Moro Motors Ltd.

192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moro Motors Ltd. and International Industrial Pro- duction Employees Union. Case 29-CA-3686 January 17, 1975 DECISION AND ORDER By ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO On July 29, 1974, Administrative Law Judge Arnold Ordman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three -member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the Administrative Law Judge's rulings, findings, and conclusions and to adopt his recommended order, only to the extent consistent herewith. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(1) and (3) of the Act when it discharged en masse 8 declared union adherents out of a unit of 12 on January 8, 1974; 1 that the strike, which followed these discharg- es, commencing January 9 was in protest against said discharges - and, accordingly, was an unfair labor practice strike ; that the International Production Employees Union represented a majority of the employees in an appropriate unit ; 2 and that inas- much as the Respondent's conduct rendered a fair election unlikely, an 8(a)(1) bargaining order under the authority of N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), was warranted, even in the absence of a finding of a violation of Section 8(a)(5) of the Act, pursuant to our decision in Steel-Fab, Inc., 212 NLRB 363 (1974). Indeed, Respondent does not except to these findings. The Respondent's only exception is to that portion of the Administrative Law Judge's recommended Order, wherein it is ordered to offer to John Sylak full reinstatement and to make him whole for lost earnings from the date of his wrongful termination to the date reinstatement is offered. In its exceptions Respondent contends, inter alia, that the Administra- tive Law Judge erred in failing to consider certain record evidence and make findings thereon, which All dates are in 1974. s As more fully described in the attached Decision of the Administrative Law Judge. 3 We disagree with out dissenting colleague that this invitation to return purportedly establish that Sylak was unconditionally offered, and failed to accept, full reinstatement on January 9. In support of its contention, Respondent relies on the uncontradicted testimony of Sylak, whom the Administrative Law Judge otherwise credited, to the effect that, while at the Respondent's premises to pick up his paycheck on January 9, Manuel Koufman, general consultant and, adminis- trator of Respondent's business, stated to him, "I would like to have you back" to which Sylak made no response. Significantly, Koufman, although called as a witness on Respondent's behalf, was never questioned by Respondent concerning this purported offer of reinstatement to Sylak on January 9. In these circumstances we are not persuaded that Koufman's terse comment, lacking as it does any specificity, was either intended to be, or constituted in fact, the kind of specific and unconditional offer of full reinstate- ment which we customarily require be made in order to toll backpay and absolve a respondent from further offering reinstatement. Accordingly, we find the Administrative Law Judge's failure to consider such evidence to be without prejudice. Respondent contends in the alternative, however, that the proposal made to Sylak at the beginning of February by Respondent's secretary-treasurer, Mort Widen, Jr., constituted an unconditional offer of full reinstatement, which, having been rejected by Sylak, absolved Respondent from further offering reinstate- ment to Sylak, tolled Respondent's backpay obliga- tion to Sylak, and had the effect of changing Sylak's status from that of a discriminatorily discharged employee to that of an unfair labor practice striker. We agree. American Art Industries Inc., 166 NLRB 943 (1967). On direct examination by the General Counsel, Sylak was asked: "Did anyone ever offer you your job back after the . . . meeting . . . on January 8th?" (Emphasis supplied.) Sylak, whose testimony was credited by the Administrative Law Judge, replied affirmatively, explaining that in early February, already employed elsewhere, he went to Respon- dent's premises to visit a friend, and at that time he was offered "the job by Widen, Jr." When asked what exactly Widen said to him, Sylak testified that Widen stated: "We are in a hole for mechanics, would you like to come back to work here?" Sylak's response was "No." 3 On these facts the Administrative Law Judge erroneously concluded that because Widen failed to mention that his offer was for the job previously held by Sylak or that it included backpay or other benefits to work did not provide an opportunity to Sylak to make "a considered choice" in the matter. Sylak's immediate and unequivocal rejection of the offer was obviously not influenced by any such lack of opportunity. 216 NLRB No. 29 MORO MOTORS LTD. normally accruing to a reinstated employee , Widen's offer was, for these reasons, inadequate as an offer of reinstatement.4 At the outset, we note that Widen's offer neither stated nor implied any conditions or qualifications. The record reveals that all Respondent's mechanics had the same job duties and conditions of employ- ment, and that Sylak was employed as a mechanic prior to his discharge . By indicating that Respondent ..was in a hole for mechanics" it is- evidence that Widen's offer was for a mechanic 's job. Moreover, Sylak's own testimony reveals that he understood that Widen's offer was to his former job, and not just a general inquiry about his interest in returning to work for Respondent. We find, therefore, that the only reasonable interpretation of Widen's offer is that it was for the job previously held by Sylak. Having found that Widen 's offer was clearly for the job Sylak had previously held, we see no basis for concluding that it did not also encompass all rights and privileges previously held. If Sylak had any doubts concerning whether the offer was for the job he previously held, which he clearly did not, or concerning whether the offer was without prejudice to his previously held seniority, rights, and privileges, he should have inquired. American Enterprises, Inc., 200 NLRB 114 (1972); Centac Corp., 179 NLRB 313, 322 (1969). With respect to Widen's failure to mention in his offer that it included backpay, the short of the matter is that Respondent was under no obligation to do so. Indeed , were a respondent required to offer to an employee , allegedly dis- charged for discriminatory reasons, reinstatement with accrued backpay, the Respondent's right to litigate the issue of whether the discharge was unlawful would for all practical purposes be nulli- fied. National Screen Products, Co., 147 NLRB 746, 747-748 ( 1964). In view of the foregoing, we find that in early February Respondent unconditionally offered Sylak full reinstatement to his former job, which offer was immediately and unequivocally rejected by Sylak who did not ask for any time to consider the matter. We further find that the offer of reinstatement to Sylak tolled backpay and changed Sylak's status from that of a discriminatorily discharged employee to that of an unfair labor practice striker . According- ly, we hereby modify the Administrative Law Judge's recommended Order to comport with this finding. 4 The Administrative Law Judge characterized Widen 's statement as a "general offer" and thereafter failed to mention Sylak in fn. 14 of his decision wherein he explained why he couched his affirmative relief provisions in conditional terms. In these circumstances it is clear that the Administrative Law Judge impliedly found Widen's offer inadequate, and ORDER 193 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Moro Motors Ltd., Hempstead, New York, its officers, agents, successors, and assigns, shall take the action set forth in the, Administrative Law Judge's recommended Order as so modified: 1. Strike the name "John Sylak" from paragraph 2(b). 2. Insert the following as paragraph 2(c) and reletter the following paragraphs accordingly: "Upon application, offer John Sylak immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessar- y, employees hired on and after January 9, 1974, and make him whole for any loss of pay he may have suffered because of the discrimination against him, for the period from his discharge on January 8, until the beginning of February,5 and also from a date 5 days after his unconditional application for reinstate- ment to the date of Respondent's offer of reinstate- ment, such backpay to be computed in the manner set forth for the computation of backpay in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962)." 