Desert Toyota

National Labor Relations Board - Board Decisions

Dec 23, 2005

346 N.L.R.B. 118 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 3
118
T-West Sales & Service, Inc. d/b/a Desert Toyota and
International Association of Machinists and
Aerospace Workers, Local Lodge 744, AFL–
CIO. Cases 28–CA–17904 and 28–CA–18065
December 23, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 13, 2002, Administrative Law Judge
Lana Parke issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel filed an answering brief, and the Respon-
dent filed a reply. The General Counsel also filed lim-
ited cross-exceptions and a supporting brief, to which the
Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied.
I. INTRODUCTION
The Respondent operates a new and used car dealer-
ship and service facility in Las Vegas, Nevada. The is-
sues in this case concern the Respondent’s reactions in
early 2002 to the Union’s organizational efforts aimed
primarily at the Respondent’s automobile service techni-
cians. The judge found, and we agree, that the Respon-
dent violated Section 8(a)(1) when it (1) maintained an
overly broad no-solicitation rule,2 (2) coercively interro-
gated the service advisors, who work with the techni-
cians, solicited them to report on others’ union activities,
and created an impression of surveillance,3 (3) coercively

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We note that the Respondent excepted to the judge’s finding that
the maintenance of the rule violated Sec. 8(a)(1) but did not file excep-
tions to the judge’s findings that the rule was unlawfully promulgated
and discriminatory. Accordingly, we adopt the latter findings pro
forma in the absence of exceptions.
3 The service advisors were neither part of the unit in which the Un-
ion claimed majority support nor part of the unit the judge found ap-
propriate, despite the Respondent’s argument that they be included.
Nevertheless, the unfair labor practices were committed early in the
Union’s organizational campaign at a time when the service advisors
were still considered to be potential targets of the campaign. Thus, the
unlawful statements made to them directly involved their rights to
engage in Sec. 7 activities.
In finding a violation for creating the impression of surveillance, we
rely on evidence that the service director, Pat Burke, or his successor
interrogated, solicited grievances from, and impliedly
promised benefits to service technician Jorge Galindo,
and (4) coercively interrogated service technician Tho-
mas Pranske twice and made statements to Pranske link-
ing Galindo’s discharge to his support of the Union.4 We
also agree with the judge, for the reasons set out below,
that the Respondent violated Section 8(a)(3) and (1)
when it discharged Galindo. Unlike the judge, however,
we find that the coercive effects of the Respondent’s
unlawful conduct can be alleviated by the use of the
Board’s traditional remedies. Thus, we reverse the
judge’s recommendation that a Gissel5 bargaining order
issue.6
II. DISCHARGE OF JORGE GALINDO
In January 2002,7 the Union commenced an organizing
campaign among approximately 130 auto dealerships and
auto repair shops in Las Vegas, Nevada. On January 13,
the Union held an information meeting that four of the
Respondent’s employees, including Jorge Galindo, at-
tended. At the end of the meeting, Galindo signed an
authorization card. In the following weeks, Galindo ar-
ranged and attended meetings between union representa-
tives and others of the Respondent’s employees. At each
of these meetings, additional employees signed authori-
zation cards.
During this time, the Respondent’s supervisors and
managers engaged in conduct that we have found, in
agreement with the judge, violated Section 8(a)(1).
Much of that conduct concerned Galindo. Early in the
Union’s campaign, Service Directors Burke or Casucci
told service advisors that Galindo was promoting the
Union and taking employees to union meetings. In mid-
March, the Respondent’s general manager, Bob Car-
mendy, solicited grievances from Galindo, implicitly

Vincent Casucci told service advisors that technician Jorge Galindo
was promoting the Union and taking people to a union meeting. We
view this conduct as separate and distinct from Burke’s solicitation of
service advisors to report on technicians’ union activities.
Member Schaumber agrees that the Respondent, through Burke,
unlawfully solicited the service advisors to report on others’ union
activities. The General Counsel alleged that Burke’s solicitation cre-
ated an impression of surveillance and the judge also found that viola-
tion. Member Schaumber finds it unnecessary to pass on whether that
solicitation also violated Sec. 8(a)(1) under that theory.
4 Reconditioning Manager Tony Zita committed these acts. The Re-
spondent denied Zita’s supervisory status. The judge found, and we
agree, that Zita was a supervisor within the meaning of Sec. 2(11). In
support of this finding, we rely only on the uncontradicted testimony
that he had authority to hire and actually did hire employees. See Three
Sisters Sportswear Co., 312 NLRB 853, 864 (1993).
5 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
6 Because of our disposition of the judge’s recommended remedial
bargaining order, we do not pass on the judge’s appropriate unit find-
ing.
7 All dates are 2002, unless otherwise noted.
DESERT TOYOTA 119
promised benefits, and asked him what he thought about
the Union. Galindo told Carmendy that he had attended
the first union meeting. In February or March, Supervi-
sor Tony Zita asked Pranske if either he or Galindo were
involved with the Union. Then, on March 21, Zita called
Pranske into his office where Casucci was also present.
The supervisors asked Pranske if Galindo was involved
in organizing the Union. When Pranske said that
Galindo was, Casucci responded, “[t]hat’s what we
needed to know.” Later that same day, Zita told Pranske
that Carmendy said that the Respondent would have to
fire Galindo.
The next day, March 22, the Respondent terminated
Galindo’s employment. Upon arriving at work, Galindo
was called into Casucci’s office. Casucci told Galindo,
“I’m going to have to let you go because we’re trying to
reduce costs by April 1st, and . . . you’ve gotten to a
point where you [have a] bad attitude and [your] work
performance is bad and productivity.” Casucci did not
get any more specific. Casucci also criticized Galindo’s
work on two different cars.8 Casucci said the matter was
not personal, but that “it came from up front.” The fol-
lowing day, Zita told Pranske that the problem with the
Union was taken care of.
On Galindo’s termination form, Casucci noted as “rea-
son[s] for termination” both “Reduction in Force” and
“Other.” He elaborated by adding “overall job perform-
ance—decline in job performance, attitude.” On the
“employee evaluation” portion of the form, Casucci gave
Galindo generally positive ratings, including “satisfac-
tory” ratings for both cooperation and quality of work.
No “unsatisfactory” rating was marked. As to “rehire,”
Casucci marked “yes.”
At the hearing, Casucci offered additional reasons for
having terminated Galindo. He testified that, although he
was unhappy with Galindo and his attitude as early as
November 2001, he did not decide to terminate Galindo
until the latter part of March.9 He was “furious” at
Galindo for going “over his head” at that time in ap-
proaching Carmendy to request a pay raise.10 Casucci
claimed that Galindo had a “very down, very dark” atti-
tude and failed to “respond” to Casucci’s attempts at
conversation, which Casucci perceived as a “total lack

8 According to Galindo, prior to this instance, Casucci had never
complained to him about his attitude or his work on the cars.
9 Despite this testimony, the record demonstrates that Casucci
praised Galindo on several occasions in January and February, includ-
ing calling Galindo his “top guy.”
10 Galindo’s request was premised on his successful passing of two
ASE certification tests. He requested the raise from Casucci three
times without success before approaching Carmendy.
and disregard of any respect towards [him].”11 Casucci
also testified that Galindo’s low labor hours were a per-
formance concern, as was his customer service index
(CSI) rating,12 which ranked Galindo as third from the
bottom in the Respondent’s shop for the year 2001.
Summarizing, Casucci testified that he terminated
Galindo “basically on his attitude, his CSI, and his labor
hours.” During cross-examination, Casucci testified that
he terminated Galindo because they “couldn’t communi-
cate and couldn’t get along.” He also testified that he did
not discuss Galindo’s CSI rating with him until the date
of termination.13
The Respondent presented no evidence that other em-
ployees had been either disciplined or discharged for
having bad attitudes, poor communication skills, or low
CSI ratings. There is also no evidence that the two em-
ployees who had lower CSI ratings than Galindo were
notified of their low ratings, much less subjected to dis-
cipline or discharged because of them.
On these facts, we find that the Respondent discharged
Galindo in violation of Section 8(a)(3) and (1). Our
analysis of whether the discharge violated the Act is
governed by the test articulated in Wright Line.14 Under
that test, the General Counsel must prove by a prepon-
derance of the evidence that union animus was a substan-
tial or motivating factor in the adverse employment ac-
tion. The elements commonly required to support such a
showing are union or protected activity by the employee,
employer knowledge of that activity, and union animus
on the part of the employer.15 See Willamette Industries,
341 NLRB 560, 562 (2004).

