Bob Bundy, Inc.

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bob Bundy, Inc. and International Association of Ma- chinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO. Case 27-CA-3330 August 8, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On May 23, 1972, Administrative Law Judge 1 George H. O'Brien issued the attached Decision in this proceeding. Thereafter, General Counsel filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge except as modified below. In his exceptions, the General Counsel contends, inter aka, that Respondent violated Section 8(a)(1) of the Act by unlawfully interrogating employees, soli- citing grievances, and granting a 25-cent-per-hour wage increase. He argues that the Administrative Law Judge erred in dismissing the complaint with respect to these issues. For the reasons expressed below, we find merit in these contentions of the General Coun- sel.' We agree with the following findings of fact which the Administrative Law Judge made, and which we find are relevant to the question of whether the Re- spondent violated Section 8(a)(1) of the Act. In May 1971 the Union held a citywide organizing meeting in Denver which was attended by Hollings- worth, one of Respondent's mechanics, and one other employee of the Respondent. On July 16, 1971, at the request of Hollingsworth, two union officials met with employees of the Respondent at a restaurant adjoin- ing the Respondent's premises. At that time 5 of the Respondent's 12 service employees, viz, Maestas, Hollingsworth, Miller, Stevens, and Luley, signed The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 In all other respects, however, we find his contentions to be without merit because they are not supported by a preponderance of the credible evidence In this regard, we note that the General Counsel 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 resolution with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, 91 NLRB 544, enfd 188 F 2d 363 (C A 3, 1951). We have carefully examined the record and find no basis for reversing his findings union authorization cards. About 1:30 p.m. on the same date, the Respondent's general manager, Bron- son, was at the same restaurant and was told by its manager that the Respondent's employees were meet- ing there, that most of the employees in the shop had met with two individuals who seemed to be union representatives, and that the two individuals paid for 10 or 11 meals. About 1:30 or 2 p.m. the same af- ternoon, the Respondent's service manager, Daffin, asked employee Stevens why he hadn't told the Re- spondent about the employees' meeting with the Union. In the evening of the same day, at 5 p.m., Bronson decided to have a meeting of shop personnel to let them know "that they were about to get chewed out again and . . . to do something about the situa- tion at hand." He opened the meeting by reminding the employ- ees of their manifold shortcomings, including lack of punctuality, horseplay, and beer drinking on the premises after hours. He told them that they "wouldn't put nothing over on him because he knew what was going on," that he "was aware of the fact that they had met with a couple of union heads during the lunch hour that day." Then he wanted to know what their "gripes" were. The employees asked wheth- er they could get a 75-cent-per-hour wage increase, health insurance, sick pay benefits, and more vacation time. Shop equipment was also mentioned. Bronson said that he would review with Bundy the conditions which concerned the employees and that he would schedule another meeting in a week. On July 23, 1971, a meeting was held with the Respondent's line mechanics. Bronson told the em- ployees that "the one thing I could tell them . . . was the fact that we had made a review of the franchises up and down the street and felt we should go another 25 cents an hour on the flat rate, and we would rein- state that the first of August." The Respondent's own- er, Bundy, was not informed before the raise was promised to the mechanics and heard about the meet- ing 3 or 4 days later. Based on the above facts, the Administrative Law Judge found that the question asked of Stevens by the Respondent's service manager, Daffin (why Stevens hadn't told the Respondent about the employees' meeting with the Union), was isolated and noncoer- cive. We disagree. In our view Daffin, in effect, was asking Stevens why he had not served as an informer for the Respondent. Moreover, it is not unreasonable to infer that the question created the impression of surveillance. The Respondent showed no necessity or justification for the question, nor did it claim that normal safeguards or reassurances were observed re- garding a question which invites disclosure as to an employee's attitude concerning union adherence or 205 NLRB No. 55 BOB BUNDY, INC. affiliation. Consequently, whether considered in con- junction with the solicitation of grievances and grant of commission increases, discussed infra, or even standing alone, we think that Daffin's question tend- ed to interfere with, restrain, or coerce the Respondent's employees in the free exercise of rights guaranteed them by Section 7 of the Act,3 and that an appropriate remedy should be granted. Implicit in the result which we reach is our holding that it is not necessary, for proof of a violation of Section 8(a)(1) of the Act, to show by direct evidence that any partic- ular persons were in fact successfully restrained or coerced; it is enough if it is shown that the employer's conduct has a natural tendency to do so.4 Concerning the Respondent's grant of an increase in commissions to its line mechanics, we disagree with the Administrative Law Judge who found such con- duct to have been motivated entirely by business con- siderations. We find that by this act the Respondent was, in effect, showing its employees that resort to self-organization was plainly unnecessary. This find- ing is supported by the fact that neither solicitation of grievances nor an increase in commissions pursuant to that solicitation was undertaken by the Respondent prior to the advent of the Union.' It can reasonably be inferred that the unlawful interrogation of Stevens, followed by the meeting at which the Respondent solicited grievances (both of which events occurred on the very day of the employees' initial meeting with union representatives), tended to leave with the em- ployees the impression that the Respondent was will- ing to satisfy their grievances as an inducement for their rejection of the Union's organizational effort .6 Furthermore, it is reasonable to infer that this impres- sion was reinforced by the increase in commissions which the Respondent announced within a week after its "grievance" meeting. As the Supreme Court noted in N.L.R.B. v. Exchange Parts Co.,' Section 8(a)(1) of the Act "prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express pur- pose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect." Although the Administrative Law Judge disregards the Respondent's solicitation of grievances on the 3 See NL RB v Bear Brand Roofing, Inc, 312 F 2d 616, 619 (C A 10, 1962), enfg. 134 NLRB 1233 ° See N L R B v Brown-Dunkin Company, Inc, 287 F 2d 17, 18 (C.A 10, 1961), enfg 125 NLRB 1379 5 See N L R B v Crown Can Company, 138 F 2d 263, 267 (C.A 8, 1943), enfg 42 NLRB 1160, cert denied 321 U S 769 (1943) 6 See Ring Metals Company, 198 NLRB No 143, and Vaughan Printer, Inc, 196 NLRB No 32 (ALJD Employee Buford Vaughan) 3 375 U S 405, 409 (1963), see also The Great Atlantic & Pacific Tea Co, Inc, 194 NLRB 774, affd 80 LRRM 2902 (C A 4, 1972) 337 ground that such matter was not specifically alleged in the complaint herein as a violation of the Act, we find that the matter was fully litigated in connection with the grant of the increase in commissions which the Respondent gave to its mechanics after soliciting their grievances, and that, therefore, no specific alle- gation is required as a prerequisite to our finding that such conduct constituted a violation of Section 8(a)(1) of the Act.' Moreover, because the Respondent' s soli- citation of grievances is germane to the Respondent's alleged unlawful act of granting increases in commis- sions, our order can provide, as it does, a remedy which relates to the former unlawful act as a part of the remedy to expunge the effects of the latter unlaw- ful act.' Accordingly, after fully considering the evidence credited by the Administrative Law Judge herein with regard to these incidents, and reasonable inferences which can be drawn therefrom, we, unlike the Admin- istrative Law Judge, find no adequate explanation or justification for the Respondent's interrogation, soli- citation of grievances, and increase in the commis- sions of its line mechanics. Accordingly, we conclude that by interrogating Stevens, soliciting grievances, and granting an increase in commissions, the Respon- dent violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. At all material times Bob Bundy, Inc., Respon- dent herein, has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all material times, International Association of Machinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO, Charging Party herein, has been and is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employee Stevens about his union activities, by soliciting grievances, and by implying and granting wage increases, the Re- spondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect com- merce within the purview of Section 2(6) and (7) of the Act. THE REMEDY With regard to remedying the unfair labor practices comprising the violations of Section 8(a)(1) which have been found, we shall order the usual cease-and- desist order and affirmative relief customarily ordered 8 N L R B v Thompson Transport Co, Inc, 421 F 2d 154, 155 (C.A. 10, 1970), enfg 172 NLRB 603 9 NLRB v Broderick Wood Products Company, 261 F 2d 548, 558-559 (C A. 10, 1958), enfg 118 NLRB 38 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in cases of this nature. ORDER violations of Section 8(a)(1) other than those found above, the complaint herein shall be, and it hereby is, dismissed. