Vars Buick Corp.

National Labor Relations Board - Board Decisions

Jan 9, 1970

180 N.L.R.B. 626 (N.L.R.B. 1970)

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vars Buick Corp . and Local 868, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America Cases
29-CA-1480-1 and 29-CA-1480-2
January 9, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 27, 1969, Trial Examiner Thomas S.
Wilson issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner ' s Decision and a brief in support of its
exceptions . Respondent filed no exceptions to the
Trial Examiner ' s Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 exceptions , brief, and the
entire record in this case, and hereby adopts the
findings ,' conclusions , and recommendations of the
Trial Examiner , as modified herein.'
In early October 1968, as fully set forth by the
Trial Examiner, the Respondent discriminatorily
discharged Delaney soon after a request for
recognition had been made by the Union. After the
General Counsel had issued a complaint alleging
this discharge as violative of Section 8(a)(3) of the
Act, the Respondent, on February 5, 1968, sent a
telegram to Delaney offering him reinstatement.
Delaney accepted the offer and began to work again
for the Respondent. However, the week following
'The General Counsel excepts to the failure of the Trial Examiner to
find that certain statements allegedly made by supervisor Polakoff to
employee Delaney constituted violations of Section 8(aXl) of the Act. We
find it unnecessary to consider or pass upon the validity of the Trial
Examiner's findings in this regard since the remedy we have ordered would
remain the same.
,We agree with the Trial Examiner that the Respondent engaged in
extensive violations of the Act including unlawful interrogation and
discharging two employees because they joined the Union . Moreover, as
concluded by the Trial Examiner , Respondent may not destroy the very
conditions needed for a fair election , as we find occurred herein , and at the
same time successfully maintain that an election is the sole means for
determining the desires of the employees. Accordingly , as we concluded
that the Respondent ' s massive unfair labor practices made the holding of a
fair election unlikely , we shall provide , as did the Trial Examiner, for an
8(a)(5) bargaining order . N L R B. v. Gissel Packing Company. 395 U S
575
the employee's return there was a severe snow storm
which forced the Respondent to close its showroom
for a short period of time. Delaney testified, and his
testimony is uncontradicted, that he was informed
by Respondent' s sales manager , in a telephone
conversation on February 11, 1969, that when the
showroom reopened he would thereafter have to
work from 9 a.m. to 9 p.m. on weekdays and from
9 a.m. to 6 p.m. on Saturdays. He protested this
drastic change in his working hours and refused to
work such long hours. No valid business reasons
appear to justify this drastic increase in Delaney's
weekday working hours.
The Trial Examiner characterized Delaney's
refusal to report to work under such conditions as
an abandonment of his employment. However,
credible evidence in the record shows that the hours
Delaney was requested to work considerably
exceeded those normally worked by Delaney and the
Respondent's other car salesmen . Consequently, in
light of Respondent' s antiunion attitude, and
particularly its animus towards Delaney's earlier
organizational activities and desires for union
representation, which culminated in his precipitous
and discriminatory discharge, we are impelled to
conclude that this abnormal change in Delaney's
working hours had but one purpose, namely, that of
forcing Delaney to quit his employment.
Accordingly, we find that Delaney was
constructively discharged in violation of the Act on
February 11, 1969.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Vars Buick Corp., Town of Great Neck, County of
Nassau, State of New York, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees about their union
activities.
(b) Discharging or otherwise discriminating in
regard to the hire and tenure of employment or of
any term or condition of employment of its
employees because of their membership in and
activities on behalf of the Union herein or of any
other labor organization of their choice.
(c) Refusing to recognize and bargain in good
faith with the Union as the representative of all
employees in the appropriate bargaining unit which
is:
All automobile salesmen employees of
Respondent , employed at its place of business,
exclusive of office clerical employees, service
employees, parts department employees , guards,
watchmen , professional employees , and all
supervisors as defined in Section 2(11) of the Act.
(d) In any manner interfering with, restraining, or
coercing its employees in the exercise of the rights
180 NLRB No. 101
VARS BUICK CORP.
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to Ralph T. Delaney and Joe Peruso
immediate and unconditional reinstatement to their
former or substantially equivalent position, without
prejudice to their seniority or other rights and
privileges, and make each of them whole for any
loss of earnings they may have suffered by reason of
the discrimination against them in the manner set
forth in the section of the Trial Examiner's Decision
entitled "The Remedy," with interest thereon at 6
percent per annum.
