Contemporary Cars. Inc. d/b/a Mercedes Benz of Orlando and Auto Nation, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 18, 2011

12-CA-026126 (N.L.R.B. Mar. 18, 2011)

JD(ATL)–06–11
Maitland, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
CONTEMPORARY CARS, INC. d/b/a MERCEDES-
BENZ OF ORLANDO, INC., and AUTONATION, INC.,
SINGLE AND JOINT EMPLOYERS
and
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL–CIO
12–CA–26126
12–CA–26233
12–CA–26306
12–CA–26354
12–CA–26386
12–CA–26552
Rafael Aybar and Christopher Zerby, Esqs., for the
General Counsel.
Steven M. Bernstein, David M. Gobeo, and Douglas
R. Sullenberger, Esqs., for the Respondents.
David Porter and Javier Almazan, for the Charging
Party.
DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. This case was tried in Orlando, Florida,
on November 8, 9, and 10, and November 30, and December 1 and 2, 2010, pursuant to a
consolidated complaint that issued on March 31, 2010, and that was thereafter expanded by an
order further consolidating cases and amending the consolidated complaint on June 8, 2010.1
The complaint alleges that the Respondents violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act) by actions that it took during and after a successful organizational
campaign of the Union and by failing and refusing to bargain with the Union. The answers of
the Respondents deny any violation of the Act. As hereinafter discussed, I find that the
Respondents violated the Act as alleged in some of the allegations, but not in others.
On the entire record, including my observation of the demeanor of the witnesses and
after considering the briefs filed by the General Counsel and the Respondents, I make the
following2

1 All dates are in 2008, unless otherwise indicated. The charge in Case 12–CA–26126 was filed
on December 11 and amended on January 7, February 7, June 8, August 20, 2009, and March
22, 2010. The charge in Case 12–CA–26233 was filed on March 16, 2009, and amended on
March 22, 2010. The charge in Case 12–CA–26306 was filed on April 13, 2009, and amended
on June 12 and 19, 2009. The charge in Case 12–CA–26354 was filed on May 29, and
amended on June 12, 2009. The charge in Case 12–CA–26386 was filed on June 22, 2009.
The charge in Case 12–CA–26552 was filed on November 19, 2009.
2 The unopposed motion of the General Counsel to correct the transcript is granted. I have
designated it as GC Exh. 187, and it is hereby received.
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Findings of Fact
I. Jurisdiction
The Respondent, Contemporary Cars, Inc. d/b/a Mercedes-Benz of Orlando, Inc., MBO,
is a Florida corporation with an office and place of business in Maitland, Florida, at which it is
engaged in the sale, leasing, financing, repair, and servicing of new and used vehicles. MBO
annually derives gross revenues in excess of $500,000 and purchases and receives goods
valued in excess of $50,000 directly from points located outside the State of Florida. MBO
admits, and I find and conclude, that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The Respondent, AutoNation, Inc., AutoNation, admits that it is a Delaware corporation
headquartered in Fort Lauderdale, Florida. AutoNation owns over 200 vehicle dealerships and
annually derives gross revenues in excess of $500,000 and purchases and receives goods
valued in excess of $50,000 directly from points located outside the State of Florida.
AutoNation admits, and I find and conclude, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
MBO and AutoNation admit, and I find and conclude, that International Association of
Machinists and Aerospace Workers, AFL–CIO, the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
The Respondents, MBO and AutoNation, admit, in separately filed answers, “with
respect to the events covered by the [c]omplaint,” that they are affiliated business enterprises
and are jointly and separately liable for any unfair labor practices found herein. The factors
critical to a finding of single employer are interrelation of operations, common management,
centralized control of labor relations, and common ownership. See Al Bryant, Inc., 711 F.2d
543, 551 (3d Cir. 1983), cert denied 464 U.S. 1039 (1984). MBO Controller Collie Clark
explained that MBO reports sales and related information to AutoNation which maintains data
relating to the profitability of MBO and other AutoNation dealerships. Although General
Manager of MBO Clarence (Bob) Berryhill makes the decision, all discharges must be approved
by AutoNation Area Manager Pete DeVita. AutoNation’s Human Resources Manager Roberta
(Bonnie) Bonavia, at all relevant times herein, was responsible for human resources matters,
benefits administration, and employee relations. Employees at AutoNation dealerships are
subject to an AutoNation Associate Handbook. The Company’s response to the Union’s
organizing campaign was overseen by Vice President and Assistant General Counsel of
AutoNation Brian Davis who was often present at MBO and who made multiple presentations to
the employees. MBO is owned by AutoNation. The foregoing evidence establishes, with regard
to this proceeding, that MBO and AutoNation constitute a single employer. Real Foods Co., 350
NLRB 309, 334 (2007). The admissions in the answers of MBO and AutoNation that they are
jointly liable for any unfair labor practices found herein are fully supported by the record. I shall
refer to MBO and AutoNation jointly as the Company or the Respondents.
II. Alleged Unfair Labor Practices
A. Company Operations and the Appropriate Unit
The MBO dealership sells and leases new Mercedes Benz vehicles, sells used vehicles,
sells parts, and performs repairs and service upon vehicles. The sales operation includes sales
persons as well as employees responsible for matters related to sales, including financing
agreements. The service and parts component of the dealership, referred to as the “fixed
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operation,” includes service advisors, parts department employees, and service technicians.
The appropriate unit herein is:
All full-time and regular part-time Mercedes-Benz service technicians employed by
Respondent MBO at its facility at 810 North Orlando Avenue, Maitland, Florida,
excluding all other employees, office clerical employees, professional employees,
managerial employees, guards, and supervisors as defined in the Act.
In the summer of 2008, MBO had approximately 120 employees of whom about 37 were
service technicians. At the time of the hearing herein, as a result of attrition and terminations,
MBO had approximately 95 employees of whom 25 were service technicians. The service
technicians are assigned to one of three teams, the gold, green, and red teams. Each team has
a team leader, also referred to as the team foreman. The team leaders are admitted to be
supervisors as defined in the Act. In the summer of 2008, the red team leader was Bruce
Makin, the green team leader was Oudit Manbahal, and the gold team leader was Andre
Grobler. On December 9, Grobler and Manbahal l were demoted. Makin was made team
leader of the green team, Rex Strong was made team leader of the gold team, and Alex Aviles
was made team leader of the red team. Each team also has a lead technician who fills in when
the team leader is absent. Technicians are classified according to their skills from D to A. The
highest rated technician, designated as the diagnostic technician, is an A technician.
Service technicians are paid hourly, but they are only paid for work performed. When a
technician completes a job, he will place his name on a list for the next available job. Thus, the
faster and more experienced technicians typically will receive the most work. If an insufficient
number of vehicles is brought to the dealership for service or repair some technicians will be idle
and not earning any money.
Following the Union’s victory in the representation election, technicians Brad Meyer,
David Poppo, and Dean Catalano were elected as shop stewards, and the Union notified the
Company of their election by letter dated February 24, 2009.
B. Procedural History
The Company actively opposed the organizational efforts of the Union. Notwithstanding
those efforts, the Union won the representation election that was held on December 16, and
was certified as the exclusive bargaining representative of the unit employees on February 11,
2009. MBO refused to bargain, raising preelection issues including specifically the
appropriateness of the unit. On August 28, 2009, the two sitting members of the Board rejected
the Company challenge to the Union’s certification. Mercedes-Benz of Orlando, 354 NLRB No.
72 (2009). On September 3, 2009, MBO filed a petition for review of that decision with the
United States Court of Appeals for the D.C. Circuit. That case was held in abeyance pending
the United States Supreme Court’s consideration of the validity of decisions rendered by the
two-member Board. On June 17, 2010, the United States Supreme Court held that decisions by
the two-member Board were not valid. New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635
(2010). On August 23, 2010, a three-member Board panel affirmed the prior decision that the
Respondent’s preelection representation issues were without merit. Mercedes-Benz of Orlando,
355 NLRB No. 113 (2010). The Board noted, at footnote 4: “To the extent that the date of the
Certification of Representative may be significant in future proceedings, we will deem the
Certification of Representative to have been issued as of the date of this decision.” On August
25, 2010, the Board applied for enforcement of that order in the United States Court of Appeals
for the Eleventh Circuit. That case is pending.
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C. Preliminary Observations and Credibility Considerations
This is basically a straightforward case. It is complicated by the fact that most of the
statements that are alleged to violate Section 8(a)(1) of the Act were made during the response
of the Company to the organizational campaign of the Union late in 2008, some 2 years prior to
the hearing herein. Many of the statements alleged to have violated the Act were made in
meetings that the Company held with employees. There were multiple meetings that, as
employee Brad Meyer acknowledged, “all kind of blend together after that first meeting.”
I am satisfied that most of the employee witnesses sought, as best they could, to relate
what they recalled being said. Due to the manner in which statements relating to the
consequences of unionization were couched and the passage of time, I find that many
employee witnesses recalled what the Company wanted them to hear rather than what was
actually said.
Employee James Weiss is alleged to have been an agent of the Respondents. Multiple
8(a)(1) allegations in the complaint are dependent upon his testimony. Weiss had supported
the Company in two prior organizational campaigns during which Pete DeVita had been General
Manager of MBO. At the inception of the Company’s response to the 2008 organizational
campaign, on October 9, Weiss sent an email to DeVita, who was and is now an area manager
for AutoNation, stating “you have my total support.” Notwithstanding that pledge of support,
Weiss testified that he did the Company’s bidding during the campaign because of fear that, if
he did not, he would be fired and blackballed. In December, shortly before the representation
election, Weiss circulated an antiunion petition. At the hearing, Weiss testified that Davis
solicited him to circulate the petition and send it to the Union. Davis denies that he solicited
Weiss to circulate the petition or to send it to the Union. In the initial investigation of this case,
Weiss denied that he was solicited to circulate the petition or showed it to Davis. At the hearing
he clamed that those denials were untruthful. He also testified that he lied to Davis by telling
him that he had sent the petition to the Union. Weiss’ contradictory assertions of his motivation
and admissions of untruthfulness belie any reliability in his self-serving testimony.
General Manager Bob Berryhill initially testified that he learned of the union
organizational campaign on October 4 when he was informed that a representation petition had
been filed. Notes contained in his personal notebook establish that he learned of the
organizational campaign on or about September 23, a week earlier, and that between
September 25 and 30, he spoke with employees regarding their knowledge of the campaign and
what issues they had relative to their employment. His failure to admit his earlier knowledge of
the campaign and the actions that he took weigh heavily against his credibility.
Vice President and Assistant General Counsel of AutoNation Brian Davis made multiple
presentations at employee meetings. He denied using any script or outline of talking points. He
took no notes. Human Resources Manager Bonavia took notes at some meetings. The notes
were subpoenaed, but Bonavia was unable to locate them. She pointed out that the AutoNation
offices had moved. Although Davis gave various denials regarding what he did not say, his
testimony regarding what he actually did say was minimal. Davis is a skilled communicator who
said what he wanted to say the way he wanted to say it. Whether, because of the absence of a
script or notes to refresh his recollection, Davis often phrased his answers in terms of the
“typical approach that I would take,” thus not testifying to what he actually said.
Notwithstanding my foregoing concerns relating to credibility, I have credited portions of
the testimony of the foregoing witnesses. Many of the 8(a)(1) allegations herein relate to
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conversations between Weiss and Davis. As hereinafter discussed, the substance and logic of
those conversations, in most instances, result in my crediting Davis.
D. The 8(a)(1) Allegations
Paragraphs 10 through 40 of the complaint relate to specific 8(a)(1) allegations. I shall
address each allegation, setting out the paragraph number and allegation as it appears in the
complaint. I note that almost all of the allegations refer to “MBO’s Maitland, Florida, facility” and,
unless a different location is specified or the location is germane to the allegation, I shall omit
that reference.
10. Since on or about July 8, 2008, Respondents, by issuing the AutoNation Associate
Handbook to their employees employed at Respondent MBO’s Maitland, Florida facility
and at all of Respondent AutoNation’s other automobile dealerships in the United States,
has promulgated and maintained a no-solicitation rule stating in relevant part, “we
prohibit solicitation by an associate of another associate while either of you is on
company property.”
It is undisputed that the AutoNation Associate Handbook states: “[W]e prohibit
solicitation by an associate of another associate while either of you is on company property.”
The Respondents offered no business justification for the foregoing prohibition against
solicitation on employees’ own time such as during breaks or lunch. Notwithstanding the
absence of any justification for the rule, the Respondents argue that the rule as written is not
enforced. The only evidence of enforcement in this proceeding relates to the circulation of the
antiunion petition by employee Weiss. Weiss was directed not to solicit during working time.
Despite the absence of any evidence of enforcement, “the mere existence of a broad no-
solicitation rule may chill the exercise of employees’ [Section 7] rights.” NLRB v. Beverage-Air
Co., 402 F.2d 411, 410 (4th Cir. 1968), cited in Alaska Pulp Corp, 300 NLRB 232, 234 (1990).
The Respondents, by maintaining an unlawfully broad rule prohibiting all solicitation on
company property, violated Section 8(a)(1) of the Act.
