Vanella Buick Opel, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1971

191 N.L.R.B. 805 (N.L.R.B. 1971)

VANELLA BUICK OPEL, INC. 805
Vanella Buick Opel , Inc. and Local 259, United Au-
tomobile Workers, International Union, United
Aubomobile, Aerospace and Agricultural Implement
Workers of America . Cases 22-CA-4204 and 22-
CA-4206
June 30, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On February 17, 1971, Trial Examiner James V.
Constantine issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found that
the Respondent had not engaged in a certain other
unfair labor practice alleged in the complaint and
recommended that that allegation be dismissed. There-
after, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in these cases, and hereby adopts the
findings,' conclusions,2 and recommendations of the
Trial Examiner only to the extent consistent herewith.
Respondent is engaged in selling and servicing au-
tomobiles at Plainfield, New Jersey.' A new facility in
Scotch Plains, New Jersey, about 4 miles from Re-
spondent's present facility, was under construction; at
the time of the hearing, its completion was expected in
February or March 1971. In September 1970, two
unions, the Charging Party (hereafter referred to as
Local 259) and Amalgamated Local Union 355 (here-
after referred to as Local 355) began organizational
campaigns among Respondent's employees. These
campaigns culminated in a consent election on October
8, 1970, in which there were seven votes for Local 259,
' The Trial Examiner found that Lloyd Wallace, Winfred Mallory, and
Ronald Lombardi were discriminatorily discharged Respondent denies that
they were discharged, but admits that they were laid off We find it unneces-
sary to resolve this issue, as it does not affect the outcome of this proceeding.
4 In the absence of exceptions, we adopt pro forma the Trial Examiner's
finding that Napolitano's statement to Ricelli was not violative of Section
8(a)(I) of the Act
' Respondent's correct address is 140 East 5th Street, rather than 145th
Street as inadvertently stated by the Trial Examiner.
191 NLRB No. 107
six votes for Local 355, one vote against both labor
organizations, and two challenged ballots.'
Respondent suffered a considerable decline in busi-
ness in August 1970 because of the shutdown of Buick
plants for the changeover from 1970 to 1971 models.
Business declined further as a result of the General
Motors strike which began on September 14, 1970, and
lasted well into November.' By December Respondent
had only about 15 or 16 employees, about half the
number who had been working in July. This reduction
in force was achieved, in part, by the termination of
seven adherents of Local 259; mechanic Linzie Towns
on September 2, salesman Eliso Lombardi on Septem-
ber 3, salesman Lloyd Wallace and utility man Ronald
Lombardi on September 4, lubrication man Winfred
Mallory on September 18, parts man Paul Ricelli on
October 8, and car polisher Orin Morrison on October
12.
Upon the above facts, we find, in agreement with the
Trial Examiner that Respondent unlawfully dis-
criminated against Linzie Towns, Elsio Lombardi,
Lloyd Wallace, and Ronald Lombardi, who were ter-
minated prior to the commencement of the General
Motors strike. In our view, the alleged economic justifi-
cation for the termination of these employees was
merely a pretext. While everyone was aware in Septem-
ber 1970 that a General Motors strike was possible, it
was also quite possible that such a strike would be
averted at the last minute by agreement on a new con-
tract or that, if any strike occurred, it would be against
some other automobile manufacturer. The mere threat
of a strike hardly warranted laying off employees more
than a week before the strike began.
It is true that Respondent had suffered a substantial
decline in business in August. However, some decline
in August is a normal occurrence in the automobile
industry because of the shutdown of plants for the
annual model changeover, and there is no evidence that
Respondent suffered a greater August decline in 1970
than in the previous years of its existence.6 Since there
is also no reason to believe that sales would not have
' The ballots of Winfred Mallory and Ronald Lombardi, two of the al-
leged discriminatees herein, were challenged on the ground that they had
been discharged prior to the election. As the election was a consent election,
the Trial Examiner severed the representation case and remanded it to the
Regional Director for further processing. Accordingly, the challenges are
not before us for resolution However, as noted above, Respondent now
contends that Mallory and Ronald Lombardi were laid off, rather than
discharged. See fn. 1, supra.
6 The Trial Examiner erroneously stated that the General Motors strike
was over by October 12. As six of the seven alleged discriminatees herein
were terminated prior to October 12, this error does not affect the validity
of the Trial Examiner's findings-as to them. We find, however, that the strike
was still in progress when Morrison was laid off.
6 Respondent contends that the Trial Examiner improperly shifted the
burden of proof on this issue to it. However, Respondent's past experience
with respect to sales in August was a matter peculiarly within its knowledge,
and it failed to produce or explain its failure to produce evidence concerning
what had happened in August in previous years.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
risen again if the General Motors strike had not pre- particularly dubious in view of the, fact that, on the day
vented the arrival of 1971 Buicks, it has not been shown of his termination and on the preceding day, Ronald
that the august decline required layoffs prior to the
commencement of the strike. Accordingly, we find no
economic justification for the termination of Towns,
Wallace, and the two Lombardis in early September.7
In addition , there is ample evidence affirmatively in-
dicating,discrimination against each` of these four in-
dividuals.,,A number of factors have.been.,set forth by
the Trial Examiner-.' We note particularly that, while
Respondent appears to have.-selected employees for
layoff primarily on the basis of seniority, iti.departed
sharply from this practice in laying off Towns, the.most.
senior employee in the repair shop.9 Similarly, salesman
Wallace was terminated although he was at least equal
in seniority to salesman Brown , who was retained, and
Wallace's sales record was considerably better than
Brown's. In addition, Vanella, Respondent's president,
strongly implied to Wallace that he was being ter-
minated because of his union activity; and shortly after
Towns was laid off, one day after signing a card for
Local 259, Vanella said, in response to a question by
Towns, that he did not know the reason for the layoff
but would have to check into it. If the layoff had been
for economic reasons, Respondent's president would
presumably have been aware of this fact, and would
have had no reason not to say so. For these reasons, we
adopt the Trial Examiner's findings and recommenda-
tions as to Towns and Wallace."
Eliso Lombardi was the leader in Local 259's organi-
zational campaign , and Respondent knew this, as Gen-
eral Manager Heller received a call from a union repre-
sentative which was intended for Lombardi. A few days
after receiving this call, Heller laid off' Lombardi, im-
plying that Vanella had concluded that either he or
Wallace was responsible for the union activity and in-
dicating that Lombardi's son, Ronald, would not be
able to remain with Respondent under these condi-
tions. This prediction proved accurate; Ronald- Lom-
bardi was terminated the very next day. The contention
that this termination was due to lack of work seems
' Respondent contends that the Trial Examiner improperly refused to
allow testimony indicating that it would need fewer employees at its new
location, which was under construction. Assuming that this were true, it
would not justify layoffs 5 or 6 months before the new facility was scheduled
to open.
,
We do not rely on the Trial Examiner's statement that only supporters
of Local 259 were laid off. The record shows that, in addition to the seven
alleged discrimmatees, employees Kaliner and Wolenski were laid off, and
there is no evidence that they supported Local 259 Nor do we rely on the
abruptness of the terminations , since it seems clear that all terminations,
including that of Sales Manager Heller , were abrupt
' For reasons stated by the Trial Examiner, we conclude, contrary to
Respondent 's contention , that Towns was not a supervisor
10 Respondent contends that, after the hearing in the instant case, it
offered reinstatement to Towns, Wallace, and Eliso Lombardi, and that
Wallace accepted, Lombardi declined, and Towns accepted but did not
report for work As the record does not indicate whether valid offers of
reinstatement were in fact made, we shall leave this question fqr resolution
at the compliance stage of this proceeding
Lombardi had been instructed to report for work at 8
a.m., rather than his normal starting hour of noon,
because he was needed, and that he had also been told
that he would be needed at 8 a.m. the following week.
Accordingly, we conclude that both Lombardis were
terminated in retaliation for the father's union activity.
We note, however, that Eliso Lombardi had the least
seniority of the four salesmen , having worked for. Re-
spondent only a little over 2 months, and that his sales
record was considerably, inferior, to that of 'the other
salesmen.. His son; Ronald, had, also ^ worked for Re-
spondent for only a short `time, and 'his position;,that
of.a-,utility,,man;,was one.which' General Motors=had
advised its dealers to,eliTainate first,if,cutbacks were..
needed. It seems probable; therefore, tbatfeven.in the-
absence of discrimination both Lombardis would have-
been laid off shortly after the commencement of the
General Motors strike. Accordingly, we award them
backpay only until the dates when they would have
been laid off for nondiscriminatory reasons , and, as
there is no contention that Respondent unlawfully
failed to recall them, we do not order Respondent to
offer them reinstatement. Since the cutoff dates cannot
be precisely determined from the present record, we
leave their determination to the compliance stage of
this proceeding.
