Steve Aloi Ford, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1969

179 N.L.R.B. 229 (N.L.R.B. 1969)

STEVE ALOI FORD 229
Steve Aloi Ford, Inc. and International Association
of Retail Automobile Salesmen and Servicemen,
(Ind)'
Steve Aloi Ford , Inc. and Bradford J. Kohler. Case
3-CA-3653 and 3-CA-3679
October 21, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On June 30, 1969, Trial Examiner John F Funke
issued his Decision 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 attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal
as to them Thereafter, the General Counsel filed
exceptions to the Decision and a supporting brief,
and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing, and, except as noted
below,' finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, with the following modifications:
1 The Trial Examiner concluded that sales
manager Dilling's interrogations of employees Wade
and Cleveland were casual and isolated and did not
warrant a finding of a violation of Section 8(a)(l).
We disagree with this conclusion Dilling asked
Wade how many people were in favor of the Union
and called Cleveland into his office to ask if
Cleveland liked working there and what he thought
of the Union. These interrogations were not merely
isolated casual incidents, but considered in
The name of the labor organization appears as amended at the hearing
At the hearing, the General Counsel offered in evidence a letter dated
January 8 , 1969, from Respondent's counsel to the Regional Director
explaining the reasons for Stevenson 's, McDonald 's, and Parris'
discharges This letter was written after Respondent had been informed by
the Regional Director of the filing of the Union ' s unfair labor practice
charges It is well settled that the admissions of an attorney in the
management of litigation are admissible against the client N L R B v
Pacific Intermountain Express Company , 228 F 2d 170, 175 (C A 8), cert
denied 351 U S 952, Ablon Poultry & Egg Company . 134 NLRB 827, fn
1 4 Wigmore , Evidence , section 1063 , 1078 (3d ed 1940 ) Accordingly, we
overrule the Trial Examiner and hereby receive this letter into evidence as
G C Exh 6
conjunction with Respondent's overall course of
unlawful conduct, were inherently such as not only
to have a coercive impact on the employees
interrogated but also such as to make it likely they
would be communicated to others, thus expanding
their coercive effects.'
2. We disagree with the Trial Examiner's finding
that there was no implied promise of benefit in
Dilling's remark to Van Allen on January 23, 1969,
that it was a shame the Union was coming in
because the dealer's association had a new
retirement plan coming out, but that he could not
talk about it "right now." In the context of
Respondent's threats and its demonstrated antiunion
attitude, the message carried by this statement made
I week before the election, is clear. if the employees
did not select the Union in the oncoming election,
they would be rewarded by a new retirement plan.
Such an implied promise of benefit is violative of
Section 8(a)(1).
3. We find, contrary to the Trial Examiner, that
the Respondent violated Section 8(a)(3) when it
discharged employees Stevenson and McDonald.
Both were active Union adherents and openly
solicited employee signatures for the Union on
several petitions, one of which was turned over to
them for completion by Kohler when the latter was
discriminatorily discharged. In an exchange of
opinions about the Union on November 17, John
Aloi, a member of management, told Stevenson
"You've got to be crazy." Stevenson and McDonald
were the only two employees in the new car
servicing department. On November 21 at 11 a.m.,
the service manager told Stevenson and McDonald
they were being discharged because Respondent was
closing its new car servicing department and new
cars would be serviced in the used car line. The next
day both men returned to Respondent's premises to
get their tools and observed employee Mobley
working in the new car service department. Another
employee was later observed working there. The new
car servicing equipment, including that used for
installing options, was not moved from the building
for some time after the discharges.
Respondent asserts that McDonald and Stevenson
were discharged pursuant to the Respondent's plan
to abolish the new car servicing line in order to cut
expenses during the traditional slack season for new
cars in November. However, from November 16 to
30, the Respondent ran an advertisement in the local
newspaper for mechanics and qualified trainees,
stating that "expansion also opens a need for a body
man." Respondent gave poor workmanship and
extra coffee breaks by the two men, and
McDonald's failure to secure the inspector' s license
necessary for "completed" inspection work on new
cars as alternate reasons for the discharge However,
on January 8, 1969, 4 months before the hearing
'Slayer's Johnsonville Meats , Inc. 174 NLRB No 94, fn 3,
Intercontinental Manufacturing Company , Inc. 167 NLRB No 105
179 NLRB No. 43
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein, Respondent's attorney informed the Board's
Regional Office that Stevenson was dismissed for
belligerency and insubordination and McDonald, for
failing to obtain his license
The reason given the employees for their
discharges - the closing of the new car service line
and the transfer of the work to the used car service
department - is refuted by the record evidence.
Thus, the Respondent claims the merger of the work
was due to the slack season in November. However,
work decline during the month of November occurs
annually, yet Respondent had never previously
sought a similar remedy. Moreover, by the date of
the discharge, November 21, the slow month was
almost over and Respondent could anticipate the
usual increase in business in December. That
Respondent in fact expected such an increase is
evidenced by its advertisement for additional
mechanics.' Further, the economic consideration
urged did not require the immediate discharges, for
Respondent did not abolish the new car service line
at that time but continued to operate the line during
the period immediately following the discharges, as
evidenced by the fact that two employees were
subsequently seen working in that department and
the special equipment remained in the separate area
for some time thereafter. Therefore, this explanation
for the dismissals was weak enough even if it had
been advanced with consistency But, at various
times Respondent gave other reasons for the
discharges. Respondent contended at the hearing
and in a letter to the Board's Regional Office that
McDonald was discharged because he did not have
an inspector's license, having failed this test.
However, Respondent at a later point in the hearing
testified that this failure to obtain the license was
not a reason for the discharge. The record further
discloses that McDonald was allowed to continue in
his position for several months after his failure to
pass the test was known to Respondent Similarly,
Respondent contended that Stevenson was
discharged for belligerency and insubordination, but
later testified that this was not the reason At
various times Respondent also assigned two other
reasons, poor work and excessive coffee breaks, as
reasons for Stevenson's discharge.
Where an employer is unable to settle on a reason
for discharge, but vacillates between several asserted
reasons, an inference is warranted that the real
reason for the discharge is not among those
advanced. In the context of Respondent's hostility to
the Union and its other unfair labor practices it
often becomes apparent that the real reason was the
employee's union activity.' The finding which we
here make that Respondent was aware of the Union
'The Respondent ' s witness denied that an expansion was anticipated,
stating that the term "expansion program" was used in the ad because it
sounded good Even assuming no planned "expansion" but an economy
merger of the service lines, Respondent was attempting to justify the
discharge of two mechanics on the grounds of economic necessity, while
seeking to hire additional mechanics
activity of McDonald and Stevenson is justified
from the fact that the discharged employees openly
engaged in in-plant union activity, the plant is
relatively small, and communications between
employees and management are frequent and
informal. Accordingly, we conclude that Respondent
discharged McDonald and Stevenson for
discriminatory reasons.
