Tom's Ford, Inc.

TOM'S FORD, INC. Tom's Ford, Incorporated and Amalgamated Local Union No. 355. Cases 22-CA-7103 and 22-RC- 6840 October 18, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 20, 1977, Administrative Law Judge Phil W. Saunders issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a statement of position concerning Respondent's exceptions. 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,2 and conclusions of the Administrative Law Judge, to modify his remedy so that interest is computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),3 and to adopt his recommended Order, as modified herein.4 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 as modified below and hereby orders that the Respon- dent, Tom's Ford, Incorporated, Keyport, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: 1. Insert the following as paragraph I(a) and reletter the subsequent paragraphs accordingly: "(a) Laying off, discharging, or discriminating against employees for joining or supporting Amalga- mated Local Union No. 355, or any other labor organization." 2. Substitute the attached notice for that of the Administrative Law Judge. I The Respondent has requested oral argument. This request is denied as the record and exceptions adequately present the issues and the positions of the parties. 2 In light of our finding that Gordon Scala is not a supervisor and that Steven Elyar, Victor Webb, and Richard Webber are eligible voters, the Acting Regional Director is ordered to open and count these four challenged ballots in Case 22-RC-6840 and to issue the appropriate certification. 3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 4 Although the Administrative Law Judge made a finding of unlawful discharge, he inadvertently omitted from his recommended Order the 233 NLRB No. 2 paragraph stating that the Respondent shall cease and desist from such conduct. We shall modify his recommended Order accordingly. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees these rights: To engage in self-organization To form, join, or help a union To bargain collectively through a repre- sentative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT lay off, discharge, or discriminate against employees for joining or supporting Amalgamated Local Union No. 355, or any other labor organization. WE WILL NOT interrogate employees concern- ing their knowledge of the Union and its organizational activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL offer full reinstatement to Steven Elyar, Victor Webb, and Richard Webber and give them backpay with interest for their loss of earnings and restore their seniority and the privileges attaching to it. TOM'S FORD, INCORPORATED DECISION STATEMENT OF THE CASE PHIL W. SAUNDERS, Administrative Law Judge: Based on a charge filed on July 28, 1976, by Amalgamated Local Union No. 355, herein Local 355 or the Union, a complaint was issued on September 30, 1976, against Tom's Ford, Incorporated, herein Respondent or the Company, alleging violations of Section 8(aX1) and (3) of the National Labor Relations Act, as amended. Respondent filed an answer to the complaint denying it had engaged in the alleged matter. Both Respondent and the General Counsel filed briefs. 23 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case, and from my observation of the witnesses and their demeanor,1 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY At all times material herein Respondent, a New Jersey corporation, has maintained its principal office and place of business at 200 Route 35, Keyport, New Jersey, and has been continuously engaged at this location in the retail sale and servicing of new and used automobiles. Respondent's garage in Keyport is the only facility involved in this proceeding. In the course and conduct of Respondent's business operations during the previous 12 months, Respondent derived gross revenues in excess of $500,000 from the sale and servicing of new and used automobiles, and during this period Respondent purchased and caused to be shipped to its Keyport facility automobiles valued in excess of $50,000, which automobiles were shipped to said location directly from States of the United States other than the State of New Jersey. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II1. THE LABOR ORGANIZATION INVOLVED Local 355 is a labor organization within the meaning of Section 2(5) of the Act.2 III. THE ALLEGED UNFAIR LABOR PRACTICE The main issue in this case is whether Respondent unlawfully discharged Steven Elyar, Victor Webb, and Richard Webber, on July 27, 1976, because they engaged in protected union and other concerted activity, and whether Respondent, by its Service Manager John Stillings, unlaw- fully interrogated employees in violation of Section 8(aX3) of the Act.3 In May 19764 the employees of Respondent were unrepresented for the purposes of collective bargaining. Respondent employed approximately 25 employees in the service and parts portion of its business. Webb and Webber were employed as line mechanics and Elyar as a new- and used-car get-ready mechanic until July 27, when all three were discharged at the same time. 5 I The facts found herein are based on the record as a whole and on my observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of N.L.R.B. v. Walton Manufacturing Co., et al., 369 U.S. 404 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. 