Grand-Central Chrysler, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1965

155 N.L.R.B. 185 (N.L.R.B. 1965)

GRAND-CENTRAL CHRYSLER, INC. 185
WE WILL NOT denounce employees as union instigators or adherents or imply
reprisals for such activity , in a manner constituting interference , restraint, and
coercion within the meaning of the Act.
WE WILL NOT lead our employees to believe that we have knowledge of their
union activities , or otherwise create the impression that union activities of our
employees are under surveillance.
WE WILL NOT discriminatorily issue or apply instructions to employees about
talking to union representatives.
WE WILL NOT encourage , assist, or ratify antiunion petitions and
demonstrations.
WE WILL NOT, by threats of reprisals, attempt to induce union representatives
to withdraw unfair labor practice charges filed with the Board.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor orga-
nizations , to join or assist the above-named Union , or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all such activities,
except to the extent that such rights may be affected by the provisos of Section
8(a)(3) of the Act.
NISKAYUNA CONSUMERS COOPERATIVE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office , Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No.
842-3100.
Grand-Central Chrysler, Inc. and Automobile Salesmen and Mis-
cellaneous Workers Union, Local 192. Cause No. 13-CA-6634.
October 12, 196.5
DECISION AND ORDER
On June 16, 1965, Trial Examiner Sidney J. Barban issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the Gen-
eral Counsel. filed exceptions to the Trial Examiner's Decision and a
brief in support thereof, and the Respondent filed exceptions to the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the brief, and the entire rec-
ord in this case, and finds merit in the General Counsel's exceptions.
155 NLRB No. 20.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, the Board adopts the findings, conclusions , and recom-
mendations of the Trial Examiner only to the extent consistent
herewith.
The complaint alleges that the Respondent engaged in conduct vio-
lating Section 8 (a) (1) and (3) of the Act. The Trial Examiner
found essentially that the Respondent engaged in the conduct alleged
to be unlawful but concluded nevertheless that except for an isolated
incident not warranting a remedy, the Respondent had not violated the
Act.' We adopt the Trial Examiner's findings of fact, and, on the
basis of such findings, conclude that the Respondent's conduct was
unlawful as alleged in the complaint.
1. Interrogation: Shortly after employee Gossmeyer signed up
employee Zrelak in the Union on or about August 8, 1964, Supervisor
Miller asked Zrelak if Gossmeyer got him to join the Union, and Sio-
kos, general manager of the Respondent, asked Zrelak if he knew any-
thing about Gossmeyer's union activities. About the middle of August,
Siokos also had a conversation with employee Varventiotis in Siokos'
office during which he asked if Varventiotis knew of anyone who had
been sent to the Respondent's operation by the Union. When asked
the reason for this question, Siokos stated that he thought Gossmeyer
was from the Union. Also about the middle of August, Jack Buttitta,
executive-secretary and operating manager of the Respondent, told
employee Polakoff that he did not care if the Union came in, but that
he did not want "anyone to try to instigate it."' He also asked Polakoff
if he was a union man, if there were any union men at the Respondent's
operation, and if anyone had approached him about the Union.
The Trial Examiner concluded that the above instances of interro-
gation "did not appear to be coercive," and were, therefore, not unlaw-
ful. However , the Respondent's interrogation had no legitimate pur-
pose,2 but rather was intended to determine the union membership and
activities of its automobile sales employees and to uncover the union
leader or organizer at the Respondent's place of business. Accord-
ingly, we find that the above noted instances of interrogation of
employees by the Respondent had a tendency to interfere with, re-
strain, and coerce the employees, and that the Respondent by engaging
in such conduct violated Section 8 (a) (1) of the Act.3
2. The discharge of Gossmeyer: Gossmeyer was hired by the
Respondent on June 17, 1964. He quit a few days later, but, upon
being offered an increase in pay and other benefits, returned to work.
1 The Trial Examiner found that the Respondent , through Supervisor Miller, violated
Section 8 (a) (1) of the Act by telling employee Varventiotis that his compensation would
depend upon his disaffiliation from the Union. We find that Miller 's conduct warrants
an appropriate remedy, particularly in view of our findings below that the Respondent
engaged in various other unlawful activity.
2 Cf. Blue Flesh Express , Inc., 109 NLRB 591; also Henry I. Siegel Co ., Inc., 143 NLRB
386, 387.
aN.L.R.B. v. Midwestern Instruments , Inc., 264 F. 2d 829, 831 (C.A. 10), enfg 119
NLRB 1690; Louisiana Manufacturing Company, 152 NLRB 1301.
GRAND-CENTRAL CHRYSLER, INC. 187
He later joined the Union and, during August, was the most active
employee in soliciting union membership among his fellow employees.
It was at this time that the Respondent, as found above, unlawfully
interrogated employees concerning the union membership and activities
of Gossmeyer and also engaged in other violative of Section 8 (a) (1) of
the Act. Gossmeyer was discharged on August 19. The next day,
Supervisor Miller told Gossmeyer that he was being let go because
"business was slow and we just can't carry too many people." Subse-
quently, in a letter to the Regional Director, the Respondent stated that
Gossmeyer was discharged for "tardiness"; at the hearing, it asserted
that Gossmeyer was generally an unsatisfactory employee. The Trial
Examiner found that Gossmeyer's faults were not unusual among the
Respondent's employees, but nevertheless concluded that his discharge
was not unlawful. In reaching this result, he relied on the lack of evi-
dence of union hostility by the Respondent, the fact that Gossmeyer
was less than a fully satisfactory employee, and the fact that the
Respondent had plausible reason, an unexcused absence, for discharg-
ing Gossmeyer.
We cannot agree that Gossmeyer was discharged for cause. As the
Respondent obviously knew, Gossmeyer was the employee most active
in soliciting for the Union; the Respondent's executive secretary had
stated that he did not want anyone to try to " instigate" the union ; and
the Respondent gave inconsistent reasons for the discharge . Further-
more, none of these shifting reasons withstands scrutiny. Thus,
although the Respondent told Gossmeyer he was being terminated
because business was slow , it was at the same time advertising for and
hiring new salesmen; moreover , the Respondent , as discussed below,
attempted to suppress evidence of the assertion of this reason for the
discharge by directing Supervisor Miller not to reveal to the Board
agent investigating this case what he had told Gossmeyer was the cause
of his being terminated . As for Gossmeyer's tardiness , it was, as the
Trial Examiner found, either excused or condoned . And the Respond-
ent's criticism of Gossmeyer as an unsatisfactory employee loses much
of its cogency in view of the Trial Examiner's finding, supported by
the record , that Gossmeyer's "faults were not unusual among Respond-
ent's employees" who have continued to be employed by the Respond-
ent. It is apparent , in all the circumstances , and we find , that the
Respondent seized upon shifting justifications in order to mask the
fact that Gossmeyer was being discharged for "instigating" and solic-
iting for the Union. Accordingly, we find that the Respondent dis-
charged Gossmeyer for engaging in union and concerted activities
and, thereby , violated Section 8(a) (3) and (1) of the Act.
3. Interference with, the Board's investigation: The charge in this
proceeding was filed on August 20 , 1964. In October 1964, a Board
agent visited the Respondent 's establishment to investigate the charges.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He was furnished a room by the Respondent in which to hold inter-
views. Unknown to the agent, the room contained a hidden micro-
phone which was connected to a receiving apparatus in a nearby room;
anyone with access to this latter room could, by activating the appara-
tus, hear what was being said in the room being used for the inter-
views. As there was no evidence that the Respondent intended to, or
did, eavesdrop on interviews held by the Board agent, or that employ-
ees, as distinguished from supervisors , were aware of the existence of
the microphone, the Trial Examiner found that the presence of the
microphone did not materially affect the Board's investigation, and
that the Respondent did not violate the Act by furnishing this room
to the agent. We do not agree.
