Raycor Co.

RAYCOR CO. 565 Raimund Corssen Co., Inc. d/b/a Raycor Co. and Local 259, United Automobile, Aerospace and Agricultural Implement Workers of America and Russell Labriola. Cases 29-CA-5892 and 29-CA-5892-2 May 16, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On December 31, 1979, Administrative Law Judge Robert G. Romano issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and the General Counsel filed cross-exceptions. I Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and cross-exceptions, and has decided to affirm the rul- ings, 2 findings, 3 and conclusions of the Administra- tive Law Judge and to adopt his recommended Order. 4 ' Local 259, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, a Charging Party in this proceeding, filed a letter stating that "we adopt and affirm all the exceptions submitted to the Board by the General Counsel." 2 Member Penello notes that the Administrative Law Judge deter- mined that backpay for the discharged strikers be computed from Sep- tember 8, 1977-the date of the discharges. Member Penello would adhere to the more than 30 years' Board precedent set forth in his dis- senting opinion in Abilities and Goodwill, Inc., 241 NLRB No. 5 (1979), and find that employees who are unlawfully discharged while on strike must indicate abandonment of the strike and a willingness to return to work in order to initiate the running of the backpay eligibility period. Unlike his colleagues, Member Truesdale would date Respondent's bar- gaining obligation from August 10, 1977, the date of the Union's demand for recognition with a majority showing, which demand Respondent re- fused. See Chandler Motors, Inc., 236 NLRB 1565, 1566, fn. 5 (1978). 3 Respondent and the General Counsel have excepted to certain credi- bility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolu- tions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In adopting the Administrative Law Judge's finding that the discharges of Algerio and Stone were not violative of Sec. 8(a)(3) of the Act, Mem- bers Jenkins and Truesdale rely on his finding that the discharges were solely for cause. Member Penello notes that in the section of the attached Decision ana- lyzing the discharges of Algerio and Stone, the Administrative Lass Judge cited General Tire of Miami Beach. Inc. v. .L.R.B., 332 F.2d 58, 60 (5th Cir. 1964), for the general proposition that a discharge may be an unfair labor practice if an unlawful motive played "any part" in the man- agerial decision. Member Penello further notes that he does not find it necessary to adopt the Administrative Law Judge's reference to the "in part" test in order to affirm the conclusion that Algerio's and Stone's ter- minations were not violative of Sec 8(a)( 3) 4 Although we adopt the Administrati.e Law Judge's recommended broad cease-and-desist Order. we do not rely oil Abhilities and Gdwill, Inc., supra at fn 14 In Hlickmott Foods. Inc., 242 NLRB No 177 (1979), 249 NLRB No. 78 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Raimund Cors- sen Co., Inc. d/b/a Raycor Co., Oyster Bay, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, except that the attached notice is substituted for that of the Administrative Law Judge. the Board modified its prior policy of issuing such orders in all cases in- volving discriminatory discharges and concluded that "each case will be analyzed to determine the nature and extent of the violations committed." In the instant case we find that the severe nature of Respondent's dis- charges (dissipating one-half of the unit), coupled with other violations, warrants broad injunctive relief The Administrative Law Judge failed to include in his notice that por- tion of his recommended Order providing for the reinstatement of em- ployees Labriola and Falabella. We shall modify the Administrative Law Judge's notice to correct this inadvertent error. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees concerning their union interests, sympathies, and activities, and as to the union interests, sympathies, and activities of other employees in a manner constituting interference, restraint, or coercion of rights under Section 7 of the National Labor Relations Act, as amended. WE WILL NOT tell our employees that with a union in the shop some employees risk re- ceiving lower classifications and suffering re- sultant reduced wages. WE WILL NOT promise employees an incen- tive plan or other economic benefits in a manner which interferes with the free exercise of Section 7 rights to join a union. WE WILL NOT threaten our employees who may engage in a strike with job loss if they do not abandon their lawful strike action and return to work; nor will we discharge or sub- sequently refuse to reinstate any striking em- ployees because they refuse to abandon their lawful strike action and return to work. WE WILL NOT refuse to recognize and bar- gain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local 259, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, as the exclusive bargain- RAYCOR Co. 565 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing representative of its employees in the fol- lowing appropriate bargaining unit: All service shop employees including all parts department employees, mechanics, helpers and cleaners employed by the Em- ployer at its location at 243 Pine Hollow Road, Oyster Bay, New York; excluding all office clerical employees, salesmen, guards and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act. WE WILL, upon request, recognize and bar- gain collectively in good faith with Local 259, United Automobile, Aerospace and Agricul- tural Implement Workers of America, as the exclusive bargaining representative of our em- ployees in the above-described unit with re- spect to rates of pay, wages, hours of work, and other terms and conditions of employ- ment; and WE WILL, upon request, embody in a signed agreement any understanding that may be reached. WE WILL offer Russell Labriola and Paul Falabella immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed. WE WILL make Russell Labriola and Paul Falabella whole for any loss of earnings they may have suffered by reason of our unlawful discharge and refusal to reinstate them, with interest. RAIMUND CORSSEN Co., INC. D/B/A RAYCOR Co. DECISION STATEMENT OF THE CASE ROBERT G. ROMANO, Administrative Law Judge: These consolidated cases were heard in Brooklyn, New York, on April 10-13, 19, and 20, 1978. The charges in Cases 29-CA-5892 and 29-CA-5892-2 were filed on September 6 and October 7, 1977, respectively. The consolidated complaint issued on October 31, and, as amended at hearing, alleges extensive violation of Sec- tion 8(a)(), (3), and (5) of the National Labor Relations Act, as amended; and alleges further that certain employ- ees of Respondent engaged in an unfair labor practice strike from September 6 until September 28. Respondent, by answer filed November 16, has denied the commission of any unfair labor practices. I All dales are in 1977 unless indicated to the contrary. Upon the entire record, including my observation of the demeanor of the witnesses,2 and after due considera- tion of General Counsel's (oral) arguments and Respond- ent's complete brief2 as offered on June 13, 1978, I make the following: FINDINGS OF FACT 1. JURISDICTION The Company (herein Raycor or Respondent), a New York corporation, maintains its principal office and place of business at Pine Hollow Road in the town of Oyster Bay, County of Nassau, New York, where it is engaged in the sale, repair, and distribution of automobiles, auto- mobile parts, and related products. During the past year, Respondent derived gross revenues therefrom in excess of $500,000; and, during the same period, Respondent re- ceived related goods valued in excess of $50,000 at its Pine Hollow Road plant directly from points located outside the State of New York. The complaint alleges, the answer admits, and I find that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. Respondent, at the hearing, has also admitted that the Union is a labor orga- nization within the meaning of Section 2(5) of the Act. I so find. II. ALLEGED UNFAIR LABOR PRACTICES A. Background 1. Respondent's operations and personnel The Respondent is essentially a small automobile deal- ership which sells BMW cars and which also generally services and repairs BMW, Rolls-Royce, Mercedes-Benz, and certain other English-make cars. Raimund Corssen, Sr., is Raycor's president and principal stockholder (65 2 Considerable conflict affecting issues of disputed material fact is re- vealed in this record in the testimony of a number of witnesses presented by both General Counsel and Respondent; and that conflict included sev- eral significant and perplexing instances of testimonial variances and/or individual confusion on the part of certain of those witnesses. Where major conflicts are deemed to exist, the essence of the given witnesses' versions are specifically identified and/or summarized and an appropriate resolution then made of significant disputed facts on the basis of consider- ation of the entire record, but with such reasons immediately set forth as are deemed sufficient for the matter under consideration. In this regard, and in general, I have carefully considered the demeanor of the wit- nesses; and I have also been attentive to the possible effects of bias in a particular witness' recollection in evaluating that witness' testimony. Where deemed warranted, I have also given greater weight to documen- tary corroboration and to reasonable plausibilities flowing therefrom, or from other facts, uncontestedly or otherwise persuasively evidenced of record. Where I have found a witness' demeanor a significant factor, if not dispositive, on an issue in a given area, or, where I have discerned upon careful review of the record made that there is clear warrant to conclude that one individual's testimony on a particular matter is shown generally less reliable than another because of such factors of plausibility, inconsistency, and/or confusion thereon, I have so indicated. Finally, it seemed especially appropriate in this matter to keep in mind the oft- quoted observation of Judge Learned Hand in such matters in N.L.R.B. v. Universal Camera Corporation, 179 F.2d 749, 754 (2d Cir 1950), "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judi- cial decisions than to believe some and not all." 3 Through an apparent inadvertent brief collating error, an initially in- complete brief was earlier filed by Respondent. - RAYCOR CO. 567 percent), and Hans Schmal is Respondent's vice presi- dent and the sole other significant stockholder (35 per- cent). Schmal, with a mechanic's background, has as well served operationally as Raycor's service manager since about 1973. President Corssen essentially was en- gaged in and directed new car sales; and he exercised overview of the showroom, and, in general, the fiscal end of the business. Schmal supervised principally the service area, including the parts room, though both su- pervised aspects of the parts department. Norton Rosen- berg, a professional independent accountant since 1954, has been engaged by Respondent as its accountant since Raycor's inception in 1966. The record reveals that Rosenberg was a regular customer of Respondent, vis- ited its premises every week, had privilege of access to the shop, and regularly received a 10-percent discount, presumably by virtue of being Respondent's regular ac- countant, as well as President Corssen's personal friend. Even more significantly, the record has revealed clearly herein that there were several incidents or occasions when Rosenberg was contacted by either Corssen Sr. or Schmal and unquestionably involved by them directly in Raycor's various business responses to the matter of em- ployees' efforts to organize a union in Respondent's serv- ice shop.4 Indeed, called as a witness by General Coun- sel, President Corssen specifically conceded that Rosen- berg had been authorized to speak to employees on behalf of Respondent in a certain meeting of employees held on Respondent's premises on August II. I am fully convinced on this record, and I find, that Rosenberg was both business confidant and an agent of Respondent au- thorized to act in all such purposes on Respondent's behalf. As of early August, Raycor employed three mechanics (Dolibar Rezek, Stephen Gourlay, and Richie Pettinato), two mechanic helpers (Raymond Phillip Stone and Russel Labriola), 5 and two cleaners (Paul M. Falabella and Steven Pomerantz). Joseph A. Algerio was initially hired and placed in charge of Raycor's parts room in March 1976. Algerio's duties generally covered (controlled) distribution of parts to service employees in the effecting of unit repairs in the shop, including (routinely) effecting any required outside repair, the wholesale of stocked parts to other shops in the area, and the retail sale of parts to custom- ers. In that connection, Algerio ran and maintained some inventory cards in accounts kept on certain parts, and he was responsible as well for inventory control of certain specialized tools regularly made available and used by the mechanics in Respondent's shop. Algerio's major re- sponsibilities also included the ordering of parts (two to three times a month); i.e., to replace depleted stock 4 It would reasonably appear this may have been due to Corssen's and Schmal's (though the latter less so) seeming lack of fluency or ease with spoken English, which I find was on occasion evidenced at the hearing. I Although Stone and Labriola viewed themselves as qualified and ex- perienced mechanics, corroborated testimony of Schmal as well as Re- spondent's employee records reveal that they were hired as mechanic helpers. Additionally, the record otherwise reveals that they did not have the formal training of either mechanic Gourlay or Rezek, and both had been initially hired at a lower rate than Pettinato, the latter begin also initially hired as a mechanic. (Neither Pettinato nor Rezek testified in this proceeding.) which was to be regularly maintained in inventory, or to obtain nonstock items on a specific order to effect special repairs." Algerio also received and maintained on file all delivery tickets (invoices) from parts and service suppli- ers, pending monthly billing and payment, as also dis- cussed further infra. Although commencing about Febru- ary Algerio had begun receiving a monthly 2-percent sales commission on certain sales, he essentially was hourly paid and had regular work hours beginning at 8:30 a.m., 5 days a week, the same as the service employ- ees; and further, as was the case with the latter, Schmal was his immediate day-to-day supervisor. I am thus fully convinced on the basis of the above and the entire record herein that during material times Algerio neither possessed nor had exercised any supervisory authority, and that he was thus not a supervisory employee within the meaning of the Act, nor a managerial employee, but rather at all times material herein was an employee whose function was essentially that of a parts/inventory clerk, or plant clerical, performing essentially routine duties; and I find that he clearly had a community of in- terest with the service employees with whom he came in daily contact. Michael Corssen, a high school student and one of two sons of President Corssen employed by Raycor at this time, was also employed as a part-time summer parts man in the partsroom.7 Serving as Respondent's sales force in this period, in addition to President Corssen, were Carl Holsworth (a full-time salesman) and President Corssen's older son, Raymond Corssen, Jr. Although acknowledging that he had also worked on occasion in the back in the service shop area with Schmal (particularly in serving customers in scheduling the work), Corssen Jr. related that he did so even then with exposure to new sales opportunities in mind. During this summer period, his regular work hours, unlike service unit employees, were from 8:30 a.m. to 7 p.m., Monday through Saturday, with Thursday regularly off. I am fully convinced by this record, apart from any other consideration, that Corssen Jr. was em- ployed essentially as a salesman,8 and that he thus would have been excluded during this period on that account 6 Understandably, most of the parts carried in inventory were BMW parts, though there was apparently some limited stock carried for Rolls- Royce and Mercedes-Benz cars. Although it was Algerio who essentially placed all such parts orders, principally with BMW of Nonh America, both Schmal and Corssen had frequent occasions to review Algerio's or- dering, as discussed more fully infra. I Prior to this summer Michael Corssen had apparently worked part time, though on Saturdays only. During the summer, he had worked parn time from 8:30 a.m. to 5 p.m.; and more recently had worked in the partsroom where, under the tutelage of Algerio, he had learned the pro- cedures in the parts department. I credit Michael Corssen that, during this time, he had worked with customers, answered the phones, and cleaned the parts and showrooms, but that he did mostly paperwork and a lot of inventory work, which had included during this period (August) making additional space for the storage of more parts. Although he worked as late as September 6, the time when certain picketing com- menced, discussed infra, Michael Corssen shortly thereafter returned to high school to continue his education. s As of June, Corssen Jr. had just completed a business administration course in (apparently) a 2-year college, at which, for some undisclosed period, he had previously boarded. However, in the prior year he had worked part time as a salesman, and, during the summer of that prior year, full time as a salesman. I credit his testimony that, upon completion of his second year of college, that is, from (present) June until September (at least the 6th), he had worked 90 percent of his time as a salesman. RAYCOR CO. 567 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the service shop unit found appropriate hereinafter. Rounding off Raycor's employed personnel were Rita Marie Benson (secretary-bookkeeper) and Evelyn Stad- nyck (a part-time office clerical employee). 2. The employees' organizational activity It was either late July or early August when several Raycor employees initially began talking amongst them- selves about a union. However, the record reveals con- vincingly that it was Algerio who thereafter had made the first contact with the Union and then had arranged for the first meeting of employees with the Union. Thus, Algerio recalled that it was the beginning of August when he called the Union and first spoke with a secre- tary and arranged initially to have someone from the Union call him back later on his inquiry. Stephen Rich- ard Elliott, a business agent of Local 259 for some 5-1/2 years, confirms Algerio that his first contact with Raycor employees was a phone conversation he had with Algerio on August 6 or 7, and that Algerio had ar- ranged with him to hold a meeting with employees on August 9 to discuss joining the Union. Algerio thereupon notified certain employees about the meeting. The meet- ing was subsequently held as scheduled, immediately after work at or about 5:15 p.m. on August 9 (a Tues- day) at Dell's Bar, a local pub located less than a mile from Raycor's premises. In attendance at this first meet- ing representing the Union were Elliott and Carlo Oli- veri, another business agent of Local 259.9 The employ- ees in attendance at the first union meeting were Algerio, Falabella, Labriola, Pettinato, Pomerantz, and Stone. (Employees Gourlay and Rezek did not attend the meet- ing.) The foregoing findings of fact are based upon essen- tially mutually consistent and credited testimony of Busi- ness Agent Elliott, and employees Algerio, Falabella, Stone, and Gourlay, and, only to the extent consistent therewith, Labriola. I specifically do not credit Labrio- la's recollection that the first three union meetings were held on three successive Fridays.' ° 9 Carlo Oliveri did not testify in this proceeding. In that regard, in the third volume of the record in this proceeding at 492 (following a change of official reporter), Carl Oliveri is incorrectly reflected as returning to the stand rather than Joseph A. Algerio, the immediately preceding wit- ness. Although no counsel has moved to correct the record in that regard, on my own motion I correct the record in that respect. I have further carefully evaluated the certain subsequent record references (in Vol. 3) to Joe Oliveri and/or (simply) Oliveri in the light of the above and in the light of the facts as revealed from the entire record otherwise that there was no Joe Oliveri (nor any Oliveri) employed by Raycor at this time, but that rather only a Joe Algerio (and Michael Corssen) was employed in Raycor's parts department during this period. 10 Algerio testified that he notified all the shop employees, including Gourlay and Rezek, and recalled that Rezek had told Algerio that he did not want to have anything to do with the Union. Called as a witness by Respondent, Gourlay in this area essentially corroborated that Algerio had initially spoken to him about the Union, that Algerio had invited him to attend the first union meeting, but that Gourlay had decided not to attend it. Gourlay also testified that the employees had daily discussed the Union at lunch, except when Dolibar Rezek or Corssen Jr. were pres- ent. As Rezek did not testify, his lack of interest in the Union (as indicat- ed by Algerio's uncontensted and otherwise corroborated testimony) is wholly compatible with the employees' subsequent failure to include him in their union discussions (as described by Gourlay). It was Falabella's recollection that Algerio had contacted Gourlay about attending the union meeting, but he was not sure about Rezek. Nonetheless, I credit Algerio in the above particulars. However. I also credit the testimony of Elliott (fully corroborated by Falabella and Labriola) testified credibly that he explained the Union to the em- ployees, displayed some sample contracts that the Union had negotiated with other dealership, and discussed the medical and pension plans, union pay scale, and insur- ance. 1 Elliott then passed out union authorization cards. He testified that he told the employees that he needed the authorization cards to make a demand; that, if the employees would sign union authorization cards, he would then go to Respondent and demand recognition; that, if they obtained recognition, then they would draw up proposals; but that, if Respondent denied recognition, he would use the cards to petition the Board for an elec- tion. Elliott testified also that all six employees named above signed union authorization cards at this first meet- ing. Elliott was not corroborated in all these respects in- dividually, but was comprehensively corroborated by the employees. Labriola, the first employee witness called by General Counsel (after Elliott), confirmed that he and all the other employees had individually signed cards for the Union at this meeting; Labriola then identified the card he had personally signed. All the aforesaid cards for employees Labriola, Algerio, Stone, Falabella, Pettinato, and Pomerantz are in evidence. Each of the first four above-named employees personally identified their own cards, and they each also have mutually corroborated Elliott in testifying generally that all the employees at this meeting signed a card. (Indeed, the record reveals specific testimony of employee Stone that he saw Pettin- ato sign his card and return it.) On the basis of such credible and mutally consistent testimony, I have no hesitancy whatsoever in finding that all six named em- ployees individually signed union cards. The individual card declares on its face both an application for member- ship in the Union and an unequivocal designation of the Union as the collective-bargaining representative.' 