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Upon request , recognize and bargain
collectively with Local 868, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the
exclusive representative of Respondent 's employees
in the appropriate unit found above with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment and, if an
understanding is reached , embody same in a written
signed agreement.
(d) 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 analyze the
amount of backpay due under the terms of this
Recommended Order.
(e) Post at its plant in Great Neck, New York,
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 29, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not
altered, defaced , or covered by any other material.
(f) Notify the Regional Director for Region 29, in
writing, within 10 days from the date of the receipt
of this Decision , what steps Respondent has taken
to comply herewith.
'In the event this 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 read "Posted pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
627
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT coercively interrogate our employees
about their union activities.
WE WILL NOT discharge or otherwise discriminate in
regard to the hire and tenure of employment or of any
term or condition of employment of our employees
because of your membership in and activities on behalf
of the Union herein or of any other labor organization
of your choice.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization; to form, join, or assist
labor organizations; to bargain collectively through a
bargaining agent chosen by our employees; to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection; or to
refrain from any such activities; except to the extent
that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section
8(a)(3) of the Act, as amended.
WE WILL offer Ralph T. Delaney and Joe Peruso
their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges , and we will pay them for any loss of pay
they may have suffered by reason of our discrimination
against them together with interest thereon at 6 percent
per annum.
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
WE WILL upon request, recognize and bargain
collectively with Local 868, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive representative of the
employees in the appropriate unit below with respect to
rates of pay, wages, hours of employment and other
terms and conditions of employment and, if an
agreement is reached, we will embody the same in a
written signed agreement . The appropriate unit is as
follows:
All automobile salesmen employees of Respondent,
employed at its place of business, exclusive of office
clerical employees, service employees, parts
department employees, guards, watchmen,
professional employees, and all supervisors as defined
in Section 2(11) of the Act.
Dated By
VARS BUICK CORP.
(Employer)
(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.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any questions concerning this notice or compliance
with its provisions , may be directed to the Board 's Office,
16 Court Street, Fourth Floor, Brooklyn, New York
11201, Telephone 212-596-3535.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon charges
duly filed on October 7 and October 9, 1968, by Local
868, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union or Charging Party, the General Counsel of the
National Labor Relations Board, herein referred to as the
General Counsel' and the Board, respectively, by the
Regional Director for Region 29, Brooklyn, New York,
issued its complaint dated November 22, 1968, against
Vars Buick Corp., herein referred to as the Respondent.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1), (3), and
(5) and 2(6) and (7) of the Labor Management Relations
Act, 1947, as amended, herein referred to as the Act.
Respondent duly filed an answer admitting certain
allegations of the complaint but denying the commission
of any unfair labor practices.
Pursuant to notice a hearing thereon was held before
me in Brooklyn, New York on February 18 and 19, 1968.
All parties appeared at the hearing, were represented by
counsel, and were afforded full opportunity to be heard, to
produce and cross-examine witnesses , and to introduce
evidence material and pertinent to the issues. At the
conclusion of the hearing, oral argument was had. A brief
was received from General Counsel on March 21, 1969.
Upon the entire record in the case and from my
observation of the witnesses, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I
therefore find:
Vars Buick Corp. is and has been at all times material
herein a corporation duly organized under, and existing by
virtue of, the laws of the State of New York. At all times
material herein Respondent has maintained its principal
office and place of business at 39 Cutter Mill Road, in the
Town of Great Neck, County of Nassau, State of New
York, where it is, and has been at all times material
herein, engaged in the retail sale and servicing of new and
used automobiles and related products. During the past
year, which period is representative of its annual
operations generally, Respondent, in the course and
conduct of its business operations, derived gross revenues
therefrom in excess of $500,000. Also during the past year
Respondent purchased and caused to be transported and
delivered to its place of business automobiles and parts
and other goods and materials valued in excess of $50,000,
of which goods and materials valued in excess of $50,000
were transported and delivered to its place of business in
interstate commerce directly from State of the United
States other than the State of New York.
'This term specifically includes the attorney appearing for the General
Counsel at the hearing.
Accordingly, I find that Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 868, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
Respondent's appears to be the usual automobiles sale
agency. It has a sales department consisting of a sales
manager and usually three salesmen ' who sold new Buicks
and used cars. It has a service department consisting of a
service manager, a parts clerk and a staff of 10-12
mechanics, make-ready men, porters, helpers, etc.
Naturally it also has a bookkeeping department of two
girls and a managerial staff consisting of Respondent Vars
and Vice President John W. Nance.
In 19683 with the New Car Opening Day for the new
1969 model Buicks set for September 26, the then sales
manager Fred P. Polakoff interviewed and hired Ralph T.
