Abrahamson Chrysler-Plymouth, Inc.

National Labor Relations Board - Board Decisions

Aug 17, 1976

225 N.L.R.B. 923 (N.L.R.B. 1976)

ABRAHAMSON CHRYSLER-PLYMOUTH, INC. 923
Abrahamson Chrysler-Plymouth , Inc. and American
Federation of Professional Salesmen , Petitioner.
Cases 13-CA-14585, 13-CA-14685, 13-CA-
14946, and 13-RC-13738
August 17, 1976
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATION
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On April 12, 1976, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in answer to Respondent's exceptions
and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
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,' findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.'
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 and hereby
orders that the Respondent, Abrahamson Chrysler-
Plymouth, Inc., Highland, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
CERTIFICATION OF REPRESENTATIVE'
It is hereby certified that a majority of the valid
votes have been cast for American Federation of
Professional Salesmen, and that pursuant to Section
9(a) of the National Labor Relations Act, as amend-
ed, the said labor organization is the exclusive repre-
sentative of all the employees in the following appro-
priate unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment:
cility located at 9850 Indianapolis Blvd., High-
land, Indiana.
Excluded: All office and clericals, automobile
mechanics, semi-skilled employees, parts depart-
ment employees, guards and supervisors as de-
fined in the Act.
1 Respondent excepts to the refusal of the Administrative Law Judge to
grant its several motions for continuances made at the commencement of
the hearing, opening of the second day of the hearing, and at the conclusion
of General Counsel's case The granting or refusal of a continuance is with-
in the discretion of the Administrative Law Judge, Board Rules and Regula-
tions, Series 8, as amended, Sec 102 43 We have carefully examined the
record and the exceptions and cannot say that the Administrative Law
Judge abused her discretion when denying Respondent's requests Taxicab
Drivers Union, Local 777, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Crown Metal Manufacturing Compa-
ny), 145 NLRB 197, fn 2 (1963), enfd 340 F 2d 905 (C A 7, 1964), Spiegel
Trucking Company, 225 NLRB 178 (1976)
2 On June 9, 1976, Respondent filed with the Board a motion for consoli-
dation of the present cases with a presently pending complaint in Case 13-
CA-15231, alleging that Respondent committed violations of Sec 8(a)(I),
(3), and (4) of the Act, for the purpose of holding a new and expanded
hearing The General Counsel opposes the motion on the ground that the
cases are not so intertwined as to mandate consolidation and rehearing On
the contrary, he asserts that he has already filed a separate motion for
summary judgment in Case 13-CA-15231 In view of the General Counsel's
opposition and his reasons stated therefor, Respondent's motion to consoli-
date is hereby denied
3 The tally of ballots in the representation election showed that 4 ballots
were cast for, and 2 against, the Union, with 2 ballots challenged The
Union challenged the ballot of Armond on the ground that he was a super-
visor and the Respondent challenged the ballot of Goffredo on the basis
that he was terminated prior to the election The Administrative Law Judge
found that Armond was a supervisor and ineligible to vote, and that Goffre-
do was discriminatorily discharged and therefore eligible to vote Accord-
ingly, she recommended that the challenge to the ballot of Armond be
sustained and the challenge to the ballot of Goffredo be overruled and his
ballot be opened and counted We have affirmed the Administrative Law
Judge's findings with respect to both Armond and Goffredo As Goffredo's
ballot can now no longer affect the outcome of the election, we shall not
adopt the Administrative Law Judge's recommendation that his ballot be
opened and counted Instead we shall certify the Union as bargaining repre-
sentative inasmuch as it has secured a majority of the valid votes cast in the
election
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge: Based
on a charge filed on August 8, 1975, in Case 13-CA-14585,
and a charge and an amended charge filed on September
12 and 22, 1975, respectively, in Case 13-CA-14685, by
American Federation of Professional Salesmen, herein re-
ferred to as the Charging Party or the Union, the General
Counsel, by the Regional Director for Region 13 (Chicago,
Illinois), issued an order consolidating cases, consolidated
complaint and notice of hearing, dated November 7, 1975,
scheduling the hearing for January 26, 1976.1 The Regional
Director issued an original report on challenges, order fur-
ther consolidating cases and notice of hearing, dated No-
vember 12, 1975, consolidating the issues raised by chal-
lenges to two ballots in Case l3-RC-13738 with Cases 13-
CA-14585 and 13-CA-14685, and directing that the Ad-
Included: All new and used automobile and
truck salesmen employed at the Employer's fa- 1 Hereinafter all dates refer to 1976 unless otherwise indicated
225 NLRB No. 129
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ministrative Law Judge who conducts the hearing sched-
uled for January 26 prepare and serve on the parties a
report containing resolutions of the credibility of witnesses,
findings of fact, and recommendations to the Board as to
the disposition of said issues, that thereafter Case 13-RC-
13738 be transferred to and continued before the Board,
and that the provisions of Section 102.69(e) of the Board's
Rules and Regulations shall govern the filing of exceptions.
Upon a charge and an amended charge filed by the Charg-
ing Party on December 8 and 30, 1975, respectively, in
Case 13-CA-14946, the Regional Director issued a com-
plaint and notice of hearing dated January 12, and an or-
der further consolidating cases dated January 14, consoli-
dating that case with the above-described cases to be heard
on January 26.
The consolidated complaint alleges in substance that the
Respondent 2 discharged Goffredo on or about June 25,
1975, and thereafter failed and refused to reinstate him,
and suspended Brooks on or about September 12, 1975, for
1 week, because of their Union and/or protected concerted
activities; interrogated employees about such activities, en-
gaged in surveillance, threatened reprisals, and discontin-
ued employment benefits in reprisal for such activities; by
this conduct interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed by Section 7 of
the Act, and discriminated against employees in regard to
their hire or tenure of employment, in order to discourage
union membership and activities on behalf of the Union or
other protected concerted activities by its employees; and
thereby engaged in unfair labor practices in violation of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended.
Pursuant to a request dated November 17, 1975, from
Clousson, counsel for the Respondent, for an extension of
time, which was granted, the Respondent filed its answer in
Cases 13-CA-14585 and 13-CA-14685 on December 12,
1975. In this answer the Respondent admits some of the
factual allegations of the consolidated complaint, including
the discharge of Goffredo and the suspension of Brooks,
but denies that this or any other conduct alleged in the
complaint violated the Act; asserts, as to the conduct al-
leged to constitute interference, restraint, and coercion,
that "Respondent has been deprived of sufficient informa-
tion to fully respond to any specific claims of acts commit-
ted by it, and therefore, is unable to defend against the said
conclusionary allegations," and, as to the allegation that
the Respondent, in or about the last 2 weeks of August,
posted new work and discipline rules for its sales personnel
in order to discourage their union membership and activi-
ty, and in order to discourage them from engaging in other
protected, concerted activities, that this "does not set forth
a cause of action"; and requests "dismissal of the Consoli-
dated Complaint and Notice of Hearing in this matter "
2
The name of the Respondent-Employer, designated in some documents
as Astro Chrysler-Plymouth, Inc , d/b/a Abrahamson Chrysler-Plymouth,
Inc , has been amended in accordance with a stipulation entered into by the
parties on the second day of the hearing Although counsel for the Respon-
dent indicated he was not certain of the name, and no Respondent official
was present, he entered into the stipulation with the proviso that he would
report if upon inquiry he found the amended name incorrect There was no
such report
The Respondent's answer in Case 13-CA-14946 was re-
ceived at the Regional Office, and placed in evidence by
the General Counsel, during the hearing on January 26. It
denies certain allegations and, as to others, asserts inability
to plead to them on the ground they are vague and ambig-
uous.
In a letter dated January 16, Clousson requested that the
hearing scheduled for January 26 be continued by the Re-
gional Director until February 16 "or thereafter ... based
upon the fact, among other things, that the undersigned
counsel for the Company is involved in a trial in the Cir-
cuit Court of Cook County . . . on January 26 . . . the
undersigned has not yet been given an opportunity . . . to
settle the allegations in the most recent Complaint and that
answer to those allegations is not due to be filed until im-
mediately prior to the said hearing. Also, the undersigned
has made request for certain information under the Free-
dom of Information Act and the Region's denial of those
requests is presently pending before the General Counsel
in Washington." In an Order dated January 21, this request
for a continuance was denied
Copies of various mailgrams are in evidence including
one sent by the Respondent on Thursday, January 22, to
the Executive Secretary of the Board, the Chief Adminis-
trative Law Judge, the Regional Director, and the union
representative, appealing the Regional Director's refusal to
grant a 2-week continuance because of counsel's trial
schedule in the Circuit Court of Cook County; a reply by
the Union on the same date stating that a postponement
after witnesses had been scheduled would be a hardship on
all involved; and another by the Respondent to counsel for
the General Counsel that counsel for the Respondent
would not be present at the hearing on January 26.
