Geo. Byers Sons, Inc.

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD able to the Board, upon request, payroll and other records, in order to facilitate the checking of the amount of back pay due.13 Because of Respondent's unlawful conduct and its underlying purpose and tend- ency, I find that the unfair labor practices found are persuasively related to other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past. The preventative purpose of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantee of Section 7, to prevent a recurrence of unfair labor practices, and thereby to mini- mize industrial 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 findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Union Industrial Amalgamada Num. 1 is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees at Respondent's Rio Piedras, Puerto Rico, plant, including the regular chauffeurs, but excluding office clerical employees, casual truckdrivers, executive, administrative, and professional employees, guards, watchmen, the 4 supervisors and 2 assistants to the manager, and all other super- visors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since February 16, 1953, the Union above mentioned has been, and now is, the exclusive representative of all the employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 4. 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 engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By discriminating in regard to the hire and tenure of employment of its em- ployees, thereby discouraging membership in the Union aforementioned, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 6. By failing and refusing on and after March 24, 1953, to bargain collectively with the Union aforementioned as the exclusive representative of the employees in the aforesaid unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 7. The aforementioned 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.] 13 F W. Woolworth Oompany, 90 NLRB 289. GEO. BYERS SONS, INC. and INTERNATIONAL UNION, UNITED AUTOMO- BILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO). Case No. 9-CA-759. January 25, 1955 Decision and Order On May 20, 1954, Trial Examiner Thomas S. Wilson 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 111 NLRB No. 48. GEO. BYERS SONS, INC. 305 take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices and recommended dismissal of that portion of the complaint. Thereafter, the Respondent filed exceptions to the Intermediate Re- port and a supporting brief. The General Counsel and the Union filed no exceptions. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report,' the exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following modifications. 1. We find, in agreement with the Trial Examiner, that the Re- spondent is engaged in commerce within the meaning of the Act. Unlike the Trial Examiner, however, we do not rely on the fact that the Respondent is a franchised automobile dealer. Our assertion of jurisdiction is based upon the stipulated fact that the Respondent's Cincinnati, Ohio, plant sold and shipped to points outside the State materials and goods in excess of $100,000, during 1953.2 2. The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (1) of the Act, by engaging in acts of interro- gation, promise of benefit, and threats of economic reprisal concern- ing the union activities of its employees.' We find that, in the context 1 The Respondent has excepted to the credibility findings of the Trial Examiner. The Board, however, attaches great weight to the findings of a Trial Examiner insofar as they are based on demeanor , and accordingly does not overrule a Trial Examiner 's resolution of credibility except where the clear preponderance of all the relevant evidence convinces the Board that his resolution was incorrect American Snuff Company, 109 NLRB 885 No such conclusion is warranted in this case, although we do not agree with the Trial Ex- aminer's characterization of Service Manager Buchert' s testimony as "bewildering" with regard to a conversation with an employee We do agree, however, with the Trial Ex- aminer 's finding that Buchert's testimony was sufficiently inconsistent to be discredited. 2 Wilson-Oldsmobile, 110 NLRB 534, Hogue and Knott Supermarkets, 110 NLRB 543 3 The Intermediate Report contains certain misstatements or inadvertences , none of which affects the Trial Examiner's ultimate conclusions Accordingly , we note the fol- lowing corrections The January 4, 1954, conversation between employee Andeison and Service Manager Buchert took place during the morning , rather than in the afternoon, according to Anderson's testimony Only one of Respondent 's officials, Buchert, engaged in unlawful acts of interrogation . The record is not silent as to whether or not Gutzwiller ever received from the Respondent his union initiation fees, which Buchert had promised to rennbuise if he helped keep the Union out of the plant. The evidence shows that Gutz- willer was not reimbursed Relying on Gutzwiller's testimony , we find that he paid his initiation dues on the morning of January 5 rather than on January 6 We do not rely on the Trial Examiner's findings that the following conduct was coer- cive : Buchert's statement to O'Dell that "if we got a union we probably wouldn't have any overtime" ; and Byers ' statement of January 18 referring to the probabilities of nego- tiating a bonus arrangement with a union . In agreement with the Trial Examiner, how- ever, we find that Buchert's statement to employees in the paint shop that the Respondent would probably eliminate the bonus if the employees "did go Union." was coercive, as this remark was coupled with the additional statement that the Respondent's president "would close up the place before he would let a union come in and run his business " 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Respondent's unfair labor practices, including the discrimina- tory discharge of Butler, the acts of interrogation were coercive.' 