Bill Heath

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. BILL HEATH and INTERNATIONAL ASSOCIATION OF MACHINISTS, DIs- TRICT LODGE #727. Case 1Vo. 01-CA-783. May 03, 1951 Decision and Order On January 15, 1951, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Intermediate Report and supporting briefs. The Respondent's request for oral argument is hereby denied, as the record and briefs, in our opinion, adequately present the issues, and the positions of the parties. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications : 1. The Trial Examiner found that Engilman, by various state- ments set forth in the Intermediate Report, violated Section 8 (a) (1) of the Act. We agree with the Trial Examiner except with respect to his finding based on Engihnan's alleged statement that "the Respondent would not sign a contract with the Union." The record does not show that Engilman made this statement. 2. The General Counsel excepted to the Trial Examiner's failure to make a finding with respect to Service Manager Miller's interro- gation of employee Kenneth Reed concerning the latter's desire for union representation. Reed testified, without refutation, that Miller, on the day of the Board-conducted election, asked Reed "how was he [Reed] going to vote." We find that such interrogation by Miller, a supervisor within the meaning of the Act, is per se violative of Section 8 (a) (1) of the Act 2 ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Reynolds and Murdock]. 2 Supreme Bedding and Furniture Manufacturing Company , Inc., 93 NLRB 1616; Standard-Coosa-Thatcher Company, 85 NLRB 1358. 94 NLRB No. 124. BILL HEATH 783 3. We agree with the Trial Examiner that Dan Sharp was dis- charged not because of his refusal to deliver a car, as-requested by Gonzalez, but because of his union activity, in violation of Section 8. (a) (3) of the Act. However, we do not rely on the Trial Examiner's unqualified finding that the Respondent discharged Sharp "without first hearing his version of the incident." While Miller testified that after hearing only Gonzalez's version of the incident, he spoke with Heath concerning Sharp's discharge, the record indicates that the final decision of discharge was not made until after Miller had asked Sharp on the following morning for an explanation of his refusal to deliver the car in question. It is indeed significant, however, that even though Miller, after hearing Sharp's explanation, admitted that the latter was not at fault, Sharp was shortly thereafter discharged. When Sharp protested the discharge in light of Miller's previous exoneration of Sharp, Miller responded, "Let's say that circumstances are costing you your job." Order Upon the entire record of this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Bill Heath, North Holly- wood, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists, District Lodge #727, or in any other labor organization of its employees by discriminating in regard to their hire or tenure of employment, or any term or condition of employment, because of their membership in, or activity on behalf of, any such labor organization. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist the International Association of Machinists, District Lodge #727, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of.the Act. (c) Refusing, upon request, to bargain collectively with Interna- tional Association of Machinists, District Lodge #727, as the exclu- sive representative of its employees in the appropriate unit. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Upon request, bargain collectively with International Asso- ciation of Machinists, District Lodge #727, as the exclusive repre- sentative of all the employees in the appropriate unit, and if an under- standing is reached, embody such understanding in a signed agreement. (b) Offer to Dan Sharp immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges. (c) Make whole Dan Sharp for any loss of pay he may have suf- fered by reason of the Respondent's discrimination against him, in the manner set forth in the section of the Intermediate Report en- titled "The Remedy." (d) Post in its plant at North Hollywood, California, copies of the notice hereto and marked Appendix A.3 Copies of said notice, to be furnished by the Regional Director for its Twenty-first Region, shall, after being duly signed by the Respondent, be posted by the Respond- ent immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-first Region, Los Angeles, California, in writing within ten (10) days from the date of the Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed as to James Williams, Milton Yablon, Mel Kembriel, Alexander Rosman, and Jewel Norwood. Intermediate Report and Recommended Order Ralph, H. Nutter, Esq, for the General Counsel. James H. Nicoson, Esq, and Carter cC Potruch, by Fredei iclc A. Potruch, Esq., for the Respondent Messrs. Walter Owen and D. A. Gordon, for the Union. STATEMENT OF 7HE CASE Upon a charge, a first amended charge, and a second amended charge duly filed on May 23, July 5, and July 26, 1950,' respectively, by the International Association of Machinists, District Lodge No. 727, herein called the Union, the General Counsel of the National Labor Relations Board, herein called, re- spectively, the General Counsel and the Board, issued his complaint on September 3 This notice, however, shall be and it hereby is amended by striking from the first paragiaph thereof the words, "The Recommendations of a Trial Examiner" and substi- tuting in lieu theieof the words, "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order" the words, "A decree of the United States Court of Appeals Enforcing " I Unless otherwise indicated all dates refer to 1950. BILL HEATH 785 29, alleging that Bill Heath,' North Hollywood, California, had engaged in, and was engaging in, unfair labor practices affecting commerce, within the meaning of Section S (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat 136, herein ci lled the Act. Copies of the complaint and the aforesaid charges, together with notice of hear- ing thereon, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint in substance alleged that the Respondent (1) since on or about January 17, has refused to bargain collectively with the Union although the Union had been designated and selected the collective bargaining representative by the Respondent's employees in a cer- tain appropriate unit; (2) discharged Milton Yablon,3 Mel Kembriel, Alexander Rosman on'March 18, Dan Sharp on April 12, Jewel Norwood and James Wil. liams on April 13, and thereafter has refused to reemploy them, or any of them, because of the Respondent's belief that they supported the Union; and (3) en- gaged in certain stated conduct and made various statements which interfered with, coerced, and restrained its employees in the exercise of the rights guaran- teed in Section 7 of the Act Pursuant to notice, a hearing was held from November 7 to November 10, both dates inclusive, at Los Angeles, California, before the undersigned, Howard Myers, the duly designated Trial Examiner The Respondent and the General Counsel were represented by counsel ; the Union by representatives thereof. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues During the course of the General Counsel's case-in-chief, the Respondent's counsel moved to dismiss the complaint on the ground of lack of jurisdiction on the part of the Board, or, in the alternative, even if the Board had jurisdic- tion it should not assert it because of the local character of the Respondent's business Decision thereon was reserved The motion is hereby denied. At the conclusion of the General Counsel's case-in-chief, the General Counsel moved to amend the complaint (1) to strike the allegation therefrom that Jewel Norwood was discriminatorily discharged and (2) to insert in paragraph VIII thereof the following, "attempting to discriminate against Jewel Norwood and modifying his working conditions because of his support of the Union and his participation in the National Labor Relations Board election on April 13, 1950.' The motion to strike was granted without objection The motion to amend was granted over the objection of the Respondent's counsel. The Respondent's counsel then moved to dismiss the complaint in its entirety or, in the alternative, to dismiss certain stated portions thereof The motions were denied, except the motion to dismiss because of lack of jurisdiction Deci- sion thereon was reserved The said motion is hereby denied At the conclusion of the taking of the evidence, the General Counsel's motion to conform the pleadings to the proof, with respect to minor variances, but not to include any new unfair labor practice, was granted without objection. Coun- sel for the Respondent then renewed his motions to dismiss the complaint. Decision thereon was reserved. The motions are hereby denied. The parties were then informed that they might file briefs or proposed findings of fact and conclusions of law, or both, with the undersigned on or before November 25." A brief has been received from the Respondent which has been carefully con- sidered