It is apparent that the Respondent, by providing the Board agent,
for purposes of his investigation, with a room containing a hidden
microphone , created a situation in which it could improperly interfere
with the Board's investigatory processes by secretly listening to the
interviews conducted by the Board agent. By creating a situation in
which it could maintain employer surveillance of the Board agent's
interviews, the Respondent's conduct tended to interfere with the rights
of its employees to seek in a properly conducted and protected proceed-
ing the realization of their statutory rights.4 Furthermore, Supervisor
Miller, who was aware of the presence of the microphone , was inter-
viewed in the room after being instructed by the Respondent to with-
hold from the Board agent evidence of the reason given to Gossmcyer
for his discharge. Clearly in such a situation the possibility that the
Respondent could, as Miller knew, eavesdrop on this interview tended
to restrain and coerce Miller with respect to the information he gave
the Board agent, and thereby interfered with the freedom of the
employees to vindicate their statutory rights in the manner provided
by the Act.5 In view of the foregoing, we find that the Respondent,
by providing the Board agent with a room containing a hidden micro-
phone, violated Section 8 (a) (1) of the Act. Additionally, we find that
the Respondent, by instructing Miller to withhold evidence from the
Board agent, obstructed the Board in its investigation, and that this
also had the necessary effect of interfering with the freedom of employ-
ees to vindicate their statutory rights in a Board proceeding. Accord-
ingly, we find that this conduct was violative of Section 8 (a) (1) of
the Act.'
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with its operations described in section I of the Trial Exam-
4 See Cannon Electric Company , 151 NLRB 1465.
5 See Jackson Tile Manufacturing Company, 122 NLRB 764, 766, Better Monkey Grip
Company, 115 NLRB 1170, enfd. 243 F . 2d 836 (C.A. 5).
4 Jackson Tile Manufacturing , supra.
GRAND - CENTRAL CHRYSLER, INC. 189
iner's Decision , have a close , intimate , and substantial relation 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.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices prohibited by Section 8(a) (1) and (3) of the Act, we
shall order that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the Act.
Having found that the Respondent on August 19, 1964, unlawfully
discharged Kenneth Gossmeyer, Jr., for engaging in union and con-
certed activities, we shall order that the Respondent offer him immedi-
ate and full reinstatement to his former or a substantially equivalent
position, without prejudice to his seniority or other rights and priv-
ileges , and make him whole for any loss of earnings he may have suf-
fered as a result of the discrimination against him, by payment to him
of a sum of money equal to the amount he would have earned from the
date of his discharge to the date of the offer of reinstatement ,' less his
net earnings during said period, to be computed on a quarterly basis
in the manner established by the Board in F. TV. Woolworth Coin pany,
90 NLRB 289. Interest at the rate of 6 percent per annum shall be
added to such net backpay and shall be computed in the manner set
forth in Isis Plumbing cC Heating Co., 138 NLRB 716. We shall also
order that the Respondent preserve and, upon request, make available
to the Board or its agents, for examination and copying, all payroll
records, social security payment records and reports, timecards, and all
other records necessary to analyze the amount of backpay clue.
As the unfair labor practices committed by the Respondent were of
the character which go to the very heart of the Act, we shall require
the Respondent to cease and desist from infringing in any manner
upon the rights of employees guaranteed by Section 7 of the Act.
CONCLUSIONS on LAW
1. The Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Automobile Salesmen and Miscellaneous Workers Union, Local
192, is a labor organization within the meaning of Section 2(5) of
the Act.
3. By interrogating its employees concerning their union member-
ship and activities, and the union membership and activities of other
employees; advising an employee that his compensation would depend
upon his disaffiliation from the Union ; obstructing the Board 's proc-
esses by instructing a supervisor to give false information to a Board
7 See A.P.W. Products Co., Inc, 137 NLRB 25.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent; and by making available to the Board agent, for the conduct of
interviews , a room which contained a hidden microphone , the Respond-
ent has engaged in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) of the Act.
4. By discharging Kenneth Gossmeyer, Jr., on August 19, 1964,
because of his union and concerted activities, the Respondent has
engaged in unfair labor practices within the meaning of Section S(a)
(3) and (1) of the Act.
5. The aforementioned unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Grand-Central Chrysler, Inc., Chicago, Illinois, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from :
(a) Interrogating its employees concerning their unioninembership
and activities, and the union membership and activities of other
employees; advising employees that their compensation would depend
upon their disaffiliation from a union; and obstructing the Board's
processes by instructing a supervisor to give false information to a
Board agent, and by making available to the Board agent, for the con-
duct of interviews, a room which contained a hidden microphone.
(b) Discouraging membership in or activities on behalf of Auto-
mobile Salesmen and Miscellaneous Workers Union, Local 192, or any
other labor organization of its employees , by discriminatorily dis-
charging any of its employees.
(c) In any other planner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition
of employment , as authorized in Section 8 (a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action -which the Board finds will
effectuate the purposes of the Act :
(a) Offer to Kenneth Gossmeyer, Jr., immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to his seniority or other rights and privileges , and make him
whole for any loss of earnings he may have suffered as a result of the
discrimination against him , in the manner set forth in the section of
this Decision and Order entitled "The Remedy."
(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
GRAND-CENTRAL CHRYSLER, INC. 191
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, snake available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due to
said employee.
(d) Post at its operations in Chicago, Illinois, copies of the attached
notice marked "Appendix." 8 Copies of said notice, to be furnished
by the Regional Director for Region 13, shall, after being duly signed
by the Company's representative, be posted by the Company immedi-
ately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be
taken by the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order"
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
membership and activities, and the union membership and activi-
ties of other employees.
WE WILL NOT advise employees that their compensation will
depend upon their disaffiliation from a union.
WE WILL NOT obstruct the Board's processes by instructing a
supervisor to give false information to a Board agent and by mak-
ing available to the Board agent, for the conduct of interviews, a
room which contains a hidden microphone.
WE WILL NOT discourage membership in or activities on behalf
of Automobile Salesmen and Miscellaneous Workers Union, Local
192, or any other labor organization of our employees, by discrimi-
natorily discharging any employee.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in See-
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 7 of the Act, except to the extent that such rights" may be
affected by an agreement requiring membership in a labor orga-
nization as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
AVE WILL offer to Kenneth Gossmeyer, Jr., immediate and full
reinstatement to his former or a substantially equivalent position,
without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings he may have suffered
by reason of the discrimination against him.
GRAND-CENTRAL CHRYSLER. INC.,
Employer.
Dated---------------- By-----------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of his right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 881 U.S. Courthouse and Federal Office Building, 218 South
Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they
have any question concerning this notice or compliance with its
provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on August 20, 1964 , and thereafter amended, by Automobile
Salesmen and Miscellaneous Workers Union, Local 192, herein referred to as the
Charging Party or the Union , the General Counsel of the National Labor Relations
Board, herein referred to as the General Counsel , by the Regional Director for
Region 13 (Chicago, Illinois ), issued a complaint dated October 30, 1964, there-
after amended prior to and at the hearing in this matter , against Grand -Central Chrys-
ler, Inc., herein referred to as the Respondent . The complaint alleged that the
Respondent had engaged in and was engaging in unfair labor practices in violation
of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as amended, by
reason of the discharge of Kenneth Gossmeyer ( whose correct name, as shown by
the record , is Kenneth Gossmeyer , Jr.), and by other activities discussed hereinafter
Respondent duly filed an answer to the complaint , which , as amended , admitted cer-
tain allegations of the complaint , but denied the commission of any unfair labor
practices.
Pursuant to notice , a hearing was held before Trial Examiner Sidney J. Barban at
Chicago, Illinois, on February 9, 10, 11 , 17, 18, and 19 , 1965. All parties appeared
at the hearing and were afforded full opportunity to participate , examine witnesses,
and adduce relevant evidence . Oral argument was waived . Helpful briefs have
been received from the General Counsel and the Respondent and have been care-
fully considered.
GRAND-CENTRAL CHRYSLER, INC. 193
Upon the entire record in this case, and from his observation of the witnesses, I
make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Illinois corporation engaged at Chicago, Illinois, in the retail
sale, distribution, and servicing of new and used automobiles. During the calendar
year 1964, Respondent sold and distributed automobiles and other products of a
gross value in excess of $500,000 and in the same year received automobiles and
other items of a value in excess of $50,000 at its place of business in Chicago which
were shipped directly to it from points and places outside the State of Illinois.
Respondent admits and I find that Respondent is engaged in commerce within the
meaning of the Act.
H. LABOR ORGANIZATION
The Respondent contends that the Charging Party herein is not a labor organiza-
tion within the intent, policy, or meaning of the Act, but is rather "a corrupt scheme
or device for enriching its promoters and ba[c]kers."
