Continental Motors, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1964

145 N.L.R.B. 1075 (N.L.R.B. 1964)

CONTINENTAL MOTORS, INC. 1075
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio,
Telephone No. Main 1-4465, if they have any question concerning this
notice or compliance with its provisions.
Continental Motors, Inc. and Local 259, United Automobile,
Aerospace and Agricultural Implement Workers of America,
AFL-CIO. Case No. 2-CA-9f04. January 17, 19641
DECISION AND ORDER
On August 21, 1963, Trial Examiner Sidney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, the Respondent, the General Counsel, and the Charging Party
filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
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 entire
record in this case, including the Intermediate Report, the exceptions
and briefs, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations, with the following additions and
modifications:
1. We adopt the Trial Examiner's findings that the Respondent
violated Section 8(a) (1) of the Act by the following conduct of its
supervisors and agents: (a) Philip Bonacorsa, president, unlawfully
interrogated and threatened employee Mays on March 15, 1963, and
made remarks to employee Nienstedt on March 28 containing promises
of benefit designed to coerce the striking employees to return to
work; (b) Schreibman, sales manager, unlawfully interrogated em-
ployees Falke and Nienstedt, and threatened Nienstedt, on March 15;
145 NLRB No. 107.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Michael Bonacorsa, secretary and service manager, threatened
employees Mays, Falke, and Nienstedt on March 25.
We find merit in the exceptions of the General Counsel and the
Charging Party to the Trial Examiner's findings that the conduct
of Michael and Philip Bonacorsa, Jr., described below, was not also
unlawful.
On March 15, 1963, Michael Bonacorsa, an admitted supervisor,
asked Nienstedt if he had joined the Union and, when Nienstedt re-
plied that he had, asked him why, and then told him, "You are only
getting yourself involved with a bunch of gangsters and you are going
to get into trouble." Later the same day, he again asked Nienstedt,
in the presence of employee Falke, why he wanted to join the Union,
and told him, "Any organization that was involved with `spiks' and
niggers' couldn't do [the employees] any good." We find, contrary
to the Trial Examiner, that these remarks constituted additional vio-
lations of Section 8(a) (1).
We also find, contrary to the Trial Examiner, that Philip Bona-
corsa, Jr., referred to in the record as "Tippie," was an agent of the
Respondent at all times material herein. "Tippie," who works as a
salesman, is the son of Philip Bonacorsa, president, and his wife,
Dorothy, vice president of the Respondent, and the nephew of Michael
Bonacorsa, brother of Philip and secretary of the Respondent. Philip,
Dorothy, and Michael Bonacorsa are the only corporate officers. On
March 15, "Tippie" asked employee Mays whether the employees
wanted a union in the shop and whether all employees had signed
for the Union. On March 19, he told employee Nienstedt that he
"was going to get in trouble" and would have his "head opened be-
cause the Union was coming in," if he "tried to get the union cards."
He added that his father "knew a lot of people" and that the men in
the shop were asking for trouble by inviting the Union into the place.
On March 22, during the strike, "Tippie" approached Nienstedt again,
while the latter was walking picket duty, called him a "punk," and
told him he was "asking for trouble, signing up with the Union,"
and that he was "going to be injured in some way or [his] head was
going to be broken."
In all the circumstances, including the fact that the Respondent is
a family enterprise, "Tippie's" close family relationship with all the
officers of the Respondent, and the similarity between his remark, to
the effect that his father would cause the employees trouble because
he "knew a lot of people," and a remark made by Sales Manager
Schreibman to the same effect, we find that the employees were given
reason to believe that "Tippie" was speaking for management, and
CONTINENTAL MOTORS, INC. 1077
that he was, in fact, acting as a management agent. By his unlawful
interrogation and threats, therefore, we find that the Respondent fur-
ther violated Section 8 (a) (1) of the Act.'
2. We find, in agreement with the Trial Examiner, that the Re-
spondent discriminatorily discharged Frank Mays and Charles Raye
in violation of Section 8(a) (3) and (1), and that the preponderance
of the evidence fails to show that the discharge of Sandy Raye was
discriminatory.
3. We find, in agreement with the Trial Examiner, that the Re-
spondent refused to bargain with the Union in violation of Section
8(a) (5) and (1) of the Act. We find merit, however, in the excep-
tions of the General Counsel and the Charging Party to the Trial
Examiner's finding that it was unnecessary to determine whether the
strike, which began on March 20, 1963, was an unfair labor practice
strike as alleged in the complaint. As the record establishes that the
strike was caused and prolonged by the Respondent's refusal to bar-
gain and its other unfair labor practices, we find that it was an unfair
labor practice strike.2
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, with the following modifications : 3
1. Substitute the following for the first paragraph :
Upon the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the Na-
tional Labor Relations Board hereby orders that the Respondent,
Continental Motors, Inc., its officers, agents, successors, and as-
signs, shall :
2. Modify provision 2(c) in accordance with footnote 36 of the In-
termediate Report.
3. Delete the last paragraph and add the following:
IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the Respondent violated the Act by conduct other than that
found to be violative herein, be, and it hereby is, dismissed.
, Fiore Brothers Oil Co., Inc ., 137 NLRB 191. Accord : N.L.R B. v. 0. U. Hofmann,
0. F. Hofmann , and Phillip Hofmann t/a 0. U. Hofmann & Sons, 147 F. 2d 679 (C.A. 3),
enfg. 55 NLRB 683; Bridgeton Transit, 123 NLRB 1196, 1197.
2 We shall adopt the Trial Examiner's recommendations with regard to The Remedy,
except that April 15, the date the Respondent 's offer of reinstatement became effective,
shall be substituted for April 11; the date the letters offering reinstatement were sent,
for purposes of tolling backpay, which shall be computed in the manner described in
F. W. Woolworth Company, 90 NLRB 289, with 6 percent interest as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
1 The notice shall be modified in accordance with footnote 37 of the Intermediate Report.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
On March 20, 1963, Local 259, United Automobile , Aerospace , and Agricultural
Implement Workers of America , AFL-CIO, herein called the Union , filed charges
against Continental Motors, Inc., Great Neck, Nassau County, New York, herein
called the Respondent . The General Counsel I issued a complaint on April 30,
1963. In substance the complaint alleges that since about March 15, 1963, the
Respondent has refused , upon request , to recognize the Union or to bargain col-
lectively with it as the exclusive collective -bargaining representative of the Re-
spondent 's employees in an appropriate unit, although the majority of them had
selected the Union as their bargaining agent; that since about March 15, 1963, the
Respondent has interfered with, restrained , and coerced its employees in certain
specified respects ; and that on or about March 15, 1963, the Respondent discharged
its employees Frank Mays, Charles H. Raye, and Sandy Raye, and failed and refused
to offer them reinstatement until on or about April 11, 1963, because they joined
and assisted the Union and engaged in other concerted activities . It is alleged that
this conduct violated Section 8(a)(1), (3 ), and (5 ) of the National Labor Relations
Act, as amended ( 61 Stat. 136), herein called the Act . Thereafter the Respondent
filed an answer denying the material allegations of the complaint.
