Neely's Car Clinic

National Labor Relations Board - Board Decisions

May 17, 1979

242 N.L.R.B. 335 (N.L.R.B. 1979)

NEELY'S CAR CLINIC
Neely's Car Clinic and International Association of
Machinists and Aerospace Workers, District Lodge
190, Local Lodge No. 1492 and Willie Ray Dockins.
Cases 20-CA 13973 and 20-CA-14026
May 17, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On February 28, 1979, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, Charging Party Inter-
national Association of Machinists and Aerospace
Workers, District Lodge 190, Local Lodge No. 1492,
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
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, and
conclusions of the Administrative Law Judge, to
modify her recommended remedy,' and adopt her
recommended Order.2
ORDER
Pursuant to Section 10(c)of the National Labor Re-
lations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby
orders that the Respondent, Neely's Car Clinic. Val-
lejo, California, its officers, agents, successors, and as-
signs, shall take the action set forth in the said recom-
mended Order.
I We do not adopt the Administrative Law Judge's recommendation that
the backpay provided for herein include interest at the rate of 9 percent per
annum. Instead, we shall require that the remedial interest rate be computed
in accordance with the formula set forth in Florida Steel Corporation. 231
NLRB 651 (1977), and we hereby amend the Administrative Law Judge's
recommended remedy to this extent.
2 The Union asks that we order Respondent to reimburse it for "all ex-
penses incurred in the Board's proceeding and . . [for] its extraordinary
expenses incurred in litsl negotiations." An award of litigation and other
expenses is appropriate only when a respondent raises patently frivolous
defenses. Tiidee Products, Inc., 194 NLRB 1234 (1972). The defenses here to
the 8(aXl) and (3) allegations are debatable rather than frivolous. In addi-
tion, the Union has neither laid a predicate to support the conclusion that it.
in fact, suffered extraordinary negotiating expenses (Heck's Inc., 191 NLRB
886 (1971)), nor shown a demonstrable nexus between its negotiating ex-
penses and Respondent's unlawful conduct (Tiidee Products, Inc., supra).
Accordingly, we shall not make such an award.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
The hearing in these matters was held before me in Vallejo,
California. on October 24 and 25 and November 7, 1978.
The charge in Case 20-CA-13973 was filed by Interna-
tional Association of Machinists and Aerospace Workers,
District Lodge 190, Local Lodge No. 1492, herein called the
Union, and served on Neely's Car Clinic, herein called Re-
spondent, on July 26. 1978. The charge in Case 20-CA
14026 was filed by Willie Roy Dockins, herein called Dock-
ins, on August 16. 1978. and served on Respondent on Au-
gust 17, 1978. An order consolidating cases and a consoli-
dated complaint which alleges violations of Section 8(a)(1).
(3), and (5) of the National Labor Relations Act, as
amended, herein called the Act, issued on September 7.
1978. The principal issues herein are whether Respondent
solicited and/or encouraged employees to repudiate, and
sought to decertify, the Union; and whether Respondent
discharged employees Willie Roy Dockins and Richard
Jones because they refused to cooperate, or to continue co-
operating. with Respondent's efforts to decertify the Union.
Upon the entire record.' including my observation of the
demeanor of the witnesses, and after due consideration of
briefs filed by the General Counsel and Respondent. I make
the following:
FINDINGS OF FA(I
I. JURISDI(CTION
Respondent. a California corporation with its main of-
fices and a place of business in Vallejo, California, is en-
gaged in the retail and wholesale sale of automobile parts
and services. Respondent, in the course and conduct of its
business operations, during the year preceding the issuance
of the complaint herein, received in excess of $150,000 from
the United States Department of Defense for parts and ser-
vices to Department of Defense vehicles.
Upon the foregoing, I find that Respondent is, and at all
times material herein has been, an employer engaged in
commerce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background 2
Respondent. which is owned and managed by James
Deaver and James Neely, had an employee complement
ranging from 8 to 13 employees in 1978. Respondent and
the Union have been parties to three consecutive collective-
bargaining agreements commencing in 1971.1 The last such
I Errors in the transcript have been noted and corrected.
2 Unless otherwise indicated, the account of the conversations in this sec-
tion comes from the undenied. credited testimony of employees Willie Roy
Dockins and Richard Jones.
I The unit covered by these agreements is: "All mechanics, combina-
tionmen, utilitymen and apprentices employed by Respondent at its Vallejo.
California facility: excluding all other employees, guards and supervisors as
defined in the Act."
242 NLRB No. 69
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement was effective by its terms from June 1, 1975
through May 31, 1978. and provided that unit employees
become and remain members of the Union as a condition of
their continued employment. During the term of this last
agreement, Respondent has sought to avoid compliance
with the union-security provisions of the contract and has
encouraged the employees to repudiate the Union.
Willie Roy Dockins was hired on June 15, 1975. During
that month there was a strike, apparently industrywide. At
that time Deaver told Dockins that Respondent was trying
to go nonunion and Dockins was to keep out of the Union.
