Winer Motors, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1982

265 N.L.R.B. 1457 (N.L.R.B. 1982)

WINER MOTORS, INC.
Winer Motors, Inc. and Brewery and Soft Drink
Workers, Liquor Drivers, and New & Used Car
Workers, Local 1040. Cases 39-CA-90, 39-
CA- 180, 39-CA-212, and 39-CA-249
December 16, 1982
DECISION AND ORDER
On June 3, 1981, Administrative Law Judge
James T. Youngblood issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief, a motion to strike
Respondent's exceptions, and a supporting brief.
Respondent subsequently filed an answer to the
General Counsel's motion to strike.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, find-
ings,2 and conclusions s of the Administrative Law
Judge to the extent consistent herewith. We have
also decided to modify his remedy,4 and to adopt
his recommended Order, as modified herein.
We find merit in Respondent's exception stating
that the Regional Director for Region 2 acted con-
trary to the limitations period set forth in Section
10(b) of the Act5 when, on April 24, 1980, she re-
voked her earlier approval of the withdrawal of
the charge in Case 2-CA-16547,6 and reopened the
matter for further investigation into alleged dis-
criminatory discharges occurring on June 19, 1979.
Although the original charge in that case was
timely filed on June 25, 1979, we hold that such a
I In the General Counsel's brief in support of the motion to strike Re-
spondent's exceptions the General Counsel asserts that Respondent's ex-
ceptions lack the specificity necessary under Sec. 102.46(b) of the Nation-
al Labor Relations Board Rules and Regulations. Series 8, as amended.
We find no merit in this contention.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Prducts
Inc., 91 NLRB 544 (1950). enfd. 118 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no bais for reversing his findings.
' In adopting the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 9(aXI) of the Act as a result of certain statements
made by Matthew Corvo in April 1980, we note that Respondent has ad-
mitted in its answer to the consolidated complaint herein that Corvo is its
agent and director of operations.
4 In computing backpay awards, it is necessary to provide the interest
rationale as set forth in Isis Plumbing A Heating Ca, 138 NLRB 716
(1962).
Sec. 10(b) of the Act contains the proviso:
That no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with
the Board and the service of a copy thereof upon the person against
whom such charge is made, unless the person aggrieved thereby was
prevented from filing such charge by reason of service in the armed
forces, in which event the six-month period shall be computed from
the day of his discharge ...
a The withdrawal of the charge was based on the recommendation of a
Board agent. The Regional Director had approved the withdrawal on
August 8. 1979.
265 NLRB No. 185
charge, subsequent to its withdrawal by the Charg-
ing Party, may not thereafter be reinstated beyond
the normal 6-month period prescribed in Section
10(b) of the Act.
In examining this issue the Administrative Law
Judge noted that in Koppers Company, Inc., Forest
Products Division, 163 NLRB 517 (1967), the Board
expressly held that a respondent had the right
under the statute to be assured that, while no
charge was on file, it would not be held liable for
activities occurring more than 6 months in the past.
In that decision, the Board held that to allow a
withdrawn charge to be revived beyond that 6-
month period would amount to a circumvention of
Section 10(b).
However, the Administrative Law Judge found
that he was bound by exceptions to this clear rule
set forth in California Pacific Signs, Inc., 233 NLRB
450 (1977), and Silver Bakery of Newton, 150 NLRB
421 (1964), enforcement denied 351 F.2d 37 (lst
Cir. 1965). In Silver Bakery the Board examined the
equities in a case where a Board agent had pro-
cured a charging party's agreement to withdraw
charges based on the agent's erroneous advice that
there was insufficient basis for the Board to assert
jurisdiction in that proceeding. The Board held
that Section 10(b) related only to the actual filing
of charges, and that equitable considerations sup-
ported the General Counsel's decision to revoke his
consent to the withdrawal of charges, notwith-
standing that the case was reopened more than 6
months after the alleged unlawful conduct. In Cali-
fornia Pacific Signs the Board held that Section
10(b) could not be construed to prevent the Gener-
al Counsel from reinstating a dismissed charge
more than 6 months after the alleged misconduct.
The Board found that the General Counsel relied
on newly discovered evidence and therefore did
not abuse his discretion in reinstating the charge.
Relying on these decisions, the Administrative Law
Judge considered the equities underlying the Gen-
eral Counsel's decision to reinstate the charge 10
months after the alleged unlawful conduct, and on
that basis found that the Regional Director did not
abuse her discretion in reinstating the charge and
causing a complaint to issue which included such
allegations.
In reexamining the General Counsel's authority
to reinstate timely filed charges subsequent to the
normal expiration of the 6-month limitations
period, we are guided by the Board's longstanding
recognition of the proviso in Section 10(b) as being
a 6-month statute of limitations. 7 Where such a
I Cathey Lumber Co. 86 NLRB 157 (1949), enfd. 185 F.2d 1021 (5th
Cirt. 1951). vacated on other grounds 189 F. 2d 428.
1457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear limitations period has been created by Con-
gress, we find that the Board exceeds its authority
to allow the General Counsel to ignore such a limi-
tations period on equitable grounds. In reaching
this conclusion, we agree with the First Circuit's
assessment when it denied enforcement of our
Order in Silver Bakery that reinstatement of charges
beyond the 10(b) period based on equitable consid-
erations was created out of whole cloth and that:
From the standpoint of respondents, for whom
section 10(b) was enacted, we can think of no
good reason why the mere filing of a charge
which is withdrawn with the consent of the
Board, so that no proceedings are pending,
should leave in the Board a roving discretion
to determine that so-called equities warrant the
reinstitution of the proceedings without limit
of time. The fact that the Board may feel that
its discretion is benignly exercised cannot
answer the clear purpose of a statute of limita-
tions. [351 F.2d at 39.]
Accordingly, we find that the Board's allowance
for reinstatement of withdrawn charges for equita-
ble reasons is without legal justification and is con-
trary to the principles set forth in Koppers Compa-
ny, as discussed above.8 Although we are mindful
that denying reinstatement of charges beyond the
6-month period precludes our consideration of al-
leged unfair labor practices occurring prior to that
period, we consider our sympathies in that regard
an insufficient basis to restrike the balance estab-
lished by Congress when it added the proviso to
Section 10(b). Accordingly, we hereby overrule
Silver Bakery. Our dissenting colleagues criticize
what they consider a "mechanistic application" of
the 6-month limitation contained in Section 10(b).
Indeed, a review of past holdings reveals that con-
8 Chairman Van de Water and Member Hunter, however, find no
rational basis for distinguishing between a withdrawn and dismissed
charge. In both cases, the charge has been disposed of with the approval
of the General Counsel and has, therefore, ceased to exist. Indeed, in
many cases a charge is withdrawn only after the General Counsel has
informed the Charging Party that, if not withdrawn, it will be dismissed.
The fact that a dismissal is the product of a unilateral decision of the
General Counsel does not create any power to extend the limitation con-
tained in Sec. 10(b). Accordingly, in their view the principle expressed in
California Pacific Signs, Inc., is incorrect and they would overrule that
case.
sistency of rationales or result,' 0 whether "mecha-
nistic" or otherwise, has not been a hallmark of the
Board's treatment of these cases. Thus, today our
colleagues can only explain these results simply by
stating that "the Board has consistently approved
reinstatement of withdrawn charges where the eq-
uities warranted it .... [but] [i]n certain situa-
tions, the equities did not warrant reinstatement of
the withdrawn charge."" Our dissenting col-
leagues misconstrue our holding in this case and at-
tempt to apply our decision here to cases in which
it is clearly inapplicable. We agree with the princi-
ple enunciated in the cases relied on by our dissent-
ing colleagues that where a respondent fraudulent-
ly conceals from a charging party the operative
facts underlying a violation of the Act, the limita-
tions period does not begin to run until the charg-
ing party knows or should have known of such op-
erative facts.' 2 Such a rule, however, clearly has
9 In Silver Bakery, supra, the General Counsel was found to have "vir-
tually unlimited discretion to proceed on charges as he deems fit" unless
"the equities" compelled a dismissal. Then, in Koppers supra, respondent
unions were found to have "a right under the statute to be assured that
they would not be held liable for activities occurring more than 6 months
past," a right which was apparently not contingent upon a showing by
Respondent that "the equities" compelled dismissal. In California Pacific
Signs Inc., supra, the "virtually unlimited discretion" of the General
Counsel resurfaces, with the respondent required to show an abuse of the
General Counsel's discretion. The seemingly contrary holding in Koppers
was disposed of on the ground that, unlike the situation in Koppers, the
charging party in California Pacific had not voluntarily withdrawn the
charge nor asked that it be reinstated (whatever relevance the failure to
request reinstatement may possess). Today, our colleagues apparently
hold that the General Counsel's discretion in these matters is somewhat
less than "virtually unlimited," since they speak more of "the equities"
and "fraud" and less of the General Counsel's discretion than they did in
Silver Bakery and California Paci/ic Signs Inc.
'O Compare Silver Bakery, supra, with Koppers supra.
I Infra. Our colleagues also state that, since the legislative history
refers only to barring litigation "after records have been destroyed, wit-
nesses have gone elsewhere, and recollections of the events in question
have become dim and confused," they have done "no violence" to the
purpose of Sec. 10(b) if such evidence is still available. By that logic, any
charging party should be permitted to file an original charge outside the
10(b) period so long as he or she can show no prejudice to the respond-
ent.
