Luby Leasing, Inc.

National Labor Relations Board - Board Decisions

Aug 17, 1972

198 N.L.R.B. 951 (N.L.R.B. 1972)

LUBY LEASING, INC. 951
Luby Leasing, Inc. and District No. 76, International
Association of Machinists and Aerospace Workers,
AFL-CIO. Case 3-CA-4556
August 17, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 22, 1972, Trial Examiner Alvin Lieber-
man issued the attached Decision in this proceeding.
Thereafter, the Respondent and the General Counsel
filed exceptions and supporting briefs. Respondent
filed a reply brief to the exceptions of the General
Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions2 and to adopt his
recommended Order.
In concluding that the union authorization cards
signed by Respondent's mechanics in the presence of
Allen were valid, the Trial Examiner made no
finding on whether Allen was actually a supervisor at
that time. In finding the cards valid, we agree with
the Trial Examiner that Respondent's mechanics
believed Allen was no longer a supervisor and,
further, we conclude that Allen no longer spoke for
management. Thus, Respondent's employees were
aware that Allen had submitted his resignation as
service manager and that he began the next day to
work a full 8 hours as a mechanic, the same as the
other employees. Allen also began punching the
timeclock, which he had not done previously. When,
a ! day or two after submitting his resignation, Allen
had made out some worksheets, Farney, Respon-
dent's manager, tore them up and wrote counter-
manding orders. Later, when Farney called the
mechanics individually into his office, two of the
mechanics did not wish to go in the office alone and
requested permission to bring someone along. Both
selected Allen to accompany them. Given the
relationship which existed between Allen and the
mechanics at the time the cards were signed and
thereafter, we are of the opinion that neither Allen
nor the mechanics believed that Allen represented
management or management's point of view. Ac-
cordingly, we conclude that his presence at the
meeting where the cards were signed, and his
contemporaneous signing of a card, did not in any
manner influence the mechanics or thereby taint
their cards.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Respondent, Luby Leasing, Inc., Tonawanda,
New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
i Members Fanning and Penello agree with the Trial Examiner that
Respondent violated Section 8(a)(l) by its statement to Koone that if the
Union got in he would suffer a drop in pay However, they do not adopt his
rationale but so find because the matter was put as an observation of
inevitable result , rather than a possibility, notwithstanding the Union's
indication that an exception to the leasing contract rate could be made
2 Chairman Miller does not agree that Respondent 's statement to Koone
that if the Union got in Koone would have a drop in pay because he would
thereafter be under a "leasing contract" was violative of Section 8(a)(1)
Koone was unique in that he had been hired as part of a transaction when
Respondent took over another firm having a "common carrier contract"
with the Union Koone had continued to receive the higher pay and benefits
of that contract while in Respondent 's employ although Respondent was a
leasing company rather than a common carrier Respondent 's statement
was not a threat of retaliation but rather an expression of its view, which
nothing in the record suggests was erroneous , that it would be expected to
follow a "leasing contract" if the Union were to gain representative status
Furthermore . Chairman Miller notes that Koone himself was aware of the
possibility of coming under a lower rate "leasing contract" and in that same
conversation advised Respondent that he had checked with the Union and
had been assured that under "no circumstances" would he receive a lower
rate of pay Under this set of facts. Chairman Miller would find nothing
coercive in the conversation and would therefore dismiss the allegations of
an 8(a )(1) violation relating thereto
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Trial Examiner: The trial in this
proceeding, with all parties represented, was held before
me in Buffalo, New York, on November 2, 3, and 4, 1971,
upon the General Counsel 's complaint dated September
28, 1971, 1 and Respondent's answer .2 In general , the issues
litigated were whether Respondent violated Section 8(a)(1),
(3), and (5) of the National Labor Relations Act, as
amended (the Act). Particularly, the principal questions for
decision are as follows:
1. Did Respondent violate Section 8(a)(1) of the Act
by, as the complaint alleges, threatening and interrogating
employees concerning their union activities ; promising
benefits to employees to dissuade them from supporting
i The complaint was issued pursuant to a charge filed on August 11,
1971, by District No 76. International Association of Machinists and
Aerospace Workers. AFL-CIO
2 During the trial the pleadings were revised in several respects Thus, the
complaint was amended by striking the words "office and" after the word
"principal" in par 11(b ) and inserting between the words "business" and
"at" the words "in Albany, New York, and a place of business", by
substituting for the words "April 1, 1971," in par VI(e) the words "June or
July 1971", and by substituting the following par for par. X111
All service department employees employed by Respondent at its
Tonawanda , New York. plant including mechanics employed at the
employer's satellite operations in Rochester , New York , and Corry,
(Continued)
198 NLRB No. 139
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 76, International Association of Machinists and
Aerospace Workers, AFL-CIO (the Union); denying
benefits to employees because they supported the Union;
and keeping under surveillance employees' union activi-
ties?
2. Did Respondent violate Section 8(a)(3) of the Act by
discharging an employee?
3. Did the Union represent an uncoerced majority of
Respondent's employees when its request for bargaining
was made?
4. Assuming an affirmative answer to question 3, did
Respondent violate Section 8(a)(5) by refusing to bargain
with the Union and, as the complaint further alleges, by
unilaterally changing employees' terms and conditions of
employment?
5. Assuming an affirmative answer to question 4,
should a bargaining order issue?
Upon the entire record,3 upon my observation of the
witnesses and their demeanor while testifying, and upon
careful consideration of the arguments made and the briefs
submitted,4 I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation, is engaged in
Tonawanda, New York, in the leasing and servicing of
motor trucks. During the year ending on September 27,
1971, Respondent purchased and received goods and
materials valued at more than $50,000 which were
delivered to its place of business in Tonawanda, New
York, from places outside the State of New York.
Accordingly, I find that Respondent is engaged in
commerce within the meaning of the Act and that the
assertion of jurisdiction over this matter by the National
Labor Relations Board (the Board) is warranted. Siemons
Mailing Service, 122 NLRB 81, 85.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. INTRODUCTION
Briefly , this case concerns itself with the signing of
authorization cards by a majority of Respondent's employ-
ees; the Union 's request , to which Respondent did not
accede , for bargaining ; and certain subsequent events.
Included among the latter , the complaint alleges, were
violations of Section 8(a)(1) of the Acts by Respondent
and Respondent's unilateral changes in the working
conditions of its employees . Also among the events which
followed the Union's bargaining request was Respondent's
discharge of an employee.
The General Counsel contendss that the discharge
violated Section 8(a)(3) of the Act. He further contends
that Respondent's refusal to bargain with the Union and
the unilateral changes in working conditions alleged in the
complaint were violative of Section 8(a)(5).7
Respondent denies the complaint's allegations that it
violated Section 8(a)(l) of the Act. It argues that the
discharge was economically motivated and, therefore, not
violative of Section 8(a)(3). Concerning its failure to
bargain with the Union , Respondent maintains that it was
not obliged to do so because at the time of the Union's
request for recognition the Union did not represent an
uncoerced majority of the employees in the unit involved.8
The basis for this contention is Respondent's claim,
disputed by the General Counsel, that a supervisor was
present when its employees signed cards designating the
Union as their bargaining representatives.
IV. PRELIMINARY FINDINGS AND CONCLUSIONS9
A. Credibility
The General Counsel called four witnesses to establish
Pennsylvania, excluding all office clerical employees, watchmen,
guards and supervisors as defined in the Act
The answer was amended to admit the foregoing amendments to the
complaint.
3 Issued simultaneously is a separate order correcting obvious inadvert-
ent errors in the stenographic transcript of this proceeding
4 Although all the arguments of the parties and the authorities cited by
them, whether appearing in their briefs or made orally at the trial, may not
be discussed in this Decision, each has been carefully weighed and
considered
5 The nature of these claimed violations appear above in my statement of
the principal questions for decision
6 The Union made no opening statement at the trial, nor did it submit a
brief I assume, however, that its position is the same as the General
Counsel's.
7 Set forth below are the relevant provisions of the secs of the Act to
which reference has been made in the text
Sec 8 (a) It shall be an unfair labor practice for an employer-
(I) to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7,
(3) by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization .
r • • r
(5) to refuse to bargain collectively with the representatives of his
employees, subject to the provisions of section 9(a)
Insofar as pertinent , Secs 7 and 9(a) are as follows.
