whether they had been approached by the Union,
and who was involved in it, and his later questioning of
the shop unit employees as a group again generally as to
what they knew about the Union, and then individually
in the group essentially as to their individual contact
with the Union, that Respondent has thereby unlawfully
interrogated its aforesaid employees in regard to their
union interests, sympathies, and activities, and as to the
union interests, sympathies, and activities of other em-
ployees, in violation of Section 8(a)(l) of the Act.
According to Stone, Rosenberg also said to the em-
ployees, "Do you know that some people in the shop
might be reclassified in a lower classification? There is a
thing called class C mechanics and they only make mini-
mum wage"; Stone recalled Rosenberg then mentioned
$2 and some change. However, Rosenberg recalled to
the contrary that it was Stone who had raised the subject
21 Other circumstances involving pledged credit, discussed infra,
render quite plausible Stone's concerns in this area at this time.
RAYCOR CO. 573
that there should be more incentive to earn money.2 4
Corssen Sr. did not corroborate Rosenberg. Significantly,
both Corssen Sr. and Schmal generally confirmed that
there was discussion by Rosenberg of the mechanic clas-
sifications. More significantly, General Counsel estab-
lished on cross-examination of Gourlay that Rosenberg
had mentioned A, B, and C mechanics and that he
indeed had said, if a union came in, some mechanics may
be in class C, so it might be a step down for some
people. Gourlay recalled generally that something was
also said about the pay, though he did not remember
what it was. I thus am not persuaded by Corssen Sr.'s
additional testimony, in nature conclusionary, that such
statements were not made in relation to the Union.
Whether it was Rosenberg who initially broached the
subject of wages or not, I am equally convinced and I
now find that Rosenberg did tell the employees that, in
substance and effect, with a union in the shop some of
the employees would risk receiving lower classifications
and resultingly suffer reduced wages; and I further con-
clude and find that the same constituted an interference,
restraint, and coercion of employees in their free exercise
of Section 7 rights, which conduct was thus itself viola-
tive of Section 8(a)(l) of the Act. 25
Stone also related that Corssen Sr. told the employees
that they were like a family there; and that, if it was
money or something like that, if they wanted more
money, he could put them on piecework. (Labriola testi-
fied Corssen explicitly said "I will give you an incentive
plan." Neither Stone nor Algerio corroborated such an
explicit offer was made.) Corssen Sr. denied that he had
told the employees that, if they wanted, he could insti-
tute piecework. However, Corssen Sr. otherwise did
confirm that he told Stone that he had worked for an-
other company on piecework and had then explained to
employees how it worked; and, significantly, he con-
firmed telling the employees that you can make money
on piecework, though relating he also told them it is
very hard to do so. Rosenberg recalled Corssen did
speak of his own experience of being paid by the job
rather than by the hour in terms of: "If you are a good
mechanic, that is the best way to do it. But if you are
not a good mechanic, you have to redo the bad work
over again on your own-at your own cost. For some
people it's good, for some it's bad." Gourlay also con-
firmed that Corssen did discuss his own work experience
in another shop,2 6 and said that employees could basical-
24 According to Rosenberg, Algerio also voiced a complaint about the
money he was earning, and Rosenberg replied "It seems to me Joe, that
you are doing very well here, that you have got a nice increase, you get
bonuses and you also get a percentage of the parts that are sold. So it
looks like you are doing fairly well from where you started." Rosenberg
testified that Algerio replied that he would always like to do better.
25 The complaint was amended at the hearing to allege that Respond-
ent threatened to "lower job classifications with lower rates of pay, less
agreeable and more arduous working conditions, and other reprisals." I
thus find merit to the amended allegation as to the implied threat of
lower classifications and reduced wages. For reasons clearly appearing
hereinafter, I find no merit to the remainder.
26 In passing, I do note that Labriola's recollection on this matter was
that Corssen Sr., in relating his past work eperience, had identified it as
being with a union dealer. No other witness confirmed this, and Corssen
Sr. testified that his prior employment was not with a union dealer. I
credit Corssen, and I also do not believe he told employees to the con-
trary on this occasion. Nor do I credit Labriola's again uncorroborated
ly go on incentive bonus and make a lot more money out
of it, but that it depended on the individual: "[I]f you are
good you can make it, if you're not good, you won't
make money, if you don't fix it right, then you have to
repair them on your own time."
Following so immediately on the heels of interrogation
of the employees as to their union interests, sympathies,
and activities, it seems to me eminently reasonable for
the same employees to have discerned in these statements
the thinly veiled willingness on the part of Respondent
to afford them an incentive method of payment as an al-
ternative means of earning more money, albeit with the
frank caveat errorless performance that would then be
required. I so find. I thus conclude and find that, by
making such an implied promise of benefit, Respondent
has interfered with the free exercise of Section 7 rights
in violation of Section 8(a)(1) of the Act as alleged in the
complaint.
On what may be perceived as one of the more serious
of the 8(a)(1) complaint allegations, namely, the alleged
threat of plant closure, I find that General Counsel's evi-
dence was least convincing. Labriola testified that,
during the discussion, Corssen Sr. told the employees,
"we don't want a union telling us how to run our busi-
ness," and that Rosenberg then said they would be better
off shutting the doors and putting locks on them. Stone's
version was in part supportive, but still less than persua-
sive, recalling it was said that they did not want a union
coming in and telling them how to run the business, that
it would not pay, that they would be put out of business,
and that they might as well put the lock on the door.
However, Stone was unsure whether it was Corssen Sr.
or Rosenberg who had made these statements, though as-
serting that one or the other had. Algerio's version in ob-
vious summation style was less impressive in accuracy of
recall. Thus, Algerio testified Corssen said it would force
him out of business, he would just as soon put the key on
the door and walk away, he could not survive, and he
would go down. Raycor officials in turn denied that any-
thing was said about locking the door or the shop up.
Gourlay testified significantly and affirmatively that he
did not hear Corssen say, if a union came in, they might
as well put a lock on the door, nor anything about the
shop closing; and he also heard no reference by Corssen
about not being able to afford a union. Gourlay's testi-
mony is thus largely supportive of Corssen, though this
one issue is observed to be in direct conflict with Al-
gerio, Labriola, and Stone. Gourlay's testimony general-
ly did not suffer the record credibility infirmities of the
other witnesses, and I can discern no viable or convinc-
ing reason to discredit him on this serious matter. Al-
though I have found Stone to have been more consistent
in his testimony and credible in regard to certain other
matters, there are certain other instances where cause has
appeared to discredit his recollection. In this serious
matter (particularly in vagueness as to authorship) he
was neither fully convincing nor controllingly persuasive
testimony that Rosenberg told the employees that without a union they
could get up to 300--S400 a week in comparison with class C mechanic
wages of $2.30, though this may have been his personal assessment upon
hearing from both Rosenberg and Corssen Sr. on wages and on the in-
centive method of payment.
RAYCOR Co.
573-
f
-
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the face of Corssen's corroborated denials. It was the
General Counsel's burden, as it is in all complaint allega-
tions, to convince me by the preponderant weight of
credible testimony that the facts of the complaint allega-
tion are true, which in this instance, I conclude, he has
failed to do. I shall, accordingly, recommend that the
complaint allegation that Respondent threatened to close
its plant in violation of Section 8(a)(l) and (5) be dis-
missed.
C. Company knowledge considerations; the union
representatives' visits to Raycor premises
Some degree of confusion in the record may be allevi-
ated with the preliminary observation made that, while
Elliott in his testimony speaks of but two visits to Ray-
cor's premises, the union representatives actually visited
the premises four times. The first and third visits of El-
liott (and Oliveri) have already been noted; namely, the
demand for recognition made on Schmal on August 10
and the request for reinstatement of Algerio and Stone
made to Corssen on September 6. President corssen re-
lates there was an intervening (second) visit which is
compatible with Stone's recollection and, I find, which
probably occurred on August 15 or 16. The last (fourth)
visit occurred a few days to a week into the strike on the
occasion when the union officials sought the release of
Stone's working tools. Close attentiveness to the wit-
nesses' testimony in that light assists in resolution of
some existing factual conflicts and is helpful in the evalu-
ation of the extent of Respondent's awareness of individ-
ual employees' observed contact with union officials on
the premises.
It was Elliott's recollection that, after initially talking
to Schmal in the service area on August 10, he had then
walked to the nearby parts room and reported to Algerio
the conversation he had just had with Schmal. Accord-
ing to Elliott's recollection, they (he and Oliveri) had
then walked around the shop and spoken also to certain
other employees, Stone, Labriola, and (he believed) Fala-
bella. Elliott's recollection was that he told these em-
ployees at that time not to do anything out of the ordi-
nary and to make sure that they came in on time.
2
7 El-
liott conceded that he had not noticed at the time wheth-
er anyone saw him talking to any of these employees in
the shop. Labriola testified only generally that he talked
to the union representatives that day. Falabella did not
corroborate Elliott as to such conversation with him as
he did not testify as to having had any conversation with
union representatives in the shop or on the premises
prior to September 6.
Elliott also testified as to a subsequent visit by the
union representatives to Raycor's premises on September
2? Employee Pettinato was absent from work on the following day
(August I 1) and discharged on August 12. Pettinato's discharge was for a
continued absence and lack of punctuality. It occurred after Pettinato had
received prior warning from Schmal over similar conduct, and his dis-
charge is uncontested in this proceeding. I would thus presently addition-
ally note that it would seem the more probable for such a comment by
Elliott (if indeed made at the shop at all) to have been made following
Pettinato's August 12 discharge rather than before (on August 10) as re-
called by Elliott, particularly in the light of the recent union access and
considerable discussion with the employees (including Stone and Pettin-
ato as well as Algerio) in the union meeting held the very night before.
6, and to the holding of a conversation with President
Corssen at that time (in regard to the intervening dis-
charges of Algerio and Stone) with Schmal present; but
Elliott did not otherwise recall (on cross-examination)
having met President Corssen earlier; i.e., prior to the
representation hearing/conference held on August 25.28
However, President Corssen thereafter testified (without
subsequent contradiction by Elliott) that there was the
intervening (second) visit of the union representatives to
the premises. Thus, President Corssen testified that the
two representatives had come in and spoken to him in
his office, and that they had at that time presented Cors-
sen with two forms for recognition of the Union that he
should sign, telling Corssen at the time that it would be
better if he did so because it would otherwise cost them
a lot of money.29
First observing that there was some variance in the
testimony of Algerio as to the date, and that Algerio did
not testify as to any warning given to him by Elliott to
be on time, I note Algerio did relate an occasion when
Elliott had reported to him in the shop that Elliott had
given Schmal the proposal to let the Union come in and
that Schmal had refused. I thus credit Algerio (and El-
liott) to the extent of such a conversation being held
with Algerio. Algerio also testified that Schmal and Ray
Corssen, Jr., were both in the shop at the time Elliott
had briefly conversed with him. Algerio recalled that
Schmal was about 6 feet away in the service area and
visible to Algerio through a window in the parts room,
but, significantly, Algerio testified that he also had not
observed Schmal watch them (Elliott and Algerio) talk.
Algerio further observing that Corssen Jr. was at the
same time some 35 feet away out in the shop in Stone's
work area. However, there was no convincing evidence
that Corssen Jr. was aware that the initial union contact
with the Company was being made at this early moment;
rather, I am convinced Corssen Jr. did not become
aware of it until, at the earliest, Friday, August 12.30
g8 This is not to suggest that Elliott also met President Corssen at the
hearing/conference itself, as I find that both Algerio and Corssen were
not in attendance. Apparently, at this time Corssen Sr. was engaged in
arranging for new car deliveries to Raycor premises prior to an anticipat-
ed longshoremen's strike.
"2 President Corssen acknowledged that at this time he was not famil-
iar with the methods by which unions came to represent employees, nor
with National Labor Relations Board proceedings in that regard.
30 Falabella's testimony in rebuttal, as to having observed Ray Cors-
sen, Jr. at one point some 3 to 5 feet away from Schmal in the vicinity of
the hall or corridor at the (earlier) time Elliott was talking to Schmal,
does not persuade me that Corssen Jr. was resultingly shown to have
been aware even at that time of the union demand event then transpiring,
particularly with Corssen Jr.'s subsequent convincing testimony that he
was without such knowledge. I am, however, convinced that Corssen Jr.,
within a few days, did become aware of the prior contact of the Union.
Thus Corssen Jr. did testify that Schmal had mentioned to him that he
got something in the mail about a union, a telegram (so he thought), and
about the Union coming in, but that was all. Although Corssen Jr. also
could not place such conversation in time, his recollections of Schmal's
reference to a telegram receipt in the mail would appear to itself to logi-
cally suggest that the occurrence of their conversation was probably on
or shortly after his return on Friday, August 12, as the written copy of
the telegram (I find) was not received in the mail by Respondent until
the morning of August II, a Thursday, which has been noted was Ray
Corssen Jr.'s regular day off. I also credit the undenied testimony of Ray-
mond Corssen Jr. (corroborated as it is by Michael and Raimund Corssen
Sr.) that his father had a rule not to discuss business at home, and I am
Continued
RAYCOR CO. 575
Stone confirmed that it was the day following the card
signings, thus August 10, that Elliott and Oliveri initially
came in to the shop and spoke to Schmal. However,
Stone (also) did not offer any corroboration of Elliott as
to any conversation between Elliott and Stone that day.
Rather, it was Stone's recollection that it was later,
about August 15 or 16 (Monday or Tuesday) that Elliott
and Oliveri had come by his workbench while he was
working on a car. Stone testified that he was alone at the
time, recalling that Labriola was out testing a car, and he
recalled also that neither Falabella nor Pomerantz was
there, circumstances wholly consistent with the noted
failure of Labriola and Falabella to subsequently confirm
that any other personal conversations had occurred be-
tween them and Elliott on the premises (even) at this
time. Stone's further recollections were that the union
representatives on this occasion had told him that they
had requested Corssen to sign the papers that would give
them the right to have a vote in the shop, which also ap-
pears compatible with President Corssen's (inexpert)
summary of the visit, and that Corssen had refused and
was not going to sign the papers. I am convinced on the
basis of the above, and I find, that Elliott is misstaken as
to whom he spoke on his first visit; and I find that he did
not talk to either employee Stone or Falabella on August
10, though he did talk to Labriola and to Algerio on that
date. I am further convinced and find that the occasion
of a conversation with Stone (but not others) relates to
Elliott's second visit, which occurred the next week and
probably on August 15 as Stone recalled.
