Stevens Creek Chrysler Jeep Dodge

National Labor Relations Board - Board Decisions

Aug 25, 2011

357 N.L.R.B. 633 (N.L.R.B. 2011)

STEVENS CREEK CHRYSLER JEEP DODGE
357 NLRB No. 57
633
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–033367, 20–CA–033562, 20–CA–
033603, and 20–CA–033655
August 25, 2011
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On July 1, 2008, Administrative Law Judge Jay R.
Pollack issued a decision in this case, finding that the
Respondent committed multiple violations of Section
8(a)(1) of the Act during a union organizational cam-
paign among its automotive technicians. The judge also
dismissed several 8(a)(1) complaint allegations, an
8(a)(3) refusal-to-hire allegation, and an 8(a)(3) dis-
charge allegation.
On April 20, 2009, the two sitting members of the Na-
tional Labor Relations Board issued a Decision and Or-
der Remanding, which adopted the 8(a)(1) violations
found by the judge, as well as his dismissal of other
8(a)(1) allegations and the 8(a)(3) refusal-to-hire allega-
tion.1 In section 1 of its Decision, the Board found addi-
tional 8(a)(1) violations that had been alleged in the
complaint but were not addressed by the judge, and in
section 2 the Board remanded to the judge for further
consideration certain other 8(a)(1) allegations that he had
failed to address. The Board in section 2 also remanded
to the judge for further consideration his finding that the
Respondent did not violate Section 8(a)(3) by discharg-
ing employee Patrick Rocha. Finally, in light of the ad-
ditional violations found by the Board and any further
violations the judge might find on remand, the Board
instructed the judge to reconsider whether a Gissel2 bar-
gaining order, which he had denied in his initial decision,
was appropriate. 353 NLRB at 1298–1299. If so, the
judge was directed to reconsider several 8(a)(5) allega-
tions that he had dismissed, which were dependent on the
issuance of a Gissel bargaining order. Id. at 1299 fn. 18.
On July 29, 2009, the judge issued the attached sup-
plemental decision finding additional violations of Sec-
tion 8(a)(1). The judge reaffirmed his dismissal of the
allegation that Patrick Rocha was discharged in violation
of Section 8(a)(3), his denial of a Gissel bargaining or-

1 Stevens Creek Chrysler Jeep Dodge (“Stevens I”), 353 NLRB
1294. The Board adopted the judge’s 8(a)(1) findings to which excep-
tions were filed. There were several other 8(a)(1) violations found by
the judge to which no exceptions were filed. See fns. 3 and 8 of Ste-
vens I, 353 NLRB at 1294–1295.
2 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
der, and his dismissal of the 8(a)(5) allegations that were
dependent on that order. The General Counsel and
Charging Party Unions filed exceptions and supporting
briefs to the supplemental decision, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has carefully considered the judge’s initial
decision and the record in light of the exceptions and
briefs pertaining to that decision, and has decided to af-
firm the judge’s rulings, findings, and conclusions and to
adopt his recommended Order to the extent and for the
reasons stated in Stevens I, which is incorporated herein
by reference. See, e.g., Turtle Bay Resorts, 355 NLRB
706 (2010). The Board also affirms the remand order
contained in Stevens I for the reasons stated therein.
The Board has also considered the judge’s supple-
mental decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rulings,
findings, and conclusions except as specifically set forth
below, and to adopt the recommended Order as modified
and set forth in full below.3
We adopt the judge’s supplemental findings on remand
that the Respondent violated Section 8(a)(1) of the Act
by interrogating Patrick Rocha during his hiring inter-
view as to whether Rocha was a union member, and by
threatening employee Alque Baybayan that Baybayan’s
wage rate would decrease if employees selected the Un-
ion as their bargaining representative.4 For the reasons
set forth by the judge in his supplemental decision, we
agree that the Respondent did not violate Section 8(a)(1)
by threatening employees with plant closure during a
May 11, 2007 shop meeting.
Contrary to the judge, however, we find that the Re-
spondent’s discharge of Patrick Rocha violated Section
8(a)(3) and (1). Further, based on this 8(a)(3) finding,

3 In addition to ordering the traditional posting of the Board’s reme-
dial notice in all places where notices to employees are customarily
posted, the judge ordered in his supplemental decision that the notice be
posted electronically on the Respondent’s internet/intranet site.
On May 13, 2010, the Board issued a notice and invitation to file
briefs to the parties and interested amici in this case and several other
cases regarding whether Board-ordered remedial notices should be
posted electronically. The Charging Party Unions filed a brief.
Subsequently, in J. Picini Flooring, 356 NLRB 11 (2010), the Board
held that respondents are required to post notices electronically if they
regularly communicate with their employees or members by such
means. Accordingly, we shall include this remedial provision in the
modified Order. We shall also substitute a new notice that conforms
with the violations set forth in the Order as modified.
The Charging Parties have requested a public reading of the Board’s
notice. We deny this request, finding that the remedies we are ordering
are sufficient to effectuate the policies of the Act.
4 No exceptions were filed to these findings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 634
the additional 8(a)(1) violations found by the judge on
remand, and the violations found in Stevens I, we con-
clude that a Gissel bargaining order is necessary to rem-
edy the Respondent’s unlawful conduct. Finally, in light
of the Gissel bargaining obligation, we find that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
unilaterally eliminating the position of a unit employee
and by refusing to provide the Union with requested in-
formation necessary to prepare for collective bargaining.
I. THE DISCHARGE OF PATRICK ROCHA
As set forth more fully in Stevens I, the Respondent is
an automobile dealership that commenced operations in
December 2006. Rocha was among the initial group of
automotive technicians the Respondent hired. Rocha
was interviewed by the Respondent’s parts and service
director, Chris Nickerson, who recognized Rocha from
their employment at another area dealership and asked
him whether he was a still a union member.5
Soon after the Respondent opened, the technicians be-
gan a union organizing campaign that culminated with
the filing of an election petition on May 16, 2007.6 The
Respondent learned of the organizing activity on March
2, after a group of technicians, including Rocha, returned
to work after a lunchtime meeting with a union repre-
sentative at a local restaurant.
Later on March 2, Service Manager James Garcia sep-
arately summoned several technicians to his office and
asked whether they had attended the luncheon and signed
authorization cards. During his office interrogation of
employee Michael Lane, Garcia uttered several threats,
one of which pertained to Rocha. Garcia told Lane that
if he found out employees, and Rocha in particular, had
organized the March 2 union luncheon, he would “blow
them out.”7 For the reasons explained below, we find
that Garcia carried out this threat by discharging Rocha
on March 6.
As discussed in Stevens I, the judge found that the
General Counsel satisfied his initial burden under Wright
Line8 of showing that Rocha’s discharge was unlawfully
motivated. He found that the Respondent knew that Ro-
cha had engaged in union activity by attending the March
2 meeting, and was motivated by union animus in dis-
charging Rocha, as evidenced by Garcia’s threat to “blow

