South Rambler Co.

SOUTH RAMBLER COMPANY 1197 outflow may be combined and direct and indirect inflow may also be combined to meet the $50,00'0 requirement. However, outflow and inflow may not be combined. 2. Office buildings: Gross revenues of $100,000, of which $25,000 or more is derived from organizations which meet any of the standards except the indirect out- flow and indirect inflow standards established in the Siemons Mailing case, Mistletoe Opel ating Co., 122 NLRB 1534. 3 Public utilities: $250,000 gross volume of business, or $50,000 outflow or inflow, direct or indirect. Sioux Valley Empire Electric Association , 122 NLRB 92. 4. Newspapers and communication systems-radio, television, telegraph, and telephone: $100,000 gross volume of business. Raritan Valley Broadcasting Co., Inc, 122 NLRB 90. Newspapers: $200,000 gross volume of business. Belleville Employing Printers, 122 NLRB 350. 5. Retail: $500,000 gross volume of business. Carolina Supplies and Cement Co., 122 NLRB 88. 6. Hotels: $50,000 gross revenues. Floridan Hotel of Tampa, 124 NLRB 261. 7. Transportation enterprises, links and channels of interstate commerce: $50,000 gross revenues from furnishing interstate transportation services, or performing services valued at $50,000 or more for enterprises which meet any of the standards except the indirect outflow and indirect inflow standards established in the Siemons Mailing case. H.P.O. Service, Inc., 122 NLRB 394. 8. Transit systems: $250,000 gross volume of business. Charleston Transit Company, 123 NLRB 1296. 9 Taxicabs: $500,000 gross volume of business, retail standard applies. Carolina Supplies and Cement Co , 122 NLRB 88, 89, footnote 5. 10 National Defense- Board asserts jurisdiction over all enterprises, as to which it has statutory jurisdiction, whose operations have a substantial impact on national defense. Ready Mix Concrete and Materials, Inc., 122 NLRB 318. South Rambler Company and Taxi Cab Drivers, Chauffeurs and Helpers, Local No. 762, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 17-CA-1957. November ,°?1, 1962 DECISION AND ORDER On August 9, 1962, Trial Examiner Harold X. Summers 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 attached In- termediate Report. The Trial Examiner also found that the Re- spondent had not engaged in any other unfair labor practices as alleged in the complaint. Thereafter, the Respondent and the Gen- eral Counsel filed exceptions to the Intermediate Report and briefs in support thereof.1 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The ' The Respondent's request for oral argument is denied inasmuch as the positions of the parties ale adequately set forth in the record , exceptions , and briefs. 139 NLRB No. 104. 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the modifications noted herein.2 The Respondent excepts to the Trial Examiner's finding that through General Sales Manager Ilromek, it engaged in unlawful surveillance. We find merit in this exception. While the record shows that Sales Manager Graham attended the union meeting of March 20, after he had reported his intention to attend to Hromek and was told to "go ahead," it also appears that Graham had been invited to the meeting by a union adherent and there is no exception to the Trial Examiner's finding that Graham did not engage in surveillance. Contrary to the Trial Examiner, we find in the cir- cumstances that Hromek's conduct also did not constitute surveillance and we shall dismiss this portion of the complaint? ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner except that paragraph 1(c) of the Order and the corresponding portion of the notice are hereby deleted, and the Order is modified to provide for interest on backpay, as provided herein. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is dismissed, insofar as it alleges violations of the Act other than those found herein. 2 We hereby modify the backpay remedy to include payment of interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co , 138 NLRB 716 For the reasons stated in his dissenting opinion in that case, Member Rodgers does not join in this modification. 3 Cf. Thomas W. Moylan Company, Inc, 136 NLRB 262. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon unfair labor practice charges filed on March 26, 1962, by Taxi Cab Drivers, Chauffeurs and Helpers, Local No. 762, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, against South Rambler Company, herein called the Respondent, the General Counsel issued a complaint on May 10, 1962 , alleging that Respondent had engaged in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the National Labor Relations Act, herein called the Act . Respondent's answer admitted some allegations of the complaint , denied others, and denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Harold X. Summers at Omaha, Nebraska , on June 27 and 28, 1962. All parties were afforded full opportunity to examine and cross -examine witnesses , to argue orally , and to submit briefs. Briefs have been filed by the General Counsel and by Respondent , which briefs have been fully considered. Upon the entire record in the case, including my evaluation of the credibility of the