Rockland Chrysler Plymouth, Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1974

209 N.L.R.B. 1045 (N.L.R.B. 1974)

ROCKLAND CHRYSLER PLYMOUTH 1045
Rockland Chrysler Plymouth, Inc. and Local 259,
United Automobile, Aerospace and Agricultural
Implement Workers of America
Rockland Chrysler Plymouth, Inc. and Local 259,
United Automobile, Aerospace and Agricultural
Implement Workers of America. Cases
2-CA-12887,2-CA-12966, 2-CA-12974, 2-CA-
13016, and 2-RC-16053
April 3, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On November 14, 1973, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, only the Charging Party filed
exceptions and a supporting brief. The Respondent
filed a memorandum in support of the Administra-
tive Law Judge'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
authority in this proceeding to a three-member panel.
The Board -has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings, I and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent. Rockland Chrys-
ler Plymouth, Inc., Nanuet, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
IT IS FURTHER ORDERED that Case 2-RC-16053 be,
and it hereby is, severed from this proceeding and
remanded to the Regional Director for Region 2 for
such action as he deems appropriate.
arose as a result of an organizational campaign instituted
the beginning of December 1972, by Local 259, United
Automobile, Aerospace and Agricultural Implement
Workers of America, herein called the Union. On
December 7, 1972, Respondent refused to recognize the
Union. The Union filed a petition on December 12 (Case
2-RC-16023) which it withdrew on December 26. The
Union subsequently filed the petition in the instant
representation case (Case 2-RC-16053) on February 7,
1973. An agreement for consent election was executed by
the parties and approved by the Regional Director on
February 20 and an election was conducted on March 14.
The tally of ballots showed that 19 ballots were cast, of
which 8 votes each were cast for and against the Union,
with the remaining 3 ballots being challenged. The
challenges were sufficient in number to affect the results of
the election. Thereafter, the Union filed timely objections
to conduct affecting the results of the election, based upon
allegedly improper conduct by the Employer.
The original, first and second amended charges in Case
2-CA-12887 were filed on February 21, March 13, and
March 26, 19V, respectively. The charges in Cases
2-CA-12966, 12974, and 13016 were filed on May 2, May
14, and June 27, respectively. The consolidated complaint,
based upon the above-mentioned charges, issued on July 6.
The issues raised therein are whether or not Respondent
(1) offered, promised, and granted benefits, offered,
promised, and granted a promotion to an employee,
threatened to discontinue incentive pay, threatened dis-
charge and other reprisals, gave less favorable job
assignments to two employees, and discharged six employ-
ees because of their activities on behalf of the Union in
violation of Section 8(a)(1) and (3), and; (2) by the above
conduct, Respondent tried to undermine and destroy the
majority status of the Union in an appropriate unit of
Respondent's employees, and refused to recognize the
Union as the statutory bargaining representative of
employees in the said unit, in violation of Section 8(a)(5) of
the Act.
It appearing to the Regional Director that the objections
and challenges in Case 2-RC-16053 raised substantially
the same issues of fact and law as are involved in the
allegations in the consolidated complaint, he issued his
order consolidating the hearing on objections and chal-
lenges with the trial of the alleged unfair labor practices.
This matter was heard at Brooklyn, New York, on July
16-20 and July 24-27, 1973. Upon the entire record,
including my observation of the witnesses, and after due
consideration of the briefs filed by General Counsel and
Respondent, I make the following:
1 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 Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
Si ATEMENT OF THE CASE
BERNARD NESS , Administrative Law Judge: These cases
209 NLRB No. 167
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and
admissions of Respondent.
Rockland Chrysler Plymouth, Inc., the Respondent, is
and has been at all times material herein, a New York
corporation, with its office and place of business at
Nanuet, Rockland County, State of New York, where it is
engaged in the sale and service of new and used
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
automobiles and related products. Respondent, during the
past year, in the course and conduct of its business, derived
gross revenues therefrom in excess of $500,000, and
purchased and caused to be transported and delivered
directly from points outside the State of New York to its
place of business, automobiles and other goods and
materials valued in excess of $50,000.
Based upon the foregoing, it is concluded and found that
the Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. rHE LABOR ORGANIZATION INVOLVED
Local 259, United Automobile, Aerospace and Agricul-
tural Implement Workers-of America is and has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
5
The principal owners of Respondent are William Perretti
and Morton Jelling, president and secretary-treasurer,
respectively. They also own and operate three other
automobile agencies not involved in this proceeding; one
in Totowa, New Jersey, which is unorganized and two in
New York-Atlas Chrysler in the Bronx and Bayside
Chrysler in Bayside, Queens. The Union represents the
service department employees, porters, and parts depart-
ment employees at Atlas and Bayside. The Respondent
moved to its present location in Nanuet in early November
1972. James Martin has been Respondent's general
manager for the past several years. Hank Diaz was the
service manager until December 5, 1972, when Perretti
appointed Murray Rothenberg to replace him.' At the old
location, the mechanics were on a flat rate. When the store
was moved to Nanuet, an incentive rate system was put
into effect.
B. The Advent of the Union; The Majority Status
and Request for Recognition
In the first week in December 1972, employee Richard
O'Brien contacted the Union and a meeting was held at
employee James Rose's home on December 6, 1972.
Business Representatives Carlo Oliveri and Joe Lewis 2 met
there with 10 of the employees. Oliveri discussed the
benefits of union organization with the employees and
explained that he needed a majority of the employees to
sign cards in order to seek recognition. Absent voluntary
recognition by the Respondent, he told the employees he
would file a petition with the Board together with the
authorizations. It was also pointed out that signing cards
r Rothenberg has worked at other agencies owned by Perretti and Jelling
since 1965 except for 1-1/2 years He had not worked for Respondent until
brought in to Nanuet in December 1972
z His name appears in various parts of the transcript as Lutz.
4 The above facts are found from a composite of credible testimony of
Oliveri, O'Brien , Rose, and Craven
4 Wlute. Comporetto, and Guido Falsetti I have not considered the card
of Cioffi who commenced his employment that morning His testimony was
that he signed the card that morning after the Union's request for
would give them protection in the event they were
discharged. The employees were also told the Respondent
would not be shown the cards. The 10 employees all signed
authorization cards that night at the meeting. It was
arranged that the union representatives would present
themselves at the store the following morning at 10 a.m. to
seek recognition. An employee committee was selected,
consisting of O'Brien, Francis Craven, and Donald
Moggio.3 The following morning, before the union
representatives arrived, three more employees signed
authorization cards? These cards in turn were given to
Oliveri when he first appeared on the scene.
Oliveri and Lewis, together with the employee commit-
tee, met with Perretti.5 The union representatives intro-
duced themselves and said they represented the service
department employees and desired recognition. Perretti
replied he would see his attorney, that he never had a
union come into his operation and whatever union he
presently dealt with he had inherited when he purchased
the operations He added that he beat the Union before
and would do it again.? Oliveri then handed him a Board
pamphlet describing the rights of employees and employ-
ers. (G.C. Exh. 4.) Perretti replied he knew what the rules
were. He also said that by the time he was done he would
have the three committeemen sitting there voting for the
Respondent.8
Later that day, the Union sent a telegram to Respondent,
confirming its request for recognition as bargaining
representative of "the shop employees in your service
department." At the hearing, Respondent denied receipt of
the telegram. I place no reliance on the telegram and find it
unnecessary to resolve the question of its receipt by
Respondent because of my finding that earlier that day the
Union orally had told Perretti it claimed to represent the
service department employees.
The complaint alleges the appropriate unit to be all
service and parts department employees and alleges that a
request for recognition as bargaining representative of the
employees in said unit was made on December 7 and the
Respondent refused recognition on that date .9 This is the
description of the unit as subsequently agreed upon in the
Consent Election Agreement entered into by the parties on
February 20, 1973, in the instant representation case.