However, we find, contrary to the Trial Examiner,
that Respondent did not violate Section 8(a)(3) and (1)
of the Act by terminating Paul Ricelli, Orin Morrison,
and Winfred Mallory. These three individuals were ter-
minated during the strike," which clearly had a sub-
stantial adverse impact on Respondent's business, and
there was economic justification for the layoff and for
selecting each of them. Ricelli was the least senior em-
ployee in the parts department whose volume of busi-
ness in October was down almost one-third from its
July level; he had worked for Respondent only since
August. Mallory had been hired in July, and was Re-
spondent's only lubrication man. He had a guaranteed
salary of $100 per week, and only once was he able to
earn this amount of money by doing lubrication work
alone. For this reason, he was assigned to do' mechani-
cal work. Thus, by terminating Mallory, Respondent
was able to eliminate a fixed expense-his guaranteed
weekly salary-and to assign more work to the me-
chanics, some of whose work Mallory was taking away.
Morrison was a leading adherent of Local 259; its
last three meetings before the election were held at his
home. However, he was not laid off until October 12,
several days after the election, in which he voted with-
out challenge. His job was to prepare new cars for
" The Trial Examiner's statement that the General Motors strike had
ended before Morrison was laid off is clearly incorrect. See fn 5, supra.
VANELLA BUICK OPEL, INC.
delivery by cleaning, polishing, and buffing them. At
the time of his layoff, the General Motors strike had
already lasted nearly a month. As a result, no new cars
had been delivered to Respondent; its stock of new cars
was seriously depleted; and its sales , and hence the need
for preparing new cars, had declined substantially. In-
deed, there was testimony that Morrison had to sweep
the floor to keep busy. Moreover, Service Manager
Geise testified without contradiction that Morrison
could not do other kinds of work because his eyesight
was failing. Accordingly, it cannot be concluded that
Respondent's claim of economic justification for this
layoff has been shown to be a mere pretext. The com-
plaint is therefore dismissed as to Ricelli, Mallory, and
Morrison.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner, as modified below, and hereby or-
ders that the Respondent, Vanella Buick Opel, Inc.,
Plainfield, New Jersey, its officers, agents, successors,
and assigns , shall take the action set forth in the Trial
Examiner 's recommended Order, as so modified:
1. Substitute the following paragraphs for paragraph
2(a) of the recommended Order:
"(a) Offer to Linzie Towns and Lloyd Wallace im-
mediate and full 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 previously enjoyed by them, and
make them whole for any loss of pay suffered by reason
of Respondent 's discrimination against them, in the
manner set forth in the section of the Trial Examiner's'
Decision entitled `The Remedy."'
"(b) Make Eliso Lombardi and Ronald Lombardi
whole for any loss of pay suffered by reason of the
discrimination against them, from the date of their ter-
minations to the date when they would have been laid
off for lawful reasons, with interest at the rate of 6
percent per annum."
2. Renumber paragraphs 2(b) through (e) of the
recommended Order as paragraphs 2(c) through (f),
respectively.
3. Substitute the, attached notice for the Trial Ex-
aminer's notice.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges viola-
tionsof the Act not found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARDx,
An Agency of the United States Government
807
WE WILL NOT discourage membership in Lo-
cal 259, United Automobile Workers, Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, or
any other labor organization, by discharging or
laying off employees or otherwise discriminating
in any manner in respect to their tenure of employ-
ment or any term or condition of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed to them by Section 7 of the
National Labor Relations Act.
WE WILL offer Linzie Towns and Lloyd Wal-
lace immediate and full reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority and other rights
and, privileges enjoyed by them, and make them,
Eliso Lombardi and Ronald Lombardi, whole for
any loss of pay they may have suffered with inter-
est at the rate of 6 percent, by reason of the termi-
nation of their employment.
VANELLA BUICK
OPEL, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately Linzie Towns and Lloyd
Wallace, if presently serving in the Armed Forces of
the United States, of their right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60, consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Federal Building, Sixteenth Floor, 970 Broad
Street, Newark, New Jersey 07102, Telephone 201-
645-2100.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is a con-
solidated case consisting of two unfair labor practice cases
and a representation case. In unfair labor practice Cases 22-
CA-4204 and 22-CA-4206, charges were filed on September
14, 1970, and amended in Case 22-CA-4204, on October 8,
1970, against Vanella Buick-Opel, Inc., herein called Re-
spondent or the Company, by Local 259, United Automobile
Workers, International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America,
herein referred to as Local 259. Upon such charges, the Gen-
eral Counsel of the National Labor Relations Board, by the
Regional Director for Region 22 (Newark, New Jersey), is-
sued a-consolidated complaint on October 22, 1970. It was
amended on November 20, 1970. Said complaint as amended
in substance alleges the commission of unfair labor practices
by Respondent violating Section 8(a)(1) and (3), and affecting
commerce as defined in Section 2(6) and (7), of the National
Labor Relations Act, herein called the Act. Respondent has
answered admitting certain facts but denying that it commit-
ted any of the unfair labor practices alleged in the complaint.
In representation Case 22-RC-4745, Local 259 filed with
the Board a petition to be certified as the representative of the
Company's employees in a specified unit. At the election held
thereafter on said petition the Company challenged the bal-
lots of Ronald Lombardi and Winfred Mallory on the ground
that their employment had been lawfully terminated prior
thereto. The Regional Director issued a report on challenges,
dated October 30, 1970, directing a hearing on the challenges
to said two ballots. Said Regional Director also ordered that
the consolidated complaint be consolidated with the chal-
lenges in the representation case for purposes of hearing,
ruling, and decision, and further ordered the Trial Examiner
to resolve the issues raised by said challenges and to render
a decision thereon and to remand said representation case to
him for further processing.
Pursuant to due notice this consolidated case came on to
be heard, and was tried before me, at Newark, New Jersey,
on December 15, 16, and 17, 1970. All parties were repre-
sented at and participated in the hearing, and had full oppor-
tunity to adduce evidence, examine and cross-examine wit-
nesses, file a brief, and present oral arguments. Respondent's
motion to dismiss when the General Counsel rested was de-
nied. The General Counsel and Respondent argued orally at
the close of the case.
Upon the entire record in this consolidated case, and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
I AS TO JURISDICTION
Respondent, a New Jersey corporation, is engaged at Plain-
field, New Jersey, in selling at retail and servicing automo-
biles. During the year 1969 Respondent's gross volume of
business exceeded $500,000, while at the same time Respond-
ent received goods valued in excess of $500,000 directly from
points outside the State of New Jersey. I find that Respondent
is now, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act, and that it will effectuate the purposes of the
Act to assert jurisdiction over Respondent in this proceeding.
II THE LABOR ORGANIZATIONS INVOLVED
Local 259 and Amalgamated Local Union 355, the latter
herein called Local 355, each is a labor organization within
the meaning of Section 2(5) of the Act.
III THE ISSUES
A. In the consolidated unfair labor practice case the issues
are:
(1) Whether Respondent unlawfully laid off employees
Linzie Towns, Eliso (Lee) Lombardi , Paul Ricelli , and Orin
Morrison for engaging in union or other activity protected by
the Act.
(2) Whether Respondent unlawfully discharged employees
Ronald Lombardi , Lloyd Wallace, and Winfred Mallory for
engaging in union or other activity protected by the Act.
(3) Whether Respondent informed its employees it knew
that Local 259 held a meeting for said employees.
B. In the representation case the issue is whether em-
ployees Ronald Lombardi and Winfred Mallory were unlaw-
fully discharged so that, notwithstanding their discharge
prior to the election , they remained employees and, conse-
quently, their ballots should be counted in determining the
outcome of the election.
IV. THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
About August 31, 1970, Lee Lombardi, a salesman for
Respondent, interested Carlo P. Oliveri, an organizer and
representative of Local 259, in organizing Respondent's em-
ployees. A meeting was then arranged for the following day
at Joanie's Diner in Somerville, New Jersey. At this meeting
Oliveri turned over about 20 Local 259 union cards to Lom-
bardi.
On September 2, Oliveri met with Lombardi's son, Donald,
an employee of Fullerton Ford in Somerville, New Jersey.
Donald handed approximately 15 signed cards to Oliveri.
