Crandall-Hicks of Wellesley. Inc.

CRANDALL-HICKS OF WELLESLEY Crandall-Hicks of Wellesley. Inc. andDistrict Lodge No. 38, International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 1-CA- 6766 and 1-RC-10,669 August 21, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On March 25, 1970, Trial Examiner Henry L. Jalette issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. In addition he found that Brian Beetlestone was not a supervisor and that his challenged ballot should be opened and counted. Further he found that since Robert Burns was unlawfully discharged his ballot should be opened and counted. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings,2 conclusions, and recommendations of the trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- ' A case presenting related issues, 1-RC-10669, was severed by the Trial Examiner and remanded to the Regional Director for Further action ' We agree with the Trial Examiner's finding that the Respondent was aware of the concerted and union activities of its employees Donald Flannery and Robert Burns However, in the absence of record evidence that Burns discussed the scheduled union meeting with the employees after his return to the shop on June 12, 1969, we do not adopt the Trial Examiner's finding that the Respondent was aware that a union meeting had been scheduled for the evening of the following day 55 tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Crandall-Hicks of Wellesley, Inc., Boston, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Henry L. Jalette, Trial Examiner On August 15, 1969,' a complaint issued against the above-captioned Employer alleging that it had engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by discharging Donald Flannery and Robert Burns for having engaged in concerted activities and by promises of economic benefits to employees on June 16.1 The complaint was based on a charge and amended charge filed by the above-captioned Union on June 27 and August 6, respectively. Pursuant to an agreement for consent election executed on August 26 in Case 1-RC-10,669 an election was held on October 2 in a unit of the Employer's employees in which Robert Burns and Brian A. Beetlestone cast chal- lenged ballots which were determinative of the results of the election.' Beetlestone's ballot was challenged by the Union on the ground he was a supervisor and Burns' ballot because he was not on the eligibility list, having been discharged on June 13 Burns' eligibility depends on the determination of the complaint allegations that he was discharged because of his concerted activities. On November 5, the Regional Director issued a Report on Challenges resolving, inter alra, the challenge to the ballot of Beetlestone. On November 10, the Employer filed a motion to reconsider in which a hearing was requested. On November 20, the Regional Director granted the motion and issued an order consolidating the complaint and repre- sentation cases for hearing before a Trial Examiner, the representation case to be severed upon issuance of the Trial Examiner's Decision for further action by the Regional Director in accordance with article 6 of the agreement for consent election. On December 17 and 18, a hearing was held before me in Boston, Massachusetts. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I make the following: ' All dates appearing hereinafter are for the year 1969, unless otherwise indicated ' The complaint also alleged that Respondent made promises of econom- ic benefits to employees at dinner meetings on June 17, 18 and 19 (par 8(d)). At trial, pursuant to motion of General Counsel, par 8(d) was stricken ' The revised tally of ballots shows that 15 valid votes were cast for, and 14 valid votes against, representation by the Union (Petitioner) 185 NLRB No. 1 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDING OF FACTS 1. THE BUSINESS OF RESPONDENT Respondent is a Massachusetts corporation engaged in the sale, repair, and distribution of automobile and related products with its principal office and place of business in the town of Wellesley , Massachusetts. Respondent in the course and conduct of its business operations annually receives automobiles and parts valued in excess of $50,000 from points located outside the Commonwealth of Massa- chusetts and annually has gross retail sales of automobiles in excess of $500,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. iI. THE LABOR ORGANIZATION INVOLVED District Lodge No 38, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. IIi. THE ALLEGED UNFAIR LABOR PRACTICES A The Facts After lunch on June 10, the following petition signed by 22 of Respondent's employees was turned over to General Manager Dorrwachter: "The employees of the Crandall- Hicks Company of Wellesley request that a general meeting be called on June 11, 1969 at 12 p.m. in the lunch room. The reason for this meeting to be called is to give the employees of the Crandall-Hicks