Graneto-DatsunDownload PDFNational Labor Relations Board - Board DecisionsMay 14, 1973203 N.L.R.B. 550 (N.L.R.B. 1973) Copy Citation 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Graneto-Datsun , a Graneto Company and District No. 9, International Association of Machinists and Aero- space Workers , AFL-CIO, and Automotive, Petro- leum and Allied Industries Employees Union Local 618, Teamsters, Jointly and Jack T. Scott, and Auto- motive, Petroleum and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America . Cases 14-CA-6736, 14-CA-6740, and 14-CA-6742 May 14, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 5, 1972, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed cross-exceptions and a brief in support thereof. 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 his recommended Order to the extent consis- tent herewith. While we agree that a bargaining order should is- sue, we disagree with the Administrative Law Judge with respect to the appropriateness of the units re- quested by the Unions . We are unwilling to fragment an automotive service department into the two units the Administrative Law Judge found to be appropri- ate, but shall adhere to our established practice of finding all employees of an automotive service depart- ment to be a single appropriate unit .2 'Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C .A. 3). We have carefully examined the record and find no basis for reversing his findings. The General Counsel excepts to the Administrative Law Judge 's failure to find that statements made by Respondent 's service manager and supervisor, Tom Scott, to Respondent's employees at a meeting conducted on March 2, 1972, violated Sec. 8(a)(l) of the Act . The Administrative Law Judge made all necessary subsidiary findings based on uncontroverted evidence, but he inadvertently failed to find that such conduct violated Sec. 8 (axl). We there- fore find that such conduct violated Sec. 8 (a)(l) of the Act . However, we see no need to modify the recommended Order or notice in this respect , as such finding is only cumulative in nature. We do not reach the question of whether Respon- dent violated Section 8(a)(5) of the Act, for there has been no demand for recognition in this appropriate unit. We agree, however, with the Administrative Law Judge's findings that Respondent committed exten- sive and flagrant violations of Section 8(a)(1) and (3) of the Act. Thus, during the Unions' campaigns, in addition to numerous incidents violative of Section 8(a)(1) of the Act which involved individual employ- ees, Respondent also held several meetings with its service department employees at which threats were made, inter alia, to close the shop and discharge all the employees if the Unions came in, and promises of increased wages and benefits were made if the em- ployees would forego the Unions. Later, all the service shop employees were discharged for striking; and, after their reinstatement, two of them were discharged again, under pretextual circumstances, because of their roles of bringing in the Unions. We conclude that, in the above setting of pervasive and egregious unfair labor practices with their far- reaching coercive impact, a free choice could not be exercised by the employees in an election. We shall therefore issue a bargaining order here to remedy the extensive and flagrant violations of Section 8(a)(1) and (3)? 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 Order of the Administrative Law Judge, as herein modified, and hereby orders that Respondent, Grane- to-Datsun, a Graneto Company, Manchester, Mis- souri, its officers, agents, successors , and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order, as so modified: 1. Delete paragraph 1(d) of the Administrative Law Judge's recommended Order. 2. Substitute the following for paragraph 2(c) of the Administrative Law Judge's recommended Order: "(c) Upon request, bargain collectively with Dis- trict No. 9, International Association of Machinists 2 See W. R Shadoff, 154 NLRB 992; Austin Ford, Inc., 136 NLRB 1398: Mid Missouri Motors, 194 NLRB 505, 509. The actions of the Unions indicate their cognizance of this practice and that the appropriate unit herein is one which includes all service department employees . Thus, on March 9 the Unions petitioned for an election, request- ing that they be certified as the joint representative of a unit described as "All Service Department employees." We also note that the original charge in this case was filed by both Unions , jointly, alleging that Respondent refused to bargain with them in a unit of "all service department employees." 7 As both Unions , by actions noted in fn. 2, supra, have indicated their willingness to jointly represent the emplyees in the unit which we find appro- pnate, we shall order Respondent to bargain with both Unions as the joint representative of its employees in the unit found appropriate. 203 NLRB No. 90 GRANETO-DATSUN and Aerospace Workers, AFL-CIO, and Automotive, Petroleum and Allied Industries Employees Union, Local 618 , affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help- ers of America , jointly, as the exclusive representative of Respondent's employees in the appropriate unit with respect to rates of pay, wages , hours of employ- ment, and other terms and conditions of employment, and, if an understanding is reached with said joint representative , embody such understanding in a signed agreement." ' 3. Substitute the attached notice for the Adminis- trative Law Judge's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question any of our employees about their union activities or membership or their attitude toward District No. 9, International Association of Machinists and Aerospace Work- ers, AFL-CIO, and/or Automotive, Petroleum and Allied Industries Employees Union, Local 618 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. WE WILL NOT make threats, including threats to close our service department, in the event that any union is successful in organizing our employ- ees. WE WILL NOT make any threats of bodily harm to any of our employees in reprisal for their union activities. WE WILL NOT make promises to our employ- ees of better wages, working conditions, and oth- er conditions of employment in order to induce them to disaffiliate or disassociate themselves from any labor organization. Nor will we grant our employees any benefits for that purpose. WE WILL NOT give our employees the impres- sion that we are spying on their activities with regard to any union or any effort on their part to participate in concerted or protected activities. WE WILL NOT discharge any of our employees or withhold paychecks to discourage member- ship in any labor organization or for the purpose of reprisal against our employees for any union or concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the 551 exercise of their right to form, join, or assist or be represented by District No. 9, International As- sociation of Machinists and Aerospace Workers, AFL-CIO, and/or Automotive, Petroleum and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor orgaini- zation, to bargain collectively through represen- tatives of their own choosing, or engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activity. WE WILL offer to Franklin Cupples and Gary Emas immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make each of the foregoing employees whole for any loss of earn- ings that he may have suffered as a result of our discrimination against him. WE WILL, upon request, bargain collectively with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, and Automotive, Petroleum, and Allied Indus- tries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauf- feurs , Warehousemen and Helpers of America, jointly, as the exclusive representative of our em- ployees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such un- derstanding in a signed agreement. The appropri- ate unit is: All automobile and truck mechanics and ma- chinists, parts men, lubrication men, porters, and truck drivers, excluding salesmen , office clerical and professional employees, guards and supervisors as defined in the Act. All our employees are free to become or remain or refrain from becoming or remaining members of the Machinists or the Teamsters, as the case may be, or any other labor organization, except to the extent that this right may be affected by an agreement in con- formity with Section 8(a)(3) of the National Labor Relations Act, as amended. GRANETO-DATSUN, A GRANETO COMPANY (Employer) Dated By (Representative) (Title) 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be-defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced , or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office , 210 North 12th Boulevard , Room 448, St. Louis, Missouri 63101 , Telephone 314-622-4167. DECISION STATEMENT OF THE CASE MORTON D . FRIEDMAN , Adminstrative Law Judge: Upon a charge filed in Case 14-CA-6736 on March 9 , 1972, by District No . 9, International Association of Machinists and Aerospace Workers, AFL-CIO, hereinafter called the Ma- chinists or District 9, and Automotive , Petroleum and Al- lied Industries Employees Union , Local • 618, Teamsters, herein referred to as the Teamsters, and an amended charge in Case 14-CA-6736 filed on April 7, 1972, and a charged filed on March 14, 1972, in Case 14-CA-6740 by Jack T. Scott, an individual, and a charge filed on March 14, 1972, in Case 14-CA-6742 by the Teamsters , the Regional Direc- tor for Region 14 of the National Labor Relations Board, herein called the Board, issued a consolidated complaint on April 19, 1972, on behalf of the General Counsel of the Board against Graneto-Datsun, a Graneto Company, here- in called Graneto or the Respondent , alleging violations of Section 8(a)(l), (31 and (5) of the National Labor Relations Act, as amended (29 U.S .C. Sec. 151, et seq.), herein called the Act. In its duly filed answer , the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice a hearing in this case was held at St. Louis, Missouri, on various dates between May 22, 1972, and June 6 , 1972. All parties were represented and were afforded full opportunity to be heard, to introduce relevent evidence, to present oral argument , and to file briefs. Oral agrument was waived . Briefs were filed by Counsel for the General Counsel and the Respondent . Upon consideration of the entire record herein , and upon my observation of each witness as he appeared before me , I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, a Missouri corporation which is en- gaged in the City of Manchester , Missouri , in the retail sale of new and used automobiles , automobile parts, and service, derived during the calendar year ending December 31, 1971, gross revenues in excess of $500,000 from the retail sale of new and used automobiles , automobile parts, and service. Additionally during the said calendar year , which period is representative of its operations , Respondent purchased and caused to be transported and delivered to its place of busi- ness in Manchester, Missouri , directly from points located outside the State of Missouri automobiles and automobile parts valued in excess of $50,000. It is admitted , and I find, that the Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is admitted, and I find, that the Teamsters is a labor organization within the meaning of Section 2(5) of the Act. The Respondent denies that District 9 of the Machinists is a labor orgainization. The record reveals I that District 9 organizes employees within the jurisdiction of the Machin- ists in the State of Missouri, negotiates contracts , and han- dles grievances. District 9 has subordinate local lodges, and is, in reality , the service organization for the members be- longing to the various local lodges which make up the dis- trict. The representatives of District 9 are selected in elections participated in by referendum by all members of the various lodges within the district's jurisdictional area. These representatives handle matters that pertain to those lodges within the jurisdictional area of the District 9. Additionally, introduced into evidence is a current collec- tive-bargaining agreement between District 9 and The Greater St. Louis Automobile Association, Inc., and the St. Claire-Madison Automobile Association, Inc., which sets forth the terms and working conditions of members of the various constituent lodges of Local 9 employed by the two automobile dealers associations. Accordingly, on the basis of the foregoing and upon pre- cedent 2 I find and conclude that District 9 is a labor organi- zation within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Issues As noted above, the Respondent is an automobile dealer- ship which maintains a service department for its customers. The service department employees were unorganized until some time in February 1972 when the Machinists and the Teamsters began an organizational drive among them. The details of this organizational drive and the events which followed are more fully set forth hereinafter. Thereafter the Machinists and the Teamsters made written requests for recognition and bargaining in separate units within the ser- vice department upon the Respondent. The Respondent ignored these requests. It was during this period of time that the actions complained of and which form the basis for the complaint herein were taken by supervisors of the Respon- dent. Thereafter, the Respondent's service department em- ployees went on strike and the charges herein were filed. The complaint, in substance, alleges various acts of inter- ference, coercion , and restraint consisting in the main of threats of reprisal against the employees and promises of benefit to destroy the Union's majority. It also alleges that 1 The testimony of James W. Redman , Marvin E Timmerberg , and For- rest W. Brandon All of which testimony was uncontroverted on the record. 