Tom's Ford, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1977

233 N.L.R.B. 23 (N.L.R.B. 1977)

TOM'S FORD, INC.
Tom's Ford, Incorporated and Amalgamated Local
Union No. 355. Cases 22-CA-7103 and 22-RC-
6840
October 18, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 20, 1977, Administrative Law Judge Phil
W. Saunders issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a statement of position concerning Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, 2 and
conclusions of the Administrative Law Judge, to
modify his remedy so that interest is computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977),3 and to adopt his recommended
Order, as modified herein. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Tom's Ford, Incorporated, Keyport, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Insert the following as paragraph I(a) and
reletter the subsequent paragraphs accordingly:
"(a) Laying off, discharging, or discriminating
against employees for joining or supporting Amalga-
mated Local Union No. 355, or any other labor
organization."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has requested oral argument. This request is denied as
the record and exceptions adequately present the issues and the positions of
the parties.
2 In light of our finding that Gordon Scala is not a supervisor and that
Steven Elyar, Victor Webb, and Richard Webber are eligible voters, the
Acting Regional Director is ordered to open and count these four
challenged ballots in Case 22-RC-6840 and to issue the appropriate
certification.
3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
4 Although the Administrative Law Judge made a finding of unlawful
discharge, he inadvertently omitted from his recommended Order the
233 NLRB No. 2
paragraph stating that the Respondent shall cease and desist from such
conduct. We shall modify his recommended Order accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees these rights:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT lay off, discharge, or discriminate
against employees for joining or supporting
Amalgamated Local Union No. 355, or any other
labor organization.
WE WILL NOT interrogate employees concern-
ing their knowledge of the Union and its
organizational activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the Act.
WE WILL offer full reinstatement to Steven
Elyar, Victor Webb, and Richard Webber and
give them backpay with interest for their loss of
earnings and restore their seniority and the
privileges attaching to it.
TOM'S FORD,
INCORPORATED
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Law Judge: Based
on a charge filed on July 28, 1976, by Amalgamated Local
Union No. 355, herein Local 355 or the Union, a complaint
was issued on September 30, 1976, against Tom's Ford,
Incorporated, herein Respondent or the Company, alleging
violations of Section 8(aX1) and (3) of the National Labor
Relations Act, as amended. Respondent filed an answer to
the complaint denying it had engaged in the alleged matter.
Both Respondent and the General Counsel filed briefs.
23
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor,1 I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
At all times material herein Respondent, a New Jersey
corporation, has maintained its principal office and place
of business at 200 Route 35, Keyport, New Jersey, and has
been continuously engaged at this location in the retail sale
and servicing of new and used automobiles. Respondent's
garage in Keyport is the only facility involved in this
proceeding.
In the course and conduct of Respondent's business
operations during the previous 12 months, Respondent
derived gross revenues in excess of $500,000 from the sale
and servicing of new and used automobiles, and during this
period Respondent purchased and caused to be shipped to
its Keyport facility automobiles valued in excess of
$50,000, which automobiles were shipped to said location
directly from States of the United States other than the
State of New Jersey.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II1. THE LABOR ORGANIZATION INVOLVED
Local 355 is a labor organization within the meaning of
Section 2(5) of the Act.2
III. THE ALLEGED UNFAIR LABOR PRACTICE
The main issue in this case is whether Respondent
unlawfully discharged Steven Elyar, Victor Webb, and
Richard Webber, on July 27, 1976, because they engaged in
protected union and other concerted activity, and whether
Respondent, by its Service Manager John Stillings, unlaw-
fully interrogated employees in violation of Section 8(aX3)
of the Act.3
In May 19764 the employees of Respondent were
unrepresented for the purposes of collective bargaining.
Respondent employed approximately 25 employees in the
service and parts portion of its business. Webb and Webber
were employed as line mechanics and Elyar as a new- and
used-car get-ready mechanic until July 27, when all three
were discharged at the same time. 5
I The facts found herein are based on the record as a whole and on my
observation of the witnesses. 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
teaching of N.L.R.B. v. Walton Manufacturing Co., et al., 369 U.S. 404
(1962). As to those witnesses testifying in contradiction to the findings
herein, their testimony has been discredited, either as having been in conflict
with the testimony of credible witnesses or because it was in and of itself
incredible and unworthy of belief. All testimony has been reviewed and
weighed in the light of the entire record.
