Stevens Creek Chrysler Jeep Dodge

National Labor Relations Board - Board Decisions

Apr 20, 2009

353 N.L.R.B. 1294 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 132
1294
Stevens Creek Chrysler Jeep Dodge, Inc. and Ma-
chinists District Lodge 190 Machinists Automo-
tive Local 1101, International Association of
Machinists and Aerospace Workers, AFL–CIO.
Cases 20–CA–33367, 20–CA–33562, 20–CA–
33603, and 20–CA–33655
April 20, 2009
DECISION AND ORDER REMANDING
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On July 1, 2008, Administrative Law Judge Jay R.
Pollack issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief, the Respon-
dent filed an answering brief, and the General Counsel
filed a reply brief. The Charging Party joined in the
General Counsel’s exceptions and brief and filed addi-
tional exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions only to the extent consistent with
this Decision and Order Remanding.2
This case arose out of an organizing campaign among
the Respondent’s automotive technicians at its newly
opened dealership in San Jose, California. The judge
found that between December 2006, when the dealership
opened, and May 16, 2007, when the Union filed a peti-
tion for an election, the Respondent committed multiple
violations of Section 8(a)(1).3 The judge dismissed sev-
eral other 8(a)(1) complaint allegations, as well as 8(a)(3)
discharge and refusal-to-hire allegations.
To remedy the coercive effects of the 8(a)(1) viola-
tions that he found, the judge determined that the Board’s

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the record evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) by: unlawfully soliciting employees to withdraw
their union cards; telling an applicant that he was “blackballed” and
would not be hired because of the Union; and granting unannounced
wage increases to eight employees to deter support for the Union. See
also fn. 8.
traditional remedies were sufficient. Therefore, he re-
jected the General Counsel’s request for a Gissel4 bar-
gaining order, and dismissed several 8(a)(5) allegations
that were dependent on the issuance of a bargaining or-
der.
The General Counsel excepts to the judge’s dismissal
of the 8(a)(1) and (3) allegations, and to his failure to
address and find additional 8(a)(1) violations alleged in
the complaint. The General Counsel further excepts to
the judge’s failure to issue a Gissel bargaining order and
to his dismissal of the contingent 8(a)(5) allegations.5
We find merit in certain of the General Counsel’s ex-
ceptions. As explained in section 1 below, we find that
in addition to the 8(a)(1) interrogations found by the
judge, the Respondent unlawfully interrogated employ-
ees on two other occasions. We additionally find that the
Respondent violated Section 8(a)(1) by creating the im-
pression among employees that their union activities
were under surveillance. As explained in section 2, we
also remand to the judge for further consideration certain
other 8(a)(1) allegations, as well the allegation that the
Respondent violated Section 8(a)(3) by discharging em-
ployee Patrick Rocha.6 Finally, in view of the additional
violations that we find, and the complaint allegations that
we remand for further analysis, we shall direct the judge
to reconsider the appropriateness of a Gissel bargaining
order (and, if recommended, the contingent 8(a)(5) alle-
gations), and other requested remedial relief.
1. As stated above, the employees commenced orga-
nizing efforts soon after the dealership opened in De-
cember 2006. There is no dispute that the Respondent
learned of the organizing activity on March 2, 2007,7
after a group of employees returned from a lunchtime
union meeting at a local restaurant. On the afternoon of
March 2, and again on March 5, the judge found that the
Respondent’s service manager, James Garcia, violated
Section 8(a)(1) by individually summoning several em-
ployees to his office and interrogating them as to whether

4 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
5 In addition, the Charging Party excepts to the judge’s failure to or-
der the additional remedies of internet/intranet notice posting and re-
quiring the Respondent to read the notice to employees.
6 For the reasons stated by the judge, we agree that the Respondent
did not violate Sec. 8(a)(3) and (1) by failing to hire Mark Higgins or
Sec. 8(a)(1) by soliciting grievances. We also find, contrary to the
General Counsel’s exceptions, that the Respondent did not violate Sec.
8(a)(1): by Service Manager Mike Frontella interrogating employee
Wells as to whether he obtained a union withdrawal card; by Owner
Mathew Zaheri impliedly threatening employees that he “owned” them
and that they were replaceable; or by service manager James Garcia
threatening employees that it would be futile to select union representa-
tion, that a new facility would not be built if the Union was selected,
and that several employees had withdrawn their support for the Union.
7 All dates are in 2007, unless stated otherwise.
STEVENS CREEK CHRYSLER JEEP DODGE 1295
they had attended the union luncheon and signed authori-
zation cards.8
a. The additional 8(a)(1) interrogations
Record evidence shows that on at least two other occa-
sions, Respondent officials questioned employees about
their organizing activities. On March 5, Parts and Ser-
vice Manager Chris Nickerson telephoned employee Mi-
chael Lane and asked him who was behind the organiz-
ing drive. Two months later, on May 11, Owner Zaheri
asked employees, during a regularly scheduled shop
meeting, who had paid for the pizza at their May 9 union
meeting.
Although the complaint alleged that Nickerson’s and
Zaheri’s questions were unlawful, the judge failed to
address the allegations. We do so here and find the vio-
lations.
In determining whether an interrogation violates Sec-
tion 8(a)(1) of the Act, the Board considers “whether
under all the circumstances the interrogation reasonably
tends to restrain, coerce, or interfere with rights guaran-
teed by the Act.” Bloomfield Health Care Center, 352
NLRB 252 (2008), citing Rossmore House, 269 NLRB
1176, 1178 fn. 20 (1984). Relevant factors to be consid-
ered under this totality of circumstances approach in-
clude “whether the interrogated employee is an open or
active union supporter, the background of the interroga-
tion, the nature of the information sought, the identity of
the questioner, and the place and method of the interro-
gation.” Bloomfield Health, supra; see also Intermet
Stevensville, 350 NLRB 1349, 1353 (2007). Applying
these factors, we find that Zaheri’s and Nickerson’s
questions were coercive and violated Section 8(a)(1).
First, although the Respondent learned of the organiz-
ing campaign on March 2, it did not know which em-
ployees supported the Union. Lane was not an overt
supporter, and he actively sought to conceal his support
when Nickerson asked him on March 5, who was behind
the organizing campaign. Nor was there evidence that
only open union supporters attended the May 11 shop
meeting where Zaheri asked who had paid for pizzas at
the Union’s May 9 organizational meeting. See RCC
Fabricators, Inc., 352 NLRB 701, 702 (2008) (asking
employees not known to be active and open union sup-