2 District No 9, International Association of Machinists, AFL-CIO (Greater St Louis Automotive Trimmers and Upholsterers Association, Inc.), 134 NLRB 1354. GRANETO-DATSUN the Respondent unlawfully discharged the striking employ- ees and refused to pay them for work performed during the week immediately preceding the strike , in violation of Sec- tion 8(a)(3) of the Act. The complaint further alleges that the Respondent unlawfully refused to bargain with the two Unions in their respective units in violation of Section 8(a)(5) and (1) of the Act. The Respondent's answer denies the commission of any unfair labor practice and affirmatively alleges that the de- mands of the two Unions were defective in that they re- quested overlapping classifications in the units claimed to be appropriate for the purpose of collective -bargaining. Ad- ditionally, the Respondent denies that the employees were engaging in a concerted work stoppage and strike inasmuch "as the conflicting demands for recognition asserted by the two Unions constitutes a jurisdictional dispute between the two involved Unions which has no relevency to the Respondent's employment practices or to Respondent's obligations under the Act." Furthermore, in an amendment to its answer , which amendment was filed during the hear- ing herein, the Respondent denies that Tom Scott , the ser- vice manager, whom the complaint alleges committed a number of the acts of interference , coercion , and restraint, possessed the authority to speak for the Respondent, al- though the complaint admits Scott was a supervisor. Thus the issues framed by the pleadings and the conten- tions of the parties are: 1. Did admitted Supervisor Tom Scott have the authority to speak for the Respondent so as to make his acts imputa- ble to the Respondent? 2. Did Scott and other supervisors of the Respondent commit the various acts constituting interference , coercion, and restraint as alleged in the complaint? 3. Did the two Unions involved make demands for rec- ognition upon the Respondent which were cognizable under the Act? 4. Do the two Unions represent the majority of the em- ployees in the separate units claimed to be appropriate? 5. Did the Respondent unlawfully discharge the service department employees who went on strike and did the Re- spondent unlawfully withhold earned wages in reprisal for the employees' union activity? 6. Do the actions of the Respondent , in totality , consti- tute sufficient basis for a bargaining order? B. Interference, Coercion, and Restraint At the outset, it should be noted that with regard to the alleged acts of interference , coercion , and restraint, the tes- timony of the various employees involved and who were presented as witnesses by the General Counsel remained unrefuted by the Respondent except in one instance. The Respondent offered the testimony of only a single witness, its sales manager , Jack M . Smith , who was involved in only one alleged act of interference . Tom Scott , Respondent's service manager , who had been discharged by the Respon- dent shortly before the hearing herein , was not called by the Respondent nor was Joseph Graneto, the Respondent's vice president and general manager who was also involved in two instances of alleged interference. Although some of the witnesses who testified as to the alleged act were not 553 accurate in their testimony with regard to dates of events, a careful search of the record reveals no profound inconsis- tencies between their testimony on direct examination and their testimony under lengthy cross-examination which would warrant a discrediting of their direct testimony. Moreover, from my observation of these witnesses I re- ceived the impression that they were reliable witnesses. Ad- ditionally , in many instances several of the witnesses were parties to the same events and their versions of what oc- curred did not differ markedly. Accordingly, inasmuch as their testimony is unrefuted except in one instance , I credit such testimony. As hereinbefore stated, Tom Scott was the Respondent's service manager in charge of the service department. He was an admitted supervisor . The Respondent , in its amended answer, denies that Scott had authority to speak for the Respondent and contends that any act committed by Tom Scott or any statement made by him to the employees of the service department were made without the knowledge or authority of the Respondent and that such acts and state- ments cannot lawfully be imputed to the Respondent. The testimony of Respondent's only witness , Jack M . Smith, Respondent's sales manager, merely outlined the Respondent's corporate organization. He testified, in sub- stance, that Fred Graneto was the president and owner of the Respondent and was the only one who could make decisions as to the hiring of employees , the giving of wage raises, and other administrative acts . Smith further testified that Joseph Graneto was general manager of the Respon- dent on a day-to-day basis and was generally in charge of the Respondent's operations . Jack Smith was the sales man- ager of both the new and used car sales of the Respondent. In his testimony, Smith inferred that all three of the fore- going were senior to Tom Scott 's operation of the service department. However, although Smith testified that Scott could not directly hire or discharge any employee, he did admit that Scott supervised the service department employ- ees in their work and directed their activities on behalf of the Respondent. There is no testimony presented to show that the men in the service department were ever told of any limitations on Tom Scott's authority as a supervisor, nor were they ever informed that Tom Scott could not speak authoritatively for the Respondent. From the foregoing, I find and conclude that although Tom Scott might have been the lowest supervisor in the Respondent 's hierarchy , the Respondent is answerable for his actions and statements . The law is well settled , and it is unnecessary here to recite the numerous cases in which the Board and the courts have held, that employers are respon- sible for the actions of supervisors and that such actions may be imputed to the employer to the extent of finding the employer in violation of the various sections of the Act. The first incident involving Service Manager Tom Scott occurred long before the Unions began their organizational drives. Franklin D. Cupples, a mechanic, was hired on Sep- tember 22, 1971. He was interviewed several days prior thereto by Tom Scott. In this interview Scott asked Cupples if the latter was a member of a union . Cupples replied that he was, indeed, a member of the Machinists and that he held a withdrawal card. Service Manager Scott then informed Cupples that if the latter were hired and came into the 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent 's employ with the intent of joining a union or bringing a union in to the shop , Cupples would be dis- missed , and, moreover, anyone else who did so would also be dismissed . In that interview Tom Scott also told Cupples that Mr . Graneto (probably referring to Fred Graneto, pres- ident and owner) would not have a union in the shop and if need be he would close the place. The inquiry of Cupples by Tom Scott as to whether Cup- pies was a member of the Union and threats that Cupples or anyone else who engaged in union activities would be discharged and, furthermore , the inference that if Graneto had to contend with the Union he would close the shop constitute unlawful interrogation and threats in violation of Section 8 (a)(1) of the Act . I so find. Evidently , some time thereafter , Service Manager Tom Scott became disenchanted with conditions at the Respondent 's service department , especially with regard to his own income . Approximately February 3 , 4, or 5, 1972, Tom Scott engaged Cupples in a conversation . Scott asked Cupples how the latter felt about Joining the Union and how Cupples felt about the men joining the Union . Cupples reminded the service manager that the latter had told Cup- pies that Fred Graneto would not allow a union in the shop. Then Scott said "the only way you are going to get anything around here is either join together or join a union ." No one else was present at that conversation. Again , approximately on February 7 or 8, Service Man- ager Scott engaged Cupples in a second conversation. Scott again asked Cupples how the latter felt toward the men joining a union. Cupples again reminded Scott that Scott had told him that Fred Graneto would not have a union in the shop . Cupples told Scott that the latter would have to get all of the men to cooperate , otherwise there would be no sense in trying to have a union . Scott replied that if Scott would get all of the men together would Cupples be willing to go along with it. Cupples answered in.the affirmative. On February 14, Service Manager Scott again ap- proached Cupples, and told the latter he had talked to the men and that they all wanted a union . He asked Cupples if the latter would make the necessary arrangements, for a union meeting . Cupples asked Scott when the latter wanted it done and Scott answered, "Right away , if possible." 'Cup- pies thereupon called the Machinists from the shop, but the representative to whom he wanted to speak was not there. Cupples left his telephone number. Thereafter the union representative called Cupples . Service Manager Scott an- swered and called Cupples to the telephone. At that point Cupples made arrangements for a Machinists representative to meet with the employees on the next day. Although Service Manager Scott 's motivation at that point of time in interrogating employee Cupples on three different occasion as to the latters union proclivities and desires might well have been for the purpose of promoting Scott 's personal interest and not that of his employer, the Respondent , nevertheless , this interrogation constituted in- quiry into an employee 's union activities and sympathies by a representative of management and, accordingly , constitut- ed interference with employees ' Section 7 rights. It was therefore violative of Section 8(a)(1) of the Act. Before Tom Scott instructed or asked Cupples to make contact with the Machinists , he talked to various men in the shop . One such conversation occurred on either February 12 or 13 , 1972, and was with Tom Scott 's brother Jack Scott, a mechanic in the shop . Tom Scott asked Jack Scott the latter's opinion of whether they should go union . Jack Scott said that he did not necessarily want to go union , that he would rather have some kind of organization without it, if possible , but if that was the only way they could get what they wanted that he would go union . Jack Scott told Tom Scott that before he made up his mind one way or another he wanted to see a union contract . Tom Scott answered, "Well, let me know because I am supposed to let Frank Cupples know whether you guys are interested or not so we could call and have a representative come out and talk to you." In view of the fact that at the time in question , Tom Scott was the apparent promoter of a union movement among the employees in Respondent 's service department , and in view of the fact that Tom and Jack Scott were brothers and closely associated , I conclude that Service Manager Scott's interrogation of his brother , although conducted for the purpose of eliciting his brother 's opinion whether unioniza- tion would be beneficial , lacked the coercive force that is ordinarily associated with unlawful interrogation . Accord- ingly , I find that this incident did not constitute such inter- ference as would amount to a violation of Section 8(a)(1) of the Act . Accordingly , I shall order dismissed subparagraph C of paragraph 5 of the complaint herein which alleges this interrogation to be unlawful. The following day, February 15, most of the service de- partment employees met at noon hour at a nearby restau- rant with Marvin Timmerberg, a business representative of the Machinists . The details of that meeting are set forth later in this Decision . It is sufficient to note here , however, that at this meeting Timmerberg explained the process of be- coming a union member and the employees who attended signed membership applications which designated the Ma- chinists as their bargaining representative. After the meeting with Timmerberg ended , the employees returned to their work at Respondent 's