L. J. Dreiling Motors Co., Inc.

National Labor Relations Board - Board Decisions

Nov 28, 1967

168 N.L.R.B. 535 (N.L.R.B. 1967)

L. J. DREILING MOTORS CO., INC. 535
L. J. Dreiling Motors Co., Inc. and International As-
sociation of Machinists and Aerospace Workers
ORDER
and Its District Lodge No. 86 , AFL-CIO. Cases Pursuant to Section 10(c) of the National Labor,
27-CA-2182 and 27-CA-2256 Relations Act, as amended, the, National Labor
November 28,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On August 18, 1967, Trial Examiner Ramey
Donovan issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in
other unfair labor practices alleged in the complaint.
Thereafter, the General Counsel filed limited ex-
ceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief
filed by the General Counsel, and the entire record
in these cases, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Ex-
aminer with the following modifications.
Although the Trial Examiner's Decision refers to
findings that certain unilateral changes violated
Section 8(a)(5) of the Act, he in fact made no 8(a)(5)
findings, apparently through inadvertence. Since
the Respondent discontinued coffeebreaks and the
practice of paying for Sunday holidays at a time
when the Union had been designated as the collec-
tive-bargaining agent in the shop, we find that the
Employer's unilateral action with respect to these
matters violated Section 8(a)(5) as well as Section
8(a)(1) of the Act.
We also find merit in the General Counsel's ex-
ceptions to the Trial Examiner's failure to include
in the remedy a provision that Respondent reim-
burse its employees for the aforementioned
holidays. Since, inter alia, the holiday pay was de-
nied the employees in reprisal for their voting for
the Union, a proper remedy should include an order
restoring the status quo.1
Relations Board hereby orders that the Respond-
ent, L. J. Dreiling Motors Co., Inc., Denver,
Colorado, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Threatening employees with the loss of
benefits because they voted for the International
Association of Machinists and Aerospace Workers
and its District Lodge No. 86, AFL-CIO, or any
other labor organization.
(b) Changing conditions of employment as a
reprisal against employees for voting for the Inter-
national Association of Machinists and Aerospace
Workers and its District Lodge No. 86, AFL-CIO,
or any other labor organization.
(c) Unilaterally changing conditions of employ-
ment of employees in an appropriate bargaining unit
represented by the aforesaid Union, or any other
labor organization.
(d) Discouraging membership in the Interna-
tional Association of Machinists and Aerospace
Workers and its District Lodge No. 86, AFL-CIO,
or any other labor organization, by discharging or
otherwise discriminating against employees in re-
gard to hire or tenure of employment or any term or
condition of employment.
(e) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form labor
organizations, to join or assist the International As-
sociation of Machinists and Aerospace Workers
and its District Lodge No. 86, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection, or the right of employees to refrain from
any such activity as such right might be qualified by
a lawful union-security contract.
2. Take the following affirmative action to effec-
tuate the purposes and policies of the Act:
(a) Offer reinstatement to Robert Shepard to his
former or substantially equivalent job without
prejudice to his seniority and other rights and
privileges, and make him whole for any loss of pay
or other compensation he may have suffered by
reason of the discrimination against him, in ac-
cordance with the criteria and standards set forth in
the portion of the Trial Examiner's Decision enti-
tled "The Remedy." Interest at the rate of 6 percent
per annum shall be added to this amount, to be com-
puted in the manner set forth in Isis Plumbing and
Heating Co., Inc., 138 NLRB 716. Notify the
' Wilbraham Manufacturing Corp., 167 NLRB 333.
168 NLRB No. 76
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-named employee, if presently serving in the
Armed Forces of the United States, of his right to
full reinstatement , upon application , in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(b) Preserve and, upon request , make available
to the Board or its agents , for examination and
copying, all payroll records, social security pay-
ment records , timecards , personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Reimburse employees in the bargaining unit
on Christmas Day of 1966 and New Year's Day of
1967 for holiday pay for those days.
(d) Reinstitute its former system of paying for
Sunday holidays.
(e) Post at its shop in Denver, Colorado, copies
of the attached notice marked "Appendix."2 Copies
of said notice , to be furnished by the Regional
Director for Region 27, after being duly signed by
Respondent's representative, shall be posted by
Respondent 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
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 27,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
2 In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals, En-
forcing an Order."
APPENDIX
WE WILL NOT unilaterally, and without first
negotiating with the Union that won the
aforesaid election, change any condition of em-
ployment.
WE WILL NOT discriminate against em-
ployees because of their union activities or sup-
port of the Union by discharge or by changes
as to hours or conditions of employment.
WE WILL offer reinstatement to Robert
Shepard to his former or substantially
equivalent job and WE WILL pay him wages
and other compensation he may have lost as
the result of the discrimination against him.
WE WILL pay those employees in the bar-
gaining unit on Christmas Day of 1966 and
New Year's Day of 1967 for holiday pay for
those days.
WE WILL restore to the employees of the
bargaining unit our former system of paying for
Sunday holidays.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right, under the National
Labor Relations Act, to engage in self-or-
ganization, to form, join, or assist the Interna-
tional Association of Machinists and
Aerospace Workers and its District Lodge No.
86, AFL-CIO, or any other labor organization,
and to bargain collectively through representa-
tives of their own choosing, and to engage in
other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or with the right of employees to
refrain from any and all such activities, except
as such right might be qualified by the provi-
sions of a lawful union -shop contract between
the Company and the Union that is the lawful
collective-bargaining agent in our shop.
L. J. DREILING MOTORS
CO., INC.
(Employer)
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended , we hereby notify you that:
WE WILL NOT interfere with, restrain, or
coerce you by:
Threatening you with the loss of various
benefits because you voted for the Inter-
national Association of Machinists and
Aerospace Workers and its District Lodge
No. 86 , AFL-CIO, in the National Labor
Relations Board election.
Changing and suspending any conditions
of employment because you voted for a
union.
Dated By
(Representative) (Title)
Note: We will notify the above-named employee
if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance With its provisions, they may
communicate directly with the Board's Regional
Office, New Custom House, Room 260, 721 19th
Street, Denver, Colorado 80202, Telephone
297-3551.
L. J. DREILING MOTORS CO., INC.
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner: Charges and
amended charges in Case 27-CA-2182 were filed by the
International Association of Machinists and Aerospace
Workers and its District Lodge No. 86, AFL-CIO, on
January 16, 1967, and at various later dates. The charge
in Case 27-CA-2256 was filed by the Union on April 14,
1967. An amended complaint was issued by the General
Counsel of the Board under date of April 25, 1967.
The amended complaint alleged that Respondent, in
December 1966, told its employees that it would close its
business if necessary to keep out the Union; in January
1967, threatened employees with loss of various condi-
tions of employment if necessary to keep out the Union;
in January 1967, told its employees that those who had
voted for the Union were responsible for future hap-
penings; in January 1967, unilaterally changed existing
conditions of employment; in January 1967, laid off em-
ployee Shepard because of his union activities and since
that time had given preferential employment opportuni-
ties to employee Cyril Dreiling; in April 1967, terminated
employee Shepard because of his union activities; since
January 1967, has refused to bargain with the Union, the
certified bargaining representative. The foregoing con-
duct is alleged to be in violation of Section 8(a)(1), (3),
and (5) of the Act. In its answer, Respondent denies the
commission of unfair labor practices. The case was heard
in Denver, Colorado, on May 31 and June 1, 1967.
1. JURISDICTION
L. J. Dreiling Motors Co ., Inc., Respondent, is a
Colorado corporation . Its principal place of business is in
Denver, Colorado , where it is engaged in the sale and ser-
vice of automotive vehicles. On an actual and projected
basis for a representative 12-month period , Respondent
sold and distributed products and provided services of a
gross value in excess of $500,000. In the same period,
Respondent received goods valued in excess of $500,000
transported directly from States outside Colorado.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
L. J. Dreiling had been service manager for many years
at Bill Dreiling Motors in Denver, Colorado. Bill Dreiling
owned and operated the above-mentioned enterprise and
he was the brother of L. J. Dreiling. Another brother,
Cyril Dreiling, a mechanic, also worked for Bill Dreiling
Motors.
Not long before August 1, 1966, Bill Dreiling Motors
moved to a new location in Denver. The employees
moved with their employer. Around this same period L.
J. Dreiling had apparently decided to go into business for
himself at the site abandoned by Bill Dreiling Motors. L.
J. Dreiling spoke to various employees of Bill Dreiling
Motors about coming to work at his new enterprise, L. J.
Dreiling Motors Company, Inc., at the old location. The
537
employees so approached were men who had worked
under L. J. Dreiling's supervision while at Bill Dreiling
Motors. Among these employees were Shepard, who had
been at Bill Dreiling Motors, for 8 years; Cyril Dreiling,
who had been at the last-mentioned Company for 18
years, Stelter and Jackson.
L. J. Dreiling's statements to the employees recruited
for his new enterprise were, in substance, that it was a
new company, starting from scratch, and that if the busi-
ness succeeded the employees would participate in the
success but that initially they would have the same wages
and working conditions as they had at Bill Dreiling Mo-
tors, with the exceptions of vacations. As to the latter, all
the men would be starting as new employees without the
vacation rights that had apparently accrued to them at the
Bill Dreiling Company. Accordingly, Shepard, Cyril
Dreiling, Stelter, and Jackson came to work at L. J. Dreil-
ing on August 1, 1966, when the latter organization com-
menced operations.
The exact time when union organization commenced
at L. J. Dreiling is not clear but it was evidently in the
latter part of 1966. As far as appears, Dreiling' first
became aware of union activity among his employees
when the Union filed a petition for certification with the
Board and Dreiling was notified of the filing. Dreiling,
then, in the latter part of December 1966, held at least
two meetings with his employees at the Company's place
of business. In the meantime, a Board-conducted election
among the employees had been scheduled for January 5,
1967.
Shepard testified that at a meeting with the employees
on December 28, Dreiling stated that he had gone
through a union contract and that the paid holidays was
what the employees were receiving and other items were
no more than he had told the employees he expected to
give them. As to wages, Dreiling said that the union con-
tract indicated to him that the lotman2 would be making
less money than at present, if the shop went union. Ac-
cording to Shepard, Dreiling said that he had the right not
to negotiate and sign a contract and that he did not need
the Union to tell him how much of a raise to give because
he realized that all the employees needed money. Dreiling
also, according to Shepard, said that if necessary he
would either close or sell his business in order to keep the
Union out.
Employee Jackson recalled one meeting in the period
immediately before the election. Dreiling said, according
to this witness, that the Union was trying to come in and
there was nothing he could do about it. However, Dreil-
ing said that he would like the employees to stick with
him because he did not think that the Union, considering
the size of the shop, "could benefit us [the employees]
anything."
Billington is the brother-in-law of Dreiling and is
Respondent's service manager. He is also secretary or
treasurer of the corporation. He assigns and coordinates
work and writes up repair orders. He is in charge of the
Company in Dreiling's absence and has authority in the
course of his normal duties to grant time off to employees.
We find that Billington is a supervisor.
Billington attended the meetings preceding the election.
In substance, his testimony is that Dreiling said that he
I Unless otherwise indicated "Dreiling" is a reference to L. J. Dreilmg,
the president and principal owner of Respondent.
2 Employee Glenn.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not see why "we" would need anybody coming in
to run the shop and the business and that he could not un-
derstand the need for a union in "our small shop." Billing-
ton states, "We just discussed what would be the benefits
of the union or what would be the drawbacks of it."
Respondent's counsel asked his witness whether Dreiling
had "threatened any of the employees with being fired or
a change in benefits or anything else." Billington an-
swered, "not that I know of." The witness said that Dreil-
ing told them to "vote the way you feel."
Cyril Dreiling testified that in one meeting before the
election, Dreiling "asked us all why we wanted the union
in there" and nobody answered. Dreiling said that it was
up to everybody "to make up their own mind , whether
they wanted to union in or whether they didn't." At
another meeting in the same period the discussion was
along the same lines , according to Cyril Dreiling, but on
this occasion "everybody was voicing their opinion then
about why they wanted the union in there. They'd only
have to work 40 hours a week and make more money. .
a big money raise or something ...." According to
Cyril Dreiling, Shepard spoke up and said "they got
Union all over the country and the Union is going to
come in." Employee Glenn said that he did not want the
Union. Someone else said that with a union they would
only have to work 40 hours and would make more money.
When asked whether Dreiling made any threats, the wit-
ness said , no, and that Dreiling said everybody could vote
the way "they wanted to."
Dreiling testified that at the preelection meetings he
discussed various benefits as they were in the shop and
possible union benefits. He was asked whether he had
ever threatened the men "with firing" and he said, no. He
said that he did not say that he would close his business
if necessary to keep out the Union. The witness testified:
I did say this, and it has been repeated here. I said, if
I can't - I know how to run this place. If I can't run
it this way, and they are wanting to force me out of
business, they will have to do it. I never said I would
lock the doors because of the union, no. I said, `if I
can't do it the way I got to cut down here and there,
and if it is going to aggravate this man or this man,
then I can't stay in business. I will have to lock the
doors ....'
