California Willys

CALIFORNIA WILLYS 325 4. Local 19 , by executing the Dock Agreement with its illegal preference-in- employment clause and by attempting to cause the Employers to discriminate in regard to the hire and tenure of employment of longshoremen , dock workers, and applicants for employment in violation of Section 8 (a) (3) of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( b) (2) and 8 (b) (1) (A) of the Act. 5. W. E. W. and Local 19, by restraning and coercing employees and prospective employees of the Employers in the exercise of the rights guaranteed in Section 7 of the Act, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) and 8 (b) (1) (A), respectively, of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. 7. ILWU has not violated the provisions of the Act. [Recommendations omitted from publication in this volume.] SIDNEY MILLER, EDWARD GINSBERG , AND Louis GINSBERG, CO -PARTNERS D/B/A CALIFORNIA WILLYS and INTERNATIONAL ASSOCIATION OF MACHINISTS , DISTRICT LODGE No. 94, LOCAL LODGE No. 1186. Case No. 21-CA-1001. February 26,1952 Decision and Order On September 6, 1951, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings made by the Trial Examiner are hereby affirmed. The Board has con- sidered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following addi- tions and modifications : 1. We agree with the Trial Examiner that the Respondents inter- fered with, restrained, and coerced their employees, in violation of Section 8 (a) (1) of the Act by the numerous acts of interrogation and threats fully described in the Intermediate Report, and referred to in paragraph numbered 2, below. ' Puisuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Mem- bers Murdock and Styles]. 98 NLRB No. 45. 998666-vol 98-53-22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. We likewise find, as did the Trial Examiner, that the Respondents discriminatorily discharged employees Lee and Haken, and laid off employee Fike, in violation of Section 8 (a) (3) of the Act? The timing of these discharges and the layoff, and the context of strong union animus in which this action took place, established a clear prima facie case in support of the complaint. As fully discussed in the Intermediate Report, the Union's organizing drive began about the middle of September 1950. On September 22, 1950, the Union wrote the Respondents notifying them that it represented a majority of the Respondents' employees in the unit in question. On September 26, 1950, the Union filed a petition for certification as collective bar- gaining representative. A conference with respect to the Union's petition, attended by one of the Respondents, took place on October 10, 1950. A consent-election agreement was executed on November 28, 1950. The election was held on December 7, 1950. In the meantime, and while these proceedings were pending before the Board, the Respondents embarked upon a campaign of interroga- tion and threats directed against the union activities of its employees. 'Thus, according to testimony which we, like the Trial Examiner, credit, about the middle of September 1950, on the same day that Haken signed a union card, Edward Ginsberg, one of the Respondents, asked Haken whether he was joining the Union, and when Haken answered in the affirmative, Edward Ginsberg asked him what he expected to gain by doing so, and added, "So long as we can help it we won't have a union here." About a week later, Miller, another Respondent, told Haken, "I see you signed an authorization card," and when Haken acknowledged that he did, Miller asked him whether lie was a paid-up union member; at the same time, Miller mentioned the letter the Union had sent to the Respondents on September 22, 1950, requesting recognition. Shortly thereafter, Louis Ginsberg, another Respondent, asked Haken whether he had signed up with the Union, and who the "instigators" were. When Haken said he didn't know, Louis Ginsberg told him he "had a union shop back in Des Moines, Iowa," and "as long as I can help it I won't have another union shop here." During the latter part of September 1950, Miller questioned Johnson whether he had joined the Union, and Johnson replied that he had. About the middle of October 1950, Miller also questioned Lee whether the latter had signed a card to join the Union; when Lee told Miller that he had signed such a card, Miller said, "What can the union do for you we are not doing?" About a week or two later, Parker, the Respondents' service manager, asked Lee whether he had signed "to get the union in the shop," and why he had done so. 2 The Trial Examiner recommended dismissing the 8 (a) (3) allegation as to employee Johnson. We adopt that recommendation in the absence of exceptions thereto CALIFORNIA WILLYS 327 During October 1950, Louis Ginsberg called Fike into his office and asked Fike why he had joined the Union, Fike said he thought it was a nice thing to belong to, "everybody was joining it." Louis Gins- berg then asked Fike, "Don't I treat you fellows right?" Fike did not answer. Thereupon Ginsberg stated, "I am going to fire every damn one of you that joined it." About a week or two later, Miller, too, asked Fike why he had joined the,Union. In November 1950, the Respondents interrogated Fike-before he was laid off on November 17-as to who first started talking about the Union. Significantly, Louis Ginsberg asked Fike whether it was Haken or Johnson. Fike replied that it was no one person in particular, "everybody was talking about it." Thus, the discharge of Lee and Haken, and the layoff of Fike, all known adherents of the Union, followed close upon a series of acts by the Respondent which included not only unlawful interrogation as to the union activities of its employees, but also threats to keep the Union out, and specifically to take reprisal against employees who had joined the Union. Moreover the prima facie case of unlawful dis- crimination thus established 3 finds further support in three addi- tional statements which, on the basis of Fike's credited testimony, we find that the Respondent made after these discharges and the layoff occurred. Thus in December 1950, when Miller was discussing with Fike the possibility of the latter's return, Fike asked Miller where employee Joe Turner was and Miller said, "I had to let Turner go. He was a hundred per cent union." On the day before Christmas 1950, when Fike returned to the shop to repay $15 he had borrowed from Louis Ginsberg, Fike saw another employee, Sam DiGiovanni, putting his tools in his car, and he asked Louis Ginsberg why DiGiovanni was leaving his employ; Ginsberg said, "I had to let Sam go out. He is a union man." 4 And early in February 1951, when Fike returned to work, Miller told Fike, "If you come back here to work and carry a union card, you will not have a job." To meet this strong prima facie case, the Respondents sought to establish that their action with respect to Lee, Haken, and Fike was prompted by nondiscriminatory considerations. We have carefully examined all of the evdence introduced in support of the Respondents' various defenses, and find, as did the Trial Examiner, that the reasons which the Respondents assert-reasons which, at least in the cases of Lee and Haken, were for the most part wholly unrelated to any given 0 That the Respondent did not discharge or otherwise retaliate against all of the known union members is not contiolling . The Board has frequently held that an employer need not engage in a complete housecleaning before it can be established that certain employees were discriminated against. See Duro Test Corporation, 81 NLRB 976 ; Stewart War- ner corporation, 55 NLRB 593. *Although no charges have been filed on behalf of either Turner or DiGiovanni, we believe that these statements are worthy of consideration in determining the Respondents' motivation for the action taken with respect to Lee, Haken , and Fike. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the employees at the time of their discharge-were afterthoughts and pretexts designed to disguise the Respondents' true motives. The Trial Examiner has considered each of the defenses in detail, and to his analysis of the defenses we would add only the following points : (a) With respect to the Respondents' contention that Haken was discharged because of his prolific use of opprobrious language we note, as did the Trial Examiner,; that Haken had habitually used such language during his entire 15 months of employment with the Re- spondent, that other employees, and indeed one of the Respondents, had frequently expressed themselves in that manner and that Haken had never been threatened with discharge or any similar discipline on that score. The Respondents apparently contend, however, that in cursing Edward Ginsberg, Haken had gone too far, and that this particular act-if not Haken's general predilection to express himself in an unsavory manner-prompted his discharge. We note, however, that Haken cursed Edward Ginsberg several days before his discharge, and we think it plain that if this sort of incident had played any part in Haken's discharge it would have resulted in his summary dismissal at the time it occurred. (b) In the case of Fike the Respondents appear to contend that if they had intended to discriminate against this employee there would have been no reason for confining themselves to laying him off for a short period instead of discharging him. What this contention ignores is the fact that the period of Fike's layoff included the date of the union election when Fike was not permitted to vote. Fike was admittedly a desirable employee whom the Respondents did not want to lose. We are persuaded that they sought to accomplish their pur- pose of thwarting the Union, and at the same time retaining Fike in their employ, by seizing upon what they considered to be Fike's need for a rest to lay him off during the period of the election. Any doubt there may be on this score is dispelled by the following incident which we find occurred on the basis of Fike's credited testimony : About a week and a half after the election, when Respondent Miller, at the latter's office, asked Fike if he was ready to go back to work and Fike replied that he thought he was fired, Miller said, "Well, I had to do that because I didn't want you to vote in the election." Accordingly, we find that the Respondents discriminated with regard to the hire or tenure of employment of Lee, Haken, and Fike, to discourage membership in a labor organization, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations CALIFORNIA WILLYS 329 Board hereby orders that Louis Ginsberg, Edward Ginsberg, and Sidney Miller, co-partners, doing business as California Willys, Los Angeles, California, their agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists, District Lodge No. 94, or in Local Lodge No. 1186, or in any other labor organization of its employees, by discriminatorily discharging or refusing to reinstate any of them, or by discriminating in any other manner 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) Interrogating their employees concerning their union member- ship, activities, and desires, or as to the activities of their coworkers; informing their employees that they will not permit a union in their establishment; and threatening their employees with discharge if they become or remain members of a union. (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Association of Machinists, District Lodge No. 94, or Local Lodge No. 1186, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities 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 right may be affected by an agreement requiring membership in it labor organization as a condition of employment, in conformity with Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Lynwood Lee and Arthur Haken immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole Lynwood Lee, Arthur Haken, and Ernest Fike for any loss of pay they may have suffered by reason of the Respond- ents' discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Upon request, make available to the National Labor Relations 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. (d) Post in their establishment at Los Angeles, California, copies of the notice attached-to the Intermediate Report marked "Appendix 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A." 5 Copies of said notice, as amended below, to be furnished by the Regional Director for the Twenty first Region, shall, after being duly signed by the Respondents, be posted by them immediately upon receipt thereof, and be maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents 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 in writing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges discrimination with respect to Clifton Johnson. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed on January 17, 1951, by International Association of Machinists, District Lodge No. 94, Local Lodge No. 1186, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued his complaint on June 13, 1951, alleging that Sidney Miller, Edward Ginsberg, and Louis Ginsberg, copart- ners, doing business as California Willys, herein called the Respondents, had engaged in, and were engaging in, unfair labor practices affecting commerce, within the meaning of Section 8 (a) (1) and (3) 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 and the charge, together with notice of hearing thereon, were duly served upon the Respondents and upon the Union. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance that the Respondents (1) since September 1, 1950,' by means of certain stated acts and conduct, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section T of the Act; and (2) on or about September 16, discriminatorily discharged Clifton Johnson, on or about November 3, discriminatorily discharged Lynwood Lee and Arthur Haken, and on or about December 7, discriminatorily discharged Ernest Pike, and thereafter refused to reinstate any of them because each of them,was a member of the Union or had authorized the Union to represent him for the purpose of collective bargaining, or had engaged in protected con- certed activities. This notice , however, shall be , and it hereby is, amended by striking from line 3 thereof the words "The Recommendations of a Trial Examiner " and substituting in lieu thereof the words "A Decision and Order." Said notice is further amended by substituting for the first sentence of the last paragraph thereof the following : "All our employees are free to become or remain members of the above -named union or any other labor organization, or to refrain from such activity except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act." In the event that this Order is enforced by a decree of the United States Court of Appeals , there shalt be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a decree of the United States Court of Appeals, enforcing an Order." ' Unless otherwise noted all dates refer to 1950. CALIFORNIA WILLYS 331 The answer of the Respondents, as amended at the hearing, denied the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held at Los' Angeles, California, from July 23 through July 31, 1951, before the undersigned, the duly designated Trial Examiner. The General Counsel and the Respondents were represented by counsel, the Union by officials thereof. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues was afforded all parties. At the conclusion of the taking of the evidence, oral argument was had in which counsel for the Respondents and the General Counsel participated. The parties were advised that they might file briefs with the under- signed on or before August 27, 1951. A brief, which has been carefully con- sidered, has been received from Respondents' counsel. 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 RESPONDENTS California Willys, a partnership consisting of Louis Ginsberg, his son, Edward, and Sidney Miller, has its principal offices and place of business in Los Angeles, California, where it is engaged in the retail sale and service of new Willys passen- ger automobiles and station wagons, and in the retail sale of used automobiles, automotive parts, supplies, and equipment. The Respondents annually purchase new automobiles and station wagons valued in excess of $150,000 from the May- wood, California, plant of the Willys-Overland Motors, Inc.,' under and pursuant to a direct dealer-selling franchise. Upon the above undisputed facts and upon the record as a whole, the under- signed finds, contrary to the Respondents' contention, that the Respondents are, and during all times material herein were, engaged in commerce within the meaning of the Act. The undersigned further finds that it will effectuate the policies of the Act for the Board to assert jurisdiction over the Respondents.' II. THE ORGANIZATIONS INVOLVED International Association of Machinists, District Lodge No. 94, and Local Lodge No. 1186, are labor organizations admitting to membership employees of the Respondents. III. THE UNFAIR LABOR PRACTICES A. Introduction In September, the Union commenced an organizational drive among the Respondents' employees. The campaign apparently met with a certain degree of success for the Union, under date of September 22, wrote the Respondents stating that it represented the majority of the Respondents' employees in a certain specific unit. The letter concluded with a request for recognition as the exclusive collective representative for such employees and for an appointment to discuss a collective bargaining contract. The Respondents did not reply to the said letter. Instead, however, Sidney Miller, one of the Respondents, queried the employees' as to whether they had in fact designated the Union as their collective bargaining representative. 