Gilboy Ford Mercury, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1979

246 N.L.R.B. 891 (N.L.R.B. 1979)

GILBOY FORt) MERCURY. IN('.
Gilboy Ford Mercury, Inc. and Retail Clerks and
Store Employees Union, Local 1361, United Food
and Commercial Workers International Union,
AFL-CIO.' Case 4-CA-9750
December 11, 1979
DECISION AND ORDER
BY CItAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On August 16, 1979, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed ex-
ceptions and a supporting brief, and Respondent filed
a brief in support of the Administrative Law Judge's
Decision.
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 his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order of the Administrative
Law Judge and hereby orders that the Respondent,
Gilboy Ford Mercury, Inc., Whitehall, Pennsylvania,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not specifically found herein.
I The name of the Union. formerly Retail Clerks and Store Employees
Union, Local 1361, RCIU, AFI.CIO, is hereby amended to reflect the
merger between Retail Clerks International Union. AFL CIO. and Amal-
agamated Meatcutters and Butcher Workmen of North Amenca, AF CIO.
effective June 7, 1979.
2 The Charging Party has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Drs Wall Products, Inc. 91
NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
SIA EMEN I OFI rFlE CASF
JOEl. A. HARMA/., Administrative Law Judge: This pro-
ceeding was heard by me on June 7. 1979, in Allentown,
Pennsylvania. upon an unfair labor practice charge filed on
November 13. 1978, and a complaint issued on December
28, 1978. which as amended alleged that Respondent in-
dependently violated Section 8(a)( I) of the National Labor
Relations Act, as amended. through surveillance of union
activitN and various coercive statements. including threats
of discharge, threats of more onerous working conditions.
interrogation, creating the impression of surveillance, and
promises of benefit: and violated Section 8(a)(3) and ( I ) of
the Act by first issuing a written warning to. and then dis-
charging. employee John B. Jensen because of his support
of the Union. In its duly filed answer. Respondent denied
that an> unfair labor practices were committed. After close
of the hearing, briefs were filed on behalf of the General
Counsel, the Charging Party. and Respondent.
Upon the entire record in this proceeding. and from m,
direct observation of the demeanor of the witnesses while
testifying. having duly considered the post-hearing briefs. I
make the following:
FINDINGS OF FA('I
I. TE BSINESS O()F RFSP)NI)N I
Respondent is a Pennsylvania corporation engaged in the
sale and lease of new and used cars and trucks from its
facility located in Whitehall. Pennsylvania. During the 12-
month period preceding issuance of the complaint. a repre-
sentative period. Respondent derived gross revenues from
said operations valued in excess of $500,000 and purchased
goods valued in excess of $50,000 directly from outside the
Commonwealth of Pennsylvania.
The complaint alleges, the answer admits. and I find that
Respondent is. and has been at all times material herein. an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. 111i LABOR OR(iANIZAIION INVOI v)
The complaint alleges, the answer admits, and I find that
Retail Clerks and Store Employees Union. l.ocal 1361.
RCIU, AFL-CIO, is. and has been at all times material
herein. an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
III. ItI AI,I.EGED UNFAIR LABOR PRA(I( IS
A. The Issues
Primarily at stake in this proceeding is Respondent's al-
leged discriminatory treatment of union sympathizer John
Jensen, Thus, it is alleged that after a successful organiza-
tion campaign, culminating in the Union's designation b a
majority of Respondent's salesmen in a Board-conducted
election. Jensen was issued a written warning, and then dis-
charged, all because of his support oft' the Union. Remain-
ing issues pertain to alleged independent violations of Sec-
tion 8(a)( 1) most of which relate to preelection misconduct.
not directly interlaced with the action taken against Jensen.
In passing. it is noted that the allegations against Respon-
dent in this proceeding depend vitally upon the credibility
of witnesses offered in support of the complaint. As seen
246 NLRB No. 142
891
D)I('ISIONS O() NATI'I()NA. .ABOR Rll AlIIO)NS B()\RI)
below. certain testinmon adduced by the (ieneral ('tunsel
has been rejected as incredible. though not squarely contra-
dicted by and offlred through employees having active pa-
roll status with Respondent at the time of the hearing.
TIhough such elements are almost always referred to as syn-
onymous with truth. my strong personal disbelief of certain
testimony is af'orded primacy over these standards in as-
sessing the issues in the case. Although Respondent's evi-
dence was not devoid of conflict, and its witnesses not al-
ways credited the lack of credulitx of those oflrred hv the
General (Counsel vas pervasive to the point of significantls
compromising many aspects of the burden to be carried b'
the case-in-chief.
B. BRk Agroulnd
At all times material herein. Anthony lasiello was Re-
spondent's sales manager. with Respondent's president.
John (ilboN. Sr.. and its vice president. John (iilboN. Jr..
also actively engaged in management of the dealership. Par-
enthetically. it is noted that all independent allegations of
Section 8(a)( ) are predicated upon the alleged unlawful
conduct of lasiello.
