Luby Leasing, Inc.

LUBY LEASING, INC. 951 Luby Leasing, Inc. and District No. 76, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 3-CA-4556 August 17, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 22, 1972, Trial Examiner Alvin Lieber- man issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs. Respondent filed a reply brief to the exceptions of the General Counsel. 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 briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions2 and to adopt his recommended Order. In concluding that the union authorization cards signed by Respondent's mechanics in the presence of Allen were valid, the Trial Examiner made no finding on whether Allen was actually a supervisor at that time. In finding the cards valid, we agree with the Trial Examiner that Respondent's mechanics believed Allen was no longer a supervisor and, further, we conclude that Allen no longer spoke for management. Thus, Respondent's employees were aware that Allen had submitted his resignation as service manager and that he began the next day to work a full 8 hours as a mechanic, the same as the other employees. Allen also began punching the timeclock, which he had not done previously. When, a ! day or two after submitting his resignation, Allen had made out some worksheets, Farney, Respon- dent's manager, tore them up and wrote counter- manding orders. Later, when Farney called the mechanics individually into his office, two of the mechanics did not wish to go in the office alone and requested permission to bring someone along. Both selected Allen to accompany them. Given the relationship which existed between Allen and the mechanics at the time the cards were signed and thereafter, we are of the opinion that neither Allen nor the mechanics believed that Allen represented management or management's point of view. Ac- cordingly, we conclude that his presence at the meeting where the cards were signed, and his contemporaneous signing of a card, did not in any manner influence the mechanics or thereby taint their cards. 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 Respondent, Luby Leasing, Inc., Tonawanda, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i Members Fanning and Penello agree with the Trial Examiner that Respondent violated Section 8(a)(l) by its statement to Koone that if the Union got in he would suffer a drop in pay However, they do not adopt his rationale but so find because the matter was put as an observation of inevitable result, rather than a possibility, notwithstanding the Union's indication that an exception to the leasing contract rate could be made 2 Chairman Miller does not agree that Respondent's statement to Koone that if the Union got in Koone would have a drop in pay because he would thereafter be under a "leasing contract" was violative of Section 8(a)(1) Koone was unique in that he had been hired as part of a transaction when Respondent took over another firm having a "common carrier contract" with the Union Koone had continued to receive the higher pay and benefits of that contract while in Respondent's employ although Respondent was a leasing company rather than a common carrier Respondent 's statement was not a threat of retaliation but rather an expression of its view, which nothing in the record suggests was erroneous, that it would be expected to follow a "leasing contract" if the Union were to gain representative status Furthermore . Chairman Miller notes that Koone himself was aware of the possibility of coming under a lower rate "leasing contract" and in that same conversation advised Respondent that he had checked with the Union and had been assured that under "no circumstances" would he receive a lower rate of pay Under this set of facts. Chairman Miller would find nothing coercive in the conversation and would therefore dismiss the allegations of an 8(a)(1) violation relating thereto TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Trial Examiner: The trial in this proceeding, with all parties represented, was held before me in Buffalo, New York, on November 2, 3, and 4, 1971, upon the General Counsel's complaint dated September 28, 1971, 1 and Respondent's answer .2 In general, the issues litigated were whether Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (the Act). Particularly, the principal questions for decision are as follows: 1. Did Respondent violate Section 8(a)(1) of the Act by, as the complaint alleges, threatening and interrogating employees concerning their union activities ; promising benefits to employees to dissuade them from supporting i The complaint was issued pursuant to a charge filed on August 11, 1971, by District No 76. International Association of Machinists and Aerospace Workers. AFL-CIO 2 During the trial the pleadings were revised in several respects Thus, the complaint was amended by striking the words "office and" after the word "principal" in par 11(b ) and inserting between the words "business" and "at" the words "in Albany, New York, and a place of business", by substituting for the words "April 1, 1971," in par VI(e) the words "June or July 1971", and by substituting the following par for par. X111 All service department employees employed by Respondent at its Tonawanda , New York. plant including mechanics employed at the employer's satellite operations in Rochester, New York , and Corry, (Continued) 198 NLRB No. 139 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD District 76, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union); denying benefits to employees because they supported the Union; and keeping under surveillance employees' union activi- ties? 2. Did Respondent violate Section 8(a)(3) of the Act by discharging an employee? 3. Did the Union represent an uncoerced majority of Respondent's employees when its request for bargaining was made? 4. Assuming an affirmative answer to question 3, did Respondent violate Section 8(a)(5) by refusing to bargain with the Union and, as the complaint further alleges, by unilaterally changing employees' terms and conditions of employment? 5. Assuming an affirmative answer to question 4, should a bargaining order issue? Upon the entire record,3 upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the arguments made and the briefs submitted,4 I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation, is engaged in Tonawanda, New York, in the leasing and servicing of motor trucks. During the year ending on September 27, 1971, Respondent purchased and received goods and materials valued at more than $50,000 which were delivered to its place of business in Tonawanda, New York, from places outside the State of New York. Accordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (the Board) is warranted. Siemons Mailing Service, 122 NLRB 81, 85. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. INTRODUCTION Briefly, this case concerns itself with the signing of authorization cards by a majority of Respondent's employ- ees; the Union's request, to which Respondent did not accede, for bargaining ; and certain subsequent events. Included among the latter , the complaint alleges, were violations of Section 8(a)(1) of the Acts by Respondent and Respondent's unilateral changes in the working conditions of its employees . Also among the events which followed the Union's bargaining request was Respondent's discharge of an employee. The General Counsel contendss that the discharge violated Section 8(a)(3) of the Act. He further contends that Respondent's refusal to bargain with the Union and the unilateral changes in working conditions alleged in the complaint were violative of Section 8(a)(5).7 Respondent denies the complaint's allegations that it violated Section 8(a)(l) of the Act. It argues that the discharge was economically motivated and, therefore, not violative of Section 8(a)(3). Concerning its failure to bargain with the Union, Respondent maintains that it was not obliged to do so because at the time of the Union's request for recognition the Union did not represent an uncoerced majority of the employees in the unit involved.8 The basis for this contention is Respondent's claim, disputed by the General Counsel, that a supervisor was present when its employees signed cards designating the Union as their bargaining representatives. IV. PRELIMINARY FINDINGS AND CONCLUSIONS9 A. Credibility The General Counsel called four witnesses to establish Pennsylvania, excluding all office clerical employees, watchmen, guards and supervisors as defined in the Act The answer was amended to admit the foregoing amendments to the complaint. 