8 The Respondent does not except to this finding or to the judge’s
finding that, during Garcia’s interrogation of employee Lane on March
2, Garcia violated Sec. 8(a)(1) by: (1) threatening that “heads would
role [sic]” and employees would “get in trouble” and possibly lose their
jobs if the dealership was picketed or organized; (2) stating that if he
found out that employee Rocha or another employee organized the
March 2 meeting he would “blow them out”; and (3) stating that owner
Matt Zaheri would close the dealership if employees selected the Union
to represent them.
porters who attended a union meeting found unlawful).
Second, Nickerson’s and Zaheri’s interrogations oc-
curred against a background of the Respondent’s hostil-
ity toward employees’ union activity, as evidenced by
the number of unfair labor practices (set forth above in
fns. 3 and 8) the judge found. See Holiday Inn-JFK Air-
port, 348 NLRB 1, 4 (2006). Indeed, Nickerson interro-
gated Lane only 3 days after Service Manager Garcia
unlawfully threatened Lane that Zaheri would discharge
employees discovered to be union organizers or close the
dealership if it was organized. Third, the March 5 and
May 11 interrogations were by the Respondent’s highest
and second highest ranking officials: Owner Zaheri and
Parts and Service Director Nickerson. See Bloomfield
Health Care, supra, at 253. Finally, the nature of the
information sought by Nickerson and Zaheri strongly
supports a finding that their questions were coercive.
Nickerson sought the identity of the union organizers,
and Zaheri sought the number and identities of those who
supported the Union by attending the May 9 union meet-
ing. See RCC Fabricators, supra at 710–711. “There
was no showing that Respondent had a valid purpose in
seeking to determine the extent of its employees’ union
activity” or the identity of the union organizers. BCE
Construction, 350 NLRB 1047, 1053 (2007). To the
contrary, as demonstrated by Garcia’s earlier 8(a)(1)
threats, the Respondent established only an unlawful
purpose in seeking this information—to discharge those
who supported the organizing drive.
Accordingly, based on our consideration of the Ross-
more House factors set forth above,9 we find that Nicker-
son’s and Zaheri’s questions constituted unlawful inter-
rogations in violation of Section 8(a)(1).
b. Creating the impression of surveillance
The judge also failed to address complaint allegations
that Garcia’s March 2 interrogations and Zaheri’s May
11 interrogations separately violated Section 8(a)(1) by
creating the impression that employees’ union activities
were under surveillance. We find merit in the General
Counsel’s exceptions and find these violations.
The Board’s test for determining whether an employer
has created an unlawful impression of surveillance is
whether, “under all the relevant circumstances, reason-
able employees would assume from the statement in
question that their union or other protected activities had
been placed under surveillance.” Frontier Telephone of
Rochester, Inc., 344 NLRB 1270, 1276 (2005). Accord:

9 This conclusion is not affected by our failure to find that the loca-
tion and method of the interrogations were coercive. It is not essential
that every Rossmore factor be established to find an 8(a)(1) interroga-
tion. RCC Fabricators, supra at 710.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1296
Bridgestone Firestone South Carolina, 350 NLRB 526,
527 (2007). The standard is an objective one, based on
the rationale that “employees should be free to partici-
pate in union organizing campaigns without the fear that
members of management are peering over their shoul-
ders, taking note of who is involved in union activities,
and in what particular ways.” Flexsteel Industries, 311
NLRB 257 (1993). Under this precedent, Garcia’s and
Zaheri’s statements violate Section 8(a)(1).
As noted above, after Garcia learned of the March 2
union meeting, he summoned individual employees to
his office and unlawfully interrogated them about
whether they attended the meeting and signed authoriza-
tion cards. Among those Garcia summoned were
Manuel Blanco and Alque Baybayan. Both testified that
Garcia prefaced his interrogations by indicating that he
already knew about the union meeting and that cards had
been distributed. Although Garcia testified that he had
learned about the union meeting from employee Ron
Adamson, he did not identify his source when interrogat-
ing Blanco and Baybayan. His failure to do so is the
“gravamen” of an impression of surveillance violation.
North Hills Office Services, 346 NLRB 1099, 1103
(2006).10 When an employer tells employees that it is
aware of their union activities, but fails to tell them the
source of that information, the employer violates Section
8(a)(1). This is because employees are left to speculate
as to how the employer obtained its information, causing
them reasonably to conclude that the information was
obtained through employer monitoring. Id. See, e.g.,
Conley Trucking, 349 NLRB 308, 315 (2007); Dallas &
Mavis Specialized Carrier Co., 346 NLRB 253, 254
(2006). By contrast, when an employer tells employees
that it learned of their union activities from another em-
ployee, or when those activities are overt such that em-
ployees would not reasonably conclude that the employer
learned of them through surveillance, the Board has
found no violation. See RCC Fabricators, supra, 352
NLRB at 702. See also Bridgestone, supra, 350 NLRB
at 527; Park N Fly, Inc., 349 NLRB 132, 133 (2007).
Here there is no evidence that the March 2 or May 9
union meetings were publicized, open events. By asking
employees at the May 11 shop meeting who had paid for
pizza at the employees’ May 9 union meeting, Zaheri
indicated that he knew about their meeting but, like Gar-
cia, failed to state the source of his information. Under
these circumstances, we conclude that employees would

10 Chairman Liebman dissented from the failure to find an impres-
sion-of-surveillance violation in North Hills Office Services, supra,
under the circumstances presented there. (346 NLRB at 1104 fn. 24.)
She agrees that the decision supports finding a violation in this case,
which does not implicate her earlier dissenting view.
reasonably assume that their union activities were under
surveillance and, therefore, that the statements by Zaheri
and Garcia violated Section 8(a)(1).
2. The General Counsel excepts to the judge’s failure
to address certain other 8(a)(1) complaint allegations,
and to his dismissal of the 8(a)(3) discharge allegation
pertaining to Patrick Rocha. For the reasons that follow,
we find it necessary to remand these allegations to the
judge for further findings and analysis.
a. The 8(a)(1) allegations
In December 2006, Parts and Service Director Nicker-
son interviewed some applicants for the Respondent’s
initial complement of technicians. Among those he in-
terviewed was Patrick Rocha, a technician with whom
Nickerson had worked at another area dealership. As
noted by the judge, “Rocha testified that when he was
hired in December 2006, Nickerson asked him whether
he was still a union member.” The General Counsel al-
leged that Nickerson’s query violated Section 8(a)(1),
and excepts to the judge’s failure to find this violation.
Resolution of this allegation turns on credibility de-
terminations that the judge must make in the first in-
stance. The judge, however, did not address the allega-
tion, make an express credibility finding regarding Ro-
cha’s testimony, or address Nickerson’s contrary testi-
mony that he did not ask employees whether they were in
a union. Nor do we find that the judge’s general credibil-
ity footnote (see fn. 2 of his decision) establishes that he
considered the allegation and implicitly rejected it on
credibility grounds. Accordingly, we shall remand this
allegation to the judge to make the necessary credibility
resolutions and determine whether an 8(a)(1) violation
has been established.
For essentially the same reason, we find it necessary to
remand two other 8(a)(1) allegations that turn on unre-
solved credibility resolutions. The first involves an al-
leged statement by Garcia, during his interrogation of
Baybayan regarding the March 2 union meeting, that
Baybayan’s pay would be cut if employees selected the
Union. The judge cited Baybayan’s testimony to this
effect, but did not reference Garcia’s denial or address
the complaint allegation that Garcia threatened Baybayan
in violation of Section 8(a)(1). In addressing this allega-
tion on remand, the judge must resolve the underlying
discrepancy between Baybayan’s and Garcia’s testi-
mony.
The judge also failed to address the complaint allega-
tion that Zaheri violated Section 8(a)(1) by threatening
employees with plant closure at the May 11 shop meet-
ing. The General Counsel argues that this allegation is
supported by Lane’s testimony that Zaheri told employ-
ees at the meeting that the Union’s unfair labor practice
STEVENS CREEK CHRYSLER JEEP DODGE 1297
charges would cost $100,000 to defend and could result
in the loss of his business (Tr. 273, 1285–1286). Zaheri
denied making any statement about the possible loss of
business (Tr. 1196–1197). In addition, the Respondent
argues that Lane’s testimony was inconsistent, noting
that on cross-examination Lane stated that he did not
“believe, I don’t recall that he actually made the refer-
ence that $100,000 would cost him his business . . . .”
(Tr. 275.) The judge did not discuss either Lane’s or
Zaheri’s testimony. Because a finding on this allegation
depends on a credibility assessment, we shall instruct the
judge on remand to resolve the credibility dispute and
determine whether a violation has been established.
b. The 8(a)(3) discharge allegation
As discussed above, Rocha was among the initial
group of technicians the Respondent hired in December
2006. The General Counsel alleged that the Respondent
unlawfully discharged Rocha on March 6, 2007, because
Rocha attended the March 2 union luncheon, and be-
cause the Respondent believed he was the leader of the
organizing campaign.
Applying the Wright Line11 analysis, the judge dis-
missed the 8(a)(3) allegation. He found that the General
Counsel satisfied his initial burden of showing that Ro-
cha’s discharge was unlawfully motivated, noting that
the Respondent knew that Rocha attended the March 2
union meeting and harbored animus as evidenced by
Garcia’s threat that he would “blow out” Rocha if he
learned that Rocha had organized the March 2 meeting.
The judge concluded, however, that “[b]ased on the
facts,” the Respondent met its Wright Line defense of
showing that it would have discharged Rocha even ab-
sent his union activities.
The General Counsel excepts, arguing that the “facts”
on which the judge relied in dismissing the allegation
rest entirely on the testimony of the Respondent’s wit-
nesses. The General Counsel asserts that the judge: pro-
vided no explanation for crediting their testimony; over-
looked evidence that undermined their testimony; failed
to address Rocha’s relevant testimony; and ignored com-
pelling documentary evidence that strongly supports a
finding that Rocha was unlawfully discharged. Because
we cannot determine from his decision whether the judge
fully considered all of the relevant evidence, we shall
remand the Rocha discharge allegation to the judge for
further analysis of this evidence, which we discuss be-
low.
The judge found that Rocha was lawfully discharged
for “attendance and productivity issues,” and not his un-