Thereupon Oliveri proceeded to Respondent's place of busi-
ness where he spoke to Mr. Heller, its general manager. Al-
though Oliveri asked that Local 259 be recognized for Re-
spondent's service and sales departments, Heller replied that
he could not do so but he said he would convey this request
to Nick Vanella, Respondent's president. Later that day Oli-
veri sent Respondent a telegram requesting recognition.
While at Respondent's place, Oliveri also spoke to some
employees, one of whom was Linzie Towns, and set up a
meeting with employees for September 8 at Plainfield, New
Jersey. Among others, said meeting was attended by Lee
Lombardi, Orin Morrison, Linzie Towns, Winfred Mallory,
Lloyd Wallace, and Ronald Lombardi. At this affair Oliveri
was informed that the employees Linzie Towns, Lee Lom-
bardi, Ronald Lombardi, and Lloyd Wallace had been laid off
by Respondent.
A second meeting with Respondent's employees was, held
by Oliveri on September 16 at the home of employee Carl
Able. Among others, the laid-off employees mentioned in the
preceding paragraph attended.
Still another meeting with employees was held by Oliveri
on September 23 at the home of employee Orin Morrison. On
this occasion Oliveri "was informed [by Mallory] that Win-
fred Mallory was laid off" by Respondent. Another meeting
was held on September 28 at Morrison's home. Mallory,
among others, came to it . A further meeting was held at
Morrison's home on October 6.
About October 14 Morrison informed Oliveri that he,
Morrison, and employee Paul Ricelli, were that day laid off
by Respondent. Ricelli had attended the last three of the
above meetings.
VANELLA BUICK OPEL, INC.
1. The layoff of Linzie Towns
Towns was laid off about September 2, 1970, by John
Geise, service manager and an admitted supervisor and agent
of Respondent. Towns was hired in the latter part of 1967 as
repair shop foreman. He was paid a salary and commission
and did not punch a timeclock. The other mechanics did
punch the clock. He also "did work troubleshooting, most
electrical work ... most air condition work ... and [he] was
everything, front end allignments, whatever to be done [he]
did." He classified himself as a mechanic. There are al-
together seven or eight mechanics and a lubrication man in
the repair shop.
On the day Towns was laid off Geise called him shortly
before 5 p.m. Then Geise said that he had to lay off Towns
"because it's been a slow month and a [General Motors]
strike is coming up." Yet Towns, who was the senior man in
point of service in the shop, was not retained. In the opinion
of Towns there was no less work in the repair shop in August
than in July, and more in August than in June. In fact Towns
received greater commissions in August than any other previ-
ous month.
Further, about late August Towns and two other mechan-
ics had been scheduled by Respondent to attend a school
conducted by General Motors to educate them regarding the
new 1971 models about to come on the market. This school
was to be conducted about September 7 or 8.
Towns signed a union card for Local 259 about September
1, 1970, in the shop upon the solicitation of employee Carmen
Rocco, a new-car salesman.
When Towns returned about September 4 to pick up his
paycheck he spoke to Nick Vanella, Respondent's president.
When Towns asked Vanella why he, Towns, had been laid off,
Vanella replied that he did not know but "would have to
check into that."
Respondent, according to Towns, is constructing a new
facility on Highway 22, about 2 miles from its present loca-
tion. Further, Towns testified that he never hired or fired
anybody, or had authority to discipline, hire, or fire em-
ployees, except that on the day he was laid off he was in-
structed he could fire any mechanic who refused to clean the
dirty floor, although on a prior occasion Towns was not given
this authority when the floors were dirty. He also had no
authority to grant time off to employees. He never handed out
repair orders to mechanics until the last 2 weeks in August
1970, and this only because a "mix-up downstairs with the
work orders" had occurred . But this was a ministerial task,
for prior to this the mechanics themselves went downstairs
and picked up the orders themselves.
On cross-examination Towns testified that he recom-
mended Willie Moore, a friend, for a job with Respondent,
and Moore was hired by it. But Towns did not at any time
recommend anyone else.
It was stipulated that the General Motors strike com-
menced September 14, 1970, and ended prior to the trial of
this case.
2. The layoff of Eliso (Lee) Lombardi
Lombardi applied for a salesman's job at Respondent as a
result of a newspaper ad he read in March 1970. Respondent
hired him in the latter part of June, probably June 30, as an
automobile salesman. In late August or September 1, 1970,
he induced Carlo Oliveri, a representative for Local 259, to
organize Respondent 's servicemen and salesmen . Not long
after this Supervisor Heller , Respondent's general manager,
said to Lombardi, "I know what you are doing ... I got the
call from the union that was intended for you this morning."
809
Shortly thereafter Lombardi set up a meeting with Oliveri
at Johnnie's Diner on Route 22 for September 1. At that
meeting Lombardi received about 20 union cards from Oh-
veri. Many cards were signed by employees at the request of
Lombardi and employee Rocco. Lombardi also signed a card
for Local 259. These were turned over by Lombardi to his
son, Donald, who worked at Fullerton Ford, who gave them
to Oliveri.
About 5 minutes before quitting time on September 3,
1970, General Manager Heller laid off Lombardi. In explain-
ing this Heller mentioned among other things, that President
Vanella "actually pinpointed it down to you and Mr. Wal-
lace. I [Heller] am going to have to lay you off." Continuing,
Heller added that "I don't think your son [Ronald Lombardi]
will be able to stay here under these conditions."
Lombardi further testified that, although sales of cars in
August are usually slow, he thought "we were doing fairly
well" in August 1970, and that figures shown him by Heller
disclosed "that we were not that far behind last year."
Lombardi was informed a few times by Heller that Re-
spondent was constructing a new facility on the highway.
Heller expected to install a "used car operation" at this new
location, and, all in all, believed he needed more salesmen
because he expected a 50-percent increase in business. The
last time Heller made this prediction to Lombardi was 8 or
9 days prior to the latter's lay off.
3. The layoff of Orin H. Morrison
Morrison was hired by Crest Buick, and kept by Siena
Buick, Respondent's predecessors, and continued to be em-
ployed by the latter after it bought Siena Buick in 1964. His
job is that of preparing new cars for delivery by cleaning,
polishing, and buffing them. About September 1 or 2, 1970,
he signed a card for Local 259.
On October 13, 1970, Service Manager Geise called a meet-
ing of mechanics, which Morrison attended. President
Vanella also was present. Geise informed the assembly that
"things was slow," and that they would be working short
weeks. When the meeting ended Morrison asked Geise,
"Where do I come in?" Replying, Geise said, "You don't
come in this ... things is slow ... just get your things and
leave." Although August and September are normally "a
little slow," business "picks up" after the new models arrive.
On an average day Morrison prepared five or six cars. On
busy days he serviced 9 or 10 cars. He estimated 75 or 80 cars
were in stock when he was laid off on October 12. After
Morrison left employee Brown informed Morrison that the
bodyman "was doing some of the cars." Morrison "under-
stands somebody from outside is doing [this work] now." The
General Motors strike had ended before October 12, 1970.
Morrison attended all union meetings held by Local 259
during its organizational campaign. The last three were held
at his home. Morrison once recommended a friend, Mr.
Brown, to be hired and Brown was hired.
4. The layoff of Paul Ricelli
Ricelli was hired by Respondent the second week of Au-
gust 1970, as a parts man. He came there by answering a
newspaper employment advertisement of Respondent, and
was accepted by Respondent's' parts manager, Mr.
Napolitano. Just before quitting time on the day of the elec-
tion in the representation case (October 8, 1970), Napolitano
laid off Ricelli because "everything is slow."
While employed as a parts man Ricelli attended two meet-
ings which Local 259 held for Respondent's employees.
About October 1, 1970, the day after Ricelli went to the
second of these meetings, Napolitano told Ricelli that the
former heard that Ricelli was present at a union meeting.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Ricelli asked him how he found out Napolitano replied
that he "gets around ." Ricelli signed a card for Local 259 at
the first meeting he attended . Ricelli also attended a meeting
of Local 355.
5. The discharge of Lloyd Wallace
On April 3 , 1970, Wallace started his employment with
Respondent as a salesman . Lombardi and Brown were hired
as salesmen after Wallace. About 5 weeks later Brown quit
his employment to look for other employment . A week later
Brown returned "asking for his job back."
During a conversation with L . Heller, Respondent's gen-
eral manager, in the first week of August 1970, Heller told
Wallace that when Respondent moved to its new location on
the highway "the place will be organized with the Union."