Respondent's answer to the complaint denies that a request
for recognition was made for this unit, apparently relying
on the fact that nothing was said about the parts
department. Respondent appears to have abandoned this
argument because the excellent brief counsel submitted
makes no further reference to this contention. In any event,
I find that although only the service department employees
were mentioned as descriptive of the body of men sought,
the parties nevertheless understood this to include the parts
department employees. In this regard, I have noted that
recognition.
Jelling was also present at the meeting but did not testify at the hearing
Martin was not present during the entire meeting . His recollection of what
was said while he was present was obviously hazy.
6 Referring to Atlas and Bayside.
7 Referring to an aborted union campaign at Totowa the year before.
8 The above facts are based upon the composite credited testimony of
Oliver, O'Brien, Craven, Moggio. and Perretti
9 Paras 9 and 10.
ROCKLAND CHRYSLER PLYMOUTH
there is no evidence that Respondent expressed any doubt
that parts department employees were to be included.
Moreover, the Union has represented the parts department
together with the service department employees at Perret-
ti's other operations-Atlas and Bayside.10 Accordingly. I
find, as alleged by the General Counsel, that on December
7, the Union requested and was refused recognition as the
exclusive bargaining representative of Respondent's service
and parts department employees.
The parties stipulated that there were 17 employees in
this unit on December 7. Authorization cards, signed by 13
of these 17 employees were in the Union's possession at the
time it requested recognition on December 7.11 Respon-
dent does not challenge the authenticity of the cards but
argues that they should not be considered as valid
authorizations for the purpose of determining the Union's
majority.
Respondent contends that the Union made material
misrepresentations to the card signers at the December 6
meeting. He argues that the import of the testimony was
that the employees understood the cards would be used
only for filing with the Board, would protect them from
discharge, and that the cards would not be shown to
Respondent. I find no merit to this argument. As I have
found above, the employees were told at the meeting that
the Union needed cards signed by a majority of the
employees in order to seek voluntary recognition. Absent
such recognition. the cards would then be furnished to the
Board with a petition requesting a Board-conducted
election. Thus, I cannot agree that employees were told
that the purpose of the cards was only to seek an election.
With respect to Respondent's further argument concerning
the validity of the cards, it is true that employees were told
at the meeting that the cards would not be shown to the
Respondent and execution of the cards would give them
protection against discharge. But I do not agree with
Respondent that such comments affected the validity of
the cards. Accordingly, I find a majority of the service and
parts department employees had designated and selected
the Union as their representative for the purpose of
collective bargaining at the time it requested and was
refused recognitio a on December 7, 1972.
C. Alleged Interference, Restraint, and Coercion
1. Perretti meetings with the employees
During the month of December 1972, beginning on
December 7. again on December 8, and on various dates
thereafter, Perretti conducted a series of meetings with the
employees concerning their efforts to being in the Union.
On December 12, the Union filed a representation petition
with the Board's Regional Office.12 Following a number of
meetings the employees had with Perretti. they met at
Rose's house and decided to give Perretti another chance,
without the Union. O'Brien was designated to inform the
10 Noted too is the stipulation by the parties that there were only two
employees in the parts department on December 7-Panas and white,
White's signed authorization card was in the Union's possession at the time
of the request for recognition
11 As noted supra. I have discounted Cioffi's card.
11 Case 2-RC-16023.
1047
Union. Several days later, on December 19, O'Brien
telephoned Oliveri and told him of the wishes of the
employees.13 The petition was thereafter withdrawn on
December 26.
The General Counsel alleges in his complaint that at the
December meetings Perretti held with the employees, he
offered and promised them benefits, and threatened to
drop the incentive pay system. The General Counsel
further alleges that during this same period, he granted
additional paid holidays to induce the employees to
abandon their support of the Union.
Perretti held a meeting with the employees on December
7, following the Union's unsuccessful attempt to obtain
voluntary recognition. He held another meeting concern-
ing the Union on the following day, December 8.
Thereafter, during the month of December, further
meetings were held. The testimony was such that it is
impossible to determine from the record the precise dates
of the later meetings or what was said at specific meetings.
At the December 7 meeting, Perretti told the employees
he did not see why the employees needed a union and that
the employees made a mistake in bringing in a union. He
remarked that the Company had just moved in to the new
building and the employees had not given the Company a
fair chance. Perretti said his door was always open and if
employees had problems they should have brought them to
him. He cautioned them that he could not negotiate with
the men now that the Union was in the picture-that it
would be unlawful for him to promise them anything.
Perretti also declared that even if the Union was brought
in, the Union would still have to bargain with him and
before any of the union demands were to be adopted, he
would first have to agree to them.i4
On December 8, Perretti held another meeting with the
employees where the Union was again discussed. The
General Counsel alleges at this meeting Perretti threatened
to drop the incentive pay system if the employees
continued to support the Union.
In support of this allegation, the General Counsel
presented a number of witnesses. O'Brien testified Perretti
said that if the Union came in, the employees would lose
their incentive pay. Comporetto, Rose, and Cioffi corrobo-
rated O'Brien. Comporetto placed this event as occurring
at the December 7 meeting. Rose and Cioffi were uncertain
as to the meeting in which Perretti made this alleged threat.
Cioffi, on cross-examination, testified that at the union
meeting on December 6, the Union had discussed wage
rates with the employees, based both on straight salary and
on incentive, and that $5.37 an hour on straight salary was
mentioned as the rate at one of the union,shops.15 Cioffi's
further testimony on cross-examination is quoted below:
Q. . . . Didn't Mr. Perretti say that if the union
was demanding a rate of $5.35 or some such thing on a
salary basis that that would mean the end of the
incentive pay?
11 O'Brien told General Manager Martin and Perretti on this same day
of his telephone call to Oliver
i 1 The foregoing findings are based upon the composite credited
testimony of O'Brien, Rose, Ctoffi. and Moggio
I-, Olivert also testified rates of pay, based on straight salary and
incentive , were discussed at the Union meeting
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I believe so.
Q. Wasn't that the context in which he was talking
about incentive pay, if they were bargaining for one
thing it might mean the loss of another?
A. Right.
General Counsel's witness, employee Moggio, testified that
Perretti spoke of incentive pay at either the December 7 or
8 meeting . According to Moggio. Perretti commented as
follows: "He asked us, you know, what the Union said they
could do for us, and we had mentioned what they said they
were going to get us per hour, and he said, 'You could
never get that much money on piece work, incentive pay,
that you would have to be on hourly rate.' "
Service Manager Rothenberg, without being able to
pinpoint the meeting at which incentive pay was discussed,
testified that at one of the meetings one of the employees
brought out that with the Union, employees would be
getting $5.37 an hour. Rothenberg related that Perretti
explained that $5.37 more likely was a figure in a salary
shop, not one with an incentive system and if that was the
figure ultimately agreed upon, it would be as a salaried
shop.
Perretti testified as to these meetings but he too could
not pinpoint the specific subjects covered at any given
meeting . With respect to incentive pay, he testified he told
the men that in order for the men to get more pay, he
would have to approve it-"there was no guarantee that
they would get-would be on incentive pay or not
incentive pay."
Considering the total testimony of the witnesses regard-
ing Perretti's comments about incentive pay, I find
Rothenberg's explanation, as substantially corroborated by
General Counsel's witnesses , Cioffi and Moggio, to be
more reliable and credible. In reaching this finding, I have
been mindful that an increased wage rate was discussed at
the December 6 union meeting and that at the December 8
meeting, employees first mentioned that with the union
employees would be getting a higher wage rate. In response
to the employee predictions, Perretti said such higher rates
could not be effected under an incentive pay system.