To this end, Deavers said. Dockins would be sent out for
coffee whenever the union business representative came
around. In January 1976, Deaver told Dockins that Re-
spondent could no longer keep him out of the Union, that
he would have to join. Deaver further said it was a shame
that Dockins would have to pay $150 to join the Union
because in the near future there would be no union.
Richard Jones was hired in August 1976. According to
his uncontroverted testimony, when he was hired Neely
told him he could not pay him union wages because busi-
ness was slow. Jones inquired as to the cost of joining the
Union. Neely replied that he did not want Jones to join the
Union because in the future Respondent would be going
nonunion. He instructed Jones to hide whenever a union
representative came into the shop.
In late April or early May 1977, during a conversation
between Neely, Jones, Deaver, and Deaver's son, Dan Dea-
ver, Neely asked Jones if he would be willing to continue
working for Respondent if it became a nonunion shop.
Jones said, yes, he did not care one way or the other. Dan
Deaver said that by going nonunion they would be able to
weed out employees they felt were not producing. that it
would be beneficial to everyone to work without a union
pushing the bosses, that without a union they could do
what they wanted and things would run smoother.
In about June 1977, Jones decided to cease hiding from
the union representative, so when Bud Willis came into the
shop, Jones spoke to him. Willis asked if he was a union
member. Jones said no. A few days later Neely told Jones
that Willis had insisted that Jones join the Union. Neely
said Respondent would give him $150 for the initiation fee
if Jones would still go along in the future on the nonunion
thing. Jones said he would, and Neely gave him the money.
Jones joined the Union on about June 15. 1977.
In mid-September 1977. following a visit to Respondent's
shop by Willis, Deaver told Dockins. "See what I have to
go through with people stopping on the job, telling you
what you can do and who you can hire and those sort of
things?" Deaver also remarked that Dockins had been in
business once so he knew what it was like to have someone
come on your job and tell you what you could and could
not do. Deaver further said that he had, or was going to
obtain, a lawyer and Respondent was going nonunion. He
said if Dockins went along with the plan to go nonunion.
Dockins would not have to worry about a job. Deaver said
Respondent was going nonunion and any employee who
did not like it should leave Respondent's employ.
Around the end of November, Jones had a conversation
with Neely and Deaver during which they told him Re-
spondent intended to go nonunion when the collective-bar-
gaining agreement expired. He said it would be beneficial to
those who went along with them, that without a union cer-
tain incompetent employees could be discharged without
interference from the Union. Jones inquired what wages
would be without the Union. Either Neely or Deaver said
wages and future wage increases would be the same as
union wages. Neely or Deaver further said that by discharg-
ing or lowering the wages of the incompetents and/or low
producers, Respondent could increase the wages of Jones
and other employees. Thereafter. in December 1977 and
January 1978, Jones had almost dailv conversations with
Neely regarding Respondent going nonunion.
In about late November or earl)y December 1977. Neely
asked Dockins if he had talked to any of the employees
about overtime pay. Dockins said no. Neely said there was
going to be a meeting that evening regarding overtime pay.
He asked Dockins if he would write a statement to the
effect that he and the other employees did not wish to be
represented by the Union. Neely also mentioned the names
of certain employees whom he thought Dockins should
speak to in this regard.
A few days later Neely asked Dockins if he had spoken
to the other employees about going nonunion and what
response he had received. Dockins said he had talked to
them but they wanted to talk to Willis concerning the pro-
visions of the new contract before they signed a document
to go nonunion. Neely told Dockins to get together with
Richard Jones and try to get as many' employees as he
could to sign such a document.
Deaver did not testify as to these conversations. Neely
testified that during the year preceding the hearing herein
he had discussions with employees regarding Respondent's
union status but that the first such conversation was in late
February or the first of March 1978' with Dockins.
B. The Circumstance.s Surrounding the Petition Repudiating
the Union and the iling of the Decertification Petition
Dockins testified that in mid-January or early February,
Neely asked him if he had prepared the "list" they had
discussed. Neelv said he had spoken to someone from the
"Labor Board," that he wanted Dockins to start on the
"list" immediately because it had to be turned in. Neely
said that employees who did not sign the list would be ter-
minated. Neely also said that the new industry agreement
provided for wages of around $11 an hour. He said if Dock-
ins got the list signed and the)y went nonunion, Respondent
would pay him union wages and hospitalization. Neely said
that with the Union if Dockins were laid off he would not
receive retirement benefits: but that if he got the list signed,
they went nonunion and Dockins were laid off, he could
withdraw his retirement benefits contributions from the re-
tirement fund.
Employee Roger Doss testified that in either January or
February he said something to Deaver about the union con-
tract being up for negotiations in 1978. Deaver said Re-
spondent was seriously considering going nonunion and
that they were trying to come up with a reasonable pro-
gram of benefits similar to union benefits. lie also said they
' All dates hereinafter will be in 1978 unless otherwise indicated.
336
NE.Y'S ( AR C(1INIC
were considering changing from an hour w`age rate to a
flat rate. ater that da. Dealer said the reason the! w\ould
like to get out of the Union was it cost too much and the!
were tired of the Union tr ing to tell them houa the! had to
run their business.