4 The Trial Examiner found that Respondent
violated Section 8(a)(I) of the Act by posting the
rules, including changes in rates of pay, following
the election in implementation of the unlawful threat
to retaliate if the employees selected representation,
and that Respondent violated Section 8(a)(1) and (3)
of the Act by maintaining in effect and enforcing
such rules. We agree. However, in his
Recommended Order the Trial Examiner failed to
require that employees be made whole for any loss
suffered by reason of these violations. The General
Counsel has requested that this oversight be
rectified, and we find merit in this exception. As
such reimbursement is necessary in order to remedy
all the effects of Respondent's unlawful conduct, we
shall amend the order accordingly.
ADDITIONAL CONCLUSIONS OF LAW
I Substitute the following as paragraph 1 of the
Conclusions of Law-
"l By telling its employees that they would be
worse off if they voted for a union because it would
install a timeclock and require the employees to
punch in and out and that they in consequence
would be regimented; by telling them there would be
no more favors if the Union came in, by promising
its employees it would clean up the restrooms and
"straighten out" insurance problems without a
union, by impliedly promising that without the
Union, employees would get a new retirement plan;
by posting a notice imposing stricter working rules,
changing rates of pay and limiting coffee breaks on
the day after the servicemen voted in favor of the
Union, by interrogating employees as to who was in
favor of the Union and what they thought of the
Union; and by discharging Bradford J. Kohler,
because he engaged in concerted activity protected
by Section 7 of the Act, Respondent violated
Section 8(a)(1) of the Act."
2. Add the following as paragraph 3 and
renumber succeeding paragraph accordingly.
"3. By discharging Howard McDonald and
Robert Stevenson because they engaged in union
activities, Respondent has engaged in and is
engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act."
'A J Krajewski Manufacturing Co, Inc. 172 NLRB No 245, enfd
413 F 2d 673
STEVE ALOI FORD 231
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Steve Aloi Ford, Inc., Salina, New York, its
officers, agents, successors, and assigns, shall.
1. Cease and desist from
(a) Telling its employees that they would be worse
off if they voted for a union, telling its employees it
would install a timeclock and that they would have
to punch in and out and would be regimented if they
voted for a union, telling its employees there would
be no more favors if the Union came in; promising
its employees it would clean up the restrooms and
straighten out the insurance "problem" without a
union, posting any notice imposing stricter working
rules, changing rates of pay and limiting coffee
breaks in the service department without
consultation with the Union, maintaining in effect
and enforcing any such changes in its rules;
interrogating employees about the Union, promising
a new retirement plan if the Union does not get in,
discharging any employees because he engaged in
concerted activity protected by Section 7 of the Act
(b) Discouraging membership in International
Association of Retail Automobile Salesmen and
Servicemen, (Ind.) or any other labor organization,
by discharging or otherwise discriminating against
employees in regard to hire, or tenure of
employment, or any term or condition of
employment
(c) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds is necessary to effectuate the policies of
the Act:
(a) Offer Bradford J Kohler, Howard McDonald
and Robert Stevenson full and immediate
reinstatement to their former or substantially
equivalent positions without prejudice to their
seniority or other rights and privileges and make
them whole for any loss of pay or other monetary
loss they may have suffered in the manner set forth
in that part of the Trial Examiner's Decision
entitled "The Remedy."
(b) Notify Bradford J Kohler, Howard
McDonald, and Robert Stevenson if presently
serving in the Armed Forces of the United States of
their right to full reinstatement, upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
(c) Make whole all present and former employees
for losses if any, they may have suffered through
Respondent's unlawful changing rates of pay and
other posted rules, together with interest at the rate
of 6 percent per annum.
(d) Preserve and, upon 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
Recommended Order
(e) Post at its place of business at Salina, New
York, copies of the attached notice marked
"Appendix "6 Copies of said notice, on forms
provided by the Regional Director for Region 3,
after being duly signed by its representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material
(f) Notify the Regional Director for Region 3, in
writing, within 10 days from the date of this
Decision and Order, what steps have been taken to
comply herewith.
IT IS FURTHER ORDERED that allegations of the
complaint not specifically found to have been in
violation of the Act shall be, and hereby are,
dismissed.
'In the event that the Board ' s 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 "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
WE WILL NOT tell our employees that they would be
worse off if they voted for a union because we will
install a timeclock and make them punch in and out if
they vote for a union.
WE WILL NOT tell our employees they will get no
more favors if they vote for a union
WE WILL NOT tell our employees we will clean up the
restrooms and straighten out insurance problems
without a union
WE WILL NOT tell our employees that it is too bad
the Union is coming in because there is a new
retirement plan we would like to talk about.
WE WILL NOT keep in effect or enforce any of the
work rules posted on the bulletin board on January 31,
1969, insofar as those rules represent a change in
working conditions in effect prior to that date
WE WILL give our employees money equal to the
amount they may have lost as the result of the unlawful
posting and enforcement of new working rules
WE WILL NOT ask employees what they think of the
Union and how many employees want the Union
WE WILL NOT discharge any employee because he
has objected to a bonus plan or any other working
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions on behalf of himself and other employees or
because he has engaged in any union or other concerted
activities
WE WILL offer to rehire Bradford J. Kohler, Howard
McDonald, and Robert Stevenson to their former or
substantially equivalent positions and will pay them for
any pay they may have lost because we fired them.
If Bradford J Kohler, Howard McDonald, and
Robert Stevenson are now in the Armed Forces, WE
WILL notify them of their right to full reinstatement,
upon application, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
All our employees are free to join and remain members
of any union or to refrain from joining or remaining
members of any union except to the extent that such right
may be affected by a contract with a union which contains
a union-security clause lawful under the provisions of
Section 8(a)(3) of the National Labor Relations Board
STEVE ALOi FORD, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
4th Floor, The 120 Building, 120 Delaware Avenue,
Buffalo, New York 14202, Telephone 716-842-3100.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner Upon a charge in
Case 3-CA-3653 filed November 25, 1968, and an
amended charge in the same case filed March 27, 1969, by
International Association of Automobile Salesmen and
Servicemen, (Ind),' herein the Union, and upon a charge
filed in Case 3-CA-3679 on January 23, 1969, by Bradford
J. Kohler, an individual, herein Bradford, against Steve
Aloi Ford, Inc., herein the Respondent, the General
Counsel issued an order consolidating the cases and a
complaint dated March 6, 1969, alleging Respondent
violated Section 8(a)(1) and (3) of the Act. On April 2,
1969, the General Counsel issued a notice of intention to
amend the complaint and the complaint was duly
amended at the hearing 2
The answer of the Respondent as amended at the
hearing denied the commission of any unfair labor
practices
This proceeding, with the General Counsel and the
Respondent represented was heard by me at Syracuse,
New York, on May 5, 6, 7, and 8, 1969. At the
conclusion of the hearing the parties were given leave to
file briefs and briefs were received on June 5, 1969.