At one of the later December meetings with Perretti,
O'Brien insisted on reading a list of demands prepared by
the employees.16 Perretti told O'Brien he could not
comment about the demands until the Umon was out of
the picture. Perretti also said Rothenberg was recently
made service manager and he needed an opportunity to
observe how the men performed. He asked the men to wait
until after the first of the year. The General Counsel
contends that at one of these meetings Perretti threatened
to bring back Diaz as service manager if the Union came
in. It was common knowledge that the employees had been
thoroughly dissatisfied with Diaz and this was one of their
main gripes . The credible testimony discloses that at one of
the meetings prior to December 19, the employees
mentioned to Perretti that Diaz had been a disagreeable
16 O'Brien fixed this meeting as having occurred prior to his call to the
Union on December 19
17 Perretti did not specifically deny saying he would bung back Diaz as
service manager.
18 Moggio had been employed by Respondent about 4 years at the time
of the hearing. He testified that about 3-1/2 years ago the then service
person to work for. Perretti responded by saying that if the
Union came in, Diaz would be brought back. This finding
is based upon the credited testimony of Cioffi, O'Brien,
and Rothenberg.17 Rothenberg testified as follows: "Well,
Mr. Perretti said if the shop, if it is bargained and it does
become a union shop that he would transfer me back to
Totowa and bring Hank Diaz up. And he said that Hank
Diaz is well seasoned how to run a union shop because he's
worked in one for four or five years at Atlas Bronx."
The General Counsel contends that employee Moggio
was offered and granted a wage increase, the purpose of
which was to defeat the Union. The credited evidence
disclosed that at one of the Perretti meetings with the
employees, probably the one held on December 8, Moggio
complained that his wage rate was too low. Moggio said he
was earning no more than the less-skilled mechanics under
the incentive pay system and yet he was classified as a
foreman. Strange as it may seem, at this meeting Perretti,
Martin, and Rothenberg all disclaimed knowledge that
Moggio was considered a "foreman".18 Several days later,
Rothenberg came up to Moggio and told him the
Company did not realize he was a foreman-they had
wondered why he had been helping other mechanics as
much as he did and they wanted to give him a raise.
Although no definite date could be established, the record
does disclose his rate was thereafter increased from $4.50
to $4.75 an hour between January 11 and 31.19
The General Counsel alleges that Respondent promised
additional paid holidays and, on December 22 and 29, did
grant such holidays to induce its employees to abandon
their support of the Union. It is undisputed that prior to
1972, Respondent's employees worked only one-half day
on the last working day before Christmas and before New
Year's and were paid for only the half days. The same
practice existed at the Totowa agency. At Bayside and
Atlas, where the employees are represented by the Union,
the employees for a number of years have received full
days off as paid holidays. Some time before Christmas
Respondent's employees were told that the employees at
Totowa would receive the additional half day off with pay
before each of the two holidays (December 22 and 29) and
they likewise would receive this additional benefit. The
announcement of the additional holiday benefit was made
before the Union withdrew its petition before the Board.20
A significant date would be December 19-when O'Brien
notified Martin and Perretti he had told the Umon to
withdraw the petition. Considerable testimony was ad-
duced regarding the announcement of the benefit but the
testimony is vague and contradictory. None of the
witnesses appeared to have a clear recollection as to the
date when the announcement was made. O'Brien first
testified it was after he had told Perretti of his call to the
Union on December 19; he then placed the event as having
occurred before the meeting at Rose's house and thereafter
suggested it may have been announced some time between
the meeting at Rose's house and December 19. Other
manager, Mancini , told him he was a foreman and that he was to help other
mechanics who had problems
i4 The General Counsel' s brief mistakenly shows this period as January
11 to January 13
20 Withdrawn on December 26
ROCKLAND CHRYSLER PLYMOUTH
witnesses were equally uncertain in their testimony.
However I was more impressed with Rothenberg 's testimo-
ny on this point . According to Rothenberg , at one of the
Perretti meetings with the employees , O'Brien mentioned
that he learned the employees at Atlas were receiving full
days off before the holidays . Perretti replied that if he gave
it to Totowa employees he would give it to them.
Thereafter , according to Rothenberg, on either December
18 or 19 , Perretti told him to give the employees the full
days off before the holidays and the same benefit was
being given at Totowa . Rothenberg then relayed this
information to the employees . In determining on which of
the two dates the announcement was made, I am mindful
of O'Brien 's undisputed testimony that after he told Martin
on December 19 of his call to the Union , he then imparted
the same information to Perretti on the telephone. More
than likely , it may be assumed that Perretti was not at the
store on December 19. Under the circumstances , I believe
and find that the announcement of the additional half-day
holidays was made on December 18. However, in an-
nouncing this benefit , it should be noted that no mention
was made of the Union or of the organizing campaign.
Moreover, the employees were told the benefit was being
given to the Totowa employees as well.
2. Analysis and conclusions
As found above, the incentive pay system had been
instituted when the store was moved to Nanuet in early
November 1972. The employees were dissatisfied with the
manner in which it operated and a higher wage rate had
been discussed at the union meeting the employees had
with the union representatives on December 6. At one of
the later meetings with Perretti, the employees first
mentioned that with a Union they would be looking for a
substantially higher wage rate. It was in response to this
statement by the employees that Perretti remarked that
such higher wage rate would more realistically be under a
flat rate than under an incentive system. Under these
circumstances , I do not find Perretti's statement to
constitute an unlawful threat to discontinue the incentive
pay system if the employees continued their support of the
Union.
With respect to any offers or promises of benefit, the
undisputed evidence shows that Perretti constantly cau-
tioned the employees he could not make any promises
while the Union was in the picture . Even when O'Brien
insisted upon reading the employee demands, Perretti
again reiterated he would listen but would make no
comments nor could he negotiate with them . The only
actual promises of benefit disclosed were the additional
paid holidays and the promise to Moggio to increase his
rate of pay. Strange as it may seem , the uncontradicted
testimony shows that some 3 years earlier Moggio had
been granted additional responsibilities by the individual
who was then service manager-assisting less skilled
mechanics . When this was brought to the attention of
Respondent's hierarchy, Moggio was told he would receive
an increase of 25 cents per hour. No mention was made of
1049
the Union . The increase itself was not put into effect until
several weeks after the petition was withdrawn. In my
opinion, I do not view the promise to increase Moggio's
wage rate as being an unlawful promise in violation of the
Act or as an attempt to influence the employees in their
selection of a bargaining representative . When Moggio
voiced his complaint about the inequity of his wage rate,
the Respondent , being made aware of such inequity for the
first time , took steps to correct his wage rate.
As found above, the announcement of additional paid
holidays was made on December 18-before the Respon-
dent was made aware that the petition would be with-
drawn . At the two organized stores owned by Perretti, the
employees were receiving the last full working day before
Christmas and New Year 's as paid holidays. At Totowa
and at Respondent , employees had been receiving only
one-half days . At one of the meetings , employees voiced
their dissatisfaction that they were not receiving the full
days as holidays and Perretti had told them if he granted
such benefit to Totowa they would also receive it. I view
the subsequent announcement of the additional half-day
benefits as an equalization of the benefits at all four stores
rather than as an attempt to influence the employees in
their selection of a bargaining representative . Accordingly,
I find the General Counsel's allegation concerning the
holiday benefit to be without merit.