11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
ion activities. In reaching this conclusion, the judge
cited testimony from management officials Frontella,
Garcia, and Nickerson. Frontella testified that in late
January and early February he advised Rocha against
arriving late to work, leaving early, and taking long
lunches. Frontella also testified that he saw no im-
provement in this behavior and, thus, referred the matter
to Garcia. Garcia testified that he met with Rocha on
February 12, 19, and 26 and, as reflected in a computer-
ized printout memorializing the meetings, counseled him
for “taking too long to diag[nose] a job,” failing to work
40 hours a week, and producing too few “flat hours” per
week (the “counseling report”).12 Garcia testified that he
issued Rocha a final warning on February 26, and ob-
tained discharge authorization from Zaheri on February
27, when Rocha arrived late to work.
Rocha was not actually discharged, however, until
March 6. The judge noted that Garcia provided several
reasons for this delay. Garcia testified that he intended
to execute the February 27 discharge decision on Friday,
March 2, but was prevented from doing so because of an
unexpected visit by a Chrysler factory representative and
because Rocha left early that afternoon. Rocha’s termi-
nation check was prepared on Monday, March 5, but
Garcia testified that he could not find Rocha to hand it to
him and discharge him that day. He was finally dis-
charged the next day and given a “separation report”
stating that Rocha’s “ability to get the work done cor-
rectly and on time” was discussed with him on February
19 and 26, but “no improvement” was shown and he “left
early without permission—did not advise anybody that
he left.” Further, according to Nickerson, whose testi-
mony the judge explicitly credited, “Rocha cost the deal-
ership time and money by clocking out early.”
We agree that the foregoing testimony of the Respon-
dent’s officials, as well as timeclock records cited by the
judge, could support a conclusion that Rocha had signifi-
cant time and attendance problems. However, there was
countervailing record evidence, none of which the judge
discussed or appeared to have considered.
First, the judge did not address Rocha’s testimony that
his early departures and extended lunches were due to the
Respondent’s failure to assign him a sufficient number of
repair work orders on a regular basis. Rocha testified
that this problem began in late January and that he com-
plained to Garcia about it. On cross-examination, Garcia
admitted that Rocha complained that he was not receiv-
ing enough work.

12 Flat hours were described as hours billed to a customer for vehicle
repairs, for which a technician is paid, as opposed to “time-clock”
hours which reflect the time that a technician is on the job, but not
necessarily performing repair work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1298
Rocha further testified that as a result of not receiving
enough work, he often clocked out and left, rather than
remaining idle. Rocha explained, and several employees
and service manager Frontella confirmed, that clocking
out when there was no work was accepted shop practice,
provided there was management permission. Rocha tes-
tified that he followed this procedure and was denied
permission to leave only once—on March 2—after the
Respondent had assertedly decided to discharge him.13
Rocha’s testimony is significant because it suggests
that the circumstances on which the Respondent purport-
edly relied to discharge him—his extended absences—
may have been created by the Respondent’s failure to
assign him enough work. Because we cannot determine
whether the judge failed to address this testimony
through oversight, or implicitly rejected it as not credi-
ble, we shall direct the judge to address Rocha’s testi-
mony.14
Second, Rocha testified that Garcia never counseled
him or gave him a final warning about any of the atten-
dance/performance issues set forth in either the counsel-
ing report prepared by Garcia or the separation report he
received on March 6.15 The judge must consider this
testimony in addition to Garcia’s when making his credi-
bility determination.
Finally, we find it necessary for the judge to re-
examine his finding that the Respondent decided to dis-
charge Rocha on February 27. This finding, based on the
testimony of Garcia and Zaheri, is critical to the Wright
Line analysis because it would establish that the dis-
charge could not have been unlawfully motivated by Ro-

13 Garcia generally denied that such permission was given (Tr.
1082), but Rocha testified that it was Frontella whom Rocha notified
when he left early (Tr. 318). Frontella did not contradict Rocha’s tes-
timony.
14 In considering Rocha’s testimony, the judge should also address
the General Counsel’s following arguments in response to Nickerson’s
testimony:
(1) a mechanic cannot possibly cost the Respondent money by clock-
ing out early when there is no assigned work to do, because they are
not paid for this nonwork time; and
(2) Rocha did not cost the Respondent money by leaving work early
without finishing repair orders 51029, 51558, 52156 and 52129, be-
cause, as Rocha explained, his failure to finish the repairs on the days
in question was due to a lack of parts which the Respondent had to or-
der. (The General Counsel further asserts that Rocha’s failure to com-
plete order 50799 on time was due to Rocha’s inability to diagnose the
problem, not attendance.)
15 The General Counsel argues that the counseling and separation re-
ports support Rocha’s testimony that he was never counseled by Gar-
cia, as evidenced by the absence of notation in either report that Rocha
was given a final warning on February 26, and the absence of any ref-
erence in the separation report of the February 12 counseling session,
which Garcia asserted was the main counseling session. The judge
should address this argument on remand.
cha’s union activities, of which the Respondent was not
aware until March 2. There is record evidence, however,
that contradicts Garcia’s and Zaheri’s testimony and
suggests that the discharge decision was not made until
after the Respondent learned of Rocha’s union activi-
ties.16
Specifically, Zaheri’s written statement to a Board
agent, investigating the underlying unfair labor practice
charges, states that Rocha arrived late on February 27,
left early on March 1 and 2, and “[o]n the following
Monday, March 5 he did not come in or call and the de-
cision to terminate him was made” (GC Exh. 38). Sec-
ond, the Respondent’s attorney submitted a position
statement during the investigative stage of this proceed-
ing that recapped discussions with Rocha during the Feb-
ruary counseling sessions, and concluded that “[n]o cor-
rection of the problems was evident on March 6, 2007,
including an early unauthorized departure. Accordingly,
Rocha was terminated on March 6, 2007” (GC Exh.
34).17 And finally, the judge’s finding that the discharge
decision was made on February 27 is at odds with Gar-
cia’s unlawful threat to Lane, after learning of the March
2 union meeting, that Garcia “would blow [Rocha] out”
if it was determined that Rocha organized the meeting.
Because we are unable to determine whether the judge
considered any of the foregoing evidence in concluding
that the Respondent decided on February 27 to discharge
Rocha, we shall direct the judge to address this evidence
on remand as part of the overall reanalysis of Rocha’s
alleged 8(a)(3) discharge.
Conclusion
As set forth above, the judge found that the Respon-
dent committed multiple violations of Section 8(a)(1), as
referenced in footnotes 3 and 8 of this decision. In Sec-
tion 1, we have found that the Respondent committed
additional violations of Section 8(a)(1) by interrogating
employees and creating the impression that their union
activities were under surveillance.
In section 2, we have found that the judge failed to ad-
dress several 8(a)(1) allegations that require threshold