Company a chance to air their grievances, and to discuss a twenty cent an our raise." The petition had been prepared by employees Donald Flannery and James L. Rogers, both of whom solicited signatures to it. After it had been circulated, Flannery gave it to Shop Foreman Brian Beetlestone. Thereafter, the employees were assembled in a group and addressed by Dorrwachter who told them that he was not prepared to meet the next day and that he could not make a decision and come up with something in a 24-hour period, but he would do so before the end of the week. Flannery objected to the delay and Dorrwachter reiterated what he had said before On June 11, during the lunch period, the employees met in the lunchroom and signed another paper which stated: We the undersigned employees of Crandall Hicks of Wellesley are in favor of an employee's organization to represent us! This was signed by 21 employees. In the discussion that accompanied the signing, mention was made of the Union, and Robert Burns mentioned that he knew Joe Cuskey, a representative of the Union, and he gave Cuskey's card to Flannery. That same afternoon, Flannery received a telephone call that his son had fallen and had injured himself on his way from school. He told Shop Foreman Beetlestone and Service Manager Charles Macero and received permission to leave. The child spent the night at the hospital and was released the following morning. That morning Flannery was 45 minutes late for work. Immediately after his arrival, he was called to Macero's office and was discharged. Macero told him he had been warned and that he was late again. Flannery explained about his son being in the hospital and Macero told him that was no excuse. On Thursday, master mechanic Robert Burns met with Union Representative Cuskey at a nearby Ford dealership and they arranged for a meeting of employees in the lot of the dealership for Friday, 5:30 p.m. On the morning of June 13, Respondent posted a schedule of meetings to be held in four groups of employees (master mechanics, B. mechanics, parts men, and body shop employees), listing the names of all employees in each group. The meetings were to be held at a local restaurant after working hours with the master mechanics scheduled for the first meeting to be held Monday, June 16 It appears there was opposition to a supper meeting, and Burns, in particular, told Macero around 1:30 or 2 p in. that he would be unable to attend At 5 15 p.m , Burns was called to Dorrwachter's office and discharged A meeting between Dorrwachter and the master mechanic was held at 11 a.m, Monday, June 16. The employees discussed complaints about service in the parts department and complaints about the bonus system pursuant to which they were paid. Under the existing system, they received a guaranteed hourly rate, plus $5 for each percentage point by which their productivity exceeded a standard of 90 percent efficiency. Dorrwachter suggested that until a substitute plan could be developed each mechanic would be guaranteed a $75 monthly bonus This represented an average of what a master mechanic might receive as a monthly bonus under the existing formula. B. Analysis and Conclusions Flannery was employed by Respondent and its predeces- sors for almost 5 years. There is no dispute about the quality of his work and during the 5-month period preceding his discharge he twice received the general manager's $100 monthly bonus for top production Flannery had an egre- giously bad tardiness record, 'but it had long been condoned. Respondent contends that its condonation of Flannery's tardiness ended when Service Manager Macero warned Flannery in late May that if he were late again without excuse he would be fired. While the record supports a finding that Macero spoke to Flannery about his tardiness in late May, it does not support a finding that he gave Flannery an express warning. I specifically asked Macero whether he had expressly warned Flannery and he replied, "That's exactly what I meant. That's exactly what he realized." Moreover, Flannery was late thereafter (3 minutes June 3, 25 minutes June 5, 3 minutes June 9, and 2 4 For the period from July 5, 1968, to the date of his discharge, excepting the periods from March 21 to 27 and April 4 to May 9 for which no timecards were submitted , Flannery was tardy 149 times, 93 of which were in excess of 15 minutes CRANDALL-HICKS OF WELLESLEY 1/2 minutes June 11) and nothing was said to him about it. In these circumstances, it is evident that Macero's admoni- tion to Flannery in late May was not a final warning. Yet, on the morning of June 12, despite the fact that he knew Flannery had left work early the day before because of an injury to his boy, Macero discharged him summarily without waiting to learn whether Flannery had a good excuse.' Such precipitate action after such a long period of condonation immediately after Flannery's concert- ed activities can only be attributed to those