Towne Chevrolet

National Labor Relations Board - Board Decisions

Jun 27, 1977

230 N.L.R.B. 479 (N.L.R.B. 1977)

TOWNE CHEVROLET
Towne Chevrolet and Amalgamated Local Union 355,
Autoworkers of New Jersey. Case 22-CA-6808
June 27, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On October 8, 1976, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, the Charging
Party filed cross-exceptions and a brief in support
thereof, and the General Counsel filed a brief in
opposition to the 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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order, as
modified herein.
We agree with the Administrative Law Judge that
the Respondent violated Section 8(a)(1) of the Act by
interrogating employees concerning their union
activities, by soliciting employee complaints, and by
promising and granting improved conditions of
employment in order to discourage their support for
the Union. Further, we agree with her conclusion
that employees Velders, Bijas, and Macklin were
terminated for discriminatory reasons in violation of
Section 8(a)(3). We also find that the strike here in
question was in part caused by the Respondent's
termination of Velders and Bijas and its refusal to
reinstate them and, accordingly, that it was an unfair
labor practice strike.
However, unlike the Administrative Law Judge, we
find that the Respondent did not violate the Act by
informing the striking employees that it would cease
paying insurance policy premiums on their behalf, or
by discontinuing such payments, as the aforesaid
employees are not entitled to compensation for the
period they are on strike, 2
Moreover, on the facts and for the reasons set forth
below we find that Gary Bouchet, a full-time student
who is engaged in training at the Respondent's
establishment under a state vocational training
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
230 NLRB No. 60
program, should be excluded from the unit herein
found appropriate.
The record shows that 17-year-old Bouchet is
enrolled as a full-time student at a vocational high
school in New Jersey under a cooperative industrial
education and special needs program. Supervised
training under this program permits students to gain
practical experience in a variety of occupations and
trades which would otherwise be denied them under
state law restricting the employment of minors under
18 years of age. Pursuant to the aforesaid program,
Bouchet, his father, a high school teacher-coordina-
tor, and a representative of the Respondent entered
into a training agreement under which the latter
agreed to employ Bouchet on a part-time basis "for
the purpose of training the student in the automotive
trade." Among other things, this agreement requires
that student-learners work a minimum of 15 hours
and a maximum of 20 hours per week while school is
in session.3 The Respondent, who is responsible for
Bouchet's on-the-job training, is required to prepare
progress reports at regular intervals and must permit
the teacher-coordinator entrance onto the premises
whenever the latter needs to observe and evaluate the
student. Bouchet, on his part, may not change jobs
without the approval of the teacher-coordinator. The
agreement also provides that Bouchet "while in the
process of training, will have the status of student-
learner, neither displacing a regular worker nor
substituting for a worker that ordinarily would be
needed by the [Respondent I." The agreement may be
terminated by the Respondent or the teacher-coordi-
nator at any time after consultation with the other.
It is clear from the foregoing that Bouchet is
primarily engaged in vocational training in a learning
environment over which the Respondent and the
teacher-coordinator together exercise a substantial
degree of control. It is equally clear, indeed it is
expressly stated, that the training program is not
intended to meet the Respondent's staffing require-
ments. Bouchet himself does not participate in the
program for the purpose of earning a living but
rather to develop proficiency in a trade he subse-
quently intends to enter. In these circumstances, we
do not believe that Bouchet is adequately identified
with those in the bargaining unit to share a
community of interest with them.4 Instead, we view
the relationship between Bouchet and the Respon-
dent more as an educational rather than as an
employment relationship where the circumstances
2 Trading Port, Inc., 219 NLRB 298, 299, fn. 3 (1975).
3 Under conditions established by the State of New Jersey, students are
permitted to work longer hours when on vacation.
4 N.LRB. v. Certified Testing Laboratories, 387 F.2d 275, 277 (C.A. 3,
1967); Pawating Hospital Association, 222 NLRB 672 (1976). W & W Tool d
Die Manufacturing Co., 225 NLRB 1000 (1976), relied on by the
Administrative Law Judge, is inapposite to Bouchet's situation herein.
479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affecting the performance of work are subject
exclusively to an employer's right of control. Accord-
ingly, we shall exclude Bouchet from the unit here in
question.
Excluding the card signed by Bouchet, only 5 of
the Respondent's 10 unit employees have signed
cards designating the Union as their representative,
which is less than the majority required to justify the
imposition of a bargaining order in the circumstances
of this case. We shall, therefore, delete the require-
ment that the Respondent bargain collectively with
the Union as the representative of the employees
here involved. 5
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, Towne Chevrolet, Middletown, New Jersey, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Delete paragraph 1(c).
2. Delete paragraphs 2(b) and (d) and reletter the
remaining paragraphs accordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
5 Macklin, whom the Respondent hired to replace Velders after the latter
was discriminatorily discharged, was one of the five individuals to sign a
union authorization card. As his card is no longer determinative in
establishing majority status, we find it unnecessary to pass on its validity.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees about their
union membership, solicit employee complaints,
promise or grant improved conditions of employ-
ment, tell employees that an employee had been
terminated because of his union activities, in
order to discourage membership in or activities
on behalf of Amalgamated Local Union 355,
Autoworkers of New Jersey, or any other labor
organization, or in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed in Section 7 of the
National Labor Relations Act, except that noth-
ing contained herein shall be construed as
requiring us to revoke any employee benefits
previously granted.
WE WILL NOT discharge, lay off, or otherwise
discriminate against any employees in regard to
their hire or tenure of employment, in order to
discourage membership in or activities on behalf
of the above-named union or any other labor
organization.
WE WILL make Frank J. Velders and Richard
T. Bijas whole for any loss of pay each of them
may have suffered as a result of the discrimina-
tion against them, and WE WILL offer the
employees who have been engaged in an unfair
labor practice strike that began on February 16,
1976, upon application, reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, discharging, if necessary, any replace-
ments hired since they went on strike, and WE
WILL make each of the striking employees whole
for any loss of earnings they may have suffered by
reason of the failure, if any, to reinstate them,
upon application.
TOWNE CHEVROLET
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge:
Upon charges and amended charges filed on February 18,
March 3, and April 9, 1976,1 respectively, by Amalgamated
Local Union 355, Autoworkers of New Jersey, herein
referred to as the Charging Party or the Union, the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 22 (Newark, New Jersey),
issued a complaint and notice of hearing on April 19. The
complaint, as further amended at the hearing, alleges in
substance that Towne Chevrolet, herein called the Respon-
dent, solicited employee complaints and informed employ-
ees it preferred to deal with them without the intervention
of the Union on or about January 26 and 28; granted
employees an improvement in working conditions on or
about February 4 to induce them to refrain from union
membership or activities; informed employees on or about
February 5 that an employee had been terminated because
of his union activity; discharged Frank Velders on or about
February 6, laid off Richard Bijas on or about February
12, and thereafter failed and refused to reinstate them
because of their union or protected concerted activities;
since on or about February 16 refused to recognize and
bargain collectively with the Union as the exclusive
representative of the Respondent's employees in an
appropriate unit; on a date between February 16 and
March 10, permanently replaced Stanley Macklin, an
All dates hereinafter refer to 1976 unless otherwise indicated.
480
TOWNE CHEVROLET
employee who participated in a strike that began on
February 16 and was caused and/or prolonged by the
Respondent's unfair labor practices; and engaged in unfair
labor practices so serious and substantive in character and
effect as to warrant the issuance of an order requiring the
Respondent to bargain with the Union; and that the
Respondent, by such acts and conduct, has engaged in
unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the National Labor Relations Act.
