Courtesy Volkswagen, Inc.

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Courtesy Volkswagen, Inc. and Local 259, Internation- al Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Cases 29-CA-2496 and 29-CA-2627 November 7, 1972 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 9, 1972, Administrative Law Judge' Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, the Respondent filed 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified herein.3 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 Administrative Law Judge and hereby orders that Respondent, Courtesy Volkswag- en, Inc., Woodbury, New York, its officers, agents, successors and assigns, shall take the action set forth in said recommended Order, as herein modified. 1. Delete in paragraph 1(g) the words "In any like or related manner" and substitute the words "In any other manner." 2. Substitute the attached notice for that of the Administrative Law Judge. I The title of "TnaL Examiner" was changed to "Administrative Law Judge" effective August`19, 1972. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge , It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings. 3 In view of the nature of the Respondent's unfair labor practices, we deem a broad order appropnate Accordingly, we shall amend the Administrative Law Judge's recommended Order to this extent WE WILL, upon request, bargain collectively in good faith with Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, as the exclusive representative of our employees in the unit described below with respect to the wage reopener. The appropriate unit is: All service shop employees of the employer located at the employer's 8025 Jericho Turnpike location, excluding office clerical employees, new and used car salesmen, guards and supervisors as defined in the Act. WE WILL NOT deal individually with our employees concerning wages in derogation of their bargaining representative or threaten our employees with discharge or lockouts or give parties for them to induce them to accept our wage offers. WE WILL NOT offer our employees money to withdraw from the Union. WE WILL NOT threaten our striking employees with bodily harm or discharge to induce them to abandon the Union and return to work. WE WILL offer to J. Carley immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay suffered by reason of our refusal to reinstate him on November 8 or 9, 1971. WE WILL, upon application, offer immediate and full reinstatement to Narine Ramlogan, Harry Ramdath, Daniel Ruffi, Andrew Holokyrs, Harry Singh, Michael Morgan, and Brian Mor- gan and we will make each of them along with Solomon Patterson whole for any loss of pay suffered as a result of our refusal to reinstate them on November 8 or 9, 1971, until the date each employee was offered reinstatement in February 1972. WE WILL NOT discourage membership in or support of Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, or any other labor organization by discharging any of our employees or by discharging or refusing to reinstate any of our employees who join a lawful strike and who are entitled to reinstatement after they have made proper application, or by other- 200 NLRB No. 15 COURTESY VOLKSWAGEN, INC. 85 wise discriminating against any employees in regard to hire, tenure of employment, or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, loin, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. COURTESY VOLKSWAGEN, 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, 16 Court Street, Fourth Floor, Brooklyn, New York 11241, Telephone 212- 596- 3535. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE discharging an employee; soliciting striking employees by threats and promises to abandon the Union and return to work; and by discharging and refusing to reinstate striking employees. It was further alleged the strike was an unfair labor practice strike caused and prolonged by Respondent. Respondent in its answer filed on February 22, 1972, denied having violated Section 8(a)(1),(3),or (5) of the Act. The issues are whether Respondent violated Section 8(a)(l),(3),and (5) of the Act by bargaining with the Union in bad faith or by bargaining directly with the employees; whether Respondent made threats or promises to employ- ees to accept Respondent's wage offer; whether Respon- dent through threats or promises solicited striking employ- ees to abandon the Union and return to work; whether employees were discriminatorily discharged and refused reinstatement; and whether the strike was an unfair labor practice strike caused or prolonged by Respondent. At the hearing the parties were afforded full opportunity to introduce relevant evidence, to examine and cross- examine witnesses, to argue orally on the record, and to submit briefs. Upon the entire record in this case and from my observation of the witnesses, and after due consideration of the brief filed by Respondent,2 I hereby make the fol- lowing: 3 Findings and Conclusions 1. THE BUSINESS OF THE RESPONDENT Respondent, a New York corporation, with its principal office and place of business located at Woodbury, New York, is engaged in the retail sale, servicing and distribu- tion of automobiles and related products. During the past year Respondent's gross revenues derived from its opera- tions exceeded $500,000 and it purchased and received automobiles, automobile parts, and other goods and materials valued in excess of $50,000 which were shipped directly to it in New York from places located outside the State of New York. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. THOMAS D. JOHNSTON, Trial Examiner: These cases were heard at Brooklyn, New York on March 8, 9, and 10, 1972, pursuant to charges filed by Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (herein referred to as the Union) on August 18 and November 26, 1971,1 and a consolidated complaint issued on February 14, 1972. The consolidated complaint alleges that Courtesy Volkswagen, Inc., (herein referred to as Respondent) violated Section 8(a)(l),(3), and (5) of the National Labor Relations Act, as amended (herein referred to as the Act) by bargaining with the Union in bad faith; bargaining directly with the employees; threatening employees and promising them benefits to accept Respondent's wage offer; temporarily I All the dates referred to are in 1971 unless otherwise stated 2 Neither the General Counsel or Charging Party submitted briefs 3 Respondent's motion to dismiss the allegations in the complaint, alleging Parts Manager Harry Wright offered employees certain benefits to II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Local 259, Interna- tional Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent and the Union are parties to a collective- bargaining agreement effective from February 10, 1970, until July 1, 1972,4 covering a bargaining unit described as "all service shop employees of the employer located at the induce them to accept Respondent's wage offer, will be disposed of by my findings and conclusions infra, without requiring a specific ruling 4 A memorandum of agreement between the parties , although received in evidence was not included in General Counsel's exhibits However, in (Continued) 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer's 8025 Jericho Turnpike location excluding office clerical employees, new and used car salesmen, guards and supervisors as defined in the Act."5 Appendix "A" subsection (b) of this agreement provides in pertinent part as follows: "The parties hereto agree that effective July 1, 1971 this agreement shall be reopened for the purpose of renegotiating wages only." The unsigned collective-bargaining agreement was iden- tified by Respondent's President Frank O'Connor, who also verified there was a July wage reopener. This agreement, which was the initial collective-bargaining agreement between the parties, resulted from negotiations participated in by President O'Connor and Attorney James J. Dean for Respondent and Business Representative Fred Velez, Brian Morgan, and Andrew Holokyrs for the Union. Both Morgan and Holokyrs are employees in the bargaining unit and in addition to serving on the bargaining committee held the positions of shop steward and assistant shop steward, respectively. During negotia- tions Business Representative Velez acted as spokesman for the Union. The Union also represents employees of other employers including those of Queensboro Volkswagen, Inc., with which it was negotiating an agreement in the spring of 1971. The issues involved in the instant cases arose out of the wage reopener clause. B. Bargaining Directly With the Employees; Threatening and Promising Employees Benefits to Accept Respondent's Wage Offer and the Discriminatory Discharge of Narine Ramlogan6 Shop Steward Morgan testified Respondent's Service Manager Bruce Kitchen 7 broached the subject of the wage reopener around February at which time he inquired what Morgan had in mind. When Morgan replied there was an unwritten agreement they were to get the same wages as negotiated at Queensboro8 Kitchen commented there should be no problem. Around the latter part of March pursuant to Kitchen's request Morgan informed him of the rates agreed on in the Queensboro agreement .9 Kitchen again commented there should be no problem. However, Shop Steward Morgan testified, around the first part of June, Kitchen on several occasions asked him how the employees felt about accepting a 7-percent wage increase because the Company could not afford to give them the Queensboro rates.i° Morgan's replies were while he didn't have any authority to accept or reject his offers the employees would not be pleased with anything less than the Queensboro rates. Morgan stated he further informed Kitchen if those rates were not going to be given he would inform the Union to start negotiations. Service Manager Kitchen, who had been authorized by view of the record, such memorandum could not affect the disposition of these cases 5 Respondent in its answer admitted the appropriateness of the bargaining unit and that the Union represented the employees. 