Cross Island Oldsmobile, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1970

181 N.L.R.B. 628 (N.L.R.B. 1970)

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cross Island Oldsmobile , Inc. and Local 868 - aff.
with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America . Case 29-CA-1705
March 10, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
the Regional Director of the National Labor Relations
Board for Region 29, issued a complaint and notice of
hearing alleging that Cross Island Oldsmobile, Inc ,
hereinafter called Respondent, had engaged in unfair labor
practices in violation of Section 8(a)(l), (3) and (5) of the
National Labor Relations Act, hereinafter called the Act.
The General Counsel and the Respondent timely filed
briefs with me.
Upon consideration of the briefs of the parties and
upon the record in this case,' and my observation of the
witnesses, I make the following:
On November 18, 1969, Trial Examiner James T.
Barker issued his Decision 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 Trial Examiner's Decision. He
further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended dismissal as to them.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting
brief. The Respondent filed an answering brief to
the General Counsel's exceptions and a brief in
support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursui nt to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order, the
Recommended Order of the Trial Examiner, and
orders that Respondent, Cross Island Oldsmobile,
Inc., County of Queens, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner: This matter was
heard at Brooklyn, New York, on September 15, 16 and
19, 1969, pursuant to a charge filed on June 12, 1969, by
Local 868, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, hereinafter called the Union. On July 31, 1969,'
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is and has been at all times material herein,
a New York corporation engaged in the retail sale and
servicing of new and used automobiles and related
products. At all material times Respondent has
maintained its principal office and place of business in the
County of Queens, City and State of New York.
During the calendar year immediately preceding
issuance of the complaint herein, the Respondent in the
course and conduct of its business operations derived gross
revenues in excess of $500,000 During the same period of
time Respondent, in the course and conduct of its business
operations, purchased and caused to be transported and
delivered to its place of business, automobiles and parts,
and other goods and materials valued in excess of $50,000,
of which goods and materials valued in excess of $50,000
were transported and delivered to its place of business in
interstate commerce directly from States of the United
States other than the State of New York.
Upon these admitted facts I find that Respondent is
and has been at all times material herein an employer
engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local 868, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America is admitted to be a labor organization within the
meaning of Section 2(5) of the Act and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues formed by the pleadings in this case are (1)
whether the Respondent acted unlawfully within the
meaning of Section 8(a)(5) of the Act in declining to
recognize the Union as bargaining representative of its
salesmen and insisting upon a Board conducted election;
(2) whether certain statements of supervision and certain
modifications effectuated by the Respondent in the work
procedures and benefits of employees in the
collective- bargaining unit immediately following the
Union's demand for recognition violated Section 8(a)(1) of
the Act, and (3) whether Respondent violated Section
8(a)(3) of the Act by discharging two of its automobile
salesmen.
All references herein are to the calendar year 1969
'The Respondent 's motion to correct the record is granted
181 NLRB No. 92
CROSS ISLAND OLDSMOBILE, INC.
B. Pertinent Facts
1. Respondent's operations
Chris de Neergaard is Respondent's vice president and
George Mott and John Weber are, respectively,
Respondent's general sales manager and service manager.
,Contiguous to the structure which houses the automobile
salesroom and the offices and service garage of
Respondent, is the used car sales lot which has a frontage
of approximately 275 feet and a depth of approximately
150 feet.
At times pertinent herein Respondent employed four
automobile salesmen whose principal duty was to sell new
automobiles. As an incident to this, they were authorized
to sell used automobiles of Respondent as the opportunity
and occasion arose. Warren Klauber and Archibald
Sassen, the alleged discriminatees, were two of the
salesmen and Edward Storey and Irwin Tucker completed
the sales complement The salesmen were not salaried but
were compensated solely by commissions.
2. The organizational efforts
a The pay proposal
In mid-May the salesmen approached George Mott,
sales manager, concerning a revision of their pay and
benefit schedules. Included in their proposal was a request
for a weekly salary to be augmented by commissions.
Mott was not receptive to their suggestions and rebuffed
them. Soon thereafter, Vice President de Neergaard
circulated among the four salesmen a handwritten
comparison chart which, in effect, labeled the
Respondent's existing pay and benefit package as
equitable and competitive and which exhorted the
salesmen to greater efforts as a means of increasing their
own compensation. The textural material of the
comparison chart which de Neergaard circulated labeled
as "ridiculous" the fringe benefit proposals which the
salesmen had advanced to Mott and contained the
suggestion that "the dissatisfied [salesmen] seek
employment elsewhere."
b The union meeting
Subsequently, on May 29, the four salesmen met with
Donald Bruckner business representative of the Union.
Bruckner spoke to the salesmen and informed them that if
they desired the Union to represent them as
collective-bargaining agent they would have to fill out an
application form and pay the initiation fees. He further
informed the salesmen that he would notify the Company
by telegram that the employees had designated the Union
as their representative and would seek an appointment
with the Company to negotiate a contract. Bruckner
further asserted that he would meet with the Company
and endeavor to obtain recognition but that if recognition
was not accorded the Union he would file a petition with
the National Labor Relations Board and seek an election
Thereafter, during the meeting each salesman executed an
application for membership form which also designated
the Union as his representative for the purpose of
collective bargaining. A check was submitted to Bruckner
by the employees representing the full amount of their
initiation fee.
c. The bargaining demand
629
Thereafter, on June 2, the Union sent the following
telegram to Respondent
THIS IS TO ADVISE YOU THAT WE REPRESENT THE
MAJORITY OF YOUR AUTOMOBILE SALESMEN EMPLOYEES
AND REQUEST AN EARLY APPOINTMENT FOR THE
PURPOSE OF NEGOTIATING A COLLECTIVE-BARGAINING
AGREEMENT.
The telegram was received by Respondent on June 2,
shortly before 4 p.m.
The telegram came to the attention of Chris de
Neergaard at approximately 4 p.m., when it was handed
to him by George Mott. de Neergaard and Mott discussed
the matter and soon thereafter de Neergaard placed a
telephone call to Attorney James Dean and informed
Dean of the demand telegram An appointment was made
for a conference between Dean and de Neergaard the
following morning By letter dated June 3, Respondent
declined to recognize the Union, asserting a good faith
doubt and demanding certification by the Board as a
precondition to granting recognition
d. de Neergaard comments on the Union
During the week of June 2, de Neergaard informed
John Weber that the salesmen were seeking union
representation. Two days later he informed a gathering of
service employees, in the presence of Weber, that the
salesmen "wanted to join the union." de Neergaard
recounted to the service employees that 3 years earlier the
salesmen had worked on a salary plus commission and
had sought and received a change to straight commission.
de Neergaard further observed that now that sales had
dropped off the salesmen wanted to go back on salary
plus commission. de Neergaard stated he had no
objections to the salesmen being represented by the
Union.'
3. Interference, restraint, and coercion
a. The demonstrators recalled
In the meantime, on the afternoon of June 2, following
the Respondent's receipt of the union telegram, and
intervening between the discussion which de Neergaard
had with Mott concerning the Union's demand and de
Neergaard's later telephone conversation with his attorney
James Dean, a written notice was placed on the bulletin
board by de Neergaard which stated, in substance, that
the company demonstrators which were in the possession
of the salesmen were to be turned in by June 9. The
instructions contained in this notice, however, were
countermanded by a subsequent notice placed on the
bulletin board on June 9 which read.
We have received a notice of conference from the
N.L.R.B. for Wed 6-11. As a result, turning in
company cars will be postponed until Thurs. 6-12.
This deadline, however, was in turn suspended by a notice
posted on June 11 which read as follows:
We have been advised of a postponement of the
N.L.R B. hearing scheduled for today.
'Called as a witness by the General Counsel John Weber credibly
testified to the foregoing event
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have also been advised of a claim by Local 868
of unfair labor practices and another hearing.
In view of the above and even though we feel a
better price can be had now for Co. cars, and we still
have not resolved questions brought to our attention by
our insurance co., we have decided to suspend the
return of company, cars until further notice.
On the late afternoon of June 2, as de Neergaard
passed the desk of Irwin Tucker preparatory to posting
the first notice concerning the return of demonstrators, he
remarked, "the Lord giveth and the Lord taketh."'
Archibald Sassen was not present on June 2 when the
original notice concerning the demonstrators was posted.