service department. Several employees were thereafter almost immediately en- gaged in conversation by Service Manager Tom Scott. Thus, Service Manager Scott asked his brother Jack if all the employees had signed up to join the Machinists . Tom Scott, who evidently had had a change of heart , then told Jack Scott that they might be able to accomplish something with- out the Union ; that he had been talking to Joe Graneto and he was pretty sure that he had sold him on a percentage agreement for the men . He said it had not been decided yet how much the percentage would be but that it would be 25 or 50 percent. Jack Scott informed Tom Scott that the men had signed applications for membership but that they would not actually be members until they had paid their initiation fees. Then Tom Scott wanted to know if there was going to be a strike . Jack Scott informed his brother that there was no talk of any strike at that time . Tom Scott suggested that the men ought to try to find some other way of doing things without the Union , because Fred Graneto would close the doors before he would let a union in. During that same afternoon of February 15, Service Man- ager Scott conversed with Franklin Cupples. Scott -asked Cupples what had happened at the meeting and what was ORANETO-DATSUN involved. He also asked Cupples what Tom Scott 's chances of joining the Union as a working foreman were . Tom Scott had indicated that he wanted to sign a card . Tom Scott further asked Cupples what the chances were of getting a union in and what Cupples thought personally. Cupples told Tom Scott that the men had all held together so far and that they would probably get the Union in and that Scott's chances of coming in as a working foreman were good. Stanley Pinski, an employee-mechanic who attended the meeting, was also questioned that afternoon by Tom Scott. The service manager asked Pinski what the men had dis- cussed at the meeting with the Machinists representative. Scott said that he would like to know what the Union of- fered the men . Tom Scott further wanted to know what the employees and the union representative did down there beside talk . In connection with this Tom Scott asked Pinski if the employees had signed union cards. Pinski told Tom Scott , in answer to Scott's questioning, that the men had all listened and asked questions and that they thought the Union was a good idea; that thereafter they took a vote and decided that they would go with the Union . Thereafter, Pinski told Scott , the men signed cards. Scott then stated that it was "kind of stupid" for the men to have signed at that time and that they should have waited and talked the matter over some more. In the light of the threat to his brother to the effect that Fred Graneto would close the doors before he would let a union come in, and in light of his comment to Pinski that the men were stupid to sign union cards at that time, it is clear that the questioning by Service Manager Scott of Jack Scott, Cupples, and Pinski was coercive and constituted unlawful interrogation within themeaningof Section 8(a)(1) of the Act. Furthermore , having learned from his brother that the men had signed union cards, it is apparent that Service Manager Scott 's statement to his brother that the men might be able to do something without the Union and that he was pretty sure that he had sold Joe Graneto on a percentage agreement with the men and that this percentage could either be 25 or 50 percent constituted a promise of benefits made to discourage union activity and was therefore viola- tive of Section 8(a)(1) of the Act. That evening after work , at approximately 6 o'clock, Ser- vice Manager Scott held a meeting with the service depart- ment employees at a nearby restaurant , The Home Plate Inn. Several of the employees who attended that meeting testified as to what occurred? From this testimony I find that the following occurred at the meeting, though not nec- essarily in the sequence given. Service Manager Scott asked the assembled employees what had happened at the meeting with the union represen- tative earlier that day. When the employees told him that they had signed union cards, Service Manager Scott then stated, in substance, that Fred Graneto had said that he would not allow a union in the shop and would close the doors and fire everyone. He then told the men that they should forget about the Union and make some kind of 3 Employees Jack Scott , Harrington, Gary Reed, and Stanley Pinski. As heretofore noted , their testimony was not refuted by the Respondent's only witness , Smith . Smith did not testify regarding these incidents. 555 agreement with the Respondent with Service Manager Scott as their representative. He also warned the employees that if they went union they would either be placed on a flat-rate basis and would not be able to make a living, or, if they were put on straight salary, they would not be able to put out enough work for the Respondent to warrant the Respondent's keeping them employed. He further discussed the percentage plan which he had related to his brother earlier that day. He further told the men that the Respon- dent knew he was having this meeting and was there to spy upon the men in order to find out what the Union had told them about wages and other matters. I find and conclude that at that meeting at the Home Plate Inn on February 15, 1972, Service Manager Tom Scott unlawfully interrogated employees regarding the benefits of union membership; unlawfully threatened that Respondent would cease operations before allowing employees union representation; by the percentage plan unlawfully promised benefits to employees; and by stating that he was there to spy upon the employees gave the impression of surveillance of employees union activities. It is clear that such activity and such statements are violative of Section 8(a)(1) of the Act and I so find. Service Manager Scott , employee Gary Reed, and em- ployee Jack Scott, upon occasion, rode together to and from the Respondent's facility. On at least two occasions between February 15 and 21 during such rides Service Manager Scott made the statement that Fred Graneto had said that he would close the doors and would fire everyone before he would allow a union in his shop. Service Manager Scott repeated this statement at several times during the working hours in the shop to various employees at the time when he was encouraging the men to take the percentage plan road instead of going with the Union. At those times he repeated that the shop would close down if the employees went union 4 Accordingly, I find that these statements made to Reed and to other employees including Jack Scott constituted threats or reprisal against the employees for their union activity and adherence and therefore were violative of Sec- tion 8(a)(1) of the Act. Sales Manager Smith testified that Respondent's wage review policy sets the dates for wage review after the first 90 days after an employee is hired, after the first 9 months from the employee's date of hire, after the first 15 months from the date of hire and thereafter, annually. Respondent's employees' records show that this is so inasmuch as in the case of each individual involved herein, there were dates set up for 3 months, 9 months, and 15 months, from the starting date of each individual. However the Respondent's records further show that this wage review policy was more or less ignored. On February 24, 1972, shortly after Service Manager Tom Scott began his activities to discourage union activity as heretofore found, he approached employees Jack Scott, Franklin Cupples, and Stanley Pinski, and informed them Although there was some discrepancy regarding dates between the testi- mony of Reed and Jack Scott as to when and where these statements were made, the testimony was not controverted by any Respondent witness and f therefore conclude that the statements were made somewhere between the dates of February 15 and 21 or 22. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they had received a 5-1/2 percent wage increase. In the case of Jack Scott the 3-month, 9-month, and 15-month review dates were in no way related to February 24, 1972, inasmuch as Jack Scott was hired on July 12, 1971. In the case of Pinski there was possibly some relationship inas- much as his 9-month review date was January 22, 1972. However, it was a full month thereafter that his wage in- crease was announced. In the case of Frank Cupples his 3-month period for review was December 22, 1971, and his next review was not due until June 22, 1972. Accordingly, I conclude that the date of February 24, 1972, was basically not related to the review dates of these three employees. Additionally, as mentioned above, by February 24, Tom Scott had embarked on his antiunion campaign. Moreover, I note that the Machinists letter to the Respondent request- ing recognition for the mechanics and other employees is dated February 17, 1972, a Thursday, and that the Respondent's records show that the book date of the raises of these 3 individuals was February 21. From this it can be inferred the Respondent had received the Machinists' de- mands by the time it granted the wage increases. Nor does there seem to be a relationship between the date the wage raises for these three employees were announced and the end of phase I of the Government's Wage and Price Control policy and the beginning of phase II which permitted, ba- sically, a 5-1/2 percent increase in wage increases. This conclusion is reached because phase II began on November 14, 1971, and the wage increase involved herein were not announced until some 3 months later. Because the Respondent did not offer any evidence, aside from setting forth its normally ignored wage review policy, and because the wage increases were given after Tom Scott, the service manager, began his antiunion activities and the Respondent received the Machinists' request for bargain- ing, I find and conclude that Respondent, through Service Manager Scott, granted benefits to these three employees in order to discourage employee union activity in violation of Section 8(a)(1) of the Act. On February 22, another meeting was called by Service Manager Scott at the Home Plate Inn. Several employees testified as to what occurred at that meeting.' Service Man- ager Scott announced that he had been discussing a percent- age plan with Joe Graneto. Scott told the employees that the plan would call for either 25 or 50 percent of anything they made over double their wages. Thus if a man's salary was $100 a week and he performed $200 worth of labor per week for the Respondent, he would receive a percentage of either 25 or 50 percent of anything over that $200. He further explained to the men that if they joined the Machinists all of the men would be put on a flat rate and that they could never make it. Tom Scott then said that as a result they would end up being fired or laid off because they could not make the flat rate. Scott further stated that he would try to contact Fred Graneto the next day and talk to him about the plan. All the employees present agreed that the plan seemed like a good one and that Service Manager Scott should talk to Fred Graneto about it Service Manager Scott explained, 5 Employees Harrington, Reed, and Emas. As noted above the testimony of these employees is wholly uncontradicted in the record when he opened the meeting, that the Respondent had re- ceived a letter from "the Union" and that is why the plan was being offered. However, the two porters, Kelly and Hutch, and Emas, the partsman, spoke up against the plan because they did not perform mechanical work. Upon that protest, Service Manager Scott told Emas that if the latter were not quiet he would not be going to work the following day.6 From the foregoing I find that Service Manager Scott at that meeting threatened employees that they would be as- signed additional work in a union shop which would result in their being laid off or discharged, and also threatened employee Emas that he had better be quiet if he did not wish to be fired. Service Manager Scott also promised that the Respondent would institute a new plan if the employees abandoned the Union. These statements constitute interfer- ence, coercion, and restraint in violation of Section 8(a)(1) of the Act.' On February 23, at approximately 1:15 p.m., in the Respondent's service area, Joe Graneto and Service Manag- er Scott held a meeting with employees Cupples, Pinski, Harrington, Reed, Emas, Hutch, Kelly, and Jack Scott. Joe Graneto asked each man individually to tell him what his trouble was. The men were reluctant to speak up. Em- ployee Harrington finally stated that he was not having any trouble with money, as he thought his salary was equitable, but he thought the other men were unhappy about the amount of pay they were receiving. Jack Scott finally spoke up and said that the biggest problem the men were having was that they were not getting enough money and were not getting their raises at the times they were supposed to get them. Joe Graneto then asked the men assembled if Service Manager Scott had spoken to them about payment on a percentage basis. At