Checker Motors Corp.

CAB SERVICE AND PARTS CORP. 217 Cab Service and Parts Corporation and Checker Motors Sales Corporation, Subsidiaries of Checker Motors Corporation and Local 259, United Auto- mobe, Aerospace and Agricultural Implement Workers of America. Case 29-,CA-3202 November 12, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 24, 1973, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding- Thereafter, the General Counsel 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 brief and has decided to affirm the rulings , findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 the Respondents, Cab Services and Parts Corporation and Checker Motors Sales Corporation, subsidiaries of Checker Motor Corpo- ration, Long Island City, N.Y., their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. a complaint, amended at the hearing, which was issued by the Acting Director of the Board's Region 29. The complaint alleges that the Respondents violated Sections 8(a)(1) and (3) of the Act by discriminatonly discharging one Vieux Figaro, by refusing to pay him a Chnstmas bonus, and by engaging in other conduct which independ- ently violated Section 8(a)(1) of the Act.2 The resolution of this case on the merits has been complicated by a dispute which arose concerning the identity of the proper parties respondent to the General Counsel's complaint. This question must be addressed at the outset. On January 5, 1973, the Charging Union filed with the Regional Office a charge naming as the charged party "Cab Service and Parts Corporation, a subsidiary of Checker Motors Corporation." The charge was served by the Regional Office on Cab Service and Parts Corporation by sending a copy thereof by registered mail to its place of business located in Long Island City, New York. On March 9, 1973, the Acting Director issued a complaint herein naming as respondent "Cab Service and Parts Corporation, a subsidiary of the Checker Motors Corpora- tion," the identical entity named in the January charge. The original complaint contained the usual factual and conclusionary allegations that the respondent designated therein was engaged in interstate commerce. An answer, filed March 15, 1973, admitted these commerce allega- tions.3 After the hearing opened, it appeared that the Charging Union had also filed with the Regional Office, on February 28, 1973, a charge similar in, content to its January charge, naming as respondents thereto "Checker Motor Sales Corporation and Cab Service and Parts Corporation, subsidiaries of Checker Motors Corporation." The amend- ed charge was personally served after the hearing opened on May 3. It was served upon counsel for the two designated respondents, who accepted service on behalf of Checker Motor Sales Corporation but denied any authori- ty to accept service on behalf of the Checker Motors Corporation. After the amended charge was served, the General Counsel moved to amend the complaint to add thereto a second respondent, namely "Checker Motor Sales Corporation, a subsidiary of Checker Motors Corporation." The motion was unopposed and was granted. Thereafter, the General Counsel and the two respondents, who were represented throughout the pro- ceedings by the same counsel, stipulated to certain facts 1 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 resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are 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. DECISION 1. FINDINGS OF FACT A. The Parties to this Proceeding WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing on May 3 and 4, 1973,1 upon 207 NLRB No. 43 1 The transcript is hereby corrected. 2 The principal formal entries docketed in this case are as follows: Original charge filed January 2, 1973; amended charge filed February 28. 1973; original complaint issued March 9, 1973 and amended at the hearing; answer filed March 16, 1973; hearing held on May 3 and 4, 1973; briefs of General Counsel and Respondent filed June 22, 1973, and June 21, 1973, respectively. 3 As it is uncontested, I find that Cab Service and Parts Corporation is a New York corporation maintaining its principal office and place of business in Long Island City. New York, and other places of business in various other states. I also find that Cab Service and Parts Corporation, in the course and conduct of its business, purchased at its New York place of business parts and equipment valued at in excess of $50,000, from points and places outside the State of New York, and that it derived gross revenues from its business in excess of $500,000, of which $100,000 originated from taxicab companies engaged in. commerce. Accordingly, Cab Service and Parts Corporation is an employer within the meaning of Section 2(2). (6) and (7) of the Act. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conclusions showing that Checker Motor Sales Corporation, the new respondent, was also engaged in interstate commerce.4 General Counsel then moved to amend the outstanding complaint to extend all of the outstanding allegations contained therein against the original respondent to Checker Motor Sales Corporation as well. The motion was unopposed and was granted. The General Counsel contends that the amended charge and amended complaint are sufficient to bring within the ambit of the Board's processes a third corporation, namely Checker Motors Corporation. I disagree. There is a suggestion in the record of the existence of Checker Motors Corporation, that it operates from an office located in Kalamazoo, Michigan, and that its president, Mr. David Marken, is also president of the two respondent corpora- tions. Presumably Checker Motors Corporation sells automobiles to Checker Motor Sales Corporation, and Cab Service