Bob's Motors, Inc.

National Labor Relations Board - Board Decisions

May 2, 1979

241 N.L.R.B. 1236 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bobs Motors, Incorporated and Local Lodge 2639 of
the International Association of Machinists and
Aerospace Workers, AFL-CIO
Bill Coffey, d/b/a Coffey's Body Shop and Local
Lodge 2639 of the International Association of Ma-
chinists and Aerospace Worker, AFL-CIO. Cases
9-CA-11965-1, 9-RC-12257, and 9-CA-11965-2
May 2, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On September 11, 1978, Administrative Law Judge
Almira Abbot Stevenson issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed limited cross-exceptions to the Decision
of the Administrative Law Judge and supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.2
The Administrative Law Judge found that Respon-
dent's part owner, Robert Johnson, was asked by em-
ployee Dempsey on three occasions in May 1978
whether he should honor a subpena served on him by
the General Counsel to testify in this proceeding.
Crediting Johnson's testimony, she found that on the
first occasion, Johnson, after consulting with Respon-
dent's counsel, relayed to Dempsey the information
that the subpena was not enforceable; Johnson fur-
ther told Dempsey as he did on the two later occa-
sions, that it was up to Dempsey to decide whether to
appear and testify. The Administrative Law Judge
concluded that Johnson's conduct did not violate Sec-
The General Counsel and Respondent have excepted to certain credibil-
ity findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an Administrative Law Judge's resolutions with
respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). we
have carefully examined the record and find no basis for reversing her find-
ings.
We disavow the Administrative Law Judge's finding that Respondent.
Bobs Motors, Incorporated, employs three body (repair) men at its main
operation in Gauley Bridge, west Virginia. as the record does not support
this finding. This inadvertent error is insufficient to affect the results of our
decision herein.
2 We shall modify par. 2(a) of the recommended Order so as to conform to
the Administrative Law Judge's recommended remedy.
tion 8(a)(1) of the Act based on her finding that the
information given to Dempsey was not clearly errone-
ous, there was no indication that Johnson intended to
or did discourage Dempsey from honoring the sub-
pena, and the fact that Dempsey appeared and testi-
fied at the hearing in this proceeding.
We disagree with the Administrative Law Judge's
conclusion that Johnson did not violate Section
8(a)(l) by advising Dempsey, in response to Demp-
sey's questions as to whether he should honor the
subpena, that the Board's subpena was not enforce-
able and further that it was up to Dempsey to decide
whether to appear at the hearing. In this regard, un-
der the Act and the Board's Rules and Regulations a
person served with a subpena is required to appear
and to give testimony pursuant to such subpena.3
Furthermore, it is well settled that when an employer
informs an employee that he need not comply with a
Board subpena or when it advises the employee that
he is "free to suit himself in deciding whether to go or
not to go to a Board hearing in response to the com-
mands of a subpena, such statements constitute un-
lawful interference with Section 7 rights and are a
violation of Section 8(a)(l) of the Act."4
We find that Johnson's informing Dempsey that
the subpena was unenforceable, in response to Demp-
sey's specific inquiry as to whether he had to honor
the subpena, was tantamount to advising him that he
did not have to comply with the subpena. In addition,
under the facts as found by the Administrative Law
Judge, on each of the three occasions Johnson told
Dempsey that it was up to Dempsey to decide
whether to appear at the hearing. We therefore fur-
ther find that Johnson's conduct tended to impede the
Board in the exercise of its power to compel the at-
tendance of a witness in its proceedings and tended to
deprive employees of vindication of their rights
through the participation of witnesses in a Board pro-
ceeding. Accordingly we conclude, contrary to the
Administrative Law Judge, that Respondent, through
Johnson's conduct, has violated Section 8(a)(l) of the
Act.5
In view of the extensive and serious unfair labor
practices found herein, we agree with the Administra-
tive Law Judge that a broad cease-and-desist order is
necessary.
ISee Sec. 11(1) of the National Labor Relations Act, as amended; Sec.
102.31. National Labor Relations Board Rules and Regulations. Series 8, as
amended. See also Winn-Dixie Srores, Inc.. and Winn-Dixie Greenville, Inc.,
128 NLRB 574. 578-579 (1960).
4 Richard T Furiney and Naomi P. Furiney, a Co-parinership d/bla Mr. F's
Beef and Bourbon, 212 NLRB 462. 466 (1974).