Delaney and Barry Cohen as salesmen on September 101
and subsequently on September 23 interviewed and hired
Joe Peruso as the third salesman.
During the month of September Delaney and Cohen
sold three automobiles, all of which were "split sales,"
i.e., the salesmen shared the commission thereon.
Apparently this was done by arrangement between the two
salesmen and the Respondent. Prior to his discharge on
October 7, Peruso was credited with one split sale on
September 23 (with Cohen), and one sale on September
27 on which he received the full commission. During the
month of October Cohen was credited with 17 sales
whereas Delaney who was discharged on October I was
credited with none. Prior to his discharge on October 7
the record shows three sales by Peruso on October 1,
October 3 and October 4, although as of the time of the
hearing Respondent still had two of these sales "under
investigation "
On the evening of September 27 during a discussion in
Respondent's showroom, Salesmen Delaney, Cohen and
Peruso decided that they needed union representation
because of certain working conditions as well as the fact
that Polakoff was customarily making comments
regarding having just interviewed their "replacements" as
salesmen resulting from ads for salesmen placed in New
York newspapers by Respondent which caused the three
salesmen to fear for their job security. Delaney thereupon
telephoned to Union Business Representative Donald
Bruckner from Respondent's showroom and made an
appointment to see him on September 30 about organizing
the salesmen.
'As the then sales manager Polakoff testified , "We've got a bad
background of sales stability " which was his way of expressing the fact
that the turnover among Respondent ' s salesmen was high.
'All dates herein are in the year 1968 unless otherwise noted
'The only previous salesman mentioned in this record was one Lawrence
who last appeared on Respondent 's payroll records as having been paid for
September I I when , according to Respondent, Lawrence went on a "leave
of absence" with his demonstrator The demonstrator was subsequently
returned but Lawrence never returned to work.
VARS BUICK CORP. 629
Also on Friday, September 27, according to the
testimony of Nance and Polakoff, they determined to
discharge Delaney because of his "attitude," because they
believed he had no "talent" as a salesman and because of
his nonproductivity.'
About 2 p.m. on Monday, September 30, Delaney met
Bruckner in front of a cafe located a few hundred feet
from Respondent's showroom. Bruckner there gave
Delaney four or five Local 868 authorization cards for the
salesmen to sign. Bruckner and Delaney were acquainted
as Delaney had been a shop steward under Bruckner at
another sales agency known as Raymond Ford. Both
Cohen and Peruso had previously been members of Local
868 but were not acquainted with Bruckner.
Delaney executed one of these unambiguous
authorization cards,' returned to the showroom and
handed one to Peruso. Peruso took his to the men's room
where he executed the same and then returned it executed
to Delaney. Delaney delivered the two executed cards to
Bruckner and made arrangements with him to deliver
Cohen's card later that afternoon to Bruckner after Cohen
had reported for work and executed the same. After
Cohen signed, that executed card was delivered to
Bruckner that same afternoon by Delaney.
Before noon' on October I the following telegram over
the name of the local union president was delivered to
Nance at his office:
THIS IS TO ADVISE YOU THAT WE REPRESENT THE
MAJORITY OF YOUR AUTOMOBILE SALESMEN EMPLOYEES
AND REQUEST AN EARLY APPOINTMENT FOR THE
PURPOSE OF NEGOTIATING A COLLECTIVE-BARGAINING
AGREEMENT.
Nance immediately showed the telegram to Polakoff and
discussed the matter with him. However no answer to the
above telegram was ever sent by Respondent.
Although there is a conflict in the evidence as to just
when and under what circumstances Polakoff learned that
all the Respondent ' s salesmen had signed union
authorization cards for the Union, Polakoff admitted that
by the evening of October I each of the three salesmen
had informed him that he had signed such an
authorization card.
Peruso credibly testified that about noon on October I
Polakoff inquired of him if he, Peruso, knew anything
about the Union and that Peruso gave Polakoff an
affirmative answer whereupon Polakoff stated that he was
not going to say "anything more to him about the Union
at this time." Later that afternoon Polakoff informed
Peruso that he was going to discharge Delaney, a
statement which Peruso passed on to Delaney.
That afternoon sometime between 4:30 and 6 p.m.
Polakoff called Delaney into an office, asked if he had
signed a union authorization card and , upon receiving an
'This alleged decision to discharge Delaney at this alleged meeting on
September 27 appears somewhat dubious in this record because no overt
action was taken thereon until the evening of October I and because
Nance and Polakoff each claimed during his testimony that he individually
made the determination to discharge Delaney at the time of his discharge
on October 1.
