Sahara Datsun, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1986

278 N.L.R.B. 1044 (N.L.R.B. 1986)

1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sahara Datsun , Inc. and The Liberated Workers
Welfare . Cases 31 -CA-14493, 31-CA- 14519,
31,-CA-14559, 31-CA-14661, 31-CA- 14668,
and 31 -RC-5761
20 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 5 August 1985 Administrative Law Judge
Gerald A. Wacknov issued the attached decision.
The Respondent-Employer and the General Coun-
sel each filed exceptions and a supporting brief, the
General Counsel filed an answering brief to the Re-
spondent's exceptions, and the Charging Party-Pe-
titioner filed exceptions and a brief supporting its
exceptions and answering certain of the Respond-
ent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
i The Respondent and the Charging Party have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir. 1951) We have carefully examined the record and
find no basis for reversing the findings.
In sec III,C,1, par 1 of his decision, the judge inadvertently stated
that employee Vern Caldwell overheard General Sales Manager Rod
Harvey's threat to employee Hal Berger that employees involved with
the Union would be blackballed from the car business in Las Vegas. Both
the record and the judge's findings of fact reveal that employee Steve
Geller overheard Harvey's threat We correct the error.
2 In sec III,C,1, par 7 of his decision , the judge found that the Re-
spondent's discharge of Vincent Venckus on 13 September 1984 violated
Sec 8(a)(1) of the Act The General Counsel excepts to the judge 's fail-
ure to find that the discharge of Venckus on 13 September also violated
Sec 8(a)(3) We find merit in this exception The Respondent clearly dis-
charged Venckus on 13 September in response to Venckus' union activi-
ties, and the complaint alleges that his discharge violated Sec. 8(a)(3) We
therefore modify the judge's conclusions to correct the apparently inad-
vertent omission and find that the discharge of Venckus on 13 September
1984 violated both Sec 8(a)(1) and (3), as alleged.
In sec. III,C,2, par 1 of his decision , the judge recommended sustain-
ing the challenge to the ballot of Finance and Insurance Manager Lee
Peraldo, finding that Peraldo should be excluded from the unit as a su-
pervisor or managerial employee In support of this finding, the judge
cited Ed Chandler Ford, Inc, 254 NLRB 851 (1981 ), and Larry Faul Olds-
mobile Co, 262 NLRB 370 (1982) In Ed Chandler Ford, the Board ex-
cluded finance and insurance managers from the unit of auto salespersons
on community-of-interest grounds, and in Larry Faul Oldsmobile, the
Board included finance and insurance salespersons in a unit of auto sales-
men on community-of-interest grounds In neither case, however, did any
of the parties allege that the finance and insurance managers or salesper-
sons were either supervisors or managerial employees The record reveals
no evidence that Peraldo has the authority to exercise any supervisory
duties within the meaning of Sec 2(11) of the Act We agree with the
judge's finding that Peraldo is a manager , however He attends manage-
ment meetings and, as the judge found, he has substantial discretion in
deciding whether customers' applications for credit will be submitted to
financial institutions for approval In effect, by selling financing to a cus-
tomer through a financial institution, the Respondent extends its own
conclusions2 as modified, and to adopt the recom-
mended Order as modified.3
credit to the customer Because Peraldo has wide latitude in deciding
whether the Respondent's credit will be extended to the customer in this
manner, he is a managerial employee. See Simplex Industries, 243 NLRB
111,, 112 (1979)
Because we agree that Peraldo is a manager, we find no merit in the
Respondent's exception to the judge's findmg that the Respondent violat-
ed Sec 8(a)(1) when Peraldo stated to employee Vern Caldwell that ap-
proval of a customer's credit application (which was within Peraldo's au-
thority) would depend on how Caldwell intended to vote in the election
In his Conclusions of Law 3 and 4, the judge inadvertently cited Sec
7(a) of the Act, instead of Sec 9(a) We correct the error
3 In par 2(d) of his recommended Order, the judge failed to provide
for interest on the reimbursement to employees for earnings they may
have lost as a result of the discontinuation of variable weekly bonuses In
addition, in par. 2(a), the judge provided for backpay for discrimmatee
Mark Darata in the manner set forth in the judge's recommended
remedy, i.e., from the date of Darata's termination until 25 January 1985
We find infra that Darata forfeited his entitlement to reinstatement on 19
October 1984. Therefore, he is only entitled to backpay for the period
commencing with his termination until 19 October 1984 Accordingly,
we shall amend the remedy, modify pars. 2(a) and (d) of the Order ac-
cordingly, and issue a new notice to employees
Based on her concurring opinion in Regency Manor Nursing Home, 275
NLRB 1261 (1985), Member Dennis finds the Respondent's unfair labor
practices sufficiently serious and pervasive to warrant issuing a bargain-
ing order absent mitigating circumstances The Respondent committed at
least nine "hallmark" violations, i.e., violations of the type that the Board
and the courts have regularly regarded as highly coercive. See NLRB Y.
Jamaica Towing Inc., 632 F.2d 208, 212-213 (2d Cir 1980). The Re-
spondent fired the two principal union adherents on the day the petition
for representation was received at its facility. On the same day, after sub-
sequently recalling one of the discharged employees, the Respondent
threatened to discharge the employee if it learned that the employee
knew of other employees' union activities Twice the Respondent threat-
ened employees that they would be blackballed from the car business in
Las Vegas, and one of these threats was accompanied by threats of dis-
charge It made two discriminatory, unilateral changes in terms and con-
ditions of employment, by discontinuing variable weekly bonuses for a 3-
week period and by instituting a new system of written warnings for
rules infractions. One of these changes was made within a week after the
representation petition was filed, and the other was made soon after
unfair labor practices were filed against the Respondent. In addition, fol-
lowing the election, the Respondent told an employee that it did not
intend to bargain with the Union if the Union won,-and the employees
could simply all go on strike
Member Dennis finds these unfair labor practices are likely to preclude
a fair rerun election for several reasons First, the violations were com-
mitted by the Respondent's top management officials: General Sales Man-
ager Rod Harvey, Sales Manager Mark Evans, and Sales Manager Jim
Sears. The Respondent's unilateral changes affected at least three-fourths
of the 14 employees who were in the unit at the time the changes went
into effect. The record contains 63 written warnings issued to 11 employ-
ees, and all employees in the unit were potentially affected by the discon-
tinuation of the variable weekly bonuses. The discharges, threats of dis-
charge, threats of blackballing, and the threat that the Respondent would
not bargain in good faith affected at least six employees, almost one-half
of the unit
Finally, Member Dennis finds no postviolation developments mitigate
the necessity for a bargaining order. The record shows the unit almost
completely unaffected by turnover; the only evidence is White terminat-
ing his employment in March 1985 There have been no changes in man-
agement, and the passage of time since the Respondent committed the
unfair labor practices is insufficient to mitigate the need for a bargaining
order
Member Dennis finds no merit in the Respondent's contention that
postviolation misconduct by employees Venckus and Darata, the princi-
pal union adherents, mitigates the necessity for a bargaining order on the
alleged grounds that their misconduct is the "real" reason that a fair
rerun election could not be held.
278 NLRB No. 148
SAHARA DATSUN 1045
The judge found that General Manager Rod
Harvey was fully aware of employee Mark Dara-
ta's union activities before Darata 's discharge on 13
September 1984, and that therefore the Respondent
discharged Darata on that date in violation of Sec-
tion 8(a)(3) and ( 1) of the Act. We affirm these
findings . The judge also found that Darata is not
entitled to reinstatement' because of published re-
marks Darata made in a newsletter mailed to em-
ployees about 25 January 1985 , accusing the Re-
spondent's owners of involvement in prostitution
and the use and sale of cocaine . Accordingly, the
judge recommended that the Respondent make
Darata whole for any loss of earnings he may have
suffered from the date of his discharge until 25 Jan-
uary 1985 , the date on which the judge found that
Darata forfeited his entitlement to reinstatement.
The Respondent excepts to the judge 's failure to
find that Darata first forfeited his entitlement to re-
instatement on 19 October 1984, when he informed
a bank through which the Respondent obtains fi-
nancing for its customers that the Respondent's
managers were allegedly submitting falsified cus-
tomer credit applications to the bank . Accordingly,
the Respondent asserts that Darata should be made
whole only for the period from 13 September 1984
until 19 October 1984 , and that the challenge to
Darata's ballot in the 15 November 1984 election
should be sustained . We find merit in these excep-
tions as discussed below.