2 The motion by the General Counsel to introduce by stipulation his Exhs. 7(a) through 1, and 8(a) through (k), is hereby granted. 3 The transcript in this proceeding is hereby corrected in accordance with the respective motions from both the General Counsel and the Respondent, dated May 4 and 9. 1977. Subsequent to the above dates, the Respondent also filed additional motions on May 18, 1977, for a new or reopening of the hearing, and a motion to file reply brief, on the basis that In the spring of 1976, several of Respondent's employees, including Elyar, Webb, and Webber, began to informally discuss the possibility of seeking union representation, and Elyar then contacted an acquaintance of his, and in so doing acquired the name of the Union. On or about July 19, Elyar called the Union to inquire about seeking representation for Respondent's employees, and, within a few days, Lester Horowitz, a business agent of Local 355, returned Elyar's telephone inquiry and the two men then discussed the possibility of a union. In the course of their conversation it was decided that a meeting would be arranged between the Union and Respondent's employees and the meeting was set for July 26, but during the ensuing days between the telephone discussion and July 26, Elyar and Webb (Webber was on vacation) began speaking with other unit employees about the Union, and encouraging them to attend the scheduled meeting. In all, the two men spoke to most of their coworkers in and around the Respondent's location while at lunch or while on coffee- break. This record also reveals that in the spring of 1976 the Respondent's service manager, John Stillings, had request- ed that six mechanics, including Elyar, Webb, and Webber, take certain mechanic skill tests offered by the National Institute for Automotive Excellence. This institute is a nonprofit corporation which conducts competency tests in automotive mechanics and related areas. The Respondent paid for the costs of the tests, but they were taken by these employees on their own time. It appears that a mechanic participating in this program may take any number of tests as one is offered for each basic area of automotive repairs, and anyone who successfully passes one or more tests is then issued a "certification card." Of Respondent's six employees who took the skill tests, four of them passed in at least one area. Webb and Webber passed all of their tests and Elyar passed four out of five, but mechanic Charles Nasso passed only one test. Each of these individuals then received their certification cards. Stillings admitted that these certificates were not a condition of employment with Respondent, nor are they relied on by Respondent in evaluating employees and have nothing whatsoever to do with an employee's work performance. Stillings even recalled specifically reassuring mechanic Charles Nasso, distraught over having passed only one test, that he did not consider the tests as any criteria. However, regardless of this, Elyar, Webb, and Webber felt that they were entitled to some monetary consideration for being the errors and omissions in the transcript of this hearing were so significant that the instant record cannot stand in its present form. However, it appears to me that with the initial motions from the parties, as indicated above, along with a letter from Capitol Hill Reporting, Inc., also rectifying certain portions of the transcript, and in consideration of all, this record is now sufficiently corrected to substantially and adequately reflect these proceed- ings. In accordance therewith, I hereby deny the motions filed by the Respondent on May 18, 1977. 4 All dates are 1976 unless stated otherwise. 5 On August 13, a consent election was approved and a secret election was then conducted by the Board on September 15 among Respondent's service department employees. On October 15 the Regional Director issued his Report on Challenged Ballots. On December 10 the Board issued an order directing hearing in Case 22-RC-6840. On December 28, the Regional Director issued an order consolidating Cases 22-CA-7103 and 22-RC-6840 for hearing. As concerns Case 22-RC-6840, the only issue heard before me involved the supervisory status of Gordon Scala. 24 TOM'S FORD, INC. certified, and particularly where, as here, Respondent envisioned posting their certificates in the office so as to advertise the skill of their mechanics to the general public and to its customers. With this in mind, Webb, Elyar, and Webber, on July 26, approached John Crombine, a mechanic who had been with Respondent for quite some time, and asked Crombine to speak with Stillings on their behalf as to the possibility of being compensated for passing the tests. Crombine agreed to do so, and, late in the day on July 26, he spoke with Stillings on this matter, but Stillings indicated to Crombine that the final say as to any compensation or bonus for these tests was not his decision to make. In this conversation Stillings also asked Crombine "if there was any Union?" and Crombine then replied "there are talks of a