The organization campaign waged among Respondent's
10 automobile salesmen apparently commenced in late Au-
gust 1978) On August 26. by mailgram. and on August 28
by letter, the Union notified Respondent of its claim to
represent the majority of the salesmen and demanded rec-
ognition and bargaining.
On October 20. an election was conducted. with the
Union achieving a majority by a vote of 6 for and 3 against
representation. and I void ballot. Pursuant thereto. on Oc-
tober 30, the Regional l)irector or Region 4 certified the
Union as exclusive collective-bargaining representative lfor
a unit of "salespersons. including the fleet and leasing man-
ager.
Therealfter, on October 31). a written arning ;as i sued
to Jensen. and on or about November 7. Respondent termi-
nated him.
( . Jller/ r r'c. R lramil. and ( )r( ion
I he threat of more onerous working conditions
It appears that historically salesmen were required to at-
tend regularly held sales meetings. presided over b Sales
Manager lasiello. In the course of these meetings. the sales-
men were prodded to increase their volume. lasiello con-
ceded that he conducted such a meeting shortly after Re-
spondent's receipt of' the nion's letter seeking recognition.
I his document had been shown to lasiello bhy the (Gilboys.
According to lasiello this provoked a conversation with the
attorney who had been retained by Respondent to represent
it in connection ith the organization campaign. lasicllo
infrirnied the attorne? that he was "getting tired of'just sit-
ting around doing nothing. that . . . [hel was going to tr to
get . . . [the salesmen . . going." lasiello acted on this
desire at the next sales meeting. Il siello denied that he
m;dc any specific reftrence to the tInion on that occasion.
I t les otherwise indicaled. all ales refer 1t 197s
but adImits to having addressed the saiJsmen r.vhile holding
a blank piece of paper. lasiLtlo addmitted that he iell upon
this device becaus e he did not possess that actuall mai led
hb the I nion. laisiello opeined the meeting. hrandishing the
paper. staling "I can't hblice Mwhat I read on this letter . .
you lellos don't ant to ork, oIu ant everhthln tor
nothing . lasiello tlhen crumpled up the paper and
threw it in a nearh trash can. Next according to lasiello
he removed his money, held it t to the men, telling therim
that the vwa to increase their earnings was t o "g, (Out l tid
work and make their phone calls. o their bird dog. antd
ever thing else . . . Finall. accordilni to credited testi-
mronv of the (ienerall (ounsel's itnesses. l;siello described
the dealership as having been a tun place to aork, while
indicating that things were going to hange.: In making this
point. lasiello enumerated requirements that would he
placed upon the salesmen. stating that: (I) each onulId be
required to telephone at least IS potential customers d;iil,
and maintain a record of such calls: (2) salesmen aere to
engage in no huddles or group conversatiois on the sales
floor: (3) each salesman was to stuff envelopes to be mailed
to a list of potential customers prepared by the Ford Motor
C(ompans: (4) lateness at the sales meetings would not he
tolerated: and (5) salesmen working the night hift would
have to work an additional one-half hour.l
Based on the foregoing. I find that Respondent violated
Section 8(a)(l) as alleged. Fven assuming that no 11ne re-
quirements were imposed on the salesmen at that session.
the overall conduct and remarks of lasiello at the sales
meeting unmistakabl, implied that the salesmen. b virtue
of their union activit. would he subject to more stringent
application of previouslv established work requirements.
Ihus. having referred to the dealership as a fun place to
work, going on to state that this ould he changed. all in
the cotntest of his admnitted estures with a simulated ver-
sioll of the I nion's demand letter. lasiello's conduct on thirt
occasion ltended to impede ernplo ees in the exercise (of
their Section 7 rights. \s the latter. rather than actual moti-
2 lasiellio. ihen questioned as to u hether he sated iat e le1Ic flCeetlig
Ihal "hi is a Utn place to ork, but it's lnot going I) he t hai li anlltlre
s." Il[lp responlied h, Indiciting that he nl h done ,c , but cOlld
nol recall I find that he id nlmake such a relmark.
While I discredit the suggestlin in the tesimlon iot ;liellti thai the
t monn had nothilng to do : ith his remalrks i deiial plaitl It .dts , ith the
illinner in HIiich hie pened Ihal meeting. I also did nt helihee tcstlnlmn
offered h the (elieral (Counsel that lasiello made spei rcttrein tc t he
Lilllon during the curse thereofi Although this conItict borders on Ihe m-
material. the (General ( ounscl' ecsidence in this regard is le cllt replie , th
,tonltradicin. I hu,. Incumbent salesmen ll .arrx Ratllsd anlld (eorrLc Wiickel
and former salesmlan R;a Schoeneman all testified c t ie eft ll Ihlt laslello
stilled Ihat (;lb, It rd used t, he a; fun place to i.rk. but Ihilt It ill not
ansmirc. and accused the men of bringing on1 the tthil;itccld change h their
union attiviit I'heir testimlti
x
is )lt prct el i ccord ith thai i lleged
di scrlminatee Jensen i this regard Jensen testiiedl thai lIsiello recerred to
the I.nion hile crumnpling the s nbholie demanid letter. sitaing "th.re on't
he ain tlnln ." as he thre,. the piece of piper in tIhe .ite can.