3. The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (3) and (1) of the Act by discriminatorily dis- charging Herman Butler; 5 and that the respondent did not violate the Act by discharging Frank Kerr. Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Geo. Byers Sons, Inc., Cin- cinnati, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aircraft & Agricultural Implement Workers of Amer- ica (UAW-CIO), or any other labor organization, by discriminating in any manner against any of its employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating or questioning employees concerning their union activities, connections, or sympathies in a manner constituting inter- ference, restraint, or coercion in violation of Section 8 (a) (1) of the Act; and threatening to eliminate bonuses and cease operations if the Union became the employees' representative. (c) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft & Agricultural Implement Workers of America (UAW-CIO), or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or mutual aid or protection, or to refrain from all such activ- 4 See Seats, fboebuc1 it Co , 109 NLRB 632. We do not agree with the Trial Examiner's finding that the Respondent also violated the Act by thieatenng to discharge employee John Clatty On January 7, 1954, the day following the discharge of two employees, as Clatty was leaving the shop for lunch. Seivice Manager Buchert called out, "watch it now, John, I don't want to can you " The Trial Examiner conceded that this remark was made "laughingly." but commented, in support of his finding, that many a threat has been uttered "laughingly " Clatty, who is still employed with the Respondent, testified that Bucliert "more of less said it as a joke I am sure he didn't mean it " Under these cir- cumstances, we do not find the foregoing remark to be coercive 5 Although we agiee with the Ti ial Examiner that the Respondent's analyses of repair ordeis, used by the Respondent in support of its defense to Butler's discharge, disclosed considerable omissions and errors, the record does not show, as stated by the Trial Ex- aminer, that one error amounted to as much as $40 on a single repair order The record does show, however, that a like amount, $39 51, was admittedly charged against Butler as a "net loss" by not giving hint credit for woik performed on cars for which there was no charge to the customer The record further shows that the Respondent admittedly failed to credit Butler for $71.35 woith of repairs which was chaiged to customers The fact that the Respondent's plant was small was not considered in our deteimina- tion that the Respondent had knowledge of Butler's union activities GEO. BYERS SONS, INC. 307 hies, except to the extent that such right may be affected by an agree- ment 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 necessary to effectuate the policies of the Act : (a) Offer to Herman Butler immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole, in the manner set forth in the section of the Intermediate Report en- titled "The Remedy," for any loss of pay he may have suffered by reason of the Respondent's discrimination against him. (b) Upon request make available to the Board and its agents, for examination and copying, all payroll and other records necessary to a determination for the amount of back pay due under the terms of this Order. (c) Post in conspicuous places at Respondent's plant in Cincin- nati, Ohio, including all places where notices to employees are cus- tomarily posted, copies of the notice attached hereto and marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent's representative, be posted by it, as aforesaid, immedi- ately upon receipt thereof, and maintained for at least sixty (60) con- secutive days thereafter. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for the Ninth Region, in writing, within ten (10) days from the date of this Order what steps the Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed as to Frank Kerr. MEMBER MURDociK took no part in the consideration of the above Decision and Order. 6In 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 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 International Union, United Automobile, Aircraft & Agricultural Implement Workers 344056-55-vol. 111-21 - 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of America (UAW-CIO), or any other labor organization, by discriminating in any manner against our employees in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT interrogate or question our employees concerning their union activities, connections, or sympathies in a manner con- stituting interference, restraint, or -coercion in violation of Sec- tion 8 (a) (3) of the Act; and threaten to eliminate bonuses and cease operations if the Union becomes the employees' representa- tive. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organi- zation, to form labor organizations, to join or assist the above- named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other 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 rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL offer to Herman Butler immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of our discrimination against him. All our employees are free to become or remain members of the above-named Union or any other labor organization. We will not dis- criminate in regard to the hire or tenure of employment or any term or condition of employment because of membership in or activities on behalf of any such labor organization. GEO. BYERS SONS, 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 Upon a charge duly filed on January 7, 1954, by International Union, United Auto- mobile, Aircraft & Agricultural Implement Workers of America (UAW-CIO), herein