Towne Chevrolet

TOWNE CHEVROLET Towne Chevrolet and Amalgamated Local Union 355, Autoworkers of New Jersey. Case 22-CA-6808 June 27, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On October 8, 1976, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, the Charging Party filed cross-exceptions and a brief in support thereof, and the General Counsel filed a brief in opposition to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order, as modified herein. We agree with the Administrative Law Judge that the Respondent violated Section 8(a)(1) of the Act by interrogating employees concerning their union activities, by soliciting employee complaints, and by promising and granting improved conditions of employment in order to discourage their support for the Union. Further, we agree with her conclusion that employees Velders, Bijas, and Macklin were terminated for discriminatory reasons in violation of Section 8(a)(3). We also find that the strike here in question was in part caused by the Respondent's termination of Velders and Bijas and its refusal to reinstate them and, accordingly, that it was an unfair labor practice strike. However, unlike the Administrative Law Judge, we find that the Respondent did not violate the Act by informing the striking employees that it would cease paying insurance policy premiums on their behalf, or by discontinuing such payments, as the aforesaid employees are not entitled to compensation for the period they are on strike, 2 Moreover, on the facts and for the reasons set forth below we find that Gary Bouchet, a full-time student who is engaged in training at the Respondent's establishment under a state vocational training I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. 230 NLRB No. 60 program, should be excluded from the unit herein found appropriate. The record shows that 17-year-old Bouchet is enrolled as a full-time student at a vocational high school in New Jersey under a cooperative industrial education and special needs program. Supervised training under this program permits students to gain practical experience in a variety of occupations and trades which would otherwise be denied them under state law restricting the employment of minors under 18 years of age. Pursuant to the aforesaid program, Bouchet, his father, a high school teacher-coordina- tor, and a representative of the Respondent entered into a training agreement under which the latter agreed to employ Bouchet on a part-time basis "for the purpose of training the student in the automotive trade." Among other things, this agreement requires that student-learners work a minimum of 15 hours and a maximum of 20 hours per week while school is in session.3 The Respondent, who is responsible for Bouchet's on-the-job training, is required to prepare progress reports at regular intervals and must permit the teacher-coordinator entrance onto the premises whenever the latter needs to observe and evaluate the student. Bouchet, on his part, may not change jobs without the approval of the teacher-coordinator. The agreement also provides that Bouchet "while in the process of training, will have the status of student- learner, neither displacing a regular worker nor substituting for a worker that ordinarily would be needed by the [Respondent I." The agreement may be terminated by the Respondent or the teacher-coordi- nator at any time after consultation with the other. It is clear from the foregoing that Bouchet is primarily engaged in vocational training in a learning environment over which the Respondent and the teacher-coordinator together exercise a substantial degree of control. It is equally clear, indeed it is expressly stated, that the training program is not intended to meet the Respondent's staffing require- ments. Bouchet himself does not participate in the program for the purpose of earning a living but rather to develop proficiency in a trade he subse- quently intends to enter. In these circumstances, we do not believe that Bouchet is adequately identified with those in the bargaining unit to share a community of interest with them.4 Instead, we view the relationship between Bouchet and the Respon- dent more as an educational rather than as an employment relationship where the circumstances 2 Trading Port, Inc., 219 NLRB 298, 299, fn. 3 (1975). 3 Under conditions established by the State of New Jersey, students are permitted to work longer hours when on vacation. 4 N.LRB. v. Certified Testing Laboratories, 387 F.2d 275, 277 (C.A. 3, 1967); Pawating Hospital Association, 222 NLRB 672 (1976). W & W Tool d Die Manufacturing Co., 225 NLRB 1000 (1976), relied on by the Administrative Law Judge, is inapposite to Bouchet's situation herein. 479 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affecting the performance of work are subject exclusively to an employer's right of control. Accord- ingly, we shall exclude Bouchet from the unit here in question. Excluding the card signed by Bouchet, only 5 of the Respondent's 10 unit employees have signed cards designating the Union as their representative, which is less than the majority required to justify the imposition of a bargaining order in the circumstances of this case. We shall, therefore, delete the require- ment that the Respondent bargain collectively with the Union as the representative of the employees here involved. 5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Towne Chevrolet, Middletown, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph 1(c). 2. Delete paragraphs 2(b) and (d) and reletter the remaining paragraphs accordingly. 3. Substitute the attached notice for that of the Administrative Law Judge. 5 Macklin, whom the Respondent hired to replace Velders after the latter was discriminatorily discharged, was one of the five individuals to sign a union authorization card. As his card is no longer determinative in establishing majority status, we find it unnecessary to pass on its validity. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees about their union membership, solicit employee complaints, promise or grant improved conditions of employ- ment, tell employees that an employee had been terminated because of his union activities, in order to discourage membership in or activities on behalf of Amalgamated Local Union 355, Autoworkers of New Jersey, or any other labor organization, or in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, except that noth- ing contained herein shall be construed as requiring us to revoke any employee benefits previously granted. WE WILL NOT discharge, lay off, or otherwise discriminate against any employees in regard to their hire or tenure of employment, in order to discourage membership in or activities on behalf of the above-named union or any other labor organization. WE WILL make Frank J. Velders and Richard T. Bijas whole for any loss of pay each of them may have suffered as a result of the discrimina- tion against them, and WE WILL offer the employees who have been engaged in an unfair labor practice strike that began on February 16, 1976, upon application, reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, discharging, if necessary, any replace- ments hired since they went on strike, and WE WILL make each of the striking employees whole for any loss of earnings they may have suffered by reason of the failure, if any, to reinstate them, upon application. TOWNE CHEVROLET DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon charges and amended charges filed on February 18, March 3, and April 9, 1976,1 respectively, by Amalgamated Local Union 355, Autoworkers of New Jersey, herein referred to as the Charging Party or the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 22 (Newark, New Jersey), issued a complaint and notice of hearing on April 19. The complaint, as further amended at the hearing, alleges in substance that Towne Chevrolet, herein called the Respon- dent, solicited employee complaints and informed employ- ees it preferred to deal with them without the intervention of the Union on or about January 26 and 28; granted employees an improvement in working conditions on or about February 4 to induce them to refrain from union membership or activities; informed employees on or about February 5 that an employee had been terminated because of his union activity; discharged Frank Velders on or about February 6, laid off Richard Bijas on or about February 12, and thereafter failed and refused to reinstate them because of their union or protected concerted activities; since on or about February 16 refused to recognize and bargain collectively with the Union as the exclusive representative of the Respondent's employees in an appropriate unit; on a date between February 16 and March 10, permanently replaced Stanley Macklin, an All dates hereinafter refer to 1976 unless otherwise indicated. 