American Fleet Maintenance Co., Inc.

764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD American Fleet Maintenance Company, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO, CLC. Cases 7- CA-27039 and 7-CA-27144 June 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 12, 1988, Administrative Law Judge Marvin Roth issued the attached decision. The In- terim Trustee in Bankruptcy filed exceptions limit- ed to the issue of whether the Board could require a liquidating trustee to take the affirmative actions necessary to comply with the recommended Order against the Respondent in this case. 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, and conclusions and to adopt the recommended Order. The Interim Trustee does not except to the judge's findings that the Respondent committed violations of the Act. Rather, in her exceptions the Trustee merely asserts that an involuntary Chapter 7 bankruptcy petition was filed against the Re- spondent on February 26, 1988, in the United States Bankruptcy Court for the Eastern District of Michigan, Southern Division, in Detroit, Michigan, which automatically stayed all legal proceedings against the Respondent under the provisions of 11 U.S.C. § 362(a). Board proceedings, however, fall within the provisions of 11 U.S.C. § 362(b)(4) and (5), which specifically except proceedings by a governmental entity to enforce its police or regula- tory powers from the automatic stay provisions in 11 U.S.C. § 362(a). Phoenix Co., 274 NLRB 995 (1985). Furthermore, the institution of bankruptcy proceedings does not deprive the Board of jurisdic- tion or authority to entertain and process an unfair labor practice case to its final disposition. Antoine's of Beverly Hills, 280 NLRB No. 142, slip op. 2 (July 31, 1986), not reported in Board volumes. The Interim Trustee also asserts that the Re- spondent no longer has any employees, the Re- spondent's business operations have ended, and the Trustee only has the authority to liquidate the Re- spondent's business but has no authority to operate the former business. The Trustee contends that she has no authority to undertake the affirmative ac- tions required to comply with the recommended Order in this case and that it is therefore inappro- priate for the Board to impose such affirmative provisions on a liquidating trustee. We disagree. Consideration of the unsupported assertions in the Trustee's exceptions is best left to the compliance stage of this proceeding, when the Respondent can introduce evidence about the closing of its business. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, American Fleet Maintenance Company, Inc., Detroit, Michi- gan, its officers, agents, successors, and assigns, shall take the action set forth in the Order. John Ciaramitaro, Esq., for the General Counsel. Stanley C. Moore III, Esq., of Detroit, Michigan, for the Respondent. Joseph Postas, of Detroit, Michigan, for the Charging Party. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge. These consolidated cases were heard at Detroit, Michigan, on October 5, 6, and 7, 1987.1 The charge in Case 7-CA- 27039 was filed on June 10 by International Association of Machinists and Aerospace Workers, AFL-CIO (the Union). The Charge and amended charge in Case 7-CA- 27144 were filed by the Union respectively on July 16 and August 19. The consolidated complaints, which issued in Case 7-CA-27039 on July 24 and in Case 7- CA-27144 on August 26, allege that American Fleet Maintenance Company, Inc. (Respondent or the Compa- ny) violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act. The gravamen of the complaint is that the Company allegedly unlawfully withdrew recog- nition from the Union as representative of a unit of its employees, unilaterally discontinued paying health insur- ance provisions and unilaterally granted the employees a wage increase, engaged in unlawful acts of retaliation, in- terrogation, and promises of benefits, and discriminatori- ly disciplined and terminated employees Donald Cooper and Pete Sype because of their union activities. The Company's answers deny the commission of the alleged unfair practices. All parties were afforded full opppor- tunity to participate, to present relevant evidence, to argue orally, and to file briefs. The General Counsel and the Company each filed a brief. On the entire record in this case2 and from my obser- vation of the demeanor of the witnesses, and having con- sidered the briefs and arguments of the parties, I make the following 1 All dates are in 1987 unless otherwise indicated 2 The official transcript of proceedings is noted and corrected. 289 NLRB No. 97 AMERICAN FLEET MAINTENANCE CO. 765 FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, a Michigan corporation with its princi- pal office and place of business in Detriot, Michigan, is engaged in the rebuilding of diesel transmissions and en- gines, principally for the city of Detroit's public trans- portation system. In the operation of its business the Company annually purchases and receives at its Detroit place of business transmission and engine parts and other goods and materials valued in excess of $50,000 directly from points outside of Michigan. I find, as the Company admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Findings: the Company's Operations, the Union Organizational Campaign , the Negotiations Between the Parties, and the Question of Whether the Company Validly Recognized the Union The Company's facility is located on Meyers, in De- troit. The Company previously operated a facility on East Warren in Detroit. The Company commenced oper- ations at the Meyers facility in December 1985, and con- tinued to operate at East Warren until July 1985. In March 1987, the Company's supervisory hierarchy con- sisted of. President Richard Topolewski; his stepfather Eugene Kopcik, who was board chairman; Topolewski's cousin, William Dinardi, who was vice president; and Foreman Gil Davis Sr. All four performed hands-on work in the shop in addition to their supervisory duties. William Dinardi Sr., Topolewski's uncle, was sales man- ager. As of March 19 the Company had 12 shop employ- ees. Topolewski testified that all 12 could be described as mechanics, although not all performed mechanical work. Most had a principal job function, although they did not work exclusively at the function. Stantley Marchelwicz worked at teardown and inspection, and James Celani cleaned the engines after they arrived at the facility. Ronald Carter worked at assembly, including the "Su- percharger." Donald Cooper and Peter Sype, the alleged discriminatees, were engine builders. Walter Klatzke worked at transmission building, including teardown and inspection of transmissions. Robert Swigert operated the engine dynomometer (testing machine). (The. transmis- sion dynomometer might be operated by any one of sev- eral persons.) Kendall Magee removed and reinstated en- gines, and Jerome Kennedy helped install engines, among other tasks. Gil Davis Jr. functioned as a general helper, and Mark Palkowski was parts clerk. Charles Brown did janitorial work. President Topolewski and Board Chairman Kopcik worked on parts in the machine shop. The supervisors, including Topolewski, worked on assigned tasks as needed. The Company also had sales and clerical personnel who worked in the office, includ- ing Topolewski's mother and wife. On March 12, in response to call from one of the em- ployees, Union Business Agent Joseph Potas met with Sype, Cooper, Davis Sr., and Davis Jr. Davis Sr. told Potas that he was a leadman and had no authority to hire and fire. Potas testified that on the basis of what Davis Sr. told him, he concluded that Davis Sr. was a supervi- sor. Sype testified that this was also his understanding. However, at the present hearing the parties stipulated that Davis Sr. was a supervisor who had authority to hire and fire. Potas distributed union authorization cards and all four present signed cards. Cooper ad Sype took extra cards and the next day, solicited seven additional employees (Klatzke, Brown, Palkowski, Celani, Swigert, Magee, and Carter) to sign authorization cards. Cooper, who neglected to date his initial card, signed a second card on March 13. Cooper and Sype turned in all cards to the Union. Davis Sr. did not solicit any cards. As of March 13, 10 of the 12 shop employees (all but Marchel- wicz and Kennedy) had signed union authorization cards. By letter dated March 19 to the Company, the Union asserted that a majority of the Company's maintenance employees designated and bargaining as set forth in an attached "Recognition Agreement." The agreement pro- vided that the Company agreed to recognize the Union as a representative of "all its employees employed as: leadmen, diesel mechanics, automotive machinists, jour- neymen mechanics, general maintenance, apprentice me- chanics, stockroom clerks, parts pickup men, helpers and porters, but excluding office-clerical employees, truck drivers, dock and warehousemen, supervisory employees, salesmen and guards are defined in the Act." The pro- posed agreement provided that the parties would negoti- ate a collective-bargaining contract, whose terms would be retroactive, and also provide for a card check in the event the Company has a good-faith doubt concerning the Union's majority status. The agreement also provided that any "arbitrary action" by the Company against union adherents would be considered by the Union as a basis for filing an unfair