The judge further found that Darata is not enti-
tled to deal with the Respondent as a union repre-
sentative because of the published accusations
Darata made in the newsletter circulated to em-
ployees on 25 January 1985. We affirm the judge's
finding that Darata is not entitled to act as a union
representative . As discussed below, however, we
rely on both the accusations Darata made to the
Respondent 's bank on 19 October 1984 and the re-
marks made in the newsletter in January 1985 on
the grounds that both incidents created such an at-
mosphere of ill will between Darata and the Re-
spondent that good -faith collective bargaining
would be impossible if the Respondent were re-
quired to deal with Darata as the union representa-
tive.
1. On 19 October 1984, after the Respondent had
discharged him, Mark Darata approached a loan
officer - at First International Bank of Nevada,
which grants financing to the Respondent's cus-
tomers based on credit applications the Respondent
submits after the Respondent approves them.4 The
4 Because the judge did not rely on this incident to support his findings
concerning Darata 's reinstatement and bargaining rights , he did not set
forth the facts in detail in his decision . The facts, as recited herein, are
taken from the uncontradicted testimony of Albert C. Clapton, the loan
Respondent approves these applications based on
information its customers submit , including "W-2"
tax forms which set forth the customer 's income.
The loan officer asked Darata if he was an employ-
ee of the Respondent , and Darata replied that he
was not , but that he soon would be. According to
the loan officer's testimony , Darata asked the loan
officer if he was aware that the Respondent was
"falsifying the applications that the customers fill
in," and specifically wanted to know if he was
aware that the Respondent was "falsifying the
income that the customers show on there, and, spe-
cifically, the W-2 forms that are sent to us [the
bank]."
Darata told the loan officer that he was report-
ing this information because such falsification of
loan applications could potentially affect the
income of the Respondent 's salesmen, as it could
affect the bank's future relationship with the Re-
spondent if the bank found out about it. Darata
also said that Finance and Insurance Manager Lee
Peraldo was one of the managers at the Respond-
ent's facility who was altering the applications. As
he was leaving , Darata gave the loan officer his
business card , which identifies Darata as a union
officer.
After Darata left the bank, the loan officer tele-
phoned Peraldo at the Respondent 's facility and in-
formed Peraldo of the substance of the loan offi-
cer's conversation with Darata . The loan officer
testified that during this telephone conversation
Peraldo denied Darata's accusations . The loan offi-
cer has been responsible for the Respondent's ac-
count for at least 3 years , and he testified that
during that time nothing came to his attention that
would lend support to Darata's accusations.
In NLRB v. Electrical Workers IBEW Local 1229
(Jefferson Standard Broadcasting), 346 U.S. 464
(1953), the Supreme Court held that even if em-
ployees are arguably engaged in concerted activity,
if the nature of their actions involves a malicious'
attack on the product or reputation of their em-
ployer, their activity loses the protection of Section
7 of the Act and their subsequent discharge is for
"cause" within the meaning of Section 10(c).5 In
Allied Aviation Service Co. of New Jersey,6 the
Board held that communications by employees to
third parties who do business with the employer do
not lose the Act's protection as long as the commu-
officer at First International Bank responsible for the Respondent's ac-
counts, who is the bank employee to whom Darata directed his accusa-
tions on 19 October.
Sec. 10(c) of the Act provides , in pertinent part, "No order of the
Board shall require the reinstatement of any individual as an employee
who has been suspended or discharged, or the payment to him of any
back pay , if such individual was suspended or discharged for cause."
6 248 NLRB 229 (1980).
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nications are related to a legitimate, ongoing labor
dispute and they do not constitute "a dis'arage-
ment or vilification of the employer's product or its
reputation."7
The record contains evidence that the Respond-
ent's salespersons desired union representation be-
cause they were concerned about, among other
things, actions of the Respondent's managers affect-
ing their commissions. 8 Arguably, therefore, Dara-
ta's actions in bringing his accusations against Per-
aldo and other managers to the bank's attention
were related to issues in the campaign for union
representation. The record evidence indicates,
however, that Darata had little or no factual basis
for his accusations against Peraldo and other man-
agers.9 Thus, all the evidence points to the conclu-
sion that Darata intended primarily to disparage
the reputation of Peraldo and other managers of
the Respondent in the eyes of the financial institu-
tion, in the same way in which he set out to dispar-
age the reputation of the Respondent's owners in
the eyes of the employees in January 1985 by pub-
lishing unsubstantiated rumors and, innuendos of
misconduct. Although, unlike the allegations of
personal misconduct he made in the newsletter, the
accusations Darata conveyed to the bank were at
least related to terms and conditions of employ-
ment, they were nevertheless unsubstantiated asser-
tions that could have ruined a longstanding busi-
ness relationship necessarily based on trust and fair
dealing.
As we have stated, there is sometimes a fine line
between raising highly sensitive issues that relate to
terms and conditions of employment and disparag-
ing an employer's reputation.' ° In this case, how-
ever, we conclude that Darata crossed that line,
and that his attempt to undermine the Respondent's
business surely would have provided the Respond-
ent with ample "cause" for discharge if he had
been employed on 19 October 1984. Accordingly,
we find that Darata was not entitled to reinstate-
ment as of that date.l I
7 Id at 230
8 Among other evidence, a union newsletter introduced at the hearing
contains allegations of improprieties Finance and Insurance Manager Per-
aldo allegedly committed in the processing of credit applications
9 As previously observed, Peraldo immediately denied the accusations
when the loan officer related them to him, and the loan officer testified
that he had never seen any evidence of improprieties in over 3 years. In
fact, the loan officer testified that the bank rarely asked the Respondent
to submit W-2 forms with customers ' credit applications In addition,
Darata did not testify with regard to the incident at all, and the General
Counsel introduced no rebuttal testimony or evidence demonstrating any
factual basis for Darata's accusations
10 Allred Aviation Service Co, supra at 231.
11 See American Arbitration Assn, 233 NLRB 71 (1977), Firehouse Res-
taurant, 220 NLRB 818, 825 (1975)
2. In finding that Darata is not entitled to act as
a union representative, the judge relied on the same
conduct he cited in finding that Darata was not en-
titled to reinstatement as of 25 January 1985. In ad-
dition, the judge cited cases addressing only the
issue of whether an employee's otherwise protected
concerted activity constitutes disparagement of an
employer's product or reputation so as to lose, the
protection of the Act and to provide sufficient in-
dependent "cause" for discharge.12 We agree that
the Respondent should not be required to negotiate
or otherwise deal with Darata as a union represent-
ative. We. rely, however, both on his actions of 19
October 1984 in relaying unsubstantiated accusa-
tions to the bank concerning the Respondent's fi-
nancing practices, discussed supra, and his pub-
lished allegations against the Respondent's owners
in January 1985. In addition, because the Board ap-
plies different standards in determining a party's
right to refuse to bargain with a particular individ-
ual from those used in determining an employee's
right to reinstatement, we will expand on the
judge's rationale.