Jones testified that in late F-ebruary or early March. as he
was leaving to road test a vehicle. Neel, said he wanted to
talk to Jones and would accompany him on the road test.
After the road test was completed they parked in a parking
lot adjacent to Respondent's shop. Neel), asked if Jones
would still go along with Respondent and work nonunion.
Jones said es. as long as his wages and ever? thin re-
mained the same. Neelv said it would. Neev said he in-
tended to get the Union decertified through the NI.RB. lie
explained what the NLRB was and asked Jones to talk to
some of the employees about signing a petition tfor an elec-
tion to decertify the Union.
According to Jones. Neely further said that Jones should
explain to the employees that wages would be the same and
benefits would he comparable. Neely also said that the em-
ployees who did not want to work nonunion "would he on
the streets. they wouldn't be working." Neely suggested
which employees he thought would sign the petition and
the ones he thought it would he futile to approach. Neely
further said that he would personally talk to Dockins. Jones
agreed to talk to the other employees, which he did.
According to Jones, around March 22 he asked Neel. in
Deaver's presence, what was being done about going non-
union in accordance with their earlier discussion. Jones said
he wanted to get it done because the union contract would
expire soon and he did not want to be involved in a strike.
be out of work, or lose any money. Neely said he would get
the telephone number for the NLRB so that Jones could
telephone and request decertification forms and all the nec-
essary information. The next day Neel gave Jones the tele-
phone number and told him to request forms and informa-
tion needed to decertify the Union. Later thax day Jones
telephoned the Board's Regional Office and requested the
necessary forms to be sent to him at Respondent's address.
On around March 27. Neely. in Deaver's presence. asked
Jones if he had spoken to the other employees about signing
a petition. Neely said that Jones should draft a handw-ritten
petition stating that "the undersigned no longer wish to be
represented by the Union." have the employees sign it and
date it and write below that something to the effect. "all the
above are presently employed by Neely's Car ('linic."
Neely said time was getting very short and it had to be
done.
Jones then asked Neely if the forms had arrived from the
Board. Neel) said no, that Jones should telephone the
Board again, that the ecertification papers had to be sent
in immediately. Jones telephoned the Board's Regional Of-
fice again on March 27. The necessary forms were delivered
on March 28.
On March 29. in Deaver's presence. Neely told Jones to
get the signatures and complete the NLRB forms. Jones
said he was uninfornied as to legal matters and was liable to
make a mistake. Neel, said he would prepare a draft which
Jones could copy. Neel\ then prepared the draft and told
Jones to secure signatures from four other named emplo!-
ees who had agreed to sign the petition repudiating the
tnioIl. He also named certain eplo ees -hom Jones
should not ask to ign this petition. Neel said lie would
talk to )Dockins.
Jones obtained tfour signatures. inclutding his o, to a
petitionl which tate. s. We. the undlersigned no longer wih
to he represented bh the IA. I&A.\. e preter 11011-unilIoi
status." lie then gave the petition to Necl. told himl eim-
ployee MarN Bruce xx.s not in the hop . nd ince Necl
`aould probabthl see her tirst. Neel should seetie her signa-
lure. Neel tolok the petition and said lie ll.d .lso trI to
obtain Dockins' signature. 1le then gaxe Jones an NI RB
representation petition orm hich he had filled out tor
Jones to cop.
[)ockins testilied that. in late March. Neel, told himi that
sonic ot the employees had signed the list and others had
not. but it Dockins would sign. thce others x ould. lie then
showed Dockins the ptitolln itlh the tour signa tures and
asked Dockins to sign. l)ockins said hc w arntcd to talk to
Willis. Neel said it I)ockins signced the hop would g non-
union. )Dockins said Neel alread had sutficient signatures
without his signature. I)ockins did not sign the petition.
Neely said itf )ockins ecer told an! one that le he ad aslked
l)ockins to sign the petition,. hlie ould s \ear lie had nectcr
seen the petition.
Later that dan Jones asked Neel i l)ockill had sigied.
Neek said Dockins refused to ign but if Bruce signed,
Dockins' signature was not absolutely nccssalr. I. ater m
the daN. when both Bruce and Jones \aere in the tofice,
Jones asked Neel ftor the petition, obtained Bruce's signi-
ture, and returned the petition t Neel.
On April 4 a Board agent requested that Joines gi\e a
statement regarding the signinig if the petition repudiating
the Union. Jones reported this to Neel, and asked hat he
should say. Neely told Jones he would tell him what to say.
The fotllowing day Joines asked Neek it' he had decided
Wh;lt .Ilnies should sa, to tlhe Board aeent. Necl told Joines
to be ure lie did not sa in l\thinLg \which indicated that
Necl and [)ea.er initia;ted the decertitica tion actl\ties.
Neel said Jones Should nlot ldnii t it in\ timetl thet t c
had a n!lhing to do with it or had instructed Jones as 1o
what to sa). Jones asked what he should sa If the Boat d
agent questioned him as toh hot lie knew about the Board.
Neely told him to make up a stor!. anl tllihng except that he
had gotten the information from Neel\.
