Global Automotive Enterprises

GLOBAL AUTOMOTIVE ENTERPRISES Lawrence Cantor, Eddie Cantor, Fritz A. Nachant, Mark Ratner, David A. Block and David Krup- saw, Co-Partners, d/b/a Global Automotive Enter- prises and International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93. Case 20-CA-4403 June 27, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 12, 1968, Trial Examiner Maurice M. Miller issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the com- plaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting brief. The General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent , Lawrence Cantor, Eddie Cantor, Fritz A. Nachant, Mark Ratner, David A. Block and David Krupsaw, co-partners, d/b/a Global Automotive Enterprises, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's`Recommended Order. ' In finding that Respondent violated Sec . 8(a)(3) by discharging Richard Nail, we do not rely on evidence respecting Nail's successor, Lynn Sidam . There is no allegation that Sidam was discharged for union reasons We agree with the Trial Examiner that Respondent violated Sec. 8(a)(5) of the Act. We base our decision on the ground that Respondent withdrew recognition from the Union at a time when it was obligated to recognize it. 627 We find that Respondent destroyed the Union 's majority in a two-man unit by the discriminatory discharge of one employee and, when the Union con- tinued to assert its majority status, withdrew recognition for the reason that the Union then lacked a majority . In view of the basis of our decision, our conclusion would be the same whether or not the parties had reached an impasse in negotiations before the withdrawal of recognition. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Trial Examiner: Upon a charge and amended charge filed on February 15 and May 12, 1967, respectively, and duly served, the General Counsel of the National Labor Rela- tions Board caused a complaint and notice of hear- ing to be issued and served upon Lawrence Cantor, Eddie Cantor, Fritz A. Nachant, Mark Ratner, and David A. Block, Co-Partners, d/b/a Global Au- tomotive Enterprises, designated the Respondent within this decision. (Subsequently, pursuant to a stipulation, the name of David Krupsaw, Respon- dent's general manager, was added to those of Respondent's previously listed copartners. The case caption, herein, has been modified to show the full partnership roster.) The complaint was issued June 9, 1967; therein, Respondent was charged with un- fair labor practices affecting commerce within the meaning of Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, as amended. 61 Stat. 136, 73 Stat. 519. Respondent's answer, duly filed, conceded certain factual matters set forth within the complaint. Respondent, however, denied the commission of any unfair labor practice. Pursuant to notice, a hearing with respect to the issues was held at San Francisco, California, on September 12 and 13, 1967, before me. The General Counsel and Respondent were represented by counsel. Complainant Union was represented by a Grand Lodge representative. Each party was af- forded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. Since the hearing's close, briefs have been received from General Counsel and Respondent's counsel. These briefs have been duly considered. FINDINGS OF FACT Upon the entire testimonial record, documentary evidence received, and my observation of the wit- nesses, I make the following findings of fact: a. THE BUSINESS OF RESPONDENT Respondent partnership maintains its principal "headquarters" office in San Diego, California. From that central location, the partnership main- tains and manages automotive service centers in various States of the United States, including a center at Cupertino, near San Jose , California, with which this case is directly concerned. During the 172 NLRB No. 69 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 12-month period which preceded the complaint's issuance, Respondent, in the course and conduct of its business operations, sold goods and services valued in excess of $500,000. During the same period, Respondent purchased and received goods and merchandise valued in excess of $50,000 directly from suppliers outside the State of Califor- nia. Upon the complaint's jurisdictional declarations, which are conceded, I find that Respondent, throughout the period with which this case is con- cerned, was an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act. With due regard for those jurisdictional standards which the Board presently applied-see Siemons Mailing Service, 122 NLRB 81, and related cases-I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory ob- jectives. II. THE LABOR ORGANIZATIONS INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, District Lode No. 93, designated as Complainant Union within this decision , is a labor organization within the meaning of Section 2(5) of the Act, which represents certain of Respondent 's workers for collective-bargaining purposes. Teamsters Automotive Workers Union, Local No. 576, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of Amer- ica, designated Teamsters herein , likewise is and, at all times material herein , has been a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Issues The questions presented for determination herein derive primarily from Respondent's purported desire to bargain collectively with Teamsters, rather than with Complainant Union, regarding wages, hours, and conditions of work for certain workers connected with Respondent's newly opened Cuper- tino service center. General Counsel contends that-before and after they were confronted with Complainant Union's demand for recognition- members of Respondent's managerial hierarchy: 1. Threatened various Cupertino workers with loss of their jobs should they select or designate Complainant Union as their collective-bargaining representative. 2. Provided statutorily-proscribed assistance and support for Teamsters, throughout the period with which this case is concerned, by urging, encourag- ing, and soliciting their Cupertino center workers to join, and by threatening to terminate a Cupertino worker if he failed to join , the labor organization designated. 3. Discharged workers Eugene Schetter and Richard Nail , either: (a) Because of their member- ship in Complainant Union, their activity in that or- ganization's behalf, or their protected concerted ac- tivity for the purpose of collective bargaining or other mutual aid and protection, or (b) because of their failure or refusal to join Teamsters pursuant to request. 4. Refused to meet and bargain collectively with Complainant Union as the exclusive collective-bar- gaining representative of workers within a designated bargaining unit at Respondent's Cuper- tino service center, previously noted. Respondent has traversed these contentions, pro forma, denying that the course of conduct chargea- ble to management spokesmen has preponderantly been shown to merit statutory proscription. B. Facts 1. Background On February 1, 1966, Respondent opened the Cupertino service center with which this case is concerned . The center stands on property leased from Gemco, a discount department store , pursuant to contractual committments which require Respondent's facility to remain open for business throughout Gemco's regular store hours . (Gemco, so the record shows, remains closed on Mondays. The store regularly opens at noon, Tuesday through Friday, while closing at 9 o'clock in the evening. On Saturdays and Sundays, Gemco remains open from 10 a.m. to 6 p.m.) When the Cupertino facili- ty opened, so I find, the center's staff consisted of Respondent's manager, Tom Pack , together with a single "tirebuster" more properly designated a tire service man. The record further warrants a deter- mination-which I make-that Respondent's Cu- pertino location constituted its second center within the so-called South Bay area; the first, so the record shows, was already doing business on Gemco premises located in San Jose proper. On March 3, following negotiations which had been initiated when the Cupertino center opened, Respondent's management-functioning nominally through Mark Ratner, general partner-signed a collective-bargaining contract bearing a February 28 retroactive date with Teamsters Automotive Workers Union, Local No. 576, designated as Teamsters herein. This contract purported to cover: ... service station employees, installation de- partment employees (tire service men, battery men, lubricators, seat cover installers ), and car washers.... working at both Respondent's San Jose and Cuper- tino centers. Realistically-so far as Respondent's Cupertino center was concerned-the Teamsters merely represented the firm 's tire service man; no GLOBAL AUTOMOTIVE ENTERPRISES 629 men were, then, working within the further classifi- cations noted. During the next 4 months, Respondent's manage- ment decided to establish a so-called mechanical department within the Cupertino center. Workers within this department would, presumably, be required to perform automobile repair, main- tenance, and installation work, in connection with muffler, tail pipe, brake, and "front end" alignment (not engine) problems. Sometime during late May or early June 1966, Eugene Schetter was hired for both tire changing and mechanical work. On June 21, he reported to Center Manager Pack for work at Respondent's Cupertino facility. (Previously-for some 4 years- Schetter had been doing mechanical work-largely limited to muffler and tail pipe sales and installa- tion-for a Downey, California, automotive service center. During his first 10 months there, Schetter had worked for Ratner, who then held a proprietary interest in the Downey center. In May or June 1966, when Schetter finally decided to sever his connection with Ratner's Downey successor, he- together with a friend, Bill Gould, tire service man-visited San Diego to consult Ratner regard- ing further work. The latter, now one of Respon- dent's general partners, referred both Schetter and Gould to David Krupsaw, his fellow partner, who functions as Respondent 's general manager. Krup- saw hired both men. Schetter was told-then or sometime later-that he would be doing mechani- cal work at the firm's Cupertino center; Gould was hired as a tire service man.) When Schetter re- ported, however, Respondent's mechanical depart- ment had not yet become operational. On June 29, another mechanic, Don Schwartz, was hired. And, thereafter, on the first Tuesday in July (July 5), the Cupertino center's mechanical department opened for business. Thereafter, Respondent's mechanics devoted themselves primarily to such work; they did tire changing , but rarely, when there was no mechanical work to be done. 2. Management's view regarding Teamsters membership for Cupertino mechanics Sometime during the mechanical department's first month-relatively soon after Schetter's hire- Kenneth Henson, Respondent's operations manager, concededly told him-so I find-that he would have to procure reinstatement of his dor- mant Teamsters contract; the mechanic, who had previously been a Southern California Teamsters member, was then-to Henson 's knowledge-hold- ing a withdrawal card, given him by his former lo- cal. Following Henson's suggestion, Schetter-with his fellow worker and roommate, Gould, for com- pany-visited Teamsters San Jose headquarters. The mechanic, however, was told by some Team- sters representative, not designated for the present record, that the Union's "service station" contract with Respondent did not cover automotive mechanics; his request for reinstatement while doing mechanic's work was, therefore, rejected. He was-so he testified-told that he would have to "see" the Machinists. Credible testimony-proffered in General Coun- sel's behalf-clearly warrants a determination, which I make, that the position taken by Teamsters regarding their "service station" contract's failure to cover automotive mechanics was, during this period, conveyed to Respondent's management. Item: Operations Manager Henson conceded- while a witness-that "about a month or so after" his suggestion that Schetter seek Teamsters rein- statement, he had queried the mechanic as to whether he had been reinstated; Schetter, so Hen- son testified, had reported that when he visited Teamsters and described his work as mechanic's work, they had said they could not "accept" his reinstatement, since they had an agreement with Machinists that they would not enroll mechanics. Item: Jack Marcotti, Teamsters business represen- tative, testified credibly that-during the transi- tional period at Cupertino shortly before mechani- cal work started-he had visited Respondent's facility several times; there, Manager Pack had been asked whether Respondent had any "new" workers who fell within Teamsters contractual ju- risdiction. Respondent's manager-so Marcotti testified-had replied negatively, declaring that there was just one tire service man; three other workers then present had been designated as the firm's brake, front end, and muffler men. Marcotti