Covington Motor Co, Inc.

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Covington Motor Company, Inc. and United Papermakers and Paperworkers,- AFL-CIO. Case No. 5-CA-2444. February 18, 1964 DECISION AND ORDER On November 20, 1963, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices, within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set'fo'rth in the attached Trial Examiner's- Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. 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 Leedom, 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 rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. The Board adopts as its Order the Recommended Order of the Trial Examiner.' I The Recommended Order is hereby amended by substituting for the first paragraph therein, the following paragraph: Upon the entire record in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that Respondent, Covington. Motor Company , Inc., its officers, agents, successors, and assigns, shall: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and an amended charge filed on May 6 and 27, 1963, by United Papermakers and Paperworkers , AFL-CIO, herein called Papermakers or Union, the General Counsel of the National Labor Relations Board , by the Regional Director for the Fifth Region ( Baltimore, Maryland ), issued his complaint, dated June 27, 1963 , against Covington Motor Company , Inc., herein called the Re- spondent or the Company.. With respect to.the unfair labor practices , the- com-plaint sets forth the specific respects in which it is alleged that the Respondent engaged in unfair labor practices within the meaning of Section 8 ( a) (1) and (3) of the National Labor Relations Act, as amended , herein called the Act. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations but denied all allegations that it had committed any unfair labor practices. Pursuant to due notice, a bearing was held before Trial Examiner Robert E. Mullin at Covington , Virginia, on September 25, 1963 . All parties appeared at the hearing and were given full opportunity to examine and cross -examine witnesses, to introduce relevant evidence , to argue orally before the close of the hearing, and to file briefs. The parties waived oral argument . A motion , to dismiss, made by the Respondent at the close of the hearing , is disposed of as appears hereinafter in this Decision . Subsequent to the hearing, on October 21, 1963, a brief was received from the - General Counsel which has been fully considered. 146 NLRB No. 4. COVINGTON MOTOR COMPANY, INC. 33 FINDINGS OF FACT . 1. THE BUSINESS OF THE RESPONDENT' The Respondent Company, a Virginia corporation,, is engaged in the sale of automobiles, automotive parts and accessories, and the operation of automotive repair facilities at its place of business in Covington, Virginia. In the course and conduct of its business operations, during a representative 12-month period, the Respondent's gross sales exceeded $500,000, its purchases of goods, materials, and products exceeded $250,000, and of this latter amount over $50,000 was purchased directly from points and places located outside the Commonwealth of Virginia. Upon-the foregoing facts, the Respondent concedes, and the Trial Examiner finds, that Covington Motor Company, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED- The complaint alleges, the answer concedes, and the Trial Examiner finds, that United Papermakers and Paperworkers, AFL-CIO, is a labor organization- within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; the issues Late in March 1963, the Union initiated an organizational campaign among the employees of the Respondent's garage. Thereafter, Robert K. Poage and Harry R. Wolfe, two employees, were discharged on March 27 and April 9, 1963, respectively. The General Counsel alleges that these dismissals were discrimina- tory and for the purpose of thwarting the organizational efforts of the Union. This is denied by the Respondent, according to whom. the discharges were solely for cause and totally unrelated to the union campaign. B. The evidence as to the alleged violations of Section (8a)(3) and (1); findings and conclusions with respect' thereto On March 26,- 1963, the Papermakers wrote to the Respondent Company, as well as to five other automobile dealers in Covington, Virginia, to announce that the Union had embarked on a campaign to organize the employees of all garages in the area. The letter stated that the Union presumed that all the employers would react to this announcement as gentlemen and concluded with a caution that none of them should attempt any discriminatory treatment designed to thwart the em- ployees from securing a union of their choice. The letter was signed by Harry E. Scott, vice president and regional director of the Charging Party. On March 29, Scott wrote a second time to the same automobile dealers. • In this letter he reiterated the Union's confidence that it would soon be the designated bargaining agent for their employees and that it would then be in a position to demand recognition. Scott suggested that when that moment