Superior Pontiac

National Labor Relations Board - Board Decisions

Aug 17, 1984

271 N.L.R.B. 1066 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superior Pontiac, Inc. and International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America and its Amalga-
mated Local 55. Case 3-CA-11278
17 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 9 April 1984 Administrative Law Judge
Robert T. Snyder issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Superior
Pontiac, Inc., Hamburg, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant 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.
In its exceptions the Respondent also contends that the Board should
direct a hearing de novo on the ground that the judge was personally
biased and prejudiced against its position in this case, and thus could not
render an objective decision based on the record herein. Based on our
careful examination of the entire record and the judge's decision in this
case, we find no basis for concluding that the judge demonstrated a bias
towards the Respondent in his analysis or discussion of the evidence, or
in his credibility resolutions. Accordingly, we deny the Respondent's re-
quest as lacking in merit.
Finally, we correct two inadvertent factual errors in the judge's deci-
sion which do not affect the judge's ultimate conclusions. First, the judge
quoted the pretrial affidavit of the Respondent's president, Richard Izzo,
as stating that in October 1982 he stopped having used cars repaired in
the collision shop, when, in fact, he stated in the affidavit that he stopped
having "some" used cars repaired in October 1982 by collision shop em-
ployees Secondly, we note that in setting out discriminatee Raymond
Jarmusz' testimony the judge indicates that on 19 March 1982 Jarmusz
placed certain repair orders he prepared on Supervisor Richard Watro-
ba's desk, when, in fact, Jarmusz stated that he did so on 19 October
1982.
2 In adopting the judge's findings of violations in this case, we do not
rely on his speculative conclusion that the Respondent challenged Jar-
musz' ballot in the representation election because it had "probable
reason to believe [the election] would be closely contested"
271 NLRB No. 172
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This
case was heard by me on April 25 and 26, 1983. The
complaint, which issued on December 7, 1982, alleges
that Superior Pontiac, Inc. (Respondent or Superior), by
various named agents and supervisors, threatened its em-
ployees with a business closing if they voted in the
Charging Party Union and that it would take retaliatory
action if the instant case was not dropped,land solicited
grievances and in response promised higher wages and
other benefits, in violation of Section 8(a)(1) of the Act,
and caused a decrease in the hours worked by its colli-
sion shop employees and laid off employee Raymond
Jarmusz in violation of Section 8(a)(3) and (1) of the
Act. Respondent's answer 2 denied the substantive allega-
tions of the complaint.
On the entire record, including my observation of the
demeanor of the witnesses and after careful consideration
of the briefs filed by Respondent and the General Coun-
sel, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a New York corporation, with its princi-
pal office and place of business located in Hamburg,
New York (the dealership), is engaged in the sale and
distribution of new and used cars and trucks and related
products at its dealership. Annually, Respondent, in the
course and conduct of its retail business operations, sells
and distributes products, the gross value of which ex-
ceeds $500,000. During the same period of time, Re-
spondent receives goods valued in excess of $50,000
transported to its dealership directly from States of the
United States other than the State of New York. Re-
spondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
As part of its dealership, Respondent operates a colli-
sion shop and service shop, to repair and service the new
and used cars it sells as well as cars brought in for serv-
ice by outside customers. In the parlance of the trade,
collision and service work performed on new cars sold
by it is called warranty work (during the period covered
by the warranty agreement on sale); such work per-
formed on used cars received on customer trade in or
otherwise is called internal work; and similar work per-
formed for outside customers not under warranty is
called customer work.
This allegation was added to the complaint by way of amendment
granted on motion made at the opening of the hearing.
z This pleading was not prepared or filed by counsel but by named
agents and supervisors of Respondent and is certified by them and bears
the signature of Respondent President Richard J. Izzo.
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SUPERIOR PONTIAC
In the fall of 1982,3 Respondent employed two em-
ployees to perform collision work, including painting,
collision repair, and frame welding. They were, in order
of seniority, Ronald Chelecki, employed since May, and
Raymond Jarmusz, first employed on July 7. Other serv-
ice employees included mechanics, helpers, washers, pol-
ishers, undercoaters, lubrication men, janitors, and parts
department employees, totaling nine in all.
On or about October 11, Jarmusz called Larry Sardes,
a union representative, and asked him what he would
have to do about starting a union at the shop. Sardes
agreed to meet with Jarmusz and said the employees
would have to sign cards and return them to him to
return to the Labor Board. Shortly after this conversa-
tion they met at lunch hour outside the dealership; Jar-
musz received a batch of designation cards and he dis-
tributed them to employees after work the same day
when they gathered at Santora's Pizzeria across the
street from the dealership. The following day, the em-
ployees returned the signed cards to Jarmusz and he in
turn met someone by prearrangement at lunch and
handed over the cards with the understanding they
would be given to Sardes.
By letter dated and mailed by regular mail on October
12, typed on union stationery, and addressed to Richard
Izzo of Superior, Sardes advised that the Union repre-
sented a majority of his automotive garage service em-
ployees for purposes of bargaining, requested recognition
as sole collective-bargaining agent, and expressed a
desire for an immediate conference to discuss the matter.
