Dick Gidron Cadillac, Inc.

DICK GIDRON CADILLAC 1107 Dick Gidron Cadillac, Inc. and Philip Scalzetti. Case 2-CA-19660 28 January 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On 8 August 1985 Administrative Law Judge James F Morton issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a response in opposi- tion to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Dick Gidron Cadillac, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after I January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) In adopting the judge's conclusion that deferral to the arbitrator's award is not warranted, we do not rely on the judge's finding that the circumstances here are analogous to those in Laborers Local 135 (Bechtel Power Corp), 271 NLRB 777 (1984), and Seaward International, Inc, 270 NLRB 1034 (1984) Gwynne A. Wilcox, Esq, for the General Counsel. Brian Tunney, Esq, of New York, New York, for the Respondent Steven Kraft, Esq., of Plainview, New York, for the Charging Party DECISION STATEMENT OF THE CASE Cadillac, Inc (Respondent) had just cause to discharge the Charging Party, Philip Scalzetti, (2) if not, whether Scalzetti was discharged in violation of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act), and (3) whether Respondent had unlawfully warned Scalzetti in violation of Section 8(a)(1) of the Act The complaint in this case alleged that Scalzetti was discharged by Respondent on 1 March 1983 because of his activities on behalf of Local 259, United Automobile, Aerospace and Agricultural Implement Workers of America, U A W (the Union). The complaint also al- leged ' that, on 3 February 1983, Respondent violated Section 8(a)(1) of the Act by having, through its sales manager Joseph Spagnola, threatened to discharge Scal- zetti because of his activities as a shop steward for the Union and because Scalzetti had testified at an arbitra- tion hearing on behalf of another employee. Respond- ent's answer put those allegations in issue and set forth, as an affirmative defense, that the Board should defer to an arbitration award that upheld the discharge of Scal- zetti. Prior to the opening of the hearing before me, Re- spondent had filed a Motion for Summary Judgment based on the arbitration award. The General Counsel filed a response in which the General Counsel stated that deferral was not appropriate as the unfair labor practice issue raised by the pleadings in the instant case had not been presented to or considered by the arbitrator within the meaning of the then applicable Board decisions i On 24 July 1984 the Board issued its decision and order de- nying the Motion for Summary Judgment Therein, the Board held that substantial and material issues exist to be resolved at a hearing before an administrative law judge The hearing was held before me in January and Febru- ary 1985 On the entire record in this case, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION AND STATUS OF LABOR ORGANIZATION The pleadings establish and I thus find that Respond- ent is a New York corporation engaged in the retail sale of automobiles, and of automobile parts and services, and that its operations annually meet the Board's retail stand- ard for the assertion of jurisdiction The pleadings also establish that the Union is a labor organization as defined in Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union had represented a unit composed of all service shop employees, including service writers em- ployed by Respondent's predecessor, and after Respond- ent took over in 1975, the Union has continued to be rec- JAMES F MORTON, Administrative Law Judge The issues in this case are (1) whether the Board should defer to an arbitration award that found that Dick Gidron I Suburban Motor Freight, 247 NLRB 146 (1980), Professional Porter & Window Cleaning Co, 263 NLRB 136 (1982) 287 NLRB No 105 1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ognized as their bargaining representative There are about 35 employees in the bargaining unit. The Charging Party, Scalzetti, began working as a service writer for Respondent's predecessor in July 1972. In December 1976 (after Respondent had taken over the dealership), Scalzetti and Thomas Martin, a mechanic, were elected stewards. B. Scalzetti's Activities as a Union Steward The following matters are not in dispute. Scalzetti was a very active steward, much more so than Martin. The uncontradicted testimony establishes that in 1975, Respondent's president, Dick Gidron, told shop steward Martin that he, Gidron, did not want Scal- zetti elected union steward, Scalzetti, however, and as noted above, was elected. In mid-1982, the Union called a strike when contract negotiations for a renewal agreement reached impasse This was the first time the unit employees struck The open issues then were wages, benefits, and various out- standing unresolved grievances, most of which had ema- nated from Scalzetti's activities. At one of the negotiat- ing sessions in 1982, Respondent's president, Gidron, told the Union's business agent that he did not