union," and also testified that the subject matter of a union was initially raised by Stillings.6 On the evening of July 26, Elyar, Webb, and Webber went to the scheduled union meeting where they encoun- tered approximately 11 other unit employees of Respon- dent and also representatives of Local 355, including Lester Horowitz. At this meeting, Horowitz discussed the benefits of union representation and then showed them examples of union contracts in other organized shops. After these discussions the union representatives left the room to permit the employees to talk about the matter among themselves, and at this time Webb openly identified Elyar, Webber, and himself, as being the employees who had contacted the Union. When the union agents returned to the meeting they then distributed union authorization cards to the employees, and all 14 employees in attendance signed cards and returned them to Horowitz. It was also decided that Elyar would be the liaison between the Union and the employees, and Elyar was given authorization cards to distribute to those employees who did not attend this meeting. On the morning of July 27 Elyar handed out authoriza- tion cards in the shop to employees who had not attended the union meeting the evening before, including John Crombine. It appears that Webber also spoke with employee Robert Smith about the union meeting,7 and during the morning a copy of a Local 355 contract with another shop was given to Crombine. Webber recalled that Crombine took the contract, walked away for about 10 minutes, and then returned it to him. 6 Stillings admitted that after hearing Crombine explain the views of Webb, Webber, and Elyar on their request for possible compensation, he then asked Crombine, "Was there anything else bugging these guys, is there any union stuff going on?" I Service Manager Stillings admitted that he had the type of relationship with employee Smith in which Smith would come to him and tell him about a union or about a union meeting. s Between 5 p.m., the normal quitting time, and the service meeting, Webber and Webb brought the automobile of Webber's girlfriend into the shop, put it on a lift, and removed the transmission. It appears that Webber had received permission from Stillings on the previous day to work on the car using Respondent's facilities. 9 Stillings testified that he was speaking generally to all six employees who had taken the tests. Thereafter, however, Stillings testified as follows: "Well, after I asked for the licenses three times, the three fellows, Elyar, Webber, and Webb gave me no response whatsoever." Elyar, Webb, and Webber recall that Stillings asked them specifically if they would turn in their certification cards, and also agreed that Webb voiced their feelings that they were entitled to some compensation for passing the tests, and further that Stillings then stated that he wanted the cards submitted the following day, and that they ultimately made some indications to do so. On July 27 a regular monthly service meeting was also scheduled by Respondent for 5:30 p.m., and all service employees attended this shop meeting.8 In the initial stages of this meeting, Stillings discussed various topics concern- ing the shop including the desire of Respondent to acquire the certification cards from those mechanics who had passed the skill tests a few weeks prior, as aforestated. Stillings acknowledged that Elyar, Webb, and Webber had informed him of their success on the tests, but otherwise admitted that he did not speak to any of them about their certification cards prior to the shop meeting. However, at this service or shop meeting Stillings supposedly spoke to all six employees who had taken the tests, and asked them to turn in their certificates for display. Stillings recalls the response to his request as being total silence from everybody, but said that Webb finally spoke up and stated that he felt those employees who have passed the tests should receive some sort of monetary compensation or bonuses before turning in their certificates. 9 Later on during the service meeting the employees were shown a film, but at the end of the film Manager Stillings asked Elyar, Webb, and Webber to wait for him in the office. A few minutes later Stillings walked into the office, went to his desk, and emerged with checks in his hand, and then told the three employees involved herein that they were being discharged. They testified that on this occasion Stillings told them that he could see they were unhappy with their jobs, that he knew they were the three instigators of the Union, that the shop was too small to be a union shop,10 and that it would not be a union shop." Respondent argues and contends that the first knowl- edge they had concerning the Union was when Business Agent Horowitz appeared on the premises on July 28 protesting the discharge of three employees involved herein. Respondent maintains that the three alleged discriminatees were fired over a controversy between the service manager concerning management's right to display mechanics' certification cards which had been obtained at the expense of the Company; that, as a result of this dispute concerning the certification cards, the three here involved became wholly