Blumel Ignition Co.

BLUMEL IGNITION CO. 1019 of your family-best for the peace and welfare of yourself and of those who are dependent on you. This matter is a personal matter with me , for if you vote for the Union at Lester Brothers it means you are voting against me. You would actually be voting for Hutchinson & Stewart in preference to voting for James Shockley and Lawson Lester. I can not believe this is what you really want. By all means vote in this election tomorrow! Blumel Ignition Co. and International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local 436. Case No. 8-CA-2977. June 10, 1963 DECISION AND ORDER On April 10, 1963, Trial Examiner Arthur E. Reyman 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 Inter- mediate Report. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in this case, including the excep- tions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted below. ORDER The Board adopts as its Order the Trial Examiner's Recommended Order, with the modification noted below.' IInterest at the rate of 6 percent per annum shall be added to the backpay of Leslie Smith, to be computed in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716. For the reasons set forth in the dissenting opinion in Isis, Member Rodgers would not award interest. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C., Section 151, et seq ., herein called the Act. The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 436, herein sometimes called Local 436 or the Union,' I The name of the Union was amended at the hearing to be Excavating , Building Mate- rial Construction Drivers and Race Track Employees Local 436 , affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America. 142 NLRB No. 109. 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on November 19, 1962 , filed a charge pursuant to this section of the Act against Blumel Ignition Co., herein sometimes called the Company or the Respondent , assert- ing that the Respondent has engaged in, and is engaging in, certain unfair labor practices affecting commerce as set forth and defined in the Act. Thereafter, on December 28, 1962, the General Counsel of the National Labor Relations Board, on behalf of the Board, by the Regional Director for the Eighth Region , issued a com- plaint and notice of hearing , the complaint alleging that the Respondent during the times material herein has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act, in material respects, herein- after specifically mentioned. The Respondent thereafter filed timely answer to the allegations of the complaint , effectively denying the substantive violations of the Act therein alleged and setting up certain affirmative defenses. On the issues as framed by the complaint and the answer thereto, and pursuant to notice, this matter came on to be heard before Trial Examiner Arthur E. Reyman at Cleveland, Ohio, on January 16, 1963, and was closed on the following day. At the hearing, the General Counsel and the Respondent were represented by counsel and each was afforded opportunity to call, examine and cross -examine witnesses, and to participate fully, to argue orally upon the record , and to submit proposed findings or conclusions, or both. A brief filed on behalf of the Respondent has been carefully considered. Upon the entire record in the case and from my observation of the witnesses, I mako the following: FINDINGS OF FACT 1. THE BUSINESS OF BLUMEL IGNITION CO., THE RESPONDENT HEREIN The Respondent is now and has been at all times material herein a corporation duly organized under and existing by the virtue of the laws of the State of Ohio; during such times it has maintained its office and place of business in Cleveland, Ohio, where it primarily is engaged in the business of selling auto parts to, and servicing auto parts for, both private and commercial accounts. Annually, in the course and conduct of its business , the Respondent purchases goods, materials, and supplies valued in excess of $50,000 from points located directly outside the State of Ohio. The Respondent is now, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party herein, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 436, is now, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The pleadings The essential allegations of the complaint , in respect to violations of Section 8(a) (1) and (3) of the Act are substantially as follows: That since on or about November 13, 1962, and thereafter the Respondent has violated Section 7 of the Act by or through its officers, agents, and representatives, and more particularly Albert Barbosky by (1) interrogating its employees concern- ing their union membership , activities , sympathies, and support; (2) threatening to discharge the employees responsible for organizing the Union; (3) threatening its employees with closing the service department "if the union were successful"; (4) promising its employees economic benefits if they refrained from becoming or re- maining members of the Union ; and (5) granting reduced work hours if the em- ployees did not join the Union. Further, it is said in the complaint that the Respond- ent through its officers, agents, and representatives, and more particularly Harry M. Bare, threatened employees that the Respondent would go out of business if the Union were successful in its organizing drive; and through its officers , agents, and representatives, more particularly Kenneth Blumel, threatened its employees with layoffs, discharge, selling the business , shutting down the business, and other economic reprisals if the Union were