arrived the employers should cooperate with the Union in arranging for a conference at which there could be an amicable settlement of the question of majority and all. other unit matters, so that it would be unnecessary to invoke the representation procedures of the Na- tional Labor Relations Board. On April 2, Scott wrote another letter to the same six garages. In this he announced that the Union then represented a majority of' the employees in the service department of each dealer, and that it was requesting immediate recognition as the bargaining agent of such employees in a multi- employer unit made up of all the garages in Covington. Scott proposed that in the event any employer questioned the Union's majority status the matter could be resolved by a card check conducted by some impartial local person so that it 'would be unnecessary to utilize the Board to establish a claim for recognition. In a letter dated April 5, the Respondent Company made its first reply to the union correspondence. The Respondent rejected therein the Charging Party's .claim to majority representation of its employees and stated that the owners could not envisage any way in which the Papermakers could offer any assistance to the employees or the' employer in the 'operation of an automobile business. The letter described the Union's multiemployer unit proposal as a program that would cause only chaos and confusion, expressed confidence in the Board election procedures, stated that the, Respondent :was completely opposed to the union proposal for a card check, and concluded with the statement: It is our belief that your proposed program will not benefit any one in the community and we shall, exercise all- the legal rights we have to express this opinion to our employees. - • , 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' The letter was signed by Earl Bailey and Wallace Byer, president and secretary- treasurer, respectively, of the Respondent. Shortly after receipt of the Respondent's letter, Scott called on Bailey and Byer in their office.' The latter, however, was present only intermittently and took no active part in the conversation. Scott testified that at this meeting he renewed the union demand for recognition and collective-bargaining negotiations, but'that Bailey rejected this request and stated that he would shut down the mechanical operations in the garage before he would recognize the Union. Scott further testified that Bailey asked if there was anything he could do to stop the union campaign and concluded their conversation with a declaration that he would endeavor to have Scott removed from his post as leader of the drive. Bailey testified that apart from a reiteration of the Respondent's stand on the union question, which had been set out earlier in the letter of April 5, he and Scott had an extended conversation which included some good-natured banter along with his rejection of the demand for recognition. Bailey denied that he threatened to close the service department before he would recognize the Union and he also denied having asked Scott what could be done to stop the organizational campaign. The two principals in this conversation were not strangers. Both had lived in Covington for many years, were well known to each other, and, as each testified, over a considerable period of time had worked very amicably to- gether on various civic projects sponsored by the Covington Chamber of Commerce. It is the harsh duty of the Trial Examiner to decide as to which of these participants related the more credible version of this meeting. In keeping with* that responsibility, it is the Trial Examiner's conclusion, based on the opportunity of having seen and heard these witnesses testify, that during the course of this conference the Respond- ent's president, in expressing his opposition to the union drive, did state that he would shut down the service department before he would recognize the Papermakers. On the other hand, although Bailey also may have asked Scott as to what might be done to stop the campaign, the Trial Examiner is not convinced that the Respondent's president made any concrete threat that he would endeavor to have Scott withdrawn from his post as leader of the drive. The organizational campaign among the Respondent's employees actually started during the last week in March when Harry Wolfe, a "mechanic in the Respondent's. body repair shop, contacted one of the organizers and requested that he be supplied with some authorization cards. As a result, Clarence W. Farmer, vice president of Local 675 of the Papermakers, arrived at the garage one afternoon and handed Wolfe a supply of authorization cards for the latter to use in soliciting his coworkers to join the Union. According to Wolfe, about 1 hour later he received a telephone call which he at first presumed to be from Farmer. Wolfe's testimony as to his conversation on the telephone was as follows: The caller first asked if anyone in the shop had signed cards and when Wolfe replied in the affirmative the caller asked who had done so. Wolfe then named several of his coworkers