2 The motion by the General Counsel to introduce by stipulation his
Exhs. 7(a) through 1, and 8(a) through (k), is hereby granted.
3 The transcript in this proceeding is hereby corrected in accordance
with the respective motions from both the General Counsel and the
Respondent, dated May 4 and 9. 1977. Subsequent to the above dates, the
Respondent also filed additional motions on May 18, 1977, for a new or
reopening of the hearing, and a motion to file reply brief, on the basis that
In the spring of 1976, several of Respondent's employees,
including Elyar, Webb, and Webber, began to informally
discuss the possibility of seeking union representation, and
Elyar then contacted an acquaintance of his, and in so
doing acquired the name of the Union. On or about July
19, Elyar called the Union to inquire about seeking
representation for Respondent's employees, and, within a
few days, Lester Horowitz, a business agent of Local 355,
returned Elyar's telephone inquiry and the two men then
discussed the possibility of a union. In the course of their
conversation it was decided that a meeting would be
arranged between the Union and Respondent's employees
and the meeting was set for July 26, but during the ensuing
days between the telephone discussion and July 26, Elyar
and Webb (Webber was on vacation) began speaking with
other unit employees about the Union, and encouraging
them to attend the scheduled meeting. In all, the two men
spoke to most of their coworkers in and around the
Respondent's location while at lunch or while on coffee-
break.
This record also reveals that in the spring of 1976 the
Respondent's service manager, John Stillings, had request-
ed that six mechanics, including Elyar, Webb, and Webber,
take certain mechanic skill tests offered by the National
Institute for Automotive Excellence. This institute is a
nonprofit corporation which conducts competency tests in
automotive mechanics and related areas. The Respondent
paid for the costs of the tests, but they were taken by these
employees on their own time. It appears that a mechanic
participating in this program may take any number of tests
as one is offered for each basic area of automotive repairs,
and anyone who successfully passes one or more tests is
then issued a "certification card." Of Respondent's six
employees who took the skill tests, four of them passed in
at least one area. Webb and Webber passed all of their
tests and Elyar passed four out of five, but mechanic
Charles Nasso passed only one test. Each of these
individuals then received their certification cards. Stillings
admitted that these certificates were not a condition of
employment with Respondent, nor are they relied on by
Respondent in evaluating employees and have nothing
whatsoever to do with an employee's work performance.
Stillings even recalled specifically reassuring mechanic
Charles Nasso, distraught over having passed only one test,
that he did not consider the tests as any criteria. However,
regardless of this, Elyar, Webb, and Webber felt that they
were entitled to some monetary consideration for being
the errors and omissions in the transcript of this hearing were so significant
that the instant record cannot stand in its present form. However, it appears
to me that with the initial motions from the parties, as indicated above,
along with a letter from Capitol Hill Reporting, Inc., also rectifying certain
portions of the transcript, and in consideration of all, this record is now
sufficiently corrected to substantially and adequately reflect these proceed-
ings. In accordance therewith, I hereby deny the motions filed by the
Respondent on May 18, 1977.
4 All dates are 1976 unless stated otherwise.
5 On August 13, a consent election was approved and a secret election
was then conducted by the Board on September 15 among Respondent's
service department employees. On October 15 the Regional Director issued
his Report on Challenged Ballots. On December 10 the Board issued an
order directing hearing in Case 22-RC-6840. On December 28, the Regional
Director issued an order consolidating Cases 22-CA-7103 and 22-RC-6840
for hearing. As concerns Case 22-RC-6840, the only issue heard before me
involved the supervisory status of Gordon Scala.