successful. The complaint alleges further that on or about November 19, 1962, the Respondent laid off one employee, Leslie Smith, and at all times since that date has failed and refused and continues to fail and refuse, to recall said employee to his former or substantially equivalent position of employment for the reason that he had, or the Respondent believed he had, joined , assisted, or favored BLUMEL IGNITION CO. 1021 the Union, or engaged in other concerted activities for the purposes of collective bargaining and other mutual aid or protection. As noted above, the Respondent has denied any violation of the Act as set forth in the complaint. For affirmative defenses it is stated in the answer that the statements and acts referred to as threats were no more than interpretations , evaluations, and opinions of the officers of the Respondent and that the statements set forth in the complaint are nothing more than conclusions and charges not based upon the facts in the case. The complaint admits the layoff of Leslie Smith on the date alleged in the complaint; however, the Respondent denies that Smith asked for reemployment following his layoff and therefore the alleged refusal to reemploy him must be denied; that al- though the Respondent does admit that it has not recalled Smith , the Respondent does not anticipate Smith's recall until justified by necessary volume of work. (Smith was recalled to work subsequent to the filing of the answer.) The Respondent in its answer specifically denies any knowledge of union activities of Smith or any interest, if any, of his in the Union. The Respondent further in its answer says that certain of the allegations of the complaint represent nothing but conclusions resting upon the statements, reports, and circumstances which are subject to erroneous inter- pretation. Further, insofar as the layoff of Smith was concerned, the Respondent says that the layoff was motivated entirely and solely by the economics of good busi- ness management and that the volume of work in the department where he worked had been currently dispatched by the two employees remaining after his layoff; that since the layoff of Smith , Respondent has hired no other person in his department or in any other department and presently intends to offer employment to Smith when there is need for an additional employee in the "Detached Unit Room," where Smith previously had worked ; the Respondent denies that it in any manner discriminated against Smith or any other employee and submits further by way of its answer that the recall of Leslie Smith at any time since his layoff would have resulted in the employment of "unnecessary personnel contrary to the policies of the Act." As another affirmative defense contained in the answer of the Respondent it is said: Respondent further answers by alleging that at the time the Charging Union filed its "Petition for Certification" on November 16, 1962, Respondent was not knowledgable of any union interest or activity within the proposed unit; and if Leslie Smith was a union member or advocate at that time, or at the time of his layoff, Respondent did not have any knowledge of it. B. Union organization efforts On or about October 19, 1962, Vance Price, business representative of Local 436, was approached by one of the employees of Blumel Ignition Company at his office and discussed the question of union organization with this employee and Frank Colomba, another business representative of Local 436. The employee, Henry Van Dame, Jr., responded to questions asked of him and was furnished with certain blank cards for application in the Local with instructions not to have anyone sign those cards until it was determined how many employees in the shop wanted to join the Union. Later in the week Price received a telephone call from the employee who informed him that some of the employees wanted to join the Union. Whereupon Price instructed the employee to obtain signatures to the cards and set up a meeting for October 26. The meeting was held on that day and other meetings were held on November 9 and 14, 1962. According to Price, after he had received the signed applications he and Colomba called at the Company's offices and talked to Harry Bare, sales manager, and at that time executive vice president of the Company. Price places the date of this meeting, and on the whole record it seems to be correct, as being November 16. At the meeting Bare was asked whether or not the Company would recognize the Union for bargaining purposes and was informed that if he would not agree to do so the Union would "go to the labor board"; that Bare's answer was "go to the labor board." On that day a petition for representation was filed by the Union with the Regional Director of the National Labor Relations Board for the Eighth Region, Case No. 8-RC-4959.2 Henry Van Dame, Jr., employed as a truckdriver, testified that Smith had ap- proached him and other employees on the subject of joining the Union; that he ex- pressed interest, called at the union office and picked up blank application cards which There is testimony in the record to the effect that sometime during the year 1961 the employees had discussed unionization among themselves and had talked to a representa- tive of the Machinists Union, who told them that he did not have jurisdiction There is no evidence in this record that the Employer had any knowledge of that occurrence. 