Add liotinal doubt arise Ironm I rmer emplio ce Michel I tu h . h est tied
that lii lello (iii thai catti son did not pecit;all link h;rtc to the Ilon
I inil. anithr incueintheni mplosee. I.ester Mautrer. related hai thie onls
referecilc ia e h b ; lIaelo tI the I t wli uon as llied troinl .m I .lliienlent that
the illen "don't ha e il h.e s iOc ,llltbhod It represnit [thilc ll ti rlllake
muore rlronc. ,iu iln liake morl riti\! It vui vork ;1 ittle larier
N't} these. lii tleclenc Ie t (ctiera ( min, cl', o, erall pescntaio.t i is
elltirel pir:b.hle l II thes itnCc,, c rtccpl p (,hl% I>Luih. c u i eprCs-
tig their Illprecsionl lirll rcillilrks lllade h\ liicli 1 / lit haCI s 111cIICII .,
alther thani l te U CIL h Ui actl. ser u d I rcd lt la selh I diul that il
specitic relerenite toh tie I tnlrl .,. iladt.e n tlit oc;tasiln
892
(ill Io() I ()RI) \11 R('t RY. t(
ks ttin. cotstittlles the otllll-llini si111rdlld l asL.'CsiIc
such an allegalioi. I find that Respondent iolated Section
8(a)(lI of the Act in this respect.
2. Il ntetiro)g;ltion
In support iof this allegation. test lini\ nl as aidduiiced
tro R Scholleneian. a forlmer sa;lcsinlil. to the cliect
tha;t tdurilg the organizatlion canpalign ; l had a convs a-
tion with lasiello in which the I;tter questioned hii its to
whether lihe signed a; union card and asked ho w maiIn\ o thers
had done so. lasiello co1nceded that such a conll ersalol l
with Schoeneillan took place. As it does not appear that
lasiello's nquiries were made for an legitiln;ate purpose,
nor uttered in accordance with cstablished Board standards
prescribed tor noncoercive interrogation, I find that Re-
sponident therchb lolated Sectioll 8a X; I) of the Act.
3. Implied prllise of benefit
I.ester Maurer. an inculhent eployee ill the timle ot Ith
hearing. testified that, during the critical preelectiol period.
he engaged in a discussion w ith lasiello during the course of
which Maurer remlarked that hlie u;as or the nion andl felt
that the salesmen should he entitled to ha e union rereseln-
tation in that it was a good thing tfor the ecilploxees. I1) this.
lasiello t;ted that "it he had known that we were going to
do this, he would have tried to get us better henefits before
the linion vote was taken . . . such tas Blue (ross anld Blue
Shield and better pat." Although lasiello denied this re-
mark, and while I held misgi ings concerning certain its-
pects of Ma;urer's testimon, unlike certain others on w1 hon1
the General (Counsel's cause is predicated, Maurer im-
pressed me as a basically honest witness. ()On balanc I do
not believ e that Maurer would have inulllfacturedt such an
incident and I credit himl. lasiello's statenlent. though per-
haps ruefull expressed. ree;llced disposition oni Respon-
dent's part to combat Ulnioll organization hs upgradiig
benefit levels, thereby creating the impression that. with re-
jection of the nion. employee dissatisfactioin in that area;
would he resolved in their favor. Accordinglt. the remark
constituted an implied promise otf benefits iolative o Sec-
tion 8(a )( i) of the Act.
4. Surveillance
At the outset of the hearing, the complaint was amended
to allege that Respondent violated Section 8(a )( I) through
its survcillance of a union meeting held on September 12.
1978. In his brief, counsel for the General Counsel repre-
sents that said allegation had been withdrawn.
In any event. Michael ouch, a orirmer employee of Re-
spondent testified that he attended a union meeting at the
home of Walt Kelly, on the date in question. Touch testified
that upon leaving the meeting, while getting into his car.
"to the best of my recollection now. I believe I saw two
people from management go by in a car not 15 or 20 feet
from me." Touch went on to testify as follows "''ell.
know it was a car that was traded 4 atnd saou I believe it
was Mr. Gilboy, Sr.. and Tony lasiello to the best of ms
touch did not describe any pecial ch;lrcteriics i>I. and dlitedlt , did
nol see dealer ags on. the car
rec llection io. I dl ont knii .' s lhen i liter qc tioed on
Cr(oSS-CIIiIIIt; II s to whetherl h e c)tld actull\ ,\a wil
crtainti! that the two reprsentiltl\ e s were iil the ;itonio-
bile. I ouch testified: "I ! te best of' n kno ,.ldge., ow.