witnesses based upon the evidence and upon my observation of their demeanor, I make the following: SOUTH RAMBLER COMPANY 1199 FINDINGS OF FACT 1. COMMERCE At all times pertinent herein, South Rambler Company, a Nebraska corporation maintaining its principal office and place of business at Omaha, Nebraska, has been engaged in the sale and repair of new and used automobiles. During the 12 months preceding May 10, 1962, Respondent, in the course and conduct of its business operations, sold and distributed products valued at in excess of $500,000;,and during the same period Respondent received goods valued at in excess of $50,000 from States other than the State of Nebraska. I find that Respondent is engaged in commerce within the meaning of the Act. II. THE UNION Taxi Cab Drivers, Chauffeurs and Helpers, Local No. 762, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The personnel involved Respondent's president and secretary, respectively, are Edward and Frank Hulac, who also have financial interests in Hulac Chevrolet Company.' Walter Hronek, administrative assistant to the Hulacs, is on the payroll of Hulac Chevrolet, but he exercises certain functions with respect to Respondent: he hired the present general sales manager for Respondent and transferred the used car sales manager from Hulac Chevrolet to Respondent; he oversees Respondent's operation in an advisory capacity, handles its advertising, and, occasionally, runs Respondent's sales meet- ings; and, from time to time, he is consulted with respect to hirings and discharges. Respondent's sales force, at times pertinent herein, consisted of Reynold (Ray) Hromek, general sales manager; Edward Meinke, assistant sales manager for new cars, and new car salesmen Richard Brown, Robert Dworak, and Richard Matthews; and Harold Graham, used car sales manager, and two used car salesmen. The testimony or stipulations establish, and I find, that Edward Hulac, Frank Hulac, Walter Hronek, Ray Hromek, Edward Meinke, and Harold Graham are supervisors within the meaning of the Act. B. Chronology of events 1. On various occasions, both prior to and subsequent to the end of January 1962,2 Richard Brown had displayed dissatisfaction with the amount of compensation re- ceived by Respondent's salesmen. He believed that the compensation should be higher, that there should be a guaranteed monthly commission, and that car sales- men needed a union. He made no secret of these beliefs among his fellowworkers and-I find-management was aware of them. 2. At or about the end of January, at a sales meeting, Respondent explained its new 5-year plan on financing. Since business had been slowing down, ways of stimulation were discussed. Salesmen-particularly Robert Dworak, who was rela- tively new-raised questions, which were answered. 3. February sales were very poor. They totaled 20 units sold, less than half the units sold in February 1961, despite the fact that American Motors 3 sales else- where were quite high. 4. Early in March, a sales meeting was held 4 at which it was announced that American Motors and Respondent would jointly contribute an extra $10 to the salesmen for each car sold. Each salesman was asked to set down a fair quota for himself, and a party was promised for those who met their quotas. Enthusiasm ran high. 5. On or about March 8, Walter Hronek and Ray Hromek met with at least five of the salesmen individually. The purpose was to elicit suggestions, complaints, or criticisms, to air problems, and, generally, to "jack up" the salesmen. Not a party hereto. 2 Unless otherwise indicated, all dates mentioned herein are for the year 1962. 8 Whose new cars Respondent sold 4 Sales meetings were held at least three times per week. Only those particularly bearing upon the issues are here discussed. 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. John Campbell, business agent for and president of the Union, had purchased an automobile from Respondent, Brown being the salesman. On or about March 15, he went to the premises of Respondent for his 1,000-mile checkup. He asked Brown how things were going. Brown answered, "Not too good, it has been a little slow. What we need is a union." Campbell gave Brown his card, saying that if he was serious about this he should sound out the other salesmen. During the following week, Brown spoke to his fellow salesmen and ascertained that there was substantial interest in the Union. 