Diamond Automotive Distributors, Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1974

214 N.L.R.B. 103 (N.L.R.B. 1974)

DIAMOND AUTOMOTIVE DISTRIBUTORS, INC. 103
Diamond Automotive Distributors, Inc. and Newton
Carburetor and Ignition , Inc. and International
Union of United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW).'
Cases I-CA-9482 and I-CA-9627
October 17, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On June 21, 1974, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the Re-
spondents filed exceptions and supporting briefs.
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 only to
the extent consistent herewith and to adopt his rec-
ommended Order, as modified.
The Administrative Law Judge found that the dis-
charge of Donald Desmarais on February 22, 1974,'
was not discriminatorily motivated and therefore was
not violative of Section 8(a)(3) and (1) of the Act. We
disagree.4
As found by the Administrative Law Judge, in
September, Respondents hired Donald Desmarais to
be store manager at Respondents' Whitman store.
However, the Whitman store was closed for econom-
ic reasons around November 12 to November 19,
and Desmarais was transferred to run Respondents'
Chestnut Street store around November 23.
On December 1, a meeting was held by Joel Dia-
mond in which a new company policy was promul-
gated. Diamond said the employees would have to
work longer hours and harder. No mention was
made of additional remuneration. The employees
t Hereinafter called UAW.
2
The Respondents have 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 credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that -the resolutions are incorrect. Standard Dry Wall Products, Inc... 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
3 All dates are in 1973 unless otherwise stated.
4 Member Kennedy agrees with the conclusion of the Administrative Law
Judge that the evidence does not establish that Respondents discharged
Desmarais on February 22, 1974, for discriminatory reasons within the
meaning of the Act. Accordingly, Member Kennedy would sustain the Ad-
ministrative Law Judge 's dismissal of the 8(a)( I) and (3 ) allegations of the
complaint regarding the discharge of Desmarais.
discussed this and decided to get some information
about a union. Desmarais made a telephone call to
the National Labor Relations Board. Desmarais and
George Lee, found by the Administrative Law Judge
to have been discriminatorily discharged, a finding
we would not disturb, later made a telephone call to
Gerald Harris of the UAW. Four employees, includ-
ing Desmarais, attended a meeting on December 3 at
the UAW hall, signed authorization cards, and took
literature and authorization cards with them to be
signed by other employees. On December 4, these
employees, including Desmarais, distributed the
union literature around the building at Respondents'
Chestnut Street store and in Joel Diamond's office.
On December 6, Harris, the UAW representative,
sent a letter to Joel Diamond, president and treasurer
of Respondent Diamond Automotive Distributors,
Inc., requesting recognition. The letter was signed for
by employee Charles Earnest and was received by
Joel Diamond. The letter was in an envelope bearing
the Union's return address. Diamond looked at the
envelope and remarked in effect that he wanted to
know if it were a bomb or not. He then opened the
letter and went into his office.
On December 7, Lee was fired, as found by the
Administrative Law Judge, for his union activity. On
December 8, Joel Diamond called employees Des-
marais and Earnest into his office and engaged in
illegal interrogation of Desmarais concerning his and
others' union activities. On December 11, Milton Di-
amond, president and treasurer of Respondent New-
ton Carburetor and Ignition, Inc., engaged in several
conversations with employees in which he unlawfully
interrogated employees about their union activities
and created the impression that the employees' union
activities were under surveillance.
On January 2, 1974,5 Desmarais and Joel Dia-
mond had a discussion during which Diamond told
Desmarais that he fired Lee because of the Union.
Thereafter, on January 15, Joel Diamond told Des-
marais that "if the Union got in, that he'd [Diamond]
have to take George [Lee] back and I'd [Desmarais]
end up without a job." The Administrative Law
Judge found and we agree that this was an illegal
threat to Desmarais' job security if he supported the
Union taken in context with the fact that prior to the
union activity of the employees Respondents had in-
tended to operate with a nucleus of employees in-
cluding both Lee and Desmarais.
During the conversation between Desmarais and
Diamond on January 15, Desmarais told Diamond
that Desmarais would have to protect himself and
look for another job. Thereupon, Diamond told Des-
marais that he would give him a good reference and
5 All dates hereafter are in 1974.
214 NLRB No. 17
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Desmarais told Diamond that he would give him 2
weeks' notice before he left.
On February 11, Desmarais told Joel Diamond
that he had been called by a company named Milli-
pore which wanted him to start work in l week. Dia-
mond asked Desmarais whether he was going to give
Diamond notice. Desmarais did not reply but shook
his head, indicating that he would not be able to give
notice. Desmarais told Diamond that Millipore was
supposed to call him that night and let him know
about the job. Diamond asked Desmarais to let him
know what happened.
Millipore did not call Desmarais about the job on
February 11. The next day, February 12, Desmarais
told Diamond that he had not heard from Millipore.
On Saturday, February 16, some of the drivers
asked Desmarais whether Respondents were going to
be open on Monday, February 18, a legal holiday in
Massachusetts. Desmarais told the drivers that as far
as he knew Monday was a holiday, that Joel Dia-
mond had not told him anything, and that they
should ask him. One of the drivers stated that if they
were to work Joel Diamond would have told them.
The drivers then left work. Later that day, Joel Dia-
mond told Desmarais that the Respondents had de-
liveries and work to do on Monday.
Desmarais and all the other employees did not
work on Monday, February 18. On Tuesday, Febru-
ary 19, when Joel Diamond asked Desmarais why he
had not worked the previous day, Desmarais replied
that he had thought that Monday was a holiday.
Desmarais also said he had thought that Diamond
was confused and was thinking about Tuesday in-
stead of Monday when Diamond had told him on
Saturday that there was work to do on Monday.
On February 20, the Respondents brought in a
salesman to learn Desmarais' work. Thereafter, on
February 21, Diamond asked Desmarais if he had
heard from Millipore. Desmarais answered that he
had not heard from Millipore and that he did not
expect to hear from them since, if he were going to,
he would have heard by then. .
On February 22, Desmarais was terminated by
Joel Diamond. This was the same day that a Stipula-
tion for Certification Upon Consent Election was
signed by Respondents and the UAW. The next day,
February 23, Joel Diamond told Desmarais that he
was firing him because "I don't want anybody work-
ing for me looking around for another job." Dia-
mond said that he was getting a lot of phone calls for
references and Desmarais was taking too much time
off from work going on interviews. At the hearing,
Joel Diamond asserted business decline as an addi-
tional reason for discharging Desmarais.
On these facts, the Administrative Law Judge
found that Desmarais was a known union supporter;
the Respondents were opposed to the Union and en-
gaged in extensive conduct violative of Section
8(a)(1) and (3) of the Act; Respondents had indi-
cated to Desmarais that Respondents were selecting
persons for continuance or discharge on the basis of
belief as to their union activity or support or how
they would vote in an upcoming NLRB representa-
tion election; and the timing of Desmarais' discharge
on February 22, the same day that a stipulated elec-
tion agreement was entered into, was suspect. Based
on the above, he stated that, if valid reasons did not
exist for the termination of Desmarais on February
22, the above findings would warrant a conclusion
that the discharge of Desmarais was for discrimina-
tory reasons.
With these facts established and the rejection of
Respondents' economic justification by the Adminis-
trative Law Judge with regard to George Lee's dis-
charge, the Administrative Law Judge nevertheless
found that the real reason for Desmarais' discharge
was not his union activity nor Respondents' union
animus but rather Desmarais' failure to report to
work on February 18, and the continuing efforts by
Desmarais to secure other employment. We disagree.