3. Substitute the attached notice for the Adminis- trative Law Judge's notice. ACTING CHAIRMAN FANNING, concurring in part and dissenting in part: I agree with my colleagues and I join them in their affirmance of the Administrative Law Judge's findings, as more fully set forth in their opinion, that Respondent violated Section 8(a)(1) and (3) of the Act; that the strike was an unfair labor practice strike; and that, in the circumstances of this case, a bargaining order is warranted. I also agree with my colleagues' finding that Respondent's purported offer of reinstatement on January 9 was inadequate, for the reasons relied on by them, and for the additional reasons herein set forth. Moreover, I agree with my colleagues' finding that Respondent was under no obligation to offer reinstatement with accrued backpay, and that, therefore, insofar as Respondent's alleged offer did not include accrued backpay, it was not, for this reason, inadequate. Nonetheless, unlike my colleagues of the majority, I therefore ordered Respondent to offer him reinstatement and make him whole for lost earnings. 5 We leave to the compliance stage of the proceedings the determination as to the date in February at which backpay is tolled, inasmuch as the record does not reflect said date with exactitude. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would affirm the Administrative Law Judge's conclu- sion that Respondent's alleged early February offer of reinstatement to Sylak was inadequate to both absolve Respondent from further offering Sylak reinstatement and to toll Respondent's backpay obligation. In finding that in early February Respondent unconditionally offered Sylak full reinstatement, which he rejected, my colleagues rely solely, as indeed they must, on certain testimony by Sylak, fully set forth in their opinion, since such testimony constitutes the only evidence upon which such a finding could conceivably rest . In my view, however, this evidence falls woefully short of establishing an offer and refusal of reinstatement which had the effect of relieving Respondent of its statutory duty to offer reinstatement to Sylak and tolling Respondent's backpay obligation as found by my colleagues herein. It is now well established that the remedy of reinstatement and backpay is vital to the Act, a public right granted to vindicate the law against one who has, as the Respondent here, broken it and having as its object the discouragement of discharges contrary to the policies of the Act. Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177, 193 (1941); Lipman Bros., Inc., 164 NLRB 850, 853 (1967), and cases cited in footnote 17. Accordingly, an employer's offer of reinstatement must be specific, unequivocal, and unconditional before respondent will be found to have thereby remedied the effects of its unfair labor practices. In the instant case, my colleagues have implicitly assumed, erroneously I submit, that Widen's com- ment to Sylak constituted an offer and thereafter concluded that, indeed, such constituted an uncondi- tional offer of reinstatement . I note, however, that the subject of returning to work was put to Sylak as a question, not as an offer. Thus Widen merely inquired concerning Sylak's interest in returning to work. As we have properly and repeatedly found, however, a mere inquiry concerning a discrimiantee's interest in returning to work does not constitute an unconditional offer of reinstatement . American En- terprises, Inc., supra; Dobbs House, a Division of Squibb Beechnut, Inc., 182 NLRB 675, 682 (1970); Rea Trucking Company, Inc., 176 NLRB 520 (1969); Leeding Sales Co., Inc., 155 NLRB 755 (1965); J. E. Plastics Mfg. Corp., 131 NLRB 299, 300 ( 1961), footnote 4. Since I would therefore find that Sylak did not receive an unconditional offer of reinstate- ment, it is axiomatic that he was under no obligation to make a decision about returning to work. Accordingly, Sylak's negative response to Widen's question is of no consequence . Leeding Sales Co., Inc., supra at 757; East Texas Steel Castings Compa- ny, Inc., 116 NLRB 1336, 1344 (1956). Even were I to assume arguendo that Widen's query to Sylak was tantamount to an offer of reinstatement, I would nevertheless find on at least two bases that it was, in the circumstances of this case, not uncondi- tional and therefore inadequate . Thus, as my colleagues recognize , Sylak was employed elsewhere in early February. Where, however, a discriminatee is employed elsewhere at the time he is offered reinstatement, he must be afforded an opportunity to make a considered choice whether to retain his present employment or to return to his former employment, and, if the latter, to give reasonable notice to his former employer. Dobbs House, supra; Harrah 's Club, 158 NLRB 758, 759 ( 1966), fn. 1. Clearly, no such opportunity was afforded Sylak here. Indeed, by contending in its brief in support of its exceptions that Sylak's "refusal to accept [Wid- en's] offer to return to work changed his status to an unfair labor practice strike," Respondent in effect concedes that it intended its alleged offer of reinstatement to be accepted or rejected by Sylak there and then, and, therefore, conversely, in effect concedes that it did not intend to afford Sylak an opportunity to make a considered choice whether to retain his present employment or to return to Respondent's employment. Having failed to afford Sylak an opportunity to make such a considered choice, I would find that Respondent's early Febru- ary alleged offer of reinstatement was, for this reason standing alone, not unconditional and therefore inadequate. In addition, the evidence discloses that when apprised that 8 of its employees, including Sylak, out of a unit of 12, had joined the Union, Respondent unlawfully conditioned their continued employment on their abandoning the Union. Upon their refusal to do so, Respondent discharged them. In these circumstances, when shortly thereafter Respondent offered reinstatement to Sylak, it was obliged to indicate to him that it had altered its policy of opposition to the employment of individuals seeking union representation. Art Metalcraft Plating Co., Inc., 133 NLRB 706, 707 ( 1961), enfd. 303 F.2d 478 (C.A. 3, 1962); Dobbs House, supra. Having failed indicate to Sylak, on either January 9, or in early February, that its policy with respect to the union adherence of its employees was in any way altered, I would find that the alleged offers of January and early February were, for this reason standing alone , not uncondi- tional and therefore inadequate. On the basis of all the foregoing, I would order Respondent to unconditionally offer Sylak full reinstatement and make him whole for any loss of MORO MOTORS LTD. earnings until such time as it has tendered such an offer. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against any employee to discourage activities in support of International Industrial Production Employees Union, or any other labor organiza- tion. WE WILL, to the extent we have not already done so, give the employees named hereunder their old jobs back and we will pay them for the earnings they lost as a result of their having been discharged. These employees are: William Baffi Julio Gomez John Carr Samuel McDonnaugh James Gaffney Leonard Rossello James Sherman' WE WILL, upon application, offer John Sylak full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, all persons hired on or after January 9, 1974. WE WILL make Sylak whole for any loss of pay he may have suffered by reason of the discrimination against him. WE WILL recognize and bargain, upon request, with International Industrial Production Employ- ees Union as the exclusive bargaining representa- tive of all employees included in the description below about their wages, hours, and working conditions and, if agreement is reached, we will sign such agreement. The employees included are: All mechanics, service department and parts department employees, including porters and new car make ready men employed at our service shop and showroom in