J. P. Chnapko, Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1973

202 N.L.R.B. 252 (N.L.R.B. 1973)

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. P. Chnapko , Inc. and Amalgamated Local Union
355. Case 22-CA-4638
March 7, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 13, 1972, Administrative Law Judge i Ivar
H. Peterson issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, the General Counsel
filed cross-exceptions and an answering brief, and
the Respondent filed an answering letter in lieu of an
answering brief to the cross-exceptions.
On June 23, 1972, the Board remanded the case to
the Administrative Law Judge to make further
findings concerning matters raised by the General
Counsel in his cross-exceptions, and to make certain
resolutions of credibility. On November 1, 1972, the
Administrative Law Judge issued the attached
Supplemental Decision in this proceeding. Thereaf-
ter, the Respondent filed exceptions and a supporting
brief to the Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
Administrative Law Judge's Decisions in light of the
exceptions and briefs and has decided to affirm the
rulings, findings,2 and conclusions of the Adminis-
trative Law Judge,3 but not his Conclusions of Law,
Remedy, recommended Order, or Notice to Employ-
ees, instead of which the Board substitutes the
following:
CONCLUSIONS OF LAW
4. By coercively interrogating employees and
threatening them with closure of the plant in the
event the Union came in, the Respondent violated
Section 8(a)(1) of the Act.
5. By denying overtime work to Kleinschmidt
and Szabo because of their union activity, the
Respondent has violated Section 8(a)(1) and (3) of
the Act.
6. By promising De Jewski benefits to discourage
union activity, the Respondent has violated Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain conduct prohibited by Section 8(a)(1) and (3)
of the Act, we shall order the Respondent to cease
and desist therefrom and take specific affirmative
action, as set forth below, designed to effectuate the
policies of the Act.
The Respondent having discriminatorily dis-
charged employees Harry Kleinschmidt, Atilo Szabo,
and Elsa De Jewski, we shall order it to offer them
full reinstatement (except De Jewski), with backpay
computed on a quarterly basis, plus interest at 6
percent per annum, as prescribed in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716, from the date of the
discharge to the date reinstatement is offered. In the
case of De Jewski, backpay stops as of November 10
when she was offered reinstatement and declined.
Having also found that Kleinschmidt and Szabo
had been denied overtime work for discriminatory
reasons, we shall order that they be made whole for
any losses in pay or other benefits sustained as a
result of such denial computed as provided in Isis
Plumbing & Heating Co., 138 NLRB 716.
1. The Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Harry Kleinschmidt and Atilo
Szabo on October 20, 1971, and Elsa De Jewski on
October 22, 1971, because of their support of the
Union, the Respondent engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the
Act.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
J. P. Chnapko, Inc., Newark, New Jersey, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for supporting Amalgamated Local
Union 355, or any other union.
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.
3 Respondent's request for oral argument is hereby denied as, in our
opinion, the record in this case , including the exceptions and briefs,
adequately presents the issues and positions of the parties
202 NLRB No. 39
J. P. CHNAPKO, INC. 253
(b) Coercively interrogating or threatening any
employee about union support or union activities.
(c) Denying overtime work to employees because
of their union activity.
(d) Promising benefits to employees to discourage
union activity.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Offer Harry_ Kleinschmidt and Atilo Szabo
reinstatement to their former jobs or, if the jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them and Elsa De Jewski
whole in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Make Kleinschmidt and Szabo whole for any
losses in pay sustained as a result of their denial to
work overtime as provided in "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its premises in Fairfield, New Jersey,
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the
Regional Director for Region 22, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which all parties had the
opportunity to present their evidence, it has been
decided that we, J. P. Chnapko, Inc., violated the law
and we have been ordered to post this notice. We
intend to carry out the Order of the Board, the
judgment of any court, and abide by the following:
WE WILL offer Harry Kleinschmidt and Atila
Szabo full reinstatement, and pay them and Elsa
De Jewski for the earnings they lost as a result of
their discharge, plus 6 percent interest.
WE WILL make whole Kleinschmidt and Szabo
for any losses in pay or other benefits sustained as
a result of their denial to work overtime, plus 6
percent interest.
WE WILL NOT discharge or discriminate against
any employee for supporting Amalgamated Local
Union 355, or any other union.
WE WILL NOT coercively interrogate employees
about their union activities.
WE WILL NOT threaten to discharge employees
because of their union or concerted activities.
WE WILL NOT deny overtime work to employees
because of their union activity.