However, the following morning when he reported to
work and observed the notice he commented to Mott
concerning the matter. He inquired of Mott what the
salesmen would "do now." Mott answered that he
surmised that the salesmen would walk.'
At the commencement of the model year in late 1968,
Respondent modified its past practice and furnished
demonstrators to the salesmen. Thus, title to the 1969
demonstrator was at all times vested in the Respondent
and the Respondent bore all costs of the automobile.'
Chris de Neergaard testified that for approximately 2
weeks prior to June 2 he had given consideration to
requesting the return of the demonstrators. de Neergaard
testified that he was motivated in this consideration by
market conditions and by a report he had received from
his insurance agent suggesting adverse actuarial experience
with respect to the salesmen and their families.
Concerning market conditions de Neergaard testified
that in his sales area 1969 sales were considerably below
those of the previous year and that indices indicated that
there would remain at the end of the model year an
abundance of unsold current models. Demonstrators when
offered to the public for sale, in effect, compete with new
automobiles in stock. For the former, contrary to the
latter, the Company received no factory rebate. de
Neergaard testified that in light of these considerations he
reasoned that it would be more advantageous to offer the
demonstrators for early sale than to wait until near the
end of the model year.
'Chris de Neergaard denies having made this or any similar remark but
I credit Irwin Tucker in this regard As I observed Tucker testify at the
hearing he impressed me as a somewhat reticent witness who did not
entirely savor his stint on the witness stand Because he remained in the
employ of Respondent at the time of the hearing I am convinced that this
testimony having an adverse connotation toward Respondent , although
reluctantly given, was truthful and reliable
'The foregoing is based upon the testimony of Arphibald Sassen George
Mott did not testify concerning this incident Although I credit Sassen's
testimony to the extent that it is consistent with the foregoing , I do not
credit the balance of his testimony concerning this incident to the effect
that as he conversed further with Mott concerning the implications of this
action Mott stated that the salesmen would have to work the
transportation problem out for themselves or "just don't come in " The
pretrial affidavit of Sassen which is in evidence does not contain any
reference to this matter and, to the contrary , indicates that the
conversation between him and Mott ended abruptly with a terse comment
by Mott and with no response by Sassen This embellishment is illustrative
of a propensity on the part of Sassen - notable in other portions of his
testimony - to color and blur through a process of rationalization
otherwise accurate recitations of fact.
'In previous years, as new models were introduced , each salesman would
purchase a new demonstrator at cost and under a GMAC purchase plan
would make small monthly payments toward the automobile Near the
close of the model year, under this past practice , the demonstrator would
be returned to the dealer who would reimburse the salesmen for the cost
less certain upkeep and insurance expenditures
With respect to the insurance coverage considerations,
de Neergaard testified that approximately a week prior to
June 2 he had conversed with his insurance agent who had
informed him of the adverse actuarial record of his
salesmen and their families. de Neergaard had scheduled
an appointment with the agent for the following week to
discuss this matter.
de Neergaard further testified that when he received the,
Union's demand telegram he acted immediately to recall
the demonstrators because he concluded that unless he did
so he would risk the charge of unfair labor practices with
respect to their recall. He also testified, in substance, that
the timing with respect to the recall of demonstrators was
still flexible at the time he actually posted the first notice
on June 2 and that if he had not received the demand
telegram he "probably" would not have called the models
back until after he had spoken with his insurance agent.
de Neergaard testified that he posted the June 9 notice
deferring for a week the actual return of demonstrators to
accord him the opportunity of learning from the insurance
agent the details concerning the safety and driving record
of the salesmen and their families.
On June 11 de Neergaard again deferred the recall of
the demonstrators because he had been warned by his
attorney that the request might be construed as an unfair
labor practice, and because there was pending a
conference with the Board concerning the representation
petition that had been filed. At the June 3 demand
meeting between Union Representative Bruckner and de
Neergaard, Bruckner had commented concerning the
recall of demonstrators and on June 12, unfair labor
practice charges were actually filed by the Union alleging,
in part, violations of Section 8(a)(1) of the Act.
In past years, Respondent's salesmen had retained their
demonstrators until just before the end of the model year
and had then offered them for sale. However, the
agreement which each salesman had initialed pertaining to
the 1969 demonstrators under the revised demonstrator
ownership arrangement, had provided that the
demonstrators would be "called up for sale by the middle
of August." While some lease automobiles which were
returned by the lessees for sale by Respondent had been
offered for resale in June or July in prior years, there is
no evidence that demonstrators had been returned or
offered for sale as early as June in any past year. Each of
the four salesmen of Respondent testified affirmatively
that in their respective tenures this had not been done.
Tucker and Storey retained their 1969 demonstrators until
September.
b. Timecards instituted
Late in the week of June 2, Respondent put into effect
a timecard system whereby through use of a timeclock
salesmen were required to punch in and punch out and to
thereby record their hours of work. Prior to the
introduction of the timecard practice, Respondent's
salesmen had recorded on a weekly timesheet the total
number of outside and floor hours worked by them during
the week. On the timesheet they recorded both their "in'
and "out" time for floor and outside work and their days
off and holidays. This timesheet, in turn, was used by
management as a record to meet Wage and Hour
requirements. In actual practice, in filling out the weekly
timesheet the salesmen merely recorded their respective
normal shift hours for the week.'
'The salesmen worked a rotating shift arrangement and their reporting
CROSS ISLAND OLDSMOBILE, INC. 631
In the weeks just prior to the institution of the timecard
practice the Company had suffered a decline in production
and Chris de Neergaard had been the recipient of a
complaint from a service tester concerning the
unavailability of the sales force in the early morning hours
of the Company's operations de Neergaard had received
a similar complaint from the switchboard operator and
the complaint related to several instances when she had
been unable to obtain a response to telephone calls which
she had endeavored to transfer to the sales floor from her
switchboard position.
By reason of their work responsibilities, it was the
established practice of both de Neergaard and Mott to
work late at night and to consequently report for work
between 10 a m. and 10:30 a.m. As a result, the salesmen
whose duty hour was to commence at 9 a.m., had no one
in authority over him to check his arrival time. Each of
the four salesmen in Respondent's employ at pertinent
times testified that they followed a practice of reporting to
work punctually but, according to Tucker, there was an
occasional lapse Each testified that they had never
received any warning concerning their reporting time from
any member of management and the matter had never
been discussed at a meeting between salesmen and
management.
Archibald Sassen was notified of the timecard
requirement when he was handed a timecard by Chris de
Neergaard who said that he would like to have the
salesmen punch in and out so that management could
determine how many hours the salesmen were "really"
putting in.
Chris de Neergaard instituted the system of timecards
merely as an element of a program to provide
management with a better "control" over the sales force
and production. In this connection, in the last week of
May de Neergaard had instituted an "up book" in which
salesmen were required to record the name of customers
who had declared a serious interest in the purchase of an
automobile. In the book the salesmen was also to record
the model description and to initial the entry. It was also
the responsibility of the salesmen under this procedure to
make an entry in the book if the customer ultimately
purchased an automobile from Respondent.
c The withdrawal of stock cards
Pursuant to procedures in effect prior to the week of
June 2, Respondent maintained a visual card index system
in which was recorded for each series of automobiles those
units physically in stock and those which had been ordered
for delivery from the factory but not yet on hand. Prior to
the week of June 2 one set of this index was maintained in
the showroom while the master set was located in the
office The index maintained ►n the showroom was
identical in all respects to the master set except that the
master set maintained in the office identified units
designated for delivery pursuant to specific customer
orders.
