Steve Aloi Ford, Inc.

STEVE ALOI FORD 229 Steve Aloi Ford, Inc. and International Association of Retail Automobile Salesmen and Servicemen, (Ind)' Steve Aloi Ford , Inc. and Bradford J. Kohler. Case 3-CA-3653 and 3-CA-3679 October 21, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On June 30, 1969, Trial Examiner John F Funke issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel The Board has reviewed the rulings of the Trial Examiner made at the hearing, and, except as noted below,' finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications: 1 The Trial Examiner concluded that sales manager Dilling's interrogations of employees Wade and Cleveland were casual and isolated and did not warrant a finding of a violation of Section 8(a)(l). We disagree with this conclusion Dilling asked Wade how many people were in favor of the Union and called Cleveland into his office to ask if Cleveland liked working there and what he thought of the Union. These interrogations were not merely isolated casual incidents, but considered in The name of the labor organization appears as amended at the hearing At the hearing, the General Counsel offered in evidence a letter dated January 8 , 1969, from Respondent's counsel to the Regional Director explaining the reasons for Stevenson's, McDonald's, and Parris' discharges This letter was written after Respondent had been informed by the Regional Director of the filing of the Union's unfair labor practice charges It is well settled that the admissions of an attorney in the management of litigation are admissible against the client N L R B v Pacific Intermountain Express Company , 228 F 2d 170, 175 (C A 8), cert denied 351 U S 952, Ablon Poultry & Egg Company . 134 NLRB 827, fn 1 4 Wigmore, Evidence, section 1063 , 1078 (3d ed 1940 ) Accordingly, we overrule the Trial Examiner and hereby receive this letter into evidence as G C Exh 6 conjunction with Respondent's overall course of unlawful conduct, were inherently such as not only to have a coercive impact on the employees interrogated but also such as to make it likely they would be communicated to others, thus expanding their coercive effects.' 2. We disagree with the Trial Examiner's finding that there was no implied promise of benefit in Dilling's remark to Van Allen on January 23, 1969, that it was a shame the Union was coming in because the dealer's association had a new retirement plan coming out, but that he could not talk about it "right now." In the context of Respondent's threats and its demonstrated antiunion attitude, the message carried by this statement made I week before the election, is clear. if the employees did not select the Union in the oncoming election, they would be rewarded by a new retirement plan. Such an implied promise of benefit is violative of Section 8(a)(1). 3. We find, contrary to the Trial Examiner, that the Respondent violated Section 8(a)(3) when it discharged employees Stevenson and McDonald. Both were active Union adherents and openly solicited employee signatures for the Union on several petitions, one of which was turned over to them for completion by Kohler when the latter was discriminatorily discharged. In an exchange of opinions about the Union on November 17, John Aloi, a member of management, told Stevenson "You've got to be crazy." Stevenson and McDonald were the only two employees in the new car servicing department. On November 21 at 11 a.m., the service manager told Stevenson and McDonald they were being discharged because Respondent was closing its new car servicing department and new cars would be serviced in the used car line. The next day both men returned to Respondent's premises to get their tools and observed employee Mobley working in the new car service department. Another employee was later observed working there. The new car servicing equipment, including that used for installing options, was not moved from the building for some time after the discharges. Respondent asserts that McDonald and Stevenson were discharged pursuant to the Respondent's plan to abolish the new car servicing line in order to cut expenses during the traditional slack season for new cars in November. However, from November 16 to 30, the Respondent ran an advertisement in the local newspaper for mechanics and qualified trainees, stating that "expansion also opens a need for a body man." Respondent gave poor workmanship and extra coffee breaks by the two men, and McDonald's failure to secure the inspector' s license necessary for "completed" inspection work on new cars as alternate reasons for the discharge However, on January 8, 1969, 4 months before the hearing 'Slayer's Johnsonville Meats , Inc. 174 NLRB No 94, fn 3, Intercontinental Manufacturing Company , Inc. 167 NLRB No 105 179 NLRB No. 43 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein, Respondent's attorney informed the Board's Regional Office that Stevenson was dismissed for belligerency and insubordination and McDonald, for failing to obtain his license The reason given the employees for their discharges - the closing of the new car service line and the transfer of the work to the used car service department - is refuted by the record evidence. Thus, the Respondent claims the merger of the work was due to the slack season in November. However, work decline during the month of November occurs annually, yet Respondent had never previously sought a similar remedy. Moreover, by the date of the discharge, November 21, the slow month was almost over and Respondent could anticipate the usual increase in business in December. That Respondent in fact expected such an increase is evidenced by its advertisement for additional mechanics.' Further, the economic consideration urged did not require the immediate discharges, for Respondent did not abolish the new car service line at that time but continued to operate the line during the period immediately following the discharges, as evidenced by the fact that two employees were subsequently seen working in that department and the special equipment remained in the separate area for some time thereafter. Therefore, this explanation for the dismissals was weak enough even if it had been advanced with consistency But, at various times Respondent gave other reasons for the discharges. Respondent contended at the hearing and in a letter to the Board's Regional Office that McDonald was discharged because he did not have an inspector's license, having failed this test. However, Respondent at a later point in the hearing testified that this failure to obtain the license was not a reason for the discharge. The record further discloses that McDonald was allowed to continue in his position for several months after his failure to pass the test was known to Respondent Similarly, Respondent contended that Stevenson was discharged for belligerency and insubordination, but later testified that this was not the reason At various times Respondent also assigned two other reasons, poor work and excessive coffee breaks, as reasons for Stevenson's discharge. Where an employer is unable to settle on a reason for discharge, but vacillates between several asserted reasons, an inference is warranted that the real reason for the discharge is not among those advanced. In the context of Respondent's hostility to the Union and its other unfair labor practices it often becomes apparent that the real reason was the employee's union activity.' The finding which we here make that Respondent was aware of the Union 'The Respondent' s witness denied that an expansion was anticipated, stating that the term "expansion program" was used in the ad because it sounded good Even assuming no planned "expansion" but an economy merger of the service lines, Respondent was attempting to justify the discharge of two mechanics on the grounds of economic necessity, while seeking to hire additional mechanics activity of McDonald and Stevenson is justified from the fact that the discharged employees openly engaged in in-plant union activity, the plant is relatively small, and communications between employees and management are frequent and informal. Accordingly, we conclude that Respondent discharged McDonald and Stevenson for discriminatory reasons. 