labor practice charge. After receiving the Union's letter, President Topo- lewski telephoned Business Agent Potas and requested a meeting with him. Potas said that they could go to an election and sign the recognition agreement, and (in the latter event) the parties could first have a card check by an outside person. Topolewski replied that he did not doubt the Union had a majority and an election would be a waste of time. The parties met late in the week of March 23 at the Company office. Potas was accompa- nied by Business Agent John McDonald and Topolewski by Kopcik and Denardi Jr. Topolewski complained that the Company was a small firm, had financial problems, and questioned why the Union wanted to organize it. He showed Potas the Company's financial statements, and said that he changed his mind and wanted to go to an election. McDonald said that the parties could go to an election, sign the recognition agreement, or the Union could strike. Topolewski testified that he was ready to sign the agreement but that Kopcik balked. Potas sug- gested that Topolewski think it over. On March 30 Denard Jr. telephoned Potas and said the Company was 766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ready to sign. Potas immediately went to the Company's facility. Topolewski again stated that he changed his mind and wanted to go to an election. Potas returned to his office. About 1 p.m. Denardi again called and again said that they changed their minds, and Potas should return to the facility. Pitas immediately did so. They dis- cussed the recognition agreement. Topolewski objected to the retroactivity clause. Potas agreed to strike it, which he did. They also discussed the bargaining unit. Topolewski said that some of the job classifications in the recognition clause were not accurate, e.g., the Com- pany did not have any "apprentice mechanics" as such. Potas replied, and Topolewski agreed, that this was no problem because both parties understood that the agree- ment covered all shop employees, and excluded supervi- sors, sales, and office personnel. Topolewski testified that he did not consider the unit description to be a problem, and therefore did not request any change in the lan- guage.3 Topolewski also told Potas that Davis Sr. was a foreman. Potas replied that they could resolve his status in the contract negotiations. Topolewski questioned Potas about the clause on "arbitrary action," saying that he wished to avoid such accusations. Potas advised To- polewski to document any disciplinary action. At the conclusion of their meeting the parties signed the recog- nition agreement, as modified to delete retroactivity.' In the meantime, on March 26, Topolewski discussed union- ization with Cooper and Sype. Their conversation will be discussed in the next subsection of this decision. At a union meeting on April 7, the employees elected Sype as steward and member of the negotiating commit- tee, and Cooper as shop committeeman and alternate member of the negotiating committee. Thereafter, Sype attended negotiating sessions. Davis Sr. was present at the meeting, and Topolewski immediately learned of the election, although he was not then officially notified, and was not certain of the respective positions held by Cooper and Sype. the next day he asked Sype who in- formed him of their respective positions. The Company and the Union next met on April 13. Potas brought a copy of a contract between the Union and an employer association, which he proposed as a basis for contract negotiations. Potas said he wanted the contract language, but they could discuss economics. To- polewski and Denardi Jr. objected to the wage and fringe benefit amounts, and said they did not understand the contract language, but agreed to read the contract. Potas explained the functions of the steward and commit- teeman, and they discussed minor matters (Potas ques- tioned why the Company did not provide a pay phone and soap in the washroom). The parties agreed to meet next on April 15. Shortly before that meeting Denardi Jr. asked Potas to bring a copy of a contract between the Union and another employer (Cummins Michigan, Inc.), s The alleged appropriate bargaining unit as stated in the complaint differs slightly in form, but without any substantive difference, from unit defined in the recognition agreement At the hearing the parties stipulat- ed that the unit described in the complaint covered all shop employees as of March 19 4 Topolewski testified that he thought they met and signed the agree- ment on March 31 However , Potas testified that they did so on March 30 The agreement is dated March 30. 1 credit Potas which Potas did. At the April 15 meeting the parties did not discuss contract proposals. However, they did dis- cuss shop problems, and particularly as this concerned individual grievances. They discussed the fact that Ron Carter was paid less than the rate of his job. (The Carter problem will be considered later in connection with the complaint allegations of discriminatory conduct.) They discussed grievances pertaining to employees Brown and Pulkowski. They also discussed the matter of discipline. (The Company gave Cooper a written disciplinary warn- ing on April 7 for absenteeism and another written warn- ing on April 15.) Potas recommended a progressive disci- plinary system. The Company did not say whether it had written shop rules, and that matter was not discussed. The parties next met on May 1. Topolewski was obvi- ously preoccupied with another unrelated matter, and Potas suggested that they schedule another meeting. Again they did not discuss specific contract proposals. The Company never presented any specific proposals. There was some general discussion about seniority and job classifications. Potas testified that Topolewski and Denardi told him that Blue Cross-Blue Shield coverage was "gone by May 1 or it was about to be gone," the Company was negotiating with Blue Cross-Blue Shield for employee self-insurance, and was also looking for a cheaper policy, and the Company gave the employees a 50-cent-per-hour increase to help defray the cost of health insurance. Potas replied that the employees needed health insurance. Potas testified that this was the first notice the Company gave him concerning these changes, although he had recently heard rumors from the employees about these changes. The parties next met, as scheduled, on May 14. In the meantime, the Company discharged Cooper on May 4, laid off Sype on May 5, and gave him two disciplinary notices and discharged him on May 14, and gave discipli- nary notices to Ronald Carter on April 15 and 30 and to Stanley Marchelwicz on April 23. When the parties met, Pitas attempted to commence contract negotiations. In- stead, the Company presented the Union with a copy of a petition dated May 8 from employee Robert Swigert to Potas, signed by seven employees (Carter, Klatzke, Davis Jr., Marchelwicz, Magee, Swigert, and Celani), stating that they no longer wished to be represented by the Union. Potas had not previously received the petition although he found the petition in his mail when he re- turned to the union hall that day. Topolewski said that in view of the petition he did not think that the Company was obligated to bargain. Potas disagreed and left. By letter dated May 18 the Union demanded a resumption of bargaining. Potas also telephoned the Company, but To- polewski said there was no change in the Company's po- sition. On July 23, after the Union filed its charge in Case 7-CA-27039, and the Regional Director deter- mined to issue a complaint, Denardi told Potas that be- cause of the Board's preliminary determination the Com- pany would resume negotiations. The parties met shortly thereafter. They discussed Cooper and Sype. Topolewski said he would close before taking them back. Potas sought to discuss a contract. They agreed on some lan- AMERICAN FLEET MAINTENANCE CO. • 767 guage in principle, but the Company did not submit any proposals. The parties did not meet again in negotiations. In its answers to the complaints, the Company denied that it entered into a legally valid recognition agreement with the Union, that the Union was the representative of its shop employees, and that the union stated in the com- plaint was an appropriate unit for collective bargaining. However, in its brief the Company does not dispute that it validly recognized the Union on March 30. Rather, the Company contends in sum that it was entitled to with- draw recognition from the Union, on the basis of the May 8 employee petition, because the Company alleged- ly had a good-faith doubt of the Union's majority status, based on objective factors. I find that a majority of the Company's shop employees validly designated the Union as their collective-bargaining representative, that on March 30 the Company entered into a lawful and bind- ing agreement whereby it recognized the Union as repre- sentative of its employees in a unit appropriate for col- lective bargaining, and that by reason of such recogni- tion, the Union was from March 30 until at least May 8 the exclusive collective-bargaining representative of the employees in the appropriate unit. It is undisputed that 10 of the 12 shop employees signed union authorization cards. The Company did not until May 14 question the Union's majority status. That status was not tainted by the presence of Supervisor Davis Sr. at early union meetings. Davis Sr. did not solicit any employee to sign