L. J. Dreiling Motors Co., Inc.

L. J. DREILING MOTORS CO., INC. 535 L. J. Dreiling Motors Co., Inc. and International As- sociation of Machinists and Aerospace Workers ORDER and Its District Lodge No. 86, AFL-CIO. Cases Pursuant to Section 10(c) of the National Labor, 27-CA-2182 and 27-CA-2256 Relations Act, as amended, the, National Labor November 28,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On August 18, 1967, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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 Trial Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint. Thereafter, the General Counsel filed limited ex- ceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 filed by the General Counsel, and the entire record in these cases, and hereby adopts the findings, con- clusions, and recommendations of the Trial Ex- aminer with the following modifications. Although the Trial Examiner's Decision refers to findings that certain unilateral changes violated Section 8(a)(5) of the Act, he in fact made no 8(a)(5) findings, apparently through inadvertence. Since the Respondent discontinued coffeebreaks and the practice of paying for Sunday holidays at a time when the Union had been designated as the collec- tive-bargaining agent in the shop, we find that the Employer's unilateral action with respect to these matters violated Section 8(a)(5) as well as Section 8(a)(1) of the Act. We also find merit in the General Counsel's ex- ceptions to the Trial Examiner's failure to include in the remedy a provision that Respondent reim- burse its employees for the aforementioned holidays. Since, inter alia, the holiday pay was de- nied the employees in reprisal for their voting for the Union, a proper remedy should include an order restoring the status quo.1 Relations Board hereby orders that the Respond- ent, L. J. Dreiling Motors Co., Inc., Denver, Colorado, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Threatening employees with the loss of benefits because they voted for the International Association of Machinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO, or any other labor organization. (b) Changing conditions of employment as a reprisal against employees for voting for the Inter- national Association of Machinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO, or any other labor organization. (c) Unilaterally changing conditions of employ- ment of employees in an appropriate bargaining unit represented by the aforesaid Union, or any other labor organization. (d) Discouraging membership in the Interna- tional Association of Machinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO, or any other labor organization, by discharging or otherwise discriminating against employees in re- gard to hire or tenure of employment or any term or condition of employment. (e) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization, to form labor organizations, to join or assist the International As- sociation of Machinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or the right of employees to refrain from any such activity as such right might be qualified by a lawful union-security contract. 2. Take the following affirmative action to effec- tuate the purposes and policies of the Act: (a) Offer reinstatement to Robert Shepard to his former or substantially equivalent job without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay or other compensation he may have suffered by reason of the discrimination against him, in ac- cordance with the criteria and standards set forth in the portion of the Trial Examiner's Decision enti- tled "The Remedy." Interest at the rate of 6 percent per annum shall be added to this amount, to be com- puted in the manner set forth in Isis Plumbing and Heating Co., Inc., 138 NLRB 716. Notify the ' Wilbraham Manufacturing Corp., 167 NLRB 333. 168 NLRB No. 76 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement , upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (b) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security pay- ment records , timecards , personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Reimburse employees in the bargaining unit on Christmas Day of 1966 and New Year's Day of 1967 for holiday pay for those days. (d) Reinstitute its former system of paying for Sunday holidays. (e) Post at its shop in Denver, Colorado, copies of the attached notice marked "Appendix."2 Copies of said notice , to be furnished by the Regional Director for Region 27, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 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. (f) Notify the Regional Director for Region 27, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, En- forcing an Order." APPENDIX WE WILL NOT unilaterally, and without first negotiating with the Union that won the aforesaid election, change any condition of em- ployment. WE WILL NOT discriminate against em- ployees because of their union activities or sup- port of the Union by discharge or by changes as to hours or conditions of employment. WE WILL offer reinstatement to Robert Shepard to his former or substantially equivalent job and WE WILL pay him wages and other compensation he may have lost as the result of the discrimination against him. WE WILL pay those employees in the bar- gaining unit on Christmas Day of 1966 and New Year's Day of 1967 for holiday pay for those days. WE WILL restore to the employees of the bargaining unit our former system of paying for Sunday holidays. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right, under the National Labor Relations Act, to engage in self-or- ganization, to form, join, or assist the Interna- tional Association of Machinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO, or any other labor organization, and to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or with the right of employees to refrain from any and all such activities, except as such right might be qualified by the provi- sions of a lawful union-shop contract between the Company and the Union that is the lawful collective-bargaining agent in our shop. L. J. DREILING MOTORS CO., INC. (Employer) NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT interfere with, restrain, or coerce you by: Threatening you with the loss of various benefits because you voted for the Inter- national Association of Machinists and Aerospace Workers and its District Lodge No. 86 , AFL-CIO, in the National Labor Relations Board election. Changing and suspending any conditions of employment because you voted for a union. 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 application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance With its provisions, they may communicate directly with the Board's Regional Office, New Custom House, Room 260, 721 19th Street, Denver, Colorado 80202, Telephone 297-3551. L. J. DREILING MOTORS CO., INC. TRIAL EXAMINER'S DECISION RAMEY DONOVAN, Trial Examiner: Charges and amended charges in Case 27-CA-2182 were filed by the International Association of Machinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO, on January 16, 1967, and at various later dates. The charge in Case 27-CA-2256 was filed by the Union on April 14, 1967. An amended complaint was issued by the General Counsel of the Board under date of April 25, 1967. The amended complaint alleged that Respondent, in December 1966, told its employees that it would close its business if necessary to keep out the Union; in January 1967, threatened employees with loss of various condi- tions of employment if necessary to keep out the Union; in January 1967, told its employees that those who had voted for the Union were responsible for future hap- penings; in January 1967, unilaterally changed existing conditions of employment; in January 1967, laid off em- ployee Shepard because of his union activities and since that time had given preferential employment opportuni- ties to employee Cyril Dreiling; in April 1967, terminated employee Shepard because of his union activities; since January 1967, has refused to bargain with the Union, the certified bargaining representative. The foregoing con- duct is alleged to be in violation of Section 8(a)(1), (3), and (5) of the Act. In its answer, Respondent denies the commission of unfair labor practices. The case was heard in Denver, Colorado, on May 31 and June 1, 1967. 1. JURISDICTION L. J. Dreiling Motors Co., Inc., Respondent, is a Colorado corporation. Its principal place of business is in Denver, Colorado , where it is engaged in the sale and ser- vice of automotive vehicles. On an actual and projected basis for a representative 12-month period, Respondent sold and distributed products and provided services of a gross value in excess of $500,000. In the same period, Respondent received goods valued in excess of $500,000 transported directly from States outside Colorado. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES L. J. Dreiling had been service manager for many years at Bill Dreiling Motors in Denver, Colorado. Bill Dreiling owned and operated the above-mentioned enterprise and he was the brother of L. J. Dreiling. Another brother, Cyril Dreiling, a mechanic, also worked for Bill Dreiling Motors. Not long before August 1, 1966, Bill Dreiling Motors moved to a new location in Denver. The employees moved with their employer. Around this same period L. J. Dreiling had apparently decided to go into business for himself at the site abandoned by Bill Dreiling Motors. L. J. Dreiling spoke to various employees of Bill Dreiling Motors about coming to work at his new enterprise, L. J. Dreiling Motors Company, Inc., at the old location. The 537 employees so approached were men who had worked under L. J. Dreiling's supervision while at Bill Dreiling Motors. Among these employees were Shepard, who had been at Bill Dreiling Motors, for 8 years; Cyril Dreiling, who had been at the last-mentioned Company for 18 years, Stelter and Jackson. L. J. Dreiling's statements to the employees recruited for his new enterprise were, in substance, that it was a new company, starting from scratch, and that if the busi- ness succeeded the employees would participate in the success but that initially they would have the same wages and working conditions as they had at Bill Dreiling Mo- tors, with the exceptions of vacations. As to the latter, all the men would be starting as new employees without the vacation rights that had apparently accrued to them at the Bill Dreiling Company. Accordingly, Shepard, Cyril Dreiling, Stelter, and Jackson came to work at L. J. Dreil- ing on August 1, 1966, when the latter organization com- menced operations. The exact time when union organization commenced at L. J. Dreiling is not clear but it was evidently in the latter part of 1966. As far as appears, Dreiling' first became aware of union activity among his employees when the Union filed a petition for certification with the Board and Dreiling was notified of the filing. Dreiling, then, in the latter part of December 1966, held at least two meetings with his employees at the Company's place of business. In the meantime, a Board-conducted election among the employees had been scheduled for January 5, 1967. Shepard testified that at a meeting with the employees on December 28, Dreiling stated that he had gone through a union contract and that the paid holidays was what the employees were receiving and other items were no more than he had told the employees he expected to give them. As to wages, Dreiling said that the union con- tract indicated to him that the lotman2 would be making less money than at present, if the shop went union. Ac- cording to Shepard, Dreiling said that he had the right not to negotiate and sign a contract and that he did not need the Union to tell him how much of a raise to give because he realized that all the employees needed money. Dreiling also, according to Shepard, said that if necessary he would either close or sell his business in order to keep the Union out. Employee Jackson recalled one meeting in the period immediately before the election. Dreiling said, according to this witness, that the Union was trying to come in and there was nothing he could do about it. However, Dreil- ing said that he would like the employees to stick with him because he did not think that the Union, considering the size of the shop, "could benefit us [the employees] anything." Billington is the brother-in-law of Dreiling and is Respondent's service manager. He is also secretary or treasurer of the corporation. He assigns and coordinates work and writes up repair orders. He is in charge of the Company in Dreiling's absence and has authority in the course of his normal duties to grant time off to employees. We find that Billington is a supervisor. Billington attended the meetings preceding the election. In substance, his testimony is that Dreiling said that he I Unless otherwise indicated "Dreiling" is a reference to L. J. Dreilmg, the president and principal owner of Respondent. 2 Employee Glenn. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could not see why "we" would need anybody coming in to run the shop and the business and that he could not un- derstand the need for a union in "our small shop." Billing- ton states, "We just discussed what would be the benefits of the union or what would be the drawbacks of it." Respondent's counsel asked his witness whether Dreiling had "threatened any of the employees with being fired or a change in benefits or anything else." Billington an- swered, "not that I know of." The witness said that Dreil- ing told them to "vote the way you feel." Cyril Dreiling testified that in one meeting before the election, Dreiling "asked us all why we wanted the union in there" and nobody answered. Dreiling said that it was up to everybody "to make up their own mind , whether they wanted to union in or whether they didn't." At another meeting in the same period the discussion was along the same lines , according to Cyril Dreiling, but on this occasion "everybody was voicing their opinion then about why they wanted the union in there. They'd only have to work 40 hours a week and make more money. . a big money raise or something ...." According to Cyril Dreiling, Shepard spoke up and said "they got Union all over the country and the Union is going to come in." Employee Glenn said that he did not want the Union. Someone else said that with a union they would only have to work 40 hours and would make more money. When asked whether Dreiling made any threats, the wit- ness said, no, and that Dreiling said everybody could vote the way "they wanted to." Dreiling testified that at the preelection meetings he discussed various benefits as they were in the shop and possible union benefits. He was asked whether he had ever threatened the men "with firing" and he said, no. He said that he did not say that he would close his business if necessary to keep out the Union. The witness testified: I did say this, and it has been repeated here. I said, if I can't - I know how to run this place. If I can't run it this way, and they are wanting to force me out of business, they will have to do it. I never said I would lock the doors because of the union, no. I said, `if I can't do it the way I got to cut down here and there, and if it is going to aggravate this man or this man, then I can't stay in business. I will have to lock the doors ....' A careful consideration of all the evidence, including my appraisal of the witnesses, does not persuade us that in the preelection period, in December 1966, Dreiling stated in so many words that he would close the business or sell it to keep out the Union. We incline to believe that on this aspect Dreiling spoke substantially along the lines as described by his quoted testimony above. His state- ments are perhaps susceptible to the construction that they constituted a threat to go out of business if the Union came in but this would, in our opinion, be the case only if added projection and interpretation were applied to the statements. In context, we believe that the substance of Dreiling's approach was that he did not believe that a union was needed in his shop and that a union would