At one of the December meetings , Perretti told the
employees that if the Union became the bargaining
representative , he would bring back Diaz as service
manager. It cannot be said that Perretti was not free to
make his selections to supervisory positions but in the
context in which he mentioned the return of Diaz, I find it
to be an unlawful threat. As stated earlier , it was common
knowledge that the employees had found Diaz to be
intolerant and his presence was one of the gripes made
known to Perretti. When the employees voiced their
displeasure about Diaz to Perretti and indicated this was
one of the reasons they sought out the Union , it was at that
point Perretti said he would return Diaz to his role as
service manager if the Union became the bargaining
representative . Clearly, this message to the employees
conveyed the threat that if the employees selected the
Union, they would once again undergo an unpleasant
working relationship-they would have foisted upon them
a supervisor whom they had found to be insufferable. As
such , I find Perretti's threat to return Diaz as service
manager if the Union came in as violative of Section
8(a)(1) of the Act.
3. Alleged threats of discharge
On January 31, Rose called Oliveri and requested that
the Union once again file a petition with the Board for an
election . Thereafter, the instant petition was filed on
February 7 . 21 A hearing was originally to be held on
February 16 but was rescheduled to February 20. The
General Counsel alleges that Perretti threatened Theodore
Cioffi with discharge because he intended going to the
aborted February 16 hearing . Cioffi testified he told
21 O'Brien had already been discharged on January 23 His ternunauon
is discussed infra
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin on February 15 he was taking off the next day to go
to the union hall and to the Board. Cioffi planned to attend
the Board heanng. Martin told him to tell Rothenberg.
This he did and Rothenberg gave him permission.
However Cioffi reported for work the next morning,
having learned the evening before that the heanng had
been called off. According to Cioffi's credited testimony,
Perretti, accompanied by Rothenberg, came up to him at
work. With profanity and personal invectives injected into
his conversation, Perretti told Cioffi he had no right to go
to the union hall or the Board, that Perretti was paying his
salary, and that he would be fired if he went to the Board.
Employee Lawler testified he was walking by as Perretti
was yelling at Cioffi. He admittedly did not hear the entire
conversation but did hear Perretti say he was paying
Cioffi's wages and he had no right to go to the Board. To
the extent that the testimony of Rothenberg differs from
that of Cioffi's. I credit Cioffi's account. Rothenberg said
Perretti used no obscenities. Perretti testified, "I may have.
- It's possible. I mean its not something I wouldn't do. I
would do something like that. I admit it. If I thought he
was, I would call it to him." Rothenberg also testified
Cioffi had not said anything about going to the Boar-
d-only to the union hall. Yet Perretti was aware that
Cioffi had intended going to the Board. Both Rothenberg
and Perretti in their testimony attempted to make it appear
that Perretti was objecting to any attitude Cioffi may have
had that he could take time off as a matter of right to go to
the Board without permission of management. I find this
unconvincing particularly because Cioffi had already
received permission from both Martin and Rothenberg.
Rothenberg admitted on the stand that there was no
indication Cioffi intended taking off without permission.
Respondent argues that Perretti was privileged to require
employees to ask for permission before they go to the
Board. He states that Cioffi was not disciplined in any way
and the incident added up to nothing more than a
misunderstanding between Perretti and Cioffi.22 I do not
agree this was a mere misunderstanding. Cioffi had already
received permission from both Martin and Rothenberg to
attend the heanng. There is no evidence that employees are
refused time off for personal reasons. Perretti must have
been aware that Cioffi had already received permission to
go to the hearing and there was no indication he intended
to go without first receiving permission from supervision.
Under these circumstances, I view Perretti's tirade against
Cioffi as an obvious attempt to intimidate Cioffi from
engaging in activity on behalf of the Union in violation of
Section 8(a)(1) of the Act.
As stated above, the heanng on the representation
petition was rescheduled from February 16 to February 20
at the Board's Regional Office. Business Representative
Oliveri passed the word to the employees to come to the
Board office that morning. Approximately 12 employees
left work in mid-morning to go to the Board office and
were gone for several hours. The General Counsel alleges
that Stephen Velten, Respondent's parts department
manager, threatened John LaFazia with discharge if he
went to the Labor Board.23
LaFazia was employed in the parts department under
Velten's supervision. On February 20, employee Craven
told him the Union had called and the men had to go to
the Board to "witness the signatures so we could have an
election." Velten asked him if he was going with the rest of
the employees. According to LaFazia, when he replied in
the affirmative, Velten responded, "Well, he told me that
I'd better make up my mind good, because if I did go
down, he could guarantee that within a month's time that I
wouldn't have a job." LaFazia did go to the Board's office.
When he returned, nothing was said about his absence.
None of the employees were disciplined for absenting
themselves during working hours to go to the Board nor
was anything said to them upon their return.
Velten testified when he observed LaFazia leaving with
the rest of the men he told LaFazia he did not have to go if
he did not want to but LaFazia still went. He denied the
threat of discharge attributed to him by LaFazia. I credit
Velten and shall recommend dismissal of this allegation.
4. The promise of promotion to Gerald Lawler
The General Counsel alleges that on about February 19,
Rothenberg promised and then promoted Lawler to used
car manager to induce him to refrain from becoming or
remaining a member of the Union, and to refrain from
giving any assistance or support to it, and to induce him to
abandon his membership in and activity on its behalf.
Lawler was hired by Rothenberg on February 5, 1973, as
a used car mechanic.24 According to Lawler, Rothenberg
told him on February 19 he was making him used car
manager. Rothenberg wanted him to assume responsibility
for New York State inspections and deliveries of used cars
and to assign work to the other remaining employee in the
department, Botwick. Since Lawler was senior to Botwick
and was already performing this work he asked what the
title meant. Rothenberg replied it did not mean any more
money but as used car manager he would be a member of
management, would not be able to vote in a Board
election, and if the Union got in and later called a strike,
the Company would still be able to get out the used cars.
Rothenberg testified the conversation took place in early
February and he decided to make Lawler used car
manager because there was no person in the department
charged with the responsibility of inspections and deliver-
ies of used cars. According to Rothenberg, Lawler said he
would let him know if he wanted the position and it was
not until a month later that Lawler accepted the position.
Rothenberg denied making any reference to the Union, to
Lawler's eligibility to vote, or to the possibility of a Anion
strike.
22 Respondent 's counsel cites N LKB. v Superior Company, Inc, 199
F.2d 39 (C.A. 6), denying enforcement 94 N LRB 586, which I believe to be
inapposite.
23 As I understand General Counsel's position, he contends that the
employees who went to the Board on February 20 were engaging in a
protected activity and that this action by the employees was a reason for the
discharges of LaFazia, Craven, and Ctoffi. The other three alleged
discnminatees had been discharged prior to February 20. At the hearing the
General Counsel stated he was not contending the Respondent committed
an unfair labor practice per se by objecting to the employees leaving on
February 20 This of course is apart from the specific allegation concerning
Velten's alleged threat to LaFazia.
24 He was subsequently discharged on April 3 . An unfair labor practice
charge filed on his behalf was dismissed for insufficient evidence.
ROCKLAND CHRYSLER PLYMOUTH
I find Lawler's version more plausible and credible. I
cannot conceive that if Rothenberg earnestly desired to
promote Lawler to used car manager and give him added
responsibility to improve the operation of the department
he would have waited an entire month for Lawler to decide
if he wanted the position. At the time of the conversation
between Lawler and Rothenberg on February 19, Lawler
had not engaged in any union activity and was himself
undecided whether or not to support the Union. Obviously
therefore. Respondent had no idea how Lawler might
ultimately vote in the election. I agree with Respondent's
counsel that by making Lawler the used car manager it was
not seeking to nullify a potential affirmative vote for the
Union. However, I believe the Respondent's concern was
to keep the used car department in operation in the event
the Union was successful. Keeping in mind that the
representation hearing was scheduled for the very next day,
February 20, Respondent, under the guise of giving Lawler
a meaningless title without any change in job function,
engaged in a vain attempt to remove him from the
bargaining unit thus insuring itself an uninterrupted
operation of the used car department in the event of a
strike by the Union. Lawler voted a challenged ballot at
the election held on March 14. His name had not been
included on the Excelsior list of eligible voters furnished by
Respondent to the Board's Regional Office on February
22. At the conclusion of the election, but before any ballots
were counted, Respondent argued that Lawler was an
ineligible voter because he was a managerial employee. It
then agreed to his eligibility after some discussion. His vote
was then counted.