It appears that the Charging Party was chartered by Distillery, Rectifying, Wine &
Allied Workers International Union of America, AFL-CIO, herein called the Dis-
tillery Workers, on March 20, 1964.1 However, this affiliation does not appear on
any of the formal papers. Merlin W. Griffith, the secretary-treasurer of the Charg-
ing Party, testified that this organization has members among automobile salesmen
employed by the Respondent and other automobile dealers, and that the organization
exists for the purposes of representing salesmen and other workers in the automobile
sales industry in collective bargaining for terms and conditions of their employment
and in the handling of their grievances. The Charging Party has been certified by
the Regional Director of the Board on the basis of stipulations for certification upon
consent election in Cases Nos. 13-RC-10143 and 13-RC-10240 as the exclusive
representative for collective bargaining at Station-Wagon Sales, Inc , and McCormick
Place Motors, Inc., employers apparently engaged in operations similar to Respondent
and also located in Chicago, Illinois. It also appears from Griffith's testimony that
the Charging Party has secured a recognition agreement from another employer.
Employees participate in the organization by attendance at meetings, organizational
activities, and collective-bargaining negotiations. Griffith asserted that the Charging
Party had participated in a number of collective-bargaining sessions with McCormick
Ford and had currently filed charges against that employer.
Based upon this evidence, which is credited, I find that the Charging Party clearly
complies with the definition of a labor organization contained in Section 2(5) of the
Act. The Respondent contends, in essence , that, nevertheless, the Board should not
purposes of the Act. However, the Board in Alto Plastics Manufacturing Corpo-
ration, 136 NLRB 850, 851, 853, considered and rejected the contentions raised here,
stating,
. Intervenor's ultimate position is that the Board should withhold its processes
from the Petitioner because it is a "corrupt" labor union and because such an
organization is not a labor organization within the meaning of the Act. The
request implicit in the contention is appealing. However, we find no warrant in
the statutory scheme to authorize such action.
* * * *
It must be remembered, however, that the Board administers a statute, and is
duty bound to concern itself solely with those matters which are within the
scope of the statute, and to exercise only those powers which Congress invested
1 The date appears in the decision of U.S. District Judge J. S. Perry upon motion for
preliminary injunction sought by the Distillery Workers in the action brought by that
union to impose a trusteeship upon the Charging Party I have taken judicial notice
of that action of Judge Perry, dated March 3, 1965 (physically attached to Respondent's
motion to reopen the hearing in this matter, received as Respondent's Exhibit No 12),
as well as Judge Perry's earlier orders dated February 4, 1965 (Respondent's Exhibit
No. 4), and February 11, 1965 (Respondent's Exhibit No. 11) Respondent's motion to
reopen the hearing to take further evidence with respect to the status of the Charging
Party as a labor organization, based upon the further proceedings before Judge Perry,
was denied.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Board. We believe that the matters alleged by the Intervenor in support
of its contention are outside the Board's statutory competence and that the
Board is therefore without power under the Act to remedy them.
The Respondent suggests that Alto Plastics, involving a representation matter,
should not be binding upon me in this case involving alleged unfair labor practices.
This contention is disposed of by the Board's decision in Edward Fields, Incoi po-
rated, 141 NLRB 1182, enfd. as modified 325 F. 2d 754 (C.A. 2), adopting the
rationale of Alto Plastics in an unfair labor practice matter.
Finally, Respondent urges that this case differs from Alto because here the Charg-
ing Party has been enjoined by a U.S. district court from " engaging in any organiz-
ing or collective bargaining," pending determination of the proceeding or further
order of the court. However, even assuming that this order, first issued on Feb-
ruary 4, 1965, may affect the status of the Charging Party as a labor organization at
the times material to this matter. Furthermore, it is clear that the Order, by its
terms, is not meant to be permanent. The Board has held that even though a local
union is temporarily unable to function because of the upheaval following the
appointment of a trustee, the local union may still continue to exist as a labor orga-
nization within the meaning of the Act. Dorado Beach Hotel, 144 NLRB 712. Cf.
The Bunker Hill Company, 146 NLRB 331 (status of labor organization under the
Act recognized pending final determination that it is disqualified to act as collective
bargaining agent).
It is therefore found that the Charging Party is, and at all times material to this
matter has been, a labor organization within the meaning of Section 2(5) of the Act.
III. SUPERVISORY ISSUES
This proceeding involves only the sales activities of Respondent in which approxi-
mately 15 to 19 new- and used-car salesmen are engaged. The following are undis-
putedly managerial or supervisory personnel concerned with those operations: Joseph
Buttitta is the president of the Respondent; Jack Buttitta is executive secretary and
the operating manager of the Respondent; James Sioko identified himself as general
manager of Respondent; and Louis Lessor is a sales manager of Respondent.
In the original complaint issued October 30, 1964, and in each successive amended
complaint, Robert Miller, identified as a new-car manager, is alleged to have been
a supervisor and agent of Respondent at material times. Respondent's answer dated
December 23, 1964, admitted this allegation. Respondent's answers to subsequent
amended complaints in this matter deny that Robert Miller was a supervisor or
agent of Respondent as alleged in the complaint. At the hearing, General Counsel
moved to also amend the complaint to allege that Sam Polly 2 was, at times mate-
rial to this proceeding, a supervisor and an agent of Respondent. Respondent claims
that Polly did not occupy a supervisory position and that it is not responsible for his
activities. Respondent asserts that Polly was a "closer" for a short time, from the
early part of June to the middle of July 1964 and thereafter reverted to the posi-
tion of an ordinary salesman. Robert Miller apparently succeeded Polly as a
"closer" and continued in that position at all times material to this proceeding
It is clear that no salesman in Respondent's establishment could complete a sale
without reference to a closer, for only the closer has authority to sign the bill of
sale and authorize delivery of the car. Problems with respect to sales price, credit,
financing, time payments, valuation of tradein, and the like were referred to the
closer, who has considerable discretion in completing the sale, subject to the ability
of Feldman, head of Respondent's credit department, to sell the customer's note or
other evidence of credit to a bank or some similar financial institution. Where the
salesman is unable to persuade the customer to agree to terms satisfactory to the
Respondent, the closer attempts to "rework the deal" to secure more satisfactory
terms. In fact, the salesmen were encouraged to turn any customer whom they
could not sell over to a closer. Kenneth Gossmeyer, the salesman whom Respond-
ent is alleged to have discriminatorily discharged, stated that "There is a saying at
Grand-Central Chrysler, if an individual comes in the establishment to use the wash
room, see that they see a closer before they leave " While the closer was completing
the sale, the salesman was expected not to interfere with the transaction
During the period relevant to this matter there were at least three persons who
regularly acted as closers. Two of these were Siokos and Lessor. The third was
2 Polly, who appeared as a witness for Respondent, stated that his proper name was
Sam Polakoff, but was generally known as Sam Polly and is so referred to herein.
GRAND-CENTRAL CHRYSLER, INC. 195
Polly for a short time, succeeded by Robert Miller. Respondent's witnesses do not
substantially dispute the duties and authority of the "closer" as set out above s
However, although Respondent admits that the term "closer" is loosely applied to
both closers and managers, it emphasizes that the two are different positions, with
the manager exercising "executive" authority that the "closer" does not possess.
The closer is paid a salary ranging from $175 to $200 a week, with an "override"
of up to $5 for each car he delivers. The closers do not punch a timeclock The
closer does not sell cars from the floor unless specifically requested by a particular
customer. The regular new- or used- car salesman employed by Respondent receives
a weekly salary (or "front") ranging from none whatsoever to $75, plus a commis-
sion on each car sold, normally 15 percent of the profit on the vehicle. Salesman
punch a timeclock.
The employees normally carry their employment problems to the closer, appar-
ently without distinction between the "managers" and the "closers," and have secured
favorable action through the intervention of the closer. On one occasion, Polly
adjusted Gossmeyer's timecard when he was late. On another occasion, after advis-
ing an employee he had forgotten to punch his timecard, Robert Miller obtained an
approval of the timecard from Lessor and assured the employee that everything had
been taken care of.
When Gossmeyer quit Respondent's employ after 2 days because of dissatisfac-
tion with the amount of the "front" and other conditions, it was closer Polly who
requested Gossmeyer to come in and talk to management about returning to work.
Polly also talked with Gossmeyer on this occasion before turning him over to Siokos
and Jack Buttitta who persuaded him to return. Robert Miller testified that as a
closer he interviewed applicants for sales positions and two men whom he recom-
mended were hired.4 In addition, Robert Miller testified that as a closer, his dtuies
included "supervision of the men," which he explained as "to watch them and keep
them on their toes."
John Zrelak, an ex-employee of Respondent, testified that Robert Miller, as well
as Jack Buttitta, Lessor, and Siokos would move salesmen from one sales location to
another, during his tenure as an employee . He asserted that he had also seen Robert
Miller and Jack Buttitta instruct salesmen to transport customers to their destination,
in cases where the customer's car was not ready.