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he gave to Smith, who in turn distributed them to the men, and that Smith returned signed application cards to him which he in turn returned to the union representative at the union hall. He said he obtained the cards from the union hall on the 19th or 20th of October and returned them either on the 23d, 24th, or 25th day of that month. Leslie Smith is employed as a mechanic, first being hired as an employee in the detached unit shop in October 1961 , thereafter being transferred to the service department and then transferred to the service department as a mechanic. Smith was laid off, ostensibly for lack of work, in November 1962, and was recalled to work to his last position on or about January 8, 1963. According to Smith, in about the middle of the month of October 1962, he became aware that an organizational cam- paign concerning the Union was going on and he promoted the idea among the em- ployees of the shop. He said he discussed it with them and pointed out the advantages of having a union, informed them of meetings to be held by the Union on October 26, and November 9 and 16, attended the meetings and signed the union application card, which he had received from Van Dame, Junior, passed out five or six other blank cards for signatures to other employees in the service department , all of which was returned to him and all of which he gave to Van Dame to return to the Union. Apparently he had a number of conversations with employees in the shop concerning the advisability of joining the Union. The answer of the Respondent concedes that Harry M. Bare and Kenneth Blumel were and are agents of the Respondent acting on its behalf and are supervisors within the meaning of Section 2(11) of the Act. However, Respondent denies that Albert Barbosky, described as service manager, is or was a supervisor within the meaning of that section of the Act. Considerable testimony was taken to show the duties and responsibilities of Barbosky and on the basis thereof, I believe and find that he is and was a supervisor according to the criteria set forth in Section 2(11).3 C. Company management Anthony Blumel, president of the Company, is its active executive officer. He became ill in December 1961 , and some weeks later took leave to recuperate in Florida. In April 1962, Harry M. Bare was made executive vice president and as- sumed the duties formerly performed by Anthony Blumel and at the same time con- tinued on as sales manager for the Company. In response to a question as to the "chain of command" at the Company, Vice President Bare testified: Well, I am still filling the capacity of sales manager of the place, so as a result I am out quite frequently, and I have what I more or less refer to as heads of the various departments. Each one of the sections of the Company falls into a category. For instance, George Krauslick in the parts department, Al Barbosky in the service department, that's the drive-in shop, Kenny Blumel in the detached unit shop. Now, from that I gather my information each morning. . . . directly they [truckdrivers] are managed by George Krauslick, through George Taylor who is more or less like a foreman in the shipping department. He is the one that decides where the trucks will go each day. Kenneth Blumel, the son of Anthony, is also a vice president of the Company as well as being foreman of the detached unit shop. No question has been raised regarding his capacity as a supervisor , nor has any question been raised concern- ing that situation as it concerns Bare. However, it has been denied by the Re- spondent that Barbosky is a supervisor within the meaning of the Act and consid- erable testimony therefore was adduced through witnesses called by the General Counsel to show what Barbosky's duties actually are and were during material times. Barbosky, as head of the service department, assigns work to the men under his supervision. When a car is driven in by a customer for repairs, Barbosky is the one who attempts to discern the trouble and then eventually assigns the work and supervises the work to see that it is performed satisfactorily. He on occasion has recommended the hiring of a mechanic and it is freely conceded that he has the right to recommend hiring and firing. While it is true that he does do some work himself on automobiles brought in for repair, it is clear enough that the greater part of his time is devoted to supervisory duties rather than to manual work of the nature done by the mechanics under his supervision. I have no difficulty in finding that Barbosky is a supervisor within the meaning of the Act. 2 Barbosky did not testify at the hearing BLUMEL IGNITION CO. 1023 D. The meetings of November 14 According to the testimony of employee Roland Centa, it was not unusual for Barbosky, at times, to call the men in the parts department together to discuss various matters with them concerning their work and having to do with labor costs or charges and similar matters. On November 13 or 14, probably November 14, there were two meetings held, dissimilar from the meetings usually called by Barbosky in connection with shop matters. The first meeting was called for about 8:30 in the morning. Bare, Kenneth Blumel, and Al Barbosky were present, as were the mechanics and other shop em- ployees. At this meeting, according to Centa and other employees who testified who were present at this meeting, and whose testimony coincides in material re- spects, Bare spoke and said, among other things, that Blumel Ignition was one big happy family, a lot of employees had been there for many years, that he had heard rumors of a union and that he did not think that Mr. Blumel would go along with it; that they were a small business, that they had