Super Tire Stores

SUPER TIRE STORES Grand Auto, Inc., d/b/a/ Super Tire Stores and Auto- motive Teamsters, Chauffeurs and Miscellaneous Employees, Local 165, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 20-CA-12535 and 20- RC-13888 June 13, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENEFI. O AND TRUESDALE On January 25, 1978, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief and the General Counsel filed limited exceptions and a memorandum in sup- port thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' rec- ommendations, and conclusions 2 of the Administra- I The Respondent has excepted to the Administrative Law Judge's find- ing that it violated Sec. 8(aX3) and (I) of the Act by transferring Mcintosh in order to reduce the number of its employees in the appropriate unit to one and thereby to preclude the holding of an election. We find no merit in this exception, as we agree with the Administrative Law Judge's finding that the transfer of Mcintosh was motivated by Mcintosh's union activity rather than by economic considerations, as contended by the Respondent. lo,.u- ever, we do not rely on ceratin statements made by the Administrative liaw Judge in his opinion which tend to convey the impression that he was substl- tuting his business judgment for that of the Respondent in finding the trans- fer of Mcintosh to be unlawful. For example. in analyzing the Respondent's refusal to hire an additional employee to handle the increase in business following Mcintosh's transfer, the Administrative Law Judge stated that "it appears that no business management would have accepted this undesirable situation unless it was motivated by strong desire to defeat the Union bh making the store a one-man unit." Board law does not permit the trier of fact to substitute his own subjective impression of what he would have done were he in the Respondent's position. FPC Adverrising, Inc . 231 NLRB 1135 (1977). The General Counsel has excepted to the Administrative Law Judge's finding that "according to the testimony of Murphy, he advised his superi- ors on a number of occasions by telephone of the need for an additional employee." We find merit in this exception inasmuch as Murphs did not testify at the hearing. It is apparent, however. that the Administrative lIavs Judge was refernng to the testimony of Grant as to what Murphs told him. as indicated by fn. 4 of the Administrative Law Judge's Decision. in which it is acknowledged that the events occurring at the Watt Avenue store subse- quent to Mcintosh's discharge were based entirely on the uncontradicted testimony of Grant. 2 The General Counsel has excepted to the Administrative Law Judge's Conclusion of Law 3, in which he states that "Iwlith respect to the objec- tions to the election. I hereby overrule the objections," as well as to the Administrative Law Judge's statement in his recommended Order that "1 further order that the objections to the election be overruled" Since no objections to the election were filed, we find merit in the General Counsel's tive Law Judge, only to the extent consistent here- with. The Administrative Law Judge found that the Re- spondent violated Section 8(a)(3) and (I) of the Act by transferring Mcintosh out of its Watt Avenue store in order to reduce the number of employees in the appropriate bargaining unit at that store to one, and thereby to preclude the holding of an election. We agree with this finding. However, in his recom- mended remedy, the Administrative Law Judge re- quired the Respondent to reinstate McIntosh with backpay from the date of his subsequent discharge from the store to which the Respondent had trans- ferred him. The General Counsel has excepted to the Administrative Law Judge's failure to set forth the reasons why Mclntosh is entitled to backpay computed from the date of his discharge. For the reasons discussed below, we find merit in this exception. The record reveals that McIntosh was transferred from the Respondent's Watt Avenue store to a Grand Auto store, also owned by the Respondent. Although McIntosh did not suffer any reduction in his wage rate or hours, he was required to join the Machinists Union pursuant to a union-security clause contained in the collective-bargaining agree- ment between the Machinists and the Respondent. On February 10. 