Peninsula Service Station Equipment Co.

PENINSULA SERVICE STATION EQUIPMENT COMPANY Peninsula Service Station Equipment Company and Millwright and Machinery Erectors Union, Local No. 102, United Brotherhood of Carpenters and Joiner of America, AFL-CIO. Case 20-CA-10314 August 11, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On January 9, 1976, Administrative Law Judge George H. O'Brien issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondent filed a statement in opposition to General Counsel's exceptions. 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 the statement and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith and to adopt his recommended Order as modified herein. 1. The Administrative Law Judge found that Respondent's dispatcher, Carlos Cartagena, was not a supervisor as defined in the Act and should be ex- cluded from the appropriate unit of maintenance me- chanics as an office clerical employee; that Respon- dent engaged in surveillance of protected concerted activities, in violation of Section 8(a)(1) of the Act; that Respondent discharged Edward Brooks, Stanley Laster, and William Mawhinney to discourage mem- bership in the Union, in violation of Section 8(a)(1) and (3) of the Act; and that Brooks and Laster were entitled to reinstatement and backpay. No excep- tions were taken to these conclusions, which are fully supported by the record. 2. The Administrative Law Judge found, notwith- standing the absence of any such claim by Respon- dent, that William Mawhinney forfeited his right to reinstatement because he engaged in irresponsible conduct in leaving an air compressor at a customer's establishment in a highly dangerous condition. We disagree. The Administrative Law Judge's finding of i The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings 887 irresponsible conduct appears to rest solely upon his own speculation which is unsupported by the record.2 We therefore find, contrary to the Administrative Law Judge, that Mawhinney is entitled to reinstate- ment, and we shall so order. 3. Notwithstanding his undisputed finding that Respondent discharged Brooks, Laster, and Ma- whinney, its entire maintenance mechanics force, for union activity, in violation of Section 8(a)(3), the Ad- ministrative Law Judge nevertheless declined to issue a bargaining order on the grounds that: the viola- tions were committed solely because of the ignorance of Hane, Respondent's sole proprietor, of his obliga- tions under the Act at the time of the discharges; there was no indication he would violate the Act in the future; he had cooperated with the Regional Of- fice in its investigation of the case; he is represented by competent counsel; and the discharges were moti- vated in part by the mechanic.' deficient work per- formance. In view of the flagrancy of the discharges which eliminated the entire prounion work force, Respondent's clearly demonstrated continuing union animus following the discharges, and the irrelevance of, as well as the absence of, any record evidence to support, either the Administrative La's Judge's find- ing that Hane was in fact ignorant of the Board's processes or the other reasons of the Administrative Law Judge, we shall issue a bargaining order. 4. In view of the seriousness of the violations here- in committed, we shall order that Respondent cease and desist from in any manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Peninsula 2 According to the uncontradicted testimony of Brooks and Mawhinney, the latter substituted a borrowed compressor for the customer's defective compressor, but the substitute compressor had a defective safety valve The customer expressed great concern, amounting to insistence, that he have an operative compressor in order to continue in business Mawhinney there- upon told him he could operate the substitute compressor manually, by observing the pressure and turning it off before it became excessive He then left the customer's premises to obtain a new part The Administrative Law Judge's own examination of Mawhinney revealed that, apart from the de- fective safety valve, there was, in effect, a second safety valve, or plug, similar to those in pressure cookers, which would "blow" in the event of excessive pressure Hence his own examination of Mawhinney negates his prediction of risk of life and limb from unauthorized use of the compressor Moreover, Mawhinney had been directed to return to the office to obtain the necessary replacement part rather than obtain one locally He was dis- charged shortly after his return, before he could obtain the part and effect the replacement Nevertheless, upon his discharge, he advised Respondent of the situation and what was required to be done 225 NLRB No. 127 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Service Station Equipment Company, Redwood City, California, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Substitute the following for paragraph 1(c): "(c) In any other manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act." 2. Insert the following as paragraphs 2(a) and (b) and reletter the subsequent paragraphs accordingly: "(a) Offer to William Mawhinney immediate and full reinstatement to his former job or, if such 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 earn- ings he may have suffered by reason of the discrimi- nation against him in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with in- terest thereon at 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). "(b) Upon request, recognize and bargain with the Union as the exclusive representative of ali employ- ees in an appropriate unit of all maintenance me- chanics at the Redwood City, California, facility of Peninsula Service Station Equipment Company, ex- cluding office clerical employees, guards, all other employees, and supervisors as defined in the Act, and, if an understanding is reached, embody such understanding in a written signed agreement." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the Na- tional Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, and assist any union To bargain collectively through representa- tives of their own choosing To engage in concerted activities for the purposes of collective bargaining or other mu- tual aid or protection To refrain from any or all such activities. WE WILL NOT ask any employee to report to us on the union or lawful concerted activities of his fellow employees. WE WILL NOT discourage membership in or ac- tivities on behalf of Millwright and Machinery Erectors Union, Local No. 102, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, by terminating, laying off, or in any other manner discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the Act. WE WILL offer William Mawhinney his former job or, if such job no longer exists, a substantial- ly equivalent position, without prejudice to his seniority or other rights and privileges, and WE WILL pay him for any loss of wages he may have suffered by reason of our discrimination against him together with interest thereon at 6 percent per annum. WE WILL make whole, with interest, Edward Brooks and Stanley Laster for losses suffered by reason of our discrimination against them. WE WILL, upon request, recognize and bargain with the Union as the exclusive representative of all employees in an appropriate unit of all main- tenance mechanics at the Redwood City, Cali- fornia, facility of Peninsula Service Station Equipment Company, excluding office clerical employees, guards, all other employees, and su- pervisors as defined in the Act, and, if an under- standing is reached, embody such understanding in a written, signed agreement. PENINSULA SERVICE STATION EQUIPMENT COMPANY DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Administrative Law Judge: This case was heard before me in San Francisco, California, on November 6 and 7, 1975. The complaint, issued August 28, 1975, as amended October 23, 1975, is based on a charge filed June 6, 1975, by Millwright and Machinery Erectors Union, Local No. 102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, and alleges violations of Section 8(a)(1) and (3) of the National Labor Relations Act by Peninsula Service Station Equipment Company, herein called Respondent. PENINSULA SERVICE STATION EQUIPMENT COMPANY Upon the entire record I in this proceeding, including my observation of the witnesses and after due consider- ation of the posthearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Joseph A. Hane, Respondent herein, is a sole proprietor doing business as Peninsula Service Station Equipment Company. His office and shop is located in Redwood City, California. During calendar year 1974, Respondent re- ceived from Shell Oil Company payments in excess of $80,000, for maintenance work at various retail outlets in San Francisco, San Mateo, and northern Santa Clara Counties, California. During 1974, Shell Oil Company op- erated an oil refinery located at Martinez, California, which received, directly from points located outside the State of California, materials valued in excess of $50,000, and operated nine service stations in northern California which had aggregate gross sales of over $500,000 to retail customers. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Whether Joseph A. Hane, when he, on June 5, 1975, ordered the discharge of three employees, was motivated by the intent to discourage membership in the Union or whether, as argued by Respondent's counsel: an overly patient employer who had long tolerated gross incompetence and flagrant misconduct from three employees, in a final fit of exasperation, dis- missed them for intentionally disobeying a lawful company policy restricting the duration of the lunch period to thirty minutes. 2. Whether Respondent's dispatcher, Carlos Cartagena, was a supervisor within the meaning of Section 2(11) of the Act. 3 Whether Joseph A. Hane, when he authorized his dis- patcher to accept the invitation of three employees to a luncheon meeting, on June 5, 1975, knowing that working conditions were to be discussed, engaged in unlawful sur- veillance of union activities 4. Whether Joseph A. Hane, on September 1, 1975, threatened to close his shop if his employees selected the Union as their collective-bargaining representative. 5. Whether, if Respondent violated the Act as alleged in the complaint, an appropriate remedy should include a re- quirement that Respondent recognize and bargain with the Union. 1 The unopposed motion of the General Counsel to correct the steno- graphic transcript is denied The reporter did not make a mistake B. The Principals 1. Joseph A. Hane 889 Joseph Hane learned the trade of service station mainte- nance mechanic in Los Angeles. He moved to San Jose in 1967 and worked for a maintenance company as mechanic and supervisor until he started his own business in 1973. He acquired a license from the State of California as a specialty contractor and sought contracts with major oil companies, independent oil companies, and independent garage and carwash owners, to maintain and repair their operating equipment. As of June 4, 1975, he employed four persons. The mechanics, Mawhinney, Laster, and Brooks were each assigned a truck in which they carried tools, equipment, and supplies. Their working hours were 8 a.m. to 4:30 p.m. with half an hour for lunch. Hane, himself, was on call 24 hours a day, 7 days a week and because he was necessarily absent from his Redwood City shop, work- ing as a mechanic, he employed a dispatcher, during the hours of 8 a.m. to 12 noon and from 1 to 5 p.m. His wife, Shirley Hane, worked 2 days a week as billing clerk and bookkeeper. As of June 5, 1975, when he directed Mrs. Hane to dis- charge all three mechanics, he had only one contract, that with the Shell Oil Company. In July he entered into a limit- ed fixed cost contract with Mobil Oil Company. Between June 5 and 14, Hane employed no mechanic, and worked from 6 a.m. until 9 or 10 p.m., 7 days a week. Between June 14 and July 1, he hired three mechanics. Beginning in Au- gust 1975, Shell progressively took over the maintenance which Respondent had been performing. By the end of September, work had fallen off to the point where it could all be handled by Hane and one other mechanic. From early October through November 7, Respondent had only two employees, a salesman-dispatcher, Ed Dillon, and one mechanic, Jerry Burke. 