Mark I Tune-Up Centers, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1981

256 N.L.R.B. 898 (N.L.R.B. 1981)

MARK I TUNE-UP CENTERS, INC.
Mark I Tune-Up Centers, Inc. and Automotive, Pe-
troleum and Allied Industries Employees Union,
Local 618, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, District 9, Internation-
al Association of Machinists and Aerospace
Workers, AFL-CIO, Jointly. Cases 14-CA-
12530 and 14-RC-8873
June 24, 1981
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
On July 21, 1980, Administrative Law Judge
David P. McDonald issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting memorandum.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
' li Re'spondet ha excepted ceratin crecdibiil findings made h,
lhe Ainhliilal(i\xC I a JIge It i 1c Iiald', c~Utahli hCd poio> nlot to
it, irrtlIC I a illii111"uai li \ u dth's rc'so tltuitisl stili r,speci Yo .ucdi-
hiit\ illessI , tihe car p lc'llp dclal icc of all J' lile uci'sli lt cidici.ce C(li-
slr i I hL t t l i t i ti r.' 1 i)tl ls ;i 1711 rCCI S l iAailt d l )ri' 11'/J11 / rt l'.
Ira:, I Ni RB 44 IW5O). entd I1t F 2d iit2 3l (i, 1,)51 Wr ha\e
car i ull) e'%i mllictd thie record Lit i d 1i to htis '~li r ll i/Ilings
Ill adOplillg Yhe ,A driiSLtali(c I av -JudeC' fin ll Itllll l Rc pHI d-
tfiJ cligagL I T1 ohjcchOlla '. OlldkclJ , .l i]c tha l ill ad,,'F{cIil ? I ln-
Child d ill hlli 11111 t iJlille 11 1 \111 Kal O loll% (a)(1} L IJ-1 hll iCh he
relied . a JortioI I tI l illlg the c'tcil) i i',ic . 1 AS I CL' I.5 ti ilwil icc-urring
after lit tc'i lion h,i Repsnldci ll 'ars i'tt (,tart LIl Si.f S'ii t anid fl'iii'c
2 Ili adopling T hi e Adrtl istrll ait c ai s Judge' sl l t I i i tllI i that il(e Re-
,pondert ll] ,icaied Sec (a)i3) ani (1 (il l hc dsiischargiTg Re rt
Spiess. ', d rlot i s Oiii thlie Adiiti l' i s 11\1e I, Jllht
.
Jld c i CIIsllt hat
Spiess' urlIO aCli.lle' \.crc I2ll "piedommlli tcaso for i, icharIgc"
W'' ha.is.' ilisead UllaI,/ d lhe iccord I li h t I ' idtctliar, ies set
forth i WVrLmh tim, Di t'/fti!/ I r/'lh Ltt. t, -, 251 N R 103
(1980). isstiud si".Lihs'liill ITO tile Adrililli%traislc I a Judge'% I)tciiont
Filiploiti lg Iltal test, 'te irld {hit tie (ClTa (<'ltILI IlsiatC prlti: elm,
shltw. tg Ihait Spiess' un iI * i \as a tl1oll5 lrilt ailo ill liLe R'-
SpOlIlIIS' s tiecis1t ill t discliirgC p ss The I esptiindieitts i', Olln t itriss,
Matager 1)ili Siaiefler. aIrt1ittd kIil oldege if Spies's alIIOIt lCtI I ll
addlition, the Respondent's aliti', lostard the tiO Ii ge'iael taa
Spiess' uilOli aiciIsIl I1i parliutilir is iipik dlcriituhlalcdt. h I he re'cord
heretin O t cectii da, pritti tt Spies.' Lsting I t ( ii hilloo. Spies, ,t as
tie of the three et1lpiti.e's th tilie Adtiliiitrai I s Jttite Litid ste
has futd were he ihC l't it.rsats mad h Shicffer Slacffcr a ht
time told Spiess alld Ito otlier t'limp]OiCi t thai c \tas li a fitll Ill 111 l
because 3 ears eathicr is parelts' is had hcii threalhricid b tile
lniion, ad that if he Unio si lie could nio toigc'r he a 'iCL' glg,' hut
256 NLRB No. 138
and conclusions 2 of the Administrative Law Judge
and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Mark I Tune-
Up Centers, Inc., St. Louis, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election in
Case 14-RC-8873, held on April 13, 1979, be, and
it hereby is, set aside, and that case is hereby re-
manded to the Regional Director for Region 14 for
the purpose of scheduling and conducting a second
ci tld he Xlrenlely stcrn arid go compleely bi the hbiroks " He also re-
peated a threal made earlier at a; sries of six preelecition speeches that
siloidilt' the I'l, ill the niplosces lNotuld lst their curreli shop privr
-
cgC (nItisslilll Il lse l' teRc'splmiitilt's sop aill Is ii) repair heir
1,til crs aid till hIll parts it cot)II Also, Nke ha e adopted tle Acitnils-
IIll, ilt Ia J/ltge'% 'tl f i rdlg t lal ti e Rcsp ondent uni I.rt tll gral i tedc
Spies, Lt i ce lditct() rldL td titelluried homUt% otl Marclh
]he Rspilti n1i. ii rhimll of tle (GC'iinral Counsel's ,oamn fille case.
cileliltis I lill i dihschiIIarged Splss, dspite ha i cionicedes to he Spiess'
sipelir kill as IllchllC hc',useC Of li poor atmude Ilttard hi, lsu-
plllls sls atll eh ftll- cnrlplt cc, ai tl ]lr specfl'lc i ciderts lllisted ill the
docurliCilt prcsented Ih ll lItii it his April 21 discharge We adopt the Ad-
rlt islt al ' Ia it JuIdgc's fidilIg ftlat, althuigh llc crctlIte c idelice
pti\% Sc,' ,as 'Tar less Ihii i dciia eilpltsec- (lice adllud hoth
thai it' tiook alll iuatlorlr/Cd day i sick ca,. cll Marc h 20 alnd hat he
*t[IS lIt'll ale), All f till' ilcgccd 11t c lIll s of isc1itrdc JIt tecrc eitler ig-
m~rill I ctioidt h. [lit Rcpit lldcill, t lihI fited I t disciplinc Spiess
alt all prior Ii lis April 2t iscliirgc ideed. as he Administranii' ast
JIdgt'e flund. Spit'ss hid hccri pOlt)iued io scclnd-shlfI spcrSilr III
1978. altd lii March 1g l,'7N. lic t Lis g cri tile ahoe-tietilioetd boius,
i'cctl> ftt itltid i itl a ld imurc' iffical st rk Nothing Ii tice crediled
Ce\itiIcic 1111\ t i its altic' itt st irk habits had c'liilaged sigitificaritl
II1 lht pCIltSd r'cc'tilig Ills dIsi lliirgc A, lie Adniiriitrattie Iat Judge
riolled. tis Ii t itlhIC c lillIIIc Stas Sptess' liIti ac{~iS it der tit ese c r-
clitrnsirces. ,c id ihai tihe RespldtiI ll as faited i, rehut ilce Geiteral
("(111S 1",pr;H/ /l(}'C;i,,c' f dl*CtII1uimaing Lirltlili1rllO 11 olalio11 r Io
pro t Tlhat it stuiltult ldic i, l.iharcd Spi s ilt tlc' ahserce {tt' such UlI]ass-
ftU tIt1liaUioII W'c lcrc'fhtrc otticludc. Ii agrueiectt tl lhc Adiinis-
trailsi' I ass Judgc that Ihic Rk's.iIldls'11 S0i l'c See (a)(3) and (I) y
Ashli gulg Spless
:; 1 i cc'lrdlllc' \sith his prtial disscu i ()[i'rrlpuipl,' i-dit
1
( 'rlealiut,.
251 NlRh 14t, I 11e}}, Nc'ihcr Jelkiii, \toud aard iterc's ii1 the
ackpt,,dec bsct li i ll te fitrilLIa sl frh tilerein
898
MARK TUNE-UP CENTERS, INC. 899
election at such time as he deems that circum-
stances permit a free choice on the issue of repre-
sentation.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
DAVID P. McDONALD, Administrative Law Judge:
This case was heard before me at St. Louis, Missouri, on
June 4 and 5, 1979,1 pursuant to a complaint issued by
the Regional Director for the National Labor Relations
Board for Region 14, on May 10, with an amendment to
the complaint on May 11. In addition, on May 14, the
Regional Director ordered consolidated certain issues
arising from a representation election in Cases 14-RC-
8873 and 14-CA-12530. The complaint, based on
charges filed on April 23, 26, and 27 and May 9, jointly
by Automotive, Petroleum and Allied Industries Em-
ployees Union, Local 618, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called Teamsters Union,
and District 9, International Association of Machinists
and Aerospace Workers, AFL-CIO, herein called Ma-
chinists Union, alleges that Mark I Tune-Up Centers,
Inc., herein called Respondent, engaged in violations of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended. Pursuant to a petition, a Stipulation for
Certification Upon Consent Election was executed by
Respondent and the Unions and approved by the Re-
gional Director on March 27, 1979. An election was con-
ducted by secret ballot on April 13 and 16, among the
employees in the following unit:
All employees employed at the Employer's facilities
at 11018 Page Avenue, 8426 Manchester Avenue,
8502 Manchester Avenue, 10607 Concord Village,
10825 Old Halls Ferry Road, 1250 Old Orchard
Center, St. Louis, Missouri; 1355 South 5th Street,
St. Charles, Missouri, and 10505 Lincoln Trail, Fair-
view Heights, Illinois, EXCLUDING all office
clerical and professional employees, guards and su-
pervisors as defined in the Act.