During the latter part of the week of June 2, Chris de
Neergaard removed from the index maintained in the
showroom approximately 40 or 50 cards representing
incoming stock There remained in the index
approximately 76 cards representing automobiles presently
in stock. The counterpart of the cards contained in the
and quitting time varied each day for 4 days until the cycle commenced
again They had been instructed by de Neergaard to record their actual
hours of work
master index in the office representing the 40 or 50
automobiles incoming were not removed from the master
index '
de Neergaard testified that the master index maintained
in the office was available to the employees at all times
and that, in actual practice, employees frequently came to
the office and had free access to it. This is supported by
the testimony of salesmen themselves.
de Neergaard testified that he withdrew the cards
representing incoming units both as a protective action
against the possibility of a strike arising from the
employees' organizational efforts and as a stimulus to the
salesmen to concentrate their sales efforts on units already
in stock. With respect to the first reason, de Neergaard
testified that he was apprehensive over the possibility of
obtaining deliveries of the automobiles on order if a picket
line were established at the Company's premises and that,
as a consequence, he initiated investigative efforts to
determine whether the automobiles on order could be
diverted by the distributor to a warehouse. With respect to
the second factor - the incentive to concentrate on stock
- de Neergaard testified that he felt that it would be "a
little inconvenient" for employees to leave the sales floor
and go upstairs to the office in order to ascertain
availability of units through search of the master card
index, and that the salesmen would consequently direct
their efforts to the sale of units actually on hand
de Neergaard denied that the units represented by the
cards removed from the index in the showroom were
canceled units and further testified that under established
practice Oldsmobile would not have granted him the
option of canceling those automobiles which he had
already ordered. de Neergaard thus testified that his only
option was that of diverting the units to a warehouse He
pursued this matter with the distributor and found that a
warehouse was available to the Company in the event that
a strike became imminent.
de Neergaard further testified that the salesmen have
available to them for sale to customers not only those
automobiles presently in inventory and on order from the
factory but a reservoir of automobiles in the stock of all
Oldsmobile dealers in the metropolitan New York area
Thus a salesman may, and often does, write a customer
order for a model not presently in Respondent's stock.
While the automobile thus ordered is often obtained by
virtue of a swap between Respondent and another
metropolitan area dealer, this is not invariably so but in
virtually every case wherein a customer order is written an
automobile coinciding with his order is obtained.
de Neergaard also testified that within a day or two
after the termination of employees Klauber and Sassen -
on June 9 and 10, respectively, as subsequently considered
- he returned the cards to the index file in the
showroom. He testified, in substance, that he did so
because he had determined that he could readily divert the
automobiles to a warehouse in the event of a strike and
because with two less salesmen he and his sales manager,
George Mott, would be actively selling and they would sell
from automobiles in stock.
Soon after de Neergaard removed the cards from the
index in the showroom, Edward Storey, one of the
The foregoing is based principally upon the credited testimony of Chris
de Neergaard I have considered the testimony of employees Klauber,
Sassen and Storey concerning the number of automobiles physically on
hand during the week of June 2 and have considered their varying
estimates as to the level of inventory at that point in time to be less
reliable than the more specific testimony of de Neergaard in this respect
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
salesmen, inquired concerning the status of the
automobiles that were on order. de Neergaard answered
that he had diverted the automobiles because if the
salesmen decide to go on strike it would have been
impossible for him and George Mott to handle the
increased inventory whereas with the present inventory
they could do so.' Storey answered that the salesmen did
not intend to strike but de Neergaard answered, "How do
I know that?"
In the first week of June Respondent was reaching the
phase-out period of the sales year at which time
management could place no new orders with Oldsmobile
beyond those already placed for 1969 models. The new
model year was not to commence until mid-September.
Documentary evidence of record reveals that while 1969
sales for the first 2 months exceeded by 6 units the sales
over the like period of 1968, by the end of March 1969
sales had dropped 30 units below the level of 1968 and the
disparity between 1969 and 1968 sales became more
pronounced as the weeks went by. Sales in May 1969
dropped to 39 automobiles as contrasted to 69 units sold
in May 1968 The smallest number of automobiles sold in
any month in 1968 was 44 and this occurred in the month
of January
d Mott discusses unionism
During the first week of June and after the Respondent
had received the Union's June 2 demand telegram, George
Mott was approached by the salesmen who sought to
discuss with him the question of union representation.
Mott answered that he had been informed by other sales
managers whose agencies were unionized that a unionized
sales force proved beneficial to management. Mott also
inquired of the employees what they expected to gain from
unionization
During the week of June 2, Mott approached both
Klauber and Sassen and inquired, in substance, if there
were anything that he could personally do to resolve
matters between the salesmen and management.'°
'Chris de Neergaard testified convincingly that in speaking with Edward
Storey he stated that the automobiles had been diverted and that , contrary
to Storey 's testimony , he did not use the word canceled I credit de
Neergaard in this respect.
"With respect to the foregoing , I have considered the testimony of
Warren Klauber, Archibald Sassen and George Mott and credit their
respective testimony to the extent that it is consistent with the foregoing
findings
I specifically reject the testimony of Archibald Sassen to the effect that
Mott additionally stated during the conversation that the employees would
"simply be fired" and that the Company would have "four new faces
sitting in each [salesmen ] chair " These references were not contained in
Sassen 's June 23 pretrial affidavit in which he made specific references to
conversations which he had had with Mott concerning the Union I am
convinced that this testimony by Sassen and his testimony to the effect
that Mott observed that the Union would not be successful in organizing
the Company represent further instances wherein Sassen resorted to
embellishment That Sassen 's testimony in this latter regard was supported
by the testimony of Warren Klauber is not determinative of the issue Like
Sassen , Klauber revealed a studied willingness to attribute to company
representatives comments and conduct detrimental to the Company and
helpful to his interests in the case . That Klauber harbored hostility toward
de Neergaard that exceeded his own immediate interests in the case is
suggested by testimony of John Moltisanti which I have considered and
which I credit In essence, this testimony reveals that during the pendency
of this case Klauber contacted Moltisanti and conveyed to Moltisanti his
desire through this proceeding to "hang " de Neergaard and the Company
Moreover , the record suggests that , as he testified , George Mott had been
instructed by de Neergaard to be circumspect in his conversations with
employees concerning the Union and for Mott to have been as outspoken
e The comments of John Weber
On or about June 4, John Weber, Respondent's service
manager, approached Sassen at his desk and asked,
"What do you fellows want to fool around with the union
for." Sassen answered that it was difficult to communicate
with de Neergaard and the salesmen were hoping that
through a "third party" something could be done in this
regard. Weber responded that the Company was a small
one and that a previous effort to unionize the shop had
failed. Weber stated that employees would never have a
union and suggested that the salesmen talk the matter
over with de Neergaard."
4. The alleged discriminatory discharges
a. The 1962 Pontiac
On Wednesday, May 28, Warren Klauber spoke with
John Moltisanti and inquired if Moltisanti knew of
anyone who had an automobile for sale Klauber stated
that he desired to obtain an automobile for his wife's use,
asserting that she had an Oldsmobile which had a
defective transmission and which she wanted to sell.
Moltisanti answered that he had a friend who desired to
sell a 1962 Pontiac and that the friend wanted $150 for
it.' 2
On the following day, Moltisanti brought the 1962
Pontiac to the garage It was emitting smoke from the
exhaust and in response to Klauber's inquiry as to the
cause of this Moltisanti speculated that the automobile
might need "a valve job." Klauber had a service tester
drive the automobile and requested the service tester to
check the automobile and report to him concerning the
extent of repairs necessary to put it in satisfactory running
condition. The service tester did not accomplish this task
but in the 2 or 3 days that followed John Moltisanti did
some work on the automobile. Klauber was informed that,
in light of the work necessary to be done on the
automobile, he could obtain the automobile for $100."
The 1962 Pontiac remained on Respondent's lot
through the Memorial Day weekend and until the evening
of June 4. By the Memorial Day weekend both George
Mott and Chris de Neergaard had observed the
automobile on the lot. Mott inquired concerning the
and direct in his threats as Sassen and Klauber testify he would have
marked a departure from the balance of his conduct, as revealed by the
record
"This testimony of Archibald Sassen is not refuted
"Upon an evaluation of the testimony of George Mott and John
Moltisanti I find that the conversation between Warren Klauber and John
Moltisanti concerning the 1962 Pontiac transpired before Memorial Day
Thus, although Moltisanti evidenced some disorientation with respect to
the time relationship between this conversation and Klauber 's subsequent
termination on June 9 , he evidenced certitude with respect to the period
which elapsed between the conversation and Klauber's termination
Moreover , the testimony of George Mott , to the effect that in a routine
check of the lot incident to the Memorial Day weekend he observed the
1962 Pontiac , gives substance to the finding Thus, I do not credit the
testimony of Warren Klauber that the conversation transpired on June 2,
the day on which the demonstrator notice was initially posted by de
Neergaard
Moreover , based upon the testimony of John Moltisanti considered in
conjunction with the testimony of George Mott, I find that Klauber
attributed his wish to obtain the 1962 Pontiac to the need for a
replacement car for his wife ' s use and not, as Klauber testified, for a
replacement for his demonstrator which was to be turned in on June 9
"The testimony of John Moltisanti establishes that Klauber was so
informed
CROSS ISLAND OLDSMOBILE, INC.
automobile and was informed that it was one which
Moltisanti had brought to the lot at the request of
Klauber who wished to purchase it for his wife. In a
conversation with Mott, de Neergaard instructed Mott to
have the automobile removed from the lot, in light of the
space problem which existed. Mott conveyed these
instructions to Klauber and Sassen became aware of
Mott's instructions.' ° While on the lot the 1962 Pontiac
was parked near a wire fence in the vicinity of an area
used to park service customer vehicles. The Pontiac was
parked a substantial distance from the street which fronts
the used car lot and a distance behind the two used cars
which the Company then had on its lot.'s
b The origins of the sale
During the afternoon of Wednesday, June 4, Tony
Matinale came to Respondent's used car lot and observed
two used cars on the front line at the lot. As Matinale
proceeded toward the new car showroom he was met by
Warren Klauber. Matinale inquired concerning the two
cars on the front line and Klauber quoted the price of
each car Each was priced in excess of $1,000 and
Matinale stated that he did not wish to spend that much.