11 Casucci testified that he discussed Galindo’s attitude with him, but
the judge discredited that testimony. The Respondent did not except to
that credibility finding.
12 The CSI rating is a numerical score between 0 and 100, obtained
through randomly distributed customer surveys. The surveys are not
distributed by the Respondent, but by Toyota. The rating system is
uniform among Toyota dealerships and service centers nationwide.
13 The judge found that Casucci did not look at Galindo’s CSI rating
until the latter part of March. The record clearly shows that Casucci
monitored the CSI ratings weekly because he considered them ex-
tremely important. This inadvertent error does not affect our decision.
14 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
15 Regarding the Wright Line analysis, Member Schaumber notes
that the Board and circuit courts of appeals have variously described
the evidentiary elements of the General Counsel’s initial burden of
proof under Wright Line, sometimes adding as an independent fourth
element the necessity for there to be a causal nexus between the union
animus and the adverse employment action. See, e.g., American Gar-
dens Management Co., 338 NLRB 644, 645 (2002). As stated in
Shearer’s Foods, Inc., 340 NLRB 1093, 1094 fn. 4 (2003), since
Wright Line is a causation analysis, Member Schaumber agrees with
this addition to the formulation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD120
If the General Counsel makes the required initial
showing, the burden then shifts to the employer to prove,
as an affirmative defense, that it would have taken the
same action even in the absence of the employee’s union
activity. See Manno Electric, 321 NLRB 278, 280 fn. 12
(1996). To establish this affirmative defense, “[a]n em-
ployer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evi-
dence that the same action would have taken place even
in the absence of the protected activity.” W. F. Bolin Co.,
311 NLRB 1118, 1119 (1993), petition for review denied
70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139
(6th Cir. 1996).
Here, the General Counsel has met his burden to prove
that Galindo’s union activity was a substantial or moti-
vating factor leading to his discharge. Galindo engaged
in union activity by attending union meetings, signing an
authorization card, and facilitating meetings between
union officials and the Respondent’s employees. The
Respondent knew of this activity because (1) Galindo
told Carmendy that he had attended a union meeting, (2)
Burke or Casucci told service advisers that Galindo was
a union supporter, and (3) through unlawful interroga-
tion, Casucci confirmed that Galindo was involved in
organizing the Union. The Respondent’s animus is clear
from its several violations of Section 8(a)(1), including
those focused on Galindo’s union activities.
The timing of the discharge also indicates that
Galindo’s union activities were a substantial or motivat-
ing factor leading to the discharge. Through its interro-
gation of Pranske, the Respondent confirmed Galindo’s
role in organizing the shop’s employees on March 21.
Upon learning this, Casucci stated, “[t]hat’s what we
needed to know.” The very next day, Galindo was dis-
charged. Although Casucci testified that he had been
troubled by Galindo’s attitude since November 2001, he
did not decide to terminate Galindo until late March and
did not do so until the day after he confirmed that
Galindo was active in organizing the Union. See Na-
tional Steel Supply, Inc., 344 NLRB 973–974 (2005)
(timing of adverse action found indicative of discrimina-
tory motive where discipline did not issue until shortly
after employer learned about union campaign and only
one business day after interrogating employee about un-
ion activities).
For all these reasons, we find that the General Counsel
has demonstrated that Galindo’s union activity was a
substantial or motivating factor leading to his discharge.
Therefore, under Wright Line the burden shifts to the
Respondent to prove it would have taken the same action
even in the absence of Galindo’s union activity. We find
that the Respondent has failed to carry this burden.
First, the Respondent has offered several different rea-
sons for discharging Galindo. The termination form
noted “reduction in force” as well as “decline in job per-
formance, attitude” as reasons for the discharge. Casucci
told Galindo that the Respondent needed to “reduce
costs” as well as noting his alleged deficiencies in per-
formance. Casucci also told Galindo that the decision
came from “up front,” or higher management. At the
hearing, Casucci dropped the reduction in force and costs
reasons, emphasizing instead Galindo’s bad attitude, and
deficiencies in performance, e.g., his low CSI score and
low labor hours. He also changed the source of the deci-
sion to discharge Galindo from someone “up front” to
himself when he provided two new personal reasons for
the decision: Casucci’s “fur[y]” at Galindo for going
“over his head” by approaching Carmendy for a raise;
and Casucci’s perception, based on Galindo’s failure to
engage him in smalltalk, that Galindo lacked respect for
him. By adding these makeweight reasons during the
hearing, and thereby changing the source of the decision
to discharge Galindo, it appears that the Respondent was
simply making up its defense as it went along. Such a
shifting of reasons has long been held to be a clear in-
dicium of discriminatory or unlawful intent. See C.D.S.
Lines, Inc., 313 NLRB 296, 300 (1993); see also Aratex
Services, 300 NLRB 115 fn. 9 (1990) (citing Shattuck
Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966)).
Second, Casucci’s acknowledgment that he did not no-
tify Galindo of his performance deficiencies until the
moment of termination, despite his alleged longstanding
concern, belies the Respondent’s claim that they were the
true reasons for his discharge. Similarly, the genuineness
of Casucci’s concerns about Galindo’s performance and
attitude is called into question by his contemporaneous
praise of Galindo and by the favorable comments he
made on Galindo’s exit evaluation form about satisfac-
tory cooperation and quality of work. Furthermore, there
is no evidence that the two employees who had lower
CSI ratings than Galindo were even notified of their low
ratings, much less discharged because of them.
An employer, of course, has the right to determine
when discipline is warranted and in what form. “It is
well established that ‘[t]he [B]oard cannot substitute its
judgment for that of the employer’ and decide what con-
stitutes appropriate discipline.” Detroit Paneling Sys-
tems, 330 NLRB 1170, 1171 fn. 6 (2000) (quoting Cor-
riveau & Routhier Cement Block, Inc. v. NLRB, 410 F.2d
347, 350 (1st Cir. 1969)). However, it is the role of the
Board to evaluate whether the reasons the employer prof-
fered for the discipline were the actual reasons or mere
pretexts. Id. In this case, we find that the Respondent’s
DESERT TOYOTA 121
reasons were pretextual. Upon learning that Galindo was
actively involved in the Union’s organization campaign,
Respondent decided to terminate him and groped for
reasons to substantiate that decision. Having found that
the asserted legitimate defenses for Galindo’s discharge
were pretextual, we find that the Respondent failed to
prove by a preponderance of the evidence that it would
have discharged Galindo even in the absence of his pro-
tected union activities. It therefore violated Section
8(a)(3) and (1).
REMEDY
The judge found, relying on Gissel, that the Respon-
dent’s unfair labor practices so tainted the atmosphere
that the possibility of assuring a fair election was slight,
and therefore that a bargaining order was warranted.
Contrary to the judge, we find that a bargaining order is
unnecessary in the circumstances presented here and that
the Respondent’s unlawful conduct can be adequately
remedied through use of traditional remedies.
Under Gissel, the Board will issue a remedial
bargaining order, absent an election, in two catego-
ries of cases. The first category is “exceptional”
cases, those marked by unfair labor practices so
“outrageous” and “pervasive” that traditional reme-
dies cannot erase their coercive effects, thus render-
ing a fair election impossible. 395 U.S. at 613–614.
The second category involves “less extraordinary
cases marked by less pervasive practices which
nonetheless still have a tendency to undermine ma-
jority strength and impede election processes.” Id. at
614. In the latter category of cases, the “possibility
of erasing the effects of past practices and of ensur-
ing a fair election . . . by the use of traditional reme-
dies, though present, is slight and[, therefore,] em-
ployee sentiment once expressed [by authorization]
cards would, on balance, be better protected by a
bargaining order.” Id. A Gissel bargaining order,
however, is an extraordinary remedy. The preferred
route is to provide traditional remedies for the unfair
labor practices and to hold an election, once the at-
mosphere has been cleansed by those remedies.
Aqua Cool, 332 NLRB 95, 97 (2000).
Hialeah Hospital, 343 NLRB 391, 395 (2004).
“In determining the propriety of a remedial bargaining
order, the Board examines the seriousness of the viola-
tions and the pervasive nature of the conduct, consider-
ing such factors as the number of employees directly
affected by the violations, the size of the unit, the extent
of dissemination among employees, and the identity and
position of the individuals committing the unfair labor
practices.” Garvey Marine, Inc., 328 NLRB 991, 993
(1999), enfd. 245 F.3d 819 (D.C. Cir. 2001). Accord:
Holly Farms Corp., 311 NLRB 273, 281 (1993), enfd. 48
F.3d 1360 (4th Cir. 1995), cert. denied in pertinent part
516 U.S. 963 (1995). After carefully considering these
factors, we find that a remedial bargaining order is not
proper in this case.
The Respondent committed a number of unfair labor
practices. It maintained an unlawful no-solicitation rule.
It unlawfully interrogated the service advisors, solicited
them to report on other employees’ union activities, and
created an impression of surveillance.16 Further, the Re-
spondent twice interrogated Pranske about his union ac-
tivities and those of others. It also interrogated Galindo,
solicited grievances, and impliedly promised benefits to
him. These violations, without more, would not make
this a Gissel category II case requiring consideration of
the need for a remedial bargaining order.
In this regard, the unit found appropriate by the judge
had 31 employees.17 It did not include the service advi-
sors and there is no evidence that reports of the unfair
labor practices committed against them were dissemi-
nated to unit employees. While other violations were
aimed at unit employees, with the exception of the Re-
spondent’s promulgation and maintenance of an unlawful
no-solicitation rule, none of these unfair labor practices
occurred on a unit-wide basis. In fact, only two unit em-
ployees, Pranske and Galindo, were directly affected by
them and there is no evidence that these unfair labor
practices were disseminated beyond the single employee
involved in each incident.18
However, the Respondent also unlawfully discharged
Galindo, the principal employee organizer, and made
statements to Pranske linking the discharge to Galindo’s
organizational activities. Clearly, threats of loss of em-
ployment and the actual discharge of an active union