In Fitzsimons Mfg. Co., 251 NLRB 375 (1980),
affd. sub nom. Auto Workers v. NLRB, 670 F.2d
663 (6th Cir. 1982), the Board found that the em
ployer did not refuse to bargain in good faith in
violation of Section 8(a)(5) of the Act when it re-
fused to meet and discuss grievances with a union
representative who had' threatened physical vio-
lence against an employer representative during a
previous meeting. The Board held that "where the
presence of a particular representative in negotia-
tions makes collective bargaining impossible or
futile, a party's right to choose its representative is
limited, and the other party is relieved of its duty
to deal with that particular representative." 13 Be-
cause Section 7 of the Act guarantees employees
the right "to bargain 'collectively through repre-
sentatives of their own choosing," the circum-
stances in which we will recognize an employer's
right to refuse to deal with a particular union rep-
resentative are very limited.14 When an individual
engages in conduct directed at the employer or its
representatives which engenders such ill will that it
weakens the fabric of the relationship to the extent
that good-faith bargaining is impossible, however,
we recognize an employer's right to refuse to meet
and bargain. with that individual.15
12 Harris Corp, 269 NLRB 733 (1984), Tyler Business Services, 256
NLRB 567 (1981), American Hospital Assn, 230 NLRB 54 (1977)
13 Id at 379
14 See General Electric Co v. NLRB, 412 F 2d 512, 517 (2d Cir 1969)
15 See Fitzsimons Mfg. Co, supra at 379, cf. KDEN Broadcasting Co,
225 NLRB 25, 35 (1976)
SAHARA DATSUN 1047
We are satisfied that, by his actions on both 19
October 1984 and his published remarks in the 25
January 1985 newsletter , Darata created such an
atmosphere of ill will between himself and the Re-
spondent that good -faith bargaining would be
futile, if not impossible , if the Respondent were re-
quired to bargain with Darata as a union represent-
ative . In both instances , the record supports the
conclusion that Darata 's allegations were unsub-
stantiated , and the allegations were directed against
particular members of the Respondent 's manage-
ment, some of whom could be expected to partici-
pate in negotiations with the Union . The January
1985 allegations were of a particularly personal
nature and were aimed directly at the owners of
the Respondent . In these circumstances, we agree
that the Respondent should not be required to meet
or negotiate with Darata , and we affirm the judge's
conclusion that Darata is not entitled to act as a
union representative.
As we have found that Darata was not entitled
to reinstatement after 19 October 1984 , we also sus-
tain the challenge to his ballot in the 15 November
1984 election.
AMENDED REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices , we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
Having determined that the Respondent unlaw-
fully discharged Mark Darata on' 13 September
1984, but that Darata forfeited his entitlement to
reinstatement on 19 October 1984, we shall order
the Respondent to make Darata whole for any loss
of earnings and other benefits he may have suffered
as the result of the discrimination against him from
the date of his termination until 19 October 1984.
Backpay shall be computed as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in Florida Steel Corp., 231 NLRB 651
(1977). We shall also order the Respondent to
remove from its files any reference to Darata's un-
lawful discharge on 13 September 1984 and to
notify him in writing that it has done so and that
the discharge will not be used against him in any
way.
Having found , in agreement with the judge, that
the Respondent 's unfair labor practices make un-
likely the holding of a fair second election, we
shall order the Respondent to bargain with the
Union as the exclusive representative of the em-
ployees in the appropriate unit from 13 September
1984, the date on which it embarked on its unlaw-
ful course of conduct.1 s
Having found that the Respondent violated Sec-
tion 8(a)(5), (3), and ( 1) by failing to bargain in
good faith with the Union by unilaterally discon-
tinuing variable weekly bonuses for a 3-week
period commencing on 24 September 1984, we
shall order the Respondent to reimburse the em-
ployees for the weekly bonuses they would have
received during that period absent such unlawful
conduct . Interest on the bonus reimbursements
shall be computed as prescribed in Florida Steel
Corp., 231 NLRB 651 (1977).
Having found that the Respondent violated Sec-
tion 8(a)(5), (3), and ( 1) by failing to bargain in
good faith by unilaterally instituting a system of
written warnings for rule infractions , we shall
order that the Respondent discontinue the written
warning system and remove the written warnings
from the employees ' personnel files.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Sahara Datsun , Inc., Las Vegas, Nevada,
its officers, agents, successors , and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) Make Mark Darata whole for any loss of
earnings and other benefits he may have suffered as
a result of the discrimination against him in the
manner set forth in the section of this decision enti-
tled `Amended Remedy' and remove from its
records any reference to the unlawful discharge of
Mark Darata on 13 September 1984 and notify him
in writing that this has been done and that the un-
lawful discharge will not be used against him in
any way."
2. Substitute the following for paragraph 2(d).
"(d) Make whole all employees for any losses
suffered as a result of its unilateral discontinuation
of variable weekly bonuses , as provided in the sec-
tion of this decision entitled `Amended Remedy."'
3. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED , with regard to Case
31-RC-5761, that the challenges to the ballots of
Mark Darata , Vincent Venckus, Lee Peraldo, and
Daryl Venger in the election conducted on 15 No-
vember 1984 be sustained . As the Union has not re-
ceived a majority of the ballots cast , the election is
set aside , and the bargaining order alone will take
effect.
16 See Trading Port, Inc., 219 NLRB 298, 301 ( 1975).
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
• aSh•.
WE WILL recognize and, on request , bargain
with The Liberated Workers Welfare and put in
writing and sign any agreement reached on terms
and conditions of employment for our employees in
the bargaining unit:
All new and used car salespersons employed at
our Las Vegas, Nevada facility, excluding all
other employees, guards and supervisors as de-
fined in the Act.
WE WILL rescind our unilaterally instituted writ-
ten warning policy for rule infractions and remove
all written warnings from your personnel files.
WE WILL make you whole, with interest, for any
losses suffered as a result of our unilateral discon-
tinuation of the variable weekly bonuses for a 3-
week period commencing on 24 September 1984.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting the The Lib-
erated Workers Welfare or any other union.
WE WILL NOT threaten to blackball any of you
from jobs with other employers because of your
support of the Union.
WE WILL NOT coercively question you about
your union support or activities.
WE WILL NOT threaten you with discharge for
supporting the Union.
WE WILL NOT tell you that we will not bargain
in good faith with the Union.
WE WILL NOT condition approval of customers'
credit applications on how you vote in a represen-
tation election conducted by the National Labor
Relations Board.
WE WILL NOT refuse to recognize and bargain
with The Liberated Workers Welfare as the exclu-
sive representative of the employees in the bargain-
ing unit.
WE WILL NOT unilaterally discontinue variable
weekly bonuses or unilaterally implement a system
of written warnings for rule infractions, without
notice to , or bargaining with, The Liberated Work-
ers Welfare.
WE WILL NOT in any other manner interfere
with, restrain , or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make Mark Darata whole for any loss
of earnings and other benefits he may have suffered
from 13 September 1984, the date of his unlawful
discharge , until 19 October 1984, less, any interim
net earnings , plus interest.
WE WILL notify Mark Darata that we have re-
moved from our files any reference to his 13 Sep-
tember 1984 discharge and that the discharge will
not be used against him in any way.
SAHARA DATSUN, INC.
Mori Pam Rubin, Esq., for the General Counsel.
Norman H. Kirshman, Esq. (Richards, Watson, Dreyfuss &
Gershon, P.C.), of Los Angeles, California , for the Re-
spondent.
Mark Darata , of Las Vegas, Nevada, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Las Vegas , Nevada, on February
26-28 and March. 1 and 11-15, 1985. The initial charge
was filed on 14 September 1984 , by the Liberated Work-
ers Welfare (the Union). Further charges were filed by
the Union on 25 September , 5 October, and 16 and 21
November 1984.
Thereafter, on 7 February 1985 , following the issuance
of various complaints, the Regional Director for Region
31 of the National Labor Relations Board issued an
order consolidating cases, and a second amended consoli-
dated complaint and notice of hearing alleging a viola-
tion by Sahara Datsun , Inc. (Respondent) of Section
8(a)(1), (3), and (5) of the National Labor Relations Act.
Pursuant to a representation petition filed by the
Union on 11 September 1984 in Case 31 -RC-5761, an
election by secret ballot was conducted on 15 November
1984 . The tally of ballots reflects that of the approxi-
mately 16 eligible employees, 6 cast ballots for the
Union , 6 cast ballots against the Union, and 4 ballots
were challenged . The challenged ballots are sufficient to
affect the results of the election . Thereafter, the Union
filed timely objections to the election . On 22 January
1984, the objections and challenged ballot issues were
consolidated by the Regional Director with the unfair
labor practice proceeding for the purpose of hearing,
ruling , and decision by an administrative law judge.
The parties were afforded a full opportunity to be
heard , to call, to examine and cross-examine witnesses,
SAHARA DATSUN
and to introduce relevant evidence. Since the close of
the hearing, briefs have been received from the General
Counsel and counsel for Respondent. The brief received
from the Union was untimely and has not been consid-
ered.
