Hagan Oldsmobile Cadillac

816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD George H. Gentithes, Thomas W. Evans, and Philip S. Hagan, Partners, d/b/a Hagan Oldsmobile- Cadillac and International Association of Machin- ists and Aerospace Workers, District Lodge No. 63, AFL-CIO. Case 6-CA-4757 August 4, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On April 9, 1970, Trial Examiner James V. Con- stantine 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 de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief,' and the General Counsel filed cross-exceptions 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 briefs, and the entire record in the case , and hereby adopts the findings ,2 conclusions , and recommenda- tions of the Trial Examiner as modified herein.3 In agreement with the Trial Examiner, we find that the Respondent discharged employees Thomas J. Richmond and Louis Vore in violation of Section 8(a)(3) and (1) of the Act. Contrary to the Trial Examiner, we find that the Respondent engaged in conduct violative of Section 8(a)(1) of the Act. The record shows that on March 27, 1969, in an election for the Respon- dent's service department employees in Case 6-RC-4931, nine votes were cast for, and nine against , the Union , which thereby lost the election. Between June and September 1969, the Respon- dent, through Philip S . Hagan , a partner and general manager, engaged in the following activity: Stating at an employee meeting that the Respon- dent was "making a study of additional benefits" and the employees would be receiving additional benefits not later than September , including free health insurance , uniforms , guaranteed wages, and vacation pay; providing those benefits during this period ; comparing the benefits with those of "the union shop ... up the street "; asserting that the Respondent's benefits would be as good as or better than those of said "union shop " or any other dealer in the area , "there would not be a union in the shop," the mechanics would not have to pay union dues, and the Respondent's benefits were better than those the Union would have obtained for them ; handing each of the employees a paper describing the benefits; and telling the employees that Hagan knew some of the mechanics "were union ," but that he was "antiunion naturally." The Trial Examiner , finding no evidence of union activity at the Respondent's plant following the election of March 27, found that the instant record did not therefore overcome the presumption of the legality of the Respondent 's conduct, and that the conduct was therefore not violative of Section 8(a)(1). In support of his finding , the Trial Ex- aminer, conceding the existence of union animus as evidenced by the Respondent 's remarks, concluded that neither the promises therein contained nor their effectuation could reasonably be said to have been calculated or designed to undermine the Union , and that in other respects the remarks were merely explanatory of "the situation which flowed from the Union 's loss of the election in 1969." Contrary to the Trial Examiner, we find that, while union activity declined somewhat after the March 27 election , it did not cease, but on the con- trary continued during the summer of 1969. Thus according to employee Thomas J. Richmond, an 8(a)(3) discriminatee , on several occasions after the election , during the summer of 1969, Richmond , an organizer in the preelection cam- paign and a union election observer, talked to the Union's business representative about the possibili- ty of having another election in a year , and he also ' The Respondent has requested oral argument. The request is hereby denied inasmuch as the record , the exceptions , and the briefs adequately present the issues and the positions of the parties ' These findings and conclusions are based, in part , on credibility deter- minations of the Trial Examiner to which the Respondent has excepted. After careful review of the record, we conclude that the Trial Examiner's credibility findings are not contrary to the clear preponderance of all rele- vant evidence . Accordingly , we find no basis for disturbing those findings. Standard Dry Wall Products, 91 NLRB 544 , enfd . 188 F.2d 362 (C.A 3) * We disavow the Trial Examiner's reference to the Fair Labor Standards Act as being irrelevant to any issue herein presented We also do not rely on the Trial Examiner's finding that Tyler was not chastened for not attend- ing the September 10 affair, inasmuch as the Trial Examiner also found, in accord with the record, that Tyler, a part-time janitor, was not invited to at- tend. 184 NLRB No. 89 HAGAN OLDSMOBILE-CADILLAC continued discussing the Union with employees and answering their questions in that regard. We further find, contrary to the Trial Examiner, that the Respondent's discussion of benefits at its postelec- tion meetings with employees were coupled with antiunion remarks designed to show the employees that it would be an act of futility to select the Union as their bargaining representative. In these circum- stances, we conclude that the Respondent's speeches, containing express or implied promises of specific benefits or improvements and conditions of employment if the employees refrained from join- ing or assisting the Union, followed by the imple- mentation of such benefits, were violative of Sec- tion 8(a)(1) of the Act, and we so find.' We further find that the Respondent, by discharging employees Richmond and Vore because of their union affiliation, was guilty, not merely of isolated acts in violation of the right of self-organization, but also of violating the broad provisions of Section 8(3) of the Act.5 We shall therefore amend paragraph 1(b) of his Recom- mended Order and the second indented paragraph of the notice attached to his Decision to provide for a broad cease-and-desist Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, George H. Gentithes, Thomas W. Evans, and Philip S. Hagan, Partners, d/b/a Hagan Oldsmobile-Cadil- lac, Washington, Pennsylvania, its agents, succes- sors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Insert in paragraph 1(a) of the Trial Ex- aminer's Recommended Order, and in the first in- dented paragraph of the notice attached to his Decision, after the words "or any other labor or- ganization," the words "by promising or instituting economic benefits, including free health insurance, uniforms, guaranteed wages, and vacation,". 