2 The record otherwise reveals that Labriola on cross- examination testified that he understood the card was a register or attendance card, and on redirect examination then explained that he had not read the card before he signed it. He recalled that he was told the card was to show who would vote for the Union and who was there, but he could not remember if Elliott had told the em- ployees what Elliott was subsequently going to do with the cards. Labriola testified that he had initially told Al- gerio that he would not mind a union in the shop.' 3 He also testified that he wanted the Union to represent him. In the absence of corroboration, I would place but cau- tious reliance on the latter in view of the nature of prior leading questions thereon. After reading the aforesaid au- Michael Corssen and Raymond Corssen Jr., clearly uncontested to the extent that they testified, that they were not previously aware of this union meeting. II In addition to also essentially corroborating Elliott's above benefits explanations, Algerio adds that Elliott spoke in this meeting of just about everything that the Union covered. 12 Each such card provides: I hereby apply for membership in Local 259 U.A.W. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America and authorize and designate said union to repre- sent me for collective bargaining with my employer. 3 Labriola could not remember what Algerio had said to him earlier about attending the union meeting RAYCOR CO. 569 thorization card at the hearing, Labriola still could not remember whether he had read it that evening or not. Algerio subsequently testified that he had read his card and signed it, and otherwise testified that Elliott had said they were cards that he would take to the Labor Board showing there was a majority of people in favor of having a union come in. Algerio specifically denied that Elliott had said the cards were just to show who had at- tended the union meeting. (Algerio did not specifically corroborate Labriola as to the latter's statements made to him in regard to a union in the shop either at the meet- ing or otherwise.) Falabella testified that he had read and signed his card, and he also testified that he did not re- member any mention of an attendance card, though he testified also that Labriola had asked him thereafter what he thought about the Union and Labriola seemed to favor it. However, it was Falabella's testimony otherwise that Elliott told them that the majority of the employees had signed, and that he would notify Raycor and send a telegram. According to Stone, the union representatives told them at the time they passed out the cards that it certified that the employees were giving them permission to be the employees' bargaining agent in contract talks with Raycor. Stone otherwise testified that in a prior dis- cussion by employees in the shop he had heard Labriola say that he would like to have the Union in the shop for the money and the benefits, and recalled specifically that at the meeting Labriola had made an inquiry about pay rates. As earlier noted, neither Pettinato or Pomerantz have testified in this proceeding. On August 10 (Wednesday) Elliott, accompanied by Oliveri, visited Respondent's premises between 9:30 and 10 a.m. and, in the absence of President Corssen (it being his regular day off), spoke to Vice President Schmal. Ac- cording to Elliott, Schmal told Elliott that he was in charge, and Elliott then told Schmal that the over- whelming majority of the employees had designated the Union as their collective-bargaining representative, and he demanded recognition. Elliott relates that Schmal re- plied that he could not grant recognition; he would have to talk to his attorney. Elliott told Schmal that he ex- pected everything in the shop to remain in status quo, and that no action would be taken against the employees. According to Elliott, Schmal replied, "Fine." On the same day Elliott sent a confirming wire demanding rec- ognition, which was stipulated as received by Respond- ent that very same day. 14 14 The wire message was actually received by phone on August 10 by secretary-bookkeeper Benson, who wrote the message down and deliv- ered it to Schmal. Benson also requested a written copy from the wire service, which was received by Benson the next day, August II (Thurs- day), and then delivered to President Corssen The said wire provided THIS Wt I. CONFIRM our demand for recognition as bargaining repre- sentative of the shop employees in your service dept.. made 8/10/77. made after informing you that the undersigned union has been desig- nated by the majority of such employees as there [sic] representative for purposes of collective bargaining. We hereby request a meeting to discuss terms and conditions of employment. If you have any questions in regard to our majority status, we are willing to demon- strate the same to any impartial person agreed to by management and union. Suggest you call us immediatly for a meeting, 212-966 1920 or call our attorney Sipser. Weinstock. Harper. Dorn, 212-67 R- 2100 Schmal essentially confirmed the visit of the union representatives on August 10, recalling that about 8:30-9 a.m. two men came into the garage and up to him, iden- tified themselves as from the Union, and told him that he should recognize the Union. Although Schmal could not recall if they had then raised a claim to represent the em- ployees, he acknowledges that he was aware of such claim being made by them upon receipt of the telegram which contained such a claim. Schmal also confirmed that he told the union representatives that he could not recognize the Union as he had a partner who was not in that day, and with whom he would have to talk first; and that he would try to get in touch with him. Schmal also confirmed generally that the union representatives told him that he was not allowed to do certain things. 3. An overview of the concurrent representation case proceedings; and present case status The petition in Case 29-RC-3937 was subsequently filed by the Union on August 12, and a hearing/confer- ence was in due course scheduled and held on August 25. In addition to the presence of a Board agent from the Regional Office, present for the Union were Elliott and the Union's attorney, and present for Respondent were Schmal and Rosenberg. An agreement for a consent elec- tion was thereupon executed by Respondent and the Union, and it was approved by the Board's Regional Di- rector for Region 29 on August 25. The consent election agreement provided for an election to be conducted on September 16 to determine whether the Union represent- ed certain employees of Respondent in an appropriate unit. The parties therein agreed that an appropriate unit for the purpose of collective bargaining was: Included: All service shop employees, including all parts department employees, mechanics, helpers, and cleaners, employed by Respondent at its loca- tion at 243 Pine Hollow Road, Oyster Bay, New York. Excluded: All office clerical employees, salesmen, and guards and supervisors as defined in the Act. I further find that the above-described unit constitutes an appropriate unit for collective bargaining as may be deemed material herein. Elliott has testified in the instant proceeding that Al- gerio was the Union's committeeman at Raycor. Follow- ing the discharge of Algerio on August 30 and Stone on August 31, the Union filed the instant 8(a)(1) and (3) charges on September 6, and a strike commenced at Raycor on the same day, which lasted until approximate- ly September 28. The aforesaid charge blocked the elec- tion scheduled for September 16, which was subsequent- ly canceled; Elliott testifying that the Union had con- cluded that it could not proceed to an election with its committeeman, Algerio, remaining (allegedly) wrongful- ly discharged. The Union later requested permission to withdraw its petition on October 5. On October 7, La- briola filed individual 8(a)(1) and (3) charges herein (cov- ering the discharges of Labriola and Falabella on Sep- tember 6 and/or 8). By Regional Director Order dated October 31, withdrawal of the petition, was approved RAYCOR Co. 569 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subject to a reinstatement of the petition, if appropriate, upon petitioning the Union's application after disposition of the simultaneously issued consolidated 8(a)(l), (3), and (5) complaint herein. 4. The complaint allegations The complaint, as amended at the hearing, alleges that Raycor, by certain acts of President Corssen, Vice Presi- dent Schmal, and its agent, Rosenberg, on or about August 10 (and on various other unknown dates), has un- lawfully in violation of Section 8(a)(l): interrogated em- ployees; offered and promised to its employees wage in- creases, other benefits, and improvements in their work- ing conditions; and threatened employees with plant clo- sure. The complaint further alleges that Raycor has dis- criminatorily discharged (and subsequently has failed and refused to reinstate or offer to reinstate) Joseph Algerio on August 29, Raymond Stone on August 30, Russell Labriola on September 6, and Paul Falabella on Septem- ber 8 in violation of Section 8(a)(3) and (1) of the Act. Alternatively, General Counsel contends that Labriola was also discriminatorily discharged on September 8. On additional complaint allegations that the Union had earli- er on August 9 been designated by a majority of the em- ployees in the above appropriate unit as their collective- bargaining representative and had made a demand for recognition and bargaining on August 10 which Raycor subsequently refused, the complaint finally alleges that thereby and by all the above aforesaid conduct Raycor has violated Section 8(a)(5) of the Act. 15 B. The alleged 8(a)(1) interference, restraint, and coercion Schmal testified credibly that, following his conversa- tion with Elliott (on Wednesday, August 10), he called Rosenberg and related to him the details of the visit of the two union men; and Schmal has Rosenberg initially suggesting that Schmal do nothing right then, but wait and see what happened. Rosenberg's recollection con- firmed essentially' 6 Schmal's report to him that the two 15 Concerning the 8(a)(5) complaint allegations, General Counsel has contended that, in view of the (alleged) extensive 8(aX1) and (3) viola- tions of the Act by Respondent herein, a remedial bargaining order would be warranted in any event commencing as of August 10, the date the demand was made and the alleged date that the initial unfair labor practices commenced, or as of August II1, the alternative date General Counsel contends that the alleged unfair labor practices are shown to have commenced, General Counsel relying (in oral argument) for such contentions on N.L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575 (1969), and Trading Port, Inc., 219 NLRB 298 (1975). 16 The record reveals and I find that with certain exceptions Rosen- berg was generally less convincing in testifying as to the date of certain conversations than when testifying in respect to the substance of the con- versations and/or incidents. Thus, for example, I am not persuaded by Rosenberg's testimony on cross-examination that the initial call from Schmal had occurred on August II1, but rather credit his recollection oth- erwise of the circumstance of that first call as having occurred on Presi- dent Corssen's day off, thus Wednesday, August 10. (Rosenberg recalled that Schmal had not wanted to contact Corssen on that account.) I simi- larly am not persuaded by and do not credit Rosenberg's further recollec- tion that a certain subsequent meeting of Raycor officials with employees occurred on the following Monday, August 15, rather than on the fol- lowing day, Thursday, August 11. As to the latter event, on the basis of the weight of the record evidence as a whole, I am persuaded that Rosenberg was simply mistaken in recollection as to the interval of actual men from the Union had come to see him, that the union men had told Schmal that they were going to represent Raycor employees or unionize the shop, and that Schmal told Rosenberg that he did not know what to do about it. According to Rosenberg, their first endeavor was to find out if it was a bona fide union or something other- wise. I credit Schmal's additional testimony that, later that afternoon when Schmal received the Union's mes- sage (which, as noted, was copied down over the phone by Benson), he again called Rosenberg, who continued to suggest that they wait until they received the actual wire so they would be sure of what was in the telegram because they did not know simply from business cards (previously left by the union men) whether it was a real union or not. (Schmal otherwise acknowledged convinc- ingly that it was he who had later penciled in "bonifide [sic] union" on the printed wire when it was received the next day.) I thus credit the mutually consistent testimony of President Corssen that the first he had heard about the Union was when he returned to work on Thursday morning, August 11, following his day off, at which time Schmal informed him that two fellows had come in and said they were union representatives and had left their business cards; that Schmal had reported to him that the men said they wanted to unionize the shop; and that Schmal told Corssen that he did not know if it was real or not, but that Schmal had not reported to him specifi- cally that a claim was made by the union men to repre- sent the majority of their employees. Nonetheless, Cors- sen Sr. also acknowledged that he was aware from the Union's wire that the Union had made a clear claim of majority designation as bargaining representative of Re- spondent's shop employees in the service department and had made a demand for recognition. Corssen Sr. testified that he was surprised.17 Algerio testified that Corssen Sr. and Rosenberg came up to him one morning at his work station, that on that occasion Rosenberg told Algerio that he had received word that the Union was trying to get into the shop, and that Rosenberg had then asked Algerio if he had any knowledge of it. Algerio replied no. According to Al- gerio, Rosenberg then asked Algerio if he would join such a union and Algerio replied yes, because it would help to pay for some medical bills. Rosenberg then asked Algerio if he was involved, and Algerio replied no. Rosenberg confirmed that there was an occasion when he approached Algerio and asked Algerio: "Joe did you hear anything about a union?"; and also "Do you know if they came to any of the other fellows?" Rosenberg also subsequently testified that he believed he did ask Al- gerio also if he knew who was involved in it, and that Algerio had replied no. However, in contrast with Al- gerio's testimony essentially that he would join the time passage, particularly in the light of party stipulation (with independ- ent credible witness' testimony in support of same) that this subsequent meeting with employees occurred on August 11II. Labriola's recollection as to the timing of this event was even more faulty, his recalling it initial- ly as some 20 days after union meeting, and as occurring in the morning rather than late afternoon as recalled by all other witnesses. A In view of the immediate subsequent actions of the Raycor officials, I do not credit President Corssen's testimony that this development had neither concerned nor bothered him, or that they did not immediately take ii ',.riously. RAYCOR CO. 571 Union because of medical benefits, Rosenberg testified that Algerio volunteered that they would not come to him because he was part of management. In rebuttal, Al- gerio testified initially that he did not tell Rosenberg that he was for management, but that when Rosenberg had asked him what he knew about a union and would he vote for them, Algerio had replied that he did not think he was entitled to vote for them because he thought he was part of management. Algerio acknowledged that his status had been discussed and evaluated at the union meeting of August 9, and that after such discussion he understood he could vote. Algerio then explained that he had not told Rosenberg that, but rather told Rosenberg that he thought he was part of management because he did not want them to fire him or put pressure on him. Thus, Algerio's testimony on the one hand to the effect that he openly told Rosenberg he would join the Union because it would help to pay for medical bills and his re- buttal testimony that, though believing the contrary, he told Rosenberg that he did not think he was entitled to vote for them because he was part of management and so spoke to the management officials in order to avoid discharge or pressure, involves, in my view, significant inconsistencies. Furthermore, Algerio's subsequent ef- forts of record to extricate himself from initial inconsis- tency only led to additional inconsistencies and ended in a response deemed wholly unconvincing because of ob- served demeanor, if not indeed also revealing on the record a readily discerned effort to pass off these incon- sistencies with a seemingly flippant explanation of being an effect merely of being a moody person. These circum- stances are the more significant because Algerio im- pressed me as an astute witness on occasion to anticipa- tory fault. Other points need not be belabored herein. It is sufficient to relate the finding now made that I specifi- cally do not credit Algerio that he informed Rosenberg and Corssen on that occasion that he favored the Union in any way, but rather, as is not infrequently the case when employees are confronted as to their union inter- ests and sympathies in such inquisitorial manner, sought to conceal his own union interest and his awareness of the union interest of other employees from President Corssen and Rosenberg. Under these circumstances, I find Rosenberg's version more plausible, and I credit Rosenberg in his recollection that Algerio had essentially informed him not only that he knew nothing about the Union, but also that the union representatives would not have approached Algerio because he was part of man- agement. Having so concluded, I am further constrained to observe that as to Algerio's presented recollection in these respects, with such readily apparent significance on the ultimate matter of Respondent's awareness of his union interest and sympathies, by virtue of being shown demonstrably unreliable, there appears clear warrant for scrutiny of his other testimony offered in support of his alleged wrongful discharge. In passing, I also note that Rosenberg candidly ac- knowledged that, in addition to the above questioning of Algerio, he had also asked the two office clerical em- ployees (Benson and Stadnyck) and the salesman (Hols- worth) if they had been approached by the Union or knew anything about the Union. Although not recalling the sequence of his inquiries, Rosenberg testified credibly that none had reported they had heard anything about the Union. Stadnyck and Holsworth did not testify. However, Benson, who testified she had received the written copy of the telegram on the morning of Thurs- day, August 11, did testify; and Benson confirmed that Rosenberg came to the Raycor premises on the same day (thus notably consistent with other convincing testimony of Schmal that Rosenberg had not come out on August 10, but the next day). Benson confirmed as well that, as soon as Rosenberg arrived, which was some time before lunch, Rosenberg had asked Benson if the Union had ap- proached her. Benson also testified credibly that this was the only time that Rosenberg had mentioned the Union to her. I am thus wholly convinced and I find that the above initial interrogations of Algerio and Benson oc- curred on August 11 before lunch.'8 However, although Rosenberg also in his testimony included Corssen Jr. as one individually questioned by him in the same manner as the others above, Corssen Jr. has denied such ques- tioning occurred. In this instance I credit Corssen Jr.'s denial, noting that August 11 (being a Thursday) would have been his regular day off, and his nonattendance at the employee meeting held later that afternoon is con- firmed beyond the question. Corssen Sr., Schmal, and Rosenberg discussed the matter further at lunch. They were confused and did not know what was going on, but wanted to find out if any- body knew anything about it, and they decided that they should try to find out what was happening in their shop. Schmal and Corssen then decided they should have a meeting with the employees; and, when Rosenberg sug- gested he talk to the employees, President Corssen au- thorized it.' The employees were notified and the meet- ing was held in the rear of the shop in the separate bay where Mechanic Rezek regularly worked. On the weight of the evidence generally I find the meeting lasted ap- proximately 30 to 45 minutes and took place at the end of the workday of the shop employees, probably some- time between 4:30 and 5:30 p.m. Present for Raycor were Corssen Sr., Schmal, and Rosenberg. Employees in attendance were Algerio, Gourlay, Labriola, Pomerantz, Rezek, and Stone.20 18 Algerio had initially placed Rosenberg's inquiry of him within 3 to 5 days of the union meeting, though on rebuttal Algerio placed it more definitively in time as occurring after the union meeting on August 9 and before management's meeting with employees which I find occurred in the late afternoon of August II 1. Since I have credited Schmal's corrobo- rated testimony that Rosenberg did not come out to Raycor premises on this matter until August II, I am convinced the interrogation of Algerio occurred during the morning of August II1. I9 These findings are based on mutually consistent testimony of Cors- sen, Schmal, and Rosenberg. However, to the extent President Corssen's testimony would indicate that Rosenberg did not discuss with him having already asked any others if they knew anything about the Union and their negative replies, I do not credit it on the basis of seeming implausi- bihty in view of the subject of their luncheon discussion. 20 Falabella was not present as he had been bitten by a dog and was having the injury treated that day. Pettinato was absent that day, and he was discharged effective the next day. Corssen, Jr., was not in attendance as it was his regular day off, and Michael Corssen was also not in attend- ance. Pomerantz (who was terminated on August 26) and Rezek, both of whom were in attendance at the meeting, did not testify in this proceed- ing RAYCOR CO. 571 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Holding the Union's telegram up in his hand, Rosen- berg began the meeting by telling the employees that Raycor had been contacted or approached by two union men and had received that morning from the Union a telegram stating that the majority of Raycor employees had requested the Union to come in. Rosenberg then asked the group of employees if anybody know anything about it, and the employees all answered no.21 According to Labriola, Rosenberg then first pointed to him and asked if Labriola had signed a union card. La- briola replied no. Labriola relates that Rosenberg then went around the room asking each of the employees in- dividually the same question and receiving the same answer. Algerio did not confirm this. Stone's recollection in this matter was also not wholly convincing in support. Stone relates that the employees were individually asked by Rosenberg or Corssen Sr. if the employee had signed a card or if the employee had contacted anybody in the Union. Stone did confirm each employee replied no. In contrast, Rosenberg's recollection was only that he had asked each employee individually if the employee had been approached by any member of a union, and each replied no. President Corssen supported Rosenberg in denying that Rosenberg had asked the employees who signed a card or who went to the Union, and Schmal's recollection in this particular area was acknowledged by him as limited, and is not helpful. However, employee Gourlay, who impressed me as a generally frank and candid witness, related that Rosenberg had begun the in- dividual questioning with him and had asked him and the other employees individually such questions as had the employee been to a union meeting, met a union official, or met anybody from the Union. Gourlay confirmed each employee replied no. Gourlay did not recall any questioning on who had signed a card. I am convinced from the weight of the above evidence and I find that in this meeting Rosenberg interrogated the employees as a group, and then interrogated them individually, essential- ly as to whether they had had any contact with the Union, be it union officials or members; but that he did not inquire of them at this time (e.g., poll them) as to whether they had signed union authorization cards. 