This first ground, as the record shows, was never
advanced by Respondents as grounds for discharge
either in the reasons given to Desmarais by Joel Dia-
mond or by Diamond on the witness stand. In fact
no one else reported for work that day and yet only
Desmarais was discharged under a suspicious timing
sequence-the day a stipulated election agreement
was executed.
As to the second ground, the only reason that Des-
marais was looking for another job was because he
had been, as found by the Administrative Law
Judge, previously and illegally threatened with dis-
charge by Joel Diamond.
In these circumstances, we will not permit Respon-
dents to take advantage of the fact that Desmarais
rightly took seriously their illegal threat of discharge.
On the basis of the above, we are convinced that the
discharge of Desmarais was an effectuation of Re-
spondents' prior threat of job loss and was directly
related to Desmarais' union activities.
Accordingly, we find that this discharge tended to
and did discourage membership in the UAW in vio-
lation of Section 8(a)(3) and (1) of the Act and shall
order that Respondents offer Donald Desmarais the
position he previously held or, if that job no longer
exists, a substantially equivalent position, without
prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss he may have
suffered as a result of such discrimination. Interest
on any monetary benefit lost as a result of Respon-
DIAMOND AUTOMOTIVE DISTRIBUTORS, INC. 105
dents' discrimination against Desmarais shall be
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716'(1962).
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 modified
herein, and hereby orders that Respondents, Dia-
mond Automotive Distributors, Inc., and Newton
Carburetor and Ignition, Inc., Newton, Massachu-
setts, their officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as modified below:
1. Substitute the following paragraph for para-
graph 2(a):
"(a) Offer George Lee and Donald Desmarais im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges, and make them
whole in the manner set forth in the section of this
Decision entitled `The Remedy."'
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to George Lee and Donald Des-
marais immediate and full reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights
previously enjoyed, and make them whole for
any loss of pay suffered by reason of the dis-
crimination against them.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because of their ac-
tivities on behalf of International Union of
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), or on
behalf of any other labor organization.
WE WILL NOT interrogate our employees con-
cerning their union or protected concerted activ-
ities, sympathies, and beliefs, in a manner con-
stituting interference with, restraint, and coer-
cion within the meaning of Section 8(a)(1) of the
Act.
WE WILL NOT threaten our employees with dis-
charge or other reprisals because of their engag-
ing in union or protected concerted activities.
WE WILL NOT give our employees the impres-
sion that their union or protected concerted ac-
tivities are under surveillance.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of their rights guaranteed in Section 7
of the Act.
All our employees are free to engage in or to re-
frain from engaging in union or concerted activities,
except to the extent that such rights might be affect-
ed by an agreement in accordance with Section
8(a)(3) of the Act.
DIAMOND AUTOMOTIVE
DISTRIBUTORS, INC.
NEWTON CARBURETOR AND
IGNITION, INC.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding under Section 10(b) of the National Labor Rela-
tions Act, as amended, was tried pursuant to due notice on
April 17 and 18, 1974, at Boston, Massachusetts.
The original charge in Case 1-CA-9482 was filed on De-
cember 10, 1973. The amended charge in Case 1-CA-9482
was filed on December 12, 1973. The original charge in
Case 1-CA-9627 was filed on February 25, 1974. The
amended charge in Case 1-CA-9627 was filed on March
21, 1974. The order of consolidation and the consolidated
complaint in this matter was issued on March 26, 1974.
The issues concern (1) whether the Respondent has violat-
ed Section 8(a)(1) of the Act by certain acts of interroga-
tion, threats, and promises of benefits, and (2) whether the
Respondent has violated Section 8(a)(3) and (1) of the Act
by the discharges of George Lee and Donald Desmarais.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the General
Counsel and the Respondent and have been considered.
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and ad-
missions therein.
Diamond Automotive Distributors, Inc. and Newton
Carburetor and Ignition, Inc., are and at all times material
herein have been corporations duly organized under and
existing by virtue of the laws of the Commonwealth of
Massachusetts.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At all times material mentioned, Diamond Automotive
Distributors, Inc. has maintained its principal office and
place of business at 1185 Chestnut Street in the city of
Newton, county of Middlesex, and Commonwealth of
Massachusetts; and at all times herein mentioned, Newton
Carburetor and Ignition, Inc., has maintained its principal
office and place of business at 1191 Chestnut Street in the
city of Newton, county of Middlesex, and Commonwealth
of Massachusetts, and both are now and continuously have
been engaged at said premises in the sale and distribution
of automotive parts and related products.
The two corporations, referred to above, in the course
and conduct of their business cause, and continuously have
caused at all times herein mentioned, large quantities of
automotive parts for resale to be purchased and transport-
ed in interstate commerce from and through various States
of the United States other than the Commonwealth of
Massachusetts, and cause and continuously have caused at
all times herein mentioned, substantial quantities of auto-
motive parts to be sold and transported from said premises
in interstate commerce to States of the United States other
than the Commonwealth of Massachusetts.
Annually, Diamond Automotive Distributors, Inc. re-
ceives automotive parts valued in excess of $50,000 from
points located outside the Commonwealth of Massachu-
setts.
Annually, Newton Carburetor and Ignition, Inc. receives
automotive parts valued in excess of $50,000 from points
located outside the Commonwealth of Massachusetts.
As conceded by the two corporations and based upon
the foregoing, it is concluded and found that the Diamond
Automotive Distributors, Inc. and Newton Carburetor and
Ignition, Inc., are and have been at all times material here-
in, employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
Although initially in issue, the facts and statements by
counsel narrowing the issues, reveal that the Employers
constitute one employer within the meaning of the Act and
that each therefore is jointly and severally responsible for
the conduct engaged in with respect to the litigated unfair
labor practices. It is so found. Thus, the two referred to
corporations will be referred to herein as Respondent.
11. THE LABOR ORGANIZATION INVOLVED
The facts are based upon the pleadings,and lack of deni-
al therein . International Union of United Automobile,
Aerospace and Agricultural Implement Workers of Ameri-
ca (UAW), is now , and has been at all times material here-
in, a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
Supervisory status
The facts are based upon the pleadings and admissions
therein and the foregoing.
At all times material herein, the following named per-
sons occupied positions set opposite their respective names,
and have been and are now agents of the Respondent, act-
ing on Respondent's behalf, and are supervisors within the
meaning of Section 2(1 1) of the Act.
Joel Diamond-President and Treasurer, Diamond
Automotive Distributors, Inc.
Milton Diamond-President and Treasurer, New-
ton Carburetor and Ignition, Inc.
B. The Status of Lee and Desmarais
The General Counsel's complaint, dated March 26,
1974, alleged in part that "Respondents did on or about
December 7, 1973 discharge George Lee and on February
22, 1974 discharged Donald Desmarais, both employees
within the meaning of the Act, then employed at Respon-
dent Diamond's Chestnut Street Store." The Respondent's
answer filed in this proceeding admitted the facts in the
foregoing allegation.
At the trial in this matter the Respondent was permitted,
as a matter of pleading, to amend its answer and to assert
that Desmarais was a supervisor within the meaning of the
Act at times relevant to the issues in the proceeding. Al-
though Respondent litigated Lee's status as being that of a
supervisor prior to November 23, 1973, Lee admittedly was
a nonsupervisory employee at the time of all events in real
issue in this proceeding.
Despite the permission granted to the Respondent to
amend pleadings and to litigate the status of Desmarais,
such pleadings as filed remain as evidence to be considered
in the nature of admissions against interest. Further, it is
clear that Respondent had agreed on February 22, 1974,
with respect to an NLRB representation election, that Des-
marais be included in the bargaining unit. Such evidence,
while not being conclusive, as pointed out in Respondent's
brief, constitutes evidence for consideration and evaluation
in the determination of Desmarais' status.
