Dayton Auto Electric, Inc.

DAYTON AUTO ELECTRIC 551 Dayton Auto Electric, Inc. and Local 259, U.A.W. International Union, United Automobile, Air- craft and Agricultural Implement Workers of America. Case 29-CA-9239 13 February 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 28 December 1983 Administrative Law Judge James F. Morton issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings, 2 and conclusions and to adopt the recommended Order as modified. We agree with the judge that a bargaining order is warranted under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). There, the Court identified two categories of cases in which a bargaining order would be appropriate. The first involves "excep- tional cases" marked by unfair labor practices which are so "outrageous" and "pervasive" that traditional remedies cannot erase their coercive ef- fects with the result that a fair election is rendered impossible. The second category involves "less ex- traordinary cases marked by less pervasive prac- tices which nonetheless still have the tendency to i In agreement with the Respondent, we find that the judge erred in granting the General Counsel's motion to amend the complaint to allege that the Respondent unlawfully failed to reinstate the unfair labor prac- tice strikers On 17 March 1982, approximately 5 months after the strike began and 3 months after the complaint issued, the Union by telegram made an unconditional offer on behalf of the striking employees to return to work. The Respondent did not reply to the telegram. At no time prior to the hearing did the General Counsel amend the complaint to allege that the Respondent's failure to reinstate the strikers was unlawful. Indeed, at the outset of the hearing, the General Counsel stated that this was not an issue Only later, midway through the hearing, and then 14 months after the Union's unconditional offer, did the General Counsel move to amend the complaint to include this allegation In these circum- stances, we find that the General Counsel's amendment was barred by the Sec 10(b) 6-month period of limitations See South East Coal Ca, 242 NLRB 547 (1979), Indian Head Hosiery Co, 199 NLRB 488 (1972), Knickerbocker Mfg. Co, 109 NLRB 1195 (1954). We have amended the judge's Conclusions of Law and modified the Order accordingly 2 On 5 October 1981 the Respondent sent each of the strikers a mail- gram stating that unless they returned to work they would be terminated. The following day, the Respondent sent a second mailgram to each em- ployee stating that he would be "replaced not terminated" and that he should disregard the prior mailgram In agreement with the judge, we find that the first mailgram violated Sec 8(a)(1) of the Act, and that the second mailgram failed to satisfy the standards for an effective repudi- ation set forth in Passavant Memorial Area Hospital, 237 NLRB 138 (1978) In so finding, however, we do not adopt the judge's discussion of whether the employees would have understood the difference between being "replaced" and "terminated " undermine majority strength and impede the elec- tion processes." The Supreme Court stated that in the latter situation a bargaining order should issue where the Board finds that "the possibility of eras- ing the effects of past practices and of ensuring a fair election . . . by use of the traditional remedies, though present, is slight and the employee senti- ment once expressed through cards would, on bal- ance, be better protected by a bargaining order." Id. at 613, 614-615. We believe that the Respondent's conduct falls into at least the second category. From the outset of union activity, the Respondent embarked on a calculated campaign to discourage support for the Union. Thus, the day after the Union's first meet- ing with employees, the Respondent unlawfully in- terrogated an employee about which employees wanted a union. Two days later, the day after the Union's demand for recognition, the Respondent unlawfully discharged or laid off 7 of its 12 em- ployees, and interrogated another. And when its remaining employees participated in a strike to pro- test these unfair labor practices, the ' Respondent immediately and unlawfully threatened to dis- charge them as well. We find that the possibility of erasing the effects of such extensive and pervasive unfair labor prac- tices and of ensuring a fair election by the use of traditional remedies is slight. The Respondent's unfair labor practices affected virtually the entire work force. They included the discharge or layoff of 7 of the Respondent's 12 employees, the ultimate penalties for engaging in union activity. While a significant period of time has elapsed since these violations occurred, in view of their seriousness we cannot conclude that time alone will dissipate their impact on employees. Further, while the Respond- ent alleges that there has been substantial employee turnover since the violations occurred, that turnov- er is connected to the unfair labor practices in this case: the discharge or layoff of over half the work force. We therefore conclude that the majority employ- ee sentiment earlier expressed in authorization cards would, on balance, be better protected by a bargaining order.3 Accordingly, we adopt the judge's recommended Order, as modified below, and will require the Respondent to bargain with the Union as the duly designated representative of the employees in the unit found appropriate effec- 3 The judge found, and we agree, that the Union had obtained signed authorization cards from a majority of the Respondent's 12 employees by 1 October 1981 Further, we reject the Respondent's contention that these cards were insufficient to support the Union's demand for recogni- tion as the cards clearly state on their face that, by signing, an employee is designating the Union as the collective-bargaining representative. 278 NLRB No. 80 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive 1 October 1981, the date the Union demanded recognition based on its card majority. AMENDED CONCLUSIONS OF LAW Delete from Conclusion of Law 5 the words "and by having refused since May 17, 1982 to offer reinstatement to employees engaged in an unfair labor practice strike and as to whom unconditional applications to return had been made on that date." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Dayton Auto Electric, Inc., New York, New York, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(d) and reletter the subse- quent paragraphs. 2. Delete from paragraph 2(a) the names "Guil- lermo Cruz," "Manuel Batista," "John Guyear," and "Robert Bligiotis." 3. Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs. "(c) On their application for reinstatement, offer the striking employees immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, with- out prejudice to their seniority or other rights and privileges, dismissing, if necessary, any replace- ments, and make them whole for any loss of pay they may have suffered for the period commencing 5 days after the date of any such application." 4. 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT warn you that you will be termi- nated for supporting a strike called by Local 259, UAW. WE WILL NOT discharge, lay off, or otherwise discriminate against any of you for supporting Local 259, UAW, or any other union. WE WILL NOT fail or refuse to bargain in good faith with Local 259, UAW, as the exclusive repre- sentative of our production and maintenance em- ployees, including drivers. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Eusebio Solano Estevez, Brian Sekeres, Jose Arias, Wilfredo Rodriguez, Raymond Rezir, and Wilson Mozoul immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them and also Frantz Laroque whole for any loss of earnings and other benefits resulting from their discharge or layoff, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to their dis- charge or layoff and that the discharge or layoff will not be used against them in any way. WE WILL offer, on their unconditional applica- tion, to reinstate the striking employees to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent jobs, dismissing, if necessary, any replacements, and make them whole for any loss of pay for the period commencing 5 days after the date of any such application. WE WILL, on request, bargain with Local 259, UAW and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All production and maintenance employees employed at our New York, New York facili- ty, including drivers, but excluding office cler- ical employees, professional employees, guards and supervisors as defined in the Act. DAYTON AUTO ELECTRIC, INC. Lynn Neugebauer, Esq., for the General Counsel. Alvin Adelman, Esq. (Cullen & Dykan), of New York City, New York, for the Respondent. DAYTON AUTO ELECTRIC 553 DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. Local 259, U.A.W., International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica (the Union) filed the unfair labor practice charge in this case on October 14, 1981. All dates hereafter are for 1981 unless indicated otherwise. On December 3, the complaint issued against Dayton Auto Electric, Inc. (Re- spondent). Its answer, filed on December 16, raised the following issues: 1. Whether Respondent's president unlawfully interro- gated employees about September 30 and October 2 as to their union activities. 2. Whether Respondent discriminatorily discharged two employees and laid off five others on October 2. 3. Whether Respondent unlawfully warned employees on October 5 of job terminations to discourage support for the Union. 4. Whether a strike which began on October 5 was caused or prolonged by any unfair labor practices com- mitted by Respondent and whether Respondent unlaw- fully failed or refused since March 17, 1982, to reinstate striking employees as requested. 5. Whether Respondent should be ordered to bargain collectively with the Union to remedy the alleged unfair labor practices. 6. Whether the Union engaged in picket line miscon- duct so as to bar it from representing any of Respond- ent's employees. Respondent is alleged to have violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act). The hearing opened before me on May 2, 1983, and continued for the following 2 days. It was recessed in- definitely at that point. On May 16, 1983, the General Counsel filed a motion to amend the complaint to allege that Respondent had, since about March 17, 1982, failed and refused to honor the Union's unconditional offer on behalf of the striking employees to return to work and that Respondent engaged in additional unfair labor prac- tices within the meaning of Section 8(a)(3) of the Act. Respondent filed a written statement of opposition there- to. On May 27, 1983, I issued an order granting the motion to amend the complaint. Respondent's answer to that amendment placed the allegations therein in issue. The hearing resumed on September 19, 1983, and closed on September 20, 1983. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and by Respond- ent,, I make the following pleadings establish that its operations meet the Board's jurisdictional standard for nonretail concerns. Respondent amended its answer at the hearing to admit that the Union is a labor organization as defined in Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In the fall of 1981, the time of most of the alleged unfair labor practices in this case, Respondent had 12 production and maintenance employees, including a driver. Its president, Joseph Petito, managed its oper- ations on a day-to-day basis; his wife took care of book- keeping and other clerical tasks. An outside accountant was retained to conduct regular audits. The production and maintenance employees were un- represented. In September, one of the shop employees, Eusebio Solano Esteverz spoke with several of his co- workers and also with a field organizer employed by the Union, Modesto Martinez . As a result, a meeting was set for September 29. At that meeting, Estevez and a number of the other employees signed authorization cards for the Union. Those others were Jose Arias, Guil- lermo Cruz, Wilfredo Rodriguez , Manuel Batista, Ray- mond Rezier, and Robert Bligiotis . Another employee, Brian Sekeres, signed an authorization card given him by Estevez on September 30. Employee Anthony Leone signed an authorization card for the Union on September 30 after talking with several coworkers at a bank located a few blocks from Respondent's plant. The General Counsel offered the testimony of Wilson Mozoul, a porter employed by