Lively Service Co.

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it, become a member of the Association. In the instant case there was no consent by the Employer to become part of whatever associ- ation existed among the Big Five.' The Employer was therefore free to reject the 1959 contract presented to it. Accordingly, as the Em- ployer never signed the Big Five contract, that contract is not a bar, and the Union's motion to dismiss on the ground of contract bar is denied. We find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. The following employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (c) of the Act : All drivers, helpers, and- warehouse employees of the Employer at its plant in Waltham, Massachusetts, excluding all other employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 3 See Andes Fruit Company, et al, 124 NLRB 781. Lively Service Company and International Association of Ma- chinists, Lodge No. 1635, AFL-CIO. Case No. 33-CA-530. April V, 1960 DECISION AND ORDER On June 24, 1959, Trial Examiner Wallace E. Royster 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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- 1 At the hearing and in its brief the Respondent alleges a failure on the part of the General Counsel to follow Board procedures in the following particulars . (a) Issuance of a complaint without obtaining a statement from Respondent as to its position ; and (b) the amended complaint was based on an additional charge, which had been given a case number different than that of the original charge (Case No 33-CA-552 instead of Case No 33-CA-530). We find no merit in Respondent 's first allegation . The original complaint was issued on February 27, 1959 The applicable section of the Board 's Statements of Procedures (Section 101 4 entitled "Investigation of Charges ," amended effective February 16, 1959, and appearing at 24 F .R. 1096) permitted the Regional Director in his discretion to dis- 127 NLRB No. 41. LIVELY SERVICE COMPANY 291 diate Report, the exceptions and brief, and the entire record 2 in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. The rationale of our dissenting colleague flows in the main from a finding of fact which he would make contrary to that of the Trial Examiner. He would find that at Respondent's meeting on December 6, 1958, prior to learning of any union activities, Respondent's officers decided to lay off three employees for economic reasons. Our colleague continues that, having decided to terminate three employees, President Lively announced this decision at an employee meeting on December 8, and asked for volunteers. We have carefully considered all the testimony with respect to Respondent's meeting of December 6, and, contrary to the dissent, we find, as did the Trial Examiner, that, although layoffs were discussed on December 6, no decision was made at that time. Thereafter, hear- ing of the pending organization of its employees, Respondent sched- uled a meeting with them on the morning of December 8. At that meeting President Lively told his employees that, although they had the right to join a union, no one was going to tell him how to run his business or what to pay his men. Lively depreciated the possible advantages of union representation and asked the men what their final decision would be. It was in this context that Lively also announced his decision to lay off three employees and made his request for volunteers. After a caucus just outside the door of the shop the men returned to Lively's presence and their spokesman, Blakely, advised Lively that their decision was to obtain representation by the Union. Before Lively left the meeting Blakely telephoned the union representative and also advised him of this decision. Shortly thereafter, the union representative came to Lively's office and requested bargaining. Lively refused to grant this request, stating that he would consult his attorney. Blakely, Childress, and Muller, all known union adher- ents, were terminated by Jones that afternoon, at the end of the work- day but before the end of the workweek, being informed by Jones that they were the employees who "disrupted the shop the most." In this pense with portions of the investigation Moreover, since Respondent has presented its case fully at the hearing and in its brief, we conclude that the failure to obtain a state- ment as to Respondent's position was not prejudicial As to the erroneous case number, Respondent, by stipulation with the General Counsel at the hearing, waived any procedural objections in this regard Accordingly, we affirm the Trial Examiner's ruling granting the General Counsel's motion that the amended complaint and the additional charge be further amended to show the correct case number. 2 Respondent, subsequent to the hearing, has moved that the record be reopened to re- ceive an affidavit which explains the substantial overtime work performed by Blakely during the 2 weeks prior to his discharge Even assuming, as the Respondent urges on the basis of this affidavit , that special and unusual circumstances required this overtime work, we are nonetheless in agreement with the Trial Examiner that Respondent dis- charged Blakely because of his union activities Accordingly, we deny this motion 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD context, the Trial Examiner found, and we agree, that the disruption adverted to by Jones was the organization of Respondent's employees. If such "disruption" refers, as Respondent contends and the dissent would find, to any unsatisfactory performance on the part of those terminated, we cannot perceive why Respondent found it expedient to offer each of the three men reinstatement within 3 or 4 months of their termination. The Trial Examiner's findings of 8 (a) (3) and (1) are largely based upon his resolution of the credibility of witnesses. We have adopted these credibility findings because we are not satisfied on a clear pre- ponderance of all the relevant evidence that his credibility resolutions are incorrect. Ore-Ida Potato Products, Inc., et al., 126 NLRB 271. Therefore, we agree