E. R. Goddard & Co., Inc.

E. R. GODDARD & COMPANY, INC. 849 CONCLUSIONS OF LAW 1, Locals Nos. 37, 3, and 6, United Packinghouse Workers of America, CIO, 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 employees named in Appendix A, attached hereto, thereby discouraging membership in the above-named labor organizations, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] E. R. GODDARD & COMPANY, INC. and AUTOMOTIVE, PE- TROLEUM, AND ALLIED INDUSTRIES EMPLOYEES UNION, LOCAL 618 , affiliated withthe INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL. Case No. 14 -CA-798. June 30, 1953 DECISION AND ORDER On March 27, 1953, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent also requested oral argument. This request is hereby denied because, in our opinion, the record, exceptions, and brief adequately present the issues and the positions of the parties. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Exam- 'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel LMem- bers Houston, Styles, and Peterson] 105 NLRB No 131 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD iner to the extent indicated below and with the following additions and modifications:-' 1. The Respondent moved to dismiss the complaint on the grounds that its operations are essentially local, that it is not engaged in commerce within the meaning of the Act, and that the assertion of jurisdiction in this proceeding would not effectuate the policies of the Act. We do not agree. The Respondent is engaged , at Robertson, Missouri, in the sale and servicing of trucks and farm machinery and equipment. The record reveals that, during the 12-month period from October 1, 1951, to September 30, 1952, the Respondent purchased goods and equipment valued at more than $810,000, of which amount goods valued at approximately $253,000 were purchased at, and shipped directly from, points outside the State of Missouri and goods valued at over $186,000, although purchased locally, originated outside the State. During this same period, the Respondent shipped goods or performed services outside the State of Missouri valued at at least $3,000.3 More than 50 percent of the Respondent's total purchases during this period consisted of farm equipment, trucks, and parts which were manufactured outside the State of Missouri and were purchased from the International Harvester Company, pursuant to five dealer sales -and-service agreements author- izing the Respondent to handle International Harvester products. These agreements provide that the International Harvester Company is to retain a substantial degree of control over the Respondent's operations with respect to such elements as the sufficiency of the Respondent's sales-and-service facil- ities, inventories , accounting records and financial reports, sales and inventory reports, sales promotion and advertising of International Harvester products, and the Respondent's use of International Harvester's name and advertising materials. Although, as the Respondent asserts , these sales -and- service agreements do not grant the Respondent any exclusive sales territory or limit the Respondent's sales territory and they 2 The Intermediate Report contains several misstatements of fact or inadvertences, none of which affects our ultimate conclusions herein However, we note the following corrections: (1) The Respondent's brief to the Trial Examiner, as amended, states that, during the year in question, the Respondent received an indirect inflow of goods or mate- rials originating outside the State of Missouri valued at $186,661 93, not at $481,975, as indicated by the Trial Examiner; (2) the Trial Examiner inaccurately stated that the Re- spondent did not suggest any unit as being more appropriate than the unit set forth in the complaint, as the Respondent did assert, in its answer to the complaint that all its em- ployees, excluding office and clerical employees, executive and operative employees, guards, and supervisors as defined in the Act, constituted an appropriate unit within the meaning of Section 9 (b) of the Act; (3) the record shows that William Schaper was granted a 10- cent an hour wage increase on March 6, 1952, more than 14 weeks before his discharge on June 13, and not 9 weeks before his discharge, as the Trial Examiner found; and (4) although the Trial Examiner found that, in June 1951, Raymond Schaper was put on the Respondent's payroll at $6 a week, the record shows that he was never actually on the Respondent's payroll until he was hired on June 9, 1952 3In view of our findings herein, we deem it unnecessary to pass upon the Trial Examiner's findings with respect to the Respondent's sales to purchasers giving out-of-State addresses. E. R. GODDARD & COMPANY, INC. 851 do not prevent the Respondent from handling competitive lines of equipment , the Board has often held that these factors are not determinative of whether or not a retail establishment operates as part of the distribution system of a multistate enterprise ." As more than 50 percent of the Respondent's purchases are made from the International Harvester Company pursuant to agreements whereby International Harvester main- tains a substantial degree of control over the manner in which the Respondent operates its business in the distribution of International Harvester products , we find that the Respondent operates as an integral part of a multistate enterprise) On the basis of all these facts, it is clear , and we find, that the Respondent is engaged in operations affecting commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case . Accord- ingly, the Respondent ' s motion to dismiss the complaint is hereby denied. 2. The Trial Examiner found , and we agree , that the Respond- ent, independently of its other violations of the Act , violated Section 8 (a) (1) of the Act by the following conduct of Plant Manager Marion Fuchs , which was clearly unlawful: (a) Manager Fuchs' polling of the employees , on the after- noon of June 10, to determine whether or not they were in favor of the Union. (b) Fuchs' statements to a group of employees in the setup department , including employees William Schaper , Raymond Schaper, William Clyde Polson, and Paul Lassarre , shortly before the poll, that if the Union came into the plant: ( 1) There would be no more overtime ; ( 2) there would be no more extra days of work ; ( 3) the employees would not receive a Christmas bonus ; and (4 ) the Respondent could no longer keep Raymond Schaper in its employ. (c) Fuchs ' interrogation of Paul Lassarre , approximately a week before the poll, as to what Lassarre thought about the Union. 3. We also agree with the Trial Examiner's conclusion that the Respondent discriminatorily discharged Raymond Schaper on June 10, 1952, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. The facts relating to the employment and discharge of Raymond Schaper are clear . In July 1950 , William Schaper, an employee in the Respondent ' s setup department, asked Leonard Weber , the Respondent ' s farm machinery department manager, who had jurisdiction over the setup department, whether he could bring his son, Raymond , then 15 years old, to the plant with him in order to keep the boy "off the streets" and to enable him to learn the trade . Weber agreed and, during the summer of 1950 and again during his summer "Cooley Sons Co, 102 NLRB 59; Hallam R. Boggs Truck and Implement Co, 95 NLRB 1443. 