2. Carlos Cartagena Cartagena was hired in January 1975, as radio dispatch- er and resigned in mid-June. All trucks were equipped with two-way radios. Cartagena received and recorded service calls from Respondent's customers, scheduled them ac- cording to priorities and assigned them to mechanics ac- cording to their mechanical abilities. Each mechanic kept his own time and turned in his timecard to Cartagena either at the end of the day or at his next call to the office. Mechanics were permitted to take their trucks home and were expected to call Hane before leaving home each morning for their first assignment, which might be either at the shop or at some service station. If their work in the field ended before normal quitting time, and Cartagena had no new assignment, he could authorize them to, go straight home without returning to the shop. Similarly, if the assigned task could be completed by working a short amount of overtime, Cartagena could authorize them to finish thejob. He could also authorize mechanics to take as long as half days off work for personal business. This was the limit of Cartagena's authority. He could not hire, trans- fer, suspend, lay off, recall, promote, reward, or discipline 890 L•ECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. Having no knowledge of the mechanical re- quirements of the mechanics' work, he could not responsi- bly direct them, and he had no power to adjust their griev- ances. Hane was at all times instantly available should any problem arise. Hane throughout the working day was either in the shop, or at a servica station where he could be reached by telephone or in his truck where he could be called by radio. Cartagena's power of assignment was of a routine and cler:cal nature. Cartagena was not a supervisor within the meaning of Section 2(11) of the Act. Cartagena had further clerical responsibilities. Each me- chanic, upon completing a service call was required to complete ajob ticket showing the nature of the repair, des- cribing the work done, the model and serial number of the equipment worked on, and the mechanic's time. One copy of the job ticket was left with the service station manager. Another copy of the job ticket, signed by the service station manager was delivered by the mechanic to Cartagena, who was required to check these tickets against the mechanic's timecard. Since it was not practicable for every truck to carry all the small parts which could co.iceivably be required on every repair job, each mechanic was issued a petty cash fund of $25 with which to purchase such items at local stores. Upon presenting receipts for such purchases the me- chanic was reimbursed. The trucks also carried some small items for sale to the stations which they serviced. Upon making a cash s,-.le, the mechanic was required to prepare an invoice and to turn in a copy of the invoice and the proceeds of the sale to Cartagena on his next call at the shop. On this record, Cartagena was an office clerical employ- ee and should be excluded from the unit, alleged in the complaint, and admitted by an amendment to the answer, to be appropriate for collective bargaining. 3. William Mawhinney Mawhinney when first hired by Respondent in March 1974, was an experienced service station maintenance me- chanic with special competence in electrical maintenance. His rate of pay was $5 per hour. On June 6, 1974, he quit to go to work for a competitor of Respondent's. In February 1975, after being laid off by the competitor, Mawhinney and another out-of-work mechanic applied to Hane for employment. Hane, being willing to employ Mawhinney, but not the other man, told both that there was no work available. Hane then obtained Mawhinney's telephone number from the California Department of Employment, where he was registered and invited him to return to work. Mawhinney was reemployed at $5.25 per hour. His work was entirely satisfactory from February 1975 until June 3, 1975. He was discharged June 5, 1975.2 4. S.anley Laster Laster had no prior mechanical experience when he was 2 The events of June 3, 4, and 5, culminating in the discharge of three employees on June 5, 1975, are detailed in the next section of this Decision hired as a trainee in February 1974. He rode with experi- enced mechanics until he gained enough experience to be assigned to a truck and, as he learned to handle specific jobs, he was assigned to work in the area of his compe- tence. His starting rate was $4 per hour. He received four wage increases and, when discharged June 5, 1975, was receiving $4.85 per hour. His principal work was repairing gasoline pumps, meters, and compressors. Starting time for all mechanics was 8 a.m . Driving time from Laster's home in Woodside to Respondent's Red- wood City shop was 30 minutes. Hane asked Laster to be in his truck, where he could be reached by radio telephone at 7:30 to receive his initial assignment, which might be anywhere between Santa Clara and San Francisco. Laster refused to answer his radio or to leave home before 7:45, and Hane acquiesced On March 24, 1975, Laster was forced off the road