by the undersigned 2 The pleadings and all other formal papers were amended at the hearing to show the correct name of the Respondent as it appears above 3 Referred to in the complaint and the charges-as Nick Yablon 4 At the request of the parties , the time-was es tended to December 11 953841-52-vol 94-51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case , and from his observation of the witnesses,' the undersigned makes the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Bill Heath, a California corporation, is engaged in and at all times material herein has been engaged in, the operation of an automobile agency dealership and automobile repair and service shop in North Hollywood , California, for the sale, service , and distribution of new Ford automobiles, trucks, accessories, and parts under an exclusive franchise or dealer 's agreement with Ford Motor Company' The Respondent also operates a used car_ lot within a block of its new car showroom and service department. During 1949, the Respondent purchased from Ford Motor Company new Ford automobiles and trucks valued at $573,077.97, and parts and accessories valued at $100,515.82. In addition, the Respondent purchased during 1949, from sources other than Ford Motor Company, used automobiles and trucks valued at $197,714.26. During the same year, the Respondent sold new Ford automobiles and trucks valued at $637,322 98, and used automobiles and trucks valued at $ 200,333.86 (including the cost of repairs), and parts and accessories valued at $136,711.83. The parties stipulated at the hearing that the Respondent's purchases and sales for 1950 are approximately the same as were its 1949 transactions. Foid Motor Company maintains a new car and truck assembly plant at Long Beach, California, from which the Respondent obtains its new cars and trucks. For the fiscal year ending September 30, 1950, motor vehicle production parts necessary for the completion of automobiles, other parts, and accessories valued in excess of $150,000,000 were shipped to Ford Motor Company' s assembly plants located at Long Beach and Richmond, California, of which approximately 55 per cent were shipped to those assembly plants from points located outside the State of California During the aforesaid fiscal'year, the Respondent's pur- chases from Foid Motor Company approximated $715,000, of which amount about $10,800 were shipped directly to the Respondent from points located outside the State of California. All the Respondent's sales are made either locally or within the State of California. Counsel for the Respondent contended at the hearing, and in their brief, that the complaint should be dismissed because, among other reasons, the Respondent is not engaged in commerce within the meaning of the Act, and even if it were so engaged, the Board should not assert jurisdiction because of the local character of the Respondent's business. Upon the above admitted facts, the Act is plainly applicable to the Respondent and the employees here involved. The test of the Act's applicability, laid down by the Supreme Court in Jones & Laughlin case' and repeatedly reaffirmed and applied by that Court in subsequent decisions,' is whether "stoppage of . . . operations by industrial strife" would or may result in interruption of, or interference with, the free flow of goods in interstate commerce and foreign commerce. 5 The record indicates , as the Board and the courts have found on various occasions, that Ford Motor Company is engaged in commerce within the meaning of the Act. 6 301 U S. 1. P Santa Crux Fruit Packing Co v N L R B , 303 U S 453, Consolidated Edison Co v. N. L R B, 305 U. S 197 , N L _R B v. Fainblatt, 306 U. S 601 ; N L R. B. v Bradford Dieing Assn , 310 U 8 318 BILL HEATH 787 The Respondent's purchases are received almost entirely from the Long Beach, California, plant of Ford Motor Company where new Ford automobiles and trucks are assembled. Fifty-five percent of the materials used in as- sembling said automobiles and trucks are shipped to that plant from points located outside the State of California. It is plain that a stoppage of the Re- spondent's operations would immediately and directly operate to stop or curtail the interstate movement of goods to the Respondent's plant and hence curtail the interstate movement of goods to Ford Motor Company's Long Beach plant. The jurisdictional test is thus completely satisfied as the applicable decisions hold. The fact that the Respondent's sales are all made locally or within the State of California is, of itself, of no importance. The flow of commerce is the same, from whichever end it is viewed, and the protective power of the Act does not vary by reason of the point from which the flow is viewed. N. L. R. B. v. New- port News Shipbieild'ng & Drydock Co' The Respondent further argues that the Board, even if it found that the Re- spondent is engaged in commerce within the meaning of the Act, should not assert jurisdiction because to do so would not effectuate the policies of the Act, be- cause of the local character of the Respondent's business and for the further reason that in several recent decisions the Board had declined to assert juris- diction over-employers operating under exclusive franchises or sales agreements similar to the Respondent's agreement with Ford Motor Company and whose interstate purchases and sales were below a certain dollar amount. Assuming that the Board, in the cases cited by the Respondent,' and in others, had declined to assert jurisdiction, that fact alone would not preclude the Board from assert- ing it here." On June 7, 1950, the Board did, in fact, assert jurisdiction over the Respond- ent and, as found hereinafter, on that date certified the Union as the exclusive collective bargaining representative of the Respondent's employees in a certain appropriate unit. Since the Board already has found the Respondent subject to the Act, the Board's power to grant affirmative relief in the instant case is incontestable. Furthermore, in recognition of the fact that the sale and service of new automobiles on a franchise basis is an integral segment of the distribution of automobiles on a Nation-wide basis, the Board has held that such business is subject to the Act" The Board's assertion of jurisdiction over this industry, moreover, has been specifically approved by the courts 12 Accordingly, the undersigned concludes and finds that during all times material herein the Respondent was, and now is, engaged in commerce within the mean- ing of the Act, and further finds that it will effectuate the policies of the Act for the Board to assert jurisdiction. '308 U. S 241. 8 Among them, Dorn's House of Miracles, 91 NLRB 565; Federal Dairies Co., Inc., 91 NLRB 544; Stanislaus Implement Co., 91 NLRB 618; Hollow Tree Lumber Co., 91 NLRB 894; Borden Company, 91 NLRB 628. ^o See N. L. R. B. v. Baltimore Transit Co., 140 F. 2d 51 (C. A. 4). ii Inddon White Truck Co., Inc., 76 NLRB 1181 ; Bell-Wyman Company, 79 NLRB 1424 ; Puritan Chevrolet, Inc, 76 NLRB 1243; Adams Motors, Inc, 80 NLRB 1518; Lawrence Holbrook, et al., 80 NLRB 1679, Valley Truck and Tractor Co., 80 NLRB 444; Harrys Cadillac-Pontiac Company, et al., 81 NLRB 1 ; Earl McMillian Company, 81 NLRB 639; Jack Taylor, et al., 85 NLRB 1336; Rome Lincoln-Mercury Corp, 86 NLRB 387; Rowan Motor Co , 9g NLRB No 156; Massachusetts Motor Car Go, Inc., 90 NLRB No 186; Baxter Bros, 91 NLRB 1480 '2N. L R. B. v M. L Townsend, 185 F. 2d 378 (C A 9) ; N. L. R. B v. Henry Levaur, Inc., 115 F. 2d 105 (C. A 1) ; Williams Motor Co. v. N L. R. B, 128 F. 2d 960 (C. A. 8) ; N L. R. B. v. J. C. Lewis Motor Co, Inc., 180 F. 2d 254 (C A. 5). 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II 1HE ORGANIZATION iNVOLVEI) International Association of Machinists, District Lodge No. 727, is a labor organization admitting to membership employees of the Respondent. III THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively with the Union 1 The appropriate unit The complaint alleged, as the Board found in its Decision and Direction of Election, dated March 30,i3 that all employees of the Respondent at its estab- lishment in North Hollywood, California, excluding salesmen, office and clerical employees, professional employees, guards, and supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining" in its answer herein the Respondent denied such a unit was appropriate but introduced no evidence to support its contention. Upon the entire record in the case, the undersigned finds that all employees of the Respondent at its establishment in North Hollywood, California, excluding salesmen, office and clerical employees, professional employees, guards, and sdpervisors, as defined by the Act, at all times material herein constituted, and now constitute, a unit appropriate fox the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that the said unit insures to the Respondent's employees the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. 