Webber American, Inc.

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Webber American, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 3l-CA-2194 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE December 22, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On August 31, 1971, Trial Examiner Herman Corenman issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. HERMAN CORENMAN, Trial Examiner: This matter was heard at Los Angeles, California, on May 25, 26, and 28, pursuant to charges and amended charges filed on December 19, 1970, December 28, 1970, and March 2, 1971, by International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union. On March 5, 1971, complaint issued on behalf of the General Counsel of the Board by the Regional Director of Region 31, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Webber American, Inc., the Respondent herein, filed its answer denying that it engaged in the violations alleged in the complaint. At the hearing the parties were afforded full opportunity to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally on the record, and to submit briefs. Briefs submitted by counsel for the General Counsel and by counsel for the Respondent have been carefully considered. Upon consideration of the briefs, my observation of the witnesses, and the entire record' in this case, I make the following: FINDINGS OF FACT ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Webber American, Inc., Lawndale, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i In reaching the same conclusion as the Trial Examiner that the economic reasons assigned by the Respondent for the termination of the five employees were pretextual, we do not rely on his discussion of Respondent's November and December 1970 sales figures in relation to the sales figures of the months preceding in 1970. We feel the record is not clear as to whether the sales figures of those preceding months take into account the figures of the auto dealership with which the Respondent merged in November 1970 We do adopt the Trial Examiner's findings regarding the facts that in December 1970 the five employees had ample work in progress when they were terminated and that in months prior to November and December 1970, when work had been slack in comparison, there had never been a layoff of mechanics in the service department because of lack of work The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (CA. 3) We have carefully examined the record and find no basis for reversing his findings 1. THE BUSINESS OF THE RESPONDENT The pleadings establish, and I find, that the Respondent, with its principal office and place of business located at Lawidale, California, is engaged in the sale and service of new and used motor vehicles. Respondent, in the course and conduct of its business operations, annually receives gross revenues in excess of $500,000, and annually purchases and receives goods and supplies valued in excess of $50,000 from suppliers within the State of California who have received such goods and supplies directly from outside the State of California. By virtue of its aforedescribed operations, Respondent is now, and has been at all times material, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. i The transcript of the record is corrected in accordance with the General Counsel's unopposed motion as shown in Appendix B attached to this Decision [Omitted from publication.] 194 NLRB No. 109 WEBBER AMERICAN, INC. 693 III. THE UNFAIR LABOR PRACTICES A. The Issues In issue are the following questions: (1) whether the Respondent's termination from employment of employees Robert Farrington, Gary Oler, Burt Quackenbush, Dean Saunden, and Robert Wilcox on December 15, 1970, violated Section 8(a)(1) and (3) of the Act; (2) whether the Respondent made a valid and sufficient offer of job reinstatement to Burt Quackenbush on or about January 6, 1971; and (3) whether the Respondent unlawfully interro- gated employee Richard Bush on December 14, 1970, in violation of Section 8(a)(1) of the Act. B. Preliminary Statement The Respondent operates a Toyota agency in Hermosa Beach, California, known as Webber Toyota, which is not involved in this case. Prior to November 1, 1970, the Respondent for some time had also operated an American Motors dealership known as Webber American, Inc., at Hermosa Beach. On November 1, 1970, the Respondent, having pur- chased another American Motors dealership known as South Bay American at Lawndale, California, closed down his American Motors dealership in Hermosa Beach and moved the entire operation, including its Hermosa Beach work force,, to Lawndale where operations and work force were combined under the same corporate identity of Webber American, Inc., Respondent herein. C. The Union's Organizational Drive About 10 or 12 of Respondent's employees, included among them Saunden, Wilcox, and Quackenbush, attended a union organizational meeting presided over by Union Business Representative Thomas R. Burniston at the Copper Penny, a restaurant in Hermosa Beach. Burniston discussed the advantages of union organization and passed out to those present at the meeting authorization cards and membership cards with