with the Trial Examiner that Blakely, Childress, and Muller were discharged because of their union activities. Having already undermined the majority of the Charging Union by these discharges Respondent had no good-faith doubt in questioning the representative status of the Charging Union and refused to bargain in violation of Section 8 (a) (5) and (1) 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 Respondent, Lively Service Com- pany, Albuquerque, New Mexico, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Association of Ma- chinists, Lodge No. 1635, AFL-CIO, or in any other labor organiza- tion of its employees, by discharging any of its employees because of their concerted or union activities, or in any other manner discrim- inating in regard to their hire or tenure of employment of any term or condition of employment. (b) Refusing to bargain with the aforesaid union as the majority representative of its employees in the appropriate unit. (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 International Association of Ma- chinists, Lodge No. 1635, AFL-CIO, or any other labor organization,, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be. affected by an agreement requiring membership in a labor organiza-- tion as a condition of employment as authorized in Section 8(a) (3)• LIVELY SERVICE COMPANY 293 ,of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Doyle Blakely immediate and full reinstatement to his former or substantially equivalent position. (b) Make Doyle Blakely, Charles Childress, and Rudolph Muller whole in the manner set forth in that section of the Intermediate Re- port, entitled "The Remedy," for any loss of pay suffered as the result of the Respondent's discrimination against them. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under this Order. (d) Upon request, bargain with the Union as the exclusive repre- sentative of the employees in the appropriate unit. (e) Post in its shop in Albuquerque, New Mexico, copies of the notice attached hereto marked "Appendix."" Copies of this notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent, be posted imme- diately upon receipt thereof and maintained for a period of 60 con- secutive days thereafter, in conspicuous places, including all places where notices to shop employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by other material. (f) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. MEMBER RODGERS, dissenting : I disagree with the majority's conclusion that the Respondent vio- lated the Act. The pertinent facts are as follows : On December 5, 1958, the Re- spondent's employees discussed the possibility of contacting a union to act as their bargaining representative. The following day, December 6, and without doubt before the Respondent became aware of any interest in union organization on the part of its employees, Re- spondent's officials met to discuss business losses incurred during the prior month. It was decided, according to Respondent's uncontra- dicted testimony, that three employees would be laid off for economic reasons. Later that day, the Respondent's employees held an organi- 3In 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." 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zational meeting. On December 7, an official of, the Respondent learned of the employees' union activity. On December 8, 1958, Respondent's president, Lively, addressed a meeting of the employees, at which he stated that all employes had a right to join a union if they so elected. He then announced that, be- cause of financial difficulties, it had been decided that three employees would have to be laid off. He also requested that employees volunteer for layoff, stating that, if no one volunteered, the Respondent would have to select the three employees "who were the least assets to the Company." No volunteers were forthcoming. That same day, December 8, a union representative called upon Lively and presented a letter demanding recognition. The represent- ative exhibited authorization cards signed by the Respondent's em- ployees. Lively read the Union's letter and said that lie didn't know what he should do. The Union representative suggested that Lively should consult an attorney. Later that day, the Union filed a repre- sentation petition with the Board. Employees Blakely, Childress, and Muller were laid off late in the day of December 8. The Trial Examiner found that Service Man- ager Jones told Muller, at the time of the layoff, that these three em- ployees had been selected because they were "disrupting the Company the most." On December 10, the Respondent wrote the Union that it wished to have the question of representation decided by a Board election, as- serting that it had learned that "some of our employees" who had signed authorization cards had been coerced into so doing. The Respondent subsequently offered to reinstate each of the laid- off employees. On these facts I do not think that the General Counsel has sustained the burden of proving that Blakely, Childress, and Muller were dis- criminatorily discharged. In the first place, it is clear that the Re- spondent had decided, prior to learning of its employees' interest in unionization, to lay off the three employees for economic reasons. In the second place, the fact that Service Manager Jones told Muller that the three employees who were being discharged were "disrupting the Company the most" does not show, as the Trial Examiner finds, that these men were selected because of their union activities. The record establishes that these individuals were continually disrupting the decorum and working schedule in and out of the shop. Thus Blakely and Muller were responsible for most of the work which had been returned to the stop to be redone because their initial repair work had been unsatisfactory ; Blakely had engaged in a great deal of "horseplay" in the shop; Muller had caused friction in the shop by his frequent disagreements with the Respondent's general manager; and Childress had been in poor health, a fact which had caused the LIVELY SERVICE COMPANY 295 Respondent to utilize his