had made no claim to represent them. Item: Further testimony-which the Teamsters business representative proffered without contradiction- warrants a conclusion that, when Respondent's Cu- pertino manager requested him to visit the facility so that he could "sign up" mechanical department workers who purportedly would wish to join, he (Pack) was told, specifically, that Teamsters could not enroll automotive mechanics. Item: Sometime during August, thereafter, the Teamsters represent- ative had a conversation with Respondent's general manager. His testimony in that connection, which Krupsaw did not deny and which I credit, reads as follows: Well, at that time Mr. Krupsaw was in town again and was a by chance meeting that I hap- pened to be out there on one of my routine checks and he happened to be in town. And he said to me: "Why don't you sign up all of the people?" and I told him I could not because of the longstanding agreement that the [M]achin- ists and the [T]eamsters had in that particular area in Santa Clara County and so forth. And he mentioned just offhand that, "Well, down in San Diego the Teamsters have all the people," and I mentioned to him that "Well, we don't happen to be in San Diego now." Yet, despite Marcotti's forthright statement that Teamsters considered itself bound to refrain from representing automotive mechanics, within the 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD county, various management representatives-so the credible testimony shows-persistently tried to persuade Schetter to renew his Teamsters member- ship. First: The mechanic 's testimony warrants a determination , despite Henson's qualified denial, that-within the mechanical department's first 3 months-the latter repeatedly suggested, some three or four times, that he (Schetter) should, re- gardless of his prior rebuff, seek Teamsters mem- bership; Henson's modified suggestion was that he should claim to be nothing more than a tire service man, while continuing to do mechanical work. Schetter's reaction, realistically viewed , was nega- tive; he merely reiterated his previous report that Teamsters had refused to reinstate him. While a witness, Manager Pack conceded that he had heard Schetter's reiteration . Second: Henson's suggestions were, nevertheless, repeated by Respondent's Cu- pertino manager; Pack, so credible testimony shows, likewise declared-some two or three times-that he thought Schetter should rejoin Teamsters . The record, however, does not reveal any reply which the mechanic may have made, directly, regarding Pack's solicitation . Finally: Sometime during September particularly-so Schetter's credible testimony shows-he was told, during a conversation with General Manager Krup- saw, that, should any prospect develop at Respon- dent's Cupertino center for mechanic's unioniza- tion, he (Schetter) would be made an assistant manager, or management would do "something" else calculated to avoid collective bargaining. 3. The Machinists campaign With matters in this posture , so I find, Schetter and Schwartz discussed their situation. And Schwartz, thereafter, notified the Machinists that Respondent's management was trying to persuade its two Cupertino mechanics to join Teamsters; he declared that they wished to see some Machinist representative. (By that time, Respondent's third Cupertino mechanic, Jim Williams, whom Pack had pointed out during one of Marcotti's visits, had been terminated; so far as the record shows, he was never replaced.) Pursuant to this invitation, the business representative of Machinists District Lodge 93 , Kent Arnold, visited the Cupertino center. There, he conferred with both Schetter and Schwartz, promised that his organization would take whatever steps might be necessary to procure a contract as their representative , but declared that before this could be done they would have to sign union membership application cards . During their conversation , Manager Pack was-so he conceded, and so I find-within view. After leaving member- ship application cards for Respondent 's mechanics to sign, Arnold left the center. (These determina- tions rest upon the business representative 's credi- ble testimony, which Pack substantially cor- roborates. That testimony will further support a factual determination that, following his conversa- tion with Respondent 's automotive mechanics, Ar- nold promptly sought their manager, within Gem- Co's nearby store. Gemco's management spokesmen, when apprised of his purpose, sum- moned Respondent's Cupertino manager; the Machinists representative was introduced, or in- troduced himself. Pack was requested to designate whom he (Arnold) might "see" with regard to negotiating a contract. Respondent's manager declared that Global Automotive Enterprises, rather than Gemco , was responsible for the Cuper- tino service center; he referred Arnold to their San Diego headquarters.) Schwartz subsequently signed a Machinists membership application card on Oc- tober 3; Schetter did likewise on October 5. Both cards were submitted to Business Representative Arnold personally , so the record shows, on the latter date . He subsequently delivered them-so I find-to Keith Simmons , district council business representative for Complainant Union's auto mechanics local. 4. Respondent's reaction Credible testimony proffered by both Schetter and Schwartz warrants a determination, despite Henson 's denial, that Respondent 's operations manager-who had seen both Cupertino mechanics conversing with the Machinists business representa- tive-told them , later during the day, that, should they join Machinists, the respondent firm would not be able to afford their services; he declared, so I find, that the firm would have to sell its brake and front-end equipment and discontinue mechanical work. Schetter's testimony suggests that he may have told Henson during their conversation, despite the latter's warning, that he had just signed Complai- nant Union's membership application card. Whether he really did declare himself need not, however, be determined . The record-in any event-shows that, sometime in mid-October, thereafter, Business Representative Simmons telephoned Respondent's San Diego office, notify- ing the firm's secretary that he then held designa- tion cards from both of Respondent's Cupertino center mechanics and wanted to speak to someone in charge . (Since Schwartz and Schetter then con- stituted Cupertino 's full complement of mechanics, Respondent's management was clearly put on notice that both men had designated Complainant Union their collective-bargaining representative.) Respondent's secretary replied that General Manager Krupsaw and partner Mark Ratner were out of town ; she promised, however, that she would relay Simmons' message to the proper person. The Machinists business representative was further ad- vised that Respondent had been "expecting to hear" from Complainant Union, so that his telephone call constituted no surprise. Finally, regardless of whatever Henson may have been told , determination seems warranted that GLOBAL AUTOMOTIVE ENTERPRISES Respondent's Cupertino center manager, likewise, had been fully informed with regard to his mechanics' designation of Complainant Union herein; sometime during the month in question, probably within 3 days after his card signing, so Schetter's credible testimony shows, Pack specifi- cally commented to Schetter that he wished the latter had joined Teamsters. Late in October, having heard nothing from Respondent's management, Business Representa- tive Simmons placed a second San Diego telephone call. This time, so I find, General Manager Krupsaw responded; he acknowledged Respondent's receipt of Simmons'prior message.The business represent- ative then presented his claim to represent the firm's Cupertino mechanics. Respondent's general manager conceded Simmons' claim; he declared his realization that they (the Machinists business representative and he, speaking for Respondent herein) would have to get together. Simmons was asked to forward some copies of the Machinists General Automotive Agreement; he was told, further, that a partnership representative would get in touch during his next San Jose trip. Later that day, pursuant to Krupsaw's request, Simmons mailed copies of Complainant Union's draft con- tract to Respondent's general manager, which the latter concededly read. Sometime in late November or shortly thereafter-with December 1 the most likely date- the Machinists business representative met Respon- dent's general partner, Mark Ratner, and Opera- tions Manager Henson in a San Jose restaurant. Simmons asked whether Ratner had looked over the contract; Ratner replied, so I find, that he had read it, though he had not, in fact, read it complete- ly. With respect to the balance of their conversa- tion, the record reveals some significant testimonial conflict. First: According to Simmons, Ratner was asked whether there were any provisions within Complainant Union's contract proposal he would like to discuss; Ratner is said to have replied nega- tively, commenting that Respondent did not like Complainant Union's contract but would "adjust to live" with it. Ratner testified contrariwise, that the Machinists contract was not generally reviewed, but that Respondent's dissatisfaction with the docu- ment's provision relative to hours of work, work- week, and overtime was thoroughly detailed with respect thereto. Simmons purportedly declared Complainant Union's reluctance to consider any modification calculated to meet Respondent's spe- cial problem, derived from its connection with a discount store maintaining somewhat "unconven- tional" business hours. Second: According to Com- plainant Union's representative, Ratner stated he did not have authority to sign the contract, but that he would have General Manager Krupsaw there (San Jose ) to sign it the following week. Ratner, however, testified that Simmons was told Respon- dent's general manager "normally" negotiated and 631 signed contracts, and that the problem which Com- plainant Union's contractual overtime work provi- sion presented would have to be discussed with the latter during some further conference. Respon- dent's partner-while a witness-struck me as capable, conscientious, and generally devoted to the truth; though I would not presume to disparage Simmons as deficient in these respects, my review of the record has persuaded me that Ratner's recital, wherever it differs from that which Com- plainant Union's representative provided, merits credence. During cross-examination, Simmons did concede that Ratner had mentioned Respondent's special problems, with respect to Machinists con- tractual "overtime pay" provision, because of his firm's status as Gemco's lessee. I find the version of their conversation proffered by Respondent's partner, therefore, more consistent with the situa- tion, considered as a whole. Simmons further testified credibly-this time without contradic- tion-that, during their talk, he was requested to provide, and did provide, some additional draft contract copies. Finally, Ratner asked Complainant Union's representative, so I find, whether he ex- pected a contract which would cover Respondent's San Jose facility. Simmons replied that he would like that, because he had spoken with Respondent's sole San Jose mechanic and had learned that the latter was "willing to go along" with both Cuper- tino mechanics; Complainant Union's representa- tive confessed, however, that Respondent's San Jose mechanic had not yet signed a membership ap- plication card. With matters left thus, I find, their meeting concluded; the question of which party would take the initiative in setting a Simmons- Krupsaw meeting was not definitely settled. Simmons, having heard nothing from Respondent during the week which followed, telephoned San Diego about December 11 or 12, seeking a conver- sation with Respondent's general manager. The firm's secretary told him that Krupsaw was "out of town" but that she would communicate with him regarding Simmons' call. (The record, here, reflects some further testimonial conflict. Respondent's presentation suggests a belief or contention that some sort of mid-December conference between Simmons and Krupsaw had been set, which Sim- mons was calling to cancel. Simmons testified, how- ever, that no face-to-face meeting had yet been ar- ranged. Within this case's total context, this testimonial conflict concerns nothing of con- sequence. I have found its resolution unnecessary.) Subsequently, Simmons received a December 15 letter from Respondent's secretary stating that his message had been relayed to General Manager Krupsaw, and that "since the next two weeks will be involved with the holidays" she had been in- structed to say that Respondent's general manager would call him after the turn of the year. When Krupsaw failed to telephone, Simmons placed another San Diego call on January 11, re- 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minding him of his prior promise to get in touch. Respondent's general manager, so the record