Schaumburg Hyundai, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1995

318 N.L.R.B. 449 (N.L.R.B. 1995)

449
318 NLRB No. 48
SCHAUMBURG HYUNDAI, INC.
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
3 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) of the Act by discharging employee Peter Goff, we do not
rely on the comments the judge made regarding the Respondent’s al-
leged justification for the discharge in the last sentence of sec.
II,B,3, par. 2.
4 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
5 These additional violations further bolster our finding that the
likelihood of holding a free and fair election is slight and that the
imposition of a bargaining order is warranted.
6 All dates are in 1994, unless otherwise noted.
7 The judge also found that Weissberg did not coercively interro-
gate employees either during this meeting or during his conversation
with employee Goff on January 21, 1994. We find it unnecessary
to pass on these allegations as the violations would be cumulative
in light of the judge’s finding, which we adopt, that Weissberg later
coercively interrogated employee Robert Jenssen.
Schaumburg Hyundai, Inc. and Automobile Me-
chanics Local No. 701, International Associa-
tion of Machinists and Aerospace Workers,
AFL–CIO. Cases 13–CA–32334 and 13–RC–
18838
August 24, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On March 30, 1995, Administrative Law Judge Rob-
ert A. Giannasi issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed cross-exceptions and a support-
ing brief, and the Respondent and the General Counsel
each filed an answering brief to the other’s exceptions.
The National Labor Relations Board has delegated
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 briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions3 as modified, and to adopt the rec-
ommended Order as modified.
We find no merit to the Respondent’s exceptions to
the judge’s findings that the Respondent engaged in
Section 8(a)(1), (3), and (5) violations during and after
the Union’s election campaign at its automobile dealer-
ship in Schaumburg, Illinois. We also agree with the
judge that the Respondent’s unfair labor practices have
made the likelihood of holding of a free and fair sec-
ond election slight and that the imposition of a bar-
gaining order is warranted.4 However, for the reasons
stated below, we reverse the judge and find that the
Respondent further violated Section 8(a)(1) when its
owner, Rick Weissberg, threatened employees with
more onerous working conditions, stricter enforcement
of work rules, and the loss of earnings in retaliation
for their union activities.5
In early 1994,6 the Respondent employed seven me-
chanics on two separate shifts at its car dealership. On
January 10, after the Union filed a representation peti-
tion and demanded recognition from the Respondent,
Weissberg held a shop meeting for the mechanics. The
judge found, and we agree, that Weissberg at the time
had knowledge of the employees’ union activities even
though he was not present when the Union demanded
recognition. Weissberg began the meeting by inviting
employees to state their problems. He later suggested
that he would favorably resolve the grievances in the
absence of union representation.
The evidence also shows that, during this meeting,
an employee told Weissberg that he wanted the Union
to represent the mechanics. Weissberg said that he had
‘‘no problem’’ with the Union and would sign a union
contract if the employees selected the Union to rep-
resent them. Weissberg warned, however, that if he
‘‘signed the papers,’’ the shop would be run ‘‘strictly
by union rules.’’ Weissberg referred to a union con-
tract that he held in his hand. He also said that a union
shop would mean the end of the team system and a
change to independent booking or individual assign-
ments. According to Weissberg, if the Union ‘‘came
in,’’ not all the mechanics would be considered jour-
neymen and be paid journeymen’s wages. He said that
some would be considered semiskilled mechanics or
apprentices. When Weissberg asked how many me-
chanics held journeymen cards, three or four employ-
ees raised their hands. Weissberg explained that only
those ‘‘who had journeymen’s cards would be consid-
ered journeymen.’’
Although the judge properly found that the Re-
spondent violated Section 8(a)(1) by soliciting griev-
ances during the meeting with the implication that they
would be resolved without a union, he did not find that
Weissberg violated the Act in any other manner during
the January 10 meeting. The judge thus concluded that
Weissberg did not threaten employees with more oner-
ous working conditions, stricter enforcement of work
rules, or the loss of earnings.7 Rather, in the judge’s
view, Weissberg was informing employees that these
changes would result from the implementation of the
standard union contract that Weissberg was describing
and that he held in his hand as he spoke. The judge
stressed that the General Counsel did not submit cop-
ies of the union contract to refute the inference that the
Union was going to insist on stricter rules as it had
done in other contracts.
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 We note that the present case is distinguishable from Benjamin
Coal Co., 294 NLRB 572 fn. 2 (1989), where the union’s own cam-
paign statements substantiated the employer’s claim that the union
would insist on the terms of its standard agreement. Here, there is
no evidence regarding the bargaining position the Union would take
if negotiations occurred.
We conclude, based on NLRB v. Gissel, supra at
618, that the judge wrongfully imposed on the General
Counsel the burden of showing that unionization
would not cause lower wages and harsher working
conditions as Weissberg said would occur if employees
voted in the Union. Although an employer can legiti-
mately make a prediction, as Weissberg did here, re-
garding the precise effects of unionization, the pre-
diction must be carefully made on the basis of objec-
tive fact to convey an employer’s belief as to demon-
strably probable consequences beyond its control.
NLRB v. Gissel, id. We do not find that Weissberg’s
simple act of waving a contract in front of the unit em-
ployees was sufficient to constitute objective evidence
supporting his prediction that employees would suffer
adverse consequences if they voted in the Union. We
emphasize that the Respondent did not introduce this
contract into evidence here or otherwise attempt to
document its claim. Moreover, even assuming the
Union’s standard collective-bargaining agreement pro-
vided for the wages and working conditions that
Weissberg had predicted, this does not mean that the
bargaining unit employees would automatically be cov-
ered by such a collective-bargaining agreement follow-
ing negotiations. For these reasons, we conclude that
the Respondent further violated Section 8(a)(1) by
Weissberg’s threats of more onerous working condi-
tions, stricter enforcement of work rules, and the loss
of earnings.8
CONCLUSION OF LAW
Substitute the following for the judge’s Conclusions
of Law 1.
‘‘1. By soliciting grievances from employees and
implicitly promising to resolve them without a union,
circulating a petition for employees to revoke their
union authorization cards, suggesting the futility of
union representation and the inevitability of a strike
and threatening retaliation in the form of job losses,
promising benefits to and interrogating employees, and
threatening employees with more onerous working
conditions, stricter enforcement of work rules, and the
loss of earnings, the Respondent violated Section
8(a)(1) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Schaumburg Hyundai, Inc., Schaumburg, Illinois, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 1(j) and reletter
the subsequent paragraph.
‘‘(j) Threatening employees with more onerous
working conditions, stricter enforcement of work rules,
and the loss of earnings because of their union activi-
ties.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that the election in Case
13–RC–18838 is set aside and that the petition in that
matter is dismissed.
MEMBER STEPHENS, dissenting in part.
I join my colleagues in all respects except that I
would not reverse the judge’s dismissals of the 8(a)(1)
allegations relating to Weissberg’s remarks concerning
changes that could occur under an area standard union
contract. For the reasons stated by the judge, I would
not find those remarks unlawful.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to recognize or bargain with
Automobile Mechanics Local No. 701, International
Association of Machinists and Aerospace Workers,
AFL–CIO as the exclusive bargaining agent of the fol-
lowing employees:
All full-time and regular part-time journeymen
mechanics, apprentice mechanics, semi-skilled
mechanics and technicians employed by us at our
Schaumburg, Illinois facility, but excluding shop
foremen, office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
WE WILL NOT solicit grievances from employees and
implicitly promise to resolve them without a union.
451SCHAUMBURG HYUNDAI, INC.
WE WILL NOT circulate a petition for employees to
revoke their union authorization cards.
WE WILL NOT suggest the futility of union represen-
tation and the inevitability of a strike and threaten re-
taliation in the form of job losses.