by a schoolbus and was forced to call a tow truck. He did not report the incident. When Hane received the towing bill on April 10, he asked Laster to get the number of the bus and the name of the driver. Laster did not comply. When Laster took his vacation in April 1975, he left his truck at the shop. Hane, in the process of cleaning trash out of the cab, found several invoices for cash sales which had been marked paid. When Hane asked for an explana- tion, Laster said he had used the money to buy parts, but was unable to produce receipts. Laster testified: "I could see no way out of it, so I paid Hane for the invoices which he found in my truck, about $32.00." Toward the end of May 1975, Laster carelessly ran over a projecting tree root, severely damaging the doorframe and door to the tool compartment of his truck. Throughout the entire period of his employment, Laster had trouble with his paperwork. Laster testified, "[Hanel said it was never done right .. ." and conceded, "I had a real habit of forgetting serial numbers." Laster was discharged on June 5, 1975 He returned to the shop on or about June 9. Laster testified, without con- tradiction: Well I walked in and I asked [ Hanel if he had any- thing to say to me. He said, "That depends." He asked me if I still felt the same way about the union and I said, yes, I thought that the union was a good idea. And he gave me some figures that we were paying out something like $2,000 a month and only billing the customers $12.00 an hour, and if the union got in there how were we going to pay $10.00 an hour . . . I got up and walked out. On August 13, 1975, Laster received the following letter: August 11, 1975 Dear Mr Laster: This is to inform you that as part of a settlement agreement entered into between the National Labor Relations Board and Peninsula Service Station Equip- ment Company, we herewith offer to reinstate you to your former position with us at the same wage rate and other benefits as you were earning at the date of your dismissal. Please notify us of your acceptance of this offer within five (5) days of the date you receive PENINSULA SERVICE STATION EQUIPMENT COMPANY 891 this letter. If we fail to hear from you, we will assume that you are not interested in returning to work for us. PENINSULA SERVICE STATION EQUIPMENT COMPANY JOSEPH HANE Laster was reemployed by Respondent on August 18, 1975. Respondent had recently undertaken a major recon- ditioning program for Mobil Oil Company. Pumps were picked up at the Mobil terminal and brought to Respondent's shop. Laster was assigned the work of setting up a test operation, cleaning the pumps inside and out, repainting, refurbishing, testing, lubricating, and otherwise preparing the pumps for installation at their new locations. This work was well within the area of his special compe- tence. Laster objected to this assignment and, describing his complaint to Hane, testified: Well I had gone to pick up the letter . . . and upon reading it I verified that it said I would get my past position back. I confronted Joe with that, and said that I didn't feel I had got my past position back, that I was a field maintenance mechanic and now I was a shop mechanic, I had not been issued a truck, and I thought that was unfair being that everybody else that was working there that had come in after our dis- charge had a truck and I didn't And he pointed out that the people that are working there now did not support the union, and I said that I didn't think that that fact had any bearing on it, because if we hadn't been illegally fired in the first place, those people wouldn't even be here He made a point about he couldn't meet the excessive amount of money that the union would make him pay, and I told him I didn't think that was true, because with the Millwrights you negotiate what the employer can pay, and they don't come in and make a set amount. And I said, anyway, that I believed the union was pressing for a court or- der that he would have to bargain with the union any- way, and he said before he would bargain with the union because of a court order he would rather close the doors "I just heard the latest on your shit." He informed me that Bill Mawhinney wished to come back and that before he would reopen the case he would rather close the doors . . . . He said something to the fact that he thought the case was closed with me coming back, and that before he would accept Bill back he would rather close the shop, he had had enough. Hane, describing the same incident, testified: Well, I had received notice that I was to notify Bill, offering him reinstatement . And as I walked back through the shop I stated, as a comment , that I was getting some more of Stan's shit, as I called it, and that was the extent of the conversation. Q. (By Mr. Livak) Did you ever make the statement that you would close the doors before you would re- hire Mr. Mawhinney? A. No, I don't recall making that comment at that time, but I had made a comment that if I had to hire everybody back, with the people I had, I was going to have to lay somebody off because I was getting over- staffed Laster was laid off for lack of work in early October 1975. One mechanic, Burke, who had been hired after the June 5 discharges, was retained in Respondent's employ. Burke had over 25 years of experience as a service station maintenance mechanic. 