Pursuant to the notices of hearing described above, the
hearing was opened by the Administrative Law Judge at 11
a.m. on January 26. Counsel for the General Counsel
Crawford made a statement for the record that the Region-
al Office was informed late on Friday afternoon, January
23, that the Respondent "had filed a petition for injunctive
relief in the Federal District Court seeking an injunction
against continuing this proceeding on the grounds that
General Counsel had failed to comply with Respondent's
request under the Freedom of Information Act"; that the
matter was being argued that morning by a representative
of the Respondent and counsel for the General Counsel
Morris; and that "we were also advised late Friday af-
ternoon and again this morning that counsel for the Re-
spondent, having been denied the information requested
under the Freedom of Information Act and having been
denied a request to continue this hearing to a later date has
decided that he will not appear, nor will Respondent's wit-
nesses appear." While this was being discussed, counsel for
the General Counsel Morris and the union representative
appeared, as well as James Hendricks, who stated that he
was "appearing on behalf of Abrahamson. We filed a mo-
tion . . . for an extension of time, if not a continuance";
that he was "not making a formal appearance . . . was not
the attorney for the Respondent," but had come on behalf
of Clousson "to indicate to your Honor, although the indi-
cation was given last week to the Regional Director here
that he would not be available to come to the hearing this
ABRAHAMSON CHRYSLER-PLYMOUTH, INC 925
morning because he is in the Circuit Court of Cook County
on another matter this morning"; and that "We have asked
the Board for a continuance . . The Board chose not to
continue this matter . . . we are asking the Administrative
Law Judge for a reasonable continuance in this matter un-
til the trial attorney can be prepared to go forward . . . we
aren't asking for anything exorbitant or something of that
nature. I have no idea how long Mr. Clousson's trial will
last, nor does he... .
The General Counsel urged that a continuance be de-
nied on the grounds that the date for this hearing had been
set on November 7, 1975; there was no request for a con-
tinuance until a letter dated Friday, January 16, was re-
ceived by the Regional Director on Monday, January 19;
the request was denied on January 21, and a repeated re-
quest was also denied; and the issues involved in the com-
plaint cases and with respect to the challenged ballots in
the representation proceeding made it imperative to pro-
ceed with the hearing. The General Counsel also argued
that Hendricks appeared as counsel for the Respondent in
the District Court proceeding seeking a temporary restrain-
ing order,' that Hendricks was involved initially in this
matter with Clousson, and that Clousson was a member of
a law firm, so Hendricks or a member of the firm could
have been made available to represent the Respondent in
Clousson's absence. Griffith, the Union's secretary-treasur-
er, who filed the charges, also opposed any continuance on
the grounds that a request therefor sent to him by counsel
for the Respondent indicated Clousson had known since
November about the Cook County trial scheduled on Jan-
uary 26, and that, in addition to the Administrative Law
Judge and the representatives of the General Counsel and
the Union, the witnesses to be called by the General Coun-
sel and the Union were present.
The Administrative Law Judge denied the motion for a
continuance and requested that Hendricks cross-examine
the General Counsel's witnesses until Clousson became
available. Hendricks declined, asserting that he was not the
attorney of record, was not prepared to participate in the
hearing, and was present only "as a courtesy to the Board
to inform them why Mr Clousson was not present." He
was then requested by the Administrative Law Judge to
inform Clousson that the hearing would proceed.
The General Counsel placed in evidence various docu-
ments, including a motion to dismiss complaint, filed by
Clousson on January 20, stating that the allegations of un-
fair labor practices are too vague and ambiguous to permit
the Respondent to prepare for hearing, that the "Respon-
dent would accept a more definite statement of the allega-
tions curing the fatal defects" but its request therefor had
been rejected by the Regional Office and was being ap-
pealed to the General Counsel, and that as it had not re-
ceived a response to its request for a continuance until on
or after February 16, it assumed the request was granted;
J
The court in a memorandum opinion issued on January 29 (Abrahamson
Chrysler-Plymouth v N L R B, 91 LRRM 2343 (1976), points out that the
motion for a temporary restraining order "was not presented until 10 a in
on January 26, 1976, and the administrative hearing was scheduled to go
forward at I I am on that date," states that the matter was taken under
advisement, and denies the motion
the General Counsel's opposition urging the sufficiency of
the complaint and answering each of the contentions made
in the motion to dismiss; the documents filed in the Dis-
trict Court injunction proceeding; and a subpoena ad testift-
candum served on Leo B. Abrahamson, and a subpena duc-
es tecum served on the Respondent. Abrahamson never
appeared at the hearing and the documents requested were
never furnished.'
The General Counsel then made an opening statement.
Thereafter he called Griffith, who testified about the orga-
nization of the Respondent's employees and the election.
The General Counsel next called Goffredo to testify. At
this time Hendricks, who had left the hearing room, re-
turned and stated he had been unable to get in touch with
Clousson. During the ensuing discussion, the Administra-
tive Law Judge commented that: "the motion for an ad-
journment as indicated earlier was untimely. . . . Mr.
Abrahamson himself has not appeared, although he was
under subpena, and no one has appeared pursuant to a
subpena duces tecum which was issued to the Respondent.
You are not prepared, I take it, to present any of the docu-
ments sought in that subpena duces tecum, and Mr. Abra-
hamson, as far as you know, is not prepared to put in an
appearance?" Hendricks responded that, "beyond a re-
quest by Mr. Clousson that I appear in his behalf in Dis-
trict Court this morning, I'm not well aware of the facts in
this trial, in this case in preparation of the trial." Hendricks
took notes during the General Counsel's examination of
Goffredo, but declined the opportunity to cross-examine.
The Administrative Law Judge then announced a lunch-
eon recess, earlier and longer than usual, with a request
that Hendricks communicate with Clousson and report
back "as to the likelihood of Mr. Clousson being present
while this hearing is in progress."
When the hearing resumed the following colloquy took
place -
MR. HENDRICKS. . . . I met with Mr. Clousson at
lunch, while he was in recess from his hearing at Cir-
cuit Court, and he asked me to convey to the Judge
that he had attempted to notify the Board and the
Chief Judge of his unavailability for trial, so as to
avoid a lengthy trial, that being the case and nature of
his litigation this morning. He assured me that he did
not see, the way the case was progressing, that it
would last longer than tomorrow, which is Tuesday.
On the basis of that, we would ask then that this mat-
ter here before you be adjourned until Thursday
morning, at which time Mr. Clousson will be available
to proceed. We would ask at that time he would be
given the right to cross-examine the witnesses present-
ed against his client. We are attempting-or, he is at-
tempting at any rate, to do something which will allow
this matter to proceed so that his client is represented
by counsel.
JUDGE SCHLEZINGER: Well, I think it would be very
desirable if his client were represented by counsel. I
take it neither the client nor counsel are here?
4 I find no Justification for this in the assertion, made by Clousson on the
second day of the hearing, that the documents in question were apparently
not necessary as the General Counsel had proceeded without them
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. HENDRICKS: That is cprrect.
JUDGE SCHLEZINGER : I take it he considered this mat-
ter in court more compelling than this proceeding, as
to which he has had notice since November.
MR. HENDRICKS: I believe both were docketed ap-
proximately the same time... .
JUDGE SCHLEZINGER : . . . counsel has not seen fit to
appear at all. He has sent you to make the motion for
the continuance. I take it you are not prepared to ex-
amine witnesses . He has not made available anyone
else in his office who is prepared to examine witnesses.
MR. HENDRICKS: And, Judge, you will note from the
Mailgrams which I have given you, Mr . Clousson then
sent Mailgrams to all the parties concerned attempting
to appeal the decision of counsel for General Counsel
in denying that request because of his unavailability.
JUDGE SCHLEZINGER: . . . Assuming your Mailgram
was in the nature of an appeal, it hardly gave the Gen-
eral Counsel time to act on it before the scheduled
opening of the hearing.
MR. HENDRICKS: That is why Mr. Clousson asked
that I be present today, and that I convey those atti-
tudes for him and ask for a brief , just a brief continu-
ance for postponement of this hearing.
