Howell Chevrolet Co.

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Recommendations Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, the Trial Examiner recommends that the complaint be dismissed in its entirety. HOWELL CHEVROLET COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS , DISTRICT LODGE No. 727 HOWELL CHEVROLET COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS , DISTRICT LODGE No. 727, PETITIONER. Cases Nos. 21-CA-794 and 21-RC-1146. July 23, 1951 Decision and Order On December 19, 1950, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto; and finding further that the Respondent had interfered with an election conducted by the Board among the Respondent's employees and recommending that the elec- tion be set aside. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief, and the General Counsel filed a brief in support of the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner and, finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions, modifications, and additions set forth below : 2 The Respondent is engaged in the sale and distribution, at Glendale, California, of new Chevrolet motor vehicles, parts, and accessories, under a dealer's agreement with Chevrolet Motor Division-General I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Houston, Murdock, and Styles] 2 The Respondent's request for oral argument is hereby denied as the record, the excep- tions, and the briefs, in our opinion, adequately present the issues and the positions of the parties. The Respondent, in its exceptions and brief, alleges that the Trial Examiner was biased and prejudiced against it We have carefully considered the entire record herein, and although, as noted hereinafter, we do not agree with all the Trial Examiner's conclusions, we find that the allegations of bias and prejudice are without merit. 95 NLRB No. 62. HOWELL CHEVROLET COMPANY 411 Motors Corporation. The agreement provides for certain controls as to the Respondent's capital requirements, place of business, hours, servicing facilities, personnel, signs, and local area advertising. The Respondent is one of a limited number of dealers selling Chevrolet products, and, by virtue of its contractual relationship with Chevro- let Motor Division-General. Motors Corporation, is an integral part of that corporation's national system of distribution.3 Under the f ore- going circumstances, and on the basis of the entire record, we find, as. did the Trial Examiner, that the Respondent is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction over the Respondent .4 2. The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (1) of the Act by the following conduct which occurred after the Union had requested recognition and before the election was held : (1) Body Shop Foreman Ogen's 5 coercive anti- union statements to employees Leonard, Kirkland, Smith, and Arnold, to the effect that employees who joined the Union would be discharged, and his interrogation of employee Smith about the latter's union mem- bership and activity; (2) President Howell's coercive antiunion state- ment to employee Hansen 6 to "vote in favor of the plant," and his promises of benefit to employees Smith and Skelton to the effect that if the Union were defeated the employees would receive a raise; (3) Service Manager Bordeau's promise to employee Skelton that if the Union were defeated, the employees would receive a raise; and his statement to employee Herrick, also heard by employee Smith, to the effect that if the Union were. victorious the Respondent would shut down its operations; (4) Attorney Potruch's address to the Respond- 3 The Respondent does not, however , as found by the Trial Examiner , have an "exclusive" franchise. 'Harbor Chevrolet Company, 93 NLRB 1811 ; University Motors , 89 NLRB 1224; Public Motors Co., 90 NLRB No. 273 ; Avedis Baxter and Ben Baxter, d/b/wwBaxter Bros., 91 NLRB 1480 ; N. L. R. B . v. Townsend , 185 F. 2d 378 , cert . den., 341 U. S. 909. " The Respondent alleges, in its brief, that Ogen was not a supervisor within the meaning of the Act . However, at the hearing , President Howell referred to Ogen as the body shop foreman . Furthermore , employee Smith , who did body and fender work, testified that Ogen was his foreman and that Ogen had told him , "He wouldn 't havd any union men working under him." Employee Arnold also testified that Ogen was his foreman. It is thus clear that Ogen was regarded by both the Respondent and the employees as a super- visor. Moreover, it was clear at the hearing that the General Counsel was seeking to attribute to the Respondent various acts of interference , which we have found violative of Section 8 (a) (1) of the Act, by virtue of Ogen 's supervisory status.. Yet the Respondent did not contend that Ogen was not a supervisor or come forward with evidence to rebut the testimony indicating that Ogen was a supervisor . In the light of the entire record, we find that Ogen was a supervisor within the meaning of the Act and that his conduct was attributable to the Respondent. 8 The record shows that among the "other things " referred to by the Trial Examiner which Howell told Hansen before the election was a statement that if Hansen would vote In favor of the Respondent "he [Howell ] would see that we got a raise in time." We had this-statement also violative of Section 8 (a) (1). 412 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD ent's employees in March or April 1950.7 In finding that this speech violated Section 8 (a) (1), we do not rely on Potruch's declarations that the Respondent would contest the jurisdiction of the Board 8 Nor do we accept the Trial Examiner's finding that Potruch's remarks to groups of employees about 2 weeks before the election violated Sec- tion 8 (a) (1).9 These talks were primarily concerned with explain- ing the mechanics of marking the ballots in the forthcoming election. Potruch's comments regarding the Union's alleged rough tactics with regard to another employer, and his threats to repay the Union in kind, concerned Potruch's personal retaliation for such tactics and for alleged derogatory remarks about him in a union pamphlet, and did not imply any retaliation directed against the Respondent's employees. Nor do we adopt the Trial Examiner's observations regarding the legislative history and purpose of Section 8 (c) of the Act. We do find, however, that Potruch's statement at one of these group meetings, as testified to by employee Smith, who was generally credited by the Trial Examiner, that "there would be-a new deal after the first of the month," 10 was a promise of benefit violative of Section 8 (a) (1) of the Act. 3. The Trial Examiner found that employee Leonard was dis- charged on March 31, 1950, because of his membership in and activi- ties on behalf of the Union, and because he gave testimony in the representation proceedings herein, and that the Respondent thereby violated Section 8 (a) (3) and (4) of the Act. Upon an examination of the entire record herein, including the testimony of the witnesses at the representation hearing, we are of the opinion, however, that the record does not establish that Leonard's testimony, as distinguished from his. union membership and activity, was a motivating factor in his discharge. Accordingly, we shall dismiss the complaint insofar as it alleges that Leonard's discharge violated Section 8 (a) (4) of the Act. We are convinced, however, that Leonard was discharged because of his leadership in union activities among the Respondent's employees, as set forth in the Intermediate Report, and we therefore 7In its exceptions and brief, the Respondent alleges that Potruch's statement that "someone might have to be discharged either on a friendly basis or even deliberately" merely referred to one of the means whereby an employer may test the Jurisdiction of the Board. However , this did not preclude the clear implication that Howell might resort to the discharge of its employees for this purpose. Moreover, the coercive effect of this statement was not dissipated by Potruch's declaration that employees could not be legally discharged except for economic reasons or for cause. 8 The effect of this statement on the election and its weight as a defense to a refusal to bargain are discussed separately hereinafter. 