On another occasion , when a salesman complained to Robert Miller about the
amount of his commission, Miller promised to speak to Jack Buttitta about getting
this adjusted and subsequently advised the salesman that this adjustment would be
made.
When General Manager Siokos decided Gossmeyer was to be discharged, he
instructed Robert Miller to pull Gossmeyer's timecard and advise Gossmeyer of his
termination.
The only other closer who testified was Sam Polly, called as a witness for Respond-
ent. Polly asserted that, in completing the sale of a car brought to him by a sales-
man, the manager and the closer were practically the same. In his words, "The
manager is the house and the closer is the house also "
This evidence, and the record as a whole, reveals a close identity between the
so-called "closer" and the management of Respondent. Not only is the closer held
out to the employees as an agent of management, but is placed in a position where
he can vitally affect the compensation earned by the salesmen for their services.'
3 To some extent, the testimony of Siokos deviated from the findings stated, as in his
testimony that only the two managers, and not the closes, could authorize delivery of
the car to the customer This is contrary to the testimony of the other witnesses, includ-
ing Lessor, who testified that the closer, as such, could authorize the delivery of a car
and sign a bill of sale with the customer. Siokos' testimony tended to excessively depreci-
ate the status and authority of the closer and I do not credit it.
* Siokos, on the other hand, testified that interviews of applicants for employment were
carried out by Jack Buttitta, Lessor, and himself and that no one else had authority to
hire a salesman. He stated, in response to a leading question, that where a salesman or
a closer recommended hire of an employee, neither "had authority to make that recom-
mendation effective " However, he admitted that he "might be influenced a little stronger
if the recommendation is made by a closer " Siokos further asserted that the closer did
not have authority to direct salesmen in the course of their work
5 Thus, in its newspaper advertisement for new employees, as set forth in the record,
Respondent states, in pertinent part, "You don't have to be fully expd [experienced] we
have four closers to assist you Earn $10,000 or more
212-809-66-v of 155-14
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence is convincing that the closer, in the course of his duties, has authority
to responsibly direct the salesmen in the course of their employment, to pass judg-
ment on their sales, and direct them in the manner of making their sales, using inde-
pendent judgment and discretion, and to make effective recommendations with
respect to employment and employee working conditions. It is therefore found that
Robert Miller and Sam Polly, at the times they were occupying the position of closer
with the Respondent, were supervisors within the meaning of Section 2(11) of the
Act Indeed, even if they were not technically "supervisors" within the meaning of
the Act, the closers were held out by Respondent to have such apparent authority
to speak for Respondent in relation to the salesmen's daily employment and were
placed in such a strategic position to translate to the salesmen the desires and policies
of management that Respondent may be fairly held to be responsible for their activi-
ties within the apparent scope of their authority and employment by Respondent.
N.L.R.B. v. Des Moines Foods, Inc., 296 F. 2d 285 (C.A. 8); N.L.R.B. v. Solo Cup
Company, 237 F. 2d 521 (C.A. 8); see N.L.R.B. v. Mississippi Products, Inc., 213 F.
2d 670, 672-673 (C.A. 5).
General Counsel appears to contend that Polly should be considered to be an agent
of Respondent even after he ceased to be a closer and reverted to the status of a
salesman. The basis for this assertion is the fact that Polly allegedly associated with
management about the Union, and, on occasion, stated to Gossmeyer that he was
relating a conversation with management officials about Gossmeyer. The evidence
does not establish that Polly, after he was relieved of his responsibilities as a closer,
had either actual or apparent authority to act or speak for management in respect to
labor or employee relations matters, and I so find. It is therefore found and con-
cluded that after Polly ceased to be a closer, he did not continue to be a supervisor
and was not thereafter held out by Respondent as an agent or spokesman on employ-
ment matters.
IV THE ALLEGED UNFAIR LABOR PRACTICES
A Independent nets of interference, restraint, and coercion
1. Alleged illegal interrogation and promises
The General Counsel asserts that on several different occasions, Respondent
engaged in illegal interrogation of employees and that on one occasion Robert Miller
promised an employee extra money on condition that the employee cease supporting
the Union.
The activities involved apparently occurred during a few days in August 1964,
when Gossmeyer, who was discharged on August 20, was particularly active on
behalf of the Charging Party. Zrelak, who was an employee at the time, but who
has since left the Respondent's employ, testified that shortly after he joined the
Union in the early part of August, closer Robert Miller asked him whether Goss-
meyer had gotten him to join the Union Zrelak evaded answering and directed
Miller to Gossmeyer. Miller, who was called as a witness by the General Counsel,
was not asked about this incident by any party. Zrelak's testimony as to this inci-
dent is credited.
Zrelak further testified that about the middle of August Siokos approached him
near the new-car showroom and asked Zrelak if he knew anything about Ken Goss-
meyer's union activities. Zrelak states he told Siokos, "Well, why don't you ask him
I don't try to follow him or take care of his business, I have enough to worry
about myself " This conversation was specifically denied by Siokos From my
ohservation of the witnesses and evaluation of the testimony on the record as a
whole, I am convinced that Zrelak is the more credible witness and credit his account
of this conversation.
Nick Varventiotis (referred to as Vern in the record and herein), who was also
an employee at the time, but who has since left the employ of Respondent, testified
that about mid-August, Siokos had a conversation with him in Siokos' office in which
Siokos asked him if he knew of anyone who had been sent by the Union to Grand-
Central Chrysler. Vern stated he told Siokos that he did not know and asked Siokos
why he raised the question. The witness testified that Siokos answered as follows
"And he told me that he thinks that-or I don't remember exactly that Kenny Goss-
meyer was from the union." Slokos denied asking Vern if he knew of anyone who
had been sent to Respondent by the Union or having any such conversation with
Vern.
Respondent urges that Vern's testimony was impeached by prior inconsistent state-
ments in his affidavit given to the General Counsel. Respondent further vigorously
GRAND-CENTRAL CHRYSLER , INC. 197
argues in its brief that Vern should not be credited , in essence , on the ground that
he was hostile to, and was attempting to put pressure upon Respondent because of
commissions which he claims Respondent owes him.
In his affidavit , Vern stated that Siokos called him in his office and told him that
he (Siokos ) had heard that Gossmeyer belonged to the Union and asked if Goss-
meyer had talked to him about the Union Vern stated, in the affidavit , "It is my
belief that the union sent Gossmeyer to sign us up."
Vern spoke with an accent and appeared to have the difficulty of some foreign
born persons of translating his thoughts and articulating his ideas into idiomatic
English. I do not believe that there is any essential difference between Vern's tes-
timony and the statements in his affidavit and credits his testimony that Siokos inter-
rogated Vern with respect to the current union activities at Respondent 's place of
business and linked Gossmeyer to those activities.
Polly, who was called as a witness by Respondent , admitted on cross-examination
that during this period , in the context of discussions around Respondent 's shop con-
cerning the union difficulties of Johnson Ford , another automobile dealer in Chi-
cago, Jack Buttitta told him that Buttitta did not care whether the Union came in,
but that he did not want "anyone to try to instigate it," and that Buttitta further
"asked me if there was any union men here and if I was a union man." This occurred
sometime in August . Buttitta was just talking in general terms; e g., "He asked me
if any one approached me. I did not tell him that anyone approached me " Jack
Buttitta acknowledged that he had a conversation with Polly about the Union; in
fact, he asserts he spoke to no one else about the Union . While vague and appar-
ently confused about this conversation at times, Buttitta testified that, in this instance,
he told Polly that he was not against unions , but "if there was a union to come, I
want them to come in the right way without making any sweetheart deals between
the men and the union , something like that." On cross -examination , Buttitta stated
he did not want any unions making sweetheart deals "to instigate trouble. " He fur-
ther denied questioning Polly about union activities.