Respondent, and the testi- mony of his brother-in-law, Raymond Rezir, in an effort to establish that Mozoul had signed an authorization card for the Union on September 30. Their accounts seem to me to be confused and at times contradictory. I com- pared the signature of the card offered by the General Counsel as Mozoul's with his signature as written by him at the hearing before me on a piece of paper , received as a separate exhibit, and also with his signature as con- tained on Respondent's payroll control log. I find that the General Counsel has failed to establish that Mozoul signed a union authorization card on September 30 or, for that .matter, at any time. Employee John Guyear testified that he signed a union authorization card given him by Estevez. Guyear testi- fied that he asked a coworker then what the date was and placed that date on the authorization card he signed. His card is dated "9-1-81." This is obviously an error as the Union's organizatonal campaign did not begin until September 29. It is apparent, however, from Guyear's overall testimony that he signed that card sometime be- tween September 29 and October 2. FINDINGS OF FACT I. JURISDICTION Respondent is a corporation of the State of New York. Its principal office is located in New York City where it is engaged in the remanufacture and sale of alternators, generators, starters, and related automobile parts. The B. The Alleged Unlawful Interrogation Manuel Batista testified that, on September 30, Re- spondent's president, Petito, asked him which employees wanted a union and that he responded that he did not know anything. Batista's overall testimony was devel- oped through the use of a Spanish interpreter. When 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked, however, by the General Counsel about the al- leged interrogation on September 30, Batista's reply was given in English, accented and somewhat ungrammatical, but English nonetheless. Petito testified for Respondent that he never questioned any of its employees as to their activities on behalf of the Union. He testified that he had never heard Batista speak English until Batista did so at the hearing before me. I find that difficult to accept as the uncontroverted testimony is that Batista was hired by Petito and as Petito testified that Petito speaks no Span- ish. It is possible that they used an interpreter then and that evidence of such use was overlooked. However, Ba- tista testified that he regularly communicated in some- what ungrammatical English with Petito . At the hearing, he demonstrated how he did this and in that regard he used the phrase "Bendix drive" and other words in Eng- lish which indicated to me that he and Petito did talk to each other in English. As a further matter, Petito testi- fied on another matter that Batista had reported to him that something was wrong with a machine . Petito did not testify that an interpreter was used then . Batista's ac- count struck me as candid and I credit it. John Guyear testified that after five employees had been laid off on October 2, as discussed below, and as Guyear was punching his timecard , Respondent Presi- dent Petito asked him if he had signed a union card. Guyear testified that he responded in the affirmative and that Petito simply looked at him and left. As noted earli- er, Petito denied that he interrogated any of Respond- ent's employees respecting their union activities. I credit Guyear's account. C. The Union 's Demand Respondent's answer admits that, on October 31, it re- ceived the Union's telegram dated September 30 reading as follows: Local 259, UAW having been designated by an overwhelming majority of your shop employees re- quests recognition as collective bargaining repre- sentative of your shop employees. We hereby re- quest a meeting to discuss terms and conditions of employment. If you have any questions re our ma- jority status we will demonstrate the same to any impartial person agreed to by management and the union. Suggest you call us immediately 212-966- 1920 to set up a meeting or call our attorneys Sipser, Weinstock, Harper, Dorn & Leibowitz 212- 867-2100. LOCAL 259, UNITED AUTOMOBILE WORK- ERS, LEW SALVATORE, REPRESENTATIVE D. The Alleged Discriminatory Discharges and Layoffs On Friday, October 2, two employees, Estevez and Sekeres, received notices from Respondent of their ter- minations from employment. Those notices were inserted with their paychecks which they received at the end of that workday. Five other employees received layoff no- tices with their paychecks at that time. The relevant tes- timony bearing on the allegation of discrimination re- specting those discharges and layoffs is set out below: 1. The alleged discriminatory discharge of Estevez Estevez worked for Respondent beginning November 29, 1979, and quit its employ in November 1980. In August 1981, Estevez was notified by the Unemployment Insurance Division of the New York State Department of Labor that Respondent had notified that office that it had work available for him. Estevez was directed to report to Respondent immediately for an interview. Estevez was rehired in August and worked until Octo- ber 2 when, as noted above, he received a termination notice with his paycheck. That notice read in relevant part as follows: [Respondent] must let you go for the following rea- sons: Excessive absenteeism, excessive lateness, refusal to follow instructions: i.e.: voluntarily calling our porter to assist you on many occasions . Destruc- tion of equipment in excess of $400 , pasting cen- terfold pictures on walls in your department after warnings, refusal to adhere to procedures as in- structed by [Respondent's president]. As to the assertions in that notice of absences, Re- spondent's payroll records indicate that Estevez worked 40 hours or more for each of the last 3 weeks immediate- ly before his discharge on October 2. Respecting the reason, excessive latenesses, Respondent placed in evi- dence timecards for Estevez reflecting various latenesses and absences. However, those cards were for a period in 1980. As noted earlier, he remained in Respondent's employ in 1980 until he quit in November of that year. Respondent's president, Petito, testified as set out in the paragraph below respecting the other reasons Re- spondent