11. On or about dates in late July 2008 and August 2008, more precise dates being
presently unknown to the General Counsel, Respondents, by Andre Grobler, created the
impression of surveillance of employees’ union activities.
Andre Grobler was, until December 9, team leader of the gold team, an admitted
supervisory position. In late July, as employee Juan Cazorla was preparing to leave work,
Grobler passed him and asked Cazorla why he was “in such a rush,” and then answered his
own question saying, “Oh, I guess you got that meeting to go to.” Cazorla says that he
“played dumb” and asked, “[W]hat meeting?” In fact, Cazorla was going to a union
meeting. The following month, Grobler again commented to Cazorla, “[Y]ou better rush, you
have that meeting to go to.” On that occasion, Cazorla was not hurrying to a meeting;
however, the record does not establish whether a meeting was scheduled. Grobler did not
testify. The dates and times of meetings among the employees involved in the organizational
campaign were not publically announced. The meetings were held away from the dealership.
Employees who openly expressed support for the Company, such as employee James Weiss,
were unable to learn when meetings were to be held.
The test regarding the creation of an impression of surveillance is whether, “under the
circumstances, the employee reasonably could conclude from the statement in question that his
protected activities are being monitored.” Sam’s Club, 342 NLRB 620 (2004). Grobler’s July
statement conveyed both his knowledge that a meeting was to be held and that Cazorla was
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among the employees involved with the Union. Whether Grobler, in August, assumed that
Cazorla was going to another meeting because he was hurrying does not negate the creation of
the impression of surveillance. The Respondents, by creating the impression that employees’
union activities were under surveillance, violated Section 8(a)(1) of the Act.
12. On or about September 25, 2008, Respondents, by Clarence “Bob” Berryhill,
solicited grievances from employees and impliedly promised to remedy them in order to
induce employees to abandon their support for the Union.
As already pointed out, General Manager Berryhill learned of the union organizational
activity on September 23. On September 24, AutoNation Area Manager Pete DaVita directed
Berryhill and Service Director Art Bullock “to meet with the technicians and get a feel for
what’s going on.” On September 25, they did so, calling technicians individually into
Berryhill’s office.
Berryhill’s notebook reflects that employee Anthony (Tony) Roberts was the first
technician with whom they spoke. Roberts recalls that Berryhill did most of the talking.
He informed Roberts that the Company hears that “there’s a union drive going on again,”
and “they wanted to know if there was anything they could do about it.” They asked
Roberts “if any of the technicians or me was having any trouble at the dealership that they
could help with.” Roberts mentioned that he could use “some more money or a skill level
change.” Berryhill explained that there was “a raise freeze at the time.”
The next employee with whom Berryhill and Bullock spoke was Bradley (Brad)
Meyer. Meyer recalls that Berryhill told him that the Company had heard rumors of union
activity and asked whether he had “heard anything about it or if there were any issues or
complaints . . . they needed to address as management.” Meyer replied that there had
been such rumors relating to unions since he started working there. He mentioned issues
relating to service advisors taking too long and problems with the parts department.
Berryhill replied that “those were things they were working on . . . they were in progress
and they thought they had made some changes with that.”
Berryhill, in his notebook, wrote that employee David Poppo “said that he has heard
a little bit about the Union.” Counsel for the General Counsel asked: “Mr. Poppo made
that comment in response to a question you asked him?” Berryhill answered: “Correct.”
Poppo recalled that, in his meeting with Berryhill and Bullock, Berryhill stated, “[W]e
understand there are some unhappy technicians and so, you know, we’d like to know
what’s going on see if there’s any things that maybe we could correct or, you know, help
out with.” Poppo recalls mentioning that, in his opinion, trainees Ben Wu and Patrick
Fenaughty should be promoted to technician positions.
Berryhill wrote in his notebook that employee Happy Calderon said that he had “has
heard nothing about a union.” When asked whether Calderon made that statement in
response to a question, Berryhill answered, “Let’s assume he did, yes.”
None of the foregoing employees had openly identified themselves as supporters of the
Union as of September 25. Berryhill had been unaware of the organizational activity. Berryhill’s
admitted questioning employees in his office with Service Director Bullock regarding their
knowledge of union activity was coercive. Although not offering a formal amendment to the
complaint, the General Counsel’s brief notes that the complaint alleges interrogation by Berryhill
on October 3. In view of Berryhill’s admissions, the discrepancy in date is immaterial.
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Berryhill further questioned the employees regarding any issues that they had. Prior to
Berryhill learning of the organizational campaign, issues relating to the dealership had been
presented in monthly technician advisory panel (TAP) meetings where two members of each
team of technicians would meet with management. Continuation of those meetings would not
violate the Act. See Wal-Mart Stores, Inc., 339 NLRB 1187, 1188 (2003). The meetings on
September 25 were not TAP meetings. The Respondents argue that Berryhill had an open door
policy and regularly spoke with employees. There is evidence that Berryhill often was in the
shop and would speak individually with employees. There is no evidence that Berryhill had,
prior to September 25, systematically sought to learn of employee concerns by individually
calling them into his office and questioning them in the presence of Service Director Bullock.
When Meyer identified waiting time and part problems, Berryhill assured him that MBO was
“working on” the issues he raised, “they were in progress.” Even before Poppo identified a
specific problem, Berryhill committed to “see if there’s any things that maybe we could
correct or, you know, help out with.”
The Respondents, by interrogating employees regarding their knowledge of union
activity and by soliciting their grievances and implying that they would be remedied,
violated Section 8(a)(1) of the Act.
13. On or about October 3, 2008, Respondents, by Clarence “Bob” Berryhill:
(a) Interrogated employees about their union activities and sympathies.
(b) Solicited employees to urge other employees to reject the Union.
This allegation is predicated upon testimony by James Weiss that Berryhill on
October 3, a Friday, asked if he knew what was going on and, when Weiss replied that he
did not, told him to go to the bulletin board, upon which the representation petition had
been posted, and to come back and tell him what he thought. Weiss claims that he did so
and returned, telling Berryhill that he thought it was “bullshit.” He asserts that Berryhill
informed him that some attorneys would be coming to “discuss some constructive ways to
get rid of the union” and asked if Weiss “wanted to attend that meeting.” Weiss stated that
he did.
Berryhill learned of the representation petition on Saturday, October 4, and received it on
October 6, thus it could not have been posted on October 3. He recalled that, at some point
during the week of October 6, Weiss came to his office and told him that he had been “Pete
DeVita’s right-hand person,” in a prior campaign and that he “wanted to offer his support
any way that he could to accomplish the same thing this time.” Berryhill gave no specific
response because he knew that he needed to talk “with someone with AutoNation.”
I credit Berryhill. Weiss volunteered his antiunion sentiments. Insofar as the
invitation to the meeting constituted the solicitation alleged in the complaint, I find that
General Manager Berryhill would not, without prior approval, invite an employee to an
executive meeting with attorneys. I shall recommend that this allegation be dismissed.
14. On or about dates in early October 2008 through December 2008, more precise
dates being presently unknown to the General Counsel, Respondents, by Andre Grobler,
interrogated employees about their union activities.
Employee Larry Puzon was a technician on the gold team under Team Leader Andre
Grobler. Puzon, although attending union meetings, did not openly display his prounion
sentiments. After a presentation by Davis on October 10, Grobler asked Puzon if he had gone
to a union meeting. Puzon untruthfully replied, “I just denied that I had gone to any union
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meeting.” Puzon explained that, after every meeting held by Davis, that Grobler asked whether
he had attended or was “going to attend” a union meeting and that he continued to deny
attendance “because I know he’s for management.” Grobler did not testify. I credit Puzon.
Insofar as Grobler interrogated Puzon immediately following meetings conducted by
Davis, his questioning appears to have been seeking to determine whether the Company
response to the Union was having any effect. The interrogations of Puzon, who had not openly
supported the Union, by his direct supervisor were coercive as confirmed by Puzon’s
unwillingness to reply truthfully that he had been attending union meetings. The Respondents,
by interrogating employees regarding their union activities, violated Section 8(a)(1) of the Act.
15. On or about October 9, 2008, Respondents, by their agent:
(a) Interrogated employees about their union sympathies and about the union
sympathies of other employees.
(b) Solicited employees to help Respondents discharge employees who supported the
Union.
(c) Threatened to discharge and blackball employees who supported the Union.
(d) Told employees that it would be futile to select the Union as their collective
bargaining representative.
(e) Threatened employees with a wage freeze and stricter enforcement of work rules if
they selected the Union as their collective-bargaining representative.
(f) Created the impression of surveillance of employees’ union activities.
16. On or about October 9, 2008, Respondents, by their agent, told employees that it
would be futile to select the Union as their collective-bargaining representative.
On October 9, Weiss claims to have been at the meeting to which Berryhill allegedly
invited him and that Berryhill, Davis, Bonavia, Human Resources Specialist Bibi Bickram, and
outside counsel Douglas Sullenberger were present. At that meeting he says that Davis asked
if he supported the Union and that when he answered that he did not, Davis asked who he
thought were the organizers, to which Weiss replied Tony Roberts, Brad Meyer, Dean Catalano,
Alex Aviles, and Ruben Santiago. According to Weiss, Davis asked whether he thought he
could get one of them to “take a swing at you,” and that then they could fire them and they
would be blackballed. According to Weiss, Davis then stated that it would take the Union 6
years to get a contract and that, during that period, wages would be frozen. At the end of the
meeting he claimed that attorney Sullenberger stated that “AutoNation will not bargain with the
Union.” Sullenberger, who made an appearance as counsel, did not testify.
Berryhill and Davis denied making the statements attributed to them. Berryhill, as
confirmed by Davis, pointed out that Bickram was on maternity leave. Davis met with no
employees on October 9. He testified: “I know I didn’t meet him [Weiss] on the 9th. And I
know when I first met him, it wasn’t an hour meeting, and I know Bibi Bickram wasn’t
present, and I know I didn’t say anything to James [Weiss] that he alleges that I said in
that meeting.” Both Davis and Berryhill denied that Sullenberger made the statement
Weiss attributed to him.
The October 9 meeting was the first occasion that AutoNation personnel, including
Vice President Davis and outside counsel Sullenberger, met with MBO management.
Berryhill’s approaches to employees on September 25 had provided sufficient information
regarding employee concerns for the management team to digest. Even assuming that
Weiss told Berryhill that he “wanted to offer his support” to the Company prior to October 9, I
find it incredible that the Company’s top managers and two labor relations attorneys would
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have permitted him, a rank-and-file employee, to be present at this initial consultation. Berryhill
and Davis confirmed that, on occasions during the course of the campaign when Sullenberger
was present and Weiss would come into Berryhill’s office, Sullenberger would excuse himself.
As already noted, on October 9, Weiss sent an email to Area Manager Pete DeVita, stating
“you have my total support.” If Weiss had already assured Berryhill of his support and
committed to come to a meeting to “discuss some constructive ways to get rid of the union,”
I am satisfied that he would have included that information in his email. I do not credit Weiss. I
shall recommend that paragraphs 15 and 16 of the complaint be dismissed.
Although I have recommended dismissal of the foregoing allegation, I find that Weiss,
subsequent to October 9, did identify Tony Roberts, Brad Meyer, Dean Catalano, Alex Aviles,
and Ruben Santiago as the individuals that he believed were responsible for the union’s
organizational effort.
17. On or about October 10, 2008, Respondents, by their agent:
(a) Told employees that it would be futile to select the Union as their collective
bargaining representative.
(b) Threatened employees with blacklisting if they joined or supported the Union.
(c) Solicited employees’ grievances and impliedly promised to remedy them in order to
induce employees to abandon their support for the Union.
(d) Threatened employees with loss of ice cream and various other benefits if they joined
or supported the Union.
On October 10, Berryhill and Davis conducted a meeting attended by the service
technicians as well as other employees in the fixed operation. Davis, without any specifics,
testified that he explained to the employees “here is what is going on. Here is what this
means to you. Here is what you can expect going forward.” He stated that employees
could contact him directly if they had any questions.
Virtually all witness who testified recalled that a video was shown, but there are no
allegations relating to the video. Employees Brad Meyer and Tony Roberts confirm that Davis
stated that no one was going to be fired, an untrue statement in the case of Roberts. Although
Roberts recalled that Davis referred to losing benefits such as free ice cream, Meyer recalled
that the loss of ice cream was mentioned in connection with negotiations, that Davis explained
that, once at the negotiating table, “all your benefits are on the table. . . . [I]t’s a two-way
street. . . . [Y]ou could lose a lot of things you have now that other dealerships don’t have
. . . [such as] the free ice cream.”
Meyer recalled that Davis mentioned that the employees should think about their futures
beyond MBO, that “if you go to get another job somewhere else . . . other dealers will know
about the organizing campaign here . . . because in this business . . . people talk.”
Roberts recalled Davis making a similar statement regarding “dealers talking” and also
commenting, “[W]e know who you are.” Roberts was mistaken regarding that comment.
Meyer specifically recalled that, in response to a question as to whether anyone other than
the Union would be able to see authorization cards, Davis answered that nobody would,
“It’s locked away at the NLRB in Tampa.”
Although Davis asked the employees what issues they had, at this first meeting, no
one responded. Roberts recalled that Davis told the employees that they needed to talk to
him “or nothing was going to change or get fixed.”