The issue as to whether Desmarais was a supervisor or
not relates to the duties, authority, and responsibility of the
manager of Respondent's Chestnut Street store. Lee was
such store manager,prior to November 23, 1973, and Des-
marais was such store manager after November 23, 1973,
and until his discharge on February 22, 1974. There has
been no store manager at such location since February 22,
1974.
Some evidence was presented with respect to Lee's and
Desmarais' duties, at other of the Respondent's stores prior
to being manager of the Chestnut Street store. At the Whit-
man store, the facts indicate that Desmarais, as manager,
had with the approval of Joel Diamond fired an employee.
The facts in this case , however, ultimately boil down to
whether Lee and Desmarais had authority to responsibly
direct employees in a nonroutine manner and to exercise
independent judgment at the Chestnut Street store. The
facts as to their authority at other stores are not of persua-
sive probative value in determining such issue.
The facts as to Lee's and Desmarais' duties as store man-
ager at the Chestnut Street store reveal that they essentially
did the same work as the other two or three employees who
DIAMOND AUTOMOTIVE DISTRIBUTORS, INC. 107
worked there. The store manager, as other employees did,
ordered stock, dispatched drivers, worked on inventory,
and worked on the counter. The store manager did not
possess the authority to hire or fire and did not possess
other similar clear authority indicia of supervisory status.
The evidence presented with respect to the authority, or
lack thereof, of the store manager to make effective recom-
mendations with respect to hiring and firing at the Chest-
nut Street store was presented in a muddled and imprecise
manner. The evidence does not reveal that the Respondent
had delegated to the Chestnut Street store manager author-
ity to effectively recommend hiring or firing of employees.
Nor does it reveal that Respondent did or did not make
independent checks upon recommendations.
The issue boils down to a determination of whether the
store manager responsibly directs the work of the other
employees. Joel Diamond credibly testified with respect to
the Chestnut Street store manager's duties as follows:
A. No. There's different phases to this type of busi-
ness. There's countermen who just look up parts.
There are men who have to oversee this. Now, Don
was what we call manager, he would oversee ev-
erything and he would make the decisions of where
everything is delivered, when it has to be delivered,
what orders are to be made up and things like that.
Q. Well, isn't that pretty much determined by the
orders as called in by the salesmen or by customers?
A. No, because orders can be delivered on different
days and it's up to the manager to make sure they're
delivered on the days that he thinks that it should be
done.
Q. Well, that's just a routine act, isn't it?
A. No, it's a long, tiresome job because you have
to-it's a traffic control job, really, because you have
to figure out where you're sending your men and how
long it's going to take them, how many deliveries you
can make at the time. After you've done it for many
years, it becomes natural. It may look easy but it isn't.
Lee, Desmarais, and Earnest testified to the effect that
the store manager and counterman duties were essentially
the same, excepting that the store manager was "in
charge," and that the work was routine in nature.
It is undisputed, unless the store manager is a supervisor,
that the Chestnut Street store is without direct on-the-spot
supervision for around 50 percent of the time. Thus, Presi-
dent Joel Diamond is away from such store 3 to 5 hours
each day. It is noted, however, that since February 22,
1974, the Chestnut Street store has admittedly operated
without a store manager.
Considering all of the foregoing, I am persuaded that the
preponderance of the evidence requires a finding that dur-
ing the period of time December 1, 1973, to February 22,
1974, the Chestnut Street store manager was not a supervi-
sor within the meaning of the Act. The question is close
because of the routine nature of the work and the absence
at times of President Diamond, leaving the store manager
in charge. Respondent's acts in treating the store managers
as rank-and-file employees in meetings on December I, 5,
and other dates, in stipulating such employees to be in the
employee bargaining unit, and in admission in pleadings,
persuade that whether or not at some time in the past such
employees had been supervisors, they were not supervisors
in December 1973 or thereafter. I conclude and find that
Desmarais was not a supervisory employee during times
relevant to this proceeding.'
C. Introduction
Diamond Automotive Distributors, Inc., and Newton
Carburetor and Ignition, Inc., are two separate corpora-
tions engaged in the sale and distribution of automotive
and related parts. Diamond functions as a jobber, buys
parts from warehouses including Newton, and sells and
distributes parts to dealers, gas stations and independent
garages. Newton operates as a warehouse and sells parts to
Diamond and other jobbers. The two corporations, Dia-
mond and Newton, function as an intertwined enterprise
with Joel Diamond being more in charge of Diamond and
Milton Diamond more in charge of Newton. The employee
complements are small in number with Newton having
around five employees, and with Diamond having around
five employees.
This proceeding involves issues as to whether George
Lee and Donald Desmarais were discriminatorily dis-
charged by Respondent in violation of Section 8(a)(3) and
(1) of the Act, and whether certain other conduct of the
Respondent constituted violations of Section 8(a)(1) of the
Act.
George Lee was hired in 1971 as the store manager of
Diamond's Watertown Street store. His work at such store
brought him in close association with Milton Diamond.
Personality problems arose between Milton Diamond and
George Lee. Lee was unhappy with the situation, and Lee
was transferred to Diamond Automotive's Chestnut Street
store in May of 1973..
During the period of. time of Lee's tenure as store man-
ager of the Diamond Chestnut Street store, May 1973 to
November 1973, the United States was confronted with an
"energy crisis." During this time Diamond's sale and distri-
bution of parts to its gasoline station trade customers de-
clined from $4,000 per month to $900 per month.
Respondent's officials attributed part of the reason for
such decline to the attitude displayed by Lee toward cus-
tomers.
In September 1973, Respondent hired Donald Desma-
rais to be store manager at Diamond's Whitman store. The
Whitman store, however, was closed for economic reasons
around November 12 to November 19, 1973, and Desma-
rais was transferred to Diamond's Chestnut Street store
around November 23, 1973. Respondent's official Joel Di-
amond told Desmarais that he (Desmarais) was going to
run the Chestnut Street store.
Around the time that Respondent was planning to close
1 I have considered the fact that the store manager made higher wages
than other employees, and the fact that employees considered that they
should follow the store manager's orders because he was "in charge," in
arriving at the conclusions herein. Such facts balanced against the facts of
greater experience, routineness of work, and the reasonableness of following
of routine orders are not persuasive of a contrary finding.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Whitman store, the Respondent had to fill what was
described as a "Bangladesh" order. This particular order
was a large order and required more effort and skill than
normal in processing. Lee was the person who had the re-
sponsibility for the filling of this order and filled the order
during his normal working hours. Because Lee exerted skill
and ingenuity in filling the "Bangladesh" order, Lee con-
sidered that he should receive a $90 commission in addi-
tion to his regular pay. The Respondent had not in the past
paid such commission, considered that Lee had performed
his work during regular working hours, and considered that
he was not entitled to such commission. Lee and Milton
Diamond had a number of discussions concerning his re-
quest for a commission on the "Bangladesh" order, and
there occurred some ill feelings between the Diamonds
and Lee as a result of such discussions and the Diamonds'
refusal to pay a commission. A subsequent "Bangladesh"
order was placed with the Respondent, and Lee refused to
work on the same even though it was within the scope of
his duties.