Upon due notice, a hearing was held before Trial Examiner Sydney S. Asher, Jr.,
on June 10, 11, and 12, 1963, at New York, New York. All parties were represented
and participated fully in the hearing. Briefs have been filed by the General Counsel
and the Respondent ; they have been duly considered.
Upon the entire record in this case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and it is found that the Respondent is,
and at all material times has been , engaged in commerce as defined in the Act, and
its operations meet the Board's jurisdictional standards ; 2 and that the Union is, and
at all material times has been, a labor organization within the meaning of the Act.
A. Events leading up to the strike
The Respondent maintains a showroom for new cars on one level and a main-
tenance and repair shop on a lower level . At all material times Philip Bonacorsa
was president of the Respondent ; Sol Schreibman ( also referred to in the record as
Mr. Lee ) was sales manager ; and Michael Bonacorsa was secretary and service
manager. The parties stipulated , and it is found , that at all material times these
three individuals were supervisors and agents of the Respondent.
On March 13. 1963, the only shop employees in the Respondent 's service depart-
ment were Frank Mays and Sandy Raye , porters; Richard Falke and John Nienstedt,
mechanic 's helpers; and Charles H. Raye , class A mechanic. On that date each of
these five employees signed and delivered to Fred Velez, union representative, a card
applying for membership in the Union and designating the Union as his exclusive
bargaining agent.
On Friday , March 15,3 about 1 p.m., Velez went to the Respondent 's showroom
where , accompanied by Nienstedt , he introduced himself to Philip Bonacorsa. Velez
stated that the Union represented a majority of the employees in the Respondent's
shop and requested recognition of the Union as their bargaining representative.
Bonacorsa asked Nienstedt if all the men were in favor of the Union, and Nienstedt
answered that they were. Bonacorsa replied that it was up to the men if they
wanted to join the Union , but that he wanted to consult his attorney . Velez warned
Bonacorsa not to discharge any employees in the meantime . Bonacorsa responded
that he intended to discharge Charles H. Rave for being slow . He asked Nienstedt
if Charles H. Raye was a slow worker , and Nienstedt agreed that Rave was slow.
Velez suggested that if he could speak to Raye, the matter might be resolved.
1 The term "General Counsel" refers to the General [Counsel of the National Labor Re-
lations Board and his representative at the bearing.
2 The Respondent is a New York corporation with its principal office and place of busi-
ness in Great Neck, Nassau County , New York It Is a Rambler agency engaged in the
retail sale , distribution, service , and repair of new and used automobiles and related
products . During the year 1962 the Respondent 's gross revenues exceeded $ 500000.
During the same period , the Respondent purchased goods and materials valued at more
than $50 , 000, which were transported to its place of business directly from sources outside
the State of New York.
3 All dates herein refer to the year 1963.
CONTINENTAL MOTORS, INC. 1079
Bonacorsa said that if Raye would work more rapidly, he could stay. He gave
Velez and Nienstedt permission to talk to Charles Raye.4 Velez and Nienstedt
went downstairs to the shop and began talking to Charles Raye. Schreibman then
asked Velez to leave and he did so; Nienstedt returned to work.
Between 1 and about 5 p.m that day there were a number of conversations between
certain employees and certain representatives of management concerning the Union;
these will be described in more detail herein. Friday is the end of the Respondent's
workweek and the employees were customarily paid their weekly wages about 5 p.m.
This was done on March 15 by Schreibman.5 At that time Schreibman discharged
Charles H. Raye and Sandy Raye under circumstances set forth below. He also
had a conversation with Mays, the nature and contents of which will be considered
hereafter. That evening Velez sent a telegram to the Respondent which was received
on Saturday, March 16. It read: "THIS IS TO CONFIRM OUR REQUEST FOR
RECOGNITION OF LOCAL 259 UAW AFL CIO ON MARCH 15, 1963." So
far as the record reveals the Respondent did not answer this telegram.
Of the five former employees, only Nienstedt and Falke were at work on March 18.
That night all five met with Velez and instructed him to seek the reinstatement of
Charles H. Raye, Sandy Raye, and Mays. On the next morning, March 19, Velez,
accompanied by Nienstedt, requested Philip Bonacorsa to recognize the Union, to
reinstate Charles H. Raye, Sandy Raye, and Mays, and to stop what he described as
Schreibman's "intimidation" of employees. Bonacorsa refused, stating that "he
didn't want a union in the shop." Velez warned that these were unfair labor prac-
tices and that if they continued the Union would strike the Respondent. Bonacorsa
replied that the Union could do what it thought best.6 Velez left On the same
day the Union filed with the Board a petition in Case No. 2-RC-12609 seeking to
represent the Respondent's shop employees in the service department, with certain ex-
clusions not here material.
B. Interference, restraint, and coercion before the strike
1. By Philip Bonacorsa
The complaint alleges, and the answer denies, that Philip Bonacorsa interrogated
the Respondent's employees on March 15 concerning their membership in, activities
on behalf of, and sympathy for the Union; and threatened them on March 15 and 19
with discharge, physical harm, and other reprisals if they became or remained union
members or assisted or supported the Union.
Between 2:30 and 4 p in. on March 15, Philip Bonacorsa asked Mays: "What is
this about a Union? Did [you] sign up?" Mays admitted that he had joined.
Bonacorsa then asked: "Do you want to continue working for Continental Motors9"
Mays answered that he did.7 I consider Bonacorsa's question, "Do you want to
continue working for Continental Motors9" in the context of interrogation about the
Union, a veiled threat that continued adherence to the Union by Mays could cause
his discharge. Such a threat violates Section 8(a)(1) of the Act. Moreover, the
interrogation of Mays with regard to his joining the Union, coupled as it was with
a threat, constituted an additional violation of Section 8(a)(1) of the Act. I find
no evidence that Philip Bonacorsa uttered any illegal threats on March 19, or that
he at any time threatened employees with physical harm.
2. By Schreibman
The complaint alleges, and the answer denies, that Schreibman engaged in the
same activities ascribed to Philip Bonacrosa on March 15 and 19.
A The findings of fact regarding this conversation are based upon a synthesis of the
testimony of Velez, Nienstedt, and Philip Bonacorsa. Whenever the testimony of Velez
and Nienstedt conflicts with that of Bonacorsa, I do not credit Bonacorsa. He impressed
me as an evasive and unreliable witness. On the other hand, Nienstedt impressed me as
a forthright and candid witness
5 The testimony is in dispute as to whether it was unusual for this task to be performed
by Schreibman I deem the matter immaterial
9 The findings of fact regarding this conversation are based upon the testimony of Velez
and Nienstedt To the extent that Philip Bonacorsa testified that he might have denied
the layoff of Mays, it is not credited as too vague and uncertain.
