Suburban AMC/Jeep, Inc.

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Suburban AMC/Jeep, Inc.' and John L. Boyle. Case 17-CA-5755 June 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 31, 1974, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt her 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 Respondent, Surburban AMC/Jeep, Inc., Raytown, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The name of the Respondent appears as amended at the hearing. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.) hereinafter referred to as the Act. Based on charges filed on September 6 and amended October 16, 1973,1 a complaint issued on October 26, amended October 29, presenting allegations that Suburban AMC/Jeep, Inc.,2 hereinafter referred to as the Respondent, committed unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. The Respondent filed i Unless otherwise indicated all dates are in 1973. 2 The name of the Employer appears as amended at the hearing At the hearing the General Counsel stipulated to the deletion of the name of John Ferrell, from sec. 3 of the complaint and the Respondent an answer denying that it committed the violations of the Act alleged.3 Upon due notice the case was tried before me at Kansas City, Kansas, on November 29. Representatives of all parties were present and participated in the hearing. Based on the entire- record, including my observation of witnesses, and after due consideration of briefs, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent , a Delaware corporation with its principal offices and place of business located in Raytown, Missouri, is engaged in the operation of an automobile dealership involving the retail sale and service of new cars. In the conduct of this business operation, the Respondent's gross volume exceeds $500,000 per annum, in the course of which Respondent annually purchases goods and services having a value in excess of $50 ,000 directly from firms or sources located outside the State of Missouri. I find that Respondent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Whether employees ceased work and/or engaged in a walkout. 2. Whether they were constructively discharged for engaging in protected concerted activity. 3. Whether Respondent threatened employees with reprisals including discharge and blacklisting for engaging in concerted activity; refused reinstatement to an employee because of his part in the concerted activity; and/or conditioned reinstatement upon agreement to refrain from engaging in concerted activity. B. Background It was Respondent's practice to deduct from the pay of any employee who had an accident involving a customer's vehicle and/or Respondent's property the cost of any damages up to the amount of the deductable on Respon- dent's liability insurance coverage. This practice came to the specific attention of the mechanics and bodyshop employees when, after such an accident damaging both company and customer property, bodyman Steve Outlaw complained to fellow employees about the deductions being made from his paychecks. As a result of these discussions among the shop employees, mechanic John L. Boyle was designated their spokesman to arrange a meeting and raise the matter with management. On August amended its answer to admit the allegations of secs . 1, 2, and 3 of the complaint with the deletion. The complaint was further amended to add the allegation that Respondent violated Sec. 8(ax1) by threatening to blacklist an employee because of his participation in concerted activity. 211 NLRB No. 52 SUBURBAN AMC/JEEP 455 1, Boyle, with the approval of Service Manager Bill J. Patrick, arranged for a meeting4 between employees and Respondent's president, Ernest Yanta. At the meeting held in Yanta's office, employees present were invited individually, either by Yanta or Boyle, to state their grievances. Robert Calton spoke first and, in turn, each employee present voiced his objections to this practice of charging the insurance deductable to the employee involved in the accident. When Yanta told the men he would discuss the matter with the AMC zone manager and let them know the results in a few days, employees objected, insisting that they receive a prompt answer in view of the ever present danger of their incurring such a liability in the interim. Yanta then promised to have an answer later that day. Employees returned to the shop and, after a short period, were again summoned to Yanta's office. Yanta was not present. Management was represented by Patrick and Corporate Secretary-Treasurer Deloris A. Souders. Em- ployees were advised that the Company would establish a fund to pay for the losses formerly borne by the employee involved in an accident, unless there was negligence, either attributed to the employee by Patrick or presumed after three such accidents, in which event the employee would be charged as before. With respect to deductions previous- ly withheld from employees' pay for this purpose, it was specifically stated that the money would be refunded to Robert Calton and Royce Allen immediately. Employees understood that, because the amount involved was substantial, Steve Outlaw would have to be reimbursed on an installment basis until money had accumulated in the fund.5 Nobody mentioned employees Mike Patrick or Les Rowe who also had been charged for accidents, but who were in different job classifications from those of the employees present at the meetings III. THE CONDUCT INVOLVED On Thursday morning, August 16, Rowe came to Outlaw and reported that Yanta said