'These cards read in pertinent part as follows. "I the undersigned , hereby
apply for admission to membership in Local 868 of the International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America , and voluntarily choose and designate it as my representative for
purposes of collective bargaining , hereby revoking any contrary
designation . If admitted to membership, I agree to abide by the
Constitution of the International as well as the Local Constitution and
Bylaws."
'Western Union reported the delivery as of 11 : 15 a.m. that day.
affirmative response, inquired if the other two salesmen
had also signed for the Union, again receiving an
affirmative response. Polakoff thereupon told Delaney
that he was discharged. Delaney threatened to call the
other salesmen out on strike because Polakoff could not
fire him as he was a member of the Union.
Delaney left the premises and telephoned the Union
from the cafe.
Polakoff then interrupted Peruso while in the midst of a
sale with a customer to inquire if Peruso had signed a
card and would continue to work. When Peruso said yes
to both questions, Polakoff told him to continue with the
sale.
Delaney returned to the showroom and told Polakoff
that the Union representative would be down to the
showroom on Monday. Polakoff ordered Delaney off the
premises.
Polakoff promptly telephoned to Cohen and inquired
why Cohen had not told Polakoff that he, Cohen, was
thinking of joining the Union. Apparently as a result of
this telephone call Cohen returned to the showroom and
assured Polakoff that he would quit his employment if
Polakoff thought that Cohen was attempting to hurt the
Respondent by joining the Union.'
During the next few days Polakoff assured Peruso that
he had not discharged Delaney because of the Union but
because he could not sell automobiles. Polakoff also made
the statement that no union could make him keep a man
who could not sell automobiles. Polakoff also stated that,
union or no union, nobody could live on $62 a week' and
that no union could sell automobiles for a salesman.
On October 3 a telephone call was made to one Charlie
Hale at Raymond Ford. During or after this telephone
call Polakoff stated that "Charlie" had informed Polakoff
during the conversation that Delaney had been "a part of
the Union organization" at that agency and that, if
Polakoff had phoned Charlie before hiring Delaney,
Charlie would have told him to "throw away the key."
During this same period of time Polakoff informed
Peruso that he, Polakoff, thought that the Union had
"planted" Delaney in Respondent's agency.
About 10:30 a.m. on October 4 Bruckner and Delaney
appeared at Respondent's showroom. After Polakoff had
refused to hold any discussion in the presence of Delaney,
Bruckner had a conference with Nance and Polakoff in a
private office which Bruckner opened by asking if Nance
was an officer of the Respondent and reminding him that
the Union had sent Respondent a telegram but had
received no answer thereto. Nance responded, "Well, we
don't have to talk to you until you're the legal
representative of the employees. And I see that you filed a
petition." Nance added that there was "nothing to discuss
until the election was held" but that Respondent would be
glad to negotiate if the Union won the election. Bruckner
objected that there was no need for an election as
Polakoff had already ascertained that all the salesmen had
signed up for the Union and requested confirmation of
that statement from Polakoff which Polakoff gave.
Bruckner, who did not have the signed Union
authorization cards with him at the time as they had been
'In his testimony Polakoff attempted to explain his telephone call to
Cohen on the grounds either that he wanted to know if Cohen would go
out on strike because of Delaney's discharge or in order to get Cohen to
the showroom in order to cover the floor in the absence of Delaney.
'Salesmen at this time were being paid $85 per week less a $15 per week
charge for the use of a company demonstrator . Although no one attempted
to explain the mathematics involved, the significance of the admitted
remark is clear.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forwarded to the Board along with the representation
petition, stated that he was prepared to furnish proof of
the Union's majority as all Respondent had to do was to
inquire of the three salesmen then in the showroom.
Bruckner then accused Respondent of discharging Delaney
for his union activities. But this Nance denied claiming
that Delaney refused to work nights and, in addition, had
not worked Opening Day. As Bruckner and Polakoff left
this unsuccessful meeting together, Bruckner asked the
three salesmen then in the showroom if Polakoff had
asked each of them if they had signed with the Union and
received an affirmation from each in Polakoff's presence.
Bruckner then left the premises with Delaney.
During this week Polakoff told Peruso that, "If you
couldn' t sell cars , the Union couldn't do anything for
you," and that "Union or no union, if you can't sell cars,
you can't stay at Vars."
On October 7 Polakoff came up to Peruso in the office
in the back of the showroom, sat down and told Peruso
that he had to let Peruso go. When asked "why,"
Polakoff told Peruso that he spent too much time with the
customers and did not sell enough cars. Polakoff assured
Peruso that "the reason I'm letting you go is not because
of the Union." Thus was Peruso discharged.