The Respondent, in its answer duly filed, denies all the
unfair labor practice allegations of the complaint.
Pursuant to notice, a hearing was held before me in
Newark, New Jersey, on June 9 and 10. All the parties
appeared at the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and
to introduce relevant evidence. At the close of the hearing,
the parties waived presentation of closing argument.
Subsequent to the hearing, briefs were filed on or about
July 29 by the General Counsel, the Charging Party, and
the Respondent, which have been fully considered.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a New Jersey corporation, maintains
its principal office and place of business at Middletown,
New Jersey, where it is now, and at all times material
herein has been, engaged in the retail sale of new and used
automobiles, trucks, and related products. In the course
and conduct of its business operations, the Respondent
annually receives gross revenues valued in excess of
$500,000, and receives goods valued in excess of $50,000
which are transported to its Middletown place of business
directly from States other than the State of New Jersey.
The complaint alleges, the Respondent in its answer does
not deny, and I find that the Respondent is, and at all times
material herein has been, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent in its answer does
not deny, and I find that Amalgamated Local Union 355,
Autoworkers of New Jersey, is, and at all times material
herein has been, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Respondent's Supervisors
The complaint alleges that Lawrence Tynan, president,
John Clark, sales manager, and William Kabe, service
manager, are supervisors within the meaning of Section
2(11) of the Act and agents of the Respondent. The
Respondent in its answer does not deny these allegations.
At the opening of the hearing, however, when the General
2 Board Ford, Inc., 222 NLRB 922 (1976).
Counsel sought to amend the complaint to allege that
Michael Giannini, new-car department manager, also was
a supervisor, the Respondent claimed surprise as Giannini
had not been with the Respondent since about mid-
January. The amendment was permitted, with leave
granted the Respondent to request further time to meet this
allegation if necessary. Counsel for the Respondent
asserted at the close of the hearing that an effort made to
locate Giannini had not been successful, but that no
adjournment was requested for this purpose.
Bijas testified that his job interview in August 1975 was
with Giannini, who said he had to check with a superior
but Bijas had the job, and that Bijas and the two other
employees who were engaged in preparation of new and
used cars received their assignments from and reported to
Giannini until Giannini left in late January 1976. At that
time Bijas was told that Clark and Kabe would be his
supervisors.
Clark, who has been the Respondent's sales manager for
approximately 10 years and was responsible for the entire
sales operation as well as repair and preparation of cars,
testified that he did not transmit orders through Giannini
but Giannini saw that the work was done; that he was not
sure what Giannini's responsibilities were in that regard
and did not know what Giannini's title was or if Giannini
had one; that he did not supervise Giannini, who worked
for the service department; and that he, the used-car
manager, and Giannini told the men on which cars they
were to work.
I find, on the record as a whole, that Giannini had
authority to hire employees or effectively to recommend
their hire, and that he responsibly directed the work of
employees, and, therefore, that Giannini was a supervisor
within the meaning of the Act.2
B. Organization of the Union
In January Velders discussed organizing a union with
other shop employees, who expressed an interest in doing
so. On or about January 21, Velders got in touch with
Sofield, a business agent and officer of the Union, and
arranged a meeting to be held at a bowling alley located
near the Respondent's place of business at 6 p.m. on
January 22. Velders and Vaspory notified employees of the
meeting. Sofield met on that date with Velders, Bijas,
Vaspory, Rohloff, and Bouchet. All were mechanics except
Bijas, one of the three shop employees who prepared cars.
All five employees expressed their desire to become
members of the Union, and gave signed membership cards
to Sofield. At work the next day, January 23, Bijas asked
Jones and Seward, the other two employees who prepared
cars, each of whom had been employed by the Respondent
for many years, why they were not at the meeting. 3 Later
that day, Vaspory, who distributed union cards, gave Bijas
a card which Bijas asked Jones to sign, but Jones said he
wanted time to think about it.
3 Jones and Seward were not called as witnesses.
481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Shop Meeting on January 28
1. Events before the meeting
Bijas testified that on Columbus Day 1975 he said to
Giannini that, if they had a union, that day would be a
holiday, and that Giannini responded, "if you want to keep
your job here . . . do not ever talk about a Union in the
shop to Mr. Tynan or any management personnel or they
will fire you on the spot." 4 Bijas also testified that, a couple
of days before the union organizing meeting in January, he
asked Giannini if it was true Giannini was leaving the
Respondent; that Giannini said it was, and then asked if it
was true as Giannini heard that "we were probably going
to vote for a Union"; that, when he said it was, Giannini
asked if there was enough prounion sentiment to vote the
Union into the shop; and that, when he indicated there
was, Giannini said Tynan "was not in favor of a Union in
the shop," and he thought Tynan knew of the union
activities.
Bijas testified that on January 26 he went to Clark's
office to discuss a sick-pay grievance; that after they
completed that discussion Clark "said to me that he
understood there were some grievances down in the shop
and he wanted to know what these were. . . he also stated
that he was pretty sure there was a move by the people
down in the shop to organize a Union and he asked me
what were the gripes of the employees and why would they
want to vote for a Union"; that Bijas mentioned benefits,
pay, hospitalization, insufficient clean uniforms, and cold
temperatures in the shop during the winter; that Clark
asked whether he thought the majority "would vote for a
Union" and he said he did; and that Clark said he did not
believe Velders would ever join the Union as Velders left a
previous job during a labor dispute, but he said he "felt
there was a strong possibility Mr. Velders would join the
Union." During this discussion, Bijas testified, he asked for
a raise, and Clark said Bijas should do a good job and "if
everything quiets down I will see if I can get you a raise."
Clark testified that Bijas and he were friendly and
discussed problems; that on or about January 26 Bijas
came to his office to discuss some problems, including sick
pay, supply of uniforms, lack of heat, and work on
employee cars after hours; and that he promised to talk to
Tynan and get back to Bijas. Clark also testified that his
only conversation with Bijas about Velders occurred on the
picket line about a week after a strike started on February
16, that he usually stopped at the line to greet Bijas, and
that he was not sure how they got into the subject of this
conversation but he said to Bijas that Velders would not
picket as Velders left a job after 20 years "because of the
union," and Bijas responded that Velders was there. At
another point Clark testified that he told Bijas during the
strike (he did not know when but it was after he had seen
Velders on the picket line more than once) that he was
surprised to see Velders on the picket line because Velders
had quit a former job when a union came in and Velders
refused to join it.
4 There is no allegation in the complaint pertaining to this incident,
which the General Counsel stated was presented only to show the
Respondent's union animus.
Clark told Tynan on January 26 about the employee
complaints that had been reported to him on that day by
Bijas. Clark maintained that he reported only the com-
plaints, and did not mention Bijas or the Union, but finally
admitted he told Tynan "probably the entire conversation"
with Bijas. Tynan testified that he spoke to Clark
frequently in the shop, that Clark on January 26 told him
of the shop complaints but did not state who made the
complaints and said nothing about the Union in this
discussion, and that he decided to explain his policies and
told Kabe to call a shop meeting. At another point Tynan
testified that Kabe decided on the date for the meeting,
that Kabe liked to hold them monthly but it was usually
every other month, and that he thought the last one was in
December 1975 but there was no record of it. Kabe
testified that he suggested this meeting in order to prevent a
new metrification system that would be applicable to new
Chevettes. Most of the employees who testified could recall
only one other shop meeting, which was about shop work,
and none similar to the one here in nature.