A careful consideration of all the evidence, including
my appraisal of the witnesses, does not persuade us that
in the preelection period, in December 1966, Dreiling
stated in so many words that he would close the business
or sell it to keep out the Union. We incline to believe that
on this aspect Dreiling spoke substantially along the lines
as described by his quoted testimony above. His state-
ments are perhaps susceptible to the construction that
they constituted a threat to go out of business if the Union
came in but this would, in our opinion, be the case only if
added projection and interpretation were applied to the
statements. In context, we believe that the substance of
Dreiling's approach was that he did not believe that a
union was needed in his shop and that a union would not
be helpful. This position was stated to be based on the
fact that Dreiling's business was in its infancy and that he
knew the business and knew what was necessary and
possible in the business; if a union forced him to operate
otherwise than in the way he considered essential to the
existence of the business, it would, in effect, be forcing
him out of business and he would have to close. As we
see the situation, there was not a direct threat as alleged
in the complaint or as testified to by Shepard. The Union
had made no demand for any specific conditions at the
time. There were several bridges yet uncrossed at the
time Dreiling made his remarks. If the Union won the
election and if the Union demanded conditions different
from what Dreiling considered essential to run a success-
ful operation, the Union, in Dreiling's view, would in ef-
fect "force me out of business, [the Union] will have to
do it"; and, then, he would be obliged to close. While
much of what Dreiling said was anticipatory and perhaps
not wholly justified for that reason, the reference to clos-
ing was immersed in contingency and fell short of a direct
threat. We conclude that paragraph VI(a) of the com-
plaint has not been sustained by a preponderance of sub-
stantial evidence.
The Board election was held on January 5, 1967. The
employees voted 3-2 in favor of the Union. The em-
ployees in the unit were Cyril Dreiling, Glenn, Shepard,
Jackson, and Gonzales. No one knows how individual
employees may have voted but the record does show that
Dreiling knew that at preelection meetings Glenn had ex-
pressed opposition to the Union; Cyril Dreiling had said
that the whole thing was a matter of indifference to him-
self; and Shepard had expressed prounion sentiment. It
is our opinion that a reasonable man in Dreiling's position
had reason to believe and probably did believe that his
brother Cyril and Glenn had voted against the Union,
with the other three men voting for the Union.3
On the afternoon of the election, January 5, after the
election, Dreiling convoked a meeting of the employees
in his office. Cyril Dreiling, a witness called by Respond-
ent who was certainly not hostile to Respondent,
testified that at the meeting Dreiling made it clear that he
"was awfully disappointed because three of the men
wanted the Union ...." Dreiling said that since the men
wanted a 40-hour week, then they were going to work a
40-hour week and "there won't be no coffee breaks .. .
until further notice and there won't be no privileges of any
kind."
Billington, another witness called by Respondent,
testified credibly that at the January 5 meeting Dreiling
expressed disappointment over the vote and said that any
"obligations he had for them [the employees] he felt that
he just couldn't, you know, stay with them ... any extra
time off or anything that he might have to spend for them,
he just wasn't going to do it." Billington stated that he
"took for granted he [Dreiling] did mean that he was, you
know, going to stop" contributions to the Blue Cross.
Shepard, whose testimony I credit regarding the Janu-
ary 5 meeting, testified that Dreiling said that three of his
employees had not believed in him and voted for the
Union and that "`as of this date, there will be no more cof-
fee breaks; there will be no more paid holidays; there will
be no more Blue Cross or Blue Shield; you will pay for
your uniforms'; and he also said that the three employees
who had voted for the Union would be responsible for
anything that happened thereafter."
3 Jackson had signed a union card for Shepard . There is no evidence
that Dreiling was aware of this fact but, obviously, three employees had
voted for the Union
L. J. DREILING MOTORS CO., INC. 539
While a witness , Dreiling was asked if he had ever
threatened to stop making the company contributions to
Blue Cross and Blue Shield . He answered affirmatively,
stating that he did so "at the one meeting right after the
election." Dreiling testified that he took the result of the
election very personally and was "emotionally upset"
that the employees had selected an "outside representa-
tive, a stranger."
I find that on January 5, 1967, Respondent , in reprisal
for the majority of the employees ' vote for the Union,
threatened and stated to its employees that it would
deprive them of various existing benefits and conditions
of employment such as daily coffeebreaks ;4 employer
financial contributions to Blue Cross and Blue Shield pol-
icies; paid holidays; and employer payment for rental of
employee work uniforms .5 We find such conduct and
threats to constitute violations of Section 8(a)(1) of the
Act.
In addition to alleging that Respondent threatened its
employees with loss of various conditions of employ-
ment , above, the General Counsel has alleged that
Respondent placed its threats into effect thereby uni-
laterally changing existing conditions of employment in
violation of the Act.
It is uncontroverted that Respondent abolished cof-
feebreaks after the election for a period of 2 or 3 weeks.
Dreiling states that the reason for this was that the em-
ployees for some time in the period prior to the election
had been abusing the coffeebreaks by taking more time
for such breaks than the 10 minutes contemplated. Ac-
cording to Dreiling , he could do nothing about this alleged
situation in December because of the impending election.
The evidence is clear that on January 5 Dreiling told
the employees , inter alia , and, in substance , that there
would be no more coffeebreaks because a majority of the
employees , to his great disappointment, had voted for the
Union . We believe that the foregoing was the principal
motivation for the actual discontinuance of the cof-
feebreaks. There is no evidence that Dreiling or any su-
pervisor had ever mentioned abuse of the coffeebreaks to
employees either before or after the election.6 There was
no obstacle to Dreiling ' s warning or cautioning em-
ployees in December or any other times about excess cof-
feebreak time or abolishing the breaks if the situation
warranted it. A prospective election does not suspend the
employer 's right to customary disciplinary procedures.
Accordingly, we regard the discontinuance of the cof-
feebreaks, a condition of employment , as an act of
reprisal , as it was, in effect , stated to be, on January 5.
This was a unilateral change in a condition of employ-
ment at a time when the Union had been designated as the
collective-bargaining agent in the shop . We find a viola-
tion of Section 8(a)(1) of the Act.
Notwithstanding statements made on January 5, the
evidence does not persuade us that Respondent discon-
tinued its contributions to Blue Shield and Blue Cross
thereafter. We credit Dreiling and other witnesses who
testified that the above condition of employment
remained unchanged.
Regarding uniforms, the Company had paid for the
rental of one clean coverall per week for each employee
using such garments. Cyril Dreiling testified that there
has been no change in the company payment for uniforms
since August 1, 1966, when operations commenced.
Jackson's testimony on this matter is not entirely clear
but at one point in his testimony, when he was describing
the uniform arrangement at Bill Dreiling Motors and at L.
J. Dreiling, he said the latter paid for coveralls but not for
pants as was also the case with Bill Dreiling Motors.
Jackson was then asked, "Q. This is the same as it was
before? A. Yeah, he paid on this." The witness did not
testify to any change after January 5 and, if anything, his
testimony indicates that there was no change.
Shepard testified that, after January 5, he paid for the
full cost of his uniforms by deductions made from his
paycheck. The testimony is apparently, in effect, a state-
ment that the Company no longer contributed to the cost
of uniforms, at least as to Shepard.
Dreiling testified that he paid for one coverall per week
for each shop employee and that this had been the prac-
tice at Bill Dreiling and at Respondent's shop since Au-
gust 1, 1966. Dreiling stated that, if, for instance, an em-
ployee used three coveralls a week, the Company paid for
one and deducted for the other two from the employee's
paycheck. He further stated that due to the presence of a
new office girl, there had been a period when she had, in-
advertently and through ignorance, not made deductions
for uniforms in excess of one per employee and as a con-
sequence the Company had been paying an excessive
amount for coveralls. Dreiling states that this situation
was subsequently corrected.
Timesheets for biweekly periods introduced by the
General Counsel do not, in our opinion, establish that
Respondent ceased paying for one coverall per week for
all shop employees who used them.7 We do not find that
the evidence supports the apparent claim that all con-
tributions by the Company for uniforms ceased after
January 5. We credit the testimony of Cyril, Dreiling and
Dreiling that the contributions by the Company generally
continued.
Regarding paid holidays, Shepard testified that Christ-
mas 1966 and New Year's Day, January 1, 1967, fell on
Sunday and that he was not paid for the holiday Monday
following those holidays. The record indicates that this
was true as to other employees. While the two holidays
occurred before the January 5 election, they were in the
pay period ending January 7, paychecks for which period
were issued on January 11.
Shepard states that, while he was employed by Bill
Dreiling Motors, Memorial Day and July 4, in 1965 fell
on a Sunday and that he did not work on the following
Mondays but was paid for the two holidays. The sig-
4 The employees had had two 10-minute coeffeebreaks a day.
5 These various fringe benefits and conditions of employment had ex-
isted at Bill Dreiling Motors and Respondent had undertaken to provide
the same benefits at its shop. These fringe benefits had been placed in ef-
fect and had continued since the inception of operations at Respondent's
place of business.
6 Billington, the service manager, in testifying that coffeebreaks were
stopped after January 5, was asked:
Q. And did Mr. Dreiling, tell you why he stopped the coffee
breaks.
A. He just said he didn't want any more; we were going to work 8
hours a day.
9 Deductions for coveralls are shown to be as follows-
Period ending 12/10 12/24 1/7 1/21 2/4 2/18 3/4 3/18 4/1 4/15
Cyril Melling 1.75 1.75 1.75 1.75 1. 75 3.50 3.50 3.50 3.50 3.50
Shepard 1,30 1,30 1.30 1, 30 1.30 3.50 --- 3. 50 3.50
Jackson 2. 25 2.25 2.25 2.25 2.25 4.50 4.50 4.50 4.50 4.50
There appears to be an overcharge on Shepard on that paycheck since he
worked only 71/4 horns in the pay period of February 18.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nificance of this asserted practice of Bill Dreiling Motors
is that L. J. Dreiling admittedly promised to and allegedly
did pay in other respects the same benefits as the em-
ployees had received at Bill Dreiling Motors. The
General Counsel therefore argues that the nonpayment
for Christmas and New Years after the election was part
of the same reprisal enunciated by Dreiling on January 5
after the Union won the election.
On the subject of paid holidays by Bill Dreiling, L. J.
Dreiling testified that "Bill Dreiling had policies, what-
ever he wanted. Whatever business would warrant, that
was his policy. If we were making money, he paid very
nicely, and if we weren't, he didn't. He never believed in
paying on a holiday if it fell on a Sunday ... never did,
and he never wanted to, and everyone that worked with
him understood that's how he felt .... He would never
pay on a Saturday or a Sunday if it was a holiday."
Although other Dreiling employees had formerly
worked for Bill Dreiling, Stelter was the only one who
testified regarding the holiday pay on Sundays aspect.
Stelter was asked whether Bill Dreiling had paid for all
holidays that were not worked. Stelter said, yes, "except
two that we have a little argument about ... a year ago
[1966] on Christmas and New Years" which were on a
Saturday. The witness states that he was paid for only a
half day and he had expected a full day's pay. However,
Stelter said that in his 5 years at Bill Dreiling, he had no
other problem about holiday pay. This tends to cor-
roborate Shepard's testimony that holiday pay was paid
on Memorial Day and July 4, 1965, both of which, the
calendar shows, fell on a Sunday.
It may be, as Dreiling testified, that Bill Dreiling did
not like to pay for a nonwork holiday, but Shepard's
testimony, corroborated in an essential respect by Stelter,
persuades me that Bill Dreiling did pay for Memorial Day
and July 4 Sunday holidays in 1965.8 Confronted by such
evidence in the General Counsel's case, Respondent was
in a position to refute it by recourse to Bill Dreiling, L. J.
Dreiling's brother, or his representative, or by recourse
to records of the Bill Dreiling Company. This was not
done nor was Respondent's witness, Cyril Dreiling, who
had worked for Bill Dreiling for 15 or 18 years, asked
about this subject.
The question remains whether L. J. Dreiling was
unaware of the foregoing past practice of Bill Dreiling.
This seems unlikely in view of his long years of employ-
ment with his brother. Further, there is the threat made
on January 5 by Dreiling that existing privileges and
benefits would be discontinued because of the election
outcome and the specific inclusion of holiday pay among
the benefits to be discontinued. While it is true that all the
threats were not carried out 100 percent, they were car-
ried out regarding coffeebreaks and the decision on pay-
ment or nonpayment for Christmas and New Years came
to a head in this context and very soon after January 5. It
is our opinion, therefore, that the preponderance of the
evidence warrants the conclusion that even the possibility
of payment for the two aforementioned Sunday holidays
was deliberately foreclosed as a reprisal for the result of
8 Obviously, in the period of years, not too many holidays occur on a
Sunday.
9 Customarily, Respondent's employees worked substantially in excess
of 40 hours at straight time rates. Shepard had never refused to work on
Saturdays and there is no convincing evidence to the contrary.
10 Dreiling testified that at one of the meetings he told the employees
that from reading books he had learned that among the proposed ad-
vantages of a union were that "You would get more money, you would get
40 hours. . . . "
the election. Under the circumstances, this was a change
in conditions of employment, including the normal and
reasonable expectation of the employees that Dreiling
would pay for Sunday holidays as had Bill Dreiling, a
standard that Dreiling had stated he would follow. This
conduct is, in our opinion, violative of Section 8(a)(1) of
the Act.
Following the election on January 5, Respondent
reduced the hours of employment of its employees in
varying degrees. This is the basis of the General Coun-
sel's allegation that, in January, Respondent laid off em-
ployee Shepard and gave preferential employment to
Cyril Dreiling. In his brief, the General Counsel also in-
cludes the change in hours of employment among the uni-
laterally changed conditions of employment referred to in
the complaint.