the town of Hempstead, New York, excluding office clerical employees, sales employees and all supervisors as defined in the Act. WE WILL NOT in any other manner interfere with the rights of employees to engage in organizational activities or in collective bargain- ing, or to refrain from such activities. MORO MOTORS LTD. DECISION STATEMENT OF THE CASE 195 ARNOLD ORDMAN, Administrative Law Judge: On January 10 and 18, 1974, the Charging Party, herein called the Union, filed unfair labor practice charges against Respondent. Pursuant to these charges a complaint issued on April 3, 1974, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. Specifically, the complaint recited that Respondent: (1) violated Section 8(a)(l) of the Act by interrogating its employees concerning their union membership, activities, and sympathies; (2) violated Section 8(a)(3) and (1) of the Act by discharging eight of its employees and by thereafter refusing to reinstate six of the eight, all because of their union and other protected concerted activities; and (3) violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as the exclusive representative of its mechanics, service department, and parts department employees, comprising an appropriate unit . Respondent's answer to the complaint, dated April 11, 1974, denied the commission of these unfair labor practices and denied further an additional allegation of the complaint that a strike of Respondent's employees beginning on or about January 8, 1974, constituted an unfair labor practice strike. Hearing on the controverted issues was conducted before me in Brooklyn, New York, on May 7, 8, and 9, 1974.1 At the close of the hearing General Counsel and Respondent submitted oral argument, General Counsel also submitted a written brief thereafter. Upon the entire record, upon my observation of the witnesses, and after due consideration of the arguments and brief, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent is a New York corporation with its principal office and place of business at 306 Main Street, Hemp- stead, New York, herein called the service shop, and another place of business at 280 Main Street in Hemp- stead, New York, herein called the showroom. Respondent is engaged at these locations in the retail sale, distribution, and repair of new and used automobiles and related products. During the past year, a representative period, Respondent derived from its business operations gross revenues in excess of $500,000, and received from out-of- state sources goods and products valued in excess of $50,000. The complaint alleges, Respondent admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The pleadings likewise establish and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. Jurisdiction is properly asserted in this proceeding. I A preheating conference was held before Admimstrative Law Judge Charles W. Schneider on April 22, 1974 The brief report of that conference - no evidence was submitted - is incorporated in the record of this proceeding. 1% DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE UNFAIR LABOR PRACTICES A. Background Virtually all the events here relevant occurred during January 1974. At the beginning of that month organiza- tional activity began among Respondent's employees. Within a few days a number of the employees signed authorization cards designating the Union as their bargain- ing representative. On January 7 the Union filed with the Board a petition for certification as bargaining representa- tive for a unit of Respondent's employees consisting of mechanics and service and parts department employees. Respondent received a copy of that petition on January 9. On January 8, however, Respondent held two meetings with its employees. Immediately following these meetings there were additional verbal interchanges between repre- sentatives of management and employees . Involved in these interchanges , also, was Lawrence Litman, a union official. During the course of the January 8 meetings and the ensuing conversations, Respondent, according to General Counsel, interrogated its employees concerning the Union, discharged eight employees because they were union adherents, and unlawfully refused to bargain with the Union. Respondent denies that it engaged in these unfair labor practices and adduced sharply controverting testimony as to the events on January 8. Determination of the issues in this case turns largely on resolutions of credibility as to what actually happened on January 8. The pertinent evidence in this regard, together with other evidence not in dispute, is set forth hereunder. B. The Evidence 1. Respondent's supervisory structure; makeup of the workforce During the period of time here under consideration, Respondent's supervisory hierarchy was headed by Mort Widen, Sr., president of the Company. Mort Widen, Jr., was secretary-treasurer. Manuel Koufman, whose role in these events is pivotal, was general consultant, adviser, and administrator of Respondent's business, having been retained by Respondent to act in that capacity in October 1973. Koufman was also on Respondent's board of directors. Michael Karlin was for a. while service manager in the service shop and was later promoted to general manager in that shop; Karlin's employment with Respon- dent ended on or about January 22, 1974. Included in Respondent's total working complement during this period were about a dozen employees classified as mechanics and service and parts department employees. Except for William Baffi, a mechanic in the new-and-used car department, all of these employees worked in the service shop at 306 Main Street. Baffi spent most of his working time in the showroom location at 280 Main Street with only an occasional work stint in the service shop. Respondent admitted at the hearing that the foregoing grouping constituted an appropriate unit for purposes of collective bargaining. Specifically , the complaint alleges, 2 Incorrectly designated in the complaint as John Sylack. Respondent admits, and I find, the following unit to be appropriate. All mechanics, service department and parts depart- ment employees of Respondent, including porters and new car make ready men, employed at its service shop and showroom, exclusive of office clerical employees, sales employees, and all supervisors as defined in Section 2(11) of the Act. Respondent and General Counsel are also in agreement, with one exception, as to the individuals who comprised the appropriate unit during the time here in issue. These individuals, 11 in number, are William Baffi, John Carr, Julio Gomez, Samuel McDonnaugh , Leonard Rossello, James Sherman, John Sylak,2 Bernard Woell, Henry Mason, Stuart Richardson, and Jessie Brown. The first seven named in this list are all mechanics and are alleged in the complaint to have been discriminatorily discharged on January 8 in violation of Section 8(a)(3) and (1) of the Act. The parties are in dispute as to the status of James Gaffney, the eighth employee alleged to have been discriminatorily discharged. General Counsel alleges that James Gaffney is a rank-and-file employee and is properly included in the appropriate unit, raising the complement of that unit to 12. Respondent contends that Gaffney is a supervisor within the meaning of the Act and hence ineligible for inclusion in the appropriate unit. James Gaffney was hired by Michael Karlin in July 1973. His job was that of service writer. As service writer, Gaffney's job was to meet customers , generally at the entrance to the service shop, listen to their requests and complaints concerning their vehicles, and write out the appropriate repair orders which were subsequently turned over to mechanics to do the necessary work. Gaffney would also price out the work from schedules prescribed in a flat rate book or other appropriate publication. Repair orders were normally posted on a rack in the service shop. The method of assignment of the repair orders to the mechanics was routine . Usually the first qualified mechanic who was available for assignment took or was given the repair order in the sequence in which it was posted. A repair order was occasionally assigned to a specific mechanic by name or where a mechanic was called on because he was the one who had earlier done work on a car and a complaint was made about that work. Aside from these purely routine