uncooperative and caused the service manager to finalize a previously tentative decision to fire them. Respondent further contends that Elyar had "a lot of come back work" in connection with his repair 0o Following the discharges, but preceding the union election, Respon- dent distributed notices to employees stating its position and included the following observation: "We do not need a union in our small shop." See G.C. Exh. 5. " Stillings testified that prior to the service meeting he had ordered final checks prepared for Webb, Elyar, and Webber because he anticipated a negative response from them on the matter of turning in their certificates. As pointed out, he also had reached this conclusion before ever specifically telling these employees to turn in their certificates as admittedly he had not asked them to do so until he mentioned the matter at the service meeting. Stillings also testified that, on the occasion for the discharges here in question, he spoke to each of the three individually. Stated he informed Webb that his lack of cooperation was terrible, that he was causing problems by comparing his salary to other workers, and then expressed his dissatisfaction with the fact that Webb only performed brake and front-end jobs. He said that he then told Elyar that it had been brought to his attention that Elyar had a lot of "come back," and also admonished him for allegedly boasting about getting a job elsewhere; and informed Webber that he had been careless and having problems over the last few months, and that he, Stillings, had been giving Webber more raises than anybody. 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobs, that Webber, among other reasons, was involved in several shop accidents which resulted in considerable property damage, and that Webb could only do a limited amount of brake and front-end work. Respondent also points out to their poor attitudes, and maintains that on occasions they had "boasted" about leaving the Company. Victor Webb began working for Respondent as a "line mechanic" in October 1975. His starting base pay was $160 per week while his base pay on July 27, the date of discharge, was $180 per week and Stillings admitted that the wage increase was due to Webb's productivity.' 2 Stillings classified Webb as a "very good mechanic" on front-end and brake work. Webb testified that his work performance was never criticized, but, to the contrary, was complimented by Stillings. It does appear that Webb was never disciplined for any reason in the course of his employment with Respondent. Stillings testified that one of the reasons Webb was discharged was because he did not turn in his certification card, and because of his inability to do other than brake and front-end work, and also causing problems by continually discussing his desire to receive wage increases. As pointed out, Stillings conceded that he never specifically asked Webb (or anyone else) for his certifica- tion card prior to the service meeting on July 27. It is also undisputed that Webb was hired as a brake and front-end mechanic, and Webb testified that while he was learning other procedures from employee Crombine, Stillings had never suggested to him that his work ability was limited. Moreover, Stillings rarely assigned Webb any work other than brake and front-end jobs, but on occasions when he did assign Webb other small jobs, he found Webb's performance to be "fair." Further it would also appear that Webb's successful test results and certificates show that he could perform other work, and such is revealed by the testimony of Stillings on cross-examination: Q. Do these cards have anything to do with the type of work they can perform? A. To some extent yes. Q. But not in Nasso's case? A. No. Q. But in Webb's case? A. Most definitely. As to complaints by Webb as to his salary and expressing his desires for increases - this record is clear that Webb, like Elyar and Webber, felt that those mechanics who successfully passed the certification or skill tests should receive some compensation, and, in accordance therewith, they asked employee Crombine to intercede on their behalf and then Webb further enunciated their views on this subject at the service meeting on July 27. The record is devoid of any other problem in this regard. i2 In addition to the base salary, line mechanics also received weekly bonuses under a system by Respondent, and Webb frequently received such bonuses. 13 Stillings confirms that he discussed this promotion with Elyar, telling him the Company was installing some new lifts, but he would have to ask the front office about it. Thereafter, on or about July 23, according to Stillings, he went to the office and informed the owner that he was thinking of moving Elyar into the line mechanic position, but was then told that Elyar had "a lot of come back work." Steven Elyar began his employment with Respondent in July 1975, working as a mechanic preparing new and used cars for delivery and performing minor repairs. His starting pay was $130 per week while his pay on July 27 was $145 per week. His wage increase comprised of two raises, the most recent coming a few months prior to his discharge. In the course of his employment Elyar had never received any disciplinary warnings for any reason, nor had his work performance been criticized. Moreover, it appears that on or about April or May, Elyar had spoken to Stillings about the possibility of his becoming a line mechanic when Respondent added new "lifts" to its operation, and Stillings indicated that he was "thinking about it." Elyar and Stillings had a similar decision later on when he again raised the subject with Stillings on or about the Friday before his discharge (July 23), and was then told by Stillings that it was his intention to promote Elyar to line mechanic. 