want to sit down to negotiate a contract with the Union as long as Scalzetti was a member of the negotiating committee. Respondent's labor counsel then advised Gidron that he had no authority to dictate to the Union who would be on its negotiating committee Scalzetti remained on the committee Shortly after the strike had begun, the Union offered to end it and to resume negotiations Respondent's presi- dent informed the Union that he would accept that offer if Scalzetti was voted out by the employees as union steward. The strike continued. It lasted about 2 weeks at which point agreement was reached on wages and bene- fits. Further, Respondent and the Union had agreed to work out a schedule to resolve the outstanding griev- ances Respondent's president, Dick Gidron, did not talk at all to Scalzetti for approximately 3 months after the strike ended Thereafter, he "gradually simmered down" in his attitude toward Scalzetti. Scalzetti had processed several grievances filed by Willie Henry, a polisher, who had been suspended, laid off, discharged, and reinstated on several occasions during his employment with Respondent While he was on layoff status in early 1983, Henry learned that Re- spondent had been subcontracting out polishing work and reported this to Scalzetti. Scalzetti notified the Union's office and an arbitration hearing was set up. It appears that the issue then was whether Henry and an- other employee had been improperly laid off in view of the alleged subcontracting out of unit work Scalzetti tes- tified at length in that arbitration proceeding which was held on 2 February 1983. During a recess, a settlement was reached and Henry was returned to work. Scalzetti's testimony before me was uncontroverted that, immediately after that arbitration hearing, Dick Gi- dron's attitude toward him was "cold, hostile" and that the change in Gidron's attitude toward Scalzetti was "drastic." C. Alleged Warning by Sales Manager Spagnola Scalzetti testified that, 2 days after that grievance was settled, Sales Manager Joseph Spagnola told him, while they were processing a repair order, that he (Spagnola) understood from President Dick Gidron that Scalzetti had testified at great length at the Henry arbitration hearing, that, from then on, everything better be done by the book and that, as soon as Scalzetti failed to do it by the book, he was going to be on the outside looking in Spagnola testified for Respondent and answered "No" when asked, on direct examination, whether there was ever a time when he threatened Scalzetti with discipline or discharge for any reason He did not refer in any way to any discussion with Scalzetti as to the Henry arbitra- tion matter, Scalzetti's participation therein, or comments made thereon by Respondent's president. I credit Scal- zetti's detailed testimony over Spagnola's summary denial. D. Scalzetti's Discharge Respondent's controller, Ralph Van Nostrand, testified as follows for Respondent One day in February 1983, when he was going over various computer printouts, he noticed that there was a transaction for which no profit was recorded. He checked the repair order for that transaction and noted that it was made out to a commer- cial account, A & A Service Station, which covered the sale of four tires for $200, and that written thereon in longhand was the phrase "paid by P. Scalzetti." Van Nostrand asked the clerical employee who wrote up the repair order what she recalled of it and she informed him that she had no recollection of the matter He then asked the cashier, who had written the phrase "paid by P Scalzetti" on the repair order, why she had done so She told him that she assumed that that was done so that Scalzetti could be reimbursed when he delivered the tires to the customer. Van Nostrand then told President Dick Gidron about the repair order and what he had found out as a result of his "nosing around " Gidron testified that Van Nostrand left the repair order with him and that he, Gidron, called A & A Serv- ice Station and was advised by its owner it had pur- chased no tires as recorded on that repair order. Gidron testified in effect that the owner was very upset that its name had been fraudulently used in connection with the transaction On 1 March 1983 Respondent's service manager told Scalzetti to report to Gidron's office There, Gidron told him that he, Scalzetti, had bought some tires and that he had written a forged invoice Scalzetti responded that he had not written the invoice for his tire purchase Gidron then said that Scalzetti had "gypped" him out of a profit and that he did not pay the sales tax The Union's other steward, Tom Martin, was present and, in an effort to settle the matter, asked Scalzetti if he would be agreeable to paying the deficiency claimed by Gidron Scalzetti said he would Gidron rejected the offer and told Scal- zetti that he was suspended. On the following day, Scal- zetti received a mailgram informing him that his suspen- sion was converted to a termination from employment, effective 1 March 1983 DICK