5Cooley Sons Co., footnote 4, supra; Hallam & Boggs Truck and Implement Co , footnote 4, supra; Hallam & Boggs Truck and Implement Company, 92 NLRB 1339 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vacation from school in 1951, Raymond Schaper worked in the setup department, primarily helping his father by doing odd jobs and running errands, but occasionally helping some of the other employees in the setup department. Although Raymond Schaper was not on the Respondent's payroll during the summers of 1950 and 1951 and no work was assigned to him, the Respondent did give him "spending money" of $2 a week and $6 a week, respectively, during those two summers. In June 1952, William Schaper asked Plant Manager Fuchs if the Respondent could actually employ Raymond during his summer vacation and, on June 9, Fuchs hired Raymond to help out in the setup department, at $20 a week, admittedly with the intention of keeping him for the entire summer if he proved satisfactory. On the same day that Raymond was hired, representatives of the Union met with Fuchs and requested recognition of the Union as the representative of the Respondent's setup depart- ment employees, parts department employees, drivers, lubri- cation men, and porters. Fuchs did not then question the Union's majority and informed the union representatives that he would check with other officials of the Respondent and "let them know." However, on the following day, June 10, Fuchs con- ducted a poll among the employees in the unit requested by the Union to determine whether or not the employees were in favor of the Union. As set forth above, Fuchs addressed the employees before the poll, threatening loss of benefits if the Union came into the plant and informing them that if the Union were successful, the Respondent could no longer keep Raymond Schaper in its employ. Almost immediately after the poll, which indicated that the employees were in favor of the Union, Raymond Schaper was called to Weber's office and Weber informed him that he was being laid off as the Respond- ent no longer needed him. The Respondent contends that it discharged Raymond Schaper because he was too young and too small for the job. Weber, who was responsible for Raymond's originally coming to the plant in the summer of 1950, testified that he, not Fuchs, made the decision to discharge Raymond. Weber asserted that Fuchs had hired Raymond on June 9 without consulting Weber and that, when Weber saw the boy around the plant later that day, he discussed the matter with Fuchs and informed him that he did not want Raymond Schaper in the setup department because, if they were going to hire another man in that department, he wanted someone older and stronger for the job. According to Weber's testimony, Fuchs left the decision up to him. The following day, Weber discharged Raymond Schaper, telling him merely that the Respondent did not need himany more and that Weber would let him know when there was work available for him. We find no merit in the Respondent's contention. It is clear, and Fuchs so testified, that when Fuchs hired Raymond Schaper E. R GODDARD & COMPANY, INC. 853 on the morning of June 9, he intended to employ Raymond during his entire summer vacation if he proved satisfactory. The Respondent does not assert that, during the 2 days that Raymond Schaper worked at the plant, he had proved unsatis- factory, and Fuchs himself testified that he could not recall why Raymond had been fired. Nor can we accept Weber's asserted reasons for having discharged Raymond Schaper. Indeed, it was Weber who first agreed to letting Raymond come to the plant during the summer of 1950, when the boy was only 15 years old, and it was Weber, too, who suggested that the Respondent give Raymond some "spending money" while he was working around the plant. In view of these facts, we deem it highly unlikely that Weber, who had consented to Raymond's working around the plant when the boy was younger and smaller, would have been so violently opposed to Raymond's employment in June 1952 that he would have urged his discharge after Fuchs, Weber's superior, had already hired him. More- over, it is significant that, when Weber discharged Raymond Schaper on June 10, he did not mentionthe reasons asserted at the hearing and, in fact, told Raymond that the Respondent would get in touch with him when there was more work avail- able. On the basis of all the facts, including the summary nature of the discharge, the fact that no reason was advanced by the Respondent at the time of the discharge, the timing of the discharge, which immediately followed Fuchs' polling of the employees, and particularly in view of Fuchs' statement to the employees earlier in the day that if the Union came into the plant, the Respondent could no longer employ Raymond, we are convinced that in discharging Raymond Schaper on the day after he was hired, the Respondent was executing Fuchs' threat that very day to terminate Raymond's employment if the Union succeeded in organizing the employees. Accordingly, we conclude, as did the Trial Examiner, that Raymond Schaper was discharged because of the union activities of the em- ployees and the advent of the Union in the plant, as evidenced by the results of Fuchs' poll. 4. We also find, in accord with the conclusion of the Trial Examiner, that the Respondent discriminatorily discharged William Schaper on June 13, 1952, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. William Schaper was the most experienced and most highly paid employee in the Respondent's setup department, having worked for the Respondent from June 1950 until October 1950 and again from July 1951 until his discharge on June 13, 1952, and having received an individual merit increase of 10 cents an hour 3 months before his discharge. Along with Clyde Poison and Paul Lassarre, the 2 other employees in the setup depart- ment, Schaper attended a meeting at the home of Lassarre's mother on May 27, 1952, where all 3 employees signed appli- cations for membership in the Union. On the afternoon of 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 10, after the Union had requested recognition of the Respondent and shortly before Fuchs conducted the poll of the employees , Schaper was present when Fuchs spoke to a group of employees in the setup department about the Union. Schaper was the most outspoken of the group in attempting to discount the disadvantages which Fuchs threatened would occur should the Union come into the plant, making it clear to Fuchs that he would not object to the loss of overtime and suggesting that the Respondent might be able to make some arrangement with the Union in order to enable it to keep Raymond Schaper in its employ. As stated above, William Schaper's son, Raymond, was discharged, as Fuchs had predicted, immediately after the poll, on the afternoon of June 10. On the afternoon of June 13, Weber came down to the setup department and informed Schaper that he was being discharged. When Schaper later inquired as to the reason for his discharge , Weber informed him that he was being discharged because he was "uncooperative." The Respondent asserted, at the hearing, that it had fired Schaper because , during the last 6 to 10 weeks of his employ- ment, Schaper had lost interest in his work, as evidenced by his unsatisfactory performance of 2 jobs assigned to him during this period. Weber, who testified that he was responsible for Schaper's discharge, stated that the first incident occurred in May; that he received a complaint about a tractor which Schaper had assembled and found, when he went out to service the machine himself, that the hydraulic system was not working properly and that 2 lug nuts and the battery cable were loose. The second complaint , which Weber asserted was the imme- diate cause of Schaper ' s discharge , related to his slowness in assembling a combine during the week immediately preceding his discharge. According to Weber, Schaper had worked on the combine for approximately 41 hours rather than the 21 hours which was the average time required for such a job.' Weber testified that he had first thought about discharging Schaper about 6 to 10 weeks before June 13, when he noticed Schaper's lack of interest in his work, and particularly after the tractor