Mel Croan Motors, Inc.Download PDFNational Labor Relations Board - Board DecisionsMar 27, 1967163 N.L.R.B. 601 (N.L.R.B. 1967) Copy Citation MEL CROAN MOTORS ordered to cease and desist from such conduct and from any like or related invasion of its employees' Section 7 rights, and to take affirmative action, which I find necessary to remedy and to remove the effect of the unfair labor practices and to effectuate the policies of the Act. Accordingly, on the basis of the foregoing findings and conclusions of the entire record, I recommend pursuant to Section 10(c) of the National Labor Relations Act, as amended, issuance of the following: . ORDER Respondent, World Carpets of New York, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with Allied Trades Union, Local No. 18, National Federation of Independent Unions, as the exclusive representative of the employees in the following appropriate unit: All warehouse employees at the Comnany's Garden City, New York, warehouse, excluding office clerical employees, salesmen , guards and supervisors as defined in the Act. (b) Threatening to close down its warehouse in reprisal APPENDIX NOTICE TO ALL EMPLOYEES 601 Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain upon request with Allied Trades Union , Local No. 18, National Federation of Independent Unions, as the exclusive representative of our warehouse employees. WE WILL NOT threaten to close down warehouse before letting in the Union. our WE WILL NOT promise our employees wage increases if they abandon their support of the Union. WE WILL NOT interfere with our employees' union activities. WORLD CARPETS OF NEW YORK, INC. (Employer) Dated Byees' union activitiesloitf .yor s emp (c) Promising wage increases to induce employees to abandon their support of a union. (d) In any like or related manner interfering with, restraining , or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Union as the exclusive representative of all employees in the above-described appropriate unit, and (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 596-5386. embody in a signed agreement any understanding Mel Croan Motors, Inc. and Robert A. Feral reached. and Jesse Frields. Cases 23-CA-2360 and (b) Post at its warehouse in Garden City, New York, copies of the attached notice marked "Appendix."2 Copies of such notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places , including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 29, in writing , within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.3 2 In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." ' In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for Region 29, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith." 2360-2. March 27,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On December 2, 1966, Trial Examiner Samuel Ross issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices and recommended the dismissal of such allegations. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 163 NLRB No. 77 602 DECISIONS OF NATIONAL The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed .' The rulings are hereby affirmed . The Board has considered the Trial Examiner ' s Decision , the exceptions and the brief, and the entire record in the case, and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Mel Croan Motors, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. Respondent contends that the Trial Examiner was biased and prejudiced and that as a result it was denied a fair hearing We have carefully examined the record and the argument made by Respondent in support of its contention and are satisfied, on the basis of the entire record, that the contention is without ment TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SAMUEL Ross, Trial Examiner: Upon charges filed on April 20 and May 9, 1966, respectively, by Robert A. Ferstl and Jesse Frields, the General Counsel of the National Labor Relations Board issued a complaint on June 29, 1966, alleging that Mel Croan Motors, Inc., herein called the Respondent, engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. In substance, the complaint alleges that the Respondent, by unlawful interrogation and threats of discharge, interfered with, restrained, and coerced employees in the exercise of their rights guaranteed by Section 7 of the Act, and that it discharged two employees because they had engaged in protected concerted activities, and had formed a labor organization. The Respondent filed an answer which denies the commission of unfair labor practices. Pursuant to due notice, a hearing was held in Houston, Texas, on September 7, 1966. Upon the entire record in the case, and my observation of the witnesses and their demeanor, and after due consideration of the briefs filed on October 19, 1966, by the Respondent and the General Counsel, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent, a Texas corporation whose principal place of business is located in Houston, Texas, is engaged in the business of selling, servicing, and repairing automobiles and parts. During the past 12 months, a representative period, the Respondent purchased All dates hereafter refer to 1966 unless otherwise noted e See Gullen Gin Company, Inc v. N L R B., 179 F.2d 499, 502 (C A. 5), in which the court of appeals refused to enforce the LABOR RELATIONS BOARD automobiles, parts, and other products valued in excess of $50,000 from distributors located in the State of Texas, which were received by said distributors directly from places located outside the State of Texas. During the same period, Respondent received gross revenues in excess of $500,000 from its sales and services. The Respondent's answer admits the foregoing data concerning its business operations, admits that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it is so found. II. THE ALLEGED LABOR ORGANIZATION INVOLVED On February 23, 1966,' the Respondent's mechanics held a meeting at which they agreed to present in concert a demand upon Respondent for increased compensation, shorter hours, and other improvements in their conditions of employment, and designated Jesse E. Frields, one of the alleged discriminatees herein, to act as their spokesman. As more fully detailed hereinafter, later that day Frields presented the agreed-upon demands to Respondent in the presence of all, or substantially all, of the