.t ;.ln't ilport;it ;II te time: I just glatnced outi ani
sas, \'fhich I heliced then and I till helic e nt) to he
thenil now to sai if nit hil, depended on it. anll tiiig that
ha;plled I ,ear ago thaIt 1s not Ihl imlnportant tI me ill the
litti. \ i hin jlust ithlil Pa;ss11g. t;hait's thle V\.a I o111d has1;
to) ex\ i ln it.''
I ouch's testionT\iti was hedged and ullcerlalll. I \&Is con-
sinced it wits little more than a recapitulation otf his o n
suspliciol and Speculation l;t the time. co1nclusltsls \hclil I
ani1 asLked to eldorrSe. urtherllore, serious doubt eits is
to whethcr a conclusi e identification could he mnlid on it
darkened street'i of occupants of ; ) [to ti, \chicle ens I
though iozi/r to one hich the observer assoclated ith
Res poident.Il I opinillin TLIouch's l estilmoll\ did not car-
r! tile substitnti e weight necessary to form the predicate
for a1i ill'fir labor practice filldinig Acctrdirigl 5 . I h1111
tismiss the 8(a)( I) allegalion based thereon.
1). /ic 4l1Iew'd Dl)i.critl tioii tl i (lhter IIfitpetlth'n
1a) 1]) J I/Pt'i4liotS Pjrlti olltl, 1JIotl Jten
Jenserl, prior to his terilintiation. ; as hired hib lasiello on
Januar.\ 2. 1978. Ihis. however. was not his first emplo\-
ment tint with Respondent. Ses eral ears earlier. a prior
period of' employ , melit ended uith enseln's dischalrge for
lateiess. I hat which is in issue here was ostensibl ha,sed o
his rcspotnsibilit for i hlghl\ igh ific;ant misrepresenlallon
in coniection ilh the ale of in autotlhmobilc.
D)uring the recent orgitiatlioll canmipaign Jensen as a;
union supporlter. .]Xthough it does not appear that hlie as
the indiidual. or aimong the group (of employces. initia ll
responsible for contacting the Inion. it does appear that he
signed; c; Crl atterlded inil meetings. and sponsored a
meeting at his home, held on October 24 4 days ,:ir the
election. lasiello acknowledged freebl that he assumed that
Jensen was for the I nion hecause he overheard Jensen
make statement to the effect that he was "glad he's joined
thile nio)1 . .
Prior to his discharge, and during the period conternporl-
neous with the organization drive, Jensen recei ed a num-
ber of' written warnings. Thus. on September 14, he was
tirmaillx cited for his ftailure to; attend a sales meeting." On
October 4. he received a second, citing disobedience in con-
nection with an instruction that he mail out post cards to
potential customers s well ias failure to adhere to an order
by (iilboy. Sr.. concerning the proper parking of a trade-in.
This was accompanied by a -das suspension. and a dis-
charge arning.' On October 23. 1978, Jensen received a
written warning concerning hi, improper remos al and ap-
' I uch testified n response ,,. a leading quetlin h the General (Ciurnsel
Ihal there uere ighs n the rload in quelshn Ithe sue ii Iuch hights i1
relalinl 1 tlhe pilhilin 1l both the ehllC in quesiuon and 1 Louch s.as ine'cr
ascertained as a matter eI record
I See (i.(' tx 12
See (i (' x I
DI)l:(ISIONS OF NATIONAL I.ABOR RELATIONS BOARD
parent personal use of a new car, held in inventory for retail
sale.8 Finally, on October 30, Jensen received a written
warning and the balance of the day off for his lateness on
Saturday, October 28.9
Of these citations, the complaint alleges that only that
issued on October 30 was discriminatory and violative of
Section (a)(3) of the Act.' ° Concededly, this warning was
issued after Jensen held a union meeting at his home. How-
ever, this took place after the election, and in any event
there is no credible proof that Respondent was mindful
thereof.
The warnings were followed by Jensen's discharge on or
about November 7. According to Respondent, this dis-
charge was based solely on events emerging from Jensen's
sale of a Mercury Zephyr to a Mrs. Velda Henry. In this
regard, it appears that Mrs. Henry appeared at the dealer-
ship in August, expressing an interest in the purchase of a
new car. She was waited on by Jensen. At the time, Mrs.
Henry specified to Jensen her desire for a six-cylinder vehi-
cle with air-conditioning. Jensen showed her the particular
Mercury Zephyr involved here. After a demonstration ride,
Mrs. Henry expressed an interest in the car whereupon, at
her request. Jensen wrote on the back of his business card
the vehicle's serial number and the fact that it had six cylin-
ders, and gave the card to Mrs. Henry." Subsequently. in
order to consummate the sale, lasiello's intercession was
necessary because Jensen and Mrs. Henry could not come
to terms on a trade-in allowance. With his aid the deal was
closed, and Ray Schoeneman prepared the contract of sale,
and actually made delivery of the vehicle."
