Raymond Buick, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1968

173 N.L.R.B. 1292 (N.L.R.B. 1968)

1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raymond Buick , Inc., and Local 259, United Auto-
mobile , Aerospace & Agricultural Implement
Workers of America , AFL-CIO , and Amal-
gamated Local Union 355 , Party to the Contract
Amalgamated Local Union 355 , and Local 259,
United Automobile , Aerospace & Agricultural
Implement Workers of America , AFL-CIO and
Raymond Buick , Inc., Party to the Contract
Raymond Buick , Inc., and Michael Anzalone.Cases
29-CA-731, 29-CB-259, and 29-CA-773.
December 17, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On March 11, 1968, Trial Examiner Herzel H.E.
Plaine issued his Decision in the above-entitled pro-
ceeding, finding that the Respondents had engaged in
and were engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that they cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the
Respondents had not engaged in certain other unfair
labor practices. Thereafter, Respondent Raymond
Buick, Inc., Respondent Amalgamated Local Union
355, Charging Party Local 259, United Automobile,
Aerospace & Agricultural Implement Workers of
America, and the General Counsel filed exceptions to
the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds no prejudicial
error was committed The rulings are hereby affirmed.
The Board has considered the Trial Examiner's
Decision, the exceptions, the briefs, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Exam-
iner, only to the extent that they are consistent
herewith.
1. A review of the record leads us to the conclu-
sion that a decision by the Board in this proceeding
should not be based on the testimony of Michael
Anzalone where it is not corroborated by other
credited testimony. The record shows that Anzalone's
testimony at the hearing was, at best, contradictory
and inconsistent, and that he is an unreliable witness.
Apart from Anzalone's performance on the record,
this conclusion is also supported by the record of his
testimony before the New York State Unemployment
Insurance Board which contradicts certain testimony
given at the Board hearing. On this basis, we do not
adopt the Trial Examiner's finding that Tolkow
attempted to induce and assist Anzalone to tailor his
testimony to be given to the Board as that finding is
based in large measure on Anzalone's uncorroborated
testimony.
2. We agree with the Trial Examiner's findings, and
the rationale underlying those findings, of violations
of Section 8(a)(2) by Respondent-Employer and
Section 8(b)(1)(A) and (2) by Respondent-Union,
and no violation of Section 8(a)(5) in Respondent
Employer's refusal to bargain with the Charging Party.
We would reach the same conclusions on another
ground. The record shows that at about 3 p.m. on
September 12, when Union Representative Velez
confronted Service Manager Cifelli and demanded
recognition for the Charging Party,' both unions had
in their possession signed authorization cards from
employees Anzalone, Pharo, and Richardson. Thus,
neither union, at that time, or anytime thereafter,
could show a majority status without reliance on the
cards of employees who had signed for both unions.'
As these cards may not be considered reliable
evidence of the signers' selection of either union as
their exclusive bargaining agent, neither the Charging
Party nor Respondent-Union ever established their
status as majority representatives.
THE REMEDY
The Trial Examiner recommended that Respond-
ent-Union be enjoined from acquiring bargaining
rights with respect to employees of any other
employer by any means other than a Board supervised
election for a period of 5 years. The proposed remedy
is based upon the Trial Examiner's findings of
violations of Section 8(b)(1)(A) and (2) in the instant
case and the Union's past history of similar violations
which he characterized as a persistent "course of
conduct in violation of the principle of employee
self-determination." This history consists of three
Board decisions in which the Union was a respondent
found guilty of violations of Section 8(b)(1)(A) and
(2), and a fourth decision where the Union was not a
respondent but was party to a contract found to have
been procured through unlawful employer assistance.
1 The Trial Examiner found, and we agree , that at this point no 2 Allied Supermarkets, Inc., 169 NLRB No. 135, J W Mortell
contract had been signed between Respondent-Employer and Respond- Company, 168 NLRB No. 80, Bendix- Westinghouse Automotive Air-
ent-Union . Brake Co, 161 NLRB 789,1 Posner inc., 133 NLRB 1573
173 NLRB No. 199
RAYMOND BUICK, INC.
The latest of these cases was adjudicated in 1963 on
events which occurred in 1962.
In addition, the Trial Examiner appears to have
relied partially upon two other more recent cases
where Board orders were entered by consent and were
enforced by decrees of the United States Court of
Appeals for the Second Circuit. The consent decrees
contained non-admission clauses. The Board has held
that such settlements do not establish any proclivity
on the part of a respondent to engage in conduct
violative of the Act.' Accordingly, we do not
consider these latter two cases as part of the Union's
background history.
Under the circumstances of this case, and particu-
larly in view of the length of time that has elapsed
since the last previous Board adjudication of unlawful
conduct, and the number of close factual and legal
questions resolved herein, we do not believe the
proposed remedy is warranted at this time. We do
believe, however, that the Union's past similar con-
duct is not so remote that we can ignore its peculiar
proclivity to be involved in collusive situations. In
order that employees of employers other than the
Company here involved may be secure in their rights
of self-determination, we shall issue a broad order
designed to protect such employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that Raymond Buick, Inc., Bayshore, Long
Island, New York, and Amalgamated Local Union
355, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein modified:
1. Delete paragraph B 1(b) and renumber suc-
ceeding paragraphs accordingly.
2. Delete paragraph B 1(d) and renumber suc-
ceeding paragraphs accordingly.
3. Delete paragraph C of the Recommended Order
and substitute the following:
Paragraph 25 of the complaint, alleging a refusal by
Respondent-Employer, Raymond Buick, to bargain
collectively with UAW Local 259 in violation of
Section 8(a)(5) of the Act, and that part of paragraph
26 of the complaint, alleging thaat Respondent-
Union, by Bernard Tolkow, its President and agent,
offered benefits to employees to induce them to give
certain testimony and directed said employees to give
3 Teamsters, Chauffeurs, Helpers and Taxi Cab Drivers, Local No.
327, 160 NLRB 1919, 1920, Local No. 92, International Association of
Bridge , Structural and Ornamental Ironworkers, 138 NLRB 428, 429
1293
such testimony to Board agents during the investiga-
tion of charges filed by Local 259 in violation of
Section 8(b)(1)(A) and (2) of the Act, are hereby
dismissed.
4 Delete the second indented paragraph of Appen-
dix B.
5. Delete the fifth indented paragraph of Appen-
dix B.
TRIAL EXAMINER'S DECISION
HERZEL H. E. PLAINE, Trial Examiner This is a proceed-
ing under a consolidated amended complaint, issued April 13,
1967, that combined three unfair labor practice cases They
are, CA-731, based on a charge against the Respondent
Employer (Raymond Buick) filed September 19 and amended
November 15, 1966, by the Union Charging Party (UAW Local
259), CB-259, based on a charge against the Respondent
Union (Amalgamated Local 355) filed September 19, 1966,
also by UAW Local 259; and CA-773, based on a charge
against Raymond Buick filed October 27, 1966, by the
individual Charging Party, Michael Anzalone.
The consolidated amended complaint alleged that employer
Raymond Buick engaged in unfair labor practices, that violated
Section 8(a)(1), (2), (3), and (5) of the National Labor
Relations Act (the Act), in rendering illegal assistance to
Amalgamated Local 355 by promising benefits to employees
to sign and to solicit other employees to sign authorization
cards for Amalgamated Local 355, by signing a contract in
September 1966 with Amalgamated Local 355 when that
union did not represent an uncoerced majority of the
employees, by including in the contract a requirement of
membership in the union and deduction of dues as conditions
of employment and by withholding from employees dues and
initiation fees under the requirement, by refusing to recognize
and bargain with the charging union UAW Local 259 in
September 1966 when it represented a majority of the
employees, and by threatening discharge of employees and
discharging employee Michael Anzalone for support of UAW
Local 259 Raymond Buick' s answer was a general denial, plus
an affirmative defense that its employees had designated
Amalgamated Local 355 as their bargaining representative in
September 1966 after rejecting UAW Local 259 in a Board
election 7 months earlier, wherefore Raymond Buick had a
good faith doubt with regard to the alleged majority status of
UAW Local 259.
With respect to Respondent Union, Amalgamated Local
355, the consolidated amended complaint alleged that Local
355 violated Section 8(b)(1)(A) and 8(b)(2) of the Act by
entering into and obtaining enforcement of the above describ-
ed contract with Raymond Buick when the union did not
represent an uncoerced majority of the employees, and by
offering benefits to employees to induce them to give certain
testimony to Board agents during the investigation of the
charges filed by UAW Local 259. The answer of Amalgamated
Local 355 was a general denial.
The cases were heard on May 22-25 and June 19-22,
1967, at Lake Ronkonkoma, Long Island, New York. Counsel
for the General Counsel and for both Respondents have filed
briefs
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record of the case' and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent Employer, Raymond Buick, is a New York
corporation with its place of business in Bayshore, Long
Island, New York, where it is engaged in the business of selling
and servicing American and foreign made new and used
automobiles and related products. During the year prior to
filing of the amended complaint, which period was representa-
tive of annual operations generally, Raymond Buick derived
gross revenues exceeding $500,000 in the conduct of its .
business and purchased and caused to be delivered to its place
of business directly from points outside New York products
valued in excess of $50,000. Respondent Employer is engaged
in commerce within the meaning of Section 2(6) and (7) of the
Act.
Respondent Union, Amalgamated Local 355, and the
Charging Party UAW Local 259 are labor organizations within
the meaning of Section 2(5) of the Act.
It. THE UNFAIR LABOR PRACTICES
A. Background and Issues
1. Regarding representative status of
both Unions and validity of
the Local 355 contract
Raymond Buick, the Respondent Employer, is a Buick and
Opel Kadet dealer with a service or repair shop numbering
between 18 and 20 employees, including the parts department
and body shop people but excluding automobile sales people
and office help.
On February 1, 1966, in a Board conducted election, the
service shop employees rejected by a close margin the bid of
Charging Union UAW Local 259 to become their bargaining
representative. Thereafter, until September 12, 1966, organiz-
ing activities at the service shop by or on behalf of UAW Local
259 appeared to be dormant.
September 12 was the day that Mr. Raymond Milligi,
president and principal stockholder of Respondent Employer,
met by prearrangement with Mr. Bernard Tolkow, business
manager of Respondent Union, Amalgamated Local 355, a
union that represented employees in other automobile dealer
shops in the area , and accorded Local 355 recognition as
bargaining agent of the service shop employees, on a showing
of 11 signed authorization cards for Local 355, and forthwith
entered into a collective bargaining contract with Local 355.
Union Business Manager Tolkow and President Milligi had
known each other and had talked before, indeed had met early
in September before September 12, also by prearrangement,
and discussed unrest in the shop and whether it was time for
unionization. Tolkow asked President Milligi for recognition of
Local 355 then, even though he did not represent any of the
employees, but Milligi indicated he would not talk concretely
until Tolkow had a majority.
1 While there are some few minor errors in transcription of the
testimony , I find no need to order corrections of the transcript other
Following this early September meeting with President
Milligi , Union Business Manager Tolkow obtained signed
authorization cards for Local 355 in a rather unusual set of
circumstances. Tolkow said he persuaded a reluctant body
shop repairman Boris Blinovs to take some cards to recruit
signers . Employee Blinovs turned a large part of the unsigned
cards over to Assistant Service Manager Fred Winter, and then
did no more for a period of time. Employee Blinovs had
discussed with Assistant Service Manager Winter the desirabili-
ty of having either Amalgamated Local 355 or UAW Local 259
in the shop and had "figured out" that Winter "would be for
355" and gave Winter the cards even though he, Blinovs, knew
it was questionable whether Winter was eligible to participate.
Employee Blinovs had specifically discussed Assistant Service
Manager Winter with Union Manager Tolkow who told Blinovs
that only the service manager was ineligible.
Friday afternoon, September 9, Assistant Service Manager
Winter turned the packet of blank cards, except two, over to
employee Michael Anzalone, a mechanic in the service shop.
Employee Anzalone had been enlisted in the previous 2 days
by Union Business Manager Tolkow to help organize the shop
for Local 355 after Anzalone telephoned him for help in
transferring to a job in another shop represented by Local 355,
because Anzalone wasn't making enough money at Raymond
Buick. Employee Anzalone was already a member of both
Local 355 and UAW Local 259, having joined both in
connection with previous jobs. He came to work for Raymond
Buick early in August 1966, and by early September had told
Service Manager John Cifelli that he wasn't making enough
money and that he had called his Local 355 to help place him
in another job. Manager Cifelli sought to persuade him to stay
suggesting that he would make more as he became familiar
with the "product" and that things were going to be better.
Union Business Manager Tolkow told employee Anzalone he
would help him with the job transfer, that he was going to
have someone in the Raymond Buick shop contact him and if
he helped organize and chose to stay he could obtain a good
deal.
Assistant Service Manager Winter was the man who got in
touch with employee Anzalone and gave him the blank cards
while both were road-testing a car, on September 9. Winter
told employee Anzalone that if he succeeded in organizing the
shop he could improve his weekly earnings . Winter told
Anzalone that he, Winter, would take care of organizing the
body shop and, in response to Anzalone's question on dealing
with resistance, that Anzalone could tell the objectors to look
for other jobs.
Employee Anzalone obtained four signatures for Local 355
from among a larger number of mechanics and helpers he
importuned that same afternoon, September 9, telling at least
two of the four to sign if they wanted to keep their jobs.
Employee Blinovs, partially aided by Assistant Service Manager
Winter and without apprising Anzalone, obtained the signa-
tures of the three men of the body shop (himself included),
also on Friday, September 9, and obtained a fourth signature
of the new car make-ready man Lapple on Saturday, Septem-
ber 10. Assistant Service Manager Winter signed one of the jwo
blank cards he had retained from the packet for Anzalone, on
September 9. On Monday morning, September 12, Winter
obtained the signature of the parts department man Moran.
than to note that references to employee "Farrow" should be "Pharo,"
and to employee "Duval " should be "DeVaul," wherever they occur.
RAYMOND BUICK, INC. 1295
Employee Blinovs gave the four signed cards he had to
Assistant Service Manager Winter, also on Monday morning;
and Winter then gave the six signed cards in his possession to
employee Anzalone that morning. Including the 4 he already
had, employee Anzalone thus came into possession of 10
signed cards for Local 355 at some point before noon of
September 12.
By telephone arrangement that morning, employee Anzal-
one met Union Business Manager Tolkow between 12 noon
and 12:40 p.m. and turned over the 10 signed cards plus his
own, signed in Tolkow's presence, making a total of 11
authorizations. There was a discussion about money for
Anzalone between Tolkow and Anzalone, and Tolkow then
went immediately to keep his appointment at President
Milligi 's office, previously arranged before Tolkow had the 11
authorization cards in his possession. By approximately 3 p.m.
that day President Milligi had both recognized Amalgamated
Local 355 as the bargaining agent of his employees and
negotiated a contract with the union.
Meanwhile, having met resistance from adherents of UAW
Local 259 while he was doing business with and for Amalga-
mated's Business Manager Tolkow, employee Anzalone had a
change of heart about what he had done to help organize the
men for Amalgamated Local 355. He got word to UAW Local
259 that the men preferred Local 259 although the employer
was negotiating with Amalgamated Local 355. Employee
Anzalone met with UAW Representative Fred Velez, who
provided him with Local 259 authorization blanks, which
Anzalone distributed at the shop at about the time Union
Business Manger Tolkow and President Milligi were negotiating
the Local 355 contract in the early afternoon of September
12. Employee Anzalone had obtained seven signed cards for
UAW Local 259 (including his own and those of two other
men who had also signed cards for Local 355) when UAW
Representative Velez arrived at the shop at about 3 p.m.
UAW Representative Velez took the signed authorization
cards and with employee Anzalone and two other employees
went to seek President Milligi . They met instead Service
Manager Cifelli who had come out of the contract negotiating
conference to fetch employee Anzalone at Tolkow's request.
Tolkow wanted to show Anzalone, whom he referred to in the
meeting as his shop steward, that he had obtained an increase
in pay arrangements for the men. UAW Representative Velez
would not allow employee Anzalone to join the conference
and demanded recognition for his union . Service Manager
Cifelli reported back to the conference room that Velez was
here seeking recognition for the UAW and would not let
Anzalone attend the conference.
President Milligi sent Service Manager Cifelli back into the
service shop and shortly thereafter followed him. UAW
Representative Velez repeated to Milligi his demand for
recognition but Milligi ordered him off the premises. The
following day, September 13, President Milligi received a
written confirmation of the UAW Local 259 demand for
recognition and bargaining.
Meantime on September 12, at about the time of the
interruption of the negotiating conference by UAW Represen-
tative Velez, the contract between Raymond Buick and
Amalgamated Local 355 was signed and Union Business
Manager Tolkow departed. President Milligi had Service Manag-
er Cifelli call a meeting of the employees for 4 p.m. and at the
meeting Milligi told the employees they now had a union and a
contract and described its terms . The contract included a
union security clause and a union dues and fees checkoff
provision.
Following the shop meeting and announcement of the
contract, employee Blinovs distributed additional authoriza-
tion cards for Amalgamated Local 355 and some of the
employees signed then, others signed later in the month.
Checkoff of union dues and fees was authorized by each card.
Employee Anzalone obtained two additional authorizations
for UAW Local 259 late Monday afternoon, September 12,
following the announcement of the Local 355 contract.
Thereafter, a number of the employees, including Anzalone,
met with UAW Representative Velez and UAW lawyer Richard
Dorn the following Wednesday night, September 14, at a
borrowed office of a lawyer in Bayshore. Lawyer Dorn took
affidavits of three of the men. Velez and Anzalone obtained
two additional authorization cards for Local 259 from
employees Elliott and Sorrentino, who backdated their cards
"September 12" at the suggestion of Velez and Anzalone.
On the chronology thus far, the major issues are
(a) Whether, at the time of recognition of Amalgamated
Local 355, Local 355 represented an uncoerced majority of
the unit of employees, or whether the recognition and
resultant contract was an assisted or collusive arrangement
between the employer and union. In this connection, a
sub-issue, is whether Assistant Service Manager Winter was a
supervisor within the meaning of the Act because of his
relationship to (1) the means of organizing and possible taint
of the authorization cards, and (2) the size of the unit.
(b) If the employer's recognition of, and contract with,
Amalgamated Local 355 was invalid, whether UAW Local 259,
when it made its demand for recognition, represented an
uncoerced majority of the unit of employees entitling Local
259 to recognition and a bargaining order, absent a good faith
doubt on the part of the employer that Local 259 represented
a majority of the unit. A related question is whether UAW
Local 259 was entitled to invoke the theory of a continuing
demand.
(c) If UAW Local 259 did not represent a majority of the
employees, did its demand for recognition nevertheless raise a
real question regarding representation under the Midwest
Piping principle (63 NLRB 1060), with a resultant breach of
neutrality by the employer in contracting with Amalgamated
Loca1355.
2. Regarding claimed interference by
Local 355 with Board investigation
In the period following the announcement of the contract
with Amalgamated Local 355 on September 12, 1966,
employee Anzalone assumed he was, and acted as, shop
steward. When employees Mercer and Blinovs questioned his
authority, the men elected Anzalone shop steward on two
successive occasions, the second time in an election conducted
by an officer of Local 355.
On September 19, UAW Local 259 filed with the Board its
charges against the Respondent Employer and Respondent
Union, and Board investigation followed, with interviews of
the principals and employees commencing in October.