2. Delete from paragraph 1(b) of the Recom- mended Order, and from the second indented para- graph of the notice, the words "In any like or re- lated manner" and substitute therefor the words "In any other manner." 3. Add to paragraph 2(a) of the Trial Examiner's Recommended Order and to the third indented paragraph of the notice, after the words "former position or," the words "if these jobs no longer ex- ist, to." 817 4 Our decision in Welsh Sporting Goods Corp. 181 NLRB 848, is clearly distinguishable , for there the announcement and implemenattion of the benefits were made without any reference to antiunionism. N L R B v. Entwistle Mfg Co , 120 F 2d 532 (C.A. 4, 1941), enfg. 23 NLRB 1058 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Trial Examiner: This is an unfair labor practice case brought under Section 10(b) of the National Labor Relations Act, herein called the Act (29 U.S.C. 160(b)). It was initiated by a complaint issued on December 29, 1969, by the General Counsel of the National Labor Rela- tions Board, herein called the Board, through the Regional Director for Region 6 (Pittsburgh, Pennsylvania ), naming as the Respondent a part- nership called Hagan Oldsmobile-Cadillac. That complaint is based on a charge filed on September 29, 1969, and an amended charge filed on November 24, 1969, by International Association of Machinists and Aerospace Workers, District Lodge No. 63, AFL-CIO, herein called the Union. In essence the complaint alleges that Respon- dent, a partnership composed of George H. Gen- tithes, Thomas W. Evans, and Philip S. Hagan, has violated Section 8(a)(1) and (3), and that such conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has answered admitting some allegations of the com- plaint but denying that it committed any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried before me, at Pittsburgh, Pennsylvania, on February 17, 1970. All parties were represented at and participated in the trial and had full opportunity to adduce evidence, ex- amine and cross-examine witnesses, file briefs, and offer oral argument. When the General Counsel rested, Respondent moved to dismiss. This motion was denied. Respondent and the General Counsel have submitted briefs. The General Counsel's "mo- tion to correct transcript" is granted since it is not opposed. This case presents the issues of whether Respon- dent: (1) Announced, and then granted, economic benefits to its employees in order to dissuade them from joining, supporting, or assisting the Union; (2) informed employees of the futility of joining, sup- porting, or assisting the Union; and (3) discrimina- torily discharged employees Thomas J. Richmond and Louis Vore because they were members of or engaged in activities on behalf of the Union, or in other protected activities, or both. Upon the entire record in this case, including the stipulations of the parties, and from my observation of the witnesses, I make the following: 818 DECISIONS OF NATIONAL FINDINGS OF FACT 1. AS TO JURISDICTION Respondent, a partnership composed of George H. Gentithes, Thomas W. Evans, and Philip S. Hagan, is engaged at Washington , Pennsylvania, in selling and servicing new and used automobiles. During the year preceding the issuance of the com- plaint herein , Respondent's gross volume of busi- ness exceeded $500,000, while at the same time Respondent received goods valued in excess of $50,000 directly from points outside the Common- wealth of Pennsylvania . I find that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdic- tion over Respondent in this proceeding. II. THE LABOR ORGANIZATION INVOLVED The Union is now, and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. General Counsel 's Evidence 1. As to Section 8 ( a)(1) violations On March 27, 1969, pursuant to a petition filed in Case 6-RC-4931 by the Union , an election was held among Respondent 's service department em- ployees . Employee Thomas J. Richmond acted as an observer for the Union at that election . As nine votes were cast for , and nine against , the Union, the Union lost said election and the Regional Director so certified on April 7, 1969. In June 1969, Philip S. Hagan , one of Respon- dent's partners and its general manager , addressed a meeting of its employees . Among other things he informed the employees that Respondent was "making a study of additional benefits " and that they would be receiving additional benefits not later than September of that year . These he described as free health insurance , uniforms , guaranteed wages, and vacation pay. Some of these benefits , including free health in- surance and increased vacation pay, did not go into effect until early in September 1969. On the other hand free uniforms were supplied beginning August 1, 1969. Hagan again referred to these forthcoming benefits at another meeting of Respondent's mechanics called by him in June or July 1969. Dur- ing his talk Hagan compared these benefits with those of "the union shop ... up the street," i.e., Beatty Buick, and asserted that those of Respon- dent would be as good as or better than those of said "union shop." Hagan also claimed Respon- dent's benefits would be as good as those of any of the other dealers in the area. Continuing, Hagan LABOR RELATIONS BOARD mentioned that "there would not be a union in the shop " and that the mechanics would not have to pay dues . He also added that Respondent's said benefits were better than those the Union could have obtained for them. In early September 1969, Hagan again enu- merated the foregoing benefits to employee Louis Vore. In August 1969, Hagan spoke individually to the mechanics and gave each of them a piece of paper describing said benefits . He also told them that he