5 As referenced above, there are no exceptions to the judge’s finding
in his supplemental decision that Nickerson’s question about Rocha’s
union membership violated Sec. 8(a)(1).
6 All dates are in 2007, unless otherwise indicated.
7 In Stevens I, there were no exceptions to the judge’s findings that
Garcia’s March 2 interrogations and threats violated Sec. 8(a)(1). See
353 NLRB at 1294–1295 and fn. 8.
8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
[him] out” if he discovered Rocha had organized that
meeting. 353 NLRB at 1297. The judge further found,
however, that the Respondent successfully met its Wright
Line rebuttal burden by showing that it would have dis-
charged Rocha regardless of his union activities. Specif-
ically, the judge found that soon after Rocha was hired,
he exhibited attendance problems by leaving work early
and taking extended lunches, which resulted in his con-
tinued failure to work a required 40-hour week. The
judge further found that, after several documented coun-
seling sessions in February about this behavior and Ro-
cha’s low productivity, followed by a final warning is-
sued to him on February 26, the Respondent decided on
February 27 to discharge him but delayed implementing
that decision until March 6. The judge concluded, there-
fore, that Rocha was lawfully discharged for “attendance
and productivity issues” rather than for union activities.
In Stevens I, adopted by reference here, the Board
found that the judge’s analysis of the Wright Line de-
fense was deficient in several significant respects. The
Board observed that the judge’s findings rested almost
entirely on the testimony of the Respondent’s officials,
mainly Garcia, without any discussion or apparent con-
sideration of countervailing evidence. 353 NLRB at
1297. First, the Board referenced the unaddressed testi-
mony of Rocha suggesting that the Respondent contrib-
uted to his attendance and productivity problems by fail-
ing to assign him a sufficient number of repair orders on
a daily basis, that Rocha complained to Garcia about this
lack of work, that Garcia acknowledged those com-
plaints, and that Rocha’s early departures were approved.
Id. Second, the Board noted that the judge failed to ad-
dress Rocha’s testimony that Garcia never counseled him
or issued him a final warning on February 26. Id. at
1298. Third, the Board cited written statements by the
Respondent’s owner and its legal counsel, omitted from
the judge’s analysis, indicating that the decision to dis-
charge Rocha was made on March 5 or 6, after the Re-
spondent learned of his March 2 union activity. Id. Fi-
nally, the Board noted that the judge’s finding that the
Respondent decided to terminate Rocha on February 27
was at odds with Garcia’s statement to employee Lane
on March 2 that he “would blow [Rocha] out” (emphasis
added) if Garcia discovered that it was Rocha who had
organized the March 2 union meeting.9
Accordingly, without passing on the merits of the
8(a)(3) discharge allegation or the ultimate validity of the