they were not going to receive a refund of accident money which had been withheld from their pay. Outlaw, Rowe, and Mike Patrick went to see Yanta and asked him for the reason. His reply was "the plan was for, from that day forward, and if you don't like it you can lump it " Their reports of this encounter brought about further discussions among employees, some of whom felt that Yanta had reneged on their agreement. At the coffeebreak, the men gathered in Boyle's "stall," where they discussed what they should do about this latest development. They decided upon another meeting with Yanta 7 and one was later arranged by Calton through Yanta's secretary.8 Word was then spread among employees that the meeting would be at 1:30 that afternoon. No one of the employees was designated as spokesman for the meeting. Again there were repeated messages of delay, and the men began getting upset. In view of these delays, somebody suggested that they should all quit work and wait for the meeting. There is no indication who made this suggestion or to whom it was made. However, as some of the men finished the job assignment being performed, they locked up their tools and waited for the meeting.9 Around 3:30 the men were notified that Yanta would see them. The men entered Yanta's office and sat down. Yanta 4 The testimony of the employees indicates that, although the meeting was scheduled for 2 p.m., because of Mr. Yanta's preoccupation with other meetings, Patrick periodically relayed to the men messages of delay until about 3 :30 when the meeting was actually held. In this respect, Patrick testified he repeatedly attempted to "set up" such meeting, but because Yanta was still in another meeting he came back to the shop to tell the men he would keep trying, and that he went a second and a third time to the office until he finally succeeded . As I credit Boyle's testimony that he arranged the meeting, I interpret Patrick's testimony as having reference to the delay in its convening . In any event, it appears that some of the employees were of the impression that they were not being accorded appropriate consideration. 5 Credited testimony indicates that Outlaw replied it was alright with him to receive his money in the manner the Company deducted it from his check, i.e., $25 at a time. Patrick testified that when Outlaw asked about his refund, Patrick asked Souders, who said "we'll have to build up a fund." Patrick then told Outlaw that he could not answer Outlaw because the matter would have to be taken up at a later date. Patrick explained that as far as he was concerned he was talking about "from this day forward" and did not promise Outlaw a refund, but he did not rule out the possibility that Outlaw would be paid back the money deducted because he did not have that authority. Souders, on the other hand, testified that when Outlaw asked about his money "we told him that that would have to be discussed at a later date. That decision would have to be made by Mr . Yanta." Yanta testified that they did agree to repay Calton and Allen immediately but had not agreed to reimburse Outlaw. However, it is noted that Yanta did not attend that part of the meeting in which employees received management's reply to their grievance presentation, and therefore could not testify as to what employees were told. Patrick's "from this day forward" limitation is consistent with what Yanta told employees Outlaw, Mike Patrick , and Rowe on August 16 and with the notice posted at the timeclock on August 17, but is inconsistent with the immediate reimbursement of Calton and Allen which , admittedly, was not only agreed to but was accomplished before the events of August 16. Similarly Souders' testimony that employees were told the decision on Outlaw's entitlement to a refund would have to be made by Yanta-testi- mony which is not corroborated by any other witness-is inconsistent with the events that followed and the record evidence generally. In this respect, I deem it significant that it was Outlaw's complaints that brought about much of the discussions among the employees and the resulting meeting with management. The proposal was presented as one which management believed was a solution to the problem the employees had raised. Such a deferment of the central grievance being considered , if indeed it were stated, would hardly have gone unnoticed by the employees. Although Souders personally may have held this mental reservation in dealing with Outlaw's inquiry, I find, on all the evidence, that it was not voiced to the employees, and that, from the statements made by management representa- tives, they carried from the meeting the impression that Outlaw would be reimbursed later on an installment basis. That Respondent may have later decided to balance an alleged overpayment to Outlaw against his refund is immaterial. B Patrick, son of the service manager, worked as a parts and delivery boy, and Rowe was the porterjanitor. 7 Among the suggested actions was one that they call in a union, but there is no evidence that Respondent had any knowledge of this proposal. 