WE WILL NOT promise benefits to employees to
discourage union activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, and engage in other concert-
ed activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain
from any and all such activities, except to the
extent that such right is affected by the proviso to
Section 8(a)(3) of the Act.
All of our employees are free to become and
remain members of the above-named Union, or any
other labor organization, or to refrain from doing so.
J. P. CHNAPKO, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
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-
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance with its provisions may be directed to the
Board's Office, Federal Building , 16th Floor, 970
Broad Street , Newark, New Jersey 07102, Telephone
201-645-2100.
respectively, president and general manager of the Respon-
dent.
II. THE ALLEGED UNFAIR LABOR PRACTICES
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: This case was tried
in Newark, New Jersey, on February 10, 14, 15, 16, and 17,
1972. The amended complaint was issued on December 27
on charges filed by Amalgamated Local Umon 355, herein
called the Umon, on December 10, 1971 (the original
charge was filed on October 22). Briefly stated, the
amended complaint alleged that Respondent, on October
20, closed its body shop and discharged two employees,
because of their concerted activities on behalf of the
Union, that in consequence the employees engaged in an
unfair labor practice strike beginning October 21 and
ending on November 23, that Elsa De Jewski was
terminated because her husband was on strike, and that in
other respects the Respondent unlawfully interfered with
employee rights guaranteed in Section 7 of the Act, all in
violation of Section 8(a)(3) and (1) of the Act.
In its answer, the Respondent denied the allegations in
the complaint concerning unfair labor practices regarding
the closing of the body shop, and alleged that this was
done "for a strictly business reason unrelated to any union
activities or any rights guaranteed to its employees under
Section 7" of the Act; stated that the Respondent "was
economically justified in closing its body shop"; that the
decision to close the shop "was made prior to any request
for representation by its employees and/or the Charging
Party"; and that the decision "was justified for reasons of
safety and the well being of its employees." The Respon-
dent's motion to dismiss the complaint is denied.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses, and
consideration of the brief filed by counsel for the General
Counsel and the Respondent on March 27, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an automobile dealer, maintains its
principal office and place of business in Fairfield, New
Jersey, where it is engaged in the retail sale and service of
automobiles, principally Mercedes-Benz, Admittedly, its
annual gross revenue exceeds $500,000 and during the
same period its ships and transports products valued in
excess of $50,000 from its place of business to States other
than the State of New Jersey, and receives goods valued in
excess of $50,000 which are transported directly from
States other than New Jersey. It is admittedly, and I find,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The Union, I find, is a labor
organization within the meaning of Section 2(5) of the Act.
At all times material, Joseph Chnapko and Al Scialo, were,
On October 13, Frank D'Isa, a business agent for the
Union, had a conversation by telephone with Harry
Kleinschmidt, one of the two employees in the Respon-
dent's body shop. Arrangements were made for a meeting
with the employees on October 18.
At 5 p.m. on Monday, October 18, 13 employees met
with D'Isa and another organizer at a lunchroom. One
employee had to leave before the meeting closed, but the
other 12 signed union cards on that occasion. The
following morning, at about 9:30, D'Isa visited the body
shop and there obtained seven additional cards from a
mechanic, Robert Frusciano. About an hour later, D'Isa
spoke to two service writers, Thomas and Riedenger, in a
lockerroom upstairs in the service area. Later in the day,
D'Isa, accompanied by another organizer, Mr. Gola, went
to Scialo's office and, with the union cards in his hand, told
Scialo that he represented the service department employ-
ees for purposes of collective bargaining . D'Isa informed
Scialo that the Union represented two other shops in the
immediate area and that they had "found having a union
wasn't the end of the world, that the employer still
maintained certain rights." During the course of the
conversation, Scialo paged Service Manager Zola and
when he arrived, Scialo, whom D'Isa said was "very
choked and very red faced," asked Zola whether he knew
that his shop had gone union. D'Isa and the other
organizers then left and D'Isa stated that he would be back
at 2 o'clock. They then proceeded into the shop and, in a
brief meeting with employees, related what had happened.
Scialo came over and told D'Isa to stop " wasting our men's
time."
At about 2 o'clock, D'Isa returned to the showroom and
a few minutes later he was told that Scialo was on the
telephone and wished to speak to him. Scialo told him that
the Company had employed an attorney and that he
should get in touch with him. He took the attorney's name
and telephone number and called him, but the attorney
said to call back in half an hour. D'Isa then went back into
the shop and "told the fellows what had taken place, and
that I would be back, be in touch with them." He then left.