activities. Flannery was not only one of the instigators of the petition of June 10, but also he objected to Dorrwachter about a delay in meeting with him. He was responsible for a petition for representation by an employee's organiza- tion which was signed by 21 employees on June 11 in a meeting in the lunch room, and he was the individual to whom Burns gave the business card of the union represent- ative. There is no direct evidence that either Macero or Dorrwachter knew about this meeting, and Macero denied knowing about it I do not credit him. The lunch room is only about 200 square feet in size and is not normally used by a large number of employees at one time. Given the location and time of the meeting and the facts that it followed by one day the presentation of an employee petition and that it was attended by about 21 employees in a unit of about 31 employees, the inference is warranted that both Macero and Dorrwachter learned of the meeting and its purpose. In reaching the conclusion that Flannery was discharged because of his concerted activities, I have weighed Dorr- wachter's testimony that in early May the decision was made to discharge him and Burns when replacements could be obtained. Apart from the fact that I was not impressed by Dorrwachter's demeanor, his testimony about the alleged early May decision is patently unbelievable.' According to his own testimony, later that same month Burns received a $50 bonus for bringing in a mechanic, yet neither Burns nor Flannery was discharged in accordance with the early May decision. I can understand a reluctance to rely on that new employee as a replacement for Burns, but why not for Flannery who was coming to work late nearly every day during May? Even more, a new mechanic, Frank Santin, was employed on June 6, and although he is alleged to be one of the replacements for Flannery or Burns, there is no explanation why neither Flannery or Burns was told on June 6 that he was discharged.' This resorting to false defenses supports a finding that the true reason for Flannery's discharge was his concerted activities. ' I was not persuaded by Flannery's excuse, but that is immaterial since Macero had not bothered to discover what it was before discharging him 6 Macero's testimony on this subject is too indefinite to constitute corroboration He did not state on direct examination that such a decision was made, and his answer to General Counsel's question on cross- examination was ambiguous and appears to relate to Macero's warning to Flannery which occurred in late May, rather than an early May decision ' At one point in Dorrwachter's testimony, it was unclear when Frank Santin reported to work. At a later point, Dorrwachter indicated it was June 6 , and Santin 's name appears on the petitions signed by the employees on June 10 and 11 57 In Burns' case, the evidence of unlawful motivation is more compelling because there was no showing that there existed a cause for discharge. Burns, a master mechanic, was employed by Respondent for about 31/2 years before his discharge on June 13. On that day, without prior warning, he was discharged by Dorrwachter and given the following reasons: "It has to do with your attitude and your conduct and the way you conduct yourself and our inability to get along together peaceably, and those are the reasons. . . I think you are too aggressive . . . . You have been very belligerent. It is evident that there is no substance in the words chosen by Dorrwachter to discharge Burns. They have meaning only as they are attached to examples of Burns' conduct None was given that related in any way in point of time to the date of the discharge. First of all, there is the charge that Burns had refused to push a car out of a snowbank 6 months earlier, a charge admitted by Burns with the reasons for his refusal.' At the time of the incident, Burns was not reprimanded. Another example of Burns' misconduct was his unauthor- ized absence from work on April 26, Patriot's Day, a matter about which he was warned. There was no repetition and Dorrwachter did not mention this in his terminal interview. Then there is testimony that Burns created a noise disturb- ance in the shop on some unspecified date in late May in which he was joined by other employees. Although allegedly the instigator, and although it appears that Burns had engaged in similar conduct on other occasions, Burns was not reprimanded individually but only as part of the group who participated. Next, there is Dorrwachter's testimony that Burns threat- ened to refuse work assignments; however, not only did he not say when this occurred, but also, in testifying further on this matter, he clearly indicated that Burns had not refused any work assignments and that his testimony was based on a feeling that Burns was "going to threaten to refuse." Another example was Burns' alleged attitude about com- pany insurance; that is, Burns would "ride out a benefit program to its maximum