7 The findings of fact regarding this conversation are based upon Mays' testimony,
corroborated in part by that of Philip Bonacorsa While Bonacorsa admitted questioning
Mays about signing with the Union, lie denied telling Mays he would be discharged because
he joined the Union.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 15 at the close of the day Falke went to the office to get paid. Schreib-
man, who was there, asked Falke whether he had joined the Union. Falke replied
that he had. Schreibman pointed out the disadvantages of the Union, stating that
it "was run by gangsters and . offered no benefits at all." Falke related the
reasons why he favored the Union, then left.8 A short while later Nienstedt came
into the office to get his pay. Schreibman asked him why he wanted to join the
Union. In reply, Nienstedt described some of his grievances regarding working
conditions. A discussion ensued, during which Schreibman referred to the Union's
officials as "crooks," "racketeers," and "hoodlums." He stated that Philip Bona-
corsa "was a powerful man [who] knew a lot of people, and that if [the employees]
tried to get the Union in, [they] were just inviting trouble." During this conversa-
tion, Falke returned to the office and expressed his opinion that "the Union would
benefit" the employees.9
While many of Scheibman's remarks constituted expressions of opinion pro-
tected by Section 8(c) of the Act, his warning that if the employees tried to get the
Union in they were "inviting trouble" falls in a different category. Coupled as it
was with the statement that Philip Bonacorsa "was a powerful man," it constituted
a veiled threat that Philip Bonacorsa would visit reprisals upon the employees if
they supported the Union. As such, it violated Section 8 (a) (1) of the Act. How-
ever, there is no evidence that Schreibman uttered any threats on March 19, or ever
threatened an employee with bodily harm.
Let us turn now to Schreibman's interrogations of Falke and Nienstedt on March
15. The questioning of Nienstedt occurred in the same conversation with the illegal
threat described above. Therefore this interrogation of Nienstedt constituted a
separate violation of Section 8(a)(1) of the Act. When questioning Falke about
his union membership, Schreibman neither stated that he needed this information
to verify the Union's majority claim nor assured Falke that there would be no
reprisals against union members. Accordingly this interrogation also was coercive
and violative of Section (a) (1) of the Act.1°
3. By Philip Bonacorsa, Jr.
Philip Bonacorsa, Jr., herein referred to as "Tippie," is the son of Philip Bona-
corsa and the nephew of Michael Bonacorsa. At all material times he was a sales-
man in the Respondent's employ. The complaint alleges, and the answer denies,
that Tippie engaged in the same type of conduct attributed to his father on March
15 and 19.
Before making findings with regard to Tippie's activities, it is necessary to ascer-
tain his status. The complaint describes him as an "agent and supervisor of Re-
spondent." At oral argument, the General Counsel posed the issue as follows:
"Can the company be held responsible for the statements of Tippie?" He bases
his claim of Tippie's agency on the small size of the enterprise ("it's a family type
of setup"), Tippie's close blood relationship to the Respondent's officers, and the
decision in the Fiore case." I cannot agree. Fiore is clearly distinguishable on its
facts. There the Board found proof that "Bartholdi was chosen by Respondent
Company" as its agent. No such evidence is present here. It is accordingly found
that the General Counsel has failed to establish that Tippie was, at any material
time, an agent or supervisor of the Respondent. The Respondent therefore is not
answerable for his conduct.
4. By Michael Bonacorsa
The complaint alleges, and the answer denies, that on March 15 and 19 Michael
Bonacorsa threatened the Respondent's employees with discharge, physical harm,
and other reprisals if they became or remained union members, or assisted or sup-
ported the Union.
About 4 p.m. on March 15, Nienstedt and Michael Bonacorsa were on a road-
test together. Bonacorsa asked Nienstedt if he had joined the Union and Nienstedt
replied that he had. When Bonacorsa asked why, Nienstedt explained his reasons
for favoring the Union. Bonacorsa then remarked: "I don't know why you do
8 The findings of fact regarding this conversation are based upon Falke's testimony. To
the extent that Falke testified that Schreibman promised that he would speak to Philip
Bonacorsa and "something will be done about the working conditions," it is not credited
as too vague, uncertain, and self-contradictory.
9 The findings of fact regarding this conversation are based upon Nlenstedt' s testimony,
corroborated in part by that of Falke and Schrelbman.
10 P-M Garages, Inc. et at., d/b/a P-hf Parking System, 139 NLRB 987.
"Fiore Brothers Oil Go., Inc., 137 NLRB 191, enfd. 317 F. 2d 710 (C.A. 2).
CONTINENTAL MOTORS, INC. 1081
these things . You are only getting yourself involved with a bunch of gangsters
and you are going to get in trouble." 12 I do not consider this remark a threat of
reprisal by the Respondent . Rather I look upon it as a prediction that, without
regard to any act by the Respondent , the "gangsters" who held union office would
cause the employees "trouble." As such, it constituted an exercise of free speech
protected by Section 8(c) of the Act.
Sometime after 5 p.m. Nienstedt and Falke were repairing a flat tire near the
service entrance . Michael Bonacorsa came over to them and again asked Nienstedt
why he wanted to join the Union . Nienstedt replied that the men "felt it was for
the best ." Bonacorsa then remarked : "Any organization that was involved with
'spiks' and 'niggers' couldn 't do [the employees ] any good." 13 While I do not
condone Bonacorsa 's attempt to stir up racial prejudice , I am convinced and find
that this remark contained no threat of reprisal by the Respondent but was instead
an expression of opinion within the ambit of Section 8(c) of the Act . It therefore
did not violate the Act.
The record is devoid of evidence that Michael Bonacorsa uttered any threats
on March 19, or that he threatened any employees with physical harm at any time.
C. The discharge of Mays
1. Facts
Frank Mays began working for the Respondent on February 13, 1963, as a porter,
sometimes referred to in the record as a car polisher . He was hired at a starting
wage of $65 per week, and was promised a raise after 3 or 4 weeks if his work proved
satisfactory . Admittedly , he was a good worker.
Along with the other shop employees in the Respondent 's service department,
Mays signed a union card on March 13 and handed it to Velez. As related above,
on March 15 , Philip Bonacorsa illegally interrogated Mays about his union member-
ship, and warned him that continued adherence to the Union could cause his
discharge.
Between 4 and 4:30 p.m. Schreibman prepared and had typed a letter for Mays'
signature which stated that Mays had signed the union card "under duress."
Schreibman put it in his desk. About 4:40 p.m. Schreibman summoned Mays to
his office and asked him if he had joined the Union . Mays replied that he had.
Taking the prepared letter from his desk, Schreibman read it to Mays and asked
him to sign it. Mays refused. Schreibman asked: "Do you want to continue to
work for Continental Motors?" and Mays replied : "Yes." Schreibman stated:
"You must not. So get out." Schreibman then handed Mays his pay envelope,
which contained an increase of $5 per week , and said: "I gave you a raise and
now I have to take it back." Mays left the office , taking the full pay envelope
with him.14
On the morning of Monday , March 18, Mays did not report for work. Neinstedt
remarked to Michael Bonacorsa that the two porters, Mays and Sandy Raye,ls
were missing . Bonacorsa replied that "they weren't with us." On Tuesday, March 19,
Mays again did not come in to work and was seen by Schreibman sitting in his car
in front of the Respondent's premises.
2. Contentions and conclusions
The complaint alleges, and the answer denies, that the Respondent discharged
Mays on March 15 because he joined and assisted the Union and engaged in other
concerted activity. In this connection , the General Counsel contends that when
Schreibman told Mays to "get out" he discharged Mays. The Respondent , however,
maintains that Mays was never discharged , but voluntarily quit his employment.
