Krebs and King Toyota, Inc.

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Krebs and King Toyota, Inc. and International Associ- ation of Machinists and Aerospace Workers, Dis- trict No. 63, AFL-CIO. Case 6-CA-5475 June 13, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On December 22, 1971, Trial Examiner John F. Funke issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions 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, cross-exceptions, and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order, as modified herein. We agree with the Trial Examiner that the Respondent engaged in unlawful interrogation of employees in violation of Section 8(a)(1) of the Act, that it discharged Lesic in violation of Section 8(a)(3), and that it refused to bargain with the Union in violation of Section 8(a)(5). Contrary to the Trial Examiner, however, we find that the Respondent also violated the Act by shutting down the body shop. About 2 miles from its main place of business, where it sold new and used cars and operated a service and parts department, Respondent main- tained its body shop, wherein it employed Supervisor Gallenz and employees Moody and Wilson. When the employees went on strike on April 20 to protest the suspension of Lesic, Respondent subcontracted its body repair work. On April 28, Respondent was notified by its landlord that its lease at the main place of business would not be renewed and that it would have to vacate the premises by June 30. Respondent then moved the business it was conduct- ing at the main building to the body shop location. By the date of the hearing in this case (November 1971), it had moved the service department from the body shop location into a new building, the construc- tion of which was begun in November 1970 and was originally intended to be a new body shop. I The Respondent's request for oral argument is hereby denied as, in our opinion , the record in this case, including the exceptions , cross-exceptions, and briefs, adequately presents the issues and positions of the parties 2 On an earlier occasion , Gallen told Krebs that he would not return to On May 6, Krebs, Respondent's president, asked Gallenz if he was coming back to work. Gallenz expressed a willingness to return to work immediate- ly if Krebs would "let the Board settle it." 2 Krebs then told Gallen that no union was going to tell him how to run his shop and that Gallenz had better look for a new job because he was closing the body shop. Krebs own further testimony is that, if the body shop personnel had returned to work as requested, the body shop would be running-"We would have had to move the body shop." On May 11, 1971, the Union's representative, accompanied by all of the striking employees, met with Krebs in an effort to settle the strike. Krebs agreed that all employees could return, except Lesic and the body shop men because the body shop was closed.3 Respondent has continued to subcontract its body shop work. The Trial Examiner's conclusion on this issue is that, "Until the new building is completed and occupied the farming out of the work is due to economic necessity." As already noted, this is not our understanding of the record. While the initial decision to subcontract resulted from the strike, that, of course, has not been the reason for the continua- tion of Respondent's subcontracting. Nor do we agree with the Trial Examiner to the effect that the subcontracting continues because of the lack of space for body work and only until the new building is completed. For, by May 6, on the occasion of the Krebs-Gallenz conversation reported above, Respon- dent was fully aware of the space problem confront- ing it. Yet it was prepared to make arrangements for the resumption of body work, if the body shop employees would return to work. But when Krebs learned from Gallen that the employees were willing to return to work if Krebs would "let the Board settle it," Krebs thereupon announced to Gallenz that he was closing the body shop. The reason therefor, given by Krebs himself, was that no union was going to tell him how to run his shop. On May 11, when the Union sought the return to work of the body shop employees, together with the other strikers, it was told for the first time that the body shop was closed. The service department has moved into the building originally intended to house a new body shop and Respondent continues to subcontract body work. We are persuaded by this evidence that Respon- dent has shut down its body shop operation, that this shutdown was unlawfully motivated, and that the employment of the body shop employees has thereby work without union representation It was Krebs' understanding that Moody and Wilson would not return to work without Gallenz 3 In view of our disposition of this case , it becomes unnecessary to decide whether the stoke was an economic or unfair labor practice strike. 