1977, McIntosh was terminated by the Respondent because he had failed to tender his dues or initiation fees as required by the collective- bargaining agreement. In order to remedy adequately the discriminatory transfer of McIntosh by the Respondent, we shall require, contrary to the Administrative Law Judge. that McIntosh be reinstated with backpay from the date of his discriminatory iransfer, rather than from the date of his subsequent discharge. It is well-estab- lished Board law that an employer must not only exceptions Howeser, we note thit the unfair labor practice case (20 CA 12535) was consolidated for hearing vlth a representation case t20 RC 138S8), the latter presenting the issue of a challenge to the ballot of Mc- Intosh. Since the Adminlsirrtive l.as. Judge found that Mcintosh had been unlawfully transferred prior to the election, and as he correctly ordered that McIntosh's ballot he opened and counted, im is apparent that the Adminis- trative I a'. Judge inadvertently referred to the challenged ballot as an 'ob- ectioll." ' Ihe Administrative lasw Judge's inadvertent error will be correct- ed In iour Order herein The General Counsel has also excepted to the Administrative L aw Judge's failure to reach a conclusion of law that Store Manager Murphy's statement to the employees that his superior was unhappy with him because of his inahilht to control the employees violated Sec 8(a}(I) of the Act Sinte the .dminisiratlve l.au Judee ctorrectls found that Murphy's state- ment to the emplosees srilated the Act. we shall amend the Administrative La[ Judge's conclusions of law accordingly In addition, the General Coun- sel has excepted to the Administrative l.aw Judge's description of this 8(a( 1) violalion in par I1(ca of his Order and in the final paragraph of his notice, in shlich he stated the solation to be for the actual criticism of Murphs hb the Respondent Since the ,violalton as found b, the Administra- tlie iLa.l judge was for the statement hb Murphy to the employees that management was upset with his inabhils to control the employees' union actl.ties, se find merit in the General (:ounsel's exception We shall mod- ifs the Order and notice acordingls 236 NLRB No. 99 877 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bear the responsibility for its discriminatorily moti- vated conduct, hut must also bear the responsibility for the consequences which flow from such conduct.' Accordingly, we shall order the Respondent to rein- state McIntosh to the position he held at the Watt Avenue store on the date of his transfer, with back- pay to be computed from the same date. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 3: "3. By the statements of Store Manager Murphy to employees Grant and Mcintosh that Murphy's su- perior was unhappy with him because of his inability to control the employees' union activities, the Re- spondent violated Section 8(a)(1) of the Act." TnIE REMEDY We have found, in agreement with the Administra- tive Law Judge, that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. In order to effectuate the purposes of the Act, the Respondent will be ordered to cease and desist from engaging in such unfair la- bor practices and to reinstate Robert Mcintosh to his former postition at Respondent's Watt Avenue store or, if such position no longer exists, to a substantially equivalent position, without loss of seniority and other rights and privileges. The Respondent will also be ordered to make Mcintosh whole for any loss of earnings he may have suffered by reason of his dis- criminatory transfer, by payment of a sum equal to what he normally would have earned from the date of the discriminatory transfer to the date the Respon- dent offers him reinstatement, less his net earnings, if any, during that period. Backpay and interest thereon shall be computed in the manner prescribed in F. W. Woolwoirth C(ompany, 90 NLRB 289 (1950), and Florida Steel C'orporation, 231 NLRB 651 (1977). 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Grand Auto, Inc., d/b/a Super Tire Stores, Sacramento, Cali- fornia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees as to their union activities or otherwise interfering with the union or other protected concerted activities of its employees. 3orrr Bro,¶. In-oirporated, 176 NL.RB 590, 596 (1969): Anderson-Roonev Ope'ratuin (Comprlan, 134 Nl.RB 14(10, 1481 (1961). See. gnerail r. Isi P/lumbing & Ilu'atlnn Co., 138 NLRB 716 (1962). (b) Interfering with the union activities of its em- ployees by informing them of management's criti- cism of the store manager's inability to control the employees' union activities. (c) Transferring employees in order to reduce the number of its employees in the appropriate bargain- ing unit to one and thereby to preclude the holding of an election. (d) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Robert McIntosh immediate and full re- instatement to his former position at the Super Tire store at Watt Avenue in Sacramento, California, or, if this position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him in the man- ner described in "The Remedy" section of this Deci- sion. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and any other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Watt Avenue Super Tire location in Sacramento, California, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized repre- sentative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other ma- terial. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the Regional Director for Region 20 shall, within 10 days of this Decision, open and count the ballot of Robert McIntosh and thereafter prepare and serve on the parties a revised tally of ballots, including therein the count of said In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 878 ballot, and upon that basis he shall issue the appro- priate certification. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees as to their union activities or otherwise interfere with the union or other protected concerted activities of our employees. WE WILL NOT interfere with the union activities of our employees by informing them of our criti- cism of the store manager's inability to control the employees' union activities. WE WILL NOT transfer employees in order to reduce the number of employees in the appro- priate bargaining unit at the Watt Avenue store to one and thereby to preclude the holding of an election. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL offer Robert McIntosh immediate and full reinstatement to his former position at the Super Tire store at Watt Avenue in Sacra- mento, California, or, if this position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, plus interest. GRAND AUTO. INC.. d/b/a SUPER TIRI STORES DECISION STATEMENT OF THE CASE BERNARD J. SEFF. Administrative Law Judge: This case came on for hearing in Sacramento, California, on July 28. 1977, based on a complaint issued by the Regional Direc- tor for Region 20 on April 29, 1977, which in turn is based on a charge filed on April 28, 1977. There is also consoli- dated with the complaint a report on challenges concerning a representation case, 20-RC-13888. The charge was filed by Automotive Teamsters, Chauf- feurs and Miscellaneous Employees, Local 165, hereinafter referred to as the Teamsters. The complaint alleges, inter alia, that Grand Auto, Inc., d/b/a/ Super Tire Stores, hereinafter called Respondent, discharged an employee be- cause of his activities on behalf of the Union which dis- charge was preceded by transfer to another of SUPER TIRE STORES Respondent's operation in order to create a one-person unit at the facility which is the subject matter of the instant case in order to prevent its employees from designating the Union as their collective-bargaining representative in a Board election. Respondent admitted certain facts which relate to jurisdiction and the supervisory hierarchy of Re- spondent but denies the commission of any unfair labor practices. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent in the instant case, Super Tire Stores, is en- gaged in the business of selling tires, wheels, batteries, and shock absorbers. Respondent's store, which is located on Watt Avenue in North Highlands, California, is part of Respondent's Super Tire Division. There are eight Super Tire Stores in Northern California, including the Watt Av- enue facility where Respondent sells at retail and wholesale the products mentioned above at its Watt Avenue store. Super Tire is located immediately adjacent to a Grand Auto Store, which is a much larger operation selling the same kind of products as well as certain other products. Both facilities are fully owned by the same company and owned and operated by Respondent. The complaint alleges and the answer admits that in the past year Respondent, in the course and conduct of its business operations. received gross revenues in excess of $500,000. During the same pe- nod, Respondent purchased and received goods which ori- ginated outside the State of California valued in excess of $50,000. I find that Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11 THE LABOR ORGANIZATION The Union is now, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. 111. RESPONDENT S SUPFRVISORY HIFRAR( I ) AND Al I l(ill) UNFAIR LABOR PR CTI( ES Respondent admits that Al Kave is the general manager of Respondent's operation: Raphael Fishman is the divi- sional manager: and John Murphy is the store manager of the store which is the subject of the present proceeding. A. Background Grand Auto is a California corporation. It operates some 60 retail auto parts stores. These auto parts stores, together with the central office, employ about 1,200 people. In addition to the 60 standard retail stores, which sell tires, auto parts, and auto service, such as brake and front- end work, they run a division which is called "Super lire- Super Tire is the wholly owned subsidiary of Grand Auto. There are eight Super Tire Stores operating in Northern 879 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California. Four of these Super Tire Stores are contiguous to Grand Auto Stores. The Grand Auto Stores throughout Northern California are covered by a collective-bargaining agreement with the International Association of Machinists Union. This Union has what Respondent calls a wall-to-wall. Bakers- field-to-Northern California jurisdiction. The contract with the Machinists Union does not cover the Super Tire division which consists of eight small stores. Four of them are located immediately adjacent to Grand Auto Stores. The Watt Avenue location, which is