Patrick Plaza Dodge, Inc.

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Patrick Plaza Dodge, Inc. and Local Lodge 598 of the International Association of Machinists and Aeros- pace Workers, AFL-CIO. Case 9-CA-7871 May 23, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On December 28, 1973, Administrative Law Judge Wellington A. Gillis issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief and the General Counsel filed a reply to Respondent's exceptions and a brief in support of the 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER issues, and to engage in oral argument . Subsequent to the close of hearing, a timely brief was filed by counsel for the General Counsel. Upon the entire record in this case , and from my observation of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testimony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Patrick Plaza Dodge, Inc., is a Delaware corporation engaged in the retail sale and service of new and used automobiles and the wholesale distribution of automobile parts and supplies at its Charleston, West Virginia, place of business. During the 12-month period immediately preced- ing the issuance of the complaint, Respondent had a direct inflow of goods and products valued in excess of $50,000, which goods it purchased and caused to be shipped directly in interstate commerce to its Charleston, West Virginia, place of business from points located outside the State of West Virginia. During the same period, the Respondent realized a gross retail sale of products and services in excess of $500,000. The parties admit, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Patrick Plaza Dodge, Inc., Charleston, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Administrative Law Judge: This case was tried before me on September 24 and 25, 1973, at Charleston, West Virginia, and is based upon a charge filed by Local Lodge 598 of the International Association of Machinists and Aerospace Workers, AFL-CIO, hereinaft- er referred to as the Union, on June 29, 1973, upon the complaint, issued on August 22, 1973, by the General Counsel for the National Labor Relations Board, herein- after referred to as the Board, against Patrick Plaza Dodge, Inc., hereinafter referred to as the Respondent or the Company, alleging violations of Section 8(a)(1), (3) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the commission of any unfair labor practices. At the hearing, all parties were represented by counsel, and were afforded full opportunity to examine and cross- examine witnesses, to introduce evidence pertinent to the II. THE LABOR ORGANIZATION INVOLVED Local Lodge 598 of the International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues 1. Whether, in granting certain benefits to its service department employees, on January 23, 1973, the Respon- dent did so in order to discourage union activity in violation of Section 8(a)(1) of the Act. 2. Whether, in discharging employees Carroll Hager, Thomas McDowell, Robert Morris, and David Michael Spangler on January 19, 1973, the Respondent did so for discriminatory reasons in violation of Section 8(a)(3) of the Act. 3. Whether, should the above issues be resolved against the Respondent, such conduct is sufficient to undermine the majority status of the Union, warranting the finding of a Section 8(a)(5) violation and compelling the issuance of a bargaining order. B. Facts In its service department on January 19, 1973, the Respondent, owned and managed by Harold Kearns, employed 22 employees, 9 or 10 of whom were mechanics. Of these, seven were line mechanics or flat rate mechanics who did repair work on customers' cars, one was a used car 210 NLRB No. 141 PATRICK PLAZA DODGE, INC. 871 mechanic, and another was a new car mechanic who prepared new cars for delivery. On Wednesday, January 17, three of Respondent's employees, Carroll Hager, David Spangler, and Clifford Mitchell, drove to Harvey Shreve Ford, a dealer in nearby St. Albans, whose service department employees were on strike. The three mechanics approached the picket line and talked with the pickets, inquiring as to whether they had any union cards. The following morning, Thursday, January 18, as promised, two of the Harvey Shreve employees showed up at the Respondent's facility, entered through the automobile exit door, walked through the shop to the body shop, and asked for Hager. Hager met with the two Harvey Shreve employees in the body shop and procured from them a small supply of union cards. As there were not enough cards, Hager arranged to get more cards from the Harvey Shreve employees during the lunch break that day. Hager, Spangler, and Mitchell signed cards and passed out additional cards which were signed that morning. At noon, Hager, along with four or five other employees, and George Allen, secretary-treasurer of the Respondent, drove to lunch. On the way, Hager pulled up and stopped in front of a parked car behind the K-Mart Shopping Center. Hager got out, walked back to the other car, handed one of the two Harvey Shreve employee occupants the 10 cards that had been signed that morning, and obtained an additional supply of cards from him. Hager put the cards in his pocket, returned to his car, and the group went on