7. On or about March 20,5 there was a so-called luncheon union meeting. Early in the day, Campbell called Brown and asked him if there was interest in the matter they had discussed. Brown said he believed he had "seven out of seven " 6 It was arranged that as many of them as were available should meet at a restaurant at lunch time to discuss the formation of a union. Brown passed around word of the meeting. At or about noon, he and Dick Matthews, one of the other new car salesmen, left for the restaurant. As they started, they encountered Ed Meinke, assistant sales manager for new cars, and invited him to come along. The three went to the restaurant, where they met Campbell and a Mr. Robbins, connected with the Union. Subsequently, they were joined by Harold Graham, used car sales manager. Benefits of union organization were recited; questions were asked and answered. Among items discussed were pensions, work hours, guaranteed commissions, and the hiring and firing of salesmen. Union authorization cards were signed by Brown, Matthews, Meinke, and Graham.? At the close of the meeting, Graham took two blank authorization cards for the use of the two used car salesmen who were not present, and Brown took at least one card-for Dworak. Matthews took three or four cards. ,8. Prior to the meeting, Hai old Graham had had lunch with Ray Hromek. Brown had already invited Graham to attend the union meeting, and Graham conveyed this fact to Hromek. They discussed the Union and both were "curious about how [the Union] handled the firing and hiring of car salesmen." Anderson told Hromek he was attending the meeting and would see "what I could find out as far as the management end of it is concerned " Hromek said, "Go ahead " After Graham returned from the meeting, Hromek asked him and he reported to Hromek what had occurred there. Specifically, he asked Graham if he had joined the Union, and how the "other boys" felt about the Union-whether they were still "worked up." 9. Upon the return of Brown and Matthews from the meeting, they told Dworak- who was on duty-what had transpired at the meeting, and he signed an authoriza- tion card for Brown.8 10. At or about this time, Brown, Matthews, and Dworak met Hromek. Al- though he already knew the answer, he asked them where they had been. Brown told him they had met with the Union's representatives at Harry's Cafe. Hromek, visibly upset, said that Ed Hulac would close the place before a union came in- "they would close the place first." 9 11 Hromek, on that day or the next, notified Hronek of the union meeting.10 8 In this record there is dispute and confusion as to whether this took place on March 20 or March 21. To the extent that it becomes material, on the basis of the surrounding circumstances, I find that March 20 is the correct date 6 The seven he referred to consisted of new car salesmen '_lieinke, Dworak, Matthews, and himself, used car salesmen Graham, and two others 7 Apparently, the cards were dated 1 day earlier, on the assumption that this gave greater protection against retaliatory action by Respondent Respondent, at the hearing, urged that this bears upon the credibility as witnesses of those who predated cards ; in making my findings, I have given this due consideration 8 Graham procured the signatures of the two used car salesmen on his authorization cards and gave them to Brown Subsequently, all three signed cards were turned over to the Union As above found, the conversation does not accord completely with the version of any one of the four participants, all of whom testified. (Hromek, for example, denied that any such conversation took place, later he conceded that he had asked where the men had been.) In addition to observing their demeanor while testifying, I have made due allowances for their self-interest, and I have considered the incident, from the standpoint of plausibility, in the light of all the surrounding circumstances io Brown and Dworak testified that he started to telephone Hronek as they left him at the conclusion of the conversation last recited. Hromek denied this, but conceded that he did relay the information to Hronek. SOUTH RAMBLER COMPANY 1201 12. That evening, Hromek appeared at the auto agency." His testimony and that of Brown as to the ensuing conversation are diametrically opposed to each other. Accoiding to Brown, Hromek started quizzing those present-Brown, Matthews, and Meinke-about the Union; specifically, he asked Brown what he thought of it. When Brown averred, and repeated, that he favored the Union, Hromek said, "If you join a union they can't fire you, isn't that right?" When Brown said that that was correct, Hromek said, "That is right, like so-," and he made a gesture which was demonstrated in the hearing room and which Brown interpreted-cor- rectly, I find-as meaning "Like hell you can't be fired!" In the same conversation, Matthews spoke up, half-jocularly, saying he was going to be "in charge of griev- ances," to which Hromek replied, "Why don't you shut your God-damned mouth?" As I have indicated, Hromek's testimony differed. According to him, on the m.-ht after the meeting, Brown, no witnesses being present, told him that the Union had a plan for sales managers and tried to "sell" Hromek on being active in the Union. At this, Ilromek admittedly made the gesture which could also be inter- preted, I find, as meaning, "Go fly a kite!" Matthews, in part, corroborated Brown. He testified that a conversation took place at or about this time, attended by Hromek, Brown, Meinke, and himself, at which there was some "kidding" about the Union, during which he (Matthews) jokingly said he was going to be the union steward. Meinke-whom I have found to be a supervisor-gave no testimony on the incident. Under the circumstances, I find the conversation to have been as related by Brown.12 13. A number of hours later, Matthews had a telephone conversation with Ilromek i3 They spoke for an hour, with Matthews doing