An official tally of ballots was served on the parties at
the conclusion of the election, setting forth the follow-
ing: Of 16 valid votes counted, there were 3 for, and 13
against, the Union. Challenges were not sufficient in
number to affect the results of the election.
The Union filed joint objections to the election based
on conduct engaged in by Respondent. On May 14, after
investigating the objections, the Regional Director issued
his Report on Objections and Recommendation and
notice of hearing, which ordered a hearing to resolve
substantial and material questions of fact relating to Re-
spondent's conduct as raised by Objections 1, 2, 3, 5, 7,
and "other Acts and Conduct" as to Parts A and B.
The primary issues are whether Respondent: (I) violat-
ed Section 8(a)(1) and (3) of the Act; (2) engaged in con-
' Ali dates herein refer to 1979 unless otherwise indicated
duct which prevented a fair election; and (3) whether the
election should be set aside.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs
were filed on behalf of the General Counsel and Re-
spondent.
Upon the entire 2 record of the case, the briefs, the ar-
guments made by the parties at hearing, and my observa-
tion of the witnesses and their demeanor while testifying,
I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent admits that it is a Missouri corporation
with an office and place of business in St. Louis, where it
is engaged in the retail business of automotive repairs,
that during the 12-month period ending March 26, which
period is representative of its operations during all times
material hereto, Respondent, in the course and conduct
of its business operations, derived gross revenues in
excess of $500,000, and purchased and caused to be
transported and delivered at its Missouri facilities auto-
motive parts and other goods and materials valued in
excess of $50,000 of which goods and materials valued in
excess of $50,000 were transported and delivered to its
Missouri facilities directly from points located outside
the State of Missouri. The complaint alleges, Respondent
admits, and I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
11. LABOR ORGANIZATIONS
The Teamsters Union and the Machinists Union are
labor organizations within the meaning of Section 2(5) of
the Act.
111. REPRESENTATION PROCEEDINGS AND THE
ALI..EGED UNFAIR LABOR PRACTICES
A. Background
Two related, but separate, matters are involved in this
proceeding. The first is concerned with the validity of
objections filed jointly, by the Teamsters Union and the
Machinists Union, regarding Respondent's conduct af-
fecting the results of the representation election which
was held on April 13 and 16. The second facet of this
case deals with a series of events occurring within 3
months preceding the election and two discharges after
the election. The complaint alleges that Respondent has
committed a series of unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
Respondent is a privately held corporation, founded in
December 1971, with only seven stockholders holding
the majority of the stock. Approximately 15 additional
minority stockholders are comprised of employees who
exercised their options to buy shares. Included in the
group was James Hanner with 2,200 shares, Geerge
2 Errors in the transcript have been noted and corrected
MARK I TUNE-UP CENTERS. INC 99
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brier with 12,000 shares, David Protte with 400 shares,
and Rick Daugherty with a few hundred shares. Gary
Lowry serves as corporate president.
Respondent introduced a bonus or incentive plan for
its employees in January 1978. It was based on the
amount of parts and labor sold over and above the basic
job, such as tuneup or brake work. The mechanics' an-
nualized monthly salary was established by multiplying
his hourly rate by 40 hours, by 52 weeks, and dividing
by 12 months. The resulting quotient was then doubled
and this final sum represented the annualized monthly
salary (AMS). If a mechanic sold parts and labor to
equal or exceed the AMS, then he was entitled to a
bonus of 5 percent of the excess. A penalty of 7 percent
was imposed on returns or dissatisfied customers.
On January 30, Respondent's board of directors dis-
cussed the employees' wage and bonus structure. Several
individual employees and managers had complained that
the then-current bonus and wage schedules were unfair.
One director suggested that Lowry set up a meeting to
explore the feelings and attitudes of the individual em-
ployees concerning bonus and wage questions. On the
following day, Lowry notified his employees that he in-
tended to hold a meeting on February 14, with all em-
ployees except managers, for the purpose of discussing
wages and bonuses and to receive suggestions or criti-
cism concerning their employment. Although 90 percent
of the discussion centered around wages, some com-
plaints were expressed concerning the cost of work uni-
forms. Under the existing system the Company paid 25
percent for the uniform during the first year, 50 percent
the second year, 75 percent the third year, and the full
amount beginning the fourth year. Since the men were
required to wear the uniforms, they felt the expense
should be paid by the Employer.
At the January 30 meeting, the board of directors also
discussed the possibility of closing the Fairview Heights
store for economic reasons. At their December meeting
they had decided to close the store based on the original
budget and projections for fiscal 1979. However, due to
revisions in the budget it was decided to postpone the
closing and monitor the store on a month-to-month
basis.3
The 41st meeting of the board of directors of Mark I Tune-up Cen-
ters, Inc., was held on January 30, 1979, at 3:30 p.m. at the corporate
offices, 8502 Manchester Road, Brentwood, Missouri. The following
members of the Board were present: G. Lowry, A. Miller, D. Neville, A.
O'Brien, E. Bock, and J. Tully. Preston Estep was absent. The following
topics were discussed:
Item . The budget and projected sales for 1979 were reviewed
and approved as presented. In conjunction with this, it was agreed
that the Fairview Heights center not be closed as originally decided
at the last meeting, but rather be kept open for the time being, with
periodic reviews of its progress.
Item 6. Gary Lowry brought up the subject of the employees'
bonus plan and the many complaints he has been receiving about it.
A bonus plan of some type has been in effect for the past 2 years and
has increased our average ticket by about $3. He asked for sugges-
tions on other types of incentive plans to use to motivate mechanics
and increase productivity. Doug Neville suggested that Gary have a
meeting with all the mechanics and ask them their thoughts about
the present plan and their suggestions for changing it. A few of the
directors would try to attend.
Item 7. A schedule of directors' meetings for the ensuing year was
established as follows: March 21, May 16, July 18, September 19,
I. Initial union meeting
George Brier and Richard Daugherty, Respondent's
employees, met with Donald Schwartz and Chuck Mer-
rill of Local 618 of the Teamsters Union. Schwartz was
an organizer for Joint Council 13 of the Teamsters. The
meeting was held at a Ramada Inn on February 27. The
purpose of the meeting was to explore the advantages
and benefits of union representation and what was in-
volved in starting a union. Later that day and on the fol-
lowing day, Brier spoke to several of his fellow employ-
ees to ascertain whether there existed sufficient interest
to justify an effort to organize a union.
2. Second union meeting-March 1, 1979
Again Brier and Daugherty met with Schwartz and
explored the exact procedure for founding a union.
Schwartz explained that the first step is to acquire the
signatures of a majority of the mechanics on union au-
thorization cards, which would designate the Teamsters
Union as the collective-bargaining representative.
Schwartz testified that:
.. .we told the people what they had to do to or-
ganize and what the repercussions would be, what
retaliations the company usually proceed with, say
you are a bunch of gangsters or a bunch of crooks
and all the things of this nature which was brought
out here early today, which is not true. And pres-
sure would be put on them. They would probably
be given increases in wages and so on and so forth
but next year you are back in the same boat if you
don't organize.
Brier read the authorization card, filled in the informa-
tion, signed and handed it back to Schwartz. Then
Daugherty signed and returned the card. The two men
proceeded to the Page facility where they spoke to Dan
Landolt, Mike Herbert, Bob Spiess, Dave Protte, and
Jim Saia. After these men read the cards they completed,
signed, and returned them to Brier who placed them in
the mail. They then drove to the South County store
where the procedure was repeated and James Hanner,
Bob Hering, Dennis Tochette, and Brian Schrama
signed. In the days that followed several other employ-
ees signed the cards.
Within a few days, 16 signed authorization cards were
received by the Teamsters Union, Local 618. On March
6, 1979, Schwartz sent to Gary Lowry a demand for
union recognition by Teamsters Local 618. The letter
simply stated that the Union currently represented a sub-
stantial majority of the Mark I mechanics at the Page
store and requested a meeting for the purpose of begin-
ning contract negotiations.
3. Third union meeting-March 7, 1979
The third meeting was held at the Teamsters union
hall and was attended by Brier, Daugherty, Protte, Her-
and December 19. All meetings will start at 3:30 p.m and will be
held at the corporate offices, 8502 Manchester Road., unless notified
otherwise.
MARK I TUNE-UP CENTERS, INC. 901
bert, Spiess, Landolt, and Zimmer. A representative of
the Machinists Union, Local 777, was also present. At
that time, Schwartz advised the men that it was in their
best interest to be represented by both Unions and there-
fore he recommended they should also sign the Machin-
ists authorization cards. He told them that both the Ma-
chinists and the Teamsters Union should represent them
jointly. Dave Protte later testified:
We were told that the Machinists Local 777 actual-
ly was a better union for us. They were represent-
ing most of the mechanic shops in the area. I be-
lieve they represented dealerships. That it would be
the best for mechanics to go to 777, 618 would
cover, like, warehousemen, the oil change and lube
men, and the main thing was that we would benefit
from 2 unions.
Without exception, the men who attended the March 7
meeting signed authorization cards for both Unions.
4. George Brier's discharge
George Brier was employed by Respondent in various
capacities and locations from October 4, 1974, until the
day of his discharge, March 26, 1979. Initially he worked
at the Page store for approximately 1 year as a mechan-
ic, until he was transferred to the North County store as
manager. Then on November 6, 1978, he returned to the
Page store as a mechanic.