9 In light of the judge’s finding that the Respondent’s decision to
discharge Rocha predated its discovery of his union activities, the
Board also noted that it did not understand the basis for the judge’s
finding that the General Counsel had established his initial Wright Line
case. Id. at 1298 fn. 16.
STEVENS CREEK CHRYSLER JEEP DODGE 635
judge’s prior findings, the Board remanded the issue to
the judge for further analysis. The Board instructed the
judge to make explicit and reasoned credibility determi-
nations resolving the discrepant testimony of Rocha and
the Respondent’s witnesses concerning whether Rocha
had ever been counseled, was given a final warning on
February 26, complained about a lack of work, and left
work early only when he had no work. The Board also
directed the judge to reconsider his finding that the Re-
spondent decided on February 27 to discharge Rocha, in
light of written statements and Garcia’s March 2 threat
suggesting a later date.
In his supplemental decision on remand, the judge
tersely affirmed his dismissal of the discharge allegation,
including his finding that the Respondent decided to dis-
charge Rocha before March 2. With respect to the date
of the discharge decision, the judge’s analysis, in its en-
tirety, consisted of the following:
While in defending the case in the investigation, Re-
spondent relied on conduct of Rocha after [the] deci-
sion to discharge him, I do not find that such statements
contradict the finding that the decision to discharge Ro-
cha occurred before the knowledge of his union activi-
ties. The testimony of Garcia and the documentary ev-
idence convinces me that the decision to discharge Ro-
cha was made prior to the Union meeting of March 2. I
adhere to my conclusion that the discharge of Rocha
did not violate the Act. While Respondent did unlaw-
fully threaten to blow Rocha out of the water, I find
that the statement was made under circumstances
where Rocha was going to be discharged in any event.
This analysis fails to respond to the detailed instruc-
tions in Stevens I. Further, having independently evalu-
ated the record evidence, we find, contrary to the judge,
that the Respondent decided to discharge Rocha after,
not before, it learned of his March 2 union activities.
This finding, as explained more fully below, is fatal to
the Respondent’s Wright Line defense and establishes
that Rocha’s discharge violated Section 8(a)(3).
As the Board discussed in Stevens I (353 NLRB at
1298), the date when the Respondent decided to dis-
charge Rocha is “critical” to determining, under Wright
Line, whether his discharge was unlawfully motivated by
the Respondent’s animus against his union activities. If,
as the judge found, the decision was made on February
27, the discharge could not have been unlawfully moti-
vated by Rocha’s union activities, which the Respondent
did not learn of until March 2.
As set forth above, the judge cited two evidentiary ba-
ses in his Supplemental Decision—the “testimony of
Garcia” and unspecified “documentary evidence”—that
“convince[d] him that the Respondent decided before
March 2 to discharge Rocha.” We find that Garcia’s
testimony is the only evidence that supports the judge’s
decision, and we reject that testimony.
Garcia testified that, based on a final warning given to
Rocha on February 26 and Rocha’s late arrival to work
on February 27, he decided that day, with the approval of
the Respondent’s owner, Mathew Zaheri, to discharge
Rocha. Garcia testified further that he intended to im-
plement the decision on March 2 (a Friday), but delayed
the termination until the following week because he had
to attend to a Chrysler factory representative who visited
the dealership unexpectedly on March 2 to discuss war-
ranty claims. Although the judge did not explicitly credit
this testimony, he must have implicitly credited it in or-
der to find that the Respondent decided before March 2
to discharge Rocha, because no other evidence exists to
support that finding.
It is well settled that the “Board is reluctant to overturn
the credibility findings of an Administrative Law Judge,”
Bralco Metals, Inc., 227 NLRB 973, 973 (1977), and
“only in rare cases” will it do so. E.S. Sutton Realty Co.,
336 NLRB 405, 405 fn. 2 (2001). This is particularly
true when credibility findings are based on a judge’s as-
sessment of the demeanor of a witness. V & W Castings,
231 NLRB 912, 913 (1977). However, the “Board has
consistently held that ‘where credibility resolutions are
not based primarily upon demeanor . . . the Board itself
may proceed to an independent evaluation of credibil-
ity.’” J. N. Ceazan Co., 246 NLRB 637, 638 fn. 6 (1979)
(quoting Electrical Workers Local 38, 221 NLRB 1073,
1074 (1975)). Further, even demeanor based credibility
findings are not dispositive when the testimony is incon-
sistent with “the weight of the evidence, established or
admitted facts, inherent probabilities, and reasonable
inferences drawn from the record as a whole.” E.S. Sut-
ton Realty, supra at 407 fn. 9 (quoting Humes Electric,
Inc., 263 NLRB 1238 (1982)).
Applying these principles, we find that the judge’s
credibility finding with respect to Garcia’s testimony
must be reversed. First, that credibility finding does not
appear to be primarily based on demeanor. The judge
gave no indication, in either of his decisions, that he re-
lied on Garcia’s demeanor in crediting his testimony.
Although the judge generally referenced demeanor,10 he
did not specifically refer to Garcia’s demeanor or that of
any other witness. See El Rancho Market, 235 NLRB
468, 470 (1978) (reversing judge’s credibility findings
where, although the judge generally referred to demean-
or, it did “not appear that . . . [the findings] were based