'The name of the labor organization appears as amended at the hearing
'Respondent only objected to the motion to change the name of the
Union to show no affiliation with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF RESPONDENT
Respondent is a New York corporation maintaining its
principal and only place of business at Salina, New York,
where it is engaged in the sale and distribution of new and
used automobiles and trucks Respondent's revenues from
such sales exceed $500,000 annually and it receives
automobiles and trucks valued in excess of $50,000
annually from places outside the State of New York
Respondent is engaged in commerce within the meaning
of the Act
11. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act. This finding is based on the fact that the
Union has a collective-bargaining agreement with at least
one other employer and exists for the purpose of
representing employees and dealing with employers
concerning grievances, labor disputes, wages, rates of pay,
hours of employment or conditions of work I therefore
consider the disaffiliation of the Union from the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America immaterial
Cabot Carbon Company v. N L R B, 360 U S 203
III THE UNFAIR LABOR PRACTICES
A Violations of Section 8(a)(1)
The complaint as amended at the hearing alleges,
paragraphs 6, 7, 8, and 9 violations of Section 8(a)(1) by
various officers and supervisors of the Respondent on
various dates between January 15 and 31, 1969 3 The brief
of the General Counsel does not specify the allegations
which he would find supported by the evidence taken at
the hearing The Examiner will make specific findings as
to allegations supported by the evidence and, as to those
allegations not so found, will recommend that the
complaint be dismissed Paragraph 6 of the complaint
refers to two meetings of employees conducted by
President Steve Aloi, Sr , on January 27 and 29.
As to Steve Aloi's speech on January 27, Richard
Dean, Jr , employed at that time as a body and fender
man in the service department, testified
A He said he had just come back from down south
to get rid of a cold and he said he was surprised to hear
that we were forming a Union up here and he hustled
right back to see what it was, and he couldn't believe it,
that we wanted to do such a thing. He started talking
about how crazy Unions were and we had it good there.
We had no reason for a Union, and he started in on the
affiliation, and that nobody wanted Harry Stewart and
he was using all kinds of vulgarity when he spoke of
Harry Stewart Every other word was something else,
'Pursuant to a petition for an election in Case 3-RC-4560 filed by the
Union (under its affiliated name ) the Acting Regional Director for Region
3 on January 10, directed an election among separate units of salesmen
and service employees At the election held January 30 the tally of ballots
shows that among the service employees 10 voted for the Union and 4
against , with 2 challenges At the time of the hearing objections to the
election filed by Respondent herein were pending before the Board
STEVE ALOI FORD
and he said that we'd be worse off if we ever voted for
a Union, because Harry Stewart could never do nothing
for us He was a "F-ing" bum and all this kind of talk.
He was just trying to scare us on the facts.
Q. State what was said and who said it. Continue.
A. He started telling us that the Teamsters didn't
want nothing to do with us, He had just met with
DiMaggio, the head of the Teamsters in this area.
TRIAL EXAMINER: Who?
THE WITNESS: DiMaggio.
TRIAL EXAMINER: Who met with him?
THE-WITNESS: Steve Aloi, Sr.
MR. RANDAZZO. Speak up.
THE WITNESS: He said they didn't want nothing to
do with us. DiMaggio didn't want nothing to do with
us. We were just a little outfit, and if the Teamsters
wanted anything, they would come and rip holes in the
walls and if we didn't want them, we'd be found in
alleys with legs broken and we'd know if they wanted
us. Then he talked about recognition and if we wanted
a Union he'd put a time clock in every stall and we'd
have to punch out everytime we wanted to go take a
piss. Those were his exact words There was quite a lot
of things said of the meeting and it's hard for me to
grasp it all. It's hard for me to remember, it's quite a
long time ago. It went on a little bit longer and Steve
Aloi, Sr. spoke with several of the servicemen about
equipment. The guys were scared of the equipment, that
it was faulty and one guy had almost killed himself
with a truck falling on him and there was a discussion
on this, and Steve Aloi, Sr., said that our equipment
was kept up good all the time and nobody seemed to
agree with this.
Q. Do you recall anything else? Now, Mr. Dean, can
you state whether or not during the course of this
meeting the word "favors" came up for discussion in
any regards?
A. That happened along the time when he was telling
us that we had it good and everything and that any
Union would sever the employee to employer
relationship and there would be no more favors for
employees.
Wayne Wade, employed as a front-end man at the time
testified to the same talk as follows:
A. Well, Steve Aloi, Sr. did all the talking. He
appeared to be quite mad and that he said that Harry
Stewart was no good and they had no use for a third
party in there, because anything coming from -
anything we got had to come through him. And he said,
if we did put the Union in there, he would regiment us.
We'd have to come to work at 8:00 in the morning and
work until noon and have an hour out and come back
at 1.00 and work until 5.00. He kept repeating himself
quite often and said that Fred Maggio was a friend of
his and he wanted no part of being tied up with the
Union in there.
James Van Allen, employed as an electrician, testified:
THE WITNESS: Steve Aloi, Sr. he was the only one
that said anything. He spoke about the Union coming
in and he didn't feel we needed a third party in there.
He asked why, what was the problem in there. He
asked me why I wanted the Union in there and I said,
because the bathrooms haven't been cleaned in about
three months and he said that we can take care of that.
And another gentleman said, my paycheck has been cut
and he said we can work that out, and another fellow
asked about the insurance and 'he said, well, we can get
the insurance company up here and straighten that out.
233
And one of the other fellows asked about what's going
to happen if the Union comes in and he said, "We'll
regiment you." He was quite upset and he went on to
tell about the regimentation and that he would put time
clocks in for every man and we'd be working 8:00 to
5.00. And that was about all that was said.
Jack Craner's testimony as to this speech was
substantially in accord with that of the above witnesses.
On January 29, the day before the election Steve Aloi,
Sr., made another talk to his employees. Dean's testimony
as to this one-
A. Steve Aloi, Sr. immediately begged our pardon'
for the way he had talked at the previous meeting and
said he heard that he had offended quite a few people
and had talked too harshly, and then proceeded to beg
us not to vote yes for the Union. He just about - he
was begging us not to and he started telling us again
that nobody wanted us and we'd be all alone and we'd
lose more than we would gam, and he got into the thing
about - he says, "If you vote for it," he says "You'll
feel like you're in the Army here and I'll regiment this
place so bad that you'll feel like you are in the Army.