most of the talking He expiessed enthusiasm for the Union and pointed out that it could benefit "sales managgers." He soon sensed that Hromek was "not too happy" and did not share his enthusiasm. in fact, Hromek clearly indicated that he lacked appreciation of Matthews' "invitation" and that he held the Union in low regard. Specifically, he referred to the Union as a bunch of Communists Among other things, he said he thought that Ed Hulac would close the place before he would let a union in. Then, he asked if Matthews thought that the Union had "planted" anyone with Respondent. Specifically, he mentioned Dworak. Matthews said, "No," but that "Brown had been stirring up trouble," that he had earlier belonged to unions and that he was involved in this one, and that he was getting everybody excited and wanting "to march on Hulacs and everybody quitting " i4 14. In the evening edition of the Omaha World-Herald, on Wednesday, March 21,15 under the heading "Personal Services," the following advertisement appeared: Car salesmen, new and used. New union being formed, managers union affilia- tion. Benefits are $400-$500 guarantee, no house deals, five-day week, paid "Although his appearance on evenings off was quite unusual, Hromek gave a reason- able explanation for the occasion. I have not drawn, nor will I draw, any assumption unfavorable to Respondent arising out of this circumstance i3 Hromek was an enigmatic witness At times, he was disarmingly frank, making ad- missions against his own interests , at other times, he was evasive, pleading lack of recol- lection, and then taking positive positions 13 There was some confusion as to whether Matthews called Hromek or Hromek called Matthews Matthews testified that he tried to call Hromek a number of times, finally reaching him after 1 am on the 21st. He conceded that he lied to Harold Graham on the following day and to a Board agent subsequently in saying that Hromek had called him, with the explanation that, on those two occasions, he had been "pro-union." wheieas he was now "neutral" I was generally unimpressed with Matthews as a witness, but, on this point, I credit his present testimony. He was in the habit of telephoning FIromek at night and, at this time, in my opinion, he could not resist exchanging views on the subject of the day-the Union-with Hromek I find that he made the call 14 The conversation, as here found, is based upon Matthews' and Hromek's testimony and is substantially undisputed Ilioinek first said he did not recollect asking whether anyone was "planted"; subsequently, he denied asking it I must decide which of two less-than-perfect witnesses to believe ; on this point, I disbelieve Matthews less 15 Witli respect to this date, the record is confused. Witnesses Graham and Matthews believed they had seen the advertisement prior to the luncheon union meeting , witness Meinke testified he read it after the meeting In accordance with the stipulation of the parties, based upon their reading from a newspaper at the hearing, I find that the adver- tisement appeared on the 21st 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vacations, Blue Cross, profit sharing plan for sales managers. You will all be contacted. Dues about $60 per year. No signature or further identification was appended. 15. On March 22, Brown and Dworak were discharged. 16. Also on March 22, the Union filed a petition before the Board (Case No. 17-RC-3812), action on which has been suspended. because of the pendency of the instant case. The description of the appropriate bargaining unit therein excludes supervisors but notes that the unit sought consists of seven employees. C. Interference, restraint, and coercion As alleged in the complaint, I find that Respondent, through its supervisor, Reyn- old Hromek, on two occasions on or about March 20, 1962, threatened employees by stating that Respondent would close down before permitting a union to represent its employees ; 16 and, through its supervisor, Reynold Hromek, on three occasions on or about March 20, 1962, interrogated employees as to their activities in con- nection with the Union.17 I further find, as alleged in the complaint, that Respondent, through its super- visor, Reynold Hromek, on or about May 20, 1962, engaged in surveillance of its employees' union activities. As recited in section III, B, supra, item 8, being ap- prised by Harold Graham that he intended to attend a union meeting and see what he could find out "as far as the management end of it is concerned," Hromek told him to "go ahead"; and, subsequently, he asked for and received a report from him on what has occurred. In making this finding, I place no reliance upon Graham's supervisory status; supervisor or no, he was Hromek's authorized agent in this respect. Against the background of the current organizing campaign , I find that the threats of closedown, interrogations, and surveillance, above found, tended to interfere with, restrain, and coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. An amendment to the complaint alleges that the attendance of Harold Graham at a union meeting of itself constitutes engagement in surveillance. Under the cir- cumstances of this