Continuing, Heller remarked that "if there is any union to be
brought in Mr. Vanella will bring one in from New York."
On September 4, 1970, Respondent 's president , Vanella,
discharged Wallace. Yet Respondent gave Wallace "a refer-
ence to Chandler Motors." Upon Wallace 's inquiring for a
reason for his termination , Vanella replied , "Well, I don't like
what's going on ." Although Wallace then stated he did not
know to what Vanella was referring , the latter stated,' "You
know what I am talking about ." Vanella added that "You
became involved in something that hurts me and when I get
hurt I hurt back." When Wallace asked if it was the Union,
Vanella rejoined, "You know what it is."
Thereupon Wallace protested that it was not fair to let him
go because he was hired before Brown and also Brown quit
for a short period . But Vanella insisted that Brown was hired
before Wallace and that Brown had not quit but had been on
a leave of absence . However , Wallace insisted that Brown was
not on leave because Wallace observed , during the week that
Brown was not at work, that Respondent had advertised in
the newspaper for a new salesman.
Commenting on his sales record , Wallace described it as
"above average." About the end of November 1970, Wallace
"found out that [Respondent] hired a new salesman." Not-
withstanding this, when Wallace asked President Vanella to
be reinstated the latter told him to "come in the week before
Christmas and speak to [Vanella]."
6. The termination of Winfred D. Mallory
In July 1970 , Respondent hired Mallory as a lubrication
man and mechanic . Although he signed a card for both Local
259 and Local 355, he did not turn in the latter card. This
Local 355 card was handed to him by Respondent 's assistant
service manager, Gary Fischer. Mr. Fischer voted in the
election.
About 5 p.m. on September 17, 1970, John Geise, Re-
spondent's service manager, told Mallory that "it's getting
pretty slow ... I am sorry to do this but I got to let you go."
Although Mallory was guaranteed a weekly wage he was
compensated on a piece rate. At first he was guaranteed $90
a week. A week later this guarantee was raised to $100 a week
because, he was told by the service manager , he was "doing
a pretty good job." Mallory 's duties required him to change
oil, filters , tires, and grease . Chiefly he did lubrication work.
In addition , whenever he was caught up in this work he also
performed some mechanical work . Although he averaged
about $120 a week , the last 2 weeks before he was terminated
he made $143 and $144, respectively . There were no other
employees engaged in lubricating.
Although Mallory sought to vote in the election he was
challenged by Respondent His vote, according to Respond-
ent, was questioned because he "was discharged on Septem-
ber 18, 1970," and therefore , was ineligible to cast a ballot.
See General Counsel 's Exhibit 3.
7. The discharge of Ronald Lombardi
Lombardi was hired by Respondent in late July 1970, as a
utility man; i.e ., he performed odd jobs in connection with
cars. Ben Brown was the other utility man . Lombardi 's hours
of employment were from noon until 8 :30 p.m . Around Sep-
tember 1 Lombardi signed a card for Local 259.
On September 2, 1970, Lombardi was instructed to report
for work at 8 a.m. on September 3 and 4 and the following
week because Service Manager John Geise needed him. At
the end of the day, i .e., about 6 p .m., on September 4, Geise
told Lombardi "it was slow" and Geise had to let Lombardi
go. When Lombardi asked whether he was being fired or laid
off, Geise replied that Lombardi was laid off. Geise added
that if Lombardi needed a reference , Geise would give one.
However, Lombardi has not since been recalled to work by
Respondent.
B. Respondent 's Evidence
1. Leonard Heller 's testimony
Heller was employed by Respondent as its sales manager
from February 3, 1969 , to November 30, 1970. In this
capacity he supervised its salesmen . He was terminated by
Respondent because "business became very slow." He then
became employed by Sullivan Chevrolet as sales manager.
Respondent gave Heller no prior intimation that he would be
laid off.
Early in the morning of September 2, 1970, Carlo Oliveri,
a representative of Local 259 , spoke to Heller for about 30
seconds. Among other things Oliveri requested recognition
for Local 259 . Heller responded that he was "not authorized
to do anything" but promised to give President Vanella the
message and some papers which Oliveri handed to Heller to
be transmitted to Vanella.
Further, Heller denies that he discussed Oliveri with Lee
Lombardi. In addition , Heller does not "recall" saying, about
August 31, 1970 , to Lombardi, "I know what you are doing,
I know it is none of my business , I got a call for you from the
Union."
Although President Vanella made the decision to lay off
Lee Lombardi , Heller discussed this layoff with Lombardi.
Heller was not informed of this decision until the day Lom-
bardi was terminated . Heller then conveyed this information
to Lombardi that , since "business is quiet, we have got to lay
off someone . You are the last man here. Based on seniority,
you are first man to go." As Lombardi left he said , "You tell
Vanella that he is going to have a union here one way or
another."
Additionally, Heller is "sure" that he informed employee
Lloyd Wallace in August 1970 , that when Respondent moved
to Route 22, it "would probably be organized. But Heller
does not "recall" asserting that President Vanella would
bring in a union from New York . Heller did not make the
decision to lay off Lloyd Wallace; President Vanella did and
so informed Heller on the day after Lee Lombardi was laid
off.
2. The testimony of Nicholas Vanella
Vanella is Respondent 's president . The latter has been
located since late February 19,68 at 145th ' Street, Plainfield,
New Jersey . Its total employee complement was 30 to 32 in
July 1970 but had been reduced to 15 or 16 by mid-December
1970. Respondent is constructing a new facility on Route 22
in Scotch Plains, New Jersey , about 4 miles distant from its
present plant . It should be completed in February or March
1971.
VANELLA BUICK OPEL, INC. 811
The General Motors strike started on September 14, 1970,
but its Buick plants "closed down 30 days ahead of time on
the model change over." When Buick did start up again it was
confronted with "production problems," so that, as of the
date of the hearing herein, "there still hasn't been a full line
of production out." As a result Respondent "lost 125 cars
because of that 30 day shutdown."
According to Vanella, "because of the early shutdown"
General Motors Buick Division advised its dealers to "cut
down to a bare minimum unproductive help, which means
. porters, bookkeepers, cars jockeys.... and manage-
ment." But mechanics are "productive help" and, therefore,
Respondent did not lay off any mechanics until "parts started
to be scarce and we could not complete work." Nevertheless
no mechanics were laid off because "the last two quit." Be-
tween May 1970 and August 1970 Respondent "lost better
than a third" of sales income.
Vanella contradicted employee Morrison's testimony that
70 to 80 cars were on Respondent's premises when Morrison
"left" its employ. In Vanella's opinion the number should be
40 to 44 cars. Vanella also explained that he gave the mechan-
ics two choices because parts were unavailable. One alterna-
tive was to lay off half the mechanics. The other was to
stagger the work so that they would work 3 days I week and
2 days the following week. They accepted the latter alterna-
tive.
Vanella made the decision to lay off Linzie Towns, Lee
Lombardi, Paul Ricelli, Orin Morrison, Ronald Lombardi,
Lloyd Wallace, and Winfred Mallory. On cross-examination,
however, Vanella insisted that Geise laid off Towns, and that
Vanella's part in this situation was merely to tell "Geise that
the shop had to be cut back and the overhead had to be
decreased." (See p. 558 of the transcript.) Salesmen were
selected for this purpose by examining the Company's
records for those with the poorest sales "and the least time."
In the shop, porters were terminated first because they were
nonproductive. The remaining classifications were laid off
according to seniority.
In July 1970, Linzie Towns was supervising the men on the
second floor. Towns has been vested with power to hire and
fire since February 1968. At no time did Vanella inform
Towns that Towns had the power to hire and fire anybody.
At first Towns supervised anywhere from 6 to 10 mechanics.
He was paid a salary plus commission . However, the service
mannager and the service writers in the service department
are also compensated by a salary and commissions . His duties
required him to "make sure the work got done. If there was
a problem, he would jump in and show the mechanics how
to do it." Later he also assigned work to mechanics after
Service Manager Geise "got bogged down." Another respon-
sibility resting `on Towns was to have the men clean their
stalls every night. On the other hand Service Manager Geise,
who supervised the mechanics also, supervised the remainder
of those in the service department. Said remainder consisted
of service writers and the lubrication men. In all Geise super-
vised 14 employees. On one occasion, when Vanella suggested
to Geise, in the presence of Towns, that Towns might be able
to "go back" to being a mechanic, Towns replied that he
would never be a mechanic again.