22 However, I do not credit Rosenberg's and Corssen's e2 These findings are based on essentially mutually consistent and cred- ited testimony of employees Stone, Algerio, and Labriola, and the nota- bly not inconsistent testimony of Rosenberg, Corssen Sr., and employee Gourlay. 22 To begin with, the record warrants the finding that these officials of Raycor were novices at this time in such matters. I am simply not per- suaded by the testimony of Labriola that each employee was asked if he had signed a card. As will become clear infra, Labriola's recollections as to this meeting were simply in many other respects either confused or not shown supported by others in attendance, and on this matter his rec- ollection is not convincingly supported by Stone, let alone any others. In contrast on this matter, the testimony of Corssen Sr. was firm and con- vincing and was consistent with the recollection of Rosenberg and, par- ticularly, Gourlay. If any employee, let alone each and all of the employ- ees, had been asked if they had signed a card, I believe Gourlay would have recalled that fact, certainly as to himself, and would have testified as to it. For much the same reason I do not credit Stone's recollection that Rosenberg essentially then told the employees that he was going to request from the Union the names of the majority of the employees who wanted the Union in the light of a similar lack of corroboration and Gourlay's testimony that he recalled no reference to a letter or future in- quiry on same. summary testimony that the meeting degenerated at this juncture to merely miscellaneous side discussion, though it did develop clearly into a management-employee gen- eral discussion of employee gripes and wages and work- ing conditions. Thus, Stone (essentially corroborated by Gourlay) mentioned his family situation and brought up that he was tired of the circumstance that every time they looked in the newpaper they saw an ad for a mechanic at Raycot; and that it was like it came down to from one week to the next they did not know if they were going to have their jobs.23 Stone's recollection was that they said (generally) that they would see what they could do about it; but Stone confirmed they also mentioned they let Richie Pettinato go, but they were going to do that anyway because of his lack of attendance and punctual- ity. In testifying as to the above incident, Labriola, on direct examination, had related that President Corssen had initiated Stone's above statements by asking Stone, "Why do we need a union in the shop?" However, Stone, testifying subsequently, did not corroborate such a remark was made by Corssen (or by anyone else), nor did anyone else corroborate it; and Gourlay, in his recol- lection, testified he did not think that was the case. In contrast on cross-examination, Labriola had himself for- gotten who had made the remark. I do not credit La- briola in that respect; and further, I am constrained to conclude on the basis of the above considered finding and other similar such instances deemed readily apparent of record that Labriola, in testifying as to certain matters which others did not corroborate, evidenced a proclivity to embellish events with union or antiunion overtones, which substantially has weakened the persuasiveness of his individual testimony when uncorroborated or not otherwise shown supported independently by the record. I am thus wholly convinced and I now find only by the above-credited conduct of Respondent's agent, Rosenberg, on August 11 in respect to his initial inquiries of Algerio, Benson, and the certain other employees es- sentially as to what they had heard or knew about the Union, whether they had been approached by the Union, and who was involved in it, and his later questioning of the shop unit employees as a group again generally as to what they knew about the Union, and then individually in the group essentially as to their individual contact with the Union, that Respondent has thereby unlawfully interrogated its aforesaid employees in regard to their union interests, sympathies, and activities, and as to the union interests, sympathies, and activities of other em- ployees, in violation of Section 8(a)(l) of the Act. According to Stone, Rosenberg also said to the em- ployees, "Do you know that some people in the shop might be reclassified in a lower classification? There is a thing called class C mechanics and they only make mini- mum wage"; Stone recalled Rosenberg then mentioned $2 and some change. However, Rosenberg recalled to the contrary that it was Stone who had raised the subject 21 Other circumstances involving pledged credit, discussed infra, render quite plausible Stone's concerns in this area at this time. RAYCOR CO. 573 that there should be more incentive to earn money.2 4 Corssen Sr. did not corroborate Rosenberg. Significantly, both Corssen Sr. and Schmal generally confirmed that there was discussion by Rosenberg of the mechanic clas- sifications. More significantly, General Counsel estab- lished on cross-examination of Gourlay that Rosenberg had mentioned A, B, and C mechanics and that he indeed had said, if a union came in, some mechanics may be in class C, so it might be a step down for some people. Gourlay recalled generally that something was also said about the pay, though he did not remember what it was. I thus am not persuaded by Corssen Sr.'s additional testimony, in nature conclusionary, that such statements were not made in relation to the Union. Whether it was Rosenberg who initially broached the subject of wages or not, I am equally convinced and I now find that Rosenberg did tell the employees that, in substance and effect, with a union in the shop some of the employees would risk receiving lower classifications and resultingly suffer reduced wages; and I further con- clude and find that the same constituted an interference, restraint, and coercion of employees in their free exercise of Section 7 rights, which conduct was thus itself viola- tive of Section 8(a)(l) of the Act. 25 Stone also related that Corssen Sr. told the employees that they were like a family there; and that, if it was money or something like that, if they wanted more money, he could put them on piecework. (Labriola testi- fied Corssen explicitly said "I will give you an incentive plan." Neither Stone nor Algerio corroborated such an explicit offer was made.) Corssen Sr. denied that he had told the employees that, if they wanted, he could insti- tute piecework. However, Corssen Sr. otherwise did confirm that he told Stone that he had worked for an- other company on piecework and had then explained to employees how it worked; and, significantly, he con- firmed telling the employees that you can make money on piecework, though relating he also told them it is very hard to do so. Rosenberg recalled Corssen did speak of his own experience of being paid by the job rather than by the hour in terms of: "If you are a good mechanic, that is the best way to do it. But if you are not a good mechanic, you have to redo the bad work over again on your own-at your own cost. For some people it's good, for some it's bad." Gourlay also con- firmed that Corssen did discuss his own work experience in another shop,2 6 and said that employees could basical- 24 According to Rosenberg, Algerio also voiced a complaint about the money he was earning, and Rosenberg replied "It seems to me Joe, that you are doing very well here, that you have got a nice increase, you get bonuses and you also get a percentage of the parts that are sold. So it looks like you are doing fairly well from where you started." Rosenberg testified that Algerio replied that he would always like to do better. 25 The complaint was amended at the hearing to allege that Respond- ent threatened to "lower job classifications with lower rates of pay, less agreeable and more arduous working conditions, and other reprisals." I thus find merit to the amended allegation as to the implied threat of lower classifications and reduced wages. For reasons clearly appearing hereinafter, I find no merit to the remainder. 26 In passing, I do note that Labriola's recollection on this matter was that Corssen Sr., in relating his past work eperience, had identified it as being with a union dealer. No other witness confirmed this, and Corssen Sr. testified that his prior employment was not with a union dealer. I credit Corssen, and I also do not believe he told employees to the con- trary on this occasion. Nor do I credit Labriola's again uncorroborated ly go on incentive bonus and make a lot more money out of it, but that it depended on the individual: "[I]f you are good you can make it, if you're not good, you won't make money, if you don't fix it right, then you have to repair them on your own time." Following so immediately on the heels of interrogation of the employees as to their union interests, sympathies, and activities, it seems to me eminently reasonable for the same employees to have discerned in these statements the thinly veiled willingness on the part of Respondent to afford them an incentive method of payment as an al- ternative means of earning more money, albeit with the frank caveat errorless performance that would then be required. I so find. I thus conclude and find that, by making such an implied promise of benefit, Respondent has interfered with the free exercise of Section 7 rights in violation of Section 8(a)(1) of the Act as alleged in the complaint. On what may be perceived as one of the more serious of the 8(a)(1) complaint allegations, namely, the alleged threat of plant closure, I find that General Counsel's evi- dence was least convincing. Labriola testified that, during the discussion, Corssen Sr. told the employees, "we don't want a union telling us how to run our busi- ness," and that Rosenberg then said they would be better off shutting the doors and putting locks on them. Stone's version was in part supportive, but still less than persua- sive, recalling it was said that they did not want a union coming in and telling them how to run the business, that it would not pay, that they would be put out of business, and that they might as well put the lock on the door. However, Stone was unsure whether it was Corssen Sr. or Rosenberg who had made these statements, though as- serting that one or the other had. Algerio's version in ob- vious summation style was less impressive in accuracy of recall. Thus, Algerio testified Corssen said it would force him out of business, he would just as soon put the key on the door and walk away, he could not survive, and he would go down. Raycor officials in turn denied that any- thing was said about locking the door or the shop up. Gourlay testified significantly and affirmatively that he did not hear Corssen say, if a union came in, they might as well put a lock on the door, nor anything about the shop closing; and he also heard no reference by Corssen about not being able to afford a union. Gourlay's testi- mony is thus largely supportive of Corssen, though this one issue is observed to be in direct conflict with Al- gerio, Labriola, and Stone. Gourlay's testimony general- ly did not suffer the record credibility infirmities of the other witnesses, and I can discern no viable or convinc- ing reason to discredit him on this serious matter. Al- though I have found Stone to have been more consistent in his testimony and credible in regard to certain other matters, there are certain other instances where cause has appeared to discredit his recollection. In this serious matter (particularly in vagueness as to authorship) he was neither fully convincing nor controllingly persuasive testimony that Rosenberg told the employees that without a union they could get up to 300--S400 a week in comparison with class C mechanic wages of $2.30, though this may have been his personal assessment upon hearing from both Rosenberg and Corssen Sr. on wages and on the in- centive method of payment. RAYCOR Co. 573 573 - f - 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the face of Corssen's corroborated denials. It was the General Counsel's burden, as it is in all complaint allega- tions, to convince me by the preponderant weight of credible testimony that the facts of the complaint allega- tion are true, which in this instance, I conclude, he has failed to do. I shall, accordingly, recommend that the complaint allegation that Respondent threatened to close its plant in violation of Section 8(a)(l) and (5) be dis- missed. C. Company knowledge considerations; the union representatives' visits to Raycor premises Some degree of confusion in the record may be allevi- ated with the preliminary observation made that, while Elliott in his testimony speaks of but two visits to Ray- cor's premises, the union representatives actually visited the premises four times. The first and third visits of El- liott (and Oliveri) have already been noted; namely, the demand for recognition made on Schmal on August 10 and the request for reinstatement of Algerio and Stone made to Corssen on September 6. President corssen re- lates there was an intervening (second) visit which is compatible with Stone's recollection and, I find, which probably occurred on August 15 or 16. The last (fourth) visit occurred a few days to a week into the strike on the occasion when the union officials sought the release of Stone's working tools. Close attentiveness to the wit- nesses' testimony in that light assists in resolution of some existing factual conflicts and is helpful in the evalu- ation of the extent of Respondent's awareness of individ- ual employees' observed contact with union officials on the premises. It was Elliott's recollection that, after initially talking to Schmal in the service area on August 10, he had then walked to the nearby parts room and reported to Algerio the conversation he had just had with Schmal. Accord- ing to Elliott's recollection, they (he and Oliveri) had then walked around the shop and spoken also to certain other employees, Stone, Labriola, and (he believed) Fala- bella. Elliott's recollection was that he told these em- ployees at that time not to do anything out of the ordi- nary and to make sure that they came in on time. 2 7 El- liott conceded that he had not noticed at the time wheth- er anyone saw him talking to any of these employees in the shop. Labriola testified only generally that he talked to the union representatives that day. Falabella did not corroborate Elliott as to such conversation with him as he did not testify as to having had any conversation with union representatives in the shop or on the premises prior to September 6. Elliott also testified as to a subsequent visit by the union representatives to Raycor's premises on September 2? Employee Pettinato was absent from work on the following day (August I 1) and discharged on August 12. Pettinato's discharge was for a continued absence and lack of punctuality. It occurred after Pettinato had received prior warning from Schmal over similar conduct, and his dis- charge is uncontested in this proceeding. I would thus presently addition- ally note that it would seem the more probable for such a comment by Elliott (if indeed made at the shop at all) to have been made following Pettinato's August 12 discharge rather than before (on August 10) as re- called by Elliott, particularly in the light of the recent union access and considerable discussion with the employees (including Stone and Pettin- ato as well as Algerio) in the union meeting held the very night before. 6, and to the holding of a conversation with President Corssen at that time (in regard to the intervening dis- charges of Algerio and Stone) with Schmal present; but Elliott did not otherwise recall (on cross-examination) having met President Corssen earlier; i.e., prior to the representation hearing/conference held on August 25.28 However, President Corssen thereafter testified (without subsequent contradiction by Elliott) that there was the intervening (second) visit of the union representatives to the premises. Thus, President Corssen testified that the two representatives had come in and spoken to him in his office, and that they had at that time presented Cors- sen with two forms for recognition of the Union that he should sign, telling Corssen at the time that it would be better if he did so because it would otherwise cost them a lot of money.29 First observing that there was some variance in the testimony of Algerio as to the date, and that Algerio did not testify as to any warning given to him by Elliott to be on time, I note Algerio did relate an occasion when Elliott had reported to him in the shop that Elliott had given Schmal the proposal to let the Union come in and that Schmal had refused. I thus credit Algerio (and El- liott) to the extent of such a conversation being held with Algerio. Algerio also testified that Schmal and Ray Corssen, Jr., were both in the shop at the time Elliott had briefly conversed with him. Algerio recalled that Schmal was about 6 feet away in the service area and visible to Algerio through a window in the parts room, but, significantly, Algerio testified that he also had not observed Schmal watch them (Elliott and Algerio) talk. Algerio further observing that Corssen Jr. was at the same time some 35 feet away out in the shop in Stone's work area. However, there was no convincing evidence that Corssen Jr. was aware that the initial union contact with the Company was being made at this early moment; rather, I am convinced Corssen Jr. did not become aware of it until, at the earliest, Friday, August 12.30 g8 This is not to suggest that Elliott also met President Corssen at the hearing/conference itself, as I find that both Algerio and Corssen were not in attendance. Apparently, at this time Corssen Sr. was engaged in arranging for new car deliveries to Raycor premises prior to an anticipat- ed longshoremen's strike. "2 President Corssen acknowledged that at this time he was not famil- iar with the methods by which unions came to represent employees, nor with National Labor Relations Board proceedings in that regard. 30 Falabella's testimony in rebuttal, as to having observed Ray Cors- sen, Jr. at one point some 3 to 5 feet away from Schmal in the vicinity of the hall or corridor at the (earlier) time Elliott was talking to Schmal, does not persuade me that Corssen Jr. was resultingly shown to have been aware even at that time of the union demand event then transpiring, particularly with Corssen Jr.'s subsequent convincing testimony that he was without such knowledge. I am, however, convinced that Corssen Jr., within a few days, did become aware of the prior contact of the Union. Thus Corssen Jr. did testify that Schmal had mentioned to him that he got something in the mail about a union, a telegram (so he thought), and about the Union coming in, but that was all. Although Corssen Jr. also could not place such conversation in time, his recollections of Schmal's reference to a telegram receipt in the mail would appear to itself to logi- cally suggest that the occurrence of their conversation was probably on or shortly after his return on Friday, August 12, as the written copy of the telegram (I find) was not received in the mail by Respondent until the morning of August II, a Thursday, which has been noted was Ray Corssen Jr.'s regular day off. I also credit the undenied testimony of Ray- mond Corssen Jr. (corroborated as it is by Michael and Raimund Corssen Sr.) that his father had a rule not to discuss business at home, and I am Continued RAYCOR CO. 575 Stone confirmed that it was the day following the card signings, thus August 10, that Elliott and Oliveri initially came in to the shop and spoke to Schmal. However, Stone (also) did not offer any corroboration of Elliott as to any conversation between Elliott and Stone that day. Rather, it was Stone's recollection that it was later, about August 15 or 16 (Monday or Tuesday) that Elliott and Oliveri had come by his workbench while he was working on a car. Stone testified that he was alone at the time, recalling that Labriola was out testing a car, and he recalled also that neither Falabella nor Pomerantz was there, circumstances wholly consistent with the noted failure of Labriola and Falabella to subsequently confirm that any other personal conversations had occurred be- tween them and Elliott on the premises (even) at this time. Stone's further recollections were that the union representatives on this occasion had told him that they had requested Corssen to sign the papers that would give them the right to have a vote in the shop, which also ap- pears compatible with President Corssen's (inexpert) summary of the visit, and that Corssen had refused and was not going to sign the papers. I am convinced on the basis of the above, and I find, that Elliott is misstaken as to whom he spoke on his first visit; and I find that he did not talk to either employee Stone or Falabella on August 10, though he did talk to Labriola and to Algerio on that date. I am further convinced and find that the occasion of a conversation with Stone (but not others) relates to Elliott's second visit, which occurred the next week and probably on August 15 as Stone recalled. Stone also testified that Ray Corssen Jr. had seen the union representatives in the shop that day talking to him. However, such involves a conclusion on the part of Stone and not admission by Corssen Jr. that at that moment he knew their identity, for Stone also testified that Corssen Jr. had asked who they were. Stone's reply was noninformative as he told Corssen Jr., "I don't know. You know they just came up to me and asked what I was doing." However, I have found Corssen Jr. did shortly after his return to work become aware that the Union had contacted Respondent. On direct examina- tion Corssen Jr. nonetheless asserts that he was not aware of any union representatives coming to the shop prior to September. Corssen Jr. confirmed Stone that on an unspecified date he had previously seen two individ- uals with or near Stone in the shop area, and that he later learned they were union representatives upon seeing them on the picket line in September. He also tes- tified that he had not known who they were at the time he first saw them in the shop area. I credit the latter, but not the former, for the following reasons. At the hearing Corssen Jr. recalled that on the particular occasion in question he was outside with some customers about noontime one day (noted as consistent with Stone's rec- ollection that he was alone) when he had observed the two men in the shop area through open shop doors. Corssen Jr. was quite plausibly sensitive to the circum- stances that the shop is a posted one, and that unauthor- ized visitors are not permitted in that area because of in- wholly convinced and I find that Corssen Sr. had not discussed the Union with them at home in the interval. surance restrictions. Additionally, Corssen Jr. testified that Respondent keeps chained attack watchdogs on the premises, that there exists danger that, if a person strays within chain length, he will be bitten by an attack dog, and that such had occurred in the past. Corssen Jr.'s in- terest in the men in that area at that time on the basis of the above evidence considered alone is equally support- able of an inference of an interest prompted by business reasons as well as union considerations. As we shall see, I am convinced it partook of both. Corssen Jr. testified that, after he finished with his cus- tomers, he returned to the shop area because he wanted to see if the men were still there. He observed that the men were no longer there. Nonetheless, he confirmed he had then asked Stone who the men were because they had been in Stone's area. Corssen Jr. essentially corrobo- rated Stone that Stone had then told him that Stone did not know who they were; and, when Corssen Jr. then asked what they had said, Stone had replied something like "they wanted to know what he was doing, that's all." Corssen Jr. testified that Stone's answer had satis- fied him at the time. Corssen Jr.'s testimony at the hear- ing as to this event in large measure is observed to be essentially factually compatible with that of Stone.3' However, the related evidence does not end here, though the compatibility of the account between Stone and Corssen Jr. significantly does. Stone also testified that it was later that afternoon, on an occasion when Stone was coming out of the restroom, that he had overheard through the wall partition (but did not see) Corssen Jr. engaged in a conversation with an- other person in the showroom. Stone testified that he heard Corssen Jr. ask, "Who were those guys that were in the shop this morning." An individual, whom Stone at the hearing would identify as having been either Corssen Sr. or Schmal, replied they were from the Union. Ac- cording to Stone, Corssen Jr. then stated he had seen the men talking to Stone at Stone's workbench. At the hear- ing, Stone offered the explanation that he had concluded it had to be either Schmal or Corssen principally because of accent, testifying that it was not Rezek who had a dis- tinctive accent, nor Gourlay, whom he recalled was on vacation at the time. Although the record reveals that Gourlay had not started his vacation until later in August, Stone's additional testimony that mechanics would not have been in the showroom at the time was not convincingly contradicted. However, Respondent did establish on cross-examination that Stone had been more definitive in identification in the prior affidavit given on October 4, and had then identified the person speaking with Corssen Jr. as being Corssen Sr.32 31 In passing, I note that despite the prior affidavit seeming to place the incident earlier than August 15 or 16, at the hearing Corssen Jr. was unwilling to specify the date of this incident, testifying it could have been the beginning, middle, or end of August, as the incident did not occur to him to be anything special until after the picketing began. I find the indi- cations of the prior statement as to the date not of controlling signifi- cance because of the weight of consistent evidence from several sources that this event took place on August 15 or 16, and in any event later than August 9 or 10. 