Stone also testified that Ray Corssen Jr. had seen the
union representatives in the shop that day talking to him.
However, such involves a conclusion on the part of
Stone and not admission by Corssen Jr. that at that
moment he knew their identity, for Stone also testified
that Corssen Jr. had asked who they were. Stone's reply
was noninformative as he told Corssen Jr., "I don't
know. You know they just came up to me and asked
what I was doing." However, I have found Corssen Jr.
did shortly after his return to work become aware that
the Union had contacted Respondent. On direct examina-
tion Corssen Jr. nonetheless asserts that he was not
aware of any union representatives coming to the shop
prior to September. Corssen Jr. confirmed Stone that on
an unspecified date he had previously seen two individ-
uals with or near Stone in the shop area, and that he
later learned they were union representatives upon
seeing them on the picket line in September. He also tes-
tified that he had not known who they were at the time
he first saw them in the shop area. I credit the latter, but
not the former, for the following reasons. At the hearing
Corssen Jr. recalled that on the particular occasion in
question he was outside with some customers about
noontime one day (noted as consistent with Stone's rec-
ollection that he was alone) when he had observed the
two men in the shop area through open shop doors.
Corssen Jr. was quite plausibly sensitive to the circum-
stances that the shop is a posted one, and that unauthor-
ized visitors are not permitted in that area because of in-
wholly convinced and I find that Corssen Sr. had not discussed the
Union with them at home in the interval.
surance restrictions. Additionally, Corssen Jr. testified
that Respondent keeps chained attack watchdogs on the
premises, that there exists danger that, if a person strays
within chain length, he will be bitten by an attack dog,
and that such had occurred in the past. Corssen Jr.'s in-
terest in the men in that area at that time on the basis of
the above evidence considered alone is equally support-
able of an inference of an interest prompted by business
reasons as well as union considerations. As we shall see,
I am convinced it partook of both.
Corssen Jr. testified that, after he finished with his cus-
tomers, he returned to the shop area because he wanted
to see if the men were still there. He observed that the
men were no longer there. Nonetheless, he confirmed he
had then asked Stone who the men were because they
had been in Stone's area. Corssen Jr. essentially corrobo-
rated Stone that Stone had then told him that Stone did
not know who they were; and, when Corssen Jr. then
asked what they had said, Stone had replied something
like "they wanted to know what he was doing, that's
all." Corssen Jr. testified that Stone's answer had satis-
fied him at the time. Corssen Jr.'s testimony at the hear-
ing as to this event in large measure is observed to be
essentially factually compatible with that of Stone.3'
However, the related evidence does not end here,
though the compatibility of the account between Stone
and Corssen Jr. significantly does.
Stone also testified that it was later that afternoon, on
an occasion when Stone was coming out of the restroom,
that he had overheard through the wall partition (but did
not see) Corssen Jr. engaged in a conversation with an-
other person in the showroom. Stone testified that he
heard Corssen Jr. ask, "Who were those guys that were
in the shop this morning." An individual, whom Stone at
the hearing would identify as having been either Corssen
Sr. or Schmal, replied they were from the Union. Ac-
cording to Stone, Corssen Jr. then stated he had seen the
men talking to Stone at Stone's workbench. At the hear-
ing, Stone offered the explanation that he had concluded
it had to be either Schmal or Corssen principally because
of accent, testifying that it was not Rezek who had a dis-
tinctive accent, nor Gourlay, whom he recalled was on
vacation at the time. Although the record reveals that
Gourlay had not started his vacation until later in
August, Stone's additional testimony that mechanics
would not have been in the showroom at the time was
not convincingly contradicted. However, Respondent
did establish on cross-examination that Stone had been
more definitive in identification in the prior affidavit
given on October 4, and had then identified the person
speaking with Corssen Jr. as being Corssen Sr.32
31 In passing, I note that despite the prior affidavit seeming to place
the incident earlier than August 15 or 16, at the hearing Corssen Jr. was
unwilling to specify the date of this incident, testifying it could have been
the beginning, middle, or end of August, as the incident did not occur to
him to be anything special until after the picketing began. I find the indi-
cations of the prior statement as to the date not of controlling signifi-
cance because of the weight of consistent evidence from several sources
that this event took place on August 15 or 16, and in any event later than
August 9 or 10.
32 Respondent would argue that this identification vacillation had only
occurred after it was indicated that Corssen Sr. was not present on
Wednesday, August 10. However, the underlying premise is observed to
Continued
RAYCOR Co. 75
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corssen Jr.'s testimony in the main was that he was
not involved with the Union; and he has effectively indi-
rectly denied the above conversation with Corssen Sr.,
as he testified that his father did not talk to him about
the Union, and that he did not know who the men were
until the strike began on September 6 when he saw them
on the picket line. Corssen Jr. also testified that he had
nothing to do with the subsequent discharges of Algerio
and Stone, and that he did not learn about the reasons
for their discharge until after the strike began; but on
cross-examination he retracted the latter assertion, con-
ceding the inherent probability was that he would have
inquired and learned of their situation earlier when he
observed Algerio and Stone were not at work. Further-
more, although also denying that such a conversation
could be overheard by one on immediately coming out
of the restroom, he otherwise conceded that, if an indi-
vidual were passing by directly on one side of the room
partition, the individual would be able to overhear such
a conversation if carried on directly on the other side of
the partition in the showroom. Stone's overhearing of
such a conversation is one which is thus deemed wholly
feasible. Corssen Sr. did not specifically deny the con-
versation. He testified rather that he did not recall any
conversation (other than those referenced by him herein)
about the Union prior to August 25. Benson, a wholly
credible witness, testified to the contrary.3 3 Thus,
Benson, initially called as a witness by Respondent, sig-
nificantly also testified that, after Rosenberg's question-
ing of her on August 11, President Corssen had some-
time later in August asked her if Ray Stone had men-
tioned anything to her about a union; and that, when she
had replied no, Corssen Sr. had then said to her that he
did not think a union was necessary in the shop as they
were too small, but, if they voted the union in, there was
nothing he could do about it. I credit Benson. It was
stipulated that a copy of the petition filed on August 12
was subsequently served on Raycor on August 17 with
enclosed notices (of employee rights). The latter notices
were promptly posted by Schmal in the shop. There is
no evidence of any further or subsequent independent al-
leged violation of Section 8(a)(1) (that is, unrelated to
discharges). Indeed, Benson otherwise testified that Cors-
sen Sr. never told her that he would prefer the Union
not to come in, nor did he ever ask her to obtain any
information about the Union.34 1 am fully convinced
that, by the time of the instant conversation under dis-
cussion, Corssen Jr. was aware the Union had recently
contacted the Company about "coming in" or "unioniz-
ing" the shop. I further conclude it was already the
Company's adopted position as of August II to await
clarification of the issue and withhold and/or decline
recognition to the Union at this time. Equally significant,
the questions that Corssen Jr. asked of Stone are fully
be faulty, as I have credited Stone's recollection of the incident as occur-
ring later, and find that it occurred probably on the fifteenth. which is
compatible with Corssen Sr 's testimony of a second visit.
a3 Employee Stone was married to Benson's niece, and Benson was in-
strumental in Stone's initially obtaining his employment with RespondenL
a4 In view of the numerous earlier findings of unlawful interrogations
of employees, it would seem unnecessary to reach any issue of whether
under the circumstances the latter inquiry of Benson, not a matter of spe-
cific complaint allegation, was a matter fully litigated herein
compatible with, though not by themselves conclusive
of, an interest in identifying the men who had ap-
proached Stone in his work area and their purpose in
doing so. Indeed, the questions actually put would
appear to be more so (content wise) than with an ex-
pressed design only to remove or preclude return of un-
authorized visitors from the restricted area. Thus, there
was no warning or criticism of Stone in the latter regard.
Although the issue is not one free from doubt, I con-
clude and find that the evidence presented by the Gener-
al Counsel prevails in showing the overheard conversa-
tion advanced by Stone was both feasible and more
probable than not. I accordingly find that President
Corssen at this time was made aware of a report that
union representatives had made a personal contact with
employee Stone in the shop on August 15. Finally, al-
though there is no convincing evidence of record that
Algerio was similarly observed by Respondent in contact
with any union representative in the shop, on this record,
Stone and Algerio (though Algerio less so) appear to
have been the principal outspoken employees at the
Raycor employee group meeting.
As noted, a subsequent prehearing election agreement
conference was held by the Regional office on August
25. Present for Raycor were Schmal and Rosenberg and
for the Union were Elliott and the Union's attorney.
Among discussion, following which the parties arrived at
a consent election agreement, there was a discussion of
the eligibility of Algerio and the noneligibility of Mi-
chael Corssen. After discussion of Algerio's status by the
parties and the board agent, which indicated at that time
his nonpossession of statutory powers, Algerio's name
was added to a submitted list of employees on the pay-
roll, while the name of Michael Corssen was in turn de-
leted on the basis of being ineligible by virtue of being
the son of the major stockholder and president of Re-
spondent.35 Rosenberg's relations as to what happened
thereafter are somewhat confusing. At one point he re-
lates management sat down to discuss the possible out-
come of the election, only to otherwise relate he was
very late for an appointment to which he was driven by
Schmal, and he left on vacation the next day. In any
event, it was Rosenberg's recollection that it was by
virtue of this conference and the Union's claim therein
that it had signed cards from the majority of the shop
employees that they realized the shop employees had not
told them the truth. According to Rosenberg (denied by
Schmal and Corssen), they subsequently sat down and
tried to figure out who was for the Union and who was
not, hoping the Union would not win, but concluding
the Union was favored. Rosenberg's testimony was also
confusing, if not inconsistent, on the evaluation made
specifically as to Algerio and Stone. Thus, Rosenberg
initially testified that they did not think Stone was in-
volved with the Union, but were not sure of Algerio,
"I The Employer had submitted to the Board's Regional Office in con-
nection with the representation case matter a list of shop employees pre-
pared by Benson at Respondent's instruction. Algerio's name did not
appear thereon, while Michael Corssen's did. The list (presumably used
administratively as a showing-of-interest list) was, in any event, apparent-
ly used as a working list in the election agreement discussions and for
future service in preparation of an "Excelsior List'" for the upcoming
election.
RAYCOR CO. 577
and that he did not remember either Schmal or Corssen
saying that Algerio and Stone were for or against the
Union, only to testify on another occasion that sometime
after the meeting he believed that Corssen and Schmal
had indicated they thought that Stone and Algerio may
be prounion. Although both Corssen and Schmal have
denied such discussions and evaluations took place, I
construe the testimony of Rosenberg as an admission
against Respondent's interest, noting that Corssen Sr.
otherwise did testify that Schmal and Rosenberg had re-
ported back to him that an election had been set up. I
conclude and find that, at some point prior to the dis-
charge of Algerio and Stone, Respondent's principals
had in fact formulated the opinion that Algerio and
Stone might be prounion, and that it was likely the ma-
jority of the employees would vote for the Union. It re-
mains to consider the evidence as to whether the subse-
quent discharges of Algerio and Stone were for that
reason or for other surfacing just and independent cause,
as urged by Respondent was actually the case.
D. The discharges of Joseph Algerio and Ray Stone
According to Algerio, he was working overtime on
Tuesday, August 30,36 when at or about 6 p.m. Corssen
Jr. came up to Algerio and told him that Corssen Sr.
wanted to see him for a minute. Algerio went to the
front office to see President Corssen. There was no one
else present. Algerio was notified he was being terminat-
ed. According to Algerio, the principal reason initially
given to him for his termination was that there was a
business slowdown, and that only secondarily were other
reasons advanced, viz, that there were too many bills
coming in and that he should not have extended credit as
he did. Thus, according to Algerio, President Corssen
told Algerio that he was going to have to let Algerio go
because business was slack of late, or slowing down. Al-
gerio replied he did not believe that because he had just
received a pretty good commission check for the first
week in August, and asked how could business be off if
he was selling more parts.a 7 According to Algerio, it
was only then that the other reasons were mentioned,
with Corssen Sr. saying: "You cost me too much, I have
to let you go. I can't do anything about it, I have to run
the parts room myself."38 Algerio also testified that
President Corssen had also told him that he should not
38 Although initially testifying that he was discharged on August 29 as
the complaint alleged. Algerio later confirmed that he was working on
August 30 when certain supplies were delivered, which included an erro-
neous delivery of an excessive amount of spark plugs, which, because of
his termination, he did not have an opportunity to correct. It was Re-
spondent's contention that the foregoing overordering of spark plugs was
one facet of Algerio's general overordering, discussed inia.
"7 Algerio related as other considerations that business in relation to
the prior year was not slowing down, that BMWs were becoming the in-
car, that the summer was busier than the summer of a year earlier, and
that the oncoming winter (he felt) would be busier likewise. Algerio also
related that in the beginning of the fall is when all the new cars come
out, and is also a period when there are a lot of cars sold which are left
over from the prior year. Although all of these considerations may vwell
have been true, they do not offset the thrust of fiscal records in regard to
an excessive inventory buildup, discussed infra.
38 On another occasion Algerio confirmed Corssen had said, "We
can't afford to keep you here: it is costing too much to run the parts de-
partment; we will have to do it ourselves "
have extended credit to people in the shop. Algerio
asked as to whom he should not have extended credit,
and Corssen replied, Ray Stone. According to Algerio,
they then went back to the parts room so Algerio could
get his personal belongings. Algerio recalls that Corssen
made some inquiries about some of the things that had to
go out the next day, and, after Algerio explained them,3 9
he then left. Algerio testified that he has never thereafter
been offered his job back.
On cross-examination, Algerio acknowledged that he
came in the next day, August 31, a Wednesday (Corssen
Sr.'s day off), and talked to Corssen's secretary, Benson,
requesting a letter that he might take to the unemploy-
ment office in regard to being laid off from work by
Corssen (solely) for lack of work. (Algerio would ex-
plain this action on the basis that the major reason for his
layoff was President Corssen's statement to him that
business had slowed down, and that other reasons of
overordering parts and extension of credit improperly to
Stone were only added by Corssen at the end of their
conversation.) According to Algerio, Benson replied that
Algerio would have to wait until President Corssen
came in. Algerio confirmed that he did suggest to the
secretary that she write the letter up then, and, if Cors-
sen said it was alright he would then sign it. However,
the secretary declined, saying she would wait until Presi-
dent Corssen came in. According to Algerio, when Cors-
sen came in, he would not let Benson type up the letter
and said he would not sign it. (Algerio testified that he
was subsequently denied his unemployment claim be-
cause of claimed discharge for cause in overordering
parts and certain credit extended on an engine, infra.)