5. Edward Brooks Brooks was hired March 31, 1975, as a maintenance trainee. Although he had worked as an auto mechanic in service stations, he had no experience in service station maintenance. Although assigned a radio-equipped truck, his work was largely confined to lesser skilled jobs such as replacing a tile in a restroom wall or replacing a defective hose. He was discharged with the other mechanics on June 5, and was offered reinstatement on August 2, 1975. Brooks did not respond " Because I was not interested in going back to work for him." Hane, describing the same conversation testified: Stan confronted me as to why I hadn't put him in a truck . . . and I told him that I had enough work that had to be done, that he was working in the shop, that I had to hire him back as a mechanic and he was doing mechanic work and I didn't have a truck avail- able that was in good enough condition to be used,3 so he was going to have to be satisfied with working in the shop until we got squared away. Hane categorically denied ever making a statement that before he would bargain with the Union he would close the doors of his business, and did not recall any discussion of the Union in the conversation with Laster above set forth Laster testified that about 2 weeks after he returned to work, and right after Hane had been talking on the tele- phone, Hane said to Laster: The truck which had been damaged by Laster had been in a collision on June 30 and had not been repaired C. June 3, 4, and 5, 1975, Problems-Union Activity-Discharges On June 3, 1975, Mawhinney was dispatched to a Shell station at the Lockheed complex on Moffett Field, near Sunnyvale The overhead door giving access to the me- chanical service section of the station was not functioning properly and it had required the combined efforts of three men to open the door that morning. Mawhinney was un- able to effect a repair and reported by telephone to Hane that he thought the door needed a new spring, and that Hane should call a professional door company to make the repair Before 8 a in., on June 4, the irate manager of the Lock- heed Shell station called and said he could not get the door open. Cartagena phoned Mawhinney at his home in San Jose and told him to help the man get the door open, so he could operate the station until other arrangements could be made 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At 8 o'clock on the morning of June 4, Brooks started to install the dash controls on the two-way radio in a newer truck which had just been assigned to him. While the truck had been out of service, the controls had been disconnect- ed and placed under the seat with the main body of the radio. Hane found a wiring diagram and undertook to help Brooks. Seeing that the diagram was for a different model of radio, Hane told Brooks to replace the seat and to go about his assigned tasks of delivering signs to service sta- tions. Brooks, ignoring Hane's instruction, obtained the telephone number of a radio service company and called their service representative. When the serviceman told Brooks: "That's not right, you've got it all wrong." Brooks announced, "A lot of help you've been, wise ass" and hung up the phone. Hane and Brooks went back to Brooks' truck. Hane, seeing that the seat was still out, removed the radio from Brooks' truck and took it to his office, repeating his instruction to Brooks to get to work. Brooks walked away and went to the restroom because he "was angry and didn't want to get involved in an argument." Hane then received another call from the Lockheed Shell dealer. Mawhinney had driven up, looked at the door, and driven off without doing anything. The dealer threatened to call Shell Oil Company. Mawhinney admit- ted to Hane that he had not touched the door that morning and repeated his recommendation that Hane call a door company. Hane then drove to Sunnyvale and repaired the door. The door was balanced by a spring, drum, and cable mechanism. The cable had slipped off the drum. After Hane left for Sunnyvale, Brooks emerged and drove home in the truck on which he had been working. Brooks then telephoned Cartagena and left a message for Hane. I told him to tell Joe Hane that I was striking for wages and conditions, that I was unhappy, and that Joe knew my telephone number if he wanted to talk to me about the matter. Cartagena delivered the message. Hane answered: "That's fine with me. If he wants to be on a strike he can stay on a strike. Call him back and tell him he's fired and to bring the truck back." Cartagena tried several times to phone Brooks but on each occasion there was either a busy signal or no answer. After notifying Cartagena that he was on strike, Brooks called the Union and spoke to Business Agent Ralph Black. Black told Brooks "that it would be important to get agreement among the employees that they all or most of them wanted to have a union, notjust myself" and that he should "get together with the other employees, have a meeting with them, and then we can go from there." That evening Brooks phoned Mawhinney and Laster and both expressed interest in the Union. Next morning, June 5, Mawhinney was dispatched to the Armstrong Shell station in Santa Clara on an emergency call. The compressor was not functioning and the station had no air and could not operate its hydraulic lifts. He arrived at the station between 7:30 and 8 a.m. and worked on the compressor for about an hour and a half, meanwhile reporting to the shop that he would require a loaner com- pressor. Shortly after 8 a in. on June 5, Brooks phoned Hane who agreed to see him at 3 p.m. to discuss grievances. Brooks offered to "come in and work now in the interim, between now and the meeting." Hane assented and told Cartagena to have Brooks prepare the standby compressor and deliv- er it to Mawhinney in Santa Clara. Hane then left for San Bruno where he was doing some underground repair work at a service station. Brooks, Mawhinney, and Laster all arrived at the shop about 9.30. Laster had received permission from Cartage- na to take his dog to the veterinarian that morning and did not start work until 10 o'clock. Mawhinney had decided to drive back to Redwood City to get the standby compressor. There was general discussion of the Union. Brooks tele- phoned Black from