Spielman Motor Sales, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1960

127 N.L.R.B. 322 (N.L.R.B. 1960)

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spielman Motor Sales, Inc. and Local 259, United Automobile,
Aircraft and Agricultural Implement Workers of America,
AFL-CIO. Case No. 2-CA-6358. April 22, 1960
DECISION AND ORDER
On December 28, 1959, Trial Examiner Eugene E. Dixon issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report
and the Respondent filed a, supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner with the additions indicated z
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
,of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Spielman Motor
Sales, Inc., Brooklyn, New York, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Threatening or interrogating its employees concerning their
membership or activities on behalf of Local 259, United Automobile,
i As the clear preponderance of all the relevant evidence does not demonstrate that the
Trial Examiner's credibility findings are incorrect, we adopt them. Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd. 188 F. 2d 362 (CA. 3). In rejecting Respondent's
version of the discharges, we note particularly that the complainants, who were em-
ployed in the new car department, were discharged almost immediately upon Respondent's
acquiring knowledge of their union adherence, at a time when the new car department
was preparing automobiles for deliveries which were being made on an above-normal
basis, and the further fact that, under Respondent's version, the decision to discharge
the complainants on January 21 was made on January 19, but not communicated to
Foreman Torebka of the new car department until about the very moment of the dis-
charges at the close of the workday on January 21, an unlikely sequence of events in
our opinion
2 The General Counsel has excepted to the Trial Examiner's failure to require in his
recommendations that Respondent preserve and make available to the Board, upon re-
quest, all records necessary to analyze the amount of backpay due the complainants
herein. We find merit in this exception and have added such a requirement in our Order.
127 NLRB No. 35.
SPIELMAN MOTOR SALES, INC. 323
Aircraft and Agricultural Implement Workers of America, AFL-
CIO, or any other labor organization, in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8 (a) (1) of the
Act.
(b) Curtailing or prohibiting the wearing by its employees of
union caps or buttons or other insignia indicating their union affilia-
tions.
(c) Discouraging membership of any of its employees in Local
259, United Automobile, Aircraft and Agricultural Implement Work-
ers of America, AFL-CIO, or any other labor organization, by dis-
charging any employees, or in any other manner discriminating
against any employee in regard to his hire, tenure, or any term or
condition of employment, except as authorized by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization; to form,
join, or assist any labor organization; to join or assist Local 259,
United Automobile, Aircraft and Agricultural Implement Workers
of America, AFL-CIO, to bargain collectively through representatives
of their own choosing; to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection; or to
refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Ralph Kristiansen, Charles Johnson, James Brown,
and Matthew Bavuso immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their sen-
iority or other rights and privileges, and make them whole for any
loss of earnings they may have suffered by reason of the Respondent's
discrimination against them, in the manner set forth in that section
of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board, or its
agents, for examination and copying, all payroll records, social se-
curity 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.
(c) Post at its premises in Brooklyn, New York, copies of the
notice hereto marked "Appendix." a Copies of said notice, to be
3In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnished by the Regional Director for the Second Region (New
York, New York), shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent immediately
upon receipt thereof, and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the aforementioned Regional Director for the Second
Region, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relatfions Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Local 259, United
Automobile, Aircraft and Agricultural Implement Workers of
America, AFL-CIO, or any labor organization, by discharging
any of our employees or discriminating in any other manner in
respect to their hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT threaten or interrogate employees concerning their
union membership or activities.
WE WILL NOT curtail or prohibit the wearing by our employees
of union caps or buttons or any other insignia indicating their
union affiliations.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form labor organizations, to join or assist Local 259,
United Automobile, Aircraft and Agricultural Implement
Workers of America, AFL-CIO, or any other labor organization,,
to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to^
refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership,
in a labor organization as a condition of employment, as author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL offer to Ralph Kristiansen, Charles Johnson, James,
Brown, and Matthew Bavuso immediate and full reinstatement
to their former or substantially equivalent positions, without
SPIELMAN MOTOR SALES, INC. 325
prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay suffered as a result of the
discrimination against them.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members in good standing of Local 259, or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
SPIELMAN MOTOR SALES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed January 3, 1959, by Local 259, United Automobile, Aircraft
and Agricultural Implement Workers of America, AFL-CIO, herein called the
Union, a representative of the General Counsel of the National Labor Relations
Board, herein called the General Counsel and the Board, issued a complaint signed
by the Board's Regional Director for the Second Region (New York City) alleging
that Spielman Motor Sales, Inc., of Brooklyn, New York, herein called the Com-
pany or the Respondent, had committed unfair labor practices within the meaning
of Section 8(a),(1) and (3) of the National Labor Relations Act, as amended (61
Stat. 136), herein called the Act.
