Jacobe-Peason Ford, Inc.

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jacobe-Pearson Ford, Inc. and Lodge 744, District 37, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 23-CA-2705 June 27, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 29, 1968, Trial Examiner Maurice S. Bush issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and , finding merit in the exceptions of Respondent, hereby adopts the findings, conclusions , and recommendations of the Trial Examiner only to the extent consistent herewith. The Trial Examiner concluded that Respondent violated Section 8(a)(5) and (1) of the Act by denying union representation to employee Clarence Motes at a scheduled meeting with management on May 5, 1967.' The meeting was to have dealt with Motes' refusal to accept a job assignment the day before. The Trial Examiner held that Motes was en- titled to representation under the Act on the ground that he faced "potential" discipline in the meeting . The Examiner believed the facts here to be "essentially the same" as those of Texaco, Inc., 168 NLRB 361, where violations were found. We do not agree. The record shows that Motes turned back a tail- light repair job which was received about 5:25 p.m. on May 4. But it is not clear how company rules ap- plied to Motes' action, and Respondent refrained from making an immediate disciplinary judgment. Thus, company rules specified employee quitting time as 5:30 p.m., "unless there is a job to be done and completed by 6 P.M." There was no "promis- ed" time indicated on the ticket for this job; and Motes, estimating 45 to 60 minutes of work,2 ap- parently felt justified in declining to take a job ex- tending beyond 6 p.m.3 The nex day, Motes discovered that his timecard was pulled, which, in the minds of employees, generally signaled discharge . However, the record does not in fact establish that this general feeling accurately reflected Respondent's practice. Thus, only two specific instances of discharge following a pulled timecard were cited; and Motes admitted that no one in management had told him of such a practice. According to Service Manager Sherwood, a pulled timecard signifies only that management wants to talk to the employee. It also appears that Motes ' supervisor failed to dispose of the matter himself that morning, but kept Motes waiting and indicated the company pre- sident was on the way. While this conduct may have looked ominous to Motes, it does not follow, of course, that Respondent had already definitely committed itself to a disciplinary course of action. That there was no preinterview decision to discharge Motes was an assurance communicated to the Union by Respondent's Service Manager Sherwood and by its Attorney Ford. Ford told Union Representative O'Neal that: ... on the basis of what the company knew at that time, that the company was not planning to discharge the man but that if the man revealed some additional facts, such as, he had deliberately left and didn't care whether the company had a problem serving its customers or something like that, it might be necessary to re-evaluate our position.4 Ford also advised O'Neal that the Union would be informed of any disciplinary decision reached, and, if the Union was dissatisfied, it could take the matter to the bargaining table. All these facts, and the record as a whole, establish to our satisfaction that, when Motes was invited to meet with management alone on May 5, Respondent had not reached any decision to ' Consequently , the Trial Examiner found an employee walkout on May 5 to be an unfair labor practice strike 2As it turned out, the job took 40 minutes for another mechanic aided by the service writer 3 However , the record also shows that Motes had worked beyond 6 p.m on some 21 occasions during the preceding 19 weeks. ' Ford's unwillingness at the time to provide any "blanket immunity" from discharge does not , in our view , detract from his information -seeking explanation for the meeting with Motes Respondent's evidence is that Ford alone was vested with making discharge decisions, though it does not appear whether this fact was known to the employees or the Union 172 NLRB No. 84 JACOBE-PEARSON FORD, INC. discipline him. Rather, the facts show that Respon- dent was investigating the events of the day before and was seeking Motes' version thereof. It promised to explain to his bargaining representative any deci- sion reached as a result of the meeting, and to pur- sue the matter further at the bargaining table. The "potential" for disciplinary action was remote and the purpose of the meeting essentially for the gathering of information. We find that, in view of the absence of any definite adverse action taken on Motes and Respondent 's willingness to explain and bargain with the Union any disciplinary decision made, Respondent did not breach any statutory obligation in denying union representation to Motes at the factfinding meeting of May 5.1 Accordingly, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be , and it hereby is, dismissed in its entirety. "See Chevron Oil Company, 168 NLRB 574. Texaco Inc Houston Producing Division , 168 NLRB 361, upon which the Trial Examiner relied, presented facts which were distinguishable from those herein TRIAL EXAMINER'S DECISION MAURICE S. BUSH , Trial Examiner: The central issue in this case is whether Respondent, a Ford Motor agency , is in violation of