incident in May, and that, during this 6- to 10-week period, he had, on several occasions , discussed the matter with Fuchs, who told Weber that the decision was up to him as he was responsible for the setup department . After discussing the tractor incident with Schaper on May 19, however, and after Schaper had agreed to try to do better in the future, Weber decided to give him another chance. With respect to the immediate cause of Schaper's discharge , Weber testified that Schaper had started work on the combine in question on June 4 and that he did not finish assembling it until Wednesday, June 11, 6 Although Weber testified that he also received a complaint about the manner in which the combine had been assembled and that, during the following week, additional work was required on the combine in order to put it in working condition, this complaint could not have been a factor in Schaper's discharge as it occurred after Weber had decided to dis- charge Schaper E. R. GODDARD & COMPANY, INC. 855 at which time Weber finally decided to discharge Schaper. Weber discussed the matter with Fuchs on June 12 and Fuchs again told Weber to use his own judgment. On the following day, June 13, Weber informed Schaper that he was being fired. Although we do not challenge the testimony of the Respondent's witnesses that the two incidents related above actually occurred, we cannot accept the Respondent's contention that these were the reasons for Schaper's discharge. The Respondent does not assert that Schaper was unqualified as a setup man; indeed, it asserts that Schaper was a capable and experienced setup mechanic, but that he had lost interest in his work. Similarly, although the Respondent relies on the fact that it had received complaints from customers with respect to Schaper's work, it admits that it had also received similar complaints with respect to the work of Clyde Poison, the other full-time setup mechanic at the plant.' Moreover, if Schaper's asserted slow- ness and careless workwere the real reasons for his discharge, we believe that the Respondent would have mentioned these alleged shortcomings to Schaper when it discharged him rather than giving as the reason for his discharge the nebulous charge that Schaper had been "uncooperative." Most convincing to us, however, in determining the actual reasons for Schaper's discharge are the facts surrounding the employment and discharge of Schaper's son, Raymond. The Respondent asserts that it had considered discharging Schaper during a period of 6 to 10 weeks before June 13 and that Fuchs and Weber had discussed the matter several times during this period. The Respondent admits, however, that when Fuchs hired Raymond Schaper on June 9, 1952, he did so primarily as an accommodation to Raymond's father, who wanted the boy to get a little more experience in setup work, and after a discussion with William Schaper as to the boy's employment and wages. Like the Trial Examiner, we deem it highly improbable that the Respondent would have hired Raymond Schaper on June 9, at the request of and as a favor to his father, if, as the Respond- ent contends, it was, at that time, contemplating discharging his father, William Schaper. Accordingly, we believe and find that the Respondent could not have considered discharging William Schaper until sometime after June 9, when it hired Raymond, and that, on the contrary, at least until June 9, it viewed William Schaper as a valuable employee whom it was willing to accommodate. Similarly, we conclude that when the Respondent discharged Raymond Schaper on the afternoon of June 10, without any prior explanation to his father, its attitude toward William Schaper had already changed. Obviously, the Respondent, as of the afternoon of June 10, was no longer interested in obliging William Schaper and had, in fact, decided to dispense with his services. Indeed, on the afternoon of the very next day, the Respondent placed a newspaper adver- 7 Although Paul Lassarre was also employed in the Respondent's setup department and assisted Schaper and Poison in assembling farm equipment, he was employed as a truck- driver. Z91555 0 - 54 - 55 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tisement for an "experienced farm machinery setup man" although, according to the testimony of both Fuch's and Weber, Plant Manager Fuchs was not consulted about Schaper's dis- charge until the afternoon of the following day, June 12. The Respondent points to no misconduct or shortcoming of Schaper's which occurred during this critical period, between the morning of June 9 and the afternoon of June 10, which would account for its sudden change in attitude toward him.° Indeed, the only events which did occur during this period relate to the union activities at the plant. Thus, on June 9, representatives of the Union met with Fuchs and requested recognition of the Union; on June 10, during Fuchs' discussion with the employees about the Union, Schaper indicated his prounion sentiments; and, shortly afterwards, on the afternoon of June 10, Fuchs' poll of the employees showed that the em- ployees were overwhelmingly in favor of the Union. We are convinced, therefore, that it was such union activities and particularly Schaper's patent interest in them, as manifested by his comments to Fuchs during the discussion preceding the poll, which were responsible for the Respondent's change in attitude toward Schaper and for its decision to discharge him. Accordingly, we conclude, as did the Trial Examiner, that the Respondent discharged William Schaper, on June 13, 1952, not because of his asserted slowness or carelessness in per- forming his work, but because of his union activities and prounion sentiments, and that the Respondent thereby violated Section 8 (a) (3) and 8 (a) (1) of the Act. 5. Unlike the Trial Examiner, however, we find that the Respondent did not violate Section 8 (a) (5) of the Act by refusing to bargain collectively with the Union as the representative of the Respondent's setup department employees, parts department employees, drivers, lubrication men, and porters, as requested by the Union on June 9, 1952. The complaint alleges, and the Trial Examiner found, that all garage laborers, utility men, lubrication, tire and battery service men, and all other employees in the Respondent's garage, shop and parts department, excluding mechanics and/or machinists, office and clerical employees, executive and pro- fessional employees, guards, and supervisors as defined inthe Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. We do not agree. The unit requested by the Union and found appropriate by the Trial Examiner includes mechanics employed in the Re- spondent's setup department, but excludes mechanics and/or 8Schaper's asserted slowness in assembling the combine could not have been responsible for this change in attitude as Weber himself testified that he did not decide to discharge Schaper until after he had finished assembling the combine, on the morning of June 11, and after he had spent 41 hours on the job. E. R. GODDARD & COMPANY, INC. 857 machinists employed in the Respondent's service department.9 The record reveals that the mechanics in the setup department are responsible for assembling, checking, and putting into operating condition all new equipment sold by the Respondent, while those in the service department are responsible for repairing and servicing equipment, either` new or used, after it has been delivered to customers. Although the employees in the service department may possess a greater degree of skill than do those employed in the setup department, they do not possess the craft skills of machinists. The work of the service mechanics and the setup mechanics differ only in that the former involves more complex machinery and is some- times performed on the customers' premises. Moreover, the