4 The Trial Examiner found that Respondent violated Section 8(a)(I) of the Act by posting the rules, including changes in rates of pay, following the election in implementation of the unlawful threat to retaliate if the employees selected representation, and that Respondent violated Section 8(a)(1) and (3) of the Act by maintaining in effect and enforcing such rules. We agree. However, in his Recommended Order the Trial Examiner failed to require that employees be made whole for any loss suffered by reason of these violations. The General Counsel has requested that this oversight be rectified, and we find merit in this exception. As such reimbursement is necessary in order to remedy all the effects of Respondent's unlawful conduct, we shall amend the order accordingly. ADDITIONAL CONCLUSIONS OF LAW I Substitute the following as paragraph 1 of the Conclusions of Law- "l By telling its employees that they would be worse off if they voted for a union because it would install a timeclock and require the employees to punch in and out and that they in consequence would be regimented; by telling them there would be no more favors if the Union came in, by promising its employees it would clean up the restrooms and "straighten out" insurance problems without a union, by impliedly promising that without the Union, employees would get a new retirement plan; by posting a notice imposing stricter working rules, changing rates of pay and limiting coffee breaks on the day after the servicemen voted in favor of the Union, by interrogating employees as to who was in favor of the Union and what they thought of the Union; and by discharging Bradford J. Kohler, because he engaged in concerted activity protected by Section 7 of the Act, Respondent violated Section 8(a)(1) of the Act." 2. Add the following as paragraph 3 and renumber succeeding paragraph accordingly. "3. By discharging Howard McDonald and Robert Stevenson because they engaged in union activities, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act." 'A J Krajewski Manufacturing Co, Inc. 172 NLRB No 245, enfd 413 F 2d 673 STEVE ALOI FORD 231 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Steve Aloi Ford, Inc., Salina, New York, its officers, agents, successors, and assigns, shall. 1. Cease and desist from (a) Telling its employees that they would be worse off if they voted for a union, telling its employees it would install a timeclock and that they would have to punch in and out and would be regimented if they voted for a union, telling its employees there would be no more favors if the Union came in; promising its employees it would clean up the restrooms and straighten out the insurance "problem" without a union, posting any notice imposing stricter working rules, changing rates of pay and limiting coffee breaks in the service department without consultation with the Union, maintaining in effect and enforcing any such changes in its rules; interrogating employees about the Union, promising a new retirement plan if the Union does not get in, discharging any employees because he engaged in concerted activity protected by Section 7 of the Act (b) Discouraging membership in International Association of Retail Automobile Salesmen and Servicemen, (Ind.) or any other labor organization, by discharging or otherwise discriminating against employees in regard to hire, or tenure of employment, or any term or condition of employment (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds is necessary to effectuate the policies of the Act: (a) Offer Bradford J Kohler, Howard McDonald and Robert Stevenson full and immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay or other monetary loss they may have suffered in the manner set forth in that part of the Trial Examiner's Decision entitled "The Remedy." (b) Notify Bradford J Kohler, Howard McDonald, and Robert Stevenson 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 (c) Make whole all present and former employees for losses if any, they may have suffered through Respondent's unlawful changing rates of pay and other posted rules, together with interest at the rate of 6 percent per annum. (d) 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 (e) Post at its place of business at Salina, New York, copies of the attached notice marked "Appendix "6 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by its representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director for Region 3, in writing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that allegations of the complaint not specifically found to have been in violation of the Act shall be, and hereby are, dismissed. 'In the event that the Board' s Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading " posted by Order of the National Labor Relations Board" shall read "posted pursuant to a judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT WE WILL NOT tell our employees that they would be worse off if they voted for a union because we will install a timeclock and make them punch in and out if they vote for a union. WE WILL NOT tell our employees they will get no more favors if they vote for a union WE WILL NOT tell our employees we will clean up the restrooms and straighten out insurance problems without a union WE WILL NOT tell our employees that it is too bad the Union is coming in because there is a new retirement plan we would like to talk about. WE WILL NOT keep in effect or enforce any of the work rules posted on the bulletin board on January 31, 1969, insofar as those rules represent a change in working conditions in effect prior to that date WE WILL give our employees money equal to the amount they may have lost as the result of the unlawful posting and enforcement of new working rules WE WILL NOT ask employees what they think of the Union and how many employees want the Union WE WILL NOT discharge any employee because he has objected to a bonus plan or any other working 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions on behalf of himself and other employees or because he has engaged in any union or other concerted activities WE WILL offer to rehire Bradford J. Kohler, Howard McDonald, and Robert Stevenson to their former or substantially equivalent positions and will pay them for any pay they may have lost because we fired them. If Bradford J Kohler, Howard McDonald, and Robert Stevenson are now in the Armed Forces, WE WILL notify them 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. All our employees are free to join and remain members of any union or to refrain from joining or remaining members of any union except to the extent that such right may be affected by a contract with a union which contains a union-security clause lawful under the provisions of Section 8(a)(3) of the National Labor Relations Board STEVE ALOi FORD, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 4th Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 716-842-3100. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner Upon a charge in Case 3-CA-3653 filed November 25, 1968, and an amended charge in the same case filed March 27, 1969, by International Association of Automobile Salesmen and Servicemen, (Ind),' herein the Union, and upon a charge filed in Case 3-CA-3679 on January 23, 1969, by Bradford J. Kohler, an individual, herein Bradford, against Steve Aloi Ford, Inc., herein the Respondent, the General Counsel issued an order consolidating the cases and a complaint dated March 6, 1969, alleging Respondent violated Section 8(a)(1) and (3) of the Act. On April 2, 1969, the General Counsel issued a notice of intention to amend the complaint and the complaint was duly amended at the hearing 2 The answer of the Respondent as amended at the hearing denied the commission of any unfair labor practices This proceeding, with the General Counsel and the Respondent represented was heard by me at Syracuse, New York, on May 5, 6, 7, and 8, 1969. At the conclusion of the hearing the parties were given leave to file briefs and briefs were received on June 5, 1969. 