Wagner Lincoln Mercury, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1964

149 N.L.R.B. 1067 (N.L.R.B. 1964)

WAGNER LINCOLN MERCURY, INC. 1067
Wagner Lincoln Mercury, Inc. and International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers -of
America, Local 377
Al Wagner - Motor Sales , Inc. and International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, Local 377. Cases Nos. - 8-CA-3467 and 8-CA-3468.
November 24, 1964
DECISION AND ORDER
On September 3,1964, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, and
recommending that they cease and desist therefrom'and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondents had not engaged in other
unfair labor practices alleged in the complaint and recommended dis-
missal of those allegations. Thereafter, the General Counsel filed
exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at -the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Recommended
Order of the Trial Examiner, and orders that Respondents Wagner
Lincoln Mercury, Inc., and Al Wagner Motor Sales , Inc., Youngs-
town, Ohio, their officers , agents, successors , and assigns , shall take
the action set forth in the Trial Examiner 's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These consolidated cases, heard before Trial Examiner Frederick U. Reel at Youngs-
town, Ohio, on May 18-19, 1964,1 pursuant to charges filed the preceding March 31
and a complaint issued April 16, present questions as to whether Respondents in an
effort to thwart the organizational efforts of their employees engaged in various acts
'All dates herein refer to 1964 except where otherwise noted.
149 NLRB No. 104.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of illegal interference, restraint, and coercion, and discharged several employees for
union activity. Upon the entire record, and after due consideration of the briefs filed
by General Counsel and Respondents, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS, AND THE LABOR ORGANIZATION INVOLVED
Both Respondents are Ohio corporations, each of which is engaged in Youngstown
in selling and servicing new and used automobiles, and each of which is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act to an extent which
more than meets the Board's jurisdictional standards. Al Wagner is president of
both corporations, but is particularly active at Respondent Al Wagner Motor Sales,
Inc., herein called Motor Sales. The general manager at Wagner Lincoln Mercury,
Inc., herein called Lincoln Mercury, is William Heim, who is in the process of pur-
chasing that business from Wagner, and is in charge of its operations. The Charging
Party, herein called the Union, is a labor organization within the meaning of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. Violations alleged at Motor Sales
1. Interference, restraint, and coercion
Economic difficulties which Wagner was experiencing in the latter part of 1963 led
him to take certain economy measures, including an announcement to the employees
at Motor Sales that he was going to eliminate paid vacations. Resultant employee
dissatisfaction and unrest led to a meeting of Motor Sales employees with Wagner
early in 1964. At this meeting, called at the employees' desire, the men discussed
working conditions, and one of their number, Bill Smith, observed to Wagner that the
men needed a union. Wagner replied that he would shut the doors before he would let
a union come in. Notwithstanding this threat, and notwithstanding a slight increase
in compensation which Wagner granted shortly after this meeting, the employees, after
further discussions among themselves, decided to seek union representation. After
an abortive effort to interest another union in organizing them, they turned to the
union here in question, and an organizing drive commenced covering the employees of
both Respondents as well as of a third automobile dealership, separately incorporated,
but, like both Respondents, owned by Wagner. Union representatives called on
Wagner on February 7 to advise him that they represented his employees at the three
locations. A few days prior thereto, however, Wagner in a conversation with
employee Martin Snyder told Snyder that the Union was coming in, that "he wasn't
going to cater to a lot of nonsense," that he was "too old to handle anything in such a
situation like that," and that he was "going to get rid of the place."
A few days after the Union's request for recognition, Wagner discussed the Union
with employee McBride, observing that he did not think McBride had the money to
pay union dues, and therefore believed McBride had not joined the Union. (McBride,
who had joined, presented a discreet silence.) Wagner added that he might lay
McBride off "for a week or two because he didn't know which way this thing was
going to go."
About the same time Wagner asked employee Clarke where the latter's union button
was, and why Clarke "didn't have a red banner on the street parading up and down in
front of the building?" In the same conversation Wagner observed that he had
already closed the trim shop and contemplated closing other unprofitable departments.
Following the layoffs or discharges discussed below, the employees at Motor Sales
went on strike. In the course of the strike Wagner approached employee Clarke, who
was on the picket line, in an effort to ascertain what Clarke "had against" Wagner.
