Diamond Automotive Distributors, Inc.

DIAMOND AUTOMOTIVE DISTRIBUTORS, INC. 103 Diamond Automotive Distributors, Inc. and Newton Carburetor and Ignition, Inc. and International Union of United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW).' Cases I-CA-9482 and I-CA-9627 October 17, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 21, 1974, Administrative Law Judge Jerry B. Stone issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel and the Re- spondents filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith and to adopt his rec- ommended Order, as modified. The Administrative Law Judge found that the dis- charge of Donald Desmarais on February 22, 1974,' was not discriminatorily motivated and therefore was not violative of Section 8(a)(3) and (1) of the Act. We disagree.4 As found by the Administrative Law Judge, in September, Respondents hired Donald Desmarais to be store manager at Respondents' Whitman store. However, the Whitman store was closed for econom- ic reasons around November 12 to November 19, and Desmarais was transferred to run Respondents' Chestnut Street store around November 23. On December 1, a meeting was held by Joel Dia- mond in which a new company policy was promul- gated. Diamond said the employees would have to work longer hours and harder. No mention was made of additional remuneration. The employees t Hereinafter called UAW. 2 The Respondents have 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 credibili- ty 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 3 All dates are in 1973 unless otherwise stated. 4 Member Kennedy agrees with the conclusion of the Administrative Law Judge that the evidence does not establish that Respondents discharged Desmarais on February 22, 1974, for discriminatory reasons within the meaning of the Act. Accordingly, Member Kennedy would sustain the Ad- ministrative Law Judge's dismissal of the 8(a)( I) and (3 ) allegations of the complaint regarding the discharge of Desmarais. discussed this and decided to get some information about a union. Desmarais made a telephone call to the National Labor Relations Board. Desmarais and George Lee, found by the Administrative Law Judge to have been discriminatorily discharged, a finding we would not disturb, later made a telephone call to Gerald Harris of the UAW. Four employees, includ- ing Desmarais, attended a meeting on December 3 at the UAW hall, signed authorization cards, and took literature and authorization cards with them to be signed by other employees. On December 4, these employees, including Desmarais, distributed the union literature around the building at Respondents' Chestnut Street store and in Joel Diamond's office. On December 6, Harris, the UAW representative, sent a letter to Joel Diamond, president and treasurer of Respondent Diamond Automotive Distributors, Inc., requesting recognition. The letter was signed for by employee Charles Earnest and was received by Joel Diamond. The letter was in an envelope bearing the Union's return address. Diamond looked at the envelope and remarked in effect that he wanted to know if it were a bomb or not. He then opened the letter and went into his office. On December 7, Lee was fired, as found by the Administrative Law Judge, for his union activity. On December 8, Joel Diamond called employees Des- marais and Earnest into his office and engaged in illegal interrogation of Desmarais concerning his and others' union activities. On December 11, Milton Di- amond, president and treasurer of Respondent New- ton Carburetor and Ignition, Inc., engaged in several conversations with employees in which he unlawfully interrogated employees about their union activities and created the impression that the employees' union activities were under surveillance. On January 2, 1974,5 Desmarais and Joel Dia- mond had a discussion during which Diamond told Desmarais that he fired Lee because of the Union. Thereafter, on January 15, Joel Diamond told Des- marais that "if the Union got in, that he'd [Diamond] have to take George [Lee] back and I'd [Desmarais] end up without a job." The Administrative Law Judge found and we agree that this was an illegal threat to Desmarais' job security if he supported the Union taken in context with the fact that prior to the union activity of the employees Respondents had in- tended to operate with a nucleus of employees in- cluding both Lee and Desmarais. During the conversation between Desmarais and Diamond on January 15, Desmarais told Diamond that Desmarais would have to protect himself and look for another job. Thereupon, Diamond told Des- marais that he would give him a good reference and 5 All dates hereafter are in 1974. 214 NLRB No. 17 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Desmarais told Diamond that he would give him 2 weeks' notice before he left. On February 11, Desmarais told Joel Diamond that he had been called by a company named Milli- pore which wanted him to start work in l week. Dia- mond asked Desmarais whether he was going to give Diamond notice. Desmarais did not reply but shook his head, indicating that he would not be able to give notice. Desmarais told Diamond that Millipore was supposed to call him that night and let him know about the job. Diamond asked Desmarais to let him know what happened. Millipore did not call Desmarais about the job on February 11. The next day, February 12, Desmarais told Diamond that he had not heard from Millipore. On Saturday, February 16, some of the drivers asked Desmarais whether Respondents were going to be open on Monday, February 18, a legal holiday in Massachusetts. Desmarais told the drivers that as far as he knew Monday was a holiday, that Joel Dia- mond had not told him anything, and that they should ask him. One of the drivers stated that if they were to work Joel Diamond would have told them. The drivers then left work. Later that day, Joel Dia- mond told Desmarais that the Respondents had de- liveries and work to do on Monday. Desmarais and all the other employees did not work on Monday, February 18. On Tuesday, Febru- ary 19, when Joel Diamond asked Desmarais why he had not worked the previous day, Desmarais replied that he had thought that Monday was a holiday. Desmarais also said he had thought that Diamond was confused and was thinking about Tuesday in- stead of Monday when Diamond had told him on Saturday that there was work to do on Monday. On February 20, the Respondents brought in a salesman to learn Desmarais' work. Thereafter, on February 21, Diamond asked Desmarais if he had heard from Millipore. Desmarais answered that he had not heard from Millipore and that he did not expect to hear from them since, if he were going to, he would have heard by then. . On February 22, Desmarais was terminated by Joel Diamond. This was the same day that a Stipula- tion for Certification Upon Consent Election was signed by Respondents and the UAW. The next day, February 23, Joel Diamond told Desmarais that he was firing him because "I don't want anybody work- ing for me looking around for another job." Dia- mond said that he was getting a lot of phone calls for references and Desmarais was taking too much time off from work going on interviews. At the hearing, Joel Diamond asserted business decline as an addi- tional reason for discharging Desmarais. On these facts, the Administrative Law Judge found that Desmarais was a known union supporter; the Respondents were opposed to the Union and en- gaged in extensive conduct violative of Section 8(a)(1) and (3) of the Act; Respondents had indi- cated to Desmarais that Respondents were selecting persons for continuance or discharge on the basis of belief as to their union activity or support or how they would vote in an upcoming NLRB representa- tion election; and the timing of Desmarais' discharge on February 22, the same day that a stipulated elec- tion agreement was entered into, was suspect. Based on the above, he stated that, if valid reasons did not exist for the termination of Desmarais on February 22, the above findings would warrant a conclusion that the discharge of Desmarais was for discrimina- tory reasons. With these facts established and the rejection of Respondents' economic justification by the Adminis- trative Law Judge with regard to George Lee's dis- charge, the Administrative Law Judge nevertheless found that the real reason for Desmarais' discharge was not his union activity nor Respondents' union animus but rather Desmarais' failure to report to work on February 18, and the continuing efforts by Desmarais to secure other employment. We disagree. This first ground, as the record shows, was never advanced by Respondents as grounds for discharge either in the reasons given to Desmarais by Joel Dia- mond or by Diamond on the witness stand. In fact no one else reported for work that day and