10 See Stevens I, 353 NLRB at 1300 fn. 2, and fn. 1 of the judge’s
supplemental decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 636
on his observations of the witnesses’ testimonial de-
meanor”). Further, by simply citing the “testimony of
Garcia” in conclusory terms, without any supporting ba-
sis for his finding that the discharge decision predated
March 2, the judge disregarded the Board’s instructions
on remand to reanalyze Rocha’s discharge by making
clear credibility determinations and explaining the basis
for those determinations. Stevens I, 353 NLRB at 1298–
1299. Because the judge failed to heed those instruc-
tions, we are unable to determine the basis on which
Garcia was credited. Because we cannot conclude that
the judge credited Garcia primarily based on demeanor,
we have “proceed[ed] with an independent evaluation” of
the record de novo. Canteen Corp., 202 NLRB 767, 769
(1973); see also El Rancho Market, supra at 470. Hav-
ing done so, we find that the weight of the record evi-
dence shows, contrary to Garcia’s assertion, that the Re-
spondent decided to discharge Rocha after March 2.
The fact of a post-March 2 discharge decision is estab-
lished most clearly by the written statements, mentioned
above, of the Respondent’s owner and its legal counsel
during the investigatory stage of the proceeding. Owner
Mathew Zaheri stated that Rocha arrived late to work on
February 27, left early on March 1 and 2, and “[o]n the
following Monday, 3/5 he did not come in or call and the
decision to terminate him was made” (GC Exh. 38) (em-
phasis added). Similarly, in a precomplaint position
statement submitted to the investigating Board agent, the
Respondent’s attorney summarized the February coun-
seling sessions with Rocha regarding his work perfor-
mance and attendance, and concluded that “[n]o correc-
tion of the problems was evident on March 6, 2007, in-
cluding an early departure. Accordingly, Rocha was
terminated on March 6, 2007” (GC Exh. 34).
In his supplemental decision, the judge concluded that
these two statements did not “contradict” his initial deci-
sion and that he remained “convince[d]” by the “docu-
mentary evidence” that the Respondent decided before
March 2 to discharge Rocha. We cannot discern the ba-
sis for this conclusion. Zaheri’s statement and the attor-
ney’s position statement constitute the only documentary
record evidence addressing the date on which the Re-
spondent decided to discharge Rocha, and neither state-
ment supports the judge’s finding that the decision pre-
dated March 2. To the contrary, both statements explicit-
ly contradict that conclusion, stating plainly that the de-
cision was made either on March 5, according to Zaheri,
or March 6, according to the Respondent’s attorney.
That the discharge decision was not made before
March 2 is further supported by Garcia’s March 2 state-
ment to Lane after learning of the employees’ lunchtime
union meeting. Garcia threatened Lane that he “would
blow [Rocha] out” if he found that Rocha had organized
the meeting. In response to the Board’s observation in
its remand decision that the conditional language of this
threat appeared “at odds” with a February 27 discharge
decision (353 NLRB at 1298), the judge stated in his
Supplemental Decision that the “blow out” threat was
made “under circumstances where Rocha was going to
be discharged in any event.” We think Garcia’s threat
demonstrates precisely the opposite: that the discharge
decision had not been made as of the March 2 union
meeting and would not have been made had Garcia de-
termined that someone besides Rocha had organized the
meeting.
Additional record evidence (and the absence of certain
evidence), not addressed by the judge, also undermines
his finding of a February 27 discharge decision. First,
Zaheri’s written statement cites, as reasons for Rocha’s
discharge, his early departure on March 2 and his no
show on March 5. However, these actions would have
been irrelevant had the Respondent decided before
March 2 to discharge him. Second, as to Garcia’s claim
that he was prevented from executing the February 27
discharge decision on March 2 due to an unexpected visit
by a Chrysler representative, the Respondent provided no
evidence documenting this visit, and Garcia was equivo-
cal regarding the visit’s duration, testifying first that it
lasted “most of the morning” but later describing the visit
as lasting the “morning and most of the afternoon, okay,
early afternoon” (Tr. 1060). Moreover, however long the
visit may have lasted, it did not prevent Garcia from in-
dividually interrogating several employees concerning
their lunch with the union representative. Thus, even if
we assume that the visit took place as claimed, the Re-
spondent has not established convincingly that the
Chrysler representative’s visit left Garcia no time to
summon Rocha and hand him his termination check.
Finally, it is noteworthy that no termination check was
prepared on March 2, Garcia’s purported planned date
for Rocha’s discharge. Instead, the check was drafted on
March 5, further suggesting that the discharge decision
was not made until after the Respondent had learned of
the Union meeting, unlawfully interrogated employees,
and threatened to retaliate against Rocha.
Accordingly, we reject Garcia’s testimony that the Re-
spondent decided on February 27 to discharge Rocha and
find, instead, that the decision was made on March 5 or
6, as clearly indicated by all the evidence discussed
above.
In light of this finding, we further find that the Re-
spondent has failed to establish its defense under Wright
Line that it discharged Rocha for reasons other than his
protected union activities on March 2. As discussed in
STEVENS CREEK CHRYSLER JEEP DODGE 637
Stevens I (353 NLRB at 1298), the Respondent’s defense
rested “critical[ly]” on Garcia’s testimony that the deci-
sion to discharge Rocha was made before he engaged in
those union activities. That testimony having been re-
jected as not credible, the Respondent’s Wright Line de-
fense fails as pretextual. Well-established precedent
holds that when a respondent’s asserted reasons for a
discharge are found to be pretextual, the respondent has
failed to show that it would have taken the same action,
absent the employee’s protected conduct. Golden State
Foods Corp., 340 NLRB 382, 385 (2003) (citing Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982)); see also Metropolitan Trans-
portation Services, 351 NLRB 657, 659 (2007).
This principle applies notwithstanding that there may
have been legitimate reasons on which the Respondent
could have relied in deciding to discharge an employee.
Metropolitan Transportation Services, supra. Here, even
assuming that Rocha had productivity and attendance
problems as set forth in the counseling and separation
reports entered into evidence, this evidence merely estab-
lishes that there were legitimate reasons for discharging
him. It does not establish that the Respondent relied on
those reasons, rather than Rocha’s union activity, when
terminating him. For example, in Humes Electric, supra,
the Board found that the respondent had had “legitimate
concerns” about employee Devers’ productivity for
weeks before discharging him on August 12, the day
after learning of his union activities. The respondent
claimed that it had decided on August 6 to discharge
Devers on August 7, and then “deferred the discharge
until August 12” for administrative reasons and because
Devers was out sick on August 7 and 8. The Board re-
jected this explanation as “incredible” and concluded that
the discharge was unlawfully based on Devers’ interven-
ing union activity. 263 NLRB at 1240.
As in Humes Electric, we have rejected as incredible
the Respondent’s claim that it decided to discharge Ro-
cha on February 27 but, due to intervening events, de-
ferred the discharge decision until March 6. Whatever
Rocha’s performance deficiencies, the Respondent took
no action to discharge him until learning of his union
activity on March 2. Moreover, the Respondent’s dis-
credited attempt to backdate the discharge decision fur-
ther suggests that its asserted reasons for the discharge
were pretexts, as it shows that the Respondent itself did
not believe that Rocha’s attendance and performance
issues, which were nothing new, adequately explained a
discharge coming hard on the heels of the March 2 dis-
covery of his union activities. See Metropolitan Trans-
portation Services, supra, 351 NLRB at 660. In sum, the
General Counsel’s Wright Line case is compelling, and
the fact that the Respondent tried to backdate the deci-
sion only bolsters the inference, which we draw, that the
proffered reasons for the discharge were pretextual and
the true reason was an unlawful one the Respondent
wished to conceal. Id. (citing Laro Maintenance Corp. v.
NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995)). We conclude
that it was the discovery of Rocha’s union activities and
the Respondent’s animus against those activities that
motivated Rocha’s discharge, in violation of Section
8(a)(3) and (1).
II. THE GISSEL BARGAINING ORDER
The judge found that the violations committed by the
Respondent did not warrant a bargaining order, noting,
“[s]ignificantly, [that] . . . no employee lost employment
as a result of the Respondent’s unfair labor practices.”
Having reversed the judge and found that Rocha was
unlawfully discharged, we find that our traditional reme-
dies cannot alone erase the coercive effects of his dis-
charge and the other violations committed by the Re-
spondent, and that a bargaining order is therefore neces-
sary.
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
the Supreme Court identified two categories of employer
misconduct that may warrant imposition of a bargaining
order: “category I” cases involving outrageous and per-
vasive unfair labor practices that make a fair election
impossible, and “category II” cases involving less ex-
traordinary and less pervasive unfair labor practices, but
which nonetheless have a tendency to undermine majori-
ty union support, once expressed through authorization
cards, and render the possibility of a fair election slight.
Id. at 614; California Gas Transport, 347 NLRB 1314,
1323 (2006).11
This case meets the standard for a category II bargain-
ing order. In reaching this conclusion, we have exam-
ined 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.”
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) (footnotes omitted)).
The Respondent’s unfair labor practices, by their na-
ture and extent, had a strong tendency to undermine the
Union’s majority support, especially in a unit as small as