When Clarke mentioned two respects in which he thought Wagner had treated him
shabbily, Wagner suggested that Clarke return to work, stating: "We will see what we
can do about it. I think we could get this straightened out." Clarke, however,
declined to return while his fellow employees were still picketing. Some days later
a number of employees abandoned the strike and returned to work In explaining to
some of the returning employees why the strike had failed, Wagner remarked that a
day or two before he had telephoned one of the strikers on whose house he held the
"land contract" and had told the employee that Wagner "wasn't telling him which way
to go" but that the employee had 24 hours in which to make up his mind to return to
work, after which Wagner would send him a "legal notice "
2. The discharges or layoffs
General Counsel alleges that Motor Sales unlawfully discriminated against four
employees, Martin Snyder, Lloyd Moncrief, Dominic Piscitani, and Steve Kwiecinski.
WAGNER LINCOLN MERCURY, INC. 1069
The facts with respect to the discharge or layoff of each of these may be summarized
as follows:
Snyder was the only employee in the trim shop , where he was engaged in repairing
car roofs and upholstering new and used cars As noted above , Wagner discussed the
impending union drive with Snyder early in February . A few days later Wagner told
Snyder that Snyder was to be laid off as Wagner was going to get rid of the trim shop.
Snyder's last day of work was Saturday , February 8, although he was notified of his
impending layoff the day before . In fact, when the union representatives called on
Wagner on February 7 to request recognition , Wagner advised them that he was laying
Snyder off that day. Since Snyder's departure , Wagner has employed a woman 2 or
3 days a week to work in the trim shop.
Moncrief , Piscitani , and Kwiecinski were all laid off on Tuesday , February 11, in
the middle of the pay period . Moncrief was the junior employee in the parts depart-
ment. In midafternoon of February 11, Wagner apprised him of the layoff, stating
that because business was slow, Moncrief would be laid off for 2 or 3 weeks. He has
not been recalled, and has not been replaced.
Piscitam and Kwiecinski were employed in the body shop at the time of their layoff
on February 11; Kwiecinski , who has since been recalled to work or rehired, did not
testify. According to Piscitani , Wagner spoke to Kwiecinski in the morning of Febru-
ary 11 and then, coming to Piscitani , stated, "I am telling you the same thing I'm
telling Steve . I am closing off the body shop . I hope you get a better job someplace
else, of you can get a red flag and parade in front of the building " At the time of the
hearing, 3 months after these events , Kwiecinski had recently been reemployed, and
at least two other men were also employed in the body shop . Between February 11
and the hearing , according to Wagner's testimony , he had as many as four men work-
ing in the body shop.
In explanation of the layoffs or discharges Wagner testified that business conditions
had been leading him to retrench for some time, that the services of some office
employees and of certain supervisory personnel had already been dispensed with, and
that his actions in February were a continuation of this policy. More specifically
with respect to Snyder, Wagner testified that he had insufficient work to keep Snyder
busy, and with respect to Moncrief that a decision had been reached before Christmas
to let go the junior man in the parts department . As to the body shop , Wagner's
testimony is somewhat inconsistent with the brief subsequently filed in his behalf.
The latter states that "The company decided to close down its body shop because it
could not be operated at a profit ," and the men "were therefore discharged ." Accord-
ing to Wagner, however , he merely laid off the body shop men for want of work, and
he would have taken Kwiecinski back the very next morning when some work came
in but the men were already on strike. Wagner testified that he had asked Kwiecinski
to return to work the same day Kwiecinski was laid off.
Although the strike which began February 12 in protest of the layoffs was unsuc-
cessful , at least one Motor Sales employee , John Smith , still considered himself on
strike at the time of the hearing.
B. Violations alleged at Lincoln Mercury
Late in January or early in February, Wagner alerted Heim to the possibility that
the Union might be organizing the Lincoln Mercury employees . On the evening of
February 4, in the course of discussing other matters with employee Edward Rogers,
Heim inquired as to the extent of employee interest in the Union , and Rogers expressed
doubt that Heim's employees were interested . The next day, however , Rogers signed
a union card. On the afternoon of February 5, Heim stated to Rogers . "I hear that
seven members of this place joined the Teamsters Union. And that you are one of
them. If I find out that that is true, you won't work one more day."