Sec 7 Employees shall have the right to self-organization, to
form, join, or assist labor organizations , to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any or all of
such activities
Sec 9 (a) Representatives designated or selected for the purposes
of collective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive representatives of
all the employees in such unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, or other
conditions of employment
X There is agreement as to the appropriateness of the unit for which
bargaining was requested As set forth in the complaint, as amended, it
consists of "all service department employees employed by Respondent at
its Tonawanda , New York . plant including mechanics employed at the
employer's satellite operations in Rochester. New York, and Corry.
Pennsylvania , excluding all office clerical employees , watchmen , guards and
supervisors as defined in the Act "
9 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to Respondent's alleged unfair labor
practices and the conclusions to which they may give rise To the extent that
the contentions of the parties relate specifically to the findings made here
they will be treated here , although they, as well as the findings, may again
be considered in other contexts
LUBY LEASING, INC. 953
the complaint's allegation that Respondent violated Sec-
tion 8(a)(1) of the Act by threatening and interrogating
employees. Two of these, William Eisenhauer and Charles
Koone, were in Respondent's employ at the time the events
as to which they testified occurred and were still employees
of Respondent at the time of the trial. The other two,
Edgar Allen and Clifford Laub, had been in Respondent's
employ but were no longer employed by Respondent when
they testified.10 The evidence given by the General
Counsel's witnesses to establish Respondent's independent
violations of Section 8(a)(l) was, in the main, denied or
contradicted by Respondent's witnesses, all of whom were
high ranking officials of Respondent.
"The average employee [providing information in a
proceeding to which his employer is a party] is keenly
aware of his dependence upon his employer's good will,
not only to hold his job but also for the necessary job
references essential to employment elsewhere.11 Bearing
this truism in mind, it is plain to see that the employee
witnesses who testified against Respondent did so knowing
that they were in considerable peril of economic reprisal.
Having thus much to lose, their testimony, adverse to
Respondent, was in a sense contrary to their own interests
and for this reason not likely to be false.12
Accordingly, taking into account the foregoing as well as
their demeanor on the witness stand, I credit Eisenhauer i3
and Koone 14 rather than Respondent's witnesses, includ-
ing Douglas Farney, Respondent's manager, who gave
contrary or conflicting testimony concerning the com-
plaint's allegations that Respondent violated Section
8(a)(1) by its interrogation and threats. This is not to say
that Farney was generally an untruthful witness. As will be
seen , testimony given by him concerning matters having no
relationship to the claim that Respondent interrogated and
threatened employees has been credited. "It is no reason
for refusing to accept everything that a witness says,
because you do not believe all of it; nothing is more
common in all kinds of judicial decisions than to believe
some and not all." N.L.R.B. v. Universal Camera Corpora-
tion, 179 F.2d 749, 754 (C.A. 2), reversed on other grounds
340 U.S. 474.
What I have dust said does not apply to any testimony
given by Allen and Laub respecting any phase of this case.
Each had an animus against Respondent which surfaced
during the trial.
Allen's hostility toward Respondent was engendered, as
he several times stated, by his belief that he had been
cheated by Respondent in connection with his wages. In
explanation of this Allen testified that Respondent "never
did come to match [his] pay with [his] hours."
Laub's resentment toward Respondent was based on his
discharge and on the fact that in a letter of reference 15 he
10 Respondent discharged Laub on June 29, 1971 The termination of
Laub's employment is alleged in the complaint as having been violative of
Section 8(a)(3) of the Act Allen quit his job with Respondent on August 19,
1971
11 Wirtz v B A C Steel Products, Inc, et al, 312 F 2d 14, 16 (C A 4)
12 See further, in this connection, Georgia Rug Mill, 131 NLRB 1304,
1305, modified on other grounds 308 F 2d 89 (C A 5)
13 I have also taken into account in crediting Eisenhauer the fact that for
a short period of time while working for Respondent he also accepted
unemployment benefits
14 As will be made apparent later on in this Decision, in one respect
received from Respondent after his discharge his work was
described as being that of a "second class" mechanic. As to
this, Laub testified with much ardor that while working for
Respondent he "was doing the same thing Charlie Koone
is doing right now, and Charlie Koone is supposed to have
been a mechanic for ten or fifteen years."
Furthermore Allen and Laub did not, by their demeanor,
impress me as being candid witnesses . They did not appear
to be above telling untruths, if by doing so they could
disadvantage Respondent.
Accordingly, with respect to important matters , I will not
credit Allen or Laub in any regard unless their testimony
has been corroborated by credible evidence or constitutes
admissions contrary to their interests.i6
B. Respondent's Operations
1. The nature of Respondent' s business and its
employment complement
Respondent's headquarters are in Albany, New York. It
maintains several places of business , including a garage in
Tonawanda, New York, with which we are here concerned,
which went into operation in May 1970.
Respondent is a lessor of motor trucks . Its leases run for
substantial periods of time and require respondent to
service and maintain the leased vehicles.
The service and maintenance work provided for in the
leases is performed by mechanics in Respondent's employ.
It is done , in large part , at the lessees ' premises in the late
afternoon or during the night when the trucks are off the
road. Some leased vehicles are also repaired at Respon-
dent's garage.
From time to time during the evening hours Douglas
Farney, Respondent's district manager, visits Respondent's
garage and the premises of Respondent's lessees. Farney
does this, as he testified, "to make sure that the work
assigned [to Respondent's mechanics] is being carried out
as assigned" and because he "like[s ] to know for [himself]
whether or not everything is as honky dorey as [his] service
people tell [him] they are."
On the occasions of Farney's visits to Respondent's
lessees he discusses problems with lessees' dispatchers,
examines reports of truck malfunctions made by drivers
employed by lessees, and determines whether the repairs
indicated have been properly made by respondent's
mechanics. It is Farney's feeling, as he further testified,
that these "visits . . . are more effective if no one knows
that [he is] coming."
At all material times the service staff at Respondent's
Tonawanda garage has consisted of three mechanics and a
supervisor, variously referred to as service manager,
Koone's testimony was too confusing to permit me to make a finding as to a
matter having no relationship to Respondent's alleged violations of Section
8(a)(I) of the Act by interrogating and threatening employees This,
however, does not detract from his credibility
1.5 General Counsel 's Exhibit (G C Exh ) 8
16 Having thus concluded that Eisenhauer and Koone should be believed
with respect to allegations of the complaint dealing with Section 8(a)(1) of
the Act and that Allen and Laub were not truthful witnesses, I will make no
further reference to credibility except when what is involved does not fall
within the periphery of my discussion here In addition , from time to time
testimonial differences may be mentioned in appropriate footnotes.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working foreman, and lead mechanic. At no material time
has Respondent had any need to employ a fourth
mechanic.
2. Truck transfers
When Respondent opened its Tonawanda garage several
trucks which had been in use at other garages operated by
respondent were transferred to Tonawanda for temporary
assignment to lessees. When these trucks were replaced by
new vehicles they were returned to the garages from which
they were originally taken. In addition to the foregoing
transfers it is necessary on occasion, although the need for
this diminished upon Respondent's becoming well estab-
lished in Tonawanda, for Respondent to transfer trucks
between Tonawanda and its other garages.
Intergarage truck transfers from or to Tonawanda are
made by people employed specially for this purpose when
the need arises and by mechanics who work regularly in
the Tonawanda garage. However, mechanics are used for
this purpose only if the transfer does not interfere with
their regular duties or impair their efficiency in the
performance of their normal work. When the transfers are
made by mechanics they are paid for doing so over and
above the wages they earn in the performance of their
usual work.
3. Some working conditions in respondent's
garage
Among the working conditions which prevailed in
Respondent's garage before July 15, 1971,17 were those
relating to working hours, punching the timeclock , clean-
ing up and changing clothes, coffeebreaks, and health
insurance . Insofar as the evidence permits, findings
concerning the nature of these working conditions before
July 15, 1971,18 are set forth below.
Working hours: Exclusive of overtime, the regular
working day in Respondent's garage consisted of, and
employees were paid for, 8 hours. However, the normal
quitting time for an employee was 8-1/2 hours after he
started to work. This accounted for a 30-minute lunch
break for which he was not paid.