32 Respondent would argue that this identification vacillation had only occurred after it was indicated that Corssen Sr. was not present on Wednesday, August 10. However, the underlying premise is observed to Continued RAYCOR Co. 575 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Corssen Jr.'s testimony in the main was that he was not involved with the Union; and he has effectively indi- rectly denied the above conversation with Corssen Sr., as he testified that his father did not talk to him about the Union, and that he did not know who the men were until the strike began on September 6 when he saw them on the picket line. Corssen Jr. also testified that he had nothing to do with the subsequent discharges of Algerio and Stone, and that he did not learn about the reasons for their discharge until after the strike began; but on cross-examination he retracted the latter assertion, con- ceding the inherent probability was that he would have inquired and learned of their situation earlier when he observed Algerio and Stone were not at work. Further- more, although also denying that such a conversation could be overheard by one on immediately coming out of the restroom, he otherwise conceded that, if an indi- vidual were passing by directly on one side of the room partition, the individual would be able to overhear such a conversation if carried on directly on the other side of the partition in the showroom. Stone's overhearing of such a conversation is one which is thus deemed wholly feasible. Corssen Sr. did not specifically deny the con- versation. He testified rather that he did not recall any conversation (other than those referenced by him herein) about the Union prior to August 25. Benson, a wholly credible witness, testified to the contrary.3 3 Thus, Benson, initially called as a witness by Respondent, sig- nificantly also testified that, after Rosenberg's question- ing of her on August 11, President Corssen had some- time later in August asked her if Ray Stone had men- tioned anything to her about a union; and that, when she had replied no, Corssen Sr. had then said to her that he did not think a union was necessary in the shop as they were too small, but, if they voted the union in, there was nothing he could do about it. I credit Benson. It was stipulated that a copy of the petition filed on August 12 was subsequently served on Raycor on August 17 with enclosed notices (of employee rights). The latter notices were promptly posted by Schmal in the shop. There is no evidence of any further or subsequent independent al- leged violation of Section 8(a)(1) (that is, unrelated to discharges). Indeed, Benson otherwise testified that Cors- sen Sr. never told her that he would prefer the Union not to come in, nor did he ever ask her to obtain any information about the Union.34 1 am fully convinced that, by the time of the instant conversation under dis- cussion, Corssen Jr. was aware the Union had recently contacted the Company about "coming in" or "unioniz- ing" the shop. I further conclude it was already the Company's adopted position as of August II to await clarification of the issue and withhold and/or decline recognition to the Union at this time. Equally significant, the questions that Corssen Jr. asked of Stone are fully be faulty, as I have credited Stone's recollection of the incident as occur- ring later, and find that it occurred probably on the fifteenth. which is compatible with Corssen Sr 's testimony of a second visit. a3 Employee Stone was married to Benson's niece, and Benson was in- strumental in Stone's initially obtaining his employment with RespondenL a4 In view of the numerous earlier findings of unlawful interrogations of employees, it would seem unnecessary to reach any issue of whether under the circumstances the latter inquiry of Benson, not a matter of spe- cific complaint allegation, was a matter fully litigated herein compatible with, though not by themselves conclusive of, an interest in identifying the men who had ap- proached Stone in his work area and their purpose in doing so. Indeed, the questions actually put would appear to be more so (content wise) than with an ex- pressed design only to remove or preclude return of un- authorized visitors from the restricted area. Thus, there was no warning or criticism of Stone in the latter regard. Although the issue is not one free from doubt, I con- clude and find that the evidence presented by the Gener- al Counsel prevails in showing the overheard conversa- tion advanced by Stone was both feasible and more probable than not. I accordingly find that President Corssen at this time was made aware of a report that union representatives had made a personal contact with employee Stone in the shop on August 15. Finally, al- though there is no convincing evidence of record that Algerio was similarly observed by Respondent in contact with any union representative in the shop, on this record, Stone and Algerio (though Algerio less so) appear to have been the principal outspoken employees at the Raycor employee group meeting. As noted, a subsequent prehearing election agreement conference was held by the Regional office on August 25. Present for Raycor were Schmal and Rosenberg and for the Union were Elliott and the Union's attorney. Among discussion, following which the parties arrived at a consent election agreement, there was a discussion of the eligibility of Algerio and the noneligibility of Mi- chael Corssen. After discussion of Algerio's status by the parties and the board agent, which indicated at that time his nonpossession of statutory powers, Algerio's name was added to a submitted list of employees on the pay- roll, while the name of Michael Corssen was in turn de- leted on the basis of being ineligible by virtue of being the son of the major stockholder and president of Re- spondent.35 Rosenberg's relations as to what happened thereafter are somewhat confusing. At one point he re- lates management sat down to discuss the possible out- come of the election, only to otherwise relate he was very late for an appointment to which he was driven by Schmal, and he left on vacation the next day. In any event, it was Rosenberg's recollection that it was by virtue of this conference and the Union's claim therein that it had signed cards from the majority of the shop employees that they realized the shop employees had not told them the truth. According to Rosenberg (denied by Schmal and Corssen), they subsequently sat down and tried to figure out who was for the Union and who was not, hoping the Union would not win, but concluding the Union was favored. Rosenberg's testimony was also confusing, if not inconsistent, on the evaluation made specifically as to Algerio and Stone. Thus, Rosenberg initially testified that they did not think Stone was in- volved with the Union, but were not sure of Algerio, "I The Employer had submitted to the Board's Regional Office in con- nection with the representation case matter a list of shop employees pre- pared by Benson at Respondent's instruction. Algerio's name did not appear thereon, while Michael Corssen's did. The list (presumably used administratively as a showing-of-interest list) was, in any event, apparent- ly used as a working list in the election agreement discussions and for future service in preparation of an "Excelsior List'" for the upcoming election. RAYCOR CO. 577 and that he did not remember either Schmal or Corssen saying that Algerio and Stone were for or against the Union, only to testify on another occasion that sometime after the meeting he believed that Corssen and Schmal had indicated they thought that Stone and Algerio may be prounion. Although both Corssen and Schmal have denied such discussions and evaluations took place, I construe the testimony of Rosenberg as an admission against Respondent's interest, noting that Corssen Sr. otherwise did testify that Schmal and Rosenberg had re- ported back to him that an election had been set up. I conclude and find that, at some point prior to the dis- charge of Algerio and Stone, Respondent's principals had in fact formulated the opinion that Algerio and Stone might be prounion, and that it was likely the ma- jority of the employees would vote for the Union. It re- mains to consider the evidence as to whether the subse- quent discharges of Algerio and Stone were for that reason or for other surfacing just and independent cause, as urged by Respondent was actually the case. D. The discharges of Joseph Algerio and Ray Stone According to Algerio, he was working overtime on Tuesday, August 30,36 when at or about 6 p.m. Corssen Jr. came up to Algerio and told him that Corssen Sr. wanted to see him for a minute. Algerio went to the front office to see President Corssen. There was no one else present. Algerio was notified he was being terminat- ed. According to Algerio, the principal reason initially given to him for his termination was that there was a business slowdown, and that only secondarily were other reasons advanced, viz, that there were too many bills coming in and that he should not have extended credit as he did. Thus, according to Algerio, President Corssen told Algerio that he was going to have to let Algerio go because business was slack of late, or slowing down. Al- gerio replied he did not believe that because he had just received a pretty good commission check for the first week in August, and asked how could business be off if he was selling more parts.a 7 According to Algerio, it was only then that the other reasons were mentioned, with Corssen Sr. saying: "You cost me too much, I have to let you go. I can't do anything about it, I have to run the parts room myself."38 Algerio also testified that President Corssen had also told him that he should not 38 Although initially testifying that he was discharged on August 29 as the complaint alleged. Algerio later confirmed that he was working on August 30 when certain supplies were delivered, which included an erro- neous delivery of an excessive amount of spark plugs, which, because of his termination, he did not have an opportunity to correct. It was Re- spondent's contention that the foregoing overordering of spark plugs was one facet of Algerio's general overordering, discussed inia. "7 Algerio related as other considerations that business in relation to the prior year was not slowing down, that BMWs were becoming the in- car, that the summer was busier than the summer of a year earlier, and that the oncoming winter (he felt) would be busier likewise. Algerio also related that in the beginning of the fall is when all the new cars come out, and is also a period when there are a lot of cars sold which are left over from the prior year. Although all of these considerations may vwell have been true, they do not offset the thrust of fiscal records in regard to an excessive inventory buildup, discussed infra. 38 On another occasion Algerio confirmed Corssen had said, "We can't afford to keep you here: it is costing too much to run the parts de- partment; we will have to do it ourselves " have extended credit to people in the shop. Algerio asked as to whom he should not have extended credit, and Corssen replied, Ray Stone. According to Algerio, they then went back to the parts room so Algerio could get his personal belongings. Algerio recalls that Corssen made some inquiries about some of the things that had to go out the next day, and, after Algerio explained them,3 9 he then left. Algerio testified that he has never thereafter been offered his job back. On cross-examination, Algerio acknowledged that he came in the next day, August 31, a Wednesday (Corssen Sr.'s day off), and talked to Corssen's secretary, Benson, requesting a letter that he might take to the unemploy- ment office in regard to being laid off from work by Corssen (solely) for lack of work. (Algerio would ex- plain this action on the basis that the major reason for his layoff was President Corssen's statement to him that business had slowed down, and that other reasons of overordering parts and extension of credit improperly to Stone were only added by Corssen at the end of their conversation.) According to Algerio, Benson replied that Algerio would have to wait until President Corssen came in. Algerio confirmed that he did suggest to the secretary that she write the letter up then, and, if Cors- sen said it was alright he would then sign it. However, the secretary declined, saying she would wait until Presi- dent Corssen came in. According to Algerio, when Cors- sen came in, he would not let Benson type up the letter and said he would not sign it. (Algerio testified that he was subsequently denied his unemployment claim be- cause of claimed discharge for cause in overordering parts and certain credit extended on an engine, infra.) Benson testified that she first learned of Algerio's dis- charge on the morning of August 31 (Wednesday), when Algerio came into her office and asked her, "Would you give me some kind of a letter stating that I was let go because of lack of work so I can go down to file for my unemployment." Benson told Algerio she could not do that, and also that she did not think that was the way they handled it, telling Algerio that normal procedures were that he had to first go down to apply for unem- ployment, and "they in turn will send us a form to fill out, and we'll send it back to them." Benson further re- lates that she confirmed it with Schmal, who instructed her not to do so, and that Algerio should go through normal channels. The parties stipulated Corssen Sr. was not on the premises that day. I credit Benson. Respondent confirms that Algerio was discharged be- cause he overordered parts, but also because of an exten- sion of credit to employee Stone, which they concluded he had covered up. Thus, Corssen Sr. testified that in early June he no- ticed that the bill for parts (viz, for May purchases) was extremely high. At the time Algerio was in full charge of 39 Algerio confirmed that one such item as an outstanding hill f Ja- cobsen's Garage This customer had given Algerio a large dsit ad had three bills for supplies ordered The deposit was suffilcient to( cer 75 percent of the amount due. but enough only to co'ser to of three bills The two bills and deposit were processed through the secretar Ittie recalled that the remaining hill, which was not fully paid, w;il either on his clipboard (where he regularly kept unpaid hill) or th the certain parts not as yet picked tip Algerio explained that as a pending natler to Corssen Sr RAYCOR Co. 577 the parts department, which included the ordering of parts. (Corssen Sr. testified that, following his account- ant's review of the Company's May statements, he had a discussion with his accountant, who at that time first warned him that the Company was buying too many parts, and that Rosenberg had recommended at that time that he go to Algerio and slow it down, as the Company was investing too much of its cash in parts. On cross-ex- amination Corssen Sr. otherwise explained sales were not evidencing the usual 30 percent (to 40 percent) retail markup on the parts being purchased. 40 Corssen Sr. re- lated that it was on this occasion, and for the first time, 4 1 that he went to Algerio and instructed Algerio that he was to slow down in his ordering of parts as the amount of money being spent on parts by the Company was too much. At the beginning of the following month (July), parts orders (for June) were lower, but, according to Corssen Sr., still higher than the prior average to which he was accustomed. Corssen Sr. related that he again spoke to Algerio, telling him to make the orders as low as possible. However, when the July bill came in (in early August), it was again high. According to Corssen Sr., on this occasion he told Algerio that from that point on Algerio was to order parts only for warranty pur- poses or on customer direct orders; and that on any stock items Corssen Sr. desired to first see the order. Corssen Sr. testified that they were required to pay the BMW bill every month or stood to lose their credit, that they were always a little behind in paying other bills, but that the payment of their other bills at this time stretched to over 60 days, which was not normal. Rosenberg wholly corroborates Corssen Sr. as to Re- spondent's developing fiscal difficulties and their causes. Thus, Rosenberg relates that his firm would have an em- ployee collect financial data once a month which Rosen- berg would review monthly. Rosenberg confirmed that he had earlier made recommendations to Corssen Sr. concerning the amount of parts ordered. Rosenberg re- called that Respondent had some difficulty in meeting its payments to BMW in May because parts purchased were 1976 BMW Parts 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1977 Feb. Mar. Apr. May June July Aug. in excess of sales. Rosenberg testified that in June he rec- ommended to President Corssen that a stop be put on the purchase of parts, and told Corssen that he should buy only what he needed. Rosenberg related that Corssen re- plied he would do so, that he observed purchases de- clined in June, but that in July and August the parts orders placed skyrocketed again. The parties have introduced by stipulation that parts orders and sales monthly totals in the pertinent period were as follows: BMW Parts Ordered $7,162.88 8,535.64 10,336.69 14,394.06 9,398.02 15,540.38 15,306.77 $80,674.44 BMW Parts Sales $16,665.40 10,923.40 15,193.36 11,230.29 18,724.94 17,315.74 19,562.38 $109,615.51 It is initially observed that sales in May were $3,163.77 below parts orders in May, and that parts orders were reduced in June only to exceed the level of May's orders in the months of July and August. On the other hand, it is observed in the same 4 months that total sales exceed- ed parts ordered by $12,194.02 ($66,833.25-$54,639.23); and in the 6-month period ending in August sales exceed- ed parts orders by $28,941.07 ($109,615.51-$80,674.44), as Algerio generally testified was the case and was a factor not being considered by Respondent. It is further ob- served, in passing, that sales in the first 3 above months immediately prior to the May parts order placed by Al- gerio exceeded parts ordered in the same period by $16,746.95. Nonetheless, it was Rosenberg's testimony that on his analysis in May it was very obvious that the amount of parts ordered were excessive. The comparative differences and ratios of 1977 orders and sales as compared with 1976 are the more reveal- ing: 1977 BMWParts Feb. Mar. Apr. May June July Aug. Orders $3,450.79 4,695.12 4,709.17 4,528.28 6,089.00 6,124.88 5,873.93 $35,471.17 Sales $10,027.90 11,027.09 10,120.12 8,170.27 12,244.25 11,575.85 12,082.47 Differences $6,577.11 6,331.97 5,410.95 3,641.99 6,155.25 5,450.97 6,208.54 Orders $7,162.88 8,535.64 10,336.69 14,394.06 9,398.02 15,540.38 15,306.77 Sales $9,502.52 2,387.76 4,856.67 -3,163.77 9,326.92 1,775.36 42 4,255.61 Differences $16,665.40 10,923.40 15,193.36 11,230.29 18,724.94 17,315.74 19,562.38 $10,615.51 _. _ _ _ _ _ _ -- --- --- -- -- -------- $75,247.95 $39,776.78 $80,674.44 $35,268.61 40 For example, on the May parts' order of $14,394.06, a 30-percent retail markup would call for corresponding sales of $18,712.28 ($14,394.06 parts' order plus markup of 4,318.22), as compared with actual sales that month of l11,230.29. Of course if 40-percent markup were to ie factored, the variance becomes even more pronounced. 4" Algerlo istified that since the beginning of the year with higher parts' orders occasioned because of higher sales, Schmal and Corssen Sr., nonetheless, had routinely been critical of his parts' ordering because it was higher than the prior year. However, I credit Corssen Sr. that he did not discuss the parts' orders in the period February-April, as being more probable in view of the 30-percent markup that is shown was realized in these months. 