2 The Union's majority status in the appropriate unit At a secret ballot election conducted by the Board on April 13, pursuant to the Decision and Direction of Election issued by the Board on March 30, the Union was designated by a majority of the employees in the appropriate unit as their representative for the purpose of collective bargaining.'U On June 7, the Board certified the Union as the exclusive representative of the Respondent's employees in the appropriate unit. The complaint alleged, and the answer denied, that on January 17 the Union was the exclusive representative of the employees in the appropriate unit The iecord, however, does not support this allegation of the complaint. While theie is some evidence indicating that many of the employees in the apropriate unit had joined the Union on or before Januai y 16, no evidence was introduced to show exactly how many employees had in fact joined the Union, or had author- ved it to represent them for collective bargaining purposes. on or prior to January " 89 NLRB 67. 14 In the representation proceeding the Respondent took no position with respect to the appropriateness of the unit. 'b Of the 17 valid votes cast, 7 were cast for the Union, 5 against the Union, and 5 were challenged . On April 19, the Regional Director, after investigation , issued and served upon the parties lus report on challenges, in which lie recommended that the challenge to one ballot be sustained and the challenges to the remaining 4 ballots be overruled and the votes counted The Respondent herein filed exceptions to the Regional Director's report as to 2 of the challenges which the Regional Director recommended overruled. The Board thereafter adopted the recommendations of the Regional Director and ordered the 4 ballots opened and counted The record is silent as to the total numb"- of votes received by the Union The record, however, does disclose that the Union win the election. BILL HEATH 789 17, nor was any evidence introduced to show the exact number of persons in the appropriate unit on January'17. In view of the Board's certification, and upon the entire record, the under- signed finds that on June 7, and at all times thereafter, the Union was, and now is, the duly designated representive of a majority of the employees in the appropriate unit and that, pursuant to Section 9 (a) of the Act, the Union wan and now is, the exclusive representative of all the employees in the said unit for the purposes of collective bargaining in respect, to rates of pay, wages. hoi" of employment, and other conditions of employment. 3. The refusal to bargain At about S o'clock on the morning of January 17, Lloyd Poesnecker , an in- ternational representative of the Union, accompanied by D. A. Gordon and John Snider, organizer and senior business representative , respectively, of the Union's District Lodge No 727, called at the Respondent 's premises , which is across the street from the union hall. There Poesnecker informed Elmer Miller , the man- ager of the Respondent's service department , that the Respondent's shop em- ployees had joined the Union and that they would report for work that morning wearing union buttons. Miller replied that he was not surprised that the em- ployees had joined the Union because he had heard some employees discussing the advisability of their joining . Poesnecker then asked to see William Heath, the Respondent's president . Miller stated that Heath was ill and suggested that Poesnecker see Ellsworth Engilman n the Respondent's vice president of sales, who, Miller said, would be in at about 9: 30 that morning. Poesnecker, Gordon, and Snider then left and returned to the union hall. Sometime between 9 and 9: 30 that morning, Poesnecker and Gordon called upon Engilman . Poesnecker testified that during the conversation he had with Engilman , the following ensued : We have known him [Engilman ] from past associations . So I said, "I have kind of come over here to talk about the boys " He said , "I don't know what we got to talk about." "Well," I said. "your boys have all joined our organization , Al," and I said, "They want us to represent them " And I said, "I think the best thing for you to do under the circumstances would be to sign a recognition agreement that you recognize the boys, and should set up some time where we can get into thiw contract." Well, he was very much displeased and told us , among other things, that he didn't believe in the union ; he didn't think the men had any business joining the union , and he didn't want anything to do with the union at all. And he was getting louder as time went on. So I could see very plainly that we weren't making any headway with Mr. Engilman , so I told him before we left that there was no sense in him blowing up over the thing, that this was just a usual procedure when the men in the shop wanted to belong to the union , and it was our procedure to contact management first before we took any other steps to see if manage- ment wanted to sit down and discuss the matter with us ; that if he didn't want to do that, then , certainly there was a regular legal procedure that we could go through, and we would have to do that. He said lie didn't care what we did, that he wasn't going to sign any con- tract with the union . And we excused ourselves then and left. "Admittedly Engilman is, and during all times material herein was, in complete charge of all the Respondent's affairs in the absence of Heath. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gordon's version of what was said during the above related conversation is substantially in accord with Poesnecker's version thereof. Gordon, however, testified that the meeting broke up when Engilman said, "I don't want no part of you nor your damned union." According to Engilman, the following transpired during his conversation with Poesnecker and Gordon: And they said that the boys had signed up for a union shop and I says, "When? Is that so?" They said, "Yeah." I says, "It is quite a surprise to me." And he [Poesnecker] says, "From now on, you will listen to us in regards to the labor disputes amongst the men." And I says, "Now, as far as that goes, I particularly do not have too much to do with that end of it." I says, "My name is not over the door yet." Engilman also testified that he "didn't pay particularly too much attention to" what Poesnecker was saying because "it wasn't a serious matter at that time." Engilman further testified that Poesnecker and Gordon returned later that day, made some references "about contracts" and demanded a closed-shop contract ; that he replied, "the only contracts I am interested in are automobile contracts with Bank of America terms" ; that Poesnecker then stated that Dan Sharp bad been selected shop steward and "the boys would take their grievances to Mr. Sharp" ; and that Poesnecker added that the Union had set the Board's machinery in motion and the Respondent would hear from the Board. The undersigned was favorably impressed with the sincere and honest man- ner in which Poesnecker and Gordon testified and with their demeanor while on the witness stand. Their testimony, moreover, was not shaken under cross- examination. On the other hand, the undersigned was not so impressed by Engilman His demeanor and his entire attitude while on the witness stand indicated to the undersigned that he was not testifying credibly. The under- signed, therefore, finds Poesnecker's and Gordon's versions of what transpired at their meeting with Engilman on January 17, to be substantially in accord with the facts. The undersigned further finds, contrary to Engilman's testimony, that Engilman, Poesnecker, and Gordon conferred but once on January 17. Dan 'Sharp testified that at a union meeting held on the evening of January 16, he was selected by his coworkers senior chairman or shop steward ; that when he reported to work the next day he wore a button inscribed "senior chair- man"; that at about 9: 30 that morning Miller told him Engilman wanted to see him'; that, accompanied by Miller, he went to Engilman's office and that, in the presence of Miller, Engilman told him, among other things,17 that he should tell the employees that the Union would do them "no good," and that the em- ployees "would suffer for their mistake and that there would never be a union shop there if he had to close the doors." Engilman denied, in effect, making the above-quoted statements. Sharp was a forthright and honest witness and his testimony on cross- examination was not substantially shaken. Moreover, his demeanor while on the witness stand favorably impressed the undersigned. Engilman, as found above, was not a credible witness. The undersigned finds, under the circum- stances, that Engilman made the above-quoted statements attributed to him by Sharp. During the afternoon of January 17, the Union sent the Respondent a regis- tered letter. The letter stated that it had been designated the collective bargain- 17 This entire conversation is more fully discussed below with respect to Sharp's discharge. BILL HEATH 791 ing representative by a majority of the Respondent's mechanics, lube men, parts men, body and fender men, painters, service mechanics, maintenance men, and working foremen, and demanded that the,Respondent recognize the,Union as such