MR. MORRIS: Your Honor, I think it should be not-
ed on the record that in addition to the very lateness
of any request for an extension in this case due to the
fact that the case was originally set for hearing on
November 7, nevertheless, when Mr. Clousson came
back after his appeal was denied on the 21st , there was
an attempt to see if any Administrative Law Judges
would be available within a short period of time, and
as you are probably acquainted with the schedule, it
was full until May, June, July of this year, and it was
determined that with an employer who was continuing
to violate the Act in a representation matter at issue
here, and with other factors in consideration, that an
extension would not be proper . There was no indica-
tion, although this matter was scheduled November 7,
to have a continuance in his other matter, and I hardly
think that counsel should be permitted simply not to
appear and then to ask for continuances . I don't think
that is the way the Labor Board can function and han-
dle its case load in a proper manner and justify the
Act which Congress has given it to enforce.
MR. HENDRICKS Judge, all I can answer to you is
how can an attorney be in two courts at the same time
JUDGE SCHLEZINGER: . . . in the opinion of the Gen-
eral Counsel, I take it, he should be here, and that is
my opinion also. It 's not been an adequate explana-
tion in my judgment of his failure to appear here, of
his failure to have his client here pursuant to subpoe-
na, of his failure to have documents here pursuant to a
subpoena , and with his failure to have counsel here
who can act in his stead, if he chooses to be present at
some other proceeding . In those circumstances, I will
proceed with the hearing.
MR. HENDRICKS : Judge, if I might then on behalf of
Mr. Clousson , he would like to appeal . He would like
on behalf of the Respondent , would like to request
permission to appeal your decision pursuant to Rule
and Regulation 102.26 and recess this hearing for two
days so he can accomplish that appeal.
JUDGE SCHLEZINGER . He may appeal my ruling, and
the motion to recess while he does so is denied. . . . I
feel the Respondent has had adequate opportunity to
appear , has failed to appear or make someone else
available in his stead The witnesses are all here. Gen-
eral Counsel is here. Union Representative is here. I
think it's quite suitable that we proceed.
MR. HENDRICKS : Thank you for your consideration.
Hendricks left the hearing room again at some point af-
ter Goffredo completed his testimony. The only other wit-
ness who testified that day was Brooks. The General Coun-
sel then placed in evidence a telegram that the Board sent
that morning to the Regional Director, the union represen-
tative , Hendricks , and Clousson , denying the Respondent's
request for special permission to appeal the Regional
Director 's order denying the request for continuance of the
hearing. The General Counsel stated that he had received
no word from the Respondent in response to the Board's
telegram . The Administrative Law Judge then requested
that the General Counsel , during a recess, try to determine
from Hendricks or Clousson if that telegram had affected
the intention of counsel for the Respondent to appear at
the hearing. The General Counsel reported back that he
was told by Hendricks' office that Hendricks had left for
the day, and by Clousson's secretary that Clousson was out
and she did not know where he was or how he could be
reached , and that a message was left at each office. The
Administrative Law Judge then requested the General
Counsel to leave a further message that the hearing was
being recessed until 10 o'clock the next morning in order to
afford counsel for the Respondent an opportunity to con-
sider the Board's ruling and determine if the Respondent
would be represented for the remainder of the hearing, and
that, if the Respondent was unrepresented the next day, the
General Counsel and the Union had stated that they ex-
pected to complete their presentation of evidence by early
afternoon.
When the hearing resumed the next morning, Clousson
entered his appearance as Respondent 's counsel , intro-
duced certain documents into evidence , including a tele-
gram sent to the Board the preceding day requesting per-
mission to appeal from the Administrative Law Judge's 5
"refusal to allow a short recess ... for the purpose of
permitting Respondent to present evidence in answer to
charges against it and to confront and cross -examine wit-
nesses against it. Refusal to permit Respondent to partici-
pate in the hearing violates principles of due process and
fair hearing. Any finding adverse to Respondent in such
circumstances is invalid and unenforceable . Further re-
quest the Board to allow Respondent 's motion that present
hearing be recessed until the Board acts on this appeal."
5 The telegram named another NLRB Administrative Law Judge
ABRAHAMSON CHRYSLER-PLYMOUTH, INC 927
Clousson then stated: "And one other thing, your Honor,
before we commence. If I had been here I would have filed
a motion yesterday. I 'realize that now, probably at this
stage of the proceeding that the motion is probably untime-
ly, but it would have been filed with your Honor at the
commencement of the hearing, and I would like the
Court's permission to file at this time, just for the record
purposes ..." The document was the Respondent's mo-
tion to dismiss complaint, dated January 20, which the
General Counsel had introduced. Clousson also placed in
evidence the Respondent's motion for continuance, dated
January 23 and received on January 26 during the hearing,
and commented that he would like to have it in the record
although, while he was "not familiar with all the things that
occurred. A representative on my behalf came here to
make a similar motion to the Court sometime yesterday."
Clousson then stated he had no further matters before the
General Counsel called his next witness, who was An-
drews.
At the conclusion of the direct examination of Andrews,
Clousson stated that "to cross-examine a witness concern-
ing matters which were testified to at some length by previ-
ous witnesses, and without having the testimony of those
witnesses before me, and I can tell you as an attorney who
has some experience in these kinds of matters, that that is
an impossibility. It's dust an impossibility for me to do a
good job for my client without seeking what-how his tes-
timony fits in to the testimony of the other witnesses which
have occurred, come before." He then urged that a contin-
uance be granted until he could obtain the transcript from
the reporter, read it, "and at that point I'll be prepared to
not only cross-examine the witnesses, but also to put on my
testimony. . . . otherwise . . . you are saying that the
Respondent's witnesses, without having the ability to hear
the testimony against them, will be asked to respond to
that testimony. Of course, that is inconceivable from the
aspects of a fair hearing and due process in a matter... .
I don't know when the reporter can get the transcript, pre-
sent it here for my reading, but as soon as the reporter can,
then we can proceed."
The General Counsel "strenuously" opposed the
Respondent's request on the grounds that it was for an
indefinite continuance, that counsel for the Respondent
chose not to appear on the preceding day although under
notice since November 7, 1975, that prior repeated requests
for a continuance were denied as untimely, and that coun-
sel heard the direct testimony of Andrews.
The Administrative Law Judge denied the request for a
continuance on the grounds that had been stated by the
General Counsel, urged that Respondent's counsel cross-
examine Andrews on the basis of the testimony he heard,
and suggested she "would certainly entertain a reasonable
request, not for a continuance, but for some other method
whereby, with the cooperation of counsel for the General
Counsel and of the reporter, counsel for the Respondent
may be apprised of who the witnesses were and in general
what their testimony covered. That could be done, possi-
bly, during a luncheon recess or at some other time at the
convenience of all concerned " The following colloquy en-
sued:
MR. CLoussoN: Counsel moves for a mistrial at this
time on the grounds that the Examiner's directive and
rulings to now have created prejudicial error in this
matter, and have been based, apparently, on false in-
formation, further than that which the Examiner ap-
parently has or the Judge apparently has. I keep hear-
ing these statements being made with regard to why
counsel for Respondent was not here, which are false
and not only false, but definitely in error, as the record
will show. It's prejudicial error, your Honor, and I
move at this time for a mistrial on that basis.
Now, the prejudice occurs in the Board proceeding
in an arbitrary and capricious manner, to hold this
hearing regardless of the consideration of the rights of
the Respondent to confront witnesses, to cross-exam-
ine witnesses and to be represented during the hearing.
And, make no mistake about it, as I say again, this is
a serious matter, and we feel it's a prejudicial error,
and we request the Court at this time to so find and to
declare that to be a mistrial in this particular matter,
and then we can resume the hearing again.
JUDGE SCHLEZINGER: The request is denied. I will not
declare a mistrial.
MR. CLOUSSON: Then, your Honor, I must assume
from, based upon your rulings in this matter to date,
and I cannot assume otherwise because the Court does
not know me, I must assume that the Court's rulings
are based upon some prejudice against my particular
client, which is shown by the rulings which have been
engaged in, without real consideration by this Court.
And, I ask this Court then to disqualify itself from
further proceeding in this particular matter, because
obviously there is some prejudice here, some where,
because there has been nothing set forward as to why
this Court has decided to proceed in such a manner
and such a derogation of the rights of this particular
Respondent. It must be some type of prejudice against
him, and I don't think, therefore, that this Respondent
can get any due process here.
JUDGE SCHLEZINGER: If you are requesting that I dis-
qualify myself, the request is denied.
MR CLOUSSON. That is correct.