Benson testified that she first learned of Algerio's dis-
charge on the morning of August 31 (Wednesday), when
Algerio came into her office and asked her, "Would you
give me some kind of a letter stating that I was let go
because of lack of work so I can go down to file for my
unemployment." Benson told Algerio she could not do
that, and also that she did not think that was the way
they handled it, telling Algerio that normal procedures
were that he had to first go down to apply for unem-
ployment, and "they in turn will send us a form to fill
out, and we'll send it back to them." Benson further re-
lates that she confirmed it with Schmal, who instructed
her not to do so, and that Algerio should go through
normal channels. The parties stipulated Corssen Sr. was
not on the premises that day. I credit Benson.
Respondent confirms that Algerio was discharged be-
cause he overordered parts, but also because of an exten-
sion of credit to employee Stone, which they concluded
he had covered up.
Thus, Corssen Sr. testified that in early June he no-
ticed that the bill for parts (viz, for May purchases) was
extremely high. At the time Algerio was in full charge of
39 Algerio confirmed that one such item as an outstanding hill f Ja-
cobsen's Garage This customer had given Algerio a large dsit ad
had three bills for supplies ordered The deposit was suffilcient to( cer
75 percent of the amount due. but enough only to co'ser to of three
bills The two bills and deposit were processed through the secretar Ittie
recalled that the remaining hill, which was not fully paid, w;il either on
his clipboard (where he regularly kept unpaid hill) or th the certain
parts not as yet picked tip Algerio explained that as a pending natler to
Corssen Sr
RAYCOR Co.
the parts department, which included the ordering of
parts. (Corssen Sr. testified that, following his account-
ant's review of the Company's May statements, he had a
discussion with his accountant, who at that time first
warned him that the Company was buying too many
parts, and that Rosenberg had recommended at that time
that he go to Algerio and slow it down, as the Company
was investing too much of its cash in parts. On cross-ex-
amination Corssen Sr. otherwise explained sales were not
evidencing the usual 30 percent (to 40 percent) retail
markup on the parts being purchased. 40 Corssen Sr. re-
lated that it was on this occasion, and for the first
time, 4 1 that he went to Algerio and instructed Algerio
that he was to slow down in his ordering of parts as the
amount of money being spent on parts by the Company
was too much. At the beginning of the following month
(July), parts orders (for June) were lower, but, according
to Corssen Sr., still higher than the prior average to
which he was accustomed. Corssen Sr. related that he
again spoke to Algerio, telling him to make the orders as
low as possible. However, when the July bill came in (in
early August), it was again high. According to Corssen
Sr., on this occasion he told Algerio that from that point
on Algerio was to order parts only for warranty pur-
poses or on customer direct orders; and that on any
stock items Corssen Sr. desired to first see the order.
Corssen Sr. testified that they were required to pay the
BMW bill every month or stood to lose their credit, that
they were always a little behind in paying other bills, but
that the payment of their other bills at this time stretched
to over 60 days, which was not normal.
Rosenberg wholly corroborates Corssen Sr. as to Re-
spondent's developing fiscal difficulties and their causes.
Thus, Rosenberg relates that his firm would have an em-
ployee collect financial data once a month which Rosen-
berg would review monthly. Rosenberg confirmed that
he had earlier made recommendations to Corssen Sr.
concerning the amount of parts ordered. Rosenberg re-
called that Respondent had some difficulty in meeting its
payments to BMW in May because parts purchased were
1976 BMW Parts
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1977
Feb.
Mar.
Apr.
May
June
July
Aug.
in excess of sales. Rosenberg testified that in June he rec-
ommended to President Corssen that a stop be put on the
purchase of parts, and told Corssen that he should buy
only what he needed. Rosenberg related that Corssen re-
plied he would do so, that he observed purchases de-
clined in June, but that in July and August the parts
orders placed skyrocketed again.
The parties have introduced by stipulation that parts
orders and sales monthly totals in the pertinent period
were as follows:
BMW Parts
Ordered
$7,162.88
8,535.64
10,336.69
14,394.06
9,398.02
15,540.38
15,306.77
$80,674.44
BMW Parts
Sales
$16,665.40
10,923.40
15,193.36
11,230.29
18,724.94
17,315.74
19,562.38
$109,615.51
It is initially observed that sales in May were $3,163.77
below parts orders in May, and that parts orders were
reduced in June only to exceed the level of May's orders
in the months of July and August. On the other hand, it
is observed in the same 4 months that total sales exceed-
ed parts ordered by $12,194.02 ($66,833.25-$54,639.23);
and in the 6-month period ending in August sales exceed-
ed parts orders by $28,941.07 ($109,615.51-$80,674.44), as
Algerio generally testified was the case and was a factor
not being considered by Respondent. It is further ob-
served, in passing, that sales in the first 3 above months
immediately prior to the May parts order placed by Al-
gerio exceeded parts ordered in the same period by
$16,746.95. Nonetheless, it was Rosenberg's testimony
that on his analysis in May it was very obvious that the
amount of parts ordered were excessive.
The comparative differences and ratios of 1977 orders
and sales as compared with 1976 are the more reveal-
ing:
1977 BMWParts
Feb.
Mar.
Apr.
May
June
July
Aug.
Orders
$3,450.79
4,695.12
4,709.17
4,528.28
6,089.00
6,124.88
5,873.93
$35,471.17
Sales
$10,027.90
11,027.09
10,120.12
8,170.27
12,244.25
11,575.85
12,082.47
Differences
$6,577.11
6,331.97
5,410.95
3,641.99
6,155.25
5,450.97
6,208.54
Orders
$7,162.88
8,535.64
10,336.69
14,394.06
9,398.02
15,540.38
15,306.77
Sales
$9,502.52
2,387.76
4,856.67
-3,163.77
9,326.92
1,775.36
42 4,255.61
Differences
$16,665.40
10,923.40
15,193.36
11,230.29
18,724.94
17,315.74
19,562.38
$10,615.51
_. _ _ _ _ _ _ -- --- --- -- -- --------
$75,247.95 $39,776.78 $80,674.44 $35,268.61
40 For example, on the May parts' order of $14,394.06, a 30-percent
retail markup would call for corresponding sales of $18,712.28
($14,394.06 parts' order plus markup of 4,318.22), as compared with
actual sales that month of l11,230.29. Of course if 40-percent markup
were to ie factored, the variance becomes even more pronounced.
4" Algerlo istified that since the beginning of the year with higher
parts' orders occasioned because of higher sales, Schmal and Corssen Sr.,
nonetheless, had routinely been critical of his parts' ordering because it
was higher than the prior year. However, I credit Corssen Sr. that he did
not discuss the parts' orders in the period February-April, as being more
probable in view of the 30-percent markup that is shown was realized in
these months.
4Z Corssen Sr.'s recollection of continued buildup in August is less per-
suasive. Thus, the 30-percent retail add on to 15,306.77 for parts orders
would essentially call for sales of $19,898.80 (15,306.77 for the orders
plus the 30-percent retail markup of 4,592.03), comparing fairly with
actual August sales of 19,562.38. However, as noted, Corssen was him-
self exercising greater control over purchases at this time, and, as the
record reveals, the rate was still not what it had been in the prior year,
nor what it became in subsequent months after the discharges, viz, 1.6 to
1.
RAYCOR CO. 579
Preliminarily, it is observed that, although sales in 1977
were up as attested to by Algerio, the sales-orders differ-
ences in 1977 were down from 1976 in March and April
and significantly so in May. It is readily apparent that
either there was a profit drop in the sales-price/parts-
cost ratio occurring, or an inventory increase had oc-
curred, as was attested to by Rosenberg. No convincing
testimony or evidence was offered to support the former.
I credit Rosenberg that his analysis of the May monthly
sales-orders totals indicated to him that a parts inventory
buildup was occurring as of May 1977; and I find as
well, as he noted, that after a reversal in June the build-
up resumed in July. Stated in the overall and perhaps
then the more simply viewed, on parts ordered February
through August 1976 totalling $35,471.17, there were
generated sales of $75,247.95 in the same period, or a
2.12 to I sales-to-parts-cost ratio; while in the same
period in 1977, on $80,674.44 in parts orders and in-
creased sales of $109,615.51, there was a significantly re-
duced sales-to-parts-cost ratio of 1.35 to 1. As noted,
Rosenberg concluded and testified the explanation lay in
excessive parts purchases and inventory buildup. The
same is further indicated by a comparison of the total
sales excess in the lower monthly sales and orders in
1976 of $39,776.78 with the higher 1977 monthly sales
excess over 1977 orders of $28,941.97; namely,
$10,835.71 higher in 1976 despite the $34,367.56 increase
of sales in 1977 over 1976. Finally, there is also more
clearly discernible an inventory buildup in a comparison
of the increased parts orders in 1977 over 1976 as com-
pared with sales for the same periods; viz, comparison of
a 1977 parts orders increase in the above 6-month period
of $45,203.27 ($80,674.44 minus $35,471.17) with the 1977
sales increase of only $34,367, thus a net excess of parts
orders over sales in this period of $10,835.73. I accord-
ingly find that Corssen Sr.'s testimony that Algerio was
overordering parts in this period was not only corrobo-
rated by the firm's accountant, Rosenberg, but otherwise
confirmed by the fiscal records herein. 43 Algerio's
signed summarized dollar inventory buildup confirms
this fact.
It is nonetheless the General Counsel's contention that
the parts ordering by Algerio was not the sole reason for
Algerio's discharge, the General Counsel pointing out
that sales were rising appreciably and the parts ordering
cannot be attributed to Algerio's seeking personal remu-
's There was much litigation in this case relative to what I deem a
subordinate contention that Algerio was overordering parts as a result of
his taking part in a certain 6-month sales promotion competition put on
by BMW, commencing in the general period of March, for personal gain,
as to which, it would appear, the evidence is much less convincing.
However, in view of the above findings that there was an overordering
of parts by Algerio (for whatever reason), in my view, I need not reach
or resolve such additional contentions.
neration, as 90 percent of the sales made did not apply to
Algerio's credit under the various sales promotion plans;
and perhaps more significantly that Respondent was
aware of the situation for several months, and indeed
more recently had been responding to it by approving
the orders made. There is a degree of merit observed in
such contentions. However, that was not the only reason
advanced for the discharge of Algerio (and Stone) at this
time, which brings us to the factually complex issue of
Algerio's extension of credit which had been made to
employee Stone and Respondent's contended coverup by
Algerio when Stone could not pay on time.
Parts Room and Front Office Invoice Procedures
To begin with as a matter of general background, Al-
gerio sold parts both wholesale to nearby shops and
retail to customers, which covered distribution of parts
for repair of units serviced in the shop. He also ordered
repair services from certain suppliers as required for Re-
spondent's shopwork. Everything that was ordered from
outside the shop was charged on Respondent's credit for
bookkeeping purposes. When Algerio received the parts
or services ordered, he would receive accompanying de-
livery invoices from the supplier of same. Algerio main-
tained a file in the parts room for each supplier of parts
of services to Respondent in which he would retain the
delivery invoices, and, at the end of the month (or when
asked by the secretary who maintained her own invoice
files), he would give the supplier files to the secretary for
the payment of the monthly outstanding supplier bills.
When items were sold retail (or wholesale) to customers
for cash, a numbered receipt was generated and given to
the customer, and a copy thereof with the cash was
passed on to the secretary through an open window be-
tween the parts department and the secretary's office. It
appears that the above facts are not disputed.
Algerio also testified that there was an established
practice in the shop whereby employees could order
parts from outside suppliers for themselves or friends,
utilizing Respondent's credit. In such cases, pursuant to
management's instructions, an unnumbered internal in-
voices was generated in the name of the employee when
the ordered part was received in the shop. (Parts were
delivered either the same or next day.) Frequently, Al-
gerio would collect the money on the spot when the part
came in. The money with the generated unnumbered in-
ternal invoice (original and copy) was then passed on to
the secretary. Apparently not infrequently in the case of
an employee purchase, if the part arrived in the begin-
ning or middle of the week, Algerio would accept a later
payment on Friday when the employee received his pay-
check. On cross-examination Algerio clarified that, when
the part (or service) came in, he would usually sign for
the delivery. In the case of a part for an employee, he
would then mark on the supplier delivery invoice that
the particular part was received for the particular em-
ployee, and then generate an unnumbered invoice for
that employee also with cross-reference to the supplier
invoice number. If a repair service similarly was ordered
and came in, he would also sign for the repaired item,
then generate the internal invoice and put on that inter-
nal invoice the number of the repair supplier invoice.
RAYCOR Co. 9
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The delivery invoice for repairs service would then go
into his supplier file of such bills to be paid at the end of
the month. According to Algerio, disputed in part by
Respondent, prior to receipt of the money in payment
for the part (service) purchased by an employee or a
local customer, both the customer's or employee's (re-
ceipt) invoice and the Company's copy thereof (whether
numbered or unnumbered) were maintained on a clip-
board kept in the parts room pending payment. Algerio
relates that the employee would normally pay by Friday,
if he did not pay in cash immediately; but, contrary to
Respondent, Algerio testified that there was no estab-
lished rule as to how employees should pay.4 4
Corssen Sr., testifying generally as to Raycor's overall
invoice and billing operational procedures, confirmed
that, when a delivery was made by a supplier or repair
service, i.e., by the Emil Nass delivery man, a delivery
(yellow copy) invoice went to Algerio which served as a
receiving ticket. Corssen Sr. added that supplier Nass
would subsequently send Respondent a monthly state-
ment, or bill, with duplicate invoices for the month at-
tached, which went to the front office (Benson). These
two Nass invoices later came together for review when
the bill was to be paid. In general, the front office went
through the invoices, comparing the invoice numbers
and amount on the yellow copy with the statement's in-
voice; and, after that comparision was made, the bill was
ready to be paid as that check indicated everything was
taken care of. Corssen Sr. related that he normally was
not involved with these procedures prior to payment.