9In finding that Potruch's "two speeches" violated Section 8 (a) (1), the Trial Examiner apparently had reference to the talk repeated to several groups of employees about 2 weeks before the election as the second speech. 10 The election was held on June 1, 1950. HOWELL CHEVROLET COMPANY 413 find, as did the Trial Examiner, that the Respondent by discharging him violated Section 8 (a) (3) of the Act 11 4. The Trial Examiner found, and we agree, that the Respondent refused to bargain with the Union in violation of Section 8 (a) (5) of the Act; 12 and also that the election of June 1, 1950, did not represent the free and uncoerced choice of the Respondent's employees and should be set aside. We date the Respondent's refusal to bargain, however, from February 1, 1950, when the Respondent received the Union's request for recognition, and not, as did the Trial Examiner, from January 31,1950, when the Union achieved a majority and mailed its recognition request to the Respondent. Upon receipt of the Union's request for recognition, which the Re- spondent ignored, it promptly embarked on a campaign of unfair labor practices, which included interrogation of its employees concerning their union membership and activity, threats of reprisal against them if they joined the Union or selected it as their bargaining representa- tive, promises of benefit if they rejected the Union, and the discharge of employee Leonard because, as we have found, of his union member- ship and activity. Nor did the Respondent fail to respond to the Union's request for recognition because it was awaiting the outcome before the Board of the representation proceeding. On the contrary, the Respondent told its employees that the Board did not have juris- diction over its operations, and that it would not abide by the Board's determination in that proceeding if the Board resolved the jurisdic- tional issue against the Respondent, but would litigate that issue to the Respondent's "last dollar" through the Supreme Court, if necessary. Under the foregoing circumstances, and on the basis of the entire record, we are convinced that the Respondent did not withhold recog- nition of the Union because of a good faith doubt of the Union's majority in an appropriate unit 13 We find, on the contrary, that the Respondent's refusal to recognize the Union on February 1, 1950, and thereafter, was motivated by a desire to gain time in which to destroy the Union's majority, and by a rejection of the collective bargaining ' In arriving at this conclusion, we do not , however, adopt the Trial Examiner 's remarks that tinder the circumstances , "it was incumbent upon the Respondent to produce its records or other reliable evidence, in place and stead of the more statements of Howell and Bordeau , to prove that Leonard 's discharge was necessitated by economic reasons." 12 Although Member Murdock would dissent from this finding for the reasons stated in his dissenting opinion in the M. H. Davidson Company ease , 94 NLRB 142 , he considers himself bound by the majority's decision in that case. 1' We also note in this connection Potruch's testimony that in the course of his address to the employees in March or April 1950 , he told them "that I would not have gone out and paid anybody to go in and represent me tint!] I first had the opportunity to do my own talking," and "that it had gone too far for any of the men to do that ; that they had selected voluntarily somebody to represent them and that person would do all their talking for them at any time they wanted to." 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD principle 14 Furthermore, we do not regard the Respondent's asserted desire to contest the Board's jurisdiction as a defense to its refusal to bargain with the majority representative of its employees.15 5. 1 T have found that Attorney Potruch's statements to the Re- spondent's employees that the Respondent would contest the jurisdic- tion of the Board did not violate Section 8 (a) (1) of the Act. How- ever, we find that these statements were calculated to impress upon the Respondent's employees the futility of voting for the Union and that the Respondent thereby, as well as by the conduct which we have found violated Section 8 (a) (1) and (3), created an atmosphere incompatible with the freedom of choice of its employees in their selection of a bargaining representative, thus interfering with the electionl° The Respondent urges, however, that by proceeding with the election herein with knowledge of the Respondent's interfer- ence with the election, the Union waived its right to have the elec- tion set aside. We find this contention to be without merit. As no genuine question concerning representation existed at any time by reason of the Respondent's bad- faith in refusing. to recognize the Union, we regard the election as a nullity and shall set it aside .17 The Remedy As recommended by the Trial Examiner, we shall order the Re- spondent to offer to the discharged employee listed in our Order rein- statement with back pay from the date of the discrimination against him. However, the Board has recently adopted a method of comput- ing back pay different from that prescribed by the Trial Examiner.18 Consistent with that policy, we shall order that the loss of pay be com- puted on the basis of each separate calendar quarter or, portion thereof during the period from the Respondent's discriminatory action to the date of reinstatement, or a proper offer of reinstatement. The quar- terly periods, hereinafter called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be de- terinined by deducting, from a sum equal to that which this employee would normally have earned for each quarter or portion thereof, his net earnings,19 if any, in other employment during that period. Earn- 14 Joy Silk Mills v. N. L. R. B., 185 F. 2d 732 ( C. A., D. C. ) ; N. L. R. B. v. Everett Van Kleeck & Company, Inc., 189 F. 2d 516 (C. A. 2). Indicative of the Respondent's attitude toward collective bargaining are Potruch's statements to the employees in the latter part of April 1950 that if they had any problems they could take them to Howell , who would straighten them out, that if he did not they should take a rope and hang him, and that the Respondent didn't like a group of men In Washington telling it how to run its business. Is The Strang Garage Company , 93 NLRB 900. 16 Metropolitan Life Insurance Company, 90 NLRB 935. 17 The M. H. Davidson Company, supra. Is F. W. Woolworth Company, 90 NLRB 289. 19 Crossett Lumber Company, 8 NLRB 440, 497-8. HOWELL CHEVROLET COMPANY 415 ings in one particular quarter shall have no effect upon the back=pay liability for any other quarter. We shall also order, in accordance with the Woolworth decision, supra, that the Respondent, upon request, make available to the Board and its agents all records necessary to analyze the amount of back pay due and the right of reinstatement under the terms of our Order. Order Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the Respondent, Howell Chevrolet Company, Glendale, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists, District Lodge No. 727, or 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) By means of interrogation, threats of reprisal, promises of benefit, or in any other manner, interfering with, restraining, or coerc- ing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Association of Machinists, District Lodge No. 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 the exercise of such rights. (c) Refusing, upon request, to bargain collectively with Interna- tional Association of Machinists, District Lodge No. 727, as the exclu- sive representative of all its employees at its Glendale, California, plant, excluding salesmen, office and clerical employees, professional employees, guards, and supervisors as defined by the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Asso- ciation of Machinists, District Lodge No. 727, as the exclusive repre- sentative of all the employees in the above-described appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to Claude Leonard immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights or privileges. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Make Whole Claude Leonard, in the manner set forth in the section entitled "The Remedy," for any loss of pay which he may have suffered by reason of the Respondent's discrimination against him. (d) 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 records necessary to analyze the amount of back pay due and the right of rein- statement under the terms of this Order. (e) Post in its plant at Glendale, California, copies of the-notice attached hereto and marked "Appendix A."20 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, '.shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter in conspicuous places, in- eluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the election in Case No. 21-RC-1146 be set aside, and that the petition therein be, and it hereby is, dismissed. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent violated Section 8 (a) (4) of the Act, be, and it hereby is, dismissed. Appendix A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE, WILL NOT discourage membership in INTERNATIONAL Asso- CIATION or MACHINISTS, DISTRICT LODGE No. 727, or in any other labor organization of our 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. WE WILL NOT by means of interrogation, threats of reprisal, promises of benefit, or in any manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist INTERNA- 20 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted in the notice, before. the words , "A Decision and Order,",the words, "A Decree of the United States Court of Appeals Enforcing." HOWELL CHEVROLET COMPANY 417 TIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No. 727, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities except to the extent that such rights may be affected by 'an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to Claude Leonard immediate reinstatement to his former or substantially equivalent position without prejudice to seniority or other rights and privileges previously enjoyed, and will make him whole for any loss of pay he may have suffered as a result of the discrimination against him. WE WILL bargain collectively, upon request, with the above- named union as the exclusive representative of all our employees in the bargaining unit described herein, with respect to rates of pay, wages, hours of work, or other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All our employees, excluding salesmen, office and clerical employees, professional employees, guards, and supervisors as defined by the National Labor Relations Act. All our employees are free to become, or refrain from becoming members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employees because of member- ship in or activity on behalf of any labor organization. HOWELL CHEVROLET COMPANY, Employer. By --------------------- ----------- Dated -------------------- (Representative) (Title) This notice must remain posted for 60 days from date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF TIIE CASE Upon a petition duly filed on January 31, 1950,' 'by International Association of Machinists, District Lodge No. 727, herein called the Union, the National 1 Unless otherwise noted all events referred to herein occurred in 1950. 418 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Board, herein called the Board , held a bearing, on March 15 to determine whether the employees of Howell Chevrolet Company, Glendale, Cali- fornia, herein called the Respondent , desired to be represented . by the Union for the purposes of collective bargaining . Thereafter and on May 5, the Board issued an order 2 directing that an election be conducted among the Respondent's employees in a certain appropriate unit under the auspices of the Regional Di- rector for the Twenty-first Region ( Los Angeles , California). On June 1 the said election was held and the Union lost the election! The Union, on June 7, filed objections to the conduct of the election, and on August 9, the then Acting Regional Director for the Twenty-first Region issued his report on the objections finding that the aforesaid objections raised substantial and material issues and recommended that a hearing be held to resolve said issues. No exceptions were filed by any of the parties to the said Acting Re- gional Director's recommendations . The Board , by order dated August 29, adopted the aforesaid recommendations and ordered a hearing to be held for the purpose of resolving the issues raised by the Union's objections. Upon a charge and an amended charge duly filed on June 6 and, July 26, re- spectively, by the Union; the General Counsel of the Board, herein called the General Counsel , issued his complaint ' on September 15, alleging that the Re- spondent had engaged in, and was engaging in, unfair labor practices affecting commerce, within the meaning of Section 8 (a) (1), (3), (4), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, charge, amended charge, Union's objections to the election, the Acting Regional Director's report with respect thereto, the Board's order directing a hearing on the said objections, together with notice of hearing on the complaint and on the objections, were duly served upon the Respondent and upon the Union. With respect to the unfair labor practices, the .complaint alleged, in sub- stance, that the Respondent (1) discharged Claude Leonard on or about March 31, and thereafter refused to reinstate him because of his membership and activi- ties in behalf of the Union and because he testified as a witness at a, formal hearing in Howell Chevrolet Company and International Association of Machin, i.sts, District Lodge No. 727;" (2) since on or about January 31, refused to bar- gain collectively with the Union although the Union previously had been desig- nated and. selected the collective bargaining representative by the Respondent's employees in a certain appropriate unit as such representative; and (3) engaged in certain stated conduct and made various statements which interfered with, coerced, and restrained its employees in the exercise of the rights guaranteed in Section 7 of the Act. On September 22, the Respondent duly filed an answer denying the commis- sion of the alleged unfair labor practices. On October 30, the Respondent duly filed an "Answer to the Amendment to Complaint." Pursuant to notice, a hearing was held from October 31 to November 3, 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. 2 89 NLRB 1189. 3 Of the 26 valid votes cast , 11 were cast for the Union , 13 against , and 2 were challenged. " On October 6, the General Counsel ' served upon the Union and upon the Respondent "Amendment to Complaint" wherein he alleged that Leonard was discriminatorily refused his regularly scheduled work during February and âlarch 1950. HOWELL CHEVROLET COMPANY 419 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. At the conclusion of the General Counsel's case-in-chief, the Respondent's motions to dismiss the complaint in its entirety or, in the alternative, to dismiss certain stated portions thereof, were denied. At the conclusion of the taking of the evidence, the General Counsel moved to conform: the pleadings to the proof with respect to minor variances, but not to include any new unfair law practices, which motion was granted without objection. Counsel 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 18.' Briefs have been received from the Respondent and from the General Counsel which have been carefully considered by the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Howell Chevrolet Company, 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 Glendale, California, for the service, sale, and distribution of new Chevrolet automobiles, trucks, acces- sories, and parts under an exclusive franchise or dealer's agreement with the Chevrolet Motor Division-General Motors Corporation. The Respondent also operates a used car lot which is located across the street from its main show- room and service station. During 1949, the Respondent purchased from the Chevrolet Motor Division- General Motors Corporation new Chevrolet automobiles and trucks valued at $960,797.97 and parts and accessories valued at $129,145.01. In addition, dur- ing 1949, the Respondent purchased from sources other than Chevrolet Motor Division-General Motors Corporation-parts and accessories valued at $36,- 240.35. During. the same year, the Respondent's sales of new Chevrolet cars and trucks amounted to $1,246,812.50 and sold parts and accessories valued at $256,850.62. The Chevrolet Division-General Motors Corporation-maintains a new car and truck assembly plant at Van Nuys, California, from which the Respondent obtains its new cars and trucks. For the fiscal year ending September 30, 1950, motor vehicle production parts, parts, and accessories valued in excess of $5,000,000 were shipped to the said Van Nuys plant, of which amount approximately 43 percent was shipped from points located outside the State of California. During the aforesaid fiscal year, the Respondent's purchases from Chevrolet Motor Division-General Motors Corporation-amounted to more than $1,500,000 but were less than $2,000,000. All the Respondent's sales of automobiles, both new and used, parts, and ac- cessories, 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 ' Subsequently the time was extended to December 6. 