JUDGE SCHLEZINGER: I resent your implication, not
dust an implication but a statement that I'm prejudiced
against your client. I have no reason in the world to be
prejudiced against your client. I never heard of your
client until I was assigned to hear this case. The rea-
sons for denying the repeated requests for postpone-
ment were stated yesterday in the presence of your
representative and on the record. They were that the
request in my opinion was not made timely. . . . And,
that the reason given that counsel was present in a
court proceeding, which apparently he decided was
more important than your client's presence here; that
he made no one else available who could represent
him for purposes of conducting this hearing; that his
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
client, who was under subpoena, was not present; that
documents which had been subpoenaed were not
available in the court room; that I considered the
Respondent's conduct in this matter contemptuous of
the Board. For that reason, for all of these reasons, the
requests made yesterday on behalf of counsel for the
Respondent were denied. The repeated requests now
for postponement, for a continuance, are likewise de-
nied. The question now is does counsel wish to cross-
examine the witness on the stand.
MR. CLOUSSON: He is unable to do so, your Honor
Clousson examined some witnesses on voir dire as to cer-
tain documents, and cross-examined some witnesses to a
limited extent.
When the General Counsel and the Charging Party com-
pleted their presentation of testimony, Clousson stated that
he could not go forward with the Respondent's evidence as
he had not heard the witnesses who testified on the preced-
ing day and that "I therefore request a continuance until
the record has been-we have had an opportunity to look
at the record to see what we have to respond to . .." At
this point the General Counsel stated that he had been
administratively advised that the Board had issued a tele-
gram "denying Respondent's request for permission to ap-
peal the Administrative Law Judge's decision not to grant
a continuance ..." Counsel for the General Counsel also
stated several grounds on which "I strenuously urge that
the late request for a continuance be denied "
In the course of discussing the Respondent's motion, the
Administrative Law Judge stated.
We have previously discussed this identical motion;
namely, that the hearing be recessed until the tran-
script is available, which would be at least ten days,
and until the Respondent has had an opportunity to
study it. In the earlier discussion, I suggested as an
alternative that with the cooperation of counsel for the
General Counsel and the reporter, counsel for the Re-
spondent could be apprised of what witnesses have
testified and the nature of their testimony. Counsel for
the Respondent has chosen not to proceed in that
manner, which I think could be done very quickly and
adequately for the purpose of cross-examining the
General Counsel's witnesses, and for the purpose of
putting on the Respondent's defense. Therefore . .
I'm denying the motion ... that we adjourn this hear-
ing until the transcript is available and the Respon-
dent has had an opportunity to study it.
If counsel for the Respondent wishes to suggest
some other procedure which will not be as time-con-
suming, I'm ready to give any alternative suggestion
every consideration so that the Respondent may pre-
sent its case.. .
You have, of course, heard some of the witnesses
Your representative who appeared yesterday on two
different occasions, on the second occasion heard one
of the witnesses, and took notes during the testimony.
Clousson offered to go to the expense of ordering daily
copy, and to "whittle" down to 2 days his request for a
recess, but asserted he was not willing to have the General
Counsel inform him of the testimony that had been pre-
sented in his absence. The Administrative Law Judge
thereupon commented:
Counsel for the Respondent has indicated that he
rejects the idea of determining in a discussion with the
General Counsel what transpired in the testimony that
was taken while counsel for the Respondent was not
here.
Do you reject also the idea of asking the reporter
possibly by reading the notes taken during that testi-
mony or in some other way apprising yourself of the
contents of that testimony. I don't recall at the mo-
ment how many witnesses were involved. We spent
part of yesterday also discussing motions. The whole
day was not devoted to taking testimony. If such
method could be arrived at, I would be agreeable to
adjourning at this time to resume a little later than
usual in the morning to give counsel for the Respon-
dent and the reporter a reasonable time to review the
notes taken with regard to those few witnesses who
testified while counsel for the Respondent was not
present.
I am not willing and the Administrative Law Judges
Division is not able to spare me to sit around all day
tomorrow until daily transcript could be available, as-
suming it could be available tomorrow.
Clousson responded as follows:
Well, you are asking me to go over a full day's testi-
mony by the leading, primary witnesses in this man-
ner, some time between 4:00, what it is now, and a
later time tomorrow morning, and then I-that is an
unreasonable request. I've made a suggestion that we
could get that done by Thursday, and I think that is
the only way that we can conceivably get it done. By
the time I go through whatever it is, four, five hours of
testimony from notes which were taken by the report-
er . . . no, I'm not going to work all night. Now, if we
can get that done and be here on Thursday, I could do
it.
The Respondent's motion to adjourn until Thursday was
denied. Closing argument was presented by the union rep-
resentative but waived by the General Counsel. The Re-
spondent was then invited to "present witnesses, closing
argument, motions, whatever counsel for the Respondent
sees fit." Thereafter the following colloquy took place:
JUDGE SCHLEZINGER' Well, counsel for the Respon-
dent has been offered the opportunity to cross-exam-
ine the witnesses who have testified or to present his
own witnesses sometime tomorrow, and he has indi-
cated that he is unable to do so. I take it in those
circumstances, Mr. Clousson, it is your decision to
present nothing further in the matter.
MR CLOUSSON• Well, your Honor, we don't even
know who has been named in this record as possible
witnesses, who they want to call to have in here on
such short notice, so we would-
ABRAHAMSON CHRYSLER-PLYMOUTH, INC
JUDGE SCHLEZINGER' That information would be fur-
nished very quickly.
MR CLOUSSON: I want to proceed-I want to pro-
vide a response. I can't tell what witnesses I'm going to
need until I read the testimony or until I know what
has happened in the hearing. There is no way. So, I've
suggested Thursday, and I can proceed on Thursday, I
think with daily copy, I think which I've said I will
obtain. But, I can't-I don't think it's reasonable to
expect us to proceed tomorrow, and I will not do so.
The hearing was closed with no further testimony present-
ed.
On February 19, the Respondent filed a motion to re-
open hearing. On February 27, the General Counsel filed a
response and opposition to Respondent's motion. On
March 1, the Administrative Law Judge issued an order
denying motion to reopen hearing. On March 15, the Re-
spondent filed with the Board a request for special permis-
sion to appeal Administrative Law Judge's Order The
Board in a telegraphic order on March 24 denied this re-
quest "on the ground that Respondent had ample notice of
the hearing date prior to opening of hearing so counsel
could be present." 6 On or about March 23, the General
Counsel filed a brief and the Respondent filed a memoran-
dum, both of which have been duly considered.
Upon the entire record in this case, including the an-
swers of the Respondent duly filed by its counsel, the "fail-
ure of the Respondent by its officials or counsel to appear
at the scheduled hearing in accord with the duly served
notice and subpenas," 7 the belated appearance and limited
participation in the hearing by counsel for the Respondent,
and the testimony and documentation offered by the Gen-
eral Counsel and the Union, and from my observation of
the witnesses who testified, I make the following:
6 The Board sent this telegram to both Hendricks and Clousson
r N L R B v Hyos de Ricardo Vela, Inc, and Vela Distributing Corp, 475
F 2d 58 (C A 1, 1973), in which the court also stated
The Examiner's responsibility was to weigh the inconvenience and pos-
sible unfairness to others of a postponement against the particulars of
counsel 's asserted hardship Counsel had an associate , and could
have engaged other co-counsel Nor were the Examiner and Board
under any obligation to permit respondents to cure their default in a
reopened proceeding [Citations omitted I
With regard to the responsibility of Abrahamson, as head of the Respon-
dent and under Board subpena , to appear or to be represented at the hear-
ing, see also Certified Building Products, Inc, 208 NLRB 515, enfd 528 F 2d
968 (C A 9, 1976) As to the Respondent's contention that a continuance
should have been granted because of the added complaint that was consoli-
dated with the others about 2 weeks before the scheduled hearing, the
Board, in Local 248, Meat & Allied Food Workers (Milwaukee Independent
Meat Packers Association), 222 NLRB 1023 (1976) found no merit in a
contention that the respondent therein should have been granted contin-
uances to prepare its defense in view of amendments to the complaint made
at the hearing
Finally, I am convinced, and find, upon a review of all the relevant cir-
cumstances , that counsel for the Respondent , who knew for months of his
conflicting trial dates before he asked for a postponement of the Board
proceeding, could not compel the postponement, which had been denied, by
not appearing on the scheduled date , and, further, that he was not entitled,
after he appeared on the second day of the hearing , to more time than the
Administrative Law Judge offered to make available for him to determine
and consider the relatively brief testimony that was presented in his absence
so he could proceed with the Respondent 's case United Electrical Supply
Company, Inc, 222 NLRB 749 (1976)
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
929
The Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of Indiana. It maintains its
principal place of business at Highland, Indiana, where it is
engaged in the retail sale and service of new and used auto-
mobiles and trucks. The Respondent's gross revenue annu-
ally is in excess of $500,000, and it purchases and receives
goods annually valued in excess of $50,000 directly from
points outside the State of Indiana. The complaint alleges,
the Respondent in its answer admits, and I find, that the
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent in its answer ad-
nuts , and I find that American Federation of Professional
Salesmen is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issues
The consolidated complaint alleges that the Respondent
discharged Goffredo and suspended Brooks for a week be-
cause of their union and/or protected concerted activities,
and on certain dates interrogated and threatened employ-
ees, engaged in surveillance, adopted and posted new work
and discipline rules, and engaged in economic reprisals, in
order to discourage Union and protected concerted activi-
ties , and thereby violated Section 8(a)(1) and (3) of the Act.