stiff competition from other com- panies in the same line of work, and that the Company did not make money as some of the employees assumed it did. According to Centa, and other witnesses, Bare said if anyone was unhappy with their job, they were free to leave. Centa also said that at this meeting Bare had informed the employees that Blumel was sick, that he was in Florida, and he thought "he would close the doors" if he heard anything about the formation of a union. Concerning the remarks of Bare to the employees at the morning meeting, Lawrence Bettis testified sub- stantially the same as Centa. He said that Bare stated that during he past 5 or 8 months the Company had been operating in the red; that this was the first time that this had happened in the past 5 or 8 years; that Bare said that the employees of the Company had been working together for a long time and it was one family, and he hated to see them broken up now; that "this Company could not operate as a large company does with the Union"; that if anyone was unhappy with their employment they should feel free to seek employment elsewhere; that due to the owner's recent illness, he had "lost a lot of eagerness toward the business"; that he would possibly like to extend vacations and improve conditions but that if the Company should undergo any drastic change in overhead or operating costs, the Company might be forced out of business. The testimony of George Van Santen was substantially the same as that of Bettis in the following respect: Well, he [Bare] started to say how the Company had been operating in the red for about 6 or 7 months of 1962, and that the boss was in Florida now for his health, he hadn't been feeling very good, he felt like selling out sometimes. He spoke that the Company was pretty small to handle the Union and he thought if conditions got better, we might have longer vacations. According to Henry Van Dame, Jr., Bare said that the Company couldn't afford to pay any money; that at the time they were operating in the red, and if they had to increase costs they would have to either close the doors or "close the doors in the back of the shop"; that Blumel was keeping Blumel Ignition only for the sake of his faithful employees and that he said that he would try in the future to get a little longer vacation. Regarding Bare's remarks on this particular morning, Leslie Smith testified substantially as the other above-named employees. He said that Bare remarked that Blumel Ignition was too small a company to support a union; that a union would not work out in the type of business like this, that a union was more suited for a type of business like a factory with more employees; that Bare said Albert Blumel's health was bad and that if a union came in there, Mr. Blumel would probably want to sell out or go out of business, "close the business in some way"; that the Company, as time went by would try to improve the conditions there, that is, try to have longer vacations and "that sort of thing"; that the Company was losing money and could not afford to have any increase in fixed costs, such as increased payroll costs; that the Company was losing money and might close "if there was a union coming in there." Bare, from the witness stand, denied having ever made any threates or doing anything attributable to antiunion activity on his part. In connection with his speech or talk to the employees on the morning of November 13 or 14 (which- ever it may have been) he explained that it was not unusual even when Mr. Blumel was on duty that approximately every 6 months he called the employees together to bring them more or less up to date as to the progress of the Com- pany-"I would rather give it to them straight from the beginning and it cuts down an awful lot of conversation." He asserted he was always very careful not to 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD infringe on any employee rights. As to the meeting under discussion, he said that he first informed the employees that he was in charge of the Company in the absence of President Blumel: I explained to them about the two new programs that had been incorporated this year in two of the major factories that we do business with, how it had dropped our gross considerably, and as a result we hadn't as yet balanced our way of doing business to the new short profit that we had not been used to. One other thing that I did forget to tell you is this: I told them at the time that taking these things into consideration, at this time the Company could not withstand any increases of pay throughout any department. Vice President Bare denied knowing that Leslie Smith had anything to do with the Union or of union activity at the shop of the Respondent at the time he was laid off; that the first knowledge he had of union activity was when he received a letter from the Union charging the unfair labor practice and his conversation with Business Agents Price and Colomba on or about November 16. His testimony confirms that of Price-that upon their request to talk to the employees he informed them to take the matter up with the National Labor Relations Board.4 Lawrence Bettis also testified concerning the talk given to the assembled employees by Barbosky in late afternoon of the same day that Bare had spoken to the em- ployees in the morning. His testimony, corroborated by other employees whose names are mentioned above, was to the following effect: Mr. Barbosky stated that he heard talk of a union being formed He asked each individual person if they wanted a union, and everyone answered no. He asked the general