limits, and he made statements like this to other people in the shop." This implication that Burns was a malingerer was supported by reference to an incident a year earlier when Burns, to protect his family from injury from a firecracker thrown in his direction at a July 4 celebration, had placed his hand over the firecracker and it had exploded in his hand On what Dorrwachter based his claim of malingering is not clear; it is clear, however, that he never confronted Burns with such as accusation, either then or at any later time. Finally, Burns was described as an habitual complainer. This allegation paralleled the one given by Service Manager ' This reason for discharge was one of those used by Dorrwachter in Burns' version of the termination conversation Dorrwachter did not include this in his version but did not deny referring to the incident Service Manager Macero did not testify about the terminal conversation, although he was present I credit Burns 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Macero, whose contribution to the litany of adjectives descriptive of Burns' misconduct was that Burns was argu- mentative. When asked what Burns had done in the week immediately preceding his discharge to explain why he was suddenly discharged, Macero's only answer was, "The same thing he always did.... The same thing, arguments here and there on certain repair orders." The lack of specificity in the charges against Burns, the staleness of the charges where specificity was tried, and the absence of any warning are evidentiary factors that support a finding that Burns' discharge was motivated by reasons other than his work performance. When these factors are weighed in the light of the timing of the discharge, it is evident that Dorrwachter's reference to Burns' attidude, his aggressiveness, and his belligerence was a reference to Burns' rejection of Respondent's plan to deal directly with employees and Burns' preference for dealing with an outside organization. I have already indicated that an inference was warranted that Dorrwachter and Macero knew about the lunch room meeting of June 11 and the discussion of the employees. Burns was not only a signatory to the petition of the employees expressing a desire for representation by an employee's organization, but also he gave impetus to the petition by supplying the business card of the union repre- sentative for future contact and by offering to obtain an answer to questions posed about initiation fees. I also find that Dorrwachter knew of the union meeting scheduled for 5:30 p.m. that day. As noted earlier, after the lunch room meeting Burns met with a union representa- tive and arranged for a meeting of employees on a nearby automobile lot at 5:30 p in on Friday. There is no evidence of the way in which he notified fellow employees about the proposed meeting , but it is reasonable to assume that he did so at the shop and that Respondent learned of the meeting.' Apart from that, the timing of Dorrwachter's action strongly supports an inference of knowledge. All the reasons assigned by Respondent for discharging Burns were known to it before it posted a schedule of employee meetings for June 16 which included Burns' name. The only thing that happened thereafter was Burns notification he would not attend the employee meeting and his plan to attend the union meeting after work. In the final analysis, there is no explanation for Burns' discharge on Friday except his union activities. Dorrwacht- er's explanation that since Flannery had been discharged he decided he might as well implement the early May decision to discharge them both is no explanation. Why did he not discharge Bums on Thursday when Flannery was discharged? Flannery's time cards and Respondent's Exhibit 1 indicate that the work week ends on Thursday. Moreover, I have already pointed out that Dorrwachter's explanation that the delay in discharging Flannery and Burns was occasioned by a need to obtain replacements does not withstand analysis. Thus, even if Santin were conceded to be a replacement for Flannery, by firing Burns on June 13, Respondent was still left with one mechanic " It is clear employees learned of the meeting because Macero admitted he saw most of the employees gathered at the parking lot after work short because the so-called second replacement was not scheduled to report to work until late June. Since Respond- ent had allegedly been forbearing with Burns since early May, and he had not engaged in any conduct requiring that his discharge be expedited, why did Respondent not wait? Respondent contends that a finding of a violation in this case can only be derived from inferences, coupled with a disbelief in the reasons advanced by its witnesses relative to the discharges. Is this not always the case? In my judgment, the testimony of Macero and Dorrwachter about the reasons for the discharge of Bums and Flannery is patently unbelieveable and is belied by their