Lynch-Davidson Motors, Inc.

LYNCH-DAVIDSON MOTORS, INC. Lynch-Davidson Motors, Inc. and Local 1902, Brotherhood of Railway , Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO. Cases 12-CA-4537, 12-CA-4537-2, and 12-CA-4605-2 June 22, 1970 DECISION AND ORDER By MEMBERS FANNING, MCCULLOCH, AND JENKINS On March 5, 1970, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Respon- dent filed timely exceptions to the Trial Examiner's Decision and a brief in support thereof. 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 these cases 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 briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- ' In support of its exception to the Trial Examiner's finding that Respon- dent discharged employee Bratcher in violation of Sec 8( a)(3), Respon- dent points out that Bratcher was a salaried employee, and that the Trial Examiner erred in comparing his tardiness to that of employees who were paid on an hourly basis Also, Respondent claims that the Trial Examiner failed to consider that employee White was also discharged for tardiness, that a parts clerk was needed at 8 a in because the mechanics reported in at 7 30 a in , and that , contrary to the Trial Examiner , Supervisors Rentz and Pye did not have knowledge of Bratcher 's union activities at the time of his discharge Although the record establishes that these points may be well taken, we are convinced , for the reasons stated by the Trial Examiner, that Bratcher's discharge violated Sec 8(a)(3) In so finding , we place primary emphasis on the fact that Bratcher was given a raise and told that he was doing good work shortly before engaging in union activity , Bratcher was never formally warned about his tardiness , based on the Trial Examiner's credibility resolution , which is not plainly erroneous, Supervisor Dobson had knowledge of Bratcher 's union activities , and, I day following receipt of such knowledge , Bratcher was discharged Based on the foregoing, we are convinced that Bratcher was not fired for his tardiness , but rather, as the Trial Examiner found, because of his union activities 841 mended Order of the Trial Examiner and hereby orders that Respondent, Lynch-Davidson Motors, Inc., Jacksonville, Florida, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order as so modified: 1. Following the last word in paragraph 2(d) of the Recommended Order, add the following: "and embody in a signed agreement any understanding reached." 2. Following the last indented paragraph in the notice, add the following: WE WILL bargain with the Union in the aforesaid unit and embody any understanding reached in a signed agreement. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE OWSLEY VOSE, Trial Examiner: Upon charges and amended charges filed by the Charging Party (herein called the Union) on various dates in 1969,1 the General Counsel, on October 17, 1969,2 issued an order consolidating cases, complaint, and notice of hearing. The complaint, as amended at the hearing, in substance alleged that the Respon- dent had violated Section 8(a)(3) and (1) of the Act by discharging Bobby Bratcher and Gerald Carmichael and that Respondent had violated Sec- tion 8(a)(5) and (1) of the Act by refusing to bar- gain collectively with the Union on and after Au- gust 6, 1969, by unilaterally changing the method of compensating unit employees in September and by offering to enter into individual contracts of em- ployment with the employees in September. The case was tried before me on December 2-4 at Jacksonville, Florida. All parties were represented by counsel and fully participated in the hearing. Upon the entire record in the case, my considera- tion of the briefs filed by all parties, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Florida corporation, is en- gaged in the business of selling and servicing Ford Thunderbird automobiles in Jacksonville, Florida. During the calendar year prior to the issuance of the complaint the Respondent had more than $50,000 worth of commodities shipped from out- of-state sources directly to its facility in Jackson- ville, Florida. Upon these facts I find, as the Respondent admits, that it is engaged in commerce May 29, June 18, August 28, and October 6 z All dates mentioned herein are in 1969 unless otherwise specified 183 NLRB No. 79 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the meaning of Section 2 ( 6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local 1902, Brotherhood of Railway , Airline and Steamship Clerks, Freight Handlers , Express and Station Employees , AFL-CIO, the Charging Party herein , is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts Relating to the Respondent's Violations of Section 8(a)(5), (3), and (1) of the Act 1. Background; the organization of the Union In March, upon the recommendation of May & Co., a management consulting firm, the Respon- dent put into effect a new system of compensating its mechanics. Previously the mechanics had been paid 45 percent of the Manual rate3 for the jobs which they had performed, and the Respondent received 55 percent. Under the new bonus incentive plan, the mechanics were paid an agreed hourly rate for the time spent at the shop, as determined by the Respondent's timeclock. A record was kept of the number of hours allotted by the Manual for each operation performed by each mechanic. The time alloted by the Manual on an operation was nor- mally in excess of the time actually taken by a proficient mechanic on a job. (The customer was charged on the basis of the number of hours scheduled for the operation in the Manual.) At the end of each month the number of Manual hours scheduled for each job was totaled for each em- ployee, as was the number of timeclock hours, and the employee received as a bonus one-half of the excess of the Manual hours over the timeclock hours, at the agreed-upon hourly rate. If, as in- frequently occurred, the number of timeclock hours exceeded the number of Manual hours, the employee received a debit of one-half those hours at the hourly rate. Under the plan as explained to the employees, the number of credit and debit hours were to be carried over from month to month for a 6-month period, with the employee receiving payment at the end of each month of one-half of the net balance of credit hours in his account. At the end of 6 months, the employee was to be paid 'The Manual contains a schedule of the time normally taken by an average mechanic to perform various automobile repair operations It is sometimes referred to as the Flat-Rate Manual 4 There is a considerable conflict in the testimony as to whether the em- ployees were informed at the outset that this new compensation plan was being initiated on a trial basis or whether it was being put into effect for an indefinite period in the future In view of my conclusions concerning the nature of the Respondent's refusal to bargain collectively in this case, it is unnecessary for me to resolve this conflict in the testimony , as I am not bas- the entire credit balance in his account and the whole process was to start over again.' The mechanics frequently expressed among themselves and to their supervisiors their dissatisfaction with the new pay plan. After about 2 months, the Respondent's service manager, William Nevin, Sr., and its assistant service manager, Bobby Pye, recommended reverting to the old 45-55 per- cent commission plan. However, Michael Davidson, the secretary-treasurer of the Respondent and its chief executive officer, insisted that the plan be given further trial. On Wednesday, May 21, Gerald Carmichael, the Respondent's front-end man, and Casey Dobbs, one of the Respondent's truck mechanics, visited the union office and talked to William Lytwinick, the local chairman of the Union, and two other union officials. Carmichael and Dobbs informed the union representatives of the men's dissatisfaction with the new pay plan and inquired if the Union could help the men. Lytwinick, after explaining the benefits of organizing and the procedures to be followed in achieving union representation, gave Carmichael and Dobbs each about 30 bargaining authorization cards to be used in signing up their fellow em- ployees. Both Carmichael and Dobbs signed cards that night. Lytwinick cautioned the two men to be careful in their organizing activities to avoid possi- ble employer retaliation. Carmichael and Dobbs promptly launched a drive for employee signatures on the bargaining authorization cards. They talked to their fellow workers during their lunch hours and after work. Carmichael and Dobbs had lunch on Thursday, May 22, at the Knight Out Restaurant with five -other employees. Carmichael and Dobbs succeeded in signing up several employees at this time, includ- ing Bobby Bratcher, whose discharge is involved in this case. The last 3 days of that week Carmichael alone talked to about 45 of the approximately 75 employees in the unit and succeeded in signing up 22 of them. Dobbs was equally active and on Satur- day afternoon, May 24, Carmichael and Dobbs turned over to Lytwinick about 48 signed cards. On Monday morning, May 26, Lytwinick called Secretary-Treasurer Davidson on the telephone and, after identifying himself, stated that the Union had in its possession cards signed by more than 50 percent of his employees and wished to discuss the possibility of bargaining with him on behalf of his employees. Davidson replied, "You send me a letter, and I'll refer it to my attorney. "5 Later, on May 26, the Union filed a petition with mg any finding of a refusal to bargain upon the Respondent 's alleged uni- lateral action in September in abandoning the bonus incentive plan and returning to the 45-55 percent commission plan ' The quoted testimony is that of Lytwinick Davidson testified that he did not recall receiving such a telephone call Lytwinick's testimony ap- pears plausible, the Union having just received bargaining authorizations signed by a substantial majority of the Respondent 's employees, and his testimony as a whole concerning this telephone call contains sufficient details to be persuasive I credit Lytwtmck's testimony above quoted LYNCH-DAVIDSON MOTORS, INC. the Board's office at Jacksonville requesting certifi- cation of the Union as the duly authorized bargain- ing representative of the employees in the Respon- dent's service and parts departments, excluding salesmen , office employees, and supervisors. 