case, I cannot agree. Graham was invited to the meeting and attended with full and open knowledge of his status; he was one of two supervisors- out of a total of four employees-to attend the meeting; 18 and he signed an authoriza- tion card and procured the signatures of two others. Without passing upon his eligibility for membership in the Union or for inclusion within an appropriate bargaining unit, I do not believe that his presence at the meeting (other than as an agent for Hromek, as noted above) constituted surveillance.18 I shall recommend dismissal of this allegation?o D. The discharges The complaint alleges that Respondent, on or about March 22, 1962, discharged Richard Brown and Robert Dworak because of their activities on behalf of the Union and in order to discourage membersip in the Union. Respondent concedes that the two were discharged on March 22, but for reasons unconnected with the Union or union considerations: Brown was discharged, it contends, for his poor attitude; Dworak, because he engaged in outside activities. Dworak was discharged first. At 12:15 p.m. on March 22, he was called into Hromek's office. There, beside Hromek, was Ed Hulac. The latter announced that Dworak's employment was being terminated. Dworak asked why, and Hulac said it was because Dworak had attempted to sell shoes to Walter Hronek on the showroom floor. Dworak asked if he was joking; he said he was not. When Dworak asked if Hulac were referring to an incident which had occurred 3 days earlier, Hulac refused to answer. This ended the interview. On the same day, Richard Brown reported for work at 12:25 p.m. He was met by a very agitated Dick Matthews who told him that Dworak had just been fired is See section III, B, supra, items 10 and 13. 17 See section III, B , supra, items 10, 12, and 13. 1s I note that there is no similar allegation respecting Ed Meinke. 19 Howard Aero, Inc., 119 NLRB 1531 , 1534; cf. Guerdon Industries, Inc., 127 NLRB 810. 20 This conclusion is in no wise dependent upon the advertisement in the Omaha World-Herald (see section III, B, supra, item 14 ), which by its wording , invited super- visors to join a union. In the absence of evidence linking the Union with the advertise- ment-the Union disclaims any identification with it-I have given it no significance. SOUTH RAMBLER COMPANY 1203 and that now "they" wanted to talk to Brown. Brown went into Hromek's office. There, Hulac said "Brown, your sales are down this month and you don't appear to be making enough money here; so we are going to have a parting of the ways." It was arranged that he be given his final check as soon as possible, and the interview ended. At the hearing, Respondent, conceding that their sales records played no part in Brown's and Dworak's discharges, gave further details. With respect to Brown, it contended in substance that, originally a "good" sales- man, he had lost his enthusiasm. Assailed by financial difficulties,21 he was unduly preoccupied with ways and means of receiving more money per sale rather than with ways and means of making more sales. He had, among other things, "lost his congeniality." From time to time-for example, when he asked for the advances noted earlier-he threatened to quit. All in all, Respondent-in the persons of Walter Hronek and Ray Hromek-was disenchanted with Brown as a salesman; allegedly, Hromek had considered discharging him since February 3 and Hronek and Hromek had been discussing his possible termination for at least 6 weeks preceding March 22. The reason nothing was done about this, it appears, is that, for one thing, it was felt that Brown needed the job; for another, it was hoped he might "snap out of it"; and, finally, there was no desire to cut down the sales force at this time. The matter came to a head-Respondent's argument continues--on March 19, 1962. On that day, Walter Hronek stopped at the agency to see Hromek. The latter was busy and, while he waited, Hronek had a talk with Ed Meinke and Robert Dworak. Noting that Dworak was wearing a pair of new ripple-sole shoes, Hronek asked how he liked them. Dworak said, "Fine," and Hronek said he also had a pair he liked very much. Hronek asked Meinke why he did not get a pair and expressed the opinion that he himself might buy another pair. Dworak said that he could get 1-1ronek a pair at cost,22 and there was a discussion of the cost. Then Hronek mentioned that he had heard that Dworak was selling books and asked if this were true. Dworak said that it was, adding, in effect, that he would sell anything to make a living. Allegedly, although he contained himself throughout this conversation, Hronek was greatly angered. After the conversation was over (according to Respondent) he told Hromek that "This guy [Dworak] is selling shoes and books and every- thing but automobiles. I want him fired, and while you are at it, get rid of Brown." In other words, it is the contention of Respondent that the decision to discharge Brown and Dworak was made on March 19, at least a full day before the Union entered the picture.23 Effectuation of the decision was delayed until March 22, according to Respondent, because Ray Hromek, who was supposed to effectuate it, (1) did