2 On numerous occasions the Board has found Willys-Overland Motors, Inc., to be en- gaged in commerce within the meaning of the Act a See Harbor Chevrolet Company, 93 NLRB 1326, and cases cited therein. 4 At one place in his testimony Miller testified that he queried practically all of the employees and later he testified he queried each and every employee. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 26, the Union filed with the Regional Director for the Twenty- first Region a petition for certification. Under date of October 2, a field examiner attached to the Twenty-first Region of the Board wrote Miller requesting him to call at the Board's offices to discuss the Union's petition. Pursuant thereto Miller and the said field examiner con- ferred on October 10. Following such conference and subsequent talks between Miller and the field examiner the Respondents and the Union entered into a consent-election agreement on or about November 28, which subsequently received the approval of the said Regional Director. Pursuant to the said agreement an election was held on December 7 under the auspices of the Regional Director, which election the Union won. B. Interference, restraint, and coercion Clifton Johnson testified that on or about September 14 or 15, he signed a card authorizing the Union to represent him for the purposes of collective bar- gaining; that about a week later he was called into Miller's office and asked by Miller if he had joined the Union; and that he answered in the affirmative. Lynwood Lee testified that he signed an authorization card during the second week in September ; that about a month later Miller came to the place where he worked and asked if he had joined the Union; that he answered in the affirmative; that Miller then asked, "What can the union do for you we are not doing?", to which he replied, "Well, it can get me union scale wages and regulated hours" ; that about a week or so after the aforesaid conversation with Miller, Herman Parker,' manager of the service department and Lee's immediate super- visor, asked him if he had signed "a petition to get the union in the shop" ; that when he admitted doing so, Parker asked, "Why did you do that?" and that his answer was similar to that given to Miller in response to Miller's inquiry about what advantages he expected to derive from being affiliated with the Union. Ernest Fike testified that he signed an authorization card on September 11 or 12; that about 3 weeks thereafter he was called into the office of Respondent Louis Ginsberg and there, in the presence of Respondent Edward Ginsberg, was asked by Louis Ginsberg why he had joined the Union, to which he replied, "I thought it was a nice thing to belong to, everybody was joining it"; that Louis Ginsberg then asked, "Don't I treat you fellows right?"; that when he made no reply to that question,. Louis Ginsberg remarked, "I am going to fire every damn one of you that joined if'; that about a week or so after the afore- said conversation with Louis Ginsberg, Miller spoke to him about the Union; that in reply to Miller's question as to why he had joined the Union, he said he did not know ; that in November, Louis Ginsberg asked him "who first started talking about the union, . . . was it Art Haken or was it Clifton Johnson" ; that he replied it was neither one "in particular," adding that "everybody was talking about it"; that he was laid off on November 17; 6 that sometime in December, while visiting the plant in response to Miller's invitation to discuss rehiring, he inquired of Miller about employee Joe Turner because he did not see Turner at the plant and Miller replied, "I had to let Turner go. He was a hundred percent union" and talked "more union than anyone else"; that when he again visited the plant on the day before Christmas he noticed em- ployee Sam DiGiovanni putting his (DiGiovanni's) tools in an automobile and he inquired of Louis Ginsberg, "What is the matter with Sam? Where is he ' Also referred to in the record as Ike Parker. 6 This layoff is discussed at length below. CALIFORNIA WILLYS 333 going?", and Louis Ginsberg replied, "I had to let Sam go out. He is a union man"-; and that about 4 or 5 days after he had returned to work in February 1951,, Miller- said to him, "If you come back here to work and carry a union card, you will not have a job." Arthur Haken testified that about mid-September he signed an authorization card ; that the same day he signed the card, Edward Ginsberg asked him, "Are you joining the union?" and he replied in the affirmative ; that Ginsberg then asked, "What do you expect you gain by it?" to which he replied, "I will be belonging to the union," to which Edward Ginsberg replied, "That is good enough . . . let me tell you there is nothing better than a 50-50 deal.' So long as we can help it we won't have a union here" ; that about a week later Miller said to him, "I see you signed an authorization card" ; that when he answered in the affirmative, Miller then asked whether he was a paid-up member and again he answered in the affirmative; that during the course of the conversation he told Miller that when he was employed by an automobile concern in Long Island, New York, he was a member of a union and was still a union member ; that on September 23, Louis Ginsberg asked him if he had "signed up" with the Union; that after he, acknowledged that he had done so, Ginsberg asked him who the instigators were, to which he replied he did not know ; and that Gins- berg concluded the conversation by stating, "I had a union shop back in Des Moines, Iowa, and as long as I can help it I won't have another union shop here." While admitting that he questioned Pike as to whether Pike had signed a union authorization card, Louis Ginsberg denied asking Pike, "Who started talking about the union, was it Haken or Johnson?" He also denied that he talked to Pike on December 24, or at any other time, about DiGiovanni or about DiGiovanni's union activities or adherence. Louis Ginsberg testified that after being informed by Miller of the receipt of "a notice" from the Union stating that the Union was "having an election," he inquired of Pike whether Pike wanted the Union to represent him ; and that the conversation with Fike was as follows : Well, I only recall one time that I asked him [Pike] whether he wanted the union to represent him. I said to Ernie, I said, "You have been here almost two years, is that right?" He said, "Yes, I like to work here and I like everybody here." ' Louis Ginsberg denied talking to Haken about the Union or interrogating Haken about' his union activities. He further denied asking Haken, "Who are the instigators of the Union" or saying to Haken, "As long as I can help it I won't have a union here." Parker denied that he had any discussion with Lee regarding the latter sign- ing a union-authorization card. He admitted, however, that he did discuss the Union with Lee. Regarding this conversation Parker testified on direct examina- tion as follows : A. I didn't ask him about _ a union card . I asked him what he thought about the union situation that was existing there. Q. What did he say? A. He said that he thought it was possibly all right. Q. He testified that you said to him .. . * : s 4 Since about February 1950 , the mechanics , like Haken , are paid half of the labor cost charged the customer s Evidently this is.Louis,;,Ginsberg's' version of the conversation which. Pike- testified took,place about 3 weeks after September 11 or 12. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. (By Mr. Elmore) Did you sign a petition to get a union shop and he answered yes, and you said, "Why?" And he said, "I said the same thing I said to Mr. Miller, why not get us all together. And that you said, "Well, I think that would be a good idea later on." Do you remember saying any- thing like that? A. I think I did. I didn't ask him if he signed a union card at all. I asked him what he thought about the situation and he didn't tell me that he had signed. He said, "I think it is all right", or words to that effect. I says, "Well then, what is it that you want? What are they getting for you?" Q. What did he say? A. As I remember it, I didn't get any answer. AncrI did state, "Why don't we get together and talk this thing over", meaning he and myself, what his difficulty was. That was the conversation. Parker could not place that date of this conversation. He testified that it "possibly" took place in the latter part of October. Miller admitted that within a day or two after the receipt of the Union's letter of September 22, he asked the employees in the unit suggested by the Union whether the employees had designated the Union their collective bargaining representative. He testified that the sole purpose of such inquiry was to ascer- tain the truth or falsity of the Union's claim of majority status. He denied asking Fike, Johnson, or any other employee whether he had joined the Union. Miller also denied asking Johnson, "What can the Union do that we can't do?"; telling Pike in substance or in effect, "I let Turner go because he was 100 percent union-talking more union than anyone else." Regarding his conversation with Haken, which Haken placed about September 22, Miller testified on direct examination as follows!: Q. Now, I will direct your attention to Mr. Art Haken. First, I will ask you if you have ever told Art Haken or said to him. "Are you a union man? Are you a paid-up union member?" A. I asked him the same question that I asked the other employees, whether or not he had signed with the union for them to be his bargaining agent. He told me he had. Q. Did he also tell you that he was a member of a union at the Long Island distributors local in New York? A. At the time he told me that he had worked in Long Island at that distributor, and that that was a Union deal there, and he was a Union man there. Regarding the conversation he had with Haken, which Haken testified took place the day Haken signed the Union's authorization card, Edward Ginsberg testified that he saw Haken a short distance from the Respondent's establish- ment talking to a representative of the Union ; that after Haken had finished his conversation with the union representative and while he and Haken were returning to the Respondents' premises, "I just happened to mention to [Haken] if the union would be any better for him than a 50-50 proposition" ; and that he did not make the statement, which Haken attributed to him, "As long as we can help it, we won't have a union here" nor did he make any similar remarks to Haken. Upon the entire record in the case, coupled with the fact that Johnson, Fike, Lee, and Haken impressed the undersigned as being forthright, sincere, and trustworthy witnesses, the undersigned is convinced, and finds, ^ that the state- ments, as summarized above, which the aforesaid four employees attributed to Louis Ginsberg, Edward Ginsberg, Sidney Miller, and Herman Parker, were, CALIFORNIA WILLYS 335 in fact, made by them. The undersigned further finds that (1) by Miller's interrogation of Johnson, Lee, Fike, and Haken, (2) by Miller's statement to Fike in February 1951, "If you come back here to work and carry a union card, you will not have a job," (3) by Louis Ginsberg's interrogation of Fike re- garding Fike's reason for joining the Union, (4) by Louis Ginsberg's statement to Fike, "I am going to fire every damn one of you that joined" the Union, (5) by Louis Ginsberg's interrogation of Fike as to whether Haken and John- son were the persons responsible for bringing the Union into the Respondents' establishment, (6) by Louis, Ginsberg's interrogation of Haken regarding Haken's union membership and the identity of the instigators of the union movement within the Respondents' establishment, (7) by Louis Ginsberg's state- ment to Haken on September 23 that he would not tolerate a union shop at the Respondents', place of business, (8) by Edward Ginsberg's interrogation of Haken in September as to whether Haken had joined the Union, (9) by Edward -Ginsberg's statement to Haken in September that "We won't have a union" in the Respondents' establishment, and (10) by Parker's questioning Lee regard- ing Lee's activities in behalf of the Union, the Respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1) thereof. C. The discharges The complaint , as amended at the hearing, alleged that the Respondents, in violation of the Act, discriminatorily discharged and thereafter refused to reinstate Clifton Johnson, Ernest Fike, Lynwood Lee, and Arthur Haken. In their answer, as amended , the Respondents denied the said allegations and affirmatively averred , and at the hearing and in their brief maintained, that the aforesaid named persons were discharged for good and sufficient reasons. The discharges are discussed seriatim: Clifton Johnson was first employed by the Respondents as a lotboy ° and porter on May 27, 1949, and was laid off on February 2, 1950. During this period, Fike, a nephew of Johnson , was also a lotboy 1° in Respondents ' employ. When business slackened and it became evident that the services of but one lotboy and porter were all that was needed , Johnson was laid off. In July 1950, because the Respondents ' business precipitately increased, and for the further reason that Fike had stated that he would shortly be leaving on a vacation , the Respondents decided to hire another lotboy. When Fike heard of the Respondents ' intention , he'approached Miller and suggested that Johnson be rehired stating , among other things, that Johnson was then unemployed. Regarding Johnson's rehiring and subsequent layoff, which the complaint alleged was in violation of the Act, Fike testified that during the conversation he had with Miller in July, Miller said that the job would be only a temporary -one ; that Miller also said that if Johnson wanted the job under such condi- tions he should have Johnson report for work ; that the day following the fore- going conversation he went to Johnson's home and told Johnson of his conver- sation with Miller, including Miller's admonition that the job was to be on a temporary basis only ; that Johnson then accompanied him to the Respondents' used car lot, saw Miller, and went to work ; that he left for his vacation ° A lotboy cleans, washes, and polishes the cars which the Respondents have on display on their used car lot located immediately adjacent to the building housing their new car salesroom and service shop. 10 Fike also did some porter work and occasionally lubricated cars. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD around the forepart of September and returned on or about the 12th of the month; that Johnson was laid off shortly thereafter; and that until his own, layoff on November 17, he had no other lotboy assisting him.- Miller testified that shortly before Johnson was rehired in July, Parker had told him that he needed another lotboy to help Fike ; that Fike asked him to, rehire his uncle, Johnson, because Johnson was then out of work ahd he (Pike) was intending to take a vacation in the near future ; that he told Pike "to have Clifton come in.and talk to me, that I wouldn't give him a steady job"; that the following morning Johnson came to the used car lot with Fike ; that he then told Johnson that the job was temporary ; that Johnson "agreed to go to work on that basis" ; and that Johnson was laid off on September 23, because Johnson's services were no longer needed due to a slump in business. Johnson denied that when he was rehired in July either Miller or Fike told him that the job was to be temporary ' The record is manifestly clear that when Johnson was rehired in July, the, Respondents were experiencing a tremendous increase in business, occasioned, no doubt, by the outbreak of the Korean War and the public's rush to purchase automobiles, and it was absolutely necessary for them to employ another lotboy to assist Pike ; that in September, the Respondents' business had decreased and the necessity of employing two lotboys no longer existed ; and that when Johnson was rehired in July, he was informed by Fike and by Miller that the job was only temporary. Under the circumstances, the undersigned is convinced, and finds, that John- son's layoff on September 23, 1950, was for economic reasons and not for the reasons alleged in the complaint. Accordingly, the undersigned will recommend that the allegations of the complaint as to Clifton Johnson be dismissed. Lynwood Lee, in the spring of 1950, answered the Respondents' advertisement for