The testimony of Wade, in substance, supports that of
Dean.
The testimony of Steve Aloi, Sr., substantially agrees
with the testimony of the preceding witnesses as to both
speeches and I see nothing to be gained by incorporating
it here.
Paragraph 6 of the complaint, as amended, alleges that
Respondent posted a notice (G. C. Exh. 5) on the door of
the service manager's office on January 31 (the day after
the election) reading:
NOTICE: All Service Department Employees.
1.) WORKING HOURS
Except in special cases with prior authorization, all
service personnel are required to punch in and out on
the time-clock according to the following business
hours:
a) All service department employees except get-ready
personnel-
Mon, Tues, Thurs, Fri, - 8 am to Noon; (lunch); 1 pm
to 5 pm Wednesday - 8 am to Noon; (lunch); 1 pm to
5 pm; (supper); 6 pm to 9 pm.
b) Get-ready shop personnel -
Mon. Thru Fri. - 8 am to Noon; (lunch); 1 pm to 5
pm Saturday - 8 am to Noon.
There is one coffee break, on the premises, when the
"coffee truck" arrives in the morning.
All "overtime" must be approved before the work is
performed.
Persistent absence or tardiness, for reasons other
than sickness (for which appropriate proof may be
required), represents just cause for discharge.
2.) For "flat-rate" personnel, effective January 31,
1969, earnings per flat rate hour will be increased eight
cents, from $3.50 to $3.58.
This is equivalent to 50% of the current warranty
rate ($7.16) per flat rate hour, and is comparable to
what other Ford dealers are paying.
All service operations will be evaluated in flat-rate
hours. Earnings will be computed by multiplying the
accumulated flat-rate hours times $3.58.
Compensation, then, will be entirely unrelated to the
amount the customer pays. In this way, equitable
compensation will be given for jobs which are specially
priced at less than the actual flat-rate hour value; for
example, "Special: Tune-up, Front-end alignment„ oil
change and lubrication - only $12.95." Compensation,
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this case, would be based on the actual flat-rate
hours of the operations (at $3.58 per flat-rate hour),
rather than a percentage of the low "traffic-builder"
retail price
The notice was admitted without objection and it is not
disputed that it was posted
Paragraph 7 of the complaint alleges the interrogation
of employees as to their union activity by Glenwood
Dilling, new car sales manager on January 15 and 29,
1969
Wayne Wade testified that on January 15 he had a
casual conversation with Dilling in the shop and that
Dilling asked him how many people were in favor of the
Union and that when he told him everyone was "he took
off and went into the showroom "
George Cleveland testified that on January 29 Dilling
called him into his office and asked him if he liked
working there and then asked him what he thought about
the Union Cleveland's answer was evasive
Paragraph 8 of the complaint alleges that Respondent,
though Dilling on January 23 promised its employees
benefits to induce them to refrain from union activity
James Van Allen testified that on January 23 he had a
conversation with Dilling in which he said it was a shame
the Union was coming in because the dealer's association
had a new retirement plan coming out but he could not
talk about it "right now " This is all the evidence to
support the allegation respecting Dilling
Paragraph 9 of the complaint alleges that Aloi, Sr., on
January 29, told his employees that the Union could not
obtain benefits for them. Assuming that this was
embraced within the context of Aloi's speech of January
29, it will be discussed in that context
B Conclusions as to Section 8(a)(1)
On the credited testimony of Richard Dean, Jr , Wayne
Wade, James Van Allen, and Jack Craner, not
substantially contradicted, I find Respondent violated
Section 8(a)(I) of the Act in the talks given by Steve Aloi,
Sr , on January 27 and 29, in the following particulars
(I) Telling its employees they would be worse off if
they voted for a union and that Harry Stewart could do
nothing for them
(2) Telling its employees it would install a timeclock
and the employees would have to punch in and out and
that they would be regimented if the Union came in
(3) Telling its employees there would be no more favors
for them if the Union came in
(4) Telling its employees they would be checked in and
out when they road-checked a car and would have to give
the address of the destination of the car.
(5) Promising employees it would clean up the
restrooms and straighten out the insurance if the Union
did not come in
I also find the notice posted on the service manager's
door the day after the election implemented the threats
contained in the speeches to require employees to check in
and out, and by, without consultation with the Union
designated to represent the servicemen, changing their
rates of pay and limiting their coffee breaks (The
complaint does not alleges any violation of Section
8(a)(5))
I do not find the casual and isolated interrogation of
Wade and Cleveland by Dilling sufficient to warrant a
finding of violation of Section 8(a)(1) 5
I do not find any implied promise of benefit in Dilling's
remark to Van Allen that it was a shame the Union was
coming in because the dealer's association had a new
retirement plan. All Dilling told him was that he (Dilling)
could not discuss it
C Violations of Section 8(a)(3)
I The discharge of Kohler
Kohler was employed by Respondent as a car salesman
from August of 1968 until October 31, on which date he
was fired He testified that, presumably prior to October
30, "some of us talked about having a union " On
October 30 he went to the service department to talk to
the servicemen about a petition "for a Union vote " He
talked to most of the men in the used car get-ready shop,
including Earl Bliss 6 In the evening he talked to salesmen
in the new car showroom concerning the Union, about 10
or 12 feet from the sales office Standing in the doorway
of the sales office were Steve Aloi, Jr and Glenwood
Dilling Kohler testified that he and the salesmen moved
to the up-desk at the end of the salesroom where he made
out a petition for a union vote - the employees could
vote either yes or no on this petition
The next day, October 31, he attended the usual
morning sales meeting and, on his way up to the meeting,
one of the girls in the bookkeeping office held up his
paycheck and showed it to him as he was going upstairs
On cross-examination, however, Kohler testified that he
could not identify the girl who showed him his check, that
she was 10 to 12 feet away from him and that he could
not read the check
At the sales meeting that day Steve Aloi, Jr , was
explaining a new bonus plan Respondent was providing its
salesmen (The details of the plan I find immaterial )
After asking some questions Kohler stated he did not
think the plan fair or feasible and asked each salesman for
his opinion and stated they agreed with him. Steve Aloi,
J r , and Dilling told him he was "goofy " He then told
them they would see how the union would feel about it
Mot and Dilling told the salesmen they were disappointed
at the objections and would discuss it at the next meeting.