8 The spelling of Narine Ramlogan 's name appears as contained in the record since the consolidated complaint spelled his first name as both Narine and Nonne. r Respondent amended its answer admitting Bruce Kitchen was a supervisor within the meaning of the Act President O'Connor to negotiate wages, denied he had ever told Morgan the Company would pay the Queensboro rates. According to him, in early June, Morgan informed him the Union wanted to reopen wages in accordance with the agreement and were requesting the Queensboro wage package. Kitchen responded by advising Morgan he would think it over and make an offer. Kitchen's offer presented to Morgan 5 or 6 days later included a 60-cents-an-hour increase for the A mechanics effective July 1 with an additional 30 cents on January 1, 1972; a 40-cents-an-hour increase for the B mechanics effective July 1 with an additional 25 cents increase on January 1, 1972; a 30-cents-an-hour increase for the used car reconditioning employee effective July 1 with an additional 10 cents increase on January 1, 1972; a 20-cents- an-hour increase for the utility category employees effective July 1 with an additional 10 cents increase effective July 1, 1972; and a 40-cents-an-hour increase for the A parts employee effective July 1 with an additional 25 cents increase on January 1, 1972. Morgan's response was although he was not satisfied with the offer he would have to bring it up to the employees. Shop Steward Morgan testified Kitchen subsequently proposed offering the employees the Queensboro rates without incentive pay or a $1-an-hour raise and half of the incentive pay over 40 hours, or a 10-percent pay increase with the same incentive pay over 40 hours. On several occasions he requested Morgan to urge the employees to accept the proposal which Morgan refused. According to Morgan on one occasion Kitchen held a meeting of the shop employees at which he presented the proposal to the employees. Although Kitchen told the employees they would get laid off and he would replace them with B mechanics the proposal was not accepted. Since no other witnesses corroborated Morgan's testimony concerning this alleged meeting at which all of the employees were allegedly present, I do not find the evidence sufficient to establish such a meeting was held. Morgan on several occasions was confused about the dates and numbers of meetings held and this alleged meeting was not referred to in his direct examination. Respondent on June 15 treated the shop employees which included the bargaining unit to a paid-for dinner at Manero's Steak House.ii Similar meetings had been held previously where, as here, shop problems were discussed. However, Shop Steward Morgan, Assistant Shop Steward Andrew Holokyrs, and Narine Ramlogan testified Service Manager Kitchen also brought up the subject of wages. According to both Morgan and Holokyrs, Service Manag- er Kitchen presented the employees with some written figures which he described as Respondent's final offer telling them it was all the Company could afford. Although some of the employees including Holokyrs looked at the 8 No evidence was adduced at the hearing to establish any such unwritten agreement existed 9 The new Queensboro agreement was effective from April 28, 1971, until April 27, 1973 10 President O'Connor confirmed Respondent's first offer was given in percentage figures 11 No allegation was made in the consolidated complaint that Respon- dent violated the Act by paying for the employees' dinners at this meeting COURTESY VOLKSWAGEN, INC. figures presented both Morgan and Holokyrs informed the employees and Kitchen he had no right to bargain with them and told them they shouldn't bargain with Kitchen or get involved. Morgan also recalled Kitchen telling another employee Dan Ruffin 12 if he went on strike they would be out indefinitely and that Kitchen encouraged the employ- ees to look at the offer by telling them if they wanted to be hard-nosed they would all end up walking the sidewalks. Holokyrs could not recall and no evidence was presented to establish the specific offer made by Kitchen on that occasion. Service Manager Kitchen's version was Holokyrs brought up the subject by asking him how the Company stood on wages. However, before he could reply, Morgan interrupted by stating they had already discussed a package and mentioned the amounts. When Holokyrs inquired whether he felt that was all the Company could afford, Kitchen replied it was a fair and equitable pay raise. Kitchen denied there was any other conversation concerning wages or that Morgan or Holokyrs had told him he could not discuss wages with the employees as well as denying the other remarks attributed to him. However, Respondent's Parts Manager Harry Wright,13 who testified Holokyrs brought up the subject by asking what they were going to get in the raise coming up under the contract, stated it was Kitchen rather than Morgan who supplied Holokyrs with the figures. Wright, who was seated at the opposite end of the table from Kitchen, stated the employees at his end of the table seemed satisfied with the figures presented and he heard Kitchen discussing with Holokyrs and Morgan the difference in wages between the A and B mechanics and Kitchen informing them that percentage wise the raise should be the same. Wright could not recall any mention of a strike or either Holokyrs or Morgan informing Kitchen he couldn't discuss wages with the employees. Wright denied Kitchen passed out anything in writing to the employees. I credit the testimonies of Morgan, Ramlogan,14 and Holokyrs and find Service Manager Kitchen brought up the subject of wages at the meeting and presented the employees with Respondent's wage offer despite being admonished not to bargain with the employees. Parts Manager Wright corroborated their testimonies that it was Kitchen rather than Morgan who presented the figures thereby contradicting Kitchen's testimony it was Morgan. In addition to being contradicted by Respondent's own witness, Kitchen, who testified in an evasive manner and professed ignorance of matters reasonably within his knowledge, did not impress me as a credible witness and to the extent his testimony is uncorroborated herein I discredit it. Regardless of who initiated the subject both Wright and Kitchen admitted the employees were told of Respondent's offer despite the fact it had never been presented to the Union. Since neither Ramlogan, Holo- kyrs, or Daniel Ruffin corroborated Morgan's testimony about the strike being mentioned I do not find the evidence sufficient to establish the strike was discussed. 12 Although Dan Ruffim testified he was not questioned concerning this incident. 13 Respondent amended its answer admitting Harry Wright was a supervisor within the meaning of the Act. 14 In making these and subsequent credibility resolutions, I have 87 Shop Steward Morgan testified on several occasions following the dinner meeting Service Manager Kitchen informed him if the employees didn't accept Respondent's offer they would probably be out on strike indefinitely and probably never get theirjobs back. Morgan's response was the employees wouldn't be afraid to strike if necessary. He also told Kitchen while he didn't want to accept or reject his offers and had no authority without the Union to ratify any agreements he preferred the Queensboro rates. Shop Steward Morgan testified around June 30 Kitchen solicited him to urge the employees to accept Respondent's offer otherwise there might be a lockout. According to Morgan, Kitchen also offered him $500 if he would drop out of the Union. Morgan also testified between June 15 and July 8 after having received complaints from various employees Kitchen had threatened or scared them about losing their jobs if they didn't accept his offer,15 he confronted Kitchen with the accusations and requested Kitchen to stop negotiating with the employees individual- ly. Kitchen's reply was he wasn't negotiating but only showing them facts and figures to make them realize what the Union was asking was absurd and Respondent's offer was all it could afford. Morgan informed Kitchen any negotiations should be conducted with the authorized union representatives and inquired whether he should call Business Representative Velez which offer Kitchen de- clined. Service Manager Kitchen acknowledged around the middle of June following the dinner meeting he informed Morgan Respondent could possibly afford to change its offer from 60 cents and 30 cents to 70 cents and 20 cents which would give the employees another 10 cents an hour for the first 6 months. He denied offering $500 to Morgan to drop out of the Union and making any threats to employees about what would happen if they didn't accept Respondent's proposed offer. I credit Shop Steward Morgan's testimony concerning his conversations with Service Manager Kitchen pertaining to the subject of the wage reopener and further find Service Manager Kitchen informed Morgan there would probably be a strike and employees would probably be out indefinitely and probably never get their jobs back and threatened him that there might be a lockout if they didn't accept Respondent's wage offer. I further find Kitchen offered him money to drop out of the Union. For reasons previously stated I discredit Kitchen's denials in addition to the fact this conduct is consistent with Kitchen's unlawful solicitation of employees through threats to accept Respondent's wage offer discussed infra Shop Steward Morgan, Assistant Shop Steward Holo- kyrs, and Narine Ramlogan all testified around July 8, Service Manager Kitchen held a meeting of the employees in the bargaining unit in the backyard during coffeebreak. According to their undenied testimonies they were in- structed to attend this meeting by Respondent's Foreman George Hickey. Morgan testified Kitchen presented the employees with what he said was Respondent's final offer considered those statements contained in the affidavits of both Morgan and Ramlogan which were alleged as being inconsistent with their testimonies and offered for impeachment purposes as well as their explanations of such alleged discrepancies. 