services in the shop rather than in the field where he was definitely needed. Finally, the Respondent engaged in no independent 8 (a) (1) ac- tivity, but rather had advised its employees of their rights to join a union. In this context, I point out that one of the laid-off employees, Muller, was not a leader in the Union's organizational drive, and that all three of these employees were offered reinstatement several months later but declined to accept such offer. As for the 8 (a) (5) allegation against the Respondent, that too, in my opinion, lacks substance. For the reasons indicated, the 8(a) (3) allegation against the Respondent has not been proved. Nor is there here an independent 8(a) (1) allegation, or proof of such a violation. This case, therefore, cannot be fitted into the typical pattern of those in which an employer, having received a bargaining request, stalls, or rejects the request, and thereafter commits unfair labor practices, thereby dissipating the Union's majority.' Here the Respondent did not reject the Union's bargaining request. On the contrary, all we have here is an employer who, having received a bargaining request, asked for time in which to seek legal advice-a procedure, moreover, which was suggested to the Respondent by the Union itself. I would reverse the Trial Examiner herein and would dismiss the complaint in its entirety. Cf Franks Bros. Company v. N.L R B , 321 U.S. 702; Joy Silk Malls, Inc. v. N.L.R B., 185 F. 2d 732, cert. denied 341 U.S. 914. 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, we hereby notify our employees that : WE WILL NOT discourage membership in International Asso- ciation of Machinists, Lodge No. 1635, AFL-CIO, or any other labor organization, by discharging any of our employees because of their concerted or union activities, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees, in the exercise of their right to self- organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organ- ization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. IVE WILL offer Doyle Blakely immediate and full reinstatement to his former or substantially equivalent position without prej- udice to his seniority or other rights and privileges previously enjoyed. WE WILL make Doyle Blakely, Charles Childress, and Rudolph Muller whole for any loss of pay suffered as a result of the dis- crimination against them. WE WILL bargain collectively upon request with International Association of Machinists, Lodge No. 1635, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employ- ment, and other conditions of employment, and if an understand- ing is reached, embody such understanding in a signed agreement. The bargaining unit is: All shop and service employees, includ- ing the parts chaser, but excluding guards, watchmen, salesmen, office clericals, and supervisors as defined in the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union or any other labor organization, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. LIVELY SERVICE COMPANY, 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard before the duly designated Trial Examiner in Albu- querque, New Mexico, on April 28 and 29, 1959, on the amended complaint of the General Counsel of the National Labor Relations Board , herein called the Board, and answer of Lively Service Company, herein called the Respondent. The issues litigated were whether the Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Briefs have been received from counsel for the General Counsel and counsel for the Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: LIVELY SERVICE COMPANY FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 297 The Respondent is a New Mexico corporation with its principal place of business in Albuquerque, New Mexico, where it is engaged in the business of servicing, repairing, and renting heavy equipment. Respondent's gross annual revenues approximate $475,000. It purchases annually materials valued in excess of $50,000 which originate outside the State of New Mexico. I find that the operations of the Respondent are in and affect commerce and that the Board has jurisdiction to entertain the complaint. If. THE ORGANIZATION INVOLVED International Association of Machinists , Lodge No. 1635, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act, admitting to membership employees of the Respondent. Ill. THE UNFAIR LABOR PRACTICES On December 6, 1958, 10 of the 13 service employees of the Respondent attended a meeting at the home of one of them, Howard Graham, and listened to James Jones, Grand Lodge representative of the Union, explain the advantages of union representation. After a discussion, nine of them signed cards designating the Union as their bargaining agent. Doyle Blakely was chosen as spokesman for the group and following, according to his credited testimony, the instructions of the signers, he forthwith delivered the cards to James Jones. One of those in attendance, Cliff McMahan, telephoned Charley Jones, Respondent's service manager, and told Jones of the action taken. McMahan did not testify at the hearing but, according to Blakely, explained at the December 6 meeting that he thought it inappropriate for him to sign a card for the Union because he excepted, in the near future, to be promoted to a supervisory position. On,Sunday, December 7, Charley Jones met Graham and asked if the men had signed union cards. Graham admitted that this was so, whereupon Jones said that he felt aggrieved that the men would take such action without consulting him. Later in the day Jones told Blakely in a telephone conversation that he had learned of their meeting and its result, that he thought the men should first have discussed the matter with him, and said that he would like to meet with them all on the morning of the following day. Sometime on this Sunday, Blakely and another employee, Charles (Bud) Childress, called at the home of Everardo Fraide. When Fraide was told that all of the employees had signed union cards and that he probably would be required to do so if he desired to continue his employment with the Respondent, he followed the example