24
TOM'S FORD, INC.
certified, and particularly where, as here, Respondent
envisioned posting their certificates in the office so as to
advertise the skill of their mechanics to the general public
and to its customers. With this in mind, Webb, Elyar, and
Webber, on July 26, approached John Crombine, a
mechanic who had been with Respondent for quite some
time, and asked Crombine to speak with Stillings on their
behalf as to the possibility of being compensated for
passing the tests. Crombine agreed to do so, and, late in the
day on July 26, he spoke with Stillings on this matter, but
Stillings indicated to Crombine that the final say as to any
compensation or bonus for these tests was not his decision
to make. In this conversation Stillings also asked Crombine
"if there was any Union?" and Crombine then replied
"there are talks of a union," and also testified that the
subject matter of a union was initially raised by Stillings.6
On the evening of July 26, Elyar, Webb, and Webber
went to the scheduled union meeting where they encoun-
tered approximately 11 other unit employees of Respon-
dent and also representatives of Local 355, including Lester
Horowitz. At this meeting, Horowitz discussed the benefits
of union representation and then showed them examples of
union contracts in other organized shops. After these
discussions the union representatives left the room to
permit the employees to talk about the matter among
themselves, and at this time Webb openly identified Elyar,
Webber, and himself, as being the employees who had
contacted the Union. When the union agents returned to
the meeting they then distributed union authorization
cards to the employees, and all 14 employees in attendance
signed cards and returned them to Horowitz. It was also
decided that Elyar would be the liaison between the Union
and the employees, and Elyar was given authorization
cards to distribute to those employees who did not attend
this meeting.
On the morning of July 27 Elyar handed out authoriza-
tion cards in the shop to employees who had not attended
the union meeting the evening before, including John
Crombine. It appears that Webber also spoke with
employee Robert Smith about the union meeting,7 and
during the morning a copy of a Local 355 contract with
another shop was given to Crombine. Webber recalled that
Crombine took the contract, walked away for about 10
minutes, and then returned it to him.
6 Stillings admitted that after hearing Crombine explain the views of
Webb, Webber, and Elyar on their request for possible compensation, he
then asked Crombine, "Was there anything else bugging these guys, is there
any union stuff going on?"
I Service Manager Stillings admitted that he had the type of relationship
with employee Smith in which Smith would come to him and tell him about
a union or about a union meeting.
s Between 5 p.m., the normal quitting time, and the service meeting,
Webber and Webb brought the automobile of Webber's girlfriend into the
shop, put it on a lift, and removed the transmission. It appears that Webber
had received permission from Stillings on the previous day to work on the
car using Respondent's facilities.
9 Stillings testified that he was speaking generally to all six employees
who had taken the tests. Thereafter, however, Stillings testified as follows:
"Well, after I asked for the licenses three times, the three fellows, Elyar,
Webber, and Webb gave me no response whatsoever." Elyar, Webb, and
Webber recall that Stillings asked them specifically if they would turn in
their certification cards, and also agreed that Webb voiced their feelings that
they were entitled to some compensation for passing the tests, and further
that Stillings then stated that he wanted the cards submitted the following
day, and that they ultimately made some indications to do so.
On July 27 a regular monthly service meeting was also
scheduled by Respondent for 5:30 p.m., and all service
employees attended this shop meeting.8 In the initial stages
of this meeting, Stillings discussed various topics concern-
ing the shop including the desire of Respondent to acquire
the certification cards from those mechanics who had
passed the skill tests a few weeks prior, as aforestated.
Stillings acknowledged that Elyar, Webb, and Webber had
informed him of their success on the tests, but otherwise
admitted that he did not speak to any of them about their
certification cards prior to the shop meeting. However, at
this service or shop meeting Stillings supposedly spoke to
all six employees who had taken the tests, and asked them
to turn in their certificates for display. Stillings recalls the
response to his request as being total silence from
everybody, but said that Webb finally spoke up and stated
that he felt those employees who have passed the tests
should receive some sort of monetary compensation or
bonuses before turning in their certificates. 9
Later on during the service meeting the employees were
shown a film, but at the end of the film Manager Stillings
asked Elyar, Webb, and Webber to wait for him in the
office. A few minutes later Stillings walked into the office,
went to his desk, and emerged with checks in his hand, and
then told the three employees involved herein that they
were being discharged. They testified that on this occasion
Stillings told them that he could see they were unhappy
with their jobs, that he knew they were the three instigators
of the Union, that the shop was too small to be a union
shop,10 and that it would not be a union shop."