About a week after the charges were filed, Union Business
Manager Tolkow handed employee Anzalone a check for $25
marked "time lost, organization," and said, according to
Anzalone, that there would be more. Tolkow testified the $25
check related to the discussion of money on September 12
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when Anzalone delivered the authorization cards to him. At
that time, said Tolkow, Anzalone asked for $500 before he
would turn over the authorization cards. Tolkow said he
rebuffed the "holdup" and got the cards, and then told
Anzalone he would look into the matter of compensating
Anzalone for time lost in organizing. Allegedly, Tolkow got
authorization from the union officers on September 16 for
$25, though not the required executive board approval until 6
weeks later, on October 27. Conversely, Anzalone testified it
was Tolkow who on September 12 suggested that Anzalone
would do better by staying on at Raymond Buick and that
there was a $400-$500 package for organizing that could be
drawn upon and worked out later. Anzalone further testified
that he did not lose time in organizing and there was no talk
about money for time lost, that when the check was handed
to him Tolkow said the "time lost, organization" inscription
was necessary to cover the check. Anzalone turned the check
over to the Board investigator.
Sometime after Anzalone received the $25 check, he and
Tolkow met again in the latter's car outside the shop, with
Service Manager Cifelli's permission. According to Anzalone,
Tolkow demanded to know Anzalone's proposed testimony to
the Board so that Tolkow could coordinate it with the
testimony of Assistant Service Manager Winter, who was to be
interviewed by a Board investigator. Anzalone said he refused,
even though, he said, Tolkow indicated that it could be worth
$1,000 to him According to Tolkow, it was Anzalone who
solicited Tolkow for $1,000 to testify the way Tolkow
wanted. Both men returned to the shop angry, and Tolkow
went to Service Manager Cifelli and told him, without offering
any explanation, that he, Tolkow was deposing Anzalone as
shop steward and to tell that to President Milligi.
The issue is whether Tolkow, the business manager of
Amalgamated Local 355, interfered with Board process and
the rights of employees by attempting to obtain or alter the
testimony of employee Anzalone with an offer of money.
3. Regarding the discharge of employee Anzalone
President Mrllrgr discharged employee Anzalone at a meeting
of all of the shop employees held on October 19, about a week
after Union Business Manager Tolkow deposed Anzalone as
shop steward. While there was evidence that Anzalone's
making and receiving phone calls on the job had been a minor
source of irritation for Service Manager Cifelli for several
weeks, Anzalone's troubles with management broke out in the
open in the last three days of his employment.
On October 17, President Milligi handed employee Anzalone
a written warning of disciplinary action for taking time off,
with knowledge that Anzalone wanted time off on October 18
allegedly to attend a title closing affecting his new home. On
October 18, Mrllrgr was told by a group of the employees that
they would stand behind employee Anzalone if he were
punished for taking off the time. Milligi told the employees he
had no intention of firing Anzalone, but refused to discuss the
time problem with Anzalone. Anzalone took off the several
hours on October 18
On the morning of October 19, President Milligi handed
employee Anzalone a further written warning regarding a
customer's alleged complaint of poor work and excessive
mileage in road testing his car. Milligi conceded that Anzalone
was a good mechanic and that the warning, notwithstanding its
broader import, was aimed only at the excess mileage in road
testing.
At 1 o'clock that same day, at a meeting of all of the
employees called by President Milligi, Milligi accused Anzalone
of telling some of the employees that Milligi had offered
Anzalone $1,000 to keep UAW Local 259 out of the shop.
Turning to Anzalone in the presence of his fellow employees,
President Milhgi asked Anzalone if he admitted or denied this.
Anzalone replied he did not have to answer right then,
whereupon Milligi told him he was fired.
A strike of the employees commenced the following day,
October 20, and lasted until November 23, 1966, when all of
the strikers except Anzalone were permitted to return to their
jobs.
In justifying the discharge of Anzalone and the refusal to
reinstate him, President Milligi said he had been motivated
solely by the false bribe claim attributed to Anzalone by
another employee, Robert Lapple. Employee Lapple reported
the statement was made by Anzalone on October 13, at a
UAW night meeting of employees who, other than Lapple,
were then UAW supporters and were meeting for interviews
with the Board agent investigating these cases Lapple allegedly
reported this to President Milligi in the late afternoon of
October 18 and affirmed it with a written statement to Milligi
the next morning.
Employee Anzalone testified, and was corroborated, that he
had made statements that Union Business Manager Tolkow had
offered him money but had not made any such statement
about President Milligi. Milligi was apprised by employee
Lapple regarding the nature of the October 13 meeting and
those who attended and accepted as true Lapple's assertion
regarding the alleged libel without making inquiry of anyone
other than by the confrontation of Anzalone in the open
meeting used to effect his discharge.
The issue is whether the employer justifiably discharged
employee Anzalone because Anzalone libeled the employer, or
because of the employer's honest belief that Anzalone had
libeled him, or whether he wrongfully discharged Anzalone
because Anzalone supported UAW Local 259. This is a
combined 8(a)(3) and (1) question in which the determination
of the employer's motive is essential.
Also at issue is a separate section 8(a)(1) question, apart
from any antiunion motive, namely, if employee Anzalone was
engaged in a protected activity of which the employer was
aware, was Anzalone discharged for an alleged libel of his
employer that he had not in fact uttered, so that under Burnup
and Sims (379 U S. 21) not even the employer's honest belief
that the employee had been guilty of misconduct would justify
the discharge
4. Regarding the credibility of the witnesses
Ascertaining the truth in this case has been a most difficult
task. Most of the witnesses and particularly the principal
witnesses-Milligi, Tolkow, Anzalone, Winter, Bhnovs, Cifelli,
Velez, Lapple (the list is not exclusive)-gave not only
conflicting testimony but testimony that individually was
replete with self-contradictions, gaps, revisions of initial
testimony, or substantial variances from statements or testi-
mony given elsewhere prior to this hearing, reflecting sadly on
the credibility of the several witnesses. I have not attempted to
detail these aberrations, but have referred to some where the
RAYMOND BUICK, INC.
reference assisted a determination Regarding witness Anzal-
one, I have noted and taken into account his admission of
conviction for petty larceny involving forgery
However, in the light of my observation of all of the
witnesses and assessment of the whole testimony, I have not
rejected or discredited in toto the testimony of Anzalone or of
any other witness Rather, I have endeavored to follow and
pick out the thread of truth wherever it appeared to show in
the testimony of each of the witnesses as supported by other
evidence or events 2
B Supervisory Status of Asslstan t
Service Manager Winter
Frederick J Winter, according to the testimony of Service
Manager John Cifelli, has been with Raymond Buick 7 years as
assistant service manager of the service or repair shop He had
that title all of the time and has been doing the same job for
the 7 years The job, according to the testimony of Winter and
Crfelli, is to take care of customers as they come to the door,
write up repair orders for the customers, hand out work to the
repair mechanics and explain it to them as handed out, see that
the work is done right, check out the work and road-test cars,
and if something is not right give it back to the mechanic and
explain it to him If a problem becomes "too deep," or if there
is a "consistent" difficulty, Assistant Service Manager Winter
consults Service Manager Cifelli
The men in the shop agreed with this job description and
added or stressed certain facts Employee Al Shea said that
Winter is more or less shop foreman and write-up man, that he
runs the shop in Cifelli's absence, that he is in charge, that he is
"the man to see if you have any problems," and that if Winter
feels it is necessary he will check a job when it is done
Employee Peter Vath noted that, when his work was checked
it was checked principally by Winter, and only in ticklish cases
did Service Manager Cifelli also check the work, roughly in
about 25 percent of the checked cases Cifelli put the amount
of checking he did generally at about 30 percent. Employees
Vath, Shea, Moran, Richardson, and Anzalone agreed that
Winter wrote up the jobs to be done and handed out the work
to the mechanics in the bulk of the cases although Service
Manager Cifelli also did some of this work As President Milligi
pointed out, employee Al Baglione, who concentrated on
helping Manager Cifelli with "internal" work-getting out new
and used cars-also helped writing customer repair orders in
the early morning rush of customers, but, as Milligi further
said, it was Winter who concentrated during the day on this
"external labor" involving the repair jobs for customers who
came through the service shop door
In August 1966, Service Manager Cifelli called a shop
meeting of everyone involved with the service shop, including
the body shop. Because there seemed to be a disciplinary
problem when he was not on hand, such as responding to a
request to drop a job and go to another, Manager Cifelli said he
told the men that in his absence if Winter or Baglione gave a
repair order or had a job to be done the men were to take care
of it as if Cifelh had given them the job Employees Shea,
Vath, Richardson, and Anzalone testified that Manager Cifelli
said, when he is not there Fred Winter is in charge of the
2 There "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 judicial decision than to believe some and not
1297
service shop-as Shea said he put it, "Fred is me." Employees
Shea and Vath did not recall Manager Cifelh making the same
reference to A] Baglione Winter himself, and employees
Richardson and Anzalone, testified that Cifelli mentioned
Baglione as well as Winter, but as Richardson put it, "John
Cifelh said that, that Fred Winter was in charge if he was out,
and that you have the same respect for Fred Winter and A]
Baglione as you had for him "
Employee Vath noted that Service Manager Cifelli also
announced that Assistant Service Manager Winter could recom-
mend to Cifelli firing anyone who was "goofing off." Winter
testified that he had no authority to hire or fire, that he had
authority to recommend both, but he did not recall recom-
mendations that resulted in hiring or firing
President Milligi testified that he had put Service Manager
Cifelh completely in charge of the service shop, responsible to
Milligi Milligi did not participate in the day-to-day supervision
of the shop and, by his own account, spent little or no time in
the shop. When he did it was only to walk through a few times
a day.
Service Manager Cifelli had a large and busy responsibility,
according to the testimony of both President Milligi and
himself He was not only ultimately responsible for the repair
orders and repair of 150 or more cars that came through the
service door each week, but was also responsible to make ready
for delivery the new and used cars sold, and to supervise the
parts department, which supplied the shop as well as sold to
the public The body repair work Cifelli handled directly
himself with the body men. He spent time at the service desk
writing up repair orders, usually in the morning rush, and at
other times when available, he checked and discussed difficult
cases brought to him, and road-tested cars 2-2334 hours per
day; and he was invariably on the telephone each day Also
according, to Assistant Service Manager Winter, Manager Cifelli
usually was away from the shop for his lunch, spent 1 or 2
days every 2 months at a Tarrytown, New York service
managers meeting, and 2 weeks per year on vacation
In short, in addition to the approximately 3 weeks of the
year completely away from the shop, Service Manager Cifelli
was in-and-out of the shop each day that he was there, and was
not available to all of the 18 to 20 men for supervision and
direction, and routinely was not available to even some of the
men several hours of the day He obviously needed and had an
assistant or assistants to keep "things rolling," as Winter said
Cifelli put it
Moreover it was useful, according to President Milligi, that
customers who came to the service desk understand that they
were getting attention from the management. Hence, Winter
had the title assistant service manager, said Milligi, and
occasionally Baglione was called assistant or Cifelli's assistant
service manager Baglrone was probably described most accu-
rately by employee Anzalone as " assistant to the assistant."
President Milligi insisted that both Winter and Baglrone were
really writers or service writers who performed routine
functions of writing up orders and assigning work to the
employees on a pattern laid out for them, though he conceded
that they needed independent judgment in deciding upon the
kind of repair order to write. However, Manager Cifelli, who
ran the shop, found it vital to instruct the mechanics in the
all " Learned Hand , J , in N L R B v Universal Camera Corp., 179 F 2d
749, 754 (C A 2, 1950), reversed on other grounds 340 U S 474
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August meeting that they must take and execute the orders
and assignments of the assistant service manager as though the
service manager had himself given them In addition, Cifelli's
testimony makes clear that there was a variety of abilities and
experience among the mechanics, that would make necessary
discretionary judgments in assignments Moreover, Assistant
Service Manager Winter decided for himself what cases he
thought needed discussion with or check by Service Manager
Cifelh, and independently Winter could judge the work
performance of a mechanic and pass it with or without a check
or return the car to the mechanic for further work if he
thought it was needed. Using employee Vath as an example,
supra, most of his work that was checked ended with the
check by Winter and only a fraction of it was taken for further
check with Cifelli In sum, there were important discretionary
controls over the work assignments, time, and performance of
the mechanics vested in Assistant Service Manager Winter.
President Milligi and Manager Cifelli sought to downgrade
the status of Assistant Service Manager Winter by equating him
to assistant to the assistant Baghone. But Baglrone's work was
different, and paralleled Winter's function and authority in a
much more limited and sporadic way, as in the morning rush
hour when he moved over to assist Winter and Cifelli write up
the orders
Thus, President Milligi indicated, supra, that Baglione's
primary job was assisting Manager Cifelli with the "internal
work," which meant, according to Milligi and employee
Richardson, that Baglione was in charge of getting new and
used cars ready to go out when sold Baglrone primarily tested
the new and used cars, according to employee Moran. As
employee Richardson added, Baglrone was in charge of two
men, the used car mechanic Richardson to whom Baglione
gave repair orders and then checked the cars Richardson
repaired, and the new car make ready man Bobby Lapple (later
the successor to Baglione's job when Baglione left)
Whenever Baglione moved over to assist Service Manager
Cifelli and Assistant Service Manager Winter on the service
desk the cumulative evidence suggests that he did not possess
or exercise their same powers of direction and assignment of
the mechanics The earlier history of the shop also supports this
view of the situation. The Regional Director in his Report On
Objections And Challenged Ballots in the February 1, 1966,
election, a report put into evidence by the Respondent
Employer (as RE-7) "to establish whatever facts were found
in the case" 29-RC-384, concluded that Baglione was not a
supervisor under the Act because, among other things,
"Baglione, as a service writer, wrote up service orders which he
handed to the service manager [Cifelh] or the assistant service
manager [Winter] for assignment to mechanics. Baglione
checked completed jobs for compliance with service specifi-
cations on the repair orders, and where necessary he makes
recommendations to the service manager or his assistant, for
3 The fact that Winter, on the one hand, had limited authority
respecting hiring or firing ( compare cases cited in note 16, infra) does
not detract from the commitment to him by the employer, on the other
hand , of authority to responsibly direct other employees in the interest
of the employer , using his independent judgment in the exercise of this
authority . Section 2 ( II) of the Act defines the criteria for supervisory
status, of which the foregoing are two , in the disjunctive, Jas H
Matthews & Co v NLRB , 354 F 2d 432, 434 (C A 8, 1965), cert
denied 384 U S 1002, a case with interesting parallels to the situation
here There , four " leadmen" were held to be supervisors , with prime
reliance upon their authority to assign work in their departments, and
further work to be done by the mechanics However, Baglione
did not direct the mechanics in the performance of their work
nor assign them work "
Baglione was a relatively new employee at the time when
this report of the Regional Director speaks, February 1, 1966,
and Service Manager Cifelli may have intended to confer
additional authority on Baglione in the shop meeting on
discipline 6 months later in August 1966, covered supra.
However, there is no contention by any of the parties that
Baglione had become a supervisor in September 1966, indeed
they have stipulated to the contrary. The contention of
Respondent Employer is that because Baglrone was not a
supervisor Winter could not be a supervisor, since he had the
same kind of job measured by the title or description "service
writer " The contention assumes a false premise and relies on
labels Winter and Baglione did not occupy equivalent jobs and
Winter was in fact as well as in title or description the assistant
service manager whether or not he was occasionally referred to
as a writer or service writer
The earlier history also adds support to this conclusion and
is indicative that the employer regarded Winter as a supervisor.
In connection with the February 1966 Board election Presi-
dent Milligi, after consultation with his counsel, excluded
Assistant Service Manager Winter from the eligibility list of
voting employees. He included as eligible Baghone and Moran,
the so-called parts "manager," after considering that there
might be challenges of all three men as supervisors. He decided,
President Milligi testified, to put up a fight for the nonsuper-
visory status of Baglione and Moran (and he prevailed as
indicated in the report RE-7), but decided not to make a
similar contention for Winter because, he said, Winter wore a
uniform marked "service manager." Whatever the reasons for
treating him then as a supervisor and not a rank-and-file
employee, it is not without significance that Assistant Service
Manager Winter was doing the same job in September 1966 as
he was in February 1966 and earlier, according to Service
Manager Cifelli, with his authority as a supervisor reconfirmed
if not strengthened by Cifelli's August instructions to the
employees
In my view, Assistant Service Manager Winter was a
supervisor within the meaning of the Act 3
C Size of the Bargaining Unit
General Counsel's Exhibit GC-2 is a list of the 19
employees who comprised the bargaining unit on September
12, 1966.
The parties stipulated to 18 of the names Respondent
Employer and Respondent Union would have added Assistant
Service Manager Fred Winter, but I have determined that he
was a supervisor within the meaning of the Act, heading B,
also upon their representation as supervisors by company officials, their
recognition as supervisors by regular employees, and the unlikelihood
that the factory foreman alone could provide detailed supervision to 37
employees in a variety of tasks without the assistance of the four
supervisors Compare also Sears, Roebuck & Co., 112 NLRB 559, 562
(1955 ), where assistant division managers of a store, that had 40
divisions (each division or a consolidation of 2 with a division
manager), were held to be supervisors under the Act based on the fact
that they were in charge of the divisions when the division managers
were absent The absences occurred 1 full day and 1 morning and 1
evening each week, plus lunch periods and vacation time
RAYMOND BUICK, INC.
supra, and he was not a member of the bargaining unit on
September 12
Respondent Employer also contends that employee
Clarence (Sam) Merritt should be excluded from the unit as of
September 12, because he had indicated on September 9 his
intention to leave and did leave the employment on September
16.
Employee Clarence Merritt did not testify. His job was to
start and wash used cars, 5'h days per week, according to
Service Manager Cifelli. Cifelli gave no indication of how long
Merritt had been an employee. Merritt's nephew Raymond
Merritt, who had also been an employee (lubrication man) of
Raymond Buick in September 1966, testified his uncle
Clarence or Sam worked daily from 8 45 or 9 a m till 4 30
p.m , and had told him he had been with Raymond Buick for 5
years Apparently employee Clarence Merritt also worked
nights at Central Islip State Hospital and had been accustomed
to reporting in at Raymond Buick at about 9 a m in the
mornings. Manager Cifelli and employee Raymond Merritt
agree that Cifelli asked Clarence in early September to start
reporting in at 8 a.m , but that Clarence indicated his night
work did not end until 8 a m. and he could not do it.
Manager Cifelli testified he spoke again to employee
Clarence Merritt on Friday, September 9, about the early start,
and Merritt said he could not do it and was going to leave the
end of the following week Employees Raymond Merritt and
Peter Vath indicate that employee Clarence Merritt understood
he was being discharged-that he had "gotten his notice"-and
Service Manager Cifelli's testimony that he told employee
Clarence Merritt he, Cifelli, would have to look for someone
who could get in at 8 a.m would seem to bear out that
Merritt's ultimate departure was not voluntary.
In any event, employee Clarence Merritt continued to work
through Friday, September 16, according to Service Manager
Cifelh. At the request of employee Anzalone, Clarence Merritt
signed an authorization card for Amalgamated Local 355 on
Friday, September 9, at or after 4 30 p.m., and an authoriza-
tion card for UAW Local 259 on Monday, September 12, at or
after 4.30 p.m , per testimony of employees Raymond Merritt,
James Pharo, James Richardson, and Anzalone.
There was testimony by employee Vath that earlier in the
day on September 12 Clarence Merritt declined to sign a Local
259 card, saying to Anzalone he couldn't see any benefit to
anybody in signing, since he had received his notice. Counsel
for the Respondent Employer concedes (brief pp 6-7) that
employee Clarence Merritt would have been eligible to vote in
a Board election if one were held on September 12, but aruges
that Merritt should be excluded from the unit in this case
because he indicated he no longer had a community of interest
with the other employees when he first declined to sign a
Local 259 card.
Respondent's counsel would have me give more weight to
the employee's alleged preliminary discussion some time
before signing than to the actual signing itself, which overtly
expressed the employee's joinder in obtaining representation
for the unit of employees The suggestion is without merit.