Punching a timeclock. Employees were required to punch
the timeclock in respondent's garage at the beginning and
end of their working day. They were permitted to clock in
up to 15 minutes before their regular starting time provided
they began to work upon doing so and, provided further,
that they clocked out 8-1/2 hours later.
Employees were also required to punch the timeclock at
the beginning and end of their lunch period. This
requirement, however, was honored more in the breach
than in the observance. The reason for this was that
employees were usually working at premises of Respon-
dent's lessees when their lunchtime came and they took
their lunch there.
Cleaning up and changing clothes Mechanics employed
by Respondent wear shop uniforms while working. Some
change into street clothes before leaving the garage at the
end of their shifts and some do not. The evidence as to
whether Respondent required those who did so before July
15 to clock out before changing clothes is so inconclusive
and confusing that I am unable to make a finding as to
what the requirement or practice was.
Thus, Douglas Farney, Respondent's manager, testified
merely that he "believe[d]" that employees who changed
clothes before clocking out "were violating [Respondent's]
working conditions." The only other evidence on this point
was given by Charles Koone, a mechanic. He testified with
equal inconclusiveness and much confusion that "to [his]
knowledge" it was not "the practice to wait until the end of
the work day before dressing out"; that "[a It quitting time
[he] would punch out and then go back and wash up"; that
he "would give [himself 10 to 15 minutes ] to clean up .. .
before [going] home" and "would [do] this before
[punching] out"; and that he "always punched [his] time
out" and "never charged [Respondent] for clean up." 19
Coffeebreaks: Before July 15 mechanics, while working in
Respondent's garage, could leave their work stations for
coffee any number of times a day and drink it in a back
room where the coffeepot was located, or bring the coffee
back to their places of work and drink it there while they
worked.
Health Insurance: Under a health insurance policy
maintained by Respondent for the benefit of its officials
and employees Respondent pays the premium for their
coverage. Any official or employee of Respondent who
desires to have members of his family covered by
Respondent's policy must, himself, pay the premium for
their coverage. In the case of Respondent's employees, the
amount of this additional premium is deducted from their
wages by Respondent.
C. Allen's Resignation as Service Manager
Allen orginally began to work for respondent as a
mechanic. During the fall of 1970 he became Respondent's
service manager. This is a supervisory position. At the time
of Allen's promotion he was assured by Respondent's
officials that if he ever became dissatisfied with being
service manager he could resume his job as mechanic.
On June 16, 1971, during a row with Douglas Farney,
Respondent's manager, over an increase in salary and
other matters Allen informed Farney that he wanted to
return to the floor and work as a mechanic, as was agreed
upon at the time of his promotion. Farney acceded to this
but requested 2 weeks' notice, which Allen readily gave, for
the purpose of affording Respondent time to engage a new
service manager.
On the next day, June 17, Respondent placed an
advertisement for a "working foreman"20 in the Buffalo
newspapers. The advertisement first appeared on June 18
and continued to appear each day during the following
i On July 15, 1971, Respondent posted a notice (GC Exh 7) 1$ All dates hereinafter mentioned without stating a year fall within 1971
containing work rules The complaint alleges that the rules thus published, 19 While Koone was testifying on this point I observed that he "said so
which will be discussed in detail in a later section of this Decision, many things I'm not sure what he said " Having read the record, I am still of
constituted unilateral changes in terms and conditions of employment of that opinion
Respondent's employees 20 Respondent's Exhibit (Resp Exh ) 4
LUBY LEASING, INC. 955
week. Allen's replacement was hired on June 24 and he
took over Allen's duties on June 30.
Allen's notice of his impending resignation as service
manager soon came to the attention of the mechanics in
Respondent's employ. As put by Koone, who seemed to
express the sentiments of the other two mechanics, during
the notice period he "took it for granted [that Allen] wasn't
foreman any longer." 21
D. The Union's Majority and its Bargaining
Request
On June 21, 1971, Allen and the three mechanics
employed by Respondent, William Eisenhauer, Charles
Koone , and Clifford Laub, met with a representative of the
Union. This meeting had been arranged the previous day
by Laub with some assistance from Allen.
After an explanation by the Union's representative
concerning the benefits which might flow from the
unionization of Respondent's garage, all persons present at
the meeting, including Allen, either expressly or by signing
an authorization card indicated that they were in favor of
being represented by the Union. The cards were signed at
the request of the Union's representative and each person
in attendance signed in the presence of the others. No
other activity in support of the Union seems to have been
engaged in by Respondent's employees, except for the
presence of some at a hearing conducted on about July 13
in connection with a representation petition filed by the
Union.
On June 22 the Union, by letter, requested that
Respondent recognize, and bargain with, it as the repre-
sentative of Respondent's service department employees. It
is undisputed that at that time the unit covered by the
Union's request consisted of at least three employees,
Eisenhauer, Koone, and Laub. In dispute is the placement
in this unit of two additional people, Allen and a person
alleged by Respondent to be a plant clerk. There was, thus,
on June 22 a possible maximum of five people in the unit.
To establish the Union's majority on the date of its
request for recognition and bargaining22 the General
Counsel placed in evidence the cards signed at the June 21
meeting by Allen, Eisenhauer, Koone, and Laub. Respon-
dent urges me to reject these cards because, as stated by its
lawyer during the trial, they are "tainted by supervisory
influence."
In support of its position Respondent asserts that Allen
continued to be a supervisor during the 2-week notice
period which followed June 16, the day he informed
Respondent of his desire to give up his post as service
manager . Bottomed on this premise, Respondent argues
that Allen's assistance in arranging the meeting at which
the cards were solicited and signed, his attendance at this
meeting, and his having openly signed a card there
21 What appears in the text should not be construed as a finding
concerning Allen's status during the 2 weeks in which his replacement was
being sought In connection with the validity of the authorization cards, to
be discussed next, respondent argues that Allen continued to be a supervisor
until June 29 My view of this issue, as will be seen , is that Allen's status
during the notice period, within which the cards were signed, has no bearing
on their validity
22 "[T]he crucial question in a refusal to bargain case is whether the
union had the support of a majority of the employees in an appropriate
constituted supervisory coercion in the execution of the
cards by the other persons present. The cards being thus
tainted, Respondent's argument continues, they have no
value as evidence of the Union's majority. I do not agree.
In the circumstances of this case, whether Allen was still
a supervisor at the time of the meeting at which the cards
were signed does not seem to be material. What is
important in determining the validity of the cards, as the
Board has held, is whether Respondent's employees
thought he was. See, in this connection, WKRG-TV, Inc.,
190 NLRB No. 34; Aero Corporation, 149 NLRB 1283,
1286, enfd. 363 F.2d 702 (C.A.D.C.).
In this respect, I have found that during Allen's 2-week
notice period, within which the cards were signed, he was
no longer looked upon by Respondent's mechanics as
being a supervisor. Accordingly, regardless of whether
Allen was actually a supervisor at the time, as to which I
make no finding, it cannot be said that the three mechanics
who were at the meeting were "by a voice of management
intimidated . . . into signing cards." WKRG-TV, Inc.,
supra.
I conclude, therefore, that the cards signed on June 21 by
the three mechanics in respondent's employ are valid and
entitled to reliance in determining the Union's majority.
The question of whether the Union had the support of a
majority of Respondent's service department employees on
June 22, when it requested Respondent to recognize, and
bargain with, it can be quickly resolved. Three employees,
as to whose placement in the unit covered by the Union's
request there is no dispute,23 signed cards on June 21
validly authorizing the Union to act as their bargaining
agent.24 There having been a possible maximum of five
people in the unit on June 22, these cards establish the
Union's majority status on that day.
V. THE ALLEGED UNFAIR LABOR PRACTICES25
A. Facts, Contentions, and Conclusions Concerning
Respondent's Alleged Independent Violations of
Section 8(a)(1) of the Act
Respondent's claimed independent violations of Section
8(a)(I) of the Act, as set forth in the complaint, consist of
interrogating and threatening employees, promising bene-
fits to employees, denying benefits to employees, and
surveillance of employees' union activity. Many of the
foregoing alleged violations are stated in the complaint to
have been committed during the afternoon of June 24,
1971, in the office of Douglas Farney, Respondent's
manager, to which each mechanic in Respondent's employ
was separately summoned.