480 TOWNE CHEVROLET employee who participated in a strike that began on February 16 and was caused and/or prolonged by the Respondent's unfair labor practices; and engaged in unfair labor practices so serious and substantive in character and effect as to warrant the issuance of an order requiring the Respondent to bargain with the Union; and that the Respondent, by such acts and conduct, has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. The Respondent, in its answer duly filed, denies all the unfair labor practice allegations of the complaint. Pursuant to notice, a hearing was held before me in Newark, New Jersey, on June 9 and 10. All the parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. At the close of the hearing, the parties waived presentation of closing argument. Subsequent to the hearing, briefs were filed on or about July 29 by the General Counsel, the Charging Party, and the Respondent, which have been fully considered. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a New Jersey corporation, maintains its principal office and place of business at Middletown, New Jersey, where it is now, and at all times material herein has been, engaged in the retail sale of new and used automobiles, trucks, and related products. In the course and conduct of its business operations, the Respondent annually receives gross revenues valued in excess of $500,000, and receives goods valued in excess of $50,000 which are transported to its Middletown place of business directly from States other than the State of New Jersey. The complaint alleges, the Respondent in its answer does not deny, and I find that the Respondent is, and at all times material herein has been, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent in its answer does not deny, and I find that Amalgamated Local Union 355, Autoworkers of New Jersey, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Respondent's Supervisors The complaint alleges that Lawrence Tynan, president, John Clark, sales manager, and William Kabe, service manager, are supervisors within the meaning of Section 2(11) of the Act and agents of the Respondent. The Respondent in its answer does not deny these allegations. At the opening of the hearing, however, when the General 2 Board Ford, Inc., 222 NLRB 922 (1976). Counsel sought to amend the complaint to allege that Michael Giannini, new-car department manager, also was a supervisor, the Respondent claimed surprise as Giannini had not been with the Respondent since about mid- January. The amendment was permitted, with leave granted the Respondent to request further time to meet this allegation if necessary. Counsel for the Respondent asserted at the close of the hearing that an effort made to locate Giannini had not been successful, but that no adjournment was requested for this purpose. Bijas testified that his job interview in August 1975 was with Giannini, who said he had to check with a superior but Bijas had the job, and that Bijas and the two other employees who were engaged in preparation of new and used cars received their assignments from and reported to Giannini until Giannini left in late January 1976. At that time Bijas was told that Clark and Kabe would be his supervisors. Clark, who has been the Respondent's sales manager for approximately 10 years and was responsible for the entire sales operation as well as repair and preparation of cars, testified that he did not transmit orders through Giannini but Giannini saw that the work was done; that he was not sure what Giannini's responsibilities were in that regard and did not know what Giannini's title was or if Giannini had one; that he did not supervise Giannini, who worked for the service department; and that he, the used-car manager, and Giannini told the men on which cars they were to work. I find, on the record as a whole, that Giannini had authority to hire employees or effectively to recommend their hire, and that he responsibly directed the work of employees, and, therefore, that Giannini was a supervisor within the meaning of the Act.2 B. Organization of the Union In January Velders discussed organizing a union with other shop employees, who expressed an interest in doing so. On or about January 21, Velders got in touch with Sofield, a business agent and officer of the Union, and arranged a meeting to be held at a bowling alley located near the Respondent's place of business at 6 p.m. on January 22. Velders and Vaspory notified employees of the meeting. Sofield met on that date with Velders, Bijas, Vaspory, Rohloff, and Bouchet. All were mechanics except Bijas, one of the three shop employees who prepared cars. All five employees expressed their desire to become members of the Union, and gave signed membership cards to Sofield. At work the next day, January 23, Bijas asked Jones and Seward, the other two employees who prepared cars, each of whom had been employed by the Respondent for many years, why they were not at the meeting.3 Later that day, Vaspory, who distributed union cards, gave Bijas a card which Bijas asked Jones to sign, but Jones said he wanted time to think about it. 3 Jones and Seward were not called as witnesses. 481 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Shop Meeting on January 28 1. Events before the meeting Bijas testified that on Columbus Day 1975 he said to Giannini that, if they had a union, that day would be a holiday, and that Giannini responded, "if you want to keep your job here . . . do not ever talk about a Union in the shop to Mr. Tynan or any management personnel or they will fire you on the spot." 4 Bijas also testified that, a couple of days before the union organizing meeting in January, he asked Giannini if it was true Giannini was leaving the Respondent; that Giannini said it was, and then asked if it was true as Giannini heard that "we were probably going to vote for a Union"; that, when he said it was, Giannini asked if there was enough prounion sentiment to vote the Union into the shop; and that, when he indicated there was, Giannini said Tynan "was not in favor of a Union in the shop," and he thought Tynan knew of the union activities. Bijas testified that on January 26 he went to Clark's office to discuss a sick-pay grievance; that after they completed that discussion Clark "said to me that he understood there were some grievances down in the shop and he wanted to know what these were. . . he also stated that he was pretty sure there was a move by the people down in the shop to organize a Union and he asked me what were the gripes of the employees and why would they want to vote for a Union"; that Bijas mentioned benefits, pay, hospitalization, insufficient clean uniforms, and cold temperatures in the shop during the winter; that Clark asked whether he thought the majority "would vote for a Union" and he said he did; and that Clark said he did not believe Velders would ever join the Union as Velders left a previous job during a labor dispute, but he said he "felt there was a strong possibility Mr. Velders would join the Union." During this discussion, Bijas testified, he asked for a raise, and Clark said Bijas should do a good job and "if everything quiets down I will see if I can get you a raise." Clark testified that Bijas and he were friendly and discussed problems; that on or about January 26 Bijas came to his office to discuss some problems, including sick pay, supply of uniforms, lack of heat, and work on employee cars after hours; and that he promised to talk to Tynan and get back to Bijas. Clark also testified that his only conversation with Bijas about Velders occurred on the picket line about a week after a strike started on February 16, that he usually stopped at the line to greet Bijas, and that he was not sure how they got into the subject of this conversation but he said to Bijas that Velders would not picket as Velders left a job after 20 years "because of the union," and Bijas responded that Velders was there. At another point Clark testified that he told Bijas during the strike (he did not know when but it was after he had seen Velders on the picket line more than once) that he was surprised to see Velders on the picket line because Velders had quit a former job when a union came in and Velders refused to join it. 4 There is no allegation in the complaint pertaining to this incident, which the General Counsel stated was presented only to show the Respondent's union animus. Clark told Tynan on January 26 about the employee complaints that had been reported to him on that day by Bijas. Clark maintained that he reported only the com- plaints, and did not mention Bijas or the Union, but finally admitted he told Tynan "probably the entire conversation" with Bijas. Tynan testified that he spoke to Clark frequently in the shop, that Clark on January 26 told him of the shop complaints but did not state who made the complaints and said nothing about the Union in this discussion, and that he decided to explain his policies and told Kabe to call a shop meeting. At another point Tynan testified that Kabe decided on the date for the meeting, that Kabe liked to hold them monthly but it was usually every other month, and that he thought the last one was in December 1975 but there was no record of it. Kabe testified that he suggested this meeting in order to prevent a new metrification system that would be applicable to new Chevettes. Most of the employees who testified could recall only one other shop meeting, which was about shop work, and none similar to the one here in nature. 