Larry Barnes Chevrolet Co.

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Larry Barnes Chevrolet Company and Local Lodge No. 1491, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 19-CA-3985 February 26, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On November 14, 1968, Trial Examiner Herman Marx issued his Decision in the above-entitled proceeding, as corrected by an erratum issued on November 22, 1968, finding that the Respondent had engaged 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. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision. 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 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 had considered the Trial Examiner's Decision, the exceptions, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Larry Barnes Chevrolet Company, Boise, Idaho, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'We disagree with the Trial Examiner 's finding that General Manager Smith did not testify about the February 27 meeting or the resulting recommendation that the Company subcontract its appearance reconditioning work. The record inferentially reveals that Smith's testimony on this matter is consistent with Reconditioning Manager Thompson's testimony Although the Trial Examiner apparently gave some weight to a supposed inconsistency between Smith and Thompson's testimony, we believe that, even though no such discrepancy exists, the record supports the Trial Examiner's conclusion that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Martin. (herein the Respondent or Company), has violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein the Act),' by subcontracting certain work, and thereby terminating the employment of one Jack A. Martin, because of his activities in support of a labor organization, Local Lodge No. 1491, International Association of Machinists and Aerospace Workers, AFL-CIO (herein the Union).2 The Respondent has filed an answer denying the commission of the unfair labor practices imputed to it in the complaint. A hearing on the issues was held before me, as duly designated Trial Examiner, in Boise, Idaho, on July 9, 1968. The General Counsel, the Union, and the Respondent appeared and were afforded a full opportunity to adduce evidence, examine and cross-examine witnesses, and submit oral argument and briefs. Upon the entire record, from my observation of the demeanor of the witnesses, and having read and considered the briefs filed with me since the close of the hearing, I make the following findings of fact: FINDINGS OF FACT L NATURE OF THE RESPONDENT'S BUSINESS; JURISDICTION OF THE BOARD The Company is an Idaho corporation; maintains a place of business in Boise, Idaho, where it is engaged in the business of selling new and used cars at retail; and is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. In the course and conduct of its business, the Company annually derives revenue in excess of $500,000 from its retail sales, and annually purchases products valued in excess of $50,000 directly from suppliers located outside of Idaho; and such products are shipped from such locations to points within the said state. By reason of such purchases and shipments, the Company is, and has been at all times material to the issues, engaged in interstate commerce, and in operations affecting such commerce, within the meaning of Section 2(6) and (7) of the Act. Accordingly, the National Labor Relations Board has jurisdiction over the subject matter of this proceeding. IL THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material to the issues, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement Jack A. Martin has been in the Company's employ several times, first entering it in January 1967. In his last TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN MARX, Trial Examiner: The complaint alleges that an employer, Larry Barnes Chevrolet Company 129 U.S C. 151, et seq The complaint was issued on June 13 , 1968, and is based upon a charge filed by the Union with the National Labor Relations Board on April 8, 1968. Copies of the charge and complaint , and a notice of hearing, have been duly served upon the Respondent and all other parties entitled thereto 174 NLRB No. 121 LARRY BARNES CHEVROLET CO. 819 employment, which began on October 1, 1967, he worked in successive periods as a "lot man" (performing such tasks as washing and starting cars on the used car lot, and maintaining its condition); as a used car mechanic; and as an "appearance reconditioner" in the Company's reconditioning department, which has the responsibility of performing such work on used car engines, bodies and interiors as may be required to put the cars in condition for sale. Appearance reconditioning consists, basically, of improving the appearance of used car interiors to make them presentable to customers. Martin was assigned to that work from the job of mechanic in December 1967, receiving an increase in his monthly salary from $375 to $425. He worked in appearance reconditioning until March 15, 1968, when his employment was terminated under circumstances to be described later. In January 1968,' the Union began a campaign to organize employees of automobile dealers in the Boise area, including the Company, and to that end held four meetings, the first in the latter part of February and the last on March 11, 1968. The first three meetings were attended by about a dozen people, but the last was a "mass meeting," open to management personnel, as well as employees, and attended by 86 persons. Martin was active in the organizational campaign at the Company's establishment, soliciting support for the Union from most of the employees there.' He attended each of the meetings, and at the "mass meeting" of March 11 distributed union literature and "cards (for) people to sign;" recorded the names and addresses of those who attended as they arrived; and