Bob Estes

BOB ESTES, A CORPORATION 695 Bob Estes, a Corporation and Houston McNamara, Eugene R. Gladu, Adrion L. Osborne, and Robert B. Roberts. Cases 31-CA-4840, 31-CA-4970, 31-CA-5121, and 31-CA-5329 February 2, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On October 29, 1975, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, General Counsel," Respon- dent, and Charging Party Gladu filed exceptions and General Counsel and Respondent filed 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, except as modified below, of the Ad- ministrative Law Judge and to adopt his recom- mended Order. We find merit in General Counsel's ,exception- to the Administrative Law Judge's finding that Respon- dent discharged Charging Party McNamara on Oc- tober 18, 1974, rather than October 22, 1974, as Gen- eral Counsel alleges. Robert S. ' Estes, the president of Respondent, is involved in two business enterprises. He is-president of ' Bob Estes Corporation (herein Respondent) which operates Lincoln-Mercury and Subaru automobile dealerships; he is also sole owner of Estes Devel- opment Company (herein Development Company), a n®ncorporate enterprise which is engaged, inter alia, in the upkeep and display of classic cars. In early October 1974, Estes, 'in an effort to remove union adherent McNamara from the bargaining unit so as to prevent him from voting in the upcoming Novem- ber representation election, informed McNamara that owing to a business slowdown in-the service de- partment of Respondent's Subaru dealership, Mc- Namara, a Subaru mechanic, would be laid off in the near future. However, at that time Estes did offer McNamara a chance to transfer to his Development "Charging Party Gladu has excepted to certain credibility findings made by the Administrative Law Judge Ibis the Board's established policy not to overrule an Adaunistrative 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 (CA 3, 1951). We have carefully examined the record and find'no basis for reversing his findings. Company to work on classic cars. McNamara ex- pressed a desire to work on classic cars, but not if he had to transfer'to the Development Company in the process. In the ensuing several days, while McNam- ara continued working for Respondent, Estes ap- proached him on numerous occasions and renewed his offer to transfer him-to the Development Compa- ny. Each time, McNamara refused. Finally, on Octo- ber 22, Estes confronted McNamara with the choice of either working on classic cars as an employee of the Development Company or immediately turning in his uniform and leaving the premises. When Mc- Namara asked one more time if he could remain with Respondent while working on classic cars, Estes in- formed him that he had already been "transferred to the Development Company as of October 18, and since then had been "on loan" to Respondent to per- form last-minute Subaru repair work. McNamara then told him he would quit rather than transfer to the Development Company, whereupon Estes in- structed McNamara to see his supervisor, Service Manager de la Cuadra who would handle the admin- istrative aspects of his termination. We agree with General --Counsel that the effective date of McNamara's unlawful discharge from the employment of Respondent was October 22, 1974, not October 18 when he was administratively trans- ferred to,the payroll of the Development Company. That McNamara was an employee of Respondent until October 22, is clearly borne out by the record. Respondent itself admitted in paragraph VIII of its Answer to Consolidated Amended Complaint that McNamara "was technically terminated on October 22, 1974, from respondent but was offered other em- ployment with another company owned by Respon- dent or Respondent's president." (Emphasis sup- plied.) Furthermore, during the hearing, Estes testified on direct examination that on October 22, he offered McNamara - the same pay on the same premises, "and the only difference would be that you will be working for me and will receive your paychecks through Estes Development Company." (Emphasis supplied.) We also note that between October 18 and 22, McNamara performed the same unit work for Respondent as he had done in the past. He contin- ued to wear the same mechanic's uniforms as other Respondent employees and continued working on the same premises. Finally, at, the end of the October 22 conversation, Estes instructed McNamara to talk to Bruce de la Cuadra, Respondent's service manag- er and McNamara's supervisor, so as to work out the administrative details of McNamara's separation. To the extent Estes may have administratively "transfer- red" McNamara to the Development Company as of October 18, and then "loaned" him back to the Re- 222 NLRB No. 111 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent to do unit work, we regard this as a paper transaction, a "transfer" in name only. All available evidence, the pleadings, the conduct of the parties, and Estes' own testimony, convinces us that in reality McNamara continued in the employment of Respon- dent until October 22, at which time he was dis- charged by Respondent because of his Union activi- ties. THE REMEDY Respondent shall be ordered to cease and desist from engaging in the unfair labor practices found herein and take certain affirmative action as provid- ed in the Order below, designed to effectuate the pol- icies of the Act. It having been found that Houston McNamara was unlawfully discharged on October 22, 1974, Re- spondent will be ordered to offer him immediate and full reinstatement to his former job, or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. Respondent will further be ordered to reimburse him for any loss of pay he may have suf- fered as a result of its discriminatory action against him in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, 291-293 (1950), together with 6-percent interest thereon in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962).2 It will be further recommended that Respondent be required to expunge from Eugene Gladu's person- nel records the written warning notice it issued to him on October 3, 1974. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusions of Law 4 in the Administrative Law Judge's Decision: "4. Respondent violated Section 8(a)(3) and (1) of the Act on October 22, 1974, by discharging Houston McNamara." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent, Bob Estes, a Corporation, Inglewood, California, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. 2 Having found that McNamara was not transferred to the Development Company on October 18, but remained in Respondent's employment until his unlawful discharge on October 22, we, unlike the Administrative Law Judge, see no reason why the failure to make Estes Development Company a party to this proceeding should be considered during the compliance stage in this case, as to its effect on backpay due to McNamara. Respondent's backpay liability runs from October 22, 1974, the date it unlawfully dis- charged McNamara in violation of Sec. 8(a)(3) of the Act. DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based on a charge filed in Case 31-CA-4840 on October 29, 1974, by Houston McNamara, a charge filed in Case 31-CA-4970 on December 30, 1974, by Eugene R. Gladu, and an Order consolidating said cases, a consolidated complaint herein was issued on January 24, 1975. Said complaint alleges that Bob Estes, a Corporation,' hereinafter referred to as the Respondent or the Company, violated Section 8(a)(1) and (3) of the Act. Respondent, by its answer, denies that it engaged in conduct violative of the Act as alleged. Pursuant to notice, a hearing was held in Los Angeles, California, on February 20 and 21, 1975. Appearances were entered on behalf of General Counsel and Respon- dent. Briefs with respect to the aforementioned two cases were filed by said parties which have been fully considered. Based on a charge filed by Adnon L. Osborne, an indi- vidual, in Case 31-CA-5121 on March 5, 1975, as amended on April 7, 1975, a complaint was issued on April 28, 1975. Said complaint alleges that the Respondent violated Sec- tion 8(a)(4) and (1) of the Act. By its answer, Respondent denies that it engaged in the unfair labor practices alleged therein. By motion dated May 7, 1975, General Counsel moved to reopen the record in Cases 31-CA-4840 and 31-CA-4970 and consolidate with said cases for hearing Case 31-CA-5121. On May 15, 1975, I issued an order granting said motion. Based on a charge filed by Robert B. Roberts, an indi- vidual, in Case 31-CA-5329, on May 29, 1975, a complaint was issued on July 10, 1975. Said complaint alleges that Respondent violated Section 8(a)(4), (3), and (1) of the Act. By its answer, Respondent denies that it engaged in the unfair labor practices alleged therein. By motion dated July 17, 1975, General Counsel again filed a motion to reopen the record in Cases 31-CA-4840 and 31-CA-4970 to further consolidate for hearing with said cases Case 3l-CA-5329. By an order issued on July 29, 1975, I grant- ed such motion. Pursuant to notice, a hearing was held in Los Angeles, California, on August 5, 1975, for the purpose of taking evidence relating to Cases 31-CA-5121 and 31-CA-5329. At the start of the hearing, however, General Counsel pre- sented a withdrawal request from Osborne and moved to dismiss the complaint in Case 31-CA-5121. The request to withdraw the charge in said case and the motion to dismiss the complaint therein was granted. Therefore, this decision relates only to Cases 31-CA-4840, 4970, and 5329. Supplemental briefs were filed by the General Counsel and Respondent which have been fully considered. i "A Corporation" is added to the title to clarify that Respondent is a corporation, not an individual. BOB ESTES, A CORPORATION Based on the entire record 2 in this proceeding and my observations of the witnesses as they testified, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is now, and at all times material has been, a California corporation with its offices and principal place of business located at Inglewood, California, where it is engaged in the retail sale and service of automobiles. Re- spondent, in the normal course and conduct of its business operations, annually derives gross revenues in excess of $500,000 and annually purchases and receives goods val- ued in excess of $50,000 directly from suppliers located outside the State of California. As is admitted by the Respondent, it is now, and has been at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW, herein called the Union, is now, and at all times material has been, a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Information Based on stipulation of the parties received as an exhibit at the start of the hearing, it is found as follows: 1. On September 16, 1974, Respondent received a letter dated September 13, 1974, from the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW, herein called the Union, claiming that a majority of Respondent's employees in an appropriate bargaining unit consisting of all service me- chanic personnel and all service-related personnel had des- ignated the Union as their exclusive representative for col- lective-bargaining purposes and requesting recognition and bargaining. 2. On or about September 20 or 23, 1974, Respondent received a notice of filing of petition in Case 31-RC-2954 which contained as an enclosure a copy of the petition filed in that case on September 19, 1974. 3. On September 23, 1974, Respondent received a letter dated September 20, 1974, from the Union naming three employees of Respondent as "Volunteer Organizers" for the Union; namely, Robert B. Roberts, Eugene Gladu, and James Lunsford. 4. On October 8. 1974, Respondent received from the Union a letter dated October 7, 1974, objecting to Respondent's having issued a warning notice to Eugene Gladu, dated October 3, 1974. 