11 There is no exception to the judge’s finding in his supplemental
decision that the Union obtained signed authorization cards from a
majority of unit employees. The record shows that at least 9 of 13 unit
employees, including Rocha, signed authorization cards.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638
the 13 employees here. Beginning immediately with the
opening of its new dealership, the Respondent was intent
to keep the Union out, telling two employees during ini-
tial hiring interviews that if they held current union
membership, they were required, as a condition of em-
ployment, to renounce it by obtaining withdrawal cards.
The Board has recognized that, where an employer vio-
lates the Act by taking similar preventative measures to
“keep [a] [u]nion out” of its workplace, a bargaining or-
der is appropriate. Bridgeway Oldsmobile, 281 NLRB
1246, 1246 (1986), enfd. 933 F.2d 1015 (9th Cir. 1991).
Once it realized that these preventive antiunion steps
had not been successful, and that its employees were
seeking union representation, the Respondent reacted
swiftly and severely. Immediately upon learning of the
organizing campaign on March 2, Garcia summoned
employee Lane to his office and threatened (1) that
“heads would rol[l]” and employees would “get in trou-
ble” and possibly lose their jobs if the dealership was
picketed or organized; (2) that if Rocha or another em-
ployee had organized the March 2 union meeting, he
[Garcia] would “blow them out”; and (3) that Zaheri
would close the dealership if employees selected the Un-
ion to represent them. Threats of job loss and plant clo-
sure are “hallmark” violations, long considered by the
Board to warrant a remedial bargaining order because
their coercive effect tends to “destroy election condi-
tions, and to persist for longer periods of time than other
unfair labor practices.” Evergreen America Corp., 348
NLRB 178, 180 (2006) (citing, inter alia, Gissel, supra,
395 U.S. at 611 fn. 31), enfd. 531 F.3d 321 (4th Cir.
2008).
The Respondent then discharged Rocha, whom it per-
ceived to be the leader of the organizing effort. This,
too, is a “hallmark” violation, perhaps the most flagrant,
“because no event can have more crippling consequences
to the exercise of Section 7 rights than the loss of work.”
Mid-East Consolidation Warehouse, 247 NLRB 552, 560
(1980). In NLRB v. Jamaica Towing, Inc., 632 F.2d 208,
212–213 (2d Cir. 1980), the seminal case defining “hall-
mark violations,” the Second Circuit Court of Appeals
noted, in enforcing the Board’s Order, that the discharge
of an active union adherent would likely “have a lasting
inhibitive effect on a substantial percentage of the work
force,” and would remain in employees’ memories for a
long time.
The Respondent committed a third hallmark violation
later in the organizing campaign by awarding eight em-
ployees wage increases on May 14. Grants of wage in-
creases have long been held to be a substantial indication
that a bargaining order is warranted because they have “a
particularly longlasting effect on employees and are dif-
ficult to remedy by traditional means not only because of
their significance to the employees, but also because the
Board’s traditional remedies do not require a respondent
to withdraw the benefits from the employees.” Ever-
green America, supra, 348 NLRB at 180 (quoting
Gerig’s Dump Trucking, 320 NLRB 1017, 1018 (1996));
see also Pembrook Management, 296 NLRB 1226, 1228
(1989) (discussing cases in which bargaining orders were
given based solely on the grant of wage increases).
In addition to these hallmark violations, we also rely
on the coercive impact of the Respondent’s other viola-
tions. These included interrogations, a wage-cut threat,
creating the impression of surveillance, and requiring (as
discussed above) that employees withdraw their union
membership as a condition of employment. On March 2,
when Garcia summoned Lane to his office and threat-
ened him with loss of jobs and closure of the facility if
employees succeeded in their organizing efforts, Garcia
also interrogated Lane as to whether he attended the un-
ion meeting that day and signed an authorization card.
Similarly, parts and service director Nickerson tele-
phoned Lane on March 5 and asked him who was behind
the organizing drive.
Three other employees were also summoned individu-
ally to Garcia’s office on March 2 or 5 and questioned as
to whether they attended the union meeting and signed
cards. Additionally, Garcia prefaced his interrogations
of two of these employees by creating the impression
that the Respondent was surveilling employees’ union
activities, telling them that he already knew about the
March 2 union meeting and that cards had been distribut-
ed. Garcia also threatened one of the employees during
the interrogation that his pay would be cut if employees
selected the Union.
The Respondent’s unlawful conduct persisted. Two
months later, Owner Zaheri interrogated employees and
created the impression that their union activities re-
mained under surveillance when, following a May 9 un-
ion meeting, Zaheri asked employees during a May 11
shop meeting who paid for pizza at their May 9 meeting.
These violations, particularly the interrogations and
impressions of surveillance, accentuated the coercive
effect of the hallmark violations by serving as a continu-
ing warning of the dangers attendant to union adherence.
By indicating to employees that their union activities
were being monitored, and by probing their individual
support for the Union, the Respondent conveyed the un-
mistakable message that support for the Union would not
be tolerated and that employees risked the same fate as
Rocha if they persisted in seeking union representation.
The gravity and coercive impact of all the violations
are heightened by the relatively small size of the unit (13
STEVENS CREEK CHRYSLER JEEP DODGE 639
employees) and by the involvement of the Respondent’s
highest management officials. See, e.g., Traction Whole-
sale Center Co., 328 NLRB 1058, 1076–1078 (1999),
enfd. 216 F.3d 92, 107–108 (D.C. Cir. 2000) (enforcing
bargaining order in light of magnitude of employer’s
unlawful conduct, small unit of 20 employees, and in-
volvement of employer’s owners). All of the unit em-
ployees were subjected to the interrogations and the im-
pression of surveillance, more than half of the unit em-
ployees were granted the hallmark wage increases, and
all of the employees were plainly aware of the hallmark
discharge of Rocha. These violations were magnified by
the fact that the perpetrators were Respondent’s three
highest management officials. Zaheri, the owner, author-
ized Rocha’s discharge and the wage increases, and per-
sonally interrogated employees and created the impres-
sion that he was surveilling their organizing efforts. Ser-
vice Manager Garcia, the third ranked official, interro-
gated employees, created the impression of surveillance,
threatened Lane with plant closure and job loss, and im-
plemented his threat to “blow out” Rocha.12 As the
Board has consistently emphasized, “‘[w]hen the highest
level of management conveys the employer’s antiunion
stance by its direct involvement in unfair labor practices,
it is especially coercive of Section 7 rights and the em-
ployees witnessing these events are unlikely to forget
them.’” California Gas Transport, supra at 1324 (quot-
ing Michael’s Printing, Inc., 337 NLRB 860, 861 (2002),
enfd. 85 Fed. Appx. 614 (9th Cir. 2004)).
In light of the violations found herein, we conclude
that the possibility of erasing the effects of the Respond-
ent’s unfair labor practices and of ensuring a fair election
by the use of traditional remedies is slight. Requiring the
Respondent to refrain from unlawful conduct in the fu-
ture, to reinstate Rocha with backpay, and to post a no-
tice, although remedially necessary, would not, in our
view, be sufficient to dispel the coercive atmosphere that
this Respondent has labored so assiduously to create.
In deciding that a bargaining order is necessary and
appropriate, we have duly considered the Section 7 rights
of all employees involved. As the Board has stated pre-
viously, “the Gissel opinion itself reflects a careful bal-
ancing of the employees’ Section 7 rights ‘to bargain
collectively’ and ‘to refrain from’ such activity.” Mer-
cedes Benz of Orland Park, 333 NLRB 1017, 1019
(2001). The rights of the Respondent’s employees favor-
ing unionization, which were expressed through authori-