15 No witnesses testified concerning these alleged threats by Kitchen. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and told them if they couldn't come to an agreement that day there would be a lockout the next day. The offer included a 70-cents-an-hour raise for the A mechanics retroactive to July 1 with an additional 25-cent raise on January 1, 1972 and a 50-cents-an-hour raise for the B mechanics and other classifications retroactive to July 1 with an additional 15-cent raise effective January 1, 1972.16 When Morgan protested Kitchen's conduct was illegal, Kitchen asked the employees if they were going to let Morgan speak for them and be responsible for them losing their jobs. He also asked them if they wanted to lose their jobs and go on strike. Kitchen repeated it was Respon- dent's final offer and told them if they didn't accept it they would be locked out the next day. Kitchen then asked each employee individually how they felt about the offer. When Narine Ramlogan, who was the first employee asked, replied he didn't like it, Kitchen cursed him and told him to pack his tools and get out on the street. While questioning each employee about how they felt about the offer Kitchen reminded them of favors which Respondent had done for them. Morgan continued to protest Kitchen's action and of putting the employees on the spot by the vote and told Kitchen if he wanted to continue offering wages he would call Business Representative Velez about the procedures. Kitchen 'responded by saying what he said went. When Morgan asked him what he meant and stated Business Representative Velez would have to ratify any agreement, Kitchen replied he didn't care about Velez or the other union representatives, naming a few, and after cursing the Union told the employees they were the Union and didn't need anything. Morgan told Kitchen the employees could not accept the offer and the Queensboro wages were still theirs. After a majority of the employees had agreed to accept the offer, Kitchen then told them they didn't need the Union and nothing had to be signed because the employees had agreed upon it. Assistant Shop Steward Holokyrs corroborated Mor- gan's testimony about Kitchen presenting the employees with a final retroactive wage offer, questioning each employee how he felt, reminding them of company favors and Ramlogan's discharge. Holokyrs also recalled Kitchen telling the other employees if they didn't like the offer they could join Ramlogan in the street and didn't need any union officials to bargain because Shop Steward Morgan was there. Holokyrs also protested Kitchen's action by telling the employees Kitchen wasn't allowed to bargain with them. According to Holokyrs only three employees, Brian Morgan, Ramlogan, and himself, refused to accept the offer and as the meeting ended he heard Kitchen comment it was all sewed up and there was nothing more to discuss. Narine Ramlogan further corroborated their testimonies by testifying Kitchen told them it was the Company's last offer because they couldn't pay anymore and if they did not accept the offer that day the doors would be locked the next day. Kitchen, after mentioning favors which the 16 President O'Connor corroborated the amounts of the offer made with the exception the utility classification would receive a 30-cents-an-hour increase on July 1 with an additional 10-cent raise January 1, 1972. 17 Since Service Manager Kitchen's testimony concerning the date of the meeting was corroborated by President O'Connor and in view of Morgan's confusion over dates and Holokyrs' inability to recall the exact date of this Company had done for employees, including one for Ramlogan, asked him how he felt about the Company's offer. When he replied he didn't like it, Kitchen cursed him and told him to pack his tools and get out. Ramlogan then left the meeting and went into the shop accompanied by Foreman George Hickey to get his tools. However, when Foreman Hickey did not help him pack his tools he decided to wait and talk to Shop Steward Morgan about his termination. Service Manager Kitchen acknowledged attending a meeting with the employees but claimed it occurred on June 28 rather than July 8.17 However, he claimed he attended at Morgan's request after he had given Morgan permission to hold a meeting with the employees in the backyard. Kitchen testified when he arrived Morgan asked him if the 70-cent and 20-cent package was the maximum the Company could afford to pay them. After he replied it was there was some discussion between Morgan and the employees with some of them expressing their feelings for or against it. Kitchen stated he told the employees President O'Connor was being fair and equitable and mentioned specific examples of favors which the Company had done for employees. According to him Morgan asked the employees if they would like to have a vote as to whether the package was good or bad. When Kitchen indicated he thought he should not be there he was asked to stay. Morgan then asked each individual employee if he was for or against the package offered by Respondent. As he recalled the vote was seven for accepting Respondent's offer and six against including a vote against by Brian Morgan for his brother Michael Morgan who was not present. When the results were completed Morgan cursed the employees who didn't respond. Kitchen informed Morgan the conclusion they had come to would have to be put in writing and left. Kitchen denied telling Narine Ramlogan to pack his tools and leave or making any similar remarks to any other employees or about the Union. Based upon the testimonies of Morgan, Ramlogan, and Holokyrs, which I credit, I find that Service Manager Kitchen held the meeting with the employees, made them a final retroactive wage offer,18 threatened them with discharge or a lockout if they didn't accept the wage offer, polled them individually how they felt about accepting the wage offer, and discharged Ramlogan19 for opposing the offer all despite protest of Kitchen's conduct by both Morgan and Holokyrs. In making these findings, I discredit Kitchen's version for reasons previously stated. Moreover, while Kitchen claimed Morgan called the meeting the undenied testimonies establish the employees were instructed to attend by Respondent's Foreman Hickey. Further, Kitchen's actions in dealing directly with the employees while disregarding the Union is consistent with his previous conduct. Kitchen admitted the employees voted on Respondent's wage offer and claimed he had meeting, I find such meeting was held on June 28 rather than July 8. is According to Respondent the wage rate would become effective July 1 but would be paid retroactive from the date subsequently ratified by Business Representative Velez. 19 Ranilogan's discharge, as discussed infra, was only temporary. COURTESY VOLKSWAGEN, INC. reached an agreement with them notwithstanding such wage offer had never been presented to the Union. That same afternoon pursuant to their inquiry Service Manager Kitchen advised Morgan, Holokyrs, and Ramlo- gan that Ramlogan had not been terminated. According to Morgan, Kitchen's explanation was he had just gotten hot under the collar. Morgan further advised Kitchen regard- less of the outcome the Union still had to ratify any agreement and since it required a unanimous vote and the three of them didn't accept anything less than the Queensboro rates, the matter would still have to be negotiated. Service Manager Kitchen acknowledged Morgan, Ram- logan, and Holokyrs had visited his office later that day but claimed Morgan said they wanted a higher wage rate than everybody else because they were not happy with the wage rates which were offered. Kitchen replied he was not permitted to do that. He denied any statements were made concerning Ramlogan's job. Andrew Holokyrs denied either Morgan, Ramlogan, or himself had asked Kitchen about giving them additional money than offered the other employees. I credit the testimonies of Morgan, Holokyrs, and Ramlogan as to the purpose of their visit concerning Ramlogan's termination and find contrary to Kitchen's contention they were not seeking higher wages for themselves but only reminding Kitchen that regardless of his unlawful conduct in reaching an agreement with the employees he was still required to negotiate with the Union. Although Ramlogan stated he didn't punch out he was uncertain whether he performed any more work that day. According to his undenied testimony the signout time on his timecard, which was in ink rather than punched by the timeclock, was not made by him. Although Respondent's records indicate he did perform additional work that afternoon, inasmuch as no contention has been made he suffered any loss of pay as a result of his temporary termination, no finding is necessary. Moreover Service Manager Kitchen acknowledged. the timecards themselves do not show actual time spent performingjobs. According to Morgan and Holokyrs that same afternoon around quitting time Respondent held a beer and pizza party at the shop for the employees. According to Morgan's undenied testimony, Service Manager Kitchen following the meeting told them the beer and pizza were on him. The timing of this impromptu party, occurring following