12 The findings of fact regarding this conversation are based upon Nienstedt ' s undenied
testimony . Bonacorsa admitted asking Nienstedt if he had joined the Union
13 This finding is based upon Nienstedt 's uncontradicted testimony . According to Falke,
Bonacorsa ' s words were : "What are you guys, doing, hanging around with these 'spiks'
and 'niggers' from the Union 9 They will never do you any good"
14 The findings of fact with respect to this conversation are based upon the testimony of
Mays . Schreibman testified that he had two separate discussions with Mays about the
Union on March 15, one about 3.30 p in. and the other about 5 p in. I deem it un-
necessary to decide whether there had in fact been a conversation between Schreibman
and Mays concerning the Union on March 15 prior to the one described by Mays.
Schreibman denied that he told Mays to get out . His denial in this respect was not
convincing and is not credited.
16 As related above, Sandy Raye had been discharged on March 15.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The words "get out," spoken by an employer to an employee, do not invariably
connote a permanent severance of the employer-employee relationship.16 Whether
a discharge has occurred necessarily depends not on the use of these two words in a
vacuum, but rather the entire surrounding circumstances in which they are spoken.
Here, Mays had refused to sign a letter repudiating his joining of the Union, where-
upon Schreibman stated that this indicated Mays' unwillingness to continue work-
ing for the Respondent. This was followed immediately by the words "get out."
The only reasonable interpretation of such an order, issued in such a context, is that
Mays was to leave the Respondent's premises and not come back. In short, he was
discharged. Mays so understood; 17 the fact that he did not report for work there-
after attests to that.
The Respondent argues that it never intended to discharge Mays. Indeed,
Schreibman testified that he was surprised when Mays failed to come in the follow-
ing Monday. I do not credit this testimony. If Schreibman had really not intended
to discharge Mays, a good worker, it would seem logical that he would have made
an effort to contact him to explain that Mays had evidently misinterpreted the words
"get out"-which the Respondent's brief maintains were ambiguous. At the very
least, Schreibman would have talked to Mays on Tuesday, March 19, when he saw
Mays sitting in a car outside the shop. Schreibman's failure to do so is, in my
opinion, highly significant. For the above reasons I conclude that the language
used by Schreibman on March 15 reasonably conveyed the meaning that Mays was
discharged; that Mays so understood; and that Schreibman so intended.
Why then did the Respondent so abruptly discharge a satisfactory employee,
even before any attempt had been made to obtain a replacement? We start with
the Respondent's antagonism to the Union. This is amply demonstrated by the
illegal interrogations and threats described above, Schreibman's pressure on Mays
to repudiate his union membership, Schreibman's derogatory remarks about the
Union's leadership, and Michael Bonacorsa's attempt to stir up racial prejudice
against the Union.18 Next, we note that Mays' union membership became known
to Philip Bonacorsa through his illegal interrogation of Mays on March 15. As soon
as Philip Bonacorsa discovered this, he immediately warned Mays that continued
adherence to the Union could bring about his discharge. This was no idle threat.
Finally, within a few hours, Schreibman prepared a repudiation for Mays' signature
and asked him to sign-under the circumstances virtually an order or ultimatum.
When Mays refused he was forthwith and unceremoniously discharged. This se-
quence of events convinces me, and it is found, that Mays was discharged by the
Respondent on March 15 because of his known membership in and support of the
Union, and particularly his resistance, in defiance of Philip Bonacorsa's warning, to
the demand that he sign the letter of revocation prepared by Schreibman. Such
conduct violated Section 8(a) (1) and (3) of the Act.
D. The discharge of Sandy Raye
1. Facts
Sandy Raye was hired by the Respondent as a porter on February 14, at wages
of $65 per week. From a few days after his employment began, Schreibman was
dissatisfied with the quality of his work. Although Schreibman instructed Raye
16 See, e g , Gala-Mo Arts, Inc, 113 NLRB 1, enfd as modified 232 F. 2d 102 (C.A 8).
17 The Respondent's brief states: "It was not until after he heard that S Raye had
been terminated by Schreibman that he assumed he was meant to be discharged." But
Mays testified:
Q (By Mr ALBERTS) Mr Mays, when did you feel you had been fired?
A When Mr. Lee [Schreibman] talked to me
The Respondent's brief also argues: "If Mays had interpreted these words to mean he
was discharged, It is submitted that he never would have stood in the open doorway for
10 minutes while Schreibman was speaking to S. Raye " But the record clearly shows
that Mays was waiting for Sandy Raye to give Raye a lift home.
11 This is not related critically, but merely as a statement of fact. The Respondent
had, of course, a legal right to express resentment toward the Union's attempt to organize
its employees, so long as It engaged in no conduct proscribed by the Act N.L R B. v.
T. A McGahey, Sr., et al, d/b/a Columbus Marble Works, 233 F. 2d 406, 409 (CA. 5).
However, "antiunion bias and demonstrated unlawful hostility are proper and highly sig-
nificant factors for Board evaluation in determining motive." N.L.R.B. v. Dan River
Mills, Incorporated, Alabama Division , 274 F. 2d 381, 384 (C.A. 5).
CONTINENTAL MOTORS, INC. 1083
how to prepare cars, new cars which he was supposed to clean came through in a
condition Schreibman considered unsatisfactory.
Early in March the Garden City Police Department informed Philip Bonacorsa
that they were holding Sandy Raye. Bonacorsa was told: "If you want him, send
$15 over and we will release him to you." Bonacorsa did so. Also early in March,
Philip Bonacorsa received a report from Schreibman that a finance company had
telephoned and indicated that Sandy Raye's wages might be garnished. About the
same time Philip Bonacorsa asked Mays about the quality of Sandy Raye's work.
Mays replied that Raye was not doing his work properly, and that he (Mays)
"was tired of carrying" Raye.
On March 11 Philip Bonacorsa, after conferring with Schreibman and Michael
Bonacorsa, decided to replace Sandy Raye. However, in accordance with the Re-
spo;ldent's practice in the absence of unusual circumstances, it was determined not
to discharge Raye until a replacement for him had been obtained. On March 13
Sandy Raye, with the other shop employees, signed a union card. On the same
day Philip Bonacorsa interviewed Jesse Pharr and hired him as a porter. It was
understood that Pharr was to begin work on Monday, March 18. Philip Bonacorsa
then told Schreibman that a replacement for Sandy Raye had been hired and in-
structed him to discharge Raye at the end of the workweek.
Shortly before 5 p.m. on March 15 Sandy Raye went to the office to get his pay.
Schreibman, who was there, paid him and said: "We are going to have to lay you
off." Raye asked the reason. According to Raye, Schreibman answered: "We have
to lay you off for a while because things are slow." According to Mays, who over-
heard the conversation, Schreibman replied: "I am laying you off because you are
working too slow. And we will call you back." According to Schreibman, he
explained: "I have to lay you off, Sandy, your work is not up to par." Ray re-
quested a layoff slip; Schreibman told him to come back the following Monday to
obtain one. Raye then left. Raye did not return to the Respondent's shop on
Monday, March 18, for the layoff slip. On March 19-one day later than agreed
upon-Pharr commenced working for the Respondent as a porter.