shows, then asked Simmons what had happened during his conference with Ratner, previously. (Ratner's testimony shows that he had reported the substance of his conference with Simmons to Krup- saw about 2-3 days after their San Jose get- together.) Complainant Union's representative replied that Ratner had said: (1) That he had read the complete contract; (2) that Respondent did not like it; but (3) that it would sign the document and would "adjust to live" with its terms. Krupsaw denied the correctness of Simmons' report. The business representative's testimony regarding their conversation-which I credit despite some discre- pancies, revealed by the record, between his recol- lection and that of Respondent's general manager- reads as follows: ... and he [Krupsawl said, "That is not the way I heard it. We are not going to sign that contract. We can't live with that contract and we doubt whether you represent those people or not. Do you have the cards on those peo- ple?" And I explained that I did, and he asked me if I would send photostatic copies-or asked me if I would send those cards down. I told him that I would send photostatic copies of those cards down, which I did that day.... Krupsaw's testimony regarding this telephone con- versation, with respect to some further matters, supplements rather than contradicts that which Simmons provided. With respect to such supple- mentary material, I find Krupsaw's recital credible. Thus, Simmons was* reminded, so I find, that Respondent's Cupertino center, under Gemco's lease, was required to maintain business hours which matched the lessor discount store's regular schedule and that provisions defining the workweek and workday in Complainant Union's standard con- tract would therefore require Respondent to pay premium overtime wage rates for some substantial part of its regular business hours, particularly after 5 o'clock on weekdays, and with respect to both Saturday and Sunday work. Simmons, according to Krupsaw's testimony, contended nevertheless that Respondent would have to take the contract as it stood. Respondent's general manager , by way of reply, noted that Teamsters had-within the San Jose ter- ritory-recognized the tendency of discount stores to set rather unconventional business hours and had, therefore, drafted separated contracts cover- ing automotive center personnel whose places of work were somehow affiliated with discount houses. Further, Simmons was told that other Teamsters locals, with which Respondent dealt for its nearby Redwood City and San Leandro, Califor- nia, facilities-opened in September and October 1966, respectively-covered mechanics contrac- tually, together with service station personnel, while recognizing Respondent's need to maintain "peculiar" hours calculated to match those of discount store lessors. Faced with Simmons' declaration that Complainant Union's contract proposal could not be modified, nevertheless, Krup- saw said that he would have to confer with his part- ners and Respondent's counsel. Further negotia- tions were proposed-so I find-by Respondent's general manager; Simmons, however, gave no sign that he was receptive to such a suggestion. With matters thus left, their January 11 conversation ter- minated. The photostatic copies of Machinists designation cards signed by Schwartz and Schetter were dispatched by Simmons, following this telephone call. Respondent received them on January 12-not on January 10 as the transcript, at one point, mistakenly shows. I so find. 5. The Discharges of Schetter and Nail a. Eugene Schetter Throughout this December-January period- with which we are now concerned-Schetter and Schwartz continued to constitute the full comple- ment of mechanics at Respondent's Cupertino center. Early in January 1967, however, General Manager Krupsaw asked Schetter whether he would consider a transfer to Respondent's Redwood City center, some 20 miles distant, to replace another worker there. Schetter requested permission to defer his decision, saying that he cur- rently had a commitment to provide local transpor- tation for his sister who was attending a beauty school, but that June 1967, would see him relieved of this duty. On January 21, Manager Pack discharged Schetter without prior notice or warning-and without prior consultation with Respondent's higher management. The mechanic was told of his discharge at 5 o'clock, 1 hour before the center's regular Saturday closing time. When questioned re- garding his reason, Pack declared, so I find, that his (Schetter's) work was unsatisfactory; no specifica- tion of those respects in which his work had sup- posedly failed to meet Pack's standard was given him. (Schetter, while a witness, claimed that Pack had merely said he was not selling enough parts. The Cupertino center manager-though he con- ceded that Schetter had previously been requested, several times, to improve his sales record-denied that the subject had been mentioned when the mechanic was discharged. With due regard for the record, considered in totality, I credit Pack's testimony regarding the substance of his contem- poraneously stated reason for Schetter's discharge. Credible testimony warrants a determination, which I make, that Schetter had never been criticized, previously, regarding his work performance. Under the circumstances, I consider it likely that, when told-without further specification-that his work was not considered satisfactory, Respondent's mechanic merely deduced that Pack was making a GLOBAL AUTOMOTIVE ENTERPRISES 633 back reference to his previous comments relative to Schetter's sales record . Pack's recollection further comports with his notation on Respondent 's regular "Personnel Change Request" form, prepared and dispatched to San Diego headquarters on or about January 17 , with respect to Schetter's forthcoming discharge; therein, Respondent's manager had declared his reason as follows: "Line work not up to what it should be." With matters in this posture, Pack's present recollection-regarding his previ- ously stated reason for Schetter's discharge-must be considered, within my view, more reliable than that of the terminated mechanic.) Respondent's manager, during cross-examination, conceded that-following Schetter's dismissal-they "talked a little bit" though he could not recall the subject of their discussion; when prompted he recalled, con- sistently with Schetter's testimony, that he (Pack) had conceded he "had a lot to learn" with regard to the function of mechanical departments and mechanics' work. The mechanic-so he testified- received his final paycheck when notified of his discharge. Within a January 30 letter directed to Complain- ant Union's counsel-which will be discussed sub- sequently herein-counsel for Respondent declared that Schetter had been dismissed "solely" because his work was not satisfactory; further, within the letter, Schetter's layoff was said to have been motivated "only" by his own failure to attend to business. b. Richard Nail While a witness, Pack conceded that his decision to discharge Schetter had really been reached about 1 week before the mechanic's termination. With Schetter's prospective release in mind, so the record shows, Respondent's Cupertino manager had hired Richard Nail on Friday, January 20, at Respondent's San Jose facility. Before he had been hired, the mechanic applicant had been given a January 18 practical test to determine whether he could do "front end" work. Nail's testimony- which I credit in this respect-warrants a deter- mination that Pack had been pleased with his test performance, had told him that he was thorough, and had hired him for both front-end and brake work at Respondent's Cupertino center. The mechanic was told that he would be given a 30-day trial period. (Pack, so I find, told Nail, inter alia, that he was being hired to replace a man who hadn't worked out (Schetter) whom he (Pack) was planning to release.) Nail, however, worked for 2 days, first, at Respondent's San Jose facility; his testimony, proffered without contradiction, war- rants a factual conclusion that Respondent's San Jose manager, likewise, declared he was pleased with Nail's work. On Sunday, January 22, the newly hired mechanic reported for work at Respondent's Cu- pertino center. Pack had concededly told him, previously, that he would "probably" have to procure Teamsters membership. When Nail re- ported at Cupertino, Pack said he would call a Teamsters representative, with whom he wished Nail would talk. The mechanic declared that he would "talk" with the man. (In point of fact, so Nail's credible testimony shows, no such conversa- tion with a Teamsters representative ever took place.) Later during the week-presumably on Tuesday, following the center's regular Monday closure-Respondent's manager told Nail, so the latter's credible testimony shows, that he would have to join Teamsters or suffer termination; Pack's testimonial denial with respect to Nail's recital in this regard is not credited. With this in mind, the mechanic told Schwartz, privately, that he had no intention of joining Teamsters, since Pack wanted him to join that Union as a tire service man. Nail declared that he would join Machinists, since he was a mechanic. Subsequently, within a conversa- tional group which included Schwartz, Respon- dent's tirechanger, and the nearby service station's manager, Nail reiterated his statement to Schwartz that he had no intention of seeking Teamsters membership. On Wednesday and Thursday, January 25 ana 26, the mechanic was ill and unable to work. He telephoned Respondent's center on Wednesday very shortly after noon, his scheduled starting time, and left a message for Respondent's manager that he would not be able to report because of illness. On Friday, however, he resumed work, putting in a full day. (Respondent's timerecords show that he reported for work 2 minutes late; the present record reflects a testimonial suggestion that he had telephoned to report prospective tardiness, since he had to get a friend's help to bring his toolbox. Respondent's record shows that he clocked out 5 minutes after Respondent's regular closing time.) On Saturday, January 28, Nail reported for work at 10:38 a.m., 38 minutes past his scheduled starting time. He worked until 1 o'clock, approximately, when Pack summoned him to Respondent's center office and told him that he would have to let him go. The mechanic requested the reason for his ter- mination: Respondent's manager declared-accord- ing to Nail's testimony-that it was because he took too long to change ball joints. The mechanic protested Pack's comment, declaring that changing ball joints normally required something between one-half hour and 2 hours, sometimes more, and that he usually changed them in about half an hour. (Pack's recital, with respect to their Saturday con- versation, raises a testimonial conflict. He declared that Nail had reported for work "late and unshaven" looking as if he had been on an all-night drunk, and that he (Pack) had decided to terminate the mechanic, forthwith, since he did not wish Nail to meet customers while in that shape. According to Pack, Nail was told that he was being terminated because he had come to work tardy and unshaven, and because he was not neat. Nail did recall such a 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD comment by Pack, made during a subsequent con- versation, but denied that Respondent's manager had-when discharging him-commented about his appearance. With due regard for the record, which clearly reveals Pack's witness-chair disposition to temporize, coupled with my observation of Respon- dent manager's witness-chair demeanor generally, Nail's recital, regarding the reason given for his discharge, is credited.) When he prepared Respon- dent's conventional "Personnel Change Request" form with respect to Nail's termination, however, Pack gave his "reason" as follows: "Off three days, worked two, late to work 1/28/67-not enough ex- perience." (Emphasis supplied.) In point of fact, Nail had worked 3-plus days at Respondent's Cupertino center, directly following 2 day's work at the firm's San Jose facility; he had been absent no more than 2 working days within the week. Nail did not receive his paycheck concurrently with his discharge. Thereafter, so the record shows, he made three visits to Respondent's facility before his check arrived from San Diego headquarters. On his second or third visit, so I find, Nail repeated his query regarding the reason for his discharge; Respondent's manager, then, declared-for the first time-that the real reason for his termination was because he had reported late and unshaven on his last work day. c. Subsequent developments On January 28, right after Nail's discharge, Pack promptly hired a replacement, Lynn Sidam, for work as both a tire service man and front-end mechanic; the record shows that he was hired for a 30-day trial period, until he could prove his ability to do mechanic's work. During cross-examination, Respondent's manager conceded that, when Sidam was hired, he was told to join Teamsters; Pack could not recall Sidam's response, but "imagined" that he had responded affirmatively. The record, however, shows nothing in regard to Sidam's further work history; February 9 was stipulated as his last day worked. On March 16, better than a month later, Respon- dent's manager hired Lloyd Yeske as Sidam's replacement. Yeske, likewise, was concededly told to join Teamsters; he declared his willingness to do so, and-so Pack testified-subsequently did join. When the hearing, herein, was held, Yeske was still in Respondent's hire. Pack's testimony warrants a determination that his current work requires the "qualifications" which Schetter and Schwartz pos- sessed; presumably the manager's statement must be taken to mean that Yeske presently does a mechanic's work. Further, so Pack testified, he is presently the Cupertino center's assistant manager. 