question if anyone knew what would happen if the union would be formed and no one answered that. He went on to say that we have a right to vote for a union, but if we do the doors would be locked. He stated that if he caught or overhead anyone or any group of persons talking about the union, they would immediately be fired. He went on to say the Company is not large enough to support a union. He also said that if anyone isn't happy with their jobs, they should feel free to look elsewhere for employment I believe he gave us an example when the union was formed at the Nook O'Neil Company and that service department is now closed .... He said some of the employees had been working there for about 11 or 18 years without being once laid off .... He said that Mr. Blumel was ill recently, and he wouldn't be sur- prised if he sold the business tomorrow. At this afternoon meeting, Roland Centa recalled that Barbosky spoke for about 10 or 15 minutes to the employees in the service department, and said that he had been with the Company for many years and that he did not want to lose his job; that he said that a lot of employees he understood wanted to bring in a union and he pointed to them and asked them if they wanted a union. According to Centa no one answered "Yes" or "No" to the question; he said that Barbosky said that he did not think Blumel would go along with the Union, that he would probably close the doors and that he, Barbosky, had permission from the front office to fire anybody that talked about the Union. According to Centa, Barbosky said that the service department probably would be closed "if the Union got in." Van Santen recalled that Barbosky said that if anybody was caught talking about a union they would get fired on the spot, no matter how long they worked there. The recollection of Leslie Smith as to this meeting, at which Kenneth Blumel was present, was to the effect that Barbosky asked each employee directly whether he was in favor of a union and to answer yes or no; that a few of the men said "No" but most of them evaded the question and said they did not know; that Barbosky said, according to Smith: that he felt that the working conditions were already good, and he felt that we were making good wages and there wasn't any need for a union there. I believe he used as an example one other company, I think it was the Cleveland Ignition Company, I am not sure. He mentioned the name of this company where a union had tried to unionize the place and he said that the service de- partment was closed down when the union tried to come in there. There is contained, within this record, no substantial contradiction of what Bare said at the morning meeting or what Barbosky said at the afternoon meeting. Al- though Vice President Bare denied any intention of prejudicial action against union organization, the fact remains that with regard to the timeliness of the morning meet- ing when he addressed the employees concerning the financial condition of the Com- + Smith, as noted above, was laid off on November 19. BLUMEL IGNITION CO. 1025 pany and its inability to grant wages although perhaps extend the vacation plan, that the impact of his talk was such as to give great support to an inference of com- pany hostility toward the Union when taken in connection with the remarks Bar- bosky made on the afternoon of the same day. This, it seems to me holds true even though there is testimony, uncontradicted, to the effect that management from time to time did hold meetings with employees to discuss shop conditions or pending grievances. E The layoff of Leslie Smith Leslie Smith was employed by the Respondent in the month of October 1961, where he worked in the service department for about 2 months. Thereafter he was transferred to the detached unit shop .5 When first employed he talked to President Blumel who, he said, emphasized that the Respondent Company had never had a history of layoffs; if work was slow they would just keep the man right there. Smith was laid off from work in the detached unit department on or about November 19, 1962, and, as noted above, was recalled to work on about January 8, 1963. During the time he was employed in the service department up until the last time he was employed in the detached unit department he was subject to the orders of Barbosky. Smith testified that during the middle of the month of October 1962, it came to his attention that an organizational campaign was going on at the shop; that he promoted the idea among the employees, discussed it with them and pointed out the advantages of having a union in the shop; that he attended union meetings on November 2 and 9 and the third meeting on about November 16. He said that he had talked to other employees, informed them that meetings were being held and requested them to attend the meetings; that he signed an application card for membership in the Union on or about October 24 and that he, with Van Dame, distributed and obtained sig- natures to other cards from other employees in the service department. According to him he was active in talking to other employees in favor of the Union. In regard to the circumstances of the afternoon of November 16, he related a conversation he had between himself, Bettis, and Ed Trudler in the detached unit shop as follows: Well, Trudler and I were more or less arguing about the Union, Bettis didn't say too much, he was more or less listening, and Trudler was against the idea of a union. He said on many occasions then and previous that he was against it in everything. Well, we were arguing and I was trying to point