"s Local 825, International Union of Operating Engineers, AFL-CIO
(Building Contractors Association of New Jersey), 228 NLRB 276 (1977),
cited in the dissent, is a case which turned on the Board's interpretation
of the facts, the majority finding that the charging party withdrew his
charge in reliance on respondent's false statements concerning its hiring
hall rules, and the dissent finding that there was no fraud involved and
thus no reason to toll the limitations period. This case clearly has no ap-
plication or relevance to the situation here. In Local 825, respondent al-
legedly gave a false explanation to the charging party as to the reason for
his nonreferral which induced him to withdraw his charge. Here, the
Board investigated the charge, determined that it was lacking in merit,
and solicited a withdrawal. That the Respondent did not confess to unfair
labor practices during the original investigation but, rather, denied the al-
legations or proferred an economic defense, does not constitute the type
of "fraud" warranting reinstitution of a charge in spite of the 6-month
limitation of Sec. 10(b). N.LR.B. v. Don Burgess Construction Corpora-
tion, d/b/a Burgess Construction, Builders and Donald Burgess and Verlon
Hendrix. d/b/a V & B, 596 F.2d 378 (9th Cir. 1979), enfg. 227 NLRB 765
(1977); Pullman Building Company, 251 NLRB 1048 (1980); and Plumbers
and Steamfitters Local No. 40, United Association of Journeymen and Ap-
prentices of Plumbers and Pipefitting Industry of the United States and
Continued
1458
WINER MOTORS, INC.
no application to the case before us where the al-
leged discriminatees were not ignorant of the al-
leged violation within the limitations period.'1
Further, we take issue with our dissenting col-
leagues' position that our decision here unduly re-
wards respondents for deceiving the General Coun-
sel concerning the motive for or nature of its mis-
conduct. It is a rare case where a respondent
agreed with a charging party's assessment that re-
spondent engaged in conduct violative of the Act.
Rather, in most cases, respondent denies the mis-
conduct alleged or proffers an explanation, and the
General Counsel must decide if the evidence is suf-
ficient to sustain the charging party's position. If
so, the General Counsel issues a complaint; if not,
he dismisses the charge. In other words, the denial
of the misconduct by the respondent should not be
and is not dispositive of the charge as our dissent-
ing colleagues imply.
It is, therefore, our dissenting colleagues who
have taken the illogical position of agreeing on the
one hand with the proposition enunciated by the
Board in Koppers Company that a withdrawn
charge cannot be reinstated outside the limitations
period but then, on the other hand, carving out a
narrow exception which allows reinstatement of a
withdrawn charge if the withdrawal was prompted
by a recommendation from a Board agent. We fail
to find, nor have our dissenting colleagues sup-
plied, any legal basis for this exception, which
clearly operates to circumvent the requirement of
the proviso to Section 10(b) of the Act.
Canada, AFL-CIO (Mechanical Contractors Association of Washington),
242 NLRB 1157 (1979), cited by our colleagues, are similarly distinguish-
able. In Don Burgess, the charging party union was not aware that Re-
spondent was even employing carpenters let alone nonunion ones. In
Pullman, the Charging Party union was unaware that respondent was op-
erating a nonunion jobsite. In Plumbers and Steamfitters Local No 40, the
charging party was unaware that his name had been removed from a
hiring hall list and the Administrative Law Judge noted that, in such
cases, "'the six month limitation period does not begin to run until the...
unlawful activity . . has become known to the charging party. [Cita-
tions omitted.]' N.LR.B. v. Allied Products Crporation, Richard Brothers
Division, 548 F.2d 644, 650 (6th Cir. 1977)." 242 NLRB at 1161. (Empha-
sis supplied.) Thus, in all these cases, the 10(b) period was tolled because
the charging party did not have reason to believe that an unfair labor
practice had been committed and, therefore, had not tiled a charge. Our
colleagues appear to mistakenly equate these situations with those in
which, as here, the General Counsel has belatedly determined that a com-
plaint should issue on an already-withdrawn charge.
Nor does a denial of allegations previously made constitute fraudulent
concealment. See Dayco Corporation v. Firestone Tire & Rubber Ca., 386
F.Supp. 546, 549 (D.C. Ohio 1974), affd. sub non. Dayco Corporation v.
Goodyear Tire & Rubber Company, 523 F.2d 389 (6th Cir. 1975). Wet as
pointed out by the First Circuit in N.LR.B. v. Silver Bakery of *ewton,
351 F.2d at 39, our colleagues have "created out of whole cloth" ian ill-
defined standard that would permit the revival of long-deceased charges
whenever allegations of equitable considerations are raised.
1' Holmberg v. Armbrecht, 327 U.S. 392 (1946), relied on by the dis-
sent, does not stand for the proposition that general equitable consider-
ations will toll a statute of limitations. There, the Court said, "If Con-
gress explicitly put a limit upon the time for enforcing a right which it
created, there is an end of the matter." Id. at 395. Holmberg involved no
specific limitation such as Sec. 10(b) contains.
Therefore, we shall dismiss allegations that Re-
spondent violated Section 8(a)(3) and (1) of the Act
by discriminatorily laying off employees Robert
Moody, Uli Plum, and Stephen Bernstein on July
19, 1979,14 and we shall revise our Order accord-
ingly. 15
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Winer Motors, Inc., Stratford, Connecticut, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Delete the words "laying off" from paragraph
l(g).
2. Delete the name "Stephen Bernstein" from
paragraph 2(c). a
3. Insert the following as pagraph 2(e) and re-
letter the subsequent paragraphs accordingly:
"(e) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
4. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER ZIMMERMAN concurring:
I join Chairman Van de Water and Member
Hunter in reversing the Administrative Law Judge
in this case, and in overruling Silver Bakery of
Newton. 1' I cannot accept their discussion of Cali-
fornia Pacific Signs, Inc.,'7 however, which they
would overrule.
Silver Bakery involves the issue of whether the
General Counsel may reinstate a withdrawn charge
outside the limitations period of Section 10(b); the
issue in California Pacific Signs is whether the Gen-
eral Counsel may reinstate a dismissed charge out-
side that period. Although neither my colleagues in
" In view of our refusal to allow reinstatement of the charge in Case
2-CA-16547 for the reasons stated above, we do not pass on the General
Counsel's claim that Respondent has attempted to introduce evidence not
in the record in support of its claim that the Regional Director for
Region 2 abused her discretion in reopening that case.
15 Our modified Order providing for reinstatement and backpay for
employees Moody and Plum is based on separate violations occurring
within the applicable 10(b) period, as set forth in the Administrative Law
Judge's Decision.
i' 150 NLRB 421 (1964), enforcement denied 351 F.2d 37 (Ist Cir.
1965).
" 233 NLRB 450 (1970).
1459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the majority nor those in dissent would distinguish
these issues, I believe the Act compels their distinc-
tion.
Section 3(b) of the Act plainly accords the Gen-
eral Counsel broad discretion in determining
whether to issue a complaint. Nonetheless, it is
equally clear that one prerequisite to his complaint
authority is the existence of a charge filed by a
party alleging the commission of an unfair labor
practice. Once a charging party voluntarily decides
for whatever reasons to withdraw a charge, it
ceases to exist. It "is no charge at all," N.L.R.B. v.
Central Power & Light Company, 424 F.2d 1318,
1321 (5th Cir. 1970). Moreover, as Section 10(b) es-
tahlishes a 6-month statute of limitations, "absent
the existence of a properly served charge on file, a
party is assured that on any given day his liability
under the Act is extinguished for any activities oc-
curring more than 6 months before." Olin Indus-
tries, Inc., 97 NLRB 130, 132 (1951).
That is not at all the case where the charge is
not withdrawn by the charging party, but instead is
subsequently dismissed by the Regional Director as
lacking in merit. That charge continues to exist; the
charged party has received proper notice; and the
charging party has in no way conceded any lack of
merit in the charge filed. The statutory prerequisite
for a complaint therefore remains, and the General
Counsel thus retains his discretionary authority to
reinstate the charge if he has reason to believe that
his initial decision was erroneous.
In my judgment, there is a rational and statuto-
rily based foundation for allowing reinstatement of
a dismissed charge, while prohibiting reinstatement
of a charge voluntarily withdrawn by a charging
party. Accordingly, I join with Members Fanning
and Jenkins in reaffirming the principle enunciated
in California Pacific Signs, that Section 10(b) does
not bar the General Counsel from reinstating a dis-
missed charge more than 6 months after the alleged
misconduct.
MEMBERS FANNING and JENKINS, dissenting in
part:
When Silver Bakery"' was decided, this Board
paid careful regard to the express language in Sec-
tion 10(b), finding that it related only to the actual
filing of charges. This Board further paid close at-
tention to the legislative history behind the cre-
ation of this 6-month period of limitations, noting
that:
As the Supreme Court explained, the "poli-
cies [of the 6-month limitation of Section
10(b)] are to bar litigation over the past events
'after records have been destroyed, witnesses
I" Silver Bakery Inc. of Newton, 150 NLRB 421 (1964).
have gone elsewhere, and recollections of the
events in question have become dim and con-
fused."' 1 9
A reexamination of the appropriate congressional
history reveals no additional expression of congres-
sional intent other than that quoted above. Accord-
ingly, the Board was careful to do no violence
either to the language or to the purposes of Section
10(b), when it asserted no absolute time bar to the
reinstatement of timely filed charges where no
records were destroyed, witnesses were available,
and recollections kept fresh. In providing for such
reinstatement the Board based its decision on the
authority Congress conferred under Section 3(d) of
the Act that the General Counsel "shall have final
authority, on behalf of the Board, in respect to the
investigation of charges and the issuance of com-
plaints before the Board." As a result, since that
time the Board has consistently approved reinstate-
ment of withdrawn charges where the equities
warranted it, notwithstanding such reinstatement
was beyond the normal running of the 6-month
limitations period. See, for example, our recent de-
cision in Kennicott Bros. Company, 256 NLRB 11
(1981), and cases cited therein. In certain situations,
the equities did not warrant reinstatement of the
withdrawn charge. See Koppers Company, Inc.,
Forest Products Division, 163 NLRB 517 (1967).