'The name of the labor organization appears as amended at the hearing 'Respondent only objected to the motion to change the name of the Union to show no affiliation with the International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America Upon the entire record in this case and from my observation of the witnesses while testifying, I make the following FINDINGS AND CONCLUSIONS I THE BUSINESS OF RESPONDENT Respondent is a New York corporation maintaining its principal and only place of business at Salina, New York, where it is engaged in the sale and distribution of new and used automobiles and trucks Respondent's revenues from such sales exceed $500,000 annually and it receives automobiles and trucks valued in excess of $50,000 annually from places outside the State of New York Respondent is engaged in commerce within the meaning of the Act 11. LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. This finding is based on the fact that the Union has a collective-bargaining agreement with at least one other employer and exists for the purpose of representing employees and dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work I therefore consider the disaffiliation of the Union from the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America immaterial Cabot Carbon Company v. N L R B, 360 U S 203 III THE UNFAIR LABOR PRACTICES A Violations of Section 8(a)(1) The complaint as amended at the hearing alleges, paragraphs 6, 7, 8, and 9 violations of Section 8(a)(1) by various officers and supervisors of the Respondent on various dates between January 15 and 31, 1969 3 The brief of the General Counsel does not specify the allegations which he would find supported by the evidence taken at the hearing The Examiner will make specific findings as to allegations supported by the evidence and, as to those allegations not so found, will recommend that the complaint be dismissed Paragraph 6 of the complaint refers to two meetings of employees conducted by President Steve Aloi, Sr , on January 27 and 29. As to Steve Aloi's speech on January 27, Richard Dean, Jr , employed at that time as a body and fender man in the service department, testified A He said he had just come back from down south to get rid of a cold and he said he was surprised to hear that we were forming a Union up here and he hustled right back to see what it was, and he couldn't believe it, that we wanted to do such a thing. He started talking about how crazy Unions were and we had it good there. We had no reason for a Union, and he started in on the affiliation, and that nobody wanted Harry Stewart and he was using all kinds of vulgarity when he spoke of Harry Stewart Every other word was something else, 'Pursuant to a petition for an election in Case 3-RC-4560 filed by the Union (under its affiliated name ) the Acting Regional Director for Region 3 on January 10, directed an election among separate units of salesmen and service employees At the election held January 30 the tally of ballots shows that among the service employees 10 voted for the Union and 4 against , with 2 challenges At the time of the hearing objections to the election filed by Respondent herein were pending before the Board STEVE ALOI FORD and he said that we'd be worse off if we ever voted for a Union, because Harry Stewart could never do nothing for us He was a "F-ing" bum and all this kind of talk. He was just trying to scare us on the facts. Q. State what was said and who said it. Continue. A. He started telling us that the Teamsters didn't want nothing to do with us, He had just met with DiMaggio, the head of the Teamsters in this area. TRIAL EXAMINER: Who? THE WITNESS: DiMaggio. TRIAL EXAMINER: Who met with him? THE-WITNESS: Steve Aloi, Sr. MR. RANDAZZO. Speak up. THE WITNESS: He said they didn't want nothing to do with us. DiMaggio didn't want nothing to do with us. We were just a little outfit, and if the Teamsters wanted anything, they would come and rip holes in the walls and if we didn't want them, we'd be found in alleys with legs broken and we'd know if they wanted us. Then he talked about recognition and if we wanted a Union he'd put a time clock in every stall and we'd have to punch out everytime we wanted to go take a piss. Those were his exact words There was quite a lot of things said of the meeting and it's hard for me to grasp it all. It's hard for me to remember, it's quite a long time ago. It went on a little bit longer and Steve Aloi, Sr. spoke with several of the servicemen about equipment. The guys were scared of the equipment, that it was faulty and one guy had almost killed himself with a truck falling on him and there was a discussion on this, and Steve Aloi, Sr., said that our equipment was kept up good all the time and nobody seemed to agree with this. Q. Do you recall anything else? Now, Mr. Dean, can you state whether or not during the course of this meeting the word "favors" came up for discussion in any regards? A. That happened along the time when he was telling us that we had it good and everything and that any Union would sever the employee to employer relationship and there would be no more favors for employees. Wayne Wade, employed as a front-end man at the time testified to the same talk as follows: A. Well, Steve Aloi, Sr. did all the talking. He appeared to be quite mad and that he said that Harry Stewart was no good and they had no use for a third party in there, because anything coming from - anything we got had to come through him. And he said, if we did put the Union in there, he would regiment us. We'd have to come to work at 8:00 in the morning and work until noon and have an hour out and come back at 1.00 and work until 5.00. He kept repeating himself quite often and said that Fred Maggio was a friend of his and he wanted no part of being tied up with the Union in there. James Van Allen, employed as an electrician, testified: THE WITNESS: Steve Aloi, Sr. he was the only one that said anything. He spoke about the Union coming in and he didn't feel we needed a third party in there. He asked why, what was the problem in there. He asked me why I wanted the Union in there and I said, because the bathrooms haven't been cleaned in about three months and he said that we can take care of that. And another gentleman said, my paycheck has been cut and he said we can work that out, and another fellow asked about the insurance and 'he said, well, we can get the insurance company up here and straighten that out. 233 And one of the other fellows asked about what's going to happen if the Union comes in and he said, "We'll regiment you." He was quite upset and he went on to tell about the regimentation and that he would put time clocks in for every man and we'd be working 8:00 to 5.00. And that was about all that was said. Jack Craner's testimony as to this speech was substantially in accord with that of the above witnesses. On January 29, the day before the election Steve Aloi, Sr., made another talk to his employees. Dean's testimony as to this one- A. Steve Aloi, Sr. immediately begged our pardon' for the way he had talked at the previous meeting and said he heard that he had offended quite a few people and had talked too harshly, and then proceeded to beg us not to vote yes for the Union. He just about - he was begging us not to and he started telling us again that nobody wanted us and we'd be all alone and we'd lose more than we would gam, and he got into the thing about - he says, "If you vote for it," he says "You'll feel like you're in the Army here and I'll regiment this place so bad that you'll feel like you are in the Army. The testimony of Wade, in substance, supports that of Dean. The testimony of Steve Aloi, Sr., substantially agrees with the testimony of the preceding witnesses as to both speeches and I see nothing to be gained by incorporating it here. Paragraph 6 of the complaint, as amended, alleges that Respondent posted a notice (G. C. Exh. 5) on the door of the service manager's office on January 31 (the day after the election) reading: NOTICE: All Service Department Employees. 