not be helpful. This position was stated to be based on the fact that Dreiling's business was in its infancy and that he knew the business and knew what was necessary and possible in the business; if a union forced him to operate otherwise than in the way he considered essential to the existence of the business, it would, in effect, be forcing him out of business and he would have to close. As we see the situation, there was not a direct threat as alleged in the complaint or as testified to by Shepard. The Union had made no demand for any specific conditions at the time. There were several bridges yet uncrossed at the time Dreiling made his remarks. If the Union won the election and if the Union demanded conditions different from what Dreiling considered essential to run a success- ful operation, the Union, in Dreiling's view, would in ef- fect "force me out of business, [the Union] will have to do it"; and, then, he would be obliged to close. While much of what Dreiling said was anticipatory and perhaps not wholly justified for that reason, the reference to clos- ing was immersed in contingency and fell short of a direct threat. We conclude that paragraph VI(a) of the com- plaint has not been sustained by a preponderance of sub- stantial evidence. The Board election was held on January 5, 1967. The employees voted 3-2 in favor of the Union. The em- ployees in the unit were Cyril Dreiling, Glenn, Shepard, Jackson, and Gonzales. No one knows how individual employees may have voted but the record does show that Dreiling knew that at preelection meetings Glenn had ex- pressed opposition to the Union; Cyril Dreiling had said that the whole thing was a matter of indifference to him- self; and Shepard had expressed prounion sentiment. It is our opinion that a reasonable man in Dreiling's position had reason to believe and probably did believe that his brother Cyril and Glenn had voted against the Union, with the other three men voting for the Union.3 On the afternoon of the election, January 5, after the election, Dreiling convoked a meeting of the employees in his office. Cyril Dreiling, a witness called by Respond- ent who was certainly not hostile to Respondent, testified that at the meeting Dreiling made it clear that he "was awfully disappointed because three of the men wanted the Union ...." Dreiling said that since the men wanted a 40-hour week, then they were going to work a 40-hour week and "there won't be no coffee breaks .. . until further notice and there won't be no privileges of any kind." Billington, another witness called by Respondent, testified credibly that at the January 5 meeting Dreiling expressed disappointment over the vote and said that any "obligations he had for them [the employees] he felt that he just couldn't, you know, stay with them ... any extra time off or anything that he might have to spend for them, he just wasn't going to do it." Billington stated that he "took for granted he [Dreiling] did mean that he was, you know, going to stop" contributions to the Blue Cross. Shepard, whose testimony I credit regarding the Janu- ary 5 meeting, testified that Dreiling said that three of his employees had not believed in him and voted for the Union and that "`as of this date, there will be no more cof- fee breaks; there will be no more paid holidays; there will be no more Blue Cross or Blue Shield; you will pay for your uniforms'; and he also said that the three employees who had voted for the Union would be responsible for anything that happened thereafter." 3 Jackson had signed a union card for Shepard. There is no evidence that Dreiling was aware of this fact but, obviously, three employees had voted for the Union L. J. DREILING MOTORS CO., INC. 539 While a witness , Dreiling was asked if he had ever threatened to stop making the company contributions to Blue Cross and Blue Shield. He answered affirmatively, stating that he did so "at the one meeting right after the election." Dreiling testified that he took the result of the election very personally and was "emotionally upset" that the employees had selected an "outside representa- tive, a stranger." I find that on January 5, 1967, Respondent, in reprisal for the majority of the employees' vote for the Union, threatened and stated to its employees that it would deprive them of various existing benefits and conditions of employment such as daily coffeebreaks ;4 employer financial contributions to Blue Cross and Blue Shield pol- icies; paid holidays; and employer payment for rental of employee work uniforms.5 We find such conduct and threats to constitute violations of Section 8(a)(1) of the Act. In addition to alleging that Respondent threatened its employees with loss of various conditions of employ- ment, above, the General Counsel has alleged that Respondent placed its threats into effect thereby uni- laterally changing existing conditions of employment in violation of the Act. It is uncontroverted that Respondent abolished cof- feebreaks after the election for a period of 2 or 3 weeks. Dreiling states that the reason for this was that the em- ployees for some time in the period prior to the election had been abusing the coffeebreaks by taking more time for such breaks than the 10 minutes contemplated. Ac- cording to Dreiling , he could do nothing about this alleged situation in December because of the impending election. The evidence is clear that on January 5 Dreiling told the employees , inter alia, and, in substance, that there would be no more coffeebreaks because a majority of the employees, to his great disappointment, had voted for the Union. We believe that the foregoing was the principal motivation for the actual discontinuance of the cof- feebreaks. There is no evidence that Dreiling or any su- pervisor had ever mentioned abuse of the coffeebreaks to employees either before or after the election.6 There was no obstacle to Dreiling's warning or cautioning em- ployees in December or any other times about excess cof- feebreak time or abolishing the breaks if the situation warranted it. A prospective election does not suspend the employer's right to customary disciplinary procedures. Accordingly, we regard the discontinuance of the cof- feebreaks, a condition of employment, as an act of reprisal, as it was, in effect, stated to be, on January 5. This was a unilateral change in a condition of employ- ment at a time when the Union had been designated as the collective-bargaining agent in the shop . We find a viola- tion of Section 8(a)(1) of the Act. Notwithstanding statements made on January 5, the evidence does not persuade us that Respondent discon- tinued its contributions to Blue Shield and Blue Cross thereafter. We credit Dreiling and other witnesses who testified that the above condition of employment remained unchanged. Regarding uniforms, the Company had paid for the rental of one clean coverall per week for each employee using such garments. Cyril Dreiling testified that there has been no change in the company payment for uniforms since August 1, 1966, when operations commenced. Jackson's testimony on this matter is not entirely clear but at one point in his testimony, when he was describing the uniform arrangement at Bill Dreiling Motors and at L. J. Dreiling, he said the latter paid for coveralls but not for pants as was also the case with Bill Dreiling Motors. Jackson was then asked, "Q. This is the same as it was before? A. Yeah, he paid on this." The witness did not testify to any change after January 5 and, if anything, his testimony indicates that there was no change. Shepard testified that, after January 5, he paid for the full cost of his uniforms by deductions made from his paycheck. The testimony is apparently, in effect, a state- ment that the Company no longer contributed to the cost of uniforms, at least as to Shepard. Dreiling testified that he paid for one coverall per week for each shop employee and that this had been the prac- tice at Bill Dreiling and at Respondent's shop since Au- gust 1, 1966. Dreiling stated that, if, for instance, an em- ployee used three coveralls a week, the Company paid for one and deducted for the other two from the employee's paycheck. He further stated that due to the presence of a new office girl, there had been a period when she had, in- advertently and through ignorance, not made deductions for uniforms in excess of one per employee and as a con- sequence the Company had been paying an excessive amount for coveralls. Dreiling states that this situation was subsequently corrected. Timesheets for biweekly periods introduced by the General Counsel do not, in our opinion, establish that Respondent ceased paying for one coverall per week for all shop employees who used them.7 We do not find that the evidence supports the apparent claim that all con- tributions by the Company for uniforms ceased after January 5. We credit the testimony of Cyril, Dreiling and Dreiling that the contributions by the Company generally continued. Regarding paid holidays, Shepard testified that Christ- mas 1966 and New Year's Day, January 1, 1967, fell on Sunday and that he was not paid for the holiday Monday following those holidays. The record indicates that this was true as to other employees. While the two holidays occurred before the January 5 election, they were in the pay period ending January 7, paychecks for which period were issued on January 11. Shepard states that, while he was employed by Bill Dreiling Motors, Memorial Day and July 4, in 1965 fell on a Sunday and that he did not work on the following Mondays but was paid for the two holidays. The sig- 4 The employees had had two 10-minute coeffeebreaks a day. 5 These various fringe benefits and conditions of employment had ex- isted at Bill Dreiling Motors and Respondent had undertaken to provide the same benefits at its shop. These fringe benefits had been placed in ef- fect and had continued since the inception of operations at Respondent's place of business. 6 Billington, the service manager, in testifying that coffeebreaks were stopped after January 5, was asked: Q. And did Mr. Dreiling, tell you why he stopped the coffee breaks. A. He just said he didn't want any more; we were going to work 8 hours a day. 9 Deductions for coveralls are shown to be as follows- Period ending 12/10 12/24 1/7 1/21 2/4 2/18 3/4 3/18 4/1 4/15 Cyril Melling 1.75 1.75 1.75 1.75 1. 75 3.50 3.50 3.50 3.50 3.50 Shepard 1,30 1,30 1.30 1, 30 1.30 3.50 --- 3. 50 3.50 Jackson 2. 25 2.25 2.25 2.25 2.25 4.50 4.50 4.50 4.50 4.50 There appears to be an overcharge on Shepard on that paycheck since he worked only 71/4 horns in the pay period of February 18. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nificance of this asserted practice of Bill Dreiling Motors is that L. J. Dreiling admittedly promised to and allegedly did pay in other respects the same benefits as the em- ployees had received at Bill Dreiling Motors. The General Counsel therefore argues that the nonpayment for Christmas and New Years after the election was part of the same reprisal enunciated by Dreiling on January 5 after the Union won the election. On the subject of paid holidays by Bill Dreiling, L. J. Dreiling testified that "Bill Dreiling had policies, what- ever he wanted. Whatever business would warrant, that was his policy. If we were making money, he paid very nicely, and if we weren't, he didn't. He never believed in paying on a holiday if it fell on a Sunday ... never did, and he never wanted to, and everyone that worked with him understood that's how he felt .... He would never pay on a Saturday or a Sunday if it was a holiday." Although other Dreiling employees had formerly worked for Bill Dreiling, Stelter was the only one who testified regarding the holiday pay on Sundays aspect. Stelter was asked whether Bill Dreiling had paid for all holidays that were not worked. Stelter said, yes, "except two that we have a little argument about ... a year ago [1966] on Christmas and New Years" which were on a Saturday. The witness states that he was paid for only a half day and he had expected a full day's pay. However, Stelter said that in his 5 years at Bill Dreiling, he had no other problem about holiday pay. This tends to cor- roborate Shepard's testimony that holiday pay was paid on Memorial Day and July 4, 1965, both of which, the calendar shows, fell on a Sunday. It may be, as Dreiling testified, that Bill Dreiling did not like to pay for a nonwork holiday, but Shepard's testimony, corroborated in an essential respect by Stelter, persuades me that Bill Dreiling did pay for Memorial Day and July 4 Sunday holidays in 1965.8 Confronted by such evidence in the General Counsel's case, Respondent was in a position to refute it by recourse to Bill Dreiling, L. J. Dreiling's brother, or his representative, or by recourse to records of the Bill Dreiling Company. This was not done nor was Respondent's witness, Cyril Dreiling, who had worked for Bill Dreiling for 15 or 18 years, asked about this subject. The question remains whether L. J. Dreiling was unaware of the foregoing past practice of Bill Dreiling. This seems unlikely in view of his long years of employ- ment with his brother. Further, there is the threat made on January 5 by Dreiling that existing privileges and benefits would be discontinued because of the election outcome and the specific inclusion of holiday pay among the benefits to be discontinued. While it is true that all the threats were not carried out 100 percent, they were car- ried out regarding coffeebreaks and the decision on pay- ment or nonpayment for Christmas and New Years came to a head in this context and very soon after January 5. It is our opinion, therefore, that the preponderance of the evidence warrants the conclusion that even the possibility of payment for the two aforementioned Sunday holidays was deliberately foreclosed as a reprisal for the result of 8 Obviously, in the period of years, not too many holidays occur on a Sunday. 9 Customarily, Respondent's employees worked substantially in excess of 40 hours at straight time rates. Shepard had never refused to work on Saturdays and there is no convincing evidence to the contrary. 10 Dreiling testified that at one of the meetings he told the employees that from reading books he had learned that among the proposed ad- vantages of a union were that "You would get more money, you would get 40 hours. . . . " the election. Under the circumstances, this was a change in conditions of employment, including the normal and reasonable expectation of the employees that Dreiling would pay for Sunday holidays as had Bill Dreiling, a standard that Dreiling had stated he would follow. This conduct is, in our opinion, violative of Section 8(a)(1) of the Act. Following the election on January 5, Respondent reduced the hours of employment of its employees in varying degrees. This is the basis of the General Coun- sel's allegation that, in January, Respondent laid off em- ployee Shepard and gave preferential employment to Cyril Dreiling. In his brief, the General Counsel also in- cludes the change in hours of employment among the uni- laterally changed conditions of employment referred to in the complaint. As Cyril Dreiling testified, Dreiling told the em- ployees, inter alia, on January 5, after the election, that since the men wanted a 40-hour week, they were going to have a 40-hour week. It is true that in preelection meetings with Dreiling various employees had cited a 40- hour week as one of the advantages to be obtained by bringing a union into the plant. However, it is apparent that in context the men were referring to a 40-hour week as a means of making more money albeit with a possible reduction in hours.9 Thus, Cyril Dreiling, in describing what some of the men said at the meetings with Dreiling about the advantage of a union, said that they referred to a 40-hour week "and make more money ... get a big money raise or something ._._.." Dreilin , himself, at one of the meetings, indicated that he was aware that the em- ployees were interested in greater income since he said that he did not need a union to tell him "how much of a raise to give his employees or when to give it because he realized that they all need more money."10 Indeed, em- ployers, including Dreiling, in our opinion, are generally aware that one of the principal reasons employees join unions is to obtain more money and, in the instant case, the employees evidently believed that with a union they could obtain a 40-hour week with the attendant result of more income to the employees. This, hopefully, to come about through an increase of hourly rates with time and one-half for overtime. We do not believe that the em- ployees were seeking a reduction in take-home pay by simply reducing their hours at the existing wage rate and we think that Dreiling understood this.11 Consequently, we are not impressed by the statement in Respondent's brief, "Can an employer be accused of an `unfair labor practice' for putting into effect after the election what the employees expressed as one of their goals before the elec- tion?" For reasons previously stated, we believe what Respondent did was not the putting into effect of one of the employees' preelection goals. Further, after the elec- tion, there was a union in the picture as the bargaining agent and the latter was not legally to be ignored in the Employer's-,-changing conditions of employment thereafter. In spite of Respondent's statements that its reduction of hours, after the election, was in keeping with the " Forty hours at $2 per hour yields $80; 45 hours at $2 yields $90; 40 hours at $2 10 yields $84; 40 hours at $2.25 yields $90; 40 hours at $2.10 or at $2.25, with time and one-half for hours over 40, has the highest yield. To the employees interested in more money, as was apparently true in the instant case , reduced hours with no change in wage rate, is the least desirrble situation. None of the parties, in our view, believed that the em- ployees wanted a union in order to bring about the last-mentioned situa- tion. L. J. DREILING MOTORS CO., INC. preelection goals of the prounion employees, its principal defense of its action is economic. 