On February 7 Wagner called Heim to advise him of the Union's claim to represent
the employees at Motor Sales , and to inquire about the extent of union interest at
Lincoln Mercury. At Wagner's suggestion , Heim decided to call a meeting of his
employees to ascertain their views . A few minutes after Heim notified the employees
of the impending meeting, he received a telephone call from a union representative
advising him that they wanted to attend the meeting. Realizing that the Union must
have learned of the meeting from one of the employees , and believing ( quite correctly)
that the information reached the Union by a telephone call from the telephone located
in the body shop where Rogers was at work, Heim went to the area where Rogers
worked and found him in the washroom , preparing for the meeting . Heim grabbed
Rogers by the shoulders , and starting hitting him, screaming the while: "You lied to
me, you lied to me," and swearing at Rogers . Rogers extricated himself from Heim's
grasp and replied to Heim 's invective in kind, although admitting his union member-
ship. Heim as he left the room warned Rogers he "had better watch [his] step from
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
now on," and particularly to observe the shop hours of 8 a.m. to 5 p.m . Later that
morning Service Manager Barone relieved Rogers of his key to the shop and told
him his "new working hours are 8 to 5."
The next morning Rogers noticed that the telephone he had used to call the Union
had been disconnected from the wall . Heim spoke to him that day for about half an
hour, trying, without success, to persuade Rogers to abandon the Union . The follow-
ing Tuesday , February 11, Heim discharged Rogers, explaining that the body shop was
unprofitable and was being abolished . Heim admitted on the witness stand that
Rogers' union activity had "something to do with " his discharge.
Earlier that same Tuesday , Heim had discharged William Weems, his parts man
Heim had called Weems to the office late in the preceding week to inquire if Weems
was a member of the Union . When Weems replied in the affirmative , Heim attempted
to persuade him to change his mind. That conversation terminated with Heim's telling
Weems to think the matter over and let Heim know at the beginning of the following
week. On Monday , February 10, Heim approached Weems at the parts counter and
asked if Weems had made up his mind . Weems replied that he wanted to be in
the Union . According to Weems' testimony (which I credit ; the earlier events of
February 10 are testified to by both Heim and Weems ), the conversation continued
as follows:
He asked me why I wanted to screw his family. I told him that that was ridicu-
lous. I have no feelings towards his family . It is business. He told me not to
screw up. He said , "This was a warning."
The next day Heim discharged Weems.
The episode immediately precipitating the discharge arose when Heim noticed early
in the morning that a certain advertising sign ( the "monthly special") was not in posi-
tion. He inquired of Weems , who replied that the service manager had directed its
removal. Heim told Weems that it was the latter's responsibility to see that the sign
was up, and directed him to post it. (Weems stated on the witness stand, in a manner
which convinced me of the truth of his testimony , that he had never theretofore put
up the monthly special sign and had never been told it was part of his job to do so.)
Weems was in the act of complying with Heim's directive, but according to Heim was
displaying a "sulky attitude ." Heim admonished him for his "sour face ." According
to Weems, Heim said "to smile or he would fire me" and asked whether Weems wanted
to be fired right then or that night . Weems testified that he replied , "Now is as good a
time as any," and Heim discharged him on the spot . According to Heim, Weems said:
"If you don 't like what I am doing , why don't you fire me ," and Heim did . At that
time, according to Heim, Weems said that Heim would be sorry , to which Heim
replied, "If you are referring to the union activity , Bill, I have no thought about this
whatsoever ." As a witness , however, Heim admitted that Weems ' union membership
"could have been" one of the things in Heim's mind , although the discharge was
accomplished "on the spur of the moment."
In further explanation of the discharge of Rogers , Heim testified that he was dis-
satisfied with Rogers ' longstanding practice of coming in late in the morning and
working late at night, and also that the body shop had been unprofitable for some time
(a condition Heim attributed in part to faults of Rogers ) so that Heim had decided a
week before the discharge to close it. Confronted with a large newspaper advertise-
ment on behalf of Lincoln Mercury which had appeared on Sunday , February 9, and
which, inter alia, extolled the work of Rogers and the body shop services offered by
Lincoln Mercury , Heim explained that the material for the advertisement had been
prepared some time before. As to Weems, Heim complained that Weems had failed
to set up a certain inventory control system as Heim had directed , that he was slack in
preparing parts to be returned to the manufacturer , and that he had worked excessive
overtime , unreasonably padding his income.