6. Respondent's refusal to bargain Meanwhile, on January 26, Complainant Union's counsel had written General Manager Krupsaw claiming to represent "employees" at Respondent's Cupertino center, protesting Schetter's purportedly discriminatory discharge, and demanding that Respondent cease its presumptive refusal to bar- gain. Within a reply dated January 30, Respon- dent's counsel conceded that the firm's Cupertino center currently had a Teamsters contract which covered "all but two" workers who "might have fal- len" within Machinists trade jurisdiction. In Respondent's behalf, Complainant Union's counsel was told, however, that Schetter had been discharged for cause. With respect to Complainant Union's "refusal to bargain" claim, Respondent's counsel declared that: Under the circumstances, since we have only one employee who would fall within the purview of your union, I do not believe it to be a proper situation for bargaining. [Emphasis supplied.] There have been no further contacts between Com- plainant Union and Respondent's management. On February 15, Complainant Union's first charge, herein, was filed. C. Conclusions 1. General statement Realistically viewed, Respondent's course of con- duct-challenged herein as violative of law-clearly derived from management's reluctance to deal with Machinists, whose standard "General Automotive" contract, should it be negotiated without modifica- tion, would necessarily impose significant financial burdens. But entrepreneurial concern regarding the possible economic consequences of collective bar- gaining-however well founded and reasonable - cannot excuse proscribed conduct calculated to forestall or preclude workers from their enjoyment of statutorily defined and guaranteed rights. Com- pare N.L.R.B. v. Peter Cailler Kohler Swiss Choco- lates Company, Inc., 130 F.2d 503, 506 (C.A. 2). The comments of Learned Hand, Circuit Judge, therein-though proffered regarding a completely different problem-merit recapitulation: . the Act does not excuse "concerted activi- ties," themselves independently unlawful ... . But so long as the "activity" is not unlawful, we can see no justification for making it the occasion for a discharge [or refusal to bargain] .... Such activities may be highly prejudicial to [an] employer ... but the statute forbids him by a discharge [or refusal to bargain] to rid himself of those who lay such burdens upon him. Congress has weighed the conflict of his interest with theirs, and has pro tanto shorn him of his powers.... Thus, Respondent's management-when con- fronted with Teamsters declared reluctance to represent the Cupertino center mechanics, coupled with Machinists subsequent demand for recognition as their collective-bargaining spokesman-could GLOBAL AUTOMOTIVE ENTERPRISES not, legitimately, seek to forestall or preclude a confrontation with "potential" financial burdens through statutorily proscribed conduct. Whether Respondent's challenged course of conduct herein did, really, trangress permissible limits must, there- fore, be presently reviewed. 2. Interference, restraint, and coercion Previously , within this decision , my determina- tion with respect to Operations Manager Henson's October 5 statement, directed to mechanics Schetter and Schwartz specifically, has been noted; Respondent's management representative told these workers, so I have found, that Respondent would discontinue its mechanical work, should they designate Machinists as their collective-bargaining representative. This comment, so the credible record shows, was made shortly after Henson had seen both mechanics talking to the Machinists busi- ness representative , and likewise followed their sub- mission of signed membership application cards to that representative. (Henson , it should be noted, did not categorically deny having made the com- ment in question to Schetter and Schwartz; he merely claimed that he had no recollection with respect thereto, while conceding that he had, dur- ing this period, made a substantially similar state- ment to Respondent 's Cupertino manager. Upon this record , determination seems clearly war- ranted-consistently with the testimony which both Schetter and Schwartz proffered-that Henson's statement was made directly to them .) Henson's comment, when proffered, represented something more than mere prediction , regarding possible economic consequences which might follow "un- ionization" generally. Within context, his state- ment constituted a clear threat of economic loss of Respondent 's Cupertino center mechanics, should they choose Machinists, rather than Teamsters herein, as their collective-bargaining representative. Thus construed, Henson's comment clearly merits characterization as statutorily proscribed inter- ference , restraint, and coercion. Crystal Tire Co., 165 NLRB 563; Manley Transfer Company, Inc., 164 NLRB 174. I so find. General Counsel contends that-were I, rather, to credit Henson's concession that he had made a substantially similar statement merely to Cupertino Manager Pack , where it "may have been over- heard " by rank-and-file workers-some similar conclusion would be warranted. Ford Radio & Mica Corporation, 115 NLRB 1046, 1047, reversed on other grounds 258 F.2d 457 (C.A. 2); Dit-Mco, Inc., 127 NLRB 269; but see Colecraft Manufactur- ing Company, Inc. v. N.L.R.B., 385 F.2d 998 (C.A. 2), reversing in part 162 NLRB 680. Since I have, however, credited testimony that Henson's chal- lenged statement was made to Schetter and Schwartz directly, I have found it unnecessary to consider this question. Likewise, I have found that Manager Pack subsequently threatened Nail with 635 discharge should he fail to seek or procure Team- sters membership. While a witness, Pack denied making any threat of reprisal, but did concede Nail had been told, when hired, that he would probably have to join Teamsters when he transferred to Respondent's Cupertino center 2 days thereafter. Nail's positive testimony with respect to Pack's threat, within my view, merits credence. The testimony proffered by Respondent's Cuper- tino manager, save where corroborated or demon- strably consistent with the balance of the record, cannot be considered worthy of belief. While a wit- ness, he displayed some tendency to "inflate" descriptions of his function and responsibility; re- garding the substantive matters with which this case is concerned, he proffered several generalized "overstatements" which were followed by retreats and concessions. Several times, when requested to fix dates for relevant developments-particularly when queried regarding their relationship to Schet- ter's date of hire-he professed a failure of recol- lection regarding the latter's date of hire, or proffered a chronology patently inconsistent with the balance of the record. Whether these witness- chair deficiencies derived from mere nervousness, or some purpose to obfuscate, need not be deter- mined; within my view, they render his testimony less than reliable. In this regard, note should be taken-consistently with General Counsel's conten- tion-that Pack's purported threat of discharge was consistent with Respondent's prior and subsequent course of conduct, described within this Decision, calculated to prevent Machinists from representing the firm's Cupertino center mechanics. Within General Counsel's brief, that course of conduct has been summarized as follows: Before Machinists appeared on the scene, Respondent attempted to force its mechanics to join the Teamsters. Immediately after Machinists had signed up the two mechanics they were threatened with loss of employment. Subsequently, after learning the proposed terms of a Machinists contract, Respondent at- tempted to destroy the unit for purposes of bargaining by proposing to transfer one of its two mechanics to another store. A short time after Schetter declined to accept a transfer, Respondent summarily discharged him. After defeating the Machinists majority by its unlaw- ful discharge of Schetter, Respondent refused to meet or bargain with Machinists, asserting the inappropriateness of a one-man unit. Fol- lowing Schetter's discharge, Respondent at- tempted to insure against Machinists obtaining a new majority by hiring a series of mechanics, each of whom was unlawfully directed to join the Teamsters, until one was found who did so. Nail was-so General Counsel notes-first in the series of mechanics hired as Schetter's replace- ment. Within the context of Respondent's total course of conduct calculated to defeat Machinists representative status, therefore, determination 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clearly seems warranted that Pack did threaten Nail with discharge. The complaint herein does not specifically charge Respondent with liability for Pack's threat; this does not, however, preclude a present conclu- sion that Section 8(a)(1) of the statute was violated thereby. Nail's testimony with respect to Pack's declaration was received without protest or claim of surprise; Respondent had a full opportunity to produce rebuttal testimony, and did in fact litigate the matter. Further, Pack's challenged statement clearly merits characterization as closely related to specific allegations which are found within the complaint. Casino Operations, Inc., 169 NLRB 328; New England Web, Inc., 135 NLRB 1019, 1023; Stokely-Van Camp, Inc., 130 NLRB 869, 872. I so find. 3. Contributions of assistance and support General Counsel argues that the present record shows a clear course of conduct, chargeable to Respondent partnership, calculated to forestall the firm's need to recognize Machinists and to provide a basis for negotiation with Teamsters instead. Such conduct-so the contention runs-went beyond a mere demonstration of preference for Teamsters, and constituted both (a) statutorily forbidden sup- port for that organization and (b) proscribed inter- ference, restraint, and coercion with respect to workers' rights. With due regard for the record considered as a whole, this contention, within my view, must be considered substantiated. Though partnership management representatives had clearly been told that Teamsters did not con- sider its previously negotiated "Service Station" contract relevant or material, with respect to representation for mechanics, both Krupsaw and Pack tried-during July and August 1966, specifi- cally-to persuade Business Representative Mar- cotti that Teamsters should enroll and represent Cupertino center workers within that classification. (In this connection, note should be taken of Schet- ter's testimony-which Krupsaw did not deny- that, during the mechanic's May 1966 San Diego talk with Respondent's general manager, he had been told that there would be "no union" with which he would have to be concerned when he re- ported to Respondent's Cupertino center.) During August and September, Operations Manager Hen- son further suggested to Schetter, several times, that he should join Teamsters. These suggestions- so I have found-clearly revealed Henson's purpose to suborn subterfuge; Schetter was solicited to seek Teamsters membership as a tire service man, while continuing to do mechanic's work. Respondent's Cupertino manager, likewise, con- ceded that he had urged Schetter to join Teamsters, several times during the mechanic's first 3 months. Following Schetter's contact with Machinists Busi- ness Representative Arnold, Pack told Respon- dent's mechanic, so I have found, that he wished the latter had joined Teamsters instead. Twice, thereafter, Respondent's manager-in ef- fect-solicited Schetter's replacement, Nail, to join Teamsters. First, Nail was told that he would "most likely" have to join the union designated; sub- sequently he was requested to "talk" with a Team- sters representative whom Pack proposed to sum- mon. Finally, Pack's solicitation was buttressed with a declaration-so I have found-that Nail would have to join Teamsters or suffer discharge. Further, comparable solicitations were directed to Sidam and Yeske, when each was successively hired as Schetter's and Nail's replacements. Though Sidam and Yeske were-according to Pack's testimony-nominally hired as "tire men and front end mechanics" they were concededly employed for work comparable with that