Section 8(a)(1) and (5) of the National Labor Relations Act for its refusal to allow employee Clarence E. Motes, both at his request and that of the Union, to have the Union represent him at a meeting with management to which he had been summoned for interrogations on his work performance of May 4, 1967, under all the circumstances of record herein. The second issue herein is whether the strike called and still in progress because of Respondent's refusal to allow Motes to have union representation at the meeting to which he was summoned is an unfair labor prac- tice strike. The complaint was issued on September 14, 1967, pursuant to charges duly filed by the Union. The answer to the complaint, as modified by stipu- lations at the trial , raises issues only with respect to the unfair labor practices charged by the complaint. The case was tried at Houston, Texas, on November 29 and 30, 1967. Briefs were duly filed by General Counsel and Respondent on January 15 and 17, 1968, respectively. These have been care- fully reviewed and considered. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 595 Respondent Jacobe-Pearson Ford, Inc., a Texas corporation, is engaged in the business of the retail sale of Ford automotive products and service at Houston, Texas, where it maintains its principal of- fice and place of business. During the 12 months prior to the issuance of the complaint, which is a representative period, Respondent derived gross revenue from the sale of Ford automotive products and the service of such products in excess of $500,000 and has purchased goods valued in excess of $50,000 from points outside the State of Texas which were shipped directly to Respondent's place of business in Houston . The Company is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Lodge 744, District 37, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Respondent employs approximately 65 em- ployees in its authorized Ford service and parts de- partment at its Houston place of business. The pleadings establish that these employees, consisting of mechanics, body, paint, and lubrication men, parts clerks, helpers, and porters, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(a) of the Act. On December 7, 1966, the Company polled the employees in the above-described unit to determine if they desired to be represented by the Union here involved. As a result of a majority vote in favor of the Union, the Company on January 17, 1967, signed a "Recognition Agreement" with the Union which designated the Union as the sole and exclu- sive bargaining representative of the employees in the unit. Between January 17 and May 5, 1967, the critical date herein, the Company and the Union met some 10 times in bargaining sessions, but up to the trial of this matter no contract had been reached by the parties. Respondent's agents and supervisors at the times here pertinent have been S. J. Sherwood, its busi- ness manager; Thurman Ellis "Red" Jones, its general manager, and Tommy Barnes, its service manager. Of these three individuals, only Sherwood testified in this proceeding. Under the Company's posted rules, the working hours for its shop employees in the involved unit are from 8 a.m. to 5:30 p.m. "unless there is a job to be done and completed by 6:00 P.M." At 5:25 p.m. on May 4, 1966, or 5 minutes be- 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore the regular quitting time for mechanics, Dispatcher John J. Bennie assigned the replace- ment of a broken taillight on a European manufac- tured Ford Cortina to the aforementioned Clarence Motes, an employee of some 2 years' standing and a union member . Bennie estimated the job would take 5 minutes. The Ford service manual gives an estimated time of 18 minutes for the job; the evidence shows that repair jobs sometimes take more or less time than the manual 's estimated times. Motes, after drawing the parts for the job, ob- served that the replacement could not be made from the outside but would have to be made from the inside and would require both the removal of the spare tire and taillight housing from the luggage compartment. Motes, an experienced mechanic with an established reputation for being a fast worker, estimated that the job would take from 45 to 60 minutes to complete and that this would take him beyond the Company's 6 p.m. deadline for the termination of the workday. The ticket order on the job showed no "promised" time for the completion of the job in the space allotted for such showing. Motes returned the ticket to Dispatcher Bennie with the remark that he could not finish the job by 6 p.m. and suggested to him that he get someone else, perhaps a salaried man, to do the job if the repair had to be completed that day, but told Bennie that he had arranged with a porter to do the job, if that was satisfactory. Bennie accepted the return of the taillight job without question or argument, and Motes clocked out for the day. Instead of having the porter do the job, Bennie returned the service ticket on the car to Charles Castleberry, the service writer who had received the car from the owner and had written up the taillight replacement order. At 5:35 p.m. Cas- tleberry asked Sam McDaniel, another mechanic in the shop, if he would "help him fix the car." Mc- Daniel , already in his street clothes and ready to clock out, agreed. McDaniel discovered that Motes had drawn a lens for the wrong side of the car. While