and Parts Corporation services those vehicles, both before and after they are sold to customers in the taxicab industry. This is the extent of the evidence in the record relative to the operations of the Checker Motors Corpora- tion. No proposition is better founded in this field of the law than that the filing and service of a charge upon a respondent thereto is an indispensable jurisdictional prerequisite to an exercise by the Board of its remedial processes. Section 10(b) of the Act establishes such requirements beyond peradventure. General Counsel contended at the hearing that the adding of the appositive "a subsidiary of Checker Motors Corporation" after the names of the employers specified in the original and amended charges, is sufficient to designate the Checker Motors Corporation itself as respondent in addition to the other two corporations who are clearly parties to this proceeding. I regard the phrase relied upon by the General Counsel as merely a description or a further identification of the actually named respondents, and not as the separate designation of a separate respondent. If the Union had filed a charge against "Cab Service and Parts Corporation, a customer of Consolidated Edison," such an appositive would surely not serve to make Con Ed a charged party. I do not view the descriptive language replied upon by the General Counsel in any other light. What is true of the charge is likewise true of the original and the amended complaint. It is a simple enough matter to designate a charged party and the respondent to a complaint in language which specifically and unambiguously identifies it as being subordinated to the Board's jurisdiction, but such was not done in the present case. Moreover, there is no evidence in this record that either the charge or the complaint was ever served upon Checker Motors Corporation. There are no jurisdictional allega- tions or facts in the complaint showing whether Checker Motors Corporation is engaged in commerce sufficiently to fall within the Board's jurisdictional standards, nor is there 4 Upon the facts stipulated by all parties, I find that Checker Motor Sales Corporation, a subsidiary of Checker Motors Corporation, maintains its principal place of business at Long Island City, New York, where it is engaged in the selling of new and used taxicabs. At this location, Checker Motor Sales Corporation, during the past year, purchased and caused to be transported directly from points and places outside the State of New York, goods valued in excess of $50,000. As it is a joint employer with Cab Service any allegation in the complaint, much less evidence in the record, to show that Checker Motors Corporation is a joint employer with either of the respondents or was so immersed in the events litigated herein that jurisdiction might be asserted over it in some vicarious fashion. See Esgro, Inc., 135 NLRB 285, and Barrington Plaza and Tragniew, Inc., 185 NLRB 962. Even with the flexibility accorded to Federal agencies in administrative practice, the Board is not wholly free to ignore the separate and distinct nature of individual corporate entities which is universally accorded to them by state incorporation laws. Moreover, as regards the necessity for timely charges, the Board has not blurred such distinctions as to parties respondent, either in regard to corporate employers or unincorporated respondent unions, and I will not do so here. Concrete Haulers, Inc., 106 NLRB 690; H. K Ferguson Company, 124 NLRB 544, 566; National Welders Supply Company, Inc., 132 NLRB 660. ' See also Judge Fahy's opinion in Mine Workers v. N.LR.B. (Blue Ridge Coal Corporation), 299 F.2d 441 (C.A.D.C., 1962). 1 note that the General Counsel did not press this point in his brief. Accordingly, I conclude that Checker Motors Corporation is not a party respondent in these proceedings, and so I will not recommend to the Board an order requiring any act or forbearance on its part. B. The Respondents as Joint Employers As indicated above, Cab Service and Parts Corporation (hereinafter called Service) and Checker Motor Sales Corporation (hereinafter `called Sales) are sibling corpora- tions. The two operations are physically located at the same place in Long Island City, New York, and were previously located together at another place of business in the Metropolitan New York area. While most car dealer- ships combine the sales and service functions into a single enterprise, the respondents herein do not. For some unexplained reason, the sale of fleets of taxis or individual taxis, is handled herein by Sales, while the repair and maintenance of taxis' is handled by Service. At the Long Island City location, Sales operates both its new and used car sales under the general direction of Marvin Wincoff, its executive vice president. Used car sales are under the immediate control of Vice President Jerome Kaplow. Service is operated under the immediate control of Peter M. Hilden. Sales employs car salesmen, a small clerical force, and two employees involved in this proceeding whose jobs are variously described as mechanics, porters, or car jockeys. Service employs about 50 mechanics, helpers, parts men, and related employees, in addition to a clerical force. At present, hourly rated employees of both entities punch in and out at the same timeclock and use the same employee facilities. They repeatedly interface with each other throughout a normal working day. In a related representation case (Case 20--RC-2102), a and Parts Corporation, it is therefore an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, although individually its own stipulated purchases would not bring it under the Board's retail standard. I also find that Local 259, United