In the letter Sardes also informed Respondent that Jar-
musz and Richard Ferguson, a line mechanic, had been
selected to act jointly with him or any other business
representative of the Union as representatives of the em-
ployees in matters pertaining to hours, wages, rates of
pay, and other conditions of employment. The letter
went on to caution against making unilateral changes in
such terms or conditions of employment, and to advise
that any attempt to intimidate, coerce, or interfere with
the organizational rights of employees would be in viola-
tion of the law and necessitate union prosecution. An im-
mediate response was requested. The record does not
contain any evidence of a response.
On the same date, October 12, the Union filed a peti-
tion for certification of representative in Case 3-RC-
8329 seeking an election in a unit of all service employ-
ees.
According to Jarmusz, in October, right before Re-
spondent received the Union's demand letter, while he
was in the body shop area with Ron Chelecki just before
work, they informed Richard Watroba, the new collision
shop manager, that they had started the Union and the
Union was filing with the Labor Board. Watroba said
the place was going to close when the union came in,
"There's no way they're going to let the union come into
the building." Jarmusz responded that he had been told
by Larry Sardes he could not close the doors because of
the Union no matter what happened.
3 All dates hereinafter mentioned shall refer to the year 1982, unless
otherwise noted.
About a week later, certainly after Izzo's receipt of the
Union's letter and probably after Respondent's receipt of
a copy of the Union's petition in Case 3-RC-8329 on
October 20, Jarmusz approached Carl Seitz, parts man-
ager, early in the morning in the service area. Jarmusz
asked Seitz what he thought about the Union coming in.
Seitz replied that he was told by Richard Izzo that they
were going to close the place. Jarmusz replied that there
was no way he was going to close.
During the week in which Jarmusz distributed the
union designation cards he also spoke to Louis Staddon,
service manager, at the service desk in the dealership.
Jarmusz asked Staddon how he liked the union shop.
Staddon said he worked for one before and he would not
work for a union shop again. Staddon added that the
shop would be closed by Richard if the Union was
brought in.
According to Richard Ferguson, around the middle of
October while he was in the parts room to pick up parts
for a job he was working on, he told Seitz that "they
were bringing a union in." Seitz told Ferguson specifical-
ly that if they would bring a union in, the Company
would close. He added that it was not too bad an idea
that they did get a union in there. Around the same time,
Ferguson testified he was present in the body shop along
with Jarmusz and Chelecki when Watroba responded to
the employees' mentioning bringing a union in with the
comment that, if they did bring a union in, the Company
would close down. During his cross-examination, Fergu-
son was firm in his recollection that Watroba did not
state that Richard Izzo told him the place was going to
close and, further, that Watroba did not use the phrase
the place "might" close if they went union but, instead,
said the "place would close if we went union" and that
this was not stated in response to any inquiry. As to the
alleged threat by Seitz. Ferguson also confirmed on
cross-examination that Seitz had not stated that it was his
opinion that the dealership would close in response to a
successful union campaign.
Roughly a week after returning the signed designation
cards, Jarmusz had another meeting with Sardes in a
parking lot near the dealership at which he received
some union pamphlets, buttons, and bumper stickers.
Early in the morning of Monday, October 25, at 7:50,
Jarmusz passed out this union material to other employ-
ees in the service area and was observed doing so by
Watroba, Seitz, and Staddon who were standing around
in the immediate area. In the early afternoon the same
day, October 25, right after lunch, Jarmusz was laid off
allegedly because work was slow. The facts relating to
this incident, the General Counsel's allegation and Re-
spondent's defense will be dealt with shortly.
Following Jarmusz' layoff, according to Chelecki, the
other body shop employee who continued working, on
Thursday, October 28, Watroba called him into his office
and then asked him what the guys were looking for as
far as a contract, what they were trying to get out of it.
Chelecki did not give him everything, but he told him
roughly what the men had talked about. These demands
included an increase in the weekly guarantee for body
men and mechanics (at the rate of $8 an hour) from $200
1067
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to $260; $8 flat rate for body men and mechanics (up 50
cents for mechanics); bring the line duty mechanic, Tom
Kozak, up to $6.50 or $7 per hour flat rate from his
present $4 rate; pay the car wash man percentage of
each car done instead of his present minimum wage; pro-
vide fully paid Blue Cross/Blue Shield coverage instead
of having the employees pay half as at present and fully
paid holidays as against $5 per hour now, and vacations
based on weekly earnings instead of $200 a week; and
provide some kind of protection by way of a burglar
alarm for the $10,000 investment in tools the mechanics
and body men stored at the dealership.
Watroba responded that he was having a meeting that
night with Richard (Izzo) and the managers over the
union activity and whatever else was going on.
The following Friday or Monday, October 30 or No-
vember 1, Watroba came back to Chelecki and told him
that if the men voted the Union out 4 they would let
them have a house union and that Richard offered to
bring everybody's (body men and mechanic) salary to $8
an hour. He also offered the light duty mechanic and de-
tailman an additional $2 an hour, put the carwash men
on incentive pay, pay the employees' Blue Cross/Blue
Shield in full, give full holiday pay, and athough Izzo
would not get tool insurance he would put in burglar
alarms to protect the men's tools. Watroba added that
Richard wanted him and Lou to call a meeting with the
men to "talk about this union thing." Chelecki told Wa-
troba that it was a bribe to him and against the law and
that it was not right for anybody else to find out about
it, and not to tell any of the other men because he, Che-
lecki, was going to press charges either way. Chelecki
also said, "What did you go and tell him [Izzo] for?"