Castleberry went to the parts department to exchange the lens for the right side , McDaniel com- menced work on the car . This involved removing the spare tire and cardboard cowling inside the lug- gage compartment held in place by a half dozen screws, and finally the entire taillight assembly it- self. The removal of the latter required the grinding out of several rivets before the new lens could be installed . Although Castleberry assisted McDaniel, most of the work was done by the latter . McDaniel testified that he finished the job some time between 6:30 and 6:45 p.m. However, McDaniel's timeclock card shows that he punched out at 18.3 which by stipulation the parties agree means a punch out ' Castleberry 's service ticket on the car shows that he received the car at 5 20 p in of the day here in question or 10 minutes before the normal 5 30 p in quitting time for shop employees sometime between 6:12 and 6:18 p.m. The Ex- aminer finds and concludes from the above evidentiary facts that McDaniel clocked out at 6:15 p.m., give or take a minute or two, or some 40 minutes after he started the job with the assistance of Castleberry. During the time McDaniel was making the tail- light replacement in the presence of Castleberry, Service Manager Barnes approached Castleberry and asked him what the trouble was. Castleberry explained that he had received the taillight job in the late afternoon,' but had not realized it would take so much time until he heard that Motes had turned the job back because he estimated that he couldn't finish the job before the end of the max- imum prescribed workday, to wit, 6 p.m.2 Barnes telephoned Respondent's Service Man- ager Sweeney at his home to report the incident of Mote's turnback of the job. Sweeney in turn telephoned Business Manager Sherwood at the shop to inform him of the Motes incident. Sher- wood instructed Sweeney to pull Motes' timecard. There is circumstantial evidence that Barnes had already pulled Motes' card immediately after he had learned from Castleberry that Motes had re- turned the taillight job to the dispatcher because he didn't think he could finish it by 6 p.m. The next morning on reporting to work, Motes found his timecard missing from the rack. He sought out Barnes to determine the reason for his missing card. Barnes informed Motes that he wanted to discuss something with him and instructed him to wait for him in his (Barnes') office until he was ready to see him. After waiting for some 20 minutes, Motes looked up Barnes in the shop and asked if he was ready to see him. Barnes explained that the delay was due to the fact that they were waiting for Robert Pearson, the president of the Company and owner of the building, before Motes could be talked to. Barnes reinstructed Motes to wait for him in his office. Instead Motes looked up two of his fellow mechanics , Union Committeemen Frank Glidden and David Marrs, had coffee with them , and informed them that his timecard had been pulled , and that Barnes had asked him to wait for him in his office but had not disclosed what he wanted to see him about. Following the cof- feebreak, Barnes spotted Motes and indicated to him that he was to go to Business Manager Sher- wood's office. At this point, Motes told Barnes that he was a union member and requested that Glidden and Marrs be allowed to accompany him as his union representatives at the interview with Sher- wood. Barnes declined the request on the ground that management wanted to see Motes on a per- sonal matter and that it did not concern anybody else. Alternate Committeeman Herbert Cornelius, ' The findings shown in the above paragraph are based upon the uncon- tradicted testimony of McDaniels who overheard the conversation between Castleberry and Barnes Castleberry did not testify at the trial JACOBE-PEARSON FORD, INC. another mechanic, overhearing the conversation, took issue with Barnes, and asserted "that it was not a personal matter, because we were a union shop now." Glidden and Marrs requested of Barnes that they be allowed to accompany Motes for his interview with Sherwood, pursuant to Motes' request. Barnes similarly denied their requests and instructed them to either return to work or clock out. They refused to do either. By this time most of the service department employees, having been made aware of what was going on, quit work and gathered in a *roup in the shop to discuss the matter. Up to this point, no one in management had told Motes or anyone else in the unit why Motes was being summoned to Sherwood's office, but the evidence shows that Motes and the employees in the shop apprehended that Motes was being called in for discipline in connection with the taillight job that he had turned back late in the preceding day for the reasons heretofore stated. Committeeman Glidden has had 21 years of em- ployment with Respondent. His testimony, based on his observations during this period of employment, establishes that the pulling of an employee's timecard generally signifies that the employee is to be discharged, except where the card is missing from the rack on a Thursday which is payday and in that event the absence of a card from the rack is generally an oversight on the part of the paymaster in failing to return the card to the rack after making up the payroll. Motes' card was missing from the rack on a Friday, May 5. Motes was aware of the tradition in the shop that the