to lunch. That Thursday afternoon between I and 5 p.m. back at the shop, the additional cards were passed out by Hager, Spangler, and Mitchell. Some were signed that afternoon, and others returned the following morning, Friday. At lunchtime on Friday, January 19, Hager, Spangler, and Mitchell drove to the South Charles- ton office of James Copenhaver, the union business representative. As Copenhaver was not in, Hager slid an additional five signed cards under the office door. At the end of the workday on Friday, as employee checks were being passed out, six employees were told that they should remain, that Al Billings, Respondent's service manager, wanted to talk with them. Thereafter, one by one, the six service department employees were called into the office and discharged.' Mechanic Carroll Hager, who specialized in automatic transmissions and differentials, and who had been with the Respondent the full 4 years and 7 months since it came into being, was told by Billings that he hated to tell him, but that he had to let him go. In reply to Hager's question, Billings told him that at the time that the factory man was in he had been goofing off too much,2 that he had not been putting out enough, and that on Wednesday he had taken all day on a brake job for Perry Aliff, and that he had spilled his guts to the factory man. Billings told him that i Five of these were alleged in the complaint as dtscnmmatees, namely, Carroll Hager, Thomas McDowell, Robert Lee Moms, David Michael Spangler who goes by his middle name, and Donald Young, all of whom had signed union authorization cards the day before At the close of the General Counsel's case, upon motion of the Respondent, unopposed by the General Counsel, the complaint was amended to delete Donald Young as an alleged discnmmatee. 2 The "factory man" in question, hereinafter alluded to in more detail, is Gill said that he had to let him go. Hager protested that he had to send the rotors out to have them turned and that that was why it took so long on the brake job. Billings said that Hager still took too long on the job. Ten days later, on Monday evening, January 29, Kearns called Hager and offered him his job back. Hager, the only discriminatee recalled, went back to work on Thursday, February 1. Michael Spangler, a mechanic who, like Hager, specializ- ed in transmission and differentials, and who had been employed by the Respondent continuously since 1969, when called into the office, was also told by Billings that he hated to tell him, but that he was terminated. When Spangler asked why, Billings told him "You haven't been punching a time clock and you haven't been putting out enough work." Spangler thanked Billings and left. Thomas McDowell, who had been with the Company since November 1971, and was employed as the service salesman and work dispatcher, followed Spangler into Billings' office. Billings told McDowell he would have to let him go, that the mechanics had spilled their guts to the factory analyzer and had told him that he (McDowell) was not getting their work out right, was not assigning the work right, and was making too many mistakes on the factory warranty claims. Robert Morris, the new car mechanic who prepares new cars for customers, when called in was told by Billings that he had some bad news for him. When Morris indicated that he had figured it out, Billings said he was sorry, he did not know why and had no reason for it, that he knew that Morris had always done his job, but that he had been told to terminate him, and that there was nothing else he could do. Morris told Billings that if he had to do it, he had to do it, and that he had no hard feelings toward him.3 The following Tuesday, January 23, the Respondent, by printed notice, announced to its employees that effective January 25, it was increasing the hourly rate of mechanics' pay, paying all uniform rentals, increasing paid vacations from 1 week to 2 weeks, and providing tool insurance coverage on mechanics' tools. On this same date, January 23, having in his possession 15 signed union cards that had been turned over to him by Hager and Spangler, Business Representative Copenhaver met with a number of the Respondent's employees, and discussed the company's termination of six employees that had occurred the Friday before. By letter dated January 29, the Union advised the Company that it represented a majority of its service department employees, offered to submit proof of its majority status upon request, asked that the Company recognize and bargain with it on behalf of its employees, and sought an early date for negotiations. As of the date of the instant hearing, the Union had received no response from the Respondent. Bruce Gill, a Chrysler service analyst, who made an appraisal of the Respondent's operations on Tuesday, Wednesday. and Thursday of the week in question 3 The above findings as to the discharge conversations are based upon the unrefuted testimony of each of the dtscnmmatees. Billings, the only company official charged with the responsibility of apprising the employees of their terminations, was called by the Respondent on surrebuttal only and testified on a very limited rebuttal matter unrelated to these conversations. $72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ANALYSIS