3 Issued simultaneously is a separate order correcting obvious inadvert- ent errors in the stenographic transcript of this proceeding 4 Although all the arguments of the parties and the authorities cited by them, whether appearing in their briefs or made orally at the trial, may not be discussed in this Decision, each has been carefully weighed and considered 5 The nature of these claimed violations appear above in my statement of the principal questions for decision 6 The Union made no opening statement at the trial, nor did it submit a brief I assume, however, that its position is the same as the General Counsel's. 7 Set forth below are the relevant provisions of the secs of the Act to which reference has been made in the text Sec 8 (a) It shall be an unfair labor practice for an employer- (I) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7, (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . r • • r (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a) Insofar as pertinent, Secs 7 and 9(a) are as follows. Sec 7 Employees shall have 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, and shall also have the right to refrain from any or all of such activities Sec 9 (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment X There is agreement as to the appropriateness of the unit for which bargaining was requested As set forth in the complaint, as amended, it consists of "all service department employees employed by Respondent at its Tonawanda, New York . plant including mechanics employed at the employer's satellite operations in Rochester. New York, and Corry. Pennsylvania, excluding all office clerical employees , watchmen, guards and supervisors as defined in the Act " 9 The purpose of these findings is to furnish a frame of reference within which to consider the facts relating to Respondent's alleged unfair labor practices and the conclusions to which they may give rise To the extent that the contentions of the parties relate specifically to the findings made here they will be treated here , although they, as well as the findings, may again be considered in other contexts LUBY LEASING, INC. 953 the complaint's allegation that Respondent violated Sec- tion 8(a)(1) of the Act by threatening and interrogating employees. Two of these, William Eisenhauer and Charles Koone, were in Respondent's employ at the time the events as to which they testified occurred and were still employees of Respondent at the time of the trial. The other two, Edgar Allen and Clifford Laub, had been in Respondent's employ but were no longer employed by Respondent when they testified.10 The evidence given by the General Counsel's witnesses to establish Respondent's independent violations of Section 8(a)(l) was, in the main, denied or contradicted by Respondent's witnesses, all of whom were high ranking officials of Respondent. "The average employee [providing information in a proceeding to which his employer is a party] is keenly aware of his dependence upon his employer's good will, not only to hold his job but also for the necessary job references essential to employment elsewhere.11 Bearing this truism in mind, it is plain to see that the employee witnesses who testified against Respondent did so knowing that they were in considerable peril of economic reprisal. Having thus much to lose, their testimony, adverse to Respondent, was in a sense contrary to their own interests and for this reason not likely to be false.12 Accordingly, taking into account the foregoing as well as their demeanor on the witness stand, I credit Eisenhauer i3 and Koone 14 rather than Respondent's witnesses, includ- ing Douglas Farney, Respondent's manager, who gave contrary or conflicting testimony concerning the com- plaint's allegations that Respondent violated Section 8(a)(1) by its interrogation and threats. This is not to say that Farney was generally an untruthful witness. As will be seen, testimony given by him concerning matters having no relationship to the claim that Respondent interrogated and threatened employees has been credited. "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." N.L.R.B. v. Universal Camera Corpora- tion, 179 F.2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474. What I have dust said does not apply to any testimony given by Allen and Laub respecting any phase of this case. Each had an animus against Respondent which surfaced during the trial. Allen's hostility toward Respondent was engendered, as he several times stated, by his belief that he had been cheated by Respondent in connection with his wages. In explanation of this Allen testified that Respondent "never did come to match [his] pay with [his] hours." Laub's resentment toward Respondent was based on his discharge and on the fact that in a letter of reference 15 he 10 Respondent discharged Laub on June 29, 1971 The termination of Laub's employment is alleged in the complaint as having been violative of Section 8(a)(3) of the Act Allen quit his job with Respondent on August 19, 1971 11 Wirtz v B A C Steel Products, Inc, et al, 312 F 2d 14, 16 (C A 4) 12 See further, in this connection, Georgia Rug Mill, 131 NLRB 1304, 1305, modified on other grounds 308 F 2d 89 (C A 5) 13 I have also taken into account in crediting Eisenhauer the fact that for a short period of time while working for Respondent he also accepted unemployment benefits 14 As will be made apparent later on in this Decision, in one respect received from Respondent after his discharge his work was described as being that of a "second class" mechanic. As to this, Laub testified with much ardor that while working for Respondent he "was doing the same thing Charlie Koone is doing right now, and Charlie Koone is supposed to have been a mechanic for ten or fifteen years." Furthermore Allen and Laub did not, by their demeanor, impress me as being candid witnesses . They did not appear to be above telling untruths, if by doing so they could disadvantage Respondent. Accordingly, with respect to important matters , I will not credit Allen or Laub in any regard unless their testimony has been corroborated by credible evidence or constitutes admissions contrary to their interests.i6 B. Respondent's Operations 1. The nature of Respondent's business and its employment complement Respondent's headquarters are in Albany, New York. It maintains several places of business, including a garage in Tonawanda, New York, with which we are here concerned, which went into operation in May 1970. Respondent is a lessor of motor trucks . Its leases run for substantial periods of time and require respondent to service and maintain the leased vehicles. The service and maintenance work provided for in the leases is performed by mechanics in Respondent's employ. It is done, in large part, at the lessees' premises in the late afternoon or during the night when the trucks are off the road. Some leased vehicles are also repaired at Respon- dent's garage. From time to time during the evening hours Douglas Farney, Respondent's district manager, visits Respondent's garage and the premises of Respondent's lessees. Farney does this, as he testified, "to make sure that the work assigned [to Respondent's mechanics] is being carried out as assigned" and because he "like[s ] to know for [himself] whether or not everything is as honky dorey as [his] service people tell [him] they are." On the occasions of Farney's visits to Respondent's lessees he discusses problems with lessees' dispatchers, examines reports of truck malfunctions made by drivers employed by lessees, and determines whether the repairs indicated have been properly made by respondent's mechanics. It is Farney's feeling, as he further testified, that these "visits . . . are more effective if no one knows that [he is] coming." At all material times the service staff at Respondent's Tonawanda garage has consisted of three mechanics and a supervisor, variously referred to as service manager, Koone's testimony was too confusing to permit me to make a finding as to a matter having no relationship to Respondent's alleged violations of Section 8(a)(I) of the Act by interrogating and threatening employees This, however, does not detract from his credibility 1.5 General Counsel's Exhibit (G C Exh ) 8 16 Having thus concluded that Eisenhauer and Koone should be believed with respect to allegations of the complaint dealing with Section 8(a)(1) of the Act and that Allen and Laub were not truthful witnesses, I will make no further reference to credibility except when what is involved does not fall within the periphery of my discussion here In addition , from time to time testimonial differences may be mentioned in appropriate footnotes. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working foreman, and lead mechanic. At no material time has Respondent had any need to employ a fourth mechanic. 2. Truck transfers When Respondent opened its Tonawanda garage several trucks which had been in use at other garages operated by respondent were transferred to Tonawanda for temporary assignment to lessees. When these trucks were replaced by new vehicles they were returned to the garages from which they were originally taken. In addition to the foregoing transfers it is necessary on occasion, although the need for this diminished upon Respondent's becoming well estab- lished in Tonawanda, for Respondent to transfer trucks between Tonawanda and its other garages. Intergarage truck transfers from or to Tonawanda are made by people employed specially for this purpose when the need arises and by mechanics who work regularly in the Tonawanda garage. However, mechanics are used for this purpose only if the transfer does not interfere with their regular duties or impair their efficiency in the performance of their normal work. When the transfers are made by mechanics they are paid for doing so over and above the wages they earn in the performance of their usual work. 3. Some working conditions in respondent's garage Among the working conditions which prevailed in Respondent's garage before July 15, 1971,17 were those relating to working hours, punching the timeclock , clean- ing up and changing clothes, coffeebreaks, and health insurance. Insofar as the evidence permits, findings concerning the nature of these working conditions before July 15, 1971,18 are set forth below. Working hours: Exclusive of overtime, the regular working day in Respondent's garage consisted of, and employees were paid for, 8 hours. However, the normal quitting time for an employee was 8-1/2 hours after he started to work. This accounted for a 30-minute lunch break for