8 Boyle stated he would attend a meeting of employees with Yanta but would not arrange it or be their spokesman . Thomas Comstock first attempted to arrange the meeting, but when he failed he turned the matter over to Calton. Patrick testified that he was bypassed in that he was not asked by the men to arrange this meeting . I credit Comstock's testimony that he first went to Patrick, told him the nature of the problem, and asked Patrick to arrange a meeting and that Patrick told him he would have to do it himself as he (Patrick) was washing his hands of it. 9 Patrick did not indicate that the men stopped work or that he made any attempt to assign work to the men who had completed their work and put away their tools. On the contrary, he testified he was engaged in installing a headlight which he had to turn over'to another when he was called to the meeting. The record also fails to indicate whether the packing of tools occurred near the men's quitting time. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD immediately launched into a forceful statement of his position, "hollering and yelling" 10 words to the effect that he knew what they were there for; this was his business; he was going to run it in his way ; he would not have a "bunch of God damn mechanics" telling him how to run his business; he was the one who paid the bills, and if they did not like it they could get out. Boyle interrupted to tell Yanta that nobody was trying to tell him how to run the business." Yanta insisted, "yes you are, and I am God damn mad . This is my business ." He then told employees that they "could either quit bitching or get ... out," saying, "I'll run my business the way I want to run my business and if you don't like it you can get . . . out. You can get out right now . You have 30 minutes to get out, or I'll roll your . . . tools out in the street." Boyle stood up and said, "Well, do you have my check ready?" The rest of the men also stood up. Yanta told them to turn in their time and he would have their checks ready in 30 minutes. Yanta testified that he was irritated at the first meeting but did give each employee an opportunity to speak. He also admitted being angry at the meeting of August 16 because he felt the men were being unfair. He then related that after he had agreed to this meeting, but was delayed by another matter, John Farrell (variously identified as sales manager or assistant service manager) came in and told him the men had their toolboxes locked up and were not working, and this angered him. Yanta testified that he did not then, in fact, know why the men had sought the meeting; that he did not make any inquiry about this; that he commenced the meeting and did all the talking ; that he did use the colorful and forceful language attributed to him; and that he did generally state what the other witnesses had testified to. Yanta asserted, however, that he gave the men the choice of staying or leaving.12 The men went to the timeclock and turned in their cards, then returned to the shop and loaded their tools .13 Souders made out their checks. When Patrick gave the men their pay, he told them to leave their phone numbers with him and that if the men would give him a couple of days he could cool Yanta down and everybody could go back to work. 10 This characterization is that of employee witnesses . Souders testified she was not present at the meeting but heard Yanta through the office walls She did not hear anyone else speak. i i Although Boyle was not designated the employee spokesman, he was the only one other than Yanta who spoke at the meeting There is testimony that when Yanta began speaking he looked directly at Boyle . According to Patrick's testimony, Boyle was the first to speak and stated he wanted Calton to tell his side, when Yanta "got upset and jumped up" and commenced his forceful statement related by other witnesses herein . Patrick admittedly was late in arriving at the meeting . It would appear that Patrick has confused Boyle's role in the meeting of August 1 with that in the meeting of August 16 12 Other credited testimony indicates that , although Yanta stated it as a choice in the first instance, he never really gave employees a chance to exercise that choice, as he permitted little interruption Thus, although he did not say in so many words, "you're fired," this was the understanding the employees garnered from his threat to throw their tools into the street. i3 Mechanics employed by Respondent on August 16 were Boyle, McBee, Comstock, Calton, Paul Strylie, and Arnold Watson. Watson was not present at this meeting and Strylie did not turn in his time Bodyshop employees present were Outlaw and an employee identified only as Mike. Mike did not turn in his time . Calton and Outlaw did not return to their jobs. There is no indication that Outlaw sought to return. 14 Patrick testified that it was on Monday that Boyle brought in his The following morning (Friday, August 17) at about 8:30, according to Boyle, he came into the shop and spoke to Patrick, asking whether the men were going to get their jobs back. Patrick told Boyle that Yanta was not going to hire anybody back. Boyle said, "o.k.," turned in his uniform and left.14 Boyle stated he returned to the shop again on Monday, August 20. At that time no work was being performed and there were no employees in the shop. Patrick indicated he would inquire of his brother-in-law for a job for Boyle. Boyle further testified that he returned to the shop later that week seeking employment but was told by Patrick there was no more room in the shop for him.15 At that time, Patrick sent Boyle to see the service manager at a Chevrolet dealer for a job.16 Meanwhile, on Friday, August 17, at about 9 a.m., McBee came to the shop and had a conversation with Patrick who, after various inquiries and comments, asked if he would come back to work. McBee, who had already obtained other employment, responded that he was willing to but wanted to speak to Yanta first. Patrick summoned