Although Polly was an unimpressive witness generally , the circumstances under
which this testimony was given on cross-examination , and the fact that it confirmed
evidence previously given in an affidavit to the General Counsel , persuades me that
Polly's testimony in this instance is more reliable than that of Jack Buttitta, whose
testimony on this matter was vague and confused . To the extent that it was contra-
dicted by Jack Buttitta , the testimony of the latter is not credited
An additional incident , involving Robert Miller, was testified to by Nick Vern as
occurring during this same period in August . On this occasion, Vern complained
to Miller that he did not get as much commission as he was supposed to receive on
a deal, and stated that he was going to quit . Miller stated that he would talk to
Buttitta to see if he could obtain the money for Vern which he had lost Vern states
that a half hour later , Miller returned and said, "Okay . Everything is taken care of,
but you 'd better take your signature out of the union." Neither Robert Miller nor
Jack Buttitta was questioned about this testimony . It is credited.6
These instances of interrogation do not appear to be coercive within the meaning
of the Board's decision in Cannon Electric Company , 151 NLRB 1465, and are
therefore not violative of the Act . It is recommended that these allegations be dis-
missed. However, the statement of Robert Miller to Vern that his compensation
O Vern also testified that at some unidentified date in October , after Vern had left
Respondent 's employ, Robert Millei visited him at his home Duiing the course of the
conversation between them, Miller told Vern that lie was going to call Joseph Buttitta
and ask for money the Respondent owed him and stated that if Respondent refused , Miller
was going to tell the truth concerning Gossmeyer 's discharge Vern asserted that Miller
told him that one of the reasons for Gossmeyer 's discharge was his union activities
Robert Miller later testified as a witness by the General Counsel but was not questioned
about this conversation . Miller testified , however , that he had left Respondent ' s employ
in October . It is readily apparent , and I find , that Miller had ceased his employment
with Respondent at the time of this conversation with Vern Miller 's statement, not
made in the course of his employment as a supervisor , is therefore not binding on Re-
spondent and Vern's testimony as to the statement is hearsay See Eastman , et al. v
US, 212 F 2d 320, 322-323 ; Lyons Milling Co v. Goffe & Carkener, Inc, 46 F 2d 241,
248 Cf Drico Industrial Corpoiatson . 115 NLRB 931 However , since the evidence was
received without objection , it may be given consideration in the resolution of the issues
herein. Syracuse Engineering Co., Inc v. Haight, 97 F. 2d 573 (C.A. 2) Nevertheless,
since the testimony is conclusionary , rather than factual , and since the General Counsel
chose not to question Miller himself about this , I conclude that this testimony is entitled
to, and have given it , no weight.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would depend upon his disaffiliation from the Union did constitute interference with,
restraint, and coercion of employees in the exercise of their rights under the Act in
violation of Section 8(a) (1) of the Act.
2. Alleged obstruction of the Board's processes and surveillance
Both of these allegations are rooted in circumstances attendant upon Respondent's
treatment of Larry Miller, an agent of the General Counsel of the Board, during his
investigation of the charges in this matter.
Larry Miller visited Respondent's premises in October 1964, and was given the
use of an office in Respondent's showroom in which to interview witnesses and take
statements. Apparently Respondent made salesmen and supervisory personnel avail-
able to him for this purpose.
The evidence shows that there was at the time a microphone concealed behind a
calendar in this room. Robert Miller testified that the microphone had been in use
in 1962 when he previously worked for Respondent, at which time it was used as a
sales tactic by the salesmen. However, it was admitted that Robert Miller had no
way of knowing whether the microphone was in use during the time Larry Miller
was interviewing witnesses in the room. Respondent's witnesses denied that the
apparatus was in use at the time, or that it had been for 7 years. It was asserted that
the room which served as a listening station for the apparatus was, and had been,
locked up Robert Miller also testified that this room was padlocked. There is no
evidence of knowledge among the employees, as distinguished from supervisors, of
the existence of this device.
General Counsel urges that even though direct evidence that Respondent eaves-
dropped on these interviews is lacking, Respondent is nevertheless responsible for
creating an impression of surveillance in this situation. It is argued that "Respond-
ent must be presumed to have known and therefore intended that the reasonable
consequences of its act would be to create in the minds of the witnesses an appre-
hension of surveillance and if possible unfavorable action." It is also urged that
"Based upon the known use of the microphone by salesmen" an inference can be
made that "everyone interviewed in the bugged room was aware of its presence."
I am of the opinion that the record in this case will not support a finding that
Respondent either eavesdropped on these interviews or anticipated that the persons
interviewed would be conscious of the presence of the listening apparatus and be
effected thereby, or that Larry Miller was intentionally placed in that room for that
purpose.
However, since the test of interference, restraint, and coercion under Section
8 (a) (1) of the Act depends not on the anticipation or intent of the employer, but on
the reasonable tendency of its acts, see, i .e., American Freightways Co , Inc., 124
NLRB 146, I have carefully considered whether an inference is justified that the
persons interviewed were conscious of and therefore affected by the presence of the
device. There is no basis, on this record, for a finding that the device had been used
for at least 2 years prior to the time of the interviews. I am impressed by the fact
that the General Counsel avoided questioning any other employee about the point,
so it must be assumed they were not aware of the device and therefore this was not
a matter of general comment and discussion among the salesmen. It may be that
some salesmen were conscious of the device and were restained by that knowledge,
but this is speculation.
General Counsel urges that the situation with respect to Robert Miller stands on
a different foundation. As has been noted, Robert Miller had been instructed by
Siokos to tell Gossmeyer that his employment was terminated. It is alleged that
Respondent directed Robert Miller to give false information about the discharge to
Larry Miller in the course of the investigation of the charges in this matter and that
since Robert Miller was restrained during his interview with Larry Miller by knowl-
edge of the existence of the hidden listening device, the agent of the General Counsel
of the Board was thereby obstructed in his investigation
The sole testimony adduced by the General Counsel in support of the charge that
Respondent ordered Robert Miller to give false evidence is the following:
Q. Did you have a conversation with Lessor concerning the presence of the
Board Agent
A. Well, Mr. Lessor called the men together and said there was a fellow here
from-now I know it is the National Labor Relations Board, at the time I did not,
and he wanted to ask questions pertaining to Gossmeyer. And he told me, he
said, well you didn't fire him. So that there isn't anything you can tell him about
it. So just go in and see what he wants to know
GRAND-CENTRAL CHRYSLER, INC. 199
Q. Did Mr. Lessor tell you what to tell Mr. Miller, Larry Miller?
A. No, he didn't tell it to me-any words to tell him. He wanted to find out
about the firing of Gossmeyer and he says to me, you didn't fire him So you
wouldn't know anything about it.7
Since this testimony is vague and ambiguous, and is obviously subject to valid
inferences other than an intent to have the witness supply false evidence to the agent
of the General Counsel, I find that the evidence does not support the allegation of
the complaint that Respondent obstructed an investigation conducted by the Board
by directing that false information be given to the Board in this proceeding.
There remains, however, a most difficult question to be disposed of Robert
Miller knew and was conscious of the presence of the hidden listening device. Both
his testimony and that of Respondent supports the finding that the apparatus could
be used, surreptitiously, by the simple process of unlocking a padlocked room. This
raises the question of whether Respondent should be held responsible for placing a
supervisor, without intent on the Respondent's part, in a position where he was
restrained in freely communicating with an agent of the General Counsel of the
Board in the course of his official investigation.
I am constrained to hold that Respondent is not responsible in such a case. While
the processes of the agency were obstructed to some extent in this situation, the evi-
dence will only support the conclusion that this was unintentional. The Respond-
ent should be held responsible only for the intended or reasonably foreseeable con-
sequences of its acts, not for the fortuitous or accidental consequences of its actions.
It is therefore recommended that the allegations of the complaint that Respondent
illegally kept its employees' union activities under surveillance or illegally inter-
fered with or obstructed an investigation conducted by the Board, by keeping such
investigation under surveillance, or illegally directed that false information be given
to the Board, be dismissed.
B. The discharge of Kenneth Gossmeyer, Ji.
1. Gossmeyer's employment and union activities
Gossmeyer was first employed by Respondent as a salesman on June 17, 1964.
When Gossmeyer quit after 2 days of employment, he was called by Sam Polly, who
was a closer at the time, and requested to come back in to discuss reemployment.
Gossmeyer talked to Polly, Siokos, and Jack Buttitta and was prevailed upon to
return to work on the basis of certain improvements in benefits, chief among which
was Respondent's agreement to raise his weekly wage from $50 to $75. Since
Respondent's normal practice seems to have been to start salesmen at $50 or less
and salesmen were raised to $75 after some period of service, these additional bene-
fits constitute some suport for Gossmeyer's claims that Respondent regarded him
well as a salesman at the time.