which he was not paid. Punching a timeclock. Employees were required to punch the timeclock in respondent's garage at the beginning and end of their working day. They were permitted to clock in up to 15 minutes before their regular starting time provided they began to work upon doing so and, provided further, that they clocked out 8-1/2 hours later. Employees were also required to punch the timeclock at the beginning and end of their lunch period. This requirement, however, was honored more in the breach than in the observance. The reason for this was that employees were usually working at premises of Respon- dent's lessees when their lunchtime came and they took their lunch there. Cleaning up and changing clothes Mechanics employed by Respondent wear shop uniforms while working. Some change into street clothes before leaving the garage at the end of their shifts and some do not. The evidence as to whether Respondent required those who did so before July 15 to clock out before changing clothes is so inconclusive and confusing that I am unable to make a finding as to what the requirement or practice was. Thus, Douglas Farney, Respondent's manager, testified merely that he "believe[d]" that employees who changed clothes before clocking out "were violating [Respondent's] working conditions." The only other evidence on this point was given by Charles Koone, a mechanic. He testified with equal inconclusiveness and much confusion that "to [his] knowledge" it was not "the practice to wait until the end of the work day before dressing out"; that "[a It quitting time [he] would punch out and then go back and wash up"; that he "would give [himself 10 to 15 minutes ] to clean up .. . before [going] home" and "would [do] this before [punching] out"; and that he "always punched [his] time out" and "never charged [Respondent] for clean up." 19 Coffeebreaks: Before July 15 mechanics, while working in Respondent's garage, could leave their work stations for coffee any number of times a day and drink it in a back room where the coffeepot was located, or bring the coffee back to their places of work and drink it there while they worked. Health Insurance: Under a health insurance policy maintained by Respondent for the benefit of its officials and employees Respondent pays the premium for their coverage. Any official or employee of Respondent who desires to have members of his family covered by Respondent's policy must, himself, pay the premium for their coverage. In the case of Respondent's employees, the amount of this additional premium is deducted from their wages by Respondent. C. Allen's Resignation as Service Manager Allen orginally began to work for respondent as a mechanic. During the fall of 1970 he became Respondent's service manager. This is a supervisory position. At the time of Allen's promotion he was assured by Respondent's officials that if he ever became dissatisfied with being service manager he could resume his job as mechanic. On June 16, 1971, during a row with Douglas Farney, Respondent's manager, over an increase in salary and other matters Allen informed Farney that he wanted to return to the floor and work as a mechanic, as was agreed upon at the time of his promotion. Farney acceded to this but requested 2 weeks' notice, which Allen readily gave, for the purpose of affording Respondent time to engage a new service manager. On the next day, June 17, Respondent placed an advertisement for a "working foreman"20 in the Buffalo newspapers. The advertisement first appeared on June 18 and continued to appear each day during the following i On July 15, 1971, Respondent posted a notice (GC Exh 7) 1$ All dates hereinafter mentioned without stating a year fall within 1971 containing work rules The complaint alleges that the rules thus published, 19 While Koone was testifying on this point I observed that he "said so which will be discussed in detail in a later section of this Decision, many things I'm not sure what he said " Having read the record, I am still of constituted unilateral changes in terms and conditions of employment of that opinion Respondent's employees 20 Respondent's Exhibit (Resp Exh ) 4 LUBY LEASING, INC. 955 week. Allen's replacement was hired on June 24 and he took over Allen's duties on June 30. Allen's notice of his impending resignation as service manager soon came to the attention of the mechanics in Respondent's employ. As put by Koone, who seemed to express the sentiments of the other two mechanics, during the notice period he "took it for granted [that Allen] wasn't foreman any longer." 21 D. The Union's Majority and its Bargaining Request On June 21, 1971, Allen and the three mechanics employed by Respondent, William Eisenhauer, Charles Koone, and Clifford Laub, met with a representative of the Union. This meeting had been arranged the previous day by Laub with some assistance from Allen. After an explanation by the Union's representative concerning the benefits which might flow from the unionization of Respondent's garage, all persons present at the meeting, including Allen, either expressly or by signing an authorization card indicated that they were in favor of being represented by the Union. The cards were signed at the request of the Union's representative and each person in attendance signed in the presence of the others. No other activity in support of the Union seems to have been engaged in by Respondent's employees, except for the presence of some at a hearing conducted on about July 13 in connection with a representation petition filed by the Union. On June 22 the Union, by letter, requested that Respondent recognize, and bargain with, it as the repre- sentative of Respondent's service department employees. It is undisputed that at that time the unit covered by the Union's request consisted of at least three employees, Eisenhauer, Koone, and Laub. In dispute is the placement in this unit of two additional people, Allen and a person alleged by Respondent to be a plant clerk. There was, thus, on June 22 a possible maximum of five people in the unit. To establish the Union's majority on the date of its request for recognition and bargaining22 the General Counsel placed in evidence the cards signed at the June 21 meeting by Allen, Eisenhauer, Koone, and Laub. Respon- dent urges me to reject these cards because, as stated by its lawyer during the trial, they are "tainted by supervisory influence." In support of its position Respondent asserts that Allen continued to be a supervisor during the 2-week notice period which followed June 16, the day he informed Respondent of his desire to give up his post as service manager . Bottomed on this premise, Respondent argues that Allen's assistance in arranging the meeting at which the cards were solicited and signed, his attendance at this meeting, and his having openly signed a card there 21 What appears in the text should not be construed as a finding concerning Allen's status during the 2 weeks in which his replacement was being sought In connection with the validity of the authorization cards, to be discussed next, respondent argues that Allen continued to be a supervisor until June 29 My view of this issue, as will be seen, is that Allen's status during the notice period, within which the cards were signed, has no bearing on their validity 22 "[T]he crucial question in a refusal to bargain case is whether the union had the support of a majority of the employees in an appropriate constituted supervisory coercion in the execution of the cards by the other persons present. The cards being thus tainted, Respondent's argument continues, they have no value as evidence of the Union's majority. I do not agree. In the circumstances of this case, whether Allen was still a supervisor at the time of the meeting at which the cards were signed does not seem to be material. What is important in determining the validity of the cards, as the Board has held, is whether Respondent's employees thought he was. See, in this connection, WKRG-TV, Inc., 190 NLRB No. 34; Aero Corporation, 149 NLRB 1283, 1286, enfd. 363 F.2d 702 (C.A.D.C.). In this respect, I have found that during Allen's 2-week notice period, within which the cards were signed, he was no longer looked upon by Respondent's mechanics as being a supervisor. Accordingly, regardless of whether Allen was actually a supervisor at the time, as to which I make no finding, it cannot be said that the three mechanics who were at the meeting were "by a voice of management intimidated . . . into signing cards." WKRG-TV, Inc., supra. I conclude, therefore, that the cards signed on June 21 by the three mechanics in respondent's employ are valid and entitled to reliance in determining the Union's majority. The question of whether the Union had the support of a majority of Respondent's service department employees on June 22, when it requested Respondent to recognize, and bargain with, it can be quickly resolved. Three employees, as to whose placement in the unit covered by the Union's request there is no dispute,23 signed cards on June 21 validly authorizing the Union to act as their bargaining agent.24 There having been a possible maximum of five people in the unit on June 22, these cards establish the Union's majority status on that day. V. THE ALLEGED UNFAIR LABOR PRACTICES25 A. Facts, Contentions, and Conclusions Concerning Respondent's Alleged Independent Violations of Section 8(a)(1) of the Act Respondent's claimed independent violations of Section 8(a)(I) of the Act, as set forth in the complaint, consist of interrogating and threatening employees, promising bene- fits to