Respondent's mechanics. The complaint alleges, and the Respondent's answer denies, that this informal "committee" is a labor organization within the meaning of Section 2(5) of the Act. The only significance of this allegation to the issues herein is that, based thereon, the complaint alleges that the Respondent's later discharge of Frields and Robert A. Ferstl, another mechanic, violated Section 8(a)(3) of the Act, because it was motivated by their activity in forming the said labor organization. However, the complaint also alleges that the same activities of Frields and Ferstl constituted "protected, concerted activities," and that their discharge for engaging therein violated Section 8(a)(1) of the Act. Since the remedy of reinstatement and backpay would be the same if either of these violations is established, and in view of the findings hereinafter made, I regard it as unnecessary to determine whether the discharge of Frields and Ferstl violated Section 8(a)(3) as well as Section 8(a)(1), or whether the informal group or committee constituted a labor organization within the meaning of Section 2(5) of the Act.2 III. THE UNFAIR LABOR PRACTICES A. Background The Respondent is an authorized Volkswagen dealer, and in conjunction with its sales of automobiles, it also operates a service department for the repair of Volkswagens. At the times material herein, the Respondent employed about 12 mechanics in its service department whose regular hours of employment were from 7:30 a.m. to 6 p.m. on week days, and from 7:30 a.m. to 1 p.m. on Saturdays. The compensation of the mechanics was based on a percentage (45 percent) of the labor charges3 which Respondent billed its customers for their work. The number of hours of labor for which Respondent billed its customers and paid its mechanics was based, not on the actual time consumed in performing the particular jobs, but on the time for that type of repair which is suggested Board's decision that a like informal group was a labor organization within the meaning of the Act 3 $6 per hour MEL CROAN MOTORS 603 by the manufacturer's repair manual.4 Because of this method of computing their compensation, it obviously was to the advantage of the mechanics if they could complete their repair jobs in less than the time allotted by the manufacturer ' s manual , and conversely, delays in completing repair jobs diminished their earning potential. The Respondent on occasion calls service meetings of the mechanics for the purposes of training, announcing shop policies or policy changes, and reading the latest repair bulletins received from the manufacturer. Prior to the events which precipitated the instant proceeding, the mechanics at some of these service meetings voiced dissatisfaction with the percentage of the labor charge which they received, with the length of their hours of employment, and with delays which they encountered in securing parts for their jobs from the Respondent's parts department. These complaints were not adjusted by Respondent, at least not to its mechanics' satisfaction. B. Interference, Restraint, and Coercion 1. Interrogation and threats of discharge As previously noted, on February 23, substantially all of Respondent's 12 mechanics met by prearrangement at lunchtime in a drugstore near their place of work, and there agreed upon certain demands to present in concert to Respondent after lunch, regarding their compensation, hours, and other conditions of employment. At this meeting, the mechanics also requested Jesse Frields to act as their spokesman in presenting the demands, and he agreed to do so. At the conclusion of the mechanics' lunch period, instead of returning to work, they went to Respondent's conference room, and Frields and Larry Ancelot, another mechanic, went to Service Manager Kenneth Sharp's office to arrange for Mel Croan, Respondent's president and general manager, to meet with the assembled mechanics. Frields and Ancelot told Sharp that the mechanics "had got together," that they were in the conference room, and that they wanted to talk to Croan. According to Frields' credited testimony, Sharp reacted to this request by asking Ancelot and him, "who started it and how it got started?" Ancelot replied, "What difference does it make?"5 Sharp then telephoned Croan and notified him that the mechanics wanted to speak with him. Croan replied that Sharp, as service manager, should be able to handle the matter himself. Sharp reported Groan's response to Frields and Ancelot, but they replied that they had spoken to Sharp before to no avail, and "would like to talk to Mr. Croan." Again Sharp telephoned Croan, and he agreed to meet with the mechanics. Groan came to the conference room accompanied by Sharp and Sales Manager George Belin. He was "admittedly provoked" with his mechanics for insisting on his attendance there, and because they were not working.6 He asked the mechanics "what was going on?" Frields replied that "the mechanics had gotten together and appointed [him] as spokesman." Groan responded: . that nobody called him to a meeting-it was his place-if any body called a meeting it would be him-and the only way he would meet anybody's demands was through a union. Frields, apparently startled by Groan's vehemence, apologetically replied that he "hadn't started it," and that he "was just appointed spokesman." He then read the list of the mechanics' demands which were as follows: (a) that their hours of employment be reduced from 7:30 a.m. to 6 p.m. to 8 a.m. to 5 p.m., and that they have a "complete Saturday off every now and then"; (b) that their compensation be increased from 45 to 50 percent of the Respondent's charge to its customers for their labor; and (c) that new help be employed in the parts department to eliminate the delays which the mechanics had experienced when they needed parts for their repair jobs. Groan responded to these demands by repeating his like responses when the same subjects had been discussed on earlier occasions. In respect to the commission rate, Groan told the mechanics that they were making more at 45 percent of $6 per hour, than when he paid them 50 percent and the hourly labor charge for their services was $5 per hour. In respect to shorter hours, Groan said that he could not reduce them and still accommodate his customers' requirements for speedy service, unless he hired mo.e