pulling of a timecard on a day other than payday signifies a discharge. Motes feared that the pulling of his card coupled with the notice that he was to see Business Manager Sherwood augured his discharge. Union Commit- teemen Glidden and Marrs and the other mechanics in the shop also believed that the pulling of Motes' timecard meant that he was in danger of losing his job. Barnes reported to Sherwood that Motes declined to see him unless he had union representa- tion. As Barnes was conveying this information to Sherwood, Sherwood saw through the window of his office that many of the service employees had quit work and were gathered in a group close to his office. Sherwood picked up the telephone and re- ported the situation to Mr. Pearson, Respondent's president, and then, on instruction, placed a long- distance telephone call to Respondent's counsel, William F. Ford, at his Atlanta law office but was unable to reach him immediately because he was out of town.3 Shortly thereafter J. R. O'Neal, the Local's busi- ness representative, Bill Wolf, a grand lodge representative, and a Mr. Hensley, union counsel, ' Mr. Ford was one of Respondent 's counsel at the trial of this case He testified as to his negotiations with the Union with respect to the union de- mand that Motes be allowed union representation Mr Motes very properly refrained from participating at the trial as counsel for Respondent 597 arrived at different times at Respondent's place of business, in response to a call that there was a union problem there. Of these persons only O'Neal testified at the trial herein. Upon arrival, O'Neal noted that the service department employees were in a group near Sherwood's office and that Wolf and Sherwood were close by. The record shows that Sherwood at first declined to talk to O'Neal or Wolf, but eventually spoke to them and Hensley. Upon inquiry from O'Neal as to what the problem was with Motes, Sherwood explained that Motes' card had been pulled because management wanted to speak to him about his failure to stay and complete the taillight job of the previous day. This was the first disclosure on the part of anyone in management to the service department employees as to why Motes was being summoned to see Sher- wood although, as heretofore indicated, Motes and his fellow workers suspected that this was what management had in mind. At these informal conferences with the union representatives, Sherwood asserted the Company's right to interview Motes alone about the taillight in- cident without the presence of union representa- tives at the interview. When asked by the union spokesmen about the possibility that Motes might be discharged, Sherwood denied that there was any preinterview decision to fire Motes at the interview. But when the Trial Examiner inquired whether any- one in management at that particular time gave as- surance to O'Neal or Motes that Motes would not be fired, Sherwood replied: "No, sir, Mr. Ford is our spokesman for matters pertaining to labor." At the time Sherwood first talked to O'Neal which was somewhere around 9:30 a.m. on May 5, 1967, Sherwood had not yet had a response to the long- distance call he had placed to Mr. Ford, Respon- dent's attorney. A few minutes later Ford returned Sherwood's telephone call. In all he spoke to Sherwood and O'Neal over the telephone some three or four times that morning and early noon. Prior to and during the course of these telephone conversations, most of the employees in Respon- dent's service department had quit work and were standing in a group waiting for a resolution of the Motes' problem. The first time Ford called, he spoke to Mr. Pearson, Respondent's president, as well as Sherwood, before he asked to speak directly to Union Representative O'Neal. Ford testified at length at the trial as to what was said in these telephone conversations with O'Neal and as to the authority he had to handle Respondent's labor problems. Ford's testimony shows that sometime prior to the Motes' taillight incident Respondent had given Ford complete authority to decide whether any of its employees were to be with respect to the negotiations he carried on for Respondent with respect to the Motes' incident. Mr. Bacheller, cocounsel for Respondent, han- dled this aspect of Respondent's case at the trial. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged, but his testimony also shows that this arrangement was completely unknown to any of the employees or union representatives prior to the time Ford spoke to O'Neal over the telephone that morning. In these telephone conversations with Ford, O'Neal requested permission for union repre- sentation for Motes pursuant to his request at the interview wanted by the Company with Motes concerning the taillight job because of the fear that the interview might affect Motes' terms and con- ditions of employment. Ford rejected the request and asserted the right of the Company to interview Motes alone as a management prerogative in the course of the day-to-day operation of its business. O'Neal then asked for permission for a union representative to be merely present but com- pletely silent at the interview in order to give Motes the protective benefit of a union witness as to what went on at the interview in the event he was later falsely charged with saying something at the inter- view he didn't say adverse to his employment rights. Ford likewise refused this