employees, denying benefits to employees, and surveillance of employees' union activity. Many of the foregoing alleged violations are stated in the complaint to have been committed during the afternoon of June 24, 1971, in the office of Douglas Farney, Respondent's manager, to which each mechanic in Respondent's employ was separately summoned. Farney's purpose in calling the employees to his office, he stated, was to acquaint them with the Union's bargaining request, received by Respondent on June 22, bargaining unit at the time the request to bargain was made International Union, UAW, etc v N L R B, 392 F 2d 801, 808 (C A D C). cert denied 392 U S 906 These are Eisenhauer, Koone. and Laub za Because of the dispute concerning Allen's placement in the unit his card will not be considered in determining the Union's majority 2'i It will be remembered that the complaint alleges that respondent violated Section 8(a)(I), (3), and (5) of the Act 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and to "find out what [the shop] problems were." In this connection, Farney further stated that "because [he] had received [the] letter from the Union [he] assumed . . . that [he] had some problems in the shop." Farney informed each employee at the beginning of his interview that he had received the Union's bargaining request, but that he was not interested in any information concerning the Union. In addition, and as part of his prefatory statement, Farney told the employees, as he testified, that his "only purpose" in talking to them "was to get to the problems that they felt [he] had in the garage"; that "if they didn't want to talk about anything that was wrong they didn't have to"; and that they should not feel that "if they told [him] something ... was wrong they would be . . . reprimanded, or disciplined for saying [so]." Despite Farney's disclaimer of interest in information concerning the Union, much was said on this subject during the interviews on June 24. 1. Interrogation and threats Although Jacob Lee, Respondent's regional service manager, also participated, the interviews were, in the main, conducted by Douglas Farney, Respondent's man- ager. Each employee was asked whether he had signed an authorization card26 and whether any other employees had done so. Questions were put to Eisenhauer and Koone, mechanics in Respondent's employ, concerning the identi- ty of the employee who had been instrumental in organizing the Union and Eisenhauer was asked what he knew about the Union. The single incident of interrogation alleged in the complaint which did not take place in Farney's office occurred on August 8 while Al Remo, Respondent's regional manager, was driving Eisenhauer from the premises of one of respondent's lessees to Respondent's garage. On this occasion, as Eisenhauer testified, Remo inquired of him, with reference to the Union, "How did this thing all get started?" Remo continued the conversa- tion by speculating that the Union might have been given its "start" in Respondent's garage by Laub, who by this time had already been discharged. In addition to their interrogation in Farney's office on June 24, threats were there made to Respondent's employees. Thus, Lee, Respondent's regional service manager, told Eisenhauer, as the latter testified, that "if the union goes through [Respondent] would close down the shop and lock the doors." Lee made a like threat to Laub.27 The threat made to Koone was of a different type.28 26 Each employee questioned admitted that he had signed a card 21 Laub testified concerning the threat made to him by Lee I credit it only because of the similar testimony given by Eisenhauer The same applies to testimony given by Laub relating to his interrogation by Farney. Respondent's manager, which was paralleled by evidence given by Eisenhauer and Koone whose testimony, as I have already noted, I believe 28 To understand the nature of this threat a background statement is necessary Before Koone began to work for Respondent he had been employed by a concern, referred to in the record as Cooper Jarrett, which had a collective agreement with the Union known as a common carrier contract When Respondent opened its Tonawanda garage Cooper Jarrett turned over its trucks to, and became a lessee of, Respondent As part of the transaction Respondent orally agreed with the Union to hire Koone at the rate of pay set forth in the contract between Cooper Jarrett and the Union During Koone's interrogation on June 24 Farney, Respon- dent's manager, said to him, as Koone related, that "if the union comes in here you are going to have a drop in pay because you are not going to get the common carrier contract you have now, you will be under a leasing contract.29 The statements made by Farney to each employee at the outset of the interviews on June 24 did not immunize his subsequent interrogation from the sanctions of the Act. Those statements did not even come close to the "safe- guards" enumerated in Struksnes Construction Co., Inc., 165 NLRB 1062, 1063, where the. Board set forth five criteria for determining the lawfulness of interrogation of employees concerning their relationship to a union. One of the Struksnes standards which was not complied with here is that "the employer has not engaged in other unfair labor practices or otherwise created a coercive atmosphere." 30 The threats to close Respondent's plant made to Eisenhauer and Laub and to reduce Koone's wages upon the advent of the Union made while those employees were being questioned about the Union "were intrinsically coercive and imparted a coercive nature to the interroga- tion."31 By thus creating what was referred to in Struksnes as "a coercive atmosphere" Respondent's interrogation, like its threats, was violative of Section 8(a)(1) of the Act.32 Furthermore, the very fact that the interrogation of Respondent's employees was conducted in Farney's office also contributed to the creation of "a coercive atmos- phere." Thrush Press, Inc., 171 NLRB No. 86. Respondent seems to argue, on brief, that the statement made to Koone by Farney, Respondent' s manager, concerning the reduction of his wages was "at the most an expression of opinion . . . within the employer's right to free speech." However, there is no hard objective evidence in the record demonstrating that should Respondent enter into a contract with the Union the agreement would provide for the payment to Koone of a lower wage than he was then receiving. Absent such proof, Farney's remark to Koone was a threat and not a protected `,'expression of opinion." N.L.R.B. v. Gissel Packing Co., Inc., et a!., 395 U.S. 575, 618-619. Accordingly, I conclude that by threatening to close its plant and to reduce wages should the Union attain recognition as its employees' bargaining agent Respondent violated Section 8(a)(I) of the Act. I further conclude that Respondent also violated Section 8(a)(1) by interrogating employees as to their, and other employees', activities in support of the Union; as to their knowledge of the Union; which was higher than that paid by Respondent to its other mechanics. 19 Farney's version of what he said to Koone in this regard is different. Farney stated that he told Koone " there was a possibility that if the union were successful that [Respondent ] would actually sign a different contract than what he had now, and there was a possibility that he would end up with an actual lower scale of pay and fewer benefits " 30 My discussion of only one of the Srruksnes criteria should not be construed as an indication that I am satisfied that Farney's prefatory statements complied with the other four ii Cohen Bros Fruit Company, 166 NLRB 88,96 12 My conclusion is the same regarding Eisenhauer's interrogation by Remo, Respondent's regional manager, on August 8, where there was not even an attempt at compliance with the Srruksnes safeguards LUBY LEASING, INC. 957 and as to the identity of the person who called on the Union to organize Respondent's employees. 2. Promises of benefits The complaint alleges that on June 24, 1971, Douglas Farney and Jacob Lee, respectively Respondent's manager and regional service manager, promised benefits to Respondent's employees if they refrained from becoming or remaining' members of, or supporting, the Union. I find that the evidence does not establish this allegation. During the interviews of Eisenhauer and Laub, employ- ees of Respondent,33 the health insurance34 and other benefits Respondent provided for its employees were discussed. Concerning the latter, when Eisenhauer ex- pressed ignorance as to their nature Lee offered to have someone describe them to the mechanics. Respecting the health insurance benefits, Farney, Res- pondent's manager, told Eisenhauer, as the latter testified, that Respondent "might be able" to pay the premium being deducted from the wages of employees who desired to have their families covered by Respondent's policy. Eisenhauer further testified, however, that Farney express- ly stated, in this connection, "I will not promise you that," During the interview of the third mechanic, Koone, nothing was said on the subject of health insurance or other benefits furnished by Respondent.35 The foregoing credible evidence does not, in my opinion, warrant a finding that Respondent promised benefits to its employees for the purpose of inducing them to refrain from becoming or remaining members of, or supporting, the Union as the complaint alleges. I will, therefore, recom- mend that paragraph VI(b) and the relating portions of paragraphs XIX and XXII of the complaint be dismissed. 