the subject of the pres- ent litigation. is located immediately adjacent to a Grand Auto Store. The tires sold in the Grand Auto Store are exactly the same tires and the other products are the same products as are sold in Super Tire. In fact the customer goes into the backroom and the tires are mounted on the customer's car by the employees of Grand Auto Store. When they are sold in the Super Tire Store, next door, the customer is taken to the same Grand Auto Store and the tires are mounted there. It was explained that the reason for the difference in the method of operation is that the Company is attempting to establish a public image as a wholesale division. There is a difference in price, and they also try to sell fleet sales of tires. In other words, if a customer who is just an individual comes into the Super Tire Store and buys a tire the price there is different from the identical tire in Grand Auto. Respondent in an opening statement said that the Super Tire Stores are small operations and with respect to the Super Tire Store on Watt Avenue from February 1, 1977, to date it has earned $216 without an inventory being taken to show losses. Respondent further contends that the Company in the Sacramento store, because of business problems, sometime in August 1976 gave a directive to all stores and all super- visors involved to experiment for a 15-week period with Sunday operations. The Watt Avenue store in August, along with the other seven Super Tire stores, did open on Sunday. However, this stratagem did not work. As a conse- quence, the Watt Avenue store in December eliminated Sunday work. The store was, at best, a marginal operation. As a consequence of the poor performance on Sunday, all the Super Stores were ordered by Respondent's home of- fice to reduce their payrolls. This resulted in the Watt Ave- nue store being reduced from three men to two, consisting of Store Manager John Murphy and two salesmen, Robert McIntosh and Wes Grant. After the elimination of Sunday work the Company no longer required the services of Mc- Intosh but felt that the store could be managed with Mur- phy and Grant. B. The Union's Organizational Drive and the Respondent's Response On or about November 10, 1976, McIntosh and Grant were contacted by Tony Santos, a representative of the Teamsters. He gave McIntosh and Grant authorization cards on the same date at a restaurant located near Respondent's facility and they signed the authorization cards. At the time the cards were executed there were only two employees in the bargaining unit working at Respondent's Watt Avenue facility.' On November 15, 1976, the Union filed a representation petition with the Regional Office in Case 20-RC-13888. The unit set forth in the petition included both of the em- ployees at the Respondent's facility. A few days later a copy of the petition was received by Murphy at the Watt Avenue facility. C. The Independent 8(a)(1) Activity and the Discharge of McIntosh On the day that Murphy received the papers from the Regional Office he had a conversation in the shop with Grant and McIntosh. He asked the employees what was going on and why they wanted the Union. Grant and Mc- Intosh told Murphy that they wanted the Union so that their benefits would be comparable to those enjoyed by the employees at the adjacent Grand Auto Store who are members of the Machinists union. 2 Within about 2 weeks from the receipt of the papers from the Regional Office, Murphy spoke to Grant and Mcintosh about a telephone conversation which Murphy had with Fishman (Respondent's divisional manager) who was Murphy's su- perior. Murphy told the employees that Fishman had chewed him out because he could not control his employ- ees and had allowed things to go too far. It should be noted that prior to that time Murphy had not been criticized by Respondent concerning his control over the employees.3 The General Counsel contends that this action by Respon- dent constitutes a separate violation of 8(a)(1). I concur and so find. D. Mcintosh's Transfer and the Election On December 2, 1976, the Regional Director approved a Stipulation for Certification Upon Consent Election, which had been executed by Respondent and the Union. The stipulation provided that the election would occur on De- cember 27, and the unit consisted of all employees of Re- spondent at its Watt Avenue facility excluding office cleri- cal employees, guards, and supervisors, as defined in the Act. The eligibility date established by the stipulation was November 28, 1976. On December 16, McIntosh had a conversation with Fishman and Murphy at a nearby restaurant called Herfy's. In the course of this conversation, Fishman told McIntosh that due to a lack of sales, he could elect to be laid off or transferred. Fishman asserted in the course of From November 10. 1976. to December 20, 1976, the date of Mcintosh's transfer. he and Grant remained the only two unit employees in the store. During the period from December 20, 1976. to the date of the hearing Grant was the only unit employee working in the store together with the store manager. Murphy. 