instructions to sign the cards and return them to him with a $10 organizational fee for each applicant. Burniston received 11 authorization cards and member- ship applications together with $100 in organizational fees on December 14, 1970. On that same date, namely December 14, Burmston addressed a letter to the Respon- dent requesting recognition and bargaining. This letter was received by the Respondent on December 15, 1970, and on December 17, 19''0, Respondent's counsel replied by letter expressing doubt that the Union represented a majority of the employees in an appropriate unit and declining to recognize or bargain with the Union. Discussion of union organization and union solicitation was carried on by employees in the shop in the period from about November 18 to the second week in December and most union cards were signed on December 1 and 2, 1970. Respondent's body shop. He had attended the November 25 union organizational meeting and had signed a membership application on December 2, 1970. At the end of the workday at 9:30 p.m. on December 14, 1970, according to Bush's credible testimony, he was approached by Service Manager Gordon Olson, an admitted supervisor, who asked Bush "if there was a list, if Bush knew anything about a list going around the shop against the Company." Bush told Olson "No." Olson also asked Bush if he knew any of the names that were on the list. Bush's answer was "No." Olson inquired if Bush's name was on the list and Bush replied "No." I do not credit Olson's denial that he questioned Bush about such a "list." Olson concedes that he did converse with Bush at the end of the workday on December 14, 1970, but testified that he had learned from an insurance adjuster that Bush was intending to leave the Respondent's employ to operate another body shop. Consequently, testified Olson, "I went back to see Mr. Bush, and I asked him what was going on, and he said to me, if I remember correctly, and these were his exact words, that he didn't know what I meant by `what was going on.' I said to him that he knew what I meant." Olson concedes that in this conversation with Bush he made no mention of this reported job offer mentioned to him by an insurance adjuster, although he had that in mind as the subject of the conversation. I am unable to credit Olson's version of his conversation with Bush. It is beyond belief that Olson would have spoken in such ambiguous language as he describes if he in fact wanted to know if Bush was leaving the Respondent's employ as reported to him. Moreover, Olson's version of this conversation with Bush is more in keeping with a conversation he had with employee Gary Oler on December 15, 1970, which will be described later in this decision. I find that Olson's interrogation of Bush, abovedescribed by Bush, was calculated to learn the identity of union adherents and the extent of the union organization going on amongst the employees in the shop. This type of interrogation, I find, restrains and coerces employees in the exercise of their right to engage in union organizational activity and violates Section 8(a)(1) of the Act. Engineered Steel Products, Inc., 188 NLRB No. 52; N.L.R.B. v. Canico, Incorporated, 340 F.2d 803 (C.A. 5). This interrogation of Bush engaged in by Olson, I find, was not based on innocent curiosity but for "information most useful for discrimination." N.L.R.B. v. Firedoor Corp. of America, 291 F.2d 328, 331-332 (C.A. 2). E. The December 15, 1970, Terminations of Farrington, Oler, Quackenbush, Saunden, and Wilcox On December 15, 1970, Service Manager Olson, at about 8 a.m., notified five of its auto mechanics and body shop employees, as they arrived for work that morning, that they were being terminated and they were ordered immediately to remove their tools and return their uniforms. The circumstances surrounding their terminations are set forth in greater detail below. D. Richard Bush's Interrogation by Service Manager Olson 1. Dean Saunden Richard Bush was employed as a metal man in the Saunden had been employed by the Respondent since 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April or May 1970. He had previously worked at Respondent's Hermosa Beach dealership and was moved to the Lawndale dealership presumably on or about Novem- ber 1, 1970. Saunden had also worked for Webber Toyota, also owned by Webber, as a line mechanic, overhauling automatic transmissions, performing engine valve jobs, brake jobs, tuneups, and electrical work. When Saunden returned to Webber American, his work was primarily as a transmission expert overhauling transmissions at the Hermosa agency and subsequently at the Respondent's agency in Lawndale. Saunden was compensated strictly on a commission basis equal to 50 percent of the labor charge on any job. The labor charge is fixed by a flat rate manual issued by the manufacturer, irrespective of the actual time consumed on a job. Saunden attended the November 25 union organizational meeting at the Copper Penny restaurant. Saunden signed and turned in his union authorization and membership cards together with the $10 organizational fee to employee Phil Anderson for transmit- tal to the Union. Saunden assisted in union organization