12 Parts and Service Director Nickerson, the second in command,
although less active than Zaheri and Garcia, interrogated Rocha in his
job interview by asking him if he was still a union member, and inter-
rogated Lane on March 5 by asking who was behind the organizing
drive.
zation cards, are protected by the bargaining order. The
rights of those employees who may be opposed to the
Union are safeguarded by their access to the Board’s
decertification procedure under Section 9(c)(1) of the
Act, following a reasonable period of time to allow the
collective-bargaining relationship a fair chance to suc-
ceed.13
III. THE 8(a)(5) ALLEGATIONS
The Union achieved majority status on March 2, based
on signed authorization cards received from 9 of the 13
unit employees, and requested recognition from the Re-
spondent on May 16. Therefore, the Respondent’s bar-
gaining obligation commenced as of May 16. See Trac-
tion Wholesale Center, supra, 328 NLRB at 1077; com-
pare California Gas Transport, supra at 1326–1327
(when no demand for recognition is made, the bargaining
obligation commences as of the time a respondent initi-
ates its campaign of unfair labor practices, if, as of that
date, the union had obtained majority status).
On August 20, 2007, 3 months after the Respondent’s
bargaining obligation attached, the Union requested a list
of unit employees, their wage rates, dates of hire, classi-
fications, personnel policies, and fringe benefits. This
information was clearly relevant and necessary to the
Union’s role as the employees’ bargaining representa-
tive, and the Respondent violated Section 8(a)(5) and (1)
by failing to provide the information.
After the bargaining obligation attached on May 16,
the Respondent was foreclosed from making unilateral
changes to the unit employees’ terms and conditions of
employment. Parts Depot, Inc., 332 NLRB 670, 674
(2000). Accordingly, by unilaterally eliminating the lube
technician job of Steve Rother on October 15, 2007,
without bargaining with the Union about the decision and
its effects, the Respondent violated Section 8(a)(5) and
(1) as alleged in the complaint.
The Respondent argues that it did not violate Section
8(a)(5) by eliminating Rother’s lube technician position
because it was not a bargaining unit position and because
his work was absorbed by the unit service technicians.
We reject both arguments. Rother testified (Tr. 587–588,
593–594) that he worked alongside other service techni-
cians in the bargaining unit, and that the work that he
performed—oil changes, tire rotations, and brake inspec-

13 In its Answering Brief to the General Counsel’s and Union’s
Briefs in support of their exceptions to Judge Pollack’s supplemental
decision, the Respondent does not contend that changed circumstances
between the time of the unfair labor practices and the issuance of a
Gissel order make such a remedy unnecessary. Thus, the passage of
time and any intervening turnover of employees and management—
matters which have concerned some courts in addressing the Board’s
Gissel orders—are not at issue in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640
tions—was also performed by other service technicians.
Rother’s testimony was corroborated by Service Techni-
cian Rick Avelar (Tr. 403–408) and was not contradicted
by other witnesses. Further, by asserting that Rother’s
work was absorbed by other unit technicians after Roth-
er’s position was eliminated, the Respondent essentially
concedes that the work he performed was bargaining unit
work. And because the unit work that Rother performed
was necessarily lost by the elimination of his position,
we find no merit in the Respondent’s argument that the
absorption of his work by other unit employees precludes
the finding of an 8(a)(5) violation. See Kansas AFL–
CIO, 341 NLRB 1015, 1025–1026 (2004).14
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)((3) and
(1) by discharging Patrick Rocha because he engaged in
protected union activity, we shall order the Respondent
to offer him full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed. Having found that the
Respondent violated Section 8(a)(5) and (1) by unilater-
ally eliminating the lube technician position held by Ste-
ve Rother and consequently terminating his employment,
we shall order the Respondent to rescind its unlawful
unilateral elimination of that position and to offer Rother
full reinstatement to his former job of lube technician,
without prejudice to his seniority or any other rights or
privileges previously enjoyed. We shall further order the
Respondent to make Rocha and Rother whole for any
loss of earnings and other benefits suffered as a result of
the Respondent’s unlawful conduct. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). The Respondent shall
also be required to remove from its files any and all ref-
erences to Rocha’s unlawful discharge and the unlawful
elimination of Rother’s lube technician position, and to
notify them in writing that this has been done and that
the unlawful actions will not be used against them in any
way.