As he was in the process of leaving Scialo and another
gentleman came by and D' Isa was told that he should not
"hang around the place, to get out." About a half hour
later he called the attorney and advised him that the Union
normally would go out on strike if they did not obtain
recognition. The attorney asked that the Union not do so
until he had a chance to speak with Mr. Chnapko. He
thought that he would not be able to do so until Friday.
On Tuesday, D'Isa spoke to Kleinschmidt and informed
him of this conversation with the attorney. The following
day, Wednesday, he called the attorney at about 3 o'clock,
and informed him that one of the body shop employees
had been called into the office and "given some heat by
Chnapko." He told the attorney that he understood they
had an agreement that there would be a truce until Friday.
On Thursday morning, October 21, before work, D'Isa met
with about 15 employees in the parking lot. By that time,
J. P. CHNAPKO, INC.
the Union had been informed of the discharge of Szabo
and Kleinschmidt. The employees voted to go on strike in
protest of this action. When the strike started on October
21, there were 20 or 21 of the approximately 26 total
complement on the picket line.
Kleinschmidt testified that on October 19 he was paged
on the intercom and directed to report to Chnapko' s office.
Present were Chnapko, Scialo, and Zola. According to
Kleinschmidt, Chnapko stated that he thought Klein-
schmidt was his friend and asked, "What is this with the
Union coming in here?" Kleinschmidt replied that all the
employees wanted the Union and Chnapko then inquired
if he had signed a card. He replied in the affirmative and
Chnapko asked him why he had done so. In response,
Kleinschmidt stated that things in the shop were getting
worse instead of better. Thereupon, Kleinschmidt testified,
Chnapko stated that there would be no more overtime and
the body shop would close at 4:30, whereas customarily the
employees worked until 8 p.m. The three representatives of
the Respondent denied that this incident had occurred.
According to Chnapko, he was not even at the Fairfield
location that Tuesday or the preceding day; however, he
later testified that he had not said that he was absent from
the shop on Tuesday and then later stated that he had been
present on Monday as well. Scialo testified that he had
talked to D'Isa just before he (Scialo) left for an auction
and that he did not return until 2 p.m. Scialo further
related that Chnapko had telephoned him a few minutes
before he left for the auction and informed him that D'Isa
had been there. Scialo also stated that Chnapko called him
back a half hour later and gave him the name of the lawyer
whom the Respondent would consult with regard to
D'Isa's claim that the Union represented the service shop
employees. Szabo stated that when Scialo asked him on
Tuesday, October 19, if he had signed a union card, which
Szabo acknowledged having done, Scialo told him that this
was not "too good" for Szabo. Scialo denied that this
conversation occurred.
Both Kleinschmidt and Szabo testified that at about 4:25
p.m. on October 19, Scialo directed them to stop work,
although as noted, they usually worked until approximate-
ly 8 p.m. Scialo denied so informing the employees and
stated that they could work until midnight and make "the
same money." However, he later conceded that by working
more hours the employees would make more money.'
Kleinschmidt complained to D'Isa about this matter and in
consequence D'Isa telephoned the Respondent's attorney
the following afternoon and told him that one of the
employees of the body shop "was given some heat by
Chnapko." About an hour after D'Isa's telephone conver-
sation with O'Connell, the attorney, Chnapko came into
the body shop waving his arms wildly and shouted to
Kleinschmidt that he could gather up his tools and "get
out." Kleinschmidt inquired why and Chnapko responded
that he did not have to tell him and told him in an obscene
manner that he did not have to tell him a thing. Moreover,
Chnapko stated in a loud voice that he was closing "this
1 The employees in the body shop worked on piece rates with a
minimum guarantee.
Y The initial bid had been submitted under date of January 29 and it
stated that the price for the rehabilitation would be $23 ,290. Under date of
June 4, a representative of the insurance underwriter wrote to the insurance
255
body shop forever." As he was proceeding to leave the
body shop he told Szabo "and you too." Service Manager
Zola, pursuant to Chnapko's order, stationed himself in the
body shop for some 30 or more minutes watching while
Kleinschmidt packed his tools.
Chnapko's account is that he told Kleinschmidt that
because of the faults found by the state inspector and the
price increase made by the building and general contrac-
tor, it was no longer profitable to keep the body shop going
and, accordingly, it would be closed down.2 Scialo told him
that a Porsche-Audi dealer named Shulman was looking
for a bodyman and that if Scialo found a job for him he
would call Szabo. However, he never did call. Chnapko
and Scialo both stated that Chnapko called a controller of
Shulman during the course of the earlier discussion in the
body shop in order to find jobs for Kleinschmidt and
Szabo.