conduct, which is a more reliable guide to their motives. "It is well known that a given fact may be proven indirectly as well as directly. If one can show that every other alternative except the fact sought to be proven is not true, you indirectly prove that fact is true. By excluding every other reasonable hypothesis that fact is left standing alone as proved. The evidence before the Board aimed at this goal. By showing that there was no other reasonable explanation for Miss Thieles not being rehired, her union activity stood out as the logical explanation of her employer's action. While this method is not infallible, it succeeds in providing circumstantial evidence to illuminate the issue." The foregoing quotation from N. L. N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8) is illustrative of the process by which I have concluded that Flannery and Bums were discharged because they engaged in concerted activities. In the case of Flannery, the condonation of his tardiness record, the fact that after a warning about improving his habits he continued to be tardy without comment (including 25 minutes late on June 5), and that he was summarily discharged on June 12 when Macero had reason to believe there was a good excuse and did not even bother to check are factors which, taken together with Flannery's concerted activities of June 10 and 11, compel the conclusion that the tardiness of June 12 was used as a pretext to fire Flannery for his concerted activities. In the case of Burns, I have eliminated as reasons for discharge the asserted reasons of "attitude," "belligerent," and "aggressive," because they are meaningless labels which can apply equally to an employee's protected activity and to misconduct on the job . In my opinion, Respondent's asserted reasons were , in fact, an oblique reference to Burns' concerted activities. I have eliminated the specific items of misconduct relied on by Respondent because of their staleness and the absence of any reprimands or warnings. I am left with a discharge action that relates in point of time to only one act of Bums; namely, his concerted activities. Perforce, considering the fact that Burns had never been warned that his attitude, or aggressiveness, or belligerence would lead to his discharge , and considering the timing of the discharge I conclude that the discharge was motivated by Bums' concerted activities. In rejecting Respondent's defenses, I have weighed the fact that there is no evidence of union animus or of animus CRANDALL-HICKS OF WELLESLEY toward protected concerted activities. " It is not essential that there be evidence of such animus. As stated in Terry Industries of Virginia, Inc., 164 NLRB 872, 874, enfd. 403 F.2d 633 (C.A. 4): In the ordinary case, the General Counsel is able to point to other antiunion conduct of the employer as support for the inference that union activity was the real reason for the discharge which the employer sought to explain on false grounds. In this case . . I find that apart from the discharges themselves, the Company engaged in little overt antiunion conduct. But just as the showing of other antiunion conduct is of some support, but is not conclusive, in establishing that a particular discharge was for union activity, so the comparative absence of such conduct is not conclusive in establishing that a discharge was not for union activity. A contrary rule would mean that an employer could discharge union leaders with impuni- ty if he refrained from other acts of hostility to the union The ultimate question is what was the reason for the discharge, and the presence or absence of other antiunion actions is an aid to answering the questions, not an answer in itself. [Footnote omitted.] Accord N L R.B v Mrak Coal Company, Inc, 322 F.2d 311, 313 (C.A. 9), where the court held that it could not "accept the respondent's theory that proof or lack of proof of prior anti-union animus is controlling explaining that such a rule would automatically always insulate the first unfair labor practice charged against an employer." See also N L R.B. v Tepper, d/b/a Shoenburg Farms, 297 F.2d 280 (C A. 10). Finally, I have weighed the fact that there is no showing of discrimination against either the employee who, with Flannery, sponsored the petition of June 10 or against the office employee who prepared the petition on company stationery. However, as stated in N.L.R.B. v. Puerto Rico Telephone Co., 357 F.2d 919, 920 (C.A. 1), "A violation of the Act does not need to be wholesale to be a violation. [Cases cited.]" Moreover, Burns' and Flannery's activities differed in degree and kind from those of other employees. It was Burns who produced the business card of a union representative and it was Flannery who received it. It was Burns who arranged for a meeting with the union representative at 5:30 p.m, Friday and who refused to attend the meeting between management and the employees which Dorrwachter scheduled. The complaint alleges