2. The shop meeting On January 28, 2 days after the Bijas-Clark conversation, the Respondent held a meeting of shop employees, who were informed of the meeting by word from Kabe the day before and a notice posted at the timeclock on the day of the meeting. Langhurst, the office manager, attended the meeting. Fair, the parts manager, and Parzeck, the service writer, were told they could attend if they wished, but they and the salesmen did not attend. The meeting began at noon and lasted about 2 hours. Luncheon was provided by the Respondent. Kabe spoke about the new metrification system. Tynan was, however, the principal speaker. He greeted Bijas and Rohloff as the newer employees, and stated that he was explaining company policies as Clark had reported there were employee complaints. He had with him a description of employee benefits printed in a magazine on which he had written some notes. He testified he did this in preparation for issuance of an employee handbook, that he began working on it 3 years ago, that he promised to print it in booklet form so there would be no further question, but that it was not yet completed at the time of the hearing herein and he did not know when it would be completed. At the shop meeting, Tynan read the 29 benefits listed. In setting forth the various benefits, Tynan made reference to the fact that the Respondent had a profit-sharing plan. He described its advantages over the Union's pension plan, one of which was that money owed under the Respondent's plan would be available when due, whereas funds for payment of pensions under the Union's pension plan would probably be dissipated by officers of the Union, and referred to a clipping that he had from the New York Times about abuses totaling millions of dollars by union officials of union welfare funds. Some of the employees testified, however, that they had never heard of the profit- sharing plan or of various other benefits described at this meeting by Tynan, who testified that he believed the 482 TOWNE CHEVROLET handbook notations reflected the policies which were then in effect. Tynan also testified that he thought he was aware in January of all the job benefits but would "certainly forget them" if he did not have a document available to jog his memory; that, when he hired managerial personnel, he told them of the employment benefits, which were greater than those for employees, and he assumed supervisors did so when they hired employees; and that this had to be done from memory as there was no document setting forth the benefits. Tynan was a member and officer of an automobile dealer group that he testified advised members on "the preventive maintenance program designed to keep the union out of your place of business." He testified that he has followed such a program for years and, in the course thereof, has accumulated and maintained a file of clippings and other materials pertaining to four different unions from which he excerpted the clipping about the Union's pension plan that he used at the shop meeting; that he chose this clipping because it pertained to pension plans, but admitted others did also; that he was familiar with the Union, which represents employees in about half the shops in the area; and that his "purpose in maintaining the file is to maintain an ongoing program which will prevent our shop or our employees from becoming interested in unions," but that was "not particularly" his purpose in holding the shop meeting. Tynan testified that after reading the list of benefits he stated that any American had a right to join a union, but he preferred to deal directly with his employees without a union. He also testified that he did not know then of any activity on behalf of the Union among his employees, and denied that he said he heard some employees wanted the Union. According to the testimony of Vaspory, Bijas, Rohloff, Velders, and Bouchet, Tynan brought up the subject of the Union and said he heard some employees wanted the Union and he would do everything in his power to keep the Union out. It is undisputed that Tynan, after describing the benefits, asked the employees what their complaints or problems were. Employees raised questions about the wage rates, lack of sufficient clean uniforms, cold temperatures in the shop during the winter, and the prohibition against working in the shop at any time on their own cars. Velders, one of the first to speak, asked about the charge for work done by Vaspory on Seward's car at regular rather than employee discount rates. Bijas asked questions about employees working on their own cars after hours, about a raise and overtime pay, about the higher rates paid contractors for the same work done by employees, and about the supply of clean uniforms. Questions were also raised by Rohloff, Bouchet, and Vaspory. Tynan answered some questions, indicated he would further consider certain matters, and said as to some problems raised that he was trying to improve the situation. Langhurst testified that he had never before attended a meeting of shop employees; that Tynan asked him to attend this one to answer questions about benefits but Tynan set forth the benefits himself; that he did not know if the benefits were explained to the employees before this meeting; that he maintained hospitalization, sick days, and vacation records and had been working with Tynan since early December 1975 on the handbook which was not yet finalized; and that he thought the profit-sharing plan began in 1974 or 1975, that shop employees participated in it, and that the insurance company in charge sent out yearly statements. Langhurst also testified that he did not recall Tynan saying employees would be unable to collect under the union pension plan, but was not sure Tynan did not say it; that he did not recall if Tynan spoke of unions in general, or said he did not care whether the Union got in or not; and that Tynan did not say he heard the employees wanted the Union. 3. Events after the meeting After the shop meeting, Seward received a refund of $20 for the work done on his car. About a week after the meeting, a written notice was circulated to the shop employees stating that, "Pending the printing of our employee handbook which will detail these and other policies and benefits of employment," they could from 5 to 7 p.m. on Wednesdays, with the express permission and prior approval of the service manager, do work on their personal vehicles but not make major repairs or wash or polish their cars, and that they could obtain parts for GM cars from the parts department at employee discounts. Bijas went to see Clark after the meeting to ask what Clark thought Tynan would do about the matters raised. He testified that during this conversation Clark said he was sure it was the Union that was organizing as it had attempted once before to organize the shop, and that it was not as good as another union Clark named. Clark testified that when Bijas came to see him after the shop meeting and asked what the results were, he said he did not know but would check with Tynan; that Bijas also asked about sick pay for Vaspory; and that Bijas "went over the same thing, uniforms and everything. And he said to me the union gives three uniforms per week. And I said what union. And he said, Amalgamated and that was it. That was the end of the conversation." Clark denied that he asked why Bijas would want to vote for the Union. He also denied telling Bijas that he was sure there was an organizing move in the shop, that he had talked to Tynan about the Union, or that he did not believe Velders would vote for the Union. He testified that he recognized the name of the Union mentioned by Bijas because he had read the newspaper article about the union pension funds which he assumed Tynan showed him. He denied that he told Tynan anything about his conversations with Bijas except what problems were raised, then admitted he related to Tynan "probably the entire conversation" of January 26, but denied that he reported to Tynan the conversation with Bijas about the Union after the shop meeting. Concluding Findings I found Bijas a more candid and believable witness than Clark. I also found the employees who testified about the shop meeting impressive and reliable witnesses, whereas I found Tynan an unconvincing witness whose testimony was contradictory and inherently inconsistent. Moreover, Tynan confirmed much of the testimony of the employee 483 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witnesses. I do not credit Tynan's testimony that he did not know, at the time of the shop meeting, that there was any union organizing activity among the shop employees. The complement of employees was very small. Much of the union discussion and activity took place in the shop. Moreover, Clark as well as Giannini had questioned Bijas about the Union before the shop meeting. I do not credit the testimony of Clark and Tynan that Clark told Tynan about the complaints expressed by Bijas, but did not name Bijas, and did not mention the Union. Clark admitted the Union was referred to in his conversation with Bijas, and also