On Wednesday, January 10, Brier stepped outside the
garage to retrieve a customer's car. The parking lot was
covered with ice. As he walked forward he slipped and
fell to the ground. He reported the fall to the assistant
manager. Two days later, he was seen by his physician,
Dr. Ralph Barrale, who initially diagnosed his problem
as a "low back condition," which he later referred to as
a "lumbar sprain." On each visit Dr. Barrale provided a
letter addressed "To whom It May Concern" and simply
stated that Brier's recovery was slow and extended his
return to a future date. At the time of the hearing, Brier
was still unable to return to work. The letters indicated
Dr. Barrale treated Brier on January 12, February 6, 17,
and 28, March 16 and 27, and April I1. After the first
visit, Brier called Lowry and informed him his doctor
advised him to remain off work for 30 days. Brier quoted
Lowry's response as: "Yes, that was fine, just keep him
posted." Nothing was said during this conversation con-
cerning his discharge or a definite day as to when he was
required to return to work. Although Brier testified that
he kept a copy and promptly forwarded each letter,
Lowry stated he did not receive Dr. Barrale's letters
dated March 16 or March 27. The letter of February 28
advised: "At this time Mr. Brier should be able to return
to work on approximately March 19, 1979." Lowry testi-
fied that he relied on the February 28 letter and, there-
fore, when Brier failed to return to work on March 19,
he informed him, by letter of March 26, that he was dis-
charged.4 Although Brier insisted he had mailed all of
4The March 26 discharge letter read:
This letter is to notify you that you are discharged from Mark I
Tune-up Centers, Inc. for not reporting to work on Monday, March
19, 1979. According to the most recent correspondence from your
the medical reports, Lowry adamantly denied the receipt
of the letters of March 16 and 27. These letters extended
Brier's medical leave to April 2 and 16, respectively.
When Brier received the discharge letter on Tuesday,
March 27, he testified that he called the corporate office
of Mark I Tune-Up Centers and spoke to a receptionist,
whom he believed to be Brenda. The woman who an-
swered the telephone informed him that Lowry would
not return to the office until April 2, the following
Monday. When he called on Monday he was again in-
formed that Lowry was not in the office. Although he
claims he left a request for Lowry to call him he never
received a return call.
Lowry denied ever receiving a call or message from
Brier after March 26. The personnel at the corporate
headquarters was limited to his secretary, Brenda Bay-
less, a warehouse manager, Bob Heinz, and a warehouse
helper, Ken Trower. A search of the payroll records re-
vealed that Brenda worked each day from March 27 to
April 13. Therefore, if Brier spoke to a woman during
this period it was Bayless. Bayless testified that she is fa-
miliar with Brier's voice and is absolutely certain he did
not call the corporate office between March 27 and
April 13. If the caller leaves a name she writes it down;
however, these memos are not permanently maintained.
After his attempt to contact Lowry on March 27 and
April 2, Brier admits he neither spoke to nor contacted
anyone in management concerning his discharge until
April 13, the day of the election. When he arrived at the
Page facility he requested Don Schaeffer to look at his
work release and explain to him why he was discharged.
Brier alleges that Schaeffer said "that he was not the
least bit interested in seeing them." Schaeffer denies that
he was ever asked to examine the discharge letter. He re-
called Brier entering the shop 10 to 15 minutes before
the beginning of voting and stating, "Hi, Don, I am here
to vote yes." Schaeffer replied, "Well, I don't know if
you are eligible to vote or not. I heard that you had been
terminated by the company for not coming back to work
on time." Brier insisted that he had sent letters to Lowry
which extended his sick leave beyond March 19. The
conversation then turned to the pros and cons of union
representation.
Brier had served Respondent as a manager for 3 years,
until November 6, 1978. As manager, his understanding
of company policy as to illness or injury was simply to
keep the Company informed as to the status. If the medi-
cal problem was lengthy, a written doctor's statement
was required. He cited the case of Richard Twardawski
as an example of the Company's lax enforcement of its
policy. Early in 1978, Twardawski injured his back. Two
or three times his physician released him to return to
work. Each time he would appear for work several days
after the release date. He was not discharged until after
the second or third time he failed to report for work.
doctor, Ralph Barrale, you were able to return to work on Monday,
March 19, 1979. We have received no further communication from
you since that date. Your final pay check for 4 days vacation pay
due you will be mailed shortly.
MARK I TUNE-UP CENTERS, INC. ::
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Board meeting-March 21, 1979
At the 42d meeting of the board of directors the prog-
ress of the Fairview Heights Center over the previous 7
months was discussed. The unit growth had decreased
drastically each month since September 1978. Lowry
voiced his opinion that the store should be closed, and
this move was unanimously approved by the directors.
Lowry was instructed to sell the center as an ongoing
business.
Lowry gave a report concerning the meeting held on
February 14, with their mechanics. The mechanics had
voiced their displeasure with the current wage and bonus
plan. Upon Lowry's recommendation the board of direc-
tors voted unanimously to convert the bonus plan to
straight wages based on the individual mechanic's aver-
age hourly bonus over the past 12 months. In order to
maintain some equality among the mechanics, a new base
wage was established with March 26 as a projected com-
pletion date. To offset the fact that some individuals
might experience a decrease in their wages, the board
voted to pay the complete cost of the mechanics' uni-
forms. To offset the additional cost, Lowry also recom-
mended a $4 increase in the price of their tuneups.5
5 The 42d meeting of the board of directors of Mark I Tune-Up Cen-
ters, Inc., was held March 21, 1979, at 4:30 p.m. at the corporate offices,
8502 Manchester Road, Brentwood, Missouri. The following members of
the board were present: Gary Lowry, Alan Miller, Douglas Neville,
Edward Bock, and Albert O'Brien. Joseph Tully and Preston Estep were
absent. The following topics were discussed:
Item 5. The progress of the Fairview Heights center over tile last
7 months was discussed and compared to the center in St. Charles.
Unit growth at Fairview has decreased drastically every month since
September '78 and it is Gary Lowry's opinion that the center be
closed. This decision was approved unanimously and Mr. Lowry
was directed to try to sell the center first as an ongoing business con-
cern and to report back to the board on any progress.
Item 6. A motion was made and approved that the company make
a tender offer to purchase up to 1,000 shares of the company's
common stock from any existing shareholder at a price of 50 cents
per share. There are 18R shareholders owning less than 1,000 shares
each, for a total of 6,971 shares. This offer is all attempt to reduce
the number of smaller shareholders
Item 7. Gary Lowry made a report on the meeting he and Alan
Miller held with all the company's mechanics on February 14, 1979.
He expressed worry over the complaints the mechanics had about
the bonus plan. It seemed that this was the subject of 90 percent of
the meeting. Mr. Lowry suggested that we change the bonus plan to
straight hourly wages because it was apparent from the mechanics'
meeting that most of them did not favor the present bonus plan, we
offer, and instead would prefer the money paid in actual hourly
wages. Mr. Lowry was sure that converting the bonus plan would
result in a lower average ticket, however. To offset this, he suggest-
ed we raise our tuneup price $4 to be put into effect as soon as the
advertising could be changed. The last price increase was June '78
and a raise was given to all employees at that time. The board voted
unanimously to convert the bonus plan to straight wages based on
the individual mechanic's average hourly bonus over the past 12
months. At the same time, to keep some equality among the mechan-
ics, we should try to establish a new base wage. This conversion
should be completed by the next pay period, March 26. To offset the
fact that some individuals may actually have a small decrease in their
hourly wages after the conversion figures are completed, the board
also voted to begin paying the complete cost of the mechanics' uni-
forms. It was felt that this change in the pay system would result in
an upgrading of the caliber of personnel we have working for us,
reduce employee turnover, and increase productivity.
6. Respondent's preelection meetings
At the end of March, Schaeffer sought permission
from management to address all the employees on behalf
of Respondent. He felt his 7 years of experience with the
Company provided him with insight which newer em-
ployees might lack. Lowry accepted his offer ad in-
structed Kirt Carlson to assist him. The three men dis-
cussed the general topics and details as to how the infor-
mation should be presented to the men.
There were six meetings beginning with Fairview
Heights and South County on April 6, followed by Page
and Ferguson on April 10, and then Manchester and St.
Charles on April 12. Schaeffer was the primary speaker
with Carlson adding a few statements or answering a
few questions near the end of each program.
Schaeffer opened the meetings by stating:
You know why we're here. There was more than
50 percent of the people in the company that signed
cards stating that they were concerned and were in-
terested in union representation. We are coming
around because of that percentage of the cards.
The discussion would then turn to various topics, includ-
ing the new pay structure as contrasted with the possible
income under union contracts. 6 Schaeffer arqued:
With a union salary, you know that you would
have the union fees, dues every month, that you
would have to pay and you can't guarantee exactly
what salary the union will give you because you
have to fit into a certain structure level, depending
on your knowledge of the vehicle.
Schaeffer speculated that, if a union were selected as
their representative, they would probably demand a
wage increase over the recently increased wage sched-
ule. Such an increase might result in an increase in the
price of tuneups. Since this is a highly competitive indus-
try the increased price might result in a decrease in busi-
ness as customers search for cheaper work. Three of the
centers were already floundering and further decrease in
business might force Respondent to close one or two
centers. Schaeffer denies that he said any store would
definitely close if a union won the election.
In reviewing the employee benefits, he also pointed
out if the Company was faced with additional cost they
might lose shop privileges. They might not have the use
of the facilities or be able to purchase parts at company
cost.
Schaeffer insisted that his predictions were never
stated as threats and were couched in terms such as "per-
haps," "might," "may," "probably," or "possibly." Sev-
eral witnesses agreed that neither Carlson nor Schaeffer
spoke in absolute terms.
7. Election
The election was held at the Page facility on April 13.
When Brier arrived he attempted to talk to Schaeffer
e The employees had been informed of Respondent's new policy con-
cerning free uniforms and pay structure approximately a week before
these meetings.
-
MARK I TUNE-UP CENTERS, INC. 903
concerning his discharge and medical reports. Protte and
Spiess were present during part of the conversation.