representative. The letter concluded with, a request that the,i Respondent fix a convenient time for a meeting to discuss and negotiate a collective bargain- ing contract. The Post Office Department presented the aforesaid registered letter at the Respondent's place of business on January 18, 19, and 20, and on each occasion the letter was refused by the person in the Respondent's employ who normally received and signed for registered letters addressed and delivered to the Respondent. In the latter part of January, Frederick A. Potruch, Esq., one of the Re- spondent's counsel herein, addressed the Respondent's service shop employees. According to the testimony of Harold McKinney, Potruch stated during the course of his remarks, to quote McKinney, "we were foolish in joining a labor organization . . . that any problem we might have we could talk over with Management" ; that Potruch, toward the end of the meeting, pointed to each employee sitting at the table 18 and asked each of them, "Did you sign a [Union] card?" and that Potruch also said, "We [the Respondent] would never have a union" in the shop. Alexander Rosman testified that he could not recall the details of Potruch's remarks but that he did remember Potruch pointing at the various employees seated at the conference table and asking each of them whether they had joined the Union. Sharp testified that in response to Potruch's inquiry about joining the Union, one employee replied in the negative. Regarding Potruch's further remarks at this meeting, Sharp further testified that Potruch said that the Respondent would never operate a union shop; that the Respondent would never sign a contract with the Union, and would close its doors before it would do so; and that Heath "had more money than he could spend for the duration of his life and that if he closed the doors we [the employees] would starve to death and our jobs would be gone...." Potruch testified that after Engilman had introduced him to the assembled employees he made a few remarks about himself and then proceeded to outline to the employees the Respondent's labor relations policies. Potruch further testified that during his remarks he said that there was pending before the Board a representation petition and at the hearing thereon he would contest the Board's jurisdiction because he did not believe that the Respondent was engaged in commerce within the meaning of the Act ; that he had instructed the Re- spondent's officials not to iaise the wages or rates of pay of the employees while the representation proceeding was pending; that the employees were free to join or not to join any labor organization they desired ; that he believed in unionism but that it had its place; that unions were desirable in large plants, but not in the Respondent's establishment ; that he then asked if any employee had any question to ask, that one employee asked him if he thought it was fair that the Respondent reduced the employees' commissions without notice ; that he replied in the negative, adding that if he were one of them he would take the matter up with the management; and that in answer to a "question about unionism . . what I meant about being in favor of unionism, and that they had heard to the contrary from the union, and I told them again-I repeated that I believed in unions, and I gave them an example of where it was good. 6 As the Petitioner has made a sufficient showing of interest, and as it indicated at the head of the conferencet'able, some employees sat around it, and the remaining employees, because of lack of sufficient chairs, sat on the floor. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and I turned around to the men and I said, `Under the circumstances, I would join a union . Wouldn't you?' Of course, there was some laughter and some agreement, and the meeting broke up." Potruch did not impress the undersigned as being a sincere and straightfor- ward witness. Furthermore, as more fully discussed below, Potruch' s entire testimony is not only at variance with the credible testimony herein but it is belied by documentary evidence. On the other hand, the undersigned finds that McKinney, Rosman, and Sharp were credible witnesses. The undersigned further finds that Potruch made the statements attributed to him by the afore- said three persons and that the statements contained utterances proscribed by the Act and therefore, contrary to the contention of the Respondent's counsel, the said proscribed statements are not protected by Section 8 (c) of the Act. Toward the end of March, Potruch again addressed the service shop em- ployees. The undersigned finds, contrary to the General Counsel's contention, that Potruch's remarks on that occasion were not violative of the Act. On June 7, after a secret ballot election, the Board certified the Union as the exclusive bargaining representative of the employees in the appropriate unit. On June 23, the Union wrote the Respondent that a committee had been se- lected to negotiate a collective bargaining agreement with the Respondent and requested the Respondent to fix a date, at its earliest convenience, for the purpose of discussing the terms of such a contract. On June 28, Potruch wrote the Union as follows Your letter of June 23; 1950 addressed to Bill Heath, Inc., has been turned over to us for reply. It has been our contention and still is our contention that the National Labor Relations Board has no jurisdiction in this matter and, therefore, we see no reason why it is necessary to have a meeting for the purpose of dis- cussing terms and provisions of a Labor-Management contract. On June 30, Potruch and Poesnecker met in San Diego, California, where they had gone in order to participate in a certain Board proceeding. Potruch testified that as he and Poesnecker were leaving the Court House at the conclusion of that hearing, Poesnecker asked him, "How about a contract in the Heath case?"; that he replied, "I would give you a contract tomorrow if you would give us an open-shop clause" ; that Poesnecker then remarked, "Fred, you know I can't give you that kind. We can't give you that kind of a deal. The boys at 727 wont permit it"; and that when he asked, "Because they want a closed shop or it union shop for organizational purposes?", Poesnecker said, "That is right." Poesnecker admitted that on June 30, in San Diego, he asked Potruch if he would sign a contract with the Union covering the Respondent's employieesF He then testified that in response to his request Potruch replied, "Well, you know I can't sign a contract there. That case is a test case in litigation." Poesnecker denied that Potruch offered him an open-shop contract and that he declined it demanding, instead, a union-shop contract. • It is not credible that Potruch would offer the Union a contract, an open-shop one or otherwise, on June 30, when 2 days previously he had written the Union refusing even to meet with a union committee. Furthermore, from the very inception of Potruch's retention as counsel for the Respondent he has taken the position, from which he has never receded, that the Respondent did not come within the Board's jurisdiction and therefore the Respondent was not obliged to recognize or bargain with the Union 19 v This same position was maintained by Potruch at the hearing herein. BILL HEATH 793 Potruch, moreover; admitted on the witness stand' that about a month or so after the Board,conducted election, while discussing with E. M Skagen', a union official, the question of raising the commissions of the Respondent's mechanics, lie declined Skagen's request to enter into a contract covering the Respondent's employees because, as he testified, he "wanted to make a test case out of Heath on jurisdiction"; that; in August, he telephoned Skagen and again suggested that the Union agree to increase the commissions of'the mechanics, that when Skagen hesitated about consenting, because Skagen was desirous of negotiating a, contract with the Respondent, he said to Skagen, "we are fighting jurisdiction, why take it out on the men or the company" ; that after Skagen had agreed to the increase, he, at Skagen's suggestion, contacted John Snider, the senior business agent of District Lodge No. 727; that Snider and he arranged for the posting of notices announcing the increase upon the Respondent's bulletin boards; and that under date of August 3, he sent Snider the following letter : Confirming our conversation of August 2, 1950, I wish to state that the announcement made at Bill Heath, Inc. regarding the increase in cus- tomer's rates from $3 00 to $3.50 20 does not in any way, shape or form affect the union's right to negotiate a contract, nor does it affect the em- ployees' right to collective bargaining and a selection of a representative, nor is it in any manner intended to be an admission that the company recognizes the union. In view of Potruch's testimony, as summarized above, coupled with the state- ment contained in his letters of June 28, and August 3, the undersigned is con- vinced, and finds, that Poesnecker's version with respect to his conversation with Potruch on June 30, is substantially in