Richard T Furtney and Naomi P. Furtney, a Co-partnership d/bla Mr. Fs
Beef and Bourhon, supra. See also Crockett-Bradley, Inc., et al., 212 NLRB
435, 445 (1974); Goulds Pumps, Inc., Vertical Pump Division, 196 NLRB 820.
824-825 (1972).
241 NLRB No. 200
1236
BOBS MOTORS, INCORPORATED
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Bobs
Motors, Incorporated, Gauley Bridge, West Virginia,
its officers, agents, successors, and assigns, shall take
the action in the said recommended Order, as so
modified:
I. Substitute the following for paragraph (b):
"(b) Coercively interrogating employees; impor-
tuning them to engage in surveillance; threatening
them with demotion, more onerous working condi-
tions, loss of benefits, subleasing the area where they
work, or plant closure to discourage union activity; or
interfering with the vindication of employee rights by
telling employees that they do not have to honor
Board subpenas."
2. Substitute the following for paragraph 2(a):
"(a) Offer Leroy Hanshaw, Dennis Butner, and
Thomas Bibb immediate and full reinstatement to
their former jobs or, if their jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges pre-
viously enjoyed, curtailing to the extent necessary its
existing practice of contracting out some of its vehicle
repair work and resuming the performance of such
work to the extent necessary to effectuate the rein-
statement of the above-named employees; and make
the above-named employees whole for any loss of
earnings they may have suffered by reason of our dis-
crimination against them, with interest, in the manner
set forth in the section of this Decision entitled 'Rem-
edy.' "
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the challenges to the
ballots cast by Leroy Hanshaw, Dennis Butner, and
Thomas Bibb in the election conducted in Case 9-
RC-12257 be, and they hereby are, overruled, and
that said case be, and it hereby is, severed from the
instant proceeding and remanded to the Regional Di-
rector for Region 9 for further appropriate action.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Local
Lodge 2639 of the International Association of
Machinists and Aerospace Workers, AFL-CIO,
or any other labor organization, by terminating
or otherwise discriminating against employees in
regard to hire or tenure of employment or any
other term or condition of employment.
WE WILL NOT coercively interrogate employ-
ees; importune them to engage in surveillance;
threaten them with demotion, more onerous
working conditions, loss of benefits, subleasing
the area where they work, or plant closure to
discourage union activity; or interfere with the
vindication of employee rights by telling employ-
ees that they do not have to honor Board sub-
penas.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section 7 of
the National Labor Relations Act, as amended.
WE WILL offer Leroy Hanshaw, Dennis But-
ner, and Thomas Bibb immediate and full rein-
statement to their former jobs or, if their jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, curtailing
to the extent necessary the existing practice of
contracting out some of our vehicle repair work
and resuming the performance of such work to
the extent necessary to effectuate the reinstate-
ment of the above-named employees; and WE
WILL make the above-named employees whole
for any loss of earnings they may have suffered
by reason of our discrimination against them,
with interest.
BOBS MOTORS, INCORPORATED
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
A hearing was held in this consolidated proceeding on June
15-16, 1978, in Charleston, West Virginia. The charge in
Case 9-CA- 11965-I was filed and served on Respondent,
Bobs Motors, Incorporated,' November 25, 1977; the
amended charge was filed and served January 9, 1978. The
charge in Case 9-CA- 11965-2 was filed and served on Re-
spondent Coffey's Body Shop, January 9, 1978. On Decem-
ber 15, 1977, an election was conducted by the National
Labor Relations Board in an appropriate unit of all service
and parts employees, including plant clerical employees,
employed by Bobs Motors, Incorporated, at its Gauley
Bridge, West Virginia, location. The vote was six for and
five against the Union, with three challenged ballots. The
complaint in Cases 9-CA- 11965-1 and 9-CA- 11965-2 was
issued February 7, 1978. On February 10, 1978, a report on
challenged ballots, Order directing hearing, Order consoli-
dating cases, and notice of hearing were issued by the Re-
gional Director. The complaint in Cases 9-CA-11965-1
I The name of Respondent is given as stated at the hearing
1237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 9-CA-11965 2 was separately answered by Respon-
dents. The complaint and answers were amended at the
hearing.
The issues are whether Respondents are a single em-
ployer; whether various alleged violations of Section 8(a)(I)
of the National Labor Relations Act, as amended, were
committed; whether Respondent Bobs Motors' separately
located body shop was sublet and Leroy Hanshaw, Dennis
Butner, and Thomas Bibb were terminated in violation of
Section 8(a)(3) of the Act; and whether the ballots cast by
these three employees in the December 15, 1977, election
should be counted.