As Cyril Dreiling testified, Dreiling told the em-
ployees, inter alia, on January 5, after the election, that
since the men wanted a 40-hour week, they were going to
have a 40-hour week. It is true that in preelection
meetings with Dreiling various employees had cited a 40-
hour week as one of the advantages to be obtained by
bringing a union into the plant. However, it is apparent
that in context the men were referring to a 40-hour week
as a means of making more money albeit with a possible
reduction in hours.9 Thus, Cyril Dreiling, in describing
what some of the men said at the meetings with Dreiling
about the advantage of a union, said that they referred to
a 40-hour week "and make more money ... get a big
money raise or something ._._.." Dreilin , himself, at one
of the meetings, indicated that he was aware that the em-
ployees were interested in greater income since he said
that he did not need a union to tell him "how much of a
raise to give his employees or when to give it because he
realized that they all need more money."10 Indeed, em-
ployers, including Dreiling, in our opinion, are generally
aware that one of the principal reasons employees join
unions is to obtain more money and, in the instant case,
the employees evidently believed that with a union they
could obtain a 40-hour week with the attendant result of
more income to the employees. This, hopefully, to come
about through an increase of hourly rates with time and
one-half for overtime. We do not believe that the em-
ployees were seeking a reduction in take-home pay by
simply reducing their hours at the existing wage rate and
we think that Dreiling understood this.11 Consequently,
we are not impressed by the statement in Respondent's
brief, "Can an employer be accused of an `unfair labor
practice' for putting into effect after the election what the
employees expressed as one of their goals before the elec-
tion?" For reasons previously stated, we believe what
Respondent did was not the putting into effect of one of
the employees' preelection goals. Further, after the elec-
tion, there was a union in the picture as the bargaining
agent and the latter was not legally to be ignored in the
Employer's-,-changing conditions of employment
thereafter.
In spite of Respondent's statements that its reduction
of hours, after the election, was in keeping with the
" Forty hours at $2 per hour yields $80; 45 hours at $2 yields $90; 40
hours at $2 10 yields $84; 40 hours at $2.25 yields $90; 40 hours at $2.10
or at $2.25, with time and one-half for hours over 40, has the highest yield.
To the employees interested in more money, as was apparently true in the
instant case , reduced hours with no change in wage rate, is the least
desirrble situation. None of the parties, in our view, believed that the em-
ployees wanted a union in order to bring about the last-mentioned situa-
tion.
L. J. DREILING MOTORS CO., INC.
preelection goals of the prounion employees, its principal
defense of its action is economic. 12
Before considering the economic reasons advanced for
the postelection reduction in hours'13 we note the uncon-
troverted testimony of Dreiling regarding a telephone
conversation he had with a union official early in January
1967. Dreiling called Meacham at the union office 14 and
said, "now that the election is over I would like to kind of
cut down a little bit, business is slow, and I just cannot af-
ford any more; I have to cut." Meacham replied, "Well,
I guess if you got to cut back, go ahead, Lloyd ..." and
Meacham then asked about negotiations for a contract.
Dreiling said that he was prepared to negotiate any day of
the week. Thereafter, contract negotiations commenced
between Respondent and Waggoner, another union
representative. Other than as indicated above, the Union,
after being advised by Respondent of a cutback in opera-
tions, did not seek to bargain concerning the cutback or
the manner in which it was carried out. Under these cir-
cumstances, we do not regard the cutback as unilateral in
derogation of the bargaining agent's status.
As to the economic justification for the reduction in
hours, we have the testimony of Dreiling. Dreiling did not
produce business records in support of his statemgnts re-
garding the state of his business but his testimony was not
controverted by the General Counsel.15 One factor, to be
noted at a later point, does raise some question about
business conditions at the shop as testified to by'Dreiling
but it is doubtful that it is sufficient to overcome Dreil-
ing's testimony as to the state of his business however
general such testimony was in various ways.
Dreiling testified that he started the business in August
1966 with borrowed capital of $30,000. On the first day
of the hearing, Dreiling testified that the Company lost
approximately $2,000 in February 1967. In 3 months, he
said, the Company had lost about $10,000, of which
$4,000 was the loss in December. In March, the witness
said that the Company was in the "black" for about
$7,000 but that this was not really profit because "I
hadn't paid any bills." At the end of February, Dreiling,
on the second day of the hearing, reiterated that the Com-
pany lost about $10,000 in 3 months.16 At the end of
February 1967, of his $30,000 capital, he had about
541
$22,000 but if he paid his bills, he said, he would have
been down to $15,000. He borrowed another $5,000 in
March and thereafter another $10,000.
Dreiling stated that the direct labor costs were $2,000
in December and the same in January; $2,000 in
November; close to $3,000 in October. Sales of parts in
January were $1,500 and $1,800 in November and
December. The total amount from the sale of labor and
parts declined "slightly" in December and no profit was
realized. Dreiling stated that he never showed a profit "in
that department." On reconditioning used cars for sale,
reconditioning costs were charged to the car units. The
objective was to keep down the reconditioning costs.
Reconditioning costs were $2,173 in September; $2,000
in October; $1,800 in November; $3,300 in December;
$1,700 in January as the result of cutbacks after the elec-
tion; $521 in February, also the result of cutbacks.
According to Dreiling, his auditor, evidently some time
before January 1967, had told him to cut back but he did
not do so. Various people had advised him that he would
find himself in trouble if he made cuts while the Union
was trying to organize the shop. He became aware on
January 6 or 7 that he had lost $4,000 in the business in
December 1966.17
While the economic justification for retrenchment in
operations was presented in the rather general manner
aforedescribed, it was not controverted. As far as the
record shows, the financial position of the business was
not good when the cutback in hours was made.
There were six employees whose hours of work are
relevant to the question of Respondent's cutback in hours
after the election. They are the two mechanics; Cyril
Dreiling and Shepard; the two body shopmen, Jackson
and Gonzales; and Glenn, who according to Dreiling,
polished cars, did dusting, "shagged" parts, and did occa-
sional mechanical work upon request. Weber, a
mechanic, commenced work "right after the first of the
year." He was employed prior to January 5 but was not
an eligible voter. The record shows the hours worked by
the men in a short period prior to January 6,18 and in the
period thereafter. From the biweekly timesheets in
evidence, we have compiled the following:19
Period ending 12/10 12/24 1/7 1/21 2/4 2/18 3/4 3/18 4/1 4/15 4/29 5/13
C. Dreiling 111(155) 106 3/4(15) 92 3/4(10) 1035(175) 1085(155) 1055 110 3/4 110 114 1125 113 314 115
Shepard 103 935 77 43 3/4 355 7k - 40 - 25
Jackson 101 103 77 45 3/4 585 583'4 185 40 80 695 d0 81
Glenn 113(105) 110(125) 96(16) 1095(10) 99 3/4(6) 825 92 3/4 90 935 735 95 3/4 885
Gonzales 103 103 76 3/4 16
Weber m 85 57 2 - 31 - - 73 3/4 102 3/4
12 In its brief, Respondent states that one of the reasons why Respond-
ent restncted hours of employment, commencing in January 1967, was
because it then became subject to the "Federal Wage and Hour Act " As
we read the amendments to the Fair Labor Standards Act, the provisions
thereof do not apply to, inter a/fa (Sec. 13(10)), "partsman or mechamc
primarily engaged in selling or servicing automobiles ... trucks. . if em-
ployed by a nonmanufacturing establishment primarily engaged in the
business of selling such vehicles to ultimate purchasers."
13 Alleged in the complaint as a layoff of Shephard.
14 The charges in the instant case indicate that George E. Meacham is
a grand lodge representative in the Union.
11 It was my observation that Respondent produced records that the
General Counsel requested through subpena. Regarding business records,
losses, and so forth, Dreiling testified that he had records to substantiate
his statements. He was not requested to produce such records by the
General Counsel and Respondent did not offer such records in evidence.
16 At one point Respondent's counsel referred to the months as
December, January, and February.
17 We have earlier noted that at one of the preelection meetings with the
employees, Dreiling had evidently in mind some prospective cutbacks
since, in expressing opposition to a union he had said, "if I can't do it the
way I got to cut down here and there, and if it is going to aggravate this
man or this man, then I can't stay in business." [If a union means that I
cannot make cuts when I deem it essential to the business and if cuts
among individual employees affected make them unhappy, then I cannot
continue in business.]
18 Dreiling testified that he commenced reducing hours of work the day
after the election.
11 Where two sets of hours appear for C. Dreiling and Glenn, the
smaller number represents extra work they sought and received. This
extra work involved different work than their regular job and included
janitorial type duties at a lower rate
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we have indicated, on such evidence as is in the
record, limited and undetailed as it is as to many facts,
Respondent's evidence as to the poor state of its business
has not been controverted. Despite statements made by
Dreiling on January 5, the evidence warrants the conclu-
sion that the general subsequent curtailment of working
hours had economic justification and was so motivated.
At least, in our opinion, the preponderance of the
evidence does not justify a conclusion that the
retrenchment would not have occurred but for the union
victory in the election.
The General Counsel points to the preferential treat-
ment accorded to mechanic Cyril Dreiling as compared
to the other mechanic, Shepard. The evidence before us
indicates that even in the preelection period Cyril Dreil-
ing worked a greater number of hours than Shepard.20
Cyril Dreiling was about 50 years old and had been a
mechanic for many years, including about 18 years at Bill
Dreiling Motors. At the latter company, according to L.
J. Dreiling, his brother Cyril, had also worked more hours
than the other mechanics. Cyril was, of course, the
brother of Bill Dreiling and L. J. Dreiling and this fact,
plus the fact that he had a large family and was evidently
interested in working as much as possible, provide a
reasonable explanation for the situation. Moreover, the
instant record shows that Cyril had had extensive training
at mechanics' schools of various car manufacturers and
the record indicates that be was a highly experienced and
competent mechanic. Although Cyril Dreiling was not a
supervisor, other mechanics at the shop would consult
with him when there was a mechanical problem in the
course of the work. This man was also versatile in electri-
cal and plumbing matters and consequently a generally
good man to have around.
A consideration of all factors does not persuade us that
the General Counsel has sustained the burden of proof to
establish that the preference in amount of working time
accorded to Cyril Dreiling in comparison to Shepard was
illegal preferential treatment. Obviously, Respondent
could have spread the work more equitably between Cyril
and Shepard but, in our opinion, it was not required to do
so. If the Union, after being notified by Dreiling that he
was going to make some cutbacks in his business opera-
tions, wished to negotiate regarding the details thereof, it
was incumbent upon it to so state. As far as appears, it did
not do so, nor did it inquire as to the method or other
aspects of the cutback.
Another aspect of the General Counsel's contentions
is that the working hours of the three men who voted for
20 Since the General Counsel secured Respondent's timesheets and
selected those that it introduced into evidence, we cannot assume that in
the period August 1966 to December, a different pattern would be shown
as to the preelection period than that shown by the two or three preelec-
tion timesheets offered in evidence by the General Counsel.
21 Nobody knows how the men voted and in that sense Dreiling's
testimony may be considered correct. However, the vote was of such
major importance to Dreiling and he reacted with such resentment at the
fact that the vote was 3-2 for the Union, it is inconceivable that he did not
formulate a conclusion as to who voted for or against the Union. This was
a small shop and he knew the men well and had discussed the Union with
them at several meetings Glenn had spoken against the Union and
Shepard in favor of the Union. Dreihng's brother Cyril had not spoken
prounion and, in view of their relationship and Dreiling 's position that a
union would impair his newly started enterprise in which Cyril and Billmg-
ton, a Dreiling brother-in-law, were also interested as a source of
livelihood, it is reasonable to conclude that Dreiling believed that the two
votes against the Union came from Cyril and Glenn, with the remaining
the Union, Shepard, Jackson, and Gonzales, were sub-
stantially curtailed whereas the hours of the two em-
ployees who voted against the Union, Cyril Dreiling and
Glenn, were affected much less, if at all. We have stated
our opinion, in spite of Dreiling's testimony that he did
not know who voted for or against the Union, that he had
reason to believe, and, in our opinion, did believe, that his
brother and Glenn had voted against the Union, leaving
the three union votes to be attributed to the other three
employees.21
The fact that the curtailment of hours of Shepard,
Jackson, and Gonzales was substantially greater than
with respect to Cyril Dreiling and Glenn and, assuming
that the former three were believed by Respondent to
have voted for the Union, this fact is not sufficient to
establish illegal discrimination. Dreiling may not have
been displeased about the situation but we have already
considered that, as between the two mechanics, Cyril
Dreiling and Shepard, the evidence is insufficient to
establish illegal preferment for Cyril. Jackson and Gon-
zales both worked in the body shop. We have no antiu-
nion body shop employee with whom to make a com-
parison as to hours worked. Such evidence as the record
contains, as we have previously stated, establishes a poor
economic position on the part of Respondent and nothing
to controvert the asserted need of a cutback. As far as ap-
pears, Gonzales and Jackson worked less hours because
there was less body shop work. No evidence in the record
establishes the contrary.22 As to Glenn, who was a sort of
utility man or lot man engaged in starting cars (evidently
used cars that were for sale), shagging parts, and cleaning,
polishing, and dusting cars, he worked a substantial
number of hours both before and after the election. There
is no evidence that the available work for Glenn after the
election did not warrant the hours worked or that he was
performing work normally performed by Shepard,
Jackson, or Gonzales.23
As has been stated, Respondent cut back on hours
worked after the election. We have concluded that the
economic justification advanced by Respondent for cut-
back prevails over the contentions by the General Coun-
sel. This despite the fact that Dreiling admittedly told the
employees after the election that since they wanted 40
hours and since this was one of the reasons they wanted
a union, he would see that they worked only 40 hours. We
have also found that the preferential treatment accorded
to Cyril Dreiling with respect to hours worked in the
period after the election as compared to Shepard was not
illegal.
employees accounting for the union vote. Moreover, Dreiling's appeal to
the employees to reject the Union had been principally based on an appeal
for loyalty and trust in him. Dreihng testified as to his brother's loyalty in
coming with him and assisting him in the new business . He said that he
and his brother were "pretty close" to each other. He had no reason what-
soever to believe that his loyal brother had not cast one of the votes
against the Union.