Under the circumstances, I believe that conferring the
title of used car manager upon Lawler in the manner
described above was an attempt to disenfranchise Lawler
from his participation in Section 7 activities and constitut-
ed an unlawful infringement upon the Section 7 rights of
the employees in violation of Section 8(a)(1) of the Act.
D. The Discharge of Richard O'Brien
O'Brien was employed by Respondent as a mechanic for
about 2 years prior to his discharge on January 23, 1973.
O'Brien was a principal spear-head in the organizational
activities among Respondent's employees. He made the
initial contact with the Union. was a member of the
employee committee that met with Perretti on December 7
seeking recognition. He appeared to be a principal
spokesman for the employees at their December meetings
with Perretti and presented the employee demands to
Perretti at one of their later meetings. It should be noted
too that O'Brien was the one who, on December 19, told
Martin and Perretti the employees had decided to drop the
Union. Respondent, while admitting that O'Brien was a
very good mechanic, contends he was discharged for
cursing General Manager Martin.
On Thursday evening, January 18, Martin told Rothen-
25 A radio was to be installed but the work had been delayed because of
the unavailability of a part
26 O'Brien admitted the profanity but testified he was laughing as he said
it. He further testified he did not recall being asked if he was kidding. I
credit Rothenberg 's version.
27 The above is substantially in accord with O'Bnen's testimony. O'Brien
1051
berg a customer had complained because his car was not
ready and wanted the work completed the following day.25
According to Rothenberg, on Friday morning he gave
O'Brien the repair order and told O'Brien that Martin
wanted the car ready by noon and to work on that car the
first thing. O'Brien told Rothenberg to tell Martin to go f-k
himself. Rothenberg, thinking that O'Brien may have been
joking, asked O'Bnen if he was kidding and O'Brien said
he was not 26 The work was completed that afternoon.
Martin had been away from the store most of the day and
that evening upon his return and after the mechanics had
gone, Rothenberg informed Martin of O'Brien's remarks
that morning. Martin said he would handle it. On Tuesday
morning, January 23, Martin called O'Brien into his office.
According to Martin's credited testimony, O'Brien admit-
ted the profanity and Martin told O'Brien that he hated to
fire him because he was a good worker but he was
discharged. O'Brien responded that he knew he would be
fired but it did not make any difference to him because he
wanted to go into business for himself.27
The General Counsel contends that the reason given by
Martin for the discharge was a pretext and refers to a
situation where Moggio used similar language to Perretti
but was absolved. On December 8, Perretti engaged in a
conversation with several employees and was exhorting his
authority. He turned to Moggio and said that because he
was the boss he could tell an employee to go f-k himself
but that an employee could not say it to him. After a bit of
baiting by Perretti, Moggio said the same thing to Perretti.
Perretti thereupon told Moggio he was fired. But a few
minutes later, after mutual apologies, Moggio was told to
go back to work 28 This incident appears to be no more
than a childish happening, comparable to one juvenile
daring another to knock a stick off his shoulder. I do not
view this as analagous to the O'Brien-Martin occurrence.
Noteworthy too is that at the time of O'Bnen's discharge,
there was no union activity, the petition having been
withdrawn about a month earlier. I am not persuaded that
Martin's reaction to O'Brien's cursing him was motivated
by any antiunion sentiments rather than concern that an
employee would believe he could with impunity engage in
such conduct towards his supervisor. Accordingly, I shall
recommend dismissal of the allegation that O'Brien was
discharged because of his union activities.
E. The Discharge of John Comparetto
Comparetto started his employment on a part-time basis
in 1969 and became a full-time warranty writer in June
1972. He signed a union card on December 7 but otherwise
was not prominent in any union activity. On February 9,
1973, Rothenberg discharged him. Rothenberg told Com-
paretto he would have to let him go; that they were
bringing in the warranty writer from the Totowa agency
(Stan Mreposki) to replace him. Rothenberg explained that
the Totowa agency was being audited by Chrysler and
testified Martin also said he had been pressured "from above" to discharge
O'Brien . I am not convinced this statement was made nor that O 'Brien told
Martin he had beenjoking.
2K Perretti is an extremely flamboyant and colorful character He is
referred to by his employees as Wild Bill and has a tendency to yell and use
colorful and profane language
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was no need there for Mreposki who had been the
warranty writer at Totowa, performing similar work as
Comparetto at Respondent. Rothenberg went on to say
that since Comparetto did not intend to remain with
Respondent, the decision was made to replace him with
Mreposki.29 Mreposki remained at Respondent's facility
for about 2 months and then returned to Totowa as a
dispatcher. Nobody was thereafter hired as warranty writer
at Respondent-the work was absorbed by the existing
complement.
The General Counsel refers to Comparetto's testimony
that in early December-before the Union's request for
recognition, Perretti asked him if he had heard any union
talk among the employees. Comparetto disclaimed any
knowledge of this activity. This conversation was denied
by Perretti. The complaint does not allege this conduct by
Perretti as an unfair labor practice and I therefore do not
make any such finding. In view of Comparetto's denial of
any knowledge of union activity, no inference may be
drawn that such interrogation established any knowledge
by Respondent of any union interest by Comparetto. It
may be that in a small shop as we have here, an inference
may be drawn that Respondent may have believed
Comparetto supported the Union. The fact that a second
representation petition was filed by the Union only 2 days
before his discharge gives rise to a suspicion that his
termination was unlawfully motivated. However suspicion
itself is hardly enough and an unlawful motive is not lightly
to be inferred. In the choice between lawful and unlawful
motive, the General Counsel must prove by a preponder-
ance of the evidence that Respondent's motive was an
unlawful one. Comparetto's tenure with Respondent was
an indefinite one-he intended to embark on another
career when he completed his schooling. Mreposki's
services at Totowa were no longer required and Perretti
wanted to retain him. Even after Mreposki was sent back
to Totowa as a dispatcher, the warranty writer work was
absorbed by the existing personnel. In light of all these
circumstances, I am not persuaded that the General
Counsel has met his burden of proving that Respondent
was motivated by antiunion considerations when it
discharged Comparetto and, accordingly, I shall recom-
mend dismissal of this allegation of the complaint.
F. The Discharge of James Rose
Rose had been employed by Respondent from June 1970
until his discharge on February 14, 1973.30 He initially was
a lube man, then a new car get ready mechanic and from
November 1972 until his discharge was a line mechanic.
The initial union meeting on December 6 was at his home
at which time he signed a union card. Another meeting at
his home was held later in December when the employees
decided to drop the Union. On January 31, Rose called
Oliveri to file another petition for an election with the
Board.
ss During the time Comparetto worked for Respondent he was also a
full-time student at night It was common knowledge that he intended to
seek a law enforcement career
30 He had been discharged in 1971 for a brief period.
31 The car was a 1973 Valiant purchased from Respondent the previous
month and had a mileage reading of 1,310 Holes
On February 13, Rose worked on a customer's car which
had been brought in to correct a water leak in the
windshield. Rose resealed the windshield and put the
chrome molding back on. The following day he was
discharged by Martin for poor workmanship. Rothenberg
credibly testified that when the customer came to pick up
his car the evening of February 13, he complained bitterly
to Rothenberg about the work.31 Rothenberg then exam-
ined the car and noticed that the chrome was all dented
and a piece of chrome was sticking out on the side. It
appeared like the chrome had not been put back properly
and had popped out. Rothenberg attempted to pacify the
customer and said the Company would order new chrome.