The General Counsel’s brief cites the testimony of employee Ben Wu, who was called by
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the Company. Wu testified Davis stated that negotiations could take months or years. The
meeting at which that statement was made is not established. No witness for the General
Counsel testified that any statement relating to the length of negotiations was made on October
10.
I am unaware of any case holding that an employer’s reference to the time it might take
to conclude a contract, in the absence of comments relating to a predetermined intention not to
agree to or to reject union proposals, constitutes a threat of futility. The comments relating to
other dealerships knowing of the organizational campaign at MBO did not relate to any action by
the Respondents and did not threaten blacklisting. The request that employees advise Davis of
their concerns, to which no employee responded, did not imply that grievances would be
remedied. The mention of loss of benefits, made in the context of everything being on the table
in negotiations, was not a threat. I shall recommend that this allegation be dismissed.
18. On or about October 17, 2008, Respondents, by their agent:
(a) Told employees that it would be futile to select the Union as their collective
bargaining representative.
(b) Solicited employees’ grievances and impliedly promised to remedy them in order to
induce employees to abandon their support for the Union.
The General Counsel’s brief acknowledges that there was no meeting with
employees on October 17, which was the day that the representation case hearing began.
Davis admits that the Company held a meeting with employees prior to that hearing. Thus
the meeting occurred on October 15 or 16. Meyer recalled that a female in the parts
department complained that the employees had brought up issues, but “they felt like they
were being ignored or the problems weren’t being fixed.” Tony Roberts recalled a parts
employee complaining about an incident and that “she got retaliated against and that
management had the attitude of either shut up or leave.” Davis responded stating that “we
are finally starting to get somewhere . . . we could talk to him at any time . . . call him” and
that there was a suggestion box downstairs.
There is no credible evidence that Davis made any statement relating to futility. Upon
hearing the complaints that management had, in the past, been unresponsive to employee
complaints, Davis’ response that the employees “could talk to him at any time . . . call him”
implied that the Respondents would be responsive to employees’ complaints. The
Respondents, by soliciting grievances and impliedly promising to remedy them, violated
Section 8(a)(1) of the Act.
19. On or about October 30, 2008, on or about other dates in November 2008, more
precise dates being presently unknown to the General Counsel, and on or about
December 10, 2008, Respondents, by Clarence “Bob” Berryhill, interrogated employees
about the union sympathies of other employees.
20. On or about October 30, 2008, Respondents, by their agent, and by Clarence “Bob”
Berryhill, solicited an employee to go to a Union meeting to learn about employees’
grievances and to report them to the Respondents.
Weiss testified that, on October 30, he was in Berryhill’s office with Davis on the speaker
phone and that “they asked me if I had attended any of the Union meetings.” When Weiss
replied that he had not, “they asked me if I could find out when the next union meeting was
and attend it and find out what the employees were complaining about and relay that
information back to them.” Weiss further testified that they asked whether “any more
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employees were coming up to me saying they were for or against the Union.” Weiss
replied that “it didn’t look any better.”
Berryhill acknowledged that, on various occasions, Weiss mentioned the names of
specific employees but denied that he interrogated him regarding the union sentiments of
other employees, explaining that Weiss was in his office or calling him “almost daily,” and
that “there was pretty constant communication on his end.” Berryhill did not recall a
conversation in which Davis was on a speakerphone nor did he recall him asking Weiss to
attend a union meeting. Davis denied asking Weiss to “find out when the next union meeting”
was to be held and “tell us what the complaints are,” testifying that he “never asked Weiss for
any information whatsoever,” that Weiss provided information of his own accord.
Insofar as Weiss was known to oppose the Union, it would have been obvious to both
Davis and Berryhill that his attendance at any meeting would be considered as spying. Weiss
acknowledged that, after the prior organization campaign, he was accused of being a spy for the
Company. An October 13 email from Weiss to Berryhill advising that employee Larry Puzon
was concerned about job security confirms that, shortly after telling Berryhill that he “wanted to
offer his support,” Weiss began volunteering information about his fellow employees. I credit
the testimony of Davis and Berryhill that they did not solicit Weiss to attend a union meeting. I
shall recommend that paragraphs 19 and 20 be dismissed.
21. On or about dates from late October 2008 through mid-November 2008, more
precise dates being presently unknown to the General Counsel, Respondents, by James
Weiss, interrogated employees about their union activities and sympathies.
The foregoing allegation is predicated upon Weiss being an agent of the Respondents.
As already discussed, I find that Weiss volunteered information to the Respondents. There is
no probative evidence that any action he took was directed by management. He was not an
agent of the Respondents, and the Respondents were not responsible for his actions. I shall
recommend that this allegation be dismissed.
22. On dates in November 2008, including on or about November 25, 2008, more
precise dates being presently unknown to the General Counsel, and on or about
December 2, 2008 and December 15, 2008, Respondents, by their agent, interrogated
employees about the union sympathies of other employees.
The General Counsel, in his brief, argues that the testimony of Weiss relating to a
conversation in Berryhill’s office establishes that Berryhill and Davis questioned Weiss regarding
his opinion as to whether employee Ted Crossland supported the Union. Weiss testified that he
replied that he did not think so, but Davis disagreed, stating that the Company “pretty much”
knew that he was for the Union.
In a separate conversation, Davis and Berryhill spoke with Weiss regarding whether
Team Leader Oudit Manbahal had ever belittled him. Weiss stated that he had not. When
asked what Weiss thought of Manbahal, Weiss answered that he “was a good guy but had no
backing from the Company.” Davis noted that comments in the employee suggestion box
revealed that the “shop foremen [team leads] need to be replaced.” The Union was not
mentioned.
At the time of this conversation, Manbahal was a team leader, a supervisor. Weiss does
not claim that he was asked anything relating to the Union with regard to Manbahal. As already
noted, Berryhill and Davis deny questioning Weiss, explaining that he regularly volunteered
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information to them. I credit their denials. Weiss had been voluntarily providing information
relating to his fellow employees for well over a month. Even if I were to find that Weiss was
questioned regarding Crossland, I would further find that any such questioning was not
coercive. I shall recommend that this allegation be dismissed.
23. On or about a date in November 2008, a more precise date being presently
unknown to the General Counsel, Respondents, by their agent:
(a) Promised to redress employees’ grievances in order to induce employees to
abandon their support for the Union.
(b) Threatened employees with loss of jobs if they selected the Union as their collective-
bargaining representative.
24. On or about a date in mid-November 2008, a more precise date being presently
unknown to the General Counsel, Respondents, by their agent:
(a) Threatened employees with discharge if they engaged in union activities.
(b) Told employees it would be futile to select the Union as their collective-bargaining
representative.
The General Counsel, in his brief, addresses these allegations together and focuses
upon a meeting in which Davis asked the employees to “look around.” The testimony of the
employees relating to his remarks varies in detail. Poppo recalls Davis making a reference to
this being the “third” organizational campaign at MBO and that there was not going to be
another, but no other employee attributes that remark to him. Meyer recalled Davis stating that
if the employees did not “get on board” their jobs were not safe. Roberts and Weiss recalled
that Davis stated that only Berryhill’s job was safe.
Service Sales Manager Maia Menendez explained that the foregoing meeting occurred
shortly after a nearby AutoNation Pontiac/GMC dealership closed. Bobbie Bonavia, who was
present at the meeting, was extremely upset, crying, insofar as she had not been able to place
all of the employees who had lost their jobs. Although employee Tony Roberts professed
ignorance of the closure, neither he nor any other witness contradicted the testimony of
Menendez.
Davis admits that he told the employees: “Look around you. Take a look at the
people next to you. There’s a good chance that person may not be here in six months. . . .
[T]here’s only one person in this room whose job is safe, and that’s this man right here,”
pointing to Berryhill. Davis continued, stating, “This is serious business, okay. This is not
about a union campaign. This is about an industry on the verge of collapse.”
As already noted, Davis claims to have had no script and made no notes. Although I
view his representations skeptically, in the absence of corroborative testimony establishing that
Davis couched his remarks in terms relating to the organizational campaign rather than current
economic circumstances, I do not find that his remarks conveyed any threat related to union
activity. I shall recommend that paragraphs 23 and 24 of the complaint be dismissed.
25. In or about late November 2008 or early December 2008, a more precise date being
presently unknown to the General Counsel, Respondents, by their agent, interrogated
employees about their union sympathies.
In early December, Tumeshwar (John) Persaud was in his work area. Vice President
Davis was “walking around talking to the tech[nician]s.” When he came to Persaud he asked
how Persaud “felt about the election.” Persaud replied, “I think that the Company is going to
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learn I think we have a good chance.” Davis smiled and walked away. Persaud had not
openly supported the Union. Berryhill believed that Persaud, who worked next to Weiss,
supported the Company. Davis did not specifically deny the foregoing conversation.
Persaud was confronted individually by the AutoNation vice president who had,
over prior weeks, been making presentations on behalf of the Company. The question
asked by Davis, what Persaud thought about the election, demanded a response from this
employee who had not revealed his union sympathies. Persaud was placed in the position
of ignoring the question, thereby suggesting his own sympathies, or stating his perception
of the union sympathies, or lack thereof, of his fellow employees. I find that the
questioning of Persaud by Davis was coercive. The Respondents, by interrogating
employees regarding their union sympathies, violated Section 8(a)(1) of the Act.
The brief of the General Counsel misstates the allegation of paragraph 25 by
including Berryhill as an interrogator. Notwithstanding the absence of an allegation, the
General Counsel addresses an exchange between Berryhill and Persaud in late November
or early December, when Persaud was working with employee Ken Council and Berryhill
walked by. Council initiated the exchange, saying, “Hey, Bob, you know, you got my vote,
right?” Berryhill replied, “[Y]eah, I know I do, but I didn’t hear John [Persaud] saying that.”
At that point, Persaud said, “[Y]eah, I got it.” Berryhill did not address the foregoing
unalleged exchange, thus it was not fully litigated. I make no finding with regard to it.
26. On or about November 29, 2008, Respondents, by their agent:
(a) Asked employees to prepare a petition opposing the selection of the Union as the
employees’ collective-bargaining representative.
(b) Asked employees to solicit other employees to sign a petition opposing the selection
of the Union as the employees’ collective-bargaining representative.
(c) Threatened to blackball employees who supported the Union.
27. On or about December 4, 2008, Respondents, by their agent, asked employees to
solicit other employees to sign a petition opposing representation by the Union.
28. On or about dates in early December 2008, more precise dates being presently
unknown to the General Counsel, Respondents, by James Weiss, circulated a petition
against the Union among employees and solicited employees to sign the petition.
Weiss recounted a meeting on November 29 in which he and Davis were “talking about
different dealerships and stuff,” and that Davis commented that an employee in South
Florida had been “blackballed from the whole marketplace.” Weiss did not state the
reason that this occurred or why the employee was blackballed. Davis denied using that
term. Weiss claimed that in that same conversation Davis stated that, during an
organizing campaign at a dealership in Pembroke Pines, Florida, he had a technician start
a petition against the Union and asked if “I would do the same” and get it to Union
Organizer David Porter. Weiss replied, “[Y]eah, I’ll do it.”
Davis denied soliciting Weiss to circulate a petition. He recalled that Weiss asked what
had happened at Pembroke Pines, and Davis explained that “the associates got together and
generated their own petition” which he thought they had submitted to the Board.
The testimony of Weiss defies logic. The technician who allegedly did Davis’
bidding and started “a petition against the Union” at Pembroke Pines certainly would not
have been blackballed. Weiss alleges no statement that the employee who was
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purportedly blackballed related to failure to do the bidding of the Company. Weiss had
been voluntarily supplying information to the Company since mid-October. Even assuming
that Davis would threaten him, there would be no reason for a threat unless Weiss refused
to do his bidding. I credit Davis that no threat was uttered and that no request that Weiss
circulate a petition was made.
Weiss admitted that, during the investigation of this case by Region 12, Board
Agent Rachel Harvey asked him if Davis had instructed him to circulate a petition, and “I
said that he did not.” Harvey also asked whether Davis had ever seen the petition. Weiss
told her that “he did not.” I do not credit his assertions at this hearing that those
responses were untruthful. Insofar as the solicitations that Weiss made to have
employees sign the petition were not made as an agent of the Respondents, I shall
recommend that paragraphs 26, 27, and 28 of the complaint be dismissed.
29. On or about dates in early to mid-December 2008, more precise dates being
presently unknown to the General Counsel, Respondents, by their agent, told employees
that their grievances had been adjusted by the demotion of Andre Grobler and Oudit
Manbahal, in order to induce employees to abandon their support for the Union.
30. On or about December 9, 2008, Respondents, by Clarence “Bob” Berryhill, Florida
facility, told employees that their grievances had been adjusted by the demotion of
Andre Grobler and Oudit Manbahal from their team leader positions, and by the
replacement of Andre Grobler and Oudit Manbahal as team leaders by Alex Aviles and
Rex Strong, in order to induce employees to abandon their support for the Union.