WE WILL NOT promise benefits to employees in
order to discourage union support.
WE WILL NOT coercively interrogate employees
about their union activities.
WE WILL NOT discriminate against employees in
order to discourage union activities by granting in-
creases in hours, instituting a timecard program and
issuing payroll sheets in response to unlawfully solic-
ited employee grievances, announcing and implement-
ing changes in PDI and other work assignments, an-
nouncing and instituting a 1-hour lunch period, and an-
nouncing and implementing raises to reward employ-
ees for rejecting the Union.
WE WILL NOT discharge or otherwise discriminate
against employees to discourage union activities.
WE WILL NOT announce and implement changes in
wages, hours, and terms or conditions of employment
without first giving the Union a chance to bargain over
such changes.
WE WILL NOT threaten employees with more oner-
ous working conditions, stricter enforcement of work
rules, and loss of earnings because of their union ac-
tivities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL recognize and, on request, bargain collec-
tively in good faith with Automobile Mechanics Local
No. 701, International Association of Machinists and
Aerospace Workers, AFL–CIO as the exclusive bar-
gaining representative of the employees in the bargain-
ing unit described above, with the Union’s recognition
to be retroactive to January 10, 1994, and embody any
resulting agreement in a written and signed document.
WE WILL rescind the changes implemented in PDI
and shift assignments and return those assignments to
the situation that existed as of January 10, 1994.
WE WILL offer Peter Goff immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent job, without prejudice
to his seniority or any other rights or privileges, and
make him and any other employees who were ad-
versely affected by changes in PDI or shift work whole
for any loss of earnings and benefits suffered as a re-
sult of our change, with interest.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge will not be used against him in any way.
SCHAUMBURG HYUNDAI, INC.
Daniel P. Murphy, Esq., for the General Counsel.
James F. Hendricks Jr., Esq., for the Respondent.
Roger N. Nauyalis, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This
case was tried in Chicago, Illinois, on January 31 and Feb-
ruary 1, 1995. The General Counsel’s consolidated and
amended complaint alleges that Respondent violated Section
8(a)(1) of the Act by various threats and acts of coercion, in-
cluding the solicitation of grievances that it intended to, and
later did, resolve in order to trump the organizational efforts
of the Charging Party Union (the Union), which had secured
signed authorization cards from all of Respondent’s seven
mechanics. The complaint also alleges that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by granting and with-
drawing benefits, by making changes in working conditions,
and by discharging a leading union advocate, Peter Goff, to
discourage union support. Finally, the complaint alleges that
Respondent violated Section 8(a)(5) and (1) of the Act by re-
fusing to recognize and bargain with the Union, despite its
loss in a Board-conducted election, because the unanimous
preelection authorizations of the employees were better re-
flections of their unadulterated views than the election re-
sults, which, the General Counsel asserts, should be set aside
because of the Respondent’s unfair labor practices. The Re-
spondent filed answers denying the essential allegations in
the complaint, and both sides filed posthearing briefs.
On the entire record in this case including especially the
testimony of the witnesses and my observation of their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTIONAL MATTERS
Respondent, a corporation with an office and place of
business in Schaumburg, Illinois, is engaged in the retail sale
and servicing of new and used cars. Respondent admits that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The union campaign and Respondent’s reaction
In early 1994, Respondent employed seven mechanics on
two separate shifts at its dealership in Schaumburg. In addi-
tion, the Respondent employed Ira Reisman as a team leader
on the second shift. He is an admitted supervisor and agent
within the meaning of the Act. Respondent’s management
also included Owner Rick Weissberg, Shop Foreman Steve
Hemmer, and Service Manager Dick Pittman, all of whom
were admitted or stipulated supervisors and agents.
As a result of a contact from one of the employees, Union
Business Representative Robert Keppler met with all of the
mechanics, including Team Leader Reisman, at a restaurant
in Schaumburg, on January 9, 1994. He and another business
agent distributed material setting forth the Union’s organiz-
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The recognition agreement contained no proposed terms and con-
ditions of employment; it stated that those would be the subject of
future bargaining.
2 The above is based on the uncontradicted testimony of Keppler.
He was corroborated as to the time of his visit by two second-shift
mechanics, who had started work at 3:30 p.m.
3 The above account of the January 10 meeting is a composite of
the basically mutually corroborative testimony of employees
Milewski and Goff. Although their accounts differ somewhat, as
would be expected when different people are candidly recounting the
same events, they were consistent in their essentials. Their testimony
was more detailed than that of Reisman and Weissberg, who also
testified about the meeting, and they were much more reliable and
truthful witnesses. Reisman could recall very little about the meet-
ing. Weissberg’s recall was also faulty and he could not provide
many details of the meeting. But, more importantly, his testimony
contained a premise that I cannot accept. He testified that the meet-
ing procedures, as well as individual authorization cards, to
all the people in attendance. Keppler told the employees
about the advantages of union representation and he ex-
plained the use of the authorization cards. He said that the
cards would be used to support the filing of an election peti-
tion with the Labor Board and to obtain recognition from the
Respondent directly. The cards themselves provided that the
signer authorized the Union ‘‘to act as my collective bargain-
ing agent with the company for wages, hours and working
conditions.’’
All the mechanics, including Reisman, signed cards and
turned them in to the union agents. They also signed a docu-
ment applying for union membership and paid a $25 initi-
ation fee to the Union. It is clear that all the participants at
this meeting thought Reisman was an employee eligible to
authorize the Union to represent him, including Reisman
himself. It turned out that they were wrong, but there is no
evidence that, either at this meeting or thereafter, Reisman
used his supervisory authority to coerce or encourage the
other mechanics to sign authorization cards or to support the
Union. There is no evidence that he even spoke at this meet-
ing. On the contrary, the record shows that he subsequently
turned against the Union and used his authority as an agent
of Weissberg to get employees to forsake the Union.
Based on the signed cards that he had secured from the
employees, Keppler filed an election petition with the Board
the very next day, January 10. A copy of the petition was
served on Respondent in due course, and, subsequently, an
election was scheduled for February 25, 1994, at the Re-
spondent’s facility.
The same day he filed the election petition, Keppler vis-
ited Respondent’s facility in order to request recognition. He
arrived at the facility shortly before 4 p.m. He spoke to Dick
Pittman, with whom he left a copy of a letter addressed to
Owner Rick Weissberg, stating that a majority of the me-
chanics had designated the Union as bargaining representa-
tive and requesting recognition. Keppler also gave Pittman a
copy of a recognition agreement and asked Pittman to give
the documents to Weissberg, who was not present at the
time.1
Keppler told Pittman not to change any of the mechanics’
terms and conditions and received permission to talk briefly
to some of the employees, which he did. Keppler then left
the facility.2
After Keppler left, Pittman came out to the service area
and said that the first-shift mechanics should not leave and
all the mechanics should gather for a meeting with Weiss-
berg in his office. Shortly thereafter, Weissberg arrived and
met with the mechanics. Also present were Steve Hemmer
and Reisman.
Weissberg started off the meeting by inviting employees to
state their problems. One of the mechanics mentioned a com-
plaint, with which many of the others agreed, that Steve
Hemmer was improperly crediting himself with more hours
than the rest of the mechanics.
Respondent operates under a so-called team system for
work assignment and pay purposes. All mechanics, including
Supervisors Hemmer and Reisman, pool their booked hours,
that is, hours assigned to certain repairs and service work,
and divided them equally. The hours were then multiplied by
the mechanics’ individual hourly rate, which ranged from
$14.40 to $17.50, to determine their pay. In late 1993, what
was essentially one team comprised of all mechanics was
split into two teams, one for each shift. The mechanics per-
formed various maintenance, installation and repair jobs, as
well as new car predelivery inspection work, so-called PDIs,
all of which carried specified booked hour amounts attrib-
utable to each. The booked hours for all of this work, includ-
ing the PDI work, went into the pooled hours for each team,
and the total hours were divided by the number of team
members to reach individual booked hours.