1.) WORKING HOURS Except in special cases with prior authorization, all service personnel are required to punch in and out on the time-clock according to the following business hours: a) All service department employees except get-ready personnel- Mon, Tues, Thurs, Fri, - 8 am to Noon; (lunch); 1 pm to 5 pm Wednesday - 8 am to Noon; (lunch); 1 pm to 5 pm; (supper); 6 pm to 9 pm. b) Get-ready shop personnel - Mon. Thru Fri. - 8 am to Noon; (lunch); 1 pm to 5 pm Saturday - 8 am to Noon. There is one coffee break, on the premises, when the "coffee truck" arrives in the morning. All "overtime" must be approved before the work is performed. Persistent absence or tardiness, for reasons other than sickness (for which appropriate proof may be required), represents just cause for discharge. 2.) For "flat-rate" personnel, effective January 31, 1969, earnings per flat rate hour will be increased eight cents, from $3.50 to $3.58. This is equivalent to 50% of the current warranty rate ($7.16) per flat rate hour, and is comparable to what other Ford dealers are paying. All service operations will be evaluated in flat-rate hours. Earnings will be computed by multiplying the accumulated flat-rate hours times $3.58. Compensation, then, will be entirely unrelated to the amount the customer pays. In this way, equitable compensation will be given for jobs which are specially priced at less than the actual flat-rate hour value; for example, "Special: Tune-up, Front-end alignment„ oil change and lubrication - only $12.95." Compensation, 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this case, would be based on the actual flat-rate hours of the operations (at $3.58 per flat-rate hour), rather than a percentage of the low "traffic-builder" retail price The notice was admitted without objection and it is not disputed that it was posted Paragraph 7 of the complaint alleges the interrogation of employees as to their union activity by Glenwood Dilling, new car sales manager on January 15 and 29, 1969 Wayne Wade testified that on January 15 he had a casual conversation with Dilling in the shop and that Dilling asked him how many people were in favor of the Union and that when he told him everyone was "he took off and went into the showroom " George Cleveland testified that on January 29 Dilling called him into his office and asked him if he liked working there and then asked him what he thought about the Union Cleveland's answer was evasive Paragraph 8 of the complaint alleges that Respondent, though Dilling on January 23 promised its employees benefits to induce them to refrain from union activity James Van Allen testified that on January 23 he had a conversation with Dilling in which he said it was a shame the Union was coming in because the dealer's association had a new retirement plan coming out but he could not talk about it "right now " This is all the evidence to support the allegation respecting Dilling Paragraph 9 of the complaint alleges that Aloi, Sr., on January 29, told his employees that the Union could not obtain benefits for them. Assuming that this was embraced within the context of Aloi's speech of January 29, it will be discussed in that context B Conclusions as to Section 8(a)(1) On the credited testimony of Richard Dean, Jr , Wayne Wade, James Van Allen, and Jack Craner, not substantially contradicted, I find Respondent violated Section 8(a)(I) of the Act in the talks given by Steve Aloi, Sr , on January 27 and 29, in the following particulars (I) Telling its employees they would be worse off if they voted for a union and that Harry Stewart could do nothing for them (2) Telling its employees it would install a timeclock and the employees would have to punch in and out and that they would be regimented if the Union came in (3) Telling its employees there would be no more favors for them if the Union came in (4) Telling its employees they would be checked in and out when they road-checked a car and would have to give the address of the destination of the car. (5) Promising employees it would clean up the restrooms and straighten out the insurance if the Union did not come in I also find the notice posted on the service manager's door the day after the election implemented the threats contained in the speeches to require employees to check in and out, and by, without consultation with the Union designated to represent the servicemen, changing their rates of pay and limiting their coffee breaks (The complaint does not alleges any violation of Section 8(a)(5)) I do not find the casual and isolated interrogation of Wade and Cleveland by Dilling sufficient to warrant a finding of violation of Section 8(a)(1) 5 I do not find any implied promise of benefit in Dilling's remark to Van Allen that it was a shame the Union was coming in because the dealer's association had a new retirement plan. All Dilling told him was that he (Dilling) could not discuss it C Violations of Section 8(a)(3) I The discharge of Kohler Kohler was employed by Respondent as a car salesman from August of 1968 until October 31, on which date he was fired He testified that, presumably prior to October 30, "some of us talked about having a union " On October 30 he went to the service department to talk to the servicemen about a petition "for a Union vote " He talked to most of the men in the used car get-ready shop, including Earl Bliss 6 In the evening he talked to salesmen in the new car showroom concerning the Union, about 10 or 12 feet from the sales office Standing in the doorway of the sales office were Steve Aloi, Jr and Glenwood Dilling Kohler testified that he and the salesmen moved to the up-desk at the end of the salesroom where he made out a petition for a union vote - the employees could vote either yes or no on this petition The next day, October 31, he attended the usual morning sales meeting and, on his way up to the meeting, one of the girls in the bookkeeping office held up his paycheck and showed it to him as he was going upstairs On cross-examination, however, Kohler testified that he could not identify the girl who showed him his check, that she was 10 to 12 feet away from him and that he could not read the check At the sales meeting that day Steve Aloi, Jr , was explaining a new bonus plan Respondent was providing its salesmen (The details of the plan I find immaterial ) After asking some questions Kohler stated he did not think the plan fair or feasible and asked each salesman for his opinion and stated they agreed with him. Steve Aloi, J r , and Dilling told him he was "goofy " He then told them they would see how the union would feel about it Mot and Dilling told the salesmen they were disappointed at the objections and would discuss it at the next meeting. Shortly thereafter Kohler was called to the sales office where, in the presence of Steve Aloi, Jr , Dilling told him he was fired because of the trouble he had caused in the "last couple of days." He refused his paycheck and left Glenwood Dilling testified that he and Steve Aloi, Jr , made the decision to discharge Kohler on October 31 The discharge resulted from Kohler's behavior at the sales meeting that morning at which Aloi attempted to explain the Respondent's new bonus or incentive plan He stated that at about the end of the meeting Kohler got up and became extremely belligerent and dominated the meeting, putting it in "utter chaos " When the meeting could not be brought back to order it was dismissed According to