yet only Desmarais was discharged under a suspicious timing sequence-the day a stipulated election agreement was executed. As to the second ground, the only reason that Des- marais was looking for another job was because he had been, as found by the Administrative Law Judge, previously and illegally threatened with dis- charge by Joel Diamond. In these circumstances, we will not permit Respon- dents to take advantage of the fact that Desmarais rightly took seriously their illegal threat of discharge. On the basis of the above, we are convinced that the discharge of Desmarais was an effectuation of Re- spondents' prior threat of job loss and was directly related to Desmarais' union activities. Accordingly, we find that this discharge tended to and did discourage membership in the UAW in vio- lation of Section 8(a)(3) and (1) of the Act and shall order that Respondents offer Donald Desmarais the position he previously held or, if that job no longer exists, a substantially equivalent position, without prejudice to his seniority or other rights and privi- leges, and make him whole for any loss he may have suffered as a result of such discrimination. Interest on any monetary benefit lost as a result of Respon- DIAMOND AUTOMOTIVE DISTRIBUTORS, INC. 105 dents' discrimination against Desmarais shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716'(1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that Respondents, Dia- mond Automotive Distributors, Inc., and Newton Carburetor and Ignition, Inc., Newton, Massachu- setts, their officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as modified below: 1. Substitute the following paragraph for para- graph 2(a): "(a) Offer George Lee and Donald Desmarais im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges, and make them whole in the manner set forth in the section of this Decision entitled `The Remedy."' 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer to George Lee and Donald Des- marais immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay suffered by reason of the dis- crimination against them. WE WILL NOT discharge or otherwise discrimi- nate against our employees because of their ac- tivities on behalf of International Union of United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), or on behalf of any other labor organization. WE WILL NOT interrogate our employees con- cerning their union or protected concerted activ- ities, sympathies, and beliefs, in a manner con- stituting interference with, restraint, and coer- cion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT threaten our employees with dis- charge or other reprisals because of their engag- ing in union or protected concerted activities. WE WILL NOT give our employees the impres- sion that their union or protected concerted ac- tivities are under surveillance. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. All our employees are free to engage in or to re- frain from engaging in union or concerted activities, except to the extent that such rights might be affect- ed by an agreement in accordance with Section 8(a)(3) of the Act. DIAMOND AUTOMOTIVE DISTRIBUTORS, INC. NEWTON CARBURETOR AND IGNITION, INC. DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This pro- ceeding under Section 10(b) of the National Labor Rela- tions Act, as amended, was tried pursuant to due notice on April 17 and 18, 1974, at Boston, Massachusetts. The original charge in Case 1-CA-9482 was filed on De- cember 10, 1973. The amended charge in Case 1-CA-9482 was filed on December 12, 1973. The original charge in Case 1-CA-9627 was filed on February 25, 1974. The amended charge in Case 1-CA-9627 was filed on March 21, 1974. The order of consolidation and the consolidated complaint in this matter was issued on March 26, 1974. The issues concern (1) whether the Respondent has violat- ed Section 8(a)(1) of the Act by certain acts of interroga- tion, threats, and promises of benefits, and (2) whether the Respondent has violated Section 8(a)(3) and (1) of the Act by the discharges of George Lee and Donald Desmarais. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the General Counsel and the Respondent and have been considered. Upon the entire record in the case and from my observa- tion of witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The facts herein are based upon the pleadings and ad- missions therein. Diamond Automotive Distributors, Inc. and Newton Carburetor and Ignition, Inc., are and at all times material herein have been corporations duly organized under and existing by virtue of the laws of the Commonwealth of Massachusetts. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At all times material mentioned, Diamond Automotive Distributors, Inc. has maintained its principal office and place of business at 1185 Chestnut Street in the city of Newton, county of Middlesex, and Commonwealth of Massachusetts; and at all times herein mentioned, Newton Carburetor and Ignition, Inc., has maintained its principal office and place of business at 1191 Chestnut Street in the city of Newton, county of Middlesex, and Commonwealth of Massachusetts, and both are now and continuously have been engaged at said premises in the sale and distribution of automotive parts and related products. The two corporations, referred to above, in the course and conduct of their business cause, and continuously have caused at all times herein mentioned, large quantities of automotive parts for resale to be purchased and transport- ed in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts, and cause and continuously have caused at all times herein mentioned, substantial quantities of auto- motive parts to be sold and transported from said premises in interstate commerce to States of the United States other than the Commonwealth of Massachusetts. Annually, Diamond Automotive Distributors, Inc. re- ceives automotive parts valued in excess of $50,000 from points located outside the Commonwealth of Massachu- setts. Annually, Newton Carburetor and Ignition, Inc. receives automotive parts valued in excess of $50,000 from points located outside the Commonwealth of Massachusetts. As conceded by the two corporations and based upon the foregoing, it is concluded and found that the Diamond Automotive Distributors, Inc. and Newton Carburetor and Ignition, Inc., are and have been at all times material here- in, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Although initially in issue, the facts and statements by counsel narrowing the issues, reveal that the Employers constitute one employer within the meaning of the Act and that each therefore is jointly and severally responsible for the conduct engaged in with respect to the litigated unfair labor practices. It is so found. Thus, the two referred to corporations will be referred to herein as Respondent. 11. THE LABOR ORGANIZATION INVOLVED The facts are based upon the pleadings,and lack of deni- al therein . International Union of United Automobile, Aerospace and Agricultural Implement Workers of Ameri- ca (UAW), is now, and has been at all times material here- in, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary Issues Supervisory status The facts are based upon the pleadings and admissions therein and the foregoing. At all times material herein, the following named per- sons occupied positions set opposite their respective names, and have been and are now agents of the Respondent, act- ing on Respondent's behalf, and are supervisors within the meaning of Section 2(1 1) of the Act. Joel Diamond-President and Treasurer, Diamond Automotive Distributors, Inc. Milton Diamond-President and Treasurer, New- ton Carburetor and Ignition, Inc. B. The Status of Lee and Desmarais The General Counsel's complaint, dated March 26, 1974, alleged in part that "Respondents did on or about December 7, 1973 discharge George Lee and on February 22, 1974 discharged Donald Desmarais, both employees within the meaning of the Act, then employed at Respon- dent Diamond's Chestnut Street Store." The Respondent's answer filed in this proceeding admitted the facts in the foregoing allegation. At the trial in this matter the Respondent was permitted, as a matter of pleading, to amend its answer and to assert that Desmarais was a supervisor within the meaning of the Act at times relevant to the issues in the proceeding. Al- though Respondent litigated Lee's status as being that of a supervisor prior to November 23, 1973, Lee admittedly was a nonsupervisory employee at the time of all events in real issue in this proceeding. Despite the permission granted to the Respondent to amend pleadings and to litigate the status of Desmarais, such pleadings as filed remain as evidence to be considered in the nature of admissions against interest. Further, it is clear that Respondent had agreed on February 