knew some of the mechanics "were union," but that "he was antiunion naturally." Then he proceeded to discuss the benefits which he was going to give to them. 2. As to 8(a)(3) violations a. Background In the summer of 1968 the Union started or- ganizational activities among Respondent's service employees . Theodore C. Bold , a business represent- ative of the Union , directed the campaign. He was assisted by Thomas J. Richmond who worked in Respondent 's shop, a part of its service department. As noted above, Richmond also acted as an ob- server in the election of March 27, 1969 . Hagan, one of Respondent's partners , testified that, before he discharged them , he was "aware of the fact that both Vore and Richmond had engaged in activities on behalf of the IAM organizational activities." In addition , Richmond and Vore signed union cards. Richmond also solicited others to sign cards and ar- ranged for meetings of employees with Union Representative Bold. In February 1969, Union Representative Bold called on Respondent and requested that the Union be recognized as majority representative of the ser- vice department employees . Bold presented for in- spection to Respondent 's partners Hagan and Gen- tithes "the authorization cards," among which were those of Vore and Richmond . Said partners ex- amined and looked at these cards. b. The discharge of Thomas J. Richmond Richmond was very active in the union move- ment at Respondent 's shop. At that time he was employed by it as an auto mechanic . Among other things he interested Union Representative Bold in speaking to the employees and, as described above, arranged and organized three meetings of em- ployees at which Bold spoke . Richmond also sol- icited, with much success, many employees to sign union cards . He also signed such a card him- self. In the summer of 1969, Respondent Partner Hagan told Richmond that he knew that the latter was "prounion" and asked "how did that come about?" On the morning of September 11, 1969, Foreman Vic Lombardo informed Richmond that the latter HAGAN OLDSMOBILE-CADILLAC was "laid off as of the end of to-day." When Richmond requested a reason therefor , Lombardo replied, "Lack of co-operation, for not attending the banquet last night," and added that "there was. other things of course that led up to it." However, Lombardo never mentioned these "other things." Later that day Richmond spoke to Hagan in the presence of Lombardo. Upon Richmond' s asking Hagan whether Richmond had been laid off or fired, Hagan answered, "laid off indefinitely." Thereupon Richmond asked why he was being laid off. Hagan replied, "Lack of co-operation ... the meeting the night before "; and added "there were other things of course." Although Richmond then protested that he had never before failed to cooperate, Hagan insisted that he "didn 't have to go beyond last night." Sometime prior to September 10, 1969, Hagan announced at a meeting of employees called by Respondent , at which Richmond was present, that a banquet in the near future would replace its annual picnic . Hagan further said that he expected all em- ployees to attend but did not indicate it was manda- tory or compulsory that they do so. Sometime later Hagan set the banquet meeting for September 10. A few days before September 10 a couple of em- ployees, neither of whom was Richmond, asked Hagan, without success, to be excused from going to this banquet. The meeting of September 10, 1969, was not the first held for service department employees. In fact "service meetings" were held by Respondent once a month in the evening . These were neither on company time nor were employees paid for attend- ing them. Yet Richmond and other employees sometimes did not attend them, so that usually but 50 percent of the employees showed up at them. But not one employee has ever been warned, disciplined, or discharged for failing to attend such monthly service meetings. Further, the banquet meeting of September 10, as noted above, "was in essence a replacement for the summer picnic ." Sometimes in the past some employees did not attend such picnics, but they were not discharged therefor. In late August or early September 1969, Frank Reynolds, Respondent 's service manager , reminded Richmond of the September 10 banquet. Neverthe- less Richmond replied that he thought he could not make it. Despite this, Reynolds said nothing in- dicating that failure to attend would expose Richmond to discharge. Nor did Reynolds inquire why Richmond would not attend. During the day of September 10 Foreman Vic Lombardo also reminded Richmond about the banquet meeting that evening . Richmond replied that he could not make it. However, Lombardo did not then mention that Richmond risked discharge by being absent therefrom. And Lombardo did not ask why Richmond would be absent. Indeed, no su- pervisor or company official asked Richmond why he could not go. Further , no one from management 819 told Richmond that attendance at this meeting was compulsory and that being absent would result in discharge. Other witnesses for the General Counsel also testified to the same effect. Sometime before September 10 a notice ap- peared on the bulletin board notifying employees of the September 10 banquet meeting but nothing contained therein indicated that attendance was compulsory or that failure to come could result in discharge. Richmond finally testified that Hagan long prior to September 10 had told him that factory representatives from Oldsmobile and Cadillac would be present at the banquet meeting of Sep- tember 10, and that suchrepresentatives were "go- ing to have something to do with customer relations and the employees at Hagan Olds-Cadillac." Nevertheless Hagan omitted reference to discharge as a penalty for remaining away from the banquet meeting. Sometime during the day of September 10, 1969, Foreman Vic Lombardo told employee Clarence Beatty that he, Vic, knew that Richmond was not going to the banquet that night. c. The discharge of Louis Vore Vore, a mechanic for Respondent, signed a union authorization card and also "talked in