gave for Estevez' discharge. During the last week of August 1981 after Estevez had been rehired, Estevez kept insisting that he needed more help. Petito informed Estevez that work was slow and that he would have to perform his job without assistance from anyone else. Petito also told Estevez then that he guaranteed that Estevez would not be laid off because Estevez was "one of the main people that [Petito] will keep." Petito talked along those lines to Estevez several times in the ensuing weeks. For the first several weeks of Estevez' period of reemployment, everything was fine and Estevez was an excellent worker. Then Estevez "started in with the centerfolds, pasting them all over the walls, and the swastikas." Petito confronted him a few times respecting those matters but Estevez would just gesture and walk away, saying nothing. For the last 3 weeks before Estevez' discharge, Petito was confronted with serious problems from Estevez . He sabotaged a wheel abrator. The noise resulting from that sabotage was "nerve racking" and would "just blow your ears out." Estevez ignored the noise although he was stand- ing nearby. Petito ran back to where the noise came from and yelled and screamed at Estevez, who simply looked at him and made a gesure with his hands. "Some- DAYTON AUTO ELECTRIC 555 one told [Petito] that [Estevez] did it," i.e., the sabotage. The one who saw Estevez do it was one of the mainte- nance men, Kenny Thompson. (Kenny Thompson did not testify at the hearing before me.) In order for Este- vez to have activated that machine, he had to insert three 30 ampere fuses to restore electrical power and had to ignore a sign on the machine that it was not to be used. Petito concluded that there was no sense in arguing any further with Estevez about his acts of sabotage and, consequently, Petito "just walked away." That matter "blew over." Things were normal until the following week when Estevez walked over to Petito with a pipe, about 4 feet in length, and which had been welded onto a machine. Estevez said that the pipe had fallen off the machine. Petito told'him that was impossible and that it had been "banged off with a hammer, literally ripped off." As a result of this there had been a spill of over 50 gallons of kerosene on the floor which was "jeopardizing the lives of the people that were employed there." Petito "again . . . overlooked- that." Petito was "very upset" and engaged in "yelling and screaming again" at Estevez but "couldn't get anywhere with him [as] he just com- pletely ignored [Petito]." On Friday afternoon, October 2, Petito noticed that Estevez had a coworker, Wilson Mozoul, helping him. Mozoul and Estevez had been told 30 or 40 times in the preceding several weeks that Mozoul was not to help Estevez. Petito also observed another employee, Bligiotis, cleaning plates with a rag and a screwdriver and he asked him why he was doing that. Bligiotis told him that Estevez told him to clean them. Petito walked over to Estevez and asked if that was so. Estevez simply held up his hand but did not oth- erwise respond. The plates that Bligiotis had been work- ing on were dirty. Petito then made the decision to dis- charge Estevez. He walked into the office and directed his wife to type out the letter of termination which was included in an envelope with Estevez' paycheck. Petito testified also that, when Estevez received his termination notice, Estevez was estatic and started danc- ing around the shop. Petito testified that at the time he discharged Estevez he had no knowledge as to whether Estevez supported the Union or not. Estevez testified that the only time he had been disci- plined was in' his first period of employment when he was suspended for a week in February 1980 because he had gotten into an argument with Petito. He testified fur- ther that in September 1981 one of the machines he was working on went awry. Petito became upset with that and told Estevez that he must have done something wrong. Estevez testified as to the other reasons set out in his termination notice; he denied he posted centerfolds or refused to follow any of Petito's instructions. 2. The alleged discriminatory discharge of Sekeres Sekeres began working for Respondent in April. He was employed as a driver, delivering shipments from Re- spondent's facility to its customers in the New York- New Jersey area. As noted 'above, he had signed a card for the Union on September 30, the day before the Union demanded recognition. On Friday, October 2, he received his paycheck envelope. Enclosed with it was the termination notice. The reasons stated therein for his discharge were "excessive tardiness (after numerous warnings); returning from deliveries excessively late; also numerous customer complaints re late deliveries." Se- keres testified that, on three occasions, Petito had spoken to him about reporting late for work but that Petito had never told him that he would be fired if he came in late again. Respecting the second reason set out in the notice, that Sekeres had returned late from making deliveries, Se- keres testified that, whenever Petito spoke to him about that matter,,he explained that he had been making distant deliveries, that it had been impossible to return by 5:30 p.m., and that Petito never had told him that he would be discharged for failing to return by 5:30 p.m. As to the third reason, Sekeres testified that Petito had never indi- cated to him previously that there were customer com- plaints as to his work. Respondent's president, Petito, testified respecting the discharge of Sekeres as detailed below in the next para- graph. Sekeres' performance when he first started was good but shortly afterwards he began coming in late frequent- ly. After being employed by Respondent for a couple of months, a number of problems started to come up. One of the major problems was that Sekeres was "heavy into grass" and smoking marijuana. (Petito then volunteered that Estevez also had the same problem.) Sekeres' prob- lems included his coming back with deliveries that had not been completed and refusing to work in the shop when there were no deliveries to be made. Petito spoke many times with Sekeres about those problems and Se- keres always promised that they would' be straightened out but he would go right