Moreover, the rule that permits voting in an election by an
employee who has given notice of an intention to terminate
employment after the election is grounded on the principle
that eligibility is determined by the actual employment status
1299
as it exists on the eligibility date and on election day. Sioux
City Brewing Company, 85 NLRB 1164, 1 167 ( 1949), Whiting
Corporation , 99 NLRB 117, 122 (1952), Personal Products
Corp, 114 NLRB 959, 961 ( 1955), Otarion Listener Corp,
124 NLRB 880, 881 ( 1959) There would appear to be no
difference in principle when the issue is counting the employee
as part of the unit on the day recognition is requested based
upon an authorization card showing , or the eligibility of the
employee to sign an authorization card on that day Blade-
Tribune Publishing Co , 161 NLRB 1512(1966)
Clarence Merritt's employment , however it was terminated,
continued through September 16, 1966, and he was part of the
bargaining unit comprising the 19 employees listed in exhibit
GC-2, on September 12 and until September 16
D Early Relationship of Employer's
President Milligi and Respondent
Union Business Manager Tolkow
Amalgamated Local 355 operates in Long Island, Manhat-
tan, and part of New Jersey, according to Union Business
Manager Bernard Tolkow. It has about 35 to 40 collective-
bargaining contracts with auto dealers on Long Island, includ-
ing about five in Bayshore, where Raymond Buick is located
Tolkow had been business manager for Amalgamated Local
355 about 14 years, a full-time elected position.
Raymond Milligi, Jr., is the president and principal stock-
holder of Raymond Buick. Milligi testified that he had known
Union Business Manager Tolkow for 4 or 5 years having been
introduced to him at other dealerships and seen him at
restaurants, and always considered "half seriously" that
Tolkow was "trying to organize me "
Indeed, President Milhgi testified, he heard from Union
Business Manager Tolkow two or three times a year, going
back several years, prior to September 12, 1966 Tolkow
sought recognition of his union on these occasions, according
to Milligi, though he gave no indication that he had done any
organizing at the shop or that he purported to represent any of
the men.
Prior to September 12, sometime at the end of August,
Union Business Manager Tolkow called President Milligi and
arranged for a meeting to discuss recognition They met for
lunch at the Peter Pan diner in early September, prior to
September 5, according to President Milligi He met Tolkow
this time, said President Mrllrgi, because he had spent money in
legal fees on the February election, he had gone to the expense
of providing the shop with a welfare program which didn't
seem to be working out, the shops around him were union and
he was having difficulty hiring men "I was . sort of ripe for
an approach," testified Mrllrgi, and it didn't matter "which
union came to me " Tolkow's was the first union to approach
him at that point, he said
At this luncheon meeting, which was just prior to Labor
Day, September 5, Union Business Manager Tolkow again
asked for recognition although he did not purport to represent
a majority of the employees or anyone in the shop. Tolkow
indicated, said Milhgi, only that he had been talking to one
person in the shop, possibly more, that they were unhappy,
and Tolkow felt they would like Local 355. Milligi said he told
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tolkow he would not talk to him until he had a majority in
the shop a
Piesident Milligi testified that he made no deal with Union
Business Manager Tolkow but the events that transpired
suggest the contrary
E Organization of Shop for
Amalgamated Local 355
Accoiding to Union Business Manager Tolkow, he talked on
the telephone to employee Michael Anzalone on Wednesday or
Thuisday, September 7 or 8, 1966 He reached Anzalone on
the telephone located in the working area of the shop All of
Tolkow's telephone talks with Anzalone in addition to this
first talk were on this telephone during shop hours Employee
Anzalone agiees that the first call was completed in the week
ending Fiiday, September 9
Employee Anzalone was an automobile mechanic who had
worked in a number of shops, principally Chevrolet dealers,
before conung to Raymond Buick in early August 1966 He
had worked in unionized shops and was a card holding member
of Amalgamated Local 355 and of UAW Local 259 His last
job was with Walrick Chevrolet, where Amalgamated Local
355 had a collective-bargaining contract Walrick Chevrolet had
fired Anzalone because he refused to punch a timeclock on
every iepair job he did
Service Manager John Cifelli had hired employee Anzalone
on August 3, starting August 5, after checking with Walrick
Chevrolet and feeling assured he would not have their same
problem since Raymond Buick did not use the job timeclock
system, said Cifelli Several weeks later , Cifelli testified,
employee Anzalone was dissatisfied because he was not making
enough money, and told Cifelli he had called his Local 355 to
be placed in another job. Manager Cifelli tried to induce
Anzalone to stay, telling him he would make more money as
he became better acquainted with the shop and the "product "
Employee Anzalone had in fact solicited a job at Roberts
Chevrolet, an Amalgamated Local 355 shop, but apparently
had been told he was having trouble getting union clearance
and had called for help to Union Business Agent Tolkow,
whom he had not yet met As indicated above, Tolkow
returned employee Anzalone' s call on September 7 or 8 and,
according to Tolkow, Anzalone told him of the application at
Roberts Chevrolet and asked for the Union' s recommendation.
Tolkow asked why he wanted to leave Raymond Buick, and
Anzalone said because he wasn't making enough money, that
he had been used to earning $200 per week or more and
thought he could do this at Roberts where the traffic was
heavy. At this point the accounts of the two men vary.
According to employee Anzalone, Business Manager Tolkow
said he would check and call back, and he did in about an hour
saying he had cleared Anzalone at Roberts Chevrolet. He also
said then or in the earlier conversation, according to Anzalone,
that Anzalone might prefer to stay at Raymond Buick because
things were going to happen soon, Tolkow was attempting to
organize there, that someone in the shop would contact
Anzalone and he could strike up a deal, and "if I would do him
a favor he would do me a favor."
4 Union Business Manager Tolkow , although conceding he saw and
met and had conversations with President Milligi a number of times
prior to September 12, 1966, denied or could not remember this
specifically arranged luncheon meeting But Tolkow denied or forgot
some other important happenings in his dealings with President Milhgi
According to Union Business Manager Tolkow, employee
Anzalone called to volunteer to help organize the Raymond
Buick shop for Local 355 saying he had heard Tolkow was
organizing, that he had an application for a job at Roberts
Chevrolet and was due to go there on Monday, September 12,
but was concerned he might get a bad reference from former
employer Walrick Chevrolet, and that if Tolkow would put in a
good word for him and get them to hold his application for
another week, he, Anzalone, would take the time and make
sure the shop was organized for Local 355 Tolkow added that
Anzalone said it was not necessary to give him any authoriza-
tion cards, that they were floating around the shop, he would
pick them up and take over the organization Tolkow said he
agreed and "followed through." Even though he did not know
Anzalone, or whether he was a good or bad mechanic, Tolkow
claimed he called Roberts Chevrolet told them what a good
worker Anzalone was, that he would be an asset to them, and
to hold the job open for a week He then called Anzalone back
to say Roberts would lure him and give hum a week's delay.
The surrounding testimony, indicating no activity among
the employees with respect to Local 355 and no way that
Anzalone could have known that action by Local 355 was
contemplated until he talked to Tolkow, makes Tolkow's
version improbable. Tolkow testified that previous to talking
with Anzalone, he had persuaded employee Boris Blinovs, who
worked in the body shop, to take some authorization cards
This was 1 or 2 weeks prior to his talk with employee
Anzalone Tolkow said, but it was more likely no more than
one week prior because employee Blrnovs fixed the time as
early September Tolkow claimed Blinovs was pointed out to
him in a bar in Bayshore, that Tolkow introduced himself, and
talked union. Tolkow said he gave Blinovs 25 or mote
authorization cards. Blinovs was unenthusiastic and reluctant,
Tolkow testified, and Blinovs testified he didn't want to be
involved, that he took the cards anyway, but did not do
anything with them until "considerably after" he received
them, actually not until Friday, September 9.
Tolkow and Blinovs had only this one meeting and
conversation prior to September 12, according to both of
them However, employee Blinovs, by his own testimony, had
had discussions concerning Amalgamated Local 355 with
Assistant Service Manager Winter both before ("goes back to
August or September" he said) and after he received the cards
from Tolkow. Likewise , Assistant Service Manager Winter
agrees that he and employee Blinovs had such talks before he
received blank cards from Blmovs on Friday, September 9.
Winter and Blinovs talked about the union being better for the
shop and providing a better welfare program. Preliminarily
there was mention between the two of both UAW Local 259
and Amalgamated Local 355, according to employee Blinovs,
but, he testified, when Assistant Service Manager Winter
"talked the way he talked," "I figured he was for 355."
In this connection, employee Blinovs testified (and Union
Business Manager Tolkow confirmed) that in his one meeting
with Tolkow, they discussed Assistant Service Manager Winter.
Blmovs said he raised the question of Winter's eligibility to join
the union since he had not voted in the February Board
which do not rest wholly on the contrary testimony of Milligi, as
appears hereinafter These contradictions coupled with my assessment
of Tolkow's entire testimony and demeanor persuade me that Tolkow
did not tell the whole truth concerning his relationship with President
Milligi
RAYMOND BUICK, INC.
election, and Tolkow replied this didn't mean anything, they
were interested in organizing everybody, and Blinovs could
give cards to anybody except Service Manager Cifelli.
Employee Blmovs testified that, on Friday, September 9, he
gave Assistant Service Manager Winter half, about 18 to 20, of
the blank authorization cards that he had in his possession.
Assistant Service Manager Winter also testified that he received
about 18 blank cards from employee Blrnovs that Friday
morning, September 9, and both claim that Blrnovs told Winter
to give the cards to employee Anzalone, which Winter did that
afternoon. But employee Blinovs did not know about
Anzalone's involvement and arrangement with Union Business
Manager Tolkow, because Tolkow and Blinovs had not talked
since their first meeting, allegedly in early September, whereas
employee Anzalone first talked to Union Business Manager
Tolkow thereafter on September 7 or 8, 1 day, or 2 days at the
most, prior to the distribution of any cards.
To explain this gap, employee Blinovs made the incredible
claim that he knew that employee Anzalone was involved
because 3 or 4 days before Friday, September 9 (which would
have been at a time before Anzalone talked to Tolkow),
Anzalone allegedly stopped him at the parts counter to tell
him that he, Anzalone, was organizing the shop for Local 355
and asked whether Blrnovs wanted to sign a card or had a
signed membership card, he wasn't sure which and he didn't
answer Anzalone. Blinovs first testified that at that point in
time he did not have any blank authorization cards, but
changed his answer to say he had the cards but refrained from
telling Anzalone that he had them or was going to spread
them. Rather he waited several days until Friday, September 9,
and then told Assistant Service Manager Winter to give
employee Anzalone the cards to distribute. Why9, he was
asked, and he replied, "Again, that's what I wasn't sure. I just
didn't want to go to Mr. Anzalone. I thought that Mr. Winter
be better off if he gives cards to Mr. Anzalone."
The exaggeration of the role of the reluctant Mr Blinovs,
ascribed to Blrnovs at the hearing by the Respondents, and the
predominance of the role of management, through the agency
of Assistant Service Manager Winter, begins to show at this
point in the actual happenings. The testimony of all of the
employee witnesses on the subject of shop activity for Local
355, confirmed by the Winter-Blinovs testimony, makes clear
that there was no activity among the employees for Local 355,
or even discussions of Local 355 except between Winters and
Blrnovs, before Friday, September 9,5 and when the organiza-
tional campaign unfolded on September 9, it can be under-
stood only in the light of the liaison established between
President Milligi and Union Business Manager Tolkow, despite
their denials and the denials of Manager Cifelli and Assistant
Manager Winter that there was communication among them on
the subject 6
Employee Anzalone testified that he came forward on the
morning of February 9 and told Service Manager Cifellr that
someone was supposed to contact him (Anzalone) concerning
Local 355 and asked did Cifelli know what was going on.
5 There was , however , discussion and expression of sentiment among
the line mechanics for UAW Local 259 before and after September 9, as
appears infra
6 It is also clear that there were no Local 355 cards " floating" around
the shop before September 9, as Tolkow suggested Anzalone said, and
that , except for Blmovs , no rank-and -file employee including Anzalone
had any Local 355 cards before September 9
1301
Because he had already indicated he was going to leave and had
had the simultaneous urgings by both Service Manager Cifelli
and Union Business Manager Tolkow to stay on because things
would improve, employee Anzalone assumed, he testified, that
Cifelli was the one who was supposed to hand him the cards.
Service Manager Cifelli claimed ignorance, but some hours later
after lunchtime, Assistant Service Manager Winter asked
employee Anzalone to road test with him a car upon which
Anzalone had worked. According to Winter, he drove and
stopped at the side of the road and handed employee Anzalone
a packet of blank authorization cards for Amalgamated Local
355. Winter testified that employee Blmovs had given him the
packet of cards earlier that day, in the area of the service desk,
asking him to pass them to employee Anzalone According to
Assistant Service Manager Winter, he didn't ask Blinovs why
give them to Anzalone because, said Winter, we had discussed
Local 355 before and "I wasn't just going to take them cold
and hand them to him. I must have known what was going
on."
Assistant Service Manager Winter testified that when he
handed the packet of blank authorization cards to employee
Anzalone he, Winter, said only "you know what this is all
about," that Anzalone said nothing, and that nothing was said
between them on the drive back to the shop. I find incredible
the alleged absence of any conversation on this occasion
between the fast-talking Mr. Winter and the loquacious Mr.
Anzalone, particularly in view of the immediately subsequent
occurring organizational events in which each participated
along lines that fit employee Anzalone's description of the
conversation between them.
According to employee Anzalone, Assistant Manager Winter
said, while they were in the car, that he was not the man who
was supposed to contact Anzalone, that Anzalone should take
the cards and sign up the men in the shop at anytime he saw fit
and he would be unhampered, but not bother with the body
shop or with employees Al Shea or Walter Sorrentino (both
line mechanics). Winter said he would take care of the body
shop himself and he knew Sorrentino and Shea would argue so
he didn't want them involved till the end. Anzalone said to
Winter that quite a few of the fellows are not going to go for
the cards and if they balk what should he do. Winter replied, if
they don't want to sign they will look for another job.
Anzalone asked, do you want me to tell them this, and Winter
answered, if you have to you have to. According to Anzalone,
Winter further told him if he got the cards signed he would be
the number one man in the shop-and-could earn his $200 a
week.' This was the amount that employee Anzalone had told
Union Business Manager Tolkow and Service Manager Cifellr he
had been used to making elsewhere and needed for a living
(note Tolkow's testimony supra). Anzalone's earnings had not
exceeded $153 in any week in his then 5 weeks with Raymond
Buick, and his average per week was considerably lower,
GC-31.
Winter and Anzalone returned to the shop in the car they
were supposedly testing, and in the coffee break that followed
7 The testimony of several witnesses including Service Manager Cifelh
was that the mechanics were on piecework , by which they earned, at
that time, 40 percent of the labor charge to the customer with a
minimum weekly guarantee of $100 Consequently , the earnings of the
mechanics varied, and the kind of work assigned to a man had a bearing
on his earnings.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shortly on this afternoon of September 9, and at quitting time,
Anzalone testified, he spoke to approximately 10 men about
signing cards for Amalgamated Local 355. Most of these men
objected to signing Some, like Al Shea, Peter Vath, Manuel
Marquez, and Walter Sorrentino, expressed a preference for
UAW Local 259. Employee John De Vaul, who testified on the
subject, told Anzalone he would not sign for Local 355 until
he found out that the rest were signing, and did not sign when
he ascertained that employees Shea, Vath, and Marquez
preferred UAW Local 259.
Nevertheless, employee Anzalone obtained four signed cards
for Local 355 on Respondent Employer's prerruses from
employees James Richardson, James Pharo, Clarence (Sam)
Merritt, and Raymond Merritt at the end of the working day,
about 4 30 p.m According to employee Richardson, he told
Anzalone he didn't want a union, whereupon Anzalone said if
Richardson didn't sign he would have to find another job, and
Richardson signed card GC-23. Employee Pharo testified he
signed his card for Local 355 on September 9, with employees
Ray Merritt and Sam (or Clarence) Merritt present, although it
(GC-8) is dated September 12. Anzalone told him, Pharo said,
that the union was coming in and he should sign if he wanted
to keep his job, and so he signed Employee Raymond Merritt
testified he signed the card for Local 355, RE-4, on
September 9 A stipulation of counsel indicates that in his
affidavit to the Board of October 13, 1966, employee
Raymond Merritt said that Mike Anzalone told him to sign but
did not tell him he would lose his job if he did net sign. A
further stipulation of counsel, respecting employee Clarence
(Sam) Merritt who did not testify, indicates that on September
9 Clarence Merritt signed and delivered a card for Local 355 to
employee Anzalone who later turned it over to Union Business
Manager Tolkow, but that the card is now missing.
Employee Anzalone testified, as the combined testimony of
employees Pharo and Richardson indicated, that he told them
and the two Merritts to sign or look for other jobs. He further
testified, he did not tell this to everyone he asked to sign for
Local 355 (and employees De Vaul and Vath testified they
were not threatened with loss of their jobs), nor did he tell any
of his fellows at that time that he was told he could say this,
nor did he tell them from whom he had obtained the blank
authorization cards. According to employee Pharo, when he
asked employee Anzalone where he got his information
Anzalone replied only "up front" without elaboration.
Meantime, Assistant Service Manager Winter proceeded in
the organizing as he told employee Anzalone in the car he
would. On his return to the shop, Winter took one of the blank
cards he had retained to employee Charles E. (Ed) Moran, the
parts man, at the parts department, asking him to sign Moran
was busy at the time and laid the card to the side, according to
Winter, and on Monday, September 12, brought it signed to
Winter at the service desk, GC-12. Employee Moran's testi-
mony was in accord.
Assistant Service Manager Winter also testified that on
Friday afternoon, September 9, he spoke to (assistant to the
assistant), Al Baglione about signing a card for Local 355.
8 Baghone confirmed that Anzalone made such a try but that he,
Baghone , was busy and didn't have time for the card then, that he may
have said (as Anzalone testified ) that he wanted to see Manager John
Cifelh before he signed , or he may have said he wanted to see the men
in the shop before he signed
91t is strange that the proffered explanation for Assistant Service
Manager Winter dealing and continuing to deal with employee Anzalone
Baglione signed a card, RU-8, on September 12, dating it
himself, according to his own testimony, and gave the card to
Assistant Service Manager Winter. There was a question,
however, raised by the testimony of Union Business Manager
Tolkow, as to whether Baglione signed and returned the card
early enough in the day for it to have been among those turned
over by Assistant Service Manager Winter to employee
Anzalone, and in turn delivered by Anzalone to Tolkow at
their noontime meeting Tolkow claimed he had Baglione's
card among the batch of signed cards which he obtained from
Anzalone and shortly thereafter presented to President Milligi,
but the weight of the evidence would appear to establish that
Anzalone did not receive and turn over Baghone's card to
Tolkow. Baghone testified he signed the card in the afternoon,
Winter did not recall that it was among the cards he handed to
Anzalone in the morning (though he did identify by name the
six cards that he did hand over), President Milligi could not
remember by name the cards Tolkow showed him, Blinovs
disclaimed knowledge of the signed card, and Anzalone
claimed that he tried unsuccessfully to get the signed card
from Baglrone before noon at the service desk in Winter's
presence. 8
Winter himself signed one of the cards he retained, RU-9,
on Friday afternoon, September 9, after his meeting with
Anzalone but not in employee Bhnovs' presence, Winter said.
Employee Bhnovs did not inquire of Winter whether he had
given the blank cards to employee Anzalone or anyone else,
according to Blinovs' testimony. On Friday afternoon, Septem-
ber 9, about 4 or 4 30 p.m., Blinovs said he obtained the
signature to card RU-12 of employee Ray Mercer, who
worked with him in the body shop. Mercer did not testify, but
Bhnovs testified that Mercer had been present at one of the
Winter-Blinovs discussions of Amalgamated Local 355.
Blinovs said he signed a card himself, RU-10, September 9,
obtained the signature of the third body shop man, William
Maas , to card RU-11, also on September 9, and the card of
Robert (Bobby) Lapple, the new car make ready man, card
RU-7, on Saturday, September 10, at Lapple's home.