2. The discharge of Bobby Bratcher on May 27 Bratcher was hired as a parts clerk in the Respondent's stockroom on November 18, 1968. At the time of his discharge he was assigned to the rear parts window along with Virgil Dobson and Benny Wilson. The latter had been newly assigned to the rear parts window and Bratcher was in the process of training Wilson for this job at the time of his discharge. The rear parts window serves the Respondent's own mechanics exclusively. About 3 weeks to a month before Bratcher was discharged he was informed that henceforth he would handle all the body shop orders. About a week before Bratcher's discharge, Ceilon Rentz, comanager of the parts department, told Bratcher, "You must be doin' a good job in the body shop ... Because I haven't had any complaints .... As found above, Bratcher was among the first to sign a union card and at the time of his discharge he was the only stockroom employee who had signed a card. Carmichael and Dobbs had asked him to see if any of the other employees in the stockroom were interested in signing up in the Union. On Saturday, May 24, or Monday, May 26, Bratcher spoke to David Mincy about the Union in the inventory room, and expressed the opinion that the Union probably could help the employees con- siderably. On Monday, May 26, Bratcher spoke to Henry Thomas in Joby's Lounge about the benefits flowing from union affiliation. Henry Thomas was another stockroom employee. Thomas stated that he did not want to get involved in the Union. Bratcher also spoke to Benny Wilson, whom he was breaking in at the rear parts window, about joining the Union. This conversation occurred on May 26 in the presence of Carmichael and Dobbs, who were at the window awaiting the delivery of parts. Wilson came up as Carmichael and Dobbs Bobby Bratcher 843 were standing there and Bratcher asked Wilson what he thought about the Union and would he like to sign a union card. While the conversation was in progress Henry Dobson, comanager of the parts de- partment, entered the rear parts area and started to sort some parts at a small table which was separated from the rear parts counter by an aisle 5 or 6 feet wide. The conversation continued with Bratcher and Wilson unaware of Dobson's presence. At this time Dobson was standing with his back to them about 5 feet away. Carmichael mo- tioned to Bratcher to lower his voice and to turn around, but Bratcher failed to grasp the sig- nificance of Carmichael's gesture and the conversa- tion continued with Wilson asking Bratcher whether he had signed a card. After Bratcher told Wilson that he had signed a card, Wilson said that he would like to have a little more time to think about it. About this time Bratcher finally compre- hended the significance of Carmichael' s gestures, turned around, and, seeing Dobson, broke off the conversation and left to pick up some parts. The conversation was carried on in the tones employees normally use in talking with one another.' At the close of work the next day, May 27, Dob- son told Bratcher that he wanted to see him in the office. When Bratcher went into the office, Dobson told him in the presence of Comanager Rentz that in view of his inability to get to work on time they had decided to let him go in order to make an ex- ample of him and to impress upon the other stockroom employees the importance of getting to work on time However, the Respondent's timecards show that Bratcher's tardiness record was better than that of either of the other two employees assigned to the rear parts window, Virgil Dobson and Benny Wil- son, and that it was considerably better than the record of Henry Thomas, another stockroom em- ployee. The actual arrival times of the four men as shown by the Respondent's timecards for the period from Wednesday, April 30, 1969, through Tuesday, May 27, 1969, the day of Bratcher's discharge are as fol- lows: Benny Wilson Virgil Dobson Henry Thomas Wed. 4-30 8.06 8/ 8.00 7.88 7.85 Thurs. 5-1 8.08 8.30 7.80 8.06 Fri. 5-2 8.00 7.96 8 .00 8.30 ° This is Bratcher's credited and undenied testimony not recall seeing the four men at the parts window on the occasion in ' The foregoing findings are based upon the mutually corroborative question testimony of Bratcher, Carmichael , and Dobbs For reasons more fully ° The figures given on this table represent hundredths of an hour instead discussed below I do not find convincing Dobson 's testimony that he did of minutes, as the Respondent's timeclock records time in this manner 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bobby Bratcher Benny Virgil Wilson Dobson Henry Thomas Sat. 5-3 8.24 8.45 7.84 7.90 Mon. 5-5 8.02 7.78 8.14 8.40 Tues. 5-6 7.90 7.88 8.34 8.64 Wed. 5-7 8.00 - 7.82 8.14 8.32 Thurs. 5-8 -- 7.88 8.14 8.22 Fri. 5-9 7.90 7.76 8.10 8.28 Sat. 5-10 7.72 7.94 7.70 8.65 Mon. 5-12 8.06 7.78 8.04 8.15 Tues. 5-13 8.08 7.82 8.44 7.46 Wed. 5-14 8.64 7.96 7.85 8.08 Thurs. 5-15 7.86 7.22 7.85 8.68 Fri. 5-16 7.95 8.42 8.05 8.04 Sat. 5-17 7.92 8.54 -- 7.96 Mon. 5-19 7.55 7.90 8.25 8.25 Tues. 5-20 7.98 8.06 -- 8.24 Wed. 5-21 8.06 8.25 8.10 8.58 Thurs. 5-22 8.16 7.94 8.18 8.50 Fri. 5-23 8.14 8.16 7.94 8.34 Sat. 5-24 8.05 7.86 -- 8.48 Mon. 5-26 8.08 8.02 Vacation 8.36 Tues. 5-27 7.98 7.46 " 8.35 Number of days present 23 24 19 24 Number of times tardy 12 9 11 20 Total number of hours tardy 1.54 3.15 1.92 5.73 LYNCH-DAVIDSON MOTORS. INC. 845 The Respondent's contentions in connection with Bratcher's discharge are discussed below. 3. The preelection campaigns of the Union and the Respondent a. The union leaflets Shortly after filing its representation petition the Union started distributing leaflets publicizing the fact that an election would be held. In what was ap- parently the second leaflet, which was distributed on June 2, the Union informed the employees that it had filed an unfair labor practice charge on be- half of one of their fellow employees, and an- nounced a union meeting which was scheduled for June 10. While a number of other leaflets were dis- tributed by the Union, only two were introduced into evidence, and the record is very confused both as the the timing and the precise circumstances under which these two were distributed. An incident occurring on one of the early occa- sions in which the Union handed out leaflets at the gate was the subject of considerable testimony at the hearing. It is necessary to consider this testimony in some detail because of the General Counsel's reliance on it as part of the evidence establishing the Respondent's knowledge of Car- michael's union sympathies prior to his termination and because of the Respondent's strenuous attack on the credibility of Lytwinick, the union chairman, and Carmichael, the General Counsel's witnesses to this incident.9 Lytwinick's version is set out im- mediately below. Lytwinick first testified that the June 2 leaflet mentioned above was the first leaflet distributed by him at the plant. (Lytwinick prepared and had charge of the distribution of all of the leaflets passed out by the Union.) On this occasion Assistant Service Manager Pye walked up and as- serted to him that he was trespassing on private property. As Lytwinick was making a few bantering comments to Pye about the location of the property line, Carmichael approached. Carmichael and Lyt- winick withdrew about 10 feet and conversed for a few minutes. Among other things, Carmichael told Lytwinick that the latter was missing quite a few of the employees. Lytwinick handed Carmichael some leaflets and suggested that he try passing them out. Pye walked along outside the fence and disap- peared. A few minutes later Pye and Davidson walked down toward Lytwinick and Carmichael. After Carmichael identified Davidson to Lytwinick, Carmichael left in accordance with Lytwinick's sug- gestion. Davidson inquired of Lytwinick, "Don't you know there's an anti-solicitation law in this community, in this town?" After a few further ban- tering remarks, Lytwinick replied, "I'm not solicit- ing anytthing; I'm handling out handbills." About this time a police car pulled up and Davidson and Pye spoke to the policeman for a few minutes. Carmichael testified that on the occasion on which he talked to Lytwinick at the gate (he was not sure that June 2 was the date), he told Lyt- winick that he was not getting there early enough, that some of the employees had left earlier and that others left by other gates. Thereupon