Gossmeyer apparently returned to work for Respondent on June 26. He claims
that by various friendly comments, chiefly from Jack Buttitta, Respondent indicated
its satisfaction with his work and attitude. These claims are denied by Respondent
Respondent's asserted complaints and dissatisfaction with Gossmeyer will be con-
sidered hereinafter. It may be noted at this point, however, that it was generally
agreed by all witnesses who testified that the average weekly sales of a salesman at
Respondent's operations was three cars per week. This is borne out by records of
two full-time salesmen, alleged to have sales opportunities comparable to Gossmeyer.
Gossmeyer was paid commissions on only 14 cars in a little more than 8 weeks of
employment. Gossmeyer claims, however, that he sold other cars for which he was
not paid commissions. I note that even if Gossmeyer were credited with all of the
sales claimed by General Counsel (23 to 24), he would then only average about 3
cars per week for the period of his employment. There is no basis, therefore, to
consider Gossmeyer a superior salesman in terms of sales for this period.
On July 25, Gossmeyer joined the Union; thereafter he talked to 10 of Respond-
ent's salesmen concerning the Union on or about Respondent's premises. So far as
is shown, only one of these employees signed a card for the Union, one other having
previously signed. A substantial part, if not nearly all of Gossmeyer's activities in
regard to the Union, occurred during the first 2 weeks of August. During this period
Sam Polly seems to have taken a particularly active interest in Gossmeyer and the
Union. Zrelak testified that from the first of August Polly kept asking him whether
7 Lessor denied that he told anyone to tell Larry Miller anything but the truth, but
does not otherwise contradict Robert Miller's testimony
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
`le had joined the Union and whether the Union had enough members Polly also
told Zrelak that as a former member of "management," he knew that the Union
would not do any good there.
About this time, Polly had the conversation with Jack Buttitta about the Union,
previously considered, in which Buttitta questioned Polly about the union activities
going on at Respondent's operations.
Also about this time, Robert Miller had a conversation with Jack Buttitta in which
Buttitta asked him if he had heard anything about a union. When Miller stated he
had heard rumors to that effect, but no one had spoken to him about it, Buttitta
stated that he hard heard rumors also and was interested in knowing the truth about
the matter. Miller told Buttitta that he had heard that Gossmeyer was to be the
union steward and states that both of them laughed at this because they thought that
Gossmeyer was "kind of young to have a responsible job like that." Miller stated,
after referring to a problem that Gossmeyer was having with Feldman in the credit
department, that Buttitta said that this was his business, and if Gossmeyer did not
work out he could be let go. When Miller said this might be difficult with a union,
Buttitta replied, "Maybe we can hope he falls down and breaks a leg or something." 8
The rumor that Gossmeyer would be the union steward was also not unknown to
Sam Polly. According to Gossmeyer, Polly talked to him several times, during which
conversations Polly inquired as to whether Gossmeyer was a union member and
who else was a union member and "kidded" with Gossmeyer with respect to his
being the union steward Thereafter, Gossmeyer states that Polly came out and
whispered to him, "Goss, they just asked me about being a union steward. You are
on your way out, the heat is on." The record is not satisfactory that Polly identified
"they." Gossmeyer clearly interpreted "they" to mean Siokos and Jack Buttitta.
Polly denied that he told Gossmeyer that Buttitta and Siokos had questioned him
as to whether Gossmeyer was a union steward or that he told Gossmeyer that the
heat was on and he was on his way out However, when asked whether he had ever
had a conversation with Gossmeyer of this nature, Polly answered, "The conversa-
tion was just about union, that was all-and him and I discussed it." At another
place, Polly admitted he might have told Gossmeyer that "the heat was on," but only
in terms of selling more cars. I believe that Gossmeyer's account of the conversa-
tion is the more credible, and, in fact, is not substantially denied by Polly. However,
since Polly has been found not to be an agent of Respondent in these matters, these
statements are not binding upon Respondent and are included here for the light they
may shed upon Respondent's claim that it was without knowledge of the union activi-
ties going on at its place of business, a claim considered hereinafter.
During this period, also, Robert Miller questioned salesman Zrelak as to whether
Gossmeyer had induced him to join the Union and suggested that Vern "take his
signature out of the union."
Gossmeyer asserts that within the last 5 or 6 days of his employment Respondent's
attitude toward him changed noticeably. In essence he claims that no one would
talk to him and that the closers, without good reason, would not accept his "deals "
In Gossmeyer's words, "I got nothing but static from them within the last four or five
days."
This asserted change in attitude on the part of Respondent is supported to some
extent by the testimony of Joseph Buttitta, president of Respondent, who testified
that Respondent decided to check into rumors that Gossmeyer had a criminal record
a few days before his discharge, "because of his atttude, because of his action, we
got a little suspicious of it."
8 In response to leading questions referring to killer' s testimony, Jack Buttitta denied
the substance of this conversation . On consideration of their demeanor and analysis of
their testimony , Miller's testimony with respect to this conversation is credited His
testimony was clear and convincing , showing no evidence of the hostility to Respondent
claimed in Respondent 's brief . In fact , I had the distinct impression that Miller testified
against Respondent with a measure of restraint . This was particularly evidenced in the
manner of giving his volunteered statement that Respondent had been having trouble
with Gossmeyer in its credit department , in explanation of Buttitta ' s statement that
Gossmeyer could be let go if he did not work out. Buttitta , on the other hand , tended
to be vague , evasive and argumentative , except when traversing specific testimony
GRAND-CENTRAL CHRYSLER, INC. 201
Respondent's alleged problems with Gossmeyer as an employee were assertedly
brought to a head by his absence from work on Monday, August 17.9 Siokos testi-
fied that on this day a lady called and told him that Gossmeyer was sick at home in
bed. Later that day he had an occasion to call Gossmeyer to obtain some informa-
tion from him and received no answer . Siokos states that was what made him finally
decide to let Gossmeyer go.
Mrs Gossmeyer was called by General Counsel and denied making any such call
to Respondent . Gossmeyer, himself, was not questioned about this alleged call.
Gossmeyer, however, asserted that 3 weeks prior to this date he had found out that
an acquaintance was going boar hunting on August 17 and requested Manager Les-
sor for permission to take off on that day. He states that Lessor gave his permis-
sion , but advised Gossmeyer not to tell anyone where he was going, presumably to
avoid problems with other salesmen who might want to take off However, on
August 17, Lessor had been on his vacation for about 2 weeks. The record shows
that this was known to other employees, and, based on the nature of the operation
involved, it is inferred and found that Gossmeyer was aware of this. Lessor was
not questioned about this conversation with Gossmeyer and did not deny it.
Implicit in Gossmeyer's testimony on this point is the assumption that, having
received permission from Lessor 3 weeks previous to be off on August 17, and with-
out any indication that this was known to Siokos or any other representative of
Respondent, there would be no problem in respect to his taking off on this day with-
out any current notification to Siokos or other management of Respondent. This
position is not convincing. Respondent is snown by the record to be sensitive to
problems of attendance and even has a practice of fining employees for unexcused
tardiness of an aggravated nature. Gossmeyer and other employees clearly were
aware of this. In addition, this absence occurred lust at the time when Gossmeyer,
according to his testimony, was being ostracized by management of the Respondent,
and "getting nothing but static "
As previously noted, I have found Siokos' testimony generally not acceptable.
However, in this instance, because of Gossmeyer's failure to deny having someone
call Siokos to assert he was sick, and because, as considered above, the assertion that
he would take off, under these circumstances, without notifying Respondent, is far
from convincing, I accept Siokos' testimony that some female did call him and
reported that Gossmeyer was sick that day and that he did call Gossmeyer at his home
and received no answer.
While this finding furnishes substantial support for the contention that Gossmeyer
was discharged for this unexcused absence, Respondent's own actions raise certain
questions as to whether this was actually the reason for Gossmeyer's discharge. Thus,
when Gossmeyer came in to work the following day, he was not discharged or ques-
tioned concerning his absence, but was permitted to work. In fact, nothing was
apparently said to Gossmeyer even though he was 10 minutes late that morning and
his card is marked "late." Gossmeyer had his regular day off on Wednesday,
August 19, but Respondent made no effort to notify him at his home, so far as is
shown, that he was being terminated. Instead, Siokos called Robert Miller at home
in the evening and told him to remove Gossmeyer's timecard from the rack the next
morning. Siokos told Miller that he should tell Gossrneyer "that business was slow
and we lust can't carry too many people on the payroll." 19 Miller carried out these
instructions the next morning, August 20. At the time Respondent admittedly was
running a newspaper advertisement for additional salesmen and shortly thereafter
hired additional salesmen.