The foregoing allegations relate to the announcement of the decision of the Company to
replace Grobler and Manbahal as team leaders effective on December 9, 1 week before the
representation election. Berryhill made the decision because of “[f]eedback from a lot of
different associates and different things that had occurred just over a period of time . . .
numerous complaints about the leadership abilities, many, many things.” As reflected in
Berryhill’s notebook, employees had complained about Grobler and Manbahal when he
solicited their grievances on September 25. Berryhill informed the technicians of the
Company’s action on December 9 at an impromptu meeting on the shop floor.
Employee Brad Meyer recalled that Berryhill stated that, “as we told you, we were
going to fix some of the problems in this dealership . . . some of the complaints that we
have received from the employees.” He then mentioned that the employees had seen
some of the changes and that “some of the changes we haven’t done yet, but we are
going to continue to try to make improvements here.” Berryhill then announced that, “as of
today,” Grobler and Manbahal were no longer team leaders, that Alex Aviles and Rex
Strong were the new team leaders for the red and the gold teams respectively.
Larry Puzon corroborated the foregoing testimony. He recalled that Berryhill
announced that this was “the beginning of fixing the problems that you guys brought in,”
that the Company was “demoting Andre [Grobler] and Oudit Manbahal.”
Berryhill was asked whether he informed the employees, “We told you we would fix
the problems.” Berryhill answered, “I don’t recall making that statement.” I credit the
mutually corroborative testimony of Meyer and Puzon who recalled that Berryhill did refer
to having heard complaints and that the Company was beginning to “fix the problems.”
Weiss recalled that, in a separate conversation with Davis, Davis commented that the
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Company “had bought some of the technicians’ votes; they demoted the shop foremen.”
Weiss recalled that Davis mentioned having had “talks” with Juan Cazorla. Cazorla
acknowledged that he had spoken to Davis regarding what he perceived as unfair
treatment by team leader Grobler, and Davis agreed that the treatment had been unfair.
Cazorla did not claim that Davis promised to do anything. On cross-examination Weiss
noted that Davis, in addition to “talks” with Cazorla, attributed the replacement of Grobler
and Manbahal to “the consensus of the suggestion box.” Davis denied making any
statement relating to buying votes and noted that, although he considered himself to be “a
trusted advisor” to Berryhill, that he did not have the authority to make such personnel
decisions. I credit the foregoing denial insofar as I am satisfied that Davis would not have
referred to buying votes. I find that Davis and Weiss did discuss the demotion of the team
leaders and that, in that discussion, Davis referred to a conversation with Cazorla and
attributed the demotions to “the consensus of the suggestion box.”
The Respondents, by informing employees that their grievances with regard to team
leaders had been adjusted by the demotion of the team leaders in order to induce employees to
abandon their support for the Union, violate Section 8(a)(1) of the Act.
31. On or about December 16, 2008, Respondents, by their agent:
(a) Interrogated employees about the union sympathies of employees.
(b) Interrogated employees about whether employees had voted in the secret ballot
election conducted by the Board.
(c) Threatened employees with closer supervision because they selected the Union as
their collective-bargaining representative.
(d) Informed employees that it was futile for them to select the Union as their collective
bargaining representative.
(e) Created the impression of surveillance of employees’ union activities.
(f) Threatened to discharge employees because they selected the Union as their
collective-bargaining representative.
This allegation arises from conversations that Weiss allegedly had with Davis before and
during the election and comments made by Davis following the election. Davis asked how
Weiss thought certain employees were going to vote and, when Weiss stated that he did not
know how employees Cazorla and Puzon would vote, Davis stated that he, Davis, needed to
speak with them. Weiss claims that, during the election, Davis asked who he had seen going to
vote. Weiss explained that his work area was near the stairs that went to the second floor
where the election was being conducted. Davis denies the foregoing. He admits having “some
interaction” with every employee on the day of the election, and it would be logical for him to
want to know if there were specific employees that he should make it a point to speak with. I
credit Weiss, but find that the inquiry Davis made to Weiss, who had been providing the
Company with information for 2 months, was not coercive.
Weiss could not know whether any employee he observed going up the stairs was going
upstairs to vote or for some other purpose, nor could he know whether that employee had
voted. There is no claim that Weiss engaged in list keeping. See Snap-On Tools, Inc., 342
NLRB 5, 7 (2004).
Following the election, which the Union won, Weiss claims that Davis stated, “I know
John Persaud voted yes.” Davis denies the foregoing statement and recalled that Weiss
informed him that he was “very suspicious” regarding how Persaud had voted. There is no
evidence whatsoever that the secrecy of the ballots cast in the election was compromised.
I credit Davis.
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Shortly after the election, Berryhill and Davis met with the employees and announced
the election results. Both expressed their disappointment. Employees Brad Meyer and David
Poppo recall that Davis stated that employees had lied to him. Davis acknowledges that he was
upset and that he made comments regarding trustworthiness. Various employees recalled
different statements made by Davis. Meyer recalled him referring to accountability and stating
that employees would be held “three times accountable.” No other employee recalled that
statement being made, and I do not credit it. Poppo recalls that Davis stated that everyone
needed to work together, that the Company was going to conduct business “however they want
to conduct business . . . Union or no Union.” Employees Dean Catalano and James Weiss
recalled that Davis said it would take a long time to get a contract. John Persaud initially
testified that Davis referred to getting rid of anyone “that was not supporting the Company,” but
thereafter acknowledged that the foregoing was his interpretation of a statement that Davis
made explaining that the Company would “keep making changes” whether the Union was there
or not. Employee Juan Cazorla recalled Davis stating that employees should look around, that
there were going to be changes. Employee Larry Puzon attributed to Berryhill a statement that
employees who were not happy were free to leave. I do not credit the uncorroborated testimony
of Cazorla and Puzon. I am satisfied that, like Persaud, they gave their interpretation of what
they recall Davis saying.
Davis acknowledged stating that the things that the Company had “committed to do for
this dealership to make it a better place to work are still going to happen. We’re going to
work tirelessly to make it happen.” He also admitted stating that things “might get worse
before they get better around here.” Regarding negotiations, Davis recalled stating that
“the process . . . is long, and it can be arduous, and neither side is going to roll over. You
guys [the Union] have an agenda. We [the Company] have an agenda, and we’re going to
have to negotiate that.” The foregoing statement does not threaten futility.
As the meeting was ending, Meyer accused Davis of threatening the employees.
Davis responded that he “never threatened anybody.” Meyer replied, “[Y]es you did.”
Davis asked, “[W]hat did I say that was threatening?” Meyer answered that he did not
know, that he would have to look at his notes. Meyer did not follow up on this
conversation with Davis. The foregoing exchange, to which Meyer testified, confirms my
earlier observation that the manner in which Davis framed his statements resulted in
employees hearing what the Company wanted them to hear rather than what was actually said.
I shall recommend that paragraph 31 be dismissed.
32. On or about December 19, 2008, Respondents, by their agent:
(a) Threatened to discharge employees because they selected the Union as their
collective-bargaining representative.
(b) Informed employees that it was futile for them to select the Union as their collective
bargaining representative.
On December 19, Weiss discovered that someone had placed a union sticker on his
toolbox. He reported this to Davis who purportedly spontaneously informed him that, if it was
Puzon, Persaud, or Cazorla, that they would not be working there much longer, that he was
going to fire them within 60 days. Weiss, in somewhat confused testimony, claims he asked
Davis, “[W]hen is the union contract getting back?” He then revised that testimony, saying
that he asked, “When are the employees going to get a contract?” According to Weiss,
Davis responded, “[T]he day I die.” Davis testified that he has no authority with regard to
personnel decisions and denied making either of the foregoing comments. Although other
witnesses recall Davis speaking about the potential length of negotiations, no witness
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other than Weiss attributes the “day I die” comment to him at any time. I credit Davis and
shall recommend that this allegation be dismissed.
33. On or about dates from mid-December 2008 through mid-January 2009, and on or
about January 11, 2009, more precise dates being presently unknown to the General
Counsel, Respondents, by Clarence “Bob” Berryhill, threatened employees with
discharge because of their union activities and sympathies.
This allegation is predicated upon testimony by Weiss that he reported to Berryhill that
employees were spreading untrue rumors about him and that he suspected Catalano, Meyer, or
Santiago. Notwithstanding the foregoing list, Weiss recalled that Berryhill asked whether
employee Juan Cazorla had harassed him. When Weiss replied that he “did not think so,”
Berryhill purportedly told Weiss that if he charged Cazorla with harassment, the Company would
fire him. On January 11, Weiss reported that he was being harassed by Catalano, Meyer, or
Wong. On that occasion he claims that Berryhill told him that the Company was working with
the law firm of Fisher and Phillips, that the Company would be “getting rid of them” and to “hang
in there.”
Berryhill denies the foregoing conversation. The Respondents did not get rid of
Catalano, Meyer, Santiago, or Wong. Wiess’s claim that Berryhill questioned him about
Cazorla, whom he did not mention, is illogical and would presumably have caused Weiss to
have asked why Berryhill was talking about an employee that he had not mentioned. I credit
Berryhill and shall recommend that the foregoing allegations be dismissed.
34. On or about a date in early January 2009, a more precise date being presently
unknown to the General Counsel, Respondents, by Charles Miller, threatened to demote
employees because of their union sympathies and activities, and promised to promote
employees because they opposed the Union.
In January 2009, Weiss was speaking with Parts Director Charles Miller who was
serving as service director in the absence of Art Bullock. Weiss claims that he asked why Miller
had Dean Catalano, “a strong union supporter as a lead tech[nician],” noting that Catalano
was “influencing the rest of the guys.” According to Weiss, Miller confirmed with Weiss
that he had previously been a lead technician, a position he had relinquished. Miller then
stated, “[W]e’ll just get rid of Dean, and we will give you your old job back.”
Miller credibly denied the foregoing, that he had no idea what Weiss was referring to in
his testimony. He noted that he had no jurisdiction relating to demotions. Weiss was not
given Catalano’s lead technician position. I shall recommend that this allegation be
dismissed.
35. On or about January 20, 2009, Respondents, by their agent, threatened employees
with stricter enforcement of work rules because they selected the Union as their
bargaining representative.
On January 20, when he had no vehicle to work on, Weiss was working on a remote
control helicopter. Davis came by and asked, “Doesn’t Brad Meyer fly helicopters?” When
Weiss responded that he did, he claims that Davis stated that “things like that will have to
come to an end and we will see how Brad [Meyer] likes that.” Weiss admitted that his
conversation with Davis continued, and that, after Weiss referred to another employee
whose hobbies included remote control helicopters, Davis stated that that it would be “kind
of pointless to punish you too . . . just because Brad [Meyer] flies helicopters.”
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Davis denied making any comment relating to stopping Meyer from working on
remote control helicopters when he had no vehicle to work on. Even if I were to assume
that Davis’ reference to working on hobbies coming to an end constituted a threat, the
threat was immediately retracted.
There is no evidence of any work rule prohibiting employees from working on a
hobby when there were no vehicles to be worked on. Employees engaged in various
activities when they had no vehicle to work upon including playing handball and dominoes,
and there is no evidence that that practice ever changed. I shall recommend that this
allegation be dismissed.
36. On or about dates in late January 2009 or early February 2009, more precise dates
being presently unknown to the General Counsel, Respondents, by their agent:
(a) Threatened to discharge employees because of their union activities and sympathies.
(b) Promised employees promotions if they made claims of misconduct by other
employees who supported the Union.
In January 2009, Weiss began hearing rumors that he was a drug addict. He
approached Davis and asked whether he could lose his job over that. He recalled that Davis
replied that “before anybody gets reprimanded or written up” it would have to go through
him and that Weiss’ job was safe. Davis asked who Weiss suspected, and Weiss replied,
“Dean Catalano, Manchung Wong, Brad Meyer maybe.” According to Weiss, Davis
referred to Catalano, the first individual that he had mentioned, and told Weiss that if he
was “willing to put it in writing, we will fire him and we will give you your lead tech job
back.” Weiss says he refused stating that he did not know “definitively that it’s him that’s
the one spreading the rumor harassing me.”
In early February 2009, Weiss again spoke with Davis, complaining that someone
had scratched his car with a key. As in January, he claims that Davis told him that, when
he was willing to put it in writing, “We will fire them.” Davis told Weiss to take pictures of
his car. Weiss said that he did so, but admits that he never provided them to Davis.
Davis denied threatening to discharge any employees or promising to give Weiss the
lead tech job. Consistent with the foregoing denial, Davis explained that, on March 25, 2009,
when he, Berryhill, and Bonavia took Weiss and employee Oudit Manbahal to lunch at a local
barbeque restaurant, Weiss continued to make claims of harassment. Davis explained to Weiss
that, before any action could be taken against any employee, Weiss needed to get “evidence
together that allows us to legitimize the need for the investigation” so that it did not look
like the Company was harassing the individuals he implicated without justification. He
directed Weiss to “[t]ake some time, and put pen to paper and generate a document for
me that lays out what your allegations are. Who, what, when, where, and how.” Weiss
never did so.
I credit Davis’s denial, and I shall recommend that that this allegation be dismissed.
37. On or about a date in early March 2009, a more precise date being presently
unknown to the General Counsel, Respondents, by their agent, threatened employees
with unspecified reprisals if they cooperated in the Board’s investigation of unfair labor
practice charges against Respondents.