Farney's purpose in calling the employees to his office,
he stated, was to acquaint them with the Union's
bargaining request, received by Respondent on June 22,
bargaining unit at the time the request to bargain was made
International Union, UAW, etc v N L R B, 392 F 2d 801, 808 (C A D C).
cert denied 392 U S 906
These are Eisenhauer, Koone. and Laub
za Because of the dispute concerning Allen's placement in the unit his
card will not be considered in determining the Union's majority
2'i It will be remembered that the complaint alleges that respondent
violated Section 8(a)(I), (3), and (5) of the Act
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to "find out what [the shop] problems were." In this
connection, Farney further stated that "because [he] had
received [the] letter from the Union [he] assumed . . . that
[he] had some problems in the shop."
Farney informed each employee at the beginning of his
interview that he had received the Union's bargaining
request, but that he was not interested in any information
concerning the Union. In addition, and as part of his
prefatory statement, Farney told the employees, as he
testified, that his "only purpose" in talking to them "was to
get to the problems that they felt [he] had in the garage";
that "if they didn't want to talk about anything that was
wrong they didn't have to"; and that they should not feel
that "if they told [him] something ... was wrong they
would be . . . reprimanded, or disciplined for saying [so]."
Despite Farney's disclaimer of interest in information
concerning the Union, much was said on this subject
during the interviews on June 24.
1. Interrogation and threats
Although Jacob Lee, Respondent's regional service
manager, also participated, the interviews were, in the
main, conducted by Douglas Farney, Respondent's man-
ager. Each employee was asked whether he had signed an
authorization card26 and whether any other employees had
done so. Questions were put to Eisenhauer and Koone,
mechanics in Respondent's employ, concerning the identi-
ty of the employee who had been instrumental in
organizing the Union and Eisenhauer was asked what he
knew about the Union.
The single incident of interrogation alleged in the
complaint which did not take place in Farney's office
occurred on August 8 while Al Remo, Respondent's
regional manager, was driving Eisenhauer from the
premises of one of respondent's lessees to Respondent's
garage. On this occasion, as Eisenhauer testified, Remo
inquired of him, with reference to the Union, "How did
this thing all get started?" Remo continued the conversa-
tion by speculating that the Union might have been given
its "start" in Respondent's garage by Laub, who by this
time had already been discharged.
In addition to their interrogation in Farney's office on
June 24, threats were there made to Respondent's
employees. Thus, Lee, Respondent's regional service
manager, told Eisenhauer, as the latter testified, that "if the
union goes through [Respondent] would close down the
shop and lock the doors." Lee made a like threat to
Laub.27
The threat made to Koone was of a different type.28
26 Each employee questioned admitted that he had signed a card
21 Laub testified concerning the threat made to him by Lee I credit it
only because of the similar testimony given by Eisenhauer The same
applies to testimony given by Laub relating to his interrogation by Farney.
Respondent's manager, which was paralleled by evidence given by
Eisenhauer and Koone whose testimony, as I have already noted, I believe
28 To understand the nature of this threat a background statement is
necessary Before Koone began to work for Respondent he had been
employed by a concern, referred to in the record as Cooper Jarrett, which
had a collective agreement with the Union known as a common carrier
contract When Respondent opened its Tonawanda garage Cooper Jarrett
turned over its trucks to, and became a lessee of, Respondent As part of the
transaction Respondent orally agreed with the Union to hire Koone at the
rate of pay set forth in the contract between Cooper Jarrett and the Union
During Koone's interrogation on June 24 Farney, Respon-
dent's manager, said to him, as Koone related, that "if the
union comes in here you are going to have a drop in pay
because you are not going to get the common carrier
contract you have now, you will be under a leasing
contract.29
The statements made by Farney to each employee at the
outset of the interviews on June 24 did not immunize his
subsequent interrogation from the sanctions of the Act.
Those statements did not even come close to the "safe-
guards" enumerated in Struksnes Construction Co., Inc.,
165 NLRB 1062, 1063, where the. Board set forth five
criteria for determining the lawfulness of interrogation of
employees concerning their relationship to a union.
One of the Struksnes standards which was not complied
with here is that "the employer has not engaged in other
unfair labor practices or otherwise created a coercive
atmosphere." 30
The threats to close Respondent's plant made to
Eisenhauer and Laub and to reduce Koone's wages upon
the advent of the Union made while those employees were
being questioned about the Union "were intrinsically
coercive and imparted a coercive nature to the interroga-
tion."31 By thus creating what was referred to in Struksnes
as "a coercive atmosphere" Respondent's interrogation,
like its threats, was violative of Section 8(a)(1) of the Act.32
Furthermore, the very fact that the interrogation of
Respondent's employees was conducted in Farney's office
also contributed to the creation of "a coercive atmos-
phere." Thrush Press, Inc., 171 NLRB No. 86.
Respondent seems to argue, on brief, that the statement
made to Koone by Farney, Respondent' s manager,
concerning the reduction of his wages was "at the most an
expression of opinion . . . within the employer's right to
free speech." However, there is no hard objective evidence
in the record demonstrating that should Respondent enter
into a contract with the Union the agreement would
provide for the payment to Koone of a lower wage than he
was then receiving. Absent such proof, Farney's remark to
Koone was a threat and not a protected `,'expression of
opinion." N.L.R.B. v. Gissel Packing Co., Inc., et a!., 395
U.S. 575, 618-619.
Accordingly, I conclude that by threatening to close its
plant and to reduce wages should the Union attain
recognition as its employees' bargaining agent Respondent
violated Section 8(a)(I) of the Act. I further conclude that
Respondent also violated Section 8(a)(1) by interrogating
employees as to their, and other employees', activities in
support of the Union; as to their knowledge of the Union;
which was higher than that paid by Respondent to its other mechanics.
19 Farney's version of what he said to Koone in this regard is different.
Farney stated that he told Koone " there was a possibility that if the union
were successful that [Respondent ] would actually sign a different
contract than what he had now, and there was a possibility that he would
end up with an actual lower scale of pay and fewer benefits "
30 My discussion of only one of the Srruksnes criteria should not be
construed as an indication that I am satisfied that Farney's prefatory
statements complied with the other four
ii Cohen Bros Fruit Company, 166 NLRB 88,96
12 My conclusion is the same regarding Eisenhauer 's interrogation by
Remo , Respondent 's regional manager, on August 8, where there was not
even an attempt at compliance with the Srruksnes safeguards
LUBY LEASING, INC. 957
and as to the identity of the person who called on the
Union to organize Respondent's employees.
2. Promises of benefits
The complaint alleges that on June 24, 1971, Douglas
Farney and Jacob Lee, respectively Respondent's manager
and regional service manager, promised benefits to
Respondent's employees if they refrained from becoming
or remaining' members of, or supporting, the Union. I find
that the evidence does not establish this allegation.
During the interviews of Eisenhauer and Laub, employ-
ees of Respondent,33 the health insurance34 and other
benefits Respondent provided for its employees were
discussed. Concerning the latter, when Eisenhauer ex-
pressed ignorance as to their nature Lee offered to have
someone describe them to the mechanics.
Respecting the health insurance benefits, Farney, Res-
pondent's manager, told Eisenhauer, as the latter testified,
that Respondent "might be able" to pay the premium
being deducted from the wages of employees who desired
to have their families covered by Respondent's policy.
Eisenhauer further testified, however, that Farney express-
ly stated, in this connection, "I will not promise you that,"
During the interview of the third mechanic, Koone,
nothing was said on the subject of health insurance or
other benefits furnished by Respondent.35
The foregoing credible evidence does not, in my opinion,
warrant a finding that Respondent promised benefits to its
employees for the purpose of inducing them to refrain from
becoming or remaining members of, or supporting, the
Union as the complaint alleges. I will, therefore, recom-
mend that paragraph VI(b) and the relating portions of
paragraphs XIX and XXII of the complaint be dismissed.