Hemmer kept records of the pooled hours and his assign-
ment of more hours to himself spawned the complaints that
surfaced at the January 10 meeting. At the meeting, someone
asked that the booking slips be studied and, when they were,
they confirmed the complained-of inequities. Hemmer gave
an explanation for crediting a greater number of hours to
himself by stating that he stayed later than the others doing
paper work.
Other complaints were aired at this meeting. Someone
mentioned the desirability of initiating a system of timecards,
which had not been used theretofore. Another employee
asked that payroll sheets be attached to paychecks so that the
mechanics could ascertain the hours credited to them.
Weissberg agreed to implement these suggestions.
Toward the end of the meeting, Weissberg asked if there
were any more questions and employee Bill Daly stated that
he wanted the Union to represent the mechanics. Weissberg
said that he had ‘‘no problem’’ with the Union and would
sign a union contract if that was what the employees wanted.
But he warned that if he ‘‘signed the papers,’’ the shop
would be run ‘‘strictly by union rules.’’ It appears that
Weissberg and several of the employees had previously
worked at area dealerships that had contracts with the Union.
Weissberg referred to a union contract that he held in his
hand.
In his response, Weissberg told the mechanics that a union
shop would mean the end of the team system and a change
to independent booking, that is, individual assignments. He
also said that, if the Union ‘‘came in,’’ not all the mechanics
would be considered journeymen and be paid journeymen’s
wages. Some would be considered semiskilled mechanics or
apprentices, he said. Weissberg then asked how many me-
chanics held union journeymen cards. Three or four people
raised their hands. He explained that only those ‘‘who had
journeymen’s cards would be considered journeymen.’’3
453SCHAUMBURG HYUNDAI, INC.
ing had been scheduled prior to January 10 and that he had no con-
versation with Pittman prior to the meeting. He also testified that the
employees had asked for the meeting. I reject this testimony which
was not corroborated and contrary to the weight of the other evi-
dence herein. For this and other reasons I have documented else-
where in this decision, I found Weissberg generally to be an unreli-
able witness.
4 The above is based on the testimony of Goff, Milewski, and
Reisman, whose testimony was compatible. To the extent that there
are differences, I credit the accounts of Goff and Milewski, who
were the more credible witnesses. Reisman’s testimony on this issue
was somewhat evasive, as it was on other issues.
5 Weissberg stated he would offer $11 or $12 per hour, but the
mechanics were presently earning anywhere from $14.40 to $17.50
per hour.
6 The above is based on Goff’s credible testimony about what tran-
spired at this meeting. Weissberg’s account of this meeting was very
sketchy and lacked the recall and detail in Goff’s account. To the
extent that he meant to deny he made the statements attributed to
him by Goff, I reject Weissberg’s testimony as the product of an un-
reliable and untruthful witness, as I have documented elsewhere in
this decision.
7 The above is based on Goff’s credible testimony. To the extent
that Reisman’s testimony differs from that of Goff, I reject it be-
cause of Reisman’s unreliability as a witness.
8 Reisman testified that he could not remember if there was any
PDI work that day, but documentary evidence reveals that there was
and that unskilled porters performed the work on January 26, 27,
and 28. Indeed, on Saturday, January 29, Supervisor Steve Hemmer
booked, and was separately paid for, 21.8 hours of PDI work.
9 Under Respondent’s team system, leaving work early, if a super-
visor approves, means simply that the employee is paid his pro rata
share for the booked hours to which he would be entitled. For exam-
ple, if a mechanic works half a day, he gets paid for half of his
share of the booked hours that day.
On January 13, 1994, the next payday after the January 10
meeting, the mechanics received a .63-hour adjusted increase
in their hours and a commensurate increase in pay. This re-
flected a corresponding decrease in Hemmer’s hours. In addi-
tion, the mechanics were provided with detailed payroll state-
ments with their paychecks, which they had not theretofore
been provided. The statements included the number of
booked hours and hours worked by each employee. More-
over, at about this time, the Respondent initiated the use of
timecards to keep track of the mechanics’ hours, in accord-
ance with the suggestion made at the January 10 meeting.
At some point in mid-January, after a conversation with
Owner Rick Weissberg, Supervisor Reisman circulated
among employees a petition prepared by Weissberg. The pe-
tition was addressed to the Union, and stated that the sig-
natories ‘‘hereby revoke their Union authorization cards ef-
fective immediately.’’ Reisman approached employees with
the petition, showed it to them, and stated that Weissberg
‘‘wanted to know if anyone wanted to sign it.’’4
2. The discharge of Goff
Peter Goff was a highly regarded second-shift employee
who replaced Supervisor Ira Reisman as team leader during
his absence. He was an active union supporter and refused
to sign the antiunion petition circulated by Reisman.
On January 21, Goff met with Owner Rick Weissberg in
the latter’s office about a pay discrepancy in his last pay-
check. Goff had asked for the meeting because he was not
credited properly by Reisman for working on the previous
Saturday, even though he had worked most of the day before
leaving due to an appointment of which he had notified
Reisman in advance. Pittman had agreed that Goff was to be
credited for the full day. Goff compared this to the complaint
about Hemmer aired at the January 10 meeting. Weissberg
agreed that the pay dispute should be resolved in Goff’s
favor.
Goff and Weissberg went on to discuss the recent adjust-
ment in pay, the Respondent’s team system and the union
campaign. Weissberg said that the team system ‘‘would be
out if the union came in.’’ Goff responded that this was not
necessarily true because, once a union was ‘‘voted in,’’ any
contract would have to be negotiated. Weissberg disagreed.
He said that, in negotiations, he would make a wage offer
at rates less than the mechanics were then earning and
‘‘would not have to negotiate up from that point.’’5
Weissberg also said that the employees would obviously
not be happy with his offer and would go out on strike and
that he would hire replacements in their stead. Weissberg
added that in July the employees would have to strike again
because that was when the Union’s standard agreement ex-
pired. He said that he ‘‘liked’’ the employees and did not
want to ‘‘get rid of’’ any of them. The conversation ended
with another discussion of union journeymen status similar
to that which took place in the January 10 meeting.
Weissberg asked Goff if he had a union journeymen’s card
and Goff said that he did. Weissberg then asked if the Union
would still recognize his card and Goff said that it would.
Weissberg then said that, in a union shop, some people
would be journeymen and some would not.6
On January 27, Goff reported for work as usual. It was
slow that afternoon and Reisman asked Goff to clean his
work area. Goff replied that he had already done so, and
added that he did not get paid for this work. This was true
since, under the team system of pay, the employees were
paid only on the basis of booked hours. In any event, Goff
did clean his work area that evening.7
Goff also asked either Reisman or Pittman if he could do
some PDI work on new cars that were ‘‘sitting outside.’’
This work, which was ordinarily performed by any mechanic
who had nothing else to do, was booked work, that is, work
for which a mechanic was paid. Goff was told he could not
do PDI work, even though it is clear, both from Goff’s
uncontradicted testimony and from documentary evidence,
that such work was available that day.8
Later that evening, Reisman asked Goff if he wanted to
go home and Goff agreed. Goff testified that he did not con-
sider this an order. And Reisman admitted that Goff might
have taken what he said as if ‘‘it was just slow and just go
home.’’ He testified, ‘‘I never said you were dismissed or
anything like that, and not to come back.’’9
Goff then went to change his clothes to get ready to go
home. As he was leaving the changing room, he ran into
Pittman, who asked where he was going. Goff said he was
going home and Pittman reminded him that the mechanics
were to clean their work areas. Goff said he had already
done so, but Pittman pointed to some parts that were sitting
on his workbench. The parts had been placed there by other
mechanics, and Hemmer had instructed Goff to leave them
alone. Goff responded to Pittman by stating that the parts
were Hemmer’s ‘‘fucking problem.’’ Since Pittman had
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Pittman did not testify in this proceeding so that portion of
Goff’s testimony dealing with Pittman is uncontradicted.
