Superior Rambler

National Labor Relations Board - Board Decisions

Jan 26, 1965

150 N.L.R.B. 1264 (N.L.R.B. 1965)

1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional Office, 4459 Fed-
eral Building , 1520 Market Street, St. Louis, Missouri, Telephone No. Main 2-4142,
if they have any questions concerning this notice or compliance with its provisions.
Anthony O. Grimaldi , d/b/a Superior Rambler and Gerald
Czapiewski , Leaun Harrelson , Robert Weiss , John E .' Burke,
Jr., and Local 376, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America . 'Cases
Nos. 7-CA-4440-1, 7-CA-4440-2, 7-CA-4440-3, 7-CA-4440-4,
and 7-CA-4440-5. January 26, 1965
DECISION AND ORDER
On June 18, 1964, Trial Examiner William Seagle issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged, in the consoli-
dated complaint, and recommending that the consolidated complaint
be dismissed in its entirety, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting brief, and the
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
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 General Counsel's exceptions and
brief, and the entire record in this proceeding, and finds merit in
certain of the General Counsel's exceptions. Accordingly, we adopt
the findings and conclusions of the Trial Examiner only insofar as
they are consistent with our Decision herein.
1. The Trial Examiner found that Sales Manager Lenzen was "at
most a very minor supervisory employee," and that his remarks 2 to
employees Harrelson and Weiss were mere predictions of what he
(Lenzen) thought Grimaldi might do upon learning about the
1 The General Counsel in his exceptions alleges that the Trial Examiner committed
error in receiving evidence relative to offers of reinstatement made to the discriminatees
by the Respondent. We do not agree . Inasmuch as this evidence has a bearing on the
remedy, and in no way prejudices the General Counsel's case, the Trial Examiner prop-
erly received it, and we so find.
a Lenzen, when informed by Harrelson and Weiss that the salesmen had signed union
authorization cards, stated: "You fellows are nuts for trying to do this. Grimaldi
won't stand for it, he'll never join the union . Once you fellows get this union smell on
you, you'll never get a job selling cars anywhere else again."
150 NLRB No. 119.
SUPERIOR RAMBLER 1265
Union. We do not' agree. The record shows, and Respondent ad-
mits, that Lenzen had authority to assign and direct the work of the
salesmen and effectively to recommend the hiring of salesmen. Fur-
ther, Lenzen approved sales contracts, determined the amount of the
sales commissions to be granted, and assigned work schedules for
the sales force. We find, therefore, that Lenzen is a supervisor
within the meaning of the Act, and his remarks to Harrelson and
Weiss, when viewed in the context of the various other violations by
the Respondent, violate Section 8(a) (1) of the Acts
2. On October 19, 1963, Grimaldi questioned garage employee
Smielewski about the Union. This incident occurred after Grimaldi
received the Union's telegram requesting recognition as the bargain-
ing representative of the garage and service employees and naming
Smielewski as one of the stewards in the unit. It is uncontroverted,
indeed Grimaldi admitted, that he told Smielewski that he would
close the doors before he would have a union in his garage. How-
ever, the Trial Examiner found that Grimaldi's statement was
merely an expression of anger caused by the fact that the showroom
windows had been broken the night before, and he attributed this
vandalism to the Union. We do not agree. Grimaldi's interroga-
tion of and threats to Smielewski constituted a clear violation of
Section 8 (a) (1) of the Act, and we so find .4
3. On October 15, 1963, Harrelson received authorization cards
from Petroff, the union business representative. All of the sales-
men, with the exception of the used-car' lot salesman,' signed the
cards and paid the initiation fee. On October 16, 1963, Harrelson
and Weiss delivered the cards and the money to Petroff. Shortly
thereafter, Harrelson, in the presence of Weiss, told Lenzen that the
men had joined the Union. It was then that Lenzen stated that
Grimaldi would never tolerate a unions That evening Grimaldi and
Lenzen had a conference, and Lenzen informed Grimaldi that the
salesmen "were acting a little funny" and "Harrelson was talking
union activities." It was during the course of this meeting that
Grimaldi decided to discharge employees Burke and Czapiewski for
alleged economic reasons.
The Trial Examiner found that there was no causal relationship
between the discharges of Czapiewski and. Burke and the signing of
the union cards the day before. We do not agree. Particularly
8 Economy Food Center, Inc., 142 NLRB 901; Rocky Mountain Natural Gas Company,
Inc., 140 NLRB 1191; Product Engineering and Manufacturing Corp., 133 NLRB 1375.
* Tinley Park Dairy Co ., d/b/a Country Lane Food Store, 142 NLRB 683 , 690, 694-695
5 Lawrence , the used-car salesman , worked at the Respondent 's used-car lot located
approximately a mile away from the dealership . Lawrence signed a union authorization
card on October 17, 1963, at' the time that Petroff signed up the garage and service
employees.
6 See footnote 2, supra.
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pertinent are the facts that the Respondent arrived at the decision
to lay off Czapiewski and Burke during the meeting where he was
informed that the men were engaged in union activities; the 1964
model cars upon which the Respondent was relying to boost his sales
record had only been on the market for approximately 2 weeks;
Respondent admittedly told Czapiewski on the evening of October 18,
1963, in substance, that the salesmen had been on their way to mak-
ing big money but had fouled themselves up.7 In these circum-
stances, and in view of the suddenness of the discharge of Czapiew-
ski and Burke shortly after the Respondent became aware* of the
advent of the Union, we find the reasons assigned for their dis-
charges to be pretextual, and that, by the layoffs of,Czapiewski and
Burke, the Respondent violated Section 8 (a) (3) and (1) of the Act.8
The Trial Examiner also found that the discharge of Weiss was
the result of an impulsive reaction by the Respondent when Weiss
traded automobiles with Harrelson the night before. We find, how-
ever, contrary to the Trial Examiner, that the reason assigned by
the Respondent for Weiss' discharge is likewise a pretext. Ad-
mittedly, Weiss drove the sports car assigned to Harrelson and
allowed Harrelson to use his Rambler demonstrator. It is to be
noted, however, that Weiss was one of the Respondent's better sales-
men; he was one of the chief adherents of the Union; and he was
discharged the morning after the Respondent had acquired knowl-
edge that the salesmen were engaging in union activities. The mere
presence of valid grounds for an employee's discharge does not legal-
ize it where "other circumstances reasonably indicate that the union
activity weighed more heavily in the decision to fire him than did
dissatisfaction with his performance." 9 In view of the foregoing,
and more particularly in view of the fact that Weiss was one of the
more active proponents of the Union, we find that the Respondent
discharged Weiss for his union activities. We conclude, therefore,
on the basis of all the evidence in the record, that the discharge of
Weiss was in violation of Section 8(a) (3) and (1) of the Act.
We are constrained to agree with the Trial Examiner that Har-
relson's discharge was not motivated by the Respondent's opposition
to his union activities. Although Harrelson was the chief union
advocate, the fact that he reported to work at 1 p.m. October 19,
1963, when he was scheduled to report at 9 a.m.; that he was visibly
7 The record is unclear as to whether Burke and Weiss were present during this con-
versation The Trial Examiner made no finding on this point
, but indicated that he
"believed" that the statement was made to Czapiewski alone. As we deem this state-
ment to be indicative of the Respondent 's antipathy toward unionization ,, we do not find
it necessary to determine whether the statement was made to Czapiewski alone or in the
presence of the other salesmen.
8 Tru-Line Metal Products Company , Inc, 138 NLRB 964.
B N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883 , 885 (C.A. 1 ) ;
Economy Food
Center, Inc., supra
SUPERIOR RAMBLER 1267
showing the effects of a night of heavy drinking when he did come
to work, and hence was in no condition to meet customers; and
finally, that he was not discharged when the other salesmen were
laid off even though the Respondent knew he was the chief union
adherent, support the Trial Examiner's conclusion that Harrelson
was discharged for justifiable cause.
4. We find, as did the Trial Examiner, a unit of new- and used-
car salesmen exclusive of the sales manager and a unit of all garage
and service employees exclusive of the service manager to be the
appropriate units herein. But, unlike the Trial Examiner, we find
that the used-car lot salesman should be included in the salesmen's
unit. It is to be noted that salesmen in the main showroom likewise
sell used cars in addition to new cars. Although the used-car lot
is approximately a mile away from the showroom, there is sufficient
community of interest and similarity of duties to warrant inclusion
of the used-car lot salesman in the salesmen's unit.