22, 1974, with respect to an NLRB representation election, that Des- marais be included in the bargaining unit. Such evidence, while not being conclusive, as pointed out in Respondent's brief, constitutes evidence for consideration and evaluation in the determination of Desmarais' status. The issue as to whether Desmarais was a supervisor or not relates to the duties, authority, and responsibility of the manager of Respondent's Chestnut Street store. Lee was such store manager,prior to November 23, 1973, and Des- marais was such store manager after November 23, 1973, and until his discharge on February 22, 1974. There has been no store manager at such location since February 22, 1974. Some evidence was presented with respect to Lee's and Desmarais' duties, at other of the Respondent's stores prior to being manager of the Chestnut Street store. At the Whit- man store, the facts indicate that Desmarais, as manager, had with the approval of Joel Diamond fired an employee. The facts in this case , however, ultimately boil down to whether Lee and Desmarais had authority to responsibly direct employees in a nonroutine manner and to exercise independent judgment at the Chestnut Street store. The facts as to their authority at other stores are not of persua- sive probative value in determining such issue. The facts as to Lee's and Desmarais' duties as store man- ager at the Chestnut Street store reveal that they essentially did the same work as the other two or three employees who DIAMOND AUTOMOTIVE DISTRIBUTORS, INC. 107 worked there. The store manager, as other employees did, ordered stock, dispatched drivers, worked on inventory, and worked on the counter. The store manager did not possess the authority to hire or fire and did not possess other similar clear authority indicia of supervisory status. The evidence presented with respect to the authority, or lack thereof, of the store manager to make effective recom- mendations with respect to hiring and firing at the Chest- nut Street store was presented in a muddled and imprecise manner. The evidence does not reveal that the Respondent had delegated to the Chestnut Street store manager author- ity to effectively recommend hiring or firing of employees. Nor does it reveal that Respondent did or did not make independent checks upon recommendations. The issue boils down to a determination of whether the store manager responsibly directs the work of the other employees. Joel Diamond credibly testified with respect to the Chestnut Street store manager's duties as follows: A. No. There's different phases to this type of busi- ness. There's countermen who just look up parts. There are men who have to oversee this. Now, Don was what we call manager, he would oversee ev- erything and he would make the decisions of where everything is delivered, when it has to be delivered, what orders are to be made up and things like that. Q. Well, isn't that pretty much determined by the orders as called in by the salesmen or by customers? A. No, because orders can be delivered on different days and it's up to the manager to make sure they're delivered on the days that he thinks that it should be done. Q. Well, that's just a routine act, isn't it? A. No, it's a long, tiresome job because you have to-it's a traffic control job, really, because you have to figure out where you're sending your men and how long it's going to take them, how many deliveries you can make at the time. After you've done it for many years, it becomes natural. It may look easy but it isn't. Lee, Desmarais, and Earnest testified to the effect that the store manager and counterman duties were essentially the same, excepting that the store manager was "in charge," and that the work was routine in nature. It is undisputed, unless the store manager is a supervisor, that the Chestnut Street store is without direct on-the-spot supervision for around 50 percent of the time. Thus, Presi- dent Joel Diamond is away from such store 3 to 5 hours each day. It is noted, however, that since February 22, 1974, the Chestnut Street store has admittedly operated without a store manager. Considering all of the foregoing, I am persuaded that the preponderance of the evidence requires a finding that dur- ing the period of time December 1, 1973, to February 22, 1974, the Chestnut Street store manager was not a supervi- sor within the meaning of the Act. The question is close because of the routine nature of the work and the absence at times of President Diamond, leaving the store manager in charge. Respondent's acts in treating the store managers as rank-and-file employees in meetings on December I, 5, and other dates, in stipulating such employees to be in the employee bargaining unit, and in admission in pleadings, persuade that whether or not at some time in the past such employees had been supervisors, they were not supervisors in December 1973 or thereafter. I conclude and find that Desmarais was not a supervisory employee during times relevant to this proceeding.' C. Introduction Diamond Automotive Distributors, Inc., and Newton Carburetor and Ignition, Inc., are two separate corpora- tions engaged in the sale and distribution of automotive and related parts. Diamond functions as a jobber, buys parts from warehouses including Newton, and sells and distributes parts to dealers, gas stations and independent garages. Newton operates as a warehouse and sells parts to Diamond and other jobbers. The two corporations, Dia- mond and Newton, function as an intertwined enterprise with Joel Diamond being more in charge of Diamond and Milton Diamond more in charge of Newton. The employee complements are small in number with Newton having around five employees, and with Diamond having around five employees. This proceeding involves issues as to whether George Lee and Donald Desmarais were discriminatorily dis- charged by Respondent in violation of Section 8(a)(3) and (1) of the Act, and whether certain other conduct of the Respondent constituted violations of Section 8(a)(1) of the Act. George Lee was hired in 1971 as the store manager of Diamond's Watertown Street store. His work at such store brought him in close association with Milton Diamond. Personality problems arose between Milton Diamond and George Lee. Lee was unhappy with the situation, and Lee was transferred to Diamond Automotive's Chestnut Street store in May of 1973.. During the period of. time of Lee's tenure as store man- ager of the Diamond Chestnut Street store, May 1973 to November 1973, the United States was confronted with an "energy crisis." During this time Diamond's sale and distri- bution of parts to its gasoline station trade customers de- clined from $4,000 per month to $900 per month. Respondent's officials attributed part of the reason for such decline to the attitude displayed by Lee toward cus- tomers. In September 1973, Respondent hired Donald Desma- rais to be store manager at Diamond's Whitman store. The Whitman store, however, was closed for economic reasons around November 12 to November 19, 1973, and Desma- rais was transferred to Diamond's Chestnut Street store around November 23, 1973. Respondent's official Joel Di- amond told Desmarais that he (Desmarais) was going to run the Chestnut Street store. Around the time that Respondent was planning to close 1 I have considered the fact that the store manager made higher wages than other employees, and the fact that employees considered that they should follow the store manager's orders because he was "in charge," in arriving at the conclusions herein. Such facts balanced against the facts of greater experience, routineness of work, and the reasonableness of following of routine orders are not persuasive of a contrary finding. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Whitman store, the Respondent had to fill what was described as a "Bangladesh" order. This particular order was a large order and required more effort and skill than normal in processing. Lee was the person who had the re- sponsibility for the filling of this order and filled the order during his normal working hours. Because Lee exerted skill and ingenuity in filling the "Bangladesh" order, Lee con- sidered that he should receive a $90 commission in addi- tion to his regular pay. The Respondent had not in the past paid such commission, considered that Lee had performed his work during regular working hours, and considered that he was not entitled to such commission. Lee and Milton Diamond had a number of discussions concerning his re- quest for a commission on the "Bangladesh" order, and there occurred some ill feelings between the Diamonds and Lee as a result of such discussions and the Diamonds' refusal to pay a commission. A subsequent "Bangladesh" order was placed with the Respondent, and Lee refused to work on the same even though it was within the scope of his duties. There is dispute between the testimony of Lee and the Diamonds (Joel and Milton) as to the difficulties between the Diamonds and Lee before he was terminated as store manager and became a salesman on November 23, 1973. 