Benson fully corroborated Corssen Sr. with still addi-
tional operative detail provided as to the billing proce-
dures from her vantage point. Thus, Benson testified that
the normal billing and payment procedure was as fol-
lows: Every month Respondent would receive a monthly
billing statement from their suppliers, including e.g.,
"Emil Nass." She would receive together with the bill-
ing statement a white invoice copy for each of the re-
flected part/repair services supplied. This would identify
to her what was purchased/ordered in that monthly
period. She confirms that, when parts, etc., were re-
ceived at the shop, they were accompanied by a color-
coded delivery/packing slip or invoice which would be
normally signed for by Algerio as received by him and
then kept in supplier folders in the parts department
drawer. At the time of intended payment of the suppli-
ers, Benson would ask Algerio for such delivery invoices
(or in his absence obtain them herself), match them up
with the invoices which accompanied the billing state-
ment, prepare an appropriate check, and pass the afore-
said billing statement and matched white and color-
coded invoices on with the check for Corssen's final
review and check signature. (Only Corssen Sr. or
Schmal were authorized to sign checks.) If she were not
paying the supplier bill for the month, she would merely
staple the white invoices to the monthly billing statement
and retain the same in her pending file for that supplier
44 Falabella testified his practice way to pay on the spot. Labriola's
practice was to pay on the following payday (Friday) Gourlay did riot
charge such items. Stone's practices apparently were to pay anywhere
from the same day to by the second Friday except as to certain motor
repair work performed by "Emil Nass," discussed infra.
until payment was to be made. During the same period,
the delivery invoices would be retained in Algerio's files.
Benson confirms (contrary to Stone's understanding) that
Corssen would thus not normally know any part, etc.,
had been purchased from a supplier until it was being
paid for.
President Corssen confirmed that employees have been
allowed to charge parts (ordered outside) with Algerio,
and that occasionally an employee has asked him or
Schmal for a deferred payment, which has been granted.
He also candidly admitted that he had never told Al-
gerio that he was not to permit credit to be extended to
employees over a certain amount, though he also could
not remember an employee ever having had repair work
sent out. Corssen Sr., however, testified in a firm manner
that he instructed Algerio a year previously that every
internal (employee) charge had to go up front right away
or at the latest by that Friday, so the item would get
paid for, or they would know about it. On rebuttal Al-
gerio confirmed that he was instructed to write up such
internal invoices, but denied that he was instructed to
pass the internal invoice up to the secretary that same
day or that week.
Benson's regular duties included the custody of and
comparison of all billing statements and invoices and
preparation of all checks for payment. She confirmed
that the BMW bill was the largest bill and was paid
every month. Benson recalled that the BMW parts bills
in the period June through August were quite high; and
that in this same period she had occasion to hold back on
payment of some other supplier bills because they were
having trouble getting money together to pay all the bills
since most of their cash flow was going to pay the BMW
monthly account. Benson specifically recalled that July
and August were two such bad months; and she testified
that the monthly statement of "Emil Nass" was one such
deferred bill. Another was that of supplier Select Auto
Radio, Inc. 4 5
is According to Corssen, it was about mid-August when a supplier,
Select Auto Radio, Inc. (SAR), visited Raycor and requested that their
overdue bill be paid. The record reveals that the bill was paid on August
15 In reviewing the SAR statement of July 31, covering the June and
July purchases. Corssen Sr related that he came across one item which
he could not identify He asked Algerio about it, and Algerio told him
that it was fr an amplifier which he had ordered for himself Algerio
also acknowledged that he had not paid the bill yet Algerio told Corssen
Sr. that he could lnot find the (internal) bill, saying that he would look for
it and pay it right away Respondent introduced in to evidence the corre-
sponding internal ivoice fr Algerio (Resp Exh. I I) hbearing the date of
July 5, which establishes the bill was paid However, the date f actual
payment is rnot indicated, though it is clear on this record it was not paid
until after August 15, as I credit Corssen's testimony in that regard Al-
though Respondent has conceded that the above incident had nothing di-
rectly to do with Algerio's subsequent discharge, the incident is advanced
by Respondent as supportive of Corssen's bases to subsequently question
the more seriously iewed activities of Algerio in the running of the parts
department, which it contends also came to light only later. General
Counsel established that President Corssen had issued no warning to Al-
gerio in regard to the failure to pay the SAR bill timely or otherwise.
However, President Corssen testified that this was the first such incident
which had come to his attention; and Algerio, on rebuttal, acknowledged
that there was disappointment on Corssen's part that he had not gotten
the bill right away. Nonetheless, Corssen Sr. candidly related that he did
not conclude or suspect from this incident that Algerio was not an honest
employee
-
RAYCOR CO. 581
Benson also essentially corroborated President Corssen
as to the handling of internal invoices on employee pur-
chases. Thus, Benson testified that the procedure for an
employee purchase was that Algerio would prepare an
internal invoice in duplicate. The latter would normally
be passed on with the cash, marked paid by her, and an
invoice then returned to the employee to serve as a re-
ceipt with an invoice copy passed on for Corssen's
review, which he then retained on file. Benson thus fur-
ther confirmed that Corssen would not normally know
that an employee purchased a part until it was paid for.
However, according to Benson (and contray to Algerio),
if an employee had a charge that was to be held for
more than a week or two, it was handled otherwise.
Benson thus testified that, when she first started in May
1974 (2 years before Algerio) she was instructed by
Corssen Sr. that employees had to get permission to
make large orders through the shop; that usually the
parts manager would pass charges on with cash when
employees got paid; and that, if the charge was going to
be held longer, Corssen wanted to know about it, as they
would have to have permission. Thus, Benson essentially
confirmed President Corssen in also testifying that, if an
employee had a charge that was to be held for more
than a week or two, the (internal) invoice (unpaid) was,
passed on to her and retained in a holder on her desk as
a reminder to check with Algerio to obtain payment at
the time it was promised to be paid.46
The essential procedural dispute on general procedures
is thus observed to be that Algerio contended that he
had received no instruction to pass up the internal in-
voices in regard to unpaid employee bills, while Corssen,
with supportive testimony of Benson, contended that he
had, and that it was the practice. At this juncture I
would only note in passing that Benson also testified
that, if certain Stone internal invoices in regard to repair
work performed by "Emil Nass" had been passed up to
her unpaid, she would have promptly brought it to Presi-
dent Corssen's attention.
Stone's Repair Work In and Out of the Shop
Respondent regularly permits its employees to perform
personal work on cars on their own time at its premises.
Thus, Stone, in early summer after first securing
Schmal's permission, brought his brother's car on the
premises to work on a transmission. Upon breaking the
transmission down, he discovered there were defective
parts, and requested permission from Corssen Sr. for the
car to remain on the premises while awaiting delivery of
the required replacement parts which were not pur-
chased through Respondent nor locally obtainable. Per-
mission was granted. Other employees engaged in similar
actions.
46 Benson testified credibly that she herself had purchased tires (over
$100) in just the prior Christmas (1976). and had obtained Corssen's per-
mission to carry it over the holidays. She also notified Schmal that such
permission had been given. (Benson made lump sum payment after 3 to 4
weeks for her large purchase.) On rebuttal Algerio relates that he was in
charge of receiving the money from the employee on a parts purchase,
and that he had only passed employee bills (internal invoices) up one time
in regard to a Stadnyck purchase. There is no question that most employ-
ee purchases were in small amounts and paid promptly.
In the interim Stone had agreed to do some engine
repair work for a neighbor apparently at cost, and as it
developed the engine required essentially an overhaul.4 7
The payment arrangement Stone had made with the
neighbor was that, when the parts were repaired, the
neighbor (an over-the-road truckdriver) would pay
Stone. Stone did not foresee or anticipate there would be
any difficulty in contacting the neighbor when the re-
pairs were done, nor in collecting payment. As we shall
see, Stone had miscalculated on both counts.
Stone told Algerio that he wanted to have the work
done and the payment arrangements he had made, and
Algerio agreed to send the work out. According to
Stone, Algerio sent the cylinder head out first to "Emil
Nass" for repair about the third week in June.48
Stone testified that this was not a secretive request on
his part. He related that, on the occasion when the cylin-
der head was initially sent out to Emil Nass for the re-
pairs, Schmal had asked him what it was for. Stone told
Schmal it was a "Vega" head that he was sending to
Emil Nass to have work done. On this record it appears
no other employee had previously sent repair work out
to "Emil Nass" using Raycor credit. Stone did not tell
Schmal for whom the work was to be done, nor did he
state clearly that he was going to have the bill charged
to Respondent. He certainly did not ask Schmal's permis-
sion and I am convinced, in any event, that he did not
receive Schmal's permission. 49
The Vega cylinder head was repaired by "Emil Nass"
and returned on June 28 accompanied by a delivery or
packing invoice from "Emil Nass" in the amount of
$82.93. Algerio, who remembered receiving the head,
did not sign for the delivery, contrary to his usual
custom unless he was out. However, according to Al-
gerio, he did put Stone's name on the delivery invoice. It
is Algerio's testimony also that he did generate an inter-
nal invoice for this repair service in Stone's name,
though he asserts the same was not available and thus
not produced at the hearing. The head was at all times
kept in the parts room under Algerio's control. Stone did
not pay for that work on the following Friday, July 1,
nor on the following Friday, July 8.
Stone also recalled that it was sometime in July that
Corssen Sr. came up to Stone and asked him what the
47 The work required on the engine was major, viz, required repair
service on the cylinder head (new bearings, valve seats cut, disassembling
and reassembling), purchase of a new gasket, and repair service to the
engine short block (new rings, sleeves, rod bearings, and crank bearings).
4' Algerio's testimony as to when the cylinder head and short block
were initially sent out and returned was not consistent with Stone's recol-
lections, and Algerio's rebuttal testimony relative thereto was at best con-
fused and at worst contradictory. I thus credit Algerio in such matters
only to the extent readily appearing consistent with the credited testinmo-
ny of Stone, that of other witnesses, and available documentary evidence.
49 Schmal testified that some employees did ask his permission to
order parts, which he granted, though he also conceded that some em-
ployees may have gone directly to Algerio without his knowledge. As far
as Schmal was concerned, however, Stone should have first asked his
permission on such a costly item as a simple matter of courtesy if for no
other reason. I am wholly convinced Schmal did not authorize Stone's
use of Respondent's credit in this matter, nor did he have clear cause to
even conclude such was being done at the time. On the other hand, it
appears there was no established rule that Stone may be regarded as
having broken in requesting Algerio to have this work sent out or in get-
ting Algerio's approval
RAYCOR CO. 581
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
head was doing in the parts room. Stone told Corssen
that the work on the head had been done for a friend of
his who had not given him any money toward it, and
that he was not going to give the head to the friend until
the latter gave Stone the money. Corssen Sr. replied,
"All right," and just walked away. (Corssen Sr. did not
specifically deny this conversation.) It thus appears that
it was on the basis of this conversation that Stone be-
lieved that Corssen Sr. was made aware that money was
due Raycor (at least then on the head, $82.91) on the ra-
tionale that, if the money were due Stone, he could have
stored the part at his own house. 0 However, in any
event, Stone acknowledged that he was not sure that he
and Corssen Sr. had talked about the engine block, and I
find that they had not, as I am convinced by the evi-
dence that the short block had not as of that time even
been sent out to Emil Nass. Stone significantly also ac-
knowledged that Corssen Sr. did not talk to him about
the matter again; that is, prior to Stone's discharge. (Al-
gerio's apparently intended corroboration shortly before
the discharge is not credited.) Corssen Sr. did not specifi-
cally deny this conversation. However, Corssen Sr. did
deny that he was previously aware that the head and
short block were repaired on Raycor's credit.
In point of fact the engine block was not sent out for
repairs prior to the return of the repaired cylinder head
as Algerio had testified. Rather, I find that the block was
sent out as Stone recalled, about 17 days prior to its
return. As the record clearly reveals that the engine
block was initially returned on July 29, Stone's recollec-
tion would place the engine block as being sent out to
Emil Nass for the repairs in mid-July, or about July 12,
thus well after the cylinder head's return on June 28,
which is wholly compatible with an earlier occurrence
of the Stone-Corssen Sr. above conversation.
Stone testified that the largest personal order he had
previously placed was $20 to $30 and acknowledged that
the eventual combined cost for the repair of the head
and block and the gasket charge was much more sub-
stantial. Stone also acknowledged that he had never
asked permission to send the engine block out using the
company name or credit, though he testified also that he
was never told that he needed permission from manage-
ment to have the engine parts worked on for personal
business. He asserts that he never tried to keep the
engine block concealed from Respondent. Nonetheless, it
has been observed that the cost of the head billed by
Nass to Respondent for Stone's requested work was not
paid for promptly by Stone on the next Friday, July 1,
nor by the following Friday, July 8; and significantly
Stone also acknowledged that Algerio had already un-
successfully asked him a couple of times in July for a
payment.
Stone testified that, when the engine block came in re-
paired (on July 29, a Friday), he and Labriola had taken
it off the truck, and that he had brought it home that
same night. (Stone's name appears on this delivery in-
voice also, again put on there by Algerio. Again Algerio
bO This inference is, of course, not an exclusive one. Corseen had al-
ready authorized Stone to keep his brother's car on the premises if kept
out of the way. The cylinder head was always kept out of the way on a
lower shelf in the parts room.
did not sign for delivery.) The remaining work was to be
done at the neighbor's premises. However, Stone was
unable to deliver the engine block that evening to the
neighbor, who was apparently on the road and not there.
When Stone brought the block to his own home, he dis-
covered there was a lip raised (on a sleeving), which
would prevent the head from seating properly. Stone
brought the block in to the shop again (probably on the
next workday, August 1), and the block was immediately
returned to Emil Nass to have the necessary correction
effected, which was apparently done promptly. This time
when the block came in Stone did not immediately bring
it to the neighbor's premises, but did notify him that the
parts were now all in. The neighbor agreed to give
Stone the money. However, the next time Stone went
there the neighbor was again not there. In succeeding
days and weeks contact was not made, though messages
were repeatedly left with the neighbor's wife, eventually
to the point that Stone was forced to finally accept that
he was being put off and stalled, which Algerio earlier
concluded and confirms. Stone also acknowledged that
on several occasions in August Algerio continued to in-
quire of him about payment, which continued to not be
forthcoming. I credit Stone as to the foregoing. There is
major conflict in the evidence as to what followed.
It was Algerio's testimony that, after the return of the
repaired engine (short block), he had generated a second
internal invoice, dated August 3, and that he consolidated
an earlier prepared (June 28) internal invoice with it.
However, Algerio acknowledged that he had never done
that before, and his advanced reason for doing so on this
occasion, viz, maybe the first one was shabby, was simply
wholly unconvincing, and is not credited.