12 Before considering the economic reasons advanced for the postelection reduction in hours'13 we note the uncon- troverted testimony of Dreiling regarding a telephone conversation he had with a union official early in January 1967. Dreiling called Meacham at the union office 14 and said, "now that the election is over I would like to kind of cut down a little bit, business is slow, and I just cannot af- ford any more; I have to cut." Meacham replied, "Well, I guess if you got to cut back, go ahead, Lloyd ..." and Meacham then asked about negotiations for a contract. Dreiling said that he was prepared to negotiate any day of the week. Thereafter, contract negotiations commenced between Respondent and Waggoner, another union representative. Other than as indicated above, the Union, after being advised by Respondent of a cutback in opera- tions, did not seek to bargain concerning the cutback or the manner in which it was carried out. Under these cir- cumstances, we do not regard the cutback as unilateral in derogation of the bargaining agent's status. As to the economic justification for the reduction in hours, we have the testimony of Dreiling. Dreiling did not produce business records in support of his statemgnts re- garding the state of his business but his testimony was not controverted by the General Counsel.15 One factor, to be noted at a later point, does raise some question about business conditions at the shop as testified to by'Dreiling but it is doubtful that it is sufficient to overcome Dreil- ing's testimony as to the state of his business however general such testimony was in various ways. Dreiling testified that he started the business in August 1966 with borrowed capital of $30,000. On the first day of the hearing, Dreiling testified that the Company lost approximately $2,000 in February 1967. In 3 months, he said, the Company had lost about $10,000, of which $4,000 was the loss in December. In March, the witness said that the Company was in the "black" for about $7,000 but that this was not really profit because "I hadn't paid any bills." At the end of February, Dreiling, on the second day of the hearing, reiterated that the Com- pany lost about $10,000 in 3 months.16 At the end of February 1967, of his $30,000 capital, he had about 541 $22,000 but if he paid his bills, he said, he would have been down to $15,000. He borrowed another $5,000 in March and thereafter another $10,000. Dreiling stated that the direct labor costs were $2,000 in December and the same in January; $2,000 in November; close to $3,000 in October. Sales of parts in January were $1,500 and $1,800 in November and December. The total amount from the sale of labor and parts declined "slightly" in December and no profit was realized. Dreiling stated that he never showed a profit "in that department." On reconditioning used cars for sale, reconditioning costs were charged to the car units. The objective was to keep down the reconditioning costs. Reconditioning costs were $2,173 in September; $2,000 in October; $1,800 in November; $3,300 in December; $1,700 in January as the result of cutbacks after the elec- tion; $521 in February, also the result of cutbacks. According to Dreiling, his auditor, evidently some time before January 1967, had told him to cut back but he did not do so. Various people had advised him that he would find himself in trouble if he made cuts while the Union was trying to organize the shop. He became aware on January 6 or 7 that he had lost $4,000 in the business in December 1966.17 While the economic justification for retrenchment in operations was presented in the rather general manner aforedescribed, it was not controverted. As far as the record shows, the financial position of the business was not good when the cutback in hours was made. There were six employees whose hours of work are relevant to the question of Respondent's cutback in hours after the election. They are the two mechanics; Cyril Dreiling and Shepard; the two body shopmen, Jackson and Gonzales; and Glenn, who according to Dreiling, polished cars, did dusting, "shagged" parts, and did occa- sional mechanical work upon request. Weber, a mechanic, commenced work "right after the first of the year." He was employed prior to January 5 but was not an eligible voter. The record shows the hours worked by the men in a short period prior to January 6,18 and in the period thereafter. From the biweekly timesheets in evidence, we have compiled the following:19 Period ending 12/10 12/24 1/7 1/21 2/4 2/18 3/4 3/18 4/1 4/15 4/29 5/13 C. Dreiling 111(155) 106 3/4(15) 92 3/4(10) 1035(175) 1085(155) 1055 110 3/4 110 114 1125 113 314 115 Shepard 103 935 77 43 3/4 355 7k - 40 - 25 Jackson 101 103 77 45 3/4 585 583'4 185 40 80 695 d0 81 Glenn 113(105) 110(125) 96(16) 1095(10) 99 3/4(6) 825 92 3/4 90 935 735 95 3/4 885 Gonzales 103 103 76 3/4 16 Weber m 85 57 2 - 31 - - 73 3/4 102 3/4 12 In its brief, Respondent states that one of the reasons why Respond- ent restncted hours of employment, commencing in January 1967, was because it then became subject to the "Federal Wage and Hour Act " As we read the amendments to the Fair Labor Standards Act, the provisions thereof do not apply to, inter a/fa (Sec. 13(10)), "partsman or mechamc primarily engaged in selling or servicing automobiles ... trucks. . if em- ployed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to ultimate purchasers." 13 Alleged in the complaint as a layoff of Shephard. 14 The charges in the instant case indicate that George E. Meacham is a grand lodge representative in the Union. 11 It was my observation that Respondent produced records that the General Counsel requested through subpena. Regarding business records, losses, and so forth, Dreiling testified that he had records to substantiate his statements. He was not requested to produce such records by the General Counsel and Respondent did not offer such records in evidence. 16 At one point Respondent's counsel referred to the months as December, January, and February. 17 We have earlier noted that at one of the preelection meetings with the employees, Dreiling had evidently in mind some prospective cutbacks since, in expressing opposition to a union he had said, "if I can't do it the way I got to cut down here and there, and if it is going to aggravate this man or this man, then I can't stay in business." [If a union means that I cannot make cuts when I deem it essential to the business and if cuts among individual employees affected make them unhappy, then I cannot continue in business.] 18 Dreiling testified that he commenced reducing hours of work the day after the election. 11 Where two sets of hours appear for C. Dreiling and Glenn, the smaller number represents extra work they sought and received. This extra work involved different work than their regular job and included janitorial type duties at a lower rate 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As we have indicated, on such evidence as is in the record, limited and undetailed as it is as to many facts, Respondent's evidence as to the poor state of its business has not been controverted. Despite statements made by Dreiling on January 5, the evidence warrants the conclu- sion that the general subsequent curtailment of working hours had economic justification and was so motivated. At least, in our opinion, the preponderance of the evidence does not justify a conclusion that the retrenchment would not have occurred but for the union victory in the election. The General Counsel points to the preferential treat- ment accorded to mechanic Cyril Dreiling as compared to the other mechanic, Shepard. The evidence before us indicates that even in the preelection period Cyril Dreil- ing worked a greater number of hours than Shepard.20 Cyril Dreiling was about 50 years old and had been a mechanic for many years, including about 18 years at Bill Dreiling Motors. At the latter company, according to L. J. Dreiling, his brother Cyril, had also worked more hours than the other mechanics. Cyril was, of course, the brother of Bill Dreiling and L. J. Dreiling and this fact, plus the fact that he had a large family and was evidently interested in working as much as possible, provide a reasonable explanation for the situation. Moreover, the instant record shows that Cyril had had extensive training at mechanics' schools of various car manufacturers and the record indicates that be was a highly experienced and competent mechanic. Although Cyril Dreiling was not a supervisor, other mechanics at the shop would consult with him when there was a mechanical problem in the course of the work. This man was also versatile in electri- cal and plumbing matters and consequently a generally good man to have around. A consideration of all factors does not persuade us that the General Counsel has sustained the burden of proof to establish that the preference in amount of working time accorded to Cyril Dreiling in comparison to Shepard was illegal preferential treatment. Obviously, Respondent could have spread the work more equitably between Cyril and Shepard but, in our opinion, it was not required to do so. If the Union, after being notified by Dreiling that he was going to make some cutbacks in his business opera- tions, wished to negotiate regarding the details thereof, it was incumbent upon it to so state. As far as appears, it did not do so, nor did it inquire as to the method or other aspects of the cutback. Another aspect of the General Counsel's contentions is that the working hours of the three men who voted for 20 Since the General Counsel secured Respondent's timesheets and selected those that it introduced into evidence, we cannot assume that in the period August 1966 to December, a different pattern would be shown as to the preelection period than that shown by the two or three preelec- tion timesheets offered in evidence by the General Counsel. 21 Nobody knows how the men voted and in that sense Dreiling's testimony may be considered correct. However, the vote was of such major importance to Dreiling and he reacted with such resentment at the fact that the vote was 3-2 for the Union, it is inconceivable that he did not formulate a conclusion as to who voted for or against the Union. This was a small shop and he knew the men well and had discussed the Union with them at several meetings Glenn had spoken against the Union and Shepard in favor of the Union. Dreihng's brother Cyril had not spoken prounion and, in view of their relationship and Dreiling 's position that a union would impair his newly started enterprise in which Cyril and Billmg- ton, a Dreiling brother-in-law, were also interested as a source of livelihood, it is reasonable to conclude that Dreiling believed that the two votes against the Union came from Cyril and Glenn, with the remaining the Union, Shepard, Jackson, and Gonzales, were sub- stantially curtailed whereas the hours of the two em- ployees who voted against the Union, Cyril Dreiling and Glenn, were affected much less, if at all. We have stated our opinion, in spite of Dreiling's testimony that he did not know who voted for or against the Union, that he had reason to believe, and, in our opinion, did believe, that his brother and Glenn had voted against the Union, leaving the three union votes to be attributed to the other three employees.21 The fact that the curtailment of hours of Shepard, Jackson, and Gonzales was substantially greater than with respect to Cyril Dreiling and Glenn and, assuming that the former three were believed by Respondent to have voted for the Union, this fact is not sufficient to establish illegal discrimination. Dreiling may not have been displeased about the situation but we have already considered that, as between the two mechanics, Cyril Dreiling and Shepard, the evidence is insufficient to establish illegal preferment for Cyril. Jackson and Gon- zales both worked in the body shop. We have no antiu- nion body shop employee with whom to make a com- parison as to hours worked. Such evidence as the record contains, as we have previously stated, establishes a poor economic position on the part of Respondent and nothing to controvert the asserted need of a cutback. As far as ap- pears, Gonzales and Jackson worked less hours because there was less body shop work. No evidence in the record establishes the contrary.22 As to Glenn, who was a sort of utility man or lot man engaged in starting cars (evidently used cars that were for sale), shagging parts, and cleaning, polishing, and dusting cars, he worked a substantial number of hours both before and after the election. There is no evidence that the available work for Glenn after the election did not warrant the hours worked or that he was performing work normally performed by Shepard, Jackson, or Gonzales.23 As has been stated, Respondent cut back on hours worked after the election. We have concluded that the economic justification advanced by Respondent for cut- back prevails over the contentions by the General Coun- sel. This despite the fact that Dreiling admittedly told the employees after the election that since they wanted 40 hours and since this was one of the reasons they wanted a union, he would see that they worked only 40 hours. We have also found that the preferential treatment accorded to Cyril Dreiling with respect to hours worked in the period after the election as compared to Shepard was not illegal. employees accounting for the union vote. Moreover, Dreiling's appeal to the employees to reject the Union had been principally based on an appeal for loyalty and trust in him. Dreihng testified as to his brother's loyalty in coming with him and assisting him in the new business . He said that he and his brother were "pretty close" to each other. He had no reason what- soever to believe that his loyal brother had not cast one of the votes against the Union. 