record reveals that there is interchange between the employees in the setup and service departments. As the Respondent' s sales business is seasonal, its need for setup mechanics is greatest from spring until fall and is very slight during the period from fall until spring. Repair work, on the other hand, although fairly steady during the entire year, is slightly greater during the winter, when farmers are not using their equipment. Accordingly, rather than lay off setup mechanics during the fall and winter, the Respondent has used them in the service department 10 and, similarly, during the period when the setup department is particularly busy, service mechanics have been used on assembly work. In view of the similarity of skills, duties, and working conditions of the setup mechanics and the service mechanics and the interchange of employees between these two depart- ments, we find that the unit requested by the Union, excluding, as it does, mechanics employed in the service department, is inappropriate, and that only a unit, including the service depart- ment mechanics is appropriate for the purposes of collective bargaining." As the Union never requested the Respondent to recognize it in the unit which we find to be appropriate, and it at no time represented a majority of employees in the appro- 9 In finding this unit appropriate, the Trial Examiner relied in part on a jurisdictional agreement between the union and the International Association of Machinists, applicable to garage employees, which provides that the latter shall have jurisdiction over, or repre- sent, the skilled machinists or mechanics and that the Union shall represent the remaining production and maintenance employees. The Board has often held, however, that a union's jurisdictional limitation with respect to representing certain employees is not a valid reason for excluding such employees from a unit. Herpolsheimer Company, 100 NLRB 1452; C. C. Anderson Stores Company, 100 NLRB 986 10 William Schaper himself testified that he had been sent out on a service call in the fall of 1951 and again about 3 weeks before his discharge. iiCooley Sons Co., footnote 4, supra Hallam & Boggs Truck and Implement Company, footnote 5, supra. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD priate unit,12 we conclude that the Respondent did not violate Section 8 (a) (5) of the Act. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, E. R. Goddard & Company, Inc., Robertson, Missouri, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Automotive, Petroleum, and Allied Industries Employees Union, Local 618, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, AFL, or in any other labor organization of its employees , by discharging and refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Conducting polls among its employees in order to deter- mine their sentiments with respect to the Union ; interrogating its employees with respect to their feelings about the Union; and threatening its employees with reprisals , including loss of employment and loss of benefits, if the Union should succeed in organizing its employees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization , to form labor organizations , to join or assist Automotive, Petroleum, and Allied Industries Employees Union, Local 618, affiliated with the International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America, AFL, or any other labor organization , to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in 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 William Schaper immediate and full reinstatement to his former or substantially equivalent position, without prej- udice to his seniority or other rights and privileges. 12 Although the Union did represent a majority of the employees in the requested inappro- priate unit, it at no time represented a majority of the employees in the unit which we find to be appropriate. Thus, as of June 9, 1952, there were at least 13 employees within the appropriate unit, including the setup department employees, parts department employees, lubrication men, body repair men, drivers, porters, and the 5 mechanics in the service department, but excluding Lou Hodapp, whom the Trial Examiner found to be an office clerical employee As of that date, however, and apparently at all times thereafter, only 5 of these employees had indicated a desire to be represented by the Union. E. R GODDARD & COMPANY, INC. 859 (b) Upon his application , offer to Raymond Schaper immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges. (c) Make whole William Schaper and Raymond Schaper, in the manner set forth in the section of the Intermediate Report entitled " The Remedy," for any loss of pay they may have suffered as a result of the Respondent ' s discrimination against them. (d) 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 an analysis of the amounts of back pay due and the rights of reinstatement under the terms of this Order. (e) Post at its plant and office in Robertson , Missouri , copies of the notice attached hereto and marked "Appendix A." 13 Copies of said notice , to be furnished by the Regional Director for the Fourteenth Region, shall , after being duly signed by the Respondent ' s representative , be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty ( 60) consecutive days thereafter , in conspicuous places, including all places where notices to employees are custom- arily posted . Reasonable steps shall betakenbythe Respondent to insure that said notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director for the Fourteenth Region, in writing , within ten ( 10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint , insofar as it alleges other violations of the Act , be, and it hereby is, dismissed. 13 In the event that this order is enforced by a decree of a United States Court of Appeals, there shall 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 " 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, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in Automotive, Petroleum , and Allied Industries Employees Union, Local 618, affiliated with the International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America, AFL, or in any other labor organization of our 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees , by discharging and refusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT conduct polls among our employees in order to determine their sentiments with respect to Automotive, Petroleum , and Allied Industries Employees Union, Local 618, affiliated with the International Brother- hood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, AFL; interrogate our employees with respect to their feelings about Automotive, Petroleum , and Allied Industries Employees Union, Local 618, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, AFL; or threaten our employees with reprisals , including loss of employ- ment or loss of benefits , if Automotive, Petroleum, and Allied Industries Employees Union , Local 618, affiliated with the International Brotherhood of Teamsters , Chauf- feurs, Warehousemen & Helpers of America, AFL, should succeed in organizing our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization , to form labor organizations, to join or assist Automotive, Petroleum , and Allied Industries Employees Union, Local 618, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, AFL, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to William Schaper immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges. WE WILL offer to Raymond Schaper, upon his applica- tion, immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges. WE WILL make whole William Schaper and Raymond Schaper for any loss of pay they may have suffered as a result of our discrimination against them. All our employees are free to become, remain , or to refrain from becoming or remaining , members of the above-named E. R. GODDARD & COMPANY, INC. 861 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 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 nonmembership in any such labor organization. E. R. GODDARD & COMPANY, INC., Employer. Dated .. .............. By.................................................