a mechanic. He was interviewed by Parker who, after speaking to Lee's former employer, decided that Lee was not qualified for the job and therefore did not hire him. In June or July, the Respondents advertised for a lubrication and a new car check-up man" Lee applied and was hired by Parker and went to work on July 13. Lee's starting wages were $125 per hour. Lee testified that during his employment with the Respondents, which termi- nated on November 3, he was complimented by management representatives on several occasions for performing good work ; that after working for the Respond- ents for a couple of weeks, Parker told him that he was pleased with his work ; that about 2 or 3 weeks later Parker told him that the number of "turn-backs" ' 22 have been materially decreased since his employment with the Respondents ; that Miller praised his work and promised him a raise in wages ; that the Saturday following Miller's praise, the next pay day, he received a 5 cents per hour increase ; 13 and that on November 3, without any advance notice, Parker told him his services were being discontinued because "business is bad. We are going to cut down on the expense." Louis Ginsberg testified that he found no fault with Lee's work during the first couple of weeks of Lee's employment and told Lee that he liked Lee's work ; that thereafter Lee's work became sloppy and because thereof he received complaints from new' car customers about improper work done on the cars ; "A new car check-up man inspects and generally services new cars and bodies and gets them ready either for delivery to customers or to be put on the showroom floor for display purposes. ii "Turn-backs" means cars returned by customers because the cars were not serviced properly. 11 The raise was given about a month or a month and a half before Lee -was discharged. CALIFORNIA WILLYS 337 that when he noticed Lee's work was not up to standard he told Parker to discharge Lee but Parker advised against it because of the scarcity of "lube men, mechanics, and everything else" ; that many customers complained about the improper lubrication of their cars; and that the complaints started about a month after Lee was hired and continued throughout the balance of his employment. Miller testified on direct examination that as far as he could recall he never complimented Lee ; that he might have said a "nice word" to Lee because it was his habit to say a "nice word" to the employees whenever he could because he felt employees appreciated it; that Lee was given the raise because Parker was of the opinion that by giving Lee more money Lee would work faster and would turn out better work ; that despite the increase, Lee's work not only did not improve nor increase in volume, but became steadily worse ; and that toward the latter part of September, Edward Ginsberg told him and Parker that Lee was taking too much time lubricating cars and because of it the lubri- cation department was a losing proposition. Miller further testified that after discussing the matter of giving Lee a raise with his partners and with Parker, and after securing their approval to raise Lee's wages, he called Lee into his office and said, "If we give you a raise in pay, will you do everything in your power to earn it, or to make it worthwhile'?" to which Lee responded, "Yes, I will" ; and that commencing with the latter part of September and continuing throughout the entire month of October, Edward Ginsberg complained to him about the length of time Lee took to lubricate cars. Edward Ginsberg testified that he found no fault with Lee's work during the first 30 days of Lee's employment ; that immediately thereafter he noticed " that Lee took much more time to perform his tasks ; that he never spoke to Lee about taking too -much time on his jobs but did compain to Parker about it; that after Lee had been with the Respondents for a month or a month and a half he received two or three complaints from customers about) faulty lubri- cation jobs. Ginsberg admitted, however, receiving complaints from customers about faulty work performed by Respondents' other lubrication men. Parker testified that he did not engage Lee to perform major mechanical work but that shortly after Lee was hired he told Lee that if Lee performed the work properly he would promote Lee to a line mechanic ; " that he found no fault with Lee's work for the first 30 days ; that thereafter on numerous occasions he was obliged to tell Lee to speed tip his work, that instead of doing a lubrication job in 25 minutes, Lee took up to 35 or 45 minutes to do it; that despite Lee's failure to do the work faster, lie recommended that Lee be given a wage increase ; that he recommended the raise because he believed a wage increase would be a morale booster to Lee ; that on September 13 Lee not only took too long to repair the car of Mr. C. 0. Horner, but inserted in or about the motor of the car a beer can opener in lieu of a proper part; that on September 14 Lee failed and neglected to sufficiently tighten, or entirely omitted replacing, the differential plug after lubricating the car of customer Houghton ; that because of Lee's poor workmanship the Respondent lost the business of Horner and Houghton'; that on November 3 he told Lee that Lee was being laid off because "business is slow and we are not making any money here in this department, anyway" ; and that he did not tell Lee that he was being laid off for poor and slow workmanship because he "wanted to spare the man's feelings." 11 Edward Ginsberg's duties included checking the work cards and time cards of the mechanics and other employees working on cars. 15 A "line mechanic" performs major tune-up jobs and all other intricate mechanical jobs. These mechanics are paid a much higher late of pay than Lee's job classification called for. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondents' answer averred that, "among other reasons," Lee was dis- charged "because of the falling off of work, the careless nature of his work, the fact that he took too long to do simple jobs, and his general inefficiency." The reasons advanced by the Respondents do not withstand scrutiny. The Respondents' claim, as told to Lee at the time of his discharge, that Lee's services were being terminated for economy reasons was patently false for admittedly a new lubrication and new car check-up man was hired on the second day after Lee's termination.16 The Respondents' further contention that Lee was an in- efficient employee is refuted by the admitted evidence that Lee received a wage increase within 6 weeks of his discharge and many weeks after Lee had allegedly performed unsatisfactory work on the Horner and Houghton jobs. The beer can opener incident, incredible as the testimony of Parker is regarding this incident, certainly played no part in the determination to discharge Lee because admittedly the Respondents did not-know about it until months after Lee had been dis- charged. The fact that Lee's work on the Horner car was not considered un- satisfactory at the time it was performed is clear from the fact that Lee had not been told by Parker, or by anyone else, that his work thereon was unsatisfactory. Moreover, Parker admitted that the Horner job was a major one and a job usually assigned to a line mechanic, which admittedly Lee was not. The only reprimand Lee received from Parker respecting the Houghton incident was Parker's state- ment, after Lee had filled the differential with grease the second time, to be sure to tighten the plug "this time." So far as the contention that Lee took too long to perform his work is concerned, the Respondents failed to introduce any records which would substantiate this contention, although such data was available to the Respondents. This omission was particularly significant here because of the great stress laid upon Lee's slowness in performing his tasks in comparison with (1) other lubrication, men employed by the Respondent from time to time, (2) the factory's estimated time for lubricating a car, and (3) the time taken by Lee lubricating cars during the first 30 days of his employment. Upon the entire record in the case, the undersigned finds that Lee was selected for discharge because of his union activities and not for the reasons advanced by the Respondents. This finding is buttressed by (1) the interrogation of Lee by Miller in mid-October regarding Lee's designation of the Union as his collective bargaining representative; (2) Parker's questioning of Lee a week later as to whether Lee had signed "a petition to get a union in the shop" ; (3) Miller's