accord with the facts. The under- signed further finds that at no time did Potruch offer to enter into a contract with the Union on behalf of the Respondent's employees. Heath testified that sometime in the latter part of August or early in Septem- ber, Snider and Harold Shean, another representative of the Union, called upon him and requested that he fix a date for a meeting "to talk over a closed- shop," and that despite his insistence that they remain and discuss the matter right then and there, Snider and Shean refused to do so, maintaining that they wanted the conference to be held at some later date. Snider's version of what transpired at that meeting is as follows : Mr. Harold Shean, one of our business representatives, and I went over to see Mr. Heath. We talked to him for 45 minutes or an hour. We asked Mr. Heath to make arrangements to meet with our negotiating committee for the purpose of negotiating an agreement between Bill Heath, Inc , and District 727 of the International Association of Machinists. Mr. Heath said he would have to confer with his counsel before making any decisions in this respect. We had a great deal of general conversation. We outlined to him the structure of our organization, explaining that we were a very democratic organization and that negotiations would be conducted between the company and a committee composed of Mr. Shean and two of Mr. Heath's employees who would be selected to serve on the negotiating committee. In view of Engilman's admission that the entire question of negotiating a contract with the Union was in Potruch's hands plus Potruch's admissions that he had advised the Respondent's officials, the employees, and the Union that the Respondent was not within the Board's jurisdiction and for that reason the Respondent would not bargain collectively with the Union, coupled with the fact 20 The mechanics' commissions were thereby correspondingly increased. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Snider was a credible witness, the undersigned is convinced, and finds, that Snider's version of what transpired at the above referred to meeting with Heath is substantially in accord with the facts. Upon the entire record in the case, the undersigned finds that on June 28,n and thereafter, the Respondent failed and refused to bargain collectively with the Union as the duly designated representative of a majority of its employees in the unit hereinabove found appropriate, in violation of Section 8 (a) (5) of the Act, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. In its brief the Respondent's counsel contended that the refusal to bargain allegations of the complaint must be dismissed because when Heath, on cross- e.xamination, was asked by the General Counsel whether he would bargain with the Union, Heath answered in the affirmative. The contention is without merit. A question such as the above, given in the abstract, is meaningless with respect to the issues involved herein. The Board and the courts, moreover, have con- sistently held that a case does not become moot because the employer has aban- doned his unfair labor practices. Because Heath now says he will bargain with the Union, the Board thereby is not estopped or restrained from proceeding further. This is especially so where, as here, the credible evidence clearly re- veals that not only did the employer refuse, upon request, to bargain collectively with the statutory representative of his employer but also committed various other unfair labor practices, including discharging an employee for union membership and activity. B. Interference, restraint, and coercion Sharp testified that during his conversation with Engilman on the morning of January 17, the latter questioned him regarding the names of the other em- ployees who had joined the Union ; that Engilman asked why certain named employees had not been elected senior chairman instead of him ; and that Engil- man concluded the meeting with the admonition, to quote Sharp, "Mr. Spokesman, you go back to your boys and tell them that it will do them no good . . . they would suffer for their mistake and that there would never be a union shop there if he had to close the doors." Sharp further testified that about 5: 30 that afternoon, January 17,22 Miller told him that Engilman wanted to see him ; that he thereupon accompanied Miller to Engilman's office ; and that the following, among other things, there ensued: . . . Mr. Engilman greeted me, "Well, Mr. Bigshot Spokesman, have you figured out what advantages you gained by joining the union?" I told him that I hadn't been figuring it out, and he said that he had and that he figured that we joined the union to do less work and get more pay, but that that wasn't going to be the case and that he wouldn't tolerate any- one standing around, and he turned to Elmer Miller and-[said] he didn't want to see anyone taking it easy in the shop, that he wanted everyone kept busy, to keep them busy even if they had to do work that didn't actually need to be done, and that if there was any argument as to whose job it was supposed to be, why, to take no back-talk from anybody and to fire them. 21 The date of Potruch's reply to the Unions letter wherein Potruch declined to recognize the Union and declined to fix a date for a bargaining conference 22 Contrary to Engilman's testimony, the undersigned finds that Engilman called Sharp into his office not only in the morning but also in the late afternoon on January 17. BILL HEATH 795 Elmer said that he had never stood for any laying around and he wouldn't take any back-lip, and he told Elmer that if he caught anybody smoking, to fire him; also that if anybody took time off for coffee, to go up the street for coffee, to have their check made out when they got back . . Elmer said that nobody had been smoking and that he would keep every- body busy and Engilman said that he knew that they had been smoking, that he had seen them smoking and loafing. As found above, Sharp was a credible witness. Engilman did not so impress the undersigned. Miller testified but he was not questioned about aforesaid morning or afternoon meetings. The undersigned finds Sharp's account of what took place in Engilman's office on January 17, to be substantially in accord with the facts. Employee Rene Plot testified without contradiction, and the undersigned finds, that about the middle of March, Miller told him that Engilman wanted to see him; that, accompanied by Miller, he went to Engilman's office ; that the following, in Miller's presence, then ensued : And after I was seated, he [Engilman] said, why, he wanted to know what the union was going to offer us. And I said that the union hadn't promised us anything at the time. And he said, "Did you know that if the union lost out here, didn't go through and it lost out, what would happen to you fellows?" He said, "You fellows would have an awful time finding a job elsewhere." Employee Oliver Peterson testified without contradiction, and the undersigned finds, that sometime in March, he went to Engilman's office at the latter's re- quest and there, in Miller's presence, Engilman first asked him why he had joined the Union ; that he told Engilman why; and that Engilman then said, "Do you realize what will happen to you and your job if the union should lose the election?" Employee Allen T. Lemmond testified without contradiction, and the under- signed finds, that in March he had a conversation with Engilman in the latter's office ; that Engilman opened the conversation by saying that he did not expect to change Lemmond's mind with respect to the Union because he knew that Lemmond was "an old union man," but "there was no harm trying" ; that Engilman then said that Engilman would "change some of the men's minds" ; that Engilman con- tinued by saying, "Ford Motor Company was strictly against the union and [I am not) going to have" the Union in the shop ; and that Engilman also said : I suppose you know that if this thing blows over, the union deal drops, why, you boys will all have a pretty hard job getting a job anywhere in Southern California, due to the fact that whenever you go to apply for a job you have to give references. They will call us and we will say, "Oh, yes. He is one of those union men." When asked by Respondent's counsel whether he had ever questioned any em- ployee regarding his union affiliations, Engilman replied that he had asked all the employees "why they had to belong to a union at that particular time to settle any grievance when they could have come to us and we could have straight- ened things out." By Engilman's statements (1) threatening the employees with additional un- necessary work, (2) that the Respondent would not sign a contract with the Union, (3) that the Respondent would not tolerate the Union in the shop, (4) that the employees would "suffer" because of their affiliation, and (5) that the Respondent would close its doors before it would tolerate a "Union shop," as summarized above, to Sharp on January 17, by Potruch's questioning the employees during his speech in January regarding their union affiliations, and his statements in 