request. With respect to the fear expressed by Motes and his fellow workers that the interview the Company wanted with Motes might result in the loss of his job, Ford's testimony at the trial shows that he told O'Neal in his telephone conversations with him that morning, "that the company was not planning to discharge Motes, that the company simply had a desire to speak with the man, but thus far has been unable to do this because they couldn't get him to come in without the steward being present." How- ever, Ford's testimony also shows that he "cau- tioned" O'Neal "not to go out though and say we [Respondent] were granting Motes a blanket im- munity against discharge because that would not be accurately reporting what I said." Ford's testimony also reveals that he also told O'Neal that although the Respondent on the basis of the information it had prior to the requested interview with Motes was not planning to discharge him, if it developed at the interview that Motes "revealed some addi- tional facts, such as, he had deliberately left and didn't care whether the company had a problem serving its customers or something like that, it might be necessary to reevaluate our position." The telephone conversations between Ford and O'Neal ended in an impasse, with Ford asserting and insisting upon the right of the Company to speak to Motes alone and without union represen- tation about the taillight incident as a managerial prerogative in the day-to-day operation of its busi- ness, and with O'Neal asserting and demanding the right of union representation for Motes at the inter- view pursuant to his request because of the ap- prehension and anticipation on the part of both Motes and the Union that the interview could result in his discharge or some other disciplinary action. At this juncture Ford requested O'Neal "to go out and ask the employees if they were not going to work, to leave the premises." Upon O'Neal's refusal to comply with this request, Respondent's General Manager "Red" Jones at or about .1:30 p.m. addressed the service department employees who had stopped work because of the Motes' in- cident and ordered them to either go to work or leave the premises. Upon receipt of this ultimatum, 34 employees of the unit retired to a union hall where they voted unanimously by secret ballot to strike in support of Motes' demand for union representation at the in- terview with management personnel to which he was being summoned because of their apprehension that the interview could result in his discharge or other disciplinary action affecting the terms and conditions of his employment. The strike and picketing commenced on the same day, May 5, 1967, and was still in progress at the time of the trial herein in late November 1967. Motes par- ticipated in the strike and picketing until he took employment elsewhere. The interview the Respon- dent wanted with Motes has never taken place. Discussions and Conclusions As noted in the opening paragraph of this Deci- sion, the central issue in the case is whether the Company is in violation of Section 8(a)(1) and (5) of the National Labor Relations Act for its refusal to allow employee Clarence E. Motes, both at his request and that of the Union, to have the Union represent him at the meeting with management to which he was summoned for interrogation on his work performance of May 4, 1967, under all the circumstances of the case. Respondent has more graphically telescoped the central issue into the question of "whether or not the proposed conversa- tion between Management and Motes was an effort on the part of the Company to deal with Motes on a matter affecting terms and conditions of employ- ment to the extent that a Union representative had a right to be present?" The discussion below will address itself to the issue as stated by Respondent. Section 9(a) of the Act provides that, "Representa- tives designated or selected for the purposes of col- lective bargaining by the majority of the employees in a unit for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment ...." The guideline case on this issue is the Board's recent decision in Texaco, Inc., Houston Producing Division, 168 NLRB 361, which came to the atten- tion of all counsel herein prior to the trial of this matter. In that case the Board held that the deter- mining factor in situations such as here present is whether an employee is being called into a con- ference by management on "matters affecting his terms and conditions of employment." Under the facts in that case the Board found the Texaco com- pany had called in the employee therein involved JACOBE-PEARSON FORD, INC. 599 for a conference on matters affecting his terms and conditions of employment and, therefore , held that Texaco's refusal to grant the employee's request for union representation at the conference was a viola- tion of both Section 8(a)(1) and (5). Counsel for General Counsel contends that the Texaco case is controlling here because the Respon- dent herein , as was true of the employer in the Tex- aco case , was seeking to have an employee ( Motes) provide Respondent with adverse information on matters which could result in his discharge or otherwise seriously affect the terms and conditions of his employment. Counsel for Respondent, on the other hand, con- tends that the Texaco case has no application to the instant case because of what it deems an important factual difference