22 Gonzales left the employ about January 10 after being informed that
there was insufficient work for him
22 Apparently, when requested, Glenn did perform some mechanical
work but the record is not clear that this was not also true prior to the elec-
tion Dreiling testified that Glenn "occasionally" did mechanical work if
required The General Counsel asked, "Didn't he do mechanical work
after January 139 A. [By Dreiling] He probably did, sure." This is the
extent of the evidence on the point and it indicates that Glenn, before and
after the election, performed some mechanical work, upon request.
Whether this was the work of a full-fledged mechanic like Shepard is not
known and the extent of such mechanical work is not shown.
L. J. DREILING MOTORS CO., INC. 543
However , there is another aspect regarding the reduc-
tion in hours that merits attention since it bears on the al-
leged discrimination against Shepard.
According to Dreiling, by December 1966, if not earli-
er,, he was aware that his sales were off and that he was
losing money. He had decided that a substantial cutback
in hours of the shop employees was necessary. The two
mechanics were Cyril Dreiling and Shepard . For succes-
sive biweekly periods after the election, Shepard's hours,
from a prior 103 and 93-1/2 hours for the respective two
biweekly periods prior to the election , were cut to 77; 43-
1/4; 35-114; 7-1/4; 0; 40; 0; 25. But, in early January
1967, prior to the January 5 election, a newly hired
mechanic, Weber, was placed on the payroll. For the
biweekly period ending January 7, Weber worked 40
hours, which , in view of his initial hiring date, indicates
that he worked the 40 hours in 1 week. For the 2 weeks,
ending in the same payroll date, January 7, Shepard had
a total of 77 hours, indicating that in the last week, when
Weber worked 40 hours, Shepard worked about 35 hours,
probably less. The figures for the following biweekly
periods are: January 21, Shepard , 43-3/4; Weber, 85;
February 4, Shepard, 35-1/4; Weber, 57; February 18,
Shepard, 7-1/4; Weber, 2; March 4, neither man worked;
March' 18, Shepard, 40; Weber, 31; April 1, neither man
worked; April 15, Shepard, 25; Weber, 0 (Shepard
discharged , April 13); April 29, Weber, 73-3/4; May 13,
Weber 102-3/4.24
Although Respondent has testified regarding the poor
state of its business and the need for retrenchment and
while we have concluded that this was, in general, the
fact , we also find that Respondent manipulated the situa-
tion to discriminate against Shepard. We have described
the facts pertaining to Shepard and Weber, above, and
these facts and others in the record , in our opinion, are
given no adequate explanation by Respondent . Dreiling
states, in the face of evidence in the record that we have
previously cited, that he did not know which employees
were union advocates and who had cast the three votes
for the Union. Dreiling then asserts as one of the reasons
for the cutback in hours, and he also told this to the em-
ployees on January 5, that since they had said that they
wanted a union because it would mean a 40-hour week,
they would get a 40-hour week. Obviously, the prounion
employees were the ones referred to, principally Shepard.
And, immediately after the election, Shepard suffered a
severe cut in hours.25 In fact , from that point on, he never
had even a 40-hour week. At the same time the Weber
situation was as described above. Cyril Dreiling and
Glenn, never had as little as a 40-hour week but substan-
tially more , and their hours, on average , after the election,
were substantially the same as before.
Regarding Weber , Dreiling's explanation is that "when
his [Weber's] hours were cut back , he brought in his own
customers." Weber had previously worked in another
shop and apparently had some following among former
customers. When Weber brought in a customer, Respond-
ent paid Weber for the hours worked on the customer's
car, with Respondent presumably billing the customer for
the repair job. Dreiling states that when Weber's hours
were down to the point "where he was working about the
same hours Mr. Shepard was ... he left us to find another
job." After Shepard's discharge, Weber returned to work
for Respondent at substantially increased hours.
Since Dreiling's testimony regarding Weber was no
more precise than we have described it, some analysis is
required. First of all, there is no explanation why Weber
was hired at a time when business was off and when a cut-
back in hours for present employees was imminent. Since
Dreiling states that Weber started bringing in his
customers after his hours were cut, it is necessary to
determine when this occurred. The first week Weber
worked for Respondent he worked 40 hours. Evidently,
then, he did not start work with a cut in hours. At the
start , there was nothing to cut since this was initial em-
ployment. Presumably, Weber did not start bringing in
customers at that point . In the next 2-week period , ending
January 21, Weber worked 85 hours, so there was an in-
crease in hours rather than a cut. Shepard worked 43-3/4
hours in the same period . Dreiling's explanation about
Weber's customers, therefore, does not explain the hiring
of Weber or the fact that he worked more hours than
Shepard, at least to January 21. It certainly is not clear
that Weber started bringing in customers after his first
week of employment.
In the February 4 pay period, Weber worked 57 hours
and Shepard worked 35-1/4. In the following pay period,
February 18, Shepard had 7-1/2 hours and Weber had 2.
This latter period apparently was when Weber quit as
described by Dreiling. The question is, when did Weber,
start bringing in his own customers . It would seem that
this occurred during the February 4 pay period, since this
was the first period since Weber had been hired that he
averaged less than 40 hours a week.
In any event, the conclusion is warranted that Respond-
ent put Weber to work at a time when it knew that it was
going to cut back the hours of Shepard. It is also clear that
Respondent's available work for mechanics was divided
among Cyril Dreiling, Shepard, and Weber and that, but
for the hiring of Weber, there would have been more work
for Shepard. Further, whatever proportion of Weber's
work came from Weber's customers, he also had other
work from Respondent on vehicles of Respondent's
customers . Prior to a cutback in Weber's hours, both he
and Shepard were performing repair work on Respond-
ent's customers ' cars. It was only when Weber's hours on
the foregoing work were cut that Weber began bringing in
his own customers . Considering that , after the last-men-
tioned point, Weber was supposed to be working on his
own customers' cars, it is striking that in the pay period,
February 18, both his and Shepard's hours showed sub-
stantially the same drastic cut in hours. Since the cut in
Shepard's hours was attributable to a lag in Respondent's
customers , this would appear the most appropriate time
for Weber to have resorted to his own customers. The
parallel drop in total hours for both men in this period
tends to indicate that in this and probably in prior periods,
Weber's hours reflected work for Respondent's
customers and not simply work for his own customers.
We have previously discussed various changes in con-
ditions of employment made by Respondent after the
election. Among other matters, we found that Respond-
ent did not generally eliminate the uniform allowance as
it had threatened to do on January 5. However, there is
24 Throughout , of course , Cyril Dreiling worked more hours than either
Shepard or Weber and always more than 40 hours a week.
15 As did Jackson and Gonzales.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence of some discrimination against Shepard regard-
ing uniforms. Respondent's practice was to pay for one
coverall per man each week; extra or additional coveralls
or parts of a uniform, if used by an employee, were
deducted from his pay. Evidently, the rental cost of one
coverall is about $1.30 or $1.75. For the biweekly pay
period ending February 18, 1967, Respondent, according
to Dreiling, began charging employees for the actual
number of uniforms used in the period that exceed the
quota of one uniform for which Respondent still paid.26 In
the February 18 pay period, Shepard worked a total of 7-
1/4 hours in the entire 2-week period. A sum of $3.50 was
deducted from his pay for uniforms. This indicates that he
used one uniform for which Respondent paid, plus two
additional uniforms at $1.75 each; or, he used one or two
uniforms, and Respondent paid nothing.27 There is no ex-
planation of how Shepard could have used three uniforms
to perform 7-1/4 hours' work. If he used two uniforms,
Respondent apparently paid for neither. Cyril Dreiling,
in the same period, worked 105-1/4 hours, and was also
charged $3.50, indicating the use of three uniforms.
Shepard did not work in the next period, ending March 4,
and there are no deductions. In the March 18 period,
Cyril worked 110 hours and was charged $3.50; Shepard
worked 40 hours and was charged $3.50. Shepard did not
work in the period ending April 1 and was not charged. In
the April 15 period, Cyril worked 11-1/4 hours and was
charged $3.50; Shepard worked 25 hours and was
charged $3.50. Shepard was discharged April 13.
In the absence of explanation in the record, the most
reasonable conclusion from the above facts is that in the
pay period ending February 18, Respondent either paid
for no uniform used by Shepard or made excessive
uniform deductions from his pay. This is also probably
true of the periods thereafter although it is not quite as
evident as with respect to the February 18 period. These
observations are consistent with Shepard's testimony that
Respondent paid for none of his uniforms after the elec-
tion, although probably, as we see it, this new treatment
did not commence until the period ending February 18.
Cyril Dreiling's testimony that with respect to himself, or
Jackson's testimony, that Respondent still paid for one
uniform per week for each of them, is not inconsistent
with the facts pertaining to Shepard. For the reasons
previously stated, we are of the opinion that Dreiling be-
lieved that Shepard had voted for the Union. Moreover,
on February 15, prior to the notable deductions for the
February 18 period (checks with deductions being paid
on February 22), Dreiling learned that Shepard was the
union steward. On that day Shepard and Waggoner, the
union representative, met with Dreiling for the first time
to commence contract negotiations. Dreiling, on that oc-
casion and at a subsequent meeting, expressed opposition
to Shepard's presence querying whether he was
authorized to represent the other employees. Dreiling's
knowledge of Shepard's role in the Union confirmed
Shepard's prior manifestations to Dreiling that he was
prounion. These factors are to be evaluated together with
Dreiling's bitterness against those who had voted for the
Union which necessarily would, a fortiori, be additionally
directed against the manifest leader among the prounion
employees, namely Shepard. The discriminatory treat-
ment accorded Shepard regarding uniforms followed
within a few days after February 15.
Shepard was discharged on April 13, 1967. Dreiling
testified that the employee was discharged because of
comebacks, i.e., work that had been performed by
Shepard that was later returned by the customer, with ad-
ditional work to cure the defect having to be performed
by Respondent without cost to the customer.
Shepard had been a mechanic practically throughout
his working career. As we have seen, he had worked as a
mechanic at Bill Dreiling Motors for 8 years where L. J.
Dreiling was the service manager.28 Cyril Dreiling had
also been a mechanic at Bill Dreiling Motors throughout
Shepard's employment at that Company. Both L. J. and
Cyril Dreiling knew Shepard and his ability as a mechanic
and presumably knew whether he was a reliable em-
ployee or not. L. J. Dreiling solicited Shepard to come to
work with him as a mechanic in the new business that
Dreiling started on August 1, 1966. It is reasonable to as-
sume that Dreiling, in commencing a new business ven-
ture on his own, would not have solicited Shepard, unless,
based on his knowledge of Shepard and his record as a
mechanic at Bill Dreiling Motors, he had confidence in
Shepard as a mechanic. Since Cyril Dreiling, a highly ex-
perienced and skilled mechanic, also came with the new
enterprise at the same time as Shepard, he was in a posi-
tion to have pointed out to his brother that Shepard was
not the right man for the new shop, as to ability or relia-
bility, if Cyril believed that such was the case. But
nothing of this nature occurred, and from August 1, 1966,
to the end of 1966, Shepard was a satisfactory mechanic
at Respondent's shop. There is no evidence of criticism
or dissatisfaction with his work during this period.
Obviously, Shepard, as well as any other competent
and experienced mechanic, was not perfect. Shepard
testified that over the years he had comebacks on his
work. In our opinion, a substantial number of owners of
about 80 million cars in the United States have had some
experience with comebacks, i.e., having to return un-
satisfactory repair work to a garage. But comebacks per
se are not generally an abnormal situation in automobile
repair. The nature and circumstances of the cause and the
responsibility for the comeback is a critical factor. Even
clear mistakes by employees in business and industry,
generally, do not, in most instances, result in discipline or
discharge absent definitive incompentence or careless-
ness. Dreiling, in fact, testified that every mechanic has
some unsatisfactory work.
We have previously seen that Dreiling was strongly op-
posed to having a union in his shop. Before the election he
told the employees at a meeting that if, with a union in the
shop, he could not run the shop as he wished and as he
thought it should be run then, if the Union wanted to, it
would have to force him out of business. At the first of
these meetings with the employees that Dreiling con-
voked, no one spoke up when he asked why-they wanted
a union or what were the advantages they saw in a union.
But, at a later preelection meeting, Shepard said, accord-
ing to Dreiling, that one of the advantages of a union was
a 40-hour week. Shepard also said at the meeting, accord-
28 Through error, a new office girl had neglected to make the proper
deductions for extra uniforms prior to this time.
27 Shepard contends that after the election, Respondent paid for none
of his uniforms. The record contains no documentation of uniform deduc-
tions other than the timesheets showing the total amount of uniform
deductions for individual employees for each biweekly pay period. We are
citing from these timesheets.
21 L. J. Dreiling had been with the Company about 20 years,
L. J. DREILING MOTORS CO., INC. 545
ing to Cyril Dreiling, that they have unions all over the
country and that the Union was coming into this shop.
The foregoing incidents occurred in December 1966, be-
fore the January 5 election. It is our opinion that Dreiling
had reason to believe and did believe at That time that
Shepard was prounion.
After the Union won the election on January 5, by a
vote of 3-2, Dreiling, on the same day, called a meeting
at which his bitterness and disappointment at the result
was clearly manifested. He stated that since employees
had mentioned a 40-hour week as one of the reasons they
wanted a union, that is what they would get.29 Dreiling
also stated to the employees that he was cutting out all
benefits and privileges such as coffeebreaks, Blue Cross
contributions by the Company, holiday pay, and uniform
allowances.30 Dreiling told the employees that by voting
for the Union they showed that they did not have trust in
him and what he had told them; he said that anything that
happened thereafter would be attributable to, and be the
fault of, the three men who had voted for the Union.31
The comebacks, for which Respondent asserts that it
discharged Shepard, were two, the Sichler Ford job and
the Howard truck job. Although Dreiling states that he
did not discharge Shepard because of the Johnson
comeback, he described the Johnson incident as an exam-
ple of repeat or comeback type work for which Shepard
was responsible. No other matters appear in the record
regarding Shepard's alleged deficiencies.
