Local 259, Automobile Workers

LOCAL 259, AUTOMOBILE WORKERS 421 Local 259, United Automobile , Aerospace, and Agri- cultural Implement Workers of America (Atherton Cadillac, Inc.) and Anthony Dazzo. Case 29-CB- 2130 June 30, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On March 24, 1976, Administrative Law Judge Al- vin Lieberman issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs. The Respondent filed an answering 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The complaint alleges that Respondent restrained or coerced Atherton Cadillac, Inc. (Employer), in vi- olation of Section 8(b)(1)(B) by demanding that it discharge service department general manager, An- thony Dazzo, and by "conditioning the grant of con- cessions in bargaining and agreement upon a con- tract" upon compliance with the demand for Dazzo's discharge. The record reveals that Dazzo was responsible for overall supervision of the Employer's service depart- ment employees; his duties included hiring, firing, discipline, scheduling of work, and overseeing the quality of the work. He discussed and settled griev- ances with the shop steward. On these facts, in agree- ment with the Administrative Law Judge, we con- clude that Dazzo was a representative of Cadillac for the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. One week prior to a representation election held on January 17, 1975,' at which Respondent pre- vailed, Dazzo laid off several employees, including a member of Respondent's organizing committee. He also announced that there would be more layoffs in the future and stated that he intended to reduce an employee's wages. About January 20, 1975, two rep- resentatives of Respondent, Salvatore and Elliot, asked Dazzo to recall the laid-off employees. Dazzo refused and Salvatore remarked "this [is] a declara- tion of war." Thereupon Salvatore and Elliott pro- 1 All dates hereinafter are 1975 tested the matter to the Employer's president, Rich- ard Atherton, Sr., who indicated that the business was suffering losses and that Dazzo was in full charge of the shop. To this Salvatore responded "Mr. Dazzo is creating trouble." Several days after this, the employees noted that work was being turned away from the shop even though there were idle mechanics. The employees be- lieved that Dazzo was responsible and on their own initiative engaged in a work slowdown lasting about 2-1/2 hours. The next day Richard Atherton, Jr., the Employer's vice president, came into the shop seek- ing the reason for the slowdown. Robert McDonald, a member of Respondent's organizing and bargain- ing committee, replied "the problem is Dazzo; light- en Dazzo up, he is harassing and threatening the men," he is "turning away work," and the men are "upset by the proposed layoffs." Atherton then asked McDonald and Zegilla whether they had "any rec- ommendations for a new service manager." They suggested an employee who had been a service writer and who was ultimately given the job after Dazzo's discharge. Collective bargaining began on February 3, and continued until March 3, on which date a contract was agreed upon. Just before the start of bargaining Elliot met with the employees for the purpose of for- mulating bargaining proposals. A strike deadline of March 1 was agreed upon. There is no evidence that anyone at this or any other meeting with the employ- ees suggested that Respondent seek the discharge of Dazzo or that Respondent condition any bargaining concessions or the signing of a contract upon Dazzo's discharge. At the first negotiating session Respondent sub- mitted its proposals and requested that the laid-off employees be recalled. Respondent did not modify any of its proposals or demands regarding the laid- off employees until the last meeting. At one of the mid-February sessions, Salvatore, Respondent's sec- retary and bargaining spokesman, explained why Re- spondent refused to make changes in its proposal. He stated your "manager is making things tough, harass- ing the committee; this is why the men are not being flexible and why they want the contract terms that have been proposed." At one of the February negotiating sessions, after being informed that Respondent was standing firm with regard to its proposals concerning the outstand- ing wage issues, the Employer adjourned the meeting for a half hour, and then announced that Dazzo had been discharged.' Employer's counsel announced 2 The date of Dazzo's discharge is not clear on the record herein Dazzo testified that he was discharged on February 11 Respondent asserts that the Continued 225 NLRB No. 55 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he had been fired on the basis of what Richard Atherton, Jr., had found out through his investiga- tions concerning Dazzo's turning away work and other problems. He further stated "we feel that is the problem and we are going to get rid of the problem forever." On the evening of February 27, Salvatore met with the employees. The employees, who had previously expressed their dissatisfaction with the slow progress of the negotiations and with the conditions in the shop which were caused by Dazzo, and who had pre- viously