admitted, reluctantly, that he related to Tynan "probably the entire conversation" with Bijas on January 26. Accordingly, I find, on the basis of admissions by the Respondent's witnesses, the credited testimony, and the evidence in its entirety, that Clark questioned Bijas about the union activities and about the employee complaints, and that a shop meeting was announced the next day and held the following day at which Tynan informed employees about the many job benefits available, some of which they had never before heard of, including profit sharing; stated that he preferred to deal with them without a union, and that they could rely on the profit-sharing plan while union officials might dissipate the funds in the union pension plan as they had previously done; and solicited employee complaints and promised to consider them. After the meeting, Tynan granted an improvement in working conditions requested by several employees at the shop meeting, and refunded to an employee part of the charge made for repairs on his car, another matter raised at the meeting. I find, in all the circumstances of this case, that Tynan called and conducted the shop meeting of January 28 in an effort to discourage union membership and activities. I find further that the Respondent interrogated employees about their union activities, solicited employee complaints, and promised and granted improved condi- tions of employment to discourage union membership and activities, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act.5 D. The Terminations 1. Discharge of Velders Velders began working for the Respondent as a line mechanic about October 1971, and was the mechanic with the longest service. He testified that he had previously indicated to Kabe he was thinking of taking a vacation, without setting a date, in order to finish some work on his house, and that on or about Wednesday, February 4, he asked Kabe for a week's vacation to begin on Monday, February 9; that Kabe called him in on Friday, February 6, and suggested that he go on unemployment as he had previously requested; that he said his wife was ill, and Kabe expressed regrets and asked about the remodeling work on his house; that there was no mention of termination; and that he received his week's pay and 5 Surface Industries, Inc., 224 NLRB 155 (1976); Crown Zellerbach Corporation, 225 NLRB 911 (1976). vacation pay on that Friday, the usual payday, and began his vacation on Monday. Velders explained that the reference to going on unemployment was because he had, in late October 1975, asked to be laid off to go on unemployment but Kabe responded only that he was joking, and that thereafter he mentioned casually several times that it would be a good idea. The parties stipulated that Macklin, who began working when Velders went on vacation, was a replacement for Velders. Vaspory testified that, when Kabe was in his work area on Tuesday, February 10, he asked if Velders was discharged or on vacation, and Kabe said Velders "was let go"; that he asked whether this was as a result of Velders' union activity; and that Kabe did not reply, but mentioned some of Tynan's business problems, and finally said Velders was a bad influence on Vaspory, that Vaspory had changed since he became close to Velders. Velders testified that Vaspory had called and said he understood Velders "was let go," that he asked Vaspory to check, and that Vaspory called again to say that Kabe had confirmed the report. Velders testified that he went to the shop on Tuesday and told Kabe he heard he "was let go," and Kabe replied that he had told him so the previous Friday; that he denied this, and said Kabe had suggested he take unemployment; and that on leaving the office, Macklin said, in answer to his question, that Macklin was hired on Thursday, February 5, to begin working on Monday. Velders told Macklin several employees had signed cards in an attempt to get the Union into the shop. Velders then put some of his tools that he was able to carry in his car, and Macklin promised to bring the rest in Macklin's truck. Velders had removed none of his tools before this, and had not applied for unemployment. Velders testified he never received any warnings, verbal or written, about his work or conduct while employed by the Respondent. Macklin testified that he began work on February 9. He applied a few days before that and was introduced by Clark to Kabe, who promised to let him know. Kabe called the next day, asked him to come in to discuss salary, and hired him after they agreed on a salary lower than Macklin originally requested. Macklin testified that Kabe said he was taking the place of another man who was "a trouble maker" and was "given a permanent vacation" because of "Some kind of Union business." Kabe, who has been the Respondent's service manager for about a year, testified that he terminated Velders "for his decreasing productivity and for his increasingly poor attitude toward his work"; that "I observed what I now describe, you know, in continuing increments since probably the latter part of November"; that Velders worked "at par" from the time Kabe began in April until November; that the incident that triggered the discharge was Velders' request on a Friday afternoon, just before quitting time, with no prior notice, "to take, in his words, a couple of weeks off, beginning - not the following Monday - but the Monday after that"; that he told Velders that was not "very much notice" but he would see what he could do; and that he decided over the weekend 484 TOWNE CHEVROLET this showed Velders did not want to work any more, and at a management meeting "mentioned . . . in passing" that Velders asked for a vacation and he intended to replace Velders "if somebody else would come along, you know, as a replacement." Kabe further testified that Macklin was referred to him by Clark; that he interviewed Macklin on February 4, and called and had Macklin come in the next day to discuss salary; and that he hired Macklin when they agreed on salary, to begin on Monday as he had by then finalized his decision to terminate Velders. Kabe denied that he told Macklin who was being replaced, or mentioned Velders or the Union. Kabe gave as another reason for the discharge that Velders asked about six times over a period of about 2 months to be laid off, and gave various reasons such as getting too old or making more money working in his own garage. Kabe admitted he did not accept the suggestion at these times. Kabe testified that Velders had many work deficiencies and took longer than others to do jobs despite Velders' experience. He cited as one of the incidents of poor work by Velders replacing a clutch unnecessarily about 2 weeks before the termination. It had to be removed later and the old one replaced. Kabe testified that he asked why Velders replaced a clutch unnecessarily; that Velders replied only "I don't know"; and that "I said 'It's sure costing us a lot of money.' And I dropped the subject. There was no point in my mind to continue a debate." Kabe described another incident as a valve job on a new vehicle, which Velders said the car needed and "which I agreed with," but the problem continued and the car was "still out there." Kabe testified that when he asked why Velders did not say "there is nothing wrong here before putting it all back together ... His reponse was this same kind of blank I-don't-know attitude." Kabe testified that Velders' mistakes cost the Respondent a total of $300, that mistakes of other employees have cost money but not that much, but that no one ever asked him to account for the $300. Kabe' also testified that, while he never reduced these infractions of Velders to writing, he spoke to Velders about them, and he may have mentioned them "in passing" at a management meeting, but he did not recall ever mentioning this matter to Tynan. Kabe testified as to the termination that he called Velders into the conference room and "exchanged ameni- ties"; that "I spoke to him about his productivity ... and his lack of attitude toward his work. I also reminded him of his previous request to be laid off, in his words. And I informed him that, you know, I had made the decision that, effective that day, that evening or that time, that I had in fact decided to lay him off"; that Velders explained the situation at home had changed as his wife was ill; that Kabe expressed sympathy but "I reiterated that the decision had been made"; that "I believe I told Mr. Velders that, you know, on the completion of his vacation, et cetera - because we had paid him for a week's vacation in that day's check - that, you know, he would - I asked him if he would call me and, if things were different, that perhaps we could consider, you know, re-employment." Kabe testified that he never specifically said Velders could go on vacation, but checked with Langhurst how much leave was due Velders and had the vacation check drawn because he knew Velders wanted it; that he understood Velders would take a vacation whether or not he approved it, but that it was his decision how much time off Velders could take; and that he observed that Velders left on February 6 without any of his