The Respondent, in its answers to the complaints, admits
that Leo B Abrahamson, president and part owner, and
Elaine Abrahamson, part owner, were agents of the Re-
spondent, denies that Tim Crowley was sales manager, and
denies that it engaged in conduct violative of the Act.
The witnesses called by the General Counsel, in addition
to Griffith, were Goffredo, a salesman who was terminat-
ed, Brooks, a salesman who was given a week's suspension,
and salesmen Andrews, Bastasich, and DeBoer Some of
the employee witnesses were examined also by Griffith
with regard to representation case issues, and were cross-
examined to a limited extent by counsel for the Respon-
dent. I found Griffith and all five salesmen who testified
candid, forthright, and convincing witnesses, whose testi-
mony was consistent and mutually corroborative and was
not refuted by the Respondent. Accordingly, I find that
they were credible witnesses, and make the following find-
ings on the basis of the credited testimony and the entire
record.
B. Organization of the Union
In June 1975 Goffredo discussed union organization
with a salesman at an organized agency, who referred him
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Griffith. Goffredo got in touch with Griffith on or about
June 20 , and they arranged a meeting that was held at a
motel in Hammond , Indiana, on the evening of June 24, at
which Griffith talked about union procedures and benefits.
The salesmen present were Goffredo, Brooks, Bastasich,
Andrews, and Rossman , who signed union cards and paid
the first month 's dues of $10 , and Waylen who did not.
Two other salesmen , Michaelson 8 and Finarty, were invit-
ed to the meeting but did not attend . Griffith filed an elec-
tion petition with the Board on June 25, 1975, and sent the
Respondent a letter requesting recognition , with which he
enclosed a copy of the petition and photostats of the signed
union cards.
On the day after the union meeting , Goffredo, Brooks,
and Andrews , as each of them testified , were in the new car
showroom 9 when Michaelson came over and discussed
where he might go to get a sandwich . This was unusual as
the salesmen , who worked a 6-hour shift , 9 a.m. to 3 p.m.
or 3 p .m. to 9 p . m., on alternate days, did not customarily
take a lunchbreak . Michaelson left in a used car. About 10
minutes later , Andrews happened to pick up a telephone
on which Michaelson was calling Abrahamson,10 told Gof-
fredo and Brooks someone was "snitching" about the
Union, and they picked up their telephones on that line.
Goffredo testified that he heard Michaelson refer to the
union activities , state where the meeting was held, name
those who were at the meeting , name himself and Finarty
as the only salesmen who were not there , and state that
Goffredo "had been the ringleader .. . the instigator and
the organizer of bringing the Union in there ." Brooks testi-
fied that he heard Michaelson say he could not discuss the
matter at the agency because of the other salesmen there,
then report there was a union meeting, where it was held,
and who was present , and report also that all the salesmen
were there except Finarty and himself
Brooks testified that a little later he was about to make a
call on a telephone line that appeared to be not in use, but
heard Mrs . Abrahamson on the line inquiring of a motel
clerk whether any union meetings were held in a particular
room at the motel the preceding evening, whether any of
the Respondent 's salesmen attended , and named some of
the salesmen , and heard the clerk respond that the room
was rented to a single individual , not Griffith, and was not
used for a union meeting Goffredo, who also listened in on
this call, testified to the same effect.
C. The Discharge of Goffredo
Goffredo was employed by the Respondent as a sales-
man on or about May 19, 1975. He served a 1-week proba-
tion , at the end of which he was given a demonstrator car
that another salesman had been driving. It was, like de-
monstrators that were assigned at that time to other sales-
men, an expensive luxury model with much optional equip-
ment. Goffredo testified that, during the approximately I
8 Also referred to in the record as Michaels
9 All the Respondent 's salesmen sold both new and used vehicles
10 Goffredo testified that the agency had about 10 telephone lines, but
occasionally someone picked up a telephone on a line that was in use be-
cause the lights signaling which lines were busy did not always work
month of his employment , he sold 21 cars at a time when
other salesmen were selling an average of 15 a month, and
that Abrahamson complimented his work several times at
sales meetings.
Goffredo testified that, about 10 minutes after the Mi-
chaelson telephone conversation with Abrahamson that he
overheard , he was summoned by intercom to Abra-
hamson 's office where both Abrahamsons were pres-
ent; Abrahamson asked for the keys to his demonstrator;
when he asked why Abrahamson repeated his demand for
the keys and asked where they were; when he said they
were in his suit jacket in his office they both went to that
office and , when he put the jacket over his arm, Abra-
hamson tried to take it from him, threatened him with
physical violence , and again demanded the keys; he said if
he was terminated , he would like to have Abrahamson say
so, and pay him what was due him up to that time; Abra-
hamson said he had intended to settle up what was owed
but, in view of Goffredo's attitude , would not do so then
but at some later date , although Goffredo said he needed
the money ; at Abrahamson 's direction , the porter towed
the car to the back of the building where it was completely
blocked from being driven ; and Abrahamson refused to
permit him to remove his personal property from the car
until he surrendered the keys, which he continued to refuse
to do. Goffredo also testified that Abrahamson finally told
him, "You wanted a Union, now you have it. You are
fired"; Abrahamson then gave him 15 minutes to leave or
the police would be called ; he went to where his demons-
trator was and gave the keys to Riminsky , the body shop
foreman, who allowed him to remove his personal effects;
and Andrews then took him to where he had left his own
car
Brooks testified that he was on the showroom floor and
heard Goffredo summoned on the intercom to Abraham-
son's office , he heard the altercation when Abra-
hamson was demanding the keys and Goffredo was de-
manding his pay; he heard Abrahamson direct the porter
to tow Goffredo 's demonstrator to the back of the building
and block it in, which the porter did ; and he heard Abra-
hamson say , "Now you've got the Union and you are the
first one to go on the showroom."
Andrews testified that he saw Abrahamson and Goffre-
do walking through the showroom and overheard their
conversation at that time; Abrahamson asked for the keys;
Goffredo asked whether he was discharged, asked for his
pay if he was, and said he would not give up the keys until
he got his personal property out of the demonstrator;
Abrahamson ordered the porter to tow the demonstrator to
the rear of the building , which the porter did; and Abra-
hamson said , "We'll see about a Union."
Goffredo returned to the dealership on Friday , June 27,
which was a normal pay day, to pick up the pay due him. It
was the Respondent 's practice to have the checks prepared
at 3 p . m. and distributed to those on the first shift, and
then to those on the later shift as they arrived When Gof-
fredo came in at 3 p.m., however, Abrahamson told him
the computer had broken down and the checks would not
be ready until about 5 p m. Goffredo said he would come
back then and, when Abrahamson said the check would be
mailed, repeated that he would come back to get it. Goffre-
ABRAHAMSON CHRYSLER-PLYMOUTH, INC 931
do returned at 5 p.m. and picked up his check from Brooks.
It was in the amount of $63 whereas, he testified, it should
have been for about $419. He testified that he waited to see
Abrahamson, who had someone with him; finally Mrs.
Abrahamson came to the lounge where he was waiting and
asked what he wanted, and, when he replied he wanted
what was due him, his salary for the week, she said any-
thing that was owed him would be mailed; he insisted this
was his money which he had earned and needed and he
wanted it at that time; she then called the night clerk out of
the office adjoining the lounge, which had a window open-
ing on the lounge, and said Goffredo was threatening her;
Goffredo asked the clerk, who had been standing near the
window, if she heard him threaten Mrs. Abrahamson; and,
when the clerk said she did not, Mrs. Abrahamson told the
clerk to return to her office. Thereafter Goffredo received
one other check in the mail for about $72.