that point, Tom Scott said that he had mentioned it but he had only outlined it and had not given details. Joe Graneto then proceeded to give the men some of the details of a proposed percentage plan. He said the men would get a guaranteed weekly pay as a base. If the Respon- dent made enough on a man's labor equal to double a man's base pay, then the men would receive a percentage of ev- erything over double the base pay of either 25 or 50 percent. He explained that if a man was making a $100 a week and that the Respondent could show that it made over $200 a week on labor for that man he would receive a percentage of everything over $200: Graneto further explained the per- centage would be either 25 or 50 percent. Joe Graneto then went on to explain that as far as the parts men, the lube men, and the porters were concerned, something would have to be worked out because they were 6 Reed testified that it was at that meeting of February 22 that Service Manager Scott told the men that the Respondent 's officers and officials knew he was there at the meeting and that he had come for the company as a spy to find out what he could about the union activities of the men However, because this particular statement by Service Manager Scott seems to have occurred at an earlier meeting , I find Reed's memory as to the dates when Scott made the statement not to be too dependable and do not find that at that meeting Scott made this statement alleged by Reed to have been made by him I do not find that other allegations contained in subparagraph I of para- graph 2 of the complaint have been proven by the testimony offered by the General Counsel and accordingly I shall order dismissed that portion of the paragraph not so proven GRANETO-DATSUN 557 in a separate unit . However , nothing specific was decided upon and time ran out . It was time for the men to return to their work. Joe Graneto agreed to have another meeting with the men at 6 o'clock on that evening . However , the later meeting was called off . Service Manager Scott explained that Joe Grane- to had been in contact with the Respondent 's attorney and had been told to stay clear of any meeting where he had to make a decision . The attorney said that if there was going to be any more meetings pertaining to wages such a meeting would have to be held with Fred Graneto . It should be noted that the word "union" or the name of any union was not mentioned at this meeting by either Joe Graneto of Service Manager Scott. Although counsel for the General Counsel alleges and contends that in asking the men at that particular time what was bothering them , in view of all of the surrounding cir- cumstances Joe Graneto was interrogating the employees concerning their union activities and sympathies , I do not find this to be true . Although the Machinists letter request- ing recognition could well have been received by Joe Grane- to by that time , there was nothing in the conversation which inquired into the men 's union activities or sympathies. I therefore do not find that the interrogation by Joe Graneto of the men at this meeting was coercive and unlawful. However, in view of all the circumstances , among them Tom Scott 's threats and other activities with regard to the employees in the service department and the fact that Re- spondent must have received the letter from the Machinists requesting recognition by the time of the meeting , I find and conclude that the suggestion by Joe Graneto that the men be put on a percentage basis in order to increase their earn- ings and that the nonmechanics wages be increased by some new wage plan constituted a promise of benefit to the em- ployees in order to induce them to forego their union activi- ties and sympathies . Such offer constitutes interference with the employees ' Section 7 rights and is therefore violative of Section 8(a)(l) of the Act. Later the same day Joe Graneto spoke to Kelly and Hutch , the two porters . According to Kelly , Graneto told the two porters that he was trying to work out a raise for everyone but that he did not know the details nor did he say when the raises would be put into effect . During the strike which is detailed hereunder Kelly and Hutch returned to work and at that time were given raises . The General Coun- sel contends that Joe Graneto's statements to Kelly and Hutch were promises of benefits constituting interference with employees' Section 7 rights in violation of Section 8(a)(l) of the Act . I agree and so find. On or about March 1, Jack Scott received a call from Union Representative Marvin Timmerberg, of the Machin- ists, who told Jack Scott that he had not received any re- sponse from Graneto -Datsun to the Machinists ' letter requesting recognition . Timmerberg thereupon suggested that the men meet with him at an early date. Jack Scott agreed to have the men meet with Timmerberg at 6 o'clock the following day, March 2. At approximately I I a.m. the same morning , Jack Scott told his brother , Service Manager Tom Scott, that the union meeting had been set for the next evening at 6 p.m. Jack Scott said that if there were going to be any negotiations directly between the employees and the Respondent it had to be between that time and 6 o 'clock the next evening, when the meeting with the Union was sched- uled because at that meeting a strike might be called. The following afternoon , March 2 , Tom Scott called a meeting of the employees at the Respondent 's premises which was attended by Pinski , Reed , Cupples , Harrington, Emas, Kelly, Hutch , and Jack Scott . Service Manager Scott told the assembled men "I just had a call from Fred. The first thing he said was he would close the shop before he would let the union come in." Then Tom Scott went on to say that Fred Graneto had told him that the next thing to do was to fire every man in the shop . Tom Scott then in- formed the men assembled that he had talked Fred Graneto out of this action for the time being . He told the men that the condition was that the men forget the Union. He related that Fred Graneto told him that any man that wanted to continue working for Graneto -Datsun the way things were right then could do so . He also informed the employees that Fred Graneto would be willing to have a conversation with any man , individually , who had any problem pertaining to wages , hours , benefits , and other matters, but that he would not talk to them as a group . Service Manager Scott further informed the men that Fred Graneto had told him to tell the men that any man that did not want to continue under these terms could pick up his tools and toolbox and "hit the door because he's fired." Jack Scott then asked his brother whether that meant that the men should just forget the Union and do everything that the company wanted them to do; that each man could take his chances on what ever he could get from the company, either a raise or discharge , or else just be fired anyway. Tom Scott answered that he was saying that. Whereupon Jack Scott said that that was what it boiled down to and Tom Scott agreed . However, Tom Scott added that the records would not show that the men were fired for joining the union. The records would show they were fired for ineffi- ciency. Jack Scott then reminded his brother that this would look mighty peculiar in view of the fact that some of the men had worked there satisfactorily as mechanics for a period of up to 2 years. Tom Scott answered that was what the record would show . He then warned the assembled employees that they were going to have to give their answer immediately because Fred Graneto was waiting for Tom Scott to call Graneto back . Thereupon the men caucused and agreed that they would do what the company desired but that they would go to the union meeting that night anyway to see what would happen. At the meeting on the evening of March 2 , with Represen- tative Timmerberg of the Machinists and Representative Porterfield of the Teamsters , the employees decided that Timmerberg and Porterfield should make one more attempt to contact the Respondent to seek recognition and bargain- ing. The union representatives informed the men that on the following Monday morning, March 6 , they would come to the Respondent's premises and request recognition and bar- gaining . They told the men that if this did not bring results, they would like the men to go out on strike . The employees decided unanimously to go along with that suggestion. On the morning of March 6 , about 9 a .m., Porterfield and Timmerberg approached Joe Graneto at the Respondent's automobile showroom , the details of which are herein below 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set forth . Suffice it to say, they were refused recognition and as a result called the men in the service department out to strike . Almost all of the employees of the service department complied with the strike call and walked out. Among the employees who walked out on strike that day was Stanley Pinski . Later that same night about I1 p.m. Pinski received a telephone call at his home from Service Manager Scott . Scott told Pinski that Scott had a chance to get two of the men to come back to work and that he could get their jobs back for them . Pinski asked who these men were and Service Manager Scott said that they were Tim Harrington and Pinski . Pinski asked Scott if Pinski would get anything out of it by way of a raise . Tom Scott answered that all Pinski would get was his job back . Thereupon, Pin- ski told Tom Scott that the men were out picketing for good reason and wanted more than just a job; they wanted more security . Tom Scott answered that he hated to see all the men who walked out "go down the gutter like they did." He added that he would like to notify Tim Harrington so that he could talk to Harrington also. This conversation between Service Manager Scott and employee Pinski contained a threat by Scott to Pinski of adverse action and retalihtion against the employees for having engaged in a strike and other union activities pro- tected by Section 7 of the Act . Accordingly , it constituted a violation of Section 8(a)(1) of the Act. On March 9 , while the strike and picketing still contin- ued, Pinski had a further conversation with Service Manag- er Scott , this at the restaurant known as the Home Plate Inn. Also present at the conversation was Bob Ponder, a former employee of the Respondent . Tom Scott told Pinski in the presence of Ponder that all of the employees had been fired that Monday, March 6, when they went out on strike. Pinski asked Service Manager Scott when the latter found out that the men were fired . Scott answered that he was given this information on the Friday before the strike and the information was to the effect that the employees were to be fired as of the coming Monday . Tom Scott then stated that he had it "in black and white " why the men were discharged . Scott asked Pinski if the latter would like to see this paper . When Pinski answered in the affirmative , Service Manager Scott showed Pinski a paper stating that Pinski had put in only 6 .4 hours of work out of a 40-hour work- week . Pinski then asked Scott if that meant that Pinski was incompetent and was Pinski considered incompetent so suddenly after working satisfactorily for the Respondent for a period of 10 months . Pinski also stated, referring to Har- rington , "Tim has been here for over a year and all of a sudden he is incompetent now." Tom Scott became angry and changed the subject and did not answer Pinski's ques- tion. Service Manager Scott 's statement to Pinski that the men were discharged the day they went out on strike constitutes interference , coercion, and restraint and is therefore viola- tive of Section 8(a)(1) of the Act. According to the testimony of employee Gary Emas, he joined the striking employees on March 6 , and walked the picket line usually in the mornings. Emas further testified that on the mornings of March 25 , 29, and 30 at approxi- mately 9 to 9:30 a .m. while picketing in front of and across the driveway entrance to the Respondent 's premises, auto- mobiles driven by Sales Manager Jack Smith came into the driveway without warning and in such a manner as to barely miss hitting Emas . On the third of these occasions, when Smith came to a stop , Emas asked Smith what the latter was tying to do . According to Emas he said to Smith "This is the third time you have done this, what are you trying to do kill me or something?" Smith answered "My friend , any time anybody walks back and forth across my driveway, which is my driveway and it doesn 't prove a thing to me, I am going to run them over and not hesitate a bit ." With this Emas looked at Smith and said "Do you want to go to jail or be sued or go to court?" To this statement Smith replied, "My friend , if I get sued it sure won ' t be for you because you'll be dead, if I ever hit you." Smith then continued "The most your widow would get is $2-3,000 out of it ." With that Smith entered the Respondent's premises. In testifying Smith admitted that upon one or two occa- sions while turning into the driveway of Respondent 's prem- ises he almost hit Emas. Smith also admitted that on one such