1 am persuaded that Lee shaded his testimony to present himself in the best light. I am similarly persuaded that the Diamonds shaded their testimony to present Lee in the worst light. The thrust of the facts as to the personality problem between Milton Diamond and Lee and the "Ban- gladesh" commission problem, however, is clear. Considering the fact that Joel Diamond took Lee as store manager at the Chestnut Street store after Lee had personality problems with Milton Diamond, that Joel Dia- mond used Lee as a salesman for a new territory after the "Bangladesh" commission problem and customer attitude problem, I am persuaded that the Diamonds did consider Lee to have the difficulties as described, but considered that his abilities outweighed such problems. Around November 23, 1973, Joel Diamond had consid- ered Lee's capabilities and problems, the closing of the Whitman store, economic conditions, and the availability of Desmarais as a store manager for the Chestnut Street store. Joel Diamond, weighing the pros and cons, decided to make Desmarais the store manager for the Chestnut Street store and to terminate Lee's employment. When Joel Diamond and Lee discussed the termination of Lee as store manager, Lee introduced the idea of his becoming a salesman in a territory not previously covered by Respondent's salesmen. Although the discussion started out on the basis of Lee's being in effect an independent contractor, the ultimate arrangements were those of a sala- ried salesman. I note, despite some clear friction between Lee and Milton Diamond, that Joel Diamond appears to have been a practical and essentially fair-minded individu- al in his dealings with Lee at this point. Lee worked several days as a salesman. Perhaps because of the "energy crisis" and the fact that the territory was virgin territory, the selling trip was largely unsuccessful. Lee returned to the Chestnut Street store and was assigned certain responsibilities with respect to clearing out and moving equipment from the Whitman store to the Chest- nut Street store on November 29 and 30, 1973. During the movement of such equipment, an accident occurred where- in a lathe fell, while being removed from a truck, and sub- stantial damage occurred to the lathe. Joel Diamond's actions around November 23, 1973, in- dicated a decision to terminate Lee at that time. Joel Diamond's actions on December 1, 1973, set forth later herein, however, reveal that Joel Diamond changed his mind and intended to keep Lee as part of a nucleus of a cut-down crew of employees to carry on the work of the Chestnut Street store. The facts indicate that around this time the Respondent had let drivers go or was faced with having less drivers. D. Events of December 1-4, 1973 On December 1, 1973, Joel Diamond held a meeting of employees at the Chestnut Street store. Present at the meet- ing, which occurred around 12:30 p.m., were Joel Dia- mond, Milton Diamond, John Diamond, Don Desmarais, and George Lee. The conversation that occurred con- cerned the Chestnut Street store in general. Lee suggested that employee Earnest be brought in. A driver was asked to handle the counter so that Earnest could participate in the meeting. What Joel Diamond told the employees is re- vealed by the following credited excerpts from Lee's testi- mony. A. Well, he said that things were rough out there. There was an energy crisis on, parts and oil were in short supply. He said because things were so bad out there that we were going to have to work longer and harder hours and if we didn't want to, he would get some people who would. A. After he said that, I said, "wait a minute, how are we supposed to do this. We have two less people than we had a week ago. We have three drivers, two are out all day and one makes local deliveries." That means no drivers and they were talking about how the drivers would unload the trucks and do the heavy work. I said, "How is that possible to do it. It would be up to us, the three people remaining, Don Desma- rais, Chuck and myself to unload the trucks, load the trucks, wait on retail and garage trade, put stock away and so on and so forth." And he said, "Well, you're going to have to work harder and longer to do it." He said we would also make local deliveries. Q. Who would make- A. Don and I would make local deliveries. Q. Was anything said about more money? A. No, no compensation was mentioned at all. A. Joel mentioned that one of my jobs, my primary job would be checking the orders to be sure they were accurate. Don's would be putting them up. Chuck's would be writing them up and so on and so forth using DIAMOND AUTOMOTIVE DISTRIBUTORS, INC. the drivers to pull the orders. Q. Who was going to schedule them. A. We were going to schedule the trucks to go- Q. Who is "we"? A. Don, Chuck and myself. Q. The three of you? A. Right. Get together and schedule a route the salesman should follow, north, south, east and west. A. Oh, yes. There was also some conversation, after he said to work harder and longer, he said that Chuck, Don and myself would be the nucleus of the crew. Later that day Lee, Earnest, and Desmarais, while at the Chestnut Street store, discussed what had transpired at the 12:30 p.m. meeting. Again, on Monday, December 3, 1973, the three employees again discussed what had transpired on December 1, 1973. The employees decided to see what could be done about the requirement to work extra hours. Desmarais made a telephone call to the National Labor Relations Board (apparently the regional office located in Boston, Massachusetts). Lee and Desmarais later made a telephone call to Gerald Harris of the UAW. A meeting was set for the union hall on the evening of December 3, 1973. Lee, Desmarais, and Earnest invited another employ- ee, Al Batte, to go to the union hall with them. The above-mentioned employees went to the UAW union hall around 6 p.m. on December 3, 1973. At the union hall the employees received and signed union au- thorization cards and took union cards and literature with them for distribution to other employees. On December 4, 1973, the employees distributed the lit- erature around the building at the Chestnut Street store and in Joel Diamond's office. E. Events of December 5, 1973 On December 5, 1973, around 2:30 p.m. Milton Dia- mond spoke to employees Lee, Desmarais, and Earnest at the Chestnut Street store. What occurred is revealed by the following credited excerpts from Lee's and Desmarais' tes- timony. 2 Excerpt from Lee's testimony A. He came in the back room where I was and said, "So you're going to get a Union in." So, I said, "Wait a minute." And I went and got Chuck and Don and brought them back with me. When I brought them back, he essentially repeated it. He said, "So you're going to get a Union in. Good, now you'll work." He said, "I don't have to have a Union shop. I can have a Union or a non-Union shop. I can have Union or non- Union men. Me and my sons run the business. I know 2 Milton Diamond testified to the effect that he did not know of union activity until around December 10, 1973, and to the effect that this event did not occur . I found Lee, Earnest, and Desmarais to be more frank , forthright, and truthful appearing witnesses than Milton Diamond and credit their testimony over Milton Diamond 's as to this event. 