GIDRON CADILLAC 1109 E The Arbitration Proceeding On being suspended, Scalzetti notified the Union's del- egate, Joe Lewis, who expressed surprise that Scalzetti had allowed himself to be "set up", Lewis observed then that Scalzetti should have known that "the first chance they got, they would take advantage of it " The Union called for arbitration of Scalzetti's discharge In preparation for the hearing before an arbitrator, Scalzetti met with the Union's attorney Scalzetti testi- fied that he told the attorney that, despite the fact that employees always had purchased parts and tires at cost and had never paid sales taxes, Respondent discharged him for having bought four tires at cost and for not having paid sales tax thereon Scalzetti testified that the attorney then told him that there was no way that Re- spondent could prove to the arbitrator that it had just cause under the contract to discharge him and that there was nothing for Scalzetti to worry about The arbitration was held on 30 March 1983 At the outset, the arbitrator had respective counsel draft the issue being submitted to him They did so and offered the following as their submission "Did the Employer have just cause to discharge, Philip Scalzetti on March 1, 1983? If not, what should the remedy be?" Respondent's controller, Ralph Van Nostrand, testified for Respondent at the arbitration hearing; Scalzetti testi- fied for the Union There were no other witnesses before the arbitrator No transcript was made of that hearing nor was it recorded in any way At the hearing before me, there was only one dispute as to what had transpired at the arbitration hearing The dispute had to do with whether Scalzetti, during his cross-examination, had been asked if he believed his discharge was due to his activi- ties as a steward and to some related areas Except for this area of dispute, the accounts as given by ' Van Nos- trand and Scalzetti to the arbitrator are as set out in the arbitration award, received in evidence in this case Scalzetti testified before me that he was asked no ques- tions at the arbitration hearing by either attorney regard- ing whether he was discharged because of his union ac- tivities The General Counsel called union delegate Lewis and union steward Martin as witnesses to the events at the arbitration proceeding Neither recalled anything of questions answered by Scalzetti at the arbi- tration concerning his asserting he believed he was dis- charged because of his union activities. James J. Dean, the attorney who represented Respond- ent at the arbitration proceeding, testified before me that he asked Scalzetti, during his cross-examination why he thought Respondent discharged him. Dean further testi- fied before me that Scalzetti responded to his question and to related questions by stating (1) that he, Scalzetti, believed he was discharged because he "was active in the strike" in that "he was practically responsible for (with the other steward) the picket line," (2) that the strike occurred 8 months previously, (3) that no other employee who struck was discharged, and (4) that Dick Gidron "wasn't friendly to him anymore " Dean's ac- count was corroborated before me by Van Nostrand and also by Respondent's service manager. The attorney who represented the Union at the arbitration proceeding did not testify to rebut Dean's account It is undisputed that, at the arbitration hearing, the at- torneys for both sides summed up after Van Nostrand and Scalzetti had testified Apparently no references were made during the closing arguments to any evidence bearing on the statutory issue The arbitrator, when counsel concluded, asked Scalzetti if he wanted to say anything The arbitrator's account of their discussion reads as follows At the close of the hearing the grievant was asked if he had anything further to add to the record He replied that in his opinion he was dis- charged because he was active in the two week strike which was resolved by the current contract, and because he was a shop steward No probative evidence was offered by him to substantiate that the discharge was motivated by a desire to harass or discriminate against him as a Union Representative or to discourage union activity It is unnecessary to resolve the difference between Dean's account regarding parts of his cross-examination of Scalzetti at the arbitration proceeding and Scalzetti's testimony before me that he was asked no questions on cross-examination about his belief regarding why Re- spondent discharged him 2 It is evident from the arbitra- tor's decision itself that, if Dean's account were credited, the arbitrator did not give any weight to Scalzetti's an- swers on cross-examination because those answers were treated in the award in the same way that the arbitrator viewed the nonevidentiary answers Scalzetti gave to the arbitrator's queries at the end of the hearing If, on the other hand, Scalzetti's account were to be credited, the result would be the same, as the arbitration award re- flects F Evidence Bearing on Respondent's Reasons