Respondent argues and contends that the first knowl-
edge they had concerning the Union was when Business
Agent Horowitz appeared on the premises on July 28
protesting the discharge of three employees involved
herein. Respondent maintains that the three alleged
discriminatees were fired over a controversy between the
service manager concerning management's right to display
mechanics' certification cards which had been obtained at
the expense of the Company; that, as a result of this
dispute concerning the certification cards, the three here
involved became wholly uncooperative and caused the
service manager to finalize a previously tentative decision
to fire them. Respondent further contends that Elyar had
"a lot of come back work" in connection with his repair
0o Following the discharges, but preceding the union election, Respon-
dent distributed notices to employees stating its position and included the
following observation: "We do not need a union in our small shop." See
G.C. Exh. 5.
" Stillings testified that prior to the service meeting he had ordered final
checks prepared for Webb, Elyar, and Webber because he anticipated a
negative response from them on the matter of turning in their certificates. As
pointed out, he also had reached this conclusion before ever specifically
telling these employees to turn in their certificates as admittedly he had not
asked them to do so until he mentioned the matter at the service meeting.
Stillings also testified that, on the occasion for the discharges here in
question, he spoke to each of the three individually. Stated he informed
Webb that his lack of cooperation was terrible, that he was causing
problems by comparing his salary to other workers, and then expressed his
dissatisfaction with the fact that Webb only performed brake and front-end
jobs. He said that he then told Elyar that it had been brought to his
attention that Elyar had a lot of "come back," and also admonished him for
allegedly boasting about getting a job elsewhere; and informed Webber that
he had been careless and having problems over the last few months, and that
he, Stillings, had been giving Webber more raises than anybody.
25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobs, that Webber, among other reasons, was involved in
several shop accidents which resulted in considerable
property damage, and that Webb could only do a limited
amount of brake and front-end work. Respondent also
points out to their poor attitudes, and maintains that on
occasions they had "boasted" about leaving the Company.
Victor Webb began working for Respondent as a "line
mechanic" in October 1975. His starting base pay was $160
per week while his base pay on July 27, the date of
discharge, was $180 per week and Stillings admitted that
the wage increase was due to Webb's productivity.' 2
Stillings classified Webb as a "very good mechanic" on
front-end and brake work. Webb testified that his work
performance was never criticized, but, to the contrary, was
complimented by Stillings. It does appear that Webb was
never disciplined for any reason in the course of his
employment with Respondent.
Stillings testified that one of the reasons Webb was
discharged was because he did not turn in his certification
card, and because of his inability to do other than brake
and front-end work, and also causing problems by
continually discussing his desire to receive wage increases.
As pointed out, Stillings conceded that he never
specifically asked Webb (or anyone else) for his certifica-
tion card prior to the service meeting on July 27. It is also
undisputed that Webb was hired as a brake and front-end
mechanic, and Webb testified that while he was learning
other procedures from employee Crombine, Stillings had
never suggested to him that his work ability was limited.
Moreover, Stillings rarely assigned Webb any work other
than brake and front-end jobs, but on occasions when he
did assign Webb other small jobs, he found Webb's
performance to be "fair." Further it would also appear that
Webb's successful test results and certificates show that he
could perform other work, and such is revealed by the
testimony of Stillings on cross-examination:
Q. Do these cards have anything to do with the
type of work they can perform?
A. To some extent yes.
Q. But not in Nasso's case?
A. No.
Q. But in Webb's case?
A. Most definitely.
As to complaints by Webb as to his salary and expressing
his desires for increases - this record is clear that Webb,
like Elyar and Webber, felt that those mechanics who
successfully passed the certification or skill tests should
receive some compensation, and, in accordance therewith,
they asked employee Crombine to intercede on their behalf
and then Webb further enunciated their views on this
subject at the service meeting on July 27. The record is
devoid of any other problem in this regard.
i2 In addition to the base salary, line mechanics also received weekly
bonuses under a system by Respondent, and Webb frequently received such
bonuses.
13 Stillings confirms that he discussed this promotion with Elyar, telling
him the Company was installing some new lifts, but he would have to ask
the front office about it. Thereafter, on or about July 23, according to
Stillings, he went to the office and informed the owner that he was thinking
of moving Elyar into the line mechanic position, but was then told that
Elyar had "a lot of come back work."