For reasons explained below, I find that Respondents are
not a single employer and recommend dismissal of the com-
plaint against Bill Coffey d/b/a Coffey's Body Shop; that
the Respondent Bobs Motors committed most, but not all,
of the unfair labor practices alleged: and that the challenge
to the ballots should be overruled.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the arguments presented at the hearing by the parties, I
make the following:
FINDINGS OF FACT
CONCLUSIONS OF LAW
I. JURISDICTION
Respondent Bobs Motors admits, and I find, that it is a
West Virginia corporation engaged in the sale and servicing
of automobiles and trucks at its Gauley Bridge, West Vir-
ginia, facility; that during the past 12 months it had a gross
volume of business in excess of $500,000 and purchased
goods and materials valued in excess of $50,000 which were
shipped directly to its Gauley Bridge, West Virginia, facility
from outside West Virginia; and that it is an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
The complaint also alleges, and the answers deny, that
Bobs Motors and Coffey's Body Shop are a single inte-
grated enterprise with common ownership, management,
supervision, facilities, and centralized control over labor re-
lations and, as such, are a single employer.
Robert Johnson is part owner and president, and Robert
Suit is part owner and supervisor, of Bobs Motors. At its
main operation, Bobs Motors employees Joe Linkenhoker.
six mechanics, three bodymen, two partsmen, two sales-
men, and three secretaries. In addition, Bobs Motors was
engaged from 1971 until October 24, 1977, in body and
paint work on motor vehicles at a geographically separate
location in Gauley Bridge about eight-tenths of a mile
across the river from its dealership facility. At material
times Bobs Motors was the leasee of the building contain-
ing the body shop which also housed a restaurant and three
apartments sublet by Bobs Motors. Bobs Motors employed
three employees in its across-the-river body shop opera-
tion-Leroy Hanshaw and Dennis Butner, bodymen and
Thomas Bibb, helper, all of whom were under the supervi-
sion of management officials located primarily at the deal-
ership facility.2 Twenty-five to 35 percent of the work per-
formed was warranty work; 25 to 35 percent was used-car
work; and the rest was damage work brought in by insur-
ance agents.
Johnson decided to try to dispose of the separate body
shop in May 1977. Although he did not advertise, he had
two discussions with Walter Backus, foreman of Brown
Chevrolet in Ansted, West Virginia, about taking over the
operation, but no agreement was reached. In July Backus
informed William Coffey, who was also employed at Brown
Chevrolet, that he was thinking of subleasing the Bobs Mo-
tors operation; 2 days later, Coffey approached Johnson on
his own behalf. Coffey and Johnson were not related or
acquainted, and this was their first meeting.
Coffey has 37 years experience in automobile body work,
both as manager and owner of shops in Ohio, Virginia, and
West Virginia. When he called on Johnson in July, no deal
was made because Coffey considered the $400-per-month
rental price for the shop and equipment too high. The two
men talked again in August with the same result. In mid-
October, Coffey negotiated a $300 rental which covered the
body shop and $12,000 to $15,000 worth of tools and equip-
ment. Neither Johnson nor Bobs Motors lent any money to
Coffey. Coffey started up with $300-$400 of his own money
and $800 paid to him by Johnson on a bill for work per-
formed in the past.' Although Johnson told Coffey that he
was making no money on the body shop, Coffey thought
that he could make a profit by performing the body work
himself with one helper and by bringing in $3,000-$6,000
worth of additional tools he already owned.
Coffey executed a sublease dated October 17, 1977 effec-
tive November 1, 1977, and took possession of the shop
October 24, 1977. The lease contains no provisions with
respect to employees or labor relations of the leasee. John-
son terminated the three employees. Coffey informed Han-
shaw and Butner he was closing for 2 weeks for cleanup
and remodeling, and that he would call them if he needed
them. Coffey retained Bibb to help him with the cleanup,
and he is still employed. Neither Hanshaw nor Butner was
ever hired by Coffey although Butner asked for work on
several occasions.
Coffey spent his first 2 weeks in possession cleaning up
and opened for business November 1, with himself as body-
man and Bibb as helper. Until the end of October the shop
remained in Bobs Motors' name, and for the first month or
so 50 percent of Coffey's work came from Bobs Motors,
Coffey giving it a 40-percent discount on labor. Coffey used
Bobs Motors order sheets for about 3 weeks until his own
sheets were printed. The telephone remains in Bobs Motors'
name.