961974-52-vol. 95-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so engaged, the Board nonetheless should not assert its jurisdiction because of the local character of the Respondent's business. For the reasons set forth by the Board in the Baxter Bros. case, 91 NLRB 1480, the undersigned finds the. contention to be without merit e Upon the basis of the entire record, the undersigned finds that during all times material herein the Respondent was, and now is, subject to the Board's jurisdiction and that it will effectuate the policies of the Act for the Board to assert its jurisdiction. If. THE ORGANIZATION INVOLVED 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 May 5, 1950,' that all employees of the Respondent at its es- tablishment in Glendale, California, excluding salesmen, office and clerical em- ployees, professional employees, guards, and supervisors as defined by the Act, constituted a unit appropriate for the purposes of collective bargaining.' In its answer the Respondent neither denied nor admitted that such unit was appropriate. Under the circumstances, the undersigned finds that all employees of the Respondent at its establishment in Glendale, California, excluding sales- men, office and clerical employees, professional employees, guards, and super- visors as defined by the Act, at all times material herein constituted, and now constitute, a unit appropriate for 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 majority status of the Union in the appropriate unit At the hearing herein, there was introduced in evidence by the General Counsel a list prepared by the Respondent containing the names of all. the Respondent's employees in the unit hereinabove found appropriate. The list shows that on February 1 ° the Respondent had in its employ 28 persons in the said unit.1° On behalf of the General Counsel there were offered and received in, evidence 20 signed cards expressly authorizing the Union to represent the ° See also N. L. R. B. v. M. L. Townsend, 185 F. 2d 378 (C. A. 9). 7 89 NLRB 1189. 8In the representation case the' Board rejected the Respondent's contention that the appropriate unit should consist only of employees who are supervised by its service manager. ° It was stipulated by counsel that the persons whose names appeared on this list were also in the Respondent's employ on January 31. 10 The list also contains the name of Frank Ogen. This person, the record clearly shows and the undersigned finds, was, at all times material herein, a supervisor within the mean- ing of the Act and hence is excluded from the unit. The General Counsel's contention that bred Bordeau should he excluded from the unit on the sole ground that he is the son of the Respondent's .service manager is without merit. The undersigned includes Fred Bordeau in the unit. HOWELL CHEVROLET. COMPANY 421 signers for collective bargaining. The genuineness of the signatures on the cards was in some instances proved directly by the testimony of the signers and in some instances by witnesses to the signatures. The authenticity of the signa- tures appearing on the cards was not challenged. The undersigned has compared the names appearing on the aforesaid cards -with the list submitted by the Respondent and received in evidence and finds that as of January 31, 1950, 14 employees in the appropriate unit had signed cards designating the Union as their collective bargaining representative." Claude Leonard testJ[fied without contradiction that he joined the Union on or about January 23. On January 30 Leonard attended a meeting of the Union, and there he was elected senior chairman or shop-steward by his coworkers who attended the meeting. The undersigned accordingly finds that on January 31, 1950, and at all times thereafter, the Union was the duly designated collective bargaining representative of the Respondent's employees in the unit found appropriate. Pursuant to Section 9 (a) of the Act, the Union was, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment. and other conditions of employment. 3. The refusal to bargain As found above Claude Leonard joined the Union about January 23. At a meeting held at the union hall on the evening of January 30, six employees of the Respondent signed cards designating the Union their collective bargaining representative. They, also selected or elected Leonard senior chairman or shop steward. The following morning, January 31, the eight employees who attended the union meeting appeared at work wearing union buttons; Leonard's button bore the inscription "Senior Chairman." Prior to the commencement of work that day Leonard secured the signatures of four additional employees to authoriza- tion cards. Three other employees signed authorization cards sometime during that day. Under date of January 31, after 15 of the 28 employees in the appropriate unit had either joined the Union or had designated the Union their collective bargaining representative, the Union wrote the Respondent that it had been designated the collective bargaining representative by a majority of the Respond- ent's employees and requested recognition. The letter concluded with a request that the Respondent fix a convenient time for a conference to discuss a collec- tive bargaining agreement. The Respondent admittedly received the letter on February 1, and admittedly did not answer it. On January 31, the.Union filed with the Board a representation petition. The Respondent's immediate reaction to the employees' activities on behalf of the Union was to embark upon a campaign to destroy the Union's majority by demonstrating to its employees the futility of becoming, or remaining, members thereof. Thus, according to the undenied and credible testimony of Leonard lie had a conversation with Body Shop Foreman Frank Ogen sometime about a week or so after January 31, wherein the following ensued: Well, I was out there in the body shop one day at noon; and he (Ogen) told me to get away from him with that button on. He didn't want to get fired. So I told him there wasn't anybody going to get fired o er the n One of these 14 employees signed a card on January 28, 6 signed on January 30, and 7 .signed on January 31. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD buttons. He said that Mr. Howell (Jackson Howell, the Respondent's president) told him he was going to fire anyone that joined the union." George A. Kirkland, who was formerly employed by,the Respondent as a mechanic for approximately 5 years prior to October 1950, and presently self- employed, testified that sometime during the first week in February,. he and Leonard asked Ogen where Ogen "got-his information that all the employees that joined the union were going to be fired," and that Ogen replied that he had received the information from Howell the previous night. Former employee George A. Smith testified, and the undersigned finds, that Ogen asked him several times prior to the Board-conducted election of June 1, what he "was going to do about the union" and whether he "was in the Union" ; that on one occasion before the said election, Ogen asked him if George Kirkland had induced him to join the Union; and that on another occasion; prior to the 'election, Ogen told him that "any man that joined the union would be fired," adding, to quote Smith, "He never did work in a union shop ; he never would. He wouldn't have any union men working for him." Paul Arnold, a former employee of the Respondent, testified credibly that a day or two after January 31, he asked him [Ogen] what he thought about the guys going in [the Union], and he said they had better watch out for their jobs, because Howell said to fire them all that are wearing buttons. Arnold further testified that a few days after the above-related conversation he voluntarily left the Respondent's employ. In the latter part of March or in the early part of April, all the shop employees were assembled by the Respondent. Howell opened the meeting, introduced Frederick A. Potruch, Esq., as the Respondent's counsel, and then told the assembled employees that Potruch would outline to them the Respondent's labor relations policies. Regarding what he told the employees, Potruch testified, in part, as follows: I told them that the Company would test the jurisdiction of the National Labor Relations Board. I told them that it had been done on other occa- sions ; that they were probably aware of that and had been told so by the union. * . . . that I felt that if there was anything to be done by the company and the union that they were big enough to do it for themselves without having anyone step in and tell them what to do and not what to do as put in the Act, and I have named the Act, the Taft Hartley Act . . . After I presented that to them I went into the ramifications of how the jurisdiction of the Board could be decided. I told them that this was a representation proceeding, that the union was asking that they represent the men to bargain collectively, and that it was at these proceedings that 12 Ogen did not testify. Howell denied that he made the statement Ogen attributed to him. Howell's denial does not, and cannot , negate the violative tenor of Ogen 's remarks or their coercive effect. Respondent's counsel contended in their brief, for the first time, that Frank Ogen was not in fact a supervisory employee, and that, consequently, the Respondent could not be held accountable for the latter 's conduct and statements. The record fails utterly to support this contention. On the contrary, Howell admitted that Ogen was the body shop foreman in February and March 1950. The record, moreover, clearly shows that the employees regarded Ogen as foreman of the body shop and took orders from him. The fact that Bordeau was general service manager during that time did not alter Ogen's status nor his powers. HOWELL CHEVROLET COMPANY 423 we would deny the jurisdiction of the Board; that there would be a formal hearing, that we would have to run through the gamut of a formal hearing ; and I told them that we would still stick to our guns on the question of jurisdiction at all times , just as we have done in these proceedings. And I told them the only way we could get an adequate test on the question of jurisdiction, if it was to go that far, would be to go into the Circuit Court of Appeals as had been done in the -Townsend case; * * * * * * * It might even necessitate-that for any company not necessary Howell, to get a case into the United States Circuit Court of Appeals , it might be necessary to do something to be cited for an unfair act under the National Labor Relations Act that someone might have to be discharged , either on a friendly basis or even deliberately and then the charge brought . . . * * * * * * And then we would have a hearing on. it as we are now having . . . * * * * * * * I also told them that it was possible for a company . . . that during this period in which there was either a friendly unfair labor charge or an unfair labor act or even a deliberate one . . . that it is possible to have what is known as an unfair labor strike . . . Potruch also told the assembled employees that he would fight the case to Howell's last dollar. Kirkland testified that Potruch stated at this meeting that the employees did not need a union inasmuch as it was a small establishment ; that the employees would never get a union contract from Howell ; that the employees would have to go out on strike to obtain a contract ; and that the Respondent would not make any change in wages or other working conditions unless the Respondent con- sulted the Union, adding "by God the company wouldn't do that." Other wit- nesses called by the General Counsel corroborated , in the • main, Kirkland's version of what Potruch said at the aforesaid meeting. Potruch denied making the statements to the effect that the Respondent would not sign an agreement with the Union which statements were attributed to him by Kirkland and others. The undersigned rejects Potruch's denials and finds, on the other hand, that he made the said statements . The entire purport of Potruch's remarks, even on the basis of his version , as reflected by his testimony, was to impress upon the employees that it was futile for them to become, or remain, members of the Union because the Respondent would not bargain with the Union or recognize it as the collective bargaining representative of the employees. The fact that Potruch told the employees that, even if the Union won the election, the Respondent would not bargain with the Union is implicit in the following question propounded under cross-examination, to former em- ployee Lee Fitzhugh by the Respondent's counsel : Don't you remember him [Potruch ] saying that the way that they would get the question to the test of the court would be-and the only way-that the company would have to refuse to bargain ? That way they could get themselves before the court for review of the question of jurisdiction? Fitzhugh replied to the above -quoted question , "I believe he said something to that effect, sir." A similar question was propounded by counsel for the Re- spondent to Kirkland and he answered , "Yes." 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Each and every phrase of Potruch 's address was designed to impress upon the employees that continued union affiliation was a fruitless gesture and that they could rely upon the Respondent 's unilateral generosity to attain their economic ends. This finding is buttressed by Potruch's statement, made during the course of the meeting , "if I was an employee that I would go to the em- ployer, state my problems to him and see what I could work out with him; and. if the employer , to quote, was `a son-of-a-bitch', and wouldn't do anything for me I would go out and hang him. . . This finding is also supported by Potruch's. repeated statements that he would fight the matter through all the courts in the land. The most reprehensible portion of Potruch's remarks was his statement that the Respondent would not hesitate to discharge an employee for union activities in order to bring the matter before the courts." In a recent case," the Board held that a publicized intention under circum- stances similar to those in the instant case, to contest matters through the courts, was in itself a proscribed act. In that case the Board said : We agree with the Regional Director 's finding that the Employer's an- nouncement that it would not bargain with U. O. P. W. A. was reasonably calculated to impress upon the employee the futility of voting for 'U. O. P. W. A. They were haunted with the prospect , if U. O. P. W. A. were certified, of having no collective bargaining relationship with the Employer for several years pending a final judicial determination of U. O. P. W. A. status. In our opinion this prospect tended to defer the agents from exer- cising a free choice in the selection of a bargaining representative... . Accordingly, we, shall overrule the exceptions of the Employer and shall order all six elections set aside. About 2 weeks prior to the Board-conducted election , Potruch again visited the plant and held meetings with small groups of employees in Bordeau 's private office. There were five such meetings . At each of these meetings , Potruch first instructed the employees how to mark their ballot at the forthcoming Board election . He then said that he intended to sue the Union for libel and would tie up every union bank account