for Discharging Scalzetti Respondent's president testified that Scalzetti was dis- charged because Scalzetti had defrauded and in effect stole money from Respondent by having purchased tires from it at cost and without having paid sales tax thereon The General Counsel contends that this reason is a pre- text as Scalzetti bought tires at cost without paying sales tax in accordance with a long-established practice Respondent offered extensive testimony and exhibits that established that many of its employees have been discharged over the years because of various acts of dis- honesty To put Respondent's contention in focus, some back- ground is necessary. There is a separate building on the land on which Re- spondent has its automobile dealership That separate building is occupied by the Vogue Tire Company, a company entirely distinct from Respondent except that it has an agreement with Respondent to supply it with tires 2 Were it necessary to do so, I would credit Dean's account as it was corroborated, and because the General Counsel offered no clear corrobo- ration of Scalzetii's denial Further, the General Counsel did not call as a rebuttal witness the individual who appeared as the union attorney at the arbitration hearing 1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and to be paid for them on a monthly basis Frequently, a purchaser of a new car from Respondent will want more expensive tires than those included in the car's list price Respondent will then purchase the more expensive tires from Vogue and resell them with a profit to the customer and collect sales tax thereon Respondent also has commercial accounts to which it sells tires Those tires are obtained from Vogue by Respondent under the agreement spelled out above. Respondent tacks on its profit and it ships those tires to commercial accounts, but does not charge sales tax therefor as under New York law, none is assessed on nonretail sales In support of his asserted reason for discharging Scal- zetti, Gidron testified that Respondent has had for many years a policy, which had been verbally communicated to employees by departmental managers, by which em- ployees receive a 25-percent discount on the purchase price of parts and 10-percent discount on the purchase price of tires and by which they would have to pay sales taxes on all such purchases. Joseph Spagnola, Respond- ent's sales manager in 1983, testified for Respondent, but offered no corroboration of Gidron's testimony as to any such policy. Service Manager Conrad Kreyling also tes- tified for Respondent and also offered no corroborative evidence in support of Gidron's testimony respecting an employee purchase discount policy. Kreyling testified that he had purchased parts on two occasions and paid sales tax, but then admitted, on cross-examination, that those purchases were made by him after Scalzetti had been terminated. Respondent's bookkeeper, Honorah Rutledge, did not offer any corroborative evidence that a discount policy existed. Respondent's controller, Van Nostrand, testified that it was his understanding from his examination of various bills that employees were entitled to a 25-percent discount of employee purchases of parts from Respondent He testified that, as to the purchases of tires from Vogue by Respondent's employees and the payment of sales tax, the policy governing those matters must have come from Dick Gidron. No documentary evidence to support his account was proferred. In support of the General Counsel's contention that Respondent's asserted reason is pretextual, Scalzetti testi- fied in detail and identified transactions going back to 1975 in which he made purchases at cost without being charged sales tax. A former mechanic, Thomas Miller, testified that the system governing employee purchases at Respondent's facility was changed after Scalzetti's dis- charge to require the payment of sales taxes. The testi- mony of another employee, polisher Willie Henry, was to the effect that he was never aware of any discount policy governing the purchase of tires by employees Shop steward Thomas Martin's testimony essentially cor- roborated Scalzetti. The alternate steward, Gilbert Esteve, testified that, on one occasion, Respondent's president (Dick Gidron) brought a customer in and in- structed the parts manager that no sales tax should be charged to that customer for any parts he purchased, but that the invoice should be charged to A & A Service Station, located then across the street from Respondent, and that that was done so that the customer might avoid the payment of sales taxes. The testimony before me submitted by witnesses for the General Counsel established that, up until the time Scalzetti was discharged and for several months thereaf- ter, Respondent's employees routinely purchased tires and also various automobile parts at cost from Respond- ent's parts department and that they did not pay any sales tax This employee perquisite was one that applied to many dealerships in the New York Metropolitan area and was referred to by