3 Stillings contends that the specific reasons for his decision to terminate Elyar were his refusal to turn in his certification card, his comeback work, and his boasting about leaving Respondent for other employment. As to the first reason, it is clear from prior discussion herein, such refusal to turn in his certification never took place. Relative to the second reason, Respondent introduced several internal repair orders which were alleged to be "comeback" of work initially performed by Elyar, and on jobs which had been performed by Elyar during the 3 summer months of 1976 and the orders Stillings had relied on in deciding to terminate Elyar pursuant to his conversation with the front office on July 23.14 Stillings gave a rough estimate to the effect that a mechanic in Respondent's shop might possibly work on about 3 cars a day or maybe 10 cars a week, and further estimated that in the 3-month period of May through July, the period relied on by the Respondent, Elyar would have worked on between 120 (using the 10-car-a-week basis), and 180 cars (using the 3-car-a-day basis). The General Counsel points out that assuming Elyar's five or six comebacks were, in fact, comebacks, it is clear his percentage of comeback work is still below that which Stillings finds acceptable.15 As to the contention that Elyar was seeking a job elsewhere, Stillings' testimony was that Elyar and Webb were going to walk out, and Colleen Little, the niece of the owner who was employed as a service clerk with Respon- dent, testified that in early July, Elyar asked if she had heard that Webber and Webb were going to see about a job at Straub's Buick, and stated that on the following day she mentioned this conversation to Stillings, Elyar admitted that 2 or 3 months before his discharge, he had filled out an application with Straub's Buick. Richard Webber began working for Respondent as a line mechanic in May 1975. His starting base salary was $130 14 The term "comeback" is used to indicate those cars which have been brought back to the dealership by a customer for repair, and it is found that the problem could have been or should have been discovered by the mechanic who originally worked on the car. is This record shows that George Draper had 12 comebacks and that Nelson Duncan had II comebacks during the same 3-month period without discipline. See G.C. Exhs. 7(a)-(1) and 8(a)-(k). 26 TOM'S FORD, INC. per week, and on July 27, the date of discharge, his base salary was $174 per week. Webber also participated in Respondent's bonus program, and his increases in compen- sation represented four individual raises with the last raise coming about 3 months before his discharge. Stillings again admitted that Webber's wage increases were based on his productivity and stated that Webber had received more wage increases during his short tenure of employment than any other employee. One of the reasons assigned to the discharge of Webber was his involvement in several shop accidents. Webber recalled an occasion or two when he had been told not to drive too fast around the shop, that on another occasion he had dropped an exhaust analyzer machine, and admittedly had also damaged a light fixture when the hood of a car struck the fixture. However, all of these incidents took place several months prior to his discharge and he was never suspended, never received any written disciplinary warning, was never verbally warned that his job was in jeopardy, or that his work performance was not satisfacto- ry, and other than a few offhand remarks by Stillings at the time of the above incident, the record is devoid of evidence that any disciplinary procedure ever resulted from these incidents or, in fact, that the incidents were ever mentioned again in any context until the date of the discharge, months later. Another reason assigned for the discharge of Webber was a refusal to turn in his certification card. However, as previously discussed, Stillings admitted that he had never demanded submission of the cards prior to the service meeting, and I have previously found that no employee actually refused to submit them, as aforestated. One other reason assigned for this discharge was carelessness in doing repair jobs, and for proof of same Respondent introduced various documents or "report cards" received back from customers.' 