AND CONCLUSIONS It is most difficult to even determine Kearns' version of the entire matter, except for the fact that, in order to borrow money to bring up the capitalization of the dealership, he had been told by Chrysler Motor Corpora- tion that he would have to make changes in his operation, that early in 1972 he had requested a service review team to come in and tell him what was wrong, and that, finally, on January 16, 1973, Bruce Gill arrived on the scene for such purpose, and left at the end of the workday on January 18. Other than the fact that Gill talked with a few of the employees, including Hager, there is no evidence as to specifically what he did during this period, what the results were, or to what extent, if any, he discussed personalities with Kearns. The testimony of Kearns is contradictory on this.6 At various points, Kearns testified that he made the decision to discharge the employees several months before January 19, toward the end of December, a week before Gill arrived, and later, after Gill arrived and during a discussion with Gill on Thursday morning before he (Kearns) left on a business trip to Akron. In any event, Kearns did leave Thursday noon, accompanied by Caron Lopinsky, his new car manager, apparently without saying anything to anybody or leaving any instructions concern- ing the employees. The following Friday morning, at 8:30 a.m., according to Kearns, he telephoned George Allen, his secretary-treasurer and head of the office, and told him to hold the payroll, that he was going to have to make some changes. Kearns then told Allen who was to be discharged, apparently instructing him to apprise Billings of the decision and of the names of employees to be terminated. Kearns, when asked by counsel on the stand as to whether he had discussed these terminations with Billings, testified only that "It had been discussed actually for the previous 3 months ... . While Kearns vacillated all over the place in attempting to answer direct questions as to why each man was fired, his explanations differed in many instances with the reasons given the employees by Billings. In the case of Hager, Billings had told him that he was discharged because he had not been putting out enough, that he had taken too long on a brake job that Wednesday, and that he had spilled his guts to Gill. Kearns, on the other hand, testified that he had made the decision to terminate Hager long before Gill's visit. While it is true, by Hager's own admission, that during the prior couple of months he had not been producing as he should and that there had been a loosening up in the work habits of the shop employees generally, the fact remains that Hager, along with Spangler, were the two top producers in the shop and that during the 10-day period that Hager was discharged, transmission work apparently was being sent out. As to Spangler, in addition to telling him that he had not been punching the timeclock, Billings told Spangler that he was being terminated because he had not been putting out enough work. Kearns, on the other hand, testified that the complaint allegations . Thus, Kearns was the only witness to testify for the Respondent's case-in-chief 6 While, as hereinafter noted, Kearns testified at one point or another as to his alleged reasons for terminating each of the discrimmatees, with one minor exception, there is no indication that the specifics as to each man was discussed with or by Gill that morning, or any other time The General Counsel contends that the Respondent became aware of the union activity among his employees, and, in order to discourage and undermine this union activity, discharged the four discriminatees and granted increased benefits to its remaining service department employees. The General Counsel further contends that in view of the fact that the Union clearly represented a majority of Respondent's service department employees on January 19, by the totality of such conduct the Respondent violated Section 8(a)(5) of the Act negating the possibility of a fair election and warranting the issuance of a bargaining order. Counsel for the Respondent, in denying the complaint allegations and pleading a lack of company knowledge of union activity prior to January 29, asserts "the termina- tions were based on observation and study over a substantial period of time, and the thing that brought them about was a visit from the service representative from Chrysler Motor Corporation . . ., that because of ineffi- ciencies and problems which (were) pointed out by the service representative, the discharges were then made." 4 Before discussing what I consider to be the crux of the entire case, it is factually undisputed, and the record is clear, that there is no direct evidence of company knowledge of the union activities or sentiments of the alleged discriminatees, or independent evidence of union animus on the part of the Respondent. It is also apparent, and I find, that the Respondent is, and in fact during most of its entire existence has been , undercapitalized, ineffi- ciently managed, and in a very poor, if not crucial, financial condition. Thus, but for the timing of the events involved, it would appear that these facts alone establish