stated that they could not work with Dazzo, instructed Respondent's negotiators to lower their bargaining proposals, negotiate past the strike dead- line, and settle the contract as quickly as possible, because the biggest problem, Dazzo, was gone. Ac- cordingly, at the next meeting Respondent reduced its wage increase proposals, and with these modifica- tions the Employer accepted all of Respondent's other proposals. Dazzo testified regarding his discharge that Ather- ton, Sr., told him that "union agents . . . demanded that [he] be terminated; [that] they wouldn't negoti- ate a contract; [and that] if [he] wasn't off the prem- ises that day they would strike." The General Coun- sel did not call Atherton, Sr., as a witness. In an attempt to corroborate Dazzo's testimony, the Gen- eral Counsel introduced a letter of reference on Company stationery signed by Atherton, Sr., which states that a "Union dispute arose and to avoid a strike, Mr. Dazzo became the focal point of the dis- pute that made it necessary to relieve Mr. Dazzo of his duties." The General Counsel and the Charging Party con- tend that the circumstantial evidence herein leads to the inescapable conclusion that Respondent made it quite clear to the Employer that no bargaining would be accomplished unless Dazzo were removed. Respondent contends that none of its agents ever demanded Dazzo's discharge or conditioned the grant of bargaining concessions thereon. It contends that its position on the negotiations was not in any way related to a demand for Dazzo's discharge but was merely privileged hard bargaining in response to recent layoffs and expected cuts in salary. The Administrative Law Judge agreed with Re- spondent and dismissed the complaint. He conclud- ed that the General Counsel had created at most only a suspicion that Respondent's motive was to secure Dazzo's discharge.' discharge occurred on February 27 The Charging Party has filed a motion to reopen the record seeking to adduce certain evidence relative to this issue The motion is hereby denied as lacking merit In our view the matters raised therein can be more apparently considered at the compliance stage of the proceeding We do not agree with the Administrative Law Judge's view of the evidence. We find that the evi- dence, although circumstantial, is sufficient to estab- lish a violation herein. While it is true that Dazzo's discharge was never openly demanded, the record reveals an extensive pattern of statements and conduct through which Respondent conveyed a clear message to the Em- ployer to discharge Dazzo and evidenced its unlaw- ful motive. Thus, after an argument concerning the layoffs, for which Dazzo was responsible, Respondent's representatives "declared war" on Dazzo. Atherton, Sr., was thereafter told that Dazzo was creating trouble. After the slowdown, McDonald told Atherton, Jr., that the problem was Dazzo and suggested a replacement for him. During the negotia- tions Salvatore admitted that the bargaining strategy and proposals and the inflexibility with respect there- to were because of Dazzo. In sum, Respondent's message to fire Dazzo and its hostility toward Dazzo were repeatedly communicated to the Employer. We view as particularly significant the fact that shortly after Dazzo's discharge Respondent substan- tially lowered its bargaining demands ° and agreed to negotiate past the strike deadline of March 1; in fact, agreement was reached on March 3. This change in bargaining strategy occurred after Salvatore met with Cadillac's service department employees on Febru- ary 27. At this meeting, the employees, who had pre- viously protested the shop conditions for which Daz- zo was responsible and who had previously said they could not work with Dazzo, told Salvatore to try and wrap up negotiations, modify their bargaining pro- posals, and reason with management, because the biggest problem, Dazzo, was gone. We are addition- ally persuaded by the fact that the Employer dis- charged Dazzo only after it was clear that bargaining was hopelessly stymied. Yet its stated reason in- volved the events surrounding the work slowdown, which occurred at least a month previously. On the basis of all the foregoing we find that Re- spondent has violated Section 8(b)(1)(B) of the Act by engaging in a course of conduct during negotia- tions by which it restrained and coerced the Employ- er in the selection of Anthony Dazzo as its represen- tative for the adjustment of grievances. 