Johnson was an old customer. Dreiling, when asked
"when did that [the Johnson] episode take place" stated
that Johnson had a tuneup "the latter part of the year
1966, then he had that work done and the plugs put back
in. . . ." Shepard installed the new spark plugs and John-
son was charged for them. At some later date, apparently
March 8, 1967, the spark plugs were allegedly found to
be loose or so Johnson reported to Respondent.32
Johnson did not bring the car to the shop so neither Dreil-
ing nor anyone else could verify the customer's assertion.
Johnson had new spark plugs installed "at a filling station
over in Aurora" and presented the bill to Respondent
"because we had the job originally," according to Dreil-
ing. Respondent paid Johnson for the spark plugs that he
had installed at the filling station. Dreiling was asked:
Q. How many months after or weeks or what-
ever, after he [Shepard] did this job on Johnson's
car, was it that it came back?
A. I'd have to check my records. When you have
a customer for a long time, you pay it....
The culpability of Shepard in the above matter is highly
dubious. What appears is that Respondent, in the interest
of good customer relations, paid the customer for a set of
spark plugs, and did not verify or argue with the customer
over Respondent's responsibility. Neither Respondent's
nor Shepard's responsibility is apparent. If the plugs were
installed loosely, i.e., improperly in December, the opera-
tion of the engine would have been impaired initially. A
2-month lapse between installation and the report of al-
leged loose installation of spark plugs, the latter condition
being unverified by Respondent, indicates that Respond-
ent's act of reimbursement was a generous gesture to an
old customer. Aside from the dubious nature of Respond-
ent's or Shepard's responsibility for the looseness, the
normal remedy for looseness in spark plug installation,
particularly for relatively new plugs, is to simply tighten
the plugs, a job involving a matter of minutes.
The Sichler Ford incident involves a used 1963 Ford
passenger car sold by Respondent to a man named
Sichler. The car was sold about January 5, 1967. After
the car was sold, according to Dreiling, it was found that
"it smoked and used oil something terrible." Although the
car had been sold without a guarantee, Dreiling decided
to repair the engine "to keep a customer happy."
It is fairly apparent that the engine in the Sichler Ford,
3 or 4 years old in January 1967, was not in the best of
condition.33 We do not know the mileage on the engine
but it was probably substantial. The record discloses that
it was a V-8 engine and Shepard described it as a "hot"
or "souped up" engine. This indicates an engine of high
horsepower and high compression. When such an engine
reaches the age and condition of the Sichler Ford, there
are a great many things that can be done or not done in a
repair operation, depending on to what condition it is
desired that the engine be restored and how much you
wish to spend on parts and labor. 34
Dreiling's decision to repair the Sichler Ford engine
was transmitted to Shepard, the mechanic, by a work
order, written up by Billington, the service manager.35
The work order said to overhaul the engine. Such an
order is rather general since a complete major overhaul
would be equivalent to rebuilding the engine whereas
simply installing new piston rings could also qualify as an
overhaul.
Shepard tore down the engine. This means in substance
that he removed the cylinder head and the oil pan,
possibly the manifolds, so that the internal parts of the en-
gine could be viewed. Shepard concluded that the engine
21 We have discussed this aspect at an earlier point.
31 In addition to the various evidence concerning the January 5 speech
previously considered , we mention that Respondent 's counsel, in
questioning Dreiling about Company Blue Cross contributions, asked:
Q. Did you, ever at any time threaten to stop that?
A. At the one meeting right after the election.
31 Respondent 's counsel asked Dreiling,
Q. Did you, on or about the 5th of January of 1967, tell the em-
ployees or any of the employees that the three who voted for the
Union were responsible for whatever happened from then on.
A. I don't know how I said it.
Q. You what?
A. I don't remember exactly how I said it; I get a little carried
away; I don't know.
32 As testified to:
Q. What date was this last?
A. Tom Johnson on, 3-8 ....
"The basic internal combustion engine has been manufactured,
repaired, and used in this country and all over the world for over 50 years.
It is still used in about 99 percent of the cars today. The basic engine has
remained the same although it has been refined and developed over the
years. The basic mechanical elements of the engine are so well known and
so well documented in many manuals and textbooks that we have taken
official notice of these mechanical principles in our consideration of the
evidence pertaining to the Johnson, Sichler, and Howard repair incidents.
34 The old engine can be removed and a new engine can be bought from
the Ford factory (in the case of this car) and installed. This is very expen-
sive. Or a remanufactured engine, a used engine that has been completely
rebuilt in a factory engaged in such work, can be bought and installed. Or,
various parts may be replaced in the car engine and various operations
may be performed thereon What parts and what operations are chosen in
the last-mentioned situation depends upon the considerations mentioned
above in the text.
as Billington was not a mechanic but he had been in the business for a
substantial period of time at Bill Dreihng Motors and then with L. J. Dreil-
ing in 1966.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cylinders should be rebored because of excessive wear
and the pistons "were terribly loose." Shepard so advised
Dreiling but the latter said, no, stating that he did not wish
to spend that much money on the job.36 Shepard then in-
stalled new piston rings, connecting rod bearing inserts,
main bearing inserts, and had the valves ground. The
foregoing probably is an average overhaul and Dreiling
had given a clear indication that he did not wish to invest
too much in the Sichler Ford. Indeed, since Dreiling was
under no obligation to overhaul the car, any repairs were,
in effect, deductions from his profit on the original sale.
We have no criticism of Dreiling's position but the fact
remains that the Sichler Ford left the shop with many
things undone if its engine thereafter was expected to be
relatively trouble free.
Aside from Dreiling's not unreasonable make-do policy
in the circumstances of the Sichler Ford, this policy was
the general policy of the shop even on repairs for which
the customer was paying. This, too, as explained by
Dreiling, was not unreasonable. Thus, if a customer
brought in a car for repairs, some shops would, by in-
stalling all new parts and performing all possible opera-
tions, run the bill to a high amount. Dreiling, out of con-
sideration for the customer and believing that customers
were unhappy with such high bills, followed a policy, as
he described it, of being "fair and get the customer by as
reasonably as possible. . . ." This commendable policy
involves some risks, of course, on the matter of
comebacks. But it was the policy of the shop and was set,
not by a mechanic like Shepard, but by Dreiling. Absent
such a policy of reasonable make-do regarding repairs,
the easiest and simpliest course for an hourly paid
mechanic was to maximize the extent of the repair job. By
maximizing, the mechanic insures more hours of work for
himself. Moreover, maximizing would include putting in
new parts wherever possible and thus give greater as-
surance against comeback. A mechanic operating under
a make-do policy, such as was the case with Shepard, ob-
viously was subjected to the risk of comebacks.
Presumably, an employer, who laid down this type of
made-do policy, realized that there was a degree of risk
involved regarding comeback but apparently was willing
to assume the risk. Comebacks following repairs, after all,
are not a unique phenomenon as almost any owner of a
car, television, radio, washing machine, dishwasher, air
conditioner, lawnmower, or other appliance can testify.
After the Sichler car was overhauled in early January
by Shepard, as described above, it was returned to the
shop on January 30 or 31, 1967. Oil was found to be leak-
ing at the rear of the intake manifold. Shepard was not in
the shop at this time since his hours had been cut to a total
of 35 for the entire 2-week period ending February 4.
Cyril Dreiling removed the intake manifold from the en-
gine and found that the manifold gasket was not seated
properly, thus causing the leakage of oil. Dreiling testified
that this job involved about 8 hours of labor and $24 in
gaskets.37 Cyril did not testify as to the time he spent on
the job or as to the cost of the gaskets used. Dreiling
testified that when Shepard came back to work, sometime
around the middle of February 1967, Dreiling mentioned
to him the fact that the Sichler Ford had come back with
an oil leak at the rear of the engine during Shepard's
absence and that Cyril Dreiling had fixed it. Dreiling said
to Shepard that the repair cost $40 and took 8 to 9 hours.
Cyril Dreiling testified that, on the Ford, the intake
manifold is installed over a gasket that runs all the way
around, front and rear. The witness stated that the gasket
is "a little thin gasket" that is placed on a narrow metal
strip and "if that happens to slip off when you are putting
the manifold on there, why then it leaves a gap" through
which oil will leak from the engine. Cyril stated that there
was a standard installation procedure, to wit, you "put the
gasket on there" and then place the manifold over it. Both
Cyril and Shepard agreed in their testimony that the
manifold on this car was very heavy and that, in maneu-
vering it into position on the engine and over the "thin
gasket," it was possible for the gasket to slip out of its
correct position. Cyril expressed the opinion at the hear-
ing that the gasket on the Sichler Ford manifold must
have been installed faultily by Shepard when he over-
hauled the engine on January 5. Cyril's testimony in-
dicates that in his view the faulty installation probably oc-
curred by reason of the gasket slipping out of position as
Shepard placed the manifold over it.
Shepard states that the oil leakage that occurred on the
Sichler car on the aforementioned occasion could have
been caused by the gasket slipping while the manifold was
being installed; or the gasket could have been moved or
forced out of position by blow-by from the engine, the
blow-by being attributable to the worn condition of the
cylinders and pistons.
There appears to be no question that oil was leaking
from the car and that the gasket was out of its proper posi-
tion on January 30. We are prepared to accept Cyril
Dreiling's opinion that the gasket slipped out of position
when installed during the overhaul performed by Shepard
on January 5. It was Shepard's responsibility to install
the manifold and gasket correctly. 38
Dreiling had testified that all mechanics make mistakes
which is obviously a correct observation. The implication
is that some mistakes are tolerable. The implication of
Dreiling's testimony that he discharged Shepard because
36 When the cylinders in an engine, a series of eight round holes in the
engine block, are worn, the pistons that move up and down in the cylinder
do not fit snugly in the cylinder and this is also true of the piston rings. The
pistons themselves, in an old car, will also have undergone some wear. All
these factors can affect compression and oil consumption. Respondent's
repair shop and most others do not have the equipment to rebore an en-
gine. Reboring, therefore, entails removing the engine from the car, taking
it to a machine shop for reboring, getting the rebored engine after a half
day or more in the machine shop, and installing it in the car. The labor in-
volved in removing and reinstalling an engine is considerable and the
machine shop , of course, charges for the reboring. A rebored engine
requires new pistons and piston rings
37 Cyril Dreiling's rate was $2.70 per hour, therefore, under Dreihng's
figures, there was $21.60 in labor and $24 in parts or a total of $45.60.
31 What has been troublesome to us is that if the gasket was out of posi-
tion at the time of installation on January 5, the oil leakage would begin
immediately. A direct leak like this would be directly reflected in the car's
oil consumption and this would occur right after the January 5 overhaul
Sichler was evidently quite alert as far as bringing the car back to Respond-
ent when it used oil. Dreilmg testified that after he sold the car to Sichler,
the latter brought it back to the shop "many times" because it was using
oil. Respondent finally overhauled the engine on January 5, as described
above The car presumably began using oil immediately thereafter if the
manifold gasket had been installed improperly by Shepard. Yet, it is al-
most a month later before Sichler brings back the car, a fact more con-
sistent with the theory that the gasket moved or was moved by some con-
dition subsequent to its installation and that, with this postinstallation oc-
currence, the oil leakage began, and the car was then brought to the shop
by Sichler.
L. J. DREILING MOTORS CO., INC. 547
of comebacks on the Sichler Ford and the Howard Truck
is that some mistakes are not tolerable. We agree that
some mistakes are not tolerable. The question at this
point is whether Dreiling regarded the comeback over the
Sichler gasket, above, as a serious dereliction on
Shepard's part or was it used as a convenient pretext in a
planned buildup in a pattern of discrimination against
Shepard that included, in the period following the elec-
tion, Dreiling's expressed resentment against those who
had voted for the Union and the discrimination against
Shepard on the matter of uniforms, hours of work, and the
general reprisal of the immediate discontinuance of cof-
feebreaks.
One indication of the motivation involved is that, in our
opinion, both at the hearing and to Shepard, in February
1967, Dreiling exaggerated the cost of the Sichler gasket
comeback. We credit Shepard's testimony that the
removal of the manifold and the replacement thereof with
the gaskets would not involve more than 2 or 2-1/2 hours'
work. Dreiling gave the figure of 8 hours work. The work
was performed by an experienced and competent
mechanic, Cyril Dreiling, and, as indicated, we credit
Shepard.35
We also are of the opinion that Dreiling exaggerated
the cost of the gaskets. He gave the figure as $24. I do not
have access to the price list of various automobile parts
dealers. However, there are available the prices of one of
the largest national retail merchandisers in the United
States, Sears Roebuck and Company. We take official
notice of the Sears catalog, Spring-Summer 1967, in
which 74 pages are devoted to automobile parts and ac-
cessories. At page 862 of the foregoing, intake manifold
gaskets for 1958-65 Ford (for engines of 332, 352, 390,
406, and 427 cubic inches) are priced at $1.45. The
shipping weight is 8 ounces. We believe that the above
products can be regarded as of average good quality and
that Respondent, being in the car repair business, can
probably purchase automobile parts from its suppliers at
a price equal to, or probably lower than, Sears' retail price
to mail order customers. However, for the purpose of
discussion, we will arbitrarily double the above gasket
price to $2.90. This, plus Cyril Dreiling's labor at $2.70
per hour for 2-1/2 hours, gives a total of $10.65 for the
Sichler Ford gasket comeback. The figure by Dreiling
was $24 for gaskets, plus 8 hours labor or a total of
$45.60. The comeback repair was at no cost to the
customer so profit mark-up is absent.40
Quite clearly, an employer may discharge an employee
for or consider as one of the elements in a decision to
discharge an employee the fact that the employee has a
comeback on his work. This is true regardless of the cost
of the comeback. However, our interest in Dreiling's ap-
parent exaggeration of the cost of the Sichler comeback,
above, is the manifestation thereby of a discriminatory
disposition toward Shepard and a disposition consistent
with the other instances cited earlier herein of discrimina-
tion against Shepard.