Upon the entire record,' and based on -my observation
of the witnesses and considerations of the briefs submit-
ted, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent is a Nevada corporation with an
office and principal place of business located in Las
Vegas, Nevada, where it is engaged in the retail sale and
leasing of automobiles and other vehicles. In the course
and conduct of its business operations, the Respondent
annually purchases and receives goods or services valued
in excess of $50,000 directly from suppliers located out-
side the State of Nevada, and annually derives gross rev-
enues in excess of $500,000.
It is admitted, and I find, that Respondent is now, and
has been at all times material , an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED ••
As determined by the Board in the representation pro-
ceeding, and in accordance with the Board's- 11 March
1985 telegraphic denial of Respondent's special appeal of
the administrative law judge's order precluding litigation
of the Union's status as a labor organization, I find that
the Union is, and has been at all times material herein; a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are wheth-
er the Respondent has committed various unfair labor
practices, including the unlawful discharge of two em-
ployees, as alleged; and whether such alleged •unfair
labor practices, which, in part, are also the subject of
election objections, are sufficient to warrant a bargaining
order. Further, the resolution of various challenged bal-
lots in the representation proceeding is necessary in
order to determine the outcome of the election.
B. The Facts
On 11 September 1984, Mark Darata, an employee of
Respondent, on behalf of the Union, filed a representa-
tion petition with the Board in Case 31-RC-5761. Prior
to this date Darata had obtained authorization cards
from- 12 of the 14 new and used car salesmen of the Re-
spondent.2 Each of the 12 employees signed all authori-
zation card worded as follows:
I The parties' joint stipulation to correct transcript , submitted on 22
April 1985, is granted and is made a part of the record.
2 It is admitted that the appropriate unit. herein is correctly described
as follows : .. . , .
1049
For purposes of collective bargaining I hereby
petition the NLRB for a consent election. I am an
employee of Sahara Datsun, and I am of the craft
unit composed of Sales Personnel.
I take as now [sic] to exercise my "Section 7
rights" as guaranteed to me by the National Labor
Relations Act, as I wish to be represented by the
Labor Organization known as the Liberated Work-
ers' Welfare.
Respondent received the aforesaid representation peti-
tion, signed by Darata, during the morning of 13 Sep-
tember 1984, and according to Barbara Askin, Respond-
ent's business manager and secretary -treasurer , the enve-
lope containing the petition was opened by her at 1:30
p.m. that day.
At approximately 2:15 p.m., Rod Harvey, Respond-
ent's general sales manager, paged Mervin White Sr., a
new- and used-car salesman, into his office. Daryl
Venger, lease manager, and Mark Evans, sales manager,
were also present. White described the conversation as
follows:
Well, Rod asked me what I knew about the union
activity at Sahara Datsun, and I told him that I
really didn't know too much. He asked me if I was
involved, and I said yes, that I had been to a couple
of meetings , so I was involved. He asked me who
else was involved, and I told him that I really felt
he should talk to somebody that knew more about it
than I did . He asked me who he should talk to, and
I told him that I felt he should talk to Mark Darata.
He also said that somebody had to be involved, oth-
erewise there would't be a petition. I said , "I think
just about every salesman out there is involved."
White was certain that this conversation occurred
before the time Darata was discharged, infra, and re-
called that he had been talking about the petition with
Darata and other employees immediately before to the
time he had been summoned to the meeting in Harvey's
office. White returned to the lot immediately after the
meeting and told Darata and other employees about
being questioned . Approximately 15 minutes later, ac-
cording to White, Darata was summoned to Harvey's
office. White further testified that he was present when
Darata returned from the meeting and stated that he had
been fired.3
White's testimony was corroborated by that of Ken-
neth Myers, a current employee. Myers testified that he
and other employees were anticipating that the petition
would be received the morning of 13 September 1984.
He heard White paged at about 2:30 p.m. After White
exited from Harvey's office, Myers asked him what hap-
Included: All new and used car salespersons employed by the Em-
ployer at its Las Vegas, Nevada facility.
Excluded : All other employees , guards and supervisors as defined
in the Act.
2 White testified twice in this proceeding . During his testimony on 12
March 1985 he was a current employee of Respondent . At the time he
again testified , on 15 March 1985, he had "voluntarily terminated" his
employment the preceding day. His testimony was consistent on both oc-
casions. •
1050 DECISIONS OF NATIONAL • LABOR RELATIONS BOARD
pened . White said , according to Myers, "They've got the
papers . . . the union papers are here." Darata., accord-
ing to Myers, was then paged a short time later.
Harvey admitted interrogating White about the peti-
tion but was unable to recall the conversation in detail.
Lease Manager Venger, who was present during the
conversation , recalled that Harvey asked White about his
knowledge of the union. Sales Manager Evans, who was
also present , did not testify, and Respondent has not of-
fered any explanation regarding its failure to call him as
a witness.
White testified that on the following day, 14 Septem-
ber 1984, in the parking lot , Sales Manager Evans told
White and several other employees, ' including Vern
Caldwell, that they were creating a lot of problems for
themselves , that they were going to get fired, and would
end up getting blackballed so that they would be unable
to work anywhere else in town . Caldwell, a current em-
ployee, testified regarding the aforementioned conversa-
tion between Evans and three or four other salesmen, as
follows:
[Evans] was talking to all of us, and what he had
stated , it was right after the petition had been filed
with Sahara Datsun the next day. He had stated
that we were all jeopardizing our careers in the
automobile business, and that with what was going
on with the union , we could all be blackballed in
town , that all the dealerships knew who was in-
volved and knew what was going on. He also made
the that the problems that Mark Darata was caus-
ing, he wouldnever sell cars in this town again. He
went on to say that if we caused the same turmoil
[Darata] did, that we would end up the same as he
did and get fired.
As noted previously, Evans was not called as a witness
in this proceeding.
Darata testified that he was called over the public ad-
dress system to Harvey's office about 2:30 p. m. on the
afternoon of 13 September 1984, following Harvey's
interview with White, supra . Lee Peraldo, finance and
insurance manager , was also present . Harvey stated he
was going to have to let Darata go. Darata asked him
why, and whether it had anything to do with the NLRB
petition that the company had received . Harvey did not
reply.
Vincent Venckus worked for the Respondent from
June 1982 until November 1983. He was rehired in July
1984. The two September 1984 union • organizational
meetings were held at his home . On 13 September 1984
about 3 p.m. Harvey called him into the office. Venckus'
testimony regarding the conversation is as follows:
Rod Harvey said , Vic, I think we made a mistake
taking you back , and I said, well, what is wrong
and he started tb fill out my termination notice and
he says , we got this thing in the mail today about a
union and Mark Darata 's' name was on it . Are you
involved in this union and I said, no.
And he says, is Mark Darata involved and I says,
I• don 't know . And he says, is Steve Geller involved
in it and I says, no. He says, are you having union
meetings at your house and I said no and he turned
the [termination notice ] around and said , sign it.4
Harvey admitted that he asked Venckus whether he was
having meetings at his home, and that Venckus said no.
Harvey was unable to recall any further details of the
conversation.
Shortly thereafter, as Venckus was preparing to leave
the premises , Harvey told him to come back into the
office . He asked Venckus if he liked working there.
Venckus said yes and Harvey rescinded the termination.
Then he again asked whether Venckus was having union
meetings at his house . Venckus said no. Harvey said that
if he ever found out that Venckus knew that Mark
Darata or Steve Geller had anything to do with the
Union , he would be fired . Harvey was similarly unable
to recollect any details of this second conversation and
simply recalled telling Venckus that he was not being
terminated.
The next day , Venckus had a conversation with Mark
Evans, as follows:
[he] said, Vic, I don't know anybody around here
who I can trust any more . He says, are you really
having union meetings at your house, and I said no.
He said , well, who was at these meetings and how
come I wasn 't told anything about this.
I told him I didn't want to talk about it and then
he asked me , why is Darata fucking himself with
this union thing . He said , he will never be able to
sell cars in this town again and I said , how can you
stop him from selling cars in another dealership and
he said , calls have already been made . Everybody
knows that he is coming.
Employee Tony Suzuki testified that on the afternoon
of 13 September 1984, Sales Manager Jim Sears called
him into the conference room . Sears asked why the em-
ployees wanted the union and who was involved. The
conversation was interrupted at this point and did not
continue thereafter.