Weiss contends that, upon receiving a letter dated March 3, 2009, from Rachel Harvey
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relating to the investigation of charges in this case he spoke with Berryhill who told him to call
Davis. He did so, explaining that he had received the letter. He asked Davis, “[W]hat do you
want me to do? You want me to lie or tell the truth?” According to Weiss, Davis replied,
“[T]here’s no need for that. You know the Company has put a lot of trust in you, and we
know that you will keep the Company’s best interest in mind.” Weiss says he responded
by stating to Davis that he had said “employees were going to get let go,” and asked when
that was going to happen, that it “hasn’t happened yet.” Weiss says that Davis replied that
Weiss needed “to understand that if we just go and fire somebody . . . the Union would just
get them their job back and we don’t want that. . . . [W]e are doing things the right way.
Just hang in there.”
Following his conversation with Davis, Weiss, on March 10, 2009, spoke with the board
agent and, as already noted, denied that Davis instructed him to circulate the petition or that he
had showed it to Davis.
Davis denied having any conversation with Weiss regarding the Board until after his
resignation when Weiss had received a subpoena. He specifically denied that Weiss asked
whether he should lie or tell the truth. Relative to the conversation after Weiss received a
subpoena, Davis says that he told Weiss that “the only thing we ask of you, as we always
have, is just to be honest. Tell the truth.” I credit Davis.
I shall recommend that this allegation be dismissed.
38. In or about mid-March 2009, a more precise date being presently unknown to the
General Counsel, Respondents, by Clarence “Bob” Berryhill, solicited employees to
make claims of misconduct against other employees because of the other employees’
support for the Union.
Weiss claimed that, after the barbeque lunch noted above, Berryhill called and asked
him to put something in writing regarding Catalano harassing him. When Weiss stated that,
although he suspected Catalano, he was not comfortable doing that insofar as he was not
certain that Catalano was responsible. Berryhill purportedly repeated the request, stating that
the Company was counting on him. Thereafter, Weiss claims to have sent an email stating that
Catalano was harassing him, but the email was not produced or placed in evidence.
Berryhill denies soliciting that Weiss to make any report. He noted that, prior to the
election, Weiss told him that Catalano would regularly stop at a bar on his way home from work
and suggested reporting to the Florida Highway Patrol that the driver of a silver Honda was
“wobbling all over the road,” which would result in an arrest and “when you get a DUI with
AutoNation, you don’t have a job.” Berryhill replied that he would not do that to his “worst
enemy.” Weiss, who admitted approaching Miller regarding Catalano being a lead
technician, was not recalled to deny the foregoing testimony. I credit Berryhill. I shall
recommend that the foregoing allegation be dismissed.
39. On or about February 1, 2009, Respondents stopped providing ice cream to
employees in the Unit pursuant to their threat described above in paragraph 17(d).
Beginning in 2007, the dealership had what was referred to as “Ice Cream Fridays” upon
which ice cream bars were provided to all employees at the dealership. As already noted, Davis
mentioned this in one of his presentations, pointing out that “once you get to the negotiating
table, all your benefits are on the table . . . it’s a two-way street.” He mentioned that the
employees could lose things that other dealerships did not have such as free ice cream. I
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have already found that, in context, the foregoing did not constitute a threat.
Although the complaint alleges that the cessation of “Ice Cream Fridays” occurred in
February, employee Brad Meyer noticed that it had ceased in January. He heard from some
employees that the cessation was related to costs. At a morning meeting on January 20, 2009,
Meyer raised the issue. Service Sales Manager Maia Menendez noncommittally
responded that “it was just a decision that was made,” with no further explanation. Meyer
confirmed that ice cream is still sometimes provided, but not on a weekly basis.
Berryhill thought that the weekly provision of ice cream ended contemporaneously with
the discharge of the three technicians in December, testifying that “it just didn’t make sense [to
continue to provide free ice cream] where the business was going to continue to consider
firing people because there’s not enough business.” He pointed out that “we still buy ice
cream and watermelons and things like that from time to time.”
The regular provision of free ice cream to all employees was a gift insofar as it was not
linked to “wages, seniority, or work performed.” See Stone Container Corp., 313 NLRB 336,
337 (1993). Thus the cessation, assuming it occurred after the December 16 election, would
not have been a unilateral change in terms and conditions of employment over which the Union
would have been entitled to bargain. I am aware of no precedent holding that cessation of a gift
violates the Act. Insofar as far more employees than the service technicians were affected, I am
convinced that the cessation was a cost cutting measure unrelated to union activity. The
General Counsel did not establish that the cessation of the regular provision of ice cream
constituted retaliation for employee union activity. I shall recommend that this allegation be
dismissed.
40. On or about March 31, 2009, Respondents, by Clarence “Bob” Berryhill:
(a) Told employees that Respondents would not recognize the Union as the collective
bargaining representative of the Unit until Respondents and the Union entered into a
collective-bargaining agreement.
(b) Told employees that Respondents would not allow Union stewards to serve as
representatives of employees in the Unit in meetings between Respondents and
employees in the Unit concerning disciplinary matters.
This allegation is predicated upon comments made by Berryhill to shop steward Dave
Poppo following a TAP meeting. Berryhill requested that Poppo remain, and he did so.
Berryhill noted that he could stop him from wearing his steward pin, but was not going to do so.
He informed Poppo that there was a rumor that employees were being told that they were
entitled to representation by a shop steward when they were being disciplined, and that was not
true. Berryhill continued, stating that the Company did not “recognize the Union unless there is
a contract.” Poppo explained that he understood that, pursuant to the “Weingarten Act,”
employees were entitled to representation “as a witness for disciplinary action.” Berryhill stated
that he would check with Davis. Berryhill did not thereafter report to Poppo whether he had
contacted Davis or what Davis told him. Berryhill did not deny the foregoing conversation.
There is no evidence that any employee who has sought representation during an
investigative interview has been denied representation. Berryhill told Poppo that employees
were not entitled to representation when they were being disciplined. Poppo failed to
distinguish between investigatory interviews that could lead to discipline, at which represented
employees are entitled to assistance from their Union, and meetings in which discipline is
actually imposed where there is no such entitlement. See Baton Rouge Water Works Co., 246
NLRB 995 (1979). I shall recommend that subparagraph 40(b) be dismissed.
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It is undisputed that Berryhill told Poppo that MBO did not “recognize the Union unless
there is a contract.” The foregoing statement, precluding the employees’ right to representation
prior to agreement upon a contract, “communicated to employees the futility of trying to deal
with the Respondent through their own designated representatives.” Dish Network Service
Corp., 339 NLRB 1126, 1128 (2003). The Respondents, by informing employees that the
Respondents would not recognize the Union until there was a contract, violated Section 8(a)(1)
of the Act.
The allegations relating to the foregoing conversation are alleged to violate Section
8(a)(5) of the Act. I have recommended dismissal of subparagraph 40(b). The Respondents
are contesting the certification of the Union. Berryhill’s statement, although threatening refusal
to recognize the Union until conclusion of a contract, does not constitute a refusal to bargain. I
shall recommend that the 8(a)(5) allegation relating to this paragraph be dismissed.
E. The 8(a)(3) Allegations
1. The discharge of Anthony (Tony) Roberts
a. Facts
Roberts was a certified master technician and was rated at skill level B+. He began his
employment with MBO on May 20, 2002, and had more seniority than 14 of the other
technicians. He began attending union meetings at the inception of the campaign and signed
an authorization on July 8. He spoke with other employees about the Union and invited
employees, including Brad Meyer, to come to meetings. Berryhill’s notebook reflects that he
was the first technician with whom he and Bullock spoke on September 25, when the Company
learned of the organizational activity.
On December 8, Roberts was called to the office of Berryhill where Charles Miller, who
was serving as acting service director was present. Berryhill informed Roberts that he was
“downsizing the dealership and that he was going to be permanently laying me off.”
Roberts asked why it was he who was being laid off, and Berryhill repeated, “[W]e are just
downsizing.” Roberts pointed out that he had seniority “over half the shop.” Berryhill
repeated that he was “downsizing.” Roberts responded that he had been told that the last
one hired would be the first one fired. Berryhill answered that whoever told him that was
lying.
Roberts’ uncontradicted testimony establishes that, in 2004, parts employee Doug
Huff was laid off. When the technicians complained, stating that he was the best parts
employee, Service Director Art Bullock explained that it was “AutoNation’s policy that the
last one hired would be the first one let go.” Although Berryhill was not general manager
in 2004, the selection of Roberts in 2008 was made by Bullock. Bullock was not present
when Roberts was discharged, and he did not testify. Berryhill acknowledged that there
were technicians who were junior to Roberts but that he had “never gone by straight
seniority.”
I have credited the testimony of Weiss that he informed Berryhill and Davis of the
individuals whom he believed started the organizational effort. Berryhill acknowledged having
conversations “almost daily” with Weiss, and he did not deny that Weiss reported Roberts as
having been one of the instigators of the organizational campaign. Roberts was the first
person shown in Berryhill’s notebook as being questioned on September 25. In a carefully
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phrased question, counsel for the Respondents asked Berryhill: “[T]o your knowledge, had
Mr. Roberts demonstrated any sympathies toward the union in your presence up to that
point [his discharge] in time?” Berryhill answered, “Not to my knowledge, no.” Weiss
recalled that, in late October, Berryhill referred to Roberts as a “troublemaker . . . he’s been a
problem since day one, and he’s one of the key guys who started the Union.” I do not credit
Berryhill’s denial of that statement. With regard to the “troublemaker” comment, I note that on
June 27, Roberts received a verbal counseling for questioning the merit of a contest relating to
“up-sales” that Roberts felt was selling customers things that they did not need and that such
selling would “run our customers out the door.” The Respondents were aware of the union
activities of Roberts.
Berryhill acknowledged that there were technicians with lower skill ratings than
Roberts, but that was not “a deciding factor at all” relative to his termination. Documentary
evidence establishes that there were nine technicians with lower skill ratings than Roberts
including Ben Wu and Patrick Fenaughty, who according to General Counsel’s Exhibit 118
both held a skill rating of D. The record is unclear as to whether a skill rating of D is the
same as a trainee. Whether they were trainees or D technicians is immaterial insofar as
they were the two employees with the lowest skill ratings.
At the same time that Roberts was discharged, employees Ted Crossland and
Edward Fries were discharged. There are no allegations relating to their discharges;
however, they were both subject to charges filed by the Union. The Respondents’ position
statement, submitted to Region 12, explains that there were two alignment technicians and
two tire technicians and that lack of work dictated a reduction-in-force. Alignment
technician Crossland was selected because his “call backs,” i.e. returns to the dealership
because the initial problem was not corrected, were greater than those of the employee
who was retained and his productivity, measured in hours sold, was less. Tire technician
Edward Frias was selected because of faulty installations and failure to confirm tire size as
well as lower productivity than the employee who was retained.
Roberts’ productivity, as shown by hours sold, was higher than 19 of the other
service technicians as well as one of the alignment technicians and both tire technicians.
The Respondents’ position statement states that, unlike Crossland and Frias, Roberts’
selection “was not made by comparing him directly to one other individual” but upon a
determination that his “skill set was least well-suited for the modern automobile service
that the dealership provides.” No explanation regarding his alleged unsuitability relative to
his productivity was offered.
Berryhill claimed that it was obvious to him that the dealership “had too many
people back there,” and that he felt obligated, in addition to Crossland and Frias, “to at
least select one person [service technician] to help the workload.”
Berryhill spoke with Service Director Art Bullock about “who would possibly be a
candidate or two.” Berryhill testified that Bullock identified Roberts who purportedly
reported that Roberts had not “shown a real interest in furthering his education” in the area
of diagnostics. The most recent evaluation of Roberts in the record is dated August 13,
2007. It rates Roberts at 2, “on target,” regarding knowledge, skill, and experience, and
states that he needs to “continue developing electrical diagnostic skills.” There is no
statement relating to insufficiency with regard to his skills or any lack of interest.
Berryhill claimed that he also spoke with Roberts’ Team Leader Bruce Makin who
stated his opinion that Roberts had “the least amount of upside of the technicians we had
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in the shop.” Berryhill, so far as this record shows, did not consult with the team leaders
of the other teams. Makin, team leader of the red team, was not shown to have been in a
position to offer his opinion as to the members of the gold and green teams. Berryhill
acknowledged that Roberts was “a good technician, but a decision had to be made for
someone to go.” The foregoing testimony fails to note that, when he initially approached
Bullock, he referred to “a candidate or two.”
Berryhill, when testifying pursuant to Section 611(c) of the Federal Rules of
Evidence, said that he consulted with Alex Aviles, who was appointed team leader the day
after Roberts was discharged. Aviles denied that he had any input into the selection of
Roberts. When called by the Respondents, Berryhill did not mention receiving any input
from Aviles, referring only to Bullock and Makin. Berryhill acknowledged that he was not a
technician and had little knowledge of the technicians’ “true abilities, I don’t dive that deep
into it. That’s not my position.” Thus he acted upon Bullock’s recommendation. Neither
Bullock nor Makin testified.