set for him On Monday morning, December 8, at 7:30, all of the men gathered in the shop, and William E. Lively, Respondent's president, spoke to them asking first if the men had chosen a spokesman . Blakely volunteered that he occupied that position. Lively then went on to say that he had been told that the men had joined a union and Blakely agreed that this was so Lively said that he did not see how this action would either help or hinder the men and asked what benefits were anticipated. Blakely said that the men hoped, for one thing, that they would get some type of insurance. Lively answered that the Respondent had, for the past 2 years, been considering this question and now had a number of plans from which a selection would be made. Lively then went on to say that the business operations had re- sulted, in the month of November, in a loss in excess of $7,000, and that it would be necessary to cut the working force by three Lively suggested that if any among them had an intention to quit or was dissatisfied for any reason, he would like to know about it so as to avoid the necessity of discharging anyone who had a real desire to retain his employment 1 There was some rather general talk about pos- sible changes in a wage scale . Lively said he didn't want anyone telling him how to run his business or what to pay his men. Lively readily conceded that the men had an "American right" to belong to any organization they desired and said that he would go along with whatever their decision might be, but that he would not sign anything until he knew its content . In response to Lively's suggestion that he wanted to know what the final decision of the men was, they stepped out of the shop and discussed the matter briefly among themselves. According to Blakely, all agreed that they 1 Page 23, line 18, of the transcript incorrectly reads, "he asked me to resign " It is hereby corrected to read, "he asked men to resign " 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD still wanted the'Union to represent them.2 In the presence of some of the employees Blakely reported this decision to Lively and, in Lively's presence, telephoned James Jones to proceed. Accompanied by a representative of another labor organization, W. F. Leverenz, James Jones came to Lively's office that morning. Jones handed Lively a letter which, in substance, asserted that the Union represented a majority of the shop employees and requested recognition and an opportunity to bargain. At the same time, Jones told Lively that he had authorization cards from the employees and exhibited them. Lively read the letter and said that he did not know what he should do, whereupon Jones said that perhaps he should consult his attorney. Lively testi- fied that Jones, on this occasion, said that Lively might recognize the Union imme- diately or, if he desired, arrange for the conduct of an election. Jones and Leverenz denied that any mention of an election was made. Jones and Leverenz left. Some- time that afternoon Jones mailed a representation petition to the El Paso office of the Board. By a letter dated December 10, Lively told Jones, "As I advised you orally, I am of the opinion that the proper way for our employees to express their desires in this matter is through the auspices of an NLRB conducted secret election. It is especially necessary that we insist upon an NLRB election, inasmuch as some of our employees inform us that they were coerced into signing a union card." There has been no subsequent communication between the Respondent and the Union. A. The discharges At the close of the workday on December 8, Blakely, Childress, and iRudolph Muller were discharged. Blakely had been in the Respondent's employ for about 14 months; Childress and Muller for about 2 years. Blakely had been hired, according to Jones, as a helper but the evidence establishes that at the time of his discharge he was something more than that. I think it more accurate to describe him as a mechanic or at least a mechanic-in-training. He was frequently assigned to 'do mechanical work in and out of the shop, and, according to Jones, when the decision to discharge Blakely was in the stage of discussion, Blakely's work was compared to that of Kenneth Pierson, a mechanic. Finally, he was paid at the same rate as J. B. Taylor, also a mechanic. In early 1958, Blakely was sent to Minneapolis where at Respondent's expense he was given training in the mainte- nance and repair of certain equipment. Sometime later in that year he attended for 1 day another and different training school in Albuquerque. On December 4, 1958, at the direction of Jones he received instruction at another such school also in Albuquerque. In connection with sending employees to training schools, Jones testified, "We try to get the knowledge to the man that we think is going to benefit the company the most if he work out, and well, that's the type of man that we like to keep. Some of them are gratifying for it and others are not." Q: "You mean by gratifying that some of them benefit from going to school and others don't" A • "That's right " Somewhat later in his testimony Jones explained, lamely, that Blakely was sent to the school on December 4 so that the Respondent might be represented there. Rudolph Muller, a mechanic, had according to Lively considerable experience in maintenance and repair of the type of equipment coming to the Respondent's shop but was not as skilled as others. In the belief that he might be a good supervisor, in the spring of 1958, Muller was promoted to foreman of the shop and for about 6 months thereafter worked under Charley Jones in that capacity. About November 15, 1958, Muller was put back as a mechanic and another became foreman in his place. Thereafter until his discharge on December 8, Muller worked as a mechanic in the shop. On some occasions during his tenure as foreman Muller found himself in disagreement with Jones in respect to some practices followed by Jones in doing shopwork. The Respondent concedes that Muller is a competent mechanic but asserts that those it retained in its employ on December 8 were reasonably