3. Denial of benefits The complaint alleges that Respondent denied benefits to its employees because they became members of, and supported, the Union. This allegation, relating to an aborted picnic and the reduction in the number of truck transfers made by Respondent's mechanics, like the earlier one dealing with promises of benefits, is also unsupported by the evidence. The picnic: It appears to be Respondent's custom to have a picnic for its employees and their guests each summer. The 1971 picnic was held in Albany on July 31. In about mid-July, Farney, Respondent's manager, was informed by Respondent's manager in Albany that unlike previous years employees who wanted to attend the 1971 picnic would be required, before receiving their tickets, to notify Respondent's Albany office not later than a week before the picnic, on forms furnished to Farney, of their intention 33 Laub was discharged 5 days later 34 See supra, sec IV, B, 3, for detailed findings as to the provisions of the health insurance policy maintained by Respondent for the benefit of its employees and their families 35 Laub, with support from Allen who was present when he was interviewed, testified that Farney told him that Respondent would pay the cost of the family health insurance coverage and match or exceed other benefits the employees might obtain through the intervention of the Union This testimony, however, is lacking in corroboration from any credible to be present and the number of guests accompanying them. Because of the press of other business Farney forgot to distribute the forms to the employees in the Tonawanda garage early enough for them to be prepared and submitted in time to receive their tickets. Consequently, they were unable to attend the picnic. To make up for this loss Farney gave each employee a tank of gasoline. As I view the evidence on this matter it would be fanciful to find that Respondent's employees were deprived of their picnic because of their union membership or support. It clearly appears that the deprivation was caused solely by Farney's negligence for which he made atonement by his gift of gasoline to the employees concerned. Truck transfers: I have already found that the need for Respondent to transfer trucks from or to its Tonawanda garage, which was great when the garage went into operation, diminished upon Respondent's becoming well established in Tonawanda. I have further found that it is Respondent's practice to employ people specially for the purpose of transferring trucks and also to use its mechanics for this purpose when their doing so did not interfere with their regular duties. In accordance with this practice, trucks were transferred by Respondent's mechanics before and after June 21, the date on which they signed authorization cards. Thus, before they signed cards Koone and Laub made two transfers a month. The evidence does not disclose how many trucks were transferred by Eisenhauer before June 21.36 Insofar as is shown by the record there were only five vehicle transfers after June 21. None took place in July. Two were made in August by Eisenhauer. Of the remaining three, two trucks were transferred by persons specially engaged to do so and one was carried out by Respondent's service manager. The General Counsel would have me draw the inference that Respondent reduced the number of transfers made by its mechanics after June 21 to penalize them for having signed authorization cards on that day. Assuming that such an inference could be drawn, which is extremely doubtful on the record before me,37 it is also inferable that Respondent's mechanics were not called on to make as many transfers after June 21 as they made earlier because of a reduction in the total number of necessary transfers and because of Respondent's practice of dividing the transfers for reasons of efficiency among Respondent's mechanics and other persons. Where, as here, two equally valid inferences can be drawn, one innocent and the other that an unfair labor practice has been committed, the former should be given preference over the latter. Cf. N.L.R.B. v. McGahey, et al., etc., 233 F.2d 406, 413 (C.A. 5). Drawing the inference of source Accordingly, for reasons already stated I reject it as being unworthy of belief. 36 The record is also silent as to the total number of trucks transferred before June 21 Accordingly. a comparison cannot be drawn between the transfers made by respondent's mechanics and those made by people hired specifically for this purpose 17 Especially is this so in view of the fact that, of the five transfers since June 21, two were made in August by Eisenhauer, who admitted during his interrogation on June 24 that he had signed a card on June 21. 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD innocence, I find that Respondent did not reduce the number of truck transfers made by its mechanics to punish them for having signed authotization cards. Accordingly, I conclude that the evidence does not establish that Respondent denied benefits to its employees because they became members of, or supported, the Union. I will, therefore, recommend that paragraph VI(e) and the relating portions of paragraphs XIX and XXII be dismissed. 4. Surveillance of employees' union activities Finally, in connection with Respondent's claimed inde- pendent violations of Section 8(a)(1) of the Act, the complaint alleges that Respondent engaged in surveillance of its employees' union activity, which it sets forth was carried on by Farney, Respondent's manager. In assessing the evidence adduced by the General Counsel to support this allegation two facts should be borne in mind. The first is the short-lived nature of union activity by Respondent's employees. It started on June 20, 1971, when Laub, then employed as a mechanic by Respondent, arranged for a representative of the Union to meet with Respondent's employees. It seems to have ended the next day upon the conclusion of the meeting, during which authorization cards were signed. The second fact which should be remembered in this regard is the custom followed by Farney of making unannounced visits to the premises of Respondent's lessees. To establish the complaint's surveillance allegation the General Counsel relies on two such visits by Farney in mid-July at about the time of the hearing conducted in connection with the representation petition filed by the Union. On one occasion Farney appeared at a lessee's plant while Eisenhauer, a mechanic in Respondent's employ, was working there. Upon his arrival Farney spoke to Eisenhauer and to a driver who worked for the lessee about a truck's malfunctioning lights, went into the lessee's office, and then left its premises. On the occasion of the second visit, claimed by the General Counsel to support the allegation of the complaint here under consideration, Farney extinguished the lights on his car before driving into the lessee's yard. Allen was on duty there at the time.38 He questioned Farney as to his reason for entering the yard without lights and suggested that Farney "figured" by this tactic to "catch [him] doing something wrong." As he had done during his visit to the location where Eisenhauer worked, Farney, after talking to Allen, entered the lessee's office and then went on his way. Farney's having turned off the lights on his car, as recounted above, and the coincidence in time between his foregoing visits and the hearing in connection with the Union's representation petition might cause a trier of the fact to suspect that their object was to monitor the union activities of Respondent's employees. In my opinion, however, such a suspicion is overcome by the facts. They show that it was Farney's habit to make unannounced nocturnal visits to Respondent's lessees to talk to their dispatchers and to check on the work being done by Respondent's mechanics. They further show that during the visits here under consideration Farney did nothing to indicate that he was not following his usual custom. Finally, and what appears to be a most important fact negating the suspicion aroused by the visits in question is that they were made weeks after the cessation of the short- lived union activity engaged in by respondent's employees. Respondent's knowledge as to this can be presumed, as is well settled, in view of the small number of employees in its garage. However, as has been said countless times suspicion is not a substitute for evidence and the evidence does not persuade me that Respondent violated Section 8(a)(1) of the Act by keeping its employees' union activities under surveillance. Accordingly, I will recommend that para- graph VI(d) of the complaint and the relating portions of paragraphs XIX and XXII be dismissed. B. Facts Concerning Respondent 's Alleged Violations of Section 8(a)(3) of the Act by Discharging an Employee Clifford Laub worked for Respondent as a mechanic from December 21, 1970, until February 1, 1971, and again from February 15, 1971, until June 29, 1971.39 Laub and Edgar Allen, whose employment until June 29 as Respon- dent's service manager has already been described, are brothers-in-law. Like the other mechanics who worked for Respondent, Laub's duties were performed, for the most part, at premises of Respondent's lessees. On February 1, while working outdoors at a lessee's plant, Laub stopped work in midshift because he thought it was too cold to continue. Upon returning to Respondent's garage Laub left a note informing Respondent that he had quit its employ. Notwithstanding Laub's precipitate quitting, and largely as a result of Allen's intercession on his behalf, Laub was rehired by respondent on February 