109 people in New York and they know about Unions." He said he'd fight us all the way and he mentioned something about a pension plan and he said, "I can fire you right now." A. I stopped the conversation. Q. What do you mean you stopped the conversa- tion? A. I just ended it. I said "That's enough of this". This was after some small talk by Don and Chuck. They mentioned something about the Union. He said, "What can a Union do for you" and we said, "We wanted some protection. We needed some protection against being fired without just cause." And after that there was some small stuff about scheduling some trucks and then we broke it up. I said, that's enough of this and Don and Chuck went back to the counter and I went back to work. Excerpt from Desmarais' testimony A. Well, you know, he says, oh, you're going Union. In other words , now you're going to work harder. A. And he says that, you know, he didn't want the Union there, and all that, you know, the exact words-then he mentioned something about if he had to he'd bring in the salesmen off the road, and all that, you know, to work the store, themselves, they could run it. The General Counsel alleged in effect that the Respon- dent by Milton Diamond, on December 5, 1973, engaged in (1) unlawful interrogation as to employee concerted ac- tivities, (2) threatened employees with discharge and other reprisals because of their concerted activities, (3) threat- ened employees that the business would close because of their concerted activities, and (4) promised employees ben- efits to encourage them to cease their concerted activities. The facts adduced to establish these allegations are re- ferred to above. Considering all of the facts, I conclude and find that the facts do not establish that Respondent has violated Section 8(a)(1) of the Act by unlawful interrogation of employees as to their concerted or union activities. Rather, the facts reveal that the employees had engaged in union activities on December 3 and 4, 1973, that because of the smallness of the Respondent's operations and employee complement and timing of events an inference is warranted, and I so infer, that Respondent knew of such union activities, and' that the context of Respondent's remarks was not that of interrogation but rather the presentation of a position. Considering all of the facts, I am persuaded that Re- spondent, by Milton Diamond, threatened employees with discharge and other reprisals because of their engaging in union activities in violation of Section 8(a)(I) of the Act. I 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD am persuaded that Milton Diamond's remarks to Lee that he could fire him, and the remarks to the effect that the business could be run by the family and the salesmen re- veal such threat of discharge and other reprisals. Considering the foregoing, I am persuaded that the facts relied upon by the General Counsel to support the allega- tion of threat to close the business do not establish such allegation but instead reveal simply a threat of discharge and reprisals. Considering the facts relating to a reference to a pension or insurance plan, the facts are insufficient to reveal that such facts constitute a promise of benefit rather than a statement of what was already planned. Accordingly, such allegation will be recommended to be dismissed. F. The Events of December 6, 1973 J The Union sent a letter, dated December 6, 1973, to Joel Diamond, president of Diamond Automotive Distributors, Inc. The letter was received at Respondent's place of busi- ness by Charles Earnest. Earnest signed a return receipt card for such letter. The letter was in an envelope having the Union's return address thereon. The letter was later handed to Joel Diamond by Earnest. Diamond looked at the envelope and remarked in effect that he wanted to know if it were a bomb or not.' Diamond opened the letter and went into his office. G. Events of December 7, 1973 s The discharge of Lee On December 7, 1973, Joel Diamond called Lee into Diamond's office. With Joel Diamond at the time were his brother (John Diamond) and Milton Diamond. What oc- curred is revealed by the following credited excerpts from Lee's testimony. Q. Now, as near as you can recall, what was said on December the 7th in that office by any of the.partici- pants, or any of the people who were in there? A. Joel Diamond started the conversation by quot- ing.the energy crisis, the shortages around us, the oil, the plastics. He went on for a few minutes on that, and then he mentioned that because of this he was going to have to let me go. - Q. Because of what? 3 The facts are based upon a composite consideration of the demeanor of the witnesses and a logical consistency of the facts . I found Earnest to appear to be a more frank, forthright , and truthful appearing witness than did Joel Diamond to the issue herein . Upon such composite consideration of Earnest's testimony and the logical consistency of facts , I credit Earnest's testimony over Diamond's where in conflict . Upon a composite of Earnest's credited testimony and a logical consistency of the facts, the letter exhibit and signed return receipt card , I find the facts as set out. I credit Desmarais ' and Lee's corroboration of Earnest 's testimony as to the remarks made by Diamond. . 3 The facts are based.upon a composite of the credited testimony of Lee and Desmarais . I discredit Joel Diamond's testimony where in conflict ther- eto. Both Lee and Desmarais testified in a more frank , forthright, and truth- ful manner than did Diamond. For such reason, their testimony is credited over Diamond 's where in conflict. A. Because of the energy crisis, and so on and so forth. And I said, "You're letting the person with the most experience go?" He said, "Yes." I said to him, "Well, just last week you called us in and explained that we were the nucleus of the crew"-meaning Chuck, Don, and myself. He said, "Well, things have changed." Q. That's what he said? A. Yes, sir. Q. Was anything else said? A. Yes. Milton Diamond mentioned that he wanted to let me go because of the Bangladesh deal, and I said to him, "Isn't it because of the Union?" Q. Who did you say that to? A. Joel Diamond. Q. And what, if anything, did he say at that point? A. He shook his head indicating no. Q. Did he say anytling? A. Ten minutes, fifteen. minutes. I said, "If you want me to work the rest of the day?" He said, no, he'd give me my checks so I could leave then. The General Counsel contends that the Respondent dis- criminatorily discharged Lee on December 7, 1973; be- cause of his union activity. The Respondent contends that Lee was not discharged because of his union activity, that Respondent was unaware of union activity at the time of Lee's discharge, and that Lee was discharged for cause. The Respondent contends in effect that Lee had been un- satisfactory as a supervisor, had had problems with Milton Diamond, had had problems with customers, and was dis- charged for economic reasons. Considering all of the facts, I am persuaded and con- clude and find that the preponderance of the facts reveal that the Respondent discriminatorily discharged Lee on December 7, 1973. The dispute between the General Counsel's contention of facts.and Respondent's contention of facts has been resolved by the determination'of facts. Although the facts reveal a basis for dissatisfaction be- tween the- Diamonds and Lee as regards personality con- flicts between Lee and Milton Diamond, possible customer problems, and the broken lathe incident in late November, it is clear that as of December 1, 1973, the Respondent had changed its mind as to letting Lee go and had decided to keep him as part of the nucleus, of a cut-down .crew. The facts reveal that Lee and others, after Respondent's De- cember 1, 1973, meeting with employees, decided concert- edly to engage in union activity and did commence union organizational activity on December 3 and 4, 1973. The facts further reveal that Respondent became aware of such union activity by December 5, 1973, and took steps to combat the unionization of its employees. Milton Diamond's actions on December 5, 1973, in talking to the employees about union efforts, revealed opposition to the union efforts and a propensity 'to engage in reprisals to- ward those who supported a union. Milton Diamond's ac- tions on December 5, 1973, in first approaching Lee before having the other employees to meet for his remarks, and in DIAMOND AUTOMOTIVE DISTRIBUTORS, INC. telling Lee that he could fire him, reveal that Milton Dia- mond considered Lee as being a leader of the union move- ment. Considering the foregoing and the fact of no intervening reason to reveal a basis for change in attitude after Decem- ber 1, 1973, excepting Lee's union activity, I conclude and find" that the facts reveal that Respondent discharged Lee on December 7, 1973, because of his union activities. Such conduct is violative of Section 8(a)(3) and (1) of the Act. It is so concluded and found. H. Events of December 8, 1973 6 On December 8, 1973, Respondent's supervisor, Joel Diamond, called employees Donald Desmarais and Charles Earnest into his office. What occurred is revealed by the following credited excerpts from Desmarais' testi- mony. Excerpt from Desmarais' testimony Q. All right. Tell us as near as you can recall what was said by you, by Joel, and tell us when in this conversation that Chuck Earnest joined the conversa- tion, and what, if anything, Chuck said? JUDGE STONE: What is the date of this? MR. DICIERO: December the 8th, a Saturday. Q. (By Mr. DiCiero) Go ahead. A. Well, he called me in his office and he asked- the first thing he said, he said, "What's this about the Union?" I told him, "I don't want to talk about it." He said that there's no way that the Union could get in because I was still manager-well, before he started saying that, the thing is, right after he asked me, you know, "What's this about the Union," and I said, "I don't want to talk about it," at that point there Chuck was called in. Q. Uh-huh. So what else was said, do you recall? Q. Well, Chuck was in there, the both of us, and he said there's no way that the Union could get in be- cause I couldn't vote, Al couldn't vote, something about Gladys couldn't vote because she was consid- ered clerical, and that somebody that was working for him had a criminal record and couldn't vote. He didn't indicate who it was, you know. Then he said something about he belonged to a warehouse associa- tion and they were going to stand behind him one hundred percent. Considering the foregoing, I conclude and find that the Respondent, by Joel Diamond, engaged in unlawful inter- rogation of Desmarais concerning his and others' union activities. Such conduct is violative of Section 8(a)(1) of the Act. It is so concluded and found. 