16 As noted, Member Schaumber finds it unnecessary to reach the
impression of surveillance allegation.
17 We do not pass on the judge’s finding of an appropriate unit.
Nevertheless, in reviewing the judge’s recommendation to issue a bar-
gaining order, we assume for the sake of argument that the unit found
appropriate by the judge was an appropriate unit and that a majority of
that unit signed valid authorization cards.
18 This is distinguishable from the situation in Aldworth, Inc., 338
NLRB 137, 151 (2002), where the employer’s statements linking ad-
verse employment actions to protected activity were widely dissemi-
nated during large group meetings.
Union Organizer James Rodehorst testified that three other formerly
active union supporters declined to attend a union meeting after
Galindo’s discharge because they did not want to lose their jobs. The
judge found that this testimony demonstrated the impact of the Respon-
dent’s actions. As the Respondent argued in its exceptions, that testi-
mony was uncorroborated hearsay. We therefore give it little weight.
At most, the testimony would only support a finding that a total of five
unit employees were affected in any way by the Respondent’s unlawful
conduct. That is not a significant portion of the 31-employee unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD122
supporter are “hallmark” violations frequently relied
upon to support a bargaining order, but the commission
of “hallmark” violations does not always allow for the
imposition of this extraordinary remedy. See, e.g.,
Pyramid Management Group, Inc., 318 NLRB 607, 609
(1995), enfd. mem. 101 F.3d 681 (2d Cir. 1996) (the
unlawful discharge of two union supporters, in the ab-
sence of other hallmark violations, insufficient to support
bargaining order in a 69-employee unit), and Phillips
Industries, 295 NLRB 717, 718 (1989) (the unlawful
discharge of two primary in-house union supporters, in
the absence of other hallmark violations, insufficient in a
90-employee unit). Here, we find that, as in the cited
cases, the discharge and threat did not impact a signifi-
cant portion of the bargaining unit,19 and the Respon-
dent’s unlawful conduct, even though committed in some
cases by high-ranking officials, can be adequately re-
dressed by the traditional remedies provided herein.20
To be sure, any lingering effects due to the Respon-
dent’s discriminatory discharge of Galindo will be reme-
died by the reinstatement and backpay we order today.
Galindo’s reinstatement will undoubtedly send a strong
message to both the Respondent and its employees that
employer interference with its employees’ Section 7 ac-

19 Member Schaumber does not reach the issue of whether Zita’s
remarks should be viewed as a “hallmark” violation because he would
find in any event that a Gissel bargaining order is not appropriate here.
20 Accord: Hialeah Hospital, supra, 343 NLRB at 395–396 (no Gis-
sel bargaining order where the employer committed a retaliatory dis-
charge and multiple 8(a)(1) violations, including threats, surveillance,
promises of benefits, and removal of benefits, in a 12-employee unit);
Jewish Home for the Elderly of Fairfield County, 343 NLRB 1069
(2004) (no Gissel bargaining order where the employer, among other
things, granted a unit-wide wage increase, discharged a leading union
activist the day before the election, threatened employees with plant
closure, and engaged in surveillance); and Desert Aggregates, 340
NLRB 289, 293–294 (2003) (no Gissel bargaining order where the
employer unlawfully solicited and promised to remedy employee griev-
ances and laid off for 3 months 2 leading union supporters in a unit of
11 employees). In each of these cases, the Board found traditional
remedies adequate to redress more serious and more pervasive unfair
labor practices than those committed by the Respondent here.
We note that, during the pendency of this case, the Union filed addi-
tional charges, alleging violations of Sec. 8(a)(1), (3), (4), and (5),
against the Respondent. On the basis of the conduct found to be unlaw-
ful herein and the conduct alleged against the Respondent in Desert
Toyota, Case 28–CA–18478 (Desert Toyota II), the Board authorized
the General Counsel to seek 10(j) relief, including an interim bargain-
ing order, against the Respondent. The United States District Court for
the District of Nevada granted that relief on February 20, 2004. As
more fully described in our decision in Desert Toyota II, 346 NLRB
132 (2005), also issued this day, of the many allegations against the
Respondent in the second case, we find only a single 8(a)(1) violation.
Even considering this additional unlawful conduct, we find that a re-
medial bargaining order is not appropriate in this case.
tivities will not be tolerated. See Abramson, LLC, 345
NLRB 171, 177 (2005).21
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, T-West
Sales & Service, Inc. d/b/a Desert Toyota, Las Vegas,
Nevada, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Delete paragraph 2(a) and reletter the remaining
paragraphs.
2. Substitute the following for relettered paragraph
2(c).
“(c) Within 14 days from the date of this Order, re-
move from its files any reference to Jorge Galindo’s
unlawful discharge, and, within 3 days thereafter, notify
him in writing that this has been done and that his unlaw-
ful discharge will not be used against him in any way.”