Chelecki thought their discussion had just been between
the two of them. He was not negotiating. The meeting
ended with Watroba telling Chelecki to keep this under
his hat and not to tell anybody about it.
Subsequently, Jarmusz was recalled to work on Febru-
ary 4, 1983. The complaint and notice of hearing in this
proceeding had previously issued on December 7, and
had set April 25, 1983, for the opening of hearing. Jar-
musz testified on April 25 that, within 2 weeks before
the opening of the hearing, Richard Izzo called him into
his office. Izzo told Jarmusz that it was going to cost
him a lot of money to go through this and get a lawyer
and stuff and he asked Jarmusz what he was going to do
about it. Jarmusz replied that he really could not do any-
thing about it now. It was in the Union's hands and the
Labor Board's hands. He could not do anything about it.
Izzo told him, "Yes, you could drop it." Jarmusz said no,
and Izzo got a little mad, raised his voice and said, "I'll
see, I'll see about that."
When Jarmusz was laid off, Watroba told him he
would have to lay him off because Walter Schoenfeldt
(Respondent's business manager/office manager) came
into his office, said, "Work is slow, you're going to have
to lay Jarmusz off." Jarmusz was also told that he would
be called back if work picked up in the future. Prior to
this date, October 25, Jarmusz had no advance notice of
any impending layoff. According to Jarmusz, he had
4 The representation election was held on November 12.
been paid for 46.3 hours of work 5 in the week commenc-
ing October 11, 2 weeks preceding his layoff. The fol-
lowing week, commencing October 18, Jarmusz was
only paid for 6 hours' work, well below and apart from
his guarantee. Thus, Jarmusz was able to testify on cross-
examination that it was conceivable he was laid off be-
cause work was slow based on his own testimony.
Jarmusz also testified that before his layoff 75 percent
of the collision work was internal on traded in used cars
being prepared for resale and that Respondent had virtu-
ally no private outside customer work in October. Re-
spondent's summary records received in evidence which
reflected new and used car sales and collision shop dollar
sales by the month, broken down by customer, internal,
and warranty work for 1981 and 1982, show a seasonal
pattern of very light internal repair work in the months
from November or December to March. However, cus-
tomer collision work in October and November 1982
was substantially higher than in the same months in 1981
($7,775 vs. $4,325). This probably reflected at least in
part the efforts of the new collision shop manager, Wa-
troba, to solicit such business through newspaper adver-
tisements which he placed starting shortly after his hire
at the end of September. Furthermore, internal collision
work in September and October 1982 was considerably
greater than in the same months in 1981-$5700 for Sep-
tember and $3662 for October 1982, as against $2138 and
$1850 for the same months in 1981. Total used car sales
in 1982 (159) were also more than double the sales for
1981 (76) while new car sales increased by 50 percent
over the 2 years.
The import of these figures then does not readily sup-
port Respondent's claim that work was slow or was an-
ticipated to continue to be slow through the fall months
in 1982 at the time that Jarmusz, as the least senior of the
two collision shop employees, was laid off.
The General Counsel asserts two specific claims in
support of its allegation that Respondent caused a de-
crease in the hours worked by its collision shop employ-
ees by reducing the amount of work performed in its col-
lision shop, thus leading directly to Jarmusz' layoff.
First, Jarmusz testified that he had a special relation-
ship with a customer, International Cable Television
Company, which, by prearrangement, he personally esti-
mated, was approved for, and performed all their colli-
sion repairs. This relationship antedated his employment
by Respondent when he had previously done collision
repairs while employed by his father in 1981. As cor-
roborated by an International Cable vice president, Jar-
musz had performed all repair work on its fleet of 50
trucks for approximately 2 years. Jarmusz' estimates for
such work to his knowledge had never been rejected by
the Company. Furthermore, where Jarmusz had been
unable to do the work since his employment by Re-
5 As explained by Jarmusz and others, these hours did not reflect
actual work hours but rather the book or manual hours specified for a
particular operation or series of operations undertaken in repairing cars in
the collision shop. Jarmusz' income was based on $8 per book hour. Each
operation or job not only had a listed number of book hours by which
the total job hours for a repair were computed but also a rate per hour or
per job which the job, whether internal labor, warranty (manufacturer),
or customer, was charged.
1068
SUPERIOR PONTIAC
spondent, it had not been given to, or done by, Superior.
This included the period covered by Jarmusz' layoff
from Superior.