2 Certain errors in the transcript are hereby noted and corrected. 697 5. On October 18, 1974, Respondent and the Union en- tered into a Stipulation for Certification Upon Consent Election in Case 31-RC-2954 for an election to be held on November 14, 1974. The stipulation, which was approved by the Regional Director on October 18, 1974, provided, among other things, that the payroll period ending October 21, 1974, would be the payroll period for eligibility and that among the classifications in the appropriate bargain- ing unit would be "All mechanics and helpers ... new car get ready men, used car mechanics and helpers...." 6. On November 14, 1974, a Board-conducted election was held pursuant to the Stipulation for Certification Upon Consent Election, and the Union lost .3 7. In or about the month of November 1974, Respon- dent made a statement to the California Employment De- velopment Department, in opposing a claim for unemploy- ment insurance by Houston McNamara, essentially as follows: Due to lack of work McNamara was given the alter- native which was working on automobiles for another company of Mr. Estes on the same premises at the same salary-it was Mr. McNamara's decision to re- sign. 8. By letter of October 8, 1974, from Respondent's attor- ney to the Union, in response to the Union's letter of Octo- ber 7 mentioned in paragraph 4 above, Respondent denied any effort to coerce and intimidate employees generally or Mr. Gladu in particular in their rights under the National Labor Relations Act, as amended, and stated that Mr. Gla- du had violated established company rules and had been warned that such violations would not be tolerated in the future. B. The Issues Set forth hereinbelow in chronological order are the alle- gations in the complaints of the unfair labor practices of Respondent. 1. On or about September 15, 1974, Respondent in- creased employees' wage rates to dissuade them from sup- porting the Union. It appears, however, that the record will not support this allegation,4 and, in his brief, the General Counsel concedes that dismissal of this allegation is war- ranted. Consequently, it is concluded that General Counsel has failed to prove by a preponderance of the evidence this allegation and in the recommended Order hereinbelow it will, therefore, be dismissed. 2. Although it is alleged to have occurred on September 10, 1974, it appears from the record that the testimony relating to this allegation is with respect to an incident which occurred on or about September 19. The allegation is that Respondent, by Robert Estes, owner and president of Respondent, violated Section 8(a)(1) of the Act by inter- rogating an employee regarding his union sympathies and activities and those of other employees. 3 The tally was 26 votes against the Union and 10 votes for the Union Further, it appears no objections were filed to the conduct of the election and the results were certified by the Board. 4It Is found that said wage increases were put into effect before Respon- dent had any knowledge of union activity. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. On or about October 3, 1974, Respondent gave a writ- ten warning to an employee because of his union activities. 4. During the month of October .1974, Respondent, by Bruce de la Cuadra, Respondent's service manager and an admitted supervisor, violated Section 8(a)(1) of the Act by interrogating an employee about his union activities and those of other employees. 5. At various times between mid-October to mid-No- vember 1974 Respondent violated Section 8(a)(1) of the Act by soliciting grievances from employees and promising them benefits to restrain them from supporting the Union. 6. On or about October 18, 1974, Respondent in viola- tion of Section 8(a)(3) and (1) of the Act transferred em- ployee Houston McNamara to another company owned by Estes. 7. On or about October 22, 1974, Respondent in viola- tion of Section 8(a)(3) and (1) of the Act discharged Mc- Namara. 8. On or about December 26, 1974, Respondent, in vio- lation of Section 8(a)(3) and (1) of the Act, discharged Eu- gene Gladu. 9. On or about December 1, 1974, and again on or about December 31, 1974, Respondent, through Uwe Nissen, Respondent's dispatcher and shop foreman who is admit- tedly a supervisor, unlawfully interrogated Robert Roberts concerning his union sympathies and activities. 10. On or about December 31, 1974, Respondent, through Nissen, violated Section 8(a)(1) of the Act by, soli- citing Roberts to abandon his union activities and beliefs. 11. On or about January, 2, 1975, Respondent through Nissen violated Section 8(a)(1) of the Act by threatening to discharge Roberts and to prevent him from obtaining other employment unless he abandoned his union activities and beliefs. 12. On or about February 21, 1975, Respondent, through Nissen, violated Section 8(a)(1) of the Act by ad- vising Roberts that he would not be allowed to .return to work without first securing a doctor's certificate. 13. On or about February 24, 1975, Respondent, through Nissen, violated Section 8(a)(1) of the Act by curs- ing and threatening Roberts regarding his testimony as a witness in the earlier hearing in this proceeding. 14. Between the period of February 24, 1975, through approximately March 3, 1975, Respondent, through Nis- sen, violated Section 8(a)(4), (3) and (1) of the Act by refus- ing to assign work to Roberts. 15. On or about May 19, 1975, Respondent violated Section 8(a)(4), (3) and (1) of the Act by constructively discharging Roberts. As previously stated, Respondent, by its answer, denies the allegations of unlawful conduct hereinabove set forth. C. Resolution of the Issues The following is a study of the testimony'relating to the above outlined allegations and a resolution of the issues involved. Re 1: As stated hereinabove, this allegation has not been sustained. Re 2: Lunsford credibly testifed that there was a meet- ing with a union representative on September 18 and that on the following day 10 to 15 employees started wearing union buttons including Gladu, Roberts, McNamara, and himself. Gladu testified that Estes approached him at his work place and saw that he was wearing a button. It appears that this occurred on or about September 19. His testimony as to what then occurred is as follows-, Mr. Estes come to me,and shake the union button and says, "Why do you do this to me?" I says, "Mr. Estes, that's for the benefits, your deal- ership and the employees in general." He says, "How many of you guys carried that but- ton?" I says, "Mr. Estes, go find out yourself." Then after that Mr. Estes says, "If you want a war, I give you a war, pig." I says, "Mr. Estes, I am not a pig. I am the same man before I was carrying the button: ' Before he left, he says, "I hope you win the war. If you are not, your days, are counted." Estes, in testifying about the incident, denied that he shook Gladu's button, that he threatened Gladu with war, or that he called him a pig. His testimony as to what oc- curred is as follows: I walked up to Mr. Gladu in the shop one morning when I suddenly saw union buttons around and I pointed to the button and I said, "Gene, what is this?" He said, "Don't you know what it is?" I said, `I am looking at it." I just pointed to it and I was shocked, somewhat set back to see this and asked him what it was all about and he proceeded to tell me that this was the thing the shop-needed and it was the best thing as far as he was concerned; that everybody go union and I just shook my head and at that point told him I felt he was mistaken and walked away. There is no indication why, of the various employees who were wearing union buttons, Estes would have singled out only Gladu to threaten about-wearing the union but- ton. Of the two witnesses as to the incident, Estes was the more convincing and, therefore, his version of what oc- curred is credited 5 Even though the allegation contains no reference to threats by Estes, the matter was fully litigated and, therefore, it appears appropriate to make a finding also with respect thereto. Based on the credited testimony, it is found that the General Counsel has failed to prove by a preponderance of the evidence that on or about October 19, 1974, the Respondent, through the conduct- of Estes, unlawfully threatened or unlawfully interrogated Gladu. Re 3. On October 3, Respondent issued a written notice to Gladu signed by de in Cuadra warning him that he would be subject to discharge or disciplinary action if he did not adhere to established working hours and that any 5 It is noted that the allegation with respect to the incident does not refer to any threat 'but only to interrogation and the only bit of interrogation to which Gladu testified was the question of "how many of you guys carried that button " Even if that testimony were credited, it does not appear that the question could be considered coercive since it was with respect to overt actions of the other employees which Estes was able to readily observe for himself BOB ESTES, A CORPORATION time off must be authorized by himself (de la Cuadra) 24 hours in advance. Gladu credibly testified that he had sus- tained a back injury on the job a couple of years prior thereto and that he occasionally left work early for medical treatment for it, but that he always received permission from de la Cuadra or Nissen before leaving. De la Cuadra testified as follows as to the reason for giving him the warning notice: The warning notice was because he had a bad habit of telling me, "I am going to be leaving in an hour or two for the doctor." This got a little old. I told him, "I would like to know in advance when you are going to be leaving, because we load the - shop." By .loading the shop, we take a certain amount of jobs and we have -to get them out that evening and if I did not know in• the morning ahead of time I would not be able to advise my service adviser. They will write up service and here is a man telling me he has to go. I told him verbally two or three times and evidently it didn't sink in, so ,l thought it would be necessary for me to spell it out, which I did. Gladu testified' without contradiction, and his testimony is credited, that de la Cuadra gave him permission most of the time and told him, "I don't have to give you all the permission. Just go to the dispatch office. Soon the dis- patch officer know you are clear, they will let you, go." He also credibly testified that he never left without permission. He further testified that in the . 