called the Union, the General Counsel of the National Labor Relations Board, GEO. BYERS SONS, INC. 309 herein called the General Counsel I and the Board, respectively; by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued its complaint dated Feb- ruary 26, 1954, against Geo. Byers Sons, Inc., herein called the Respondent, alleging in substance that the Respondent: (1) By various enumerated acts and statements had interfered with, restrained, and coerced its employees; and (2) had discharged Herman Butler and Frank Kerr because of their membership in and activities on behalf of the Union thereby 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, 61 Stat. 136, herein called the Act. Copies of the complaint, the charge, and the notice of hearing were duly served upon Respondent and the Union. The Respondent duly filed its answer wherein it admitted certain allegations of the complaint but denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held on March 24, 25, 26, and 27, 1954, at Cincinnati, Ohio, before the duly designated Trial Examiner. The General Counsel, the Union, and the Respondent were represented at the hearing by counsel or rep- resentatives. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. On May 3, 1954, the General Counsel and the Respondent filed briefs. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Geo. Byers Sons, Inc., is an Ohio corporation with its principal office and place of business in Columbus, Ohio, and with places of business in Cincinnati, Ohio, and in Louisville, Kentucky, at each of which it sells and services new and used automo- biles and sells automobile parts. Only the Cincinnati establishment is involved in this proceeding. It was stipulated by the parties, and is here found, that the Cincinnati plant of the Respondent sells out of the State of Ohio materials and goods in excess of $100,000 in the past calendar year and that the Columbus, Cincinnati, and Louis- ville locations each import from out of the State of Ohio in excess of $500,000 worth of goods and materials. At all times material herein the Respondent has owned and operated the three establishments referred to above and the operation thereof, including labor rela- tions, is integrated, determined, and directed by Respondent's principal office at Columbus, Ohio. The Respondent is a franchised automobile dealer for the Chrysler Corporation, Detroit, Michigan, and as such is an integrated part of Chrysler Corporation's nationwide automobile manufacture and sales operations. The Respondent admits and the Trial Examiner finds that the Respondent is en- gaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile , Aircraft & Agricultural Implement Workers of America (UAW-CIO) is a labor organization admitting to member- ship employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The facts For a period of some 6 years the Respondent had annually paid its employees a Christmas bonus amounting to 15 percent of their yearly earnings up to the sum of $3,000. The payment of these bonuses and the expectation of their continuance was referred to by Service Manager Louis Buchert when employing new mechanics, etc., in his department. However it is quite clear that, while the expectation was stressed, Respondent made no guarantee of the continued payment of such bonuses. Beginning early in December 1953, the Respondent's top management officials at Columbus, Cincinnati, and Louisville began conferring in regard to the bonus to be 1 This term specifically includes the counsel appearing for General Counsel at the hearing. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paid for the year 1953 because of the serious downturn in Respondent 's business since the previous August . On or about December 10, it was decided that the Re- spondent would pay a 5 percent bonus to those employed 12 months or less, 10 per- cent to those employed 24 months or less, and the regular 15 percent to those em- ployed over 24 months. At Cincinnati, General Manager William C . Byers so in- formed his department heads with instructions for them to pass the word to their employees. Acting upon these instructions , Buchert called a meeting in his department and explained the method by which the 1953 Christmas bonus was to be paid and the reasons therefor. This announcement caused considerable disappointment, if not resentment, among the employees. Mechanic Herman Butler, who had been em- ployed by Respondent on May 28, 1953 , complained at the meeting that he "didn't think much of the setup." Following this announcement employees of the service department expressed among themselves their disappointment or resentment at the change in the Christ- mas bonus. Of these employees Butler was probably the most vocal . In fact, Butler told Buchert sometime thereafter that he "didn't think that was fair to do a man that way," and that he felt like quitting. Buchert instructed Butler "to hang on, we would get the thing straightened out." A few days thereafter Butler and Buchert had a similar discussion at which Buchert told Butler that he thought the mechanics were entitled to a raise and ended the conversation by telling Butler : "I want you to stay." On December 18, 1953 , the bonus, as above described , was paid. From that time on there were further discussions among the individual service department employees about their dissatisfaction over the bonus . Butler was active in these discussions . Sometime just prior to the first of the year the suggestion was put forward of getting a union in the shop. At lunchtime on January 4, 1954, Butler offered to get in touch with a union organizer friend of his to a small group of mechanics including O'Dell, Frank Kerr, Clatty, Fancher, and Anderson and to get some union cards if they desired to join the Union . Butler urged this course of action. At noon Butler telephoned Organizer Busch who brought union