16 If, as the judge found, the Respondent made the decision to dis-
charge Rocha on February 27, before learning of his March 2 union
activities, we do not understand the basis for his finding that the Gen-
eral Counsel established a “prima facie showing” of an 8(a)(3) viola-
tion.
17 The reference in this position statement to “an early unauthorized
departure” as a reason for Rocha’s discharge is reiterated in Rocha’s
separation report (GC Exh. 15) and in the Respondent’s letter to the
state unemployment agency in connection with Rocha’s application for
benefits (GC Exh. 31). In light of Rocha’s testimony that March 2, was
the only day on which he left early without authorization, these docu-
ments are significant to the issue of when the discharge decision was
made.
STEVENS CREEK CHRYSLER JEEP DODGE 1299
credibility determinations, findings, and analysis. We
have also found, in section 2, that it is necessary to re-
mand to the judge the 8(a)(3) discharge allegation per-
taining to Patrick Rocha. In assessing this 8(a)(3) allega-
tion, the judge shall consider the additional evidence
cited above, and the record as a whole, and shall make
credibility findings, and issue findings of fact and con-
clusions of law. We shall sever these allegations from
the remaining complaint allegations that we have ruled
on today.
Further, in light of the violations that we have found in
section 1, and after the judge determines whether the
remanded allegations discussed in section 2 warrant find-
ing any additional violations, the judge should reevaluate
the appropriateness of a Gissel bargaining order. In ad-
dressing this remedial issue, the judge should decide the
preliminary question of whether the Union obtained au-
thorization card support from a majority of employees in
an appropriate unit. See, e.g., Evergreen America Corp.,
348 NLRB 178, 179 (2006).18
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Stevens
Creek Chrysler Jeep Dodge, Inc., San Jose, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraphs.
“(b) Creating the impression of surveillance of em-
ployees’ union activities.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
IT IS FURTHER ORDERED that the complaint allegations
pertaining to the interrogation and discharge of Patrick
Rocha, the March 2 pay cut threat by Service Manager
James Garcia, the May 11 plant closure threat by Owner
Mathew Zaheri, and the unilateral change and refusal to
provide information are severed and remanded to the
judge for consideration of the matters discussed in sec-
tion 2 and footnote 18 of this decision.
IT IS FURTHER ORDERED that the judge shall make the
credibility determinations and factual findings necessary

18 Having determined that a Gissel bargaining order was not appro-
priate, the judge dismissed derivative 8(a)(5) allegations that the Re-
spondent unilaterally eliminated a bargaining unit position and failed to
provide the Union requested information that was relevant and neces-
sary for collective bargaining. The necessity to reconsider these allega-
tions is dependent on the outcome of the judge’s reconsideration of the
Gissel bargaining order issue. Accordingly, these 8(a)(5) allegations
shall also be severed and remanded.
The judge is also invited on remand to address the appropriateness
of the remedial relief sought by the Charging Party. See fn. 5, above.
to resolve those issues, and that he shall prepare and
serve on the parties a supplemental decision setting forth
those determinations and findings, conclusions of law,
and a recommended Order based on those determina-
tions, findings, and conclusions. Following service of
the supplemental decision on the parties, the provisions
of Section 102.46 of the Board’s Rules and Regulations
shall be applicable.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate employees about
their union activities or the union activities of fellow
employees.
WE WILL NOT create the impression of surveillance of
employees’ union activities.
WE WILL NOT require employees to execute union
withdrawal cards in order to obtain employment.
WE WILL NOT threaten plant closure or job termination
in order to discourage union activity.
WE WILL NOT threaten job applicants that they will not
be hired because of their union affiliation.
WE WILL NOT grant wage increases in order to discour-
age union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
STEVENS CREEK CHRYSLER JEEP DODGE, INC.
David B. Reeves, Atty. and Cecily A. Vix, Atty., for the General
Counsel.
Daniel T. Berkley, Atty. (Gordon & Rees, LLP), of San Fran-
cisco, California, for the Respondent.
Caren Sencer, Atty. (Weinberg, Roger & Rosenfeld, P.C.), of
Alameda, California, for the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1300
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at San Francisco, California, on November 6–9, 14,
19–20, and 26–27, 2007. On April 2, 2007, Machinists District
Lodge 190, Machinists Local Lodge 1101, International Asso-
ciation of Machinists and Aerospace Workers, AFL–CIO (the
Union) filed the original charge in Case 20–CA–33367 alleging
that Stevens Creek Chrysler Jeep Dodge, Inc. (the Respondent)
committed certain violations of Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended (the Act). On May 3,
the Union filed the first amended charge alleging that Respon-
dent had violated Sections 8(a)(1) and (3) of the Act.1 A sec-
ond amended charge was filed on June 12, and on August 14, a
third amended charge was filed. The Union filed the charge in
Case 20–CA–33562 on August 29. The Union filed the charge
in Case 20–CA–33603 on September 27. The charge in Case
20–CA–33655 was filed on October 18, 2007. The Regional
Director for Region 20 of the National Labor Relations Board
issued a complaint and notice of hearing against Respondent in
Case 20–CA–33367 on August 24, 2007. The consolidated
complaint in Cases 20–CA–33367 and 20–CA–33562 issued on
October 10, 2007. An amended consolidated complaint (com-
plaint) issued in Cases 20–CA–33367, 20–CA–33562, 20–CA–
33603, and 20–CA–33655 on October 29, 2007. The complaint
alleges that Respondent unlawfully discharged employee Pat-
rick Rocha, Sr., and refused to hire employee Mark Higgins for
their union membership or activities. Further, General Counsel
alleges that Respondent interrogated employees about their
union activities, threatened to close its business, threatened to
discharge employees, created the impression that employee
union activities were under surveillance, solicited grievances,
and promised increased benefits in order to discourage union
activities. The complaint alleges that a bargaining order is nec-
essary to remedy these unfair labor practices. Finally the com-
plaint alleges that Respondent unilaterally laid off an employee
without bargaining with the Union after the bargaining obliga-
tion arose. Respondent filed timely answers to the complaints,
denying all wrongdoing.
All parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses, and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing.2