mechanics, in which event the present employees would earn less. Regarding the delays at the parts department, Groan admitted that Addison, the parts man, was a "smart aleck" and Groan promised to talk to him "about this." Finally, according to the credited composite of the testimony of Frields, Ferstl, and E. Dean Rider, another mechanic, Groan told the employees that he disliked having demands presented to him in this fashion, that he had started the business by himself, that he had operated it without mechanics in the past, that he could do it again, and that anyone who "didn't like it," could write their names down on a sheet of paper, and he would have their final paychecks prepared. Croan and Service Manager Sharp then left the room leaving the mechanics and Sales Manager Belin behind.7 After Groan's departure, instead of returning to work, all of the mechanics placed their names on a piece of paper, thereby indicating their amenability to terminating their employment. Thereupon, Sales Manager Belin urged ' According to Kenneth D. Sharp, the Respondent's service manager, the length of time suggested by the manual for repair jobs "is generally more than the time it takes to do the job." 5 In respect to this incident , Sharp testified, "I think I asked the question what was it about and they wouldn 't comment, they still wanted to see Mr. Croan." Since Sharp's testimony , unlike Fnelds', indicates uncertainty regarding the nature of his interrogation of these two employees, and Frields impressed me as a frank and credible witness, his version of this interrogation is regarded as more reliable and credited 6 The quotes are from Resp br , p. 3 ' Croan's version of what he told the mechanics after discussing the demands was as follows- I suggested to them that Volkswagen mechanics being the scarcity [ sic] that they are, that they would have no trouble going any place and finding a job, and if they were not happy here then I suggested that they quit If, on the other hand, they did not want to quit , well, for goodness sakes get down and take care of our people [ customers ] So with this I left Croan's testimony above is not regarded as reliable and is not credited for the following reasons Croan was "admittedly provoked" with his mechanics for calling a meeting and making demands upon him at a time when they should have been working In the fight of that admission , the testimony of Frields, Ferstl, and Rider, credited above, is more likely what an angry employer would say under such circumstances than the diplomatic and polite version to which Croan testified Moreover, on cross -examination Croan was an evasive witness, and on a number of subjects his testimony was self-contradictory Accordingly, Croan's testimony is regarded as generally not reliable, and is credited only when it comports with other credited testimony or constitutes an admission against interest. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the mechanics to remain in Respondent's employ, and told them "how good the working conditions were." As a result, first one mechanic, and then another and another, decided that he couldn't afford "to lose his job," and "eventually everybody started scratching their names off the list." The mechanics were still discussing what to do when Croan cams back to the room after an absence of about 15 or 20 minutes. Upon his return, Croan individually asked a number of the mechanics, including Frields and Ferstl, "Do you want your final check or do you want to go back to work." Frields replied that he "couldn't afford to lose [his] job." Others stated, "I need my job." All of them then returned to work. 2. Concluding findings in respect to interrogation and threats of discharge The complaint alleges that the Respondent violated Section 8(a)(1) of the Act by Sharp's interrogation of Frields and Ancelot as to "who started" the mechanics' decision to present concerted demands upon Respondent, and "how it got started." The Respondent's brief contends that the matters inquired about by Sharp "were properly within his purview . to know, and were rhetorical, impersonal and not individual inquiry." I regard this contention of Respondent as devoid of merit. Sharp's questions were neither rhetorical or impersonal, and unlike the case cited by Respondent in support of its contention" they were addressed to two individuals, and not in speeches to large groups of employees. The Respondent was opposed to its employees' concerted activities. It had no legal right to know who started them, and no need to know, unless it intended to use that knowledge to discriminate against the offending parties. The interrogation obviously restrained and coerced Frields and Ancelot since they declined to answer Sharp's questions, and Frields, at the meeting which followed, deemed it necessary to tell Croan that he "hadn't started it," but had merely been appointed as spokesman. In view of these circumstances, it is found that by Sharp's interrogation of Frields and Ancelot, Respondent interfered with, restrained, and coerced its employees in the exercise of their right, guaranteed by the Act, to engage in concerted activities, and thereby the Responcient engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. The complaint further alleges that the Respondent violated Section 8(a)(1) of the Act by Croan's threat to discharge employees for engaging in protected, concerted activities. The Respondent does not deny that President "Croan was `put out' about the meeting being called by his employees during working hours."9 The employees were, in effect, engaged in a work stoppage or strike in support of demands for more compensation, shorter hours, and other improvements in their working conditions. The work stoppage and/or strike for this purpose was concerted activity protected by the Act. Croan's reaction to this activity was to tell his employees that he had managed to run his business without mechanics before, and could do so again, and that anyone who "didn't like it," could write their names down and he would have their final paychecks prepared. Later, when Croan returned to the meeting after his employees had deliberated about his ultimatum, Croan individually asked a number of the employees whether they desired their final paycheck, or whether they wanted to return to work. These statements and inquiries by Croan clearly conveyed the threat that unless the mechanics immediately abandoned their work stoppage or strike, their employment by Respondent would be permanently terminated. By these threats, the Respondent clearly interfered with, restrained, and coerced employees in the exercise of their right to engage in concerted, protected activity, and thereby it engaged in further unfair labor practices within the meaning of 'Section 8(a)(1) of the Act. C. The Discharge of Frields and Ferstl on February 25 On February 25 at midday, 2 days after the mechanics' meeting with Croan described above, the Respondent, without prior warning, discharged three of its mechanics, Jesse Frields, Robert Ferstl, and Larry Ancelot. 