4Z Corssen Sr.'s recollection of continued buildup in August is less per- suasive. Thus, the 30-percent retail add on to 15,306.77 for parts orders would essentially call for sales of $19,898.80 (15,306.77 for the orders plus the 30-percent retail markup of 4,592.03), comparing fairly with actual August sales of 19,562.38. However, as noted, Corssen was him- self exercising greater control over purchases at this time, and, as the record reveals, the rate was still not what it had been in the prior year, nor what it became in subsequent months after the discharges, viz, 1.6 to 1. RAYCOR CO. 579 Preliminarily, it is observed that, although sales in 1977 were up as attested to by Algerio, the sales-orders differ- ences in 1977 were down from 1976 in March and April and significantly so in May. It is readily apparent that either there was a profit drop in the sales-price/parts- cost ratio occurring, or an inventory increase had oc- curred, as was attested to by Rosenberg. No convincing testimony or evidence was offered to support the former. I credit Rosenberg that his analysis of the May monthly sales-orders totals indicated to him that a parts inventory buildup was occurring as of May 1977; and I find as well, as he noted, that after a reversal in June the build- up resumed in July. Stated in the overall and perhaps then the more simply viewed, on parts ordered February through August 1976 totalling $35,471.17, there were generated sales of $75,247.95 in the same period, or a 2.12 to I sales-to-parts-cost ratio; while in the same period in 1977, on $80,674.44 in parts orders and in- creased sales of $109,615.51, there was a significantly re- duced sales-to-parts-cost ratio of 1.35 to 1. As noted, Rosenberg concluded and testified the explanation lay in excessive parts purchases and inventory buildup. The same is further indicated by a comparison of the total sales excess in the lower monthly sales and orders in 1976 of $39,776.78 with the higher 1977 monthly sales excess over 1977 orders of $28,941.97; namely, $10,835.71 higher in 1976 despite the $34,367.56 increase of sales in 1977 over 1976. Finally, there is also more clearly discernible an inventory buildup in a comparison of the increased parts orders in 1977 over 1976 as com- pared with sales for the same periods; viz, comparison of a 1977 parts orders increase in the above 6-month period of $45,203.27 ($80,674.44 minus $35,471.17) with the 1977 sales increase of only $34,367, thus a net excess of parts orders over sales in this period of $10,835.73. I accord- ingly find that Corssen Sr.'s testimony that Algerio was overordering parts in this period was not only corrobo- rated by the firm's accountant, Rosenberg, but otherwise confirmed by the fiscal records herein. 43 Algerio's signed summarized dollar inventory buildup confirms this fact. It is nonetheless the General Counsel's contention that the parts ordering by Algerio was not the sole reason for Algerio's discharge, the General Counsel pointing out that sales were rising appreciably and the parts ordering cannot be attributed to Algerio's seeking personal remu- 's There was much litigation in this case relative to what I deem a subordinate contention that Algerio was overordering parts as a result of his taking part in a certain 6-month sales promotion competition put on by BMW, commencing in the general period of March, for personal gain, as to which, it would appear, the evidence is much less convincing. However, in view of the above findings that there was an overordering of parts by Algerio (for whatever reason), in my view, I need not reach or resolve such additional contentions. neration, as 90 percent of the sales made did not apply to Algerio's credit under the various sales promotion plans; and perhaps more significantly that Respondent was aware of the situation for several months, and indeed more recently had been responding to it by approving the orders made. There is a degree of merit observed in such contentions. However, that was not the only reason advanced for the discharge of Algerio (and Stone) at this time, which brings us to the factually complex issue of Algerio's extension of credit which had been made to employee Stone and Respondent's contended coverup by Algerio when Stone could not pay on time. Parts Room and Front Office Invoice Procedures To begin with as a matter of general background, Al- gerio sold parts both wholesale to nearby shops and retail to customers, which covered distribution of parts for repair of units serviced in the shop. He also ordered repair services from certain suppliers as required for Re- spondent's shopwork. Everything that was ordered from outside the shop was charged on Respondent's credit for bookkeeping purposes. When Algerio received the parts or services ordered, he would receive accompanying de- livery invoices from the supplier of same. Algerio main- tained a file in the parts room for each supplier of parts of services to Respondent in which he would retain the delivery invoices, and, at the end of the month (or when asked by the secretary who maintained her own invoice files), he would give the supplier files to the secretary for the payment of the monthly outstanding supplier bills. When items were sold retail (or wholesale) to customers for cash, a numbered receipt was generated and given to the customer, and a copy thereof with the cash was passed on to the secretary through an open window be- tween the parts department and the secretary's office. It appears that the above facts are not disputed. Algerio also testified that there was an established practice in the shop whereby employees could order parts from outside suppliers for themselves or friends, utilizing Respondent's credit. In such cases, pursuant to management's instructions, an unnumbered internal in- voices was generated in the name of the employee when the ordered part was received in the shop. (Parts were delivered either the same or next day.) Frequently, Al- gerio would collect the money on the spot when the part came in. The money with the generated unnumbered in- ternal invoice (original and copy) was then passed on to the secretary. Apparently not infrequently in the case of an employee purchase, if the part arrived in the begin- ning or middle of the week, Algerio would accept a later payment on Friday when the employee received his pay- check. On cross-examination Algerio clarified that, when the part (or service) came in, he would usually sign for the delivery. In the case of a part for an employee, he would then mark on the supplier delivery invoice that the particular part was received for the particular em- ployee, and then generate an unnumbered invoice for that employee also with cross-reference to the supplier invoice number. If a repair service similarly was ordered and came in, he would also sign for the repaired item, then generate the internal invoice and put on that inter- nal invoice the number of the repair supplier invoice. RAYCOR Co. 579 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The delivery invoice for repairs service would then go into his supplier file of such bills to be paid at the end of the month. According to Algerio, disputed in part by Respondent, prior to receipt of the money in payment for the part (service) purchased by an employee or a local customer, both the customer's or employee's (re- ceipt) invoice and the Company's copy thereof (whether numbered or unnumbered) were maintained on a clip- board kept in the parts room pending payment. Algerio relates that the employee would normally pay by Friday, if he did not pay in cash immediately; but, contrary to Respondent, Algerio testified that there was no estab- lished rule as to how employees should pay.4 4 Corssen Sr., testifying generally as to Raycor's overall invoice and billing operational procedures, confirmed that, when a delivery was made by a supplier or repair service, i.e., by the Emil Nass delivery man, a delivery (yellow copy) invoice went to Algerio which served as a receiving ticket. Corssen Sr. added that supplier Nass would subsequently send Respondent a monthly state- ment, or bill, with duplicate invoices for the month at- tached, which went to the front office (Benson). These two Nass invoices later came together for review when the bill was to be paid. In general, the front office went through the invoices, comparing the invoice numbers and amount on the yellow copy with the statement's in- voice; and, after that comparision was made, the bill was ready to be paid as that check indicated everything was taken care of. Corssen Sr. related that he normally was not involved with these procedures prior to payment. Benson fully corroborated Corssen Sr. with still addi- tional operative detail provided as to the billing proce- dures from her vantage point. Thus, Benson testified that the normal billing and payment procedure was as fol- lows: Every month Respondent would receive a monthly billing statement from their suppliers, including e.g., "Emil Nass." She would receive together with the bill- ing statement a white invoice copy for each of the re- flected part/repair services supplied. This would identify to her what was purchased/ordered in that monthly period. She confirms that, when parts, etc., were re- ceived at the shop, they were accompanied by a color- coded delivery/packing slip or invoice which would be normally signed for by Algerio as received by him and then kept in supplier folders in the parts department drawer. At the time of intended payment of the suppli- ers, Benson would ask Algerio for such delivery invoices (or in his absence obtain them herself), match them up with the invoices which accompanied the billing state- ment, prepare an appropriate check, and pass the afore- said billing statement and matched white and color- coded invoices on with the check for Corssen's final review and check signature. (Only Corssen Sr. or Schmal were authorized to sign checks.) If she were not paying the supplier bill for the month, she would merely staple the white invoices to the monthly billing statement and retain the same in her pending file for that supplier 44 Falabella testified his practice way to pay on the spot. Labriola's practice was to pay on the following payday (Friday) Gourlay did riot charge such items. Stone's practices apparently were to pay anywhere from the same day to by the second Friday except as to certain motor repair work performed by "Emil Nass," discussed infra. until payment was to be made. During the same period, the delivery invoices would be retained in Algerio's files. Benson confirms (contrary to Stone's understanding) that Corssen would thus not normally know any part, etc., had been purchased from a supplier until it was being paid for. President Corssen confirmed that employees have been allowed to charge parts (ordered outside) with Algerio, and that occasionally an employee has asked him or Schmal for a deferred payment, which has been granted. He also candidly admitted that he had never told Al- gerio that he was not to permit credit to be extended to employees over a certain amount, though he also could not remember an employee ever having had repair work sent out. Corssen Sr., however, testified in a firm manner that he instructed Algerio a year previously that every internal (employee) charge had to go up front right away or at the latest by that Friday, so the item would get paid for, or they would know about it. On rebuttal Al- gerio confirmed that he was instructed to write up such internal invoices, but denied that he was instructed to pass the internal invoice up to the secretary that same day or that week. Benson's regular duties included the custody of and comparison of all billing statements and invoices and preparation of all checks for payment. She confirmed that the BMW bill was the largest bill and was paid every month. Benson recalled that the BMW parts bills in the period June through August were quite high; and that in this same period she had occasion to hold back on payment of some other supplier bills because they were having trouble getting money together to pay all the bills since most of their cash flow was going to pay the BMW monthly account. Benson specifically recalled that July and August were two such bad months; and she testified that the monthly statement of "Emil Nass" was one such deferred bill. Another was that of supplier Select Auto Radio, Inc. 4 5 is According to Corssen, it was about mid-August when a supplier, Select Auto Radio, Inc. (SAR), visited Raycor and requested that their overdue bill be paid. The record reveals that the bill was paid on August 15 In reviewing the SAR statement of July 31, covering the June and July purchases. Corssen Sr related that he came across one item which he could not identify He asked Algerio about it, and Algerio told him that it was fr an amplifier which he had ordered for himself Algerio also acknowledged that he had not paid the bill yet Algerio told Corssen Sr. that he could lnot find the (internal) bill, saying that he would look for it and pay it right away Respondent introduced in to evidence the corre- sponding internal ivoice fr Algerio (Resp Exh. I I) hbearing the date of July 5, which establishes the bill was paid However, the date f actual payment is rnot indicated, though it is clear on this record it was not paid until after August 15, as I credit Corssen's testimony in that regard Al- though Respondent has conceded that the above incident had nothing di- rectly to do with Algerio's subsequent discharge, the incident is advanced by Respondent as supportive of Corssen's bases to subsequently question the more seriously iewed activities of Algerio in the running of the parts department, which it contends also came to light only later. General Counsel established that President Corssen had issued no warning to Al- gerio in regard to the failure to pay the SAR bill timely or otherwise. However, President Corssen testified that this was the first such incident which had come to his attention; and Algerio, on rebuttal, acknowledged that there was disappointment on Corssen's part that he had not gotten the bill right away. Nonetheless, Corssen Sr. candidly related that he did not conclude or suspect from this incident that Algerio was not an honest employee - RAYCOR CO. 581 Benson also essentially corroborated President Corssen as to the handling of internal invoices on employee pur- chases. Thus, Benson testified that the procedure for an employee purchase was that Algerio would prepare an internal invoice in duplicate. The latter would normally be passed on with the cash, marked paid by her, and an invoice then returned to the employee to serve as a re- ceipt with an invoice copy passed on for Corssen's review, which he then retained on file. Benson thus fur- ther confirmed that Corssen would not normally know that an employee purchased a part until it was paid for. However, according to Benson (and contray to Algerio), if an employee had a charge that was to be held for more than a week or two, it was handled otherwise. Benson thus testified that, when she first started in May 1974 (2 years before Algerio) she was instructed by Corssen Sr. that employees had to get permission to make large orders through the shop; that usually the parts manager would pass charges on with cash when employees got paid; and that, if the charge was going to be held longer, Corssen wanted to know about it, as they would have to have permission. Thus, Benson essentially confirmed President Corssen in also testifying that, if an employee had a charge that was to be held for more than a week or two, the (internal) invoice (unpaid) was, passed on to her and retained in a holder on her desk as a reminder to check with Algerio to obtain payment at the time it was promised to be paid.46 The essential procedural dispute on general procedures is thus observed to be that Algerio contended that he had received no instruction to pass up the internal in- voices in regard to unpaid employee bills, while Corssen, with supportive testimony of Benson, contended that he had, and that it was the practice. At this juncture I would only note in passing that Benson also testified that, if certain Stone internal invoices in regard to repair work performed by "Emil Nass" had been passed up to her unpaid, she would have promptly brought it to Presi- dent Corssen's attention. Stone's Repair Work In and Out of the Shop Respondent regularly permits its employees to perform personal work on cars on their own time at its premises. Thus, Stone, in early summer after first securing Schmal's permission, brought his brother's car on the premises to work on a transmission. Upon breaking the transmission down, he discovered there were defective parts, and requested permission from Corssen Sr. for the car to remain on the premises while awaiting delivery of the required replacement parts which were not pur- chased through Respondent nor locally obtainable. Per- mission was granted. Other employees engaged in similar actions. 46 Benson testified credibly that she herself had purchased tires (over $100) in just the prior Christmas (1976). and had obtained Corssen's per- mission to carry it over the holidays. She also notified Schmal that such permission had been given. (Benson made lump sum payment after 3 to 4 weeks for her large purchase.) On rebuttal Algerio relates that he was in charge of receiving the money from the employee on a parts purchase, and that he had only passed employee bills (internal invoices) up one time in regard to a Stadnyck purchase. There is no question that most employ- ee purchases were in small amounts and paid promptly. In the interim Stone had agreed to do some engine repair work for a neighbor apparently at cost, and as it developed the engine required essentially an overhaul.4 7 The payment arrangement Stone had made with the neighbor was that, when the parts were repaired, the neighbor (an over-the-road truckdriver) would pay Stone. Stone did not foresee or anticipate there would be any difficulty in contacting the neighbor when the re- pairs were done, nor in collecting payment. As we shall see, Stone had miscalculated on both counts. Stone told Algerio that he wanted to have the work done and the payment arrangements he had made, and Algerio agreed to send the work out. According to Stone, Algerio sent the cylinder head out first to "Emil Nass" for repair about the third week in June.48 Stone testified that this was not a secretive request on his part. He related that, on the occasion when the cylin- der head was initially sent out to Emil Nass for the re- pairs, Schmal had asked him what it was for. Stone told Schmal it was a "Vega" head that he was sending to Emil Nass to have work done. On this record it appears no other employee had previously sent repair work out to "Emil Nass" using Raycor credit. Stone did not tell Schmal for whom the work was to be done, nor did he state clearly that he was going to have the bill charged to Respondent. He certainly did not ask Schmal's permis- sion and I am convinced, in any event, that he did not receive Schmal's permission. 49 The Vega cylinder head was repaired by "Emil Nass" and returned on June 28 accompanied by a delivery or packing invoice from "Emil Nass" in the amount of $82.93. Algerio, who remembered receiving the head, did not sign for the delivery, contrary to his usual custom unless he was out. However, according to Al- gerio, he did put Stone's name on the delivery invoice. It is Algerio's testimony also that he did generate an inter- nal invoice for this repair service in Stone's name, though he asserts the same was not available and thus not produced at the hearing. The head was at all times kept in the parts room under Algerio's control. Stone did not pay for that work on the following Friday, July 1, nor on the following Friday, July 8. Stone also recalled that it was sometime in July that Corssen Sr. came up to Stone and asked him what the 47 The work required on the engine was major, viz, required repair service on the cylinder head (new bearings, valve seats cut, disassembling and reassembling), purchase of a new gasket, and repair service to the engine short block (new rings, sleeves, rod bearings, and crank bearings). 4' Algerio's testimony as to when the cylinder head and short block were initially sent out and returned was not consistent with Stone's recol- lections, and Algerio's rebuttal testimony relative thereto was at best con- fused and at worst contradictory. I thus credit Algerio in such matters only to the extent readily appearing consistent with the credited testinmo- ny of Stone, that of other witnesses, and available documentary evidence. 49 Schmal testified that some employees did ask his permission to order parts, which he granted, though he also conceded that some em- ployees may have gone directly to Algerio without his knowledge. As far as Schmal was concerned, however, Stone should have first asked his permission on such a costly item as a simple matter of courtesy if for no other reason. I am wholly convinced Schmal did not authorize Stone's use of Respondent's credit in this matter, nor did he have clear cause to even conclude such was being done at the time. On the other hand, it appears there was no established rule that Stone may be regarded as having broken in requesting Algerio to have this work sent out or in get- ting Algerio's approval RAYCOR CO. 581 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD head was doing in the parts room. Stone told Corssen that the work on the head had been done for a friend of his who had not given him any money toward it, and that he was not going to give the head to the friend until the latter gave Stone the money. Corssen Sr. replied, "All right," and just walked away. (Corssen Sr. did not specifically deny this conversation.) It thus appears that it was on the basis of this conversation that Stone be- lieved that Corssen Sr. was made aware that money was due Raycor (at least then on the head, $82.91) on the ra- tionale that, if the money were due Stone, he could have stored the part at his own house. 