197 NLRB No. 74 KREBS AND KING TOYOTA, INC. been terminated, all in violation of Section 8(a)(3) of the Act.4 Although we agree with the Trial Examiner that Respondent violated Section 8(a)(5) of the Act and that a bargaining order should issue, under Gissel,5 we do not rely, as he did, solely upon the fact that the Union represented a majority of Respondent's employees and that Respondent had no reason to doubt this fact. We take into account also the serious unfair labor practices committed by Respondent following its denial of recognition to the Union, including the coercive interrogation of employees, the discriminatory discharge of Lesic, and the unlawful shutdown of the body shop. THE REMEDY Having found, contrary to the Trial Examiner, that the Respondent unlawfully shut down its body shop and terminated the personnel therein, we shall modify his recommended Order accordingly. Thus, we shall order the Respondent to offer Moody, Wilson, and Gallenz immediate and full reinstate- ment and make them whole for any loss of pay they may have suffered from the date of their unlawful termination until they are offered reinstatement. Their backpay shall be computed according to the same formula and method as recommended by the Trial Examiner with respect to Lesic. To the extent necessary to effectuate such reinstatement, we shall order the Respondent to resume its body shop department and discontinue the subcontracting of such work.6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Krebs and King Toyota, Inc., Pittsburgh, Pennsylva- nia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (b) Discouraging membership in International Association of Machinists (a) Coercively interrogating its employees regard- ing their union activity. and Aerospace Workers, District No. 63, AFL-CIO, or in any other labor organization of its employees, by discharging, sub- contracting, or in any other manner discriminating 4 In agreement with the contention of the General Counsel, we find the termination of Supervisor Gallenz to have violated Sec 8(a)(1) To Respondent's knowledge, Gallen, boss of the body shop, spoke for the striking body shop employees and, by his discharge, Respondent effectuated its decision to close the body shop operation because of the employees' union adherence Contrary to the position taken by our dissenting colleague, therefore, it may be said of Gallenz' discharge, as was said of the discharge of the supervisors in Pioneer Drilling Co, Inc, 162 NLRB 918, 463 against its employees with respect to the hire, tenure, or any term or condition of employment. (c) Refusing to recognize and bargain with the Union as the exclusive representative of its employ- ees in the following appropriate unit: All automotive mechanics, body and fendermen, apprentices, helpers, lubricators, lot boys, recon- ditioners, partsmen, parts truck drivers, car jockies, and all other employees in the service department, excluding all office clerical employ- ees, professional employees, watchmen, guards, salesmen, and supervisors as defined in the Act. (d) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their right to self-organization to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer John Lesic immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without preju- dice to his seniority and other rights andprivileges, and make him whole for any loss of earnings or other monetary loss he may have suffered by reason of the discrimination against him, in the manner set forth in the Trial Examiner's Decision. (b) Offer James Moody, Robert Wilson, and William Gallenz immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, taking all steps necessary to effect such reinstate- ment, as provided in the section above entitled "The Remedy," and make them whole for any loss of earnings or other monetary loss they may have suffered by reason of their unlawful termination, in the manner specified in "The Remedy" section. (c) Notify John Lesic, James Moody, Robert Wilson, and William Gallenz, if presently serving in the Armed Forces of the United States, of their right 923, that it was "an integral part of a pattern of conduct aimed at penalizing employees for their union activities." Enfd. in pertinent part 391 F 2d 961 (C A 10) In view of our unfair labor practice findings herein and the order we are issuing to remedy them, we need not decide whether Respondent's shutdown also violated Sec 8(a)(5) 5 N L R B v Gissel Packing Company, Inc, 395 U S 575. 6 Larry Barns Chevrolet Company, 174 NLRB 818, 822 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to full reinstatement, upon application after dis- charge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records relevant and necessary for a determination of the amounts of backpay due under the terms of this Order. (e) Upon request, bargain collectively, with Inter- national Association of Machinists and Aerospace Workers, District No. 63, AFL-CIO, as the exclusive representative of its employees in the unit found appropriate herein, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (f) Post at its place or places of business at Pittsburgh, Pennsylvania, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous 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. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER KENNEDY, concurring in part and dissenting in part: I agree with the majority decision except that part which finds that the discharge of Supervisor Gallenz violated Section 8(a)(1) of the Act. It is well established that the discharge of a supervisor for engaging in union activities is not unlawful.8 However, in certain circumstances the Board and the courts have found that the discharge of a supervisor is violative of Section 8(a)(1) of the Act where it interferes with, restrains, or coerces rank-and-file employees in the employment of their rights secured under the statute .9 Thus an employer 7 In the event that this 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." 