Lytwinick gave Carmichael a few leaflets. According to Car- michael, while this conversation was going on Davidson and Pye approached from the automobile service entrance and Carmichael pointed out Davidson to Lytwinick. After both Nevin and Pye had taken the stand on the Respondent's behalf, and Pye had denied ever having seen Lytwinick until sometime in July, the General Counsel recalled Lytwinick to the stand where he testified that in his earlier testimony he had confused Pye with Nevin, and that when he had mentioned Pye he intended to identify Nevin. (Lyt- winick had been in the hearing room when both Nevin and Pye testified.) Lytwinick also testified later that he was not sure of the sequence in which the union leaflets were passed out, that he thought that an undated leaflet had probably been passed out a day or two after the petition had been filed; in other words, before he distributed the June 2 leaflet. Neither Nevin nor Davidson were questioned about this incident on direct examination by the Respondent's counsel. However, on cross-examina- tion of Nevin by counsel for the Union, the follow- ing was brought out: Q. . . . Did you not see that organizer sitting in the back of the room handing leaflets to Mr. Carmichael. (Indicating Mr. Lytwinick.) A. I prob'ly did. I don't recall the instance of when it was or if he did. I just know they gave out leaflets to people as they left the buil- din'. Q. And, weren't you out there one day when that organizer was outside talking to Mr. Carmichael? A. Very possibly. Respondent did not recall Nevin to the stand after Lytwinick had testified concerning his confus- ing Pye with Nevin. As stated above, Davidson was not questioned about this incident when later called as a witness by the Respondent. Under all the cir- cumstances I cannot accept the Respondent's ar- gument that this "episode" was "fabricated" and find that the incident occurred as testified to by Lytwinick. Carmichael's testimony that Pye was in- volved in this incident was in error and there is some basis in the record for counsel's contention that this was not an inadvertent error. Con- Thus the Respondent states The episode to which Lytwinick and Carmichael testified is patently a fabrication , and this episode is the only evidence advanced which would show that Respondent was aware of Carmichael's union activi- ties at the time he quit his job 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sequently, I have subjected Carmichael's testimony throughout this case to the very closest scrutiny. b. Davidson's speeches to the employees Commencing on June 10, Davidson read a series of speeches to assembled groups 'of his employees in the shop. The first speech which was read to the employees on June 10 was largely taken up with a discussion of the election procedures, the em- ployees' right to vote for or against a union, the obligation of the employer to negotiate with the majority representative of the employees, and the right of employees to strike if they are dissatisfied with the outcome of the negotiations. Exception cannot be taken with Davidson's talk as a whole. Only at the end, when he cautioned the employees "not to be taken in by a lot of fast talk and fancy promises" made by a union which he characterized in effect as an unknown quantity, did Davidson reveal his displeasure in the recent developments at the shop. In his second series of talks to groups of em- ployees, which were apparently made early in July, Davidson was more frank in expressing his reaction to the organizing activities then in progress at the shop. Davidson prefaced his remarks on these occa- sions by saying as follows: "I think that based on the true facts all of you will agree that we just don't need a union here." In these talks, after pointing out the fallacy of some of the "mudslinging" asser- tions made by the Union in its leaflets, Davidson al- luded to the Respondent's pension plan, which he asserted would be put into effect as soon as it was approved by Internal Revenue, and at no cost to the employees. In the fourth and final series of talks to the em- ployees, which was given within a week before the election on August 6, the Respondent's aversion to having a union in the shop was made more clear. In these talks Davidson stated, among other things: Men as you know we will have the Labor Board out here next Wednesday morning to hold an election .... The question you have to answer for yourself when you are alone in the voting booth is: Do you mark an X where it says Yes or where it says No? If you mark yes this means you want to turn your job, your future, your right to speak for yourself and your money over to a man named William Lytwinick. This man works for a union. This union is in the business to collect dues and perhaps initiation fees or assessments and fines from the pay checks of working men like you, who they can either scare, trick, promise or persuade to mark an X on ballots where it says yes. This man will take this money from your pay check this month from someone else's next month. As long as the money comes in, unions are not really concerned who has the jobs. Let me ask you a question. What do you know about this man William Lytwinick, and his background, and his union? What guaran- tees do you have from him that he can or will make any of his promises come true? Has he guaranteed anything to you in writing, has he put up a bond to assure you he can make his promises come true? Well, I know he did not get any one of you this job, ,you did it yourself. His name has never appeared on your pay check. He has never paid your hospital in- surance premiums. He has never paid you for taking a vacation. And the facts are that he never will. Only this Company can and will do this for you. No union can. ... Men, as I see it this is what we have here with this union. His type of promises are cheap. In fact, you can't buy anything with them. There is no way that you can legally force him to keep a single one of his promises. * * * This union has been printing in one of its cir- culars that you men are the "pacesetters" in this area and that many people are watching the outcome with a very special interest. I think this may be one of the things they have said that has some truth to it. * * * * * I have never seen a signed contract that this man has with any group of automobile mechanics, have you? I think that instead of "pace setters" they really mean "guinea pigs." You stick your neck out, you risk your future, you let this man practice on you to see if he can do anything. There are 22 other dealerships in the Jackson- ville that are not voting. Why have these men not filed petitions with the Labor Board? Why should you be the "guinea pigs?" Could it be that they are the smart ones. These other mechanics may know that if this union wins the election that all the company has to do is to meet with this William Lyt- winick or one of his men and talk. They may know that I do not have to agree with any of his demands or to agree to a single one of his promises he made to you just because he asks me to. * * * * ... The final decision of what will change, what will stay the same is up to me, not Wil- liam Lytwinick, not you, but me, big Mike, LYNCH-DAVIDSON MOTORS, INC. 847 poor Mike or by whatever name, it's still up to me .... If you strike, your pay stops, an economic striker can be replaced and when he is replaced he no longer has a job with this company. I have no doubt from what I have been told and from some of the things I have seen right here that if this William Lytwinick were to get you men to strike that we would have troubles. Sugar in gas tanks is a favorite trick of unions, threats to wives and children is standard procedure and in some strike cases, just pure violence or even theft could occur, or has in some strikes. Men, I do not think this union is the right answer. I have had many of you men and em- ployees in other departments tell me the same thing. They are going to vote no. They tell me that they feel that this company has proven to them that it has and will continue to provide them good jobs, good rates of pay and a secure future for them and their families . They tell me that this union has proven nothing to them. Some have told me "Yes, Mike I listened to this man and to the pushers here in the shop, I even signed a card. I made a mistake . This man can not help me . He can only cause trouble. I am going to vote for the company. Men, we all make mistakes. I have made many, but when I know that I have and I have a chance to cor- rect it before any harm is done, I correct it. Many of you will have that chance next Wed- nesday and you can do it by marking your bal- lot no .... 