acceptance by the employees of Respondent's wage offer without any explanation being offered, leads me to conclude and I so find such party was given to reward them for their acceptance of the wage offer and to induce them to obtain the Union's approval of such offer. Respondent's contention Shop Steward Morgan was acting as the Union's agent, and therefore its negotiations with him as well as the employees were lawful, is rejected. According to Morgan's undenied testimony which I credit, on at least 10 or 12 different occasions when Service Manager Kitchen talked to him about Respondent's wage offer he informed him he had no authority to negotiate on 89 the wage reopener. Further, Respondent offered no probative evidence which would refute his denials. C. Bad Faith Bargaining According to Shop Steward Morgan, after he had reported Kitchen's meeting with the employees to the Union, Business Representative Velez called him on July 9 at the shop and they had a three-way telephone conversa- tion with President O'Connor. Velez informed O'Connor the proceedings on the previous day were illegal, men- tioned filing unfair labor practice charges, and requested negotiations to begin as soon as possible. After O'Connor inquired whether Velez had any written demands a meeting was arranged for July 12. When Business Representative Velez, Assistant Shop Steward Holokyrs, Michael Morgan, and himself attempt- ed to see President O'Connor which according to Morgan's cross-examination occurred on July 10 rather than July 12, O'Connor was unavailable. Morgan stated they gave the Union's written proposal to Service Manager Kitchen who pursuant to their request indicated there would be no problem in making the wages retroactive. Kitchen in- formed them he would talk with O'Connor and they could call each other about an appointment. Although Morgan claimed the proposal contained rates higher than the Queensboro rates the proposal was not offered into evidence. Service Manager Kitchen denied such a meeting took place or that he had received such a proposal from the Union. Shop Steward Morgan testified on July 12 when he and Business Representative Velez met with President O'Con- nor, O'Connor informed them he had received their proposals and thought they were ridiculous. Velez replied they were only for negotiations. O'Connor told them if they were still insisting on the Queensboro rates they were wasting their time. After Velez indicated if O'Connor refused to discuss the matter he would not be bargaining in good faith and that he would have to bring that charge up with the other unfair labor practice charges against Kitchen, O'Connor agreed to discuss the matter. Michael Morgan, a member of the negotiating committee, was called into the meeting. Velez started by mentioning there was an unwritten agreement between the Company and Union about following up the Queensboro rates and he couldn't understand what was holding it up. He accused Kitchen of having tried to split up the shop and bust the Union. Velez reminded O'Connor the Union had given the Company its proposal and O'Connor had informed him the Company was preparing a, proposal. The proposal presented by O'Connor was the same proposal as that previously offered the employees by Kitchen. Velez rejected it. When Velez inquired about whether a wage increase would be retroactive as Kitchen had promised the employees O'Connor replied there would be no retroactivi- ty. Another appointment was arranged for July 14. Morgan testified the July 14 meeting was attended by Business Representative Velez, Michael Morgan, and himself for the Union and President O'Connor and Service Manager Kitchen for Respondent. Velez presented the Queensboro rates as the Union's proposal and O'Connor 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD renewed Respondent's previous offer. Velez informed them he was going to discuss the matter with the Union's President Meyers and inform the employees they would probably have to prepare for a strike and they would file unfair labor practice charges. O'Connor's response was he didn't want to talk anymore because it had ruined his day and requested they put it over for a couple of weeks. President O'Connor testified his first contact with any union representative occurred on July 620 when Business Representative Velez accompanied by Brian Morgan informed him he was there for wage negotiations. O'Con- nor's reply was he thought they had a deal and were just there to ratify it.21 Velez responded angrily and informed him that was not the case and requested permission to speak to the employees which request was granted. Velez, after speaking to them, began cursing O'Connor accusing him of having propagandized the employees which he had no right to do and after stating he wasn't going to accept the wage vote or ratification, requested O'Connor to discuss it. According to O'Connor when he agreed to discuss it Velez suggested he would call him later in the week about a meeting. O'Connor also told him the meeting with the employees had been called by Morgan on company time rather than by Kitchen on coffeebreak. During the meeting Velez mentioned the Queensboro rates as a package and told him it provided for $1.29 increase for A mechanics and a 65-cent increase for B mechanics. When O'Connor asked about incentive, work conditions, and classifications, Velez replied he didn't really want to discuss that. He also told Velez about the raise offered being retroactive. O'Connor stated the next meeting with Velez was held on July 9, attended by Brian Morgan and Andrew Holokyrs. After discussing the wage settlement which Service Manager Kitchen had allegedly reached with the employ- ees O'Connor told him he thought they should ratify it and that under the agreement the employees would receive retroactive pay from July 1. Velez's response was it was unacceptable because it was not the Queensboro package. O'Connor replied he was not aware of what the Queens- boro package was. Whereupon, Velez replied it was the standard in the industry. O'Connor brought up specific Volkswagon dealerships and the fact they were paying less per hour and explained the Company's incentive pay. O'Connor also mentioned some of his own employees were making more than the current union wage. According to O'Connor the meeting ended with Velez suggesting they give it more time and agreed to meet later with a time to be arranged. O'Connor testified the following Monday there was a three-way telephone conversation between Velez, Brian Morgan, and himself, at which time he told Velez the Company's position was a good one and they had given the employees a generous raise and with the incentive pay they would be making more than at any other dealer. Velez requested and it was agreed they would meet again on July 15. O'Connor denied he had received any union proposal from Service Manager Kitchen and to his knowledge none had been given to Kitchen by the Union. Service Manager Kitchen testified he attended one meeting held between July 6 and July 12, at which Business Representative Velez told President O'Connor he was there to negotiate wages and the package they wanted was $1.29 and 65 cents. O'Connor replied the package previously offered through Brian Morgan was the package the Company stood on. Velez concluded by saying they would have to set a date for future negotiations. The last meeting held prior to the strike occurred on July 15. On that day Business Representative Velez, Union President Sam Meyers, Union Representative Chip Mar- selli, Michael Morgan, and Shop Steward Morgan met with President O'Connor and Service Manager Kitchen. Shop Steward Morgan testified President Meyers acted as spokesman for the Union and told them what the Union's scale and Queensboro rates were and mentioned there was an unwritten agreement Respondent was supposed to pick up the Queensboro rates and Respondent had led the shop to believe it was settled until June when it offered the employees a ridiculous 7-percent figure. Meyers, after threatening to bring unfair labor practice charges for Kitchen's actions and for refusing to bargain, indicated the matters could be overlooked provided Respondent was ready to start serious negotiations; otherwise a strike recommendation would be made. Following these com- ments there was a discussion of facts and figures with O'Connor stating they made more money than most shops because of the incentive pay, with Meyers responding that was all the more reason the employees should be getting the same hourly rate as everyone else because their work was superior. When Meyers indicated the employees' pay would continue to add up if negotiations were prolonged because of the promise of retroactive pay, O'Connor told them there would be no retroactive pay. A heated discussion ensued following which Meyers stated he was going to talk to the employees and take a strike vote. O'Connor's response was he knew the employees would accept Respondent's offer instead of striking. Michael Morgan who attended the meeting stated the Union's proposed offer was the Queensboro rates retroac- tive to July 1 with Respondent's offer the same amounts as previously offered the employees with Respondent claim- ing it couldn't afford to pay more. After Meyers rejected the offer and requested negotiations, O'Connor informed them it was a rock bottom offer which if they didn't accept they would have to strike although he felt the employees would not strike. Michael Morgan also recalled O'Connor discussing other automobile dealers and Meyers informing O'Connor about filing charges and complaining of his refusal to make the wage increase retroactive. President O'Connor's version of the July 15 meeting was that President Meyers started off by asking him about certain benefits whereupon he reminded him it was