6 One exhibit (Exh. 3) is dated in September and therefore, could not have been received by Respondent until several weeks after Webber's discharge. Another exhibit is undated (Exh. 6), one shows that several mechanics worked on a car including Webber but it is impossible to determine which mechanic was being criticized (Exh. 7), and Stillings admitted that he could not have relied on one of the other documents (Exh. 9(g)) as it was also dated after the discharge. As pointed out, the only untainted documentary evidence in this sequence appears to be Exhibit 8, which purports to show that, in March 1976, the Company received a comeback on a job Webber performed. However, there is no testimony that Webber was ever questioned about this job in the intervening 4-1/2 months between the complaint and the discharge. As to Webber complaining about his salary after receiving more raises than any other mechanic, it is undisputed that Webber enunciated his views at the service meeting to the effect that mechanics who passed the certification tests should be compensated in some way for their achievement. It is undisputed that Elyar, Webb, and Webber were the three leading union adherents in the shop and were the employees responsible for contacting Local 355, and otherwise promoting the organizational effort which culminated in the filing of a representation petition by the Union the day after their terminations. While Respondent contends that it had no knowledge of the union drive, or the involvement of the discriminatees in such a drive prior to the filing of the petition, reason dictates that this was not the case. As further indicated, in the week preceding the terminations, Elyar and Webb promoted attendance at the union meeting and spoke with many of Respondent's employees in and around the shop. Following the union meeting all three of them spoke with employees who had not attended the meeting, encouraged them to support the Union, showed certain employees copies of union contracts at other shops, and also solicited union authorization cards. Again, this activity was centered in and around the shop. The General Counsel further points out that in a small facility such as Respondent's, where the entire unit consists of approximately 25 employees, a reasonable inference may be drawn that Respondent would be aware of a union attempt to organize its employees, and that this would be particularly true where the discriminatees advertised the Union to other employees and who, in the case of employee Smith, would admittedly inform Stillings of union activities, as aforestated. Moreover, the close timing between the initiation of the protected activity and the discharges also serves to strengthen the inference of knowledge. It is also noted that Stillings was familiar with past union organizational drives from prior experiences with Respondent, knew that there had been such a drive a year or two earlier, and then on July 26 went so far as to interrogate employee Crombine about possibly union activity I day before the discharges. There can be no serious question but that Stillings had knowledge of the discriminatees' union activities prior to their terminations, and I so find. In the instant case, if this complaint were to be dismissed, I would have to believe and conclude that as a coincidence the three leading advocates and organizers for the Union were all discharged on the same day for varying work-related deficiencies, all within I week of the initiation by them of the organizational drive and the day following the first union meeting, which discharges were also attributable in part because Webb, Elyar, and Webber failed to cooperate or respond in the request to submit their certification cards at the service meeting, and even though Stillings had admittedly made no prior request that they do so. Moreover, Stillings contends that he did not make the decision to discharge the three here involved until after the service meeting. Why, then, as suggested by the General Counsel, did Stillings have termination checks prepared before the service meeting and only for the three discrimi- natees and why did he decide to discharge only three while others may also have passed the tests? I am in agreement with the General Counsel that the answer to these questions lies in the realization that the certification card issue was a pretext for the real reason for discharge - the desire of Respondent to quash the incipient union drive by eliminating its chief protagonists - and such motive 16 See Resp. Exhs. 3 through 9(g). 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD becomes even more apparent upon examination of the alleged work deficiencies of each discriminatee. As indicated, Webb was supposedly discharged because of his limited skills - being able to perform only brake and front-end work. Yet, the record evidence shows that Webb was hired as a brake and front-end mechanic, performed this work on an almost exclusive basis because this was usually the only type of work Respondent assigned him, and performed his work in a fashion which enabled him to receive regular wage increases which Stillings admits were based on his performance; and such also must be viewed in the context of never having received any type of disciplin- ary warning, never having been told that his job was in jeopardy, and a record devoid of any evidence whatsoever that Respondent's brake and front-end work had declined. Respondent contends that Elyar was discharged because he had a lot of comebacks, and because he boasted about getting another