Before his layoff, Jarmusz had estimated and then
worked on a number of repair jobs for International
Cable. Then, on October 18, Jarmusz prepared two sepa-
rate written estimates for International Cable on Superior
estimate report forms which he had removed from the
dealership with the prior approval of Watroba. One esti-
mate was to paint and refinish a truck, including painting
the logo on the hood, for a total of $942.18. Jarmusz re-
ceived an immediate verbal approval from International
Cable for this job after submitting the estimate. Since
International Cable did not want to tie up two trucks si-
multaneously, the second estimate (to straighten and
patch doors, replace a rear quarter panel, and refinish
and repaint the truck for a total of $1254) was not imme-
diately approved but in all likelihood would have been
approved upon completion of work on the first truck
and its return to active service; its repair would then im-
mediately follow. Both estimates bear the date of Octo-
ber 18 after the printed word "Date" appears, along with
the spaces for entry of other information about the
repair, which were also filled in, on the top portion of
the form. The forms were completed by Jarmusz in trip-
licate and, he swore, the original of each was left by him
on Watroba's desk the next day, Friday, March 19, inside
the metal looseleaf booklet which contains the estimate
forms.
The smaller, approved estimate involved 46 hours of
work at $19 per hour according to the book. The
second, larger estimate to be approved involved 55 hours
also at $19 per hour. Since Jarmusz' guaranteed share
was $8 per hour, he would have received $808 and Supe-
rior would have received $1111 as a result of perform-
ance of these repairs. Yet, Jarmusz was laid off within
the week and, as a consequence, with Jarmusz not per-
sonally available to perform the repairs, International
Cable had both repair jobs done elsewhere and Superior
did not receive either job or the direct financial benefit
to be derived from performing them.
Respondent explains this result by claiming, through
the testimony of Watroba, that the collision shop manag-
er did not learn of these estimates until after Jarmusz'
layoff, on November 11, when Jarmusz visited the deal-
ership and left off both estimates. In support of this
claim, Watroba's entry of the phrase "Received
11/11/82" appears at the top of the original of the esti-
mate for $1284 to which the other original estimate had
been stapled. Furthermore, Watroba also asserts that,
even after he became aware of these estimates, he did
not recall Jarmusz for business reasons. Since he had
little available work for one man, much less two, it
would have made little sense to keep two men employed
with the guaranteed minimum payment required for
each.
A second claim asserted by the General Counsel as to
the necessity for Jarmusz' alleged economic layoff con-
cerns the availability of internal body repair work which
was purposely re-routed to other shops. Ronald Chelecki
testified that Richard Izzo had regularly complained to
him, Jarmusz, and, after Watroba's hiring, to Watroba,
that their estimates for internal repairs, of used cars
traded in by customers as well as other cars which were
being delivered on Superior Car Carriers from Canada
(whose odometers registered in kilometers and had to be
changed to miles per hour while in the body shop), were
too high and that the retail price for resale including the
repairs was costing too much money. In spite of these
complaints, according to Chelecki, the collision shop
men always did the repair work on these cars. However,
a week after Izzo had gotten the Union's demand letter,
naming Jarmusz and another employee as union repre-
sentatives, in Jarmusz' last week of employment before
his layoff, the collision shop stopped doing repairs on the
cars which had been delivered from Canada on Superior
truck carriers. Although estimates continued to be made
and written up, the cars did not remain in the shop, but
disappeared for a week and then reappeared on the lot in
a finished, repaired condition.
With respect to this latter claim, its force is somewhat
diminished by virtue of Chelecki's failure to have assert-
ed it in his affidavit to which he swore before a Board
agent on Monday, November 1. In the paragraph relat-
ing to work on used cars since the start of the union
campaign, Chelecki claims that Izzo has been selling the
used cars as is rather than having them repaired. When
he questioned Watroba about this, the response was
either there was not any work to be done on them or
Richard (Izzo) did not want any work to be done on
them. Respondent's business manager since mid-Novem-
ber 1981, Walter Schoenfeldt, also denied that to his
knowledge Superior ever sublet any cars for collision
work. Schoenfeldt also professed lack of knowledge as
to whether any cars were purchased by Superior for
resale from Canada.
At the time Schoendfeldt participated in the decision
to lay off Jarmusz he was not informed by Watroba that
there was any immediate job based on any estimate Jar-
musz may have submitted. If he had been so aware, they
would not have laid him off if they had work coming in.
Schoenfeldt was also aware that Jarmusz was a union
representative who had been selected by the Union in
early October. Schoenfeldt's participation involved ques-
tioning Watroba on the Friday preceding the layoff as to
whether he had enough work for two people for the
next week. This discussion had been preceded by a meet-
ing that Friday, October 22, among Schoenfeldt, Wa-
troba, Richard Izzo and his son, and General Manager
Rick Izzo, as to whether there was enough incoming
work to keep the two collision shop employees busy the
following week. Watroba responded that he would not
know until Monday. If he got these extra two jobs, they
would have enough to keep two people busy. (These
two jobs were never described.) On Monday morning,
Schoenfeldt learned Watroba had not gotten the extra
work and he then informed Watroba, "We're going to
have to let one go." It was then that Watroba told Jar-
musz he would have to be let go by Wednesday.