4. The termination of Gerald Carmichael Carmichael was hired in November 1967 and' at the time of his separation from employment on June 17 he was the Respondent 's only full-time front-end mechanic. As found above, Carmichael and Casey Dobbs were the two instigators of the union movement at the plant and in 2 or 3 days succeeded in obtaining the signatures of about 48 of their fellow employees on bargaining authorization cards . On one of the occasions at the end of May or early in June when chairman Lytwinick was passing out union leaflets at the gate to the shop, Carmichael was observed by Davidson and Nevin in conversation with Lyt- winick. On the night of June 16 Carmichael's youngest child became ill and it was after midnight when Carmichael and his wife were able to see the doctor and obtain a prescription for some medicine. Not knowing of any drugstore where he could get the prescription filled at that late hour, Carmichael waited until after he had finished his first few jobs at the shop in the morning to do anything about the prescription . Then, upon completing a front-end job on a car and returning it to the body shop from which he had obtained it, Carmichael left the body shop and went to a drugstore without returning to his front-end rack which was in another building. At the time Carmichael left his rack there was no further work to be done . Carmichael did not either request permission to leave or notify any of his su- pervisors that he was leaving. During Carmichael 's absence Service Manager Nevin had some work for Carmichael to do and, noticing that he was gone from his rack, asked Assistant Service Manager Pye to locate him. Not finding Carmichael , Pye had him paged several times , to no avail. Shortly thereafter Pye noticed that Carmichael's truck was missing from the park- ing lot and he reported this fact to Nevin. Nevin in- structed Pye to bring Carmichael into the office when he returned. Carmichael lives only about a 3-minute drive from the shop and the drugstore was only a short distance from his home . He estimated that his en- tire errand took no more than 25 minutes. Upon his return to the shop Carmichael found an Econoline Van upon his rack and immediately started to work on it . After working a short while, Assistant Service Manager Pye notified Carmichael that Nevin wanted to see him in his office. After a few minutes Carmichael cleaned up and went into the office where Pye joined them. Nevin asked Carmichael where he had been. Car- michael explained that his little girl had been sick, he had been to a doctor the night before, and he had had to obtain a prescription to take home to her. Nevin inquired whether Carmichael had received permission from any of his supervisors to leave . Carmichael said no . Thereupon Nevin, after stating that he could not run a shop with the mechanics leaving at will, told Carmichael that he was going to have to suspend him and would look into the matter further . Carmichael asked how long the suspension would last and Nevin replied, as Carmichael testified, that "right now, it's indefinite. Now we gotta hold a meeting and discuss this." Carmichael angrily protested the suspension, point- ing out that this was the first time he had been "got onto " for any offense. Carmichael left the office with Pye and on the way out asked Pye what he thought "of what was happening." According to Carmichael , Pye said that "he thought it was a helluva deal ." Pye asked Carmichael would he finish the job on the Econoline Van and Carmichael agreed to do so. Upon doing so Carmichael took his time and job ticket up to be punched out. Casey - Dobbs was present at this time and he suggested that Car- michael ask Pye about how long he was to be suspended . When Carmichael did so, Pye told him that he could not say right then, that for the time being it was indefinite . Thereupon Carmichael said that if the Company would not give him some idea of when he was going to be put back to work, he would have to have his money, all of it, that he 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could not afford to wait indefinitely . Pye said that he would get it . Carmichael asked whether he would be kept on the clock until his pay was ready. Pye punched Carmichael 's time and job ticket back in and marked it out at 12:35 , allowing about 1-1/2 hours for lunch and time to prepare his final paychecks. Pye then notified Nevin that Carmichael wanted all of his pay. Nevin said that he would go to the front office and have them start getting it ready. After about 25 minutes Carmichael was sent to Nevin 's office to pick up his checks . At this time Nevin presented Carmichael with the following notice of termination: NOTICE OF TERMINATION Full Name of Employee GERALD CARMICHAEL Hired Reported to Present Department Service Dept. Reason for Recommended Dismissal or Quitting ( Please submit all facts): Left Job Without Notifying Supervisor Temporary Suspension Pending Investigation . Requested Permanent Termination And Immediate Payment Of All Monies Including Bonus, 2 Wks . Vacation Pay and Christmas Club . Request Granted. Separation Pay (is ) ( is not ) Recommended: Employee should be terminated on 6-17-69 W. R. Nevin (Department Manager) From: GERALD CARMICHAEL (Employee) I hereby accept check in the amount of $835 . 31 in full payment of amount due me as of this date from William R. Nevin I further state that I have not been promised any additional pay or remuneration of any kind and that I voluntarily resigned. 6-17-69 (Dated) Carmichael hurriedly signed the notice of termina- tion without reading it carefully , accepted his three paychecks, and left. The foregoing findings are based upon my recon- ciliation of the conflicts in the testimony of Car- michael, Nevin, and Pye . In some instances I have credited the testimony of Carmichael and in others that of Nevin or Pye . The most serious conflict re- lates to whether Nevin told Carmichael at the time of his suspension that Carmichael should get in Gerald Carmichael (Signature) touch with him the following morning to find out when his suspension would be lifted . Nevin testified that he told Carmichael that he would have to look into the matter further and that Carmichael should get in touch with him the next morning. Pye was less certain in his testimony as follows: THE WINTESS : I think I remember-its' been a good while back-that Gerald asked how long the suspension would be for , and Mr. Nevin said that he would have to check it out LYNCH-DAVIDSON MOTORS, INC. and see what we could do, and that he was to contact him the next day. I don't remember if Gerald was gonna con- tact Mr. Nevin or Mr. Nevin was gonna con- tact Gerald. Later, on cross-examination by counsel for the Charging Party, Pye gave the following testimony: Q. (By Mr. Mozer) Mr. Pye, let me take you back to that day when Mr. Carmichael was separated from employment, and you were in the office with Mr. Carmichael and Mr. Nevin, I believe. Now, did Mr. Carmichael ask how long this suspension was going to be? A. I believe he did, yes, sir. Q. Tell me now, to the best of your recollec- tion, what Nevin said. A. I believe he said he didn't know, that he would have to check it out up front, and he would let him know. Q. That is what he said-"I'll let you know"? A. (Nods affirmatively). The inference flowing from Pye's testimony on cross-examination is that Nevin left it open as to how long Carmichael was being suspended and did not commit himself on when he would inform Car- michael as to the length of his suspension. This testimony is in accord with Carmichael's testimony that Nevin would not or could not give him any in- dication of how long he would be suspended. It seems to me that Carmichael's version is more in accord with the logic of the situation. Carmichael's drastic reaction, his abrupt quitting of a job which he had held for over a year and a half, appears to be more likely to be the response to an indefinite suspension than one which possibly could be for only half a day. Nevin impressed me as being willing to tailor his testimony to help the Respon- dent's case.10 Despite the question in my mind about Carmichael's credibility, I believe that in this instance Carmichael's version is closer to the truth than Nevin's. At the hearing Carmichael was shown his daily time and job ticket for June 17. It shows that Car- michael was punched out on the next-to-the-last job performed by him at 9.90 and that he was im- mediately punched back in another job. This last job is shown to have been punched in at 9.90 and punched out at 10.94. The ticket also shows that 1.9 hours was the time scheduled by the Manual to 10 For example , Nevin was quite evasive when questioned as to his obser- vation of Carmichael talking to Lytwmick at the plant gate and he sought to exaggerate the length of Carmichael 's absence on the day of his suspension See the discussion below of Carmichael's time and job ticket for the last morning of his employment. " Although the Respondent 's time and job tickets appear to be designed to show the time actually put in on individual jobs, they are not used this way by the Respondent Instead mechanics are punched in on the clock on arrival at the shop, and even if they have to wait an hour or more for a job 849 perform this last job. Upon examining this ticket, Carmichael testified that he completed the front- end job on the car from the body shop at 9.90 a.m. (his next-to-the-last job), that in accordance with the custom in the shop 11 his ticket was punched out on this job at this time and immediately punched in in the space for the next job, and that it was at this time , 9.90, that he left the shop to go on his errand. Carmichael's testimony continues that in the time between 9.90 and 10.94 he went on his errand, returned to the plant, started work on the Econoline Van, went into the office and was notified of his suspension, and returned to the rack and completed the job on the Econoline Van. This was a job for which the customer was charged for 1.9 hours of the front-end mechanic's labor. While the Respondent has not