(b) Analysis and concluding findings
In assessing the evidence under the analytical framework of Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), I find that Roberts engaged in union activity
and the Respondents were aware of that activity. I also find animus. The discharge of
Roberts was an adverse action that affected his employment, and Berryhill’s identification
of Roberts as a troublemaker and instigator of the organizational campaign establish that
his protected activities were a substantial and motivating factor for his discharge. I find
that the General Counsel has carried the burden of proving that union activity was a substantial
and motivating factor for Respondents’ action. Manno Electric, 321 NLRB 278 (1996). Thus,
the burden of going forward to establish that the same action would have been taken against
Roberts is upon the Respondents.
Berryhill admitted that he was not a technician and relied upon the recommendation of
Bullock, a recommendation with which Team Leader Makin agreed purportedly because
Roberts had “the least amount of upside of the technicians we had in the shop.” Whether
Roberts’ support of the Union was the basis for Makin’s opinion relating to Roberts’
“upside” is not established on this record because Makin did not testify.
Similarly, the record does not reflect how Bullock concluded that Roberts did not
show “a real interest in furthering his education.” There is no evidence that Roberts was
counseled or otherwise notified of any deficiencies in his skills, and his productivity
confirms that he had none. Roberts’ evaluation shows him to be “on target” with regard to
skills and, under job performance, it reports that Roberts “works hard to ensure that jobs
are done completely and correctly.” Bullock did not testify.
The failure of Bullock and Makin to testify compels an adverse inference that, had they
done so, their testimony relating to the alleged deficiencies of Roberts would reveal that the
Respondents were motivated by animus towards Roberts because of his union activities.
An employer’s choosing to retain a trainee but to lay off a senior employee who has
“superior experience, proficiency, and service . . . when the senior employee is a union activist,
supports the inference that the actual motive for the layoff was unlawful.” Pacific Southwest
Airlines, 201 NLRB 647, 655 (1973), enfd. 550 F.2d 1148 (9th Cir. 1977).
The Respondents, in determining which tire technicians to lay off, compared them. The
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Respondents chose not to make any comparison when selecting a regular service technician for
discharge because Roberts would not have been selected. He had greater seniority than 14 of
his fellow employees, having been employed since May 20, 2002. Ben Wu had been hired in
August 2007, and Patrick Fenaughty had been hired in November 2005. Roberts booked more
hours that 19 of the regular service technicians. Roberts had a skill level of B+, higher than nine
of the regular service technicians. Fenaughty and Wu, whether trainees or D technicians, had
less seniority, lower skill levels, and less productivity.
The Respondents have not established that Roberts would have been discharged in the
absence of his union activity. I find that the Respondents discharged Roberts because of his
union activities and in so doing violated Section 8(a)(3) of the Act.
2. The April discharges
a. Facts
The national financial decline in 2008, resulting in bankruptcies and bailouts, had a
profound impact upon automobile sales and service. Controller Collie Clark presented
documentary evidence relating to the impact upon MBO. In 2007, MBO sold 1114 vehicles. In
2008, only 728 were sold. The dealership profits dropped 40 percent from $7.6 million to $4.5
million. Gross profit for the service department dropped from $5.5 million to $4.7 million.
Although income was stabilizing in 2009, there was no improvement until the latter part of the
year. Clark explained that, notwithstanding a cessation of the decline in early 2009, the effect
would not be immediately felt in service due to lag time. As noted above, new cars did not
come in for service until they had been driven 10,000 miles.
In early 2009, when walking through the service shop, Berryhill observed that people
were standing around because there was no work. He determined that the service department
was overstaffed. He spoke with Service Director Bullock and asked him to have the team
leaders of each team give him two candidates for a reduction-in-force.
Berryhill regularly consulted with Clark. Following his conversation with Bullock, Berryhill
met with Clark and, after “looking at the numbers, looking at the hours, again trying to
remain more on the optimistic side” determined that four technicians should be eliminated.
He noted that he “felt we needed more,” and that would have been true if “a couple people
[had] not quit.”
The General Counsel argues that, insofar as technicians were only earning money
when they were working, that the reduction-in-force did not result in any significant cost
savings to the dealership. When asked about the absence of cost savings, Berryhill
responded, “I wasn’t at looking cost savings when I terminated four technicians. I was
looking for the survival of the remaining technicians. That was my intent. It wasn’t to save
money. It was to save people.”
In a more comprehensive answer, Berryhill explained that “when you are
overstaffed, the people that are good that aren’t making enough money, they are going to
leave. They are going to find somewhere to work and make the money they deserve. So
that’s why you can’t afford to have too many . . . technicians when they work on
commission.
I find that the reduction-in-force in April 2009 was dictated by economic circumstances.
As hereinafter found, the Respondents were obligated to bargain with the Union regarding both
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the decision and the effects of the decision to implement a reduction-in-force insofar as the
Union had demonstrated its majority status on December 16 and had been certified as the
collective-bargaining representative of the employees on February 11, 2009.
The complaint alleges that the employees discharged pursuant to the reduction-in-force
were discharged because of their union activity in violation of Section 8(a)(3) of the Act.
The four employees discharged were, on April 2, 2009, Juan Cazorla, and on April 3,
Tumeshwar (John) Persaud, David Poppo, and Larry Puzon. All signed union authorization
cards and attended some union meetings, but only Cazorla and Poppo were shown to have
engaged in any union activity after the election in December.
Cazorla was not publically outspoken regarding his union sympathies. He was invited to
a union meeting by Alex Aviles and recalls attending about 10 meetings. Former team leader
Andre Grobler had created an impression of surveillance of his union activity by referring to him
hurrying to a meeting. In March 2009, Cazorla, accompanied by shop steward Dean Catalano,
complained to acting Service Director Charles Miller that Cazorla’s uniform shirts had been
thrown into a trash can and a toilet.
John Persaud attended about five union meetings. When questioned, he indicated to
both Davis and Berryhill that he supported the Company. Berryhill acknowledged that he
expected Persaud to support the Company because he worked next to James Weiss.
Poppo, although having attended some union meetings, was not outspoken during the
organizational campaign. He was elected a shop steward in February.
Puzon attended three union meetings. He was not outspoken regarding his union
sympathies. Rex Strong, a unit employee until appointed as a team leader on December 9,
attended one of those meeting. Alex Aviles, who Weiss identified as being one of the instigators
of the organizational campaign, attended all three meetings at which Puzon was present.
Insofar as Aviles was an active participant in the organizational campaign for some
period prior to his appointment as a team leader, I find that the Respondent had knowledge of
the union activities of the four technicians laid off in April. As the Company points out in its brief,
omitting Tony Roberts who had been discharged in December, outspoken prounion employee
Meyer, who was appointed a shop steward and was present at the representation hearing,
James Wasiejko, who served as a union observer at the election, Dean Catalano, who was
appointed as a shop steward, and Ruben Santiago were not discharged.
Team Leader Alex Aviles confirmed that Service Director Bullock informed him in early
February that he needed to start thinking about identifying two technicians on his team for layoff.
Aviles “was hoping the request” would not be repeated, but it was. In early March, Bullock
approached him again. A couple of days later, Aviles approached Bullock and stated that he
was not happy, that somebody should not lose their job “just because they were on the red
team or the green team or the gold team.”
When the new team leaders were appointed, Makin was reassigned from the red
team to the green team, Alex Aviles was assigned the red team, and Rex Strong was
assigned the gold team. The issue raised by Aviles resulted in a management meeting in
which it was agreed that all the technicians would be evaluated “against everybody across
the shop and not per team.” Aviles noted that he did not “want to brag about my techs, but
I thought I had probably some of the best techs there” and that he did not want one of
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them to lose his job “just because he’s [on the] red [team].”
Aviles and the other team leaders, Rex Strong and Bruce Makin put together an
evaluation form upon which they agreed and submitted it to higher management for
approval. At that point in time, Bullock was absent and Parts Director Charles Miller was
serving as acting service director. MBO received input, an evaluation form that had been
used in an AutoNation dealership in south Florida, from Bobbie Bonavia. Miller explained
that MBO “kind of combined the two forms and came up with one of our own.”
The team leaders did not know how many technicians would be laid off, but
assumed the number would be six because Bullock had initially asked for two from each
team. They did not know whether their evaluations would be the deciding fact but
assumed their evaluations were “going to have a lot of weight.”
On March 26, 2009, the three team leaders met together with acting Service
Director Miller present as a facilitator. They evaluated alignment technician Jorge Amaya,
who was not subject to layoff because of his specialization. Upon reaching agreement
regarding his ratings, they used his ratings as the benchmark for the technicians.
Each team leader in turn addressed the members of his team, receiving input from
the other two team leaders. As Aviles explained, “all the three team leaders have been
there for a very long time, so we pretty much know a lot about everybody.” Each leader
gave his opinion and got the opinions of the other two team leaders and decided upon how
to score the various categories. Any disagreements were discussed, and agreement was
reached. The rating form was then given to Miller who added the scores.
The team leaders had been instructed by higher management, including Davis, that
consideration of a technician’s union sympathies was not to play any part in the
evaluation. Aviles credibly testified that they were “looking at who was going to be the
best technician to leave on the floor. Just because they want the Union or not, that has
nothing to do with it.” He pointed out that he hoped “I never have to go through it again.
These people were my friends. And I used to worry because I’m sure they are probably
upset at me because they know I participated in this, but it’s very hard to know that your
friend may not have a job next week.”
The four lowest rated technicians were Cazorla, Puzon, Poppo, and Persaud. All were
discharged. Berryhill had determined, prior to receiving the results of the evaluations, that the
four lowest rated would be laid off, i.e., discharged. Consistent with his testimony relating to
accepting Bullock’s recommendation regarding Roberts, he explained that he did not “work with
them daily so I’m not the judge of their talent level, and that’s why I had it done the way I
did.”
Upon learning of the discharge of the four technicians, James Wasiejko, who had served
as an observer for the Union at the election, spoke with his team leader, Bruce Makin, and
volunteered to take a layoff to let one of the discharged technicians remain, “because they had
kids.” Makin thereafter told him that he could not do anything about it. Wasiejko then spoke to
Miller who said that he appreciated Wasiejko’s offer, but the decision was made. Berryhill
acknowledged that he was made aware of Wasiejko’s offer but rejected it insofar as it would
have disturbed “the integrity of the . . . process.” He also noted that he was concerned that the
offer may have been a “set up.” Wasiejko acknowledged that there had been no retaliation
against him and that Makin was fair in his evaluations of employees.
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b. Analysis and concluding findings
In assessing the evidence under the analytical framework of Wright Line, supra, I find
that each of the alleged discriminatees engaged in union activity, but that activity was minimal
except for Poppo who was appointed a union steward. I also find animus. The discharges
were adverse actions that affected the employment of each of the alleged discriminates. I
find that the General Counsel has carried the burden of proving that union activity was a
substantial and motivating factor for Respondents’ action. Thus, the burden of going forward to
establish that the same action would have been taken against them is upon the Respondents.
The issue herein is whether the selection of employees to be discharged pursuant to the
reduction-in-force was discriminatory. The Respondents do not use seniority as a factor, as
Berryhill told Roberts. Previous evaluations were not used as a factor in determining which
alignment and tire technicians should be laid off.
Regarding previous evaluations, Aviles explained that he had not “evaluated any of
them . . . I wanted it to be my judgment.” He noted that the skill ratings of the technicians did
not necessarily match their abilities, that they were “a thank you for your seniority time” but
that they did not “really have that skill set.” During the organizational campaign prounion
employee Ruben Santiago had complained to Berryhill that Team Leader Oudit Manbahal
showed favoritism. The demotions of Manbahal and Grobler confirm that the Respondents
lacked confidence in them. Prior evaluations for members of their teams would have been
made by Manbahal and Grobler.
I have credited the testimony of Aviles regarding the manner in which the
Respondents decided to evaluate the technicians. Although Meyer, who was promoted to
skill level A in August and is now the diagnostic technician for the green team, was rated
in the bottom half of the technicians, that circumstantial evidence does not persuade me
that the ratings were manipulated. Significantly, none of the technicians who openly
supported the Union during the campaign, and none of the technicians who Weiss
identified as being suspected of harassing him, were rated as one of the bottom six, the
number of technicians that the team leaders expected to be affected. I am mindful that
neither Makin nor Strong testified, and the absence of their testimony raises misgivings
relative to the objectivity of the ratings, but there is no direct evidence that the ratings
were manipulated because of an employee’s union sentiments. When the team leaders
disagreed, they discussed the rating and ultimately agreed upon it. Any misgiving that I
have regarding a discriminatory motive in the evaluations are resolved by the credible
testimony of Aviles that a technician’s union sympathies played no part in his ratings and
that he agreed upon the ratings given each technician.
An administrative law judge may not substitute his or her opinion regarding how a
situation should have been handled in evaluating whether an employer’s conduct was
unlawfully motivated. Ryder Distribution Resources, 311 NLRB 814, 816 (1993). The
Respondents established that a reduction-in-force was necessary. The Respondents
discharged the four lowest rated technicians. There is no probative evidence that the
ratings of the technicians were related to their union activities which, other than the status
of Poppo as a shop steward, were minimal. Thus, I find that Cazorla, Puzon, Poppo, and
Persaud would have been discharged even in the absence of their union activities. I shall
recommend that this allegation be dismissed.