Automobile, Aerospace and Agricultural Workers of America, is -a labor organization within the meaning of Section 2(5) of the Act. CAB SERVICE AND PARTS CORP. 219 representation petition was filed by,the Charging Union herein to embrace employees of both Respondents. An approved "stip" election was agreed to by all parties. In this agreement, the appropriate collective-bargaining unit was described as "all service shop employees, including parts department employees employed by Cab Service and Parts Corporation at 35-30 38th Street, Long Island City, New York, 11101, and including service shop employees on the payroll of Checker Motor Sales Corporation at 35-30 38th Street, Long Island City, New York, 11101, affiliated companies and subsidiaries of Checker Motor Corp.," with the usual exclusions. An election was held on November 30, 1972, in which employees of- both respon- dent employers voted, including Vieux Figaro, the discri- minatee named herein. Both Figaro and fellow employee William Refakis (who was on the eligibility list but did not vote) were carried on the payroll of Sales. During the preelection campaign, literature disseminated in opposition to the Union by Service, which employs the bulk of employees in the stipulated unit, was sent to Sales employees. Sales employees attended an antiunion speech delivered before the election by Service Supervisor Hilden. In light of these factors, I conclude, contrary to the contentions of the Respondents, that Sales and Service have interrelated and commonly controlled operations as well as common labor relations policies, and hence were and are a single integrated enterprise and joint employers within the meaning of Board and court precedents. Overton Markets, 142 NLRB 615; Jewel Tea Company, Inc., 162 NLRB 508; K-Mart Division of S. S. Kresge Company, 159 NLRB 256 and 161, NLRB 1127; Thriftown, Inc., d/b/a Value Village, et al., 161 NLRB 603; B & B Industries, Inc., 162 NLRB 832; Radio and Television Broadcast Technicians Local Union No. 1264, IBEW v. Broadcast Service of Mobile, Inc., 379 U.S. 812. Accordingly, the acts Jerome Kaplow, vice president of Sales, are attributable to both respondents; any unfair labor practices found are the responsibility of both respondents; and the order recom- mended herein will be directed to both Sales and Service. C. The Events in Question Vieux Figaro a French-speaking Haitian national, was hired by Sales in September 1971 as a mechanic and car polisher.5 Figaro was never regarded nor employed as a fully trained mechanic. He was assigned to perform various semiskilled tasks in the handling and moving of cars which Sales purchased and resold in its used car operation. His immediate supervisor was Jerry Kaplow. In December 1971, and again in March 1972, Figaro, upon the recommendation of Kaplow, was given two merit increases aggregating $25 per week. Kaplow testified that, during this period of time, he regarded Figaro as an excellent employee. However, for reasons discussed here- inafter, Kaplow became, dissatisfied with Figaro's job performance and, on December 13, 1972, terminated him. The Union began an organizing campaign among the Sales and Service employees during the fall of 1972. On October 16, 1972, Figaro signed a designation card. The Respondents resisted - the organizing drive by various means, both lawful and unlawful , but were unsuccessful in this effort. At an election, held on November 30, 1972, the Union won by a vote of 28 to 20, and was certified as the bargaining agent for a unit composed of both Sales and Service employees (Case 29-RC-2102). Among the legally unchallenged efforts of the Respon- dents in resisting the organizing campaign was a letter, directed to employees of both companies, in which Service's Executive Vice President Peter , M. Hilden outlined the benefits voluntarily conferred by the Respon- dents on its employees, asserted that the unionization of the shop was wholly unnecessary and not in the interests of bargaining unit members, and urged them to vote "No." Hilden made the same remarks at a massed assembly of employees which took place shortly before election day. At this talk, Kaplow admits stating in French to Service employee Leopold Sabat that the antiunion arguments advanced by Hilden were true. Sabat disagreed. Various preelection and postelection conversations between Kaplow and Figaro, and Kaplow and Sabat, on the subject of the union are denied or disputed by Kaplow. On November 20, Kaplow assertedly inquired of Sabat in the Service shop if he was going to vote for the Union. Sabat replied that it was none of Kaplow's business, to which Kaplow stated : "Don't vote for the union ; the union is no good." Sabat then told Kaplow, "I know what is good." Shortly thereafter, Kaplow asked Sabat how Figaro was going to vote, and Sabat told him that Figaro's feelings in the matter were none of Kaplow's business. Shortly before the November 30 election, Kaplow called Figaro into his office, informed him of the upcoming election, and asked him to vote against the Union, stating that if the Union won, he would have to pay the Union $10 a month in dues- Kaplow is also reported to have said that two Sales employees in the unit would have to quit if the Union won because they did not want to pay Union dues. Kaplow also stated that if the Union won, the Union, and not Kaplow, would be his boss, and any complaint which Figaro might have would then have to be pressed through the Union. He also told Figaro that he was stupid, to, which remark Figaro reportedly objected, saying that not even his father talked to him like that. According to Figaro, Kaplow, at this conversation, also threatened to fire him if he voted for the