8 N L R B. v. Big Three Welding Equipment Company, 359 F.2d 77 (C.A. 5), Oil City Brass Works v. N LR.B, 357 F.2d 466 (CA. 5); Hook Drug has been found to have violated Section 8(a)(1) by discharging a supervisor because he refused to engage in unfair labor practices at the behest of the employer,10 or because the supervisor gave testimony adverse to the employer in a Board proceeding," or because the employment of rank-and-file employees was dependent on the employment of the supervisor and the employer discharged the supervisor not because of his own prounion activities but in order to get at the prounion' rank-and-file employees-12, In all these cases the rationale for finding a violation of Section 8(aX1) in the discharge of the supervisor is not that the discharge-puts rank-and-file employees in fear or that it is part of a pattern of conduct, but that it interferes with the Section 7 rights of rank-and-file employees. As stated by the court in the Oil City Brass Works case (357 F.2d at 470): ... [W ]nether rank-and-file employees would be put in fear by [the supervisor's] discharge is irrelevant and merely clouds the real issue. Any time an employee, be he supervisor or not, is fired for union activity rank-and-file employees are likely to fear retribution if they emulate his example. But the Act does not protect supervisors, it protects rank-and-file employees in their exercise of rights. If the fear instilled in rank-and-file employees were used in order to erect a violation of the Act, then any time a supervisor was discharged for doing an act that a rank-and-file employee may do with impunity the Board could require reinstatement Carried to its ultimate conclusion, such a principle would result in supervisory employees being brought under the protective cover of the Act Congress has declined to protect supervisors and the courts should not do by indirection what Congress has declined to do directly. The majority's reliance on the Pioneer Drilling case13 to justify the finding of an unlawful discharge of Supervisor Gallenz is misplaced, in my opinion. In Pioneer Drilling, the discharge of supervisor-drillers was found to be unlawful because it was a pretext for getting rid of the prounion crews of the drillers by taking advantage of the industry custom that when drillers were terminated their crews were also terminated. As found by the Board in that case, the employer's conduct was motivated not by the prounion activities of the supervisor-drillers but by that of the rank-and-file employees; the supervisors Inc., 191 NLRB No. 45; Royal Fork of Waskngtms h w- 179 NLRB 185. 9 Oil City Brass Works v. NLR.B supra 471. 10 N_LR.R v. Talladega Canon Factory; 213 F.2d 2119 (CA. 5). Il Oil City Brass Works v. N LR.R, supra N_LR.R v. Better Monkey Grip Company, 243 F.2d 836 (CA. 5), art. denied 353 U.S. 864. u Pioneer Drilling Co_ Inc v. I' L2R. 391 F.2d 961 (CA. 10). u Id KREBS AND KING TOYOTA, INC. became not the object but rather a conduit of the employer's unlawful acts. In contrast, here, Supervi- sor Gallenz appears to have been not a conduit but the leader of the prounion employees in his shop. He told Respondent that he would not return to work without union representation or without an agree- ment to let the Board settle the dispute. Respondent thereupon said that it would close the shop. Thus the case falls squarely within the rule that the discharge of a supervisor for engaging in union activities is not unlawful. I would therefore dismiss the complaint insofar as it alleges that the discharge of Gallenz was violative of Section 8(a)(l). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively question our employ- ees concerning their union activity. WE WILL NOT discourage membership in International Association of Machinists and Aerospace Workers, District No. 63, AFL-CIO, or in any other labor organization of our employees, by discharging, subcontracting, or in any other manner discriminating against our employees because of their union activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to, self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage . in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or the right to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. WE wr L offer full and immediate reinstate- ment to John Lesic to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and pay him for any loss of earnings he may have suffered as a result of his discharge, with interest at 6 percent per annum. WE WILL offer full and immediate reinstate- ment to James Moody, Robert Wilson, and William Gallenz to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and 465 other rights and privileges, and reimburse each of them for any loss of earnings he may have suffered as a result of his discharge , with interest at 6 percent per annum. WE WILL, upon request, bargain with Interna- tional Association of Machinists and Aerospace Workers, District No. 63, AFL-CIO, as the exclusive bargaining representative of our em- ployees in the unit found appropriate concerning rates of pay, wages, hours of employment, and other terms and conditions of employment. If we reach agreement we will sign a contract with the above-named Union covering the terms of such agreement. The appropriate unit is: All automotive mechanics , body and fender- men, apprentices, helpers, lubricators, lot boys, reconditioners, partsmen, parts truck drivers, car jockies, and all other employees in the service department, excluding all office clerical and professional employees, watchmen, guards, salesmen and supervisors as defined in the Act. KREBS AND KING TOYOTA, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the 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. 