The car which Jensen sold to Mrs. Henry was in fact a
See G.C. Ex. 14.
'See G.C. Ex. 13.
'°The complaint does, however, include two 8(aX)() allegations stemming
from the circumstances under which the October 4 warning was issued to
Jensen. Jensen claims that, as that citation was submitted to him, he was told
by lasiello ". ..you had your meeting last night." Jensen further relates that
when he told lasiello that the warning was "chicken shit," lasiello replied.
"...well, you brought this on yourself, you and your union." lasicllo denied
having had any discussion with Jensen concerning the Union. Although I
have discredited portions of lasiello's testimony, I did not regard Jensen as
an honest witness and am unwilling to accept any of his testimony unless
confirmed by unimpeached evidence from other sources. Accordingly, the
8(aXI) allegations pertaining to "creating the impression of surveillance"
and telling an employee they would "have problems due the Union" are
hereby dismissed.
" In order to establish that Respondent's officials were aware of the union
meeting held at the home of Jensen, testimony was adduced from Ray
Schoeneman to the effect that he observed an automobile in the vicinity of
Jensen's home while en route to that meeting and later saw that vehicle leave
Jensen's parking lot. Schoeneman claims that Hank Weider, Respondent's
assistant sales manager, was the driver of that vehicle. I did not believe
Schoeneman, who impressed me as prone to afford biased and contrived
testimony to further Jensen's interest in this proceeding. In this respect, I
note that, while Schoeneman testified that Jensen, at the sales meetings, was
more outspoken in expressing a prounion sentiment than all other salesmen,
Jensen testified to the effect that Schoeneman also professed a prounion bent
on all of those occasions. Also arousing question as to Schoeneman's objec-
tivity was his testimony that an antiunion employee, Fause Falcone, in terms
of lateness, was "the worst offender." When Schoeneman was questioned as
to the basis of his knowledge for such a conclusion, his effort to convince that
he was in a position to observe lateness of all salesmen was later shown to be
argumentative and untrue. I regarded Schoeneman as a thoroughly unreli-
able witness.
2 See G.C. Ex. 8.
is Ray Schoeneman became involved because Mrs. Henry had been re-
ferred to him and had actually asked for him on her initial visit to the
showroom. Jensen and Schoeneman split the commission on the sale.
four-cylinder vehicle the standard size engine for that par-
ticular model. The model was available with larger 6- or 8-
cylinder engines. Precisely which engine size a particular
Zephyr was equipped with was readily perceptible from a
variety of sources. Since the larger engines were extras, a 6-
or 8-cylinder car would carry a specific charge for that fea-
ture, itemized on the window sticker required by law to
appear on new cars, as well as the Respondent's inventory
control card." Thus, if no extra charge appeared, one, who
chose not to pop the hxood for a visual inspection, would
still learn that a particular Zephyr was a standard four-
cylinder simply by examination of those documents.' 6 Jen-
sen claims that he examined none of' these items to the
point of discovering the size of the engine on the car sold to
Mrs. Henry. Instead, he asserts that he assumed from the
fact that the automobile was "loaded" that it was a six-
cylinder vehicle.'
Several weeks after she took delivery, Mrs. Henry
learned, through her son, that she had been sold a four-
cylinder vehicle, whereupon she telephoned Jensen. '9 advis-
ing him of her discovery. According to the credited testi-
mony of Mrs. Henry, in the course of that conversation,
Jensen asked if she liked the car, to which she replied that
she liked the appearance of the car, but did not like the way
it ran. To this, Jensen replied, "Well, anybody can make a
mistake." 0
Subsequently, when Mrs. Henry returned to the dealer-
ship because her car was in need of service work, she had
her first opportunity to discuss the matter with lasiello. In
explaining her problem, she expressed that she felt "as
though I really have been taken over on this deal . . . I
realize I'm a woman, I don't know anything about a car.
but I just feel as though I've been taken, and I think some-
thing should be done." After lasiello said that he was un-
aware of any solution, Mrs. Henry indicated that she had
spoken to her lawyer, and that lasiello would be hearing
from him.
Mrs. Henry's attorney was her son, Michael. The latter
testified that as his mother had predicted he telephoned
lasiello, repeating the facts about the car and expressing
that his mother had been wronged, and that the matter
4 It is clear that, despite their involvement in the sale, neither Schoeneman
nor lasiello had any knowledge, or basis for assuming. that Mrs. Henry was
interested in an ything other than a four-cylinder vehicle.
1 See Resp. Ex. I.
16 Additionally, the inventory control cards relative to a four-cylinder au-
tomobile uniformly state that the engine is 2.3 liters.