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Pursuant to a second amended charge filed on October 29, 1952, by Automotive, Petroleum, and Allied Industries Employees Union, Local 618, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, herein called the Union, the General Counsel for the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Fourteenth Region (St. Louis, Missouri), on November 3, 1952, issued his complaint 1 against E. R. Goddard & Company, Inc., herein called Respondent, alleging that Respondent had engaged in certain unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), 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 charge, complaint, and a notice of hearing were duly served upon Respondent and the Union. With respect to the unfair labor practices the complaint alleged in substance that Re- spondent (1) since on or about June 3, 1952, has failed and refused to bargain collectively with the Union as the representative of its employees within an appropriate unit, (2) on or about June 10, 1952, discharged Raymond Schaper and on or about June 13 discharged William Schaper to discourage membership in the Union; and (3) from on or about May 1, 1952, interrogated and polled its employees concerning their union membership and threatened and warned them to refrain from engaging in concerted activity. On November 13, 1952, Respondent filed its answer admitting certain allegations of the complaint with respect to the nature of its business, but denying that it was engaged in commerce within the meaning of the Act, and further denying that it had engaged in any unfair labor practices. Pursuant to notice, a hearing was held before me at St. Louis, Missouri, on December 10, 11, and 12, 1952. The General Counsel and Respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the hearing I granted a motion to conform the pleadings to the proof in formal matters and reserved ruling upon a motion by Respondent to dismiss the complaint. This motion is disposed of by the recommendations hereinafter made. The parties waived oral argument and were given until January 1 to file briefs. Sub- I The complaint bears the date of October 3, 1952, which is a date prior to the date of the amended charge as well as the second amended charge. Apparently this date should have been November 3. The complaint, however, was not issued until November 3 and this satisfies the requirement of the Rules and Regulations, Section 102.15, which provide that "after a charge has been filed" the Regional Director "shall issue and cause to be served upon all the other parties a formal complaint" etc 86Z DECISIONS OF NATIONAL LABOR RELATIONS BOARD sequently this time was extended by the Chief Trial Examuter to January 12. On that date both Respondent and the General Counsel filed briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Missouri corporation having its principal office and place of business at Robertson, Missouri, near St. Louis, where it is engaged in the sale, assembly, and service of trucks, tractors, and various farm machinery and equipment, and parts and accessories therefor. It is admitted that during the period from October 1, 1951, to September 30, 1952, Re- spondent's total sales amounted to $962,768 and its total purchases $810,910. Machinery, trucks, parts, and accessories were purchased from International Harvester Company, with whom Respondent has five dealer sales-and-service agreements, amounting to $406,456. All of the equipment purchased from International Harvester originated outside the State of Missouri. During this period Respondent handled goods destined for out-of-State shipment or per- formed services outside the State of Missouri, of the admitted value of $3,627. In addition, Respondent sold over the counter various parts to a value of over $18,000 to purchasers giving out-of-State addresses. The only disagreement between the two parties as to the character of its purchases and sales concerns this amount, the General Counsel contending that it should be classed with the admitted amount of $3,627 in shipments made to customers outside the State, and Respondent contending that these were local sales. The site of Re- spondent's plant is close to the Illinois line, and I am of the opinion that the sales to indi- viduals across the counter were to persons who themselves transported the parts across the State line. I find, therefore, that the total amount of out-of-State sales directly made amounted to $21,849. Respondent, in its brief, admits that it received essential materials directly from sources outside the State of Missouri valued at $253,210, and an indirect flow of goods or materials originating outside the State of Missouri, valued at $481,975. Thus, even accepting Re- spondent's contention that products to the value of only $3,627 were shipped outside the State of Missouri, Respondent's brief concedes that the total of percentages in all categories amounts to 113.1 percent, thus exceeding the minimum requirements set forth in the Rutledge Paper Products decision. ?Accepting, as I do, the General Counsel's contention as to out- of-State shipments and services, Respondent's total out-of-State sales and purchases, in- cluding both direct and indirect purchases, slightly exceeds 156 percent and is thus far in excess of the minimum standards set by the Board in its previous decisions. The General Counsel relies also in its contention that the Board should assert its juris- diction here upon the sales-and-service agreements with International Harvester Company, covering McCormick farm equipment, power units, mild coolers, hauler tractors, and motor trucks. The existence of substantially the same if not identical International Harvester contracts led the Board in Hallam & Boggs Truck and Implement Company 3 to assert juris- diction because of the substantial degree of control by Harvester over the manner in which the company operated its business in the distribution of Harvester products. The Board held that the dealer sales-and-service agreements showed on their face control by Harvester of such elements as price, inventories, service facilities, financial records, insurance coverage, and advertising. The Company, by reasonof these agreements, was found to operate as an integral part of a multistate enterprise. Respondent, though admitting the existence of Harvester sales-and-service agreements and the percentages as set forth above, nevertheless insists that its business is essentially local in character. With this I disagree. I recommend, therefore, that the Board assert its jurisdiction in this case. U. THE LABOR ORGANIZATION INVOLVED Automotive, Petroleum, and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 191 NLRB 625 3 95 NLRB 1443. E. R. GODDARD & COMPANY, INC. 863 which is in turn affiliated with the American Federation of Labor, is a labor organization admitting employees of Respondent to membership A. The refusal to bargain 1 The appropriate unit, and the Union's majority therein The complaint alleges that all garage laborers, utility men, lubrication and battery service men, and all other employees in the garage, shop, and parts department of Respondent, excluding mechanics and/or machinists, office and clerical employees, executive and pro- fessional employees, guards, and supervisory employees as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act The employees in the claimed unit are generally referred to in the record as the production employees