6 years that he worked for Respondent, he did not observe or hear of any other em- ployee receiving a written warning notice. Respondent did not introduce any testimony that it did, in fact, follow the practice of issuing written warning no- tices. In view of the timing of the written warning notice, approximately 2 weeks after Respondent had received a letter from the Union notifying ' Respondent that Gladu was one of the three employees who would act as "volun- teer organizers" for the Union, and the long practice of permitting Gladu to leave early by getting permission from de la Cuadra or the dispatcher and the failure of Respon- dent to show that he in fact left early without permission or that some incident occurred which precipitated the warn- ing notice, it is concluded that the written warning notice (altering the long practice with regard to Gladu's leaving early) was motivated by Gladu's union activity and, conse- quently, it is found that it was violative of Section 8(a)(1) of the Act. De la Cuadra's testimony as to the reason he had to have 24 hours notice is not persuasive inasmuch as it appears that Gladu received permission before leaving and it is inferred that it was granted because Gladu was not needed. Re 4: This allegation of unlawful interrogation relates to a conversation between de la Cuadra and Osborne. Os- borne started to work as an apprentice mechanic in Respondent's Subaru service department, also referred to as the "corner store" 6 on October 9, 1974 . On direct exam- 699 mation; Osborne testified that the conversation occurred after he was employed about a week or two and before McNamara left Respondent's employ. McNamara left Respondent's employ on or about October 22, therefore, the conversation must have occurred in mid -October 1974. Osborne testified as follows to the conversation: He asked me if I knew about the union . I said, "Yes." He asked if anybody in the Subaru department had spoken to me about the union. I said, "Yes." I told him who; that Mack had spo- ken to me a little bit about the union . That's pretty much that I remember about it. Subsequently, Osborne identified "Mack" as McNamara and he further testified that he told de la Cuadra that Rob- erts had also spoken to him about the Union . He also testi- fied that he told him his own thoughts about the Union to the effect that he "really didn't care too much for it" and that he was "undecided." On cross-examination, he testi- fied that de la Cuadra did not ask him how he felt about the Union but that he volunteered the information as to how he felt about the Union. He further testified that while he was asked if anyone had talked to him about the Union, de la Cuadra did not ask him who they were, but that he volunteered the information as to their identity. De la Cuadra testified that Osborne came to his office to talk about going to the Subaru school and that he made a statement to Osborne that "it looks like everybody wants the Union," whereupon Osborne volunteered the informa- tion as to "who was involved, who approached him and everything." De la Cuadra denied that he asked him the question of whether he knew about the Union or the ques- tion of whether anyone had talked to him about the Union. Osborne was the more convincing witness as to this inci- dent and moreover it appears unlikely that he would have volunteered all the information he gave de la Cuadra in response to merely a casual remark that "it looks like ev- erybody wants the Union." Based on Osborne's'credited testimony it is found that Respondent violated Section 8(a)(1) of the Act by de la Cuadra's unlawful interrogation as to whether anyone had talked to him about the Union which clearly indicated that he was seeking information about his and his fellow employees' union activities. Re 5: It appears from credited testimony Estes held two meetings with the approximately 40 employees in the bar- gaining unit sought by the Union, the first on October 15 and the other a few days before the election on November 14. Lunsford credibly testified as to what Estes stated at the first meeting as follows: I don't recall the exact words, but in essence it was he was saying that we have been trying to organize the shop and he did not feel that we needed a union in the shop ; that he, Mr. Estes, could handle any problems that we might have there in the shop. * 6 ly serviced It appears that an overflow in the latter part of'the shop was This service department is located in a different area of Respondent's handled in the corner store area and that after the Subaru service was premises from that where the Lincoln-Mercury and larger cars were normal - dropped, it handled the lighter work on the bigger cars. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE WITNESS: He said he could handle any problems that came up. He has an open door policy. If we have any gripes or complaints, come to him with them and he will take care of them, but he didn't need the union. Roberts also testified as to Estes' statements and his tes- timony essentially corroborated that of Lunsford. Roberts further testified that prior to the meeting he had brought to Estes' attention that some of the equipment needed repair and that Estes asked him to make a list of the equipment that needed repair, that at the meeting Estes told the em- ployees that he had learned that some of the equipment needed repair and had asked Roberts to make a list for him, and that he presented it to Estes at the meeting. Rob- erts testified in addition that several days after the meeting Estes asked him if the equipment that had been repaired was functioning properly and he told Estes that it was. It appears also that at the first meeting that one of the employees complained that the insurance program was not paying for some surgery he had and another employee complained about a claim he had that was not paid and Estes told Marie Langdon, Respondent's controller who was at the meeting, to look into the matter. Roberts further testified without contradiction, and his testimony is credited, that, when Estes asked him if the equipment had been repaired, he also asked him if he knew of anyone else who was having difficulty with the insur- ance or any problem at all and stated that, if he did, that his (Estes') door was open to discuss these matters. Roberts testified as follows to the second meeting: It appeared to me that Mr. Estes read from a state- ment, a piece of paper. He stated that-I believe he gave the date of the election, that there was going to be an election and although we had filled out authorization cards for the UAW, that we didn't have to vote for the UAW and we could vote No and we should vote No. They felt that-again, I think he stated that unions only wanted our money; they didn't want to do any- thing for us other than get our money. That was the feeling I got. At this particular meeting there wasn't any conver- sation allowed between the audience and Mr. Estes. I'think Mr. Fredericks stated that there would be no reprisals because of the election and the union activi- ty. Both Lunsford and Roberts testified without contradic- tion, and their testimony is credited, that before the union organizing campaign that neither Estes nor de la Cuadra had ever solicited complaints from them or talked to other employees in their presence about complaints . Respondent offered no evidence of previous solicitations. The Board stated in ITT Telecommunications, a Division of International Telephone and Telegraph Corporation, 183 NLRB 1129 (1970): The solicitation of employee grievances by an em- ployer is not illegal unless accompanied by an express or implied promise of benefits specifically aimed at interfering with, restraining , and coercing employees in their organizational effort. It appears from the above testimony which is credited that not only did Estes solicit employee grievances but by his statements impliedly promised redress of grievances with respect to terms and conditions of their employment aimed at interfering with, restraining, and coercing them in their organizational efforts? Consequently, it is concluded that the General Counsel has proved by a preponderance of the evidence that Respondent violated Section 8(a)(1) of the Act in mid-October by soliciting grievances from employ- ees and imphedly promising them redress thereof to re- strain them from supporting the Union. Re 6 and 7: McNamara commenced working for Re- spondent in November 1973 as a mechanic in the Lincoln- Mercury service department and was transferred to the Su- baru service department (or "corner store") on May 1, 1974, after having attended Subaru school in March or April 1974 and obtaining a certificate from said school. He worked in the Subaru service department with only one other mechanic until Osborne was hired on October 9. Occasionally, at Estes' request McNamara worked on clas- sic cars (also referred to throughout the proceeding as an- tique cars), a collection of which was owned by Estes under the trade name of Estes Development Company. Said com- pany is also involved in various ventures including land development and it is a sole proprietorship. McNamara was paid at an hourly rate and not on a commission basis. It is noted that McNamara was one of those who wore a union button on his shirt pocket and that Osborne told de la Cuadra that McNamara was one of the two employees who had spoken to him about the Union. It appears that Estes Development Company had two em- ployees, one full time and one part time, and that the full- time employee was James Cowan (sometimes referred to in the transcript as Collins) who died in September 1974. It also appears that various employees of Respondent other than McNamara also occasionally worked on the classic cars at Estes' request and were also paid for their work by checks from Respondent. It further appears that on Octo- ber 1 I Estes talked with McNamara and told him Cowan had died and that he wanted McNamara to work on the classic cars and he would be transferred to the Estes Devel- opment Company. McNamara told him that they were busy in the Subaru service department, that he preferred staying, that he would work on the classic cars, if he could stay with the Respondent, and that Estes replied that he would have to transfer to the Development Company. Estes' testimony as to their conversation is not inconsistent with the testimony of McNamara. Estes, however, further testified that he told McNamara that the Subaru operation was losing money and that he was going to have to make 7 It is clear from the credited testimony of Estes ' statement at the first meeting that he was attempting to persuade employees that they did not need the Union to protect their interests and implied that they could obtain corrections of their problems or redress of their grievances through him, Estes, and that they did not need the aid of the Union to accomplish this. This was followed by a solicitation of Roberts to refer any employee who had any problem to Estes. In reaching the above conclusion, I do not rely on the repairing of equipment which was instigated by Roberts or on Estes' instructions to Langdon to look into the failure of the insurance company to pay employees' claims Also, it does not appear that Respondent violated the Act by any statement Estes made at the second meeting. BOB ESTES, A CORPORATION some reduction in force, that he did not want to let Mc- Namara go because of his ability as a mechanic, and that he would have the same wages and fringe benefits after transferring to the Development Company as he had with Respondent. In addition, Estes testified that he told Mc- Namara that if he would not accept the transfer, he would have to let him go because of the economic conditions in the Subaru department. According to McNamara's cred- ited testimony, he told Estes on October 14 that he had thought it over and that he did not want to "change com- panies." It appears that at the first meeting of employees (dis- cussed hereinabove) on October 15, Roberts stated to Estes that McNamara felt that he was being pulled out of the Subaru department because of his union activities which Estes denied and stated that he needed McNamara to work on the classic cars because of Cowan's death. McNamara credibly testified that he told Estes that he did not want to change companies because then he would not have a chance to vote (in the union election) and Estes replied that "that is right." McNamara continued to work in the Subaru service de- partment on Respondent's jobs and on the morning of Oc- tober 22, while he was working in said department, Estes approached him and asked him if they were getting caught up, to which McNamara replied that there was still work to do in the department. Estes indicated that he needed Mc- Namara to move some of the classic cars and McNamara asked him if he had arranged it so he could work on the classic cars and stay with Respondent. Estes replied that he had not and that, as a matter of fact, he (McNamara) had been transferred several days before to the Development Company and "was on loan to the Subaru Department to help them get caught up." According to McNamara's testi- mony the