A majority of the Board, however, has now de-
cided to disrupt established Board doctrine, and to
require a mechanistic application of the 6-month
limitation in Section 10(b) so as to preclude consid-
eration of timely filed charges. In effect, they are
finding that Section 10(b) establishes a jurisdiction-
al restriction rather than a statute of limitations, a
view the Board previously has rejected.2 0 Their
majority's fundamental claim that "equitable con-
siderations" may not serve as a basis for tolling a
statute of limitations is a house of cards, and their
refusal to allow reinstatement of the charge herein
has allowed Respondent to reap the benefit stem-
ming directly from its misrepresentation to Board
investigators of the reasons for the discriminatory
layoffs which were the focus of the investigation.
In Holmberg v. Armbrecht, 327 U.S. 392, 397
(1946), the Supreme Court stated:
[W]here a plaintiff has been injured by fraud
and "remains in ignorance of it without any
fault or want of diligence or care on his part,
the bar of the statute does not begin to run
19 Id. at 425; Local Lodge No. 1424, International Association of Machin-
ists [Bryan Manufacturing Co.l v. N.LR.B., 362 U.S. 411, 419 (1960); H.
Rept. 245, 80th Cong., Ist sess. 40.
'o See Vitronic Division of Penn Corporation, 239 NLRB 45 (1978); Chi-
cago Roll Forming Corp., 167 NLRB 961 (1967). See also N.LR.B. v. A.
E Nettleton Co., 241 F.2d 130 (2d Cir. 1957).
1460
WINER MOTORS, INC.
until the fraud is discovered, though there be
no special circumstances or efforts on the part
of the party committing the fraud to conceal it
from the knowledge of the other party." . . .
This equitable doctrine is read into everyfeder-
al statute of limitation. [Emphasis supplied.]
In view of such a clear pronouncement regarding
every Federal statute of limitations, there is no
doubt that equity may be considered in examining
Section 10(b). If any dispute should arise, it should
be over how such equity should be applied. The
majority, however, should it rigorously apply this
new approach to Section 10(b), must disallow all
equitably based tollings of the 6-month limitation.
In addition to situations involving fraudulent con-
cealment as noted above, 21 the Board has uniform-
ly tolled the limitations period until the party af-
fected by the alleged misconduct acquires actual or
constructive notice of its occurrence. 2 2 Should the
majority hereafter decide that such decisions
remain valid, their decision, of necessity, will be
based on equitable considerations. 23
In this case the Administrative Law Judge con-
cluded that Respondent's proffered economic de-
fense to the layoffs covered by the reinstated
charge was "a pure sham and a pretext to cover up
its true motive." As this defense was the one initial-
ly accepted by the General Counsel and apparently
the basis upon which the Charging Party's with-
drawal was solicited by the Board agent, it is quite
clear that the majority now serve to reward Re-
spondent for its misleading misrepresentations to
Board investigators.
We think the equities in the case clearly support
the reinstatement of the charge, The Charging
Party acted promptly in filing the charge; the Re-
spondent has shown no prejudice resulting to it
from the delay occasioned by the withdrawal and
later reinstatement of the charge; and the Respond-
ent's misleading defense contributed to the with-
drawal of the charge. We would find in these cir-
cumstances that the General Counsel has struck a
proper balance between the policy of Section 10(b)
"L See N.L.R.B. v. Don Burgess Construction Corporation, d/b/a Burgess
Construction, 596 F. 2d 378 (9th Cir. 1979), enfg. 227 NLRB 765 (1977).
2A See Pullman Building Company, 251 NLRB 1048 (1980); Plumbers
and Steamfitters Local No. 40 United Association of Journeymen and Ap-
prentices of Plumbers and Pipefitting Industry of the United States and
Canada. AFL-CIO (Mechanical Contractors Association of Washington),
242 NLRB 1157 (1979). and cases cited therein.
23 Apparently recognizing the weaknesses of their approach, the full
majority declines to overrule California Pac(ic Signs. Inc., 233 NLRB 450
(1977), on the basis that that case involved a dismissal of a charge, not a
withdrawal. The withdrawal of a charge in lieu of dismissal is solicited
by the General Counsel for the purpose of administrative convenience,
and there is simply no rational basis for distinction between that and a
dismissal. Both withdrawals and dismissals, in the final analysis, are mat-
ters which the General Counsel has authority to grant or deny in his dis-
cretion. See Alberici-Fruin-Colnon, 226 NLRB 1315, 1316 (1976).
to bar stale litigation and the broad remedial policy
of the Act.
MEMBERS JENKINS, dissenting further:
In addition to the points raised by Member Fan-
ning and me in our joint dissent, there are addition-
al reasons why the majority is in error. My col-
leagues in the majority equate the assertion of a
pretextual defense with a simple denial of alleged
misconduct. This equation, however, overlooks the
evidence in the present case that Respondent did
more than simply deny misconduct. On the con-
trary, it affirmatively acted to mislead the General
Counsel that the discharges were economically mo-
tivated. In the face of such affirmative misrepresen-
tations, a party should not be precluded from rein-
stating a charge because of a mechanical applica-
tion of Section 10(b). In Local 825, International
Union of Operating Engineers, AFL-CIO (Building
Contractors Association of New Jersey), 228 NLRB
276 (1977), the Board agreed that, where the with-
drawal of a charge is based on a respondent's mis-
representation of its conduct, such a pretextual de-
fense prevents the running oi the 10(b) period. This
is precisely the factual situation before us now. As
stated by another administrative law judge in a re-
lated setting:
Section 10(b) is a shield to protect charged
parties against the consequences of delay
rather than a shield by which wrongdoers may
entwine the 6-month limitation within a pur-
poseful scheme to effect discrimination in a
manner leaving the victims without statutory
remedy. [Strick Corporation, 241 NLRB 210,
215 (1979).]
Here, Respondent maintained its sham claim of
economic need for the layoffs for the entire period
material herein, despite its later commission of
8(a)(1) and (3) violations which uncovered its dis-
criminatory motive for the layoffs, and upon which
basis the Regional Director decided to reinstate the
original charge. Under the majority's reasoning,
not much imagination is required to foresee that
Section 10(b) may now serve to frustrate the pur-
poses of the Act. All that is required is for a re-
spondent successfully to deceive the General Coun-
sel concerning the motive for or nature of its mis-
conduct, have the General Counsel cause the
charge to be withdrawn, and reap the windfall in
due course.
Further, the majority, in finding Holmberg, supra,
inapplicable, emphasizes that the Federal statute at
issue in that case involved no specific limitation as
in Section 10(b), and that an express time limitation
established by Congress "puts an end to the
1461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter." Contrary to the majority's interpretation
of Holmberg, the Court expressly extended consid-
eration of equity beyond the factual confines of
that case by finding it applicable even in the face
of a specific statute of limitations. The Court
stated:
If the Federal Farm Loan Act had an explicit
statute of limitation for bringing suit under Sec.
16, the time would not have begun to run until
after petitioners had discovered or had failed
in reasonable diligence to discover, the alleged
deception . . . which is the basis of this suit.
[327 U.S. at 397 (emphasis supplied).]
Further, the majority's reliance on a quotation
from Holmberg that a time limitation established by
Congress "puts an end to the matter," has been
taken out of context, and is inconsistent with the
Court's express extension of its doctrine quoted
above. Taken in proper context, the Court merely
stated that Federal law may preempt state law in
Federal court.
In any case, the majority's claim that certain of
our decisions remain valid ignores that the basis for
such decisions clearly lies in equitable consider-
ations. See Holmberg, supra. In finding that equita-
ble considerations may not be utilized here, the ma-
jority refuses to recognize its patently inconsistent
legal analysis. However, the majority is de facto de-
termining how such equity should be applied, not
that it may not be applied. Although the lead opin-
ion states that these Board decisions which remain
valid are inapplicable because of different facts,
their applicability is based not on facts, but on the
principles involved; i.e., equitable principles. They
have provided no basis for distinguishing the
present case from others involving fraudulent con-
cealment or the failure to file a charge within the
10(b) period because of no notice of the operative
events. Both of these still-valid exceptions are not
contained within the statutory language in Section
10(b) and are equally susceptible to a claim that
they were "created out of whole cloth," which ap-
pears to be the basis for the majority's finding that
no exception to Section 10(b) is sanctioned here.
The majority's decision to overrule Board prece-
dent is internally inconsistent and contrary to Su-
preme Court doctrine. 2 4
" See also Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231
(1959)., where the Supreme Court similarly ruled that a statutory limita-
tions period may not apply where a defendant's reliance on the statute
would be inequitable under estoppel principles.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT solicit our employees to aban-
don support for Brewery and Soft Drink
Workers, Liquor Drivers, and New & Used
Car Workers, Local 1040.
WE WILL NOT threaten our employees that
it will be futile for them to select the above-
named Union as their collective-bargaining
representative.
WE WILL NOT threaten our employees with
the denial of reinstatement unless they aban-
don their support and assistance for the Union.
WE WILL NOT threaten our employees that
no new employees will be hired until the em-
ployees abandon their support of the Union.
WE WILL NOT threaten our employees with
physical harm if they join, support, or assist
the Union.
WE WILL NOT threaten our employees with
layoff if they join, support, or assist the Union.
WE WILL NOT constructively discharge, dis-
charge, or otherwise discriminate against our
employees because of their activities on behalf
of the Union, or any other labor organization,
to discourage membership in the Union or any
other labor organization of our employees.
WE WILL NOT discourage membership in the
Union, or any other organization of our em-
ployees, by discriminating in regard to hire,
tenure, or other terms and conditions of em-
ployment.