In addition to the Sichler Ford matter, Dreiling cited
the Howard Electric Company truck comeback as the
reason for Shepard's discharge. Howard had over 100
trucks and Dreiling testified that he had the repair work
on these trucks which involved a monthly account in the
amount of $1400 - $1500.
Before considering the Howard truck incident, some
comment is in order regarding Cyril Dreiling, in addition
to what has previously been said about his background.
Although not a supervisor, Cyril was, in effect, Respond-
ent's chief mechanic. In addition to being Dreiling's
brother, Cyril was the most mature and experienced
mechanic in the shop. When there was a question about
a mechanical matter of car or truck repair, Cyril was con-
sulted. Cyril testified that Shepard consulted - him
frequently.
A Howard truck was brought to the shop on January
21, 1967. Billington states that the work order he
prepared provided for engine overhaul and to check
power steering and the winch on the truck. Shepard was
assigned the job. Apparently the power steering and
winch were all right, or if there was anything wrong on
these scores, he corrected it. This conclusion follows
from the fact that, on a subsequent return of the truck, the
steering and winch were found to be satisfactory. As to
the prospective engine work on January 21, Shepard tore
down the engine. Cyril testified that Shepard spoke to
him about the condition of the engine. Cyril states that
one cylinder was found to be gouged and that the piston
was bad. There was a discussion whether the engine
should be taken out for reboring of the cylinder. The deci-
sion by Cyril was not to do the foregoing but to hone the
cylinder and install an oversize piston in the damaged
cylinder.41 Both Cyril and Shepard checked the condition
of the crankshaft with a micrometer to ascertain the con-
dition of the throws or journals of the crankshaft .42 Close
tolerances are necessary on the throws or journals of the
crankshaft since the rod and main bearings fit onto these
portions of the crankshaft. If the crankshaft is flat or out
of round, it is necessary that it be ground with special
equipment in, or from, a machine shop. Very few garages
have such equipment or the men competent to operate it.
Respondent used an outside machinist for such work.
The question of when a crankshaft should be reground is
a matter of judgment arrived at when the mechanic
checks the crankshaft with a micrometer. In any event, it
was decided on January 21 not to have the Howard
crankshaft reground. Cyril testified that he expressed the
view that the rod and main bearings on the truck should
be replaced.43
We are satisfied that the above decisions as to the ex-
tent of the work to be performed on the Howard truck
and the things to be done and not to be done thereon were
basically the decisions of Cyril, the senior or chief
mechanic, whom Shepard consulted by reason of Cyril's
experience and status.
39 Shepard had removed and installed the manifold and gasket on
January 5. Cyril did the job on January 31, and gave no testimony as to
the length of time involved
4° Notwithstanding our opinion regarding the approximate cost of the
intake manifold gasket, we make no finding thereon and confine our find-
ing to the fact that Dreiling exaggerated the amount of labor involved.
41 As elsewhere explained, reboring involves removal of the engine and
the use of special equipment. Reboring, in effect, cuts out all defects in the
existing cylinder and makes a new, albeit larger cylinder. A hone is an at-
tachment to an electric hand drill. It is used while the engine is in the vehi-
cle. The hone rotates in the cylinder and smoothes out minor defects but
does not have the capability of a reboring machine which can, as in-
dicated, cut out a new cylinder.
41 The expression is "to `mike' the crankshaft." The transcript
reproduces this as, they "mucked" the crankshaft. Phonetically, the term
is closer to "mike" than to "mick."
43 The crankshaft checking necessarily involved disconnecting the
bearing caps and the condition of the bearings became thereby visible.
336-845 0 - 70 - 36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing Shepard testified that on an engine over-
haul situation such as existed on the Howard truck on
January 21, the oil pump should be replaced in order to
insure successful future performance. The oil pump is an
essential factor in pumping oil to the bearings and so forth
in the engine and replacing the existing oil pump in an en-
gine overhaul certainly is good insurance for subsequent
successful performance of the engine . Cyril of course
knew as much, if not more, about the function of an oil
pump as did Shepard. Replacement of the oil pump, un-
less it is completely inoperative is, once more, one of the
things that can be done during an engine overhaul or can
be left undone, depending on the policy of the repair shop
under all the circumstances. The condition of the oil
pump during an overhaul can only be determined by
removing it from within the engine, dismantling it, and
ascertaining the condition of the parts thereof. Neither
Cyril nor Shepard checked the oil pump on January 21
nor did they discuss its checking or replacement. As
stated, both mechanics were undoubtedly aware that the
oil pump aspect, like the question of reboring a cylinder
or cylinders or grinding the crankshaft, was something
that could have been done or not done, depending on how
extensive an overhaul the shop wished to do.44
It is our opinion that the evidence warrants the conclu-
sion that on the Howard overhaul on January 21,
Respondent followed its policy of what it considered
reasonable make-do. This does not necessarily mean that
the policy determination reflected incompetency or
negligence , but it did mean that in not doing all the repair
operations that, not unreasonably, could have been done'
to insure against further trouble, Respondent was taking
a calculated risk. In some such situations , the risk might
have been proved to have been calculated correctly but,
in others, the risk could result in a comeback. As Dreiling
testified, the shop performed repairs on the Howard truck
on January 21 for which it charged the customer $265 but
it could have replaced various parts and performed opera-
tions that, according to Dreiling, could have run the bill
to $600. Dreiling gave this testimony in explaining the
shop's reasonable make-do policy toward customers.
The end result of all this was that the engine overhaul
on the Howard truck performed by Shepard on January
21, after consultation with Cyril, and, basically, with
Cyril's advice and direction, consisted of honing one
gouged cylinder; replacing the piston in that cylinder;
placing new piston rings on all pistons; replacing rod and
main bearing inserts; having the valves ground at an out-
side machine shop. The oil in the engine was of course
drained out and replaced with new oil. A new oil filter
was not installed because, according to Shepard's uncon-
troverted testimony, Billington told him not to replace the
oil filter.45 Operations neither prescribed by Cyril nor
performed by Shepard were: neither the gouged cylinder
nor other cylinders were rebored; only one piston was
replaced; the oil pump was not replaced; the crankshaft
was not reground; there is no evidence that the connect-
ing rods were aligned and new wrist or piston pins in-
stalled. While there are other things that could have been
done, the ones mentioned as not being done, bore a close
functional relationship to the limited overhaul that was
performed and their omission was a calculated exercise
of judgment dictated by shop policy.
Dreiling testified that, upon completion of the January
21 overhaul, since "one cylinder was scorred just a little
"411 "We" told the Howard people "that it would use
a little oil through that one cylinder, trying to take the
blame off our back." That is, Respondent was aware that
the overhaul was of a limited nature and that the per-
formance of the engine would leave something to be
desired; and, in order to protect Respondent from sub-
sequent complaint from Howard regarding the engine,
Respondent told Howard, when Howard picked up the
truck, that Howard could expect less than perfect per-
formance owing to the scorred cylinder (which had not
been rebored, a fact not mentioned).
The Howard truck was returned to Respondent on
March 14: Billington told Shepard to check the engine.
Dreiling states that "we" checked the truck. An oil leak
was found to exist at the rear lower part of the engine and
Shepard removed the oil pan from the underside of the
engine. It was found that the rear main bearing had been
burned out and the rear main oil seal had been knocked
out.47 Dreiling testified that, when the rear main oil seal
was kicked out, the truck apparently had lost oil and it
had to be towed to the shop. Dreiling also testified that
the Howard people told him that, possibly, at some time
after the January 21 overhaul, they might have run the
truck with insufficient oil.48
Cyril, as well as Shepard, looked at the engine after
Shepard had removed the oil pan. They observed the
burned out rear main bearing and the smashed oil seal.
Cyril "miked" the crankshaft with a micrometer and
recommended a new rear main bearing and a new rear oil
seal. The journal on the crankshaft on which the rear
main bearing rested was also reground at the same time.49
44 Cyril's awareness of the oil pump aspect is not denied and his
testimony implies that he was aware of it since he testified that "I am not
quite sure whether we put in an oil pump at that time or not " Shepard's
testimony and Billington's, as well as other evidence , satisfied us that the
oil pump was not replaced on January 21 and that if Cyril had told
Shepard to replace the pump, the latter would have done so as he replaced
the bearings at Cyril's suggestion . Shepard was paid by the hours he
worked ; he was working very few hours in the period after January 5 and
if he was told to replace the pump or felt that he could determine the pol-
icy as to the extent of the overhaul he probably would have done as many
different tasks in the course of the overhaul as possible.
45 The oil filter is attached to the outside of the engine . It is commonly
replaced when oil is changed and is a minor operation quite generally per-
formed at a filling station . The function is to filter dirt or particles from the
oil so as to prevent abrasion of the bearings and other parts of the engine.
The oil pump , on the other hand, is within the engine and cannot be
reached unless the oil pan under the engine is removed . On an overhaul,
such as occurred on January 21, the oil pan of course had been removed.
48 We have described the facts relating to this cylinder , including the
fact that Cyril decided not to have the cylinder rebored.
41 Cyril testified that the rear main bearing takes the major thrust of the
engine In short, the power of the engine rotates the crankshaft and the
bearings are attached to the crankshaft. The principal power from the
crankshaft goes out the rear, on the rear main bearing , and is ultimately
transmitted to the drive shaft and the rear wheels.
48 Billington states that there was plenty of oil in the truck on March 13.
This, of course, even if true does not establish that, in the month and a half
since the overhaul, the truck had always been run with sufficient oil. It is
unlikely that the customer, Howard, would have admitted to the possibili-
ty that it had run the truck with insufficient oil unless there was some basis
for such an admission. Possibly, after the truck developed an engine noise
(which would occur because of the burning out of the rear main bearing,
plus an accompanying loss of oil because of the condition of the bearing
and seal), the Howard people found that the oil was low or absent and had
added oil in an effort at correction before bringing the truck back to
Respondent for repair.
41 There are separate journals on the crankshaft on which each bearing
rests. The main bearings are rear, center, and front with a series of rod
bearings interspersed at regular points.
L. J. DREILING MOTORS CO., INC. 549
Shepard then installed a new rear main bearing and oil
seal. As far as appears this stopped the oil leak. As
Billington testified, "we just replaced the bearing ... we
[had] told him [Shepard] if that fixed the [oil] leak, go
ahead and replace it." The reference "we" and other
evidence of participation is indicative that on the Howard
truck and on other repair jobs, including the Sichler Ford,
there was joint consultation and participation regarding
the repairs to be made, involving Cyril, Billington,
Shepard, Dreiling, in varying degrees, with Shepard per-
forming the actual repair work. There was no charge to
Howard for the repairs.
At the hearing, Shepard mentioned various reasons
why the rear main bearing might have burned out. The
truck might have been run with insufficient oil; the truck
might have been run too hard too soon after the overhaul
on January 21; the bearings might have been of poor
quality (at the January 21 overhaul Shepard had told
Billington that he did not like the quality of the bearings
furnished to him for installation); the new bearing that
had been installed on January 21 might have been in-
stalled improperly. But, as to the latter, Shepard stated
that there was only one way to install the bearing and to
install it improperly, i.e., backwards, it would have been
necessary to force the bearing in. There is no evidence
that the bearing had been installed improperly. For a
mechanic of Shepard's experience, the installation of a
bearing was a task that he undoubtedly had performed
dozens or hundreds of times. We do not believe that the
bearing was improperly installed or that Respondent had
such a belief.
About 30 days later, April 13, 1967, the Howard truck
was returned to Respondent's shop. Billington told
Shepard to check the oil pressure and check on an engine
noise. The oil pressure was found to be low. Shepard tore
down the engine and found that a connecting rod bearing
had burned out. He consulted Cyril and the latter looked
at the burned out bearing. It was decided that the throw
or journal on the crankshaft supporting the burned out
bearing should be reground and the grinding was per-
formed by an outside mechanic who specialized in such
work. New bearing inserts were then installed by Shepard
to replace the burned out bearing. A new oil pump was
also installed by Shepard as directed by Billington. This
was the extent of the repair work on the Howard engine
whose history in the shop indicated that its condition was
such that Respondent's policy, at least on this engine, of
make-do and patch work repair was quite evidently not
going to obviate recurring comebacks.
Cyril Dreiling states that on April 13 he suggested that
all the bearings be removed and checked but he did not
know whether or not this was done. We doubt this
testimony for several reasons. Cyril testified that, regard-
ing the burned out rod bearing, "we" had the throw on
that portion of the crankshaft ground and replaced the rod
and bearing. Since an outside mechanic had to come in to
grind the crankshaft and since he was paid for what he
performed, he shop was aware what grinding this man
was told to, do and what work he performed or did not
perform. The only grinding that could be performed on
the crankshaft was on those throws or journals from
which the bearings had been removed. The burned out
bearing, as Cyril and others in the shop knew, was the
only bearing removed. If the shop contemplated the pos-
sibility of crankshaft grinding on other journals, the other
bearings would have been removed to expose the
crankshaft journals to checking. And if the bearings were
removed, they necessarily were exposed to inspection.