back to doing the same thing. Complaints from customers came in September when several customers complained that Sekeres usually had a girl with him on his truck when he was making deliv- eries. Sekeres was very arrogant and very nasty with several of the customers. One customer advised that if Sekeres was sent to his location with a delivery one more time, that customer would no longer buy from Re- spondent. Petito spoke to Sekeres about this and Sekeres assured him that he would straighten the matter out. An- other problem that Respondent had with Sekeres was that he-was once involved in an accident, that Sekeres claimed the accident was a minor one, but that it turned out to be a major one. Sekeres' discharge on October 2 came about when Petito informed Sekeres on Wednes- day of the preceding week that he had no deliveries for Thursday and that Sekeres was expected to work at the shop on Thursday. Sekeres, however, "out and out" re- fused to do any stock work or packing in the shop. Se- keres also had been "ripping [Petito] off for phony gas receipts, phony oil receipts, repair tickets, etc." and those phony, receipts averaged between $40 and $50 a week. Several times Sekeres indicated to Petito that he wanted to be fired. He indicated that by saying so several times to Petito. Petito told him that, nonetheless, he had no in- tention of firing him as Petito needed a driver and Se- keres knew that:. On Friday, October 2, Sekeres returned late again to Respondent's facility after making deliv- 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eries. When Petito asked him then where he had been, Sekeres stated that he was stuck all day on an express- way. Petito then went to the office and instructed his wife to type up ,the letter of termination which Sekeres later received. Sekeres was fired because he could not account "for the rest of the day ." When Sekeres was fired, Petito had no knowledge that Sekeres had support- ed the Union or had signed a union card. 3. The alleged discriminatory layoff of five employees On Friday, October 2, five employees received layoff notices with their paychecks . They were Jose Arias, Wil- fredo Rodriguez, Raymond Rezir, Wilson Mozoul, and Frantz Laroque. The first three of these had signed cards for the Union. The notices they received were under the subject "layoff' and all read as follows: Due to the severe energy crisis , inflationary times and unforeseen sales loss we regret to inform you by receipt of this slip that we are having a tempo- rary plant layoff. Please retain this notice for verifi- cation when filing for NYS employment. Please call factory Wednesday, October 14, 1981 between 12 noon and 1 p.m. for further layoff or return to work information. Respondent offered the following material to rebut the General Counsel 's contention that the layoff was unlaw- fully motivated. It placed in evidence copies of a notice dated February 22, 1980, given to its employees at that time under the heading, "Subject: Layoff (Plant Shut- down)." The body of that notice was identical to the Oc- tober 2 notices. Respondent's president, Petito, testified that , for sever- al years on a regular basis, his accountant and his bank- ers had been urging him to lay off employees . He related that there had been a plant shutdown beginning Febru- ary 22, 1980, resulting in a 6-week layoff of 10 employ- ees, that 2 employees had received layoff notices on March 19, 1980, and that on August 31, 1981 , an employ- ee named Fontanez was laid off. He testified also, that in addition to the five employees named in the complaint in this case as having been unlawfully laid off on October 2, 1981 , a sixth employee named Frantz was laid off on that date. Respondent offered in evidence a summary showing its sales as follows: 1980 1981 July-$40,644 July-$38,693 August-$49,188 August-$31,310 September-$44,866 September-$31,446 Respecting Petito's testimony as to a 6-week layoff of 10 employees in early 1980, Respondent's payroll records disclose that several of the 10 employees had in fact lost but 2 to 3 days', work. Several others of the 10 appear to have lost only 4 to 5 days' work and, as to the remain- der, notations were ,made on the payroll to the effect that they never returned to work . As to the testimony that employee Fontanez was laid off on August 31, 1981, Respondent's payroll records bear the notation that he "quit." Its records also disclose that, while the asserted layoffs for economic reasons earlier in 1981 were taking place, Respondent had hired the very employees alleged in this case to be discriminatess. Respondent's uncontroverted evidence discloses that it has experienced for some time an abnormally high turn- over of employees . In the period 1979-1982, about 500 employees filled positions , ranging in number from about 12 to 25 in any 1 week . In essence, its complete work force could turn over on the average every 2 months, and likely did, as Respondent has had very few long- term employees. Of the five employees laid off on October 2, one (Frantz Laroque) was recalled on October 14 and has worked for Respondent since then. Another (Raymond Rezir) was recalled but elected to join the Union's picket line; the evidence as to a third (Wilson Mozoul) is vague and unclear as to whether he was notified that he could return to work from layoff. E. The Alleged Unfair Labor Practice Strike and Alleged Unlawful Warning On Monday, October 5, Estevez, with several of the employees who had been laid off on October 2 and also with several others who had not been laid off, set up a picket line outside Respondent's premises with the aid of the Union's field organizer Martinez. They had met to discuss the layoffs and Respondent's refusal to recognize the Union. On the first day of picketing, they carried signs bearing the legend, "Lockout"; on the following day and for the next 5 or 6 months until the strike ended they carried placards reading , "Unfair." The employees involved in the strike were: Jose Arias Raymond Rezir Wilfredo Rodriguez Guillermo Cruz Robert Bligiotis Eusebio Solano Estevez Manuel Batista John Guyear Respondent sent mailgrams on October 5 to Manuel Batista, Jose Cruz, Robert Bligiotis, and John Guyear ad- vising them that unless they reported for work by