The complaint alleged that Respondent, on or about January 20 and 21, 1959,
by its supervisor, Alexander Torebka, "interrogated its employees concerning their
membership in, activities on behalf of and sympathy in the Union," and "prohibited
its employees from wearing insignia with the inscription of the Union while at
work"; and that Respondent on or about January 21, 1959, discharged Matthew
Bavuso, James Brown, Charles Johnson, and Ralph Kristiansen "because said em-
ployees joined and assisted the Union and engaged in other concerted activities for
the purpose of collective bargaining or mutual aid or protection." Respondent's
answer denied any violations of law.
Pursuant to notice, a hearing was held on various dates between June 8 and 29,
1959, at New York City before the duly designated Trial Examiner. All parties
were represented by counsel and were afforded full opportunity to participate in
the hearing, to be heard, to examine and cross-examine witnesses, and to introduce
relevant evidence. The General Counsel argued the issues orally at the end of the
hearing, and Respondent filed a brief. After Respondent had filed its brief, it
moved to reopen the hearing for the purpose of showing that Charles Johnson, one
of the complaining witnesses, had been "indicted by the Bronx County, N Y., Grand
Jury for grand larceny in that he is alleged to have collected welfare payments
from the New York City Department of Welfare while working for the employer
herein, having failed to disclose to the said Department of Welfare the fact that he
was employed or the amount of his wages." The Charging Party filed an opposition
to the motion. The motion was denied.
Upon the entire record in the case, and from my observations of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and at all times material herein has been, a corporation duly
organized under and existing by virtue of the laws of the State of New York, main-
taining its principal office and place of business at 220 Greenpoint Avenue and 40
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Provost Street, Brooklyn, New York, and various other places of business, ware-
houses, and other facilities in the State of New York where it is engaged in the
sale and service of new and used automobiles, trucks, and related products During
the year 1958, Respondent, in the course and conduct of its business operations,
performed services and sold and distributed products at said places of business valued
in excess of $3,500,000 of which products valued in excess of $250,000 were shipped
from said places of business in interstate commerce directly to States of the United
States other than the State of New York Respondent is, and at all times material
has been, engaged in commerce within the meaning of Section 2(6) and (7) of
the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is and at all times material herein has been a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Ralph Kristiansen was hired by Respondent in 1957 as a "co-op" student of
Brooklyn High School of Automotive Trades . As such he combined his schoo'ing
with work for Respondent alternating one with the other weekly . Upon his gradu-
ation in June 1957 , he began working full time at $ 1 an hour for Respondent in its
,,new car get ready " department I installing accessories such as radios , heaters, power
steering, and brakes At first he worked only on cars being readied for rental by
Respondent 's Trans-Vehicle , Inc , enterprise ( which cars are referred to herein as
TVI's or rental cars ), but later as he became more experienced and adept he worked
also on "customers ' cars," i e., those purchased by the individual buying public.
Up to the time his employment with Respondent terminated on January 21, 1959,
he had received three wage increases-two of 5 cents an hour and one of 10 cents
an hour On the occasion of the latter he was told "not to tell anybody because
some of the other fellows only received a nickel " On December 10, 1958, at
Kristiansen 's request to aid him in effectuating a transfer from flying in the Air
Force Reserves to the motor pool , Respondent gave him a commendatory letter
saying in part , "He has performed his duties as a mechanic well, and we recommend
him highly."