a failure on the part of the General Counsel to make out a prima facie case. For reasons hereinafter expressed, however, I find not only that such is not the case, but, moreover, that the Respondent has failed in its burden to rebut. The Respondent's case, in my opinion, falls on the testimony of one man, Harold Kearns, president and general manager.5 Kearns is the one person responsible for the overall operations of the Company, the one person responsible for the decision to make the employee terminations, and the one person to whom one should be able to look for an explanation of the Respondent's actions herein. Unfortunately, the entire testimony of Kearns, contained on some 70 transcript pages, is most confusing, contradictory, and of little probative value. Kearns, often failing to heed instructions of both counsel and of the Administrative Law Judge, throughout seemed bent upon emphasizing the poor financial condition of his Company, and was continually evasive in answering questions, particularly when pressed on crucial matters concerning the timing of, and explanation for, the discharges. 4 Counsel for the Respondent at no time alluded to the benefits' allegation or the Respondent 's refusal to recognize the Union. S Bruce Gill, the Chrysler service analyst who allegedly played a major part in the determination, and company official, George Allen, rode in the car with the union adherents during the noon hour at which union cards wre exchanged, were not called as witnesses, and did not testify As noted w W. Al Bilheg., although called on rebuttal, did not testify as to any of PATRICK PLAZA DODGE, INC. 873 Spangler was discharged not because he was unproductive, but rather because Spangler was going to leave shortly anyway to go into his own business. As to Morris, Kearns testified that he was discharged because the Company had had numerous complaints involving small adjustments of customers' cars, and because there might have been a problem bonding him. The inconsistency here is found in the fact that Billings, in discharging Morris, told him he did not know why he was being discharged, and, corroborative of Morris who testified that he had never had any complaints about his work, that he knew that Morris had always done his job. As to a potential bonding problem, the problem in Morris being bonded, whatever it might have been, had been noted on his employment application when he was hired by the Respondent on a previous occasion, and the Respondent rehired him in 1971 with knowledge that there might be this bonding problem. Finally, as to McDowell, whose job it was to write orders on repair work for customers' cars and to assign work to the mechanics, Billings told him that the reason for his termination was because the mechanics had spilled their guts to Gill, telling Gill that he was not assigning their work right and was making too many mistakes on the factory warranty claims. The Respondent adduced no evidence to refute McDowell's testimony that he had received no complaints concerning the assignment of work. Kearns testified at length, however, concerning the tremendous losses in the thousands of dollars which the Company had been sustaining over many months due to warranty claims not being honored by Chrysler.? The main reason advanced by Kearns for such losses was that the Company could not supply proof to Chrysler of its having performed the work. While, as it turned out, there is no question but that the Respondent had a very big problem in this regard, one apparently involving a rather extensive practice of falsifying such claims,8 Kearns testified only that McDowell was discharged because his work was unsatisfactory. Yet, as testified to by McDowell, at no time during the entire year of 1972 did anyone advise McDowell that he was improperly filling out warranty forms or that the Company was losing money because of it. And, notwithstanding these tremendous losses, which were admittedly jeopardizing his dealership, Kearns, in answer- ing counsel's question as to whether McDowell had been spoken to about this, testified only that "I suppose he was told that they had to be done better, to be done right ...... and admitted that he had not spoken to McDowell, that he "had no reason to." Thus, all four of these service department employees were discharged on January 19, with no real prior warnings of dissatisfaction on the part of management or advanced notice or indication that such was to happen, and notwithstanding the assertion of Kearns at one point in his testimony that his decision to fire them had been made months before. 7 In this regard, warranty work on customers ' cars is performed by the Respondent's mechanics, the latter being paid for their work by the Company, and the Company, in turn, filing its warranty claim with Chrysler seeking authorization and reimbursement. B This appeared to have come as a surprise to Kearns at the hearing. 