22 Gonzales left the employ about January 10 after being informed that there was insufficient work for him 22 Apparently, when requested, Glenn did perform some mechanical work but the record is not clear that this was not also true prior to the elec- tion Dreiling testified that Glenn "occasionally" did mechanical work if required The General Counsel asked, "Didn't he do mechanical work after January 139 A. [By Dreiling] He probably did, sure." This is the extent of the evidence on the point and it indicates that Glenn, before and after the election, performed some mechanical work, upon request. Whether this was the work of a full-fledged mechanic like Shepard is not known and the extent of such mechanical work is not shown. L. J. DREILING MOTORS CO., INC. 543 However, there is another aspect regarding the reduc- tion in hours that merits attention since it bears on the al- leged discrimination against Shepard. According to Dreiling, by December 1966, if not earli- er,, he was aware that his sales were off and that he was losing money. He had decided that a substantial cutback in hours of the shop employees was necessary. The two mechanics were Cyril Dreiling and Shepard . For succes- sive biweekly periods after the election, Shepard's hours, from a prior 103 and 93-1/2 hours for the respective two biweekly periods prior to the election, were cut to 77; 43- 1/4; 35-114; 7-1/4; 0; 40; 0; 25. But, in early January 1967, prior to the January 5 election, a newly hired mechanic, Weber, was placed on the payroll. For the biweekly period ending January 7, Weber worked 40 hours, which, in view of his initial hiring date, indicates that he worked the 40 hours in 1 week. For the 2 weeks, ending in the same payroll date, January 7, Shepard had a total of 77 hours, indicating that in the last week, when Weber worked 40 hours, Shepard worked about 35 hours, probably less. The figures for the following biweekly periods are: January 21, Shepard, 43-3/4; Weber, 85; February 4, Shepard, 35-1/4; Weber, 57; February 18, Shepard, 7-1/4; Weber, 2; March 4, neither man worked; March' 18, Shepard, 40; Weber, 31; April 1, neither man worked; April 15, Shepard, 25; Weber, 0 (Shepard discharged, April 13); April 29, Weber, 73-3/4; May 13, Weber 102-3/4.24 Although Respondent has testified regarding the poor state of its business and the need for retrenchment and while we have concluded that this was, in general, the fact, we also find that Respondent manipulated the situa- tion to discriminate against Shepard. We have described the facts pertaining to Shepard and Weber, above, and these facts and others in the record, in our opinion, are given no adequate explanation by Respondent . Dreiling states, in the face of evidence in the record that we have previously cited, that he did not know which employees were union advocates and who had cast the three votes for the Union. Dreiling then asserts as one of the reasons for the cutback in hours, and he also told this to the em- ployees on January 5, that since they had said that they wanted a union because it would mean a 40-hour week, they would get a 40-hour week. Obviously, the prounion employees were the ones referred to, principally Shepard. And, immediately after the election, Shepard suffered a severe cut in hours.25 In fact , from that point on, he never had even a 40-hour week. At the same time the Weber situation was as described above. Cyril Dreiling and Glenn, never had as little as a 40-hour week but substan- tially more, and their hours, on average, after the election, were substantially the same as before. Regarding Weber , Dreiling's explanation is that "when his [Weber's] hours were cut back, he brought in his own customers." Weber had previously worked in another shop and apparently had some following among former customers. When Weber brought in a customer, Respond- ent paid Weber for the hours worked on the customer's car, with Respondent presumably billing the customer for the repair job. Dreiling states that when Weber's hours were down to the point "where he was working about the same hours Mr. Shepard was ... he left us to find another job." After Shepard's discharge, Weber returned to work for Respondent at substantially increased hours. Since Dreiling's testimony regarding Weber was no more precise than we have described it, some analysis is required. First of all, there is no explanation why Weber was hired at a time when business was off and when a cut- back in hours for present employees was imminent. Since Dreiling states that Weber started bringing in his customers after his hours were cut, it is necessary to determine when this occurred. The first week Weber worked for Respondent he worked 40 hours. Evidently, then, he did not start work with a cut in hours. At the start, there was nothing to cut since this was initial em- ployment. Presumably, Weber did not start bringing in customers at that point. In the next 2-week period , ending January 21, Weber worked 85 hours, so there was an in- crease in hours rather than a cut. Shepard worked 43-3/4 hours in the same period. Dreiling's explanation about Weber's customers, therefore, does not explain the hiring of Weber or the fact that he worked more hours than Shepard, at least to January 21. It certainly is not clear that Weber started bringing in customers after his first week of employment. In the February 4 pay period, Weber worked 57 hours and Shepard worked 35-1/4. In the following pay period, February 18, Shepard had 7-1/2 hours and Weber had 2. This latter period apparently was when Weber quit as described by Dreiling. The question is, when did Weber, start bringing in his own customers . It would seem that this occurred during the February 4 pay period, since this was the first period since Weber had been hired that he averaged less than 40 hours a week. In any event, the conclusion is warranted that Respond- ent put Weber to work at a time when it knew that it was going to cut back the hours of Shepard. It is also clear that Respondent's available work for mechanics was divided among Cyril Dreiling, Shepard, and Weber and that, but for the hiring of Weber, there would have been more work for Shepard. Further, whatever proportion of Weber's work came from Weber's customers, he also had other work from Respondent on vehicles of Respondent's customers. Prior to a cutback in Weber's hours, both he and Shepard were performing repair work on Respond- ent's customers' cars. It was only when Weber's hours on the foregoing work were cut that Weber began bringing in his own customers . Considering that, after the last-men- tioned point, Weber was supposed to be working on his own customers' cars, it is striking that in the pay period, February 18, both his and Shepard's hours showed sub- stantially the same drastic cut in hours. Since the cut in Shepard's hours was attributable to a lag in Respondent's customers , this would appear the most appropriate time for Weber to have resorted to his own customers. The parallel drop in total hours for both men in this period tends to indicate that in this and probably in prior periods, Weber's hours reflected work for Respondent's customers and not simply work for his own customers. We have previously discussed various changes in con- ditions of employment made by Respondent after the election. Among other matters, we found that Respond- ent did not generally eliminate the uniform allowance as it had threatened to do on January 5. However, there is 24 Throughout, of course, Cyril Dreiling worked more hours than either Shepard or Weber and always more than 40 hours a week. 15 As did Jackson and Gonzales. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence of some discrimination against Shepard regard- ing uniforms. Respondent's practice was to pay for one coverall per man each week; extra or additional coveralls or parts of a uniform, if used by an employee, were deducted from his pay. Evidently, the rental cost of one coverall is about $1.30 or $1.75. For the biweekly pay period ending February 18, 1967, Respondent, according to Dreiling, began charging employees for the actual number of uniforms used in the period that exceed the quota of one uniform for which Respondent still paid.26 In the February 18 pay period, Shepard worked a total of 7- 1/4 hours in the entire 2-week period. A sum of $3.50 was deducted from his pay for uniforms. This indicates that he used one uniform for which Respondent paid, plus two additional uniforms at $1.75 each; or, he used one or two uniforms, and Respondent paid nothing.27 There is no ex- planation of how Shepard could have used three uniforms to perform 7-1/4 hours' work. If he used two uniforms, Respondent apparently paid for neither. Cyril Dreiling, in the same period, worked 105-1/4 hours, and was also charged $3.50, indicating the use of three uniforms. Shepard did not work in the next period, ending March 4, and there are no deductions. In the March 18 period, Cyril worked 110 hours and was charged $3.50; Shepard worked 40 hours and was charged $3.50. Shepard did not work in the period ending April 1 and was not charged. In the April 15 period, Cyril worked 11-1/4 hours and was charged $3.50; Shepard worked 25 hours and was charged $3.50. Shepard was discharged April 13. In the absence of explanation in the record, the most reasonable conclusion from the above facts is that in the pay period ending February 18, Respondent either paid for no uniform used by Shepard or made excessive uniform deductions from his pay. This is also probably true of the periods thereafter although it is not quite as evident as with respect to the February 18 period. These observations are consistent with Shepard's testimony that Respondent paid for none of his uniforms after the elec- tion, although probably, as we see it, this new treatment did not commence until the period ending February 18. Cyril Dreiling's testimony that with respect to himself, or Jackson's testimony, that Respondent still paid for one uniform per week for each of them, is not inconsistent with the facts pertaining to Shepard. For the reasons previously stated, we are of the opinion that Dreiling be- lieved that Shepard had voted for the Union. Moreover, on February 15, prior to the notable deductions for the February 18 period (checks with deductions being paid on February 22), Dreiling learned that Shepard was the union steward. On that day Shepard and Waggoner, the union representative, met with Dreiling for the first time to commence contract negotiations. Dreiling, on that oc- casion and at a subsequent meeting, expressed opposition to Shepard's presence querying whether he was authorized to represent the other employees. Dreiling's knowledge of Shepard's role in the Union confirmed Shepard's prior manifestations to Dreiling that he was prounion. These factors are to be evaluated together with Dreiling's bitterness against those who had voted for the Union which necessarily would, a fortiori, be additionally directed against the manifest leader among the prounion employees, namely Shepard. The discriminatory treat- ment accorded Shepard regarding uniforms followed within a few days after February 15. Shepard was discharged on April 13, 1967. Dreiling testified that the employee was discharged because of comebacks, i.e., work that had been performed by Shepard that was later returned by the customer, with ad- ditional work to cure the defect having to be performed by Respondent without cost to the customer. Shepard had been a mechanic practically throughout his working career. As we have seen, he had worked as a mechanic at Bill Dreiling Motors for 8 years where L. J. Dreiling was the service manager.28 Cyril Dreiling had also been a mechanic at Bill Dreiling Motors throughout Shepard's employment at that Company. Both L. J. and Cyril Dreiling knew Shepard and his ability as a mechanic and presumably knew whether he was a reliable em- ployee or not. L. J. Dreiling solicited Shepard to come to work with him as a mechanic in the new business that Dreiling started on August 1, 1966. It is reasonable to as- sume that Dreiling, in commencing a new business ven- ture on his own, would not have solicited Shepard, unless, based on his knowledge of Shepard and his record as a mechanic at Bill Dreiling Motors, he had confidence in Shepard as a mechanic. Since Cyril Dreiling, a highly ex- perienced and skilled mechanic, also came with the new enterprise at the same time as Shepard, he was in a posi- tion to have pointed out to his brother that Shepard was not the right man for the new shop, as to ability or relia- bility, if Cyril believed that such was the case. But nothing of this nature occurred, and from August 1, 1966, to the end of 1966, Shepard was a satisfactory mechanic at Respondent's shop. There is no evidence of criticism or dissatisfaction with his work during this period. Obviously, Shepard, as well as any other competent and experienced mechanic, was not perfect. Shepard testified that over the years he had comebacks on his work. In our opinion, a substantial number of owners of about 80 million cars in the United States have had some experience with comebacks, i.e., having to return un- satisfactory repair work to a garage. But comebacks per se are not generally an abnormal situation in automobile repair. The nature and circumstances of the cause and the responsibility for the comeback is a critical factor. Even clear mistakes by employees in business and industry, generally, do not, in most instances, result in discipline or discharge absent definitive incompentence or careless- ness. Dreiling, in fact, testified that every mechanic has some unsatisfactory work. We have previously seen that Dreiling was strongly op- posed to having a union in his shop. Before the election he told the employees at a meeting that if, with a union in the shop, he could not run the shop as he wished and as he thought it should be run then, if the Union wanted to, it would have to force him out of business. At the first of these meetings with the employees that Dreiling con- voked, no one spoke up when he asked why-they wanted a union or what were the advantages they saw in a union. But, at a later preelection meeting, Shepard said, accord- ing to Dreiling, that one of the advantages of a union was a 40-hour week. Shepard also said at the meeting, accord- 28 Through error, a new office girl had neglected to make the proper deductions for extra uniforms prior to this time. 27 Shepard contends that after the election, Respondent paid for none of his uniforms. The record contains no documentation of uniform deduc- tions other than the timesheets showing the total amount of uniform deductions for individual employees for each biweekly pay period. We are citing from these timesheets. 