21 Contrary to the majority, Member Liebman would find a Gissel
bargaining order warranted in this case. In her view, the Respondent
has committed hallmark violations, not only unlawfully discharging the
primary union activist, Galindo, but also indirectly threatening another
employee whom it questioned about Galindo’s union involvement.
Threats of discharge and actual discharge of union activists are among
the most flagrant interferences with Sec. 7 rights, and are likely to more
enduringly disrupt election conditions than other unfair labor practices.
See, e.g., Aldworth Co., 338 NLRB 137 (2002); Hialeah Hospital,
supra (Member Liebman dissenting in part, citing cases). Here, the
discharge of Galindo was exacerbated by the Respondent’s statements
to employee Pranske linking Galindo’s discharge with his union activi-
ties. See Aldworth Co., supra, 338 NLRB at 149; cf. Hialeah Hospital,
supra; Desert Aggregates, 340 NLRB 289 (2003). In fact, Union Or-
ganizer Rodehorst testified that three formerly active union supporters
told him that they did not attend a union meeting following Galindo’s
discharge because they did not want to lose their jobs. As set forth in
our decision today in Desert Toyota II, supra, the Respondent’s unfair
labor practices affected another employee, Charles Frankhouse, who
the Respondent warned not to discuss the Union and threatened to
segregate from other employees. At least one of the Respondent’s
unfair labor practices, the dissemination of an unlawful no-solicitation
rule, impacted the employees on a unit-wide basis. Furthermore, the
probable impact of unfair labor practices is increased when, as here, a
relatively small bargaining unit is involved. See Justak Bros. & Co., v.
NLRB, 664 F.2d 1074, 1081 (7th Cir. 1981). Moreover, the Respon-
dent made no effort to neutralize the effect of its unlawful actions.
Member Liebman concludes that the effect of these violations is
unlikely to be dissipated by the Board’s traditional remedies, and would
therefore grant the Gissel order.
DESERT TOYOTA 123
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge any of you for supporting In-
ternational Association of Machinists and Aerospace
Workers, Local Lodge 744, AFL–CIO (the Union), or
any other union.
WE WILL NOT maintain an overly broad or discrimina-
tory no-solicitation rule requiring employees to obtain
preauthorization before engaging in any solicitation or
distribution and prohibiting employees from engaging in
any solicitation or distribution during working hours.
WE WILL NOT ask you to tell us your grievances and
impliedly promise to remedy them in order to dissuade
you from supporting the Union, or any other union.
WE WILL NOT coercively question you about your un-
ion support or activities.
WE WILL NOT ask you to watch other employees to
learn about their union support or activities.
WE WILL NOT cause you to believe that we are watch-
ing you to learn of your union support or activities.
WE WILL NOT tell any employee that we will discharge
another employee because of union activities.
WE WILL NOT tell any employee that we have dis-
charged another employee because of union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jorge Galindo full reinstatement to his for-
mer 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.
WE WILL make Jorge Galindo whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Jorge Galindo, and WE WILL, 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.
T-WEST SALES & SERVICE, INC. D/B/A/ DESERT
TOYOTA
Joel C. Schochet, Atty., for the General Counsel.
Douglas R. Sullenberger and James M. Walters, Attys. (Fisher
& Phillips, LLP), of Atlanta, Georgia, for the Respondent.
James Rodehorst and Kenneth Blucher, Apprentice Organizer
and Organizer, respectively, International Association of
Machinists and Aerospace Workers, of Wichita, Kansas.
DECISION
STATEMENT OF THE CASE
LANA PARKE, Administrative Law Judge. This case was
tried in Las Vegas, Nevada, on September 10 and 11, 2002.1
Pursuant to charges filed by International Association of Ma-
chinists and Aerospace Workers, Local Lodge 744, AFL–CIO
(the Union), the Regional Director for Region 28 of the Na-
tional Labor Relations Board (the Board) issued an order con-
solidating cases, consolidated complaint and notice of hearing
(the complaint) on June 27. The complaint alleges that T-West
Sales & Service, Inc. d/b/a Desert Toyota (Respondent) vio-
lated Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act) and that its alleged conduct is so serious and sub-
stantial as to require issuance of a bargaining order.2
Issues
1. Did Respondent violate Section 8(a)(3) and (1) of the Act
by discharging Jorge Galindo (Galindo) on March 22?
2. Did Respondent independently violate Section 8(a)(1) of
the Act by the following conduct:
(a) Since January 18, promulgating and maintaining an
overly broad and discriminatory no-solicitation rule requiring
employees to obtain preauthorization before engaging in any
solicitation or distribution and prohibiting employees from
engaging in any solicitation or distribution during working
hours.
(b) During the period January to April, interrogating em-
ployees.

1 All dates are in 2002, unless otherwise indicated.
2 Respondent’s unopposed post hearing motion to correct the tran-
script is granted. The corrections are accepted as ALJ Exh. 1.
At the hearing, the General Counsel amended the complaint to in-
clude an allegation that Tony Zita is a supervisor within the meaning of
the Act, and that he and Vincent Casucci, admitted supervisor, engaged
in unlawful interrogation of employees in March. Respondent denied
the amended allegations. The General Counsel also amended the unit
description to include used car technicians, which Respondent admit-
ted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD124
(c) During the period January to April, creating an impres-
sion of surveillance of employees’ union activities.
(d) On March 6, soliciting employee complaints and griev-
ances and thereby promising employees increased benefits and
improved terms and conditions of employment if they refrained
from supporting the Union.
3. What is the relevant appropriate unit of Respondent’s em-
ployees for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act?
4. Did a majority of the relevant appropriate unit designate
and select the Union as its collective-bargaining representative?
5. Is a bargaining order an appropriate remedy?
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Nevada corporation, is engaged in the busi-
ness of new car sales and service with a facility in Las Vegas,
Nevada (the facility). During a representative 12-month period
ending April 29, Respondent annually derived gross revenues
of $500,000 and purchased and received at the facility goods
valued in excess of $50,000 directly from points outside the
State of Nevada. Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.3
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Union Campaign
In January, Jack Nugent (Nugent), union grand lodge repre-
sentative, and James Rodehorst (Rodehorst), union grand lodge
apprentice organizer, commenced an organizing campaign
among approximately 130 auto dealerships and auto repair
shops in Las Vegas, Nevada (Las Vegas). The two representa-
tives, along with 120 union staff employees, hand-billed every
truck and new car dealership and auto body shop in the Las
Vegas-Henderson area with invitations to a union information
meeting on January 13.4
Four of Respondent’s employees, including Galindo, at-
tended the January 13 union meeting. At the conclusion of the
meeting, union representatives seated at a table at the rear of
the room gave attendees union authorization cards to fill out
and sign. Ramon H. Bautista, Jorge Galindo, and Mark Stine
signed authorization cards. All union authorization cards rele-
vant to this case state, “I, the undersigned, an employee of
(Company)_____________ hereby authorize the International

3 Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged credible
evidence.
4 Of the businesses hand-billed, Respondent, Desert Dodge, and De-
sert BMW are among 11 dealerships of Desert Auto Group, which is
owned by AutoNation. Union guidelines provide that 65 percent of
employees in a shop must have signed authorization cards before the
Union files a petition, and in the week prior to an election, at least 65
percent of the employees must sign a “vote yes” for the Union to go to
election.
Association of Machinists and Aerospace Workers (IAM) to act
as my collective bargaining agent with the company for wages,
hours and working conditions.” Spaces for name, date, address,
department, shift, phone, classification, social security number,
and signature follow.
Rodehorst who was in charge of organizing Respondent’s
employees designated Galindo as contact employee. On Janu-
ary 15, Rodehorst, by telephone, asked Galindo to provide the
Union with a list of Respondent’s employees, the employee
handbook, and any antiunion material the Company might dis-
tribute and scheduled a meeting with him for January 17.
Galindo, who had previously worked at Desert BMW, arranged
a meeting between two employees at Desert BMW and the
Union and arranged several meetings with union representa-
tives and other employees.
Galindo and employee Elias Nabizada (Nabizada) attended
the January 17 meeting and Nabizada signed a union authoriza-
tion card in Rodehorst’s presence. On February 11, Galindo
and 11 other employees attended a meeting with Rodehorst at
the Big Inning restaurant. At that meeting, Dana Coffield, Mil-
ton Contreras, Richard Drugmand, Kevin Halter, Clayton
LaMoya, Carl Nigera, Joel MacRae, Curtis Miller, and James
Morgan signed representation cards in the presence of Rode-
horst. Galindo attended additional meetings with Rodehorst
and employees who signed union authorization cards in Rode-
horst’s presence: on February 19, Richard Bryant and on Feb-
ruary 25, Woodrow Wilson. Respondent’s employees who
signed authenticated authorization cards are listed below with
job classification and date of signing:
Employee Name Job Classification Date of Signing
Bautista, Ramon H. Toyota service tech January 135
Bryant, Richard Toyota service tech February 19
Canfield, Dana Toyota service tech6 February 11
Contreras, Milton M. Toyota service tech February 11
Drugmand, Richard Toyota service tech February 11
Galindo, Jorge A. Toyota service tech January 13
Halter, Kevin used car tech February 11
LaMoya, Clayton G. Toyota service tech February 11
MacRae, Joel R. Toyota service tech7 February 11
Magiera, Varl lube technician February 11
Miller, Curtis Toyota service tech February 11
Moran, James Toyota service tech February 11
Nabizada, Elyas used car tech January 18
Pranske, Thomas M. used car tech February 11
Schwarz, Erick Toyota service tech February 11
Stine, Mark lube technician January 138