3 The Administrative Law Judge found that the General Counsel's failure to call Atherton , Sr, as a witness to corroborate Dazzo's hearsay testimony as to the reason for his discharge raises the adverse inference that Atherton, Sr, would not corroborate Dazzo's testimony and would have given testi- mony favorable to Respondent He also refused to consider the letter of reference allegedly written by Atherton, Sr, as corroboration because the letter itself is hearsay We agree as to the hearsay nature of Dazzo's testimo- ny and of the letter, however , we find the adverse inference is improper here since Atherton , Sr, is clearly a witness equally available to both parties Respondent reduced its wage increase proposal for mechanics from $1 50 an hour to $1 11 an hour and also reduced the amount of its lower incentive proposal for polishers LOCAL 259, AUTOMOBILE WORKERS 423 THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operation of Ather- ton Cadillac, Inc., as described in section I of the Administrative Law Judge's Decision, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in un- fair labor practices within the meaning of Section 8(b)(1)(B) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action, including the posting of appropriate notices, de- signed to effectuate the policies of the Act. Specifically, we shall order that Respondent Union be required to send a letter to the Charging Party, with a copy to Atherton Cadillac, Inc., his former employer, stating that it has no objection to his em- ployment or selection as a representative for the pur- poses of collective bargaining or the adjustment of grievances by the Employer and will not question his reemployment or reinstatement. We shall further or- der Respondent to make Anthony Dazzo whole for any loss of earnings suffered by reason of its unlaw- ful conduct, by payment to him of the sum of money equal to the amount that he would have earned from the date of the discrimination against him, less net earnings during said period.' Backpay shall be com- puted with interest on a quarterly basis in the man- ner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-295 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. By demanding that Atherton Cadillac, Inc., dis- charge Anthony Dazzo and by conditioning the grant of concessions in bargaining upon compliance with said demand Respondent has restrained and coerced Atherton Cadillac, Inc., and thereby has en- ' We are aware that on October 16, 1975, Respondent sent a letter to the Employer informing it that the Union had no objection to the employment of Anthony Dazzo There is no evidence that Dazzo was ever made aware of this letter Dazzo testified that 3 days before, on October 13, 1975, Atherton, ST, after stating that he had checked with union representatives , told him he could have his job back if he would drop his suit against the Union As we are unable to ascertain from the record all the events surrounding these communications, we shall leave to the compliance stage of the proceeding the determination of the significance of these events on any backpay liabili- ty. gaged in unfair labor practices within the meaning of Section 8(b)(l)(B) of the Act. 2. The aforesaid unfair labor practice is an unfair labor practice 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 Re- lations Board hereby orders that the Respondent, Local 259, United Automobile, Aerospace, and Agri- cultural Implement Workers of America, New York, New York, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Demanding of Atherton Cadillac, Inc., the dis- charge of Anthony Dazzo and conditioning the grant of concessions in bargaining upon compliance with said demand. (b) In any like or related manner, restraining or coercing the aforesaid Employer or any other em- ployer in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Send a written notice to Anthony Dazzo, with a copy to the Employer, stating that it has no objec- tion to his employment or selection as a representa- tive for the purposes of collective bargaining or the adjustment of grievances by the Employer and that it will not question his reemployment or reinstatement. (b) Make Anthony Dazzo whole for any loss of earnings suffered by reason of its unlawful conduct in the manner provided above in the section entitled "The Remedy." (c) Post at its offices in New York, New York, copies of the attached notice marked "Appendix." 6 Copies of said notice on forms provided by the Re- gional Director for Region 29, after being duly signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by Respon- dent for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. 6 In the event that this Order is enforced by a Judgment of a 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 " 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Sign and deliver sufficient copies of said notice to the Regional Director for Region 29 for posting by Atherton Cadillac, Inc., at all locations where notices to its employees are customarily posted, if said Em- ployer is willing to so post. (e) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT demand the discharge of Antho- ny Dazzo nor condition the grant of concessions in bargaining upon compliance with said de- mand. WE WILL NOT in any like or related manner restrain or coerce Atherton Cadillac, Inc., or any other employer in the selection of its representa- tives for the purpose of collective bargaining or the adjustment of grievances. WE WILL send a written notice to Anthony Dazzo, with a copy to Atherton Cadillac, Inc., stating that we have no objection to his employ- ment or selection as a representative for the pur- poses of collective bargaining or the adjustment of grievances by Atherton Cadillac, Inc., and that we will not question his reemployment or reinstatement. WE WILL make Anthony Dazzo whole for any loss of earnings suffered by reason of our unlaw- ful conduct. er Respondent violated Section 8(b)(1)(B) of the National Labor Relations Act, as amended (Act)? More particular- ly, the questions for decision are as follows: 1. Was Anthony Dazzo, the Charging Party, at times material to this proceeding , a representative of Atherton Cadillac, Inc. (Cadillac), for the purpose of adjusting griev- ances within the meaning of Section 8(b)(1)(B) of the Act? 2. Assuming an affirmative answer to the foregoing question, did Respondent in violation of Section 8(b)(1)(B) of the Act restrain or coerce Cadillac by demanding that Cadillac discharge Dazzo? 