believed to be better. Childress did not testify. He is described in the testimony as a highly competent welder but in uncertain health. On December 8, according to Jones, there was no welding to be done in the shop except on some items that the Respondent was fabricating for its own use and for which there was no immediate need. Jones testi- fied that Childress was in truth being kept busy on "made work" and that the only 3I credit Blakely here Some of the employees testified that they intended rather to postpone decision for a time. If so they did not make themselves heard and did not protest Blakely's contrary representation to Lively. LIVELY SERVICE COMPANY 299 need for a welder to be anticipated was on jobs away from Albuquerque where Childress because of health considerations could not be used. After the meeting of the employees with Lively on the morning of December 8, Blakely at first worked on some mechanical job but later in the day was told to assist Childress in welding. Muller began work with the assistance and guidance of a factory representative on the repair of a transmission About 4:30 that after- noon Jones came to Blakely and said, according to the testimony of the latter, that it was necessary to let three men go, that Lively had instructed Jones to select those who had been disrupting the shop the most, and that Blakely was one of them. According to Muller, Jones called him to the office on the afternoon of the 8th and told him that he was to be discharged at the close of the day. Muller asked if his work had not been satisfactory and Jones admitted that it was. After about 20 minutes of talk, according to Muller, Jones said, "You three fellows [are] disrupting the company the most of any men we have got here." A little later in the day, when Muller was loading tools, Jones repeated this reason to Muller and Blakely. D. Orton Smith, Respondent's general manager, testified that in the month of November he noted that men in the shop seemed to have considerable leisure time which they occupied by standing around and with horseplay Blakely was one who participated in the latter diversion. In consequence, according to Smith, he men- tioned to Jones that an opportunity seemed to exist to cut overhead costs by letting some of the shop crew go. When, on December 6, the Respondent's earnings state- ment for November was cast up, showing a loss in excess of $7,000, Smith, Lively, Jones, and Foreman James Moberg met and spent that afternoon discussing what might be done to avoid further losses. It is contended on behalf of the Respondent that a decision was reached that afternoon to cut the work force by three and to leave the selection to Jones. There is no evidence to show that any of Respondent's representatives knew then that employees were contemplating a union affiliation. Lively's testimony as to what took place that afternoon provides a slender basis for a finding that such a decision was reached. The appropriate question was asked him clearly enough but he did not answer it except possibly by indirection. Much the same thing is true of the testimony of Smith. He testified that something had to be done-either "curtail some of our operations or lay off some of our men " 3 Jones comes closer than Lively or Smith in supplying testimony to support the asserted decision of December 6 to lay off three men. He testified that there was a discussion of November losses and that a decision was reached that there must be "a layoff of some kind." In response to the question: "How many people did you decide would be laid off?" he answered: "Well, three was the number that we discussed." Jones testified that it became apparent early Monday afternoon that no one intended to volunteer for layoff so it became necessary for him to decide who should be let go. Reasoning that there was nothing but "made work" to occupy Childress; that Muller was not a first-rate mechanic and in any event could probably find employment in another shop where he previously had worked; and that Blakely was the least valuable to the Respondent of the remaining employees, he decided that these three should be let go and so advised Lively. After a discussion, according to Lively and Jones, agreement was reached that these discharges would "disrupt the shop the least." According to Jones he informed the men affected that it was necessary to cut the work force and that the shop would be least disrupted by letting them go. Respondent concedes the competency of each of them and asserts that each has been offered reemployment as work in the shop increased but argues that the selections were made in the exercise of its best judgment without consideration of union membership or activity. The first question for decision is whether the Respondent determined prior to receiving any knowledge of the appearance of the Union to cut its working force. The accounts given by Lively, Smith, and Jones as to what took place in the meeting on December 6 do not in my opinion answer the question to entire satisfaction but S There is in evidence a writing which Smith said he gave to Jones at some time read- ing • "Charlie during our Company meeting today Mr. Lively and I discussed the profit and loss statement to you and as advised we lost a total of $7,745 45 for the month of November Since all the Euclids have been delivered to Morrison-Kaiser and F & S I would suggest that you immediately lay off at least three servicemen as we must cut our overhead We cannot stand anymore such losses as we had in November These men should be laid off no later than Monday December 8th " This writing has no intrinsic evidentiary value ; it does not satisfy the requirements of the shop book rule. As it is clear that Jones did not act on the strength of the memorandum, I base no findings upon it. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it is common experience to encounter witnesses who are blissfully unaware that ideally they are required to answer a question directly without indulging in the assumption that everyone will know what is meant in any event . I am not certain that Lively, Smith, or Jones was evasive in respect to the meeting but I do not consider their testimony to constitute a firm basis for a finding that any final decision was reached on that occasion to discharge any set number of employees. There is substantial evidence- that, except for welding, there was enough work in the shop to keep all hands employed. In the week ending December 6, Blakely worked a total of 54 hours, 10 of them at overtime rate. Muller testified that there was plenty of work of a mechanical nature at hand. Respondent's billings' for shop work rose from $7,800 in November to more than $13,000 in December. Lively testified that billings of approximately $12,000 marked the "break-even" point. It is possible that little of the December work that developed was predictable on December 8 but no such contention is made. Blakely's overtime and Muller's observations as to the work to be done indicate that the necessity for a layoff was less apparent in December than in the previous month. When he learned that the employees had signed cards for the Union Jones said that he was "hurt" that they would do so without first consulting him. It was Jones who asked the men to attend the meeting on the morning of December 8 where Lively depreciated the advantages of representation by the Union. I think that there was nothing unlawful in what Lively said although the injection of the matter of a layoff in his talk may have caused an apprehensive shiver or two. But he made it clear that he thought the employees were taking an unwise step that promised them no benefits. It is easy to believe, and I do, that Jones would consider it accurate to characterize union protagonists as a disrupting influence in the shop. Both Muller and Blakely were positive in their testimony that Jones so described them and Childress when notifying them of their discharge. I do not credit Jones' denial that he did so and I do not accept the proffered explanation that either Muller or Blakely misunderstood what was said. Finally, Lively said that he would "go along" with the decision of the men but when it was made known to him by Blakely that they still wanted union representation he refused to do so. It is not for me to tell the Respondent how to run his business or when a layoff may be justified. If the Respondent was moved by economic considerations to discharge Blakely, Childress, and Muller no violation of the Act is presented. It is possible to view the evidence in this record as indicating that the economic interests of the Respondent were served by making the discharges on December 8. Evidence has been detailed however sufficient to lead me to the conclusion that none of those discharged was selected upon the basis of his value as a workman or in consideration of the Respondent's need for his services. I think that the validity of this conclusion is most easily demonstrated in the case of Blakely. Lively testified that Blakely seemed when first hired to give promise of being a valued employee The Respondent thought enough of him to undergo the expense of training in Minneapolis and in Albuquerque. The testimony of Jones that such training was given only to men whom the Respondent wanted to keep evidences rather clearly, I find, that Blakely in the eyes of the Respondent was such a man as late as December 4. No claim is made that subsequent to that date he demonstrated by his work that he was losing his value as an employee. But in fact he did so when he appeared as the spokesman for the men who had joined the Union. After Lively had made his talk to the men, a talk which was in the nature of a plea for them to change their decision, it fell to the lot of Blakely as spokesman to tell Lively that there would be no change. Blakely's status before the end of that day changed from a valued employee in whom the Respondent was willing to invest money in the belief that it was profitable to do so to that of an outcast-in the testimony of Jones-one whom the Respondent could let go with the least harm to the organization but in truth one who, by his position of leadership in the selection of the Union, was disrupting the shop the most Although Lively testified that he thought that the three men were being laid off with the expectation that they would be recalled when business improved, they were not told so. As to Blakely, the evidence shows no such intention was demonstrated Since December 8, but on dates which I do not find in the record , -at least two mechanics have been hired. Blakely has never been offered a job as a mechanic with the Respond- ent since his discharge. He had been offered employment as a welder but did not accept it. Muller came to the Respondent's employ in February 1957, so had worked ap- proximately 22 months when he was discharged . He attended the meeting of the employees on December 6 -and signed a card authorizing the Union to represent him. Muller was in no sense a leader in this development and his testimony is susceptible LIVELY SERVICE COMPANY 301 of the interpretation that he signed with some reluctance. It will be recalled that McMahan telephoned Jones on that evening first to tell Jones that such a meeting was to be held and second to report what had happened. In this fashion the Respondent learned that all but three of the shop employees had signed union cards and this included Muller. Jones testified that he selected Muller for discharge and it is of course essential to determine why he did so. I have found that Jones told Muller on December 8 that Muller was one who was disrupting the shop the most. Muller so testified and I credit him. Muller also testified, credibly and without contradiction, that on this occasion Jones assured him that he had no fault to find with his work. It is true that Respondent's defense is not based upon the premise that Muller or any one of the three had demonstrated incompetency. All are con- ceded to be good workmen-just not as good as those retained. The record suggests that Jones may have resented Muller's possible assertions that Muller was a more capable supervisor than Jones or that Muller and Jones sometimes found themselves