5 Although the card is dated 1–14–02, the actual signing date is Janu-
ary 13.
6 While Bryant may have been an apprentice technician at some pe-
riod during the union campaign, the parties stipulated that he was ap-
propriately in any auto service technician unit.
7 Although employed as an apprentice technician for some part of
the relevant period, the parties agree that MacRae was appropriately in
any auto service technician unit.
DESERT TOYOTA 125
Wilson, Woodrow A. Toyota service tech February 25
On March 20, Rodehorst and Union Representative Mike
Warble gave Galindo invitation cards to distribute to Respon-
dent’s technician employees.9 In addition to time, location, and
telephone numbers, the cards read:
Automotive Service Technicians Lunch,
Sunday, March 24th
I.A.M. & A.W. invites you to attend your union
recognition commitment meeting.
Employees Miller, Halter, and Drugmand told Rodehorst they
planned to attend the March 24 meeting.
On March 22, Galindo informed Rodehorst, by telephone,
that Respondent had fired him. Thereafter, Rodehorst spoke to
Miller, Halter, and Drugmand, all of whom declined to attend
the March 24 meeting, saying they did not want to lose their
jobs. None of Respondent’s employees attended the March 24
meeting. Thereafter, although some employees met individually
with Rodehorst, he was unable to persuade any of Respondent’s
employees to meet with him in a group or to continue organiz-
ing efforts.
B. The 8(a)(1) Allegations
1. No-solicitation rule
The complaint alleges that since at least January 18, Respon-
dent has promulgated and maintained an overly broad and dis-
criminatory no-solicitation rule.
Since 2000, Respondent has maintained an employee hand-
book entitled “AutoNation Associate Handbook, Human Re-
sources Policies and Procedures, 2000 edition.” In pertinent
part, the handbook reads:
Selling or Soliciting on Company Property
Unless it has been authorized in advance by an Officer of the
Company, you may not solicit for organizations, sell goods or
services, or distribute catalogs or literature of any kind on
Company property during your working hours.
The Board has consistently ruled that prohibitions on “distri-
bution of literature are presumed valid unless they extend to
activities during nonworking time and in nonworking areas.”
Hale Nani Rehabilitation & Nursing Center, 326 NLRB 335
(1998) [citations omitted].
The Board considers that any “rule prohibiting distribution
of literature on employees’ own time and in nonworking areas
is presumptively invalid. [Citations omitted].” TeleTech Hold-
ings, Inc., 333 NLRB 402, 403–404 (2001). In Our Way, Inc.,
268 NLRB 394 (1983), the Board enunciated the principle that
in solicitation rules, the term “working time” is presumptively

8 This card is also dated 1–14–02; credible testimony puts the sign-
ing date on January 13. Stine ended his employment on February 7.
The parties agree that his card should not be counted.
9 In its brief, Respondent states that between February 25 and March
20 the Union had no “further contact with any Desert Toyota employee
for almost a full month.” Respondent has inadvertently misstated the
facts. Rodehorst’s testimony was that he had no physical meeting with
any of Respondent’s employees between February 25 and March 20.
There is no evidence that either the Union or the employees lost interest
in the union movement.
valid because it indicates with sufficient clarity that employees
may solicit on their own time, while the term “working hours”
is presumptively invalid because it connotes periods from the
beginning to the end of work shifts, which includes the em-
ployees’ own time, such as lunch and breaks. The mere exis-
tence of an overly broad rule tends to restrain and interfere with
employees’ rights under the Act, even if unenforced. Bruns-
wick Corp., 282 NLRB 794, 795 (1987). Applying these pre-
cepts, it is clear that Respondent’s no-solicitation rule is fa-
cially overbroad and presumptively unlawful. Accordingly, I
find that Respondent’s promulgation and maintenance of an
overly broad and discriminatory no-solicitation rule violated
Section 8(a)(1) of the Act.
2. Interrogation, solicitation of grievances, impression
of surveillance, and coercive statements
The complaint alleges that Pat Burke (Burke), Respondent’s
service director, during the period January through April, inter-
rogated employees about their and other employees’ union
activities and created an impression that the employees’ union
activities were under surveillance.
In January, Burke told service advisors10 during a weekly
meeting attended by Vincent Casucci (Casucci), service direc-
tor, that the Union was coming into town to try to organize.
Burke asked the service advisors to let him know if they heard
anything among the technicians. At a later meeting, Burke
asked if the advisors had heard anything about what was going
on. At one of the meetings, either Burke or Casucci said that
Galindo was promoting the Union and taking people to a union
meeting. After Burke ended his employment with Respondent
on January 29, Casucci held daily service advisor meetings. At
one of them, he asked the service advisors if they had heard
anything about the Union. When all answered negatively,
Casucci said, “Yeah, I think it’s pretty much dead.”
Burke’s solicitation of employees to report on the union ac-
tivity of others is a violation of the Act. His and Casucci’s
interrogation of employees about the union activities of others
also violates the Act. Further, the two supervisors’ statements
to the service advisors created the impression of unlawful sur-
veillance, another violation of the Act. Ishikawa Gasket Amer-
ica, Inc., 337 NLRB 175 (2001). Accordingly, I find that by
interrogating employees, by soliciting employees to engage in
surveillance of other employees’ union activity, and by creating
the impression that employees’ union activity was under sur-
veillance, Respondent violated Section 8(a)(3) of the Act.11
The complaint alleges that Robert Carmendy (Carmendy),
general manager, on March 6, interrogated employees and so-

10 Service advisers (writers) are employed in Respondent’s automo-
tive service department. Among other duties, they create and distribute
work orders to service technicians.
11 The complaint does not specifically plead as a violation Respon-
dent’s conduct in soliciting employees to engage in surveillance of
employees’ union activities. As this issue has been fully and fairly
litigated and is closely connected to the impression of surveillance
allegation of the complaint, I may appropriately find a violation. See
Gallup, Inc., 334 NLRB 366 (2001); Letter Carriers Local 3825
(Postal Service), 333 NLRB 343 (2001); Parts Depot, Inc., 332 NLRB
733 (2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD126
licited employee complaints and grievances, thereby promising
increased benefits and improved terms and conditions of em-
ployment if employees refrained from supporting the Union.
Following notification in January that he had passed two cer-
tification tests, Galindo asked Casucci if he would receive a pay
review. Casucci said he would discuss it with Galindo later.
By mid-March, Galindo had heard nothing from Casucci about
a pay raise. Galindo went to Bob Carmendy (Carmendy), gen-
eral manager, and told him of the test results and of Casucci’s
failure to respond. Carmendy said he would talk to Casucci
about the raise and asked what Galindo thought could be done
to improve the shop. Galindo complained that services were
being cut, and Carmendy said that was information Respondent
could do something about. Carmendy asked what Galindo
thought about the Union. Galindo said he had attended the first
union meeting.
Carmendy’s inquiry as to what Galindo thought of the Union
can only have been an attempt to find out if Galindo supported
the Union in violation of Section 8(a)(3) of the Act. President
Riverboat Casinos of Missouri, Inc., 329 NLRB 77 (1999).
Carmendy’s discussion of how the shop could be improved
constituted solicitation of grievances with an implied promise
of remedying those grievances. The clear motivation of the
solicitation and promise of remedy, coupled as they were with a
question about Galindo’s union interest, was to discourage
support of a union. Such conduct violates the Act. Insight
Communications Co., 330 NLRB 431, 457 (2000); Palm Gar-
den of North Miami, 327 NLRB 1175 (1999). It does not mat-
ter that employee complaints were not remedied. “[The] solici-
tation of grievances in the midst of a union campaign inherently
constitutes an implied promise to remedy the grievances.”
Clark Distribution Systems, 336 NLRB 747, 748 (2001);12
Hospital Shared Services, 330 NLRB 317 (1990). Grievance
solicitation during an organizational campaign creates a “com-
pelling inference,” that the employer seeks to influence em-
ployees to vote against union representation. Traction Whole-
sale Center Co., 328 NLRB 1058 (1999).13 Accordingly, I find
that Carmendy’s interrogation, solicitation of complaints and
grievances, and implied promise of benefits violated Section
8(a)(1) of the Act.
The complaint, as amended, alleges that Tony Zita (Zita),
Respondent’s reconditioning manager, in about March, interro-
gated employees in violation of Section 8(a)(1) of the Act.
Respondent has denied that Zita was a supervisor during that
period.
Section 2(11) of the Act defines a “supervisor” as any indi-
vidual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend
such action, if the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment. “The possession of even one of those attributes is
enough to convey supervisory status, provided the authority is