In further justification for the closedown of the body
shop, Service Manager Zola and General Manager Scialo
testified that "comeback" caused by faulty work in the
body shop averaged about 10 to 17 percent of all the work
performed in the shop. However, an analysis of the
financial statements (Charging Party's Exh. 1 and 2)
discloses that a figure of 3 percent is more accurate.
Late in November, Chnapko invited Kleinschmidt and
Szabo to his home and discussed with them the prospects
of their doing bodywork for the Respondent on an
individual contractual basis or as employees of another
company.
The Termination of Elsa De Jewski
When the service employees struck on October 21,
Jurgen De Jewski, a foreman, was among those picketing
the plant. Mrs. De Jewski, who worked as a bookkeeper,
testified that on that day Chnapko told her that he did not
want to lose her husband as he was a capable worker, that
he disliked seeing him on the picket line while she was in
the office, and suggested that she talk to her husband and
tell him that he should come to the office the following
day. In addition, she testified that Chnapko told her that if
her husband did not come to the office the following day
he (Chnapko) would have to let her go. She further testified
that he repeated this several times to make sure that she
understood him and then added that if her husband did
come in the following day she would get a raise and her
husband would get a pension at age 60. At approximately 5
p.m., so she testified, she asked Chnapko if he desired that
she come to work the following day, October 22, in order
"to finish the books" even if her husband did not wish to
come to the office. According to Mrs. De Jewski, Chnapko
consulted Scialo and she was then advised that this
arrangement would be all right. Chnapko and Scialo
testified that Mrs. De Jewski told them that she could not
work for the Respondent while her husband was picketing.
She did, in fact, work on October 22, although the picket
line was still there. She was offered reinstatement to her job
agency handling .Chnapko's account, acknowledging receipt of a proposal
for a new building with approved sprinkler baths . It should be noted that
the state inspector was not scheduled to visit the shop until mid-1973, and
had last visited the plant in May 1971.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on November 10. However, she chose not to return to
work.
Concluding Findings
There is no dispute that Kleinschmidt arranged for a
meeting of the Respondent's service employees for Mon-
day evening, October 18, at which 12 employees executed
authorization cards for the Union. The following morning
an additional seven cards were handed to Union Repre-
sentative D'Isa in the body shop. Nor is there any doubt
that the Respondent was aware of this activity on the
morning of October 19, when D'Isa informed General
Manager Scialo that the Union had authorization cards
from a majority of the employees in the service depart-
ment.
On the following day, October 20, Kleinschmidt and
Szabo were terminated and informed by Chnapko that the
body shop was closed "forever." I think there can be little
doubt, upon the foregoing facts, that the termination of the
two body shop employees and the closedown of the shop
were discriminatorily motivated.
On the other hand, the Respondent argues that Chnap-
ko, during the weekend preceding October 20, had decided
that the body shop was not making sufficient money and in
consequence concluded that he would close it down. A
close examination of the testimony of Chnapko and the
accountant, Nassaur, plainly indicates that the asserted
basis for closing the body shop was an afterthought. Thus,
Chnapko told Klemschmidt that the body shop was being
closed because of a visit by a state inspector (which had
occurred some 6 months previously), and because of a
price increase in the cost of erecting a separate body shop
(of which he had been notified some 5 months earlier).
Richard Ilg, controller of Shulmans, testified that about
the middle of October he had conversations with Chnapko
in which the latter stated he was closing his body shop and
was trying to find positions for the two body shop men. He
added that Szabo applied for a job sometime before the
strike began at the Respondent's plant.
The Respondent's Defense
In substance, the Respondent contends that it had
decided to close down the body shop 1 or 2 days before the
employees signed union cards on October 18. There is no
dispute that for something more than 5 years the body
shop facility in Fairfield was unsatisfactory and that for
about a year the Respondent had considered erecting a
separate building to house the body shop. Despite the
inadequacies in the body shop, Chnapko felt that it created
good will with customers. It is undisputed that, after each
of the previous visits by the state inspector, Kleinschmidt
reported the violations found to Chnapko, but the latter
replied in obscene terms that he would pay no attention to
the inspector. While Service Manager Zola testified that
the body shop was not producing any revenue, the
Respondent's accountant testified that net profit for the
body shop in 1970 was 24 percent of gross earnings and for
the year 1971 the figure was 21 percent. It will also be
recalled that less than a month before the closedown the
Respondent received a blueprint for a separate building to
house the body shop.