10 Jesse Frields was hired by Respondent as a mechanic on April 1, 1965. He worked in the Respondent's unit room rebuilding engines. Ferstl was hired by the Respondent as a mechanic in August 1965. Ancelot also worked as a mechanic for Respondent. As noted above, Frields and Ancelot were the two mechanics who visited Service Manager Sharp's office on February 23, and insisted that Croan, and not Sharp, meet with the mechanics in the conference room. At the meeting which followed, Frields acted as spokesman for the Respondent's mechanics in presenting their concerted demands for increased compensation, shorter hours, and other improvements in their working conditions. Ferstl was one of the mechanics who attended that meeting, and when Croan temporarily left, Ferstl, in the presence of Sales Manager Belin," attempted to dissuade one mechanic (who was vacillating) from removing his name from the list of employees who had accepted Croan's ultimatum to terminate their employment if they were dissatisfied. On February 25, 2 days later, about 10 a.m., Ferstl was assigned a repair job on a Volkswagen bus on the top of which there was fastened an aluminum boat. In connection with this repair job, Ferstl was required to drive the bus into the service department by way of an electrically operated rear door which opens up and down in response to finger pressure on push buttons. Ferstl quite apparently failed to open the door fully before he drove the bus into the shop because, as he did so, the boat struck the bottom of the door, shattered several panes of glass, and caused some other damage to the door, but none to the boat or the Volkswagen bus. Ferstl immediately notified Shop Foreman Carl Newman about the accident, and the latter helped Ferstl sweep up the broken glass 0 Imco Container Co ofHarnsonburg v. N L R B , 346 F.2d 178, 181(C.A 4). 0 Resp. br., p. 5 10 There is no allegation in the complaint that Ancelot's termination violated the Act. During the hearing, testimony was received without objection by either side regarding Ancelot's dismissal and the Respondent 's alleged reason therefor Just before the hearing closed, the General Counsel moved to amend the complaint to include an allegation that Ancelot 's discharge also violated the Act . However, he later withdrew the motion when the Respondent claimed surprise and I indicated that I would grant Respondent a continuance as a condition precedent to amending the complaint 11 The record clearly discloses that Belin had authority to hire and fire salesmen for Respondent , and that in Croan's absence, he acted as general manager. It therefore is clear and is found that Belm was a supervisor within the meaning of Section 2 (11) of the Act. MEL CROAN MOTORS 605 from the floor of the shop. While helping Ferstl, Newman said nothing to Ferstl about possible discharge or other discipline for causing the accident. After cleaning up the glass, Ferstl spent the next 2 hours in completing the repairs for which the bus had been left with Respondent. He then went to lunch. Upon his return from lunch, Ferstl, accompanied by Ancelot, went to the dispatcher's office to receive their next repair assignments . While waiting there, Shop Foreman Newman told them to go to Service Manager Sharp's office. According to Ferstl's uncontroverted and credited testimony, when they arrived at Sharp's office, Newman told Ferstl and Ancelot that "he was going to have to let us go, [that] he didn't like to fire us, but he just had to go along with the orders that were given him...." Ferstl asked Newman why he was being fired, and Newman replied that "it was because of this meeting we had had earlier, and [that Ferstl's accident] that morning ... sort of put the icing on the cake, and that Mel Croan just said let the three of us go." 12 Shortly thereafter, while waiting for his final paycheck, Ferstl had a conversation with Croan. According to Ferstl's credited testimony, which was not denied by Croan, he asked Croan, "if he blamed me for breaking the door." Croan replied, "Yeah, he thought it was just carelessness." Ferstl then asked Croan if he was being fired "just for breaking the door, or what?" Croan replied that "it was over this meeting that he fired the three, Larry Ancelot, Jesse [Frields] and myself, because we got too hot.... and when anybody gets too hot for him [Croan] to handle, he has to let them go." Groan also told Ferstl, according to the latter's uncontroverted and credited testimony, that "we are three of his best mechanics, and if we ever wanted a recommendation, he would give it to us, but we just got too hot for him to handle." While Ferstl and Ancelot were being told by Newman that they were being fired, Frields was having lunch with his wife in the Respondent's conference room. Right after lunch, Frields also was notified by Shop Foreman Newman that he "was being fired." Frields asked, "Why?" and according to his uncontroverted and credited testimony, Newman replied, "Well, between the [February 23] meeting we had and the door that had been knocked down by Bob [Ferstl], that was the last straw and he would have to let three or four of us [mechanics] go."13 Frields then went to the dispatcher's office where he encountered Groan, to whom he apologized, saying, "I was sorry the meeting took place, but I didn't start it. . . I was just appointed spokesman." 