0 However, in any event, Stone acknowledged that he was not sure that he and Corssen Sr. had talked about the engine block, and I find that they had not, as I am convinced by the evi- dence that the short block had not as of that time even been sent out to Emil Nass. Stone significantly also ac- knowledged that Corssen Sr. did not talk to him about the matter again; that is, prior to Stone's discharge. (Al- gerio's apparently intended corroboration shortly before the discharge is not credited.) Corssen Sr. did not specifi- cally deny this conversation. However, Corssen Sr. did deny that he was previously aware that the head and short block were repaired on Raycor's credit. In point of fact the engine block was not sent out for repairs prior to the return of the repaired cylinder head as Algerio had testified. Rather, I find that the block was sent out as Stone recalled, about 17 days prior to its return. As the record clearly reveals that the engine block was initially returned on July 29, Stone's recollec- tion would place the engine block as being sent out to Emil Nass for the repairs in mid-July, or about July 12, thus well after the cylinder head's return on June 28, which is wholly compatible with an earlier occurrence of the Stone-Corssen Sr. above conversation. Stone testified that the largest personal order he had previously placed was $20 to $30 and acknowledged that the eventual combined cost for the repair of the head and block and the gasket charge was much more sub- stantial. Stone also acknowledged that he had never asked permission to send the engine block out using the company name or credit, though he testified also that he was never told that he needed permission from manage- ment to have the engine parts worked on for personal business. He asserts that he never tried to keep the engine block concealed from Respondent. Nonetheless, it has been observed that the cost of the head billed by Nass to Respondent for Stone's requested work was not paid for promptly by Stone on the next Friday, July 1, nor by the following Friday, July 8; and significantly Stone also acknowledged that Algerio had already un- successfully asked him a couple of times in July for a payment. Stone testified that, when the engine block came in re- paired (on July 29, a Friday), he and Labriola had taken it off the truck, and that he had brought it home that same night. (Stone's name appears on this delivery in- voice also, again put on there by Algerio. Again Algerio bO This inference is, of course, not an exclusive one. Corseen had al- ready authorized Stone to keep his brother's car on the premises if kept out of the way. The cylinder head was always kept out of the way on a lower shelf in the parts room. did not sign for delivery.) The remaining work was to be done at the neighbor's premises. However, Stone was unable to deliver the engine block that evening to the neighbor, who was apparently on the road and not there. When Stone brought the block to his own home, he dis- covered there was a lip raised (on a sleeving), which would prevent the head from seating properly. Stone brought the block in to the shop again (probably on the next workday, August 1), and the block was immediately returned to Emil Nass to have the necessary correction effected, which was apparently done promptly. This time when the block came in Stone did not immediately bring it to the neighbor's premises, but did notify him that the parts were now all in. The neighbor agreed to give Stone the money. However, the next time Stone went there the neighbor was again not there. In succeeding days and weeks contact was not made, though messages were repeatedly left with the neighbor's wife, eventually to the point that Stone was forced to finally accept that he was being put off and stalled, which Algerio earlier concluded and confirms. Stone also acknowledged that on several occasions in August Algerio continued to in- quire of him about payment, which continued to not be forthcoming. I credit Stone as to the foregoing. There is major conflict in the evidence as to what followed. It was Algerio's testimony that, after the return of the repaired engine (short block), he had generated a second internal invoice, dated August 3, and that he consolidated an earlier prepared (June 28) internal invoice with it. However, Algerio acknowledged that he had never done that before, and his advanced reason for doing so on this occasion, viz, maybe the first one was shabby, was simply wholly unconvincing, and is not credited. Stone's explanation for the subsequent removal of the engine from the premises was as follows: Stone testified that, when Nass brought the engine block back the second time, he kept the block on the premises in the shop because the neighbor had not given him any money toward it. Stone recalled that it was the day before they were to have a BMW delegate visit the shop and that, while they were cleaning up the shop, Corssen Jr. asked him what the block was doing there. (Stone otherwise recalled this incident as occurring before he signed a card with the Union, thus pre-August 9.) Stone related that he told Corssen Jr., "We sent the block out and it came back," but the guy had not given him any payment on it, and that he was leaving it there until it was paid. According to Stone, Corssen Jr. told him to remove it because they were cleaning up the shop for the delegate who was arriving the next day. Stone told Corssen Jr. there was no money received; and Corssen, Jr. replied that he was not to worry about it, but to take it home, and, when Stone got the money, to pay for it. Stone then removed the engine. Algerio offers a supportive inde- pendent conversation with Corssen Jr., but to the effect that it was Algerio who was requiring Stone to keep it on the premises. Corssen Jr. did not deny issuing clean up instructions at this time, though he only recalled issu- ing them to the cleaners. Corssen Jr. did deny knowl- edge of the engine repair and the pledge of Raycor credit on the engine until told about it after the dis- charges. Respondent established that there were other RAYCOR CO. 583 clear instances of discrepancies in Stone's and Algerio's testimony relative to company knowledge of Stone's re- sponsibility on the pledge of Raycor credit. Thus, in a prior affidavit presented to the Region during the investi- gation of the charge, Stone therein had related that, when it came in, he had paid Corssen Sr. $290 of the $500 it cost; that sometime in June the cylinder head was sitting in the parts department; that Corssen Jr. asked Stone what it was doing there; and that Stone told Cors- sen Jr. that he was keeping it there as collateral "until I got the other money." (Emphasis supplied.) At the hear- ing Stone admitted the above statements were incorrect in that the sum of $290 was not paid until after he was discharged (discussed infra), and asserts it was the block and not the head which was the subject of a Corssen Jr. conversation. (Corssen Jr. essentially has denied such conversation). Under the circumstances of these contra- dictions in this area, I find that Stone's testimony suffers major infirmities to a degree not cured by Algerio's sup- port, whose own supportive statement I might add has seemingly incredibly contained similar inaccuracies which he also has subsequently retracted. Accordingly, I shall place no reliance therein. I further am convinced and I find the contrary to be true that Corssen Jr. was not aware of the pledge of Raycor's credit on such engine work of Stone at that time. Schmal testified that he also was not aware of such use of Raycor's credit, nor even aware that this engine block was in the shop. Schmal related that Raycor sends engine blocks out for repair, and there are many engine blocks standing around. Schmal testified additionally that he knew there was a whole engine in the shop from Pet- tinato's van, because Pettinato had told him about it, and he knew that Stone's transmission was there, because Stone had asked him if he could work on it. However, Schmal testified, and, I find, convincingly so, that he was not aware of Stone's engine block being in the shop, nor that it had gone out for repair, as Stone had not asked him about it, adding, "if you don't look for it, you don't see it. 5 Respondent's Awareness of Algerio's Handling of Stone's Internal Invoices As noted earlier, Michael Corssen was working with Algerio in the parts room in August."5 He testified that it was one day in late August, I find probably Friday, August 26,53 while working up front in the parts room, sl It is noted that, when the engine was brought in and initially re- turned, it was there only a day. Although I am convinced the block was in the shop after its final repair for at least several days (essentially con- firmed by Gourlay), I nonetheless credit Schmal's testimony that he was not thereby made aware that an engine block had been sent out by Al- gerio for Stone and repaired on Raycor's credit. 52 Michael Corssen testified that he had no discussions with anyone about the Union, and that he had neither attended nor had he heard about the August I I group employee meeting at which the Union was discussed. There is no evidence to the contrary. I credit Michael Corssen that neither the employees nor Raycor management had involved him in discussions about the Union. "3 The record is unclear as to the precise day of this incident, though it is clear beyond any question that the incident had occurred between Friday. August 26, and Monday, August 29. It was Michael Corssen's recollection that Algerio was working on that day, which would indicate the occurrence was on either that Friday or Monday as Algerio did not that he had received a routine call from a customer, Ja- cobsen's Garage, inquiring as to what was the amount of their outstanding bill. In that regard Michael Corssen testified that outstand- ing bills of customers were regularly kept on a clipboard, which was itself kept in the parts room in either of two places, either hanging on a shelf (its usual place) or in a desk drawer, which had restricted visible access, but where from time to time it could also be found. On this occasion he looked for the clipboard, eventually locating it in the desk drawer. He estimated that there were about 12 invoices on the clipboard at this time. In looking through the invoices for the Jacobsen Garage invoice, he came across two internal invoices (actually an original and copy of one internal invoice), which were folded over and located about three-fourths of the way down amongst the other invoices on the clipboard. Corssen tes- tified that, on opening the folded invoices, he observed essentially that the invoices comprised one internal in- voice made out to Stone, and that the amount was high; and he noted also at the time that they were the only two such invoices folded in that manner. Michael Cors- sen related that he left the clipboard as he found it. However, later that same day, when he had occasion to see his father, he told him about the high bills (in- voices). 54 According to Michael Corssen, his father re- plied at that time he was glad that he (Michael Corssen) had brought them to his attention because he (Corssen Sr.) did not know about them. Michael Corssen placed the time of this conversation with his father as about 3-4 work on the weekend. However, Michael Corssen recalled otherwise only generally that Algerio was apparently somewhere else in the back when he took the call. Corssen Sr recalled that it was a few days after this matter was brought to his attention by his son before he was able to reach Rosenberg who was on vacation. Rosenberg had started his vaca- tion on August 26, and the record has convincingly established that Cors- sen Sr. was able to establish direct contact with Rosenberg on August 30, which would appear to rule out Monday and seem to suggest his son's report was made to him on that Friday, or Saturday, August 27. That it might have been Saturday is not without some support, as Schmal seemed to recall talking to Corssen about this matter later on a Sunday, albeit unsurely; and Benson compatibly related being told later by Cors- sen, Sr. that Michael Corssen had found the certain invoices in question over the weekend. However, on balance, in view of Michael Corssen's recollections that Algerio was working that day and that the shop was busy, I thus conclude and find that the incident more probably occurred on Friday, August 26 s4 Michael Corssen explains that he did so at that time because the bills were high and because they normally did not give that much credit to employees. General Counsel established on cross-examination of Mi- chael Corssen that he did not actually know if there was an established rule as to how high an employee's credit could go, nor if there was a rule that an employee had to ask permission if he went over a certain amount On the other hand, Michael Corssen also testified that he had never seen an employee's bill that went over $100, and the gravamen of Algerio's testimony would confirm such was rare. On cross-examination Michael Corssen further acknowledged that Algerio knew that he had access to the clipboard; that he would have occasion to look at the clipboard as part of his job: and that Algerio had never told him not to look in the desk or at the clipboard. However, Michael Corssen also significantly tes- tified that he had had prior occasion to look through this same clipboard some 5 to 10 times, but had not previously seen these folder invoices. I credit Michael Corssen as to his observations on the prior condition of the clipboard and as to the circumstances of his discovery of the in- voices. I further conclude and find it quite feasible that Michael Corssen, upon coming across such invoices under the circumstances he has de- scribed, would have brought it to his father's attention privately in the manner he has related RAYCOR Co. 583 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD p.m., recalling also that the shop was still very busy. He testified that it was later that day after work hours were over he accompanied his father back to the parts room, located the clipboard in the same place, and showed his father the Stone internal invoice(s) dated August 3 (in evidence) which referenced certain motor repair work was done by "Emil Nass" in the (total) amount of $468.84; then Michael Corssen left for the day. I credit Michael Corssen in his above account of the incidents occurring on Friday, August 26.55 Corssen Sr. sometime later spoke with Schmal about the matter. At that time they looked at the Stone (con- solidated) internal invoice which is dated August 3. (It first lists a rebuilding of an engine at a cost of $385.91 with reference only to "Nass" invoice #9865, secondly lists a (cylinder head job in the amount of $82.93), and finally shows the total amount due as $468.84.) They then went to the front office and retrieved and reviewed the pertinent "Emil Nass" statement invoices (in evi- dence) from which they observed that "Emil Nass" in- voice #9865 (referenced on the August 3 internal in- voice) bears the delivery date of July 29, covering a 1972 Vega engine rebuilding (re: short block), with a corre- sponding amount of $385.91; and that the cylinder head repair and its cost does not appear thereon. From their review of "Emil Nass" invoice #2307 (unreferenced by Stone's internal invoice), they observed that the above secondly listed cylinder head work of comparable charge $82.93 had a much earlier delivery date viz., June 28. It is reasonably inferable otherwise from this record, and I find, that they reviewed also the "Emil Nass" delivery invoices, and thus would have also been immediately aware that each of the same bore the name of Stone, with no showing of delivery acceptance by Algerio. Schmal confirms the review was made; and his testi- mony is that thereafter they decided that they had to do something about it, as it involved quite a bit of money, and that they decided that night to let Algerio and Stone go. Schmal explains this was decided because Stone had used a substantial amount of their money without asking, and he felt there was a substantial chance that the bill would not be paid. Schmal acknowledged that he had not set a credit limit on employee purchases, but asserts they had trusted Algerio; and he also felt that Stone should have initially asked their permission on such a large amount, and that either Algerio or Stone should have at least reported to them that Stone was experienc- ing difficulty in making payment on such a large amount. However, on cross-examination, Schmal revealed he had apparently entertained consideration of another elemental chance, viz, that they could have gotten away without paying it at all. Thus Schmal thereupon explained that, when a delivery arrives, the bill (delivery or packing in- voice) may be signed by one who is there at the time the truck arrives. Thus, Schmal testified this bill was signed 55 President Corssen essentially corroborated Michael Corssen in testi- fying as to these matters. Thus, he testified that it was one afternoon in late August. after the election conference of August 25 had been held. that his son Michael had come up to him and asked him, "Dad do you know about two invoices on the clipboard, a large amount of money over 400?"; that he had replied "No";: and that his son had also men- tioned that he had been looking for a garage bill at the time he came upon them. only by Ray Stone, and it was thus possible that the bill could have gone through the front office without any- body knowing it. Schmal testified that the secretary would look at its being signed as meaning only that we received it.56 Nonetheless, Schmal testified, with the election coming up, there was still a question whether they could do this. Corssen Sr. thus corroborates Schmal that he and Schmal felt the charges were bad enough to fire these employees, but that they also knew the election was coming up and did not know the laws; and that they were in that regard confused as to what to do. Schmal corroborated Corssen Sr. with specific recollection of the Board's posted notice in regard to prohibited threats and discharges. In any event, Corssen Sr.'s action, as might now be regarded as customary, was in fact, to at- tempt to contact the vacationing Rosenberg. On success- fully doing so on August 30, he reported to Rosenberg what they had found on the invoices. Rosenberg told Corssen he would call the Board's Region and find out about their right to discharge. Rosenberg testified that on August 26, he left on vaca- tion to South Carolina, and did not return until Saturday, September 3. According to Rosenberg, in the interim he either checked with his office on Tuesday, August 30, and was advised that Corssen Sr. had called and wanted Rosenberg to call him, or Corssen Sr. obtained a number where he could be reached from his office and contacted Rosenberg. In any event, I credit Rosenberg as to the date he called Corssen Sr. (through information), as he was convincingly sure of it because he had his secretary check the long-distance billing date on it. Rosenberg corroborated Corssen Sr. that in their ini- tial phone call Corssen Sr. told Rosenberg that he had found several invoices amounting to over $400 in the parts department drawer that had never been put through the company books, that they were not billed according to the normal course of billing by the parts de- partment, that they were for parts and work done for employee Ray Stone-one for work dating back to June, that no sales invoice was ever prepared, that for 2 months nobody in the firm was aware of it, that Corssen Sr. considered it a violation of a code of ethics, and that he suspected collusion on the part of Algerio and Stone in trying to deceive the Company in view of not billing them out in the normal procedure. (Rosenberg testified that he stated to Corssen it was not only deception but sounded like embezzlement to him, and that it warranted 16 Benson testified that, if an employee purchased a part and an inter- Ial invoice were not passed on to her, there was no way she would know the part purchase was by an employee, and that there is no indication on the delivery or packing slip itself as to who might have purchased the part. On the other hand, Benson testified that, had she seen the "Nass" delivery or packing invoice(s) with Stone's name appearing on it (them) she would have brought that to the attention of Corssen Sr. because of the amount. Thus, Schmal's concern over a possibility that the Stone charge(s) might not have been brought to the attention of Raycor at all (which enters the asserted risk of going unpaid), at least from Benson's vantage point, was seemingly unfounded However, such presumes her notice, not an insignificant questionable consideration, as Benson also tes- tified that in her comparision (matching) of the delivery and statement invoices she would generally be interested only in comparing the invoice numbers and amounts with the billing statement Significant was Cors- sen's additional observation in this area that Benson would properly assume that Algerio had taken care of such a matter, as Algerio admitted. RAYCOR CO. 585 further investigation.) According to Rosenberg, Corssen stated at that time that he was very disturbed about it, that he was considering firing these two men for this, but with the vote (election) coming up he did not know if he had the right to do so. Rosenberg suggested (and Cors- sen then agreed) that Rosenberg contact the Regional Office for information on the subject, which Rosenberg proceeded to do. Rosenberg related that he contacted the Board agent who had handled the representation matter, and that he described the above circumstances and stated that he wanted to know what their rights to discharge were since the election was forthcoming and they were pres- ently involved with the Union at the time. It was stipu- lated by the parties that the aforesaid Board agent of the Regional Office informed Rosenberg that Respondent had the right to fire an employee for just cause, but that it could not fire an employee for union membership or activity. Rosenberg called Corssen Sr. back and reported the information he had obtained. According to Rosenberg, not being an attorney, he did not advise Corssen whether there was good cause to discharge the men, but rather told Corssen that it was up to him and Schmal to make that decision. However, Rosenberg otherwise admitted he told President Corssen that Corssen could fire the men without any repercussions. Rosenberg testified fur- ther that he personally did not know the results of Ray- cor's decision in this matter until he returned from vaca- tion. Corssen Sr. recalled that Algerio was busy that even- ing until after 5 p.m. President Corssen became busy on another matter. In the interim, Algerio punched out, and Corssen Sr. then instructed Algerio to punch back on the clock and wait for him. After finishing the other busi- ness, President Corssen spoke to Algerio and told Al- gerio that he had to let Algerio go for ordering too many parts and covering up Ray Stone's bills or charges. Corssen testified that he called Schmal up that evening and informed him that he had terminated Algerio and then instructed Schmal that he should terminate Ray Stone the next day5 7 for charging against the Company without asking. It is noted at this juncture that the assert- ed reasons for discharging Algerio did not include an un- authorized extension of credit to Stone, but rather his covering up when timely payment by Stone was not forthcoming. Ray Stone's Discharge Preliminarily it is observed that Stone related that Al- gerio came by his house on August 30 and told Stone that Corssen Sr. had called him into the office and told Algerio that he had to let him go, that he was overor- dering parts, and that he had extended credit too easily. Stone related that he was surprised because he thought 51 It is to be noted that the next day was Wednsesday, August 31, Corssen Sr.'s regular day off. Corssen Sr. thus advances two reasons why he did not also personally terminate Stone; viz, first, Schmal ran the shop and Stone was thus under Schmal, and secondly, because Wednesday was his own day off, and he had not wanted to come into work solely for the purpose of firing Stone. No explanation was offered why they were not fired on the same day. he had the engine matter straightened out with Crossen Sr. Notably, Stone did not relate that Algerio reported to him that he had been told the principal reason was that business was slow. Stone testified that he went to work the next day, Wednesday, August 31, and worked the entire day; and that about 5:15 p.m., Ray Corssen Jr. told Stone that Schmal wanted to see him up front, and he went to Schmal's office. Schmal told Stone that Corssen Sr. had called Schmal up and stated that he was angry with Stone because of the block arrangement, that it was not paid for; and Schmal also told Stone that things were slow and they were going to let him go. Stone related that he was shocked at the time, and that he then told Schmal he had informed Corssen Sr. what happened about the block. According to Stone, Schmal replied that Corssen Sr. had told Schmal that he did not know any- thing about it; and Schmal then said, "Well, all I could tell you is, why don't you come in tomorrow and talk to Ray, Sr. and maybe you can get your job back." Schmal's version was that on the evening of August 31 he sent Corssen Jr. to notify Stone he was to come to Schmal's office. When Stone arrived, Schmal told him that they had found the papers, and that, the way it looks, because of the circumstances, they could not keep him anymore; they had to terminate him. With some hesitation, Schmal added that Stone said he felt sorry he did ask, and on cross-examination related that Stone had said, "Sorry, I should have told you." Schmal also thought that Stone said he saw his (Schmal's) point. On rebuttal Stone denied that Schmal had mentioned finding some papers or talking about the invoices; and Stone testified that he had not told Schmal he was sorry he had not asked for permission, nor said that he saw Schmal's point. Stone testified in this regard that he had never received instructions from management that he had to get permission, and that he had always gone to Algerio in ordering parts, though on cross-examination conceding he generally paid for the parts the week they came in or the next week. Schmal's testimony in the above respects was in part hesitantly given, and, in con- trast, Stone's denial in these respects was more firmly given and convincing. I credit Stone that he did not make the remarks above attributed to him by Schmal. Schmal also conceded that he gave no prior warning to Stone, nor did he make any effort to seek an explana- tion from Stone.a5 Schmal testified also that he had pre- viously made up his mind that