According to Chnapko, he and his accountant, Joseph
Nassaur, on October 16 engaged in a half-hour discussion
about applications that had been filed to fill the bookkeep-
er's job. He was unable to recall if they discussed the
closing down of the body shop. On the other hand,
Nassaur testified that he discussed the bookkeeper applica-
tions with General Manager Scialo at the plant and later
talked with Chnapko at the latter's house about the body
shop closedown. According to him, Chnapko had the
financial statements for the year 1970 and September 1971
with him, whereas Chnapko testified that Nassaur fur-
nished the statements. Nassaur subsequently testified that
the monthly statements are normally prepared by the end
of the following month, from which it would appear that it
is doubtful whether the statement for September 1971 was
available to them on October 16. According to Nassaur, he
and Chnapko discussed percentages of profit, whereas it is
Chnapko's testimony that they did not discuss percentages.
At one point Nassaur testified that Chnapko was not
definitely committed to closing the body shop. In Nas-
saur's view, the net profit figures of the body shop were out
of line and did not reflect certain insurance costs which
should properly be attributed to the body shop. The basis
for this conclusion rested on discussions he had had with
Chnapko's brother-in-law, Mr. Beyer, some 9 months
earlier . Under date of May 20, 1971, the W. G. Beyer
Insurance Agency, which is operated by Beyer, received a
letter from Lumbermen's Mutual Casualty Company, the
insurance underwriter, concerning the Chnapko property,
as follows:
We have found it necessary to have frequent inspec-
tions on this property due to the type of operation and
its location , which is in an area where the public
protection is not adequate. For some time, it has been
indicated that a paint spray booth was in the planning,
but apparently this idea has been abandoned for the
moment . Because of the numerous recommendations
developed on our last inspection, we feel the risk does
not measure up to our underwriting standards for this
type of occupancy.
However, with compliance of recommendations and a
guaranteed assurance that an adequate spray booth will
be provided within the next 45 days, we can consider
remaining on this risk. Otherwise we will find it
necessary to ask for the return of our policy for
cancellation or direct notice of cancellation will be
released on July 6, 1971.
We hope the insured will be receptive to these
conditions.
Again under date of October 14, Lumbermen's Mutual
wrote as follows to the Beyer Agency:
In April of this year after numerous inspections, you
were advised that consideration be given to compliance
of essential recommendations that were submitted to
the insured. The body shop area which is not cut off
did not have adequate paint spray booths and
operations should be corrected.
It does not appear that any corrective measures have
been taken to date and unless you can assure us that
J. P. CHNAPKO, INC.
some action will be taken, we will find it necessary to
ask that this coverage be replaced or we will send direct
notice of cancellation. We hope this will not be
necessary. We would appreciate hearing from you
within the next 30 days.
It should be noted that the Respondent did not submit any
specific figures respecting additional insurance cost to be
charged against the body shop and it is admitted that the
premiums for fire insurance coverages to be allocated to
the body shop are fixed and that it might take some 6 or 7
months from the date of the hearing to have these charges
adjusted based upon the shutdown of the body shop.3
CONCLUSIONS OF LAW
1. By discharging Harry Kleinschmidt and Atilo Szabo
on October 20, 1971, and Elsa De Jewski on October 22,
1971, because of their support of the Union, the Company
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
2. By coercively interrogating employees and threaten-
ing them with closure of the plant in the event the Union
came in, the Company violated Section 8(a)(1) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and from like
or related invasions of the employees' Section 7 rights, and
to take certain affirmative action.
The Respondent having discriminatorily discharged
employees Harry Kleinschmidt, Atilo Szabo, and Elsa De
Jewski, I find it necessary that it be ordered to offer them
full reinstatement (except Mrs. De Jewski), with backpay
computed on a quarterly basis, plus interest at 6 percent
per annum, as prescribed in F. W. Woolworth Company, 90
NLRB 289 and Isis Plumbing & 'Heating Co., 138 NLRB
716, from the date of the discharge to the date reinstate-
ment is offered. In the case of Mrs. De Jewski, backpay
stops as of November 10, when she was offered reinstate-
ment and declined.
[Recommended Order omitted from publication.]