specifically taken issue with Carmichael's analysis of the data on his timecard, it asserts in its brief that Carmichael was away from the shop for more than 45 minutes. This assertion, in my opinion, is wholly unfounded and I conclude, upon the basis of the foregoing analysis, that Car- michael was away from the job no more than 25 minutes at the most. Indeed, in view of all that went on in this 1.04 hours and the job which Carmichael completed during this period, it probably took Car- michael less than 25 minutes to go get the medicine for his sick child. It should be borne in mind, as indicated above, that Carmichael's absence while punched in on the clock did not work to the Respondent's financial detriment. On the contrary, because of the way the Respondent's bonus incentive system worked, the more time employees put in on the clock, the less incentive bonus they would receive. The General Counsel sought at length to establish that the Respondent was very lenient with respect to allowing mechanics to leave the shop on personal errands and urges that Carmichael was the victim of disparate treatment in being suspended as he was. However, I believe that much of the testimony upon which the General Counsel relies was exaggerated. While employees may have gotten away with absences for as long as 25 minutes without notice to a supervisor, the evidence as a whole warrants the conclusion that ordinarily the Respondent's policy was to require at least notifica- tion before employees took off as long as 25 minutes . The testimony, however, supports the view that short absences , for about 10 minutes, were permitted without permission when work was slack. to come in, all the waiting time plus the time actually spent on the job is clocked up to this first job . When this job is completed the ticket is punched out and immediately punched back in This process is repeated all day Even the lunch period is shown as working time on the job being per- formed at that time It worked to the Respondent's advantage to have the mechanics on the clock " all day long, including waiting time and lunch period, because ordinarily the more "clock" hours there were the less bonus hours the Respondent would have to pay for under its incentive pay plan 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The proceedings in the representation proceeding, Case 12-RC-3318 After a hearing on June 23, the Board's Acting Regional Director at Tampa issued a Decision and Direction of Election on July 11 with respect to the Respondent's employees in the unit stated below: All service department, parts department, and body shop employees employed by Em- ployer at its Jacksonville, Florida, location, in- cluding mechanics, car washers, porters, truckdrivers, inspectors , service writers, dispatchers, inventory, stock, counter, and shipping clerks, warranty and customer clerks, and regular part-time employees; but excluding office clerical employees, car salesmen , guards, and supervisors as defined in the Act. In the election which was held on August 6, 38 votes were cast for the Union, 32 against, and 4 ad- ditional challenged ballots were cast which were not counted because they were not sufficient in number to affect the results of the election. The Respondent thereafter timely filed with the Regional Director Objections to Conduct Affecting the Results of the Election. On October 10 the Re- gional Director issued his Supplemental Decision, Order, and Certification of Representative in which he overruled the Respondent's objections and cer- tified the Union as the exclusive bargaining representative of the Respondent's employees in the unit stated above. The Respondent thereafter duly filed with the Board its Request for Review of the Regional Director's Supplemental Decision, Order, and Cer- tification of Representative. On November 25 the Board entered a telegraphic order denying the Respondent's Request for Review. This was just a few days before the hearing was scheduled to begin in this case on December 2. 6. The Respondent's meetings with employees and its offer of individual contracts In August, Roy Brooks, the Respondent's truck sales manager, was selected as general manager of the Respondent's business, to take office on Sep- tember 2. At this time, which was after the Union had won the election and while the Respondent's objections to the election were still pending before the Regional Director, a few employees conceived the idea of talking directly to Brooks. Dissatisfac- tion was still rife among the employees regarding the bonus pay plan and employees complained among themselves that they had nothing in writing 12 My findings concerning the events at these meetings are based on my reconciliation of the conflicting testimony regarding these events In mak- ing these findings I have rejected, as not worthy of belief, the testimony of certain witnesses for the General Counsel that Brooks offered various con- cessions to the men at these meetings on condition that they get nd of the Union Brooks testified that the men asked about individual contracts out- lining company policy regarding vacations, sick pay, and various other mat- setting forth their rights regarding vacations, hol- diays, sick leave, back commissions, insurance, and other matters. Ferrell Hinson and John Hendricks, two of the employees, took the lead in assembling the em- ployees in Service Manager Nevin's office in the latter part of August to discuss their complaints. After a preliminary discussion among themselves, Hinson called Brooks and asked him to meet with the employees. Brooks came to Nevin's office where the employees voiced their various com- plaints to him, including their complaint concerning the bonus pay plan. At this time Brooks, not having taken office, was not familiar with the way the plan worked. After listening to the men Brooks said that he would try to do what he could about their com- plaints. A second meeting arranged in the same way as the first was held in Nevin's office in September, after Brooks had assumed his duties as general manager. Brooks was again called in after the men held a preliminary discussion among themselves. Brooks announced that the Respondent was going to abandon the bonus pay plan, saying that the men had never liked it, the initial 6-month period had expired, and the Company would revert to the former commission plan. When questions were asked about weekly wage guarantees, Brooks stated that guarantees would be established but that he could not then say the amount of the guarantees. At least one more meeting between the men and Brooks was held later in September. The testimony is very confused as to precisely what went on at various meetings. At at least one of the meetings, apparently in response to a comment from one of the men that he would rather "stick with the Union because they gave us a contract and the more job security," Brooks stated that if the men wanted a contract he would try to get together with them and write up individual contracts. 12 7. The Respondent's refusals to bargain collectively with the Union As found above, the Union initially requested the Respondent to bargain collectively with it on May 26, the same day it filed the petition. This was an oral request by Lytwinick of Davidson over the telephone. The Respondent did not comply with this request. As stated above, on October 10 the Regional Director issued his Supplemental Decision, Order, and Certification of Representatives in which he overruled the Respondent's objections- to the elec- tion. Thereafter the Union, by letter dated October tern and that he commented that this was a reasonable request but that he could do nothing as long as the representation petition was pending How- ever, six employees, including two called by the Respondent , testified along the lines stated in the text above Under all the circumstances I am con- strained to reject Brooks' version and find the facts to be as stated in the text above LYNCH-DAVIDSON MOTORS, INC. 21, requested Respondent to agree to dates for the commencement of bargaining negotiations. By letter dated October 23, the Respondent refused to comply with the Union's request citing the pen- dency before the Board of its Request for Review of the Regional Director's Supplemental Decision. On November 25, the same day that Lytwinick received a copy of the Board's telegram denying the Respondent's Request for Review, he sent the following telegram to the Respondent: DUE TO DECISION HANDED DOWN BY THE NLRB IN WASHINGTON DC NOVEMBER 25TH DENYING YOUR REQUEST FOR REVIEW OF THE REGIONAL DIRECTORS SUPPLEMENTAL DECISION WE REQUEST NEGOTIATIONS ON BEHALF OF YOUR EMPLOYEES BEGIN IMMEDIATELY. PLEASE ADVISE EARLIEST DATE THAT WE MAY BEGIN NEGOTIATIONS. The Respondent admittedly received this telegram. The next day Lytwinick visited Davidson at his office and again requested him to set a date for the commencement of bargaining negotiations. Lyt- winick's credited and undenied testimony about this occasion is as follows: And, I met him at his facilities on Atlantic Boulevard-and, I walked in and I told him, I said, "Well, Mr. Davidson, nice seeing you." I said, "The National Labor Relations Board in Washington has apparently seen fit to not review your case, and I would like to be able to find-to set up some dates as to when we could start bargaining." And, I said, "I don't know whether-do you have