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Bob Bundy, Inc., Littleton, Colorado, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their sympathies for, interest or membership in, or activi- ties on behalf of International Association of Machin- ists and Aerospace Workers and its District Lodge No. 86, AFL-CIO, hereinafter called the Union, or any other labor organization. (b) Impliedly promising or granting wage increases or other benefits or soliciting the presentation of grievances and indicating that such will be adjusted in order to discourage its employees from designating the Union, or any other labor organization, as their collective-bargaining representative. (c) In any other manner interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization, to form labor organi- zations, tojoin or assist the Union, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, or to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its place of business in Littleton, Colora- do, copies of the attached notice marked "Appen- dix." 10 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by the Respondent's authorized representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to its employees are custom- arily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT promise or grant wage increases or other benefits or solicit grievances or indicate they will be adjusted in order to discourage our employees from designating International Asso- ciation of Machinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO, herein- after called the Union, or any other labor organi- zation, as their collective-bargaining representative. WE WILL NOT interrogate our employees con- cerning their union sympathies, interests, mem- bership, or activities. 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, join, or assist the Union, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection. All our employees are free to become or remain, or refrain from becoming or remaining, members of In- ternational Association of Machinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO, or any other labor organization. BOB BUNDY, INC (Employer) Dated By (Representative) (Title) with. This is an official notice and must not be defaced IT IS FURTHER ORDERED that, insofar as the complaint by anyone. alleges violations of Section 8(a)(3) of the Act and This notice must remain posted for 60 consecutive BOB BUNDY, INC. 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, Room 260, U.S. Custom House, 721 19th Street, Denver, Colorado 80202, Telephone 303- 837-3555. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Trial Examiner: On March 7 through 10, 1972, a hearing was held in the above-entitled matter in Denver, Colorado. The complaint, issued September 14, 1971, as amended November 19, 1971, is based on a charge filed August 18, 1971, by International Association of Ma- chinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO, herein called the Union, and alleges viola- tions of Section 8(a)(1) and (3) of the National Labor Rela- tions Act by Bob Bundy, Inc., herein called Respondent. Upon the entire record in this proceeding, including my observation of the witnesses, and after due consideration of the General Counsel's post hearing brief, I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is a Colorado corporation engaged in Little- ton, Colorado, in the business of selling and repairing new and used automobiles. It is franchised by American Motors Corporation, and all of its stock is held by Mr. and Mrs. Bob Bundy. Its annual gross sales exceed $500,000 and it annual- ly receives at its Littleton, Colorado, store automobiles va- lued in excess of $50,000, which are shipped directly to it from points located outside the State of Colorado. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint as amended alleges that Respondent dis- charged five employees to discourage membership in the Union and interfered with employee rights by unlawful in- terrogation, by granting a 25-cent-per-hour wage increase, and by imposing the onerous working condition of requiring employees to "punch in and out." The complaint further alleges that since "on or before August 16, 1971" the Union has been the statutory collective-bargaining representative 339 of Respondent's service department employees. Respondent's answer is a general denial. Its counsel did not file a brief. Its general manager, Donald Bronson, testi- fied that he alone made the decision to discharge the five employees. His reasons were: Clarence Maestas left work at noon on Saturday, July 3, 1971, without permission, did not report on his next scheduled working day, July 5, and was warned on July 6 that if he was again absent without permis- sion on a Saturday he would be discharged. Maestas was absent without permission or excuse on Saturday, August 7, and was discharged on Monday, August 9, for that reason. Hollingsworth, Stevens, Miller and Graham were dis- charged August 16, 1971, for lack of punctuality, poor work- manship, horseplay, and vulgarity. Bronson was unaware, as of the dates of discharge, that any of these individuals had engaged in any union activity. The wage increase effec- tive August 1, 1971, was pursuant to a survey of wages paid by comparable automobile dealers in the area. The require- ment that employees punch a timeclock was not newly im- posed. B. The Setting Respondent's operation comprises a new-car showroom, a business office, a parts room, and a repair shop under one roof. Bundy has a private office on the second floor. There is a detached body shop and an adjacent used-car lot. Ad- joining the used-car lot is a public restaurant , Mr. Steak. Bundy has two other franchises in the Denver area and has delegated to the general manager of each complete con- trol of his respective operation. On July 16, 1971, Respondent's general manager was Donald Raymond Bronson . Other supervisors were: Donald Johnson Charles O'Meara James Dews Lou Schmid Rohn Mitchell Raymond Daffin sales manager sales manager office manager body shop manager parts manager service manager Prior to July 1971, Jerry James was a salesman. From Au- gust 1 through August 13, 1971, he was a service writer under Daffin. His duties in July and his supervisory status from July 1, 1971, through August 13, 1971, are in dispute. Respondent's employees are paid semimonthly, with each pay period beginning on and including the first day and the 16th day of each month. The managers, above-named, are paid salary or salary and commission. Salesmen are paid commission only and keep their own time. All other em- ployees punch a timeclock. The nonsupervisory service employees on July 16, 1971, (excluding, pro tempore, James) were: James Caudill Howard Luttrell Martin Rothaermel Arnold Hollingsworth Robert Stevens Daniel Miller Jene Graham body shop mechanic body shop mechanic body shop mechanic line mechanic line mechanic line mechanic line mechanic 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Charles Luley line mechanic Raymond Dubberly line mechanic Charles Meador parts man Clarence Maestas lot man Jeffrey Hansen lot man C. Sequence of Events On May 18, 1971, Hollingsworth overhauled the differen- tial on a 1966 Ambassador. On July 2, the owner, L. M. Lynch, took his car to Fuoco Motor Company in Grand Junction, Colorado, with differential trouble . The mechanic reported to Fuoco: "Side bearing cap bolts not original & threads pulled. We installed longer bolts." On July 3, Fuoco telephoned Bundy. Service manager Daffin was instructed to prepare a purchase order for the work done by Fuoco, whose bill was received July 6, 1971. Respondent on August 5, 1971, paid Fuoco Motors $83.74 for repairing the work done by Hollingsworth. On or about July 14, Hollingsworth telephoned the Union's grand lodge representative, Claude Jones, who agreed to meet with a group of Respondent's employees on Friday noon, July 16, at the Mr. Steak restaurant. On Friday, July 16, Jones and another union representa- tive bought lunch for five of Respondent's employees. These were : Hollingsworth, Stevens, Miller, Maestas, and Luley. At 5 p.m. on July 16, General Manager Bronson called a meeting of all service department employees and their supervisors. Bundy was not present . Bronson announced that he was aware of the meeting with the union representa- tives at noon that day, that they should give the matter a little thought, and that whichever way the employees went was up to them . Bronson then asked what the "gripes" were, and listened to the employee complaints. At the close of the meeting, Bronson announced that he would check with other automobile dealers, would confer with Bundy, and would have another meeting in I week. He also reminded his audience that shop hours were 8 a.m. to 5 p.m., Monday through Friday, with 1 hour for lunch and that they should punch the timeclock on arrival in the morning, when leaving for lunch , upon returning from lunch, and when they left the shop at the end of the day. At 5 p.m. on Friday July 23, Bronson met with the line mechanics and Daffin in Daffin's office. Bronson, after announcing that effective August 1 all line mechanics would be paid $4.50 per flat rate hour, and that there would be no other changes in wages or working conditions , again re- minded the mechanics that "he would like to have them there at 8 :00 o'clock punching in so they would be there when the customers are there." Mechanics are not paid for the time they spend in the shop, nor for the actual working time on any job. They are paid a commission computed as a proportion of a "flat rate hour." American Motors publishes a list of shop