3 Nassaur, the accountant, produced photostatic copies of billing
statements used by his firm and stated that part of the handwriting thereon
was his and part of it was that of a bookkeeper in his office Later in the
hearing , the originals were produced and then Nassaur testified that on his
own personal timesheet he inserted , sometime in October, a reference to the
discussions with Chnapko on October 16, concerning applications for the
bookkeeper's position and the body shop closedown, however, he admitted
that two employees in his office in transferring those notes onto other
documents noted that the discussions pertained only to job applications,
and he then testified that he added the reference to the body shop
operations in mid-November
SUPPLEMENTAL DECISION
IVAR H . PETERSON , Administrative Law Judge : On April
13, 1972, I issued my Decision in this proceeding.
Thereafter, exceptions were filed by the Respondent as
well as by the General Counsel. Under date of June 23, the
Board remanded the matter to me to make further findings
and additional resolutions of credibility . By reason of some
257
inadvertence, the Board's order remanding was not
brought to my attention until very recently.
In its Order remanding, the Board stated that "the
General Counsel, in his exceptions, takes issue with the
failure of the Trial Examiner to make additional findings
of fact and conclusions of law, and to recommend an
appropriate remedy in regard to the allegation raised in the
complaint that the Respondent unlawfully reduced the
overtime of Harry Kleinschmidt and Atilo Szabo and
made unlawful promises of benefits to employee Elsa De
Jewski." The Board went on to state that while it was of the
opinion "that the Trial Examiner 's Decision has adequate-
ly summarized the testimony and evidentiary conflicts
contained in the record, he has not sufficiently evaluated
the evidence and made the necessary credibility findings to
support his conclusions of law and recommended remedy.
Moreover, certain issues raised by the General Counsel's
exceptions regarding allegations in the complaint not ruled
upon cannot be fully resolved without further findings and
credibility resolutions." Accordingly, the Board stated that
by reason of "these omissions in the Decision" it felt
constrained to remand the matter to me for "preparation
of a Supplemental Decision containing resolutions of the
above issues."
The language of the Board's Order puzzles me some-
what. I have carefully reviewed my Decision in this case
and note, firstly, that in my recommended Order I stated
that the Respondent and its officials should cease and
desist from "Discharging or otherwise discriminating
against any employee for supporting Amalgamated Local
Union 355, or any other union," secondly, cease and desist
from "Coercively interrogating or threatening any employ-
ee about union support or union activities" and, thirdly,
"In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act." After reviewing my Decision and the
supporting findings of fact, I am somewhat at a loss to
understand the basis for the General Counsel's exceptions.
Assuming, arguendo, that I should have made "additional
findings of fact and conclusions of law , and to recommend
an appropriate remedy in regard to the allegation raised in
the complaint that the Respondent unlawfully reduced the
overtime of Harry Kleinschmidt and Atilo Szabo and
made unlawful promises of benefits to employee Elsa De
Jewski," I note that in my recommended Order I provided
that the Respondent and its representatives should, among
other things, cease and desist from in "any other manner
interfering with, restraining, or coercing employees in the
exercise of their rights under Section 7 of the Act."
Affirmatively, I recommended that the Respondent make
whole the employees found to have been discriminated
against. In the section of my Decision entitled "The
Remedy," I provided that the Respondent offer reinstate-
ment to Harry Kleinschmdt and Atilo Szabo, but that as
to Mrs. De Jewski there would be no backpay awarded her
subsequent to March 10 "when she was offered reinstate-
ment and declined."
In compliance with the remand, I have reviewed the
record again and, consistent with the conclusions previous-
ly made and the remedy recommended, my evaluation of
the testimony and my judgment of the relative credibility
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of witnesses is that General Counsel 's witnesses are to be
credited and, to the extent the witnesses presented by the
Respondent contradict General Counsel's witnesses, they
are not to be believed. In my view, the testimony of the
General Counsel 's witnesses is consistent with the objective
facts. Moreover, as I pointed out in my Decision, Chnapko
and his accountant, Nassaur, differed in their testimony
regarding the meeting of October 16, 1971, at which the
closing of the body shop was discussed.
Upon the entire record, I find as a fact and conclude as a
matter of law that the Respondent violated Section 8(a)(3)
and (1) of the Act by reducing the overtime of Klein-
schmidt and Szabo on October 19,197 1, and that it should
make them whole for that action . Moreover, I also find as a
fact and conclude as a matter of law that the Respondent
unlawfully promised benefits to De Jewski if her husband
would cease picketing and return to work.
[Amendments to recommended Order omitted from
publication.]