Since the engine was already torn down, the removal of
the other bearings would have been a relatively easy and
brief job. But none of these things were done and, in our
opinion, were neither directed nor suggested. The shop
ordered an outside man to come to the shop and grind one
journal. This is what he did and the shop, including Cyril,
Billington, and Dreiling knew it.50 If Shepard had been
directed to check all of the other bearings he would, in our
opinion, have done so since he was paid for his time and
his hours had been drastically reduced. If the shop was in-
terested in having the other bearings checked, Shepard
would have been directed to do the work and, when the
bearings were taken down, they would have been in-
spected by Cyril and others in the shop to decide whether
particular bearings, or which ones, should be replaced
and should have their crankshaft journals ground when
the crankshaft man came to the shop to grind the journal
for the burned out bearing.
What occurred, in our opinion, was a shop policy deci-
sion , involving Dreiling, Cyril, and Billington. Shepard's
role was to tear down the engine and discover the im-
mediate problem. The minimum repair was to grind that
crankshaft journal and to install a new bearing. How
much more the shop wished to spend on the repair, in
labor and materials, was a policy decision by the shop and
not by Shepard. The latter was being paid for hourly
labor, and new parts, of course, did not come out of his
pocket. As with the March 14 repairs, the April 13
repairs were being done by the shop without charge to the
customer since the shop had overhauled the engine on
January 21 for $265. Dreiling described the situation and
makes it clear that shop policy was determinant as to
repairs on April 13 as had also been the case previously.
According to Dreiling, when asked at the hearing whether
the mechanic assigned to a job was given a general man-
date to do whatever was needed on the motor,
We don't have a large operation out there. It is a
small one, and usually, [when a vehicle comes into
the shop], they [Cyril, Billington , Shepard] just talk
to each other and they say, well, like on this one here
[the Howard truck burned out bearing incident on
April 13], we turned the one throw [on the
crankshaft] ; we realized we were going to have to
pay for everything so we were going to go, try to get
back, being it was a come-back, we were going to try
to get back [to get by], naturally as cheap as possi-
ble .... [the shop wanted to make the minimum in-
vestment in time and labor on this come-back job and
this is what was done; it was a policy decision, ulti-
mately set by Dreiling, plus Cyril and Billington,
with Shepard being primarily the performer of the
work decided upon].
Respondent's policy of endeavoring to get by "as cheap
as possible" on the Howard truck comebacks was also
true as to the Sichler Ford comebacks.
In the matter of these two vehicles, Respondent's pol-
icy did not work out very well. After the April 13 repair
of the Howard truck involving the one rod bearing, the
truck went about 2 miles after it was taken from the shop
by a Howard driver. The truck broke down and was
returned to Respondent's shop evidently on April 14.
Billington states that it was the day after the rod bearing
10 Dreiling testified that "we" had one throw turned (ground).
550 DECISIONS OF NATIONAL
had been installed by Shepard . Apparently, Shepard had
been already discharged and did not participate in
anything that occurred when the truck was returned the
last time. Dreiling states that on this last return to the
shop, the motor was taken down and it was found that
another rod bearing had burned out. This was an admit-
tedly different rod bearing than the one replaced by
Shepard on April 13 under the circumstances previously
described.
At the hearing, Dreiling opined that Shepard might
have left the caps loose on the bearing and that this
caused the trouble . However, this was not the bearing on
which Shepard worked on April 13 so there appears to
have been no reason to conclude that he left the caps
loose.51 Indeed , at another point, Dreiling states that
Shepard, on April 13, should have taken down and in-
spected all the bearings , implying that he did not do so
and consequently had no occasion to do anything pertain-
ing to the other bearing caps either as to loosening or
tightening . Cyril, who took down the engine on its last
return to the shop , testified that , as to the particular bear-
ing that failed after the truck left the shop on April 13, he
found that the two bearing inserts had been worn so thin
they were like a "knive edge" and that one had slipped on
top of the other . He testified that it was also found when
the other bearings were removed that three or four were
badly worn . As Cyril indicated and as appears to be the
fact , the above conditions did not occur overnight but ex-
isted on April 13 when the previously described make-do
policy of replacing only the one burned out bearing was
prescribed by the shop and executed by Shepard. Cyril
says nothing about improper installation and there is no
evidence that he made any such comment to Dreiling. His
conclusion was, "the only thing I can think of' was that
the "bearing must have been bad ... it must have been
worn pretty bad ... it must have went out, got too loose."
In any event , after Cyril's examination , above described,
the patching and make-do measures were abandoned.
Respondent removed the old engine from the Howard
truck and replaced it with an entire engine block. In
retrospect , at least , either this measure or more extensive
earlier repairs, might have been a better course than that
which had been dictated by Respondent's shop policy of
minimum repair.52
The last chapter on the Sichler Ford concerning which
Respondent's shop repair policy had been the same as
with respect to the Howard truck , occurred on April 13,
the day when the Howard truck's burned out rod bearing
had been replaced . The Sichler car was in the shop that
day. Shepard was directed to check the compression. He
did so and found no compression in one cylinder and low
compression in another . He reported this to Billington as
well as his opinion that the engine had either a bent push
rod or a loose valve . Billington consulted Dreiling and the
latter discharged Shepard , saying that he could not
tolerate any more come -backs, citing the Sichler Ford
and Howard truck comebacks.53
Without repeating the detailed description and analysis
of the facts pertaining to the Sichler and Howard vehi-
cles, it is our opinion that the evidence establishes that
the one instance in which Shepard performed his work in
a deficient manner was early in January when he over-
51 The bearings are held in position in the crankshaft journal by two
heavy metal caps or collars that are bolted to the connecting rod.
52 After the Howard truck affair, Respondent 's business with this
customer declined drastically.
LABOR RELATIONS BOARD
hauled the Sichler Ford, and then only in a relatively
minor manner. In replacing the intake manifold, the thin
gasket under the manifold apparently slipped while the
manifold was being installed. This resulted in the car
being returned to the shop about 3 weeks later with an oil
leak, where the above gasket had slipped from its proper
position. Of course Respondent could have discharged a
mechanic because of the foregoing or for a lesser or no
reason. But, in view of Shepard's long history of com-
petent and reliable work with Dreiling, we do not believe
that the gasket incident, under normal circumstances in
Respondent's shop, would have led Dreiling to contem-
plate discharging Shepard. We regard Dreiling's exag-
geration of the costliness of repairing the gasket, both at
the hearing and in speaking to Shepard in February 1967,
as indicative of a bias not normally to be expected if only
objective factors were involved. Dreiling admitted and
everyone knows that mechanics and other human beings,
on occasion, do unsatisfactory work. An oil leak in a car
due to an improperly seated gasket cannot be regarded as
a rarity, even in new cars, albeit everyone will agree that
gaskets should not be seated improperly on any car.
The Sichler car was a 3- or 4-year-old-used car and the
overhaul that was performed on it early in January would
not have been performed by Respondent unless the motor
was in decidedly poor condition. This for the reason that
it was a used car and had been sold without guarantee.
Respondent performed the minimum repair at its own ex-
pense, but, since this minimum was fairly extensive, it in-
dicates that the motor's condition was poor. There were
a substantial number of repair operations that were not
performed and many parts that were not replaced at the
time of overhaul. The omission of the foregoing made the
performance and reliability of the engine thereafter
problematical. There was a calculated risk involved as to
the possibility of future comebacks. Respondent had
years of experience in the car repair business and was
aware of and took the risk. The risk was the result of a
policy decision by Respondent and was not the responsi-
bility of the mechanic, Shepard, who performed the
repairs and the extent of the repairs pursuant to shop
direction. The replacement of the Sichler car push rod
and rocker arm on April 13 had nothing to do with
Shepard's work on the car. The original overhaul in-
volved neither of these parts although they might well
have been replaced if a complete overhaul had not been
subordinated to the shop's make-do policy in the circum-
stances previously described.
The same conclusion, in our opinion, is warranted re-
garding the Howard truck. If the facts regarding the truck
are borne in mind, it is apparent that on the first occasion,
January 21, the truck motor was in poor condition. Even
under Respondent's limited and make-do policy, a $265
overhaul was necessary. Admittedly, the overhaul could
have been more extensive and it left many things undone.
But this again was shop policy and not Shepard's. The
evidence does not establish that Shepard's repair work on
the truck was incompetent or negligent. A number of fac-
tors, previously described, could have caused the rear
main bearing to fail on March 14. The evidence indicates
that the most likely cause was that the truck had been run
with insufficient oil, as the customer admitted might have
53 Billington testified that the Ford had no compression in one cylinder
and that Cyril then installed a new push rod and rocker arm. The rocker
arms of course have a direct relationship to the valves.
L. J. DREILING MOTORS CO., INC. 551
been the case. Also, the oil pump had not been replaced
at the January 21 overhaul and this would affect the
supply of sufficient oil to the bearing. We note that the oil
pump was replaced on March 14, as well as the bearing.
Further, the truck, as a commercial vehicle, may well
'lave been subjected to severe usage after the overhaul,
possibly by a number of different drivers of the Howard
Company with varying degrees of competency and sense
of responsibility toward a vehicle not owned by them as
individuals. Much the same can be said of the burning out
of a rod bearing on April 13 and another rod bearing soon
after Shepard replaced the first rod bearing pursuant to
Respondent's make-do policy of getting by as "cheap as
possible" on comeback jobs. Indeed, the fact that the en-
tire Howard motor had to be replaced on April 14, in-
dicates: (1) this should have been done on January 21; or
(2) the January 21 overhaul should have been much more
extensive than it was; or (3) the limited January 21 over-
haul, plus possible severe and negligent operation of the
truck after January 21, caused the rear main bearing to
fail as well as the subsequent failure of two rod bearings,
with confirmation supplied by the fact that on April 14,
almost all bearings were found to be severely worn (and
it was necessary to replace the motor), a condition that
could not have been caused in a few days but probably
occurred between January 21 and April 14. On January
21, and thereafter, the extent of the repairs was dictated
by Respondent's shop policy and not by Shepard. The
evidence does not establish, in our opinion, that the repair
operations performed by Shepard were deficient.
In view of Respondent's many years in the car and
truck repair business, we believe that Respondent was
aware of the facts described and analyzed hereinabove.
We have presented the facts in detail because we regard
it as a conscious oversimplification on Respondent's part
to say that because there were comebacks on two vehi-
cles on which Shepard worked, Shepard was therefore
known to be responsible for the comebacks and was
discharged for that reason. It is our opinion that Dreiling
knew that Shepard was a good mechanic and a reliable
one. Dreiling testified that Shepard "is a good mechanic"
but said that "something happened to the man." What-
ever happened, apparently did not happen until January
1967, with the advent of the Union. Dreiling said he did
not know "whether he [Shepard] had lost faith in us, or
what it was."
The evidence reveals that this matter of faith and trust
in Dreiling on the part of his employees was a pervading
factor in Dreiling's attitude toward the idea of having a
union in the shop and in his attitude toward a union par-
tisan, such as Shepard. In the preelection meeting with
the employees in December 1966, Dreiling's theme was
that a union was not needed and that the employees
should trust Dreiling and have faith in him. Indeed this
was Dreiling's approach to Shepard and others in solicit-
ing them to come to work with him in his new company in
August 1966. After the union victory in the election,
Dreiling bitterly told the employees that, by voting for the
Union (the three that did), they had showed that they did
not believe in him or in what he had said and showed their
lack of faith by voting for the Union. As previously
described, Dreiling promised immediate reprisals, some
of which were carried out as to the entire shop and some
that particularly affected Shepard.
The very foreseeable consequence of the drastic cut in
Shepard's hours after the election was that he would quit,
as Gonzales, in fact, did. In the biweekly pay periods,
commencing with that ending on January 21, to the
period ending March 4, a total of 8 weeks, Shepard
worked a total of 76-1/4 hours or an average of 9-1/2
hours per week. While the preferment to Cyril Dreiling
on the matter of hours is understandable, a more equita-
ble allocation of hours, albeit with the lion's share to
Cyril, would be expected, if an employee was interested,
as a matter of pure self-interest, in retaining its other
mechanic, Shepard. The facts would indicate that Dreil-
ing had minimum interest in whether or not Shepard quit
and he was probably surprised that Shepard did not leave.
This attitude is surprising in one way but is understanda-
ble from another point of view. Respondent apparently
did not contemplate operating with only one mechanic,
Cyril. Why, then, the apparent lack of concern with
whether Shepard left or not? The answer is that Dreiling
hired Weber early in January when he knew that he was
going to cut back on Shepard and others. And when
Shepard finally left in April after being discharged, Weber
came back and worked substantially full time as con-
trasted with the approximately 12-1/2 hours a week that
Shepard worked in the approximately 2 weeks prior to
Weber's return, when, after his return, Weber immediate-
ly worked 73-3/4 and 102-3/4 hours.54
Since Shepard did not do the foreseeable thing, namely
quit, Dreiling then turned his attention to Shepard's al-
leged incompetency and for the first time in nearly 9 years
of the association of the two in automobile repair, Dreil-
ing found alleged culpable deficiencies in Shepard's per-
formance regarding repair work. These alleged deficien-
cies pertained to the Sichler and Howard vehicles, previ-
ously described, and occurred in the period between
January 21 and April 13, 1967.
Shepard testified that at the first contract negotiation
meeting, February 15, 1967, at which Waggoner and
Shepard were present for the Union and Dreiling for the
Company, various matters were discussed. Among other
things, Dreiling asked Waggoner on what grounds an em-
ployee could be discharged and whether employees could
be discharged for comebacks. Waggoner apparently did
not answer the questions directly but said, in effect, that
an employee should receive a formal warning at some
point and should not be discharged unless such a warning
was given.