11 In view of this uncontradicted testimony as well as the
uncontradicted testimony that Pittman told Goff on the evening of
January 27 that his conduct was ‘‘not a problem,’’ I must find that
Pittman’s letter describing what happened on January 27 and rec-
ommending Goff’s dismissal was the product of Weissberg’s effort
to use a pretext to fire Goff. I cannot credit the hearsay account set
forth in Pittman’s letter.
12 The above findings concerning the January 28 meeting are based
on the uncontradicted testimony of Milewski. Hemmer did not testify
and Reisman, who did, said nothing about the meeting.
13 Reisman’s testimony on this point came in response to questions
from me. In his direct testimony, he denied announcing a lunchbreak
to the employees, contrary to the stipulation of the parties. This is
but one example of Reisman’s evasiveness and unreliability as a wit-
ness.
14 Jenssen’s testimony on this point is essentially uncontradicted.
Weissberg made general denials that he questioned employees and
stated that he could not recall promising employees a 401(k) plan.
I credit Jenssen’s testimony as clearer and more reliable.
15 Weissberg’s explanations for his several changes in the assign-
ment of PDI work do not ring true and I reject them. He said the
first change was instituted because customer satisfaction reports he
received shortly before the change indicated very low scores and
therefore he gave the work to his most skilled mechanics. This is
belied by the documentary evidence that unskilled porters performed
walked away in apparent anger, Goff called him when he got
home to apologize. Pittman accepted the apology and told
Goff that it was ‘‘okay’’ and ‘‘not a problem.’’10
The next day, January 28, Goff was fired by Weissberg at
a meeting in his office. He said that Goff was a detriment
to the team system. He also read from letters prepared and
signed by Pittman and Reisman at his request the night be-
fore to the effect that Goff had been insubordinate to them.
Weissberg rejected Goff’s appeal that he was a team player
and should not be fired.
In the next few days, Goff spoke to Pittman on the tele-
phone several times about his discharge. Goff’s uncon-
tradicted testimony is that Pittman told him that Weissberg
‘‘exploded the situation of the 27th into a firing.’’ Pittman
said that he did not think that the situation ‘‘would go that
far’’ and that Weissberg coerced him into signing the letter
in which he accused Goff of insubordination. He also said
that he had to be careful because ‘‘the union was breathing
down his neck.’’ Pittman also said that the incident was a
‘‘convenient situation’’ over which Goff could be fired be-
cause he was in ‘‘the majority of the yeses’’ and ‘‘they . . .
were a majority of the no’s.’’11
3. Other conduct leading to and immediately
following the election
On January 28, the day of Goff’s discharge, Steve
Hemmer announced, at a meeting of all mechanics, that
henceforth PDI work was to be performed only by two su-
pervisors, him and Reisman, and two employees, Milewski
and Novak. Not only were these the only mechanics that
would perform PDI work, but they were the only ones who
would be compensated for it. This was a change from the in-
clusion of PDI work under the team system of pay. In addi-
tion, the PDI work was to be performed before or after shop
hours and the payment of PDI work was listed separately on
the payroll and booking documents.
Also at the January 28 meeting, Reisman told the mechan-
ics that they could lose a lot more than the PDI work if they
kept ‘‘going with the [U]nion.’’ He said that Weissberg
could also take air conditioning installations and after-market
accessory work away from them.12
On February 7, 1994, Reisman announced to second shift
employees that they would have a scheduled 1-hour lunch
period between 7:30 p.m. and 8:30 p.m. Theretofore, there
was no official lunchbreak. Employees would simply eat
while they continued working. This change came about be-
cause employee Bill Daly had raised the matter with
Weissberg and Reisman in Weissberg’s office.13
In addition, on February 7, Hemmer announced to all the
mechanics that repair and service work would no longer be
assigned to mechanics on a first-come, first-served basis.
Thereafter, cars that came in during the day shift would be
repaired only by first shift employees and cars that came in
during the second shift would be serviced by second shift
employees. This change was implemented. As a result there
was less work for second shift employees since most cars
come in to the shop during the first shift. This also meant
less pay for the second shift mechanics since, under the team
system of pay, their total booked hours were pooled and di-
vided as a team.
About a week before the Board election, Weissberg ap-
proached employee Robert Jenssen at his workstation.
Weissberg asked Jenssen why he would ‘‘want the Union.’’
Jenssen replied that he wanted to keep his benefits, have a
retirement plan and union pay. Weissberg said that Jenssen
could make more money with him without the Union and
that he was ‘‘thinking about having a 401(k) plan’’ in about
a year.14
On February 25, 1994, pursuant to the January 10, 1994
petition and a January 28 stipulated election agreement, the
Board conducted an election in the following unit of Re-
spondent’s employees:
All full-time and regular part-time journeymen me-
chanics, apprentice mechanics, semi-skilled mechanics
and technicians employed by [Respondent at its
Schaumburg facility] . . . but excluding shop foremen,
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
Only four mechanics voted. The Union lost the election by
a 3-to-1 vote, but it filed timely objections to the results
based on Respondent’s alleged unfair labor practices.
Within a day or two after the election results were an-
nounced, Weissberg held a meeting with all the mechanics.
At the meeting, he announced a 75-cent-per-hour raise for all
the mechanics. According to employee Jenssen, Weissberg
prefaced his announcement by stating that he was glad that
the Union had been defeated.
Shortly thereafter, on March 7, 1994, as the documentary
evidence confirms, Respondent returned to its old preelection
practice of assigning PDI work to all mechanics. This in-
cluded assignment of the work to newly hired mechanics. In-
deed, still later, according to Weissberg, who had originally
changed the practice prior to the election because he wanted
his more skilled mechanics to perform it, this work was as-
signed exclusively to unskilled porters on a permanent
basis.15
455SCHAUMBURG HYUNDAI, INC.
PDI work the day before and the day after the change was an-
nounced. It is also belied by Weissberg’s assignment of the work to
newly hired mechanics, people whose ability to perform PDIs he
could not have known when he changed the assignment of PDI work
again about 10 days later. His explanation for the second change, a
postelection return to the old system of assigning the work to all me-
chanics, was allegedly based on a simple request by the mechanics
and their statement that they would do better. There was a third
change, assigning the work exclusively to porters, which was not ex-
plained by Weissberg, but rationalized by an assertion that customer
satisfaction scores improved thereafter. At this point, I lost his drift.
Not only was Weissberg’s testimony transparent and contradictory,
but Respondent failed to back up his testimony with copies of the
customer satisfaction ratings and reports that supposedly supported
his decisions and which, he said, were available. The failure to sub-
mit such documents warrants an inference that they did not support
his testimony. See Automobile Workers Union (Gyrodyne) v. NLRB,
459 F.2d 1329, 1336–1339 (D.C. Cir. 1972).
B. Discussion and Analysis
1. The general 8(a)(1) violations
a. The January 10 meeting
I find, in accordance with my credibility determinations,
that Weissberg called for the January 10 meeting after he re-
ceived notice that the Union had secured what it believed
was majority support from employees and requested recogni-
tion. The meeting was a response to the Union’s request for
recognition. Weissberg, Respondent’s highest ranking offi-
cial, asked employees to air their grievances, which he sug-
gested or implied would be resolved without need for a
union. There can be no doubt of the reason for the solicita-
tion of grievances in view of the timing of the meeting and
Weissberg’s expressed opposition to the Union when it was
specifically discussed later in the meeting. Shortly after the
meeting, Weissberg made the changes the employees wanted.