Union. When Kaplow asked Figaro why he wanted the Union, Figaro replied that the Union, had looked out for his , sister when she was sick and had taken care of her business, so he felt it would also look out for him. Kaplow also told Sabat not to vote for the Union because the Union was no good. Sabat replied that he had been to school and, in effect , knew where his best interests lay. A few days after the election, Kaplow assertedly asked Figaro in the company parking lot,if he was glad the union won. Figaro replied, "Kaplow, that is not your business, that is mine. I fought for the union, the union is mine. This is my problem, this is not your problem." Kaplow also asked Sabat whether Sabat wished to work for him rather than remain in the shop. There is a dispute as to when this 5 Figaro testified in English, largely without the aid of an interpreter. Sabat, also a Haitian, did not speak English as well and relied heavily on the interpreter. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request took place. Sabat places the conversation just after the election and states that Kaplow told him in the course of the conversation that he was going to get rid of Figaro because Figaro voted for the Union. Sabat objected, saying that Figaro was his friend, that Figaro had been a good worker, and that he should not be discharged. Kaplow admits asking Sabat to go to work for him, places the time a month before the election, and flatly denied any statement that he was going to fire Figaro because of Figaro's support for the Union. Kaplow also told Figaro that, now that the Union had won, the Union, and not Kaplow, would be Sabat's boss. During October and November, and in the months immediately preceding them, Figaro had been a party to events and conduct which Kaplow claims were the reasons for his dismissal. In a letter to the Regional Director, dated January 9, 1973, Kaplow states that Figaro was discharged because chronically late for work, took 12 used batteries without permission, and was guilty of negligence by failing properly to install antifreeze in a number of used taxicabs being held for resale, as a result of which some 14 cars experienced cracked engine blocks. Kaplow testified that Figaro often arrived for work as much as 30 to 45 minutes after the 8 o'clock reporting time, and that such tardiness occurred on the average of twice a week. Figaro emphati- cally denies that he ever arrived for work after 8 o'clock, and further states that Kaplow was in no position to know when he arrived since Sales employees did not, with the exception of 1 week, punch timecards and Kaplow never showed up until after 9 a.m. to see for himself. Kaplow also recounts that he kept dead batteries 'stored in the washroom to give to the junk dealer as a sweetener in various trades that he made. He states that late in October he caught Figaro removing several batteries from company premises in his car, but did not require Figaro to return them as it was quitting time and he did not want to cause a fuss. Figaro states that he removed some dead batteries in a company truck driven by another employee, with Kaplow's express permission, and then sold them, adding that he obtained such permission from Kaplow after complaining to him about his actions in altering the price written on a sales contract involving a vehicle sold by Kaplow to a Haitian customer whom Figaro had steered to the company. During October, Sales sold a fleet of taxicabs to the Marby-Forest Company and received as trade-ins some 259 used taxis from the Marby-Forest (or Marby) fleet, These taxis, all of which had been driven approxi- mately 100,000 miles before trade-in, were delivered to Sales at the rate of five or six a day over a period extending from mid-October to mid-November. Figaro was assigned to winterize them, i.e., to install antifreeze in each of the motors. Kaplow claimed that Figaro performed this function negligently by failing to start the motors to circulate the antifreeze and, as a result, the blocks on several cars cracked, resulting in a loss to the company of a substantial amount of money. Figaro denies that there were any cars with cracked blocks. On the first Sunday in November, shortly after the aforementioned dead battery incident, Kaplow placed an ad in the Long Island Press seeking an experienced auto mechanic for light work in the used taxi division. He assertedly did so in search of a replacement for Figaro. No one responded to the ad, so Kaplow decided to reevaluate the matter of discharging Figaro. However when he later received complaints about cracked motor blocks from two customers and reportedly discovered seven such blocks himself, Kaplow determined that Figaro was responsible because he failed to start the engines of the used taxis after inserting the antifreeze and renewed the decision to discharge him. About 2 weeks thereafter, Figaro asked to be excused from work because of a headache, nose bleed, and fever. Kaplow was reluctant to give him the time off, saying he needed him on the job, but Figaro insisted that he was too sick to work and went home. This incident took place on Wednesday afternoon, December 6. Kaplow placed a second ad for a mechanic in the Long Island Press, which ran the following Sunday, Monday, and Tuesday. Upon getting a response to the ad, he discharged Figaro, effective Wednesday, December 13. Figaro asserts, and Kaplow denies, that when Figaro returned to work on Monday, he was informed by Kaplow that he was going to be discharged but would be allowed to finish out the payroll period which ended on Wednesday. At his insistence, Figaro was paid his final salary on Wednesday, December 13, in cash. He returned to the company premises on