The claimed unit excludes mechanics and machinists, employees with greater skill Arlie Collins, a business representative for International Association of Machinists, District No 9, testified that the Machinists and the Union have established as a common practice a working agreement in various garages which provides that the Ma- chinists represent or have jurisdiction of the machinists, mechanics, and teamsters, while the Union shall have jurisdiction over the less skilled employees This agreement is said to be pursuant to a national plan inaugurated by the American Federation of Labor in its efforts to minimize jurisdictional disputes between rival unions Respondent, though in its answer it denies that the unit set forth in the complaint is appropriate, suggests no other unit as being more appropriate its brief is confined exclu- sively to the question of the jurisdiction of the Board and the propriety of its assertion Respondent raised at the hearing, however, a question as to the duties of two employees included in the unit sought for These are Elmer Woolfolk and Lou Hodapp Respondent appears to contend that Woolfolk was employed in its service department as a mechanic or machinist, although Marion Fuchs, Respondent's manager, testified that Woolfolk was a combination porter and lubrication man It seems only that Woolfolk spends some of his time in the service department in the performance of his duties Most of it is spent in the parts department As to Hodapp, it is contended that he was employed in the parts depart- ment and should have been included in the unit However, the testimony of several witnesses whom I credit is that Hodapp was employed principally in the office I find that the unit contended for by the Union, consisting of 9 employees, comprising 3 assemblers, 3 parts men, I driver, 1 lubrication man, and I porter, including Woolfolk and excluding Hodapp, is an appropriate unit No reason appears for considering that a larger unit including machinists and mechanics would be more appropriate or one better designed to represent the employees Employees William Schaper, Elmer Woolfolk, James Capra, W. C. Polson, and Paul Lasserre on May 27 and 28, 1952, signed application cards for membership in the Union, which are in evidence As of May 28, therefore, and at all material times thereafter, the Union represented a majority of the nine employees in the unit found to be appropriate 2 The refusal to bargain a The request On June 9, Ralph Vossmeyer and Carl Gibbs, business agents for the Union, called upon Manager Fuchs at his office and told him that the Union represented a majority of Respond- ent's employees in the unit The uncontroverted testimony of Vossmeyer and Gibbs is that Fuchs on that occasion said that the Respondent would "go along and recognize the Union " It is not contended by Respondent that he questioned the Union's majority status, and he admitted while testifying that he had not asked to see the authorization cards Neither did the Union offer to exhibit the cards The meeting closed upon Fuchs' promising to consult with other officials of Respondent and to get in contact with the Union's representatives on the subject b Respondent's poll of its employees It is admitted that during the afternoon of the following day, June 10, Fuchs called together the 9, and only the 9, production employees who constituted the unit and distributed to them ballots inscribed "for the Union" and "against the Union," and asked them to indicate 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their preference The employees marked the ballots forthwith and dropped them in a box provided by Fuchs Thereupon Fuchs counted the ballots in the presence of the voters. It was found that 6 had been marked for the Union and 2 against it, 1 ballot being adjudged invalid. Respondent's sole defense to the polling of its employees is that one of the employees in the unit had suggested it because he doubted if the Union represented a majority, a doubt which Fuchs himself testified that he shared The Board and the courts have held in numerous decisions that conducting a poll of em- ployees as to their union representation is peruse violative of the Act as being intimidatory as well as a usurpation of the statutory functions of the Board 4 c Other interference , restraint , and coercion On June 10, prior to the poll, Fuchs talked to several of the employees concerning the Union William Schaper, and Raymond, his son, both of whose subsequent discharges are hereinafter discussed, as well as William Poison, testified that Fuchs told them in a group that there would be no hard feelings if the employees voted for the Union, but that there would not be any more overtime if the Union came into the plant and that Respondent could no longer employ Raymond Schaper Paul Lassarre testified that Fuchs remarked to him that a union representative had been around the plant, and said that a majority of the em- ployees had signed up in the Union and asked Lassarre what he though about it Fuchs also said, according to Lassarre, that if the Union came in there would be no Christmas bonus, no extra days of work, and no overtime Fuchs, while testifying, did not specifically deny making statements with respect to changed working conditions if the Union succeeded in organizing the employees, but stated that he did not recall making the statement respecting Raymond Schaper I find that he made in substance the statements related above Conclusions It has been found that on June 9 when the Union asked Respondent to recognize it as the representative of the employees Fuchs, on behalf of Respondent, said that Respondent would "go along and recognize the Union," asking time only to consult with the other of Respond- ent's officials On the following day Fuchs himself conducted a poll among the employees which, although violative of the Act, did show that a majority of the employees in the unit favored the Union Preceding the poll, as has been found, Fuchs questioned several em- ployees with respect to the Union and stated, in substance, that if the Union came into the plant certain of the privileges previously enjoyed would be taken away, and that he would have to let Raymond Schaper go This was calculated to undermine the Union's majority status and substantiates the conclusion, which I draw, that Respondent at no time in good faith questioned either the appropriateness of the unit or the Union's majority therein, but on the contrary determined not to bargain with the Union By conducting the poll, and by the previously related statements to its employees , Respondent interfered with, restrained, and coerced them in the exercise of their rights guaranteed in Section 7 of the Act B. The discriminatory discharges 1 William Schaper Schaper first came to work for Respondent in June 1950 He was laid off in November or December of that year due to a shortage of work. He was again employed in June 1951, and worked until his discharge on June 13, 1952, as a farm machinery setup man in the assembly department Polson, the other assembler in the department, though a member of the Union, was a less skilled employee than Schaper and received a smaller wage About 9 weeks before his discharge Schaper was given an individual wage increase of 10 cents an hour. As has been found, he joined the Union on May 27, 1952, and was engaged in conversation concerning the Union by Fuchs on June 10, just prior to Respondent's poll of the employees in the appropriate unit Preceding the taking of the poll, as has been found, Fuchs told Schaper and others that there would be no more overtime if the Union came in and that he could not continue to employ Raymond Schaper, William Schaper' s son . On the occasion of this con- versation Schaper replied, with respect to Respondent' s statement that it could not continue to employ his