On Feburary 5, 1969, both Delaney and Peruso
received identical telegrams over the name of Nance
reading as follows:
WE OFFER UNCONDITIONAL REINSTATEMENT TO FORMER
POSITION . REPORT TO WORK IMMEDIATELY.
Both men reported as requested. Peruso was still
employed as of the date of the hearing.
On the other hand Delaney reported for work, worked
until the end of the week, was unable to work the
following Monday or Tuesday because of a snow storm
and on Wednesday was informed by the new Sales
Manager, Al Valleur, that Delaney was to work thereafter
from 9 a.m. to 9 p.m. on weekdays and from 9 a.m. to 6
p.m. on Saturdays.'• Delaney refused to work such hours
and so abandoned his employment because of that.
B. Conclusions
1. The discharges
Apparently in preparation for the new 1969 line of
Buicks on September 26, Polakoff hired Delaney and
Cohen as salesmen on September 10.
On September l l Salesman Lawrence went on "leave
of absence" from which he was never to return.
On September 23 Peruso was employed as a salesman
by Polakoff thus raising his sales force to the customary
three.
After consultation among themselves on September 27,
all three salesmen voluntarily executed authorization cards
on behalf of the Union on September 30 under the
leadership of Delaney who delivered those executed cards
to the Union that same afternoon.
Supposedly Nance and Polakoff decided to discharge
Delaney that same day.
By telegram dated October 1 and delivered to
Respondent at 11:15 a.m. that day the Union notified
Respondent that it represented a majority of its salesmen
and requested negotiations. Respondent never answered
this wire.
'•Valleur did not testify so this testimony remained uncontradicted in the
record.
Soon after the delivery of the telegram Polakoff
inquired of Salesman Peruso as to what he knew about
the Union.
At 4:30 or 6 p.m. that same day Polakoff discharged
Delaney and then phoned Cohen and asked why Cohen
had not let him know that Cohen was thinking of joining
a union.
Even in a company not noted for the "stability" of its
salesmen employment, the timing here indicates that
Respondent was reacting in a not unfamiliar pattern to
notice to it of the unexpected involvement of its employees
with a union. The prompt discharge of Delaney in the
middle of a pay period after inquiry as to the employees'
union activity indicates Respondent's desire to be rid of an
active union advocate.
Then on October 4 the Union requested bargaining but
was rebuffed with the argument that the Respondent "did
not have to talk to you until you're the legal
representatives of the employees" or, as Nance more
clearly put it, that there was "nothing to discuss until the
election was held." Respondent even rejected the Union
offer to prove its majority representation by inquiry of the
three men directly involved who were then right outside
the door of the meeting room even though prior to that
time Respondent through Polakoff knew that all three
union salesmen had authorized the Union to bargain on
their behalf.
And once again in the middle of a pay period
Respondent on October 7 discharged Peruso thereby
successfully reducing the appropriate unit to single
employee which, under long existing Board precedent,
does not constitute an appropriate bargaining unit.
"Around" October 7 Respondent employed a salesman
named Sobel who had not signed a union authorization
card, thus increasing its sales force to two, one of whom
Respondent knew had signed an authorization card and
one who had not so that there could be no majority
representative. Thus Respondent successfully eliminated
the Union as the majority representative of Respondent's
employees in an appropriate unit of salesmen.
Thus once again the timing and the result strongly
suggest that the move against Peruso resulted from
Respondent's reaction to the attempted unionization of its
sales force. In each instance it was precipitous action on
the part of Respondent in the middle of pay periods. In
addition this precipitous elimination of unionized salesmen
occurred simultaneously with the Opening Day for the
1969 model of Buicks, a time of high sales when an
agency ordinarily would prefer not to be caught without
salesmen to handle the anticipated rush of customers. Yet
at this very time Respondent was eliminating known
unionized salesmen with no replacement in sight. Such
elimination of salesmen at such a.time must have been
caused by a compelling reason. The only discernible
reason in this record for such actions was the unexpected
unionization of the three salesmen.
However Respondent advanced certain reasons other
than union organization to attempt to explain the
discharges.