There is dispute between the testimony of Lee and the
Diamonds (Joel and Milton) as to the difficulties between
the Diamonds and Lee before he was terminated as store
manager and became a salesman on November 23, 1973. 1
am persuaded that Lee shaded his testimony to present
himself in the best light. I am similarly persuaded that the
Diamonds shaded their testimony to present Lee in the
worst light. The thrust of the facts as to the personality
problem between Milton Diamond and Lee and the "Ban-
gladesh" commission problem, however, is clear.
Considering the fact that Joel Diamond took Lee as
store manager at the Chestnut Street store after Lee had
personality problems with Milton Diamond, that Joel Dia-
mond used Lee as a salesman for a new territory after the
"Bangladesh" commission problem and customer attitude
problem, I am persuaded that the Diamonds did consider
Lee to have the difficulties as described, but considered
that his abilities outweighed such problems.
Around November 23, 1973, Joel Diamond had consid-
ered Lee's capabilities and problems, the closing of the
Whitman store, economic conditions, and the availability
of Desmarais as a store manager for the Chestnut Street
store. Joel Diamond, weighing the pros and cons, decided
to make Desmarais the store manager for the Chestnut
Street store and to terminate Lee's employment. When Joel
Diamond and Lee discussed the termination of Lee as
store manager, Lee introduced the idea of his becoming a
salesman in a territory not previously covered by
Respondent's salesmen. Although the discussion started
out on the basis of Lee's being in effect an independent
contractor, the ultimate arrangements were those of a sala-
ried salesman. I note, despite some clear friction between
Lee and Milton Diamond, that Joel Diamond appears to
have been a practical and essentially fair-minded individu-
al in his dealings with Lee at this point.
Lee worked several days as a salesman. Perhaps because
of the "energy crisis" and the fact that the territory was
virgin territory, the selling trip was largely unsuccessful.
Lee returned to the Chestnut Street store and was assigned
certain responsibilities with respect to clearing out and
moving equipment from the Whitman store to the Chest-
nut Street store on November 29 and 30, 1973. During the
movement of such equipment, an accident occurred where-
in a lathe fell, while being removed from a truck, and sub-
stantial damage occurred to the lathe.
Joel Diamond's actions around November 23, 1973, in-
dicated a decision to terminate Lee at that time. Joel
Diamond's actions on December 1, 1973, set forth later
herein, however, reveal that Joel Diamond changed his
mind and intended to keep Lee as part of a nucleus of a
cut-down crew of employees to carry on the work of the
Chestnut Street store. The facts indicate that around this
time the Respondent had let drivers go or was faced with
having less drivers.
D. Events of December 1-4, 1973
On December 1, 1973, Joel Diamond held a meeting of
employees at the Chestnut Street store. Present at the meet-
ing, which occurred around 12:30 p.m., were Joel Dia-
mond, Milton Diamond, John Diamond, Don Desmarais,
and George Lee. The conversation that occurred con-
cerned the Chestnut Street store in general. Lee suggested
that employee Earnest be brought in. A driver was asked to
handle the counter so that Earnest could participate in the
meeting. What Joel Diamond told the employees is re-
vealed by the following credited excerpts from Lee's testi-
mony.
A. Well, he said that things were rough out there.
There was an energy crisis on, parts and oil were in
short supply. He said because things were so bad out
there that we were going to have to work longer and
harder hours and if we didn't want to, he would get
some people who would.
A. After he said that, I said, "wait a minute, how
are we supposed to do this. We have two less people
than we had a week ago. We have three drivers, two
are out all day and one makes local deliveries." That
means no drivers and they were talking about how the
drivers would unload the trucks and do the heavy
work. I said, "How is that possible to do it. It would
be up to us, the three people remaining, Don Desma-
rais, Chuck and myself to unload the trucks, load the
trucks, wait on retail and garage trade, put stock away
and so on and so forth." And he said, "Well, you're
going to have to work harder and longer to do it." He
said we would also make local deliveries.
Q. Who would make-
A. Don and I would make local deliveries.
Q. Was anything said about more money?
A. No, no compensation was mentioned at all.
A. Joel mentioned that one of my jobs, my primary
job would be checking the orders to be sure they were
accurate. Don's would be putting them up. Chuck's
would be writing them up and so on and so forth using
DIAMOND AUTOMOTIVE DISTRIBUTORS, INC.
the drivers to pull the orders.
Q. Who was going to schedule them.
A. We were going to schedule the trucks to go-
Q. Who is "we"?
A. Don, Chuck and myself.
Q. The three of you?
A. Right. Get together and schedule a route the
salesman should follow, north, south, east and west.
A. Oh, yes. There was also some conversation, after
he said to work harder and longer, he said that Chuck,
Don and myself would be the nucleus of the crew.
Later that day Lee, Earnest, and Desmarais, while at the
Chestnut Street store, discussed what had transpired at the
12:30 p.m. meeting. Again, on Monday, December 3, 1973,
the three employees again discussed what had transpired
on December 1, 1973. The employees decided to see what
could be done about the requirement to work extra hours.
Desmarais made a telephone call to the National Labor
Relations Board (apparently the regional office located in
Boston, Massachusetts). Lee and Desmarais later made a
telephone call to Gerald Harris of the UAW. A meeting
was set for the union hall on the evening of December 3,
1973. Lee, Desmarais, and Earnest invited another employ-
ee, Al Batte, to go to the union hall with them.
The above-mentioned employees went to the UAW
union hall around 6 p.m. on December 3, 1973. At the
union hall the employees received and signed union au-
thorization cards and took union cards and literature with
them for distribution to other employees.
On December 4, 1973, the employees distributed the lit-
erature around the building at the Chestnut Street store
and in Joel Diamond's office.
E. Events of December 5, 1973
On December 5, 1973, around 2:30 p.m. Milton Dia-
mond spoke to employees Lee, Desmarais, and Earnest at
the Chestnut Street store. What occurred is revealed by the
following credited excerpts from Lee's and Desmarais' tes-
timony. 2
Excerpt from Lee's testimony
A. He came in the back room where I was and said,
"So you're going to get a Union in." So, I said, "Wait
a minute." And I went and got Chuck and Don and
brought them back with me. When I brought them
back, he essentially repeated it. He said, "So you're
going to get a Union in. Good, now you'll work." He
said, "I don't have to have a Union shop. I can have a
Union or a non-Union shop. I can have Union or non-
Union men. Me and my sons run the business. I know
2
Milton Diamond testified to the effect that he did not know of union
activity until around December 10, 1973, and to the effect that this event did
not occur . I found Lee , Earnest, and Desmarais to be more frank , forthright,
and truthful appearing witnesses than Milton Diamond and credit their
testimony over Milton Diamond 's as to this event.
109
people in New York and they know about Unions."
He said he'd fight us all the way and he mentioned
something about a pension plan and he said, "I can
fire you right now."
A. I stopped the conversation.
Q. What do you mean you stopped the conversa-
tion?
A. I just ended it. I said "That's enough of this".
This was after some small talk by Don and Chuck.
They mentioned something about the Union. He said,
"What can a Union do for you" and we said, "We
wanted some protection. We needed some protection
against being fired without just cause." And after that
there was some small stuff about scheduling some
trucks and then we broke it up. I said, that's enough of
this and Don and Chuck went back to the counter and
I went back to work.
Excerpt from Desmarais ' testimony
A. Well, you know, he says , oh, you're going
Union. In other words , now you're going to work
harder.
A. And he says that, you know, he didn't want the
Union there, and all that, you know, the exact
words-then he mentioned something about if he had
to he'd bring in the salesmen off the road, and all that,
you know, to work the store, themselves, they could
run it.