occasion he had a discussion with Emas. However, Smith did not testify as to the content of this discussion. Smith, in testifying , stated that as one approached the drive- way of the Respondent the view of the driveway was ob- structed by heavy traffic and the sign of a real estate company cut off the view of a driver approaching from the right to the extent that the driver could not see until he was practically in the driveway whether anyone was standing or walking in the driveway. Because Smith in his testimony did not deny the conver- sation which occurred on March 30 , and because he did not explain or relate what occurred in that conversation, I find from my observation of both of the witnesses and from their testimony that Emas was telling the truth as to what Smith stated on that occasion . I find that Smith 's statement to Emas on March 30 was a virtual admission that Smith was seeking to frighten Emas in retaliation for Emas' picketing the Respondent 's premises. I find that the purpose of Smith 's conduct was to interfere with Emas ' protected right to engage in picketing. Accordingly , therefore, I conclude that Smith 's conduct in threatening Emas both by his verbal statement on March 30 , and his conduct in driving into the Respondent's driveway as Emas was picketing so as to frighten or threaten Emas, constituted threats of reprisal for engaging in protected activity and as such was violative of Section 8(a)(1) of the Act. ' C. The Discriminatory Discharges and Withholding of Paychecks 1. The discharges As heretofore related , most of the Respondent's service department employees went out on strike on March 6,,and participated in picketing the Respondent 's premises. Also, as found above , at the beginning of the strike, March 6, Service Manager Scott called Pinski at home and told the latter that Service Manager Scott had a chance to have two of the employees reinstated. Scott also said that he hated to see all of the men who had walked out "go down the gutter." Again , 3 days later, Service Manager Scott told Pinski that the strikers had been fired as of the day they went on strike GRANETO-DATSUN 559 and that Scott had learned this the Friday before. Addition- ally, as also found above, on March 2, before the strike action was taken, Service Manager Scott instructed the em- ployees, after stating that he had talked Fred Graneto out of firing the employees, Fred Graneto had said that the men could stay, in substance, if they "forgot the union business." The walkout and the strike were certainly overwhelming indication by the employees to the Respondent that the employees would not "forget about the union business." Finally the Respondent's own records are marked to show that employees Jack Scott, Stanley Pinski, Timothy Har- rington, Frank Cupples, Gary Reed, and Gary Emas quit as of March 6, 1972. The General Counsel contends that all of these factors must lead to the ultimate conclusion that the Respondent discharged the above-named employees because of their activities in and their sympathies for the two Charging Unions. The Respondent contends otherwise, claiming that the Respondent never discharged any of the employees. In sup- port of its contention the Respondent cites the fact that during the hearing herein, to be exact on May 24, 1972, when these employees notified the Respondent, in writing, that they agreed and offered unconditionally to return to work the Respondent immediately, on May 25, accepted unconditional individual offers to return to work and in- formed the employees to report to work within 10 days from that date. Respondent further cites the fact that employee Kelley who went out on strike returned to work within 3 or 4 days thereafter and was not discharged by the Respon- dent, nor was he refused reinstatement or work. Respondent further points to the testimony of its only witness, Sales Manager Jack Smith, to the effect that the Respondent was not aware of the activities of Service Man- ager Scott with regard to the various acts of alleged Section 8(a)(1) threats, interrogation, and other interference with the employees' Section 7 rights. If Smith is credited, this would seem to indicate that die conversations on March 6 and 9 between Service Manager Scott and employee Pinski were not necessarily true reflections of the action or a lack of action which the Respondent took after the strike. How- ever,°Smith admittedly did not take an active part in making labor relation policy for the Respondent. Nor, moreover, did he have personal knowledge of any conversations be- tween Fred Graneto, Joe Graneto, and Service Manager Scott. Moreover, the fact that Respondent noted on its re- cords that the employees "quit" as of March 6 would indi- cate that the Respondent no longer considered them employees because they went on strike. While it is true that the record does not reveal that the employees as a group or individually, with a possible excep- tion of Pinski, were ever notified formally that they were discharged, I nevertheless find and conclude that the Re- spondent did, indeed discharge the employees on March 6, 1972. I further find that this discharge was taken in retalia- tion for their union activity and to discourage union activity and it was therefore discriminatory and violative of Section 8(a)(3) and (1) of the Act. In accordance with the strikers' offer to return to work and the Respondent's acceptance of such unconditional of- fer, Jack Scott, Pinski, Harrington, Cupples, Reed, and Emas all returned to work immediately. However, although all of the other employees who were put back to work pur- suant to the foregoing offer and acceptance where placed in their former jobs, Gary Emas was not. On the first morning that Emas returned to work he was told to work in the lube rack, which he did. Furthermore, Emas removed and rotat- ed tires, drove cars to an auto top subcontractor, cleaned up and swept out several cars, and replaced a bumper on a car which took Emas approximately 4 hours. After he replaced the bumper, Emas swept the floor around the parts cage and around the staircase and other parts of the shop. Then he was assigned to clean up the parts cage, dust off the parts in the shelves, and perform cleanup work for the remainder of the day. This was not the type of work Emas had done prior to the strike and discharge. Before the walkout and the discharge on March 6, Emas was the parts man in the Respondent's service department. His job consisted of filing parts orders and taking care of ordering parts from the supplier and from various Datsun depots in the United States and Japan. He issued parts to the mechanics and, if necessary, located parts which were not in stock if needed by a mechanic. His working area was located in the parts cage completely. He did no work as a mechanic, lubeman, or porter. When Emas returned to work, there was a new parts man who performed the work Emas formerly performed. On Tuesday, May 30, Joe Graneto assigned Emas to the parts man and told him that the new parts man would give him work to do. The parts man had Emas rearrange parts and articles. Emas was also ordered by the parts man to run errands to various suppliers and to junkyards to pick up parts for cars. Before Emas had not formerly run such er- rands, at least not to the extent he did on that day. On May 30 Emas, on three different occasions, inquired of Joe Graneto as to whether Emas could take off the next day, May 31, for the purpose of taking his own car to a body shop. This was necessary because an insurance adjuster would then be able to make an assessment of damage to Emas' car which had evidently been in an accident. On each of the three occasions during that day when Emas requested this permission of Joe Graneto, Graneto neither assented to nor denied Emas' request, but merely ignored Emas com- pletely. The next day, May 31, Emas did not report for work because of the necessity of having to take his car to the body shop as stated above. However, before the beginning of the working day he called the office secretary and told her that he would not be in and the reasons therefor. This was the procedure which had been followed by Emas on other occa- sions prior to the strike and which other employees have also followed. No one had ever been reprimanded, accord- ing to Emas, for following this procedure. Additionally, Emas had been told, as had the other men, by Service Man- ager Scott that if a man could not be at work for personal reasons it was required that he call the office secretary who in turn would inform Service Manager Scott. On June 1, at the usual reporting time, Emas reported to work. He went to the parts cage and was preparing to open the cage in the absence of the other parts man when Joe Graneto told him to report to the showroom office. Joe Graneto came into the office of the showroom, had Emas sit down and said nothing further to Emas. About 15 min- 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD utes later Emas started to get up. Joe again told him to sit down and kept him waiting there for most of the morning. Finally, about 10 :45 Joe Graneto handed Emas a letter stating that Emas was discharged . The reason for the dis- charge as stated in the letter , was "for taking off work unauthorized." Sales Manager Jack Smith , the only witness for the Re- spondent, did not testify as to the reasons for Emas' dis- charge except to reiterate what was contained in the letter. It is apparent from all of the foregoing that the Respon- dent did not reinstate Emas to his former or equivalent position . Additionally , Joe Graneto 's treatment of Emas after his reinstatement was indicative of Graneto's attitude toward Emas . Joe Graneto 's refusal to answer Emas' re- quest or deny the same when Emas:asked for the day off on May 30 for the purpose of having his car attended to is further evidence of this attitude . Finally, Joe Graneto's treatment of Emas on June 1, before he gave the letter of discharge to Emas, having Emas sit in his office for several hours without saying a word to him , indicated that Joe Graneto harbored a grievance against Emas for having par- ticipated in lawful union activity . I therefore find and con- clude that Emas' absence on May 31 was seized upon by Joe Graneto as a pretextual excuse for ridding the Respondent of a union adherent and I further find that the discharge was in reprisal for Emas' union activity. This conclusion is bol- stered by the fact that Emas' testimony as to the procedure followed before the strike when taking a day off for personal reasons was not denied in any way by Respondent's only witness . Accordingly I find that the discharge of Emas on June 1 was discriminatory and violative of Section 8(aX3) and (1) of the Act .8 Franklin Cupples returned to work on May 26, 1972, in response to the Respondent 's offer of reinstatement. Cup- ples was assigned to the same type of mechanic work that he had performed before the strike and discharge. Accord- ing to Cupples' testimony , on June 1 , he was assigned to repair a sports car. To do so the car had to be placed on a rack . This rack was about 3 feet off the ground and its use required that the car be driven up a ramp onto the rack. According to Cupples, at that time there were a number of cars being worked on near the rack and he could not ap- proach the rack directly from the front in order to drive it up the ramp . However he maneuvered the rack and very carefully drove the car up the ramp. Just as he thought he was completely on the rack the two front wheels went over the side of the rack and the car landed on its frame, with the two front wheels hanging down . The rest of the car remained on the rack . Cupples testified that he and a num- ber of the men replaced the car on the rack and there was no damage to the car. Thereafter he completed the work that was assigned. Cupples further testified, and was not contradicted, that during the winter before the events herein , Bob Ponder, a former employee of the Respondent , had a similar mishap in putting a car on the rack . At that time the car was re- placed as it was in Cupples case , there was no damage to Although the discharge of Emas and , as hereafter related , of Cupples, was not alleged in the complaint and, in fact , occurred during a recess in the hearing herein , it was fully litigated Pioneer Flour Mills, 174 NLRB 1202. the car, and Ponder was neither reprimanded nor disci- plined in any way. ' Upon cross-examination Cupples admitted that on the day following the incident of the car rack he was told by Joe Graneto to push a stalled car from the driveway area into the service area. Cupples went to the car and tried to start it in the normal fashion. However, the car would not start. Joe Graneto then said to Cupples, according to Cupples "I don't think it will run Frank, we are going to have to push it in." Cupples was further asked on cross-examination whether he had been assigned to torque the head of a car and had taken about 4 hours to perform the work. Cupples denied that he had done any such work and could not remember it. Cupples further stated that such ajob would take perhaps 20 minutes to a half hour to