one employee as "the industry practice." I credit the General Counsel's witnesses that Respond- ent never had a discount policy until after Scalzetti's dis- charge and that, instead, Respondent's employees, prior to Scalzetti's discharge, enjoyed as a perquisite of their employment, the privilege of buying from Respondent at cost and not paying sales taxes. I do not credit Gidron's uncorroborated account or Van Nostrand's surmise, which was not supported by readily available documen- tation Gidron testified that he was unaware that employees other than Scalzetti had violated the discount policy he contended had been promulgated Gidron testified fur- ther that, had he known of those other violations, he would have discharged those employees responsible. The following testimony relates to the specific tire purchase by Scalzetti in February 1983 In early February 1983 Scalzetti purchased four tires from the manager of Vogue Tire Company for $200. The Vogue manager told him then that he would have the bill made up for Scalzetti and that it could be paid for in cash to Respondent's cashier. When Scalzetti was later given the bill by Respondent's cashier, he noted that the invoice was made out to A & A Service Station, one of Respondent's commercial accounts 3 Scalzetti testified that, in order to have an independent record that the four tires involved in the sale were for his personal use, he directed the cashier to write on the invoice the words, "paid by P Scalzetti." She thereupon did this. Approximately a month later as earlier related, Scalzetti was told to report to the office of Respondent's president where he was suspended and later discharged No evi- dence was offered that the other employees involved in the bookkeeping practices relating to Scalzetti's tire pur- chase were disciplined in any way G Analysis 1 The warning The credited evidence establishes that Respondent, by its sales manager then, Joseph Spagnola, warned Scal- zetti on or about 4 February 1983 that he would soon be discharged because he had testified at length at an arbi- tration proceeding 2 days previously. This warning coer- cively interfered with employee rights under Section 7 of the Act Cf. Cerock Wire Cable Group, 274 NLRB 888 (1975) 3 The order number was one of a series assigned to Scalzetti Respond- ent apparently would have me infer from this that Scalzetti himself had written the order There is not sufficient evidence in the record before me to draw such an inference Even if there were, the testimony in the record makes it clear that any such inference was rebutted DICK GIDRON CADILLAC 1111 2 The deferral issue 3 . The deferral issue Turning to the matter of deferral, I note first footnote I of the Board's remand order pertaining to the "devel- opment of record evidence bearing on any intentional or purposeful withholding of facts regarding the statutory issue from the arbitrator " The testimony before me indi- cates quite clearly that the Union's attorney, in his initial interview with Scalzetti, evaluated the grievance as one he could not lose based on his judgment that Respondent could never sustain its burden of showing that it had dust cause to discharge Scalzetti. That judgment was obvious- ly based on his perception that the reason Respondent gave Scalzetti for his discharge contravened established custom and practice It is speculative and highly unlikely that the Union's attorney even considered instead the prospect of the Union's shouldering the burden of prov- ing that Scalzetti was discharged for his union activities. There is nothing in the record before me which would support a finding that Scalzetti or the Union's counsel in- tentionally or purposefully withheld any facts bearing on the statutory issue Any facts relating to such a matter were obviously irrelevant to the issues that had been sub- mitted by Respondent and the Union in writing to the arbitrator for resolution Any facts bearing on "the statu- tory issue" were introduced during the course of Dean's cross-examination of Scalzetti at the arbitration. No reason was proferred about why the cross-examination took that turn I cannot assume that Dean thereby delib- erately sought to submit the statutory issue to the arbitra- tor for resolution. Such an assumption would have to be predicated on a further assumption that Dean had misled the arbitrator from the outset as to the issue to be re- solved when he joined in drafting and signing the sub- mission, as set out earlier in this discussion Rather, it is more likely that, in the ebb and flow of cross-examina- tion, Dean's questions were posed possibly to undermine Scalzetti's credibility or for tactical reasons bearing on the stipulated issue Whatever the reason that Dean pressed Scalzetti as to Scalzetti's opinion, it is clear, from Dean's account, that Scalzetti was responsive to Dean's question; there is no evidence that Scalzetti acted eva- sively in responding to Dean's questions At best from Respondent's standpoint, it may be said that Dean's ques- tions caught Scalzetti