within the shop in the 2-week period from about 1 week before the November 25 organizational meeting and 1 week following it. His organizational assistance consisted in talking up the Union with other employees, among whom were Wilcox, Quackenbush, Farrington, and "about everyone." Other employees turned in their signed union cards to Saunden who in turn handed them to Phil Anderson for transmittal to the Union. On December 15, 1970, Saunden and fellow employee Wilcox rode to work together. When they walked into the front door of Respondent's showroom, they were met by Service Manager Olson who abruptly told them they were being laid off for lack of work, and they were directed by Olson to remove their tools from the shop. Olson permitted them to borrow the company truck to haul away their tools and return their soiled uniforms from their homes. This they did. Olson did not tell the two how long they would be laid off or if and when they would be recalled. On the following afternoon, December 16, Saunden and Wilcox called on Olson at the Respondent's shop to request a layoff slip and a letter of recommendation which Olson had promised for a later time. The layoff slip and recommenda- tion did not come, and Saunden again contacted Olson within a week or 10 days. Olson again promised to furnish a layoff slip and recommendation, but never kept his promise. After Saunden's December 15 termination, he was never recalled to work at the Respondent. Saunden, in the company of Wilcox on Monday, January 11, 1971, reapplied in person for work to Service Manager Olson. The two were prompted to reapply for work by a newspaper ad in the classified want ad section in a local newspaper called the Daily Breeze issued Sunday, January 10, 1971. There were two ads in this January 10 paper, one advertising for "Mechanics-Tune up man - and for Line Mechanic ; the other for an experienced metal man in the body shop. Saunden on this occasion told Olson that he had seen the ad in the newspaper and was applying for the mechanics job. Olson told Saunden the job had already been filled. On this same occasion, Wilcox applied for the metal man job in the body shop as that was his line of work. Olson told Wilcox that the position had already been filled. When Wilcox asked Olson why he had not been called back for the job, Olson replied that he was looking for someone better. Saunden testified credibly, and I find, that at the time of his termination on December 15, he was repairing a Rambler station wagon involving a complete differential overhaul and a major brake job and also was working on a Toyota that he was converting from a "drag car" into "street legal." This involved replacing the cam shaft, the air pollution equipment, and the carburetor. 2. Robert Gordon Wilcox Wilcox had been employed by the Respondent off and on since December 1969. Between December 1969 and January 1970, he was a metal man and painter in the body shop. He also worked for a while as a line mechanic and transmission man. For a while in early 1970, Wilcox worked for a Santa Monica dealer but was rehired by the Respondent in May 1970, when the Santa Monica dealer quit business. Wilcox started in May 1970 as a line mechanic but after 3 months he was transferred to the body shop. Wilcox's earnings, like that of all mechanics except the used-car and the new-car-get-ready mechanic, was computed on a commission basis equal to 50 percent of the labor cost. As was the custom with all mechanics on commission, Wilcox would receive a draw on the 15th of the month and the balance due on earned commissions at the end of the month. Wilcox attended the union organizational meeting at the Copper Penny restaurant on November 25, 1970. He did not receive an authorization or membership card at the meeting as they ran out, but Union Representative Burniston mailed a stack of blank union cards to Wilcox subsequent to the November 25 meeting. Wilcox took the cards to work and passed them out to the people who had not yet received any. Wilcox testified that there were approximately 16 people employed in the service depart- ment, namely body shop and auto mechanics. Wilcox testified credibly and without contradiction that he talked to other employees in the shop about the pros and cons of the Union, and he spoke up in favor of the Union because of the Kaiser Insurance feature providing for cosmetic surgery which he personally needed. Wilcox testified that he spoke favorably for the Union to Bob Farrington in connection with the Kaiser Insurance feature, and also to Bush and Willis and to everyone in the body shop. Wilcox credibly testified that he saw some of the employees sign their union cards in their work stalls. Wilcox turned in his signed union cards and $10 organizational fee to Dean Saunden. As I have set forth earlier in this decision in connection with Dean Saunden's termination, Wilcox and Saunden were terminated at 8 a.m. on December 15, 1970. According to Wilcox's credible testimony, Service Manager Olson called Saunden and Wilcox aside and told them that due to lack of work, they were going to have to let some employees go, and "we were to be let go." Wilcox asked Olson if he wanted him to go ahead on the