One contention made by Respondent was no less than
amazing , to wit, Polakoff was not a supervisor within the
meaning of the Act and, therefore, Respondent was not
responsible for his acts. According to Nance, Polakoff
was a mere "conduit" without supervisory authority. This
contention merits little attention in view of the fact that
Polakoff hired and fired both salesmen here involved. He
was Respondent's sales manager receiving a salary almost
quadruple to that of the ordinary salesman plus a 5
VARS BUICK CORP.
percent "override" of the profits of the business. He
okayed all the deals made by the salesmen . In fact he was
the authority in the sales department . Polakoff admitted
that he even went beyond the bounds of his sales
department jurisdiction by exercising some authority in
the service department through the service department
manager . Polakoff was , as Respondent ' s counsel expressed
it, an "expander ." The fact is that he was Respondent in
the sales department and he exercised all Respondent's
authority there . If, perchance , he was only a "conduit,"
nobody but he and Nance recognized it. On this conflict
between Nance and Polakoff the facts force me to agree
with Polakoff and find that Polakoff was a supervisor
within the meaning of the Act.
In this connection it is interesting to note that Polakoff
and Nance each individually claimed to have made the
decisions to discharge Delaney and Peruso . Nance and
Polakoff agreed that they met about September 27 and
decided to discharge Delaney . If so, there was no overt
evidence of any such decision until the time of the
discharge by Polakoff on October 1. The only overt moves
in either of these discharges were made by Polakoff--not
Nance . Whatever part Nance may have played in these
discharges was played far behind the scenes . Perhaps it
was only coincidence that this alleged decision of
September 27 by Respondent happened to coincide with
Delaney ' s leadership in securing the union authorization
cards and in leading the union organizational drive on that
same September 27. Perhaps it was only coincidence that
Delaney was discharged on the very day Respondent
discovered that that organizational drive had been
successful.
This raises the second sharp conflict between the
testimony of Polakoff and that given by Nance . Polakoff
testified that he discharged Delaney about 4:30 p.m.
without knowledge of the Union ' s telegram which had
been delivered to Nance about 11:15 a.m. that same day.
This is possible . However Nance testified that
"immediately" upon the receipt of the Union 's telegram,
he showed Polakoff the telegram and discussed the claim
raised thereby with him . This is probable . In fact the
chance that , after the receipt of such a claim of
representation of its salesmen , the managing agent of such
concern would not call in his sales department manager to
discuss the matter for a period of at least 4 1/2 hours
would , upon probabilities , appear to be virtually nil. So,
on this conflict , I must credit Nance--even without the
corroboration thereof by Peruso.
Hence whoever , Polakoff or Nance , made the decision
to discharge Delaney did so with full knowledge of
Delaney' s union affiliation even if it were true that
Polakoff was merely a "conduit."
Both Nance and Polakoff individually claimed that he
had decided to discharge Delaney ( I) because of his
"attitude ," (2) his lack of "talent" as a salesman , and (3)
his lack of productiveness . The first two of the above
reasons are purely subjective and thus hard to refute or
discuss . The third falls in a different category . According
to Respondent , Cohen was a productive salesman whereas
Delaney was unproductive. Yet the figures , as of the time
of discharge , October 1 , show three split sales for the
month for each . The only difference between the sales
record between these two was that Cohen enjoyed a split
sale with Peruso on a sale made on Peruso 's first day of
employment , September 23. Thus it would appear that
Cohen ' s extra split sale with Peruso assumed rather
631
inordinate importance in the eyes of Respondent on the
question of the difference of productiveness between the
two here involved. It is, of course, possible that Cohen's
statement on the evening of October 1 after the discharge
of Delaney that he would rather quit than hurt
Respondent with his union authorization card may have
well played a part in the Respondent's determination. In
any event Respondent' s claim against Delaney is far from
convincing . Even assuming Delaney's lack of talent as a
salesman and his poor attitude, this assumption does not
negate the fact that Respondent's knowledge of the
successful union organization of the three salesmen
triggered the discharge of Delaney as of the date of its
occurrence. This was corroborated by Polakoff's claim
that Delaney was a Union "plant." Accordingly I am
convinced and, therefore, find that Respondent discharged
Ralph Delaney on October l because of his known
membership and activities on behalf of the Union in
violation of Section 8(a)(3) and (1) of the Act.
As for Peruso, Respondent claimed that, while Peruso
had some talent as a salesman , Respondent could not
afford to spend the time training him as a salesman as
that would be too costly. This, of course, presupposes that
with customers flocking into the showroom eager to buy
the new 1969 Buicks no salesman was better than one
requiring some training . In the situation facing
Respondent at this particular time this assumption hardly
appears valid. Then, according to both Nance and
Polakoff, Peruso "took too much time with customers"
and was not productive. Respondent's records show that,
in addition to a split sale on his first day of employment
and another on September 27, Peruso was the salesman of
record on three sales in the first seven days of October,
even though as of the time of the hearing Respondent was
still "investigating" two of these sales for some reason
undisclosed in this record but which may have had to do
with the fact that there had been a strike at the Buick
factory at this time so that some October sales could not
be delivered until sometime in January 1969.