Octo- ber 7, they would be terminated . None of those four had been discharged or laid off on October 2; all took part in the strike on October 5. On October 6 each of those four employees was sent a mailgram advising him that unless he reported to work on October 7 he would be replaced and advising him also that he was to disregard the earlier mailgram. On March 17, 1982, the Union's business agent sent a telegram to Respondent which read as follows, "We hereby offer unconditionally to return to work immedi- ately." Respondent did not thereafter communicate with any of the striking employees. Its payroll records indi- cate that it has hired production and maintenance em- ployees after March 17, 1982. F. Alleged Picket Line Misconduct As an affirmative defense to the allegation that a bar- gaining order remedy is warranted, Respondent has pleaded that the Union's picket line misconduct bars the issuance of any remedial bargaining order. In support of DAYTON AUTO ELECTRIC 557 this contention, Respondent offered the following testi- mony of President Joseph Petito. He witnessed certain of the incidents set out in state- ments prepared by Respondent recounting picket line misconduct. The pertinent statements relate in substance that: 1. On October 14 a salesman was "verbally harassed by strikers and threatened" when he attempted to enter Respondent's premises. 2. On October 22 the president of an advertising agency used by Respondent "was threatened with physi- cal harm when he approached the premises on business." 3. On October 22 "demonstrators clenched fists threat- ening to attack" a sales representative who was making a call at Respondent's premises. The sales representative "then left in fear of his life." 4. On November 11 the same referred to in number 1, above, attempted to enter Respondent's premises for the purpose of selling merchandise. "His life was threatened and rocks were thrown at his car." 5. On November 11 a salesman "was accosted by pick- eters." He returned on November 12 and was picked up by Respondent's president "as [he] was in fear of his life." 6. On November 17 an employee "was accosted, ridi- culed and threatened by one of the picketers [Arias who] stated physical harm would come to [the employee] in the future if [he] continued working for [Respondent]." 7. On November 17 another employee "was accosted, ridiculed and threatened by [Arias who] stated physical harm would come to [him] in the future if [he] continued working for [Respondent]." In addition, Petito testified that he saw the picketers' throwing rocks at customers who came to pick up parts, that they yelled and screamed at drivers attempting to make deliveries, that Estevez screamed at those drivers that the picketers were going to get the drivers when they got out outside and they, were going to be cut up or "reported to Immigration," that Estevez had a large knife strapped onto his leg which he lifted onto a police barricade to intimidate customers, and that Estevez evaded the police officers on duty outside when he yelled and screamed and threatened people in both Span- ish and English. Petito's account respecting the forego- ing matters was given in a disjointed narrative. Several times during the course of that narrative testimony he was cautioned to relate only matters that he had himself witnessed and to refrain from describing events which he had learned about only from others. Despite those cau- tions and requests that he refrain from stating conclu- sions, Petito several times related hearsay testimony which he had to retract and, on more than one occasion, his account was offered in conclusional 'terms. Estevez testified for the General Counsel in rebuttal and related that the picketers conducted themselves in a peaceful manner and that police officers were always on duty during the picketing to maintain order. I am not,persuaded that Petito's testimony is more probably true than Estevez' respecting the alleged picket line misconduct. For some reason, Respondent had pre- pared typewritten reports of alleged picket line miscon- duct. It would seem that, at the least, those reports would have contained an account of each of the inci- dents of misconduct which Petito testified he personally observed. Yet, a number of the incidents alluded to by him in his testimony are not mentioned in those reports. I credit Estevez. G. Analysis 1. Interrogation Based on the credibility resolutions made above, I find that Respondent, by President Petito, interrogated em- ployees Batista and Guyear on September 30 and Octo- ber 2, respectively, as to their union activities and those of other employees. 2. The discharge and layoffs on October 2 Respondent received the Union's demand for recogni- tion on October 1. As found above, Respondent's presi- dent had on September 30 questioned Batista about the employees' interest in organizing. The summary dis- charge and layoff of half its work force in relation to those matters and to other factors including the fact that several of the employees involved had recently been hired make out a prima facie case of unlawful motiva- tion.' Respondent's efforts to come forward with evi- dence in response clearly failed and, instead , underlined the discriminatory nature of its actions. I simply cannot accept Petito's testimony that Estevez embarked on a vicious sabotage campaign , that Estevez repeatedly and with impunity snubbed Petito' s remon- strations thereon, that Estevez had 30 or 40 times in the weeks before his discharge openly disobeyed Petito's order not to use Mozoul as a helper, that Petito readily condoned those patent acts of insubordination, or that Estevez danced a jig when he received his discharge notice. Petito impressed me as one who had little toler- ance of rogues or fools. Petito's efforts to buttress Re- spondent's case against Estevez by testifying that Este- vez used "grass," that he painted "swastikas" in his work area, and that he engaged in other asserted acts of mis- conduct suggest that Respondent, was looking for any grounds to conceal its unlawful motive. The.pretexutal, shifting grounds offered by Respondent are but further evidence of its discriminatory conduct.2 For essentially the same reasons, I find that Respond- ent's discharge of Sekeres was unlawfully motivated. His sudden discharge after he signed a union card and in overall context made out a prima facie case of discrimi- nation asearlier noted. Respondent somehow thought to neutralize the evidence as to Sekeres by Petito's testimo- ny that he had tolerated Sekeres' having defrauded Re- spondent of expenses of $50 a week for many weeks, by offering testimony that Sekeres smoked "grass," and by asserting that he had allowed an unauthorized passenger to accompany him on his deliveries-none of which mat- ters were specified as grounds for his discharge in the notice given him on October 2. Respondent would assign any reason, other than the real one, for Sekeres' dis- 1 Dutch Boy, 262 NLRB 4 (1982). 