Employee Blinovs testified he kept the four signed cards
over the weekend and was ready to give them to employee
Anzalone but did not. Instead, said Blinovs, on Monday
morning, September 12, at 10 o'clock, he gave the signed cards
to Assistant Service Manager Winter asking him to give them to
Anzalone because, testified Blinovs, he did not trust Anzalone
(with no explanation of the basis for this distrust), further he
figured Winter knew Anzalone better, and to "be truthful with
you, I didn't want to be involved at all in this business."
Likewise, Assistant Service Manager Winter testified that
employee Blinovs gave him signed cards from the body shop
on Monday morning, September 12, bringing them to him at
the service desk. Blinovs asked him, testified Winter, to give
the cards to Anzalone because he didn't know Anzalone "that
well" and didn't trust him.9
Assistant Service Manager Winter testified that he gave the
signed cards, which he had acquired directly or through help of
employee Blinovs, to employee Anzalone later that morning,
rests merely upon such requests from employee Blinovs, who not only
did not know of Anzalone's arrangement or liaison with the union
representative , but also professed to Winter, in making the requests, that
he did not trust Anzalone
RAYMOND BUICK, INC.
Monday, September 12, before lunch, at the service desk area.
As identified, they were the six cards of employees Blinovs,
Lapple, Maas, Mercer , Moran, and Assistant Service Manager
Winter. 10
About 10 a.m. the same morning , September 12, Business
Manager Tolkow and employee Anzalone talked on the phone
and arranged to meet about noontime for delivery of the cards
to Tolkow in front of a "Friendly Frost" appliance store, a
short drive from the shop.l 1
Having made this arrangement to meet Anzalone, Union
Business Manager Tolkow immediately called President Milligi,
and though he did not have any cards in hand Tolkow told
Milligi he had a majority of the shop and wanted to meet and
negotiate a contract. They agreed to meet at noon in Milligi's
office.
Union Business Manager Tolkow and employee Anzalone
met in front of the Friendly Frost store sometime in the noon
hour of September 12.12 They sat in Tolkow's car and
transacted business that according to Tolkow lasted between
10 and 15 minutes, covering transfer of the authorization cards
to Tolkow, discussion of some of the contract objectives of the
men, particularly increase in the split of the labor percentage
charge, a suggestion that Anzalone stay on at Raymond Buick
at least until organization was complete, and money for
Anzalone (discussed infra under heading I). Tolkow asked for
and Anzalone signed an authorization card in the car for
himself, RU-6, although it is predated September 9 He did
not tell Tolkow that he had changed his mind about organizing
for Local 355 or that he had agreed with UAW Representative
Velez to organize for Local 259
Conclusion Respecting Majority. Employee Anzalone testi-
fied he gave Union Business Manager Tolkow nine signed cards
for Local 355, including his own '13 whereas Tolkow testified
he received twelve cards. 14 Crediting, as I do, the previously
noted testimony of Assistant Service Manager Winter that
Anzalone also received from Winter cards signed by employees
Lapple and Moran, I find that the actual number of cards
turned over by Anzalone to Tolkow was 11. If Tolkow had
10 Winter testified he gave all the signed cards he had to employee
Anzalone, he thought there were seven or eight of them, but could only
identify the above six Employee Baglione's card was not in this group
and came to Winter later in the day, as the evidence , above, shows
11 There was a conflict in the testimony as to how the meeting was
arranged and when it took place Tolkow claimed that Anzalone called
him to say he had 12 signed cards, Tolkow offered to come to the shop
at once to get them , Anzalone said he had them at home , they agreed
Anzalone would drive home at noon , get the cards and meet Tolkow at
12 05 p in , and they met from 12 05 to about 12 20 p in Anzalone
claimed that Tolkow called him, asked how many signed cards did he
have and give them to "the guy" who gave them to him in the first
place Anzalone replied, he said , that he had the cards at home (which
he also said at the hearing was not true ) and couldn 't do this , but would
deliver them himself to Tolkow at 12. 30 p.m at the place they then
agreed upon , and that they met at 12 40 p.m in front of the Friendly
Frost store It is clear from the testimony of both that Tolkow was
anxious to get the cards at once and that Anzalone was stalling for a
later personal meeting Anzalone testified he was stalling not to meet
Tolkow but for time, because as a result of his Friday experience in
organizing for Amalgamated Local 355 he had learned that most of the
men he talked to wanted UAW Local 259, that his hunger to earn $200
per week had led him to cross the wishes of his fellows , that he could
not stay and work with them unless he tried to get Local 259 for them,
and he described the steps in that direction instituted that morning,
discussed infra under heading G. Respondent suggested that Anzalone
wanted to meet Tolkow to "hit him up" for money , as Tolkow claimed
Anzalone did , also discussed infra under heading I
1303
employee Baglione's card, the alleged 12th card, as he
indicated he did when he met with President Milligi later in the
day, the testimony reviewed above established that he could
not have received it from employee Anzalone, but had it from
Winter directly, or indirectly through another than Anzalone,
probably after recognition was accorded Amalgamated Local
355 by President Milligi. In addition to employee Baglione,
there were others who signed cards for Local 355 in the
afternoon of September 12, particularly after President Milligi
announced the signing of the contract, such as employees De
Vaul, Marquez (GC-15), Shea_ (GC-20),_ and Vath (GC-24),
and still others who signed later in the month, such as
Sorrentino (GC-19, September 21), Radico (GC-29, Sep-
tember 23), and Elliott (GC-12, undated but testified he
signed end of September).
Since Assistant Service Manager Winter was a supervisor
within the meaning of the Act, his card, of the 11 cards
received by Union Business Manager Tolkow on September 12
was of no value as an employee authorization. Of the
remaining 10 cards, the evidence above clearly established that
the signing of 4 of them was directly procured or influenced
by Supervisor Winter. These were the cards of employees
Moran, Blinovs, Mercer, and Anzalone, and because of the
supervisor's assistance the cards were invalid, Insular Chemical
Corporation, 128 NLRB 93, 98 (1960); A.TL Warehouse,
Inc., 169 NLRB No. 75 (1968),15 regardless of whether the
supervisor acted with authority or knowledge of the employer,
International Assn of Machinists v. N.L R B., 311 U.S. 72,
79-80 (1940), H. J. Heinz Company v. N.L R.B., 311 U S.
514, 520-521 (1941); N.L.R.B v. Link-Belt Co, 311 U.S
584,599(1941 ).16
I conclude, that on September 12, of the 11 cards Union
Business Manager Tolkow received from employee, Anzalone
(and later that day turned over to President Milligi) only 6
were valid authorization cards, and Amalgamated Local 355
was 4 short of an uncoerced majority of the unit of 19
employees.
12 Tolkow said it was at 12 . 05 p.m Anzalone , who testified that he
met UAW Representative Fred Velez across the street from the shop at
12 noon, said he met Tolkow at about 12 40 p.m
13 The nine comprised five that Anzalone had produced directly,
namely, Pharo , Richardson , Clarence (Sam) Merritt, Raymond Merritt,
and Anzalone himself , plus four from Assistant Service Manager Winter,
namely , Winter, Blmovs, Maas , and Mercer
14 Tolkow claimed three more in addition to the nine listed by
Anzalone namely , the cards of Lapple , Moran , and Baglione
15 General Counsel suggests that even the remaining six cards were
indirectly tainted by the influence of supervisor Winter It is true that
Winter was responsible for the distribution and collection of most of the
cards However , in the case of the four cards obtained by employee
Anzalone from employees Pharo , Richardson and the two Merritts, the
testimony established that these employees were not told and did not
then know that Anzalone had received the blank cards from Winter and
was acting on his behalf Also, those who were told by Anzalone they
would lose their jobs if they did not sign were not told that Winter or
anyone else in management had said or authorized saying this. In the
case of the two remaining cards, procured by employee Blinovs from
employees Maas and Lapple, there is no evidence that these two
employees took part in discussions with Winter favoring Local 355 (as
did employees Blinovs and Mercer before they signed) or knew that
Blmovs was acting on behalf of Winter
16 In the Machinists and Link-Belt cases cited , the supervisory
interference , upon which rested the Section 8(a)(2) violations of the
employers , were "the activities of supervisory employees even
though they did not have the power to hire or fire " 311 U.S. at 599
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Recognition ofAmalgamated Local 355
and Negotiation of Contract
After his meeting in the noon hour with employee
Anzalone, Union Business Manager Tolkow went to the shop
to keep his appointment with President Millrgr Tolkow was
late, testified President Milligi, arriving before 12.30 p.m.
although he was going to be there at 12 noon. Tolkow said he
arrived betwen 12 15 and 12.30, about 12 20 p.m.
Tolkow came in saying "I finally have you" and, after 4 or
5 minutes in an exchange of pleasantries, President Millrgi
asked to see the authorization cards and spent another 5 or 10
minutes in examining them, according to Union Business
Manager Tolkow. Millrgr testified, he counted 10 or 11 cards,
looking at and recognizing the names but not checking the
signatures or dates, and when Tolkow said "I think I have got
you," Milhgi replied "I suppose you do " Milligi said he
thought there were 12 cards and that Tolkow left a duplicate
set with him (the cards are of a type that are completed
originally in duplicate) Milligi added that he now has about 22
or 23 signed cards, some signed later but did not have a
recollection of the names on the cards Tolkow showed him on
September 12 Tolkow's testimony indicated that he had only
the cards he received from employee Anzalone. Tolkow
testified he had received twelve cards but the evidence
established there were 11, 5 of which were invalid, see heading
E, supra.
Tolkow then suggested that they sit down and negotiate a
contract. After 5 or 10 minutes of general talk on the subject,
Tolkow got out his pretyped or preprinted form contract and
the two men went over it paragraph-by-paragraph making
changes by strike-out and write-in.
As developed, the contract, RU-4, comprised nine marked-
up pages and a handwritten appendix (later replaced by a
typed page 10) embracing 19 articles and the appendix that
dealt with minimum wages for the several categories of
employees. Tolkow contended at the hearing that many of the
articles of the contract needed little discussion, such as the
changes in the holidays article, which he said took about 5 to
10 minutes. Others took longer, the employer's contribution
to the welfare fund requiring disucssion of a half hour and the
"(a)" paragraph of the minimum wage appendix requiring
more than a half hour discussion. In any event, using 12:20
p.m as the starting point of their meeting, Tolkow testified
that the contract was signed 2 to 2ih hours later. He was not
sure, however, whether this was before or after 3 p.m.
President Milligi testified the contract was signed at 2:30
p in. He said in the negotiation Tolkow asked for a 50-50
percentage division of labor charges between the company and
line mechanics (they were then dividing 60-40), for the
guarantee provided in the UAW contract, and for substantially
what other shops had in the Bay Shore area. The percentage
increase was the biggest problem for Milligi who preferred he
said a gradual rather than an immediate employee increase to
50-50. Milligi called Service Manager Cifellr into the meeting
to provide information and advice, after the discussion of the
subject had run about 20 minutes, according to Tolkow
Service Manager Cifelli came into the discussion and favored
the 50-50 percentage division and increased salary minimums,
according to Milligi and Cifelli, as a means of helping to hold
and recruit good men. This advice persuaded Milligi, and the
subject was the last of the terms agreed upon, according to
Tolkow. All three participants agreed that Cifelli was present
about 15 to 20 minutes. Cifellr said he stayed through the
signing of the contract near 2.30 p.m., but Tolkow said he was
not sure Cifelli was present at the signing because after they
had agreed and were writing, he, Tolkow, said he would like to
get employee Anzalone up and tell him the results of the
contract and of the provision in which Anzalone was most
interested, the increase to 50 percent in the labor percentage
division. President Milligi agreed that this was said, and Cifelli
went down to the shop immediately to fetch employee
Anzalone. While Cifelli was gone, according to Milligi, Tolkow
told him Anzalone had worked in another shop and was now
with Raymond Buick, that Anzalone had had something to do
with organizing the shop and that "he owed him some-he felt
that he wanted something to do with him." Millrgr also
testified that Tolkow may have mentioned Anzalone as shop
steward r 7 Milligi said he knew Anzalone as the "guy with the
beard" from a prior discussion of him with Cifellr.
Within a few minutes after leaving the negotiating meeting,
Service Manager Cifelli returned without bringing back em-
ployee Anzalone. Addressing both Tolkow and Milligi, Cifelli
told them, he testified, that a Fred Velez of the UAW was
downstairs in the shop and when Cifelli told employee
Anzalone he wanted to talk to him, Velez allegedly intervened
and said "You can't talk to him or anybody else."
UAW Representative Velez was in the shop, with a batch of
UAW Local 259 signed authorization cards obtained for him
that day by Anzalone, and with a delegation of three
employees (Anzalone, Shea, and Vath) whom Velez had
assembled to seek out President Millrgi.
The group had been stopped by Milligi's secretary and, when
they saw Service Manager Cifelli, Velez made a demand for
recognition of Local 259 upon Cifellr Cifelli acknowledged
that the group with Velez as spokesman made the demand for
recognition for Local 259 and that he told Velez "I don't
recognize you," but claimed the incident occurred after he
emerged from the Tolkow-Milligi meeting a second time.
However, there was no support for his claim in any testimony
of the other participants to this demand, who testified to only
one encounter with Cifelli, and I credit the account that UAW
Representative Velez made his oral demand before Service
Manager Cifelli returned to the Tolkow-Millrgi meeting.
In the meeting, when Service Manager Cifelli returned and
reported concerning UAW Representative Velez and employee
Anzalone, there was a discussion of "what in .... hell was Mr.
Velez doing downstairs," as President Milligi put it. President
Milligi said he was surprised because he did not know that
Velez or anybody was organizing for Local 259, but that
Tolkow was not surprised and commented among other things
17 This was, no doubt, in mind when article V of the contract was only a little more than 1 month . It is also noteworthy that Tolkow sent
marked at this session to eliminate the requirement that a shop steward for Anzalone and not employee Blinovs , Tolkow's alleged agent in the
must have been on the payroll 3 months to be eligible for the office, organizing of the shop . Blinovs had 6 years' service with Raymond
RU-4, pp 2-3. At that time, employee Anzalone was on the payroll Buick.
RAYMOND BUICK, INC.
on "that little s.o.b."18 The discussion ran about 2 to, 4
minutes, according to Milligi (5 minutes said Cifelli) and was
interrupted by a call from Milligi's secretary that UAW
Representative Velez was demanding to see him Milligi said he
sent Cifelh down to his desk and talked further to Tolkow
briefly. Tolkow then said, according to Milligi, there was no
point in his "hanging around" further and left (through the
showroom, said Tolkow) either when or after Milligi went
down to the shop to confront UAW Representative Velez.
Cifelh thought Milligi came into the shop 5 or 10 minutes after
Cifelli's return, and Milligi fixed the time at about 20 minutes
before 3 p in Velez and Anzalone fixed the time as after 3
p.m. since they had had a prearrangement to meet at the shop
at the 3 p.m coffeebreak
The combined testimony and sequence of events suggest
that the contract was not complete for signing and was not
signed when Service Manager Cifelli first left the conference
room to fetch employee Anzalone, but was signed shortly
thereafter with Cifelli present, when he returned with word
that UAW Representative Velez was on the premises demand-
ing recognition for Local 259 and preventing Anzalone from
attending the conference.
G. Organization and Demand for Recognition
for UAW Local 259
Employee Anzalone and UAW Representative Velez had
already met earlier that day, September 12, at noon, according
to their testimony, at a hotdog stand across the street from
the shop, as a result of Anzalone's call in the morning to UAW
Local 259's President Meyers.
According to Velez, Anzalone informed him that the
employees wanted to join UAW Local 259 but had a problem
because the employer was negotiating with Amalgamated
Local 355 whom the employees did not want. Velez said he
informed Anzalone the employees had a right to join any
union of their choosing and gave him authorization cards to be
signed. They agreed Velez would come to the shop at the 3
p.m. coffeebreak and that Velez would represent the men if a
majority had signed, according to Anzalone
This first meeting with UAW Representative Velez took
about 15 to 20 minutes according to both men, and Anzalone
returned to the shop at 12.20 p in He then kept his
appointment with Union Business Manager Tolkow, to whom
he delivered the signed Amalgamated Local 355 cards he had
acquired directly and from Assistant Service Manager Winter
(as described under headings E and F, above).' 9
Leaving Tolkow, employee Anzalone testified he came back
to the shop and immediately approached the men who had
18 Tolkow testified that Cifelli reported only that employee
Anzalone "refused " to come upstairs , that there was no mention of
UAW Representative Velez, whom he knew, that Velez had not arrived
at the shop , and was not there when he left . These assertions were
specifically contradicted by President Milligi and Service Manager
Cifelh , and have no basis for support in the surrounding testimony
19 Anzalone testified he told Winter he had to meet Tolkow to give
him the cards and that Winter said go ahead . Winter denied this
20 Among other variations , Anzalone initially claimed he had signed
cards of employees Anthony Redmond and Pat Radico. It was later
stipulated that Redmond did not begin work for Respondent Employer
until September 26 or 27, and that Radico was on vacation the week of
September 12-16 and no Local 259 card was turned over to the Board
for Radico
1305
said they wanted UAW Local 259. He told them if they
wanted UAW Local 259 to sign the cards now and he would
get them Local 259 that afternoon.
There was a good deal of contradiction and confusion,
particularly in Anzalone's testimony, as to how many of the
employees signed for Local 259 by 3 p.m. that day, when
UAW Representative Velez arrived at the shop to claim the
cards. Velez testified he received nine cards, employee
Anzalone claimed there were more than nine, but his own
testimony did not support this 20 I am persuaded by the
testimony of the other employees that UAW Representative
Velez received seven cards for Local 259 at about 3 p.m on
September 12, and had these in his possession when he met
shortly thereafter with Service Manager Cifelli and then
President Milligi. These were the cards of Peter Vath, GC-25,
John De Vaul, GC-10, Al Shea, GC-21, James Pharo, GC-9,
James Richardson, GC-22, Manuel Marquez, GC-14, and
-Michael Anzalone, GC-4.
Later in the day, at or after 4 30 p.m while washing up in
the locker room preparatory to leaving, employee Raymond
Merritt and his uncle, employee Clarence (or Sam) Merritt,
signed and gave to employee Anzalone cards GC-16 and
GC-17, respectively. 21 UAW Representative Velez remained
in the vicinity of the shop in the late afternoon, according to
President Milligi's testimony, and also met with Anzalone and
a number of the men that night at the Peter Pan diner, so that
he came into possession of the cards of the two Merritts no
earlier than the end of the workday, September 12, and not at
3 p.m. Nonetheless, even with nine cards at the end of the day,
Velez was still lacking by one a majority of the unit of 19
employees
As set out under heading F, supra, UAW Representative
Velez upon acquiring the batch of signed cards from employee
Anzalone at about 3 p.m., assembled a delegation of employ-
ees Anzalone, Shea, and Vath, and sought out President Milligi
at his office. They were halted by Milligi's secretary, and, as
already recited, UAW Representative Velez made his initial
demand for recognition for Local 259 upon Service Manager
Cifelli, when he came out of the negotiating conference
(between Amalgamated 's Business Manager Tolkow and Presi-
dent Milligi) seeking to bring employee Anzalone into the
meeting. Cifelli testified he replied to Velez "I don't recognize
you." Cifelli returned to the conference without Anzalone,
and shortly thereafter reappeared in the shop, followed soon
by President Milligi, who came into the shop from his
conference with Tolkow while UAW Representative Velez was
on the public telephone in the shop, according to Velez and
Milligi . Milligi claimed this was before 3 p.m., Velez and
Anzalone claimed it was after 3 p in. Milligi came over to Velez
21 Employee Raymond Merritt testified he received the card at 3
p in. from employee Anzalone in the lockerroom , but held it till the end
of the workday before he signed and gave it back to Anzalone
Raymond Merritt testified that his uncle Clarence Merritt signed
immediately after him , at or after 4 30 p.m Testimony of employee
Vath, referred to under heading C, supra, would indicate that Clarence
(Sam) Merritt was also asked to sign earlier but did not sign on the
earlier occasion Employee Richardson 's recollection , that he thought
but was uncertain that the two Merritts turned their cards in at a
meeting on the night of September 14 at a lawyer 's office, was too
vague to contradict Raymond Merritt
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who requested recognition for his union, but Milligi cut Velez
short, said he was not interested, and ordered Velez off the
property or he'd call the police Milligi also ordered the
delegation of the three employees back to work on pain of
being fired, and they complied and Velez left
President Milligi also received a written demand for recogni-
tion from UAW Local 259 the following day, September 13 in
the form of a telegram, GC-3, but made no response to this. It
was clear from Milligi's testimony that he knew that the oral
demand, when made, was a demand by UAW Local 259 for
recognition, and it was his position that he could ignore both
the oral and written demands because he had extended
recognition to Amalgamated Local 355 and had entered a
contract with it He was not concerned about the demands,
further testified Milligi , he regarded Local 259 demands as a
"bluff," but he did not know or ask what cards Local 259 had
on September 12 or 13.