17 Mrs. Henry testified that, in the course of the demonstration drive, when
she mentioned to Henry considerable drag on the engine, he explained that
this would be corrected when tuned for delivery
1 It is noted in this connection that, of the extras carried on the vehicle
sold to Mrs. Henry, only air-conditioning, and possibly automatic transmis-
sion, would influence performance of a four-cylinder vehicle. Contrary to
Jensen, four-cylinder vehicles carrying such equipment are not so rare as to
obviate necessity for checking such an important component of an automo-
bile. See the testimony of John Gilboy, Jr.
'v Jensen admits to the above telephone conversation.
0 I prefer the testimony of Henry to that of Jensen. I discredit his testi-
mony that he admitted to Mrs. HIenry that it was he who had made the
mistake and that he apologized. Among my several reasons for disbelief of
Jensen in this regard is the fact that he testified that Mrs. Henry's call was
the first notice to him that he had made an erroneous assumption concerning
the car he sold. He did not impress me as the type who would yield grace-
fully, at least without checking the records, and freely acknowledge his own
error.
894
GIIBOY FORD MERCURY. IN(C.
would be pursued. In the conversation. Michael Henry in-
fbrmed lasiello that his mother possessed a business card
indicating that the automobile she purchased was equipped
with a six-cylinder engine. When lasiello asked what form
of relief Henry sought, Michael Henry indicated that, at the
very least, they would seek a guarantee that the automobile
would hold together as long as his mother owned it.
Later, Michael Henry and his mother met with lasiello at
the dealership, again explaining their grievance, and show-
ing him the business card Jensen had given Mrs. Henry. At
some point thereafter, lasiello reported to John Gilboy, Jr..
that he had seen the business card confirming that Mrs.
Henry initially sought to purchase a six-cylinder vehicle.
Both Gilboys and lasiello then met with Jensen, afford-
ing the latter the opportunity to give his version of the inci-
dent. According to the credited testimony of the Gilboys
and lasiello. Jensen argued that Mrs. Henry did not have "a
leg to stand on." and that there was nothing in her contract
that specified that she was entitled to anything other than
what she received, arguing that the Company had no right
to give her a new car, for she had nothing with which to
bind the dealership? Jensen was told that the matter would
be subject to further investigation and that Jensen would be
contacted subsequently.2
On November 7. the Henrys returned to the dealership,
whereupon a discussion with lasiello pertaining to some
form of warranty continued. Although the Henrys did not
reject the warranty concept as a possible solution, Mrs.
Henry remained uncertain as to whether she wished to set-
tle on the basis of a "full warranty." In the course of this
meeting, lasiello was given permission to make a photocopy
of the Jensen business card held by the Henrys." At some
point in the discussion, lasiello received a telephone call
and left. When he returned, he informed the Henrys that he
had just talked to the Gilboys and that upon reporting to
them that lasiello. himself, was convinced that Mrs. Henry
had in fact "been taken," John Gilboy. Sr.. agreed that she
should be given a new car.24
21 I did not believe Jensen's testimony that he explained what had hap-
pened, indicating that it was an honest mistake, and that he did not inten-
tionally misrepresent the Company or sell something that Mrs. Henry did
not want.
22 Jensen testified that, upon leaving the office. lasiello followed him, and
that as they walked through the shop, the latter stated "you have to get this
crazy union nonsense out of your mind . . ." going on to ask. "what can the
Union do for you .... " and finally indicating. "I'm gonna talk to you like a
father . where are you going to get a job: you're not going to get a job
anywhere." Jensen further testified that after he responded to lasiello by
stating "Tony, what's the point: the election is over; it's done, there's nothing
I can do . ." lasiello stated, "well you're never gonna get a job anywhere in
this valley," while observing, "... first it was Touch, then Kelly. and now
you." As heretofore indicated Jensen was regarded as an untrustworthy wit-
ness, and here again I did not believe him. I shall dismiss the alleged 8(aX I)
allegation based on this incident because it is unsubstantiated by credible
evidence.
23 The Henrys had refused lasiello's request that they relinquish the card
to him. That card was ultimately surrendered to the Gilboys upon delivery of
a new car in exchange for the Zephyr.
2, Respondent, during its 24-year history, had never before afforded a new
car in exchange for one recently purchased by a dissatisfied customer. John
P. Gilboy. Sr, credibly testified that it was his decision to take this unprece-
dented step. He assertedly did so both because of his interest In preserving
the reputation his dealership held in the community and because the indefi-
nite warranty under discussion was potentially too risky and might prove to
be a burden to Respondent in the future. In order to avoid any adverse
publicity, he elected to give her a new car. I credit his explanation as to why
this step was taken
Subsequently a decision was made to discharge Jensen.
The latter was called to the office. whereupon lasiello, in
the presence of John Gilboy, Jr.. asked Jensen for his owner
card, license plate, and insurance card. lasiello and Gilboy
testified that, with this. Jensen flew into a rage and argued
with lasiello that he could not do this to him. According to
Gilboy. Jensen's anger precluded lasiello from affording an
explanation for the discharge, and hence he told Jensen that
Respondent had been in business for 25 sears and could not
tolerate that kind of representation to a customer and that
the dealership could not afford bad will with the public.'