in the two cases in that in the present case, unlike the Texaco case , the meeting the Respondent wanted with the employee Motes never took place and thus the question of "whether or not the proposed interview with Motes was an effort to deal with him concerning the terms and conditions of employment can never be established with any certainty." Respondent also contends that its proposed inter- view with Motes under the evidence of record falls into the category of "ordinary conversations between Management and employees " which "do not require the presence of the Union." However, Respondent acknowledges that there can be "spe- cial circumstances" under which an employee is called in for a conference which would entitle the employee to union representation and concedes that "in this case, the Trial Examiner must decide if Motes' terms and conditions of employment were in such jeopardy as to justify relieving other work- men [Union committeemen Glidden and Marrs] when the Company talked to him or delaying talk- ing until a nonemployee representative [ union busi- ness agent] could arrange to be present." In the Texaco case the Employer scheduled a meeting in connection with its investigation of an alleged theft of a can of kerosene by one of its em- ployees. The employee, who had already been suspended without pay for the alleged theft, was in- vited to appear and defend himself at the meeting. The union intervened and requested the right to represent the employee at the meeting. The em- ployer denied the request. The employee neverthe- less appeared at the scheduled meeting where at the outset he requested union representation. Upon the denial of his request , the employee submitted to questioning by company officials. As a result of the employer's investigation , the employee was suspended without pay for a period of a little over 16 working days . The Board found that the em- ployee was not invited to attend the meeting solely to provide the company representatives with infor- mation concerning the alleged theft as the facts with respect thereto had become known to com- pany representatives 2 weeks earlier , but rather to provide a record to support disciplinary action, if deemed appropriate. Accordingly, the Board held that Texaco at the meeting "sought to deal directly with [employee] Alaniz concerning matters affect- ing his terms and conditions of employment" without the requested union representation which it found to be a violation of both Section 8(a)(1) and (5) of the Act. The situation in the instant case is essentially the same except that in the Texaco case the meeting with the employee actually took place although without the requested union representation whereas in the instant case Respondent never succeeded in having its meeting with Motes because of his refusal to come to the meeting without union representa- tion and Respondent's refusal to see him except alone. The Trial Examiner is of the opinion that this noted difference is immaterial to the central question of whether Motes was being summoned to a meeting which could affect the terms and condi- tions of his employment. In the instant case as in the Texaco case, the in- vestigation into the suspected misconduct of the in- volved employee had already taken place and the essential facts with respect thereto were well known to Respondent prior to the time Motes was sum- moned for a meeting with its business manager, Sherwood. These facts are that the Company's own posted rules provide for a workday of 8 a.m. to 5:30 p.m., "unless there is a job to be done and completed by 6:00 P.M."; that the taillight job here in question came in at 5:20 p.m. as is shown on the service ticket (G.C. Exh. 5); that Motes did not receive the car for the repair until 5:25 p.m. (Motes' testimony on this is undisputed); that Motes had estimated that the job would require him to work beyond 6 p.m.; that he had turned the job back to Dispatcher Bennie , who accepted the return without argument or questioning; and that the mechanic who agreed to take the reassignment of the job required until 6:15 p.m., or some 40 minutes, to complete the job with some assistance from Ticket Writer Castleberry. Under these circumstances with all the essential facts concerning the taillight job already in the pos- session of management at the time his card was pulled, Motes had reason to believe as the record shows that the pulling of his card augured possible discharge or other disciplinary action for him because of his turnback of the taillight job the night before. The record makes it clear that the events which occurred after he found his timecard missing could only enhance rather than reduce his fear that his job was in jeopardy. If an ordinary reprimand was in order for the taillight incident, it would nor- mally have come from Barnes, Motes' immediate supervisor. Instead Barnes gave Motes no inkling as to why his card had been pulled, but instead directed Motes to wait for him in his (Barnes') of- fice. It was only after Motes had waited for some 20 minutes that Barnes informed him that the delay in 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD getting to Motes about the reason for the pulling of his card was due to the fact that the supervisory personnel was awaiting the arrival of Respondent's president before Motes was to be spoken to. This, together with the fact that the latter was later