Stone's explanation for the subsequent removal of the
engine from the premises was as follows: Stone testified
that, when Nass brought the engine block back the
second time, he kept the block on the premises in the
shop because the neighbor had not given him any money
toward it. Stone recalled that it was the day before they
were to have a BMW delegate visit the shop and that,
while they were cleaning up the shop, Corssen Jr. asked
him what the block was doing there. (Stone otherwise
recalled this incident as occurring before he signed a
card with the Union, thus pre-August 9.) Stone related
that he told Corssen Jr., "We sent the block out and it
came back," but the guy had not given him any payment
on it, and that he was leaving it there until it was paid.
According to Stone, Corssen Jr. told him to remove it
because they were cleaning up the shop for the delegate
who was arriving the next day. Stone told Corssen Jr.
there was no money received; and Corssen, Jr. replied
that he was not to worry about it, but to take it home,
and, when Stone got the money, to pay for it. Stone then
removed the engine. Algerio offers a supportive inde-
pendent conversation with Corssen Jr., but to the effect
that it was Algerio who was requiring Stone to keep it
on the premises. Corssen Jr. did not deny issuing clean
up instructions at this time, though he only recalled issu-
ing them to the cleaners. Corssen Jr. did deny knowl-
edge of the engine repair and the pledge of Raycor
credit on the engine until told about it after the dis-
charges. Respondent established that there were other
RAYCOR CO. 583
clear instances of discrepancies in Stone's and Algerio's
testimony relative to company knowledge of Stone's re-
sponsibility on the pledge of Raycor credit. Thus, in a
prior affidavit presented to the Region during the investi-
gation of the charge, Stone therein had related that,
when it came in, he had paid Corssen Sr. $290 of the
$500 it cost; that sometime in June the cylinder head was
sitting in the parts department; that Corssen Jr. asked
Stone what it was doing there; and that Stone told Cors-
sen Jr. that he was keeping it there as collateral "until I
got the other money." (Emphasis supplied.) At the hear-
ing Stone admitted the above statements were incorrect
in that the sum of $290 was not paid until after he was
discharged (discussed infra), and asserts it was the block
and not the head which was the subject of a Corssen Jr.
conversation. (Corssen Jr. essentially has denied such
conversation). Under the circumstances of these contra-
dictions in this area, I find that Stone's testimony suffers
major infirmities to a degree not cured by Algerio's sup-
port, whose own supportive statement I might add has
seemingly incredibly contained similar inaccuracies
which he also has subsequently retracted. Accordingly, I
shall place no reliance therein. I further am convinced
and I find the contrary to be true that Corssen Jr. was
not aware of the pledge of Raycor's credit on such
engine work of Stone at that time.
Schmal testified that he also was not aware of such use
of Raycor's credit, nor even aware that this engine block
was in the shop. Schmal related that Raycor sends
engine blocks out for repair, and there are many engine
blocks standing around. Schmal testified additionally that
he knew there was a whole engine in the shop from Pet-
tinato's van, because Pettinato had told him about it, and
he knew that Stone's transmission was there, because
Stone had asked him if he could work on it. However,
Schmal testified, and, I find, convincingly so, that he was
not aware of Stone's engine block being in the shop, nor
that it had gone out for repair, as Stone had not asked
him about it, adding, "if you don't look for it, you don't
see it. 5
Respondent's Awareness of Algerio's Handling of
Stone's Internal Invoices
As noted earlier, Michael Corssen was working with
Algerio in the parts room in August."5 He testified that
it was one day in late August, I find probably Friday,
August 26, 53 while working up front in the parts room,
sl It is noted that, when the engine was brought in and initially re-
turned, it was there only a day. Although I am convinced the block was
in the shop after its final repair for at least several days (essentially con-
firmed by Gourlay), I nonetheless credit Schmal's testimony that he was
not thereby made aware that an engine block had been sent out by Al-
gerio for Stone and repaired on Raycor's credit.
52 Michael Corssen testified that he had no discussions with anyone
about the Union, and that he had neither attended nor had he heard
about the August I I group employee meeting at which the Union was
discussed. There is no evidence to the contrary. I credit Michael Corssen
that neither the employees nor Raycor management had involved him in
discussions about the Union.
"3 The record is unclear as to the precise day of this incident, though
it is clear beyond any question that the incident had occurred between
Friday. August 26, and Monday, August 29. It was Michael Corssen's
recollection that Algerio was working on that day, which would indicate
the occurrence was on either that Friday or Monday as Algerio did not
that he had received a routine call from a customer, Ja-
cobsen's Garage, inquiring as to what was the amount of
their outstanding bill.
In that regard Michael Corssen testified that outstand-
ing bills of customers were regularly kept on a clipboard,
which was itself kept in the parts room in either of two
places, either hanging on a shelf (its usual place) or in a
desk drawer, which had restricted visible access, but
where from time to time it could also be found. On this
occasion he looked for the clipboard, eventually locating
it in the desk drawer. He estimated that there were about
12 invoices on the clipboard at this time. In looking
through the invoices for the Jacobsen Garage invoice, he
came across two internal invoices (actually an original
and copy of one internal invoice), which were folded
over and located about three-fourths of the way down
amongst the other invoices on the clipboard. Corssen tes-
tified that, on opening the folded invoices, he observed
essentially that the invoices comprised one internal in-
voice made out to Stone, and that the amount was high;
and he noted also at the time that they were the only
two such invoices folded in that manner. Michael Cors-
sen related that he left the clipboard as he found it.
However, later that same day, when he had occasion to
see his father, he told him about the high bills (in-
voices). 54 According to Michael Corssen, his father re-
plied at that time he was glad that he (Michael Corssen)
had brought them to his attention because he (Corssen
Sr.) did not know about them. Michael Corssen placed
the time of this conversation with his father as about 3-4
work on the weekend. However, Michael Corssen recalled otherwise
only generally that Algerio was apparently somewhere else in the back
when he took the call. Corssen Sr recalled that it was a few days after
this matter was brought to his attention by his son before he was able to
reach Rosenberg who was on vacation. Rosenberg had started his vaca-
tion on August 26, and the record has convincingly established that Cors-
sen Sr. was able to establish direct contact with Rosenberg on August 30,
which would appear to rule out Monday and seem to suggest his son's
report was made to him on that Friday, or Saturday, August 27. That it
might have been Saturday is not without some support, as Schmal
seemed to recall talking to Corssen about this matter later on a Sunday,
albeit unsurely; and Benson compatibly related being told later by Cors-
sen, Sr. that Michael Corssen had found the certain invoices in question
over the weekend. However, on balance, in view of Michael Corssen's
recollections that Algerio was working that day and that the shop was
busy, I thus conclude and find that the incident more probably occurred
on Friday, August 26
s4 Michael Corssen explains that he did so at that time because the
bills were high and because they normally did not give that much credit
to employees. General Counsel established on cross-examination of Mi-
chael Corssen that he did not actually know if there was an established
rule as to how high an employee's credit could go, nor if there was a rule
that an employee had to ask permission if he went over a certain amount
On the other hand, Michael Corssen also testified that he had never seen
an employee's bill that went over $100, and the gravamen of Algerio's
testimony would confirm such was rare. On cross-examination Michael
Corssen further acknowledged that Algerio knew that he had access to
the clipboard; that he would have occasion to look at the clipboard as
part of his job: and that Algerio had never told him not to look in the
desk or at the clipboard. However, Michael Corssen also significantly tes-
tified that he had had prior occasion to look through this same clipboard
some 5 to 10 times, but had not previously seen these folder invoices. I
credit Michael Corssen as to his observations on the prior condition of
the clipboard and as to the circumstances of his discovery of the in-
voices. I further conclude and find it quite feasible that Michael Corssen,
upon coming across such invoices under the circumstances he has de-
scribed, would have brought it to his father's attention privately in the
manner he has related
RAYCOR Co.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
p.m., recalling also that the shop was still very busy. He
testified that it was later that day after work hours were
over he accompanied his father back to the parts room,
located the clipboard in the same place, and showed his
father the Stone internal invoice(s) dated August 3 (in
evidence) which referenced certain motor repair work
was done by "Emil Nass" in the (total) amount of
$468.84; then Michael Corssen left for the day. I credit
Michael Corssen in his above account of the incidents
occurring on Friday, August 26.55
Corssen Sr. sometime later spoke with Schmal about
the matter. At that time they looked at the Stone (con-
solidated) internal invoice which is dated August 3. (It
first lists a rebuilding of an engine at a cost of $385.91
with reference only to "Nass" invoice #9865, secondly
lists a (cylinder head job in the amount of $82.93), and
finally shows the total amount due as $468.84.) They
then went to the front office and retrieved and reviewed
the pertinent "Emil Nass" statement invoices (in evi-
dence) from which they observed that "Emil Nass" in-
voice #9865 (referenced on the August 3 internal in-
voice) bears the delivery date of July 29, covering a 1972
Vega engine rebuilding (re: short block), with a corre-
sponding amount of $385.91; and that the cylinder head
repair and its cost does not appear thereon. From their
review of "Emil Nass" invoice #2307 (unreferenced by
Stone's internal invoice), they observed that the above
secondly listed cylinder head work of comparable charge
$82.93 had a much earlier delivery date viz., June 28. It is
reasonably inferable otherwise from this record, and I
find, that they reviewed also the "Emil Nass" delivery
invoices, and thus would have also been immediately
aware that each of the same bore the name of Stone,
with no showing of delivery acceptance by Algerio.
Schmal confirms the review was made; and his testi-
mony is that thereafter they decided that they had to do
something about it, as it involved quite a bit of money,
and that they decided that night to let Algerio and Stone
go. Schmal explains this was decided because Stone had
used a substantial amount of their money without asking,
and he felt there was a substantial chance that the bill
would not be paid. Schmal acknowledged that he had
not set a credit limit on employee purchases, but asserts
they had trusted Algerio; and he also felt that Stone
should have initially asked their permission on such a
large amount, and that either Algerio or Stone should
have at least reported to them that Stone was experienc-
ing difficulty in making payment on such a large amount.
However, on cross-examination, Schmal revealed he had
apparently entertained consideration of another elemental
chance, viz, that they could have gotten away without
paying it at all. Thus Schmal thereupon explained that,
when a delivery arrives, the bill (delivery or packing in-
voice) may be signed by one who is there at the time the
truck arrives. Thus, Schmal testified this bill was signed
55 President Corssen essentially corroborated Michael Corssen in testi-
fying as to these matters. Thus, he testified that it was one afternoon in
late August. after the election conference of August 25 had been held.
that his son Michael had come up to him and asked him, "Dad do you
know about two invoices on the clipboard, a large amount of money
over 400?"; that he had replied "No";: and that his son had also men-
tioned that he had been looking for a garage bill at the time he came
upon them.
only by Ray Stone, and it was thus possible that the bill
could have gone through the front office without any-
body knowing it. Schmal testified that the secretary
would look at its being signed as meaning only that we
received it.56 Nonetheless, Schmal testified, with the
election coming up, there was still a question whether
they could do this. Corssen Sr. thus corroborates Schmal
that he and Schmal felt the charges were bad enough to
fire these employees, but that they also knew the election
was coming up and did not know the laws; and that they
were in that regard confused as to what to do. Schmal
corroborated Corssen Sr. with specific recollection of
the Board's posted notice in regard to prohibited threats
and discharges. In any event, Corssen Sr.'s action, as
might now be regarded as customary, was in fact, to at-
tempt to contact the vacationing Rosenberg. On success-
fully doing so on August 30, he reported to Rosenberg
what they had found on the invoices. Rosenberg told
Corssen he would call the Board's Region and find out
about their right to discharge.
Rosenberg testified that on August 26, he left on vaca-
tion to South Carolina, and did not return until Saturday,
September 3. According to Rosenberg, in the interim he
either checked with his office on Tuesday, August 30,
and was advised that Corssen Sr. had called and wanted
Rosenberg to call him, or Corssen Sr. obtained a number
where he could be reached from his office and contacted
Rosenberg. In any event, I credit Rosenberg as to the
date he called Corssen Sr. (through information), as he
was convincingly sure of it because he had his secretary
check the long-distance billing date on it.
Rosenberg corroborated Corssen Sr. that in their ini-
tial phone call Corssen Sr. told Rosenberg that he had
found several invoices amounting to over $400 in the
parts department drawer that had never been put
through the company books, that they were not billed
according to the normal course of billing by the parts de-
partment, that they were for parts and work done for
employee Ray Stone-one for work dating back to June,
that no sales invoice was ever prepared, that for 2
months nobody in the firm was aware of it, that Corssen
Sr. considered it a violation of a code of ethics, and that
he suspected collusion on the part of Algerio and Stone
in trying to deceive the Company in view of not billing
them out in the normal procedure. (Rosenberg testified
that he stated to Corssen it was not only deception but
sounded like embezzlement to him, and that it warranted
16 Benson testified that, if an employee purchased a part and an inter-
Ial invoice were not passed on to her, there was no way she would know
the part purchase was by an employee, and that there is no indication on
the delivery or packing slip itself as to who might have purchased the
part. On the other hand, Benson testified that, had she seen the "Nass"
delivery or packing invoice(s) with Stone's name appearing on it (them)
she would have brought that to the attention of Corssen Sr. because of
the amount. Thus, Schmal's concern over a possibility that the Stone
charge(s) might not have been brought to the attention of Raycor at all
(which enters the asserted risk of going unpaid), at least from Benson's
vantage point, was seemingly unfounded However, such presumes her
notice, not an insignificant questionable consideration, as Benson also tes-
tified that in her comparision (matching) of the delivery and statement
invoices she would generally be interested only in comparing the invoice
numbers and amounts with the billing statement Significant was Cors-
sen's additional observation in this area that Benson would properly
assume that Algerio had taken care of such a matter, as Algerio admitted.
RAYCOR CO. 585
further investigation.) According to Rosenberg, Corssen
stated at that time that he was very disturbed about it,
that he was considering firing these two men for this, but
with the vote (election) coming up he did not know if he
had the right to do so. Rosenberg suggested (and Cors-
sen then agreed) that Rosenberg contact the Regional
Office for information on the subject, which Rosenberg
proceeded to do.
Rosenberg related that he contacted the Board agent
who had handled the representation matter, and that he
described the above circumstances and stated that he
wanted to know what their rights to discharge were
since the election was forthcoming and they were pres-
ently involved with the Union at the time. It was stipu-
lated by the parties that the aforesaid Board agent of the
Regional Office informed Rosenberg that Respondent
had the right to fire an employee for just cause, but that
it could not fire an employee for union membership or
activity.