perform, but he could not remember having performed such work on any car at the time specified by Respondent's counsel. Cupples further testified on direct that on June 2, 1972, he was given a letter of discharge by Joe Graneto. This letter informed Cupples that he was discharged for "not following orders, misuse of company time, and disregard of customer's property." Jack Smith, Respondent's only witness, and sales manag- er of the Respondent, stated that he had been one of the individuals who assisted in placing the wheels of the car, which had gone off the rack, back on to the rack. He admit- ted, in his testimony, that there was no damage to the car. The only difference between his testimony and Cupples' testimony with regard to the car was in the number of men required to lift the car up to place the front wheels back on the rack. Smith further testified that he was told that Cup- ples was discharged not only for this incident but that Joe Graneto also told Smith that Cupples was discharged be- cause he took 4 hours to torque the head of a car when the normal time was one-half hour and that Cupples had at- tempted to start a car which had a bent valve after Joe Graneto had told Cupples to push the car into the Respondent's service department. It should be noted that insofar as the alleged incident concerning the failure to torque the head of a car in the normal amount of time, the Respondent's shop records would have shown this, but were not introduced or even offered or produced at the hearing. From my observation of the witnesses on the witness stand , and because except for the incident of the car on the rack, Smith had no personal knowledge of the incidents but had merely been told about them by Joe Graneto, I do not accept Smith's version of what occurred and accept Cupples denial with regard to the alleged incident of consuming too much time in torquing the head of a car. Certainly, the person who knew most about this incident, Service Manager Scott, was not produced, nor did the Respondent offer to produce for testimony its vice president and general manag- er in charge of its facility, Joe Graneto. As noted above, neither did the Respondent produce its shop records. By reason of the foregoing, and by reason of all of the circumstances surrounding the discharge of the employees who went on strike and the reinstatement and the Respondent's apparent unwillingness to deal with the Unions I find and conclude that, although Cupples might not have been the ideal employee and may have made some GRANETO-DATSUN 561 mechanical mistakes , the three incidents or alleged inci- dents cited in Cupples' discharge and testified to by Jack Smith were seized upon by the Respondent in order to rid itself of an active union adherent. This conclusion is further strengthened by consideration of the fact that Cupples testi- fied that a former employee who had driven a car off the rack in the same manner as had Cupples had not been reprimanded in any manner. Accordingly, I find and conclude that the discharge of Cupples was discriminatory in that it was used, at least in part, for the purpose of discouraging union activity and was therefore violative of Section 8(a)(3) and (1) of the Act .9 2. The withholding of the paychecks March 6, the day the employees went out on strike, was a payday. As noted above, the men went out on strike at approximately 9:30 in the morning of that day before pay- checks were distributed. Upon a number of occasions dif- ferent employees thereafter requested their paychecks from Joe Graneto and Fred Graneto but their requests were ig- nored. Finally, on the third day of the strike Jack Scott asked Service Manager Tom Scott what had to be done by the men to obtain their paychecks. Service Manager Tom Scott informed Jack Scott that the men had to turn in their uniforms. A day or so after the strike began, employee Harrington asked Joe Graneto's secretary what had to be done by the men in order to secure their paychecks. He was told by the secretary that the men had to turn in their uniforms. Ap- proximately a week after the strike began, Harrington, in conformity with the foregoing information, turned in his uniform. With him at that time were employees Pinski and Emas who also turned in their uniforms. Although these three employees turned in their uniforms, they did not re- ceive their paychecks until the Respondent made its offer to reinstate the employees. Thus, none of the employees re- ceived their paychecks until that time. The foregoing constitutes all of the evidence pertaining to this allegation of the complaint. Yet, the Respondent in its brief maintains that it had a company policy regarding pay- ment of final paychecks. This policy is that until certain conditions are met, namely return of uniforms and compa- ny tools and execution of a receipt and release, the check would be retained and not paid to the employee. As set forth above, none of the employees were told that it was required that they turn in their tools or sign a receipt for the pay- checks. There was no testimony that any of the men knew of the company policy which the Respondent in its brief claims existed at the time of the strike. Furthermore, there 9 The General Counsel contends that a finding should be made that the employees who walked out and who were discharged on March 6, 1972, by the Respondent were unfair labor practice strikers and therefore entitled to reinstatement to their former or equivalent positions when they made uncon- ditional application to return to work on May 24, 1972 . However , inasmuch as the Respondent discharged the striking employees on March 6 , 1972, the day they walked out and began to picket the Respondent , it is unnecessary to make this determination . This is so because even assuming that the em- ployees who walked out were merely economic strikers and not unfair labor practice strikers, they were discharged before they were replaced and were therefore entitled to reinstatement to their former or equivalent positions. N.L R B v. International Van Lines, 409 U.S. 48 (1972). is no indication anywhere in the record, or in the Respondent's contentions, that any of the men who went out on strike on March 6 took with them any company tools. The only thing that was told to some of them was that they would get their checks if they turned in their uniforms. The record shows that three employees followed these in- structions and did turn in the uniforms and yet did not receive their checks. I, therefore, find and conclude that the Respondent with- held the paychecks of the employees who went on strike for the purpose of retaliation for their protected activity and for the purpose of forcing them to give up such activity. This conduct on the part of the Respondent constituted discrimi- nation in regard to a term and condition of employment, payment for work performed for the Respondent. I further find that this course of action was taken for the purpose of discouraging membership in the two labor organizations involved herein. Accordingly, I find that the Respondent, by withholding the paychecks, violated Section 8(a)(3) and (1) of the Act. D. The Refusal of the Respondent to Bargain With the Union 1. The organizational efforts, the requests for recognition and the failure of the Respondent to answer the requests As earlier set forth in this Decision, certain employees of the Respondent met with Machinists Representative Mar- vin Timmerberg. At the meeting mechanics Pinski, Harring- ton, Cupples, and Jack Scott signed union cards. Gary Reed, a lube man, also signed a card but was informed at that time that he might not be eligible for membership in the Machinists and that this matter would be straightened out at a latter date. Thus, on February 15 the four, full-time mechanics working in the Respondent's service department signed union designation cards for the Machinists. On February 21, employees Gary Emas and Gary Reed met with Business Representative Richard Porterfield of the Teamsters. As noted before, Reed is a lube man and Emas was the Respondent's parts man. Porter Joe Kelley was also scheduled to meet with Porterfield on that day but did not arrive. Emas and Reed signed designation cards for the Teamsters on that date. Emas was given a card by Por- terfield for Kelley. The next day Kelley signed a card desig- nating the Teamsters as his bargaining representative. There was one other porter in Respondent's service department at that time, a man by the name of Hutch, who neither met with the Union nor signed a designation card. On February 17, 1972, James J. Redman, Machinists offi- cial, after receiving the designation cards from Business Representative Timmerberg, wrote a letter addressed to the Respondent in which he requested recognition and bargain- ing for a unit described at length. On February 22, 1972, Carl E. Gibbs, business representative of the Teamsters, having received the union designation cards from Business Representative Porterfield signed by Emas, Reed, and Kel- ley, requested, by letter of that date, addressed to the Re- spondent, recognition and bargaining for a unit described as "parts men, lubrication men, utility men, porters and truck drivers." 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent does not deny having received those letters requesting recognition and bargaining . However, af- ter receipt of the letters , the Respondent failed to answer them or to communicate with either the Teamsters or the Machinists in any manner whatsoever . Before and after the receipt of these letters requesting recognition, the Respon- dent committed the violations of Section 8(axl) herein- above found. On March 2, 1972, not having received any reply from the Respondent, Timmerberg and Porterfield met with a num- ber of the Respondent's employees at a restaurant near the Respondent's premises and at that meeting stated that they would make a personal attempt to speak to the Respon- dent's representatives and again request recognition and explain their position . Timmerberg and Porterfield told the men that if recognition was refused , and the men agreed, they would then call a strike . The employees assembled at that meeting agreed to this arrangement. In accordance with the foregoing plan, at approximately 9 a.m. on Monday morning , March 6 , 1972, Timmerberg and Porterfield entered the premises of the Respondent, went into the salesroom , and told Joe Graneto who they were . Before they could explain their position or make any request for recognition whatsoever they were told, in so many words by Joe Graneto , that if they were not there to buy cars to get out . Thereafter, Timmerberg and Porterfield signaled the service department employees , who then went out on strike and began picketing the Respondent 's prem- ises . To date, the Respondent has not answered the requests for recognition and has continuously refused to bargain. The Respondent defends its refusal to bargain upon sev- eral gounds . The first ground claimed , that District 9 of the Machinists is not a labor orgainization , is disposed of at the outset of this Decision , above. The second ground which the Respondent proffers is that the requests for recognition de- scribed overlapping units . Therefore the Respondent could not answer the requests for recognition in that such requests constituted what to the Respondent looked like a jurisdic- tional dispute between the Teamsters and the Machinists. Respondent did not want to be caught in the middle of such dispute . The Respondent further agrees that the situation is further confused by the fact that on March 9, 1972, in Case 14-RC-6980 the two Unions herein filed a joint petition for representation of a unit described as "all service department employees." Also, on the same date , the Teamsters and the Machinists in Case 14-CA-6736 filed a joint charge in which it described the unit as "all service department em- ployees." Thus, argues the Respondent, there was never sufficient or proper demand made for bargaining in appro- priate units so that the Respondent could respond thereto. The situation , according to the Respondent, was so con- fused that the Respondent had no way of knowing for what units the two Unions were demanding recognition. Respondent also offers as a defense for its refusal to bargain the allegation that the cards of the employees were not obtained by candid representations made by the Unions' representatives and were therefore not valid au- thorization cards. It also attacks the card of Joe Kelley specifically as having been signed by him before it was filled out. In connection with the unit majority question and the unit designation question the Respondent also contends that after the cards were filled out, and at least up until the time just before the strike, the employees of the Respondent were negotiating directly with representatives of the Re- spondent and had, therefore, not in reality designated the Unions as their bargaining representatives. Lastly, the Respondent defends its refusal to bargain on the ground that approximately 2 years before the events with which the instant proceeding is concerned, the Ma- chinists set up an informational picket line at the Respon- dent's plant, and that Marvin Timmerberg was seen on that line. During the night of March 9, 1970, shots were fired by persons unknown and damaged a number of dis- play vehicles on the Respondent's property. The Respon- dent infers that Timmerberg had something to do with this incident and therefore inferentially claims that it does not have to bargain with the Unions for this reason. The foregoing defenses, contentions, and arguments of the Respondent are dealt with hereinafter seriatim. 