6 The facts are based upon the credited testimony of Donald Desmarais and Charles Earnest and based upon the fact that they appeared as more frank , forthright, and truthful witnesses in their testimony as compared to Joel Diamond 's testimonial demeanor . Diamond's testimony in conflict with the facts found is discredited. 1. Events of December 11, 1973 III On December 11, 1973, Milton Diamond engaged in several conversations with employees. The facts as to such conversations are revealed by the following credited ex- cerpts from Batte's testimony. Q. When did your first conversation with Mr. Dia- mond take place? A. It was approximately 8:15 of the same morning. Q. Where did you talk to him? A. Well, it was at the front of the store. He instruct- ed me to get Ted Cunningham from the back of the store and come up front, he wanted to talk to us. Q. To the best of your recollection, what did Mr. Diamond say? A. Well, the first thing he said to us was, "What is this with this meeting tonight?" I shrugged my shoul- ders, and then he continued on and he said, "I under- stand there's a Union meeting tonight." He continued about the Union. He said, "What do you people need a union for?" So I told him, I said, "We need job security, possibly better wages, protection all the way around as far as job security was concerned." He said that he didn't see why a Company of his size should have to have a union . He also said that he didn't want to be known as an instigator of unions in his particular business in that geographical area. Q. At this early morning meeting, was anything mentioned about the firing of George Lee? A. Not at that 8:15 meeting, no. There was a meet- ing later on in that same morning where Mr. Diamond and I were conversing about it. He had told me, he said he couldn't understand why we were all following George Lee. He said he was just leading us around. He was only interested in his own job security, he didn't care about us, there was no sense for us to follow him. Q. Do you recall talking about the business at this time? A. Yes, this later meeting between 10:00 and 11:00. Mr. Diamond said-he reiterated again what he said earlier in the morning, saying that the size of his busi- ness, he didn't need a union, didn't want a union, he could bring in his outside salesmen if he wanted to. He said that business was slow, the season was slow, which it was, and he said there could possibly be lay- offs, and he said or as a last term, he could close the store. Q. Directing your attention to later that day, did you have any further discussions with Mr. Diamond that day? A. Yes, I did. That previous weekend, I had been mulling over in my mind whether or not the Union was the right thing for this particular Company. I wasn't too sure. So I was thinking over the weekend 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that maybe we should get together with the Diamonds, Milton and Joel and John, or whoever they wanted, and maybe get the thing thrashed out, you know, get all the complaints and all the problems ironed out. So I asked Mr. Diamond if we could possibly have a meeting that day, or any time at his convenience, and he said, fine. * * * * A. Well, I had called Chuck Earnest and Don Des- marais and I asked them how they felt, and they weren't exactly overjoyed about the idea but they said, well, let's give it a try. So we did. I then said to Milton Diamond, it's all set, and he said, fine, you know, make the arrangements with Joel, which I did do that afternoon, and he said come on up, I think it was between 4:00 and 4:30 that afternoon. Q. And who was there? A. Myself, Chuck Earnest, Don Desmarais, and Rick, one of the office personnel, and John and Joel Diamond. Q. About what time was it held? A. Approximately 5:00 o'clock. Considering the foregoing, I conclude and find that the Respondent, by Milton Diamond, on December 11, 1973, (I)'interrogated employees about their union activities in a manner constituting interference, restraint, and coercion in violation of Section 8(a)(1) of the Act, and (2) created the impression that the employees' union activities were under surveillance. Such conduct is violative of Section 8(a)(1) of the Act. The General Counsel further contended that Respon- dent, by Milton Diamond, on December 11, 1973, threat- ened that the Respondent would close the business to pre- vent the Union from getting in. Batte's testimony on this point was presented in such a way that it lacks the precise- ness necessary to constitute substantial evidence to estab- lish that the references to closing the business was other than reference to need to do so because of the slowness of business. The evidence is of insufficient probative value to establish a threat to close the business because of employ- ees' union activities. It is so concluded and found. J. Events of January 2, 1974 7 On January 2, 1974, Desmarais and Joel Diamond had a discussion . The discussion ensued because Desmarais had misunderstood the Respondent's obligation concerning his Blue Cross-Blue Shield costs . After discussion concerning Respondent's obligations as to Blue Cross-Blue Shield in- surance, Joel Diamond and Desmarais discussed Desma- r The facts are based upon the credited testimony of Desmarais. I found Desmarais to appear to be a more frank, forthright, and truthful appearing witness than I did Joel Diamond and credit his testimony over Diamond's where such testimony is in conflict. rais' ideas of how to increase business and of how to set up a new inventory system. What else occurred is revealed by the following credited excerpts from Desmarais' testimony. A. It was-I described the ideas that I had, and all that, you know, how to put the things on the cards, you know, and I said-the point where he said, you know, why don't you take it home and, you know, start making up the cards, you know, and then later on it was brought up-I brought up, I said, you know, I want to keep my job and, you know, what I'm looking for is security, you know, I said, I don't want the same thing happen to me as it did to George. He turned around and he said, "We let George go because of the Union." Q. That's what Joel Diamond said to you? A. Yes, he did. Considering the foregoing, I conclude and find that the Respondent, by Joel Diamond, threatened employees with discharge if they engaged in union activities. Such conduct is violative of Section 8(a)(1) of the Act. It is so concluded and found. K. Events of January 15, 1974 8 Desmarais credibly testified to the effect that an employ- ee named Shapiro left the Respondent in mid-January 1974; and that he (Desmarais) had a conversation with Joel Diamond around such time. What occurred with respect to such conversation, and the relationship to the 8(a)(1) is- sues, is revealed by the following excerpts from Desmarais' testimony. Q. Okay. As near as you can recall, tell us what was said, what you said, what Joel said at this time? A. Well, I walked in the office and he closed the door and he said, "What I'm going to tell you, I don't want it going out of the office." Well, before he called me in the office, he was on the phone for quite a while with somebody, I don't know who. He said whoever he was talking to suggested that they get the election over with as soon as possible, and the way he was indicating it was going to be in the next week-you know, the weeks to come. He said something about he didn't know whether he was going to let me vote be- cause he didn't know which way I was going to vote. Then he brought up that if I voted for the Union- well, just before that, he said something about if the Union got in, that he'd have to take George back and I'd end up without a job. Q. Go ahead. A. And he said he didn't know whether he'd let me vote or not because he didn't know which way I was going to vote. Then he said Al Batte couldn't vote. 8 The facts are based upon the credited testimony of Desmarais. For the same reasons previously given. I credit Desmarais' testimony over Joel Diamond's where in conflict. DIAMOND AUTOMOTIVE DISTRIBUTORS, INC. 113 Q. (By Mr. DiCiero) What, if anything else, was said? A. He wanted