Rosenberg called Corssen Sr. back and reported the
information he had obtained. According to Rosenberg,
not being an attorney, he did not advise Corssen whether
there was good cause to discharge the men, but rather
told Corssen that it was up to him and Schmal to make
that decision. However, Rosenberg otherwise admitted
he told President Corssen that Corssen could fire the
men without any repercussions. Rosenberg testified fur-
ther that he personally did not know the results of Ray-
cor's decision in this matter until he returned from vaca-
tion.
Corssen Sr. recalled that Algerio was busy that even-
ing until after 5 p.m. President Corssen became busy on
another matter. In the interim, Algerio punched out, and
Corssen Sr. then instructed Algerio to punch back on the
clock and wait for him. After finishing the other busi-
ness, President Corssen spoke to Algerio and told Al-
gerio that he had to let Algerio go for ordering too
many parts and covering up Ray Stone's bills or charges.
Corssen testified that he called Schmal up that evening
and informed him that he had terminated Algerio and
then instructed Schmal that he should terminate Ray
Stone the next day5 7 for charging against the Company
without asking. It is noted at this juncture that the assert-
ed reasons for discharging Algerio did not include an un-
authorized extension of credit to Stone, but rather his
covering up when timely payment by Stone was not
forthcoming.
Ray Stone's Discharge
Preliminarily it is observed that Stone related that Al-
gerio came by his house on August 30 and told Stone
that Corssen Sr. had called him into the office and told
Algerio that he had to let him go, that he was overor-
dering parts, and that he had extended credit too easily.
Stone related that he was surprised because he thought
51 It is to be noted that the next day was Wednsesday, August 31,
Corssen Sr.'s regular day off. Corssen Sr. thus advances two reasons why
he did not also personally terminate Stone; viz, first, Schmal ran the shop
and Stone was thus under Schmal, and secondly, because Wednesday was
his own day off, and he had not wanted to come into work solely for the
purpose of firing Stone. No explanation was offered why they were not
fired on the same day.
he had the engine matter straightened out with Crossen
Sr. Notably, Stone did not relate that Algerio reported
to him that he had been told the principal reason was
that business was slow.
Stone testified that he went to work the next day,
Wednesday, August 31, and worked the entire day; and
that about 5:15 p.m., Ray Corssen Jr. told Stone that
Schmal wanted to see him up front, and he went to
Schmal's office. Schmal told Stone that Corssen Sr. had
called Schmal up and stated that he was angry with
Stone because of the block arrangement, that it was not
paid for; and Schmal also told Stone that things were
slow and they were going to let him go. Stone related
that he was shocked at the time, and that he then told
Schmal he had informed Corssen Sr. what happened
about the block. According to Stone, Schmal replied that
Corssen Sr. had told Schmal that he did not know any-
thing about it; and Schmal then said, "Well, all I could
tell you is, why don't you come in tomorrow and talk to
Ray, Sr. and maybe you can get your job back."
Schmal's version was that on the evening of August 31
he sent Corssen Jr. to notify Stone he was to come to
Schmal's office. When Stone arrived, Schmal told him
that they had found the papers, and that, the way it
looks, because of the circumstances, they could not keep
him anymore; they had to terminate him. With some
hesitation, Schmal added that Stone said he felt sorry he
did ask, and on cross-examination related that Stone had
said, "Sorry, I should have told you." Schmal also
thought that Stone said he saw his (Schmal's) point.
On rebuttal Stone denied that Schmal had mentioned
finding some papers or talking about the invoices; and
Stone testified that he had not told Schmal he was sorry
he had not asked for permission, nor said that he saw
Schmal's point. Stone testified in this regard that he had
never received instructions from management that he
had to get permission, and that he had always gone to
Algerio in ordering parts, though on cross-examination
conceding he generally paid for the parts the week they
came in or the next week. Schmal's testimony in the
above respects was in part hesitantly given, and, in con-
trast, Stone's denial in these respects was more firmly
given and convincing. I credit Stone that he did not
make the remarks above attributed to him by Schmal.
Schmal also conceded that he gave no prior warning
to Stone, nor did he make any effort to seek an explana-
tion from Stone.a5 Schmal testified also that he had pre-
viously made up his mind that he was going to fire Stone
no matter what he heard from Stone, explaining that the
bills were lying there unpaid quite awhile and that they
had known nothing about them. Thus, it is observed that
Schmal complements Corssen's instruction that Schmal
was to discharge Stone for charging against the Compa-
ny without asking with observations that the bills were
higher, for a long time not paid, and there were risks
they would never be paid. That Schmal had justification
in being concerned that the bills would not be paid
5s In contrast, General Counsel established that Schmal had given one
prior warning to former employee Pettinato before Pettinato was fired
for repeated lateness and absences. However, the record also reveals that
Schmal had previously fired other employees for misconduct he deemed
serious without any prior warning extended.
RAYCOR Co.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seems reasonably evidenced in the circumstances that
Respondent was able to effect initial partial payment
only by withholding Stone's checks, and Respondent did
not obtain a final payment until October 13, some 6
weeks later.
Thus, Stone related that he came in the next day (Sep-
tember 1) and spoke to Corssen Sr. about 10:30-11 a.m.
However, Stone did not ask Corssen for his job, but
rather just told President Corssen that he came down to
pick up his tools and his pay. Corssen told Stone at that
time that he was going to have to sign his check over to
Raycor in partial payment on the engine and cylinder
head outstanding bills. According to Stone, he told Cors-
sen that he had told him about the engine. (Significantly,
Benson does not corroborate Stone on this point.) Ac-
cording to Stone, Corssen replied nothing was ever said,
and nobody posted anything. Stone asked about his tools,
and Corssen Sr. replied, "We're going to keep your tools
until you pay the balance." Stone testified that he has
never been offered his job back.
Stone explained that he had not asked for his job back
on this occasion because he thought he got laid off for
no legitimate reason at all. However, on cross-examina-
tion Stone admitted that he was aware Raycor was re-
sponsible for the bill to Nass, and that, when he used the
Corssen billing under his name, he in turn was responsi-
ble. Stone otherwise asserts that the Company must have
earlier known the amount due when they got the bills,
and that the Company never told him that he had to get
the money in by a certain day. However, fundamentally
significant on even this consideration was his other testi-
mony that he knew he owed for the bill, but that he did
not have the money to take out of his pocket and give
and that was what it came down to.
Stone testified otherwise that he personally did noth-
ing to conceal his engine repair arrangement. In that re-
spect, Stone acknowledged that he did not talk to Al-
gerio when the block came in the first time, but that Al-
gerio was aware it had arrived as he was when the block
came back the second time; that he was not sure about
the invoice from Nass; that he did not know if Algerio
had made out an internal invoice because he never saw
it; and that he did have occasion to have Algerio check
the clipboard for his current internal invoices (on brake
pads and cylinders), and did not see the August 3 invoice
on the engine and head there at that time though it could
have been there. Stone related that he and Algerio then
contacted Elliott and informed him they had been dis-
charged. According to Stone, Elliott told them not to do
anything; that they would have a meeting.
The Union Meeting on the Discharges
After the discharges of Algerio and Stone were re-
ported to Elliott, according to Elliott, a second meeting
with employees was then arranged for September 2
(Friday) to determine what action should be taken. The
meeting was held at Dell's Bar. Employees present were
Algerio, Stone, Labriola, and Falabella. Elliott initially
related on direct examination that the employees told
him that they did not know why they were fired. How-
ever, on cross-examination Elliott related that Algerio
told him that Respondent said Algerio was fired because
he had overordered parts, and that Stone was fired over
some outstanding bill he had. It was decided that Elliott
would file a charge; and that after the holiday they
would go ask Respondent to reinstate employees Algerio
and Stone. Significantly, Elliott made no reference to
any report of a conversation Labriola has testified that
he had had earlier at the end of work that very day with
President Corssen.
Thus, Labriola testified that on the Friday (September
2) before Labor Day (September 5) Schmal had already
gone, and he was in the shop getting ready to wash up
when Ray Corssen Sr. came up to him and said, "Russ,
now that we got rid of the unionistic troublemakers let's
have a beer." Labriola declined, saying that he had to go
home.59 Labriola confirmed that he attended the meet-
ing held on Friday, September 2. Seemingly incredulous-
ly, he did not report the conversation at the union meet-
ing, as Labriola related he did not report President Cors-
sen's remarks to Algerio and Stone until he returned to
work on the day after Labor Day, Tuesday, September
6, though the clear purpose of the aforesaid meeting was
discussion of the discharges of these employees.
Falabella, who testified next, confirmed a meeting of
the above employee which he also thought was at Dell's
Bar but was not sure. He confirms that the meeting
lasted about an hour; that the employees talked about the
recent terminations of Algerio and Stone; that Elliott
told the employees that he would go down to the shop
and demand that Algerio and Stone be reinstated; and
that Elliott said that, if they were not reinstated, they
would strike. Falabella confirmed all the employees, in-
cluding Labriola, agreed. (Respondent established that in
a prior statement Falabella had said, "All present at the
meeting agreed to go on strike.") Falabella also testified
initially that it was some time after Stone was fired and
before Labor Day that Labriola had reported to him that
Ray Corssen, Sr. came to him and said, "Now that we
have gotten rid of the unionistic troublemakers let's have
a beer." 6° However, on reflection, Falabella recalled the
report from Labriola as occurring either on that Friday,
September 2, or the day after Labor Day when they
came back to work from the weekend, Tuesday, Septem-
ber 6; thereafter, on further reflection, he related that
Labriola's report had to be after that Friday weekend.
Algerio also recalled the men met on Friday, Septem-
ber 2, relating that the meeting on Friday must have
been at Dell's Bar, and present must have been Russ La-
briola, Paul Falabella, Ray Stone, and himself. They
talked about it not being fair that Algerio and Stone
were fired and about what they should do. On cross-ex-
amination Algerio testified significantly that he did not
recall anyone bringing up anything unusual, thus implied-
ly confirming also that there was no report from La-
briola in the meeting of President Corssen's remark to
him. Thus, Algerio also related that it must have been
b9 Labriola testified without contradiction that it was just about every
weekend that President Corssen would invite employees to get together
at the end of the last workday and have a beer.
6n Respondent would have noted the similarity of Falabella's recollec-
tlion at the hearing with that of Labriola, and the dissimilarity of his hear-
ing testimony with a prior statement thereon given by Falabella on Octo-
ber 14. I have done so, and do not find such similarity and variance to be
of controlling significance in themselves.
RAYCOR CO. 587
after they were out on strike that Labriola had told them
that he was offered a beer now that they had gotten rid
of the union people, union troublemakers, union agita-
tors, whatever. (Algerio also could not recall whether
the word agitator or troublemaker was used, but remem-
bered there was a reference to union, and the last half
had something to do with trouble.)
Stone recalled the union meeting, confirmed the above
employees were in attendance, and related that Elliott
told the employees that the Union was trying to get in
the Company, that the Company was fighting it, and that
the Company had discharged Algerio and Stone for ille-
gitimate reasons. He also confirmed that Elliott told the
employees that he was going to go to the shop on Tues-
day morning (after the Labor Day holiday) and ask the
Company to reinstate Algerio and Stone; and, if the
Company refused, he was going to call a strike, and they
would picket. Stone's testimony confirmed also that La-
briola, at the meeting, was mad over the fact that Al-
gerio and Stone had been laid off and thought they all
should go out on strike. Stone was initially not sure what
night the meeting was held. Stone (alone) then related
that he did not think the meeting was on Friday as La-
briola and the others placed it because he recalled that
he was at home on that Friday when Labriola came to
his house and told him that Corssen Sr. had come up to
him in the shop and told Labriola to have a beer, that
they had gotten rid of the union agitators, or unionistic
agitators, though Stone also was not really sure what
words Labriola had exactly used.6 ' However, it will be
recalled that Labriola did not place the report made to
Stone as being made at Stone's home, but rather not until
Labriola returned to work on September 6.
Analysis, Ultimate Findings, and Conclusions
It is General Counsel's contention that no matter what
are the inconsistencies and contradictions in the testimo-
ny of the various witnesses, if Labriola's testimony is
credited that President Corssen made the statement that
they had gotten rid of the union (or unionistic) agitators
or troublemakers, it is reasonably established thereby that
antiunion motivation was an operative reason in the dis-
charge of both Algerio and Stone. General Counsel then
points out that President Corssen has not specifically
denied making such statement, and my review of the
record would appear to support this observation, though
I hasten to add Corssen Sr. has unequivocably more
broadly denied discharging either employee for engaging
in union activity, but rather did so for the presented rea-
sons.
Despite the lack of such a specific denial by Corssen
Sr., there are simply too many inconsistencies and/or im-
probabilities in the entire record bearing on this specific
matter for me to be convinced by General Counsel's ar-
gument in this respect. To begin with, there is an initial
inherent improbability that Corssen Sr., after having only
recently unquestionably exhibited grave concern over his
6' In a prior affidavit Stone gave on September 13. he had testified:
"On September 2 1977, Russ Labriola came over to my house after he
finished work and told me that as he was leaving Ray had bought beer"
Ray handed him a beer and said. "Have a drink. We can relax now that
we got rid of those union agitators."
prospective discharges of these men, as evidenced by
Rosenberg's inquiry made of the Region, would then
cavalierly make such a pronouncement to Labriola.
There is a second equally significant improbability, it
seems to me, that, had such a remark been made on
Friday at the end of work to Labriola as he recalls, he
would not have raised it at the union meeting which El-
liott and all but Stone had reported was held on Friday,
September 2. I do not overlook the evidentiary thrust of
varying but confirming reports by Stone, Algerio, and
Falabella that Labriola later made a report on such a
conversation to them, which under other circumstances
would be supportive of witness Labriola by tending to
prove that the matter was not one of recent fabrication
by Labriola. However, the conclusion appears as one in-
escapable to me that the versions of Algerio and Fala-
bella do not reduce the improbability that Labriola
would not have brought it up in the meeting that same
evening; and Stone's version, in seemingly escaping the
above second improbability only by recalling the union
meeting as being held on Thursday and a report on the
statement delivered at his home, does so at the eviden-
tiary price of disagreement with all the other witnesses'
seeming recollections that the meeting was held on
Friday, and is itself without any corroboration by La-
briola of such a visit to Stone's home, inasmuch as La-
briola had recalled it reported at another time and place.