operations with the time which each operation should take . If the "flat rate" in the book is 1 hour, the customer is charged for I hour, and the mechanic is paid his proportion, whether the actual time spent on the job is 10 minutes or 10 hours. Respondent charged its customers $ 10 per "flat rate hour." Prior to the July 23 announcement, Luley's share of the "flat rate" was $4, the share of all other mechanics was $4.25. On Friday, August 6, the six line mechanics above-named and Maestas had their second luncheon meeting with the two union representatives at Mr. Steak. Although it was not their custom to take lunch at the same time , on this date the six mechanics all clocked back in between 13.12 and 13.15 hours.I Line mechanic Romans, who had been hired August 4, 1971, clocked out at 12.95 and in at 13.52 and did not attend the meeting. Saturday, August 7, Maestas did not come to work and did not call in. Although the shop is not open on Saturday, the store is, and salesmen are on duty. Maestas' hours were 8 a.m. to 5 p.m., Monday through Saturday. As Maestas was punching out for lunch on Monday, August 9, he was invited to the office by Bronson. In answer to Bronson's inquiries, Maestas said that he had not come to work Saturday because he was sick, had not called in because he had no telephone in his apartment and was not well enough to get out of bed and walk to a telephone. Bronson then said, "might as well call it quits because I already had somebody else in mind for you" and that Maes- tas was fired. On Monday morning, August 16, 1971, Bronson stood by the timeclock armed with the final paychecks of Hollings- worth, Stevens, Graham, and Miller. As each one appeared he was discharged by Bronson with the explanation "lack of punctuality." At about 10 a.m. on August 16, the Union set up a picket line. Line mechanics, Luley, Dubberly, and Romans worked behind the picket line for the remainder of the day. None reported on Tuesday, August 17, or thereafter. Picket- ing continued for about 3 weeks. Respondent placed its first ad for mechanics on Wednesday, August 25. Romans re- turned to work for Respondent on September 21, 1971. D. The Testimony 1. The testimony of Claude Jones The Union held a citywide organizing meeting in Denver in May 1971 which was attended by Hollingsworth and one other employee of Respondent. Hollingsworth telephoned Jones in mid-July, about 2 days before the 16th and the luncheon meeting was arranged. A second union official, Allen Walker, and Jones met five of Respondent's employ- ees at Mr . Steak at noon on Friday, July 16, and bought their lunches. Hollingsworth filled out, signed, and deliv- ered an application for membership card and paid his $10 initiation fee. Daniel Miller delivered a fully executed card to Jones and paid his fee. Clarence Maestas and Robert Stevens filled out and signed application cards, but neither paid his initiation fee at that time. Jones, on the witness stand, examined application cards bearing the purported signatures of Jene Graham and Charles Luley, and the dates "July 16-1971" and "7-16-71," but could not recall either being at the meeting. The timeclock reads in hours , numbered I through 24, and hundredths of hours, 01 through .99. It does not register minutes. BOB BUNDY, INC. A card bearing Dubberly's signature was received in the mail with a check for $ 10 "in the latter part of July." 2. The testimony of Donald Raymond Bronson Bronson started to work for Respondent in mid -August 1969. Prior to his appointment as general manager, May 1, 1971, he was sales manager . While sales manager, he had observed snowball fights in the shop when a car came in with snow on the roof . He had seen tires rolled down the center aisle. He had seen Graham squirting water on other employees with the hose on the wash rack. He had seen window-washer solvent guns filled with water and used as weapons by the mechanics. He had seen Graham slip on oil while being chased by Stevens, with the possibility that a car might have been knocked off the rack where it was resting 7 feet above the floor. He had seen the restroom decorated with towels and clothing. He had seen rubber grommets thrown about the shop. About May 15 , 1971, Bronson had a meeting of all the service department personnel , comprising body shop, parts department, mechanics, and lotmen , in Bundy's office. Bronson announced that he was going to run the operation like a business and not like a playhouse, there would be no more horseplay and no more vulgarity. He also mentioned punctuality. Water fights and grommet tossing continued after this meeting, and punctuality did not improve. In July 1971, Parts Manager Mitchell complained to Bronson that Miller had thrown a 10-pound steel drum across the stall, across the aisle, and into the parts department . In July 1971, Sales Manager Johnson complained to Bronson that when he was back in the shop checking on the status of equipment being installed on a new car he was ordered out of the shop by Stevens with obscene emphasis . Throughout the entire pen- od from May through August, Office Manager Dews com- plained that the mechanics used vulgar language in the hearing of the cashier , whose window opened to the shop. On Friday, July 16: I went over about 1 : 30 to the restaurant to have a sandwich and the manager of the restaurant said, "I see your boys are doing some meeting here. . . . Looked like most of your shop was here and met with two individuals who seemed at that time union heads, from the discussion I could gather . . . quite a few of your shop personnel were here...... I think he said now these two personnel picked up the tab for 10 meals or 11 meals, somewhere in that area. On Friday, July 16, Bronson decided to have a meeting of shop personnel. His purpose in calling the meeting was: for letting people know that they were about to get chewed out again and we had to do something about the situation at hand . They had been warned in the past and it was with respect to the type of an operation we were running in the back end. Bronson told Daffin to notify all the shop personnel that there would be a meeting in Bundy's office at 5 p.m. on July 341 16. Schmid did not attend. Maestas did attend. Daffin opened the meeting, introduced Bronson, and returned to the shop. Bronson testified: Well, I started out with stating that , "Gentlemen, you are not pulling the wool over my eyes. I wasn't born yesterday. I know what's happening back in the shop. It's been going on for a while and you have been warned and I want to bring this all up again." . . . I told them that we still had a problem with punctuality, we had a problem on horse play, we had a problem on beer drinking after hours, but on the premises, and I also told them that I was aware of the fact that they had met with a couple of union heads during the lunch hour that day... . ... it was just more or less an open forum and the question came about to, "Why don't you do something for us?" ... One comment was, "Well can 't we get paid health insurance?" Another topic was, "Can we get sick pay benefits?" Another was, "Can we get more vacation time?" Another one was the fact that they were getting paid $4.25 an hour and they wanted to take it to 50 percent, which would be $5.00 an hour Shop equipment was mentioned . Bronson did not recall whether or not Maestas asked for a raise at this meeting. He did recall that he had earlier refused such a request on the ground that Maestas was being paid all he was worth. At the conclusion of the meeting: I stated that one week later at 5:00 p.m. I would have another meeting, and I would review in the meantime between Mr. Bundy and I, the conditions that they were worried about. On Friday, July 23, Bronson told Daffin to gather the service department employees , omitting the body shop, in Daffin's office at 5 o'clock. When Bronson arrived for the meeting, he saw beer being passed around by the mechan- ics, and announced that there would be no meeting until the beer was removed from the premises. Two of the mechanics removed two or three six-packs of beer, and the meeting opened. Bronson testified: I stated at that time, we were not planning on doing anything more on the benefits of health insurance as far as Mr. Bundy paying for it; as far as the sick pay, nothing was going to be changed , and the one thing I could tell them . . . was the fact that we had made a review of the franchises up and down the street and felt we should go another 25 cents an hour on the flat rate, and we would reinstate that the first of August . . . there was a lot of things discussed, with respect to the fact that I hadn't done anything else but that. During the last week in July, Clara Biesel, a customer, 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complained in person to Bronson that she had been charged for work which had not been performed. Bronson inspected the automobile, found the statement to be true and removed the charge from her bill with an apology. Respondent's records showed that the work had been done by Graham and the charge approved by Daffin. On August 1, 1971, Mr. and Mrs. Major complained in person to Bronson that the work done by Respondent's mechanic on their car had not remedied the problem, low oil pressure. Bronson test drove the car and found their statement to be true. He instructed Daffin to tear the engine down. Respondent's records showed that Graham had re- placed 16 valve lifters and 16 push rods on July 20, 1971, and that Charles Major had been charged $80.85 for parts and $28.00 for labor. When Bronson looked at the engine it was obvious that the work had not been done. "The lifters were old and original, and the pushrods were cruddy." On Saturday, August 7, Maestas did not show up for work. In the afternoon, Bronson inspected Maestas' time- card for the period July 1 through July 15 and circled in red ink the