Friday, December 15, and demand- ed that he also be given his Christmas bonus check. Kaplow refused, saying that he was not entitled to the check because he was no longer an employee and informing him that the bonus check had been returned to the company payroll section in Kalamazoo, Michigan. When Figaro protested this action, Kaplow told him to see his lawyer., D. Analysis and Conclusions In analyzing and commenting upon the factual issues presented in this case, counsel both for the General Counsel and for the Respondents have devoted consider- able attention to attacking the credibility of adversary witnesses. In this effort, both have scored telling blows. Regrettably, I cannot simply walk away from this arena leaving the protagonists prostrate in battle, as in the final act of a Shakespearean tragedy. Rather, an attempt must be made to sort out fact from fiction in a record containing much of both, in order to award a frayed and wilted laurel to one of the contestants. To achieve this end, I cannot merely credit one witness and discredit the other, but am forced to rely upon what, for lack of a better phrase, might be termed a rule of comparative credibility. Of some assistance in resolving this dilemna is the testimony of employee Leopold Sabat, who gave testimony to support the allegations in the complaint. Respondents would discredit Sabat's testimony on the basis that he is now on strike and is also a fellow national of Figaro, and thus might be influenced to color or distort evidence by his present posture or a general affinity for a friend and fellow countryman. While Sabat may not be an entirely neutral witness, he has little directly and personally to gain from the outcome of these proceedings. Moreover, it is undisput- ed that Sabat was for quite sometime on unusually good terms with Kaplow, as well as being a friend of Figaro. At one time, he worked directly for Kapiow, who held him in CAB SERVICE AND PARTS CORP. 221 high regard, as evidenced by the offer to Sabat to return to work in the used car division or to help locate a mechanic who, in Kaplow's words, was as good as Sabat. It is also quite clear from Kaplow's other testimony that he and Sabat enjoyed a close personal relationship . Sabat fre- quented Kaplow's office and often lunched with him; Kaplow often went out of his way to visit Sabat at the latter's job station . Such a relationship persisted over a considerable period of, time and gave rise to a situation in which Kaplow might very well have been prompted to confide in Sabat and to inquire of him as to matters which Kaplow might be reluctant to discuss with someone he knew less intimately. They conversed both in French and in English and could communicate one with the other despite scant formal training by each in the native language of the other. The shortcomings involved with Sabat's testimony relate not to his truthfulness but to difficulties in translation at the hearing . However, these shortcomings are not so serious as to mark his testimony as unreliable or to prevent findings of fact from being predicated upon the evidence he gave. There is no dispute that Kaplow privately told Sabat, in advance of the event, that he was going to discharge Figaro. This fact , in and of itself, would illustrate a degree of rapport and closeness which existed between them. The only dispute on this facet of the case is whether Kaplow also advised Sabat that he was going to discharge Figaro because Figaro voted for the union. Despite Kaplow's denial, I conclude that Sabat truthfully recounted this portion of their postelection conversation-I make the same finding concerning Sabat's version of Kaplow's preelection inquiries into whether Sabat was going to vote for the Union and as to whether Sabat knew how Figaro was going to vote in the representation election. On that basis, I conclude that the Respondents herein violated Section 8(a)(1) of the Act by engaging in the unlawful interrogation of employees, and the unlawful direction of employees. The General Counsel alleges that, on November 27, 1972, some 3 days before the representation election, Respondents' agent Kaplow called Figaro into his office, engaged him in a long conversation on the subject of the forthcoming election as recounted above, directed him not to vote for the Union, and threatened to discharge him if he voted for the Union. The testimony of Figaro, even if believed, would not amount to proof that Kaplow directed him to vote against the Union, and, for that reason,, among, others, I will recommend dismissal of so much of paragraph nine of the complaint that alleges that the Respondents directed Figaro to vote against the Union. In light of the often evasive, contradictory, and implausi- ble testimony given by both Kaplow and Figaro, as detailed by both the General Counsel and counsel for the Respondents in their respective briefs, I am reluctant to credit the testimony of either of these witnesses on material, contraverted points, in the absence of corrobora- tion. Figaro's ' testimony that, on the November 27 occasion, Kaplow threatened him with discharge if he voted for the Union and inquired of him why he wanted a Union, is flatly contradicted by Kaplow. It is also uncorroborated. Accordingly, I discredit Figaro and am unwilling to make a finding of fact on the basis of his disputed testimony standing alone. Figaro also testified that, 2 days after the election, Kaplow asked him if he was glad the Union won. Figaro assertedly replied that it was none of Kaplow's business. As this testimony is denied and is uncorroborated, I discredit it also and am likewise unwilling to make a finding based upon it. Respondents have presented both the Regional Office and me with