This included an upward adjustment in pay for all the rank-
and-file mechanics, the use of timecards and the inclusion of
payroll sheets along with the employees’ paychecks. In these
circumstances, it is clear that Respondent’s solicitation of
grievances with the implication that they would be resolved
without a union violated Section 8(a)(1) of the Act. See
Foamex, 315 NLRB 858 (1994).
Contrary to the General Counsel’s contention, however, I
can not find that Weissberg violated the Act in any other
way during the January 10 meeting. He did not unlawfully
threaten employees with more onerous working conditions,
stricter enforcement of work rules or loss of earnings; and
he did not unlawfully interrogate employees by asking the
employees how many of them carried union journeymen’s
cards.
First of all, it is clear, at least from Goff’s testimony, that
Weissberg was referring to a standard union contract with
which he and some employees were familiar because they
had worked in union shops. He held the contract in his hand
as he spoke. Thus, I find that Weissberg’s reference to the
possible demise of the team system and a change to inde-
pendent booking was simply a recognition that the Union did
not, in its existing contracts, recognize the team system as
it was utilized by Respondent. The General Counsel did not
submit copies of the union contract to refute this inference,
which I believe is a reasonable one on the evidence of
record. Nor was there any suggestion by Weissberg that this
change to an independent booking system would result in
more onerous working conditions. The only evidence cited in
this respect by the General Counsel was Milewski’s theoreti-
cal and subjective ‘‘understanding’’ that independent booking
might lead to favoritism. See page 11, footnote 5 of the Gen-
eral Counsel’s brief. In context, the reference to independent
booking was tied to something that would result from the
Union’s policy, as reflected in its agreements, not to some-
thing Weissberg would do on his own to retaliate against
employees. I shall therefore dismiss this allegation in the
complaint.
The General Counsel’s loss of earnings allegation is based
on Weissberg’s remarks—again based on his assessment of
the standard union contract—that, under a union contract, not
all mechanics would receive journeymen’s wages. Indeed,
not all employees had union journeymen’s cards, as the evi-
dence shows. Here again, Weissberg was not threatening that
he would take action to change anyone’s wages. The Re-
spondent’s existing pay system itself provided for a scale
that varied by as much as $3 per hour, depending, I presume,
on the level of skill or experience of the particular mechanic.
Considering here again the context of the union contract to
which Weissberg was referring, I cannot view Weissberg’s
remarks as a threat by him to cut the earnings of the me-
chanics if they chose a union to represent them.
For some of the same reasons, I cannot agree with the
General Counsel’s suggestion that Weissberg unlawfully
threatened stricter enforcement of work rules should the me-
chanics choose the Union. The General Counsel’s support for
this allegation comes primarily from Goff’s testimony that
Weissberg said, if the Union came in, there would be rules
that would have to be enforced and ‘‘he would have to fol-
low them explicitly.’’ Goff’s testimony in this respect was
followed immediately by the following statement: ‘‘He had
a union contract in his hand.’’ Here again, the context of
Weissberg’s remarks makes it clear that he was not going to,
himself, invoke stricter, or indeed any, new rules; it was the
Union that was going to insist on rules—not, incidentally,
stricter ones—as it had done in its other contracts. There was
no threat of retaliation in his remarks; indeed, there was real-
ly no reference to the strictness of any work rules the Union
might insist upon. In a footnote at page 36 of his brief, the
General Counsel also mentions Goff’s testimony that
Weissberg would follow a stricter tardiness policy if he initi-
ated the timecard program the employees wanted. The con-
text of this statement shows that it was divorced from any
discussion of the Union. Weissberg was simply questioning
whether the employees really wanted a timecard system be-
cause tardiness would then be manifest. He did not initiate
the proposal to utilize timecards and he did not threaten re-
taliation by more strictly enforcing tardiness rules because of
employee support of the Union. This complaint allegation
will also be dismissed.
Finally, the General Counsel asserts that, in this January
10 meeting, Weissberg unlawfully interrogated employees
about their union support. This assertion is based on
Weissberg’s question as to how many mechanics held a
union journeymen’s card. I cannot view this as a coercive
question. It was posed in the context of Weissberg’s argu-
ment that not all of the mechanics would gain journeymen’s
pay status under a union contract. His point was that the
union contract made distinctions. And some of the employees
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had worked under the union contract before being employed
by Respondent. The question was not posed in order to ob-
tain information that could be used later to pinpoint discrimi-
nation. Weissberg not ask which employees had signed cards
or which were union members; and he did not seek to ferret
out information about the Union’s majority status. He simply
wanted to disabuse employees of any pie-in-the-sky notions
that all mechanics would be earning the highest wages under
an existing union contract. Nor can I believe that any em-
ployee would reasonably view the question as coercive in the
context in which it was posed. In all the circumstances, I do
not find that Weissberg’s question was violative of the Act.
b. Circulation of the petition
The evidence demonstrates that Reisman, at Weissberg’s
behest, circulated a petition addressed to the Union asking
that employees be permitted to revoke their authorization
cards. It is clear that Reisman was acting not only as a su-
pervisor, which he was, but also as an agent for Weissberg.
He told the employees he approached that Weissberg had au-
thorized circulation of the petition and wanted to know if
anyone wanted to sign it. The petition was initiated and pre-
pared by Weissberg. Its circulation meshed with Respond-
ent’s earlier unlawful and coercive message that grievances
could be resolved without a union; in the petition Respond-
ent gave the employees a way out of the Union. Such con-
duct is clearly unlawful and violative of Section 8(a)(1) of
the Act. See Mini-Togs, Inc., 304 NLRB 664, 653 (1991).
c. The January 21 Goff-Weissberg meeting
The General Counsel alleges that, in the January 21 one-
on-one meeting between Weissberg and Goff, Weissberg vio-
lated the Act by suggesting that it would be futile to support
the Union and that a strike would be inevitable, threatening
discharge for engaging in union activities and interrogating
Goff as to his union status. Since the evidence concerning
the alleged unlawful interrogation in this meeting is virtually
identical to that dealing with the union journeymen question
on January 10, which I found was not unlawful, I reach the
same result here. I dismiss the allegation of unlawful interro-
gation. The General Counsel has proved however, the other
allegations of illegality in the January 21 meeting.
The evidence shows that Weissberg took the position, dur-
ing an extensive discussion of possible negotiations between
him and the Union, that he would propose what amounted
to a decrease in wages for the mechanics and would not
move from that position, thus forcing a strike during which
he would replace the employees. In the context of these re-
marks, his subsequent statement that he liked the employees
and would not want to ‘‘get rid of’’ them suggested the op-
posite. He was prepared to discharge employees whom he
would replace under the scenario he described. The pivotal
point made by Weissberg from which the parade of horribles
he described would flow was that he would bargain in such
a way as to force a strike and the loss of the mechanics’
jobs. He suggested his own intransigence by stating that he
would propose a pay cut and not move from that position.
He did not describe a situation where his hand would be
forced by inordinately high union demands or other matters
outside his control. Nor did he even suggest a business-relat-
ed reason for his pay cut proposal and subsequent intran-
sigence. This distinguishes what he said here from what he
said in the January 10 meeting about what might happen
under a specific union contract. And it brings his comments
within the scope of illegality. Here the clear implication was
that the threatened results would come from actions taken by
him and he made no pretense of suggesting that he would
bargain in good faith. See NLRB v. Gissel Packing Co., 395
U.S. 575, 618–620 (1969).