which Schetter and Nail had done. Upon this record, there can be no doubt, therefore, that their "tire" work was expected to require, normally, service for but a minor part of their total worktime; like Schetter and Nail they were, primarily, hired as mechanics. With respect to Yeske, currently in Respondent's employ, Pack's testimony reveals that-though he (Yeske) presently holds Teamsters membership-he possesses the "same qualifica- tions" as Nail and Sidam, respectively. Well-established Board decisional doctrine teaches that Section 8(a)(2) and (1) is violated whenever employers contribute assistance or sup- port for some specific labor organization, particu- larly when such conduct is coupled with further conduct reasonably calculated to destroy the majority status of some other union claiming representation rights, or when respondent firms so- licit or seek to persuade workers to join a favored collective-bargaining representative. Cf. Powers Regulator Company v. N.L.R.B., 355 F.2d 506 (C.A. 7), enfg. 149 NLRB 1185; Hopcon, Inc., 161 NLRB 31; Thurston Motor Lines, Inc., 159 NLRB 1265. The present record, which I have sum- marized, makes it more than clear that Respon- dent's management representatives provided Team- sters with statutorily proscribed assistance and sup- port through their repeated suggestions that Cuper- tino mechanics should seek and procure member- ship within that organization. Though some of these suggestions-so the record shows-were made before Respondent's Cupertino center mechanics finally signed Machinists designa- tion cards, that circumstance cannot divest Respon- dent's conduct of statutorily forbidden thrust. When management's suggestions were made, Respondent's spokesmen "well knew" that the Santa Clara County Teamsters local, with which it currently maintained contractual relations, had foresworn whatever claims it could have made to represent automotive mechanics, contractually or within the scope of its conceivable trade jurisdic- tion. Thus, suggestions which realistically called GLOBAL AUTOMOTIVE ENTERPRISES 637 for Respondent's mechanics misleadingly to claim "tirebuster" status merely reflect a calculated management ploy, designed to forestall their possi- ble self-organization, thereafter, within some dif- ferent group. Respondent's challenged course of conduct, therefore, represented a contribution of support, despite Teamsters freely declared reluctance to countenance, or derive benefits from such conduct's fruition. I so find. 4. The discharges a. Eugene Schetter General Counsel contends that Respondent sought to transfer, and later discharged, Schetter because he had refused to join Teamsters, and because he had designated Machinists his collec- tive-bargaining representative . Further, General Counsel contends that Respondent's management, believing itself confronted with Machinists pre- sumptively rigid bargaining demands with respect to significant cost factors, terminated and replaced Schetter with the thought in mind that Machinists justification for demanding recognition would thereby be destroyed, permitting Respondent part- nership to claim relief from any statutorily defined duty to bargain. Respondent claims, contrariwise, that Schetter was discharged, nondiscriminatorily, for "good and sufficient" cause related to his work. The record, considered in totality, fully warrants a determination, within my view, that Respondent's several presently propounded reasons for Schetter's termination merit characterization as pretextual. No substantial or credible testimony has been proffered that Respondent's mechanic was ever criticized or warned, before his discharge, regard- ing serious deficiencies in work performance which could conceivably have persuaded management to dispense with his services . Nor does the record war- rant a conclusion that specific deficiencies, charge- able to him, were mentioned when he was separated. (While a witness, Respondent's Cuper- tino manager conceded that Schetter was, then, merely told, generally, that his work was not satisfactory.) These parallel circumstances, clearly, both point, at least, toward a factual determination that Respondent's presently cited reasons for Schet- ter's challenged termination reflect post facto ra- tionalization merely. The balance of the record-within my view- fully warrants such a determination. Considered on their merits, Respondent's several presently proffered justifications with respect to Schetter's discharge clearly merit characterization as lacking in substance. Item: Reference has been made to Pack's present testimony that Schetter was told, when discharged, merely that his "work" was not considered satisfactory. Pack's contemporaneously written report regarding the mechanic's discharge further contained a statement that his "line work" had not met managerial standards. The present record, however, provides no support whatever for Respondent's purported judgment that the quality of Schetter's work was substandard. With respect to muffler and tailpipe work, Schwartz, his fellow mechanic-clearly considered by Respondent's management as highly qualified and competent within his professional field-declared that very few people could "hold a candle" to Schetter; Pack, while a witness, himself conceded that the mechanic had done "excellent" muffler and tail- pipe work. With respect to so-called front-end and brake work, Schetter was concededly less expert. The record shows, however, that Respondent's management-which had, throughout, recognized his need to develop skill within these fields-had provided him with further training; Pack conceded that Respondent's decision to provide such training normally signified a judgment that the worker con- cerned had good potential. Consistently, the record shows that Schetter, within a relatively short time following his hire, had received a raise; this, despite Respondent's recogni- tion that, with respect to front-end and brake work, he then needed further training. While a witness, Schwartz, when queried regarding Schetter's qualifications, declared that his front-end and brake work had been "adequate but slow" while com- menting further that he learned quickly. Respon- dent's Cupertino manager did testify that he had received several customer complaints regarding the quality of Schetter's work. He did not, however, furnish particulars; nor does the record otherwise provide clues with respect to dates when such com- plaints were purportedly received, their nature, or the extent to which they may have involved work which had to be redone. Pack's testimony with respect thereto cannot be considered reliable, sub- stantial, or probative. By and large, this record-though it probably will not justify a conclusion that Schetter was, in every respect, superlatively well qualified-certainly will not support a determination, consistent with Respondent's seeming claim, that his workmanship failed to meet reasonable standards. Item: While a witness, Pack mentioned-several times-that Schetter's general work had "slacked off" some 4 or 5 months following his date of hire. The manager's implied concession that he first began to notice Schetter's purportedly deteriorated work during October and November 1966, necessarily suggests that he had noticed no ground for criticism before Schetter and Schwartz signed their Machin- ists designation cards. (In this regard, however, Pack's testimony lacked consistency. While declar- ing that he had not found Schetter's work subject to criticism until some 4 or 5 months had passed, Pack concurrently testified that he had spoken to Schetter some two or three times, possibly during the first 3 months of his employment, suggesting that he should modify his manner toward customers and his purportedly sloppy work habits.) 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's Cupertino manager did testify that the firm's tire service man , Bill Gould, had com- plained, some three or four times, about being required to help with Schetter's work, particularly his work on cars and various cleanup tasks. These complaints, however, were not dated; nor will the record warrant a determination that they were communicated to Schetter when made. Pack's testimony further provides no basis whatever for concluding that Gould would ever have been requested, much less permitted, to do mechanical work. (When this case was heard, Gould was no longer in Respondent's employ; he had left Califor- nia and could not readily be produced for testimony. Pack's recital regarding his purported complaints, therefore, must be weighed without re- gard for Gould's possible corroboration or con- tradiction. Consistently with General Counsel's sug- gestion, herein, I find it difficult to believe that Respondent's manager would have credited or re- lied on verbal reports proffered by a tire service man, regarding a mechanic's work, without seeking to verify those reports through direct, personal ob- servation. Pack's recital, however, reveals more, despite the smallness of Respondent's Cupertino facility.) With matters in this posture , Respondent's contention that Schetter's "general" work had deteriorated may properly be characterized as lacking in circumstantial detail ; it suggests af- terthought merely and, within my view, merits re- jection. Respondent's proffers of specific criticism with respect to Schetter's work, likewise, lack persuasive power. Item: Cupertino Manager Pack declared that Schwartz had complained some half-dozen times regarding, (a) his fellow mechanic's failure to keep his work area well ordered and clean, (b) the quality of Schetter's work, and (c) his failure to maintain a steady pace while working . Once more, however, Pack's testimony provides no clue with respect to when such complaints were made. While a witness , Schwartz declared, however, that his sole comment regarding Schetter's failure to keep his work area clean had been made midway during Schetter's 7-month job tenure. And the record reflects no corroboration whatever for Pack's pur- ported recollection that Schwartz had, likewise, complained regarding the quality of Schetter's work or his purported failure to work steadily. (Schwartz, while a witness, did concede that Schetter would sometimes work slowly; his testimony , however, will not warrant a conclusion that he (Schwartz) had considered this a serious fault, or that com- ments regarding Schetter's pace had been made to Respondent 's manager.) Pack testified that he had spoken to Schetter, two or three times, regarding his work habits. He could not, however, recall dates; nor does his testimony , with respect thereto, reveal circumstantial detail . With due regard for Schwartz' contradiction of Pack's testimony in this regard , and Schetter 's witness-chair denial that he had been criticized for purportedly sloppy work habits-which I have weighed in the balance with Pack's testimonial vacillations, previously noted, and his general lack of reliability-Respondent's contention with respect to this dischargee's pur- ported "work habit" deficiencies cannot be con- sidered persuasive. Item: Respondent contends, finally, that Schetter's curtness when dealing with customers contributed to Pack's judgment. Cuper- tino Manager Pack testified that he had received several customer complaints regarding Schetter's lack of courtesy, during October and November 1966, and that he then began to notice that the mechanic was "short" with customers. (Elsewhere within his testimony, however, Respondent's manager declared that he had cautioned Schetter regarding his attitude toward customers at least once during the mechanic's first 3 months. For reasons previously noted , Schetter's denial, with respect to this testimony, merits credence.) Schwartz, however, testified that Schetter's conver- sational manner with customers could not, really, be considered discourteous. With due regard for the complete record, Respondent's lack of specificity with respect to this charge-which General Counsel has fully countered with Schwartz' credible contradiction and Schetter 's credible deni- al that the subject was ever mentioned-renders the partnership 's present reliance thereon , within my view, something less than tenable. Respondent's presentation suggests possible reliance upon two further grounds to justify Pack's purportedly critical judgment regarding Schetter's work. Neither specification, however, will-within my view-support the firm's position . Item: Pack testified that, sometime before his termination, Schetter had been requested to make a physical count of Respondent's locally held stock in trade, calculated to verify the firm's Cupertino inventory record. When the mechanic had reported his count, Respondent's manager had-so he testified- declared his belief that the count was not correct. Schetter had, then, been requested to make a recount during working hours , but had refused. Pack's recital , with respect to this matter , stands without significant dispute. With due regard for the record, however, I am presently persuaded that Respondent's purported