Shortly thereafter Kohler was called to the sales office
where, in the presence of Steve Aloi, Jr , Dilling told him
he was fired because of the trouble he had caused in the
"last couple of days." He refused his paycheck and left
Glenwood Dilling testified that he and Steve Aloi, Jr ,
made the decision to discharge Kohler on October 31 The
discharge resulted from Kohler's behavior at the sales
meeting that morning at which Aloi attempted to explain
the Respondent's new bonus or incentive plan He stated
that at about the end of the meeting Kohler got up and
became extremely belligerent and dominated the meeting,
putting it in "utter chaos " When the meeting could not
be brought back to order it was dismissed According to
Dilling, Kohler did not claim to represent the other
salesmen and did not mention the Union No salesmen
were called by either party to testify to Kohler's conduct
or his statements at the meeting.
The complaint also alleges that Steve Aloi, Sr , made similar promises
on January 27 and 29 These allegations will be discussed in the context of
Aloi's speeches on those days
'Bourne Co v N L R B. 332 F 2d 47 (C A 2)
'Although not relevant to the discharge of Kohler, Bliss is found to have
been a supervisor of Respondent, infra
STEVE ALOI FORD 235
As a secondary reason Dilling stated that he had
received complaints from other salesmen, a month or two
before the meeting that Kohler was taking "ups" that did
not belong to him.' Kohler was also accused of not
splitting commissions with salesmen whose customers
asked for them by name Neither allegation was supported
by independent testimony 8
According to Dilling, the Kohler discharge was
discussed immediately following the sales meeting and
Steve Aloi, Jr , had his check made out when decision had
been reached and before Kohler was called in When
Kohler was called in he was told that he was being
discharged for his hostility and for causing trouble in the
sales organization Steve Aloi, Jr., was not questioned as
to the discharge of Kohler
2 The discharges of Stevenson and McDonald
Howard McDonald and Robert Stevenson were both
employed in the new car servicing department at the date
of their discharge, November 21, 1968 They were the
only two employees in that department' McDonald
testified that on the day Kohler was discharged, he came
to the new car department and gave McDonald the
petition he had previously prepared (the pro- and
anti-union petition) and told McDonald that if he wanted
to carry the ball from there he could McDonald discussed
it with Stevenson and they thought they would find out
how the men felt about it About November 7, McDonald
had a conversation with Stewart who told him he would
have to have over 50% of the men to have a union
McDonald talked this over with Stevenson and they
prepared a new petition similar to Kohler's, circulated it
and received signatures. About November 14 or 15
McDonald called Stewart, told him they had about 55 to
56% signed and later met with Stewart. Stewart gave them
a book and another petition to have signed. McDonald
and Stewart took it around the shop, explained "the
workings of the union" to the men and had the petition
signed The only official McDonald observed while
circulating the petition was John Aloi, standing in a
corner of the used car department who saw an employee
sign the petition. There is no evidence that John Aloi
knew what the petition was or why the employee was
signing When they had obtained the employees'
signatures they returned the petition to Harry Stewart 10
McDonald testified that he signed the petition on
November 17 although the date of the petition reads
November 19 An examination of the writing discloses
that the date may have been changed although by whom
or for what reason is unknown
McDonald and Stevenson were both discharged on
November 21 At about 11 a.m Don Darling, a service
manager, came to them and told them they were being let
go because Respondent was closing its new car
department and putting the new cars through the line"
McDonald told him he would accept that. Darling asked
"'Ups" are new customers who come to a salesroom to purchase cars
One of the floor salesmen on duty will service the customer Kohler
testified the floor salesmen had no rotation system for handling "ups" and
that the first salesmen to reach the customer would handle him
'Larry Witz, named by Dilling as a complainant, was called by the
General Counsel and testified that he could not recall having complained
to Dilling about Kohler
'While Respondent claims McDonald was a supervisor I do not find this
supported by the record While McDonald was the senior and the higher
paid employee both performed essentially the same services
"GCExh4
McDonald to check a shipment of new cars but
McDonald refused on the ground that since he was
discharged he would accept no further responsibility.
Darling then told them they might as well leave and
McDonald and Stevenson packed their tools and left The
next day McDonald returned to the shop with a former
employee named Warren to get Warren ' s tools and
observed Robert Mobley working in the new car
department . He did not testify as to what Mobley was
doing 12
Richard Dean, Jr, employed as a salesman until
February 5, 1969, testified that he had been in the new car
department after the discharge of McDonald and
Stevenson and observed that none of the new car
equipment , including the equipment for installing options,
had left the building He also observed Robert Mobley,
whose job he could not describe , working there and stated
Earl Bliss moved over a day or two later
In the Regional Director ' s "Decision and Direction of
Election" Earl Bliss was found to be the "New and Used
Car Get Ready Foreman" and a supervisor . Aloi, Jr ,
testified that Bliss had been the used car reconditioning
foreman and that when the new and used car departments
were merged he became foreman of both The merger
took place sometime between the discharge of McDonald
and Stevenson and December 23.
Stevenson was employed in the new car department
from October until November 21, 1968 He testified that 3
or 4 days before he was fired he asked John Aloi what he
(Aloi) thought of the Union and Aloi responded , " You've
got to be crazy9 " As to the balance of his testimony
Stevenson corroborates McDonald as to their efforts to
obtain signatures to the petition in the service department
and to the circumstances of their discharge . Stevenson
also returned to the shop the next day and observed
Mobley working in the new car department Stevenson
described Mobley as a car washer . He did not , however,
testify as to what Mobley was doing
Darling testified that McDonald and Stevenson were
discharged because business was slow . New cars were to
be conditioned by the flatrate line mechanics in the shop
Darling added as an additional reason that their work was
sloppy Darling testified that both McDonald and
Stevenson performed work on cars which was improper
and resulted in the cars being returned to the service
department His testimony on this point does not clearly
establish that their work was any more deficient than that
usually performed in service departments In any event
Darling testified that at the conference between Aloi, Jr ,
Dilling and Darling held the day before the discharge,
when Darling mentioned their poor work, Aloi told him
that the jobs were being eliminated anyway and new cars
would be run through the line only once This testimony
by the man who made the decision would eliminate poor
workmanship as a vital factor in the decision 11
This meant that the new cars would be serviced through the used car
line, combining the operations On cross-examination McDonald testified
that Darling told him business was slow and McDonald admitted business
had slowed down
"Mobley's job status is not clear Dean said he would not describe him
as a car washer, although Stevenson so describes him He was apparently a