2 The testimony of Grart and McIntosh concerning the substance of their conversation with Murphy was mutually corroborative. Their testimony was not contradicted by Respondent. Mcintosh did not recall the exact date on which the conversation occurred, but Grant testified credibly that it took place on the same day that Murphy received a copy of the petition from the Re gional Office. The testimony of Grant and McIntosh concerning this conversation was also mutually corroborative. It was not denied by Respondent. 880 SUPER TIRE STORES this conversation that the other tire stores were also laying off employees because of the decline in sales. Fishman also said that he did not know how long the layoff would last. He then gave Mcintosh until 5 p.m. that day to notify Fishman whether he wanted a layoff or a transfer. Neither Mcintosh nor Grant had been advised prior to December 16 that Respondent would reduce the number of employees at its Watt Avenue store. They also testified that they had not been told by Respondent's supervisors of any decline in business. On the afternoon of December 16, McIntosh accepted the transfer offered by Fishman. On December 20, Mc- Intosh started working at a Grand Auto Store, which is located at the intersection of El Camino and Fulton Streets in Sacramento, California. McIntosh did not suffer a re- duction in his wage rate nor in the hours worked by him, neither of which was affected by the transfer. By starting employment at the El Camino location, McIntosh became subject to the terms of the collective-bargaining agreement between the local of the Machinists union and Respon- dent. On February 10, 1977, he was terminated by John Paladini, manager of the Grand Auto Store, because Mc- Intosh had not complied with the union-security provisions of the applicable collective-bargaining agreement. McIn- tosh did not become a member of the Machinists prior to his termination and did not pay dues or initiation fee to that union as required by the contract. The Regional Office conducted an election among the unit employees at Respondent's facility on December 27, 1976. Mclntosh's ballot was challenged by the Employer on the ground that he was no longer employed in the unit. Since only two employees cast ballots, one of which was challenged, the ballots were impounded. After the balloting, Ray Vetterlein, Respondent's labor relations consultant, spoke to Grant at Respondent's facil- ity. He asked Vetterlein, "Well, what happened?" Vetter- lein replied that the votes were impounded. At that point, Grant asked what Vetterlein meant by his statement. He replied that it would be tied up and that he could tie it up for a long time. I credit Grant's testimony. After the election and subsequent to the transfer of Mc- Intosh, Murphy assumed responsibility for making most of the delivery of tires to wholesale customers.4 F. Events Which Transpired After the Election After the transfer of McIntosh, Murphy assumed re- sponsibility for making most of the deliveries of tires to wholesale customers. He made approximately 80 percent of the deliveries during that period and, as a result, was out of the store for an average of 4 to 5 hours a day. During the period from September 24, 1976, to December 20, when 4The account of the events occurring at Respondent's facility after the transfer of Mcintosh is based on the testimony of Grant. This testimony was completely uncontradicted by Respondent. Attention is especially called to the fact that Grant's testimony was entitled to great weight because he was testifying adversely to the employer for whom he worked. For this reason it is highly unlikely that he would testify falsely about his present employer. The General Counsel cites two cases in support of this proposi- tion: Missouri-Arkansas Coach Lines. Inc, 7 NLRB 186. 203 (1938); Georgia Rug Mill. 131 NLRB 1304, 1305. fn. 2 (1961). McIntosh was transferred to the other store, Murphy made about 20 percent of the deliveries. As a result of Murphy's frequent absences from the store to make deliveries, he was not available to perform his normal managerial funcions. According to Murphy, his su- perior, Fishman. commented upon Murphy's frequent ab- sences from the store and requested that he arrange his time in such a way so that he could be present at the store for longer periods of time in order to handle management problems. In addition, the staff of Respondent's store found itself delayed in completing paperwork after the transfer of Mc- Intosh. This failure to process the paperwork in a timely manner brought criticisms from Respondent's main office. While Murphy was out of the store making deliveries, Grant was frequently alone in the Watt Avenue facility. As a consequence, when Grant was left alone in the store, he was unable to make immediate deliveries in response to requests from wholesale customers. It