2. The shop meeting
On January 28, 2 days after the Bijas-Clark conversation,
the Respondent held a meeting of shop employees, who
were informed of the meeting by word from Kabe the day
before and a notice posted at the timeclock on the day of
the meeting. Langhurst, the office manager, attended the
meeting. Fair, the parts manager, and Parzeck, the service
writer, were told they could attend if they wished, but they
and the salesmen did not attend. The meeting began at
noon and lasted about 2 hours. Luncheon was provided by
the Respondent.
Kabe spoke about the new metrification system. Tynan
was, however, the principal speaker. He greeted Bijas and
Rohloff as the newer employees, and stated that he was
explaining company policies as Clark had reported there
were employee complaints. He had with him a description
of employee benefits printed in a magazine on which he
had written some notes. He testified he did this in
preparation for issuance of an employee handbook, that he
began working on it 3 years ago, that he promised to print
it in booklet form so there would be no further question,
but that it was not yet completed at the time of the hearing
herein and he did not know when it would be completed.
At the shop meeting, Tynan read the 29 benefits listed. In
setting forth the various benefits, Tynan made reference to
the fact that the Respondent had a profit-sharing plan. He
described its advantages over the Union's pension plan,
one of which was that money owed under the Respondent's
plan would be available when due, whereas funds for
payment of pensions under the Union's pension plan
would probably be dissipated by officers of the Union, and
referred to a clipping that he had from the New York
Times about abuses totaling millions of dollars by union
officials of union welfare funds. Some of the employees
testified, however, that they had never heard of the profit-
sharing plan or of various other benefits described at this
meeting by Tynan, who testified that he believed the
482
TOWNE CHEVROLET
handbook notations reflected the policies which were then
in effect. Tynan also testified that he thought he was aware
in January of all the job benefits but would "certainly
forget them" if he did not have a document available to jog
his memory; that, when he hired managerial personnel, he
told them of the employment benefits, which were greater
than those for employees, and he assumed supervisors did
so when they hired employees; and that this had to be done
from memory as there was no document setting forth the
benefits.
Tynan was a member and officer of an automobile dealer
group that he testified advised members on "the preventive
maintenance program designed to keep the union out of
your place of business." He testified that he has followed
such a program for years and, in the course thereof, has
accumulated and maintained a file of clippings and other
materials pertaining to four different unions from which he
excerpted the clipping about the Union's pension plan that
he used at the shop meeting; that he chose this clipping
because it pertained to pension plans, but admitted others
did also; that he was familiar with the Union, which
represents employees in about half the shops in the area;
and that his "purpose in maintaining the file is to maintain
an ongoing program which will prevent our shop or our
employees from becoming interested in unions," but that
was "not particularly" his purpose in holding the shop
meeting.
Tynan testified that after reading the list of benefits he
stated that any American had a right to join a union, but he
preferred to deal directly with his employees without a
union. He also testified that he did not know then of any
activity on behalf of the Union among his employees, and
denied that he said he heard some employees wanted the
Union. According to the testimony of Vaspory, Bijas,
Rohloff, Velders, and Bouchet, Tynan brought up the
subject of the Union and said he heard some employees
wanted the Union and he would do everything in his power
to keep the Union out.
It is undisputed that Tynan, after describing the benefits,
asked the employees what their complaints or problems
were. Employees raised questions about the wage rates,
lack of sufficient clean uniforms, cold temperatures in the
shop during the winter, and the prohibition against
working in the shop at any time on their own cars. Velders,
one of the first to speak, asked about the charge for work
done by Vaspory on Seward's car at regular rather than
employee discount rates. Bijas asked questions about
employees working on their own cars after hours, about a
raise and overtime pay, about the higher rates paid
contractors for the same work done by employees, and
about the supply of clean uniforms. Questions were also
raised by Rohloff, Bouchet, and Vaspory. Tynan answered
some questions, indicated he would further consider
certain matters, and said as to some problems raised that
he was trying to improve the situation.
Langhurst testified that he had never before attended a
meeting of shop employees; that Tynan asked him to
attend this one to answer questions about benefits but
Tynan set forth the benefits himself; that he did not know
if the benefits were explained to the employees before this
meeting; that he maintained hospitalization, sick days, and
vacation records and had been working with Tynan since
early December 1975 on the handbook which was not yet
finalized; and that he thought the profit-sharing plan began
in 1974 or 1975, that shop employees participated in it, and
that the insurance company in charge sent out yearly
statements. Langhurst also testified that he did not recall
Tynan saying employees would be unable to collect under
the union pension plan, but was not sure Tynan did not say
it; that he did not recall if Tynan spoke of unions in
general, or said he did not care whether the Union got in or
not; and that Tynan did not say he heard the employees
wanted the Union.
3. Events after the meeting
After the shop meeting, Seward received a refund of $20
for the work done on his car. About a week after the
meeting, a written notice was circulated to the shop
employees stating that, "Pending the printing of our
employee handbook which will detail these and other
policies and benefits of employment," they could from 5 to
7 p.m. on Wednesdays, with the express permission and
prior approval of the service manager, do work on their
personal vehicles but not make major repairs or wash or
polish their cars, and that they could obtain parts for GM
cars from the parts department at employee discounts.
Bijas went to see Clark after the meeting to ask what
Clark thought Tynan would do about the matters raised.
He testified that during this conversation Clark said he was
sure it was the Union that was organizing as it had
attempted once before to organize the shop, and that it was
not as good as another union Clark named.
Clark testified that when Bijas came to see him after the
shop meeting and asked what the results were, he said he
did not know but would check with Tynan; that Bijas also
asked about sick pay for Vaspory; and that Bijas "went
over the same thing, uniforms and everything. And he said
to me the union gives three uniforms per week. And I said
what union. And he said, Amalgamated and that was it.
That was the end of the conversation." Clark denied that
he asked why Bijas would want to vote for the Union. He
also denied telling Bijas that he was sure there was an
organizing move in the shop, that he had talked to Tynan
about the Union, or that he did not believe Velders would
vote for the Union. He testified that he recognized the
name of the Union mentioned by Bijas because he had
read the newspaper article about the union pension funds
which he assumed Tynan showed him. He denied that he
told Tynan anything about his conversations with Bijas
except what problems were raised, then admitted he related
to Tynan "probably the entire conversation" of January 26,
but denied that he reported to Tynan the conversation with
Bijas about the Union after the shop meeting.
Concluding Findings
I found Bijas a more candid and believable witness than
Clark. I also found the employees who testified about the
shop meeting impressive and reliable witnesses, whereas I
found Tynan an unconvincing witness whose testimony
was contradictory and inherently inconsistent. Moreover,
Tynan confirmed much of the testimony of the employee
483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses. I do not credit Tynan's testimony that he did not
know, at the time of the shop meeting, that there was any
union organizing activity among the shop employees. The
complement of employees was very small. Much of the
union discussion and activity took place in the shop.
Moreover, Clark as well as Giannini had questioned Bijas
about the Union before the shop meeting. I do not credit
the testimony of Clark and Tynan that Clark told Tynan
about the complaints expressed by Bijas, but did not name
Bijas, and did not mention the Union. Clark admitted the
Union was referred to in his conversation with Bijas, and
also admitted, reluctantly, that he related to Tynan
"probably the entire conversation" with Bijas on January
26.