He explained to Klauber that he was'shopping for a car
for his son and desired one in the price range of $500 or
$600. Klauber directed Matinale's attention to the 1962
Pontiac which was parked near a fence in the vicinity of
automobiles belonging to service customers. Klauber
stated that he thought the automobile could be obtained
for $300 Matinale looked at the automobile which had no
license plates and informed Klauber that he would return
with his son and let his son see the automobile. He did so
that evening."
14The foregoing findings are based upon a synthesis of the testimony of
record relating to this subject matter John Moltisanti testified
convincingly that on three successive days during his lunch hour he
performed work on the automobile and he testified further that the
automobile was on the lot for approximately 8 or 9 days The testimony of
George Mott reveals that he was not aware of precisely when the
automobile was removed from the lot and the testimony of de Neergaard
is to like effect. I rely principally upon the credited testimony of John
Moltisanti in making the finding with respect to the length of time the
automobile was on the Company's lot but consider also the testimony of
Sassen and Tony Matinale which reveals that the car was transferred from
the lot to a gasoline station on or after the night of June 4
"Chris de Neergaard and Warren Klauber disagreed as to the distance
which separated the two used cars and the 1962 Pontiac but their
testimony establishes that there was a clearly discernible separation and
that the latter automobile was parked in the close vicinity of the
automobiles of service customers
"I have considered the testimony of Tony Matinale and Warren Klauber
with respect to the foregoing I credit Matinale to the effect that Klauber
directed ' his attention to the 1962 Pontiac and reject the testimony of
Klauber that Matinale voluntarily inquired concerning the automobile after
Mattnale, on his own, surveyed the contents of the used car lot I consider
it most unlikely that without prompting Matinale would have exhumed the
Pontiac from its obscure location on the lot, whereas I consider it quite
probable that in all the circumstances Klauber took the initiative in
exposing this prospective customer to a unit that fell generally within the
category of described desire . Moreover , I credit the testimony of Matinale
that a prospective price was discussed and reject the testimony of Klauber
that no price at all was mentioned Considering the purpose for which
Mattnale desired the automobile and in light , also, of typical and normal
used car bartering it is most improbable that price did not become a topic
of interest on the part of the two participants to the putative transaction
On the other hand , considering the total context of Matinale's testimony
relating to the subsequent sequence of events , and that of John Moltisanti,
Warren Klauber and Archibald Sassen , I find that Matmale returned to
the lot with his son the evening of Wednesday, June 4, and not the next
day, as Matinale testified
c. The sale consummated
1. The evening events
633
Late in the evening of Wednesday, June 4, Matinale
came with his son to Respondent's. place of business.
Klauber was engaged in a sales transaction with another
customer and Klauber requested Sassen to speak with
Matinale concerning the 1962 Pontiac. Sassen did so. The
automobile remained parked near the fence. Sassen
learned that Matinale desired the car for his son to work
on and use. Matinale requested the keys to the car and
started the engine. In the process of the discussion Sassen
informed Matinale that the car needed a valve job and
recommended it as "a perfect car for a young man."
Matinale offered $150 for the car, an offer which Sassen
rejected as "preposterous" alluding to the value of the
bucket seats and console which the car contained.
Matinale indicated that he would discuss the matter
further with his son and during the discussion, as an
inducement to quickly close the sale, Sassen proffered
Matinale the automobile registeration certificate As the
bartering continued Klauber appeared and confirmed the
asking price as $300. Matinale offered $150 and this offer
was rejected However when the discussion ended accord
had been reached on the price of $275 for the car.
Matinale stated he would return the next day to obtain
the car."
2 The car delivered
Matinale returned with his son on Thursday, June 5
This was Klauber's day off from work and Sassen handled
the transaction with Matinale. When Klauber and his son
arrived at Respondent's place of business, Sassen
informed Klauber that it had been necessary to remove
the 1962 Pontiac from the lot and they proceeded together
to a gasoline station near Respondent's lot At the
gasoline station Sassen presented Matinale with the keys
to the automobile and the registration. Sassen requested
that Matinale pay him $275 in cash and Matinale offered
to write a check to cash in the amount of $275. This was
agreed upon Some discussion ensued with respect to the
necessity of having plates on the automobile in order for
Matinale to drive the automobile to his home Matinale
"Warren Klauber and Archibald Sassen both testified, in substance, that
while they were conversing with Matinale in the used car lot on the evening
of June 4, George Mott appeared and inquired if he should lock the
showroom door Sassen, in effect, assertedly told Mott that this would not
be necessary because Matinale was looking at the 1962 Pontiac and they
would not be returning to the showroom from the used car lot The
affidavit of Sassen , which is in evidence , contains no reference to this
occurrence, although it does treat with the discussion he and Klauber had
with Matinale in the evening near closing time and with the question of
management awareness of Sassen 's used car transactions eminating from
the company used car lot, a topic subsequently considered While Mott
does not specifically deny that he appeared and inquired in the manner
described by Klauber and Sassen, he did testify that his first conscious
thought of the 1962 Pontiac following his observance of it on the lot prior
to Memorial Day, was when Matinale called him on June 9 concerning the
sales transaction , as presently recounted In the circumstances, I am
convinced that if Mott appeared at the side door during the Mattnale sales
transaction , as asserted by Klauber and Sassen , nothing transpired which
directed his attention specifically to the 1962 Pontiac or to Matinale as a
prospective customer I am convinced that , if Mott did make his
appearance , there were no pointed references by KI.iuber or Sassen of the
variety they conjured in their testimony I find, rather, that this testimony
is but a further coordinated effort by Klauber and Sassen to shore up this
case at crucial stress points
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that he would take the risks incident to driving
without plates because he lived nearby Accompanied by
his son, Matinale drove the 1962 Pontiac from the
premises of the gasoline station.18
Matinale testified, in substance, that by virtue of the
placement of the 1962 Pontiac on the Respondent's used
car sales lot he had had no opportunity to actually road
test the car, or, at least, he availed himself of no such
opportunity. He further testified that upon driving the
automobile away from the gasoline station on Thursday,
June 5, he realized that it needed more work than merely
"the valve job" that he had been informed it needed On
Friday, he had the automobile checked by a mechanic
friend who informed him that it needed substantial work.
In the meantime, also on Friday, June 6, Sassen took
the check which Matinale had given him to the bank and
endeavored to cash it The bank refused to do so giving as
the reason insufficient funds in the account upon which it
was drawn. Subsequently, during the daytime hours of
June 6 Sassen endeavored to contact Matinale by
telephone. He was unsuccessful in this effort but finally
spoke with him on Friday evening When Sassen informed
Matinale of the bank's refusal to honor the check
Matinale made certain explanations with respect to the
funds in the account and Sassen asserted that he would, as
a consequence of Matinale's explanation, endeavor to cash
the check on the following Monday. Matinale stated
however, that before Sassen proceeded to cash the check
he desired to converse with him concerning the price of
the automobile. Matinale informed Sassen that he had
had the automobile checked out during the day and that
as a result of what he had been informed concerning the
condition of the car he wanted a price adjustment. Sassen
was insistent that a sale had been completed but Matinale
persisted in his effort to secure an adjustment in the price.