cars that he had started, to which Olson replied "No, just to get my tools together and get out of the shop." Wilcox testified, and I WEBBER AMERICAN, INC. find, that he had work yet to be done at the shop as follows: a car in his stall requiring the installation of two new car doors and pulling out of the post, and in addition eight other cars in the process of completion on which he had been working. Wilcox and Farrington, who was also terminated that same morning, were given permission to use the company parts truck to haul their tools home and to return to the shop with their uniforms. Olson at first promised to give Wilcox a layoff slip but later refused, to give him one with the remark that it wasn't necessary. Olson instructed Wilcox to "flag out" 2 his work with Ted Smith, the body shop manager. While so engaged with Smith in the body shop office, a customer came in to request body work on his car. Smith told the customer that "He was having a personnel problem and he couldn't do it; that there was no one to paint his car," and at this point the customer left the shop. I have already related earlier in this decision the applications for work made by Saunden and Wilcox3 on January 11, 1971. Wilcox testified that as soon as Service Manager Olson saw him and Saunden get out of their car, Olson came running out to the car and inquired what they wanted there. When Olson told the two men that the advertised jobs had already been filled, Wilcox asked Olson why only two of the body shop stalls had tools in them if the jobs had already been filled, but Olson just turned around and walked off. 3. Gary Oler Oler started working for the Respondent in November 1970 as a new-car-get-ready man 4 at a flat salary of $700 per month. Previously, he had been employed by Webber Toyota and was transferred from that dealership agency to the Respondent's business at Lawndale. Oler did not attend the November 25, 1970, union organizational meeting. He obtained the union membership and authorization cards from Robert Wilcox, completed them and returned them to Dean Saunden who handed them over to Phil Anderson together with the $10 organizational fee. Oler arrived at work at 8 o'clock on the morning of December 15, 1970, and went to the showroom to punch in and could not find his timecard. Olson called Oler over and told him that he had the timecard, and he was sorry but he had to terminate Oler for lack of work. Oler asked if that was the reason he was being terminated and Olson replied, according to Oler's credible testimony, "yes because of lack of work and also that he was just following orders." Olson told Oler to remove his tools and return his uniforms to get his check. When Oler returned to the shop that same day, Gordon approached Oler to talk to him. Oler credibly testified as follows: "He (Olson) asked me what was going on. I told him that he probably knew what was going on." When Oler went into John Willis' work stall to talk to him, Olson came over and told Oler not to talk to the employees. Oler then sat on the shop steps and waited and, while sitting there, Olson, according to Oler's credible testimony, asked him two more times what was going on to which Oler 2 "Flag out" means to compute amount of commission earnings 3 Wilcox was applying for the metal man's job in the body shop 4 The new-car-get-ready man checks the new cars coming in from the factory to see that they are mechanically fit in every respect before delivery 695 replied that Olson "knew what was going on." Oler asked Olson why he was firing so many people and whether he didn't think he had enough men to cover the work that he had, and Olson replied that "he had enough employees to cover it until business picked up again, and I believe he mentioned that he was only following orders." Oler told Olson it was a poor time to be fired, that is, just before Christmas, and Olson again told Oler "that he was dust following orders." Concerning work to be done when he was terminated on December 15, Oler credibly testified, and I find, that "we had six cars from the Rambler factory, and I was told to go through them and order parts for them, and when the parts were to come in, I was to put them together in my spare time.. . . I had plenty of work and this was as of December 15." Oler pointed out in his testimony, which I credit, that the new model 1971 cars had been coming in rapidly and it was his job to get them ready "so that there will be enough cars in stock and so that we can sell them without waiting for them." 5 Olson on December 15 did not tell Oler how long he would be out of work. Within 3 or 4 days after his termination, Oler found employment with another automo- bile dealer. On January 6, 1971, Olson came out to Oler's new place of work and asked Oler if he would like his old job back. Oler declined the offer, and told Olson that he was now working for $800 a month and he would not return for $700 a month. 