me to find out which way-well, he brought up names, like myself, you know, he didn't know if he was going to let me vote or not, and that if the Union did get in, that he'd have to take George back. In other words, he couldn't have George and I there at the same time. The General Counsel contends that the Respondents, by the foregoing conduct of Joel Diamond, engaged in unlaw- ful interrogation and in threats of discharge violative of Section 8(a)(l) of the Act. As to the question of interrogation, I note that Desma- rais' testimony was presented in an imprecise and rambling manner. Desmarais seems to have started in a conclu- sionary way to have testified relative to the matter of inter- rogation. Desmarais, however, did not finish such testimo- ny in a meaningful way. Desmarais' testimony is not of sufficient probative value to establish that unlawful inter- rogation (in violation of Section 8(a)(1) of the Act) oc- curred. Considering the remarks by Diamond concerning the fact that if the Union came in, Diamond would have to take George Lee back, that he couldn't keep both Lee and Desmarais, in context with the fact that prior to the Union activity of the employees Respondent had intended to op- erate with a nucleus of employees including both Lee and Desmarais. I am persuaded that the remarks were intended to convey to Desmarais a threat to his job security if he supported the Union. Such conduct is violative of Section 8(a)(1) of the Act. It is so concluded and found. L. Events January 15, 1974-February 23, 1974 The discharge of Desmarais During the conversation between Desmarais and Joel Diamond on January 15, 1974, Desmarais told Diamond that he (Desmarais) would have to protect himself and look for another job.9 Diamond told Desmarais that he would give him (Desmarais) good references and that he (Desma- rais) would not have any trouble finding another job be- cause of his background and experience. Desmarais told Joel Diamond that he would give him at least 2 weeks notice before he left. After the above conversation Desmarais commenced ef- forts to locate other employment. On February 8, 1974, Desmarais was contacted by an employer named Milli- pore. Millipore wanted to know whether Desmarais was working and whether he was still interested in employment at Millipore. Millipore indicated to Desmarais that a job was available, that they would want him (if hired) to report to work on February 19, 1974, and that they would tele- 9 1 credit Desmarais' testimony over Joel Diamond 's testimony as to the conversation on January 15, 1974 . Both Diamond and Desmarais appeared to be witnesses who were not thoroughly reliable on all points . Desmarais as to his testimony relating to the January 15, 1974, conversation , however, appeared to be a more reliable witness than Joel Diamond . Considering this and the logical consistency of all the facts , I find the facts as indicated. phone him by the night of February 11, 1974, if he were to be employed. Desmarais told the Millipore official that he had told his employer (Diamond) that he would give Dia- mond 2 weeks notice. Desmarais also told the Millipore official in effect that Diamond needed him for such period of time because another employee was going on vacation. On February 11, 1974, Desmarais told Joel Diamond about his conversation with the Millipore official on Feb- ruary 8, 1974.10 Desmarais told Joel Diamond in effect that he had located a new job with Millipore, that Millipore might want him to report to work by February 19, 1974. Joel Diamond asked Desmarais as to whether he (Desma- rais) was going to give Diamond notice. Desmarais did not reply but shook his head, indicating that he would not be able to give notice. Desmarais told Joel Diamond that Mil- lipore was supposed to call him that night and let him know about the job. Joel Diamond asked Desmarais to let him know what happened. Millipore did not call Desmarais about the expected job on February 11, 1974. On February 12, 1974, Desmarais told Joel Diamond that he had not heard from Millipore. On Saturday, February 16, 1974, some of the drivers asked Desmarais whether the Respondent was going to work on Monday, February 18, 1974 (a legal holiday in Massachusetts-for' Washington's birthday). Desmarais told the drivers that as far as he knew that Monday was a holiday, that Joel Diamond had not told him anything, that they should ask Joel Diamond. One of the drivers stat- ed that if they were to work, Joel Diamond would have told them. The drivers then left work. Later, on Saturday, February 16, 1974, Joel Diamond told Desmarais that the Respondent had deliveries and work to do on Monday (February 18, 1974). Desmarais, however, did not work on Monday, Febru- ary 18, 1974. On Tuesday, February 19, 1974, Joel Dia- mond asked Desmarais why he had not reported to work on February 18, 1974. Desmarais told Diamond that he had thought that Monday was a holiday. Joel Diamond reminded Desmarais that he had told him on Saturday that there was work to do on Monday. Desmarais told Dia- mond that he had thought that Diamond was confused and thinking about Tuesday instead of Monday. On February 20, 1974, the Respondent brought in a salesman, Robert Fone, to learn the aspects of Desmarais' work. Thereafter, on February 21, 1974, Joel.Diamond asked Desmarais if he had heard from Millipore (about the expected job). Desmarais told Joel Diamond that he had not heard from Millipore, that he didn't expect- to hear from Millipore since if he were going to, he would have heard by then. On February 22, 1974, Joel Diamond and Desmarais had another conversation. The facts thereto are revealed by the following credited excerpts from Desmarais' testi- mony. A. I went into the office and we closed-he had me close the door. He brought up the point again, did I The facts are based upon a composite of the credited aspects of the testimony of Desmarais and Joel Diamond. The testimony of either Desma- rais or Joel Diamond not set forth is either discredited as inconsistent with all of the facts or not set forth because not of value. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hear from Millipore? I said no. He said, why don't you give him a call and try to find out, you know, whether you can get the job or not. I told him, I said, I don't even know who I talked to. I don't even know the guy's name. I said how am I going to do that? Then he just sat back and he said, well, I made plans, you know, I thought you were going to leave. The thing is, he says, "We're going to have to let you go." I said, you know-I didn't know what to say at that point. The thing is, I didn't have no job lined up. I turned around and I told him, I said, "I've got nothing lined up. How in the world am I going to feed my family," you know, I've got a family to support, you know, house payment-mortgage, and all that to pay. I told him, "I wasn't going to leave you up in the air. I was going to give you at least two weeks notice. You're leaving me right up in the air," which, you know, I felt wasn't fair. He said, "Let me think about it. I'll let you know before you go home. Later, around 5:15 on February 22, 1974, Desmarais and Joel Diamond had another conversation as is revealed by the following credited excerpts from Desmarais' testimony. A. He said that he thought about it and all that, and he said that he's going to have to let me go. And then I asked him, I said, "Am I fired or laid off?" He said, "Not this again." Q. Yeah,,what else? A. And he said-you know, the thing is, I wanted to find out whether I was fired or laid off. I told him, I said, if I'm fired, I said, I can't collect unemploy- ment. And the thing is, I said, if I'm laid off; at least I can collect unemployment, at least I'll have something coming in. And also I brought up the point that, you know, if I go looking for a job, what am I going to tell them, my-you know, when I go for an interview, I was fired or laid off. I didn't know. He says-at that point he turned around and said, "Let me check and see if you can collect if I say.you're fired," and he said, "Give me a call Monday afternoon, I'll. let you know." At that point, it was around 5:30, it was time for me to go home so I just started walking out. He said, "Have a good weekend." I said, "How do you expect me to have a good weekend," and I just kept going. On February 23,.1974, Desmarais went back to the Re- spondent and had another conversation with Joel Dia- mond as is revealed by the following credited excerpts from Desmarais' testimony. A. Well, I walked in like a normal day, you know, I stood in front-of the store. Joel was there. When I walked in, he walked in his office, but I stayed in front of the counter, and then he came back out and I said-I asked him, "Am I all done?" He said, "Yes." I asked him, I said, "Am I laid off or