21 L. J. Dreiling had been with the Company about 20 years, L. J. DREILING MOTORS CO., INC. 545 ing to Cyril Dreiling, that they have unions all over the country and that the Union was coming into this shop. The foregoing incidents occurred in December 1966, be- fore the January 5 election. It is our opinion that Dreiling had reason to believe and did believe at That time that Shepard was prounion. After the Union won the election on January 5, by a vote of 3-2, Dreiling, on the same day, called a meeting at which his bitterness and disappointment at the result was clearly manifested. He stated that since employees had mentioned a 40-hour week as one of the reasons they wanted a union, that is what they would get.29 Dreiling also stated to the employees that he was cutting out all benefits and privileges such as coffeebreaks, Blue Cross contributions by the Company, holiday pay, and uniform allowances.30 Dreiling told the employees that by voting for the Union they showed that they did not have trust in him and what he had told them; he said that anything that happened thereafter would be attributable to, and be the fault of, the three men who had voted for the Union.31 The comebacks, for which Respondent asserts that it discharged Shepard, were two, the Sichler Ford job and the Howard truck job. Although Dreiling states that he did not discharge Shepard because of the Johnson comeback, he described the Johnson incident as an exam- ple of repeat or comeback type work for which Shepard was responsible. No other matters appear in the record regarding Shepard's alleged deficiencies. Johnson was an old customer. Dreiling, when asked "when did that [the Johnson] episode take place" stated that Johnson had a tuneup "the latter part of the year 1966, then he had that work done and the plugs put back in. . . ." Shepard installed the new spark plugs and John- son was charged for them. At some later date, apparently March 8, 1967, the spark plugs were allegedly found to be loose or so Johnson reported to Respondent.32 Johnson did not bring the car to the shop so neither Dreil- ing nor anyone else could verify the customer's assertion. Johnson had new spark plugs installed "at a filling station over in Aurora" and presented the bill to Respondent "because we had the job originally," according to Dreil- ing. Respondent paid Johnson for the spark plugs that he had installed at the filling station. Dreiling was asked: Q. How many months after or weeks or what- ever, after he [Shepard] did this job on Johnson's car, was it that it came back? A. I'd have to check my records. When you have a customer for a long time, you pay it.... The culpability of Shepard in the above matter is highly dubious. What appears is that Respondent, in the interest of good customer relations, paid the customer for a set of spark plugs, and did not verify or argue with the customer over Respondent's responsibility. Neither Respondent's nor Shepard's responsibility is apparent. If the plugs were installed loosely, i.e., improperly in December, the opera- tion of the engine would have been impaired initially. A 2-month lapse between installation and the report of al- leged loose installation of spark plugs, the latter condition being unverified by Respondent, indicates that Respond- ent's act of reimbursement was a generous gesture to an old customer. Aside from the dubious nature of Respond- ent's or Shepard's responsibility for the looseness, the normal remedy for looseness in spark plug installation, particularly for relatively new plugs, is to simply tighten the plugs, a job involving a matter of minutes. The Sichler Ford incident involves a used 1963 Ford passenger car sold by Respondent to a man named Sichler. The car was sold about January 5, 1967. After the car was sold, according to Dreiling, it was found that "it smoked and used oil something terrible." Although the car had been sold without a guarantee, Dreiling decided to repair the engine "to keep a customer happy." It is fairly apparent that the engine in the Sichler Ford, 3 or 4 years old in January 1967, was not in the best of condition.33 We do not know the mileage on the engine but it was probably substantial. The record discloses that it was a V-8 engine and Shepard described it as a "hot" or "souped up" engine. This indicates an engine of high horsepower and high compression. When such an engine reaches the age and condition of the Sichler Ford, there are a great many things that can be done or not done in a repair operation, depending on to what condition it is desired that the engine be restored and how much you wish to spend on parts and labor. 34 Dreiling's decision to repair the Sichler Ford engine was transmitted to Shepard, the mechanic, by a work order, written up by Billington, the service manager.35 The work order said to overhaul the engine. Such an order is rather general since a complete major overhaul would be equivalent to rebuilding the engine whereas simply installing new piston rings could also qualify as an overhaul. Shepard tore down the engine. This means in substance that he removed the cylinder head and the oil pan, possibly the manifolds, so that the internal parts of the en- gine could be viewed. Shepard concluded that the engine 21 We have discussed this aspect at an earlier point. 31 In addition to the various evidence concerning the January 5 speech previously considered, we mention that Respondent's counsel, in questioning Dreiling about Company Blue Cross contributions, asked: Q. Did you, ever at any time threaten to stop that? A. At the one meeting right after the election. 31 Respondent's counsel asked Dreiling, Q. Did you, on or about the 5th of January of 1967, tell the em- ployees or any of the employees that the three who voted for the Union were responsible for whatever happened from then on. A. I don't know how I said it. Q. You what? A. I don't remember exactly how I said it; I get a little carried away; I don't know. 32 As testified to: Q. What date was this last? A. Tom Johnson on, 3-8 .... "The basic internal combustion engine has been manufactured, repaired, and used in this country and all over the world for over 50 years. It is still used in about 99 percent of the cars today. The basic engine has remained the same although it has been refined and developed over the years. The basic mechanical elements of the engine are so well known and so well documented in many manuals and textbooks that we have taken official notice of these mechanical principles in our consideration of the evidence pertaining to the Johnson, Sichler, and Howard repair incidents. 34 The old engine can be removed and a new engine can be bought from the Ford factory (in the case of this car) and installed. This is very expen- sive. Or a remanufactured engine, a used engine that has been completely rebuilt in a factory engaged in such work, can be bought and installed. Or, various parts may be replaced in the car engine and various operations may be performed thereon What parts and what operations are chosen in the last-mentioned situation depends upon the considerations mentioned above in the text. as Billington was not a mechanic but he had been in the business for a substantial period of time at Bill Dreihng Motors and then with L. J. Dreil- ing in 1966. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cylinders should be rebored because of excessive wear and the pistons "were terribly loose." Shepard so advised Dreiling but the latter said, no, stating that he did not wish to spend that much money on the job.36 Shepard then in- stalled new piston rings, connecting rod bearing inserts, main bearing inserts, and had the valves ground. The foregoing probably is an average overhaul and Dreiling had given a clear indication that he did not wish to invest too much in the Sichler Ford. Indeed, since Dreiling was under no obligation to overhaul the car, any repairs were, in effect, deductions from his profit on the original sale. We have no criticism of Dreiling's position but the fact remains that the Sichler Ford left the shop with many things undone if its engine thereafter was expected to be relatively trouble free. Aside from Dreiling's not unreasonable make-do policy in the circumstances of the Sichler Ford, this policy was the general policy of the shop even on repairs for which the customer was paying. This, too, as explained by Dreiling, was not unreasonable. Thus, if a customer brought in a car for repairs, some shops would, by in- stalling all new parts and performing all possible opera- tions, run the bill to a high amount. Dreiling, out of con- sideration for the customer and believing that customers were unhappy with such high bills, followed a policy, as he described it, of being "fair and get the customer by as reasonably as possible. . . ." This commendable policy involves some risks, of course, on the matter of comebacks. But it was the policy of the shop and was set, not by a mechanic like Shepard, but by Dreiling. Absent such a policy of reasonable make-do regarding repairs, the easiest and simpliest course for an hourly paid mechanic was to maximize the extent of the repair job. By maximizing, the mechanic insures more hours of work for himself. Moreover, maximizing would include putting in new parts wherever possible and thus give greater as- surance against comeback. A mechanic operating under a make-do policy, such as was the case with Shepard, ob- viously was subjected to the risk of comebacks. Presumably, an employer, who laid down this type of made-do policy, realized that there was a degree of risk involved regarding comeback but apparently was willing to assume the risk. Comebacks following repairs, after all, are not a unique phenomenon as almost any owner of a car, television, radio, washing machine, dishwasher, air conditioner, lawnmower, or other appliance can testify. After the Sichler car was overhauled in early January by Shepard, as described above, it was returned to the shop on January 30 or 31, 1967. Oil was found to be leak- ing at the rear of the intake manifold. Shepard was not in the shop at this time since his hours had been cut to a total of 35 for the entire 2-week period ending February 4. Cyril Dreiling removed the intake manifold from the en- gine and found that the manifold gasket was not seated properly, thus causing the leakage of oil. Dreiling testified that this job involved about 8 hours of labor and $24 in gaskets.37 Cyril did not testify as to the time he spent on the job or as to the cost of the gaskets used. Dreiling testified that when Shepard came back to work, sometime around the middle of February 1967, Dreiling mentioned to him the fact that the Sichler Ford had come back with an oil leak at the rear of the engine during Shepard's absence and that Cyril Dreiling had fixed it. Dreiling said to Shepard that the repair cost $40 and took 8 to 9 hours. Cyril Dreiling testified that, on the Ford, the intake manifold is installed over a gasket that runs all the way around, front and rear. The witness stated that the gasket is "a little thin gasket" that is placed on a narrow metal strip and "if that happens to slip off when you are putting the manifold on there, why then it leaves a gap" through which oil will leak from the engine. Cyril stated that there was a standard installation procedure, to wit, you "put the gasket on there" and then place the manifold over it. Both Cyril and Shepard agreed in their testimony that the manifold on this car was very heavy and that, in maneu- vering it into position on the engine and over the "thin gasket," it was possible for the gasket to slip out of its correct position. Cyril expressed the opinion at the hear- ing that the gasket on the Sichler Ford manifold must have been installed faultily by Shepard when he over- hauled the engine on January 5. Cyril's testimony in- dicates that in his view the faulty installation probably oc- curred by reason of the gasket slipping out of position as Shepard placed the manifold over it. Shepard states that the oil leakage that occurred on the Sichler car on the aforementioned occasion could have been caused by the gasket slipping while the manifold was being installed; or the gasket could have been moved or forced out of position by blow-by from the engine, the blow-by being attributable to the worn condition of the cylinders and pistons. There appears to be no question that oil was leaking from the car and that the gasket was out of its proper posi- tion on January 30. We are prepared to accept Cyril Dreiling's opinion that the gasket slipped out of position when installed during the overhaul performed by Shepard on January 5. It was Shepard's responsibility to install the manifold and gasket correctly. 38 Dreiling had testified that all mechanics make mistakes which is obviously a correct observation. The implication is that some mistakes are tolerable. The implication of Dreiling's testimony that he discharged Shepard because 36 When the cylinders in an engine, a series of eight round holes in the engine block, are worn, the pistons that move up and down in the cylinder do not fit snugly in the cylinder and this is also true of the piston rings. The pistons themselves, in an old car, will also have undergone some wear. All these factors can affect compression and oil consumption. Respondent's repair shop and most others do not have the equipment to rebore an en- gine. Reboring, therefore, entails removing the engine from the car, taking it to a machine shop for reboring, getting the rebored engine after a half day or more in the machine shop, and installing it in the car. The labor in- volved in removing and reinstalling an engine is considerable and the machine shop, of course, charges for the reboring. A rebored engine requires new pistons and piston rings 37 Cyril Dreiling's rate was $2.70 per hour, therefore, under Dreihng's figures, there was $21.60 in labor and $24 in parts or a total of $45.60. 31 What has been troublesome to us is that if the gasket was out of posi- tion at the time of installation on January 5, the oil leakage would begin immediately. A direct leak like this would be directly reflected in the car's oil consumption and this would occur right after the January 5 overhaul Sichler was evidently quite alert as far as bringing the car back to Respond- ent when it used oil. Dreilmg testified that after he sold the car to Sichler, the latter brought it back to the shop "many times" because it was using oil. Respondent finally overhauled the engine on January 5, as described above The car presumably began using oil immediately thereafter if the manifold gasket had been installed improperly by Shepard. Yet, it is al- most a month later before Sichler brings back the car, a fact more con- sistent with the theory that the gasket moved or was moved by some con- dition subsequent to its installation and that, with this postinstallation oc- currence, the oil leakage began, and the car was then brought to the shop by Sichler. L. J. DREILING MOTORS CO., INC. 547 of comebacks on the Sichler Ford and the Howard Truck is that some mistakes are not tolerable. We agree that some mistakes are not tolerable. The question at this point is whether Dreiling regarded the comeback over the Sichler gasket, above, as a serious dereliction on Shepard's part or was it used as a convenient pretext in a planned buildup in a pattern of discrimination against Shepard that included, in the period following the elec- tion, Dreiling's expressed resentment against those who had voted for the Union and the discrimination against Shepard on the matter of uniforms, hours of work, and the general reprisal of the immediate discontinuance of cof- feebreaks. One indication of the motivation involved is that, in our opinion, both at the hearing and to Shepard, in February 1967, Dreiling exaggerated the cost of the Sichler gasket comeback. We credit Shepard's testimony that the removal of the manifold and the replacement thereof with the gaskets would not involve more than 2 or 2-1/2 hours' work. Dreiling gave the figure of 8 hours work. The work was performed by an experienced and competent mechanic, Cyril Dreiling, and, as indicated, we credit Shepard.35 We also are of the opinion that Dreiling exaggerated the cost of the gaskets. He gave the figure as $24. I do not have access to the price list of various automobile parts dealers. However, there are available the prices of one of the largest national retail merchandisers in the United States, Sears Roebuck and Company. We take official notice of the Sears catalog, Spring-Summer 1967, in which 74 pages are devoted to automobile parts and ac- cessories. At page 862 of the foregoing, intake manifold gaskets for 1958-65 Ford (for engines of 332, 352, 390, 406, and 427 cubic inches) are priced at $1.45. The shipping weight is 8 ounces. We believe that the above products can be regarded as of average good quality and that Respondent, being in the car repair business, can probably purchase automobile parts from its suppliers at a price equal to, or probably lower than, Sears' retail price to mail order customers. However, for the purpose of discussion, we will arbitrarily double the above gasket price to $2.90. This, plus Cyril Dreiling's labor at $2.70 per hour for 2-1/2 hours, gives a total of $10.65 for the Sichler Ford gasket comeback. The figure by Dreiling was $24 for gaskets, plus 8 hours labor or a total of $45.60. The comeback repair was at no cost to the customer so profit mark-up is absent.40 Quite clearly, an employer may discharge an employee for or consider as one of the elements in a decision to discharge an employee the fact that the employee has a comeback on his work. This is true regardless of the cost of the comeback. However, our interest in Dreiling's ap- parent exaggeration of the cost of the Sichler comeback, above, is the manifestation thereby of a discriminatory disposition toward Shepard and a disposition