The necessity of ascertaining Respondent's true motive for terminating Gossmeyer
is further complicated by the fact that when Joseph Buttitta wrote to the Regional
Director of the Board, in answer to his request for Respondent's position with respect
to the charges in this matter, the only specific reason given for Gossmeyer's discharge
was "tardiness." In addition, Buttitta denied that Gossmeyer was discharged discrimi-
natorily, denied that Respondent had any knowledge of Gossmeyer's union activities,
and asserted that Respondent was unionized in its shop, but had not been advised
of any union activity relative to its salesmen. Joseph Buttitta testified that he obtained
this information by talking to the managers and asserted, in essence, that this letter,
typed by himself, was meant to be brief rather than all-inclusive.
sThis date is fixed from Gossmeyer's timecard, Respondent's Exhibit No 3(j) The
record is somewhat confusing as to the date The timecard has Gossmeyer marked as
"sick" on this date.
11 Siokos ' denial that he so advised Robert Miller is not credited.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondent's asserted lack of knowledge of Gossmeyer's union activities
On the basis of the record in this matter, Respondent's contention that Siokos was
unaware of Gossmeyer's union activities is not at all convincing 11 As has been
found, Siokos questioned Zrelak about Gossmeyer's union activities. Also, although
there may be some question as to the exact wording of the conversation, I am satis-
fied that Siokos spoke with Vern about Gossmeyer in connection with the union activi-
ties then going on. These activities were known to both Polly and Robert Miller, who
conversed with management concerning the Union. Jack Buttitta, who was clearly
not as close to Respondent's small group of salesmen as was Siokos, was also aware
of Gossmeyer's connection with the union activities at Respondent's operations The
degree of consultation on these matters among the management group is shown by
Joseph Buttitta's testimony that even the rumor of Gossmeyer's criminal record was
discussed by the officers and managers just before his discharge I have also noted
that Siokos had no difficulty in picking up the rumor of Gossmeyer's criminal record
from general conversation among the salesmen, apparently during this same period
when Gossmeyer was engaged in activities on behalf of the Union.12
On the basis of the record in this matter, I find that Siokos was aware of Goss-
meyer's union activities prior to the date of his discharge.
3. Gossmeyer's alleged unsatisfactory service
Respondent contends, in short, that not only was Gossmeyer absent without excuse
on August 17, but that he had been a generally unsatisfactory employee before that
time. Respondent contends that practically from the time he was employed, Goss-
meyer had been excessively tardy, had problems with Mr. Feldman in the credit
department and had to be told to stay out of Feldman's department, was frequently
missing from his position on the used-car lot during working hours and was seen
talking to girls at the nearby bus stop during some of these times, misrepresented
warranties on used cars, balances, and monthly payments to customers, and promised
new tires to customers when Respondent equipped used cars only with retreaded tires.
These asserted delinquencies, together with the discovery that Gossmeyer had a
criminal record, are stated to be the reasons which convinced Siokos to discharge
Gossmeyer when he discovered that the latter had taken off without proper excuse.
The General Counsel and Gossmeyer, on their part, contend that Gossmeyer was
an energetic employee, who had been favored by Jack Buttitta at the outset of his
employment; who had no problems of any kind with the credit department or Feld-
man; who never misrepresented warranties, or improperly promised new tires, or
misrepresented monthly payments or balances to customers; who had been excused
for all of his tardiness (except one instance of 15 minutes); was not missing from his
post during working hours without permission; and had not been warned or dis-
ciplined by anyone in management.13
After full and careful study of this testimony, and the record as a whole, I have
come to the conclusion that neither the version of the Respondent nor that of Goss-
meyer is entitled to full credence. It would unduly lengthen this Decision to discuss
each of the items involved. The following, however, will indicate the basis of the
conclusion reached by me concerning the criticisms of Gossmeyer's service with
Respondent.
"Respondent argues in its brief (transcript references omitted) : "General Counsel's
only evidence of Slokos' knowledge of Gossmeyer's so-called union activities appears from
Vern's fabrication. The Government could not link Miller's alleged questioning of Zrelak
to Siokos because there was none, and regardless of my resolution of Zrelak's claim that
Siokos questioned him, the fact remains that Gossmeyer's union inklings were not a
factor in his dismissal Further, Sam Polly and Jack Buttitta as well as Siokos denied
having discussed Gossmeyer as Gossmeyer hypothesized . . Nor did Jack Buttitta
communicate to Siokos the substance of Robert Miller's remarks, if the conversation
ever occurred. Actually Jack did not learn about Gossmeyer's fate until after the
dismissal."
I' When asked the source of his knowledge of Gossmeyer's alleged delinquencies, Siokos
stated, "How did I find out? I am there all they long. I know what is going on in the
place. Every deal comes through my hands or Mr. Lessor's." [Emphasis supplied ]
13 On the point of Gossmeyer's criminal record, it is admitted that Gossmeyer pleaded
guilty to the charges against him, was sentenced to a term of 3 to 5 years in the peni-
tentiary, was paroled and his civil rights restored to him by the State of Illinois
GRAND-CENTRAL CHRYSLER, INC. 203
Respondent paints so black a picture of Gossmeyer , practically from the outset of
his employment , that it is difficult to believe that any reasonable employer would have
retained him 8 weeks under the circumstances . However, the undisputed facts show
that Respondent made a special effort to retain Gossmeyer in its employ and paid
him a premium wage to persuade him to return to Respondent as a salesman . Nor did
Respondent discipline or penalize Gossmeyer for any of these alleged delinquencies.
One of Respondent 's chief complaints asserted against Gossmeyer concerns his
tendency to be late to work . Respondent is shown to impose substantial fines upon
employees for tardiness , although, on the other hand, it also appears that Respondent
displays considerable leniency for instances of tardiness that are excused. Thus,
Polly testified that, "I have been late most of the time, sir , and nothing has been said.
As a salesman , fifteen , twenty minutes or even a half an hour ...." The record
shows that other employees have been substantially and repeatedly fined for tardiness,
but Gossmeyer was not so fined. It is clear that Respondent either excused or con-
doned Gossmeyer 's tardiness until the last part of Gossmeyer 's absence without proper
excuse on August 17.14
In the case of Gossmeyer's alleged misrepresentations to customers , the testimony
of Siokos and Lessor on the issue was so generalized and hypothetical that these wit-
nesses appeared to be describing Respondent 's operations generally, rather than
Gossmeyer's inadequacies specifically . Indeed, Siokos admitted that other salesmen
had been guilty of the same practices , and named Zrelak and O'Grady as two of the
offenders . Inconsistently , Lessor at first denied that anyone other than Gossmeyer
had engaged in such practices , but later agreed to some problem with these two in
this respect and possibly a few others whom he asserts were terminated for the same
reason. In any event , a close analysis of the testimony on this point clearly indicates
that the Respondent 's complaint was not so much that Gossmeyer misrepresented
payments and balances to the customer , as the fact that he is alleged not to have
brought the customer in to the closer at a price satisfactory to the Respondent, requir-
ing the closer to work up the price to a satisfactory figure. However, this is clearly
the function of the closer , and hardly qualifies as misrepresentation to customers.15
Both Siokos and Lessor testified that Gossmeyer wandered away from the lot and
could not be found . According to Lessor , apparently Gossmeyer was first warned
about this when he was rehired on June 26 and, from that time forward Lessor states
that he talked to Siokos every week , occasionally two or more times a week, about
this problem. However, I am unsure whether Lessor's testimony as to this concerned
Gossmeyer 's alleged absences from the lot , or Gossmeyer's alleged unexcused tardi-
ness, since Lessor tended to advert to both of them together . I have further difficulty
with the testimony on this issue because the recollection of both Siokos and Lessor
tended to fail at material points in the interrogation.