Schaeffer claims Brier opened the conversation by
stating, "Hi, Don, I am here to vote yes." They then
briefly reviewed his voting eligibility. As the conversa-
tion turned to the election, Schaeffer became very vocif-
erous and excited. Brier described his statements as irra-
tional. During his testimony, Schaeffer readily and can-
didly admitted he was quite upset and had responded
"that I was not a union man, not a fan of the unions."
He related the basis for his antiunion sentiment. In
1976, he and eight other men were helping his father
who was a sales manager for a trucking company. Late
in the evening approximately 12 men surrounded their
shop. The intruders beat and knocked one employee off
a truck and then pulled guns and threatened their lives,
including his mother and father. The men who were ar-
rested for the assault were members of the Teamsters
Union Local 618.
After Schaeffer completed relating this experience
Brier replied, "Well, you were probably doing something
wrong and they were probably putting you in the right
frame of mind." Since his parents' lives had been threat-
ened Schaeffer was particularly incensed by Brier's re-
marks. At this point, Protte had cast his ballot and told
Schaeffer it would be good for the Company if the
Union got in because the Union would be able to take
care of personnel a lot better. Schaeffer responded:
If the union comes in things could really change.
I would not be the nice guy that I have tried to be
in the past, helping the mechanics out. I could be
extremely stern and tough and go completely by the
books and rules. When people screw up I could
really throw the books at them.
Both Protte and Brier also stated that Schaeffer threat-
ened that their shop privileges would be rescinded if a
union gained power.
8. Protte's discharge
David Protte was employed by Respondent on two
occasions. His initial employment began in September
1975 when he was hired by Manager Jeff Harris to work
as a mechanic at the Page facility. In the 3 years that fol-
lowed he was transferred to South County, then back to
Page, and finally to North County. In March 1978, he
left that employment to work for the Missouri AAA's
Diagnostic Clinic, where he was a member of the Team-
sters Union, Local 618.
The first period of employment was interrupted in
July 1977, when he was discharged by Schaeffer, the
South County manager. Prior to the discharge he asked
a few of his fellow employees if they were interested in
joining a union for collective bargaining. Protte testified
that Schaeffer told him they did not want a union shop
at Mark I Tune-Up Centers. Since his attitude had dete-
riorated and he had become active in seeking a union he
was discharged. When he asked for his job back, Lowry
said, "I heard you were asking about union representa-
tion. I've heard you were talking about walkouts and
strikes and we don't need that kind of troublemaking
around here." After Protte assured him he would change
his attitude he was rehired for the Page store.
Schaeffer denied that Protte was discharged for union
activity. In fact, he claims he was unaware of any union
activity on Protte's part in July 1977. The discharge at
that time was based solely on his attitude. Although his
work was good he would constantly make disparaging
remarks toward Schaeffer and he was impossible to
manage or control. It was only after Protte assured
Lowry that his general work attitude would improve
that he was taken back. Lowry and Schaeffer both deny
that either this discharge or rehiring had anything to do
with union activity.
After II months with AAA, Protte was discharged
and he again turned to Respondent for a job in the early
part of February. Lowry testified that he was extremely
reluctant to rehire him because of the past experiences
with him. He was very independent and refused to
follow work rules. It was only after strong assurances by
Protte that he had matured, was getting married and
wanted another chance, that he was considered for the
job. At this meeting Lowry explained that they anticipat-
ed that a mechanic would leave the Page Center and
therefore he could work there as his replacement. Later
he learned that Spiess was the individual who was ex-
pected to leave. Lowry testified that the anticipated va-
cancy was the planned departure of Spiess, whom
Schaeffer wanted to discharge for unsatisfactory work
performance. All agree that, when Protte was hired,
management felt it was for a permanent position. How-
ever, near the end of February a decision was made not
to discharge Spiess and thus Protte was no longer
needed as his replacement. Although the Company de-
cided against immediate discharge, it felt discharge was
inevitable but held off on the decision for fear that such
action would be tied to the union organization attempts
and the election.
No one informed Protte that there was no longer an
opening at the Page store. Schaeffer did approach him a
week after he started and asked him if he would like to
transfer to the Ferguson store to fill in for a vacationing
mechanic. Schaeffer told him, "I don't know how long
you would be up there. It might be a month or more. I
wouldn't mind having you back." Protte then agreed to
the transfer. There was no indication that he was sched-
uled for a discharge; on the contrary he was led to be-
lieve that the manager was pleased with his work and
that he would return to the Page facility. Later when he
started working at the North County store, the manager,
Gary Lane, told him he was permanently assigned to the
North County store and would not return to Page.
On March 5, Lowry called the Ferguson store and
Protte answered the phone. According to Lowry's testi-
mony the following conversation took place:
LOWRY: Have you heard about the meeting to-
morrow evening?
PRorFE: What meeting?
LOWRY: The union meeting.
PROTTrE: Oh, yeah.
LOWRY: Are you going?
PRortT: Yes, I was planning to go.
MARK TUNE-UP CENTERS. INC 3
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LOWRY: How come?
PRoTrE: I just want to hear what they have to
say.
LOWRY: Well, after you go if you've got any
questions, I would be glad to talk to you.
Lowry was surprised by his responses because he claims
Protte had previously told him he did not like working
for the Union at AAA.
Protte's testimony is in conflict with Lowry in two
basic areas. He claims at the end of their conversation he
suggested if he had any questions after the meeting he
could feel free to call Lowry. The second basic conflict
is in the omission of several statements attributed to
Lowry. Protte's recollection of the conversation includ-
ed the following:
LOWRY: I'd rather you didn't go.
PROTTE: Well, Gary, I hold a withdrawal card
from Teamsters Local 618. I'm a member in good
standing with the union and I'd rather keep it that
way.
LOWRY: Well, we cannot afford a union. I'd
rather you still didn't go.
On Tuesday, March 20, Gary Lane approached Protte
at 2 p.m. and told him he was laid off due to lack of
work.
Respondent placed an ad in the employment section of
the Sunday St. Louis Post Dispatch on April 22 for a
mechanic at their South County store.7 On the following
day, Protte called Lowry and asked him if he had been
laid off or terminated. For the first time he was told that
he had been terminated and that he had been hired only
as an extra man. Protte then confronted him with the ad
and asked for the job. Lowry repeated he was terminat-
ed because of certain problems and they were not hiring
even though they had run an ad for a mechanic's posi-
tion.
MARK I
TUNE-UP CENTERS, INC.
Equal Opportunity Employer
9. Spiess' discharge
Robert Spiess was employed as a mechanic from
March 1978 until either June or July 1978, when he was
promoted to the position of second-shift supervisor
(night supervisor). According to Lowry his new duties
7 The ad read:
AUTO MECHANIC
We are a young, dynamic company with a reputation for excellence
in the tune-up field. The company's growth has created openings at
our Concord Village Center for Mechanic with neat appearance, am-
bition, experience or school training and their own tools. Familiarity
with scope and infra-red equipment is preferred. We offer good
wages and benefits pleasant working environment and a career path
into management. If you're tired of working at a service station or
general repair garage and want to concentrate your skills on engine
diagnosis and tune-up, come and talk to us on Tuesday, April 24, be-
tween 8:30 & 12:00 at our Corporate Office. 8502 Manchester Rd in
Brentwood.
included all "that the manager would have, supervised
the schedule there in the evening, assign the cars as they
came in, handle any customer problems that came up, su-
pervise the employees under him, send people home
early if there was no work, make sure the deposit was
done right by the receptionist and it go in the bank."
Spiess did not agree with these observations. He did not
have authority to hire, fire, discipline, grant time off,
evaluate employees, set work schedules, promote, or
give raises. The authority remained with the manager.
Although as a supervisor he expected to receive a raise,
his income remained at $3.50 per hour until he received
an automatic 6-month raise to $4.16. Finally, after he had
been a supervisor 4 or 5 months, his hourly wage was
increased to $4.50. When the bonus plan was discontin-
ued in the latter part of March, all employees received a
raise. Schaeffer informed him that: "Everyone was get-
ting a raise so yours will be $5.91 an hour and the reason
is that Gary realizes he has been making mistakes."
Although Spiess was promoted to night supervisor,
Schaeffer claimed he was a poor employee, due to his
general attitude. His mechanical skills were outstanding;
however, his work habits were very poor. On numerous
occasions he was late, his personality resulted in conflict
with customers and fellow employees. Schaeffer testified
that he decided to discharge him prior to February 22,
but decided to delay the termination to avoid any ap-
pearance that the termination was in any way connected
to union activity. In the interim, Spiess continued to
cause problems. However, on March 9, Scheaffer gave
him an unscheduled bonus of $30, which was allegedly
for additional and difficult mechanical work that he had
performed. Spiess testified he did not know why he re-
ceived the $30 and denied that his quality or quantity of
work changed in such a way as to justify this bonus. On
March 20, he failed to come to work with an excuse that
he was ill when, in fact, he was not. He denied
Schaeffer's allegation that he spoke disparaging words
toward black customers. On April 23, he was discharged
and handed a document which purported to list his
shortcomings:
1. Took off a day and wasn't sick on a Tuesday
in early April.
2. Shunned supervisory position on vote day, but
still signed time cards and handled other supervi-
sory situations.
3. Late for work-7 times in last 3 weeks, 3 times
last week alone
4. Doesn't want to fit into overall of shops
scheme of things.
5. Bad attitude, negative attitude, down grades
shop situations rapidly, chip on shoulder.
6. Cut down customers, especially blacks.
7. Been given chances to change in past.
Spiess admitted having one argument with a customer
who refused to pay, but he denies ever insulting a black
customer.