not one but three reasons for Figaro's discharge. Any one of these reasons might well justify the discharge of an employee, but the question here, as in any discharge case, is not one of justification but of motivation. The issue is not one of just cause but of precipitating cause. Where a course of employee conduct rather than a single event it asserted as the basis for the discharge, we must once again launch a search for the proverbial straw that broke the camel's back and which actually prompted the employer to rid himself of the complainant . If we are to accept the Respondents' argument, we have been furnished with three such straws. The first of these is the dead battery incident. I find Kaplow's version of this incident, contradicted as it was by Figaro, wholly unbelievable. Kaplow asserts that he caught Figaro leaving the premises with dead batteries stacked on his automobile. These batteries were a discarded item of only nominal orjunk value. Kaplow's pretrial version as to the number of batteries he found conflicts with his trial testimony on the subject. While , in Kaplow's mind, the removal of these discarded items was an action so reprehensible as to prompt him to decide to find a replacement for Figaro , he did not, upon discovery of the items in Figaro's car, even request, direct, or suggest to Figaro that he return the batteries from whence they came. It was quitting time, so Kaplow testified, and he did not want the fuss which would inevitably ensue from such a suggestion to delay his departure for home. I find it incredible that an incident so trivial in its import on the day it occurred would cause the termination of an employee who had admittedly rendered "excellent" service for a period of many months. Indeed, as Kaplow went on to explain, it did not. Kaplow did not move promptly to discharge Figaro for a defalcation which would make Figaro's continued presence intolerable. At that time, he did not discharge him at all. He made a nominal effort to recruit a mechanic, and when that effort produced no results, he decided, in effect, to forget the matter and allow Figaro to continue working. Figaro was not discharged until nearly 6 weeks after this incident. With respect to Figaro's continued tardiness, I do not believe Figaro's statement that he was never late for work. However, he was never docked for late arrival. There are no specifics in the record as to when he came late, or how late he reported, as indeed there was no supervisory authority on the job at 8 a.m. each morning to know when he was late and when he was on time. The nature of his job did not demand absolute punctuality, as in an assembly line operation, but allowed Figaro a wide latitude of unsupervised action. It appears clear to me that a certain limited flexibility on late arrival was tolerated and excused over a long period of time, so when Respondents seek to point to an occasional lateness as the basis of the 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge, their contention has the hollow ring of pretext about it. In the absence of other evidence, credited above, the cracked block question would give some pause. However, reflection on this matter likewise demonstrates that this matter was seized upon after the discharge to lend plausibility to the action. According to Kaplow, Figaro improperly winterized in excess of 250 cars by failing to start and run them for a prescribed period after pouring antifreeze in their radiators . As a result, several used taxis in the so-called Marby fleet assertedly suffered cracked blocks from sitting in the Respondents' lot in cold weather. As noted before, these cars were trade-ins, delivered in batches of five or six per day over a period of several weeks in late October and early November. Kaplow did not instruct Figaro specifically that the winterizing process should include a requirement that the car be started for a period of 15 or 20 minutes after the addition of antifreeze to the radiators, so there is no question of the disregard by Figaro of , an explicit instruction or regulation. The allegation is one of general negligence resulting in property damage. It is undisputed ,that Figaro installed antifreeze in most the cars in question. Between 150 and 175 of these cars were driven, after the addition of antifreeze, from Respon- dents' location in Long Island City to a storage yard in College Point, a trip requiring about 20 minutes. Hence, any shortcoming in Figaro's performance could have had no effect on these vehicles. The operation of these vehicles in the course of the trip to the storage yard would fully circulate any antifreeze which had previously been added. As for the balance of the-Marby fleet which remained at Long Island City, they were started each day in the company lot as a routine matter in order to insure a quick start whenever a customer might visit the premises to inspect a vehicle before making a purchase. Moreover, these cars were continually moved or "jockeyed" about the lot by Figaro and his fellow employee, Refakis, so in the course this operation antifreeze would assuredly circulate. There is no evidence in this record that the weather during the period in question was so cold for so long a time that improper winterizing would cause vehicles to suffer cracked blocks. Respondents ask me to take official notice that, according to the National Weather Service, the temperature in New York City dropped to below 32 degrees F on eight dates during the period in question. I decline to do so, as this is a matter of proof. More to the point, the proof would have to show that the weather was so far below freezing for so long a time that improperly winterized cars would necessarily suffer motor