14 The next day, Frields asked Groan "if he would give me [Frields] a recommendation." According to Frields' uncontroverted and credited testimony, Groan replied that "he would be glad to [do so]," that Frields' "work was satisfactory," and that the only difference between them was their "personal disagreement, I [Frields] wanted things one way and he [Groan] wanted them the other, and if I ever straighten myself out I would be a good boy." About 1-1/2 months after the discharge of Frields and the other two mechanics, E. Dean Rider, another of the Respondent's mechanics, had a conversation with Groan about Frields' discharge. According to Rider's credited testimony, he told Groan that the latter "had definitely got rid of one man that had nothing to do with-the flare- up-other than being named as the spokesman ... [and] asked to speak for us [the mechanics]." Groan replied that he realized that now, but that "too much time had passed," and "it was too late to do much about [it] at that time."' S At the opening of the hearing, the Respondent asserted that Ferstl "was discharged for negligence," and more specifically because, on two occasions within a period of about 2 weeks, he had "caused substantial damage to the property of a customer and the property of Mel Groan Motors.... and he was discharged for that reason and no other." At the same time, Respondent also asserted that Frields was discharged "because of his attitude and his lack of cooperation." In support of these contentions, Groan testified that "immediately after" his February 23 meeting with the mechanics, and as a consequence thereof, he became "concerned" about low employee morale. Accordingly, Groan testified that for the next 2 days, he talked to all of the mechanics in the shop (individually and sometimes by twos), and asked them, "What are your complaints?" Groan further testified that in connection with this morale tour, he spoke to Frields about 8 or 9 a.m. on the day of Frields' discharge. However, when Groan was asked to state "what the conversation was" he could not recall it. Nevertheless, he testified to the conclusion that "Frields repeated the complaints and gripes and his dissatisfaction with everything in general." This, according to Groan, was not something new, but merely a repetition of like complaints voiced to him by Frields on many prior occasions, namely, that: Jesse felt like he wasn't making enough money, that he was working too long hours, that opportunity had been deprived him, that he had to wait too long at the parts counter, [and] that I didn't employ a porter to clean up after him. The whole organization didn't suit Jesse Frields. Groan further testified that immediately after he spoke to Frields, he also asked Ancelot to state his complaints, and that "Ancelot's attitude was basically the same [as Frields']." Accordingly, Groan testified, he came to the 12 Newman , although a witness for Respondent , did not deny that he told Ferstl and Ancelot that their termination was motivated , at least in part , by the mechanics' meeting of February 23 with Croan. 13 Newman , a witness for Respondent , did not deny that he made this statement when he notified Fnelds that he was being fired. 14 Frields could not recall Croan's reply and Croan did not testify regarding this encounter. IS Croan admitted that he had such a conversation with Rider and that Rider "could have" made the comments quoted above regarding the reasons for Frields ' discharge, but he denied that he made the response attributed to him by Rider Croan also testified that he made no reply to Rider's statement about the reason for Frields' discharge because it was a subject he didn't care to discuss with Rider However, a few moments later, when Croan was asked whether he said nothing in response to Rider, he admitted, "I am sure I must have said something," and, when Croan was asked, "What did you say then2" he replied, "I don't have any idea " In the light of the evasions and the self- contradictions inherent in Croan's testimony regarding this conversation , and for the reasons stated in fn 7, supra, I do not credit Croan's denial of Rider's testimony that Croan in effect agreed with him that Frields was fired because of his activity in connection with the meeting of February 23. Moreover, in view of Croan's inability to recall his response to Rider's comment about the reason for Frields ' dismissal , Rider 's positive and unqualified testimony concerning the nature of Croan's reply is regarded as more reliable and is credited. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusion that Frields and Ancelot were "two people I couldn't possibly satisfy and that this was the reason for their discharge.16 Nevertheless, Croan did not discharge Frields and Ancelot at the time he allegedly reached this conclusion. About 10 a.m. on the day that Croan allegedly interrogated Frields and Ancelot regarding their complaints, Ferstl had the accident previously described which caused damage to the Respondent's rear entrance door to the service department. According to Ferstl's frank admissions , this was the second accident and the third incident in which he had been involved during his employment by Respondent. The first had occurred in September 1965, shortly after Ferstl began to work for Respondent. On that occasion Ferstl had neglected to close a car door while raising it on the lift, and as a result, the door of the car had been damaged and was later replaced by Respondent at a cost of about $100. The second incident, which occurred 1 month later in October 1965, involved an alleged failure by Ferstl to replace oil in the transmission of a car in which Ferstl had installed the motor, and as a result of which the transmission bearings were scored and damaged and subsequently replaced. Ferstl, based on his prior experience in other Volkswagen repair shops, had assumed that when the transmission was "pulled," the backing plate had been left on and the oil in the transmission had not leaked out. Shop Foreman Newman admitted that Ferstl so told him when the absence of oil was discovered. In any event, Ferstl performed the resulting repair labor without cost to Respondent, and the latter furnished the necessary bearings valued at from $30 to $40. Shortly after the accident occurred on February 25, Shop Foreman Newman called Croan, reported the incident, and asked whether Ferstl should be required to pay for the damage to the door. Croan testified that he replied that he would pay for it, and that he also said, "This is the second or third accident. Just please let him go." According to Croan, immediately after hanging up the