in the United States . He further stated that the Union had used gangsters with respect to organizing other automobile dealers and that if the Union wanted to play rough he would play rough also. The Respondent's counsel contended in their brief that Potruch's statements to the employees were protected by Section 8 (c) of the Act. Insofar as pres- ently relevant , that section provides that - "The expressing of any views, argu- ments, or opinion . . . shall not . , . be evidence of an unfair labor prac- tice . . . if such expression contains no threat of reprisal or force or promise of benefit." The legislative history of the Act in silhouette against the contem- porary background , clearly indicates that the objective of Section 8 (c) was to preclude an inference of unfair conduct from an unconnected statement of atti- tude alone. It was not designed to preclude . as here, consideration of connected, immediate relevant utterances. Viewed in this light, Potruch's remarks at each meeting with the employees were violative of the Act. Assuming, arguendo , that Potruch's remarks to the employees did not in them- selves contain any such threat of reprisal or force or promise of benefit, that fact, standing alone, would not bring the remarks within the purview of Section 8 (c) for, as the legislative history of the Act shows , the Congress did not intend 13 Leonard, as found below , was, In fact , discriminatori] y discharged. 14 Metropolitan Life Insurance Company , 90 NLHI3 935. HOWELL CHEVROLET COMPANY 425 that the threats and promises of benefit which remove expressions of views and opinions from the protection of that section must necessarily appear in the context of such statement. It was not, moreover, the intention of the Congress to preclude a consideration of threats or promises of benefits where, as here, they are implicitly and inextricably a part of the conduct in question." Former employee Boyce Skelton testified that about 2 weeks before the Board- conducted election, Howell told him, during the course of a conversation he had with Howell, "if the union was defeated, why, everybody would get a raise." Former employee William F. Hansen testified that a few days prior to the aforesaid election Howell came to the place where he worked and said to him, among other things, to "vote in favor of the plant" at the forthcoming election and that he replied, "I will do my best." George A. Smith, a former employee, testified that several days before the afore- said election, Howell came up to where he was working and engaged him in a conversation, during which Howell stated, to quote Smith, "he didn't want the National Labor Board in there to tell him how to run his business." Smith further testified that during the said conversation Howell also said that .if the Union was defeated at the election the Respondent would raise the mechanics' commissions from 40 to 50 percent. Howell denied making the statements attributed to him by Skelton, Hansen, and Smith. The three last named impressed the undersigned as honest and forthright witnesses. Howell did not so impress the undersigned. It was very evident to the undersigned, from Howell's demeanor on the witness stand, that Howell was withholding the true facts. Under the circumstances, the under- signed finds that Howell made the statements attributed to him by Skelton, Hansen; and Smith. As a matter of fact, within a few days after the election, Howell announced, at a banquet given the employees by the Respondent, a general wage increase which included a raise in commissions for mechanics to 50 percent. Skelton testified credibly and without contradiction that about a week or two before the election, Service Manager Bordeau said to him and a group of about three to five other employees, during the course of a conversation, "if the union was defeated that everyone would get a raise." Smith testified that about 2 weeks before the election lie heard Bordeau tell employee Kenneth Herrick, "if the union went in Howell would shut his doors." With respect to his conversation with Herrick, Bordeau testified that one eV4ening while he was in a bar and grill near the plant, the following ensued: Well, I was in there first. He [Herrick] came in and sat down beside me, and he said, "Chub, what about this union? What are we going to do about this union deal?" And I said, "Well, Kenny, there is nothing to do about it but use your head. You do whatever you see tit, whatever you think is best for you." Herrick's testimony on this point, on direct examination by Respondent's counsel, is as follows : Q. Now, there has been some testimony, Mr. Herrick, about an occasion in a place called the Playhouse Bar and Grill in our fair city of Glendale, at which time Mr. Bordeau was there, you were there, and a fellow by the name of Mr. George Smitll was there. Do you remember that occasion? 16 See 93 Cong. Rec. 4261, 3950, 6601, 6603, 6604-5, 6673, 7002; Sen. Rep. No. 103, 80th Cong., 1st Sess. p. 23; House Rep. No. 510, 80th Cong., 1st Sess. pp. 43, 45; House Rep. No. 245, 80th Cong., 1st Sess. p. 33. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Not exactly that one occasion. It might have been a couple of different times. Q. All right. Do you remember speaking to Mr. Bordeau in a bar about the union? A. Well, I wouldn't say that we spoke about the union-I mean, it may have been brought up-but not especially. Q. Do you recall such a conversation? A. Not exactly, no. Q. Do you recall ever saying anything to Mr. Bordeau in a bar about a union? A. No. The only thing, if anything was ever said, was that we would have-we were privileged to vote any way we wanted. Q, You remember something like that did occur? A. It could have, yes, sir. Q. You recall who were present besides you and Mr. Bordeau? A. I do not; there were sometimes maybe four or five or six or seven of the boys who happened to stop there after work. Q, What did you say to Dir. Bordeau and what did he say to you? A. That I do not remember. Q, You do not recall the substance of any of the conversations on these occasions? A, Definitely not. Q, I will ask you for the purpose of refreshing your recollection if you did not ask Mr. Bordeau what to do about the union question-that, or that in substance. Now, just answer that question yes or no. A, Well now, I do not think I would ask anybody what to do about the union because that is my own privilege. Q, Mr. George Smith has testified that on occasions in the Playhouse Bar, at which you were present, Mr. Bordeau was present and Mr. Smith was present, that Mr. Bordeau said to you that if the union organized the Howell shop, that Mr. Howell would close it down. Did any such conversation ever take place? A, I do not believe it did. Upon the entire record in the case, the undersigned is of the opinion, and finds, that Smith's version of the Bordeau-Herrick conversation to be substantially in accord with the facts. Potruch testified that sometime between February 8 and 14, at an informal conference held at the Board's Regional Offices at which were present, besides himself, one or two field examiners of the Board and one or more union repre- sentatives, he stated that he did not believe that the Union represented the majority of the Respondent's employees in the appropriate unit. He also testified that the Union did not then, nor since, show him, the Respondent, or any other representative of the Respondent, any evidence of its majority status. Regarding this informal meeting, Edward Al. Skagen, a Grand Lodge repre- sentative of the Union, testified on direct examination by the General Counsel, as follows : Q. Mr. Skagen, there has been some testimony here that there was a conference held, an informal conference, held in the National Labor Re- lations Board's office in the month of February with Mr. Fred Davis, a Board Field Examiner and Mr. Potruch concerning the Howell Chevrolet case. Did you ever attend such a conference? A. Yes, I did. Q, And when was that? HOWELL CHEVROLET COMPANY 427 A. As I recall, it was in the month of February and I believe the exact date would be around February the 6th. Q. Will you tell us who was present there? A. Well, there were two Field Examiners from the National Labor Re- lations Board. One was