damage. There is no such evidence in this record. Rather, what is in the record is the fact that Respondent Sales purchased 259 used taxicabs as trade-ins on a large sale of new taxis. The used taxis had 'all undergone more than 100 ,000 miles of city driving. These cars had not been driven by a troop of little old ladies, nor had their use been confined to weekly drives to and from, church. They had been driven an aggregate of many millions of passenger miles by taxi drivers in the City of New York, and had necessarily experienced a degree of vehicle punishment exceeded only in an armored cavalry division engaged in active combat. The cars in question were purchased "as is" and resold as junk. In short, if there were cracked blocks in any of these vehicles-and Figaro disputes that there were-it is entirely possible for them to have arisen from causes other than improper winterizing, and specifically, from improper winterizing attributable to the negligence . of Figaro. Another employee,- Refakis, winterized two vehicles, and it is admitted surmise on the part of Kaplow that none of the damaged vehicles were among those serviced by Refakis. Moreover, Marby fleet vehicles necessarily were stored on the Long Island City lot for some period of time before Figaro was able to get around to servicing them, so, if blocks were cracked while in storage there , they could easily have cracked prior to the addition of antifreeze by Figaro rather than afterward. Kaplow first told the Regional Office in writing that some 14 blocks were cracked as a result of Figaro's negligence, and later retracted that figure, reducing it to 11. Of this figure, four were ostensibly discovered by company customers in New England, who purchased used taxis under written disclaimers of warranties but later assertedly called Kaplow to complain . Kaplow claims that he gave one customer a $250 rebate and the other a $500 credit on future purchases as a result of these complaints . I find it incredible that the professional purchaser of individual used taxis, doing business in the commercial jungle of used car buying at an "as is" sale, would purchase any vehicle without first examining them and ascertaining that they were free from such a basic and easily discoverable defect as a cracked motor block. Indeed, Kaplow had only hearsay evidence that these vehicles were thus defective, and no direct evidence confirming these reports was placed in the record. Kaplow's action in making a financial reduction in purchase price which was not required by law may well have been prompted by reasons of retaining goodwill or some other transaction wholly unrelated to the question of cracked blocks. In any event such rebates or future discounts do not serve to corroborate the highly questionable and unproven contention advanced here and are nothing but self-serving, makeweight arguments. As to the existence of seven cracked blocks which Kaplow says he saw himself, Figaro, who was equally or better able to ascertain these facts than Kaplow, simply says it is not so, quite apart from the arguable inferences which Kaplow seeks to draw from them. Kaplow offered no corroboration for the basic fact of the existence of cracked blocks, including testimony which might have been given on this point by the other car jockey, William Refakis, whom Respondents summoned gas a'witness. As this basic fact is contested and uncorroborated , I discredit Kaplow's testimony in this regard, as I have discredited the contested and uncorroborated testimony of Figaro on other matters. The self-serving conjecture by Kaplow, relating to negligence by Figaro in winterizing cars , should be discounted as a reason for discharge for yet another reason. Kaplow neither discharged Figaro on November 20, when he assertedly discovered these matters ; nor did he take any prompt steps to find a replacement, waiting until after the 'November 30 election to ask Sabat for help in finding a replacement and until December 11 or there- abouts before placing a want-ad for a replacement . Like the CAB SERVICE AND PARTS CORP. 223 other straws which Respondents placed in the wind, this one did not break the camel's back, but in my estimation, Figaro's known support for the Union did. Discounting Figaro's, uncorroborated and contraverted testimony, it is clear that Respondents exhibited considerable animus for the Union, that they allowed their animus to extend to illegal actions, that they knew of Figaro's union sympathies and objected to them, that Kaplow stated clearly that he would take reprisal on Figaro for his prounion vote, and that Kaplow discharged Figaro shortly after a union victory at the representation election for several reasons, none of which stand up under scrutiny. Accordingly, it is my conclusion that Respondents, and both of them, were guilty of violating Section 8(a)(3) of the Act when they fired Vieux Figaro. One further point must be addressed. The General Counsel alleges as an independent violation of the Act the fact that the Respondents failed to pay Figaro a 1972 Christmas bonus because of his union activities. The record at this point is inconclusive as to whether, under company practice or policy, Figaro became entitled to a bonus, how much the bonus might be, and at what point in time Figaro's asserted entitlement to a bonus might have vested. Moreover, a direct causal nexus between Figaro's union activities and the denial of the bonus is at best tenuous. Figaro was not an employee when the bonus was paid, and, while his termination was discriminatory, the denial of a bonus appears to follow from the discrimina- tion rather th an stand as an integral part of it. As such, it more readily falls into the same category as the denial to' Figaro of other compensation which he would have earned but for the discharge. Accordingly, the payment of the 1972 Christmas bonus to the discriminatee is, in my judgment, a matter best left to the compliance stage of this proceeding, as `a possible element of the remedy for the violations already found. Accordingly, I will recommend the dismissal of section 13 of the complaint, without prejudice to a consideration of the question in implement- ing an appropriate remedy. Upon the foregoing findings of fact, and upon the entire record considered as a whole, I make the following: - IT. CONCLUSIONS OF LAW 1. Respondents are joint employers engaged in com- merce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Jerry Kaplow is an agent of both Respondent Employers. 