Brooks testified that the office girl gave him a check to
deliver to Goffredo, which he did when Goffredo came in
at 5 p.m He also testified that he later heard Goffredo
argue with Mrs. Abrahamson that more money was due
him and, when Mrs. Abrahamson said it would be sent,
that he wanted and needed the money at the time; heard
Mrs. Abrahamson call in the cashier and say Goffredo was
threatening her; heard Goffredo ask the cashier if this was
so, and heard the cashier deny it.
The Respondent discharged Goffredo on the day after
the union organizing meeting and minutes after being told
of the meeting and of Goffredo's leadership in the organiz-
ing activity. The discharge was precipitate, without warn-
ing, effective immediately, and without any statement of
reasons other than a reference to the union activity. I find,
based on all the relevant circumstances and the record as a
whole, that the Respondent discharged Goffredo on June
25, 1975, and thereafter failed and refused to reinstate him,
because of the report of Goffredo's leadership in the union
activity, and thereby discriminated against employees in
regard to their hire or tenure of employment in order to
discourage union activities, in violation of Section 8(a)(3)
and (1) of the Act. I find further that the Respondent, by
Abrahamson's remarks to Goffredo, heard by other sales-
men, indicating the discharge was because of union activi-
ties, made threats to discourage union activities, and there-
by interfered with, restrained, and coerced employees in
the exercise of their Section 7 rights, in violation of Section
8(a)(1) of the Act."
D. The Suspension of Brooks
The Respondent had a booklet of work rules which it
had apparently given to some but not to all the salesmen.
This set of rules, placed in evidence by the General Coun-
" N L R B v Melrose Processing Co, 351 F 2d 693 (C A 8, 1965),
N L R B v Central Press of California, 527 F 2d 1156 (C A 9, 1975), in
which the court held, inter alia, that neither the adverse credibility determi-
nations nor questions to witnesses by the Administrative Law Judge sup-
ported the respondent 's allegations of judicial bias , as Clousson asserted at
the hearing regarding questions put to witnesses by the Administrative Law
Judge , Akron Convalescent Care, Inc, d/b/a Fairlawn Chateau and W & D
Enterprises Inc, 221 NLRB 81 (1976), Board Ford, Inc, 222 NLRB 922
(1976)
sel, provided inter alga that an employee was subject to
discharge for absenteeism of 3 consecutive days without
notice to the department supervisor. About 3 weeks after
the election on August 12, 1975, the Respondent posted on
the bulletin board a new set of rules for the salesmen,
placed in evidence by the General Counsel, that listed 14
types of improper conduct and the action to be taken if the
conduct were repeated. These rules listed "12. EXCESSIVE AB-
SENCES, The warning will be given after excessive absences,"
and provided for a warning the first time, a 1-day suspen-
sion the second time, and discharge the third time.
Brooks, who was employed by the Respondent as a
salesman for over 5 years, was with Goffredo when the
latter called a salesman at another agency about union or-
ganization, attended the organizing meeting about which
Michaelson informed Abrahamson, and was a union poll
watcher at the election on August 12, 1975. Brooks testified
that he was ill on September 8 and 9, 1975, and notified the
Respondent's office girl who was also the telephone opera-
tor, identified only as Margaret, on each of those days that
he was absent because of illness. Brooks worked on Sep-
tember 10. On the 11th, however, he had to appear at a
Justice of the Peace court regarding an incident that oc-
curred on his property. He testified that this was the only
time during his employment that he was absent from work
3 days in 1 week, that he notified his employer as he always
did, and that he generally notified Armond, the sales man-
ager, and Margaret, but he did not specify whether he noti-
fied one or both on this occasion.
Brooks testified that he arrived at work on September 12
about 15 minutes ahead of time, and worked about 30 min-
utes when he was summoned by intercom to Abrahamson's
office; that Abrahamson ordered him to "take a week off,"
refused to give any reason other than to say Brooks needed
a rest, refused to make the time off less than a week, and
said, when Brooks commented that he had deliveries to
make, that it did not matter, Brooks was to "take a week
off." A few minutes later Brooks was looking at the recent-
ly posted rules when Abrahamson came out of the office.
He testified that he asked Abrahamson why he was not
warned as these rules provided; that he mentioned that he
always called in and explained his absence, and had given
notice as to the court appearance "way ahead of time and
everybody knew about it. I couldn't get out of it"; but that
Abrahamson said the rules did not matter, refused to dis-
cuss the matter further, and again ordered Brooks to "take
a week off now."
Brooks testified that he then went to see Armond, the
sales manager, told Armond the week off was unreason-
able and undeserved as he had been sick, he always called
to explain an absence, he had three deliveries to make, and
he would suffer financially from a week off, and asked
Armond to intercede for him with Abrahamson. He testi-
fied that Armond later reported that he went to see Abra-
hamson and started to give reasons why Brooks should not
be required to take a week off because Brooks was needed,
but that Abrahamson cut him short, said he had made his
decision, Brooks was to go home for a week, and there
would be no further discussion. Brooks testified that he
spent about an hour and a half getting his deliveries set up,
and that, just before he left, he told Abrahamson that a
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week was "a little bit unreasonable " and suggested 2 or 3
days, and Abrahamson agreed Brooks could call in 2 or 3
days. Brooks also testified that he called about Tuesday,
September 15, 1975, and told Abrahamson he would like to
come back to work ; Abrahamson urged him to find a job
elsewhere as Abrahamson did not want him there; he ar-
gued he had deliveries to make, an established clientele,
and was coming back until he was fired; Abrahamson did
not say he was fired but repeated the comments that
Brooks should find another job as he was not wanted
there ; he said he would be in on Friday ; and Abrahamson
ended the conversation by hanging up the telephone.
Brooks returned to work and was still employed by the
Respondent at the time of the hearing.
Another salesman who was frequently absent from work,
but who did not attend the union organizing meeting, was
not suspended for his absences . The suspension of Brooks
without warning was contrary to the provisions of both the
old and the new rules. Brooks asked Abrahamson why he
had not been given a warning as called for by the new
posted rules , but Abrahamson refused to give any explana-
tion. As set forth below , Abrahamson told DeBoer , shortly
after Brooks returned to work , to stay away from Brooks as
Abrahamson felt that Brooks "was instigating this Union."
I am convinced , and find , on the record as a whole, that
the Respondent suspended Brooks without warning, con-
trary to its own rules, in retaliation for Brooks' union activ-
ities and to discourage further activities on behalf of the
Union , in violation of Section 8(a)(3) and ( 1) of the Act.'2
E. Coercive Interrogation and Threats
I have found that the Respondent , at the time it discrimi-
natorily discharged Goffredo , threatened employees with
retaliation for engaging in union activities , in violation of
Section 8(a)(1) of the Act. The consolidated complaint al-
leges various other instances of conduct constituting inter-
rogation and threats violative of Section 8(a)(1) of the Act.
Bastasich testified that on June 25, the day after the
union organizing meeting, when he arrived for work on the
shift starting at 3 p.m., he was paged to come to
Abrahamson' s office; Abrahamson and his wife were in
the office ; Abrahamson, after locking the door , asked if
Bastasich knew anything about a meeting the night before,
when he asked what kind of meeting , Abrahamson did not
specify other than "a meeting"; Mrs. Abrahamson also
queried him as to whether he was approached by anyone
concerning a meeting the night before, which he denied;
Abrahamson asked if he knew of anything going on be-
tween the salesmen and the "house ," and Bastasich an-
swered that he knew only that there was a good deal of
tension between Abrahamson and the salesmen because,
for example , "You pick on me just for petty stuff I do";
and the conversation , which took about 10 minutes, ended
with no response by Abrahamson to this comment.
Bastasich also testified that , on or about July 10, he was
called to the office by Mr. and Mrs. Abrahamson; "he
called me in to one of the offices in there and they closed
12 Board Ford, Inc, 222 NLRB 922 (1976)
the door. He closed the door and he was going through my
orders" for the previous week ; Abrahamson asked if they
were all his deals, and he said they were; Abrahamson
asked about one in a different handwriting , and he said
that was not his, "but it was given to me from Scott Way-
len . . . It was a ten dollar commission which he kept";
Abrahamson said that was the second time he lied, and,
when asked , that the first time was about the meeting; and,
when he said he did that for the security of his job and
family and that he liked working there, Mrs. Abrahamson
said if he "kept on like that" he would have no security
there , and Abrahamson merely said, "No comment." The
General Counsel, in response to an objection by counsel
for the Respondent that there was no allegation in the
complaint with respect to this July 10 incident, stated that
it was not alleged as a violation of the Act but was pre-
sented in respect to violations to which it related. Bastasich
admitted , on cross-examination by the Respondent, that
there was no reference in this conversation to the Union.