3. Denial of benefits
The complaint alleges that Respondent denied benefits
to its employees because they became members of, and
supported, the Union. This allegation, relating to an
aborted picnic and the reduction in the number of truck
transfers made by Respondent's mechanics, like the earlier
one dealing with promises of benefits, is also unsupported
by the evidence.
The picnic: It appears to be Respondent's custom to have
a picnic for its employees and their guests each summer.
The 1971 picnic was held in Albany on July 31. In about
mid-July, Farney, Respondent's manager, was informed by
Respondent's manager in Albany that unlike previous
years employees who wanted to attend the 1971 picnic
would be required, before receiving their tickets, to notify
Respondent's Albany office not later than a week before
the picnic, on forms furnished to Farney, of their intention
33 Laub was discharged 5 days later
34 See supra, sec IV, B, 3, for detailed findings as to the provisions of the
health insurance policy maintained by Respondent for the benefit of its
employees and their families
35 Laub, with support from Allen who was present when he was
interviewed, testified that Farney told him that Respondent would pay the
cost of the family health insurance coverage and match or exceed other
benefits the employees might obtain through the intervention of the Union
This testimony, however, is lacking in corroboration from any credible
to be present and the number of guests accompanying
them.
Because of the press of other business Farney forgot to
distribute the forms to the employees in the Tonawanda
garage early enough for them to be prepared and
submitted in time to receive their tickets. Consequently,
they were unable to attend the picnic. To make up for this
loss Farney gave each employee a tank of gasoline.
As I view the evidence on this matter it would be fanciful
to find that Respondent's employees were deprived of their
picnic because of their union membership or support. It
clearly appears that the deprivation was caused solely by
Farney's negligence for which he made atonement by his
gift of gasoline to the employees concerned.
Truck transfers: I have already found that the need for
Respondent to transfer trucks from or to its Tonawanda
garage, which was great when the garage went into
operation, diminished upon Respondent's becoming well
established in Tonawanda. I have further found that it is
Respondent's practice to employ people specially for the
purpose of transferring trucks and also to use its mechanics
for this purpose when their doing so did not interfere with
their regular duties.
In accordance with this practice, trucks were transferred
by Respondent's mechanics before and after June 21, the
date on which they signed authorization cards. Thus,
before they signed cards Koone and Laub made two
transfers a month. The evidence does not disclose how
many trucks were transferred by Eisenhauer before June
21.36
Insofar as is shown by the record there were only five
vehicle transfers after June 21. None took place in July.
Two were made in August by Eisenhauer. Of the remaining
three, two trucks were transferred by persons specially
engaged to do so and one was carried out by Respondent's
service manager.
The General Counsel would have me draw the inference
that Respondent reduced the number of transfers made by
its mechanics after June 21 to penalize them for having
signed authorization cards on that day. Assuming that such
an inference could be drawn, which is extremely doubtful
on the record before me,37 it is also inferable that
Respondent's mechanics were not called on to make as
many transfers after June 21 as they made earlier because
of a reduction in the total number of necessary transfers
and because of Respondent's practice of dividing the
transfers for reasons of efficiency among Respondent's
mechanics and other persons.
Where, as here, two equally valid inferences can be
drawn, one innocent and the other that an unfair labor
practice has been committed, the former should be given
preference over the latter. Cf. N.L.R.B. v. McGahey, et al.,
etc., 233 F.2d 406, 413 (C.A. 5). Drawing the inference of
source Accordingly , for reasons already stated I reject it as being unworthy
of belief.
36 The record is also silent as to the total number of trucks transferred
before June 21 Accordingly. a comparison cannot be drawn between the
transfers made by respondent's mechanics and those made by people hired
specifically for this purpose
17 Especially is this so in view of the fact that, of the five transfers since
June 21, two were made in August by Eisenhauer, who admitted during his
interrogation on June 24 that he had signed a card on June 21.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
innocence, I find that Respondent did not reduce the
number of truck transfers made by its mechanics to punish
them for having signed authotization cards.
Accordingly, I conclude that the evidence does not
establish that Respondent denied benefits to its employees
because they became members of, or supported, the Union.
I will, therefore, recommend that paragraph VI(e) and the
relating portions of paragraphs XIX and XXII be
dismissed.
4. Surveillance of employees' union activities
Finally, in connection with Respondent's claimed inde-
pendent violations of Section 8(a)(1) of the Act, the
complaint alleges that Respondent engaged in surveillance
of its employees' union activity, which it sets forth was
carried on by Farney, Respondent's manager. In assessing
the evidence adduced by the General Counsel to support
this allegation two facts should be borne in mind.
The first is the short-lived nature of union activity by
Respondent's employees. It started on June 20, 1971, when
Laub, then employed as a mechanic by Respondent,
arranged for a representative of the Union to meet with
Respondent's employees. It seems to have ended the next
day upon the conclusion of the meeting, during which
authorization cards were signed. The second fact which
should be remembered in this regard is the custom
followed by Farney of making unannounced visits to the
premises of Respondent's lessees.
To establish the complaint's surveillance allegation the
General Counsel relies on two such visits by Farney in
mid-July at about the time of the hearing conducted in
connection with the representation petition filed by the
Union. On one occasion Farney appeared at a lessee's
plant while Eisenhauer, a mechanic in Respondent's
employ, was working there. Upon his arrival Farney spoke
to Eisenhauer and to a driver who worked for the lessee
about a truck's malfunctioning lights, went into the lessee's
office, and then left its premises.
On the occasion of the second visit, claimed by the
General Counsel to support the allegation of the complaint
here under consideration, Farney extinguished the lights
on his car before driving into the lessee's yard. Allen was
on duty there at the time.38 He questioned Farney as to his
reason for entering the yard without lights and suggested
that Farney "figured" by this tactic to "catch [him] doing
something wrong." As he had done during his visit to the
location where Eisenhauer worked, Farney, after talking to
Allen, entered the lessee's office and then went on his way.
Farney's having turned off the lights on his car, as
recounted above, and the coincidence in time between his
foregoing visits and the hearing in connection with the
Union's representation petition might cause a trier of the
fact to suspect that their object was to monitor the union
activities of Respondent's employees. In my opinion,
however, such a suspicion is overcome by the facts. They
show that it was Farney's habit to make unannounced
nocturnal visits to Respondent's lessees to talk to their
dispatchers and to check on the work being done by
Respondent's mechanics. They further show that during
the visits here under consideration Farney did nothing to
indicate that he was not following his usual custom.
Finally, and what appears to be a most important fact
negating the suspicion aroused by the visits in question is
that they were made weeks after the cessation of the short-
lived union activity engaged in by respondent's employees.
Respondent's knowledge as to this can be presumed, as is
well settled, in view of the small number of employees in its
garage.
However, as has been said countless times suspicion is
not a substitute for evidence and the evidence does not
persuade me that Respondent violated Section 8(a)(1) of
the Act by keeping its employees' union activities under
surveillance. Accordingly, I will recommend that para-
graph VI(d) of the complaint and the relating portions of
paragraphs XIX and XXII be dismissed.
B. Facts Concerning Respondent 's Alleged Violations
of Section 8(a)(3) of the Act by Discharging an
Employee
Clifford Laub worked for Respondent as a mechanic
from December 21, 1970, until February 1, 1971, and again
from February 15, 1971, until June 29, 1971.39 Laub and
Edgar Allen, whose employment until June 29 as Respon-
dent's service manager has already been described, are
brothers-in-law.
Like the other mechanics who worked for Respondent,
Laub's duties were performed, for the most part, at
premises of Respondent's lessees. On February 1, while
working outdoors at a lessee 's plant, Laub stopped work in
midshift because he thought it was too cold to continue.
Upon returning to Respondent's garage Laub left a note
informing Respondent that he had quit its employ.
Notwithstanding Laub's precipitate quitting, and largely as
a result of Allen's intercession on his behalf, Laub was
rehired by respondent on February 15.
As I have found, on June 16 Allen informed Douglas
Farney, Respondent's manager, that he wanted to resign as
service manager and return to the floor to work as a
mechanic. During their conversation on this subject at that
time Farney told Allen that "if he went back to the floor
... Laub would have to be terminated because [Respon-
dent] did not need to increase [its] unit, and with [his]
going back to the floor it would increase [the number of
Respondent's mechanics] to four . . . instead of three."