a copy of the tele- gram?" And, he said, "No," and I handed him a copy. I said, "If you don't mind, here is a copy," and I handed him a copy, and he read it. I said, "I would like to start negotiating-start bargain- ing immediately." He told me, he said, "You'll have to contact my attorney." I said, "No, I'm contacting you; you contact your attorney, if you choose, but we would like a date set in the very immediate future." The Respondent has at no time complied with Lytwinick's requests that it set a date to begin bar- gaining. Davidson's testimony at the hearing in this case on December 2 confirms that the Respondent's failure to comply with Lytwinick's requests that it start bargaining negotiations was the result of a conscious decision on its part to refuse to bargain collectively with the Union and to test its position in the representation proceeding before the Board and the courts. Thus, Davidson testified as follows: Q. (By Mr. Mozer) Mr. Davidson, will you bargain with the Charging Party at this time? 851 MR. WRIGHT : Objection. TRIAL EXAMINER : Overruled. You may answer. THE WITNESS : I feel that the Board in Washington made a mistake on our appeal, and until this is rectified, I don't think so. Q. (By Mr. Mozer) And, you would like to test that out through the Board procedures- A. That is correct, sir. Q. -an unfair labor practice and to the courts? A. That is correct, sir. B. The Respondent's Contentions; Conclusions 1. The discharge of Batcher in violation of Section 8(a)(3) and (1) of the Act The Respondent contends that commencing on May 21 and continuing through May 23 Comaagers Dobson and Rentz began to discuss what should be done about Bratcher's tardiness problem. Dobson testified that Bratcher's tardiness created a problem for him personally because he had to wait on the mechanics himself when Bratcher was late. Accord- ing to Dobson and Rentz, on May 23 they reached the decision to discharge Bratcher, Bratcher having been late the last three mornings. However, the discharge was to be deferred until the following Tuesday, the end of the pay period, to avoid possi- bility of the stockroom being shorthanded on Satur- day, May 24, when Rentz expected to be away. Dobson and Rentz denied having any knowledge of Bratcher's union sympathies at the time the deci- sion to discharge him was reached. Thus, the testimony of Dobson and Rentz looms large with respect to the Respondent's case regarding Bratcher. In determining whether to accept the testimony of Dobson and Rentz that Bratcher was discharged because of excessive tardiness or, as the General Counsel contends, because of his union sympathies, all of the circumstances of the case need to be taken into consideration. First, there is the fact that Bratcher was not the logical target for discharge for tardiness either on May 21 when Dobson and Rentz assertedly began discussing his alleged short- comings in this regard or on May 23 when they as- sertedly decided that Bratcher should be discharged. Bratcher's two fellow workers at the rear parts window, Benny Wilson and Virgil Dobson, both had worse records for tardiness on May 21 when Dobson testified that they commenced discussing Bratcher's tardiness problem. And Bratcher's tardi- ness record is markedly better than that of Henry Thomas, another stockroom employee, who was retained in the Respondent's employ. Thus in the 6 workdays ending on May 21, Bratcher had been late but once, whereas Benny Wilson had been late 5 of the 6 workdays and Virgil Dobson had been 427-258 O-LT - 74 - 55 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD late 3 of these 6 days. In fact Virgil Dobson was ab- sent 2 of these 6 days and consequently Virgil Dob- son was on time only once in this period. Not only was Bratcher's tardiness record for these 6 days su- perior to both Wilson's and Virgil Dobson's from the standpoint of the number of times tardy, but also it was considerably better in terms in the amount of times tardy during this period; Bratcher being late a total of .06 hours, as compared with Wilson's 1.49 hours and Virgil Dobson's .40 hours. Comparing the records of the four stockroom employees as of May 23, when Dobson and Rentz allegedly decided to discharge him, the facts are as follows: For the 6 working days ending with May 23 Bratcher had been late three times for a total of .36 hours, Wilson had been late four times for a total of 1.01 hours, and Virgil Dobson had been tardy 3 out of 4 days at work for a total of .53 hours. On a longer term basis, using the last 24 working days of Bratcher's employment (the only period for which records were introduced into evidence), Bratcher's tardiness record is superior to that of either Wilson or Virgil Dobson, his two fellow wor- kers at the rear parts window, and is far superior to that of Henry Thomas. Thus, as the table in section III, A, 2, shows, during this 24-working-day period Bratcher was tardy 12 out of 23 days for a total of 1.54 hours, Wilson was tardy 9 out of 24 days, but for a total of 3.15 hours, or more than double the total number of hours that Bratcher was tardy,13 and Virgil Dobson was tardy 11 out of 19 days for a total of 1.92 hours. The logical target, however, if any employee in the stockroom needed to be made an example of with respect to tardiness , was Henry Thomas, who was tardy 20 out of 24 days for a total of 5.73 hours. Yet Thomas remained in the Respondent 's employ and Bratcher was let go. Another circumstance to be considered is the fact that Bratcher was let go abruptly, at the end of the workday on May 27 without any warning that his job was in jeopardy if he failed to arrive on time. At -most, according to Henry Dobson's own testimony, he spoke to Bratcher twice, asking him "to try and be on time in the morning." Such a request plainly did not put Bratcher on notice that his job was in jeopardy if he failed to be punctual. One would think that an employer, faced with a tardiness problem such as in the Respondent's stockroom, would first warn the employees that it meant business and would discharge employees who were continually tardy, rather than precipitate- ly discharge a satisfactory employee whom it had spent over 6 months training . Respondent hired a new parts department employee, Eric Krauskopf, " In view of Dobson 's testimony that when the rear countermen were tardy he was handicapped because he had to wait on the mechanics him- self, it would appear that he would be more handicapped by a few extended periods of tardiness than by a larger number of instances of countermen on May 29, apparently to replace Bratcher, and un- less Krauskopf was familiar with Ford parts it would take a period of training to develop him to the degree of proficiency which Bratcher had acquired at the time of his discharge. The Respondent's attitude toward the Union must also be taken into consideration in resolving the difficult credibility problems here involved. That the Respondent opposed the organization of its employees is evident from the speeches which Davidson repeatedly made to groups of employees. While in the first of his talks Davidson began on a low key, as time went on Davidson became more frank in expressing his opposition to the Union. Thus, Davidson told the employees in the second series of talks that they did not need a union. In the final series of talks shortly before the election Davidson raised serious questions about the Union's interest in the men and the integrity of union chairman Lytwinick, and alluded to the pos- sibility of strikes and violence if the Union suc- ceeded in winning the election. There can be no doubt, from a reading of this fourth speech, that it reflects an attitude strongly hostile to the Union. Although Dobson and Rentz denied that they had knowledge of the interest of Bratcher in the Union at the time they decided to discharge him, the record indicates that they had an opportunity to acquire such knowledge before Bratcher was discharged on May 27. The drive by Carmichael and Dobbs for signatures on bargaining authoriza- tion cards commenced on May 22, and within 2 or 3 days they succeeded in signing up about 48 em- ployees. Employees were not hesitant about report- ing to management that organizational activities were in progress, as the testimony of Supervisors Dobson, Rentz, and Pye establishes. 