4. Robert Farrington Farrington had been employed by the Respondent since February 1970 and worked continuously until his termina- tion on December 15, 1970. He was a painter in the body shop, and he was paid on a commission basis equal to 50 percent of the customer labor charge. He received no salary or guarantee. He did not attend the November 25, 1970, union organizational meeting at the Copper Penny restaurant. He received authorization and membership cards from employee John Willis and signed and returned them to Willis on December 2, 1970. Willis advanced the $10 organizational fee for Farrington who repaid Willis. Concerning his termination on December 15, 1970, Farrington testified that he came in to work that morning with Robert Wilcox and Dean Saunden. Olson called Wilcox and Saunden aside and told them that due to lack of work, he was going to have to terminate some people. Farrington credibly testified that he went to the body shop where John Willis, -another body shop employee, asked if Farrington had been fired. Farrington replied "not yet." Farrington then sought out Body Shop Manager Ted Smith to inquire if he was to be fired. Smith told Farrington that Olson said he (Farrington) was questionable. At 9 o'clock that same morning, Olson told Farrington "that due to lack of work, they were going to have to terminate some people." Farrington said "O.K." Olson did not tell Farrington that he would be called back. While Farrington was gathering up his tools, he asked Olson what was going to the customer. 5 Oler testified without contradiction that on December 15, Olson knew that Junius Pete, who helped O1er on new-car-get-ready, was quitting after Christmas, having been so notified by Pete 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on and Olson's reply was that it was "lack of work which was the reason for the termination." Farrington told Olson that he did not think it was lack of work in the paint shop. Olson replied that was all he could tell him. Farrington testified credibly that at the time of his termination on December 15, he had three or four spot jobs and a few cars to buff, which he had previously painted and needed further work. Farrington testified that this was not a slack period for him, it was an average period for volume of work. On New Year's Eve, December 31, 1970, Olson called Farrington at his home and asked him to return to work. Farrington accepted the offer and returned to work with the Respondent on January 5, 1971, as a painter, and at the time of the hearing was still in Respondent's employ. 5. Burt Quackenbush Quackenbush had been in Respondent's employ from February 15, 1970, to December 15, 1970. He had previously been employed by the Respondent at the Hermosa Beach store, and he moved to the Lawndale store when the Respondent bought out South Bay American in November 1970. His job was auto mechanic, working on air-conditioning installations, tuneups, brakes, lubrication, front end, etc. He started at the Lawndale store as a line mechanic, was moved to the lubrication stall when the lubrication man left and then to the tuneup when the tuneup man left. Quackenbush's earnings were computed on a commission basis equal to 50 percent of the customer labor charge. He attended the union organizational meeting at the Copper Penny restaurant on November 25, 1970, and turned in his signed umon,membership and authorization cards to fellow employee Saunden. When Quackenbush arrived at work at 8 a.m. December 15, 1970, he was met at the showroom door by Olson who told him that there was a lack of work and certain employees were to be terminated. Quackenbush replied that he supposed that he was one of them and Olson said he was right. Olson told Quackenbush to roll up his tools and turn in his timesheets and get out of the place as soon as possible. Quackenbush testified credibly that his work was not slack and he considered it a peak period. He further testified, and I find, that at the time of his termination on December 15, he had a Chevrolet in his stall with a long list of things to be done that he had not yet begun, and this work had been assigned to him the previous day. In addition, he had a Rambler on which to install an antenna, and a Jaguar which required work and an Oldsmobile which he had not completely finished working on. Subsequent to his termination by the Respondent, Quackenbush found employment with a Chrysler-Plym- outh dealer. On January 6, 1971, Olson called on Quackenbush at his new place of work and offered him his job back with the Respondent. Quackenbush at the moment was unprepared to give a definite answer to Olson's offer. Olson told Quackenbush he would be there only a short time, only 5 minutes, and he wanted an answer as he had other applications for thejob and was in need for someone to fill the position immediately. Quackenbush told Olson he had a very bad taste in his mouth about Webber American and that he would like to give him an answer sometime later. Pressed for an immediate answer, Quacken- bush told Olson that he liked the job and could not decide that fast, but under the circumstances he was not going back to work for him. I agree with the General Counsel that a valid offer of reinstatement was not made to Quackenbush who was given only 5 minutes to make his decision to accept or decline, notwithstanding the fact that Quackenbush was undecided and informed Olson he needed more time to decide. See Betts Baking Co., 173 NLRB No. 