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 compli- ance with its provisions may be directed to the Board's office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: This proceeding was brought before the National Labor Relations Board upon: 1. A charge filed April 20, 1971, by International Association of Machinists and Aerospace Workers, Dis- trict No. 63, herein the Machinists, against Krebs and King Toyota, Inc., herein the Respondent, alleging Respondent 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated Section 8(a)(1) and (3) of the Act by suspending John Lesic. 2. An amended charge filed May 6, 1971, by the Machinists against Respondent alleging Respondent vio- lated Section 8(a)(1), (3), and (5) of the Act by suspending Lesic and by refusing to bargain with the Machinists. 3. A second amended charge filed May 17, 1971, by the Machinists alleging Respondent violated Section 8(a), (1), (3), and (5) as aforesaid and by refusing to reemploy three employees. 4. A complaint and notice of hearing by the General Counsel alleging Respondent violated Section 8(a)(1), (3), and (5) of the Act, dated July 30, 1971. 5. Answer by Respondent denying the commission of unfair labor practices, dated September 16, 1971. 6. Notice of intention to amend the complaint by the General Counsel, dated October 20, 1971.1 7. Hearing was held by me at Pittsburgh, Pennsylvania, on November 2, 1971. 8. Brief received from the General Counsel on Decem- ber 7, 1971. Upon the entire record in this case2 and from my observation of the witnesses while testifying, I make the following: FINDINGS 1. THE BUSINESS OF RESPONDENT Respondent is a Pennsylvania corporation with its principal place of business at Pittsburgh, Pennsylvania, where it is engaged in the sale of new and used automobiles and accessories. During the 12-month period prior to issuance of complaint, Respondent had a gross volume of business exceeding $500,000 and purchased goods in excess of $50,000 from places outside the Commonwealth of Pennsylvania for sale at Pittsburgh. Respondent is engaged in commerce within the meaning of the Act. H. LABOR ORGANIZATION INVOLVED The Machinists is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts 1. Violation of Section 8(a)(5) Leonard M. Schloer, organizer for the Machinists, testified that on March 13, 1971,3 he received a telephone call from John Lesic, a mechanic employed by Respon- dent, asking for information about starting a union in the agency. On March 18, a meeting was held at the Machinists lodge attended by six mechanics employed by I The motion to amend the complaint to allege the discriminatory discharge of Lesic was granted. The complaint was further amended at the hearing to add par 18A, alleging the contracting out of body shop work without prior consultation with the Machinists The motion was granted and the answer amended accordingly 2 The motion of the General Counsel to correct the record is granted and the record amended accordingly Respondent. Contracts and procedures were discussed and the employees signed authorization cards. The next day, Schloer went to Respondent's place of business and picked up two more cards from Lesic and two more from the body shop.4 Schloer then went to the office, together with Paul Molder, financial secretary of the lodge, and met William A. Krebs, one of Respondent's co-owners, told him a majority of the employees had signed authorization cards and requested recognition as bargaining representative. Krebs examined the cards and then refused recognition on the ground that there should be a National Labor Relations Board election. Schloer left with Krebs a copy of a recognition agreement (G. C. Exh. 2) and on March 24 sent Krebs a letter demanding recognition. (G. C. Exh. 3.) The unit requested: ... all automotive mechanics, body and fendermen, apprentices, helpers, lubricators, lot boys, recondition- ers, partsmen, parts truck drivers, car Rockies and all other employees of the service department, excluding all office clerical and professional employees, watch- men, guards, salesmen and supervisors as defined in the Act. This unit is found appropriate for the purposes of collective bargaining.5 On March 29, the Machinists filed a petition for an election pursuant to Section 9 of the Act and on August 2 the Regional Director for Region 10 issued an order permitting withdrawal of the petition. On the basis of the foregoing, it is found that the Machinists represented a majority of the employees of Respondent in a unit appropriate for collective bargaining, made a demand for recognition, and that recognition was refused. The issue raised by the discontinuance of the body shop operation will be discussed in that part of this Decision entitled "The Body Shop," infra. 2. Violations of Section 8(a)(1) The General Counsel produced two witnesses who testified that they were interrogated by William Krebs as to their union activity. James E. Wood, employed as a mechanic, testified that on March 19, after Schloei had made his demand for recognition, he was called into Krebs' office and asked where he had signed the authorization card and where the meeting had taken place. His reply was that he did not know. William Lee Stover,6 also a mechanic, testified that on the same day Krebs came to the place where he was working, took him to the office, and asked him where "we had signed the cards." Stover told him it was down at the union "board" and when Krebs asked him what he was trying to do, told him he had just been put on flat rate. Krebs then told him he could go back to hourly or stay on 3 Unless otherwise noted, all dates refer to 1971. 