Sears testified that management , on receiving the peti-
tion , wanted to know what was going on , and he volun-
teered to talk to Suzuki to see if he could find out
'what's the story.' Sears said he simply asked Suzuki
"What is going on?" and thereafter Suzuki volunteered
some information.
Steven Geller testified that a week or 10 days after 8
September 1984, the day he had signed a union authori-
zation card, he overheard Harvey tell one of the sales-
men, Hal Berger , that if Harvey had knowledge of
anyone who was involved with the union , he would
make certain that they were blackballed from the car
business in Las Vegas. Harvey admitted telling Berger
and other employees that the people involved in the
union would have trouble getting jobs in town.
Vern Caldwell testified that on 25 October 1984 he en-
tered Finance and Insurance Manager Lee Peraldo's
office to inquire about the approval of a customer's
4 The reason for termination is given on the notice as "unable to adjust
to company policy."
SAHARA DATSUN
credit application. Peraldo replied that the approval de-
pended on Caldwell. Caldwell asked what Peraldo
wanted him to do to get the application approved, and
Peraldo replied that it depended on whether he would
vote for the company or the union in the representation
election scheduled for 15 November 1984. Caldwell was
noncommittal , and the conversation was interrupted
when the phone rang . When Caldwell returned a short
time later , he was advised by Peraldo that the credit ap-
plication had been approved. Peraldo also told him at
this time that the Respondent had a plan which would
insure that there would not be a union in the store.
Peraldo testified that it was possible that he told Cald-
well the approval of the credit application would depend
on whether Caldwell was for or against the Union.
Caldwell testified that on about 21 February 1985,
Sales Manager Sears told him that even if the union had
won the election, the Company was not going to bargain
in good faith and that the employees could all go on
strike and that would be the end of it. Sears denied
making this statement to Caldwell.
The Respondent denies that it was aware of any union
activity whatsoever by Darata or any other employees
until some time after Darata's discharge on 13 September
1984, when the petition, received that day, came to the
attention of Harvey. The Respondent maintains that
Darata was discharged because of the mishandling of the
sale of a truck to a customer, more particularly a radio
which was to be installed in the vehicle. The customer
was also upset because the truck, sold as a new vehicle,5
vibrated, and the Respondent , after repeated efforts, was
unable to remedy the situation.
The record indicates that the installation of the wrong
radio, for which Respondent allegedly blamed Darata, is
not attributable to Darata . According to the testimony of
employee Steve Geller, the customer who had purchased
the truck the day before came back on the day Darata
was discharged and spoke with Harvey and Geller. He
was primarily upset about the aforementioned shimmy or
vibration. He also told Geller, who testified that he is
not certain whether Harvey was present at the time, that
he came into the dealership earlier that morning and that
although Sales Manager Sears, not Darata, had promised
him a particular radio, a different unacceptable radio had
been installed.
Harvey testified that the customer appeared angry and
was speaking to Sears about 8:30 a .m. on the morning of
13 September 1984. Harvey asked what the problem was.
Sears said there was a problem about a radio , and that
Darata had misled the customer . The-customer returned
about 11 a.m. and had an argument with Sears, after
which Harvey offered the customer his money back. The
customer refused as he needed the truck. Sears then rec-
ommended that Darata should be discharged as Sears
didn't need the hassle. Harvey agreed.
Harvey testified that he discharged Darata after lunch
that day, about 1:30 p.m., before knowing anything about
the petition. Harvey recollected that it wasn't much of a
conversation and that he just said he was letting Darata
a The truck apparently had been driven in a race and had been pur-
chased by the Respondent at an auction.
1051
go. Darata became upset and quite loud and contended
that hey was being discharged because of a petition of
some sort being circulated . Harvey ' maintains that his
aforementioned conversation with White occurred, be-
tween 4 and 5 p.m., subsequent to Darata 's discharge.
Venger maintains that Harvey's conversation with White
took place between 4 and 4 :30 p.m. Sears testified simi-
larly to Harvey regarding the incident with the irate cus-
tomer, and stated that Darata was discharged at about 1
p.m. Sears further testified that he had no knowledge of
the petition until perhaps 2 p.m., after Darata's dis-
charge , when Dale Edwards , Respondent 's vice presi-
dent and general manager , told the various managers that
the petition had been received . Employee Hal Berger
maintains that Darata was fired shortly after 1 p.m. when
Berger arrived at work . Finance and Insurance Manager
Peraldo testified that the commotion surrounding Dara-
ta's discharge occurred between 1 :30 and 2 p .m., and
that he was not aware of any union activity until Dara-
ta's outburst about the petition during the discharge con-
versation.
The complaint , as amended at the hearing , alleges that
the Respondent commenced issuing written warnings to
employees about 18 September 1984, without prior
notice to the Union and without affording the Union an
opportunity to bargain regarding the establishment of the
written warning system. It was stipulated by the parties
that there was no system of written warning notices
prior to about 18 September 1984, and no written warn-
ings whatsoever had been issued to any employees prior
to that date . The record also shows that , according to
Harvey's testimony , infractions similar to those reflected
in the written warnings may have occurred on prior oc-
casions, but that no notation of these infractions were
placed in the employees' personnel files. The record
shows that commencing on 18 September 1984, and con-
tinuing thereafter , some 63 written warnings were issued
to various employees.
Venckus, who received approximately 16 such warn-
ings, testified that on one occasion Harvey told him he
was being given a warning notice because of the Union.
Similarly, Vern Caldwell, who received a total of six
warnings, testified that Harvey handed him a warning
slip and said it was "because of what was going on," al-
though Harvey did not specifically mention the union.
Commencing on about 24 September 1984, and for 3
weeks thereafter, the Respondent discontinued its long-
established practice of offering a variety of variable
weekly bonuses as incentives to the salesmen . This policy
was reinstated in about mid -October 1984 , following the
filing of a charge in Case 31-CA-14559 alleging such
conduct to be violative of the Act. The Respondent
proffered no direct evidence regarding its reasons for
discontinuing and subsequently reinstating such bonuses,
but maintains that as sales were good during this period,
incentive bonuses were unnecessary.
Wilbert Lewis Brannigan , an employee in the detail
department testified that on 13 November 1984 , Venckus
said he had taken the knobs off a radio in a green BMW
on Respondent's lot and would "give Brannigan some-
thing" if he would hand it over the fence . Brannigan re-
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fused. He then saw Venckus speaking with Chris
McDaniels , another employee, but did not overhear the
conversation . Shortly thereafter he observed Rod
Harvey talking to McDaniels . A few minutes later Sales
Manager Sears asked Brannigan whether Venckus talked
to him and what the conversation was about . Brannigan
told him. Then Brannigan accompanied Sears to the
office and related the conversation to Harvey. Brannigan
further testified that that time, on about three occasions,
Venckus said he was in business for himself and solicited
Brannigan to purchase cocaine from him. He had also
asked Brannigan to hand him other items over the fence.
During his 13 November 1984 conversation with Harvey
and Sears , Brannigan told them about Venckus' solicita-
tion to sell him drugs and also related that Venckus had
been sleeping in cars in the back lot.
Christopher McDaniels , a new-car porter, testified that
on 13 November 1984 Venckus approached him and
asked if he would hand a radio over the fence that he
had prepared to steal out of a particular car which
Venckus pointed out to him . McDaniels said no . Shortly
thereafter Harvey approached and asked McDaniels if
Venckus was trying to sell him drugs . McDaniels said
that Venckus had not attempted to sell him drugs on that
occasion , but that Venckus had approached him regard-
ing drugs in the past . McDaniels was thereafter paged to
come up front into Jack Beigger's office. Beigger is Re-
spondent 's principal owner . After relating his experiences
with Venckus, McDaniels was instructed by Harvey to
lock up the car in question and bring him the keys.
McDaniels did so and observed that the knobs had been
taken off the radio and that it was very accessible,
having been pushed back into the console . McDaniels
testified that he began working for the Respondent in
June 1984 and began hearing about Venckus' drug activi-
ty in about September , after which time he noticed
Venckus going "downhill."
Venckus testified that on 13 November 1984 McDan-
iels, in the presence of Brannigan , was attempting to sell
Venckus a radio, and that McDaniels and Brannigan had
attempted to sell him items on prior occasions . Later,
Biegger came into the office and yelled at Venckus for
"attempting to sell drugs to the kid" and asking them to
pass a radio over the fence. Shortly thereafter he over-
heard Biegger speaking to someone on the phone, stating
that "You know Vic Venckus, our star performer, we set
him up good . We finally got something that we can
really make stick." Thereafter Venckus was suspended.
