Mt. Read Volkswagen, Inc.

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mt. Read Volkswagen, Inc. and Raymond T. Sailer. had threatened employees with reprisals because of union Case 3-CA-3190 or concerted activities. Respondent's conduct was al- December 8, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On September 28, 1967, Trial Examiner Arthur M. Goldberg issued his Decision in the above-enti- tled proceeding, finding that Respondent had en- gaged in and was engaging in unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 Respondent filed excep- tions to the Trial Examiner's Decision and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that Respondent, Mt. Read Volkswagen, Inc., Rochester, New York, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION ARTHUR M. GOLDBERG, Trial Examiner: Upon a charge filed on March 29, 1967,1 by Raymond T. Sailer, an individual, the complaint herein issued on June 2, 1967. The complaint alleged that Mt. Read Volkswagen, Inc. (herein called Mt. Read or the Respondent), had discharged Sailer because he had assisted the Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO (herein called the UAW or the Union), or had engaged in other concerted activity. At the hearing the complaint was amended to allege that Respondent on various dates I Unless otherwise noted all dates herein were in 1967. leg^A to have violated Section 8(a)(1) and (3) of the Na- tional Labor Relations Act, as amended (herein called the Act). Respondent denied all the material allegations of the complaint. All parties participated in the hearing in Rochester, New York, on July 27, 1967, and were afforded full op- portunity to be heard, to introduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. Oral argument was waived and briefs were filed by Respondent and the General Counsel. Respondent's motion to dismiss the complaint, on which I reserved ruling, is disposed of in accordance with my findings below. Upon the entire record in the case, my reading of the briefs, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleged, the answer admitted, and I find that Mt. Read Volkswagen, Inc., is and has been at all times material herein engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent's agency in Rochester, New York, where it is engaged in the sale and service of new and used automobiles is the only facility involved in this proceeding. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Respondent opened its doors on September 1, 1966. Among Respondent's employees are mechanics who are trained to work on Volkswagen automobiles. In late December 1966 or early January2 the mechanics in discussions among themselves voiced dissatisfaction with their compensation. Of particular concern were the wages of Claus Witt, a more experienced mechanic who worked in the unit shop repairing engines and transmissions. The other mechanics who recognized their own inability to perform the work assigned to Witt were concerned that he would leave Respondent's employ and one of them would be required to fill the position in the unit shop. Since mechanics are paid a percentage of the billing price of the work they perform it was feared that the man taking Witt's place would suffer a drop in earnings. During these discussions Sailer asked the employees if they would be interested in speaking to a union representative and deter- mining if a labor organization could be of assistance to them. Among those so queried by Sailer was Donald Blodgett, parts manager and an admitted supervisor within the meaning of the Act. Thereafter, Sailer called the Union and was to advise them of the day of the week ' None of the witnesses could state with precision dates upon which conversations, meetings, or events occurred. The only date which was definitely established was the last day of Sailer's employment, January 14. 168 NLRB No. 100 MT. READ VOLKSWAGEN , INC. 799 the men selected for a meeting. The Union was to call Sailer but never made contact with him. On Tuesday , January 10 the employees again discussed their wages and the fact that Claus Witt had been denied a wage increase and appeared ready to leave Respondent' s employ. The mechanics agreed among themselves that they would approach Respondent and seek an adjustment in their wages before meeting with the Union. Sailer was selected to ask Bert Wasson , Respond- ent's service manager, to meet with the mechanics. At noon Wasson met with the mechanics in the unit shop. The men told the service manager that they wanted an adjustment in their wages and of their concern that Witt would leave if he did not receive additional pay. Wasson asked what the consequences would be if no wage increase was forthcoming and was told that the men would walk out. Though Wasson told the men he didn't like them going behind his back he promised to discuss their wage demands with Robert Barish , Respondent's president and owner. Wasson testified that during this meeting Sailer presented the demand for a wage increase for all the mechanics and that mechanics Edgecomb and Cochrane spoke up for an increase for Claus Witt.3 That evening the employees were called to a meeting with Mt. Read President Barish. Barish told the mechanics that he had been a body-and-fender man him- self and knew their problems. He went on to tell the histo- ry of the Mt. Read agency. Thereafter Barish stated that while he' was not opposed to giving the mechanics higher wages he would not be coerced into doing so and would close Respondent's doors before yielding to an employee ultimatum. However, Barish held out the hope that wages could be raised after Respondent had started to yield a profit which he expected in several months time . During his talk to the men Barish told of a telephone conversa- tion with the service manager of another Volkswagen agency in which mechanics ' wages were discussed. Barish told the men that he had been told during that con- versation that a Mt. Read mechanic was a troublemaker who should be fired. Barish explained that he would not act upon another employer's advice and believed that em- ployees "sooner or later ... show themselves up for what type of people they were."4 Under questioning at the meeting Barish acknowledged that the employee identified as the troublemaker was Sailer . Barish