"lot boy" who could fill in at other jobs
"Respondent established that McDonald did not have an inspector's
license and had failed his test A new car, according to the testimony, had
to have a certificate signed by a licensed inspector , presumably
guaranteeing safety I do not find , since McDonald was continued as new
car conditioner for many months after failing to secure his license, that
this was a substantial factor in the decision to discharge him
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steve Aloi, Jr , testified that the day before the
discharge he, Dilling and Bill Stafford, Respondent's
controller, were discussing profits and expenses and
considering a way to cut expenses at a traditionally slack
season They determined there were not enough new cars
going out to justify the new car department At some
point Darling got involved and mentioned their faulty
work and suggested running the cars through the shop
line At the same meeting Stafford mentioned the extra
coffee breaks they were taking " The decision was then
made to discharge both McDonald and Stevenson and
merge the new and used car departments and they were
notified of this decision by Darling as above set forth
One other relevant factor remains to be considered
Aloi, Jr , was asked on cross-examination if it were not
true that from November 16 to November 30 Respondent
was running an "ad" in the local newspaper for mechanics
and qualified trainees Aloi said he assumed Respondent
was running such an ad, that it was always looking for
good mechanics and that an expansion program sounded
good in the ad
3 The discharge of Paul Parris
Paul Parris testified that he was last employed by
Respondent as a salesman from August to November 21,
1968 He had previously been employed by it as a
salesman in 1964 and 1965
Parris was present when Kohler discussed union
organization with the salesmen in the salesroom on the
evening of October 30 and on November 20 he signed the
petition in support of the Union (G C Exh 4.) He stated
that prior to his signing the petition he had heard
discussion of the Union all over the showroom, down at
the doughnut shop and during coffee breaks and that he
participated in these discussions
He was discharged by Steve Aloi, Jr , on November 21
and his version of the discharge discussion reads
A Mr Aloi, Jr called me into the office and he said
to me - Mr Aloi, Jr said, I'm going to have to let
you go I was a little surprised I said, "Let me go)"
He had my check already sitting on the desk and he
picked it up at that time and had it in his hand and I
was a little bit surprised 1 was in the process of
delivering eight cars I was in the process of moving out
eight cars. That's what I got paid on, half at that time
and half after I left I said to Mr Aloi, Jr., what's the
problem9 He said you're late for the sales meeting I
told him "You know why I'm late" He didn't say
nothing He said, "That's it, you're fired " So, I stood
there looking at him, you know, and he didn't say
nothing. Then he kind of looked at me and he looked
like he had a hurt look in his face and he said, "You
disappointed me in another way " I said, "What do you
mean" He said, "Nothing " I turned to Mr. Dilling
and said, "Bud," we call him Bud, "Talk to Steve will
you9" And he said, "I just work here" So then this
gentleman asked me for my keys to the demonstrator
which I gave him
Q This gentleman meaning who`i
A Mr Aloi, Jr And he arranged for a ride for me
downtown. I think then I walked into the show room
and Mr Dilling came out and said, "I hate to see you
go, Champ " I'm going to tell it just the way it was
And I said, "What can I do "
"McDonald testified that they usually took a coffee break after checking
in at 8 a in The employees received a regular coffee break at 10 a m
Steve Aloi, Jr , testified that he rehired Parris in
August, 1968, against the wishes of his father because he
needed a salesman and considered Parris a good salesman
and a strong "closer " He stated that in previous
employment Parris had difficulty in getting to work on
time and that he told him he had to be on time for the
sales meetings 15 After his employment in August
Respondent had a problem in Parris' attendance at the
sales meetings or, as Aloi put it, he was "consistently not
there." He was warned several times and Dilling and Aloi
would decide to let him go but Parris would make one or
two sales that night so the issue was deferred. Although
the date is not fixed it could be established that on the
evening of November 20 at about 9 p.m. Parris told Aloi
he would be a little late the next morning and Aloi told
him to make the sales meeting Parris did not make the
meeting and did not report, according to Aloi, until 11 30
a m (Parris stated he thought he reported at 11 a m
Aloi's testimony as to the discharge reads
A As soon as I saw him come in the door, I knew I
told him the night before to be in and he wasn't at the
meeting I talked to Bud again and we said today,
that's it, we're going to call it quits. As soon as he
came in the door I called him in the office and sat
down with him I don't remember exactly what I said,
something to the effect that I had to let him go It
wasn't working out and he wasn't with the program the
way we agreed and just asked for the keys to the
demonstrator, I guess He said, Steve, give me another
chance, I need the job and I said, "I'm sorry, Paul, but
I can't go on any longer with it because you've let me
down You disappointed me in a lot of ways, because
when I hired you you knew I was sticking my neck out,
so to speak, because my dad didn't want me to hire you
in the first place. I went to bat for you to do a good
job for us and now I end up being a dummy." I mean,
when it's disrupting the sales force, we can't tolerate it
any longer
Glenwood Dilling, sales manager, testified that altei
Parris was reemployed he had difficulty adjusting to
Respondent's new sales methods His testimony on this is
unintelligible to anyone not familiar with the industry.-
He also testified that Parris was handling "parlays" in the
agency " As to the decision to discharge Parris and the
circumstances of discharge Dilling's testimony
corroborates that of Aloi, Jr.
"The sales meetings were held at 9 a in or shortly thereafter and Dilling
testified that among their purposes was to get the salesmen out of bed
before noon
"His testimony reads
Q (By Mr Ganotis ) Did you have any difficulty , Mr Dilling9
A Yes
Q What was 0
A Well, the trading tactics had changed We had the more grear
system which was a very hard firm close , that 's how we were trading
back in them days when Paul was there
Q He worked for Steve Aloi Ford before, is that right9
A Yes The more grear system was to put them on paper , a real hard
grind close Then , in that day , if you couldn't you broomed them
Things had changed, we tried to put a soft sell, being a little hostile with
our customers , and he found this very hard to control himself He was
very strong and aggressive
"By "parlays" billing meant that he was selling tickets on football and
baseball pools I find billing's testimony with respect to this totally
unsubstantiated
STEVE ALOI FORD 237
4 The discharge of Dean
Dean was employed by Respondent (for the second
time) from July I, 1968, to February 5, 1969 Eliminating
the irrelevancies in Dean's testimony, which eliminates
most of it, he testified that on January 28 he made a trip
to Utica with Harry Stewart where he "was enlightened
with the meeting we had with these officials in Utica, and
so, I wanted to let everyone know about it " When he
returned he was told that everyone knew he had been to
Utica Dean called a meeting of the servicemen that night
at Aunt Jamina's restaurant across the street His
testimony then skipped to the meeting on January 29
conducted by Steve Aloi, Sr., where he told Aloi, Sr , that
Harry Stewart had not been kicked out by the Teamsters.