WE WILL NOT unilaterally change the work-
ing conditions of our employees by instituting
disciplinary warning systems or initiating new
pay plans, and WE WILL NOT in any other
manner change the working conditions of our
employees without bargaining with the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL immediately discontinue our dis-
criminatory warning system, and immediately
discontinue our discriminatory new pay plan
relating to after-market services.
1462
WINER MOTORS, INC.
WE WILL, upon request, bargain with the
Union as the exclusive representative of our
employees in the following described unit at
our facility in Stratford, Connecticut:
All full-time and regular part-time new and
used foreign and domestic automobile sales-
persons employed by the employer; exclud-
ing office clerical employees, service and
maintenance employees, guards and supervi-
sors as defined in the Act.
WE WILL offer immediate and full reinstate-
ment to Robert Moody, Uli Plum, and Robert
Tevolits or, if those jobs no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or any other rights or
privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings they
may have suffered as the result of our discrim-
ination against them, with interest.
WE WILL immediately rescind all warnings
issued our employees under the discriminatory
warning system which we promulgated.
WINER MOTORS, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge:
The consolidated complaint which issued on August 12,
1980, alleges that Winer Motors, Inc. (herein Respondent
the Employer), engaged in various acts and conduct in
violation of Section 8(a)(1), (3), and (5) of the Act. Re-
spondent filed an answer to the consolidated complaint
in which it admitted the jurisdictional allegations of the
complaint; that it is an employer within the meaning of
Section 2(6) and (7) of the Act; that Brewery and Soft
Drink Workers, Liquor Drivers, and New & Used Car
Workers, Local 1040 (herein the Union), is a labor orga-
nization within the meaning of Section 2(5) of the Act;
that certain named individuals in the complaint are su-
pervisors and agents of Respondent within the meaning
of Section 2(13) of the Act, but denied the commission
of any unfair labor practices. Additionally, Respondent
asserts that the allegations of the complaint relating to
the layoff of June 19, 1979, of its employees, Robert
Moody, Stephen Bernstein, and Uli Plum, and the facts
surrounding this layoff are barred by Section 10(b) of the
Act. This matter was heard before me on November 19
and 20, 1980, and December 9 and 10, 1980, in New
Haven, Connecticut. The parties were represented at the
hearing and following the hearing the General Counsel
and Respondent filed post-trial briefs which have been
duly considered.
Upon the entire record in this matter, and from my ob-
servation of the witnesses and their demeanor, and after
due consideration of the briefs filed herein, I hereby
make the following:
FINDINGS OF FACT AND CONCLUSIONS'
1. THE BUSINESS OF THE EMPLOYER
Respondent, a Connecticut corporation, maintains its
principal office and place of business in Stratford, Con-
necticut, where it is engaged in retail sale and service of
new and used foreign and domestic automobiles. Re-
spondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
Around March 7, 1979, Respondent discharged 9 of its
11 new-car salesmen. These fringes occurred several
days after these nine salesmen had signed authorization
cards for the Union. The next day the Union placed a
picket line at Winer Motors in Stratford, Connecticut.
The day or night following the discharges, March 8,
1979,2 Allan Winer, Respondent's executive vice presi-
dent, was approached by Edward lulo, business agent
for the Union, who informed Winer that he represented
a majority of Respondent's salesmen and requested bar-
gaining. Thereafter, Allan Winer approached the pickets
and offered to return them to work without the Union
and also offered them individual contracts. The salesmen
continued picketing for approximately 10 days at which
time they were returned to work by agreement of Re-
spondnet and the Union. An election was held on June 1,
1979. The Union was ultimately certified as the collec-
tive-bargaining representative of Respondent's salesmen
by the National Labor Relations Board and the Board's
Decision and Order was enforced by the Second Circuit
Court of Appeals in November 1980, while this hearing
was in progress.
The 10(b) Argument Relating to the Alleged
Discriminatory Layoff of Three Employees on June
19, 1979
On June 19, 1979, Respondent laid off three of its em-
ployee salesmen, Robert Moody, Stephen Bernstein, and
Uli Plum, ostensibly for economic reasons. On June 25,
1979, the Union filed a charge in Case 2-CA-16547 with
the Board's Region 2 in New York City, New York.
This charge was timely filed well within the 6-month
The facts found herein are a compilation of the credited testimony,
the exhibits, and stipulation of facts, viewed in light of logical consisten-
cy and inherent probability. Although these findings may not contain or
refer to all of the evidence, all has been weighed and considered. To the
extent that any testimony or other evidence not mentioned in this Deci-
sion may appear to contradict my findings of fact, I have not disregarded
that evidence but have rejected it as incredible, lacking in probative
weight, surplusage, or irrelevant. Credibility resolutions have been made
on the basis of the whole record, including the inherent probabilities of
the testimony and the demeanor of the witnesses. Where it may be re-
quired, I will set forth specific credibility findings.
I Unless otherwise specified all dates refer to 1979.
1463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
limitation of Section 10(b) of the Act.3 On August 8,
1979, this charge, Case 2-CA-16547, was withdrawn and
that withdrawal was approved by the Board's Regional
Director for Region 2 without explanation on that date.
Edward lulo testified that he withdrew that charge on
the recommendation of a Board agent with the New
York Regional Office.
On December 13, 1979, the Union filed Case 39-CA-
48 with the Board in Hartford, Connecticut. That charge
alleged that the Employer imposed and implemented a
discriminatory warning system, harassed union support-
ers, and offered reinstatement to Jim Plum if he aban-
doned the Union. On December 26, 1979, this latter
charge was amended to include the June 19, 1979, layoff
of Respondent's three salesmen. On January 8, 1980, this
charge Case 39-CA-48 was withdrawn and approved by
the Board on that date. Following the amendment to this
charge, the Union in December 1979, at the suggestion
of a Board agent in Hartford, requested that the Board
office in New York reopen the layoff charges that had
been filed on June 25, 1979, and withdrawn on August 8,
1979.
On April 24, 1980, the Regional Director for Region 2
in New York advised Respondent that certain questions
had been raised in Case 2-CA-16547 and referring Re-
spondent to California Pacific Signs, Inc., 233 NLRB 450
(1977), advised that "Accordingly, I am revoking my ap-
proval of Charging Party's withdrawal in this case, and
reopening the matter for further investigation." In the
same communication the Regional Director advised that
the case was being transferred to Subregion 39, and
would thereafter be referred to as Case 39-CA-212. By
Order dated April 25, 1980, the case was formally trans-
ferred to and continued in Subregion 39 as Case 39-CA-
212.
Respondent argues that although the original charge in
Case 2-CA-16547 was timley filed on June 25, 1979, it
was subsequently withdrawn on August 8, 1979, and
there was no charge pending at the time the 6-month
limitation period, provided by Section 10(b) of the Act,
expired on or about December 19, 1979. Since Section
10(b) of the Act is a 6-month statute of limitatations, any
properly served charge can allege as an unfair labor
practice only activities of a Respondent which occur not
more than 6 months prior to the date of service of the
charge.'
The General Counsel, recognizing the teachings of the
Koppers case, agrees that generally a withdrawn charge
cannot be reinstated alleging the same offense if more
than 6 months has passed since the occurrence which
gave rise to the alleged unfair labor practice. But, argues
that a different rule applies where a charge is withdrawn
pursuant to the mistaken advice of a Board agent, in
which case a regional director can reopen the charge
even in excess of 6 months after the alleged unfair labor
3 The charge was signed by Edward J. lulo on June 21, 1979, but it
was not filed until 12:28 p.m., June 25, 1979.
4 In Koppers Company, Inc. Forest Poducts Division, 163 NLRB 517
(1967). the Board stated that 'The practical effect to the proviso to Sec-
tion 10(b) is that, absent the existence of a properly served charge on file,
a party is assured that on any given day his liability under the Act is ex-
tinguished for any activities occurring more than 6 months prior there-
to."
practice occurred. In support of this proposition the
General Counsel cites Silver Bakery, Inc., 150 NLRB 421
(1964). In that case charges were timely filed on March
8, 1962. On March 13, 1962, an agent of the Board inter-
viewed the respondent employer's principal stockholder.
As a result of the commerce information gathered during
this interview the Board agent represented to the charg-
ing party that the Board would not assert jurisdiction
and on that date, the charging party agreed to withdraw
the charges. On March 15, 1962, the Regional Director
notified all parties that he had approved the withdrawal
of the charges without prejudice. As a result of a state
proceeding it was learned that the National Labor Rela-
tions Board did in fact have jurisdiction over the re-
spondent employer and on June 1, 1963, the charging
party requested the Regional Director to reinstate the
charges and to reopen the cases. On July 22, 1963, the
Acting Regional Director withdrew his consent to the
withdrawal of the charges and reopened the cases for in-
vestigation on their merits, and on November 12, 1963,
issued a complaint. Although the Trial Examiner con-
cluded that the charges had merit he nevertheless recom-
mended dismissal of the complaint on the ground that it
was barred by Section 10(b) of the Act. In disagreeing
with the Trial Examiner the Board concluded that Sec-
tion 10(b) relates only to the actual filing of charges, and
the General Counsel acting in the public interest to effec-
tuate the policies of the Act has virtually unlimited dis-
cretion to proceed on charges as he deems fit in the exer-
cise of his office. And there is nothing in the Act limit-
ing his authority to issue a complaint once the charge is
filed. Once the charge has been timely filed the only
question then is whether the equities in the case compel
a dismissal of the complaint and charges in view of the
time that has lapsed between the withdrawal of the
charge and the Regional Director's notice to the parties
of his decision to reopen the case.