2. Contentions and conclusions
The complaint alleges that the Respondent discharged Sandy Raye on March 15
because he joined and assisted the Union and engaged in other concerted activity.
The General Counsel, in his brief, contends that Sandy Raye "was discharged as part
of the Respondent's attempt to destroy the Union's majority, and avoid bargaining
with the Union." The answer, as amended orally at the hearing, admits that the
Respondent discharged Raye on March 15, but denies that the reasons for doing so
were discriminatory. In its brief, the Respondent maintains that Sandy Raye "was
discharged for reasons other than any union activities on his part "
The General Counsel stresses the Respondent's union animus, the absence of prior
warning, and the timing of Rat'e's discharge only a few hours after the Union's first
demand for recognition. While these factors give rise to suspicion, they are, in
my opinion, more than overcome by the unsatisfactory nature of Sandy Raye's work
performance during the less than 4 weeks from his hire until March 11. Moreover,
the record clearly demonstrates that the decision to discharge Raye and its imple-
mentation by obtaining a replacement 19 were both accomplished and completed at a
time when the Respondent did not know of its employees' interest in the Union.
Obviously, then, these actions could not have resulted from antiunion motivation.
I conclude that the General Counsel has failed to establish that the reasons for the
Respondent's discharge of Sandy Raye were discriminatory.
E. The discharge of Charles H Raye
1. Facts
Charles H. Raye commenced to work for the Respondent on January 28. His
immediate superior was Michael Bonacorsa. Raye was rated as a class A mechanic-
the only one in the shop-and was paid $100 per week. He was the only employee
qualified to repair automatic transmissions. He was admittedly a slow worker.
11 The General Counsel contends that "Pharr was not intended to replace S. Raye,
but . . . to be an additional employee" This is based upon the fact that Pharr was told
that the Respondent needed "additional men " However, the record shows that this
statement was made by Joseph Bonacorsa, who is not connected with the Respondent and
whose utterances are therefore not binding on the Respondent. Consequently, in dis-
agreement with the General Counsel, I find that Pharr was hired as a replacement for
Sandy Raye.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 8 a customer named Pinkovitz brought his car to the Respondent's
shop for repair of the automatic transmission. The work was assigned to Charles
H. Raye. He repaired the transmission and the car was returned to the customer.
About March 5 a Chevrolet was brought to the shop for relining of its brakes. The
work was assigned to Charles H. Raye 2° When the work was completed the car
was taken over by the owner. But the next day it was back again. Checking
revealed that the rear brake linings had been erroneously installed on the front
wheels, while the front linings had been put on the rear wheels; in brief the linings
had been installed backward. On March 8 the Pinkovitz car, on which Raye had
repaired the transmission, came back with the transmission burned out. On March 11
the transmission was taken apart and Michael Bonacorsa determined that the trouble
was due to Raye's failure to repair the transmission properly when the car had
been in the shop in February. Michael Bonacorsa conferred that day with Philip
Bonacorsa and Schreibman. He told them: "I have had it. This is it. You have
got to get rid of this guy. I have had a belly full of him." Philip Bonacorsa di-
rected Schreibman to run a newspaper ad for a mechanic. On that day or the
next, an order for an ad was telephoned to a newspaper. The ad was published
on March 14, 15, and 16.
Meanwhile, on March 13, Philip Bonacorsa interviewed Don Foster and hired
him in a capacity to be discussed below. It was agreed that Foster would report to
work in the middle of the following week.
It will be recalled that when Velez visited the Respondent's premises about 1 p.m.
on March 15, Philip Bonacorsa mentioned his intent to discharge Charles H. Raye.
A discussion ensued between Bonacorsa, Velez, and Nienstedt, which has been
related above; Velez and Nienstedt then conferred with Raye. About 5 p.m. that
day, Schreibman gave Raye his pay and told Raye he was laid off. Raye responded
that he did not need the job, and that he was going to Florida to work in motels.
They shook hands and Raye left?i
2. Contentions and conclusions
The complaint alleges that the Respondent discharged Charles H. Raye on March 15
because he joined and assisted the Union and engaged in other concerted activity.
The General Counsel concedes that the Respondent inserted a legitimate ad for a
mechanic in the newspaper at a time when it had no knowledge of any union ac-
tivities. He argued at the hearing: "Assuming arguendo that the company intended
to replace Charles Raye, they would not have discharged him on March 15th, had
it not been for the advent of the Union." [Emphasis supplied.] This is so, urges
the General Counsel in his brief, because Foster was not hired as Raye's replacement,
and the "Respondent's policy is not to discharge a man until there is replacement
unless there is violence or theft."
The answer, as orally amended at the hearing, admits that on March 15 the Re-
spondent dismissed Charles H. Raye from its employment, but denies that such
conduct was discriminatorily motivated. In its brief the Respondent maintains that
"C. Raye was discharged because he was a poor worker and not because of any union
activity." In support of its position, the Respondent contends that Foster was hired
as a replacement for Raye, at a time before the employees' interest in the Union had
become known to the Respondent.
Unquestionably , Raye was a slow workman and his performance on the job did
not satisfy Michael Bonacorsa. Thus, prior to March 15, Bonacorsa told Nienstedt
that Raye "was working very slow." And Raye's errors on the Pinkovitz trans-
mission and the Chevrolet brakes were considered serious enough by Bonacorsa
to cause him, in his own words, to "blow[ing] my fuse." There can be little doubt
that on May 11 the Respondent determined to discharge Charles H. Raye and
that, as the Union was not yet on the scene, this decision was reached without re-
gard to union activities . Furthermore , the decision was implemented by the run-
ning of an ad, which the General Counsel concedes was legitimate , for a mechanic
to replace Raye, and Philip Bonacorsa made the decision known to Velez on
March 15. But, as the Respondent's policy inhibited the discharge of an employee
under normal circumstances until a replacement had been obtained, the question
arises whether, on March 15, the Respondent had then obtained a replacement for
20 Raye testified that he had help on this job. Presumably this referred to Falke and
Nienstedt, both of whom were mechanic's helpers
' The findings of fact regarding this conversation are based upon a synthesis of the
testimony of Schreibman and Charles H. Raye.
CONTINENTAL MOTORS, INC. 1085
Raye. It is clear that Foster had been hired on March 13 before the Respondent
was aware of the Union's advent. Thus the issue narrows down to: Was Foster
hired on March 13 as a replacement for Charles Raye?
The circumstances of Foster's hire do not support the Respondent's position that
he was intended to be Raye's replacement. First of all, according to Nienstedt's
credited testimony, Raye's "main job in the place was as a transmission man"; yet
Philip Bonacorsa knew, when he hired Foster, that Foster could not repair auto-
matic transmissions. Secondly, Raye had been paid $100 per week, whereas Foster
was hired at a wage of $80 per week-the same as that paid to mechanic's helpers
Falke and Nienstedt. In the third place, at the interview of March 13, Philip
Bonacorsa told Foster be needed a mechanic's helper, and that he was hiring Foster
as such 22 Finally, after Foster was hired, the Respondent took no steps to cancel
its newspaper ad for a mechanic.