tools. Kabe testified that Vaspory sometime after that asked what happened to Velders, and "I explained to Mr. Vaspory that I had laid him off.. . I specifically did not mention anything about a union. I cannot honestly recall whether Mr. Vaspory did, although I don't think so." Kabe testified, as to Velders' visit to the shop on Tuesday, that "He said hello. And I greeted him back. And he said to me, 'Is it true that I'm laid off?' And I said, 'Yes, you are.' And I reminded him of our conversation of that previous Friday. And he said 'Okay,' and he walked out of the shop." Kabe testified that there was, at the time Velders was terminated, a normal flow of business, with appoint- ments booked a week or two ahead, but that there were no records of these appointments as they are discarded at the end of each day, and that he was "sure they have a cumulative monthly total of production of the service department in different areas, but . . . I certainly don't maintain a record of that." Tynan testified that Velders, when hired in about 1972, said he had left his previous job because the shop was organized and he would not permit a union to tell him where he could hang his toolbox. Tynan also testified that Kabe terminated Velders on February 6; that it was Kabe's decision but he knew of it a day or two before; that Kabe made the decision sometime during the week of the termination; and that the termination "was for cause ... productivity . . . for one thing, he had asked to be laid off." He admitted he did not know specifically what the productivity situation was, but Kabe told him "that was one of the reasons that he laid him off." Tynan also testified, on cross-examination by the General Counsel, that Kabe had long wanted to replace Velders, then that Velders' discharge was discussed, prior to the week of the discharge, only in regard to Velders' request to be laid off, and that Kabe never discussed with him prior to that week the replacement or discharge of Velders. Tynan was not able to recall any other shop employee who was ever discharged for cause, or any shop employee who was ever discharged by Kabe, or any termination for any reason in 1975. I find, based upon their demeanor and the nature of their testimony, that Velders and Macklin were more forthright and trustworthy witnesses than Kabe and Tynan, and, therefore, I credit their testimony where it is in conflict with that of Kabe and Tynan. On the basis of the credited testimony, the vague and shifting reasons asserted by the Respondent for the discharge of its senior mechanic and the vague and shifting testimony as to when it was decided to terminate Velders, the timing of the discharge shortly after Velders initiated and played a leading role in the organization of the Union, Kabe's remarks to Macklin about giving a permanent vacation to a "trouble maker" because of "Union business," and the record in its entirety, I conclude and find that the Respondent discharged Velders on February 6 because of his membership in and activities on behalf of the Union, and in order to 485 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discourage activities on behalf of the Union, and thereby discriminated against employees in regard to their hire or tenure of employment, in violation of Section 8(aX3) and (1) of the Act.6 I find further that Kabe, by his remarks to Macklin that the employee Macklin was replacing was "a trouble maker" and was "given a permanent vacation" because of "Union business," thereby confirmed that Velders was discriminatorily discharged, and further interfered with, restrained, and coerced employees in the exercise of their Section 7 rights, in further violation of Section 8(a)(1) of the Act.7 2. Layoff of Bijas Bijas testified that he was called to the office just before 5 o'clock on Thursday, February 12, where Kabe told him he was laid off; that when he asked why, Kabe said there was a slowdown in the work; that he pointed out there were 7 new cars and 5 used cars, more than the average, to be prepared the next day, but Kabe said he knew nothing about that; and that Kabe also said the layoff was until things picked up again but there was no objection to his looking for another job. Bijas, who was 19 at the time of the hearing, was hired in August 1975, as a third man on the crew preparing cars, at $2.50 an hour, and went to $2.75 in 2 weeks. He never received a reprimand or warning. He testified that he worked on 10-15 cars a week; that, at the time of his layoff, about 65 percent of the cars on the lot were not prepared; and that there was not much difference in the volume of work for a period of months before his layoff. Bijas in early January talked in favor of union organization with several shop employees. He attended the January 22 organizing meeting and signed a card. Thereaf- ter he continued his prounion conversations with employ- ees at the shop, questioned Jones and Seward about their failure to attend the organizing meeting, and solicited Jones' signature to a union card. Giannini, found above to be a supervisor, asked Bijas about the union activities. And, as found above, Clark questioned him about the union activities, and reported to Tynan the job complaints voiced by Bijas just before the shop meeting. On the basis of the record as a whole, I do not credit the denials of Clark and Tynan that Clark mentioned the name of Bijas in reporting the complaints. Moreover, Bijas, who was greeted by Tynan at the shop meeting as one of the two newer employees, spoke up at the meeting about several of the employee complaints. He was laid off about 2 weeks later, about a week after the discharge of Velders. Clark keeps in a notebook a handwritten daily log of new- and used-car sales. The used-car manager also writes in this log, and trade-ins. are listed in it, but no dollar values of the cars sold or the trade-ins. Clark testified that the log is the only record of sales the Respondent has; that it shows orders written, not deliveries, which may take 3 months if ordered from the factory as about 30 percent of new cars are; that the factory sends notice of shipping dates but he had none with him; and that some cars are prepared not for delivery but to be placed on the lot. He also testified that in August 1975, when Bijas was hired, the a Carbide Tools, Incorporated 205 NLRB 318 (1973); Board Ford Inc., 222 NLRB 922; W & W Tool & Die Manufacturing Co., 225 NLRB 1000 (1976). sales were "high" and averaged 80-85 a month, and at another point that the sales were 80-95 then, but that the financial statement or a log showing this were not in the hearing room.8 He testified that "high" sales mean about 20 a week or 80 a month, then that sales fluctuate weekly as well as monthly and that 80 a month would be "fair." Clark testified at one point that sales were "quite high" in January, and those cars would possibly be delivered in February depending on whether they were in stock or on order, but, at another point, that the log showed a decrease in January-February, and that, at the weekly management meeting on February 9, Tynan said that, if the sales rate continued, it would be necessary to lay off a man to reduce overhead; Tynan would make a constant check of sales; and Bijas would have to be the one to go as the other two men on this work had been there many years. No warning of possible layoff was given Bijas. Clark testified that Tynan did make frequent checks with him on sales, that Tynan decided to lay off Bijas, and that he assumed Kabe told Bijas of the layoff. Clark testified, on cross-examination by the General Counsel, that Bijas, on the day of the layoff, came to tell him of the layoff, and that: A. I said I didn't know anything about it. I would check and see if it was - what the circumstances were. Q. Okay. Did he tell you why he was laid off? A. No, he did not. Q. Did he say anything about the business being slow or anytning? A. The conversation took ten seconds. He said he was laid off. Q. The question is, did he tell you in that conversation that he was told in turn by someone else from management that he was being laid off because business is slow? A. He said he was laid off temporarily. Q. Okay. But did he say anything about he was laid off because business is slower or things is slow or anything substantively - A. He said he was laid off temporarily. Q. My question is, yes or no, did he say anything to the effect that he had been laid off - he had been told he had been laid off by Mr. Kabe or Mr. Tynan because business is slow? A. Yes, he did. Q. What did you respond to that, if anything? A. He said he was laid off because business is slow, but they told him it was only temporary, and I said, call me tomorrow and I'll find out, you know - Q. Find out what - A. I'll find out if it is temporary, and then - if it's temporary. Q. Isn't it a fact that he told you that he was laid off, Mr. Tynan told him he was laid off - either Mr. Tynan or Mr. Kabe told him he was laid off because business is slow and you said you knew nothing about that? ? Carbide Tools, supra, W & W Tool d Die Mf& Co., spura s It was stipulated by the parties that Clark's pretrial affidavit states that 81 cars were sold in August 1975. 