favor of the Union with other employees, in the shop, at dif- ferent times ... [ also] at different places." On September 11, 1969, Service Manager Frank Reynolds informed Vore that Vore was being laid off at 5 p.m. that day. When Vore requested an ex- planation therefor, Reynolds answered, "lack of co- operation ... by not attending the banquet ... the night before." Shortly thereafter Vore asked partner Hagan whether Vore was laid off or fired. Replying, Hagan said that Vore was being laid off because of lack of cooperation by not attending the banquet. Admittedly Vore did not go to that banquet. Sometime before September 11, 1969, and probably in July, Hagan had told a meeting of all employees that a banquet meeting would be held to replace the summer picnic, and that he would like all service employees to attend ; but Hagan did not mention that employees had to attend or be subject to discharge . This banquet was to take place after working hours , and employees were not to be com- pensated for going to it . Factory representatives would be present. In the past Hagan had been holding monthly meetings , during nonworking time, for the service department employees. But attendance at these as- semblages was not compulsory and those failing to come to them were not discharged or otherwise disciplined therefor. About September -1, 1969 , Service Manager Frank Reynolds inquired of Vore whether Vore would attend the banquet meeting on September 10. Vore responded by saying that a "previous en- 427-835 0 - 74 - 53 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gagement" prevented him from going. Employee Clarence Beatty overheard this conversation. A few days later Hagan asked Vore whether Vore was coming to the banquet, but Vore replied in the negative. Yet Hagan did not refer to any penalty for not going or insist that attendance was mandatory. Finally, on September 10 Reynolds again asked Vore if Vore would attend the banquet, stating that an answer was necessary to aid in determining the number of "plates" to be reserved there. Again Vore answered that he would not be there. But no allusion was made to the fact that attendance was compulsory or that those not going to it would be disciplined . Reynolds made a similar statement about reservation of plates to other employees, in- cluding Clarence Beatty. However, on the after- noon of September 10 Hagan did tell Vore that he, Hagan, would like Vore to be there. B. Respondent's Evidence 1. Philip S. Hagan 's testimony Philip S. Hagan, a partner in and general manager of Respondent, called a general meeting of employees sometime in June 1969. In addition to announcing the desire to improve on benefits "where we can," he also stated that, subject to "clearing" the same with General Motors, Respon- dent would hold "an employer relation meeting" before the new cars appeared on the market. The date for said meeting was tentatively set for Sep- tember 10, he told the employees. Referring to other dealers in the area, Hagan said Respondents would try to do as well as, or better than, such dealers in granting benefits to employees. Then he described improvements in benefits relating to health insurance, uniforms, guaranteed wage rates, vacation pay, and "school pay." Guaranteed hourly wage rates are important because prior to this a mechanic received 50 per- cent of the gross charge for work he performed for the customer. But under the new plan he was guaranteed a minimum rate. If said 50 percent is less than the guaranteed rate per hour, then Respondent makes up the difference. Of course, if the 50 percent amounts to more than the guaran- teed rate the mechanic retains the excess. Another meeting of employees was summoned by Hagan in July 1969. This time Hagan told them that beginning August 1 Respondent would provide free uniforms and free health insurance, and that com- mencing September 1 the guaranteed wage rates would become effective. He also confirmed Sep- tember 10 as the date for the "employee-owner relations meeting," and told them, "This is a GM sponsored program [and] we required one hundred percent attendance at" it. (However, employee David Tyler was not invited and did not attend. Tyler was in the unit and voted in the election.) But Hagan denies that at this or the prior meeting in June he mentioned any union or not having one at Respondent's place of business. All employees except Richmond and Vore came to the September 10 meeting; i.e., 32 out of 34. To make sure that all employees became aware of the importance of attending, Hagan in August in- structed Service Manager Frank Reynolds to im- press such significance upon each employee in- dividually by speaking to each one separately. In addition, a notice was posted on the bulletin board advising employees of this September 10 meeting. Finally, Respondent closed early on September 10 to furnish employees with ample time to go home and then come to the meeting. On September 10 Hagan told Vore he would see Vore at the meeting. Vore smiled but said nothing. Although Hagan at a meeting of mechanics in the summer of 1969 mentioned that Respondent's benefits were better than those of any other dealer in town, he did not at any time compare such benefits with those in any "contract" or refer to a "union" shop. In fact Hagan at no time mentioned a union in this or any other talk with employees. On September 11, 1969, Hagan told Foreman Vic Lombardo to lay off Richmond "as of the end of the day" for lack of cooperation in not going to the September 10 "owner-relations meeting." Later on September 11 Hagan also so informed Richmand when the latter came to see him. But Richmond offered no excuse for his absence from said meeting. That same day Hagan also laid off Vore for the same reason . Nor did Vore at that time give a reason for being absent. Hagan had knowledge on the afternoon of Sep- tember 10 that Richmond and Vore would not go to the meeting that evening. So he sent word to them by "emissaries," i.e., supervisors, that they were expected to attend it. But neither Hagan nor the "emissaries" referred