Additionally, there have been other instances where I
have found Labriola's testimony not convincing in his
recollection of what others said, particularly those in-
volving readily discerned instances of union or antiunion
embellishment. I am thus not convinced by the weight of
the evidence that President Corssen in either substance
or effect told Labriola to have a beer now that they had
gotten rid of the union (or unionistic) agitators or trou-
blemakers. Nor do I find that the weight of the evidence
warrants a finding that either Algerio or Stone was fired
for their union activity rather than for the reasons ad-
vanced by Respondent: viz, in Algerio's case for overor-
dering parts and because Respondent concluded there
was a coverup in evidence of the large extension of
credit to Stone; and in Stone's instance for use of sub-
stantial credit of Respondent without asking and for fail-
ure to make payment on time without permission.
General Counsel's evidence shows that both Algerio
and Stone were active union adherents, and I have been
persuaded that prior to their discharge Respondent had
concluded that both Algerio and Stone were probably
for the Union. While, for reasons earlier explicated, I
have not found strong 8(a)(1) violations alleged, e.g.,
threats of plant closure, etc., nonetheless, I have found
other instances of 8(a)(1) violations sufficient, in my
view, to indicate that a degree of union animus existed.
Thus, it seems to me General Counsel has made out a
prima facie case of the discriminatory discharge of Al-
gerio and Stone absent a showing of economic or other
lawful justification. Even in that respect, clearly a dis-
charge may be an unfair labor practice if an unlawful
motive is shown to have played any part in the manage-
rial decision, The General Tire of Miami Beach, et al. v.
N.L.R.B., 332 F.2d 58, 60 (5th Cir. 1964). However, this
does not alter the basic principle (which needs no cita-
RAYCOR CO. _
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of authority) that an employer may discharge for
good reason, for bad reason, or no reason at all, pro-
vided the reason is not discriminatory. I would only note
further that, even if the case had presented stronger mo-
tivational circumstances, the Board has had occasion to
note in cases presenting appropriate circumstances, cf.
Klate Holt Company, 161 NLRB 1606, 1612 (1966), that:
The mere fact that an employer may desire to ter-
minate an employee because he engages in unwel-
come concerted activities does not, of itself, estab-
lish the unlawfulness of a subsequent discharge. If
an employee provides an employer with a sufficient
cause for his dismissal by engaging in conduct for
which he would have been terminated in any event,
and the employer discharges him for that reason,
the circumstance that the employer welcomed the
opportunity to discharge does not make it discrimi-
natory and therefore unlawful.
Here Respondent advances as the reason for the dis-
charge of Algerio as his overordering of parts and his
subsequently discovered conduct viewed as a coverup of
a substantial pledge of credit by employee Stone. That
Algerio was overordering parts, I have concluded, is
convincingly evidenced of record despite a concurrent
increase of sales. This had been an ongoing concern of
Raycor management for several months. Nor can I con-
clude that Respondent's asserted conclusion that Algerio
had engaged in a coverup is one shown to be unfounded,
suspect, or pretextual on this record, given, inter alia, the
established circumstances: the fact that these substantial
bills were not paid timely; the lack of convincing evi-
dence of prior awareness by Corssen Sr. or Schmal of
the high amount of Raycor credit pledged on Stone's
"Emil Nass" repair services, particularly in comparison
with prior plant amounts, prior pledges on parts only,
and prior lack of any credit extension on repair services;
the unusual circumstances of Michael Corssen's finding
of the internal invoice; the subsequently observed failure
of both "Nass" delivery invoices to show a delivery re-
ceipt by Algerio, as would be regarded as customary; the
lack of existence of an individual internal invoice for
both "Nass" billings, or stated another way, the consoli-
dation of invoices, never before done in this fashion; the
holding even then of the internal consolidated invoice,
despite it being long past due and forwardable under es-
tablished past plant practice in accordance with the
credible testimony of not only Corssen but Benson (an
individual clearly not antagonistic to Stone); the nature
of the consolidated internal invoice itself indicative (erro-
neously) of a later date of purchase; the failure of either
Algerio, in whom Respondent had deposited special trust
in the operation of the parts department and (at least im-
pliedly) in the extension of reasonable credit to employ-
ees, or even Stone to bring the problem as it developed
to management's attention when unforeseen difficulties in
effecting payment arose; and, finally, the seeming reason-
ableness of Corssen and Schmal's view of the risks of
nonpayment arising from all the above circumstances.
Furthermore, as indicated by Schmal's testimony of their
immediate reaction that they had to do something, in my
judgment Respondent would not have retained Algerio
in his position in any event. Cf. Klate Holt Co., supra. Al-
though I have noted Stone has raised the contention that
from his vantage point he had broken no published rule
that he was aware of, nonetheless, given Stone's basic in-
volvement in this matter and his failure to approach Re-
spondent even after the difficulty developed, and given
the same above circumstances, it appears to me that his
discharge is so intertwined therewith as to be inextrica-
ble therefrom without a substitution of my judgment for
that of Respondent's view of these circumstances. Thus,
the additional fact that Stone was not discharged until
the following day, being itself also otherwise explained
by Respondent, is at best a suspicious circumstance only.
Accordingly, I shall recommend that the 8(a)(1), (3), and
(5) complaint allegations in regard to the discharge of
Joseph Algerio and Raymond Stone be dismissed as
being without merit.
E. The Strike of September 6; and the Discharges of
Russell Labriola and Paul Falabella
To begin with, Labriola testified that on September 6
Rosenberg came up to Labriola at the latter's job station
and told him, "Russell, I am sorry we cannot use you
anymore." Labriola replied, "What is the idea, I got bills
to pay, I have to work." Rosenberg then repeated, "I am
sorry." According to Labriola, no other reason was
given him at the time for his termination. Labriola then
picked up his tools and in about 20 minutes left without
attempting to wait to speak to Schmal, who (I find) had
just previous to that given Labriola additional work.
Rosenberg denies the above. I credit Rosenberg.6 2
Thus, on September 6 Elliott, accompanied by Oliveri
and Joe Algerio, went to Respondent's premises (after
earlier meeting with Falabella and Labriola). Elliott
spoke to Corssen and told President Corssen that the dis-
charges of Algerio and Stone were unfair, and that El-
liott thought Respondent was trying to break his major-
ity. Elliott testified that Corssen Sr. replied, "I fired
them for a reason," but relates that Corssen Sr. did not
then tell him the reason. However, Algerio contrawise
recalled that, when Elliott said that he would like the
employees to be reinstated and that Raycor was being
unfair, Corssen had replied, "No," that Algerio would
make Corssen bankrupt or run him out of business be-
cause of his parts ordering, and that he could not afford
to take Algerio back. According to Algerio, Elliott then
said, "Well, that is your decision"; and Oliveri, who was
also present, then said to employee Falabella, "All right,
you can stop work now, we are going to go out on
strike." Falabella thereupon left. According to Algerio,
Oliveri then walked to the back of the shop and told La-
briola that they were walking out. Algerio related that
Labriola collected his tools, drove his car off the prem-
6z It would serve no useful purpose to delineate all the inconsistencies
in Labriola's recollections in this matter. Suffice it to say that the weight
of the evidence, including in substantial measure evidence emanating
from General Counsel's own witnesses, has wholly convinced me that
Labriola favored and urged strike action over the discharge of Algerio
and Stone; had planned to engage in such strike action; and was not ter-
minated by Rosenberg, but rather, in fact, did strike along with employee
Falabella to enforce the Union's demands made upon Corssen that day in
regard to the return of Algerio and Stone.
--- -
RAYCOR CO. 589
ises, and then joined them. Falabella confirms that he left
with Elliott, and that Labriola came out about 10-15
minutes later. Stone arrived later. The employees then
began picketing.
Falabella relates that it was sometime after the picket-
ing had commenced (about 1-2 hours later) that Corssen
Sr. and Rosenberg came out to the picket line. Rosen-
berg said to him and Labriola that, if they did not return
to work, they would be fired. Falabella said that was
okay with him, and recalled that neither Corssen or La-
briola said anything on this occasion. Labriola's testimo-
ny in this area is confusing and not helpful. However,
Respondent essentially confirms Falabella's version. 63
Falabella also recalled that it was a few days later
either late morning or early afternoon that he and La-
briola were on the picket line (with Algerio and Stone in
the area) When Corssen Sr. came up to them. Corssen
Sr. had a short letter in his hand which he read to them
and which they concluded was basically the same thing
as Rosenberg and Corssen had said to them previously.
Falabella (corroborated by Labriola) related that Corssen
read to them, "You have been absent from work without
excuse for 3 days. Your employment with this company
is terminated unless you report for work immediately."
They did not report for work. They were terminated on
Respondent's employment records as of the same day,
and the termination was confirmed by letter of the same
date. The said letter in evidence (addressed individually
to Labriola and Falabella) provided:
On Tuesday, September 6th, management at this
firm notified you to return to work immediately if
you wished to continue your employment here. At
that time you refused to listen to us but walked
away instead. Again, on September 8th, you were
told to immediately return to work as your absences
were unexplained. You were notified on both occa-
sions that failure to return to work immediately
would result in termination of your employment.
This letter is written to confirm that you have
been terminated.
The record reveals that the picketing lasted from 18
days to 3 weeks, ending on or about September 28. By
that time all employees had determined that they had to
s3 Rosenberg related that he and Corssen went out to the picket line,
and that he spoke to Labriola and Falabella on the picket line and asked
them to come back to work, as it appeared to be a foolish move on their
part to walk off the job. Thus, Rosenberg related that he asked them
why they had walked off the job; and that they replied they walked out
in sympathy with Algerio and Stone, and that they felt Algerio and
Stone should not have been fired. Rosenberg asked them if they knew
why Algerio and Stone were fired. They replied yes. Rosenberg then
asked the employees to explain to him why they were fired, but they de-
clined. Rosenberg asked Labriola and Falabella would they tell him what
they knew as he would like to tell them the truth, but they declined to
do so. According to Rosenberg, he told them that he thought there was a
just cause why Algerio and Stone were fired and offered to explain it to
them, but they then walked away. According to Rosenberg, it was then
that he said. "You know, if you don't come back to work you'll have to
be considered that you are fired," or that they would be fired if they did
not come back to work, and the employees responded they did not care
Rosenberg testified convincingly that he was 100 percent sure that La-
briola was already on the picket line and not in the shop when Rosen-
berg arrived at the premises, and he specifically denied he ever told an
employee of Raycor that he was fired
look for work and did so. The strike was then aban-
doned. It was not until October 5 that the Union request-
ed its withdrawal of the petition in Case 29-RC-3927,
notably well after the discharges of Labriola and Fala-
bella and at a time when the same (hereinafter found un-
lawful) remained unremedied.
Analysis, Conclusions, and Findings
Inasmuch as I have found that the discharges of Al-
gerio and Stone which precipitated the strike herein
were not violative of the Act, it follows that the ensuing
stike action by employees Labriola and Falabella was not
unfair labor practice strike activity initially. However, if
I have found that Respondent might take one view of
the above facts and decided that discharge action was
warranted thereon, and lawfully refuse reemployment of
Algerio and Stone, it seems to me that the employees
were equally free (particularly with regard to the ques-
tioned discharge of prominent employee spokesmen)
under the Act to take a different view than Respondent
of the facts as they knew them, and seek to enforce that
view with strike action against Respondent. According-
ly, I conclude and find that the strike of Labriola and
Falabella in support of the Union's demand that their co-
employees Algerio and Stone be returned to employment
was lawful stike action initially economic in nature, and
conduct clearly protected by the Act. Thus, I find that
as of September 6 employee Labriola and Falabella were
initially engaged in protected concerted activity as eco-
nomic strikers. They were thus engaged in protected
concerted activity when on September 6 they were
threatened with termination if they did not forego their
right to strike and return to work, and occupied the
same status on September 8 when they were actually dis-
charged for failing to abandon their lawful strike and
return to work. As employees Labriola and Falabella
were threatened and then fired for continuing to engage
in lawful strike activity which I have found to be pro-
tected concerted activity, it follows, and I find, that the
threat of job loss if they did not abandon the strike was
conduct violative of Section 8(a)(1); and I further find
that their subsequent discharge on September 8 was vio-
lative of Section 8(a)(l) and (3). 1 further find that by
such unlawful conduct of Respondent the strike, at least
as of September 8, was converted into an unfair labor
paractice strike; and that from on and after September 8
employees Labriola and Falabella thus occupied the
status as discharged unfair labor practice strikers until
the strike was abandoned on or about September 28 at
which time they reverted to the status of being unreme-
died 8(a)(l) and (3) discharges. Cf Rental Uniform Serv-
ice, 167 NLRB 190, 196-197 (1967); N.L.R.B. v. Southern
Greyhound Lines. Division of Southern Greyhound Lines.
Inc., 426 F.2d 1299 (5th Cir. 1970). In either event, from
date of discharge they were entitled to an immediate un-
conditional offer of reinstatement to their former or sub-
stantially equivalent positions by Respondent with back-
pay accruing from individual date of discharge until such
reinstatement or offer of reinstatement was effected.
Abilities and Goodwill, Inc., 241 NLRB No. 5 (1979).
Falabella testified, without contradiciton, that after
September 8 Respondent never asked him to come back
RAYCOR CO.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work, nor did Falabella ever ask Respondent to go
back to work. The record reveals that Labriola received
a letter from Respondent a few months after he was dis-
charged, and that he had attended a hearing in regard to
unemployment benefits held on December 13. At that
hearing President Corssen brought up the fact that he
had recently sent Labriola a letter containing an offer of
reinstatement. Labriola thereupon asserted that he was
ready to go back to work. After the meeting was over
Labriola asked Corssen if he should follow Corssen back
to the shop to talk about his job. Corssen replied, "No.