author- ization cards to Butler that afternoon in the shop . Upon the receipt of these cards Butler informed the employees individually at their places of work that he had union cards and would meet with them after work on Deerfield Place, a short street a block or so from the Respondent's plant where the employees customarily parked their cars. This meeting was soon common knowledge in the shop. After work that afternoon the men gathered around a parked automobile on Deerfield Place where Butler had a piece of paper divided down the middle with one side headed "Yes" and the other headed "No" referring to whether the individual signer was for ["yes" ] or against ["no"] joining the Union. Fourteen employees signed the "yes" side while one signed the "no " side. To those employees who wanted to join the Union, Butler gave union cards and informed them that the initiation fee was $7 .50. Some employees paid the initiation fee and signed the cards immediately returning them to Butler . Most of the employees took the cards home overnight returning them executed to Butler the following morning. Among others who signed a card and expressed himself as being for the Union was Mechanic Frank Kerr. On the afternoon of January 4, employee Anderson called Buchert to his stall and asked him for a wage increase . Buchert told Anderson that Byers was considering such an increase and then said, "Something damn funny is going on around here" to which Anderson answered, "What do you mean, the Union?" Buchert thereupon inquired: "Do you know who is in back of it?" After Anderson denied such knowl- edge, Buchert replied: "I think I know the one in back of it." Anderson stated that he was thinking about signing a union card whereupon Buchert advised that Ander- son "would be crazy if [he] signed one." 2 2 Buchert's testimony regarding this conversation is bewildering . Originally he testi- fied that during the conversation Anderson informed him that all the mechanics were joining the Union but that he, Buchert, paid no heed to the remark considering it merely an attempt to "get a raise out of me." Later be implied that nothing was said about the Union. Yet he testified further that, 5 hours after Butler's discharge , he told Byers of this conversation with Anderson while suggesting the possibility of union trouble over Butler's discharge However Buchert did confirm the fact that this conversation with Anderson occurred on Monday, January 4 , when be told Byers on January 6 that the con- versation occurred "a couple of days" before. Buchert gave all the appearances of being a very unhappy witness while denying this and a number of his antiunion conversations GEO. BYERS SONS, INC. 311 About 5 p. m. that same day Buchert was talking to some employees in the paint shop and told them that Respondent's was a good shop without a union , that the Respondent would probably eliminate the bonus if the employees "did go Union" and, further, that he had heard George Byers , president of Respondent, during a management meeting state that "he would close up the place before . . . he would let a union come in and run his business." At lunchtime the day after he had signed the union card which he had done on the very evening of January 4 when Butler handed it to him, employee Wilpers was asked by Buchert what he thought of the Union . Wilpers answered that he had filled out a union card. Prior to the time of the discharge of Butler on January 6 , Buchert and Mechanic Gutzwiller went out on two road tests together. On these trips Buchert asked Gutz- willer "what was going on up there" and stated that he (Buchert) had heard a union was trying to start. Buchert argued that the Union was not going to benefit anybody, that the "older men" of whom Gutzwiller was one were going to suffer, and suggested that "if we could keep the Union out, why, [Buchert] would give me my money back, whatever I lost for initiation fees." Buchert inquired as to who the "instigator" of the Union was, then stated that he thought that the instigator was Butler and that he "would probably fire Butler, but he would wait to see what Mr. Byers wanted to do." 3 Buchert reiterated his statement that Byers would prob- ably "close the place up if a union got in." During another road test, this time with Mechanic John Clatty, Buchert very significantly, after bringing up the subject of the Union and arguing that Respondent's employees did not need a union, remarked to Clatty : "I know all the men who have signed those cards." Early on the morning of January 6 , Gutzwiller returned his executed union card with $7.50 initiation fee to Butler at Butler's stall in the service department of the Respondent . At the time of this transaction Buchert was walking down the ramp on the outside of the building from Butler 's stall and separated therefrom by a window. Although the transaction was seen by other employees in the service de- partment, Buchert denied having seen it, a denial which the Trial Examiner accepts. At noon, as Butler was punching out to go to lunch leaving a repair job still unfin- ished, Buchert called Butler to his office where he said : "Well, Herman, I am going to have to let you go . . . well, you are just too slow to be productive for our kind of work." When asked if the discharge had anything to do with the Union, Buchert answered : "No, nothing about the Union. . . You are just too slow." Buchert handed Butler his paychecks . Butler asked if he could see the company books on the question of his nonproductiveness and Buchert agreed to attempt to secure per- mission for that. But when Respondent's auditor returned from lunch, he refused to allow Butler to examine the books on the grounds that they were "confidential." Thereafter Butler left the plant. Sometime on the morning of January 6 employee Frank Kerr had a conversation in the shop with the junk man to whom the Respondent sold its scrap material. As a witness, Kerr described this conversation as follows: "Oh , I didn't say anything so bad [about Buchert ], I don't think.. .. Well, I probably said some things [about Buchert] that I shouldn't have said." The junk man reported to Buchert that Kerr intimated that Buchert was putting some of the junk money into his own pocket but that the men were going to "get" Buchert. Upon receiving this information after the meeting with Byers at which the with various other employees . Hence, his denials were far from convincing and cannot be credited, both because of his demeanor and because of the inconsistencies in his own testimony. 