including Harry Barger, Leo Wolfe, Delbert Hoke, and Robert Poage. The caller thereupon asked if he could get Wilbur Wright, foreman of the body shop, to sign a card. Wolfe replied that this attempt would be as useless as endeavoring to get Bailey to sign a• card. The caller then concluded the conversation. According to Wolfe, at that moment he realized that the other party to the call was not Farmer, as he had presumed at the outset, but Wallace Byer, secretary-treasurer of the Respondent Company. Wolfe testified that the body shop was linked by telephone with the garage office and that on a number of occasions he had talked with Byer by telephone and that at the conclusion of the above conversation he clearly recognized the voice of the other party as that of Byer. The following day, Wolfe discussed this telephone call with Earl Bailey. According to Wolfe, he told the Respondent's president that Byer had queried him by telephone as to who had signed union cards and that he had told him that "nobody signed those cards that I remember yet." Wolfe testified that Bailey dismissed the matter with the comment that "Wallace could go crazy if he wanted to; but he wasn't going to worry anything about it; he said that he got along pretty well with the Union .when he was at Industrial Rayon." Bailey testified that Wolfe talked with him about a conversation which the latter allegedly had with Byer on the telephone. According to Bailey, he dismissed the whole story as incredible and questioned Wolfe as to why he would think that "I'd have an associate silly enough to make some kind of call like that." Byer testified that he did not believe that he had ever talked with Wolfe about the Union. Both Scott and Farmer testified that on the day that Wolfe received the authorization cards neither had subsequently had a telephone conversation with Wolfe as to the 'All three participants testified as to this meeting, but no one was able to give the precise date on which the conversation occurred. COVINGTON MOTOR COMPANY, INC. 35 progress of his solicitation drive among his coworkers. Farmer also testified that after delivering the cards to Wolfe on the day in question he had a chance meeting with Byer as he was leaving the garage .2 Byer testified that he could not recall hav- ing seen Farmer on this occasion but conceded that the meeting might have occurred as the latter testified. Wolfe was a man in later middle age. He had been a mechanic most of his adult life, and, as was fully developed on cross-examination, he was addicted to alcoholism. Nevertheless, throughout his appearance on the stand during which he underwent a :searching examination by able counsel for the Respondent, he appeared completely frank and honest. Moreover, he gave the impression of a totally unsophisticated, ingenuous person who would be unlikely to conjure up a completely fictitious account about the alleged telephone call. It is, therefore, the conclusion of the Trial Ex- aminer that his testimony about the telephone call which he attributed to Byer was not fabricated nor was it a figment of his imagination. Upon a consideration of the testimony of all the witnesses who testified about this matter, it is the conclusion of the Trial Examiner that the conversation occurred as Wolfe related it and that the other party to this telephone call was Wallace Byer. After writing the letter of April 5, in which the Company rejected the union re- quest for recognition and bargaining, Earl Bailey posted a copy. on the employee bulletin board. Wolfe testified that shortly after this letter appeared on the board he noticed Wilbur Wright, foreman of the body shop, reading it and on that occasion walked up to where Wright was standing to as what the notice was about. Accord- ing to Wolfe, at that point Wright turned to him and declared, "That's your d- union; you know what it is." Wright testified that he could recall reading the letter when it was posted on the board, but that he did not remember making any comment about the matter to Wolfe. Upon a consideration of the testimony of these two witnesses, including their demeanor, the Trial Examiner concludes and finds that Wolfe's version of this incident is credible. Wolfe did not report for work on Monday, April 8. When he came to the shop ,on the morning of April 9 he was discharged. Wolfe testified, without contradiction, that he had worked for Covington Motor 'Company "off and on" for 25 years. During that same period he had also worked for other garages in the same locale . He further testified, also without contradict tion, that during the time that he worked for Covington he had never been dis- charged. He was last rehired by the Respondent at some time in 1962, on which occasion Foreman Wright went to Wolfe's home and induced him to return to work for Covington with the offer of permanent employment and a salary of $85 per week.3 Wolfe lived on a farm several miles from the city of Covington. On Monday, April 8, 1963, he did not report for work at the garage. Instead he remained at the farm to repair the fence around a cattle pasture. At