Come back at 5:00." Labriola did so, but found Corssen
was not present. Present were Schmal and Sweet, the
firm's new labor representative and counsel herein. La-
briola asked for his backpay. Sweet responded there
would be no backpay, only the job. Apparently, after
making a phone call, Sweet then informed Labriola that
there was an additional problem; that the only job then
available was that of maintenance and cleanup, washing
cars, at a rate of pay amounting to $20 less a week than
he had been receiving, and which did not involve the
mechanical work that he had been doing. Labriola was
told that he would be considered for a mechanic helper
job in the future when one opened if he performed the
present cleanup job well. Labriola contacted the Region-
al Office and subsequently declined the above job offer
on the basis that the job being offered did not constitute
a valid offer of reinstatement to his former position.64
The record reveals that Corssen Jr., following the
strike, forewent his plans to continue his education at the
college where he had been accepted and planned to
attend in September. Instead, he worked in the back in
the parts room, performing also some mechanical and
cleanup work, but principally running the parts depart-
ment. The record reveals also that on October 12 Re-
spondent hired Melaslav Rezek as a cleaner, and that on
Onctober 31 it hired Dolibar Rezek, Jr., as a class A Me-
chanic. It is observed that Respondent had not replaced
Mechanic Pettinator when he was terminated, but rather
continued with its existing mechanical work force of Me-
chanics Rezek (apparently Sr.) and Gourlay and Me-
chanic Helpers Stone and Labriola. As Labriola was un-
lawfully discharged after Stone was lawfully discharged,
he was entitled to perform existing mechanical work. As
it is obvious there was a continued requirement for me-
chanical work to be done, and since it was Respondent's
burden to establish that it did not include any work that
Labriola was qualified to do, I am fully convinced that
the job offered Labriola in December was not a valid
offer of reinstatement as required to his former or sub-
stantially equivalent positon, releasing subsequently hired
employees if required to do so. There is no question that
the meaintenance and cleanup work continued, and that
N4 Respondent's letter to Labriola is not in evidence. Respondent has
not defended that the offer made was one not timely pursued by La-
briola, and the General Counsel has not contended that Respondent's
offer as contained in the letter did not constitute a valid offer or rein-
statement otherwise. The issue therefore is seen to be whether the above
offer made, under the total circumstances, was an unconditional offer to
reinstate Labriola. As is elucidated infra, I find that it was not I note in
passing that there had been in September a nonviolent but heated con-
frontation between the Unon and management over the Company's reten-
tion of Stone's tools, which the Company released at that time.
Respondent has unlawfully failed to offer reinstatement
to Falabella. In agreement with General Counsel other-
wise, I shall leave other matters respecting backpay to
the compliance stage.
F. The Remedial Bargaining Order Issued
The General Counsel has contended in the alternative
that, even if the discharges of Algerio and Stone under
all the circumstances are determined to be without merit,
the discharges of Labriola and Falabella necessarily had
substantial impact on the remaining employees in this
small bargaining unit. Thus, the General Counsel con-
tends that the threat of discharge and subsequent dis-
charge for engaging is strike action, coupled with other
conduct of Respondent as found herein violative of Sec-
tion 8(a)(l), should be concluded to have been unfair
labor practices of such a flagrant nature that the conduct
of fair election was thereby rendered impossible, and a
remedial bargaining order is now warranted. General
Counsel would argue that the bargaining order should
arise from August II, the date when the unfair labor
practices as found commenced, majority designation
having earlier been obtained on August 9 and union
demand for recognition and bargaining made on August
10. Respondent has contracontended that there was no
flagrant unfair labor practices as all the discharges were
for cause. Respondent contends also that all the 8(a)(1)
violations occurred prior to the filing of a petition, and
that under the Board's existing representation case views
they are deemed to have no effect on the laboratory con-
ditions necessary for the conduct of a fair election. The
short answer to Respondent's latter contention is that I
have found that violations of Section 8(a)(l) and (3) have
occurred after the filing of the petition; and I further
conclude and find that, in their involvement of threat-
ened loss and actual loss of employment tenure, they are
of a serious nature and have a significant and debilitating
effect on the opportunity of conducting a fair election.
This is particularly so in a case such as the one herein
where an initially small unit is so directly and lastingly
affected thereby.
General Counsel's observation that with the unlawful
discharge of Labriola and Falabella half of the then-exist-
ing bargaining unit was directly affected does not miss
the mark by much; indeed, I find not at all. Thus, with
the lawful departure of Pettinato on August 12 and Po-
merantz on August 25 and then Algerio and Stone on
August 30 and 31, the existing unit then consisted of Me-
chanic Helper Labriola, and Cleaner Falabella. Thus
even without reaching any consideration of the eligibility
of the Corssen brothers, the unlawful discharges of em-
ployees Labriola and Falabella are observed to have dis-
sipated one-thired to one-half of the unit. I find the
aforesaid discharges dissipated in fact one-half of the
unit. 65
6b In agreement with the parties, I have found Parts Man Algerio (as
carried on Respondent's books) was included in the appropriate unit.
Unlike Pomerantz, whom I find (as Respondent's records reveal) was
hired full time and later elected to return to school, Michael Corssen was
hired (as revealed by Respondent's records) as summer (seeimingly tem-
porary) help and returned to high school. The degree (if any) to which
Continued
RAYCOR CO. 591
Finally, Respondent attacks the validity of the major-
ity designation of the unit. Remaining contentions not
previously effectively considered herein essentially stem
from Labriola's testimony that he did not read the card,
and that, in signing it, his understanding was it would
show who was there, e.g., an attendance card, and that it
would show who would vote for the Union. The latter
expression would appear ambiguous. It is Respondent's
contention that Labriola's designation of the Union as his
bargaining representative is thus informed, and that it
permeates a further question as to the validity of the
cards of Pettinato and Pomerantz, who did not testify,
presumably that they also may not have read their cards
or similarly understood them. I do not agree for these
reasons. First, I have on several occasions had occasion
to note that Labriola's recollections of statements made
by others was frequently faulty. I am convinced from
weight of the testimony of others at that meeting that it
is so again here. Certainly, none corroborated him that it
was an attendance card. I am further wholly convinced
that in this instance the evidence of what he did before
and after, and what others report of that meeting and
Labriola's conduct, removes any vestige of ambiguity in
his signing the union authorization card and in fact sup-
plies convincing corroboration to his testimony that he
wanted the Union to represent him. The conclusion is
thus warranted that Labriola's designation card be ac-
cepted as further evidencing his desire that the Union act
as his representative."" It seems anticlimactic to observe
that on both August 10 and II the Union owned major-
ity designation even without Labriola's card. 67 I thus
find and conclude that General Counsel's contention that
a remedial bargaining order is warranted herein is meri-
torious, and I shall make provision for it hereinafter.
Michael Corssen thereafter continued working is not clear. Be that as it
may, in any event, the parties by agreement earlier concluded Machael
Corssen was ineligible by virtue of having dissimilar interests with unit
employees by virtue of being the son of Respondent's major stockholder.
I see no reason to make a contrary finding on this record. Initially Cors-
sen Jr., was excluded as saleman. It is clear that, following the strike, he
worked essentially as a parts man running the parts department as did Al-
gerio before him. On this record, however, it would appear that he also
would be ineligible as a son of the major stockholder of Respondent. I so
find, Dunn Brothers. Incorporated, t/a Fisher Stove Works, 235 NLRB 1032
(1978).
a' Thus, Labriola, when asked by Algerio as to his interest in a union,
told Algerio that he would not mind having a union in the shop; he
thereafter attended union meetings, took active part in them, asked ques-
tions about benefits at the first meeting, and signed a card at that meeting
along with all his fellow employees in attendance. He, along with other
employees, thereafter spoke daily at lunch about the Union, and he re-
vealed after that first meeting that he favored the Union and wanted the
Union for it offered benefits. He knew that the Union subsequently made
demand for recognition on his and others' behalf; made no effort to disas-
sociate from the Union; and, finally, was very vocal in urging union
strike action in support of union demands that his co-employees (Algerio
and Stone) be returned to employment, and participated and persevered
in that strike action through threat of and actual discharge. I am thus
wholly convinced Labriola's card should be counted as well as the others
as to which no such infirmity is shown nor, in my judgement, properly
inferable from this record.
.7 There were eight employees in the unit on both August 10 when
the demand was made and on August I when the unfair labor practices
herein are shown to have commenced. Six (Algerio, Falabella, Labriola,
Pettinato, Pomerantz, and Stone) of the eight signed the authorization
cards that evening. (The remaining employees in the unit were Rezek and
Gourlay )
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575; and
Trading Port, Inc., 219 NLRB 298.
CONCLUSIONS OF LAW
1. Raimund Corssen, Co., Inc. d/b/a Raycor Co., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 259, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By Respondent's Accountant and Agent Rosen-
berg's interrogating employees as to what they heard or
knew about the Union, whether they had been ap-
proached by the Union and who was involved in it, and
his later questioning of the shop unit employees as a
group again generally as to what they knew about the
Union, and then individually in the group essentially as
to their individual contact with the Union, Respondent
has thereby unlawfully interrogated its aforesaid employ-
ees in regard to their union interests, sympathies, and ac-
tivities, and as to the union interests, sympathies, and ac-
tivities of other employees in violation of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
4. By Respondent's Accountant and Agent Rosen-
berg's telling employees, in substance and effect, that
with a union in the shop some of the employees would
risk receiving lower classifications and resultingly suffer
reduced wages, Respondent has interfered with, re-
strained, and coerced employees in violation of Section
8(a)(1) and Section 2(6) and (7) of the Act.
5. By Respondent's President Corssen's statements in-
dicating to employees Respondent's willingness to afford
employees an incentive method of payment as an alterna-
tive means of earning more money, Respondent has
thereby offered an implied promise of benefit to its em-
ployees which has interfered with the free exercise of
their Section 7 rights to join a union in violation of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
6. By Respondent's President Corssen's and its Ac-
countant and Agent Rosenberg's threatening striking em-
ployees with job loss if they did not abandon their strike
action and return to work, Respondent has violated Sec-
tion 8(a)(1); and by discharging striking employees Rus-
sell Labriola and Paul Falabella on September 8 because
they engaged in strike activity and refused to return to
work, and by refusing thereafter to reinstate them to
their former or substantially equivalent positions of em-
ployment, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Act.
7. The strike which commenced on September 6 was
in its inception an economic strike, but was converted to
an unfair labor practice strike upon Respondent's dis-
charge of employees Labriola and Falabella on Septem-
ber 8, and remained an unfair labor practice strike in its
duration through approximately September 28.
8. The Union enjoyed majority designated status on
August 9 in a unit of service shop employees herein-
above found appropriate; and on August 10 the Union
requested Respondent to recognize it and to commence
bargaining with it as the duly designated collective-bar-
gaining representative of Respondent's aforesaid service
RAYCOR CO. 591~~~~~~~~~~~~~~~~~~~~
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop employees, which, since August 11, Respondent has
thereafter failed and refused to do. Commencing on
August 11 Respondent has engaged in the commission of
the above serious unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act. By the above conduct
commencing August 11 Respondent has violated Section
8(a)(5) of the Act, and there is clear warrant to issue a
remedial bargaining order herein. 68
9. Except as heretofore found, Respondent has not en-
gaged in any other unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) and Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices in violation of
Section 8(a)(l), (3), and (5) of the Act, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent has unlawfully refused
to bargain collectively with the Union, I shall recom-
mend that it be ordered to bargain collectively with the
Union, upon request, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment for the employees in the appropriate unit
described below. I shall also recommend that any under-
standing that the parties may reach shall be embodied in
a signed agreement.
It is further recommended that Respondent offer Rus-
sell Labriola and Paul Falabella immediate and full rein-
statement to their former positions or, in the event such
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges. I shall also recommend that Respondent make
them whole for any loss of pay they may have suffered
by reason of Respondent's unlawful discrimination
against them by payment to each of them a sum of
money equal to that which each would have earned from
the date of their discharge to the date they are offered
reinstatement, with interest.
Such backpay and interest thereon is to be computed
in accordance with the formula described in F. W. Wool-
worth Company, 90 NLRB 289 (1950), Florida Steel Cor-
poration, 231 NLRB 651 (1977).69
As the unlawful discharges of Labriola and Falabella
are of such a serious nature as to strike at the very heart
of rights intended to be protected by the Act, I shall rec-
ommend the issuance of a broad cease-and-desist Order
requiring Respondent to cease and desist from in any
other manner infringing upon employees' rights. Abilities
and Goodwill, Inc., 241 NLRB No. 5, fn. 14.
68 The unfair labor practices are in nature serious and have affected a
small unit. In view of the size of the appropriate unit herein, I find the
above unfair labor practices "are of such a nature that their coercive ef-
fects cannot be eliminated by the application of traditional remedies with
the result that a fair and reliable election cannot be had"; or, alternative-
ly, the possibility of erasing the effects of the above unfair labor practices
and of insuring a fair election, if present, is slight; and that employees'
sentiment as reflected by their execution of union authorization cards
during the critical period herein would, on balance, be better protected
by a bargaining Order V. L. RB. v Gissel Packing Co.. supra.
"9 See, generally, iss Plumbing & Heating Co., 138 NLRB 716 (1962)
Upon the foregoing findings of fact, conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER7 0
The Respondent, Raimund Corssen, Co., Inc. d/b/a
Raycor Co., Oyster Bay, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union in-
terests, sympathies, and activities, and as to the union in-
terests, sympathies, and activities of other employees in a
manner constituting interference, restraint, or coercion of
employees engaged in the exercise of the rights guaran-
teed them in Section 7 of the Act.
(b) Telling employees that with a union in the shop
some employees risk receiving lower classifications and
resultingly suffering reduced wages.
(c) Promising employees an incentive plan or other
economic benefits in a manner which interferes with the
free exercise of their Section 7 rights to join a union.
(d) Threatening striking employees with job loss if
they do not abandon their strike action and return to
work; and discharging and thereafter refusing to reinstate
striking employees because they refuse to abandon their
strike action and return to work.
(e) Refusing to bargain collectively concerning rates of
pay, wages, hours of employment, and other terms and
conditions of employment with Local 259, United Auto-
mobile, Aerospace and Agricultural Implement Workers
of America, as the exclusive bargaining representative of
its employees in the following appropriate bargaining
unit:
All service shop employees, including all parts de-
partment employees, mechanics, helpers, and clean-
ers employed by Respondent at its location at 243
Pine Hollow Road, Oyster Bay, New York; exclud-
ing all office clerical employees, salesmen, and
guards and supervisors as defined in the Act.
(f) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Russell Labriola and Paul Falabella imme-
diate and full reinstatement to their former positions or,
if such positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for
any loss of pay or other benefits they may have suffered
as a result of their unlawful discharge on September 8
and subsequent nonreinstatement. Such backpay and
other benefits is to be computed in accordance with the
70 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
RAYCOR CO. 593
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Upon request, recognize and bargain collectively in
good faith concerning rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment
with Local 259, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America, as the exclu-
sive bargaining representative of the employees in the
above-described appropriate bargaining unit, and, if an
understanding is reached, embody such understanding in
a signed agreement.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its above service shop in Oyster Bay, New
York, copies of the attached notice marked "Appen-
dix." 7 Copies of said notice, on forms provided by the
I' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Regional Director for Region 27, after being duly signed
by Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 29, 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 dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing all
Order of the National Labor Relations Board."
RAYCOR Co. 93