According to Kristiansen 's testimony , he received no complaints about his work
other than "minor" matters in connection with factory defects and which were
common to all the employees On January 8, 1959 , Kristiansen was introduced by
Luis Colon, another employee , to Union Representative Jerry Ruiz during the lunch
hour at a diner near the company premises He told Ruiz that the men in the shop
"felt very strong l y about the union ." At this time Kristiansen signed an applica-
tion for membership in the Union and was given additional blank application cards.
That evening after work Kristiansen began passing out the cards to the employees in
the new car department Within a matter of days all the employees in the new car
department except four had returned signed cards to Kristiansen.
Up to January 20, Kristiansen had lunched with Ruiz a couple of times On that
date he and two other employees met Ruiz at lunch again Ruiz gave him and
Luis Colon , one of the other employees , caps to wear bearing the inscription "UAW,
CIO-AFL." When he returned to work at 12:20 p m , Kristiansen was wearing the
union cap. Al Torebka , supervisor of the new car department , saw the cap on
Kristiansen and told him to take it off Kristiansen refused Torebka then told him
that "this wasn't a union shop" and that he was not "allowed to wear it here "
Kristiansen showed him his union membership card. Torebka said, "We will see
about this" and asked Kristiansen if he "was the one who had caused all the trouble."
Kristiansen just shrugged his shoulders This testimony was corroborated by Charles
Johnson who added in his version that this incident occurred in the presence of
"practically the whole shop . . they weren 't talking low "
That night after work Union Representative Ruiz called for Kristiansen at the
shop in his car and drove him to the union office where Kristiansen got some union
buttons which carried the inscription "UAW-member " The next morning Kristian-
sen gave the buttons to the prounion employees as they entered the shop. Most, if
not all , of the employees who received buttons from Kristiansen pinned them on their
clothing and went to work thus displaying their union adherence . In addition to
wearing that type of button , Kristiansen also wore another button bearing the
inscription , "Steward-U.A.W."
1 For convenience this will hereafter be referred to as the new car department
2 The evidence shows and I find that the standard of performance required for work on
customers' cars was higher than for TVI's.
SPIELMAN MOTOR SALES, INC. 327
Sometime during that morning Kristiansen had occasion to speak to Torebka about
an assignment Notwithstanding that the conversation between the two took place
face to face, Torebka made no mention of Kristiansen 's union buttons? Later
that day around lunch time when Kristiansen went to fill out a production ticket
he noticed that his timecard was missing from the rack as were a couple of others.
He asked Torebka if his card "would be back by quitting time." Torebka said he
did not know ; then he told him "to go and see David Giocalone ," assistant service
manager . Kristiansen did not see Giocalone until about 5 o'clock that afternoon
when he was on his way to pick up some parts for installation . Giocalone came up
to him and said, "I will have to pay you off ." Kristiansen asked why . Giocalone
said, "There are too many complaints about your work," and told Kristiansen that
he could leave immediately although the shift still had about 45 minutes to run
Matthew Bavuso's testimony reveals that he was hired March 24, 1958, by
Giocalone after being referred to Respondent by Brooklyn High School of Auto-
motive Trades. He, too, installed equipment on cars . Like Kristiansen , he first
worked on TVI's but ultimately was transferred to customers' cars He received
one increase of 10 cents an hour after about 6 months . According to his testimony
the only complaints he received about his work were "just little minor things, like
factory faults that they had with the signal lights, little things " He never had any
warnings regarding the quality of his work nor any intimation of discharge
He signed a union card on January 13 , given him by Kristiansen . On January
21, he wore a union button at work which he had received from Kristiansen that
morning While working on a car that morning Torebka told him and Giordano
that the first one to complete the job he was on could deliver a car to another
dealer .4 As he was completing his work a fellow employee told him "no use rushing
any more because Giordano completed his job." Then he noticed that Giordano's
car was still jacked up and unfinished . According to Bavuso's testimony he went
into Torebka 's office and asked him why he had let Giordano go when his job was
not finished Torebka asked, "Are you in the union?" Bavuso said, "Yes."
Torebka said, "Well, you know, Johnny Giordano isn't in the union."