Accordingly, I find, on the basis of admissions by the
Respondent's witnesses, the credited testimony, and the
evidence in its entirety, that Clark questioned Bijas about
the union activities and about the employee complaints,
and that a shop meeting was announced the next day and
held the following day at which Tynan informed employees
about the many job benefits available, some of which they
had never before heard of, including profit sharing; stated
that he preferred to deal with them without a union, and
that they could rely on the profit-sharing plan while union
officials might dissipate the funds in the union pension
plan as they had previously done; and solicited employee
complaints and promised to consider them. After the
meeting, Tynan granted an improvement in working
conditions requested by several employees at the shop
meeting, and refunded to an employee part of the charge
made for repairs on his car, another matter raised at the
meeting. I find, in all the circumstances of this case, that
Tynan called and conducted the shop meeting of January
28 in an effort to discourage union membership and
activities. I find further that the Respondent interrogated
employees about their union activities, solicited employee
complaints, and promised and granted improved condi-
tions of employment to discourage union membership and
activities, and thereby interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.5
D. The Terminations
1. Discharge of Velders
Velders began working for the Respondent as a line
mechanic about October 1971, and was the mechanic with
the longest service. He testified that he had previously
indicated to Kabe he was thinking of taking a vacation,
without setting a date, in order to finish some work on his
house, and that on or about Wednesday, February 4, he
asked Kabe for a week's vacation to begin on Monday,
February 9; that Kabe called him in on Friday, February
6, and suggested that he go on unemployment as he had
previously requested; that he said his wife was ill, and
Kabe expressed regrets and asked about the remodeling
work on his house; that there was no mention of
termination; and that he received his week's pay and
5 Surface Industries, Inc., 224 NLRB 155 (1976); Crown Zellerbach
Corporation, 225 NLRB 911 (1976).
vacation pay on that Friday, the usual payday, and began
his vacation on Monday. Velders explained that the
reference to going on unemployment was because he had,
in late October 1975, asked to be laid off to go on
unemployment but Kabe responded only that he was
joking, and that thereafter he mentioned casually several
times that it would be a good idea. The parties stipulated
that Macklin, who began working when Velders went on
vacation, was a replacement for Velders.
Vaspory testified that, when Kabe was in his work area
on Tuesday, February 10, he asked if Velders was
discharged or on vacation, and Kabe said Velders "was let
go"; that he asked whether this was as a result of Velders'
union activity; and that Kabe did not reply, but mentioned
some of Tynan's business problems, and finally said
Velders was a bad influence on Vaspory, that Vaspory had
changed since he became close to Velders.
Velders testified that Vaspory had called and said he
understood Velders "was let go," that he asked Vaspory to
check, and that Vaspory called again to say that Kabe had
confirmed the report. Velders testified that he went to the
shop on Tuesday and told Kabe he heard he "was let go,"
and Kabe replied that he had told him so the previous
Friday; that he denied this, and said Kabe had suggested
he take unemployment; and that on leaving the office,
Macklin said, in answer to his question, that Macklin was
hired on Thursday, February 5, to begin working on
Monday. Velders told Macklin several employees had
signed cards in an attempt to get the Union into the shop.
Velders then put some of his tools that he was able to carry
in his car, and Macklin promised to bring the rest in
Macklin's truck. Velders had removed none of his tools
before this, and had not applied for unemployment.
Velders testified he never received any warnings, verbal or
written, about his work or conduct while employed by the
Respondent.
Macklin testified that he began work on February 9. He
applied a few days before that and was introduced by
Clark to Kabe, who promised to let him know. Kabe called
the next day, asked him to come in to discuss salary, and
hired him after they agreed on a salary lower than Macklin
originally requested. Macklin testified that Kabe said he
was taking the place of another man who was "a trouble
maker" and was "given a permanent vacation" because of
"Some kind of Union business."
Kabe, who has been the Respondent's service manager
for about a year, testified that he terminated Velders "for
his decreasing productivity and for his increasingly poor
attitude toward his work"; that "I observed what I now
describe, you know, in continuing increments since
probably the latter part of November"; that Velders
worked "at par" from the time Kabe began in April until
November; that the incident that triggered the discharge
was Velders' request on a Friday afternoon, just before
quitting time, with no prior notice, "to take, in his words, a
couple of weeks off, beginning - not the following
Monday - but the Monday after that"; that he told
Velders that was not "very much notice" but he would see
what he could do; and that he decided over the weekend
484
TOWNE CHEVROLET
this showed Velders did not want to work any more, and at
a management meeting "mentioned . . . in passing" that
Velders asked for a vacation and he intended to replace
Velders "if somebody else would come along, you know, as
a replacement." Kabe further testified that Macklin was
referred to him by Clark; that he interviewed Macklin on
February 4, and called and had Macklin come in the next
day to discuss salary; and that he hired Macklin when they
agreed on salary, to begin on Monday as he had by then
finalized his decision to terminate Velders. Kabe denied
that he told Macklin who was being replaced, or mentioned
Velders or the Union. Kabe gave as another reason for the
discharge that Velders asked about six times over a period
of about 2 months to be laid off, and gave various reasons
such as getting too old or making more money working in
his own garage. Kabe admitted he did not accept the
suggestion at these times.
Kabe testified that Velders had many work deficiencies
and took longer than others to do jobs despite Velders'
experience. He cited as one of the incidents of poor work
by Velders replacing a clutch unnecessarily about 2 weeks
before the termination. It had to be removed later and the
old one replaced. Kabe testified that he asked why Velders
replaced a clutch unnecessarily; that Velders replied only
"I don't know"; and that "I said 'It's sure costing us a lot of
money.' And I dropped the subject. There was no point in
my mind to continue a debate." Kabe described another
incident as a valve job on a new vehicle, which Velders said
the car needed and "which I agreed with," but the problem
continued and the car was "still out there." Kabe testified
that when he asked why Velders did not say "there is
nothing wrong here before putting it all back together ...
His reponse was this same kind of blank I-don't-know
attitude." Kabe testified that Velders' mistakes cost the
Respondent a total of $300, that mistakes of other
employees have cost money but not that much, but that no
one ever asked him to account for the $300. Kabe' also
testified that, while he never reduced these infractions of
Velders to writing, he spoke to Velders about them, and he
may have mentioned them "in passing" at a management
meeting, but he did not recall ever mentioning this matter
to Tynan.
Kabe testified as to the termination that he called
Velders into the conference room and "exchanged ameni-
ties"; that "I spoke to him about his productivity ... and
his lack of attitude toward his work. I also reminded him of
his previous request to be laid off, in his words. And I
informed him that, you know, I had made the decision
that, effective that day, that evening or that time, that I had
in fact decided to lay him off"; that Velders explained the
situation at home had changed as his wife was ill; that
Kabe expressed sympathy but "I reiterated that the
decision had been made"; that "I believe I told Mr. Velders
that, you know, on the completion of his vacation, et cetera
- because we had paid him for a week's vacation in that
day's check - that, you know, he would - I asked him if
he would call me and, if things were different, that perhaps
we could consider, you know, re-employment." Kabe
testified that he never specifically said Velders could go on
vacation, but checked with Langhurst how much leave was
due Velders and had the vacation check drawn because he
knew Velders wanted it; that he understood Velders would
take a vacation whether or not he approved it, but that it
was his decision how much time off Velders could take;
and that he observed that Velders left on February 6
without any of his tools.
Kabe testified that Vaspory sometime after that asked
what happened to Velders, and "I explained to Mr.
Vaspory that I had laid him off.. . I specifically did not
mention anything about a union. I cannot honestly recall
whether Mr. Vaspory did, although I don't think so." Kabe
testified, as to Velders' visit to the shop on Tuesday, that
"He said hello. And I greeted him back. And he said to me,
'Is it true that I'm laid off?' And I said, 'Yes, you are.' And
I reminded him of our conversation of that previous
Friday. And he said 'Okay,' and he walked out of the
shop." Kabe testified that there was, at the time Velders
was terminated, a normal flow of business, with appoint-
ments booked a week or two ahead, but that there were no
records of these appointments as they are discarded at the
end of each day, and that he was "sure they have a
cumulative monthly total of production of the service
department in different areas, but . . . I certainly don't
maintain a record of that."