5. The record clearly shows that the Union had a majority of the
employees in each unit signed up at the time the telegrams were
sent on October 17, 1963, requesting recognition as the collective-
bargaining representative. We note that each of the telegrams
stated that the Union represented a majority of the employees in the
respective units and contained the following statement : "Demand
for recognition as bargaining agent is hereby made." Therefore,
contrary to the Trial Examiner, we deem the telegrams to be valid
requests for recognition by the Union.10
We also disagree with the Trial Examiner's finding that the Union
was not entitled to recognition as the collective-bargaining represent-
ative of the garage and service employees because of misrepresenta-
tions made to them concerning the effects of signing the union cards.
We note that each card contained on its face an authorization to
bargain on, behalf of the signer." Indeed, Smielewski testified that
he was told that he was authorizing the Union to bargain for him
when he signed the card, and that Petroff conveyed the same infor-
mation to other garage and service employees. In these circum-
stances and in view of the unlawful conduct found herein, we fund,
on ' the entire record, that the Respondent refused to recognize the
Union, not because it doubted the Union's representative status, but
because it was seeking to forestall collective bargaining with the
10 Unlike the Trial Examiner , we find that the Respondent had knowledge of the Union's
majority Lenzen was told by Harrelson that the salesmen had joined the Union, and
he so informed Grimaldi on the evening of October 16, 1963 Moreover, the garage and
service employees signed cards for the Union in the presence of the service manager on
October 17 , 1963. The parties stipulated that Francis , the service manager, assigned
and directed the work of the garage and service employees and, further , that he utilized
his independent judgment in so doing . Clearly, then, Francis is a supervisor within
the meaning of the Act, and we so find.
11 N.L.R B. v. Gene Hyde, d/b/a Hyde's Supermarket , 339 F 2d 568 (C.A. 9).
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union which represented a majority of the employees in two sepa-
rate appropriate units in order to gain time to dissipate the Union's
majority status.12 Accordingly, we find that the Respondent, on and
after October 18, 1963, refused to bargain in good faith with the
Union as the representative of its employees in appropriate units in
violation of Section 8(a) (5) and (1) of the Act.
We further find that by dealing directly with the garage and
service employees by changing their payday from Saturday to
Friday after having received a request for recognition and a demand
to bargain, the Respondent acted in derogation of the Union's status
as statutory bargaining representative, and, therefore, further vio-
lated Section 8(a) (5) and (1) of the Act.13
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
Having also found that the Respondent unlawfully laid off Gerald
Czapiewski, John E. Burke, Jr., and Robert Weiss on October 17,
1963, and thereby violated Section 8(a) (3) and (1) of the Act, we
shall order the Respondent to remedy this unlawful conduct. How-
ever, we find, as did the Trial Examiner, that the Respondent made
offers of reinstatement to the above employees,14 and that the offers
were rejected. We shall not, therefore, require the Respondent to
make new offers of reinstatement, but we shall order the Respondent
to make them whole for any loss of earnings they may have suffered
as a result of the discrimination' against them, by payment to each of
them of a sum of money equal to the amount each would have earned
from the date of the discrimination to the date of offer of reinstate-
ment, less net earnings during said periods to be computed on a quar-
terly basis in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289, and shall include the payment of
interest at the rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB 7,16.
We shall also order that the Respondent' preserve and, upon request,
make available to the Board or its agents, for examination and copy-
ing, all payroll records, social security payment records, personnel
records and reports, timecards, and all other records necessary to
analyze the amounts of backpay due.
"Joy Silk Milla, Inc. v. N.L R.B., 185 F. 2d 732 (C.A.D.C ), cert denied 341 U.S. 914.
13 Mooney Aircraft, Inc., 138 NLRB 1331
14 We find that the Respondent made valid offers of reinstatement by telephone on the
following dates: to Weiss on October 28, 1963 ; to Burke on November 13, 1963 ; and to
Czapiewski ,on November 30, 1963. These offers were confirmed by letters dated Decem-
ber 6 and 9, 1963.
SUPERIOR RAMBLER - 1269
CONCLUSIONS OF LAW
1. The Respondent, Anthony O. Grimaldi, d/b/a Superior Rambler,
is an employer within the meaning of Section 2(2) of the Act and is
engaged in commerce within the meaning of Section 2(6) and (7) of
the Act:
2. Local 376, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following constitute units appropriate for the purposes of
collective bargaining within Section 9(b) of the Act:
(a) All new and used automobile salesmen, including the used-car
lot salesman, but excluding the sales manager and supervisors as
defined in the Act.
(b) All garage and service employees excluding the service man-
ager and supervisors as defined in the Act.
4. At all times since October 18, 1963, Local 376, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, has been the exclusive representative of all the employees
in the aforesaid units for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, and other terms
and conditions of employment.
5. By refusing on October 18, 1963, and thereafter, to bargain with
the aforesaid labor organization, and by dealing directly with the
garage and service employees on October 18, 1963, concerning terms
and conditions of employment, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section
8(a) (5) and (1) of the Act.
6. By interrogating employees about their union activities, by
threatening employees with economic reprisals for engaging in activi-
ties on behalf of the Union, and by other unlawful conduct on and
after October 16, 1963, the Respondent interfered with, 'restrained,
and coerced his employees in the exercise of rights guaranteed by
Section 7 of the Act, and thereby engaged in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
7. By unlawfully discharging and discriminating against Gerald
Czapiewski, Robert Weiss, and John E. Burke, Jr., on October 17,
1963, the Respondent engaged in unfair labor practices within the
meaning of Section 8(a) (3) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
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
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, Anthony O. Grimaldi, d/b/a Superior Rambler, his
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating his employees concerning their union activities
in a manner violative of Section 8(a) (1) of the Act, threatening em-
ployees with closing his business because of their union activities, and
in any manner interfering with, restraining, or coercing employees
in the exercise of their rights under Section 7 of the Act.
(b) Discouraging membership in Local 376, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, by discriminatorily discharging
employees, or in any other manner discriminating against them in
regard to their hire or tenure of employment, or any other term or
condition of employment, except to the extent permitted by Section
8(a) (3) of the Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
(c) Refusing to recognize and to bargain collectively with Local
376, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive bargaining repre-
sentative of the salesmen employees, including the used-car lot sales-
man, but excluding the sales manager and supervisors as defined in
the Act, and as the exclusive bargaining representative of the garage
and service employees, excluding the service manager and supervisors
as defined in the Act.
(d) Changing any term or condition of employment without first
affording the above-named Union a reasonable opportunity to bar-
gain with respect thereto.
2. Take the following affirmative action necessary to effectuate the
policies of the Act:
(a) Make whole Gerald Czapiewski, Robert Weiss, and John E.
Burke, Jr., for any loss of earnings they may have suffered as a result
of the discrimination against them, in the manner and to the extent
set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to compute the amount of backpay
due under the terms of this Order.
(c) Upon request, bargain collectively with the above-named
Union as the exclusive bargaining representative of the Respond-
ent's employees in the units found appropriate with respect to rates
of pay, wages, hours of employment, and other terms and conditions
of employment, and, if an understanding is reached, embody such
understanding in a signed agreement.
SUPERIOR RAMBLER 1271
(d) Rescind, if requested by the above-named Union, any changes
in the terms and conditions of employment, of the employees in the
units found appropriate, made after October 17, 1963.
(e) Post at his place of business in Pontiac, Michigan, copies of
the attached notice marked "Appendix." 15 Copies of said notice,
to be furnished by the Regional Director for Region 7, shall, after
being duly signed by an authorized representative of the Respond-
ent, be posted by the Respondent immediately upon receipt thereof,
and be maintained by him for a period of 60 consecutive days there-
after, 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.
(f) Notify the Regional Director for Region 7, in writing, within
10 days from the date of this Order, what steps he has taken to
comply herewith.
15 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 Couit 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 discourage membership in' Local 376, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, by
laying off or discharging any of our employees, or in any man-
ner discriminating against them in regard to their hire or tenure
of employment, or any other term or condition of employment,
except to the extent permitted by Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL NOT interrogate employees concerning their union
activities on behalf of and intentions with respect to the above-
named or any other labor organization, in a manner constitut-
ing interference, restraint, or coercion violative of Section
8(a) (1) of the Act.
WE WILL NOT threaten our employees with closing our busi-
ness because of their adherence to the above-named or any other
labor organization.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT change any terms or conditions of employment
without first giving the above-named labor organizations a rea-
sonable opportunity to bargain with us concerning any proposed
change.
WE WILL make Gerald Czapiewski, Robert Weiss, and John
E. Burke, Jr., whole for any loss of earnings suffered by them
as a result of the discrimination against them.
WE WILL, upon request, bargain collectively with respect to
rates of pay, wages, hours of employment, and other terms and
conditions of, employment, with Local 376, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of our employees in the
appropriate units described below, and, if an understanding is
reached, embody such understanding in a signed agreement.