Coffey purchases Chrysler, Dodge, and Jeep parts from
Bobs Motors at a 15-percent markup. Coffey pays all utili-
ties and telephone charges and has paid rent on the shop
since November 18, 1977. He occasionally gets behind in
rent payments and on his parts bills. Bobs Motors charges
no interest on Coffey's delinquencies, or on those of the
2 As more fully discussed below. there is no substantial evidence to support
Respondent's contention. made for the first time at the hearing, that Leroy
Hanshaw was a supervisor.
Although this evidence is undisputed. Johnson's indebtedness to (Coffey
is not clearly explained.
1238
BOBS MOTORS, INCORPORATED
subleasees of other portions of the building in which the
body shop is located.4
Coffey's venture has been successful from the start. He
has often turned down work for Bobs Motors because it is
"too cheap," and only 15-30 percent of his work now
comes from or through Bobs Motors.' He no longer gives
that Company a discount on labor. On December 2, 1977,
Coffey hired two more helpers; on December 5, he hired
Jim Wiseman, a bodyman, and Wanda Stewart, a secretary.
Coffey testified he did not call either Hanshaw or Butner
because he needed a first class bodyman, he was not famil-
iar with their qualifications, and several cars repaired by
them for Bobs Motors came back to him for rework.6
Bobs Motors has no plans to reacquire the body shop
operated by Coffey.
The above-credited facts establish that Coffey's Body
Shop occupies the same location, performs similar work,
and uses much of the same equipment as Bobs Motors did.
However, it is also established that Bobs Motors and Bill
Coffey d/b/a Coffey's Body Shop are wholely separate en-
terprises with no common ownership, management, or su-
pervision, and no centralized control of labor relations.
They are therefore not a single employer engaged in a sin-
gle integrated business enterprise.' The complaint against
Respondent Bill Coffey d/b/a Coffey's Body Shop must be
dismissed for want of jurisdiction, since its business does
not n:et the Board's jurisdictional standards for either re-
tail or nonretail enterprises," and it was not involved in the
unfair labor practices.
II. THE LABOR ORGANIZATION INVOLVED
Local Lodge 2639 of the International Association of
Machinists and Aerospace Workers, AFL CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
IIl. THE UNFAIR LABOR PRACTICES
A. Introduction
The Union organizational drive among Bobs Motors em-
ployees began September 15, 1977. when union representa-
tive Roy Harper approached Leroy Hanshaw and Dennis
Rohert Johnson recently purchased this entire building outright.
I do not credit mechanic Walter Hypes that Coffey does all of Bobs
Motors' body work. as he was not shown to be in a position to know.
6 William Coffey credibly testified he never discussed the Union with Rob-
ert Johnson. and that he first learned of the Union campaign I or 2 weeks
after he took over the body shop when Thomas Bihb volunteered that "they
was trying to get a union in" without identifying any body shop employees
as instigators.
' El Sol Mexican Foods, Inc.. and Naiaha Cervanies d/h/a La Paloma
Foods Co., 200 NLRB 804 (1972); Lassu.s Fuel Co., Inc., 196 NLRB 703
11972): Internationol Uniion of Operating Engineers, Local 428, AFI. CIO
(Wallace Godre et at.), 169 NLRB 184 19681.
s The record shows that Coffe)'s gross weekly income amounts to $1200 to
$1500 lollars which, projected over a 52-week period, amounts to $62.400 to
$78,000. Its purchases of parts from Bobs Motors which originate from out-
side West Virginia totaled S7.031.15 for the 5-month period November .
1977. through April 30, 1978. which projects to a total ofS 16,874.76 for a 12-
month period The record contains no commerce data on the body shop
under Bobs Motors' perations.