MARK I TUNE-UP CENTERS, INC. 905
10. Hanner's incident
On March 1, Brier gave Hanner a Teamsters authori-
zation card which he signed. Since Hanner was having
mechanical trouble with his car they agreed to drive to-
gether to the March 7 meeting. On the evening of March
6, Hanner told him he had changed his mind and he no
longer intended to attend the meeting or support the
Union. Brier claims that Hanner explained he was experi-
encing financial problems and Lowry agreed to arrange
for a loan for him if he would stay away from the union
meeting and vote against the Union. Hanner warned him
if he repeated his comments he would deny them.
A few days later, Protte told Hanner that Local 618
had a credit union which would lend him money if he
were in financial trouble. He said he would consider that
offer as a possibility but it was too early to determine the
extent of his financial needs. He concluded the conversa-
tion by stating, "If it gets bad enough that I'm going to
lose my kid, I'll do anything to keep from losing my
kid."
At the hearing, Hanner verified the two conversations;
however, he denied that he ever told Brier that Lowry
offered him a loan. This particular period of his life was
very stressful and difficult since he was in midst of a di-
vorce. It was unclear what the litigation would cost him
but he knew his debts were rapidly increasing. Although
he did not receive a loan from Lowry or from Respond-
ent, he did sell his stock back to the Company for ap-
proximately $1,100.
On cross-examination, Hanner stated that on numerous
occasions Lowry had asked him questions concerning
the union drive. Lowry wanted to know who was
behind the organizational campaign and "they would
handle the rest." He told him that he thought Brier and
Protte were doing the footwork.
The Union offered him very little since he had senior-
ity and was the top paid mechanic. In addition, he ex-
pressed a fear that if he actively supported the Union he
could lose his job. This possibility was totally unaccepta-
ble to him since he did not wish to risk even the possibil-
ity of losing his son, through some financial misfortune.
Although he signed an authorization card he was not in
favor of the Union. He explained he felt signing the card
simply provided the Union with an opportunity to ex-
plain what it could do for the men.
B. Analysis
1. Interrogations
The fact that a telephone conversation occurred be-
tween Lowry and Protte on March 5 or 6 is not in dis-
pute. The General Counsel argues that Lowry's state-
ments and questions during that conversation were of a
coercive nature and therefore were an unfair labor prac-
tice prohibited by Section 8(a)(1) of the Act.8
Protte related that when he answered the telephone
Lowry said, "I heard you had a union meeting going. I'd
rather you didn't go." After Protte explained that he had
a withdrawal card from Teamsters Local 618 and that he
wanted to maintain his good standing with the Union,
I credit Protte and not Lowrry concerning their conversation
Lowry commented, "Well, we cannot afford a union."
The conversation ended when Protte explained: "Well,
I'm going to go and hear what they have to say, make
my own decisions and I guess if I have any questions, I
can feel free to call you." Lowry acknowledged, "Yes,
that's right."
Respondent is careful to point out that Lowry called
the Ferguson Center to talk to Gary Lane, the manager,
when Protte picked up the receiver. In a rather casual
manner he asked if he had heard about the meeting
which was scheduled for the following evening. Initially,
Protte responded, "What meeting?" Lowry answered,
"The union meeting . . . are you going?" When he re-
ceived an affirmative answer Lowry testified he was sur-
prised because, when Protte had left AAA and returned
to Respondent, he had said he did not like working for a
union. Lowry then asked to speak to Gary Lane after he
stated, "Well, after you go if you've got any questions I
would be glad to talk to you."
Whether this conversation should be considered coer-
cive depends in large part on the credibility of the var-
ious witnesses. With regard to the disputed portions of
the testimony, I do not credit Lowry's version of the
facts, since it appears to have been designed to strength-
en Respondent's defense and to delete or minimize those
comments which are clearly coercive.
The General Counsel argues that this brief conversa-
tion represented coercive interrogation. The first analysis
of Lowry's questions leads one to believe they were iso-
lated, innocent, and spontaneous inquiries. After all, the
phone call was directed to Lane and it was only by mere
chance that Protte answered the call. However, in order
to evaluate fully an interrogation's tendency to coerce, it
is necessary to examine all of the surrounding circum-
stances. Actual coercion is not necessary but, rather, the
true test is whether the questioning tends to be coercive.
Cagles's, Inc. v. NL.R.B., 588 F.2d 943 (5th Cir. 1979),
enfg. 234 NLRB 1148 (1978); Sturgis Newport Business
Forms, Inc. v. NL.R.B., 563 F.2d 1252 (5th Cir. 1977).
The Board has held that, where the interrogation is iso-
lated and occurs in an atmosphere free of coercive con-
duct, the questioning is not per se unlawful. Alley Con-
struction Co., Inc., 210 NLRB 999 (1974). Certainly, in
the present case the questions appear to be spontaneous
and harmless, until all of the surrounding facts are con-
sidered. Protte's past experience provided him with a
clear understanding as to Lowry's and Schaeffer's dislike
for unions. Prior to July 1977, Protte had asked some of
his fellow employees if they were interested in joining a
union for the purpose of collective bargaining. Shortly
thereafter, Schaeffer discharged him and told him they
did not want a union shop at Mark I Tune-Up.9 A week
later, Protte asked Lowry for his job back and he said,
"I heard you were talking about union representation.
I've heard you were talking about walkouts and strikes
and we don't need that kind of troublemaking around
here." It was not until Protte assured management that
his "attitude" had changed that he was rehired. Under
these circumstances it is easy to understand why Protte
I do not credit Schaeffer's testimony regarding Protte's discharge in
July 1977
MARK TUNE-UP CENTERS, INC.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assured Lowry that he did not like working for AAA
because it was a union shop. Lowry admitted he hesitat-
ed to rehire him after he left AAA because he had been
very "independent." Obviously, the key to reemploy-
ment for Protte was the simple utterance of antiunion
sentiment.
It is interesting to note that Protte's immediate answer
to Lowry's inquiry concerning the "meeting tomorrow
evening" was "What meeting?" It is clear from the testi-
mony that Protte signed a union authorization card on
March 1 and was well aware that a union meeting was
scheduled for March 7. Why then did he initially act as
though he lacked knowledge of the pending union meet-
ing? Again his past experience forewarned him of
Lowry's union animosity and the importance of avoiding
even the appearance of being a union activist. He had
every reason to believe that Respondent wanted to
remain nonunion. Lowry did not reveal the purpose of
his questions and there is no basis for inferring that
Protte could have perceived a legitimate basis for the
questions. San Lorenzo Lumber Company, 238 NLRB
1421 (1978). Further, there were no assurances that the
employee's response would not lead to a reprisal.
N.L.R.B. v. Super Toys, Inc., 458 F.2d 180, 183 (9th Cir.
1972). Generally, any interrogation by the employer re-
lating to union activities contains the potential danger of
coercing the employees. Texas Industries, Inc. v.
N.L.R.B., 336 F.2d 128, 133 (5th Cir. 1964). Obviously,
company questions regarding union sympathy, affili-
ations, organization, or activity have a natural tendency
to instill fear of discrimination in the minds of employ-
ees. This can be true even when the questions are not ut-
tered in the context of threats or promises. Paceco, a Di-
vision of Fruehauf Corporation, 237 NLRB 399 (1978).
Clearly, Lowry's question was perceived by Protte as
fraught with the danger of coercion. The fact that he
acted as though he did not know what meeting only em-
phasizes his natural fear concerning such inquiries.
N.L.R.B. v. Cement Transport, Inc., 490 F.2d 1024, 1028
(6th Cir. 1974).
Therefore, I find that Respondent's interrogations
through Lowry were coercive and constituted unfair
labor practices in violation of Section 8(a)(l) of the Act.
2. Threats
During his testimony, Schaeffer related a personal ex-
perience with members of Teamsters Local 618 in 1976.
He was assisting his father who was a sales manager for
a trucking company when 12 men surrounded the shop.
They proceeded to threaten them with guns and actually
beat up one man and threw him from a truck. The lives
of his mother and father were threatened. Schaeffer can-
didly admitted that based on this personal experience he
was neither a fan nor a union man. He volunteered to
speak to the employees to provide them with manage-
ment's views.
There is little disagreement as to the substantive issues
raised by Schaeffer. Some heard his remarks as dogmatic
predictions of the future, while others noted each predic-
tion was couched in terms of "perhaps or maybe." In
general, Schaeffer argued at the preelection meetings and
on the day of the election that if a union were selected as
their union representative they may face the following
problems: (I) closure of Respondent's facilities; (2) loss
of the use of the Company's facilities to repair their own
cars and the privilege of buying parts at cost; and (3) im-
position of more onerous working conditions.
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575,
617-620 (1969), the Supreme Court drew the line be-
tween permissible predictions and unlawful threats as fol-
lows:
. . .an employer is free to communicate to his em-
ployees any of his general views about unionism or
any of his specific views about a particular union,
so long as the communications do not contain a
"threat of reprisal or force or promise of benefit."
He may even make a prediction as to the precise
effect he believes unionization will have on his com-
pany. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably
probable consequences beyond his control or to
convey a management decision already arrived at to
close the plant in a case of unionization. .... If
there is any implication that an employer may or
may not take action solely on his own initiative for
reasons unrelated to economic necessities and
known only to him, the statement is no longer rea-
sonable prediction based on available facts but a
threat of retaliation based on misrepresentation and
coercion, and as such without the protection of the
First Amendment. We therefore agree with the
court below that "[c]onveyance of the employer's
belief, even though sincere, that unionization will or
may result in closing of the plant is not a statement
of fact unless, which is most improbable, the even-
tuality of closing is capable of proof." 397 F.2d 157,
160.