The customer was not satisfied because later that evening
he called General Manager Martin. Martin testified the
customer threatened to take a picture of the car and send it
to Chrysler. The customer asked Martin to look at the car
personally which he did the next morning. He ascertained
from Rothenberg that the car had not been previously
serviced and that Rose had performed the work. Martin
then discharged Rose. Rose claimed that the windshield
had been resealed previously and Martin said this was not
so. According to Martin, he told Rose, "You've been
screwing me for three years and you can't do quality work.
You're fired." He denied saying anything about being
stabbed in the back.32
I am convinced that Rose did a poor job in resealing the
windshield and that the customer complained bitterly to
both Rothenberg and Martin about the poor workmanship.
I do not credit Rose's testimony that it appeared to him the
windshield had been resealed previously. His testimony
that he did not think the work he performed on the car was
bad lends credence to Rothenberg's testimony that Rose
was indifferent to the work he performed and was a sloppy
worker. Although Martin found fault with Rose's work in
the past he candidly stated, "Let me say this to you. I am
not going to stay here and say that the man's work was that
atrocious but it wasn't the best to my expectations."
The issue as to Respondent's motivation in discharging
Rose is not free from some doubt. The discharge occurred
1 week following the filing of the second representation
petition.33 However, the evidence does not Justify drawing
the inference that Respondent had any knowledge Rose
was the individual who had contacted the Union to file the
petition. Moreover, it is clear that Martin was extremely
upset by the customer's complaint and the poor workman-
ship performed by Rose. Accordingly, I find in considera-
tion of all the pertinent facts, the General Counsel has not
sustained the ultimate burden of proof by substantial
evidence in the record as a whole that Rose was discharged
because of his union activity. I shall therefore recommend
dismissal of this allegation of the complaint.
G. The Discharge of John LaFazia
LaFazia was hired by Rothenberg and began his
32 Rose admitted that Martin told him about the customers complaint
He further testified that Martin also accused him of stabbing Martin in the
back and said "One day I was telling him the complaints of the men in the
shop and the next day he gets this thing in the mail from the Labor Board,
that the Union is seeking an election ." I credit Martin's version
.rs The petition was filed on February 7
ROCKLAND CHRYSLER PLYMOUTH
employment on January 31, 1973. He was discharged by
Parts Manager Stephen Velten on March 5. The General
Counsel alleges LaFazia was discharged because he
ignored Velten's threat of discharge on February 20 and
went to the Board that day. Respondent, on the other
hand, contends that LaFazia was discharged because of
too many absences during his short tenure of employment.
During the approximate month of his employment,
LaFazia was absent on four occasions. On February 7, he
was absent for one-half day to drive his wife to the doctor.
On February 9 he was out an entire day to attend a
funeral. On both occasions he notified Velten he would be
off. After his second absence, Rothenberg cautioned him
about being absent too often. The next time he took time
off was for several hours to go to the Board on February
20. On February 28, LaFazia mentioned to Rothenberg
that he was not feeling well and may be out the next day to
see the doctor if he did not feel any better. Rothenberg told
him he had better be in the next day. However LaFazia
was out ill the next 2 days, Thursday and Friday, March 1
and 2. When he returned to the store on Monday, March 5,
he saw another man working in the parts department and
he was told by Velten he had been discharged-that he
needed a man who was there every day. LaFazia testified
he had telephoned Velten and said he would be out sick
and Velten said okay. LaFazia's wife testified she called on
Friday and thought she spoke to Panas, the second
employee in the parts department and notified Panas her
husband was still ill. Velten denied getting the call on
Thursday from LaFazia and denied being told by Panas
that LaFazia's wife had called on Friday.34 However the
Respondent has contended LaFazia was discharged
because of too frequent absences and has not advanced as
a reason that LaFazia had not called in to report his
absences. In this connection, it is well to note that in the
termination interview between Velten and LaFazia on
March 5 nothing was said regarding calling in to report the
absence. Velten who himself first began his employment
with Respondent on January 15 credibly testified he had
interviewed an individual who had come to the store
looking for a job on either February 28 or March 1. On
Friday, March 2, after LaFazia had not appeared for a
second straight day, Velten contacted the applicant
(Pfeiffer) and had him report for work on Monday, March
5.
I find that LaFazia was discharged because of his
absences which Respondent regarded as too many in such
short period of employment. I have previously found that
LaFazia was not threatened with discharge on February
20. I have also taken into account the fact that the
employees who went to the Board on February 20 were not
chastised on their return nor were they disciplined for their
absence of several hours. Accordingly, I find that LaFazia
was not discharged for going to the Labor Board on
February 20. I shall therefore recommend this allegation of
the complaint be dismissed.
14 Panas was not called as a witness by either party.
3,, Craven's involuntary quitting is alleged to have also been caused by
H. The Alleged Discriminatory Treatment of
Francis Craven and Theodore Cioffi and Their
Alleged Constructive Discharges
1053
The General Counsel alleges that during March and
April 1973 Respondent made less favorable and less
lucrative job assignments to Craven and Cioffi cheated
them on time for work performed and constructively
discharged them on April 27 and May 4, 1973, respective-
ly 35
Craven was a class A skilled mechanic who had worked
for the Respondent for a little over 2 years when he quit on
April 27. He signed a union card at the December 6 union
meeting and was one of the three employees who attended
the meeting with Perretti on December 7, when the Union
requested recognition. In the latter part of January he
volunteered to Martin that he was no longer on the
employee committee and did not want to be bothered with
the Union. At no time thereafter did he tell Respondent he
again favored the Union. However, he appeared as the
union observer at the Board-conducted election on March
14, 1973.
Normally the employees take their annual vacations
during the summer months. In the latter part of April,
Craven told Rothenberg he wanted to take his vacation the
first 2 weeks of May. After clearing with Martin,
Rothenberg told Craven he could take the desired time off.
Craven received his vacation pay on Friday, April 27, and
left. He never reported back to the Respondent but,
instead, went to work the following Monday as service
manager at another automobile agency.
Cioffi was also a class A skilled mechanic. He had
previously worked for Respondent and had quit shortly
after Thanksgiving 1972. He resumed his employment with
Respondent on December 7 and signed a union card the
same day. On February 16, he was berated by Perretti
because he had planned on attending the Board hearing.
On May 4, 1973, without giving any reasons , he told
Rothenberg he was quitting. He had been offered a job by
Craven and on May 5, he went to work as a mechanic for
the same automobile agency as Craven who had left just
the week before.
The General Counsel contends that Respondent, for
discriminatory reasons, cheated Craven and Cioffi by not
giving them the proper credit for work performed and
assigned them less lucrative work than the other employ-
ees. The General Counsel takes the position that because
of the manner in which they were thus treated, the two
employees quit and such termination of their employment
should be construed to be unlawful constructive discharg-
es. The General Counsel further contends that with respect
to Craven, he was harassed by Rothenberg because of his
union interest and this was an additional element which
adds up to a constructive discharge.
Both Craven and Cioffi testified a principal reason for
their quitting was because Rothenberg was cheating them
on their time, more specifically, that he was not crediting
them for sufficient time for the work they performed.