On September 13, when President Millrgr received the
written demand from UAW Local 259, the union had nine
signed authorization cards (adding the cards of Raymond and
Clarence Merritt to the seven originally received by Velez), still
one card short of a majority of the unit of 19 employees
On the night of Wednesday, September 14, a group of the
employees, according to the testimony of employees Hugh
Elliott, Walter Sorrentino, James Richardson, Michael
Anzalone and others, met in a lawyer's office in Bay Shore. It
was an office borrowed for the meeting. Among those present
were employees Anzalone, Richardson, Shea, Pharo, Marquez,
Vath, Elliott, Sorrentino, and UAW Representative Velez and
UAW Lawyer Dorn. Lawyer Dorn was engaged in taking
affidavits for Local 259 of three of the men, Vath, Shea, and
Richardson.
Employee Elliott testified he had not been asked to sign a
card in the shop on Monday, September 12, and was given a
card to sign that night, September 14. UAW Representative
Velez and employee Anzalone told him, said Elliott, "it was
important that it was signed before then, dated before then, so
I dated it 9/12, which is my handwriting," card GC-13. In an
affidavit taken by a Board agent from employee Elliott a
month later on October 13, 1966, Elliott stated that he signed
the card on September 14 in the lawyer's office (though the
affidavit says nothing about backdating), RU-2, p. 1. Employ-
ee Richardson also testified that Elliott signed at this meeting
and that Fred Velez and Mike Anzalone told Elliott to
backdate the card to the 12th. Velez and Anzalone denied
asking employee Elliott to backdate the card, but I credit
Elliott's account In my view the falsification of the date of
the authorization card in order to qualify it as antecedent to or
contemporaneous with the demands for recognition, makes the
card of employee Elliott, GC-13, ineffective for this purpose.
At the same meeting at the lawyer's office, the night of
September 14, employee Walter Sorrentino turned over to
22 Employee Richardson's testimony does not help in this case He
testified that he thought Sorrentino signed a card that night at the
lawyer's office but was not sure , and couidnot remember Sorrentino
handing anything to Anzalone or Velez at that meeting
23 I do not agree with , or perceive any basis for, the further charge
by counsel for the Respondent Employer that employee Anzalone and
UAW Representative Velez led employees at the meeting of September
14 to believe that the lawyer who took the affidavits of employees
Shea, Richardson , and Vath was an official representative of the NLRB
(brief, p 32), and that this alleged representation , that the NLRB was
active on behalf of Local 259, coerced the signing and delivery of the
cards by employees Elliott and Sorrentino (brief p. 33). Counsel also
UAW Representative Velez a card for Local 259 dated
September 12, GC-18, according to Sorrentino's testimony.
He further testified that he signed the card on Monday
afternoon September 12, but kept it and did not turn it in
until the meeting at the lawyer's office, two nights later.
Employee Anzalone purported to corroborate Sorrentino,
testifying that Sorrentino signed on Monday in Anzalone's
presence but that because Sorrentino was an older man and
was afraid of losing his job insisted on holding the card until he
was sure they would get Local 259 in the shop. However, in
two affidavits which Sorrentino gave to the Board only a
month after the event, on October 13, RE-5, and October 22,
RE-6, respectively, he stated that he signed the card for Local
259 in the night or evening meeting at the lawyer's office.
Both affidavits also state that he signed on the same day that
President Millrgr read off the contract to the men in the shop
(which was Monday, September 12), but further state that the
meeting in the lawyer's office took place the night of that
same day (which, of course, was erroneous as the testimony
indicated). Sorrentino claimed at the hearing that he told the
Board investigator that he turned the card in at the lawyer's
office, not that he signed it there, and that he asked the Board
investigator to correct this in the second affidavit. But the
second affidavit, RE-6, para. 4, repeats that he overlooked
this when he read and signed the second affidavit.22
I find employee Sorrentino' s explanations incredible and
believe that the truth is set out in his affidavits, and that he
signed card GC-18 in the lawyer's office on September 14 and
dated it September 12. Even if I accepted Sorrentino's story
that he signed on September 12, which I do not, it is
nevertheless uncontroverted that he did not deliver the
authorization card until September 14. Hence the card was not
in Local 259 's possession , and could not have been effective as
an authorization, until the night of September 14, one day
after the last of Local 259's demands for recognition was
received by the employer
While there is no direct evidence, as in employee Elliott's
case, of solicitation of employee Sorrentino to backdate his
card, I agree with the contention of Respondent Employer
that employee Sorrentino backdated his card, as did Elliott, in
the same atmosphere and for the same fraudulent purpose of
aiding UAW Representative Velez in a showing that he had a
sufficient number of authorizations to constitute a majority of
the unit when the demands for recognition were made. 23 I
therefore find that Sorrentino 's authorization card, GC-18,
was an ineffective authorization in relation to the demands for
recognition, and that UAW Local 259 had only nine valid
authorization cards, or one less than the needed majority of
ten, when its final demand for recognition was received by the
employer on September 13
Majority status of a union on a request for recognition is
normally determined as of the time the request is received by
included the cards of the two Merritts in this charge but these were not
involved in the meeting at the lawyer 's office, see text and in. 21 , supra.
The assertion by counsel (citing Tr. 502) is based solely on the initial
confusion of witness employee Shea, who, in testifying , confused UAW
Lawyer Dorn , to whom Shea gave an affidavit in this meeting in
September, with Board Agent Weiss , to whom Shea gave an affidavit in
October In the testimony thereafter came enlightenment on the
confusion of the witness, and I suggest there was no warrant for counsel
for Respondent Employer to make the charge by taking out of context
the initial error of the witness who made no claim of misrepresentation
by Anzalone or Velez
RAYMOND BUICK, INC. 1307
the employer, NL.R B v. Security Plating Co, 356 F.2d 725,
727 (C.A. 9, 1966). The General Counsel contends, however,
that UAW Local 259 has the right to treat its demand, which
was peremptorily rejected and ignored, as a continuing
demand, and to count the employee authorization cards
executed and delivered on the day after the final demand was
received to establish that it had a majority of the unit
The test of a continuing demand was set out in Local No
152 v. NL.R B, 343 F.2d 307, 310 (C.A D.C 1965), where
the Court said
The Board was justified in construing the Union's
conduct . . as a continuing demand for recognition in
circumstances where a formal demand in light of the
Company's prior peremptory refusal would have been
useless. An employer violates Section 8(a)(5) when . . it
rejects a Union's bargaining request, made in the honest but
mistaken belief that a majority had been obtained, without
questioning the Union's representative status, and the
Union does obtain a majority shortly after such request.
[Emphasis supplied.]
The italics indicate the two elements essential to gen-
erate a continuing demand. I agree with the General Coun-
sel that the first element was present, that the conduct of
the Respondent Employer in dealing with the oral demands by
UAW Representative Velez and later ignoring the written
demand, was a peremptory rejection of UAW Local 259
regardless of what its representative status might have been See
Arkansas Grain Corporation, 163 NLRB No 92 (1966), and
cases cited
However, I find lacking the second element, namely an
honest but mistaken belief on the part of the union representa-
tive when making the demand that a majority had been
obtained The only authorization cards acquired by the union
after its demands were received by the employer were the two
from employees- Elliott and Sorrentino, which cards were
fraudulently backdated to coincide with the time of the oral
demand. The conduct of UAW Representative Velez, in
suggesting or joining in the suggestion of backdating these two
cards acquired on September 14, hardly comported with an
honest belief that he had a majority in hand on September 12
or 13. In this connection, as far as was then known at least one
and probably both of the two cards executed on September 14
were needed for Local 259 to demonstrate a majority,
depending on whether the unit comprised 18 employees or 19
employees (as turned out to be the case) or 20 employees (as
might have been the case). Through its representative, UAW
Local 259 shares responsibility for the reprehensible conduct
which, in my opinion, would not entitle a union to invoke the
equitable doctrine of a continuing demand.
Conclusion-No 8(a)(5). I conclude that the demands of
UAW Local 259 on September 12 and 13 for recognition as
bargaining representative of the employees failed for lack of a
majority of effective employee authorizations, and for this
reason I will recommend dismissal of the 8(a)(5) refusal to
bargain charge against the Respondent Employer.24
H The Contract with Amalgamated
Local 3.55-Illegality, Violations
Returning to the events in the afternoon of September 12,
1966, following the confrontation at about 3 p.m. between
President Milligi and UAW Representative Velez and his
delegation of three employees, President Milligi had Service
Manager Cifelli assemble all of the shop employees in a
meeting at 4 p.m., according to Milligi and Cifelh. President
Milligi, holding papers in his hand, according to employees
Pharo, Marquez, and Anzalone, announced to the men that
they had wanted a union and now had a union (like it or not,
according to employee Pharo2 5) and a union contract, and
proceeded to read from or explain the papers he held, in
particular the pay increase and benefits.
As already noted under heading F, supra, the contract with
Amalgamated Local 355, RU-4, comprised 19 articles and an
appendix, and included a union security clause, article II,
requiring employees to maintain, or to acquire within 30 days
and maintain, union membership, and a checkoff clause, article
IX, under which the employer agreed to deduct from wages
and pay over to the union all membership dues and initiation
fees of the employees pursuant to their authorization. It was
stipulated that there was no mention at this meeting with the
men that they had to join the union pursuant to the union
security clause However, there was testimony that employee
Blinovs went about distributing for signature and collecting
Amalgamated Local 355 cards immediately following the
meeting. Employees De Vaul, Marquez, Shea, and Vath
testified that they signed cards for Local 355 after Milhgl
announced the contract 26 The contract, dated September 12,
1966, provided that it should be effective immediately, and
President Milligi testified that it was put into effect in all
respects from that date onward At the time of the hearing, he
said, he had about 22 or 23 authorization cards for Local 355.
Each of these cards contains an authorization to the employer
for the checkoff of union dues and initiation fees.
Conclusions. The facts as recited under headings E and F,
above, establish that the Respondent Employer extended
recognition to, and executed an agreement with, the Respond-
ent Union when the union did not represent an uncoerced
majority of the employees. Such recognition of and agreement
with a minority union violates Section 8(a)(1) and (2) of the
Act on the employer's part, and Section 8(b)(1)(A) on the
union's part, and would be violations even if the employer and
union had entertained good faith beliefs that the union
represented the majority. International Ladies' Garment
Workers Union v. NL.R.B. (Bernhard-Altmann Texas Corp.),
366 U S 731, 738-739 (1961).
However in this case, as the cumulative facts under headings
D through H demonstrate, neither the Respondent Employer
nor the Respondent Union acted in good faith but rather in
unlawful combination by use of employer assistance in the
union's organization of the employees, including direct em-
ployer solicitation and promise of benefits, followed by the
24 See A T I Warehouse, Inc, supra, 169 NLRB No 75 (1968),
requiring repetition of a demand for recognition when a valid majority
was attained and rejecting the union 's reliance upon a demand made
before that time
25 Milligi testified he said whether "I" like it or not
26 Employee Vath claimed that he and employee Shea told UAW
Representative Velez thereafter that afternoon "to forget the whole
thing with 259," but I find this difficult to accept as true in view of the
the testimony that, among other things, Vath and Shea attended further
meetings with Velez that night , September 12, and again the night of
September 14 at the lawyer 's office where each gave statements to
Local 259 , and later took part in the strike protesting unfairness to
Local 259
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adoption of contract provisions designed to maintain the
assisted representative status. The collusion of Respondent
Employer and Respondent Union is evident from, among other
things, the precontract liaison between Union Business Manag-
er Tolkow and Raymond Buick's President Milligi, the brazen
proposal of Tolkow that recognition be given before his union
represented any employee, Milligi 's willingness to agree if
Tolkow made a showing, and Tolkow's later claim of majority
before he had any signed employee authorization in hand; the
use of the supervisor, Assistant Service Manager Winter, to
distribute the authorization cards and procure employee
signatures ; the open solicitation by Winter of employee
authorizations in the shop on shop time, including the
transaction of union organization business at the manager's
service desk; and the speed of both recognition of the union
and negotiation of a not overly simple collective bargaining
contract in a claimed 2-hour period by an employer who had
heretofore successfully opposed unionization of his shop.
Further light on the "deal" between the two parties is
reflected from their reaction when they learned that the rival
union, UAW Local 259, was on the scene. Out of the
testimony and sequence of events concerning the signing of the
contract, see heading F, above, came the indication that the
contract had not yet been signed at the time that the
competing union's demand for recognition became known to
the negotiators but was signed immediately thereafter. This
action combined with President Milligi's contemporaneous
ejection of the UAW representative from the premises without
allowing him to say what he was prepared to demonstrate,
would indicate that Milligi had no bona fide interest in
ascertaining the actual state of employee preference.
The demand of UAW Local 259 for recognition, backed by
authorizations of close to a majority of the employees, some
of whom had also signed for Amalgamated Local 355 raised a
real question regarding representation of the employees under
the Midwest Piping rule, 63 NLRB 1060 (1945) The employ-
er's duty to maintain strict neutrality and await Board
resolution of the rival claims was breached by according the
advantage of a contract to Amalgamated Local 355, constitut-
ing additional unlawful support of Local 355 by the employer
in violation of Section 8(a)(2), and interference with the
self-organizational rights of employees, in violation of Section
8(a)(1) of the Act, N L.R.B v National Container Corp , 211
F.2d 525, 536 (C.A. 2, 1954), Iowa Beef Packers, Inc v.
N.L.R.B., 331 F.2d 176 (C.A. 8, 1964), cases in which, as
here, a majority had been unlawfully achieved by unfair labor
practices While, under the 1-year bar of Section 9(c)(3) of the
Act, UAW Local 259 was not in a position to obtain an
election on September 12, 1966 (having lost an election on
February 1, 1966), it was nevertheless not disabled from
achieving recognition on an authorization card showing,
Conren, Inc. v. N.L.R.B., 368 F.2d 173 (C.A. 7, 1966) cert.
27 Respondent Employer argues that under Keller Plastics Eastern,
Inc., 157 NLRB 583 (1966), it was entitled to a reasonable time after it
recognized Amalgamated Local 355 to bargain with that union (even if
the union subsequentely lost its majority ), so that UAW Local 259's
demand, made after recognition had been accorded to Amalgamated
Local 355, came too late to raise the question regarding representation
However , the Keller Plastics principle in its enunciation applied to a
voluntary recognition "validly granted " to a majority union that lost its
majority before execution of the contract , and distinguished the
recognition " invalidly granted " in the Bernhard -Altmann case (Interna-
denied 386 U.S. 971. UAW Local 259 attempted this on
September 12 and 13. That UAW Local 259 was found to be
one card short of a majority of the unit (heading G, supra),
and therefore not able to lay claim to a bargaining order on its
demands of September 12 and 13, does not alter the fact that
a real question regarding representation was properly raised by
Local 259 and remains unresolved .27
Coupled with the further unlawful assistance of including a
union security clause in the contract with Amalgamated Local
355 when it did not represent a majority of the employees,
and of maintaining the clause in effect by honoring checkoff
authorizations of the employees, see Local 1424 etc Machin-
ists v. N.L.R.B. [Bryan Mfg. Co.], 362 U.S. 411, 413-414
(1960), the total conduct of the employer interfered with its
employees self-organizational rights in violation of Section
8(a)(1), assisted Amalgamated Local 355 in violation of
Section 8(a)(2), and discriminated in regard to the hire of
employees and tenure of employment in violation of Section
8(a)(3) of the Act. Correlatively, Amalgamated Local 355, in
utilizing the unlawful assistance of the employer, acted in
restraint of the self-organizational rights of the employees in
violation of Section 8(b)(1)(A), and, in executing and giving
effect to the union security agreement, caused the employer to
discriminate in regard to hire of employees and tenure of
employment in violation of Section 8(b)(2) of the Act
N.L.R B. v. Revere Metal Art Co., 280 F.2d 96, 100 (C.A. 2,
1960), cert. denied 364 U S 894, Paul M. ONelll Int'l
Detective Agency v. N.L R.B., 280 F.2d 936, 946 (C.A. 3,
1960), Salmirs Oil Company, 139 NLRB 25,26 (1960).
1. Interference of Amalgamated Local 355
with Board Investigation
In the testimony of President Milhgi under heading F , supra,
respecting his negotiating session with Union Business Manager
Tolkow, on the afternoon of September 12, it was noted that
Tolkow had referred to employee Anzalone as his shop
steward. Based upon the testimony of both Anzalone and
Tolkow it appears that notwithstanding Anzalone's seeming
change of heart about Amalgamated Local 355 on September
12, he proceeded to act as shop steward and claimed he had
been so designated by Tolkow when employees Mercer and
Blinovs questioned his right. As a result the employees held an
election and employee Anzalone was elected shop steward
Employees Mercer and Blinovs disputed the result and Union
Business Manager Tolkow sent Charlie Goldstein, a full-time
officer of the union, to conduct an election Again, employee
Anzalone was elected shop steward.
These events occurred in the latter half of September and
early October following announcement of the contract on
September 12, and in this period Union Business Manager
tional Ladies' Garment Workers Union v. N L R. B., 366 US. 731,
discussed supra), where recognition was accorded to a minority union,
as was the case here . in addition, there are limitations on application of
the Keller Plastic 's principle, including its inapplicability where "it does
not affirmatively appear . that the Employer extended recognition
. in good faith on the basis of a previously demonstrated showing of
majority at a time when only that union was actively engaged in
organizing the unit employees ." Sound Contractors Association, 162
NLRB No 45 (1966), and see Superior Furniture Mfg Co, 167 NLRB
No 40 (1967)
RAYMOND BUICK, INC.
Tolkow had occasion to talk to employee Anzalone on the
telephone several tunes (including discussion, said Anzalone,
on keeping Local 259 out of the shop) and to visit the shop at
least twice 2 8 One visit took place on or after September 26,
when Tolkow said he came to the shop to introduce his fellow
officer Charlie Goldstein who, he said, would service the shop,
and to make sure there was an official election for shop
steward However, according to Tolkow, he introduced Gold-
stein only to employee Anzalone at the latter's work station,
and, as both Tolkow and Anzalone testified, gave Anzalone a
check for $25 in Goldstein's presence. According to Anzalone,
Tolkow said there would be more. According to Tolkow, what
he said to Anzalone was, here's the check we feel would
compensate you for time lost (in organizing). Although
Goldstein was present in the hearing room at times, he did not
testify.