The General Counsel alleged in effect that the Respon-
dent by Milton Diamond, on December 5, 1973, engaged
in (1) unlawful interrogation as to employee concerted ac-
tivities, (2) threatened employees with discharge and other
reprisals because of their concerted activities, (3) threat-
ened employees that the business would close because of
their concerted activities, and (4) promised employees ben-
efits to encourage them to cease their concerted activities.
The facts adduced to establish these allegations are re-
ferred to above.
Considering all of the facts, I conclude and find that the
facts do not establish that Respondent has violated Section
8(a)(1) of the Act by unlawful interrogation of employees
as to their concerted or union activities. Rather, the facts
reveal that the employees had engaged in union activities
on December 3 and 4, 1973, that because of the smallness
of the Respondent's operations and employee complement
and timing of events an inference is warranted, and I so
infer, that Respondent knew of such union activities, and'
that the context of Respondent's remarks was not that of
interrogation but rather the presentation of a position.
Considering all of the facts, I am persuaded that Re-
spondent, by Milton Diamond, threatened employees with
discharge and other reprisals because of their engaging in
union activities in violation of Section 8(a)(I) of the Act. I
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
am persuaded that Milton Diamond's remarks to Lee that
he could fire him, and the remarks to the effect that the
business could be run by the family and the salesmen re-
veal such threat of discharge and other reprisals.
Considering the foregoing, I am persuaded that the facts
relied upon by the General Counsel to support the allega-
tion of threat to close the business do not establish such
allegation but instead reveal simply a threat of discharge
and reprisals.
Considering the facts relating to a reference to a pension
or insurance plan, the facts are insufficient to reveal that
such facts constitute a promise of benefit rather than a
statement of what was already planned. Accordingly, such
allegation will be recommended to be dismissed.
F. The Events of December 6, 1973 J
The Union sent a letter, dated December 6, 1973, to Joel
Diamond, president of Diamond Automotive Distributors,
Inc. The letter was received at Respondent's place of busi-
ness by Charles Earnest. Earnest signed a return receipt
card for such letter. The letter was in an envelope having
the Union's return address thereon. The letter was later
handed to Joel Diamond by Earnest. Diamond looked at
the envelope and remarked in effect that he wanted to
know if it were a bomb or not.' Diamond opened the letter
and went into his office.
G. Events of December 7, 1973 s
The discharge of Lee
On December 7, 1973, Joel Diamond called Lee into
Diamond's office. With Joel Diamond at the time were his
brother (John Diamond) and Milton Diamond. What oc-
curred is revealed by the following credited excerpts from
Lee's testimony.
Q. Now, as near as you can recall, what was said on
December the 7th in that office by any of the.partici-
pants, or any of the people who were in there?
A. Joel Diamond started the conversation by quot-
ing.the energy crisis, the shortages around us, the oil,
the plastics. He went on for a few minutes on that, and
then he mentioned that because of this he was going to
have to let me go. -
Q. Because of what?
3 The facts are based upon a composite consideration of the demeanor of
the witnesses and a logical consistency of the facts . I found Earnest to
appear to be a more frank, forthright , and truthful appearing witness than
did Joel Diamond to the issue herein . Upon such composite consideration
of Earnest 's testimony and the logical consistency of facts , I credit Earnest's
testimony over Diamond's where in conflict . Upon a composite of Earnest's
credited testimony and a logical consistency of the facts , the letter exhibit
and signed return receipt card , I find the facts as set out.
I credit Desmarais ' and Lee's corroboration of Earnest 's testimony as to
the remarks made by Diamond. .
3 The facts are based.upon a composite of the credited testimony of Lee
and Desmarais . I discredit Joel Diamond 's testimony where in conflict ther-
eto. Both Lee and Desmarais testified in a more frank , forthright , and truth-
ful manner than did Diamond. For such reason, their testimony is credited
over Diamond 's where in conflict.
A. Because of the energy crisis, and so on and so
forth. And I said, "You're letting the person with the
most experience go?" He said, "Yes." I said to him,
"Well, just last week you called us in and explained
that we were the nucleus of the crew"-meaning
Chuck, Don, and myself. He said, "Well, things have
changed."
Q. That's what he said?
A. Yes, sir.
Q. Was anything else said?
A. Yes. Milton Diamond mentioned that he wanted
to let me go because of the Bangladesh deal, and I said
to him, "Isn't it because of the Union?"
Q. Who did you say that to?
A. Joel Diamond.
Q. And what, if anything, did he say at that point?
A. He shook his head indicating no.
Q. Did he say anytling?
A. Ten minutes, fifteen. minutes. I said, "If you
want me to work the rest of the day?" He said, no,
he'd give me my checks so I could leave then.
The General Counsel contends that the Respondent dis-
criminatorily discharged Lee on December 7, 1973; be-
cause of his union activity. The Respondent contends that
Lee was not discharged because of his union activity, that
Respondent was unaware of union activity at the time of
Lee's discharge, and that Lee was discharged for cause.
The Respondent contends in effect that Lee had been un-
satisfactory as a supervisor, had had problems with Milton
Diamond, had had problems with customers, and was dis-
charged for economic reasons.
Considering all of the facts, I am persuaded and con-
clude and find that the preponderance of the facts reveal
that the Respondent discriminatorily discharged Lee on
December 7, 1973. The dispute between the General
Counsel's contention of facts.and Respondent's contention
of facts has been resolved by the determination'of facts.
Although the facts reveal a basis for dissatisfaction be-
tween the- Diamonds and Lee as regards personality con-
flicts between Lee and Milton Diamond, possible customer
problems, and the broken lathe incident in late November,
it is clear that as of December 1, 1973, the Respondent had
changed its mind as to letting Lee go and had decided to
keep him as part of the nucleus, of a cut-down .crew. The
facts reveal that Lee and others, after Respondent's De-
cember 1, 1973, meeting with employees, decided concert-
edly to engage in union activity and did commence union
organizational activity on December 3 and 4, 1973. The
facts further reveal that Respondent became aware of such
union activity by December 5, 1973, and took steps to
combat the unionization of its employees. Milton
Diamond's actions on December 5, 1973, in talking to the
employees about union efforts, revealed opposition to the
union efforts and a propensity 'to engage in reprisals to-
ward those who supported a union. Milton Diamond's ac-
tions on December 5, 1973, in first approaching Lee before
having the other employees to meet for his remarks, and in
DIAMOND AUTOMOTIVE DISTRIBUTORS, INC.
telling Lee that he could fire him, reveal that Milton Dia-
mond considered Lee as being a leader of the union move-
ment.
Considering the foregoing and the fact of no intervening
reason to reveal a basis for change in attitude after Decem-
ber 1, 1973, excepting Lee's union activity, I conclude and
find" that the facts reveal that Respondent discharged Lee
on December 7, 1973, because of his union activities. Such
conduct is violative of Section 8(a)(3) and (1) of the Act. It
is so concluded and found.
H. Events of December 8, 1973 6
On December 8, 1973, Respondent's supervisor, Joel
Diamond, called employees Donald Desmarais and
Charles Earnest into his office. What occurred is revealed
by the following credited excerpts from Desmarais' testi-
mony.
Excerpt from Desmarais' testimony
Q. All right. Tell us as near as you can recall what
was said by you, by Joel, and tell us when in this
conversation that Chuck Earnest joined the conversa-
tion , and what, if anything, Chuck said?
JUDGE STONE: What is the date of this?
MR. DICIERO: December the 8th, a Saturday.
Q. (By Mr. DiCiero) Go ahead.
A. Well, he called me in his office and he asked-
the first thing he said, he said, "What's this about the
Union?" I told him, "I don't want to talk about it." He
said that there's no way that the Union could get in
because I was still manager-well, before he started
saying that, the thing is, right after he asked me, you
know, "What's this about the Union," and I said, "I
don't want to talk about it," at that point there Chuck
was called in.