son, that perhaps something could be worked out in that connection with the 4See for example, Apex Toledo Corporation, 101 NLRB 807, 31 LRRM 1129. E. R. GODDARD & COMPANY, INC. 865 Union, to which Fuchs expressed doubt. Schaper also stated that so far as overtime was concerned it made no difference with him and that he would rather work 5 days straight time. On June 13, Weber, Schaper's foreman, came to him and told him that he was discharged. Schaper shortly afterwards went to Weber's office and asked him the reason, using oppro- brious language with respect to Weber, who told him only that he was "uncooperative." On the following Monday Schaper and the four other union members went on strike and picketed the plant. $ Respondent's defense to Schaper's charge is that Schaper, over a period of 6 or 7 weeks prior to his discharge, had shown a lack of interest in his job, and particularly that he had taken too much time in assembling a combine which he had begun on June 4. The first reason is as nebulous as is the charge of lack of cooperation of which Schaper was informed on the day of his discharge, and there is no objective evidence to support it. As to the second, Weber testified that Schaper spent 41 hours assembling the combine in question when the usual time required was only 21 hours. In the absence of any records with respect to the time usually taken in the assembly of a combine of this character, and because of the fact that Respondent did not advance this as a reason at the time of the discharge, I believe that this was not the decisive factor in Schaper's discharge, but a mere afterthought. Fuchs, who according to his testimony was in charge of hiring and firing, stated that he made the decision to discharge Schaper on Thursday afternoon, June 12. The General Counsel introduced in evidence a copy of a St. Charles (Missouri) newspaper containing a want ad for an experienced setup man at Respondent's plant. It was stipulated at the hearing that the ad was placed on Wednesday, June 11. In my opinion it was intended as a means of finding a replacement for Schaper. Weber testified that he himself made the final decision to discharge Schaper on that day. Weber at another place in his testimony testified that he made up his mind during the latter part of May to discharge Schaper, but determined to give him another chance. This was shortly after he had made a service call on a tractor which Schaper had assembled and following which, on May 19, Weber asked Schaper "if he wouldn't do a little better." Weber then testified that he "decided to fire him the last time" on June 9, and talked it over with Fuchs on June 12, when Fuchs told him to use his own judgment. If Weber's testimony in this latter respect is correct then it is apparent that he finally decided to discharge Schaper 2 days before June 11 when Schaper finished his 41 hours of work on the combine he was assembling, an unreasonable time, which according to Respondent, was the immediate cause of Schaper's discharge. However, if the decision was finally made to discharge Schaper on June 9 it follows that •at that time Schaper had worked approximately 16 hours less than the 41 hours which Respondent attributed to him. I do not find any of the reasons advanced by Respondent for Schaper's discharge to be persuasive. Where they are not vague they are contradictory. If Schaper had been discharged for the reasons advanced I believe that he would have been told so at the time of his dis- charge, instead of being told merely that he was "uncooperative." Schaper had been given a 10-cent an hour increase in pay about 9 weeks before his discharge. The specific com- plaints as to his work were only two in number and impress me as relatively trivial. It is noteworthy that if Weber decided on June 9 finally to discharge Schaper, this was the very day upon which representatives of the Union met with Respondent to request recognition. If the final decision was made on June 11, as Weber otherwise testified, and which was the day upon which an advertisement was inserted for his successor, this was the day following Respondent's poll of the employees in the plant as well as the day following Fuchs' conver- sation with Schaper himself as to his union membership and his statement that if the Union came in his son, Raymond, could no longer be employed. A still more conclusive consideration in my mind, however, has to do with the hire and dis- charge of Raymond Schaper on June 10, 3 days before his father was separated. Raymond Schaper Raymond Schaper was 17 years old at the time of the hearing. He first came to work in the assembly department at the close of school in the spring of 1950, helping his father assemble machinery. This was at his father's request, motivated by his desire to keep the boy occupied. After he had worked a short while, Respondent began the practice of paying Raymond $2 a week as spending money. When school took up again in the fall, Raymond 5 There is nothing in the record to indicate the duration of the strike or its ultimate outcome. It is not alleged in the complaint to be an unfair labor practice strike 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resumed his studies. At the end of school in June 1951, he again showed up at the plant. This time Respondent put him on the payroll at $6 a week. In the spring of 1952, on June 9, he again reported at the plant and was put on the payroll, now at $20 a week. He had obtained a weight of 115 pounds and was able to lift heavier weights. He was beginning to learn the trade. On June 10, the second day of his employment, he was present when Fuchs said that if the Union came in there would be no more overtime and he would not be able to use him. Raymond was not old enough to join the Union, and was not asked to vote in the poll, although along with the others he did watch Fuchs count the ballots. As soon as the count had been completed and it had been found that a majority of those in the unit were favorable to the Union, Weber called Raymond to the office and told him that there was not much work for him to do and that he was laid off. It is not contended that he was ever told that his work was unsatisfactory. Fuchs, on cross-examination, testified: "I don't recall exactly," when asked why Raymond Schaper was let go. Weber testified that when Raymond was hired the previous day he told Fuchs that he "thought that we should have a man a little older and a little stronger and somebody that wouldn't get hurt if he was going to be employed." He stated, however, that Fuchs alone made the decision to hire Raymond, and that he, Weber, alone made the decision to discharge him the following day. In spite of the fact that Fuchs had hired Raymond only the day before, Weber admitted that he did not give Raymond any reason for laying him off. His sole expla- nation of this failure was that Raymond did not ask him why, but merely said "Yes, sir," and left. The testimony of Fuchs is that he hired Raymond Schaper on June 9, again at the request of his father, and that the decision to pay him $20 a week was reached after negotiations with his father as to the proper wage. This being agreed upon, Fuchs told William Schaper to bring his son to the plant. He testified that it was his intention to employ Raymond for the entire summer if he was satisfactory. Conclusions I conclude that although there may have been some doubt in Weber's mind as to the advis- ability of employing Raymond Schaper, he did not actively oppose it. There is nothing in the record to indicate that during the 2 days the boy was employed he had proved unsatisfactory or unequal to doing whatever physical labor was necessary, and no instance of such is advanced. Obviously, he was better qualified than he was the previous two summers and Respondent recognized this when it agreed to pay him $20 a