Mr. James Carr and the other one ' was Mr. Fred. Davis and Dir. Frederick A. Potruch , myself and I am not certain but I believe Tiny Gordon and John Foote were present . I am not sure about the latter two , however. Q. Will you tell us what took place at that conference? A. Well, there was a mixup that morning . Mr. James Carr had a case called Standard Coil Company of which Frederick A. Potruch was the attor- ney, and we went down into Mr. Davis ' office because we thought we could consolidate both cases. Trial Examiner MYERS. Who is "we"? The WITNESS . The group of us, Frederick A. Potruch, myself, Mr. Carr. We went down there and found Mr. Davis in his office on the sixth floor of the National Labor Relations Board. The reason I remember it so well is because Mr. Potruch was sitting on the edge of the table and he says, "I am going to surprise you. I am going to consent to an election. We admit that we are in commerce," and the commerce factor had been a big factor in these automotive cases at that time. Then Mr. Potruch throws his hands up and says, "Da-dee -da-dee-da." All of us were very surprised . I would say that everybody in- cluding the Field Examiner was speechless because he had admitted commerce. Then I says, "Oh, you are going to admit commerce in the Howell Chevrolet?" Then we were deflated because he was admitting commerce in the Stand- ard Coil case and he wasn 't prepared to discuss , as I remember it, the Howell Chevrolet case at all that day and would not admit to commerce. Q. (By Mr. Nutter ) Will you tell us what was said about the Howell case? A. I says, "Oh, I thought we were talking about the Howell Chevrolet case." Frederick A. Potruch, attorney, says, "Now, Eddie, you know that I wouldn't admit to commerce in one of these automobile cases. We are going to have to go to a hearing on that. In fact, I didn 't even bring a briefcase or any papers over on it." Then we went ahead and discussed the Standard Coil case and as I remem- ber it we did not discuss the Howell Chevrolet case any more that day. Q. Was there any other discussion of Howell at all? A. Not that I remember . In fact, I distinctly remember there not being any further discussion on it. Q. Did Mr. Potruch say there that he didn't think the union had a majority at the Howell Company? - A. No, he did not. The testimony of Delmar A. Gordon, an organizer for the Union , is in substan- tial accord with that of Skagen . Gordon also testified that Potruch stated at the above-referred-to meeting that Potruch stated that ( 1) he had no papers with him at that time regarding the Respondent 's matter; (2) he had never met Howell; ( 3) and he did not "know what kind of business [Howell ] is in, whether [Howell] sells new or used cars." 428 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD Skagen and Gordon each denied that Potruch made any mention of the Union's majority status or lack of majority status. The undersigned was favorably impressed by the sincere and straightforward manner with which both Skagen and Gordon testified. On the other hand, 'Potruch did not so impress the undersigned. The undersigned is firmly con- vinced that at no time prior to the election slid the Respondent, Potruch, or any one on behalf of the Respondent, ever entertain a doubt that the Union repre- sented the majority of the Respondent's employees in the appropriate unit. Potruch's testimony that he had stated at the informal conference at the Board's offices that he doubted the Union's majority status is an afterthought and is belied by the credible evidence in the record. • Throughout the whole period involved herein, Potruch took the adamant position that the Respondent was not engaged in commerce within the meaning of the Act, and he proceeded to defend his client's position along that line. It is significant to note that Potruch -did not testify that he ever demanded, at the informal meeting or at any other. time, proof of the Union's majority status. Under the circumstances, the undersigned finds that Skagen's and Gordon's versions of what transpired at the informal conference at the Board's offices in February to be substantially in accord with the facts. Upon the basis of the credible evidence in the case, as epitomized above, the .undersigned concludes and finds that on and since January 31, 1950, the Respond- ent has refused to bargain collectively with the Union as the statutory represen- tative of the Respondent's employees in the unit found appropriate with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and by such refusal interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violat- ing Section 8 (a) (5) and (1) thereof. The undersigned further finds that the Respondent violated Section 8 (a) by (1) Howell's statements to Skelton, Hansen, and Smith; (2) Bordeau's. state- ments to Skelton and Herrick; (3) Potruch's remarks during his two speeches to the employees; and (4) Ogen's statements to Leonard, Kirkland, Smith, and .Arnold. Upon the basis of the above findings, the undersigned concludes and finds, that the Respondent interfered %vith the conduct of the Board-conducted election of June 1, 1950, thereby depriving the employees of the freedom of choice of rep- resentatives contemplated by the Act. Accordingly, the undersigned recommends that the said election be set aside and vacated. B. The discriminatory discharge of Claude Leonard Leonard has been an experienced all around mechanic for the past 25 years. Most of his time during this period was spent largely in repair and service of Chevrolet automobiles. He is a certified and approved Chevrolet mechanic. For nine consecutive years he has received the General Motors diploma for having successfully completed courses of instruction in Chevrolet mechanics and repair 1' His experience during the past 25 years included front end work, the overhaul- ing and repair of motors, transmissions, and rear ends, grinding valves, and other types of mechanical work performed in a general garage. For a period of .3 years he operated his own repair shop in St. Louis, Missouri. Leonard was first employed by the Respondent in 1944 as a line mechanic. His duties as such required him to overhaul motors and transmissions, rear 16 His latest diploma was secured in 1050, while in the Respondent's employ. HOWELL CHEVROLET COMPANY 429 end work, reline and adjust brakes, and to perform front end work. After a little more than a year of service with the Respondent, the latter's then service manager opened his own repair shop and Leonard went to work for him as a gen- eral mechanic. After remaining in the employ of Howell's former service manager for a little over 2 years, Leonard secured employment with another Chevrolet dealer, where he remained for about a year. Leonard was reemployed by the Respondent in January 1948 as a brake repair man. His duties as such required him to reline and adjust brakes, overhaul and repair wheel and master cylinders, and make other repairs on the brake system. Occasionally, during a busy period, he was requested, and did, other types of mechanical work. For example, when the front end man was on vaca- tion for 2 weeks in August 1949, Leonard performed front end work in addition to his regular duties. Also when the front end man was absent during 1949, on account of sickness, Leonard performed his work as well as his own. As found above, Leonard joined the Union on January 23, was elected or selected by his coworkers senior chairman or shop steward on January 30, and was the leader and spearhead of the Union's organizational drive in the Re- spondent's establishment. Leonard openly solicited, and obtained, many new adherents to the Union from among the Respondent's employees. . On January 31, Leonard wore his senior chairman button to work and ad- mittedly the Respondent's officials saw the button on him that day. About a week after Leonard commenced wearing his said button in the shop, Ogen warned him, to quote Leonard's testimony "to get away from him with that button on" because "he did not want to get fired" because Howell had said, that Howell "was going to fire anybody that joined the Union." During the first week in February, Ogen informed Leonard and Kirkland, who also wore a union membership button, that