About September 5, 1970, when Towns came in to pick up
a check, he spoke to Vanella. Although Towns mentioned "it
was nice working for" Vanella, Towns did not inquire as to
why he was laid off. Vanella testified further that Towns was
laid off first because "he was the most expensive and nonpro-
ductive ... he was management."
Vanella instructed Sales Manager Heller to lay off Lee
Lombardi because Lombardi "was the last man to be hired.
He had the lowest sales record, and the sales[men] had to be
cut [because] there were too many men on the floor for the
number of sales I was doing." Lombardi had worked for
Respondent about 2% months. During that time his "com-
pleted sales ... retailwise" amounted to 19. Brown, the clos-
est to Lombardi, had a 50 percent better sales record than
Lombardi.
Continuing, Vanella testified that he decided to lay off the
only car polisher, Orin Morrison, because "we were running
off of cars, didn't have enough work. . . . As a matter of fact,
we had him sweeping the floor to keep him occupied during
the day." Following Morrison's termination, Respondent has
sublet the car polishing operation.
Paul Ricelli, who worked in the parts department, was let
go because "we were running short of parts. We had three
men in there." Ricelli was the one with the least seniority.
Vanella insisted that employee Brown, a salesman, did not
quit but, rather, was on a leave of absence for a week or two.
Brown took this leave "to make up his mind" whether "he
really wanted to make this a career ... or he would have to
leave."
At the time employee Wallace was laid off on,September
4, 1970, he spoke to Vanella. When Wallace asked why he
had been chosen to go, Vanella replied "through seniority."
Thereupon Wallace insisted that Brown had quit and then
returned, thereby not having seniority over Wallace. But
Vanella insisted that Brown had been on leave only. And at
no time during this conversation did Vanella mention unions
or unionization, or that Wallace had hurt the Company, or
that Vanella was going to hurt Wallace. In fact Respondent
recommended Wallace to Chandler Dodge Company.
It is true that Respondent later hired a salesman to replace
Wallace. But this person was taken on as a trainee. There just
is "not enough supply" to recall Wallace. However, Vanella
told Wallace the latter would be "offered his job back" when
"the new place would open and the cars would flow."
3. The testimony of John Geise
Geise is service manager in charge of Respondent's service
department. In July 1970, that department employed 15 or 16
people, including the mechanics. Linzie Towns worked under
Geise as shop foreman on the second floor. Towns, who
received a salary plus commissions, had "the power to hire
and fire" and he recommended Willie Moore for employment
as a , general mechanic. However, Towns never hired, fired, or
disciplined any employee. While Geise insisted that "this
permission [to hire and fire] comes with the job of shop
foreman," he never told Towns that the latter was empow-
ered to hire and fire.
About a week before Towns was laid off Geise received a
directive from General Motors that "schools are going to be
held" and to send as many mechanics as possible "to this
school." Such schools were to train those attending to under-
stand the new models. Geise directed Linzie Towns, among
others, to attend said schools to be "oriented" to the 1971
model cars. And about a week before this Towns received an
increase, or raise, in his commissions.
When Geise became service manager he "made it clear" to
Towns that Towns "was acting as myself on the second floor
... '[Towns] has to be me and delegate authority on the
second floor as I would do it." Early in the summer of 1970
Geise tried to give Towns the additional responsibility of
assigning work to the mechanics, but Towns "declined to do
so." Consequently Geise "turned over the complete job of
giving out the work to the mechanics themselves in August."
In February 1970 Towns told Geise, in the presence of Presi-
dent Vanella, that he, Towns, "would never be a mechanic
again" in replying to Geise's suggestion that Towns "do more
actual mechanical repair work" rather than devote all his
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time to helping the mechanics with their "problems" and
"diagnosing those problems." Nevertheless, Towns did per-
form mechanical work for Respondent.
Although Towns received a guaranteed salary plus com-
missions, so did the service writers working for Geise in the
service department. Beginning in August 1970, Towns was
instructed to transmit work orders to the mechanics. These
orders were written up by the service writers, who then, prior
to August, themselves gave them to the mechanics.
On September 2, 1970, Geise laid off Towns, informing
Towns this became necessary because service work "dropped
sharply ... from July to August." Continuing, Geise told
Towns that, due to the "ensuing strike coming, there is going
to be a sharp decline in service." and that, since Towns was
"unfortunately the largest expense of [Geise's] cost to labor
as a nonproductive worker, [Geise] had to start with" Towns
in "paring my department and cut my cost of labor." Towns
"was extremely bitter" at this decision.
Geise laid off Orin Morrison, a car polisher, "during the
middle of October." In doing so, Geise told him that this
resulted from a "lack of cars and the lack of sales." and that
Geise could no longer afford to employ Morrison in polishing
floors. Due to the lack of work as a car polisher, Morrison
had been assigned to polishing floors in order "to keep the
man employed as long as possible." It was not feasible to
retain Morrison for "other work" because his eyes were fail-
ing.
Geise also laid off Ronald Lombardi, a porter, about 6
p.m., the closing time. In doing so, Geise informed Lombardi
that, as car sales were falling off, there was a "lack of work"
which necessitated "tightening up on overhead and that
[Lombardi's job] being a nonproductive expense" Geise was
compelled to release Lombardi. However, Geise offered Lom-
bardi the opportunity of using Geise's name as a reference.
Winfred Mallory, who worked under Geise as a lubrication
man, was a piece worker who was guaranteed a minimum
salary. However, Mallory never made his guarantee on lube
work alone, so that Geise assigned him to additional work,
such as undercoating new cars and light mechanical work.
On September 18, 1970, Geise laid off Mallory, telling the
latter that "lube work has dropped off... [and] mechanical
work has dropped off" to a "point where I cannot sustain
you." Geise further testified that he had to lay off Mallory "in
order to protect the, mechanics because he [Mallory] was
doing a certain amount of light mechanical work." Thereafter
the lube work was assigned to the regular mechanics for a
while. As of the, date of the hearing herein it is being sublet
to an outsider.
In September 1970, Respondent hired Boyce as a trainee
in the service department. Boyce acted as a helper to the
bodyman in the bodyshop. Boyce was needed because "body
work had not declined as our service work" and the regular
bodyman needed a helper.' Boyce quit in October.
Geise also laid off other employees in the service depart-
ment in October and' November 1970, viz., Ricelli, Kaliner,
Lamb (a service writer), and Walinsky (Wolenski), a trainee.
In addition, Moore took a "long vacation [and] never came
back." Further, Geise testified that he decided whom to lay
off after President Vanella directed him to cut down on ex-
pense, and that Vanella at no time specified which employees
to terminate.
Concluding his testimony, Geise asserted that he "laid off
the four employees in the service department by seniority
according to job classification."
4. The testimony of Donald Napolitano
Respondent's parts manager is Donald Napolitano. He at
one time employed two persons in this department, one of
whom was Paul Ricelli. After Ricelli had worked for Re-
spondent for about 2 months, i.e., on October 8, 1970,
Napolitano laid him off telling him that "things were very
slow." Ricelli replied that he "saw it coming." When he laid
off Ricelli, Napolitano informed him that the latter would
"take him back when the situation got better, when possibly
if the strike was over and business started to pick up again."
At one time employee Ricelli asked Napolitano "what to
do in reference to the union." Answering this question,
Napolitano advised Ricelli "to go to both meetings," i.e., of
Local 259 and Local 355, and "to make his [Ricelli's] own
decision."
On cross-examination, Napolitano stated that he was
"aware of the union meetings that the men were going to"
and that employee Ricelli once mentioned that he, Ricelli,
attended a "union" meeting. In this conversation Ricelli
asked for "advice about unions." Napolitano answered, "it is
up to you." In addition, Napolitano on cross admitted that
he "may have handed" Ricelli an application to join Local
355. In fact Napolitano conceded that he "was handed" such
applications of Local 355 "to give to my employees and that
is what I did." Local 355 was also "trying to organize" Re-
spondent's employees.
Further, on cross, Napolitano averred that President
Vanella said to him "to cut my department" without men-
tioning any employee by name, but Napolitano alone made
the decision to terminate Ricelli. Ben Brown is now perform-
ing Ricelli's work. But Brown does other work also.
C. Concluding Findings and Discussion
Initially it is desirable to mention that the burden of proof
rests upon the General Counsel to establish the allegations of
his complaint, and that this burden never shifts. I have been
guided at all times by this principle.