14 The cases cited by the Respondent—Wire Products Mfg. Co., 328
NLRB 855 (1999), Geiger Ready-Mix, 323 NLRB 507 (1997), and
Kohler Co., 292 NLRB 716 (1989)—do not support a different conclu-
sion.
The Respondent will be ordered, on request by the Un-
ion, to bargain in good faith with the Union as the exclu-
sive collective-bargaining representative of the unit em-
ployees concerning terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement. Raven Government Ser-
vices, 331 NLRB 651 (2000); Nicholas County Health
Care Center, 331 NLRB 970 (2000). The Respondent
will also be ordered to provide the Union, in a timely
manner, the information requested by the Union on Au-
gust 20, 2007.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge in his
supplemental decision as modified and set forth in full
below, and orders that the Respondent, Stevens Creek
Chrysler Jeep Dodge, Inc., San Jose, California, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities
or the union activities of fellow employees.
(b) Soliciting and requiring employees holding union
membership to withdraw their union membership.
(c) Threatening employees with plant closure, wage
decreases, and job loss because of their support of the
Union.
(d) Threatening applicants for employment that it
would not hire a person affiliated with the Union.
(e) Granting wage increases to employees in order to
dissuade them from supporting the Union.
(f) Creating the impression of surveillance of employ-
ees’ union activities.
(g) Discharging employees for engaging in protected
union activities.
(h) Refusing to recognize and bargain in good faith
with Machinists District Lodge 190, Machinists Automo-
tive Local 1101, International Association of Machinists
and Aerospace Workers of America, AFL–CIO as the
exclusive collective-bargaining representative of its em-
ployees in the following appropriate unit:
All full-time and regular part-time mechan-
ics/technicians employed by the Respondent at its San
Jose, California facility; excluding service writers, all
managerial and administrative employees, salesper-
sons, office clerical employees, all other employees,
guards, and supervisors as defined in the Act.
(i) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant to and necessary for the Union’s
performance of its statutory functions as the unit em-
ployees’ exclusive collective-bargaining representative.
STEVENS CREEK CHRYSLER JEEP DODGE 641
(j) Eliminating bargaining unit positions without giv-
ing prior notice to the Union and affording it an oppor-
tunity to bargain regarding the decision and its effects.
(k) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unlawful unilateral elimination of the
lube technician position.
(b) Within 14 days from the date of this Order, offer
Patrick Rocha full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(c) Within 14 days from the date of this Order, offer
Steve Rother full reinstatement to his former job of lube
technician, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(d) Make Patrick Rocha and Steve Rother whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against Rocha and the unilat-
eral elimination of Rother’s position, in the manner set
forth in the amended remedy section of this supplemental
decision and order.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Patrick Rocha and the unlawful elimination of Rother’s
lube technician position, and within 3 days thereafter,
notify them in writing that this has been done and that
the unlawful actions will not be used against them in any
way.
(f) Recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative,
retroactive to May 16, 2007, of employees in the above-
described appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement.
(g) Provide the Union in a timely manner the infor-
mation that it requested on August 20, 2007.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(i) Within 14 days after service by the Region, post at
its San Jose, California facilities copies of the attached
Notice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region 20,
after being signed by Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since December 7, 2006.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps Respondent has taken a comply.
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 you about your
union activities or the union activities of your fellow
employees.
WE WILL NOT require you to execute union withdrawal
cards in order to obtain employment.

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642
WE WILL NOT threaten you with plant closure, wage
decreases, or job loss in order to discourage your 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 create the impression that we are spying
on your union activities.
WE WILL NOT discharge you for engaging in protected
union activities.
WE WILL NOT refuse to recognize and bargain with
Machinists District Lodge 190, Machinists Automotive
Local 1101, International Association of Machinists and
Aerospace Workers of America, AFL–CIO as the exclu-
sive collective-bargaining representative for the follow-
ing group of our employees:

All full-time and regular part-time mechan-
ics/technicians employed by us at our San Jose, Cali-
fornia facility; excluding service writers, all managerial
and administrative employees, salespersons, office cler-
ical employees, all other employees, guards, and super-
visors as defined in the Act.

WE WILL NOT refuse to furnish the Union with infor-
mation it requested that is relevant and necessary for it to
perform its function as your collective-bargaining repre-
sentative.
WE WILL NOT eliminate bargaining unit positions
without giving prior notice to the Union and affording it
an opportunity to bargain regarding the decision and its
effects.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above, which are guaranteed you by Section 7
of the Act.
WE WILL rescind our unlawful unilateral elimination of
Steve Rother’s lube technician position.
WE WILL, within 14 days from the date of the Board’s
Order, offer Patrick Rocha full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer Steve Rother full reinstatement to his former
job of lube technician, without prejudice to his seniority
or any other rights or privileges previously enjoyed.
WE WILL make Patrick Rocha and Steve Rother whole
for any loss of earnings and other benefits resulting from
the unlawful actions against them, less any interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Patrick Rocha and the unlawful elimina-
tion of Steve Rother’s lube technician position, and WE
WILL, within 3 days thereafter, notify them in writing that
this has been done and that the unlawful actions will not
be used against them in any way.
WE WILL recognize and bargain collectively and in
good faith with the Union as the collective-bargaining
representative of employees in the unit described above
and, if an understanding is reached, embody that under-
standing in a signed contract.
WE WILL provide the Union in a timely manner the in-
formation that it requested on August 20, 2007.

STEVENS CREEK CHRYSLER JEEP DODGE, INC.