was also necessary for him to lock the store when he accompanied customers to the Grand Auto Store, next door, in order to have their tires mounted. Such trips were necessary on an average of from 6 to 7 times a day. While Grant was at the Grand Auto Store, customers visiting the Watt Avenue facility would find the store locked and they would be unable to enter to make a purchase. Also, occasionally when Grant was alone in the store, he was unable to wait on all the customers that were present. Frequently these customers would leave the store without making a purchase. In order to compensate for the lack of manpower to make necessary deliveries, Respondent assigned employees from the Grand Auto Store which, as has been mentioned previously, was located immediately adjacent to the Watt Avenue facility. Grant was instructed by Murphy to use Grand Auto employees when necessary to make deliveries. As a result of these instructions, Grand Auto employees were used to make deliveries for the Super Tire Store. It should be noted that during the time that McIntosh was employed. Grand Auto employees were not assigned to do such work. Despite the assistance received by Super Tire from the employees of the Grand Auto store, who occasionally made deliveries of tires, Respondent lost a substantial amount of tire sales because there was no available em- ployee to make deliveries to wholesale customers. The rec- ord shows that on an average of four to five times a week after Mcintosh's transfer, Respondent was unable to make deliveries of tires pursuant to the requests of customers. In many cases the inability to make immediate delivery resulted in lost sales. One of Respondent's customers. Bill's Texaco. was unable to obtain immediate delivery on four radial tires costing approximately $200 and thereafter Bill's virtuallx ceased doing business with Respondent. Early in January 1977, Murphy held a conversation with Grant concerning tire deliveries to wholesale accounts. Murphy told Grant that he had been unable to deliver about $600 worth of tires. Murphy said that he had dis- cussed this problem with Al Kaye. Respondent's general manager. According to Murphy, Kaye asked him whether he had a nephew or somebody else to deliver the tires. Because of the problems caused by Mclntosh's transfer, 881 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Murphy told Fishman, sometime during January 1977, that another employee was needed in the store. Fishman replied that he would discuss the situation with Respondent's per- sonnel department and see what could be done about it. According to the testimony of Murphy, he advised his su- periors on a number of occasions by telephone of the need for an additional employee. The General Counsel in his brief calls attention to the fact that during the latter part of February or early March 1977, a young man named Brian filed an application for employment at Murphy's request. The applicant returned to the store on 3 successive days. On his first visit, Murphy told the applicant that he would have to contact his super- visor. The second time around, Murphy told the applicant that he had been unable to reach his supervisor. On the third visit, the applicant was told by Murphy that he would discuss it with his supervisor later that week. Sometime within the following week, the applicant returned to the store once again. Grant credibly testified that, "I heard Murphy tell the applicant that he could not put anyone on due to the union activities that had taken place there." Later in his testimony Grant was describing the fact that the same applicant, his first name being Brian, called on the phone. Q. And what did he say and what did you say? A. He asked-well, first he asked if Murphy was there. And I said, "no, he is out on delivery." He says, "Well, has he got the union situation dissolved yet?" And I says 'No. Why?" He says, "Well, I'm still look- ing for work. And I cannot go to work until it is dis- solved." Concluding Findings and Analysis The uncontradicted testimony of McIntosh and Grant, both of whom I credit, establishes that Murphy interrogated employees concerning their reasons for supporting the Union. Such an inquiry, directed as it was to a disclosure of whether an employee favors the Union and the strength of his support, is a violation of Section 8(a)(1) and I so find. The General Counsel cites in support of this proposi- tion Florida Steel Corporation, 215 NLRB 97 (1974); Dresser Industries, Inc., 231 NLRB 591 (1977). It is the General Counsel's contention that when Respondent's manager of the Super Tire stores told Grant and McIntosh that his top supervisory management was unhappy with him because of his inability to control the employees, that this constitutes a separate violation of Sec- tion 8(a)(1). The record supports the conclusion that Murphy, when he was told critically that he had been unable to control his employees, was in effect referring to the Union. The con- text of the