In these circumstances, I find that Weissberg’s remarks as
set forth above unlawfully suggested the futility of union rep-
resentation and the inevitability of a strike and unlawfully
threatened retaliation in the form of job losses, all in viola-
tion of Section 8(a)(1) of the Act. See Lear-Siegler Manage-
ment Service, 306 NLRB 393, 404 (1992); Baddour, Inc.,
303 NLRB 275 (1991); Autozone, Inc., 315 NLRB 115, 122–
123 (1994).
d. The interrogation of and the promise of
benefits made to Jenssen
About a week before the election Weissberg questioned
employee Jenssen as to why he would want the Union. His
question evoked Jenssen’s response that he thought he would
get better benefits with a union, including retirement bene-
fits. Weissberg then used the information he obtained
through his questioning by promising a retirement plan of his
own, a 401(k) plan. It is obvious that the promise was made
in order to discourage union support and the question was
meant to evoke information that Weissberg could use in
order to make an unlawful promise. It matters not that
Weissberg mentioned that he was ‘‘thinking about’’ the plan
or that it might be a year away. He mentioned the subject
because he wanted to offer something to Jenssen to get him
to change his mind about the Union. And Weissberg knew
what he was talking about; he was the owner of the Re-
spondent. This promise and interrogation was violative of
Section 8(a)(1) of the Act.
e. Reisman’s threat that work would be lost
On January 28, at a meeting during which another super-
visor announced a discriminatory change in PDI work as-
signments, Reisman specifically tied the change to the union
campaign. He said that, if the mechanics kept supporting the
Union, they would lose a lot more than PDI work. According
to Reisman, they would lose other work including installation
and accessory work. This was a clear threat of reprisal.
Moreover, the employees could have no doubt that he spoke
with authority on this occasion, especially given the timing
of the statement immediately after the announcement of the
loss of PDI work and the specific mention of the Union. The
employees also knew that Reisman was Weissberg’s agent in
circulating the antiunion petition. Reisman’s statement was a
clear and unlawful threat of retaliation in violation of Section
8(a)(1) of the Act.
2. The general 8(a)(3) and (1) violations
Shortly after the January 10 meeting, Respondent made
certain changes as a result of the unlawful solicitation of
grievances in that meeting. The employees received an in-
crease in hours, and in pay, to reflect a reduction in Super-
visor Hemmer’s hours. The Respondent also initiated a time-
card system and provided payroll information that the em-
457SCHAUMBURG HYUNDAI, INC.
ployees requested in the January 10 meeting. There is no
doubt that the motivating factor in the promulgation of these
changes and benefits was Respondent’s attempt to discourage
union activity and support. Indeed, Respondent offers no le-
gitimate reason for these changes, except to argue that the
employee grievances that were admittedly resolved by the
changes were not associated with union activity. That argu-
ment—essentially that the January 10 meeting was held with-
out Weissberg knowing about the Union’s recognition re-
quest that same afternoon—was based on Weissberg’s dis-
credited testimony. In any event, when the changes were ac-
tually implemented, Weissberg clearly had knowledge of the
onset of the Union. These changes were unlawfully moti-
vated and thus violative of Section 8(a)(3) and (1) of the
Act.
The January 28 announcement and implementation of the
change in the assignment of PDI work was also discrimina-
tory. Prior to the change all mechanics performed PDI work
and it was a part of their pay. After the change only certain
mechanics performed the work and were paid for it.
Reisman’s unlawful threat that if the employees stayed with
the Union they could lose more than the PDI work is a vir-
tual admission that this decision was motivated by antiunion
considerations. Indeed, the failure to permit Goff to perform
PDI work the day before when it clearly was available
presaged the change. No reason was offered to Goff on Janu-
ary 27 or to the employees on January 28 for this change
in assignment. Goff’s discharge on January 28 was discrimi-
natorily motivated, as I find hereafter, and it was related in
part to the discriminatory reassignment of PDI work.
Weissberg gave an explanation for the change in the as-
signment of PDI work at the hearing, but, as I stated in foot-
note 15 above, his testimony is not credible. Indeed, his ex-
planation is clearly pretextual and this rather strengthens the
inference of discrimination. Respondent’s contention that not
all the mechanics were denied PDI work is unavailing. A
mass layoff can amount to unlawful discrimination without
regard to whether some antiunion people are carried along.
The theory of this alleged violation was not that the selection
of the employees who lost PDI work was discriminatory, but
that the change itself was discriminatory. The evidence here-
in clearly shows that there was a change in work assignment,
that some employees lost work because of it—Jenssen testi-
fied that he lost 20 percent of his work because of the loss
of PDIs, and that Respondent’s decision to change the PDI
assignments was unlawfully motivated. In these cir-
cumstances, I find that the General Counsel has proved that
a reason for the change was unlawful and has also proved
that the Respondent’s explanation was pretextual and there-
fore not a valid defense under the Wright Line test. See Ma-
rina Associates, 296 NLRB 1116, 1123 (1989), and cases
there cited.
Also alleged as discriminatory is the announcement and
implementation of another benefit, the 1-hour lunch period
on February 7. In view of the other changes that were an-
nounced and implemented during the union campaign for
discriminatory reasons, I find that the General Counsel has
proved that a reason for this change, actually a benefit, was
likewise discriminatory. This places the burden on Respond-
ent to show that the benefit would have been implemented
even in the absence of union considerations. Respondent has
not persuasively made such a showing. Both Reisman and
Weissberg said that the benefit was granted because em-
ployee Daly asked for it. But this begs the question. No rea-
son was offered as to why it was granted at this time just
because an employee asked for it. Indeed, the likely infer-
ence, and the one I make, is that Daly asked because he
knew that Respondent had responded favorably to other em-
ployee grievances as a result of the union campaign. And it
is also likely that Respondent acted on Daly’s request be-
cause this was another favor it could grant to demonstrate
that a union was not necessary. In view of Respondent’s
other unfair labor practices, the timing of this benefit and
Respondent’s inadequate explanation, I find that Respond-
ent’s announcement and implementation of a 1-hour lunch
period a few weeks before the election was discriminatory
and violative of Section 8(a)(3) and (1) of the Act.
The final alleged preelection discriminatory change is Re-
spondent’s announcement and implementation of a change in
assigning work on the basis of when cars were brought in
to the shop. Cars brought in during the first shift were han-
dled only by first-shift mechanics and cars brought in during
the second shift were handled only by second-shift mechan-
ics. The second-shift mechanics suffered a loss in work and
in pay because of this change since fewer cars are brought
in during second shift hours. This change demonstrated Re-
spondent’s power to adversely affect employees and to di-
vide the work force in the midst of a union campaign, and,
in view of the other discriminatory changes made at this
time, was itself also discriminatory. It would not have hap-
pened in the absence of a union campaign. Indeed, Respond-
ent’s witnesses offered no explanation for this change. In
these circumstances, I find that this change was also dis-
criminatory and violative of Section 8(a)(3) and (1) of the
Act.
The General Counsel also alleges that Respondent’s an-
nouncement and grant of a 75-cent-per-hour raise for all me-
chanics immediately after the Board election was discrimina-
tory. This clearly was a reward for the employees’ rejection
of the Union, as indicated not only by the timing of the ac-
tion but also Weissberg’s remark in the same meeting that
he was glad the Union lost the election. No other explanation
was offered for the raise or for the timing of its announce-
ment either at the time or in the unfair labor practice hearing.
The employees were thus left with the clear impression that
further benefits would be forthcoming if they continued to
reject the Union. Indeed, the time within which to file objec-
tions had not yet run. Because of the other unfair labor prac-
tices committed by Respondent, it should have been obvious
that objections would be filed, as they were, and a new elec-
tion was at least within the realm of possibility. In these cir-
cumstances, Respondent’s announcement and grant of a wage
increase immediately after the election as a reward to the
employees for having rejected the Union is clearly discrimi-
natory and violative of the Act. See NLRB v. Ralph Printing
Co., 379 F.2d 687, 692 (8th Cir. 1967).