David B. Reeves, Esq. and Cecily Vix, Esq., for the General
Counsel.
Daniel T. Berkley, Esq. (Gordon & Rees), of San Francisco,
California, for the Respondent.
Caren P. Sencer, Esq. (Weinberg, Roger & Rosenfeld), of Ala-
meda, California, for the Union.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I issued my
original decision in this case on July 1, 2008. On April 20,
2009, the Board issued its Decision and Order Remanding. The
Board found violations of coercive interrogation, creating the
impression of surveillance, unlawfully requiring employees to
execute union withdrawal cards, threatening plant closure,
threatening not to hire employees because of their union affilia-
tion, and granting wage increases to discourage union activities.
In addition, the Board remanded the case to me to decide issues
regarding the interrogation and discharge of employee Patrick
Rocha; the March 2 pay cut threat by Service Manager James
Garcia; the May 11 plant closure threat by owner Matthew
Zaheri, and the unilateral change and refusal to provide infor-
mation allegations. Further, the Board ordered that I address
the remedial relief sought by the Union.
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,1 and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing

1 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 Mfg. Co., 369 U.S. 404, 408 (1962). As to those
witnesses testifying in contradiction to the findings herein, their testi-
mony has been discredited, either as having been in conflict with cred-
ited documentary or testimonial evidence or because it was in and of
itself incredible and unworthy of belief.
STEVENS CREEK CHRYSLER JEEP DODGE 643
I. FINDINGS—INTERROGATION AND DISCHARGE
Employee Patrick Rocha testified that, in December 2006, he
was asked by Chris Nickerson whether he was still a member of
the Local. Rocha replied that he was on withdrawal. Nicker-
son replied that the dealership would be a nonunion shop.
Nickerson denied asking any employee whether he was a mem-
ber of the Union. Based on demeanor and the fact that other
employees were required to obtain union withdrawals, I credit
Rocha’s testimony. Accordingly, I find that Respondent violat-
ed Section 8(a)(1) by interrogating Rocha as to whether he was
a union member.
Employee Alque Baybayan testified that on March 5, James
Garcia asked whether Baybayan had signed a paper at lunch.
Garcia said that if the Union came in Baybayan’s wage rate
would go down. Baybayan’s rate of $26 per hour would go
down. Garcia denied making such a threat. I credit Bay-
bayan’s testimony. Accordingly, I find that Respondent unlaw-
fully threatened Baybayan.
Employee Michael Lane testified that Mathew Zaheri told
employees that the Union’s unfair labor practice charges would
cost him $100,000 to defend and could result in the loss of the
business. On cross-examination, Lane stated that he did not
“believe, I don’t recall that he actually made the reference that
$100,000 would cost him the business. . . .” Thus, I credit
Zaheri’s testimony that he did not make such a threat.
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. Gar-
cia testified that he intended to discharge Rocha on March 2—
the end of the pay period—but was delayed due to the unex-
pected arrival of a Chrysler factory representative. Rocha
clocked out early on March 2. Garcia gave instructions to pre-
pare 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 termi-
nated the employee on March 6. Rocha was discharged when
he reported for work on March 6. Rocha’s separation notice
states “Patrick’s inability to get the work done correctly and on
time” and “left early without permission did not advise any-
body 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 peri-
od, Rocha left work early on 29 days.
Rocha testified that his early departures and extended lunch-
es were due to the failure to assign him a sufficient number of
repair work orders on a regular basis. Rocha testified that he
complained to Garcia about this. Garcia admitted that Rocha
made such complaints. Rocha testified that Garcia never coun-
seled him or gave him a final warning. This testimony is not
credited. Garcia’s testimony is corroborated by documentary
evidence.
Finally, while in defending the case in the investigation, Re-
spondent relied on conduct of Rocha after the decision to dis-
charge him, I do not find that such statements contradict the
finding that the decision to discharge Rocha occurred before the
knowledge of his union activities. The testimony of Garcia and
the documentary evidence convinces me that the decision to
discharge Rocha was made prior to the union meeting of March
2. I adhere to my conclusion that the discharge of Rocha did
not violate the Act. While Respondent did unlawfully threaten
to blow Rocha out of the water, I find the statement was made
under circumstances where Rocha was going to be discharged
in any event.
The General Counsel contends that a mechanic cannot cost
Respondent money by clocking out early when there is no as-
signed work. However, Rocha did clock out when work was
soon available. While Rocha did clock out when parts were not
available, parts became available shortly after Rocha clocked
out. Finally, I give no weight to the fact that the separation
notice did not reference Rocha’s prior counseling.
The General Counsel asserts that Respondent should be or-
dered to bargain with Respondent as a remedy for its unfair
labor practices. Based on this bargaining order, the General
Counsel contends that Respondent violated Section 8(a)(5) by
not bargaining with the Union when it eliminated the job of
employee Steve Rother, a lube technician. Further, the General
Counsel contends 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 bar-
gaining.
II. ANALYSIS AND CONCLUSIONS
A. The Request for a Bargaining Order
Under Gissel, the Board will issue a remedial bargaining or-
der, 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 rem-
edies cannot erase the coercive effects, thus rendering a fair
election impossible. NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). 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 Stevennsville, 350 NLRB 1350
(2007), citing Abramson, LLC, 345 NLRB 171, 176 (2005)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644
(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)).
After the Union obtained signed authorization cards from a
majority of the unit employees, Respondent committed several
violations of Section 8(a)(1), including requiring employees to
withdraw their union membership, threatening plant closure,
wage decrease and job loss, interrogating employees, threaten-
ing not to hire an employee because of his union affiliation, and
unlawfully granting wage increases. Significantly, however, no
employee lost employment as a result of the Respondent's un-
fair labor practices, Intermet Stevensville, 350 NLRB 1270
(2007). 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 a 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 consid-
ered both the extensiveness of the employer's unfair labor prac-
tices and their likelihood of recurrence in determining whether
a bargaining order is appropriate. Id. 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 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 bar-
gaining order where an employer threatened 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 rem-
edies 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.
B. The Union’s Remedial Requests
The Union requests for an internet/intranet posting. The Un-
ion argues that modern society now communicates in electronic
format. Further, the Union argues that an internet/intranet post-
ing allows an employee time to read the notice without standing
in a location indicating to the employer that he is in fact reading
the notice. I find merit in this argument.
The Union also seeks an order requiring the employer to read
the notice to employees. In view of the order requiring inter-
net/intranet posting, I do not believe a reading of the notice is
necessary.
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, wage decreases, and job loss
Respondent violated 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. By creating the impression of surveillance of employees’
union activities, Respondent violated Section 8(a)(1) of the Act.
9. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
10. Respondent did not otherwise violate the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]