The appropriate units are :
All new and used automobile salesmen , including the used-
car lot salesman, but excluding the sales manager and super-
visors as defined in the Act.
All garage and service employees, excluding the service
manager and supervisors as defined in the Act.
WE WILL rescind, if requested by the above-named labor or-
ganization, any changes in the terms and conditions of employ-
ment of our employees made after October 17, 1963,
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named Union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8(a) (3) of the
Act, as amended.
ANTHONY O. GRIMALDI, D/B/A SUPERIOR RAMBLER,
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.
Employees may communicate directly with the Board 's Regional
Office, 500 Book Building, 1249 Washington Boulevard, Detroit,
Michigan, Telephone No. 963-9330, if they have any questions con-
cerning this notice or compliance with its provisions.
SUPERIOR RAMBLER 1273
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner William Seagle at Detroit , Michigan,
on February 24 and 25, 1963, on a consolidated complaint dated January 8, 1964,
charging the Respondent with violations of Section 8(a) (1), (3 ), and (5 ) of the Act.l
Upon completion of the taking of testimony , counsel for the General Counsel and
for the Respondent presented oral argument.
Upon the record so made, and based ,on my observation of the demeanor of the
witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent , Anthony O. Grimaldi , is an individual proprietor doing business
under the trade name and style of Superior Rambler.
At all material times, the Respondent has maintained his principal office and place
of business at 550 Oakland in the city of Pontiac, State of Michigan , where he has
engaged in the retail and nonretail sale, distribution , and servicing of new and used
automobiles . The Respondent is a franchised dealer of American Motors Corpora-
tion but also sells and services sports cars of foreign manufacture , in addition to
selling used cars . There is a used-car lot adjoining the Respondent 's dealership and
another used-car lot at a distance of approximately 1 mile therefrom.
During the 12 -month period ending October 4, 1963, which - is a representative
period , the Respondent , in the course and conduct of his business operations , provided
services and sold and distributed automobiles , parts, and accessories and other goods
and materials valued in excess of $ 500,000 . During the same period , the Respondent,
in the course and conduct of his business operations, purchased and caused to be
transported and delivered to his place of business at Pontiac , Michigan , automobiles,
parts, and accessories for automobiles , as well as other goods and materials , valued
in excess of $50 ,000, which goods and materials were transported in interstate com-
merce to his place of business in Pontiac , Michigan, from various points located out-
side the State of Michigan.
II. THE LABOR ORGANIZATION INVOLVED
Local 376, International Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America (hereinafter referred to as Local 376 , or simply as the Union),
is a labor organization that has sought to organize the respondent 's car salesmen, and
garage and service employees.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The factual findings
Anthony O. Grimaldi , who is 26 years old , started in the automobile business in
1960 on borrowed money . At first he was only in the used -car business but in 1962
he also began selling the foreign sports cars , and in October 1962 , he also obtained
the Rambler franchise . Until February 1963, he operated with two salesmen but
at the insistence of American Motors he hired two more salesmen, and this brought
the new salesmen at the dealership up to four. These four salesmen sold the sports
cars and the used cars, in addition to selling the new Ramblers . About a mile away
from Superior Rambler, there was a second used -car lot operated by Grimaldi and
at this lot he employed another salesman by the name of Al Lawrence who sold only
the used cars. In fact , the used-car business remained Grimaldi's primary business
even after the Rambler franchise had been obtained.2
At the time of the events that precipitated the present proceeding , Grimaldi
employed four new- and used -car salesmen at his dealership . Three of them had
'The charges In Cases Nos . 7-CA-4440(1), 7-CA-4440( 2), and 7-CA-4440( 3) were filed
on October 29, 1963, and in Cases Nos . 7-CA-4440( 4) and 7-CA-4440( 5) on December 12,
1963.
2 Grimaldi himself testified : "Used cars have always been my primary business "
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been hired in March 1963 when American Motors began pressing Grimaldi to realize
what is known in the trade as his sales potential. These three salesmen were Robert
L. Weiss, Gerald Czapiewski, and John E. Burke, Jr. Czapiewski lived in Dearborn,
Michigan-in fact, he had been a member of the Dearborn police force for over 6
years-and Burke in Keystone, Detroit, and one of Grimalidi's reasons for hiring
them was that he expected them to bring in some out-of-town business. Three or
four months after he had been hired, Czapiewski had suddenly left to take a job with
another Rambler dealer but he returned in September and was rehired, despite the
fact that he had been a difficult employee during his first period of employment 3
The fourth new- and used-car salesman at the dealership was Leann Harrelson, who
had been hired on September 16, 1963.
Grimaldi had had some doubts about hiring Harrelson. He had attended school
with Harrelson, and he had heard unfavorable rumors about him .4 Grimaldi also
knew that Harrelson is the son of the former president of Local 614 of the Teamsters.
However, Harrelson had previously worked for Robert Lenzen, Grimaldi's sales man-
ager, when the latter had worked for a Lincoln-Mercury dealer, and Lenzen had
strongly recommended Harrelson. Grimaldi decided, therefore, to overcome his
scruples and to hire Harrelson.
After the three salesmen were hired in March 1963, there appears to have been
some grumbling about working conditions, particularly the long hours on Saturday
nights, and some joking remarks appear also to have been made by the salesmen to
Grimaldi about bringing the Teamsters in. The salesmen also complained to Lenzen,
the sales manager, about working conditions but he told them that he could do
nothing about them. During this period there seems to have existed something that
approached an informal shop union.5 Apparently the salesmen proposed to Grimaldi
that they be allowed to pool their commissions, and share them equally. But Grimaldi,
who thought this would remove the incentive to individual effort, vetoed the idea.
On October 15, 1963, one Eddie Petroff, the secretary-treasurer and business agent
of Local 376, received a tip from a business agent of Local 614 of the Teamsters
that the new-car salesmen of Superior Rambler were interested in organizing and he
got in touch immediately with Harrelson by telephone. Petroff arranged to meet
Harrelson that very afternoon. They met between 2 and 3 p.m. at a bar called the
Sportsman's Lounge after Harrelson had completed his shift at Superior Rambler.
During this meeting Harrelson himself signed a membership application in Local 376,
and Petroff gave him three other cards. Harrelson returned to Superior Rambler the
same day, and obtained the signatures to these cards of Weiss, Czapiewski, and Burke.
Between 2 and 3 p.m. the next day, October 16, Harrelson, accompanied this time
by Weiss, again met Petroff and turned over to him the union membership application
cards. Although Harrelson was off for the remainder of the day, he returned with
Weiss to Superior Rambler between 4:30 and 5 p.m. and the two of them proceeded
to inform Lenzen that the salesmen had joined the Union. Lenzen's response to this
announcement was: "You fellows are nuts for trying to do this. Grimaldi won't
stand for it. He'll never join the union. Once you fellows get this union smell on
you, you'll never get a job selling cars anywhere else again." 6
Grimaldi testified, however, that Lenzen did not tell him immediately about his
conversation with Harrelson and Weiss, and that on Wednesday evening, October 16,
Lenzen merely mentioned that "the employees were acting a little funny,7 and that
he had talked to Harrelson and Harrelson was -talking union activities." Grimaldi
3 Czapiewski himself testified. "Tony and I were never on good terms" One of the
causes of the friction was that he frequently arrived at work later than the other sales-
men and another was that he refused to go and pick up cars-he did not consider this
to be part of a salesman's job. He also irritated Grimaldi by complaining about poor
business
a During his. cross-examination, Harrelson admitted to a conviction for assault and
battery.
As Burke testified: "This was something new, so we banded together more or less
We covered for each other. If one wanted to work later, or if one wanted to work
early, then, everyone would be covered. This was more or less a union we formed by
ourselves."
a Lenzen made the identical remark to Harrelson 2 days later when they were having
breakfast together at a restaurant across the way from Superior Rambler.
7 Grimaldi explained that what he meant by this was that "the salesmen were always
going out to dinner together ; they were always in the same office and so on" and he
also mentioned that "on that Wednesday morning they all came in late and they all came
in at the same time."
SUPERIOR RAMBLER 1275
further testified that it was not until after Lenzen had had breakfast with Harrelson
the following morning that Lenzen related to him that he had warned Harrelson
against having anything to do with a union because "it would be a mark on him and
it would be hard to get a job." Grimaldi also admitted that about noon on the same
day,8 he had talked to Harrelson in an effort to persuade the latter to drop the Union.