to any discipline which would be inflicted if employees failed to come. Finally, Hagan testified that he knew before Sep- tember 10 that Richmond and Vore each had signed a union card. 2. Victor Lombardo's testimony At all times material Lombardo has been Respondent's body shop foreman. As such he su- pervised Thomas J. Richmond. Partner Hagan addressed a meeting of employees in July 1969. Among other things Hagan discussed the new benefits about to be instituted. He also "mentioned about the special meeting coming up," i.e., an employees-owner meeting, and told em- ployees present that he expected everybody, "one hundred percent," to go to it. However, Hagan did not refer to the special meeting as replacing the summer picnic. Sometime thereafter Service Manager Frank Reynolds called a meeting of the service department employees and "mentioned" to them the "employees-owner meeting coming up." HAGAN OLDSMOBILE-CADILLAC In addition a notice announcing the latter meeting was posted on Respondent's bulletin board by the timeclock. At some time thereafter Hagan instructed Lom- bardo to inform those working under the latter "to have [Lombardo's] men" at said special meeting. Pursuant to said direction Lombardo so informed his men, including Richmond. In addition, Lombar- do repeated said request to his men about 4:50 p.m. on September 10, 1969, the day of the special meeting . But Richmond did not disclose whether he would attend or not, saying only that he would "try to make it." On September 11, the next day, Hagan directed Lombardo to lay off Richmond. When Lombardo did so, Richmond asked for an explanation. Reply- ing, Lombardo accused Richmond of lack of cooperation by failing to "participate in the activi- ties." Lombardo finally testified that although "every- body was supposed to be there . . . the whole crowd," employee David Tyler was absent therefrom. Yet Tyler suffered no disciplinary action for his failure to show up at the meeting of Sep- tember 10. 3. The testimony of Frank Reynolds Reynolds is Respondent's service manager. In late June and again in July 1969, Hagan called a meeting of the employees. Among other things ten- tative plans were made at the June assembly to hold "an employee-owner relations meeting put on by General Motors ..." But Hagan said nothing about a summer picnic on this occasion. At the July meet- ing Hagan announced the date of the employee- owner relations meeting and added "this [is] a meeting for all employees of Hagan Olds Cadillac." But no mention was made that this would be a sub- stitute for the summer picnic. Following the July meeting Reynolds placed a notice on the clock concerning the employee- owner relations meeting, and also instructed Foreman Lombardo to inform all body shop em- ployees to attend said meeting. In addition, Reynolds spoke to all other employees under his su- pervision, i.e., all but those in Lombardo's body shop. All except employee Louis Vore promised to come. Vore answered that he did not know if he could make it. Reynolds reported this to Hagan. Finally, at a meeting of all service department em- ployees, including Richmond and Vore, Reynolds told those present to attend the employee-owner relations meeting. Nevertheless at no time did Reynolds inform employees they would be disciplined if they did not attend. On September 11, the day following the em- ployee-owner relations meeting, Hagan told Reynolds to lay off Richmond and Vore "due to noncooperation." So Reynolds laid off Vore, who worked directly under him, and commanded Lom- 821 bardo to lay off Richmond. Still Vore offered no excuse for not being at the meeting the day before. C. Concluding Findings and Discussion Preliminarily it seems desirable to point out that on this branch of the case the Respondent's evidence in large part corresponds to that of the General Counsel. Where dispute or contradiction exists, I have credited the General Counsel's ver- sion for two reasons: (a) On the basis of demeanor, I accept the General Counsel's testimony as more credible; and (b) certain discrepancies or inconsistencies in Respondent's evidence convince me that Respon- dent's evidence is less credible than the General Counsel's. In this respect, two illustrative examples suffice. Hagan testified that on September 10 Respondent closed early, i.e., about 4 p.m., to pro- vide employees with ample time to go home and then come to the meeting that evening. Yet Foreman Lombardo testified that 10 minutes be- fore the regular 5 p.m. quitting time on September 10 he asked employees under his supervision to be sure to go to the meeting scheduled for that even- ing. If the employees were dismissed on September 10 at 4 p.m., as Hagan claims, then it is difficult to understand why Lombardo's body shop employees were still working at 4:50 p.m. Another example involves a notice posted by Respondent on its bulletin board relating to the meeting to be held in the evening of September 10. According to Respondent 's witnesses this notice did no more than apprise employees of the date of the meeting. But these same witnesses claim , contrary to the General Counsel's witnesses , that they told employees that such employees had to attend that meeting . If, as such witnesses of the Respondent claim, attendance at such meeting was compulsory, it is hard to comprehend why such an important fact was omitted from the posted notice announc- ing such meeting. 