2 Akers Plastics Co., 262 NLRB 1128, 1134 (1982). 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge. I find that he was fired to discourage Respond- ent's employees from supporting the Union. 3., The October 2 layoff The General Counsel established a prima facie case re- specting the layoff of five employees on October 2. The fact that the General Counsel did not affirmatively show that all five signed cards for the Union does not detract from the evidence in support of that finding.3 In making that determination, I note that most of those employees had been recently hired; I note also the other factors al- luded to above, including the unlawful acts found above. Respondent's efforts to offset that evidence were unper- suasive. In essence, it asserted that it had a problem going back for years and that it had resisted repeated en- treaties from its bankers and its accountant to reduce its work force without delay. Its own evidence indicates that, instead, it continued to hire employees and did little to reduce its work force until the Union entered the pic- ture. In view of the high employee turnover, Respondent could have, at almost any time, used attrition alone to cut its work force to the bone but instead it waited for the Union's demand before acting. I find that Respond- ent laid off the five employees named in the complaint in order to dissuade its employees from supporting the Union. One of the employees was called back to work several weeks later. He elected to continue picketing. His back- pay, as provided for below, would be cut off when re- called and would resume when Respondent rejected the unconditional application made by the Union in 1982 for his reinstatement. 4. The nature of the strike Respondent asserts that the General Counsel has failed to establish a causal nexus between the unfair labor prac- tices discussed above and the strike which began on Oc- tober 5. The evidence, while skimpy, is uncontroverted that the strike began after the employees discussed among themselves the layoffs and Respondent's refusal to recognize the Union. I have already found that the layoffs were discriminatorily motivated. In a separate section below, I have concluded that Respondent has un- lawfully failed and refused to honor the Union's demand of October 1 for recognition. In these circumstances, I find that Respondent's unfair labor practices caused and prolonged the strike. 5. The October 5 and 6 mailgrams The mailgrams Respondent sent to four of the picket- ing employees on October 5 warned them that they would face termination of their employment if they did not report for work. There is little doubt that the warn- ing in, the October 5 mailgram interfered, with the right of the employees to so strike. The question to be consid- ered is whether the October 6 mailgrams "neutralized" that warning. In my view, the practical effect of sending the second set of mailgrams to the homes of the employ- ees involved, where English is the predominantly second 3 O'Dovero Construction, 264 NLRB 751 (1982). language and as none of the employees have the exper- tise to distinguish between the legal significance of the English words "terminated your position" and "replaced not terminated," is to have at least confused the matter and more likely to have compounded the wrong. Re- spondent would have me find that the second set of mail- grams clarified the first. That may be so from its stand- point but I am not sure, whether in the above circum- stances, it is fair to charge the employees involved with the responsibility of deciphering exactly the intent of Re- spondent, even assuming they secured a fair translation of the mailgrams into Spanish. The relevant Board's cri- teria, which are simple and clear, were not followed by Respondent as Respondent failed to effectively repudiate the earlier set of telegrams or give the employees in- volved assurances respecting their rights as set out in Section 7 of the Act.4 I therefore find that Respondent, on October 5, unlawfully warned striking employees that if they did not return to work, their jobs would be termi- nated, and that that conduct was not .effectively neutral- ized by the second set of mailgrams. 6. The offer to return to work As noted above, the strike which began on October 5 was caused and prolonged by Respondent 's unfair labor practices. In view of that fmding, the striking employees are entitled to reinstatement on their unconditional appli- cation therefor. It is uncontroverted that, on March 17, 1982, the Union unconditionally sought reinstatement on their behalf and that Respondent has failed to reinstate them. Respondent argues that it did not need to honor the Union's request because it would have granted exclu- sive recognition to the Union as the unit employees' col- lective-bargaining representative. That argument is a clear non sequitur. In any event, as found below, Re- spondent was obligated to bargain with the Union. I find that Respondent unlawfully failed to reinstate the strikers on their unconditional application therefor.5 7. Bargaining order By October 1, 9 of the 12 unit employees had signed union cards. The Union's bargaining demand on that date is unequivocal. The Supreme Court has held that the Board has ap- propriate authority to issue a bargaining order where there is a showing of a union's majority in cases where an employer has engaged in practices less than outra- geous or pervasive, where the possibility of erasing the effects thereof and of insuring a fair election by the use of traditional remedies, though present, is slight, and where employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order.6 The Court observed that, in those circumstances, such an order should issue. The Board itself has noted that the discharge of employees because of union activity is one of the most flagrant means by which an employer can hope to dissuade employees from selecting a bargain- 4 Passavant Memorial Hospital, 237 NLRB 138 (1978). 