While I have not placed much reliance on it or given it
much weight, I have not disregarded the modern doctrine
that direct evidence of an intent to discriminate is rarely
available, because employers have acquired experience as to
how to get rid of employees engaging in activity safeguarded
by the Act. N.L.R.B. v. Melrose Processing Co., 351 F.2d 693,
698 (C.A. 8). "Direct evidence of a purpose to discriminate
is rarely obtained, especially as employers acquire some so-
phistication about the rights of their employees under the
Act; but such purpose may be established by circumstantial
evidence." Corrie Mills v. N.L.R.B., 375 F.2d 149, 152 (C.A.
4). "nowadays it is usually a case of more subtlety." N.L.R.B.
v. Neuhoff Bros., 375 F.2d 372, 374 (C.A. 5).
1. The layoff of Linzie Towns
Initially, I find that Towns was not a supervisor under the
Act but, rather, that he was an employee. I find expressly
that, notwithstanding that he was called a foreman, his major
time was devoted to performing the tasks of a mechanic. And
I expressly find that at no time was Towns informed that he
had authority to hire or fire, notwithstanding testimony by
Respondent's witnesses that the job of foreman by its nature
carried with it such power.
Further, I find that although Towns exercised some direc-
tion over the mechanics and, in the last few weeks before
being laid off, handed them written repair orders prepared by
service writers, this was of a routine nature and did not
involve the exercise of independent judgment. Hence I find
that he did not responsibly direct them. Also, it is significant
that there were but a few mechanics, all" of them under the
VANELLA BUICK OPEL, INC. 813
direct supervision of Geise, and that there was no occasion
to have an additional supervisor for so few employees.
Then, again, it is true that shortly before he was laid off
Towns was told to fire anyone who refused to clean up. But
this not only demonstrates that Towns previously lacked this
authority, for otherwise it would not have been necessary
expressly to confer it upon him on this occasion, but it also
vested Towns with a limited authority confined to this one
situation on this one day. Finally, although Towns once
recommended an employee to be hired, so did others
conceded to be employees make similar recommendations. It
follows that this isolated instance cannot suffice to convert
Towns from an employee to a supervisor.
It is my opinion, and I find, that Towns was terminated for
engaging in activity protected by the Act, and that the rea-
sons elicited at the trial to justify such action are pretexts to
disguise the true reason. This ultimate finding is based on the
whole record and the following subsidiary findings which I
hereby find as facts:
a. Towns signed a card for Local 259. It is reasonable to
infer-and therefore I find-that Respondent had knowledge
of this because it operated a small plant . Under the Board's
small plant rule knowledge of union activity at such plant
may be imputed to the employer. Angwell Curtain Company,
Inc. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7). In addition, the
timing of this and other contemporaneous discharges impute
knowledge to the employer. American Grinding & Machine
Co., 150 NLRB 1357, 1358.
b. Only supporters or members of Local 259 were selected
for layoff, assuming that it was necessary to reduce the work
force for legitimate business conditions. Arkansas-Louisiana
Gas Company, 142 NLRB 1083, 1085. This is significant,
especially since another labor organization, Local 355, was
also organizing simultaneously with Local 259. The elimina-
tion of union adherents-in this case those supporting Local
259-tends to discourage other employees to be interested in
that union and "is a most effective method of undermining a
union organizational effort." N.L.R.B. v. Longhorn Transfer
Service, Inc., 346 F.2d 1003, 1006 (C.A. 5).
c. There was no way Respondent could know that General
Motors would be on strike. Nothing in the record points with
any reasonable certainty that General Motors would be
struck by the U.A.W. The fact that General Motors was
struck after Towns was terminated cannot obscure the fact
that prior to such strike it was impossible to know whether
it or some other automobile manufacturer would be struck.
In fact General Motors had directed its dealers to send se-
lected personnel to General Motors' special school to orient
them to the new 1971 models. Patently this does not depict
a prediction that General Motors would be struck. Hence, I
find that there was no impending strike which reasonably
could be expected to reduce sales to a point necessitating the
layoff of Towns.
d. Towns was selected to attend the special school de-
scribed in the previous paragraph. If Respondent anticipated
a slackening of business it would not have picked Towns to
attend such school. Hence, it is reasonable to believe, and I
find, that some other aim than a layoff prompted by slacken-
ing business lay behind the termination of Towns. I find this
aim was to frustrate the campaign of Local 259. Also, Towns
received an increase in commissions shortly before being ter-
minated. This is significant.
e. Towns was abruptly eliminated. This is an element
which may be evaluated in arriving at the conclusion that
Towns was terminated for his membership in Local 259.
N.L.R.B. v. Montgomery Ward & Co., 247, F.2d 497, 502
(C.A. 2), cert. denied 355 U.S. 829. This precipitate action
gains added significance when it coincides with the campaign
of Local 255 to organize Respondent. N.L.R.B. v. Hawthorn
Company, 404 F.2d 1205, 1210 (C.A. 8); Arkansas-Louisiana
Gas Company, 142 NLRB 1083, 1085-86; Virginia Metal-
crafters, Incorporated, 158 NLRB 958, 962.
Nor was Towns given any advance notice that he was to
be laid off. If business was in fact slow, it is reasonable to
expect that Towns would be given some indication that he
would be laid off if it did not improve. Yet he was not so
alerted to the possibility of a layoff. Failure to give such a
warning is entitled to probative value. Cf. E. Anthony Sons,
Inc. v. N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.); N.L.R.B.
v. Melrose Co., 351 F.2d 693, 699 (C.A.8).
f. Respondent entertained some hostility toward Local 259,
and preferred Local 355. In fact Supervisor Napolitano, Re-
spondent's parts manager, handed out applications on behalf
of Local 355. Of course an employer may lawfully oppose
unions and union hostility, is not an unfair labor practice
(N.L.R.B. v. Threads, Inc, 308 F.2d 1, 8 (C.A. 4); N.L.R.B.
v. Howard Quarries, 362 F.2d 236 (C.A.8); J. P. Stevens &
Co., Inc., 181 NLRB No. 97), nor is union membership a
guarantee against termination for lawful cause. N.L.R.B. v.
McGahey, 233 F.2d 406, 413 (C.A. 5). But union animus is
a factor which may be considered in arriving at the actual
reason inspiring a termination. N.L.R.B. v. Georgia Rug Mill,
308 F.2d 89, 91 (C.A. 5); Maphis Chapman Corp. v.
N.L.R.B., 368 F.2d 298, 304 (C.A. 4).
Although Geise told Towns that the latter was laid off
"because it's been a slow month and a [General Motors]
strike is coming up," President Vanella failed to confirm this.
Indeed, when Towns pressed Vanella for an explanation as to
why Towns was released, Vanella replied that he did not
know and would have to "check into that." Vanella's indefi-
nite answer may be considered in determining the real motive
prompting such termination. Virginia Metalcrafters, Incor-
porated, 158 NLRB 958, 962. I find that Vanella's vagueness
is evidence of a discriminatory motive behind the layoff of
Towns.
g. Finally, I find that the protected activity need not be the
only reason responsible for his layoff. If his termination is
prompted by his protected activity, "it is a violation of the
Act even though a valid ground therefor might exist."
N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003,
1006 (C.A. 5). See Betts Baking Co. v. N.L.R.B., 380 F.2d
199 (C.A. 10). It is sufficient in finding the layoff of Towns
to be discriminatory that his protected activity is a motivating
or substantial ground for so terminating him. I so find.
N.L.R.B. v. Symons Mfg. Co., 328 F.2d 835, 837 (C.A. 7);
N.L.R.B. v. Lexington Chair Co., 361 F.2d 283, 285 (C.A. 6);
N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A.
1).
In arriving at the above findings I have credited Towns.
Respondent's evidence inconsistent with said findings is not
credited.
2. The layoff of Eliso (Lee) Lombardi
As in the case of Towns, I find that Lombardi was laid off
for his membership in and activity on behalf of Local 259, and
that the reasons therefor set forth at the hearing are pretexts
to dissemble the true cause. While this findings is based on
the entire record it is also derived from the following subsidi-
ary findings, which I hereby find as facts. In this respect I
credit Lombardi and do not credit Respondent's evidence not
consonant with said findings.
a. Lombardi was an adherent of and was active for Local
259 and Respondent had knowledge thereof pursuant to the
Board's small plant rule. Further, Respondent laid him off
abruptly, without warning, and at the height of the organiz-
ing campaign of Local 259.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Respondent uniformly selected Local 259 adherents for
layoff. In addition , Respondent preferred Local 355 and en-
tertained hostility towards Local 259.
c. Lombardi was active in the campaign of Local 259 to
organize Respondent . Plainly this does not shield him from
being laid off for cause. But the elimination of active union
adherents often is an effective weapon to discourage other
employees from being interested in the union . "Obviously the
discharge of a leading union advocate is a most effective
method of undermining a union organizational effort."