3 As William Byers was out of town all day on January 5, this statement fixes the data of this conversation as January 5. Buchert admitted that he offered to repay Gutzwiller the sum of $7.50 which had been paid as initiation fee but contended that the conversation occurred many weeks there- after when Gutzwiller was complaining about the enormous doctors' bills be was being required to pay because of the long illness of his daughter . Again the Trial Examiner is unable to credit Buchert's explanation of this conversation. It is true that the General Counsel had to refresh Gutzwiller 's recollection from an affidavit he had given to a Board field examiner on January 11, 1954, before Gutzwiller definitely recalled Buchert's statement regarding Butler. Gutzwiller, who was still em- ployed by the Respondent, was definitely a reluctant witness although, in the estimation of the Trial Examiner, an honest one . The Trial Examiner, therefore, credits Gutzwiller's testimony as found above. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Butler discharge had been decided upon, Buchert reported this matter to Byers and it was then decided to discharge Kerr. At approximately 4:45 that evening Buchert informed Kerr that he was being dis- charged that evening on the ground that his work was not good enough. He was given his paychecks and left the plant. On January 7, the day following the discharges, Butler and Kerr ate lunch with some of the other mechanics including O'Dell, Anderson, and Clatty at the Eden Grill, which was the regular daily resort of a number of the employees. Sometime during the afternoon O'Dell finished up a job and reported to Buchert in his office. Buchert and O'Dell began discussing the advantages and disadvantages of a union. Buchert told O'Dell that "if we got a union we probably wouldn't have any over- time," the employees would be put on a 40-hour week instead of the 461/2 hours they were then working, and would "likely" lose the friendship of the shop. Buchert in- formed O'Dell that he knew that Butler and Kerr were over at the Grill for lunch and were instrumental in getting the Union in, that he (Buchert) had "removed two troublemakers" from the shop, and that he knew that O'Dell had signed a union card and paid the initiation fee. As Clatty left the shop at lunchtime for the Eden Grill, Buchert called out "laugh- ingly": 4 "Watch it now, John, I don't want to can you." As Anderson returned from lunch at the Grill, Buchert inquired: "Have you been over getting briefed by Herman [Butler]?" When Anderson admitted it, Buchert rejoined: "I hope you use your right judgment." In a subsequent conver- sation, Buchert informed Anderson who had signed a card: "I know everyone who signed a card." On January 8, the Respondent received from the Board copies of the charges filed in the instant case and of a petition for certification filed by the Union the previous day. Also on January 7, the Union wrote the Respondent directly requesting recog- nition as the bargaining agent for the employees. Respondent contends that this was the first information it had regarding the existence of any union activities in its Cincinnati plant. Subsequently the Union requested, and was granted, permission to withdraw its petition. On the evening of January 18, 1953, after the withdrawal of the petition, Wil- liam Byers caused all the employees of the service department to be assembled and made a speech to them. In this speech the Respondent reviewed the above actions ,of the Union stressing the fact that "on January 6, 2 days before we received word .that the Union had an interest in trying to organize you people, the employment of Herman Butler and Frank Kerr was terminated." After reviewing the situation as of that time, Byers continued by arguing that in a "small, intimate group" such as the Respondents' there was no need for a union citing various benefits he claimed the Respondent's employees enjoyed such as being able to report late for duty, not being laid off during dull days, being permitted to take time off to see the doctor, etc., without having their pay docked. Byers then stated: "I'm not sure but I have been told, and I know it is the way we operated under a union contract in New York" that such privileges would probably have to be revoked under a union contract. According to Byers, "after all individual favors or considerations are, to a great ex- tent, done away with [under a union contract] because individual favoritism, as it might be called, must not be shown, and if it is done for one it must be done for all." Byers then referred to the large number of small loans which the Respondent was able to make for its employees because "we are a pretty close knit group and our problems are pretty much the concern of each other and we're glad to help in any way we can to ease each other over difficult times and troubles." He then added: "Again, I'm not sure, but under an outside Qrganization contract I don't know whether or not this practice could be continued. It might be construed as individual favoritism." In referring to the Christmas bonus Byers had the following to say: Also talking about money brings up the thought of our yearly bonuses. Of course we do not definitely