Q. Uh-huh. So what else was said, do you recall?
Q. Well, Chuck was in there, the both of us, and he
said there's no way that the Union could get in be-
cause I couldn't vote, Al couldn't vote, something
about Gladys couldn't vote because she was consid-
ered clerical, and that somebody that was working for
him had a criminal record and couldn't vote. He
didn't indicate who it was, you know. Then he said
something about he belonged to a warehouse associa-
tion and they were going to stand behind him one
hundred percent.
Considering the foregoing, I conclude and find that the
Respondent, by Joel Diamond, engaged in unlawful inter-
rogation of Desmarais concerning his and others' union
activities. Such conduct is violative of Section 8(a)(1) of the
Act. It is so concluded and found.
6 The facts are based upon the credited testimony of Donald Desmarais
and Charles Earnest and based upon the fact that they appeared as more
frank , forthright, and truthful witnesses in their testimony as compared to
Joel Diamond 's testimonial demeanor . Diamond's testimony in conflict
with the facts found is discredited.
1. Events of December 11, 1973
III
On December 11, 1973, Milton Diamond engaged in
several conversations with employees. The facts as to such
conversations are revealed by the following credited ex-
cerpts from Batte's testimony.
Q. When did your first conversation with Mr. Dia-
mond take place?
A. It was approximately 8:15 of the same morning.
Q. Where did you talk to him?
A. Well, it was at the front of the store. He instruct-
ed me to get Ted Cunningham from the back of the
store and come up front, he wanted to talk to us.
Q. To the best of your recollection, what did Mr.
Diamond say?
A. Well, the first thing he said to us was, "What is
this with this meeting tonight?" I shrugged my shoul-
ders, and then he continued on and he said, "I under-
stand there's a Union meeting tonight." He continued
about the Union. He said, "What do you people need
a union for?" So I told him, I said, "We need job
security, possibly better wages, protection all the way
around as far as job security was concerned." He said
that he didn't see why a Company of his size should
have to have a union . He also said that he didn't want
to be known as an instigator of unions in his particular
business in that geographical area.
Q. At this early morning meeting, was anything
mentioned about the firing of George Lee?
A. Not at that 8:15 meeting, no. There was a meet-
ing later on in that same morning where Mr. Diamond
and I were conversing about it. He had told me, he
said he couldn't understand why we were all following
George Lee. He said he was just leading us around. He
was only interested in his own job security, he didn't
care about us, there was no sense for us to follow him.
Q. Do you recall talking about the business at this
time?
A. Yes, this later meeting between 10:00 and 11:00.
Mr. Diamond said-he reiterated again what he said
earlier in the morning, saying that the size of his busi-
ness, he didn't need a union, didn't want a union, he
could bring in his outside salesmen if he wanted to. He
said that business was slow, the season was slow,
which it was, and he said there could possibly be lay-
offs, and he said or as a last term, he could close the
store.
Q. Directing your attention to later that day, did
you have any further discussions with Mr. Diamond
that day?
A. Yes, I did. That previous weekend, I had been
mulling over in my mind whether or not the Union
was the right thing for this particular Company. I
wasn't too sure. So I was thinking over the weekend
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that maybe we should get together with the Diamonds,
Milton and Joel and John, or whoever they wanted,
and maybe get the thing thrashed out, you know, get
all the complaints and all the problems ironed out. So
I asked Mr. Diamond if we could possibly have a
meeting that day, or any time at his convenience, and
he said, fine.
* * * *
A. Well, I had called Chuck Earnest and Don Des-
marais and I asked them how they felt, and they
weren't exactly overjoyed about the idea but they said,
well, let's give it a try. So we did. I then said to Milton
Diamond, it's all set, and he said, fine, you know,
make the arrangements with Joel, which I did do that
afternoon, and he said come on up, I think it was
between 4:00 and 4:30 that afternoon.
Q. And who was there?
A. Myself, Chuck Earnest, Don Desmarais, and
Rick, one of the office personnel, and John and Joel
Diamond.
Q. About what time was it held?
A. Approximately 5:00 o'clock.
Considering the foregoing, I conclude and find that the
Respondent, by Milton Diamond, on December 11, 1973,
(I)'interrogated employees about their union activities in a
manner constituting interference, restraint, and coercion in
violation of Section 8(a)(1) of the Act, and (2) created the
impression that the employees' union activities were under
surveillance. Such conduct is violative of Section 8(a)(1) of
the Act.
The General Counsel further contended that Respon-
dent, by Milton Diamond, on December 11, 1973, threat-
ened that the Respondent would close the business to pre-
vent the Union from getting in. Batte's testimony on this
point was presented in such a way that it lacks the precise-
ness necessary to constitute substantial evidence to estab-
lish that the references to closing the business was other
than reference to need to do so because of the slowness of
business. The evidence is of insufficient probative value to
establish a threat to close the business because of employ-
ees' union activities. It is so concluded and found.
J. Events of January 2, 1974 7
On January 2, 1974, Desmarais and Joel Diamond had a
discussion . The discussion ensued because Desmarais had
misunderstood the Respondent 's obligation concerning his
Blue Cross -Blue Shield costs . After discussion concerning
Respondent 's obligations as to Blue Cross-Blue Shield in-
surance, Joel Diamond and Desmarais discussed Desma-
r The facts are based upon the credited testimony of Desmarais. I found
Desmarais to appear to be a more frank, forthright, and truthful appearing
witness than I did Joel Diamond and credit his testimony over Diamond's
where such testimony is in conflict.
rais' ideas of how to increase business and of how to set up
a new inventory system. What else occurred is revealed by
the following credited excerpts from Desmarais' testimony.
A. It was-I described the ideas that I had, and all
that, you know, how to put the things on the cards,
you know, and I said-the point where he said, you
know, why don't you take it home and, you know,
start making up the cards, you know, and then later on
it was brought up-I brought up, I said, you know, I
want to keep my job and, you know, what I'm looking
for is security, you know, I said, I don't want the same
thing happen to me as it did to George. He turned
around and he said, "We let George go because of the
Union."
Q. That's what Joel Diamond said to you?
A. Yes, he did.
Considering the foregoing, I conclude and find that the
Respondent, by Joel Diamond, threatened employees with
discharge if they engaged in union activities. Such conduct
is violative of Section 8(a)(1) of the Act. It is so concluded
and found.
K. Events of January 15, 1974 8
Desmarais credibly testified to the effect that an employ-
ee named Shapiro left the Respondent in mid-January
1974; and that he (Desmarais) had a conversation with Joel
Diamond around such time. What occurred with respect to
such conversation, and the relationship to the 8(a)(1) is-
sues, is revealed by the following excerpts from Desmarais'
testimony.
Q. Okay. As near as you can recall, tell us what was
said, what you said, what Joel said at this time?
A. Well, I walked in the office and he closed the
door and he said, "What I'm going to tell you, I don't
want it going out of the office." Well, before he called
me in the office, he was on the phone for quite a while
with somebody, I don't know who. He said whoever
he was talking to suggested that they get the election
over with as soon as possible, and the way he was
indicating it was going to be in the next week-you
know, the weeks to come. He said something about he
didn't know whether he was going to let me vote be-
cause he didn't know which way I was going to vote.
Then he brought up that if I voted for the Union-
well, just before that, he said something about if the
Union got in, that he'd have to take George back and
I'd end up without a job.