week instead of the $6 it had paid him the previous summer. It is apparent to me, and I find, that Raymond Schaper was as satisfactory an employee on June 10, when he was discharged, as he was on June 9 when he was hired, and was as satisfactory in the summer of 1952 as he had been the previous two summers. To my mind, Raymond Schaper's abrupt dismissal, without any reason ad- vanced him at the time, had nothing to do with his ability to handle the work or any other factor relating to his employment. He was discharged within an hour or so after Fuchs' poll of the employees showed that they favored the Union, and on the afternoon of the same day in which he told the Schapers that if the Union came in Raymond Schaper would have to leave. I am persuaded that the real reason was, as Fuchs foretold, that Raymond Schaper was discharged because the Union had come into the plant. Raymond Schaper's discharge throws further light on that of his father. It does not seem to me plausible that Respondent had decided upon the discharge of William Schaper prior to June 10, or that it had even seriously considered it. It is difficult to suppose that the younger Schaper would have been hired principally as an accommodation to his father and as an assistant to him, after discussion as to his proper wage, with the admitted expectation that he would work all summer, if at the time Respondent was considering getting rid of the senior Schaper. The circumstances point to no other reasonable conclusion than that Respondent did not decide to dispense with William Schaper until after it ascertauied on June 10 that he was interested in the Union and after Respondent had conducted a poll which showed that in fact the Union was coming into the plant. Then, Raymond Schaper was imme- diately discharged, as was his father, 3 days later. I find that Raymond Schaper's discharge was a byproduct of his father's activity in the Union and the Union's advent in the plant. It has been held on numerous cases that in situa- tions such as this, where the discharge of one employee is due to the union activity of others, it does not cease to be discriminatory because the employee in question was not personally active in the Union. E. R. GODDARD & COMPANY, INC. 867 I find that Respondent, by discriminating with respect to the hire and tenure of employment of William Schaper and Raymond Schaper by discharging them, interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found Respondent discharged William Schaper on June 13 and Raymond Schaper on June 10, 1952, because of the former's union membership and activity and because of the union membership and activity of the other employees in Respondent's plant. I will therefore recommend that Respondent offer William Schaper immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay equal to the amount he would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings,6 to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company. 7 With respect to Raymond Schaper I shall recommend that if he should apply to Respondent for employment at the close of school in 1953, or at any other time, it shall not refuse him employment because of his own or his father's union membership or activity, or that of other employees in the plant. I shall further recommend that Respondent make Raymond Schaper whole for any loss of pay suffered by him as a result of the discrimination, by payment to him of a sum of money equal to the amount he would have earned as wages from June 10, 1952, to September 1, 1952, less his net earnings computed as described above. Having found that the Union represented a majority of Respondent 's employees in an appropriate unit and that Respondent refused to bargain collectively with it, I shall recom- mend that Respondent , upon request , bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit. The scope of Respondent's illegal conduct discloses in my opinion a purpose to defeat self-organization among its employees. Such conduct, which is specifically violative of Section 8 (a) (1) and (3) of the Act, reflects a determination generally to interfere with, restrain, and coerce its employees in the exercise of the right to self-organization. Because of Respondent's unlawful conduct and since there appears to be an underlying attitude of opposition on the part of Respondent to the purposes of the Act, to protect the rights of employees generally I am convinced that if Respondent is not restrained from engaging in such conduct the danger of their commission in the future is to be anticipated from its conduct in the past. In order, therefore, to make effective the interdependent guarantee of Section 7 of the Act and to prevent a recurrence of unfair labor practices, and thereby minimize indus- trial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, I will recommend that Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing and from the entire record in the case. I make the following: CONCLUSIONS OF LAW 1. Respondent, E. R. Goddard & Company, Inc., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Automotive, Petroleum, and Allied Industries Employees Union, Local 618, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discharging William Schaper on June 13, and Raymond Schaper on June 10, 1952, Respondent violated and is violating Section 8 (a) (3) of the Act. 6Crossett Lumber Company, 8 NLRB 440. 7 90 NLRB 289 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. All garage laborers, utility men, lubrication and battery service men, and all other employees in the garage, shop and parts department of Respondent, excluding mechanics and/or machinists, office and clerical employees , executive and professional employees, guards , and supervising employees as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section (b) of the Act. 5. Automotive, Petroleum, and Allied Industries Employees Union, Local 618, at all times on and after May 28, 1952, has been the exclusive bargaining representative within the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for the pur- poses of collective bargaining. 6. By refusing to bargain collectively with Automotive, Petroleum, and Allied Industries Employees Union, Local 618, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (a) (5) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL; LOCAL UNION NO. 250, UNITED AS- SOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA; and INTERNATIONAL BROTHER- HOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, AFL, LOCAL UNION NO. 92 and OIL WORKERS INTERNATIONAL UNION, CIO. Case No. 21-CC-146. June 30, 1953 DECISION AND ORDER On February 18, 1953, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceed- ing, finding that the Respondent Council had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that Respondents Local250 and Local 92 had not engaged in certain other alleged unfair labor practices and recommended that the complaint against Local 250 and Local 92 be dismissed with respect to such allegations. Thereafter, the Respondent Council and the General Counsel filed exceptions and supporting briefs. The Respondents Local 250 and Local 92 filed reply briefs. 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 Inter- mediate Report, the exceptions and briefs, and the entire record I Prior to the issuance of the Intermediate Report, the General Counsel moved to reopen the hearing so as to introduce into the record the minutes of the Council's meetings, which he had inadvertently failed to do at the time of the initial hearings (December 16, 17, and 18, 1952). The Council excepts to the Trial Examiner's order by which the hearing was reopened on January 21, 1953. Although the minutes were available to the General Counsel at the time of the initial hearings, we nevertheless believe that the Trial Examiner acted within his dis- 105 NLRB No. 135.