cards; indeed, he was not even present when seven of the employees signed authorization cards. Davis Sr.'s presence at union meetings could not reasonably be viewed by the employees as coercive, or indicating man- agement endorsement of the Union. The employees as- sumed that Davis Sr. was a nonsupervisory leadman, and he so represented himself at the first union meeting. As will be discussed, the employees knew all along that the Company was opposed to unionization. Therefore, the authorization cards were valid. Steward Sandwich Service, 260 NLRB 805, 808 (1982). The Company and the Union understood and agreed that the Company recognized the Union for a unit of all shop employees, i.e., excluding su- pervisors, sales, and office personnel. The Company questioned the Union's choice of language in describing the unit, but accepted and agreed to that language. All the shop employees performed functions described in the recognition agreement. Therefore, it was immaterial that the Company did not then employ "apprentice mechan- ics." The General Counsel contends (Br. 8) that apart from (or addition to) the Company's obligation under the rec- ognition agreement, the Union is entitled to a Gissel re- medial bargaining order (NLRB v. Gissel Packing Co., 395 U.S. 575, 613-615 (1969)). The General Counsel argues that such offer would be effective from March 19, "at the outset of the [Company's] unlawful course of conduct." However, the first alleged unfair labor prac- tice occurred on March 25. I shall defer this matter until after I have discussed the alleged unfair labor practices on which the General Counsel predicated her request. B. Alleged Unlawful Interrogation and Promises of Benefit Donald Cooper testified without contradiction that when he was initially hired by the Company (September 1985), Topolewski told him that he did not want a union and did not want to hire anybody who wanted a union. I credit Cooper, and I find that Topolewski's statement may properly be considered as background evidence in this case. On March 25 or 26, after receiving the Union's request for recognition, Topolewski summoned employees Cooper and Sype to his office. Denardi Sr., Denardi Jr., and Kopcik were present. Until this time neither employ- ee had informed management of their support for the Union. Cooper and Sype testified in sum as follows con- cerning the meeting : Topolewski asked why they were bringing in the Union, adding "am I that hard to work for?" The employees answered that they wanted job se- curity, vacation time, air filters, a pay phone, and other improvements in working conditions. Denardi Jr. pro- ceeded to do most of the talking. He said that the Com- pany was having financial difficulties, and this was a bad time to have a union. Topolewski gave the employees a copy of the company financial statement. Denardi Jr. told them that the Company had considered an incentive program for engine builders, under which they would re- ceive a bonus if they built more than two engines per week (Cooper and Sype were the only employees who worked regularly at engine building). The Company had not previously mentioned such a program. Denardi Jr. added that with a union coming in they might as well close the doors, there was no way they could financially make it. Cooper and Sype told other employees about this meeting. Topolewski, the Company's only witness, testified that after receiving the Union's request for rec- ognition, he summoned Cooper and Sype to his office "to try to see what happened." Topolewski admitted that Davis Sr. told him that Cooper and Sype brought in the Union. In light of Topolewski's testimony, it is evident that he summoned the employees for the initial purpose of questioning them about the union organizational cam- paign. Topolewski testified in sum that he told the em- ployees that he was not so bad an employer, that the Company was having financial difficulties, which he pro- ceeded to explain, and he gave them a copy of the Com- pany's latest financial statement. He testified that he told them he could bargain with the Union, but this would do no good if the Company could not pay for any agreed- on benefits. Topolewski testified that he did not other- wise discuss the Union. Topolewski did not testify con- cerning what, if anything, was said about an incentive program. He also did not testify concerning what, if any- thing, was said by Denardi Jr. or any of the other man- agement officials present. As Denardi Jr. did most of the talking, Topolewski's testimony has limited evidentiary value. I credit the testimony of Cooper and Sype as summa- rized above. In the context of the meeting, Denardi's suggestion of a bonus for engine builders constituted an implied promise of benefit to the two leading union ad- herents if they abandoned the Union. I further find that 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Company, by Denardi, threatened the employees with plant closure if they continued to support the Union. Denardi Jr. did not make a prediction based on objective economic considerations related to specific union proposals. Rather he equated unionization with plant closure. As indicated, in the same conversation in which the Company pleaded poverty, Denardi Jr. pro- posed an incentive bonus as an alternative to unioniza- tion. As will be discussed, this was not the only instance in which the Company pleaded financial inability, while at the same time demonstrating its ability to provide em- ployee benefits. In sum, the Company was demonstrating an example of the "fist inside the velvet glove." NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964). Although the complaint does not allege a threat of plant closure, the question of what transpired at the meeting was fully and fairly litigated, and Denardi's threat of plant closure was an intergral part of his remarks. I find that the Com- pany violated Section 8(a)(1) of the Act by offering Cooper and Sype an incentive bonus plan if they aban- doned their support for the Union and by threatening the employees with plant closure if they continued to sup- port the Union.5 I further find that Topolewski violated Section 8(a)(1) by coercively interrogating Cooper and Sype concerning their reasons for wanting a union. To- polewski had no legitimate reason for questioning the employees. He never questioned the Union's majority status. He interrogated the employees in an atmosphere of unnatural formality, specifically, in his office, where the employees were confronted by an array of top man- agement. Topolewski did not give the employees any as- surance against reprisals. On the contrary, he questioned the employees in the context of unlawful threats and promises of benefits, and against a background of em- ployer hostility to unionization. During the same period of time whan Topolewski met with the employees he was equivocating about signing the recognition agree- ment. It is evident Topolewski was stalling to gain time to undermine the Union, and began his campaign by trying to pressure the leading union adherents into aban- doning the Union. As will be discussed, when this tactic failed, the Company proceeded to the next step, namely, to apply pressure against all the employees. C. Discontinuance of Health Insurance Benefits and Wage Increases to Employees The complaint alleges that about April 30, the Compa- ny discontinued paying health insurance premiums for the unit employees, that about May 4 the Company granted the unit employees a wage increase, that the Company took those actions without prior notice to the Union and without affording the Union a meaningful op- portunity to negotiate and bargain about the changes, and that the Company thereby violated Section 8(a)(1) and (5) of the Act. 5 The Company argues (Br. 24-25) that it did not violate the Act be- cause it never implemented the incentive bonus plan The argument is without ment. Sec 8(a)(1) prohibits both promises and grants of benefits to discourage unionization just as it prohibits both threats and retaliatory actions for that purpose The Company's personnel including the unit employ- ees were covered by a Blue Cross-Blue Shield health in- surance plan under which the Company and the employ- ees each contributed a portion of the premiums. On March 25 or 26, shortly after meeting with Cooper and Sype, Topolewski assembled a meeting of all employees. Topoloweski and Denardi Jr. informed the employees that the Company was behind in premium payments, that the Company could not afford to pay the premiums, and therefore that the policy was being canceled. They said that the employees would have to get their insurance through the Union. This was the first notice given to the employees of such cancellation. Nothing was said at this time about a wage increase. Friday, March 27, was a payday. The employee's paychecks were accompanied by a notice from management to "all employees," dated March 27, the text of which stated as follows: Due to our inability to pay the Blue Cross-Blue Shield payment we are forced to let the policy lapse. Blue Cross will contact you individualy [sic] to see if you want to continue it personally. To help defer the added personal expense starting April 1, 1987, all hourly pays will be increased by $.50 per hour. I sincerely regret being forced to do this but it has become economically impossible to continue. The announced wage increase was sufficient to compen- sate single employees for lost employer