On April 6. belore he left tfor his appointment it at ile
Board's Regional Office. lonles asked Neelk if there i'.s
anything else hlie should or should not sa' to the Boai d
agent. Neely replied "No. just make daniil ure !ou don't
sa5 nothili about us being inolv ed in it." Necl then gace
D)ockins 10 and sid "llere's sm money to Ipi tbr
bridge tolls. parking and hatever's necessarx while ,o1 .Iic
gone." lie asked i $10 was utficient. and [)ockils sald it
was.
W'hen Neel gc.ie a ,statemellt to the Board accit. hC .aid
he hld filed the deccrtiticaltion petition in ( se 20 RI)
1461 because ihe w as tired of1 helotinm tol unlion thatl did
nothing tfor the emniploy, cs. thlat he wouldl rather work noni-
uniton. anld hle thought tllhe other etmploe (S felt he siIae
wax. lie did nt mentio e tr ren t hehe isoi ti.lt lie hadl tiled
the decertiicaltiol ptition hbecause Ncl hadl requested
hili to do so. \lWhen te 13Bo,1d .igeit inquireld s to h11,
Jones had lear-icd o the N I.RB . oncs gac hilii .i Col-
137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cocted story and did not mention that he had received the
information from Neely.
Iater that da Jones reported to Neely the questions he
had been asked and the answers he had given. Neely said
he would probably talk to his attorney regarding Jones
being questioned by a Board agent.
A day or two later Jones was informed that the decertifi-
cation petition in Case 20 RD- 1461 was being dismissed as
untimely filed. When he reported this to Neely, Neely be-
came incensed and said it should have arrived timely since
he had personally taken the petition to the post office for
mailing. Neely said he would contact his attorney for ad-
vice. Later that day Neely told Jones that Respondent's
attorney, David Coomb. wanted to talk to him. Jones then
talked to Coomb5 on the telephone. According to Jones, he
said, "Mr. Coomb, this is Richard Jones." Coomb said,
"First of all, you and I are not having this conversation. I
will deny it at every opportunity." Jones said okay. Coomb
then asked if Jones had given a statement to the Board
agent. Jones said yes. Coomb asked if he was given a copy
of the statement. Jones said no. Coomb asked if Jones had
sworn to and signed the statement. Jones said yes. Coomb
told Jones to go into the Board's Regional Office and de-
mand a copy' of his statement and a copy of the petition
showing the date-received stamp. Coomb said that if Jones
received no satisfaction from the Board agent he should ask
to see the Assistant Regional Director and raise hell regard-
ing the dismissal of the petition. Coomb said Jones should
make them prove to him that the petition was filed un-
timely, that he should just generally raise hell, get loud, and
make the Board personnel feel that Jones wanted them to
prove that they were justified, that Jones felt they were sid-
ing with the Union rather than the employees, and that
Jones should really push them to prove to him that the date
was untimely. Coomb requested that Jones call him and
report on what occurred.
That same day, a Friday, Jones telephoned the Board
agent and told him he wanted copies of his statement and
the petition. When asked why, Jones said he had a right to
copies. The Board agent said he would mail the documents.
Jones said he would probably come and get them. On the
following Monday, Jones went to the Board, spoke to both
the Board agent and the Assistant Regional Director and,
as Jones described it, proceeded to raise hell, pounded on
the desk and "got louyd like I was supposed to." Jones was
assured that the matter would be thoroughly investigated.
Jones returned to the shop and told Neely that he had
raised hell like he was supposed to and he through it had
worked. Jones then telephoned Coomb and told him, "I got
copies of the statement I made and copies of the petition
with the dates on it and I raised holy hell like you said. I
put on a pretty good show." Coomb laughed and said, "By
God, that sounds all right. I've never met you but you seem
like my kind of guy. I'll look forward to meeting you some-
time." Coomb then asked Jones to send him copies of the
statement and the petition. Jones told him that Neely had
the copies and would send them to Coomb.
About 3 or 4 days later Jones asked Neely what had
Coomb is executive director of Redwood Employers Association, as asso-
ciation which represents several hundred employers in northern California as
to labor relations matters. Respondent is one of the association's clients.
happened as to the alleged untimely filing. Neely replied.
"We got screwed out of this one on account of the date.
There's nothing we can do but wait until after the contract
expires and file one immediately thereafter."
Doss testified that in April or May, during a discussion
among three or four employees with regard to the Union,
Neely told them that when the contract was up Respondent
was going nonunion. Neely further said that if they wanted
to stay there and work they could, but if they wanted to
remain in the Union they would have to find another job.
On May 30, Neely told Jones to prepare another hand-
written petition repudiating the Union, that the timely date
for the petition would be the day after the contract expired
on June I, and he wanted to get the petition started again
so it could be filed as soon as possible, which would be June
1. Neely then named four employees whom Jones should
contact.
Jones prepared another petition repudiating the Union.
He and two other employess signed it on May 30. Jones
returned the petition with the three signatures to Neely and
told him that employee Dave Perez was absent. Neely said,
"Okay, I'll get Dave to sign it." Neely returned the petition
to Jones on the morning of May 31 with an additional sig-
nature. Later that day, when Perez came in, Jones obtained
his signature. Jones had everyone date their signatures June
1.