job, as aforestated. However, this record reveals that as of 3 days before his discharge Stillings intended to recommend him for a promotion to line mechanic, and that the comebacks relied on by Respon- dent in a 3-month period possibly amounted to a figure below that considered acceptable by Stillings. This, too, must be considered in the context of Elyar's having received no disciplinary warnings, never having been advised that his work performance was other than good, and his having received various wage increases with the last coming shortly prior to his discharge. As to Elyar's alleged "boasting" about getting another job - this record shows that Elyar had filed an application and then mentioned to another employee that he and others were going to see about jobs at Straub's Buick. I suggest that it would be extremely difficult to conclude that such statements and conduct could result in any bona fide basis for discharge, and especially when viewed in context with the other circumstances. Respondent contends that Webber was discharged because of his carelessness in causing shop accidents. However, as has been noted, the only reliable documentary evidence introduced by Respondent showing Webber's carelessness, relates to an accident which occurred months prior to the discharge. Moreover, Webber was never disciplined in any way and was never warned that his job was in jeopardy, but, to the contrary, Webber regularly received weekly production bonuses and, in his 14 months of employment, received four wage increases which were based on his work performance and which, Respondent concedes, represented the most wage increases granted to any employee during such a period. I have found that Webb, Webber, and Elyar were discharged because they joined or assisted Local 355, sought to bargain collectively through representatives of their own choosing, and/or engaged in other concerted activities for the purpose of collective bargaining or mutual aid or protection. On July 26, Crombine, at the request of the discrimina- tees, spoke to Stillings about possible compensation as to the certificates, and in the context of that conversation Stillings admits to asking: "Was there anything else bugging these guys; is there any Union stuff going on?" Crombine then recalls advising Stillings that "there are talks of a union." The questioning by Stillings under these circumstances constitutes unlawful interrogation in viola- tion of Section 8(aX 1) of the Act. The Union challenged the ballot of Gordon Scala (Case 22-RC-6840) on the ground that he is a supervisor within the meaning of the Act. Respondent contends that Scala is a working foreman who does not possess any of the indicia of supervisory status. Since May 1976, Scala has been working in the new- and used-car section of the service department. This section is under the overall direction of Service Manager Stillings. In addition, decisions concerning how extensively individual cars should be repaired are made by the general sales manager. Thus, there are two levels of supervision over the new- and used-car department. Scala testified that after he received an internal repair order made up by the sales manager or the general manager, the repair order would then be logged on a sheet, and after so doing the cardboard copy of the repair order would be put in a rack where the mechanics might either be handed the repair order, or they could take it out the rack themselves. It also appears that the sales department establishes the priority for a particular job, and the day of delivery will usually be specified on the repair order. George Draper, a former employee, testified that if Scala was not at or near his desk a mechanic could simply take a job from the top of the rack. Moreover, Scala testified that the distribution of internal repair orders to the mechanics was often based on the generally known preference of the mechanics. In response to a question whether the distribu- tion of jobs involvesjudgments, Scala stated: "Well, I don't make the judgment. It's just common knowledge among all of us. I know what I can do. He knows what I can do. I know what he can do. It's general knowledge. We work together." As pointed out, this record demonstrates that the routing of internal repair orders is nothing more than a routine function that goes over Scala's desk. Other employees can and do pick up orders from the rack at Scala's desk and, in turn, select the highest priority job or a job that suits their abilities, and the selection process works in an orderly manner even when the mechanics choose their own jobs. In fact, Scala is frequently away from his desk performing other work. As further indicated, Scala testified that only Manager Stillings is responsible for hiring employees, and also credibly testified that he does not interview employees in connection with hiring, has never recommended an employee for hire, nor can he transfer any person, recommend transfers, suspend employees, lay employees off, recall laid-off employees, recommend promotions, nor can he recommend discharges. Scala stated that he never recommended anyone for a raise in the new- and used-car department, and that he does not attend supervisory meetings, and, in