fractional hours when Maestas had been late 2 and placed a question mark in the blank spaces where no punch appeared on the afternoon of July 3. He recalled that Maes- tas had left without permission at noon on Saturday, July 3, had not reported on his next scheduled work day, July 5, and had told Bronson, by way of explanation, that he had to catch an airplane. Bronson had told Maestas on Tuesday, July 6, that Bundy had spent a lot of money in advertising, that Maestas' services were necessary on Saturday to get the used cars ready for delivery to the purchasers, and that if he was ever again absent on a Saturday without permission he would be discharged. Bronson came to work on Monday, August 9, between 11 a.m. and 12 noon, called Maestas to his office and told him he was fired because he missed Saturday. On the morning of Fnday, August 13, Bronson asked Dews to prepare a document (received in evidence as Resp. Exh. 7) Because I wanted to make a review of the personnel with respect to the punctuality in the service depart- ment. Respondent's Exhibit 7, described by Dews as "a tabulation of [hours worked on a daily basis] by all service and body shop employees from the period of the first of July through the 13th of August," was delivered to Bronson on Friday, August 13. On that same day, Bronson reviewed Dews' tabulation and timecards covering the same period. Bronson ascertained that Hollingsworth, Stevens, Gra- ham, and Miller were the least punctual of all the service employees, and also worked the least number of hours each day. He decided that they should be terminated for their lack of punctuality, for their horseplay, and for their poor workmanship. An additional reason in the case of Miller was his use of vulgar language. Bronson explained that he did not discharge Luley, Dub- 2 Maestas worked 12 days in the pay period, July 16 through 31 His earliest punch was 8 06 and his latest was 8 26 His tardiness totaled 2 10 hours for the period. berly, or Romans because The three that were remaining had been a short time employed mechanics and they weren't perfect, but their environment was the one thing that was causing them to be not perfect, and it was my feeling that these men were just going the wrong way because of this environ- ment, and without the environment, they would be okay. Q. (By Mr. Lerten) Would you tell the Trial Exam- iner what you mean by the environment of these three men? A. The profanity, the horseplay, mainly that. On Friday afternoon, Bronson asked Dews to have all the paychecks ready before 8 a.m. Monday morning. He did not state why. On Fnday evening, he looked for Daffin to announce the proposed terminations, but Daffin had al- ready left.; On Saturday morning, he announced to Bundy that he was terminating four mechanics. On Monday morning, August 16, at 7:35 a.m., Bronson received all the paychecks from Dews, went to the service department, and stood by the timeclock. Hollingsworth was the first to arnve, about 8 a.m. I said, "This is it. Here's your pay check. Don't bother punching in." And at that time, they questioned me as to why. . . . He says, "Well, why? What's your justifi- cation?" And my comment was, "Let's just call it punc- tuality." Stevens and Graham arrived a few minutes after eight. I approached [Stevens], said, "This is your final check." He also stated "Why?" and I also stated, "Punctuali- ty." And that was the end of the conversation. I stated [to Graham] "This is your final check. Don't punch in. You are through." .. . He said, "Well, okay. Why?" Again I stated, "Let's state the punctuality." Miller came in at approximately 8:30. He . . . walked up to me and said, "Well, I guess I'm next." and I said, "Yes, sir." and he said, "Why?" and I said, "Let's call it punctuality." 3. The testimony of Bob Bundy Bundy has been in the automobile business since 1949 and has three locations in the Denver area. He has a general manager in charge of each store and the general manager "calls the shots." Bundy heard about the July 26 meeting at Mr. Steak about 3 or 4 days later. He was not informed 3 Daffin left the shop at about 5 20 p in on Friday, August 13. He has not been seen since that date by either Bundy or Bronson, and Respondent's counsel has been unable to locate him BOB BUNDY, INC. before the raise was promised to the mechanics. I heard about the raise he gave. I imagine he had good reason for it. On the Thursday before the discharges, Bronson said he was up to here with service and punc- tuality and workmanship and he was going to let four men go. In the first part of July 1971, Earl Fuoco telephoned and said to Bundy, You did repairs on the car and they put in the wrong bolts and it is definitely your mechanic's fault. Bundy had Dews pull the file, told Bronson that the repairs were going to be made by Fuoco Motors, to send them a purchase order, to pay the bill when it came in, and to get to the bottom of it. Hollingsworth had installed the wrong bolts. In June and July 1971, the owner of a 1970 Ambassador, Mr. Olson, called Bundy several times complaining that he had a problem with his windows, that he had had the car in the shop several times, and they never did repair it. Both Miller and Stevens had worked on the car . Bundy told Bronson to get the Work done and if neither one of these mechanics could fix it to give the car to someone who could. In mid-July 1971, Mr. Rohng, who had purchased a new 1971 Ambassador from Bundy, complained that he had taken the car to the service department three or four times and there was still an oil leak in the transmission. Miller had worked on the leak on June 4 and on June 23. Bundy spoke to him personally. I asked him, "Dan, can't you get to the bottom of it? What's the matter?" and I said, "You have just got to tear it apart again and try." We finally got it fixed up though. . . . Mr. Bronson knows about it and Mr. Bronson has all these complaints go across his desk. On Friday, August 13, 1971, Bundy received a telephone call from Mr. Knipprath. ... he said he had his car in my service department at Bob Bundy Inc. on July 22, 1971, and that he had just come from a service station, they had put it on a rack, and were supposed to put in a new drive line, and he said, "There's no new drive line put in." I set up an appointment for Monday morning so I could personally inspect it. I got off the telephone and went to the service department , Mr. Daffin was out at the time, so I had Jim Dews to pull his files. I walked over to the parts department and Charlie, [Meador] the parts man, I asked him if he knew anything about this, but the drive line was never put in, and he pointed over 343 on the floor and said, "There's the drive line, Mr. Bun- 11 dy. So I never did see Mr. Daffin, or haven' t seen Mr. Daffin since. Monday morning when all of this hap- pened and he came in. I apologized to the customer and I said, "Here's your drive line, take it to my west store and they will install it at no charge." Q. (By Mr. Lerten) On Friday, did you ascertain who the mechanic was who worked on it? A. Yes, I did. Yes, sir, it was Mr. Arnold Hollings- worth that worked on this car. Q. Did you talk to any supervisor about this? A. I talked to Mr. Bronson about it. I sure did... . I told Mr. Bronson just what I told the court, just now, and that I was real embarrassed and I didn't want anything like this to ever happen, and to get to the bottom of it. 4. The testimony of James W. Dews Dews, as of March 8, 1972, had been Respondent's office manager for a little over 2 years. The office area is open to the showroom and separated from the shop by a solid wall. There is one small window on the shop and one small win- dow on the service department through which money and papers may be exchanged with the cashier. Dews directly supervised the work of two clerical employees, one of whom was the cashier. When each new employee is hired, he is told that Federal law requires that the timecard be punched and that the employee should punch the clock when he arrives in the morning, when he goes to lunch , when he returns from lunch, and when he leaves for the day. Dews reviews the timecards , and when he finds that they have not been punched he speaks to the individual. Dews spoke to Gra- ham when he was hired, and spoke to him again when he noted in March 1971 that Graham was not punching out for lunch. Dews also reviewed the attendance records twice a month to inform department heads of punctuality. Dews has the only key to the timeclock, and checks its accuracy with the telephone once a month. The clock has never been fast but has, on occasion, been as much as 3 minutes slow . No one has ever claimed that the clock was fast. In May 1971, Dews' clerks did complain to him that the clock was slow. Dews observed Hollingsworth throwing objects on Au- gust 4 or 5 and saw Stevens throw things on either August 8 or August 9. In the latter part of July, he observed a water fight between Graham and Miller with window-washing bottles used as water guns. In mid-July Graham threw either a hammer or a wrench and put a hole either in the wall or in the service desk. Dews heard the noise made by the object thrown by Miller, found out who had thrown the object, and reported the fact to Bronson. On the evening of Thursday, August 12, Dews was direct- ed by Bronson to prepare the document which was received in evidence as Respondent's Exhibit 7. Dews testified: This is a tabulation of all service and body shop em- 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees from the period of the first of July through the 13th of August. Q. (By Mr. Lerten) What's the tabulation? A. The hours for the employee on a daily basis bro- ken down daily. Q. This shows the total hours worked: is that it? A. Yes. Q. Who prepared it? A. I did. Q. What did you do with that list? A. I turned it over to Donald Bronson. Q. When? A. On Friday, the 13th. Q. What did you use as your source for that list? A. Time cards. Q. With respect to this list, this doesn't actually show when people came into work, does it? A. At that time, no, it does not. Q. What does it show? A. The specific amount of time that the individual worked . They could have worked longer than eight hours or less than eight hours. It also indicates the days that the clock was never utilized to its fullest extent, wasn't used properly. The initials "NP" signify "no punch" and indicate merely that there were some punches missing, i.e. "not enough information on there to determine a total hour, total hours worked." When Dews delivered Respondent's Exhibit 7 to Bronson on Friday, August 13, Bronson "wanted to know if I would be able to cut all the checks that evening and have payroll ready since it was the ending of a period." On Saturday, August 14, [Bronson] said that he was finally going to make a decision, he was tired of what had been taking place and he was going to make a decision. On the morning of Monday, August 16, Bronson asked for the checks of Graham, Miller, Hollingsworth, and Ste- vens, stating that they were being terminated as of that day. I myself asked a question . . . as to why, and he said, "On several counts. One being the horse play, the vul- garity that was continuously used in the shop, the tardi- ness of the individuals, the incompetence of the people." Nothing was said about union membership or activity. 