Dilling, Kohler did not claim to represent the other salesmen and did not mention the Union No salesmen were called by either party to testify to Kohler's conduct or his statements at the meeting. The complaint also alleges that Steve Aloi, Sr , made similar promises on January 27 and 29 These allegations will be discussed in the context of Aloi's speeches on those days 'Bourne Co v N L R B. 332 F 2d 47 (C A 2) 'Although not relevant to the discharge of Kohler, Bliss is found to have been a supervisor of Respondent, infra STEVE ALOI FORD 235 As a secondary reason Dilling stated that he had received complaints from other salesmen, a month or two before the meeting that Kohler was taking "ups" that did not belong to him.' Kohler was also accused of not splitting commissions with salesmen whose customers asked for them by name Neither allegation was supported by independent testimony 8 According to Dilling, the Kohler discharge was discussed immediately following the sales meeting and Steve Aloi, Jr , had his check made out when decision had been reached and before Kohler was called in When Kohler was called in he was told that he was being discharged for his hostility and for causing trouble in the sales organization Steve Aloi, Jr., was not questioned as to the discharge of Kohler 2 The discharges of Stevenson and McDonald Howard McDonald and Robert Stevenson were both employed in the new car servicing department at the date of their discharge, November 21, 1968 They were the only two employees in that department' McDonald testified that on the day Kohler was discharged, he came to the new car department and gave McDonald the petition he had previously prepared (the pro- and anti-union petition) and told McDonald that if he wanted to carry the ball from there he could McDonald discussed it with Stevenson and they thought they would find out how the men felt about it About November 7, McDonald had a conversation with Stewart who told him he would have to have over 50% of the men to have a union McDonald talked this over with Stevenson and they prepared a new petition similar to Kohler's, circulated it and received signatures. About November 14 or 15 McDonald called Stewart, told him they had about 55 to 56% signed and later met with Stewart. Stewart gave them a book and another petition to have signed. McDonald and Stewart took it around the shop, explained "the workings of the union" to the men and had the petition signed The only official McDonald observed while circulating the petition was John Aloi, standing in a corner of the used car department who saw an employee sign the petition. There is no evidence that John Aloi knew what the petition was or why the employee was signing When they had obtained the employees' signatures they returned the petition to Harry Stewart 10 McDonald testified that he signed the petition on November 17 although the date of the petition reads November 19 An examination of the writing discloses that the date may have been changed although by whom or for what reason is unknown McDonald and Stevenson were both discharged on November 21 At about 11 a.m Don Darling, a service manager, came to them and told them they were being let go because Respondent was closing its new car department and putting the new cars through the line" McDonald told him he would accept that. Darling asked "'Ups" are new customers who come to a salesroom to purchase cars One of the floor salesmen on duty will service the customer Kohler testified the floor salesmen had no rotation system for handling "ups" and that the first salesmen to reach the customer would handle him 'Larry Witz, named by Dilling as a complainant, was called by the General Counsel and testified that he could not recall having complained to Dilling about Kohler 'While Respondent claims McDonald was a supervisor I do not find this supported by the record While McDonald was the senior and the higher paid employee both performed essentially the same services "GCExh4 McDonald to check a shipment of new cars but McDonald refused on the ground that since he was discharged he would accept no further responsibility. Darling then told them they might as well leave and McDonald and Stevenson packed their tools and left The next day McDonald returned to the shop with a former employee named Warren to get Warren 's tools and observed Robert Mobley working in the new car department . He did not testify as to what Mobley was doing 12 Richard Dean, Jr, employed as a salesman until February 5, 1969, testified that he had been in the new car department after the discharge of McDonald and Stevenson and observed that none of the new car equipment , including the equipment for installing options, had left the building He also observed Robert Mobley, whose job he could not describe , working there and stated Earl Bliss moved over a day or two later In the Regional Director' s "Decision and Direction of Election" Earl Bliss was found to be the "New and Used Car Get Ready Foreman" and a supervisor . Aloi, Jr , testified that Bliss had been the used car reconditioning foreman and that when the new and used car departments were merged he became foreman of both The merger took place sometime between the discharge of McDonald and Stevenson and December 23. Stevenson was employed in the new car department from October until November 21, 1968 He testified that 3 or 4 days before he was fired he asked John Aloi what he (Aloi) thought of the Union and Aloi responded , "You've got to be crazy9 " As to the balance of his testimony Stevenson corroborates McDonald as to their efforts to obtain signatures to the petition in the service department and to the circumstances of their discharge . Stevenson also returned to the shop the next day and observed Mobley working in the new car department Stevenson described Mobley as a car washer . He did not, however, testify as to what Mobley was doing Darling testified that McDonald and Stevenson were discharged because business was slow . New cars were to be conditioned by the flatrate line mechanics in the shop Darling added as an additional reason that their work was sloppy Darling testified that both McDonald and Stevenson performed work on cars which was improper and resulted in the cars being returned to the service department His testimony on this point does not clearly establish that their work was any more deficient than that usually performed in service departments In any event Darling testified that at the conference between Aloi, Jr , Dilling and Darling held the day before the discharge, when Darling mentioned their poor work, Aloi told him that the jobs were being eliminated anyway and new cars would be run through the line only once This testimony by the man who made the decision would eliminate poor workmanship as a vital factor in the decision 11 This meant that the new cars would be serviced through the used car line, combining the operations On cross-examination McDonald testified that Darling told him business was slow and McDonald admitted business had slowed down "Mobley's job status is not clear Dean said he would not describe him as a car washer, although Stevenson so describes him He was apparently a "lot boy" who could fill in at other jobs "Respondent established that McDonald did not have an inspector's license and had failed his test A new car, according to the testimony, had to have a certificate signed by a licensed inspector , presumably guaranteeing safety I do not find , since McDonald was continued as new car conditioner for many months after failing to secure his license, that this was a substantial factor in the decision to discharge him 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steve Aloi, Jr , testified that the day before the discharge he, Dilling and Bill Stafford, Respondent's controller, were discussing profits and expenses and considering a way to cut expenses at a traditionally slack season They determined there were not