Steven Elyar began his employment with Respondent in
July 1975, working as a mechanic preparing new and used
cars for delivery and performing minor repairs. His starting
pay was $130 per week while his pay on July 27 was $145
per week. His wage increase comprised of two raises, the
most recent coming a few months prior to his discharge. In
the course of his employment Elyar had never received any
disciplinary warnings for any reason, nor had his work
performance been criticized. Moreover, it appears that on
or about April or May, Elyar had spoken to Stillings about
the possibility of his becoming a line mechanic when
Respondent added new "lifts" to its operation, and
Stillings indicated that he was "thinking about it." Elyar
and Stillings had a similar decision later on when he again
raised the subject with Stillings on or about the Friday
before his discharge (July 23), and was then told by
Stillings that it was his intention to promote Elyar to line
mechanic. 3
Stillings contends that the specific reasons for his
decision to terminate Elyar were his refusal to turn in his
certification card, his comeback work, and his boasting
about leaving Respondent for other employment. As to the
first reason, it is clear from prior discussion herein, such
refusal to turn in his certification never took place. Relative
to the second reason, Respondent introduced several
internal repair orders which were alleged to be "comeback"
of work initially performed by Elyar, and on jobs which
had been performed by Elyar during the 3 summer months
of 1976 and the orders Stillings had relied on in deciding to
terminate Elyar pursuant to his conversation with the front
office on July 23.14
Stillings gave a rough estimate to the effect that a
mechanic in Respondent's shop might possibly work on
about 3 cars a day or maybe 10 cars a week, and further
estimated that in the 3-month period of May through July,
the period relied on by the Respondent, Elyar would have
worked on between 120 (using the 10-car-a-week basis),
and 180 cars (using the 3-car-a-day basis). The General
Counsel points out that assuming Elyar's five or six
comebacks were, in fact, comebacks, it is clear his
percentage of comeback work is still below that which
Stillings finds acceptable.15
As to the contention that Elyar was seeking a job
elsewhere, Stillings' testimony was that Elyar and Webb
were going to walk out, and Colleen Little, the niece of the
owner who was employed as a service clerk with Respon-
dent, testified that in early July, Elyar asked if she had
heard that Webber and Webb were going to see about a job
at Straub's Buick, and stated that on the following day she
mentioned this conversation to Stillings, Elyar admitted
that 2 or 3 months before his discharge, he had filled out an
application with Straub's Buick.
Richard Webber began working for Respondent as a line
mechanic in May 1975. His starting base salary was $130
14 The term "comeback" is used to indicate those cars which have been
brought back to the dealership by a customer for repair, and it is found that
the problem could have been or should have been discovered by the
mechanic who originally worked on the car.
is This record shows that George Draper had 12 comebacks and that
Nelson Duncan had II comebacks during the same 3-month period without
discipline. See G.C. Exhs. 7(a)-(1) and 8(a)-(k).
26
TOM'S FORD, INC.
per week, and on July 27, the date of discharge, his base
salary was $174 per week. Webber also participated in
Respondent's bonus program, and his increases in compen-
sation represented four individual raises with the last raise
coming about 3 months before his discharge. Stillings again
admitted that Webber's wage increases were based on his
productivity and stated that Webber had received more
wage increases during his short tenure of employment than
any other employee.
One of the reasons assigned to the discharge of Webber
was his involvement in several shop accidents. Webber
recalled an occasion or two when he had been told not to
drive too fast around the shop, that on another occasion he
had dropped an exhaust analyzer machine, and admittedly
had also damaged a light fixture when the hood of a car
struck the fixture. However, all of these incidents took
place several months prior to his discharge and he was
never suspended, never received any written disciplinary
warning, was never verbally warned that his job was in
jeopardy, or that his work performance was not satisfacto-
ry, and other than a few offhand remarks by Stillings at the
time of the above incident, the record is devoid of evidence
that any disciplinary procedure ever resulted from these
incidents or, in fact, that the incidents were ever mentioned
again in any context until the date of the discharge, months
later.
Another reason assigned for the discharge of Webber
was a refusal to turn in his certification card. However, as
previously discussed, Stillings admitted that he had never
demanded submission of the cards prior to the service
meeting, and I have previously found that no employee
actually refused to submit them, as aforestated.