The check, GC-5 (which was not cashed), is a check of
Amalgamated Local 355 payable to Anzalone, dated Septem-
ber 26, 1966, and bears the inscription "time lost-organiza-
tion." According to Anzalone, Tolkow said he had to put that
on the check to cover the check
Union Business Manager Tolkow's explanation goes back to
his first meeting with employee Anzalone on September 12,
when Anzalone delivered to Tolkow the signed authorization
cards for Local 355 In that meeting, according to Tolkow,
Anzalone attempted to withold the cards unless he was paid
$500 for organizing. Tolkow said he rebuffed Anzalone who
finally surrendered the cards and then asked for $100 to pay
for his time lost in organizing Tolkow testified he refused to
make any commitment for any sum. While there was no
discussion of what cards Anzalone had procured or how much
time he had spent or lost in organizing work, Tolkow said he
told Anzalone he would discuss the time loss with the union
officers and executive board and then talk further with
Anzalone.
Employee Anzalone's version of the September 12 discus-
sion was that Tolkow asked if he still wanted the other job (at
Roberts Chevrolet) or preferred to stay at Raymond Buick
Anzalone said, if he would make out better he would prefer to
stay. Tolkow allegedly replied that Anzalone would make out
better at Raymond Buick and that "there was a package in this
thing" for him for organizing. Anzalone asked what Tolkow
meant by a package and Tolkow reputedly said "there is four
or five hundred dollars organizational costs that can be
absorbed in this thing." Anzalone said he "didn't see any
package," whereupon, according to Anzalone, Tolkow replied
that these things would work out later if Anzalone "played
ball." Anzalone's testimony agreed with Tolkow's testimony
that there was no deal to exchange the cards for $400 or $500
or any sum, but Anzalone denied that loss of time was
discussed or that he lost time in organizing
Less than 2 hours after this discussion of money between
Union Business Manager Tolkow and employee Anzalone,
Tolkow in his negotiating conference with President Milligi and
Service Manager Cifelli was, by his own admission as well as
their testimony (see heading F, supra ), calling for employee
Anzalone to come into the conference room and hear the
negotiating results, and extolling employee Anzalone to
President Milligi as the man he wanted for shop steward. Thus,
28 Tolkow claimed Anzalone had telephoned on September 13 to ask
his forgiveness for going over to Local 259, saying he wanted to stay
and be the shop steward . Tolkow said he told Anzalone he was not the
1309
the circumstances make clear that, up to this point in the
afternoon of September 12, Tolkow did not regard Anzalone
as one who had tried to hold him up for money, or whom he
could not trust, and lead me to conclude that it was Anzalone
and not Tolkow who substantially related the truth of what
occurred in the earlier meeting between Tolkow and Anzalone
Shortly thereafter, following the bizarre intrusion of the
UAW Local 259 demand into the contract negotiations and the
awareness that employee Anzalone had associated himself with
it, Union Business Manager Tolkow had good reason, from his
standpoint, to distrust Anzalone Indeed he claims he told
Anzalone so the next day, see note 28 above, and he had a part
in the succeeding days in the unsuccessful attempts to vote
Anzalone out as shop steward, according to the testimony
already noted.
Notwithstanding this state of affairs, Union Business Manag-
er Tolkow testified that four days later, on September 16, he
talked to the officers of the union about compensation for
employee Anzalone and that they authorized payment of $25
No officer of the union appeared to testify in support of this
assertion Although approval of all expenditures, other than
minor items such as postage, had to be approved by the
executive board of the union, according to Tolkow, he did not
obtain such approval until October 27, 1966, see RU-3 This
was 6 weeks later, well after the charge against the Union in
CB-259 was filed on September 19, and after the Board
investigation of all three cases in this proceeding was largely
completed. There had been no prior meeting of the executive
board to give approval, said Tolkow.
The check for $25 was dated September 26, and Tolkow
testified he delivered it to Anzalone after September 26.
Anzalone agreed it was the latter part of September. Not long
after the delivery of the check, the two men met again, this
time in Tolkow's car outside the shop after he came to the
shop and took Anzalone out with Manager Cifelli's permission,
according to Cifelli
Tolkow and Anzalone differ as to which of them asked for
the meeting, but there is no question that when the meeting
took place it was concerned with Anzalone's testimony to the
Board agent who would be investigating the case and taking
statements from persons involved.
According to Union Business Manager Tolkow, employee
Anzalone said a meeting was going to be held with a Board
investigator that night or the next night, that he, Anzalone,
held "the key to the Board procedure," that he could testify
one way or the other, and if Tolkow gave him $1,000 in cash
he would testify the way "we wanted him to." Tolkow
testified he said to Anzalone,
[A] pparently you don't learn but I told you once, I'll
tell you again, there is no 1,000 bucks. I have no way to get
it I won't give it to you I won't deal with you. I don't
trust you. And he said, well, you can always get the 1,000
bucks from Ray Milligi so you don't have to take it out of
your pocket.
At this point said Tolkow he uttered "words unprintable,"
ordered Anzalone out of the car, backed the car up to the
shop, and ran "steaming mad" into the shop to tell Service
Manager Cifelh that Anzalone was finished as shop steward
"nght now. I say so as head of the union, and that's it."
kind of guy that could be trusted. Anzalone denied that such a
conversation took place
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Tolkow, Cifelli offered to talk about it, but
Tolkow declined, told Cifelli to tell President Milligi that
Anzalone was through as shop steward, and left.
Employee Anzalone's version of the meeting was that Union
Business Manager Tolkow wanted to know Anzalone's testi-
mony so that Tolkow could instruct Assistant Service Manager
Winter and avoid conflict between the testimony of Winter and
Anzalone Anzalone testified
I said I wouldn't do it ... he said he wanted me to do it.
And I said no . . He was pretty . . mad and said that this
whole situation is going to run hum and Mr. Milligi a few
thousand dollars and if he thought that a thousand dollars
would get this thing over with, that would be it, to which I
answered I didn't see anything
Employee Anzalone further testified that he left the car and
went back into the shop followed by Tolkow. Anzalone
headed for the men's room to cool off, he said, and observed
that Tolkow "took a hold of' Service Manager Cifelli.
Service Manager Cifelli testified he had given permission one
afternoon in the second week in October, around the 12th or
13th, to Union Business Manager Tolkow to take employee
Anzalone out of the shop, that they were gone about a half
hour when Tolkow returned and told him Anzalone was no
longer shop steward. Cifelli said he looked for Anzalone and
found hum in the locker room and they discussed Tolkow's
pronouncement that Anzalone was removed as shop steward
According to Cifelli, Anzalone appeared dejected ("real
down") and said, "I can be bought but I ain't going to be
pushed around." Cifelli testified he said to Anzalone he did
not know what Anzalone was talking about. Anzalone testified
that in this conversation Cifelli told him he "was a fool not to
go along with 355 and ever start with this 259," to which he
replied he had picked a side and was fighting for it
In response to questions by counsel for the Respondent
Union, employee Anzalone testified that the feeling of
indignation which he went to cool in the locker room was
stirred by "Mr. Tolkow's attitude, not the money, not even so
much what he said. His attitude . [t] hat he was my superior
. that he was going to tell me what I'm going to do, and I
wasn't going to do it ... [f] or anything." Anzalone was
further asked, when Tolkow gave him the $25 check, did he
believe Tolkow still thought he was loyal to Amalgamated
Local 355. Anzalone replied. "No. I felt he thought he could
still buy me," and that when Tolkow said there will be more, it
was evident "I was supposed to play ball."
The entire circumstances recited suggest that the $25 check
to employee Anzalone was intended to sweeten the way for
future services and was not compensation for something past,
though dressed as such. It would be asking too much to believe
that Union Business Manager Tolkow would have lifted a
finger after September 12, 1966, solely to recompense with
even $25 the man who had tried to undo the organizational
achievement Tolkow had engineered. In the later September-
October period Tolkow's achievement was under challenge of
charges and a Board investigation. Employee Anzalone was
someone to be taken into account, he still had the support of
and could no doubt influence a majority of the men who
refused to unseat him as shop steward, and, as Tolkow
apparently concluded, he could be tempted by money. Maybe
the $25 down payment or payment in full appeared to
Anzalone to be inadequate, or the vague talk of $1,000
undependable, or Tolkow's "superior" attitude overriding of
any consideration of money, but for whatever reason Tolkow's
demand for service following the $25 check, that Anzalone
reveal and help coordinate the testimony he would give the
Board agent , was rejected by Anzalone It was this rejection, in
my view, and not the alleged moral indignation at being asked
to pay, if pay was asked, that sent Tolkow raging to Manager
Cifelli that Anzalone was removed as shop steward .2 9 The
evidence establishes an unsuccessful attempt by the union
representative to obtain and tamper with the testimony of an
employee who was to be a Board witness.
Counsel for the Respondent suggests that what employee
Anzalone told some of his fellow employees concerning his
dealing with Union Business Manager Tolkow demonstrates
that Anzalone fabricated the alleged offer of money. Employ-
ee Anzalone said he told his fellow employees that "I could
have earned a thousand dollars." Anzalone did not fix a time
but employee Richardson claimed the time was the day the
contract was signed, September 12, when, said Richardson,
employee Anzalone came to his fellow employees and said he
wouldn't go against the men, he didn't want the $1,000, and
that he was going to bring Local 259 in. According to
Richardson, Anzalone explained his signing the men up for
Amalgamated Local 355 as the means to bring in UAW Local
259 because, he said, Local 259 had been voted down in
February and it would take a year until Local 259 could come
back for another vote unless some other union tried to get in,
opening the door for Local 259 also. While Anzalone denied
making this explanation, employee Vath testified to a similar
explanation from Anzalone on another occasion.
Employee Richardson, who later quarreled and broke with
Anzalone when they were on strike in the period October
20-November 23, claimed that Anzalone told him during the
strike that Tolkow had not offered the $1,000, and that it was
a story made up to speed up the Labor Board's actions on the
charges filed. Again, Anzalone denied saying this. Richardson's
animosity towards Anzalone would make Richardson's uncor-
roborated claim suspect, and the reputed reason, that
Anzalone said he made up the story (on September 12) to
speed up action on charges (that had not yet been filed on
September 12), makes it unlikely that Anzalone confided such
a repudiation to Richardson around the time the two men
broke However, even if Anzalone did not confide in Richard-
son, from Anzalone's description of what occurred between
him and Tolkow in their September 12 meeting, supra, it
was not true that Tolkow had offered or that Anzalone had
declined $1,000 on September 12 and Anzalone had obviously
stretched the truth of this encounter to impress a fellow
employee with his interest in the employee's welfare.
After September 12, other employees than Richardson
heard Anzalone talk of money offered to him by Tolkow.
29 If Tolkow were to be believed , he showed no lasting sense of second occasion the difference from Tolkow's standpoint appears to be
outrage when , as he wanted to be believed, Anzalone previously that he did not get the corporation he probably believed he had paid for
attempted on September 12, to hold him up for money for the or begun to pay for and undoubtedly believed he would be entitled to
authorization cards Then , Tolkow got his cards , and demonstrated that from a shop steward, and the shop steward was precipitately removed
he was quite happy to have Anzalone as his shop steward On this
RAYMOND BUICK, INC. 1311
Employees Shea, Elliott, Sorrentino, and again Richardson
(allegedly for a second time), said they heard it, the latter
three on October 13, when a group of the men met at the
Peter Pan diner for interviews with the Board investigator.
Shea, who did not attend the October 13 meeting, and Elliott
and Sorrentino, who did attend, testified that the reference
was to an offer of "money," whereas only Richardson (also
present at the October 13 meeting) said the reference was to
"$1,00030 Anzalone also testified he did not mention a
specific amount at this meeting and that he turned over the
$25 check received from Tolkow to the Board investigator in
the interview that night.
The conversations between Anzalone and his fellow employ-
ees are, of course, not evidence that Tolkow offered money to
Anzalone for testimony. On the other hand, notwithstanding
the argument of counsel for Respondent Union, these conver-
sations do not refute the evidence already reviewed that
employee Anzalone had been offered money by Union
Business Manager Tolkow for testimony, at least $25 with the
promise of more and the implication that it would be as much
as $ 1,000
Conclusion Even if an offer of money were not involved, it
is established that requests by union representatives of
employees for their pretrial testimony given or to be given to
the Board have inhibitory effects on employee rights under
Section 7 and constitute serious interference with Board
process, in violation of Section 8(b)(1)(A) of the Act,
Farmbest, Inc, 154 NLRB 1421, 1461-62 (1965). Here, the
injection of the offer of money by the union representative has
made clear and compounded an improper purpose to induce
and assist the employee to tailor testimony to be given to the
Board, and I find that Respondent Union has violated Section
8(b)(1)(A) of the Act
J Discharge of Employee Anzalone
Employee Anzalone was hired on August 3, 1966, by
Service Manager Cifelli and discharged on October 19, 1966,
by President Milligi. Cifelli had informed Anzalone that the
shop was nonunion, and Cifelli was apprised that Anzalone was
a union member and had worked in union shops but did not
object to working in a nonunion shop. Cifelli recalled
discussing Amalgamated Local 355 with Anzalone but not
UAW Local 259.
President Milligi and Service Manager Cifelli conceded that
employee Anzalone was a good mechanic. Anzalone's
difficulties with management began after the contract with
Amalgamated Local 259 was put into effect September 12.
There was evidence of some smoldering conflict over excessive
phone calls placed and received on the shop phone by
Anzalone in the period following September 12, but the
eruption occurred after October 12 or 13, following the
announcement to Cifelli by Union Business Manager Tolkow
that Anzalone had been deposed as shop steward and to tell
this to Milligi, see heading I, supra
On Friday, October 14, employee Anzalone told Service
Manager Cifelli he would need time off to be at a title closing
on the following Tuesday, October 18, for a new house he had
contracted for in March. Anzalone testified he had already
moved into the house on Sunday, October 2, and had told
Cifelli so. Cifelli was under the impression that Anzalone had
already closed title and said so to Anzalone, but Anzalone
replied he had not. Anzalone said he offered to show Cifelli
the letter he had on the subject but Cifelli walked off. On
Monday morning, October 17, according to Cifelli and
President Milligi, Cifelli told Milligi that employee Anzalone
had taken time off 4 or 5 days since he'd been there (the
stipulated record GC-6, shows five absences totaling 3 days)
and was "conning" him for another day for a title closing
which he already had. Milligi said he suggested a letter to stop
Anzalone, which Cifelli wrote and Milligi signed and handed to
Anzalone the same day, October 17, in the presence of Cifelli,
Milligi's receptionist, and the cashier
The letter, GC-6, was dated October 17, listed five previous
absences since August 5 (totaling 3 working days) and told
Anzalone that further absenteeism cannot be tolerated and
should the situation continue it would be necessary to take
disciplinary action against him.
After reading the letter, employee Anzalone told President
Mrllrgi he had to be at the title closing that next day and asked, if
he went, would he be fired. Anzalone testified that Milligi
answered to interpret the letter any way he wanted. Milligi
testified he did not want to discuss the letter and indeed used a
letter because he accepted Cifelh's belief that Anzalone did not
need the time for a closing. Milligi conceded that absences by
other employees did not draw letters, for the reason, he said, that
he knew about and sympathized with the circumstances of those
absences. He further testified that Anzalone's previous absences
had been approved or excused by Service Manager Cifelli or
Assistant Service Manager Winter.
On the following day, October 18, according to President
Milligi, he was asked by employee Richardson for a meeting, and
met with Richardson and four or five men (other than Anzalone)
in the shop during lunch hour. Milligr testified that Richardson
told him if anything happened to Mike Anzalone the men were
going to stand behind him. Milligi said he replied he had nothing
planned for Anzalone and no intention of firing him. As the
meeting broke up Anzalone came by and asked Mrllrgi again if he
"sanctioned" his going to the closing, and again Milligi refused to
discuss it, as Milligi and Anzalone both agree
That afternoon about 1 30 p.m. Anzalone took off for the
closing, showing papers to Assistant Service Manager Winter
and saying he was going Crfelli said Winter reported this to
him, and employee Sorrentino, who had been one of the
conferees earlier with President Milligi, observed Cifellr pull
employee Anzalone's timecard. Anzalone came back to the
shop in the late afternoon and asked Winter and Cifelli about
any work they might have but he was told there was none.
The next morning, October 19, employee Anzalone was
handed another letter by President Milligi, again in the
presence of Service Manager Cifellr and the two women
employees This letter, GC-7, dated October 19, addressed by
President Milligi to employee Anzalone, was concerned with
the alleged complaint of a customer Lorenzen and dealt with
"poor and sloppy" work on his car, which had been returned
earlier for further work, and putting excess mileage (10 miles)
on the car in road testing it the previous day, October 18. The
30 Employee Vath testified that he ascertained from Anzalone before without reference to amount and ascertained that Anzalone did not
or after October 13, he was not sure , that the amount was $ 1 , 000, but claim it was from President Milhgt, see discussion under heading J, infra
on the night of October 13 discussed with Anzalone an offer of money
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter told Anzalone that such performance would not be
tolerated. Anzalone denied the correctness of the letter.
Service Manager Cifelh claimed that the customer had made
the complaint the evening of October 18 at 6 p.m., that on the
next morning, October 19, he discussed it with Anzalone, who
claimed whatever testing he did was needed, and that he,
Cifelli, then discussed the complaint with President Milligi
Milligi conceded that giving such a warning letter to one of the
mechanics was unusual, and that he had never before given a
letter to a mechanic for not doing good work or "messing up"
a job The action would be to let the man go, he said.
Notwithstanding the language of the letter, Milligi testified
that the repair data in the letter was intended merely for
identification and not to censure the employee for poor work
causing "comebacks," and that the censure was for the alleged
excess mileage in road testing.
When President Milligi had his discussion with employee
Anzalone about the Lorenzen car and handed Anzalone the
warning letter that morning, October 19, Milligi, according to
his own testimony, made no mention to, or inquiry of,
Anzalone regarding the alleged account Milligi claimed he had
already received from employee Lapple the previous night,
October 18, namely, that Anzalone had told his fellow
employees that Milligi had offered him a bribe of $1,000 to
keep UAW Local 259 out of the shop.
According to President Milligi , employee Robert (Bobby)
Lapple came to him with this account, accompanied by
employees Blmovs and Mercer of the body shop, at 5 p in. on
October 18 Lapple was then the new car make-ready man,
who later succeeded Al Baghone in February 1967, as assistant
to the assistant service manager As Lapple allegedly recounted
it to Milligi, Lapple said he had attended a meeting of a group
of employees at the Peter Pan diner on the night of October 13
where those in attendance were to give affidavits to the
investigating Board agent Lapple had not been among those
invited, he said, but employee Richardson asked him to come
along and he did, but he was not interviewed for an affidavit
that night The men sat about at a few tables, pulled together,
for several hours talking and eating while one-by-one a member
of the group would go into the next room for his interview
with the investigator and return to send in another man.
According to employee Lapple, who said he was at the diner
from about 5 30 or 6 p.m. until 9 p.m., when employee
Anzalone returned to the tables from his interview he told
those present that he had shown the Board investigator a check
for $25 from Union Business Manager Tolkow and had told
the Board investigator that President Milligi had offered him a
bribe of a substantial amount of money Lapple apparently
told Milligi that Anzalone said $1,000, but at the hearing
Lapple wasn't sure whether it was $500 or $1,000.
Lapple said he discussed the statement by Anzalone with
employees Blinovs and Mercer, who were among those that
had not attended the October 13 meeting. They thought he
ought to tell President Milligi, and Lapple did so when the
three men came to Milligi on the evening of October 18.
Milligi allegedly said to Lapple, this was a pretty serious
charge, questioned him closely, and suggested he go home and
think about it and, if he was sure, to put what he recalled in
writing. Lapple testified he gave Milligi a statement , the next
31 Employee Vath testified that it was he who brought up the bribe
subject Employee Anzalone testified that Vath was constantly "on his
back " to get him to talk about the offer of a bribe but that he put him
morning, October 19, at about 9 30 or 10 a in , RE-8, dated
October 19, 1966. The statement reads.