statement makes clear that it was directed at the union activities of the employee. The statement was made shortly after Murphy learned about the union organiza- tional activities. There had been no prior references by Murphy to any problems of control over his employees. Since there was no indication of any problems with the enforcement of Respondent's work rules, the reference to control over the employees, by extension, was necessarily directed at the Union. By making such a statement, Murphy was advising the employees that Respondent's management wanted their supervisor to prevent these employees from engaging in lawful union activities such as signing authorization cards. The effect of such a declaration is such that it deterred employees from engaging in activities protected by Section 7 of the Act. I find that this subject matter in and of itself represents an additional independent violation of Section 8(a)(1). 5 When McIntosh was transferred out of the Watt Avenue store, Respondent was aware that he and Grant were supporters of the Union. Both McIntosh and Grant had advised Murphy, their supervisor, that they wanted a union in order to obtain the same benefits which were being enjoyed by employees at Respondent's adjacent fa- cility under a union contract. Thus the only two employees in the unit were committed union supporters and were like- ly to vote for the Union in the upcoming Board election. The General Counsel takes the position that the motiva- tion for Respondent's transfer of McIntosh was clearly at- tributable to Respondent's animosity toward the Union. This animosity was overtly expressed by Murphy's super- visor, who severely criticized him for allowing the union organizational drive to gain a foothold in the store. After the transfer of McIntosh, Respondent refused to hire a re- placement, although the store manager recognized that an- other employee was necessary. Rather than hiring a new employee, Respondent suffered substantial detriment in the operation of its business. According to the uncontra- dicted evidence in the record, Murphy admitted that the failure to hire another employee was due to the Union. Thus, Respondent's policy of trying to keep the Union out by maintaining a one-man unit appears to be more impor- tant to Respondent than the efficient operation of its store. The General Counsel further argues that Respondent's de- termination to keep the Union out at the cost of even ad- versely affecting its business shows the intensity of Respondent's hostility toward representation by a local of the Teamsters union toward the employees at the Watt Av- enue Store. In furtherance of its plan, which is demonstrably evi- denced by the above argument, in order to achieve its goal of keeping the Union out of its Watt Avenue store, Re- spondent transferred McIntosh to another facility. Since it is axiomatic that the Board will not certify a collective- bargaining representative in a unit consisting of only one employee, the transfer, if it was not challenged before the Board, would effectively defeat the Union's organizational drive. Even if the transfer was successfully attacked in an unfair labor practice case, the matter would be involved in litigation for a considerable period of time and the advent of the Union would be delayed. In fact, there is some evi- dence in the record that Respondent's labor relations con- sultant made a specific statement after the election that he While it is true that Murphy was not himself the originator of the unlaw- ful statement, his averment concerning the statement was an admission by a supervisor. imputable to Respondent, that the statement had actually been made by Murphy's superior. The coercive effect of the supervisor's state- ment is not diminished because it was not made directly to the employees where another supervisor repeats the identical statement to the employees. 882 SUPER TIRE STORES was in a position to tie the matter up for a considerable time. While this statement, standing alone, does not have a particular probative effect, it is so much a part of what occurred in the unfolding of the events that took place that it is a reasonable and logical assumption that the whole course of Respondent's activity iii transferring Mcintosh was designed to prevent the NLRB from holding an elec- tion by creating a situation where there was only one em- ployee left in the bargaining unit. Further, it is significant that the transfer was announced on December 16, 1976, shortly before the Board election was scheduled to take place. The timing of the transfer points rather convincingly to the fact that Respondent did not want McIntosh to vote in the election. This conclusion is buttressed by the fact that the transfer of McIntosh oc- curred suddenly, without any prior warning or indication that Respondent considered that a business slowdown ne- cessitated a reduction in the number of employees. This would seem again to underscore the fact that the transfer was