Howell said that he intended to dis- charge all members of the Union. Despite these warnings of Ogen's and Bordeau's admonition in the latter part of February that Leonard should cease campaigning for the Union in the shop or resign his job, Leonard continued his leadership in the Union and continued to wear his button in the shop. While Leonard was in Respondent's employ, mechanics, such as he, received no guaranteed wage. Their earnings were computed on a straight 40 percent commission basis 17 for labor performed for each customer. When a. mechanic had no work to perform he received no compensation of any sort. For a month or so prior to January 31," Leonard's semimonthly net earnings" amounted to approximately $150. On January 15, Leonard received $149.96 net for work performed during the 2-week period ending that date. On January 31, his net earnings were $150.88. For the 2-week period ending February 15, he received $98.27 net. For the 2-week period ending February 28, he received $45.52 net. For the 2-week period ending March 1.5, he received $69.30 net. Leonard's final pay check, which he received on March 31, amounted to $87.82. Commencing 'early in February and continuing until his discharge on March 31, Leonard and two of his coworkers, Kirkland and Fitzhugh, noted that brake '7 Within a few days after the Board election the commission was raised to 50 percent. '8 The documentary evidence does not disclose any earnings of Leonard prior to January 1950. After deductions had been made for withholding tax, social security, and the like. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adjustment work and the bleeding of the brake system, work which normally in the past had been assigned to Leonard, was being performed, upon instructions of Bordeau, by the men who worked on the lubrication rack, one of whom was Bordeau's son. On March 15, Leonard testified on behalf of the Union at the hearing in the' afore-mentioned representation proceeding. On March 31 Leonard worked overtime, and as he turned in his work ticket and prepared to leave the shop Bordeau approached and informed him that he was discharged. Upon asking why he was discharged, Bordeau replied that there was not enough work for the brake man and the front end man to each make a living so the Respondent decided to combine the brake and front end jobs and retain in its employ the front end man. When Leonard protested the Respondent's action of retaining Kenneth Herrick, the front end man, instead of him, stating, among other things, that he had more seniority than Herrick and could efficiently' perform front end work, Bordeau replied, to quote Leonard, "Well that is the way it is to be and he could do nothing further about it." Admittedly, Leonard was not discharged for inefficiency. The Respondent's answer averred that Leonard's "discharge was predicated on sound economic reasons and reasons of cause." Howell and Bordeau each admitted that Leonard was discharged solely for lack of work. Bordeau also admitted that since Leonard's discharge, Herrick's earnings have nearly doubled. In fact, three or four times, Herrick had to call upon outside held to aid him. . Bordeau testified he did not recall Leonard to help Herrick instead of allow- ing Herrick to obtain outside help, because he did not know where to reach Leonard. This reason does not ring true because Leonard visited the Respond- ent's establishment on several occasions between March 31 and June 1, on which latter date Howell ordered Leonard off the Respondent's premises. Further- more, Herrick needed, and obtained, outside help prior to June 1. Bordeau's testimony, moreover, that he considered Leonard's refusal, "some- time in 1949," to do certain front end and alignment work when he requested Leonard to do so, as evidence that Leonard would not be interested in the combined brake and front end job, and hence he did not consider Leonard for the job or did not think him capable of performing the combined job properly, is patently untrue. The record discloses that when Bordeau requested Leonard to do the front end and alignment work, Leonard was actually working on. another job and hence was unable to undertake the proffered job. Upon the entire record in the case, the undersigned concludes and finds that Leonard was discharged on March 31, 1950, in violation of Section 8 (a) (3) and (4) of the Act because of his membership and activities in behalf of the Union and because he gave testimony on March 15, 1950, in a formal hearing before the Board. Viewed against the antiunion background of the Respondent, as found above, coupled with Potruch's statements that, if necessary, the Re- spondent would discharge a union adherent in order to bring the entire matter. before the courts, Leonard's discharge, coining as it did, becomes more than a mere coincidence. Furthermore, it was incumbent upon the Respondent to pro- duce its records, or other reliable evidence, in place and stead of the mere state- ments of Howell and Bordeau to prove that Leonard's discharge was necessitated by economic reasons. " This is especially so since Bordeau admitted that sub- sequent to Leonard's discharge Herrick's earnings almost doubled, that at times Herrick needed additional help, and 'that the Respondent was then having "a busy season." HOWELL CHEVROLET COMPANY 431 IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section -I, above, 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 un- fair labor practices, tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices , violat- ing Section 8 (a), (1), (3 ), (4), 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 Claude Leonard the undersigned will recommend that the Respondent offer to Leonard immediate and full reinstatement to his former or substantially equiva- lent position,20 without prejudice to his seniority and other rights and privileges. The undersigned will also recommend that the Respondent make Leonard whole for any loss of pay he may have suffered by reason of the Respondent's discrimi- nation against him, by payment to him of a sum of money equal to the amount he would have normally earned as wages from March 31, 1950, to the date of the Respondent's offer of reinstatement , less his net earnings during that period2' Loss of pay shall be paid in accordance with the formula enunciated by the Board in F. W. Woolworth Company, 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 appro- priate 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. 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 Claude Leonard because of his union affiliations and because he gave testimony in a formal hearing before the Board . Such conduct which is specifically violative of Section 8 (a) (1), (4), 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 collective 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 underlying attitude of opposition on the part of the Respondent to the purposes of the Act to protect the rights of employees generally,22 the undersigned is 20 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branoh, 65 NLRB 827. 21 See Crossett Lumber Company, 8 NLRB 440. 22 See May Department Stores Company v. N. L. R. B., 326 U. S. 376. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. The undersigned further recommends that the June 1, 1950, election among the Respondent's employees be set aside and vacated. 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 times material herein constituted, a unit ap,n•o- 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 January 31, 1950, and at all times relevant thereafter has been, the exclusive representative 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 January 31., 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 Re- spondent 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 Claude Leonard, thereby discouraging membership in a labor organization, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 7. By discharging and otherwise discriminating against Claude Leonard, because he had given testimony under the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section S (a) (4) of the Act. 8. 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 S (a) (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.]