The conversation terminated by Matinale informing
Sassen that he was going to return the automobile and
that he would speak to Sassen's superior and inform him
that he had sold him a bad car.
On Saturday morning Sassen informed Klauber of his
unsuccessful efforts to cash the check and of the
conversation which he had had with Matinale Thereafter,
during the morning, Matinale called Klauber and
informed Klauber that he had spoken to Sassen on the
telephone and stated that he did not want the automobile.
He asserted that he wanted his check returned to him He
stated also that Sassen had informed him that he could
not return the automobile. Klauber answered that he
could not accept the automobile and asserted that
Matinale had purchased the car. Matinale and Klauber
engaged in certain recriminations and legal action was
threatened "
During the day on Saturday Matinale spoke with the
actual owner of the 1962 Pontiac and during the course of
this conversation learned that the owner anticipated
receiving only $150 for the automobile. Thereupon, during
the day, Matinale prevailed upon his son to agree with his
decision to return the automobile. Matinale testified
credibly that the decision to return the automobile was
based solely upon what he learned concerning the
condition of the automobile and the expense involved in
repairing it, and not upon the knowledge he gained from
the conversation which he had with the owner concerning
the anticipated sale price.
a Matinale converses with de Neergaard
On Monday, June 9, Matinale consulted an attorney
concerning the automobile transaction From his
attorney's office he spoke by telephone with Warren
Klauber endeavoring again to obtain Klauber's consent to
accept the return of the automobile Klauber refused to do
so and during their conversation Klauber threatened legal
action with respect to the check.
After his conversation with Klauber had terminated,
Matinale placed a call to Respondent's place of business
and spoke with George Mott, the sales manager. He
informed Mott of the purpose of his call and in some
detail explained what had transpired with respect to the
automobile George Mott took the telephone call in the
office of Chris de Neergaard who was sitting nearby.
From overhearing Mott's comments and responses de
Neergaard detected the gist of the conversation and made
certain inquiries to Mott concerning it While Mott and
Matinale conversed on the telephone, de Neergaard placed
a separate telephone call to his attorney and explained to
his attorney the nature of the allegation which had been
leveled against Klauber and Sassen by Matinale with
respect to the sales transaction He discussed with his
attorney the advisability of effectuating terminations in
light of the then present status of union activities In the
meantime, Mott instructed Matinale to come to the office
and speak personally with him and de Neergaard.
Matinale did so and parked the 1962 automobile on the
lot of Respondent.
In the late afternoon of June 9, Matinale spoke with de
Neergaard and Mott in de Neergaard's office. He again
outlined in detail the events pertinent to the sales
transaction. He told de Neergaard that his attention had
been directed to the 1962 Pontiac by Warren Klauber,
that the salesmen had informed him that the automobile
was one which belonged to the Company and which had
been turned in in trade; that the sale was ultimately
consummated for $275, that he was led to believe right up
to the point of delivery that the automobile was one taken
"All of the foregoing with respect to the events of the evening of June 4
and those of June 5 is based upon a synthesis of the testimony of Tony
Matmale, Archibald Sassen and Warren Klauber I specifically credit
Matinale to the effect that an agreed upon purchase price for the
automobile was reached on the evening of June 4 and prior to the day on
which Matinale actually took possession of the automobile While
Matinale is an effusive individual who displayed confusion as to the details
of chronology he testified with certitude that an agreed upon price had
been reached prior to the day on which he took possession of the
automobile , and in light of Klauber's ultimate authority with respect to the
sales transaction and the pendency of his Thursday day off, I consider it
probable that on Wednesday evening a price was agreed upon and that this
matter was not left solely to Sassen 's discretion
"The foregoing is based upon an analysis of the testimony of Tony
Matinale, Warren Klauber and Archibald Sassen The testimony of each
witness is liberally laced with rationalization and inaccuracies deriving
from the respective interest in the instant litigation and from the enmities
that developed from the transaction in which each was a participant The
findings are based more upon probabilities and logical deduction as to the
chronology of what transpired than upon the intrinsic believability of any
of the three witnesses with respect to these conversations The testimony of
John Moltisanti supports the finding that Sassen endeavored on Friday to
negotiate Matinale's check and it is thus quite likely that , as Sassen
testified , he immediately endeavored on Friday to contact Matmale Thus,
contrary to Matinale and consistent with Sassen's testimony, I find that
the initial conversation between Sassen and Matinale occurred on Friday
evening Further, I do not credit the testimony of Matmale to the effect
that his first conversation with Klauber concerning the return of the
automobile transpired on Monday and while he was at his attorney's
office Rather I credit Klauber with respect to the timing of this
occurrence
CROSS ISLAND OLDSMOBILE , INC. 635
in trade; that he personally took delivery of the
automobile at a gas station; that he paid for the
automobile in cash; and that he was given a registration
signed in blank which was not properly endorsed by the
owner designated on the face of the registration. After
Matinale had completed his description of the events
surrounding the sale, he made disparaging remarks about
the salesman asserting that he had been "hustled."
Matinale inquired of de Neergaard what he could do to
return the car. He surrendered the registration to de
Neergaard. de Neergaard stated that he would endeavor
to obtain Matinale's check and return it to him. Matinale
returned the keys to the automobile and Mott went from
the office to the sales floor and tried to obtain the check
from Klauber. Klauber informed Mott that Sassen had
the check. The meeting with Matinale ended by de
Neergaard assuring Matinale that he would attempt to
return the 1962 Pontiac to its owner.
b. Permissible sales practices
de Neergaard testified, in substance, that he placed the
telephone call to his attorney during the course of Mott's
own telephone conversation with Matinale because he
could detect from what he overheard of the conversation
that his salesman had engaged in a practice clearly
unacceptable under industry standards. Consistent with
these industry standards, Respondent did not permit
salesmen to sell used automobiles for their own profit in
competition with the Company It was permissible for
salesmen to dispose at wholesale of automobiles which
they obtained for temporary use in the interim period at
the end of a model year between the turn in of their
present demonstrator and acquisition of a new one. de
Neergaard testified that while he had cooperated with
salesmen in wholesaling automobiles known as jerkers -
cars whose value is exceeded by the cost of their repair -
he had no knowledge of any instance wherein a salesman
sold a used automobile other than his own demonstrator
at retail and derived a personal profit therefrom. de
Neergaard testified, in substance, that while the 1962
Pontiac fell into the jerker class it was not an automobile
which was sold at wholesale or as an exchange between
two of Respondent's personnel but to the contrary was
one offered by his salesmen to a customer at retail and for
profit
c. Other used car sales
Over the 7 1/2 years of Sassen's employment by
Respondent, Sassen sold at retail from Respondent's lot
approximately 10 automobiles to which he had title. Five
of these were automobiles which he used in the interim
between demonstrators while five were second cars. One
of these was an automobile damaged by fire which, with
management's knowledge and assistance, Sassen sold from
the lot In 1965 he also disposed of a 1959 Volkswagen
which he purchased from the Company for $250 and
which his w;fe used for 7 or 8 months. He endeavored to
sell the car from the lot and eventually the sales manager,
Mott's predecessor, was instrumental in selling it.
Additionally, when Irwin Tucker commenced his
employment with Resondent, Sassen sold at retail from
the lot Tucker's personal automobile to enable Tucker to
purchase his first demonstrator.
During his employment Warren Klauber sold at retail
three used cars from Respondent's lot which were not
from the stock of the Company. One he sold for the
purchaser of a new automobile who had been unsuccessful
in selling his present car. Klauber paid the customer $100
for the automobile and sold it from the lot for $150. The
second automobile was a trade-in on the demonstrator of
George Mott and with Mott's knowledge Klauber sold the
trade-in personally from Respondent's lot for $100. The
third car was one which Klauber had located at a
wholesale lot for his personal purchase and Klauber had
taken possession of the car at Respondent's lot. He found
the automobile unacceptable and sold it from the lot to a
family friend.'°
d The discharge of Warren Klauber
When Matinale departed, de Neergaard summoned
Klauber to his office. George Mott was present and when
Klauber entered the office de Neergaard inquired if he
knew why Matinale had been there Klauber answered
that he did know and de Neergaard asked him what he
had to say about the Matinale matter. Klauber answered
that he had not sold the automobile from Respondent's
premises and de Neergaard interjected that he had sold
the automobile from the premises but had not delivered it
there. Klauber made no response and de Neergaard again
inquired what had happened with respect to the Matinale
transaction. Klauber answered that what had transpired
was not "so bad" whereupon de Neergaard stated that he
could not condone this action and informed Klauber that
he was discharged. Klauber answered, in substance, that
he was going to file unfair labor practice charges against
the Company. de Neergaard reiterated that Klauber was
discharged and that the matter was at an end."
e. The termination of Archibald Sassen
Sassen was not on duty on Monday and de Neergaard
had business demands which necessitated his absence from
the premises on Tuesday As a consequence, following
Klauber's termination- on Monday evening de Neergaard
instructed George Mott to speak with Sassen concerning
the Matinale transaction and to obtain his explanation of
the incident. de Neergaard instructed Mott that if he did
not obtain a reasonable explanation from Sassen to
terminate him also.