directed to the office of Respondent's business Manager , Sherwood, could and did only compound his fear that the meeting that he was being called to would affect the terms and conditions of his em- ployment. In addition and even more importantly Motes also knew from conversations with long -term em- ployees in Respondent's employment that the pulling of an employee's timecard on a nonpayday usually meant that the employee was to be discharged. Sherwood in his testimony admitted that he could offer no guarantee to the union representatives at the time they demanded union representation for Motes that Motes would not be discharged at the meeting in his office to which he was being summoned , but instead told the union representatives that the ultimate decision as to whether Motes would be discharged would be up to Mr. Ford as Respondent's attorney. Mr. Ford's testimony makes it abundantly clear that Motes was , indeed , in potential jeopardy of los- ing his job at the management meeting to which he had been summoned. Ford's testimony shows that although in the long-distance telephone con- ferences he had with Union Agent O'Neal in the morning of May 5, 1967, he sought to give as- surances that Respondent had no then -present plan or intention of discharging Motes at the meeting to which he had been called, he put the Union on sharp notice that he was not granting Motes "blan- ket immunity against discharge " and that the Com- pany reserved the right "to reevaluate our position" In the event developments at the proposed meeting with Motes showed that "he had deliberately left and didn't care whether the company had a problem serving its customers or something like that." He made this reservation despite the fact that it was already then known by management that Motes did not leave the Company in the lurch on the taillight job but had arranged for a porter to complete the job and had notified the dispatcher of his return of the job because of the time element in- volved and had received no objection from the dispatcher. The Trial Examiner finds and concludes from the entire record that the meeting to which Respondent summoned Motes on May 5, 1967, was called for the purpose of dealing directly with Motes alone and without union representation on matters poten- tially affecting his terms and conditions of employ- ment, despite the fact that the employees in the in- volved unit had selected the Union to deal with the Respondent on such matters and the fact that Motes had requested union representation at the proposed meeting and the further fact that the Union was asserting the right to represent Motes at the meeting pursuant to his request . Accordingly, the Examiner further finds in the circumstances here that Respondent's refusal to honor Motes' request that the bargaining representative be per- mitted to represent him at the meeting interfered with and restrained him in the exercise of his rights guaranteed by Section 7 of the Act. The Examiner further finds that in view of Motes' request for union representation at the meeting and the Union's urgent and repeated requests to the Com- pany that it be permitted to represent Motes at the said meeting, Respondent's refusal to deal with the Union at the proposed meeting, and Respondent's insistence upon dealing directly with Motes on mat- ters potentially affecting the terms and conditions of his employment transgressed Respondent's statu- tory obligation to bargain with the Union on such matters. It is accordingly found that the Respon- dent by the above conduct violated Section 8(a)(I) and (5) of the Act. The Trial Examiner further finds and concludes that the strike on the part of the members of the unit here involved which commenced in the after- noon of May 5, 1967, and was still in progress at the time of the trial herein, resulted from Respon- dent's unlawful refusal to allow Motes, pursuant to his request and that of the Union, to have union representation at the meeting to which he had been summoned with Respondent's management in the morning of the same May 5 for questioning on an alleged dereliction of duty which could potentially affect the terms and conditions of his employment with Respondent. Accordingly, the Examiner finds and concludes that the said strike is and at all times has been an unfair labor practice strike. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in sec- tion III, above, occurring in connection with Respondent 's operations described in section I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectu- ate the policies of the Act. Although it has been found that Respondent un- lawfully denied the request of Motes for representa- tion by the Union and refused to deal with the Union at the proposed meeting of May 5, 1967, to which Motes had been summoned for questioning JACOBE-PEARSON FORD, INC. 601 concerning an alleged dereliction of duty which could potentially lead to his discharge or other disciplinary action , the Trial Examiner is of the opinion that an affirmative order requiring the abortive meeting to take place with union represen- tation for Motes would not serve any useful pur- pose at this time, as it is unrealistic to expect that Respondent would have any present interest in speaking to Motes about the now ancient and stale taillight incident or that Motes who has quit the picket line and has employment elsewhere would now be willing to subject himself