5. The testimony of Rohn Leon Mitchell Mitchell was Respondent's parts manager from Novem- ber 17, 1969, to November 1, 1971. From January 1, 1971, through August 16, 1971, Mitchell was a service writer on a part-time basis, covering it in the morning and helping out when the service manager was ill or on vacation. On and after August 16, 1971, James wrote service orders under Mitchell's supervision. From Mitchell's position in back of the parts counter, he was able to observe the entire shop. It was the practice of Stevens, Graham, Miller, and Hollingsworth to gather in Miller's stall each morning after punching in, and before starting to work, and spend about 15 minutes with coffee and doughnuts, discussing the events of the night before. Mitchell, if he was not busy, joined them in doughnuts and coffee, as did Daffin, on some occasions. Horseplay continued from January 1, 1971, snowball fights in the winter and water fights in the summer when it was hot. Most everybody in the shop threw things "mostly in the fun type attitude." There was "no real harm in it, just idle time." Rubber grommets, a half inch in diameter were thrown by Miller, Graham, Hollingsworth, Dubberly, Lu- ley, and Mitchell. Snowballs were thrown by Graham, Mill- er, Hollingsworth, and Mitchell. Stevens did not throw anything. Miller and Graham had water fights in the sum- mer. During the first week in August, Graham decorated the washroom with cloth toweling. During the first week in August 1971, a brake hub, 5 inches in diameter, weighing between 10 and 15 pounds, was thrown by Miller. It passed between Mitchell and a lady customer, bounded off the parts counter, and hit a used car, placing a dent in it and making considerable noise. Mitchell did not report any of these incidents to Bronson or to any other supervisor or official of Respondent. Mitchell had no advance knowledge of the discharge of August 16, and had not been consulted. After the dis- charges, Once, Chuck Luley, as he was walking the picket line, he called me over and we had our front door open and he called me over and asked me why he hadn't been fired or any of the other newest employees had not been fired. . . . I told him that I didn't really know, except that most of it was tardiness for the other guys, plus their horseplay and poor workmanship and things like that Mitchell specifically denied telling Luley that Respon- dent did not expect the newer employees to stick with the Union or to be scared off by the discharges. Mitchell was not questioned about any statement made at Bronson's meetings of May 15, July 16, or July 23, 1971. 6. The testimony of Robert Stevens Stevens, who was hired February 1, 1971, recalled that Bronson talked to the employees when he took over in May 1971, but did not recall any mention of horseplay in Bronson's talk. One or 2 months before July 16, 1971, me- chanics complained to Daffin that employees in other auto- mobile agencies were receiving a greater proportion of the flat rate than were Respondent's mechanics. Prior to late BOB BUNDY, INC. June 1971, Stevens was almost always late. In late June, Daffin asked Stevens to be more prompt because customers were there at 8 a.m. and they liked to see the mechanics there. After that Stevens was more prompt. Prior to July 16, 1971, if he was not busy he would punch the timeclock in the morning. If he was busy he would not punch the clock. He almost never punched the clock at noon. In the evening, he was "just as lax." Stevens met with Union Representatives Jones and Walk- er at noon on Friday, July 16, at the Mr. Steak restaurant. Other employees present were Hollingsworth, Miller, Maes- tas, and Luley. When the General Counsel suggested, "How about Graham?" Stevens replied with another question, "Gene Graham?" and did not answer the question. Stevens signed an "application for membership" in the Union at the restaurant and saw application cards signed by Luley, Holl- ingsworth, and Miller. Luley was sitting beside Stevens. On the afternoon of Friday, July 16, ... about 1:30, 2:00 Mr. Daffin asked me why I didn't tell him of our union meeting. He said that he had some bad instances with Unions in which they did not bene- fit anybody. He also told me I should look at the situa- tion from both sides of the fence. Later Daffin told everybody in the shop that Mr. Bronson was holding a meeting in his office after five. Bronson's meeting was attended by Parts Manager Mitchell, Sales Manager Johnson, Service Manager Daffin, Office Manag- er Dews, Body Shop Manager Schmid, Service Writer, Jerry James, and employees of the service department and body shop. Mr. Bronson started off mean. He said he had heard we contacted the Union and he wanted to know what our reasons were for this, and if it was that anybody had any gripes, he would like to have them aired at the meeting . . . I know everybody in there had their say on what we didn't like about the shop and why we went to the Union. Mr. Bronson said at this time that he and Mr. Daffin would check into it to see what the other shops were making and what their insurance benefits were, and for Mr. Daffin to make a list of the equipment which the shop needed, that the shop should supply, and he would check into these matters next week and review it with us further then. .. . Mr. Bronson said that he wanted us to start punching the time clock four times a day . . . myself and Mr. Hollingsworth brought up the point to Mr. Bronson again that the time clock we punched was totally inac- curate. . . . Mr. Bronson said he would check into the time clock and have it checked out. Rohn Mitchell also said that he would make an effort to help Mr. Daffin 345 call around to the other dealerships and check on their flat rate and to check prices for the equipment the shop did need. Stevens did not attend the July 23 meeting in Daffin's office, having been excused by Bronson from work on that day. Stevens never used foul language in speaking to either Johnson or Bronson and never told Johnson to get out of the shop. The incident referred to in Bronson's testimony occurred on or about August 1 and, as described by Ste- vens: I had a used car in my stall which I was repairing. Jerry James Sr. came back and told me he was going to use my tools to put the plates on, and I told him, no, he wasn't. Don Johnson caught me in Ray Daffin's office in front of Ray Daffin and started chewing me out, told me I had no business telling him not to use my tools, and I said I had every right. I paid $700 for the tools I had and I was fed up with replacing them. He told me that my privileges in that shop were taboo . . . I tried to make an apology to Mr. Bronson, told him I didn't do it to be smart or cause any trouble, but I was fed up with spending money to buy good tools . . . All [Bron- son] said was, "No problem." Hejust turned away from me and walked off. The employees who attended the second union meeting (Friday, August 6) at Mr. Steak were : Hollingsworth, Maes- tas, Dubberly, Stevens, Graham, and Miller. Before noon, on Monday, August 9, I had a used car in my stall which I was working on for Mr. Johnson and he came back to ask me when I would have the car done because he had the car sold and needed it. I told him that I would try to get it done shortly for him and I asked him about Clarence [Maes- tas], how come he was fired, and he said because of not showing up for work Saturday and he goes, "Clarence is just the start. There will be more to follow".° On Monday, August 16, Stevens was met by Bronson when he reported for work at about 7 or 8 minutes before 8. ° This testimony demonstrates the effect of desire and suggestion on me- mory The affidavit given by Stevens to a Board field examiner contains the statement Maestas was fired on Monday, August 9, scheduled to work on the Saturday prior to that, August 7, did not come in and since he did not have a phone he did not call in As far as I know this is the reason he was fired He told me that he had been fired, that Bronson had told him that "others were to follow " The pretrial affidavit contains no reference to any such words being used by Sales Manager Johnson in talking to Stevens When this fact was called to Stevens' attention he testified that he had not talked to Maestas on the date of his discharge, and that the foregoing portion of the pretrial affidavit was based upon a communication from Maestas on the picket line. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Bronson said,] "There's no need to clock in today. I've got some final checks for some people" . . . he said it was because of my not being prompt for work...... I spent the last three days reviewing your time cards and I'm letting you go." 7. The testimony of Arnold Hollingsworth Hollingsworth was hired by Respondent in January 1970. He called Claude Jones early in July and set up the July 16 meeting at Mr. Steak. At Respondent's meeting at 5 p.m. on July 16: Mr. Bronson opened the meeting . He stated he had only called us for one purpose. He wanted us to be aware that he knew we were talking to the Union. He said we should be certain of what we were doing... . Mr. Daffin asked us why we had been talking to the Union. . . . Mr. Bronson stated that he would take up our other complaints with Mr . Bundy and would meet with us the following Friday. During the following week, Hollingsworth was ques- tioned by Daffin on 2 separate days. On each occasion, Daffin asked what Hollingsworth knew about the Union, and on each occasion Hollingsworth answered , "not very much." Bob Stevens and Rohn Mitchell were present when Bron- son met with the mechanics on July 23 and announced the 25-cent raise. After Bronson left, Daffin reminded the me- chanics that they should punch the clock four times a day. Graham and Hollingsworth objected "because we spent quite a number of nights working late." Dubberly an- nounced that everyone there belonged to the Union and he was going to join right away and give Hollingsworth his money that night. After the other mechanics and Mitchell had left, Luley, Dubberly, and Daffin discussed the Union. Luley said that they planned to contact Mr. Bundy if they could get a majority and Daffin said, "You fellows know that this union movement isn't going to do you any good." Jerry James in July wrote service , contacted customers, and assigned work . The assignment was virtually automatic, since each mechanic had a specialty . On one occasion, James gave Hollingsworth leave to go and get his driver's license renewed . On August 12, James asked why he had not been invited to union meetings . Hollingsworth replied that he could become a member by signing a card and paying $10. On one occasion , James asked Hollingsworth to stay and finish a job, and Hollingsworth complied. Prior to July 16, I punched the time clock twice a day. I generally punched in when I felt like it in the morn- ings. . . . If I missed it when I came to work in the morning, I would generally punch it my first trip after parts, and at night, I punched it when I left, which was at various times . . . shortly after July 16, I started punching it four times a day. Hollingsworth testified that the timeclock was completely inaccurate, usually 3 to 5 , or maybe 10 minutes fast, and he had noticed it as high as 15 minutes fast. Hollingsworth justified his incompetent work on the Lynch car by placing the blame on Daffin. He did not recall working on the Knipprath car. As Hollingsworth was leaving the shop on Friday, August 13, Ray Daffin stopped me, he said, "Arnie, I'm quitting," and I said, "Why are you quitting, Ray?" And he said, "They have taken management out of my hands." I said, "Ray, what do you mean by that?" And he says, "Well, I can't say anything more, but," he said, "you will see a complete turn-around in your service depart- ment Monday morning." When Hollingsworth came to work on Monday morning, August 16, Mr. Bronson met me in front of the time clock. He told me, "I'm letting some people go this morning for punc- tuality, you are among them." I asked Don if there wasn't something a little deeper, if this was the real reason, and he said, "No, this was something that should have been done quite some time ago, but in your case there's been a new development." On Monday, August 16, Hollingsworth picketed with Miller, Romans, Stevens, Graham, and Luley. 8. The testimony of Clarence Maestas Maestas was hired in February 1971, as a lot man. He worked under the direct supervision of the sales manager and his duties included cleaning and washing the used cars, helping to run parts for the parts department, taking care of the lawn, and "odds and ends." His workdays were Monday through Saturday. His pay was $2 per hour, with overtime at $3 per hour calculated as the number of hours worked above the number of workdays in the semimonthly pay period, multiplied by 8. Maestas signed an application card at Mr . Steak on July 16 and attended the meeting held by Bronson that evening. Bronson opened the meeting by saying "that we wouldn't put nothing over on him because he knew what was going on." He said "that we had a meeting with the union that day at Mr. Steak's . . . and then he wanted to know what our gripes were." Maestas asked about a raise , and Bronson replied that they would talk about it later. Daffin said that he would like to have all the mechanics there at 8 o'clock. Bronson said he would have another meeting in 1 week. Although Bronson had told Maestas that he did not have to attend the July 23 meeting in Daffin's office , Maestas was there when the meeting started. The only other persons present were the mechanics , Daffin and Bronson. Mr. Bronson, he led off the meeting and told about that they got their 25 cent raise and he still talked about the BOB BUNDY, INC. 347 time clock, that he would like to have them there at 8:00 o'clock, punching in. . . . Right after Mr. Bron- son started talking about that I had to leave then... . Well, as soon as Mr. Bronson started talking that he would like to have the employees punch in at 8:00 o'clock so they would be there when the customers are there, that's when I left. On Saturday, July 3, Maestas asked Bronson if he could have the rest of the afternoon off. Bronson "said it was all right with him, but I would punch out at noon." Maestas did not recall whether or not he worked on Monday, July 5, and did not recall any conversation with Bronson on July 6. About noon on Friday, August 6, 1971, Maestas walked to Mr. Steak with Stevens and Graham and, after lunch with the union representatives, walked back with the same per- sons. Maestas did not report for work on Saturday, August 7, and did not call in. On Monday, August 9, Well, I was punching out for lunch and Mr. Bronson came up to me and said, "After you punch out, I would like to see you in my office." ... And so, I punched out and went up to his office and he told me to come in and I went in and sat down and he asked me where I was the previous Saturday because I was supposed to work and I told him I was sick and he asked me how come I didn't phone in. Well, I told him I didn't have no telephone in my apartment, and he asked me how come I didn't go out and phone and I explained to him, "Because I didn't feel like getting out of bed and going to walk any distance to make a telephone call." ... Then he said, "Might as well call it quits because I already had somebody else in mind for you," and that I was just fired. 9. The testimony of Charles Luley Q. (By Mr. Reed) Mr. Luley, did you ever work for Bob Bundy? A. Yes, I did. Q. From when to when? A. I don't remember the exact starting dates, ap- proximately a two-month period of time. I don't re- member the exact starting date when I started to work for them. Q. When did you terminate? A. Well, I guess the termination would be the same as everybody else was, except I wasn't fired. Q. You were not fired? A. No, I never went back to work from that day. Q. Did you go on strike? A. Yes, I did. Q. Did you picket? A. Yes. Q. Would that be August 16? A. Yes. Q. Who was present at this meeting? A. There was Bob Stevens, Clarence Maestas, Ar- nold Hollingsworth, Dan Miller, Jene Graham, myself and then the two Union representatives. Q. Did you see anyone else sign a card? A. Yes, I did. Q. Who? A. Mr. Stevens, Mr. Graham and also Mr. Miller. Q. I hand you what is marked for identification General Counsel's Exhibit 3-d and ask you to examine it; have you ever seen that before? A. It's an application for the Union. Q. Did you see-that purports to be an application for Mr. Graham-did you see him filling it out? A. Yes, I did. Q. Did you see him sign it? A. Yes, he and I sat there and talked over whether or not we should join the Union and he and I signed at the same time. I didn't actually see him sign it, but picked up the pen the same time I did. Q. Did you see him giving anything that looked like that to the Union agent? A. Yes, he did. He handed it to him. * * * Q. All right. Directing your attention to August 16, 1971, the day of your termination, you weren't dis- charged, as you testified; did you picket that day? A. Yes. Q. Did you have a conversation with Rohn Mitchell after your termination, after the time you went on strike? A. Yes, I don't remember if it was that day or a day following. Q. Where did this conversation take place? A. In the doorway to the service department, the entrance to the service department. Q. Do you remember what time of the day it was? A. I would say probably around 10:30, 11:00 o'clock in the morning. Q. Who, if anyone else was present? A. No, it was just the two of us talking. Q. Would you tell me what Mr. Mitchell said to you and what you said to Mr. Mitchell on that occasion? A. I asked Mitchell why myself and the two others hadn't been fired with the ones that were fired, and he told me that the reason we hadn't been fired was that they didn't think that we would stick with the Union. They thought we would be scared off by it. Q. Did he say the reason for this? A. Being the three that weren't fired were new, that we would drop the Union and go back to work, or wouldn't-well, they were surprised we walked off. Q. Back to this conversation with Rohn Mitchell, do you recall anything else being said in that conversa- 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lion? A. Just the fact that the reason they didn't