Further discussion of this subject first requires an explana-
harassment by Rothenberg
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the incentive system, as operated by the Respon-
dent, and obviously not clearly understood by the
employees. Such explanation of the system was best
described by Rothenberg at the hearing. He testified that
the system is a form of initiative pay. In an 8-hour day, an
employee could produce and be paid for more than 8 hours
based upon his flat hourly rate. For about 65-70 percent of
the work performed by the mechanics, the time to be
credited to the mechanic for the particular operation
performed could be ascertained from the operations
manual . Thus, for example, if the manual calls for 2 hours
for a particular operation and the employee completed the
job in less time, he nevertheless would be credited for 2
hours. For the remaining operations, no time allowance is
given in the manual. This is termed nonoperational work.
Normally the employee is paid for the actual time he puts
in on such operation. The disagreements which usually
arose between the mechanics and the service manager were
in those instances where the mechanics performed mixed
operations, that is both book and nonoperations. Rothen-
berg gave as a hypothetical example a situation where there
may be three items to be performed, two shown in the
book and one a nonoperational item . The book called for 4
hours for the two book operations and the mechanic was
able to complete them in 2 hours but the third operation,
the nonoperational, may have taken the mechanic 3 hours.
He would be credited for only 4 hours total even though he
actually worked 5 hours on the three items. On the other
hand, if he had only a single operation to perform on a
car-a nonoperational-he would receive credit for the full
time it took him to complete the work.
Both Craven and Cioffi testified that on a number of
occasions they were credited with different times for
identical operations. Some company records of work
orders were introduced by the General Counsel to support
his theory that they were being cheated. To contradict their
claims, Rothenberg, in his testimony, offered explanations
of the alleged discrepancies. Both Craven and Cioffi
constantly complained to Rothenberg regarding the time
he credited to them. Occasionally, he agreed with their
claims and made the necessary adjustments. I have not
attempted or found it necessary to resolve the issue
whether or not in each of the examples offered by Craven
and Cioffi of the alleged "cheating," Rothenberg did in
fact knowingly not credit them with the proper time under
Respondent's incentive system. Craven testified that when
Diaz was still service manager, all the mechanics went to
see Martin and registered their complaints about being
cheated. Comparetto testified that employees were com-
plaining about cheating since the system was instituted in
November 1972. Cioffi said somebody was always com-
plaining. Even Oliveri testified that at the December 6
meeting the employees complained about being "short-
changed." I find it unnecessary to decide whether
Rothenberg cheated employees in the time to be credited
for work performed. For the record clearly discloses that
from the moment the incentive system was first instituted,
there were constant complaints from all the mechanics
about the time credited to them for particular operations.
This was evident even before any union interest arose. I
therefore find the evidence is insufficient to support a
finding that Rothenberg selectively cheated Craven and
Cioffi in the time to be credited for work they performed.
We now turn to the General Counsel's contention that in
March and April 1973, Rothenberg made less favorable
and less lucrative job assignments to Craven and Cioffi
because of their union interest.
Craven testified that about the last 2 months of his
employment his earnings were substantially less than
before and attributes this to receiving less favorable job
assignments . He testified that transmission work was a
choice assignment and whereas in the past he had averaged
one transmission job a week, he received only two such
assignments in the last 2 months of his employment.
Although this was advanced as a reason for his quitting,
there is no testimony from Craven he ever complained to
Rothenberg or Martin about the so-called lack of choice
jobs. Rothenberg testified credibly that he never intention-
ally gave Craven less lucrative work.
Cioffi also testified that dunng the last 2 months of his
employment (March-April 1973) his earnings diminished
and attributes this also to the job assignments. The record
discloses that in March he was told by Rothenberg that he
would have to take more of the less lucrative work and the
favorable work would have to be distributed more evenly
among the other mechamcs.36 He testified that another
mechanic. Rolik, was also getting less lucrative work. He
had no knowledge who was getting a greater share of the
choice assignments.
In an apparent attempt to support Craven and Cioffi,
Comparetto testified he noticed that Craven and Cioffi got
less favorable assignments during the last 2 months that he
worked there. Since Comparetto was terminated on
February 9, such assignments would necessarily have been
made during December 1972 and January 1973. I find his
testimony unconvincing.
Earnings statements of Craven and Cioffi were intro-
duced in evidence. The General Counsel contends that
their earnings declined during March and April compared
to the earnings of the two other class A mechanics. I do not
agree. The earnings of Moggio and Beebe, the other class
A mechanics, were also introduced into evidence by the
General Counsel. An examination of the weekly earnings
by Craven and Cioffi does reveal that during the March-
Apnl period their average earnings were less than for the
period from the first of the year through February. But it is
equally true that the average earnings of Moggio also
decreased during the same period in approximately the
same proportion.37 No meaningful comparison can be
made with that of Beebe since the record of his earnings
first began in mid-February.
I am not convinced that the evidence is sufficient to
support a finding that Respondent began giving less
lucrative assignments to Craven in March and April. It will
w Rothenberg admitted telling Cioffi he intended to spread the choice 37 During January-February. Craven. Cioffi. and Moggio earned $261,
assignments more equally He testified Cioffi had in the past been getting $261, and $294, respectively ; dunng March-April, $243, $238, and $271,
the greater share of choice assignments because he was a good mechanic respectively
and a high producer with very few comebacks.
ROCKLAND CHRYSLER PLYMOUTH 1055
be remembered that Craven had told Martin and Perretti
the latter part of January that he no longer was interested
in the Union . That he once again evidenced an interest in
the Union was shown when he appeared at the election on
March 14 as the union observer . But the alleged discrimi-
natory assignments were supposed to have been already
going on . The evidence does not support the contention
that his earnings diminished any more than the other class
A mechanics during March and April 1973. 1 am
convinced that Rothenberg did not , during that period,
knowingly , if at all , reduce the lucrative assignments to
Craven , let alone for discriminatory reasons.
As for Cioffi , admittedly Rothenberg told him in March
that the choice assignments would be divided more equally
among the other mechanics . But the evidence does not
support General Counsel 's contention that this was done
for discriminatory reasons. Cioffi himself stated another
mechanic, Rolik , also began getting what he called "lousy
assignments ." There is no contention that Rolik 's assign-
ments were made for discriminatory reasons. I credit
Rothenberg 's testimony that in the past Cioffi had been
getting more than his equitable share of lucrative assign-
ments because he was a very good mechanic and producer
and that the change in assignments was made to distribute
the work more equitably among the other mechanics. I
therefore find that General Counsel has failed to establish
Rothenberg made less favorable and less lucrative job
assignments to Craven and Cioffi because of their union
interest and shall recommend dismissal of this allegation in
the complaint.
There remains for consideration the alleged harassment
of Craven by Rothenberg which General Counsel has
advanced as an element in his theory of a constructive
discharge.
In early April, Craven and Cioffi went to Sales Manager
Bishop 's office and voiced their displeasure with the
manner in which Rothenberg had been crediting their time
for work they had been performing .38 In the midst of the
discussion , Rothenberg walked in and expressed his
resentment because they were complaining to Bishop
rather than taking the matter up with him . When Craven
said he was tired of being cheated, Rothenberg offered to
meet Craven outside after work , an obvious challenge to
settle their dispute by physical means . I fail to see that even
if this be called harassment, it would be the type of
harassment unlawful under the Act . That all the employees
were dissatisfied with Rothenberg's method of computing
time under the incentive system is clearly established in the
record . The incident in Bishop 's office was dust another
chapter in the constant dispute with Rothenberg and Diaz
before him . Moreover, 1 am not convinced that Rothen-
berg's challenge to fight was a motivating reason in
Craven's decision to quit . As he said the principal reason
he quit was because he felt he was constantly being
cheated . The incident in Bishop 's office was no more than
another unsuccessful challenge to Rothenberg's method of
computing time and Rothenberg's resentment towards
Craven was not motivated by any antiunion considera-
tions.