unprepared and his responses did not refer to matters developed later by the General Counsel as set out in the complaint in this case I find that the Union in no way intentionally or purposefully withheld any facts from the arbitrator bearing on the statutory issue. In making that finding, I note too that, at the time of the arbitration, the settled law then clearly put the onus on Respondent to present to, and have con- sidered by, the arbitrator the statutory issue. See Subur- ban Motor Freight, 247 NLRB 146 (1980) Moreover, it would seem patently unfair to hold the Union responsi- ble now for not having gone beyond the stipulated issue at the arbitration to pursue the statutory points raised by Dean's cross-examination To do so could produce the anomolous result that only the Union can be held liable ultimately to redress Respondent's alleged discharge of Scalzetti because of his union activities. The Board has held that it will defer to an arbitration award when the proceedings appear to have been fair and regular, all parties have agreed to be bound , and the decision of the arbitrator is not clearly repugnant to the purposes or policies of the Act See Spielberg Mfg. Co., 112 NLRB 1980 (1955). The Board has reaffirmed its commitment to those standards See Olin Corp, 268 NLRB 573 (1984) Recently, the Board clarified its posi- tion regarding the requirement under Raytheon Co., 140 NLRB 883 (1963), that the arbitiator must have consid- ered the unfair labor practice issue Under the standard as revised , an arbitrator will have adequately considered the unfair labor practice issue if the contractual issue is factually parallel to the unfair labor practice issue, and the arbitrator was presented generally with the facts rele- vant to resolving the unfair labor practice . See Olin Corp., 268 NLRB 572 (1984). In the instant case, the only issue formally presented to, and considered by, the arbitrator, was whether Respondent could establish that it had dust cause to discharge Scalzetti As the arbitrator observed , no evidence bearing on the statutory issue was presented and, perforce, none was considered . It is thus evident that the arbitrator was not generally presented with the facts relating to resolving the unfair labor prac- tice issue as Olin mandates. See Hendrickson Bros., 272 NLRB 438 (1984) Respondent does not assert that there was parallelism, but contends in substance that, as a matter of law, Scalzetti was bound by the arbitration in- sofar as the statutory issue is concerned because the Union 's contract with Respondent contains a clause bar- ring Respondent from discriminating against employees for engaging in union activities and that clause renders the contract issue identical to the unfair labor practice issue, citing NLRB v Motor Convoy, 673 F.2d 734 (4th Cir. 1982) Parenthetically, I note that that case is factu- ally inapposite . In any event , Respondent's contention was considered and rejected by the Board in Olin, supra at 575 fn 10 I reject it as it would be manifestly unfair to infer that the arbitrator decided the unfair labor prac- tice issue when it was never formally presented to him and was obviously alluded to, but tangentially , and when it certainly was not addressed by the parties In analo- gous circumstances , the Board has held it would be unfair for it to decide unfair labor practice issues not raised previously See Laborers Local 135 (Bechtel Power Corp.), 271 NLRB 777 (1984) See also Seaward Interna- tional, 270 NLRB 151 (1984) Deferral is not warranted. 4 The statutory issue The General Counsel contends that Scalzetti was dis- charged because of his activities as union steward, in- cluding particularly the fact that he testified at an arbi- tration hearing in February 1983 Respondent asserts that Scalzetti was discharged be- cause he had violated Respondent's policy governing dis- counts on employee purchases and their obligation to pay sales taxes thereon. The General Counsel contends that that reason is pretextual as Respondent had, until after Scalzetti was discharged, followed the industry 1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD practice whereby its employees purchased parts and tires at cost without being charged sales taxes. The evidence is uncontroverted that Scalzetti was a very active union member and steward. Unquestionably, his activities periodically disturbed Respondent's presi- dent whose reactions to Scalzetti's aggressiveness escalat- ed. The credited testimony demonstrates that when Scal- zetti was successful in forcing Respondent to recall Henry from layoff in February 1983, Respondent made it clear that it would retaliate by using the first incident in which Scalzetti did not do everything "by the book" to effect his discharge As it turned out, the incident Respondent used in- volved a rule that was not in the book. Gidron's testimo- ny that the owner of A & A Service Station was upset by the fraudulent use of the A & A name is not credible as the uncontroverted testimony discloses that Gidron