3. The Union is a labor organization within the meaning of Section 2(5) of the Act. 4. By discharging Vieux Figaro, as found above, the Respondent Employers herein, and each of them, have violated Section 8(a)(3) of the Act. 5. By the acts and conduct set forth in Conclusions of Law Number 4, by interrogating employees concerning their union sympathies, and by directing employees not to vote for the union the Respondent Employers herein, and each of them, have violated Section 8(a)(1) of the Act. Such unfair labor practices affect interstate commerce within the meaning of Section 2(6) and 2(7) of the Act. III. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I will recommend that they be ordered to cease and desist therefrom, and to take certain affirmative actions designed to effectuate the purposes and policies of the Act. The recommended order herein will provide that the Respondent Employers, and each of them, shall offer to Vieux Figaro reinstatement to his job, and shall make him whole for loss of earnings in accordance with the Woolworth formula,6 with interest computed at 6 percent per annum. Included in such earnings shall be the amount of any Christmas bonus which the General Counsel can establish that Figaro would be entitled to under normal company practice or policy had he not been discharged unlawfully. I will also recommend that the Respondents be ordered to cease and desist from engaging in a repetition of the conduct found to be illegal, and that they post the attached notice, in English and in French, advising their employees of this order and of their rights. Upon the foregoing findings of fact, conclusions of law, and upon the entire record considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER? Respondent Cab Service and Parts Corporation and Respondent Checker Motor Sales Corporation, and each of them, and their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment, because of their union or protected activities. (b) Directing employees not to vote for the Union and not to engage in union activities, or interrogating employ- ees concerning their union sympathies and activities or the union sympathies and activities of other employees. 2. Take the following affirmative action which will effectuate the purposes and policies of the Act: (a) Offer to Vieux Figaro immediate and full reinstate- ment to his former position without prejudice to his seniority or to other rights he previously enjoyed, and make him whole for any loss of pay or bonuses suffered by reason of the discrimination found, in the manner described above in the section entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary to analyze the amount of backpay and bonuses due under the terms of this recommended Order. 6 F. W. Woolworth Company, 90 NLRB 289. 7 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in sec. 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. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at Respondents' place of business at Long Island City, New York, copies of the attached 'notice, written in English and in French, marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by representatives of both Respondents, shall be posted immediately by it upon receipt thereof, and be maintained by the Respondents for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily placed . Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of receipt of this Order, what steps the Respondents have taken to comply herewith. I further recommend the dismissal of paragraphs 10 and 13 of the complaint. 8 In the event the Board's Order is enforced by a Judgment of the 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," WE WILL NOT warn or direct employees not to vote for the Union, or not to engage in union activities. WE WILL NOT interrogate employees concerning their union activities or the union activities of other employees. WE WILL offer to Vieux Figaro full and immediate reinstatement to his former position without prejudice to his seniority or to other rights previously enjoyed, and WE WILL make him whole for any loss of pay suffered by him by reason of his termination. All of our employees are free to join or assist Local 259, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, or any other labor organization. Dated By APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF TIIE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We are posting this notice in accordance with the recommended Order of an Administrative Law Judge. The recommended Order was issued after a hearing in a case in which we were found to have violated certain sections of the National Labor Relations Act. Dated By CAB SERVICE AND PARTS CORPORATION (Employer) (Representative) (Title) CHECKER MOTOR SALES CORPORATION (Employer) (Representative) (Title) 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 16 Court Street, 4th Floor, Brooklyn, New York 11241, Telephone 212-596-3535.