Harrelson had testified that in this conversation Grimaldi had offered him a contract
that would give him a guaranteed salary. Actually, however, Grimaldi had merely
attempted to point out to Harrelson that joining the Union would not get him a guar-
anteed salary, and Harrelson had replied: "I couldn't withdraw [from the Union] if
I wanted to." It is apparent that such a conversation would never have taken place
if Grimaldi had not known that Harrelson had joined the Union.
Grimaldi further testified that the same Wednesday evening he had a conference
with Lenzen and that he had then decided that because the new Ramblers, which had
come out October 5, were not selling very well, he would lay off Czapiewski and Burke
and keep Harrelson and Weiss, whom he regarded as the better salesmen .9 A sub-
sidiary reason for his decision, Grimaldi further testified, was the fact that Czapiewski
and Burke lived too far away from the dealership, and that the out-of-town business,
which he had hoped they would bring in, had proved disappointing.
Having reached this decision, Grimaldi testified, he accepted the suggestion of
Lenzen that Czapiewski and Burke should be notified that very night that they were
being laid off. According to Grimaldi, his reason for adopting the suggestion was
that the two salesmen could drive their demonstrators in the following morning, and
have their wives follow them in, so that they would have transportation home.
Grimaldi took it upon himself to call Czapiewski, while Lenzen agreed to call Burke.
However, Czapiewski was not at home when Grimaldi telephoned him. On Wed-
nesday and Friday night he always played ball, and he was playing ball that Wednes-
day night. When he returned home about midnight, his wife told him that Grimaldi
had called. But Grimaldi apparently had left no message, and, consequently,
Czapiewski did not learn of his termination until he reported to work the morning
of the next day.
For some unexplained reason, Lenzen delayed his call to Burke until about mid-
night but even then the latter was not at home. When he returned home about 12:30
a.m. and learned that Lenzen had called him so late, he decided to return his call,
and did so. Lenzen, who appears to have been addicted to watching the late, late
show on TV, was still up, and he came to the telephone and told Burke, as the latter
testified, that "he and Grimaldi had had a conversation that night and they had
decided that business was going down and that my termination of employment would
supposedly be the next morning because I lived too far away and business was slow."
When Czapiewski and Burke arrived at Superior Rambler the morning of Octo-
ber 17, Grimaldi was apparently having coffee in the restaurant across the street.
When he came into the showroom, he informed Czapiewski and Burke that they were
being laid off, and gave them his reasons for taking this action. The two salesmen then
cleaned out their desks, collected their personal belongings, and left the showroom.
They did not, however, leave the premises but remained on the sidewalk outside the
agency. They did so, apparently, because they had been told by Petroff that he
would be there that morning.10 After waiting for Petroff for awhile, they went and
had coffee, and took a walk around the block. When they returned to the agency,
Petroff had still not arrived but Weiss was standing on the sidewalk outside the agency.
He had just been discharged by Grimaldi.
The testimony with respect to the discharge of Weiss is conflicting in important
respects. Grimaldi gave two reasons for discharging Weiss. One reason was that he
had been late in coming in to work the morning of October 17, but the main reason
was that he had been specifically told to drive a Rambler as a demonstrator but that
when he came in to work that morning he was driving a sports car, a TR-4, which
had been assigned to Harrelson, and that he refused to explain why he was driving
the sports car.
The testimony of Harrelson and Weiss shows how Weiss came to be driving the
TR-4. They had had dinner the previous evening and effected an exchange of the
cars. In his own testimony, Weiss left the reason for his wanting to, effect the
exchange rather obscure. According to Weiss, he had some business that evening.
8 Grimaldi testified that he believed he talked to Harrelson on October 18, but it is
evident from the context of his testimony that the conversation occurred on October 17.
0In fact, Grimaldi had been discussing with Lenzen the layoff of Burke 3 weeks previous
to October 16
10 Grimaldi had offered them a ride to the bus station but, since they had to wait
for Petroff, they had declined the offer.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harrelson testified, however, that Weiss told him he wanted the TR-4 because he had
a customer who was interested in it. Weiss conceded that it was customary for a
salesman to be assigned a particular car as a demonstrator-this was undoubtedly the
custom 11-but sought to excuse his conduct in part on the ground that he had com-
plained the night before to Grimaldi that the Rambler he was told to drive did not
have kick panels to keep cold air from coming in. This was true but Grimaldi had
told him that the Rambler was the only car available. Actually, there can be little
doubt from the testimony of Weiss himself, as well as that of Grimaldi, that Weiss
had a marked fondness for driving sports cars. The sharpest conflict between the
testimony of Weiss and Grimaldi with respect to the former's discharge is whether
the conversation between them that led to it took place in the parking lot rather than
in the showroom. Weiss testified that Grimaldi said nothing to him while he was in
the showroom but that he followed him out to the parking lot when, about 9:20 or
9:30, he went out to the lot to see if there were any customers. Grimaldi testified,
however, that he started to question Weiss in the showroom but that when Weiss
would not answer him, and walked out into the lot, he followed him there. Weiss
testified also that as they were talking, a telegram was delivered. As this was undoubt-
edly the telegram from Petroff to Grimaldi that was being delivered, and this tele-
gram was delivered at 10:19 a.m., Weiss was mistaken in testifying that the
conversation leading to his discharge occurred between 9:20 and 9:30 a.m.
The telegram from Petroff to Grimaldi which was then delivered read as follows:
Local 376 Teamsters union represents majority of your auto salesmen. Demand
for recognition as bargaining agent is hereby made. Leaun Harrelson and Robert
Weiss are union stewards. Any acts of interference, coercion, or intimidation
against union members will be vigorously prosecuted by the union.
Petroff himself, accompanied'by his son, finally arrived at Superior Rambler in
the early afternoon of October 17 several hours after his telegram. It was probably
about 1 or 1:30 p.m.12 But Petroff never got to talk to Grimaldi that afternoon, As
Petroff arrived, Grimaldi rushed out of the showroom, entered his car, and drove off.
Petroff felt sure that Grimaldi was trying to avoid him. Thus, he testified:
And I saw Mr. Harrelson inside of the dealership and asked if Mr. Grimaldi
was there and he pointed to the man who had just rushed by me in the doorway
and who was getting into his car and he said, "There he is. He's leaving." So,
I turned around and called to him. I wanted to make sure to catch him to
talk to him. He heard me and turned around and saw me, but just ignored my
call and I called to him again. He heard me and he screeched the tires in the
driveway and sped out the driveway almost having a collision as he left the
driveway on the main street there in front of the dealership.
As has often been remarked, however, appearances are sometimes deceiving. It
seems that Grimaldi who had a large family-a wife and six children-owned a
farm, in addition to his residence, and he kept a pony there. The pony had been
kicked in the side and was in a critical condition. When Grimaldi rushed out of his
place of business, he was heading for his farm to meet the veterinarian who was to
attend the pony.
Not knowing where Grimaldi had gone, Petroff waited for about 15 or 20 minutes
for him to return. When he failed to do so, Petroff and his son decided that as long
as they were there they would go into the Superior Rambler service department and
sign up the garage and service employees. These consisted of four mechanics, three
porters, two bodymen,13 and a girl who sold or distributed parts. Within the space
of 30 or 45 minutes, Petroff and his son succeeded in obtaining applications for union
membership from 7 of the 10 service employees in the garage, these 7 consisting of
the 4 mechanics and the 3 porters. While Petroff was talking to the employees, who
were engaged at the time in their usual occupations,14 the three discharged salesmen
"I do not credit the testimony of Harrelson that "there was nothing you were
assigned to drive-this car or that car."
12 Petroff at first fixed the time of his arrival as "possibly 2:00 or 3:00 o'clock." At
a subsequent point in his testimony, however, he revised this time to about 1.30 p in.
Burke testified that he saw Petroff arrive between 1 and 2 p.m.
"These were known also as bump and paint men.
14 The solicitations took place in the presence of Michael Francis, the service manager,
who made no effort, apparently, to interfere with Petroff. When Petroff even asked
Francis to sign up, the latter merely explained to him that as service manager he could
not do so.
SUPERIOR RAMBLER 1277
were in and out of the service department, and when Petroff left, they accompanied
him to Grimaldi's used-car lot, where they signed up Al Lawrence , the used-car
salesman.
The success of Petroff 's lightning campaign in the service department is explained
to a considerable extent by the testimony, which I credit, of one of the garage
mechanics, Smielewski, who testified that Petroff induced him to sign up by telling
him that the card he would sign , which in bold type -was headed "APPLICATION
FOR MEMBERSHIP" "didn 't mean I was joining the union . It just meant that I
was giving them rights as the bargaining agent." Smielewski testified , moreover, that
Petroff made the same statement to John Kelly, another one of the garage mechanics.