and Parker's inquiries being made at a time when the Respondents knew a Board- conducted election among the employees for the purpose of selecting or repudiat- ing the Union as their bargaining representative was imminent; (4) the Re- spondents' hostility to the Union as evidenced by (a) Louis Ginsberg's statement to Fike early in October, "I am going to fire every damn one of you that joined" the Union, (b) Edward Ginsberg's statement to Haken about mid-September, "So long as we can help it we won't have a union here," and (c) Louis Ginsberg's statement to Haken on September 23, "I had a union shop back in Des Moines, Iowa, and as long as I can help it I won't have another union shop here." More- over, the shifting and unsupported grounds assigned by the Respondents for dis- charging Lee are further persuasive indications that antiunion reasons rather than the Respondents' asserted reasons for their action was the motivating reason. for the discharge Being unable to show that Lee's discharge was due to eco- nomic reasons, as Lee was told was the reason at the time of his discharge, the Respondents then sought to explain their actions by maintaining that Lee was an inefficient worker, took too long to do his work, and performed faulty work. 16 Simon, the man hired , admittedly had no previous experience as a new car check-up man CALIFORNIA WILLYS 339 including his work on the Horner and Houghton cars. As found above, the work on the Horner and Houghton jobs was done almost 2 months prior to Lee's discharge and prior to the time he received a wage increase and therefore it is reasonable to infer, and the undersigned does infer , that Lee's work on those jobs was not a contributing factor leading to his discharge . With respect to the contention that Lee was an inefficient employee there is no credible evidence in the record to support such a contention . As to the further contention that Lee was a slow worker, which Edward Ginsberg and Miller testified was the motivating cause of his discharge , the Respondents failed to produce any docu- mentary evidence to substantiate this contention but relied upon the conclusion- ary testimony of the Respondents and of Parker . The undersigned rejects as unconvincing and unreliable the contention that Lee was a slow worker. Arthur Haken was employed by the Respondents as a line mechanic from mid-September 1949 until his discharge on November 3, 1950. The Respondents' answer averred that Haken was discharged , "among other reasons, because of the falling off of work , the careless nature of his work, the fact that he took an excessively long time to do simple jobs, his dissatisfaction with his employment and employers , his constant use of foul and opprobrious language, particularly toward and about his employers , and the fact that he had been seeking work elsewhere for a period of several months." At the hearing, Respondents ' counsel stated on the record that he does not contend that Haken was not a capable , qualified mechanic, but contended that Haken's discharge was for the reasons stated in the answer. The con- tention that Haken was discharged because of lack of business is not supported by credible evidence In fact, the record affirmatively discloses that the state of the Respondents ' business played no part in the determination to discharge Haken and this defense apparently was discarded at the hearing because no evidence was introduced with respect thereto. Furthermore, no reliable or credible evidence was received with respect to the defense that Haken was seeking "work elsewhere for a period of several months." Miller testified that one of the reasons he decided to discharge Haken was the latter's use of foul language. In support thereof he testified that several days prior to Haken's discharge the latter came to him and claimed that Edward Ginsberg had made an error detrimental to Haken in figuring Haken's pay check and during the discussion which ensued, Haken cussed and used foul language with respect to Edward Ginsberg ; that he did not report the incident to Edward Ginsberg but reported it to Parker ; that on another occasion he heard Haken use foul language in the presence of a female employee and at other times he heard Haken use foul language toward a male employee. Miller further testified that Haken was a constant "griper"; that he com- plained that Parker did not give him as much work as he had given the other mechanics ; 17 that in June 1950, he and Parker decided that Haken was an undesirable employee and upon the "the first opportunity we had we [would] replace" him ; that he and Parker decided not to discharge Haken in June, because the Respondents were in the height of their busy season and hence it would "be foolhardy" to let Haken go at that time without a suitable replace- ment ; that Haken did speedy work on customers ' cars but took too long repairing company cars ; 18 that whereas the other mechanics also took too long 11 The mechanics worked on a so-called piecework basis receiving compensation only when actually working on a job 11 On customers ' cars Haken received one -half of the 3 dollars per hour for the labor cost charged the customer He was paid $1 50 per hour for work on the Respondents' used cars. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD repairing company cars, Haken was the worst offender ; and that despite Parker's repeated requests to Haken to speed up the time on company cars, Haken failed to do so. On cross-examination Miller testified that Haken was discharged because {1) he had rehired a former employee whom he considered "the finest man we have ever had employed," and (2) when Haken "cussed out my brother-in-law, Edward Ginsberg in that manner, I felt sure that [Haken] had no use for fEdward Ginsberg], or the rest of the family . . . and that we had no use for [Haken] from then on in." Edward Ginsberg testified that Haken took too much time repairing company cars, but that he never said anything to Haken about it but took the matter up with Parker ; that while the other mechanics spent more time on company cars in comparison with time spent on customers' cars doing comparable jobs, Haken was the worst offender ; that the money earned each week by Haken and the other two mechanics usually amounted to the same; and that while he bad nothing to do with Haken's termination of employment, he was told by Miller shortly before it took place that Haken was being discharged because (1) Haken's work was not good enough, (2) the repair shop work was slack, and (3) Haken was having too many "comebacks.s10 Parker testified that Haken's work on large jobs was satisfactory but on small jobs Haken's work was sloppy and indifferent ; that Haken had more than the normal amount of "comebacks"; that he often cautioned Haken to be more careful about his work ; that Haken constantly used foul language and he was always worried that Haken might use such language within the hearing of female customers ; that he cautioned Haken about the use of such language without avail; and that he never used foul or opprobrious language in the plant nor did the other mechanics. Parker admitted that on several occasions he cautioned all the mechanics against the use of foul language ; that it was common practice of all the Respond- ents' mechanics "to stretch out their time on company cars and lessen the time on customers' cars" ; that a mechanic (the one that Miller hired immediately prior to Haken's discharge) was put to work about 10 days after Haken's dis- missal ; and that he, himself, made the decision to discharge Ilaken. Haken testified that on November 3 Parker told him that be and Lee were being laid off ; that when he asked the reason therefor, Parker said, "business is slow" ; that while discussing his own layoff with Parker, the latter said, he (Parker) had "been arguing with the old man [Louis Ginsberg] like hell all afternoon, trying to persuade Louis Ginsberg to keep" him; and that just before leaving the plant Parker said to him that any time he needed a reference, Parker would give him a good recommendation. Haken admitted that he used foul language around the shop ; that on several occasions Parker cautioned him with respect thereto; 20 and that several times he cursed the management but, he added, he did so-in fits of anger. Regarding Haken's discharge and the events leading up to it, Parker testified, on sur-rebuttal, that he did not tell Haken that he tried to convince Louis Gins- berg to retain Haken, but it was he who was arguing with Louis Ginsberg to discharge Haken. He further testified that