According to Jones, after Perez signed, Jones told Neely
the petition was complete and placed it in a drawer of
Neely's desk where papers relating to the representation
matter were kept. Jones told Neely he would fill out the
decertification petition form at home and take it into the
Board's Regional Office the next morning. Neely said okay,
and Deaver took $10 from the cash register which he gave
to Jones.
On June 1, Jones filed a decertification petition in Case
20-RC-1478. When he told Neely it had been filed, Neely
replied, "It's great, it's on the way."
About 2 weeks later several employees were discussing
what they perceived as a change in Respondent's attitude
following the filing of the decertification petition. One of
the employees said, "I told you you'd be better off with the
Union." At that point Deaver walked up and said, "What
union. There is no union. The contract expired on the 31st.
There'll be no more union. Those of you who don't like it,
pack your shit and get. I've got a big oil can in the office, I'll
grease up your wheels so your toolbox will roll faster."6
Neely admits preparing a draft of the decertification peti-
tion for Jones to copy. Also, Neely admits that during the
year preceding the hearing herein, he had discussions with
employees regarding Respondent's union status. According
to him, the first such conversation occurred in late Febru-
ary or around the first of March. Dockins initiated this first
conversation. He asked what was coming up on the new
contract. Neely said he did not know, it was too early to
tell. Dockins said with him just returning from vacation and
with his financial problems he could not afford any kind of
a strike or layoff or anything to reduce his income. Dockins
said whatever Neely did or was going to do, he would be
behind Neely 100 percent no matter what, that he had to
6 The account of the above conversations is from the testimony of Jones.
Dockins and Doss.
338
NEELY'S CAR CLINIC
work. Dockins then asked if there was anything he could do
to help avoid a strike or not to be laid off. Neely replied
that as far as he knew the only thing Dockins could do was
possibly contact the National Labor Relations Board for
advice.
Two or three days later, according to Neely, Dockins
again initiated a conversation with him. Dockins said he
was really worried about the possibility of a strike. Neely
said he did not know anything, it was too soon. Neely fur-
ther said that he should not be discussing this with Dockins,
that it just wasn't done in the industry. 7 Neely said Dockins
should contact the National Labor Relations Board if he
wanted to do anything about it.
In the early part of March, according to Neely, Jones
asked him if there would be a strike, that there was some
talk around the shop. Jones said he did not want a strike, he
could not afford one, he could not afford to be laid off.
Jones asked what was going on. Neely replied there was
nothing going on, it was too early, he knew nothing. Neely
further said that Dockins had spoken to him also and, pos-
sibly, if Jones and Dockins got together the two of them
might be able to do something.
As to Jones receiving mail from the Board's Regional
Office at Respondent's address, Neely testified that Jones
informed him that a Board agent had told him he would
probably receive some flack from the Union concerning the
petition and it would be better if he used Respondent's
mailing address and telephone number rather than his
home address and telephone number. He denied that he
suggested to Jones that Respondent's address be used.
Neely also denies that he instructed Jones as to what he
should, or should not, say to the Board agent. According to
Neely, after Jones gave an affidavit to a Board agent he told
Neely that it appeared that the Board, or the Union, or
someone was trying to "rake [Respondent] across the
coals." Jones said he really had been given the third degree
as to how he got involved with the National Labor Rela-
tions Board and specifically as to Dan Deaver's duties.
Jones asked, "Is there somebody out after you?" Neely
said, "I don't know who."
Coomb testified that he did have a telephone conversa-
tion with Jones in late March or early April. According to
Coomb, Jones telephoned him and appeared perturbed or
upset because he had been advised by the Board that there
was some problem as to the timeliness of the petition he
filed and that the petition would be dismissed, if not with-
drawn. Coomb also testified that he has difficulty recalling
the conversation but he does recall asking Jones when he
filed the petition. Jones replied that he had taken the peti-
tion to the Vallejo post office and mailed it. Coomb said
that he felt that the petition should have been timely deliv-
ered and suggested that Jones return to the Regional Office
and advise the Board agent as to the circumstances of the
mailing of the petition.
Coomb further testified that he advised Jones if he failed
to get the matter resolved with the Board agent, he should
ask to speak to a supervisor and, if necessary, to the Assist-
ant Regional Director. Coomb denies that Jones related to
him in any detail the prior conversation he had with the
Board agent. Jones said he had given an affidavit. Coomb
'Nel) testified that he knew it was illegal.
asked if he had received a copy. Jones said no. Coomb said
Jones was entitled to a copy and if he wished Jones could
obtain a copy for his personal use. C(oomb denies that he
told Jones to go to the Board's Regional Office and raise
hell. He denies that he instructed Jones to demand a copy
of his affidavit and to send a copy to Coomb. Coorhb ur-
ther denies that he told Jones he would deny ever talking to
Jones.
Neely admits that he prepared a draft of a representation
petition which Jones filed with the Board. He does not deny
that he mailed the first petition filed bh Jones. Although
Deaver testified, he was not questioned and did not testify
as to any of the conversations set forth above.