When he came in to vote on 15 November 1984, Harvey
handed him a termination notice reflecting that Venckus
was terminated for "misconduct " effective 13 November
1984. Venckus testified that he has never attempted to
sell drugs to anyone . Biegger did not testify in this pro-
ceeding.
Harvey testified that the chain of events leading to
Venckus' discharge began when he observed Venckus
talking to McDaniels on the afternoon of 13 November
1984. The conversation appeared to end abruptly when
they observed Harvey, and this caused him to become
suspicious . A short time later he asked McDaniels what
was going on. He further asked whether Venckus was
trying to sell him drugs , as Harvey was aware of a
rumor of this nature . At that point McDaniels related his
knowledge of Venckus' various activities. Thereafter,
Venckus was suspended and discharged.
Lee Peraldo is Respondent 's finance and insurance
manager and has worked in the automobile sales business
for 34 years. He writes contracts , sells insurance and ex-
tended service warrantees , deals with the bank on each
car sale, sells financing to customers and sells the paper
to the bank, and negotiates with financial institutions on
interest rates . After negotiating a deal , the salesman
brings the customer and credit information to Peraldo,
who is introduced to the customer as the finance manag-
er. Peraldo may instruct a salesman or sales manager to
obtain additional information or a larger down payment
before a credit application is submitted to a financial in-
stitution . He has authority to authorize the release of the
vehicle to the customer before the financing has been fi-
nalized and approved by the bank . He signs gas vouch-
ers, has the keys to the premises, and locks the gate at
night . He does not sell cars or wait on customers.
Peraldo is paid monthly, whereas the salesmen are
paid semimonthly . The salesmen do not receive regular
draws on their income, whereas Peraldo receives $300
plus a $1500 draw monthly. His commission is based on
finance, insurance , and warranty sales, rather than the
selling price of the vehicle. His yearly earnings are ap-
proximately three times the earnings of the highest paid
car salesman, and appear to be approximately only 10
percent less than General Sales Manager Rod Harvey's
yearly earnings . Unlike the salesmen, he is provided the
use of a "demo" car. He attends weekly management
meetings during which policy and personnel matters are
discussed and does not attend the twice-weekly sales-
men's meetings.
Daryl Venger is a former salesman and was promoted
to the position of lease manager apparently in late 1983
or early 1984 when he was given the job of arranging
the lease with the customer after a lease application,
filled out by the salesmen , is submitted to him. Upon re-
ceiving the application Venger deals with the customer
and negotiates the lease arrangements , sometimes refer-
ring to Finance and Insurance Manager Peraldo on cer-
tain matters . Before that time, the individual salesmen
had performed this work on lease deals they had negoti-
ated . Salesmen do not arrange leases. Before 11 Septem-
ber 1984, Venger would get a commission for lease deals
even if he had nothing to do with the deal which may
have been arranged by another individual in Venger's
absence . In 1984 Venger earned 40 percent more than
the highest paid car salesman.
Venger has access to the invoice of the car he is trying
to lease and therefore knows the cost of the car to the
dealership. The salesmen do not have access to this in-
formation . Respondent has given written reprimands to
salemen for being behind the sales desk, whereas Venger
is permitted behind the desk and is not subject to such
restrictions.
According to Harvey, Venger earned more income be-
cause he works more hours. Harvey testified, however,
that the inequity between the income of Venger and the
salesmen was recognized , and Venger's significantly
SAHARA DATSUN
greater income was deemed unfair to the salesmen.
Therefore , it was changed on 1 January 1985. The
record does not reflect the nature of the change.
It was stipulated that about 5 weeks prior to 1 March
1985 (i .e., about 25 January 1985) Darata prepared a
newsletter 's and mailed it to all the individuals who ap-
peared on the Excelsior list in the representation matter.
The pertinent portion of the newsletter prepared by
Darata was read into the record and states as follows:
At this hearing [i .e., the instant .unfair labor prac-
tice hearing] the Union intends to put to use the
fruits of an extensive investigation held by the
Union about the illicit goings on by the President
and Vice President of Sahara Datsun . Confirmed re-
ports have shown that Jack Biegger , President, and
Dale Edwards , Vice President, have been involved
in sex out of wedlock with two known prostitutes.
During such time they had both indulged in the use
of cocaine with these two prostitutes . It occurred
when Biegger and Edwards had taken a short trip
in Biegger 's private plane with these two women.
Biegger and Edwards through subpoena and
police records of known drug dealers, the Union in-
tends to show that both Biegger and Edwards had
on more than one occasion partaken in the use and
sale of cocaine, and there will be a connection
shown by the Union that will link Biegger and Ed-
wards to the riffraff underground of the drug busi-
ness.
Darata testified , and the General Counsel asserts, that
this portion of the newsletter was written as a response
to severe provocations , namely, according to General
Counsel 's brief, that
In addition to committing egregious unfair labor
practices , Respondent further provoked Darata by
making vicious attacks on the character of the
Union 's officers . Beigger told the salesmen that
Darata was just an opportunist and that Venckus
was selling drugs to children . Furthermore, Sears
said that the Union was involved with the Mafia.
The record evidence regarding this issue shows that,
according to the testimony of employee Kenneth
Meyers, Jack Biegger, Respondent 's principal owner,
told the employees about 20 November 1984, shortly
after the election, that it was time to forget about the
Union and to go on with the business of selling cars. He
also said that Darata was an opportunist who wasn't pri-
marily interested in the employees ' welfare, and that Vic
Venckus was selling drugs to children.? Further, accord-
6 The newsletter, R. Exh . 7, is improperly omitted from the record ex-
hibits , and a note has been substituted by the reporter stating "Respond-
ent's exhibit #7 retained by counsel ." The record shows that Respond-
ent's counsel was to provide copies of the exhibit for the formal exhibit
file, but apparently has not done so.
7 The record does not reflect whether the "children" were the young
men working for Respondent who testified in this preceeding regarding
Venckus ' drug activity.
1053
ing to the testimony of Darata , he had heard that Sears
told orid ' of the salesmen that the Union was involved
with the Mafia.
When Darata was asked what compelled him to in-
clude the foregoing paragraph in the newsletter , Darata
thereupon testified , in effect , that his credibility and
character and that of the Union had been maligned by
the aforementioned statements by Biegger and Sears, and
that he felt retaliation in kind was appropriate.
C. Analysis and Conclusions
1. The unfair labor practice proceeding
I find that, as alleged , the following instances of un-
lawful conduct, described above, have been demonstrat-
ed by substantial and credible record testimony which is
largely undenied : General Sales Manager Harvey 's inter-
rogation of White and Venckus regarding their union ac-
tivity and involvement and the union activity of other
employees ; Sales Manager Evans ' threats to Venckus,
White, Caldwell and other employees that their careers
were being jeopardized by the union activity, and that
they would be terminated and thereafter blackballed,
thus precluding them from obtaining gainful employ-
ment; Harvey's threat of discharge to Venckus; Sales
Manager Sears' interrogation of Suzuki regarding his
union activity and the union activity of others; Harvey's
threat to Berger , overheard by Caldwell, that employees
involved with the union would be blackballed from the
car business in Las Vegas; Sears' statement to Caldwell,
following the election , that the Respondent would not
bargain in good faith and the employees could simply all
go on strike; Finance and Insurance Manager Peraldo's
statement8 to Caldwell that the approval of a credit ap-
plication, and thus whether Caldwell would receive
commission for the sale of a vehicle , was dependent on
how he intended to vote in the election.
The aforementioned conduct is clearly coerceive in
nature and is therefore violative of Section 8(a)(1) of the
Act. Rossmore House, 269 NLRB 1177 ( 1984); Master Se-
curity Services, 270 NLRB 543 at 553 (1984), Allied Let-
tercraft Co., 272 NLRB 612 (1984), L. D. Brinkman
Southeast, 261 NLRB 208-209 (1982); Boyer Ford Trucks,
254 NLRB 1389, 1394 (1981); Swan Coal Co, 271 NLRB
862 (1984).