15. As I have found, on June 16 Allen informed Douglas Farney, Respondent's manager, that he wanted to resign as service manager and return to the floor to work as a mechanic. During their conversation on this subject at that time Farney told Allen that "if he went back to the floor ... Laub would have to be terminated because [Respon- dent] did not need to increase [its] unit, and with [his] going back to the floor it would increase [the number of Respondent's mechanics] to four . . . instead of three." Allen replied that he "didn't care ... he had made his decision to return to the floor and . . . was going to stick to it."40 At the time of the foregoing conversation Laub was the most junior mechanic on Respondent's staff and was thought by Farney to be the least qualified. Between June 16 and June 20 Allen and Laub talked 38 Allen had been Respondent's service manager As set forth earlier, following his relinquishment of that position some 2 or 3 weeks before the incident being discussed Allen remained in Respondent's employ as a mechanic 39 Laub's discharge on the last mentioned date is alleged in the complaint as having been violative of Section 8(a)(3) of the Act 40 My findings concerning this conversation between Allen and Farney are based on, and the quotations appearing in the text are taken from. Farney's testimony Allen denied being informed by Farney that his reversion to the position of mechanic would result in the termination of Laub's employment LUBY LEASING, INC 959 with each other about Allen's impending return to the floor as a mechanic. Allen told Laub that he had been informed by Farney that his resuming the position of mechanic would result in the termination of Laub's employment.41 Having been thus forewarned of his imminent discharge, Laub hastened to make arrangements for the meeting, on June 21, between a representative of the Union and Respondent's employees at which they signed authoriza- tion cards. On June 29, a day before the man hired to replace Allen as service manager began working, Allen returned to the floor as a mechanic and Laub was discharged. Upon Laub's dismissal, Allen took over Laub's shift. Although, as has been shown, Farney, Respondent's manager, decided on June 16 to discharge Laub in order to make room for Allen in Respondent's garage, Farney did not notify Laub of his decuon at any time before his dismissal on June 29. Farney's reason for this, as he testified, was that he "felt that if [he] gave [Laub] notice before then . . . one of two things might happen: Number (1) [Laub] would . . . walk off and leave [him] hanging ... until [he could] find a replacement,42 or Number (2) . . if [Laub] did stay on . . . his work would possibly be slow and not be accurate and would jeopardize [Respon- dent's) operation."43 On about August 16 Allen and Laub jointly entered into a lease and an operating agreement with Atlantic Richfield Company (ARCO) whereby they became the lessees and operators of an ARCO automobile service station. The lease was for a term of 1 year and the operating agreement obligated Allen and Laub to keep the station open 24 hours a day. Respondent became aware that Allen and Laub had entered into the foregoing contracts when it received an inquiry from ARCO as to their credit and character. On August 19 Allen quit Respondent's employ in order to devote himself to the operation of the ARCO station. Knowing that Laub was associated with Allen in this venture, Farney, Respondent's manager, did not offer Laub the job Allen had vacated. C. Contentions and Concluding Findings Concerning Respondent's Alleged Violations of Section 8(a)(3) of the Act by Discharging an Employee Respondent argues that it did not discharge Clifford Laub because of his activity in support of the Union. Laub was discharged, Respondent states on brief, in order "to accomodate the return to the bargaining unit of [Edgar Allen ] the service manager and because Laub was the junior most and [in the opinion of Douglas Farney, 41 Laub denied any discussion with Allen concerning his dismissal upon Allen's resumption of work as a mechanic Allen gave no testimony on this subject My finding that this matter was discussed and that Allen told Laub that he would be discharged when Allen returned to the floor is based on Laub's denial, In N L R B v Walton Manufacturing Co, et al, 369 U.S 404, 408, the Supreme Court, quoting with approval from Dyer v. MacDougall, et al, 20I F 2d 265, 269 (CA 2), stated "[T ]he demeanor of a witness may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story, for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assure the truth of what he denies" In an earlier portion of this Decision I set forth my dissatisfaction with Laub's respondent's manager, the] least qualified mechanic in the unit." Respondent's position appears to be well taken. The law respecting discharges is well settled. "Manage- ment can discharge for good cause, or bad cause, or no cause at all. It has, as the master of its own business affairs, complete freedom with but one specific, definite qualifica- tion: it may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids." N L. R. B. v. McGahey, et al., etc, 233 F.2d 406, 413 (C.A. 5). Respondent's explanation for discharging Laub, unlike the explanation for a discharge offered by an employer in another case,44 does not "[fail] to stand under scrutiny." Its asserted reasons for terminating Laub's employment are, as will be shown, well supported by the evidence. Having agreed with Allen when he was promoted to service manager to permit him to resume his position as mechanic when he desired to do so, Respondent was obligated to honor Allen's request, made on June 16, 1971, to return to his former job. However, Respondent did not then, nor at any other material time, have a need for more than three mechanics. As there were already that number, including Laub, on its staff at the time of Allen's request, it was, obviously, necessary for Respondent to remove one mechanic from its roster to accomodate Allen. Laub was the mechanic chosen for dismissal by Farney, Respondent's manager, to make a place for Allen. This choice appears to have been reasonable. Laub was the most junior mechanic on Respondent's staff in point of service and he was, in Farney's opinion, the least qualified.45 Respondent's asserted reasons for discharging Laub are supported by the evidence in several additional respects. Thus, Allen's return to duty as a mechanic and Laub's discharge occurred on the same day, June 29. When Allen resumed work as a mechanic he took over Laub's shift. Finally, in this connection, when Allen quit Respondent's employ Farney did not offer the job vacated by Allen to Laub because Farney knew that Laub was then associated with Allen in a business venture which Farney thought would occupy all of Laub's time for at least a year. However, the evidentiary support found for Respon- dent's asserted reasons for Laub's discharge does not end the inquiry. What must further be determined is whether Laub's union activity played any part in his being chosen for dismissal to make a place for Allen in Respondent's garage. If it did, then, as is well settled, Respondent violated Section 8(a)(3) of the Act. But, Laub's union activity could not have been a factor in his discharge because it had not yet begun on June 16, demeanor while testifying I stated that he "did not impress me as being [a] candid [witness]" and that he "did not appear to be above telling untruths, if by doing so [he] could disadvantage Respondent "(Supra, sec IV, A) 42 In the light of Laub's having done this in February, as recounted above, Farney's assumption that he might. in the circumstances, do so again seems quite reasonable 41 This, too, seems reasonable 44 NLRB v Dant,etal,etc, 207F2d165,167(CA9) 45 Whether Laub was in fact Respondent 's least qualified mechanic is not important. What is important is that Farney thought so In the circumstances of this case Farney's judgment in this regard is not open to question Vermeer Manufacturing Company, 187 NLRB No 128 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the day Farney, Respondent's manager, made the decision to terminate Laub's employment. There is no credible evidence in the record to establish that Laub engaged in any union activity before June 20. Between June 16 and 20 Laub learned from Allen that he was slated for discharge upon Allen's return to the floor to work as a mechanic. Perhaps in an effort to save his job, Laub, on June 20, hastened to arrange the meeting, held on June 21, between the Union's representative and his fellow mechanics. I find, therefore, that Laub's union activity was not a cause for his discharge. Indeed, the reverse seems to be the situation. Laub's knowledge that he was about to be discharged appears to have been the cause for his union activity. Accordingly, I conclude that Laub's discharge was not violative of Section 8(a)(3) of the Act. Consequently, I will recommend the dismissal of paragraph IX of the complaint as well as the relating portions of paragraphs XVIII, XIX, XX, and XXII. D. Facts, Contentions, and Conclusions Concerning Respondent 's Alleged Violations of Section 8(a)(5) of the Act by Refusing To Recognize, and Bargain With, the Union Insofar as is here pertinent, the complaint alleges that Respondent violated Section 8(a)(5) of the Act by refusing to recognize, and bargain with, the Union. The complaint further alleges as an integral part of this claimed unfair labor practice Respondent's asserted independent viola- tions of Section 8(a)(1). As I have already