Tynan testified that Velders, when hired in about 1972,
said he had left his previous job because the shop was
organized and he would not permit a union to tell him
where he could hang his toolbox. Tynan also testified that
Kabe terminated Velders on February 6; that it was Kabe's
decision but he knew of it a day or two before; that Kabe
made the decision sometime during the week of the
termination; and that the termination "was for cause ...
productivity . . . for one thing, he had asked to be laid
off." He admitted he did not know specifically what the
productivity situation was, but Kabe told him "that was
one of the reasons that he laid him off." Tynan also
testified, on cross-examination by the General Counsel,
that Kabe had long wanted to replace Velders, then that
Velders' discharge was discussed, prior to the week of the
discharge, only in regard to Velders' request to be laid off,
and that Kabe never discussed with him prior to that week
the replacement or discharge of Velders. Tynan was not
able to recall any other shop employee who was ever
discharged for cause, or any shop employee who was ever
discharged by Kabe, or any termination for any reason in
1975.
I find, based upon their demeanor and the nature of their
testimony, that Velders and Macklin were more forthright
and trustworthy witnesses than Kabe and Tynan, and,
therefore, I credit their testimony where it is in conflict
with that of Kabe and Tynan. On the basis of the credited
testimony, the vague and shifting reasons asserted by the
Respondent for the discharge of its senior mechanic and
the vague and shifting testimony as to when it was decided
to terminate Velders, the timing of the discharge shortly
after Velders initiated and played a leading role in the
organization of the Union, Kabe's remarks to Macklin
about giving a permanent vacation to a "trouble maker"
because of "Union business," and the record in its entirety,
I conclude and find that the Respondent discharged
Velders on February 6 because of his membership in and
activities on behalf of the Union, and in order to
485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discourage activities on behalf of the Union, and thereby
discriminated against employees in regard to their hire or
tenure of employment, in violation of Section 8(aX3) and
(1) of the Act.6 I find further that Kabe, by his remarks to
Macklin that the employee Macklin was replacing was "a
trouble maker" and was "given a permanent vacation"
because of "Union business," thereby confirmed that
Velders was discriminatorily discharged, and further
interfered with, restrained, and coerced employees in the
exercise of their Section 7 rights, in further violation of
Section 8(a)(1) of the Act.7
2. Layoff of Bijas
Bijas testified that he was called to the office just before 5
o'clock on Thursday, February 12, where Kabe told him he
was laid off; that when he asked why, Kabe said there was
a slowdown in the work; that he pointed out there were 7
new cars and 5 used cars, more than the average, to be
prepared the next day, but Kabe said he knew nothing
about that; and that Kabe also said the layoff was until
things picked up again but there was no objection to his
looking for another job. Bijas, who was 19 at the time of the
hearing, was hired in August 1975, as a third man on the
crew preparing cars, at $2.50 an hour, and went to $2.75 in
2 weeks. He never received a reprimand or warning. He
testified that he worked on 10-15 cars a week; that, at the
time of his layoff, about 65 percent of the cars on the lot
were not prepared; and that there was not much difference
in the volume of work for a period of months before his
layoff. Bijas in early January talked in favor of union
organization with several shop employees. He attended the
January 22 organizing meeting and signed a card. Thereaf-
ter he continued his prounion conversations with employ-
ees at the shop, questioned Jones and Seward about their
failure to attend the organizing meeting, and solicited
Jones' signature to a union card. Giannini, found above to
be a supervisor, asked Bijas about the union activities.
And, as found above, Clark questioned him about the
union activities, and reported to Tynan the job complaints
voiced by Bijas just before the shop meeting. On the basis
of the record as a whole, I do not credit the denials of Clark
and Tynan that Clark mentioned the name of Bijas in
reporting the complaints. Moreover, Bijas, who was greeted
by Tynan at the shop meeting as one of the two newer
employees, spoke up at the meeting about several of the
employee complaints. He was laid off about 2 weeks later,
about a week after the discharge of Velders.
Clark keeps in a notebook a handwritten daily log of
new- and used-car sales. The used-car manager also writes
in this log, and trade-ins. are listed in it, but no dollar
values of the cars sold or the trade-ins. Clark testified that
the log is the only record of sales the Respondent has; that
it shows orders written, not deliveries, which may take 3
months if ordered from the factory as about 30 percent of
new cars are; that the factory sends notice of shipping
dates but he had none with him; and that some cars are
prepared not for delivery but to be placed on the lot. He
also testified that in August 1975, when Bijas was hired, the
a Carbide Tools, Incorporated 205 NLRB 318 (1973); Board Ford Inc.,
222 NLRB 922; W & W Tool & Die Manufacturing Co., 225 NLRB 1000
(1976).
sales were "high" and averaged 80-85 a month, and at
another point that the sales were 80-95 then, but that the
financial statement or a log showing this were not in the
hearing room.8 He testified that "high" sales mean about
20 a week or 80 a month, then that sales fluctuate weekly as
well as monthly and that 80 a month would be "fair." Clark
testified at one point that sales were "quite high" in
January, and those cars would possibly be delivered in
February depending on whether they were in stock or on
order, but, at another point, that the log showed a decrease
in January-February, and that, at the weekly management
meeting on February 9, Tynan said that, if the sales rate
continued, it would be necessary to lay off a man to reduce
overhead; Tynan would make a constant check of sales;
and Bijas would have to be the one to go as the other two
men on this work had been there many years. No warning
of possible layoff was given Bijas. Clark testified that
Tynan did make frequent checks with him on sales, that
Tynan decided to lay off Bijas, and that he assumed Kabe
told Bijas of the layoff.
Clark testified, on cross-examination by the General
Counsel, that Bijas, on the day of the layoff, came to tell
him of the layoff, and that:
A. I said I didn't know anything about it. I would
check and see if it was - what the circumstances were.
Q. Okay. Did he tell you why he was laid off?
A. No, he did not.
Q. Did he say anything about the business being
slow or anytning?
A. The conversation took ten seconds. He said he
was laid off.
Q. The question is, did he tell you in that
conversation that he was told in turn by someone else
from management that he was being laid off because
business is slow?
A. He said he was laid off temporarily.
Q. Okay. But did he say anything about he was laid
off because business is slower or things is slow or
anything substantively -
A. He said he was laid off temporarily.
Q. My question is, yes or no, did he say anything to
the effect that he had been laid off - he had been told
he had been laid off by Mr. Kabe or Mr. Tynan
because business is slow?
A. Yes, he did.
Q. What did you respond to that, if anything?
A. He said he was laid off because business is slow,
but they told him it was only temporary, and I said, call
me tomorrow and I'll find out, you know -
Q. Find out what -
A. I'll find out if it is temporary, and then - if it's
temporary.
Q. Isn't it a fact that he told you that he was laid
off, Mr. Tynan told him he was laid off - either Mr.
Tynan or Mr. Kabe told him he was laid off because
business is slow and you said you knew nothing about
that?
? Carbide Tools, supra, W & W Tool d Die Mf& Co., spura
s It was stipulated by the parties that Clark's pretrial affidavit states that
81 cars were sold in August 1975.
486
TOWNE CHEVROLET
A. No.
Q. Are you sure of that?
A. I didn't say. The conversation took seconds.
Q. ... You mentioned something about checking
with Tynan.
A. He came - Mr. Bijas came to me, said he was
laid off temporarily because business is slow. I said, call
me tomorrow and I'll just tell you what the situation
looks like.
Q. Okay. And it is your testimony that you said
nothing to him about not knowing anything about the
slowness of the business?