enough new cars going out to justify the new car department At some point Darling got involved and mentioned their faulty work and suggested running the cars through the shop line At the same meeting Stafford mentioned the extra coffee breaks they were taking " The decision was then made to discharge both McDonald and Stevenson and merge the new and used car departments and they were notified of this decision by Darling as above set forth One other relevant factor remains to be considered Aloi, Jr , was asked on cross-examination if it were not true that from November 16 to November 30 Respondent was running an "ad" in the local newspaper for mechanics and qualified trainees Aloi said he assumed Respondent was running such an ad, that it was always looking for good mechanics and that an expansion program sounded good in the ad 3 The discharge of Paul Parris Paul Parris testified that he was last employed by Respondent as a salesman from August to November 21, 1968 He had previously been employed by it as a salesman in 1964 and 1965 Parris was present when Kohler discussed union organization with the salesmen in the salesroom on the evening of October 30 and on November 20 he signed the petition in support of the Union (G C Exh 4.) He stated that prior to his signing the petition he had heard discussion of the Union all over the showroom, down at the doughnut shop and during coffee breaks and that he participated in these discussions He was discharged by Steve Aloi, Jr , on November 21 and his version of the discharge discussion reads A Mr Aloi, Jr called me into the office and he said to me - Mr Aloi, Jr said, I'm going to have to let you go I was a little surprised I said, "Let me go)" He had my check already sitting on the desk and he picked it up at that time and had it in his hand and I was a little bit surprised 1 was in the process of delivering eight cars I was in the process of moving out eight cars. That's what I got paid on, half at that time and half after I left I said to Mr Aloi, Jr., what's the problem9 He said you're late for the sales meeting I told him "You know why I'm late" He didn't say nothing He said, "That's it, you're fired " So, I stood there looking at him, you know, and he didn't say nothing. Then he kind of looked at me and he looked like he had a hurt look in his face and he said, "You disappointed me in another way " I said, "What do you mean" He said, "Nothing " I turned to Mr. Dilling and said, "Bud," we call him Bud, "Talk to Steve will you9" And he said, "I just work here" So then this gentleman asked me for my keys to the demonstrator which I gave him Q This gentleman meaning who`i A Mr Aloi, Jr And he arranged for a ride for me downtown. I think then I walked into the show room and Mr Dilling came out and said, "I hate to see you go, Champ " I'm going to tell it just the way it was And I said, "What can I do " "McDonald testified that they usually took a coffee break after checking in at 8 a in The employees received a regular coffee break at 10 a m Steve Aloi, Jr , testified that he rehired Parris in August, 1968, against the wishes of his father because he needed a salesman and considered Parris a good salesman and a strong "closer " He stated that in previous employment Parris had difficulty in getting to work on time and that he told him he had to be on time for the sales meetings 15 After his employment in August Respondent had a problem in Parris' attendance at the sales meetings or, as Aloi put it, he was "consistently not there." He was warned several times and Dilling and Aloi would decide to let him go but Parris would make one or two sales that night so the issue was deferred. Although the date is not fixed it could be established that on the evening of November 20 at about 9 p.m. Parris told Aloi he would be a little late the next morning and Aloi told him to make the sales meeting Parris did not make the meeting and did not report, according to Aloi, until 11 30 a m (Parris stated he thought he reported at 11 a m Aloi's testimony as to the discharge reads A As soon as I saw him come in the door, I knew I told him the night before to be in and he wasn't at the meeting I talked to Bud again and we said today, that's it, we're going to call it quits. As soon as he came in the door I called him in the office and sat down with him I don't remember exactly what I said, something to the effect that I had to let him go It wasn't working out and he wasn't with the program the way we agreed and just asked for the keys to the demonstrator, I guess He said, Steve, give me another chance, I need the job and I said, "I'm sorry, Paul, but I can't go on any longer with it because you've let me down You disappointed me in a lot of ways, because when I hired you you knew I was sticking my neck out, so to speak, because my dad didn't want me to hire you in the first place. I went to bat for you to do a good job for us and now I end up being a dummy." I mean, when it's disrupting the sales force, we can't tolerate it any longer Glenwood Dilling, sales manager, testified that altei Parris was reemployed he had difficulty adjusting to Respondent's new sales methods His testimony on this is unintelligible to anyone not familiar with the industry.- He also testified that Parris was handling "parlays" in the agency " As to the decision to discharge Parris and the circumstances of discharge Dilling's testimony corroborates that of Aloi, Jr. "The sales meetings were held at 9 a in or shortly thereafter and Dilling testified that among their purposes was to get the salesmen out of bed before noon "His testimony reads Q (By Mr Ganotis ) Did you have any difficulty , Mr Dilling9 A Yes Q What was 0 A Well, the trading tactics had changed We had the more grear system which was a very hard firm close , that's how we were trading back in them days when Paul was there Q He worked for Steve Aloi Ford before, is that right9 A Yes The more grear system was to put them on paper , a real hard grind close Then , in that day , if you couldn't you broomed them Things had changed, we tried to put a soft sell, being a little hostile with our customers , and he found this very hard to control himself He was very strong and aggressive "By "parlays" billing meant that he was selling tickets on football and baseball pools I find billing's testimony with respect to this totally unsubstantiated STEVE ALOI FORD 237 4 The discharge of Dean Dean was employed by Respondent (for the second time) from July I, 1968, to February 5, 1969 Eliminating the irrelevancies in Dean's testimony, which eliminates most of it, he testified that on January 28 he made a trip to Utica with Harry Stewart where he "was enlightened with the meeting we had with these officials in Utica, and so, I wanted to let everyone know about it " When he returned he was told that everyone knew he had been to Utica Dean called a meeting of the servicemen that night at Aunt Jamina's restaurant across the street His testimony then skipped to the meeting on January 29 conducted by Steve Aloi, Sr., where he told Aloi, Sr , that Harry Stewart had not been kicked out by the Teamsters. Aloi would not listen to him As they were leaving the meeting Aloi, Sr , asked him what he had against him and Dean told him nothing, but that the employees wanted representation On February 5, Dean called the shop and spoke to Bill Martin, assistant service manager, and told Martin his doctor had advised him to take about a week off because of a back injury. Martin asked him to come in and finish some paper work Dean drove to the agency, finished his paper work and then decided to get some maintenance work done at the service shop while he was there. He pulled to the service door, "beeped" his horn and George Cleveland, an employee started to push the door button John Aloi came up to Cleveland, stopped him from pressing the button, and, according to Dean, gave him (Dean) a dirty look and told him to get out of there