3. The discharge of Goff
I find that Respondent discharged Goff in order to discour-
age union activity and support. Goff was a known union ad-
herent who had, 1 week before his discharge, engaged Owner
Rick Weissberg in a private discussion about union represen-
tation. In that meeting, Weissberg firmly stated his opposi-
tion to the Union and Goff defended the notion of union rep-
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 I reject Reisman’s general, vague and uncorroborated testimony
that he had problems with Goff’s work prior to the discharge. Not
only was there no documentary evidence supporting Reisman’s testi-
mony, but it is inconsistent with Respondent’s utilization of Goff as
a team leader in Reisman’s absence.
resentation. Weissberg unlawfully threatened that it would be
futile to support the Union because he would be intransigent
in bargaining, and force a strike that would result in his re-
placement of the employees, whom he would have to ‘‘get
rid of.’’ Weissberg also made it clear that he viewed the
Union as a threat the team system. Goff’s discharge was un-
usual because he was a highly regarded employee who would
not be discharged under normal circumstances. He filled in
for Supervisor Reisman in the latter’s absence and he had an
unblemished record with no warnings or complaints about
his work. The record contained written warnings and com-
plaints against employees, but there were none, prior to the
discharge, in Goff’s file.16
The evidence shows that Respondent seized upon a single
incident on the afternoon and evening of January 27 as a pre-
text to mask its discrimination. Pittman admitted as much to
Goff when he said that Respondent used the incident as a
convenient way to rid itself of Goff because he was in the
‘‘yes’’ category, an obvious reference to Goff’s union sup-
port, particularly since Pittman mentioned the extra care
taken in forcing Pittman to document Goff’s alleged impro-
priety due the presence of the Union. Reisman confirmed
that he also was asked to document his recommendation for
discharge at an unusual session with Weissberg the very
evening of the incident. I hardly think Weissberg would have
gone to all this trouble absent the union campaign.
Weissberg’s testimony is almost as damning since he railed
on the witness stand about Goff not working well with his
team and having a ‘‘bad attitude, euphemisms, I find, in the
circumstances of this case, for union animus. Incredibly,
Weissberg also testified that, during the termination interview
on January 28, Goff used profanity toward Reisman and Pitt-
man and said he ‘‘was going to do what he wanted and how
he wanted, and I wasn’t going to do anything about it.’’ Not
only was this unsupported by Reisman, who also testified
about this meeting, but it is inherently implausible. If Goff
had indeed ranted like this at a meeting with his employer,
it is obvious that Respondent would have used Goff’s alleged
outburst as a reason for the discharge because it would have
justified immediate termination without regard to what hap-
pened the night before.
It is also clear that the incident of the night before would
not have warranted termination absent the union campaign
and Goff’s union support. Pittman essentially said that Re-
spondent used the incident as a pretext. And Reisman did not
send Goff home for disciplinary reasons. Goff was permitted
to leave early because there was no work available to him.
Reisman himself admitted that what he told Goff could have
been interpreted as simply permitting Goff to go home be-
cause work was slow. Indeed, Respondent withheld from
Goff PDI work that was clearly available that evening. Be-
ginning the next day, Respondent discriminatorily withheld
that work from all but selected mechanics.
As a result of his being denied PDI work and not having
anything else to do, Goff was asked to clean his work area,
which he did. He did make two arguably objectionable com-
ments to his supervisors. He told Reisman that he was not
paid for cleaning his work area, which was true; and he used
an obscenity toward Pittman when he explained that several
parts on his workbench were not his responsibility, which
was also true since he had been told by another supervisor
not to move them. Goff apologized to Pittman that very night
for his harsh remarks and the apology was accepted. There
was no insubordination. Goff did what he was supposed to
do and he was prevented from doing available PDI work
which was discriminatorily reassigned the very next day.
Even considering the two arguably objectionable com-
ments devoid of context, it is also clear that Goff was sub-
jected to disparate treatment. The General Counsel submitted
uncontroverted evidence of similar incidents—even more se-
rious—where the employees involved were treated more le-
niently than Goff. In December 1993, Milewski was initially
suspended for 1 week for refusing to report to work one day
without calling in. But that suspension was rescinded. In
June 1994, employee Tom Jundt was sent home and issued
a written warning for initiating a ‘‘heated verbal altercation’’
with his supervisor and refused to return to his work station
‘‘continuing to argue,’’ an offense for which he was sent
home. Jundt was not suspended or discharged. In contrast, I
have found that Goff did not refuse to perform an assigned
task; he had cleaned his work area. He simply made snide
remarks and uttered an obscenity. In any event, it is clear
that Goff was treated differently than other employees who
actually refused the orders of their supervisors. I can only
conclude that this disparate treatment supports the inference,
which I make, that Respondent wanted to make an example
of Goff in order to discourage union activity.
In sum, the General Counsel has proved that a reason for
Goff’s discharge was discriminatory and he has also proved
that Respondent’s reason for the discharge was a pretext. Ac-
cordingly, the General Counsel has satisfied his burden under
the Wright Line test and proved that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging Goff. See
Marina Associates, supra.
C. The Invalidity of the February 25 Election
As I have indicated, the Union filed objections to the
Board-conducted election that it lost. The objections essen-
tially paralleled the unfair labor practices that I have found.
Because these unfair labor practices interfered with the
Board election, I find that the election of February 25, 1994,
was not free and fair and I shall recommend that it be set
aside.
D. The 8(a)(5) and (1) Violations and the Bargaining
Order Remedy
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to recognize and
bargain with the Union since January 10, 1994, and by mak-
ing unilateral changes in wages, benefits, and terms and con-
ditions of employment thereafter. The validity of these alle-
gations turns on whether a bargaining order is an appropriate
remedy for Respondent’s other unfair labor practices found
herein, within the meaning of NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969). The General Counsel contends that Re-
spondent’s unfair labor practices were so serious an impedi-
ment to free choice that they should be remedied by issuance
459SCHAUMBURG HYUNDAI, INC.
of a bargaining order that reflects the Union’s authorization
card majority.
In Gissel, the Supreme Court approved the issuance of a
bargaining order based on a union having secured majority
status through authorization cards where an employer’s un-
fair labor practices are so outrageous and pervasive that they
could not be cured by traditional remedies and a fair election
was therefore impossible, or where the unfair labor practices
are less serious but ‘‘the possibility of erasing the effects of
past practices and of ensuring a fair election . . . by the use
of traditional remedies, though present, is slight and em-
ployee sentiment once expressed through cards would, on
balance, be better protected by a bargaining order.’’ 395 U.S.
at 614.
The parties agree that the election unit of mechanics is an
appropriate one. I find that, as of January 10, 1994, that unit
contained 7 employees, all the mechanics except Hemmer
and Reisman, who were supervisors. The General Counsel
submitted evidence that all seven had signed union authoriza-
tion cards. Indeed, all had applied for union membership and
paid an initiation fee. The Union’s representative status is
thus established.