1 All dates are in 2007 unless otherwise indicated.
2 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Manufacturing Co., 369 U.S. 404, 408 (1962). As to
those witnesses testifying in contradiction to the findings, herein, their
testimony has been discredited, either as having been in conflict with
credited documentary or testimonial evidence or because it was in and
of itself incredible and unworthy of belief.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation with an office and
principal place of business located in San Jose, California,
where it is engaged in the business of the sale and service of
automobiles. During the past 12 months, Respondent received
gross revenues in excess of $500,000. During the same period
of time, Respondent purchased and received goods and services
valued in excess of $5000 from outside the State of California.
Accordingly, Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Respondent admits and I find that the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent began operating its car dealership in San Jose,
California, in December 2006. Respondent hired only two of
the mechanics plus the service manager employed by its prede-
cessor Chris’ Dodge World. The mechanics at Chris’ Dodge
World had been represented by the Union. In December 2006,
employee Rick Avelar met with Richard Breckenridge, busi-
ness representative for the Union, and signed a union authoriza-
tion card. In January 2007 Breckenridge met with employee
Jeff Wells who signed a union authorization card.
On March 2, Breckenridge held a meeting at a local restau-
rant with a group of nine mechanics from the dealership.
Breckenridge told the employees of the benefits of unioniza-
tion. Breckenridge explained that the union authorization cards
would be used to represent the employees, to make a demand
for recognition, to petition the Board for an election, and to
prove that the employees were part of an ongoing organizing
campaign. Employees Michael Lane, Patrick Rocha, Gilbert
Bumagat, Paul Seefeld, Manuel Blanco, Alque Baybayan, and
Stephen Rother signed authorization cards. Avelar and Wells
had previously signed authorization cards. The cards state:
I, the undersigned, an employee of (print company name)
__________ herby authorize the International Association of
Machinists and Aerospace workers (IAM) to act as my collec-
tive bargaining agent with the company for wages, hours and
working conditions.
Avelar testified that on December 7, 2006, right after he was
offered employment, Service Manager Mike Frontella told
Avelar that he needed to obtain a union withdrawal card in
order to work for Respondent. Avelar obtained a withdrawal
card and gave it to Frontella on his first day of work. Frontella
made a photocopy of the withdrawal card and returned it to
Avelar. When Wells went to work on December 11, Frontella
asked if he had a union withdrawal card. Wells obtained a
withdrawal card and gave it to Chris Nickerson, parts and ser-
vice director. Nickerson made a photocopy of the card and
returned it to Wells. On or about January 15, before employee
Paul Seefeld began work for Respondent, Frontella told him
that Respondent required a withdrawal card before an employee
could start work. Frontella testified that he simply informed
STEVENS CREEK CHRYSLER JEEP DODGE 1301
applicants that they could sign a union withdrawal card, avail-
able at the union hall, to protect their union membership. Fron-
tella denied that he told any applicant that Respondent required
a union withdrawal card.
After the union meeting of March 2, 2007, employee Ron
Adamson questioned Michael Lane about the union meeting.
Adamson, who opposed the Union, left the shop floor but re-
turned and told Lane that James Garcia, service manager,
wanted to speak with Lane. According to Lane, Garcia asked
Lane who went to lunch and if there had been a union meeting.
Garcia asked if Lane had signed a union card, who had signed
cards, and who the organizers were. Lane refused to answer
these questions. Garcia responded that everyone was going to
get in trouble, or fired, and that heads would roll if he tried to
organize the shop. According to Lane, Garcia said that if Re-
spondent were picketed, a lot of people would get in trouble
and possibly lose their jobs and that heads would roll. Garcia
further threatened that he would “run the shop with three peo-
ple if he had to shut it down.” According to Lane, Mathew
Zaheri, Respondent’s owner, would be extremely upset if he
found out Lane was organizing for the Union. Garcia threat-
ened that Zaheri would never let the shop be Union and that he
would shut the doors.
While Lane was in Garcia’s office, the phone rang and Gar-
cia answered it stating “Chris, I am talking to Mike Lane, trying
to get information about this meeting.” Garcia stated that if he
found out employees and Rocha organized the meeting he
would “blow them out.”
Employee Paul Seefeld was also summoned to Garcia’s of-
fice and questioned about the lunch meeting. Garcia asked See-
feld if he attended the lunch, if the union representative was
present, and whether he had signed a union card. Garcia also
called employee Manuel Blanco into his office and asked
Blanco if he had attended the meeting. Garcia asked whether
the union representative was present and whether Blanco had
signed anything.
On March 5, Garcia called Baybayan into his office and de-
manded to know if he went to lunch with the Union on March 2
and if he had signed a union card. Baybayan answered that he
had signed a card and Garcia said that the Union would cause a
pay cut.
General Counsel contends that on March 5, Garcia ap-
proached Wells at his stall and asked if there had been a union
meeting and told him that he had caused a lot of problems.
Garcia said that the luncheon had caused a lot of commotion
with management and created problems in the shop. This evi-
dence is contained in a pretrial affidavit given by Wells during
the investigation by the Region. However, at trial Wells testi-
fied that his affidavit was untrue. Wells further testified that he,
Lane, and Avelar had conspired to give testimony to help the
Union’s case and to help the case of employee Patrick Rocha. I
do not credit Wells’ testimony that Lane and Avelar agreed to
testify falsely. However, I did not find Wells to be a credible
witness and do not credit his pretrial affidavit either.
On March 5, Nickerson called Lane on his cell phone and
asked if Lane knew who was behind the union organizing ef-
fort.
On March 8 or 9, Mark Higgins a former employee of Chris’
Dodge World went to the dealership and asked Garcia for a job.
Higgins, a relative of Breckenridge, had previously applied for
work with Respondent. According to Higgins, Garcia said that
he was going to hire him but now he could not. Higgins asked
if he was blackballed due to Breckenridge and Garcia an-
swered, “yes, pretty much.”
General Counsel contends, based on a pretrial affidavit from
employee Gilbert Bumagat that Garcia questioned Bumagat
about the union meeting and told Bumagat that the Union was
going to cause a pay cut. However, at trial Bumagat disavowed
his pretrial affidavit. I place no reliance on Bumagat’s testi-
mony.
In April, Garcia asked Blanco whether he had attended a
lunch and who was there. Blanco answered that Breckenridge
was there and Garcia responded by telling Blanco not to get
involved in things. Garcia told Blanco to remember that it was
a nonunion shop.
Zaheri held approximately three meetings in which the Un-
ion was discussed.3 At the first of these meetings, in early May,
Zaheri brought out blue prints for a new service department and
said that he was going to build a new shop. At this meeting
Zaheri stated that he had paid for the training of the employees
and that he had made an investment in his technicians and pro-
claimed, “I own you.” Zaheri made a statement to the effect
that if employees did not do their jobs correctly they would be
replaced.
At another meeting on May 11, Zaheri mentioned a union
meeting of May 9, and questioned who had paid for the pizza.
Zaheri stated that he did not know why people wanted to make
him out as a monster and why they wanted to destroy the busi-
ness. He stated that it would cost him $100,000 to defend the
charges and prove that he had done nothing wrong. Zaheri said
“don’t let some outside people influence you.” Finally, he in-
vited employees to talk to him and that he would gladly discuss
anything.
In early April, Garcia told Avelar that Wells was going to
give Zaheri a chance and that Wells was done with the Union.
In late May, Garcia told Avelar that Seefeld was done with the
Union and that Seefeld was not going to attend any more union
meetings.
On May 16, the Union filed a petition in Case 32–RC–5505
seeking to represent Respondent’s mechanics. That same date,
the Union sent Respondent a letter requesting that Respondent
recognize and bargain with the Union as the exclusive represen-
tative of the employees.
Respondent implemented wage raises for its employees ef-
fective May 14. Mechanics Adamson, Wells, and Avelar re-
ceived a $1-an-hour raise. Employees Ring and Blanco re-
ceived a $2-per-hour raise and employees Seefeld and Erick
Gonzales received a 75-cents-per-hour raise. Only these em-
ployees received a raise and there were no subsequent raises.