Clearly, Respondent has the right to present its views
concerning the Union and the pending election. The
question is whether those views are presented in such a
manner as to threaten reprisals or to promise benefits. In
the present case the credible evidence reveals that union
animus on the part of Lowry and Schaeffer was consid-
erable. The employees were aware of Respondent's gen-
eral animosity toward unions. The fact that Schaeffer
carefully couched his predictions in terms of "maybe and
perhaps" does not lessen the threatening qualities of his
statements. Other than casual reference to the fact that
increased wages might result in higher charges and fewer
customers, Respondent failed to show such dire predic-
tions were based on objective facts which would demon-
strate probable consequences beyond its control.
Schaeffer's predictions were illegal threats. He was not
provided with any actual accounting by Respondent
which would substantiate his predictions. Indeed, he was
not even aware that the board of directors had decided
to close one of the facilities. His predictions were in the
abstract and lacked the weight of actual facts and figures
needed to project the success or failure of any business
venture. Undoubtedly Schaeffer was sincere; however,
his predictions were focused more on his personal an-
MARK I TUNE-UP CENTERS, INC 907
tiunion emotions than on the cold hard facts required of
business realities.
The Board has frequently found that a threat of clo-
sure is a violation of Section 8(a)(1) of the Act. Fry
Foods, Inc., 241 NLRB 76 (1979); Gilliam Candy Co.,
Inc., 239 NLRB 991 (1979). Schaeffer repeatedly asserted
that the presence of a union might result in the closure
of a store. His admonition that they might no longer be
able to purchase parts at cost or use the Respondent's
utilities, tools, and facilities is also a violation of the Act.
N.L.R.B. v. Jamaica Towing, Inc., 602 F.2d 1100 (2d Cir.
1979), enfg. 236 NLRB 1700 (1978); St. Vincent's Hospi-
tal, 244 NLRB 84 (1979). Schaeffer's comment that he
can be strict and tough and that the company rules might
be enforced more strictly is a threat to change to more
onerous working conditions in violation of the Act.
Robert E. Anderson and Richard E. Anderson, Co-Partners
d/b/a Anderson Cabinets, 241 NLRB 513 (1979).
3. Benefits
The General Counsel argues that Respondent illegally
provided three economic benefits to induce the employ-
ees to vote against the Union. These benefits consisted of
an unscheduled $30 bonus given to Spiess, conversion of
the past bonus and wage plan to a straight hourly wage,
and agreement for Respondent to pay for the required
uniforms. In N.L.R.B. v. Exchange Parts Co., 375 U.S.
405, 409 (1964), the Supreme Court held:
The broad purpose of §8(a)(l) is to establish "the
right of employees to organize for mutual aid with-
out employer interference." Republic Aviation Corp.
v. Labor Board, 324 U.S. 793, 798. We have no
doubt that it prohibits not only intrusive threats and
promises but also conduct immediately favorable to
employees which is undertaken with the express
purpose of impinging upon their freedom of choice
for or against unionization and is reasonably calcu-
lated to have that effect.
Such intrusions can undermine the Union's majority sup-
port and thus interfere with the lawful collective-bar-
gaining rights which are protected by Section 7 of the
Act. Jefferson National Bank, 240 NLRB 1057 (1979);
East Belden Corporation, 239 NLRB 776 (1978). There-
fore, the question which must be answered whenever
benefits are given prior to an election is simply: What
were the motivations guiding the employer's actions?
The Board has long held that granting of benefits
during an election campaign is not per se unlawful where
the employer can show that its actions were governed by
factors other than the pending election. American Sunroof
Corporation, et al., 248 NLRB 748 (1980); Centralia Fire-
side Health, Inc. d/b/a The Fireside House of Centralia,
233 NLRB 139 (1977). This burden can be met by the
employer by showing that the benefits which were
granted were part of an already established company
policy and the employer did not deviate from that policy
upon the advent of the union. Pan American Optical
Company. Inc., 211 NLRB 50 (1974). In The May Depart-
ment Stores Company, d/b/a Famous-Barr Company, 174
NLRB 770 (1969), the Board held that an employer who
was confronted by a union campaign should decide
whether to grant or withhold benefits as if the union
were not in the picture.
The fact that Respondent's board of directors ad-
dressed itself to the revision of the then-existing bonus
and wage plan prior to the beginning of union activity is
undisputed. The initial union meeting was held on Febru-
ary 27 and Respondent was notified on March 6 that the
Teamsters Union had signed union authorization cards
from a majority of their employees. On January 30, the
directors met at the regularly scheduled meeting. At that
meeting, Lowry explained that he had received com-
plaints from both managers and regular employees that
the bonus wage policy was unfair. The directors instruct-
ed him to meet with the employees and ask them for
their views and suggestions. On the following day he no-
tified the employees that a meeting was scheduled for all
employees except managers, on February 14. At the
meeting the men expressed displeasure not only with the
wage and bonus policy but also with the uniform policy.
They felt that since Respondent required uniforms they
should pay for them. Al Miller, a member of the board
of directors, was present along with Lowry. They ex-
plained that they could not make firm commitments be-
cause the Company's resources were limited. However,
they assured the men that the subject would be discussed
at the next board of directors meeting. Lowry reported
to the directors at the next regularly scheduled meeting
on March 21. The board voted to revise the pay sched-
ule by eliminating the bonus and by increasing the
hourly wage.
The increase in the hourly wage was intended to equal
roughly the average bonus received by each employee
during the previous 12 months, plus his former hourly
wage. The revision resulted in an increase for some and
a decrease for others. There was no evidence offered
which would indicate that the increases or decreases
were connected in any manner to the individual employ-
ee's union activity. For example, Hanner had expressed
antiunion sentiment and his new wage was less than his
former income under the old bonus and wage policy,
while Daugherty had supported the Union and his
income was greater than his former income based on the
old bonus and wage policy. Lowry explained that under
the new plan a few employees would have received dis-
proportionately high hourly wages. In an effort to have
greater uniformity the excessively high wages were low-
ered to conform with the general pay schedule; e.g.,
Hanner. The directors also voted to pay for all uniforms;
it was believed that this would offset any loss an employ-
ee might sustain under the new system.
It is questionable whether the revised pay schedule
can be classified as an increase in benefits. Certainly, the
intent was to convert the old bonus wage system to a
straight hourly wage. The new wage reflected the aver-
age old bonus plus the old hourly wage. Presumably,
under such a conversion the employee would receive
about the same annual income. Under such a revision
and increase it is questionable that the revision would
have the effect "of impinging upon their freedom of
MARK ~~ . TU.U C.TE S .N .. 0
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choice for or against unionization." N.L.R.B. v. Ex-
change Parts Co., supra.
Even if this revision is properly classified as a wage in-
crease, the preponderance of credible evidence indicated
that it was not given in violation of Section 8(a)(l). It is
an undisputed fact that the board of directors proceeded
in an orderly fashion to revise the hourly wage before
they were aware of the union activity. The ultimate revi-
sion was part of an already established policy which was
not affected by the advent of the Union. In sum, it is
clear that Respondent granted the wage revision and
agreed to pay for the uniforms for reasons unrelated to
the union activity and it lawfully announced those
changes in the normal course of business. Therefore, I
find that Respondent did not violate Section 8(a)(l) in
respect to the wage revision and the agreement to pay
for the uniforms.
The remaining "benefit" question to be resolved is
whether the undisputed $30 check given to Spiess by
Schaeffer represented a bonus for some additional and/or
difficult work. Spiess testified he was puzzled by the
check since he felt his work had not changed in either
quantity or quality. It is interesting to note that the $30
was given in the same general time period when
Schaeffer asserted he was considering discharging Spiess
for his poor attitude. The bonus was not only unsched-
uled but also was unprecedented. The fact can only lead
to the conclusion that management was attempting to in-
fluence Spiess' vote in the coming election. I find this
$30 bonus was given in violation of Section 8(a)(l).
4. Loan to Hanner
Although Hanner may have told Brier that Lowry of-
fered him a loan or assistance in obtaining a loan there is
a lack of sufficient evidence to substantiate this allega-
tion. Indeed, the principals to this alleged loan, Hanner
and Lowry, both convincingly deny that they ever, even
in the slightest degree, discussed a possible loan. The
General Counsel argues that, even if the evidence fails to
prove he obtained a loan, a violation of Section 8(a)(1)
must be found based on an offering of a monetary incen-
tive in return for his forgoing any union activity. This
monetary incentive is based on the fact that, in March,
Hanner received the largest bonus of any employee
and/or the fact that Respondent purchased 2,300 shares
of its stock from Hanner.
The General Counsel bases his monetary incentive ar-
gument on the fact that Hanner testified that he received
about $400 in March and he felt this was the largest
bonus paid to any employee. There was no foundation
presented which would indicate that Hanner had any
direct knowledge as to who received the largest bonus.
He freely admitted he did not know many of the em-
ployees at the various stores. He even guessed at the
amount of his bonus. The undisputed fact was the
method used by Respondent to determine a bonus. All
employees received a bonus calculated by the same for-
mula which reflected the amount of parts that each em-
ployee sold. There was absolutely no evidence offered
that would prove that Hanner's bonus was determined
by any method which would reflect a "pay-off" or fa-
voritism.
It is true that the March 21 minutes of the board of
directors reflect that the following motion was made and
approved:
. . . that the Company make a tender offer to pur-
chase up to 1,000 shares of the Company's common
stock from any existing shareholder at a price of 50
cents per share. There are 18 shareholders owning
less than 1,000 shares each, for a total of 6,971
shares. This offer is an attempt to reduce the
number of smaller shareholders.
I fail to see such great significance in the fact that the
Company purchased 2,300 shares instead of 1,000 shares.