Dean waited a minute or two and then went inside where he asked Aloi what he was trying to pull. The following dialogue was brief He (Aloi) said, "I'm trying to tell you to wait " I said, "Don't you tell me that you asshole, you're telling me to get out of here You can't tell me that Bill Martin told me to come in and get my paper work straightened out " John Aloi said for me to be careful what I say or else Aloi then walked to the service desk and got Steve Jr and he fired me and told me to get my tools up, I was done It is this name-calling incident which was the sole cause for the discharge of Dean, according to counsel for the Respondent To minimize Dean's offensive language the General Counsel recalled Harold Kohler who testified Q Did you ever have occasion to swear at John Alois A Yes. Q. Can you give us an idea of the occasion or extent and what you said" MR. ALOi I object to this as being irrelevant and immaterial TRIAL EXAMINER Overruled THE WITNESS Just about everyone called everyone an asshole down there They called everyone just about everything down there. There was nothing really serious about it, including Bud Dilling, Steve, Jr , said well you asshole, what are you talking about Things such as this, and it meant nothing Q Did you call Mr. John Aloi an asshole? A Many times, not in the showroom, but at bars when he actually went out with us Jack Craner, another employee, testified that on one occasion he told Bill Martin during an argument, to go - himself When Darling reprimanded him for his use of such language to a supervisor he told him he did not know that Martin, then a service writer, was a supervisor After this he never told Martin to go himself again. John Aloi's testimony is in almost complete agreement with that of Dean's He testified that when Dean entered the service department "storming in the side door like a maniac" and called him an asshole, he was stunned. He also testified that there were other employees and customers within hearing distance Aloi went to the sales office and talked to his brother Steve, Jr They decided to fire Dean, went back to the service desk where Dean was standing and fired him D Conclusions as to Violationv of Section 8(a)(3) 1 The discharge of Bradford J Kohler I find the primary reason for Kohler's discharge was his conduct at the sales meeting held on October 31, a fact substantially conceded by Respondent Dilling's testimony that he had received complaints from other salesmen that Kohler was stealing "ups" and not splitting commissions, a charge not substantiated by the record, indicates that the complaints were only supplemental factors Since Aloi, Jr,, was using the meeting as an opportunity to explain a new bonus system for the salesmen, it was devoted to working conditions and Kohler, on behalf of himself and the other salesmen, had a right to protest the system 18 While Dilling testified that Kohler became so belligerent that the meeting was reduced to chaos and had to be dismissed I am not, on the basis of his mere unsupported description, willing to find that Kohler was thereby deprived of his rights under the Act " In short I find that Kohler was discharged for exercising the rights guaranteed by Section 7 of the Act Under these circumstances I find it unnecessary to decide whether the discharge violated Section 8(a)(3) in addition to Section 8(a)(1) 2° In making this finding as to violation of Section 8(a)(1) I also find it unnecessary to pass on the issue of the Respondent's knowledge of Kohler's union activity. Regardless of such knowledge the discharge violated the Act 2 The discharge of McDonald and Stevenson Although there is no direct evidence of company knowledge of union activity on the part of McDonald and Stevenson, I find it reasonable to infer such knowledge or at least suspicion. This based not only on the small size of the agency, employing about 26 employees, but on the testimony which reveals that McDonald solicited rather openly in the plant during working hours I have also considered that hierarchal echelons are not rigidly observed in automobile agencies and that communication between employees and supervisors is free and easy I do not believe that after the discharge of Kohler Respondent was unaware of union organization or unaware that McDonald and Stevenson were furthering it.21 "I credit Kohler's testimony that he asked the other salesmen what they thought of it and if they did not agree with him This is sufficient to bring his conduct within the definition of concerted activity "I consider it significant that Aloi , Jr , although a witness , was not interrogated as to Kohler 's conduct "Quality Rubber Manufacturing Company . Inc, 176 NLRB No 7, and cases cited, fn 3 "This finding is made more difficult in view of the sworn testimony of both Aloi, Jr. and Darling that at the time of the discharges they did not know either McDonald or Stevenson was engaged in union activity In view of the ultimate finding this issue loses import 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The issue I find presented is whether Respondent was motivated by the economic saving or by the employees' union activity. In reaching conclusion I accept the fact that McDonald failed to pass his inspector's test and that the men, as did other servicemen, took an extra coffee break as only incidental to the cause of discharge The General Counsel emphasizes that the new car department was not closed down and that Bliss and Mobley were assigned to that shop to service new cars 22 This, presumably, would indicate that the economic factor asserted by Respondent was false and fortify the inference of discrimination What the General Counsel has not established, however, is that Bliss and Mobley were replaced or that the total working force was increased, in which case the savings to the agency were not diminished. Bliss still retained his supervision over the used car line and took on Mobley to help in the new car line Whether Mobley's duties were confined to the new car department is not known As I understand this record, and it is not clear on this point, new cars received from the factory were sent to the new car line for checking and the insertion of options If, after delivery to the purchaser, further adjustments were necessary they were returned to the new car line for such adjustments. Under the new arrangement cars returned by such purchasers would be checked and adjusted on the used car line Respondent has established that business was slack during the traditionally slow month of November (a fact acknowledged by McDonald), that it was seeking a means to reduce expenses and that the elimination of the two employees in the new car department was at least feasible. The record does not fault this argument The General Counsel's case rests on the union activity of McDonald and Stevenson, their discharge and refutation of the reasons asserted for discharge Because I do not believe he has succeeded in establishing that the grounds given for discharge were pretextuous I do not find he has sustained his burden of proof Union activity followed by discharge may raise a presumption of discrimination but it is not irrebuttable. Having shown reasonable cause for discharge which has not been successfully attacked I do not find the presumption alone sufficient to support a finding of violation I do, however, find Aloi's admission that Respondent was advertising for mechanics at the time it discharged McDonald and Stevenson inconsistent with its economic defense On the other hand I believe there was some obligation on the part of the General Counsel, in his investigation, to determine whether new mechanics were actually hired and at what rates of pay and for what duties Without such evidence I think I must accept the fact that the merger effected an economy 3 The discharge of Parris The discharge of Parris presents another clear issue. He was either discharged for his habitual tardiness or for his