9 1 specifically discredit Kearns as to his denials of discriminatory conduct with respect to these discriminatees , and generally discredit him to I am of the opinion, and so find, that, under all of these circumstances, and particularly Kearns' inconsistent, contradictory, and inherently implausible explanation for its decision to terminate each of the four discriminatees, the Respondent's avowed reasons were pretextual.9 Having so found, I further find that an inference is warranted that the discharges of all four were motivated by their union activity. While fully cognizant of the fact that there exists no direct evidence of the Company's knowledge as to their union activity, it is well established that the element of knowledge may be proved by circumstantial evidence from which a reasonable inference may be drawn . Here, all four employees signed union authorization cards on January 18, the day before their discharge. Two of these, Hager and Spangler, were the primary organizers responsible for securing the union cards and for obtaining signatures of 15 of the 21 shop employees. The union activity for the most part, including the initial delivery of union cards by Harvey Shreve pickets and the distribution and signing of these cards, was carried on in the Respondent's shop during work hours on January 18.i0 It would also appear highly unlikely that Allen, the company official riding to lunch with the employee union adherents on January 18, did not become inquisitive as to why Hager parked the car momentarily behind the K-Mart Shopping Center, got out, approached another parked car, and returned to drive on to lunch. Notwithstanding Hager's testimony that there was no union discussion during lunch and that to his knowledge Allen was not aware of what was happening, I find the latter hard to believe. Finally, during Gill's conversation with Hager, Spangler, and a third employee, on Wednesday, January 17, concerning shop conditions and problems , one of the employees apprised Gill that Harvey Shreve's men were out on strike and ventured the opinion that employees of other auto dealers in town want union shops. All of the above constitute avenues by which the Respondent could well have learned of the union activity of its employees. These factors, coupled with the pretextual reasons for discharge advanced by the Respondent, warrants an inference of company knowledge of such activities." While the union activity of Morris and McDowell appears to have been confined to their signing union cards, the fact that they signed cards the same day as did Hager and Spangler, the two union leaders, and were discharged for pretextual reasons at the same time as Hager and Spangler were terminated for pretextual reasons, justifies the imputation of knowledge of their union sympathies.12 In light of the entire set of circumstances surrounding the discharge of these four employees, and notwithstanding the lack of independent evidence of union animus , I find that such animus did in fact exist and supplied the unlawful motivation giving rise to the Respondent's decision to terminate . Accordingly, I find, as alleged in the complaint, the extent that his testimony is at variance with other of my findings herein. 10 Hager's testimony to the effect that he was careful not to be observed by management does not alter the fact that this was a small shop and that the possibility existed that he and others could have been seen. ti See N L.R.B. v. Wal-Mart Stores, Inc., 488 F.2d 114 (C.A. 8, 1973). enfg. 201 NLRB 250, and cases cited therein. 12 McElrath Poultry Company, Inc., 206 NLRB No. 94. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, on January 19, 1973, the Respondent discriminatorily discharged Carroll Hager, Thomas McDowell, Robert Lee Morris, and David Spangler, in violation of Section 8(a)(3) and (1) of the Act. That the Respondent, having rid itself of 5 of the 15 union card signers in his service department,13 took additional steps to further discourage union activity among its employees is revealed, I find, by the fact that on January 23, the second workday after the terminations, Kearns announced several increased employee benefits. In addition to increasing the hourly rate of mechanics' customers labor and warranty labor, the Respondent announced that the Company would pay all uniform rental costs (in the past it had paid one half of the uniform rental expenses), that it was increasing annual paid vacations from I to 2 weeks, and that it would provide tool insurance coverage on mechanics' tools. The Respondent's position on this announcement, as asserted by Kearns' confusing testimony pertaining there- to, is that the decision to make these changes in benefits had been made the prior December, at the same time that a decision was made to eliminate the weekly $185 guaran- teed wage for mechanics. Kearns, however, advanced no credible reason for not announcing these benefit changes on January 2 at which time he did announce the Respondent's decision to eliminate the weekly guarantee. Had, in fact, the decision been made at the time asserted by Kearns, it would seem logical that he would have made the increased benefits known at the same time he was deleting another. Further, the fact that the Respondent had in fact provided tool insurance coverage since 1971, and chose to list it as an additional increase in benefits along with the others, would tend to support the General Counsel's contention that the January 23 announcement in this regard was intended to further discourage union activity on the part of the