About 11 a m Kristiansen informed Bavuso that Kristiansen's card was not in the
rack. Bavuso "got suspicious " and examined the rack discovering that his card
was missing too. About 5 o'clock he had finished his car but had to go to Torebka's
office for something . On his way out Giocalone handed him his pay and said, "I
am going to have to lay you off on account of unsatisfactory work." Bavuso asked
if he was entitled to vacation pay and was told he was not.
The testimony of James Brown reveals that he was hired by Respondent in May
1957, having been interviewed by Giocalone about a month and a half before his
graduation from the Brooklyn High School of Automotive Trades. His duties and
experience were substantially the same as that of the above two employees He
worked on rental cars 8 months to a year and then was transferred to customer cars
He also did some painting for Respondent and engaged in the transportation of
"swaps " During his employment he received two raises , one of 10 cents an hour and
one of 5 cents an hour. He testified that any criticism he may have received about
his work he did not consider as complaints as there was no reprimand and no threat
of discharge involved. . For example, after the car was road -tested it might be found
that a cigarette lighter was missing or perhaps a courtesy light was not working.
Nothing would be said about it except to call his attention to it At times Torebka
would assign him the job of teaching the work to new employees . This happened
on three or four occasions . At least two of them , one by the name of Eddie and
the other named Koukoulas , were still working for Respondent.5
Brown signed a union card on or a few days before January 20, at Kristiansen's
request. On January 21, he also wore a union button at work given him by
Kristiansen . On that day, about 10.30 a m., when he went into Torebka 's office to
get an accessory the latter , in Tom Lawrence 's presence ,8 asked him, "Where is your
union button?" Brown pointed it out to him. Torebka asked, "You signed the
authorization card to join the union?" Brown said, "Yes "
When Brown learned that Kristiansen 's card was missing from the rack he in-
vestigated and discovered that his own was missing too Later he asked Torebka
what had happened to his card Torebka answered "that he didn 't know." Then
Brown asked , "What does it mean when a fellow's card is missing ?" Torebka said
that he didn't know, that Brown should ask Giocalone . Brown did not see
s Torebka did not deny seeing the buttons on Kristiansen I have no doubt that he
saw them and so find
• The interchange of cars between dealers is known in the trade as "swaps."
5 Neither Eddie nor Koukoulas testified.
()Lawrence was Torebka 's assistant
B28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Giocalone until 5 p .m. when the latter came to him with his pay envelope and said,
"I have to lay you off ; I have to let you go . There have been a few complaints about
your work and we are getting a little low." Brown said, "Why lay off your best
men?" Giocalone did not reply. This conversation took place in the presence of
Jimmy Koukoulas.
Charles Johnson had been employed by Respondent about 21h years at the time
he was discharged on January 21, 1959 . He started as a polisher , did "greasing,
switching tires, at times painting or sweeping up, whatever job was available." At
.the time of his discharge his primary job was undercoating and polishing . During
his employment he received two 10-cent increases . According to his testimony he
was praised on several occasions by Torebka for his fast work. He also testified
that "the polishers" 7 had told him that when he undercoated a car he "didn 't leave
any undercoat that mattered on the car so that when they finished it up it was in
pretty fair condition ." Apparently , the polishing is done first on many occasions
but according to Johnson they are supposed to check after the undercoating is done
.to see that the car is clean. He denied ever receiving complaints about his work
performance but testified as to having to do an occasional "touch-up job" where a
,car was released to a customer without having been allowed to dry properly so that
some of the undercoat got washed off in driving the car.
Johnson signed a union card at Kristiansen 's request early in January. On
January 21 , he was one of the employees wearing a union button at work . Torebka
called him to the office to talk about a rush job. Johnson testified that when he got
to the office "Torebka looked down and saw the union button and he turned
.abruptly." Johnson wore his button all day and no one asked him to take it off.
Just before lunch Kristiansen told Johnson that his (Kristiansen 's) timecard was out
,of that rack and that he thought Johnson 's was missing too. Finding that his card
was gone Johnson asked Torebka what had happened to it. Torebka said Giocalone
had taken it but could not say why . About 4:30 Giocalone came to Johnson with
his pay telling him, "I am going to have to let you go." Johnson asked for an ex-
planation . Giocalone said, "Too many complaints about your undercoat in New
York.8 I am going to have to let you go. It is kind of slow."