Yanta who told McBee, "You don't have to leave. That guy up there (gesturing toward Boyle' s stall) is causing the trouble." McBee told Yanta it was not Boyle but Comstock and Calton who "got the meeting up." Yanta stated he thought it was Boyle. It was agreed that McBee would report to his job with all rights and conditions restored on Tuesday, August 21, after his normal Monday off. Around 9:30 a.m. Monday, Calton went to the shop and spoke with Patrick who asked Calton if he wished to return to work. Calton replied that he would but wanted to speak to Yanta about it. Yanta came by and Patrick told him Calton wished to return to work. Yanta replied, "It would be the same old ..." and walked away. Comstock came into the sales office on Monday evening for the purpose of seeking his job. With respect to the conversation which took place between him and Yanta in the presence of Farrell, Comstock testified as follows: Mr. Yanta started out giving me a talk that he didn't want troublemakers around there and he didn't want anybody that was going to stir up trouble, and Larry Boyle was trying to get his job and he would not hire uniform and asked, "[I is Mr. Yanta hiring back any of the employees that walked out?" and that he told Boyle he had orders from Yanta that the men would have to see Yanta first. I accept Boyle's dating of these events rather than Patrick's. It is noted that Patrick 's version would omit the visit by Boyle at which time Patrick offered to make inquiries of his brother -in-law for a job for Boyle. Patrick did not deny that this occurred Further. I do not credit Patrick's testimony; he told Boyle that the men had to see Yanta first before they could be rehired. It appears from credited testimony that rehired employees who saw Patrick and were offered their jobs were the ones who requested to talk to Yanta first. is Patrick testified that later in the week Boyle came in to have some warranty work done on his car, but Patrick was occupied telling the customers there was a walkout and that he could not handle anything except emergencies. On further examination, Patrick fixed this as having occurred on Wednesday, August 22, and testified that Boyle did not ask for his job back, but instead asked whether Patrick needed a mechanic and Patrick told Boyle he had a full crew. 16 Patrick testified that he received a call from this individual inquiring for a mechanic and he replied he knew a real good one The job available was for a used car mechanic and during his interview with that employer it was agreed that Boyle should not be employed in the job because he was a new car and line mechanic and would not remain if an opening in his regular line of work occurred. SUBURBAN AMC/JEEP 457 him back because he was a troublemaker and he would fix it so Larry Boyle would not work for another AMC dealer in ICansi s City. I told him-he said something about Larry being a ring leader of the trouble there. I told him Larry was not the ring leader and if he would hire me back I would not give him any trouble and he said that is fine, come back in the morning. Comstock returned to work on Tuesday, August 21.17 He further testified that other shop employees on duty Tuesday were McBee, Strylie and Watson, and that Respondent did not have a full crew of mechanics but did fill the remaining vacancies within a week.18 Yanta testified that Boyle never came to him to ask for his job back. In this connection Yanta stated, however, that there were quite a few things he would have wanted to talk with Boyle about before he would have taken Boyle back but he did not think there would have been a problem. Yanta did not directly deny that he did not want to take Boyle , back because he considered Boyle a troublemaker. Yanta denied he told Comstock he considered Boyle a troublemaker but did not deny he made the comments testified to by McBee. Yanta also denied he ever told anybody he would see to it that Boyle would never get a job at any other AMC dealer. He testified that he heard this rumor later and denied that this was true. When asked whether he told Comstock he would be hired back if he (Comstock) would agree not to be a troublemaker, Yanta answered, "I suspect I did, yes." Testimony of both Yanta and Patrick, as well as other record evidence, indicates that Boyle was regarded as a mechanic of superior ability and had received recognition as such. C. Analysis and Conclusions It is the General Counsel's contention that at the August 16 meeting Respondent's president presented employees with an ultimatum that they cease engaging in concerted activity or get out; that this constituted a constructive discharge of employees because of their protected concert- ed activity which violated Section 8(a)(1) of the Act,-,19 and that an order requiring reinstatement and backpay which is the normal remedy for unlawful discharges is warranted. Alternatively, the General Counsel asserts that, even if it is found the employees were not discharged but walked out, they were engaged in protected concerted activity and entitled to the remedy normally accorded economic strikers including reinstatement and- backpay following an unlawful refusal after a request to return to the job. 17 About a month later Comstock gave notice to terminate his employment because he was moving to another city. 18 Patrick, who testified he had told Boyle on Wednesday he had a full crew, named as mechanics on duty on August 22 McBee, Comstock, Strylie, an individual named Kaywood, and himself. He further indicated that on Wednesday he used Farrell on the grease rack and to assist him on the floor; that Leo, the bodyshop foreman and a bodyshop employee named Mike were also there although the bodyshop had closed down Patrick explained that they had stopped making appointments "because of the walkout" and were rejecting all business because they did not have the men to work and were waiting to see what would happen. 