the time his son was also employed at the garage. On the morning of April 8, his son reported to Foreman Wright that his father would remain at home that day to repair some fence. According to Wolfe, when his son returned that evening he reported that in the morning Wright received the information that Wolfe would be absent with the comment that "that will be all right," but at closing time the foreman brought word that Byer said that his father (Wolfe) should "keep on building fence and they would -send for [him]." Wolfe testified that the following day when he reported for work he asked Wright whether anything was wrong. The latter sent him to see Bailey who, in turn, told him to see Wright. At this point the foreman told Wolfe that .he had to have someone in the body shop on Monday morning and since Wolfe 'had not been there the day before, 'he would have to let him go .4 Wolfe testified 2 Farmer had been an organizer for the Paperworkers for several years. That his 'identity in this connection was known to the Respondent was' manifested by the fact that sometime earlier both Bailey and Byer had discussed with'Farmer the prospect of securing him as a customer for their car rental service in connection with his travel while on union business. 2 The foregoing findings are based on the testimony of both Wolfe and Wright which, in this connection, was mutually corroborative. 4 The foregoing findings as to the circumstances of Wolfe's actual discharge on April 9 are based on Wolfe's testimony. In this regard his testimony was corroborated by that of Bailey who testified that when Wolfe came to him that day he sent him back to Wright and insisted that the latter bring Wolfe to him and give the employee the reason for his dismissal. According to Bailey, "I wanted to impress on Mr. Wright that it was his responsibility to handle that [the discharge], so finally the two of them came up to .my office." 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he had never been warned about missing work prior to this. date. There was no clear evidence to the contrary. In its response to the General Counsel's allegation that the real reason for dis- missing Wolfe was his identification with the union campaign, the Respondent offered considerable evidence about this employee's absentee record and his addic- tion to alcohol. Wolfe frankly conceded that he had been arrested for drunken driving several times and that the week before the hearing he had been in jail on a charge of being "drunk in public." The Respondent offered in evidence a docu- ment which purported to detail Wolfe's unauthorized absences from work. Bailey testified that be had this documentation prepared when Foreman Wright complained to him about Wolfe's repeated, failure to report for duty. The exhibit covers the• period of Wolfe's employment from March 30, 1962, to April 6, 1963, and lists 54 days or half days when he was allegedly absent without permission. - Many of these dates were a Saturday or Monday. On direct examination, Bailey testified that Wright had assured him that Wolfe was absent without authorization on every one of the dates listed in this exhibit. On cross-examination, however, he con- ceded that since it was company policy to allow employees off every other Satur- day he was not certain as to the list's accuracy with respect to Saturdays nor was he certain that on some of the dates listed the employee was not ill. The list also attributed an entire week of unauthorized absence to Wolfe from March 18 to 23, 1963. When Foreman Wright - was on the stand, - however, he admitted that throughout that particular week Wolfe had been off as the result of illness. Further- more, Wright could not identify from the exhibit, or any other document, those Saturdays when Wolfe, along with the other employees, was excused from reporting for work. Foreman Wright testified that because of Wolfe's instability in reporting for duty be had been endeavoring to replace him for a longtime. According to Wright, however, this search was unavailing because several potential replacements whom he tried "were rum heads and they would quit." He further testified that be secured one Fred Wilson as a final replacement for Wolfe on the afternoon of April 8. According to the foreman, shortly before that date Wilson had asked him if he needed a body man "and I told him that I may after Monday, and, sure enough on Monday, Harry laid out and I hired Mr. Wilson." The latter mechanic remained in the Respondent's- employ until August 6, 1963, when he voluntarily quit. Somewhat significantly, during the period of less than 4 months while work- ing for Covington, Wilson was absent for 16 days. Wright also testified that Wolfe's Monday absences had been a problem and that the employee had been warned that the next time he was off on a Monday, Wright would let him go.5 From April 1962, when he was rehired, until his dis- charge, Wolfe was absent a total of 12 Mondays. The last such day of the week when-he was off duty, prior to April 8, was February 25 .6 This; of-course, was an absentee record that could readily