not want to interfere with a "couple of deals" Brown and Dworak were working on, (2) was reluctant to so drastically deplete his sales force following a period of low sales, and (3) kept putting it off because he "didn't cherish the idea of firing people." The discharges were finally effectuated, on March 22, only when, on Walter Hronek's intervention, Ed Hulac himself discharged Brown and Dworak, as related above. The issue is sharply drawn. What was the actual reason for the discharge of Brown and Dworak-the reasons assigned by Respondent or the desire to discourage membership in the Union? As related above, Respondent officials testified that, before they could possibly have become aware of any activities on behalf of the Union, the decision to dis- charge, for the reasons earlier stated, had been made. Since their testimony was not directly controverted-indeed, could not have been since, by its nature, knowl- edge of the matter was within their peculiar possession-it must be examined in the light of all the surrounding circumstances. 21 On February 3, he was given an "advance" of $50 , which was deducted from his pay of February 16. On March 10, he requested and was given an advance of $100 ; on pay- day, March 16, it was renewed The General Counsel urges that the making of these advances should give rise to an inference that (until the Union reared its head) Respond- ent regarded him as a valuable employee . I draw no such inference ; I shall not hold against Respondent its response to a cry of need. On the other hand , I shall not ncsumr, as implicitly urged by Respondent, that financial need impairs a salesman's desire to sell a Dworak has a contact with a wholesale shoe distributor. He has used it, but not for profit The last pair of shoes he procured-for a friend-took place before he was hired by Respondent. 23 Respondent concedes that for some time it had been aware of "union talk" by Brown. 672010-63-vol, 139-77 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To the extent that it is revelatory, the testimony in this record establishes, and I find, that Brown was one of Respondent's leading car salesmen, if not the leading one 24 In January, he earned in commissions at least $100 more than any other salesman; yet, it is contended, consideration was given to discharging him, for his poor attitude as a salesman, as early as February 3 or 8.25 His February sales fell-to 50 percent of his monthly average-but so did those of the entire agency. Although he was spoken to about the drop, so were all others. It is clear, and I find, that Brown had, on occasion, raised the question of a higher or a guaranteed compensation.26 Specifically, I find that he asked for a $400-per-month guarantee 27 on March 8 during his interview with Hronek and Hromek. (See section III, B, supra, item 5.) Far from expressing resentment at that time, they said that they would give consideration to establishing a "shotgun" guarantee.28 Hromek, not without equivocation,29 said he came to the conclusion that Brown should be discharged on February 3. He delayed because Brown "had done a fair job for me, in fact, he had done a good job to start out." The final straw "occurred," he said, on or about March 19. Asked what the final straw was, his answer was, "General attitude." As for Dworak, he was selling books-encyclopedias-when he was hired by Respondent, a fact which he noted on his application for employment. He con- tinued to sell them, on evenings off and on Sundays. He made no secret of this, often telling his fellow workers on Mondays of sales made the preceding day. His supervisor, Meinke, testified that he was aware of the outside activity and that he "took it for granted management knew of it." Hromek testified that, when Dworak was hired, he said he would not continue to sell books, and that he was unaware that Dworak was still selling books until a few days before he was terminated; but Re- spondent's office manager testified that Dworak tried to sell her a set of books late in February or early in March,30 a fact which she communicated to Hromek shortly afterward. On this record, I find that Hromek was aware of Dworak's out- side bookselling activities at all times. With respect to the alleged shoe selling, I find, first, that the conversation of March 19 between Hronek and Dworak-details, supra-did not constitute an at- tempt to sell shoes. I find that Dworak was not in fact engaged in the business of selling shoes, off or on company time and property, and that management had no reason to believe that he was so engaged. Under the circumstances, I find Respondent's assigned reasons for the discharge to lack plausibility, and I reject them. I find that they were not Respondent's true reasons for discharge. Brown had, in the past, "talked union" among the salesmen, a fact known to management. He made no secret of his desire to better salesmen's working con- ditions, in the past and as late as March 8. On or about March 15, he made the first solid contact with a representative of a union. On the 20th, he arranged for and spread word of a union meeting. He attended the meeting and signed an authorization card; and he procured the signature