3 On April 2, 2007, the Union filed the original charge in Case 20–
CA–33367 alleging that Respondent committed certain violations of
Sec. 8(a)(3) and (1) of the Act. On May 3, the Union filed the first
amended charge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1302
Garcia testified that the employees were reviewed at this
time because employee Dave Ring had another job offer. Ac-
cording to Garcia, Ring needed a $2-per-hour raise in order to
stay with Respondent. Garcia took the matter to Zaheri who
allegedly told Garcia to review all the employees at that time.
Garcia performed evaluations of all the mechanics.
At the hearing, Garcia testified that he informed the employ-
ees upon their hire that they would be reviewed after 90 days of
employment. However, in his pretrial affidavit, Garcia testified
that he told employees that they would receive a review once a
year, after 6 months. Employees Avelar, Baybayan, Bumagat,
and Lane all testified that they were not told of a raise or review
when hired. Eight employees were given raises; however, none
had worked 6 months at the time of the raises.
Employee Patrick Rocha was terminated on March 6, 2
working days after he attended the union meeting of March 2.
Rocha testified that when he was hired in December 2006,
Nickerson asked him whether he was still a union member.
Rocha answered that he was on a withdrawal card from the
Union. According to Rocha, Nickerson told him that the shop
would be nonunion.
Rocha was discharged for attendance and productivity is-
sues. Garcia testified that he counseled Rocha on February 12,
19, and 26, about his attendance problems. Rocha was late on
February 27. According to Garcia, he contacted Zaheri and
recommended discharge. Zaheri approved the discharge. Garcia
testified that he intended to discharge Rocha on March 2 (the
end of the pay period), but was delayed due to the unexpected
arrival of a Chrysler factory representative. Rocha clocked out
early on March 2. Garcia gave instructions to prepare Rocha’s
final check on Monday morning, March 5. The check gives
Rocha credit for 8 hours on March 5. Garcia could not find
Rocha after the check had been prepared so he terminated the
employee on March 6. Rocha was discharged when he reported
for work on March 6. Rocha’s separation notice states “Pat-
rick’s inability to get the work done correctly and on time” and
“left early without permission did not advise anybody that he
left.”
Frontella testified that he spoke to Rocha in January 2007
about his late arrivals, his long lunches, and early departures.
Frontella also testified that he spoke to Garcia about Rocha’s
attendance the second week of February. He further testified
that he spoke to Rocha about diagnostic issues.
In the period from January 22 to March 2, 2007 (30 working
days), Rocha worked less than a 6-hour day on 11 occasions
and took more than an hour lunch on 9 days. On 4 days, Rocha
took more than a 2-hour lunch. During that same 30-day period,
Rocha left work early on 29 days.
Mark Higgins worked at Respondent’s predecessor. It is un-
disputed that he was a good technician. Zaheri testified that he
did not hire Higgins in December 2006 because he was advised
by Frontella that Higgins was not a team player and did not
work well with others. Parts Manager Juan Robles also advised
Zaheri that no one in the parts department wanted to work with
Higgins. Robles recommended that Higgins not be hired. Also
Controller Jean Hanicke recommended that Higgins not be
hired. The evidence that Higgins had issues in the parts depart-
ment was corroborated.
Higgins again sought work with Respondent in March 2007.
Garcia wanted to hire Higgins. Garcia told Zaheri that he be-
lieved he could work with Higgins. However, Zaheri would not
approve the hire based on the information he had received in
December 2006. Zaheri told Garcia that he did not believe Hig-
gins would change.
Higgins testified that Garcia told him, “Well, I was going to
hire you, but we cannot hire you at this time.” Higgins asked if
he was blackballed because his cousin was Richard Brecken-
ridge and Garcia replied, “Pretty much, so.” Garcia denies this.
General Counsel asserts that Respondent should be ordered
to bargain with Respondent as a remedy for its unfair labor
practices. Based on this bargaining order, General Counsel
contends that Respondent violated Section 8(a) (5) by not bar-
gaining with the Union when it eliminated the job of employee
Steve Rother, a lube technician. Further, General Counsel con-
tends that Respondent refused to bargain with the Union in
August 2007, when it failed and refused to furnish the Union
with requested information relevant to collective bargaining.
B. Analysis and Conclusions
1. Preemployment conduct
I find that Frontella told Avelar that he needed to obtain a
union withdrawal card in order to work for Respondent. Avelar
obtained a withdrawal card and gave it to Frontella on his first
day of work. Frontella made a photocopy of the withdrawal
card and returned it to Avelar. When Wells went to work on
December 11, Frontella asked if he had a union withdrawal
card. On or about January 15, before Seefeld began work for
Respondent, Frontella told him that Respondent required a
withdrawal card before an employee could start work. Solicit-
ing and requiring employees holding union membership to
withdraw their union membership violates Section 8(a)(1) of
the Act. Bridgeway Oldsmobile, 281 NLRB 1246, enfd. mem.
NLRB v. Bridgeway Oldsmobile, 933 F.2d 1015 (9th Cir.
1991). Accordingly, I find Respondent violated Section 8(a)(1)
by requiring Avelar and Seefeld to withdraw from the Union.
2. Alleged threat of plant closure and job loss
I find that Garcia told Lane that everyone was going to get in
trouble, or fired, and that heads would roll if he tried to organ-
ize the shop. Garcia said that if Respondent were picketed, a lot
of people would get in trouble and possibly lose their jobs and
that heads would roll. Garcia further threatened that he would
“run the shop with three people if he had to shut it down.” Gar-
cia threatened that Zaheri would never let the shop be Union
and that he would shut the doors. While Lane was in Garcia’s
office, the phone rang and Garcia answered it stating, “Chris, I
am talking to Mike Lane, trying to get information about this
meeting.” Garcia stated that if he found out employees and
Rocha organized the meeting he would “blow them out.” Such
conduct restrains and coerces employees in the exercise of the
right to select a bargaining representative of their own choice.
See Winges Co., 263 NLRB 152 (1982); A & A Ornamental
Iron, Inc., 259 NLRB 1019 (1982). See also San Souci Restau-
rant, 235 NLRB 604 (1978); Bell Burglar Alarms, Inc., 245
NLRB 990 (1979). Accordingly, I find that Respondent vio-
lated Section 8(a)(1) by these threats.
STEVENS CREEK CHRYSLER JEEP DODGE 1303
A threat of termination in retaliation for engaging in pro-
tected activity is the ultimate threat an employer can convey to
an employee. Central Valley Meat Co., 346 NLRB 1078
(2006). During Garcia’s March 2 interrogation of Lane, Gar-
cia’s statement he would “blow out” Rocha if he was behind
the union organizing was a direct threat of termination in re-
taliation for union activities. Accordingly, I find Respondent
violated Section 8(a)(1) of the Act.
3. The interrogation
Interrogation of employees is not unlawful per se. In deter-
mining whether or not an interrogation violates Section 8(a)(1)
of the Act, the Board looks at whether under all the circum-
stances the interrogation reasonably tends to interfere with,
restrain, or coerce employees in the exercise of their Section 7
rights. Rossmore House, 269 NLRB 1176 (1984); Sunnyvale
Medical Clinic, 277 NLRB 1217(1985). Some of the factors
used by the Board under its totality of the circumstances ap-
proach have been: the background of the interrogation, the
nature of the information sought, the identity of the questioner,
and the place and method of the interrogation. Shen Automo-
tive, 321 NLRB 586, 592 (1996).
On March 2 and 5, Service Director Garcia called employees
Blanco, Lane, and Seefeld into his office for individual ques-
tioning about the meeting of March 2. Garcia asked who was at
the meeting for the Union and whether the employees had
signed union authorization cards. Garcia similarly questioned
Baybayan about the meeting. Garcia continued to question
Blanco and Seefeld throughout the spring.
Here, I find that the interrogations by Garcia tended to inter-
fere with and restrain employees in their organizing activities.
First, the interrogation took place in the office of Service Direc-
tor Garcia. This took place immediately after Respondent had