in disagreement as to how certain repairs could best be made. Jones testified that he selected Muller for discharge because there remained in Respondent's employ men more capable than Muller and because he was certain that Muller could find employment with another company, the company which did hire Muller a few days after his discharge. If this was so it is difficult to understand why Jones did not give these reasons to Muller rather than saying that Muller was one of those dis- rupting the shop the most. Muller was offered reemployment on March 30, 1959, and refused it. Childress appears to have been assigned welding work only and to have been fully qualified in that skill. All witnesses who were questioned in that connection said that there was little welding work to be done in November and December. In consequence Childress for some time had been principally engaged in fabricating some racks and stands for use in the shop. According to Jones this was work that need not have been done. Although I am certain that the work in which Childress was engaged was not of a character that would bring immediate revenue to the Respondent I consider it unlikely that it was in any sense a "leaf raking" project. The Respondent undoubtedly expected to realize some benefit from Childress' work. Furthermore, the fact that Childress was highly skilled and that the Respondent seems generally to have had need for a welder suggests that it found it advisable to provide nonrevenue work for Childress during slow periods in order to retain him on the payroll for periods when he would be needed. At least this was the situation until December 8. In the afternoon of December 7, Blakely and Childress went to the home of Everardo Fraide, a helper in the shop. Fraide had not attended the employee meeting the previous evening. Blakely and Childress told Fraide of the result of the meeting and secured Fraide's signature to a union designation card. Fraide, that same afternoon, reported the visit to Jones. So on December 8, the Respondent knew that Childress not only had signed a card but had solicited Fraide to do so. This of course indicated to the Respondent that Childress was more than a passive figure in the organizing movement. It is this circumstance, I am convinced, that persuaded Jones to the conclusion that Childress was a disrupting influence in the shop and which led to his discharge. The Respondent has hired three or four welders since December 8 and in late February 1959 offered Childress an opportunity to return. Whether the offer to Childress was made before or after another welder was taken on is not answered with any certainty in this record. Childress did not accept. In conclusion, I am unpersuaded that the Respondent found itself on December 6 in a situation where it felt that it must move quickly and drastically to cut costs. I do not credit the testimony that any decision was made on that date to lay off three or any other number of men. On December 8, after learning that most of the men in the shop had designated the Union, Lively said that three would have to be cut from the payroll and asked for volunteers. Whether he was moved to this decision by considering the November loss in connection with the threat of union representation is uncertain. He did resent the intrusion of the Union in his shop and said in the talk to the men, according to the credited and uncontradicted testimony of Blakely, that he did not want anyone to tell him how to run his business or what to pay his men. Jones was "hurt" when he discovered that the men had chosen the Union without consulting him. It may be true, as the Respondent contends, that its shop was overmanned on December 8, although the amount of service work billed in December gives rise to doubt. I think it certain, however, that the Respondent had no firm intention to cut the work force before it learned of the union movement. Until then the Respondent had been willing to continue Childress in work bringing in no revenue Suddenly, on December 8 it was not Finally, Jones said that Blakely, Childress, and Muller were discharged because 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they disrupted the shop most. Nothing of a disrupting nature had taken place except the unwelcome news that a union - was now the representative of the men. That was enough. I find that the Respondent on December 8 discharged Blakely, Childress, and Muller because of a belief that each of them was active in promoting the interests of the Union in the shop and that by means of discharge the Respondent might be able to discourage adherence to the Union By these discharges the Respondent discouraged membership in and activity on behalf of the Union and thereby violated Section 8(a)(3) of the Act. By the discharges the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8(a) (1) of the Act. B. The refusal to bargain The amended complaint alleges and Respondent's answer denies that all of Re- spondent's shop and service employees, including the parts chaser, but excluding guards, watchmen, salesmen, office clericals, and supervisory employees, constitute a unit appropriate for purposes of collective bargaining. All of the evidence bearing upon the propriety of this unit indicates that it is a feasible one. The employees included work in the same shop under the supervision of a single foreman, perform- ing similar or related work. I find that the described unit is an appropriate one for purposes of collective bargaining within the meaning of Section 9(b) of the Act. On December 6, 1958, 9 of the 13 employees in this unit signed cards designating the Union as their representative. On the following day, a 10th, Fraide did so. One of those signing on December 6, Bennie Garcia, testified that he did so in the belief that he might not be able to keep his job otherwise. Fraide testified that he signed on December 7 because of Blakely's advice that if he did not do so he would be laid off sooner or later Both Garcia and Fraide testified, in substance, that they felt that they had no choice in the matter, that their employment depended upon