Allen replied that he "didn't care ... he had made his
decision to return to the floor and . . . was going to stick
to it."40 At the time of the foregoing conversation Laub
was the most junior mechanic on Respondent's staff and
was thought by Farney to be the least qualified.
Between June 16 and June 20 Allen and Laub talked
38 Allen had been Respondent's service manager As set forth earlier,
following his relinquishment of that position some 2 or 3 weeks before the
incident being discussed Allen remained in Respondent's employ as a
mechanic
39 Laub's discharge on the last mentioned date is alleged in the
complaint as having been violative of Section 8(a)(3) of the Act
40 My findings concerning this conversation between Allen and Farney
are based on, and the quotations appearing in the text are taken from.
Farney's testimony Allen denied being informed by Farney that his
reversion to the position of mechanic would result in the termination of
Laub's employment
LUBY LEASING, INC 959
with each other about Allen's impending return to the floor
as a mechanic. Allen told Laub that he had been informed
by Farney that his resuming the position of mechanic
would result in the termination of Laub's employment.41
Having been thus forewarned of his imminent discharge,
Laub hastened to make arrangements for the meeting, on
June 21, between a representative of the Union and
Respondent's employees at which they signed authoriza-
tion cards.
On June 29, a day before the man hired to replace Allen
as service manager began working, Allen returned to the
floor as a mechanic and Laub was discharged. Upon
Laub's dismissal, Allen took over Laub's shift.
Although, as has been shown, Farney, Respondent's
manager, decided on June 16 to discharge Laub in order to
make room for Allen in Respondent's garage, Farney did
not notify Laub of his decuon at any time before his
dismissal on June 29. Farney's reason for this, as he
testified, was that he "felt that if [he] gave [Laub] notice
before then . . . one of two things might happen: Number
(1) [Laub] would . . . walk off and leave [him] hanging
... until [he could] find a replacement,42 or Number (2)
. . if [Laub] did stay on . . . his work would possibly be
slow and not be accurate and would jeopardize [Respon-
dent's) operation."43
On about August 16 Allen and Laub jointly entered into
a lease and an operating agreement with Atlantic Richfield
Company (ARCO) whereby they became the lessees and
operators of an ARCO automobile service station. The
lease was for a term of 1 year and the operating agreement
obligated Allen and Laub to keep the station open 24 hours
a day. Respondent became aware that Allen and Laub had
entered into the foregoing contracts when it received an
inquiry from ARCO as to their credit and character.
On August 19 Allen quit Respondent's employ in order
to devote himself to the operation of the ARCO station.
Knowing that Laub was associated with Allen in this
venture, Farney, Respondent's manager, did not offer
Laub the job Allen had vacated.
C. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(3) of
the Act by Discharging an Employee
Respondent argues that it did not discharge Clifford
Laub because of his activity in support of the Union. Laub
was discharged, Respondent states on brief, in order "to
accomodate the return to the bargaining unit of [Edgar
Allen ] the service manager and because Laub was the
junior most and [in the opinion of Douglas Farney,
41 Laub denied any discussion with Allen concerning his dismissal upon
Allen's resumption of work as a mechanic Allen gave no testimony on this
subject My finding that this matter was discussed and that Allen told Laub
that he would be discharged when Allen returned to the floor is based on
Laub's denial, In N L R B v Walton Manufacturing Co, et al, 369 U.S 404,
408, the Supreme Court, quoting with approval from Dyer v. MacDougall, et
al, 20I F 2d 265, 269 (CA 2), stated "[T ]he demeanor of a witness
may satisfy the tribunal, not only that the witness' testimony is not true, but
that the truth is the opposite of his story, for the denial of one, who has a
motive to deny, may be uttered with such hesitation, discomfort, arrogance
or defiance, as to give assurance that he is fabricating, and that, if he is,
there is no alternative but to assure the truth of what he denies" In an
earlier portion of this Decision I set forth my dissatisfaction with Laub's
respondent's manager, the] least qualified mechanic in the
unit." Respondent's position appears to be well taken.
The law respecting discharges is well settled. "Manage-
ment can discharge for good cause, or bad cause, or no
cause at all. It has, as the master of its own business affairs,
complete freedom with but one specific, definite qualifica-
tion: it may not discharge when the real motivating
purpose is to do that which Section 8(a)(3) forbids."
N L. R. B. v. McGahey, et al., etc, 233 F.2d 406, 413 (C.A.
5).
Respondent's explanation for discharging Laub, unlike
the explanation for a discharge offered by an employer in
another case,44 does not "[fail] to stand under scrutiny."
Its asserted reasons for terminating Laub's employment
are, as will be shown, well supported by the evidence.
Having agreed with Allen when he was promoted to
service manager to permit him to resume his position as
mechanic when he desired to do so, Respondent was
obligated to honor Allen's request, made on June 16, 1971,
to return to his former job. However, Respondent did not
then, nor at any other material time, have a need for more
than three mechanics. As there were already that number,
including Laub, on its staff at the time of Allen's request, it
was, obviously, necessary for Respondent to remove one
mechanic from its roster to accomodate Allen.
Laub was the mechanic chosen for dismissal by Farney,
Respondent's manager, to make a place for Allen. This
choice appears to have been reasonable. Laub was the
most junior mechanic on Respondent's staff in point of
service and he was, in Farney's opinion, the least
qualified.45
Respondent's asserted reasons for discharging Laub are
supported by the evidence in several additional respects.
Thus, Allen's return to duty as a mechanic and Laub's
discharge occurred on the same day, June 29. When Allen
resumed work as a mechanic he took over Laub's shift.
Finally, in this connection, when Allen quit Respondent's
employ Farney did not offer the job vacated by Allen to
Laub because Farney knew that Laub was then associated
with Allen in a business venture which Farney thought
would occupy all of Laub's time for at least a year.
However, the evidentiary support found for Respon-
dent's asserted reasons for Laub's discharge does not end
the inquiry. What must further be determined is whether
Laub's union activity played any part in his being chosen
for dismissal to make a place for Allen in Respondent's
garage. If it did, then, as is well settled, Respondent
violated Section 8(a)(3) of the Act.
But, Laub's union activity could not have been a factor
in his discharge because it had not yet begun on June 16,
demeanor while testifying I stated that he "did not impress me as being
[a] candid [witness]" and that he "did not appear to be above telling
untruths, if by doing so [he] could disadvantage Respondent "(Supra, sec
IV, A)
42 In the light of Laub's having done this in February, as recounted
above, Farney's assumption that he might. in the circumstances, do so again
seems quite reasonable
41 This, too, seems reasonable
44 NLRB v Dant,etal,etc, 207F2d165,167(CA9)
45 Whether Laub was in fact Respondent 's least qualified mechanic is
not important. What is important is that Farney thought so In the
circumstances of this case Farney's judgment in this regard is not open to
question Vermeer Manufacturing Company, 187 NLRB No 128
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the day Farney, Respondent's manager, made the decision
to terminate Laub's employment. There is no credible
evidence in the record to establish that Laub engaged in
any union activity before June 20.
Between June 16 and 20 Laub learned from Allen that he
was slated for discharge upon Allen's return to the floor to
work as a mechanic. Perhaps in an effort to save his job,
Laub, on June 20, hastened to arrange the meeting, held on
June 21, between the Union's representative and his fellow
mechanics.
I find, therefore, that Laub's union activity was not a
cause for his discharge. Indeed, the reverse seems to be the
situation . Laub's knowledge that he was about to be
discharged appears to have been the cause for his union
activity.
Accordingly, I conclude that Laub's discharge was not
violative of Section 8(a)(3) of the Act. Consequently, I will
recommend the dismissal of paragraph IX of the complaint
as well as the relating portions of paragraphs XVIII, XIX,
XX, and XXII.
D. Facts, Contentions, and Conclusions Concerning
Respondent 's Alleged Violations of Section 8(a)(5) of
the Act by Refusing To Recognize, and Bargain
With, the Union
Insofar as is here pertinent, the complaint alleges that
Respondent violated Section 8(a)(5) of the Act by refusing
to recognize, and bargain with, the Union. The complaint
further alleges as an integral part of this claimed unfair
labor practice Respondent's asserted independent viola-
tions of Section 8(a)(1).