serve as grounds for dismissal in any business organization. On the other hand, Wright did not question Wolfe.'s ability as a mechanic. Moreover, from Wright's testimony, as well as that of Bailey, it was apparent that the employee's personal failings, quite apart from his proficiency as a mechanic, had been well known for many years. Notwithstanding this fact, in 1962 Wright had induced Wolfe to return to work for the Respondent. The foreman conceded that at the time he rehired the man nothing was said to the employee about his prior performance or the need for him to change his ways. From Wolfe's employment record it is apparent that over a period of months and years he had been absent frequently and that if the Respondent had a stringent policy on absenteeism he would have been dismissed years earlier and never rehired. That, however, the Respondent did not do. Instead, it tolerated Wolfe 's casual attitude on reporting for duty over a long period of time. The Respondent, of course, was not thereby • precluded from. ever adopting a different attitude. The question to. be resolved here, however, is what its motive was in imposing this sanction at the time of Wolfe's-termination. For, as one court has stated. "A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." N.L.R.B. v. Solo Cup Company, 237 F. 2d.521, 525 (C.A. 8). Between February 25, the last Monday prior to his dismissal that Wolfe had not reported for duty, and April 8, Wolfe had become active in the union campaign. $ Wright, however, could not recall with any specificity the date when this alleged warning was transmitted to the employee. - This Includes March 18, 1963, when Wright-conceded that Wolfe was sick. COVINGTON MOTOR COMPANY, INC. 37 As found earlier, this was, well-known to the Respondent. On March 27, Byer made the anonymous telephone call, described above, in which he disclosed his knowledge as to Wolfe's involvement in the organizational drive and solicited more information about it from the employee; The following day Wolfe discussed the matter with Bailey. About a week later, when Wolfe asked Wright about Bailey's reply to the Union which had been posted on the bulletin board, Wright disparagingly commented to Wolfe, "That's your d- union; you know what it is." A few days before Wolfe's termination, Foreman Wright suggested to Wilson, a potential replacement, that he might have a job for' him the following Monday. When Wolfe sent word that he would not be at the shop on April 8, Wright hired Wilson, a mechanic whose subsequent absentee record was not much different from that of Wolfe. Although Wright testified that he had warned Wolfe that he would be dismissed if he missed work another Monday, the foreman's testimony in this regard was not convincing. Equally unpersuasive is the purported documentation of Wolfe's absentee record, in the light of its admitted failure to distinguish be- tween the days when the employee was concededly ill• or excused from Saturday work and the manner in which it charged off all of this time as a series of un- authorized absences. Moreover, on the basis of the testimony as to this document, it appears that-the tabulation was prepared after the decision was made to dismiss Wolfe, rather than before.? Consequently, in the light of the foregoing findings, it is the conclusion of the Trial Examiner that the real reason for the Respondent's dismissal of Wolfe on April 9 was not the fact that be had been. absent on another Monday but that he, had recently become an active proponent of the Paperworkers. Thus, as was said by a court of appeals in another case, Wolfe's absentee record "apparently became intolerable only after he had joined the union." N.L.R.B. v. Electric City Dyeing Co., 178 F. 2d 980, 983 (C.A. 3). Accordingly, the Trial Examiner concludes and finds that by its termination of Wolfe, the Respondent violated Section 8(a) (3) and (1) of the Act: The Trial -Examiner further finds that when Byer engaged in the telephonic interrogation of Wolfe as to the union activities of the other employees, as found above,-the Respondent also violated Section 8( a) (1).9 Robert Poage was discharged on March 27, 1963. The General Counsel alleges that this employee was discharged because the Respondent learned on that date that Poage was a union adherent. This is denied by the. Company, according to whom Poage was dismissed for cause. Poage was hired as a mechanic by Covington in December 1961 and was employed continuously thereafter until his discharge.9 Wolfe testified that during the noon hour of the day that Poage was terminated he talked with him about the Union and the latter stated that he would sign an authorization card. Later that afternoon, in the telephone conversation with Byer, described above, Wolfe named Poage along with three other employees as having signed cards. In fact, Poage had not signed a card at that time and did not do so until, as he testified, approximately a week subsequent to his dismissal. In any event, later that afternoon Poage was called into the Respondent's office where Bailey told him that he was being