In the meantime, on Monday, Sassen had conversed
with Klauber who informed him that Matinale had visited
Respondent's office and that he, Klauber, had been
terminated Sassen reported to work on Tuesday earlier
than his scheduled 12 noon reporting time because he had
to attend to the details of a sales transaction. Mott did
"The testimony of Klauber , Sassen, Storey, and Tucker reveals that
Respondent 's salesmen sold used cars from the company lot to other
personnel of Respondent
"The foregoing is based upon the credited testimony of Chris de
Neergaard In making the foregoing findings I reject the testimony of
Warren Klauber to the effect that in response to de Neergaard 's inquiry he
gave a detailed description of the entire Matinale transaction , stressing the
fact that he had informed Matinale that the automobile did not belong to
the Company and that it required extensive repairs While the testimony of
de Neergaard and Klauber is essentially irreconcilable I am convinced that
the interview was, as de Neergaard testified, a brief encounter and I am
further convinced that Klauber , as subsequently found with respect to
Sassen , had made a determination to remain essentially moot with respect
to the Matinale transaction because he realized that the transaction had
been marked by vagaries which differentiated it from other previous used
car transactions and had decided to defend upon the ground that it was
essentially a private transaction between himself and Matinale which was
not unlike other previous used car sales from the lot of Respondent and
which had not involved the Company
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not approach Sassen immediately but deferred any
conversation with him for approximately an hour or two.
Mott then approached Sassen on the sales floor and
invited Sassen to come with him to de Neergaard's office
to speak with him concerning the 1962 Pontiac Sassen
declined and Mott asserted that the conversation was
likely to be a lengthy one and he desired the privacy of de
Neergaard's office. Sassen declined whereupon Mott
inquired what Sassen knew concerning the Matinale
transaction. He stated that Matinale had been in the
office the previous day and that he desired Sassen's
explanation. Sassen answered that he had nothing to say.
Mott stated, in effect, that that was an insufficient answer
in the circumstances and again asked Sassen what had
transpired. He remarked that Matinale had informed him
that Sassen was involved in the sale and that Klauber had
stated that Sassen had possession of the check which
changed hands. Sassen answered merely that he had
nothing to say Mott asserted that Sassen was making
things difficult for him and stated further that de
Neergaard had instructed him to obtain Sassen's version
of the story and to make a judgment as to what action to
take after hearing Sassen's explanation. Mott asserted
that by refusing to tell him anything Sassen was leaving
him no alternative. Mott insisted that Sassen must have
some defense but Sassen was adamant in refusing to
comment. Mott then stated that Sassen left him no
alternative and that he was discharged Sassen responded
that his discharge was due entirely to "unionism" and
Mott denied this. Mott stated that Klauber was a "big
boy" who had been in the business sufficient length of
time to know "what constitutes good demeanor on the
part of a salesman and what is acceptable by a house and
what isn't."
Sassen immediately telephoned his wife and informed
her of his termination, and in Mott's presence asserted
that his discharge had resulted from his union activities.
Mott intervened and stated to Sassen that this was not the
case and insisted, in substance, that he would have been
terminated irrespective of union considerations.
After his termination, Sassen called Mott by telephone
at Mott's residence and urged Mott to intervene on his
behalf in order to obtain his reinstatement The
conversation related primarily to his loss of insurance
benefits as a consequence of his termination. Sassen
asserted during the conversation that the union
organizational effort was not his idea and that he was not
enthusiastic concerning the Union. Mott, in effect,
declined to intervene concerning Sassen's termination but
asserted that his termination and the organizational effort
of the salesmen were two separate unrelated matters. He
insisted that Sassen's termination would have resulted
regardless of any union activity and stated that Sassen
should stop "drumming on this unionism thing."22
"The foregoing findings are predicated primarily upon the credited
testimony of George Mott I have considered the testimony of Archibald
Sassen concerning the interview which he had with Mott which resulted in
his termination and Sassen 's testimony relating to conversations with Mott
following his discharge . I credit Sassen only to the extent his testimony as
consistent with that of Mott . A careful evaluation of Sassen 's testimony
concerning the incident of his termination and its aftermath reveals that it
goes beyond matter contained in his pretrial affidavit and in many details
impresses me as being highly rationalized . Moreover, his testimony on
cross-examination concerning the details of Mott's statements to him at
the time of his discharge varies in significant aspects from that related on
direct examination This is attributable , I am convinced, from Sassen's
marked propensity to cast in a light most favorable to him the incidents
surrounding the entire matter of this litigation
Sassen testified that 2 days after his discharge he
returned to the Company's premises and spoke with de
Neergaard concerning commissions and a vacation which
were due him. Sassen testified that de Neergaard stated
that Sassen would receive the commissions but that he
was entitled to no vacation.
f. Alleged harassment
Earlier, during the week of June 2 and after the
Union's demand telegram, de Neergaard had approached
both Klauber and Sassen and had instructed them on the
proper mode of dress and grooming of hair. He had
spoken to them in a light vein on this subject on previous
occasions. When he spoke to Klauber he stated that he
did not like his style of dress and wanted him to abandon
his mod suits in favor of a conventional business suit He
told Klauber to shorten his hair and instructed Sassen to
trim his sideburns.23
Conclusions
The Bargaining Demand and the Union's Majority
I find that at the meeting of May 29 each of the four
salesmen comprising Respondent's sales force executed
authorization cards designating the Union as their
bargaining representative. I further find that these
authorization cards were valid and were not tainted by
misrepresentations or coercive action on the part of any
representative of the Union. Consequently, I find that at
all times since May 29 the Union has been the designated
representative of the employees in a unit appropriate for
the purpose of collective bargaining.
I further find that on June 2 the Union made a legally
sufficient demand for recognition and bargaining and that
by letter of June 3 Respondent denied their demands.
Interrogation and Coercive Comment
The General Counsel is correct in his contention that
the inquiry of Weber as to why the salesmen "wanted to
fool around with the Union" and his pronouncement that
they would "never have a union" were violative of Section
8(a)(1) of the Act. In the circumstances prevailing the
incursion upon the Section 7 guarantees of the Act derived
from his supervisory capacity and from the resultant
implication and likelihood that his prognostication of the
ultimate failure of their unionization attempt accurately
reflect the will of de Neergaard, his superior in the
management hierarchy But to find a violation of Section
Mott impressed me as a truthful witness whose personality and manner
were wholly consistent with his testimony concerning repeated efforts to
obtain from Sassen an explanation of the details of the Matinale sales
transaction That Mott was on a friendly basis with Sassen is suggested by
Mott' s testimony . Moreover , Sassen 's resort to Mott as a possible
mediator of the termination tends to support Mott's testimony that he was
solicitous in seeking Sassen 's explanation and was not vindictive.
Because I credit Mott 's testimony that in the termination incident and in
the subsequent telephone conversation with Mott, Mott denied that union
considerations had influenced the decision to terminate Sassen, I reject
Sassen's testimony to the effect that, soon after his termination, Mott
stated , in substance, that he had warned Sassen about the effects of union
activity and that his termination was merely the fruition of his involvement
in the Union It is unreasonable to assume that Mott would have
articulated these contrasting sentiments to Sassen in so brief a period of
time
"This testimony of Warren Klauber and Archibald Sassen is unrefuted
CROSS ISLAND OLDSMOBILE , INC. 637
8(a)(1) on the aforesaid bases is not to agree with the
contention of the General Counsel that this conduct
constituted "polling" unsanctioned by the criteria
established in Struksness Construction Co , Inc., 165
NLRB No. 102.