12 Quoting Capitol EMI Music, 311 NLRB 997, 1007 (1993), enfd.
mem. 23 F.3d 399 (4th Cir. 1994).
13 Reiterated in MacDonald Machinery Co., 335 NLRB 319 (2001).
exercised with independent judgment, not in a merely routine
or clerical manner.” Arlington Electric, Inc., 332 NLRB 845
(2000), quoting Union Square Theatre Management, 326
NLRB 70, 71 (1998). Zita did not testify. Credible testimony
establishes that at relevant times, Zita directly supervised the
porters and the used car technicians. Zita had the authority to
and did hire porters. Moreover, Zita exercised independent
judgment in assigning and directing work, interrupting one
repair job to assign another. Zita’s work assignments and di-
rection exceeded the merely routine or clerical. I find that Zita
was a supervisor within the meaning of Section 2(11) of the Act
during relevant periods.
In February or March before Galindo was terminated, Zita
asked used car technician, Thomas Pranske (Pranske), if either
he or Galindo were involved in the Union. Pranske testified
that on March 21, the day before Respondent terminated
Galindo, Zita called Pranske into his office. Casucci was pre-
sent. The two supervisors asked Pranske if he was involved in
organizing the Union, which he denied. Zita had earlier
vouched for Pranske’s noninvolvement, but Casucci said he
wanted to hear it from Pranske. The supervisors then asked
Pranske if Galindo was involved in organizing the Union, and
Pranske said he was. Casucci said, “Okay. That’s what we
needed to know.” Later that same day, Zita told Pranske that
Carmendy said Respondent would have to fire Galindo. On the
day following Galindo’s termination, Zita told Pranske that the
problem with the Union was taken care of.
Casucci denied ever having the conversation with Pranske
described above. Casucci said that Pranske came to him in
February and volunteered that he was attending union meetings
to hear what the Union had to say. According to Casucci, he
told Pranske it was not a problem.
Respondent argues that Pranske’s testimony is not credible.
I note Pranske is still employed by Respondent, and his testi-
mony has the potential to damage what he described as a “good
relationship” with his supervisor. Pranske’s testimony adverse
to Respondent was given against self-interest, a factor I find
significant in favorably determining Pranske’s credibility.
Although Pranske was nervous while testifying, I found him to
be sincere and reliable. Moreover, Respondent failed to call
Zita as a witness. The failure to examine Zita, who is still em-
ployed as Respondent’s supervisor and is presumably a favor-
able witness, about statements he is accused of making gives
rise to the “strongest possible adverse inference against Re-
spondent” regarding the statements. Flexsteel Industries, 316
NLRB 745, 758 (1995). Although Casucci specifically denied
questioning Pranske, he did not deny questioning service advi-
sors. It is uncontroverted that Casucci actively interrogated the
service advisors about other employees’ union activities to
which he was hostile. Casucci was not averse to questioning
employees about the union activities of others, and it is reason-
able to believe Pranske’s account of additional questioning.
Considering the testimony overall, I credit Pranske.
Both Zita and Casucci interrogated Pranske about his and
Galindo’s union activities. In determining the unlawfulness of
employee interrogation, the Board looks at whether under all
the circumstances, the interrogation reasonably tends to re-
strain, coerce, or interfere with employees in the exercise of
DESERT TOYOTA 127
their Section 7 rights. Performance Friction Corp., 335 NLRB
1117 (2001); Emory Worldwide, 309 NLRB 185, 186–187
(1992). “The factors to be considered in assessing whether an
interrogation is unlawful include: background, nature of infor-
mation sought, identity of the questioner, place and method of
interrogation, whether a valid purpose for the interrogation was
communicated to the employee, and whether the employee was
given assurances of no reprisals.” Performance Friction Corp,
supra, citing Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964).
Employer hostility is a significant background consideration.
See Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). All
factors of the instant interrogations emphasize their coercive
nature. Pranske was directly interrogated in implicitly hostile
circumstances, the only possible basis for which was Respon-
dent’s unspoken desire to identify and penalize union organiz-
ers. Accordingly, I find Zita and Casucci’s interrogations of
Pranske to be violations of Section 8(a)(1) of the Act.
Further, although not alleged, I find Zita’s statements to
Pranske that Respondent would have to fire Galindo and, fol-
lowing Galindo’s discharge, that Respondent had taken care of
the union problem to be coercive. Zita’s statements linking
Galindo’s discharge to his protected support of the Union were
coercive and independently violated Section 8(a)(1). See Jo-
seph Stallone Electrical Contractors, 337 NLRB 1139 (2002);
Benesight, Inc., 337 NLRB 282 (2001), citing Sands Hotel &
Casino, 306 NLRB 172, 184 (1992), enfd. mem. 993 F.2d 913
(D.C. Cir. 1993).14
C. The 8(a)(3) Allegation
The complaint alleges that Respondent discharged Galindo
because he engaged in union activities and to discourage other
employees from engaging in such activities.
Except for a 6-month period in 2000 when Galindo worked
for Desert BMW, Galindo worked continuously for Respondent
as a Toyota technician from February 1997 until his discharge
on March 22. In January, Casucci told Galindo that he was
considering making Galindo a team leader. In January or Feb-
ruary, Casucci told another employee in Galindo’s presence
that his “top guy was Jorge.” On another occasion, Casucci
praised Galindo’s “up-sales.”15
As set forth above, Galindo was the Union’s contact em-
ployee at Respondent. In connection with his earlier-described
union organizational efforts, Galindo, on March 21, passed out
about 22 union invitation cards to other employees at work.
When Galindo arrived at work the next day, March 22, Casucci
asked Galindo to join him in his office where parts manager,
Scott Waddell, was also present. Casucci said to Galindo, “I’ve
got some bad news to tell you. I’m going to have to let you go
because we’re trying to reduce costs by April 1st, and . . .
you’ve gotten to a point where you [have a] bad attitude and
[your] work performance is bad and productivity.”