486 TOWNE CHEVROLET A. No. Q. Are you sure of that? A. I didn't say. The conversation took seconds. Q. ... You mentioned something about checking with Tynan. A. He came - Mr. Bijas came to me, said he was laid off temporarily because business is slow. I said, call me tomorrow and I'll just tell you what the situation looks like. Q. Okay. And it is your testimony that you said nothing to him about not knowing anything about the slowness of the business? A. We never discussed it. At another point, Clark testified that he told Bijas he would check with Tynan how many sales were needed to get Bijas rehired; that he checked this but did not report to Bijas because Bijas was to call him and never did; and that Tynan said they had to get to the point of too many cars for two men to handle, as was the situation when Bijas was hired. Tynan testified that he has kept sales records in the past but had none at the hearing. He also testified that, because the rate of sales in early February was poor, he announced at the weekly management meeting on February 9 that it was necessary to cut personnel in order to reduce overhead, that there were more people than needed in the prep department, that Bijas' output was probably equal to that of the other two but Bijas was junior to them by many years, and that Bijas would go unless sales increased that week. He also testified that sales did not increase, that he told Kabe on Thursday, February 12, to lay off Bijas for lack of work, that he had the office prepare the paycheck for Bijas through Thursday, and that he did not wait until payday on Friday because there was insufficient work for the three people, based on sales reports of Clark and Kabe, although he admitted a car ordered was not necessarily prepared right away but might be done months later. Bijas testified that he received a telephone call after his layoff from Sofield, who told him of the strike and invited him to picket, and that he began that afternoon picketing 6 days a week. On February 23, Tynan sent Bijas a written offer of reinstatement. As set forth above, I found Bijas a more credible witness than Clark. I likewise found him more credible than Kabe, who was an evasive and unconvincing witness and whose testimony is replete with the inconsistencies and improba- bilities. I find, based upon the credited testimony and the entire record, that Bijas was laid off, without warning, on the day before payday; that he was laid off about 2 weeks after his prounion sentiments became known and his complaints had resulted in the January 28 shop meeting, and about a week after Velders was discriminatorily discharged; and that the Respondent's testimony and records placed in evidence do not show that it laid off Bijas because of a slowdown in work a few days after Velders assertedly caused great concern by asking for a vacation when his services were needed, and during a period when, the record shows, employees were being hired. It is apparent from the record as a whole, and I find, that the Respondent laid off Bijas on February 12 not for economic considerations but because of his membership in and activities on behalf of the Union, and in order to discourage activities on behalf of the Union, and thereby violated Section 8(aX3) and (1) of the Act.9 E. The Strike I. The causes of the strike On February 16, after the discharge of Velders and the layoff of Bijas, Sofield went to the Respondent's shop, accompanied at his request by Velders. Sofield identified himself to Kabe, who stated that Tynan was not yet in and Sofield could not wait in the service department. Sofield went out, and returned in about 20 minutes when Tynan was there. According to Sofield, he told Tynan he was there to represent the service department employees, and gave Tynan his business card and the five signed union cards; Tynan screamed that he was to get out of the shop; he requested that they talk as gentlemen as both of them walked into the manager's office; in their very brief discussion he mentioned Velders being let go but Tynan did not comment on that; Tynan sat down at the manager's desk and thumbed through the cards but, when he sat down, Tynan said he had not been given permission to sit down and ordered him out of the office; and he asked as he left if it meant the employees represented were also thrown out, and Tynan replied, "if that is what it means, that is what it means." Sofield testified further that he then went out to the shop where Vaspory and Rohloff were standing, and "I said to them that your Employer refuses to discuss this with me and on the basis of him letting a couple of employees go I think that we should strike"; that when they closed their toolboxes and were walking out with him, Tynan was ordering him to get out and telling the manager to call the police to have him thrown out; and that he told Tynan that was not necessary as he was leaving. As the group was leaving the shop, Macklin was driving up to go to work. One of the men identified Macklin to Sofield, who walked over to talk to Macklin at the driver's window of the car. At that point Tynan, a much larger man than Sofield, pushed his way between Sofield and the car. Sofield testified that Tynan shouted that Macklin did not have to listen to Sofield; that he said that was true, but Macklin had a right to participate in union activities without being coerced and could, if Macklin wished, join the strike line; and that he and the two employees went to the nearby bowling alley parking lot. Macklin followed them in his car, signed a card Vaspory had handed him while walking out, and joined the strikers. Later that day Bouchet and Bijas joined the strikers. Sofield gave the men picket signs and instructions. The men picketed in shifts for 6 days a week for a period, but later Sofield hired some pickets so these strikers could seek other jobs. The strike was still in progress at the time of the hearing. Tynan testified that on February 16 he was called by Kabe or Langhurst out of a meeting of salesmen, held 9 Carbide Tools, supra; W & W Tool & Die Mfg Co., supra. 487 DECISIONS OF NATIONAL LABOR RELATIONS BOARD every morning, and met Sofield, who introduced himself; that "I believe he gave me a business card. And he said he represented my employees for, I forget his language, exactly, for purpose of collective bargaining or whatever, and he wanted to talk to me. I believe I said I don't believe that that's the case. .... He thrust some cards, signature cards as they turned out to be, I know now, into my hand, and he said these are proof he represents these people. I asked him to take the cards back and leave.... He wouldn't leave. He didn't take the cards back either. I said if he didn't leave I was going to call the police and have him removed.... At that point I was still holding the cards. .... When he wouldn't leave I walked toward the office. My intention was to get to a phone and call the police. .... The last I saw of the cards I threw them on the desk. That's the last I saw of the cards. He picked them up, put them in his pocket and finally did leave. . . . I looked at the cards. I did not thumb through them as was testified before. I couldn't even read the top card, frankly. We had some further discussion, and I was still holding the cards, as I recall, in the office. .... Mr. Sofield did not leave in any great hurry and that precipitated further argumenta- tion about his leaving. As I recall, when he was leaving he took several employees with him." Tynan testified further, regarding the Macklin incident, that Vaspory introduced Macklin to Sofield, and "Mr. Sofield verbally solicited him to join the group. .... I said to Mr. Macklin, you do not have to go with them, I would like you to go to work. Mr. Macklin remained in the car for some time, talking to Mr. Sofield. Mr. Sofield is a very small man." Tynan also testified that he first learned the employees were engaging in union activity when Sofield came to see him on February 16. I credit Sofield's testimony, corroborated in large part by that of Tynan as well as of the employees who were present. I find, on all the relevant evidence, that Tynan, by refusing to talk to Sofield about the employee terminations, found above to be violative of Section 8(a)(3) and (1) of the Act, by refusing, in fact, to talk to Sofield about anything, and by shouting at Sofield, in the presence of employees who had designated the Union as their representative, to get out of the shop and threatening to call the police to eject Sofield, interfered with, restrained, and coerced employees in the exercise of their Section 7 rights, and thereby violated Section 8(aXI) of the Act. I find further that the strike was caused by this unlawful conduct of Tynan and was, therefore, an unfair labor practice strike. 