Johnson further testified that in July 1958 at lunch time he had brought some
beer for himself and for two other employees, Louis Monticino and Tom Miller.
Torebka saw the beer and asked who had brought it . Johnson said it was he.
Torebka said, "You know I don't like drinking beer in the shop." Johnson said he
"didn't know," 9 that he wanted some beer with his lunch, and the others had asked
him to bring them some too. Torebka said, "Drink it this time but don't let it
happen again " On an occasion thereafter , a hot afternoon when Johnson was
working on the grease rack, Torebka brought him a can of beer and told him to
cool off. One night in December 1958 Johnson and a couple of others were
working overtime. It was very cold, the heaters were not operating. Torebka
called Johnson into the office and gave him "a few shots . . . to keep the circula-
tion going. It was so cold, he said it would be impossible to work without some kind
of stimulant." On cross-examination Johnson denied that before July 1958, he
had ever, except at a company party, drank or brought beer or liquor on the
premises or was "spoken to" about such conduct. He further denied receiving any
complaints about his work.
Gregory Nappi, another employee who had signed a union card and who wore a
union button on January 21, testified that Torebka told him to take the button off
before he got into trouble. Nappi said, "What for? A little button will hurt
nobody." Torebka said nothing and walked away. Later that day having heard
that "the timecards had been taken " and that everybody had taken their buttons
off, Nappi quit wearing his.
Thomas Colletti, who was currently employed by Respondent, testified that he
wore a union button on January 21 for about 5 minutes . Torebka saw it and told
him to take it off, which he did. Kristiansen saw him without it and told him to
put it back on, which he did. A couple of minutes later Torebka again told him to
take it off . This time he took it off and threw it away. According to Colletti's fur-
ther testimony only about five employees continued to wear the buttons all day.
Before this occasion , sometime between January 15 and 21, Torebka had asked Col-
letti if he had signed a union card and Colletti had told him he had not. On the
7 No names nor details were given.
8 Respondent maintains a showroom in Manhattan
9 He further testified that he had never seen any notices prohibiting drinking or bring-
ing alcoholic beverages on the premises.
SPIELMAN MOTOR SALES, INC. 329 ,
21st Torebka again asked Colletti the same question and this time Colletti answered
that he had signed a union card.
About the end of June 1958, according to Colletti's further testimony, he and
three others had been laid off because there were no more 1958 models.lo Colletti
named one employee with less seniority than he had who remained working at this
time. That one was Michael Alteri, who was a car polisher. Colletti installed ac-
cessories. Sometime later Colletti returned to work for Respondent. But he was
not recalled-he simply asked Torebka and Giocalone if there was a job available
and they rehired him.
John Giordano testified that he signed a union card on January 12, 1959. He
also wore a union button on January 21. When Torebka saw him he said, "Where
is your union button?" Giordano pointed it out. Torebka asked if he was a mem-
ber of the Union. Giordano replied, "No." On January 23 when he got his pay
from Torebka the latter against asked him if he had signed a union card. This
time Giordano told the truth.
In addition to the foregoing, two other employees testified as to being interrogated
by Torebka about their union activity. About a week after the January 21 dis-
charges, Torebka asked Frank Pagano, a current employee, if he had "signed for
the union." Pagano "told him no."
Luiz Colon, another employee, testified that on the day that Union Representa-
tive Ruiz gave them the union caps Torebka asked him if he had "signed for the
union." Receiving an affirmative reply Torebka asked him where was his hat. Colon
told him that it was in his locker and that he was going to wear it which he did for
the remainder of the day. No one bothered him about wearing it nor did anyone
tell him to take off his union button the next day.
The 8(a)(1) Conclusions
With the possible exception of the testimony about the lack of complaints or the
minor nature of any complaints the employees may have had regarding their work,
all of the foregoing testimony stands undenied in the record and is credited. Thus,
in addition to the numerous interrogations of employees by Torebka regarding their
union membership and activities, we find Torebka engaging in such additional coer-
cive conduct ii as ordering Kristiansen to take off his union cap and Colletti and
Nappi to take off their union buttons. Graber Manufacturing Company, Inc., 111
NLRB 167; Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 802. And
further implying or inferring threats of reprisals by telling Nappi to take his union
button off "before he got in trouble"; by telling Kristiansen, when shown the latter's
union card, "We will see about this"; and asking him if he "was the one who had
caused all the trouble."