telephone, he walked over to Newman's office and instructed him also to discharge Frields and Ancelot. Croan specifically denied that Frields was terminated because he was the spokesman for the mechanics at the February 23 meeting." D. Concluding Findings in Respect to the Discharge of Frields and Ferstl On the foregoing record, and for the reasons hereinafter stated, it is fairly obvious that Frields was summarily fired by Respondent because of his leading role in connection with the mechanics' meeting with Croan on February 23, and not because of his gripes and complaints about his wages, hours, and working conditions. Notwithstanding that before the February 23 meeting, Frields allegedly had been a chronic griper throughout his tenure of employment by Respondent, he had never been warned that his dissatisfaction with his working conditions might lead to disciplinary action or discharge. The grievances and complaints which, according to Croan's discredited testimony, Frields expressed on the date of his discharge, admittedly were no different than those which he had voiced on behalf of all the mechanics at the February 23 meeting. Concededly, Respondent badly needed Volkswagen mechanics, such mechanics were scarce in the area, and Frields was a competent Volkswagen mechanic. Under the circumstances, it stretches credulity beyond belief that the Respondent would likely have dispensed with the services of such an employee for a subjective reason like "his attitude," or gripes and complaints. Furthermore, contrary to the assertion of Respondent when the hearing opened, there was no evidence of "lack of cooperation" by Frields. All of the foregoing impels the conclusion which is made that the reason asserted for Frields' peremptory dismissal without warning is pretextual , and was advanced for the purpose of concealing the true motivation for his termination. The real reason for Frields' discharge is quite evident from the record. He had called President Croan to a meeting with his employees during working hours. Croan was admittedly "provoked" and "put out" by the meeting, and by the work stoppage during the meeting. Frields was the spokesman for the employees in demanding more pay, fewer hours, and other improvements in working conditions. Croan was opposed to most , if not all, of these demands, and in effect, threatened the employees with discharge if they did not immediately return to work. Notwithstanding Frields protestations that he was merely the spokesman, and had not "started it," it is quite apparent that Respondent regarded Frields as primarily responsible for this "flare-up." Indeed, when Frields asked why he was being fired, he was told by Shop Foreman Newman, "Well, between the [February 23] meeting we had and the door that had been knocked down by Bob [Ferstl] that was the last straw and he would have to let three or four of us [mechanics] go." Clearly and undisputably, Frields had nothing to do with Ferstl's accident on February 25. It is, therefore, quite obvious and found that Frields was discharged because he had engaged in protected, concerted activities , and that the Respondent thereby engaged in further unfair labor practices within the meaning of Section 8(a)(1) of the Act. 18 Ferstl was discharged by Respondent at the same time and on the same day as Frields and Ancelot. The is Contrary to Croan's testimony, Frields, Ferstl, and Rider all denied that Croan had made any inquiry of them regarding their complaints after the February 23 meeting Since these witnesses impressed me as frank and reliable , their denials are credited In view of this credibility determination , and since as previously noted, Croan's testimony is regarded as generally unreliable, his testimony , that in connection with his tour to restore employee morale, he questioned all the employees about their complaints (including Frields, Ferstl, and Rider), is not credited. 11 Croan also denied that he "ever found out" that Frields and Ancelot were the employees who had notified Service Manager Sharp on February 23 that the mechanics wanted to meet with him, and who had insisted that he and not Sharp attend However, shortly after making this demal, Croan diluted it by testifying, "If I did find out it made no impression." Since Sharp, the admitted head of the service department, had knowledge of the identity of the employees who had asked him to call Croan to their meeting, the Respondent quite obviously is chargeable with such knowledge . In any event , it is inconceivable that Croan did not ascertain from Sharp the identity of the employees who had insisted on his attendance at the meeting , and therefore , contrary to Croan 's denial, it is found that he had such knowledge . Dyer v. MacDougall, et at., 201 F 2d 265, 269 (C.A 2) 11 I am also persuaded by the record that Ancelot's discharge, which Respondent asserted was for the same reason as Frields', was motivated by Ancelot's role in calling Croan to the February 23 meeting, and in insisting that Croan , and not Sharp, attend However , since there is no allegation in the complaint that Ancelot' s discharge violated the Act (see fn 10, supra), no finding of violation will be made , and no remedial order will be recommended MEL CROAN MOTORS 607 Respondent contends that Ferstl's discharge was motivated by his carelessness on that day which caused damage to the rear door of its service department, and by his two prior acts of negligence, all of which have been described above. Obviously, the Respondent could lawfully fire Ferstl if the accidents were the only reason for his termination . On the other hand, if a substantial motivating reason was also Ferstl's concerted activities in connection with the February 23 meeting with Croan, his termination , even though it was also motivated by his accidents, would be unlawful under the Act.16 For the reasons hereinafter explicated, I am persuaded that Ferstl's concerted activity was a substantial , motivating reason for his termination , and that, therefore his discharge was unlawful. (a) Accidents admittedly are not an unusual occurrence at the Respondent's facility. According to President Croan, the number of accidents vary, sometimes long periods of time pass with no accidents , and then "all of a sudden we [Respondent] will get a rash of them." (b) Prior to Ferstl's termination , no mechanic had