5 Proler International Corp., 242 NLRB 676 (1979) 6 NLRB v Gissel Packing Co., 395 U.S. 575 (1969). DAYTON AUTO ELECTRIC 559 ing representative because no event can have more crip- pling consequences to the exercise of Section 7 rights than the loss of work.7 The unlawful discharge of two employees, the unlawful layoff of five others, and the un- lawful interrogation of two others-all within a day of the Union's demand=affected two-thirds of the work force. These acts were hardly done when four employees were threatened with loss of their jobs if they in effect continued to honor the picket line. The case law is clear that, in such circumstances, the possibility of conducting a fair election by the use of traditional remedies is meager and that on balance a remedial bargaining order should issue.8 Respondent contends that the Union forfeited any right it has to a bargaining order by reason of its alleged picket line misconduct . Based on the credibility resolu- tions made above, I find that there is no factual basis for that contention and thus I reject it. 8. Other remedial provisions Respondent shall offer immediate and full reinstate- ment to Eusebio Solano Estevez, Brian Sekeres, Jose Arias, Wilfredo Rodriguez, Raymond Rezir, Guillermo Cruz, Manuel Batista, Robert Bligiotis, John Guyear, and Wilson Mozoul or, if their positions no longer exist, to substantially equivalent positions without loss of seniority or other benefits and shall make each of them and Frantz Laroque whole for any loss of pay resulting from the discrimination against each of them . Any backpay due shall be computed in accordance with the formula set forth in .R W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).9 Respondent shall also remove from its personnel files and other records all references to the discharges and layoffs found to be discriminatory above and notify each of the employees involved that this has been done and that evidence of such unlawful acts will not be used for future personnnel actions against them. In addition to ordering a posting of an appropriate notice to employees, a broad cease-and-desist order is also to issue in view of the serious nature of the viola- tions in this case.1 o CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization as defined in Sec- tion 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent including drivers but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Respondent has violated Section 8(a)(1) of the Act by coercively interrogating employees on September 30 and October 2 as to their union activities, by warning employees on October 5 that their positions of employ- ment would be terminated it they in effect continued to honor the Union's picket line, and by its conduct set out below in subparagraphs 5 and 6. 5. Respondent has violated Section 8(a)(3) of the Act by discharging Estevez and Sekeres on October 2, by laying off five employees that same day in order to dis- courage support for the Union, and by refusing since May 17, 1982, to offer reinstatement to employees en- gaged in an unfair labor practice strike and to whom un- conditional applications to return had been made on that date. 6. Respondent has, since October 1, 1981 , violated Section 8(a)(5) of the Act by failing and refusing to honor the Union's demand for bargaining served on it on that day despite the fact that it was obligated to recog- nize and bargain with the Union as the exclusive repre- sentative of its production and maintenance employees for purposes of collective bargaining. 7. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Dayton Auto Electric, Inc., New York, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Coercively interrogating its employees regarding their union sympathies. (b) Warning employees that their jobs would be termi- nated because they supported a strike protected by Sec- tion 7 of the Act. (c) Discharging or laying off any employees to dis- courage membership in Local 259 , UAW International Union, United Automobile, Aircraft and Agricultural Implement Workers of America. (d) Failing or refusing to reinstate unfair labor practice striker who unconditionally request reinstatement. (e) Failing and refusing to bargain collectively with Local 295, UAW as the exclusive representative of all of its production and maintenance employees. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Eusebio Solano Estevez, Brian Sekeres, Jose Arias, Wilfredo Rodriguez, Raymond Rezir, Guillermo Cruz, Manuel Batista, John Guyear, Wilson Mozoul, and 4 Apple Tree Chevrolet, 237 NLRB 867 (198). 8 Sertafilm, Inc., 267 NLRB 682 (1983); Photo Drive Up, 267 NLRB 329 (1983); Pantex Towing Corp , 258 NLRB 837 (1981). 9 See, generally , Isis Plumbing Co., 138 NLRB 716 (1962) 19 Hickmott Foods, 242 NLRB 1357 (1959) I I If no exceptions are filed as provided by Sec . 102 46 of the Board's Rules and Regulations, the findings,, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rober Bligiotis immediate and full reinstatement to their former jobs or, if those jobs longer exist, to substantially equivalent positions without prejudice to their seniority or other rights or privileges previously enjoyed, and make them and Frantz Larogue whole for any loss of pay by reason of the discrimination practiced against them, plus interest. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (c) Preserve and,, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) On request, bargain collectively with Local 259, UAW respecting the unit of employees described above with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a written signed agreement. (e) Post at its office and place of business located in New York City, New York, copies of the attached notice marked "Appendix." 12 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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."