The 8(a) (3) Conclusions
I agree with the General Counsel that the foregoing examples of Respondent's
interference with the organizational rights of its employees clearly demonstrates,
Respondent's opposition to the Union. Considering this overt antagonism, the cir-
cumstances of the four discharges at the height of the union campaign as climaxed
in the concerted display of union insignia on the day of the discharges make a strong
prima facie case of illegal discrimination of Respondent. In my opinion, the evi-
dence offered by Respondent as a defense herein is not sufficiently cogent or per-
suasive to overcome the General Counsel's prima facie case. While there is a
semblance of justification for Respondent's action, the record as a whole, I believe,
belies the validity of Respondent's explanation. In short, I simply am unable to
believe or credit Respondent's story.
In its broad aspects, Respondent's defense is that long before the Union came on
the scene it was losing land at its Brooklyn site that it had been leasing from the city
of New York and upon which it stored its cars. As a result it had purchased land
in New Jersey where it had already erected a building used in its auction sales and
where it intended to build another building and relocate its new car department.
10 •Colletti admitted he was not certain about the date. It is clear that the car shortage
was caused by a strike at General Motors which occurred later in the year . Obviously,
Colletti was :mistaken about this date.
n Considering the extent of Torebka 's interrogations and his other conduct which I find
to have been coercive I find that said interrogations were also coercive within the mean-
ing of Section 8(a) (1) of the Act. Blue Flash Express , Inc., 109 NLRB 591 ; Pinkerton
Folding Box Company, 121 NLRB 1308 ; I. C. Button Handle Factory, 119 NLRB 951,
affd. 255 F . 2d 697 (C.A. 8).
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the testimony of David Spielman, Respondent's president, "late in
1958" it had already arranged to have Fasco, a New Jersey firm, take over the
preparation of its rental cars for delivery and were at that time contracting to Fasco
such work as being "more efficient" and better "pricewise" for Respondent.12 With
this in mind, and because his business was on the downgrade, according to Spiel-
man's further testimony, he decided that a reduction in personnel would have to
be made. For that reason, during the last week of December 1958, before the Union
made its appearance, he had his "managers" review with him the relative merits of
each employee in the new car department. After the Union came on the scene but
a day or two before the climactic display of union insignia by the employees, Spiel-
man (after personally weighing and analyzing the information he had received
about the employees) named the four discriminatees as being the least desirable and
directed their dismissal.
My first observation regarding this testimony is that the evidence shows that busi-
ness at this time was not on the downgrade. Actually, deliveries were above nor-
mal due to the settlement of a protracted General Motors strike. My second is that
the evidence shows that no work was yet being let out to Fasco. My third is that
it is difficult for one to believe that an executive of David Spielman's status and
caliber would concern himself with personnel matters such as he described doing
with respect to the employees in question His primary interest in Respondent's
operations was the car rental business and his efforts there, as he testified, were
devoted largely to developing new business. His disdain for operational details,
including the appraisal of the efficiency of rank-and-file employees, is reflected in
his many references regarding his reliance on and confidence in his managers for
such things.13 Moreover, the record is consistent with that picture of him In the
case of two people let go in the paint department on January 5, no cumbersome
procedure or personal analysis was engaged in by Spielman as to who should go He
simply gave orders to Giocalone to let two employees go, leaving it to the manager
to decide who they should be. Significantly, these dismissals occurred 3 days before
Kristiansen had his initial meeting with the union representative. This is in com-
plete contrast to his handling of the four alleged discriminatees after the Union
made its appearance. In further contrast to the circumstances of those dismissals
is the layoff of four others just a few months previously. On that occasion, for the
most part, the youngest in seniority were let go. Quite apart from the question of
seniority, however (since it is possible that on that occasion seniority was not fol-
lowed completely), the question arises, why more of the employees here involved
were not chosen for layoff at that time-particularly if they were as patently un-
desirable as Respondent would have it believed.