4 It was stipulated at the hearing that 9 of the 10 mechanics signed authorization cards on either March 18 or 19 and that the two body men signed cards. The Machinists therefore had a majority of II of the 12 employees in the unit claimed to be appropriate 5 The unit was not an issue in the proceedings 6 Not to be confused with his father, Lee Stover , service manager. KREBS AND KING TOYOTA, INC. 467 flat, whichever he wanted. Krebs also told him that John Lesic was a troublemaker.? No evidence was introduced to support the allegation of the complaint that Krebs threatened any employee with reduction in their comprehension if he joined or assisted the Machinists. 3. The suspension and discharge of Lesic Both the suspension and subsequent discharge of John Lesic are alleged as violations of Section 8(a)(3) of the Act. Lesic testified that he was employed by Respondent as a mechanic for a period of about 5 years, with an interruption of about 3 months, when he was suspended on April 19. He corroborated Schloer's testimony as to the circumstances under which he established contact with Schloer and that a meeting was held and cards were signed and distributed. On April 1, Lesic stopped at a bar in the vicinity and met Lee Stover, service manager, Jack Mulley, parts manager, and a person he described as "Mr. Jump." s According to Lesic, Mulley told him that if the Union did not go through he (Mulley) would make sure he (Lesic) never got a job anywhere else in the city and that while Lesic was working there he would cut his throat and watch him bleed to death .9 On the next day, Lesic reported the incident to Schloer who told him the men should not report to work on Monday (April 5) until he had a chance to see Krebs. The men did not check in on Monday and when Krebs arrived at the agency, Schloer, Lesic, and another union represent- ative went in to see him Schloer told Krebs that the reason the men failed to report was harassment directed against them, not by Krebs but by the managers. Stover and Mulley were called to the office and Mulley was warned by Krebs. The employees then reported for work Krebs testified only briefly with respect to this incident and he did not contradict the substance of Lesic's testimony. On Thursday, April 15, Lesic met a customer of the agency by the name of Bill Dyson who told him his car needed a new air compressor. Dyson told him he was about to sell the car and asked about using a used compressor and Lesic agreed that that would be cheaper and, as I understand his testimony, told Dyson he knew where one could be obtained. Dyson left his telephone number with Lesic. William Dyson, a policeman on disability, testified that on April 15 he went to Respondent's place of business to pick up his car and was told by Mulley that it needed a new air compressor. Respondent did not have one in stock, but Dyson ordered one. He then met Lesic, whom he knew, as he was leaving and in the course of a conversation Lesic told him a friend of his had an air compressor which might be available. Actually, according to Dyson, Lesic himself had the compressor. When Dyson went home he called Mulley to cancel the order for a new compressor, telling him that Lesic could get him one. The next day, he received a call from Mulley in which he was told Krebs wanted to see him and on Saturday, April 17, he saw Krebs, had a conversation which lasted about 1 hour and 15 minutes and in which the union organization was discussed and, at the end of which, he gave Krebs a handwritten statement of his conversation with Lesic. (Resp. Exh. I.) He did state that he gave the statement only after he received a promise from Krebs that he would not fire Lesic but would only suspend him, a promise which was not kept. About 1 hour after Lesic's conversation with Dyson, Stover and Mulley came over and Mulley asked Lesic about helping to buy parts for one of Respondent's customers. -Lesic denied that he had done this but about 15 minutes later Kreb came out and started "screaming" and told him if he caught him again he would fire him and that he (Krebs) was going to get a statement from Dyson to use against him.io On April 19, when Lesic reported for work, Stover gave him a sealed envelope containing notice of his suspension until May 7. (G. C. Exh. 4.) On April 28, he was notified by mail that he had been discharged for soliciting. Both Lesic and Dyson testified to a conversation they had at a restaurant on Saturday, April 17, at Lesic's request and after Dyson's visit with Krebs. Lesic testified that Dyson told him he had to give the statement because he was under obligation to Krebs and that he did not want to hurt Lesic. Dyson denied that he told Lesic he was forced to give the statement but admitted to him that he had given it. Lesic also testified that Dyson told him "they really wanted him out of there bad" and asked what he (Lesic) had done. Lesic told him he was partly responsible for getting the union organized. This part of their conversation was not denied by Dyson. Krebs testified that when he learned of the Dyson incident, which he referred to as propositioning or soliciting a customer for outside work, he talked to Lesic about it (the "screaming" conversation) and that Lesic did not deny soliciting. Krebs tried to reach Dyson and Dyson came in on Saturday morning when he gave the statement to Krebs after receiving assurance that Lesic would not be fired. Krebs was leaving for Washington, but before going he typed up the notice of suspension which Stover delivered to Lesic on April 19. When Krebs returned on April 20, the employees were out on strike. Krebs did not give any explanation for changing Lesic's suspension to discharge. 