he did not tell Haken that he would give Haken a good recommendation, but what he said to Haken was that if any- one inquires "and I can't do you any good, I won't do you harm " - - The reasons assigned by the Respondents to justify Haken's discharge do not ring true. First, the Respondents say that they discharged him because business did not warrant his retention. This contention is inconsistent with the Respond- "Comebacks" means cars returned by customers because of faulty repair jobs. 20 Haken places these remarks of Parker as having taken place in July or August 1950. CALIFORNIA WILLYS 341 ents' conduct in rehiring a former employee immediately prior to Haken's dis- charge. Furthermore, no records, although available, were produced to support this contention. The contention that Haken's discharge was in part attributable to the excessive amount of time put in on company cars in comparison to the time spent on customers' cars for comparable work is refuted, not only by Parker's admission that all mechanics were guilty of the same offense and Edward Ginsberg's admission that all mechanics received the same compensation each week,21 but by the Respondents' failure to produce the available work and time cards of Haken and the other mechanics. Admittedly Haken used foul and opprobrious language while at work and Parker cautioned him against it. However, the undersigned is convinced, and finds, that Haken's use of such language played no part in the Respondents' deter- mination to discharge Haken. Likewise, the undersigned does not believe that Haken's cursing of Edward Ginsberg several days prior to his discharge was a contributing cause for the Respondent's action. Upon the entire record in the case the undersigned is convinced, and finds, that Haken's activities in behalf of the Union were the reason for his discharge. Haken's discharge was foretold on two occasions, first by Edward Ginsberg, and again by Louis Ginsberg, each having warned him in September that the Re- spondents would not tolerate a union in the plant. Despite these warnings Haken admitted to Miller that he was a paid-up member of the Union. Further- more, the timing of the discharge, shortly after the Respondents became aware that an election, based upon the Union's petition for certification, was imminent, would appear to be more than a mere coincidence. Ernest .Fake was employed continuously by the Respondents as a lotboy, porter, and sometime lubrication man from about November 1947 until his discharge on November 17, 1950. In the charge filed herein by the Union, it was alleged that Fike was discharged in violation of the Act. The complaint, as originally issued, did not include any allegation with respect to Pike. Nevertheless, the Respondents' answer denied this allegation of discrimination contained in the charge and affirmatively averred that Fike was "laid off because of his neglect of his work, and, that he was shortly thereafter reemployed and at all times since has been and is now in the employ of the Respondent." At the hearing, the General Counsel's motion to amend the complaint to include an allegation that Pike was laid off in November 1950 in violation of the Act was granted over the objection of the Respondents' counsel. Louis Ginsberg testified that he "had no ill feelings against Ernest. He was always fine. He always minded me. I thought a lot of him," but that for a period of about a few weeks immediately prior to Pike's layoff, he noticed that Fike was taking too long performing his duties and on about a dozen occasions during this period he asked Pike, "What is wrong with you?" and each time Pike would reply, "I don't feel good, I am tired" ; that during the said period the used car salesman complained to him regarding Pike's sloppy work and because of it the salesman could not properly present the cars to the prospective cus- tomers ; that as a result of these complaints and from his own observation of Pike's work he asked Parker to "raise Cain with" Pike ; that not only would Pike do unsatisfactory work, but Fike would walk around the lot "dragging his feet" ; that when he remonstrated with Pike about the manner in which Fike performed the tasks, Pike would either say, "I don't feel good," or "I don't feel too good. I have been out late. I don't know. I will try to do better" ; that despite his talks with Pike, the latter's work and mannerisms became worse ; and that 21 Whenever possible, Parker assigned jobs to the mechanics in rotation so that there would be an equal distribution of the work and hence equal distribution of earnings. 998666-vol. 98-53-23 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finally he told Miller "to let [Fike] go for a few weeks to get rested up. .. . He can go ahead and rest up and when he straightens up then we would take him back, . . ." Ginsberg further testified that he received "lots of complaints" from his son, Edward , and from Parker about Pike's failure to punch the time clock; that even though he spoke to Fike "many times" about this infraction, Pike's negligence in this respect became more flagrant. Miller testified that for about 2 weeks immediately prior to November 17, Pike was lazy, worked in a lackadaisical manner, and took no interest in his work; that during this 2-week period Parker came to him many times complain- ing that Pike was not doing his work properly ; that Pike, although a married man, would remain away from home all night and because of Pike's nocturnal excursions his work suffered ; that on November 17, he called Pike into his office and said to him, "Ernie, Mr. Ginsberg has had you in the office recently before this. I have talked to you before. Mr. Parker has talked to you before. And you don't seem to care what we have to say to you. Now, listen, I am not firing you. I am giving you a layoff. I want you to go out and rest and come back ready to work" ; and that 2 weeks later he called Pike on the telephone and asked him to return to work but Pike declined, stating that he had a better job. Edward Ginsberg testified that despite the fact that he complained many times to Pike about the latter's failure to punch the time clock in accordance with the Respondents' policy, Pike never regularly did so ; that after each remonstration, Pike would punch the time clock for a few days and then would fall back into the habit of omitting to do so ; and that for a short period im- mediately prior to November 17, Pike's work became more and more unsatis- factory and whenever he would speak to Fike about his unsatisfactory work, Pike would shrug his shoulders and say, "I will do better." Parker testified, "I personally made the complaint that I wasn't getting full cooperation [from Pike]. He was coming in late mornings to work and he would not punch the clock regularly. He didn't seem to want to take orders' on anything. He seemed to do more what he wanted to do, rather than what I wanted done. . . . That is the reason I made the recommendation to lay him off. I figured possibly he was tired or wasn't feeling good"; that Pike told him on several occasions, immediately prior to November 17, that he (Fike) had remained away from home the previous night ; that on several occasions when he came to work in the morning he found Pike asleep in the hut on the used car lot and on those occasions Pike told him about remaining away from home the previous night ; that he complained to Pike on numerous occasions because Pike failed to punch the time clock and each time Pike promised to punch the clock regularly ; 22 and that from the very beginning of his association with the Respondents in February 1950, until Pike's layoff, Pike never regularly punched the time clock. On cross-examination Parker testified that since his association with the Re- spondents, Pike failed to punch the time clock regularly, was lazy, and "didn't like to take orders" ; that Louis Ginsberg, in his presence, sometime about March 1950, told Pike that Fike had to mend his ways, obey Parker's orders, punch the clock regularly, and if Fike did not mend his ways he would be discharged ; that for a week or 10 days thereafter he found no fault with Pike's work or with his failure to obey orders, but that after that period Pike "fell 22 Parker was asked three times on direct examination regarding the number of times he remonstrated with Fike regarding the latter 's failure to punch the time clock In answer to the first question , he replied, "On numerous occasions," to the second question, "On several occasions ," and to the third question , "constantly." CALIFORNIA WILLYS 343 back to