contribution, but was not sufficient to compensate for lost family cover- age. In fact, that Company never canceled health insurance coverage. Rather the Company permitted the Blue Cross-Blue Shield policy to lapse for nonpayment of pre- miums, effective as of May 1, i.e., more than a month after its announcement. The Company long had a policy of waiting until the last possible moment to forward pre- mium payments. As a result the Company was always delinquent in premiums payments, and on at least two occasions was given notice of "cancellation" by the in- surer. The Company did this, not because of inability to pay, but to maximize use and profit from its own funds and the employees' contributions. Thus, every time the Company was threatened with a notice of cancellation of policy, it would pay in as much as necessary to become current, the policy would remain in effect, and the Com- pany would resume its delinquent ways. The Company received notice of cancellation from the insurers in No- vember 1986 and again by notice dated March 16, effec- tive as of February 1. However, the policy did not lapse on either occasion. It is undisputed that the insurer sub- mitted statements which indicated that the policy was paid up through March, the employees were covered through April, and that the insurers billed the Company for premiums for the month of April. The Company used similiar tactics in connection with the announced pay in- crease. Donald Cooper testified that he did not receive the 50-cent-per-hour increase until the third payday in April (April 17). Topolewski in his testimony admitted that he did not grant all employees a wage increase as of AMERICAN FLEET MAINTENANCE CO. 769 April 1, either then or retroactively. Topolewski testified in sum that with respect to employees who had family coverage, he withheld the amount of the wage increase as a fund for payment of premiums they decided to renew coverage. When some employees did not renew coverage on an-individual basis, the Company gave some of the money to the employees and paid the rest to the insurer. I find that the Company violated Section 8(a)(1) and (5) of the Act by unilaterally discontinuing payment of health insurance premiums for the unit employees, and unilaterally granting the unit employees a wage increase. The Company independently violated Section 8(a)(1) by discontinuing payment of premiums because that action was discriminatorily motivated. The Company used its March 27 announcement as a club over the employees' heads. The Company did not act on its announcement. However, when the employees failed to abandon the Union, the Company retaliated by permitting the policy to lapse. Therefore the Company violated Section 8(a)(1), regardless of its bargaining obligations. More- over, as found, the Company discontinued paying health insurance premiums and effectuated a wage increase after March 30. The Company did so unilaterally, without giving prior notice to the Union and without offering the Union a meaningful opportunity to negotiate and bargain about the changes. Instead, the Company falsely led the Union to believe that these changes were implemented prior to the recognition agreement. The Company did not even offer the Union, after the fact, an opportunity to negotiate about the changes. Instead, before the par- ties had an opportunity to engage in an indepth discus- sion of substantive matters, the Company discontinued bargaining. Therefore the Company violated Section 8(a)(1) and (5) of the Act by unilaterally discontinuing payment of health insurance premiums and by granting the employees a 50-cent-per-hour wage increase. If the Union is entitled to a remedial bargaining order under Gissel, then it would follow that the Company violated Section 8(a)(1) and (5) even if the changes were initiated on March 27 because the Company's bargaining obliga- tion would commence from March 25 or 26, when it began engaging in unfair labor practice conduct. D. Written Reprimands to Cooper, Sype, and Other Employees, Discharge of Cooper, and Layoff and Discharge of Sype The complaint alleges that the Company violated Sec- tion 8(a)(1) and (3) of the Act by engaging in the follow- ing discriminatory actions: issuing written reprimands to Donald Cooper about April 5 and 15; presenting Pete Sype with a written reprimand about May 13; discharg- ing Cooper about May 4; laying off Sype about May 5, and discharging him about May 15; and since about April 1, engaging in a retaliatory campaign against unit employees by issuing an increased number of written reprimands through various supervisors. As the evidence concerning these allegations is interrelated, I shall deal with them together. On April 7 the Company issued the following written warning to Cooper: Subject: Absenteesim As you well know, in the last couple of months you have missed a number of days due to illness. These missed days for the most part have been doc- umented by Doctors excuses. However, upon making an inquiry with your Doctor concerning your last excuse on 4/6/87, we discovered that he simply diagnosed you over the phone. Later that day your wife picked up your written excuse, which stated you were totally inca- pacitated with gastrointestinal flu, all of which he concludes without you being present. It is our contention that this excuse and the past excuses from this Doctor are not valid. American Fleet Maintenance is forwarding our complaint to the Doctor and the Licensing Board of Lansing. Any further disciplinary action may result in your dismissal. On April 15 the Company issued another written warn- ing to Cooper, which read as follows: Subject: Poor Workmanship Upon dyno testing Engine #6VA-JD6774 it was discovered that (2) two of the oil pump bolts were left out. As you know this causes the engine to leak oil, as well as a delay in turn-around time for that unit. Obvious errors of this nature must cease. The Company terminated Cooper on May 4, giving him the following written notice: Subject: Termination Due to excessive and constant absenteeism we are forced to terminate your employment immedi- ately. When employees are not on the job it seriously hampers production. Topolewski testified that he terminated Cooper be- cause he did not show up for work for 3 days. Topo- lewski denigrated the quality of Cooper's work perform- ance, testifying that Cooper was "a good repairman," but could not really be considered an "engine rebuilder" be- cause he could not "rebuild or remanufacture component parts." Just what Topolewski meant is not clear because only Topolewski and Kopcik normally remanufactured component parts as such, i.e., in the machine shop. To- polewski testified that Pete Sype also could not rebuild component parts. However, he admitted that he simply meant that Sype took too much time to rebuild a super- charger (which was normally Ronald Carter's work). However, Topolewski admitted that Cooper was told only that he was discharged for absenteeism, and Topo- lewski did not claim that he discharged Cooper for any other reason. He did not claim to know why Cooper was absent. However, the Company, in its cross-examination of Cooper, suggested that it has something to do with the fact that Cooper performed repair work out of his home. Cooper began working for the Company in September 1985. He quit in March 1986, and was rehired in Novem- 770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ber 1986. He testified without contradiction that prior to April 7 he had never been given a written disciplinary notice of any kind, and that he was never given a disci- plinary suspension . Cooper further testified that on every occasion, except one, when he was absent from work, the absence was caused by illness and that on each such occasion he presented a doctor's certificate. He testified that the one other occasion occurred in November 1986, shortly after he returned to work for the Company. Den- ardi Jr. gave him permission to be absent for 3 days to go deer hunting, as planned by Cooper before he re- turned to work. Denardi was present at this hearing, but was not called to testify. In the absence of Denardi's tes- timony, or that of any other actual or potential company witness, the assertion in the April 7 disciplinary notice that Cooper's absences due to illness, "for the most part have been documented by doctor excuses," is uncorro- borated hearsay. I credit Cooper. I find that Cooper's ab- sences due to illness were always documented by a doc- tor's certificate, and that Topolewski knew this to be the case. With regard to the April 7 warning Cooper testified that on April 6 he was ill with a respiratory infection. Cooper testified in sum that in February he began doing repair work in his garage and yard, and that outside work the night before may have aggravated a cold, but that he did not stay home to work. He did not visit a doctor, but he telephoned a doctor and his wife picked up the doctor's certificate. The next day Cooper brought the certificate to work. Topolewski asked Cooper wheth- er he had gone to the doctor. Cooper falsely answered that he had. Topolewski did not accept the answer. In- stead, he called the doctor and learned that Cooper had not visited him. Topolewski then issued the warning notice, and filed a complaint against the doctor. Topo- lewski admitted in his testimony that this was the only time he questioned a doctor's ceteificate. He testified that he did so because he learned that Cooper was working