I also find that, because of Respondent’s unfair labor prac-
tices, the chances of a fair election after use of traditional
remedies would be slight and, on balance, employee senti-
ment as expressed above would be best protected by a bar-
gaining order. Respondent’s owner, Rick Weissberg, went
after the Union’s unanimous employee support right from the
start. He addressed employees immediately after being noti-
fied of the Union’s recognition request and solicited griev-
ances with the suggestion that they would be remedied to ob-
viate the need for a union. He went further and granted bene-
fits and made changes suggested by the employees. He also
made threats that he would be an intransigent bargainer who
would force a strike and rid himself of the employees
through the use of replacements. He announced and granted
benefits and made other significant job changes, all for dis-
criminatory reasons. And he discriminatorily discharged 1 of
the 7 employees in the unit and granted all of the remaining
employees a pay raise immediately after the Board election
to reward them for rejecting the Union. This postelection
raise is especially destructive of employee rights because it
demonstrates that the Respondent is willing and able to use
its economic power to insure the election result it wants. Nor
can this violation adequately be remedied. The Board does
not order the rescission of unlawfully granted raises or bene-
fits. Over a year has already passed since the unfair labor
practices occurred and Respondent has made no effort to
remedy them. Respondent’s unfair labor practices touched all
the employees in a small unit. They will undoubtedly live on
in the lore of the shop, particularly since the same managers
and supervisors who committed them remain. Indeed, most
of the unfair labor practices were committed, either directly
or indirectly, by the owner of the Respondent. In these cir-
cumstances, I find that the unfair labor practices amount to
hallmark violations that require a bargaining order. See
Gupta Permold Corp., 289 NLRB 1234, 1258–1259 (1988);
America’s Best Quality Coatings Corp., 313 NLRB 470,
471–472 (1993), enfd. 44 F.3d 516 (7th Cir. 1995) (Nos. 93-
4039 et al.); NLRB v. Don’s Olney Foods, 870 F.2d 1279,
1286 (7th Cir. 1989).
In accordance with Board precedent, the bargaining obliga-
tion herein runs from the date, after the Union establishes its
majority, that Respondent embarked on its unlawful conduct.
Here that date is January 10, 1994. Thus, Respondent’s
grants of benefits, changes in working conditions and other
discriminatory actions found violative of Section 8(a)(3) and
(1) of the Act also amount to unilateral changes in wages,
hours, and terms and conditions of employment in violation
of Section 8(a)(5) and (1) of the Act. See Lapeer Foundry
& Machine, Inc., 289 NLRB 952 (1988).
CONCLUSIONS OF LAW
1. By soliciting grievances from employees and implicitly
promising to resolve them without a union, circulating a peti-
tion for employees to revoke their union authorization cards,
suggesting the futility of union representation and the inevi-
tability of a strike and threatening retaliation in the form of
job losses, and promising benefits to and interrogating em-
ployees, Respondent violated Section 8(a)(1) of the Act.
2. By granting increases in hours, instituting a timecard
program and issuing payroll sheets in response to unlawfully
solicited employee grievances, announcing and implementing
changes in PDI and other work assignments, announcing and
instituting a 1-hour lunch period, and announcing and imple-
menting a 75-cent-per-hour raise immediately after a Board
election to reward employees for rejecting the Union, Re-
spondent discriminated against employees to discourage
union activities and thus violated Section 8(a)(3) and (1) of
the Act.
3. By discriminatorily discharging employee Peter Goff in
order to discourage union activities, Respondent violated
Section 8(a)(3) and (1) of the Act.
4. A majority of Respondent’s employees in the following
appropriate unit selected the Union as their bargaining agent
as of January 10, 1994:
All full-time and regular part-time journeymen mechan-
ics, apprentice mechanics, semi-skilled mechanics and
technicians employed by [Respondent at its Schaum-
burg facility] . . . but excluding shop foremen, office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
5. By committing the violations set forth in conclusions 1,
2, and 3 above, Respondent interfered with the election of
February 25, 1994, thus requiring the election to be set aside.
6. By committing the violations set forth in conclusions 1,
2, and 3 above, Respondent rendered unlikely the possibility
of holding a fair election after the use of traditional remedies
and, on balance, employee sentiment as expressed by the em-
ployees’ selection of the Union on January 10, 1994, would
be better protected by the issuance of a bargaining order.
7. By refusing to recognize and bargain with the Union on
and after January 10, 1994, and making unilateral changes in
wages, hours, and terms and conditions as described in con-
clusion 2 above, Respondent has violated Section 8(a)(5) and
(1) of the Act.
8. The above violations are unfair labor practices within
the meaning of the Act.
9. Respondent has not otherwise violated the Act.
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Because of the severity of the unfair labor practices I shall rec-
ommend a broad order within the meaning of Hickmott Foods, 242
NLRB 1357 (1979).
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
19 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
National 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.’’
THE REMEDY
In addition to recommending the customary cease-and-de-
sist Order, notice-posting requirements, and certain affirma-
tive remedies, including a bargaining order, I will rec-
ommend that Respondent rescind the changes it unlawfully
implemented to the detriment of employees, that is, the
changes involving PDI and shift work and restore the status
quo ante. It does not appear that other unlawfully imple-
mented changes need to be remedied by a restoration order
and the General Counsel does not request one. Still others,
such as pay raises, were benefits which the Board does not
rescind, and nothing in the recommended Order should be
construed as requiring a rescission of benefits granted. Of
course, the subject matters of all the changes are bargainable
issues. I will also recommend that Respondent offer imme-
diate and full reinstatement to employee Peter Goff to his
former job or, if that job no longer exists, to a substantially
equivalent position and make him whole for any loss of earn-
ing or benefits lost as a result of the discrimination against
him. Employees who suffered from the discriminatory
changes involving PDI and shift work should also be made
whole for their losses. The backpay is to be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987).17
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The Respondent, Schaumburg Hyundai, Inc., Schaumburg,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with the
Union as the exclusive collective-bargaining representative of
its employees in the following appropriate unit:
All full-time and regular part-time journeymen mechan-
ics, apprentice mechanics, semi-skilled mechanics and
technicians employed by [Respondent at its Schaum-
burg facility] . . . but excluding shop foremen, office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
(b) Soliciting grievances from employees and implicitly
promising to resolve them without a union.
(c) Circulating a petition for employees to revoke their
union authorization cards.
(d) Suggesting the futility of union representation and the
inevitability of a strike and threatening retaliation in the form
of job losses because employees support a union.
(e) Promising benefits to employees in order to discourage
union support.
(f) Coercively interrogating employees about their union
activities.
(g) Discriminating against employees in order to discour-
age union activities by granting increases in hours, instituting
a timecard program and issuing payroll sheets in response to
unlawfully solicited employee grievances, announcing and
implementing changes in PDI and other work assignments,
announcing and instituting a 1-hour lunch period, and an-
nouncing and implementing raises to reward employees for
rejecting the Union.
(h) Discharging or otherwise discriminating against em-
ployees to discourage union activities.
(i) Announcing and implementing changes in wages,
hours, and terms and conditions of employment without first
giving the Union a chance to bargain over such changes.
(j) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively in good
faith with the Union as the exclusive bargaining representa-
tive of the employees in the above-described unit, the rec-
ognition to be retroactive to January 10, 1994, and embody
any resulting agreement in a written and signed document.
(b) Rescind the unlawfully implemented changes in PDI
and shift assignments and return those assignments to the sit-
uation that existed as of January 10, 1994.
(c) Offer Peter Goff immediate and full reinstatement to
his former job or, if that job no longer exists, to a substan-
tially equivalent job, without prejudice to his seniority or any
other rights or privileges, and make him and any other em-
ployees who were adversely affected by discriminatory
changes in PDI or shift work whole for any loss of earnings
and benefits suffered as a result of Respondent’s unlawful
discrimination in the manner set forth in the remedy section
of this decision.
(d) Remove from its files any reference to the discharge
of Peter Goff, and notify him, in writing, that this has been
done and that evidence of this unlawful action will not be
used as a basis for future personnel actions against him.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its facility in Schaumburg, Illinois, copies of the
attached notice marked ‘‘Appendix.’’19 Copies of the notice,
on forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
461SCHAUMBURG HYUNDAI, INC.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS ALSO ORDERED that the election of February 25,
1994, in Case 13–RC–18838 is set aside.