consistent with the other instances cited earlier herein of discrimina- tion against Shepard. In addition to the Sichler Ford matter, Dreiling cited the Howard Electric Company truck comeback as the reason for Shepard's discharge. Howard had over 100 trucks and Dreiling testified that he had the repair work on these trucks which involved a monthly account in the amount of $1400 - $1500. Before considering the Howard truck incident, some comment is in order regarding Cyril Dreiling, in addition to what has previously been said about his background. Although not a supervisor, Cyril was, in effect, Respond- ent's chief mechanic. In addition to being Dreiling's brother, Cyril was the most mature and experienced mechanic in the shop. When there was a question about a mechanical matter of car or truck repair, Cyril was con- sulted. Cyril testified that Shepard consulted - him frequently. A Howard truck was brought to the shop on January 21, 1967. Billington states that the work order he prepared provided for engine overhaul and to check power steering and the winch on the truck. Shepard was assigned the job. Apparently the power steering and winch were all right, or if there was anything wrong on these scores, he corrected it. This conclusion follows from the fact that, on a subsequent return of the truck, the steering and winch were found to be satisfactory. As to the prospective engine work on January 21, Shepard tore down the engine. Cyril testified that Shepard spoke to him about the condition of the engine. Cyril states that one cylinder was found to be gouged and that the piston was bad. There was a discussion whether the engine should be taken out for reboring of the cylinder. The deci- sion by Cyril was not to do the foregoing but to hone the cylinder and install an oversize piston in the damaged cylinder.41 Both Cyril and Shepard checked the condition of the crankshaft with a micrometer to ascertain the con- dition of the throws or journals of the crankshaft .42 Close tolerances are necessary on the throws or journals of the crankshaft since the rod and main bearings fit onto these portions of the crankshaft. If the crankshaft is flat or out of round, it is necessary that it be ground with special equipment in, or from, a machine shop. Very few garages have such equipment or the men competent to operate it. Respondent used an outside machinist for such work. The question of when a crankshaft should be reground is a matter of judgment arrived at when the mechanic checks the crankshaft with a micrometer. In any event, it was decided on January 21 not to have the Howard crankshaft reground. Cyril testified that he expressed the view that the rod and main bearings on the truck should be replaced.43 We are satisfied that the above decisions as to the ex- tent of the work to be performed on the Howard truck and the things to be done and not to be done thereon were basically the decisions of Cyril, the senior or chief mechanic, whom Shepard consulted by reason of Cyril's experience and status. 39 Shepard had removed and installed the manifold and gasket on January 5. Cyril did the job on January 31, and gave no testimony as to the length of time involved 4° Notwithstanding our opinion regarding the approximate cost of the intake manifold gasket, we make no finding thereon and confine our find- ing to the fact that Dreiling exaggerated the amount of labor involved. 41 As elsewhere explained, reboring involves removal of the engine and the use of special equipment. Reboring, in effect, cuts out all defects in the existing cylinder and makes a new, albeit larger cylinder. A hone is an at- tachment to an electric hand drill. It is used while the engine is in the vehi- cle. The hone rotates in the cylinder and smoothes out minor defects but does not have the capability of a reboring machine which can, as in- dicated, cut out a new cylinder. 41 The expression is "to `mike' the crankshaft." The transcript reproduces this as, they "mucked" the crankshaft. Phonetically, the term is closer to "mike" than to "mick." 43 The crankshaft checking necessarily involved disconnecting the bearing caps and the condition of the bearings became thereby visible. 336-845 0 - 70 - 36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing Shepard testified that on an engine over- haul situation such as existed on the Howard truck on January 21, the oil pump should be replaced in order to insure successful future performance. The oil pump is an essential factor in pumping oil to the bearings and so forth in the engine and replacing the existing oil pump in an en- gine overhaul certainly is good insurance for subsequent successful performance of the engine . Cyril of course knew as much, if not more, about the function of an oil pump as did Shepard. Replacement of the oil pump, un- less it is completely inoperative is, once more, one of the things that can be done during an engine overhaul or can be left undone, depending on the policy of the repair shop under all the circumstances. The condition of the oil pump during an overhaul can only be determined by removing it from within the engine, dismantling it, and ascertaining the condition of the parts thereof. Neither Cyril nor Shepard checked the oil pump on January 21 nor did they discuss its checking or replacement. As stated, both mechanics were undoubtedly aware that the oil pump aspect, like the question of reboring a cylinder or cylinders or grinding the crankshaft, was something that could have been done or not done, depending on how extensive an overhaul the shop wished to do.44 It is our opinion that the evidence warrants the conclu- sion that on the Howard overhaul on January 21, Respondent followed its policy of what it considered reasonable make-do. This does not necessarily mean that the policy determination reflected incompetency or negligence , but it did mean that in not doing all the repair operations that, not unreasonably, could have been done' to insure against further trouble, Respondent was taking a calculated risk. In some such situations, the risk might have been proved to have been calculated correctly but, in others, the risk could result in a comeback. As Dreiling testified, the shop performed repairs on the Howard truck on January 21 for which it charged the customer $265 but it could have replaced various parts and performed opera- tions that, according to Dreiling, could have run the bill to $600. Dreiling gave this testimony in explaining the shop's reasonable make-do policy toward customers. The end result of all this was that the engine overhaul on the Howard truck performed by Shepard on January 21, after consultation with Cyril, and, basically, with Cyril's advice and direction, consisted of honing one gouged cylinder; replacing the piston in that cylinder; placing new piston rings on all pistons; replacing rod and main bearing inserts; having the valves ground at an out- side machine shop. The oil in the engine was of course drained out and replaced with new oil. A new oil filter was not installed because, according to Shepard's uncon- troverted testimony, Billington told him not to replace the oil filter.45 Operations neither prescribed by Cyril nor performed by Shepard were: neither the gouged cylinder nor other cylinders were rebored; only one piston was replaced; the oil pump was not replaced; the crankshaft was not reground; there is no evidence that the connect- ing rods were aligned and new wrist or piston pins in- stalled. While there are other things that could have been done, the ones mentioned as not being done, bore a close functional relationship to the limited overhaul that was performed and their omission was a calculated exercise of judgment dictated by shop policy. Dreiling testified that, upon completion of the January 21 overhaul, since "one cylinder was scorred just a little "411 "We" told the Howard people "that it would use a little oil through that one cylinder, trying to take the blame off our back." That is, Respondent was aware that the overhaul was of a limited nature and that the per- formance of the engine would leave something to be desired; and, in order to protect Respondent from sub- sequent complaint from Howard regarding the engine, Respondent told Howard, when Howard picked up the truck, that Howard could expect less than perfect per- formance owing to the scorred cylinder (which had not been rebored, a fact not mentioned). The Howard truck was returned to Respondent on March 14: Billington told Shepard to check the engine. Dreiling states that "we" checked the truck. An oil leak was found to exist at the rear lower part of the engine and Shepard removed the oil pan from the underside of the engine. It was found that the rear main bearing had been burned out and the rear main oil seal had been knocked out.47 Dreiling testified that, when the rear main oil seal was kicked out, the truck apparently had lost oil and it had to be towed to the shop. Dreiling also testified that the Howard people told him that, possibly, at some time after the January 21 overhaul, they might have run the truck with insufficient oil.48 Cyril, as well as Shepard, looked at the engine after Shepard had removed the oil pan. They observed the burned out rear main bearing and the smashed oil seal. Cyril "miked" the crankshaft with a micrometer and recommended a new rear main bearing and a new rear oil seal. The journal on the crankshaft on which the rear main bearing rested was also reground at the same time.49 44 Cyril's awareness of the oil pump aspect is not denied and his testimony implies that he was aware of it since he testified that "I am not quite sure whether we put in an oil pump at that time or not " Shepard's testimony and Billington's, as well as other evidence, satisfied us that the oil pump was not replaced on January 21 and that if Cyril had told Shepard to replace the pump, the latter would have done so as he replaced the bearings at Cyril's suggestion. Shepard was paid by the hours he worked ; he was working very few hours in the period after January 5 and if he was told to replace the pump or felt that he could determine the pol- icy as to the extent of the overhaul he probably would have done as many different tasks in the course of the overhaul as possible. 45 The oil filter is attached to the outside of the engine . It is commonly replaced when oil is changed and is a minor operation quite generally per- formed at a filling station. The function is to filter dirt or particles from the oil so as to prevent abrasion of the bearings and other parts of the engine. The oil pump , on the other hand, is within the engine and cannot be reached unless the oil pan under the engine is removed . On an overhaul, such as occurred on January 21, the oil pan of course had been removed. 48 We have described the facts relating to this cylinder , including the fact that Cyril decided not to have the cylinder rebored. 41 Cyril testified that the rear main bearing takes the major thrust of the engine In short, the power of the engine rotates the crankshaft and the bearings are attached to the crankshaft. The principal power from the crankshaft goes out the rear, on the rear main bearing , and is ultimately transmitted to the drive shaft and the rear wheels. 48 Billington states that there was plenty of oil in the truck on March 13. This, of course, even if true does not establish that, in the month and a half since the overhaul, the truck had always been run with sufficient oil. It is unlikely that the customer, Howard, would have admitted to the possibili- ty that it had run the truck with insufficient oil unless there was some basis for such an admission. Possibly, after the truck developed an engine noise (which would occur because of the burning out of the rear main bearing, plus an accompanying loss of oil because of the condition of the bearing and seal), the Howard people found that the oil was low or absent and had added oil in an effort at correction before bringing the truck back to Respondent for repair. 41 There are separate journals on the crankshaft on which each bearing rests. The main bearings are rear, center, and front with a series of rod bearings interspersed at regular points. L. J. DREILING MOTORS CO., INC. 549 Shepard then installed a new rear main bearing and oil seal. As far as appears this stopped the oil leak. As Billington testified, "we just replaced the bearing ... we [had] told him [Shepard] if that fixed the [oil] leak, go ahead and replace it." The reference "we" and other evidence of participation is indicative that on the Howard truck and on other repair jobs, including the Sichler Ford, there was joint consultation and participation regarding the repairs to be made, involving Cyril, Billington, Shepard, Dreiling, in varying degrees, with Shepard per- forming the actual repair work. There was no charge to Howard for the repairs. At the hearing, Shepard mentioned various reasons why the rear main bearing might have burned out. The truck might have been run with insufficient oil; the truck might have been run too hard too soon after the overhaul on January 21; the bearings might have been of poor quality (at the January 21 overhaul Shepard had told Billington that he did not like the quality of the bearings furnished to him for installation); the new bearing that had been installed on January 21 might have been in- stalled improperly. But, as to the latter, Shepard stated that there was only one way to install the bearing and to install it improperly, i.e., backwards, it would have been necessary to force the bearing in. There is no evidence that the bearing had been installed improperly. For a mechanic of Shepard's experience, the installation of a bearing was a task that he undoubtedly had performed dozens or hundreds of times. We do not believe that the bearing was improperly installed or that Respondent had such a belief. About 30 days later, April 13, 1967, the Howard truck was returned to Respondent's shop. Billington told Shepard to check the oil pressure and check on an engine noise. The oil pressure was found to be low. Shepard tore down the engine and found that a connecting rod bearing had burned out. He consulted Cyril and the latter looked at the burned out bearing. It was decided that the throw or journal on the crankshaft supporting the burned out bearing should be reground and the grinding was per- formed by an outside mechanic who specialized in such work. New bearing inserts were then installed by Shepard to replace the burned out bearing. A new oil pump was also installed by Shepard as directed by Billington. This was the extent of the repair work on the Howard engine whose history in the shop indicated that its condition was such that Respondent's policy, at least on this engine, of make-do and patch work repair was quite evidently not going to obviate recurring comebacks. Cyril Dreiling states that on April 13 he suggested that all the bearings be removed and checked but he did not know whether or not this was done. We doubt this testimony for several reasons. Cyril testified that, regard- ing the burned out rod bearing, "we" had the throw on that portion of the crankshaft ground and replaced the rod and bearing. Since an outside mechanic had to come in to grind the crankshaft and since he was paid for what he performed, he shop was aware what grinding this man was told to, do and what work he performed or did not perform. The only grinding that could be performed on the crankshaft was on those throws or journals from which the bearings had been removed. The burned out bearing, as Cyril and others in the shop knew, was the only bearing removed. If the shop contemplated the pos- sibility of crankshaft grinding on other journals, the other bearings would have been removed to expose the crankshaft journals to checking. And if the bearings were removed, they necessarily were exposed to inspection. Since the engine was already torn down, the removal of the other bearings would have been a relatively easy and brief job. But none of these things were done and, in our opinion, were neither directed nor suggested. The shop ordered an outside man to come to the shop and grind