addressed the meeting for about 15 minutes, advocating union organization, outlining benefits of unionization, and expressing the view that by means of a strike "we could close every shop in town to gain what we wanted." Among those in the audience were Martin's immediate supervisor, Gary Boggis, then "manager" of the reconditioning department, and Frank Barnes, the son of Larry Barnes, executive head of the Company. B. The Discharge On March 13, two days after Martin's speech at the "mass meeting," Boggis told him that the Company was discontinuing appearance reconditioning in its shop, and that he would therefore be terminated as of March 15. Boggis, who was accompanied on this occasion by a man named Rummel who operates an enterprise known as Superior Auto Service, which performs appearance reconditioning work as a subcontractor, told Martin that he could fill a vacancy as appearance reconditioner at Superior at the same salary he had been receiving. Martin looked into the proposal on the following day, speaking to Rummel who offered him the opening, but at a smaller salary than the Company had paid him. Superior's offer was "$400 a month and no fringe benefits" such as pension and insurance programs. Martin declined the job offer.5 'Unless otherwise specified , all dates mentioned below occurred in 1968 'Martin distributed some 20 "cards" to employees for execution Presumably, these were forms authorizing union representation for the card signatories. 'At one point in his testimony, Martin evidenced some uncertainty whether he was offered $425 or $400. However, a memorandum of agreement (Resp Exh. 8) between the Company and Superior for appearance reconditioning work by Superior notes that the latter offered On March 15, his last day of work for the Company, Martin asked its general manager, Jason Smith, who has overall responsibility, under Larry Barnes, for its operations, whether there was a job opening for him, and suggested that he be employed in "new car servicing", or as a mechanic. Smith replied that the Company was retrenching, and had no place for Martin. Since Martin's termination, the Company has "farmed out" its appearance reconditioning work to Superior and other contractors. About a month after his discharge, and following the service of the charge in this case upon the Company, Martin wrote Larry Barnes a letter, noting that he had been complimented for his work, and stating that he wished to return and that the letter "would be a continuing application for employment." Several days later, he received a letter, apparently in reply, from the Respondent's service and personnel manager, Stanley Ross, requesting that Martin "come down and fill out an application." Martin called at the Company's premises a few days later, procured an application form, completed it, and filed it with Ross' office. The Company has neither reemployed Martin nor offered him reemployment. C. Discussion of the Issues; Concluding Findings It is clear that the management was aware that Martin was a union activist at the time it decided to terminate him. For one thing, Boggis, Martin's supervisor, was at the March 11 "mass meeting", which Martin addressed on the subject of union aims and benefits, alluding to the power of union organization to "close every shop in town to gain what we wanted", and for another matter, Smith, although claiming that he was not told "what" Martin had said, admittedly was informed in "the next day or two" by "some of our people" that Martin had addressed it. Smith does not identify his informants beyond saying that they were "several of our mechanics," but, passing that, it burdens credulity that Martin would address the "mass meeting" and make the speech he did in the presence of Boggis and the younger Barnes, and of the "several" mechanics to whom Smith alludes, and that not one of these would tell Smith anything of what Martin had said there. I do not credit Smith in that regard, and, on the contrary, am convinced and find that at the time of the decision to terminate Martin, Smith was aware, at the least, that Martin in his speech had advocated the unionization of employees of Boise automobile dealers.' The General Counsel, pointing to Martin's union activities, particularly his speech at the March 11 "mass meeting," and stressing the fact that Martin was notified of his termination only two days after the speech, contends that the decision to subcontract its appearance reconditioning work, and thereby terminate Martin's employment, was motivated by a purpose to rid the Company of a union activist, and was therefore unlawful. The Respondent, on the other hand, disclaiming such an aim, maintains that the management had had a proposal to "farm out" such work under advisement before the organizational campaign began, and actually decided on that course before the March 11 meeting. As support for its position, the Respondent produced a Martin a job at a monthly "starting salary" of $400. I am satisfied that the salary offer was $400 per month. 'The Respondent, it may be noted, did not call Boggis as a witness, nor explain its failure to do so. Particularly in view of these omissions, the record fairly warrants a conclusion that Boggis heard Martin's speech. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD memorandum dated December 19, 1967, from Jason Smith to Larry Barnes, outlining a number of recommendations for 1968, and stating in the course thereof that in the interest of conserving space, and of economy and efficiency, " I will again propose that we seriously consider to again sublet our appearance reconditioning work as we did until February 1967" (emphasis supplied). According to Smith, he had made the recommendation "many times" since February 1967 when the Company had once before abandoned subcontracting, and had undertaken to do the work in its shop (incidentally, hiring Martin for the work in one of his earlier employments by the Company). I find no reason to doubt the authenticity of the memorandum, and in the light of its terms am persuaded that Smith had previously made repeated recommendations to the same effect,' but the fact that Smith's recommendations were made well before the union organizational campaign began falls far short of explaining the timing of the subcontracting arrangement, and Martin's related discharge. Smith testified that the actual decision to subcontract the work was made "around March 1," thus intimating that the decision antedated the March 11 "mass meeting," although leaving one to guess the range of his approximation in relation to March 11, but passing this aspect of his testimony for the moment, it is noteworthy that Smith, who is in charge of the Company's operations under Larry Barnes, professed an inability to explain why his repeated recommendations for the change had not been accepted over a period of about a year preceding the actual decision to make the change, offering the limp explanation that Barnes "didn't exactly say why; he doesn't always tell me why " This does nothing to the hard fact that the change went into effect soon after Martin' s "mass meeting" speech, and in the face of that fact, and of the undisputed evidence that Martin was given no inkling of the projected change until after the speech, Smith's generalization that Barnes (who, it may be noted, did not testify) made the subcontracting decision "around March 1" is not, in my judgment, a reliable predicate for a finding that the decision antedated the "mass meeting" speech. On the contrary, the intended intimation that the decision was made before the speech appears to me to be an improvisation aimed at dilution of the important fact that Martin's termination came soon after the speech, and that view of the matter is fortified by an examination of documentary evidence, and related testimony given by a management witness, Eugene Thompson, who entered the Company's employ on February 22, 1968, and according to his account, was, at the time of the subcontracting decision a few days later, in "the process of taking over" the reconditioning department from Boggis, who was "breaking [him] in" for his duties there. 'The record, raises some question concerning a memorandum from Boggis to Smith, dated December 6, 1967, alluding to Martin's appearance reconditioning function, and the insufficiency of help for that work, and recommending that it be discontinued in the shop and "farmed out" to speed up the process. Martin testified without contradiction (except as the memorandum suggests the contrary ) that he was assigned to appearance reconditioning in his last employment by the Company about December 22, 1967, or, in other words, about two weeks after the date of the memorandum. Boggis did not testify, but, in any case , I see no need to resolve the conflict in view of the conclusion regarding Smith's memorandum of December 19, 1967, and that he had on previous occasions recommended to Barnes that the appearance reconditioning work be subcontracted. Thompson gave testimony to the effect that two "efficiency experts" had recommended that the appearance reconditioning work be subcontracted, that he submitted the recommendation to Smith and Larry Barnes; and that "on or about" February 27, 1968 (apparently meaning on that date or "prior" thereto, according to the context of Thompson's testimony at the relevant point), he, Smith, Barnes, and Rummel, the operator of Superior, together discussed the subcontracting arrangement and negotiated "a joint agreement" regarding the matter. Thompson identified a memorandum dated February 27, 1968, from himself to Barnes, which states that the "efficiency experts, Bill Smythe and Dick Bower, advise closing the Appearance Re-conditioning Department," and subcontracting its work; that that "means laying off our reconditioning man, Jack Martin," that "we have taken this into consideration and have arranged with Superior Auto Service to do our appearance re-conditioning on a charge-by-car-basis"; and that Superior "will need an extra man and [is] willing to hire Jack Martin at the same pay schedule that he is receiving now at this organization." Thompson's picture of the submission of the recommendation of the "experts" to both Smith and Barnes, and of the "joint agreement" reached at a meeting of himself, Smith, Barnes and Rummel, is out of kilter with Smith's testimony. Smith not only omits any mention of the alleged recommendation and meeting, but depicts Barnes as long resistant to his own repeated recommendations for the change, and professes ignorance of the reason that led Barnes to make it. It is difficult to believe that Smith, the general manager of the enterprise, would be unaware of the reason, but that his subordinate, Thompson, who entered the Company's employ only a few days before February 27, and was then in training to assume supervision of the reconditioning department, would be privy to the reason, as Thompson in effect claims with his testimony regarding the recommendation of the "experts" and its alleged submission to Barnes. And it is an illuminating fact that the only actual tangible evidence of an agreement between the Company and Superior, apart from Thompson's word about the matter, is a memorandum of agreement, dated March 14, 1968, drawn by Thompson, executed by Rummel, and "agreed to" by Thompson for the Company, specifying the prices to be charged the Company (and stating that Superior had offered Martin a job at $400 per month - $25 less than he had been receiving from the Company, although the February 27 document states that Superior was "willing to hire Jack Martin at the same pay" he had been receiving). To be sure, Thompson claims that the price arrangements, except for some later "minor" changes, were made in the agreement reached on or before ("as of') February 27, but there is no other evidence, hard or otherwise, to support this claim., The February 27 document says nothing about prices, although one would think that these would be the core feature of the subcontracting arrangement it purports to describe. It is noteworthy, too, that after Thompson's attention was directed to the March 14 agreement and Smith's testimony that the subcontracting decision was made about the beginning of March, Thompson hedged on his prior testimony that the agreement was made "as or, February 27, and on the meaning of the February 27 document, which similarly would lead one to believe that "The March 14 agreement contains several price changes in ink. Obviously, these were made on or after March 14. LARRY BARNES CHEVROLET CO. the arrangement had been made by that date, testifying, somewhat argumentatively, that the decision was made in the "latter part of February or the first part of March; there is only a variance of one or two days there"; and conceding that when he wrote the memorandum no subcontracting agreement with Superior had yet been made, and that the purpose of the document was to convey the "suggestion" of the "experts" to Barnes. The February 27 memorandum is a self-serving document prepared and identified by an agent of the Respondent, and in the nature of things, the other parties to this proceeding, not being privy to the circumstances of its origin, are not in a position to offer a direct challenge to its authenticity. That, however, imposes no obligation upon the fact-finder to accept it out of hand. Its truth, in the last analysis, depends upon the truth of its author, Thompson, and for the reasons spelled out above, I find so large an aura of unreliability over his testimony that I am unable to accept either it or the February 27 memorandum as a guide to the truth of the timing of the subcontracting decision. In short, the Respondent's claim, offered through Smith and Thompson, that the subcontracting decision antedated Martin's "mass meeting" speech bears earmarks of contrivance, and I do not credit it.' On the contrary, much in the record persuasively points to a direct connection between Martin' s union activities and his termination. It is a fact that his supervisor, Boggis, was present at the March 11 "mass meeting"; and that word of Martin's speech soon thereafter reached Smith. It is a fact that Boggis informed Martin of his discharge on March 13, only two days after the speech; that Martin had had no prior intimation of any intention to subcontract the work he had been doing; and that, so far as appears, none had been given to any other nonsupervisory employee. It is a fact, too, that Larry Barnes who, more than any other, could bear witness to the timing and reason for his change of mind after repeatedly rejecting Smith's recommendations to subcontract the appearance reconditioning work, did not testify; and that Smith, with overall responsibility, under Barnes, for the operation of the Respondent's enterprise, professes ignorance of Barnes' reason . And it is a fact, also, that the document embodying the agreement between the Company and Superior is dated March 14, several days after the "mass meeting" speech. These facts, particularly in the light of the contrasting unreliability of the testimony of Smith and Thompson regarding the timing of the subcontracting decision, amply warrant a 'The two "experts," both of them "new car dealers," were not produced, but the Respondent called one William F Finley who gave testimony to the effect that he is in the business of analysing retail automobile enterprises with a view to improving their profit margin, that he had repeatedly studied the Company's operations over a period of years, and that "at the end of February or very early in March " 1968 he had told Barnes that the Company's "inventory turnover was poor (and its) gross was low," and had recommended that it subcontract appearance reconditioning. Finley indicated that he makes such a suggestion routinely "to all clients" with a large business volume, and this would suggest that he had made it to the Company before In any case, the alleged suggestion was but one of many such made over a period of a year prior to the change, as Smith's testimony attests; and the important question is whether the decision to make the change, and not any of the many recommendations that it be made, antedated Martin's "mass meeting" speech On that score, Finley's testimony adds little or nothing of substance to that of Smith . Moreover, I note that Finley seemed uncertain when it was that he made the recommendation to Barnes, stating that he could not say when "without my work diary," but that his recollection was that "it was the end of February or very early in March." 821 conclusion that the decision was a direct result of Martin's open manifestation of union activism, in Boggis' presence, at the March 11 meeting; and that the purpose of the subcontracting arrangement was to dispense with Martin's services, and thus rid the Company of a union activist That view of the matter is not negated by the evidence of the job offer to Martin by Rummel at the Company's insistence. Martin's termination, even if he. had entered Superior's employ, would still have had the effect of ridding the Company of a union activist, but, in addition, the offer and the paper entries related to it have such earmarks of ritual as to raise a doubt of the sincerity of the offer, and much suspicion as to the purpose of the entries. Rummel did not testify, and the Respondent does not explain why Rummel's offer to employ Martin at the same monthly salary, $425, as he had been receiving, as transmitted to him by Boggis, in Rummel's presence, on March 13, and noted in the memorandum Thompson claims he prepared on February 27, was reduced to $400 when Martin actually applied for the job on March 14. In