1. The appropriate units In its letter of February 17, 1972, requesting recognition and bargaining, District 9 described the unit it was seeking as "journeymen, automobile and truck mechanics, machin- ists , electrical machinists, welders, trimmers, metalmen, fender, body painters, radiator repairmen, refrigeration, au- tomotive air conditioning mechanics, service salesmen and towermen, apprentices and working foremen." The Teamsters request for recognition and bargaining dated February 22, 1972, described the unit it was request- ing to represent as follows: "parts men, lubrication men, utility men, porters, and truckdrivers." While the unit description of the unit requested by the Machinists is lengthy and the Respondent does not and did not employ people in all of the categories stated in the unit request, it did employ automobile mechanics, truck me- chanics, and machinists. I find that the designation of other classifications is mere surplusage and not so confusing as to have left the Respondent in doubt as to which employees, by classification, the Machinists were requesting. The same conclusion is made with regard to the unit request made by the Teamsters. The Respondent did em- ploy parts men, lubrication men, porters, and a truckdriver. While it is true the Respondent did not have any such classification as utility men as such, actually the porters and the lube men did odd jobs around the service department which would normally be regarded as utility work. Thus, I find and conclude that with regard to the de- mands made by the two Unions involved, there was not such confusion or overlapping of classifications as to place the Respondent in the position of believing it was placed in the middle of a jurisdictional dispute. I therefore find that the Respondent's contention in this respect is without merit. However, the Respondent contends that confusion was further injected into the situation by the filing of the repre- sentation petition jointly by the two Unions, requesting a unit of "all service department employees" and by the filing of the original charge in the instant proceeding which de- scribed the units "as all service department employees." However, an amended charge was filed in which the sepa- rate units were described and are the units described in the GRANETO-DATSUN complaint herein . The Respondent's argument that the fil- ing of the petition in the original charge in this proceeding served to confuse the Respondent so that it did not know which units the Unions were requesting is without legal ground . Both the charge and the petition are not formal pleadings but are used only for the purpose of instituting proceedings and investigation and are subject to amendment as a matter of right.10 Accordingly, the filing of the petition and the charge cannot be construed as a waiver by either of the Unions of their continuing demand to represent the employees in sepa- rate units, in accordance with their original written de- mands. With regard to the basic appropriateness of the units requested, introduced into evidence were contracts between the Machinists and The Greater St. Louis Automobile Asso- ciation, Inc. and St . Claire-Madision Automotive Associa- tion, Inc., which indicate that the area practice for units in automobile sales and service agencies consists of the classi- fications described in the Machinists request for recogni- tion . Thus, it is established , that in the St. Louis area the Machinists have historically represented employees in just such units . This conclusion is further bolstered by the testi- mony, uncontradicted , of the Machinists representatives to this effect. Likewise, introduced into evidence is a current agreement between the Greater St. Louis Automotive Association, Inc. and the Teamsters which describes units with the associa- tion members much as described in the unit demand of the Teamsters February 22 request for recognition . Thus, I find, that , historically, the Teamsters in the St. Louis area have represented employees in the categories described in its re- quest for recognition. Thus I find that the following unit claimed by the Ma- chinists is a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All automobile truck mechanics and machinists ex- cluding parts men, lubrication men, porters, truckdriv- ers, salesmen , office clerical and professional employ- ees, guards and supervisors as defined in the Act. I further find that the following unit claimed by the Teamsters is a unit approprate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act: All parts men, lubrication men, and truckdrivers ex- cluding automobile and truck mechanics and machin- ists, salesmen, office clerical and professional employ- ees, guards and supervisors as defined in the Act. 2. The majority status of the respective Unions At the time of the request for recognition made by the Machinists, the Respondent had four employees in the clas- sification covered by the Machinists unit description. All of these employees were mechanics and all of them signed cards entitled "Membership Application for the Machin- 'o N LR.B v. Fant Milling Company, 360 U .S. 301; Rhode Island, Inc., 132 NLRB 1534. 563 ists" on February 15, 1972. These employees are Jack T. Scott, Franklin D. Cupples, Timothy J. Harrington, and Stanley W. Pinski . All of these employees testified that they had signed the cards, that they had read them, and that they knew what they were signing at the time they signed them. The cards , in addition to being applications for membership in the Machinists, also clearly state on the face thereof "you are hereby authorized to act as my representative for collec- tive bargaining." Jack Scott testified, without contradiction, that Timmer- berg told him before he signed the application for member- ship that it was an application for membership in the Machinists and that it entitled the Machinists to bargain for the employees and that it could be used in an NLRB elec- tion later on. The Respondent did not adduce any affirma- tive proof that the employees were told anything before signing the cards which would constitute misrepresentation or coercion . Accordingly, I find and conclude that the cards are proper designations of the Union by the four individu- als, above named , of the Machinists as their bargaining representative. The Respondent claims , however, that the employees did not really intend when they signed the cards to have the Unions represent them but were merely applying for mem- bership and that they were undecided at the time whether to "go union." Respondent cites in support -of this the testi- mony to the effect that after signing the union cards, in their conversations with Service Manager Scott and with Vice President and General Manager Joe Graneto , the men were still bargaining for themselves and that at the earliest, the Unions did not represent them until shortly before the strike when, on February 2, at the meeting with Timmerberg and Porterfield it was announced that Timmerberg and Por- terfield would again request recognition and, if refused, would call a strike. This contention is without merit. The mere fact that the employees bargained directly for a period of time with the Respondent 's representatives was no more than they were entitled to do under the Act even though represented by a labor orgainization . It should be noted that none of the employees revoked their cards at any time and fully supported the union movement when the strike was called. Respondent further apparently contends that the cards were tainted because the initiative for the union movement came from Service Manager Tom Scott, a supervisor. How- ever, Scott took no part in any union meeting and further- more , did not induce the employees to designate the Machinists or the Teamsters as their bargaining representa- tives nor did he solicit the signing of the cards. Under these circumstances the cards cannot be held to have been taint- ed.11 Respondent also employs , from time to time, an air con- ditioning mechanic who works in the evenings only. There is no showing in the record to support a finding that this individual is a regular part-time employee . Accordingly, he is not included in the unit. Thus, it is apparent that on February 15 and at all times thereafter the Machinists enjoyed majority status and repre- sented all of the four employees in the unit hereinabove 11 See Juniata Packing Company, 182 NLRB 934, 935. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found to be appropriate for the purposes of collective bar- gaining by the Machinists. I further find that at all times since February 15, 1972, and continuing to date, District 9 has been the representative for the purposes of collective bargaining of the employees in the aforesaid unit and is the exclusive bargaining representative of all the employees in said unit for the purposes of collective bargaining with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Within the framework of the unit hereinabove found to be appropriate for representation by the Teamsters the Re- spondent employs James Hutch and Joe Kelley, porters, Gary Emas, parts man, Gary Reed, lubrication man. There is also another employee in the Respondent's employ, Al Landreth, an over-the-road truckdriver whose sole duty is to pick up the new automobiles which the Respondent sells at the ports of debarkation such as New Orleans, Louisiana, and truck these new cars to the Respondent 's place of busi- ness. His contact with the Respondent 's other employees is minimal at best. The Teamsters is not affirmatively seeking to represent this over-the-road truckdriver as part of its service department unit . Accordingly, he is excluded be- cause it is not shown that he is under the same supervision as the other service department employees, his contact with them is minimal and on the evidence presented by Respon- dent he does not have any significant community of interest with the porters, parts man, and lube man who constitute the unit sought by the Teamsters. Therefore it is found that the unit sought by the Team- sters, as hereinabove set forth, consists of four employees and of these four employees three signed application cards. Emas and Reed signed application cards for membership in the Teamsters on February 21, 1972. This card also contains words as follows "and designate it as my representative for purposes of collective bargaining, hereby revoking any con- trary designation." As in the case of the Machinists, Por- terfield, the business representative of the Teamsters, made no inaccurate representation nor did he induce the employ- ees to sign cards in a fraudulent or coercive manner. These employees testified they signed the card voluntarily and knew what they were signing. Although Reed had also signed a card designating the Machinists as his bargaining representative, it should be noted that at that time he was informed by Machinists Representative Timmerberg that his status was not quite clear and that there was a good chance he would have to join the Teamsters, rather than the Machinists . Inasmuch as Reed's primary assignment was lubricating cars and inasmuch as he only helped mechanics infrequently, he is properly in the unit represented by the Teamsters. Moreover, the card he signed specifically states that he revokes any contrary designation. Accordingly, I find that Emas and Reed designated the Teamsters Union as their bargaining representative when they signed their applications for membership in the Team- sters. On February 22, 1972, Joe Kelly signed an application for membership in the Teamsters similar to that signed the day before by Emas and Reed. However, Kelley signed the card in blank after discussing the purpose thereof with Emas who gave him the card. Both Kelley and Emas testified that Kelley knew the purpose of the card, Kelley having been a member of a number of unions previously and at one time having been a member of the Teamsters. Kelley gave Emas the information necessary for Emas to fill out his card be- cause Kelley is unschooled and obviously had difficulty in filling out the card by himself. Thereafter, Emas immedi- ately filled out the card at Kelley's direction although not in Kelley's presence and turned the card over to the Team- sters Representative Porterfield. Although Kelley did not read his card, he obviously, from the testimony, understood what the card was for and signed it after his conversation with Emas. I therefore conclude and find that Kelley by signing the card under the circumstances designated the Teamsters as his bargaining representative and that, there- fore, Kelley's card should be counted.12 