Actually, Smielewski's own opinion of the Union was that "I didn't want it, because
I don't personally hold with the union. But. if everyone thought it was necessary that
we have a union in there, then I would probably go along with it. Either that, or I
would leave the job." The record also shows that, although Petroff had collected
initiation fees from the salesmen , he collected none from the service department
employees, and that, although he distributed Local 376 pins to the service department
employees, none of them ever wore them. After Petroff had left, Smielewski got Ed
Brooks, one of the porters who had been on an errand at the time of Petroff's visit,
to sign one of the union cards, and Smielewski made the same representation to
Brooks that Petroff had made to him. None of the service department employees,
including Smielewski, ever saw Petroff again after his visit on October 17 and,
although Smielewski was mentioned by Petroff in his telegram as a union steward,
Petroff never discussed with Smielewski his appointment as such,15 and Smielewski
had no knowledge that Petroff intended to appoint him as steward. Furthermore, it
seems that, on the very Friday of the week of Petroff's visit, when the employees,
who had long been dissatisfied with the fact that they received their weekly pay on
Saturday afternoon, decided to ask Grimaldi to change the payday to Friday, they
did not get in touch with Petroff at all but deputized Smielewski to ask Grimaldi to
make the change. Grimaldi acceded to the request.
Between 5 and 6 p.m. on the day of Petroff's visit, October 17, which would be
only several hours after he had signed up the service department employees, Petroff
dispatched another telegram to Grimaldi, and this telegram was delivered to the
latter at 6:24 p.m. The text of the telegram was the same as that which Petroff had
sent on behalf of the salesmen except that a majority was claimed on behalf of the
garage and service employees, and that two of these employees, Smielewski and
Clarence Witherspoon, one of the porters, were named as union stewards.
About 5:30 or 6:30 p.m. on Friday, October 18,16 Petroff arrived at Superior
Rambler again to see Grimaldi. He was met on the sidewalk by Czapiewski, Burke,
and Weiss, and the four of them entered the agency. This time Grimaldi was there,
and agreed to talk with Petroff but he objected to the presence of the three discharged
employees. Grimaldi agreed, finally, to talk to Petroff and Harrelson, and the three
discharged employees left the premises. Petroff then told Grimaldi that what he
wanted to discuss with him was the recognition of the Union as bargaining agent for
the new-car salesmen and the garage and service employees, and the reinstatement of
the three discharged employees. There is no doubt that Grimaldi rejected both of
Petroff's requests but each of them gave somewhat different accounts of what occurred
during the interview.
According to Petroff, the interview was hampered by the fact that Grimaldi kept
coming in and out of the office four or five times, and that on one occasion he came
back with Francis, the service manager, and declared that he wished to have the
latter participate in the interview. Petroff also testified that when he mentioned the
subject of recognition Grimaldi "became excited and started waiving his hands and
starting talking loud," so that he could hardly get a word in edgewise, and that he
declared that "he would never have a union; that he would close his place before he
had a union." In addition, Petroff testified that during one of Grimaldi's peregrina-
tions, he saw him stop and talk to Smielewski, and, walking up behind them, heard
Grimaldi say something that convinced him they were making an agreement of some
kind over his head, and that when he questioned Smielewski about it the latter's face
became "ashen-like" and he just refused to talk. During his cross-examination,
Petroff was asked whether Grimaldi had asked for any proof of representation, and
he first answered this question definitely in the negative but then declared that he
could not really remember. During his cross-examination, Petroff was also asked
whether Grimaldi, in the course of the discussion, had stated that he wished to con-
111 do not credit Petroff's testimony to the contrary.
16 Petroff testified to the earlier time, while Grimaldi testified to the latter time.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suit counsel , and Petroff answered the question by declaring : "If he said it, I don't
remember it because , as I said, the conversation was far from a calm conversation
on his part."
There is no doubt that Grimaldi was in an emotional state during the interview.
But there is equally no doubt that the reason he was unable to give Petroff his
undivided attention was that there were customers still at the agency whom he had
to take care of. This is not an unusual situation in automobile agencies even under
normal conditions . Grimaldi testified that he did tell Petroff that he would have to
consult counsel , and that he did ask for evidence of representation because, while he
thought that Petroff represented a majority of the employees , he was not sure. When
he asked for this evidence , Petroff, moreover , replied: "That 's for me to know and
for you to find out." I credit the testimony of Grimaldi as against that of Petroff.
Grimaldi also emphatically denied that he told Petroff that he would close his busi-
ness before he recognized the Union . Thus Grimaldi testified : "Never, at any time,
did I tell him' that I would not recognize or that I would close my business . I didn't
say that at all." I also credit this denial.
After Petroff left Grimaldi 's place of business the evening of October 18,17
Czapiewski , Burke, and Weiss waited around on the sidewalk in front of the Superior
Rambler premises . They were waiting around , apparently , until Harrelson should
come out at the,end of his day's work . But Harrelson was working until 9 p.m.
that night , and did not emerge from the agency until then . Thus, Czapiewski, Burke,
and Weiss remained on the sidewalk outside the agency from about 6 p.m . to about
9 p.m. and during this period of approximately 3 hours they kept needling Grimaldi
and bandying words with him. They also threatened to picket his place the next
day, and close his doors , and in the meantime they asked customers approaching the
agency not to go in because Grimaldi was nonunion . Weiss even grabbed the arm
of a customer by the ' name of John Kidd in an effort to prevent him from entering
the agency .18 Grimaldi was, naturally, annoyed by what was happening, and at
various times engaged in calling the salesmen names . He called Weiss, who has' a
very ruddy countenance , a "red face" ; he called Burke "two -faced"; and he called
Czapiewski "a big blow-hard ." Grimaldi applied this epithet to Czapiewski after
the latter had dared him to come out on the sidewalk and fight. As Czapiewski, an
ex-policeman , was a far bigger and more powerful man than Grimaldi, the latter
thought it prudent not to accept the challenge . Of greater significance perhaps than
Grimaldi's epithets is a remark made by him either to Czapiewski or to all three of
the terminated salesmen later in the evening . Czapiewski testified that the remark
was made to him but Harrelson testified that it was made to the three terminated
employees . As for the substance of the remark , which was couched in obscene ]an-
gauge, it was to the effect that either Czapiewski or the three salesmen had had a
good thing going or had been on the way to making big money but had fouled them-
selves up. Burke also testified that Grimaldi remarked to the three terminated sales-
men: "Look where the union 's got you now. It's got you out of a job and out in
the street and walking ." I do not credit Burke's testimony in this respect despite
the fact that Grimaldi was not specifically questioned about it. I believe that Burke's
Nice Nellie version of Grimaldi's remark, which is inconsistent with the testimony
of Czapiewski and Harrelson , was also edited to include a reference to the union.
The three salesmen finally departed about 9 p.m . after Harrelson came out of the
agency. However, about 4 a.m. the police called Grimaldi to tell him that the
windows of his showroom had been broken . This had been accomplished by throw-
ing rocks at them . No one was ever arrested for perpetrating this crime . Grimaldi
testified that a year or two previously some youths of 18 or 19 had gone around shoot-
ing pellet guns at all the showroom windows in the county , including his own, and
that these youths had been caught but that he knew of no other act of vandalism.
14 Harrelson misspoke , evidently , when he testified that the events about to be related
occurred the night of October 17 He thought that the events of October 17 occurred
on October 16, and it is apparent , therefore , that he would think that the events of
October 18 occurred on October 17. The testimony of Czapiewski is also confusing in
this respect, since he referred to both "Thursday " and "the next day " But it is clear
from Burke ' s testimony that the salesmen went back to Detroit the evening of October 17,
and returned the next day . Grimaldi's testimony shows clearly that the events to which
all the witnesses testified occurred the night of October 18
"Weiss testified that Kidd was a customer to «hom he had been trying to sell a
car prior to his discharge . Weiss admitted that lie told Kidd that lie had been fired
for union activities but denied grabbing his arm I do not credit this denial
SUPERIOR RAMBLER 1279
He also testified to his belief that the four salesmen were responsible for the broken
windows as follows:
Q. Mr. Grimaldi, do you know who broke your windows?
A. I don't know, but I have a good idea.
Q. You have no personal knowledge, do you?
A. No. I don't. The police got me out of bed at 4.00 in the morning and
told me that my showroom windows were broken and I didn't appreciate it.
I'd had no problems with anyone else. I'm sure these gentlemen were used to
going around to bars, and that's where they went after they got through there.