say that any type of bonus will be paid but the fact still remains that the Byers organization have paid a bonus-and a fairly size- able one-for the past 6 or 7 years. And, in spite of a slight change this past year in the overall system of figuring the bonus with the length of service method used, there were many of you in this room who received a bonus of $475 at Christmas time. I think that this bonus which is equal to about 19 cents an hour throughout the year should be considered when you think about your hourly income rate in comparison with other dealerships and compared to any income that might be negotiated with an outside organization that you might * On cross-examination Clatty, who was still employed by Respondent, testified that the remark was made "laughingly." Many a threat has been uttered "laughingly." GEO. BYERS SONS, INC. 313 possibly elect to represent you. I do not believe in the final analysis that this type of bonus could be negotiated into any contract. Byers concluded his speech by acknowledging that he thought there was a need for union organization in a large concern of 5, 10, or 15,000 employees but not in a "small, intimate group such as ours" and by assuring the employees that, if they felt differently about the need for organization, "no one-either inside or outside the Company-has the right to threaten or coerce you for or against." B. Conclusions 1. Interference, restraint, and coercion Having resolved the credibility questions against Buchert for reasons stated hereto- fore, the sole question remaining is whether or not the statements found to have been made by Buchert and Byers above constitute interference, restraint, and coercion. Interrogation by employers of the employees as to their union membership or sym- pathies especially during the early organizational stages is almost universally held without more to be in violation of Section 8 (a) (1). In this case its coercive nature was heightened by further inquiries by responsible respondent officials as to who the "instigator" of the organizational move was, and by the insistence of Buchert, whether or not he was telling his listeners the truth, that he "knew" the instigator and all the employees who had signed union cards. The implication as to the dangers to such employees' tenure of employment from Buchert's remarks and inquiries in this case is so clear as not to require discussion. However, when coupled with Buchert's threat to discharge Butler as the "instigator" of the movement, the above inquiries and statements become pure threats of reprisal against any employee engaging in concerted or union activities and thus a clear violation of Section 8 (a) (1) of the Act. That these threats succeeded in their purpose of coercing the employees is obvious both from Anderson's testimony at the hearing that he wished he had "never heard" of the Union and by the patent reluctance of the employees still employed by the Respondent to testify fully and freely. Buchert's offer to reimburse Gutzwiller the amount Gutzwiller had paid for initi- ation fees if he helped keep the Union out of the plant amounts to no less than a "promise of benefit" to the employee to assist Respondent to prevent the organiza- tional activities of the employees thus clearly violating Section 8 (a) (1) of the Act. The fact that Gutzwiller may never have received the promised $7.50, as implied in the Respondent's brief,5 would merely amount to a compounding of the original offense. The threat by Buchert to discharge Clatty is made no less offensive by the fact that it was "laughingly" made or that Clatty was not coerced by it for it is now clear that to be violative of the Act the coercion need not be successful. The statements made by the Respondent's officials to the effect that, if the Union came in, the plant would close down, that hours would probably be reduced to 40 instead of 463/ and that the small loans and Christmas bonuses might be discon- tinued because of that fact were clearly intended as threats of reprisal for any union activity by the employees and as such are violations of Section 8 (a) (1) of the Act .6 2. Herman Butler The facts prove beyond peradventure of a doubt that Herman Butler was both the instigator of the concerted activity and the organizer of the union organizational attempt caused by the employees' dissatisfaction over the change in the Christmas bonuses paid in 1953. Nor can there be any question but that he was discharged within 2 days after he had secured, distributed to, and received from the interested employees their initiation fees and executed union cards. On the surface at least, the facts above found indicate quite clearly that Butler was discharged in retaliation for his activity on behalf of the Union. But the Respondent argues vigorously that the discharge of Butler could not have been discriminatory because (1), the sole reason for Butler's discharge was economic, i. C., Butler was the least productive mechanic in the service department; and (2) the Respondent had no knowledge of any union or concerted activities by Butler until S The evidence is silent on the question of such payment. ON. L. R. B v. Late Chevrolet Co., Inc., 211 F. 2d 653 (C. A. 8) ; N. L. R. B. v. aeigy Company, Inc., 211 F. 2d 553 (C. A. 9). 