at home, and that as a result of the April 6 incident he as- sumed that Cooper has lied about being sick on prior oc- casions. Cooper testified without contradiction that he was never before told that he had to personally visit a doctor to have his excuse accepted as valid. Cooper was next absent for 3 days beginning Monday, April 27 (he was not scheduled to work for the balance of that week). Cooper testified that he was sick with a stomach flu. This time Cooper visited a doctor and personally ob- tained a certificate. He reported to work on Monday, May 4, and found that his timecard had been pulled from the rack. He went to Topolewski, who told him that "he just couldn't put up with this anymore." Topolewski did not accept or even look at the doctor's certificate. If Topoloweski issued the April 7 warning and dis- charged Cooper because of absenteeism, his action would be inconsistent with the Company's usual policy and practices in two important aspects. First, the Company had a progressive disciplinary practice for absenteeism which predated the Union's organization campaign. The General Counsel presented in evidence a three-page doc- ument addressed from Topolewski, to "All Employees," captioned "Shop Rules Restated." With respect to "Ab- senteeism," the document stated as follows: ABSENTEEISM A. First offense-Written warning B. Second offense-Day off C. Third offense-3 days off D. Fourth offense-Misconduct, subject to dis- charge. Bonafide sickness with doctors slip is excu- seable. Without doctors slip is unexcused and sub- ject to absenteeism remedies. 2 days off without notification considered volun- tary quit. Any time off during 1st 30 days is subject to im- mediate discharge. 3 lates in 90 days is subject to review and possi- ble discharge. Topolewski testified that the Company has written work rules, including the above rules on absenteeism, until the end of 1985, which were used only at the East Warren facility. He testified that they were not "really" distribut- ed, but posted on a bulletin board. However, he testified that the rules were posted at East Warren and Meyers. He further testified that after his attorney advised him to discontinue using the rules, he told his supervisor not to distribute them "anymore." If the rules had been posted and never distributed, there would have been no need to give such an instruction. The rules as presented in evi- dence by the General Counsel were headed with the Meyers' address. Pete Sype testified that when he began working for the Company in April 1986, then-foreman John Denardi gave him a copy of the rules, and he was never told they were no longer in effect. Employee Walter Klatzke testified that when he was rehired by the Company in May 1986, Denardi Jr. gave him a copy of the rules, he was never told they were no longer in effect and, to his knowledge, the rules were being dis- tributed as late as January 1987. Cooper also testified that he was given a copy of the rules when he was hired. In the absence of any testimony by Denardi Jr., Klazke's testimony stands unrefuted. According to Topolewski, he discontinued using the rules after his attorney advised him they were ineffective. In fact, as Topolewski admit- ted, he had a very good reason for using a progressive disciplinary system for absenteeism. Topolewski testified that he instituted this system because of disputed claims for unemployment compensation "so that I could cover myself if I had a problem down the road." Thus it is not surprising that after Cooper was discharged, and Sype protested that Topolewski had violated his own rules by not following the disciplinary procedure, Topolewski an- swered that he had "already been to court on that once" and "wasn't worried about it." In essence, Topolewski was boasting that he was covered because he had re- duced his action to writing. Second, as the Company's own rules indicate, the Company treated "bona-fide sickness with doctors slip" as an excusable absence not subject to discipline. The rule did not require that the employee personally visit the doctor for the slip to be acceptable. Thus, under the Company's own rules, neither of Cooper's absences in April warranted any disciplinary action. Therefore, the reasons given by Topolewski for both the April 7 warn- AMERICAN FLEET MAINTENANCE CO. ing and Cooper's discharge were demonstrably pretex- tual. This is graphically demonstrated by a written notice that the Company gave to employee Stanley Marchel- wicz on April 23. The text of the notice was as follows: Subject: Absenteeism On March 21st and 22nd you were not at work due to an illness for which you called in. By calling in you had followed proper procedure. But, in the future when you are out sick, upon returning you must furnish the Company with a Doctor's excuse in order for the missed day or days to be considered an excused absence. Topolewski, in his testimony, professed to be unable to explain why the Company took over a month to give a warning to Marchelwicz. It is evident from the warning that the Company did not even enforce its requirement of a doctor's slip, let alone require a visit to the doctor. However, after discharging Cooper, the Company belat- edly issued a warning to Marchelwicz to bolster its pre- text for Cooper's termination. At the hearing evidence was presented concerning the work and attendance record of employees Ronald Carter, in part as a basis from comparison with Cooper. Carter began working for the Company in 1981 , and quit shortly before the present hearing. It is undisputed that Carter had an atrocious attendance record. Carter's per- sonnel file contained a string of written warnings dating back to 1984. Most concerned absenteeism and tardiness, although several were for substandard work. Some warnings for absenteeism indicated that Carter would be discharged for the next offense. As Topolewski put it, Carter was "fired and rehired several times." There were no doctors to call. Carter "had his grandmother and grandfather die seven or eight times each." However, Topolewski testified that he was lenient with Carter be- cause he was a longtime employee and the least dispensi- ble employee, e.g., the only one who could satisfactorily rebuild a supercharger. At one point Topolewski was prepared to really discharge Carter. Instead they struck a deal. Carter agreed to take a pay cut from $9 to $7 per hour. However, he would get $9 per hour for any week in which he had perfect attendance. Between July 21, 1986, and April 15, 1987, Carter did not receive any written warnings. That day, when the Company and the Union met, the Union questioned Carter's rate of pay, and Topolewski explained their arrangement . That same day, and again on April 30, the Company gave Carter written warnings for absenteeism, each of which threat- ened discharge for future offenses. On July 27, shortly after the Regional Director issued the first complaint in this case and the Company and the Union met again, the Company gave Carter another written warning, this time for tardiness, and threatening discharge for the next in- stance of absence of tardiness. In view of the wage ar- rangement between Topolewski and Carter which re- solved the matter of his attendance, the Company had no legitimate reason to issue written warnings to him. Rather, the timing of the actions and the context in which they occurred, including the Company's other un- lawful actions calculated to undermine the Union, indi- 771 cate that the Company was using these warning notices as a means of pressuring Carter and other employees to abandon or withhold support from the Union (Carter signed the May 8 antiunion petition). At this point, I shall return to the circumstances of Cooper's termination. Topolewski testified in sum that on May 4 the Company was behind schedule in production for the city of Detroit, and had been so for several months, that this could cost the company substantial pen- alties, and that by his absence Cooper cut the company production of engines in half. However, the next day (May 5), the Company laid off Pete Sype. Topolewski testified that he laid off Sype because of "lack of money and work." The Company thereby almost simultaneously removed from its shop the only two employees who reg- ularly worked at engine rebuilding. Topolewski's expla- nations for terminating Cooper and laying off Sype are mutually inconsistent. If the Company were so busy and behind schedule as described by Topolweski, than it would make no sense to remove both engine rebuilders from the shop. In an effort to bolster his explanation for laying off Sype, Topolewski testified that he had only 92 series Detroit diesel engines to be worked, and Sype had only worked on 71 series Detroit diesel engines. The dif- ference in numbers designated reflects the number of cubic inches per cylinder. However, Sype testified that on May 5 there were 71 series engine blocks in the shop, which indicated that they were there for engine rebuild- ing. Moreover, although Sype had not worked on 92 en- gines in the shop, he was trained and qualified to per- form such work. Therefore, it would have been a simple matter to give Sype such on-the-job instruction as were necessary to enable him to work on 92 series engines. Topolewski testified that after Cooper and Sype were gone, he assigned Stantley Marchelwicz, among others (including supervisory personnel) to rebuild the engines. Topolewski initially testified that besides Cooper and