The Respondent has offered no explanation for the
abrupt change from verbal to written warnings for rule
infractions, which written warnings , unlike the verbal
reprimands , were placed in the employees ' personnel
files. This significant change , instituted within a week
following the receipt of the representation petition, re-
sulted in a profusion of written warnings . Indeed, two
employees , Venckus and Caldwell, upon being issued
such warnings , were in effect told by supervisors that the
warnings were directly related to the union activity. I
find that the establishment of such a system was in re-
sponse to the union activity and is therefore violative of
Section 8(a)(1) and (3) of the Act, as alleged . Gurabo
9 1 find , infra, that Peraldo is a supervisor or managerial employee.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lace Mills, 265 NLRB 355 (1982 ); Plastic Film Product,
238 NLRB 135 , 147-148 ( 1978). 'At'
Similarly , I find that discontinuing the variable weekly
incentive bonuses at about the same time was in retalia-
tion for the employees ' union activity . Such weekly bo-
nuses were significant sources of additional income to
the salesmen and had been in existence , without excep-
tion , for apparently at least several years . Respondent's
contention that the- bonuses were not needed for a short
period of time due to an increase in sales is not persua-
sive, particularly as Respondent has not shown a similar
past pattern of discontinuing the variable weekly bonuses
during prior periods of high sales . I find, as alleged, that
by discontinuing the bonuses , the Respondent has violat-
ed Section 8(a)(1) and (3) of the Act.
I credit the testimony of employees White and Myers,
both of whom were subjected to extensive cross -exami-
nation and impressed me as forthright witnesses having
accurate recollections of the events and time sequences
on 13 September 1984. It has not been shown that either
White or Myers had any doubt that White 's interroga-
tion preceded the discharge of Darata or that their testi-
mony was deliberately false . The persuasive testimony of
White and Meyers , both current employees at the time of
the hearing herein , is entitled to significant weight. See
Heritage Nursing Home , 269 NLRB 230„234 ( 1984); Fed-
eral Stainless Steel, 197 NLRB 489 , 491 (1972); Gateway
Transportation Co., 193 NLRB 47, 48 fn . 12 (1971). I spe-
cifically discredit those individuals who either directly
testified or implied that Darata was discharged prior to
Harvey 's interrogation of White.
Thus, I find that General Sales Manager Harvey told
White that he had received the petition and was there-
fore fully aware of Darata 's involvement with the Union
prior to Darata 's discharge . Shortly thereafter , within ap-
proximately 15 minutes , Darata was terminated. I do not
credit the testimony of Harvey and Sales Manager Sears
that the discharge was occasioned either by the difficulty
with the disgruntled customer or by Darata's general
work performance . Indeed , as noted above, the record
indicates that Sears , rather than Darata , was responsible
for whatever mistake there may have been regarding the
installation of the incorrect radio. It is also significant
that the matter of the radio was not even raised by
Harvey during the brief discharge conversation. More-
over, the record shows that Darata 's performance was at
least similar to that of other employees who were not
discharged , and Harvey testified that the customary
practice of Respondent is to wait until the end of the
month to discharge employees . On the basis of the fore-
going , I conclude that Darata was discharged on 13 Sep-
tember 1984 in violation of Section 8(a)(1) and (3) of the
Act, as alleged.
It is also clear that the discharge of Venckus on the
same date was unlawful . Indeed the Respondent does not
even argue to the contrary in its brief. I therefore find
that the discharge of Venckus on 13 September 1984 was
violative of Section 8 (a)(1) of the Act , as alleged.
To be sure, the Respondent was thereafter seeking a
way to rid itself of Venckus. Indeed , on being rehired
within minutes following his original discharge, Harvey
threatened to again discharge Venckus if it became
known to him that Venckus was more knowledgeable re-
garding the union activity than he originally admitted.
Moreover, the record stands unrebutted that on his sub-
sequent layoff on 13 November 1984, Venckus overheard
Respondent 's principal owner , Jack Biegger, state, "You
know Vic Venckus, our star performer , we set him up
good . We finally got something we can really make
stick."
Nevertheless , I find that the layoff and subsequent dis-
charge of Venckus prior to the election on 15 November
1984 was not unlawful . I specifically credit the testimony
of employees Brannigan and McDaniels , who appeared
to be forthright individuals , and find that Venckus had
attempted to solicit their assistance in an effort to engage
in theft of Respondent 's property. In addition, I find that
Venckus attempted to sell drugs to them. Nor is there
convincing record evidence that Respondent had prior
knowledge of or condoned such activities . Such miscon-
duct clearly constitutes a legitimate basis for discharge.
Even though Respondent may have been actively at-
tempting to find a basis for discharging Venckus as a
result of his union activity , this consideration cannot in-
sulate Venckus from appropriate discipline . I am mindful
of the fact that , according to Venckus, he allegedly over-
heard Biegger say, "We set him up good." However,
Venckus' testimony regarding the drug and theft inci-
dents has not been credited, and I also discount his self-
serving and rather implausible testimony regarding the
statement he allegedly overheard Biegger make over the
telephone, despite Biegger's failure to testify. There
simply is no credible evidence that Venckus was "set
up" or that the testimony of employees Brannigan and
McDaniels was fabricated. Therefore I shall dismiss this
allegation of the complaint.
The record shows that by 11 September 1984 Darata
had received authorization cards from 12 of the 14 unit
employees . The cards are unambiguous and designate the
Union as the employees ' collective-bargaining representa-
tive . Further, contrary to Respondent 's contentions, ex-
tensive record evidence regarding the organizational
meetings at Venckus' home , and Darata 's representations
to the employees concerning the origin, history, and pur-
pose of the Union shows that the employees were nei-
ther consuming alcohol or using drugs on these occa-
sions, nor were they misled by Darata regarding the
Union. Thus, the employees were told, in effect, that the
Union was a small, independent organization with little
experience representing employees . I find that all the au-
thorization cards are valid and correctly reflect the
intent of the card signers, each of whom was fully aware
of the nature and import of his action at the time. I fur-
ther find that no misrepresentations were made concern-
ing the nature of the organization , and that therefore the
employees were not induced to sign the cards believing
that the organization was something other than what it
was purported to be. From the foregoing, it is clear that
at all times material the Union represented an over-
whelming majority of Respondent 's employees in the ap-
propriate unit.
From the outset , the Respondent embarked upon a
pervasive and unlawful course of conduct in retailiation
SAHARA DATSUN 1055
for the employees' union activity. Such misconduct af-
fecting each unit employee included unlawful threats,
discharges , instances of interrogation , imposition of an
unlawful written warning system , and discontinuation of
incentive bonuses . It is clear that such egregious and per-
vasive unfair labor practices cannot be eliminated by tra-
ditional means and would continue to have an undermin-
ing effect on the election process . Therefore, under the
circumstances herein , a bargaining order is clearly man-
dated. NLRB P. Gissel Packing Co., 395 U.S. 579 (1969);
Ohio New & Rebuilt Parts, 267 NLRB 420, 421-422
(1983); Swan Coal Com., 271 NLRB 862 (1984); Marchese
Metal, 270 NLRB 293 (1984).
Moreover, in view of the fact that Respondent, since
about 13 September 1984, has been obligated to.recog-
nize and bargain with the Union as the collective-bar-
gaining representative of its employees, it has further
violated Section 8(a)(1) and (5) of the Act, as alleged, by
unilaterally discontinuing its weekly incentive bonus
system for a 3-week period and by instituting a written
warning system which has apparently remained in effect.
I so find.
2. The representation proceeding
The challenge to the ballot of Finance and Insurance
Manager Lee Peraldo is sustained. Peraldo is paid nearly
as much as Respondent 's general sales manager, attends
weekly management meetings at which policy and per-
sonnel matters are discussed , and it is clear that his inter-
ests are closely aligned with those of management rather
than with the new and used car salesmen . I find that he
is a supervisor or managerial employee , and he is thereby
excluded from the unit . See Ed Chandler Ford, 254
NLRB 851 (1981). Cf. Larry Faul Oldsmobile, 262 NLRB
370 (1982).