As I have already found, on June 22, 1971, after a
majority of Respondent's employees had signed cards
authorizing the Union to act as their bargaining represent-
ative, the Union requested that Respondent recognize, and
bargain with, it. Respondent did not accede to this request.
Instead, Respondent informed the Union, by letter dated
June 28, 1971,46 that it "doubt[ed] that [the Union]
represent[ed] an uncoerced majority of [its] employees."
In determining violations of Section 8(a)(5) of the Act
"under the Board's current practice, an employer's .. .
doubt [as to a union's majority] is largely irrelevant."47
Most relevant in ascertaining whether an employer
unlawfully refused to bargain by an outright failure to
recognize a union representing a majority of his employees
in an appropriate unit, as is the case here, is an assessment
of the employer's conduct when faced with the union's
bargaining request.
The Board has traditionally held that in such a situation
if the employer engaged in serious independent unfair
labor practices he also violates Section 8(a)(5) of the Act.
That there has been no erosion in this view of the law was
recently made plain by the Board. In United Packing
Company of Iowa, Inc., 187 NLRB No. 132, the Board
stated that its "historic practice of finding a violation of
Section 8(a)(5) . . . where an employer has . . . refused to
bargain and has committed serious violations of Section
8(a)(1) remains very much alive, having been specifically
affirmed in [N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, 620], where the contrary judgment of the Court of
Appeals for the Fourth Circuit was reversed."
I have found that Respondent committed independent
violations of Section 8(a)(I) of the Act. Among these were
threats, conditioned on the Union's advent, to close its
garage and to reduce the wages of an employee. "Threats
of loss of work [which would result from the effectuation of
respondent's threat to shut down its plant] and income are
a type of threat likely to have the most substantial impact
upon employee attitudes and reactions. By their nature
they may justifiably be regarded as serious violations of the
Act." 48
Accordingly, in consideration of the foregoing and
taking into account Respondent's intensive, systematic,
and coercive interrogation of the employees who were
threatened and the fact that all except one of respondent's
independent unfair labor practices were committed imme-
diately upon its receipt of the Union's request for
bargaining, I conclude that respondent violated Section
8(a)(5) of the Act by refusing to recognize and bargain with
the Union.
E. Facts, Contentions, and Conclusions Concerning
Respondent 's Alleged Violations of Section 8(a)(5) of
the Act by Unilaterally Changing Working
Conditions
The complaint alleges that Respondent further violated
Section 8(a)(5) of the Act by unilaterally changing working
conditions .49 Respondent denies that it did so.
The law governing this phase of the case is quite clear.
An employer required to recognize a union as the
representative of his employees, as here , who institutes
changes in their working conditions without first bargain-
ing with the union violates Section 8(a)(5) of the Act.
N. L. R. B. v. Katz, et al., 369 U.S. 736, 743, 747.
On July 15, 1971, without prior consultation with the
Union , respondent posted the following notice50 on its
bulletin board:
TO ALL EMPLOYEES
You are hereby reminded of the following work rules:
1. Each hourly employee is required to punch a
time card at his normal start-up time. Employees will
be paid from normal start-up time even if card is
punched early, unless an early start-up time has been
assigned.
2. Each hourly employee is required to punch out
at the end of his normal eight (8) hour day. Normal
quit time is eight and one half (8-1/2) hours after start
time.
3. Each hourly employee is required to punch out
and in for his lunch.
46 Resp . Exh 1 (3) Inasmuch as I believe that a remedy for these alleged changes, if they
47 N L R B v Gissel Packing Co, Inc, et at, 395 U S. 575, 594 were such, would be more effective if fashioned under Section 8(aX5) than
48 Cohen Bros Fruit Company, 166 NLRB 88, 90, under Section 8(a)(I) or (3) they will not be separately considered under
49 The complaint asserts that these alleged unilateral changes were not those sections
only violative of Section 8(a)(5) of the Act, but also of Section 8(a)(I) and 5O G C Exh 7
LUBY LEASING, INC. 961
4. It is not company policy (or has it ever been) to
stop work before normal quit time, for the purpose of
clean-up or clothes change, also all employees should
be ready to start work at their normal start time.
5. Each shift is allowed two (2) ten minute coffee
breaks to be taken whenever they are desired. However,
these breaks should not interfere with any emergency
repairs that must be performed durning [sic] his
respective shift.
Any violations will result in disciplinary action.
The General Counsel argues that each item in this notice
constituted a change in the working conditions of Respon-
dent's mechanics. It is Respondent's position that the
notice changed nothing.
Findings have already been made concerning the matter
here under discussion.51 Those findings show that items I
and 2 of the notice and the portion of item 4 dealing with
the time at which "employees should be ready to start
work" did not change any existing condition of employ-
ment. They merely stated rules already in effect.
The balance of item 4 deals with Respondent's "policy"
relating to cleaning up and changing clothes at shift end. I
earlier pointed out that the evidence as to what Respon-
dent required of its employees in this regard before July 15
was too inconclusive and confusing to permit a finding to
be made. This being so, it is impossible to determine
whether item 4, insofar as here relevant, constituted a
change in the working conditions of Respondent's employ-
ees.
As to item 3 of the notice, before July 15 Respondent's
employees were, as I have found, required to clock out at
the beginning, and to clock in at the end, of their lunch
periods. I have also found that they did not do this if, as
was usually the case, they were working at the premises of
a lessee at lunchtime.
On July 17, 2 days after the notice was posted,
Respondent's employees pointed out to Douglas Farney,
Respondent's manager, the time that would be lost if they
were required to return to Respondent's garage each day at
lunchtime for the purpose of punching the timeclock.
Accordingly, on July 19, item 3 of the notice was changed.
The alteration relieved Respondent's employees of the
requirement that they punch the timeclock at lunchtime, as
originally set forth. Instead, employees were permitted to
insert in writing on their timecards the time at which they
took their lunch. As thus modified, item 3 of the notice
made no real change in the working conditions of
Respondent's employees.
Before July 15, as I have found, Respondent's employees
were permitted to take as many coffeebreaks as they
desired during the course of their working day. Item 5 of
the notice limits "each shift [to] two ... ten minute coffee
breaks." This, in my opinion, is a substantial change in the
working conditions of Respondent's employees.
Respondent having thus changed the conditions of
employment of its mechanics with regard to coffeebreaks
without bargaining with the Union, as was its obligation, I
conclude that Respondent violated Section 8(a)(5) of the
Act. Insofar as is shown by the evidence, it does not appear
that Respondent made any other unilateral changes in its
employees' working conditions . I will, therefore , recom-
mend that all allegations of paragraph X of the complaint
be stricken except those relating to the change made by
Respondent in its rules dealing with its employees'
coffeebreaks.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's unfair labor practices, as found above,
occurring in connection with its operations set forth in
section I, above , have a close , intimate , and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
VII. THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8 (a)(1) and (5) of
the Act, my recommended Order will require respondent to
cease and desist therefrom and to take such affirmative
action as will effectuate the purposes of the Act. Concern-
ing the latter, the General Counsel urges the entry of a
bargaining order.
"A bargaining order ... is strong medicine." 52 It should
be prescribed, however, as the Supreme Court held in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 610,
614 615, to cure "a [Section ) 8(a)(5) refusal to bargain
where an employer has committed independent unfair
labor practices which have made the holding of a fair
election unlikely or which have in fact undermined a
union's majority . . ." The Court went on to say, quoting
in part from Franks Bros. Co. v. N.LR.B., 321 U.S. 702,
704, that in such cases if the Board were to "enter only a
cease-and-desist order and direct an election . . . it would
in effect be rewarding the employer and allowing him `to
profit from [his] own wrongful refusal to bargain.' "
Finally, and by way of summarizing its extensive discus-
sion on this point, the Court stated that where "the
possibility of erasing the effects of past [unfair labor]
practices and of ensuring a fair election . . . is slight and
that employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining
order, then such an order should issue."