2. Respondent's letters to strikers During the strike Tynan sent to both Velders and Bijas written offers, dated February 23, of recall "to your former position from layoff." On March 9 Tynan sent Macklin a letter stating that as of that date Macklin had been permanently replaced as an employee. Tynan also had Langhurst send Bouchet and some others - Langhurst could not recall the names but only that they were "Service personnel" - letters stating that the Respondent would discontinue making payments on the insurance policies of 'o ITT Henze Valve Service, 166 NLRB 592 (1967), enfd. 435 F.2d 1308 (C.A. 5, 1968); Courtesy Volkswagen, Inc., 200 NLRB 84, 95 (1972). the striking employees. One of the employee benefits Tynan had described to the employees at the shop meeting was the insurance that was paid for entirely by the Respondent. Velders and Bijas did not accept the Respondent's offers of reinstatement, but continued to participate in the strike. I find that their status changed from that of discriminatori- ly terminated employees to that of unfair labor practice strikers. I also find that the letter notifying Macklin, an unfair labor practice striker, that he had been permanently replaced was violative of Section 8(aX3) and (1) of the Act.10 There is no evidence that Macklin, but for the letter, would have sought reinstatement during the strike. I find that Macklin's status continued to be that of an unfair labor practice striker, and that Macklin and the other unfair labor practice strikers are entitled to reinstatement upon application, and to the discharge, if necessary, of replacements hired since the strike began." I also find that the strikers' status as employees entitled them to have the insurance policy, paid for by the Respondent on behalf of its employees, continued on their behalf. F. The Refiusal To Bargain 1. The appropriate unit The complaint alleges, the parties agree, and I find that all service and parts department employees at the Respon- dent's Middletown place of business, excluding all office clerical employees, professional employees, guards, sales- men, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining. The General Counsel maintains that there were 11 employees in the unit: Bouchet, Bijas, Velders, Macklin, Rohloff, Vaspory, Seward, Jones, Fink, Parzick, and Fair. The Respondent asserts in its brief that "Respondent's total work complement was ten (10) employees and never, during the periods in question, exceeded this number," as Velders was replaced by Macklin on the same job. The Respondent urges the exclusion of Bouchet on the ground he was not an employee but a student-learner, of Bijas on the ground he was on economic layoff, of Velders on the ground he had been discharged, and of Macklin in the event Velders is ordered reinstated on the ground Macklin was hired as a replacement for Velders. Bouchet was hired by Kabe as a mechanic in October 1975. He was under 18, but was employed under a program whereby he worked and attended school part time. He worked from 1-5 p.m. and all day when school was not in session. Kabe testified Bouchet was hired as an additional mechanic, not a replacement, and that he complimented Bouchet's work and said he would' like to have Bouchet continue with the Respondent when school was finished. Bouchet attended the union organizing meeting, signed a card, and went on strike on February 16. During the strike, he received the letter from Tynan stating that the Respondent's payments on his insurance policy would be discontinued. I find that Bouchet was a regular part-time employee, with a prospect of being offered a full-time job l Mastro Plastics Corp. v. N. LR.B., 350 U.S. 270 (1954). 488 TOWNE CHEVROLET upon completion of his school work, and that he was eligible for inclusion in the unit. 2 I have found above that Velders was discriminatorily discharged and Bijas was discriminatorily laid off by the Respondent. Both are therefore eligible for inclusion in the unit. I shall also, in all the circumstances of this case, include Macklin on the basis of his status as an unfair labor practice striker. If the Respondent thereupon has more employees than are necessary, it may reduce the number on a nondiscriminatory basis. The General Counsel and the Respondent were in agreement that Fair and Parzeck should be included in the unit whereas the Charging Party, at the hearing and in its brief, urges their exclusion as managerial employees. There was some interrogation of witnesses at the hearing regarding the status of these two individuals, but all the parties agreed to a resolution of this unit question on the basis of a description of their duties consisting of relevant excerpts from their pretrial affidavits, which the parties agreed were accurate. The agreed facts show that Fair, the parts manager, is the only individual in the parts department, although Tynan advised him, when he was hired on January 26, that there was a possibility others might be hired if the operations expanded. Fair reports directly to Tynan, does not punch a timeclock, receives a salary of about $200 a week and is not paid for overtime, and attends the monthly management meetings but has no access to information relating to the Respondent's labor relations. Fair orders parts from General Motors, his only supplier, without clearance by any superior, but based on replacement of parts taken out of inventory in the preceding month as determined by means of an inventory control system. He cannot sign checks but can sign purchase orders and does not know of any dollar limit to the size of the purchase orders he can sign. Fair works the same hours and wears the same uniforms as the shop employees and receives the same job benefits except that he has in addition access to a company car for business and personal use. Parzeck, the service writer, was also hired on January 26. He receives a base salary of $120 a week plus a commission of 4 percent on all service orders he writes. His job duties include arranging for subleased work performed by outside contractors and writing repair orders which he assigns to particular mechanics depending on the skill required by the job. Parzeck, who works under the supervision of Kabe, also, in Kabe's absence, hands repair orders to mechanics, regulates the day's work in the service department, and handles departmental customer problems. Parzeck is responsible for security in the department, which involves checking that doors are locked and machines turned off at night. He has no authority to hire, discharge, or change any employee's status, or effectively to recommend such action, and no authority to discipline or reprimand a mechanic, but would report to Kabe if a mechanic refused to do work he assigned. He does not check the accuracy or quality of the work done by the mechanics, but checks service orders to determine that all the work was done. If not, he so 12 W WTool & Die Mfg Co., supra. 13 G. K. Chevrolet, Inc., 176 NLRB 416 (1969); Gnrimaldi Buick-Opel, Inc., 202 NLRB 436, 442 (1973): Bechtel, Incorporated 225 NLRB 197 (1976). advises the mechanic and, if this were to occur repeatedly, would advise Kabe of it. Parzeck has no authority to sign checks but has signed purchase orders up to $250 for parts and labor for radio installation. He does not know of any dollar limits on purchase orders he can sign, but cannot sign without prior authority. I find, based upon the agreed statement of facts and the entire record, that Fair and Parzeck play no role in the formulation or determination of the Respondent's policies, exercise judgment and discretion in the performance of their duties only within prescribed limits and on routine matters, and have authority to pledge the Respondent's credit only to a limited extent and in a circumscribed manner. I find, therefore, that they are rank-and-file, not managerial, employees and shall include them in the unit of service and parts department employees.'3 2. The Union's representative status The Union received signed cards from five unit employ- ees on January 22, and a sixth card on February 16 immediately after the strike began. The Union therefore, as of the time Macklin signed his card on February 16, represented a majority of the 11 employees in the unit found appropriate. 3. The refusal to bargain Sofield on the morning of February 16 told Tynan that the Union claimed to represent the Respondent's employ- ees in an appropriate unit, handed over five signed union cards, and requested recognition. Sofield also attempted to discuss the issues regarding the terminated employees. Tynan, however, refused to discuss anything with Sofield, shouted at Sofield to get out, and threatened to have the police force Sofield to leave. Sofield thereupon suggested to two of the unit employees who were present that they go on strike. As they were walking out, Sofield and Tynan spoke to Macklin, who was arriving at that time, and who, despite Tynan's urging that he go to work, joined the strike and signed a union card. I find, therefore, on the evidence in its entirety, that the Union represented a majority of unit employees when the strike began and while Tynan was in the act of rejecting Sofield's request for recognition; that Tynan was aware of the Union's representative status on the basis of the cards handed to him, of Macklin's joining in the union activity, and of the number of striking employees picketing the Respondent's premises; and that, by Tynan's refusal on February 16 and at all times thereafter to recognize and bargain collectively in good faith with the Union, the Respondent has refused to bargain collectively with the duly designated representative of a majority of its employees in an appropriate unit, in violation of Section 8(aX5) and (1) of the Act.14 14 Sec Scott Gross Company, Inc., 197 NLRB 420 (1972), enfd. 477 F.2d 64 (C.A. 6, 1973). 