The motion was an attempt to reduce the number of
small shareholders. The price offer was 50 cents per
share. Hanner was not given a larger amount per share
which would reflect disparate treatment.
After reviewing the evidence and considering the
General Counsel's arguments, I have concluded that
there is a lack of convincing evidence which would
allow one to draw the inference that Respondent violat-
ed Section 8(a)(l) of the Act by: (I) arranging for a loan;
(2) providing a loan; (3) purchasing 2,300 shares; and/or
(4) paying a bonus to Hanner in March.
Therefore, I shall find and recommend that the
charges contained in paragraph 5(c) of the complaint be
dismissed for a lack of conclusive and sufficient evidence
to substantiate the charge.
Hanner's testimony does raise an unanswered question.
Why did his attitude toward the Union change so dra-
matically between March 1, when he signed the Team-
sters Union authorization card, and March 6, when he in-
formed Brier he would not support the Union or attend
its March 7 meeting? I do not credit Hanner's assertion
that he never favored the Union and that he signed the
card only to allow the Union an opportunity to present
its views to the employees as to what it had to offer. If
this were true, why did he not attend the meeting to
hear the Union's presentation? On cross-examination, he
admitted reading the authorization card before he signed
it. The General Counsel is correct when he argued that
some event occurred which was responsible for Hanner's
decision not to attend the union meeting.
Why did Hanner change his support for the Union?
The answer was clearly provided in his testimony. Un-
fortunately, he was in the midst of a divorce and feared
the loss of his son. He stated, "I was going to do nothing
that was going to cause me to lose my job because if that
were the case I would certainly lose my only son and
that was my concern." On cross-examination he was
asked and answered as follows:
Q. During your testimony you expressed some
concern about your job had you supported the
union. Did you feel that way?
A. Yes, I was concerned about my job in a lot of
ways. I have got time with the company.
Perhaps once or twice a week, Lowry quizzed Hanner
concerning union activity. During these discussions
Lowry wanted to know "who was doing it, who was in-
MARK I TUNE-UP CENTERS, INC. 909
volved, who was doing the foot work and I [Hanner]
was expressly told, from there that they would handle
the rest. They were just concerned with who they were
dealing with." In answer to these inquiries he informed
management that both Brier and Protte were involved.
Lowry's interrogation had the desired effect of coerc-
ing Hanner to withdraw his support and cease all union
activities, as well as maintaining surveillance on the
union activities of others.
Although there is insufficient evidence to support the
proposition that Hanner received a loan from Respond-
ent, there is ample proof that he was coerced into main-
taining surveillance and informing on the union activities
of his fellow employees. Such coercion is a clear viola-
tion of Section 8(a)(1) of the Act. The General Counsel
did not amend the complaint to include these charges,
but they were fully litigated. Lowry testified after
Hanner had an opportunity to deny interrogating and
using Hanner for surveillance. He not only did not deny
the statements but he also admitted that some of his
knowledge of union activity came from Hanner.
In Alexander Dawson, Inc. d/b/a Alexander's Restau-
rant, 228 NLRB 165 (1977), the complaint did not spe-
cifically allege surveillance as a violation of the Act and
it was not amended to allege such violations, but the
Board found an 8(a)(l) violation since the allegation was
sufficiently related to the subject matter of the complaint
to warrant specific finding of a violation and the facts
were fully litigated at the hearing, and the employer had
the opportunity to offer evidence on the point. After
considering all the surrounding circumstances, I find that
Lowry's interrogation of Hanner and his using him for
surveillance were coercive and produced an atmosphere
which interfered with the employee's union activities in
violation of Section 8(a)(1).
5. Discharge of employees
During Lowry's interrogation of Hanner, he assured
him that all he wanted to know was who was doing the
footwork and leading the union organization. When
Hanner named Brier and Protte as two of the union ac-
tivists, Lowry expressly told him that "they would
handle the rest." Indeed, in a short time, this prophecy
became reality:
ty to observe the company sick leave policy in action.
The policy simply required that the individual should
keep the Company informed as to the status of the illness
or injury. A written medical report was required if the
problem was of an extended duration. Apparently even
this rather informal policy was enforced in a lax manner.
He related the case of Richard Twardawski who had in-
jured his back in 1978. Several times Twardawski's
doctor released him to return to work; however, each
time he would report several days late. He was not dis-
charged until the second or third failure to report.
Respondent argued that they relied on Dr. Barrale's
medical reports to determine when they could expect
Brier to return to work. The letter of February 28,
stated, in part:
At this time Mr. Brier should be able to return to
work on approximately March 19, 1979. We will
confirm this return date after Mr. Brier has been
treated for approximately two more weeks.
If you have any questions about the patient's con-
dition, please feel free to call.
Lowry denied receiving Dr. Barrale's letters of March
16 and 27, which extend Brier's sick leave to April 2 and
16, respectively. Brier testified in a clear and convincing
manner. I credit his assertions that he personally mailed
the letters of March 16 and 27 to Lowry in Dr. Barrale's
envelopes by depositing them in the mailbox at St. Ann
Post Office, with the proper address. When he was told
that they had not been received he requested the post
office to search for the letters. He also checked with his
doctor's office to see if they had been returned there.
The search was futile.
As a general proposition, proof of mailing of a letter
properly addressed and stamped raises a rebuttable pre-
sumption that it was received. Ahonen Lumber Company,
77 NLRB 706 (1948); Legille v. Dann, 544 F.2d 1 (D.C.
Cir. 1976). Should a party present evidence tending to
show nonreceipt, a question is presented for the trier of
fact. Columbia Finance Company v. Worthy, 141 A.2d 185
(App. 1958). In Thiele Tanning Company, 128 NLRB 19,
fn. 3 (1960), the Board concluded that a general denial
does not overcome the presumption. In the present case
I have credited Brier's testimony and I find that all of
the letters were received by Respondent.
Respondent never argued that Brier's work was inad-
equate. The discharge was allegedly based solely on the
fact that he did not return to work on March 19. Even if
one assumes that Lowry did not receive the letters of
March 16 and 27 the discharge remains very suspect.
Brier had a good work record for 5-1/2 years. He fol-
lowed the procedure for sick leave by forwarding medi-
cal reports. By his own admission Lowry had received
the medical reports of January 12 and February 6, 17,
and 28. The letters invited inquiries as to his medical
condition. A pattern had been set by Dr. Barrale of pro-
viding an approximate return-to-work date, with the ad-
ditional comment: "We will confirm this return date
after Mr. Brier has been treated for approximately two
more weeks." Lowry made no effort to contact Dr. Bar-
rale's office or Brier to find out why he failed to report
George Brier
discharged
David Protte
discharged
Robert Spiess
discharged
March 26, 1979
April 23, 1979
April 23, 1979
Lowry did "handle the rest" by discharging the three
most active unionists among his employees. I find the
various justifications by Respondent to be pretextual and
the three discharges in violation of Section 8(a)(1) and
(3) of the Act.
a. George Brier
During his 5-1/2 years of employment for Respondent,
Brier worked both as a mechanic and a store manager.
While in the capacity of a manager he had an opportuni-
MARK I TUNE-UP C NTERS. INC~~~~~~~~~~~~~~~~~~~~~~.9
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work. If the only reason for discharging Brier was his
failure to appear on March 19 then the entire matter
should have been clarified when Lowry received Dr.
Barrale's letter of April 11. Since Lowry did not rein-
state him to sick leave status after the receipt of the
April 11 letter, an additional reason for the discharge
must exist. The only other possible reason for the dis-
charge is that Respondent demonstrated conduct of
union animus. Hanner had specifically informed Lowry
that Brier was a union activist. At that point his job was
in jeopardy. Respondent's stated reason for discharge
was clearly pretextual. I find that George Brier was dis-
charged for his union activities in violation of Section
8(a)(1) and (3) of the Act.
b. David Prolle
Respondent argues the sole reason for Protte's dis-
charge was based on the fact that he was originally hired
to take Spiess' job, who was scheduled to be terminated.
When management decided to retain Spiess there was no
further need for Protte's services. The total evidence
does not substantiate these contentions.
Respondent had earlier terminated Protte for his union
activities in July 1977. At that time he had asked his
fellow employees if they were interested in joining a
union. Schaeffer told him they did not want a union shop
at Mark I Tune-Up Center. A week later when he asked
for his job Lowry said, "I heard you were talking about
union representation. I've heard you were talking about
walkouts and strikes and we don't need that kind of
troublemaking around here." Protte was rehired only
after he assured him his attitude had changed.
Later Lowry was faced with the problem of rehiring
Protte after he left AAA. Lowry testified that he hesitat-
ed to take him back because of his past independence.
Again Protte was rehired after he assured him that he
had matured and was happy to leave his last job because
it was a union shop. On March 5, Lowry spoke to Protte
on the telephone. At that time Lowry asked him about
the upcoming union meeting. I have credited Protte's
recollection of this conversation. Lowry told him he did
not want him to attend the meeting. At approximately
the same time Hanner told Lowry that Protte was one of
the union organizers.
Respondent's argument is weakened by several events.
If Protte were hired to fill Spiess' position why was he
not retained when Spiess was fired on April 23? Protte
was considered an excellent mechanic. If he were not re-
tained in the Spiess position why was he not hired for
the vacancy at the Concord Village Center? Respondent
had advertised on April 22 that such a position was
available. ° Lowry's contention that Respondent placed
the ad to build up a reserve of potential employees and
not to hire a mechanic immediately is difficult to believe.
I find that Protte was laid off on March 20, and ille-
gally discharged on April 23. The reasons provided by
Respondent are pretextual. The sole reason for Protte's
discharge was based on his union and other concerted
activities, in violation of Section 8(a)(1) and (3) of the
Act.