of another salesman to an author- ization card. Dworak, although a comparatively new employee 31 had been vocal in seeking improved working conditions. Unable to attend the union meeting of March 22, he signed a union authorization card immediately thereafter. u Despite Respondent's concession that neither Brown's nor Dworak's sales records played a part in the discharges , I find it necessary to allude to this factor in evaluating Respondent's assigned reasons for discharge. u Six weeks before he was discharged. '6 So had Matthews and Dvorak r< New car salesmen received 30 percent of the gross profit on each car sold If one earned between $200 and $300 in a given month he received $300; if he earned less than $200 or more than $300, he received the actual amount earned 29 I e, a guarantee of $400 during a selected 3 months of the year. 29 Before firmly testifying that it had been his recommendation that Brown and Dworak be discharged, he was asked: "Did he [Hulac] ask for a recommendation by you?" His answer : "Sometimes I am overruled." ° I find, crediting Dworak, that she asked him about the books he sold and that he gave her information and an expression of willingness to serve her when she was ready. I do not regard this incident as an attempt to sell books ; at any rate, no contention is made that the discharge was for selling books on company time or property. 81 He was hired on January 22, 1962. SOUTH RAMBLER COMPANY 1205 Brown was a target of Respondent's unlawful interrogation twice on March 20 (see section III, B, supra, items 10 and 12) and of a threat of discharge in the same day (see section III, B, supra, item 12). Dworak was present at one of the instances of interrogation (section III, B, supra, item 10). Both Brown and Dworak were the objects of discussion as to who was behind the Umon in the 1 a.m. tele- phone conversation on March 21 between Hromek and Matthews (section III, B, supra, item 13) 32 Finally, a postdischarge conversation has significance. On the day Brown and Dworak were discharged, after the discharges took place, Harold Graham asked Hromek if he was cutting the sales force and whether he was next. Hromek answered in the negative, then said he wanted to ask Graham a question. "Do you think Bob Dworak had anything to do with the unions?" After Graham answered- he did not think so-Hromek asked "What about Dick Brown?" Under all the circumstances, I find that Respondent knew or suspected that Brown and Dworak were active on behalf of, if not "planted" by, the Union. Upon the entire record, and on the basis of what I am convinced is a fair pre- ponderance of credible evidence, taking into consideration my rejection of the reasons assigned by Respondent, Respondent's union animus as displayed by its unfair labor practices heretofore found, Respondent's awareness or suspicion of union activities as found by me, and the timing of the events herein, I conclude that Re- spondent's underlying motivation in discharging Richard Brown and Robert Dworak on March 22, 1962, was their activity on behalf of the Union; that, by discharging Brown and Dworak on March 22, 1962, and refusing to reinstate them, Respondent discriminated in regard to hire and tenure of employment; and that, thereby, Re- spondent not only interfered with, restrained, and coerced employees in the ex- ercise of rights guaranteed them in Section 7 of the Act, but discouraged membership in the Union or any other labor organization in violation of Section 8 (a) (1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with its operations described in section I, above, have a close, intimate, and sub- stantial 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 Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondent discriminated with respect to the hire and tenure of employment of Richard Brown and Robert Dworak, I shall recommend that Re- spondent offer them full and complete reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and priv- ileges, and make them whole for any loss of earnings suffered by them because of the discrimination, by payment to each of them of a sum of money equal to the amount he would have earned from the date of his discharge to the date of Re- spondent's offer of reinstatement, less his net earnings during said period. Backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-29433 As the unfair labor practices committed by the Respondent are of a character striking at the roots of employee rights safeguarded by the Act, it will also be 12 1 have fully considered the Implications of the fact that Matthews was the victim of no retaliatory action despite the fact that, up to this telephone conversation at least, he, along with Brown and Dworak, was actively Interested In the Union. Suffice it to say that he lost sympathy with the Union, starting late in this telephone conversation It is bootless to conjecture what might have happened to him, employmentwise, had he not, in this conversation, displayed a willingness to furnish Information about Brown. 