In the light of the foregoing principles it is my opinion
that a bargaining order should issue in this case to remedy
Respondent's unfair labor practices. Like the unfair labor
practices present in Gissel, Respondent's threats to reduce
the wages of one mechanic and to close its garage, which
would result in loss of work to all, were so permeative that
"the possibility of erasing [their] effects and of ensuring a
fair election is slight." Such threats, the Board has held,
"may well be sufficiently pervasive in their impact to
prevent a fair election and to undermine a union's
support." Cohen Bros. Fruit Company, 166 NLRB 88, 90.
The Board's conclusion in Cohen was based on threats of
loss of work and income "directed at no more than 2
employees in a unit of 15." Here, the "impact" of the
51 See , supra, sec IV, B, 3
52 N L R B v Flomatic Corporation, 347 F 2d 74, 78 (C A 2)
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threats in preventing a fair election and in undermining the
Union 's support is deeper , having been directed at three
employees in a unit whose possible maximum is five.
In deciding that a bargaining order is warranted here I
have also taken into account Respondent's intensive,
systematic , and coercive interrogation of its employees.
This was so intermingled with its threats as to make
inseparable the effects of the interrogation upon Respon-
dent ' s mechanics from the pervasive impact the threats had
upon them.
Accordingly , my recommended Order will require
Respondent , by way of affirmative action , to bargain with
the Union upon request . Because of the seriousness of
Respondent 's unfair labor practices I will also recommend
the inclusion of broad cease-and -desist provisions.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the following conduct Respondent has engaged,
and is engaging, in unfair labor practices within the
meaning of Section 8(a)(1) of the Act:
(a) Coercively interrogating employees concerning their,
and other employees', attitudes toward, knowledge of, and
activities on behalf of, the Union.
(b) Threatening to close its plant and to reduce the wages
of employees should the Union succeed in becoming the
recognized exclusive collective-bargaining representative of
its employees.
4. All service department employees at Respondent's
Tonawanda, New York, plant and all mechanics employed
at Respondent's satellite operations in Rochester, New
York, and Cony, Pennsylvania, excluding all office clerical
employees, watchman, guards, and supervisors as defined
in the Act, constitute a unit appropriate for purposes of
collective bargaining.
5. At all times material herein the Union has represent-
ed a majority of the employees in the unit set forth in
Conclusion of Law 4, above.
6. By the following conduct respondent has engaged,
and is engaging, in unfair labor practices within the
meaning of Section 8(a)(5) of the Act:
(a) Failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining represent-
ative of the employees in the unit set forth in Conclusion of
Law 4, above.
(b) Changing terms and conditions of employment of
employees in the unit set forth in Conclusion of Law 4,
above, concerning their taking coffeebreaks without
bargaining thereon with the Union.
7. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(3) of the Act by
discharging Clifford Laub.
8. The unfair labor practices engaged in by Respon-
dent, as set forth in Conclusions of Law 3 and 6, above,
affect commerce within the meaning of Section 2(6) and (7)
of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 53
ORDER
Respondent, Luby Leasing, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their,
or other employees', attitudes toward, knowledge of,
activities on behalf of, or as to any other matter relating to,
District No. 76, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other labor
organization.
(b) Threatening employees with the closing of any of its
garages or plants, or the reduction of wages, or any other
form of reprisal, or effectuating any such threats, for
joining assisting, or in any manner supporting District No.
76, International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization.
(c) Threatening to close any of its garages or plants, or to
reduce wages, or to take any other form of reprisal against
employees, or effectuating any such threats, should District
No. 76, International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other labor
organization, succeed in becoming the recognized collec-
tive-bargaining representative of any of its employees.
(d) Failing or refusing to recognize District No. 76,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive collective-bargaining
representative of its employees in the following appropriate
unit:
All service department employees at its Tonawanda,
New York, plant and all mechanics employed at its
satellite operations in Rochester, New York, and Corry,
Pennsylvania, excluding all office clerical employees,
watchmen, guards, and supervisors as defined in the
National Labor Relations Act, as amended.
or failing or refusing to bargain with District No. 76,
International Association of Machinists and Aerospace
Workers, AFL-CIO, respecting rates of pay, wages, hours,
or other terms or conditions of employment of its
employees in the aforesaid appropriate unit.
(e) Unilaterally changing any conditions of employment
of its employees in the aforesaid appropriate unit, or in any
other manner refusing to bargain with District No. 76,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive collective-bargaining
representative of its employees in the aforesaid appropriate
unit.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, loin, or assist labor organizations, to
bargain collectively through representatives of their own
53 In the event no exceptions are filed as provided by Section 102 46 of Section 102 48 of the Rules and Regulations, be adopted by the Board and
the Rules and Regulations of the National Labor Relations Board, the become its findings. conclusions, and order, and all objections thereto shall
findings, conclusions, and recommended Order herein shall, as provided in be deemed waived for all purposes
LUBY LEASING, INC.
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the National
Labor Relations Act, as amended, or to refrain from any or
all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment in
conformity with Section 8(a)(3) of said Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Upon request, recognize and bargain with District
No. 76, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive collective-
bargaining representative of its employees in the aforesaid
appropriate unit respecting rates of pay, wages, hours, or
other terms or conditions of employment and, if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Restore the practice in effect before July 15, 1971,
concerning the taking of coffeebreaks by its employees in
the aforesaid appropriate unit and continue said practice
until it shall have been the subject of collective bargaining
with District No. 76, International Association of Machin-
ists and Aerospace Workers, AFL-CIO.
(c) Post at its premises in Tonawanda and Rochester,
New York, and Corry, Pennsylvania, copies of the
attached notice marked "Appendix." 54 Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by its authorized
representative, shall be posted by it 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.
(d) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of the receipt of this Decision,
what steps Respondent has taken to comply herewith.55
IT IS FURTHER ORDERED that paragraphs VI(b), VI(d),
VI(e), and IX of the complaint and the relating allegations
of paragraphs XVIII, XIX, XX, and XXII of the complaint
be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that the allegations of paragraph
X of the complaint, except those relating to the change in
Respondent's rules concerning the taking of coffeebreaks
by its employees, be, and the same hereby are, stricken.
54 In the event that the Board's ORDER IS ENFORCED BY A
Judgment of a United States Court of Appeals, the words in the notice
reading "Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States Court
of Appeals Enforcing an Order of the National Labor Relations Board "
55 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 3, in writing, within 20 days from
the date of this Order, what steps Respondent has taken to comply
herewith "
963
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice and we intend to carry out the order of the
Board, and abide by the following:
WE WILL NOT question you about anything connect-
ed with District 76, International Association of
Machinists, or any other union.
WE WILL NOT close any of our garages, or reduce
your wages, and we will not threaten to do any of these
things because you join, sign a card for, or help District
76, International Association of Machinists, or any
other union, or because you have already done any of
these things.
WE WILL NOT close any of our garages, or reduce
your wages, and we will not threaten to do any of these
things if District 76, International Association of
Machinists, or any other union becomes your bargain-
ing representative.
WE WILL NOT change any condition under which you
work without first talking about it with District 76,
International Association of Machinists. -
WE WILL go back to the coffeebreak system we had
before July 15, 1971, and WE WILL NOT change it
without first talking about it with District 76, Interna-
tional Association of Machinists.
WE WILL, if we are asked to do so, recognize and
bargain with District 76, International Association of
Machinists, about your rates of pay, wages, working
hours, and other matters relating to your work and
employment. If we come to an agreement about any of
these things with District 76, International Association
of Machinists, we will put that agreement in writing
and sign it.
WE WILL RESPECT YOUR RIGHT TO FORM ANY UNION,
TO JOIN ANY UNION, TO HELP ANY UNION, AND TO
BARGAIN WITH US THROUGH ANY UNION. WE WILL ALSO
RESPECT YOUR RIGHT NOT TO DO ANY OF THESE THINGS,
EXCEPT AS REQUIRED BY LAW.
We have no objection to our employees becoming or
remaining members of District 76, International Associa-
tion of Machinists, or of any other union.
Dated By
LUBY LEASING, INC.
(Employer)
(Representative) (Title)
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced by Any questions concerning this notice or compliance with
anyone. its provisions may be directed to the Board's Office, Ninth
This notice must remain posted for 60 consecutive days Floor, Federal Building, 111 West Huron Street, Buffalo,
from the date of posting and must not be altered, defaced, New York 14202, Telephone 716-842-3100.
or covered by any other material.