one journal. This is what he did and the shop, including Cyril, Billington, and Dreiling knew it.50 If Shepard had been directed to check all of the other bearings he would, in our opinion, have done so since he was paid for his time and his hours had been drastically reduced. If the shop was in- terested in having the other bearings checked, Shepard would have been directed to do the work and, when the bearings were taken down, they would have been in- spected by Cyril and others in the shop to decide whether particular bearings, or which ones, should be replaced and should have their crankshaft journals ground when the crankshaft man came to the shop to grind the journal for the burned out bearing. What occurred, in our opinion, was a shop policy deci- sion, involving Dreiling, Cyril, and Billington. Shepard's role was to tear down the engine and discover the im- mediate problem. The minimum repair was to grind that crankshaft journal and to install a new bearing. How much more the shop wished to spend on the repair, in labor and materials, was a policy decision by the shop and not by Shepard. The latter was being paid for hourly labor, and new parts, of course, did not come out of his pocket. As with the March 14 repairs, the April 13 repairs were being done by the shop without charge to the customer since the shop had overhauled the engine on January 21 for $265. Dreiling described the situation and makes it clear that shop policy was determinant as to repairs on April 13 as had also been the case previously. According to Dreiling, when asked at the hearing whether the mechanic assigned to a job was given a general man- date to do whatever was needed on the motor, We don't have a large operation out there. It is a small one, and usually, [when a vehicle comes into the shop], they [Cyril, Billington , Shepard] just talk to each other and they say, well, like on this one here [the Howard truck burned out bearing incident on April 13], we turned the one throw [on the crankshaft] ; we realized we were going to have to pay for everything so we were going to go, try to get back, being it was a come-back, we were going to try to get back [to get by], naturally as cheap as possi- ble .... [the shop wanted to make the minimum in- vestment in time and labor on this come-back job and this is what was done; it was a policy decision, ulti- mately set by Dreiling, plus Cyril and Billington, with Shepard being primarily the performer of the work decided upon]. Respondent's policy of endeavoring to get by "as cheap as possible" on the Howard truck comebacks was also true as to the Sichler Ford comebacks. In the matter of these two vehicles, Respondent's pol- icy did not work out very well. After the April 13 repair of the Howard truck involving the one rod bearing, the truck went about 2 miles after it was taken from the shop by a Howard driver. The truck broke down and was returned to Respondent's shop evidently on April 14. Billington states that it was the day after the rod bearing 10 Dreiling testified that "we" had one throw turned (ground). 550 DECISIONS OF NATIONAL had been installed by Shepard . Apparently, Shepard had been already discharged and did not participate in anything that occurred when the truck was returned the last time. Dreiling states that on this last return to the shop, the motor was taken down and it was found that another rod bearing had burned out. This was an admit- tedly different rod bearing than the one replaced by Shepard on April 13 under the circumstances previously described. At the hearing, Dreiling opined that Shepard might have left the caps loose on the bearing and that this caused the trouble. However, this was not the bearing on which Shepard worked on April 13 so there appears to have been no reason to conclude that he left the caps loose.51 Indeed, at another point, Dreiling states that Shepard, on April 13, should have taken down and in- spected all the bearings , implying that he did not do so and consequently had no occasion to do anything pertain- ing to the other bearing caps either as to loosening or tightening. Cyril, who took down the engine on its last return to the shop, testified that , as to the particular bear- ing that failed after the truck left the shop on April 13, he found that the two bearing inserts had been worn so thin they were like a "knive edge" and that one had slipped on top of the other. He testified that it was also found when the other bearings were removed that three or four were badly worn. As Cyril indicated and as appears to be the fact, the above conditions did not occur overnight but ex- isted on April 13 when the previously described make-do policy of replacing only the one burned out bearing was prescribed by the shop and executed by Shepard. Cyril says nothing about improper installation and there is no evidence that he made any such comment to Dreiling. His conclusion was, "the only thing I can think of' was that the "bearing must have been bad ... it must have been worn pretty bad ... it must have went out, got too loose." In any event , after Cyril's examination , above described, the patching and make-do measures were abandoned. Respondent removed the old engine from the Howard truck and replaced it with an entire engine block. In retrospect , at least, either this measure or more extensive earlier repairs, might have been a better course than that which had been dictated by Respondent's shop policy of minimum repair.52 The last chapter on the Sichler Ford concerning which Respondent's shop repair policy had been the same as with respect to the Howard truck , occurred on April 13, the day when the Howard truck's burned out rod bearing had been replaced. The Sichler car was in the shop that day. Shepard was directed to check the compression. He did so and found no compression in one cylinder and low compression in another . He reported this to Billington as well as his opinion that the engine had either a bent push rod or a loose valve . Billington consulted Dreiling and the latter discharged Shepard , saying that he could not tolerate any more come-backs, citing the Sichler Ford and Howard truck comebacks.53 Without repeating the detailed description and analysis of the facts pertaining to the Sichler and Howard vehi- cles, it is our opinion that the evidence establishes that the one instance in which Shepard performed his work in a deficient manner was early in January when he over- 51 The bearings are held in position in the crankshaft journal by two heavy metal caps or collars that are bolted to the connecting rod. 52 After the Howard truck affair, Respondent's business with this customer declined drastically. LABOR RELATIONS BOARD hauled the Sichler Ford, and then only in a relatively minor manner. In replacing the intake manifold, the thin gasket under the manifold apparently slipped while the manifold was being installed. This resulted in the car being returned to the shop about 3 weeks later with an oil leak, where the above gasket had slipped from its proper position. Of course Respondent could have discharged a mechanic because of the foregoing or for a lesser or no reason. But, in view of Shepard's long history of com- petent and reliable work with Dreiling, we do not believe that the gasket incident, under normal circumstances in Respondent's shop, would have led Dreiling to contem- plate discharging Shepard. We regard Dreiling's exag- geration of the costliness of repairing the gasket, both at the hearing and in speaking to Shepard in February 1967, as indicative of a bias not normally to be expected if only objective factors were involved. Dreiling admitted and everyone knows that mechanics and other human beings, on occasion, do unsatisfactory work. An oil leak in a car due to an improperly seated gasket cannot be regarded as a rarity, even in new cars, albeit everyone will agree that gaskets should not be seated improperly on any car. The Sichler car was a 3- or 4-year-old-used car and the overhaul that was performed on it early in January would not have been performed by Respondent unless the motor was in decidedly poor condition. This for the reason that it was a used car and had been sold without guarantee. Respondent performed the minimum repair at its own ex- pense, but, since this minimum was fairly extensive, it in- dicates that the motor's condition was poor. There were a substantial number of repair operations that were not performed and many parts that were not replaced at the time of overhaul. The omission of the foregoing made the performance and reliability of the engine thereafter problematical. There was a calculated risk involved as to the possibility of future comebacks. Respondent had years of experience in the car repair business and was aware of and took the risk. The risk was the result of a policy decision by Respondent and was not the responsi- bility of the mechanic, Shepard, who performed the repairs and the extent of the repairs pursuant to shop direction. The replacement of the Sichler car push rod and rocker arm on April 13 had nothing to do with Shepard's work on the car. The original overhaul in- volved neither of these parts although they might well have been replaced if a complete overhaul had not been subordinated to the shop's make-do policy in the circum- stances previously described. The same conclusion, in our opinion, is warranted re- garding the Howard truck. If the facts regarding the truck are borne in mind, it is apparent that on the first occasion, January 21, the truck motor was in poor condition. Even under Respondent's limited and make-do policy, a $265 overhaul was necessary. Admittedly, the overhaul could have been more extensive and it left many things undone. But this again was shop policy and not Shepard's. The evidence does not establish that Shepard's repair work on the truck was incompetent or negligent. A number of fac- tors, previously described, could have caused the rear main bearing to fail on March 14. The evidence indicates that the most likely cause was that the truck had been run with insufficient oil, as the customer admitted might have 53 Billington testified that the Ford had no compression in one cylinder and that Cyril then installed a new push rod and rocker arm. The rocker arms of course have a direct relationship to the valves. L. J. DREILING MOTORS CO., INC. 551 been the case. Also, the oil pump had not been replaced at the January 21 overhaul and this would affect the supply of sufficient oil to the bearing. We note that the oil pump was replaced on March 14, as well as the bearing. Further, the truck, as a commercial vehicle, may well 'lave been subjected to severe usage after the overhaul, possibly by a number of different drivers of the Howard Company with varying degrees of competency and sense of responsibility toward a vehicle not owned by them as individuals. Much the same can be said of the burning out of a rod bearing on April 13 and another rod bearing soon after Shepard replaced the first rod bearing pursuant to Respondent's make-do policy of getting by as "cheap as possible" on comeback jobs. Indeed, the fact that the en- tire Howard motor had to be replaced on April 14, in- dicates: (1) this should have been done on January 21; or (2) the January 21 overhaul should have been much more extensive than it was; or (3) the limited January 21 over- haul, plus possible severe and negligent operation of the truck after January 21, caused the rear main bearing to fail as well as the subsequent failure of two rod bearings, with confirmation supplied by the fact that on April 14, almost all bearings were found to be severely worn (and it was necessary to replace the motor), a condition that could not have been caused in a few days but probably occurred between January 21 and April 14. On January 21, and thereafter, the extent of the repairs was dictated by Respondent's shop policy and not by Shepard. The evidence does not establish, in our opinion, that the repair operations performed by Shepard were deficient. In view of Respondent's many years in the car and truck repair business, we believe that Respondent was aware of the facts described and analyzed hereinabove. We have presented the facts in detail because we regard it as a conscious oversimplification on Respondent's part to say that because there were comebacks on two vehi- cles on which Shepard worked, Shepard was therefore known to be responsible for the comebacks and was discharged for that reason. It is our opinion that Dreiling knew that Shepard was a good mechanic and a reliable one. Dreiling testified that Shepard "is a good mechanic" but said that "something happened to the man." What- ever happened, apparently did not happen until January 1967, with the advent of the Union. Dreiling said he did not know "whether he [Shepard] had lost faith in us, or what it was." The evidence reveals that this matter of faith and trust in Dreiling on the part of his employees was a pervading factor in Dreiling's attitude toward the idea of having a union in the shop and in his attitude toward a union par- tisan, such as Shepard. In the preelection meeting with the employees in December 1966, Dreiling's theme was that a union was not needed and that the employees should trust Dreiling and have faith in him. Indeed this was Dreiling's approach to Shepard and others in solicit- ing them to come to work with him in his new company in August 1966. After the union victory in the election, Dreiling bitterly told the employees that, by voting for the Union (the three that did), they had showed that they did not believe in him or in what he had said and showed their lack of faith by voting for the Union. As previously described, Dreiling promised immediate reprisals, some of which were carried out as to the entire shop and some that particularly affected Shepard. The very foreseeable consequence of the drastic cut in Shepard's hours after the election was that he would quit, as Gonzales, in fact, did. In the biweekly pay periods, commencing with that ending on January 21, to the period ending March 4, a total of 8 weeks, Shepard worked a total of 76-1/4 hours or an average of 9-1/2 hours per week. While the preferment to Cyril Dreiling on the matter of hours is understandable, a more equita- ble allocation of hours, albeit with the lion's share to Cyril, would be expected, if an employee was interested, as a matter of pure self-interest, in retaining its other mechanic, Shepard. The facts would indicate that Dreil- ing had minimum interest in whether or not Shepard quit and he was probably surprised that Shepard did not leave. This attitude is surprising in one way but is understanda- ble from another point of view. Respondent apparently did not contemplate operating with only one mechanic, Cyril. Why, then, the apparent lack of concern with whether Shepard left or not? The answer is that Dreiling hired Weber early in January when he knew that he was going to cut back on Shepard and others. And when Shepard finally left in April after being discharged, Weber came back and worked substantially full time as con- trasted with the approximately 12-1/2 hours a week that Shepard worked in the approximately 2 weeks prior to Weber's return, when, after his return, Weber immediate- ly worked 73-3/4 and 102-3/4 hours.54 Since Shepard did not do the foreseeable thing, namely quit, Dreiling then turned his attention to Shepard's al- leged incompetency and for the first time in nearly 9 years of the association of the two in automobile repair, Dreil- ing found alleged culpable deficiencies in Shepard's per- formance regarding repair work. These alleged deficien- cies pertained to the Sichler and Howard vehicles, previ- ously described, and occurred in the period between January 21 and April 13, 1967. Shepard testified that at the first contract negotiation meeting, February 15, 1967, at which Waggoner and Shepard were present for the Union and Dreiling for the Company, various matters were discussed. Among other things, Dreiling asked Waggoner on what grounds an em- ployee could be discharged and whether employees could be discharged for comebacks. Waggoner apparently did not answer the questions