19 At various times during the hearing both the General Counsel and I I find insufficient evidence to establish that the men in the shop had concertedly stopped work after a suggestion was made by someone that they do so. This comment appears to have been no more than an expression of frustration which, although stated, was not clearly acted upon by employees. The fact that one or more of the employees may have put away their tools when they completed their work and waited for the meeting does not require a contrary conclusion. Patrick who was their direct supervisor and who was in the shop during this entire period gave no testimony concerning any such conduct, and it may be assumed that if such was the prevailing conduct he not only would have noticed it and taken some action, but also would have testified as to what took place. Significantly, Farrell, who purportedly reported such conduct on the part of the men, was never called to testify concerning what he had observed or what he had reported to Yanta. On the contrary, evidence that work was still in progress is indicated by Patrick's testimony that he personally was involved in a repair problem which he had to turn over to someone else when the word came that Yanta would see the men. Similarly, the testimony that after the meeting the men returned to the shop to pack up their tools would indicate that they had not previously done so. On the basis of all the evidence, I find that the shop employees did not engage in a cessation of work before their meeting with Yanta on August 16. There is virtual unanimity concerning what was said in the August 16 meeting by Yanta and the men, and what took place immediately following the meeting. The uncontradicted testimony presented clearly reveals in Yanta's total conduct, as well as in his statements, an ultimatum to employees that they cease their concerted activity ("quit bitching" and let him run his business his way) or be discharged ("get out" within 30 minutes).20 I find that these and similar statements made by Yanta to employees at the August 16 meeting constitute threats of reprisal for engaging in protected concerted activity violative of Section 8(a)(1) of the Act. There is no saving grace in the fact that at first this was stated as an alternative. For, requiring employees to give up their statutory right to engage in protected concerted activity in exchange for continued employment constitutes the impo- sition of an unlawful condition to continued employment amounting to a constructive discharge.21 Even if Yanta had received a report that the employees had stopped working and was angry because he believed the employees were refusing to perform their work in order to force him to conduct the meeting they had requested, and if his statements are interpreted as an ultimatum that they return to the shop and perform their work or be referred to the five employees as "8(a)(3)s." This was an inadvertent but erroneous label as a violation of Sec. 8(a)(3) of the Act is not alleged in the complaint Correction of this inadvertence does not, however, require a change of any ruling made, nor does the mislabeling affect or alter the meaning of any of the statements made. 20 To be protected, the employees' concerted activity need not involve a formal organization with an officially designated spokesman or contemplate collective bargaining through unionization . See Carbet Corp., 191 NLRB 892. 21 See American Enterprises, Ind, 191 NLRB 866, 868-869, Royal Crown [Bottling Co., Inc, 188 NLRB 352-353. Verbal abuse alone may be deemed a ponstructive discharge See Marie Antoinette Mfg., 193 NLRB 396, 399. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged, his conduct was unlawful. For, the voicing of grievances, which was the concerted effort in which the employees were engaging, is a protected concerted activity and a strike for that objective is also protected, and one for which employees may not lawfully be discharged.22 In the final analysis, however, the specific statements made and the total impact of Yanta's meeting with employees on August 16 amounted to a discharge 23 as punishment for continued concerted activity, by which Respondent interfered with, restrained, and coerced employees in the exercise of their statutory rights in violation of Section 8(a)(l) of the Act. Yanta virtually admitted that he conditioned the reinstatement of employee Comstock upon the latter's commitment to refrain from engaging in protected concert- ed activity. I find that Respondent violated Section 8(axl) of the Act when, in the interview in which Comstock was seeking his job back, Yanta advised that he did not want any troublemakers around there and withheld his reply until after Comstock assured him Comstock would not give any trouble, whereupon Yanta ceased expounding on his opposition to troublemakers and told Comstock to report to work the following morning. I also find that Yanta's statement to McBee regarding Boyle causing the trouble, when discussing McBee's reinstatement, carries a threat violative of Section 8(a)(1) of the Act. It is charged that Respondent discriminatorily refused to reinstate Boyle because it