conversation then continued as follows: I said, "Don't you think that's awful unfair?" He said, "I don't care what you think. You will do as I say or else you won't be working anywhere." I said, "You mean that if I don't accept working on the antique cars that I won't be able to, get a job any- where?" He said, "Not if I have anything to say about it, you won't." Then he says, "I am telling you, either you work on the antique cars or turn in your uniforms. It is as sim- ple as that." Also, according to McNamara's testimony, he had a subsequent conversation a couple of hours later with Estes. His testimony as to that conversation is as follows: Mr. Estes and Mr. de la Cuadra come in the door and Mr. Estes called out to me and said, "Mack, Bruce tells me you are not going to work on these antique cars; is that right?" And I said, "Yes, sir." Then he says, "Well, that's it, then. You might as well turn in your uniforms." He asked me about my uniforms, whether I had them all there and I said, "No. I have one on and some in the car." He said for me to go home and change out of the 701 uniform and bring my uniforms back in. I asked what about my check. Mr. de la Cuadra said, "Bring your uniforms in and we will give you your check." Estes testified with respect to the second conversation on October 22. His testimony as to that conversation is as follows: And he said to me, "I told you that I was willing to do this work, but that I wanted to stay on the Estes payroll, Bob Estes." I told him again that this was impossible and told him the reason why it was impossible and he said, "Well, f am not going to do it any other way. I am going to do it the way I am saying or I won't do it." I believe Mr. de la Cuadra was there at this time. I said, "You mean to tell me you are saying that you want to quit your job?" He said, "Well, I guess that's the way you would put it then, because I am not going to do the other." I said, "I am offering you the same pay working here on the same premises and under my personal di- rection and the only difference would be that you will be working for me and will receive your paycheck through Estes Development Company." He said, "What do I need to do then if I am going to leave?" I said, "You will have to talk to Mr. de la Cuadra about that." The question came up about uniforms because when somebody is terminated, when they leave they turn their uniforms in. I said, "You have your uniforms?" He said he had one or two of them there and the other one was at home and this conversation, as I re- call, was around 1:30 in the afternoon. I said, "Why don't you take your"-"Go over- back to your home and get the uniform then and bring it and check out and when you have checked out you will receive your paycheck and we will dust consider it"-He said, "When will it terminate?" I said, "I will terminate as of today." It appears that the check which McNamara received was drawn on the Estes Development Company and was not a check from Respondent. According to the complaint, it is alleged that McNamara was unlawfully "transferred" on or about October 18 and discriminatorily "discharged"' on October 22. It appears rather that, since he was dropped from Respondent's pay- roll on or about October 18, he was discharged by Respon- dent on that date. His employment by Respondent ceased as of that date and thereafter until October 22 he was on the payroll of the Development Company. The issue, there- fore, is whether or not dropping McNamara from the em ploy of Respondent on or about October 18 constituted a discriminatory discharge. It is obvious from the testimony of both Estes and Mc- Namara that McNamara insisted on remaining on the pay- roll of Respondent and that on October 22 he, in effect, refused to accept the transfer to the employ of the Devel- 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opment Company s Although, according to McNamara's testimony, Estes threatened to blacklist McNamara, there is no allegation to that effect and it cannot be said that the matter was fully litigated, therefore, no findings will be made with respect to the issue of whether or not he was so threatened. It is inferred that McNamara was removed from Respondent's payroll on or about October 18 and transfer- red to the payroll of the Development Company in order to remove a known union adherent from the bargaining unit. As disclosed hereinabove, Respondent had knowledge of his union adherence and activity and the reasons advanced by Respondent for transferring McNamara are not persua- sive. According to Estes' testimony, it was necessary for him to cut down Respondent's overhead and, therefore, he had to reduce the work force in the Subaru service depart- ment. However, it is noted that just 2 days before Estes told McNamara that he wanted' him to transfer to the De- velopment Company, Respondent hired Osborne to work in that very department. According to his testimony, Estes needed McNamara to work on the classic cars, and by transferring McNamara to the Development Company's payroll he could effect a saving in Respondent's overhead. (It is noted that Estes also testified that when Respondent's employees worked on the classic cars, the Development Company reimbursed the Respondent for their services.) Both of Estes' above stated objectives could have been ob- tained by keeping McNamara on Respondent's payroll and reimbursing Respondent for that portion of Mc- Namara's time in which he worked on classic cars. (It is noted that the reverse procedure was followed, that while McNamara was on the Development Company's payroll, he was working on Respondent's cars and was paid by the Development Company, and it is assumed that the Devel- opment Company was reimbursed by Respondent for the period he was working on Respondent's cars.) Thus, a change in McNamara's employment was not necessary to accomplish the effects which Estes claimed he was at- tempting to achieve. Furthermore, Estes advanced another unpersuasive reason for the transfer, that McNamara's work was not satisfactory in the Subaru service depart- ment, but that he was an excellent mechanic on conven- tional cars. This reason is not convincing. It is noted that McNamara had attended Subaru school and received a certificate from said school, and there is no credible evi- dence that his work was unsatisfactory. Moreover, Os- borne, the mechanic who was employed on October 9, had not had Subaru training. It is inferred that, while Estes could very well have used the services of McNamara, ap- parently an excellent mechanic,' on his classic cars, that reason was merely,a pretext for removing him from the employ of Respondent and thereby taking him out of the bargaining unit. All the above facts coupled with the timing of the action during the organizational campaign and prior, to the elec- tion leads me to the conclusion that the transfer of Mc- 8 This position taken by McNamara does not affect the issue as to his discharge, but may be considered during the compliance stage in this case as to its effect, if any, on the matter of backpay due to him under the make- whole remedy recommended herembelow.- - Namara from, the employ of Respondent to the employ of the Development Company constituted a discriminatory discharge of McNamara on October, 18, 1974, in violation of Section 8(a)(3), and (1) of the- Act .9 Although it appears to be Respondent's position that,Estes had to find a re- placement for Cowan, there is no showing that after Mc- Namara refused. to work in the employ of the Development Company, the Development Company obtained another replacement for Cowan. Re 8: Gladu was discharged toward the end of the day (at or after 3 p.m.) on December 26, 1974. The General Counsel contends that his discharge was discriminatorily motivated, whereas Respondent claims that he was,dis- charged for charging for work that he failed to perform. In the morning of December 26, Gladu performed some work on a Capri automobile which called for a "flat rate" of 3.6 hours.1° It appears from the work records that ,the job was checked out to him at 8:04 a.m. and checked in as completed at 8:59 a.m. It further appears that the job in- cluded changing an oil seal because of an oil leak. Nissen, the shop foreman and dispatcher, credibly testified that the seal is mounted between the engine and the transmission and in order to change it, it is necessary to "pull the trans- mission." Nissen testified that when Gladu returned the work or- der to him on the above-mentioned job (which indicated that he had finished the job), he questioned, him as to whether he had completed the job because he observed that he had not even worked an hour on it and it was impossible to do the job in that small amount of time. Nissen testified as follows: I looked at the ticket and I saw those operation numbers and it was about 3.6 hours flagged and he wasn't on more than an hour, not even,an hour and I questioned this. 'I said, "Did you pull that transmission out in one hour? That's impossible." I saw his numbers written down and that is how it started. He admitted to me. He said, "No." I said, "Why did you write it down?" He answered me, "I have to make up some time." I showed him the ticket. "Is this the way you want it?" He said, "Yes." Nissen further testified that he proceeded to let the ticket go through and reported the matter to de la Cuadra, the service manager Nissen further testified that, in reporting the matter to de la Cuadra, he told de la Cuadra that "I am not going to okay it, [apparently referring to the repair 9 As to the ending of his employment by Estes Development Company on October 22, it is noted that Estes was not made a party to this proceeding either as an individual or as d/b/a Estes Development Company, and there is no allegation that, in either capacity, he and Respondent are a single or point employer. Therefore, no finding is made with respect to that point As stated hereinabove, the effect thereof on the backpay appropriately due under the make-whole Remedy is a matter that can be disposed of in the compliance stage of this proceeding 10 A "flat rate" is the amount of time set as a standard by the factory for doing the work involved and which establishes the amount of reimburse- ment it will pay on its warranty BOB ESTES, A CORPORATION order] because it has not been performed." In addition, Nissen testified that de la Cuadra said that he was going to have the transmission pulled down and he wrote up anoth- er repair order for the work to be done. The, second work order was an "internal" work order which called for the Respondent to absorb the payment to the mechanic for the work rather than charging a customer or the factory on its warranty. The second work order then was given to another me- chanic, Celestino Lopez. Lopez testified that he changed the front oil seal, that in his opinion the transmission had not been "pulled," and that it was the original factory seal which he replaced. George McKinney, who works in the parts department for Respondent, testified that he had a conversation with Gladu after Gladu's termination. McKinney testified that he had been informed by Roberts that Gladu had been fired and he asked Gladu if it were so, that Gladu said it was true, that he then went to Nissen and asked him and that Nissen informed him that Gladu had been discharged for "flat rating" (a term which indicates charging for work that had not been performed),, that he asked Nissen if he were sure, and Nissen replied, "I am sure. He admitted it to me," and that he had asked Gladu to change the ticket which he refused to do. According to McKinney's further testimony, he then approached Gladu and asked him about the matter. McKinney's testimony as to their conversation is as follows: A. I said, "Gene, are you crazy?" He said, "No." I said, "What was the idea?" He said, "Fuck it. I' have to get some