3. The constructive discharge of James Weiss
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As my findings with regard to the 8(a)(1) allegations reflect, Weiss, at the outset of the
union organizational campaign, pledged his support to the Company and thereafter provided
information relating to the union sympathies of his fellow employees to the Company. He
initiated an antiunion petition and solicited his fellow employees to sign it. There is no credible
evidence that his actions were directed by the Company, and even if there were such evidence,
there is no evidence that he refused any directive given to him. Weiss, during the organizational
campaign or thereafter when employed, never complained or commented that any thing he did
was motivated by anything other than his antiunion sentiment. He made no contemporaneous
complaint of any threat, any coercion, or any solicitation to lie.
Weiss asserted that his working conditions changed, but acknowledged that he
continued to perform maintenance on vehicles. He complained to Berryhill and Davis that he
was being harassed, but the harassment of which he complained related to his fellow
employees. Although claiming that he was often in Berryhill’s office, there is no evidence that
this occurred following the election, and there is no evidence that this was a change in working
conditions for which MBO was responsible. There is no credible evidence that there was any
change in the working conditions of Weiss or that the Company was responsible for any such
nonexistent change.
Weiss sent a resignation letter to Berryhill, but that letter cites no threats and
affirmatively states that “I have never said anything bad” about AutoNation or MBO and “I never
will.” Contrary to the foregoing representation, at the hearing herein, Weiss testified that he was
threatened with discharge and blackballing by Davis, notwithstanding the fact that he never
refused to do anything that Davis allegedly asked him to do. Following the election, when
Weiss complained of harassment, Davis asked for specifics. Weiss gave none. Weiss claimed
that he had heard false rumors regarding his being a drug addict but did not want to falsely
accuse anyone. Although suspecting Dean Catalano, Brad Meyer, Ruben Santiago, and
Manchung Wong, Weiss did not claim that he heard any rumors from them. Insofar as the
Company was to investigate his complaints, it needed to know where to start. How did Weiss
learn of the rumor? Davis requested Weiss to “put pen to paper” and state “[w]ho, what,
when.” Weiss never did so. Although asserting that he had taken pictures of his scratched
car, Weiss never provided them to the Company.
In order to establish a constructive discharge, the General Counsel must establish that
the burdens imposed upon the employee must cause, and be intended to cause, a change in
his working conditions so difficult or unpleasant as to force him to resign. Then it must be
shown that those burdens were imposed because of the employee’s protected activities.
Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976).
The General Counsel’s arguments relative to alleged pressures placed upon Weiss by
the Respondents and its unresponsiveness to his alleged claims of harassment are dependent
upon his credibility. Weiss was not credible. He claims that his denial to a Board agent that he
was solicited to circulate the antiunion petition was a lie as well as his denial regarding whether
he showed it to Davis. He claims to have untruthfully told Davis that he had sent the petition to
the Union. Although claiming to have pictures relating to the damage to his car, he did not
provide them to the Company. He never provided any specifics relating to alleged harassment.
After sending his resignation letter, he spoke with Berryhill and remained as an employee for
several days before finally quitting.
There is no evidence that the Respondents imposed any burdens upon Weiss or that the
burdens, which were not imposed, related to union activity or antiunion activity. Weiss
voluntarily quit and his quitting was unrelated to any imposition of burdens imposed by the
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Respondents. I shall recommend that this allegation be dismissed.
4. The documented coaching of Dean Catalano
Catalano was appointed as a shop steward in February 2009. In September 2009, he
observed a fellow employee leaving the restroom without washing his hands. The incident was
a subject of discussion among Catalano and other employees, and they were overheard by
Sales Manager Maia Menendez. Fabian Santos, one of the technicians in the conversation,
obtained the telephone number of the Orange County Health Department. Thereafter
Menendez questioned Catalano regarding why the employee were talking about “bathroom
stuff.” Catalano explained what had occurred and gave her the telephone number.
Menendez contacted the Orange County Health Department and discussed
concerns about “general hygiene, . . . sneezing into your elbow instead of sneezing into
your hand, [and] washing your hands regularly.” They also discussed concerns about the
H1N1 virus and precautions to take to avoid contracting the virus.
On October 2, a representative from the Health Department came to the dealership
and gave two identical presentations. Catalano attended the second presentation. The
presentation concentrated upon the H1N1 virus. At the close of the presentation, the
representative asked for questions. Catalano complained to the representative that she
had not addressed the problem that had been raised in September, leaving the restroom
without washing hands, and “that was my problem [a]nd your presentation didn’t bring up
anything [about] disease caused by people not . . . using proper cleanliness after using the
bathroom.” He stated that this was “not the meeting we were looking to have.” The
representative suggested that Catalano raise his concern with management. Catalano
responded that he had and “this is what” he got.
On October 13, 2009, Catalano was issued a documented coaching reminding him
that he needed to conduct himself “in a manner that is courteous, respectful and polite to
all associates, managers, customers, and guests of the dealership.” The coaching states
that it will not be part of the employee’s permanent record but will be retained in a local file
by the service manager.
The General Counsel, citing Atlantic Steel Co., 245 NLRB 814 (1979), argues that
Catalano was not rude and that, even if he were, his conduct did not lose the protection of the
Act. I would note that any speaker would consider statements indicating dissatisfaction with the
speaker’s presentation to be criticism. If the criticism of the presentation had been made to
Menendez or some other management official who was aware of the concerted concern of
employees relating to sanitary restroom habits, the considerations set out in Atlantic Steel Co.
would have been applicable. The representative of the Health Department was a public
employee who was a guest of the dealership and who was unaware of the events that had
prompted her invitation to give a presentation. Catalano, when speaking to the representative,
did not assert that he was speaking as a shop steward. When Catalano informed her that her
presentation was not what he had wanted and the representative suggested that he speak to
management, Catalano responded that he had done so and “this is what” he got. The
foregoing response was neither courteous, polite, nor protected. I shall recommend that
this allegation be dismissed.
F. The 8(a)(5) Allegations
As already set out in the procedural history herein, the Respondents are challenging the
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certification of the Union. Consistent with that position, it admits that it has refused to bargain.
All alleged 8(a)(5) violations are dependent upon enforcement of the Board Order in Mercedes-
Benz of Orlando, 355 NLRB No. 113 (2010).
The Respondents argue that, even assuming enforcement of the current Board Order,
any obligation to bargain should commence as of the amended certification date, August 23,
2010, because the “unique facts of this case are completely unprecedented, placing the parties
in uncharted territory.” I disagree. The Respondents, represented by experienced labor
relations counsel, were fully aware that an employer’s “obligation to bargain before making
changes commences not on the date of certification, but on the date of the election.” Mike
O’Connor Chevrolet, 209 NLRB 701, 704 (1974); Ramada Plaza Hotel, 341 NLRB.310, 315–
316 (2004). When shop steward Brad Meyer questioned Team Leader Alex Aviles about why
skill level reviews were not being done, Aviles answered that the MBO was concerned about
maintaining the status quo. On June 23, 2010, when the Supreme Court held that decisions by
the two-member Board were void in New Process Steel, L.P. v. NLRB, supra, no unique
circumstances were created. The situation was similar to those situations in which a Court of
Appeals has remanded a test of certification case to the Board. In Indiana Hospital, 315 NLRB
647 (1994), the union won a representation election in 1991. A Court of Appeals, in 1993,
remanded the employer’s test of certification case to the Board. The administrative law judge’s
decision was issued while the test of certification proceeding was pending. Id at 648 fn. 3. The
Board affirmed the decision of judge the who held that an employer acts “at its peril” when
making unilateral changes once the union has demonstrated majority status. Id. at 655.
The Respondents argue that the Board’s amending the certification date expressed its
“manifest intent to toll MBO’s bargaining obligation up to that point in time.” I again disagree. If
the Board had such a “manifest intent” it would have said so. Footnote 4 notes that the
amendment of the certification date was made “to the extent it may be relevant in future
proceedings.” That Board decision issued on August 23, 2010. This proceeding was already
pending insofar as the initial complaint, which included 8(a)(5) allegations, issued on March 31,
2010. This was a pending proceeding, not a future proceeding.
The Respondents, notwithstanding the foregoing arguments, put forth separate defenses
relating to the alleged unilateral changes.
1. The layoffs/discharges in April 2009
It has long been established “with few limited exceptions, that layoffs are a mandatory
subject of bargaining.” Winchell Co., 315 NLRB 526, 530 (1994). See also Holmes & Narver,
309 NLRB 146 (1992).
The decision of the Company to reduce its work force in April 2009, would have resulted
in layoffs except for the Company policy to discharge rather than lay off.
I have found that the layoff/discharges did not violate Section 8(a)(3) of the Act.
Notwithstanding that finding, layoffs are a mandatory subject of bargaining. The Company did
not either notify or bargain with the Union regarding the layoffs.
The Respondents argue that the “compelling economic circumstances” exception to the
obligation to bargain is applicable. That argument has no merit. “[I]t is well settled that a drop in
business does not rise to the level of an economic exigency or compelling economic
circumstances.” Uniserv, 351 NLRB 1361, 1369 (2007). A compelling economic circumstance
justifying a refusal to bargain with regard to the decision to lay off employees and the effects
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thereof must be “an unforeseen occurrence having a major economic effect . . . that requires the
company to take immediate action.” Angelica Healthcare Services Group, 284 NLRB 844, 853
(1987). There was noting unforeseen herein. The Company had experienced declining sales
and reduced income in its fixed operation for several months. The diminished sales and income
continued. In February, Service Director Bullock had informed the team leaders that they
should be thinking about identifying two members of their respective teams for separation. He
repeated that in March. Thereafter, pursuant to discussions fostered by Team Leader Aviles, an
alternate method of selection was developed. This was not an unforeseen occurrence. The
Respondents were obligated to bargain with the Union with regard to the layoff decisions and
the effects thereof. The Respondents, by unilaterally laying off Cazorla, Puzon, Poppo, and
Persaud, violated Section 8(a)(5) of the Act.
2. Skill level reviews
The complaint alleges that on or about January 23, 2009, and May 22, 2009, Alex Aviles
told employees that MBO had not conducted employee skill level reviews because of the Union.
The complaint further alleges that the Company suspended skill level reviews in January 2009
and reinstated them in August 2009 for employees on the red team and in October for
employees on the green and gold teams.
In a memorandum dated September 18, 2007, Service Director Art Bullock informed the
technicians that skill reviews for technicians would be performed “twice annually,” in January
and February and June and July. Bullock, in the memorandum, apologized for delay in
“completing the mid year review in a timely fashion” and notes that the January and February
and June and July schedule would “eliminate that happening in the future.”
Skill level reviews could result in a technician receiving a pay increase or a promotion to
a higher skill level which would automatically result in a pay increase. It is undisputed that, at
the relevant times herein, AutoNation had implemented a wage freeze; however, Berryhill
admitted that raises as a result of a promotion were not affected by the freeze.
Berryhill, when examined as an adverse witness pursuant to Rule 611(c) of the Federal
Rules of Evidence, admitted that skill level reviews were suspended and not resumed until the
late summer of 2009. Contrary to that testimony, technician Brad Meyer acknowledged that he
received a review, but no promotion, in May 2009. Thereafter, in August 2009, he received
another review and a promotion.
Meyer heard rumors that the skill level reviews were suspended in January 2009. He
spoke with his new team leader, Alex Aviles, who confirmed, as Meyer recalled, that “because
of the pending union negotiations and the status quo . . . we won’t be performing the skill
level reviews . . . [because] the skill level review is tied to your pay.” Meyer and Aviles
had a similar conversation in May when Meyer’s skill level review was conducted. On that
occasion, after having received a favorable evaluation, Meyer asked about being promoted
from skill level B+ to A. Aviles stated that “because of the status quo and the pending
negotiations, they couldn’t do anything with that . . . since it was tied to our pay.” Meyer
replied, “[T]hat’s not correct. . . . [I]f it was something you were doing before, you should
be doing it now.” Aviles said that was what “management told him.”
Notwithstanding the September 2007 policy memorandum from Bullock, both Meyer and
Aviles agree that skill level reviews had not always been conducted in a timely manner. Aviles
recalled that, when the reviews were not conducted in January, he informed the team that he
had been told that the reviews had been suspended because “with the status quo, we didn’t
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know if promoting somebody was violating that or not, so we had to wait until we got
clarification on that. . . . [W]e didn’t want to violate the status quo; we wanted to make
sure we were doing the right thing.” Aviles did not address his conversation with Meyer in
May. Aviles recalled that five technicians were promoted when word came down that
promotions could be granted.
The complaint alleges that the explanation given by Aviles informed employees that skill
level reviews were not given because of the Union. Aviles and Meyer agree that the
explanation related to maintaining the status quo. I shall recommend that the independent
8(a)(1) allegation related to the explanation given by Aviles be dismissed.
The Respondents argue that, due to the wage freeze, there was no “possible purpose”
that skill level reviews could serve, but then acknowledge that they were resumed “as a
testament to management’s obvious concern for the technicians group.” The foregoing does
not explain why they were resumed in the absence of any “possible purpose.”
There was a purpose to skill reviews even if the review did not result in a wage increase.