found, on June 22, 1971, after a majority of Respondent's employees had signed cards authorizing the Union to act as their bargaining represent- ative, the Union requested that Respondent recognize, and bargain with, it. Respondent did not accede to this request. Instead, Respondent informed the Union, by letter dated June 28, 1971,46 that it "doubt[ed] that [the Union] represent[ed] an uncoerced majority of [its] employees." In determining violations of Section 8(a)(5) of the Act "under the Board's current practice, an employer's .. . doubt [as to a union's majority] is largely irrelevant."47 Most relevant in ascertaining whether an employer unlawfully refused to bargain by an outright failure to recognize a union representing a majority of his employees in an appropriate unit, as is the case here, is an assessment of the employer's conduct when faced with the union's bargaining request. The Board has traditionally held that in such a situation if the employer engaged in serious independent unfair labor practices he also violates Section 8(a)(5) of the Act. That there has been no erosion in this view of the law was recently made plain by the Board. In United Packing Company of Iowa, Inc., 187 NLRB No. 132, the Board stated that its "historic practice of finding a violation of Section 8(a)(5) . . . where an employer has . . . refused to bargain and has committed serious violations of Section 8(a)(1) remains very much alive, having been specifically affirmed in [N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 620], where the contrary judgment of the Court of Appeals for the Fourth Circuit was reversed." I have found that Respondent committed independent violations of Section 8(a)(I) of the Act. Among these were threats, conditioned on the Union's advent, to close its garage and to reduce the wages of an employee. "Threats of loss of work [which would result from the effectuation of respondent's threat to shut down its plant] and income are a type of threat likely to have the most substantial impact upon employee attitudes and reactions. By their nature they may justifiably be regarded as serious violations of the Act." 48 Accordingly, in consideration of the foregoing and taking into account Respondent's intensive, systematic, and coercive interrogation of the employees who were threatened and the fact that all except one of respondent's independent unfair labor practices were committed imme- diately upon its receipt of the Union's request for bargaining, I conclude that respondent violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union. E. Facts, Contentions, and Conclusions Concerning Respondent 's Alleged Violations of Section 8(a)(5) of the Act by Unilaterally Changing Working Conditions The complaint alleges that Respondent further violated Section 8(a)(5) of the Act by unilaterally changing working conditions.49 Respondent denies that it did so. The law governing this phase of the case is quite clear. An employer required to recognize a union as the representative of his employees, as here, who institutes changes in their working conditions without first bargain- ing with the union violates Section 8(a)(5) of the Act. N. L. R. B. v. Katz, et al., 369 U.S. 736, 743, 747. On July 15, 1971, without prior consultation with the Union, respondent posted the following notice50 on its bulletin board: TO ALL EMPLOYEES You are hereby reminded of the following work rules: 1. Each hourly employee is required to punch a time card at his normal start-up time. Employees will be paid from normal start-up time even if card is punched early, unless an early start-up time has been assigned. 2. Each hourly employee is required to punch out at the end of his normal eight (8) hour day. Normal quit time is eight and one half (8-1/2) hours after start time. 3. Each hourly employee is required to punch out and in for his lunch. 46 Resp. Exh 1 (3) Inasmuch as I believe that a remedy for these alleged changes, if they 47 N L R B v Gissel Packing Co, Inc, et at, 395 U S. 575, 594 were such, would be more effective if fashioned under Section 8(aX5) than 48 Cohen Bros Fruit Company, 166 NLRB 88, 90, under Section 8(a)(I) or (3) they will not be separately considered under 49 The complaint asserts that these alleged unilateral changes were not those sections only violative of Section 8(a)(5) of the Act, but also of Section 8(a)(I) and 5O G C Exh 7 LUBY LEASING, INC. 961 4. It is not company policy (or has it ever been) to stop work before normal quit time, for the purpose of clean-up or clothes change, also all employees should be ready to start work at their normal start time. 5. Each shift is allowed two (2) ten minute coffee breaks to be taken whenever they are desired. However, these breaks should not interfere with any emergency repairs that must be performed durning [sic] his respective shift. Any violations will result in disciplinary action. The General Counsel argues that each item in this notice constituted a change in the working conditions of Respon- dent's mechanics. It is Respondent's position that the notice changed nothing. Findings have already been made concerning the matter here under discussion.51 Those findings show that items I and 2 of the notice and the portion of item 4 dealing with the time at which "employees should be ready to start work" did not change any existing condition of employ- ment. They merely stated rules already in effect. The balance of item 4 deals with Respondent's "policy" relating to cleaning up and changing clothes at shift end. I earlier pointed out that the evidence as to what Respon- dent required of its employees in this regard before July 15 was too inconclusive and confusing to permit a finding to be made. This being so, it is impossible to determine whether item 4, insofar as here relevant, constituted a change in the working conditions of Respondent's employ- ees. As to item 3 of the notice, before July 15 Respondent's employees were, as I have found, required to clock out at the beginning, and to clock in at the end, of their lunch periods. I have also found that they did not do this if, as was usually the case, they were working at the premises of a lessee at lunchtime. On July 17, 2 days after the notice was posted, Respondent's employees pointed out to Douglas Farney, Respondent's manager, the time that would be lost if they were required to return to Respondent's garage each day at lunchtime for the purpose of punching the timeclock. Accordingly, on July 19, item 3 of the notice was changed. The alteration relieved Respondent's employees of the requirement that they punch the timeclock at lunchtime, as originally set forth. Instead, employees were permitted to insert in writing on their timecards the time at which they took their lunch. As thus modified, item 3 of the notice made no real change in the working conditions of Respondent's employees. Before July 15, as I have found, Respondent's employees were permitted to take as many coffeebreaks as they desired during the course of their working day. Item 5 of the notice limits "each shift [to] two ... ten minute coffee breaks." This, in my opinion, is a substantial change in the working conditions of Respondent's employees. Respondent having thus changed the conditions of employment of its mechanics with regard to coffeebreaks without bargaining with the Union, as was its obligation, I conclude that Respondent violated Section 8(a)(5) of the Act. Insofar as is shown by the evidence, it does not appear that Respondent made any other unilateral changes in its employees' working conditions. I will, therefore, recom- mend that all allegations of paragraph X of the complaint be stricken except those relating to the change made by Respondent in its rules dealing with its employees' coffeebreaks. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's unfair labor practices, as found above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII. THE REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8 (a)(1) and (5) of the Act, my recommended Order will require respondent to cease and desist therefrom and to take such affirmative action as will effectuate the purposes of the Act. Concern- ing the latter, the General Counsel urges the entry of a bargaining order. "A bargaining order ... is strong medicine." 