strictly a wage reopener. Meyers then brought up the Union's proposal of $1.29 and 65 cents saying it was a standard contract. According to O'Connor Respondent's proposed offer was the same as that which the employees had 20 O'Connor first placed the date as July 7 21 President O'Connor admitted there had been no prior arrangement with the Union to ratify any agreement reached with the employees COURTESY VOLKSWAGEN, INC. 91 already agreed to accept. During the discussions O'Connor brought up other dealers and Meyers told him he didn't know what he was complaining about because he would get a factory warranty increase to offset the raise. O'Connor informed him that was not the case. Meyers, after caucusing with the employees, returned and asked O'Connor if he had changed his mind. O'Connor's reply was he thought it was a fair offer and explained the economic plight of the Company. Meyers concluded by saying they had no choice but to pull the men out and left. O'Connor denied any reference was made in this meeting about his refusing to bargain in good faith or of charges being filed. Service Manager Kitchen testified at the July 15 meeting that Meyers started out by discussing certain benefits before O'Connor corrected him, saying it was strictly a wage negotiation meeting, which Velez affirmed. Follow- ing this there was a lengthy discussion between Meyers and O'Connor about wages. The Union was asking for a $1.29-an-hour increase for the A mechanics and a 65-cent- an-hour increase for everyone else. O'Connor repeated Respondent's offer which was the same as the employees had already accepted. O'Connor's position was that was all the Company could afford to pay. O'Connor also discussed other dealerships. When Meyers brought up the warranty rate would make up for the increase, O'Connor explained how it would not. According to Kitchen, Meyers after talking to the employees repeated the Union's offer stating if necessary he would take the people out on strike. O'Connor responded by repeating the Company's offer claiming it was all they could afford to pay whereupon Meyers left. Both O'Connor and Kitchen testified during the July 15 meeting they heard Meyers make some remark to Shop Steward Morgan about he thought Morgan had this thing all handled. However, the evidence is not sufficient to establish what the alleged remark had reference to. While a review of the evidence pertaining to these meetings held between representatives of Respondent and the Union discloses certain discrepancies in their testimo- nies, such as the dates the meetings were held and whether filing charges was discussed, none of which I find necessary, to resolve, there was substantial agreement and I find the Union was seeking the Queensboro rates whereas Respondent's only offer was the same as that upon which it had already reached an agreement with the employees with the exception Respondent's wage offer would no longer be retroactive as originally promised. The exception is based upon the testimonies of Shop Steward Morgan and Michael Morgan which I credit and partially corroborated by Service Manager Kitchen's testimony that he believed President O'Connor had changed the offer to eliminate retroactive pay. O'Connor admitted at the hearing such offer was Respondent's final wage offer over which it would endure a strike. D. The Unfair Labor Practice Strike and Solicitation of Strikers Through Threats and Promises to Abandon the Union and Return to Work On July 15, when President Meyers reported the results of the negotiation meeting with President O'Connor and Service Manager Kitchen to the employees in the bargain- ing unit and after mentioning filing charges concerning Respondent's conduct, the employees voted unanimously to strike. The strike began immediately and a picket line was established the next day. These findings are based on the undenied testimony of Shop Steward Morgan, Assist- ant Shop Steward Holokyrs, and Michael Morgan. At the time the hearing was held in March, 1972, the strike against Respondent by the Union was continuing. According to President O'Connor, since the strike began, two negotiation meetings have been held with the Union through the State Mediation Service. These meetings, first requested by the Union in August, were held on December 21 and in January, 1972. However, neither party has changed its wage proposal. Several incidents occurred involving striking employees. Daniel Ruffini testified the day before the strike began he asked Service Manager Kitchen in the presence of another employee Tony Pasquale to get him a job if they went on strike because he didn't want to go on strike. Kitchen's reply was whatever happened he would be taken care of. The day after the strike began22 Ruffini requested Kitchen to come to his apartment. Tony Pasquale was also present. When Kitchen arrived Ruffini asked him if he had found him a job like he had promised. Kitchen replied he was still looking and he would get in touch with him later. Ruffini stated on several other occasions in July while he was on the picket line he had asked Kitchen if he had found him a job. About the first week in August, Kitchen approached him on the picket line and asked him if he would be home later that day. They met at Ruffini's home. According to Ruffini, Kitchen asked him if he wanted to come back to work because he needed him and no matter what the Union had told him there would always be a position at the Company for him. Ruffini stated he told Kitchen he couldn't go back because he wouldn't cross the picket line, but preferred that Kitchen would get him another job as he had promised. Kitchen replied he couldn't get him a job because he had broken his promise to him. When Ruffini inquired how he had broken his promise, Kitchen told him he had only said he would get him a job if he stopped picketing. Ruffini testified Kitchen told him the other employees wouldn't be coming back to work and neither would he unless he went back immediately. Ruffini stated, although he couldn't recall how it came up, that he mentioned Kitchen's going on vacation. When Kitchen indicated he was flying down to the Bahamas, Ruffini told him he would like to go. Kitchen's response was if he came back to work immediately something could be worked out. Service Manager Kitchen admitted meeting with Ruffin and Pasquale at Ruffini's home on the evening of July 15 at Ruffini's request. According to Kitchen when they asked 22 While the date is not critical I accept Ruffmi's explanation he had erroneously placed the date of this meeting as being July 15 in an affidavit. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if they could come back to work he did not give them an evening of, August 15, Service Manager Kitchen, who had answer because he didn't know the legal` ramifications. driven up in anautomobile and was parked sitting in the Ruffini then asked if it was possible for him to get him a driver's seat talking to another employee, Don Dellarocca, position elsewhere and he told him he would try. Kitchen testified at a later date he met Ruffini at Ruffini's home. Ruffmi's wife was also present. When Ruffini asked if he could come back to work he informed him he could. However, Ruffini's wife stated he could not go back to work because if he did he would have no friends to socialize with. Although Kitchen stated during the conversation he mentioned he hoped he and his wife could take a vacation trip and had a brochure on a place in the Bahamas, he denied promising Ruffini a vacation trip. Since Ruffini, who did not favorably impress me as a credible witness, admitted soliciting Kitchen on numerous occasions during the strike to find him a job and initiated the conversation about the vacation adding he would like to go and in the absence of his wife, to corroborate his testimony and Kitchen's denials, I do not find the evidence sufficient to establish such threats or promises were made to him as alleged. Andrew Holokyrs testified about a week after the strike began Service Manager Kitchen approached him on the picket line and asked him how he was doing. After replying Kitchen told him he had really, let him down. When Holokyrs asked what he meant Kitchen replied he had had plans for him and he was going to be a foreman and they could have gone a long way together. Holokyrs told Kitchen his loyalty was to the Union because he was a member of the bargaining unit. According to Holokyrs' undenied testimony prior to the strike, Kitchen had asked him about becoming a shop foreman when Foreman Hickey left. Shop Steward Morgan testified on one occasion he overheard Service Manager Kitchen talking to Holokyrs on the picket line during which Kitchen made a statement about how Holokyrs had surprised him and he had offered him a job as foreman and had big plans for him. Morgan stated he also heard Kitchen tell Holokyrs he should come back to work. Kitchen acknowledged having a conversation with Holokyrs on the picket line. His version was he felt Holokyrs had a long way to go with the Company because he was an excellent mechanic and they had previously talked about his being foreman. While Kitchen's expressed displeasure of Holokyrs' action is questionable, I do not find it sufficient as contended to constitute either a direct or implied threat he Would not receive the foreman's job and according to Holokyrs' own testimony he did not request him to return to work. Narine Ramlogan testified that on July 26, while picketing, Service Manager Kitchen told him he would see to it that he would no longer be employed by the Company. Kitchen denied having made such a statement. I credit Ramlogan's testimony over Kitchen's denial, and find he threatened to discharge him which threat was consistent with his previous discharge and Respondent's subsequent acts in discharging Ramlogan