Contrary to the General Counsel, I find no violation of
Section 8(a)(1) of the Act resulting from those
conversations which George Mott had with salesmen
concerning the general subject of unionization. The
evidence of record reveals that those conversations which
he had were at the initiative of the salesmen and his
comments were not accompanied by any promise of
benefits or threat of reprisals Although during his
conversation he proffered his mediative efforts in
accommodating the interests of the employees with
management, it is to be remembered that his proffer was
in context with his observations to employees that he had
been led to believe through conversations with other sales
managers in the industry that unionization proved
beneficial to management. I am unable to read into
Mott's answers, observations and comments any inference
that he was seeking, through his remarks, to convince the
salesmen to forego union representation in anticipation of
either prospective management beneficence or punishment.
The Demonstrator Notice
However, I am convinced that, acting impulsively and
as a counteraction to the Union's demand and the
presumed activities of the salesmen in seeking union
representation, de Neergaard posted the initial notice
establishing a deadline for the return of the demonstrators
in the possession of the salesmen comprising the
bargaining unit That this was an action taken in
resentment over the apparent involvement of the salesmen
in a unionization effort, is found in the "giveth and taketh
,away" statement of de Neergaard to Tucker which was
calculated to convey the concept that management had the
power both to bestow and withdraw benefits. The posting
of the notice and the statement of de Neergaard to Tucker
concerning it transpired before de Neergaard had
consulted with his attorney and it was doubtless,
precipitous and indicative of the strong preference which
de Neergaard had for a nonunion sales force. That the
mandate of the original notice was twice postponed and
was not given ultimate effect, does not negative its
original impact de Neergaard conceded that the Union's
demand accelerated his decision to obtain the early return
of demonstrators for resale in advance of the closing
weeks of the current model year, and there was nothing in
the preliminary disclosures of his insurance agent
concerning the driving records of the salesmen and their
families as would have justified de Neergaard's initial
posting or his comments to Tucker. Nor is there anything
in the Act which would have precluded de Neergaard
upon a business judgment unassociated with union
considerations from calling for the return of the
demonstrators at a time earlier than had been his previous
practice. However, I am convinced that the earlier posting
was not made pursuant to this type of judgment, and I
find that the second posting which inferred the continued
viability of the first notice - when considered in
relationship to the comment of de Neergaard to Tucker
which gained some notoriety and currency among the
other salesmen - had the effect of restraining and
coercing the employees in the rights guaranteed under
Section 7 of the Act.
The Timeclock and the withdrawal of Stock Cards
I am differently disposed, however, with respect to the
allegations pertaining to the institution of a timeclock
system for recording the worktime of the salesmen and
the withdrawal of stock cards from the salesroom file The
evidence sustains Respondent's contention that sales were
lagging behind the previous year and there is no evidence
to counter de Neergaard's testimony that 1969 appeared
to be, from the vantage point of early June, a year
destined to close with an oversupply of current models in
stock Moreover, prior to the first union stirrings of his
salesmen, de Neergaard, in his response to the earlier
wage proposal of the salesmen had noted the "lack of
enthusiasm for aggressive selling and followup" and had
instituted an "up book" procedure for the purpose of
improving production. To be certain, as I have found, the
Union's demand letter served as the impetus for the
posting of the initial demonstrator recall notice, and de
Neergaard had acted in advance of necessity, but these
considerations do not perforce taint his entire motivation.
The evidence establishes to my satisfaction that de
Neergaard was troubled by adverse economic trends, a
decline in production and general lagardleness on the part
of his salesmen in punctually reporting at the morning
hour. In withdrawing the stock cards and in instituting a
timeclock de Neergaard took actions which were
reasonably calculated to achieve the objectives of greater
concentration on automobiles in stock and better
conformance of the salesmen to the morning reporting
requirement. These two latter actions were not different in
their ultimate objective from the "up book" system which
de Neergaard had instituted before the union activity of
the salesmen came to his attention. The credible evidence
of record does not establish that either the card
withdrawal or timeclock action was accompanied by
managerial conduct or comment calculated to give either
of these changes a punitive connotation.
It seems apparent that, in the abstract, in seeking to
arrange for a diversion of the automobiles as a palliative
to any future strike effort, de Neergaard overreacted.
However, de Neergaard's concern over the potential
impact of a strike may not be found to be entirely
ethereal; nor were salesman Storey's assurances against
employee strike intentions so absolute as to render de
Neergaard's withdrawal of the stock cards either frivolous
or vengeful. Pertinent in this context is the fact that de
Neergaard had emphasized to the salesmen that the cars
had not been diverted and thus the salesmen knew that the
card withdrawal was not the equivalent of a cancellation.
Moreover, the salesmen had ready access to the master
file, an access limited only to the extent of their curiosity
and initiative. These considerations, in my view,
substantially erode the theory that implicit in de
Neergaard's action was a threat to the earning power of
the salesmen In point of fact there was none and the
salesmen knew this.
As the stock card and timeclock actions of
management were the consequences of business judgments,
and as they were effectuated without accompanying overt
threat, I am convinced and accordingly find that, neither
their joinder nor their time relationship to the bargaining
demand of the Union was such as to render their
effectuation inherently destructive of employee Section 7
rights.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Termination of Klauber and Sassen
I find contrary to the General Counsel that the
termination of neither Warren Klauber nor Archibald
Sassen was discriminatory within the meaning of Section
8(a)(3) of the Act. Rather, I find that the termination of
each of them was for cause unrelated to their union
activity. It may reasonably be concluded that Respondent
had a high degree of certitude concerning the affinity of
both Klauber and Sassen to the Union and the
relationship of their termination to the Union's
declaration of majority status in a unit encompassing
them is apparent and gives rise to suspicion. But their
involvement in a sales transaction of a variety not
countenanced by the Company or in the trade bore even a
more proximate time relationship to their termination,
and as I view the record, it was only fortuitous that their
termination for this errant conduct coincided closely with
their union involvement.
While there is no basis for finding that de Neergaard
harbored deep hostility or animus toward the Union, it is
clear that de Neergaard preferred a nonunion sales force
and the record carefully assessed warrants the conclusion
that de Neergaard did not find entirely unpalatable the
opportunity which the Matinale sales transgressions of
Klauber and Sassen accorded him to reconstitute his sales
force, and thus to pro tanto deplete the Union's asserted
following. de Neergaard's consultation with his attorney
while Mott was still engaged in his initial conversation
with Matinale carries with it a suggestion of precipitous
haste, but de Neergaard initiated the consultation to learn
his legal rights in light of a customer complaint raising a
substantial question of ethics concerning a practice clearly
unacceptable under industry standards. As the reputation
and goodwill of his firm were being placed in issue by a
customer who himself at that very moment was in
consultation with legal counsel, de Neergaard's action in
contacting his attorney in the manner found, does not
reveal a tainted motive. Moreover, the conduct of Klauber
and Sassen in the Matinale transaction and its aftermath
were such as to reveal the justifiability of Respondent's
action and to convincingly negative antiunion motive as to
a moving cause for these terminations Thus, I find not
only that Klauber and Sassen actively misled Matinale
with respect to the condition and ownership status of the
1962 Pontiac and sought a quick profit at his expense; but
I find that management - de Neergaard and Mott -
took the action they took in bona fide belief that the
representations of Matinale given to them during this
meeting with him on June 9 constituted an accurate
accounting of the salient details of the transaction. This
accounting by Matinale contained allegations reflecting
adversely upon the ethics of the salesmen and carried with
it an implicit, if not explicit, demand for remedial action
by management. Although accorded an opportunity to
explain their respective roles, Klauber and Sassen declined
and receded instead into an enclave of reticence and
dissemblance claiming simplistically that the sale was one
in no manner distinguishable from others that had
previously and successively been given the imprimatur of
management. That this sale was not of this variety is
shown by (1) the fact that it did not purport to be and was
not, in fact, a sale of a "jerker" at wholesale, or between
personnel of the Company; (2) the fact that management
had no knowledge of transaction and had not given
advanced approval of the sale;" (3) the fact that the
salesmen sold an automobile which they neither owned
nor had authority from the owner to sell; and (4) the fact
that it was covert and consummated through actions and
in a manner raising significant ethical questions de
Neegaard testified convincingly that he did not
countenance sales from his lot at retail for the personal
profit of the salesmen; and I find that he had no
knowledge of any general practice of this type. However, I
do find that under special, controlled circumstances, and
to do equity or to aid personnel he had permitted a few
transactions. I further find that subordinate management
without specific approval of de Neergaard had permitted
an additional few transactions, as evidenced by the sale of
the 1959 Volkswagen. However, in each of these instances
the salesman held title to the car which he was selling or
management was aware of the chain of title and had given
specific clearance to the transaction. Thus, I do not
indulge the assumption, essential to the sustenance of the
General Counsel's case, that this transaction was one of a
variety to which Respondent had previously - before the
advent of the Union - given acquiescence That Klauber
and Sassen knew this sale to be illicit is indicated by the
refusal of both participants to recount for the scrutiny of
management the details of the transaction; and is strongly
suggested by the secretive manner of its ultimate
consummation - away from the premises and by cash
payment Klauber and Sassen were stimulated to remove
the automobile from the premises, I find, not in response
to the earlier urgings of management which went
unheeded but only when it became apparent to them that
the actual relinquishment of the automobile and
acceptance of payment would be more propitiously
accomplished off the premises
The burden of proving a violation of the Act is upon
the General Counsel. Beyond establishing the discharge of
union adherents closely proximate in time to the Union's
claim of majority and demand for recognition, the
General Counsel adduced no substantial evidence worthy
of credence to support the allegations of the complaint
relative to the termination of either Warren Klauber or
Archibald Sassen. Upon the proof adduced with respect to
the incidents surrounding these terminations I find that
the allegations of the complaint pertaining to them must
be dismissed in that the terminations were not
discriminatorily motivated and were not related to the
union affinity or activity of the dischargees.