asked the employees to tell him their problems and a discussion followed during which Sailer suggested an improved ven- tilation system in the service area. Gary Edgecomb op- posed the idea as unnecessary.5 After Barish concluded his remarks the management representatives left the meeting and the mechanics discussed their future course of conduct . All but Sailer were content to wait the time Barish had suggested to see if he would raise their wages. Sailer urged the men to stick to their prior decision to walk out if not granted an im- mediate wage boost. After the decision to wait had been made Sailer said he would not be around to see if wages were raised in 3 or 4 months' time. Thereafter Edgecomb told Barish and Wasson that the mechanics had decided to wait for the wage increase. He told them as well that Sailer had been the sole dissenter from this decision and had urged the other employees to carry out their agreement to walk out. Edgecomb also told the company officials that he didn't think Sailer was any good as a mechanic and that he didn 't like Sailer as a person.6 Early in the morning on Saturday, January 14, Edgecomb was called to Service Manager Wasson's of- fice. Wasson told Edgecomb "not to get shook up by anything [he] heard in the near future." Edgecomb had never been called to the service manager 's office before. Wasson testified in explanation that he had been planning to talk to Sailer that morning to see if he was leaving Respondent's employ. Knowing that Edgecomb "might be upset by Sailer leaving and might sway his judgment" and since Edgecomb "was one of the interested parties in getting more money,"7 Wasson wanted to take steps be- forehand to prevent an adverse reaction by Edgecomb. • Later that morning Wasson approached Sailer at his work station . Other than the two participants no other persons were present and their versions of the conversa- tion are in direct conflict. Sailer testified that he was cleaning his toolbox as the service manager approached. After Sailer denied having plans to leave Mt. Read, Was- son said he had heard that Sailer was a little angry because of the employee meeting that week. Sailer acknowledged being "a little mad." Thereupon Wasson told Sailer that because of the trouble he had caused and the talk of the Union the mechanic could pack his tools and leave. Wasson testified that he had heard from various em- ployees that Sailer was planning to leave and accordingly planned to speak to Sailer about the latter's plans. As the service manager approached Sailer's work bay the mechanic was cleaning his toolbox. Wasson asked if Sailer was leaving and when he said he was, Wasson told him that he "might as well leave right now." Sailer denied that he had any plans to leave his job with Respondent, although admitting that he, as well as all the mechanics , was always available if a better position developed. However, on January 14 Sailer had not ob- tained other employment. I Sailer first testified that the events described above occurred on January 3 and that he was discharged on January 7. After the lunch recess Sailer was recalled to the stand and testified that based on his reading of a statement he had given to the State Unemployment Compensation Com- mission he now recalled that the discharge had occurred on January 14 and the events he had placed as having happened on January 3 had also taken place one week later, i.e., on January 10. Sailer impressed me dur- ing his two appearances on the stand as a credible witness who was at- tempting to truthfully recall the events. Additionally , his call to the Union was made before be asked his fellow employees on what day of the week they wished to meet with the UAW. Since January 2 was a paid holiday for Respondent's employees , it appears likely that the call to the Union was made on January 9, that Sailer polled the employees on January 10, and that the meetings with management occurred on that day as well 4 The words are those of mechanic Edgecomb while testifying about the meeting with Bansh. The foregoing account of Barish 's meeting with the mechanics is based on a synthesis of the record testimony , all witnesses having ad- dressed themselves to the meeting and all having substantially cor- roborated one another. Barish's threat to close Respondent's doors rather than yield to an employee ultimatum for higher wages was contained in his own testimony. I find that by this threat Respondent violated Section 8(a)(1) of the Act. 6 Edgecomb and Wasson were in agreement that Edgecomb had re- ported the employees' decision to Bansh and Wasson Bansh denied talk- ing to any employee after his address to the assembled employees I credit Edgecomb and Wasson in their account of this conversation. ' Wasson's words. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Findings and Conclusions I find that Respondent discharged Sailer in violation of Section 8(a)(3) and (1) of the Act. The events of January 14 are susceptible of no other interpretation. I do not credit Wasson's assertion that he had decided merely to inquire of Sailer if the latter was planning to leave Respondent's employ. Rather, I believe that Wasson called Edgecomb to his office and advised Edgecomb not to be upset by events which were to occur because Was- son had determined to discharge Sailer that morning. Edgecomb was important to Respondent. It was he who had opposed Sailer at the meeting with Barish, had spoken for going along with Barish's direction that the mechanics delay their demand for a wage increase, had told Respondent of the events at the employees' meeting, and had informed the Employer of Sailer's having held out for an immediate wage increase and work stoppage. Respondent had no need to fear loss of Edgecomb's alle- giance should Sailer quit. However, his reaction to the discharge of the outspoken Sailer was to be feared and therefore prior action to forestall "sway[ing] his judgment" was needed. Assuming, as Wasson testified, that Sailer had said he was leaving, the service manager did not assert that Sailer planned an immediate departure. Wasson transformed Sailer's inchoate thoughts of leaving into immediate ter- mination. The fact that on January 14 Sailer had made no provision for other employment lends further support to a finding of discharge