money some way." And that's the exact words he said to me and Mr. Gene is right there. I have a good memory, Gene. Q. Did you have any conversation with him regard- ing correcting it? A. Yes. I said that to him. Q. Tell us what you said and what he said. A. I said, "Gene, Uwe [Nissen] tells me he gave you the opportunity of changing the R.O. [apparently the repair order]. Why don't you change the R.O.? You have a good thing going here. Everything is working okay. You have always earned good money. You have a good job. Why throw it away?" That's what he said. He had his hands in his pockets and a jacket on and, "I am easy." Gladu testified that he had performed the complete job and had changed the seal and denied that he had any con- versation with either de la Cuadra or McKinney. The Respondent introduced into evidence the oil seal which Lopez testified he had removed from the automobile and the General Counsel introduced into evidence the oil seal which Gladu testified that he had removed from the automobile. Both General Counsel and Respondent claimed that the respective oil seal each had introduced into evidence was the seal that had been installed by the factory. An examination of the seals affords me no basis for determining which of the two was a factory-installed oil seal and neither does the explanation offered as to why one 703 or the other should be recognized as the factory-installed seal. Gladu testified that the reason he happened to have the original oil seal was that when he finished the job, he threw it on his toolbox and he did not turn it in to the parts department (which apparently he was supposed to do be- cause it was a warranty job and the factory requires the replaced parts to be produced in order for the service com- pany to be reimbursed on the warranty). Gladu testified that the reason he did not turn it in was that he was not asked for it and that his discharge intervened before he could turn it in. He further testified that when he picked up his tools after his discharge, he took the seal-along with him. It is noted that he turned in the work order at approx- imately 9 a.m. and he was not discharged until at or after 3 p.m. With respect to the termination interview, Gladu testi- fied that at 3 p.m. he went back to the dispatcher's office and was informed by Nissen that there were no more jobs for him, that de laCuadra wanted to see him, that he wait- ed until close to 4 o'clock and then Nissen took him to de la Cuadra's office. He further testified that when he went in to de la Cuadra's office, he told him he was fired, that he asked him for the reason, that de la Cuadra told him to just come back tomorrow and that he, would give him his pay- check and the reason why he fired him, and that he asked de la Cuadra if he could have a photostat of the work orders, that de la Cuadra had a job ticket in his hand. When I questioned him as to why he wanted a photostat of the job ticket, Gladu testified "because I thought that even- tual [sic] they might accuse me of not having completed my job, which is what I was required to do and it was on the job order." De la Cuadra testified that Nissen, who is alternatively referred to as the dispatcher or shop foreman, reported to him that Gladu had not done the job on the work order which he had turned in and that he (de la Cuadra) pre- pared an "internal" repair order to have the job done by another mechanic. His testimony as to the termination in- terview with Gladu is as follows: He came in my offices with Uwe. I asked him if he knew why he was in my office and he said, "Yes." I said, "We don't flat rate around here." By "flat rate," I mean shortcutting, flagging for something he didn't perform. The next day, when Gladu returned to the job, he was given an envelope containing a paycheck and a termina- tion slip which stated that he was discharged "for falsifying labor changes for work admittedly [emphasis supplied] ii not performed on customer's. car." Considerable testimony, was elicited from General Counsel's witnesses as to their checking on the car after Gladu had performed the work and as to what they ob- served which indicated that Gladu had not pulled the transmission and replaced the seal. There are inconsisten- cies in their testimony but said inconsistencies are not suf- ficient to persuade me that the testimony of de la Cuadra 11 The inclusion in the notice of the word "admittedly" is discussed here- inbelow 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and McKinney should be discredited and that I can find that Gladu actually performed the work. It is noted that the job which Gladu was supposed to perform is rated at 3.6 hours and that Gladu only had the car for -55 minutes. Roberts testified that he can replace a front pump seal in less than an hour and that he saw Gladu do it in a half hour.12 It is also noted that the mechanic is paid for the amount of hours that the job is rated at, what- ever amount of time he actually spends, whether it be more or less. While Respondent's counsel conceded that it is possible for a mechanic to do a job which is rated at a certain amount of time in substantially less time, I am not satisfied that I can credit Gladu's testimony that a job rat- ed at 3.6 hours was performed by him in 55 minutes or Roberts' testimony that he could do the job in an hour and had seen Gladu do it in a half hour. Neither of said wit- nesses was convincing with respect to said testimony. Even though Gladu's discharge occurred after the elec- tion which the Union lost by a substantial margin, never- theless it is considered quite possible that Respondent har- bored an animus towards him for his union activities. He had been observed wearing a union button and questioned about it by Estes. The Respondent was informed by the Union that Gladu was one of the three employees appoint- ed as "volunteer organizers." Moreover, it was found here- inabove that on or about October 3, 1974, Gladu was is- sued a written warning notice about taking time off and that the notice was unlawfully issued because of his union activities. Thus, the motive for Gladu's discharge is sus- pect. However, I am convinced that, while the Respondent may have been glad to get rid of Gladu, his discharge was motivated by Respondent's conviction that he had charged for work which he had not performed. I credit the testimony that Gladu had admitted that he had not performed the work not only because the testimo- ny was convincing but also in view of the wording of the notice of his termination which contained the word that he had "admittedly" not performed the work. It appears most unlikely that the word "admittedly" would have'been in- cluded in the notice of his termination had he not made such an admission. It is also deemed unlikely that at the time the termination notice was written de la Cuadra, who apparently had prepared the notice of his termination, would have had the foresight to anticipate that the issue of whether Gladu had admitted not doing the work would arise in the future. In any event, I am convinced, based on credited testimony, that Respondent had good grounds to believe that Gladu had not performed the work in 55 min- utes for which he charged 3.6 hours and that this belief motivated the discharge. Consequently, it is concluded that the General Counsel has failed to prove by a preponder- ance of the evidence the allegation that Respondent violat- ed Section 8(a)(3) and (1) of the Act by its discharge of Gladu on December 26, 1974. Re 9 through 15: The remainder of the issues to be re- solved in this proceeding relate to allegations contained in the complaint in Case 31-CA-5329, and all of the testimo- ny pertaining to said allegations is with respect to incidents 12 It is noted that this testimony apparently relates to issues considered herembelow involving Roberts. involving only Roberts, the Charging Party in said case. It is noted that Roberts was known by Respondent to be a union adherent. Roberts wore a union button at the shop before the Board election, and had been named as one of the three "volunteer organizers" by the Union in a letter received by Respondent on September 23, 1974. Also, he had been named by Osborne in mid-October 1974 in a conversation with de la Cuadra as one of the two employ- ees who talked to him about the Union, and he acted as the union observer at the Board election on November 14. These facts have been fully considered in resolving the is- sues relating to Roberts. Roberts testified that on the day after the election, he had a conversation with Estes in which Estes asked him if he would like to work in Lake Tahoe and he could arrange it for him if he would. Roberts further testified that he answered in the negative, that Estes stated, "Well, we will see how you do," and that he added, "I will be watching you." 13 Estes testified without contradiction, and his testimony is credited, that Roberts had remarked to him in a conver- sation that he would like to get out of the city and that he told him that he had a friend who is a Lincoln-Mercury dealer in Lake Tahoe and that he told Roberts that he might be able to get him a job up there and asked him if he were interested. He further testified that Roberts answered that he would be interested. Estes, however, denied that he made any statement to Roberts about watching him. Of the two witnesses as to this incident, Estes was the more con- vincing and his testimony is credited. Therefore, there is no basis for finding an unfair labor practice based on the testi- mony of Roberts which if credited might be construed as an implied threat. Re 9: Roberts testified with respect to several conversa- tions he had with Nissen. He testified that the first conver- sation occurred toward the end of November. His testimo- ny with respect to said conversation is as follows: He said, Bob, I know you are not liked upstairs here because you tried to start a union here. He said that I want to know for myself what your intentions are. He said I-I replied that I didn't think that I would be interested in trying to start a union again as long as they didn't want to change our payscale again. He said that that was fine with him, and that as long as I did my work properly that he would protect me as well as Gene Gladu and Bill Dilday, and that as long-although Bob Estes he wanted us out of there, he said, we would be okay there as long as we did our work properly, and it was left up to him. Nissen, who entered the employ of Respondent shortly before the election, denied that he had the above conversa- tion to which Roberts testified. Of the two, Nissen was the more convincing witness and his denial of the above testi- 13 There is no allegation in the complaint with respect to this testimony and it is presumed that an allegation with respect thereto might very well have been omitted because it occurred more than 6 months prior to the filing of the charge by Roberts. Since there was no objection to the testimo- ny and the matter was fully litigated, the issue with respect to this testimony will be resolved BOB ESTES, A CORPORATION mony is credited. Therefore, it is concluded that General Counsel has failed to prove by a preponderance of the evi- dence the allegation that Respondent, through Nissen, un- lawfully interrogated Roberts on or about December 1, 1974. Re 9 and 10: Roberts testified that a second conversa- tion with Nissen occurred at the end of December 1974. Nissen's testimony as to that conversation is as follows: A. He came over to me, and he told me that I was doing a good job, that I was a good man, and why didn't I go upstairs and settle this matter with the union with Mr. Estes and apologize for my actions, if necessary make amends. Q. Was there anything further said in that conver- sation? A. I told him I didn't feel that I had anything to apologize for. I hadn't done