One other reason assigned for this discharge was
carelessness in doing repair jobs, and for proof of same
Respondent introduced various documents or "report
cards" received back from customers.' 6 One exhibit (Exh.
3) is dated in September and therefore, could not have been
received by Respondent until several weeks after Webber's
discharge. Another exhibit is undated (Exh. 6), one shows
that several mechanics worked on a car including Webber
but it is impossible to determine which mechanic was being
criticized (Exh. 7), and Stillings admitted that he could not
have relied on one of the other documents (Exh. 9(g)) as it
was also dated after the discharge. As pointed out, the only
untainted documentary evidence in this sequence appears
to be Exhibit 8, which purports to show that, in March
1976, the Company received a comeback on a job Webber
performed. However, there is no testimony that Webber
was ever questioned about this job in the intervening 4-1/2
months between the complaint and the discharge.
As to Webber complaining about his salary after
receiving more raises than any other mechanic, it is
undisputed that Webber enunciated his views at the service
meeting to the effect that mechanics who passed the
certification tests should be compensated in some way for
their achievement.
It is undisputed that Elyar, Webb, and Webber were the
three leading union adherents in the shop and were the
employees responsible for contacting Local 355, and
otherwise promoting the organizational effort which
culminated in the filing of a representation petition by the
Union the day after their terminations. While Respondent
contends that it had no knowledge of the union drive, or
the involvement of the discriminatees in such a drive prior
to the filing of the petition, reason dictates that this was not
the case. As further indicated, in the week preceding the
terminations, Elyar and Webb promoted attendance at the
union meeting and spoke with many of Respondent's
employees in and around the shop. Following the union
meeting all three of them spoke with employees who had
not attended the meeting, encouraged them to support the
Union, showed certain employees copies of union contracts
at other shops, and also solicited union authorization
cards. Again, this activity was centered in and around the
shop.
The General Counsel further points out that in a small
facility such as Respondent's, where the entire unit consists
of approximately 25 employees, a reasonable inference
may be drawn that Respondent would be aware of a union
attempt to organize its employees, and that this would be
particularly true where the discriminatees advertised the
Union to other employees and who, in the case of
employee Smith, would admittedly inform Stillings of
union activities, as aforestated. Moreover, the close timing
between the initiation of the protected activity and the
discharges also serves to strengthen the inference of
knowledge. It is also noted that Stillings was familiar with
past union organizational drives from prior experiences
with Respondent, knew that there had been such a drive a
year or two earlier, and then on July 26 went so far as to
interrogate employee Crombine about possibly union
activity I day before the discharges. There can be no
serious question but that Stillings had knowledge of the
discriminatees' union activities prior to their terminations,
and I so find.
In the instant case, if this complaint were to be
dismissed, I would have to believe and conclude that as a
coincidence the three leading advocates and organizers for
the Union were all discharged on the same day for varying
work-related deficiencies, all within I week of the initiation
by them of the organizational drive and the day following
the first union meeting, which discharges were also
attributable in part because Webb, Elyar, and Webber
failed to cooperate or respond in the request to submit their
certification cards at the service meeting, and even though
Stillings had admittedly made no prior request that they do
so. Moreover, Stillings contends that he did not make the
decision to discharge the three here involved until after the
service meeting. Why, then, as suggested by the General
Counsel, did Stillings have termination checks prepared
before the service meeting and only for the three discrimi-
natees and why did he decide to discharge only three while
others may also have passed the tests? I am in agreement
with the General Counsel that the answer to these
questions lies in the realization that the certification card
issue was a pretext for the real reason for discharge - the
desire of Respondent to quash the incipient union drive by
eliminating its chief protagonists - and such motive
16 See Resp. Exhs. 3 through 9(g).
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
becomes even more apparent upon examination of the
alleged work deficiencies of each discriminatee.
As indicated, Webb was supposedly discharged because
of his limited skills - being able to perform only brake and
front-end work. Yet, the record evidence shows that Webb
was hired as a brake and front-end mechanic, performed
this work on an almost exclusive basis because this was
usually the only type of work Respondent assigned him,
and performed his work in a fashion which enabled him to
receive regular wage increases which Stillings admits were
based on his performance; and such also must be viewed in
the context of never having received any type of disciplin-
ary warning, never having been told that his job was in
jeopardy, and a record devoid of any evidence whatsoever
that Respondent's brake and front-end work had declined.