4. The strike Schloer testified that he received a call from Lesic on 7 Since Krebs did not testify to either conversation, this testimony is uncontradicted S The record indicates Jump was an employee of Respondent 9 Mulley was not called as a witness so this testimony is not contradicted 10 Russell F Lion, Jr, employed by Respondent as a mechanic, testified that on this day he heard Mulley tell Stover, "I have got to get Lesic now, I have to, there is no way I can't get him, Dyson and myself we arejust alike, we are both rotten dobedoo " ('Dobedoo' was the witness's euphemism for an obscenity) William Gallenz, body shop foreman, testified that some time after the first walkout (April 5) Mulley told him that Krebs "really hates that-little freak ," and that he ( Krebs) wanted to get him Mulley also told him on the day of the compressor incident that he (Galenz ) could forget about the union because Krebs was "over there hollering his ass off at him (Lesic) " Lion and Larry Sargent, another employee, overheard the end of this conversation and testified they heard Krebs tell Lesic that if he did it again he would be fired 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 19 in which Lesic told him he had been suspended. On April 20, he had a meeting with the employees and asked them not to report for work until he had a chance to talk with Krebs. He talked on that day with Stover and with Michael King, co-owner, and explained the situation but did not see Krebs until late in the week while the employees continued the strike. When he saw Krebs, Schloer asked him to reinstate Lesic and the request was refused. Later that week, Schloer took all the employees, including Lesic, to the showroom where Krebs told him he would not talk until Lesic was dismissed from the group. After Lesic's departure, Krebs told Schloer that he would not rehire Lesic and that the body shop was closed and he would not need the body shop men. He did, however, offer reinstatement to the other employees and they went back to work on May 11.11 Two of the strikers, Lion and Bold, testified to conversations they had with Service Manager Lee Stover while they were picketing. Lion testified that Stover told him he hoped the strike would be over soon, that he had been in unions and thought them good, but that since "this happened" Krebs would close the doors before he would let Lesic back in the shop. Bold testified, and this appears to have been the same conversation, that he was with Lion and that Stover told him "it shouldn't have come to this" and that he told Stover they should not have suspended Lesic. Stover's response was that if he (Lesic) "wouldn't have done what he did, he probably wouldn't have been suspended." Stover then made the remark that the Company would go out of business before it would take Lesic back. 5. The body shop Three men worked in the body shop, William Gallenz, foreman, and Robert Wilson and James Moody (some- times referred to as Mooney). Respondent had two places of business, one at 915 Saxonburg Boulevard and the other at 611 Butler Street about 1 mile away. The body shop was located at 611 Butler, which also had a place for new-car display, and a place to wash down and recondition some cars. Gallen was paid on an arrangement by which he received 50 percent of all labor charges and Gallen paid the two employees from this money. Respondent paid the rent, the utilities, and insurance and owned all the tools except for the mechanics' personal tools. Parts were obtained for the body shop from Mulley, the parts manager. I find that Gallenz was a supervisory employee and Wilson and Moony were employees of Respondent. Krebs testified that when the strike took place on April 20 there were 10 or 11 cars in the body shop and that 5 or 6 of them belonged to retail customers who were screaming for their cars. At one time during the strike (no date was specified), Krebs asked Gallenz, who was on the picket line, to release Moody to go back and asked Gallen to go back but was told by Gallen that he would not go back without representation. Krebs then farmed the work out to an agency on Monroe Boulevard. On April 30, Respondent received a letter from Shaler Development Corporation 11 This date was stipulated, but there is some confusion in Schloer's testimony as to the date of the showroom meeting. May 7 is apparently the correct date (Resp. Exh. 6) stating that its lease on the premises at 915 Saxonburg Boulevard would not be renewed and asking it to vacate the premises by June 30. As a result of this letter, Respondent was forced to locate all of its facilities at 611 Butler, the smaller of the two locations. As a result, according to Krebs, the area formerly occupied by the body shop at Butler was now used for the storage of new cars and the body shop work was farmed out under the same arrangement as during the strike. At this time, Respondent was building a new shop which would contain a body shop building, but Respondent, due to the loss of the Saxonburg lot, moved its service department into the new body shop building. On the Thursday before the strike terminated, Krebs again asked Gallenz if he