As to the layoff itself, Watroba testified that he went
to Jarmusz on Monday, October 25, and told him that if
they could not get more business by Wednesday, Octo-
ber 27, he would have to lay him off because he was the
1069
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
younger man; that it was usual to give 3 days' notice of
layoff. Watroba asserted that Jarmusz responded, "Well,
if there's nothing here now, I'll go home at 11:30." Jar-
musz then left at 11:30 and filed for employment insur-
ance the next day. It was also Watroba's recollection
that Jarmusz returned to the dealership on November I 1,
which he erroneously believed was the day of the repre-
sentation election, and handed him the two International
Cable estimates with the comment that he was the only
one who could work on them. At the time of Jarmusz'
layoff, on October 25, all that Jarmusz told him was that
he might have more International Cable work, but he did
not know when he would have it. Watroba also con-
firmed that, to his knowledge, Superior did not send out
collision work.
As to the alleged threats and other acts of interference,
Respondent witnesses testified as follows. Watroba re-
called Jarmusz and Chelecki coming in to see him and
telling him, "You know, we're going to start a union
here," or, "We got a union here," to which he respond-
ed, "Ray, what do you want to do that for?" When Jar-
musz told him they wanted certification, more Blue
Cross/Blue Shield, Watroba replied, "Well, you know,
can't we sit down and talk about this." Then Watroba
asked, "What are you really after?" After the men told
him about increasing the guarantee, fully paid health pro-
tection, tool protection, additional money for detail man
and new car get ready man, Watroba testified he said,
"Why don't you let me see what I can do with Mr.
Izzo." The men said this was all right. Watroba went
and talked with Richard Izzo with Walter Schoenfeldt
present. He started by saying, "This is what the boys are
looking for." Izzo cut him short by telling him, "I just
got the union papers here and they told me I can't talk
about it with the men." Watroba was told not talk to the
men any further. Watroba denied he ever went back to
Jarmusz and Chelecki to tell them the result of his con-
versation with Izzo, but he did learn from the men that
they had already talked to the Union and the Union said
not to talk to anybody about anything. Watroba specifi-
cally denied that this conversation about benefits took
place with Chelecki only after Jarmusz was laid off. He
also denied having any other conversations about the
Union with employees, only telling them he worked with
the Union before and it did not bother him whether they
had a union in there or not.
As for dating Jarmusz' written estimates, he only did
that because of the discrepancy between the date of Oc-
tober 18 already appearing on the documents and the
much later date of November 11 that he received them.
Watroba also recalled on cross-examination that Jarmusz
had been in the shop during his layoff before November
11, but did not have any estimates with him on those oc-
casions. Watroba also finally could not be specific after
being pressed on the matter as to whether Jarmusz had
come in to vote that day he brought in the estimates.
While Watroba readily referred during his testimony
to Jarmusz' mention at the time of his layoff to the possi-
bility of having International Cable repair work, in his
affidavit, given to a Board agent, a portion of which was
read into evidence, Watroba swore that at the time of
the layoff and conversation Ray Jarmusz never men-
tioned International Cable work, a clear, emphatic, and
impeachable conflict which Watroba was unable to ade-
quately explain.
Finally, Watroba admitted under cross-examination
that when he first learned from Jarmusz and Chelecki
that they were bringing a union in he told them, "What
do you want to do that for, this is the wrong time of
year to start this, for the simple reason, we ain't got the
work here. And I said to them, what the heck are you
looking for, and this is what they told me they were
looking for."
Louis Staddon, service manager, started work for Re-
spondent even after Watroba did, on October 5. He ac-
knowledged having been approached by Ferguson who
worked under him, and that Chelecki may have been
present, and asked about working under a union. He re-
sponded that he did not like working under or in a union
shop but did not explain why. Under cross-examination,
Staddon agreed it was possible that these employees
asked what Richard Izzo would do if the Union came in
and that he could have said he thought Izzo would close
the business if the Union came in, basing this response on
his own understanding of the financial condition of the
organization without having any special knowledge of
Izzo's business holdings or personal worth.
Carl Seitz, parts manager, had been employed since
the end of August. He heard from Jarmusz and Ferguson
that they were forming a union. He also heard from
these men that Richard Izzo would close the business. It
was in the form of a rumor that was traveling through
the dealership. Seitz denied that he was asked about this
rumor or that he ever passed it along. Since the rumors
did not involve him and he did not want to get involved
(although he questioned Richard Izzo about them and
learned that Izzo would not close but thought a union
would be a good thing because they would get better
mechanics), he never took the occasion to deny or dis-
avow them to the men.
Richard Izzo, called as a rebuttal witness by the Gen-
eral Counsel under Section 611(c) of the Federal Rules
of Evidence, at first agreed that Ray Jarmusz was laid
off for lack of work on a temporary basis, yet although
Jarmusz' name was included on the eligibility list pre-
pared by Respondent for use at the election, he later
agreed, at the urging or suggestion of Walter Schoen-
feldt, to have Jarmusz' name crossed out and to have
him challenged as not entitled to vote because of his
layoff. Izzo's testimony on this subject matter shows a
confusion, lack of recall, and unwillingness to take re-
sponsibility for the challenge to Jarmusz' ballot which
borders on the incredible. While Izzo did not recall any
conversation with the Board agent conducting the elec-
tion in which he referred to the layoff as permanent,
Schoenfeldt later called to the witness stand as a surre-
buttal witness to challenge Jarmusz' testimony that
Schoenfeldt was, indeed, informed that a challenge to
Jarmusz' vote would mean that he had been a permanent
layoff, testified incredibly that at the time Jarmusz was
challenged he told the Board agent that the layoff was
temporary even though the Board agent had informed
him that if the layoff was temporary, he, Jarmusz, would
1070
SUPERIOR PONTIAC
still be eligible to vote. The result of this apparent pre-
varication and lack of candor was to strengthen the con-
clusion that, at the least, Respondent sought to take ad-
vantage of Jarmusz' temporary layoff by challenging the
validity of his participation in an election which Re-
spondent had probable reason to believe would be close-
ly contested6 and, at the most, that Jarmusz' layoff itself
was part of a plan to frighten the employees into reject-
ing union representation altogether.