3. Again assuming an affirmative answer to question 1, above, did Respondent in violation of Section 8(b)(1)(B) of the Act restrain or coerce Cadillac by refusing to make concessions during its bargaining with Cadillac unless Cad- illac discharged Dazzo? Upon the entire record, upon my observation of the wit- nesses and their demeanor while testifying and having tak- en into account the brief submitted by Respondent and the arguments made by the parties,' I make the following: FINDINGS OF FACT 1. JURISDICTION Cadillac, a New York corporation, is engaged at West Islip, New York, in the retail selling and servicing of auto- mobiles. During the year ending on July 30, 1975, a repre- sentative period, Cadillac's gross volume of business ex- ceeded $500,000. During the same period Cadillac purchased automobiles and automobile parts valued at in excess of $50,000 from vendors located outside the State of New York. Accordingly, I find that Cadillac is engaged in commerce within the meaning of the Act and that the as- sertion of jurisdiction over this matter by the National La- bor Relations Board (Board) is warranted. II. THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of the Act. LOCAL 259, UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Administrative Law Judge: The hear- ing in this proceeding, with all parties except the Charging Party represented, was held before me in Brooklyn, New York, on December 9 and 10, 1975, upon the General Counsel's complaint dated July 31, 1975,' and Respondent's answer.2 In general, the issue litigated wheth- i The complaint was issued pursuant to a charge filed on May 7, 1975, by Anthony Dazzo 2 During the hearing the answer was amended to admit pars 2, 3, 4, 5, 6, and 7 of the complaint III. INTRODUCTION Briefly, this case is concerned with events preceding and following Respondent's certification as the bargaining agent of Cadillac's service department employees. In this connection, the complaint alleges, and Respondent denies, that during bargaining between Respondent and Cadillac after Respondent's certification, Respondent restrained 3 This section of the Act provides Sec 8(b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjust- ment of grievances ° The General Counsel did not submit a brief 5 Although all the arguments of the parties and the authorities cited by them, whether made orally at the hearing or appearing in Respondent's brief may not be discussed in this Decision , each has been carefully weighed and considered LOCAL 259, AUTOMOBILE WORKERS 425 and coerced Cadillac, in violation of Section 8(b)(1)(B) of the Act, by demanding that Cadillac discharge Anthony Dazzo, asserted in the complaint to have been Cadillac's "representative for the purpose of adjustment of gnev- ances." The complaint further alleges, and Respondent also denies, that Respondent additionally restrained and coerced Cadillac by conditioning "the grant of concessions in bargaining and agreement upon a contract upon [Cadil- lac's] compliance with [its] demand" for Dazzo's discharge, thereby causing Cadillac to terminate Dazzo's employ- ment. IV. PRELIMINARY FINDINGS AND CONCLUSIONS 6 A. Dazzo's Status In 1965 Anthony Dazzo began to work for Cadillac as a mechanic. After a series of promotions Dazzo, in about 1971 or 1972, was appointed by Cadillac as its general manager and he occupied this position until his discharge. As general service manager, Dazzo performed the duties usually inherent in such a position. These included overall supervision of Cadillac's service department and the em- ployees who worked there; hiring, disciplining, and firing employees; scheduling work; and overseeing the quality of the work done in the service department. In addition, Dazzo handled grievances filed by Cadillac's employees. In this connection, as appears from Dazzo's uncontroverted testimony, he discussed and set- tled grievances with the shop steward of the union which preceded Respondent as the bargaining agent of Cadillac's service department employees and with that union's dele- gates. Accordingly, I conclude that Dazzo was a representative of Cadillac for the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. B. Respondent's Organizing Campaign and Accompanying Events In November 1974 Respondent instituted a campaign to unseat another union as the bargaining representative of Cadillac's service department employees. On January 17, 1975,8 Respondent prevailed at a representation election and, on January 31, it was certified