In N.L.R.B. v. Silver Bakery, Inc. of Newton. Massachu-
setts, et aL, 351 F.2d 37, 38 (1965), the United States
Court of Appeals for the First Circuit denied enforce-
ment of the Board's Order stating that:
We cannot, however, agree with the Board that
the present proceedings were not prosecuted in vio-
lation of Section 10(b) of the Act. O'Brien was dis-
charged on February 5, 1962. He filed charges on
March 8, 1962. A week later, due to what proved
to be inadequate investigation, the regional director
informed O'Brien that the employer did not meet
the Board's jurisdictional standards, and requested
that he withdraw the charges without prejudice.
This was done, with the Board's consent. The re-
spondents knew of the charges and of the fact that
they were withdrawn without prejudice. Conceiv-
ably they knew the reason for the withdrawal, but
they in no way contributed to the regional direc-
tor's mistake.
Section 10(b) is clearly an ordinary statute of
limitations. .... It has been applied, consistently, so
1464
WINER MOTORS, INC.
far as we can discover, to bar "reinstated" charges
after withdrawal of an original, timely charge. Cf.
N.L.R.B. v. Electric Furnace Co., 6th Cir., 1964, 327
F.2d 373; Olin Industries Inc., 1951, 97 NLRB 130.
There was no statutory basis in the Act for holding
the statute to be tolled, and no other ground. The
Board's broad proposition that once a complaint has
been filed and dismissed only so-called equitable
principles determine when it can be reviewed was
created out of whole cloth. From the standpoint of
respondents, for whom Section 10(b) was enacted,
we can think of no good reason why the mere filing
of a charge which is withdrawn with the consent of
the Board, so that no proceedings are pending,
should leave in the Board a roving discretion to de-
termine that so-called equities warrant the reinstitu-
tion of the proceedings without limit of time. The
fact that the Board may feel that its discretion is be-
nignly exercised cannot answer the clear purpose of
a statute of limitations. The order may not be en-
forced.
The General Counsel also cites Communications Work-
ers of America AFL-CIO, Local 1127 (New York Tele-
phone Company), 208 NLRB 258 (1974). In that case a
charge was timely filed on May 8, 1972, alleging a viola-
tion. Investigation of that charge apparently indicated to
the Regional Director that the charge had no merit and
the charging party was requested to withdraw his
charge. A withdrawal request was submitted by the
charging party on June 4, 1972, and approved on June
20, 1972. Subsequently the Regional Director concluded
that the withdrawn charge had merit and so advised the
charging party. Accordingly on January 22, 1973, the
charging party requested that his charge be reinstated.
On January 23, 1973, the Regional Director issued an
order withdrawing his approval of the withdrawal re-
quest and reinstated the unfair labor practice charge and
on January 31, 1973, issued a complaint pursuant to the
reinstated charge. Relying on the Koppers case respond-
ent argued that the reinstated charge was barred by Sec-
tion 10(b) of the Act. The General Counsel on the other
hand argued that the Kopper case was not controlling,
because in that case no equitable considerations were
presented to justify reinstatement of the charge, and
relied upon the Board's decision in Silver Bakery. After
exhaustive research the Administrative Law Judge con-
cluded that there is no clear authority for the proposition
that the Board still adheres to its Silver Bakery decision,
however, absent a clear indication by the Board that it
had abandoned the principle enunciated in Silver Bakery
he was bound by that decision and found that the com-
plaint was supported by a timely charge. He further
stated that even if the reinstated charge were deemed un-
timely, the charging party was covered by another
charge sufficiently broad to make his inclusion in the
complaint proper. The Board affirmed the Administra-
tive Law Judge, but stated that as the other charges are
broad enough to cover the allegations of unlawful con-
duct against Clayton Mitchell, we need not pass on the
question of whether Mitchell's own charge was barred
by Section 10(b) of the Act.
In addition to the above cases the General Counsel
also cites California Pacific Signs, Inc., 233 NLRB 450
(1977), and other cases decided on similar facts.
In California Pacific Signs, Inc., the charge was initially
filed on November 10, 1975. On February 3, 1976, the
charge was dismissed by the Region and on March 17,
1976, the dismissal was affirmed by the General Counsel
in Washington. Thereafter, on August 6, 1976, based on
newly discovered evidence, the General Counsel rein-
stated the charge. Respondent argued that the reinstate-
ment of the charge was barred by Section 10(b) of the
Act. In concluding that Section 20(b) was not a bar to
the charge the Board stated at 457:
Section 10(b) of the Act provides that no com-
plaint shall issue based on any unfair labor practice
occurring more than 6 months prior to the filing of
a charge with the Board. This section, however, re-
lates only to the actual filing of charges and, once a
charge has been timely filed, the control over, and
disposition of, that charge is vested exclusively with
the General Counsel pursuant to Section 3(d) of the
Act. The General Counsel thus has virtually unlim-
ited discretion to proceed on such timely filed
charges as he deems fit5 and, in the absence of a
showing of abuse of the discretion, the Board will
not interfere with the General Counsel's exercise
thereof. This is not to suggest that a charging party
may file a charge, voluntarily withdraw it, and sub-
sequently reinstate it more than 6 months later.
Indeed, the Board in Koppers Company, Inc.,6 found
that Section 10(b) of the Act barred reinstatement
of a charge by a charging party more than 6
months after the alleged unfair labor practice oc-
curred where the charging party, pursuant to a pri-
vate settlement agreement with respondent union,
voluntarily withdrew the charge.
Unlike the charge in Koppers, the charge here
was neither voluntarily withdrawn by the Charging
Party nor reinstated at the Charging Party's request.
Rather, the General Counsel, relying on newly dis-
covered evidence, exercised the discretionary au-
thority given to him by Section 3(d) of the Act and
reinstated the charge. As previously stated, the
Board will not interfere with the General Counsel's
exercise of his discretionary authority unless it can
be shown that such authority was abused. Respond-
ent here has not alleged, much less proved, that the
General Counsel, in reinstating the charge, abused
his authority. In the absence of such proof, we find
the reinstatement of Washington's charge was
proper and not time barred by Section 10(b) of the
Act. Accordingly, we shall dismiss Respondent's ex-
ception.
The Board distinguished the Koppers case, and cited its
decision in Silver Bakery which indicates that case is still
viable, and that I am bound by that Board decision.
See Silver Bakery Inc., of Newton, 150 NLRB 421 (1964).
G 163 NLRB 517 (1967).
1465
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board law in this area appears to be that if a
charging party voluntarily withdraws a timely filed
charge it cannot be reinstated more than 6 months after
the alleged occurrence which gave rise to the unfair
labor practice. On the other hand, if a regional director
dismisses a timely filed charge for lack of merit, or if the
charging party withdraws the charge on the recommen-
dation of the Board agent rather than having the charge
dismissed by a regional director, 7 it would appear that
the General Counsel or the regional director has virtual-
ly unlimited discretion to reinstate that charge and pro-
ceed to complaint whether or not 6 months has lapsed
since the occurrence giving rise to the unfair labor prac-
tice. Provided, the General Counsel or regional director
has not abused his discretion, guided by whether the eq-
uities in the case compel a dismissal of the complaint and
charges in view of the time that has lapsed between the
withdrawal of the charge and the notice to the parties of
the decision to reopen the case.
It is clear in this case that the Charging Party with-
drew the charge on the recommendation of the Board
agent and the withdrawal of that charge was approved
by the Regional Director. Additionally, the new charges
filed with the Hartford Office in November, and amend-
ed in November, raised newly discovered evidence
which allegedly cast some doubt upon Respondent's eco-
nomic defense to the layoff of June 19, and therefore
cast the layoff in a different light. This evidence was suf-
ficient to cause the Regional Director to reconsider the
approval of the prior withdrawal of the charge filed in
June, and caused the Regional Director to withdraw that
approval and to reinstate the charge and to reopen the
investigation of the case. While there is no explanation as
to why this took the Regional Director from December
1979 until April 1980, there is also lack of any evidence
which would show an abuse of discretion on the part of
the Regional Director. Under these circumstances, and in
view of the Board's decision in Silver Bakery and Califor-
nia Pacific Signs, which are binding on me, I must con-
clude that the charge and complaint in this matter are
not barred by Section 10(b) of the Act, and the issue of
the legality of the June 19, 1979, layoff is properly
before this Administrative Law Judge for decision.
The 8(a)(l) Allegations
The record reflects that 1978 was a very good year for
the automobile industry and for Winer Motors. At the
beginning of 1979 Respondent had approximately 13
salesmen employed in new and used foreign and domes-
tic car sales. In February and March 1979 business ap-
parently began falling off at Winer Motors, and the
Company discharged all of its salesmen except John
Roberts and Ted Pasqurello. According to Allan Winer,
Respondent's general manager, the salesmen were dis-
charged because they were not doing their job properly,
the Company was starting to go down hill, and gross
profits on the cars were dropping by a large amount.
John Roberts was retained because he had been with the
I Thus a charging party should be in no worse position by voluntarily
withdrawing a charge rather than have it dismissed, than he would other-
wise be if the regional director actually dismissed the charge on merit.
Company for approximately 20 years and was doing his
job properly. Pasqurello was retained because he was a
new employee and had not fallen into the same pattern
or mold as the other salesmen. It appears that shortly
before the discharge of these employees nine of them
had joined the Union. During the time in which they
were discharged the employees actively picketed the
premises of Respondent and that picketing continued
until they returned to work by agreement between Re-
spondent and the Union. The day after picketing started
the Employer was approached by the union representa-
tive who informed Respondent that the Union represent-
ed a majority of the salesmen and wanted to bargain
with Respondent concerning the employees. Allan Winer
admitted that while the employees were on picket line he
possibly informed them that they did not need the
Union, that they could have contracts directly with the
Employer, and that if the employees would come back
and give up the Union they could work out their prob-
lems.