I have concluded that neither Craven nor Cioffi were
unlawfully cheated on the time for work performed and
were not unlawfully given less lucrative assignments, nor
was Craven unlawfully harassed by Rothenberg . Under the
circumstances, I am compelled to further find and
conclude that Craven and Cioffi voluntarily quit their
employment rather than having been constructively dis-
charged under the Act . Accordingly , I shall recommend
this allegation of the complaint be dismissed.
1. The Alleged Refusal to Bargain
The General Counsel in his complaint alleges that
Respondent since December 7, 1972, unlawfully refused to
recognize the Union in violation of Section 8(a)(5), relying
upon the Section 8(a)(l) and (3) violations also alleged in
the complaint.
Based upon my findings above, I have found that the
Union represented a majority of the employees in the
appropriate unit on December 7 when it demanded and
was refused recognition . Before any bargaining order may
be considered, it becomes necessary to determine whether
the election of March 14 should be set aside pursuant to
the objections filed by the Union . Only if the objections are
sustained and the election set aside may the remedy of a
bargaining order be considered and resolved .39 As more
fully described below I shall recommend to the Regional
Director that the objections to the election be sustained
and that the election be set aside.
I have found that in December 1972, during the
pendency of the earlier petition , Perretti threatened to
bring in Diaz as service manager , on February 16 Perretti
coercively threatened Cioffi with discharge, and on
February 19 Rothenberg interfered with Lawler 's right to
engage in union activity by attempting to remove him from
the bargaining unit . I have found that by each of these acts,
Respondent has interfered with , restrained, and coerced
employees in the exercise of their rights under Section 7 of
the Act and thereby violated Section 8 (aXl) of the Act.
Relying on Gissel,4° the General Counsel urges that the
bargaining order is warranted in view of Respondent's
alleged unlawful campaign to dissipate the Union's
majority status . This requires consideration of the exten-
siveness of Respondent 's unfair labor practices in order to
determine the possibility of erasing the effects of the unfair
labor practices and of ensuring a fair election by the use of
traditional remedies. The bulk of the allegations of the
complaint have not been sustained . I am not satisfied that
upon examining the totality of Respondent's unlawful
conduct described above , a bargaining order is warranted.
Those violations found are not so coercive as to require a
bargaining order to repair the unlawful effects or of such
an extent the application of traditional remedies would not
be able to ensure a fair election . Accordingly, I do not
sustain the Section 8 (a)(5) allegation and I reject the
request for a bargaining order.
38 General Manager Martin was not at the store that day.
3s Irving Air Chute Company, Inc., 149 NLRB 627
40 N.L R B. v. Gissel Packing Co , Inc, 395 U.S. 575 (1969)
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. IHE CHALLFNGES AND OBJECTIONS TO CONDLCT
AFFECIING 1HE RESULTS OF THE ELECTION
The tally of ballots showed eight votes cast for and eight
votes cast against the Union with three unresolved
challenged ballots. The Regional Director determined that
the challenges could best be determined in this proceeding.
The individuals whose ballots were challenged were
Richard O'Brien , James Rose, and Joseph Perrin.
Perrin was included in the charge in Case 2-CA-12887.
The complaint that issued in this case did not include any
allegation relating to his discharge nor at the time of the
hearing had any other disposition been made relating his
discharge. During the course of the hearing, on July 24, the
Regional Director dismissed that portion of the charge in
Case 2-CA-12887 relating to his discharge because of
insufficient evidence. (G.C. Exh. 1-ZZ.) Thereafter the
Union appealed to the General Counsel from the Regional
Director's dismissal. The General Counsel subsequently,
on August 16, denied the appeal and upheld the Regional
Director's refusal to issue complaint thereon. In accord-
ance with well-established precedent, I find that Perrin
was discharged for nondiscriminatory reasons and was not
an employee on the date of the election eligible to vote.
Although the record does not show the actual date of the
termination, he clearly had already been discharged before
the election.
I have elsewhere in this decision found that O'Brien and
Rose were discharged before the election, albeit not for
discriminatory reasons. Thus they were no longer employ-
ees on the date of the election and ineligible to vote.
I shall therefore recommend to the Regional Director
that the three challenged ballots be sustained.
Although not before me I feel compelled to make this
additional observation. I have elsewhere in this decision
found that LaFazia was discharged on March 5 but not for
discriminatory reasons. Nonetheless, an examination of a
copy of the Excelsior list apparently used at the election
and the initial list of challenged voters received in evidence
seems to indicate that LaFazia, although not an eligible
voter, cast a ballot which was not challenged.
The Petitioner-Charging Party stated he was relying only
on the related allegations in the complaint in support of his
objections. He introduced no additional evidence. As set
forth above, I have found during the critical period4l
Perretti unlawfully threatened Cioffi with discharge and
Lawler's change in job title constituted an unlawful
attempt to disenfranchise Lawler from his participation in
Section 7 activities. The effects of such conduct cannot be
evaluated on a computer. It is sufficient to conclude that
this conduct was reasonably calculated to inhibit the
employees in expressing what should have been their free
and untrammeled choice at the election. Such conduct is
sufficient to affect the results of the election which I
recommend should be set aside.
In accordance with applicable Board Rules and Regula-
tions, Case 2-RC-16053 is hereby severed and remanded
41 February 7, when the petition was filed to March 14 when the election
was held.
92 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
to the Regional Director for Region 2 for such action as he
deems appropriate.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Respondent described
in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Rockland Chrysler Plymouth , Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 259, United Automobile , Aerospace and
Agricultural Implement Workers of America , is a labor
organization within the meaning of Section 2(5) of the Act.
3. By threatening to bring in a supervisor who would be
tough with the employees if the Union was selected as the
bargaining representative , by threatening an employee with
discharge to discourage him from engaging in union
activity, and by changing the job title of an employee to
disenfranchise him from exercising his Section 7 rights,
Respondent has interfered with, restrained , and coerced its
employees in the exercise of their rights guaranteed in
Section 7 of the Act, and has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
4. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
5. The General Counsel has failed to establish by a
preponderance of the evidence the remaining allegations of
the complaint herein , and it will be recommended that said
complaint be, to that extent , dismissed.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
of the Act, I shall recommend that it cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER42
Respondent, Rockland Chrysler Plymouth, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employ-
ees, by threatening to impose more onerous working
conditions upon the employees if they select a union as the
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
ROCKLAND CHRYSLER PLYMOUTH
bargaining representative, by threatening employees with
discharge for engaging in activities on behalf of the Union,
or by changing the job titles of employees for the purpose
of disenfranchising them from exercising their Section 7
rights.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by lawful
agreements in accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at its place of business located at Nanuet,
Rockland County, New York, copies of the attached notice
marked "Appendix."43 Copies of said notice, on forms
provided by the Regional Director for Region 2, after
being duly signed by Respondent's authorized representa-
tive, shall be posted by the Respondent immediately upon
receipt thereof, and be maintained 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 Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not specifically
found herein.
43 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
1057
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to impose more onerous
working conditions on our employees if they select a
union as their bargaining representative.
WE WILL NOT threaten to discharge our employees
who exercise their rights under the National Labor
Relations Act.
WE WILL NOT in any like manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations,
to join or assist Local 259, United Automobile,
Aerospace and Agricultural Implement Workers of
America, or any other labor organization, to bargain
collectively through representatives of their own choos-
ing, and to engage in collective bargaining or other
mutual aid or protection, or to refrain from engaging in
any or all such activities, 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
National Labor Relations Act, as amended.
ROCKLAND CHRYSLER
PLYMOUTH, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 36th
Floor, Federal Building, 26 Federal Plaza, New York, New
York 10007, Telephone 212-264-0330.