as the bargaining agent of those employees. While Respondent's campaign was in progress Anthony Dazzo, who was then Cadillac's general service manager, was instructed by Richard Atherton, Sr, Cadillac's presi- dent, to dampen the ardor of Cadillac's service department 6 The purpose of these findings and conclusions is to furnish a frame of reference within which to consider the facts relating to Respondent's alleged unfair labor practices and to the conclusions to which they may give rise To the extent that the contentions of the parties relate to the findings and conclusions made here they will be treated here, although they, as well as the findings and conclusions, may again be considered in other contexts 7 There is dispute regarding the date of Dazzo's discharge The General Counsel claims that it occurred on February 11, 1975 Respondent asserts that the discharge took place some 16 days later In the view I take of this case the actual date on which Dazzo's employment was terminated is imma- terial 8 All dates hereinafter mentioned without stating a year fall within 1975 employees for Respondent.' To this end, on about January 10, a week before the election, Dazzo laid off several em- ployees, including a member of Respondent's organizing committee, and announced at a meeting attended by ser- vice department employees that there would be further lay- offs the following week. In addition, some days later, Daz- zo told Robert McDonald, also a member of Respondent's organizing committee, that he intended to reduce an employee's wages. C. Events Between the Election and the Commencement of Bargaining On or about January 20, 1975, Louis Salvatore, Respondent's secretary, and Steven Elliot, a representative of Respondent, asked Anthony Dazzo to recall the laid-off employees. Upon his refusal to do so, Salvatore remarked, as Elliot testified, "this [is] a declaration of war." The next day Salvatore and Elliot met with Richard Ath- erton, Sr., Cadillac's president, and again asked that the laid-off employees be recalled, expressing the view that "there was no justification for the layoff." Disagreeing with this, Atherton, Sr., said that "the business [is] suffering losses." During this meeting Atherton, Sr., informed Salvatore and Elliot that "Tony [Dazzo] runs my shop, what has to be has to be." To this Salvatore responded "Mr. Dazzo is creating trouble." 10 Several days after this Robert McDonald, a member of Respondent's organizing and bargaining committees, ob- served that persons bringing their automobiles to Cadillac's shop for repair were refused service and told, notwith- standing that mechanics were idle because there was no work for them to do, that the service department was "booked up and ... couldn't handle the work." McDon- ald reported this to the service department employees whereupon they, on their own initiative and without Respondent's sanction, engaged in a slowdown lasting about 2-1/2 hours to protest, among other things, the turn- ing away of work, which they believed had been ordered by Dazzo, because that practice had an adverse effect on their earnings. The next day Richard Atherton, Jr., Cadillac's vice presi- dent, came into the shop seeking the reason for the slow- down. In this connection, he asked McDonald and Edward Zegilla, another member of Respondent's organizing and bargaining committees, "what the problem was?" Ather- ton, Jr., was informed by McDonald that "the problem is Dazzo; lighten Dazzo up, he is harassing and threatening the men; [that] Dazzo [was] turning away work; [and that] the men [were] upset by the proposed layoffs." 11 Upon receiving this information, Atherton, Jr., asked McDonald and Zegilla whether they had "any recommen- 9 In this respect, the General Counsel stated in his opening address that "independently, as well as under the instructions of Mr Atherton, [Dazzo] engaged in what might commonly be called the employer's campaign against the union " 10 The findings in this and the preceding paragraph are based on, and the quotations appearing in the text are taken from Elliot's testimony 11 It will be remembered, in this connection, that on January 10, Dazzo announced that there would be layoffs in addition to those employees who had been laid off that day 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dations for a new service manager." They suggested that an employee who was then a service writer would be a "good" man for the position.12 V. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Concerning Respondent's Alleged Violations of Section 8(b)(1)(B) of the Act 13 1. The bargaining through the date of Dazzo's discharge Bargaining between Respondent and Cadillac for a col- lective agreement covering Cadillac's service department employees began on February 3, 1975, and continued until March 3,14 on which date a contract was agreed upon. On January 22, before bargaining commenced, Steven Elliot, a representative of Respondent, met with Cadillac's service department employees for the purpose of formulating Respondent's bargaining proposals. Among the sugges- tions made by the mechanics in the unit, who were then receiving $6 and hour, was that Respondent seek a $2- or $3-an-hour increase for them. These were characterized by Elliot as "crazy figures" and it was ultimately decided that Respondent would propose a $1.50-an-hour increase for mechanics which Elliot felt, as he testified, was a "rational ... bargaining figure to start with." Neither at this meeting, nor at any other meeting con- ducted by Respondent with Cadillac's employees while bargaining was in progress, did anyone suggest that Re- spondent seek the discharge of Anthony Dazzo, Cadillac's general service manager, or that Respondent condition any bargaining concession or the signing of a contract on Dazzo's discharge. At the first negotiating session held, as set forth above, on February 3, Respondent submitted its proposals. These included an increase in the wages of mechanics from $6 to $7.50 an hour, an increase in the incentive rate for polish- ers, two additional holidays and plans for vacations, sick leave, and pensions. Respondent also requested at this ses- sion and at every subsequent one that the laid-off employ- ees be recalled. Respondent did not modify any of its proposals until the last meeting. In this regard, at the meeting of February 11 or 20, Louis Salvatore, Respondent's secretary and bar- gaining spokesman, explained why Respondent refused to make changes in its proposals. As Elliot, a representative of Respondent, testified concerning this, Salvatore stated that Cadillac's "manager is making things tough, harassing the committee, this is why the men are not being flexible, and why they want the contract terms that have been pro- 12 The findings in this and the preceding two paragraphs are based on testimony given by Steven Elliot a representative of Respondent , McDon- ald, from which the unattributed quotations appearing in the text have been taken, and Zegilla 17 As already noted, the complaint alleges that by demanding and causing the discharge of Anthony Dazzo, a grievance adjuster for Cadillac, and by conditioning bargaining concessions and agreement upon a contract upon Dazzo's discharge Respondent restrained and coerced Cadillac in violation of Sec 8(b)(1)(B) of the Act 14 In addition to the negotiating sessions mentioned in the text , negotiat- ing sessions were held on February 11, 20, 25, and 27 posed." In like vein, as Salvatore testified , he told Richard Atherton, Sr., Cadillac's president, that "problems [created by management ] with threats of more layoffs and threats of cuts in pay . . . makes bargaining tough." Dazzo, Cadillac's general service manager, was dis- charged on one of the days on which Respondent and Cad- illac were engaged in bargaining. " The probative evidence shows, however, that at no time during the negotiations did Respondent expressly request that Dazzo be discharged or expressly condition the grant of any concession in bargain- ing or the signing of a contract on Dazzo's discharge. At the commencement of the negotiating session on Feb- ruary 27, the day on which Respondent claims Dazzo was discharged, the monetary items still open included the wage rate for mechanics for whom Respondent had re- quested a $ 1.50-an-hour increase; the pay of a parts de- partment employee ; and the incentive rate for polishers. Upon being informed that Respondent was not inclined at that time to make changes in its proposals in any of these areas, Cadillac's lawyer asked Respondent's negotiators to leave the room so that he could confer with Atherton, Sr., Cadillac's president. They complied and for the next half hour they wandered about in Cadillac's showroom and shop. As Respondent's secretary and bargaining spokesman, Salvatore, testified, when bargaining resumed Cadillac's lawyer announced that Dazzo had been discharged;16 he had been "fired . . . based on what [Richard Atherton, Jr., Cadillac's vice president] had found out through [his] in- vestigations . . . so we feel that is the problem and we are going to get rid of the problem forever." Cadillac's lawyer then asked whether Respondent's negotiators had any comment. Salvatore replied, as he further testified, that he was not there "to discuss . . . Dazzo's discharge [but] to discuss a contract and [he] want[ed] to discuss a contract, not . . . Dazzo's discharge [which was] not [his] cup of tea." Dazzo testified , regarding his discharge, that on Febru- ary 11, while Respondent's negotiators were on Cadillac's premises, Atherton, Sr., Cadillac's president, told him that "union agents ... demanded that [he] be terminated; [that] they wouldn't negotiate a contract ; [and that] if [he] wasn't off the premises that day they would strike." The General Counsel did not call Atherton, Sr., as a witness to support Dazzo's testimony , nor did he explain his failure to do so. Instead, to bolster the testimony given by Dazzo the General Counsel offered in evidence a let- ter 17 on Cadillac's letterhead signed by Atherton, Sr., not for the truth of its contents , but, the General Counsel stat- ed, "as corroborative of ... Dazzo's testimony concerning the circumstances of his discharge." The letter states that "a Union dispute arose and to avoid a strike, Mr. Dazzo became the focal point of the dispute that made it neces- sary to relieve Mr. Dazzo of his duties." 