C. Concluding findings
On the facts found above,2 there can be little doubt that both Respondents engaged
in interference , restraint , and coercion violative of Section 8 (a)( I) of the Act. In
this category , I include Wagner's threats to close if a union came in, his interrogation
2 To some extent those findings depend on the resolution of conflicting testimony. I
have in several instances rejected denials of Wagner and Heim and credited employee
testimony to the contrary These credibility resolutions rest on admissions of Wagner
and Heim, inconsistencies between their testimony and their affidavits, the demeanor of
the witnesses , and (particularly in the case of Heim, who assaulted Rogers and admitted
losing his temper at Weems ) the consistency between the employee testimony and the
avowed or openly displayed attitude of management
WAGNER LINCOLN MERCURY, INC. 1071
of employees as to their union membership, his suggestion to Clarke that benefits
might attend Clarke's abandonment of the strike, and his threat to.foreclose on a land
contract if the employee-debtor exercised his Section 7 right to strike. Similarly,
Heim's threats to, and interrogation of, Weems and Rogers, detailed above, infringed
Section 7 rights in violation of Section 8 (a) (1).
With respect to the discharges , there can be little doubt that union activity was one
factor at the very least, in the discharges of Weems and Rogers. N.L.R.B. v. James-
town Sterling Corp., 211 F. 2d 725, 726 (C.A. 2). Indeed Heim admitted as much
in both instances , somewhat more grudgingly in Weems' case . Heim's extreme irri-
tation at Rogers ' union activity manifestly weighed far more heavily in the decision
to discharge him midway in the pay period than Heim's irritation over Rogers' work
hours or other practices Heim had accepted for many months. I do not credit
Heim 's statement that he had made up his mind a week earlier to close the body
shop. This would be inconsistent with a precipitate midweek discharge , is hope-
lessly at odds with the advertisement run only 2 days earlier (after the alleged deci-
sion to discontinue), and is unsupported by corroborative testimony as Respondent
failed to call as a witness the service manager to whom the alleged decision to close
was allegedly communicated . Cf. N.L.R.B. v. Sam Wallick , et al. d3b/a Wallick and
Schwalon Company, 198 F. 2d 477, 483 (C.A. 3). Similarly as to Weems, the
Company's alleged dissatisfaction with his wages and with his lack of progress in
the inventory matters played at most a minor role in his discharge, which according
to Heim was unpremeditated. We are left with the question whether the discharge
should be attributed to a loss of temper arising out of the sign incident , or whether
Weems' open support of the Union after Heim had tried to talk him out of it was a
factor in the episode. Even Heim could not fully deny that the union matter was in
his mind, as indeed is all but self-evident in view of the timing of the affair. To be
sure, Weems' union membership conferred no immunity against discharge for cause,
or, for that matter, for discharge arising out of whim, irritation, or mistake. But
the statute confers immunity against discharge for union activity. The timing of the
discharge (the morning after Weems revealed his determination to stay in the Union,
and only a few days after Heim had learned of the union activity and indicated deep
resentment thereof) coupled with the fact that Weems was at worst "sulky" and was
complying with Heim 's directions , leads me to find that Heim's union animus played
a major role in his discharge of Weems.
A far closer question is presented by the discharge of Snyder. Although there is
some evidence that Wagner was disturbed by the reports of union activity, there is
also evidence that the work in the trim shop was insufficient to warrant Snyder's
retention , and the direction to discharge him antedated the first interview between
Wagner and the union representatives . Although Wagner in his earlier discussion
with Snyder had intimated that advent of the Union would cause a curtailment or
abandonment of operations, I find that General Counsel failed to carry his burden
of proof as to Snyder. I therefore recommend dismissal of the complaint as to him.