discharged. According to Poage, Bailey told him on that occasion that this was being done be- cause Abe Thomas, an official of the Clifton Forge Industrial Loan Company, wanted to garnish his wages to collect on a delinquent loan. Poage testified that that evening 7 Wright also testified that Wolfe had been negligent about the use of his tools in that he did not keep them at the shop and thus found it necessary to borrow from others, in- cluding Wright. This objection to the employee, however, was in the nature of an after- thought, for Wright conceded that this practice had been characteristic of Wolfe's working habits over a long period of time. s The .Board has held -that a statement made to a union organizer may not he coercive even though the same comment made to the employees involved would be held a violation of the Act. Norman R. Kopp and Larry K. Evans, d/h/a Kopp-Evans Constrvetion Com- pany, 143 NLRB 690; Marie T. Reilly, d/h/a Reilly Cartage Company, 110 NLRB 1742, 1744-1745; Mao Silver, Irwin Silver and Edward Braude , co-partners, d/h/a Atom Silver Z Son. 123 NLRB 269, 276. For this reason, In the present case, the Trial Examiner does not find that the Respondent violated Section 8(a) (1) when Earl Bailey stated that the Company would close its service department before it would . recognize the Union, since this remark was made only to Harry Scott, a union representative, at a time when no employees were present. Y Prior to his last employment for the Respondent ; Poage had worked at the garage from May 1958 to April 1961 as an apprentice mechanic. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he telephoned Thomas at his residence to question him about the matter and at that time Thomas told him that he had no plans to attach the employee 's wages. The -General Counsel called Thomas , obviously to corroborate Poage . Thomas, how- ever, had no recollection that Poage had ever called him at his home on the date in question, as Poage had testified. According to Thomas, he telephoned Bailey several times about Poage's delinquency in repaying a loan. He could not recall the exact number of such calls nor the precise dates that he made them . He did recall, how- ever, that some of them were in March. The General Counsel then asked him the following question as to these later calls to Covington and the witness gave the answer which appears below: Q. Did you state that garnishment was imminent? A. Yes, I told the management that I would have to take positive action. We were just carrying this account too long. Bailey testified that there was no one particular reason why Poage was discharged on March 27 . According to the company president, "It was just a sequence of -events that led to that [Poage's dismissal]; a discussion of his work with the shop foreman, the retail merchants' report, and the whole chain of events." It was clear that Poage's employment record left much to be desired . Sometime .in 1962 his driver's permit had been revoked for a year . According to Bailey, this .impaired the employee's usefulness as a mechanic because he could no longer road- test a car. Later, in January 1963 , Poage had used a company car for a weekend trip without permission. That evening Byer discovered him in the act of returning the car to the garage . Poage was then without a license to drive and, according to Byer's testimony, on this occasion the employee was intoxicated . At the hearing, Poage conceded that as a result of this incident Bailey threatened him with dismissal. On a Saturday, not long before his discharge , Poage approached Jesse Wright, the used-car manager for the Respondent , to ask that he make an offer to buy back an automobile which Poage had-bought from the Company sometime before . Wright took the matter up with Bailey who told him that the Company would rather not -bid on the car, then 9 years old. When Poage insisted , however, that Bailey make an offer, the latter told him that the Company could not pay over $ 100 for the auto- mobile. Poage became very indignant at the low price that Bailey offered and told him that he.needed money immediately .. According to Bailey, Poage told him that the mortgage on his house was about to be foreclosed . During the course of :this discussion Bailey offered to loan him $100 with the car as security . At that :point, Poage went off for a short while , but returned to the office in about 30 minutes and then told Bailey he needed $ 150 and that if he did not get it he would quit. Bailey declined to meet his demand and Poage became highly incensed . Before leaving the office, however, he demanded of the clerical staff some information as to the amount which the Respondent had paid to the Industrial Loan Company. He was dissatisfied with the data given him and launched into a profane and intemperate attack on the calibre of the clerical staff . Miss Frances Caldwell., the company book- keeper and the object of Poage's tirade, testified as to this incident . She also testi- fied that the employee was intoxicated at the time. Her testimony in this connec- tion was corroborated by