Izzo's testimony as the General Counsel's rebuttal wit-
ness also brought to the fore a contradiction between his
trial testimony and pretrial affidavit which strengthened
the General Counsel's contention that Respondent inten-
tionally stopped doing used car repair work in October
after the advent of the union organizing campaign (in
spite of Chelecki's failure to include his testimonial claim
of removal of such work in his affidavit).
Izzo denied categorically under oath that there ever
came a time in October when he stopped doing used car
collision work at the collision shop. His pretrial affidavit
contradicts this assertion. In it, Izzo swore that "con-
cerning the repair of used cars before resale, I did stop
having used car repairs in the body shop because the es-
timates being turned in to me by the mechanics were too
high," and testified that he could have stopped the used
car repair work in October. Izzo then immediately stated
he did not rembember when he stopped such work, then
finally stated he only stopped such work on cars that
were not warranted to put in the department, or not
worth the money to fix. He denied that he took any cars
to another shop for estimates. He also could not remem-
ber how frequently he told the mechanics that the repair
estimates were too high.
Izzo's testimony thus vacillated and he became argu-
mentative and pugnacious in responding to a legitimate
and pertinent line of inquiry highly relevant to the Gen-
eral Counsel's allegation of discriminatory layoff of Jar-
musz.
Respondent independently seeks to attack the credibil-
ity of Ferguson and Chelecki by showing that each em-
ployee harbored resentment and bias against Respondent
because each was subsequently discharged for the unau-
thorized taking of company property from the premises.
In the case of Ferguson, he signed a statement acknowl-
edging that he removed an engine stand without permis-
sion. He also admitted that at the time he made this ad-
mission he had become so upset about losing his job he
had threatened to give back the stand through Superior's
front window. Chelecki admitted taking sandpaper
having a value of approximately $80 for his own use but
vehemently asserted that he had permission to do so.
Chelecki also claimed that the statement he signed admit-
ting the taking resulted from a lie detector test adminis-
tered by a Respondent consultant at a time he had been
unjustly accused of stealing a welding machine.
I am not persuaded that the circumstances surrounding
the discharge of either employee led either of them to lie
on the witness stand regarding his, or the Respondent su-
pervisors', involvement in conversations regarding the
6 In fact, the Union won by a vote of 7 for to none against, with only
Jarmusz' vote having been challenged.
union organizing campaign. To the contrary, both wit-
nesses, and Jarmusz as well, stood up rather well under
pressing cross-examinations during which they main-
tained their composure and repeated credibly their alle-
gations of supervisor threats and, in the case of Chelecki,
Watroba's solicitation of employee demands and later
coupling of a promise of a house union and the terms
and conditions of employment sought by the employees
conditioned on voting out the Union.
In particular, I credit Chelecki that Watroba's solicita-
tion and offer of increased benefits took place toward the
end of October after Jarmusz' layoff and with him alone.
I find incredible Watroba's denial that he ever returned
to Chelecki with Izzo's offer of increased benefits after
first soliciting the employees' conditions for resolving the
labor dispute. I also credit Jarmusz that he submitted the
International Cable estimates to Watroba about October
18 when he prepared them, and that, consistent with
Schoenfeldt's understanding of the matter, Respondent
would have retained Jarmusz to perform the collision re-
pairs but for its discriminatory motive in ridding of itself
the key union adherent on its work force during the cru-
cial period immediately preceding and at the representa-
tion election held on November 12. Watroba's self-serv-
ing insertion of the November 11 date on the estimates
cannot be believed under all the circumstances presented
on the record including the fact that it makes no sense at
all for Jarmusz to have delayed submitting them for
more than 3 weeks after having first prepared them.
Finally, Izzo did not contest the implied threat which
Jarmusz attributed to him on the occasion, within 2
weeks of the election, when Izzo sought to obtain Jar-
musz' agreement to withdraw the charges pending hear-
ing against his company.
Based on the admissions made by the Superior supervi-
sors, Watroba's willingness to acknowledge his solicita-
tion of the terms the employees were seeking and the cir-
cumstances under which he did so, Izzo's and Schoen-
feldt's unbelievable testimony regarding their efforts to
challenge Jarmusz' participation in the balloting, and
Izzo's and Watroba's impeachments under oath, all in
contrast to the generally credible and corroborative testi-
mony of the employee witnesses, I find that the Re-
spondent supervisors engaged in the conduct alleged in
the complaint, threatened employees with a plant clos-
ing, solicited grievances, promised benefits in return, im-
pliedly threatened adverse consequences if the complaint
proceeding was not discontinued, and laid off employee
Ray Jarmusz in an unlawful attempt to punish and fright-
en employees to reject collective-bargaining representa-
tion by the Union at a time when there was work avail-
able for him which he had solicited and when other
repair work had been intentionally withheld in the
period immediately preceding the representation election.