DeBoer, a salesman in the Respondent 's employ since
July 1975, testified that Abrahamson called him into an
office on or about October 1, 1975, and " told me that he
wanted to talk to me about a Union, and didn ' t want me to
repeat it to anyone . . . told me it would not be a good
idea to join it, they weren't very strong . . . said that he felt
that Steve Brooks was instigating this Union and to stay
away from him, not to socialize with him." DeBoer admit-
ted, on cross-examination by the Respondent , that Brooks
solicited his signature to a union card, but he denied that
this occurred on the sales floor , and stated that it was at
Brooks' home.
DeBoer testified further that Abrahamson called him
into an office on December 19, 1975, "and said that I
would not have to join any Union or any club or organiza-
tion that was either pertaining to or outside of the dealer-
ship. All I had to do was worry about myself, my pay
check , and taking care of my sales at Abrahamson." On
cross-examination, DeBoer testified that Abrahamson
"told me that it wasn't a good idea to join a Union, and I
didn't have to, you know, join any other organizations that
I didn' t want to. Just as long as I participated and worked
for him . . . I would not have to join the Union."
Brooks testified that on or about December 18, 1975, he
was talking to Cornwall, a salesman no longer employed
by the Respondent , in Cornwall's office about business
matters; he had given Cornwall a union application that
was on Cornwall's desk ; Crowley, the Respondent's new
business manager, came in and talked to Cornwall about
the financing on a car; Crowley , then went to
Abrahamson's office, and in a few minutes Abrahamson
called Brooks and Cornwall into his office; Abrahamson
said to Cornwall, "About this Union, you don' t have to be
a part of this Union. The Union is no good for you. Stay
away from the Union The Union is going to use you. Stay
away from the salesmen . I pay your pay checks, not the
Union"; and Abrahamson then asked if Brooks and Corn-
wall heard him, and they said nothing but nodded and left
the office.
I find , on the entire record , that the Respondent, as al-
leged in the consolidated complaint , by Abrahamson's in-
terrogation of Bastasich and by threats made to Goffredo
ABRAHAMSON CHRYSLER-PLYMOUTH, INC 933
on June 25 , 1975, and by summoning DeBoer on or about
October I and Brooks and Cornwall on or about Decem-
ber 18, 1975, into an office and warning them to refrain
from union activities , coercively interrogated and threat-
ened employees , and thereby interfered with , restrained,
and coerced employees in the exercise of the rights guaran-
teed in Section 7 of the Act, in violation of Section 8(a)(1)
of the Act.13 I find further that there is no allegation in the
complaint as to the conversation with DeBoer on Decem-
ber 19 , 1975. I also find that the evidence does not sustain
the allegation that Crowley on December 18 engaged in
surveillance of union activities , and I shall therefore rec-
ommend dismissal of this allegation of the complaint.
F. The Status of Armond and Crowley
As noted above, the Respondent denied that Crowley
was sales manager as alleged in the consolidated com-
plaint. There is no allegation as to Armond's status. 14 The
testimony shows that Armond is the Respondent 's sales
manager , has authority to hire and discharge , conducts the
sales meetings , assigns demonstrator cars to the salesmen,
makes the appraisals , initials work orders for repairs, and
reviews deals which require management approval. A deal
Armond approves is completed while one he rejects must
be renegotiated . In addition, Andrews testified that he has
gone with Armond to auctions where Armond bought cars
and paid for them by filling in the amounts on signed com-
pany checks ; that Armond sells cars to wholesalers, and
that Armond may talk to a customer on the floor until a
salesman is available to whom Armond then refers the cus-
tomer, but does not sell any cars on the floor and is not
listed with the salesmen on the sales board.
Crowley was employed by the Respondent on or about
December 1, 1975. Armond called a sales meeting about
that time and introduced Crowley to the salesmen as the
new business manager . Thereafter Crowley exercised many
of the same functions as Armond except buying used cars
at auctions or selling used cars to wholesalers . In Armond's
absence, Crowley made appraisals, approved repairs or in-
stallation of parts, and gave final approval to the terms of
a sale,15 actions which required management approval.
I find, on the evidence in its entirety, that Armond at all
times relevant herein , and Crowley since on or about De-
cember 1 , 1975, have been supervisors within the meaning
of the Act.16
13 N L R B v Exchange Parts Company, 375 U S 405 (1964), Albert L
Oldfield, d/b/a Oldfield Tire Sales, 221 NLRB 1275 (1976), R & S Steel
Corp, 222 NLRB 69 (1976), Cori Corporation, a wholly owned subsidiary of
O'Conner Industries, 222 NLRB 243 (1976), Board Ford, Inc, supra
14 Brooks , as a union poll watcher at the election on August 12, 1975,
challenged Armond's ballot on the ground that Armond was a manager and
only the salesmen were eligible to vote Armond was subpenaed by the
Union but did not appear at the hearing Crowley was not yet employed by
the Respondent at the time of the election
15 The General Counsel and the Union placed in evidence Retail Buyer's
Orders for cars sold by different salesmen The place on the form designated
"Must be accepted by an authorized representative of the dealer " is initialed
by Armond or, if he is unavailable, by Crowley
16 Board Ford, Inc, supra
G. New Work Rules and Practices
1. New rules
As referred to in section D, above, the Respondent,
about 3 weeks after the election on August 12, 1975, posted
on the bulletin board a notice, addressed TO ALL SALES PER-
SONNEL, listing 14 types of improper conduct and the ac-
tion , including warning, suspension , or discharge, to be
taken the first , second, third , or fourth time such conduct
occurred.
2. New practice as to demonstrators
Brooks and Bastasich testified that it had been the prac-
tice for years for salesmen to be assigned , as demonstrators
and for their personal use , very expensive new Plymouth
luxury cars with a great deal of optional equipment; each
salesman ordered his car and equipment , and when a de-
monstrator was sold , the salesman reordered the same type
of car and it was supplied by Armond. In late August 1975,
Brooks and Bastasich sold their demonstrators about the
same time. Each of them testified that , when they spoke to
Armond about replacements, he asked them to hold off as
he was going to try to get particular Chrysler models as
demonstrators , but told them later that Abrahamson was
delaying a decision on this ; and that finally, Brooks and
Bastasich , who needed cars at the time , and all the other
salesmen as they needed demonstrators thereafter , were as-
signed less expensive models , some of which had been driv-
en many miles, had been in use as rental or "loaner" cars,
and were in bad or even dangerous condition . Brooks also
testified that thereafter all the salesmen "had rental cars
assigned them, these rental cars, and that is what they had
to drive. They couldn't take any new car out of stock. That
is the rules." Andrews testified that, shortly after the elec-
tion, he was told to remove his personal belongings from
his demonstrator, a luxury vehicle with `just about every
option, and have it cleaned up for the showroom; that Ar-
mond gave him in its place a driver education car with
about 3,000 miles on it, with body damage, and with direc-
tional signals that were not functioning ; and that only Ar-
mond was at this time driving a demonstrator that was a
new luxury car.
3. Other new practices
The salesmen for years had sold financing and insurance
to their customers whenever possible, and were paid com-
missions on such sales. The testimony and a number of
Salesman 's Commission and Salary Reports placed in evi-
dence by the General Counsel indicate that the commis-
sions on such sales represented a substantial part of the
salesmen's earnings. As shown by the testimony of Brooks,
Bastasich, Andrews, and DeBoer, Armond announced at a
sales meeting , shortly after Crowley became business man-
ager, that Crowley was going to handle all financing and
insurance sales , and that the salesmen were to turn their
customers over to Crowley for this purpose. Shortly after
that, Armond announced at another sales meeting that the
salesmen would no longer be paid commissions on sales of
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
financing and insurance as they would not be handling the
procedures involved. When Brooks, who had earned such
commissions during the more than 5 years he was em-
ployed by the Respondent, protested and asked the reason
for the change, Armond said he did not approve of it and
had told Abrahamson the salesmen would not like it, but
Abrahamson merely replied that "Those are the rules and
that is the way it's going to be."