N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003,
1006 (C.A. 5).
d. For the reasons delineated in connection with the dis-
charge of Towns I find that Respondent had no reasonable
expectation that General Motors would be struck and that
such strike would affect Respondent's business.
Further, Respondent reasonably anticipated no material
reduction in business, for it hired Lombardi after advertising
for a salesman . Patently Respondent considered the situation
promising enough to hire a salesman for an appreciable
length of time . Nothing in the record suggests that Respond-
ent was taking on a salesman only for 2f' months , which is
the period of time Lombardi was retained.
Nor is it reasonable to accept Respondent 's contention that
sales were down so much that Lombardi could no longer be
used . This is because sales generally become less in the month
or two preceding the arrival of new models in September of
each year. Hence it is difficult to understand why Respondent
hired Lombardi shortly before September 1970, unless it may
be inferred-and I do so-that Respondent did not expect a
loss in August greater than in August of previous years.
While it is true that sales in August 1970 were below those
in July, it is equally true that this is a natural phenomenon
in the automobile industry . Further , this decline in 1970 has
not been shown to exceed that in 1969. Hence, it is reasonable
to infer that the August decline was normal and warranted
the retention of Lombardi.
e. In any event , I find that, even if a lawful cause existed
for the termination of Lombardi, it was not the overriding
cause. I find that the predominant reason for his termination
was his activity on behalf of Local 259, and that this suffices
to render his layoff discriminatory.
3. The layoff of Orin H. Morrison
I am convinced, and therefore find, that Morrison was
terminated because he joined Local 259, and that the reason
given him, i.e., "things is slow," is a pretext . This ultimate
finding is derived from the entire record and the following
subsidiary findings which I hereby find as facts:
a. Morrison not only was a member of Local 259, but he
was quite active in its cause . In this connection I find that he
attended all union meetings and that three of them were held
in his home. And I find, pursuant to the Board 's small plant
rule, that Respondent was cognizant of Morrison 's efforts on
behalf of Local 259. Terminating a leading union advocate
during the peak of an organizing campaign often signifies a
discriminatory intent. I so find.
b. Respondent picked out only supporters of Local 259 to
lay off, assuming some layoffs became feasible. This has
probative value in ascertaining the true reason behind Mor-
rison 's layoff.
c. Morrison was precipitately terminated. Since there was
no occasion to let him go so suddenly tends to establish, and
I find, that his activity on behalf of Local 259 substantially
contributed to his release . In addition, no notice was given to
him that business was so slackening that he would not be
needed unless it improved . Failure to alert him to the proba-
bility of a layoff under the circumstances cannot be over-
looked.
d. Respondent preferred Local 355 and had some animus
towards Local 259 . Of course this alone is not sufficient to
establish an unfair labor practice . Also, "the mere fact that
an employee is or was participating in union activities does
not insulate him from" being terminated . N.L.R.B. v. Ayer
Lar Sanitarium, 436 F.2d 45 (C.A. 9). And I recognize that
an employer may dislike one union and prefer another with-
out transgressing the Act. Section 8 (c) of the Act vouchsafes
this to Respondent . Nevertheless these factors are ingredients
which may be utilized in arriving at the actual reason moti-
vating a termination . I have taken them into consideration in
appraising the true motive actuating Morrison 's release.
e. And, of course, even if a valid reason exists for laying off
Morrison, his termination will nevertheless be found to be
discriminatory if the substantial , or predominant, or overrid-
ing ground for his termination is his activity for Local 259.
N.L.R.B. v. Ayer Lar Sanitarium, supra. I find that such
activity is the substantial , predominant, or overriding ground
for his release and, therefore , such removal from employment
is discriminatory.
4. The layoff of Paul Ricelli
It is my opinion , and I find , that Ricelli was laid off for
being an adherent of Local 259 , and the reason given him for
such layoff, namely , "everything is slow," is a pretext. This
finding is based on the entire record and the reasons found
in connection with the termination of Orin H. Morrison, set
forth above. Those reasons need not be repeated here, but
they are hereby incorporated by reference.
However, I find that Ricelli 's activity on behalf of Local
259 does not equal that of Morrison . But this does not alter
my conclusion that Ricelli was discriminatorily terminated.
In finding that Respondent was aware of Ricelli's support
of Local 259 I have not only relied on the Board's small plant
rule, but also on the fact, which I hereby find, that Parts
Manager Napolitano told Ricelli that the former had heard
that Ricelli attended a meeting of Local 259 . In this respect
I accept Ricelli 's version of this conversation . Even under
Napolitano's account of this talk with Ricelli, the former
admitted that he was "aware of the union meetings that the
men were going to" and that Ricelli once remarked to
Napolitano that he, Ricelli, attended a union meeting.
5. The termination of Lloyd Wallace
In my opinion Wallace was discharged for supporting Lo-
cal 259 and the reason given at the hearing for such action,
that is, a decrease in business , is a pretext . I so find. This
finding is based on the entire record and the subsidiary
findings narrated above relating to the termination of Lee
Lombardi except the finding that Lombardi was active on
behalf of Local 259.
The fact that Wallace did not vigorously espouse the cause
of Local 259, as did Lombardi, does not detract from the
finding that Wallace was discriminatorily discharged . This is
because all the other elements found demonstrating that
Lombardi was unlawfully terminated are equally applicable
to Wallace.
Further, I find that Wallace was discharged . Respondent's
evidence not consonant with this finding is not credited. And
I also find that when Wallace was discharged no explanation
was given to him as to why he was being released . All he was
told , when he asked President Vanella why, was, "I don't like
what's going on ... You know what I am talking about."
Insofar as Respondent's evidence is inconsistent with the
foregoing finding, I do not credit it. "The failure to give a
reason ... for the discharge of employees properly may be
VANELLA BUICK OPEL, INC
considered by the Board ... in determining the real motive
which actuated the discharge." Virginia Metalcrafters, Incor-
porated, 158 NLRB 958, 962. Courts have endorsed this
doctrine. N.L.R.B. v. Melrose Processing Co., 351 F.2d 693,
699 (C.A.8); N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d
275, 278 (C.A. 5). Accordingly, I find this lack of explanation
is some evidence of a discriminatory intent in discharging
Wallace.
6. The termination of Winfred D. Mallory
I find that Mallory was discharged for supporting Local
259 and that the explanation offered him to account for this,
i.e., "it's getting pretty slow," is a pretext. I find that he was
discharged on the basis of Respondent's insistence , which I
credit, that "Actually, Winfred Mallory was discharged on
September 18, 1970." See General Counsel's Exhibit 3, a
letter from Respondent to Region 22 of the Board. The ulti-
mate finding above is based on the entire record and the
ensuing subsidiary facts which I hereby find as facts:
a. Mallory signed a card for Local 259. Respondent had
knowledge of this by reason of the Board's small plant rule.
b. Respondent preferred Local 355 and displayed hostility
towards Local 259.
c. Only those supporting Local 259 were chosen for dis-
missal from Respondent's service.
d. Mallory was abruptly discharged at the peak of the
organizational drive of Local 259. In addition he was given
no notice that business was "getting slow" and that he could
expect to be terminated unless it improved. Actually, I find
that, as to the type of work Mallory was performing, business
was good., This finding emerges from the fact, which I hereby
find, that in the 2 weeks immediately preceding his discharge,
Mallory's compensation increased substantially over his prior
average weekly wage.
e. Finally, even though lawful cause may have existed for
Mallory's termination, I find that it was not the motivating
or substantial reason therefor. Rather, I find that the
predominant or overriding reason for Mallory's discharge
was his adherence to Local 259.
Since Mallory was illegally discharged, I find that he was
eligible to vote in the election, and I shall so recommend to
the Regional Director. It is elementary that employees dis-
criminatonly terminated may not be precluded from voting
in an election. Citation of authority therefor would be su-
pererogatory.
7. The discharge of Ronald Lombardi
The record persuades me, and I find, that Lombardi was
discharged for supporting Local 259, and that the reason
given him for such action, i.e., "it was slow," is a pretext to
disguise the true reason. While this ultimate finding is derived
from the entire record it also springs from the following
subsidiary findings, which I hereby find as facts:
a. Ronald is the son of Lee Lombardi, a prime mover in the
attempt to organize Respondent's employees. Thus it is rea-
sonable to infer-and I find-that Ronald was discharged to
discourage the protected activity of his father. Cf. American
Grinding & Machine Co., 150 NLRB 1357, 1370 (Alois Potts).
b. Ronald was abruptly discharged at the peak of the orga-
nizational campaign. Further, he was not warned that he
risked losing his job unless the "slow" conditions grew better.