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some 3 to 5 hours after Butler had been discharged. A little analysis of the testi- mony introduced in the instant case forces the Trial Examiner to the conclusion that neither of these contentions is sound. Regarding the alleged economic basis for the discharge of Butler, Buchert and William Byers both testified that Byers held meetings with his supervisory personnel on December 24 and December 30, at which Byers reviewed the worsening economic situation of the Respondent and urged his department managers to figure out ways and means to eliminate the "fat" from Respondent's operations. In the course of each of these meetings Byers reviewed the personnel of the departments, during which the name of Butler was mentioned in passing among a number of others. The evi- dence indicates that, until January 4, these comments had been largely compli- mentary to Butler. According to this evidence, on January 4, Byers insisted that Buchert submit recommendations for reducing costs in his department and instructed him to prepare from the Respondent's work orders a comparison of the productive- ness of the various mechanics in the service department. According to the testimony of Buchert, he made such a study on the evening of January 4 from the multitude of work orders available for the month of December and was "very much surprised to. find that Herman was as actually slow as showed up on this record that I made." As found heretofore, Byers was out of town all day Tuesday, January 5, returning to. the plant "around 9 o'clock on the morning of January 6," which was described by Buchert as "kind of early for him to get in, and I was kind of surprised." Upon ar- rival, according to the testimony of Byers and Buchert, a conference was held be- tween them at which it was decided to discharge Butler because of his alleged non- productivity. If true, this explanation would appear to negate the idea that the discharge was discriminatory. At the early morning meeting of January 6, Byers had before him the analysis made by Buchert. Regarding this analysis Byers himself testified: "Frankly, I thought Mr. Buchert may have made a mistake and I asked Mr. Conly because he is an auditor to double check to be sure that all of the repair order num- bers had been included." Obviously at the time Butler was discharged Byers did not believe the economic data submitted. Conly's so-called analyses were not submitted until days after the discharge and hence could have played no part therein. Cer- tainly Byers did not discharge Butler on the basis of figures he did not believe. The handwritten analysis of Buchert's which Byers feared was inaccurate was not produced at the hearing having been lost or destroyed. If, however, it was no more- accurate than the analyses made by the auditor, Conly, Byers' fears regarding its ac- curacy were well-founded. Conly's analysis of the work done by Butler for the month of December purported to show that Respondent had paid Butler the sum of- $318.40 in wages while collecting only $284.29 from customers for Butler's labor. However a short comparison of the Conly analysis of Butler's record with the orig- inal repair orders disclosed so many omissions and errors amounting to as much as $40 on a single repair order with each omission and error without exception redound- ing to the discredit of Butler as to render the analysis valueless. Respondent also attempted to show that Butler's discharge was only a part of Re- spondent's general retrenchment policy covering all the various departments. That this was not so is to be clearly seen from the fact that about February 1, Respondent hired a new mechanic and that it was only after that event when Respondent let some five employees throughout the whole plant go in this retrenchment plan. Thus- Butler was dicharged a full month before the retrenchment plan went into effect and, therefore, was no part thereof. Hence it is clear, and the Trial Examiner finds, that Butler was not discharged for alleged nonproductiveness nor as part of a general retrenchment policy as claimed by Respondent. As to Respondent's further contention that it knew nothing of any concerted or union activities until after Butler's discharge, this contention just does not accord with the facts. Having for reasons stated heretofore resolved the credibility ques- tion regarding Buchert's many antiunion conversations against Buchert's denials thereof, it is clear that Respondent through Buchert knew of the existing union activities and particularly claimed to know that Butler was the "instigator" of those activities at least as early as January 4. This same finding as to Respondent's knowledge would have had to be made regardless of which way credibility was resolved for Buchert admitted that he told Byers on January 6 about a conversation on union activities in the plant he had had with employee Anderson on January 4. In addition both Buchert and Byers acknowledged that Buchert had reported the- employees' dissatisfaction over the Christmas bonus matter as early as the middle of- December. Hence Buchert clearly knew of Butler's activities and just as clearly- considered them sufficient to cause Butler's discharge if Byers would consent. GEO. BYERS SONS, INC. 315 There is no direct evidence that Byers knew of these union activities until 3 or 5 p. in. January 6 after the discharge of Butler. However Byers prided himself upon the daily close, intimate touch he maintained with the individual employees. In as small and compact an organization as Respondent's service department where the service manager, as well as Byers, were in daily intimate contact with the indi- vidual employees at all times, it would be difficult, if not impossible, for any organ- izational activities to go unnoticed as claimed by Respondent. In view of Buchert's statement of January 5 that he was probably going to discharge Butler as the "instigator" of the organizational attempt "but would wait to see what Mr. Byers wanted to do," it strains credulity to believe that Buchert failed to mention Butler's union activities to Byers in their early morning meeting when he and Byers determined on the discharge but, instead, waited, contrary to his expressed plans and for reasons unknown, until after working hours that day to express his fears that Butler's discharge might be construed as resulting from his union activities of which Buchert acknowledged he had known for at least 2 days. Furthermore the precipitous