Moncrief, Piscitani, and Kwiecinski were separated from the payroll on Tuesday,
February 11, the same day that Heim discharged Rogers and Weems. As to Mon-
crief, Wagner claimed that a decision to discharge him was made the preceding
December. But if that be true, why was he kept on the payroll until the middle of
the first pay period in February, and then discharged, without advance warning, on
the second work day after the Union requested recognition , As to Piscitani and
Kwiecinski , Wagner claimed they were laid off for insufficient work (his counsel now
claims they were discharged because of a permanent closedown of the body shop).
But Wagner 's statement that they could "get a red flag and parade in front of the
building" goes far to suggest that organizational activity was prominent in Wagner's
mind at the time. In this connection it should be noted that Wagner had parried the
Union 's recognition request on February 7, and that he was scheduled to meet again
with the Union and its counsel that week. Wagner would not be the first employer
who tried to nip union organization by discharging employees . To be sure, there is
no evidence that Wagner knew Moncrief , Piscitani, and Kwiecinski were in the
Union; the union spokesman had claimed to represent approximately 90 percent of
the people in his conversation with Wagner on February 7. On the other hand,
Wagner was plainly speculating as to which of his employees had joined; so much is
established by his conversation with McBride in which Wagner opined , wrongly,
that McBride had not joined, and also observed that layoffs might ensue until Wag-
ner could tell "which way this thing was going to go."
The various cases cited by General Counsel and the Company contribute little to
resolution of the question in this case. Unlike the Sixth Circuit's Mahon, Adkins,
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Lassing cases cited by the Company,3 we have here "evidence of antiunion senti-
ment and animosity" (quoting from N.L.R.B. v. E. S. Kingsford, d/bla Kingsford
Motor Car Co., 313 F. 2d 826, 831 (C.A. 6), another case cited by Respondent).
And unlike Kingsford we have no closing of the body shop as claimed in counsel's
brief; on the contrary the body shop was at full strength by the time of the hearing
and Wagner had been operating the body shop with replacements even during the
strike which followed the day after these discharges. On the other hand, Forest
Dodge, Inc., 145 NLRB 1463, cited by General Counsel is distinguishable in that
here the discharges effected a true economy, and-even more important-the record
there established that the employer knew that all the employees had joined the union,
and his action was unquestionably the direct result of that knowledge.
The proper test, in my view, is that enunciated by the Second Circuit in N.L.R.B. v.
Savoy Laundry, Inc., 327 F. 2d 370, 371, where the court observed that the "crucial
factor is not whether the business reasons cited by [the employer] were good or bad,
but whether they were honestly invoked and were, in fact, the cause of the [discharge]."
And later in the opinion the court emphasized (327 F. 2d at 372): "We are not say-
ing that the economic reasons offered by an employer must meet the approval of a
governmental agency ... or even that these economic justifications must be econom-
ically sound. Rather, we are saying merely that these economic considerations must
be honestly invoked, and that an employer may not attempt to disguise an antiunion
motive by speaking the language of economic necessity."
In the instant case I am persuaded that while Wagner was undergoing financial
difficulties and was retrenching (cf. Snyder's case, which I would dismiss), the timing
of the discharges or layoffs on February 11 and his statements at that time reflect
that antiunion motives played a part in his actions. Cf. Jamestown Sterling, supra,
211 F. 2d at 726. Accordingly, I find the discharge of Moncrief and the discharge or
layoff of Piscitani and,Kwiecinski violative of Section 8 (a) (3) and (I) of the Act.
The instant case is not unlike N.L.R.B. v. Ellis and Watts Products, Inc., 297 F. 2d
576, 577, where the Sixth Circuit rejected an employer's contention "that the layoffs
were made on account of economic reasons, i.e., its poor financial condition." The
court noted that "this would be justification for the layoffs if it were the real reason,"
but observed (in language applicable here) that "the employer did not take such
action until after the union had requested a meeting with it" and that "the union
had authorization cards signed by about 95 percent of the employees and the employer
was advised of this fact." In Ellis and Watts, the court admonished the Board that in
considering backpay due employees "the Board should take into account the prob-
able duration of their employment which the financial condition and business of the
employer would have justified if the layoffs had not been made." This aspect of the
instant case is discussed in "The Remedy," infra.
Finally, the strike on February 12 was plainly in protest of the discharges at Wag-
ner's two corporations. The discharges, or at the very least some of them, were
unfair labor practices and the strikers therefore are entitled to reinstatement on
application.