fire us was because they figured we would be scared away from the Union and they didn't expect we would walk out with the others. MR REED No further questions. MR LERTEN I call upon counsel for the General Counsel for any statements given by this witness to the Board. MR REED General Counsel has no statements. s s s Q. (By Mr. Lerten) Did you discuss your testimony with anyone from the union prior to being here? A. No. Q. Did you volunteer this information to Mr. Reed? A. The reason I volunteered the information, I felt there was an injustice done to the other mechanics there. a s s s Q. Had you ever told anybody before about this alleged discussion with Mr. Rohn Mitchell? A. I believe I mentioned it to some of the other mechanics. s s s s s Q. (By Mr. Reed) You stated you talked to me last Thursday. A. I believe it was last Thursday. Q. I don't recall myself. When, what time of day? A. Approximately 9:00 o'clock in the morning. Q. How long did we talk? A. Approximately 35 minutes. Q. Could you just explain to the Trial Examiner, since he exhibited some interest, why we didn't talk any longer than that? A. Yes, I was at work and that's all the time I could get off to come to talk to Mr. Reed. Q. Did I ask you whether you were telling the truth? A. No, you didn't ask, no, sir. I cannot credit any of the foregoing testimony of Luley, nor his testimony that "Mr. Bronson informed me when Mr. Daffin was not there, Mr. James was in charge." For rea- sons set forth in the section of this Decision entitled "Ap- propriate Unit" (infra) I have found that Graham did not meet with the union representatives at Mr. Steak on July 16. The testimony of Luley that he picketed on August 16 is disproved by his timecard which shows: in at "7.88 Aug 16" and out at "17.12 Aug 16". I further find that Mitchell correctly recalled and truthfully reported the brief conver- sation which he had with Luley. Mitchell at the time of the hearing was no longer employed by Respondent. He testi- fied, adversely to the position of Respondent, that Hansen was only a summer employee. He participated with the mechanics in their prework coffeebreak. He characterized the snowball, grommet-throwing, and water fights as, "no real harm, just idle time." Mitchell also threw snowballs and grommets. Finally, Mitchell, when he testified that he did not report the hub-throwing incident to anyone, directly contradicted the (later) testimony of Bronson. It is most unlikely that either Bundy or Bronson would have confided an unlawful motive to Mitchell, and even less likely that he would have repeated it to one of the newest of Respondent's employees on a picket line. E. The Appropriate Unit and the Union's Representation Therein A unit of service employees excluding salesmen, supervi- sors, and office clericals is presumptively appropriate, Aus- tin Ford, Inc., 136 NLRB 1398, and there is no evidence in this record tending to overcome this presumption. Jeffrey Hansen, lot man, should be excluded from the unit on the ground that he was a college student employed only for the summer months, Romac Containers, Inc., 190 NLRB 238. I find on the testimony of Stevens that the service writer, Jerry James, attended Bronson's meeting for service depart- ment employees on July 16, 1971, that he was on that date employed in the service department. James was not a super- visor within the meaning of the Act and should be included in the unit from and after July 16, 1971. Diamond T. Utah, Inc., 124 NLRB 966, 967, fn. 3. As of July 16, 1971, there were 12 employees in the appro- priate unit: Caudill, Luttrell, Rothaermel, James, Hollings- worth, Stevens, Miller, Graham, Luley, Dubberly, Meador, and Maestas. On July 16, 1971, the Union held valid evidence of repre- sentation signed by Hollingsworth, Stevens, Miller, Luley, and Maestas. The card received in evidence on the sole testimony of Luley, bearing the purported signature of Jene Graham,' and bearing the date July 16, 1971, was not signed at Mr. Steak on July 16, and must be rejected as evidence of repre- sentation. Graham did not attend the meeting at Mr. Steak on July 16. Luley's testimony that Graham signed the card in his presence is specifically rejected. Jones testified credibly and categorically that there were five employees at the meeting. He did not recall either Luley or Graham. Stevens followed Jones on the witness stand. When asked to name the employees present, he named five persons. When the General Counsel suggested: "How about 5 The General Counsel has been unable to locate Graham BOB BUNDY, INC. 349 Graham?" Stevens' surprise was evident in his reply, "Gene Graham?" Stevens testified that Luley sat beside him and that he saw cards filled out by Miller and by Luley. He did not mention Graham in that connection . Stevens' later testi- mony that he walked to the meeting with Graham must be disregarded. Stevens realized that he had let down the Gen- eral Counsel with his earlier reply and sought to remedy that deficiency. Timecards raise a strong inference that Graham was not in the shop on July 16,6 which was the first day of a pay period . Graham clocked out at 17 .25 on July 6. The next punch is 17.42 , July 19 . Graham's first punch out for lunch was 12.30, July 21, which would indicate that he was not at Bronson's meeting, and had not heard the order to punch in and out at noon . Stevens' testimony that Graham, at Bronson's meeting (July 16), stated that he needed a valve grinder, is uncorroborated and constitutes a further attempt by Stevens to please the General Counsel. As of July 16, 1971, the Union represented 5 of the 12 employees in the appropriate unit . On some later date, the Union received in the mail one card with printing on both sides. One side was headed , "application for membership" with the name in printed characters "Raymond L. Dubber- ly" and the date "7-23-71." The line for signature is blank. The other side, headed "Check-off authorization and As- signment," bears the signature "R.L. Dubberly" and the date "7-23-71." Dubberly did not testify and the General Counsel has been unable to locate him . The card was re- ceived in evidence on the testimony of a handwriting expert that the signature on the checkoff authorization was the same as the signature on an Internal Revenue Service form in Respondent's files, and on the testimony of Jones that the card was received in the mail together with a check for $10 "in the latter part of July." The expert was unable to state whether the date on the card had been written by the same person who signed it. In view of the indefiniteness of Jones' testimony and in view of the fact that Union records would show when, if ever, $ 10 was received from Dubberly , and, in view of the fact that the date of designation was sharply questioned by Respondent, the failure of the General Counsel to produce these records is strong evidence that Dubberly's card was not received by the Union on or prior to August 16, 1971. The note on the bottom of the card in different ink "Fee Paid $10.00 Date 8-4-71" is unexplained and has no eviden- tiary value. I find that there is no credible evidence on this record that Dubberly, on or before August 16, 1971, designated or se- 6 Cards received in evidence show only the following punches on July 16 Dubberly 8.34 12.66 13.56 Caudill 8.25 17.04 Rothaermel 8.12 17.04 Luley 8.06 Graham Luttrell Stevens 8.04 Miller Hollingsworth 8.22 19.05 lected the Union to be his representative for purposes of collective bargaining. The last day worked by James Caudill was July 16, 1971. He was terminated on Respondent's books on August 1, 1971. He returned to work without the formality of rehire, on September 15. John Romans was hired as a line mechanic August 2 and went to work August 3, 1971. Assuming that Caudill left the unit on July 19, and Romans joined the unit on August 3, the Union represented 5 of the 1 I employees in the unit in the intervening period. John Rothaermel quit at 17.66 on August 5, again reduc- ing the unit to 11. On August 9, 1971, Jerry Caranza was hired as a body mechanic and Maestas was discharged . The Union then represented 5 employees in a unit of 13, if Maestas be in- cluded. On August 11, Romans signed an application for mem- bership and Donald Cross was hired as a lot man to replace Maestas. If Maestas had been discharged in violation of Section 8(a)(3) of the Act , he would be included in the unit and Cross would be excluded. The Union, on August 11 through August 13 represented , at most, 6 employees in a unit of 13. For the foregoing reasons, I find that the Union did not at any material time represent a majority of Respondent's employees in any unit appropriate for bargaining. F. Further Evaluation of Testimony The testimony of Clarence Maestas, Bob Bundy, Rohn Mitchell, and Claude Jones is, in general, accurate and relia- ble. The testimony of Bronson and Dews that the tabulation (Resp. Exh. 7) was delivered to Bronson on Friday, August 13, is disproved by the face of the document . Respondent's Exhibit 7 shows the hours worked by Dubberly, Luley, Lutt- rell, Caranza, and Romans on Monday , August 16. Bronson's testimony that Monday, July 5, was a working day for Maestas is disproved by Maestas' timecard which shows that he received holiday pay for 8 hours, not worked, on July 5. Bronson's testimony that Mitchell informed him of the object thrown by Miller is contradicted by Mitchell. Bronson's testimony that he first informed Bundy on Satur- day, August 14, of his intention to discharge four mechanics is contradicted by the testimony of Bundy that he received this information on Thursday, August 12. Timecards received in evidence support in general the testimony of Stevens and Hollingsworth that they punched the clock only when it was convenient to do so. The letters "N/P" on Respondent's Exhibit 7 show accurately the days on which mechanics failed to punch the clock either in the morning or in the evening, or (by reason of absence) did not punch the clock at all. The timecards not only support the foregoing testimony, but tend to refute the testimony of Dews that he reviewed the attendance record of employees in the service department twice each month because: its part of my responsibilities to inform the department heads of punctuality, of not punching the clock correct- ly, or, in the case that an individual may be falling into the category of minimum wage. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The single instance described by Dews in which he per- sonally checked the timecard of a service employee fully confirms the laxness of the operation . Dews testified that when Graham was hired Dews told Graham that he should punch the clock "In the morning, out for lunch and back from lunch, out in the evening." Graham's card for the pay period March 1 through March 15, 1971, exhibits a total disregard for these instructions . The card bears no noon- time punch . On 8 days there is no morning punch and on I day there is no evening punch . When he saw this card, Dews did speak to Graham . The reason was that Graham, during the first half of March , was not paid a proportion of the flat rate, but was paid at the rate of $3.25 per hour for all hours he spent in the shop . On this single instance, Dews conferred with Graham and write on the card in ink "8.00" for each blank morning and " 17.00" for the blank evening. The timecard covered I 1 working days, and 11 hours were subtracted from the total shown on the augmented card to compute Graham's pay. The unreliability of Stevens' testimony is demonstrated by his prompt acceptance of the General Counsel 's sugges- tion that Graham met with union representatives at Mr. Steak on July 16 and by his belated recollection of a July 9 conversation with Sales Manager Johnson . Stevens' testi- mony, "I was most generally there on time" and "I was very seldom late" is disproved by his timecards. From Monday, July 19, through Friday, August 13 ( 19 working days), Ste- vens punched in at or before 8.00 on 7 days . If Stevens' testimony that the clock was 3 minutes (0.05 hours) fast is true, he arrived on time on 10 of the 19 working days. Very little credit can be given to the testimony of Holl- ingsworth . His testimony that he never heard Bronson say anything about punching a timeclock is contradicted by Stevens and by Maestas. His testimony that Luley, Dubber- ly, and Maestas picketed on August 16 is disproved by their timecards, which show: Dubberly 7.86 Aug 16-17.06 Aug 16 Romans 8.10 Aug 16-17.05 Aug 16 Luley 7.88 Aug 16-17.12 Aug 16 His testimony that Stevens was present at the July 23 meeting in Daffin 's office is contradicted by Stevens, whose testimony on this point is confirmed by a blank day on an otherwise complete timecard. There is no corroboration for his testimony that Daffin , at Bronson's meeting on July 16, asked "why we had been talking to the Union ," and this testimony, though undenied , must be discredited. The testimony of Bundy and Bronson describing "poor workmanship" is amply documented and is credited in full. Although no mechanic was told on August 16 that he was being discharged for poor workmanship or horseplay, I find that these factors did influence Bronson's decision. The horseplay is undenied . The reckless act of Miller in throwing a brake hub at Mitchell is undemed . Miller did not testify, and his absence was not explained. The words "poor workmanship," as used by Bronson, are also an euphemism for the dishonest billing of customers for work not performed . Hollingsworth testified that he did not recall working on Roy Knipprath's 1965 Marlin, and that he never left a new part lying on the floor . The repair order shows that Knipprath paid $145 .75 on August 4, 1971, for work on his car which was left in the shop on July 22, 1971. The bill included $78.85 for a new drive shaft, and $30 for the labor of replacing a rear pinion seal and drive shaft. Flag sheets signed by Daffin certify that Hollingsworth should be credited with 4.5 flat rate hours for this work . Bundy's self- inculpating testimony that the shaft was not installed must be credited. The record of Graham's "poor workmanship" stands, undenied and unexplained. Miller is not charged with any act of dishonesty, but the testimony of Bundy that he was unable to correct an oil leak in the Rohng car or correct a window problem in the Olson car stands undenied . Respondent's records show that Ste- vens performed the operation of "check left door glass" on the Olson car on June 8, 1971. Stevens had no explanation. On July 19, 1971, Clara Biesel brought a 1957 Nash to Respondent's shop. She was charged $156.74 for materials and labor . The flag sheets show that Graham was credited with 12 . 1 flat rate hours and Stevens with 0 .2 flat rate hours. The only work claimed by Stevens on the car was "State inspection." On December 31, 1971, Respondent credited Biesel for $96.48, upon becoming convinced that this por- tion of the work for which she had been charged had not been performed. G. Conclusions 1. The United States Supreme Court in N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), summarizing at page 33, its constructions of Section 8(a)(3) of the Act (citations omitted) stated: The statutory language "discrimination ... to .. . discourage" means that the finding of a violation nor- mally turns on whether the discriminatory conduct was motivated by an antiunion purpose. . . . proof of an antiunion motivation may make unlawful certain em- ployer conduct which would in other circumstances be lawful. Some conduct, however, is so "inherently des- tructive of employee interests" that it may be deemed proscribed without need for proof of an underlying improper motive. . . . If the conduct in question falls within this "inherently destructive" category, the em- ployer has the burden of explaining away, justifying or characterizing "his actions as something different than they appear on their face," and if he fails, "an unfair labor practice charge is made out." Although the record before me contains no credible di- rect evidence of antiunion motivation , Bronson's solicita- tion of grievances, his grant of an increase in commissions, and his discharge of five employees who, he had reason to suspect, were interested in the Union , bring this case within the "inherently destructive" category, and require that Re- spondent establish, by a preponderance of the evidence, that the conduct was motivated by business considerations. BOB BUNDY, INC. I find, despite the unreliability of much of its testimony, that Respondent has met this burden. Bronson's testimony that he opened the meeting on July 16 by reminding his auditors of their manifold shortcomings is undenied, and supports his testimony that this was the purpose of the meeting. There is no evidence that the increase in the flat rate was granted for other than the legitimate business rea- son of meeting the competition on automobile row. Maestas was absent without leave on Saturday, July 7, and was discharged for that stated reason . The fact that Bronson invented and described a nonexistent prior warning does no more than create a doubt as to his motive. The four mechanics were discharged for the stated reason "lack of punctuality." The attempt of the General Counsel to show that they were in fact punctual by attacking the reliability of the timeclock is a dismal failure . They were not punctual , and their punctuality did not improve after July 16.7Two additional reasons for the discharges are also true. All engaged in horseplay, and all were guilty of poor work- manship. 2. The questions put by Daffin to Stevens and to Holl- ingsworth did not amount to interference , restraint, or coer- ' There were 20 workdays between and including July 19 and August 13 The number of days when each shop mechanic punched in on or before 8 00 is set forth in three columns The first assumes that the clock is correct, the ,second assumes that it is 3 minutes fast, and the third assumes that it is 6 minutes fast Employee Clocktime Clocktime Clocktime plus 0.05 plus 0.10 Miller 5 6 8 Graham 0 2 4 Stevens 6 10 10 Hollingsworth 7 11 13 Luley 7 8 9 Dubberly 11 14 16 351 cion. The original complaint, issued September 14, 1971, did not allege any act of interrogation. An amendment to the complaint issued November 11, 1971, alleges: On or about July 9, 1971, Respondent, acting by and through Ray Daffin, asked an employee if the employ- ees were trying to bring in the Union and if the employ- ee was spokesman for the Union. The variance between this allegation of the amended com- plaint and the testimony of Hollingsworth, in conjunction with the demonstrated unreliability of Hollingsworth's me- mory, cause me to reject his description of statements made by Daffin on July 20, 21, 22, or 23. The question put to Stevens by Daffin on July 16, 1971, was isolated and non- coercive. 3. The change in the flat rate announced July 23, effec- tive August 1, resulted from a survey of rates paid by other automobile dealers and was motivated entirely by business considerations. 4. The instruction to employees to use the timeclock was not new. Respondent's negligence in enforcing this require- ment could raise problems for it under the Fair Labor Stan- dards Act, and Respondent has a right to expect the cooperation of its employees in maintaining records re- quired by law. 5. The complaint does not allege that the Act was violat- ed by Bronson's solicitation of grievances. 6. I find no credible evidence on this record that James possessed any supervisory authority while acting as a ser- vice writer in July and August 1971. CONCLUSION OF LAW Respondent has not, on this record, engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) or (3) of the Act. [Recommended Order omitted from publication.]