that Flannery and Burns were discharged because of their concerted activities, and Respondent contends that I am thereby precluded from 10 General Counsel contends in his brief that the adjustment adopted by Dorrwachter on June 16 had the effect of causing four of the five master mechanics to lose money and this constituted 8(a)(1) conduct. This contention is wholly without merit The complaint does not allege such a violation To the contrary, it alleges that the very same adjustment which General Counsel now contends was a loss of earnings was a promise of benefit While the record appears to show a reduction of bonuses for a period of 1 month, the adjustment was the result of a mutual agreement between the employees and Dorrwachter There is no evidence of a purpose on Respondent's part to interfere with, restrain, or coerce its employees in the exercise of their Sec 7 rights I am recommending dismissal of the independent 8(a)(1) allegation based on the adjustment agreed to between Respondent and the employees 59 considering Burns' "union activities" in determining motive for his discharge. I find no merit in this contention. The issues were fully litigated , and I note that Respondent did not object to the evidence elicited by General Counsel relative to the activities aimed at obtaining union representa- tion. Moreover, while General Counsel eschewed use of the words "union activities" and eschewed amending the complaint to allege an 8(a)(3) violation, he stated clearly on the record that he was relying on those activities which had been described in the record . In certain situations, and this is one of them , the terms "concerted activities" and "union activities" are interchangeable, and an allegation of discharge in violation of Section 8(a)(1) of the Act encompasses a discharge for union activities . In the circum- stances of this case, I would be justified in finding that Burns' and Flannery's discharges were violative of Section 8(a)(3) of the Act as well as Section 8(a)(1). Frito Company, Western Division v. N.L.R.B., 330 F.2d 458 (C.A. 9); N. L. R. B. v. Dennison Mfg. Co., 419 F 2d 1080 (C. A. 1); Laclede Gas Company v. N.L.R.B., 421 F.2d 610 (C.A. 8); Independent Metal Workers Union, Local No. 1, 147 NLRB 1573, 1576. However, since such a finding would not make any difference in the remedy, I will limit my finding to Section 8(a)(1) of the Act, including as part of the concerted activities the activities in favor of, or aimed at, union representation. IV. THE CHALLENGED BALLOTS As noted earlier, Robert Burns and Brian Beetlestone cast challenged ballots which are determinative of the results of the election. Burns' ballot was chellenged because he had been discharged and his name was not on the eligibility list. Inasmuch as I have found that he was unlawfully discharged, I shall recommend to the Regional Director that his ballot be opened and counted. The challenge of Beetlestone's ballot was based on his alleged supervisory status. Beetlestone is shop foreman and admittedly was a supervisor within the meaning of Section 2(11) of the Act prior to January 1 li Before January 1, the employer was Crandall Hicks Com- pany, a combined wholesale and retail operation. This opera- tion was split up to form three corporations, one of which was Respondent. At a meeting of employees held December 31, 1968, Carl Dorrwachter was introduced as the new general manager, and he explained the corporate changes to the employees and the effect of those changes on them. Dorrwachter also introduced the new service department manager, Charles Macero, and told the employees that Beetlestone would be a technical advisor. According to Dorrwachter, after the meeting Beetlestone asked him if he was still going to boss the shop and he was told no. Dorrwachter testified that from the time of that meeting Beetlestone had no authority to hire, fire, or discipline employees, nor had he done so. As a technical " Dorrwachter attempted to show that after January 1, Beetlestone was a technical advisor and not shop foreman. It is clear from all the evidence, including Dorrwachter's preheanng statements , that whatev- er Beetlestone's authority may have been after January 1, he was still shop foreman 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advisor, his duties consisted in road testing car to determine what service was needed, and, after they were serviced, to see if they performed satisfactorily. This occupied 40 to 50 percent of his time. Beetlestone was also a trouble shooter, assisting other mechanics who needed help with certain jobs. Normally, Beetlestone is not assigned a service job unless it is one that can be handled quickly. (Beetlestone does not have a set of tools of his own at the shop.) In addition, Beetlestone handles customers seeking safety inspection. This occurs twice a year and lasts 6 weeks each time. Service Manager Macero assigns the work either directly or through Beetlestone. In