157; Harrah's Club, 158 NLRB 758; Thermoid Co., 90 NLRB 614; Collins Mining Co., 177 NLRB No. 55; Portage Plastics, 163 NLRB 753. Respondent's assigned reasons for the terminations of Saunden, Wilcox, Oler, Farrington, and Quackenbush Service Manager Olson testified that on December 14, 1970, he held a meeting with Mr. Webber and in that meeting recommended the layoff of some employees on the basis of Olson's conclusion that there was going to be a definite decrease in business in December. Mr. Olson testified concerning his December 14 , meeting with Mr. Webber as follows: I showed him the amount of personnel that we had brought over from the old dealership into the new dealership, and based on the downward trend of business, the layoffs in the aero-space business, and Christmas coming up, that if we were going to operate for that month and be able to operate, we were going to have to cut some personnel. Reiterating his reasons for the terminations, Olson testified later in the hearing as follows: ... Mr. Webber and I together decided that we had to make some cut backs, because of the lack of work for an economy move, and because of Christmas, and because of the aerospace industry cutting down. Mr. Webber did not decide who it would be. This is my job, and this is left up to me. I have concluded that the reasons asserted by Olson in justification of the five terminations do not withstand scrutiny and are not supported by the facts. Company records clearly show that at the time of the layoffs there was no diminution in the dollar volume of auto mechanics or body shop repair. (See Appendix A attached hereto for a tabulation of customer mechanical labor, customer body shop labor, labor factory claims and totals thereof for the months of February 1970 through February 1971.) Indeed, the month of November 1970, which was the last complete month prior to the Respon- dent's December 14 decision to terminate the five employees involved in this case, had the greatest dollar volume of labor sales of any of the other months in the 13- month period, February 1970 through February 1971. Even though December 1970's sales were necessarily diminished due to the layoff of the five mechanics on December 15, 1970, December sales still exceeded the sales of six other months shown in Appendix A, namely the months of February, March, April, May, June, and September 1970. Even when the labor sales in months prior to November WEBBER AMERICAN, INC. 1970 dropped in volume to almost one-half of the November 1970 sales, no layoffs or terminations of employees were effectuated. Indeed, the evidence is undisputed that in the history of the Respondent, there had never been a layoff of mechanics in the service department for lack of work, notwithstanding that there had been occasions when work had been slack in comparison with the situation in November and December 1970. It is clear, not only from company records, that work had not fallen off in December 1970, but also from the credible and uncontradicted testimony of the five service mechanics involved herein, that they had ample work in process when they were terminated on December 15, 1970. Especially in view of the fact that four of the terminated mechanics were paid strictly on a commission basis equal to 50 percent of the customer labor charge, there was no economic reason to terminate these four employees, as the Respondent would have lost nothing by their retention. With respect to two other reasons assigned by Olson in justification for the December 15 terminations, namely the cutbacks in the aerospace industry, and because Christmas was near, I have concluded that in asserting those as justifiable reasons, Mr. Olson was indulging in sheer sophistry. Although there was no evidence to support the nature and extent of the cutbacks in the aerospace industry, it is clear from the record that the parties and the Trial Examiner were aware from newspaper accounts over the past year or two that the aerospace industry was in a recession. But there was no evidence that this aerospace recession which had prevailed for many, many months, resulted in a decline in business in November or December 1970. As I have pointed out above, the contrary was true and November 1970 was an outstanding month in volume of auto repair labor sales. Attributing the December 15 terminations to the approach of Christmas is likewise an asserted reason without factual support in the Respondent's decision to terminate the five employees involved. Christ- mas was as irrelevant to their terminations as the preceding Fourth of July. The work was in the shop to be done, and in refutation of the asserted reason of lack of work, it appears in the record without dispute that in December 1970 and January 1971, the Respondent was actively recruiting help, among other means, through newspaper advertisements in the help wanted columns of the Daily Breeze for porters, a used-car mechanic, a tuneup mechanic, a line mechanic and a body shop man. The merger of the two stores' into the single American Motors dealership at Lawndale, with Respondent's pur- chase of South Bay American, it is clear, did not diminish the volume of work of the Respondent. Furthermore, in