In addition to such overall considerations, analysis of the specific reasons given
by Respondent in justification of each discharge reveals a pattern of inconsistency,
or disparity regarding them, further strengthening the conclusion that its position is
not bona fide, but is an attempt to seize upon the normal and accepted deficiencies
of the employees and to puff them into a defense for their discriminatory discharge.
Thus we find that Kristiansen is given a larger raise than others and told for that
reason to keep-the information to himself. His `,refusal", to work overtime, because
of his imminent marriage and other duties, is balanced by Elliot's "refusal" to work
overtime because of its inconvenience to him.14
His relatively low production record (which he explains as being due to his
being called upon to do nonproductive work, such as helping other employees or
on special assignments for his superiors)15 is certainly in a comparable status with
ii This was on direct examination On cross, Spielman testified that it was sometime
between January 1 and 15, 1939, that Respondent was first circularized by Fasco The
record further shows that it was not until about the time a strike occurred involving
Respondent in February that Fasco began performing these services for Respondent
"Thus lie testified that prior to the discharges in question, he "left it entirely to
management to hire and discharge or lay off and use their judgment" , that he would not
be consulted about the hiring of new help and would be consulted about discharges only
"under certain circumstances" , that lie has confidence in his managers who have the
authority to determine whether an employee should be kept or lot go, that he is "too
busy with more important matters . than to see what (his) men have created and to
look at the recorded history of their creations"-ie, their production records
14I credit Kristiansen's testimony that he had asked Toiebka if he could be excused
from working night overtime and that Torebka told him to see Giocalone about it This
lie did and his request was granted
15 The fact that Kristiansen was chosen to do work on Henry Spielman's new car
(notwithstanding that Respondent claims he was negligent in the way he performed the
SPIELMAN MOTOR SALES, INC. 331
that of low producer Colon, whose similar conduct was spoken of with approval by
Torebka The charge that Kristiansen or any of the other discriminatees drove
Respondent's cars recklessly loses considerable force when viewed in the light of
the two accidents which occurred to Mike Altieri while driving Respondent' s cars.
Johnson's alleged "sloppy" work had certainly been at least balanced over a long
period of time against his fast production. Furthermore, as appears from the testi-
mony of Respondent's witness, John Watson, "in any undercoat," they had "to go
over and clean it up anyhow"; they found undercoating on the fenders and up-
holstery "quite a few time"; "practically every car" undercoated would have some
undercoating on it "internally"; even with Miller, Johnson's successor, "who takes
twice as long as Johnson did to do a job, they always find some undercoating that
has tobe cleaned off."
Wnile Johnson may have been reprimanded for drinking beer on the job, I am
unable to credit Torebka's denial of knowledge of almost habitual drinking by another
employee, Louis Monticino,is or of drinking by any other employee.17 I also do
not give credence to Torebka's flimsy generalizations that although the production
of both Brown and Bavuso was high, its quality was poor. As admitted by Torebka,
he "received complaints about all of them now and then." 18 Moreover, the evidence
shows that Brown was selected on several occasions to instruct and break in new
employees, hardly a task to be entrusted to one whose work was of poor quality.
And the charge that Bavuso permitted his work area to become cluttered with the
discarded wrappings of accessories, in my opinion, is indicative of the absurd lengths
to which Respondent would go to justify its action.
One other observation about these discharges and I am done. There was evidence
that Respondent had been getting numerous complaints about the condition of the
rental cars when delivered to the lessees. Very few of these cars had undercoating
or accessories added by Respondent, their conditioning involving merely lubrication,
polishing, and a general inspection. The question in my mind is, in view of these
complaints, and in view of the fact (according to Respondent) that Fasco was slated
to take over the conditioning of the rental cars, why some of the employees who
worked only on rental cars were not selected for dismissal 19 instead of those selected?