nature of the Butler discharge on January 6 adds to the necessity for disbelieving Respondent's contention. There was nothing in the economic situation requiring precipitous action. Byers admittedly disbelieved the economic data supplied and had ordered the auditor to prepare a new and correct analysis, an analysis supplied days after the determination for which it was sup- posedly being prepared. Indeed, as the retrenchment policy was not put into effect until after February 1, it is obvious that the need for retrenchment was not so imme- diate as to require Butler's discharge before the alleged basis therefor could even be prepared. On the other hand the union organizational activities were known to be requiring present and immediate action on Respondent's part if it were to be success- fully stopped. Respondent took that action hastily. The inference is irresistible -that Byers also knew of Butler's union activities. Thus by a process of elimination the Trial Examiner is forced to the conclusion that the Respondent discharged Butler on January 6, 1954, because he was the instigator of the union activities in the plant-even as Buchert had threatened the day before. Therefore the Trial Examiner finds that by such action the Respondent vio- lated Section 8 (a) (3) and (1) of the Act. 3. Frank Kerr The case of Frank Kerr differs somewhat from the above even though he was classed as 1 of the 2 "troublemakers" by Buchert after the discharges of January 6. Kerr's work had been criticized frequently and quite vehemently, as he himself admitted, for a considerable period of time both because of the dirty condition in which he frequently left the car upon which he had been working and also because of his sloppy workmanship causing "comebacks," a term denoting the return of an auto- mobile by its owner because of the unsatisfactory nature of the repair work done thereon. Such occurrences do not enhance a business' good will. In fact, Buchert had been unhappy about the reemployment of Kerr a year and a half before the time here under discussion following a previous resignation. However, the fact re- mains that for the following year and a half the Respondent was apparently at least sufficiently satisfied to retain Kerr in its employ despite these numerous criticisms. The facts show that Kerr was, like practically all the other employees in the service department, in favor of the Union. However he was rather inactive on its behalf -although he did make a telephone call to a fellow employee at the plant on behalf of the Union. He could hardly be classed as a leader in the movement. But the main differences in this case from that of Butler's is exemplified by the fact that Buchert and Byers held their alleged "retrenchment" meeting of January 6 and decided to discharge Butler-for union activities as found above-but, if the question arose, not to discharge Kerr. Subsequent to the decision to discharge Butler, Buchert returned to Byers' office demanding the dismissal of Kerr for having made at least in- discreet accusations against Buchert to the junk man, an indiscretion acknowledged by Kerr. According to Byers, this conversation was "the straw that broke the camel's back." It was agreed between Byers and Buchert that Kerr would be terminated at the end of the day due to a job he was then working on. Thus, if the Respondent believed that Kerr, like Butler, was active on behalf of the Union, it appears that Byers and Buchert decided not to discharge him for such activity at their early morning meeting at which they did decide to discharge Butler. Later that morning they did decide to discharge Kerr but for a totally distinct reason, to wit, the accusations against Buchert made in Kerr's conversation with the junk man. A discharge for such a reason is not an unfair labor practice. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, 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 Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent discriminated in regard to the hire and tenure of employment of Herman Butler on January 6, 1954, by discharging him, the Trial Examiner will recommend that the Respondent offer to Herman Butler immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of said discrimination by pay- ment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of the offer of reinstate- ment less his net earnings during such period, in accordance with a formula set forth in F. W. Woolworth Company, 90 NLRB 289. In the opinion of the Trial Examiner, the unfair labor practices committed by the Respondent in the instant case are such as to indicate an attitude of opposition to the purposes of the Act generally. In order, therefore, to make effective the inter- dependent guarantees of Section 7 of the Act, thereby minimizing industrial strife, which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft & Agricultural Implement Workers of America (UAW-CIO) is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discharging Herman Butler on January 6, 1954, thus discriminating in re- gard to hire and tenure of employment of said Herman Butler thereby discouraging membership in International Union, United Automobile, Aircraft & Agi icultural Implement Workers of America (UAW-CIO), the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting colli- merce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent committed no unfair labor practice by discharging Frank Kerr on January 6, 1954. [Recommendations omitted from publication.] BROADCASTERS OF BURBANK, INC. D/B/A RADIO STATION ICBLA and LOCAL 45, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, PETITIONER. Case No. 21-RC-2999. January 26,1955 Decision and Order Denying Motion to Set Aside and Nullify Certification On April 20, 1953, pursuant to a consent mail ballot election con- ducted by the Board, the Petitioner was certified as bargaining repre- 111 NLRB No. 51.