matters , out-of-order assign- ments were made by Karlin, and only rarely by Gaffney in Karlin's absence and pursuant to the latter's instructions. Similarly, Gaffney occasionally ordered supplies and materials for the service shop but again only at Karlin's direction. As to Gaffney's relationships with the employees generally, the testimony was uniform that Gaffney neither had nor exercised the power to hire, fire , lay off, suspend, recall, transfer, promote or reward any employee or even to make effective recommendations in that regard . Authority in these respects was vested, generally, in Michael Karlin. Likewise, Gaffney did not have authority, and did not MORO MOTORS LTD. exercise any, with respect to granting overtime, maintain- ing order, or safety in the shop, with respect to overseeing the work of employees, instructing or reprimanding them in that regard, or with respect to reporting as to their performance or lack of it, or keeping any records in that regard. It was clear to the employees that their orders came from Karlin and that it was to Karlin they were to report if they wanted overtime or time off or wanted to call in sick. Gaffney played no role in these respects. Gaffney did not entertain grievances from employees. When management conducted meetings among its officials including meetings dealing with labor relations matters, Gaffney was not invited to, and did not attend, such meetings. In sum, Gaffney played no role, other than that of service writer, except on those occasions when Karlin was absent, and even then such extra functions as he performed were performed pursuant to Karlin's directions and instructions. Gaffney's status did differ from the mechanics in one respect. They were paid on a piece-work basis and their income was determined by the amount and type of work they did. Gaffney, however, like Karlin, was on a salary status. Unlike Karlin, though, Gaffney's salary did not include any share of Respondent's net profits. It was based, rather, on a $175 weekly wage plus a 1-percent commission on warranty work and overtime - which only Karlin, not Gaffney, could authorize - which added an average of $40 to $60 a month to Gaffney's base salary. Indeed, Gaffney's income from his work was less than that earned by the mechanics generally. On the other hand, Gaffney did receive a Christmas bonus - the record does not reveal the amount - which the mechanics did not receive. Significantly, however, Respondent did not in its payroll records list Gaffney under its listing for salaries of supervisors, a listing in which Karlin was included. Rather, Gaffney was listed with other employees in a section under the heading "other wages and salaries." Nor does it appears that Respondent's work force was ever informed by written notice, oral notice, or otherwise that Gaffney was a supervisor. On the basis of the foregoing evidence, essentially uncontroverted, and applying the criteria of supervisory status set forth in Section 2(11) of the Act, I find that James Gaffney did not have supervisory status within the meaning of the Act and is properly included within the unit hereinbefore stipulated by the parties and found by me to be appropriate. 2. The beginning of organizational activity Following some preliminary discussion among a few of Respondent's employees concerning unionization, Julio Gomez, a mechanic in Respondent's employ, arranged for a meeting at his home on the evening of January 2 and arranged also for Lawrence Litman, a union official, to be present. Gomez and Carr, also a mechanic, notified employees of the meeting. Present at the meeting were mechanics Gomez, Carr, Sherman, Baffi, Rossello and 3 There is also testimony in the record that employees were told that if recognition were granted by Respondent , resort to an election would not be required. 197 service-writer Gaffney. Litman, after some talk about union benefits and recognition, distributed union authori- zation cards which read: I hereby apply for membership in [Respondent ] Union, and authorize and designate the Union to represent me for collective bargaining with my employer. Litman explained that the cards would be used to support a petition to the Board for certification of the Union.3 Of the six employees present at the January 2 meeting, all but Sherman signed cards that evening and returned them to Litman. Within the next few days Sherman, Sylak, and McDonnaugh also signed cards, which were duly turned over to Litman. A ninth card was signed by employee Richardson on January 8 and was also given to Litman. In the meantime on January 7 the Union filed a petition with the Board's Regional Office asking for certification as bargaining representative for the employees in the support of the petition. Richardson's card, obtained January 8, was submitted later. Respondent received a copy of the petition for certification on January 9. 3. The meetings of January 8; the discharges On January 8, the day following the filing of the petition, Respondent's business administrator, Manuel Koufman, held two meetings with Respondent's mechanics. One meeting, at which lunch was provided, was held at noon; the second meeting at 4 p.m. Both meetings were held in Koufman's office, located in the service shop at 306 Main Street. The same group of mechanics was present at both meetings, specifically, Gomez, Carr, Baffi, Sherman, Sylak, McDonnaugh, and Rossello, seven in all. Gaffney, a service-writer, was not invited to, and did not attend, either meeting. Manuel Koufman spoke for management at both meetings. At the first meeting he was the sole representa- tive of management present. At the second meeting Koufman was joined by Mort Widen, Jr. As already noted, there is sharp contradiction in the record as what actually transpired at these two meetings and in the conversations which ensued immediately thereafter. Five of the mechanics present testified as to these matters; namely, Sherman, Sylak, Baffi, Carr, and Gomez.4 The pattern of their testimony is essentially consistent. It reveals that Koufman opened the noon meeting by announcing that he was going to discuss some changes to be made in the shop. Some of the mechanics had anticipated this situation and had determined that, to be fair, Koufman should be informed at the outset that they had enlisted in the Union. Accordingly, virtually at the outset of Koufman's remarks, Gomez interjected that all the employees present had signed union authorization 4 The other two mechanics present, Rossello and McDonnaugh, did not testify. General Counsel explained that they had not responded to subpenas he had served on them. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards and wanted the Union to represent them. Koufman was told the name of the Union .5 Koufman then spoke at length about his prior experiences, about good and bad unions, and then advised the employees that he would check into the union they had selected and let them know his decision. The mechanics were assembled in Koufman's office again at 4 p.m. This time Mort Widen, Jr., was also present. According to the mechanics, Koufman told them at this meeting that he had checked into the Union and would not accept it. Koufman stated further that if the employees wanted the Union they could either quit forthwith or give 2 weeks' notice. When Gomez told Koufman the employees would not quit, Koufman replied that they had no choice. Carr then took a quick informal poll of the employees present and they reaffirmed their desire to stick with the Union . Upon this demonstration Carr asked Koufman if this meant they were all fired and Koufman responded affirmatively that they were all fired. The employees then left Koufman 's office to proceed to their working spaces and pick up their tools. As the employees left Koufman's office they advised Karlin and Gaffney who were standing nearby that they had been fired for joining the Union. Karlin thereupon approached Koufman and Widen who had followed the men out of the office and, as Karlin testified, he asked Koufman and Widen what was going on. They told Karlin that all of the men had been fired for joining the Union. Karlin testified further that he then asked "What about Gaffney? He wants to be in the Union, too." Koufman replied, according to Karlin, "If he wants a union, he goes." Gaffney testified that he spoke to Widen