Although wage increases were dependent upon the reviews, so were promotions. Promotions
were not affected by the wage freeze. A skill level review would also put an employee on notice
that he had deficiencies. Insofar as an employee was not “on track” with regard to his skills,
notice of that fact and remedial action by the employee might well exempt that technician from
consideration for layoff/discharge if a further reduction-in-force were to occur.
Berryhill thought that skill level reviews resumed in the summer of 2009, but his
testimony in that regard was unclear. Insofar as Meyer received a skill level review in May, it
would appear that reviews for members of the red team resumed in May. It is undisputed that
reviews were resumed for all teams; thus the only issue is whether promotions were denied as a
result of the suspension. Aviles testified that five technicians were promoted once the
dealership received word that promotions could be granted. It is clear in the case of Meyer that
his promotion to an A technician was delayed until August 2009. The record does not establish
the identity of the four technicians other than Meyer who received promotions or when the
evaluations upon which their promotions were predicated occurred. They also should be made
whole if, at the compliance stage of this proceeding, it can be shown that the absence of a skill
level review in the first part of 2009 delayed their promotions. See United Rentals, 349 NLRB
853, 864 (2007).
The Respondents, by unilaterally suspending skill level reviews and thereby denying
promotions to employees who would have been promoted if those reviews had occurred,
violated Section 8(a)(5) of the Act.
3. Prepaid maintenance services
Prior to 2005 or 2006, Mercedes-Benz covered all maintenance during the warranty
period of the vehicle. After the vehicle had been driven 10,000 miles, the Flex A service was
performed. Thereafter, after the next 10,000 miles, the more comprehensive Flex B service was
performed. Thereafter the services continued to be alternated after every 10,000 to 12,000
miles. When Mercedes-Benz ceased providing free maintenance, AutoNation began offering a
prepaid maintenance package to purchasers of vehicles.
The technicians were formally paid for 1.2 hours when performing standard Flex A
maintenance and 4.2 hours for performing Flex B maintenance, which included changing the
brake fluid. The specified hourly payment was automatic. If the work was accomplished in a
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shorter time, it was to the technician’s advantage. If took longer than the allotted time, the
technician was still paid only for the specified time.
In January 2009, Aviles told Meyer that the Company was looking at changing the
AutoNation service “because the dealership was only getting paid X amount of dollars from
the corporate parent and that the dealership didn’t want to continue to absorb that loss.”
On February 1, 2009, Aviles distributed a document reflecting a reduction from 1.2 hours
to 1.1 hours for Flex A service and from 4.2 to 2.8 hours for Flex B service.
Service Sales Manager Menendez explained that the finance department informed
MBO that the items required under the AutoNation maintenance program were “not the
same as the items required by Mercedes-Benz.” When MBO discovered, after a few years,
that it was “doing the maintenance service according to the Mercedes-Benz standards,
which is far beyond what we were actually getting reimbursed for,” it adjusted the times for
which the technicians were paid.
Menendez did not specify any services provided under the AutoNation prepaid
maintenance package with its customers that could be eliminated, nor did she identify any
services formerly performed that were eliminated. Menendez admitted that the adjustment
in times lowered the earnings of the technicians when they were performing prepaid
maintenance work.
Changes directly affecting employees’ earnings are mandatory subjects of bargaining.
The Respondents, by unilaterally reducing the specified hours for performing prepaid
maintenance work, violated Section 8(a)(5) of the Act.
4. Payment for damages
On February 18, 2010, employee Dean Catalano recalls that Team Leader Brue Makin
handed a document to the members of his team which announced a change in policy insofar as
employees would be charged for damage to vehicles, 25 percent of the cost for a first instance,
50 percent for a second instance, and 100 per cent for a third instance. So far as the record
shows, the foregoing change was announced only to members of Makin’s team. There is no
evidence that the foregoing policy was ever enforced. Berryhill credibly testified that employees
have never been charged for damage they caused. Technicians repair the damage on their
own time, but the cost of any parts are absorbed by the Company. He recalled learning that
Makin had posted a notice and “I immediately said . . . take that down.” The General
Counsel presented no evidence that any employee ever had to pay for damage. The
General Counsel did not establish that there was a change in policy relating to damage to
vehicles. I shall recommend that this allegation be dismissed.
5. The information request
The Respondents, in their brief, do not address the information request of the Union. On
April 17, 2009, the Union, following its certification, requested information relating to
classifications, wage rates, and related information of bargaining unit employers and benefits
provided to them. The Company, by letter dated June 4, 2009, refused to provide the
information pending determination of its test of certification. The Union repeated its information
request on September 3, 2009, and the Company again, consistent with its testing of
certification, refused to provide the requested information.
Information relating to bargaining unit employees is presumptively relevant. Refusal to
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provide such information, notwithstanding an employer’s testing of certification, does not excuse
a failure to provide that information. United Cerebral Palsy of New York City, 343 NLRB 1
(2004). The Respondents, by failing and refusing to provide the Union with requested relevant
information regarding unit employees as requested in its letter of April 17, 2009, violated Section
8(a)(5) of the Act.
Conclusions of Law
1. The Respondents, by maintaining an unlawfully broad rule prohibiting all solicitation
on company property, by creating the impression that employees’ union activities were under
surveillance, by coercively interrogating employees regarding their knowledge of employee
union activity, their union activities, and their union sympathies, by soliciting employee
grievances and implying that they would be remedied in order to dissuade them from
supporting the Union, by informing employees that their grievances with regard to team
leaders had been adjusted by the demotion of the team leaders in order to dissuade them from
supporting the Union, and by informing employees that the Respondents would not recognize
the Union until there was a contract, violated Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. The Respondents, by discharging Anthony Roberts because of his union activities,
violated Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
3. The Respondents, by unilaterally laying off Juan Cazorla, Larry Puzon, David Poppo,
and Tumeshwar Persaud, by unilaterally suspending skill level reviews and thereby denying
promotions to employees who would have been promoted if those reviews had occurred, by
unilaterally reducing the specified hours for performing prepaid maintenance work, and by failing
and refusing to provide the Union with requested relevant information regarding unit employees
as set out in its letter of April 17, 2009, violated Section 8(a)(1) and (5) and Section 2(6) and (7)
of the Act.
Remedy
Having found that the Respondents have engaged in certain unfair labor practices, I find
that they must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondents must rescind the unlawfully broad rule prohibiting all solicitation on
company property.3
The Respondents, having unlawfully discharged Anthony Roberts, must offer him
reinstatement and make him whole for any loss of earnings and other benefits, computed on a
quarterly basis from December 8, 2008, to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at
the rate prescribed in New Horizons for the Retarded, 283 NLRB 1187 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
The Respondents, having unlawfully laid off Juan Cazorla, Larry Puzon, David Poppo,

3 Counsel for the General Counsel requests that I impose a “nationwide remedy” with regard to
the overly broad rule in the AutoNation Associate Handbook. My recommended order directs
recession of that rule.
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and Tumeshwar Persaud without notice to or bargaining with the Union regarding the decision
to lay off employees or the effects of that decision, must offer them reinstatement and make
them whole for any loss of earnings and other benefits, computed on a quarterly basis from April
3, 2008, to date of proper offer of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons
for the Retarded, 283 NLRB 1187 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB No. 8 (2010).
The Respondents, having unilaterally suspended skill level reviews thereby denying
promotions, it must make whole all employees who would have been promoted if those reviews
had occurred.
The Respondents, having unilaterally reduced the specified hours for performing prepaid
maintenance work, must restore the former hours specified for that work and make whole all
employees for any loss of earnings caused by the unilateral reduction.
The Respondents must provide the Union with the requested relevant information
regarding unit employees as set out in its letter of April 17, 2009.
The Respondent will also be ordered to post and email an appropriate notice.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4
ORDER
The Respondent, Contemporary Cars, Inc. d/b/a Mercedes-Benz of Orlando, Inc.,
Maitland, Florida, its officers, agents, successors, and assigns, and AutoNation, Inc., Fort
Lauderdale, Florida, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Maintaining an unlawfully broad rule prohibiting all solicitation on company property.
(b) Creating the impression that employees’ union activities are under surveillance.
(c) Coercively interrogating employees regarding their knowledge of employee union
activity, their union activities, and their union sympathies.
(d) Soliciting employee grievances and implying that they will be remedied in order
to dissuade them from supporting the Union.
(e) Informing employees that their grievances have been adjusted by the demotion of
team leaders in order to dissuade them from supporting the Union.
(f) Informing employees that the Respondents will not recognize the Union until there is

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
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a contract.
(g) Discharging employees because of their union activities.
(h) Laying off service technicians in the bargaining unit represented by the International
Association of Machinists and Aerospace Workers, AFL–CIO, without giving notice to and
bargaining with the Union regarding the decision to lay off and the effects of that decision.
(i) Unilaterally suspending skill level reviews thereby denying promotions to employees
who would have been promoted if those reviews had occurred.
(j) Unilaterally reducing the specified hours for performing prepaid maintenance work.
(k) Failing and refusing to provide the Union with requested relevant information.
(l) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the unlawfully broad rule prohibiting all solicitation on company property.
(b) Within 14 days from the date of this Order, offer Anthony Roberts full reinstatement
to his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
(c) Make Anthony Roberts whole for any loss of earnings and other benefits suffered as
a result of his discharge, in the manner set forth in the remedy section of the decision.
(d) Within 14 days from the date of this Order, remove from our files any reference to the
discharge of Anthony Roberts, and within 3 days thereafter, notify him in writing that this has
been done and that the discharge will not be used against him in any way.
(e) Within 14 days from the date of this Order, offer Juan Cazorla, Larry Puzon, David
Poppo, and Tumeshwar Persaud full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
(f) Make Juan Cazorla, Larry Puzon, David Poppo, and Tumeshwar Persaud whole for
any loss of earnings and other benefits suffered as a result of their discharges, in the manner
set forth in the remedy section of the decision.
(g) Make whole all employees who would have been promoted for any loss of earnings
suffered as a result of the suspension of skill level reviews.
(h) Restore the former hours specified for prepaid maintenance work and make whole all
employees for any loss of earnings caused by the unilateral reduction in specified hours.
(i) Provide the Union with the requested relevant information regarding unit employees
as set out in its letter of April 17, 2009.
(j) Preserve and, within 14 days of a request, or such additional time as the Regional
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Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to determine the amount of backpay due under the terms of this
Order.
(k) Within 14 days after service by the Region, post at its facilities in Maitland, Florida,
copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by
the Regional Director for Region 12 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by Respondent at any time since July 25, 2008.
(l) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., March 18, 2011.
_____________________
George Carson II
Administrative Law Judge
JD(ATL)–06–11
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered
us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT maintain a rule prohibiting all solicitation on company property.
WE WILL NOT create the impression that your union activities are under surveillance.
WE WILL NOT coercively interrogate you regarding your knowledge of employee union activity,
your union activities, and your union sympathies.
WE WILL NOT solicit your grievances and imply that they will be remedied in order to
dissuade you from supporting the Union, and WE WILL NOT adjust your grievances in order
to dissuade you from supporting the Union.
WE WILL NOT tell you that we will not recognize the Union until there is a contract.
WE WILL NOT discharge you because of your union activities.
WE WILL NOT lay off unit employees without notice to and bargaining with International
Association of Machinists and Aerospace Workers, AFL–CIO, regarding the decision to lay off
service technicians in the unit represented by the Union and the effects of that decision.
WE WILL NOT unilaterally suspend skill level reviews.
WE WILL NOT unilaterally reduce the specified hours for performing prepaid maintenance work.
WE WILL NOT fail and refuse to provide the Union with requested relevant information.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL rescind our unlawfully broad rule prohibiting all solicitation on company property.
WE WILL, within 14 days from the date of the Board’s Order, offer Anthony Roberts full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
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2
WE WILL make Anthony Roberts whole for any loss of earnings and other benefits suffered as a
result of his discharge, in the manner set forth in the remedy section of the decision.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the discharge of Anthony Roberts, and within 3 days thereafter, notify him in writing
that this has been done and that the discharge will not be used against him in any way.
WE WILL, within 14 days from the date of the Board’s Order, offer Juan Cazorla, Larry Puzon,
David Poppo, and Tumeshwar Persaud full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL make Juan Cazorla, Larry Puzon, David Poppo, and Tumeshwar Persaud whole for
any loss of earnings and other benefits suffered as a result of their discharges, in the manner
set forth in the remedy section of the decision.
WE WILL make whole all of you who would have been promoted for any loss of earnings
suffered as a result of the suspension of skill level reviews.
WE WILL restore the former hours specified for prepaid maintenance work and make all of you
whole for any loss of earnings caused by the unilateral reduction in specified hours.
WE WILL provide the Union with the requested relevant information regarding unit employees
as set out in its letter of April 17, 2009.
CONTEMPORARY CARS, INC. d/b/a MERCEDES-
BENZ OF ORLANDO, INC., and AUTONATION,
INC., A SINGLE EMPLOYER
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
201 E. Kennedy Blvd., South Trust Plaza, Suite 530, Tampa, FL 33602–5824, (813) 228–2641,
Hours: 8 a.m. to 4:30 p.m.
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 ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (813) 228–2455