their signing The testimony of Blakely is substantially to the effect that he made no threats of this character, but that all employees understood that if a union was organized, membership would be a condition of employment. Muller testified that he was the last to sign at the December 6 meeting and that he did so only after he was satisfied that the decision was practically unanimous He ex- plained in his testimony that one could not expect to remain employed in an organized shop if he failed to become a member of the Union. Even if it be con- sidered, and I do not, that Fraide, Garcia, and Muller were placed under some sort of unlawful compulsion in order to obtain their signatures, it still remains the fact that on December 8 the Union had been selected as bargaining representative by 7 of the 13 workers in the shop. As to these seven there is no suggestion that their signatures were attained by coercive means. I find therefore that in any view of the evidence the Union was, on December 8 when request for recognition was made, the majority representative of the employees in the appropriate unit within the meaning of Section 9(a) of the Act. The Respondent asserts that it was provided no proof of the Union's status on that day and that in any event it had the right to put the Union's claim to the test of an election -by secret ballot It is unnecessary to enter into a protracted discussion of the Respondent's position for by the unfair labor practices it committed that day in discharging Blakely, Childress, and Muller, the Respondent made it impossible for an election to be conducted free from the pressures thus engendered. The natural, and I find, intended effect of the discharges, was intimidatory. Those who favored the Union in the morning of December 8 had reason later that day to question the wisdom of their judgment 4 Furthermore the Respondent had no reason to doubt the majority claim. McMahan demonstrated his loyalty by telling Jones of the intended meeting of December 6, and, later, by informing him of what took place. Certainly the Respondent had reason to believe in the bona fides of McMahan and thus to trust the report he gave. Finally, on the morning of December 8 during the talk that Lively made to the employees, McMahan was the only one who expressed opposition to the Union. After Lively's talk and after the men had conferred, Lively was told by Blakely in the presence of other employees that the men still wanted the Union I find that on the occasion of the visit of James Jones with Lively on December 8 the Respondent held no good-faith doubt as to the majority status of the Union. I find therefore that by refusing on December 8 and thereafter to bargain with the Union as the majority representative of the 6 Most if not all the employees have indicated that they no longer desire the Union to represent them. That Respondent's unfair labor practices contributed to these defections is reasonably certain LIVELY SERVICE COMPANY 303 employees in the appropriate unit the Respondent violated Section 8(a)(5) of the Act. By this refusal to bargain the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby violated Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations 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 Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has discriminated in regard to the hire and tenure of the employment of Blakely, Childress, and Muller, it will be recommended that it offer to Blakely immediate and full reinstatement to his former position without prejudice to seniority and other rights and privileges previously enjoyed. I consider the evidence to establish that offers of reinstatement have been made to Childress and Muller. It is apparent that neither desires to return to work with the Respondent. It is true that an offer of employment was also made to Blakely but not to his former or substantially equivalent job. It will be recommended that the Respondent make Blakely, Childress, and Muller whole for any loss of earn- ings sustained by reason of the discharges on December 8, 1958, by payment to each a sum of money equal to the amount he would have earned in Respondent's employ from the date of discharge to, in the case of Muller and Childress, the date of the offer of reemployment, and in the case of Blakely, to the date of offer of reinstatement, less in each case the net earnings during that period. Backpay shall be computed in accordance with the Board's Woolworth formula.5 Loss of pay shall be determined by deducting from an amount equal to that which each would have earned for each quarter or portion thereof, his net earnings in other employ- ment during that period. Earnings in one particular quarter shall have no effect upon the backpay liability for any other quarter. Having found that the Respondent has unlawfully refused to bargain with the Union in respect to its employees in an appropriate unit, it will be recommended that the Respondent be required upon request to bargain with the Union. 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. International Association of Machinists, Lodge No. 1635, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the tenure of employment of Doyle Blakely, Charles Childress, and Rudolph Muller, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. All shop and service employees of the Respondent including the parts chaser but excluding guards, watchmen, salesmen, office clericals, and supervisory em- ployees, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On and since December 6, 1958 the Union has been and is the majority repre- sentative of the employees in the appropriate unit for purposes of collective bargain- ing in respect to rates of pay, wages, hours of employment, or other conditions of employment within the meaning of Section 9(a) of the Act. 5. By refusing on December 8, 1958, and thereafter to bargain with the Union the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (5) of the Act. 6. By the discharge and by the refusal to bargain the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 0 5 F TV. Woolworth Company, 90 NLRB 289.