Although Kelley went out on strike on March 6 with the rest of the employ- ees, he returned to work 2 days later. His abandonment of the strike is not construed as withdrawal of his authoriza- tion of the Teamsters as his representative because he took no steps whatever to revoke his card.13 Nor did he testify at the hearing that he did not desire the Teamsters to represent him. By reason of all of the foregoing, I find that since Febru- ary 22, 1972, the Teamsters have represented a majority of three out of the four employees in the unit which is claimed and which is hereinabove found to be appropriate for the purpose of collective bargaining. I further find that these employees designated and selected the Teamsters as their representative for purposes of collective bargaining with the Respondent and is now the exclusive representative of all such employees in the said unit. The Respondent makes one further argument with regard to the cards signed by the employees and the majority status of the two unions involved. The Respondent claims that the unions do not represent the employees because at the time of the hearing there was no indication that the employees had been accepted into membership in either of the Unions. The Board has found that this does not in any way invali- date the delegation of authority appearing on the face of the cards.14 3. Concluding findings as to the refusal to bargain It has heretofore been found that the Respondent has engaged in numerous unfair labor practices in violation of the Act. The conduct of both Service Manager Tom Scott and Vice President and General Manager Joe Graneto dem- onstrate that the Respondent, upon learning of the pending unionization of its employees, set out on a course of conduct to prevent representation of its employees by the two Unions involved herein. This attitude of the Respondent was fur- ther demonstrated by the discriminatory discharges of em- ployees Emas and Cupples in violation of Section 8(a)(3) of the Act. Respondent further demonstrated its antiunion motivation when Joe Graneto refused to even talk to the union representatives when they appeared at the Respondent's premises on March 6. Because both the Ma- chinists and the Teamsters possessed majority status in their 12 j. P. Stevens, & Co, Inc. Gultsian Division, 179 NLRB 254, 269. 13 Easton Packing Company, 180 NLRB 1092. 14 Tower Enterprises, Inc, d/b/a Tower Records, 182 NLRB 382. GRANETO-DATSUN respective separate appropriate units, this conduct on the part of the Respondent heretofore recited indicated its bad faith in refusing to recognize and bargain with the Unions in accordance with their requests for bargaining. Accord- ingly, I find and conclude that the Respondent has failed and refused to bargain with the Unions in violation of Sec- tion 8(a)(5) and (1) of the Act.15 Moreover, this conduct is sufficient upon which to base a conclusion that the holding of any fair election has been rendered impossible as a means of determining the employees desires for representation.16 By reason of all of the foregoing, I find that a bargaining order is warranted. There remains one final contention of the Respondent requiring disposition. As noted heretofore the Respondent inferentially contends that it is not obliged to bargain with the Machinists by reason of the damage to its property caused at a time 2 years before the events herein when the Machinists were conducting an informational picket line at the Respondent's premises and when Timmerberg appeared on the said picket line. I find this contention to be without merit. The evidence with regard to this matter does not show that either Timmerberg or any other representative of the Machinists was responsible for bullet holes found in the Respondent's automobiles. Therefore, on this basis alone, there is no merit to the Respondent's contention, aside from any other reasons why the Respondent's argument in this respect cannot be sustained. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found, as set forth above, that the Respondent has engaged in certain unfair labor practices, it will be rec- ommended that it cease and desist therefrom and take cer- tain affirmative action, set forth below, designed to effectuate the policies of the Act. It having been found that the Respondent by threats, interrogation, and promises of benefits interfered with, re- strained, and coerced employees in violation of Section 8(a)(1) of the Act, I shall recommend that the Respondent cease and desist therefrom. It having been found that the Respondent discriminatorily discharged its employees, and then having reinstated them and having failed in reinstating employee Gary Emas to his former or substantially equiva- lent position, and having then discharged discriminatorily the said Franklin Cupples and Gary Emas, I shall recom- mend that Respondent offer Cupples and Emas immediate 15 Merritt Motor Company, 181 NLRB 1099; Bauman Chevrolet, Inc, 173 NLRB 474. 16 N.L.R.B. v. Gissel Packing Company, 395 U.S. 575. 565 and full reinstatement to their former or substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges. In addition, I shall recommend that the Respondent make Cupples and Emas whole for any loss of earnings they may have suffered by reason of the discri- mination against them by payment to each of them a sum of money equal to that which they would normally have earned from the date of their discharge, less net earnings during said period. Backpay shall be computed with interest on a quarterly basis in the manner described by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and Isis Plumbing & Heating Co., 138 NLRB 716. Inasmuch as the employees were on strike at the time of the discharge, I shall not order backpay for these employees during the period from March 6, 1972, until their offer unconditionally to return to work on May 24, 1972. Inasmuch as on that date the employees were reinstated to their former jobs with the exception of Emas and inasmuch as their salaries were the same as that prior to the strike, there will not be ordered any backpay for that period. In view of the nature of the unfair labor practices herein found, including discrimination, which goes to the very heart of the Act, 7 there exists the danger of commission by the Respondent of other unfair labor practices proscribed by the Act. Accordingly, I shall recommend that Respon- dent be directed to cease and desist from in any other man- ner infringing upon the rights guaranteed in Section 7 of the Act. Having found that Respondent has unlawfully refused to bargain with the Unions in good faith and has thereby violated Section 8(a)(5) of the Act, I shall recommend that the Respondent cease and desist from refusing to so bar- gain, and shall further recommend that the Respondent bargain, upon request, with each of the Unions for their separate units and, if understandings are reached, embody such understandings in signed agreements. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Graneto-Datsun, a Graneto Compa- ny, is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, and Automotive, Pe- troleum and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8(a)(1) of the Act. 4. By discriminatorily discharging its employees who went on strike and by discriminatorily discharging thereaf- ter employees Franklin Cupples and Gary Emas, the Re- 17 N L R B v Entwistle Mfg Co., 120 F.2d 532, 536 (C A 4). 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent has violated Section 8 (a)(3) and (1) of the Act. 5. By discriminatorily withholding the paychecks of em- ployees who went on strike, the Respondent violated Sec- tion 8(aX3) and (1) of the Act. 6. All automobile and truck mechanics and machinists excluding parts men, lubrication men, porters , truckdrivers, salesmen , office clerical and professional employees, guards and supervisors as defined in the Act constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 7. At all times since Februrary 15, 1972, District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, has been the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other terms and conditons of em- ployment. 8. All parts men, lubrication men, porters , and truckdriv- ers, excluding automobile and truck mechanics and ma- chinists, salesmen , office clerical and professional employ- ees, guards and supervisors , as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 9. Since on or about February 22, 1972, Automotive, Petroleum , and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, has been the exclusive representative of all the employees in the aforesaid unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. 10. By refusing since February 17, 1972, and February 22, 1972, respectively, and thereafter, to bargain collectively with the aforesaid labor organizations as representatives of the employees in their respective units, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 11. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record , and pursuant to Section 10(b) of the Act, I hereby issue the following recommended:'s ORDER Respondent, Graneto-Datsun, a Graneto Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union ac- tivities and their attitude toward the Union , threatening employees with reprisals including threats to close the ser- 11 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. vice department if the employees select a union or unions to become their bargaining representatives, threatening em- ployees with physical harm in reprisal for their union activi- ties, promising the employees benefits to induce them to abandon their adherence to the Unions and by granting employees benefits for the same purpose, and by giving employees the impression of surveillance of the employees' union activities. (b) Discouraging membership in District No. 9, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, and/or Automotive, Petroleum, and Allied In- dustries Employees Union, Local 618, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or any other labor organization , by discharging any employee for engaging in protected union or concerted activity, by discriminating against employees in any other manner including withhold- ing of paychecks in regard to their hire and tenure of em- ployment, or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to form, join, assist, or be represented by District No. 9 International Association of Machinists and Aerospace Workers, AFL- CIO and/or Automotive, Petroleum and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing or to engage in other concerted activity for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any and all such activity ex- cept to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(aX3) as guaranteed in Section 7 thereof. (d) Refusing to bargain collectively with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, and Automotive, Petroleum and Al- lied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America as the exclusive repre- sentatives of its employees in the following appropriate units: As to the Machinists-All automobile and truck mechan- ics and machinists excluding parts men, lubrication men, porters, truckdrivers, salesmen , office clerical and profes- sional employees, guards and supervisors as defined in the Act. As to the Teamsters-All parts men, lubrication men, porters, and truckdrivers, excluding all automobile and truck mechanics and machinists, salesmen , office clerical and professional employees, guards and supervisors as de- fined in the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the act: (a) Offer Franklin Cupples and Gary Emas immediate and full reinstatement to their former or substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges enjoyed, and make each whole for any loss of earnings each may have suffered by reason of the GRANETO-DATSUN 567 discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request , make available to the Board or its agents , for examination and copying , all payroll records, social security payment records and reports , and all other reports necessary to analyze the amount of backpay due under this order. (c) Upon request, bargain collectively with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, and Automotive , Petroleum and Al- lied Industries Employees Union , Local 618 , affiliated with International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, as the exclusive bar- gaining representatives of the Respondent's employees in their respective units found appropriate with respect to rates of pay, wages, hours of employment , and other terms of conditions of employment, and, if understandings are reached with such unions , embody such understandings in signed agreements with each union. (d) Post at its automobile service department in Man- chester, Missouri, copies of the attached notice marked "Appendix."19 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said materials are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. 19 In the event the Board's Order is enforced by a Judgment of the 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." Copy with citationCopy as parenthetical citation