Butner in the body shop.9 Harper returned I week later to
give authorization cards to Hanshaw. Hanshaw signed the
cards September 21 and obtained Butner's signature on a
card September 22. Hanshaw and Bibb also spread the
word among the main garage mechanics who visited the
body shop to sign cards. Several meetings were held in
nearby towns between union representatives and employees
of various dealerships being organized which approxi-
mately six of the Respondent's employees attended. Han-
shaw and Bibb attended the first two of the meetings, and
Butner attended the second meeting. Robert Johnson was
informed by another dealer the morning after the first meet-
ing that some of his employees had attended. Johnson ad-
dressed two letters to his employees on November 21 and
December 12, and he called them together for two meetings
in early December to urge them to vote against the Union
in the December 15, 1977, election.10
B. Section 8(a)(1) Violations
I. President Robert Johnson
The complaint alleges, and the answer denies, that John-
son violated Section 8(a)(l) of the Act on several occasions
in September, October, and December 1977, and May 1978
by interrogating employees, by threatening them, and by
telling an employee he did not have to show up for the
NLRB hearing in this proceeding."
Mechanic Warren Dempsey testified that on the day af-
ter the first union meeting Johnson walked up to him in the
main garage,
. . .and asked me if I heard anything about a union
meeting the night before. And I said no, and I asked
him what kind of a meeting it was supposed to be, and
he said some dumb asses from Charleston was trying to
start a union up in that area. And I said, no, I hadn't
heard anything about it. He said, well, I'm just looking
for an excuse to retire . . . He said that he had heard
that there was eight of his employees there.
Hanshaw was hired as a bodyman in May 1975 and was the most senior
employee in the shop with the most bodyman experience. The highest
earner. he was the only body shop employee paid on a commission basis. He
started at 50 percent of the labor costs and after 1-112 years requested and
received an increase to 55 percent. All body work arrived at the shop tick-
eted with the name of the employee designated to do the work by Joe Lin-
kenhoker who was employed at the dealership location and visited the shop
about once each week for 10-15 minutes. Owners Johnson and Sut each
visited the shop once each month for 10- 15 minutes. Those three inspected
the work and told Hanshaw and Burner to redo it if necessary. The body
shop employees worked independently. calling Linkenhoker, Suit. or John-
son on the telephone when they had questions or problems. Hanshaw per-
formed no estimate or other paperwork and did not delegate work. Although
Johnson once asked him to assign work in the body shop, Hanshaw refused
because no pay increase was involved. Based on this undisputed testimony, I
find that Hanshaw possessed none of the indicia of supervisory status set
forth in Sec. 2(1 ) of the Act. and accordingly. I find no merit in Respon-
dent's contention that he was a supervisor.
w A careful reading of these letters and of employee Walter Hypes' testi-
mony as to what was said in President Johnson's meetings with employees.
reveals no unlawful statements in any of them.
H Except where specifically discussed. President Johnson failed to contro-
vert the testimony of the General Counsel's witnesses in support of these
allegations ther than to deny in general terms the allegations. The facts are
therefore based on such unrefuted testimion
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Horrocks, a main garage mechanic, testified that
Johnson called him into the office the day after the first
union meeting, and
... he told me he had received a call from one of his
close friends that eight of his men was at a union meet-
ing the night before and he asked me if I knowed who
it was, or was there myself, and I made no reply. And
he said the he couldn't understand why we'd want a
union because he said that he didn't need no outsiders
telling him how to run his own shop or his business
I find, within this context, that Johnson coercively inter-
rogated these employees about their union activities and the
activities of other employees. I also find Johnson's state-
ment to Dempsey (in the conversation about the advent of
the Union), that Johnson was just looking for an excuse to
retire, was an implied threat of plant closure if the employ-
ees selected the Union as their bargaining representative. I
conclude that these remarks constituted violations of Sec-
tion 8(a)(l) of the Act.
Walter Hypes, a mechanic in the main garage who signed
a union card September 27 and acted as the union observer
in the Board election December 15, testified that Johnson
called him into the office October 10. After offering Hypes
time off if he needed it because his father was in the hospi-
tal and discussing various parts and service problems,
Hypes asked Johnson his opinion of the Union,
... and he said that he didn't think that we needed the
union; we got along good without it. And he said if the
union came in he wouldn't be able to have as liberal
policy as he had, such as for instance coffee and sand-
wich break in the morning. Then after that he asked
me how I felt and I told him that I thought it would be
beneficial for both sides . .. He said that since I was
well known and everybody would talk to me. for me to
go out and ask people what their opinion was in the
shop, on the union and stuff like that, how they felt
and whatever. And I never went back to his office.'"
I find that these remarks constituted coercive interroga-
tion, importuning an employee to engage in surveillance,
and a threat of more onerous working conditions and loss
of existing benefits. I conclude that they were violative of
Section 8(a)(1).