A. We never discussed it.
At another point, Clark testified that he told Bijas he would
check with Tynan how many sales were needed to get Bijas
rehired; that he checked this but did not report to Bijas
because Bijas was to call him and never did; and that
Tynan said they had to get to the point of too many cars
for two men to handle, as was the situation when Bijas was
hired.
Tynan testified that he has kept sales records in the past
but had none at the hearing. He also testified that, because
the rate of sales in early February was poor, he announced
at the weekly management meeting on February 9 that it
was necessary to cut personnel in order to reduce overhead,
that there were more people than needed in the prep
department, that Bijas' output was probably equal to that
of the other two but Bijas was junior to them by many
years, and that Bijas would go unless sales increased that
week. He also testified that sales did not increase, that he
told Kabe on Thursday, February 12, to lay off Bijas for
lack of work, that he had the office prepare the paycheck
for Bijas through Thursday, and that he did not wait until
payday on Friday because there was insufficient work for
the three people, based on sales reports of Clark and Kabe,
although he admitted a car ordered was not necessarily
prepared right away but might be done months later.
Bijas testified that he received a telephone call after his
layoff from Sofield, who told him of the strike and invited
him to picket, and that he began that afternoon picketing 6
days a week. On February 23, Tynan sent Bijas a written
offer of reinstatement.
As set forth above, I found Bijas a more credible witness
than Clark. I likewise found him more credible than Kabe,
who was an evasive and unconvincing witness and whose
testimony is replete with the inconsistencies and improba-
bilities. I find, based upon the credited testimony and the
entire record, that Bijas was laid off, without warning, on
the day before payday; that he was laid off about 2 weeks
after his prounion sentiments became known and his
complaints had resulted in the January 28 shop meeting,
and about a week after Velders was discriminatorily
discharged; and that the Respondent's testimony and
records placed in evidence do not show that it laid off Bijas
because of a slowdown in work a few days after Velders
assertedly caused great concern by asking for a vacation
when his services were needed, and during a period when,
the record shows, employees were being hired. It is
apparent from the record as a whole, and I find, that the
Respondent laid off Bijas on February 12 not for economic
considerations but because of his membership in and
activities on behalf of the Union, and in order to
discourage activities on behalf of the Union, and thereby
violated Section 8(aX3) and (1) of the Act.9
E. The Strike
I. The causes of the strike
On February 16, after the discharge of Velders and the
layoff of Bijas, Sofield went to the Respondent's shop,
accompanied at his request by Velders. Sofield identified
himself to Kabe, who stated that Tynan was not yet in and
Sofield could not wait in the service department. Sofield
went out, and returned in about 20 minutes when Tynan
was there. According to Sofield, he told Tynan he was
there to represent the service department employees, and
gave Tynan his business card and the five signed union
cards; Tynan screamed that he was to get out of the shop;
he requested that they talk as gentlemen as both of them
walked into the manager's office; in their very brief
discussion he mentioned Velders being let go but Tynan
did not comment on that; Tynan sat down at the
manager's desk and thumbed through the cards but, when
he sat down, Tynan said he had not been given permission
to sit down and ordered him out of the office; and he asked
as he left if it meant the employees represented were also
thrown out, and Tynan replied, "if that is what it means,
that is what it means." Sofield testified further that he then
went out to the shop where Vaspory and Rohloff were
standing, and "I said to them that your Employer refuses to
discuss this with me and on the basis of him letting a
couple of employees go I think that we should strike"; that
when they closed their toolboxes and were walking out
with him, Tynan was ordering him to get out and telling
the manager to call the police to have him thrown out; and
that he told Tynan that was not necessary as he was
leaving.
As the group was leaving the shop, Macklin was driving
up to go to work. One of the men identified Macklin to
Sofield, who walked over to talk to Macklin at the driver's
window of the car. At that point Tynan, a much larger man
than Sofield, pushed his way between Sofield and the car.
Sofield testified that Tynan shouted that Macklin did not
have to listen to Sofield; that he said that was true, but
Macklin had a right to participate in union activities
without being coerced and could, if Macklin wished, join
the strike line; and that he and the two employees went to
the nearby bowling alley parking lot. Macklin followed
them in his car, signed a card Vaspory had handed him
while walking out, and joined the strikers. Later that day
Bouchet and Bijas joined the strikers. Sofield gave the men
picket signs and instructions. The men picketed in shifts for
6 days a week for a period, but later Sofield hired some
pickets so these strikers could seek other jobs. The strike
was still in progress at the time of the hearing.
Tynan testified that on February 16 he was called by
Kabe or Langhurst out of a meeting of salesmen, held
9 Carbide Tools, supra; W & W Tool & Die Mfg Co., supra.
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
every morning, and met Sofield, who introduced himself;
that "I believe he gave me a business card. And he said he
represented my employees for, I forget his language,
exactly, for purpose of collective bargaining or whatever,
and he wanted to talk to me. I believe I said I don't believe
that that's the case. .... He thrust some cards, signature
cards as they turned out to be, I know now, into my hand,
and he said these are proof he represents these people. I
asked him to take the cards back and leave.... He
wouldn't leave. He didn't take the cards back either. I said
if he didn't leave I was going to call the police and have
him removed.... At that point I was still holding the
cards. .... When he wouldn't leave I walked toward the
office. My intention was to get to a phone and call the
police. .... The last I saw of the cards I threw them on the
desk. That's the last I saw of the cards. He picked them up,
put them in his pocket and finally did leave. . . . I looked
at the cards. I did not thumb through them as was testified
before. I couldn't even read the top card, frankly. We had
some further discussion, and I was still holding the cards,
as I recall, in the office. .... Mr. Sofield did not leave in
any great hurry and that precipitated further argumenta-
tion about his leaving. As I recall, when he was leaving he
took several employees with him."
Tynan testified further, regarding the Macklin incident,
that Vaspory introduced Macklin to Sofield, and "Mr.
Sofield verbally solicited him to join the group. .... I said
to Mr. Macklin, you do not have to go with them, I would
like you to go to work. Mr. Macklin remained in the car for
some time, talking to Mr. Sofield. Mr. Sofield is a very
small man." Tynan also testified that he first learned the
employees were engaging in union activity when Sofield
came to see him on February 16.
I credit Sofield's testimony, corroborated in large part by
that of Tynan as well as of the employees who were
present. I find, on all the relevant evidence, that Tynan, by
refusing to talk to Sofield about the employee terminations,
found above to be violative of Section 8(a)(3) and (1) of the
Act, by refusing, in fact, to talk to Sofield about anything,
and by shouting at Sofield, in the presence of employees
who had designated the Union as their representative, to
get out of the shop and threatening to call the police to
eject Sofield, interfered with, restrained, and coerced
employees in the exercise of their Section 7 rights, and
thereby violated Section 8(aXI) of the Act. I find further
that the strike was caused by this unlawful conduct of
Tynan and was, therefore, an unfair labor practice strike.
2. Respondent's letters to strikers
During the strike Tynan sent to both Velders and Bijas
written offers, dated February 23, of recall "to your former
position from layoff." On March 9 Tynan sent Macklin a
letter stating that as of that date Macklin had been
permanently replaced as an employee. Tynan also had
Langhurst send Bouchet and some others - Langhurst
could not recall the names but only that they were "Service
personnel" - letters stating that the Respondent would
discontinue making payments on the insurance policies of
'o ITT Henze Valve Service, 166 NLRB 592 (1967), enfd. 435 F.2d 1308
(C.A. 5, 1968); Courtesy Volkswagen, Inc., 200 NLRB 84, 95 (1972).
the striking employees. One of the employee benefits
Tynan had described to the employees at the shop meeting
was the insurance that was paid for entirely by the
Respondent.