ever been discharged by the Respondent for causing an accident .20 Two mechanics who had a head-on collision while road testing Volkswagens were not discharged * 21 Ferstl was not discharged, either when he had his first accident which caused damage to the door of a Volkswagen, or when he failed to put oil in the transmission of a car in which he had installed the engine.22 (c) Respondent needed experienced mechanics "when Croan ordered Ferstl's discharge (and that of Frields and Ancelot). Competent Volkswagen mechanics in the Houston area were scarce and hard to recruit. Under the circumstances, it is unlikely that Croan would have fired Ferstl merely because of the door accident'23 especially since Shop Foreman Newman had suggested only that Ferstl be required to pay for the damage to the door. (d) Croan exaggerated the extent of the damage to the rear door which was caused by Ferstl's last accident. In this regard, Croan testified that Respondent's Exhibit 1 "is the repair bill to repair the door that was damaged by Mr. Ferstl. The amount of that bill was $142.41."24 However, on cross-examination of Croan, it developed that this sum was charged to Respondent not only to repair the door damaged by Ferstl, but also to convert another large door "from standard to hi-lift," that the charges for the work on the two doors were lumped together, and that Croan could not state what part of the bill was attributable to the door damaged by Ferstl.25 (e) Croan was advised about the door accident a few minutes after it occurred but Ferstl was not fired at that time. Instead he was terminated about 2-1/2 hours later, at the same time that Respondent fired Frields and Ancelot. The coincidence of these three discharges at the same time strongly suggests that they were all motivated by the same reasons. As found above Frields was discharged because of his protected, concerted activities in connection with the February 23 meeting with Croan.26 At that same meeting, Ferstl, in the presence of Respondent's Sales Manager Belin , had attempted to dissuade a mechanic from removing his name from the list of employees who had accepted Croan' s ultimatum to terminate their employment if they were dissatisfied. Thus, like the case of Frields and Ancelot, the Respondent had knowledge of Ferstl's "attitude" in respect to the concerted action of its mechanics which had "provoked" Croan. (f) Finally, the uncontroverted and credited testimony of Ferstl discloses that when he was fired, he was told separately by both Shop Foreman Newman and President Croan that the reasons for his termination were twofold -the meeting of February 23 and the accident that morning which "sort of put the icing on the cake." For all the foregoing reasons, I am persuaded and find that Ferstl's role in the protected, concerted activities of Respondent's mechanics on February 23, was a substantial motivating reason, if not the only one, for his discharge on February 25, and that by terminating Ferstl's employment inter alia , for that reason, the Respondent interfered with, restrained , and coerced employees in the exercise of rights guaranteed by the Act, and engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.27 19 N L R.B v Whitin Machine Works, 204 F 2d 883, 885 (C A. 1), Magnolia Petroleum Company v N L R B., 200 F.2d 148, 149 (C.A 5), N L R.B. v WTVJ, Inc., 268 F .2d 346, 347-348 (C A 5), N L R B v J H . Rutter Rex Manufacturing Company, inc., 229 F.2d 816,819 (C.A 5) 20 Respondent fired a porter for causing two similar accidents, but, unlike Volkswagen mechanics , there is no evidence of any shortage of porters in the Houston area 21 Croan explained that because of the rain then falling and poor visibility , there were extenuating circumstances which motivated his decision not to terminate these two mechanics However the great height of the Volkswagen bus which Ferstl was driving, and the boat fastened on top of it , could also be regarded as an extenuating circumstance for the failure of the bus to clear the door 22 According to Croan, it was the Respondent 's policy to discharge employees when they had a second accident When asked, why then Ferstl had not been discharged when he caused damage to the transmission , Croan explained that it was because Ferstl then was a relatively new employee , Respondent "needed mechanics badly," and the incident was 3 weeks old when he learned about it In view of Crown's "explanation," it is fairly evident and found that Respondent has no fixed policy of discharging mechanics after two accidents 23 Contrary to the assertion of Respondent 's counsel at the opening of the hearing that Ferstl had been involved in two accidents in the 2 weeks before his termination, Ferstl's last "accident," the failure to put oil in the transmission , had occurred in October 1965, 4 months earlier Moreover , it is quite evident from the record that when Ferstl was discharged, Croan had no recollection whatsoever of the transmission Incident In this regard, the record shows that when Croan was questioned by Board agents during the investigation of the charges in this case as to his reasons for firing Ferstl, he did not mention the transmission incident at all. 24 Croan had no knowledge when Ferstl was discharged what the repairs would cost Since the cost of such repairs was not a factor in Croan's decision to fire Ferstl the amount of the bill obviously was immaterial to the issue as to what motivated Croan's decision 25 Croan attempted to minimize the cost of the repairs to the door which was not involved in the accident by testifying "The other door, sir, is in another building and its a hinge , we bought two hinges ." However, contrary to Croan's testimony, the bill in respect to the other door shows that the repairman "converted 18' 2" x 8' 1" Model 75 wood door from standard to hi-lift " Obviously , this repair involved more than merely buying two hinges. 26 Ancelot apparently was also discharged for the same reason Seefn 18,supra 21 See cases cited in fn 20, supra. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having further found that the Respondent discriminated against Jesse E. Frields and Robert A. Ferstl by terminating their employment on February 25, 1966, because they engaged in concerted activities protected by the Act, I shall recommend that the Respondent be ordered to offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings they may have suffered by reason of the discrimination by the payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of his reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board .211 I shall also recommend that the Respondent make available to the Board or its agents, upon request, all payroll and other records necessary to facilitate the determination of the amounts due under this recommended remedy. In view of the nature and extent of the unfair labor practices committed, and because discriminatory discharges to to the very heart of the Act,29 the commission of other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from "in any other manner" infringing upon rights guaranteed to employees by Section 7 of the Act, in addition to those rights found to have been violated herein. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Mel Croan Motors, Inc., is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discriminating against Jesse E. Frields and Robert A. Ferstl by terminating their employment because they engaged in concerted activity protected by the Act, and by thereafter failing and refusing to reinstate them, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2" F W Woolworth Company, 90 NLRB 289. Backpay shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & HeattngCo , 138 NLRB 716 2" N L R B v Entwistle Mfg Co ,120 F 2d 532 (C A 4) 30 In the event that this Recommended Order is adopted by the 3. By interrogating employees regarding their protected concerted activities, and by threatening employees with discharge or other reprisals unless they abandon such activities, the Respondent has engaged in and is engaging in further unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Respondent Mel Croan Motors, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee in regard to hire or tenure of employment or any term or condition of employment for engaging in any activity protected by Section 7 of the Act. (b) Coercively interrogating employees regarding their activities protected by Section 7 of the Act. (c) Threatening employees with discharge or other reprisals if they continue to engage in activities protected by the Act. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act, including the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer Jesse E. Frields and Robert A. Ferstl immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them in the manner provided in "The Remedy" section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents all payroll and other records as set forth in "The Remedy" section of this Decision. (c) Notify Jesse E. Frields and Robert A. Ferstl if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post at its premises in Houston, Texas, copies of the attached notice marked "Appendix."30 Copies of said notice, to be furnished by the Regional Director for Region 23, after being duly signed by Respondent, shall be posted 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 23, in Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " CEMENT MASONS' LOCAL 524 609 writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.31 I also recommend that the complaint be dismissed insofar as it alleges that the Respondent violated the Act by conduct other than that found to be violative in this Decision. s' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge or otherwise discriminate against any employee in regard to hire or tenure of employment or any term or condition of employment for engaging in any activity protected by Section 7 of the National Labor Relations Act. WE WILL NOT coercively interrogate our employees regarding their activities protected by Section 7 of the Act, or threaten them with discharge or other reprisals for continuing to engage in such activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act, including their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. WE WILL offer to Jesse E. Frields and Robert A. Ferstl immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them. WE WILL notify Jesse E. Frields and Robert A. Ferstl if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. MEL CROAN MOTORS, INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-0611. Cement Masons' Local Union No. 524, Affiliated with the Operative Plasterers' and Cement Masons' International Association of the United States and Canada , AFL-CIO' and Tobasco Prestressed Concrete Company, Division of Bethel Supply Company2 and United Brotherhood of Carpenters and Joiners of America, Ohio Valley Carpenters District Council, AFL-CIO and The Penker Construction Company. Case 9-CD-91. March 28,1967 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS BROWN , JENKINS , AND ZAGORIA This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , following a charge filed by Tobasco Prestressed Concrete Company , Division of Bethel Supply Company, herein called Tobasco or the Charging Party, alleging that Cement Masons' Local Union No. 524, Operative Plasterers ' and Cement Masons' International Association of the United States and Canada , AFL-CIO, herein called the Respondent or the Masons , had violated Section 8(b)(4)(D) of the Act. Pursuant to notice , a hearing was held before Hearing Officer Michael J. Shershin , on October 26, 27, and 28 , 1966 .3 All parties, including the United Brotherhood of Carpenters and Joiners of America, Ohio Valley Carpenters District Council , AFL-CIO, herein called Carpenters , and the Penker Construction Company , herein called Penker, appeared and had full opportunity to be heard, to examine witnesses , and to adduce evidence bearing upon the issues. The rulings of the Hearing Officer, made at the hearing, are free from prejudicial error and are hereby affirmed. Briefs filed , respectively, in behalf of the Respondent and Tobasco , have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case , the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYERS The record establishes that Tobasco, an Ohio corporation with its principal offices at Tobasco, Ohio , is engaged in business there as a contractor The Respondent's name appears as amended at the hearing 2 The Charging Party's name appears as amended at the hearing. I All dates hereinafter appearing will be in 1966 unless otherwise indicated 163 NLRB No. 75 Copy with citationCopy as parenthetical citation