489 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find further that the Respondent became aware of its employees were engaging in union organizing activities soon after the initiation of the union campaign,' 5 and that it promptly embarked upon a course of unfair labor practices, including interrogation, solicitation of com- plaints, telling employees that an employee was terminated because of his union activities, promises and grants of benefits, unlawful discharge of the leader in the union organizing activity and unlawful layoff of an active proponent of the Union, and refusal to recognize and bargain with the Union as the duly designated representa- tive of the employees in the unit, that were sufficiently pervasive and extensive in character to have precluded the holding of a fair election and to have undermined the Union's designation by a majority of the unit employees. Accordingly, I find that it is appropriate, in all the relevant circumstances, to determine the Union's representative status on the basis of the membership cards which the employees executed and, as these cards establish that the Union was designated by a majority of the unit employees, that a bargaining order on this basis is warranted. 16 I shall, accordingly, recommend that the Respondent be ordered to bargain collectively with the Union, upon request, as the representative of its service and parts department employ- ees as of February 16, 1976. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and from in any other manner infringing upon its employees' Section 7 rights,17 and to take certain affirmative action designed to effectuate the policies of the Act. I shall also recommend that nothing contained in the recommended order shall be construed as requiring the Respondent to revoke any employee benefits previously granted. I have found that the Respondent discriminated against Velders on February 6, Bijas on February 12, and Macklin on March 9, 1976, in regard to their hire or tenure of employment, in order to discourage membership in or activities on behalf of the Union, in violation of Section 8(aX3) and (1) of the Act.'8 I have also found that all three and certain other employees of the Respondent were 1' N.L.R.B. v. Columbia University, 541 F.2d 922 (C.A. 2, 1976), citing Wiese Plow Welding Co., Inc., 123 NLRB 616(1959). 16 N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969); Scott Gross Corn mpany, Inc., 197 NLRB 420 (1972), enfd. 477 F.2d 64 (C.A. 6, 1973); Trading Port, Inc., 219 NLRB 298 (1975); Surface Industries, InIc., supra W & W Tool & Die Mfg. Co., supra. 17 N.L.R.B. v. Fxpress Publishing Company, 312 U.S. 416, 437; N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). engaged in an unfair labor practice strike that began on February 16, 1976. I also found that the Respondent offered reinstatement to Velders and Bijas, that they continued on strike, that their status became that of unfair labor practice strikers, and that Macklin's status continued to be that of an unfair labor practice striker. I shall therefore recommend that the Respondent be ordered to make Velders and Bijas whole for any loss of pay suffered as a result of the discrimination against them to the date they were offered reinstatement; to offer all the striking employees, upon application, reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any replacements hired on or after they went on strike; and to make each of the striking employees whole for any loss of earnings he may suffer by reason of the Respondent's failure, if any, to reinstate him within 5 days after the date on which he applies for reinstatement to the date of the Respondent's offer of reinstatement, by payment to each of them of a sum of money equal to the amount he normally would have earned during said period, less his net earnings, if any, during such period', with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The Respondent shall be required also to restore the insurance payments it discriminatorily discontinued on behalf of striking employees.20 I have also found that the Respondent unlawfully refused to bargain with the Union as the exclusive representative of its employees in an appropriate unit. I shall therefore recommend that it be ordered to bargain collectively with the Union, upon request, concerning rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Towne Chevrolet, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Local Union 355, Autoworkers of New Jersey, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees about union activities, soliciting employee complaints, promising and granting improved conditions of employment, telling employees that an employee had been terminated because of his union activities, in order to discourage union membership or activities, and by other conduct interfering with, restrain- ing, and coercing its employees in the exercise of their is See Herb Arthur, Inc., d/b/a Custom Carpet Installations, 225 NLRB 1036(1976). 19 Bush Hog, Inc., 176 NLRB 815 (1969); Davis & Hemphill, Inc., 177 NLRB 282 (1969). 20 Crown Zellerbach Corp., supra. 490 TOWNE CHEVROLET Section 7 rights, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX 1) of the Act. 4. By terminating Velders, Bijas, and Macklin in order to discourage union membership or activities, the Respon- dent has discriminated against employees in regard to their hire and tenure of employment and has thereby engaged in unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act. 5. All the service and parts department employees at the Respondent's Middletown, New Jersey, place of business, excluding all office clerical employees, profes- sional employees, guards, salesmen, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times since February 16, 1976, Amalgamated Local Union 355, Autoworkers of New Jersey, has represented a majority of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 7. By refusing to bargain collectively with Amalga- mated Local Union 355, Autoworkers of New Jersey, on February 16, 1976, and thereafter, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 21 The Respondent, Towne Chevrolet, Middletown, New Jersey, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interrogating employees about their union activities, soliciting employee complaints, promising and granting improved conditions of employment, telling employees that an employee had been terminated because of his union activities, in order to discourage union membership or activities, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except that nothing contained herein shall be construed as requiring the Respondent to revoke any employee benefits previous- ly granted. (b) Discharging, laying off, or otherwise discriminating against any employees in regard to their hire or tenure of employment, in order to discourage membership in or activities on behalf of Amalgamated Local Union 355, Autoworkers of New Jersey, or any other labor organiza- tion. 21 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (c) Refusing to bargain collectively with Amalgamated Local Union 355, Autoworkers of New Jersey, as the exclusive collective-bargaining representative of its em- ployees in the unit found appropriate herein. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Make Velders and Bijas whole for any loss of pay each of them may have suffered as a result of the Respondent's discrimination against him to the date they were offered reinstatement; offer the employees who have been engaged in an unfair labor practice strike that began on February 16, 1976, upon application, reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any replacements hired since they went on strike; and make each of the striking employees whole for any loss of earnings they may suffer by reason of the Respondent's failure, if any, to reinstate them, upon application, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Restore insurance payments that were discriminatori- ly discontinued on behalf of striking employees. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (d) Upon request, bargain collectively with Amalga- mated Local Union 355, Autoworkers of New Jersey, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and embody in a signed agreement any understanding reached. The bargaining unit is: All the service and parts department employees at the Respondent's Middletown, New Jersey, place of busi- ness, excluding all office clerical employees, profession- al employees, guards, salesmen, and all supervisors as defined in the Act. (e) Post at its place of business in Middletown, New Jersey, copies of the attached notice marked "Appen- dix."22 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 22 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." 491