were coming back to work and when Gallenz refused he told him he was going to close the body shop. As to this conversation, Gallenz testified that Krebs asked him if he intended to return to work, he stated he would return and let the Board settle it. Krebs then told him that no union would tell him how to run his shop and that he (Gallenz) had better look for a new job because he was closing the body shop. At the time of the hearing, the body shop work was still being farmed out. B. Conclusions 1. Violation of Section 8(a)(1) I find that the interrogation of Stover and Wood by Krebs on the day the Machinists demanded recognition violated Section 8(a)(1). This was no casual interrogation by a minor supervisor. Krebs was a co-owner of the business and the men were called from their work stations to his office. There was no necessity for determining the validity of the Machinists demand since Krebs had already seen the authorization cards and there were no assurances against reprisal. It is true that only two employees testified to interrogation, but it is also true that there were only 12 employees in the unit. The coercive impact could, therefore, scarcely be called insubstantial, trivial, or isolated. 2. The discharge of Lesic The suspension and discharge of Lesic present the usual difficulties found in discharge cases where cause for discipline coexists with evidence of discriminatory motiva- tion. There is some evidence of resentment of Lesic's union activity in Krebs' statement to Stover that Lesic was a troublemaker when he was interrogating Stover on March 19. There is much stronger evidence that Mulley resented not only Lesic's activity but that of all of the employees in the quotations ascribed to him by the employees in their testimony.12 Nevertheless, I do not find the suspension of Lesic unlawful under Section 8(a)(3). The operation of an automobile agency is traditionally regarded as a ruthlessly competitive business and any sale is regarded as a matter of high consequence. Knowledge that an employee was diverting the sale of an air compressor from the Respon- d 12 None of the statements allegedly made by Mulley are alleged as violations of the Act KREBS AND KING TOYOTA, INC. 469 dent to his own profit was bound to provoke strong resentment .13 Suspension for 3 weeks may seem to be strong punishment , but the offense was not a negligible one. It might be that Krebs went to unusual lengths to protect himself against a charge of discrimination by solicitation of a written statement from Dyson and that this action in itself creates suspicion. In view of the well- established fact that any employer who discharges a union adherent during an organizational campaign will almost inevitably be faced with not only a charge but a complaint alleging an unfair labor practice , an employer would be well-advised to employ all safeguards . I have noted that all the testimony which quotes either Krebs or Stover as referring to Lesic could as reasonably be construed as directed to the air compressor incident as to his union activity. Quotations of Mulley's remarks must be examined in the light of the personal hostility which existed between the two. (Lion testified that Mulley and Lesic never got along and were always screaming at each other.) I reach a different conclusion , however, respecting the discharge of Lesic on April 28, which I find to be a violation of the Act . Krebs at no time offered any explanation for his change in the penalty inflicted and it certainly required explanation , particularly in view of Krebs' assurance to Dyson that Lesic would not be fired. Left to supply an explanation , it is my conclusion that Krebs' attitude toward Lesic hardened as a result of the strike, a strike provoked by the suspension of Lesic. Thus all Respondent's difficulties focused on Lesic as the source. Not only did Stover tell the strikers that Krebs would close his doors before he would take Lesic back , but Krebs himself refused to take him back even as a means of ending the strike. Krebs would not, in fact, discuss reinstatement with either Schloer or the strikers while Lesic was on his premises . This animus I ascribe not wholly to the compressor incident but to Lesic's union activity and the ensuing strike as well. 3. The refusal to bargain , the strike, and the body shop I have already found the Machinists represented a majority of Respondent's employees in a unit appropriate for collective bargaining and made a demand for recogni- tion which was refused . The only question presented is whether, in the rather special circumstances of this case, the refusal constituted an unfair labor practice. The record establishes that on March 19, when Krebs refused to recognize the Machinists, he had seen the cards and had expressed no doubt as to their authenticity nor any doubt as to the Machinists majority status. In N.L.R.B. v. Gissel Packing Corp, 395 U.S. 575, the Court expressly affirmed its Arkansas Oak Flooring doctrine,14 holding, in effect, that where a union has obtained signed authoriza- tion cards from a majority of the employees the employer's denial of recognition in the absence of a bona fide dispute constitutes a violation of Section 8(a)(5) of the Act. Here, however, the Respondent had even more conclusive evidence of majority status for, when the Machinists struck 13 Krebs' reverence for professional ethics was not total Testifying as to his financial arrangements with Gallenz, Krebs stated that if a fender were sent down for a car and Gallenz