1. As to Section 8(a)(1) violations Accordingly , I find that in June 1969, Hagan told employees that they would be receiving additional benefits not later than September 1 of that year, and that such benefits consisted of free health in- surance , uniforms , guaranteed wages, and vacation pay. Also, I find that the employees did receive such benefits between August 1 and September 1. But I find no violation of the Act either in the promise of such benefits or in fulfilling said promise . This is because I find no union was or- ganizing Respondent 's employees at the time. Since no union appeared on the scene during this period the state of the record does not overcome the pre- sumption that Respondent's action was lawful. Cf. Welsh Sporting Goods Corp., 181 NLRB 848, fn. 1. Patently an employer may increase or promise to 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increase benefits so long as such conduct is not in- tended to influence employees in the selection or designation of a collective-bargaining representa- tive . But I find that the last time a union demon- strated an interest in Respondent 's employees was in late March 1969 when the Union lost the elec- tion ; and that the record is devoid of evidence of union activity thereafter . Hence it cannot reasonably be inferred that said promise and its ef- fectuation were calculated or designed to un- dermine the Union , for no union was displaying any concern in Respondent 's employees. Further, I find that Hagan again adverted to said benefits at another meeting of employees held by Respondent in July 1969. For the same reasons I find that such alluding to such benefits does not contravene the Act ; i.e., it was not intended to destroy adherence to a union . At this meeting Hagan also compared these benefits with those of a nearby union shop and of other dealers in the area, and observed that Respondent's benefits exceeded those which the Union could have obtained for them . But I find nothing coercive about these re- marks and, therefore , find that they, too, are not forbidden by Section 8(a)(1) of the Act. At the July 1969 meeting , above noted, Hagan also stated that there would not be a union in Respondent 's shop and that the mechanics would not have to pay dues . While this utterance demon- strates union animus , I find that it is not coercive, as it merely explains the situation which flowed from the Union 's loss of the election in the spring of 1969 . Hence I find it does not transgress Section 8(a)(1) of the Act. In early September 1969, Hagan again recited to employee Louis Vore the benefits narrated above. In August 1969, he also described them to the mechanics individually. For the same reasons set forth above, I find that the foregoing conduct is not coercive and hence not barred by the Act. When Hagan spoke to the mechanics in August 1969, as described in the preceding paragraph, he informed them that he knew some of them "were union" but that he was "anti -union naturally." Although I find that this statement depicts antiu- nion hostility , I nevertheless find that it is not coer- cive . Hence I find that it does not transgress the Act, for antiunion expressions do not amount to un- fair labor practices . J. P. Stevens & Co., Inc., 181 NLRB 666; N.L.R.B. v . Threads, Inc., 308 F.2d 1, 8 (C.A. 4); N.L.R.B. v . Howard Quarries , 362 F.2d 236 (C.A. 8). Nor does it contain any threats or ex- press any concern with the union membership of such employees. Intersuburban Hometown Newspapers, 181 NLRB 462. 2. As to the discharge of Thomas J. Richmond It seems desirable to bear in mind that "Direct evidence of a purpose to discriminate is rarely ob- tained, especially as employers acquire some so- phistication about the rights of their employees under the Act; but such purpose may be established by circumstantial evidence." Corrie Corporation v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4). "Direct evidence of a purpose to violate the statute is rarely obtainable " in connection with an employee's discharge. Hartsell Mills v. N.L.R.B., 111 F. 2d 291, 293 (C.A. 4). "Nowadays it is usually a case of more subtlety...." N.L.R.B. v. Neuhoff Bros., 375 F.2d 372, 374 (C.A. 5). Accord: Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9), where the court observes that "In such cases, the self-serving declaration is not conclusive; the trier of fact may infer [a discriminatory] motive from the total circumstances proved." An appraisal of the entire record convinces me- and I find-that Richmond was discharged for union membership and activity, and that the reason assigned for his dismissal , i.e., lack of cooperation in failing to attend the special meeting of Sep- tember 10, is a pretext to disguise the real cause. This ultimate finding is based upon the entire record and the following subsidiary facts which I hereby find as facts. Respondent entertained union animus. It was not of an intense nature, nor was it persistently manifested to employees. Yet it was patent to em- ployees that Respondent was opposed to unions. Of course an employer is free to dislike unions and to convey such a position to employees; and so com- municating his views to employees does not amount to an unfair labor practice. N.L.R.B. v. Threads, Inc., 308 F.2d 1, 8 (C.A. 4). Nevertheless union animus is a factor which may be evaluated in ascer- taining the true motive prompting the discharge of an employee . Maphis Chapman Corp. v. N.L.R.B., 368 F.2d 298, 304 (C.A. 4); N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5). In addition I find that Respondent was aware of Richmond's union membership and activity. Not only did Hagan so testify, but I also impute knowledge of such activity to Respondent by reason of the fact that Respondent operated a small plant. Under the Board's small plant rule an em- ployer's knowledge of union activity at his plant may be inferred from that fact alone. I draw this in- ference. Angwell Curtain Company, Inc. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7). And I further find that Richmond was very active in the union movement at Respondent's place of business and acted as its organizer there . Hence he obvi- ously became a target for dismissal in order to discourage or cripple the possibility of reviving the union movement at the shop. "Obviously the discharge of a leading union advocate is a most ef- fective method of undermining a union ." N.L.R.B. v. Longhorn Transfer Service, 346 F.2d 1003, 1006 (C.A. 5). Then, again, I find that no warning was given to, Richmond that he exposed himself to the risk of discharge for failing to go to the special meeting of September 10. Failure to warn when a warning is required by the circumstances discloses a dis- HAGAN OLDSMOBILE-CADILLAC 823 criminatory motive if a discharge ensues for con- duct not theretofore deemed worthy of a warning. E. Anthony Sons v. N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.); N.L.R.B. v. Melrose Co., 351 F.2d 693 (C.A. 8); Dunclick, Inc., 159 NLRB 10, 11, fn. 1. In this connection I find (crediting the General Coun- sel's witnesses and not crediting Respondent's evidence not consonant with the General Coun- sel's) that Respondent requested , but did not direct or command , employees to attend that meeting. Hence I do not reach the question of whether a warning is implicit in any command by the em- ployer to an employee to do a certain act, as in the case of directing an employee to perform duties in the regular course of his employment. Further, I find that it is reasonable to expect that a warning should have been given because at- tendance at this special meeting of September 10 was not included among Richmond's required tasks, that it was held after regular working hours (see statement of Respondent's counsel, p. 5 of transcript), and Richmond was not to be compen- sated for going to it. In addition, employees who did not attend the monthly employees' meetings conducted by Respondent were not disciplined for not attending the same. Further, employee Tyler was not chastened for not attending the September 10 affair. So for this reason also it is reasonable to believe that employees should have been forewarned that they risked discharge for nonat- tendance at the special meeting of September 10. Although I have found that this September 10 meeting was to be held after hours, I make no find- ing as to whether the Fair Labor Standards Act considered this compensable overtime and, if so, whether Richmond could be required to attend without receiving overtime pay. This is because protesting a failure to comply with said Act ap- parently is not an activity protected by our Act. See Herman Mohland v. N.L.R.B., 394 F.2d 701 (C.A. 9). Further, I find that ordinarily one would expect a word of warning to an employee with a long period of service before summarily discharging him. See N.L.R.B. v. Midtown Service Co., Inc., et al., 425 F.2d 665 (C.A. 2), enfg. 171 NLRB 1306. This is especially true since it is reasonable to infer that "the permissible ground [i .e., nonattendance] alone would not have led to the discharge , so that it was partially motivated by an impermissible one." N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (C.A. 2). Of course I realize that "an employer may discharge an employee for good cause, or bad cause, or no cause at all. ..." N.L.R.B. v. Isis Plumbing & Heating Co., 322 F.2d 913, 922 (C.A. 9). And I am aware that the Board may not "interfere with the unfettered right of companies to exercise these personnel judgments." N.L.R.B. v. United Parcel Service, Inc., 317 F.2d 912, 914 (C.A. 1). Accord: Portable Electric Tools, Inc. v. N.L.R.B., 309 F.2d 423, 426 (C.A. 7). Nevertheless , "an employer having a right to discharge employees for ... unprotected activity may not discharge them for a discriminatory reason without violating Section 8 (a)(3) of the Act." N.L.R.B. v. Coal Creek Coal Co., 204 F.2d 579, 583 (C.A. 10). Since an employer may fire an employee for any good cause, I find that nonattendance at the Sep- tember 10 meeting constitutes such cause. But I further find that where there exists a "justifiable reason for discharge of an employee, if the real mo- tive for the firing is discrimination against him because of union activity or affiliation, there is a violation of the Act." N.L.R.B. v. Challenge Cook Bros., 374 F.2d 147, 152 (C.A. 6). Therefore, if union activity is a substantial or motivating cause for a discharge, such discharge will be found to be tainted with a discriminatory motive even though cause also exists for the termination. N.L.R.B. v. Symons Mfg. Co., 328 F.2d 835, 837 (C.A. 7); N.L.R.B. v. Mid-West Towel & Linen Service, 339 F.2d 958, 962 (C.A. 7). And I find that a substan- tial or motivating, but not necessarily the sole, reason contributing to Richmond 's discharge is his union membership and activity , despite the ex- istence of a lawful cause for such discharge. N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1); N.L.R.B. v. Park Edge Sheridan Meats, 341 F.2d 725, 728 (C.A. 2). 3. The discharge of Louis Vote It is my opinion, and I find, that Vore was discharged for union affiliation or membership, and that his absence from the meeting of September 10, 1969, was seized upon as a pretext to dissemble the true reason. This conclusion is based on the entire record in this case and the following factors which I find as facts. I further find that Vore was discharged and not laid off. Respondent's answer so admits. Respondent had knowledge that Vore had signed a union card not only because Hagan so testified but also because Respondent conducted a business with a small number of employees. Hence the Board's small plant rule, which infers that an em- ployer in a small plant has knowledge of union ac- tivity therein, has become operative in this case. Vore also testified that he "talked in favor of the union" with fellow employees in the shop, but that no supervisor or representative of management ob- served him doing so. While I find that such talk may be treated as union activity, I find that Respon- dent was not cognizant thereof. This is because I find it is not reasonable under the small plant rule to infer that an employer is aware of every conver- sation engaged in by his employees. Absent inde- pendent evidence of company knowledge of such conversations, some of which were conducted in the Company's parking lot, I find that the small plant rule under the circumstances does not impute such knowledge to Respondent. Except for the fact that Vore was not active in 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union movement at Respondent's plant, his situation corresponds to that of Richmond. Hence I find that Vore was discharged for the same reasons (other than the fact that Richmond was active on behalf of the Union) as those underlying the