Respondent contends that Elyar was discharged because
he had a lot of comebacks, and because he boasted about
getting another job, as aforestated. However, this record
reveals that as of 3 days before his discharge Stillings
intended to recommend him for a promotion to line
mechanic, and that the comebacks relied on by Respon-
dent in a 3-month period possibly amounted to a figure
below that considered acceptable by Stillings. This, too,
must be considered in the context of Elyar's having
received no disciplinary warnings, never having been
advised that his work performance was other than good,
and his having received various wage increases with the last
coming shortly prior to his discharge. As to Elyar's alleged
"boasting" about getting another job - this record shows
that Elyar had filed an application and then mentioned to
another employee that he and others were going to see
about jobs at Straub's Buick. I suggest that it would be
extremely difficult to conclude that such statements and
conduct could result in any bona fide basis for discharge,
and especially when viewed in context with the other
circumstances. Respondent contends that Webber was
discharged because of his carelessness in causing shop
accidents. However, as has been noted, the only reliable
documentary evidence introduced by Respondent showing
Webber's carelessness, relates to an accident which
occurred months prior to the discharge. Moreover, Webber
was never disciplined in any way and was never warned
that his job was in jeopardy, but, to the contrary, Webber
regularly received weekly production bonuses and, in his
14 months of employment, received four wage increases
which were based on his work performance and which,
Respondent concedes, represented the most wage increases
granted to any employee during such a period.
I have found that Webb, Webber, and Elyar were
discharged because they joined or assisted Local 355,
sought to bargain collectively through representatives of
their own choosing, and/or engaged in other concerted
activities for the purpose of collective bargaining or mutual
aid or protection.
On July 26, Crombine, at the request of the discrimina-
tees, spoke to Stillings about possible compensation as to
the certificates, and in the context of that conversation
Stillings admits to asking: "Was there anything else
bugging these guys; is there any Union stuff going on?"
Crombine then recalls advising Stillings that "there are
talks of a union." The questioning by Stillings under these
circumstances constitutes unlawful interrogation in viola-
tion of Section 8(aX 1) of the Act.
The Union challenged the ballot of Gordon Scala (Case
22-RC-6840) on the ground that he is a supervisor within
the meaning of the Act. Respondent contends that Scala is
a working foreman who does not possess any of the indicia
of supervisory status.
Since May 1976, Scala has been working in the new- and
used-car section of the service department. This section is
under the overall direction of Service Manager Stillings. In
addition, decisions concerning how extensively individual
cars should be repaired are made by the general sales
manager. Thus, there are two levels of supervision over the
new- and used-car department.
Scala testified that after he received an internal repair
order made up by the sales manager or the general
manager, the repair order would then be logged on a sheet,
and after so doing the cardboard copy of the repair order
would be put in a rack where the mechanics might either be
handed the repair order, or they could take it out the rack
themselves. It also appears that the sales department
establishes the priority for a particular job, and the day of
delivery will usually be specified on the repair order.
George Draper, a former employee, testified that if Scala
was not at or near his desk a mechanic could simply take a
job from the top of the rack. Moreover, Scala testified that
the distribution of internal repair orders to the mechanics
was often based on the generally known preference of the
mechanics. In response to a question whether the distribu-
tion of jobs involvesjudgments, Scala stated: "Well, I don't
make the judgment. It's just common knowledge among all
of us. I know what I can do. He knows what I can do. I
know what he can do. It's general knowledge. We work
together." As pointed out, this record demonstrates that
the routing of internal repair orders is nothing more than a
routine function that goes over Scala's desk. Other
employees can and do pick up orders from the rack at
Scala's desk and, in turn, select the highest priority job or a
job that suits their abilities, and the selection process works
in an orderly manner even when the mechanics choose
their own jobs. In fact, Scala is frequently away from his
desk performing other work.