the absence of any explanation, the reduction of itself raises a question, to say the least, whether the offer was made in good faith. Moreover, the Respondent does not tell us why Thompson, drawing the March 14 agreement for Rummel's signature, should append to the terms of agreement a wholly unrelated paragraph to the effect that Superior had offered Martin a job at a monthly salary of $400, and that Martin had replied that he thought he had another job "lined up...but would contact us at a later date." In the perspective of the whole record, there is, in my view, at least as much reason to conclude that the offer and the relevant entries in the two memoranda were designed to project a self-serving image of solicitude for Martin's welfare in order to paper over a discriminatory attitude toward him as there is to believe that they were made in good faith. In short, the offer and the entries are not persuasive support for the Respondent's claim of a lawful motivation. In summary, I find, for the reasons stated, that the Company's motivation for discontinuing used car appearance reconditioning in its shop, and the related arrangement for subcontracting such work, was to terminate Martin's employment, or, in other words, to discharge him, because he advocated and sought to bring about union representation of the Company's employees; and that by discharging him for that reason, it violated Section 8(a)(3) of the Act, and interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thus violating Section 8(a)(1) of the statute.10 "In view of the conclusion reached as to the motivation for the discharge, and in the absence of an allegation that the Respondent's failure to reemploy Martin thereafter separately violated the Act, I see no need to determine whether the Company's omission to reemploy him as "lubrication man" or as a mechanic to fill vacancies that arose after his discharge was discriminatory, although I note that Ross' testimony would lead one to believe that Martin was not considered for any opening after his discharge because he did not present himself to Ross in person for an interview; and that this explanation appears to me to be niggling and at least suspect in view of the fact that Ross was aware of Martin's written application for reemployment, had worked "with" Martin for the Company for a year, and was undoubtedly familiar with Martin's capacities, and that Martin had, in fact, applied to Smith in person for the "lubrication" vacancy (which was filled by transfer of another employee, Dale French, who had been in the Company's employ for a much shorter time than Martin's aggregate periods of service). I also note that I base no findings on testimony by a farmer employee, Lee Sherman, who quotes Ross as making remarks to employees on more than one occasion after the March l l meeting to the effect tfiat as a result of the union organizational 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 operations of the Respondent 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 burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Company has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend below that the Company cease and desist from the unfair labor practices found, and take certain affirmative actions designed to effectuate the policies of the Act. In view of the nature of the unfair labor practices committed, I shall recommend an order below which will in effect require the Company to refrain in the future from abridging any of the rights guaranteed employees by said Section 7." Having found that the Company's purpose in discontinuing used car appearance reconditioning in its shop, and in substituting a subcontracting arrangement for the performance of such work, was to effect the termination of Jack A. Martin's employment because he had engaged in union activities, and that his resulting discharge violated Section 8(a)(1) and (3) of the Act, I shall recommend that the Company offer Jack A. Martin immediate and full reinstatement to his former, or a substantially equivalent, position,' E without prejudice to his seniority and other rights and privileges; that to the extent necessary to effectuate such reinstatement, it resume its performance of used car appearance reconditioning work and discontinue any arrangement for the performance of such work by any other enterprise;" that the Company make Jack A. Martin whole for any loss of pay he may have suffered by reason of his said discharge by payment to him of a sum of money equal to the amount of wages he would have earned, but for his discharge, for the period between the date his employment by the Company ended, as found above, and the date on which he is offered reinstatement, as aforesaid, together with interest on said amount at the rate of 6 percent per annum; and that the loss of pay and interest thereon be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 130 NLRB 716, to which the parties to this proceeding are expressly referred. campaign "a lot of heads (would) roll", and that "a lot of guys (would be) looking for lobs " On one such occasion , according to Lee, Ross referred to Martin's termination. Ross, in substance, denied having any discussions of unionization with employees beyond telling several individuals, in response to questions by them, that he was unfamiliar with "the union," and that they "would have to make up their own minds" concerning it While I have some reservation about Ross' credibility in general, Lee's testimony, in my view, lacks sufficient quality to carry the General Counsel' s burden of proof on the relevant credibility issue . Lee was vague in demeanor and manifested some difficulty in recalling what was said, conceding that "as far as this heads will roll thing . 