his old ways" ; and that he could not remember whether or not he again reported Pike's neglect of duties. Fike admitted that there was a period of time when he did not punch the time clock regularly. He added, however, that it occurred about a year or so prior to his November 17 layoff; that he was reprimanded then for his neglect; and that thereafter he punched the time clock regularly. Pike testified that within 2 weeks of his layoff, Louis Ginsberg asked hint "who first started talking about the union, was it Art Haken or Clifton John- son?" and he replied that everyone was talking about it; that on November 17, while in Miller's office, Miller said to him that he had been sick and he needed a rest and therefore he should take a couple of weeks off ; that prior to that date be did have a bad cold but had fully recovered therefrom by November 17; that he never asked for a leave of absence because of the cold or to rest; that pursuant to Miller's instructions he left the plant on November 17; that on December 7 he returned to the plant in order to vote in the Board-conducted election held that day, but was not permitted to vote because Miller announced that his layoff was permanent ; that a week or two after the aforesaid election Miller telephoned him and requested him to come to the plant; that a few days later he went to the plant, saw Miller, was asked by Miller if he was ready to re- turn to work ; that he responded, "I thought I was fired," to which Miller replied, "Well, I had to do that because I didn't want you to vote in the election" ;'3 that he then told Miller he would report for work after the first of the year; that when he returned-to the plant on or about February 1, 1951, he refused the proffered job unless he was given a wage increase ; and that when Louis Ginsberg agreed to a 5-cent per hour increase he went to work. Pike testified that after he had been on the job for 4 or 5 days Miller said to him, "If you come back here to work and carry a union card, you will not have a job." Miller denied making the aforesaid remark. He testified that he knew that between the time of his November layoff and his return in Febru- ary, Pike had been employed by a concern which had a contract with a union which obligated Pike to become a member thereof and hence he assumed that Pike had a union card. The undersigned is of the opinion, and finds, that Miller made the remark attributed to him by Pike. The undersigned further finds that Pike was a credible witness and accordingly accepts as substan- tially in accord with the facts Pike's version of his conversations with each Respondent and with Parker. The demeanor, while they were on the witness stand, of Louis Ginsberg, Edward Ginsberg, Sidney Miller, and Herman Parker evidenced to the undersigned a desire on their part to withhold the true facts. The Respondents, moreover, failed to produce any time cards, although un- doubtedly available, to corroborate their conclusionary testimony regarding Pike's refusal to punch the time clock regularly. Upon the entire record in the case, the undersigned finds that Pike's layoff on November 17, 1950, was violative of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III, above, occurring in connection with the operations of the Respondents' business described in Sec- tion 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 unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 23 Miller denied making the above-quoted remark. The undersigned rejects his denial and finds Fike's version of what transpired at that interview to be substantially in accord with the facts. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices vio- lating Section 8 (a) (1) and (3) of the Act, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondents have discriminated in regard to the hire and tenure of employment, and the terms and conditions of employment, of Lynwood Lee and Arthur Haken, the undersigned will recommend that the Respondents offer them immediate and full reinstatement to their former or substantially equivalent positions,24 without prejudice to their seniority and other rights and privileges. The undersigned will also recommend that the Respondents make Lee and Haken whole for any loss of pay they may have suf- fered by reason of the Respondents' discrimination against them, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of his respective discharge to the date of the Respondents' offer of reinstatement, less his net earnings during that period" Having found that the Respondents discriminatorily laid off Ernest Fike on November 17, 1950, it will be recommended that the Respondents make him whole for any loss of pay suffered by him from that date to the time when he was subsequently offered reemployment, less his net earnings during said period. Loss of pay shall be computed and paid in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. • It is further recommended that the Respondents be ordered and directed to make available to the Board and its agents all their records pertaining to an' analysis of the amounts due as back pay. The unfair labor practices found to have been engaged in by the Respondents are of such a character and scope that in order to insure the employees their full rights guaranteed them by the Act it will be recommended that the Respond- ents cease and desist from in any manner interfering with, restraining, and coercing their employees in their right to self-organization. It will be further recommended that the allegations of the complaint that the Respondents violated the Act by discharging Clifton Johnson be dismissed. Upon the basis of the foregoing findings of fact, and upon the record as a whole, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists, District Lodge No. 94, and Local Lodge No. 1186, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Lyn- wood Lee, Arthur Haken, and Ernest Pike, thereby discouraging membership in International Association of Machinists, District Lodge No. 94, and in Local Lodge No. 1186, the Respondents have engaged in, and are engaging in, unfair labor practices, within the meaning of Section 8 (a) (3) of the Act. 3. By interrogating their employees regarding their union memberships, ac- tivities, and sympathies, by informing their employees that the Respondents would not permit a union in their establishment, by threatening their employees with discharge if the employees remained or became members of the Union, thereby interfering with, restraining, and coercing employees in the exercise of a` See The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch, 65 NLRB 827. zs See Crossett Lumber Company, 8 NLRB 440. CALIFORNIA WILLYS 345 the rights guaranteed in Section 7 of the Act , the Respondents have engaged in and are engaging in unfair labor practices , within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices , within the meaning of -Section 2 ( 6) and ( 7) of the Act. 5. By discharging Clifton Johnson on September 23, 1950, the Respondents did not violate the Act. [Recommendations omittedfrom ;p lcation3iin trhifs volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 interrogate our employees relative to their union affiliations and activities or the union affiliations and activities of their fellow employees, threaten our employees with discharge if they become or remain members of any union , announce that we will not permit a union within our establish- ment, or in any other manner interfere with, restrain , or coerce our em- ployees in the exercise of their right to self-organization , to form labor organizations , to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No. 94, or LOCAL LODGE No. 1186, or any other labor organi- zation , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all of such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to Lynwood Lee and Arthur Haken immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of our dis- crimination against them. . WE WILL make Lynwood Lee, Arthur Haken, and Ernest Pike whole for any loss of pay suffered as a result of our discrimination against them. All our employees are free to become or remain 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 employee because of membership in or activity on behalf of any such labor organization. SIDNEY MILLER , EDWARD GINSBERG, AND LOUIS GINSBERG, COPARTNERS, DOING BUSINESS AS CALIFORNIA WILLYS, Employer. By ------------------------------------------------ (Representative ) ( Title) Dated ---------- ---------- This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced, or covered by any other material.