Q. Go ahead.
A. And he said he didn't know whether he'd let me
vote or not because he didn't know which way I was
going to vote. Then he said Al Batte couldn't vote.
8 The facts are based upon the credited testimony of Desmarais. For the
same reasons previously given. I credit Desmarais' testimony over Joel
Diamond's where in conflict.
DIAMOND AUTOMOTIVE DISTRIBUTORS, INC. 113
Q. (By Mr. DiCiero) What, if anything else, was
said?
A. He wanted me to find out which way-well, he
brought up names, like myself, you know, he didn't
know if he was going to let me vote or not, and that if
the Union did get in, that he'd have to take George
back. In other words, he couldn't have George and I
there at the same time.
The General Counsel contends that the Respondents, by
the foregoing conduct of Joel Diamond, engaged in unlaw-
ful interrogation and in threats of discharge violative of
Section 8(a)(l) of the Act.
As to the question of interrogation, I note that Desma-
rais' testimony was presented in an imprecise and rambling
manner. Desmarais seems to have started in a conclu-
sionary way to have testified relative to the matter of inter-
rogation. Desmarais, however, did not finish such testimo-
ny in a meaningful way. Desmarais' testimony is not of
sufficient probative value to establish that unlawful inter-
rogation (in violation of Section 8(a)(1) of the Act) oc-
curred.
Considering the remarks by Diamond concerning the
fact that if the Union came in, Diamond would have to
take George Lee back, that he couldn't keep both Lee and
Desmarais, in context with the fact that prior to the Union
activity of the employees Respondent had intended to op-
erate with a nucleus of employees including both Lee and
Desmarais. I am persuaded that the remarks were intended
to convey to Desmarais a threat to his job security if he
supported the Union. Such conduct is violative of Section
8(a)(1) of the Act. It is so concluded and found.
L. Events January 15, 1974-February 23, 1974
The discharge of Desmarais
During the conversation between Desmarais and Joel
Diamond on January 15, 1974, Desmarais told Diamond
that he (Desmarais) would have to protect himself and look
for another job.9 Diamond told Desmarais that he would
give him (Desmarais) good references and that he (Desma-
rais) would not have any trouble finding another job be-
cause of his background and experience. Desmarais told
Joel Diamond that he would give him at least 2 weeks
notice before he left.
After the above conversation Desmarais commenced ef-
forts to locate other employment. On February 8, 1974,
Desmarais was contacted by an employer named Milli-
pore. Millipore wanted to know whether Desmarais was
working and whether he was still interested in employment
at Millipore. Millipore indicated to Desmarais that a job
was available, that they would want him (if hired) to report
to work on February 19, 1974, and that they would tele-
9 1 credit Desmarais ' testimony over Joel Diamond 's testimony as to the
conversation on January 15, 1974 . Both Diamond and Desmarais appeared
to be witnesses who were not thoroughly reliable on all points . Desmarais as
to his testimony relating to the January 15, 1974, conversation , however,
appeared to be a more reliable witness than Joel Diamond . Considering this
and the logical consistency of all the facts , I find the facts as indicated.
phone him by the night of February 11, 1974, if he were to
be employed. Desmarais told the Millipore official that he
had told his employer (Diamond) that he would give Dia-
mond 2 weeks notice. Desmarais also told the Millipore
official in effect that Diamond needed him for such period
of time because another employee was going on vacation.
On February 11, 1974, Desmarais told Joel Diamond
about his conversation with the Millipore official on Feb-
ruary 8, 1974.10 Desmarais told Joel Diamond in effect that
he had located a new job with Millipore, that Millipore
might want him to report to work by February 19, 1974.
Joel Diamond asked Desmarais as to whether he (Desma-
rais) was going to give Diamond notice. Desmarais did not
reply but shook his head, indicating that he would not be
able to give notice. Desmarais told Joel Diamond that Mil-
lipore was supposed to call him that night and let him
know about the job. Joel Diamond asked Desmarais to let
him know what happened.
Millipore did not call Desmarais about the expected job
on February 11, 1974. On February 12, 1974, Desmarais
told Joel Diamond that he had not heard from Millipore.
On Saturday, February 16, 1974, some of the drivers
asked Desmarais whether the Respondent was going to
work on Monday, February 18, 1974 (a legal holiday in
Massachusetts-for' Washington's birthday). Desmarais
told the drivers that as far as he knew that Monday was a
holiday, that Joel Diamond had not told him anything,
that they should ask Joel Diamond. One of the drivers stat-
ed that if they were to work, Joel Diamond would have
told them. The drivers then left work.
Later, on Saturday, February 16, 1974, Joel Diamond
told Desmarais that the Respondent had deliveries and
work to do on Monday (February 18, 1974).
Desmarais, however, did not work on Monday, Febru-
ary 18, 1974. On Tuesday, February 19, 1974, Joel Dia-
mond asked Desmarais why he had not reported to work
on February 18, 1974. Desmarais told Diamond that he
had thought that Monday was a holiday. Joel Diamond
reminded Desmarais that he had told him on Saturday that
there was work to do on Monday. Desmarais told Dia-
mond that he had thought that Diamond was confused and
thinking about Tuesday instead of Monday.
On February 20, 1974, the Respondent brought in a
salesman, Robert Fone, to learn the aspects of Desmarais'
work. Thereafter, on February 21, 1974, Joel.Diamond
asked Desmarais if he had heard from Millipore (about the
expected job). Desmarais told Joel Diamond that he had
not heard from Millipore, that he didn't expect- to hear
from Millipore since if he were going to, he would have
heard by then.
On February 22, 1974, Joel Diamond and Desmarais
had another conversation. The facts thereto are revealed
by the following credited excerpts from Desmarais' testi-
mony.
A. I went into the office and we closed-he had me
close the door. He brought up the point again, did I
The facts are based upon a composite of the credited aspects of the
testimony of Desmarais and Joel Diamond. The testimony of either Desma-
rais or Joel Diamond not set forth is either discredited as inconsistent with
all of the facts or not set forth because not of value.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hear from Millipore? I said no. He said, why don't you
give him a call and try to find out, you know, whether
you can get the job or not. I told him, I said, I don't
even know who I talked to. I don't even know the
guy's name. I said how am I going to do that? Then he
just sat back and he said, well, I made plans, you
know, I thought you were going to leave. The thing is,
he says, "We're going to have to let you go." I said,
you know-I didn't know what to say at that point.
The thing is, I didn't have no job lined up. I turned
around and I told him, I said, "I've got nothing lined
up. How in the world am I going to feed my family,"
you know, I've got a family to support, you know,
house payment-mortgage, and all that to pay. I told
him, "I wasn't going to leave you up in the air. I was
going to give you at least two weeks notice. You're
leaving me right up in the air," which, you know, I felt
wasn't fair. He said, "Let me think about it. I'll let you
know before you go home.
Later, around 5:15 on February 22, 1974, Desmarais and
Joel Diamond had another conversation as is revealed by
the following credited excerpts from Desmarais' testimony.
A. He said that he thought about it and all that,
and he said that he's going to have to let me go. And
then I asked him, I said, "Am I fired or laid off?" He
said, "Not this again."
Q. Yeah,,what else?
A. And he said-you know, the thing is, I wanted
to find out whether I was fired or laid off. I told him,
I said, if I'm fired, I said, I can't collect unemploy-
ment. And the thing is, I said, if I'm laid off; at least I
can collect unemployment, at least I'll have something
coming in. And also I brought up the point that, you
know, if I go looking for a job, what am I going to tell
them, my-you know, when I go for an interview, I
was fired or laid off. I didn't know. He says-at that
point he turned around and said, "Let me check and
see if you can collect if I say.you're fired," and he said,
"Give me a call Monday afternoon, I'll. let you know."