On rebuttal Jones denied telling Coomh that he mailed
the petition at the Vallejo Post Office. According to him he
gave the petition to Neely, and Neely told him that he
mailed the petition himself. Neely does not den: this.
I credit Dockins, Jones, and Doss as to the conversations
with Neely and Deaver. They impressed me as honest, reli-
able witnesses. Neely does not specifically deny most of the
conversations. He admits preparing the draft of the decerti-
fication petition and he does not deny that he mailed it.
This conduct is more consistent with his direct involvement
as related by Jones and Dockins than with the "hands off"
attitude which Neely claims he projected. Deaver does not
deny the conversation ascribed to him and. even though he
was alleged to be present at most of the other conversations.
he did not testify in regard thereto. I also credit Jones as to
his conversations with Coomb. As indicated above, I have
found Jones to be a credible witness in other regards and I
find it incredible that he would tell ('oomb that he mailed
the petition at the Vallejo Post Office when it is uncontro-
verted that Neely mailed the petition.
C. The Dockins Discharge
According to Dockins, following his refusal to sign the
petition repudiating the Union, he was constantly harassed
by Neely and Deaver. Certain aspects of his work were
criticized for the first time and he was threatened with dis-
charge if he did not improve. On April 5 he cut his finger
while repairing a vehicle. He continued to work that day
but went to a doctor the following day and on subsequent
occasions. On April 24 his finger appeared infected. so
Dockins went to the doctor after he completed his work
shift. On April 25 he informed Neely that he was scheduled
for surgery on his finger on May . Neel) said okay. On
Friday, April 28, Dockins reminded Neely that he would be
off for several days because of the surgery. Neely said okav.
On May I the doctor told Dockins to return on May 2.
On May 2 the doctor first said he would dress the finger and
send Dockins home. Dockins telephoned Neely and told
him he would report to work later that day. This was earl3
in the morning. About mid-morning the doctor said he had
scheduled Dockins for surgery that morning. Dockins asked
a nurse to telephone Neely and inform him of this develop-
ment. By early afternoon the doctor had again decided
against surgery and told Dockins he was sending him home
for 3 or 4 days. He then gave Dockins a slip stating that he
had received treatment and "mas be able to assume regular
work on 5 4 78."
339
I)I(ISIONS O() NA II()NAL LABOR REL.ATIONS BOARD
I.ate in the day on Wednesday. May 3. I)ockins went to
Respondent's shop to turn in the "no work slip": however,
everyone had ieft early. I)ockins did not return to work on
May 4. On Friday. May 5. Dockins went to the shop at
around 5:30 p.m. and gave Neely the work slip. Neely
looked at the slip and said that he had thought Dockins was
in the hospital but he had not been in the hospital. Instead.
someone had seen him out drinking. lie said he had hired
someone to replace Dockins and if I)ockins wanted to dis-
cuss it he should come in on Monday.
Dockins returned on Monday. Neely gave him his termi-
nation pay and asked him to turn in his uniforms. There
was no discussion of why Dockins did not report to work
on May 4. nor was there any mention of the telephone call
which Deckins requested the nurse to make. I)ockins testi-
fied that he was at home on May 2, 3, and 4 except fir the
two trips he made to Respondent's shop. According to him,
his linger was painful and in a sling during this period.'
Neely testified that on Monday morning, May 1, Dockins
telephoned and said he was trying to get to work but he
would be late. Dockins did not telephone again nor did he
report to work. On Friday, May 5, at about 6 p.m. I)ockins
came into the shop, Neely inquired where he had been.
Dockins said he had been in the hospital. Neely said "All
week?" Dockins said "Yes, you didn't receive a telephone
call?" Neely said, "No." Dockins said, "I told the nurse to
call you." Neely said he had not been notified and inquired
as to the reason for Dockins' hospitalization. Dockins said
it was his finger. Neely asked when he was released. Dock-
ins said that same day. Neely said, "Well, we've got a bit of
a problem here. I didn't know when you were coming back
or anything else. I had work stacking up and I have hired
somebody to replace you." Dockins said, "Hey, Jim. I was
in the hospital." Neely said. "Well, it doesn't really seem
right to me you're in the hospital with your finger, but okay.
I'll tell you what. You bring me proof that you were in the
hospital and that you told a nurse to call me, maybe she
forgot, you've got your job back."
According to Neely. on either the following Monday or
Tuesday, in mid-morning, Dockins came into the shop
dressed in street clothes. When asked. "Did you have a
conversation with Mr. [)ockins," Neely testified, "Not
really. When he came in there really wasn't much said. I
told him I had a check for him, the rest of his vacation pay
he had coming." They then had some discussion as to the
amount of money owed Dockins. After some argument
Dockins agreed that Neely was correct as to the amount
due, and Neely gave Dockins the check. Dockins then left
the premises.
Neely claims that Dockins never showed him the "no-
work slip." He further testified that he hired David Castillo.
an apprentice mechanic, to replace Dockins as Respon-
dent's principal heavy duty mechanic. However, there is no
evidence in the record as to exactly when Castillo was em-
ployed.
I credit Dockins as to these incidents. As indicated
above, I find him to be an honest, reliable witness whose
testimony is credible in other regards. Further, I find
Neely's testimony in this regard to be inherently incredible.