The salesmen further testified that in early December
Armond called a sales meeting at which Crowley was also
present; that Armond announced a new policy requiring
that, as to every individual who walked into the showroom
for any purpose, not only those discussing a purchase as
was previously the practice, a salesman had to get the
name, address, and telephone number, and turn the person
over to management, specifically Armond or Crowley; that
any salesmen who failed to do so "were to follow that per-
son out the door," meaning they would be discharged; and
that thereafter the salesmen followed these procedures and,
if an individual came in just to pick up a brochure, turned
that individual over to Armond or Crowley, who handed
out the brochure.
Andrews and Bastasich testified that Armond also an-
nounced about this time that a desk would be placed at a
certain location in the showroom, that the salesman who
was "up, meaning his turn to wait on a customer," would
sit at that desk, and that the name of every customer the
salesman talked to would be entered on a pressboard on
the desk, on the followup sheet in the salesman 's office,
and on a slip of paper placed on a metal pin in Armond's
office; that, about a week or two later, Armond and Crow-
ley notified the salesmen that they had to make duplicates
of the followup sheets kept in their offices, and that Ar-
mond also stated that, if any salesmen failed to put these
sheets in a special bin in Abrahamson's office, "we would
no longer have to come to work"; and that these were new
procedures, there was previously no up-desk in the show-
room, the followup sheet was previously kept only in the
salesman 's office and only for customers to whom a price
had been quoted, and the turnover policy had been appli-
cable only to such customers.
On the other hand, Andrews testified, on examination by
Griffith, that there was a current sales contest having three
phases, (1) new cars, (2) used cars, and (3) financing, acci-
dent, health, and life insurance, with cash prizes for the
salesman attaining the top goal based on a quota. And
Bastasich testified that he was one of the Respondent's top
salesmen , that his sales record has gradually improved, and
that he won a trip on the basis of his sales. He also testified
that there is considerable turnover in the sales staff because
of the number of salesmen who quit or are discharged.
4. Concluding findings
The record shows that the new rules and policies were
applicable to all the salesmen, including those who were
not sympathetic to the Union, and they also were given
used cars as demonstrators when those who joined the
Union received such cars in place of the luxury models
they had been driving. Some of the changes in question
were made several months after the election. The final elec-
tion results were not known and could not be affected by
these changes in business methods. While the Respondent
posted new work rules, it disregarded the provisions of
those rules when it suspended Brooks. And some salesmen,
after the new rules and policies were adopted, increased
their sales and their earnings. I am not convinced, on the
entire record, that the Respondent adopted these new rules
and procedures in retaliation against or to discourage
union activities rather than for legitimate business reasons.
I shall, therefore, recommend dismissal of the allegations
of the complaint that the Respondent adopted and posted
new work and discipline rules and engaged in economic
reprisals against its employees in order to discourage their
union membership and activities.
IV. THE REPRESENTATION CASE ISSUES
The Regional Director consolidated with the complaint
cases the issues raised by two challenged ballots cast in a
Board election in Case l3-RC-13738, and directed that the
Administrative Law Judge who heard these cases make
recommendations to the Board as to the disposition of said
issues, that thereafter Case 13-RC-13738 be transferred to
and continued before the Board, and that the provisions of
Section 102.69(e) of the Board's Rules and Regulations
shall govern the filing of exceptions.
The Regional Director's Report on Challenges shows the
election results were four ballots cast for and two against
the Union, and two challenged ballots, and refers for reso-
lution in this proceeding the issues raised by the Union's
challenge to the ballot of Armond on the ground that he
was a supervisor, and the Respondent's challenge to the
ballot of Goffredo on the ground that his employment sta-
tus was terminated prior to the election. I have found
above that Armond was a supervisor within the meaning of
the Act. I find, therefore, that Armond was not eligible to
vote in the election. I have also found above that Goffredo
was discriminatorily discharged in violation of the Act. I
find, therefore, that Goffredo was eligible to vote in the
election. I shall recommend, accordingly, that Goffredo's
ballot be opened and counted, and that the Regional Di-
rector thereafter prepare and cause to be served on the
parties a revised tally of ballots including therein the count
of Goffredo's ballot.I7
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce
17 Akron Convalescent Care, Inc d/b/a Fairlawn Chateau and W & D
Enterprises, Inc, 221 NLRB 81 (1976), East Coast Equipment Corporation
and Steco Sales, Inc, 221 NLRB 618 (1975)
ABRAHAMSON CHRYSLER-PLYMOUTH, INC. 935
VI. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, I find that it is necessary that the Re-
spondent be ordered to cease and desist from the unfair
labor practices found and from in any other manner in-
fringing upon its employees' Section 7 rights,18 and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
As I have found that the Respondent discharged Vincent
Goffredo on or about June 25, 1975, and has thereafter
failed and refused to reinstate him, and suspended Steven
Paul Brooks on or about September 12, 1975, for 1 week, in
order to discourage membership in and activities on behalf
of the Union, in violation of Section 8(a)(3) and (1) of the
Act, the Respondent will be ordered to offer Goffredo re-
instatement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and to
make Goffredo and Brooks each whole for any loss of pay
suffered as a result of the discrimination against him, with
backpay computed for Goffredo on a quarterly basis, plus
interest at 6 percent per annum, as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Abrahamson Chrysler-Plymouth,
Inc., is an employer engaged in commerce with the mean-
ing of Section 2(6) and (7) of the Act.
2. American Federation of Professional Salesmen is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By coercively interrogating and threatening employ-
ees about their union activities, and by engaging in other
acts and conduct designed to discourage union member-
ship and activities, the Respondent has interfered with, re-
strained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, and has thereby
engaged in unfair labor practices in violation of Section
8(a)(1) of the Act
4. By discharging Vincent Goffredo on or about June
25, 1975, and suspending Steven Paul Brooks on or about
September 12, 1975, in order to discourage membership in
and activities on behalf of the Union, the Respondent has
discriminated against employees in regard to their hire or
tenure of employment, and has thereby engaged in unfair
labor practices in violation of Section 8(a)(3) and (1) of the
Act.
The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
18 N L R B v Express Publishing Company, 312 U S 416, 437, N L R B v
Entwistle Manufacturing Company, 120 F 2d 523, 532 (C A 4, 1941)
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 19
The Respondent, Abrahamson Chrysler-Plymouth, Inc.,
Highland, Indiana, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Coercively interrogating and threatening employees
about their union activities, and engaging in other acts and
conduct designed to discourage union membership and ac-
tivities.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
(c) Discharging, suspending, or otherwise discriminating
against any employees in regard to their hire or tenure of
employment in order to discourage membership in or ac-
tivities on behalf of American Federation of Professional
Salesmen, or any other labor organization.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Goffredo immediate and full reinstatement to
his former fob or, if that fob no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or other rights and privileges.
(b) Make Goffredo and Brooks whole for any loss of
pay each of them may have suffered as a result of the
Respondent's discrimination against him, in the manner set
forth in the section of this Decision entitled "The Reme-
dy"
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amounts of backpay due under the
terms of this recommended Order.
(d) Post at its place of business in Highland, Indiana,
copies of the attached notice marked "Appendix." 20 Cop-
ies of the notice, on forms provided by the Regional Direc-
tor for Region 13, after being duly signed by the
Respondent's representative, shall be posted by the Re-
spondent immediately upon receipt thereof, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
19 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
20 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of Section 8(a)(1) of
the Act not specifically found herein.
IT IS HEREBY DIRECTED that, as part of his investigation in
Case 13-RC-13738 to ascertain representatives for the pur-
pose of collective bargaining with the Respondent-Em-
ployer, the Regional Director for Region 13 shall, pursuant
to the Board's Rules and Regulations, open and count the
ballot of Vincent Goffredo, and thereafter prepare and
cause to be served on the parties a revised tally of ballots,
including therein the count of Goffredo's ballot.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate or threaten em-
ployees about their union activities or engage in other
acts and conduct designed to discourage membership
in or activities on behalf of American Federation of
Professional Salesmen, or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 of the National Labor
Relations Act.
WE WILL NOT discharge, suspend, or otherwise dis-
criminate against any employees in regard to their hire
or tenure of employment, in order to discourage mem-
bership in or activities on behalf of the above-named
union or any other labor organization.
WE WILL offer Vincent Goffredo immediate and full
reinstatement to his former job or, if that job no lon-
ger exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges.
WE WILL make Vincent Goffredo and Steven Paul
Brooks whole for any loss of pay each of them may
have suffered as a result of the discrimination against
him.
ABRAHAMSON CHRYSLER-PLYMOUTH, INC.