the process of the merger or shortly thereafter, a number of employees acquired from South Bay American left, namely Richard Bush, Junius Pete, Fred, the tuneup man, and a lube man left. Additionally, as I repeat here, at the time the Respondent was terminating the five men involved in this case allegedly for "lack of work," it was advertising for and hiring mechanics. Moreover, the hasty recall of three of the terminated men in the first week of January 1971 refutes the Respondent's contention that there was a lack of work 697 on December 15, 1970. The conduct of Olson in abruptly terminating the men on December 15, his brusque insistence that they remove their tools and return their uniforms immediately, his failure to tell them that they would be recalled, his insistence that Oler not talk to another employee after his termination, and his oblique interrogation of Bush on December 14 and Oler on December 15 concerning the men's union activities, further persuade me that the five terminations were motivated by the Respondent's determination to chill and destroy the Union's organizational campaign. Conclusionary Findings I find, on all of the attendant circumstances, that the Respondent was aware of the union organizational campaign being conducted by the service department employees on the Respondent's premises. There was no effort to conceal the union activity and it was carried on openly with discussion, card solicitation, and card signing in the shop. It is reasonable to infer from the nature of the union activity and the small size of the shop 6 that the Respondent was aware of the union organizational efforts. This fact of company knowledge is further buttressed by Olson's interrogation of Bush on December 14 concerning "a list going around the shop against the Company," and his interrogation of Oler on December 15 several times as to "what was going on." A mass layoff at the outset of a union organizing campaign is a not uncommon and effective tactic to thwart it. See for example N.LR.B. v. Sun Hardware Company, Inc., 422 F.2d 1296, 1297 (C.A. 9); N.L.R.B. v. Tak Trak, Inc., 293 F.2d 270 (C.A. 9). In the instant case, the Respondent terminated one-third of its service and body shop mechanics at the height of the union campaign and on the same day it received the Union's December 14, 1970, letter requesting recognition and bargaining. The timing of such conduct is highly suspect and supports an inference of discriminatory motivation. N.L.R.B. v. Montgomery Ward & Company, 242 F.2d 497, 502 (C.A. 2); N.L.R.B. v. Lively Service Co., 290 F.2d 205 (C.A. 10). It is well established that it is not necessary to show that the employer knew that those he laid off had signed union authorization cards. N.L.R.B. v. Tepper, 297 F.2d 280 (C.A. 10). I agree with the General Counsel that a "show of force" designed to discourage union activities is sufficient to violate Section 8(a)(3) of the Act. Majestic Molded Products, Inc. v. N.L.R.B., 330 F.2d 603, 606 (C.A. 2); N.L.R.B. v. Piezo Manufacturing Corp., 290 F.2d 455 (C.A. 2); N.L.R.B. v. Sun Hardware Company, Inc., 422 F.2d 1296, 1297 (C.A. 9). I find that the reason advanced by the Respondent that the layoff was for "lack of work," was pretextual and unsupported by the facts which showed the opposite to be the fact. Accordingly, I have concluded that the terminations from employment of Farrington, Oler, Quackenbush, Saunden, and Wilcox on December 15, 1970, were made by the Respondent in violation of Section 8(a)(1) and (3) of the Act. 6 See, for example, Wiese Plow Welding Co, 123 NLRB 616, and Carbet Corp, 191 NLRB No 145. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFIOR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully terminat- ed Robert Farrington, Gary Oler, Burt Quackenbush, Dean Saunden, and Robert Wilcox in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that the Respondent offer Saunden, Wilcox, and Quackenbush immediate reinstatement to their jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay each may have suffered by reason of their terminations, from the date thereof to the date on which each is offered reinstatement as aforesaid. As Robert Farrington has been already reinstated to his job and Gary Oler has already declined a valid offer of reinstatement, it will not be necessary for the Respondent to again offer those two individuals reinstatement. However, having found that the Respondent's offer to Quackenbush did not constitute a valid offer of reinstatement because it did not afford him a reasonable time to make a decision on the reinstatement offer, I have herein recommended that he be offered reinstatement and backpay as above set forth. I shall also recommend that Robert Farrington and Gary Oler be made whole for any loss of earnings sustained from the date of their termination to the date of the Respon- dent's reinstatement or offer of reinstatement, as the case may be. Such loss of earnings, if any, shall be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Webber American, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the tenure of employment of Robert Farrington, Gary Oler, Burt 7 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Quackenbush, Dean