due to antiunion considerations. It is significant to point out that Respondent did not put on any case at all. It did not produce any witnesses, nor did it adduce any evidence in the form of documentary infor- mation to support Respondent's contention that the reason for the transfer was due to a diminution of the Company's business in the Watt Avenue store. It is rare indeed for a Respondent not to make any defense or attempt to put on any witnesses or documentary evidence after the General Counsel had completed his case in chief. In support of a conclusion that this finding is warranted by Respondent's failure to rebut the General Counsel's prima facie case, the General Counsel adverts to the case of Borg-Warner Con- trols, Borg-Warner Corporation, 128 NLRB 1035, 1044-45 (1960). It should be further pointed out that not only did Re- spondent fail to adduce any testimony and no documen- tary evidence to prove that economic considerations moti- vated the transfer of Mcintosh, there is simply no evidence in the record to show that there was a business justification for the transfer. On the other hand, the uncontradicted and unrebutted testimony of Grant showed that Respondent suffered severe detriment to its business by the transfer of Mcintosh and its refusal to hire a replacement for him. Tire sales were lost because Respondent did not have suffi- cient manpower to take immediate deliveries of tires to wholesale customers. Furthermore, when Grant was alone in the store (a condition which occurred with much greater frequency after McIntosh's transfer than it had before), he chose to close the store whenever it was necessary for a customer to have his newly purchased tires mounted at the adjacent Grand Auto facility. The necessity to close the store several times a day resulted in a further loss of sales. The efficiency of Respondent's operation was further di- minished because an employee who was alone in the store was frequently unable to wait on all the customers who were present desiring service. In addition, Respondent was not able to complete its paperwork in a timely manner, which resulted in complaints from the main office. Even more important, the manager was required to lose a con- siderable portion of each working day in order to person- ally make deliveries. Under these circumstances he was un- able to attend to management problems requiring his at- tention. Under all these circumstances, it appears that no business management would have accepted this undesir- able situation unless it was motivated by strong desire to defeat the Union by making the store a one-man unit. If further proof were needed, it should also be noted that Murphy authorized Grant to use employees from the adja- cent Grand Auto store to make deliveries when necessary. This had never taken place when McIntosh was employed at the Watt store. Murphy recommended to Fishman, his superior, that an additional employee be hired, a recom- mendation which, according to Murphy's own admission. was rejected because of the union situation. Thus, it is fair to conclude that Murphy felt that two employees were nec- essary to operate the store efficiently. The General Counsel concluded from all of the above that the reason for the transfer of McIntosh was not attributable to business fac- tors but was motivated by Respondent's opposition and hostility to the Union. I so find. CONCLUSIONS OF LAW I. By interrogating employees McIntosh and Grant as to why they were involving themselves with the Union, which interrogation came directly from Store Manager Murphy, Respondent violated Section 8(a)(1) of the Act. 2. By transferring McIntosh and as disclosed by the evi- dence which was totally unrebutted by Respondent, it is clear that the transfer was motivated by Respondent's de- sire to reduce the number of its employees in the appropri- ale bargaining unit to one and therefore preclude the hold- ing of an election. I find this to be a violation of Section 8(a)(1) and (3) of the Act. 3. With respect to the objections to the election, I hereby overrule the objections and order that McIntosh be restored and reemployed by the Watt Store, thus making him eligible to cast a ballot in the Board election and I order that his ballot be opened and be counted. 4. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It will be recommended that Respondent: I. Cease and desist from its unfair labor practices and from infringing in any manner upon the rights guaranteed by Section 7 of the Act. 2. Reinstate employee McIntosh to his employment at the Watt store and pay him backpay for the period from the date of his discharge from the Grand Auto store and his backpay shall be computed with interest in the manner prescribed in F. t1. Woolworth Company, 90 NLRB 289 (1950). and Florida Steel Corporation, 231 NLRB 651 (1977).6 3. Post the notices provided for herein. [Recommended Order omitted from publication.] 'See. generall\, lis Plunlhing & tleamlg (Co, 138 NLRB 716 (11)62 883