Velders and Bijas did not accept the Respondent's offers
of reinstatement, but continued to participate in the strike.
I find that their status changed from that of discriminatori-
ly terminated employees to that of unfair labor practice
strikers. I also find that the letter notifying Macklin, an
unfair labor practice striker, that he had been permanently
replaced was violative of Section 8(aX3) and (1) of the
Act.10 There is no evidence that Macklin, but for the letter,
would have sought reinstatement during the strike. I find
that Macklin's status continued to be that of an unfair
labor practice striker, and that Macklin and the other
unfair labor practice strikers are entitled to reinstatement
upon application, and to the discharge, if necessary, of
replacements hired since the strike began." I also find that
the strikers' status as employees entitled them to have the
insurance policy, paid for by the Respondent on behalf of
its employees, continued on their behalf.
F. The Refiusal To Bargain
1. The appropriate unit
The complaint alleges, the parties agree, and I find that
all service and parts department employees at the Respon-
dent's Middletown place of business, excluding all office
clerical employees, professional employees, guards, sales-
men, and all supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining.
The General Counsel maintains that there were 11
employees in the unit: Bouchet, Bijas, Velders, Macklin,
Rohloff, Vaspory, Seward, Jones, Fink, Parzick, and Fair.
The Respondent asserts in its brief that "Respondent's
total work complement was ten (10) employees and never,
during the periods in question, exceeded this number," as
Velders was replaced by Macklin on the same job. The
Respondent urges the exclusion of Bouchet on the ground
he was not an employee but a student-learner, of Bijas on
the ground he was on economic layoff, of Velders on the
ground he had been discharged, and of Macklin in the
event Velders is ordered reinstated on the ground Macklin
was hired as a replacement for Velders.
Bouchet was hired by Kabe as a mechanic in October
1975. He was under 18, but was employed under a program
whereby he worked and attended school part time. He
worked from 1-5 p.m. and all day when school was not in
session. Kabe testified Bouchet was hired as an additional
mechanic, not a replacement, and that he complimented
Bouchet's work and said he would' like to have Bouchet
continue with the Respondent when school was finished.
Bouchet attended the union organizing meeting, signed a
card, and went on strike on February 16. During the strike,
he received the letter from Tynan stating that the
Respondent's payments on his insurance policy would be
discontinued. I find that Bouchet was a regular part-time
employee, with a prospect of being offered a full-time job
l Mastro Plastics Corp. v. N. LR.B., 350 U.S. 270 (1954).
488
TOWNE CHEVROLET
upon completion of his school work, and that he was
eligible for inclusion in the unit. 2
I have found above that Velders was discriminatorily
discharged and Bijas was discriminatorily laid off by the
Respondent. Both are therefore eligible for inclusion in the
unit. I shall also, in all the circumstances of this case,
include Macklin on the basis of his status as an unfair labor
practice striker. If the Respondent thereupon has more
employees than are necessary, it may reduce the number
on a nondiscriminatory basis.
The General Counsel and the Respondent were in
agreement that Fair and Parzeck should be included in the
unit whereas the Charging Party, at the hearing and in its
brief, urges their exclusion as managerial employees. There
was some interrogation of witnesses at the hearing
regarding the status of these two individuals, but all the
parties agreed to a resolution of this unit question on the
basis of a description of their duties consisting of relevant
excerpts from their pretrial affidavits, which the parties
agreed were accurate.
The agreed facts show that Fair, the parts manager, is the
only individual in the parts department, although Tynan
advised him, when he was hired on January 26, that there
was a possibility others might be hired if the operations
expanded. Fair reports directly to Tynan, does not punch a
timeclock, receives a salary of about $200 a week and is not
paid for overtime, and attends the monthly management
meetings but has no access to information relating to the
Respondent's labor relations. Fair orders parts from
General Motors, his only supplier, without clearance by
any superior, but based on replacement of parts taken out
of inventory in the preceding month as determined by
means of an inventory control system. He cannot sign
checks but can sign purchase orders and does not know of
any dollar limit to the size of the purchase orders he can
sign. Fair works the same hours and wears the same
uniforms as the shop employees and receives the same job
benefits except that he has in addition access to a company
car for business and personal use.
Parzeck, the service writer, was also hired on January 26.
He receives a base salary of $120 a week plus a commission
of 4 percent on all service orders he writes. His job duties
include arranging for subleased work performed by outside
contractors and writing repair orders which he assigns to
particular mechanics depending on the skill required by the
job. Parzeck, who works under the supervision of Kabe,
also, in Kabe's absence, hands repair orders to mechanics,
regulates the day's work in the service department, and
handles departmental customer problems. Parzeck is
responsible for security in the department, which involves
checking that doors are locked and machines turned off at
night. He has no authority to hire, discharge, or change any
employee's status, or effectively to recommend such action,
and no authority to discipline or reprimand a mechanic,
but would report to Kabe if a mechanic refused to do work
he assigned. He does not check the accuracy or quality of
the work done by the mechanics, but checks service orders
to determine that all the work was done. If not, he so
12 W WTool & Die Mfg Co., supra.
13 G. K. Chevrolet, Inc., 176 NLRB 416 (1969); Gnrimaldi Buick-Opel, Inc.,
202 NLRB 436, 442 (1973): Bechtel, Incorporated 225 NLRB 197 (1976).
advises the mechanic and, if this were to occur repeatedly,
would advise Kabe of it. Parzeck has no authority to sign
checks but has signed purchase orders up to $250 for parts
and labor for radio installation. He does not know of any
dollar limits on purchase orders he can sign, but cannot
sign without prior authority.
I find, based upon the agreed statement of facts and the
entire record, that Fair and Parzeck play no role in the
formulation or determination of the Respondent's policies,
exercise judgment and discretion in the performance of
their duties only within prescribed limits and on routine
matters, and have authority to pledge the Respondent's
credit only to a limited extent and in a circumscribed
manner. I find, therefore, that they are rank-and-file, not
managerial, employees and shall include them in the unit
of service and parts department employees.'3
2. The Union's representative status
The Union received signed cards from five unit employ-
ees on January 22, and a sixth card on February 16
immediately after the strike began. The Union therefore, as
of the time Macklin signed his card on February 16,
represented a majority of the 11 employees in the unit
found appropriate.
3. The refusal to bargain
Sofield on the morning of February 16 told Tynan that
the Union claimed to represent the Respondent's employ-
ees in an appropriate unit, handed over five signed union
cards, and requested recognition. Sofield also attempted to
discuss the issues regarding the terminated employees.
Tynan, however, refused to discuss anything with Sofield,
shouted at Sofield to get out, and threatened to have the
police force Sofield to leave. Sofield thereupon suggested to
two of the unit employees who were present that they go on
strike. As they were walking out, Sofield and Tynan spoke
to Macklin, who was arriving at that time, and who, despite
Tynan's urging that he go to work, joined the strike and
signed a union card. I find, therefore, on the evidence in its
entirety, that the Union represented a majority of unit
employees when the strike began and while Tynan was in
the act of rejecting Sofield's request for recognition; that
Tynan was aware of the Union's representative status on
the basis of the cards handed to him, of Macklin's joining
in the union activity, and of the number of striking
employees picketing the Respondent's premises; and that,
by Tynan's refusal on February 16 and at all times
thereafter to recognize and bargain collectively in good
faith with the Union, the Respondent has refused to
bargain collectively with the duly designated representative
of a majority of its employees in an appropriate unit, in
violation of Section 8(aX5) and (1) of the Act.14
14 Sec Scott Gross Company, Inc., 197 NLRB 420 (1972), enfd. 477 F.2d
64 (C.A. 6, 1973).