could use an old fender, he and Krebs on April 20, all of its employees joined the strike and none returned until the Machinists made the offer to return on May 11. Relying on the Gissel and Arkansas Oak Flooring decisions, I find Respondent violated Section 8(a)(5) of the Act. As to the strike, I find that it was initiated by the suspension of Lesic on April 19 and, since I have not found this suspension discriminatory, that the stake was an economic rather than an unfair labor practice strike. There is no evidence in this record that the Respondent's unlawful refusal to bargain with the Machinists was any factor in the decision to strike. Nor do I find that the subsequent discriminatory discharge of Lesic by Respon- dent converted the strike into an unfair labor practice strike or that it prolonged the strike. The strike was settled with full reinstatement of all employees except for the two body shop employees, Moody and Wilson, upon their unconditional offer to return. It did not change in character nor was its purpose any different than it had been at inception-the reinstatement of Lesic. I do not believe that every economic strike is converted into an unfair labor practice strike simply because the employer commits a single unfair labor practice during the strike period, in the absence of any showing that this had any impact on the strike as to either motivation or duration. As to the body shop, I find that its discontinuance was not for any discriminatory reasons on the part of the Respondent but for causes beyond its control. While the testimony on this issue is not free from inconsistency, there is substantial evidence to support Respondent's contention that after notice was received that its lease would not be renewed it had no facility for operating a body shop. Until the new building is completed and occupied, the farming out of the work is due to economic necessity. I, therefore, find that Respondent was neither in violation of Section 8(a)(5) by refusing to bargain with the Machinists over the discontin- uance of this operation nor in violation of Section 8(a)(3) by refusing to reemploy Moody and Wilson. As to their rights to future rehire, these will be discussed under "The Remedy." Upon the foregoing findings and conclusions, I make the following: CONCLUSIONS OF LAW 1. By interrogating its employees regarding their union activity, Respondent violated Section 8(a)(1) of the Act. 2. By discharging John Lesic on April 28 for the purpose of discouraging union activity, Respondent violated Section 8(a)(3) and (1) of the Act. 3. By refusing to recognize and bargain with the Machinists, Respondent violated Section 8(a)(3) and (1) of the Act. The umt appropriate for collective bargaining is: All automotive mechanics, body and fendermen, apprentices, helpers, lubricators, lot boys, recondition- ers, partsmen, parts truck drivers, car jockies and all other employees in the service department, excluding all office clerical and professional employees, watch- would split the difference between the cost of a new fender, which would be charged the customer and the cost of the old fender, which was installed. 14 United Mine Workers v. Arkansas Oak Flooring Co, 351 US 62, 37 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men, guards, salesmen and supervisors as defined in the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 5. By failing to reinstate William Gallenz, James Moody, and Robert Wilson, Respondent did not violate Section 8(a)(I) and (3) of the Act. 6. By refusing to bargain with the Machinists respect- ing the shutdown of the body shop, Respondent did not violate Section 8(a)(5) of the Act. IV. THE REMEDY Having found Respondent engaged in and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. Having found that Respondent discharged John Lesic in violation of Section 8(a)(3) of the Act, it will be recommended that Respondent offer him full and immedi- ate reinstatement to his formerjob or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings or any other 15 Although I have found that Moody and Wilson were not discriminato- rily discharged, they are as economic strikers entitled to reinstatement when monetary loss he may have suffered as a result of such discrimination. Such losses shall be computed on a quarterly basis with interest at the rate of 6 percent per annum. It shall also be recommended that if and when the body and fender shop is again operated at any facility owned by Respondent, James Moody and Robert Wilson be offered full and immediate reinstatement to their former positions as body and fendermen without loss of seniority or other rights and privileges.15 Since the record in this case establishes that William Gallenz was a supervisor within the meaning of Section 2(11), no recommendation will be made with respect to Gallenz. Where, as here, the Union's majority status in an appropriate unit is clear and undisputed by both the authorization cards and the unammous participation in the strike, I do not reach the question of whether Respondent's unfair labor practices precluded the holding of a free election. Respondent's refusal to bargain under such circumstances warrants the issuance of a bargaining order. Upon the foregoing findings of fact and conclusions of law and upon the entire record, I recommend, pursuant to Section ,10(c)'of the Act, issuance of the following. [Recommended Order omitted from publication.] their jobs become available Laidlaw Corp, 171 NLRB 1366, N LR B v Fleetwood Trailer Co, 389 U S 375