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said speech that the Respondent would close its doors before it would enter into a contact with the Union, and by Engilman's statements, as quoted above, to Plot, Peterson, and Lemmond in March, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1) thereof. Heath testified that on the day of the election he assembled all the service shop employees and told them : As you know, boys, I have always been non-partisan, not concerned in your religion or affiliations with lodges or anything of that sort, but I understand you are having an election tonight and I would suggest that you use your right to do your own thinking and vote as you think best. The Respondent's counsel contends that Heath's above-quoted statement repudiated any and all statements of a coercive nature that Potruch. Engilman, and others might have made. Heath's claim of neutrality did not cure the coercive effect that the statements of Engilman and Potruch had upon the employees. Heath did not repudiate or disavow those statements. Those state- ments, summarized above, went beyond mere expressions of opinion and tended to deprive the employees of the organizational freedom guaranteed them in the Act Nothing that was said or done by Heath nullified the effect of Engilman's and Potruch's efforts through coercive conduct to keep the Union out of the Respondent's establishment. C. The discharge of Dan Sharp When Sharp first started his employment with the Respondent in Septem- ber 1949, he was night service salesman, lubrication man, and pickup and de- livery'man. Several weeks later his duties were confined primarily to pickup and delivery work and occasionally to lubrication of cars and trucks Sharp joined the Union on January 16, and was immediately selected by his fellow employees as shop steward or senior chairman. This fact, as found above, came to the Respondent's attention on January 17 The fact that Sharp was the leader of the Union's campaign in the Respondent's shop was also known to the Respondent on January 17. As found above, Engilman stated on the evening of January. 17. to Miller, in Sharp's presence, that since the employees were desirous of having a Union in the shop, it was his intention to see that no employees remained unoccupied dur- ing working hours. He thereupon instructed Miller (1) to see that the em- ployees were kept busy at all times during working hours, "even if they had to do work that didn't actually need to be done"; (2) to discharge any employee Miller caught smoking (despite the fact that in the past Engilman had seen employees smoke in the shop and did not discipline them therefor) ; and (3) to discharge any employee for leaving the shop to obtain coffee (although in the past the Respondent permitted its employees to leave the shop to obtain coffee during working hours). Sharp was singled out by Miller to perform tasks that be normally had not performed. Thus, starting in February, Sharp was not only the pickup and delivery man and part-time lubrication man, but he was also assigned to collect delinquent accounts and "hard to collect" bills, to masonry work, to window washing, to carpentry work, to clean up the vacant lot which adjoins the Re- spondent's building, and to wash and clean the sidewalks in front of the building. BILL HEATH 797 Regarding his discharge, Sharp testified that at 5: 30 p. m, on April 11, as he was leaving the shop for the clay," Filiberto Gonzalez, the then service salesman, "came running out of the door and hollered at me to deliver another car (to a, customer's home), and I told him that he was the delivery boy on that particular day and not myself, and that it was after 5 •30 I was going home. I left and went home"; that on April 11, he had been assigned by Miller to lubrication work be- ,cause the regular lubrication employee had not reported for work that day; that on no previous occasion had Gonzalez "ordered" him to deliver cars, and that when he reported for work the following day, April 12, Miller called him over and asked him for his version of what transpired the previous night; that he told Miller that about 5: 30 the previous evening, as he was leaving the shop, Gonzalez ordered him to deliver a car ; that the car in question had been ready for delivery since noon that day and that Gonzalez had undoubtedly forgotten to deliver it before quitting time ; that he told Gonzalez that it was Gonzalez's job to deliver the ear and not his ; that he reminded Miller that Miller had assigned him to do lubrication work that day because the employee who normally did that work was absent, and that Miller had instructed Gonzalez to make the deliveries that day; and that Miller agreed that lie was not at fault but that Gonzalez was at fault. Sharp also testified that after he had finished the above conversation with Miller, he returned to the lubrication rack where lie again had been assigned by Miller because of the further absence of the regular lubrication man ; that shortly thereafter Gonzalez came over and stated that upon returning to 'the shop after delivering the car in question Engilman inquired why he (Sharp) had not de- livered the car and that Gonzalez told Engilman that he (Sharp) had left for the day ; that about an hour or so later, Engilman and Heath arrived at the shop, stopped and looked at him, and then they went into the office portion of the building ; and that about 5 minutes later Miller was called on the public address system Sharp then testified that Miller returned to the shop about 5 minutes after he had been called on the public address system, came to him and said, "I am sorry, Dan, but I have to let you go"; that he asked why, and Miller replied, "be- cause of that deal last night with Gonzalez" ; that he then reminded Miller of their previous talk that morning, wherein Miller had agreed that Gonzalez had "fouled up" the delivery of the car and he was not at fault ; that Miller replied, "That's right, but I have got to let you go"; and that he thereupon left the shop. Gonzalez testified that at about 4: 30 p in. on April 11, he asked Sharp to deliver a car; that Sharp, who was then working on his own car, did not reply; that he i epeated his request to Sharp ; that Sharp replied, "The hell with you" : that lie then told Miller that Sharp had refused to deliver the car; and that Miller said lie should deliver the car, adding that Miller also said he would talk to Sharp about the matter, that on two or three previous occasions Sharp refused to de- liver cars at his request but he had never reported the incidents to Miller ; and that the only person in'the Respondent's employ with whom he ever had an argu- ment or disagreement was Sharp. Miller testified that at 4 o'clock on the afternoon in question, Heath called' him into the office; that before leaving the shop lie turned over his shop duties to Gonzalez, as he customarily did when he left the shop to confer with Heath, and reminded Gonzalez that all finished cars had to be delivered to the cus- tomers that day : that he returned to the shop at about 5:30; that "quite some time" thereafter Gonzalez informed him that Sharp had refused to deliver a car, adding that Sharp had said Gonzalez should "go to hell" ; that he "didn't "Since about January 1 , Sharps working hones were from 8 a. in, to 5 ao p ui. Prior thereto his hours were from 8 a ni to 10 p m 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do anything about it that night, but the next morning when [Sharp] came to work" he asked Sharp for his version of the incident ; that Sharp stated that he had been assigned to the lubrication rack that day and therefore it was Gon- zalez's duty to deliver the car; thit he told Sharp that he disagreed, adding that he told Sharp it was Sharp 's job to deliver the car ; and that after telling Sharp, "if you continue to have that attitude I positively cannot use you," he di'scharged Sharp. Miller further testified that he consulted Heath before discharging Sharp. On cross-examination , Miller testified that before going into Heath's office at about 4 : 00 on the afternoon of the Sharp-Gonzalez incident, he instructed Gonzalez to deliver the finished cars to the customers ; that Gonzalez had had occasional arguments with his fellow employees , especially with the mechanics, because they resented Gonzalez "overstepping his bounds" and giving them "orders"; that on several occasions the mechanics had complained to him about Gonzalez's officious manner ; that no one was ever discharged for using pro- fanity around the shop;" that on the night of the incident he discussed with Heath, Sharp's refusal to deliver the car ; that he then received Heath's per- mission to discharge Sharp ; and that the decision was reached without first hearing Sharp's version of the incident. The undersigned is convinced, and finds, Sharp's version of the April 11 inci- dent, and of his talk with Miller about it on April 12, to be substantially in accord with the facts . It is significant to note that Gonzalez did not deny Sharp's testimony that Gonzalez told Sharp that Engilman had questioned him about the