The election among Respondent's salesmen was held
on June 1, which ultimately resulted in the Union being
certified as the bargaining representative of the employ-
ees.
Robert Moody credibly testified that while on the
picket line they were approached by Allan Winer who
informed the picketing employees that if they came back
to work everything would be forgiven and that they
could sit down with his attorneys and negotiate a con-
tract and that they did not need a union, and that work-
ing conditions would be improved. Moody also testified
that in April he was approached by Sam Winer, a part
owner of Respondent, who handed him a letter and
asked him to read the letter and added that he would
never allow the Union in his place of business, except
perhaps over his dead body. Moody further testified that
in June he had a conversation with Tomasulo, the new-
car sales manager, who informed him that the Union
would never get in at Winer Motors because Harold
Winer would spend any amount of money necessary to
keep it out. Moody also testified that on the morning
before the election he overheard a conversation between
Tomasulo, Rocco Goduti, Respondent's used-car sales
manager, and employee Jack Allan. These supervisors
were telling Allan to vote against the Union and that it
would be smooth sailing without the Union and if the
Union were successful the employees would be subject
to losing some of their privileges.
The above conversations, acts, and conduct were out-
side the 10(b) period, and cannot constitute violations of
the Act which can be found pursuant to the complaint in
this matter. However, as background evidence this mate-
rial can be considered in determining Respondent's atti-
tude toward unions in general, the Union specifically,
and most definitely can be helpful in shedding light on
Respondent's subsequent actions.8
Paragraph 8 of the complaint alleges that, in July, Re-
spondent threatened employees with discharge because
they joined and assisted the Union. In support of this al-
l It is clear that these acts and conduct would be violations of Sec.
8(alI) of the Act were they not outside the 10(b) period.
1466
WINER MOTORS, INC.
legation employee Michael Frank testified credibly that,
around July 27, he was discussing a problem he had with
a deal with Allan Winer and Winer got a little angry
with him and said, "this isn't Mickey Frank Motors, this
is Winer Motors. And, he also said, that he was going to
write up-make a list of everything I do wrong and
blow me out the door." A couple of hours later Winer
returned and apologized to Frank. Frank testified that at
sales meetings he would inform management that they
were short of salesmen and should hire more salesmen.
At these meetings Jerry Tomasulo and Rocco Goduti
said they would not hire any union salesmen back, that
they would close the doors first. Frank testified further
that in November he overheard Allan Winer and Rocco
Goduti stating that on the advice of their attorneys
Winer Motors should start building up a case against the
Union salesmen for not following company procedure
and policies and fire them. Frank testified that he related
this conversation to fellow employee Tevolits who indi-
cated that he did not want all this harassment, and was
thinking of quitting. The next day Tevolits got three
written warnings which he was not pleased about. It ap-
pears that several days after this Tevolits left Winer
Motors. A few days later Frank started receiving written
warnings. And when he would mention to management
that he thought these warnings were unfair and harass-
ing, and indicating that he would file unfair labor prac-
tice charges, Respondent's agents informed him to file
his unfair labor practices. Allan Winer denied making
any threats to any of the salesmen because of their union
activities.
As I credit the testimony of Frank over that of Allan
Winer there is no question in my mind but that Winer
did threaten Frank with making a list of everything he
did wrong, and that he would eventually "blow him out
the door" (discharge him). And in view of Respondent's
general antiunion attitude it is clear in my mind that this
statement was made because of the union activities of
Frank and of the union activities of his fellow employ-
ees. Respondent was aware that Frank was one of the
original employees discharged in March, that he picketed
during the period while these employees were dis-
charged, and that he returned to the plant solely because
of the agreement between Respondent and the Union. It
is quite clear that Respondent was unhappy with the fact
that these employees who supported the Union were
back working under Respondent's roof. In my view this
remark was clearly made by Winer to Frank to intimi-
date, restrain, and coerce Frank because of his past and
continued support for the Union, in violation of Section
8(aXl) of the Act, and I so find.
Paragraph 9 of the complaint alleges that in September
Respondent threatened employees that it would be futile
for them to select the Union as their bargaining repre-
sentative. In this regard Uli Plum testified that one night
in September, following a union meeting, he went to a
restaurant bar called the Jekyl and Hyde in Bridgeport,
Connecticut, around 12:30 a.m. and while there Allan
Winer came into the restaurant, and in response to
Plum's query as to when he was going back to work,
said, "you want to go back to work, why-would you
resign from the Union and them come back to work." At
which point Plum told Winer that he would not sign one
of the letters which had been circulated denouncing the
Union, to which Winer asked him why and Plum told
him that it was untrue and ridiculous. Plum told Winer
that Respondent could function perfectly well with the
Union, and Winer said, "no way" was Respondent to
have a union. I credit the testimony of Plum over that of
Winer, particularly as Winer merely gave a general
denial of any threats to any employee. Therefore, it is
my conclusion that by this statement Winer was condi-
tioning Plum's reinstatement upon his resigning from the
Union, and that Winer made it clear that a union would
not be in at Respondent's premises and that it was futile
for the employees to join or assist the Union. Both state-
ments are clear violations of Section 8(aXl) of the Act,
and I so find.
Paragraph 10 of the complaint alleges that, in Novem-
ber and December, Respondent threatened employees
that no new employees would be hired until the employ-
ees abandoned support for the Union. No evidence was
offered to support this allegation and I shall recommend
that paragraph 10 of the complaint be dismissed.
Paragraph 11 of the complaint alleges that in January
1980 Respondent threatened employees with physical
harm if they joined, supported, or assisted the Union and
threatened employees with layoff if they joined, support-
ed, or assisted the Union. In support of this allegation
employee Mickey Frank testified that in mid-November
1980 he was called into Allan Winer's office where he
was questioned about a constructive discharge. Thereaf-
ter, Winer told Frank that he was lucky to be working
for nice guys like Respondent. He then told Frank about
another dealer whose salesmen wanted to form a union,
and the owner of that dealership said that he would kill
any salesman who wanted to join a union, and that
fellow never had a union in his place. Winer then asked
Frank what he would do if somebody told him that they
would kill him if he wanted to form a union. Winer told
Frank that if he did not like it at Winer Motors he
should leave. Winer then informed Frank that business
was slow and that he was considering laying him off.
It is my conclusion that this conversation contained a
veiled threat of physical harm for continued support of
the Union, and that Winer also threatened Frank with
layoff because of his continued support of the Union, all
in violation of Section 8(aXl) of the Act.
Paragraph 12 of the complaint alleges that on April 1,
1980, Respondent threatened employees with physical
harm because they joined, supported, or assisted the
Union.
Mickey Frank testified that in April 1980 while he was
in the parking lot Matthew Corvo came over to him and
quite angrily said that he had been working at Winer
Motors for 11-1/2 years and if Winer Motors went out
of business he would personally take care of Frank.
Frank told Corvo that he thought this was a terrible
threat, and was illegal, and Corvo repeated the threat
again and walked away. Frank testified that he brought
this to Allan Winer's attention, and Corvo was called
into the office and after Franik repeated what had hap-
pened Corvo denied this and the matter was dropped. At
1467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing Corvo testified that he recalled being ac-
cused of such a threat by Frank, and that he had denied
the matter then and that he denies the matter now.
As I credit the testimony of Frank9 over that of
Corvo it is my conclusion that these statements were
made and that Frank was threatened with physical harm
because of his support for the Union in violation of Sec-
tion 8(a)(l) of the Act.
The 8(a)(3) and (5) Allegations of the Complaint
Paragraph 13 of the complaint alleges that on or about
June 19 Respondent laid off its employees Robert
Moody, Stephen Bernstein, and Uli Plum and paragraph
14 of the complaint alleges that in September Respond-
ent refused to reinstate its employee Uli Plum because
these employees joined, supported, or assisted the Union
and to discourage employees from engaging in such ac-
tivities or other concerted activities in violation of Sec-
tion 8(a)(1) and (3) of the Act.
Respondent admits that these three employees were
laid off on June 19, as alleged, but contends that the
layoff was prompted by economic reasons and not for
discriminatory reasons as alleged in the complaint.
In February, nine of Respondent's salesmen deter-
mined that they wanted to be represented by the Union.
They approached Ed lulo and thereafter all signed union
cards. Two days later, on Wednesday, March 7, all nine
of the salesmen were discharged. The ostensible reason
for the discharge of these nine salesmen was because
they were not bringing any business into the Company
and were not performing their job properly. Thereafter,
the Union interceded on the behalf of these employees, a
picket line was established, and by agreement between
the Union and Respondent the employees were returned
to work. While the salesmen were on the picket line they
were approached by Allan Winer who offered to take
them back without the Union and offered them individu-
al contracts. Notwithstanding, the reason for the dis-
charge of these nine salesmen, Respondent was more
than willing to reinstate them to their former positions if
they abandoned their support for the Union, and even of-
fered them individual contracts and improved working
conditions. In these circumstances, it is obvious that the
union activities of the salesmen were the reason behind
Respondent's swift action in discharging them.
Although, these nine salesmen were permitted to
return to work as a result of the agreement, Respondent
continued its efforts to persuade the employees to aban-
don the Union. Thus, in April Sam Winer, one of the
owners of Respondent, informed Robert Moody that he
would never allow a union in his place of business, and
that Respondent would spend whatever amount of
money was necessary to keep the Union out. Additional-
ly, Respondent threatened at least one employee with
loss of benefits if the Union won the election.