52 It should be prescribed, however, as the Supreme Court held in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 610, 614 615, to cure "a [Section ) 8(a)(5) refusal to bargain where an employer has committed independent unfair labor practices which have made the holding of a fair election unlikely or which have in fact undermined a union's majority . . ." The Court went on to say, quoting in part from Franks Bros. Co. v. N.LR.B., 321 U.S. 702, 704, that in such cases if the Board were to "enter only a cease-and-desist order and direct an election . . . it would in effect be rewarding the employer and allowing him `to profit from [his] own wrongful refusal to bargain.' " Finally, and by way of summarizing its extensive discus- sion on this point, the Court stated that where "the possibility of erasing the effects of past [unfair labor] practices and of ensuring a fair election . . . is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue." In the light of the foregoing principles it is my opinion that a bargaining order should issue in this case to remedy Respondent's unfair labor practices. Like the unfair labor practices present in Gissel, Respondent's threats to reduce the wages of one mechanic and to close its garage, which would result in loss of work to all, were so permeative that "the possibility of erasing [their] effects and of ensuring a fair election is slight." Such threats, the Board has held, "may well be sufficiently pervasive in their impact to prevent a fair election and to undermine a union's support." Cohen Bros. Fruit Company, 166 NLRB 88, 90. The Board's conclusion in Cohen was based on threats of loss of work and income "directed at no more than 2 employees in a unit of 15." Here, the "impact" of the 51 See , supra, sec IV, B, 3 52 N L R B v Flomatic Corporation, 347 F 2d 74, 78 (C A 2) 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threats in preventing a fair election and in undermining the Union's support is deeper, having been directed at three employees in a unit whose possible maximum is five. In deciding that a bargaining order is warranted here I have also taken into account Respondent's intensive, systematic, and coercive interrogation of its employees. This was so intermingled with its threats as to make inseparable the effects of the interrogation upon Respon- dent's mechanics from the pervasive impact the threats had upon them. Accordingly, my recommended Order will require Respondent, by way of affirmative action, to bargain with the Union upon request. Because of the seriousness of Respondent's unfair labor practices I will also recommend the inclusion of broad cease-and-desist provisions. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the following conduct Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act: (a) Coercively interrogating employees concerning their, and other employees', attitudes toward, knowledge of, and activities on behalf of, the Union. (b) Threatening to close its plant and to reduce the wages of employees should the Union succeed in becoming the recognized exclusive collective-bargaining representative of its employees. 4. All service department employees at Respondent's Tonawanda, New York, plant and all mechanics employed at Respondent's satellite operations in Rochester, New York, and Cony, Pennsylvania, excluding all office clerical employees, watchman, guards, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining. 5. At all times material herein the Union has represent- ed a majority of the employees in the unit set forth in Conclusion of Law 4, above. 6. By the following conduct respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(5) of the Act: (a) Failing and refusing to recognize and bargain with the Union as the exclusive collective-bargaining represent- ative of the employees in the unit set forth in Conclusion of Law 4, above. (b) Changing terms and conditions of employment of employees in the unit set forth in Conclusion of Law 4, above, concerning their taking coffeebreaks without bargaining thereon with the Union. 7. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) of the Act by discharging Clifford Laub. 8. The unfair labor practices engaged in by Respon- dent, as set forth in Conclusions of Law 3 and 6, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 53 ORDER Respondent, Luby Leasing, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their, or other employees', attitudes toward, knowledge of, activities on behalf of, or as to any other matter relating to, District No. 76, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. (b) Threatening employees with the closing of any of its garages or plants, or the reduction of wages, or any other form of reprisal, or effectuating any such threats, for joining assisting, or in any manner supporting District No. 76, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. (c) Threatening to close any of its garages or plants, or to reduce wages, or to take any other form of reprisal against employees, or effectuating any such threats, should District No. 76, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, succeed in becoming the recognized collec- tive-bargaining representative of any of its employees. (d) Failing or refusing to recognize District No. 76, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive collective-bargaining representative of its employees in the following appropriate unit: All service department employees at its Tonawanda, New York, plant and all mechanics employed at its satellite operations in Rochester, New York, and Corry, Pennsylvania, excluding all office clerical employees, watchmen, guards, and supervisors as defined in the National Labor Relations Act, as amended. or failing or refusing to bargain with District No. 76, International Association of Machinists and Aerospace Workers, AFL-CIO, respecting rates of pay, wages, hours, or other terms or conditions of employment of its employees in the aforesaid appropriate unit. (e) Unilaterally changing any conditions of employment of its employees in the aforesaid appropriate unit, or in any other manner refusing to bargain with District No. 76, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive collective-bargaining representative of its employees in the aforesaid appropriate unit. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, loin, or assist labor organizations, to bargain collectively through representatives of their own 53 In the event no exceptions are filed as provided by Section 102 46 of Section 102 48 of the Rules and Regulations, be adopted by the Board and the Rules and Regulations of the National Labor Relations Board, the become its findings. conclusions, and order, and all objections thereto shall findings, conclusions, and recommended Order herein shall, as provided in be deemed waived for all purposes LUBY LEASING, INC. choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, 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 in conformity with Section 8(a)(3) of said Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Upon request, recognize and bargain with District No. 76, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive collective- bargaining representative of its employees in the aforesaid appropriate unit respecting rates of pay, wages, hours, or other terms or conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Restore the practice in effect before July 15, 1971, concerning the taking of coffeebreaks by its employees in the aforesaid appropriate unit and continue said practice until it shall have been the subject of collective bargaining with District No. 76, International Association of Machin- ists and Aerospace Workers, AFL-CIO. (c) Post at its premises in Tonawanda and Rochester, New York, and Corry, Pennsylvania, copies of the attached notice marked "Appendix." 54 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by its authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.55 IT IS FURTHER ORDERED that paragraphs VI(b), VI(d), VI(e), and IX of the complaint and the relating allegations of paragraphs XVIII, XIX, XX, and XXII of the complaint be, and they hereby are, dismissed. IT IS FURTHER ORDERED that the allegations of paragraph X of the complaint, except those relating to the change in Respondent's rules concerning the taking of coffeebreaks by its employees, be, and the same hereby are, stricken. 54 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 " 55 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 3, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith " 963 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to carry out the order of the Board, and abide by the following: WE WILL NOT question you about anything connect- ed with District 76, International Association of Machinists, or any other union. WE WILL NOT close any of our garages, or reduce your wages, and we will not threaten to do any of these things because you join, sign a card for, or help District 76, International Association of Machinists, or any other union, or because you have already done any of these things. WE WILL NOT close any of our garages, or reduce your wages, and we will not threaten to do any of these things if District 76, International Association of Machinists, or any other union becomes your bargain- ing representative. WE WILL NOT change any condition under which you work without first talking about it with District 76, International Association of Machinists. - WE WILL go back to the coffeebreak system we had before July 15, 1971, and WE WILL NOT change it without first talking about it with District 76, Interna- tional Association of Machinists. WE WILL, if we are asked to do so, recognize and bargain with District 76, International Association of Machinists, about your rates of pay, wages, working hours, and other matters relating to your work and employment. If we come to an agreement about any of these things with District 76, International Association of Machinists, we will put that agreement in writing and sign it. WE WILL RESPECT YOUR RIGHT TO FORM ANY UNION, TO JOIN ANY UNION, TO HELP ANY UNION, AND TO BARGAIN WITH US THROUGH ANY UNION. WE WILL ALSO RESPECT YOUR RIGHT NOT TO DO ANY OF THESE THINGS, EXCEPT AS REQUIRED BY LAW. We have no objection to our employees becoming or remaining members of District 76, International Associa- tion of Machinists, or of any other union. Dated By LUBY LEASING, INC. (Employer) (Representative) (Title) 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced by Any questions concerning this notice or compliance with anyone. its provisions may be directed to the Board's Office, Ninth This notice must remain posted for 60 consecutive days Floor, Federal Building, 111 West Huron Street, Buffalo, from the date of posting and must not be altered, defaced, New York 14202, Telephone 716-842-3100. or covered by any other material.