Aloi would not listen to him As they were leaving the
meeting Aloi, Sr , asked him what he had against him and
Dean told him nothing, but that the employees wanted
representation
On February 5, Dean called the shop and spoke to Bill
Martin, assistant service manager, and told Martin his
doctor had advised him to take about a week off because
of a back injury. Martin asked him to come in and finish
some paper work Dean drove to the agency, finished his
paper work and then decided to get some maintenance
work done at the service shop while he was there. He
pulled to the service door, "beeped" his horn and George
Cleveland, an employee started to push the door button
John Aloi came up to Cleveland, stopped him from
pressing the button, and, according to Dean, gave him
(Dean) a dirty look and told him to get out of there Dean
waited a minute or two and then went inside where he
asked Aloi what he was trying to pull. The following
dialogue was brief
He (Aloi) said, "I'm trying to tell you to wait " I said,
"Don't you tell me that you asshole, you're telling me
to get out of here You can't tell me that Bill Martin
told me to come in and get my paper work straightened
out " John Aloi said for me to be careful what I say or
else
Aloi then walked to the service desk and got Steve Jr and
he fired me and told me to get my tools up, I was done
It is this name-calling incident which was the sole cause
for the discharge of Dean, according to counsel for the
Respondent
To minimize Dean's offensive language the General
Counsel recalled Harold Kohler who testified
Q Did you ever have occasion to swear at John
Alois
A Yes.
Q. Can you give us an idea of the occasion or extent
and what you said"
MR. ALOi I object to this as being irrelevant and
immaterial
TRIAL EXAMINER Overruled
THE WITNESS Just about everyone called everyone
an asshole down there They called everyone just about
everything down there. There was nothing really serious
about it, including Bud Dilling, Steve, Jr , said well you
asshole, what are you talking about Things such as
this, and it meant nothing
Q Did you call Mr. John Aloi an asshole?
A Many times, not in the showroom, but at bars
when he actually went out with us
Jack Craner, another employee, testified that on one
occasion he told Bill Martin during an argument, to go -
himself When Darling reprimanded him for his use of
such language to a supervisor he told him he did not know
that Martin, then a service writer, was a supervisor After
this he never told Martin to go himself again.
John Aloi's testimony is in almost complete agreement
with that of Dean's He testified that when Dean entered
the service department "storming in the side door like a
maniac" and called him an asshole, he was stunned. He
also testified that there were other employees and
customers within hearing distance Aloi went to the sales
office and talked to his brother Steve, Jr They decided to
fire Dean, went back to the service desk where Dean was
standing and fired him
D Conclusions as to Violationv of Section 8(a)(3)
1 The discharge of Bradford J Kohler
I find the primary reason for Kohler's discharge was his
conduct at the sales meeting held on October 31, a fact
substantially conceded by Respondent Dilling's testimony
that he had received complaints from other salesmen that
Kohler was stealing "ups" and not splitting commissions,
a charge not substantiated by the record, indicates that
the complaints were only supplemental factors
Since Aloi, Jr,, was using the meeting as an
opportunity to explain a new bonus system for the
salesmen, it was devoted to working conditions and
Kohler, on behalf of himself and the other salesmen, had
a right to protest the system 18 While Dilling testified that
Kohler became so belligerent that the meeting was
reduced to chaos and had to be dismissed I am not, on the
basis of his mere unsupported description, willing to find
that Kohler was thereby deprived of his rights under the
Act " In short I find that Kohler was discharged for
exercising the rights guaranteed by Section 7 of the Act
Under these circumstances I find it unnecessary to decide
whether the discharge violated Section 8(a)(3) in addition
to Section 8(a)(1) 2° In making this finding as to violation
of Section 8(a)(1) I also find it unnecessary to pass on the
issue of the Respondent's knowledge of Kohler's union
activity. Regardless of such knowledge the discharge
violated the Act
2 The discharge of McDonald and Stevenson
Although there is no direct evidence of company
knowledge of union activity on the part of McDonald and
Stevenson, I find it reasonable to infer such knowledge or
at least suspicion. This based not only on the small size of
the agency, employing about 26 employees, but on the
testimony which reveals that McDonald solicited rather
openly in the plant during working hours I have also
considered that hierarchal echelons are not rigidly
observed in automobile agencies and that communication
between employees and supervisors is free and easy I do
not believe that after the discharge of Kohler Respondent
was unaware of union organization or unaware that
McDonald and Stevenson were furthering it.21
"I credit Kohler 's testimony that he asked the other salesmen what they
thought of it and if they did not agree with him This is sufficient to bring
his conduct within the definition of concerted activity
"I consider it significant that Aloi , Jr , although a witness , was not
interrogated as to Kohler ' s conduct
"Quality Rubber Manufacturing Company . Inc, 176 NLRB No 7, and
cases cited, fn 3
"This finding is made more difficult in view of the sworn testimony of
both Aloi, Jr. and Darling that at the time of the discharges they did not
know either McDonald or Stevenson was engaged in union activity In
view of the ultimate finding this issue loses import
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issue I find presented is whether Respondent was
motivated by the economic saving or by the employees'
union activity. In reaching conclusion I accept the fact
that McDonald failed to pass his inspector's test and that
the men, as did other servicemen, took an extra coffee
break as only incidental to the cause of discharge
The General Counsel emphasizes that the new car
department was not closed down and that Bliss and
Mobley were assigned to that shop to service new cars 22
This, presumably, would indicate that the economic factor
asserted by Respondent was false and fortify the inference
of discrimination What the General Counsel has not
established, however, is that Bliss and Mobley were
replaced or that the total working force was increased, in
which case the savings to the agency were not diminished.
Bliss still retained his supervision over the used car line
and took on Mobley to help in the new car line Whether
Mobley's duties were confined to the new car department
is not known
As I understand this record, and it is not clear on this
point, new cars received from the factory were sent to the
new car line for checking and the insertion of options If,
after delivery to the purchaser, further adjustments were
necessary they were returned to the new car line for such
adjustments. Under the new arrangement cars returned by
such purchasers would be checked and adjusted on the
used car line
Respondent has established that business was slack
during the traditionally slow month of November (a fact
acknowledged by McDonald), that it was seeking a means
to reduce expenses and that the elimination of the two
employees in the new car department was at least feasible.