14 I may find and recommend a remedy for these violations even in
the absence of allegations or amendments of the complaint as these
issues have been fully litigated and are closely connected to the subject
matter of the complaint. See Gallup, Inc., supra; Letter Carriers Local
3825, supra; Parts Depot, supra.
15 “Up-sales” are sales of additional automotive services.
Casucci mentioned an MR-2 model car that Galindo had
worked on in November or December 2001, which had thereaf-
ter broken down in California. Casucci also criticized work
Galindo had performed on a Supra model car in January.
Casucci said the matter was not personal, that “it came from up
front.” Casucci suggested Galindo apply at a Toyota dealership
due to open in August. According to Galindo, prior to his dis-
charge date, Casucci had never mentioned any problem with
Galindo’s work on either the MR-2 or the Supra, and he had
never complained to Galindo about his attitude.
Casucci testified that beginning in early 2002, Galindo asked
him for a raise on three occasions. Each time, according to
Casucci, he told Galindo that because he was not very commu-
nicative and because of his work performance, Casucci did not
think he was ready for a raise.16 At the beginning of March,
Carmendy told Casucci that Galindo had approached him about
a raise. Casucci was “furious” because Galindo had gone over
his head. Because of that, because of performance issues, and
because Galindo continued to have a “very down, dark attitude”
and would not “respond” to him, in the latter part of March,
Casucci decided to terminate Galindo. Concerning Galindo’s
performance, Casucci testified that Galindo’s low labor hours
and a customer service index maintained by Toyota Company
based on customer surveys (CSI), which ranked Galindo as
third from the bottom for the year 2001, were performance
concerns. According to Casucci, he terminated Galindo “basi-
cally on his attitude, his CSI, and his labor hours. Casucci said
that at the termination interview, he listed these reasons but did
not “[get] incredibly specific.” During cross-examination,
Casucci abridged his testimony somewhat and said that he ter-
minated Galindo because “we couldn’t communicate and
couldn’t get along.” Casucci did not mention reduction in force
as a basis for the discharge.
On Galindo’s termination form, Casucci marked the “reason
for termination” portion with both “Reduction In Force” and
“Other,” to which he added “overall job performance—decline
in job performance, attitude.” Under the “employee evalua-
tion” portion, Casucci marked Galindo as “fair” in attendance
and initiative, “satisfactory” in cooperation and quality of work,
and “good” in job knowledge. No “unsatisfactory” rating was
marked. As to “recommendation,” Casucci marked “with some
reservation.” As to “rehire?” Casucci marked “yes.”
I do not find Casucci’s testimony of Respondent’s basis for
terminating Galindo to be convincing. Much of his testimony
was inherently incongruent. Casucci testified that although he
was unhappy with Galindo and his attitude as early as Novem-
ber 2001; he testified he was “furious” with Galindo for going
over his head in beginning of March. However, Casucci did
not consider firing Galindo until the later part of March, and he
did not look at his CSI score until then. Casucci testified that
Galindo’s CSI score was “incredibly important” and a factor in

16 In an affidavit given to Region 28 during its investigation of the
charges relevant to Galindo’s request for a raise, Casucci stated, “When
Jorge came to me to ask for a pay increase, I told him that I thought his
seventeen dollar per hour rate was appropriate for his skill level and
overall effort.” The affidavit does not mention Casucci’s dissatisfaction
with Galindo’s communication efforts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD128
his discharge, but, under cross-examination, Casucci admitted
that he never discussed Galindo’s CSI score with him.17 Fur-
ther, Casucci admittedly never warned or disciplined Galindo in
any way for his “bad attitude.”18 Although Casucci stressed
Galindo’s attitude as a basis for termination, the termination
form reports Galindo’s cooperation as good, which is inconsis-
tent with a bad attitude and a failure to communicate. Casucci
testified that in February he received information that a Toyota
Galindo had worked on in November had broken down in Cali-
fornia, assertedly as a result of Galindo’s poorly performed
repairs. However, Casucci never brought the matter to
Galindo’s attention until he fired him. Finally, the termination
form cited “Reduction in Force” as a basis for discharge, which
basis Respondent apparently later abandoned.19 In determining
the lawfulness of Galindo’s discharge, I have considered the
above inconsistencies as well as credited testimony that
Casucci, through unlawful interrogation, discovered Galindo
was the employee most responsible for the union organizing
effort and that Respondent’s supervisor, Zita, stated Galindo
would be fired for his union support. I find that Casucci’s as-
serted reasons for the discharge of Galindo are pretextual. The
real basis for Galindo’s discharge was his prominent role in the
union organizing effort.
As Respondent’s stated reasons for Galindo’s discharge are
pretextual, it is not necessary to “go through the burden-shifting
inquiry as to whether [Galindo] would have been discharged
had he not engaged in union activity, as required by Wright
Line.”20 Sodexho Marriott Services, 335 NLRB 538 (2001)
[citations omitted]. However, if I were to apply a Wright Line
analysis, I would find the General Counsel met his burden of
showing that Galindo’s protected conduct was a motivating
factor in Respondent’s decision to discharge him. I would also
find that Respondent did not meet its shifted burden to demon-
strate that the same action would have taken place even in the
absence of the protected conduct. Accordingly, I find that Re-
spondent violated Section 8(a)(3) of the Act by discharging
Galindo.
D. Bargaining Order as Remedy
1. Appropriate unit
The parties dispute the composition of an appropriate unit
herein. Although the complaint described the appropriate unit
as including lube technicians, at the hearing and in brief, the

17 Two employees, Stine and Kenneth Fruend, Toyota technician, re-
ceived lower CSI ratings than Galindo, but there is no evidence Casucci
ever discussed the ratings with either employee.
18 Casucci testified that he spoke to Galindo about his attitude, tell-
ing him it needed to change, but as to specific conversations with
Galindo regarding attitude, Casucci testified only that he said, “Jorge,
how you doing? What’s going on, Jorge? Anything I can do to help
you? What’s wrong? What’s the problem?” I specifically discount
Casucci’s testimony that he said anything to Galindo about his attitude
being a problem.
19 Respondent did not raise any reduction-in-work-force defense in
its brief, and Casucci did not testify that lack of work formed any
ground for Galindo’s discharge.
20 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
General Counsel contended that a craft unit of automotive ser-
vice technician employees performing skilled mechanical
work—Toyota technicians and used car technicians—is the
appropriate unit. Respondent asserts that the appropriate unit
must include, in addition to Toyota and used car technicians,
detailers, accessory installers, window tinters, lube technicians,
and porters.
Respondent’s service technicians work under the overall su-
pervision of a service manager. The classification includes
Toyota technicians, used car technicians, and accessory in-
stallers, all of whom perform mechanical work on vehicles
although their skills, duties, sophistication, number and cost of
tools, and pay differ. Toyota technicians work on Toyota vehi-
cles; used car technicians work on all vehicle makes, and acces-
sory installers install optional items to vehicles such as spoilers,
audio systems, alarms, pickup bed liners, and running boards.
They also tint vehicle windows, which occasionally requires
vehicle door and interior trim removal.21 Respondent pays all
service technicians on a flat rate system based on a codified
estimate of the time required to complete specific tasks. Quick
lube technicians perform minor maintenance and vehicle in-
spection along with changing oil and other fluids and rotating
tires. The service technicians and quick lube technicians own
the tools they use except for some specialized instruments that
Respondent furnishes, and wear uniforms distinctive from other
employees.22
Predelivery inspection technicians (PDI) test systems of
newly delivered Toyotas. Detailers clean vehicles, including
polishing, waxing, and steam cleaning engines. Service porters
are responsible for parking and retrieving customer vehicles,
and perform some janitorial duties. They may perform minor
vehicle trim work and assemble office furniture as needed.
The Board “consistently has found that mechanics possess-
ing skills and training unique among other employees constitute
a group of craft employees within an automotive or motor ser-
vice department and therefore may, if requested, be represented
in a separate unit, excluding other service department employ-
ees.” Dodge City of Wauwatosa, Inc., 282 NLRB 459 fn. 6
(1986) [citations omitted.] In Fletcher Jones Chevrolet,23 the
Board found that “service technicians constitut[ed] a separate
appropriate craft unit” within an automotive department be-
cause they performed mechanical work and “[t]heir skills
[were] dissimilar from the skills employed by the other service
department employees, such as the service porters . . . [and]
‘get-ready technicians . . . [who] road test as well as visually
inspect the automobile and its accessories [upon sale].”
In light of the Board’s craft unit determinations in the auto-
motive repair and sales industry, I find that an appropriate unit
herein is a craft unit of employees who perform mechanical
work at Respondent’s facility. I find that PDI employees, de-