The Good- Faith Doubt
The record contains no evidence from which it may be
found that when he declined to recognize the Union de
Neergaard was fortified in his declination by information
or insight affirmatively casting doubt upon the accuracy of
the Union's claim to majority status. Such evidence as
was adduced suggests that de Neergaard was philosophical
in his tacit acceptance of the fact that a portion of the
sales force was resolute in its resort to union
representation. However, de Neergaard had no
independent knowledge as to whom among the salesmen
had designated the Union. Cf Wheeler-Van Label Co..
172 NLRB No. 186, enfd 408 F.2d 613 (C.A 2).
Moreover, contrary to the General Counsel, on a record
such as this one, wherein the discussion of the Union
between employees themselves or between employees and
supervision was not shown to be either extensive or
"Sassen 's sale of his fire-damaged automobile and of Tucker's personal
auto, and Klauber's sale of the trade- in on Mott 's demonstrator were sales
out of the normal routine and were given specific and special sanction by
management essentially as cooperative efforts to assist personnel
CROSS ISLAND OLDSMOBILE, INC. 639
particularly revealing in its content, I consider the "small
plant doctrine" inapplicable. "[A]n employer is not
obligated to accept a card check as proof of majority
status, under the Board's current practice, and he is not
required to justify his insistence on an election by making
his own investigation of employee sentiments and showing
affirmative reason for doubting the majority status."
N L R.B. v Gissel Packing Co., 395 U.S. 110 "[A]n
election by secret ballot is normally a more satisfactory
means of determining the employees' wishes, although
authorization cards signed by a majority may also
evidence their desires. Absent an affirmative showing of
bad faith, an employer, presented with a majority card
showing and a bargaining request, will not be held to have
violated his bargaining obligations under the law simply
because he refuses to rely upon cards, rather than an
election, as the method for determining the union's
majority " Aaron Brothers Company of California, 158
NLRB 108. I am unable to detect from the credible
evidence of this record a predetermined tactic on the part
of the Respondent to invoke the Board's election processes
merely as a device to gain time in which to erode the
Union's following.25 The transgressions of Section 8(a)(l)
of the Act as did occur accurately reflected and were
undoubtedly symptomatic of the preference of de
Neergaard for a nonunionized sales force However the
instances of such unlawful actions were neither numerous
nor the conduct aggravated. Nor was it of a caliber
calculated to suggest to employees that management was
intractable in its opposition to the Union or that benefits
and/or tenure of employment were closely related to the
choice which the employees had made or would in the
future make concerning the question of union
representation Rather, I am convinced that neither de
Neergaard's posting of the demonstrator notice nor the
comments of Weber to Sassen was imbued with a
connotation that union representation would be a sterile
exercise or that unionization would be visited with
retributive action detrimental to the benefits or
compensation of employees. Whatever the applicability of
the law of restraint and coercion to employees generally,
the level of sophistication of Respondent's sales force was
too patently high to justify the assumption that these
combined instances would have had a deterrent effect
upon their determination to unionize The observation of
Weber was more conversational than it was edictal and
the demonstrator posting was a singular action which was
not carried to fruition or otherwise emulated.
In sum, I find that the conduct of management in these
regards was not of the nature sufficient to reveal bad faith
on the part of the Respondent. Accordingly, I find that
Respondent's refusal to recognize the Union and its
preference to place reliance upon a Board-conducted
election as the means for best determining the desires of
the employees was not violative of Section 8(a)(5) of the
Act.
labor disputes burdening and obstructing commerce and
the free flow of commerce
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative
actions designed to effectuate the policies of the Act.
Having found that the Respondent's declination to
recognize the Union and its preference to rely upon a
Board-conducted election as the best means for
determining the representation wishes of its sales force,
did not constitute a violation of Section 8(a)(5) of the Act,
and having further found that the two instances of
restraint and coercion as did transpire were not extensive,
aggravated or indicative of a retributive or closed attitude
on the part of the Respondent concerning the question of
union representation, I find that their impact on the
election machinery and processes of the Board was
minimal. Accordingly, I conclude that a bargaining order
would not constitute an appropriate remedy in the instant
circumstances and shall recommend none N L R.B v.
Gissel Packing Co , supra.
Upon the basis of the foregoing findings of fact and
conclusions and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 868 - Affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act
3. By posting a notice providing for the recall of
demonstrators and by implying the viability of this notice
by a second such posting; and by interrogating employees
as to their reason for desiring union representation and
stating that they would not be successful in having a
union, the Respondent has engaged in and is engaging in
unfair labor practices in violation of Section 8(a)(1) of the
Act
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act by terminating
the employment of Warren Klauber or Archibald Sassen,
as alleged in the complaint.
6. Respondent engaged in no conduct violative of the
Act, except as specifically found herein.
RECOMMENDED ORDER
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
"Cf Joy Silk Mills, Inc. 85 NLRB 1263, modified and enfd 185 F 2d
732, cert. denied 341 U.S 914.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
I recommend that Cross Island Oldsmobile, Inc., its
officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) For any purpose unlawful under the Act, posting
notices calling for the return of demonstrator automobiles.
(b) Interrogating its employees concerning the reason
they desire union representation or informing employees
that they would not be successful in having a union
represent them.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the right to
self-organization, to form their own labor organization, to
join or assist the Union, or any other labor organization,
to bargain collectively with representatives of their own
choosing, and to engage in concerted activity for the
purpose of collective bargaining or for other mutual aid or
protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act
(a) Post at its place of business at 206-02 Hempstead
Avenue, County of Queens, City and State of New York,
and at all other places of business where notices to
employees are customarily posted, copies of the attached
notice marked "Appendix."" Copies of the notice on
forms provided by the Regional Director of Region 29
shall, after being duly signed by a representative of the
Respondent, be posted immediately upon receipt thereof
and be maintained by it for a period of 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced or covered by
any other material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the receipt of this Trial
Examiner's Decision, what steps have been taken to
comply herewith.27
"In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions , and order, all
objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 29, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT post a notice directing our sales
employees to turn in their demonstrators when the
purpose of posting said notice is to punish them for
engaging in union activities or to in any other unlawful
manner induce them to abstain from union
organizational activities or from collective-bargaining
representation by a union
WE WILL NOT interrogate our employees as to the
reason they desire to be represented in collective
bargaining by a union
WE WILL NOT state to our employees that they will
not be successful in being represented by a union
WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise of
their rights to self-organization, to form, join, or assist
Local 868 - Aff. with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Hclpcrs of
America, or any other labor organization, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of the
above-named labor organization or any other labor
organization.
Dated By
CROSS ISLAND
OLDSMOBILE, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
16 Court Street, Fourth Floor, Brooklyn, New York
11201, Telephone 212-596-3535.