At this point Jensen indicated that "this is a joke ... ."
Gilboy countered by indicating that Jensen was a joke.?2
With respect to the issues bearing on the discharge. it is
noted that Respondent's evidence freely admits that Jensen
was one of its best salesmen in terms of his ability to close
deals. However, on the facts possessed by Respondent at
the time of the discharge. and reconstructed on this record.
it is difficult to dismiss lightly the gross misrepresentation of
product made by Jensen as having stemmed from innocent
mistake. At the time, Jensen held nine years' experience in
the automobile industry. The 1978 Zephyr was a stock line
during the entire tenure of his recent employment. It is not
farfetched to assume that he was closely acquainted with
Respondent's inventory and fully mindful of the pitfalls of
vending automobiles with optional engine sizes. I cannot
believe that he effected the sale to Mrs. Henry without ei-
ther popping the hood, observing the 2.3 liter marking on
the inventory card, or seeing a sticker tag which had no
optional charge for a six-cylinder engine. His failure to re-
port to superiors that a mistake had been made and his
subsequent unwillingness to acknowledge his own responsi-
bility for it were perfectly consistent with his involvement in
a purposefully contrived sharp practice. I am convinced.
apparently as Respondent's officials were. that Jensen sold
the car knowing of its undersized engine.
The assertion that the discharge of Jensen rested on pre-
textual grounds is wholly unconsincing. Union animus did
exist, and he was a known union adherent." Nonetheless.
the presence of these elements does not sanction manipula-
tion of the inference drawing process to a degree which
ignores practical reality. Here, the proven ground for the
discharge was so indicative of egregious employee miscon-
duct as to dispel any notion that proscribed considerations
prompted the Employer's action. I so find, and shall dismiss
the 8(a)(3) and (I) allegations pertaining thereto.
The challenge to Respondent's motivation fotr issuing the
October 30 warning notice to Jensen is also unsubstantiat-
ed. The complaint does not contest the earlier citations af-
27 The testimony of Gilboy, Jr, and lasiello, though substantially in ac-
cord, is not devoid of discrepancy. I am convinced. however. that the inci-
dent was marked by acrimony to a degree excusing lack of precise recollec-
tion as to all details I believed the essentials of their respective accounts, as
set forth above.
26 It is not entirely clear that the discharge actually txook place on Novem-
ber 7 Gilboy. Sr.. testified that after the decision was made he cleared it with
his attorney and gave the go-ahead about 24 hours later. The issue is not
matenal and need not he resolved.
27 Although the discharge ccurred some 2 weeks after a union meeting
was conducted at Jensen's home, suspicion generated by the timing of the
discharge is mitigated somewhat, albeit no,t entirely) hb the fact that the
election had taken place pnor to that meeting and no ohbjections were filed to
the election
895
I)6l('ISIO)NS ()1: NAI IONAI. ABOR RfI.AIIONS BOARI)
forded Jensen, one of which included a discharge warning.
That which is in dispute here was issued for the stated rea-
son that Jensen was 15 minutes late on October 28. Jensen
did not deny that charge. As heretofore indicated. Respon-
dent had once before discharged Jensen because of' his late-
ness. Furthermore. credible testimony of' lasiello estab-
lished that during the period in question .lensen had been
late frequently and had been orally warned ton that count
prior to issuance of' the formal warning. Neither Respon-
dent's union animus nor Jensen's status as a known union
sympathizer insulated him from what I find to have been a
legitimate eflirt on the part of Respondent to correct a
persistent problem of tardiness.28 I find that Respondent did
not violate Section 8(a)(3) and (I) in this respect and shall
dismiss that allegation of the complaint.
()N(I USIONS ()I L.A,
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2). (6) and (7) of' the Act.
2. The Union is a labor organiz7ation within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)( 1 ) of the Act hby co-
ercive interrogation of an employee concerning his union
sentiment and that of other employees, by a threat that
conditions of work would be more stringently enforced be-
cause employees had engaged in union activity, and b all
implied promise that employees would receive additional
benefits upon their rejection of the Union.
4. Respondent did not violate Section 8(a)( 3 ) and (I) of
the Act by issuing a written warning to Jensen on October
30, 1978. and thereafter. by discharging hint on or about
November 7. 1978.
5. The unfiair labor practices found in paragraph 3 above
are unfair labor practices having an effect upon conlmerce
within the meaning of' Section 2(6) and (7) of' the Act.
'1i1[ Ri:Ntli)N
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that it cease
and desist therefrom, and take certain affirmative action
deemed necessary to eff'ectuate the purposes of the Act.