489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find further that the Respondent became aware of its
employees were engaging in union organizing activities
soon after the initiation of the union campaign,' 5 and that
it promptly embarked upon a course of unfair labor
practices, including interrogation, solicitation of com-
plaints, telling employees that an employee was terminated
because of his union activities, promises and grants of
benefits, unlawful discharge of the leader in the union
organizing activity and unlawful layoff of an active
proponent of the Union, and refusal to recognize and
bargain with the Union as the duly designated representa-
tive of the employees in the unit, that were sufficiently
pervasive and extensive in character to have precluded the
holding of a fair election and to have undermined the
Union's designation by a majority of the unit employees.
Accordingly, I find that it is appropriate, in all the relevant
circumstances, to determine the Union's representative
status on the basis of the membership cards which the
employees executed and, as these cards establish that the
Union was designated by a majority of the unit employees,
that a bargaining order on this basis is warranted. 16 I shall,
accordingly, recommend that the Respondent be ordered
to bargain collectively with the Union, upon request, as the
representative of its service and parts department employ-
ees as of February 16, 1976.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(1),
(3), and (5) of the Act, I shall recommend that the
Respondent be ordered to cease and desist therefrom and
from in any other manner infringing upon its employees'
Section 7 rights,17 and to take certain affirmative action
designed to effectuate the policies of the Act. I shall also
recommend that nothing contained in the recommended
order shall be construed as requiring the Respondent to
revoke any employee benefits previously granted.
I have found that the Respondent discriminated against
Velders on February 6, Bijas on February 12, and Macklin
on March 9, 1976, in regard to their hire or tenure of
employment, in order to discourage membership in or
activities on behalf of the Union, in violation of Section
8(aX3) and (1) of the Act.' 8 I have also found that all three
and certain other employees of the Respondent were
1' N.L.R.B. v. Columbia University, 541 F.2d 922 (C.A. 2, 1976), citing
Wiese Plow Welding Co., Inc., 123 NLRB 616(1959).
16 N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969); Scott Gross
Corn mpany, Inc., 197 NLRB 420 (1972), enfd. 477 F.2d 64 (C.A. 6, 1973);
Trading Port, Inc., 219 NLRB 298 (1975); Surface Industries, InIc., supra W
& W Tool & Die Mfg. Co., supra.
17 N.L.R.B. v. Fxpress Publishing Company, 312 U.S. 416, 437; N.LR.B.
v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941).
engaged in an unfair labor practice strike that began on
February 16, 1976. I also found that the Respondent
offered reinstatement to Velders and Bijas, that they
continued on strike, that their status became that of unfair
labor practice strikers, and that Macklin's status continued
to be that of an unfair labor practice striker. I shall
therefore recommend that the Respondent be ordered to
make Velders and Bijas whole for any loss of pay suffered
as a result of the discrimination against them to the date
they were offered reinstatement; to offer all the striking
employees, upon application, reinstatement to their former
jobs, or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, discharging, if necessary, any
replacements hired on or after they went on strike; and to
make each of the striking employees whole for any loss of
earnings he may suffer by reason of the Respondent's
failure, if any, to reinstate him within 5 days after the date
on which he applies for reinstatement to the date of the
Respondent's offer of reinstatement, by payment to each of
them of a sum of money equal to the amount he normally
would have earned during said period, less his net earnings,
if any, during such period', with backpay computed on a
quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). The Respondent shall be required also to restore
the insurance payments it discriminatorily discontinued on
behalf of striking employees.20
I have also found that the Respondent unlawfully
refused to bargain with the Union as the exclusive
representative of its employees in an appropriate unit. I
shall therefore recommend that it be ordered to bargain
collectively with the Union, upon request, concerning rates
of pay, wages, hours, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Towne Chevrolet, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Amalgamated Local Union 355, Autoworkers of
New Jersey, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interrogating employees about union activities,
soliciting employee complaints, promising and granting
improved conditions of employment, telling employees that
an employee had been terminated because of his union
activities, in order to discourage union membership or
activities, and by other conduct interfering with, restrain-
ing, and coercing its employees in the exercise of their
is See Herb Arthur, Inc., d/b/a Custom Carpet Installations, 225 NLRB
1036(1976).
19 Bush Hog, Inc., 176 NLRB 815 (1969); Davis & Hemphill, Inc., 177
NLRB 282 (1969).
20 Crown Zellerbach Corp., supra.
490
TOWNE CHEVROLET
Section 7 rights, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(aX 1) of the Act.
4. By terminating Velders, Bijas, and Macklin in order
to discourage union membership or activities, the Respon-
dent has discriminated against employees in regard to their
hire and tenure of employment and has thereby engaged in
unfair labor practices within the meaning of Section 8(aX3)
and (1) of the Act.
5. All the service and parts department employees at
the Respondent's Middletown, New Jersey, place of
business, excluding all office clerical employees, profes-
sional employees, guards, salesmen, and all supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
6. At all times since February 16, 1976, Amalgamated
Local Union 355, Autoworkers of New Jersey, has
represented a majority of the employees in the aforesaid
appropriate unit within the meaning of Section 9(a) of the
Act.
7. By refusing to bargain collectively with Amalga-
mated Local Union 355, Autoworkers of New Jersey, on
February 16, 1976, and thereafter, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)5) and (1) of the Act.
8. 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, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 21
The Respondent, Towne Chevrolet, Middletown, New
Jersey, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Interrogating employees about their union activities,
soliciting employee complaints, promising and granting
improved conditions of employment, telling employees that
an employee had been terminated because of his union
activities, in order to discourage union membership or
activities, or in any other manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, except that
nothing contained herein shall be construed as requiring
the Respondent to revoke any employee benefits previous-
ly granted.
(b) Discharging, laying off, or otherwise discriminating
against any employees in regard to their hire or tenure of
employment, in order to discourage membership in or
activities on behalf of Amalgamated Local Union 355,
Autoworkers of New Jersey, or any other labor organiza-
tion.
21 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.
(c) Refusing to bargain collectively with Amalgamated
Local Union 355, Autoworkers of New Jersey, as the
exclusive collective-bargaining representative of its em-
ployees in the unit found appropriate herein.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Make Velders and Bijas whole for any loss of pay
each of them may have suffered as a result of the
Respondent's discrimination against him to the date they
were offered reinstatement; offer the employees who have
been engaged in an unfair labor practice strike that began
on February 16, 1976, upon application, reinstatement to
their former jobs, or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, discharging, if
necessary, any replacements hired since they went on
strike; and make each of the striking employees whole for
any loss of earnings they may suffer by reason of the
Respondent's failure, if any, to reinstate them, upon
application, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Restore insurance payments that were discriminatori-
ly discontinued on behalf of striking employees.
(c) 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 amounts of backpay due under the
terms of this recommended Order.
(d) Upon request, bargain collectively with Amalga-
mated Local Union 355, Autoworkers of New Jersey, as
the exclusive representative of the employees in the
appropriate unit with respect to rates of pay, wages, hours,
and other terms and conditions of employment and
embody in a signed agreement any understanding reached.
The bargaining unit is:
All the service and parts department employees at the
Respondent's Middletown, New Jersey, place of busi-
ness, excluding all office clerical employees, profession-
al employees, guards, salesmen, and all supervisors as
defined in the Act.
(e) Post at its place of business in Middletown, New
Jersey, copies of the attached notice marked "Appen-
dix."22 Copies of said notice, on forms provided by the
Regional Director for Region 22, after being duly signed by
the Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
22 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
491