himself directed his bookkeeper to use the A & A ac- count to enable a customer to avoid the payment of sales tax For reasons earlier stated, Respondent never had a discount policy or required its employees to pay sales taxes on in-house purchases, until after Scalzetti was dis- charged. Thus, Respondent's asserted reason for dis- charging Scalzetti has no factual basis The disparate treatment accorded Scalzetti compared to the individuals who processed the invoice in question further under- scores Respondent's real motive.4 From the totality of the evidence before me, I find that Respondent discharged Scalzetti on 1 March 1983 in fulfillment of its warning several weeks before that it would find a basis to discharge him because of his testi- mony at an arbitration matter on 2 February 1983 and that the reason ascribed by Respondent to Scalzetti's dis- charge was clearly pretextual. I thus find that the Gener- al Counsel has made out a clear prima facie case that Scalzetti was discriminatorily discharged by Respondent and that Respondent has failed to come forward with any probative evidence to establish that Scalzetti would nonetheless have been discharged for nondiscriminatory reasons. CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization as defined in Sec- tion 2(5) of the Act. 3 It will not effectuate the policies of the Act to defer to the arbitrator's award issued on 9 May 1983, AAA Case 1330-0421-83. 4. Respondent has engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by having, on 4 February 1983 through its Sales Manager Joseph Spag- nola, warned employee Philip Scalzetti in substance that he would be discharged because he gave testimony in an arbitration proceeding brought by the Union against Re- spondent on behalf of another employee. 4 Respondent's controller suggested another ground for Scalzetti's dis- charge-an obvious afterthought 5. Respondent has engaged in a unfair labor practice affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act by having discharged Philip Scalzetti effective 1 March 1983 because of his activities in support of the Union. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily dis- charged Philip Scalzetti, I find it necessary to order Re- spondent to offer him immediate and full reinstatement without prejudice to his seniority or other rights previ- ously enjoyed, and make him whole for any loss of earn- ings he may have suffered by reason of his unlawful dis- charge. Backpay with interest is to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), Florida Steel Corp., 231 NLRB 651 (1977); and Isis Plumbing Co., 138 NLRB 716 (1962). On the foregoing findings of fact and conclusions of law and on the entire record, I issue the following rec- ommendeds ORDER The Respondent, Dick Gidron Cadillac, Inc, New York, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Warning any employee that he or she will be dis- charged for having testified at an arbitration hearing in support of Local 259, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W. (b) Discharging or otherwise discriminating against any employee for engaging in protected concerted activi- ty. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Philip Scalzetti immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of his unlawful suspension and discharge by Respondent in the manner set forth in the remedy section. (b) Remove from Respondent's files any and all refer- ences to Scalzetti's suspension and discharge and notify him in writing that this has been done and that evidence s If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses DICK GIDRON CADILLAC of these unlawful acts will not be used as a basis for future personnel actions against him (c) Preserve and, on request , make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Post at its facility in New York City copies of the attached notice marked "Appendix " 6 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 6 If 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 Nation- al 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 1113 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT warn any employees that he or she will be discharged because he or she testified at an arbitration hearing on behalf of another employee WE WILL NOT discharge any employee for having tes- tified at an arbitration proceeding or otherwise having supported Local 259, United Automobile , Aerospace and Agricultural Implement Workers of America, U.A W. WE WILL NOT in any like or related manner interfere with, restrain , or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Philip Scalzetti immediate and full re- instatement to his former job or, if it no longer exists, to a substantially equivalent position , without prejudice to his seniority or any other rights or privileges previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting from our having un- lawfully discharged him, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that this will not be used against him in any way. DICK GIDRON CADILLAC, INC