Sype, only himself, Denardi Jr., Davis Sr., and Carter were qualified to rebuild engines. However, Topolewski subsequently testified that Marchelwicz was an engine rebuilder. In fact, as previously indicated, Marchelwicz worked at teardown and inspection. It is evident that Marchelwicz was less qualified to rebuild engines than either Cooper or Sype, whether 71 or 92 series. I fmd that the Company's professed reason for laying off Sype was pretextual. Topolewski's action becomes understand- able when one considers that by discharging Cooper and laying off Sype, Topolewski removed the two leading union adherents from the shop, and thereby demonstrat- ed to the remaining employees the length to which he would go to break the Union. To sum up at this point, I fmd, in light of the Compa- ny's hostility toward unionization, including its expressed policy of not wanting union adherents, the timing of the action taken against Cooper and Sype, the Company's in- creasingly severe campaign of unlawful conduct de- signed to undermine the Union, and the demonstrably prextextual reasons for its actions, that the Company issued the April 7 warning to Cooper, discharged Cooper, and laid off Sype because of their leading role in supporting the Union. The Company therefore violated 772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) and (3) of the Act. I further find that the Company violated Section 8(a)(1) and (3) by issuing warning notices to Carter to pressure him to abandon his support for the Union, and by giving Marchelwicz a warning notice to conceal the ture reason for discharging Cooper. "In cases where an employer terminates an em- ployee as part of an effort to camouflage the discrimina- tory discharge of a known union activist, the Board has held that all that is required is finding that the discharge of the one was undertaken in an attempt to validate or support the discharge of the other." L. C. Cassidy & Son, 272 NLRB 123, 131 (1984), and cases cited. It follows that lesser discipline for the same purpose would also be unlawful. Concerning all these matters, for the reasons discussed above, the General Counsel presented a prima facie case that the Company engaged in such actions be- cause of protected employee union activity, and the Company failed to meet its burden of establishing that it would have engaged in such conduct in the absence of pretextual activity. Further, I find the discriminatory ac- tions against Cooper, Sype, and other employees dis- cussed above may properly be considered as evidence of the Company's motivation for the remaining actions against Cooper and Sype. As indicated, the complaint alleges that since on or about April 1, the Company discriminatorily issued an increased number of written reprimands to unit employ- ees. In addition to the reprimands discussed above (all were found unlawful) and the April 15 warning to Cooper, and warnings issued to Sype (which will be dis- cussed), the company personnel records presented in evi- dence indicate only one other use of written discipline since April 1. That was the discharge of Charles Brown on April 15, assertedly for unexcused absence (not for ill- ness). In January prior to the union campaign, Brown was given a 2-day suspension for loafing on the job after being verbally warned. April 15 was a day marked by discussion between the Company and the Union concern- ing the problems of individual employees, including Brown. (Brown had been returned to janitorial work with reduction in pay, after an unsuccessful try at engine teardown.) April 15 was also marked by company disci- plinary action against employees whose individual con- cerns were discussed that day (Carter, Brown, and Cooper). The complaint does not allege that Brown was unlawfully terminated, and the General Counsel does not discuss the matter in her brief. I find that Brown's dis- charge was not litigated in this case and, therefore, I am making no findings whether the action taken against him was lawful. Before returning to the April 15 warning to Cooper, I shall discuss the Company's next actions against Sype. He was never recalled to work. On May 15 Sype went to the plant to attend the negotiation session. The next day he went to pick up his vacation paycheck and was summoned to the office where Topolewski and Denardi Jr. handed him two disciplinary notices. The first, dated May 9, read as follows: Subject: Poor Workmanship On May 6, 1987 Engine #6VA-49347 was put on the dyno. After approximately on (1) hour the unit would not pull any oil, upon tear down it was dis- covered that the oil pump was not packed with lube for initial start. This cost American Fleet Mainte- nance 1/2 day for 2 men to R&R unit . This is not consistent [sic] with proper work standards. Any further work quality problems may result in you [sic] dismissal. The second, dated May 14, read as follows: Subject: Poor Workmanship On May 8, 1987, Unit #6VA-88471 would not draw oil. Upon inspection it was not that the oil pump was not packed, this caused 1/2 day for 2 men to repair this problem. On May 6, 1987, in the afternoon same engine would not start. Cause timing. Upon tear down it was found that there were two timing marks on crank gear and wrong marks used, even though we had studied this same problem 2 week porior [sic] you still did not check your work. This caused 25 man hours to correct. Due to your disregard of work quality your serv- ices are no longer required. There was no discussion at that time of either notice, al- though Topolewski had mentioned the crank gear at the negotiating session. As indicated, Sype did not work after May 5. The Company never asked Sype about any of the matters, or invited him to examine or explain any of the alleged problems. On the basis of Topolewski's own testimony, the dis- charge notice was demonstrably false , at least insofar as the first paragraph suggested that Sype had done some- thing wrong. Topolewski testified in sum that the notice was true, including the dates and order in which the events occurred. Topolewski testified in sum as follows: Ron Carter told him that the motor would not start. To- polewski concluded that one of three things must be missing, namely, air, fuel, or compression. He knew that the motor had air and fuel. However, if the oil timing was off, there would be no compression. Topolewski de- scribed the correction process as follows: Q. So what was involved in correcting the prob- lem? A. Oh, you have to remove the unit from the dyno, remove the bell housing, you have to remove the oil pan, you have to remove the fall wheel, you have to remove the fall wheel housing, you have to get into gear. It's quite a lengthy job. You have to return racks, tune-up, everything. It's about a major a thing you could do short or rebuilting the motor. If as indicated in the discharge notice, all this occurred on May 6, then plainly Sype could not be responsible if on May 8, after reassembly, the oil pump was not packed with lube. (This assumes that the pump was required to be packed with lube, a matter which is in dispute.) Rather, the fault would have been that of the person or persons who dismantled and reassembled the engine. AMERICAN FLEET MAINTENANCE CO. 773 The false assertion contained in the discharge notice also casts doubt on Topolewski's assertion that the oil pump had to be packed with lube . Cooper and Sype tes- tified in sum that the Company never instructed them to pack the oil pump with lube, and that such procedure was not necessary to draw or pump oil . In support of their testimony , the General Counsel presented in evi- dence a Detroit diesel manual that was made available by the Company to the shop personnel . The manual in pertinent part described the procedure for installation of the oil pump for Detroit diesel V-71 engine. The manual did not indicate that the pump had to be packed with lube. Sype testified that he referrd to the manual to re- solve questions. Sype testified that, as indicated by the manual, they applied a light film of oil, but that this was not the same as packing the pump with lube, which is a heavier oil . Topolewski testified that the employees were required to pack the pump with a special lubricant de- signed for engine assembly, which was similar to heavy oil, and that this procedure was necessary to prevent a dry start, which could ruin the motor . Topolewski testi- fied that the manual was not applicable because it was "more geared to the field repair" of engines rather than the Compnay's work of completely rebuilding engines. Topolewski also testified that the pumps on which the Company worked operated differently from those de- scribed in the manual. If so, then these distinctions would apply to all the engines on which Sype worked. If Topolewski were correct, then it is difficult to see why the Company would provide its personnel with a manual which was inapplicable to the Company 's operations and therefore misleading . If this matter were all that was in- volved in the present case, then I would have greater difficulty in resolving the credibility question presented between the uncorroborated testimony of Topolewski and the testimony of Cooper and Sype , which is cor- roborated by the manual . However, as discussed , the evi- dence in the present case indicates that Topolewski was discriminatorily motivated toward Cooper and Sype be- cause of their union activity and was looking for pretex- tual reasons to remove them from the shop . As also indi- cated, Topolewski's testimony was demonstrably not credible in several respects. I have no comparable reason to question the credibility of the employees . I credit Cooper and Sype. Therefore, it follows that the Compa- ny's professed reason for the disciplinary warning dated May 9 was false, and that the first paragraph of the ter- mination notice was, for this additional reason, also false. With respect to Sype, this leaves only the second para- graph of the discharge notice, i.e., the allegation that Sype used the wrong timing mark on the crank gear. The evidence indicates that this type of problem was un- usual and difficult to avoid . A crank gear should normal- ly have only one timing mark. Sometimes a crank gear had two timing marks, or a second mark that looked like a timing mark. These marks were small and difficult to locate and identify . In early March Donald Cooper had a problem with double marks . A crank gear had double marks, and he did not seee the second mark . When the gear was set in place, it put the engine out of time, and the engine did not run properly. As a result the engine had to be removed from the dynomometer (where it was being tested), and partially dismantled . After Cooper lo- cated the problem, he reassembled the engine, including the crank gear . Cooper was not warned verbally or in writing or given any other discipline as a result of this incident. He was simply told to pay more attention. To- polewski testified that he took no disciplinary action be- cause : "You know, people are human. Mistakes do happen." Sype had no record of making such a mistake. Prior to the day of his termination he had never been given any written warning for poor workmanship or any other reason. Testimony and the Company's records fail to indicate that the Company ever discharged an em- ployee solely for poor workmanship . As indicated, the Company simply demoted Charles Brown when it became apparent that he was not qualified to perform the work to which he was assigned . With respect to the problem of double timing marks , Topolewski initially tes- tified that the solution was to index to gear by making a center punch mark to locate the correct position. Later he testified that the proper procedure was to discard the crank gear with double marks and get one with one mark. If Topolewski was confused about how to deal with this problem, then it is unlikely that , absent a dis- criminatory motive, he would write up or discharge an employee for dealing with the problem in the wrong way, when the employees had no prior record of making such a mistake. Sype testified that he had no recollection of double timing mark on the crank gear referred to in his termination notice. As indicated, Sype was not con- fronted with this matter until 10 days after he had last worked on the engine . Even if the problem developed as described, which is questionable, I fmd that the Compa- ny has failed to meet its burden of establishing that Sype would have even been disciplined, let alone discharged, in the absence of Sype's union activities. As the General Counsel presented a prima facie case that the Company acted against Sype because of the union activity, I fmd that the Company violated Section 8(a)(1) and (3) of the Act by issuing written warnings to Sype and by dis- charging him. The remaining alleged 8(a)(3) violation is the April 15 warning to Cooper, alleging that oil leaked from an engine because two oil pump bolts were left out. There are 8 bolts that connect the oil pump to the engine, and a total of 14 bolts on the pump housing. There are two ad- ditional bolts that are used to connect the engine to the dynomometer. However, if these were not attached se- curely, the engine would not be secured to the dynomo- meter. Cooper was not shown the alleged problem, and he was not told which bolts were missing or when oil leaked (if it did). Topolewski testified that Ronald Carter, who was operating the dynomometer , told him about the problem (although Robert Swigert normally operated the engine dynomometer). Therefore, Topo- lewski's testimony substantially consists of hearsay. In the absence of any testimony by Carter , I am not per- suaded that the Company has presented credible evi- dence concerning what, if anything, happened. As indi- cated, I have ample reason to question Topolewski's credibility. As found, the Company was looking for a pretext to get rid of Cooper, and shortly thereafter dis- 774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD charged him because of his union activity. I find that the Company issued the written warning of April 15 to Cooper because of his union activity, and thereby violat- ed Section 8(a)(1) and (3) of the Act. E. Withdrawal of Recognition and Refusal to Bargain with the Union Under present Board law, a union that is lawfully rec- ognized by the employer but not certified by the Board is conclusively presumed to have majority status for a reasonable period of time from the date of recognition. After that reasonable period of time expires, the union enjoys a rebuttable presumption of majority status, which can be overcome by the employer demonstrating that the union in fact does not have a majority representative status, or that the employer has a reasonably grounded doubt concerning the union's majority status, asserted in good faith, based on objective considerations, and raised in a context free of employer unfair labor practices. Tajon, Inc., 269 NLRB 327 (1984); Terrell Machine Co., 173 NLRB 1480, 1480-1481 (1969), enfd. 427 F.2d 1088 (4th Cir. 1970); Hotel & Restaurant Employees of Pocatel- lo, 213 NLRB 651 (1974). In the present case, as found, the Company lawfully and voluntarily recognized the Union as the exclusive representative of its employees in an approproate unit. The Company contends (Br. 18-20) that it had a good- faith doubt of the Union's majority status, based on the May 8 petition and, therefore, was privileged to with- draw recognition and discontinue bargaining with the Union. The argument fails because the Company did not have a good-faith doubt. Rather, the Company withdrew recognition in the context of flagrant unfair labor prac- tices that were calculated to undermine the Union's ma- jority status. Even if the Company had not engaged in such unlawful conduct, the withdrawal of recognition would be premature because a reasonable point of time had not elapsed. "Absent a reasonable period of time for bargaining following recognition, the actual majority status of a union is immaterial. . . . [R]easonable time does not depend upon either the passage of time or the number of calender days on which the parties met. Rather, the issue turns on what transpired during those meetings and what was accomplished therein . . . . the test is what was accomplished at the meetings that were held." Tajon, Inc., supra, 269 NLRB at 327-328. Meas- ured by these standards, a reasonable period of time did not elapse. The parties never reached the point of serious and substantial discussion of contract provisions. That failure was caused primarily by the Company's delaying tactics repeated requests for sample contracts, and failure to submit any contract proposals. The Company did not remedy its unlawful conduct by agreeing to meet once with the Union after the first complaint was issued in this case. Indeed, the Company does not contend that this meeting constituted a resumption of recognition and bar- gaining. Therefore, a bargaining order is warranted. Having made such determination, I find it necessary to decide whether, in the absence of the recognition agree- ment, the Union would be entitled to a remedial order under the principles of NLRB v. Gissel Packing Co., supra. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All full-time and regular part-time diesel, automo- tive, journeymen and apprentice mechanics, leadmen, general maintenance, stockroom clerks, parts pickupmen, helpers, and porters employed by the Company at its Detroit, Michigan facility, excluding all office clerical employees, salesmen, truckdrivers, dock and warehouse- men, guards and supervisors as defined in the Act consti- tute a unit approptiate for the purpose of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since March 30, 1987, the Union has been and is the exclusive collective-bargaining representative of the Company's employees in the unit described above. 