14 Bratcher was one of the first employees to sign a bargaining authorization card, having done so on May 22, and Bratcher was the only stockroom employee to have signed such a card at the time of his discharge. By May 26, Bratcher had spoken to three other em- ployees about signing a union card. Bratcher spoke to one of these employees about the Union within the hearing of Comanager Dobson. Bratcher's discharge occurred the following day. While Dobson denied witnessing this incident or overhearing this conversation, I am thoroughly con- vinced on the basis of the mutually corroborative testimony of Bratcher, Carmichael, and Dobbs that the incident occurred, and I conclude for the reasons stated below that Dobson did overhear Bratcher conversing with Wilson about the Union on this occasion. Dobson impressed me as being willing to slant his testimony to support the Respon- beingjust a few minutes late " All three supervisors testified that they received reports from em- ployees concerning the current organizational efforts LYNCH-DAVIDSON MOTORS, INC. dent's case.tg In my opinion Dobson's testimony that he commenced discussing Bratcher's tardiness problem with Rentz on May 21 is unbelievable in view of the fact that Bratcher's record at that time was much better than that of other stockroom em- ployees, including the two other employees who _ worked at the rear parts counter. As found above, in the 6-day period ending on May 21 Bratcher had been late only once for a total of .06 hours, Wilson had been late 5 out of 6 workdays for a total of 1.49 hours, Virgil Dobson had been tardy 3 out of the 4 days he worked during this period for a total of .40 hours, and Henry Thomas had been late 5 out of 6 workdays for a total of 1.79 hours. And, as pointed out above, Bratcher's tardiness record on a longer term basis was also better than that of the others. In these circumstances I can only conclude that Henry Dobson was not telling the truth when he testified concerning the circumstances leading up to the decision to discharge Bratcher and the reason therefor. Having been given what in my opinion is a false explanation for Bratcher's discharge, I am con- fronted with the problem of determining whether Respondent's true motive in discharging Bratcher was unlawful . As the Court of Appeals for the Ninth Circuit has said, where "the stated motive is false" the Trial Examiner "can infer" that the true "motive is one that the employer desires to con- ceal-an unlawful motive-at least where ... the surrounding facts tend to reinforce that inference." Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9). The timing of the discharge suggests that antiunion considerations were involved. Although tardiness had been a chronic problem among the Respondent's stockroom employees for some months, the Respondent acted only a few days after a whirlwind drive for bargaining authorizations had been con- ducted among the Respondent's employees and the day after the Respondent had been requested to recognize the Union. Bratcher, the employee selected for discharge, was the one active union supporter among the unorganized stockroom em- ployees and he was discharged the day after he was overheard by his boss advocating the Union to a fellow stockroom employee. Under all the circum- stances, and bearing in mind, as found below, that the Respondent, 3 weeks later, discharged, another i" Thus Dobson testified that most of the mechanics started work at 7 30 a in However, the daily time and job tickets of 10 mechanics for each workday in the payroll period ending June 10 were received in evidence and only I of these approximately 60 tickets was punched in as early as one-half hour before 8 a in All the rest were punched in either shortly be- fore 8 or thereafter . I am convinced from these records and other evidence as to the manner in which the Respondent 's shop operated that it was only on rare occasions that mechanics punched in as early as one-half hour be- fore 8 and that Dobson in this instance was straining to make Bratcher's of- fense appear more serious than it actually was " Nevin testified that on Saturday morning , June 7, about I I a in , he looked for Carmichael to perform a front-end job and could not find him, 853 employee for antiunion reasons, I conclude that the Respondent was similarly motivated in discharging Bratcher. 2. The termination of Carmichael in violation of Section 8(a)(3) and (1) of the Act The Respondent contends that Carmichael's em- ployment came to an end when he quit on June 17 rather than accept a disciplinary suspension. Ac- cording to the Respondent, this was the second oc- casion within 10 days on which Carmichael had dis- appeared when he was needed, and disciplinary ac- tion was required.16 As found above, Carmichael had worked for the Respondent 1-1/2 years and was the Respondent's only regular front-end man. There is no claim that Carmichael's work was in any way unsatisfactory. The incident of June 17 was the first occasion on which his conduct had ever been called into question. Carmichael was one of the two original instiga- tors of the union movement and Carmichael alone had signed up about half of the employees who ex- ecuted bargaining authorization cards. On one of the early occasions on which Lytwinick was hand- ing out union leaflets outside the gate, Carmichael was observed talking to Lytwinick by Davidson and Nevin. On June 17, after an absence from the shop of no more than 25 minutes on an errand for his ailing youngest child, which he fully explained to Nevin and Pye on his return, Nevin announced that Car- michael was being suspended indefinitely and, despite Carmichael's inquiries, gave him no idea as to when he would be informed as to the length of his suspension. Carmichael reacted, as any em- ployee might who had been told he would be off the payroll for an indefinite period-maybe a day, a week, or possibly a month-by demanding that he be paid in full. Both Nevin and Pye readily acquiesced in this demand. Carmichael signed the voluntary quit statement which Nevin handed him as a preliminary step to obtaining his pay in full. I have referred to the Respondent's hostility to the union movement in my discussion of Bratcher's discharge. Carmichael's activity in signing up em- ployees, which was carried on in part in and around the shop, was known to many employees. In view of and that when Carmichael returned about 11 45 am Carmichael ex- plained that he had been roadtesting a car, an explanation which Nevin testified that he knew, from an inquiry which he had made, to be false Ac- cording to Nevin, he confronted Carmichael at the time he suspended him with the fact of his earlier disappearance Carmichael denies that this earli- er episode was mentioned at the time of his suspension Pye's account of the suspension interview does not mention the earlier episode Admittedly, Nevin did not reprimand Carmichael at the time of the earlier episode I need not resolve the conflicting testimony in this regard since I am con- vinced, for the reasons discussed below, that even if the earlier episode oc- curred as testified to by Nevin, the Respondent would not have treated Carmichael as it did but for his interest in the union movement 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the evidence in this case of employees' informing supervisors about organizing activities17 and Nevin's virtual admission that he had observed Carmichael conversing with Lytwinick at the plant gate on one of the occasions on which Lytwinick was distribut- ing union leaflets, I infer that, at the time Nevin suspended Carmichael, Nevin had reason to believe that Carmichael was more than routinely interested in the Union. The reason for Carmichael's absence was an understandable one and there is no doubt in my mind that had Carmichael requested permission to leave, such permission would have been granted. Even assuming, as asserted by Nevin, that this was a second offense, in my opinion the Respondent overreacted-overreacted in that it refused to com- mit itself as to when it would inform Carmichael as to how long he was being suspended-leaving Car- michael no alternative but to assume the worst; i.e., that his suspension might be for a week or possibly much longer. Upon all of the facts of the case I am convinced that the reason that the Respondent overreacted was its opposition to the Union and its belief that Carmichael was a supporter of the union move- ment. The Respondent's suspension of Carmichael therefore violated Section 8(a)(3) and (1) of the Act. I conclude further that the Respondent would not have so readily acquiesced in Carmichael's quitting, leaving it without a regular front-end mechanic, but for the desire to rid itself of an em- ployee who by reason of his union activities had become persona non grata. In this way the Respon- dent effected separation of an unwanted employee from its employ without appearing, on the surface at least, to be responsible for the separation. In my opinion the Respondent, in accepting Carmichael's resignation with alacrity, treated him differently than it would have had it not been for his prounion sympathies. In other words, had no union campaign been in progress, the Respondent would have made an effort to retain the services of its front-end man by at least clarifying the length of the suspension. In my opinion, the Respondent's failure to do so, im- pelled by its objection to Carmichael's union activi- ties, constituted discrimination against him in viola- tion of Section 8(a)(3) and (1) of the Act. Whether viewed in this light or as a constructive discharge brought about by subjecting Carmichael to disciplinary action so drastic that it might reasonably be foreseen to effect Carmichael's resignation, the Respondent's conduct in relation to Carmichael violated Section 8(a)(3) and (1) of the 'r In addition to Dobson and Rentz , Assistant Service Manager Pye also testified that on one occasion he was shown a union leaflet inside the shop after leaflets had been given out at the gate 1s The complaint as amended also alleged that the Respondent further violated Sec 8(a)(5) and (1) of the Act in September by unilaterally changing the employees' method of compensation from the bonus incen- tive plan to the former commission plan In view of the timing of this al- leged unilateral action, before the Regional Director issued his certification of the Union, the General Counsel cannot rely on the certification as establishing the Union 's majority status in an appropriate unit on the date Act. See N.L.R.B. v. Tennessee Packers, Inc., Frosty Morn Div., 339 F.2d 203, 204-205 (C.A. 6); Vacuum Platers, Inc., 154 NLRB 588, 607, enfd. 374 F.2d 866, 867 (C.A. 7). 