in addition to the other strikers, discussed infra. Harry Singh testified that while he was picketing on the called him over. When he approached Kitchen told him he liked him but had something for him then pulled a gun and said "I can put six of those in you." Singh, frightened, walked away and as he did he heard Dellarocca ask Kitchen if he had a license to carry a gun. Kitchen replied he did because he carried the payroll. Singh stated at the time he saw Shop Steward Morgan running, across the street but didn't know whether Morgan had observed the incident. Harry Ramdath, another picket, testified he was stand- ing on the side of the automobile opposite the driver's side and saw Kitchen take a gun out of the glove compartment of the automobile at which time Ramdath jumped back and walked away. He stated the window was up on that side of the automobile and he could not hear what was said. Ramdath stated when he turned around Shop Steward Morgan was behind him. Shop Steward Morgan testified he observed Kitchen sitting in an automobile parked in the driveway and upon seeing the expressions on the faces of the pickets ran across the street and from the passenger side of the automobile saw Kitchen putting a gun in the glove compartment. Morgan didn't hear Kitchen make any statements. Accord- ing to him Don Dellarocca and Harry Singh were on the driver's side and Harry Ramdath was on the opposite side. Service Manager Kitchen's version was he had driven his automobile into the driveway, rolled down his left window and was talking to Don Dellarocca at which time Harry Singh walked over. When he told Singh hello, Singh replied "You know, how can you sit there like that when you might get your throat cut" and made a sign indicating. Kitchen replied "You will have to get past this" and opened the glove compartment which had a camera in it but didn't take it out. According to Kitchen during this incident Respondent's Used Car Manager Breaton came to the right side of the automobile and knocked on the window which he rolled down automatically. Kitchen denied seeing either Ramdath or Morgan. On cross- examination Kitchen changed his testimony by stating Singh told him "You better watch out, you're going to get your throat cut" and made the sign. Used Car Manager Breaton testified he saw Kitchen drive up in an automobile and stop to talk to Don Dellarocca. Breaton knocked on the right side window which Kitchen opened for him and he stuck his head in to talk to Kitchen. However, Kitchen continued to talk to Dellarocca. When Harry Singh started walking back toward the automobile Kitchen asked him how he was doing. Singh replied "Hey, man, aren't you afraid of getting your throat cut." Kitchen reached over to his glove compartment opened it, reached in, and said "You'd have to get pass this." Breaton stated he saw a camera in the glove compartment at which time he just walked away. Breaton, who considered the incident humorous, denied he saw either Ramdath or Morgan or a gun. Both Singh and Ramdath denied Breaton was present on that occasion. I credit Singh's testimony and find Kitchen threatened him with a gun. Both Morgan and Ramdath who I credit COURTESY VOLKSWAGEN, INC. corroborated Singh's testimony Kitchen had a gun. Kitchen's denial, and his version it was Singh instead who made the threat, are discredited, as well as Breaton's testimony. In addition to those reasons previously given for discrediting him, Kitchen contradicted himself on cross- examination by alleging Singh made a direct rather than an implied threat as he had initially testified. Moreover, had Singh made such a threat which frightened him as Kitchen alleged, and had Breaton overheard it as he alleged, it is not plausible Kitchen would have reacted merely by reaching for his camera or that Breaton would have found the incident humorous. While Parts Manager Harry Wright admitted on several occasions asking striker Leo Tokarski how long he was going to be on strike, in the absence of any evidence to establish he solicited him to return to work or made any threats or promises to him, I do not find Wright's conduct violated the Act. Tokarskt, who was not alleged as a discriminatee, returned to work on his own request after remaining on strike about a month and a half. The evidence establishes, and I find, that the strike was caused by Respondent's bargaining directly with the employees over the wage increase; by soliciting them to accept Respondent's wage offers through threats of lockouts and discharge and giving a party for them; by temporarily discharging Ramlogan; and by offering Shop Steward Morgan money to withdraw from the Union and refusing to bargain in good faith with the Union over the wage increase all, of which conduct as discussed infra is found to be unlawful. The strike was prolonged by the threats made to the striking employees and by terminating and refusing to reinstate the strikers upon the uncondition- al offers to return to work, discussed infra. Therefore I find the strike was an unfair labor practice strike caused and prolonged by Respondent's unfair labor practices. E. Termination of the Strikers and Refusals to Reinstate Them On the dates set forth opposite their names Respondent sent letters to the following employees notifying each of them they had been permanently replaced. Brian Morgan-September 22 Michael Morgan--September 14 Harry Singh-September 7 Andrew Holokyrs-August 26 David Ruffin August 26 Harry Ramdath-August 23 Solomon Patterson-September 22 Two other employees, namely James Carley and Narine Ramlogan,23 were sent similar but undated letters. The parties stipulated the letters were received by the above- named individuals on or about the dates indicated in the letters with Carley's received on July 31 and Ramlogan's on August 3. The reason given by Respondent in its letters for permanently replacing them was in order for Respon- dent to continue its business and service its customers. The letters further stated all outstanding monies had been 23 Ramlogan's letter was not received in evidence. 24 Both dates appeared on the telegram without any explanation offered for the discrepancy. 25 D. Della Rocca was not alleged as a discriminatee. 93 mailed to the employees and effective as of the dates of the letters they were no longer covered by the fringe benefit programs at Respondent. All of the nine employees named above who are the discriminatees here unsuccessfully attempted to return to work in November. President O'Connor acknowledged on two occasions, November 5 and November 15, having conversations with the Union Business Representative Velez concerning their attempted reinstatement. On the first occasion Velez, accompanied by Brian Morgan, Daniel Ruffin, and Nanne Ramlogan, told O'Connor the employees wanted their jobs back. Velez on the second occasion, accompanied by Brian Morgan, Daniel Ruffin, Harry Ramdath, Solomon Patterson, and Narine Ramlo- gan, told him the men were there to report for work. While O'Connor claimed on both occasions Velez also mentioned resuming negotiations, he had initially specifically denied any such reference was made at the first meeting. Two of the discriminatees, Harry Singh and Harry Ramdath, testified they had attended such meetings where President O'Connor was asked for their jobs back and he refused. According to Singh those discriminatees present at the November 15 meeting in addition to himself were Brian Morgan, Daniel Ruffin, Michael Morgan, Harry Ram- dath, and Narine Ramlogan. Although Harry Ramdath was uncertain of the date of the meeting which he attended, those discriminatees present besides himself included Harry Singh, Daniel Ruffin, Narine Ramlogan, and Michael Morgan. Besides these meetings there was an exchange of telegrams and a letter concerning reinstate- ment of the discriminatees. On November 8 ' or 9 24 the Union sent the Respondent the following telegram: THIS IS TO CONFIRM THAT ON FRIDAY NOVEMBER 5TH 1971 THE FOLLOWING EMPLOYEES ADVISED YOU IN PERSON THAT THEY WISH TO RETURN TO WORK UNCONDITIONALLY: D. DELLA ROCCA, 25, D. RUFFINI, J. CARLEY, A. HOLOKYRS, B. MORGAN, M/MORGAN, S. PATTERSON, H. RAMDATH, N. RAMLOGAN, H. SINGH,. THAT OFFER IS REPEATED HERE, PLEASE ADVISE THE UNDERSIGNED IMMEDIATELY. Respondent's reply telegram on November 10 stated in pertinent part as follows: "Wish to advise you that on 11/10/71 no employees offered to return to work. Reconditional offer made on 11/5/71 Company still willing to meet and negotiate." On November 11 or 1226 the Union sent the following telegram to Respondent: THIS IS TO INFORM YOU THAT THE EMPLOYEES WILL RETURN TO WORK UNCONDITIONALLY ON MONDAY NOVEMBER 15, 1971. WE UNDERSTAND THAT YOU WILL RETURN THEM TO WORK AS PER YOUR TELEGRAM. On November 15 the Union sent another telegram to Respondent as follows: YOUR TELEGRAM OF NOVEMBER LOTH IS UNTRUE. I PERSONNALLY (SIC) ADVISED YOU NOVEMBER LOTH, 27 EARLY AM, EMPLOYEES SET TO REPORT TO WORK UNCONDITIONALLY THAT DAY AND YOU REQUESTED 26 Both unexplained dates appear on the telegram. 27 O'Connor denied having seen Business Representative Velez on November 10. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EMPLOYEES REPORT 11/15. ON 11/15 EMPLOYEES REPORTED AND YOU REFUSED THEM WORK. EMPLOYEES REMAIN READY TO WORK. WE WILL SEEK BACK PAY AND OTHER REDRESS FOR ALL TIME LOST SINCE 11/5 OFFER OF 11115 WAS ALSO UNCONDITIONAL RENEGOTIATION ON WAGES. STATE MEDIATION CURRENT BOARD HAS BEEN SEEKING YOUR COOPERATION. PLEASE ADVISE IT OF YOUR CURRENT WILLINGNESS. On November 22 Respondent sent the Union a letter which provided in pertinent part as follows: The purpose of this letter is to clarify the company's position with regard to the offer to return to work made by yourself on Monday, November 15, 1971 on behalf of employees, Brian Morgan, David Ruffini, Narine Ramlogan, Harrylal(sic) Ramdath and Solomon Pat- terson. The 5 employees who have offered to return to work have been permanently replaced as employees of the company. They have been notified by letter of such replacement. Differing from my statement that such employees would be returned to work on a seniority basis, such individual's rights to re-employment would be in accordance with the NLRB's decision in the Laidlaw case. President O'Connor admitted none of the discriminatees, with the exception of Solomon Patterson, discussed infra, have been reinstated. According to O'Connor the reasons he gave Business Representative Velez on November 5 for not reinstating the discrimmatees who applied was because they had been permanently replaced and there was no work available. The subsequent refusals were for similar reasons. President O'Connor and Service Manager Kitchen testified, Solomon Patterson was rehired in February 1972 to replace another employee who had been terminated; however Patterson quit work after only working about 10 days.28 Respondent, on the dates set forth opposite their names, sent letters to each of the following discriminatees29 offering them immediate and unconditional reinstatement to their jobs. Daniel Ruffini-February 9, 1972 Narine Ramlogan-February 17, 1972 Michael Morgan-February 11, 1972 Brian Morgan-February 15, 1972 Andrew Holokyrs-February 28, 1972 Harry Singh-February 24, 1972 Harry Ramdath-February 22, 1972 Although all of the discnminatees named received their letters offering them reinstatement on or about the dates indicated in the letters, none of them attempted to return to work after having received their offers. Two of them, namely Daniel Ruffini and Michael Morgan, responded by telegram the reasons they could not accept the offers were that they were discriminatory and conditional upon their abandoning the Union and there were other employees with greater seniority who must be recalled before them. Harry Ramdath, who had knowledge other discriminatees were asked to return at different times, stated he did not return because of the hearing scheduled and on advice from the Union. Based on the foregoing evidence and in particular the Union's November 8 or 9 telegram to Respondent wherein the Union repeated an offer on behalf of all the discriminatees, naming each of them, to return to work unconditionally, I find that unconditional application for reinstatement to their jobs was made to Respondent by the Union on behalf of the discriminatees Narine Ramlogan, Harry Ramdath, Daniel Ruffini, Andrew Holokyrs, Harry Singh, Michael Morgan, J. Carley, Solomon Patterson, and Brian Morgan.30 These offers were not conditioned, and I so find, upon resumption of negotiations. While certain other statements contained in the Union's telegrams to Respondent may not have been consistent with the evidence, I find that they were not sufficient to distract from the validity of the reinstatement offers. Cf. Hawaii Meat Company, Limited 139 NLRB 966, reversed on other grounds 321 F.2d 397 (C.A. 9). I further find Respondent's refusal to reinstate these discriminatees at the time the applications for reinstate- ment were made was because of its position they had been permanently replaced, which position was consistent with the unretracted letters previously sent to the discrimina- tees. Further, contrary to the positions taken by at least two of the discriminatees, Daniel Ruffini and Michael Morgan, I find the letters Respondent sent to the discriminatees Narine Ramlogan, Harry Ramdath, Daniel Ruffini, Andrew Holokyrs, Harry Singh, Michael Morgan, and Brian Morgan constituted valid unconditional offers of reinstatement. With respect to the two remaining discrimi- natees J. Carley and Solomon Patterson, I find no reinstatement offer was made to J. Carley and that Solomon Patterson was properly reinstated in February, 1972. The discriminatees Daniel Ruffini, Narine Ramlogan, Michael Morgan, Brian Morgan, Andrew Holokyrs, Harry Singh, and Harry Ramdath all testified at the hearing without contradiction they were still on strike and I so find. F. Analysis and Conclusions Counsel for the General Counsel contends, and Respon- dent denies, that Respondent violated Section 8(a)(1)(3) and (5) of the Act by bargaining directly with the employees and inducing them through threats and promis- es to accept Respondent's wage offer; by bargaining in bad faith with the Union; by discriminatorily discharging and refusing to reinstate employees; and by soliciting strikers through threats and promises to abandon the Union and return to work. It was further alleged the strike was an unfair labor practice strike. Having already made certain findings of fact and conclusions adverse to Respondent and when considering them in light of the applicable law 29 The exact dates he was rehired and quit were not established by the 29 There was no evidence presented to show J. Carley was offered evidence There was no contention made and the evidence is insufficient to reinstatement. establish that the reinstatement of Patterson, who testified at the hearing, 30 No issue was raised with respect to the reporting times indicated in the was improper. letters. COURTESY VOLKSWAGEN, INC. and provisions of the Act discussed below I find Respon- dent violated Section 8(a)(1), (3), and (5) of the Act.. Section 8(a)(1) of the Act prohibits an employer from interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 while Section 8(a)(5) of the Act prohibits an employer from refusing "to bargain collectively with the representatives of his employees" designated by a majority of them in an appropriate unit. The obligation to treat only with the bargaining representative is exclusive and hence imposes the negative duty to treat with no other. N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1. An employer by disregarding the bargaining representative and negotiating directly with individual employees with respect to wages, hours, and working conditions violates Section 8(a)(1) of the Act. Medo Photo Corp. v. N.L.R.B., 321 U.S. 678. Here the evidence establishes, Respondent admits, and I find that the Union represented the unit employees. Having already found that Respondent through its admitted supervisor, Service Manager Kitchen, negotiated Respon- dent's wage offers directly with the unit employees while disregarding the Union, and solicited them to accept such offers through threats of lockouts and discharge, and by giving a party for the employees and in addition offering Shop Steward Morgan money to withdraw from the Union, and threatening strikers Harry Singh with a gun and Narine Ramlogan with discharge, I find such conduct interfered with, restrained, and coerced the employees in the exercise of their Section 7 rights and Respondent by engaging in such conduct thereby violated Section 8(a)(1) of the Act. Turning to the bargaining meetings which subsequently transpired between the parties, the Act imposes "a mutual duty upon the parties to confer in good faith with a desire to reach agreement . ..." N.L.R.B. v. Insurance Agents' International Union, 361 U.S. 477, 488. Respondent's only wage proposal offered the Union was that upon which an unlawful agreement had been extorted from employees in the unit through unlawful negotiations conducted directly with them and accompanied by threats of lockouts and discharge if they refused to accept such offer, with the exception the offer to the Union was even less than offered the employees because of the refusal to make such raise retroactive. This fact, considered with Respondent's contention throughout negotiations the Union should ratify such agreement and that it was Respondent' s final offer over which it was prepared to endure a strike, I find is sufficient to establish that its conduct in negotiations with the Union was but a continuation of its prior unlawful conduct and that it had no intentions of bargaining in good faith with the Union towards reaching an agreement with the Union over the wage increase; and thereby violated Section 8(a)(5) and (1) of the Act. Section 8(a)(3) of the Act provides in pertinent part "It shall be an unfair labor practice for an employer . . . 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 ... . Since Narine Ramlogan, as I have found, was temporarily discharged for resisting Respondent's unlawful conduct in 95 negotiating wages directly with the employees, I find his discharge violated Section 8(a)(3) and (1) of the Act. The discharge of unfair labor practice strikers also violates Section 8(a)(3) and (1) of the Act. ITT Henze Value Service, 166 NLRB 592, enfd. 435 F.2d 1308 (C.A. 5). Since I have previously found the strike constituted an unfair labor practice strike from its inception and the strikers were therefore all unfair labor practice strikers, I find that Respondent by terminating them violated Section 8(a)(3) and (1) of the Act. As unfair labor practice strikers they are entitled to reinstatement upon application even if replacements have been hired. Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270. An employer's refusal to reinstate such strikers violates Section 8(a)(3) and (1) of the Act. Southwestern Pipe, Inc. 179 NLRB 364, modified 444 F.2d 340 (C.A. 5). Having found the Union made valid unconditional applications for reinstatement on behalf of all the discriminatees whereupon Respondent refused to reinstate them, I find Respondent's refusal violated Section 8(a)(3) and (1) of the Act. However when Respondent thereafter sent letters to seven of the discriminatees offering them reinstatement , which I have found constitut- ed valid offers of reinstatement, the backpay liability for those seven discriminatees was tolled. Southwestern Pipe, Inc., supra. Inasmuch as I have found these seven employees have remained on strike since the offers were made, they still maintain their status as unfair labor practice strikers and are entitled to reinstatement upon application. See National Business Forma, 189 NLRB 964. Therefore I find for the reasons stated that it has been established by a preponderance of the evidence Respon- dent violated Section 8(a)(1)(3) and (5) of the Act in those specific instances which I have found. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, found to constitute unfair labor practices occurring in connection with the operations of Respondent described 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 thereof. CONCLUSIONS OF LAW 1. Courtesy Volkswagen, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of Ameri- ca, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. All Service Shop employees of the Respondent located at the Respondent's 8025 Jericho Turnpike location, excluding office clerical employees, new and used car salesmen, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein the Union has been, and is now, the exclusive representative of all employees in the 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on and after July 6, 1971, to bargain collectively in good faith with Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, as the exclusive bargaining representative of the employees in the aforesaid appropriate bargaining unit over the wage reopener, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 6. By disregarding the Union and bargaining directly with its employees; by threatening its employees with discharge and lockouts and giving them a party to induce their acceptance of Respondent's wage offer; by offering an employee money to withdraw from the Union; and by threatening strikers with a gun and discharge, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. 7. By temporarily discharging Narine Ramlogan on or about June 28, 1971, and by discharging unfair labor practice strikers Narine Ramlogan on August 3, 1971, Harry Ramdath on August 23, 1971, Daniel Ruffini on August 26, 1971, Andrew Holokyrs on August 26, 1971, Harry Singh on September 7, 1971, Michael Morgan on September 14, 1971, J. Carley on July 31, 1971, Solomon Patterson on September 22, 1971, and Brian Morgan on September 22, 1971, and by thereafter refusing to reinstate said strikers on or about November 8 or 9, 1971, when proper applications for reinstatement were made, the Respondent has discriminated in regard to the hire, tenure, and conditions of employment of its employees, thereby discouraging membership in the Union, in violation of Section 8(a)(3) and (1) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. The strike which began on July 15, 1971, having been caused and prolonged by Respondent's unfair labor practices, is an unfair labor practice strike. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1),(3),and(5) of the Act I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Accordingly, it is recommended Respondent be ordered to bargain collectively in good faith with the Union, as the exclusive representative of the employees in the aforemen- tioned unit, upon request, over the wage reopener. Since I have found the strike was an unfair labor practice strike and Respondent discriminatorily refused to reinstate strikers Narine Ramlogan, Harry Ramdath, Daniel Ruffi- ni, Andrew Holokyrs, Harry Singh, Michael Morgan, J. Carley, Solomon Patterson, and Brian Morgan on Novem- ber 8 or 9, 1971, when they unconditionally offered to return to work, it is recommended Respondent be required to make them whole for any loss of pay they may have 31 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in suffered as a result of Respondent's refusal to reinstate them from November 8 or 9, 1971, until such dates as they are or have been offered reinstatement. As found herein Respondent offered reinstatement to David Ruffim on February 9, 1972, Narine Ramlogan on February 17, 1972; Michael Morgan on February 11, 1972; Brian Morgan on February 15, 1972; Andrew Holokyrs on February 28, 1972; Harry Singh on February 24, 1972; Harry Ramdath on February 22, 1972; and Solomon Patterson sometime in February 1972. Since J. Carley has not been offered reinstatement I shall recommend that Respondent offer him immediate and full reinstatement to his former position, or if that position no longer exists, to a substantially equivalent position without prejudice to his seniority and other rights and privileges, dismissing, if necessary, any replacements hired, and that the Respon- dent make him whole for any loss of pay he may have suffered as a result of Respondent's refusal to reinstate him from November 8 or 9, 1971, until such time as he is offered reinstatement. Regarding employees Daniel Ruffi- ni, Narine Ramlogan, Michael Morgan, Brian Morgan, Andrew Holokyrs, Harry Singh, and Harry Ramdath, who declined Respondent's reinstatement offers but who have remained on strike and occupy the status of unfair labor practice strikers, Respondent shall be ordered to offer them, upon application, immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without preju- dice to their seniority and other rights and privileges dismissing, if necessary, any replacements; and Respon- dent will make them whole for any loss of pay they may suffer by reason of Respondent's refusal, if any, to reinstate them upon their applications. Backpay shall be computed in accordance with the formula prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, together with 6 percent interest per annum, to be computed in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. 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: 31 ORDER Respondent, Courtesy Volkswagen, Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith over the wage reopener with Local 259, International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW, as the exclusive representative of all the employees in a unit composed of "all service shop employees of the Respondent located at the Respondent's 8025 Jericho Turnpike location, exclud- ing office clerical employees, new and used car salesmen, guards and supervisors as defined in the Act." (b) Discouraging membership in Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, or any other labor Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. COURTESY VOLKSWAGEN, INC. organization by terminating or refusing to reinstate employees because of their union or strike activities or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (c) Dealing individually with any of its employees in the aforementioned bargaining unit in derogation of their bargaining representative. (d) Threatening its employees with discharge and lockouts and giving them parties to induce them to accept Respondent's wage offers negotiated directly with the employees. (e) Offering its employees money to withdraw from the Union. (f) Threatening its striking employees with bodily harm or discharge to induce them to abandon the Union and return to work. (g) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own 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. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of Ameri- ca, UAW, as the exclusive representative of the employees in the aforementioned bargaining unit over the wage reopener. (b) Offer J. Carley immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, discharging, if necessary, any replacements, and make him whole for any loss of earnings he may have suffered by the Respondent's November 8 or 9, 1971, refusal of his unconditional application therefor, from November 8 or 9, 1971, to the date of a valid offer of reinstatement in the manner set forth in the section of this Decision entitled "Me Remedy." (c) Make Narine Ramlogan, Harry Ramdath, Daniel Ruffmi, Andrew Holokyrs, Harry Singh, Michael Morgan, Brian Morgan, and Solomon Patterson whole for any loss of earnings they may have suffered by the Respondent's 32 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." 97 November 8 or 9, 1971, refusal of their unconditional applications for their positions from November 8 or 9, 1971, to the dates previously found each was made a valid offer of reinstatement in the manner set forth in the section of this Decision entitled "The Remedy." Upon application, offer each of them who I have found remained on strike, which includes all of those except Solomon Patterson who was reinstated and who occupy the positions of unfair labor practice strikers, immediate and full reinstatement to their former positions or if those positions no longer exist to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, discharging if necessary, any replacements hired and make each of them whole for any loss of earnings they may suffer as a result of any subsequent refusal of their unconditional applications for reinstatement, if made, in the manner set forth in the section of this Decision entitled "The Remedy." (d) Notify any of the employees named in the preceding paragraphs, excepting Solomon Patterson, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act, and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Preserve, and, upon request make, available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of backpay due under the terms of this Order. (f) Post at its Woodbury, New York, facilities copies of the attached notice marked "Appendix." 32 Copies of said notice, on forms furnished by the Regional Director for Region 29, shall, after being duly signed by the Respon- dent's authorized representative, be posted immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith.33 IT IS FURTHER ORDERED that the consolidated complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein. 33 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 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."