Analysis
Respondent contends that because the conversations in
which employees were informed by different supervisors
of a business closing if the union came in were, if any-
thing, the personal opinions of the speakers, and were
casual and informal in nature, and the conversations
1()7 1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were initiated by the employees themselves, the state-
ments themselves were privileged and should not be held
binding on Respondent. Furthermore, the election out-
come negated any actual coercive impact.
The test for determining whether statements such as
those made by Respondent's supervisors are violative of
Section 8(a)(1) of the Act is whether it may reasonably
be said, that the conduct engaged in tends to interfere
with the free exercise of employee rights under the Act.
American Freightways Co., 124 NLRB 146, 147 (1959);
see also NLRB v. Illinois Tool Works, 153 F.2d 811 (7th
Cir. 1946). Interference, restraint, and coercion under
Section 8(a)(l) of the Act does not turn on the employ-
er's motive or on whether the coercion succeeded or
failed. American Freightways Co. supra at 147. Threats of
plant closing have a particularly strong coercive effect
inasmuch as they affect the jobs and livelihood of all em-
ployees. See General Stencils, 195 NLRB 1109 (1972).
That Respondent was achieving its objective of disrupt-
ing the workplace and placing employee adherence to
the Union in doubt is borne out in the testimony that the
subject of plant closing was circulating as a constant
rumor throughout the dealership.
Employer agents are not privileged to make coercive
statements merely because employees inquire about their
views on the union movement. Indeed, such inquiries
provide the perfect opportunity to pass along the em-
ployer's sentiments without appearing to have initiated
the interchange. It is just such a setting which Respond-
ent now urges insulates it from the unlawful conse-
quences of its agents' conduct. Further, the informal
nature of the circumstances under which the conversa-
tions took place only serves to confirm the normal day-
to-day ambiance at the workplace rather than providing
a defense to the threats which were actually made.
In no instance did any supervisor claim that his re-
marks were his opinion only; invariably each of Re-
spondent's agents attributed his view of the nature of the
Employer's negative response to a successful union effort
to the anticipated and articulated actions of Respondent's
president, Richard Izzo, or to the "Company" in general.
Respondent submitted no evidence which would tend to
support its contention that the managers of the various
departments who passed along the threat were speaking
in any other than in a superior-inferior relationship or
that Izzo lacked either the means or the will to act on
his threat. Neither did Service Manager Staddon articu-
late to the employees that his remark about plant closing
was based on his understanding of Respondent's financial
condition. Even if he had, such a statement hardly meets
the test required to show for its protection that it consti-
tutes a prediction carefully phrased on the basis of objec-
tive fact conveying an employer's belief as to demonstra-
bly probable consequences beyond the employer's con-
trol. See NLRB v. Gissel Packing Co., 395 U.S. 575, 620
(1969).
Watroba's privately arranged (in his office) solicita-
tions of employee grievances and subsequent offers of an
in-house union along with the various, seemingly moder-
ate, improvements in benefits which appear to have im-
pelled union affiliations in the first place form part of the
pattern of Superior's response to the union effort, con-
sistent with the earlier threats designed to cut short em-
ployee adherence which, when they proved ineffective,
now turned to an attempt to "buy off' the workers as
the date for the scheduled election approached. Watroba
was now dealing with an employee probably more malle-
able than the key union leader who by this time had
been laid off and removed from the work force. The two
meetings, at which the grievances were first solicited and
then offers made, constitute a course of conduct inde-
pendently violative of Section 8(a)(l).
Jarmusz' layoff, coupled with Respondent's contempo-
raneous rejection of the International Cable repair work
brought in by Jarmusz and cutback of used car repair
work, either of which would have provided sufficient
work to have retained the two collision shop employees
without layoff, constitutes an independent violation of
Section 8(a)(3) and (1) of the Act. Under the Supreme
Court's formulation in Transportation Management Corp.,
462 U.S. 393 (1983), the evidence establishes that Jar-
musz' protected concerted activities, of which Respond-
ent had full knowledge, were a substantial motivating
factor in its decision to lay him off on October 25. 7 On
that date Respondent had in its possession estimates upon
the basis of which work could have been planned for
Jarmusz sufficient to meet his minimum guarantee for at
least 4 weeks' worth of work, aside from its intentional
cutback of used car repairs evident from Izzo's contra-
dictory testimony. Respondent's animosity to union orga-
nizations, its knowledge of Jarmusz' leading union role
and the timing of its action, coupled with its conduct 18
days later designed to deprive Jarmusz of an effective
participation in the Board's electoral process, under the
circumstances of sufficient work having been available to
have retained him in employment, warrant the result I
have reached herein. Respondent has failed to show that
absent Jarmusz' protected conduct it would have taken
the same action against him. Since Respondent has failed
to rebut the General Counsel's prima facie case it must
be held to suffer the consequences of its illegal action,
whether or not the International Cable work would have
been sufficient alone to have warranted Jarmusz' reten-
tion beyond an immediate 2- to 4-week period.