Bailey and Byer. Poage conceded that while still in the .office he announced that he was quitting and that after leaving the office he also made this declaration to his foreman. Poage thereupon left the shop , although he had been scheduled to work that day. The following Monday morning Poage returned to the garage and resumed work- ing. Bailey testified that when he noticed this fact he asked Harold Hostetter, shop -foreman, for an explanation and that the latter complained that he could not let 'Poage go at the time because he was needed to finish up several jobs that he had • -already begun. According to Bailey, he told Hostetter that under these circumstances he would permit him to keep Poage, but that as soon as he was caught up on the work or found a replacement for this mechanic, Poage was to be terminated. Early -that same week Poage again went to Bailey about his request . for a loan. Bailey testi- fied that he told the employee that the original check in the amount of $100 had been destroyed , the preceding Saturday after Poage had left the office in 'a huff. He assured Poage; however, that he could still get that amount if he wanted to borrow it on his car. Poage conceded that he agreed to sign a note for the $100 and that "he received the money on some day early that week. It is significant that although Poage testified that the Saturday incident , related above, had occurred some 3 to 4 weeks before his termination , the Respondent estab- 3hshed that it had occurred on Saturday , March 16. Hostetter testified that when COVINGTON MOTOR COMPANY, INC. 39' Bailey asked him about Poage on the following Monday he was opposed to . laying off the man at that point because of all the work that had to be done. He further testified, however, that later that week he was in a discussion with Bailey and Byer on which occasion it was decided that Poage would be dropped although no date was fixed for his dismissal. Hostetter also testified that about this time he suggested. to Poage that he start looking for another, job. Most of Poage's work as a mechanic- was on the renovation of used cars for resale. Several witnesses, including Hostetter, Bailey, and Jesse Wright, the latter being the used-car manager, testified that Poage was a poor mechanic. Bailey also testified that over a long period of time the Company had been receiving calls from Poage's creditors and that Poage was getting telephone calls at the shop from creditors who were seeking to collect money. Ac- cording to Bailey, during the last week of Poage's employment, two more judgments. against the employee were brought to his attention and at that point he. and Byer decided upon the termination. Bailey testified that on March 27, when they reached this conclusion it was discovered that when the office manager had given Poage the- $100 check the preceding week she had failed to have him sign either a note for that amount or the title lien on his car. According to Bailey, Byer thereupon rectified that.matter by having Poage sign the foregoing documents on the afternoon of March 27 and at closing time that day he (Bailey) told Poage that he was being.. dismissed.'° As found earlier, at the time of his discharge Poage had not signed.. an authorization card. Insofar as this record is concerned his sole union activity at that point consisted of. his having told Wolfe earlier that day that he was willing to, sign a card. This fact, however, was brought to Byer's notice in the.telephone con- versation with Wolfe later that afternoon. According to the General Counsel, it was this knowledge which caused the Respondent to decide upon Poage's immediate-. dismissal rather than dissatisfaction with the employee's work performance or his. numerous credit problems. Poage was not a convincing witness on his own behalf. He was an immature youth who, while on the stand, appeared lacking in responsibility and, at times, while- testifying was obviously less than frank. For this reason, insofar as his testimony was contradicted, the Trial Examiner concludes that it cannot be credited. The timing of the discharge and the subsequent developments at the garage, as found' earlier herein, lend support to the General Counsel's contention that this employee, along with Wolfe, was really dismissed for having been identified with the Union. This conclusion, however, ignores in large measure Poage's prior work record, the-, threat to discharge him in January for unauthorized use of a company car, Poage's own declaration on March 16 that he was quitting, and the concurrent involvement of the latter with his creditors. Although the issue here is not free from doubt, in view of the findings set forth above, it is the conclusion of the Trial Examiner that here the General Counsel has not established by a preponderance of the evidence that- Poage was discriminatorily terminated. For that reason it will be recommended` that the complaint be, dismissed insofar as it alleges that Poage was discharged in violation of Section 8(a) (3). 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. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial' Examiner will recommend that the Respondent cease and desist therefrom and take' certain affirmative action of the type conventionally ordered in such cases as pro- vided. in the Recommended Order below, which the Trial Examiner finds necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. For reasons set forth in Consolidated Industries, Inc., 108 NLRB- 60,'61, and cases there cited, a broad cease-and-desist order will be recommended. 10 Bailey testified that, on this occasion , "I discussed with Mr. Poage the events leading- up to his discharge which consisted of things I related with reference to his use of the car, the quality of his work, the bad credit rating that he had ' in the community, the- number of calls that were coming into the office, and in general that we considered him, an undesirable employee." ' 40 DECISIONS , OF NATIONAL LABOR RELATIONS. BOARD Having found that the Respondent unlawfully terminated Harry R. Wolfe on April 9, 1963, the Trial Examiner will recommend that the Respondent offer him im- mediate. and full reinstatement to his former or substantially, equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of discharge to the date of the Respondent's offer of reinstatement. Backpay will be computed in the manner established, by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum computed quarterly. CONCLUSIONS OF LAw 1. The Respondent is engaged in commerce and the Union is a labor organiza- tion, all within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of Harry R. Wolfe, thereby discouraging membership in the Union, the. Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3 ) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act,, the Respondent has engaged in and is engaging in unfair Iabor practices within the meaning of Section 8(a)(1) 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. 5. The General Counsel has not proved by a preponderance of the evidence that the Respondent discriminatorily terminated Robert K. Poage on March 27, 1963. RECOMMENDED ORDER Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby recommends that the Re- spondent, Covington Motor Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a)' Discouraging membership in any labor organization of its employees by dis- criminating in regard to their hire, tenure, or any other terms or conditions of their employment. (b), Interrogating employees concerning union affiliation or activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. (c) In any other manner interfering with , restraining, or coercing its employees in the, exercise of their right to self-organization, to form, 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, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Harry R. Wolfe 'immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this Decision 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. (c) Post at its place of business in Covington, Virginia, copies of the attached notice marked "Annendix." 11 Conies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by an authorized repre- sentative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, 11 In the event that this Recommended Order Is 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 is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for. the words "A Decision and Order." ARTCO-BELL CORPORATION 41 including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifth Region, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.12 It is further ordered that the complaint be dismissed insofar as it alleges that the Respondent discriminatorily terminated Robert K. Poage. - 12 In the event that this Recommended Order Is 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 the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of 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 discourage membership in United Papermakers and Paper- workers, AFL-CIO, or in any other labor organization of our employees, by discriminating in regard to hire, tenure of employment, or any term or condi- tion of employment of any of our employees. WE WILL offer to Harry R. Wolfe immediate and full reinstatement to his former or substantially equivalent position, without prejudice to any seniority or other rights previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. We WILL NOT ask any employee to report about the union organizational ac- tivities of his coworkers or coercively, or otherwise unlawfully, interrogate our employees concerning their union activities or sympathies. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. COVINGTON MOTOR COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act of 1948, as amended, after discharge from the Armed Forces. 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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. Artco-Bell Corporation and Millmens Local Union No. 1751, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case No. 16-CA-1902. February 18,196-1p DECISION AND ORDER On November 18, 1963, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Re- 146 NLRB No. 3.