Also, on May 29, 3 days before the June 1 election,
Respondent sent a letter to all of the previously dis-
charged salesmen advising them of the fact that they
9 Frank's testimony was straightforward and had a ring of truth. On
the other hand the testimony of Corvo, like that of Allan Winer, left me
unimpressed and did not sound sincere or truthful.
held their positions solely because of the stipulated judg-
ment and contract between the Union and Winer Motors
of March 13, 1979. The employees were told that Re-
spondent considers them to be properly discharged em-
ployees and therefore not entitled to vote in the upcom-
ing election. In my view, this is clearly a warning to
these employees that should they be entitled to vote in
the upcoming election they would be wise in voting
against the Union. On the day of the election the ballots
of these employees were challenged on the basis that
they were not employees of Respondent.
On June 19, while objections and challenges to the
election were pending, Respondent laid off four of its
domestic car salesmen. This was the first layoff in the
history of the Company and three of the four salesmen
laid off had signed union cards, been involved in the pre-
vious discharge, and had picketed in March. As indicated
earlier Respondent contends that these four salesmen
were laid off for economic reasons.
Respondent offered extensive testimony and exhibits to
support the proposition that the Company was in a bad
economic condition in June 1979. For the purpose of this
decision I will accept, for the sake of argument, that the
Company was in an economic decline in June of 1979,
presumably as a result of the gasoline situation at that
time. However, from the evidence presented in this case,
it does not appear that a layoff is the answer to an eco-
nomic decline in the automobile sales industry, as would
be the case in a production and manufacturing plant.
Here the salesmen receive no wages but are paid strictly
on a commission, based on sales. Thus, if they do not sell
they are paid nothing, and therefore it costs the Compa-
ny nothing, except for the nominal amount of $36 a
month for medical coverage, $50 a month for workmen's
compensation, and payroll tax of 10 percent of earnings.
As Moody was not under the medical coverage, this cost
the company nothing for him. Therefore, it would
appear that Respondent's total cost for these three em-
ployees in a given month would be approximately $220.
As sales is the guts of the business in the new- and
used-car industry, it would appear with the nominal cost
per month per salesman, unlikely that a company would
lay off salesmen during an economic decline. It would
seem that the way to fight an economic decline would be
to boost sales, even if it were necessary to hire additional
salesmen. This appears to have been the practice in the
past for there had never been a layoff at Respondent, yet
there must certainly have been other economic declines.
Three of these salesmen, Plum, Moody, and Bernstein
were experienced salesmen and certainly would have
been an asset in an economic decline. Because of the in-
consistent and contradictory testimony among Respond-
ent's witnesses concerning its economic status in June
1979, and because it does not appear to me that a layoff
would be the appropriate thing in an economic decline in
the new- and used-car sales business, it is my conclusion
that Respondent's economic justification for the layoff is
a pure sham and a pretext to cover up its true motive.
The discharge of Plum, Moody, and Bernstein in
March for their union activities, and Respondent's ex-
pressed position that it would never allow a union in the
1468
WINER MOTORS, INC.
plant regardless of the cost, clearly demonstrate to me
Respondent's union animus. Moreover, in September
Allan Winer conditioned reinstatement of Plum on his
resignation from the Union, and then informed Plum that
there was no way that Respondent was ever going to
have a union. Additionally, in sales meetings in Novem-
ber Respondent continually informed the salesmen that
there would be no more salesmen until this union thing
was settled, and that Respondent would close its doors
before hiring any union salesmen. These facts clearly
show that Respondent's refusal to recall the salesmen
was discriminatory, and in my view indicates that the
initial layoff was discriminatory. In these circumstances,
it is my conclusion that Respondent laid off employees
Moody, Plum, and Bernstein on June 19, 1979, because
of their support for the Union and their activities on
behalf of the Union in an effort to discourage member-
ship in, and support for, the Union at Respondent's
premises, clearly in violation of Section 8(a)(3) and (1) of
the Act.
Paragraph 14 of the complaint alleges that, in Septem-
ber 1979, Respondent refused to reinstate Uli Plum be-
cause of his activities on behalf of the Union and in
order to discourage employees from engaging in union
activities and other concerted activities. In view of my
previous conclusions with regard to the conversation be-
tween Allan Winer and Uli Plum in September it is my
conclusion that the General Counsel has sustained his
burden of proof in support of this allegation of the com-
plaint, and I so find. Therefore, by this action, Respond-
ent clearly violated Section 8(a)(3) and (1) of the Act.
Paragraph 15 of the complaint and conclusionary para-
graphs 23, 29, and 30 allege that, in November 1979, Re-
spondent changed the working conditions of its employ-
ees by initiating a disciplinary warning system because of
its employees' support for the Union and in order to dis-
courage employees from engaging in such activities, in
violation of Section 8(a)3) and (1) of the Act, and by
such unilateral action Respondent has failed and refused
to bargain collectively with the Union in violation of
Section 8(a)(l) and (5) of the Act.
This record reflects that in July after the election Re-
spondent announced the institution of a written warning
system to its salesmen; however, there does not appear
to be any implementation of that system until November.
The statement in July, by Allan Winer that he was going
to make a list of everything that Frank did wrong, and
blow him out the door, sheds some light on the motiva-
tion and the thinking of Respondent at the time of the
institution of the written warning system. This statement
would indicate that the warning system was illegal from
its inception and was designed to dissuade the employees
from further supporting the Union.
As indicated there was no evidence of the implementa-
tion of this warning system until November, after the
Board's certification of the Union on October 5, 1979. In
early November Frank overheard Allan Winer instruct-
ing his managers to build up a case against the union
salesmen for not following company procedures and
policies in order to fire him. Thereafter, on November 6,
the first written warnings were issued.' 0 Additionally,
on November 6, Robert Tevolits, a prounion employee
received several written warnings. At the time the warn-
ings were given to Tevolits, Manager Tomasulo told him
that it was a new company policy, and that the warnings
were being given on the advice of counsel. Tevolits real-
izing that the harassment had started, and that Respond-
ent was building a case against him, went to Allan Winer
and gave his 2 weeks' notice prior to quitting. The fol-
lowing day, Respondent took Tevolits' demonstrator
automobile from him and informed him he would not
need it. He was told by Allan Winer that he would not
be interested in working at Winer Motors with the poli-
cies that were going to be followed, and also told Tevo-
lits to take Mickey Frank with him. At this point Tevo-
lits quit. Tevolits testified that he felt compelled to quit,
before he received so many warnings that would
jeopardize his getting another job. The General Counsel
argues that Respondent constructively discharged Tevo-
lits in violation of Section 8(a)(1) and (3) of the Act.
As indicated earlier, the warning system was instituted
in July but was not implemented until November. It ap-
pears that, following a meeting with the company attor-
neys, Allan Winer instructed his managers to build up a
case against the union salesmen for not following compa-
ny procedures and policies in order to fire them. Consist-
ent with this plan on November 6, the written warnings
began to issue. Thus, on this date Tevolits, the only re-
maining prounion employee other than Frank left in the
employ of Respondent, received a number of warnings.
He was told at that time by Manager Tomasulo that this
was the new company policy and that these warnings
were being given on the advice of counsel. This appears
to explain the reason why the implementation of the
warning system occurred in November. Tevolits testified
that he realized that Respondent was beginning to build
a case against him, and that he would be harassed there-
after, and in order to preserve his record he felt it was
necessary to quit before it was too late. The following
day, Respondent took Tevolits' demonstrator automobile
away from him, informing him that he would not need
it, and later told him that he would not be interested in
working at Winer Motors with the new policies that
were going to be followed. He was also asked to take
Frank with him when he left.
There is no doubt that Tevolits felt compelled to quit
Respondent's employment before his record was injured
and he would be unable to obtain gainful employment
elsewhere. In view of his known union activity, the uni-
lateral nature of the warning system itself, the animus of
Respondent toward the Union, and the fact that Re-
spondent had indicated that it was going to use the
warning system to build cases against its salesmen, it ap-
pears to me that Respondent caused the termination of
Tevolits, because of his support for the Union and to dis-
courage such support among its employees in violation
of Section 8(a)(3) and (1) of the Act.
After Tevolits left Respondent's employ, Respondent
began issuing written warnings to Frank. By the time of
10 See G.C. Exhs. 10(a) and (b).
1469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing Frank had received over 30 written warn-
ings. The warning system initiated in July contemplated
only one verbal order, one written order, and then dis-
charge. The fact that Frank received some 30 warnings
and was not discharged indicates that these warnings
were not part of a progressive system of discipline but
were used as a means of harassing employees. It appears
for the most part the warnings were used to harass
prounion employees, and as the warning system was uni-
laterally imposed it is my conclusion that the implemen-
tation of the written warning system in November violat-
ed Section 8(aX)() and (5) of the Act, 1I and because of
its discriminatory application against prounion employees
to discourage continued support of the Union, this also
violated Section 8(a)(3) of the Act, and I so find. See Fi-
deity Telephone Company, 236 NLRB 166 (1978), and
Daniel Construction Company, a Division of Daniel Inter-
national Corporation, 244 NLRB 704, fn. 2 (1979).
Paragraph 21, of the complaint alleges that on or
about March 25, 1980, Respondent changed the working
conditions of its employees by instituting a new pay plan.
Paragraphs 29 and 30 of the complaint allege that this
conduct violated Section 8(aX)( and (3), and Section
8(a)(l) and (5) of the Act, respectively. At the hearing
Respondent conceded the violations as alleged in para-
graphs 21, 29, and 30 of the complaint and the parties en-
tered into a stipulation to that effect. Accordingly pursu-
ant to the stipulation, it is my conclusion that, by institut-
ing the new pay plan with regard to certain market
products and services such as rustproofing, polygly-coat-
ing and extended warranties, Respondent has violated
Section 8(aXl), (3), and (5) of the Act. Therefore, I shall
recommend that Respondent revert to the status quo as it
existed prior to March 1980, and reimburse its salesmen
for any loss they may have suffered as a result of Re-
spondent's changes, and bargain with the Union before it
makes any further changes in working conditions.