3. The Respondent's offer of individual contracts to the men In September, after the Union had won the elec- tion and while the Respondent's Objections to Con- duct Affecting the Results of the,. Election were pending before the Regional Director, General Manager Brooks offered to enter into individual contracts setting forth wages and other terms and conditions of employment. This offer, coming at that time when the question of the Union's right to represent the Respondent's employees was pending before the Regional Director, necessarily tended to undermine the employees' allegiance to the Union and clearly constituted interference with the em- ployees' right to bargain collectively through representatives of their own choosing in violation of Section 8(a)(1) of the Act. 4. The Respondent 's refusals to bargain collectively with the Union in violation of Section 8(a)(5) and (1) of the Act As found above, after the Regional Director overruled the Respondent's objections to the elec- tion and issued his certification of the Union, the Union by letter dated October 21 requested the commencement of the bargaining negotiations. The Respondent, by letter dated October 23, expressly refused this request. The Respondent thereafter failed to answer the Union's telegraphic request for bargaining dated November 25 and refused its oral request to open bargaining negotiations made on the following day. At the hearing the Respondent's secretary-treasurer stated that the Respondent was refusing to bargain collectively with the Union in order to test the validity of the proceedings in the representation case. Having refused to bargain collectively with the duly certified representative of its employees in an appropriate bargaining unit, the Respondent has violated Section 8(a)(5) and (1) of the Act.18 CONCLUSIONS OF LAW 1. All service department, parts department, and body shop employees employed by the Respondent of the alleged unilateral action Since I have found repeated refusals to bar- gain after the Regional Director issued his certification of the Union which will place in issue the validity of the certification and of the representation proceeding as a whole (Case 12-RC-3318), a procedure favored by the Respondent, and since the cease-and-desist order which I am recommend- ing herein will cover future unilateral acts in violation of Sec. 8 (a)(5) of the Act, I find it unnecessary to consider further these allegations of the complaint and make no findings of unilateral action in violation of Sec 8(a)(5) LYNCH-DAVIDSON MOTORS, INC. at its Jacksonville, Florida, location, including mechanics, car washers, porters, truckdrivers, in- spectors, service writers, dispatchers, inventory, stock, counter, and shipping clerks, warranty and customer clerk, and regular part-time employees, but excluding office clerical employees, car salesmen , guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 2. On and at all times after August 6, 1969, Local 1902, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, has been the exclu- sive bargaining representative of the employees in the aforesaid collective-bargaining unit. 3. By refusing on and after October 23, 1969, to bargain collectively with Local 1902, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, as the exclusive bargaining representa- tive of the employees in an appropriate bargaining unit, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 4. By offering to enter into individual employ- ment contracts with employees at a time when a question of representation was pending, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the right to bargain collectively through representatives of their own choosing, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 5. By discharging Bobby Bratcher on May 27, 1969, and by suspending, thereby causing the ter- mination of employment of, Gerald Carmichael on June 17, 1969, the Respondent has discouraged membership in Local 1902, Brotherhood of Rail- way, Airline and Steamship Clerks, Freight Han- dlers, Express and Station Employees, AFL-CIO, by discrimination in regard to hire, tenure, terms and conditions of employment, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, my Recommended Order will direct that the Respondent cease and desist therefrom and take certain affirmative action to ef- fectuate the policies of the Act, including bargain- ing collectively with the Union. I have found that the Respondent unlawfully dis- 11 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in 855 criminated against Bobby Bratcher and Gerald Car- michael. To remedy this unlawful conduct my Recommended Order will provide that the Respon- dent offer to Bratcher and Carmichael immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for their losses resulting from the Respondent's discrimination against them, by pay- ment to each of them of the sum of money he would have earned from the date of the discrimina- tion against him until the date on which the Respondent offers him reinstatement, less his net interim earnings. Backpay shall be computed on a quarterly basis and shall include interest at 6 per- cent per annum, as provided in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heat- ing Co., 138 NLRB 716. Upon the foregoing findings and conclusions and pursuant to Section 10(c) of the Act, there is hereby issued the following: RECOMMENDED ORDER'9 The Respondent, Lynch-Davidson Motors, Inc., Jacksonville, Florida, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 1902, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Em- ployees, AFL-CIO, or any other labor organiza- tion, by discharging, suspending, or in any other manner discriminating against employees in regard to their hire or tenure of employment or any terms or conditions of employment. (b) Refusing to bargain collectively with Local 1902, Brotherhood of Railway, Airline and Steam- ship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, as the exclusive representa- tive of all employees in the appropriate unit with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment. (c) Offering individual contracts of employment to employees under circumstances tending to un- dermine their adherence to a labor organization. (d) In any other manner interfering with, restraining , or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Bobby Bratcher and Gerald Car- michael immediate and full reinstatement to their former or substantially equivalent positions and make each whole in the manner set forth in the Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD portion of the Trial Examiner 's Decision entitled "The Remedy " for their losses resulting from their termination in May and June 1969. (b) Notify each of the above-named employees, 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. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Upon request, bargain collectively with Local 1902 , Brotherhood of Railway , Airline and Steamship Clerks , Freight Handlers , Express and Station Employees, AFL-CIO, as the exclusive representative of all the employees in the ap- propriate unit stated in the Conclusions of Law above. (e) Post at its shop at Jacksonville , Florida, co- pies of the attached notice marked "Appendix."20 Copies of said notice , on forms provided by the Re- gional Director for Region 12, after being signed by a duly authorized representative, shall be posted by it immediately upon receipt thereof, and be main- tained 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 the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director for Region 12, in writing, within 20 days from the date of the receipt of this Decisio*, what steps the Respondent has taken to comply herewith.21 20 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 21 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, suspend, or other- wise discriminate against any of our employees in regard to their hire , tenure of employment, or any term or condition of employment, because they have engaged in union or con- certed activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT offer our employees individual contracts of employment in circumstances tending to weaken their support of a labor union. WE WILL reinstate Bobby Bratcher and Gerald Carmichael and will reimburse them for their losses resulting from our discrimination against them. WE WILL, upon request, bargain collectively with Local 1902, Brotherhood of Railway, Air- line and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, as the exclusive representative of the employees in the unit stated below, All service department, parts department, and body shop employees employed at our Jacksonville , Florida, location, including mechanics, car washers , porters, truckdrivers, inspectors, service writers, dispatchers, inventory, stock, counter, and shipping clerks, warranty and customer clerk, and regular part-time employees, but excluding office clerical employees, car salesmen , guards , and supervisors as defined in the Act. LYNCH-DAVIDSON MOTORS, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Federal Building, 400 West Bay Street, Jacksonville, Florida 32202, Telephone 904-791-2168.