Later events further indicate the lack of merit in the Respondent's contention that
Foster was intended to replace Raye. Foster reported for work on March 21.
In April the Respondent rehired a former class A mechanic, Sam Spragis, at a
salary of $120 per week. Spragis could repair automatic transmissions. Between
March 15, when Raye was discharged, and sometime in April, when Spragis was
rehired, no automatic transmissions were repaired in the Respondent's shop; all
such work received was contracted out to some other repair shop. Moreover, al-
though Philip Bonacorsa testified that he hired Foster with the intention of sending
him to a school to learn about automatic transmissions, this was not done when the
opportunity presented itself.23 I conclude that Spragis, not Foster, was the replace-
ment for Charles H. Raye. Thus, had the Respondent adhered to its usual practice
in normal situations, Raye would not have been discharged on March 15, but would
have been retained until Spragis was hired in April.
What, then, caused the Respondent to discharge Raye prematurely? In the light
of the Respondent's union animus, the threats to and interrogation of its employees,
the virtually simultaneous discriminatory discharge of Mays,24 and the timing of
Charles H. Raye's discharge, I am convinced and find that effectuation of the already
determined-upon discharge of Charles H. Raye was accelerated on March 15 in
reprisal for the employees' support of the Union and as part of the Respondent's
attempt to undermine the Union's majority.25 This conduct was violative of Section
8(a)(1) and (3) of the Act.
F. The refusal to bargain
1. The appropriate unit
The complaint alleges, and the answer as amended by stipulation admits, that all
shop employees in the service department of the Respondent, excluding office em-
ployees, salesmen, professional employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of the Act 2s It is so found.
=I Thus Foster testified: "We [Foster and Pharr] was talking to him, and he said he
needed a porter and a mechanic's helper." [Emphasis supplied.] And Philip Bonacorsa
testified:
Q. . . . Was he [Foster] told that he was being hired as a mechanic?
A. I would believe he was hired as a mechanic's helper.
Q Did you have a mechanic hired when you let Charlie Raye go?
A. No, sir [Emphasis supplied ]
23 At first, Philip Bonacorsa testified that he had sent Foster to automatic transmission
school. Later, he testified that he intends to send Foster to school, but "that class
hasn't come up." But Michael Bonacorsa testified that the school was held in mid-April
and that Spragis, not Foster, was sent
24Here, as in NLRB v. Jamestown Sterling Corp, 211 F. 2d 725, 726 (C.A. 2), "the
unexplained coincidence of time with respect to the principal events was no coincidence
at all, but rather a deliberate effort by the management to scotch the lawful measures of
the employees."
25
The Respondent introduced testimony tending to indicate that, on March 14, Philip
Bonacorsa ordered Schreibman to discharge Charles Raye at the end of the week To the
extent that this testimony placed the issuance of such an order as having occurred oil
March 14 rather than on March 15, it was not convincing and is not credited.
=8 This is the same unit as that sought in the Union's petition in Case No. 2-RC-12609.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union's majority status
As mentioned above, on March 13 there were five employees in the unit de-
scribed above. On that date, each of them signed and delivered to Velez a card
applying for union membership and designating the Union as his exclusive bargain-
ing agent. These cards were introduced in evidence at the hearing and each em-
ployee took the witness stand and identified his signature. It is accordingly found
that the Union is, and at all times since March 13 has been, the exclusive representa-
tive of all employees in the above-described -unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment, and other
conditions of employment.
3. The Union's demands and the Respondent' s refusals
It will be recalled that on March 15, Velez asked Philip Bonacorsa for recognition
of the Union as bargaining agent for the employees; Bonacorsa replied that he
wanted to consult his attorney. The request for recognition was repeated in a
telegram sent by the Union, which the Respondent received on March 16 and failed
to answer. On March 19, Velez reiterated the request for the Union's recognition;
this time Bonacorsa responded that he "didn't want a union in the shop." The
Respondent concedes that on or about March 15, 16, and 19, the Union requested
the Respondent to recognize it and to bargain collectively with it as the exclusive
representative of the employees in an appropriate unit (the one described above).
It is abundantly clear from the Respondent's ignoring of the telegram and Philip
Bonacorsa's reply to Velez on March 19 that these requests were refused by the
Respondent. I so find.
The Respondent, in its brief, contends that "Bonacorsa's refusal to recognize the
Union was based on a good-faith doubt as to whether the Union represented a
majority of the service shop employees." I cannot agree. At not time did any
representative of the Respondent express any doubt of the Union's majority or
request the Union's representatives to show proof of it, except on March 15 when
Philip Bonacorsa asked Nienstedt (the Union's steward) if all the men were in
favor of the Union and Nienstedt replied that they were. Any lingering doubt which
may have remained was dispelled that day when Philip Bonacorsa qeustioned Mays,
and Schreibman interrogated Falke and Nienstedt. After that the Respondent
knew with certainty that at least three employees-a majority of the five in the
unit-desired the Union to represent them. Of further significance in this regard
is Bonacorsa's answer to Velez' demand for recognition on March 19 that he did
not want a union in the Respondent's shop.
The most revealing indication of the Respondent's motivation for refusing to
recognize the Union is found in the Respondent's conduct. Within a few hours
after the first demand by the Union, the Respondent threateed Nienstedt andl Mays,
attempted to pressure Mays into signing a repudiation and discharged him for refus-
ing to do so, and accelerated Charles Raye's discharge in retaliation for the em-
ployees' support of the Union. Under all the circumstances here present, I conclude
that the Respondent refused to recognize the Union on March 15 and ever since not
because of any good-faith doubt of the Union's majority status, but in order to
gain time in which to dissipate and undermine the Union's majority 27 The Re-
spondent was thereby remiss in performing the duty of recognition imposed upon
it by Section 8(a)(5) of the Act, and thereby also violated Section 8(a)(1) of
the Act.
G. The strike and following events
On March 20 Nienstedt and Falke went out on strike.28 This left Pharr as the
only shop employee in the service department who reported for work that day.
The Union placed pickets at the Respondent's premises, bearing signs which read:
"WE PROTEST Discharge of Employees of Continental Motors-WE DEMAND
REINSTATEMENT-Local 259, UAW, AFL-CIO, 377 Broadway, N.Y.C., WO
6-1920" and "This Employer is Guilty of Unfair Labor Practices-Please Do Not
Patronize Local 259, UAW, AFL-CIO, 377 Broadway, N.Y.C, WO 6-1920." From
time to time on and after March 20 Nienstedt, Falke, Mays, and Sandy Raye en-
gaged in the picketing Despite the strike and the picketing, the Respondent con-
tinued to operate, adding Foster and Spragis to its staff, as previously related.
27 Jell Silk Mills, Inc. v N L.R.B , 185 F 2d 732, 741-742 (C A.D.C.) ; and Mid-Neat
Towel & Linen Service, Inc, 143 NLRB 744
28 The complaint alleges, and the answer denies, that the strike "was caused and pro-
longed by the unfair labor practices of Respondent " I deem it unnecessary to decide
whether the strike was so caused or prolonged.