On October 13, 1966 at a meeting at Peter Pan diner of
the UAW Mike Anzalone made the statement that Mr
Milligi offered him (Mike) a bribe of $1,000 to the union
out [sic] He said this before Buddy Elliot, Jim Pharo, Pete
Vath, Walt Sorrentino, and others I don't remember. He
also said he told it to the labor board man who was there
that night.
Robert Lapple
Examination of employee Lapple at the hearing indicated
not only that his memory of the incident was weak but that, in
the context of the testimony of the others who were present
on October 3, he was mistaken
Thus, notwithstanding employee Lapple's written statement
to President Milligi on October 19, repeated in his affidavit to
the Board agent on October 24 (GC-33, ¶3),that Anzalone
said Milligi offered him $1,000, Lapple testified he was not
sure whether the amount was $500 or $1,000. Again in both
statements Lapple said that Peter Vath was present when
Anzalone made the alleged bribe claim. Lapple's testimony at
the hearing was that Vath had been taken back for his
interview with the Board agent and was not present when
Anzalone spoke of the babe This is not only contradictory in
itself but significant in view of the testimony by and about
Vath.
Employee Lapple testified that Anzalone made his state-
ment within 5 to 15 minutes after his coming out of the
interview with the Board agent, and in the presence of a
number of employees at the table including Elliott, who sat
immediately at Lapple's left, and Richardson and Sorrentino,
among others.
Employee Elliott who was recalled by the Respondent
Employer on this subject did not corroborate Lapple. Elliott
testified that late in the evening about an hour or an hour and
a half after Anzalone came back from talking to the Board
man, somebody, he did not know who, said in the course of
general talk at the table that Milligi had offered money to
Anzalone There was no amount mentioned, said Elliott, and
there was "no response" and "no deal" made over it.
Early in the evening, testified Elliott, Anzalone had told
him, Elliott, that Union Business Manager Tolkow had offered
Anzalone a bribe, and not long thereafter, continued Elliott,
employee Vath engaged Anzalone in a conversation about a
bribe, Vath saying it could only be one or two people, Millrgr
or Tolkow, whereupon Anzalone replied to Vath that he
would find out later, in due course Elliott said he could not
remember whether Vath narrowed the question down as to
whether it was Milligi , but employee Vath, testifying about the
incident, said that when Anzalone replied that he would find
out later, he asked Anzalone, was it Milligi?, and Anzalone said
no. Then Vath asked if it was Tolkow, and Anzalone replied,
said Vath, that he would find out in due time. 31 Lapple
claimed he did not hear this conversation between Anzalone
and Vath, notwithstanding he testified to sitting at the table
from about 5:30 p.m. to 9 p.m. except for brief interruptions
to go to the lavatory or to get a hamburger.
Employees Richardson, Sorrentino , and Marquez were
among those who attended the October 13 meeting at the
off (as the testimony by Vath and Elliott on this occasion would
indicate)
RAYMOND BUICK, INC.
Peter Pan diner. All three testified that they did not hear
employee Anzalone say President Milligi offered Anzalone any
money. However, Richardson and Sorrentino testified that
Anzalone said Union Business Manager Tolkow offered him
"money" (according to Sorrentino), "$1,000" (according to
Richardson). In Richardson's case this was a repetition, he
testified, of something he had heard Anzalone say for the first
time on September 12. Employee Shea testified that while he
could not remember the occasion he had heard Anzalone say
that Bernie Tolkow offered him money, and that was the only
name mentioned
Employee Anzalone testified that President Milligi never
offered him any money, and denied that he ever mentioned or
implicated Milligi in respect of an offer of money. It is
apparent from the affidavit Anzalone gave the Board agent on
October 13, GC-26 (as well as the subsequent affidavits
GC-27, October 21, and GC-28, October 27), that he had
not told the Board agent that Milligi offered him a bribe, as
Lapple claimed Anzalone had said.
President Milligi testified that he did not talk to any of the
men named by employee Lapple to check whether they had
also heard Anzalone's alleged statement and he avoided talking
to any employee on the subject, including Anzalone to whom
he talked on the morning of October 19 about the Lorenzen
matter, supra Milligi testified that he was "999% convinced"
that Anzalone had made the libelous statement because he had
gained the impression from his own first interview with the
Board investigator on Friday, October 14, that Anzalone had
made such a statement about Union Business Manager Tolkow,
and he thought it not inconceivable that Anzalone had made
the same statement about him.32 He therefore decided,
testified Milligi, to confront Anzalone with the charge in a
shop meeting of all the employees where if Anzalone had made
the statement, he felt Anzalone "could hardly deny it among
his cohorts." He also felt, continued Milligi, that this was a
most opportune time to "clear the air" and to have "these
people realize that they had a good contract."
President Milligi called a meeting of the shop for 12 30 and
held it at 1 p.m. that day, October 19. He had called his
lawyer, checked out what he was going to say, and prepared
notes of what he would say. Milligi conceded, on cross-exami-
nation, that his notes may have indicated Anzalone was being
fired irrespective of which way Anzalone answered, but
claimed he never said everything that was in the notes. Milligi
also asserted that Anzalone was not "necessarily" going to be
discharged irrespective of whether he answered yes or no to
the charge of making the libelous statement, but then added he
was considering calling Anzalone a liar if he denied making the
statement. However, said Milligi, he didn't call Anzalone a liar
because at the meeting Anzalone "did not do anything," i.e
Anzalone, when confronted with the accusation in the open
32 Interestingly , President Milligi claimed to remember on October
22, only 3 days after talking with employee Lapple , as set out in the
excerpt from Milligi's affidavit , RE-9 dated October 22, 1966, that
employee Lapple had told him Anzalone said Tolkow as well as Milligi
had offered Anzalone $1 ,000, but Lapple 's written statement of
October 19 to Milligi and Lapple 's testimony omitted any reference to
Tolkow.
1313
meeting, told Milligi that he did not have to answer that
now. 3 3
Based upon the combined testimony of President Milligi,
Service Manager Cifelli, employee Anzalone, and a number of
other employees, the shop meeting appears to have been a
dramatic affair. Without attempting to recite its details it is
sufficient to observe that President Milligi rose and described
to the assembled employees "serious things" or an "unhealthy
situation" developing in the shop. He turned to employee
Richardson and asked if the employees who had met with him
yesterday would stand behind employee Anzalone, right or
wrong. Richardson replied, only if Anzalone is right Then
stating he wanted to show them the nature of the man they
chose to stand behind, President Millrgr said he had proof that
employee Anzalone said at a meeting at the Peter Pan diner the
other night that Milligi had offered him $1,000 to keep the
UAW out of the shop. Stating that he had never offered
Anzalone a bribe, Milligi turned to Anzalone and asked, did he
admit or deny saying this. Anzalone replied, he did not have to
answer that right now, whereupon Milligi said he took the
refusal to answer to be an "admission" (but Anzalone testified
he said "denial" and Milligi conceded, at one point, that he
may have said "denial"), and on the basis of this he was fired
Anzalone attempted to address the men, but Milligi told him
to get out and off the property or he'd call the police.
Anzalone left
President Milligi testified that he also referred at the meeting
to "comments . that Mr. Anzalone was running the shop,"
but conceded that he had not confronted Anzalone with such
statements before October 19. Significantly, President Millrgr
further testified that he would not have discharged Anzalone
on October 19 were it not for his discovery of Anzalone's
alleged statement of a bribe offer from Milligi.
On the following day, October 20, a group of the employees
went on strike and set up a picket line carrying signs that
Raymond Buick was unfair to members of UAW Local 259.
That day UAW Representative Velez and several employees
asked President Mlllrgi to reinstate employee Anzalone and let
the Board handle the situation but Milligi replied he did not
want Anzalone in the shop.
According to a stipulation of the parties the strike lasted
until November 23, 1966, a period of approximately 5 weeks.
According to employee Richardson, who said that on the
picket Ime he had been No. 2 man to Anzalone, the two men
quarreled and Richardson stopped "walking" before the others
did Richardson felt, he said, that the men were walking for
Anzalone and not accomplishing anything. Richardson sought
a meeting with President Millrgr and discussed return of the
men to work According to employee Richardson, President
Milligi was amenable to the return of all of the men except
Anzalone but insisted he would not bargain with the union.
33 On redirect examination , President Milligi changed his testimony
to say that if employee Anzalone had denied making the statement he
would not have called Anzalone a liar, and would have had no choice
but to investigate the matter further and clear up the doubts he would
then have had Taking into account all of the circumstances and events,
I am persuaded that President Milligi 's testimony on cross -examination
more accurately reflected his frame of mind and purpose
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter the strike ended and the men, other than Anzalone,
returned to work.34
Conclusion. In my view, the evidence is persuasive that
employee Anzalone was discharged because he persisted in
support of UAW Local 259 and because his presence in the
shop threatened the arrangement between Raymond Buick and
Amalgamated Local 355.
Between September 12, when employee Anzalone backed
off from his initial support of Amalgamated Local 355, until
approximately October 12 or 13, when Amalgamated's Busi-
ness Manager Tolkow left word for President Milligi that
Anzalone was through as shop steward, Milligi (and perhaps to
a lesser extent Tolkow) was left in an uneasy state of
uncertainty as to whether Anzalone would continue to resist
or swing back to aid Local 355. By October 14, when
President Milligi had not only the word from Union Business
Manager Tolkow that he had deposed Anzalone as steward, but
also his own interview with the investigating Board agent,
Milligi was no longer in doubt that Anzalone was opposing
Local 355. By no later than the night of October 18, when
employees Lapple, Blinovs, and Mercer came to him, President
Milligi knew for sure that employee Anzalone had mobilized a
substantial group of the employees, at a UAW meeting as
Lapple informed him, to provide testimony in support of
charges against the Respondent Union and Respondent Em-
ployer.
On October 17, employee Anzalone handed President Milligi
an opportunity to lay the foundation for claiming a nondis-
criminatory cause for discharge when Anzalone asked for time
off for a title closing Milligi seized upon the request with a
written warning about absences, unusual for the shop, served
with a flourish of witnesses, and refused to discuss it with
Anzalone, but backed down on October 18, in the face of a
protest of the employees, declaring he had no intention of
firing Anzalone. In effect, President Milligi either excused or
condoned the absence that occurred on October 18, Grand-
Central Chrysler, Inc, 155 NLRB 185, 187 (1965).
However, President Milligi followed up the next morning
with an even more unusual written warning, that charged
employee Anzalone with sloppy work and excessive roadtest-
Ing of a customer's car, again served with a flourish of
witnesses. Milligi admitted at the hearing that the charge of
poor work was not true and sought to excuse it as merely
identifying matter. The explanation suggests that the entire
matter was trumped up. Again, as in the matter of the absence,
Milligi did not purport to rely on this alleged cause as the
reason for the discharge, either at the time of the discharge or
at the hearing
Instead, President Milligi fastened upon the alleged libel of
himself by employee Anzalone reported by employee Lapple.
As President Mrlligi said, he'did not need any convincing of the
truth of the charge, he was 999 percent convinced when he
heard Lapple. Millrgi carefully avoided any inquiry of anyone,
though fully aware of whom he might inquire, and without
notice swiftly sprung the accusation and discharge of Anzalone
at a meeting of the employees called to witness the proceeding.
34 During the strike , according to a stipulation of the parties and the
testimony of employees Richardson and Anzalone and UAW Represen-
tative Velez, those who picketed received , commencing November 1,
1966, strike assistance benefits from UAW Local 259 of $30 per week
plus lunches Employee Richardson testified he received a lesser total
than the others because he quit the line beforehand Employee
As Milhgi indicated, Anzalone would have been fired whether
he admitted or denied the charge, and as Milhgi said, he
wanted this meeting for the purpose of clearing the air and
having his employees realize that they had a good contract.
Apparently, a large segment of the employees did not accept
the truth of the charge by Milligi against Anzalone and
regarded the discharge of Anzalone as aimed at his and their
continuing support of UAW Local 259. They went on strike
with signs saying so.
President Milligi's alleged belief that he had been libeled can
hardly be described as a belief held in good faith. By at least
October 17 he had ostensibly determined to fire Anzalone and
shopped for a reason or reasons to support the appearance of a
nondiscriminatory discharge, two of which he abandoned in
rapid succession. In this context his avoidance of any check on
the libel charge suggests that he was all too eager to use it
rather than risk finding out that it was not true. The cause for
the discharge of, and later failure to reinstate, employee
Anzalone was clearly discriminatorily motivated by his support
of UAW Local 259. The discharge was in violation of Section
8(a)(3) and (1) of the Act, and was not the result of any good
faith belief by President Milligi that he had been libeled
Even if President Millrgi had entertained a good faith belief
that he had been libeled by employee Anzalone, the discharge
was a violation of Section 8(a)(1) whatever the employer's
motive. President Milligi knew from his informant, employee
Lapple, that at the time the alleged libel was uttered Anzalone
and his fellow employees were at a "UAW meeting" and
meeting with a Board investigator to whom they supplied
testimony in support of the charges in this case. Employee
Anzalone was thus engaged in protected activity under the
Act, and as the evidence has established, was not guilty of the
libel The Supreme Court has held that "Section 8(a)(1) is
violated if an employee is discharged for misconduct arising
out of a protected activity, despite the employer's good faith,
when it is shown that the misconduct never occurred ... A
protected activity acquires a precarious status if innocent
employees can be discharged while engaging in it, even though
the employer acts in good faith " N.L R B. v. Burnup and
Sims, 379 U S 21, 23 (1964), applied in, Shattuck Denn
Mining Corp. v. N.L.R B., 362 F 2d 466, 471 (C.A. 9, 1966).
III THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of both Respondents set forth in section II,
above, occurring in connection with the operations of the
Respondent Employer described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor
disputes adversely affecting and burdening and obstructing the
free flow thereof.
IV THE REMEDY
Having found that the Respondent Employer has engaged in
unfair labor practices in violation of Section 8(a)(1), (2), and
Anzalone was among those who received the $30 per week from
November 1 to 23 and , following the end of the strike on that day
without his being reinstated , received until April 14, 1967, $20 per
week from UAW Local 259 for "part time organizational services
Anzalone described this as principally picketing
RAYMOND BUICK, INC.
(3) of the Act, and that the Respondent Union has engaged in
unfair labor practices in violation of Section 8(b)(1)(A) and
(2) of the Act, I shall recommend that they cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act
Concerning Both Respondents Included are recommenda-
tions directed to the Respondent Employer, because of its
coercion of employees and unlawful assistance to Respondent
Union, for disaffirmance of the contract with Respondent
Union, withdrawal and withholding of recognition of Respond-
ent Union as collective bargaining representative of the
employees unless and until the union shall be certified by the
Board, terminating effectiveness of the employee checkoff
authorizations, and refraining from giving other assistance to
the Respondent Union.
Correlatively, the recommendations directed to the Re-
spondent Union, because of its utilization of the unlawful acts
and assistance, provide for its ceasing to act as collective
bargaining representative for Respondent Employer's employ-
ees unless and until certified by the Board, and from giving
effect to the contract with Respondent Employer.
Because of the coercion involved it is recommended that, as
a matter of their joint and several responsibility, both
Respondents be ordered to reimburse the employees, including
former employees, of Respondent Employer for all initiation
fees, dues, and other moneys unlawfully collected from them
pursuant to the nullified contract and checkoff authorizations
NL.R B. v. Revere Metal Art Co, supra, 280 F.2d 96, 100,
(C.A 2, 1960). In accordance with the policy of the Board,
there shall be an allowance of interest at the rate of 6 percent
per annum added to the sum due each employee or former
employee, computed on the basis of separate calendar quarters
with the interest to begin running as of the last day of the
calendar quarter for initiation fees, dues, and other moneys
exacted or due in that calendar quarter, until compliance with
the reimbursement order is achieved. Salmirs Oil Company,
supra, 139 NLRB 25, 27.35
Lastly, there are recommendations for the posting and
mailing of notices by both Respondents.
Concerning Respondent Employer Specially. Because Re-
spondent Employer unlawfully discharged employee Michael
Anzalone, it will be recommended that the Respondent
Employer offer him immediate and full reinstatement to his
former position or to a substantially equivalent position,
without prejudice to his seniority or other rights and privileges
It will be recommended that the Respondent Employer make
him whole for any loss of earnings he may have suffered as a
result of the unlawful discharge by payment of a sum of
money equal to that which he normally would have earned as
wages from October 19, 1966, the date of discharge, to the
date of the Respondent Employer's offer of reinstatement, less
35 As in the case of an order for reinstatement and backpay, the
determination of the amounts due will be the subject of further
administrative action , N.L R B. v Local 776, IATSE [Film Editors],
303 F 2d 513, 521 (C A 9, 1962).
36 In addition , Board orders have been entered by consent, and
enforced by decrees of the United States Court of Appeals for the
Second Circuit, in two other similar cases in which Amalgamated Local
355 was a respondent These are, Richmond Rambler Sales, Inc, and
Amalgamated Local Union 355, Cases 29-CA-223 and 29-CB-70,
and Command Lincoln Mercury Corp, and Amalgamated Local Union
355, Cases 29-CA-360 and 29-CB-134. In both cases the complaints
charged violations of Section 8(a)(1), (2 ), and (3) and 8(b)(1)(A) and
1315
net earnings, if any, during this period. The backpay shall be
computed on a quarterly basis as prescribed by the Board in F.
W. Woolworth Company, 90 NLRB 289 (1950), approved in
NL R.B. v Seven-Up Bottling Company, 344 U.S 344 (1953),
and shall include interest at 6 percent per annum as provided
by the Board in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), approved in Philip Carey Manufacturing Company v.
N.L.R.B., 331 F 2d 720 (C.A. 6, 1964), cert denied 379 U.S.
888, and cases cited.
Because the Respondent Employer by its conduct violated
fundamental employee rights guaranteed by Section 7 of the
Act, and because there appears from the manner of the
commission of this conduct a disposition to commit other
unfair labor practices, it will be recommended that the
Respondent Employer cease and desist from in any manner
infringing upon the rights guaranteed employees by Section 7
of the Act N.L R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536
(C.A. 4, 1941).
Concerning Respondent Union Specially. Respondent
Union, Amalgamated Local 355, has a history of improper
activities, similar to the misconduct here, in utilizing the
assistance and coercion of other employers to deprive their
employees of their freedom of choice of representatives for
collective bargaining The Board's reports indicate like miscon-
duct in Fiore Brothers Oil Co., Inc, 137 NLRB 191 (1962),
Salmirs Oil Company, 139 NLRB 25 (1962), Malcolm Konner
Chevrolet, Inc., 141 NLRB 541 (1963), in each of which cases
Amalgamated Local 355 was a respondent found guilty of
violations of Section 8(b)(1)(A) and (2), and in Lundy Mfg.
Corp., 125 NLRB 1188, 1201 (1959), supplemental decision
136 NLRB 1230 (1962), where Amalgamated Local 355 was
not a respondent but party to the contract found to be the
assisted union 36
In Salmirs Oil Company, supra, the Board, taking into
account the then existing history of Amalgamated Local 355's
improper activities issued a broad order against the union
designed to protect the employees of other employers, in
addition to the employees of the employer involved in that
case, against restraint or coercion by Local 355 in the excercise
of the employees' rights to self-organization and to form, loin,
or assist other labor organizations, 139 NLRB at 26, 29. Based
upon the incremental history, I think that, at the very least, a
repetition of this broad order is warranted here, and I will so
recommend
However, the total history indicates that even this broad
order, together with the orders before and since, have not had
the salutary effect normally to be expected of Board orders.