on this occasion. Gaffney's testimony, corroborated by Baffi, is that he asked Widen if the men were fired for joining the Union, that Widen confirmed that fact; that he then told Widen that he also had joined the Union and whether that meant he also was fired ; and that Widen said "yes." While these events were transpiring, Lawrence Litman, the union representative who was being kept apprised by telephone of the day's developments, was on his way to the service shop. Litman arrived at or about 4:30 p.m. The employees were still at the shop but Koufman and Widen had already withdrawn from the area. Litman, in the presence of the employees, asked to see the owner. Presently Widen Jr. appeared. Litman introduced himself and asked why the men were being fired. Widen absented himself for a brief interval , then returned and asked Litman to accompany him to the office. Litman refused to do so unless the mechanics accompanied him. Thereupon Widen left and returned with Koufman and a conversation ensued between Litman and Koufman in the presence of the employees. In this conversation, according to the testimony of the employees and Litman, Litman identified himself to Koufman, told Koufman the employees had signed up with his Union and asked for recognition. Koufman replied, "You do what you have to do." Litman then asked Koufman why the employees were fired and whether it was S There was some testimony that Koufman asked the name of the Union. Gomez testified initially that Koufman also inquired as to why the for joining the Union. Koufman said he did not have to answer to Litman. Litman then suggested to Gomez that Gomez ask Koufman why he had been fired. When Gomez did so, Koufman said it was for stealing. Koufman then told Carr in response to the latter's query that Carr was discharged for conspiring to help Gomez steal . Koufman refused to answer any further inquiries and left the scene. The employees left also. There was no further communica- tion between Respondent and the Union. As noted, the evidence adduced by Respondent concern- ing the events of January 8 was in sharp contradiction to that presented by the witnesses for General Counsel. Manuel Koufman was Respondent's principal witness. On direct examination, Koufman explained that the noon meeting on January 8 had been arranged a week earlier and that the purpose of the meeting was to discuss a proposed change in insurance coverage for the employees. According to Koufman the meeting was very short in duration because Gomez as spokesman for the employees rejected the proposed change . Koufman denied that the Union was mentioned at the first meeting or that he had any knowledge of the Union at that time. Koufman testified that the second meeting, the 4 p.m. meeting, was called because he had decided to discharge Gomez, Carr, and Baffi and wanted Mort Widen, Jr., to confirm his decision and be present when he carried it out. Koufman stated that as soon as he started to announce his decision to the employees, Gomez interrupted and in- formed him that the men had joined a union and that Koufman would have to talk to a third party. Koufman said he would talk only to the employees and stated that he was firing the fellows who were connected with stealing parts. Gomez again interjected that the mechanics had joined a union and Koufman protested that this was the first he had heard of a union . Koufman went on to explain that he was firing the employees caught stealing and wanted the other employees to be aware of the situation. Koufman acknowledged that he then "lectured" the employees for being unappreciative and rude . The employ- ees persisted in their demand that he deal with the Union. Koufman replied, again at some length, that he had been dealing with unions all of his life. According to Koufman, all the employees present "snickered, sneered and then left." Koufman denied that the name of the Union was even stated. According to Koufman, the next event that occurred of relevance here was that he was informed by Mort Widen, Jr., about an hour after the meeting, that a "guy" whom Widen described as a "strong-arm" man was waiting outside the office to see Koufman . Koufman, who described the same individual as "quite amicable," said that the individual introduced himself, identified himself as being from the Union, said he represented the men and asked about the men being fired. Koufman testified that he replied, "What the hell business is it of yours?" and refused to talk to Litman, the individual in question. According to Koufman, Litman then told the men not to worry because the Union would take care of them and to pack up their employees had joined the Union but, confronted with a contrary statement in an earlier affidavit he had executed , retracted that testimony. MORO MOTORS LTD. tools and leave. The employees, Koufman testified, did leave. Koufman's testimony on cross-examination as to the events of January 8 varied somewhat from that he gave on direct examination. Confronted with inconsistencies, Koufman explained in several instances that his recollec- tion of precisely what was said or when was imprecise. However, in substance he adhered to the version he gave on direct examination. The only other witness presented by Respondent was Mort Widen, Jr. As noted, Widen was in attendance at the second meeting on January 8. According to Widen, Koufman and he had already discussed letting three of the mechanics go. According to Widen, the meeting was very brief. Koufman started to announce the impending discharges when Gomez got up and made a statement which, Widen testified, he interpreted as being "You can't do this because we are joining a Union." According to Widen, Koufman never got the chance to name the individuals being discharged. The mechanics walked out and Widen followed them. Widen denied telling Gaffney he was fired. He admitted calling Koufman from his office to meet Lawrence Litman. 4. Analysis and findings as to the events on January 8 The glaring discrepancies in the respective versions of the events on January 8 given by General Counsel's witnesses on the one hand and by Koufman and Widen on the other need no amplification. The question is one of credibility. If the testimony of Koufman, supplemented in part by that of Widen, is credited, then one must assume that the testimony of the five mechanics supplemented by the testimony of supervisor Karlin and Union Official Litman was wholly contrived. Conversely, if General Counsel's witnesses are credited, it follows that the testimony of Respondent's witnesses is suspect. Demeanor is a factor, of course, in such a determination. The testimony of the five mechanics and, in turn, the testimony of Karlin and Litman present, with minor differences, a consistent pattern. To believe that in each instance the testimony of each of these witnesses was contrived to present the same essential pattern throughout is improbable ; it strains credulity. On the other hand, except for the events at the second meeting and the events immediately thereafter, Koufman was the sole witness who presented a different version of the relevant happenings . Observation of Koufman and scrutiny of his testimony satisfies me that Koufman's testimony, though articulate, was verbose, evasive, and frequently unresponsive to the questions propounded unless and until pressed. Moreover, as is apparent from examination of the record Koufman's testimony on direct examination and on cross-examination was on occasion inconsistent with respect to the sequence of events and precisely what was said at the meetings. Koufman, 6 It is not clear from Koufman's testimony on this aspect of the matter whether he did or did not mention the names of the employees he was discharging at this meeting. Koufman's testimony was likewise inconsistent 199 confronted with these inconsistencies, pleaded uncertainty of recollection. Widen testified only as to the second meeting on January 8 and as to some of the matters ensuing immediately thereafter. As to the second meeting Widen testified that although Koufman had intended to and started to name the three individuals he was going to discharge for stealing, Widen's recollection was that Koufman never got the chance because of Gomez' interruptions.6 In this posture of the evidence, Respondent's contention that only three men were fired and