anything wrong. Roberts further testified that Nissen might have, during this conversation, inquired about the condition of his back which he had injured on the job in September 1974.14 Nissen, in effect, denied Roberts' above testimony with respect to the conversation toward the end of December, but did state that he might have made an inquiry about his back injury, that Roberts had complained about his back injury to him several times and they had talked about it. Nissen was the more convincing of the two witnesses, therefore, his denial of Roberts' testimony is credited. There are two allegations in the complaint in Case 31-CA-5329 that might be considered to relate to the above testimony of Roberts. They are that Nissen unlaw- fully interrogated Roberts about his union sympathies and activities on or about December 31, 1974, and that on about the same date, the Respondent, through Nissen, un- lawfully solicited Roberts to abandon his union activities and beliefs. It is found that General Counsel has failed to prove by a preponderance of the evidence either of these allegations since the only testimony of Roberts which might be considered to relate to said allegations has not been credited. Re 11: Roberts testified that he had a third conversation with Nissen on or about January 25, 1975. His testimony with respect to that conversation is as follows: He said I wasn't liked around town very much. I mean that I was making a bad name for myself around town and that he didn't see how I could have a bad back and work so fast and good as I did. He said that I was a good man and he wanted to keep me there. He said why don't I go upstairs and take my attorney if necessary and talk with Bob Estes and set- tle matters with him. And I do recall that I did reply to him, I told him that I didn't feel that I had anything to discuss with Mr. Estes, that in the past if he ever wanted to talk to me he didn't have any difficulty to find me, he knew where I was, and he could speak with me. Nissen was questioned about his testimony and denied 14 His injury to his back was the basis for a workman's compensation claim filed by him. The results of that claim are discussed herembelow 705 that he made any statement to Roberts that he was making a bad name for himself or that people upstairs didn't like him. In response to Roberts' testimony that he asked Rob- erts why he didn't settle matters with Estes, Nissen testified that he did make a statement to Roberts concerning his back injury, that he said if there was any problem about it he should take care of it, but that he never mentioned set- tling it with Mr. Estes. Thus, in effect, Nissen denied the testimony of Roberts. Again, Nissen appeared to be the more convincing witness and, therefore, his denial of Rob- erts' above-quoted testimony is credited. The only allega- tion in the complaint which could possibly relate to Rob- erts' above-quoted testimony is an allegation that on or about January 2, 1975 (almost a month earlier), Respon- dent, through Nissen, threatened to discharge Roberts and to prevent him from obtaining other employment unless he abandoned his union activities and beliefs.t5 Therefore, it is concluded that the General Counsel has failed to prove by a preponderance of the evidence said allegation.16 Re 12: Roberts testified that he had been away from work starting approximately February 13, 1975, because of the flu and that during the first day of the hearing at which he was present under a subpena (on February 20) Nissen informed him he would have to have a "doctor's release" before he could return to work. Roberts further testified that he had been out sick on previous occasions and had not been required to provide a doctor's release before re- turning to work. However, he further testified that the longest time he had been away from work because of ill- ness was 2 days. Nissen testified that he did ask him to present a doctor's release before returning to work. His testimony as to his reason for doing so is as follows: Because he was ill for quite a few days, and his wife called me, and she was quite upset, and she told me especially I am working him too hard. She didn't like that at all the way I put him to work, and he came in, and I met him here in court, and since my wife is a nurse and my father is a doctor, I am quite concerned of the health condition of my employees or people I am working with. So I asked him before you come to work I need a certificate from your doctor that you are capable to work again, and before you don't have it I just can't put you back to work. I don't want, to take that chance. Marie Langdon, Respondent's controller, testified that it was a company policy to require a doctor's certificate after a prolonged illness. Her testimony with regard thereto is as follows: After a prolonged illness of any kind or when some- one has a disability on file, whether it is with Workmen's Compensation or the regular health and accident, we do it for their benefit actually, too, be- cause, sometimes they want to return to work not real- Is Even if the above testimony were credited, it could not afford a basis for finding said allegation has been sustained. The testimony is too ambigu- ous to permit such a finding 16 There is no other testimony in the record which could possibly relate to said allegation. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD izing that it might endanger their health. That has long been the policy. However, Nissen, in stating the reason for asking him for a doctor's certificate, did not mention the policy. On the other hand, it is noted that, according to Roberts' testimo- ny, when Roberts presented the certificate to Nissen on the following Monday Nissen said, "good," and that he would take it "right upstairs," which would tend to indicate that company policy did require the doctor's certificate and that Nissen must have been aware of it. In any event, his testimony as to the reason for requiring it, particularly the matter of the call from Roberts' wife is not contradicted and, therefore, Nissen's testimony as to why he required the doctor's certificate is credited. In light of the above, it does not appear appropriate to find that the reason for asking for it was discriminatorily motivated as alleged in the complaint (because Roberts had been called as a wit- ness by General Counsel and testified in the proceeding). Moreover, it is noted that the requirement of a doctor's certificate was made during the first day of the hearing according to Roberts' testimony, and that the testimony he gave on that day was not particularly controversial and not likely to have invited reprisal. Consequently, it is concluded that the General Counsel has failed to prove by a preponderance of the evidence that Respondent violated Section 8(a)(1) of the Act, as alleged in the complaint, by requiring Roberts to present a doctor's certificate before returning to work after his illness. Re 13: The first workday after the hearing was Monday, February 24. Roberts testified that in the morning of that day he went to his doctor and got a release from him stat- ing that he was able to work; that he reported to work between 10:30 and 11 o'clock; that he gave the doctor's certificate to Nissen, that Nissen took it from him and said, "Good. I'll take that right upstairs"; and that he (Roberts) proceeded to change into his work clothes. He further testi- fied that when he returned to the dispatch area and asked Nissen for some work to do, Nissen said that it was too late and that there was no work for him. Nissen's testimony as to the balance of their conversation is as follows: He said besides, we don't have work for liars. I told him at that point that I was sorry he felt that way, that I thought that I had told what I felt to be the truth at the Labor Board hearing. He said that if I was in Germany that I would be put in jail for that testimony. I told him that if he liked Germany so well he should go back there. x He told me to get away from him and stay away from him, and I told him that I couldn't do that be- cause I couldn't get any work without talking to him, and that at that point he told me to go back to my corner and wait. Nissen testified as to his conversation with Roberts and his testimony is as follows: A. Yes, because I think I felt after he came back and after this court trial where I was a witness was over I felt my personal honor at stake, and I am not born and raised in this country, and in Europe we have different conditions, different court procedures, and I told him as an American citizen I told him how can you in this case raise your hand in front of the American flag, swear under God, and lie at the same time. I think that is the most rotten thing I have ever seen. I have a high respect for the American court because my first time in an American court was when I was naturalized, and I think it was one of the great- est things I experienced, and here these guys lie in front of the American flag and bring testimony that was falsified. This is between"himself and myself, has nothing to do with him or his job or Mr. Estes, and it was my personal honor. I told him my own feelings about this as a European, and that was the end of that. JUDGE: Well, did you tell him you had no work for liars? A. I didn't say that. I couldn't, because I needed him. JUDGE: Well, did you tell him to get away from you and stay away from, you? A. I told him stay in your corner, because I didn't feel like talking to him any more because we like to talk about our hobbies and these sort of things. So that did it. The only substantial contradiction between the testimony of the two is that Nissen denied that he told Roberts, "We don't have work for liars." As before, Nissen was the more convincing witness of the two and therefore his aforesaid denial is credited.17 There remains the issue of whether or not his accusing Roberts of lying while testifying for the General Counsel and swearing at him and telling him to stay away from him 18 constitutes a violation of Section 8(a)(1) of the Act. It appears Nissen was incensed by cer- tain of Roberts' testimony referred to hereinabove in con- sidering the issue of Gladu's discharge. It appears that the testimony was that he (Roberts) could do the work in an hour that Gladu was supposed to have performed in 55 minutes and that he has observed Gladu doing the work in half an hour. On the other hand, Nissen testified that it was impossible to do the job in an hour. It appears that Nissen, in lecturing Roberts about lying on the witness stand and breaking off of personal conver- sations with him by swearing at him and telling him to stay away from him, was merely giving vent to his "personal outrage and resentment, rather than to bring pressures of fear or reprisal" for protected activity. Carpenters Union Local 180, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, 162 NLRB 950, 960-961 (1967). See the Board's Decision in Pontotoc Wire Products Company, 220 NLRB No. 41 (1975), as to statements made in anger over what were believed to be false statements by employ- ees made to a Board agent. Since Roberts' testimony is not credited that Nissen 17 It is noted, as disclosed herembelow, that after their conversation, Nis- sen brought a work order to Roberts 18 As disclosed herembelow, according to Roberts' uncontradicted testi- mony at one point Nissen called him a "god-damned son of a bitch" in telling him to stay away from him BOB ESTES, A CORPORATION 707 threatened to withhold work from him and it is not deemed that his above-described lecture about lying and swearing at him and telling Roberts to stay away from him consti- tutes a violation of Section 8(a)(1) of the Act, it is conclud- ed that the allegation relating to this incident has not been sustained. Re 14: Roberts testified that, after he was sent to his "corner" to wait, Nissen brought him a work order; that, after, he brought the car in from the parking lot and posi- tioned it on his lift, Nissen took the work order back from him and gave it to Kenneth Shaw , the "other front end man" who worked next to him; and that he gave him a warranty order in place of it and stated that "the young lady who owns the car doesn't want liars working on her car; and that the work order was a small warranty order which does not pay as well as a customer work order. Rob- erts further testified that when he started to work on the car for which the warranty order was written , he com- plained to Nissen about the equipment in his stall, particu- larly the lift. Roberts testified that he spoke to Nissen as follows: I told him, I said, look, I have been injured here already, you know, trying to make a living, and I don't want to make it any worse by injuring myself again. He said, well, I will have to talk to Mr. de la Cuadra 'about this, and'he walked in to see Bruce. And he came back and returned and said when you get finished with this car, go home. I said what do you mean go home? Am I fired or what, you know. He said, Mr-de la Cuadra says it is too dangerous for you to work here, that you just should go home. I asked him, well, okay. The lift is broken. That is fine, and I know you guys are going to fix it, because I have asked you. Can't I work on another lift to do this work or-and there were other lifts available around there, quite a few, and he said no. You can't. We need them. And I proceeded to work on the car that I was working on, and I completed it. I walked over to Mr. Nissen and with the repair order, and he said-I asked him, well, will you people call me when my lift is re- paired so I can go back to work, because it is costing or it is going to cost me money staying off from work. He said why don't you get away from me, you God damned son of a bitch . 19 Go home. And that's what I did. I went home. Roberts further testified that he returned to the shop the next day and found the lift partially repaired ; that he then was not given the better paying customer jobs; that Shaw, who was working next to him, was getting the better paying customer jobs; that, on possibly February 27 or 28, he checked the route sheet and that on that day he had one job and "Mr. Shaw had 12, I think." He further testified that he complained to Nissen and de la Cuadra and threat- 19 This was uncontradicted and was considered hereinabove ened to go to the National Labor Relations Board and that work improved after that. Nissen denied Roberts' testimony about taking, work away from him because the person whose car -it-was didn't want a liar working on the car. Nissen confirmed Roberts' testimony that he complained about the condition, of his lift, that he told him that -since he considered it so danger- ous that he had better go home and he would call and let him know when the lift was repaired. Nissen further testi- fied that he told de la Cuadra about the complaint, that he called the repair company immediately , and that the lift was fixed the same afternoon . As to Roberts' testimony that he was discriminated against by being given warranty work and Shaw was given better paying customer, work, Nissen denied that he did so deliberately. He testified that, on the contrary, Roberts habitually complained about get- ting warranty work. When questioned about Roberts' testi- mony that on one day Roberts had only one car to work on, whereas Shaw had 12, Nissen testified that while it is quite possible that Shaw had a few jobs which were as- signed to him prior to Roberts' return, he added, "But -12 cars I think that sounds quite exaggerated. This is impossi- ble. He also testified it is possible on that day which Rob- erts testified he only had one job, "that it might have been just that we had just one brake job coming. " General Counsel pointed out that during the month of February, Shaw averaged $72 per workday and that for those days that Roberts worked in February he averaged, $23 a day less. It appears that out of the 20 workdays in February, he missed 8, that the day he returned he worked only a por- tion of a day and that there, were only 4 more workdays in February.20 Nissen was a convincing witness and I am not of the opinion that the record will sustain a finding that Nissen deliberately withheld work from Roberts or dis- criminated against him by giving Shaw the better -paying jobs. It is noted that in the following months, Shaw earned $1,500 in March, whereas Roberts earned $1,518; and that in April, Shaw earned $ 1,282, whereas Roberts earned $1,440, including $31 he received for 1 day of training at the Subaru school. - The allegation relating to the above testimony is that Respondent violated Section 8 (a)(4), (3), and (1) of the Act by refusing to assign work to Roberts during the period of February 24, 1975, through March 3, 1975. It is concluded that the General Counsel has failed to prove by a prepon- derance of the evidence this allegation of the complaint. Re 15• It is alleged that on-or about May 19, 1974, Re- spondent violated Section 8(a)(4), (3), and (1) of the Act by constructively discharging Roberts, It is, noted that the tes- timony which General Counsel contends constitutes evi- dence of a discriminatory constructive discharge relates to events which are found to have occurred on May 20, 1975. In considering the issue with respect to the termination of Roberts' employment with the ,Respondent, the, above- mentioned elements establishing Respondent 's knowledge of Roberts' union activity have been fully considered as 20 1 am not convinced that the daily averages earned by Shaw and Rob- erts for the month of February afford a basis for finding that Roberts was discriminated against in work assignments for the last 4 days in February There are too many possible factors which could account for the disparity other than discrimination during the last 4 workdays in February 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD well as his testimony at the hearing on February 21, 1975, and Nissen's reaction thereto. There is testimony by Roberts which should be consid- ered before proceeding to the testimony of what occurred on May 20, 1975. Roberts testified that he overheard a comment made by counsel for the Respondent to Estes shortly after he gave his testimony (on February 21, 1975), "about being qualified to work on transmission." 21 Ac- cording to Roberts' testimony, he was seated in the witness stand at the time the remark was made and "everyone" else was in the hearing room including me. (I assume I was seated on the bench next to the witness when the remark was supposedly made.) Roberts testified that the counsel for Respondent turned to Estes (both of whom must have been seated at the counsel table) "and said that we have to get rid of this son-of-a-bitch." At that point in Roberts' testimony, I stated for the record that I had not heard such a comment, to which Roberts replied that he had and that he observed that Estes nodded in agreement. Estes was called to testify on rebuttal and denied that counsel for the Respondent had made such a remark to him. The General Counsel failed to call as a witness anyone who was in the hearing room (at' the time the remark was supposedly made) to corroborate Roberts' testimony. As noted herein- above, Roberts was not a convincing witness and his above testimony about counsel's remark to Estes, in all of the circumstances, was most unpersuasive. Consequently, it is not credited. Also, Roberts testified that sometime in February 1975 (apparently before February 13) Nissen told him that Langdon and Estes were "afraid that I might try to start the Union again, because he knew according to American law that I could do that again after one year's time." This testimony was not contradicted and, therefore, is credited. Roberts also testified without contradiction, and his testi- mony is credited;' that in April 1975 he and Nissen were assigned to attend Subaru training school (apparently for 1 day), that he objected to attending the school, and that he was ordered to attend. Turning now to the matter of the alleged discriminatory constructive discharge, it appears that at the end of the day on May 20, 1975, Roberts was called into Estes' office where Estes, de la Cuadra, and Langdon were present. His testimony as to what occurred when he arrived in the office is as follows: A. Well, he [Estes] told me that they had received the letter, that he had a letter or a piece of paper in his hand, and that from the insurance company that I was disabled and that I would have to be transferred to the Subaru department the very next day. Let's see. He said that I-I told him I didn't want to work on Subarus and that there wasn't any facilities over there to do brake and front end work and that I was a brake and front end man and why was he send- 21 This is apparently the same testimony referred to heremabove (with respect to Gladu's discharge) as to the amount of time required to perform the work which Gladu claimed he had performed on the Capri Nissen had testified that it could not be done within the time Gladu spent on the car, and Roberts' testimony contradicted Nissen's (which apparently gave rise to Nissen accusing Roberts of being a liar, as set forth hereinabove) ing me there, and besides that, I had never worked on foreign cars to any great extent, and I was a Lincoln- Mercury mechanic and how would I be able to do front end work there. He said that I was disabled, and I would have to go there. And then again I said I didn't want to go, and that he was only doing that because that he wanted to force me to leave there because of my union activity and that that was the only reason that he was doing that. He said that you will go there. I said no, I won't. He said in that case get your tools and get out, and I turned and walked away. That is my best recollection, sir. Q. Did he say anything to you about the type of work that you would be doing in the Subaru depart- ment, if you went there? A. He said that I would be doing light work, like such as tuneup, I think he answered. Roberts credibly testified that he received his termina- tion check the next day. He also credibly testified that he asked if there were any complaints about his work and was told that he was being transferred because he was disabled and not because he was failing to do his work properly. As to the disability, he credibly testified that he injured his back in September 1974 and filed a claim based on that injury. In addition, he credibly testified that he was award- ed a settlement in May 1975. He was asked how much he was awarded and testified as follows: $7,000, $8,000. 