Cohen, the productive salesman , sold 17 cars during the
month of October. However Peruso sold cars, according
to Respondent's records, on October 1, 3, and 4 prior to
his discharge on October 7. Perhaps Peruso did take "too
much time with the customers" but his October record, if
continued throughout the month, would have closely
approximated that of the productive Cohen. At least, as of
October 7, the date of Peruso's discharge, Respondent had
no proof, valid or otherwise, that Peruso was not a
productive salesman closely approximating the
productiveness of Cohen.
Again, as in the case of Delaney, the precipitous
discharge of Peruso on October 7 appears to have been
triggered by the known union affiliation of Peruso. As of
the date of the discharge the two salesmen in the existing
unit had on paper, at least, both authorized union
representation and thus constituted a prounion majority
even if Polakoff were, as argued by Respondent,
considered to be in the unit . So by eliminating Peruse, by
discharge Respondent succeeded either in eliminating the
appropriate unit or in eliminating the union's majority
therein and thus eliminated the necessity of collective
bargaining with the Union.
Therefore I must , and hereby do, find that Respondent
discharged Joe Peruso on October 7, 1968 because of his
known membership and activities on behalf of the Union
in violation of Section 8(a)(3) and (1) of the Act.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The refusal to bargain
a. The appropriate unit
In its telegram of October 1 the Union requested
recognition from Respondent in an appropriate unit
described therein as "the automobile salesmen employees"
which in fact is exactly the same unit described in more
legalistic language in the complaint as follows:
All automobile salesmen employees of Respondent,
employed at its place of business, exclusive of office
clerical employees, guards, watchmen, professional
employees and all supervisors as defined in Section
2(11) of the Act.
This identical unit has been found to constitute an
appropriate unit by the Board in an almost limitless
number of automobile sales agency cases similar to the
instant one.
At the hearing Respondent, however, made two
contentions contrary to the above: (1) That the
appropriate unit should consist of all Respondent's
employees including the service department mechanics,
get-ready employees, porters, helpers, etc. because of the
integrated nature of Respondent's business, and (2) if the
unit contended for by the Union were found to be
appropriate, then Sales Manager Polakoff should be
included therein on the theory, discussed supra, that he
was not a supervisor. In the light of my finding to the
contrary regarding Polakoff's supervisory capacity, this
last claim requires no further comment here.
It is quite true that on occasions the Board has found
the unit contended for by Respondent to constitute "an"
appropriate unit just as it has found a unit comprised of
service department employees exclusive of salesmen to
constitute "an" appropriate unit. Obviously there is no
"the" appropriate unit in automobile sales agency cases.
There are several different "an" appropriate units in such
cases.
In the instant case the facts show that there would be
little, if any, community of interest between the sales
department and the service department employees due to
admitted differences in the type of work performed, the
wages, hours, working conditions, supervision, method of
computing commissions payable, among other things
between the employees in the two departments.
Consequently I find that the unit of "salesmen
employees," as more legalistically phrased in the
complaint, consitututed an appropriate unit for collective
bargaining in the instant matter.
b. The majority
At the time of the Union' s demand for bargaining on
October 1, the fact is, as Respondent well knew from
personal inquiry, that the Union was the authorized
representative of all three of Respondent's salesmen who
at that time constituted the appropriate unit. Even if we
should agree to the Respondent ' s wildest claims that
Polakoff and Salesman Lawrence, then "on leave of
absence," should be included within the appropriate unit,
a finding which I cannot make , even under these
circumstances the Union still remained the representative
of the majority of the employees in the appropriate unit
by 3-2.
Accordingly, I must and hereby do find that on
October 1 the Union represented a majority of the
employees in the aforedescribed appropriate unit.
c. Refusal to bargain
Respondent failed to respond to the Union's October 1
request for collective bargaining, which necessarily must
include recognition.
When the Union orally requested Respondent to
bargain collectively with it as the majority representative
of the employees in the above-found appropriate unit on
October 1, Nance himself described his response as
follows
I informed him [Bruckner] that I had no objection to a
union in our shop and I wanted to make that very clear
to him, and we were perfectly willing at any time to
negotiate with him on a contract, but that I had no
evidence whatsoever that he did represent the salesmen
other than the telegram which I received and that there
had been no election held under the supervision of the
Labor Board and that until such election was held, I
felt we had nothing to discuss.