1 would say they were my words," and not those of Ross In short, it is difficult to tell, on the basis of Lee's testimony, how much of what he purportedly quotes is his interpretation, and how much properly attributable to Ross. "N.L.R.B. v Entwistle ManufacturingCo., 120 F 2d 532 (C.A. 4). "In accordance with the Board's past interpretation , the expression "former, or a substantially equivalent, position" is intended to mean CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following conclusions of law; 1. Larry Barnes Chevrolet Company is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. Local Lodge No. 1491, International Association of Machinists and Aerospace Workers, AFL-CIO, is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discontinuing used car appearance reconditioning work and discharging Jack A. Martin, as found above, the Company has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering - with, restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Company has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that Larry Barnes Chevrolet Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of any of its employees in Local Lodge No. 1491, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by discharging, or otherwise denying employment to, any employee, or in any other manner discriminating against any employee with respect to hire, tenure of employment, or any term or condition of employment. (b) Or in any other manner interfering with, restraining, or coercing employees in the exercise of any rights guaranteed them by Section 7 of the said Act. 2. Take the following affirmative actions which, I find, will effectuate the policies of the Act. (a) Offer Jack A. Martin immediate and full reinstatement to his former, or a substantially equivalent, position, without prejudice to his seniority and other rights and privileges, taking all necessary steps to effect such reinstatement, as provided in section V, above, entitled "The Remedy" and make him whole according to the formula and method specified in said section V "former position wherever possible , but if such position is no longer in existence, then to a substantially equivalent position." Chase National Bank of the City of New York, 65 NLRB 827 "In view of the Respondent's unlawful purpose in substituting a subcontracting arrangement for performance of the appearance reconditioning work by Martin , it matters not that the Respondent may find the substituted arrangement more efficient or economical . To "farm out" the work in order to rid the Company of a union activist is not significantly different from replacing him with another employee for the same end. The requirement that the Respondent resume the work to the extent necessary to effectuate Martin's reinstatement is amply warranted Fibreboard Paper Products Corporation v. N L.R.B., 379 U.S 203, 215-216; A-1 Excelsior Van & Storage Co., 165 NLRB No 45, and cases cited fn 9 LARRY BARNES CHEVROLET CO. 823 (b) Preserve until compliance with any order for reinstatement or back pay made by the National Labor Relations Board in this proceeding is effectuated, and make available to the said Board and its agents, upon request, for examination and copying, all payroll records, social security records, timecards, and personnel records, which may be relevant to a determination of the amount of back pay due, and to the reinstatement and related rights provided in any such order. (c) Notify Jack A. Martin, in the event he is now serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post in conspicuous places at the Company's place of business in Boise, Idaho, including all places where notices to employees are customarily posted, copies of the notice attached hereto. Copies of the said notice, to be furnished by the Regional Director for Region 19 of the National Labor Relations Board, shall, after being duly signed by an authorized representative of the Company, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in such conspicuous places. Reasonable steps shall be taken by the said Company to insure that said notices are not covered, altered, or defaced by any other material. " (e) Notify the said Regional Director, in writing, within 20 days from the date of receipt of a copy of this Decision, what steps the Respondent has taken to comply therewith.'s In the event that this Recommended Order is adopted by the National Labor Relations Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the additional event that the Board's order is enforced by a decree of the United States Court of Appeals, "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, paragraph 2(e) thereof shall be modified to read : "Notify the said Regional Director, in writing, within 10 days from the date of this order, what steps the Respondent has taken to comply therewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership of any of our employees in Local Lodge No. 1491, International Association of Machinists and Aerospace Workers, AFL-CIO, or in any other labor organization, by discharging, or otherwise denying employment to, any employee, or in any other manner discriminating against any employee in regard to his hire, tenure of employment, or any term or condition of employment. WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization; to form, join, or assist any labor organization; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities. WE WILL offer Jack A. Martin immediate and full reinstatement to his former, or a substantially equivalent, position, without prejudice to his seniority and other rights and privileges, and reimburse him for any loss of pay he may have suffered by reason of our discrimination against him, together with interest on such sum. WE WILL notify the said Jack A Martin, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. All our employees are free to join, and remain members of, any union of their choice. Dated By LARRY BARNES CHEVROLET COMPANY (Employer) (Representative ) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-4532.