service department employees. In the absence of any evidence, other than Kearns' self- serving and less than credible testimony, to support the assertion that the decision to make such changes had been made much earlier, I find that, in announcing the increased employee benefits on January 23, the Respondent did so for the unlawful purpose of discouraging union activity in the shop, and that by such conduct the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. Turning to the refusal to bargain allegation of the complaint, and the General Counsel's assertion that the Respondent's total conduct herein warrants the issuance of a bargaining order, a brief resume of the pertinent facts reveals that, on January 17, 1973, at the commencement of the Union's organizing efforts, the Respondent employed 22 employees in its service department,14 and that by noon on January 19, 15 of these employees had signed union authorization cards authorizing the Union to act as their collective-bargaining agent. Thus, at this point the Union represented a clear majority of `Respondent's employees in the appropriate unit.15 By close of business on this same date, January 19, the Respondent had fired five of the card signers. Thereafter, on Janiiiit^y 29, the Union asserted its majority status and requested that the Respondent recog- nize the Union and bargain with it on behalf of its employees. At no time has the Respondent replied to the Union's demand, nor does the record reflect the Respondent's reason for refusing to recognize the Union or to engage in bargaining. In fact, the refusal to bargain matter was not even alluded to during the hearing by the Respondent. I find, consistent with the assertion of the General Counsel, that the circumstances present in this case warrant an order requiring the Respondent to bargain with the Union notwithstanding that no representation election has been conducted.16 By discriminatorily discharging the four discriminatees on January 19 and granting the increased benefits to the remaining shop employees on January 23, I find that the Respondent engaged in conduct designed to undermine the majority status which the Union had on January 19. Thus, it is concluded that, by refusing the Union's bargaining demand and engaging in such unfair labor practice conduct, the Respondent violated Section 8(a)(5) and (1) of the Act, and, as such conduct has negated the possibility of conducting a fair election among Respondent's employees, that a bargaining order is necessary and appropriate to protect the majority selection of the Union and otherwise to remedy the violations committed. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: 17 CONCLUSIONS OF LAW 1. Patrick Plaza Dodge, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Lodge 598 of the International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By granting benefits to its service department employees in order to discourage union activity and membership, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Carroll Hager, Thomas McDowell, Robert Lee Morris, and David M. Spangler, thereby discouraging membership in and activity on behalf of a labor organiza- tion, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. All service department employees at the Respon- 13 In addition to the four discnmmatees herein , a fifth card signer, Donald Young, was also terminated on this date. 14 1 find, as alleged, that all service department employees at Respon- dent's Charleston, West Virginia, facility, excluding office clerical employ- ees, salesmen, and professional employees, guards and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 15 The Respondent does not attack the authenticity of any of these cards, and does not deny that the Union represented a majority of its employees 16 N L. R. B v Gissel Packing Co., 395 U S. 575 ( 1969). 11 Consistent with my findings herein , I hereby deny the Respondent's motion to dismiss the complaint made at the close of the Respondent 's case- in-chief PATRICK PLAZA DODGE, INC. 875 dent's Charleston, West Virginia, facility, excluding office clerical employees, salesmen, and professional employees, guards, and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 6. Since January 19, 1973, the Union has been, and is now, the exclusive representative of all employees in the appropriate unit within the meaning of Section 9(a) of the Act. 7. By failing and refusing, at all times since January 29, 1973, to bargain collectively with the Union as the exclusive representative of the employees in the appropri- ate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act IV. THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. It having been found that the Respondent discriminato- rily discharged Thomas McDowell, Robert Lee Morris, and David M. Spangler on January 19, 1973, thereby violating Section 8(a)(3) and (1) of the Act, it is recom- mended that the Respondent offer the above-named individuals immediate and full reinstatement to their formerjobs, or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to any rights and privileges to which they are entitled, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, by making payment to them of a sum of money equal to the amount they