knowledge of the fledgling organizing effort. The interrogation
of Lane took place during a meeting at which Garcia said that if
Respondent were picketed, a lot of people would get in trouble
and possibly lose their jobs and that heads would roll. Garcia
further threatened that he would “run the shop with three peo-
ple if he had to shut it down.” Garcia threatened that Zaheri
would never let the shop be Union and that he would shut the
doors. While on the phone with Nickerson, Garcia stated that if
he found out employees and Rocha organized the meeting he
would “blow them out.” Under these circumstances, employees
would reasonably conclude that union activities would lead to
adverse action by Garcia and Respondent. Accordingly, I find
that Respondent violated Section 8(a)(1) of the Act.
General Counsel contends that Garcia gave the impression of
surveillance when he told employees that he knew of the union
lunch. While I found that Garcia unlawfully interrogated em-
ployees, I do not find that he gave the impression of surveil-
lance.
4. The alleged solicitation of grievances
The Board has held that, in the absence of a previous prac-
tice of doing so, the solicitation of grievances by an employer
during an organizational campaign violates the Act when the
employer promises to remedy those grievances. See Center
Construction Co., 345 NLRB 729 (2005), enfd. in part, denied
in part 482 F.3d 425 (6th Cir. 2007). The solicitation of griev-
ances alone is not unlawful but it raises an inference that the
employer is promising to remedy the grievances. Uarco, Inc.,
216 NLRB 1, 2 (1974).
The record shows that Zaheri invited employees to come to
his office to discuss anything. However, Zaheri had an open
door policy. Further Zaheri did not offer to remedy grievances.
Accordingly, I do not find a violation of the Act.
5. Promise of benefits
General Counsel contends that Zaheri unlawfully promised
benefits to employees by displaying the blue prints for the new
shop at a meeting in early May. I find that the planned new
shop and Zaheri’s investment therein, was unconnected to the
Union’s organizational drive. I further find that presentation of
this plan to the employees was unconnected to the union orga-
nizing. I find that a reasonable employee would not believe that
the proposed new shop was designed to obtain employee with-
drawal from union activities. Accordingly, I do not find that
presentation of the blue prints violated the Act.
6. Threats of termination —Threat to Higgins
It is a violation of Section 8(a)(1) for an employer to tell an
applicant for employment that it would not hire a person affili-
ated with the union. J & R Roofing Co., 350 NLRB 694 (2007);
T.C. Broome Construction Co., 347 NLRB 656 (2006). Garcia
told Higgins, “Well, I was going to hire you, but we cannot hire
you at this time.” Higgins asked if he was blackballed because
his cousin was Richard Breckenridge and Garcia replied,
“Pretty much, so.” Although the statement originated with Hig-
gins, I find that Garcia acquiescence in the accusation by Hig-
gins amounted to an unlawful threat. Accordingly, I find that
Respondent violated Section 8(a)(1) of the Act.
7. The pay raises
In Capital EMI Music, Inc., 311 NLRB 997, 1012 (1993),
the Board stated the test with respect to the announcement
and/or grant of benefits:
The law on this point is clear, to promise or grant benefits to
employees in order to dissuade them from supporting a union
violates Section 8(a)(1) of the Act. See e.g., Mack’s Super-
markets, 288 NLRB 1082 at 1099 (1988). The announcement
and/or grant of wages or other benefits increases is legally
permissible if it can be shown that an employer was following
its past practice regarding such increases or that the increases
were planned and settled upon before the advent of union ac-
tivity.
In his pretrial affidavit Garcia testified that he told employ-
ees that they would receive a salary review after 6 months.
Employees Avelar, Baybayan, Bumagat, and Lane all testified
that they were not told of a raise or review when hired. Eight
employees were given raises; however, none had worked 6
months at the time of the raises. No raises were given thereaf-
ter. Respondent has a defense to the raise given to employee
Ring that it had to give him a raise in order to meet an offer by
another dealership. However, that defense does not cover the
other raises. Under these circumstances, Respondent has not
shown that the pay increases were pursuant to a past practice or
were planned and settled upon before the advent of the union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1304
activity. Accordingly, I find that Respondent has violated Sec-
tion 8(a)(1) of the Act.
8. The discharge of Patrick Rocha
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Gen-
eral Counsel must show, by a preponderance of the evidence,
that protected conduct was a motivating factor in the em-
ployer’s adverse action. The General Counsel meets this initial
burden by demonstrating that the employee engaged in pro-
tected activity, the employer knew of that activity, and the em-
ployer harbored animus against the protected activity. The bur-
den of persuasion then shifts to the employer to show that it
would have taken the same adverse action in the absence of the
protected activity. United Rentals, 350 NLRB 951 (2007) (cit-
ing Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961
(2004)). The employer’s burden on rebuttal is not met by a
showing merely that it had a legitimate reason for its action.
Rather, the employer “must persuade by a preponderance of the
evidence that the same action would have taken place even in
the absence of the protected conduct.” Roure Bertrand Dupont,
Inc., 271 NLRB 443, 443 (1984).
It has long been held that there are five principal elements
that constitute a prima facie case insofar as Section 8(a)(3) and
(1) are concerned. The first is that the employee alleged to be
unlawfully disciplined must have engaged in union or protected
activities. The second is that the employer knew about those
protected activities. Third, there must be evidence that the em-
ployer harbored animus against those individuals because of
such activities. Fourth, the employer must discriminate in terms
of employment. Finally, the discipline must usually be con-
nected to the protected activity in terms of timing. See e.g.
Goodyear Tire & Rubber Co., 312 NLRB 674 (1993).
I find that General Counsel has made a prima facie showing
that Respondent was motivated by Rocha’s union activities in
discharging the employee. Rocha attended the union lunch of
March 2. Garcia learned that Rocha had been at the meeting.
Garcia threatened to “blow out” Rocha. Rocha was discharged
shortly thereafter.
The burden of persuasion then shifts to Respondent to show
that it would have taken the same action in the absence of the
protected activity. Garcia counseled Rocha on February 12, 19,
and 26, about his attendance problems. Rocha was late on Feb-
ruary 27. Garcia contacted Zaheri and recommended discharge.
Zaheri approved the discharge. Garcia intended to discharge
Rocha on March 2 (the end of the pay period), but was delayed
due to the unexpected arrival of a Chrysler factory representa-
tive. Rocha clocked out early on March 2. Garcia gave instruc-
tions to prepare Rocha’s final check on Monday morning,
March 5. The check gives Rocha credit for 8 hours on March 5.
Garcia could not find Rocha after the check had been prepared
so he terminated the employee on March 6. Rocha was dis-
charged when he reported for work on March 6. Rocha’s sepa-
ration notice states, “Patrick’s inability to get the work done
correctly and on time” and “left early without permission did
not advise anybody that he left.”
Frontella spoke to Rocha in January 2007 about his late arri-
vals, his long lunches, and early departures. Frontella spoke to
Garcia about Rocha’s attendance the second week of February.
He further also spoke to Rocha about diagnostic issues.
In the period from January 22 to March 2, 2007 (30 working
days), Rocha worked less than a 6-hour day on 11 occasions
and took more than an hour lunch on 9 days. On 4 days, Rocha
took more than a 2-hour lunch. During that same 30-day period,
Rocha left work early on 29 days. Nickerson credibly testified
that Rocha cost the dealership time and money by clocking out
early.
Based on the facts, I find that Respondent has shown that
Rocha would have been discharged even in the absence of his
union activities.
9. The failure to hire Mark Higgins
In FES, 331 NLRB 9, 12 (2000), the Board set forth the fol-
lowing test for a refusal to hire case:
To establish a discriminatory refusal to hire, the General