The record does not fault this argument The General
Counsel's case rests on the union activity of McDonald
and Stevenson, their discharge and refutation of the
reasons asserted for discharge Because I do not believe he
has succeeded in establishing that the grounds given for
discharge were pretextuous I do not find he has sustained
his burden of proof Union activity followed by discharge
may raise a presumption of discrimination but it is not
irrebuttable. Having shown reasonable cause for discharge
which has not been successfully attacked I do not find the
presumption alone sufficient to support a finding of
violation
I do, however, find Aloi's admission that Respondent
was advertising for mechanics at the time it discharged
McDonald and Stevenson inconsistent with its economic
defense On the other hand I believe there was some
obligation on the part of the General Counsel, in his
investigation, to determine whether new mechanics were
actually hired and at what rates of pay and for what
duties Without such evidence I think I must accept the
fact that the merger effected an economy
3 The discharge of Parris
The discharge of Parris presents another clear issue. He
was either discharged for his habitual tardiness or for his
union activity 13 His union activity consisted in signing the
union petition (G C. Exh 4) on November 20, and
according to his testimony, in urging other employees to
select a union and have "some kind of representation
through a Union by law."2a
"Neither Bliss nor Mobley was called as a witness so exactly what
services they performed after November 21 is not known
"1 find no support for the allegation that Parris was engaged in the sale
of "parlay tickets "
The circumstances of his discharge have been described,
supra Parris did not deny that he was frequently late and
missed sales meetings . His excuse, at least in part, was
that he had received a back injury in a automobile
accident and visited his doctor at 9 a m , bringing a
medical excuse to Respondent after each visit
The testimony of Steve Aloi, Jr., and Darling
establishes that he missed sales meetings and that he could
have visited his doctor after the meetings 25 The testimony
is undisputed that the meetings lasted from 15 to 20
minutes. I also find that Aloi, Jr , and Darling were
disturbed by his failure to attend the meetings, that he had
been warned about his failure to attend meetings and,
more specifically, I find that Aloi, Jr., did warn him to
attend the meeting on November 21 26 Parris did not
report that day until I1 a m. (according to Parris) or
1 1 30 a m. (according to Aloi, Jr and Darling) In any
event he had not been to his doctor on that day and his
tardiness after a direct warning, was inexcusable
Unless I am to hold that the mere signing of a union
petition establishes a complete immunity against discharge
for cause and an irrebuttable inference of discrimination, I
must hold that the discharge of Parris did not violate
Section 8(a)(3) or (1) of the Act
4 The discharge of Dean, Jr
Dean was discharged by Respondent on February 5 for
one reason and one reason only, i e , his use of an abusive
and foul epithet to his supervisor , John Aloi on February
5
There is no evidence of any union activity on the part
of Dean until he took the trip to Utica with Stewart on
January 28 27 His testimony is that everyone in the shop
knew he made the trip, testimony which is unsupported
Again company knowledge is not a problem The
evidence, including Dean's testimony, establishes that he
was discharged immediately following his calling John
Aloi an asshole. The words were not spoken in jest and
were made in the presence of other employees and
customers. Aloi's immediate response, after telling Dean
to calm down was to go to his brother and report the
incident Both decided to discharge Dean Since both the
response and the decision were spontaneous and, in my
opinion justified'28 and stemmed solely from the use of an
intolerable epithet" I find no evidence that discrimination
'There is no direct evidence that this activity was known to
management There is the sworn testimony of Aloi, Jr, that he did not
know of any union activity on the part of Parris I do not, in view of the
conclusion reached , find it necessary to resolve this conflict between the
inference the Board customarily draws and the sworn testimony on Aloi,
Jr
"Resp Exh 2 indicates that the office hours of Parris ' doctor were from
10am to2pm
"Parris could not remember whether he had been warned or not
"Dean testified that after the discharge of McDonald and Stevenson he
asked Martin why they were discharged and Martin told him work was
slow and there was a consolidation He also asked Darling about the
discharges and Darling told him work was slow and they were giving the
work to the line mechanics Dean also testified that he spoke to John Alot
about the discharges and that Aloi "sort of giggled and turned around and
walked away "
231n a period in which college students address the presidents of colleges
with four (and more) letter obscenities the finding may seem anomalous
The issue is not, however , whether the employer is compelled to submit to
such indignities by the mores of the times but whether he discharged the
employee for his union activity
"The General Counsel offered testimony that the term was generally
used , together with other vulgarities , about the shop None of his
STEVE ALOI FORD
played any part in Respondent's decision I therefore find
the discharge of Dean did not violate the Act.
In reaching conclusion with respect to the discharges of
McDonald, Stevenson and Parris I have given weight to
the fact that during this period Respondent engaged in no
antiunion campaign and committed, apart from the
discharge of Kohler, no unfair labor practices 30 Other
violations of Section 8(a)(1) were confined to the speeches
of Aloi, Sr , on January 27 and 29, more than 2 months
after the discharges in question. Aloi, Sr., whose antiunion
feelings have been demonstrated, was taken to the hospital
on November 4 and spent the next 2 months at home
recuperating The record does not indicate that he
participated in the decision to discharge these employees
IV REMEDY
Having found the Respondent engaged in and is
engaging in certain unfair labor practices it shall be
recommended that Respondent cease and desist from the
same and take certain affirmative action necessary to
effectuate the policies of the Act.
Having found that Respondent discriminatorily
discharged Bradford J Kohler because he engaged in
protected concerted activity it will be recommended that
he be offered full and immediate reinstatement to his
testimony indicated that it was used as serious abuse of a supervisor While
Kohler testified that the term was generally used as a form of address in
the shop he also testified that he never used it to John Aloi in the
showroom , only in bars The General Counsel did not attempt to establish
that the term was used as one of affection or endearment
'°It may be that neither Aloi , Jr. nor Dilling were aware that any
employee could not be discharged for speaking out at a meeting during
which working conditions were being discussed without risking violation of
Section 8 (a)(1) Since motive is not a factor in establishing violation of
that Section neither their ignorance nor innocence will serve as
exculpation It may, however , be another intangible to be evaluated in
finding subsequent violations of Section 8(a)(3)
239
former or substantially equivalent position without
prejudice to his seniority and other rights and privileges
and that he be made whole for loss of pay or any other
monetary loss he may have suffered by reason of the
discrimination practices against him Backpay shall be
computed as prescribed by the Board in F W Woolworth
Company. 90 NLRB 289, and Isis Plumbing & Heating
Co, 138 NLRB 716
Based upon the foregoing findings and conclusions and
upon the entire record in this case, I make the following
CONCLUSIONS OF LAW
I By telling its employees that they would be worse off
if they voted for a union and that Harry Stewart could do
nothing for them, by telling them it would install a
timeclock and that they would have to punch in and out
and would be regimented: by telling them there would be
no more favors if the Union came in; by promising its
employees it would clean up the restrooms and "straighten
out" insurance problems without a union; by posting a
notice imposing stricter working rules, changing rates of
pay and limiting coffee breaks on the day after the
servicemen voted in favor of the Union: and by
discharging Bradford J. Kohler because he engaged in
concerted activity protected by Section 7 of the Act,
Respondent violated Section 8(a)(1) of the Act
2 By maintaining in effect and enforcing the rules
posted by Respondent on January 31. 1969, Respondent
violated Section 8(a)(3) and (t) of the Act."
3 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act
[Recommended Order omitted from publication ^
"No violation of Section 8(a)(5) was alleged in the complaint
Certification of the Union as collective -bargaining representative of the
service department employees had not issued at the time of the complaint