the shop, and it was agreed that Black and Green from the Union would meet with Respondent's employees at 12 noon at a Denny's Restaurant two blocks from the shop. Mawhinney returned to Santa Clara with Brooks as passenger. Laster was dispatched to a job, and Cartagena remained alone in the shop. When Mawhinney installed the standby compressor "an electrical safety device self destructed." Mawhinney called Cartagena and asked whether he should return to the shop for a new device 4 or whether he should purchase one in the neighborhood. Cartagena said he should return to the shop. Mawhinney completed the installation of the stand- by compressor without the safety device. He told the sta- tion manager that he could have air if he would turn on the compressor and watch the pressure gauge and turn off the compressor when the gauge showed sufficient pressure in the tank. He warned the manager that if the compressor were left running unattended, then it would blow off the-there was another safety device 5 on it which would blow off, but it was the last safety device and it wasn't desirable to have that one blow off. Meanwhile, about 11:45, Brooks telephoned Cartagena, and I told him that we were tied up at the job, Bill and I were, and that we wouldn't be able to make the 12:00 o'clock time with the union men, and would he meet them. And that we would be there as soon as we could. At 11:57 a.m.6 Cartagena telephoned Hane who was working in San Bruno , told him that the men were having a meeting at Denny's at noon to discuss working condi- tions and that Cartagena had been invited . Hane testified: I told him to go ahead and go over there and in my words, I told him to see what their bitch was about. And because it was customary for him to go home for lunch, I told him that if he wanted to go ahead and go 4 This was a pressure-actuated electric switch which maintained a safe operating pressure in the air tank by automatically starting and stopping the compressor 5 A plug in the tank designed to blow out before the tank blows up 6 The time of these telphone calls is established by Respondent's long distance telephone bill PENINSULA SERVICE STATION EQUIPMENT COMPANY 893 over there, why I would pay for his lunch on that day. I told him to be sure and advise the mechanics that they had only thirty minutes for lunch. Cartagena met with union representatives, Black and Green, at 12 noon. Laster, having completed his assign- ment, arrived a few minutes later. Brooks and Mawhinney joined the party about 12:30. When Cartagena, in compli- ance with Hane's instruction, "advised [the mechanics] that they had half an hour for lunch," Laster responded, "We could go ahead and work until 5:00 o'clock." Cartagena did not reply. Mawhinney, Laster, and Brooks signed cards for the Union. Cartagena did not sign a card. The meeting broke up shortly after 1 p.m. When Mrs. Hane arrived at the shop about 12:45 p in. on June 5, no one was there. At 12:48 p.m. she telephoned her husband. Mrs. Hane testified: He wanted me to call the Labor Board-he wanted to know if the guys had got back from work yet, and I said "`No." And he wanted me to call the Labor Board and talk to a deputy and see if it was legal to fire them because they had taken an extended lunch hour. Hane testified that he wanted an opinion from the Labor Commissioner of the State of California because: Well, I had laid off some previous employees, trainee dispatcher for one, and some other trainee mechanics that wasn't able to do the job, and I found that they were entitled to draw unemployment soley because they weren't working to my satisfaction, and I wanted to have a Labor Commissioner's ruling as to what was cause for dismissal. At 12:50 Mrs. Hane called the state office in San Mateo and was told that all the deputies were out. At 12:53 she called again and was told that she should call the State Wage and Hour Commissioner in San Francisco. She called San Francisco at 12.54, and was told that all the deputies were out. At 1 p.m. she called San Mateo for the third time and was told that the deputies were still out. At 1:02 p.m. she called the state office in San Jose. There was no deputy there, but the clerk to whom she spoke said she thought it was probably legal to discharge the employees, but Mrs. Hane should talk to a deputy. At 1:07 p.m. Mrs. Hane called her husband and report- ed: I told him I had called these three different places, there wasn't any deputies in, and all I talked to was the secretary that answered the phone and they told me they thought it was legal to fire them because they had taken an extended lunch hour, but I had better talk to a deputy. Hane advised her, "As soon as you find out if it's legal or not, fire them." At 1:16 p.m. Mrs. Hane again telephoned San Jose and was told that no deputy had as yet returned. While she was on the telephone, Cartagena entered the outer office. A few minutes later Mawhinney and Laster entered, followed by Brooks. Mrs. Hane greeted them with, "What's it going to be?" or "What are you going to do?" Brooks answered, "We're going union." Just then the phone rang. Cartagena answered . It was a deputy labor commissioner returning Mrs. Hane's call, and she took the call in the inner office while Cartagena and the mechanics waited outside her door. Mrs. Hane asked the deputy commissioner: Is it legal for employees to take an unauthorized ex- tended lunch hour, especially when the boss was out of town and didn't know anything about it, was that cause to fire them? The deputy commissioner answered: `Definitely, they shut down your business." Mrs. Hane immediately telephoned her husband (1:19 p.m.). She told him that "the Labor Commissioner said it was legal to fire the guys for taking an unauthorized ex- tended lunch hour because they had closed down our busi- ness." Joseph