Saunden, and Robert Wilcox, because of their union activity and because they, together with other employees, engaged in protected, concerted activities guaranteed by Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and Section 8(a)(1) of the Act. 4. By interrogating Richard Bush concerning his union activity and sympathies as well as the union activity of other employees, the Respondent interfered with, re- strained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 7 ORDER Webber American, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating with respect to the hire and tenure of employees because of their union activity or the exercise of rights guaranteed by Section 7 of the Act. (b) Coercing and restraining its employees from engaging in union activities and the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which, I find, will effectuate the policies of the Act: (a) Offer Dean Saunden, Robert Wilcox and Burt Quackenbush immediate reinstatement to their jobs, or if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges as provided in section V above entitled "The Remedy," and make each of them, as well as Robert Farrington and Gary Oler, whole for any loss of earnings sustained by reason of Respondent's discrimination against them according to the formula and method prescribed above in section V, the remedy. (b) Preserve until compliance with any order for reinstatement or backpay made by the National Labor Relations Board in this proceeding is effectuated, and make available to the said Board or its agents, for examination and copying, all payroll records,' social security records, timecards, and personnel records which may be relevant to a determination of the amount of backpay due, and to the reinstatement and related rights provided by such order. (c) Notify Dean Saunden, Robert Wilcox, and Burt Quackenbush, in the event that they are now 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 of 1948, as amended, after discharge from the Armed Forces. Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. WEBBER AMERICAN, INC. (d) Post in conspicuous places at the Respondent's place of business in Lawndaie, California, including all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix C."8 Copies of said notice to be furnished by the Regional Director for Region 31 of the National Labor Relations Board, shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in such conspicuous places. Reasonable steps shall be taken by the said Respondent to insure that said notice is not covered, altered, or defaced by any other material. 699 (e) Notify the Regional Director for Region 31, in writing, within 20 days from the date of the receipt of a copy of this Decision, what steps the Respondent has taken to comply therewith.9 8 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 be changed to read "Posted pursuant to a judgment of the United States Court of Appeals enforcing an order of the National Labor Relations Board." 9 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply therewith." APPENDIX A Customer Mechanical Labor Customer Body Shop Labor Labor Factory Claims Totals of Sales 1970 Sales Sales Sales Totals January -0- -0- -0- -0- February $2,017.43 $5,740.07 190.00 $ 7,947.50 March 1,430.90 7,335.59 455.60 9,222.09 April 1,872.72 7,933.83 304.40 10,110.95 May 3,385.96 4,918.33 1,028.10 9,332.39 June 3 ,434.66 4,281.37 959.80 8 , 675.83 July 2 ,894.38 6,594.83 1,181.20 -10,670.41 August 3 , 882.15 6,808.53 1,513 . 80 12,204.48 September 1,904.80 4,491.84 1,117 . 80 7,514.48 October 8,621.14 4,080.06 927.50 13,628.70 November 6,085.63 7,487.13 1,792 . 70 15 , 365.46 December 5,034.98 4,378.53 1,098 . 70 1.0,512.21 1971 January 6 ,047.08 5, 080.65 1,480 . 30 12,608.03 February 5,946.36 8,329.76 50.40 14,326.52 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX C NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government well as Gary Oler and Robert Farrington, whole for any loss of earnings sustained by reason of our discrimina- tion against them, as described in section V entitled "The Remedy" herein. WEBBER AMERICAN, INC. (Employer) WE WILL NOT discharge , lay off, terminate, or refuse to hire or otherwise discriminate in regard to the hire and tenure of employment or any term or condition of employment of our employees because of their membership in and activities on behalf of International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization of their choice. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organiza- tions, including the Union herein, to bargain collective- ly through a bargaining agent chosen by our employees, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. WE WILL offer to Dean Saunden , Robert Wilcox, and Burt Quackenbush immediate reinstatement to their jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make each of them, as Dated By (Representative) (Title) WE WILL notify immediately Dean Saunden, Robert Wilcox, and Burt Quackenbush, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended. 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, 10th Floor, Bartlett Building, 215 West Seventh Street, Los Angeles, California 90014, Telephone 213-688-5850.