Upon the foregoing finds of foct and conclusions of' law,.
arid pursuant to Section 10(c) of the Act. I thereby issue the
following recommended:
28 It was a stipulated iact that only sne oilher enmplhee. tFaie allione.
was the recipient I a written warning in 1978 the record. hIoiwever. con-
vlncingly attests to a priopensity on the part ofi Jensen to resist instruction
and hence t expose himself to frequent discipline. As for I alc. ne. an eftlrt
was made by counsel lr the General Counsel to portray hitm as a even
worse oIlender, whose derelictlions were condllrned bh Responldent because of
lalcitne's antrunmon bent. In this regard, testimronrl was idduced fromu Mal-
rer and Schoeneman to the general effecl that talcine was fIrequentls late,
'iolated 1orders. and engaged in negligent acts, all without warning. heir
tesimtony in this regard impressed me as a;rgumentative a rid ioftell resting on
lfacts beyond their immediate knowledge. It was unworthy oIf credence. In
addition. even i believed. the Iltport ot their testlinony to an claliml of
disparale treatment is diminished by the stipulation that talcone receicsed i
least one written warning which, as in the case il Jensen. might well have
been lor lateness
ORI)IR 2"
Ihe Respondent, (iilhoy lord Mercutr\. Inc., Whitehlall,
Pennsylvania. its officers agents. successors. aind ssigns.
shall:
I. ('ease and desist from:
(a) ('oercively interrogating emploees concerning their
own or the union activity of 'other employees.
(h) romising benefits to employees if' they rject union
representation. .
() Threatening that working conditions would be en-
forced more stringently because employees engaged in
union actlvily.
(d) In any like or related manner interfering with, re-
str;aining. or coercing employees in the exercise of the rights
guaranteed them by Section 7 of' the Act.
2. ake the following affirmative action which is deemed
necessar to eflectuate the policies of' the Act:
(a) Post at its place of business in Whitchall. Pennsylva-
nia, copies of' the notice attached hereto and market "Ap-
pendix. "' ('Copies of said notice, on forms provided b the
Regional )ireclor for Region 4. after being duly signed b\
a representative of' Respondent, shall he posted by it inmm-
diately upon receipt thereof: and be maintained by it for a
period of' 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken b Re-
spondent to insure that said notices are not altered. defaced,
or covered by anyi other material.
(b) Notifv the Regional Director for Region 4, in xNrit-
ing. within 21) daNs from the date of' this Order, what steps
Respondent has taken to compli herewith.
2 I the eent no exccptr l s l re iled as provided h Sec It)2 46 ot the
Rules and Regiulations of the National .lbor Relations Board. the findings.
conclusions. and rccoinmlended Order herein shall, as provided il Sec. 102.48
ofl the Rules ard Regulairons. e iadpted bh the Boalld ald beconle Its
findings, conclusions, anld Order, itni all objections therelo shall he deemed
wuaied tor all purposes
"I In the event that this Order is engaged b a Jdgment it a I lireild Stales
('ourt ort Appeal, the w.iords 1i the nolice readinrg '"Psted b Order It the
National .abor Relations Board" shall read "PosMed Pursuanl to a Judgment
of the L'nlted States ('ourl ott Appeals trntorcing n Order 1i the National
ahbor Relations toard.-
APPENDIX
N(ll( -TO F(T i o t) yiS
Pi)SIL I) Y ORI)I R )F 1tilL
NAII)NAL I.ABOR RII.AII()ONS BOARI)
An Agency of the Ulnited Slates (iovernment
Alter a hearing before an Administratlive 1aw Judge, at
which all sides had the opportunity to present evidence and
argumlents, it was determined that we violated the National
l.abor Relations Act. We have therefore ben ordered to
post this notice and to do what it sass.
The National l.abor Relations Act. as aiended. gives
sou. as emplovees. certain rights, including the right:
To engage in self organization
To form. join, or help a union
'to hargain collectivel through a representative
of our own choosing
896
S97
Ilo lac togelheir lr collcctiic hal-allllllg or othcr
IniIltl itl id ol prolcllon
Io relfriln tronm n\ or ll of Icsc IIlng'
\ccordlingl , \c g' L '\e tN L lhec l L lltincc,.
\V'I I \VI I cocrCI\cl] Iifcrogtl ! til C')lirC'1111r
ollr tlIli/11 Il C1liI! i(r Ilil oIl' \ 1 1 _11 '1 ¢1 lll 'e!tWcil
uLpn W lu l o()r pecti hC· union IitiI,\ l t llle llidic.
11ip1l N olr rc)cctclol ll' eluln IoCII Cplllctll IIiOI].
\ \\ II ( thileaten t1o enIforce coniditions oF tork
llOre i r;ll'hllJ hecaie ot hci Ill niled in unio n ac-
Ii\ IN .
I\\ % I \il in aI11 like or rlated ;inner Intertere
1th. ictil]. oi coereCe %ll n in] the c\¢cic oft 'rigllht
i-ii;l(lccd hn the N.ltli l I ibor Relation, Aclt.
(11 i(), i ()RI) \1i R I R . {\ .
(111 BON I ORD \11 R(J RY, IM