Hane then told Mrs. Hane "to get their keys, tell them to park their trucks, that they were fired." Mrs. Hane then returned to the outer office and told the mechanics that they were fired. She said the reason was "that they had put a stop to the company by all three put- ting a stop to their work, and that it was illegal because they had not done it on their own time, they had done it on company time." Mawhinney removed his personal tools from the truck, placed them on the sidewalk, and telephoned his wife. While Mawhinney was waiting for his wife to come and get him, Hane returned to the shop. Hane greeted Mawhinney with, "This union shit aint going to get it around here." Mawhinney described the unsafe condition in which he had left the compressor in Santa Clara and Hane warned him that if the thing blew up, Hane would hold Mawhin- ney responsible. Hane went to Santa Clara that afternoon. On checking the power source, he found that one element of a dual circuit breaker was defective, so the original compressor had only been receiving half power. Hane replaced the cir- cuit breaker, reinstalled the original compressor, which was not defective, and brought the standby back to the shop. Fortunately the station manager had not attempted to use the standby compressor in its unsafe condition. D. Concluding Findings 1. Joseph Hane, when he offered to pay for Cartagena's lunch while attending a meeting of his employees to 'dis- cuss working conditions," and "to see what their bitch was about," engaged in surveillance of protected concerted ac- tivities and thereby interfered with employee rights guaran- teed in Section 7 of the Act. 2. Mechanics had no set time for lunch . They were ex- pected to work 8 hours each day, and to take 30 minutes for lunch at times which would not interfere with the per- formance of their assigned tasks. They kept their own time. When mechanics, without checking with Hane or the dis- patcher, showed more than 30 minutes for lunch (on occa- sion more than 1 hour) they were neither questioned nor disciplined . They were expected to and did make up the time at the beginning or at the end of the same day. When Laster, in answer to Cartagena's reminder of the 30-minute 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD limit, said `We could go ahead and work until 5 o'clock," his comment evoked no response from Cartagena. Cartagena had authority to extend the employees' lunch period. His failure to respond to Laster's statement that they would work late to make up for time lost constituted a grant of such permission. All mechanics were on their own time throughout the extended lunch period. Hane, when he decided on June 5, 1975, to discharge all of his mechanics, believed that they were then engaged in a strike for improved working conditions. His only concern in checking with the State of California was to be sure that he had a reason which would not penalize his unemploy- ment insurance account. Hane's greeting to Mawhinney, "This union shit amt going to get it around here," demonstrates that he was aware, from some source, when he directed his wife to dis- charge the mechanics, that they had been engaged in union activity. Hane's primary motive in ordering the discharge of the three mechanics was an intent to discourage union and protected concerted activities, and his action violated Sec- tion 8(a)(1) and (3) of the Act. 3. Hane's offer of reinstatement to Brooks was full and complete and was made in good faith Respondent's back- pay liability to Brooks, since he failed to reply to the offer, terminated on August 2, 1975. 4. Mawhinney's irresponsible conduct in leaving an air compressor in a highly dangerous condition forfeits his right to reinstatement. When Hane announced to Laster that he would rather close the shop than take Mawhinney back, he was stating a wise decision. Any employee of the service station, or even a customer wanting air for his tire, could have turned on the compressor and left it unattend- ed. While there is a safety valve in the air tank, if that should fail, the blowup could occur at any point in the air lines or the tank itself could explode with the possibility of great injury to person or property or both. 5. Laster's reinstatement was full and complete. He was assigned to work with which he was familiar. The truck which he had been using was out of service. No other em- ployee was as competent to perform the work. Laster's lay- off in October is not alleged to be an unfair labor practice and I find that it was not. Layoffs were required by the diminution of Respondent's business. Seniority was not recognized by Respondent. The employee retained had 25 years of experience as compared with less than 2 years of training and experience possessed by Laster. 6. Hane did not "[o]n or about September 1, 1975, threaten employees that he would close Respondent's facil- ity if the employees selected the Union as their collective- bargaining representative." This allegation was added to the August 28 complaint by amendment dated October 23, 1975. It is supported by the testimony of Laster Q. (By Mr. Seagle) After your conversation with Mr. Hane concerning Bill Mawhinney, did you have a conversation with Hane concerning your own job? A. Yes. . . and he said before he would bargain with the union because of a court order he would rather close the doors. Q. When Mr. Hane made these statements about closing the doors were Ortega and Calderella present? A. Yes, they were The General Counsel did not produce any prehearing statement outlining any such testimony. Neither Ortega nor Calderella was called as a witness, though neither was, on the dates of the hearing, employed by Respondent. Hane's convincing categorical denial that he had ever made any such statement is in sharp contrast to his tacit admission in the following exchange: Q. (By Mr. Livak) Did you ever make the statement that you would close the doors before you would re- hire Mr. Mawhinney? A. No, I don't recall making that comment at that time . . . I conclude that Laster's testimony in support of the amendment to the complaint is the product of a suggestion, unconsciously conveyed by the General Counsel in a pre- trial interview, and was accepted by the General Counsel without any attempt at verification. 