23 General Counsel, in his brief, urges that the Recommended Order include an award of interest on backpay. I believe that whether or not interest should be included In backpay awards Is a matter to be decided by the Board as a matter of overall policy To date, no published Board Order has awarded Interest In a situation comparable to this. I shall, therefore, make no provision for interest. 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommended that 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 factual findings and conclusions , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of Richard Brown and Robert Dworak because of their activity on behalf of the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and ( 3) of the Act. 4. By the foregoing conduct, by interrogating employees as to their activities in connection with the Union, by engaging in the surveillance of employees' union activities, and by threatening to close down if the Union 's organizing attempt should be successful , Respondent has interferred with, restrained , and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8 ( a)( 1 ) thereof 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. 6. Except for the above , Respondent has not engaged in unfair labor practices as alleged in the complaint herein. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent , South Rambler Company, Omaha, Nebraska, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Taxi Cab Drivers, Chauffeurs and Helpers, Local No. 762, affiliated with the International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, by discriminating in regard to the hire, tenure, or other conditions of employment of any of its employees. (b) Interrogating employees as to their activities in connection with a labor organization. ( c) Engaging in surveillance of employees' union activities. (d) Threatening to close down if a union's organizing attempt should be successful. (e) In any other manner interfering with, restraining , or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Richard Brown and Robert Dworak immediate and full reinstatement to their former positions even though this may necessitate displacement of incum- bents (or, if their former positions no longer exist , to substantially equivalent positions ), without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings suffered by reason of the dis- crimination against him in the manner set forth in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports , and all other records necessary to analyze the amount of backpay due and the right to reinstatement. (c) Post at its agency at Omaha, Nebraska , copies of the attached notice marked "Appendix." 34 Copies of such notice, to be furnished by the Regional Director for 84 If this Recommended Order is adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice . If the Board' s Order is enforced by a decree of a United States Court of SOUTH RAMBLER COMPANY 1207 the Seventeenth Region, shall , after being duly signed by an authorized representa- tive of Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventeenth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith 35 It is further recommended that the complaint be dismissed insofar as it alleges that Respondent, through its used car manager, Harold Graham, threatened em- ployees, interrogated them, or engaged in surveillance of their union activities. Appeals , the notice will be further amended by the substitution of the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order" for the words "Pursuant to a Decision and Order." ae If this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for the Seventeenth Region, In writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membersip in Taxi Cab Drivers, Chauffeurs and Helpers, Local No. 762, affiliated with the International Brotherhood of Teams- ters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discriminating as to the hire, tenure, or any other term or condition of employment of any of our employees. WE WILL NOT ask employees about their union activities. WE WILL NOT spy on their union activities. WE WILL NOT threaten to close our agency at Omaha, Nebraska, if a union's organizing attempt should be successful. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to organize, to form, join, or assist a labor organization, to bargain collectively through a bargaining agent chosen by themselves, to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any such activities WE WILL offer Richard Brown and Robert Dworak their former or substan- tially equivalent jobs, without prejudice to seniority or other employment rights and privileges, and pay each of them for any loss suffered because of our discrimination against them. SOUTH RAMBLER COMPANY, Employer. Dated------------------- By------------------------------------------- (Repre;entative) (Title) RTOTE.-V,We will notify any of the above-named employees presently serv;ng in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed leorees. Th.s notice must remain posted for 60 consecutive drys from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's :regional Office, 906 Grard Avenue, 1200 ialto 3uilding, ''^ansas City 6, Missouri, Teleolione Number, Balti- more 1-7000, Extention 731, if they have any question concerning this notice or compliance with its provisions.