CONTINENTAL MOTORS, INC. 1087
On April 11, while the strike was in progress, the Respondent wrote to Charles H.
Raye, Sandy Raye, and Mays by certified mail informing them that their former jobs
were available under the same conditions as previously prevailed, and requesting
them to report to work on April 15.29 None of them did so. On May 9 the Union
sent a telegram to the Respondent which read:
THIS WIRE CONSTITUTES AN UNCONDITIONAL OFFER ON THE
PART OF ALL YOUR EMPLOYEES TO RETURN TO WORK. ADVISE
IMMEDIATELY WHEN YOU WISH EMPLOYEES TO REPORT TO WORK.
The picketing ceased on May 10. On May 13 the Respondent's attorney wrote to
Velez confirming an agreement that Nienstedt, Falke, Mays, and Sandy Raye would
return to work. On May 14 Mays and Nienstedt returned to work, and on May 20
Sandy Raye returned to work. The parties stipulated that neither Falke nor Charles
H. Raye desires to return to work for the Respondent.
H. Interference, restraint, and coercion during the strike
1. By Philip Bonacorsa
The complaint alleges, and the answer denies, that on March 22 and 25 Philip
Bonacorsa threatened the Respondent 's employees with discharge , physical harm,
and other reprisals if they became or remained union members or assisted or sup-
ported the Union . There is no evidence of any such threats by Philip Bonacorsa
during the strike. The complaint further alleges , and the answer denies, that on
March 25 and 28 Philip Bonacorsa "solicited [ the Respondent 's] employees to
abandon their picketing and strike . . . and to return to work" and in connection
therewith "offered and promised [ them ] wage increases , promotions , and other
benefits."
On March 28 Nienstedt was picketing the Respondent 's premises . Philip Bona-
corsa suggested to Nienstedt that the employees "should all come back to work."
He promised to increase Nienstedt 's wages $10 or $15, to send him to school, and
to place him "in charge of the shop ... [as] head mechanic down there" and also
to "give the other boys a raise ." Nienstedt asked if the employees "could have a
union contract ." Bonacorsa replied: "No , come back without the Union ." Nien-
stedt remarked that he would have to talk to the other employees to see how they
felt about returning to work 30 On the next day Bonacorsa asked Nienstedt "what
the decision was," and Nienstedt responded that "the men wanted the Union."
It is concluded that Philip Bonacorsa 's remarks to Nienstedt on March 28 con-
tained promises of benefit designed to coerce the strikers into returning to work.
As such, they constituted further interference proscribed by Section 8(a)(1) of the
Act31 Moreover , by attempting to bargain directly with the employees thus ignor-
ing their statutory bargaining agent, and by specifying that they should return to
work "without the Union ," Bonacorsa further demonstrated his desire to undermine
the Union and his determination not to deal with the Union . Such conduct lends
further support to the finding , above, that the Respondent sought time within which
to destroy the Union's majority 32 There is , however, no evidence that Philip
Bonacorsa solicited individual strikers to return to work on March 25.
2. By Michael Bonacorsa
The complaint alleges, and the answer denies, that Michael Bonacorsa engaged
in the same conduct during the strike as that attributed to Philip Bonacorsa.
On March 25 Nienstedt, Mays, and Falke were picketing the Respondent's
premises. Michael Bonacorsa suggested to Mays and Falke. "Why don't you drop
the picket signs and come in. Leave Johnny [Nienstedt] out there." They replied
that they would not return to work without Nienstedt. Bonacorsa then stated:
=0 The letter addressed to Mays was returned to the Respondent unclaimed and unopened
30 The findings of fact regarding this conversation are based upon Nienstedt's testimony
Philip Bonacorsa at first testified that "we were talking about additional dollars" and that
the conversation was limited to the employees going to school to improve tlienisel^ es. On
cross-examination Bonacorsa admitted that he asked Nienstedt to return to woik and that
he offered to send Nienstedt to school if he came back to work, but denied offering him a
raise I do not credit his denial in this respect
81 Henry Verscharen, d/b/a. Verscharen's Food Centers, 110 NLRB 1475, 1476.
8=Compare Federal Dairy Company, Inc, 130 NLRB 1158, 1172
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Whether the Union comes in there or not we will still stay on your back ... even
if I have to plant some tools in your tool box and get rid of you." 33
Michael Bonacorsa's above-quoted remarks clearly contained a threat that, if the
employees persisted in their refusal to abandon the Union, they would be discharged
upon trumped-up pretexts. These statements were intended to coerce the employees
into returning to work and therefore constituted further violations of Section 8(a) (1)
of the Act. And, like Philip Bonacorsa's remarks to Nienstedt described above,
they were a further indication of the Respondent's intransigence in refusing to
recognize the Union under any circumstances; hence they further underscore the
Respondent's bad faith. However, I find no evidence that Michael Bonacorsa violated
the Act on March 28.
3. By Schreibman
The complaint alleges, and the answer denies, that Schreibman engaged in the
same conduct during the strike as that attributed to Philip and Michael Bonacorsa.
The General Counsel did not elicit any testimony from his own witnesses on this
phase of the case. However, Schreibman testified, as a witness for the Respondent,
that, 2 or 3 weeks after the strike began, Nienstedt came to his office and discussed
with him certain working conditions that Nienstedt wanted improved; that Schreib-
man remarked: "If you had any complaints about any conditions you should have
talked to me before"; that Velez came in during the conversation and asked what
was going on; and that Schreibman replied: "We are just having a general conversa-
tion about different things."
Schreibman's vague and sketchy version of this conversation was neither cor-
roborated nor enlarged upon by any other witness. I deem it insufficient, standing
alone, to support a finding that Schreibman on this occasion violated any provision
of the Act.
THE REMEDY
It will be recommended that the Respondent cease and desist from the unfair
labor practices which it has committed. As the violations of the Act found to have
taken place are persuasively related to other unfair labor practices proscribed by
the Act, the danger of their commission in the future is to be anticipated from
the Respondent's past conduct. It will therefore be recommended that the Respond-
ent cease and desist, not only from the unfair labor practices found, but also from
in any other manner infringing upon the rights of its employees guaranteed in
Section 7 of the Act.
Affirmatively it will be recommended that the Respondent make whole Frank
Mays and Charles H. Raye for any loss of pay they may have suffered by reason
of the discrimination against them by paying to each of them a sum of money equal
to that which he would normally have earned from March 15, 1963, the date of
his discharge, to a terminal date discussed below, less his net earnings during the
said period. In Frank Mays' case, the backpay period shall be tolled on April 11,
1963, the date when the Respondent dispatched to him an unconditional offer of
reinstatement34 In Charles H. Raye's case, the backpay period shall be tolled on
April 11, 1963, the date when the Respondent dispatched to him an unconditional
offer of reinstatement, or on the date in April 1963, when the Respondent rehired
Sam Spragis as a class A mechanic, whichever date is earlier 35 The backpay pro-
vided for herein shall be computed on a quarterly basis in the manner established
by the Board. It will further be recommended that the Respondent preserve and,
upon request, make available to the Board, all records needed to facilitate the calcula-
tion of the amount of backpay due hereunder. It will further be recommended that
the Respondent, upon request, bargain collectively with the Union as the exclusive
representative of the Respondent's employees in the appropriate unit with respect
to wages, hours, and other conditions of employment, and embody any agreement
reached in a signed contract. Finally, it will be recommended that the Respondent
post appropriate notices.