Contrary to Nance's claim of "no evidence
whatsoever," Respondent knew full well at the time of this
demand that the Union was the 100 percent majority
representative and thus entitled to recognition and
bargaining. Polakoff knew this to be the fact as early as
October 1 from personal inquiry of, and assurance from,
all three salesmen involved. Inferentially at least, even in
the absence of direct evidence that Polakoff passed his
information on to Nance - which incidentally would be
almost impossible to believe Nance is charged with the
same knowledge and information. Thus Respondent had
and could have had no good-faith doubt as to the Union's
majority status such as would call for a Board-conducted
representation election." In addition Respondent had
already used the time to dissipate the Union's known
majority by discharging Delaney and subsequently
succeeded in eliminating the appropriate unit through the
discharge of Peruso. In view of these unfair practices the
only possible method of returning to status quo ante is to
require Respondent to bargain with the Union.'
Consequently on October 1 and at all times thereafter,
I must find in accord with the facts that Respondent
refused to bargain with the Union as the majority
representative of Respondent's employees in the
aforefound appropriate unit in violation of Section 8(a)(5)
and (1).
3. Interference, restraint, and coercion
There is no question on this record but that Polakoff
interrogated Delaney, Peruso and Cohen as to their
membership in, activities on behalf of and for the Union.
In view of the Union's demand for bargaining of October
1, Polakoff could, under the safeguards set forth in the
Struksnes Construction case , " have polled these employees
for the purpose of determining the accuracy of the
Union's claim of majority representation. But in this
instance the facts prove that Polakoff made no effort to
follow the safeguards there required, or any of them. In
fact, if Polakoff's testimony on the point could be
believed, at the time of such inquiries he claimed to be
completely unaware of the Union's demand for
recognition which alone would have justified his inquiries
of the employees.
" See Spitzer Motor Sales , Inc., 102 NLRB 437, 451.
"See Joy Silk Mills, Inc, 85 NLRB 1263, enfd . 185 F 2d 732
(CA.DC)
"165 NLRB No. 102.
VARS BUICK CORP.
Thus in either event the inquiries made by Polakoff of
the above employees as to their union membership and
activities amounted to interference, restraint and coercion
in violation of Section 8(a)(l) of the Act. I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in Section III,
above, occurring in connection with the Respondent's
operations described in Section 1, 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 of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that Respondent
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent discriminated in regard
to hire and tenure of employment of Ralph T. Delaney on
October 1, 1968, and of Joe Peruso on October 7 by
discharging each of them because of his membership in
and activities on behalf of the Union , I will recommend
that Respondent offer to each of them immediate and full
reinstatement to his former or substantially equivalent
position , without prejudice to his seniority or other rights
and privileges , and make each whole for any loss of pay
he may have suffered by reason of said discrimination
against him by payment to him of a sum of money equal
to that which he would have earned from the date of the
discrimination against him to the date of his reinstatement
less his net earnings during such period in accordance with
the formula set forth in F. W. Woolworth Company, 90
NLRB 289, with interest thereon at 6 percent per annum.
Having found that Respondent has refused to recognize
and bargain in good faith with the Union as the exclusive
bargaining representative of the employees in the
aforefound appropriate unit, I shall recommend that
633
Respondent, upon the request of the Union, recognize and
bargain in good faith with it as the exclusive bargaining
representative of the employees in the aforesaid
appropriate unit and, if an agreement is reached, embody
such agreement in writing and execute the same.
Because of the variety of the unfair labor practices
engaged in by Respondent, I sense an opposition by
Respondent to the policies of the Act in general and I
deem it necessary to order Respondent to cease and desist
from in any manner infringing upon the rights guaranteed
its employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Local 868, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of
employment of Ralph T. Delaney and Joe Peruso by
discharging them on October 1 and October 7, 1968,
respectively, because of his membership in and activities
on behalf of the Union, and in order to discourage such
union membership and activities, Respondent has engaged
in and is engaging in unfair labor practices in violation of
Section 8(a)(3) of the Act.
3. By refusing on October I and October 4, and at all
times thereafter, to recognize and bargain with Local 868,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the exclusive
bargaining representative of the employees in the
above-found appropriate unit, Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(5) and (1) of the Act.
4 By interfering with, restraining, and coercing its
employees in the rights guaranteed them in Section 7 of
the Act as found above, Respondent has interfered with,
restrained, and coerced its employees in violation of
Section 8(a)(l) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]