15 Dazzo testified that he was discharged on February II Respondent asserts that the discharge occurred on February 27 As already pointed out the actual date on which Dazzo's employment was terminated is immaterial Nevertheless, in view of the sequence of events it is more likely that Dazzo was dismissed on the latter, rather than the former, date I6 Cadillac's service department employees became aware of this very quickly Ir G C Exh 3 LOCAL 259, AUTOMOBILE WORKERS 427 2. The bargaining following Dazzo's discharge During the evening of February 27, 1975, Louis Salva- tore, Respondent's secretary and bargaining spokesman, and Respondent's negotiating committee met with Cadillac's service department employees. The employees, who had previously expressed their dissatisfaction with the slow progress of the negotiations, urged Respondent's ne- gotiators to lower their bargaining proposals and to settle this contract as quickly as possible.'' Accordingly, at the next negotiating session, held on March 3, Respondent reduced its wage increase proposal for mechanics from $1.50 an hour to $1.11 an hour and also reduced the amount of its incentive proposal for pol- ishers. With these modifications Cadillac accepted all of Respondent's other proposals and the two parties entered into a contract. B. Contentions and Concluding Findings Concerning Respondent's Alleged Violations of Section 8(b)(1)(B) of the Act The complaint alleges, and the General Counsel con- tends, that Respondent violated Section 8(b)(1)(B) of the Act 19 by demanding that Cadillac discharge Anthony Dazzo whose duties included the adjustment of grievances, and that in furtherance of this demand Respondent "con- ditioned the grant of concessions in the bargaining upon [Cadillac's] compliance with said demand." As was stated in International Ladies' Garment Workers Union, AFL-CIO (Slate Belt Apparel Contractors Association), 122 NLRB 1390, 1402 (1959), enforcement denied on other grounds 274 F.2d 376 (C.A. 3, 1960), "no finding is permitted that [Section 8(b)(1)(B)] has been violated without proof that the labor organization or its agents threatened or exerted restraint or coercion against the employer." 20 The "proof" referred to in Slate Belt to establish a viola- tion of Section 8(b)(1)(B) of the Act may, of course, be direct or circumstantial, as is the case in establishing a vio- lation of any other section of the Act.2' And the General Counsel relies on both. The direct evidence adduced by the General Counsel to show that Respondent "exerted restraint or coercion" to compel Cadillac to terminate Dazzo's employment before it would make bargaining concessions or agree upon a con- tract consists of Dazzo's testimony and the letter 22 signed by Richard Atherton, Sr., Cadillac's president. Concerning Is It should be borne in mind that by this time bargaining between Re- spondent and Cadillac had been in progress for about a month 19 Although earlier set forth, the terms of Sec. 8(b)(1)(B) are repeated here for ready reference In pertinent part the section provides that it "shall be an unfair labor practice for a labor organization or its agents to restrain or coerce an employer in the selection of his representative for the [pur- pose] of the adjustment of grievances" 20 The expression "restraint or coercion" is broad Included within its compass, it seems to me, is a union's demand for the discharge of an employer's grievance adjuster and its conditioning a bargaining position upon the employer's compliance with that demand But, as will be shown, there is no probative evidence of this in the record 21 N L R B v Link-Belt Company, 311 U S 584, 602 2'G C Exh 3 the former, Dazzo testified, as above set forth, that he was told by Atherton, Sr., that Respondent' s agents demanded that he be discharged and unless Cadillac complied Re- spondent would not enter into a contract with Cadillac and would strike. The letter, it will be remembered, sets forth that Dazzo "became the focal point of [a union] dispute" and that "to avoid a strike" Dazzo was "reliev[ed] of his duties." The testimony given by Dazzo concerning what he was told by Atherton, Sr., as to what the latter was informed by Respondent's agents regarding their demand for Dazzo's discharge is clearly hearsay. This being so, it has no proba- tive value.23 Therefore, it cannot, alone, form the basis for a finding that Respondent violated Section 8(b)(1)(B) of the Act. N.L.R.B. v. Amalgamated Meat Cutters and Butch- er Workmen of North America, Local 127 [Armour Cream- ery], 202 F.2d 671, 673 (C.A. 9), cited with approval by the Board in American Rubber Products Corp., 106 NLRB 73, 75 (1953), and Haddock-Engineers, Limited, 104 NLRB 994, 995 (1953). In apparent recognition of this precept, the General Counsel sought to corroborate Dazzo's testimony by the letter signed by Atherton, Sr. The difficulty with this posi- tion is that the letter purporting to set forth Respondent's attitude toward Dazzo's continued employment by Cadil- lac, like Dazzo's testimony and for similar reasons , is also