The only one of the four salesmen who was cross-examined about the broken
windows was Harrelson, who was the only one of them who was at the dealership
that Saturday. Harrelson, rather remarkably, testified that he was aware of an occur-
rence at the dealership involving windows but that he never saw any broken windows
on Saturday, on which day he had been discharged. Thus Harrelson testified:
Q. Are you aware of any unusual occurrance that happened at the dealership
along about this time involving windows?
A. Yes, I am.
Q. Are you aware that any windows were broken about this time?
A. No, sir.
Q. You never heard anything about that?
A. No, sir.
Q. You never saw any broken windows?
A. No, sir.
Q..And that was including the Saturday when you were discharged?
A. Yes, sir.
On the Saturday morning following his altercation with the salesmen, and the
breaking of the showroom windows, Grimaldi was in a rather overwrought state. In
the course of the morning, he walked into the service garage, and while there he
asked Smielewski whether he had received a copy of the Union's telegram in which
he had been designated a union steward. Smielewski told Grimaldi that he had
received a copy of the telegram on the day after it had been sent which would be on
October 18, but that he had learned of his union stewardship from the telegram
itself. Grimaldi then asked Smielewski what he thought of the Union, and the latter
gave Grimaldi his views, which, as already related, were antiunion. Asked whether
Grimaldi had said anything else on this occasion, Smielewski testified: "He said that
he didn't want the union in there and that he would close his doors, before he would
have a union in his garage." 19 Grimaldi admitted making such a remark to Smiel-
ewski but explained it as follows:
I recall, that it was on a Saturday morning that my windows were broken and I
was very upset and I was disturbed by the fact that these windows cost some-
thing like a hundred and fifty dollars, and I haven't got any insurance on them,
and the feeling I had about the union, I said, "I don't think we can get along
under these circumstances?" However, since this time I have been informed
differently, and I guess if this is what it will be, it will be.
That same Saturday, which was October 19, Grimaldi also finally discharged
Harrelson, the last of his four new- and used-car salesmen. In the morning of that
day, Harrelson telephoned to Lenzen at approximately 9:30 a in , told the latter that
he was not feeling well, and asked him whether he still wanted him to come in. Len-
zen, after checking with Grimaldi, instructed Harrelson to come in. According to the
testimony of Harrelson, although he was neatly dressed, and wearing a clean white
shirt and tie, and a suit, when he arrived "at approximately 10:30," he was told by
Lenzen: "You've been fired by Tony, and there's nothing more I can do about it";
he then went and asked Grimaldi what he was being fired for, and Grimaldi replied'
"You know what you're being fired for." Harrelson further testified that he was
given his paycheck about 10 minutes after his arrival. During his cross-examination,
Harrelson admitted that he had been drinking the night before.
'9 Sniielewsla testified that this conversation with Grimaldi occurred' either the day
that he received a copy of the Union's telegiani, or on the following day, which would
be Saturday, October 19 Grinialdi's own testmony shows that the conversation took
place on Saturday
7 7 5-69 2-6 5-vo l 15 0-8 2
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grimaldi's testimony, which I credit, is that Harrelson did not call Lenzen. that
Saturday morning until about 10:30 a.m. although he had stressed to him the previous
day the importance of his being there on Saturday, when they would be both short-
handed and busy, and that he did not come in, after calling Lenzen, until 1 p.m.
Grimaldi testified further that when Harrelson did finally report for work, wearing
slacks, he was in no condition to work, and that he smelled liquor on his breath.
I also credit this testimony.
After charges had been filed against Grimaldi, the Regional Office made the usual
attempts at adjustment, and Grimaldi, without admitting that he had been guilty of
any unfair labor practices , decided to make offers of reinstatement to the four new-
and used-car salesmen whom he had either laid off or discharged. These offers were
first made in telephone conversations between Grimaldi and each of them, and then
confirmed by him in letters to each of them. The letters were sent by ordinary mail,
and they were mailed personally by Grimaldi.
Burke testified that, although he received a Christmas card from Grimaldi, he
never received a letter from him indicating a willingness to have him return to work.
Burke admitted, however, that he had what he called a "personal" conversation with
Grimaldi in which the latter asked him how things were going with him but in
which Grimaldi never made any mention of a job.20
Czapiewski proved extraordinarily evasive when questioned about Grimaldi's offer
of reinstatement. After denying that Grimaldi had ever contacted him, he finally
admitted that he, Czapiewski, had contacted Grimaldi shortly before Christmas, about
a commission of $50 or so which he considered due him. Then, after denying that
there had been any discussion between him and Grimaldi about coming back to work,
he proceeded to admit that Grimaldi had said to him- "There's a position in here for
you and it's the only way you'll get your fifty some dollars commission." Czapiewski
was so evasive, indeed, that he would not even admit that he knew that he was talking
to Grimaldi in the telephone conversation) Like Burke, Czapiewski also denied that
he had ever received a letter from Grimaldi with regard to his return to work.
The letters, which are very similar, are in evidence. In each of them, except in
the case of the letter to Harrelson, Grimaldi referred to a previous telephone conver-
sation, which he was now confirming, and asked each of the addressees to return to his
former job as a salesman under the same working conditions as before he left. The
contacts between Grimaldi and his former salesmen may be summarized as follows:
Date of telephone Date of confirm-
Name of salesman : conversation ing letter
Burke_____________________________ November 13 December 9
Weiss_____________________________ October 28 December 9
Czapiewski-------------------------- November 30 December 6
Harrelson__________________________ December 16
By way of supplement to his letters, Grimaldi also testified with respect to his
telephone conversations with the four discharged salesmen, and his testimony was
that he had been told by them that they were working elsewhere.21 Grimaldi made
a particularly determined attempt to get Weiss back. He called him three or four
nights in a row, and the first call was made about a week after Weiss' discharge.
Grimaldi testified with respect to this call as follows:
I said that I had acted a little irrationally, and if he wanted to return, he was
welcome to come back. I would be glad to have him. As a matter of fact I
talked lengthly [sic] on the phone. I think my bill was something like two
dollars and fifty cents. He said at this particular time he would consider it,
but he was painting his home and that he didn't know what to do, and he said
that he was really afraid to come back. [Emphasis supplied.]
Grimaldi also testified that in a later call Weiss told Grimaldi that he had gone to
work for another Rambler dealer.
20 Burke could not fix the date of this conversation but he thought it occurred at a
time when a daughter was born to Grimaldi.
21 Grimaldi testified that Czaplewski, Burke, and Weiss told him that they had obtained
employment with other automobile dealers, and that at the time that he called Harrelson,
the latter told him that lie was working for an organization called the Pontiac Service
Bureau Harrelson denied that lie worked for this bureau but his father had a half
interest in it, and I have no doubt that he was at least there when Grimaldi called him
Harrelson also sent Grimaldi a registered letter but when it was opened by the latter
it proved to contain only a blank sheet of paper This mystery was never cleared up.
SUPERIOR RAMBLER 1281
B. Concluding findings
1. With respect to the 8(a)( I) allegations
This case looked extremely black for the Respondent after the first witness, Petroff,
had completed his testimony. Here was an employer who apparently seemed liter-
ally to have run away from any contact with the union representative and who, in
less than a week , had discharged every single one of his new- and used -car salesmen
who had signed union cards. Yet, as the testimony unfolded, the hue -of the case
began to change from black to a shade of gray that was too light to represent sub-
stantial evidence.
On the basis of the credited testimony,22 I cannot find that Grimaldi committed
any independent 8(a)(1) violations. Three such violations are charged in the com-
plaint; namely, (1) the unlawful interrogation of employees, (2) threats to close the
business, and (3) promises of economic benefits for refraining from engaging in
union activities.
The record shows no coercive interrogation. On the contrary, it is clear from the
testimony of Weiss and Harrelson that it was they who took the initiative in inform-
ing Lenzen that they had signed union cards. This voluntary disclosure could hardly
amount to interrogation on Lenzen's part.
As for Lenzen's remark to Harrelson and Weiss that what they had done was crazy
and that Grimaldi would never tolerate a union, it is obvious that this remark was
made by Lenzen before he had even had an opportunity to communicate what he had
learned to Grimaldi, and that he was merely predicting what he, himself, thought
Grimaldi would do. This must also have been quite obvious to Harrelson and Weiss.