union activity 13 His union activity consisted in signing the union petition (G C. Exh 4) on November 20, and according to his testimony, in urging other employees to select a union and have "some kind of representation through a Union by law."2a "Neither Bliss nor Mobley was called as a witness so exactly what services they performed after November 21 is not known "1 find no support for the allegation that Parris was engaged in the sale of "parlay tickets " The circumstances of his discharge have been described, supra Parris did not deny that he was frequently late and missed sales meetings . His excuse, at least in part, was that he had received a back injury in a automobile accident and visited his doctor at 9 a m , bringing a medical excuse to Respondent after each visit The testimony of Steve Aloi, Jr., and Darling establishes that he missed sales meetings and that he could have visited his doctor after the meetings 25 The testimony is undisputed that the meetings lasted from 15 to 20 minutes. I also find that Aloi, Jr , and Darling were disturbed by his failure to attend the meetings, that he had been warned about his failure to attend meetings and, more specifically, I find that Aloi, Jr., did warn him to attend the meeting on November 21 26 Parris did not report that day until I1 a m. (according to Parris) or 1 1 30 a m. (according to Aloi, Jr and Darling) In any event he had not been to his doctor on that day and his tardiness after a direct warning, was inexcusable Unless I am to hold that the mere signing of a union petition establishes a complete immunity against discharge for cause and an irrebuttable inference of discrimination, I must hold that the discharge of Parris did not violate Section 8(a)(3) or (1) of the Act 4 The discharge of Dean, Jr Dean was discharged by Respondent on February 5 for one reason and one reason only, i e , his use of an abusive and foul epithet to his supervisor , John Aloi on February 5 There is no evidence of any union activity on the part of Dean until he took the trip to Utica with Stewart on January 28 27 His testimony is that everyone in the shop knew he made the trip, testimony which is unsupported Again company knowledge is not a problem The evidence, including Dean's testimony, establishes that he was discharged immediately following his calling John Aloi an asshole. The words were not spoken in jest and were made in the presence of other employees and customers. Aloi's immediate response, after telling Dean to calm down was to go to his brother and report the incident Both decided to discharge Dean Since both the response and the decision were spontaneous and, in my opinion justified'28 and stemmed solely from the use of an intolerable epithet" I find no evidence that discrimination 'There is no direct evidence that this activity was known to management There is the sworn testimony of Aloi, Jr, that he did not know of any union activity on the part of Parris I do not, in view of the conclusion reached , find it necessary to resolve this conflict between the inference the Board customarily draws and the sworn testimony on Aloi, Jr "Resp Exh 2 indicates that the office hours of Parris ' doctor were from 10am to2pm "Parris could not remember whether he had been warned or not "Dean testified that after the discharge of McDonald and Stevenson he asked Martin why they were discharged and Martin told him work was slow and there was a consolidation He also asked Darling about the discharges and Darling told him work was slow and they were giving the work to the line mechanics Dean also testified that he spoke to John Alot about the discharges and that Aloi "sort of giggled and turned around and walked away " 231n a period in which college students address the presidents of colleges with four (and more) letter obscenities the finding may seem anomalous The issue is not, however, whether the employer is compelled to submit to such indignities by the mores of the times but whether he discharged the employee for his union activity "The General Counsel offered testimony that the term was generally used , together with other vulgarities , about the shop None of his STEVE ALOI FORD played any part in Respondent's decision I therefore find the discharge of Dean did not violate the Act. In reaching conclusion with respect to the discharges of McDonald, Stevenson and Parris I have given weight to the fact that during this period Respondent engaged in no antiunion campaign and committed, apart from the discharge of Kohler, no unfair labor practices 30 Other violations of Section 8(a)(1) were confined to the speeches of Aloi, Sr , on January 27 and 29, more than 2 months after the discharges in question. Aloi, Sr., whose antiunion feelings have been demonstrated, was taken to the hospital on November 4 and spent the next 2 months at home recuperating The record does not indicate that he participated in the decision to discharge these employees IV REMEDY Having found the Respondent engaged in and is engaging in certain unfair labor practices it shall be recommended that Respondent cease and desist from the same and take certain affirmative action necessary to effectuate the policies of the Act. Having found that Respondent discriminatorily discharged Bradford J Kohler because he engaged in protected concerted activity it will be recommended that he be offered full and immediate reinstatement to his testimony indicated that it was used as serious abuse of a supervisor While Kohler testified that the term was generally used as a form of address in the shop he also testified that he never used it to John Aloi in the showroom, only in bars The General Counsel did not attempt to establish that the term was used as one of affection or endearment '°It may be that neither Aloi , Jr. nor Dilling were aware that any employee could not be discharged for speaking out at a meeting during which working conditions were being discussed without risking violation of Section 8 (a)(1) Since motive is not a factor in establishing violation of that Section neither their ignorance nor innocence will serve as exculpation It may, however , be another intangible to be evaluated in finding subsequent violations of Section 8(a)(3) 239 former or substantially equivalent position without prejudice to his seniority and other rights and privileges and that he be made whole for loss of pay or any other monetary loss he may have suffered by reason of the discrimination practices against him Backpay shall be computed as prescribed by the Board in F W Woolworth Company. 90 NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB 716 Based upon the foregoing findings and conclusions and upon the entire record in this case, I make the following CONCLUSIONS OF LAW I By telling its employees that they would be worse off if they voted for a union and that Harry Stewart could do nothing for them, by telling them it would install a timeclock and that they would have to punch in and out and would be regimented: by telling them there would be no more favors if the Union came in; by promising its employees it would clean up the restrooms and "straighten out" insurance problems without a union; by posting a notice imposing stricter working rules, changing rates of pay and limiting coffee breaks on the day after the servicemen voted in favor of the Union: and by discharging Bradford J. Kohler because he engaged in concerted activity protected by Section 7 of the Act, Respondent violated Section 8(a)(1) of the Act 2 By maintaining in effect and enforcing the rules posted by Respondent on January 31. 1969, Respondent violated Section 8(a)(3) and (t) of the Act." 3 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act [Recommended Order omitted from publication ^ "No violation of Section 8(a)(5) was alleged in the complaint Certification of the Union as collective -bargaining representative of the service department employees had not issued at the time of the complaint