Hoirocks testified that in a second conversation Johnson
asked him and employee Dempsey if they had heard any-
thing about the Union; they said that they had not, and as
'1 Although Johnson denied interrogating any employees on September
30. he admitted being informed of this first union meeting as found above;
the testimonies of Dempsey and Horrocks were essentially mutually corrobo-
rative as to Johnson's questioning them as soon as he heard about the meet-
ing. I therefore credit the employees. I make no unfair labor practice finding,
however. on the basis of Horrocks' further testimony to an alleged statement
by Johnson about the possibility of a pay raise. Aside from other consider-
ations, Horrocks seemed unsure as to just what Johnson said on this subject.
As no other evidence was offered in support of the allegation that Respon-
dent threatened loss of wage increases. I conclude that this allegation should
be dismissed.
It As this record is copiously supplied with credible testimony as to John-
son's interest in ascertaining the Union's progress among his employees, I do
not believe that he confined himself in this and other occasions during the
campaign to his alleged previously established custom of merely asking var-
ious employees to bring him information regarding the complaints which the
staff had about working conditions.
Johnson walked off, he told him, "Well, I can always close
it down." I find that Johnson thereby further interrogated
employees and impliedly threatened plant closure if the
Union were successful. I conclude that Section 8(aXl) was
thereby violated.
A few days later, just before the body shop was sublet,
Horrocks testified that he was eating a sandwich at 9 or 10
a.m., as all mechanics had done since Horrocks began
working there, when Johnson walked by and told him, "I
guess you know if the union goes through this will have to
be cut out because it will be all work." This was another
threat of more onerous working conditions and loss pf exist-
ing benefits of the kind made to Hypes. I conclude that it
also violated Section 8(a)(1).
Horrocks also testified that on the day the body shop was
sublet, Johnson again called him in the office, and asked
him if he had heard about the body shop. When Horrocks
indicated he had heard, Johnson told him:
Well, that's one headache I've been trying to get rid
of for a long time and I finally got rid of it.' And he
said that he thought he'd got rid of the strong ones
behind the union, and he thought he still had a couple
in his shop strong behind it and he said that if it come
to it, he could always do the service area the same
way.
I find that Johnson, in substance, told employee Hor-
rocks he had sublet the body shop because of the adherence
of body shop employees to the Union, and threatened to
sublet the service area if its employees supported the
Union. I conclude that Johnson thereby further violated
Section 8(a)(I). '4
Horrocks said Johnson called him into the office again in
early November and asked if he had heard anything about
the Union, and said, "he knowed that he still had some
strong behind it in the shop and he'd heard that [Walter]
Hypes was keeping it going strong." Johnson asked how
Horrocks felt about it and when Horrocks replied he did
not know at that point, Johnson told him,
. . some of them didn't know what they was getting
into, because they only actually had one certified man,
he said. The ones that wasn't certified, if it went in, it
could have them kicked back as mechanics helpers.s
I find this to be coercive interrogation and an implied
threat that employees would be demoted in job classifica-
tion if the union campaign were successful, and I conclude
that it was violative of Section 8(a)(l).
Walter Dempsey testified that about December 1, he was
in the office talking about work to Johnson, when Johnson
asked him. "if I felt we needed the union." I conclude that
this constituted coercive interrogation in violation of Sec-
tion 8(a)(1).
Horrocks testified that shortly before the election John-
son called him in and said:
14 Careful examination of Horrocks' testimony regarding additional btate-
ments of Johnson during this and other conversations fails to reveal a threat
not to bargain or to bargain only from scratch. I therefore recommend that
all allegations to this effect be dismissed.
'' Horrocks explained that after taking an examination a mechanic is cer-
tified by the State that "he can do a specific job, and knows the job."
1240
BOBS MOTORS, INCORPORATED
I know that [Walter] Hypes is still strong behind the
union,' he said, 'I'm pretty sure Jerry [Auxier]'s strong
for it, but I think Warren [Dempsey]'s coming around,
and I know where Johnny [Hanshew]'s head's at,' he
said, 'I think if I've got you, I've got the union
whipped.
I find this a clear attempt to ascertain Horrocks' stand on
the union question and conclude that it constituted coercive
interrogation in violation of Section 8(a)(l) as alleged in the
complaint. "
2. Joe Linkenhoker
The complaint alleges that Linkenhoker interrogated and
threatened employees. Respondent contends Linkenhoker
is not a supervisor.