directly but said, in effect, that an employee should receive a formal warning at some point and should not be discharged unless such a warning was given. As has been indicated at an earlier point, it was at the first contract negotiation meeting, on February 15, that Dreiling learned that Shepard was the union shop steward and that he would participate in the negotiations. At this first meeting and at the second meeting on March 2, 1967, Dreiling challenged Shepard's right to be present as a representative of the employees. These facts are not disputed. Waggoner testified that early in March 1967 Dreiling telephoned him and asked what he, Dreiling, could do about two of his employees, Shepard and Jackson. Dreil- ing said that the work of the two men was not good; that Jackson's work was sloppy and that there were two or three comebacks on Shepard. Dreiling said he could not stand comebacks but, according to Waggoner, Dreiling did not indicate that he was going to take any definitive 54 The indifference of Dreiling to whether or not Shepard quit began im- mediately after the election and before Dreiling had raised any question as to Shepard's competency 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action. Waggoner states that he told Dreiling that the latter would have to do what he felt was necessary. Around March 27, Waggoner states that he received another telephone call from Dreiling. Dreiling said that he thought he should discharge Shepard because "he did not have the work there for him to do" and that Shepard was only getting "a day [of work] now and then." Dreiling ex- pressed himself as feeling that "Shepard was too good a mechanic for these few hours" and indicated that if he, Dreiling, discharged Shepard, the latter "could go some place else and get a good job." Waggoner replied that this was not the way to go about it but that Shepard should be allowed to make up his own mind whether to leave or not. At the hearing, Waggoner stated that Dreiling gave no reason why he wanted to discharge Shepard other than the paucity of work available to Shepard and that the discharge would be, in effect, a favor to Shepard, who could then go out and get a good full-time job. At the hearing, Dreiling did not address himself directly to the foregoing testimony of Shepard and Wag- goner and we credit the substance of their testimony. We also credit Dreiling's testimony which was, in effect, that, on March 9, 1967, he telephoned Waggoner about discharging an employee. Waggoner told him that the em- ployee or employees should first be given a formal warn- ing about his poor work or whatever the deficiency might be.55 Thereafter, on March 9, 1967, Dreiling said to Shepard, "I guess I have to give you a formal warning on repeat work [comebacks]. There is just no way I can af- ford to have repeat work." Dreiling states that he specifi- cally told Shepard what work he was referring to, the Sichler Ford and the Howard truck jobs. Shepard said `'okay. "5s There can be little doubt, in our opinion, that the evidence warrants the conclusion that, after the election, Dreiling wished to be rid of Shepard. We have discussed the cut in hours and other matters at an earlier point. The foreseeable consequence of such action by Respondent was that Shepard would quit. But he did not do so. Dreil- ing then began speaking to the union representative about discharging an employee for comebacks, sounding out Waggoner, on the matter and apparently hoping that Wag- goner would raise no objection and would, in effect, ad- vise or tell Dreiling how to go about a discharge. Wag- goner advised Dreiling that he should first warn the em- ployee of his deficiencies. Dreiling then gave Shepard a "formal" warning on March 9. Several weeks later Shepard was still an employee, nothing having occurred, apparently, in the interim after the March 9 warning, that presented a reason for discharge. Dreiling then took a slightly different tack in his manifest interest in getting rid of Shepard. About March 27, Dreiling told Waggoner that he thought he, Dreiling, should discharge Shepard because he had been able to give Shepard so few hours of work and Shepard was too good a mechanic to be work- Ss Dreiling testified on this matter at various points in the hearing. At earlier stages of the hearing he referred to the date of March 9 or April 9 but it appeared that the witness believed that the date was March 9. At a later stage of the hearing, after being advised by counsel to consult his notes, Dreiling states that he had talked to Waggoner on the telephone the same day and the "Formal warning [to Shepard] was March 9, 4:15 P.M" 56 In view of what Dreiling had said at the January 5 meeting, after the election, and the reprisals that followed, it was probably assumed by Shepard that he could expect less than friendly treatment from Dreiling. Dreiling asked for no explanation and gave his formal warning The response of "okay" was as appropriate as any other under the circum- stances. ing so little. Dreiling, in effect, proposed that he would be doing Shepard a favor by discharging him, since Shepard could then go out and secure a full-time job. Waggoner, however, told Dreiling that Shepard himself should de- cide whether he wanted to leave or stay. It is apparent that from February 15 to March 27, Dreiling was sounding out Waggoner on the matter of discharging an employee . There was an effort to secure either Waggoner's concurrence on discharges or to secure his views on the steps to be taken to accomplish or to pave the way for discharge . If Waggoner concurred on a ground for discharge as mentioned by Dreiling , such as comebacks, or if Waggoner prescribed preliminary steps and Dreiling followed the outlined procedure , then Dreil- ing, no doubt , expected that there would be no repercus- sion from the Union as a result of the discharge. The March 9 warning was then made but Shepard was still around. Then the proposal to discharge Shepard in the latter's own best interest was made but this brought no concurrence from Waggoner. It was apparent , therefore, that something more was required to get rid of Shepard. It is to be observed that the foregoing efforts to sever Shepard from Respondent 's employ, including the formal warning on March 9, occurred when the only comeback on Shepard was the January 31 improperly seated-gasket Sichler Ford incident.57 Yet, as we have seen , Dreiling was already far advanced in a manifest intent to be rid of Shepard. The pretextuous nature of the entire buildup against Shepard is shown by the fact that on March 27, after the Howard truck rear main bearing comeback, Dreiling spoke to Waggoner , not in terms of Shepard's deficiencies , but in terms to the effect that Shepard was too good a mechanic to be working part time and there- fore Dreiling was proposing to discharge Shepard in the latter's own interest.58 A careful consideration of all the evidence persuades us that Shepard was discharged because of his prominence in the Union and his adherence to, and ad- vocacy of, the Union. To Dreiling , Shepard's union ac- tivities were a manifestation that Shepard did not believe in and trust Dreiling, who had made clear his opposition to the Union and its supporters. As a consequence , Dreil- ing took various steps, previously described, to get rid of Shepard. It is our opinion that the alleged reasons for discharge were pretexts and that, but for his union activi- ties, Shepard would not have been discriminated against and discharged. We find that the discharge of Shepard constituted a violation of Section 8(a)(1) and (3) of the Act. The Bargaining The first meeting of the parties was on February 15, 1967. At this and other meetings, Waggoner and Shepard were present for the Union and Dreiling for the Respond- 59 On the evidence, the Johnson sparkplug affair can scarcely be dig- nified as a comeback for which either Respondent or Shepard had any discernible responsibility. 58 At one point in his testimony, Dreiling stated that he spoke "lightly" to Shepard about the March 14 Howard truck comeback. The "light" speaking, according to Dreiling, was because there was doubt that Shepard was at fault for the comeback. As we have previously shown in detail, the overhaul by Shepard was on January 21. The truck came back on March 14 with a bad rear main bearing. The circumstances , earlier described, do not inculpate Shepard in any way and we believe Dreiling had the same opinion L. J. DREILING MOTORS CO., INC. 553 ent. According to Waggoner, at the meeting on February 15, Dreiling said that business was poor and he did not feel that he could afford a contract. He asked that Wag- goner check the financial condition of the Company. There is no evidence that, on this or other occasions, the Union asked for specific financial records or otherwise checked the financial condition of Respondent. Waggoner produced a sample contract and suggested that Dreiling go over it and let him know at the next meeting what Dreiling's position was on the various articles. At the meeting, Dreiling questioned Shepard's right to be present and asked whether he had been elected by the employees. Waggoner replied that the Union had ap- pointed Shepard as shop steward. The next meeting was March 2. Dreiling had a tape recorder set up at the meeting. Waggoner objected and Dreiling put it away. Dreiling again questioned Shepard's status as steward but this was about the extent of the matter on this aspect. The parties then went over the proposed contract. Dreiling objected to the provision that a purchaser of the Company would be bound by the con- tract, saying he could not bind any potential buyer. The Union-shop provision was discussed. Dreiling said that he considered that it would be immoral for him to agree to require his employees to join the Union. The parties discussed checkoff of dues. Dreiling said he had a small business and had only one office girl and he could not agree to the checkoff because of the added expense. The parties agreed on a recognition clause. Dreiling asked what he could do about an employee "who couldn't do his work properly," mentioning employee Jackson. Dreiling also asked if Waggoner had checked on the financial standing of the Company. Waggoner suggested that they attempt to agree on contract language and that they "wor- ry about the finances when we got to it, those parts of the agreement," involving money. Dreiling suggested post- poning negotiations until September when he would have a better idea of what he could afford.59 Waggoner sug- gested that they take care of the noncost items first. After 1-1/2 hours, Dreiling said his business was almost on the rocks and he had to keep an appointment about a loan. On March 23, the parties again met. Dreiling said he had failed to get the previously mentioned loan and saw little sense in further negotiations. He said, however, that "he guessed that he was required to do so" and negotia- tions continued. The parties agreed on a contract article regarding discharges. They discussed job classifications and pay. They reached agreement on one part of the arti- cle relating to shortages in paychecks. Dreiling did not agree to pay weekly rather than the existing practice which was biweekly. Dreiling said that it looked as if his business would have "to fold." He said that he had told his employees who were working regularly that if they could find other jobs they should do so. At the meeting, Dreiling advised Shepard that, if he found another job, he should take it. The parties agreed to meet again on March 30. Thereafter, Waggoner cancelled the March 30 meeting. He testified that he had gotten tied up in other negotia- tions. There have been no meetings since March 23 and the Union had requested none. Waggoner testified that the reason for the foregoing was that he did not have time up until about the time of Shepard's termination, April 13. At that period, according to Dreiling there were only two employees working regularly, Cyril Dreiling and Glenn. Waggoner testified that it seemed to him that, after the discharge, since Shepard was not even working part time, "our interest was quite disseminated in the bar- gaining unit." The witness also said that he had in mind that, on March 23, Dreiling was very pessimistic about his ability to stay in business. As we understand the General Counsel's brief, he con- tends, inter alia, that Respondent's other unfair labor practices support the contention that Respondent was not bargaining in good faith. We do not agree. The evidence, in our opinion, does not warrant the conclusion that Respondent failed to bargain in good faith on a contract, upon request, from February 15, to, and including March 23. We have previously found that certain unilateral changes in conditions of employment were in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW As found hereinabove, Respondent violated Section 8(a)(1) of the Act by threatening its employees with economic reprisals because a majority of the employees had voted for the Union; Respondent violated Section 8(a)(1), (3), and (5) of the Act by effectuating certain economic reprisals as previously threatened; Respondent violated Section 8(a)(1) and (3) of the Act by economic reprisals against employee Shepard; Respondent violated Section 8(a)(1) and (3) of the Act by discharging em- ployee Shepard on April 13, 1967; Respondent did not refuse to bargain collectively with the Union regarding the terms of a contract. THE REMEDY Since it has been found that Respondent has violated certain sections of the Act it will be recommended that it cease and desist from such conduct. In accordance with the provisions of the Act and the precedents of Board and court decisions, it will be recom- mended that Shepard be made whole for his loss of pay by reason of the discrimination against him. More specifi- cally, it will be recommended that Shepard be made whole for his loss of pay from the commencement of the discrimination against him to the date of an offer of rein- statement to his former or substantially equivalent job, less intermediate earnings. The period from the date of discharge, on April 13, 1967, to the date of an offer of reinstatement requires no additional comment. As stated in our decision hereinabove, it is our opinion that Shepard was also discriminated against in the period from January 6 to April 13, 1967, with respect to work- ing hours. Since Shepard would have worked fewer hours after January 6 than he did in the period prior to January 6 because of the poor condition of Respondent's busi- ness, the computation should be based on the following formula: Shepard to be made whole for the difference in the total hours he actually worked in this period and the total hours worked by Shepard and Weber in the period but excluded from the latter total are hours worked by Weber on his own customer's cars when Weber com- menced performing such personal customer work after Respondent cut back on Weber's hours of work. For in- stance, using arbitrary round numbers in an example, if Shepard had 100 hours in January 6 - April 13 period, and Weber had 100 hours in the same period, but 50 of 59 Dreiling testified that he made the suggestion facetiously. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Weber's hours were on his own customers' cars, Shepard should be made whole for 50 hours. The rationale for the foregoing is based on the discrimination against Shepard and the hiring of Weber and the allocation of hours to him at the time when Respondent planned and put into effect a reduction of Shepard's hours. This matter has been set forth in our decision. With respect to work uniforms , in the 2-week period ending February 18, 1967, Shepard worked a total of 7- 1/2 hours and was charged $3.50 for uniforms. The evidence, set forth in this Decision, warrants the conclu- sion that Respondent had bound itself to pay for one uniform, with the employees paying $1 .75 for each extra uniform. Shepard was charged for two uniforms when the evidence would indicate that Shepard used a total of one uniform. We believe that Shepard should be reimbursed. [Recommended Order omitted from publication.]