out the bene- fits to him, I was trying to point out-well, I was trying to point out the Life Insurance Policy, Welfare Benefits, Hospitalization, longer vacations than we were getting etc., and I was arguing back and forth with him about these advantages. This discussion apparently took place in the detached unit room next to a room usual- ly occupied by the president of the Company, who at that time, as pointed out by counsel for the Respondent in brief, was in Florida. It is the contention of the General Counsel that his conversation was overheard, either by Kenneth Blumel or Al Barbosky. At the end of work on that day, Smith was notified by Kenneth Blumel that he was being laid off for lack of work.6 The Respondent emphatically asserts that the layoff of Smith was occasioned only because of the economic situation existing at the time. The Company asserts that the work done in its shop in regard to the repair of automobiles is seasonal; the testimony also reflects that the busiest seasons are in the fall when owners are pre- paring their automobiles for winter use or in the spring when they are being looked over for spring and summer use. Certain figures were introduced to show the falling off of business of the Respondent, particularly in the service and detached unit depart- ments, at the time Smith was laid off. The evidence presented is far from conclusive. It is said that there were two other layoffs in the year 1962 (times not shown); it was also shown that one man was put at work cleaning up the basement at a time when work was slack and that, according to Smith, at the time he was hired the president of the Company told him that the Company had had few if any layoffs. On the whole record, I discount the contention that Smith was laid off in November for eco- nomic necessity. According to Bare, in a conference he had with President Blumel s The service department, headed by Barbosky takes care of automobiles driven in for repair; Kenneth Blumel, foreman of the detached unit department, takes care of repairs on parts of cars necessary to be detached from the automobile for repair work to be done. In regard to the Employer's knowledge of the import of this discussion between Smith, Trudler, and Bettis, on the basis of the testimony of Bettis it reasonably can be inferred that the conversation was overheard (even though there was a wall between the inven- tory office or the office occupied by the president) by McKay, the inventerv clerk, or Kenneth Blumel. 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the end of the year 1961 , it was determined that if a department was not busy they would be able to take an employee from there and lay him off for a week or two at a time or whatever time was necessary which might help the profit picture for the year, that that was true in the case of Leslie Smith . Employees in the parts and de- tached unit repair departments are paid on a gauranteed salary-plus commission basis. It appears clearly from the record that most of the employees maintained about the same standard of earnings and that Smith was not unusual in any respect comparatively in regard to his earnings as compared to those of other mechanics employed by the Respondent . The partial statistical situation of the Company, shown by chart method and not by dollar volume , does not prove that the Company was in particular financial stress at the time Smith was laid off. The whole sum and substance of the Company 's claim of economic difficulty lies in the statements made by Vice President Bare which are completely unsupported insofar as vital statistics are concerned. I have placed no credence upon the claim of the Company that the layoff of Smith would make any difference in the comparative profit and loss condi- tion of the Company between the period of November 1961 , and January 8, 1962. F. Miscellaneous company activities The General Counsel brought forth uncontradicted testimony to the effect that after the organizational efforts of the Union came to the attention of the Respondent, the Saturday workday was shortened by closing the shop at 12 o'clock noon instead of 1 o'clock as had been the previous custom. Apparently this made no essential difference in the earnings of the employees except one or two who were hourly rated and not on a guarantee , however, the action was taken voluntarily by the Company in an apparent effort to placate some of the employees in regard to the extra hour's work on Saturday morning. I place no particular weight, in regard to the whole case, on this circumstance President Blumel returned to duty on January 9, 1963 , and, according to the Respondent, upon discovery of the charges and allegations against it asserted by the Union, prepared and plainly posted a suitable bulletin on the premises, which totally disavowed any possible inference or suggestion of threats or promises ; that this open letter bulletin was read and understood by employees , thus serving its intended pur- pose. The bulletin , it is said , also made clear that Albert Barbosky did not have super- visory status , that the Company, during its 40 years of existence , had been completely directed by Anthony Blumel and that the actual power to exert supervisory authority was at all times withheld from everyone in the organization except Harry Bare and in Bare's case only during the several months of Blumel 's absence for sickness. Mr Blumel may have acted in good faith when he posted the notice-however, insofar as interference with the concerted activities of employees was concerned , the damage had already occurred