All the General Counsel's witnesses testified that Linken-
hoker was the service manager and service writer; that he
was, among other things, their immediate supervisor and
they reported to him; that he assigned their work and,
along with Johnson and Suit, inspected their finished prod-
ucts and upon occasion directed them to redo the work.
They affirmed that Linkenhoker gave permission to leave
early, and it was to him they reported when absent or late.
They said he performed little mechanical work himself,
wore no uniform, and did not punch the clock as they did."
Based on the overwhelming weight of the above testi-
mony, which I credit, I find that Linkenhoker had author-
ity, in the interest of Respondent, to assign work and re-
sponsibly to direct employees, and that he was therefore a
supervisor of Respondent within the meaning of Section
2(1 1) of the Act.
George Horrocks testified, and I find, that shortly after
he signed a union card Linkenhoker asked him how he felt
about the Union. Walter Dempsey testified, and I find, that
about 2 weeks after the body shop was closed he told Lin-
kenhoker not to ask him to do any body work, "because
they got rid of the body shop here because you thought
they was the ones that started the union, but I was the one
that started it:" and Linkenhoker responded, "Well, you
may be next."" I conclude that these remarks constituted
16 Crediting Johnson rather than Dempsey (as Johnson appeared to have
the better memory and understanding here and his version seems more prob-
able), I find that Dempsey asked Johnson three times in May 1978 whether
he should honor a subpena served on him by the General Counsel to testify
in th:s proceeding. On the first occasion, Johnson telephoned his attorney
who advised that the subpena was not enforceable: Johnson relayed this
information to Dempsey, and told him, as he did on both subsequent o.ca-
sions. that it was up to Dempsey to decide whether to appear. I find that
Johnson's conduct in this respect did not constitute interference with Demp-
sey's Sec. 7 rights, The information relayed to Dempsey was not clearly
erroneous, there is no indication that Johnson intended to or did discourage
Dempsey from honoring the subpena, and Dempsey did, in fact. appear and
testify at the hearing.
"1 I cannot believe Johnson's testimony that Linkenhoker was only a ser-
vice writer, and that all of Linkenhoker's work assignments were cut-and-
dried based on Johnson's and Sult's prior qualification of employees for
certain types of work or made only at their direction. Such a method of
operation seems impractical in the circumstances. It is clear. as all witnesses
testified, that Johnson at one time announced that Linkenhoker had author-
it) to hire and fire But that authority was soon taken away as he never
exercised it. That Linkenhoker voted without challenge in the election is not
determinative of his supervisory status herein
" This testimony is undisputed, as inkenhoker did not take the witness
stand.
coercive interrogation and a threat of discharge for union
activity and that Respondent thereby further violated Sec-
tion 8(a)(l) of the Act.
C. Section 8(a)(3) Violations
The complaint alleges that Respondent terminated Leroy
Hanshaw, Dennis Butner, and Thomas Bibb on October 24,
1977, because of their union activity. Respondent contends,
and President Johnson testified, that the subleasing of the
body shop and the termination of these employees were in
no way motivated by the employees' union activities.
President Johnson did not explain or justify his sublease
of the body shop and termination of these three employees
other than by asserting that he started looking for a sub-
leasee 3 months before the advent of the Union, and that
his conduct was in no way motivated by the union cam-
paign.
As indicated, Coffey testified that Johnson told him he
was making no money in the body shop, and employee
George Horrocks testified that on one occasion before the
union drive started Johnson told him he had gone "in the
hole on a couple of things . . . across the river." On the
other hand, Johnson told the body shop employees shortly
before Coffey took over that he was going to sublease the
shop because it was too much work for Joe Linkenhoker. It
is clear, therefore, that shifting reasons were given out for
Respondent's action.
Moreover, although Johnson did discuss the possibility of
subleasing with Backus and with Coffey before the advent
of the Union, the record shows that within little more than
2 weeks after learning of the union campaign among his
employees, Johnson dropped his rental substantially from
$400 to $300 per month. In addition, Johnson immediately
launched a campaign to defeat the Union which included
coercive interrogation, threats of more onerous working
conditions, loss of benefits, demotion, and plant closure if
the employees opted for union representation, climaxing in
Johnson's admission to employee Horrocks that he had
sublet the body shop because of the adherence of its em-
ployees to the Union and Johnson's and Linkenhoker's
threats to sublet additional work and terminate more em-
ployees for the same reason.