Paragraph 22 of the complaint alleges that on or about
May 22, 1980, Respondent rescinded its reinstatement
offer to employee Robert Moody thereby discriminating
against Moody and discouraging membership in the
Union, in violation of Section 8(aXl) and (3) of the Act.
In April 1980 Respondent had a serious shortage of
salesmen and at that time offered reinstatement to the
three employees who had been laid off in June 1979. Re-
spondent had no intention of rehiring these employees
because, when Plum discussed this matter with Allan
Winer, Winer informed him that business was bad, and
the Company would probably go bankrupt, and he was
going to "flood the' floor with salesmen." Obviously
Plum would not want to return under these conditions,
and therefore he did not accept the offer to return, but
decided to remain where he was. Moody, on the other
hand, was anxious to return, and when he received the
April 21, 1980, letter he so informed Respondent. At that
I I On October 5, 1979, the Union was certified as the exclusive collec-
tive-bargaining representative of the employees in the following bargain-
ing unit:
All full-time and regular part-time new and used foreign and domes-
tic automobile salespersons employed by the Employer; excluding
office clerical employees, service and maintenance employees, guards
and supervisors as defined in the Act.
time he also informed Respondent that he was in the
hospital for tests, and as soon as he was able he would
make an appointment with Respondent to discuss return-
ing to work.
On May 22, 1980, Allan Winer informed Moody that
due to his physical condition Respondent's insurance car-
rier had advised that it could not afford insurance cover-
age and that Moody should not be placed back on duty
due to the financial risk the Company might face in the
event of his illness causing a disability.
Moody has been a diabetic since 1956 and indicated
this on his initial application at Winer Motors in 1975.
Additionally, Moody had discussed his diabetic problem
with members of management.
It appears that Moody's diabetic condition only
became a problem to Respondent when it needed addi-
tional salesmen in April 1980 and believed that it must
rehire the employees that it laid off in June 1979. Having
discouraged Plum from seeking reinstatement, Respond-
ent realizing that it could not discourage Moody decided
that it would preclude Moody's reinstatement by reject-
ing Moody because of his physical impairment.
Under the circumstances, particularly in view of Re-
spondent's unlawful termination of Moody on June 19,
1979, and its statement to Plum that it would take the
employees back only if they abandoned the Union, it ap-
pears that Respondent had the same mental attitude at
the time Moody agreed to accept reinstatement, and Re-
spondent's only way to avoid reinstating Moody was to
rely on his health problem. It is my conclusion that Re-
spondent had no intention of reinstating any of its former
union salesmen and that it latched upon Moody's health
problem strictly as a pretext in order to foreclose rein-
statement. Moreover, even if Respondent were legiti-
mately concerned about its financial responsibility in the
future because of Moody's diabetes it would appear that
Respondent cannot rely upon this excuse, because it
originally discriminated against Moody in the initial
layoff or termination on June 19, 1979. Thus, a preexist-
ing medical condition cannot justify a refusal to reinstate
an illegally discharged or terminated employee. In my
view the refusal to reinstate Moody in April 1980 was
discriminatorily motivated and independently violated
the Act. As I have concluded that Respondent violated
Section 8(aXl) and (3) by laying off Moody, Plum, and
Bernstein, it is also my conclusion that by conditioning
Plum's reinstatement upon his abandoning the Union,
and withdrawing the offer of reinstatement to Moody,
Respondent has also violated Section 8(aXl) and (3) of
the Act.
III. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occur-
ring in connection with Respondent's operations have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
1470
WINER MOTORS, INC.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Having
found that Respondent committed violations of Section
8(aX5) of the Act by unilaterally changing the working
conditions of its employees by initiating a disciplinary
warning system and by instituting a new pay plan with-
out bargaining with the Union the certified bargaining
representative of its employees, I shall order that Re-
spondent discontinue its written warning system and re-
scind all warnings issued to its employees, restore the
sales of aftermarket services to the salesmen, and make
all salesmen whole for any loss of wages as a result of
the unilateral action of Respondent, and bargain in good
faith with the Union concerning any future changes in
the working conditions of its employees.
As I have found that the June 19 layoff of Uli Plum,
Robert Moody, and Stephen Bernstein was discriminato-
ry in violation of Section 8(a)(3) and (1) of the Act, I
shall recommend that Respondent be ordered to offer
them immediate and full reinstatement, unless reinstate-
ment has already been offered, to their former jobs, or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges and make them whole for any loss
of earnings they may have suffered as a result of Re-
spondent's discrimination, until such time as Respondent
makes them a valid officer of reinstatement, with inter-
est. See F. W Woolworth Company, 90 NLRB 289 (1950);
Florida Steel Corporation, 231 NLRB 651 (1977).
As I have found that Respondent constructively dis-
charged Robert Tevolits on November 9, 1979, I shall
recommend that Respondent be ordered to offer him im-
mediate and full reinstatement, unless reinstatement had
already been offered, to his former job, or, if his job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges, and to make him whole for any loss of earnings he
may have suffered as a result of such discrimination,
until Respondent has made a valid offer of reinstatement,
with interest.
Upon the foregoing findings of fact, and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Winer Motors, Inc., the Respondent, is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Brewery and Soft Drink Workers, Liquor Drivers,
and New and Used Car Workers, Local 1040, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time new and used
foreign and domestic automobile sales persons employed
by the Employer; excluding office clerical employees,
service and maintenance employees, guards and supervi-
sors as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since October 5, 1979, the Union has been the certi-
fied bargaining representative of the employees in the
unit described above in paragraph 3, and is now the ex-
clusive representative of all the employees in the afore-
said bargaining unit for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By threatening employees with discharge because of
their support for the Union; by threatening employees
that it would be futile for them to select a union as their
bargaining representative; by threatening employees with
the denial of reinstatement unless they abandon their sup-
port and assistance to the Union; by threatening employ-
ees that no new employees would be hired until the em-
ployees abandon their support for the Union; by threat-
ening employees with physical harm if they joined, sup-
ported, or assisted the Union; by threatening employees
with layoff if they joined, supported, or assisted the
Union; and by soliciting employees to abandon their sup-
port of the Union, Respondent has engaged in conduct
violative of Section 8(a)(1) of the Act.
6. By discriminatorily laying off Robert Moody, Uli
Plum, and Stephen Bernstein on June 19, 1979, to dis-
courage membership in the Union; by changing the
working conditions of its employees by discriminatorily
instituting a written warning system, by discriminatorily
instituting a new method of payment in connection with
after-market services, and by issuing discriminatorily un-
warranted written warnings to its employees to discour-
age membership in the Union, Respondent has engaged
in conduct violative of Section 8(aXI) and (3) of the Act.
7. By unilaterally and without bargaining with the
Union implementing a written warning policy and
changing the method of marketing after-market services,
Respondent has engaged in conduct violative of Section
8(a)(5) and (1) of the Act.
8. By constructively terminating the services of Robert
P. Tevolits on November 9, 1979, because of his mem-
bership in the Union and in order to discourage member-
ship in the Union, Respondent has engaged in conduct
violative of Section 8(aXl) and (3) of the Act; by condi-
tioning Uli Plum's reinstatement upon his abandoning the
Union, and by refusing to reinstate Robert Moody be-
cause of his medical condition in order to discourage
membership in the Union, Respondent has engaged in
conduct violative of Section 8(a)(3) and (1) of the Act.
The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Upon the basis of the entire record, the findings of
fact, and the conclusions of law, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 2
The Respondent, Winer Motors, Inc., Stratford, Con-
necticut, its officers, agents, successors, and assigns, shall:
"1 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.
1471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. Cease and desist from:
(a) Soliciting its employees to abandon support for the
Union.
(b) Threatening employees that it would be futile for
them to select the Union as their bargaining representa-
tive.
(c) Threatening employees with denial of reinstatement
unless they abandon their support and assistance for the
Union.
(d) Threatening employees that no new employees
would be hired until the employees abandon their sup-
port of the Union.
(e) Threatening employees with physical harm if they
join, support, or assist the Union.
(f) Threatening employees with layoff if they join, sup-
port, or assist the Union.
(g) Laying off, constructively discharging, discharging,
or otherwise discriminating against its employees because
of their activities on behalf of the Union, or any other
labor organization, to discourage membership in the
Union or any other labor organization of its employees.
(h) Discouraging membership in the Union or any
other labor organization of its employees, by discriminat-
ing in regard to hire, tenure, or other terms and condi-
tions of employment.
(i) Unilaterally changing the working conditions of its
employees by instituting disciplinary warning systems or
initiating new pay plans, or in any other manner chang-
ing the working conditions of its employees without bar-
gaining with the Union.
(j) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Immediately discontinue its discriminatory warning
system, and immediately discontinue its discriminatory
new pay plan relating to after-market services.
(b) Upon request, bargain with the Union as the exclu-
sive representative of the employees in the above-de-
scribed unit at its facility in Stratford, Connecticut.
(c) Offer immediate and full reinstatement to Robert
Moody, Stephen Bernstein, Uli Plum, and Robert Tevo-
lits, unless reinstatement has already been offered, to
their former jobs or, if those jobs no longer exist, to a
substantially equivalent position, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have suf-
fered as the result of the discrimination against them.
(d) Immediately rescind all warnings issued to employ-
ees under the discriminatory warning system promulgat-
ed by Respondent.
(e) Post at its Stratford, Connecticut, facility copies of
the attached notice marked "Appendix."1 ' Copies of said
notice, on forms provided by the Officer-in-Charge for
Subregion 39, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Officer-in-Charge for Subregion 39, in
writing, within 20 days of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.
"1 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1472