Failure to warn under the circumstances is significant.
c. Ronald supported Local 259 and, for the reasons set
forth in connection with Respondent's knowledge of the sup-
port of Towns for said union, Respondent had knowledge of
Ronald's said support.
815
d. Respondent systematically laid off or discharged only
those who adhered to Local 259. In addition Respondent
preferred Local 355 and demonstrated hostility to Local 259.
e. Although Respondent contended "it was slow" in con-
nection with Ronald's work, the facts contradict this. I credit
Ronald that on September 3 and 4 he was instructed to report
for work at 8 a .m. because Respondent "needed him." Pat-
ently employees are not "needed " when work is "slow."
f. In any event, even if work was slow, I find that this was
not the substantial or motivating reason for Ronald's dis-
charge. Rather, I find that the substantial or motivating cause
behind his discharge, despite any slackening of work, was his
support of Local 259 and the fact that his father, Lee, was
very active on behalf of Local 259.
Since Ronald was discriminatorily discharged , I find that
he was entitled to vote in the election. Accordingly, I shall
recommend that Respondent's challenge to his ballot be over-
ruled and that said ballot be opened and counted.
8. As to giving the impression of surveillance
Paragraph 5 of the amended complaint alleges that Parts
Manager Napolitano informed employees that he knew that
Local 259 held a meeting attended by Respondent's em-
ployees. The only evidence pertinent to this issue is Ricelli's
testimony, which I credit, that Napolitano told the former
that Napolitano heard that Ricelli was present at a union
meeting.
In my opinion said remark by Napolitano hardly rises to
the stature of a coercive statement which interferes with or
tends to interfere with the right of employees to be free to
engage in union activity. I so find. In any event, I find that,
notwithstanding that this utterance may contravene Section
8(a)(1) of the Act, it is isolated-in fact it is the only 8(a)(1)
violation alleged-and, therefore, does not require a remedial
order to prevent its recurrence.
Accordingly, I shall recommend that this aspect of the
complaint be dismissed.
As stated above, I have made credibility findings based on
my observation of the witnesses. However; I have also relied
on certain inconsistencies in the testimony of Respondent's
witnesses in crediting the General Counsel's evidence rather
than Respondent's where their evidence clashed on material
issues. Two examples suffice.
a. President Vanella testified on direct that he made the
decision to lay off Towns, Lee Lombardi, Ricelli, Morrison,
Ronald Lombardi, Wallace, and Mallory. Nevertheless on
cross he changed this by stating that, as to Towns, Vanella
told Geise that "the shop had to be cut back and the overhead
had to be decreased," and that Geise thereafter made the
decision to lay off Towns.
But Geise testified that he made not only the decision to
lay off Towns, but also to terminate Morrison, Ronald Lom-
bardi, and Mallory. This divergence in testimony between
Vanella and Geise upon this salient issue has in part con-
vinced me not to credit them when the testimony of either
conflicted with the General Counsel's evidence.
b. Further, Napolitano insisted that he terminated Ricelli,
even though Vanella had previously testified that he had
decided to lay off Ricelli. This disagreement between
Napolitano and Vanella as to who determined to release
Ricelli to some extent entered into my appraisal of their
testimony insofar as it collided with that of the General
Counsel's witnesses.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
Those activities of Respondent set forth in section IV,
above, found to constitute unfair labor practices, occurring in
connection with its operations described in section I, above,
have a close, intimate, and substantial relation 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.
VI THE REMEDY
As Respondent has been found to have engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and that it take specific affirma-
tive action, as set forth below, designed to effectuate the
policies of the Act.
Since Respondent discriminated against Linzie Towns,
Eliso (Lee) Lombardi. Paul Ricelli, Orin Morrison, Ronald
Lombardi, Lloyd Wallace, and Winfred Mallory, by ter-
minating their employment, it will be recommended that Re-
spondent be ordered to offer each immediate and full rein-
statement to his former position, or if such is not available,
one which is subtantially equivalent thereto, without preju-
dice to his seniority and other rights and privileges. It will
further be recommended that the persons mentioned in the
preceding sentence be made whole for any loss of earnings
suffered by reason of the discrimination against them.
In making said persons whole Respondent shall pay to
each a sum of money equal to that which each would have
earned as wages from the date of his termination to the date
of reinstatement or a proper offer of reinstatement, as the case
may be, less his net earnings during such period. Such back-
pay, if any, is to be computed on a quarterly basis in the
manner established by F W. Woolworth Company, 90 NLRB
289, with interest thereon at 6 percent calculated according
to the formula set forth in Isis Plumbing & Heating Co., 138
NLRB 716. It will also be recommended that Respondent
preserve and upon reasonable request, make available to the
Board or its agents , all pertinent records and data necessary
to aid in analyzing and determining whatever backpay may
be due. Finally, it will be recommended that Respondent post
appropriate notices.
The discriminatory terminations go "to the very heart of
the Act." N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536
(C.A. 4); L. E. Johnson Products, Inc., 179 NLRB No. 10, fn.
1. Accordingly, the Board's Order should be broad enough
in scope to prevent further infraction of the Act in any man-
ner. I so recommend. Cf. R. & R. Screen Engraving, Inc., 151
NLRB 1579, 1587; A-ZMfg. & Sales, 177 NLRB No. 98, fn.
1.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW -
1. Local 259 and Local 355 are labor organizations within
the meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of Sec-
tion 2(2), and is engaged in commerce as defined in Section
2(6) and (7), of the Act.
3. By discriminating in regard to the tenure of employment
of those mentioned below in this paragraph, thereby dis-
couraging membership in Local 259, a labor organization,
Respondent has engaged in unfair labor practices condemned
by Section 8(a)(3) and (1) of the Act:
Eliso (Lee) Lombardi Lloyd Wallace
Paul Ricelli Linzie Towns
Orin Morrison Winfred Mallory
Ronald Lombardi
4. The foregoing unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
5. Respondent has not committed any other unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law, and
the entire record in this case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:'
ORDER
Respondent , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Local 259, or any other
labor organization , by discharging or laying off employees or
otherwise discriminating in any manner in respect to their
tenure of employment or any term or condition of employ-
ment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Offer the persons named below immediate and full
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 previously
enjoyed by them , and make each whole for any loss of pay
he may have suffered, with interest at the rate of 6 percent per
annum, by reason of Respondent 's discrimination against
him, as provided in the section above entitled "The Remedy":
Linzie Towns Ronald Lombardi
Eliso (Lee) Lombardi Lloyd Wallace
Paul Ricelli Winfred Mallory
Orin Morrison
(b) Notify immediately the above-named persons named if
presently serving in the Armed Forces of the United States,
of their right to reinstatement, upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
(c) Preserve and, upon reasonable request, make available
to the Board or its agents, for examination and copying, all
payroll records and reports and all other records necessary to
ascertain the amount, if any, of backpay due under the terms
of this Recommended Order.
(d) Post at its place of business at Plainfield, New Jersey,
copies of the notice marked "Appendix."' Copies of said
notice, to be furnished by the Regional Director for Region
22, after being signed by a duly authorized representative of
Respondent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
' 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.
I 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
VANELLA BUICK OPEL, INC. 817
thereafter , in conspicuous places, including all places where
notices to employees are customarily displayed . Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered , defaced, or covered by any other material.
(e) Notify the Regional Director for Region 22, in writing,
within 20 days from receipt of this Decision , what steps have
been taken to comply herewith.'
IT IS ALSO RECOMMENDED that the complaint be dis-
missed insofar as it alleges unfair labor practices not found
herein.
' In the event that this recommended Order is adopted by the Board,
after exceptions have been filed, this provision shall be modified to read.
"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."
REPORT ON CHALLENGES IN THE
REPRESENTATION CASE
The representation case (Case 22-RC-4745), which
heretofore has been consolidated with the complaint cases, is
hereby severed and remanded to the Regional Director for
Region 22 for further processing.
It is recommended that the Regional Director adopt the
foregoing findings pertaining to the terminations of Ronald
Lombardi and Winfred Mallory. Accordingly , it is further
recommended that the Regional Director find that Ronald
Lombardi and Winfred Mallory were eligible to vote as em-
ployees of Respondent on the date of the election and that the
challenges to their ballots be overruled.