The evidence summarized above plainly establishes, and
I find, that Respondent's sublease of the body shop and
termination of its employees was motivated. at least in part.
by its open hostility towards the Union and its intention to
keep the Union out of the plant. In view of the close prox-
imity of the body shop to Respondent's main operations in
the same small town, the same immediate supervision,
Johnson's admission, and his and Linkenhoker's threats in
connection therewith, I further find that the subleasing of
the body shop was intended to, and had the foreseeable
effect of. chilling the union activities of Respondent's re-
maining employees. I conclude that Respondent violated
Section 8(a)(3) of the Act by terminating Leroy Hanshaw,
Dennis Butner. and Thomas Bibb on or about October 24.
1977.9
"9 Sen-r'-Srores, Inc, 225 NLRB 37 (1976). George .ithograph Coravpan,
204 NLRB 431 ( 1973); Krebs and King T,,vota. Inc. 197 NLRB 462 (1975).
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. ('HAILENGED BAILOTS
Having found that Leroy Hanshaw, Dennis Butner, and
Thomas Bibb were unlawfully discharged, it follows that
the challenge to the ballots cast by them in the December
15, 1977, Board election in Case 9-RC 12257 is overruled.
V. REMEDY
Having found that Respondent, Bobs Motors, engaged in
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act, I recommend that it be ordered to cease and
desist therefrom, and, in view of the nature thereof, from
any interference with the rights of its employees guaranteed
by Section 7 of the Act, and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(3)
and (I) by terminating Leroy Hanshaw, Dennis Butner,
and Thomas Bibb, I recommend that it offer them immedi-
ate, full, and unconditional reinstatement to their former
jobs or, if their jobs no longer exist, to substantially equiv-
alent jobs, without prejudice to their seniority or other
rights and privileges, curtailing to the extent necessary its
existing practice of contracting out some of its vehicle re-
pair work and resuming the performance of such work to
the extent necessary to effectuate the reinstatement of the
foregoing three employees as may desire reinstatement.20
Respondent will also make these three employees whole for
any loss of earnings suffered by reason of the discrimination
against them in the manner described in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest as prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977). 2
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2 2
The Respondent, Bobs Motors, Incorporated, Gauley
Bridge, West Virginia, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in Local Lodge 2639 of
the International Association of Machinists and Aerospace
Workers, AFI. C'10, or any other labor organization, by
20 ee larper Truck Sersice, Inc 196 NLRB 262 (1972).
21 See, generally, Isis Plumbing & Heating Co, 138 NLRB 716 (1962).
2 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and Order herein shall, as provided in Sec. 102.48 of the Rules
and Regulations, be adopted by the Board and become its findings, conclu-
siuns, and Order. and all objections thereto shall be deemed waived for all
pu rposes.
terminating or otherwise discriminating against employees
in regard to hire or tenure of employment or any other term
or condition of employment.
(b) Coercively interrogating employees; importuning
them to engage in surveillance; or threatening them with
demotion, more onerous working conditions, loss of bene-
fits, subleasing the area where they work, or plant closure to
discourage union activity.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fect the policies of the Act.
(a) Offer Leroy Hanshaw, Dennis Butner, and Thomas
Bibb full, immediate, and unconditional reinstatement, cur-
tailing to the extent necessary to effectuate such reinstate-
ment its present practice of contracting out some of its vehi-
cle repair work, and make these three employees whole
with interest in the manner described in the remedy section
of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all time-
cards, payroll, socialsecurity, and personnel records and re-
ports, and all other records necessary to determine the
amount of backpay due under this Order.
(c) Post at its facility in Gauley Bridge, West Virginia,
copies of the attached notice marked "Appendix".23 Copies
of the notice, on forms provided by the Regional Director
of Region 9, shall be signed by an authorized representative
of Respondent, posted by it immediately upon receipt
thereof, and maintained for 60 consecutive days thereafter,
in conspicuous places, where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to insure
that the notices are not altered, defaced, or covered by any
other material.
Id) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTIHER ORDERED that the complaint in Case 9-
CA 11965-2 against Bill Coffey d/b/a Coffey's Body Shop
be dismissed entirely; and that the complaint in Case 9-
CA- 11965-I be dismissed insofar as it alleges violations of
the Act not found herein.
I-r IS ALSO ORDERED that the challenges to the ballots cast
by Leroy Hanshaw, Dennis Butner, and Thomas Bibb in
the election conducted by the Board in Case 9- RC 12257
on December 15, 1977, be overruled.
2 In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1242