incident . Furthermore , Gonzalez testified that he never had any quarrel with his coworkers , whereas Miller testified to the contrary. It is to be noted further that, according to Miller's testimony, Miller instructed no one but Gon- zalez to deliver the cars on the day in question. Moreover, Gonzalez testified that after Sharp had refused to deliver the car he immediately told Miller about it; that Miller then instructed him to deliver the car ; and that he delivered the car at about 4:45 p. in. On the other hand, Miller testified he was in con- ference with Heath from about 4 p. in. until after 5:30 p. in. and that "quite sometime after" 5 :30 p. in. Gonzalez told him about the incident , but did nothing about it that evening. The record clearly indicates, and the undersigned finds, that Sharp was marked for discharge or other disciplinary action as soon as the Respondent learned of his leadership in the Union. It is safe to infer that additional tasks were thrust upon Sharp in the expecta- tion that he would either quit his job or forsake the Union. When neither occurred , the Respondent seized upon the first complaint it ever received involv- ing Sharp to discharge him. This it did without first hearing his version of the incident although admittedly , it was Miller's custom first to hear both sides of the story before deciding what action to take with respect thereto. The .undersigned finds that Sharp's refusal to deliver the car was but a pretext seized upon by the Respondent to rid itself of the leaddr of the Union in the .shop. The undersigned further funds that it was Gonzalez' duty to deliver cars on April 11, and not Sharp's. The fact that the Respondent resented Sharp's leadership in the Union is further evidenced by Engilman 's admission that he disliked the fact that Sharp would meet officials of the Union in a restaurant located in the vicinity of the Respondent's place of business. 24 Engilman testified that one of the reasons for Sharp ' s discharge was his cursing Gonzalez by telling Gonzalez to "go to hell " BILL HEATH 799 Upon the basis of the above findings, and upon the record as a whole, the undersigned finds that Sharp was discharged on April 12, the day before the Board election, because of his membership and activity in behalf of the Union. By such discharge, the Respondent violated Section 8 (a) (3) of the Act. D. The alleged discrimination with respect to Jewel Norwood Within an hour after the Board-conducted election had been held, Norwood, the used car lot boy, brought an automobile into the service shop in order to wash and polish it. Before Norwood had an opportunity to work on the car, Miller ordered him to drive the car out of the shop and to wash and polish the car at the used car lot. I w _. The record indicates that on April 13, the date when the above incident oc- curred, there were facilities for washing and polishing cars at the used car lot similar in all respects to those at the service shop. Admittedly, it is more desirable for Norwood to wash and polish cars indoors and not in the sun. Miller testified that he disliked having Norwood work in the shop because of lack of space and for the further reason that Norwood was not under his juris- diction but was under that of the used car manager. It was for those reasons, Miller testified, that he ordered Norwood to perform his work at the lot. As far as the record discloses, Norwood did not have to obey Miller's instruc- tion and wash and polish the car at the lot, for, as Norwood testified, Leo Brawley, the used car manager, overheard Miller ordering him from the shop and interceded in his behalf and that Miller then rescinded his instructions. Upon the entire record, the undersigned is convinced, and finds, that Miller's instructions to Norwood, as summarized above, were not motivated by any anti- union animus and were not violative of the Act. Furthermore, there is no evi- dence in the record to show that the Respondent had any knowledge of Nor- wood's Union membership or activity at the time of the aforesaid incident or to show that Norwood voted for the Union at the aforesaid election. Accordingly, the undersigned will recommend that the allegations of the complaint that the Respondent attempted to, or did, discriminate against Jewel Norwood because of his membership and activity in behalf of the Union and because of his partici- pation in the Board-conducted election be dismissed. E. The alleged dzscrimanatory discharge of James Williams Williams was hired by the Respondent as a mechanic in March 1950, and was discharged on or about May 7. Sometime during his employment he joined the Union. The complaint alleged that he was discharged in violation of the Act. On May 1, Miller went to the union hall and complained to Gordon about Williams' faulty work After some discussion there about the matter, wherein Miller maligned the officials of the Union, Gordon accompanied Miller to the Respondent's service shop where the discussion continued in the presence of Williams and Sharp. During the latter discussion, Miller outlined to Gordon Williams' faulty work. Miller's specific complaint at that time was the manner in which Williams had repaired a car and had delivered it to the customer with little or no water in the radiator. Miller informed Gordon, during this, discussion, that within a short time after the customer had left the shop the customer called him on the telephone and told him that the car had overheated because of lack of water in the radiator and that he sent Williams to investigate the customer's complaint and to do what was necessary to put the car in good running order. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Gordon's testimony,2" Williams told him and Miller that when he reached the car in question he found sufficient water in the radiator and that the water therein was but lukewarm Williams further stated, according to Gordon, that he examined the car and noticed that the heat indicator had "be- 'come corroded . . and in removing it and replacing it 26 it became defective and showed that the car was very hot," when in reality the water was not hot. Miller testified that Williams' work was very unsatisfactory ; that lie had received an unusually large number of "come-backs" of cars on which Williams worked ; that he did not discharge Williams prior to May 1, nor reprimand Williams for performing faulty work prior to that'date, because he believed that Williams' work would improve; that when Williams' work showed no improve- ment he discharged Williams on or about May 7; and that Williams' union membership played no part in his determination to sever Williams' employment. Lemmond, a witness for the General Counsel, testified on cross-examination, and the undersigned credits his testimony, that he had seen "come-backs" of cars on which Williams had worked ; that he had repair ell cars that were brought back because of Williams' faulty repair work; that he told Miller that Miller would be entirely justified if he discharged Williams because Williams did not do his work properly ; and that after Williams had been discharged, lie told Gordon, "I didn't consider that Williams had any complaint at being dis- charged . . . I told him that f had seen [Williams'] come-backs, and that the various boys, other mechanics, had to do work over that he [Williams] per- formed-including myself" Lemmond also admitted that he had informed Gordon that the Union had no legitimate grievance with respect to Williams' discharge. The undersigned is convinced, and finds, that Williams' discharge was not unlawful but that he was discharged solely because he did not perform satis- factory work Accordingly, the undersigned will recommend that the allegations of the complaint with respect to Williams be dismissed. F. The alleged discharges of Milton Yablon, Met Kern brie!, and ille:candei Rosman Yablon, Kembriel, and Rosman worked in the Respondent's body shop, wherein they repaired and painted automobile bodies such as fenders, doors, frames, and the like On March 18, the Respondent discontinued its body shop and dis- charged the above-named three persons The complaint alleged, and the General Counsel contended at the hearing, that the Respondent's discontinuance of its body shop was for the purpose of discharging three known union adherents., Approximately a year prior to March 18, the Respondent and Michael Wayne, an operator of a body shop in North Hollywood, had engaged in negotiations by which Wayne was to take over all the Respondent's body work and, in turn, Wayne was to pay the Respondent a certain percentage of the labor cost charged the customer . These negotiations, as they developed, revealed the feasibility of having Wayne do the body work but the parties were unable to agree upon the percentage to be paid the Respondent. After many conferences between Wayne and Engilman covering a period of G months or more, they finally agreed in January or February 1950 upon the percentage Wayne was to pay the Respondent, the exact date, however, for the transferral of the body work to Wayne was not then determined. n:, Williams did not testify