conflict to the testimony of Nelson Duncan, denied giving any direct recommendation relative to a pay raise for Duncan. Duncan had testified that Scala told him he had gotten him a raise, but Scala testified that he merely passed the request for a raise from Duncan to the service manager, and said that some time later Tom Lyttle had asked him a question concerning whether anybody needed a raise. Only at that point, when the 28 TOM'S FORD, INC. subject was brought up by the owner, did Scala again mention Duncan's request. Daniel Robertson testified that Scala was called in to ask him some questions before he was hired, but Scala denied that he had ever interviewed anybody for a job. Stillings testified that he had called Robertson back in order to hire him after having checked his references, and at this time Scala happened to be in the area and he then introduced Scala to the newly hired employee. Thus, while admittedly some conversation took place, it has nothing to do with the hiring process. Several witnesses in this proceeding testified that Scala was referred to as "Manager," but, of course, the real issue concerns Scala's duties, and not what other employees might have called him. While Scala does not punch a timeclock, it appears that this past arrangement or practice was continued over into his new position. It is also true that Scala earns more than his coworkers, but this record shows that he has greater skills and more seniority than the other men, and his service commission was a carry over from his former position of a service writer. As further pointed out, Scala does not maintain his own set of tools, but he does use those of his coworkers for a particular job, and since he seldom does protracted mechanical work on any individual car, there is no need for him to have his own set of tools. I find that any recommendations or directions issued by Scala with respect to other employees were routine in nature and did not require the exercise of independent judgment, and further that his powers of directions were limited and as a result Scala was no more than a working foreman who merely transmitted work orders and advice to other employees. Moreover, even assuming, arguendo, that one or two specific instances of supervisory authority have been shown, it is, nevertheless, well established that supervisory authority of a sporadic and irregular nature is insufficient to qualify an employee as a supervisor. IV. THE REMEDY Having found, as set forth above, that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action set forth below designed to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged Steven Elyar, Victor Webb, and Richard Webber, I shall recommend that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to that which they would normally have earned from the date of their discharges, less net earnings, during said period. All backpay provided herein shall be computed, with interest on a quarterly basis, 17 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. in the manner described by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW I. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed by Section 7 of the Act, as detailed herein, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX)(1) of the Act. 4. By unlawfully discharging Steven Elyar, Victor Webb, and Richard Webber, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issued the following recommended: ORDER 7 The Respondent, Tom's Ford, Incorporated, Keyport, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their knowledge of the Union and its organizational activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to the three employees named herein immediate and full reinstatement to their former positions or, if such positions are no longer available, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, discharging if necessary any employ- ees hired to replace them, and make theml whole for any loss of earnings they may have suffered as a result of the unlawful action taken against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business copies of the attached notice marked "Appendix."'8 Copies of said notice, on 18 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 (Continued) 29 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forms provided by the Regional Director for Region 22, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1g The ballots of Elyar, Webb, and Webber were challenged by a Board agent because their names did not appear on the list of eligible voters submitted by the Company. However, since I have found that all three were (d) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that since the representa- tion case (Case 22-RC-6840), was consolidated concerning the issue raised by the challenge to the ballot of Gordon Scala, and my findings of fact and conclusions are set forth above, the challenge be hereby overruled and the ballot of Gordon Scala be opened and counted, and a revised tally issue.19 discriminatorily discharged prior to the election, they too were eligible voters as their reinstatement dates from July 27, 1976. Recommendations made herein on all issues raised by the consolidated cases, shall be submitted directly to the Board. 30