that the remaining employees were not fired but walked out in protest against the firing of the three is quite suspect. As to the events following the second meeting, Koufman and Widen proffered testimony which was also in striking variance with the testimony of Litman and the employees who were present on the scene. On the basis of my observation of the witnesses, on an evaluation of their testimony, and on the surrounding circumstances, I find and conclude that the pattern of events occurring on January 8 was basically as described by General Counsel's witnesses and that the testimony of Koufman and Widen, to the extent it differs, cannot be credited. Specifically, I find that Koufman was apprised at the first meeting on January 8 that the employees present had joined the Union; that he announced at that first meeting that he would check out the Union and let the employees know; that at the second meeting he told the employees that he would not accept the Union and gave them the ultimation of abandoning the Union or quitting their employment; and that when the seven employees present indicated that they would neither abandon the Union nor quit their employment Koufman discharged them. I find further that immediately following that second meeting when Gaffney made known his adherence to the Union he was likewise discharged. 5. The evidence relating to Gomez, Carr, and Baffi and their complicity in stealing parts Respondent contended throughout the instant proceed- ing that it discharged only Gomez, Carr, and Baffi; the reason for that action was the complicity of three employees in stealing parts; and the remaining employees involved were not discharged but walked out in protest against the dismissal of the three named employees. While the findings heretofore made would appear to be diaposi- tive of this contention, the pertinent evidence relating thereto is summarized herein. On December 27, 1973, Gomez asked Service Manager Michael Karlin for permission to bring his wife's car into the service shop for repairs because the spark plugs and points which he had purchased from Respondent a month or two earlier had gone bad. Karlin granted the request. Under company policy then current, employees were permitted this privilege provided the work was done on their own time. Gomez then inquired of Karlin whether the plugs and points, made by Fiat, would be covered by a at precisely what point in the meeting Gomez raised the subject of the Union. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warranty. Gomez explained that he did not have the receipt for his previous purchase and Karlin told him the parts would be listed on a customer warranty repair order and Gomez could go ahead and obtain the parts. The effect of listing the parts on a warranty repair order is that Fiat would cover the cost at no expense to Respondent or to the customer whose repair order was utilized. Gomez brought the car into the service shop. He obtained the necessary parts, the value of which was about $12, from Richardson, the parts department employee, who had been instructed by Karlin to furnish them to Gomez. The cost for the parts was then applied to a warranty repair order for a customer named Thibeault and Karlin directed Gaffney to make the necessary entries on that order. Gomez began working on the car at 6:30 p. m. on his own time. He was assisted by Can who, also on his own time, did the tuneup work and worked on the distributor. Carr had nothing to do with obtaining the parts. Baffi's connection with the incident under consideration is that he had done the work which initially appeared on the Thibeault repair order. Baffi had nothing to do with the entry of the parts for the Gomez car on that repair order and had nothing to do with the procuring or installation of the parts in the Gomez car. While Gomez and Can were working on the car Manuel Koufman and Mort Widen, Jr., came over and asked Gomez what he was doing.? Gomez explained that he was working on his wife's car pursuant to permission granted him by Karlin. When Koufman asked where he had gotten the parts, Gomez told him he had gotten them from the parts department. According to Koufman, he was satisfied at that time from his own observation and that of Widen that Gomez had been "caught redhanded." Koufman's conclusion was that Can who was working with Gomez was also involved and that Baffi who had had custody of the Thibeault repair order on which the Gomez parts were subsequently entered was equally guilty of complicity. In any event, it is undisputed that later that night, December 27, Koufman called Karlin at home and asked if he knew that Gomez was working on a car and taking parts. Karlin testified that he did know and would explain the situation to Koufman the next morning. Karlin testified further that he did inform Koufman and Widen the next morning, December 28, that he had granted Gomez permission to bring in his car and replace the plugs. After some further discussion, it was decided that Gomez be required to pay for the plugs unless he produced a receipt for them. Gomez was unable to locate his receipt and did later pay for the parts. There is considerable conflict in the testimony as to whether within the next few days Koufman did or did not tell Gomez he would be fired and whether Koufman did on a date subsequent to the January 8 discharges instruct Karlin to fabricate a record to justify the discharges. Were resolution of these conflicts required, I would be inclined to credit the testimony of Karlin and the employees concerned rather than the testimony of Koufman and Widen. However, more significant in my view is that notwithstanding Koufman's assertion that he was satisfied on December 27 that he had caught Gomez "redhanded" and notwithstanding Koufman's professed - and I believe genuine - concern about the disappearance of parts from Respondent's inventory, the only action taken at the time was to require Gomez to pay for the parts he used unless he produced a receipt. The discharge of Gomez and his alleged accomplices did not occur until January 8, some 12 days later, in a situation where the primary topic under consideration was the affiliation of all the employees present with the Union. Persuasive in this regard also, although concededly not controlling, is a decision issued by a referee of the unemployment insurance section of the New York State Department of Labor, after hearing, allowing claims of Gomez, Baffi, and Gaffney for unemployment benefits, claims contested on the ground , inter alia, that the claimants had engaged in misconduct .8 The referee's decision, here granted in part, is self-explanatory: OPINION : I find that the claimants did not commit misconduct nor provoke their discharge within the meaning of the Unemployment Insurance Law. Credi- ble evidence is lacking that Gomez took parts without payment therefore [sic] and that the other two claimants entered into a conspiracy to effectuate such purpose. I find that their jobs terminated as a result of their joining a particular union. Additional doubt is cast on Respondent's assertion that it discharged Gomez, Can, and Baffi for stealing when it is noted that Karlin who candidly acknowledged that he authorized the doing of the work and the taking of the parts was not disciplined at all. In fact, shortly thereafter he received a raise. His later discharge, on January 22, took place after he had already given a 2-week notice that he was leaving Respondent's employ. On all the evidence of record I am satisfied, and find, that the claim that Gomez, Carr, and Baffi were discharged on January 8 because of their complicity in a theft of company parts the previous December 27 was a pretext to conceal the antiunion motivation for the discharge. I find further that these three individuals, like their five fellow employees, were all discharged because they refused to comply with Koufman's ultimatum to leave the Union. 