At that point, it was around 5:30, it was time for me to
go home so I just started walking out. He said, "Have
a good weekend." I said, "How do you expect me to
have a good weekend," and I just kept going.
On February 23,.1974, Desmarais went back to the Re-
spondent and had another conversation with Joel Dia-
mond as is revealed by the following credited excerpts
from Desmarais' testimony.
A. Well, I walked in like a normal day, you know, I
stood in front-of the store. Joel was there. When I
walked in, he walked in his office, but I stayed in front
of the counter, and then he came back out and I
said-I asked him, "Am I all done?" He said, "Yes." I
asked him, I said, "Am I laid off or am I fired?" He
said, "You're fired." I asked him, "For what reason?"
He said, "I don't want anybody working for me look-
ing around for another job."
Q. I see.
A. And he went into details about a certain inter-
view I went to. He knew exactly where I went, who I
saw, you know , he was getting a lot of phone calls for
references , and I was taking too much time off from
work , you know, going on interviews.
Conclusion
Considering all of the foregoing, I am persuaded and
conclude and find that the preponderance of the evidence
does not establish that the Respondent discriminatorily
discharged Desmarais on February 22, 1974, in violation of
Section 8(a)(3) and (1) of the Act. The facts reveal that
Desmarais engaged in the initial union organizational ac-
tivities in December 1973, and that his interest and support
of the Union continued until his discharge. The evidence
does not reveal, however, that Desmarais' activity on be-
half of the Union after December 7, 1973, was great. How-
ever, because of the small employee complement and the
total facts relating to union activity, I am persuaded and
conclude and find that the Respondent had reason to be-
lieve and did believe that Desmarais was a union support-
er. The facts in this case reveal that the Respondent was
opposed to the Union, and engaged in conduct violative of
Section 8(a)(I) and (3) of the Act. If valid reasons did not
exist for the termination of Desmarais on February 22,
1974, the union activity of Desmarais, the Respondent's
knowledge of Desmarais' union activity, Respondent's
conduct violative of Section 8(a)(3) and (I) of the Act, and
Respondent's antiunion animus would warrant findings
that the discharge of Desmarais was for discriminatory rea-
sons. Included in support of such findings would be an
evaluation of the indication to Desmarais that Respondent
was selecting persons for continuance or discharge on the
basis of belief as to their union activity or support of how
they would vote in an oncoming NLRB representation
election. The timing of Desmarais' discharge on February
22, 1974, with a stipulated election agreement entered into
on February'22, 1974, would further support such findings.
The timing of events and the facts.thereto must be con-
sidered, however, in the light of. other facts. In January
1974, Desmarais indicated to the Respondent that he was
going to look for another job. Later, on February 11, 1974,
Desmarais told Respondent in 'effect that there. was a
strong possibility that he had located another job and that
if it went through, the strong possibility existed that he
would have to report to such job by February 19, 1974.
Later, although told to report to work for Respondent on
February 18, 1974, Desmarais did not report to work on
such date. On February 19, 1974, when asked about the
failure to report to work on February 18, 1974, Desmarais
gave a.weak and obviously evasive answer, to wit, that he
thought February 18, 1974, was a "holiday."'.' When re-
minded of the prior instructions to report to work, Desma-
rais gave a weak answer to the effect that he thought Joel
Diamond was "confused" in such instructions.12 On Febru-
" It was a legal holiday in Massachusetts. but Respondent by virtue of
the prior instructions on February 16, 1974, obviously recognized the reply
as merely a pretextuous excuse.
12 From a careful observation of Desmarais while he testified and his
DIAMOND AUTOMOTIVE DISTRIBUTORS, INC.
ary 20, 1974, Respondent took steps to prepare to replace
Desmarais by bringing in Forte, a salesman, to learn the
work. Considering all of this, I am persuaded, and con-
elude and find that Respondent considered that it could
not rely on the continued employment of Desmarais or his
assertions thereto.13 Under such circumstances, I conclude
and find that the preponderance of the facts does not es-
tablish that Respondent discriminatorily discharged Des-
marais on February 22, 1974. Accordingly, it will be rec-
ommended that the allegation that Respondent discrimina-
torily discharged Desmarais in violation of Section 8(a)(3)
and (1) of the Act be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's op-
erations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act.
Having found that the Respondent discriminatorily dis-
charged and has refused and is refusing to reinstate George
Lee, I shall recommend that Respondent offer him imme-
diate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or
other rights and privileges. In addition, I shall recommend
that the Respondent make him whole for any loss he may
have suffered by reason of the discrimination against him
by payment to him of a sum of money equal to that which
he would normally have earned from the date of his dis-
charge, less net earnings during said period. Backpay shall
be computed with interest on a quarterly basis in the man-
ner described by the Board in F. W. Woolworth Company,
90 NLRB 289, 291-295 (1950); Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that the
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
testimony, it is clear that he knew he was supposed to work on February 18,
1974, and that his answers to Joel Diamond were not forthright. I am per-
suaded that Diamond considered the answers in the same light.
13
While Respondent was aware of Desmarais' statements on February 12
and thereafter that he had not heard from Millipore, the facts reveal that
Respondent was aware of continuing efforts by Desmarais to secure other
employment. Under such circumstances, the failure of Desmarais to work
on February 18, 1974, ample cause for concern as to the reliability of Des-
marais as an employee for future work existed.
CONCLUSIONS OF LAW
115
1. Diamond Automotive Distributors, Inc. and Newton
Carburetors and Ignition, Inc., each is an Employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act, and together constitute a single enterprise,
the Respondent herein.
2. International Union of United Automobile, Aero-
space and'Agricultural Implement Workers of America
(UAW), is and has-been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, Respondent engaged in unfair labor practices pro-
scribed by Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of
employment of George Lee, thereby discouraging member-
ship in the Union, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(I) and (3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 14
Respondent, Diamond Automotive Distributors, Inc.
and Newton Carburetor and Ignition, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees because of their activity on behalf of International
Union of United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), or on behalf of
any other labor organization.
(b) Interrogating employees concerning their union or
protected concerted activities, sympathies or beliefs in a
manner constituting interference with, restraint or coercion
within the meaning of Section 8(a)(I) of the Act.
(c) Threatening employees with discharge or other repri-
sals because of their engaging in union or protected con-
certed activities.
(d) Giving employees the impression that their union or
protected concerted activities are under surveillance.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
• 2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to George Lee immediate and full reinstate-
ment to his former job or if such job no longer exists, to a
substantially equivalent position without prejudice to his
14 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.
116 DECISIONS OF NATIONAL
seniority or other rights and privileges , and make him
whole in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and make available to the Board or its
agents for examination and copying all payroll records, So-
cial Security payment records , timecards , personnel re-
cords and reports and all other records necessary or appro-
priate to analyze the amount of backpay due.
(c) Post at its stores in Newton , Massachusetts , copies of
the attached notice marked "Appendix ." 15 Copies of the
15 In the event that the Board 's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading " Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
LABOR RELATIONS BOARD
notice on forms provided by the Regional Director for Re-
gion I , after being duly signed by Respondent 's authorized
representative , shall be posted by it for a period of 60 con-
secutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by the Respondent to
insure that such notices are not altered , defaced , or covered
by any other material.
(d) Notify the Regional Director for Region 1 , in writ-
ing, within 20 days from the date of the receipt of this
Order , what steps the Respondent has taken to comply
herewith.
It is recommended that the allegations of the complaint,
not found to have been established , be dismissed.