III. THE REMEDY
The widespread violations of the Act and the strong antipathy which Respondents
have exhibited to the employees' efforts to organize call for a broad cease-and-desist
order. Affirmatively, I shall recommend that Rogers, Weems, and Piscitani be rein-
stated with backpay. Kwiecinski has been reinstated, and moreover was offered
employment the day following his layoff, when, however, he became an unfair labor
practice striker. He is therefore entitled to backpay only for the period between
the time he abandoned the strike and applied for reinstatement, and the time he was
rehired. Moncrief's case poses a difficult problem (cf. Ellis and Watts, supra), for
he has not been replaced and it appears that Motor Sales has no present need of the
services of another parts clerk. I shall therefore recommend that he be placed on a
preferential hiring list, and also that he be given backpay for the time between his
discharge on February 11 and the time he would have been laid off for nondiscrim-
inatory reasons. This latter date may be determined in compliance negotiations or,
if necessary, in formal backpay proceedings. See N.L.R.B. v. Cambria Clay Prod-
ucts Co., 215 F. 2d 48, 56 (C.A. 6). As the strike was an unfair labor practice strike,
I shall recommend that any employees still on strike be reinstated upon their appli-
cation and in the event of a failure to reinstate them they shall receive backpay com-
3 N L R.B v. The R. C. Mahon Company, 269 F. 2d 44; N.L.R.B. v. Adkins Transfer
Company, Inc., 226 F. 2d 324; N.L.R.B. v. J. M. Lansing et al. d/b/a Consumers Gasoline
Stations, 284 F. 2d 781, cert. denied 366 U.S. 909.
WAGNER LINCOLN MERCURY, INC. 1073
mencing 5 days after their application for reinstatement. Finally, I shall recommend
the posting of appropriate notices and other provisions designed to implement the
backpay remedy. All backpay due hereunder shall be computed in accordance with
the formulas set forth in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondents Lincoln Mercury and Motor Sales, by interrogating their employ-
ees as to their union membership and by threatening them with reprisal for union
activity, have engaged in unfair labor practices affecting commerce within the mean-
ing of Sections 8(a) (1) and 2(6) and (7) of the Act.
2 On February 11, 1964, Respondent Lincoln Mercury by discharging Edward
Rogers and William Weems, and Respondent Motor Sales by discharging Lloyd Mon-
crief and by discharging or laying off Dominic Piscitani and Steve Kwiecinski, engaged
in unfair labor practices affecting commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Accordingly, on the basis of the foregoing findings and conclusions and on the
entire record, I recommend, pursuant to Section 10(c) of the Act, that Respondent
Wagner Lincoln Mercury, Inc., and Respondent Al Wagner Motor Sales, Inc., and
their respective officers, agents, successors, and assigns, shall:
1. Cease and desist from.
(a) Discriminating against any employee for having engaged in activity on behalf
of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 377
(b) Interrogating or threatening employees with respect to their union activities,
or in any other manner interfering with, restraining, or coercing employees in the
exercise of their rights under Section 7 of the Act
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Offer to reinstate William Weems, Edward Rogers, and Dominic Piscitani to
their former or substantially equivalent positions without prejudice to their seniority
or other rights and privileges, place Lloyd Moncrief on a preferential hiring list and
offer him employment in the parts department at Al Wagner Motor Sales, Inc , when
the first vacancy occurs in that department, and make whole Weems, Rogers, Mon-
crief, Piscitani, and Steve Kwiecinski, in the manner described in the portion of the
Trial Examiner's Decision entitled "The Remedy," for any loss of earnings suffered
by reason of the discrimination against them.4
(b) Notify any of the above-described employees who are serving in the Armed
Forces of the United States of their right to full reinstatement or, in the case of Lloyd
Moncrief, of his right to preferential hiring, upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
(c) Upon application, reinstatement to their former or substantially equivalent
positions any employees who went on strike on February 12, 1964, and who have
remained on strike since that date, and in the event of failure to do so within 5 days
after their respective applications, make them whole in the manner set forth in the
section entitled "The Remedy" of the Trial Examiner's Decision.