to such a meeting, even with union representation . It is noted that counsel for General Counsel does not request such an order in his brief. Under the circumstances of this case , the Ex- aminer believes that Motes and all other employees in the unit will be fully protected by an order requiring the Respondent to cease and desist from: (1) refusing any employee permission to have the Union or any other labor organization present at any meeting convened by Respondent in which the employee is questioned about, or required to de- fend himself against, his alleged misconduct in the course of his duties , where the employee requests representation at such meeting, and (2) refusing the Union or any other labor organization permis- sion to attend any meeting and to represent any employee at such meeting, where the purpose of such meeting is to question the employee about or to require him to defend himself against his alleged representation at the meeting by the Union. Such an order substantially follows the cease-and-desist order in the aforementioned guideline case of Tex- aco, Inc., Houston Producing Division , supra. For these reasons, such an order will be recommended herein. As it was found above that the strike which the Union called on May 5, 1967, was an unfair labor strike, it will accordingly be recommended, in order to effectuate the policies of the Act, that the Respondent be ordered, upon unconditional request therefor , to reinstate all unfair labor prac- tice strikers, including Motes, to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing , if necessary , any employees hired to replace the striking employees on or after May 5, 1967, the day the strike began . It will be further recommended that the Respondent be ordered to make whole each such striker for any loss of pay he may suffer as a result of any refusal to reinstate him upon application for such reinstatement. Backpay, if any, is to be compted in accordance with the for- mulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Under the combined recommended orders herein , Motes, if he desires his old job back with Respondent , may be subject to questioning under union representation with respect to the taillight in- cident of May 4, 1967, if Respondent still desires and requests a meeting with Motes for such pur- pose. In the absence of a collective-bargaining agree- ment affecting Respondent's right in the routine day-to-day management of its business to talk to any employee about his work performance alone and without union representation, the recom- mended order herein is not intended to interfere with such a right where such talk with the employee does not have a reasonable potential for affecting the terms and conditions of his employment, as it did in the present case. Upon the basis of the foregoing findings of fact and upon the entire record of the case, the Ex- aminer makes the following: Conclusions of Law 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. All mechanics, body, paint, and lubrication men, parts clerks, helpers and porters, employed in the service, parts, and body departments of the Respondent's Houston, Texas, location constitute a unit appropriate for purposes of collective bargain- ing within the meaning of Section 9(a) of the Act. 3. On December 7, 1966, a majority of the em- ployees of Respondent in the above-described unit by secret ballot designated and selected the Union as their representative for the purposes of collective bargaining with Respondent and thereafter on January 17, 1967, Respondent executed a Recogni- tion Agreement, in which it recognized the Union as the sole and exclusive bargaining representative of all the employees in the unit with respect to wages, hours of work, and other conditions of em- ployment. 4. By reason of the above, the Union at all times here material has been the exclusive representative, for the purpose of collective bargaining within the meaning of Section 9(a) of the Act, of all of the employees in the aforesaid appropriate unit. 5. By refusing, on the specific requests of both employee Clarence E. Motes and the Union, to per- mit Motes to have a union representative present at a meeting to which Respondent had summoned Motes on May 5, 1967, for questioning concerning an alleged dereliction of duty which could have resulted in his discharge or other disciplinary ac- tion, Respondent did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing, its employees in the exercise of the rights guaranteed in Section 7 of the Act and has thereby engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By refusing to allow the Union to represent Motes pursuant to his request at the meeting to which he had been summoned by its supervisors as described in the paragraph next above, Respondent 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has refused and is refusing to bargain collectively in good faith with the Union as the exclusive bargain- ing representative of all the employees in the above-described unit and has, and is, thereby en- gaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. The strike which commenced on May 5, 1967, was caused by Respondent 's above-described unfair labor practices, and hence has been at all times here material an unfair labor practice strike. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and ( 7) of the Act. [Recommended Order omitted from publica- tion. ]