hearsay. Accordingly, the letter, being itself hearsay, can- not be availed of to corroborate Dazzo's testimony, which also suffers from that infirmity. Carl J. Austad & Son, Inc., 163 NLRB 1, 7 (1967). Corroboration of Dazzo's testimony could have been ob- tained from Atherton, Sr., who, presumably, would have had first hand knowledge of Respondent's demand for Dazzo's discharge as the price of avoiding a strike against Cadillac and as the quid pro quo for a contract, if such a demand actually had been made. Yet, without explanation, the General Counsel failed to call Atherton, Sr., as a wit- ness. His failure to do so raises the inference, which I draw, that had this been done Atherton, Sr., would not only not have corroborated Dazzo's story, but would have given tes- timony favorable to Respondent. Golden State Bottling Company, Inc. v. N.L.R.B., 414 U.S. 168, 174 (1973); Inter- state Circuit, Inc. v. United States, 306 U.S. 208, 226; N.L.R.B. v. Dorn's Transportation Company, Inc., 405 F.2d 706, 713 (C.A. 2, 1969), enfg. in this respect 168 NLRB 457 (1967). Notwithstanding the absence of direct probative evi- dence to show that Respondent demanded Dazzo's dis- charge and conditioned bargaining concessions and agree- ment on a contract upon the termination of Dazzo's employment, the General Counsel argued, at the hearing, that circumstantial evidence consisting of the modification of Respondent's bargaining proposals after Dazzo's dis- charge and "statements" by Respondent's agents and a member of its bargaining committee "leads to the inescap- able inference" that Respondent's bargaining stance was adopted to cause Dazzo's discharge and to make it known to Cadillac that "Dazzo's discharge ... would lead to con- 23 Dorwood Rental Company, 178 NLRB 635, 636 (1969), Thrush Press, Inc, 171 NLRB 575, 580 (1968) 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tract concessions." 24 I do not agree that this is the only inference to be drawn from the evidence referred to by the General Counsel. The more likely inference is that Respondent 's bargain- ing position and its initial unwillingness to make conces- sions, which under Section 8(d) of the Act Respondent was not required to make, was merely a manifestation of privi- leged hard bargaining brought on by the insecurity felt by Cadillac's employees concerning their jobs and wages. Making this crystal clear was Salvatore's testimony that during the negotiations he stated to Atherton, Sr., that management's creation of problems "with threats of more layoffs and threats of cuts in pay . . . makes bargaining tough." The easing of Respondent 's bargaining position after Dazzo's discharge creates at most only a suspicion that it was Respondent's purpose to cause his discharge by refus- ing to do so earlier . "But, as has been held countless times, suspicion is not a substitute for proof." Rafael Igartua, Pro- prietor of Aguadilla Children's Wear Plant, 174 NLRB 615, 619 (1969). Furthermore, concerning the General Counsel's "ines- capable inference" argument, "an unlawful purpose" is not lightly to be inferred. In the choice between lawful and 24 The "statements" alluded to by the General Counsel were the "declara- tion of war" statement to Dazzo made by Louis Salvatore , Respondent's secretary and bargaining spokesman, before Respondent's certification and the commencement of bargaining, the "Dazzo is creating trouble" state- ment made by Salvatore to Atherton, Sr, also before Respondent's certifi- cation and the commencement of bargaining , the "lighten Dazzo up" state- ment made by Robert McDonald, a member of Respondent's bargaining committee to Richard Atherton , Jr, Cadillac's vice president while he was seeking the reason for the slowdown , and the statement made by Salvatore during bargaining that Dazzo was "making things tough , harassing the com- mittee." unlawful motives, the record taken as a whole must present a substantial basis of believable evidence pointing toward the unlawful one." 25 Upon careful consideration of the ev- idence in the record, as well as the General Counsel's sig- nificant failure to call Atherton, Sr., Cadillac's president, as a witness, as set forth above, I do not find such a "substan- tial basis of believable evidence" to be present. Accordingly, upon the entire record I conclude that the General Counsel has not proven by a preponderance of the evidence that Respondent violated Section 8(b)(1)(B) of the Act. My order will, therefore, provide that the com- plaint be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Cadillac 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. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. While employed by Cadillac as general service man- ager Anthony Dazzo was Cadillac's representative for the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. 4. It has not been established by a preponderance of the evidence that Respondent engaged in unfair labor practic- es within the meaning of Section 8(b)(1)(B) of the Act. [Recommended Order for dismissal omitted from publi- cation.] 25 N L R B v T A McGahey, Sr, etc , d/b/a Columbus Marble Works, 233 F 2d 406, 413 (C A 5, 1956)