through the statements of Bare, Kenneth Blumel , and par- ticularly those of Barbosky When Vice President Bare, in the absence of President Blumel , was dealing with the Union , he would be presumed to have known of the rights of the employees to organize. I find that Barbosky was in a position as a supervisor to be charged with re- sponsibility of the Company for the use of threatening langauge and that his remarks were not effectively expunged and disavowed by the mere posting of a notice by the president of the Company on January 9, 1963; I find further that the remarks made by Barbosky were not his own personal remarks but were made by him in the official course of his duties as a supervisor of the Respondent in a responsible position. The Respondent seems to rely upon Section 8(c) in arguing that it is permissible under that section to predict what might happen if employees through concerted activity designate a union as their representative for the purposes of collective bar- gaining, particularly as to whether the plant might be closed or departments of a shop might be closed because of demands possibly to be made by the union representative. In my view Section 8(c) of the Act has no applicability to the facts disclosed by the record in this case. Concluding Findings As mentioned above Price and Colomba, the business representatives of the Union, called upon Bare on November 16 to inform him that the Union had been selected as representative of the employees in the service department , the detached unit shop and other parts of the shop , at which time Bare told him to take their claim to the Board Union meetings had been held on October 26, and November 9 and 14. Again, as noted above, Bare and Barbosky spoke to the employees involved in the unit for organizational purposes on either November 13 or 14. I find November 14 to be the probable date. Signatures to authorization cards or membership cards des- BLUMEL IGNITION CO. 1027 ignated the Union as representative of the employees had been secured at meetings of employees prior to November 13 or 14. Smith was laid off on November 19. Thus, during a comparatively short period of time, matters affecting the organization of employees obviously had come to the attention of management. The mere fact that Barbosky, on the afternoon meeting of November 14, threatened employees with loss of jobs if he heard about their interest in the Union , is sufficient to me to allow an inference, not rebutted by the evidence herein, that management was well aware of the interest of some if not all of its employees in the union movement. In the morning Bare spoke to most of the employees in which he himself said he outlined financial situation of the Company ; indicated a hope for better working conditions including longer vacations , mentioned the possible closing of the shop or the selling of the business if overhead costs were increased . At the aftrenoon meeting, Barbosky was no so indirect since he, according to the uncontradicted testimony on the record herein, stated that the Employer might close the shop if the Union came in and, further, if he heard anyone talking in favor of the Union he would see that that em- ployee would be discharged. Respondent contends in argument that Kenneth Blumel was merely expressing what he though his father might do in the event a union was successful in organizing the shop. Kenneth Blumel was a responsible officer of the corporation and a foreman and certainly had no right to make such statements without being accused of or being found guilty of interference or coercion respecting the rights of employees to engage in concerted activities . The tossing of the gratuity of a shorter Saturday, together with a promise of better vacation privileges , together with the assurance that there would be a serious question as to whether the shop would remain open if there was an increase granted in wages, lends substance to the contention of the General Counsel that, except for the union activity within the shop, such promises or threats would not have been made. In my opinion , Bare, Barbosky , and Ken- neth Blumel, as responsible officials of management , deliberately interfered with the right of the employees to engage in concerted activity according to the right accorded to them under Section 7 of the Act . Further, I believe that Section 8(c) was not intended ever to apply to such a situation as here exists. Further, I believe and find that Smith was regarded as a leader in the union movement and as such became the victim of retaliation by layoff at a time when there was no real economic necessity for the Company to lay off any person in order to continue in business . The business of the Respondent is a substantial one and not marginal in nature . So far as Leslie Smith is concerned, his work apparently was at all times satisfactory-certainly there is no evidence of any complaint regarding the nature of his work . Although the Respondent argues in his brief filed on its behalf that seniority was taken into account when Smith was laid off, there is no evidence or proof anywhere that seniority had ever been observed in connection with layoffs. Here there is a background of interference , restraint, and coercion, consisting of interrogation and threats of reprisal made by Barbosky and to a lesser extent by Bare and Kenneth Blumel which , taken in whole part, are violative of Section 8(a)(1) of the Act. I so find. I believe on the evidence herein that the Respondent had knowledge of Smith's activities on behalf of the Union and that his layoff, occurring