Thus, when originally asked on direct examination if he made "any observation
while you were there with respect to whether Gossmeyer stayed on the job after he
14 General Counsel in his brief renews his motion to strike Respondent 's Exhibit No. 8,
which Respondent offered as a comparative compilation of the timecards of its employees
with respect to punctuality . The summary was received , provisionally , on the basis of the
rule permitting summaries of voluminous documents , see 4 Wigmore , Evidence § 1230,
subject to the right of General Counsel to check the original documents After substan-
tial testimony had been given concerning the exhibit , General Counsel advised that the
exhibit was in material part inaccurate and sought to have it stricken Upon consider-
ation of the record at that point , I denied the motion to strike because of the testimony
already in the record and the inappropriateness of striking the exhibit on the basis of
counsel's bare assertion of inaccuracy . However , General Counsel was afforded oppor-
tunity to show the respects in which the document is inaccurate and has done so by
offering copies of the timecards upon which Respondent ' s Exhibit No 8 is based, and
these have been received in evidence Nevertheless , because of the substantial testimony
in the record which was given in connection with this exhibit and because some prejudice
might result from striking the exhibit at this late date , the renewed motion to strike is
denied. I consider, however , that because of inaccuracies and omissions in the exhibit it
is entitled to no weight Thus, it has been noted that while Sam Polly 's timecards indi-
cate that he was late 14 times out of 18 days between August 1 and 19, 1964 , Respond-
ent's Exhibit No. 8 indicates that he was punctual during this entire period It also
appears that times for which certain salesmen were assessed fines for being late during
the period covered by Respondent ' s Exhibit No. 8 do not appear on that exhibit at all.
15 Respondent 's claim of misrepresentation of warranties and alleged promises of new
tires on used cars are of a similar character and are similarly unconvincing
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checked in," Siokos answered, "No " Thereafter Siokos testified that he observed
Gossmeyer missing from the job during working hours after counsel for Respondent
was permitted by leading question to refresh his recollection
Similarly, when asked whether he saw Gossmeyer with persons other than customers
during working hours away from the lot, Lessor testified, "If he were away from the
lot, I wouldn't know where he would be. Now he had one particular spot he was
supposed to be. Now, if he spoke to people outside of that, I don't know who they
would be." However, when his recollection was refreshed, he readily recalled that
he had seen Gossmeyer at the bus stop talking to girls waiting for a bus and had
talked to Gossmeyer about this "more than one time."
All of the testimony with respect to these alleged derelictions of Gossmeyer were
general, without specification of instances (other than the girls) or times (other than
Lessor's testimony that this had been going on since June 26).
However, Gossmeyer also impressed me as prone to generalizations, exaggeration,
and impreciseness in his testimony, requiring that his testimony also be considered
with care. Thus, although Gossmeyer emphasized his zeal for selling automobiles,
and asserted, with some justification, that he worked longer hours than scheduled,1C
his sales record does not reflect that the Respondent was benefited thereby.
Fuither, although Gossmeyer claims, without equivocation, to have had no prob-
lems with the credit department or Feldman, the credible testimony of Robert
Miller, a witness for the General Counsel, was that Gossmeyer created an internal
problem for Respondent in Respondent's organization because of friction between
himself and the credit department, and it is so found.
In another instance, apparently in respect to Respondent's claim that he had mis-
represented deals by bringing them in to the closer at an improper price, Gossmeyer
testified that, in selling a car, he would not quote a price or agree to a price with the
customer, but came to the closer with the final price offered by the customer. Origi-
nally, however, in describing how a car was sold, he stated that the salesman would
"quote a price on an automobile and he would bring it to the manager for approval."
Gossmeyer also testified that the closers caused him to lose sales because he "quoted
one price and they went up on the price." He had also previously testified to making
a "tentative deal" with the customer before turning the prospect over to the closer.
I believe that the fair conclusion from all of the evidence is that Gossmeyer was
certainly less than a fully satisfactory employee, but that his faults were not unusual
among Respondent's employees. However, it is clear that, in a very short term of
employment, Gossmeyer had been a source of some friction and difficulty in Respond-
ent's operation. I so find and conclude.
4. Conclusions with respect to the discharge of Gossmeyer
Out of the welter of conflicting positions urged upon me by the parties here, the
most impressive point is the almost complete absence of evidence of union hostility
on the part of the Respondent While there were some instances of noncoercive inter-
rogation shown, no attempts to interfere with the rights of employees to engage in self-
organization, other than one remark by Robert Miller to Vern, appear in the record.
Even the statement of Jack Buttitta to Robert Miller that Gossmeyer might be elimi-
nated from employment by some fortuitous accident, appears more in a context of
Buttitta's not wanting to be saddled with an unsatisfactory employee as a shop
steward 17 than otherwise. In fact, Robert Miller's account of his conversation with
Buttitta does not suggest union animus on Jack Buttitta's nart
I have also carefully considered the instance in which Siokos deplored the effect
that picketing at Johnson Ford was having on that dealer and the General Counsel's
claim that Respondent plotted Gossmeyer's discharge, based on Joseph Buttitta's
testimony that management checked into rumors of Gossmeyer's criminal record
because they became suspicious of his actions.
Neither of these matters constitutes convincing proof of Respondent's union ani-
mus. Siokos' remarks about the Johnson Ford picketing were noncoercive and
related to his sympathy for the employer involved; it does not appear that the
16 Gossmeyer claimed to have worked a number of nights until 10 o'clock when his shift
was completed at 7 o'clock because he was "greedy for sales " His timecards bear
him out.
17 It would appear from Joseph Buttitta's letter to the Regional Director that Respond-
ent was not inexperienced in its repair shop in dealing with unions
GRAND-CENTRAL CHRYSLER, INC. 205
Charging Party here was involved in that picketing Joseph Buttitta 's testimony not
only does not establish a plot against Gossmeyer , but, indeed , evidences a legitimate
interest in information about an employee , quite probably stirred up by his union
activities.
General Counsel 's main reliance , it appear to me, is based , not so much on affirma-
tive proof that Repsondent was out to break up the Union, as on the assertion that
Respondent had no reason for discharging Gossmeyer and that the reasons given
were so lacking in merit and so inconsistent that they must be considered as only
pretexts for Gossmeyer 's discharge.
As has been previously found, however , Respondent had reason for discharging
Gossmeyer , based upon his absence on August 17, and put its decision to do so in
effect prior to the start of Gossmeyer 's new workweek on Thursday of that week.18
Further, while Respondent's attempted proof of Gossmeyer 's unsatisfactory conduct
was overdone , it was not completely wide of the mark. In addition , I have noted
that the record evidences a rather substantial turnover of salesmen at Respondent's
operations , which indicates that the termination of Gossmeyer was not an anomaly
in an otherwise stable picture of employment.
I am not persuaded otherwise , in the circumstances of this case , by the fact that
Gossmeyer was told that he was being let go because business was slow, while the
Respondent was employing other salesmen , or by the fact that Joseph Buttitta, the
administrative rather than the operating head of Respondent , advised the Regional
Director that Gossmeyer was discharged for tardiness.19
While the resolution of this issue is not free from doubt , I am not persuaded, on
the basis of careful consideration of the record as a whole, that General Counsel has
sustained his burden of proving by a preponderance of the evidence that Respondent
discharged Kenneth Gossmeyer because of his union membership or activities and
therefore recommends that this allegation of the complaint be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire case, I make
the following:
CONCLUSIONS OF LAW
1 The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act
2 Automobile Salesmen and Miscellaneous Workers Union , Local 192, is a labor
organization within the meaning of Section 2(5) of the Act.
3 By the activity of Robert Miller in advising an employee that his compensation
would depend upon disaffiliation from the Union as described in section IV, above,
Respondent interfered with, restrained , and coerced its employees within the meaning
of Section 8(a)(1) of the Act, thereby engaging in an unfair labor practice affecting
commerce within the meaning of Section 2(6) and ( 7) of the Act.
4. Respondent did not interfere with, restrain , or coerce its employees in the exer-
cise of their rights under Section 7 of the Act by interrogation of employees or by
the conduct set forth in section IV, above, allegedly constituting obstruction of the
Board's processes or surveillance. Respondent did not discharge Kenneth Gossmeyer,
Jr , in violation of Section 8 (a) (3) and ( 1) of the Act.
RECOMMENDED ORDER
Having found and concluded that the Respondent has not engaged in any unfair
labor practices in violation of the Act , with the exception of an isolated action by a
minor supervisor , and it appearing that the issuance of an order to remedy that
isolated act would not effectuate the purposes of the Act, it is therefore recommended
that the complaint in this matter be dismissed in its entirety.
18 Gossmeyer ' s timecards show his day off was Wednesday and his new workweek began
on Thursday.
19 Joseph Buttitta (lid not participate in the decision to discharge Gossmeyer and
learned of the basis for his discharge from otheis It appears from the testimony of
Siokos that Buttitta did not talk with him about the matter General Counsel also refers
to the fact that Buttitta wrote "Wiseacre N. G " on Gossmeyer 's pay records . However,
the evidence reveals similar comment about another discharged employee placed on his
pay record by Buttitta and I cannot find that this was unusual action on Buttitta's part