'O See fn. 7.
c. Robert Spiess
Respondent contends that they encountered problems
with Spiess prior to January 1979. Although he was de-
scribed as an outstanding mechanic his work habits and
his general attitude were extremely poor. Schaeffer de-
cided to discharge him prior to February 22, bui then
changed his mind because Spiess was an outstanding me-
chanic and management feared such a move would be
perceived as retaliation for his union activities. The
record is unclear as to when Schaeffer decided not to
fire Spiess. Schaeffer did testify that he again decided to
terminate Spiess in the latter part of March after he had
failed to come to work, with the excuse of illness when,
in fact, he was not sick. Even after this final decision,
termination did not occur until after the election.
Schaeffer explained he felt an earlier discharge would be
misunderstood as retaliation for Spiess' union activities.
The credible evidence leads me to believe that Spiess
was far less than an ideal employee. He admitted that he
was often late and took a sick day when he was not ac-
tually ill. Apparently, he had insulted a black customer
and in general he displayed an unacceptable attitude
toward his employer and his fellow employees. Howev-
er, all of these shortcomings were either ignored or con-
doned by Respondent's failure to discipline him at an
earlier period. In 1978, he was promoted to second-shift
supervisor. In 1979 he was given a $30 bonus. Schaeffer
contends they put up with his unacceptable conduct be-
cause he was an outstanding mechanic. Whether he was
classified as a good or bad employee, it is clear that nei-
ther his attitude nor work habits changed prior to his ter-
mination. The only visible change was his activity during
the period of union organization.
I find that although Spiess may have been a poor em-
ployee the predominant reason for his discharge was
based on his union activities and therefore was in viola-
tion of Section 8(a)(1) and (3) of the Act.
6. Representation proceedings
The Teamsters Union and the Machinists Union filed
joint objections to the elections of April 13 and 16, 1979.
The Regional Director for Region 14 issued a Report on
Objections and Recommendations and order directing
hearing and order consolidating cases on May 14, 1979,
wherein he concluded that Objections 1, 2, 3, 5, 7, and
"other Acts and Conduct" as to Parts A and B raised
substantial material issues with respect to conduct affect-
ing the results of the elections.
I have found that Respondent through Lowry, its
president, and/or Schaeffer, a store manager, did, in fact,
interrogate employees concerning union activities; threat-
en employees with the closure of a service center, more
onerous working conditions, and loss of benefits; pro-
vided an unscheduled $30 benefit; and discharged three
employees, Spiess, Protte, and Brier, in violation of Sec-
tion 8(a)(1) and (3) of the Act. Generally, the Board has
held that "conduct violative of Section 8(a)(1) is, a for-
tiori, conduct which interferes with the exercise of a free
and untrammeled choice in an election. Dal-Tex Optical
Company, Inc., 137 NLRB 1782, 1786 (1962). In a recent
case, Super Thrift Markets, Inc. t/a Enola Super Thrift,
MARK I TUNE-UP CENTERS, INC. 911
233 NLRB 409 (1977), the Board noted, "The only rec-
ognized exception to this policy is where the violations
are such that it is virtually impossible to conclude that
they could have affected the results of the election." In
the present case, I find such an exception does not apply
since Respondent's conduct could have affected the re-
sults of the election. Therefore, I conclude that Respond-
ent's illegal conduct tended to restrain the free choice of
its employees and a second election by secret ballot
should be directed at such time as the Regional Director
deems appropriate.
IV. THE EFFECTS OF THE UNFAIR ABOR PRACTICES
UPON COMMERCE
Respondent's unfair labor practices occurring in con-
nection with its operations set forth in section III, above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to disputes burdening and obstructing
commerce and the free flow of commerce.
CONCLUSIONS OF LAW
I. Mark I Tune-Up Centers, Inc., is an employer
within the meaning of Section 2(2) of the Act, engaged
in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Teamsters Union and the Machinists Union are
labor organizations within the meaning of Section 2(5) of
the Act.
3. By the following conduct Respondent has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act:
(a) Coercively interrogating employees regarding
union organization, leaders, membership, and activities.
(b) Threatening employees with possible closure of a
service center and loss of employment if the Union be-
comes their bargaining representative.
(c) Threatening employees with a decrease in benefits
and an increase in onerous working conditions if the
Union becomes their bargaining representative.
(d) Asking employees to refrain from supporting the
Union and to avoid their meetings.
(e) Giving an unscheduled and unearned bonus to dis-
courage union activity.
(f) Soliciting an employee to maintain a surveillance of
other employees' union membership and activities.
4. Respondent violated Section 8(a)(l) and (3) of the
Act when it discharged its employees George Brier,
Robert Spiess, and David Protte and by failing and refus-
ing thereafter to reinstate them because said employees
engaged in activities for and on behalf of the Union.
THE REMEDY
Having found that Respondent committed numerous
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, as enumerated above, my recommended
Order will require Respondent to cease and desist there-
from, and to take certain affirmative action designed to
effectuate the policies of the Act.
It will also be recommended that the election conduct-
ed on April 13 and 16, 1979, in Case 14-RC-8873 be set
aside and that the matter be remanded to the Regional
Director for Region 14. for the purpose of conducting
another election at such time and place he deems circum-
stances permit the free choice of a bargaining representa-
tive.
Based upon the foregoing findings of fact, conclusions
of law, the entire record in the matter, and pursuant to
the provisions of Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER1
The Respondent, Mark I Tune-Up Centers, Inc., St.
Louis, Missouri, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Coercively interrogating employees regarding
union organization, its leaders, membership, and activi-
ties.
(b) Threatening employees with possible closure of
service centers and loss of employment if the Union be-
comes their bargaining representative.
(c) Threatening employees with a decrease in benefits
and an increase in onerous working conditions if the
Union becomes their bargaining representative.
(d) Asking employees to refrain from supporting the
Union and to avoid its meetings.
(e) Giving unscheduled and unearned bonuses to dis-
courage union activity.
(f) Soliciting employees to maintain a surveillance of
other employees' union membership and activities.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Offer George Brier, Robert Spiess, and David
Protte immediate and full reinstatement to their former
positions of employment, dismissing, if necessary, anyone
who may have been hired or assigned to perform the
work that they had been performing, or, if their jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay or other bene-
fits. Backpay for George Brier, Robert Spiess, and David
Protte shall be computed on a quarterly basis in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest to be paid on the
amounts owing and to be computed in the manner pre-
scribed in Florida Steel Corporation. 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962), enforcement denied on different
grounds 322 F.2d 913 (9th Cir. 1963).
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
III the e tt no exceptiorl aire filedl a, pro tided h S 102 4 of
Ihe Rules ;.lI Reglll.ll on, of tlhe Nillollil I[ ;hll Relation , Board,. the
indtillgs, (.Mncluhln. aild rClm lmm cllt l ()irder hereil hall. ais pro nidd
Ill SA 102 4 of te Rule, ald RgtllIltnrl h d admpliel h The Ioard indl
hecorllC ils frlfinllgn. 1l0lm USionrl .anld ()rter. ild .ll, a hlcbltioll l Ihereto
5it1il h dermed in tn cifor all prpses
MARK TUNE-UP CENTERS, INC.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its headquarters at 8502 Manchester Road,
St. Louis, Missouri, and at each of its eight facilities lo-
cated in the St. Louis and St. Charles Counties, Missouri
and Fairview Heights, Illinois, the attached notice
marked "Appendix."2 Copies of said notice, on forms
provided by the Regional Director for Region 14, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in and
about work areas and other areas as indicated above, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the election held on
April 13 and 16, 1979, in Case 14-RC-8873 be, and it
hereby is, set aside and that case is hereby remanded to
the Regional Director for Region 14 for the purpose of
scheduling and conducting another election at such time
that he deems circumstances permit the free choice on
the issue of representation.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed as to all allegations of unfair labor
practices not herein found to have occurred.
12 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF: THE
NATIONAIr LABOR RELATIONS BOARI
An Agency of the United States Government
Following a hearing at which all parties had an opportu-
nity to present evidence and cross-examine witnesses, the
National Labor Relations Board has found that we vio-
lated the National Labor Relations Act, as amended, and
has ordered us to post this notice. We intend to abide by
the following:
Section 7 of the Act gives all employees these
rights:
To organize themselves
To form, join, or support unions
To bargain as a group through representatives
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining rep-
resentative and employer have a collective-bar-
gaining agreement which imposes a lawful re-
quirement that employees become union mem-
bers.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT coercively interrogate employees
regarding union organization, leaders, membership,
or activities.
WE WILL NOT threaten employees with possible
closure of service centers or loss of employment if
the Union becomes their bargaining representative.
WE WILL NOT threaten employees with a de-
crease in benefits and an increase in onerous work-
ing conditions if the Union becomes their bargain-
ing representative.
WE WILL NOT ask employees to refrain from sup-
porting the Unions nor to avoid attending their
meetings.
WE WILL NOT give unscheduled and unearned
bonuses to discourage union activity.
WE WILL NOT solicit employees to maintain a
surveillance of other employees' union membership
and activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights under Section 7 of the Act.
WE WILL offer to reinstate immediately George
Brier, David Protte, and Robert Spiess to their
former jobs or, if those jobs no longer exist, to simi-
lar jobs, without loss of seniority or other rights
and privileges, and make them whole for any loss of
pay they may have suffered as a result of their ter-
minations on March 26, 1979, and April 23, 1979,
together with interest thereon.
Our employees are free to engage in union activity on
behalf of any labor organization or to engage in other
concerted activity for their mutual aid or protection or
not to do any of these things.
MARK I TUNE-UP CENIERS, INC.