Counsel must, under the allocation of burdens set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), first show the
following at the hearing on the merits: (1) that the respondent
was hiring, or had concrete plans to hire, at the time of the al-
leged unlawful conduct; (2) that the applicants had experience
or training relevant to the announced or generally known re-
quirements of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such requirements,
or that the requirements were themselves pretextual or were
applied as a pretext for discrimination; and (3) that antiunion
animus contributed to the decision not to hire the applicants.
Once this is established, the burden will shift to the respon-
dent to show that it would not have hired the applicants even
in the absence of their union activity or affiliation. If the re-
spondent asserts that the applicants were not qualified for the
positions it was filling, it is the respondent’s burden to show,
at the hearing on the merits, that they did not possess the spe-
cific qualifications the position required or that others (who
were hired) had superior qualifications, and that it would not
have hired them for that reason even in the absence of their
union support or activity. In sum, the issue of whether the al-
leged discriminatees would have been hired but for the dis-
crimination against them must be litigated at the hearing on
the merits.
If the General Counsel meets his burden and the respondent
fails to show that it would have made the same hiring deci-
sions even in the absence of union activity or affiliation, then
a violation of Section 8(a)(3) has been established. The ap-
propriate remedy for such a violation is a cease-and-desist or-
der, and an order to offer the discriminatees immediate in-
statement to the positions to which they applied or, if those
positions no longer exist, to substantially equivalent positions,
and to make them whole for losses sustained by reason of the
discrimination against them.
In the instant case, I find that General Counsel has established a
prima facie case that Higgins was not hired because of his un-
ion affiliation: Respondent was hiring at the time and Garcia
wanted to hire Higgins. Higgins was a skilled mechanic. Garcia
answered affirmatively when Higgins accused the Respondent
STEVENS CREEK CHRYSLER JEEP DODGE 1305
of blackballing him because of his relationship to Breckenridge,
the union agent. The burden shifts to Respondent to show that it
would not have hired Higgins even in the absence of his union
activity or affiliation.
In the instant case, prior to any union activity, Zaheri chose
not to hire Higgins based on the recommendations he received
from Frontella, Robles, and Hanicke. The evidence that Higgins
had issues in the parts department was corroborated. When
Garcia sought to hire Higgins, Zaheri based on the prior rec-
ommendations would not approve the hiring. Zaheri told Garcia
that he did not believe Higgins could change. Accordingly, I
find that Respondent has met its burden of showing that Hig-
gins would not have been hired even in the absence of his anion
affiliation.
C. The Request for a Bargaining Order
Under Gissel, NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), the Board will issue a remedial bargaining order, absent
an election, in two categories of cases. The first category is
“exceptional” cases, those marked by unfair labor practices so
“outrageous” and “pervasive” that traditional remedies cannot
erase the coercive effects, thus rendering a fair election impos-
sible. The second category involves “less extraordinary cases
marked by less pervasive practices which nonetheless still have
the tendency to undermine the majority strength and impede
election processes.” Id at 614. In the latter category of cases,
the “possibility of erasing the effects of past practices and of
ensuring a fair election . . . by use of traditional remedies,
though present, is slight and . . . employee sentiment once ex-
pressed [by authorization] cards would, on balance, be better
protected by a bargaining order.” Id.
In determining the propriety of a bargaining order, the Board
examines the seriousness of the violations and the pervasive
nature of the conduct, considering such factors as the number of
employees directly affected by the violations, the size of the
unit, the extent of the dissemination among employees, and the
identity and position of the individuals committing the unfair
labor practices. Intermet Stevensville, 350 NLRB 1349 (2007),
citing Abramson, LLC, 345 NLRB 171, 176 (2005) (citing
Garvey Marine, Inc., 328 NLRB 991, 993 (1999), enfd. 245
F.3d 819 (D.C. Cir. 2001)). Accord: Holly Farms Corp., 311
NLRB 273, 281 (1993), enfd. 48 F.3d 1360 (4th Cir. 1995),
cert. denied in pertinent part 516 U.S. 963 (1995). A Gissel
bargaining order, however, is an extraordinary remedy. The
preferred route is to order traditional remedies for the unfair
labor practices and to hold an election, once the atmosphere has
been cleansed by the remedies ordered. Hialeah Hospital, 343
NLRB 391, 395 (2004) (citing Aqua Cool, 332 NLRB 95, 97
(2000)).
Respondent committed several violations of Section 8(a)(1),
including requiring employees to withdraw their union mem-
bership, threatening plant closure and job loss, interrogating
employees, threatening not to hire an employee because of his
union affiliation, and unlawfully granting wage increases. Sig-
nificantly, however, no employee lost employment as a result
of the Respondent’s unfair labor practices. Intermet Stevens-
ville, supra. These unfair labor practices do not alone support
the issuance of a Gissel bargaining order. See Hialeah Hospital,
343 NLRB 391, 395–396 (2004) (declining to impose a Gissel
bargaining order against an employer that committed a retalia-
tory discharge and multiple 8(a)(1) violations directly affecting
the entire unit, including threats, surveillance, promise of bene-
fits, and removal of benefits, in unit of only 12 employees).
In Hialeah Hospital the Board found that the case fell into
the second category of Gissel cases. Thus, the Board considered
both the extensiveness of the employer’s unfair labor practices
and their likelihood of recurrence in determining whether a
bargaining order is appropriate. Gissel at 614. The Board cited
Desert Aggregates, 340 NLRB 289, 294–295 (2003), in which
it found that traditional remedies were adequate to redress the
employer’s discriminatory layoff of two union supporters and
its solicitation and promise to remedy employee grievances in
spite of the unit’s small size of 11 employees. Similarly, in
Aqua Cool, supra, 332 NLRB at 97, the Board found that a
bargaining order was not warranted in a unit of eight employees
where the unfair labor practices committed by the employer
included only a single hallmark violation. Likewise in
Burlington Times, Inc., 328 NLRB 750, 752 (1999), the Board
declined to issue a bargaining order where an employer threat-
ened to close the plant, made noneconomic grants of benefits,
promised to improve wages and other benefits, and solicited
grievances in a unit of 11 employees.
Bearing in mind that a Gissel bargaining order is an extraor-
dinary remedy and should be reserved for those exceptional
cases where the possibility of erasing the effects of the unfair
labor practices is slight, I find that the Board’s traditional reme-
dies are sufficient here and that the issuance of a Gissel bar-
gaining order is unnecessary.
Based on failure to find a bargaining order, I find that the de-
rivative violations of a failure to bargain over the elimination of
the lube tech job and the failure to provide the Union with re-
quested information have not been established.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By unlawfully interrogating employees Respondent has
engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By soliciting and requiring employees holding union
membership to withdraw their union membership Respondent
violated Section 8(a)(1) of the Act.
5. Respondent violated Section 8(a)(1) by telling an appli-
cant for employment that it would not hire a person affiliated
with the Union.
6. By threatening plant closure and job loss Respondent vio-
lated Section 8(a)(1) of the Act.
7. By granting wage increases to employees in order to dis-
suade them from supporting the Union Respondent violated
Section 8(a)(1) of the Act.
8. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1306
9. Respondent did not otherwise violate the Act.
Remedy
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom and take certain affirmative action to effectuate the
policies of the Act.
[Recommended Order omitted from publication.]