at the time it did, shows that he was laid off because of his union activities . I therefore find that Smith was discriminated against in violation of Section 8(a)(3) because of his known interest in, and activities on behalf of , the Union . It is well established by Board and court precedent that motivation on the part of the Employer may be occasioned by knowl- edge inferred from all of the facts as they exist within a comparatively short and proven time . The Radio Officers Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company ) v. N.L.R.B., 347 U.S. 17; Pyne Moulding Corporation, 110 NLRB 1700. Therefore, on the preponderance of the evidence in this case , I find that the allegations of the complaint have been sustained and that the Respondent has engaged in and is engaging in unfair labor practices in contravention of Section 8(a) (a)( I) and (3) 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 con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. 712-548-64-vol. 142-66 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has engaged in interrogation of employees concerning the Union, and has interferred with, restrained, and coerced its employees in derogation of their rights secured by Section 7 of the Act, I shall recommend that it cease and desist therefrom. Having found that the Respondent on November 19, 1962, discriminatorily laid off employee Leslie Smith but has since reinstated the said Smith to his former or substantially equivalent position, I shall recommend that the Respondent be ordered to make him whole for any loss of pay he may have suffered because of the discrimina- tion against him by payment of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination to the date of his reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth, 90 NLRB 289. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. 1 shall there- fore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Excavating, Building Material Construction Drivers and Race Track Employees Local 436, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 3. By discriminating with respect to the tenure of employment of Leslie Smith, thereby discouraging the free exercise of the rights guaranteed by Section 7 of the Act and discouraging membership in and activities for the above-named labor orga- nization, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that Blumel Ignition Co., the Respondent herein, an Ohio corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees about their union activities in a manner con- stituting interference, restraint, and coercion in violation of Section 8(a)(1) of the Act, and threatening its employees with reprisals because of their union activities. (b) Discharging, laying off, or otherwise discriminating in respect to the hire and tenure of Leslie Smith or any other employee for the purpose of discouraging mem- bership in Excavating, Building Material Construction Drivers and Race Track Em- ployees Local 436, or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights as guaranteed by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Immediately make Leslie Smith whole for any loss be may have suffered because of the discrimination against him by payment of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimina- tion against him to the date of his reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth, 90 NLRB 289. (b) Preserve and, upon request, make available to the Board all records needed to analyze and compute the amount of backpay under the terms of this Recom- mended Order. BLUMEL IGNITION CO. 1029 (c) Post at its Cleveland, Ohio, plant and place of business, copies of the attached notice hereto marked "Appendix." 7 Copies of the notice shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained 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 said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director for the Eighth Region, in writing, within 20 days from date hereof in this Intermediate Report and Recommend Order, what steps it has taken to comply herewith.8 7In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 6In the event that this Recommended Order be adopted by the Board this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT interrogate our employees about their union activities in vio- lation of the law. WE WILL NOT threaten our employees with reprisals because of their union activities. WE WILL NOT discourage membership in Excavating, Building Material Driv- ers and Race Track Employees, Local 436, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging or refusing to reinstate any of our employees, or in any manner discriminating in regard to their hire or tenure of employment. WE WILL make Leslie Smith whole for loss of pay suffered as a result of the discrimination against him. WE WILL NOT in any other manner interfere with, restrain, or coerce employ- ees in the exercise of the right of self-organization, to form labor organiza- tions, to join or assist Excavating, Building Material Drivers and Race Track Employees, Local 436, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organi- zation, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for their mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as guaranteed in Section 7 thereof. BLUMEL IGNITION CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days 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, 720 Bulk- ley Building, 1501 Euclid Avenue, Cleveland 15, Ohio, 44115, Telephone No. Main 1-4465, if they have any question concerning this notice or compliance with its provisions.