Izzo's later approach to Jarmusz, to drop the instant
case after his recall to employment, shows the degree to
which Respondent believed Jarmusz' activity was central
to the complaint and its prosecution. Izzo's statement,
leaving hanging the implication that it could take further
action against him if the matter was not dropped-action
perhaps similar to that it had already taken against him-
was as strong an act of intimidation, as if it had been ut-
tered directly, and carried as powerful a jolt. This con-
duct constitutes a further act of interference with Jar-
musz' protected Section 7 rights sufficient in itself to
warrant a conclusion of an 8(a)(1) violation and a
remedy in this case.
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
7 It is clear that, along with my discrediting of Watroba's rationale for
Jarmusz' layoff, I have also discredited his claim that Jarmusz was of-
fered an additional 3 days of guaranteed employment before his layoff
1072
SUPERIOR PONTIAC
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening its employees that the dealership
would be closed if the employees selected the Union as
their collective-bargaining representative, by soliciting
grievances and promising employees, in response, that
they could have their own house union and improved
wages, health benefits, and other conditions of employ-
ment, and by threatening its employees that it would
take retaliatory action if the unfair labor practice case
before the National Labor Relations Board was not
dropped, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By causing a decrease in the hours worked by its
collision shop employees by reducing the amount of
work performed in its collision shop, and by laying off
its employee Raymond Jarmusz on October 25, 1982, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondent laid off Raymond Jar-
musz in violation of Section 8(a)(3) and (1) of the Act,
but also having found that Respondent restored Jarmusz
to his former positon at a later date," I deem it unneces-
sary to include an order requiring Respondent to rein-
state him to his former position. However, I shall recom-
mend that Respondent be ordered to cease and desist
from engaging in such layoffs in the future and further, I
shall recommend that Respondent make him whole for
any loss of earnings or other monetary loss he may have
suffered as a result of the discrimination against him, less
interim earnings, if any for the period from his layoff on
October 25, 1982, to his recall on February 4, 1983. The
backpay shall be computed in the manner set forth in F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest to
be computed in the manner described in Florida Steel
Corp., 231 NLRB 651 (1977). See generally Isis Plumbing
Co., 138 NLRB 716 (1962), enf. denied on other grounds
332 F.2d 913 (9th Cir. 1963).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 9
I The General Counsel has taken no position on the nature of the ap-
propriate remedy for Jarmusz. However, given the fact that the record
shows Jarmusz' return to work in the collision shop on February 4, 1983,
and his continued employment as of April 25 and 26, 1983, at the time of
the hearing, I conclude that the evidence warrants the conclusion I reach
to omit an order to reinstate him to his former position.
9 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
ORDER
The Respondent, Superior Pontiac, Inc., Hamburg,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening its employees that the dealership
would be closed if the employees selected the Interna-
tional Union, United Automobile, Aerospace & Agricul-
tural Implement Workers of America and its Amalgamat-
ed Local 55 as their collective-bargaining representative,
or that it would take retaliatory action if the unfair labor
practice case before the National Labor Relations Board
was not dropped, and soliciting grievances and promising
employees, in response, that they could have their own
house union and improved wages, health benefits, and
other conditions of employment.
(b) Discouraging membership in the International
Union, United Automobile, Aerospace & Agricultural
Implement Workers of America and its Amalgamated
Local 55, or in any other labor organization, by causing
a decrease in the hours worked by its collision shop em-
ployees by reducing the amount of work performed in its
collision shop and by laying off its employee Raymond
Jarmusz.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Make Raymond Jarmusz whole for any loss of
wages or other monetary loss he may have suffered by
reason of the discrimination against him, in the manner
set forth above in the section dealing with the remedy.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Hamburg, New York facility copies of
the attached notice marked "Appendix."' ° Copies of the
notice, on forms provided by the Regional Director for
Region 3, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
Board and all objections to them shall be deemed waived for all pur-
poses.
i' 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1073
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten any of you that the dealership
would be closed if you selected the International Union,
United Automobile, Aerospace & Agricultural Imple-
ment Workers of America and its Amalgamated Local
55 as your collective-bargaining representative, or that
we would take retaliatory action if the unfair labor prac-
tice case before the National Labor Relations Board was
not dropped, and we will not solicit your grievances and
promise you, in return, that you may have your own
house union and improved wages, health benefits, and
other conditions of employment.
WE WILL NOT discourage your membership in the
aforementioned Union, or in any other labor organiza-
tion, by causing a decrease in the hours worked by the
collision shop employees by reducing the amount of
work performed in our collision shop or by laying off
employee Raymond Jarmusz.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed by Section 7 of the Act.
WE WILL make Raymond Jarmusz whole for any loss
of wages or other monetary loss he may have suffered
by reason of our discriminatory action in laying him off
from October 25, 1982, to February 4, 1983, plus interest.
SUPERIOR PONTIAC, INC.
1074