For approximately the past rune years Amalgamated Local 355
has persisted in a course of conduct in violation of the
principle of employee self-determination, which is at the heart
of the Labor Management Relations Act. As the Board stated
(2) of the Act In the Richmond Rambler case the Board's order was
issued on December 14, 1965, and the order was enforced by the
Second Circuit on January 11, 1966 In the Command Lincoln case the
Board 's order was issued on March 7 , 1966, and the order was enforced
by the Second Circuit on March 15, 1966 Amalgamated Local 355 has
waived all further rights to contest the consent decrees In both cases
the Board ordered Amalgamated Local 355 to cease and desist from (1)
acting as bargaining representative unless certified by the Board (2)
giving effect to its bargaining agreement with the employer ( 3) causing
the employer or any other employer to discriminate in employment in
violation of Section 8(a)(3) of the Act (4) restraining employees of the
employer or any other employer from joining other labor organizations
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in National Federation of Labor, Inc, 160 NLRB 961, 964
(1966), involving repeated violation of Section 8(b)(1)(A),
"the contumacy reflected in its [the union's] repeated and
persistent violations of employee rights will not be remedied
fully by an order coextensive with that issued in the earlier
proceeding . a broader order must be fashioned if the
purposes of the Act are to be effectuated."
It seems to me that Respondent has been in a position to
commit the repeated violations because it has been free, as
unions normally are and should be, to obtain employee
representation authorizations and employer recognition as
bargaining representative without the supervision of a Board
election. This is a privilege with which Amalgamated Local 355
apparently cannot be trusted, as the continued abuse by
collusive arrangements utilizing coerced majorities would
indicate. The privilege exists for the benefit of employees to
enable them speedily yet democratically to obtain representa-
tion and collective bargaining. It ought not be entrusted to a
union that twists the privilege into a means for subverting
employee self-determination.
I believe that an order which, for a period of time in the
future, will limit Amalgamated Local 355 in becoming the
collective bargaining representative of the employees of any
employer, whom the union does not presently validly repre-
sent, to only those cases where the union achieves representa-
tive status in a Board supervised election, would have the
needed remedial effect of preventing future abuses by this
union. The remedy has been included piecemeal for each of
the companies involved in the previous Board orders, but I
think the time has come to put the temptation as well as the
opportunity to achieve additional collusive recognitions be-
yond the reach that existing orders still make possible for
Local 355. In my view, the recommended remedy should
prove to be self-executing, since the union would scarcely find
profit in pursuing unsupervised recognitions, and executing
contracts, that were null and void ab inltio.
As indicated, the purpose of the recommended order is not
punishment but prevention of abuse of privilege. The union
continues to be a labor organization with the privileges of
achieving representative status with employers, whose employ-
ees it does not represent, under Section 9(c) of the Act I
propose to frame the limitation of the recommended order so
that after it has been in effect for five years, Amalgamated
Local 355 may apply to the Board for its relaxation upon a
showing to the Board's satisfaction of good conduct in the
intervening years in observing Board orders and the provisions
of the Act that would make the limitation no longer necessary.
Precedent for Board orders against unions directed to
protecting employees of "any other employer" than the
employer directly involved in the case, can be found in such
8(b)(1)(A) and (2) cases as NL.R.B. v. Newspaper and Mail
Deliverers' Union, 246 F.2d 62, 64, 66 (C A. 3, 1957), resting
upon the Board's "past experience with the Union", N.L.R B
v. Local 542, Int'l Union of Operating Engineers, 329 F.2d
512, 515-516 (C.A. 3, 1964), the "broad order" appearing
37 Note also that the Board order , entered by stipulation of the
parties in the 8 (b)(10)(A) and (2 ) case, Combined Century Theatres,
Inc, v N L R B, 278 F 2d 306 (C A. 2, 1960), which included
prohibitions of unlawful conduct directed at employers and unions
other than those as to which evidence of violations was introduced in
the case, was later enforced by the Second Circuit over objection that
the Supreme Court decision , rendered the same day in Communications
necessary because of the union's "demonstrated disregard of
the Act by a record of similar violations in the past," citing
two earlier adjudicated violations involving other employees
and employers, and the 8(b)(4)(A) and (B) case Truck Drivers
and Helpers Local Union No 728 v. N.L.R.B , 332 F.2d 693,
697 (C.A. 5, 1964), protecting against secondary boycott
activity "any other person" engaged in commerce where the
Board had other cases against the union that demonstrated " a
proclivity to violate the act by secondary boycott activity
against persons with whom it develops disputes." And compare
the more drastic remedies invoked in the 8(b)(1)(A) case,
involving a company-dominated union, National Federation of
Labor, Inc., supra, 160 NLRB 961, where "repeated and
persistent" violations were deemed to require "a broader
order. "3 7
Upon the basis of the foregoing facts and upon the entire
record in the case, I make the following.
CONCLUSIONS OF LAW
1 Raymond Buick, the Respondent Employer, is an em-
ployer within the meaning of Section 2(2) of the Act and is
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act. Amalgamated Local 355, the Respondent
Union, and UAW Local 259, a charging party, are labor
organizations within the meaning of Section 2(5) of the Act.
2. By soliciting employee authorizations for Amalgamated
Local 355, by giving it exclusive representation rights and a
contract when it did not represent an uncoerced majority of
the employees, by disregarding the real question regarding
representation raised by UAW Local 259 and favoring Amalga-
mated Local 355 with a contract, and by including in the
contract and maintaining conditions for employee membership
in Amalgamated Local 355 and payment of union dues and
fees, Raymond Buick has engaged in unfair labor practices in
violation of Section 8(a)(1), (2), and (3) of the Act. By
utilizing such employer assistance in obtaining recognition and
a contract and by including in the contract and maintaining
conditions for employee membership in the union and
payment of union dues and fees, Amalgamated Local 355 has
engaged in unfair labor practices in violation of Section
8(b)(1)(A) and (2) of the Act.
3 By interfering with, restraining, and coercing employees
in the exercise of their rights under Section 7 of the Act, by
discriminatorily discharging one of the employees in order to
encourage membership in Amalgamated Local 355 and dis-
courage membership in UAW Local 259, and by unlawfully
discharging said employee for an alleged wrong he did not
commit but which supposedly occurred at a time when the
employer knew the employee was engaged in protected
activity, Raymond Buick has further violated Section 8(a)(1)
and (3) of the Act
4. By restraining and coercing employees in the exercise of
their rights under Section 7 of the Act, and by interfering with
Board process, in attempting with an offer of money to obtain
Workers v N.L R.B, 362 U S. 479 (1960), outlawed such broad orders
when it struck down an order, correcting an 8(b)(1)(A) violation, to
protect "any other employer " The Second Circuit pointed out that the
Communications Workers opinion did not express "any jurisdictional
limitation upon the Board's power," but rather rested upon an absence
of evidence to justify the broad order, 46 LRRM 2858, 2859 (C.A 2,
1960)
RAYMOND BUICK, INC.
and alter testimony of an employee to be given to the Board,
Amalgamated Local 355 has further violated Section
8(b)(1 )(A) of the Act.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The claimed refusal of Raymond Buick to bargain
collectively with UAW Local 259 as the representative of the
employees in violation of Section 8(a)(5) of the Act, as alleged
in paragraph 25 of the complaint, should be dismissed on the
ground that, at the time of its demands for recognition and
bargaining , UAW Local 259 did not represent a majority of the
employees constituting the unit.
RECOMMENDED ORDER
Upon the basis of the foregoing facts and conclusions of
law, and upon the entire record in this proceeding, I
recommend that
A. Respondent Employer, Raymond Buick, Inc., its offi-
cers, agents, successors, and assigns, shall-
1. Cease and desist from
(a) Recognizing Respondent Union, Amalgamated Local
Union 355, as the representative of any of its employees for the
purpose of dealing with Raymond Buick concerning griev-
ances, labor disputes, wages, rates of pay, hours of employ-
ment, or other terms and conditions of employment.
(b) Giving effect to the collective bargaining agreement
with Amalgamated Local 355, dated September 12, 1966, or
any modification, extension, or renewal thereof; provided,
however, that nothing in this decision and order shall require
Raymond Buick to vary or abandon any wage or salary, hours,
seniority, or other substantive feature of its relations with its
employees, which Raymond Buick has established in the
performance of the agreement, or to prejudice the assertion by
employees of any rights they may have under the agreement.
(c) Giving effect to the checkoff provisions of authorization
cards executed by its employees in favor of Amalgamated
Local 355.
(d) Giving any other assistance or support to Amalgamated
Local 355.
(e) Interfering with, restraining, or coercing its employees
in their union activities, or concerted activities for the purpose
of collective bargaining, by discharge or other reprisal, or by
promise of benefits.
(f) In any other manner interfering with, restraining, or
coercing employees in,the exercise of their rights to self-organi-
zation, to join or assist UAW Local 259 or to form, join, or
assist any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from engaging in
any such activity, except to the extent that such rights may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
38 In the event that this Recommended Order is adopted by the
Board, the words " a Decision and Order " shall be subsituted for the
words "The Recommended Order of a Trial Examiner " in the notice In
the further event that the Board 's Order is enforced in a United States
1317
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act
(a) Withdraw and withhold all recognition from Amalga-
mated Local 355 as the collective bargaining representative of
any of its employees for the purpose of dealing with Raymond
Buick concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other terms or conditions of
employment, unless and until the Board shall certify Amalga-
mated Local 355 as such representative.
(b) Reimburse the present and former employees for all
initiation fees, dues, and other moneys they have been
required to pay Amalgamated Local 355 by reason of
Raymond Buick's enforcement of its agreement of September
12, 1966, with Amalgamated Local 355 or of the checkoff
authorizations executed by employees and former employees
in favor of Amalgamated Local 355. The reimbursement shall
be made as provided in the section of this decision entitled
"The Remedy," and Raymond Buick shall be jointly and
severally liable therefor with Amalgamated Local 355
(c) Offer to employee Michael Anzalone immediate and full
reinstatement to his former position or to a substantially
equivalent position without prejudice to his seniority or other
rights and privileges, and make him whole in the manner set
forth in the section of this decision entitled "The Remedy,"
for any loss of earnings he may have suffered as a result of his
unlawful discharge.
(d) Notify employee Michael Anzalone, if serving in the
Armed Forces of the United States, of his right to full
reinstatement upon application in accordance with the Selec-
tive Service Act, and the Universal Military Training and
Service Act, as amended, after discharge from the Armed
Forces
(e) Preserve and, upon request, make available to the Board
and its agents for examination and copying all records
concerning payroll, personnel, social security payments, time-
cards, disbursements, and all other records necessary to
ascertain the backpay and the reimbursement of union fees
and dues owed under the terms of this order.
(f) Post in the Raymond Buick service shop at Bayshore,
Long Island, New York, copies of the notice attached hereto
marked "Appendix A.s38 Immediately upon receipt of the
copies of said notice, on forms provided by the Regional
Director for Region 29 (Brooklyn, New York), Raymond
Buick shall cause the copies to be signed by one of its
authorized representatives, to be posted, and to be maintained
for a period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Raymond Buick to insure that the posted notices are not
altered, defaced, or covered by any other material
(g) Mail or deliver forthwith to the Regional Director
additional signed copies of the notice Appendix A, on forms
provided by the Regional Director and signed on behalf of
Raymond Buick as set out in the preceding paragraph A, 2, (f),
for posting by Amalgamated Local 355 at its business offices
Court of Appeals , the words "a Decree of the United States Court of
Appeals enforcing an Order" shall be substituted for the words "a
Decision and Order."
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and meeting halls in conspicuous places, including places where
notices to members are customarily posted.
(h) Post and maintain at the same place and under the same
conditions provided in paragraph A,2,(f) above, as soon as
forwarded by the Regional Director, copies of the notice
attached hereto marked Appendix B 39
(i) Notify the Regional Director for Region 29, in writing,
within 20 days from the date of the receipt of this decision,
what steps Raymond Buick has taken to comply therewith 40
B. Respondent Union, Amalgamated Local Union 355, its
officers, agents, representatives, successors, and assigns, shall
I Cease and desist from
(a) Acting as the collective bargaining representative of any
of the employees of Respondent Employer, Raymond Buick,
unless and until the Board shall certify it as such representa-
tive
(b) Acting as the collective bargaining representative of any
of the employees of any other employer whom it does not
presently validly represent, unless and until the Board shall
certify it as such representative, provided that Amalgamated
Local 355 may apply to the Board for relief from this
limitation at any time after it has been in effect for 5 years,
upon a showing to the Board's satisfaction by Amalgamated
Local 355 of good conduct in the intervening years in
observing Board orders and the provisions of the Act that
would make the limitation no longer necessary.
(c) Giving effect to the collective bargaining agreement with
Raymond Buick, dated September 12, 1966, or any modifica-
tion, extension, or renewal thereof
(d) Restraining or coercing employees in the exercise of
their rights under Section 7 of the Act, and interfering with
Board process, by attempting, with or without an offer of
money, to obtain and alter the testimony of an employee to be
given to the Board
(e) In any manner restraining or coercing employees or
prospective employees of Raymond Buick or any other
employer in the exercise of their right to self-organization, to
join or assist UAW Local 259 or to form, join, or assist any
other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from engaging in any
such activity, except to the extent that such rights may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8(a)(3) of the Act
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act
(a) Reimburse the present and former employees of
Raymond Buick for all initiation fees, dues and other moneys
unlawfully exacted from them by reason of Amalgamated
Local 355's agreement with Raymond Buick, dated September
12, 1966, or of the checkoff authorizations executed by
employees and former employees in favor of Amalgamated
Local 355. The reimbursement shall be made as provided in
the section of this decision entitled "The Remedy," and
Amalgamated Local 355 shall be jointly and severally liable
therefor with Raymond Buick
(b) Preserve and, upon request, make available to the Board
and its agents, for examination and copying, all records
necessary to ascertain what is owed in reimbursement of union
fees and dues under the terms of this order.
(c) Post in Amalgamated Local 355's business offices and
meeting halls copies of the notice attached hereto marked
"Appendix B "41 Immediately upon receipt of the copies of
said notice, on forms provided by the Regional Director for
29, (Brooklyn, New York), Amalgamated Local 355 shall
cause the copies to be signed by one of its authorized
representatives, to be posted, and to be maintained for a
period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to members are customarily
posted Reasonable steps shall be taken by Amalgamated Local
355 to insure that said notices are not altered, defaced, or
covered by any other material
(d) Mail or deliver forthwith to the Regional Director
additional signed copies of the notice Appendix B, on forms to
be provided by the Regional Director and signed on behalf of
Amalgamated Local 355 as set out in the preceding paragraph
B 2(c), for posting by Raymond Buick at its service shop in
Bayshore, Long Island, New York, in conspicuous places,
including all places where notices to employees are customarily
posted
(e) Post and maintain at the same places and under the
same conditions provided in paragraph B 2(c) above, as soon as
forwarded by the Regional Director, copies of the notice
attached hereto marked Appendix A 42
(f) Notify the Regional Director for Region 29, in writing,
within 20 days from the date of the receipt of this decision,
what steps Amalgamated Local 355 has taken to comply
therewith 4 3
C Paragraph 25 of the complaint, alleging a refusal by
Respondent Employer, Raymond Buick, to bargain collective-
ly with UAW Local 259 in violation of Section 8(a)(5) of the
Act, should be dismissed
39 See f 38, supra
40 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to provide notification to said
Regional Director " in writing, within 10 days from the date of this
Order, what steps Raymond Buick has taken to comply therewith
41 See f 38, supra
42 See f 38,supra
43 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to provide notification to said
Regional Director " in writing, within 10 days from the date of this
Order, what steps Amalgamated Local 355 has taken to comply
therewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES AND
TO ALL MEMBERS OF AMALGAMATED LOCAL UNION 355
Pursuant to the Recommended Order of a Trial Examiner of
the National Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as amended,
we, Raymond Buick, Inc , hereby notify you that.
WE WILL withdraw and withhold all recognition from
Amalgamated Local Union 355 as collective bargaining
representative of any of our employees, unless and until
Local 355 is so certified by the National Labor Relations
Board
WE WILL NOT give effect to the collective bargaining
agreement signed with Local 355, dated September 12,
1966, or to any modification, extension, or renewal
thereof
WE WILL NOT give effect to any checkoff of dues or
fees for Local 355.
RAYMOND BUICK, INC.
WE WILL NOT give any other assistance or support to
Local 355.
WE WILL reimburse our present and former employees
for all initiation fees, dues, and other moneys exacted from
them under the agreement of September 12, 1966, with
Local 355 or under any checkoff authorizations executed
by them in favor of Local 355, plus interest thereon at 6
percent, being jointly and severally liable therefor with
Local 355
WE WILL offer to employee Michael Anzalone full
reinstatement to his old job, and WE WILL pay him for any
loss of earnings that he suffered because we fired him If
employee Anzalone is in the Armed Forces of the United
States we will notify him of his right to full reinstatement
upon application after discharge from the Armed Forces
WE WILL NOT discharge you or engage in other repris-
als against you because of your support for Local 259,
United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, or any other labor organi-
zation, and WE WILL NOT promise you benefits to support
any labor organization or to prefer one labor organization
over another
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of their
rights to self-organization, to join or assist UAW Local 259
or to form, join, or assist any other labor organization, to
bargain collectively concerning terms or conditions of
employment through representatives of their own choosing,
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from engaging in any such activity, except as
these rights might be affected by a contract validly made
under the National Labor Relations Act with a labor
organization, whereby membership in the labor organiza-
tion is a condition of employment after the 30th day
following the date of the contract or the beginning of the
individual's employment, whichever is later.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members in any labor
organization
RAYMOND BUICK, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If persons have any questions concerning this notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, Fourth Floor, 16 Court
Street, Brooklyn, New York 11201, Telephone 596-5386.
1319
we, Amalgamated Local Union No 355, hereby notify you
that
W E WILL NOT act as the collective bargaining represen-
tative of the employees of Raymond Buick, Inc., unless and
until we have been certified by the National Labor
Relations Board as such representative.
WE WILL NOT act as the collective bargaining represen-
tative of the employees of any other employer whom we do
not now validly represent unless and until we have been
certified by the National Labor Relations Board as such
representative. This limitation will be in effect for at least
five years but may be relaxed by the Board after five years
if we demonstrate to the Board's satisfaction good conduct
in the intervening years in observing Board orders and the
provisions of the National Labor Relations Act that would
make the limitation no longer necessary.
WE WILL NOT give effect to our collective bargaining
agreement with Raymond Buick, dated September 12,
1966, or any modification, extension, or renewal thereof.
WE WILL reimburse the present and former employees
of Raymond Buick for all initiation fees, dues, and other
moneys exacted from them under the agreement of
September 12, 1966, with Raymond Buick or under any
checkoff authorizations they have executed in our favor,
plus interest thereon at 6 percent, being jointly and
severally liable therefor with Raymond Buick
WE WILL NOT restrain or coerce employees in the
exercise of their rights under Section 7 of the National
Labor Relations Act, or interfere with the process of the
National Labor Relations Board, by attempting, with or
without an offer of money, to obtain and alter the
testimony of any employee to be given to the Board
WE WILL NOT in any other manner restrain or coerce
employees of Raymond Buick or of any other employer in
the exercise of their rights to self-organization, to join or
assist UAW Local 259 or to form, join, or assist any other
labor organization, to bargain collectively through represen-
tatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from engaging in any
such activity, except as these rights might be affected by a
contract validly made under the National Labor Relations
Act with a labor organization, whereby membership in the
labor organization is a condition of employment after the
30th day following the date of the contract or the
beginning of the individual's employment, whichever is
later.
Dated
APPENDIX B
NOTICE TO ALL MEMBERS OF AMALGAMATED
LOCAL UNION 355 AND TO THE EMPLOYEES
OF RAYMOND BUICK, INC
Pursuant to the Recommended Order of a Trial Examiner of
the National Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as amended,
AMALGAMATED LOCAL UNION 355
(Employer)
By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If persons have any questions concerning this notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, Fourth Floor, 16 Court
Street, Brooklyn, New York 11201, Telephone 596-5386.