The ahove account of I)ockins' absence from work is from the testiniony
of )ockins.
Neely does not deny that Dockins told him that he was
scheduled for surgery on his finger on Monday, May I, and
would be absent from work for several days. Since surgery
was not ruled out until Tuesday, May 2. 1 find it incredible
that Dockins would call Neely on Monday and tell him he
would report to work later that day. I also find it incredible,
in these circumstances, that on Friday, May 5. Neely would
express surprise and inquire as to the reason for any hospi-
talization. I further find it incredible that Dockins would
not show Neely his medical slip, particularly if, as alleged
by Neely, he told Dockins he could return to work if he
supplied proof of illness. I find this incredible even though
the medical slip indicated that Dockins might resume work
on Thursday, May 4. Neely admits that Respondent's pol-
icy as to time off was liberal' thus there was no reason for
Neely to anticipate that Neely would not accept Dockins'
assessment that his finger was too painful for him to return
to work on May 4. Moreover, Neely does not claim that
Dockins' failure to return to work on the date specified on
the medical slip was a basis for his discharge of, and/or
refusal to reinstate, Dockins.
D. The Jones Discharge
On about June 15, Jones received a telephone call from a
Board agent who asked Jones to sign a Stipulation for Con-
sent Election Agreement. Jones said okay. The Board agent
said he would send Jones the papers to be signed.
Jones was on vacation from June 17 to July 5. When he
returned to work on July 5, Neely told him the Board agent
had been attempting to reach Jones so that the stipulation
could be signed. Neely asked if Jones had called the Board
agent. Jones said he had telephoned two or three times.
Neely told Jones to telephone again and to get the stipula-
tion signed and mailed.
Jones testified that, as a matter of fact, he had not tele-
phoned the Board agent. According to him, he had become
concerned regarding the change in Neely's and Deaver's
attitude following the filing of the June I petition. Accord-
ing to him. Deaver and occasionally Neely were making
almost daily comments to the effect "there's no more union,
if you don't like it, hit the street. I've got this old oil can in
my office and I'll grease the wheels on the toolboxes, so
they can get down the sidewalk faster." Because of this
Jones decided he did not want to go nonunion. However, he
did not wish to be harassed regarding this decision and he
thought that if he said he signed the stipulation Neely
would leave him alone.
Therefore, on July 6, when Neely gave him the stipula-
tion and said it had to he signed and mailed immediately,
he told Neely he would sign it. On Friday, July 7, Neely
asked Jones if he had mailed the stipulation. Jones said yes.
Actually, however, he had not signed and mailed the stipu-
lation.
On the morning of Monday, July 10, as Jones was leav-
9 Neely testified that he has never refused an employee's request for time
off. According to him, Respondent's policy, if an employee is going to be
absent for a day, is for the employee to call and let them know when he will
return. If it is going to be longer than I day, Neely will generally tell the
employee that if there is a possibility of it being another day or wo, to call
the next day so that Neels can schedule the work Neely admits that Dockins
has been off fir extended periods of time n several occasions.
340
NEEIY'S CAR (IN(
ing his home enroute to work, two men accosted him as he
stepped off the porch, one man stood behind him holding
something to the base of Jones' head. The other man stood
in front of Jones and said, "Boy, you're f with
the wrong matters when it comes to this union bullshit. You
had better get your shit together quick." The man stared at
Jones for a second, pushed him back, then turned and
walked off.
According to Jones, he was terrified. He went back into
his house and asked his housemate, Sylvia Harmon. to call
Respondent's shop and tell Neely. Jones would not be in
until further notice, that he was going to get his gun and
hide.
Harmon telephoned the shop in Jones' presence. Accord-
ing to Jones, she said. "Jim, this is Sylvia. I'm caling to tell
you that Rick won't be in. He was just hassled b a couple
of men outside the house over these union or non-union
matters and he's going to get his gun and stay hid a while.
He'll be in a later date." Jones did not go to work that
entire week. According to him, he was so frightened he did
not leave his house that week.
Harmon testified that Deaver answered the phone. She
said hello and identified herself. She then said "I'm calling
for Rick, he won't be in until further notice because he's
been hassled by two men." Deaver said "Okay, fine." Then
Deaver said, "Were those two men from the Union?" Har-
mon said "I don't know. Deaver said, "I'll be damned.
Thanks for calling."
Deaver testified that Harmon called and said Jones
would be late, that two thugs from the Union had come out
and threatened him, and that Jones grabbed his gun and
was on his way to San Francisco. Respondent placed into
evidence a notation which Deaver testified he made on his
appointment pad immediately following this telephone con-
versation. The notation is on a sheet with the printed head-
ing, "Monday." The notation reads:
July 10th 8:05- Sylvia called Said Rick would be
late because 2 thugs from Union came out to threaten
him-he grabbed his gun and went to NLRB--in S.F.
Would be late.
Friday 6 P.m.
July 14th Never heard from Rick all week.
On July II, a Board agent telephoned Jones at home.