21 Although some testimony referred to “window tinters” as a sepa-
rate classification, it appears that accessory installers also perform
window tinting.
22 Although the accessory technicians are issued the same uniforms
as other service technicians, they choose to wear their own clothing.
23 300 NLRB 875, 876 (1990), distinguished. by Interstate Ware-
housing of Ohio, 333 NLRB 875 (2001).
DESERT TOYOTA 129
tailers, and porters do not perform mechanical work and should
not be included in a craft unit.
The appropriate unit herein is:
All full-time and regular part-time service technicians, includ-
ing Toyota technicians, used car technicians, accessory in-
stallers, and lube technicians employed by Respondent at its
Las Vegas, Nevada facility, excluding all other employees,
office clerical and professional employees, guards and super-
visors as defined in the Act.24
It remains to determine if a majority of unit employees des-
ignated and selected the Union as their collective-bargaining
representative during the union campaign among Respondent’s
service technician employees. All authorization card signers
were employed in unit classifications. The last authorization
card was signed February 25, and no signer revoked his au-
thorization card. Employee payroll records show, in the fol-
lowing periods, the number of unit employees. The number of
authorization card signers employed during those same periods
is also set forth:
Latter half of February 30 unit employees 16 card signers
First half of March 30 unit employees 16 card signers
Latter half of March 31 unit employees 16 card signers
At all relevant times—particularly on March 22, the date of
Galindo’s discharge—the Union represented a majority of the
unit employees for collective-bargaining purposes.
2. The propriety of a bargaining order
In Gissel Packing Co., 395 U.S. 575 (1969), The Supreme
Court identified two categories of cases in which a bargaining
order is appropriate: Category I cases are exceptional situations
involving outrageous and pervasive unfair labor practices that
traditional remedies cannot resolve and which make a fair elec-
tion impossible. Category II cases involve unfair labor practices
that are less extraordinary but that nonetheless have a tendency
to undermine majority support and impede the election process.
As such unfair labor practices render the possibility of a fair
election slight, “employee sentiment once expressed through
cards would . . . be better protected by a bargaining order.”
The instant matter meets the standards for a Gissel category
II bargaining order. In its hunt for the most prominent em-
ployee or employees supporting the Union, upper-level man-
agement of Respondent engaged in widespread interrogation at
weekly service advisor meetings, solicited service advisors to
observe and report employees’ union activities, and made spe-
cific individual inquiry of other employees. Once Respondent
identified Galindo as the chief union proponent, Respondent
fired him in a manner so devoid of valid basis that its action
must have been calculated to send a warning message to all
employees of the consequences of union adherence. In fact,
Respondent was so little concerned about concealing its unlaw-
ful motive for discharging Galindo that lower-level supervisor,

24 While the parties’ positions on what constitutes an appropriate unit
herein have not been static, that does not affect the issue of whether a
majority of employees in an appropriate unit designated and selected
the Union as their collective-bargaining representative. Aldworth Co.,
Inc., 338 NLRB 137, 154 (2002).
Zita, was well aware of it and declared it to Pranske. The dis-
charge of leading union adherents has an especially pernicious
effect on other employees. National Propane Partners L.P.,
337 NLRB 1006 (2002). Awareness of the motivation behind
Galindo’s termination was general, and its impact was immedi-
ate. Three employees who served as union organization team
leaders declined to attend the March 24 union meeting, saying
they did not want to lose their jobs. Respondent’s overt unlaw-
ful conduct so intimidated formerly active union supporters that
they continued to refuse to meet as a group with union repre-
sentatives. In these circumstances, the possibility of erasing the
effects of Respondent’s violations is slight, and the holding of a
fair election is improbable. See Joseph Stallone, supra.
Respondent argues that no obligation to bargain can be as-
serted where, as here, the Union did not demand recognition or
bargaining. As counsel for the General Counsel points out, the
Board noted in Ludwig Fish & Produce, Inc.,25 220 NLRB at
1086–1087: “There is nothing in Gissel which conditions the
bargaining order remedy upon a demand for bargaining.” I find
that Respondent’s unfair labor practices have rendered “a fair
and reliable election” impossible. Accordingly, having deter-
mined that the Union enjoyed majority status in the appropriate
unit, I find that a bargaining order is an appropriate remedy in
this case.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act by:
(a) Promulgating and maintaining an overly broad and dis-
criminatory no-solicitation rule requiring employees to obtain
preauthorization before engaging in any solicitation or distribu-
tion and prohibiting employees from engaging in any solicita-
tion or distribution during working hours.
(b) Interrogating employees about their union activities or
about the union activities of other employees.
(c) Soliciting employees to engage in surveillance of other
employees’ union activities.
(d) Creating an impression that Respondent was engaging in
surveillance of employee union activities.
(e) Impliedly promising benefits to employees to induce
them to refrain from engaging in union activities.
(f) Coercively telling an employee that another employee
would be discharged because of his union activities.
(g) Coercively telling an employee that another employee
had been discharged because of his union activities.
2. Respondent violated Section 8(a)(3) and (1) of the Act on
March 22 by discriminatorily discharging and refusing to rein-
state Jorge Galindo.
3. The following unit of Respondent’s employees is appro-
priate for collective-bargaining purposes within the meaning of
Section 9(b) of the Act: all full-time and regular part-time ser-
vice technicians, including Toyota technicians, used car techni-
cians, accessory installers, and lube technicians employed by
Respondent at its Las Vegas, Nevada facility; excluding all

25 Initial Decision and Order at 220 NLRB 1086 (1975); Supplemen-
tal Decision and Order at 221 NLRB 1306 (1975); remanded on other
grounds 544 F.2d 519 (7th Cir. 1976); Second Supplemental Decision
and Order at 233 NLRB 571 (1977).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD130
other employees, office clerical and professional employees,
guards and supervisors as defined in the Act.
4. The Union has been at all times since March 22, and is,
the exclusive bargaining representative of the employees in the
unit for the purposes of collective bargaining within the mean-
ing of Section 9(a) of the Act.
5. The unfair labor practices set forth above affect commerce
within the meaning of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent having discriminatorily discharged Jorge
Galindo, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987). The recommended Order will also provide that Re-
spondent bargain in good faith with the Union as the exclusive
collective-bargaining representative of the above-described
unit.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended26
ORDER
The Respondent, T-West Sales & Service, Inc. d/b/a Desert
Toyota, Las Vegas, Nevada, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging any employee for supporting International
Association of Machinists and Aerospace Workers, Local
Lodge 744, AFL–CIO, and to discourage employees from en-
gaging in these activities.
(b) Promulgating and maintaining any overly broad and dis-
criminatory no-solicitation rule requiring employees to obtain
preauthorization before engaging in any solicitation or distribu-
tion and prohibiting employees from engaging in any solicita-
tion or distribution during working hours.
(c) Coercively interrogating any employee about union sup-
port or union activities or about the union activities of other
employees.
(d) Soliciting employees to engage in surveillance of other
employees’ union activities.
(e) Creating an impression that Respondent is engaging in
surveillance of employee union activities.
(f) Impliedly promising benefits to employees to induce
them to refrain from engaging in union activities.

26 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(g) Coercively telling any employee that another employee
would be discharged because of his union activities.
(h) Coercively telling any employee that another employee
had been discharged because of his union activities.
(i) 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 effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:
All full-time and regular part-time service technicians, includ-
ing Toyota technicians, used car technicians, accessory in-
stallers, and lube technicians employed by Respondent; ex-
cluding all other employees, office clerical and professional
employees, guards and supervisors as defined in the Act.
(b) Within 14 days from the date of this Order, offer Jorge
Galindo 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 previ-
ously enjoyed.
(c) Make Jorge Galindo whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(d) Remove from its files any reference to Jorge Galindo’s
unlawful discharge and thereafter notify him in writing that this
has been done and that the discharge will not be used against
him in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional 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 re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Las Vegas, Nevada, copies of the attached notice
marked “Appendix.”27 Copies of the notice, on forms provided
by the Regional Director for Region 28 after being signed by
Respondent’s authorized representative, shall be posted by
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by 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, Respon-

27 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DESERT TOYOTA 131
dent has gone out of business or closed the facility involved in
these proceedings, 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
January 1, 2002.
(f) 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
Respondent has taken to comply.