6. The events following the discharges There is no dispute as to the events following the discharges. The eight discharged employees together with Litman agreed before leaving the plant to set up a picket line the following morning. This was done. The signs borne by the pickets bore the names of Respondent and the Union and indicated that an unfair labor practice lockout was in progress. There was no violence or other miscon- 7 Koufman testified that he was alerted by Stuart Richardson, the parts possible to remedy this situation which was a source of serious financial department employee, that Richardson had issued certain parts and was detriment in the operation of Respondent's business. suspicious about the circumstances of the request . The record is clear that s Carr also obtained unemployment benefits. So far as appears, his claim missing parts or pilferage of parts from the parts department was a major was not contested. concern of Respondent and that Koufman had determined to do everything MORO MOTORS LTD. 201 duct on the picket line which was maintained for about 1- 1/2 to 2 months after its inception on January 9.9 About the beginning of February Sylak , already em- ployed elsewhere, visited Respondent's place of business. While there, he was asked by Widen Jr. whether he would like to come back to work as Respondent was in a hole for mechanics. No mention was made by Widen that this generalized offer was to the job Sylak previously held or that it included backpay or other benefits normally accruing to a reinstated employee. McDonnaugh and Rossello, on the other hand, were admittedly reemployed on or about January 23, 1974. C. Concluding Findings As noted, the complaint alleges that Respondent violated Section 8(a)(l) of the Act by interrogating its employees concerning their union membership , activities, and sympa- thies; violated Section 8(aX3) and (1) of the Act by discharging eight employees because of their union and other protected activities ; and violated Section 8(aX5) and (1) of the Act by refusing to bargain with the Union as exclusive representative of its employees in an appropriate unit. The complaint additionally alleges that the strike of the employees beginning on January 9, 1974, was an unfair labor practice strike . At the hearing and in the brief subsequently filed, General Counsel urged that because of the flagrant nature of Respondent's unfair labor practices, a bargaining order should be incorporated in any remedy granted herein under the authority of N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 ( 1969). Turning first to the claim that Respondent independent- ly violated Section 8(axl) of the Act by interrogating the employees concerning their union sympathies, I find inadequate evidence to support that claim . The evidence does warrant a finding that Koufman did, at the first meeting on January 8, ask the employees the name of the Union they had joined . But this question followed on the heels of Gomez' announcement that the employees had joined the Union and wanted the Union to represent them. Under these circumstances it was quite natural for Koufman to inquire what Union they had joined. To label such an inquiry in such circumstances as coercive interrogation violative of Section 8(a)(1) of the Act is manifestly unwarranted. Indeed, General Counsel recog- nizing the inadequacy of its proof in this respect seeks to buttress its allegation by citing testimony that Koufman also asked on this occasion why the employees wanted to join the Union. However, the sole support for such a finding derives from direct examination of Gomez who on cross-examination retracted that testimony. I conclude, therefore, that the preponderance of the evidence does not support the allegation of the complaint that Respondent interrogated its employees in violation of Section 8(axl) of the Act.to 9 Gomez testified that on one occasion while he was on the picket line Koufman accused him of threatening employees and offered to take him out and "thrash" him. General Counsel acknowledged at the hearing that it was not alleging that this conduct by Koufman constituted a threat violative of the Act but did suggest that "it would go to the propriety of bargaining 10 The complaint contains no allegation , and General Counsel at the hearing expressly disclaimed any contention, that Respondent threatened Turning now to the allegation of the complaint that Respondent discriminatorily discharged the eight employ- ees named in complaint because of their Union and other concerted activities in violation of Section 8(a)(3) and (1) of the Act, I conclude on the basis of the evidence already summarized herein and the subsidiary findings made in that connection (see sections ii A, B1, B3, B4, and B5) that the allegation in question is adequately supported in the record. Specifically, I find that Respondent violated Section 8(a)(3) and (1) of the Act by discharging mechanics Baffi, Carr, Gomez, McDonnaugh, Rossello, Sherman, and Sylak, and service-writer Gaffney. I further find that the strike which followed on the heels of these discharges was in protest against that action and constituted an unfair labor practice strike. Remaining for consideration is the allegation of the complaint that Respondent violated Section 8(a)(5) and (1) of the Act by refusing, since on or about January 8, 1974, to recognize and bargain with the Union as the exclusive representative of its employees in an appropriate unit. In its brief to me, General Counsel urges that a finding of such a violation is fully warranted on the evidence in this case. Alternatively, General Counsel urges that even in the absence of an 8(a)(5) finding an order to bargain should issue because Respondent's conduct in discharging the employees was "so flagrant" and "so undermined the Union's status ... . Under well-settled Board authority a precondition to a finding of either an unlawful refusal to bargain or an order to bargain absent such finding is that the Union represent a majority of the employees in an appropriate unit. As already noted, Respondent stipulated and I have found that the unit previously described herein is appropriate (section II, B, 1, supra). The only disputed issue in that regard relates to James Gaffney who, Respondent con- tends, is a supervisor and hence ineligible for inclusion in the unit." For reasons already stated, I have found that Gaffney did not have supervisory status. Absent such status, Gaffney is properly included in the appropriate unit. The unii therefore consisted of 12 employees. As of January 7, 8 of these 12 employees (Gaffney was one of the 8) had signed authorization cards which on their face unequivocally designated the Union as the bargaining representative of the signatories. On that day, January 7, the Union filed its petition with the Board asking for certification as bargaining representative for the employees in the appropriate unit. A ninth employee, Richardson, signed a union authorization card the following day, January 8. It is obvious, therefore, that a clear majority of the employees comprising the appropriate unit had designated the Union as their bargaining representative when Kouf- man on the afternoon of January 8 announced that he employees in violation of Sec . 8(axl) of the Act. Accordingly, although Gomez testified that he was threatened by Koufman on one occasion while Gomez was on the picket line, that matter was not fully litigated and I predicate no finding on that testimony. 11 Respondent at the opening of the hearing raised a similar contention with respect to employee Bernard Woell. Later in the hearing, however, Respondent stipulated that Woell was properly included in the appropriate unit. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not accept the Union and discharged the union adherents en masse. Respondent challenges the validity of the signed authorization cards on the ground that they were obtained on the basis of representations that they would be used to obtain a Board election. Examination of the record does not persuade me that the employees were told that the sole purpose of the cards would be to obtain an election. The fact that they were used, and intended to be used, for the purpose of filing a petition for certification does not destroy their efficacy as valid designations of the Union as bargaining representative. I find that they were valid designations .12 Moreover, were there any doubt in this regard, such doubt would have been effectively dissipated when the seven employees present at the afternoon meeting of January 8 unmistakably demonstrat- ed to both Koufman and Widen Jr. their continued adherence to the Union in the face of an ultimatum to abandon the Union or quit their employment. Gaffney, immediately following the January 8 afternoon meeting, joined his seven fellow employees in that position. Respondent also denies that it received a request to recognize and bargain with the Union . Apart from the fact that the filing of a representation petition itself suffices to constitute a demand and continuing request for recogni- tion (Tri-County Tube, Inc., 194 NLRB 103, 105 (1971)) and authorities there cited), I have previously found that explicit requests for recognition were made by the employees at the January 8 meetings and by Union Official Lawrence Litman immediately thereafter.13 In view of this showing coupled with the mass discharge of the eight declared union adherents, the necessary ingredients for a finding of refusal to bargain in violation of Section 8(aX5) and (1) of the Act would appear to be present. But in view of the Board's recent declaration in Steel-Fab, Inc., 212 NLRB 363 (1974) a finding of an 8(aX5) violation "serves no real purpose" here. The short of the matter is that the Union did represent a majority of the employees. Certainly, it needs no extended discussion to demonstrate that the mass discharge of the eight declared union adherents - two-thirds of the complement comprising the appropriate unit - because of their refusal to abandon the Union would have such an impact upon the employees as to make highly unlikely - if not preclude altogether - the holding of a fair and free election. Accordingly, on settled authority the imposition of a bargaining order to remedy the unfair labor practices here found is amply justified without reliance on any prelimi- nary finding of an unlawful refusal to bargain. N.LR.B. v. Gissel Packing Co., supra,' Steel-Fab, Inc., supra. Accordingly I make no finding here of a Section 8(aX5) violation. On the other hand, I do find and conclude that the imposition of an order requiring Respondent to bargain with the Union as the exclusive representative of the employees in the unit found appropriate herein is proper and necessary to effectuate the remedial processes of the Act. See authorities cited supra CONCLUSIONS OF LAW 1. All mechanics, service department and parts depart- ment employees of Respondent, including porters and new-car make-ready men, employed at its service shop and showroom in the town of Hempstead, New York, exclusive of office clerical employees, sales employees and all supervisors as defined in Section 2(11) of the Act constitute a unit appropriate for purposes of collective bargaining. 2. James Gaffney does not have supervisory status within the meaning of Section 2(11) of the Act and is properly included as an employee within the unit found appropriate herein. 3. The Union during the period here relevant represent- ed a majority of the employees in the unit found appropriate herein. 4. By discharging employees William Baffi, John Carr, James Gaffney, Julio Gomez, Samuel McDonnaugh, Leonard Rossello, James Sherman, and John Sylak because they refused to abandon the Union, Respondent violated Section 8(aX3) and (1) of the Act. 5. The mass discharge of the union adherents herein named constitutes a flagrant unfair labor practice disrup- tive of conditions which would permit a fair and free election and warrants the imposition of an order directing Respondent to bargain with the Union as the exclusive representative of the employees comprising the unit found appropriate herein. 6. The strike of Respondent's employees on January 9, 1974, and thereafter was an unfair labor practice strike. 7. The unfair labor practices found herein affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Pursuant to the mandate of Section 10(c) of the Act, a cease-and-desist order will be entered against Respondent enjoining Respondent from engaging in the conduct found unlawful herein. Because that conduct was so flagrant and goes to the heart of the Act, it is fairly to be anticipated that Respondent may in the future resprt to other conduct violative of the Act to defeat the rights of its employees to organize and bargain collectively. Accordingly, Respon- dent will be directed to cease and desist from interfering in any manner with those employee rights. Affirmative relief is also appropriate here. Respondent will be directed to offer full reinstatement to the eight employees found herein to have been unlawfully dis- charged and to make them whole for lost earnings computed on a quarterly basis plus interest at 6 percent a year, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1%2), from the date of their wrongful termination to the date reinstatement is offered . To the extent Respondent has already complied with this affirmative requirement, Respondent will not be required to duplicate that action.14 For reasons already set forth, Respondent will be directed, 12 Respondent challenges the validity of Richardson's card on the majority status. ground that his signature was obtained by telling him that a majority of the 13 Indeed, Koufman in the course of his testimony acknowledged that employees had already signed cards. This was, of course, true and in any Litman stated to him on this occasion, "I represent these men." event the elimination of Richardson's card would not effect the Union's 14 The parties stipulated at the outset of the hearing that Respondent did MORO MOTORS LTD. 203 as part of its affirmative obligation, to recognize and bargain collectively with the Union as the exclusive representative of the employees in the unit found appropri- ate herein. The customary provisions regarding record- keeping, notice posting, and reporting requirements will also be included. Upon the foregoing findings of fact and conclusions of law, upon the entire record , and pursuant to Section 10(c) of the Act, I shall make the following recommended: ORDER 15 Respondent Moro Motors Ltd., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Industrial Production Employees Union, or any other labor organiza- tion, by discharging or otherwise discriminating against any of its employees in regard to hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to organize and bargain collectively as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from such activities. 2. Take the following affirmative action to effectuate the policies of the National Labor Relations Act, as amended: (a) Upon request, recognize and bargain with Interna- tional Industrial Production Employees Union as the exclusive collective-bargaining representative of the em- ployees in a unit consisting of all mechanics and service and parts department employees, including porters and new-car make-ready men, employed at its service shop and showroom in the town of Hempstead, New York, exclud- ing office clerical employees, sales employees, and all supervisors as defined in Section 2(11) of the Act respecting rates of pay, wages, hours, or other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Offer the employees named hereunder, to the extent this has not already been done, immediate reinstatement to their former jobs, or if such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges and make the named employees whole for lost earnings in the manner set forth in the portion of this Decision entitled "Remedy." These employees are: William Baffi Samuel McDonnaugh John Carr Leonard Rossello James Gaffney James Sherman Julio Gomez John Sylak (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to compute the amount of lost earnings due under the terms of this Order. (d) Post at its service shop and showroom at Hempstead, New York, copies of the attached notice marked "Appen- dix." 16 Copies of the notice, on forms, provided by the Regional Director for Region 29, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable care shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint in this proceeding be dismissed insofar as it alleges unfair labor practices not found herein. "reemploy" employees McDonnaugh and Rossello . The extent to which this constitutes "reinstatement" within the meaning of this Order and the impact of that action on the "make-whole" provision can be determined, if required, in subsequent compliance proceedings. 15 In the event no exceptions are filed as provided in 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. 16 In the event the Board's Order in 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."