As further indicated, Scala testified that only Manager
Stillings is responsible for hiring employees, and also
credibly testified that he does not interview employees in
connection with hiring, has never recommended an
employee for hire, nor can he transfer any person,
recommend transfers, suspend employees, lay employees
off, recall laid-off employees, recommend promotions, nor
can he recommend discharges. Scala stated that he never
recommended anyone for a raise in the new- and used-car
department, and that he does not attend supervisory
meetings, and, in conflict to the testimony of Nelson
Duncan, denied giving any direct recommendation relative
to a pay raise for Duncan. Duncan had testified that Scala
told him he had gotten him a raise, but Scala testified that
he merely passed the request for a raise from Duncan to
the service manager, and said that some time later Tom
Lyttle had asked him a question concerning whether
anybody needed a raise. Only at that point, when the
28
TOM'S FORD, INC.
subject was brought up by the owner, did Scala again
mention Duncan's request.
Daniel Robertson testified that Scala was called in to ask
him some questions before he was hired, but Scala denied
that he had ever interviewed anybody for a job. Stillings
testified that he had called Robertson back in order to hire
him after having checked his references, and at this time
Scala happened to be in the area and he then introduced
Scala to the newly hired employee. Thus, while admittedly
some conversation took place, it has nothing to do with the
hiring process.
Several witnesses in this proceeding testified that Scala
was referred to as "Manager," but, of course, the real issue
concerns Scala's duties, and not what other employees
might have called him. While Scala does not punch a
timeclock, it appears that this past arrangement or practice
was continued over into his new position. It is also true that
Scala earns more than his coworkers, but this record shows
that he has greater skills and more seniority than the other
men, and his service commission was a carry over from his
former position of a service writer. As further pointed out,
Scala does not maintain his own set of tools, but he does
use those of his coworkers for a particular job, and since he
seldom does protracted mechanical work on any individual
car, there is no need for him to have his own set of tools.
I find that any recommendations or directions issued by
Scala with respect to other employees were routine in
nature and did not require the exercise of independent
judgment, and further that his powers of directions were
limited and as a result Scala was no more than a working
foreman who merely transmitted work orders and advice to
other employees. Moreover, even assuming, arguendo, that
one or two specific instances of supervisory authority have
been shown, it is, nevertheless, well established that
supervisory authority of a sporadic and irregular nature is
insufficient to qualify an employee as a supervisor.
IV. THE REMEDY
Having found, as set forth above, that Respondent has
engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative action set forth below designed to
effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Steven Elyar, Victor Webb, and Richard
Webber, I shall recommend that the Respondent offer
them immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have suffered
by reason of the discrimination against them by payment
to them of a sum of money equal to that which they would
normally have earned from the date of their discharges, less
net earnings, during said period. All backpay provided
herein shall be computed, with interest on a quarterly basis,
17 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
in the manner described by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce 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 interfering with, restraining, and coercing their
employees in the exercise of the rights guaranteed by
Section 7 of the Act, as detailed herein, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(aX)(1) of the Act.
4. By unlawfully discharging Steven Elyar, Victor
Webb, and Richard Webber, Respondent has engaged 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
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issued the following recommended:
ORDER 7
The Respondent, Tom's Ford, Incorporated, Keyport,
New Jersey, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees concerning their knowledge
of the Union and its organizational activities.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer to the three employees named herein immediate
and full reinstatement to their former positions or, if such
positions are no longer available, to substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges, discharging if necessary any employ-
ees hired to replace them, and make theml whole for any
loss of earnings they may have suffered as a result of the
unlawful action taken against them in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its place of business copies of the attached
notice marked "Appendix."'8 Copies of said notice, on
18 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
(Continued)
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forms provided by the Regional Director for Region 22,
after being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1g The ballots of Elyar, Webb, and Webber were challenged by a Board
agent because their names did not appear on the list of eligible voters
submitted by the Company. However, since I have found that all three were
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that since the representa-
tion case (Case 22-RC-6840), was consolidated concerning
the issue raised by the challenge to the ballot of Gordon
Scala, and my findings of fact and conclusions are set forth
above, the challenge be hereby overruled and the ballot of
Gordon Scala be opened and counted, and a revised tally
issue.19
discriminatorily discharged prior to the election, they too were eligible
voters as their reinstatement dates from July 27, 1976. Recommendations
made herein on all issues raised by the consolidated cases, shall be
submitted directly to the Board.
30