he was going to fire Stone no matter what he heard from Stone, explaining that the bills were lying there unpaid quite awhile and that they had known nothing about them. Thus, it is observed that Schmal complements Corssen's instruction that Schmal was to discharge Stone for charging against the Compa- ny without asking with observations that the bills were higher, for a long time not paid, and there were risks they would never be paid. That Schmal had justification in being concerned that the bills would not be paid 5s In contrast, General Counsel established that Schmal had given one prior warning to former employee Pettinato before Pettinato was fired for repeated lateness and absences. However, the record also reveals that Schmal had previously fired other employees for misconduct he deemed serious without any prior warning extended. RAYCOR Co. 585 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seems reasonably evidenced in the circumstances that Respondent was able to effect initial partial payment only by withholding Stone's checks, and Respondent did not obtain a final payment until October 13, some 6 weeks later. Thus, Stone related that he came in the next day (Sep- tember 1) and spoke to Corssen Sr. about 10:30-11 a.m. However, Stone did not ask Corssen for his job, but rather just told President Corssen that he came down to pick up his tools and his pay. Corssen told Stone at that time that he was going to have to sign his check over to Raycor in partial payment on the engine and cylinder head outstanding bills. According to Stone, he told Cors- sen that he had told him about the engine. (Significantly, Benson does not corroborate Stone on this point.) Ac- cording to Stone, Corssen replied nothing was ever said, and nobody posted anything. Stone asked about his tools, and Corssen Sr. replied, "We're going to keep your tools until you pay the balance." Stone testified that he has never been offered his job back. Stone explained that he had not asked for his job back on this occasion because he thought he got laid off for no legitimate reason at all. However, on cross-examina- tion Stone admitted that he was aware Raycor was re- sponsible for the bill to Nass, and that, when he used the Corssen billing under his name, he in turn was responsi- ble. Stone otherwise asserts that the Company must have earlier known the amount due when they got the bills, and that the Company never told him that he had to get the money in by a certain day. However, fundamentally significant on even this consideration was his other testi- mony that he knew he owed for the bill, but that he did not have the money to take out of his pocket and give and that was what it came down to. Stone testified otherwise that he personally did noth- ing to conceal his engine repair arrangement. In that re- spect, Stone acknowledged that he did not talk to Al- gerio when the block came in the first time, but that Al- gerio was aware it had arrived as he was when the block came back the second time; that he was not sure about the invoice from Nass; that he did not know if Algerio had made out an internal invoice because he never saw it; and that he did have occasion to have Algerio check the clipboard for his current internal invoices (on brake pads and cylinders), and did not see the August 3 invoice on the engine and head there at that time though it could have been there. Stone related that he and Algerio then contacted Elliott and informed him they had been dis- charged. According to Stone, Elliott told them not to do anything; that they would have a meeting. The Union Meeting on the Discharges After the discharges of Algerio and Stone were re- ported to Elliott, according to Elliott, a second meeting with employees was then arranged for September 2 (Friday) to determine what action should be taken. The meeting was held at Dell's Bar. Employees present were Algerio, Stone, Labriola, and Falabella. Elliott initially related on direct examination that the employees told him that they did not know why they were fired. How- ever, on cross-examination Elliott related that Algerio told him that Respondent said Algerio was fired because he had overordered parts, and that Stone was fired over some outstanding bill he had. It was decided that Elliott would file a charge; and that after the holiday they would go ask Respondent to reinstate employees Algerio and Stone. Significantly, Elliott made no reference to any report of a conversation Labriola has testified that he had had earlier at the end of work that very day with President Corssen. Thus, Labriola testified that on the Friday (September 2) before Labor Day (September 5) Schmal had already gone, and he was in the shop getting ready to wash up when Ray Corssen Sr. came up to him and said, "Russ, now that we got rid of the unionistic troublemakers let's have a beer." Labriola declined, saying that he had to go home.59 Labriola confirmed that he attended the meet- ing held on Friday, September 2. Seemingly incredulous- ly, he did not report the conversation at the union meet- ing, as Labriola related he did not report President Cors- sen's remarks to Algerio and Stone until he returned to work on the day after Labor Day, Tuesday, September 6, though the clear purpose of the aforesaid meeting was discussion of the discharges of these employees. Falabella, who testified next, confirmed a meeting of the above employee which he also thought was at Dell's Bar but was not sure. He confirms that the meeting lasted about an hour; that the employees talked about the recent terminations of Algerio and Stone; that Elliott told the employees that he would go down to the shop and demand that Algerio and Stone be reinstated; and that Elliott said that, if they were not reinstated, they would strike. Falabella confirmed all the employees, in- cluding Labriola, agreed. (Respondent established that in a prior statement Falabella had said, "All present at the meeting agreed to go on strike.") Falabella also testified initially that it was some time after Stone was fired and before Labor Day that Labriola had reported to him that Ray Corssen, Sr. came to him and said, "Now that we have gotten rid of the unionistic troublemakers let's have a beer." 6° However, on reflection, Falabella recalled the report from Labriola as occurring either on that Friday, September 2, or the day after Labor Day when they came back to work from the weekend, Tuesday, Septem- ber 6; thereafter, on further reflection, he related that Labriola's report had to be after that Friday weekend. Algerio also recalled the men met on Friday, Septem- ber 2, relating that the meeting on Friday must have been at Dell's Bar, and present must have been Russ La- briola, Paul Falabella, Ray Stone, and himself. They talked about it not being fair that Algerio and Stone were fired and about what they should do. On cross-ex- amination Algerio testified significantly that he did not recall anyone bringing up anything unusual, thus implied- ly confirming also that there was no report from La- briola in the meeting of President Corssen's remark to him. Thus, Algerio also related that it must have been b9 Labriola testified without contradiction that it was just about every weekend that President Corssen would invite employees to get together at the end of the last workday and have a beer. 6n Respondent would have noted the similarity of Falabella's recollec- tlion at the hearing with that of Labriola, and the dissimilarity of his hear- ing testimony with a prior statement thereon given by Falabella on Octo- ber 14. I have done so, and do not find such similarity and variance to be of controlling significance in themselves. RAYCOR CO. 587 after they were out on strike that Labriola had told them that he was offered a beer now that they had gotten rid of the union people, union troublemakers, union agita- tors, whatever. (Algerio also could not recall whether the word agitator or troublemaker was used, but remem- bered there was a reference to union, and the last half had something to do with trouble.) Stone recalled the union meeting, confirmed the above employees were in attendance, and related that Elliott told the employees that the Union was trying to get in the Company, that the Company was fighting it, and that the Company had discharged Algerio and Stone for ille- gitimate reasons. He also confirmed that Elliott told the employees that he was going to go to the shop on Tues- day morning (after the Labor Day holiday) and ask the Company to reinstate Algerio and Stone; and, if the Company refused, he was going to call a strike, and they would picket. Stone's testimony confirmed also that La- briola, at the meeting, was mad over the fact that Al- gerio and Stone had been laid off and thought they all should go out on strike. Stone was initially not sure what night the meeting was held. Stone (alone) then related that he did not think the meeting was on Friday as La- briola and the others placed it because he recalled that he was at home on that Friday when Labriola came to his house and told him that Corssen Sr. had come up to him in the shop and told Labriola to have a beer, that they had gotten rid of the union agitators, or unionistic agitators, though Stone also was not really sure what words Labriola had exactly used.6 ' However, it will be recalled that Labriola did not place the report made to Stone as being made at Stone's home, but rather not until Labriola returned to work on September 6. Analysis, Ultimate Findings, and Conclusions It is General Counsel's contention that no matter what are the inconsistencies and contradictions in the testimo- ny of the various witnesses, if Labriola's testimony is credited that President Corssen made the statement that they had gotten rid of the union (or unionistic) agitators or troublemakers, it is reasonably established thereby that antiunion motivation was an operative reason in the dis- charge of both Algerio and Stone. General Counsel then points out that President Corssen has not specifically denied making such statement, and my review of the record would appear to support this observation, though I hasten to add Corssen Sr. has unequivocably more broadly denied discharging either employee for engaging in union activity, but rather did so for the presented rea- sons. Despite the lack of such a specific denial by Corssen Sr., there are simply too many inconsistencies and/or im- probabilities in the entire record bearing on this specific matter for me to be convinced by General Counsel's ar- gument in this respect. To begin with, there is an initial inherent improbability that Corssen Sr., after having only recently unquestionably exhibited grave concern over his 6' In a prior affidavit Stone gave on September 13. he had testified: "On September 2 1977, Russ Labriola came over to my house after he finished work and told me that as he was leaving Ray had bought beer" Ray handed him a beer and said. "Have a drink. We can relax now that we got rid of those union agitators." prospective discharges of these men, as evidenced by Rosenberg's inquiry made of the Region, would then cavalierly make such a pronouncement to Labriola. There is a second equally significant improbability, it seems to me, that, had such a remark been made on Friday at the end of work to Labriola as he recalls, he would not have raised it at the union meeting which El- liott and all but Stone had reported was held on Friday, September 2. I do not overlook the evidentiary thrust of varying but confirming reports by Stone, Algerio, and Falabella that Labriola later made a report on such a conversation to them, which under other circumstances would be supportive of witness Labriola by tending to prove that the matter was not one of recent fabrication by Labriola. However, the conclusion appears as one in- escapable to me that the versions of Algerio and Fala- bella do not reduce the improbability that Labriola would not have brought it up in the meeting that same evening; and Stone's version, in seemingly escaping the above second improbability only by recalling the union meeting as being held on Thursday and a report on the statement delivered at his home, does so at the eviden- tiary price of disagreement with all the other witnesses' seeming recollections that the meeting was held on Friday, and is itself without any corroboration by La- briola of such a visit to Stone's home, inasmuch as La- briola had recalled it reported at another time and place. Additionally, there have been other instances where I have found Labriola's testimony not convincing in his recollection of what others said, particularly those in- volving readily discerned instances of union or antiunion embellishment. I am thus not convinced by the weight of the evidence that President Corssen in either substance or effect told Labriola to have a beer now that they had gotten rid of the union (or unionistic) agitators or trou- blemakers. Nor do I find that the weight of the evidence warrants a finding that either Algerio or Stone was fired for their union activity rather than for the reasons ad- vanced by Respondent: viz, in Algerio's case for overor- dering parts and because Respondent concluded there was a coverup in evidence of the large extension of credit to Stone; and in Stone's instance for use of sub- stantial credit of Respondent without asking and for fail- ure to make payment on time without permission. General Counsel's evidence shows that both Algerio and Stone were active union adherents, and I have been persuaded that prior to their discharge Respondent had concluded that both Algerio and Stone were probably for the Union. While, for reasons earlier explicated, I have not found strong 8(a)(1) violations alleged, e.g., threats of plant closure, etc., nonetheless, I have found other instances of 8(a)(1) violations sufficient, in my view, to indicate that a degree of union animus existed. Thus, it seems to me General Counsel has made out a prima facie case of the discriminatory discharge of Al- gerio and Stone absent a showing of economic or other lawful justification. Even in that respect, clearly a dis- charge may be an unfair labor practice if an unlawful motive is shown to have played any part in the manage- rial decision, The General Tire of Miami Beach, et al. v. N.L.R.B., 332 F.2d 58, 60 (5th Cir. 1964). However, this does not alter the basic principle (which needs no cita- RAYCOR CO. 587 _ 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of authority) that an employer may discharge for good reason, for bad reason, or no reason at all, pro- vided the reason is not discriminatory. I would only note further that, even if the case had presented stronger mo- tivational circumstances, the Board has had occasion to note in cases presenting appropriate circumstances, cf. Klate Holt Company, 161 NLRB 1606, 1612 (1966), that: The mere fact that an employer may desire to ter- minate an employee because he engages in unwel- come concerted activities does not, of itself, estab- lish the unlawfulness of a subsequent discharge. If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discrimi- natory and therefore unlawful. Here Respondent advances as the reason for the dis- charge of Algerio as his overordering of parts and his subsequently discovered conduct viewed as a coverup of a substantial pledge of credit by employee Stone. That Algerio was overordering parts, I have concluded, is convincingly evidenced of record despite a concurrent increase of sales. This had been an ongoing concern of Raycor management for several months. Nor can I con- clude that Respondent's asserted conclusion that Algerio had engaged in a coverup is one shown to be unfounded, suspect, or pretextual on this record, given, inter alia, the established circumstances: the fact that these substantial bills were not paid timely; the lack of convincing evi- dence of prior awareness by Corssen Sr. or Schmal of the high amount of Raycor credit pledged on Stone's "Emil Nass" repair services, particularly in comparison with prior plant amounts, prior pledges on parts only, and prior lack of any credit extension on repair services; the unusual circumstances of Michael Corssen's finding of the internal invoice; the subsequently observed failure of both "Nass" delivery invoices to show a delivery re- ceipt by Algerio, as would be regarded as customary; the lack of existence of an individual internal invoice for both "Nass" billings, or stated another way, the consoli- dation of invoices, never before done in this fashion; the holding even then of the internal consolidated invoice, despite it being long past due and forwardable under es- tablished past plant practice in accordance with the credible testimony of not only Corssen but Benson (an individual clearly not antagonistic to Stone); the nature of the consolidated internal invoice itself indicative (erro- neously) of a later date of purchase; the failure of either Algerio, in whom Respondent had deposited special trust in the operation of the parts department and (at least im- pliedly) in the extension of reasonable credit to employ- ees, or even Stone to bring the problem as it developed to management's attention when unforeseen difficulties in effecting payment arose; and, finally, the seeming reason- ableness of Corssen and Schmal's view of the risks of nonpayment arising from all the above circumstances. Furthermore, as indicated by Schmal's testimony of their immediate reaction that they had to do something, in my judgment Respondent would not have retained Algerio in his position in any event. Cf. Klate Holt Co., supra. Al- though I have noted Stone has raised the contention that from his vantage point he had broken no published rule that he was aware of, nonetheless, given Stone's basic in- volvement in this matter and his failure to approach Re- spondent even after the difficulty developed, and given the same above circumstances, it appears to me that his discharge is so intertwined therewith as to be inextrica- ble therefrom without a substitution of my judgment for that of Respondent's view of these circumstances. Thus, the additional fact that Stone was not discharged until the following day, being itself also otherwise explained by Respondent, is at best a suspicious circumstance only. Accordingly, I shall recommend that the 8(a)(1), (3), and (5) complaint allegations in regard to the discharge of Joseph Algerio and Raymond Stone be dismissed as being without merit. E. The Strike of September 6; and the Discharges of Russell Labriola and Paul Falabella To begin with, Labriola testified that on September 6 Rosenberg came up to Labriola at the latter's job station and told him, "Russell, I am sorry we cannot use you anymore." Labriola replied, "What is the idea, I got bills to pay, I have to work." Rosenberg then repeated, "I am sorry." According to Labriola, no other reason was given him at the time for his termination. Labriola then picked up his tools and in about 20 minutes left without attempting to wait to speak to Schmal, who (I find) had just previous to that given Labriola additional work. Rosenberg denies the above. I credit Rosenberg.6 2 Thus, on September 6 Elliott, accompanied by Oliveri and Joe Algerio, went to Respondent's premises (after earlier meeting with Falabella and Labriola). Elliott spoke to Corssen and told President Corssen that the dis- charges of Algerio and Stone were unfair, and that El- liott thought Respondent was trying to break his major- ity. Elliott testified that Corssen Sr. replied, "I fired them for a reason," but relates that Corssen Sr. did not then tell him the reason. However, Algerio contrawise recalled that, when Elliott said that he would like the employees to be reinstated and that Raycor was being unfair, Corssen had replied, "No," that Algerio would make Corssen bankrupt or run him out of business be- cause of his parts ordering, and that he could not afford to take Algerio back. According to Algerio, Elliott then said, "Well, that is your decision"; and Oliveri, who was also present, then said to employee Falabella, "All right, you can stop work now, we are going to go out on strike." Falabella thereupon left. According to Algerio, Oliveri then walked to the back of the shop and told La- briola that they were walking out. Algerio related that Labriola collected his tools, drove his car off the prem- 6z It would serve no useful purpose to delineate all the inconsistencies in Labriola's recollections in this matter. Suffice it to say that the weight of the evidence, including in substantial measure evidence emanating from General Counsel's own witnesses, has wholly convinced me that Labriola favored and urged strike action over the discharge of Algerio and Stone; had planned to engage in such strike action; and was not ter- minated by Rosenberg, but rather, in fact, did strike along with employee Falabella to enforce the Union's demands made upon Corssen that day in regard to the return of Algerio and Stone. --- - RAYCOR CO. 589 ises, and then joined them. Falabella confirms that he left with Elliott, and that Labriola came out about 10-15 minutes later. Stone arrived later. The employees then began picketing. Falabella relates that it was sometime after the picket- ing had commenced (about 1-2 hours later) that Corssen Sr. and Rosenberg came out to the picket line. Rosen- berg said to him and Labriola that, if they did not return to work, they would be fired. Falabella said that was okay with him, and recalled that neither Corssen or La- briola said anything on this occasion. Labriola's testimo- ny in this area is confusing and not helpful. However, Respondent essentially confirms Falabella's version. 