5. By failing and refusing to bargain in good faith with the Union as the representative of the employees in the appropriate unit, and by unilaterally changing terms and conditions of employment without prior notice to the Union and without affording the Union a meaningful op- portunity to negotiate and bargain concerning such changes, the Company has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By discharging in regard to the terms, conditions, and tenure of employment of Donald Cooper and Pete Sype, and the terms and conditions of employment of Ronald Carter and Stanley Marchelwicz, thereby dis- couraging membership in the Union, the Company has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed by Sec- tion 7 of the Act, the Company has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1) (3), and (5) of the Act, I shall recommend that it be required to cease and desist there- from and take certain affirmative action designed to ef- fectuate the policies of the Act. I shall recommend that the Company be ordered to recognize and on request bargain with the Union as the bargaining representative of the employees in the appropriate unit. Having found that the Company discriminatorily terminated Donald Cooper and Pete Sype, I am recommending that the Company be ordered to offer them immediate and full reinstatement to their former jobs or , if those jobs no longer exists, to substantially equivalent positions, with- out prejudice to their seniority or other rights and privi- leges previously enjoyed, and make them whole for any loss of earnings and benefits that they may have suffered from the time of their terminations to the date of the Company's offer of reinstatement, with interest. I shall AMERICAN FLEET MAINTENANCE CO. 775 also recommend that the Company be ordered to remove from its records any reference to the unlawful termina- tions of Cooper and Sype, and the unlawful written rep- rimands to ' Cooper, Sype, Carter, and Marchelwicz, to give each of them written notices of such removal, and to inform them that this unlawful conduct will not be used as a basis for future personnel actions against them. See Sterling Sugars, 261 NLRB 472 (1982). Backpay shall be computed in accordance with the formula approved in F. W. Woolworth Co., 90 NLRB 289 (1950). I am further recommending that the Company be or- dered to reinstate Blue Cross-Blue Shield group health insurance for the union employees, and reimburse those employees for any medical or dental bills they have paid to health care providers that the policy would have cov- ered, and for any premiums they may have paid to con- tinue medical and dental coverage in the absence of the Company's required contributions, less the amount of the 50-percent-per-hour wage increase that the Company granted the employees to compensate for the loss of such coverage; such reimbursement to be with interest. Inter- est on backpay and reimbursement shall be as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).6 It is also recommended that the Company be re- quired to preserve and make available to the Board, or its agents, on request, payroll and other records to facili- tate the compution of backpay due. I further find that the unfair labor practices in this case, which include flagrant and serious violations of three sections of the Act which were directed and com- mitted at the highest level of management, demonstrate that the Company has a general disregard or hostility for the Act. Therefore, I am recommending that the Compa- ny be ordered to cease and desist from infringing in any manner on the rights guaranteed the employees by Sec- tion 7 of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7 ORDER The Respondent, American Fleet Management Com- pany, Inc., Detroit, Michigan, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, CLC, or any other labor organization, by discriminatori- ly discharging, laying off, or disciplining employees, or in any other manner discriminating against them with regard to hire or tenure of employment or any term or condition of employment. (b) Interrogating employees about their union attitude or activities or those of their fellow employees. 6 Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. 7 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 the shall be deemed waived for all purposes. (c) Threatening employees with plant closure or other reprisal if they support the Union or any other labor or- ganization; or promising them benefits if they refrain from supporting the Union or any other labor organiza- tion. (d) Changing terms and conditions of employment to discourage support for the Union or any other labor or- ganization; provided, however, that nothing in this Order shall be construed as requiring the Company to with- draw the 50-percent-per-hour increase that is granted in April 1987. (e) Failing or refusing to recognize and bargain collec- tively in good faith with the Union as the exclusive rep- resentative of all its employees in the above-described appropriate unit. (f) Unilaterally changing terms and conditions of em- ployment of unit employees without prior notice to the Union and without affording the Union a meaningful op- portunity to negotiate and bargain concerning such changes as the representative. (g) 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 Donald Cooper and Pete Sype immediate and full reinstatement 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 make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision. (b) Remove from its files any reference to the unlawful terminations of Cooper and Sype, and the unlawful repri- mands to Cooper, Sype, Ronald Carter, and Stanley Marchelwicz and notify each of them in writing that this has been done and that the unlawful conduct will not be used against them in any way. (c) Recognize and, on request, bargain collectively with the Union as the exclusive representative of all em- ployees in the appropriate unit described above, with regard to rates of pay, hours of employment, and other terms and conditions of employment and, if an under- standing is reached, embody it in a signed agreement. (d) Reinstate the Blue Cross-Blue Shield group health insurance coverage for the unit employees and reimburse those employees for any medical or dental bills they have paid to health care providers that the policy would have covered, and for any premiums they may have paid to continue health care coverage in the absence of the Company's required contributions, less the amount of the 50-cent-per-hour wage increase which the Company granted to compensate for the loss of such coverage; such reimbursement, with interest, as set forth in the remedy section of this decision. (e) 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- 776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD essary to analyze the amount of backpay due under the terms of this Order. (f) Post at its Detroit, Michigan place of business copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Re- spondent's authorized representative, 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 8 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 " 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 or- dered us to post and abide by this notice. WE WILL NOT discourage membership in International Association of Machinists and Aerospace Workers, AFL-CIO, CLC, or any labor organization, by discri- minatorily discharging, laying off, or disciplining you, or in any other manner discriminating against you with regard to your hire or tenure of employment or any terms or condition of employment. WE WILL NOT interrogate you about your union atti- tude or activities or those of your fellow employees. WE WILL NOT threaten you with plant closure or other reprisal if you support IAM or any other labor or- ganization or promise you benefits if you refrain from supporting IAM or any other labor organization. WE WILL NOT change terms and conditions of employ- ment to discourage support for IAM or any other labor organization; provided, however, that this shall not be construed as requiring us to withdraw the 50-cent-per- hour wage increase we granted in April 1987. WE WILL NOT fail or refuse to recognize and bargain collectively in good faith with IAM as the exclusive rep- resentative of all our employees in the following appro- priate unit: All full-time and regular part-time diesel, automo- tive, journeymen and apprentice mechanics, lead- men, general maintenance, stockroom clerks, parts pickupmen, helpers and porters employed by us at our Detroit, Michigan facility, excluding all office clerical employees, salesmen, truckdrivers, dock and warehousemen, guards and supervisors as defined in the Act. WE WILL NOT unilaterally change terms and condi- tions of employment of unit employees without prior notice to IAM and without affording IAM a meaningful opportunity to negotiate and bargain concerning such changes as the representative. WE WILL NOT in any other manner interfere with, re- strain, or coerce you in the exercise of your right to engage in union or concerted activities, or to refrain therefrom. WE WILL offer Donald Cooper and Pete Sype immedi- ate and full reinstatement 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 make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, with interest. WE WILL remove from our files any reference to the unlawful terminations of Cooper and Sype, and the un- lawful reprimands to Cooper, Sype, Ronald Carter, and Stanley Marchelwicz and notify each of them in writing that this has been done and that the unlawful conduct will not be used against them in any way. WE WILL recognize and, on request, bargain collec- tively with IAM as the exclusive representative of all employees in the appropriate unit described above, with regard to rates of pay, hours of employment, and other terms and conditions of employment and, if an under- standing is reached, embody it in a signed agreement. WE WILL reinstate the Blue Cross-Blue Shield group health insurance coverage for the unit employees and re- imburse those employees for any medical or dental bills they have paid to health care providers that the policy would have covered, and for any premiums they may have paid to continue health care coverage in the ab- sence of our required contributions, less the amount of the 50-cent-per-hour wage increase which we granted to compensate for the loss of such coverage; such reim- bursement to be with interest. AMERICAN FLEET MAINTENANCE COMPA- NY, INC.