As indicated, about the time a strike took place against Respondent, it began having
its rental cars processed by Fasco. The General Counsel apparently contends that
the Fasco arrangement was caused solely by the strike and in view of that he seeks a
remedy whereby the Respondent is required to maintain the level of employment at
its Brooklyn site which prevailed prior to the discharges here. Specifically, the Gen-
eral Counsel is seeking to preclude the possibility of the layoff of four current em-
ployees if and when the four discriminatees herein are reinstated.
I am reluctant to make such a finding and order on the evidence herein While
there is a strong suspicion that the Fasco deal was made as contended by the General
Counsel, under the circumstances here there is also something to be said for the
assignment) would in itself seem to contradict Respondent's claim that Kristiansen's
work was Substandard It would be a stupid supervisor who picked the poorer mechanic
to work on the boss', car.
"I also am unable to credit Monticino's own denial of this He did testify that he
liked beer with his meals, but only at home
17 Such knowledge can easily be inferred from Torebka's testimony that he permitted
Johnson to keep the package of beer she found after Johnson admitted ownership thereof
Certainly, no responsible supervisor would permit an employee to drink several beers on
the job I credit Johnson's testimony that he had brought the beer for Monticino and
another employee as ii ell as himself and that he so informed Torebka I also credit
Kristiansen's testimony that Torebka complained to him many times about Monticino's
drinking I might point out that Torebka impressed me as being an evasive witness
The record shows that lie continually fenced with the General Counsel and refused to
give direct answers to even the simplest questions
18 Compare Respondent's contention and evidence about these two with the undenied
and credited testimony about Colletti (who was still working for Respondent) who spent
a whole day on a power-steering installation only to have it completely done over the next
day by another employee, who put snow tires on the front of a car rather than the rear,
and who further forgot to put the lugs on a wheel while making a tire switch with the
result that when the car was being driven down to the lot, the wheel ran out from
under the car, letting it come to rest on the brake drum
iN Kristiansen testified without denial that several, including Verna, Colletti, and
Koukoulas, worked only on TVI's
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's position. Considering these factors, and the type of business involved,
I feel it wiser to make no specific findings on this question and leave what might
occur to future action by the General Counsel. It may be that no such problems
will apse in the final disposition of this matter, if, however, upon fulfillment of the
usual remedy (to be recommended herein), anything occurs that the General Counsel
feels is not consistent with that remedy, he may take steps to bring about full com-
pliance including further hearing, if necessary. In this respect, he will have the
benefit of whatever has transpired during the many months intervening since this
matter was heard.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Respondents described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the Act.
Having found that Respondent discriminated in regard to the hire and tenure of
employment of Ralph Kristiansen, James Brown, Charles Johnson, and Matthew
Bavuso, it will be recommended that Respondents be ordered to offer said employees
immediate and full reinstatement to their former or substantially equivalent positions
without prejudice to seniority or other rights and privileges. The Chase National
Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827, and
make them whole for any loss of pay they may have suffered by reason of the dis-
crimination against them by payment to them the sums they would have earned from
January 21, 1959, the date of the discrimination against them to the date they are
offered reinstatement less their interim net earnings, said backpay to be computed
on a quarterly basis as provided in F. W. Woolworth Company, 90 NLRB 289;
N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344.
Respondents' unfair labor practices strike at the heart of the rights guaranteed
employees by Section 7 of the Act, N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532
(C.A. 4). The rights involved are closely related to other rights guaranteed by
Section 7. Because of the nature of the unfair labor practices found above, there
is reasonable ground to believe that the Respondent will infringe upon such other
rights in the future unless appropriately restrained. Hence, in order to make effec-
tive the interdependent guarantees of Section 7, I shall recommend an order below
which will have the effect of requiring the Respondent to refrain in the future from
abridging any of the rights guaranteed employees by Section 7. May Department
Stores d/b/a Famous-Barr Company v. N L.R.B., 326 U.S. 376; Bethlehem Steel
Company v. N.L.R.B., 120 F. 2d 641 (C.A., D.C.).
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By discriminating in regard to the hire and tenure of employment of Ralph
Kristiansen, Matthew Bavuso, James Brown, and Charles Johnson, and each of them,
and thereby discouraging membership in a labor organization, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By interfering with, restraining, and coercing their employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the
Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]