rather than voluntary quit. American Electronics Company, 134 NLRB 1151. Respondent had expressed its determination to oppose the employees' concerted efforts to secure a wage in- crease. Wasson considered their concerted activity as ac- tions taken behind his back. Barish had threatened to close Respondent's doors before yielding to an employee ultimatum for higher pay. But for Sailer Respondent had been successful in turning the employees from their united effort to better their pay scale. Alone among the mechanics Sailer had dissented from the decision to delay their demand for a wage increase. Further, Sailer had asked the employees to carry out their prior decision to stop work if their demands were not met. Respondent was informed by Edgecomb that Sailer continued his mili- tant stand. Prior to this time Respondent knew or had reason to believe that Sailer was the leader in the em- ployees' union or other concerted activities. It was Sailer who had queried the employees about their interest in at- tending a union meeting and had included Supervisor Donald Blodgett, the parts manager, among those he polled. It was Sailer who called Wasson to the meeting in the unit shop where Sailer had presented the employees' demand for a wage increase. Finally, a former employer had warned Respondent that Sailer was an agitator and troublemaker and had counseled Barish to discharge Sailer." Accepting Barish's statement to the employees that he would not fire Sailer on that advice alone but be- lieved that in the course of time people showed them- selves for what they are, I conclude that Sailer's con- certed and union activities showed him to be an employee not to Respondent's liking and that he was discharged for those activities. 8 I do not credit Barish's testimony that the conversation in which Sailer had been so identified had occurred months before Rather, I be- lieve that after receiving Wasson's report of the employees' demand for higher wages Bansh had called the other Volkswagen dealers in the area IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with its operations as set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. Having found that Respondent unlawfully discharged Raymond T. Sailer, I shall recommend that Respondent be ordered to reinstate him to his former or a substantially equivalent position of employment, without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of earnings suffered as a result of Respondent's unlawful conduct. Backpay shall be com- puted in the manner set forth in F. W. Woolworth Com- pany, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Mt. Read Volkswagen, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. By engaging in certain described conduct referred to hereinabove, in section III, Respondent interfered with, restrained, and coerced its employees in the exer- cise of rights guaranteed-to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By engaging in certain conduct described in section III, above, Respondent discriminated against Raymond T. Sailer in regard to his tenure of employment, in order to discourage activities protected by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER The Respondent, Mt. Read Volkswagen, Inc,, its of- ficers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Threatening employees that it will close its doors before yielding to an employee ultimatum for higher pay, to check with them the wages being paid mechanics, explaining that he was faced with a concerted demand for higher pay. Only in such a context would Barish's informant feel called upon to identify the troublemaker. MT. READ VOLKSWAGEN, INC. or in any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed by the Act. (b) Discouraging or coercing its employees in the ex- ercise of rights guaranteed by Section 7 of the Act by the discharge of Raymond T. Sailer. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Raymond T. Sailer immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of Respondent's discrimination against him as set forth in the section of this Decision entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement 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) Preserve and, upon request, make available to the Board and 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 and compute the amount of backpay due and all other rights under the terms of this Recommended Order. (d) Post at its agency in Rochester, New York, copies of the attached notice marked "Appendix."9 Copies of the said notice, on forms provided by the Regional Director for Region 3, after being duly signed by the Respondent's authorized representative, shall be posted by the 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 other material. (e) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the receipt of this Decision, what steps it has taken to comply therewith.10 APPENDIX NOTICE TO ALL EMPLOYEES 801 Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT threaten to close our doors before yielding to an employee ultimatum for higher pay. WE WILL NOT discourage or coerce our employees in the exercise of their rights to engage in union or concerted activity, such as seeking higher wages, by the discharge of Raymond T. Sailer. WE WILL NOT, in any like or related manner, inter- fere with, restrain, or coerce our employees in the ex- ercise of their right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, ex- cept to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. WE WILL offer to Raymond T. Sailer immediate and full reinstatement to his former or substantially equivalent position, without prejudice to any rights or privileges previously enjoyed and make him whole for any loss of pay he may have suffered by reason of the discrimination against him. All of our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. MT. READ VOLKSWAGEN, INC. (Employer) Dated By IT IS FURTHER ORDERED that the complaint be (Representative) (Title) dismissed insofar as it alleges unfair labor practices not found herein. 8 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respond- ent has taken to comply herewith." Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his 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. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 842-3100.