am I fired?" He said, "You're fired." I asked him, "For what reason?" He said, "I don't want anybody working for me look- ing around for another job." Q. I see. A. And he went into details about a certain inter- view I went to. He knew exactly where I went, who I saw, you know, he was getting a lot of phone calls for references , and I was taking too much time off from work, you know, going on interviews. Conclusion Considering all of the foregoing, I am persuaded and conclude and find that the preponderance of the evidence does not establish that the Respondent discriminatorily discharged Desmarais on February 22, 1974, in violation of Section 8(a)(3) and (1) of the Act. The facts reveal that Desmarais engaged in the initial union organizational ac- tivities in December 1973, and that his interest and support of the Union continued until his discharge. The evidence does not reveal, however, that Desmarais' activity on be- half of the Union after December 7, 1973, was great. How- ever, because of the small employee complement and the total facts relating to union activity, I am persuaded and conclude and find that the Respondent had reason to be- lieve and did believe that Desmarais was a union support- er. The facts in this case reveal that the Respondent was opposed to the Union, and engaged in conduct violative of Section 8(a)(I) and (3) of the Act. If valid reasons did not exist for the termination of Desmarais on February 22, 1974, the union activity of Desmarais, the Respondent's knowledge of Desmarais' union activity, Respondent's conduct violative of Section 8(a)(3) and (I) of the Act, and Respondent's antiunion animus would warrant findings that the discharge of Desmarais was for discriminatory rea- sons. Included in support of such findings would be an evaluation of the indication to Desmarais that Respondent was selecting persons for continuance or discharge on the basis of belief as to their union activity or support of how they would vote in an oncoming NLRB representation election. The timing of Desmarais' discharge on February 22, 1974, with a stipulated election agreement entered into on February'22, 1974, would further support such findings. The timing of events and the facts.thereto must be con- sidered, however, in the light of. other facts. In January 1974, Desmarais indicated to the Respondent that he was going to look for another job. Later, on February 11, 1974, Desmarais told Respondent in 'effect that there. was a strong possibility that he had located another job and that if it went through, the strong possibility existed that he would have to report to such job by February 19, 1974. Later, although told to report to work for Respondent on February 18, 1974, Desmarais did not report to work on such date. On February 19, 1974, when asked about the failure to report to work on February 18, 1974, Desmarais gave a.weak and obviously evasive answer, to wit, that he thought February 18, 1974, was a "holiday."'.' When re- minded of the prior instructions to report to work, Desma- rais gave a weak answer to the effect that he thought Joel Diamond was "confused" in such instructions.12 On Febru- " It was a legal holiday in Massachusetts. but Respondent by virtue of the prior instructions on February 16, 1974, obviously recognized the reply as merely a pretextuous excuse. 12 From a careful observation of Desmarais while he testified and his DIAMOND AUTOMOTIVE DISTRIBUTORS, INC. ary 20, 1974, Respondent took steps to prepare to replace Desmarais by bringing in Forte, a salesman, to learn the work. Considering all of this, I am persuaded, and con- elude and find that Respondent considered that it could not rely on the continued employment of Desmarais or his assertions thereto.13 Under such circumstances, I conclude and find that the preponderance of the facts does not es- tablish that Respondent discriminatorily discharged Des- marais on February 22, 1974. Accordingly, it will be rec- ommended that the allegation that Respondent discrimina- torily discharged Desmarais in violation of Section 8(a)(3) and (1) of the Act be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's op- erations described in section I, above, have a close, inti- mate, and substantial relationship 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 Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act. Having found that the Respondent discriminatorily dis- charged and has refused and is refusing to reinstate George Lee, I shall recommend that Respondent offer him imme- diate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. In addition, I shall recommend that the Respondent make him whole for any loss he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would normally have earned from the date of his dis- charge, less net earnings during said period. Backpay shall be computed with interest on a quarterly basis in the man- ner described by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-295 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Because of the character of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: testimony, it is clear that he knew he was supposed to work on February 18, 1974, and that his answers to Joel Diamond were not forthright. I am per- suaded that Diamond considered the answers in the same light. 13 While Respondent was aware of Desmarais' statements on February 12 and thereafter that he had not heard from Millipore, the facts reveal that Respondent was aware of continuing efforts by Desmarais to secure other employment. Under such circumstances, the failure of Desmarais to work on February 18, 1974, ample cause for concern as to the reliability of Des- marais as an employee for future work existed. CONCLUSIONS OF LAW 115 1. Diamond Automotive Distributors, Inc. and Newton Carburetors and Ignition, Inc., each is an Employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and together constitute a single enterprise, the Respondent herein. 2. International Union of United Automobile, Aero- space and'Agricultural Implement Workers of America (UAW), is and has-been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices pro- scribed by Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of George Lee, thereby discouraging member- ship in the Union, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(a)(I) and (3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 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 14 Respondent, Diamond Automotive Distributors, Inc. and Newton Carburetor and Ignition, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against em- ployees because of their activity on behalf of International Union of United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), or on behalf of any other labor organization. (b) Interrogating employees concerning their union or protected concerted activities, sympathies or beliefs in a manner constituting interference with, restraint or coercion within the meaning of Section 8(a)(I) of the Act. (c) Threatening employees with discharge or other repri- sals because of their engaging in union or protected con- certed activities. (d) Giving employees the impression that their union or protected concerted activities are under surveillance. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. • 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to George Lee immediate and full reinstate- ment to his former job or if such job no longer exists, to a substantially equivalent position without prejudice to his 14 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. 116 DECISIONS OF NATIONAL seniority or other rights and privileges , and make him whole in the manner set forth in the section of this Deci- sion entitled "The Remedy." (b) Preserve and make available to the Board or its agents for examination and copying all payroll records, So- cial Security payment records, timecards, personnel re- cords and reports and all other records necessary or appro- priate to analyze the amount of backpay due. (c) Post at its stores in Newton , Massachusetts, copies of the attached notice marked "Appendix ." 15 Copies of the 15 In the event that the Board 's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading " Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." LABOR RELATIONS BOARD notice on forms provided by the Regional Director for Re- gion I , after being duly signed by Respondent's authorized representative, shall be posted by it for a period of 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced , or covered by any other material. (d) Notify the Regional Director for Region 1 , in writ- ing, within 20 days from the date of the receipt of this Order , what steps the Respondent has taken to comply herewith. It is recommended that the allegations of the complaint, not found to have been established , be dismissed.