7. Although the Union did, at 1 p.m. on June 5, 1975, represent all of Respondent's employees in a unit appropri- ate for collective bargaining, Respondent should not, in all the circumstances of this case be ordered to recognize and bargain with the Union. An order to bargain is justified only when it appears, from the past conduct of an employer, that a fair election, following the issuance of an order remedying proven unfair labor practices, cannot be conducted. The bargaining order operates strictly infuturo. Although Hane's union animus is apparent, there is no indication on this record that he will, in the future, permit that animus to lead him into any vio- lation of the National Labor Relations Act. He cooperated fully with the Regional Office in its investigation of this case and is presently represented by competent counsel The violations herein found were committed solely because of Hane's ignorance of his obligations under the Act. Part of his motivation for the discharge of the three mechanics was, as cogently argued by Respondent's counsel, "a final fit of exasperation." Hane could see no reason for his em- ployees to complain about "working conditions." It was Hane's working conditions which were intolerable. In quick succession he had been subjected to. (a) the expense of repairing a truck damaged by Laster's negligent driving on top of the constant irritation caused by Laster' s consis- tent failure to complete his paperwork; (b) Mawhinney's incompetent work and insubordinate conduct in connec- tion with the overhead door, jeopardizing Hane's contract with Shell; and (c) the juvenile behavior of Brooks on June 4. As of the date of the hearing there was only one fact which would prevent the holding of a fair election. As of the date of the hearing, due to economic circumstances completely unrelated to any unfair labor practices, there was only one employee in the unit appropriate for bargain- ing, and the Board is not permitted by law to certify a one-man unit. PENINSULA SERVICE STATION EQUIPMENT COMPANY 895 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth above, occur- ring in connection with the operations of Respondent de- scribed above, have a relation to trade, traffic, and com- merce among the several States, sufficient in nature and volume to require the Board to exercise its jurisdiction, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that Respondent has engaged in cer- tain unfair labor practices. It will therefore be recommend- ed that he cease and desist therefrom and take certain affir- mative action, as set forth in the recommended Order below, designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Joseph A. Hane, doing business as Peninsula Service Station Equipment Company, Respondent herein, is an employer within the meaning of Section 2(2) of the Nation- al Labor Relations Act, engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Millwright and Machinery Erectors Union, Local No. 102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Edward Brooks, Stanley Laster, and William Mawhinney to discourage membership in the Union, and because they met to discuss working conditions on their own time, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By instructing an employee to report to him on the protected concerted activities of fellow employees, Respon- dent has engaged in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' Respondent, Joseph A. Hane, doing business as Peninsu- la Service Station Equipment Company, his agents, succes- sors, and assigns, shall: I Cease and desist from- (a) Engaging in surveillance of the union or protected concerted activities of his employees. (b) Discouraging membership in or activities on behalf of Millwright and Machinery Erectors Union, Local No. 102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, by discharging or refusing to reinstate or otherwise discrimi- nating against employees in regard to their hire or tenure of employment, or any term or condition of employment. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Make whole Edward Brooks and Stanley Laster for any loss of earnings suffered as a result of the discrimina- tion against each. The backpay period for Laster is June 5 to August 18, 1975. The backpay period for Brooks is June 5 to August 2, 1975. Backpay shall be computed in the manner set forth in F. W Woolworth Company, 90 NLRB 289 (1950), with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (b) Preserve and, upon request, make available to the Board or its agents for examination and copying, all pay- roll records, personnel records and reports, timecards, so- cial security payment records, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at his shop in Redwood City, California, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Joseph A. Hane, shall be posted immediately upon receipt thereof, and be maintained by him for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken to ensure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 20, 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 complaint be dismissed insofar as it alleges violations of the Act not specifically found. rIn the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided, in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes s In the event 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"