The challenge to the ballot of Lease Manager Daryl
Venger will also be sustained . At times material herein,
Venger was not a new or used car salesman . His wages,
hours, and nature of his work, as noted above,, were dis-
similar to those of the unit employees . Respondent's be-
lated attempts to reduce Venger's income or to apparent-
ly place him on the sales floor in order to clothe him
with indicia of unit status tends to emphasize, rather than
diminish , his lack of sufficient community of interest
with the unit employees during times material to the
election proceeding.
Finally, as it has been determined that Mark Darata
was unlawfully discharged prior to the election, it is
clear that he is an eligible voter and the challenge to his
ballot is overruled. The challenge to the ballot of Vic
Venckus is sustained , as he was lawfully discharged prior
to the election.
The various unfair labor practices herein also consti-
tute meritorious objections to the election.
Darata's direct request that a particular financial institu-
tion take action against the Respondent or cease doing
business with it because of purportedly false credit appli-
cations submitted by the Respondent , the Respondent as-
serts in its brief that on 9 May 1985 Darata entered Re-
spondent 's premises and attacked Beigger with a club, in-
flicting injury on both Biegger and Edwards . Darata was
subsequently arrested.
The General Counsel , on 18 June 1985 , filed a motion
to strike those portions of Respondent 's brief pertaining
to the alleged posthearing misconduct of Darata . There-
after, on 21 June 1985, Respondent filed an opposition to
the said motion and an alternative request that the hear-
ing be reopened for the purpose of taking additional evi-
dence on this issue.
The election in the representation proceeding was held
on 15 November 1984. Some 2 months thereafter Darata
published and disseminated a union newsletter containing
scurrilous accusations against Respondent 's president and
vice president regarding alleged sexual exploits and con-
nections with the "underground" involving the sale and
use of narcotics . The attempt of Darata and the General
Counsel to justify such conduct on the basis of severe
provocation is unfounded. Whatever statements by Re-
spondent allegedly provoked such a vitriolic response
from Darata occurred some 2 months previously , follow-
ing the election , and therefore could not have had a
bearing on the outcome of that proceeding. Moreover,
Darata 's verbal attack on Respondent 's officials may not,
under the circumstances , even remotely be characterized
as a legitimate response to Respondent 's allegations
against Darata and Venckus as union representatives, but
rather constitutes vengeful retaliation designed simply to
deprecate Respondent 's officers in the eyes of its em-
ployees . Moreover, such inflammatory remarks, although
directed at particular individuals , have a direct effect on
the Respondent , as the alleged illegal activity of Re-
spondent's principal officers would clearly have a tend-
ency to reflect adversely upon the integrity of the busi-
ness practices of Respondent.
I conclude that Darata 's published remarks were so far
beyond the bounds of permissible conduct that, in agree-
ment with Respondent , Darata is neither entitled to rein-
statement nor to deal with Respondent as a union repre-
sentative . Cf. Tyler Business Services, 256 NLRB 567
(1981); American Hospital Assn ., 230 NLRB 54 (1977);
Harris Corp., 269 NLRB 733 (1984). Accordingly, on the
basis of the foregoing , the posthearing conduct of Darata
is immaterial to the issues herein, and therefore I shall
grant the General Counsel's motion to strike that portion
of Respondent 's brief pertaining to such conduct. Simi-
larly, Respondent 's motion to reopen the hearing is
denied.
4. The status of Mark Darata
In its brief the Respondent maintains that it should not
be required to reinstate Darata or deal with him as a rep-
resentative of the Union . In addition to the remarks pub-
lished and disseminated by Darata in the union newslet-
ter, supra, and further uncontroverted record evidence of
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing-of Section 2(5) of the Act. - .
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All new and used car salespersons employed by the
Respondent at its Las Vegas, Nevada facility zcluding
all other employees , guards and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 7(a)
of the Act.
4. At all times since 13 September 1984 the Union has
been the exclusive representative for the purposes of col-
lective bargaining within the meaning of Section 7(a) of
the Act.
5. Respondent has violated section 8 (a)(1), (3), and (5)
of the Act by the conduct found violative in section C of
this decision.
6. By the unfair labor practices found above the Re-
spondent has interfered with the freedom of choice of its
employees in the representation proceeding in Case 31-
RC-5761.
THE REMEDY
Having found that the Respondent violated and is vio-
lating Section 8(a)(1), (3) and (5) of the Act, I recom-
mend that it be required to cease and desist therefrom
and in any like or related manner from interfering with,
restraining or coercing its employees in the exercise of
their rights under Section 7 of the Act. Moreover, Re-
spondent shall be required to post the attached notice.
As it has been determined that employee Mark Darata
was unlawfully discharged 'on 13 September 1985 but
thereafter forfeited his entitlement to reinstatement on 25
January 1984, it is recommended that the Respondent
make him whole for any loss of earnings he may have
suffered from the date of his termination until 25 January
1985. Backpay is to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1 .950),
and Florida Steel Corp., 231 NLRB 651 (1977). See gen-
erally Isis Plumbing Co., 139 NLRB 716 (1962).
Further, Respondent shall be ordered to remove from
its files any reference to the aforementioned unlawful dis-
charge and notify Darata that this has been done and
that the particular 13 September 1984 discharge will not
be used against him in any way. See Sterling Sugars, 261
NLRB 472 (1962).
I shall further recommend that Respondent be ordered
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the unit found appropriate herein.
Having found that the Respondent made certain unilat-
eral changes in violation of Section 8(a)(5) of the Act,
namely the policy of written warnings for rule infrac-
tions and the discontinuation of weekly variable bonuses,
I recommend that the various written warning notices be
removed from the employees' personnel files and the em-
ployees be reimbursed for the weekly bonuses they
would have received absent such unlawful unilateral
conduct.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
ORDER
The Respondent, Sahara Datsun , Inc., its officers,
agents , successors , and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their union ac-
tivity.
(b) Threatening to blackball employees from other
sales positions for other employers.
(c) Interrogating employees concerning their member-
ship in or activities on behalf of the Union.
(d) Threatening to discharge employees because of
their membership in or activities on behalf of the Union.
(e) Telling employees that the Respondent would not
bargain in good faith with the Union.
(f) Telling employees that the approval of submitted
credit applications is dependent on how they vote in the
representation election.
(g) Refusing to recognize and bargain with the Union
as the exclusive collective -bargaining representative of
all its new and used car salespersons employed by the
Respondent at its Las Vegas, Nevada facility, excluding
all other employees, guards, and supervisors as defined in
the Act.
(h) Making unilateral changes in wages or working
conditions without bargaining to impasse with the Union.
(i) In any other manner interfering with, restraining or
coercing its employees in the exercise of the right to self
organization , to form , join , or assist labor organizations,
to bargain collectively through representatives of their
own choosing , and to engage in other concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all
such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole Mark Darata for any loss of earnings
he may have suffered by reason of the discrimination
against him in the manner set forth in the remedy section
and remove any reference to his 13 September 1984 dis-
charge from his personnel file and notify him that this
has been done.
(b) Recognize and, on request, bargain with the Union
as the exclusive bargaining representative of the employ-
ees in the appropriate unit described above with respect
to wages, rates of pay , and hours of employment and
embody such understanding in a signed written agree-
ment.
(c) Discontinue the unilaterally instituted written
warning policy and remove the various written warnings
from the employees ' personnel files.
(d) Reimburse employees for the earnings they may
have lost as a result of the discontinuation of the weekly
variable bonus program.
(e) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records, time-
cards, personnel records and reports , and all other
9 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
SAHARA DATSUN
records necessary or useful to analyze the amount of
backpay due under the terms of this Order.
(f) Post at its place of business in Las Vegas, Nevada,
copies of the attached notice marked "Appendix." 10
Copies of the notice, on forms provided by the Regional
Director for Region 31, after being signed by the Re-
spondent 's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1057
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED regarding the represen-
tation proceeding in Case 31-RC-5761, this matter be re-
manded by the Board to the Regional Director for
Region 31 directing that the ballot of Mark Darata be
opened and counted, and that a revised tally of ballots be
prepared and served on the parties. If the revised tally
reveals that the Petitioner has received a majority of the
valid ballots cast, the Regional Director shall issue a
Certification of Representative. If the revised tally shows
that the Petitioner has not received a majority of the
valid ballots cast, the Regional Director shall set aside
the election results, dismiss the petition, and vacate the
proceedings.