viewed him as the ringleader in such concerted activity. There is substantial evidence indicating that Respondent had cause to,24 and did, believe 25 that Boyle was the leader of the group activity, and that Respondent referred to him as a "troublemaker." Boyle was the first to arrive at the shop the morning following the termination of the employees and to ask Patrick whether the men were going to get their jobs back. Patrick responded negatively. Yet a half hour later when McBee came by the shop to verify the hours relating to the pay he had received, but not to seek reemployment as he had already obtained employment elsewhere, Patrick used various approaches to persuade McBee to return to the job. Boyle made repeated contact with Patrick relating to reemployment and to his job-seeking efforts and Patrick seemed most willing to assist Boyle find a job elsewhere, meanwhile withholding information that men were being rehired and finally falsely telling Boyle Respondent had already hired a full crew. Patrick himself set the date of this ss See Phillips Industries, Inc., 172 NLRB 2119, 2128 : "Concerted activities for the purpose of mutual aid and protection include the presentation of grievances and a temporary stoppage of work to present grievances. Whether the employees engaged in a 'walkout' [Electronic Design and Development Company, Inc., 168 NLRB 763] or a 'walkup' [N.L.R.B v. Kennametal, Inc., 182 F.2d 817 (C.A.3)] in quest of improved terms and conditions of employment , where such action is not forbidden by a valid subsisting collective-bargaining agreement, such activity is protected activity within the meaning of Section 7 of the Act." 23 1 find nothing in the circumstances herein warranting the label "walkout" applied to the events of August 16 by Respondent 's officials both in testimony and in communications with customers , the public, other dealerships, and the employees . The evidence clearly establishes that the only reason practically all of the shop employees absented themselves from work at the same time was Yanta 's 30.minute time limit within which they were to take their tools and vacate the premises. That this was clearly the situation is emphasized by Supervisor Patrick's invitation to all employees as they were leaving to give him their phone numbers so he could reach advice as Wednesday, August 22, when Boyle came into the shop to have some warranty work done and asked Patrick whether he needed a mechanic. The evidence establishes that at that time Respondent had not filled all the vacancies. Some effort was made to attribute the failure to rehire Boyle to the fact he failed to seek reinstatement or rehire from Yanta personally. In his testimony, Yanta enumerat- ed a list of matters and alluded to others he would have wished to discuss with Boyle personally before he would have rehired Boyle, had Boyle sought him out. Yanta indicated that had such an interview been satisfactory, Boyle probably would have been reinstated. In his testimony Yanta based this conclusion on the assertion that he rehired all the others who spoke to him. This is hardly a convincing argument, for Yanta admittedly extracted from Comstock a commitment to refrain from protected concerted activity. Similar assurances were implied in the McBee interview and Yanta, by actions and comment, refused to discuss Calton's stated desire to have his job back. Moreover, when employees left the shop on August 16 they were told by Patrick to maintain contact with him for the purpose of returning to their jobs and this is what Boyle did. If an interview with Yanta was necessary, it must be concluded that this information was deliberately withheld from Boyle while the desire of McBee and Calton to see him were called to Yanta's attention when such interest was discussed with Patrick. All of these circumstances clearly point to a deliberate design to avoid reemploying Boyle. As Respondent had repeatedly acknowledged Boyle's superior ability and frequently outstanding performance as a mechanic, and none of the matters for discussion listed by Yanta were advanced by him as Respondent's reason for so obviously avoiding rehiring Boyle, the inference is inescapable that Respondent discriminatorily failed and refused to restore his job to Boyle because of his part in the concerted activity for which employees had been discharged. I find that Respondent thereby violated Section 8(a)(1) of the Act. With respect to the allegation that Respondent threat- ened to blacklist an employee, I have credited Comstock's testimony relating his interview with Yanta in which it appears that the latter asserted "he would fix it so Larry Boyle would not work for another AMC dealer in Kansas them and they could return to work as soon as Yanta's temper cooled down. 24 Boyle had been instrumental in arranging the first meeting of employees with Yanta on the subject of their grievances and had acted as employee spokesman at that meeting . It was Boyle's "stall" where the employees gathered for their discussions of their problems and Patrick had observed them in Boyle's stall engaged in discussions on the morning of August 16. Further, although Boyle had refused to arrange the August 16 meeting or to act officially as the employee spokesman , he was the only employee who spoke up at the meeting and it was Boyle who first rose and asked about his pay, followed by all the other employees at the meeting. 