The General Counsel stated on the record that Williams was in the United States Army and stationed at an embarkation camp located in the State of Washington and unavailable to testify 26 Undoubtedly this happened when Williams fir st repaired the car ZY "Come-backs," the record shows, means customers returning the car because of faulty repair work BILL HEATH 801 Engilman, Heath , and Miller each testified that for a period of 18 months or more prior to January 1950, the body shop had not been a profitable enterprise for the Respondent ; that each month during the said 18-month period, the three of them would discuss the problem with the view in mind of remedying this serious matter ; that when Wayne agreed to pay the Respondent 20 percent of the labor cost charged the customer and also would purchase some of the Respondent's body shop equipment, they came to the conclusion that it would be a profitable deal to permit Wayne to do their body work They testified further that the space made vacant by the removal of the body shop has been utilized for additional mechanic stalls and room also became available for the parking of vehicles awaiting repairs Wayne's testimony with respect to the length of the negotiations, the time when the contract was consummated, the amount of compensation agreed upon, and the date of transferral of the work is in substantial accord with the testi- mony of Heath , Engilian , and Miller. Rosman testified that Miller told him about 2 days prior to March 18, that the body shop would be closed on that date and that he also told him his services would be no longer necessary after that date. Rosman also testified that when he asked Miller, "If it hadn't been for the union, the body shop would still been open, wouldn't it?" Miller replied, "Yes " While not specifically denying Rosman's above-quoted testimony, Miller testified that prior to the time the body shop was closed he told Rosman, Yablon, Kembriel, and other employees, "We will probably close the body shop. We cannot support it without more business or better management or something" On cross-examination, Rosman admitted that when lie first started his employ- ment with the Respondent, either Engihnan or Heath, or both, told him that they were thinking of closing the body shop because it as a losing proposition; that "occasionally" thereafter they repeated the same statement. The undersigned is convinced, and finds. that Miller did not snake the affirma- tive reply to ltosman's above-quoted question This finding is buttiessed by Yablon's admission that in December 1949, a month prior to the advent of the Union, lie heard "rumors" that the body shop was to be closed and that he "jokingly" discussed with Rosman the fact that the body shop "wasn't paying its way " The undersigned is not unmindful of Miller's statement to Sharp that by closing the body shop the Union lost three votes nor his statement to another employee that b3 its closing the Respondent had rid itself of three "union goats" or "union rogues " These statements do not indicate the reason or the motive for closing the body shop but merely indicates the end results At the behest of the Respondent, Wayne, on March 18, hired Kembriel and about 3 weelks thereafter he hired Rosman Upon the entire record in the case, the undersigned is convinced, and finds, that the Respondent did not discontinue its body shop for any discriminatory reason but did so for purely business reasons The General Counsel points to the fact that since the transfer of the body work to Wayne the Respondent has secured a great many orders for body work. This fact, standing alone, or even in conjunction with the other facts in the record, does not indicate the unlawful character of the transfer. Accordingly, the undersigned will recommend that the allegations of the complaint that Rosman , Kembriel, and Yablon were discriminatorily discharged be dismissed. IV THE EFFECT OF TILE UNFAIR I AiOii PRACTICES UPON CO`SJIERCE The activities of the Respondent set forth in Section III, above, occurring in connect.oi^ with the operations of the Respondent described in Section I, above, 9,53841-52-vol 94-52 802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, violating Section 8 (a) (1), (3), and (5) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has discriminated in regard to the hire and tenure of employment, and the terms and conditions of employment, of Dan Sharp, the undersigned will recommend that the Respondent offer to Sharp immediate and full reinstatement to his former or substantially equivalent position, 'R without prejudice to his seniority and other rights and privileges. The undersigned will also recommend that the Respondent make Sharp whole for any loss of pay he may have suffered by reasop of the Respondent's discrimi- nation against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages from April 12, 1950, to the date of the Respondent's offer of reinstatement, less his net earnings during that period ' Loss of pay shall be paid in accordance with the formula enunciated by the Board in F W. Woolworth, 90 NLRB 289 Having found that the Respondent has refused to bargain collectively with the Union as the representative of the majority of the employees in an appropriate unit, the undersigned will recommend that the Respondent, upon request, bargain collectively with the Union as the exclusive statutory representative of all the .employees in the unit herein found appropriate, and if an agreement is reached, embody such understanding in a signed agreement The 'scope of the Respondent's illegal conduct discloses a purpose to defeat self-organization among its employees. It sought to coerce them in the exercise of the rights guaranteed them by the Act by, among other things, refusing to bargain collectively with the statutory representative of its employees and by discriminatorily discharging Dan Sharp because of his union affiliations. Such conduct which is specifically violative of Section 8 (a) (1), (3), and (5) of the Act, reflects a determination generally to interfere with, coerce, and restrain its employees in the exercise of the right to self-organization to form, join, or assist labor organizations to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection, and presents a ready and effective means of destroying self-organization among its employees. Because of the Respondent's unlawful conduct and since there appears to be an under- lying attitude of opposition on the part of the Respondent to the purposes of the Act which is to protect the rights of employees generally,30 the undersigned is convinced that if the Respondent is not restrained from committing such conduct, the danger of their commission in the future is to be anticipated from the Respondent's past conduct, and the policies of the Act thereby will be defeated. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies, the undersigned will recommend that the Respondent 28 See The Chase National Bank of the City of New York, etc., 65 NLRB 827. 29 See Crossett Lumber Co , 8 NLRB 440 81 See May Department Stores Company, etc. v. N. L. R. B., 326 U. S. 376. BILL HEATH 803 cease and desist from.in any manner infringing upon the rights guaranteed in Section 7 of the Act. The undersigned will further recommend that the complaint be dismissed as to Norwood, Williams, Yablon, Kembriel, and Rosman. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists, District Lodge No. 727 is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All the Respondent's employees, excluding salesmen, office and clerical employees, professional employees, guards, and supervisors as defined by the Act, constitute, and during all tines material herein constituted, a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Association of Machinists, District Lodge No. 727, was on June 7, 1950, and at all times relevant thereafter has been, the exclusive rep- resentative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on June 28, 1950, and thereafter, to bargain collectively with International Association of Machinists, District Lodge No. 727, as the exclusive representative of all the employees in the appropriate unit, the Respondent has engaged in, and is engaging in, unfair labor practices, within the meaning of Section 8 (a) (5) of the Act. 5. By the said refusal the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices, within the meaning of Section 8 (a) (1) of the Act. 6. By discriminating in regard to the hire and tenure of employment of Dan Sharp, thereby discouraging membership in a labor organization, the Re- spondent has engaged in, and is engaging in, unfair labor practices, within the meaning of Section 8 (a) (3) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. 9. By discharging James Williams, Milton Yablon, Alexander Rosman, the Respondent did not discriminate with respect to the hire and tenure of their ,employment. 10. The Respondent did not discriminate, nor did it attempt to discriminate, with respect to hire and tenure of, or terms and conditions of, Jewel Norwood's employment. [Recommended Order omitted from publication in this volume.]