63 Falabella also recalled that it was a few days later either late morning or early afternoon that he and La- briola were on the picket line (with Algerio and Stone in the area) When Corssen Sr. came up to them. Corssen Sr. had a short letter in his hand which he read to them and which they concluded was basically the same thing as Rosenberg and Corssen had said to them previously. Falabella (corroborated by Labriola) related that Corssen read to them, "You have been absent from work without excuse for 3 days. Your employment with this company is terminated unless you report for work immediately." They did not report for work. They were terminated on Respondent's employment records as of the same day, and the termination was confirmed by letter of the same date. The said letter in evidence (addressed individually to Labriola and Falabella) provided: On Tuesday, September 6th, management at this firm notified you to return to work immediately if you wished to continue your employment here. At that time you refused to listen to us but walked away instead. Again, on September 8th, you were told to immediately return to work as your absences were unexplained. You were notified on both occa- sions that failure to return to work immediately would result in termination of your employment. This letter is written to confirm that you have been terminated. The record reveals that the picketing lasted from 18 days to 3 weeks, ending on or about September 28. By that time all employees had determined that they had to s3 Rosenberg related that he and Corssen went out to the picket line, and that he spoke to Labriola and Falabella on the picket line and asked them to come back to work, as it appeared to be a foolish move on their part to walk off the job. Thus, Rosenberg related that he asked them why they had walked off the job; and that they replied they walked out in sympathy with Algerio and Stone, and that they felt Algerio and Stone should not have been fired. Rosenberg asked them if they knew why Algerio and Stone were fired. They replied yes. Rosenberg then asked the employees to explain to him why they were fired, but they de- clined. Rosenberg asked Labriola and Falabella would they tell him what they knew as he would like to tell them the truth, but they declined to do so. According to Rosenberg, he told them that he thought there was a just cause why Algerio and Stone were fired and offered to explain it to them, but they then walked away. According to Rosenberg, it was then that he said. "You know, if you don't come back to work you'll have to be considered that you are fired," or that they would be fired if they did not come back to work, and the employees responded they did not care Rosenberg testified convincingly that he was 100 percent sure that La- briola was already on the picket line and not in the shop when Rosen- berg arrived at the premises, and he specifically denied he ever told an employee of Raycor that he was fired look for work and did so. The strike was then aban- doned. It was not until October 5 that the Union request- ed its withdrawal of the petition in Case 29-RC-3927, notably well after the discharges of Labriola and Fala- bella and at a time when the same (hereinafter found un- lawful) remained unremedied. Analysis, Conclusions, and Findings Inasmuch as I have found that the discharges of Al- gerio and Stone which precipitated the strike herein were not violative of the Act, it follows that the ensuing stike action by employees Labriola and Falabella was not unfair labor practice strike activity initially. However, if I have found that Respondent might take one view of the above facts and decided that discharge action was warranted thereon, and lawfully refuse reemployment of Algerio and Stone, it seems to me that the employees were equally free (particularly with regard to the ques- tioned discharge of prominent employee spokesmen) under the Act to take a different view than Respondent of the facts as they knew them, and seek to enforce that view with strike action against Respondent. According- ly, I conclude and find that the strike of Labriola and Falabella in support of the Union's demand that their co- employees Algerio and Stone be returned to employment was lawful stike action initially economic in nature, and conduct clearly protected by the Act. Thus, I find that as of September 6 employee Labriola and Falabella were initially engaged in protected concerted activity as eco- nomic strikers. They were thus engaged in protected concerted activity when on September 6 they were threatened with termination if they did not forego their right to strike and return to work, and occupied the same status on September 8 when they were actually dis- charged for failing to abandon their lawful strike and return to work. As employees Labriola and Falabella were threatened and then fired for continuing to engage in lawful strike activity which I have found to be pro- tected concerted activity, it follows, and I find, that the threat of job loss if they did not abandon the strike was conduct violative of Section 8(a)(1); and I further find that their subsequent discharge on September 8 was vio- lative of Section 8(a)(l) and (3). 1 further find that by such unlawful conduct of Respondent the strike, at least as of September 8, was converted into an unfair labor paractice strike; and that from on and after September 8 employees Labriola and Falabella thus occupied the status as discharged unfair labor practice strikers until the strike was abandoned on or about September 28 at which time they reverted to the status of being unreme- died 8(a)(l) and (3) discharges. Cf Rental Uniform Serv- ice, 167 NLRB 190, 196-197 (1967); N.L.R.B. v. Southern Greyhound Lines. Division of Southern Greyhound Lines. Inc., 426 F.2d 1299 (5th Cir. 1970). In either event, from date of discharge they were entitled to an immediate un- conditional offer of reinstatement to their former or sub- stantially equivalent positions by Respondent with back- pay accruing from individual date of discharge until such reinstatement or offer of reinstatement was effected. Abilities and Goodwill, Inc., 241 NLRB No. 5 (1979). Falabella testified, without contradiciton, that after September 8 Respondent never asked him to come back RAYCOR CO. 589 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to work, nor did Falabella ever ask Respondent to go back to work. The record reveals that Labriola received a letter from Respondent a few months after he was dis- charged, and that he had attended a hearing in regard to unemployment benefits held on December 13. At that hearing President Corssen brought up the fact that he had recently sent Labriola a letter containing an offer of reinstatement. Labriola thereupon asserted that he was ready to go back to work. After the meeting was over Labriola asked Corssen if he should follow Corssen back to the shop to talk about his job. Corssen replied, "No. Come back at 5:00." Labriola did so, but found Corssen was not present. Present were Schmal and Sweet, the firm's new labor representative and counsel herein. La- briola asked for his backpay. Sweet responded there would be no backpay, only the job. Apparently, after making a phone call, Sweet then informed Labriola that there was an additional problem; that the only job then available was that of maintenance and cleanup, washing cars, at a rate of pay amounting to $20 less a week than he had been receiving, and which did not involve the mechanical work that he had been doing. Labriola was told that he would be considered for a mechanic helper job in the future when one opened if he performed the present cleanup job well. Labriola contacted the Region- al Office and subsequently declined the above job offer on the basis that the job being offered did not constitute a valid offer of reinstatement to his former position.64 The record reveals that Corssen Jr., following the strike, forewent his plans to continue his education at the college where he had been accepted and planned to attend in September. Instead, he worked in the back in the parts room, performing also some mechanical and cleanup work, but principally running the parts depart- ment. The record reveals also that on October 12 Re- spondent hired Melaslav Rezek as a cleaner, and that on Onctober 31 it hired Dolibar Rezek, Jr., as a class A Me- chanic. It is observed that Respondent had not replaced Mechanic Pettinator when he was terminated, but rather continued with its existing mechanical work force of Me- chanics Rezek (apparently Sr.) and Gourlay and Me- chanic Helpers Stone and Labriola. As Labriola was un- lawfully discharged after Stone was lawfully discharged, he was entitled to perform existing mechanical work. As it is obvious there was a continued requirement for me- chanical work to be done, and since it was Respondent's burden to establish that it did not include any work that Labriola was qualified to do, I am fully convinced that the job offered Labriola in December was not a valid offer of reinstatement as required to his former or sub- stantially equivalent positon, releasing subsequently hired employees if required to do so. There is no question that the meaintenance and cleanup work continued, and that N4 Respondent's letter to Labriola is not in evidence. Respondent has not defended that the offer made was one not timely pursued by La- briola, and the General Counsel has not contended that Respondent's offer as contained in the letter did not constitute a valid offer or rein- statement otherwise. The issue therefore is seen to be whether the above offer made, under the total circumstances, was an unconditional offer to reinstate Labriola. As is elucidated infra, I find that it was not I note in passing that there had been in September a nonviolent but heated con- frontation between the Unon and management over the Company's reten- tion of Stone's tools, which the Company released at that time. Respondent has unlawfully failed to offer reinstatement to Falabella. In agreement with General Counsel other- wise, I shall leave other matters respecting backpay to the compliance stage. F. The Remedial Bargaining Order Issued The General Counsel has contended in the alternative that, even if the discharges of Algerio and Stone under all the circumstances are determined to be without merit, the discharges of Labriola and Falabella necessarily had substantial impact on the remaining employees in this small bargaining unit. Thus, the General Counsel con- tends that the threat of discharge and subsequent dis- charge for engaging is strike action, coupled with other conduct of Respondent as found herein violative of Sec- tion 8(a)(l), should be concluded to have been unfair labor practices of such a flagrant nature that the conduct of fair election was thereby rendered impossible, and a remedial bargaining order is now warranted. General Counsel would argue that the bargaining order should arise from August II, the date when the unfair labor practices as found commenced, majority designation having earlier been obtained on August 9 and union demand for recognition and bargaining made on August 10. Respondent has contracontended that there was no flagrant unfair labor practices as all the discharges were for cause. Respondent contends also that all the 8(a)(1) violations occurred prior to the filing of a petition, and that under the Board's existing representation case views they are deemed to have no effect on the laboratory con- ditions necessary for the conduct of a fair election. The short answer to Respondent's latter contention is that I have found that violations of Section 8(a)(l) and (3) have occurred after the filing of the petition; and I further conclude and find that, in their involvement of threat- ened loss and actual loss of employment tenure, they are of a serious nature and have a significant and debilitating effect on the opportunity of conducting a fair election. This is particularly so in a case such as the one herein where an initially small unit is so directly and lastingly affected thereby. General Counsel's observation that with the unlawful discharge of Labriola and Falabella half of the then-exist- ing bargaining unit was directly affected does not miss the mark by much; indeed, I find not at all. Thus, with the lawful departure of Pettinato on August 12 and Po- merantz on August 25 and then Algerio and Stone on August 30 and 31, the existing unit then consisted of Me- chanic Helper Labriola, and Cleaner Falabella. Thus even without reaching any consideration of the eligibility of the Corssen brothers, the unlawful discharges of em- ployees Labriola and Falabella are observed to have dis- sipated one-thired to one-half of the unit. I find the aforesaid discharges dissipated in fact one-half of the unit. 65 6b In agreement with the parties, I have found Parts Man Algerio (as carried on Respondent's books) was included in the appropriate unit. Unlike Pomerantz, whom I find (as Respondent's records reveal) was hired full time and later elected to return to school, Michael Corssen was hired (as revealed by Respondent's records) as summer (seeimingly tem- porary) help and returned to high school. The degree (if any) to which Continued RAYCOR CO. 591 Finally, Respondent attacks the validity of the major- ity designation of the unit. Remaining contentions not previously effectively considered herein essentially stem from Labriola's testimony that he did not read the card, and that, in signing it, his understanding was it would show who was there, e.g., an attendance card, and that it would show who would vote for the Union. The latter expression would appear ambiguous. It is Respondent's contention that Labriola's designation of the Union as his bargaining representative is thus informed, and that it permeates a further question as to the validity of the cards of Pettinato and Pomerantz, who did not testify, presumably that they also may not have read their cards or similarly understood them. I do not agree for these reasons. First, I have on several occasions had occasion to note that Labriola's recollections of statements made by others was frequently faulty. I am convinced from weight of the testimony of others at that meeting that it is so again here. Certainly, none corroborated him that it was an attendance card. I am further wholly convinced that in this instance the evidence of what he did before and after, and what others report of that meeting and Labriola's conduct, removes any vestige of ambiguity in his signing the union authorization card and in fact sup- plies convincing corroboration to his testimony that he wanted the Union to represent him. The conclusion is thus warranted that Labriola's designation card be ac- cepted as further evidencing his desire that the Union act as his representative."" It seems anticlimactic to observe that on both August 10 and II the Union owned major- ity designation even without Labriola's card. 67 I thus find and conclude that General Counsel's contention that a remedial bargaining order is warranted herein is meri- torious, and I shall make provision for it hereinafter. Michael Corssen thereafter continued working is not clear. Be that as it may, in any event, the parties by agreement earlier concluded Machael Corssen was ineligible by virtue of having dissimilar interests with unit employees by virtue of being the son of Respondent's major stockholder. I see no reason to make a contrary finding on this record. Initially Cors- sen Jr., was excluded as saleman. It is clear that, following the strike, he worked essentially as a parts man running the parts department as did Al- gerio before him. On this record, however, it would appear that he also would be ineligible as a son of the major stockholder of Respondent. I so find, Dunn Brothers. Incorporated, t/a Fisher Stove Works, 235 NLRB 1032 (1978). a' Thus, Labriola, when asked by Algerio as to his interest in a union, told Algerio that he would not mind having a union in the shop; he thereafter attended union meetings, took active part in them, asked ques- tions about benefits at the first meeting, and signed a card at that meeting along with all his fellow employees in attendance. He, along with other employees, thereafter spoke daily at lunch about the Union, and he re- vealed after that first meeting that he favored the Union and wanted the Union for it offered benefits. He knew that the Union subsequently made demand for recognition on his and others' behalf; made no effort to disas- sociate from the Union; and, finally, was very vocal in urging union strike action in support of union demands that his co-employees (Algerio and Stone) be returned to employment, and participated and persevered in that strike action through threat of and actual discharge. I am thus wholly convinced Labriola's card should be counted as well as the others as to which no such infirmity is shown nor, in my judgement, properly inferable from this record. .7 There were eight employees in the unit on both August 10 when the demand was made and on August I when the unfair labor practices herein are shown to have commenced. Six (Algerio, Falabella, Labriola, Pettinato, Pomerantz, and Stone) of the eight signed the authorization cards that evening. (The remaining employees in the unit were Rezek and Gourlay ) N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575; and Trading Port, Inc., 219 NLRB 298. CONCLUSIONS OF LAW 1. Raimund Corssen, Co., Inc. d/b/a Raycor Co., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 259, United Automobile, Aerospace and Agri- cultural Implement Workers of America, is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. By Respondent's Accountant and Agent Rosen- berg's interrogating employees as to what they heard or knew about the Union, whether they had been ap- proached by the Union and who was involved in it, and his later questioning of the shop unit employees as a group again generally as to what they knew about the Union, and then individually in the group essentially as to their individual contact with the Union, Respondent has thereby unlawfully interrogated its aforesaid employ- ees in regard to their union interests, sympathies, and ac- tivities, and as to the union interests, sympathies, and ac- tivities of other employees in violation of Section 8(a)(1) and Section 2(6) and (7) of the Act. 4. By Respondent's Accountant and Agent Rosen- berg's telling employees, in substance and effect, that with a union in the shop some of the employees would risk receiving lower classifications and resultingly suffer reduced wages, Respondent has interfered with, re- strained, and coerced employees in violation of Section 8(a)(1) and Section 2(6) and (7) of the Act. 5. By Respondent's President Corssen's statements in- dicating to employees Respondent's willingness to afford employees an incentive method of payment as an alterna- tive means of earning more money, Respondent has thereby offered an implied promise of benefit to its em- ployees which has interfered with the free exercise of their Section 7 rights to join a union in violation of Sec- tion 8(a)(1) and Section 2(6) and (7) of the Act. 6. By Respondent's President Corssen's and its Ac- countant and Agent Rosenberg's threatening striking em- ployees with job loss if they did not abandon their strike action and return to work, Respondent has violated Sec- tion 8(a)(1); and by discharging striking employees Rus- sell Labriola and Paul Falabella on September 8 because they engaged in strike activity and refused to return to work, and by refusing thereafter to reinstate them to their former or substantially equivalent positions of em- ployment, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. 7. The strike which commenced on September 6 was in its inception an economic strike, but was converted to an unfair labor practice strike upon Respondent's dis- charge of employees Labriola and Falabella on Septem- ber 8, and remained an unfair labor practice strike in its duration through approximately September 28. 8. The Union enjoyed majority designated status on August 9 in a unit of service shop employees herein- above found appropriate; and on August 10 the Union requested Respondent to recognize it and to commence bargaining with it as the duly designated collective-bar- gaining representative of Respondent's aforesaid service RAYCOR CO. 591~~~~~~~~~~~~~~~~~~~~ 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shop employees, which, since August 11, Respondent has thereafter failed and refused to do. Commencing on August 11 Respondent has engaged in the commission of the above serious unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. By the above conduct commencing August 11 Respondent has violated Section 8(a)(5) of the Act, and there is clear warrant to issue a remedial bargaining order herein. 68 9. Except as heretofore found, Respondent has not en- gaged in any other unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices in violation of Section 8(a)(l), (3), and (5) of the Act, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has unlawfully refused to bargain collectively with the Union, I shall recom- mend that it be ordered to bargain collectively with the Union, upon request, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment for the employees in the appropriate unit described below. I shall also recommend that any under- standing that the parties may reach shall be embodied in a signed agreement. It is further recommended that Respondent offer Rus- sell Labriola and Paul Falabella immediate and full rein- statement to their former positions or, in the event such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. I shall also recommend that Respondent make them whole for any loss of pay they may have suffered by reason of Respondent's unlawful discrimination against them by payment to each of them a sum of money equal to that which each would have earned from the date of their discharge to the date they are offered reinstatement, with interest. Such backpay and interest thereon is to be computed in accordance with the formula described in F. W. Wool- worth Company, 90 NLRB 289 (1950), Florida Steel Cor- poration, 231 NLRB 651 (1977).69 As the unlawful discharges of Labriola and Falabella are of such a serious nature as to strike at the very heart of rights intended to be protected by the Act, I shall rec- ommend the issuance of a broad cease-and-desist Order requiring Respondent to cease and desist from in any other manner infringing upon employees' rights. Abilities and Goodwill, Inc., 241 NLRB No. 5, fn. 14. 68 The unfair labor practices are in nature serious and have affected a small unit. In view of the size of the appropriate unit herein, I find the above unfair labor practices "are of such a nature that their coercive ef- fects cannot be eliminated by the application of traditional remedies with the result that a fair and reliable election cannot be had"; or, alternative- ly, the possibility of erasing the effects of the above unfair labor practices and of insuring a fair election, if present, is slight; and that employees' sentiment as reflected by their execution of union authorization cards during the critical period herein would, on balance, be better protected by a bargaining Order V. L. RB. v Gissel Packing Co.. supra. "9 See, generally, iss Plumbing & Heating Co., 138 NLRB 716 (1962) Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER7 0 The Respondent, Raimund Corssen, Co., Inc. d/b/a Raycor Co., Oyster Bay, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union in- terests, sympathies, and activities, and as to the union in- terests, sympathies, and activities of other employees in a manner constituting interference, restraint, or coercion of employees engaged in the exercise of the rights guaran- teed them in Section 7 of the Act. (b) Telling employees that with a union in the shop some employees risk receiving lower classifications and resultingly suffering reduced wages. (c) Promising employees an incentive plan or other economic benefits in a manner which interferes with the free exercise of their Section 7 rights to join a union. (d) Threatening striking employees with job loss if they do not abandon their strike action and return to work; and discharging and thereafter refusing to reinstate striking employees because they refuse to abandon their strike action and return to work. (e) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of employment with Local 259, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, as the exclusive bargaining representative of its employees in the following appropriate bargaining unit: All service shop employees, including all parts de- partment employees, mechanics, helpers, and clean- ers employed by Respondent at its location at 243 Pine Hollow Road, Oyster Bay, New York; exclud- ing all office clerical employees, salesmen, and guards and supervisors as defined in the Act. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to Russell Labriola and Paul Falabella imme- diate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay or other benefits they may have suffered as a result of their unlawful discharge on September 8 and subsequent nonreinstatement. Such backpay and other benefits is to be computed in accordance with the 70 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. RAYCOR CO. 593 manner set forth in the section of this Decision entitled "The Remedy." (b) Upon request, recognize and bargain collectively in good faith concerning rates of pay, wages, hours of em- ployment, and other terms and conditions of employment with Local 259, United Automobile, Aerospace and Ag- ricultural Implement Workers of America, as the exclu- sive bargaining representative of the employees in the above-described appropriate bargaining unit, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its above service shop in Oyster Bay, New York, copies of the attached notice marked "Appen- dix." 7 Copies of said notice, on forms provided by the I' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Regional Director for Region 27, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not spe- cifically found herein. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing all Order of the National Labor Relations Board." RAYCOR Co. 593