7,000 something. I don't recall the exact figure. And also that if I needed additional med- ical attention like say that my condition should wors- en that I should require surgery on my back that that would be taken care 'of, and that is all that I remember at this time. The record reveals that on May 20, 1975, Respondent received a letter from Universal Underwriters Insurance Company, the insurance agent for Respondent, which let- ter was dated May 19, 1975, and contained the following: Re: Employee: Robert Roberts Accident: 9-26-74 Claim No.: BC 84616 REG Dear Mr. Estes: I promised you that I would keep you advised of the outcome of hearings at the Workmen's Compensation Appeals Board on your employees. Last Friday Robert Roberts had his hearing and was awarded 30% disability which amounted to $8,452.50. The basis for this award was the doctor's report which said that Mr. Roberts was to do no heavy lifting, no repetitive bending or stooping, and that he was not to work in cramped quarters. Estes credibly testified, as did Langdon, that Respon- dent carried a workmen's compensation policy with the above-mentioned insurance agent, that the loss rates on its BOB ESTES, A CORPORATION 709 policy had been had, that they were in excess of the premi- ums paid and that its premiums had been increased. Lang- don credibly testified that the figure for its losses was ap- proximately 230 percent of the premiums paid over the preceding 3 years. Estes, Langdon, and de la Cuadra credibly testified that the three of them had a meeting after the above-mentioned letter from the insurance agent had been received and that they discussed what should be done about the doctor's statement set forth in the letter as to the type of work Rob- erts should not be permitted to do. It appears from their testimony, 'which is credited, that they discussed various alternatives and decided that they did not want to lose him as'a mechanic, since he was a good mechanic, and decided to transfer him to the Subaru department (the corner store), which was not equipped to do the heavier work, and at which the lighter work, such as tuneups, was done. All three also testified as to the interview between Estes and Roberts, and their testimony is consistent that Estes showed Roberts the letter or advised Roberts about the letter from the insurance company, that Estes told him they wanted to keep him on and that he was going to trans- fer him to the corner shop where he could do tuneup and fast service work and that Roberts insisted he wanted to continue to do the type of work he was doing. According to Estes' credited testimony, Roberts became very hostile and accused Estes of merely trying to get rid of him and insist- ed "he would continue on just exactly as he was or he would not continue at all." Estes further credibly testified that he tried to calm him down and explained to him that the work would be much lighter at the corner store and that the letter set out restrictions as to the work he should be permitted to do. Estes also credibly testified that at the conclusion of the interview, Roberts asked' for his check, and that the next day he came back and picked up his check and tools. Also, Estes credibly testified that the transfer to the "corner store" might have affected Roberts' compensation at first because he had less expertise in the lighter work, but that tuneup and fast service men made comparable wages with what Roberts was making and that Roberts might make less money to start with until he ac- quired expertise in the lighter work; that he, Estes, had "great respect for Roberts' mechanical ability." De la Cuadra also testified as to the interview with Rob- erts and his testimony is consistent with that of Langdon and Estes. De la Cuadra testified he could not remember if Roberts was fired or that Roberts said that he quit. It is noted that Roberts, in his application for employment at the place where he was employeat the time of the hear- ing, stated that he had "quit" his previous job. It is inferred from credited testimony, that in effect, Roberts refused to accept his assignment to the corner store and quit his em- ployment rather than accept the assignment. Therefore, the question is whether or not the assignment to the corner store which provoked his quitting was discriminatorily mo- tivated. Despite the fact that Respondent had knowledge of Roberts' union activity, had sent him to Subaru school, and might have been fearful that when a year had lapsed, after the election on November 14, 1974, a new petition could be filed, I am of the opinion that the transfer to the Subaru department was motivated solely by the report from the insurance agent. The letter quite clearly indicated that he, Roberts, should be given lighter work and the rec- ord amply discloses that the work he had been doing in- volved considerable amount of bending and heavy lifting as contrasted with the work of the corner store which was of a much lighter nature. I am convinced from all of the circumstances that Re- spondent did not want to get rid of Roberts and did not attempt to transfer him to the corner store in reprisal for his protected activity or in order to provoke him into quit- ting. On the contrary, I am convinced from all of the cir- cumstances 22 that the transfer to the corner store was prompted by the letter from the insurance agent and that the action was an attempt to retain Roberts in Respondent's employ, despite his disability. It is found from credited testimony that the "corner store" was the only area in which there was an opening for a mechanic, particularly, it appears, involving lighter work than that which was performed in the area where Roberts wanted to stay. Consequently, it is concluded that the Gen- eral Counsel has failed to prove by a preponderance of the evidence the allegation that Respondent violated Section 8(a)(4), (3), and (1) of the Act by constructively discharging Roberts. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with its opera- tions set forth in section I', above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor prac- tices found herein and take certain affirmative action, as provided in the recommended Order below, designed to effectuate the policies of the Act. It having been found that Houston McNamara was un- lawfully discharged on October 18, 1974, it will be recom- mended that Respondent be ordered to offer him immedi- ate and full reinstatement to his former job, or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. It will be further recommended that Respondent be ordered to reimburse him for any loss of pay he may have suffered as a result of its discriminatory action against him in the manner set forth in F. W. Woolworth Company, 90 NLRB 22 I am not unmindful of the fact that in the previous month Roberts had been forced to go to the Subaru school and that this would tend to indicate that Respondent contemplated transferring him before it received the letter from the insurance agent However , this, at most, can only lead to mere speculation which would not offset the clear necessity of transferring him to lighter work in order for Respondent to comply with the doctor's report set forth in the letter from the insurance company 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 289,291-293 (1950), together with 6-percent interest there-, on in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962) 23 It will be further recommended that, Respondent be re- quired to expunge from Eugene Gladu's'personnel records the written warning notice it issued to him on October 3, 1974. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the fol- lowing: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by the following conduct: (a) By giving Eugene Gladu a written warning (about taking time off) on October 3, 1974, because of his union activities; (b) By the conduct of Bruce de la Cuadra in mid-Octo- ber 1974 in unlawfully interrogating an employee about his union activities and those of other employees; and (c) By soliciting grievances from employees in October 1974 and impliedly promising them benefits to restrain them from supporting the Union. 4. Respondent violated Section 8(a)(3) and (1) of the Act on October 18, 1974, by discharging Houston McNam- ara. 5. General Counsel has failed to prove by a preponder- ance of the evidence, that Respondent violated Section 8(a)(3) and (1) of the.Act by,its discharge of Eugene Gladu on December 26, 1974. 6. General Counsel has failed to prove by a preponder- ance of the evidence the allegations of unfair labor practic- es set forth in the consolidated complaint in Cases 31-CA-4840 and 31-CA-4970 other than those found hereinabove. 7. General Counsel has failed to prove by a preponder- ance of the evidence any of the allegations of unfair labor practices set forth in the complaint in ,Case 31-CA-5329, including the allegation of an unlawful constructive dis- charge of Robert Roberts. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER '24 Respondent, Bob Estes, a Corporation, Inglewood, Cali- fornia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 73 As to the effect on the amount of backpay due him by reason of his subsequent employment by Estes Development Company and his refusal on October 22, 1974, to continue in that employment, this issue can be resolved in the compliance stage of this proceeding. 24 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, (a) Issuing written warning notices to employees be- cause of their union activities. (b) Unlawfully interrogating employees about their union activities and those of other employees. (c) Unlawfully soliciting grievances from employees and impliedly promising them benefits to restrain them from supporting the International Union, United Automobile, Aerospace & Agricultural Implement Workers of Ameri- ca-UAW, or any other labor organization. (d) Discouraging membership in the aforesaid Union, or any other labor organization, by discriminating against employees in regard to hire or tenure of employment or any term or condition thereof. (e) In any other manner interfering with , restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the, Act: (a) Offer Houston McNamara immediate and full rein- statement to his former job or, if hisjob no longer exists, to a substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay suffered by him by-reason of his discriminatory discharge in the manner set forth in the sec- tion hereinabove entitled "The Remedy." (b) Expunge from the personnel records of Eugene Gla- du The written warning notice issued to him on October 3, 1974. (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll and other records containing information concerning its backpay obligation under this recommended Order. (d) Post at its place of business in Inglewood , California, copies of the attached notice marked. "Appendix." 25 Cop- ies of said notice on forms to be furnished by the Regional Director for Region 31, after being duly signed by an au- thorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof , and main- tained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that , said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 31, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations in the consoli- dated complaint in Cases 31 -CA-4840 and 31--CA-4970 which have been found hereinabove not to have been sus- tained, should be, and hereby are , dismissed, including the allegation of the discriminatory discharge of Eugene Gla- du. 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 25 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " BOB ESTES, A CORPORATION 711 3. It having been found that General Counsel has failed to sustain by a preponderance of the evidence any of the allegations of unfair labor practices contained in the com- plaint in Case 31-CA-5329, said complaint should be, and hereby is, dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT issue any written warning notices to employees because of their union activities and will expunge from the personnel records of Eugene Gladu the written warning notice issued to him on October 3, 1974. WE WILL NOT unlawfully interrogate employees re- garding their union activities or the union activities of their fellow employees. WE WILL NOT solicit grievances from employees and impliedly promise them benefits in order to restrain them from supporting the International Union, Unit- ed Automobile, Aerospace & Agricultural Implement Workers of America-UAW, or any other labor orga- nization. WE WILL NOT discourage membership in the afore- said Union, or any other labor organization, by dis- criminating against employees in regard to hire or ten- ure of employment or any term or condition thereof. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights under Section 7 of the Act. WE WILL offer Houston McNamara immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by him by reason of his discriminatory dis- charge. BOB ESTES, A CORPORATION