Lenzen was at most a very minor supervisory employee whose range of discretion
was severely limited. Grimaldi so dominated the conduct of the business that Len-
zen's functions were primarily technical. In fact there are plain indications in the
record that the salesmen themselves regarded Lenzen as one of themselves, more or
less, and used him as an intermediary between themselves and Grimaldi. It also
seems to me that, while Grimaldi talked to Smielewski the Saturday morning after
the showroom windows had been broken, the talk also did not possess the hallmarks
of coercive interrogation. The conversation began with an inquiry from Grimaldi
about the Union's telegram, and Grimaldi's purpose was, apparently, to ascertain
whether Smielewski had agreed to' act as steward. This was not in itself an ille-
gitimate subject of inquiry. It was only after Smielewski had indicated that his
stewardship was something of a surprise to him that Grimaldi asked what he thought
of the Union. Once he had broached the subject of the Union, it is not difficult to
understand how Grimaldi came to declare that he would rather close his doors than
have anything to do with the Union. Angered by the events of the night before, and
the breaking of his showroom windows, of which he suspected the discharged sales-
men, he was merely giving expression to his anger. It was clearly not the expression
of an actual intention to close his business and it did not therefore constitute a real
threat.
I find no credible evidence that Grimaldi made any promise of benefits to any of
the salesmen to induce them to refrain from further union activity. While Grimaldi
did talk to Harrelson on October 17 to get the latter to drop the Union, he did not
offer him a contract or a guaranteed salary. It was rather a discussion of a possible
benefit which Harrelson thought that he might obtain as a result of his union activity
rather than a promise of benefit on Grimaldi's part.
2. With respect to the 8 ( a) (3) allegations
To put the termination of the new-car salesmen into proper perspective, it is neces-
sary to take into consideration a number of factors pertaining to the business of
Superior Rambler. It was, in the first place, a rather small automobile agency; it
had never employed more than four or, at the most, five salesmen at one time and
two of the four salesmen had been employed not because Grimaldi felt that he
needed them but because the district sales manager of American Motors felt that
Grimaldi should expand his sales force to achieve what he regarded as Grimaldi's
sales potential. In the second place, the number of salesmen employed by Grimaldi
did not represent the whole sales force, for Grimaldi himself, as well as Lenzen, also
acted as salesmen when circumstances required their utilization in this role. It would
12 Unless otherwise indicated, whenever the testimony has been conflicting, I have
credited the testimony of Grimaldi as against the testimony of the witnesses for the
General Counsel.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not be entirely accurate to say, therefore , that the termination of the four new-car
salesmen left Grimaldi without any sales force at all. In the third place , Grimaldi
was engaged in a multiplex business . he was not only a Rambler dealer but also
a sports car dealer and a used-car dealer.
So far as the layoff of Czapiewski and Burke is concerned , the record supports
Grimaldi's contention that the sales of the 1964 Rambler were at a disastrously low
point . From October 5, 1963, when the 1964 Ramblers were put on sale, to Octo-
ber 17 , 1963, exactly three new Ramblers were sold. In this respect , moreover , history
was merely repeating itself. In the months of October , November, and December,
1962, only 38 of the 1963 Ramblers had been sold, although a sales objective of 173
had been assigned to Grimaldi . It is hardly surprising , therefore , that on October 30,
1963 , Grimaldi should have written to American Motors to declare that he would
consider an offer to sell the American Motors portion of his business.
It is probably true that Grimaldi's business as a whole was prosperous in October
1963 despite the poor sales of the Ramblers . This is indicated by the fact that the
gross earnings of the salesmen were high in the week preceding their terminations.23
These earnings were derived , however , primarily from the sales of sports cars and
used cars. Whether or not Grimaldi should have sought to reduce the expenses of
an unprofitable segment of his business is a matter of judgment , and it is not for an
outsider to say that it was poor judgment to dispense with the services of two of the
salesmen even though the business as a whole may have been profitable . While the
salesmen worked on commissions , the employment of each salesman entailed a sub-
stantial expense,24 and if Grimaldi could get along with two salesmen rather than
four, it would be good business to lay off two of them.
I find nothing irrational in itself, therefore , in Grimaldi 's decision to lay off
Czapiewski and Burke , whom he regarded-rightly or wrongly-as less desirable
salesmen than Harrelson and Weiss . This being the case, the fact that they were
laid off the very day after they had signed union cards is not enough to demonstrate
that there was a casual relationship between the two events . It is to be doubted that
mere coincidence between events is ever sufficient to establish such a casual relation-
ship. The coincidence must seem particularly fortuitous in such a case as the present
in which the first event does not really satisfactorily explain the second. It was
Harrelson and Weiss rather than Czapiewski and Burke who had directly told Lenzen
that the salesmen had joined the Union, and there can be little doubt that Lenzen
knew that they were the ringleaders . If Lenzen told all that he knew to Grimaldi,
the latter must also have known this. Yet he laid off Czapiewski and Burke rather
than Harrelson and Weiss , who had taken the initiative in bringing in the Union.
This does not seem, then , a very logical action. To be sure , Grimaldi regarded
Harrelson and Weiss as his more valuable salesmen but , if he were really bent on
undermining the Union , he would have treated this as a wholly secondary considera-
tion. Moreover, the immediate consequence of the layoff of Czapiewski and Burke
was not to destroy the Union 's majority, for if there were two employees left in the
bargaining unit, and they were both members of the Union , Grimaldi would still
have to bargain with the Union . The most that Grimaldi could have hoped for at
this point, therefore , would be to intimidate Harrelson and Weiss , who had already
demonstrated , however, that they were the less timid of the four salesmen.
Apart from coincidence , there are only two items of evidence which , conceivably,
might indiate that in laying off Czapiewski and Burke Grimaldi harbored a discrim-
inatory motive. There is, first, the fact that Grimaldi decided to inform Czapiewski
and Burke concerning their layoffs the night of October 16 after they had completed
their day's work and left the agency . This looks suspicious . It might mean that
Grimaldi was so anxious to get rid of Czapiewski and Burke that he could not wait
until the following morning. But it could just as readily be interpreted as an act of
special consideration on Grimaldi 's part. Since Czapiewski and Burke lived a con-
siderable distance from their place of work , and the decision to lay them off had
been taken after they had left, there was every reason to get in touch with them to
spare them a useless and burdensome trip. This was the explanation actually given
by Grimaldi , and I accept it.
The second item of evidence is the remark made by Grimaldi either to Czapiewski
or all three of the terminated salesmen in the course of the events of the night of
October 18 . It is my belief that this remark was actually made to Czapiewski alone.
23 In this week Czapiewski earned $230 ; Burke , $194; Harrelson, $175, and Weiss; $165.
24 This expense included the cost of his insurance , the operation and servicing of his
demonstrator , and its depreciation.
SUPERIOR RAMBLER 1283
As the remark implies that he had done something to bring about his own downfall,
it could not refer to his layoff. Conceivably, it could refer to the fact that he had
joined the Union. But it could just as well refer to his conduct the night of Octo-
ber 18-to the fact that he had engaged in a continuing altercation with Grimaldi in
the course of which he had even threatened to fight his employer. What Grimaldi
could have been saying in effect was that in view of his conduct that night he would
never employ Czapiewski again. As Grimaldi's remark to Czapiewski was equivocal,
I cannot find that it is proof of a discriminatory intent on Grimaldi's part. I should
reach the same conclusion, moreover, even if I were to assume that Grimaldi addressed
the remark to all three of the discharged salesmen, since all three of them were
actively involved in the altercation with Grimaldi.
As for Weiss, he had not merely been laid off but discharged by Grimaldi. The
primary reason for his discharge was that he had driven a sports car against Grimaldi's
explicit instructions, and had then behaved in a surly manner when questioned
about it. It may well be that in discharging Weiss, Grimaldi behaved unreasonably,
especially when it is considered that he had just laid off two of his four salesmen, and
that he was, therefore, short-handed. In the case of another employer such unreason-
able conduct might justify an inference that he had an antiunion motivation. But
Grimaldi is a very emotional and excitable individual who tended to act in an
impulsive and unreasonable manner, and I believe that in discharging Weiss he
simply flew off the handle. After about a week had passed, and Grimaldi had had an
opportunity to calm down, he himself came to realize, apparently, that he had acted
too impulsively and sought to induce Weiss to return to work. It seems to me obvious
that he would not have taken this step if his real reason for firing Weiss had been
motivated by the latter's union activity. Moreover, the discharge of Weiss was not a
unique occurrence. A month or two before the discharge of Weiss, Grimaldi had
discharged a salesman by the name of Jerry Piazza. After the discharge of Weiss,
Grimaldi even discharged Lenzen because, as he put it, Lenzen had too many lady
friends. Then Grimaldi induced Lenzen to come back but their reconciliation lasted
no more than 3 days. This was typical conduct on Grimaldi's part.