Upon the basis of the above findings of fact, and upon the entire record in this
case, I make the following:
=The findings of fact regarding this conversation are based upon a synthesis of the
testimony of hays, Falke Michael Bonacorsa, and Nienstedt, who overheard it Bonacorsa
admitted asking Falke and Hays "How about you guys coining back to work""
'' As the letter was sent by certified mail and was properly addressed, it tolls the back-
pay period even though Hays failed to receive it Denson Electric Co., Inc, 133 NLRB
122; and The Rollash Corporation, 133 NLRB 464.
'Mount Hope Finishing Company, at at, 106 NLRB 480, 500, enforcement denied
211 F. 2d 365 (C.A 4)
CONTINENTAL MOTORS, INC . 1089
CONCLUSIONS OF LAW
1. Continental Motors, Inc., is, and at all material times has been , an employer
within the meaning of Section 2(2) of the Act.
2. Local 259, United Automobile, Aerospace and Agricultural Implement Workers
of America, AFL-CIO, is, and at all material times has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Frank
Mays and Charles H. Raye, thereby discouraging membership in the labor organiza-
tion named above, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
4. All shop employees in the Respondent's service department, excluding office
employees, salesmen, professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. Local 259, United Automobile, Aerospace and Agricultural Implement Workers
of America, AFL-CIO, is, and at all times since March 13, 1963, has been, the
exclusive representative of all employees in the above-described unit for the purposes
of collective bargaining within the meaning of Section 9 (a) of the Act.
6. By refusing on and after March 15, 1963, to bargain collectively with the above-
named labor organization as the exclusive representative of the employees in the
above-described unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
7. By the foregoing conduct, and by other conduct interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
8. The above-described unfair labor practices tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce, and constitute unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
9. The General Counsel has failed to establish that the Respondent discriminated
against Sandy Raye within the meaning of Section 8(a) (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, I accordingly recommend that the Respondent Con-
tinental Motors, Inc., Great Neck, Nassau County, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 259, United Automobile, Aerospace and
Agricultural Implement Workers of America, AFL-CIO, or any other labor organiza-
tion, by discriminating against its employees in regard to their hire or tenure of
employment or any term or condition of their employment.
(b) Interrogating its employees with regard to their union membership, sympathy,
or activities in a manner violative of Section 8(a) (1) of the Act.
(c) Threatening its employees with reprisal because of their membership in,
sympathy for, or activity on behalf of any labor organization.
(d) Attempting to persuade its employees, by threats of reprisal or promises of
benefit, to cease engaging in a lawful strike, picketing, or other concerted activities.
(e) Refusing to bargain collectively with Local 259, United Automobile, Aero-
space and Agricultural Implement Workers of America, AFL-CIO, as the ex-
clusive bargaining representative of all shop employees in its service department, ex-
cluding office employees, salesmen, professional employees, guards, and supervisors
as defined in the Act.
(f) In any other manner interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed them in Section 7 of the Act, except as per-
mitted by Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the above-named Union as the ex-
clusive representative of all employees in the unit described above with respect to
rates of pay, wages, hours, and other terms and conditions of employment, and
embody in a signed agreement any understanding reached.
734-070-04-vol. 145-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole Frank Mays and Charles H. Raye for any loss of earnings they
may have suffered by reason of the discrimination against them in the manner set
forth above.
(c) Post at its premises at Great Neck, Nassau County, New York, copies of the
attached notice marked "Appendix." 36 Copies of such notice, to be furnished by the
Regional Director for the Second Region, shall, after being signed by a representative
of the Respondent, be posted immediately upon the receipt thereof, and be main-
tained 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 the Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(d) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps the Respondent has taken to comply herewith 37
It is further recommended that the complaint herein be dismissed insofar as it
alleges that the Respondent discriminated against Sandy Raye.
36 If this Recommended Order should be 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. If the Board's Order should be enforced by a decree of a United
States Court of Appeals, the words "A Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "A Decision and Order"
aT If this Recommended Order should be adopted by the Board, this provision shall be
modified to read: "Notify the said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, you are notified that:
WE WILL NOT discourage membership in Local 259, United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any
other union, by discriminating against our employees in regard to their hire or
tenure of employment or any term or condition of their employment.
WE WILL NOT question our employees about their union membership, sym-
pathy, or activities in a manner violative of Section 8(a)(1) of the National
Labor Relations Act.
WE WILL NOT threaten our employees with reprisal because of their member-
ship in, sympathy for, or activity on behalf of any union.
WE WILL NOT, by threats of reprisal or promises of benefit, attempt to per-
suade our employees to stop engaging in a lawful strike, picketing, or other
concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization , to form unions, to
join or assist Local 259, United Automobile, Aerospace and Agricultural Im-
plement workers of America, AFL-CIO, or any other union, to bargain collec-
tively through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring union membership as a
condition of employment as permitted by Section 8(a)(3) of the National
Labor Relations Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL bargain collectively, upon request, with Local 259, United Auto-
mobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO,
as the exclusive bargaining representative of our employees in the unit described
below with respect to wages, hours, and other working conditions and embody
in a signed agreement any understanding reached. The unit is:
All shop employees in our service department , excluding office em-
ployees , salesmen, professional employees , guards, and supervisors as
defined in the National Labor Relations Act.
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, ETC. 1091
WE WILL make whole Frank Mays and Charles H. Raye for any loss of pay
suffered because of the discrimination against them.
All our employees are free to become , remain , or refrain from becoming or re-
maining members of the above-named or any other union , except to the extent
that such right may be affected by an agreement requiring union membership as a
condition of employment as permitted by Section 8(a) (3) of the National Labor
Relations Act, as modified by the Labor -Management Reporting and Disclosure
Act of 1959.
CONTINENTAL MOTORS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-If any of the above -named employees should be currently serving in the
Armed Forces of the United States, we will notify him of his right to full reinstate-
ment after discharge from the Armed Forces, upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of 1948.
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.
Anyone having questions concerning this notice or compliance with its provisions
may communicate directly with the Board 's Regional Office, Fifth Floor, Squibb
Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500.
Retail Clerks International Association , AFL-CIO, Retail Clerks
District Council No. 20 , AFL-CIO, Local 635, Home Furnish-
ings Employees Union , R.C.I.A., AFL-CIO and J . W. Mays,
Inc. Case No. O-CP-412. January 17, 1964
DECISION AND ORDER
On October 10, 1963, Trial Examiner Joseph I. Nachman issued
his Decision in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, Respondents and the General Coun-
sel filed exceptions to the Decision and supporting briefs and the
Charging Party filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 Decision
and the entire record in this proceeding, including the exceptions and
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
145 NLRB No. 110.