would have earned from the earliest date of the discrimination to the date of the offer of reinstatement, less net earnings during said period to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and including the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. It having been found that the Respondent discriminatorily discharged Carroll Hager on is 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 January 19, 1973, thereby violating Section 8(a)(3) and (I) of the Act, and thereafter offered him reinstatement to his old job on January 29, 1973, it is recommended that the Respondent make him whole for any loss of pay he may have suffered by reason of the discrimination against him during this period, in the manner described above. In this regard, it is further recommended that the Respondent preserve, and upon request, make available to the Board or its agents for examination and copying, all payroll records and reports, timecards, and all other records necessary to compute the amount of backpay. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 18 Respondent, Patrick Plaza Dodge, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Granting benefits to its service department employees in order to discourage union activity and membership in violation of Section 8(a)(1) of the Act. (b) Discouraging membership in, and activity on behalf of, Local Lodge 598 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by discharging or refusing to reinstate any of its employees, or in any like manner discriminating in regard to the hire or tenure of employ- ment, or any term or condition of employment, in violation of Section 8(a)(3) and (1) of the Act. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. (d) Refusing to bargain collectively with Local Lodge 598 of the International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of all employees in the appropriate unit described above in violation of Section 8(a)(5) and (1) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Thomas McDowell, Robert Lee Morris, and David M. Spangler immediate and full reinstatement to their former jobs, or if their jobs no longer exist, to substantially equivalent positions without prejudice to any rights and privileges to which they are entitled, and make them and Carroll Hager whole, in the manner and according to the method set forth in the section 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 and reports, timecards, and all other records necessary to compute the amount of backpay due under the terms of this recommended Order. (c) Upon request, bargain collectively with Local Lodge 598 of the International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive represent- 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. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ative of the employees in the appropriate unit, and embody in a signed agreement any understanding reached. (d) Post in conspicuous places at its Charleston, West Virginia, facility, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 19 Copies of the notice, on forms provided by the Regional Director for Region 9, shall, after being duly signed by an authorized representa- tive of the Respondent, be posted by it, as aforesaid, immediately upon receipt thereof, and maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 19 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT grant benefits to our service depart- ment employees in order to discourage union activity and membership. WE WILL NOT discharge or refuse to reinstate, or otherwise discriminate against, our employees in order to discourage membership in, or support of, Local Lodge 598 of the International Association of Machin- ists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WILL NOT in any like manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights. WE WILL NOT refuse to bargain collectively with the Union as the exclusive bargaining representative of our employees. WE WILL offer Thomas McDowell, Robert Lee Morris, and David M. Spangler, immediate and full reinstatement to their former jobs, or if their jobs no longer exist, to substantially equivalent positions without prejudice to any rights or privileges to which they may be entitled, and will make them and Carroll Hager whole, for any loss of pay they may have suffered by reason of our discrimination against them. WE WILL, upon request, bargain collectively with Local Lodge 598 of the International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of our employees in the appropriate unit, and put into a signed agreement any understanding reached. The appropriate unit should consist of All service department employees of Patrick Plaza Dodge, Inc., at its Charleston, West Virginia location, excluding office clerical em- ployees, salesmen, and professional employees, guards and supervisors as defined in the Act. All our employees are free to become or remain or refrain from becoming or remaining members of Local Lodge 598 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. Dated By PATRICK PLAZA DODGE, INC. (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 concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, Suite 3003, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.