As has been indicated at an earlier point, it was at the
first contract negotiation meeting, on February 15, that
Dreiling learned that Shepard was the union shop steward
and that he would participate in the negotiations. At this
first meeting and at the second meeting on March 2,
1967, Dreiling challenged Shepard's right to be present as
a representative of the employees. These facts are not
disputed.
Waggoner testified that early in March 1967 Dreiling
telephoned him and asked what he, Dreiling, could do
about two of his employees, Shepard and Jackson. Dreil-
ing said that the work of the two men was not good; that
Jackson's work was sloppy and that there were two or
three comebacks on Shepard. Dreiling said he could not
stand comebacks but, according to Waggoner, Dreiling
did not indicate that he was going to take any definitive
54 The indifference of Dreiling to whether or not Shepard quit began im-
mediately after the election and before Dreiling had raised any question as
to Shepard's competency
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action. Waggoner states that he told Dreiling that the
latter would have to do what he felt was necessary.
Around March 27, Waggoner states that he received
another telephone call from Dreiling. Dreiling said that he
thought he should discharge Shepard because "he did not
have the work there for him to do" and that Shepard was
only getting "a day [of work] now and then." Dreiling ex-
pressed himself as feeling that "Shepard was too good a
mechanic for these few hours" and indicated that if he,
Dreiling, discharged Shepard, the latter "could go some
place else and get a good job." Waggoner replied that this
was not the way to go about it but that Shepard should be
allowed to make up his own mind whether to leave or not.
At the hearing, Waggoner stated that Dreiling gave no
reason why he wanted to discharge Shepard other than
the paucity of work available to Shepard and that the
discharge would be, in effect, a favor to Shepard, who
could then go out and get a good full-time job.
At the hearing, Dreiling did not address himself
directly to the foregoing testimony of Shepard and Wag-
goner and we credit the substance of their testimony. We
also credit Dreiling's testimony which was, in effect, that,
on March 9, 1967, he telephoned Waggoner about
discharging an employee. Waggoner told him that the em-
ployee or employees should first be given a formal warn-
ing about his poor work or whatever the deficiency might
be.55 Thereafter, on March 9, 1967, Dreiling said to
Shepard, "I guess I have to give you a formal warning on
repeat work [comebacks]. There is just no way I can af-
ford to have repeat work." Dreiling states that he specifi-
cally told Shepard what work he was referring to, the
Sichler Ford and the Howard truck jobs. Shepard said
`'okay. "5s
There can be little doubt, in our opinion, that the
evidence warrants the conclusion that, after the election,
Dreiling wished to be rid of Shepard. We have discussed
the cut in hours and other matters at an earlier point. The
foreseeable consequence of such action by Respondent
was that Shepard would quit. But he did not do so. Dreil-
ing then began speaking to the union representative about
discharging an employee for comebacks, sounding out
Waggoner, on the matter and apparently hoping that Wag-
goner would raise no objection and would, in effect, ad-
vise or tell Dreiling how to go about a discharge. Wag-
goner advised Dreiling that he should first warn the em-
ployee of his deficiencies. Dreiling then gave Shepard a
"formal" warning on March 9. Several weeks later
Shepard was still an employee, nothing having occurred,
apparently, in the interim after the March 9 warning, that
presented a reason for discharge. Dreiling then took a
slightly different tack in his manifest interest in getting rid
of Shepard. About March 27, Dreiling told Waggoner
that he thought he, Dreiling, should discharge Shepard
because he had been able to give Shepard so few hours of
work and Shepard was too good a mechanic to be work-
Ss Dreiling testified on this matter at various points in the hearing. At
earlier stages of the hearing he referred to the date of March 9 or April 9
but it appeared that the witness believed that the date was March 9. At a
later stage of the hearing, after being advised by counsel to consult his
notes , Dreiling states that he had talked to Waggoner on the telephone the
same day and the "Formal warning [to Shepard] was March 9, 4:15
P.M"
56 In view of what Dreiling had said at the January 5 meeting, after the
election, and the reprisals that followed, it was probably assumed by
Shepard that he could expect less than friendly treatment from Dreiling.
Dreiling asked for no explanation and gave his formal warning The
response of "okay" was as appropriate as any other under the circum-
stances.
ing so little. Dreiling, in effect, proposed that he would be
doing Shepard a favor by discharging him, since Shepard
could then go out and secure a full-time job. Waggoner,
however , told Dreiling that Shepard himself should de-
cide whether he wanted to leave or stay.
It is apparent that from February 15 to March 27,
Dreiling was sounding out Waggoner on the matter of
discharging an employee . There was an effort to secure
either Waggoner's concurrence on discharges or to secure
his views on the steps to be taken to accomplish or to
pave the way for discharge . If Waggoner concurred on a
ground for discharge as mentioned by Dreiling , such as
comebacks , or if Waggoner prescribed preliminary steps
and Dreiling followed the outlined procedure , then Dreil-
ing, no doubt , expected that there would be no repercus-
sion from the Union as a result of the discharge. The
March 9 warning was then made but Shepard was still
around . Then the proposal to discharge Shepard in the
latter's own best interest was made but this brought no
concurrence from Waggoner . It was apparent , therefore,
that something more was required to get rid of Shepard.
It is to be observed that the foregoing efforts to sever
Shepard from Respondent 's employ, including the formal
warning on March 9, occurred when the only comeback
on Shepard was the January 31 improperly seated-gasket
Sichler Ford incident .57 Yet, as we have seen , Dreiling
was already far advanced in a manifest intent to be rid of
Shepard . The pretextuous nature of the entire buildup
against Shepard is shown by the fact that on March 27,
after the Howard truck rear main bearing comeback,
Dreiling spoke to Waggoner , not in terms of Shepard's
deficiencies , but in terms to the effect that Shepard was
too good a mechanic to be working part time and there-
fore Dreiling was proposing to discharge Shepard in the
latter's own interest.58
A careful consideration of all the evidence persuades
us that Shepard was discharged because of his
prominence in the Union and his adherence to, and ad-
vocacy of, the Union. To Dreiling , Shepard's union ac-
tivities were a manifestation that Shepard did not believe
in and trust Dreiling, who had made clear his opposition
to the Union and its supporters . As a consequence , Dreil-
ing took various steps, previously described, to get rid of
Shepard. It is our opinion that the alleged reasons for
discharge were pretexts and that , but for his union activi-
ties, Shepard would not have been discriminated against
and discharged . We find that the discharge of Shepard
constituted a violation of Section 8(a)(1) and (3) of the
Act.
The Bargaining
The first meeting of the parties was on February 15,
1967. At this and other meetings, Waggoner and Shepard
were present for the Union and Dreiling for the Respond-
59 On the evidence, the Johnson sparkplug affair can scarcely be dig-
nified as a comeback for which either Respondent or Shepard had any
discernible responsibility.
58 At one point in his testimony, Dreiling stated that he spoke "lightly"
to Shepard about the March 14 Howard truck comeback. The "light"
speaking, according to Dreiling, was because there was doubt that
Shepard was at fault for the comeback. As we have previously shown in
detail, the overhaul by Shepard was on January 21. The truck came back
on March 14 with a bad rear main bearing. The circumstances , earlier
described, do not inculpate Shepard in any way and we believe Dreiling
had the same opinion
L. J. DREILING MOTORS CO., INC. 553
ent. According to Waggoner, at the meeting on February
15, Dreiling said that business was poor and he did not
feel that he could afford a contract. He asked that Wag-
goner check the financial condition of the Company.
There is no evidence that, on this or other occasions, the
Union asked for specific financial records or otherwise
checked the financial condition of Respondent. Waggoner
produced a sample contract and suggested that Dreiling
go over it and let him know at the next meeting what
Dreiling's position was on the various articles. At the
meeting, Dreiling questioned Shepard's right to be
present and asked whether he had been elected by the
employees. Waggoner replied that the Union had ap-
pointed Shepard as shop steward.
The next meeting was March 2. Dreiling had a tape
recorder set up at the meeting. Waggoner objected and
Dreiling put it away. Dreiling again questioned Shepard's
status as steward but this was about the extent of the
matter on this aspect. The parties then went over the
proposed contract. Dreiling objected to the provision that
a purchaser of the Company would be bound by the con-
tract, saying he could not bind any potential buyer. The
Union-shop provision was discussed. Dreiling said that
he considered that it would be immoral for him to agree to
require his employees to join the Union. The parties
discussed checkoff of dues. Dreiling said he had a small
business and had only one office girl and he could not
agree to the checkoff because of the added expense. The
parties agreed on a recognition clause. Dreiling asked
what he could do about an employee "who couldn't do his
work properly," mentioning employee Jackson. Dreiling
also asked if Waggoner had checked on the financial
standing of the Company. Waggoner suggested that they
attempt to agree on contract language and that they "wor-
ry about the finances when we got to it, those parts of the
agreement," involving money. Dreiling suggested post-
poning negotiations until September when he would have
a better idea of what he could afford.59 Waggoner sug-
gested that they take care of the noncost items first. After
1-1/2 hours, Dreiling said his business was almost on the
rocks and he had to keep an appointment about a loan.
On March 23, the parties again met. Dreiling said he
had failed to get the previously mentioned loan and saw
little sense in further negotiations. He said, however, that
"he guessed that he was required to do so" and negotia-
tions continued. The parties agreed on a contract article
regarding discharges. They discussed job classifications
and pay. They reached agreement on one part of the arti-
cle relating to shortages in paychecks. Dreiling did not
agree to pay weekly rather than the existing practice
which was biweekly. Dreiling said that it looked as if his
business would have "to fold." He said that he had told
his employees who were working regularly that if they
could find other jobs they should do so. At the meeting,
Dreiling advised Shepard that, if he found another job, he
should take it. The parties agreed to meet again on March
30.
Thereafter, Waggoner cancelled the March 30 meeting.
He testified that he had gotten tied up in other negotia-
tions. There have been no meetings since March 23 and
the Union had requested none. Waggoner testified that
the reason for the foregoing was that he did not have time
up until about the time of Shepard's termination, April
13. At that period, according to Dreiling there were only
two employees working regularly, Cyril Dreiling and
Glenn. Waggoner testified that it seemed to him that,
after the discharge, since Shepard was not even working
part time, "our interest was quite disseminated in the bar-
gaining unit." The witness also said that he had in mind
that, on March 23, Dreiling was very pessimistic about
his ability to stay in business.
As we understand the General Counsel's brief, he con-
tends, inter alia, that Respondent's other unfair labor
practices support the contention that Respondent was not
bargaining in good faith. We do not agree. The evidence,
in our opinion, does not warrant the conclusion that
Respondent failed to bargain in good faith on a contract,
upon request, from February 15, to, and including March
23. We have previously found that certain unilateral
changes in conditions of employment were in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
As found hereinabove, Respondent violated Section
8(a)(1) of the Act by threatening its employees with
economic reprisals because a majority of the employees
had voted for the Union; Respondent violated Section
8(a)(1), (3), and (5) of the Act by effectuating certain
economic reprisals as previously threatened; Respondent
violated Section 8(a)(1) and (3) of the Act by economic
reprisals against employee Shepard; Respondent violated
Section 8(a)(1) and (3) of the Act by discharging em-
ployee Shepard on April 13, 1967; Respondent did not
refuse to bargain collectively with the Union regarding
the terms of a contract.
THE REMEDY
Since it has been found that Respondent has violated
certain sections of the Act it will be recommended that it
cease and desist from such conduct.
In accordance with the provisions of the Act and the
precedents of Board and court decisions, it will be recom-
mended that Shepard be made whole for his loss of pay by
reason of the discrimination against him. More specifi-
cally, it will be recommended that Shepard be made
whole for his loss of pay from the commencement of the
discrimination against him to the date of an offer of rein-
statement to his former or substantially equivalent job,
less intermediate earnings. The period from the date of
discharge, on April 13, 1967, to the date of an offer of
reinstatement requires no additional comment.
As stated in our decision hereinabove, it is our opinion
that Shepard was also discriminated against in the period
from January 6 to April 13, 1967, with respect to work-
ing hours. Since Shepard would have worked fewer hours
after January 6 than he did in the period prior to January
6 because of the poor condition of Respondent's busi-
ness, the computation should be based on the following
formula: Shepard to be made whole for the difference in
the total hours he actually worked in this period and the
total hours worked by Shepard and Weber in the period
but excluded from the latter total are hours worked by
Weber on his own customer's cars when Weber com-
menced performing such personal customer work after
Respondent cut back on Weber's hours of work. For in-
stance, using arbitrary round numbers in an example, if
Shepard had 100 hours in January 6 - April 13 period,
and Weber had 100 hours in the same period, but 50 of
59 Dreiling testified that he made the suggestion facetiously.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weber's hours were on his own customers ' cars, Shepard
should be made whole for 50 hours. The rationale for the
foregoing is based on the discrimination against Shepard
and the hiring of Weber and the allocation of hours to him
at the time when Respondent planned and put into effect
a reduction of Shepard's hours. This matter has been set
forth in our decision.
With respect to work uniforms , in the 2-week period
ending February 18, 1967, Shepard worked a total of 7-
1/2 hours and was charged $3.50 for uniforms. The
evidence , set forth in this Decision, warrants the conclu-
sion that Respondent had bound itself to pay for one
uniform , with the employees paying $1 . 75 for each extra
uniform . Shepard was charged for two uniforms when the
evidence would indicate that Shepard used a total of one
uniform . We believe that Shepard should be reimbursed.
[Recommended Order omitted from publication.]