the latter instance, he will normal- ly designate which mechanic should receive the assignment. Frequently, it is not necessary to do so, because the type of work involved dictates that the assignment go to a particular mechanic. In Macero's absence, Beetlestone assigns the work Mace- ro could be absent for various reasons, vacation, illness, tardiness, lunch, business. During the period between his becoming service manager and the date of the election, Macero was absent 3 days because of illness, took a 2- week vacation and was absent for other reasons for a total of about 10 hours. Unlike other employees, Beetlestone does not punch a time clock He is paid a weekly salary of $173, plus $20 per week to conduct a training session one evening each week. If a training session is not held, Beetlestone still receives the additional $20. Before January 1, Beetlestone received 1 percent of the salary of each man in the shop under his supervision plus a bonus based on a formula geared to the efficiency of the men It is not clear what Beetlestone's average weekly income was pursuant to that system, but apparently it was less than he received after January 1, because he complained and as a result the training session device was used to add to his income. The employees are paid an hourly rate plus a bonus based on productivity and some master mechanics earn as much or more than Beetlestone. Beetlestone receives the same fringe benefits as other employees, except that he is paid if he is absent for a day or so; if he is ill, he is paid from the first day of illness whereas other employees are not paid for the first week. In this regard, Beetlestone enjoys the same benefits as Body Shop Foreman Wallace, an admitted super- visor. I conclude that Beetlestone is not a supervisor within the meaning of Section 2(11) of the Act. There is no evidence to contradict the testimony of Dorrwachter that about January 1 Beetlestone was stripped of his authority to hire, fire, or discipline employees. While Beetlestone did not corroborate Dorrwachter that after the December 31 meeting with employees he asked Dorrwachter if he was still boss and was told no, Beetlestone confirmed that at some point shortly after Macero became service manager he was stripped of his authority. There is no evidence that after January 1 Beetlestone exercised any supervisory authority such as hiring, firing, or disciplining employees. If he were to be found to be a supervisor, it would have to be because he substitutes for Macero in his absence and assigns work to employees. The fact that he has substituted for Macero during the beef period he has been absent is, in my opinion, insufficient basis to find that he is a supervisor. The principal function he performs on those occasions is to make assignments of work and I am not persuaded that this requires the exercise of independent judgment. Beetlestone testified credi- bly that when substituting for Macero he has no authority to hire, fire, or discipline employees. While he gave an employee permission to take time off on one or two occasions when Macero was absent, such an isolated exercise of supervisory authority is insufficient to support a finding of supervisory status." In arriving at the conclusion that Beetlestone is not a supervisor within the meaning of the Act, I have considered the fact that he is referred to as shop foreman and even wears a uniform with the insignium "Service Manager " While this is a factor supporting a finding of supervisory authority, it is insufficient in the absence of other evidence of supervisory authority, and while I have some reservations whether the record correctly describes Beetlestone's authori- ty, I cannot help but note that only one employee was called to testify about Beetlestone's duties, and he was a relatively new employee. On the other hand, Burns and Flannery, senior employees who testified relative to their discharge, were not examined about Beetlestone's status The record consists principally in the testimony of Respond- ent's own witnesses and their testimony sustains a finding that Beetlestone is not a supervisor within the meaning of the Act. Accordingly, I shall recommend to the Regional Director that Beetlestone's ballot be opened and counted. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate and substantial relation to trade, traffic and commerce among the several states, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent violated Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent discharged Donald Flannery and Robert Burns because of their concerted activities, I shall recommend that it be ordered to offer them immediate and full reinstatement to their former " There is some suggestion in the record that Beetlestone also gave Flannery permission to leave early on June 11, but the emergency nature of Flannery's request for permission to leave on June 11 suggests that approval was a matter of routine not requiring the use of independent judgment or supervisory authority I note further that Macero had been apprised of the matter, because he had started out to tell Flannery he could leave when he met him as he was leaving Macero told Flannery he could go CRANDALL-HICKS OF WELLESLEY jobs or, if those positions no longer exist , to a substantially equivalent position , without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings they may have suffered by reason of their unlawful discharge by payment to them of a sum of money equal to that which they normally would have earned as wages, from the date of their discharge to the date of the offer of reinstatement less net earnings, to which shall be added interest at the rate of 6 percent per annum in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb- ing & Heating Co., 138 NLRB 716. The discharge of employees because they engage in pro- tected concerted activities strikes at the very heart of employ- ee rights safeguarded by the Act. I shall therefore recommend that Respondent be placed under a broad order to cease and desist from in any manner infringing on the rights of employees guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Manufacturing Co., 120 F.2d 532, 536 (C.A. 4). In accordance with the order consolidating cases and the terms of the agreement for consent election providing for a final decision of the issues in the R case by the Regional Director rather than by the Board , I shall order that Case 1-RC-10,669 be severed and remanded to the Regional Director for Region I for further processing as he deems appropriate. CONCLUSIONS OF LAW 1. Crandall-Hicks of Wellesley, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge No. 38, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Donald Flannery and Robert Burns because of their protected concerted activities, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in this case, I hereby issue the following: RECOMMENDED ORDER Respondent, Crandall-Hicks of Wellesley, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees because they engage in protect- ed concerted activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization , to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act or to refrain from any or all activities. 61 2. Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Offer Donald Flannery and Robert Burns immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights or privi- leges, and make them whole for any loss of pay they may have suffered by reason of their unlawful discharge by payment to them of a sum of money equal to the amount they normally would have earned as wages from the date of their discharge to the date of their reinstatement in the manner set forth in the section entitled "The Remedy." (b) Notify the above-mentioned employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board and its agents for examination and copying all payroll records, social security payment records, timecards, personal records and reports, and all other records relevant and necessary to a determination of the amounts of backpay due under the terms of this Recommended Order. (d) Post at its Wellesley, Massachusetts, places of business copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e)Notify the said Regional Director, in writing, within 20 days from the date of this Decision, what steps Respond- ent has taken to comply herewith." As to the allegations of the complaint found not to have constituted violations of the Act, it is recommended that they be dismissed. " 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 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 " " 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 " 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order Severing and Remanding Case 1-RC-10,669 Case 1-RC-10,669 is hereby severed from the consolidat- ed proceeding and remanded to the Regional Director for Region I for further action as he deems appropriate in accordance with Section 102 62(a) of the Board's Rules and Regulations. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge employees because of their concerted activities, including their activities in favor of, or preference for, representation by District Lodge No. 38, International Association of Machinists and Aerospace Workers, AFL-CIO or any other labor organization. Since the Board found that we violated the law when we fired Donald Flannery and Robert Burns, we will offer them their jobs back and we will pay them for any loss of pay they may have suffered because we fired them. CRANDALL-HICKS OF WELLESLEY, INC (Employer) Dated By (Representative) (Title) NOTE: WE WILL notify the above-mentioned employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after dis- charge from the Armed Forces. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 20th Floor, John F. Kennedy Federal Building, Cambridge & New Sudbury Streets Boston, Massachusetts 02203, Tele- phone 617-223-3353.