discharge of Richmond. It follows, and I find, that a substantial or motivating reason for Vore's discharge is his union membership or affiliation, and that, therefore , his termination violates Section 8(a)(3) and , derivatively, 8(a)(1), of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the opera- tions described in section I, above, have a close, in- timate , and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices prohibited by Section 8(a)(1) and (3) of the Act, I shall recommend that the National Labor Relations Board order it to cease and desist therefrom and to take specific af- firmative action, as set forth below, designed to ef- fectuate the policies of the Act. Since Respondent's conduct does not demonstrate a pronounced hostility to the Act, a broad order is not warranted. Rather, limited relief in my opinion will be more commensurate with the violations found. Ac- cordingly I shall recommend that Respondent be enjoined only from engaging in the activities herein found to be unlawful and like or related conduct. In view of the findings that Respondent dis- criminated against Richmond and Vore I shall further recommend that Respondent be directed (1) to offer each immediate and full reinstatement to his former position or one substantially equivalent thereto, without prejudice to their seniority and other rights and privileges enjoyed by each, and (2) to make each whole for any loss of earnings he may have suffered by reason of his discharge. In making Richmond and Vore whole Respon- dent shall pay to each a sum of money equal to that which each would have earned as wages from the date of his discharge to the date of his reinstate- ment or a proper offer of reinstatement, as the case may be, less his net earnings during such period. Such backpay, if any, shall be computed on a quar- terly basis, and shall include the payment of interest at the rate of 6 percent. I shall also recommend that Respondent preserve and, upon reasonable request, make available to the Board or its agents all per- tinent records and data necessary to ascertain what- ever backpay may be due. Upon the basis of the foregoing findings of fact, and upon the entire record , I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer as defined in Sec- tion 2 (2), and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By discriminating in regard to the tenure of employment of Thomas J. Richmond and Louis Vore, thereby discouraging membership in the Union , a labor organization , Respondent has en- gaged in unfair labor practices prohibited by Sec- tion 8 (a)(3) and (1) of the Act. 4. The above -described unfair labor practices af- fect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not committed any other un- fair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, I recommend that the Respondent , George H. Gentithes, Thomas W . Evans, and Philip S. Hagan, Partners, d/b/a Hagan Oldsmobile-Cadillac, its agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union, or any other labor organization, by discharging em- ployees or otherwise discriminating in any manner in respect to their tenure of employment or any terms or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights safeguarded to them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Thomas J. Richmond and Louis Vore each immediate and full reinstatement to his former position or one substantially equivalent thereto, without prejudice to their seniority and other rights and privileges enjoyed by each, and make each whole for any loss of pay he may have suffered by reason of his discharge , with interest thereon at the rate of 6 percent. (b) Notify said Richmond and Vore, if presently serving in the Armed Forces of the United States of their rights 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. (c) Preserve and, upon request, make available HAGAN OLDSMOBILE-CADILLAC 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) Post at its plant at Washington, Pennsyl- vania, copies of the attached notice marked "Ap- pendix."' Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by an authorized 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.2 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges unfair labor prac- tices not found herein. ' 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, recommendations, and Recommended Order herein shall, as provided in 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 . 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 Na- tional 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." ' 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 " NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that WE WILL NOT discourage membership in In- ternational Association of Machinists and Aerospace Workers, District Lodge No. 63, AFL-CIO, or any other labor organization, by discharging employees or otherwise dis- 825 criminating in any manner in respect to their tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with , restrain , or coerce employees in the exercise of rights guaranteed to them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization under a valid union-shop clause as authorized by Section 8(a)(3) of the Act. WE WILL offer Thomas J. Richmond and Louis Vore each immediate and full reinstate- ment to his former position or one substantially equivalent thereto, without prejudice to their seniority and other rights and privileges en- joyed by each , and make each whole for any loss of pay he may have suffered by reason of his discharge , with interest thereon at the rate of 6 percent. All our employees are free to become or remain, or refuse to become or remain, members of said District Lodge No. 63, or any other labor organiza- tion. Dated By GEORGE H. GENTITHES, THOMAS W. EVANS, AND PHILIP S. HAGA, PARTNERS, D/B/A HAGAN OLDSMOBILE-CADILLAC (Employer) (Representative ) (Title) We will notify immediately the above-named in- dividuals, if presently serving in the Armed Forces of the United States, of the right to full reinstate- ment, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977.