Weiss' lateness on the morning of his discharge was a very minor factor in trigger-
ing this event. It was no more than the first element in Grimaldi's irritation with
Weiss. Despite Weiss' denials, I am convinced that he was at least 15 minutes late
on the morning of October 18. Weiss' testimony with respect to his arrival that
morning is plainly contradictory. Having testified that he reported for work at 9 a.m.
which was the starting time on the morning shift, Weiss proceeded to testify also that
he even came in a little earlier that morning; although he could not even remember
what the work schedule was that morning. In addition, after testifying without any
qualification that he was never late, he admitted that he might have been late once.
In fact, the salesmen were chronically late, particularly Burke and Czapiewski (the
latter differed from the others only in admitting it). Grimaldi was undoubtedly
correct in asserting that they all came in late the morning of October 17. As Burke
had already been informed that he was being laid off, there was no good reason for
his being on time that morning of all mornings, and if all the salesmen came in when
Burke did, it is safe to assume that they all came late. Weiss claimed to be on time
that morning no doubt because when he arrived Grimaldi was having coffee in the
restaurant across the street, and he believed that his tardiness would not be noticed.
But Grimaldi customarily arrived at 8:30 in the morning, and if the salesmen did
not arrive at 9 a.m. he' would know it himself. If not, someone else in the agency
could well have reported it to him.
Little comment with reference to the case of Harrelson would seem to be needed.
If it were not for the fact that Harrelson initiated the union activities, it would be
difficult to understand why Grimaldi should even have been charged with discharging
him because of these activities. Grimaldi was, clearly, justified in discharging an
employee whom he sorely needed on the day of his discharge, and who reported for
work on that day in such a condition that he was unfit for work. Moreover, since he
reported for work that day outrageously late-it was about 1 p.m.-it is not to be
wondered at that his final paycheck may already have been waiting for him.
Although I have reached the conclusion that it is not established by a preponder-
ance of the evidence that the termination of the four salesmen were discriminatory,
it is apparent that even if the evidence were sufficient "to stain the color of legal litmus
paper," there would be little need for remedial action. There would be no occasion
for reinstatement, since all four of the salesmen were offered reinstatement but
declined the offers, and their rights to backpay would be de minimis, since they
appear to have obtained other employment shortly after their terminations, and only
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
very brief periods of time elapsed between their terminations and the offers to rein-
state them. In view of some of the disturbing factors in the case, there would be
some doubt, moreover, that all of them were entitled to reinstatement in,any event.
3. With respect to the 8(a) (5) allegations
The complaint alleges that all the new and used automobile salesmen and all the
garage and service employees employed by the Respondent at his place of business
in Pontiac, Michigan, exclusive. of "other employees" and supervisors as defined in
the Act, constitute, respectively, units appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act. As new and used automobile
salesmen, and garage and service employees, constitute distinct categories of employ-
ees which are clearly identified by the description themselves, the exclusion of "other
employees" is only confusing. As there is only one supervisor in each category of
employees, the reference to supervisors is also confusing. It would seem better,
therefore, to describe the units as consisting, respectively, of all new and used auto-
mobile salesmen, exclusive of the sales manager, and of all garage and service
employees exclusive of the service manager.
As the sales department unit consists of employees who sell both new and used
cars, Lawrence, the salesman in Grimaldi's second used-car lot located at a distance
of about a mile from the Superior Rambler Agency, must be excluded 25
In his telegram to Grimaldi, Petroff requested recognition on behalf of the "auto
salesmen," which is an imprecise category. He did nothing in his testimony, more-
over, to clarify his intention. Thus, he testified that in his interview with Grimaldi
on October 18 he asked the latter- "Mr. Grimaldi, did you get my telegram demand-
ing recognition for the new car salesmen?" [Emphasis supplied.] In testifying about
signing up the garage and service employees, Petroff referred to the fact that "we had
signed up the new car salesmen.. . Apparently Petroff was unaware that the new-
car salesmen also sold used cars. Thus Petroff did not actually request recognition
on behalf of the unit employed described in the complaint.
Quite apart from this difficulty, which is probably not insurmountable, I am unable
to find that Grimaldi violated Section 8(a)(5) of the Act by declining the extend
recognition to the Union and to bargain collectively with it on and after October 18,
1963. By the time of his interview with Petroff he actually had working for him only
one of the four new- and used-car salesmen.
As I have found that Grimaldi did not commit any unfair labor practices prior to
Petroff's request for recognition, it cannot be said, moreover, that Grimaldi's rejection
of the request was ipso facto in bad faith, and based upon the rejection of the collective-
bargaining principle itself. As I have also found as a fact that Grimaldi demanded
proof of representation, and that Petroff rather contemptuously rejected the demand,
it also follows that the latter did not meet the obligation that ordinarily rests on a
union representative to offer proof of his majority by some means mutually agreeable,
such as the exhibition of the cards to a neutral third party. To be sure, the failure of
a union representative to offer such proof will not excuse an employer from the refusal
to accord recognition if in fact he knew that the union had achieved majority status 26
Grimaldi cannot be said, however, to have possessed such knowledge. As he frankly
testified, while he thought that the salesmen had signed up with the Union, he was not
sure. If he had accepted Petroff's claims, even before he had had an opportunity to
consult with counsel, he would have acted on the basis of double hearsay-on the
basis of whatever Lenzen had told him about what Harrelson and Weiss had told
Lenzen. The rather contemptuous attitude manifested by Petroff in his interview
with Grimaldi was not calculated to inspire confidence in his claims on Grimaldi's part.
Most of the same considerations are applicable to Petroff's request for recognition
on behalf of the garage and service employees. But there also are two additional
factors which bear upon Grimaldi's refusal to accord recognition. The first is that,
so far as the garage and service department employees are concerned he was without
the benefit even of double hearsay. The second is that Petroff made misrepresentation
to the garage and service department employees concerning the effect of their signing
2' As a matter of fact, the signing up of Lawrence was something of an afterthought
on Petroff's part. When Petroff sent his telegram to Grimaldi requesting recognition he
did not even know that Grimaldi operated a second used-car lot.
20 See, for instance, Johnnie's Poultry Co., 146 NLRB 770, involving the refusal of
an employer to bargain after interrogation of the employees by the employer had plainly
confirmed the union's majority. -
LOZANO ENTERPRISES 1285
the cards . While there is direct evidence of such misrepresentations in the case of only
several of the signatories , it is fair to assume that he must have made similar statements
to the others. It does not seem to me, moreover , that the misrepresentation is. excused
because it was only partial ; namely, that the membership application cards also con-
tained-in much smaller print-authorizations to bargain . Indeed, what the record
as a whole reveals about Petroff's methods is not such as to inspire confidence.
As I have found that the Union was not entitled to recognition on behalf of the
garage and service employees , there was no reason why Grimaldi should not have
changed the payday of these employees without consulting the Union . Indeed, the fact
that the employees , including those who had signed union membership application
cards, requested this adjustment directly is only another indication that they did not
regard Petroff as their representative . They behaved in general , moreover, as if they
had never signed union cards and as if they did not intend to support the Union.
CONCLUSIONS OF LAW
1. The Respondent , Anthony O. Grimaldi, d/b/a Superior Rambler, is an employer
engaged in commerce or in an industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 376, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent has not interfered with, restrained, or coerced his employees in
the exercise of the rights guaranteed to them in Section 7 of the Act, and he has not
committed , therefore , any unfair labor practices affecting commerce within the
meaning of Section 8(a) (1) of the Act.
4. By laying off and failing to reemploy Gerald Czapiewski and John Burke, Jr.,
and by discharging and refusing to reinstate Leaun Harrelson and Robert L. Weiss, the
Respondent has not discriminated with respect to their hire or tenure of employment,
and has not committed , therefore, any unfair labor practices affecting commerce within
the meaning of Section 8(a) (3) of the Act.
5. All new and used automobile salesmen, exclusive of the sales manager, and all
garage and service department employees, exclusive of the service manager, constitute,
respectively , units appropriate for the purpose of collective bargaining within the
meaning of Section 9(a) and (b) of the Act.
6. By failing and refusing to bargain with the Union as the exclusive representative
of the employees in the aforesaid appropriate units at all times since October 18, 1963,
and by unilaterally adjusting the payday of his employees, the Respondent has not
committed any unfair labor practices affecting commerce within the meaning of Sec-
tion 8(a) (5) of the Act.
RECOMMENDED ORDER
In view of my findings of fact and conclusions on law, I recommend that the Board
enter an order dismissing the complaint in its entirety.
Lozano Enterprises and Javier Martinez . Case No. 21-CA-5513.
January 26, 1965
DECISION AND ORDER
On September 30, 1964, Trial Examiner James R. Webster issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Decision.
The Trial Examiner also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended
dismissal thereof. Thereafter, Respondent filed exceptions and a
150 NLRB No. 123.