25 During the meeting, Yanta began stating his position looking directly at Boyle who clearly felt compelled to respond by denying the accusation. Yenta told McBee at the latter's reinstatement interview on the following morning that it was Boyle who was causing the trouble , and that he thought it was Boyle who had "got up" the meeting of August 16. Yanta specifically referred to Boyle, in his conversation in the Comstock reinstatement interview, as the troublemaker. SUBURBAN AMC/JEEP City. . . ." Although I cannot find in the substantial evidence presented on this subject that Yanta took any steps directed towards-call ying out any such scheme, and I so hold despite the difficulties encountered by Boyle in obtaining employment, Yanta's demonstrated propensity toward strong statements when he is angry leads me to conclude that he did make a statement reasonably close to that related by Comstock. I do not credit his denial thereof. In the circumstances in which they were uttered , I find that Yanta did threaten blacklisting as a retaliatory measure for concerted activity and, thereby, Respondent violated Section 8(a)(1) of the Act. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By threatening employees with discharge or other reprisals ; by discharging Marion McBee, John L. Boyle, Thomas Comstock, Robert, A. Calton, and Steven P. Outlaw, and failing and refusing, unconditionally, to reinstate the last four named employees; by imposing an unlawful condition upon reinstatement; and by threaten- ing to blacklist an employee, all for engaging in protected concerted activities, thereby interfering with, restraining, and coercing employees in the exercise of their Section 7 rights, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. The Respondent did not violate the Act in any other manner alleged herein. THE REMEDY For the purpose of effectuating the policies of the Act, it will be recommended that Respondent be ordered to cease and desist from engaging in the unfair labor practices found, and from in any other manner interfering with, restraining, or coercing its employees. Further, it will be recommended that Respondent be ordered to offer John L. Boyle , Robert A. Calton, and Steven Outlaw,26 immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make each of them, Thomas Comstock and Marion McBee,27 whole for any loss of earnings and other benefits suffered because of Respondent's discrimination against them by payment to each of a sum of money equal to that which he 2e The General Counsel conceded that McBee was given an uncondi- tional and adequate reinstatement, and therefore his name is omitted from such requirement. Although Comstock accepted the unlawful condition and returned to work on August 21, he thereafter terminated his employment for personal reasons. Accordingly, it will not be recommended that he now be given an unconditional offer of reinstatement. 27 As Comstock left his job for reasons unrelated to the unlawfully imposed conditions he is deemed to have indicated he had no further interest in employment with the Respondent, and his entitlement to backpay shall cease as of the date he terminated such interim period of unlawfully conditioned employment. 459 normally would have earned, absent the unlawful discrimi- nation, with backpay and interest computed under the established standards of the Board, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of facts, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER28 The Respondent, Suburban AMC/Jeep, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reprisals of discharge; discharging, and failing and refusing, unconditionally, to reinstate employees; imposing unlawful conditions upon reinstatement; and threatening to blacklist an employee, for engaging in concerted activities for their mutual aid or protection, or in any like or related manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement in conformity with Section 8(aX3) of the Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer John L. Boyle, Robert A. Calton, and Steven P. Outlaw, immediate and full reinstatement to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them, Marion McBee and Thomas Comstock, whole for any loss of earnings each may have suffered by reason of the discrimination 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, and reports, and all other records necessary for determination of the amount of backpay due and the rights of reinstatement under the terms of this recommended Order. (c) Post at its place of business at Raytown, Missouri, the attached notice marked "Appendix." 29 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by the Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. 28 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. 29 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." 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT discharge, threaten to discharge or to blacklist, refuse to reinstate, place unlawful conditions upon reinstatement, or otherwise punish employees because they have engaged in concerted activities for their mutual aid or protection. WE WILL offer John L. Boyle, Robert A. Calton, and Steven P. Outlaw immediate and full reinstatement, and will give backpay to them and to Marion McBee and Thomas Comstock. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights. All employees are free to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Our employees are also free to refrain from any or all such activities. Dated By SUBURBAN AMC/JEEP, 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, 616 Two Gateway Center, Fourth At State, Kansas City, Kansas 64101, Telephone 816-374-4518.