(d) Preserve and, upon request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other recoids necessary to analyze the
amount of backpay due under the terms hereof.
(e) Post at their respective premises in Youngstown, Ohio, copies of the attached
appropriate notices marked "Appendix A" and "Appendix B," respectively.5 Copies
4 The provisions of this Recommended Order relative to Weems and Rogers apply only
to Wagner Lincoln Mercury, Inc, its officers, agents, successors, and assigns. The pro-
visions of this Recommended Order relative to Moncrief, Piscitanr, and Pwiecinski apply
only to Al Wagner Motor Sales, Inc , its officers, agents, successors, and assigns
5In the event that this Recommended Order is adopted by the Board, the words "as
ordered by" shall be substituted for "as recommended by a Trial Examiner of" in the
notices In the further event that the Board's Order be enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order of" shall be inserted immediately following "as ordered by".
7 70-076-6 5-v of 149-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the appropriate notice, to be furnished by the Regional Director for Region 8,
shall, after being duly signed by Albert Wagner in the case of Al Wagner Motor
Sales, Inc, and by both Albert Wagner and William Heim in the case of Wagner
Lincoln Mercury, Inc., be posted immediately upon receipt thereof, and be main-
tained for a period of 60 consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by each Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(f) Each Respondent shall notify the Regional Director for Region 8, in writing,
within 20 days from the date of the receipt of this Decision , what steps it has taken
to comply herewith.c
s In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read "Notify said Regional Director , in waiting , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board, we
are posting this notice to inform our employees of the rights guaranteed them in the
National Labor Relations Act:
WE WILL offer Edward Rogers and William Weems their former jobs and pay
them for wages they lost since February 11, 1964.
ALL OUR EMPLOYEES have the right to join or assist International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , Local 377 or
any other union
WE WILL NOT question them as to whether they support a union , or threaten
them or discharge them for doing so, or interfere with them in any way because
of their union activity
WAGNER LINCOLN MERCURY, INC,
Employer.
Dated-- ----------------- By-------------------------------------------
(Representative ) ( Title)
-------------------------------------------
(Representative) ( Title)
NoTE -We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces
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
Employees may communicate directly with the Board 's Regional Office , 720 Bulk-
ley Building , 1501 Euclid Avenue, Cleveland , Ohio , Telephone No. Main 1-4465, if
they have any questions concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board, we
are posting this notice to inform our employees of the rights guaranteed them in the
National Labor Relations Act:
WE WILL offer Dominic Piscitani his former job and pay him for wages he
has lost since February 11, 1964.
WE WILL offer Lloyd Moncrief the first available job in the parts department,
and pay him for any wages he lost between February 11, 1964, and the date he
would have been laid off in the normal course of business.
WE WILL pay Steve Kwiecinski for any wages he lost between the date he
applied for work after going on strike and the date he returned to work.
ANY EMPLOYEE who has been on strike since February 12, 1964, will be rein-
stated upon his application.
ALL OUR EMPLOYEES have the right to join or assist International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America, Local 377,
INT'L ASSN. OF HEAT & FROST INSULATORS, LOCAL 53 1075
or any other union .. WE WILL NOT question them as to whether they support a
union, or threaten them or discharge them for doing so, or interfere with them
in any way because of their union activity.
AL WAGNER MOTOR SALES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify Piscitani and Moncrief if presently serving in the Armed
Forces of the United States of their right to full reinstatement , or preferential hiring,
respectively , upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948 , as amended , after discharge
from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, 720 Bulk-
ley Building , 1501 Euclid Avenue, Cleveland , Ohio, Telephone No. Main 1-4465, if
they have any questions concerning this notice or compliance with its provisions.
International Association of Heat and Frost Insulators and As-
bestos Workers , Local No. 53 and Reilly-Benton Company, Inc.
Case No. 15-CC-204. November 25, 1964
DECISION AND ORDER
On July 15, 1964, Trial Examiner James F. Foley issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices alleged in the complaint
and recommending that it cease and desist therefrom, and take cer-
tain affirmative action as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case, including the Trial Examiner's Decision,
the exceptions, and the brief, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner, and orders that the Respondent,
International Association of Heat and Frost Insulators and Asbestos
149 NLRB No. 102.