reliance upon this incident, presumably to buttress its contention regarding the validity of Pack's discharge decision, merits rejec- tion. For one thing, the record shows that Schwartz, when requested to pursue the recount in Schetter's stead, reached no substantially different result; hence, whatever possible justification Pack may have had for serious displeasure , bottomed upon Schetter's presumptive defiance, would necessarily have been substantially dissipated. Secondly, Pack's chronology, with respect to this matter, was vague; he dated it, merely, some 1-1/2 months before Schetter's San Diego training session. (Since Schet- ter's credible testimony will, in my opinion , warrant a determination that he was sent to San Diego dur- ing late July, this inventory contretemps could have GLOBAL AUTOMOTIVE ENTERPRISES 639 taken place very early during the mechanic's job tenure. Respondent's Cupertino manager , however, recalled Schetter's San Diego training session as having taken place during December ; this would suggest a date for Pack's inventory "incident" sometime during the October-November period.) Whatever date choice the record may warrant, there can be no doubt that Pack's presumptive dis- pleasure over Schetter's refusal to follow his direction became stale long before the mechanic's challenged discharge. Respondent 's present revival of the matter clearly reveals its mere "makeweight" character. Item: With respect to Schetter 's purpor- tedly low sales record, little need be said. Pack testified that the mechanic had been requested, two or three times, to increase his sales, with the last occasion some 1 - 1/2 months before his discharge. And Schetter did concede receiving such a sug- gestion; he testified, however, that his sales record-particularly with respect to "glass pack" mufflers-was good. Schwartz recalled that-while Schetter was not a particularly aggressive salesman-he did his share . Finally, Respondent's Cupertino manager conceded-during cross-ex- amination-that Schetter did sell customers what- ever parts they might need; further, he conceded that Respondent had no readily reviewable records showing sales by particular mechanics . With mat- ters in this posture , Respondent can hardly now contend, persuasively, that Schetter's discharge derived, justifiably, from Pack's purported dissatisfaction with his sales record. Determination may be warranted , arguendo, that Schetter was no paragon; paragons are rare. Nevertheless, whatever his work deficiencies may have been, there can be no doubt-upon this record-that management did not consider them serious. General Manager Krupsaw and Cupertino Manager Pack both were-so I find-reconciled to their toleration . (General Manager Krupsaw, for example , testified that, despite Pack's purported "complaints," he (Krupsaw) liked Schetter; his proposal that Schetter should consider a Redwood City transfer derived , so he declared, from his be- lief that a change of location would "benefit" the mechanic . Significantly, nevertheless, Krupsaw's proffer to Schetter was not accompanied by any citation of Pack's purported criticisms; nor was the mechanic advised that his work performance would have to improve, thereafter.) When, however, Respondent's management discovered-so they thought-that Machinists contract negotiators would, most likely, continue to press certain work- week, hours, and premium pay demands which Respondent partnership considered oppressive, Schetter became expendable . His termination, so I find, represented Respondent 's counter strategem; with Schetter replaced, Respondent's management could-with some plausibility-contend that Machinists no longer represented a majority of the firm's mechanics, within a proper unit for collective bargaining. (Such a claim, presumably, could have been made whether Machinists were claiming representative status within the two-man Cupertino unit or within a three-man unit encompassing Respondent's San Jose and Cupertino centers.) Due regard for the record, considered in totality, thus persuades me that Schetter's discharge derived, really, from Respondent's desire to sidestep, through such a device, financially burden- some contract demands which-up to then-the Machinists negotiator had, seemingly , refused to modify. This determination, substantially, rests upon several factors. First: We may note the so-called timing factor . Schetter was discharged some 2 weeks after his refusal to consider a transfer out of Machinists-claimed Cupertino bargaining unit, and some 10 days after General Manager Krupsaw had-so he thought-learned that Machinists work- week and premium pay demands , which he con- sidered unreasonably burdensome, might not be negotiable . (In this connection , Pack's testimony further reflects a concession that his decision to discharge Schetter was reached within 3 or 4 days after General Manager Krupsaw's January 11 con- versation with Machinists business representative.) Nine days previously, Respondent's general manager had been provided with a photostatic copy of the mechanic 's union designation card . Second: Respondent's pro-Teamsters, anti-Machinists disposition had previously been made clearly manifest. Operations Manager Henson had told Schetter and Schwartz that Respondent partner- ship-should the firm find itself required to comply with Machinists several stringent contract terms- might cease doing mechanical work; Business Representative Simmons had further been told, specifically, that Respondent's management con- sidered his organization's standard contract provi- sions (with respect to hours of work , workweek, and premium pay) prohibitively burdensome, com- pared with Teamsters comparable contractual requirements . Third: Manager Pack's contem- poraneously stated reason for Schetter's discharge cannot be considered persuasive . Its specious generality has previously been noted . And Respon- dent's testimonial presentation-herein-still lacks circumstantial detail , reflects chronological vague- ness, and suggests very little more than post facto rationalization. Considered in totality , Respon- dent's several presently proffered justifications clearly merit characterization as trivial; further, determination certainly seems warranty d that most were chronologically remote when Respondent's Cupertino manager decided upon Schetter's ter- mination. Respondent has cited no demonstrable deficiency in Schetter's work performance, chronologically proximate to Pack 's discharge deci- sion, which could conceivably have "triggered" matters. Fourth: The mechanic 's discharge was, concededly, effectuated without any prior warning 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or notice; this, despite Pack's testimonial conces- sion that his decision regarding Schetter 's termina- tion had really been made 1 week previously. Fifth: The mechanic's replacement, whom Respondent's Cupertino manager had concededly hired with Schetter's termination in prospect , had no union af- filiation. Yet Pack, concededly, had told him, be- fore his scheduled starting date at Respondent's Cupertino center, that he would "most likely" have to seek Teamsters membership ; this, despite Pack's necessarily patent knowledge, fully demonstrated within the confines of the present record that Teamsters would continue to disclaim representa- tive status with respect to persons hired as mechan- ics, within Santa Clara County specifically. With matters in this posture , determination seems clearly warranted, consistent with General Counsel's contention, that Respondent 's Cupertino manager really discharged Schetter because of his (Schetter's) decision to designate Machinists, rather than Teamsters local, his collective-bargain- ing representative, and because Respondent part- nership, thereby, was seeking to sidestep and forestall its statutory duty to deal with Machinists further. b. Richard Nail When hired to replace Schetter, Nail was-so I have found-promptly told that he would "most likely" have to join Teamsters , and that he "should" do so; Respondent's Cupertino manager further solicited him to consult a Teamsters representative , and subsequently threatened him with discharge should he fail or refuse to seek Teamsters membership . With matters in this posture, General Counsel contends that: Respondent's object was obvious: to obtain a replacement for Schetter who would join the Teamsters and thus reduce the Machinists [representation ] to [one man within a two- man] unit . When solicitation and threat proved unavailing with Nail, he was summarily discharged without notice or warning and was, in turn, replaced, first by Sidam and then Yeske. Within his brief, counsel for Respondent contends, however, that Nail was discharged , within his 30- day trial period, because of his "completely un- satisfactory" work record. Regarding General Counsel's contention, Respondent suggests that no reliable, substantial, or probative testimony has been proferred which would warrant a determina- tion that Respondent's Cupertino manager knew of Nail's purportedly " undisclosed intention" not to seek Teamsters membership . Therefore, upon the present record-so Respondent's counsel con- tends-no "inference" would be justified that Respondent's Cupertino manager had, somehow, acquired such knowledge , or that Nail's termination had been motivated thereby. Certainly, with respect to Nail's challenged discharge, General Counsel has presented no clear- cut, simplistic "open-and-shut" case. Nevertheless, with due regard for the complete record, deter- mination seems warranted-within my view-that his (General Counsel 's) representatives have made their point. My conclusion, noted, rests on several grounds: 1. The record-despite Respondent's disparag- ing reference to Nail's work record-provides more than sufficient justification for a determination that he was a competent mechanic . Though merely 21 years old when hired, he had been doing "front end" mechanical work for some 4 years. He had successfully passed Pack 's practical test, and his work thereafter had favorably impressed Respon- dent's San Jose manager . Schwartz, when queried with respect to Nail 's competence , declared him the fastest mechanic at changing ball joints and aligning front ends that Respondent had ever hired; further, he termed Nail a "very satisfactory" worker. With due regard for this record, Pack's notation on Respondent's "Personnel Change Request" form-some 10 days following his pre- sumptive review of Nail's application and qualifica- tions-that he (Nail) did not have "enough" ex- perience, must be considered blatantly pretextual. While a witness, Pack proffered no testimony, whatever, calculated to justify his seeming change of mind , within such a short period, regarding the worth of Nail's prior work history. 2. Respondent 's own testimonial presentation- taken at face value-presently reveals Pack's reliance upon shifting reasons for this challenged discharge , most of which lack record substantia- tion. First: While a witness, he claimed that Nail had been discharged because of his January 28 tardiness and unshaven appearance , and that these reasons had been cited when the mechanic was ter- minated . Within a prehearing statement , however, Pack had described his discharge decision as bot- tomed upon Nail's tardiness and his "non-interest" in his work; however, he had claimed, then, that Nail was told he was being terminated "because of his appearance , work insufficient." The record, thus, does show Pack 's consistent position that Nail's January 28 tardiness had been a factor which had subjectively motivated his discharge decision; Respondent's Cupertino manager, however, stands revealed as offering inconsistent statements with re- gard to whether Nail's tardiness had been verbally cited as one factor which had motivated the discharge decision . Second: While a witness, Pack contended that his prehearing statement declaring his purported subjective reliance upon Nail's seem- ing "non-interest" in his work should not be con- sidered really inconsistent with his testimonial statement that Nail's unshaven look was one factor which had subjectively motivated his discharge. This contention cannot be dismissed as lacking in plausi- bility. It is a fact, however, that Respondent's manager-when he prepared Respondents person- GLOBAL AUTOMOTIVE ENTERPRISES 641 nel change form-made no reference, whatever, to this purported subjective reason for Nail's discharge, despite his testimony that Nail's pre- sumptive failure to shave had been mentioned when the mechanic was terminated . Third: When queried with respect to his prehearing statement that Nail was told he was being separated because his work was not sufficient, Pack could not recall any defi- ciency in Nail's work which had motivated his pur- ported comment ; he could only speculate that he "might have" noticed something. Significantly, Respondent's manager made no testimonial claim that Nail's work was substandard . Finally: Reference should be made to Pack 's further nota- tion on Respondent's personnel change form re- garding Nail's attendance record. Stipulations proffered herein, regarding Nail's work history with Respondent partnership-with respect to his days worked and his period of absence due to illness- reveal Pack's notations as contrary to fact. And well-established decisional doctrine teaches-with judicial concurrence-that, when a respondent firm's proferred justifications for challenged con- duct lack both consistency and persuasive thrust, determination may well be considered warranted that respondent 's motivation had, really, been derived from statutorily proscribed considerations. Cf. Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9). Thus, Respondent's presentation herein-with its deficiencies noted- strengthens , rather than weakens, General Coun- sel's position. 3. With Pack 's testimonial vacillations duly con- sidered, Nail's witness-chair recital regarding the manager's stated reason for terminating him has been credited. That purported reason-the mechanic's supposed slowness in changing ball joints-completely lacks record support; Schwartz' testimony, with respect to Nail's work , would war- rant a precisely opposite conclusion. 4. In short, upon this record, Pack's belated declaration-several days thereafter-that Nail had really been discharged because of (a) his January 28 tardiness, and (b ) his unshaven look, suggests that, so far as Respondent's Cupertino manager is concerned , precautionary reconsideration may well have been the mother of contrivance. (While a wit- ness, Nail contended that his last shave, before he reported for work January 28, had been taken the previous night. Further testimony has been proffered which would warrant a conclusion that Nail's beard growth was, normally, both relatively fine and slow, so that he would not , and did not, require frequent shaves . I find no necessity, how- ever, to determine herein how many hairs make a beard. With a workman of Nail's presumptive com- petence, discharge without prior notice or warn- ing-for such relatively trivial reasons, which would be readily susceptible of remedy-strains creduli- ty.) If, as Respondent contends, Nail's unshaven look was a factor-concomitant with his tardi- ness-which motivated his termination, Pack's testimony provides no rationalization whatever for his failure to note this "reason " when preparing Respondent's personnel form. His omission, really, suggests, contrary to Respondent's position, that the firm's present reliance upon Nail's purportedly poor appearance-regardless of whether or not such a judgment really would have been war- ranted-derives from transparent post hoc ra- tionalization merely. These considerations, reviewed and weighed within the context of management's total course of conduct, call for a conclusion that Respondent's presently stated reasons, proffered to justify Nail's discharge, merit characterization as pretextual. From this conclusion, certain inferences may, legiti- mately, be derived-namely, that management's "true motive" was a statutorily proscribed one, which Respondent partnership now desires to con- ceal. Cf. Shattuck Denn Mining Corp. v. N.L.R.B., supra. More particularly, determination seems war- ranted, consistently with General Counsel's conten- tion, that: On the basis of the record as a whole, Respon- dent's reasons appear to be an afterthought designed to conceal the true basis for Nail's discharge: Respondent's determination to remove any mechanic who would not join the Teamsters or who intended to join Machinists, in order to defeat the Machinists' majority status and evade the bargaining obligation. Reference has been made to Respondent's argu- ment that General Counsel's presentation will not sustain his contention, since the record purportedly fails to establish that Respondent's management had knowledge of Nail's decision to join Machinists while eschewing Teamsters membership. True, this record does not contain plain, forthright testimony warranting such a conclusion. However, several cir- cumstantial factors, within my view, will, indeed, support a determination that Manager Pack may be charged with knowledge regarding Nail's purpose. First: Notwithstanding a lack of direct evidence as to Respondent's knowledge, such knowledge may be deduced-since secrecy with respect to serious matters of general concern, within a small facility (consisting of one manager, two mechanics, and one tire service man), cannot realistically be main- tained-particularly when statements and conduct constituting statutorily protected activity have taken place within that small facility. Malone Knitting Company, 152 NLRB 643, 644, fn. 2, enfd. 358 F.2d 880 (C.A. 1); see A.P.W. Products Co., Inc., 137 NLRB 25; compare Perma Vinyl Corpora- tion, 151 NLRB 1679, 1681; Wiese Plow Welding Co., 123 NLRB 616. Second: Note should be taken that Nail declared his purpose not to seek Team- sters membership within a group which included the manager of the gasoline service station, located on Gemco property, directly adjacent to Respon- dent's Cupertino facility. Such a service station 354-126 O-LT - 73 - pt. 1 - 42 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager , within his own firm 's organizational struc- ture , would necessarily have been Pack 's hierarchi- cal "opposite " number, and managerial peer; frequent communication between them would be normal , and may be reasonably inferred . Third: The fact that Schetter had failed or refused to seek Teamsters membership had clearly come to Manager Pack 's attention; he was thereafter ter- minated . Sidam 's subsequent failure to join Team- sters was, likewise , followed by his separation within a short time . However, Yeske, Sidam's suc- cessor, concededly complied with Pack 's directive regarding Teamsters membership ; he has remained in Respondent 's hire . With matters in this posture, Nail's hurried and precipitate discharge may-in parallel fashion-be considered derived from Respondent 's presumptive knowledge or belief that his position regarding Teamsters membership was the same position which Schetter had taken, and which Sidam subsequently - took . Fourth: When a respondent firm has been "independently" shown to have some antiunion bias, which a discharge would gratify , deduction may be considered war- ranted that the firm's bias provided the "true" reason for a challenged termination . N.L.R.B. v. Malone Knitting Company, supra . Such a showing has been made herein . With matters in their present posture, therefore, I conclude and find that Nail's January 28 discharge derived , consistently with General Counsel's contention, from statutorily proscribed reasons. 5. Refusal to bargain a. The unit appropriate for collective bargaining General Counsel contends, herein, that all mechanics employed at Respondent 's Cupertino facility (excluding all other employees, guards, and supervisors , as statutorily defined) constitute a unit appropriate for the purposes of collective bargain- ing. Though Respondent has noted its denial, pro forma, there can be no doubt that such a "plant- wide" craft group-which also represents a residual group of previously unrepresented workers-con- stitutes a presumptively appropriate unit for collec- tive-bargaining purposes. Respondent 's presenta- tion provides no basis for challenging such a deter- mination. The group described-within my view- may properly be considered a workers ' group ap- propriate for collective-bargaining purposes , within the meaning of Section 9(b) of the statute. The fact that a conceivable two-center unit-en- compassing both San Jose and Cupertino center mechanics-might likewise be considered ap- propriate need give no pause . During their negotia- tions (which, within my view, never passed beyond a preliminary stage) the parties seem to have been discussing and considering a contract which would cover mechanics at both centers. However, Machinists initial bargaining demand-recapitu- lated within its counsel 's January 26, 1967, letter- requested recognition merely for the firm 's Cuper- tino mechanics . And General Counsel 's complaint herein, similarly, limits the group which Machinists presently claims to represent . With matters in this posture, the fact that a two-center unit might likewise be deemed appropriate cannot preclude the determination herein made. b. Machinists representative status There can be no doubt that Machinists represented all of Respondent's Cupertino center mechanics (Schwartz and Schetter ) following their October 5 , 1966, execution of membership applica- tions and designation cards; likewise, there can be no doubt that Machinists continued to be those mechanics ' majority representative thereafter, throughout the period of negotiation which fol- lowed. Respondent partnership-despite its present pro forma denial-never really proffered a timely challenge regarding Machinists representation claims. During their December 1, 1966, conversa- tion, General Partner Ratner raised no question with Business Representative Simmons regarding his organization's representative status. The record further warrants a determination that , during his several subsequent telephone conversations with Machinists business representative, General Manager Krupsaw conceded that organization's representation claims . The present record, there- fore, can provide no justification whatever for a claim that Respondent's management held any good-faith doubt regarding Machinists majority status. ( Krupsaw's request, during their January 11 telephone conversation, that Simmons send him photostatic copies of designation cards signed by Respondent's Cupertino center mechanics may reflect a belated try to determine whether some basis might be found for challenging Complainant Union's claim. Respondent's failure to raise any question previously , however, clearly undercuts whatever contention Respondent might presently wish to make that-by January 11 particularly- grounds for good-faith doubt had developed.) With matters in their present posture, I conclude and find that, since on or about October 5, 1966, and at all times thereafter, Machinists was entitled, and remains entitled , to claim recognition as the exclu- sive representative of Respondent 's Cupertino center mechanics. c. The refusal to bargain The record herein clearly reveals that collective- bargaining negotiations, bottomed upon Machinists telephonically proffered demand, were commenced between Respondent 's and Complainant Union's representatives. Some discussion-which I have found preliminary merely-took place during a December 1 meeting between Business Representa- tive Simmons and General Partner Ratner, func- tioning in Respondent 's behalf. The fact that this GLOBAL AUTOMOTIVE ENTERPRISES discussion concerned a limited number of contrac- tual proposals-with respect to which Respondent's management felt particularly perturbed-provides no basis for challenging their significance . Follow- ing a month 's hiatus-for which, presently, respon- sibility need not be determined-negotiations resumed, through a telephone conversation between Machinists business representative and Respondent 's general manager. Their January 11 discussion , previously noted, clearly persuaded General Manager Krupsaw that Machinists bargaining posture , regarding its chal- lenged workweek, hours of work, and premium pay proposals, might not be modifiable through negotia- tions . Respondent 's management, however, makes no contention-presently-that this January 11 conversation produced a full-fledged bargaining im- passe ; nor, upon the present record , would such a determination be warranted . Despite this, Respon- dent's management-possibly fearful of burden- some consequences , should Machinists prove stub- born with respect to these contractual proposals- sought escape from any further bargaining obliga- tion through a course of conduct calculated to de- feat Machinists majority status. The fact that Machinists representative did not, thereafter, specifically request further negotia- tions-or that General Manager Krupsaw did not, thereafter, specifically refuse to continue negotia- tions-cannot be considered consequential. The January 26 letter from Machinists counsel-re- gardless of its factual premises-clearly put Respondent on notice that the labor organization did not consider Schetter 's discharge sufficient to undermine its majority representative status. Respondent counsel 's January 30 reply, however, declared management's "belief" that no "proper situation for bargaining" then existed. That such a declaration, realistically viewed, constituted a refusal to bargain further can hardly be gainsaid. I so find. However, Respondent's position-since it must necessarily have been bottomed upon Schet- ter's discharge and successive replacement with two nonunion mechanics before January 30-cannot be considered, upon the present record, well founded. Discriminatory discharges calculated to destroy a majority representative 's status cannot wipe out a respondent firm's statutory duty to meet and bar- gain in good faith. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connection with the opera- tions described in section I, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY 643 Since I have found that Respondent engaged and continues to engage in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act. Specifically, conclusions have been reached, herein, that Respondent's management spokesmen told various Cupertino center mechanics that their prospect for continued work would be jeopardized should they fail or refuse to join Teamsters, or per- sist in their determination to designate Machinists their collective-bargaining representative. Likewise, determination has been made that Respondent's spokesmen contributed unlawful support to Team- sters, through repeated suggestions that workers within the job classification with which this case is concerned should join the designated organization, despite its consistent disclaimers regarding their representation. Since the conduct thus chargeable to Respondent's management clearly constitutes statutorily proscribed interference, restraint, and coercion, and reflects a contribution of support for Teamsters violative of law, my recommendation will be that Respondent be directed to cease and desist therefrom. Further, since I have found that Respondent vio- lated Section 8(a)(1) and (3) of the statute when Schetter and Nail were successively discharged, because of their participation in statutorily pro- tected conduct, my recommendation will be that Respondent be required to offer both of these work- ers immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing-should that prove neces- sary-any replacement worker or workers sub- sequently hired. (Respondent's Cupertino center, when these statutorily proscribed discharges took place, maintained a total crew complement which encompassed no more than two mechanics. There may be a possibility, therefore, that Schetter's rein- statement, presently, would provide Respondent, there, with a fully staffed mechanical department. If so, Respondent could not properly be required to give Nail, the second discriminatee, concurrent reinstatement-since he had been hired merely as Schetter's replacement, following the latter's dis- criminatory discharge-unless Respondent can be shown to have three or more mechanics working, presently, within the Cupertino center. Without such a showing, this Board, presumably, could do nothing more-with its limited remedial powers- than require Respondent to place Nail's name on the preferential hiring list, thus providing him with some prospect of future work, within the Cupertino center or some other Bay Area facility which Respondent currently maintains. Such will be my recommendation.) It will be recommended, further, 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Respondent be required to make each of these workers whole for any loss of pay he may have suf- fered as a result of the discrimination practiced against him , by the payment to each of a sum of money equal to that which he would normally have earned as wages from the date of his discriminatory discharge to the date of his reinstatement, or the date of his placement on Respondent's preferential hiring list, less his net earnings during such period. The backpay due each worker named should be computed on a quarterly basis, pursuant to the for- mula which the Board now utilizes. F. W. Wool- worth Company, 90 NLRB 289, 291-294; N.L.R.B. v. The Seven-Up Bottling Company of Miami, Florida, Inc., 344 U.S. 344, ff. And Respondent's obligation in this respect should include the obliga- tion to pay interest on whatever backpay may be found due the workers designated, computed at the rate of 6 percent per year, consistently with the pol- icy which the Board now follows. See Isis Plumbing & Heating Co., 138 NLRB 716, in this connection. My determination has been noted, previously, that Respondent's course of conduct reflects a refusal to bargain in good faith with Machinists herein. My final recommendation, therefore, will be that Respondent be required to bargain collective- ly, upon request, with the organization designated, and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW in the light of the foregoing findings of fact, and upon the entire record in this case, I make the fol- lowing conclusions of law: 1. Lawrence Cantor, Eddie Cantor, Fritz A. Nachant, Mark Ratner, David A. Block, and David Krupsaw, co-partners, d/b/a Global Automotive En- terprises, designated as Respondent herein, con- stitute an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, and Teamsters Automotive Workers Union, Local No. 576, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America are labor organizations within the meaning. of Section 2(5) of the Act which represent certain of Respondent's workers for collective-bargaining purposes. 3. Respondent's management spokesmen- through threats, directed to Cupertino center mechanics, that they would run the risk of discharge or diminished work prospects should they fail or refuse to join Teamsters , or persist in designating Machinists their collective-bargaining representative-have interfered with, restrained, and coerced employees in their exercise of rights statutorily guaranteed. Thereby Respondent did en- gage in and has continued to engage in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 4. Respondent's management spokesmen-by urging and soliciting Cupertino center mechanics to join Teamsters, despite consistent disclaimers proffered by representatives of that labor organiza- tion regarding their contractual representation of workers within the job classification designated- have interfered with, restrained, and coerced Respondent's employees in their exercise of rights statutorily guaranteed and contributed unlawful support to the labor organization named. Thereby, Respondent did engage in and has continued to en- gage in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (2) and 2(6) and (7) of the Act. 5. By discriminating with regard to the hire and job tenure of Eugene Schetter and Richard Nail because of their demonstrated support for Machin- ists, or their failure or refusal to join Teamsters pur- suant to Respondent's request, while its manage- ment pursued a course of conduct reasonably cal- culated to interfere with, restrain, and coerce these workers, together with others, in their exercise of statutorily guaranteed rights, Respondent did en- gage in and continues to engage in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. 6. All mechanics employed by Respondent at its Cupertino, California, operation, excluding all other employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 7. At all times material herein, subsequent to October 5, 1967, Machinists has been entitled to recognition as the exclusive representative of Respondent's Cupertino center workers within the unit described above, pursuant to the provisions of Section 9(a) of the Act, for the purpose of collec- tive bargaining with respect to rates of pay, wages, hours of work, and other terms and conditions of employment. 8. By its refusal to recognize or bargain with Machinists on January 21, 1967, or thereafter, Respondent has engaged in and continues to en- gage in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act. RECOMMENDED ORDER Upon these findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, order that Respondent, Global Automo- tive Enterprises , its copartners, agents, successors, and assigns, shall: GLOBAL AUTOMOTIVE ENTERPRISES 1. Cease and desist from: (a) Threatening workers with discharge or prospective losses of work because of their applica- tion for membership in, or their demonstration of support for, International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, or any other labor organization, or their failure or refusal to seek membership with some other labor organization. (b) Urging or soliciting workers to seek mem- bership with Teamsters Automotive Workers Union, Local No. 576, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organi- zation. (c) Discouraging membership in International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, or any other labor organization , by discharging workers or by discriminating in any other manner with respect to their hire or tenure of employment, or any term or condition of their employment, except as authorized under Section 8(a)(3) of the Act. (d) Refusing to bargain with International As- sociation of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, as the exclusive representative of all mechanics at Respondent's Cu- pertino, California, operation, exclusive of all other employees, guards, and supervisors as defined in the Act. (e) Interfering with, restraining, or coercing em- ployees, in any like or related manner, in connec- tion with their exercise of the right to self-organiza- tion, to form labor organizations, to join or assist International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, or any other labor organization, to bargain col- lectively through representatives of their own free choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Offer Eugene Schetter and Richard Nail im- mediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any pay losses which they may have suffered by reason of the discrimination practiced against them , consistently with the requirements and subject to the qualifications set forth within "The Remedy" section of this Deci- sion. (b) Notify Eugene Schetter and Richard Nail, 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 discharge from the Armed Forces. 645 (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Upon request, bargain collectively in good faith with International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, as the exclusive representative of all Respondent's employees within the unit found ap- propriate herein for the purpose of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment and, if an understanding is reached, em- body such understanding in a signed agreement. (e) Post at its place of business in Cupertino, California, copies of the attached notice marked "Appendix. "I Copies of said notice, to be furnished by the Regional Director for Region 20, after being duly signed by a representative of Respondent part- nership, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding 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. (f) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith .2 ' In the event that this Recommended Order is adopted by the 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 further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals 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, this provision shall be modified to read - "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Ex- aminer 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 threaten our employees with discharge or possible work loss because they have applied for membership in International Association of Machinists and Aerospace Workers , AFL-CIO, District Lodge No. 93, or because they have declared their support of that organization, or because they have failed 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or refused to seek membership with some other labor organization. WE WILL NOT urge or solicit mechanics in our employ to seek membership with Team- sters Automotive Workers Union, Local No. 576, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT discourage membership in In- ternational Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, or any other labor organization, by discharging employees or by discriminating in any other manner with respect to their hire or tenure of employment or any term or condition of their employment, except as authorized under Section 8(a)(3) of the Act. WE WILL NOT refuse to bargain with Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, as the exclusive representative of all mechanics at our Cupertino, California, center. WE WILL NOT interfere with , restrain, or coerce our employees, in any like or related manner, in their exercise of rights guaranteed by Section 7 of the Act. WE WILL offer Eugene Schetter and Richard Nail immediate and full reinstatement to their former positions or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and we will make them whole for any pay losses they may have suffered by reason of the discrimination prac- ticed against them. WE WILL, upon request, bargain collectively in good faith with International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, as the exclu- sive representative of our Cupertino center mechanics and, if an understanding is reached, embody such understanding in a signed agree- ment. GLOBAL AUTOMOTIVE ENTERPRISES (Employer) Dated By (Representative ) (Title) Note : We will notify the above-named em- ployees 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 discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced , or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue , Box 36047 , San Francisco , California 94102, Telephone 556-0335.