Jones inquired as to how the Board agent had obtained his
telephone number. The Board agent said Neely had given
him the number, that he had to contact Jones with regard
to the stipulation. He asked if Jones were going to sign the
stipulation. Jones said, "No, after considerable thought
since the date of filing the petition and harassments that I
had received that no I would not sign the petition at all."
The Board agent asked if he would sign a withdrawal re-
quest. Jones said, "Whatever it takes, I want no more to do
with anything concerning the Union or non-union affairs
anymore."
Subsequently Jones did withdraw the decertification peti-
tion he had filed in Case 20-RD-1478. The withdrawal re-
quest was dated by Jones on July 13 and was approved on
July 21, the date the request was received in the Board's
Regional Office.
On Monday, July 17, Jones returned to the shop pre-
pared to work. Before he could unload his toolbox. Neely
approached him at his car and said. "Don't unload your
tools. I've had to replace you." Jones said, "What in the
hell are you talking about?" Neely said. "Well, you haven't
been here tor a week." Jones said. "You know where I've
been. Sylvia called you and told you I would not be in until
further notice. You know I've been home." Neely said,
"Well, we was busy. We hired a man to replace you al-
read." Jones said:
Bullshit. I don't agree with that. I was off hiding be-
cause of the threat I had. I have been through a lot of
stuff for you over the past year, going along with
everything on this decertification process. I've done
everything you've asked me to do. I have turned some
of the guys in the shop against me for trying to decer-
tify. some of the guys would not talk to me for a while.
I got hassled. I got threatened. The week I was hiding
I lost $400 I cannot afford to lose $400. There is no
other reason I would have been off of work and you
know it. You know I as off. I do not think you're
being fair about this thing. I know ou tired me for not
signing that petition or stipulation. I think you'd better
talk it over with Jim Deaver. You're not being fair.
Neely said he would talk it over with Deaver and Jones
should check back in a couple of hours.
Jones testified that he telephoned Neely at about 10 a.m.
that day and asked if Neely had talked to Deaver. Neelv
said. "Yes, we talked it over. We've decided to keep the new
man. I'm sorry it worked out this way. If we need some-
body in the future, you'll be the first one that I will call."
Jones said thank you and hung up.
Neely testified that on Jul5 10, Deaver told him that Har-
mon had called and said two thugs from the Union had
been at Jones' house pushing him around, roughing him up.
She said that Jones got mad, got a gun, and went down to
the NLRB and should be in later that day. Neely further
testified that he telephoned Jones at home on Monday, July
10, but received no answer. le telephoned again on Tues-
day, July I1, but received no answer. He then telephoned
the Board agent handling the decertification petition and
asked if' he had seen Jones. The Board agent said. "No, we
haven't seen him here, but I am looking for him." Neely
said, "I don't know what to tell you." The Board agent
asked for Jones' telephone number which Neely gave him.
Neely had no further conversation with anyone from the
Board that week, nor did he receive any written communi-
cations from the Board.
According to Neely, when Jones reported to work on
July 10, he asked Jones where he had been. Jones said two
thugs from the Union came to his house, slapped and
pushed him around, and after they left he got his gun and
drove to Salinas to get his brother. Jones further said when
he and his brother returned to his house, he stayed in the
house.
Neely said, "Rick, that doesn't make sense, that isn't
what we were told." Jones said, "Well, I don't know what
you were told." Neely said, "Sylvia called, said that two
thugs from the Union roughed you up, you got made, got a
gun and went down to the NLRB. I called down there and
vou had not been there." Jones said, "No, that isn't what I
told Sylvia to say. I told Sylvia to tell you that I was going
to Salinas to get my brother." Neel, said. "1I didn't hear
341
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
anything like that. Rick, it sounds too farfetched. I don't
buy it, all circumstances considered." Neely then said
something to the effect that they no longer wished Jones to
be there.
According to Neely, the only explanation that Jones gave
as to why he had not subsequently telephoned Respondent
was that he did not make any telephone calls and did not
answer his telephone. Neely admits that Respondent has
not hired a mechanic to replace Jones.
As indicated above, I find Jones to be a credible witness
and I credit his account of these conversations. I also credit
Harmon that she told Deaver, that Jones would not report
to work until further notice and that Deaver gave his as-
sent. I place no particular reliance on Deaver's written no-
tation as to this conversation. There is no evidence to indi-
cate that Deaver regularly made such notes. In fact, I note
that his Monday and Friday notations in this regard were
both made on the Monday appointment sheet which would
seem to indicate that he was not following a regular proce-
dure.
E. The Reopening of the Contract and the Refusal To
Bargain
By letter dated March 10 the Union notified Respondent
of its intention to open the collective-bargaining agreement
for the purpose of negotiating amendments. In May and
June the Union and Respondent met several times to nego-
tiate a new collective-bargaining agreement. On June 29 or
June 30, 1978, Bud Willis, business representative for the
Union, notified Neely that the employees had rejected Re-
spondent's proposal and requested further bargaining to re-
solve the issues. Neely refused, saying there was going to be
an election. There have been no subsequent bargaining ses-
sions or requests for such.
On July 13, Respondent filed a representation petition in
Case 20-RM-2230. The petition was dismissed on Septem-
ber 8, following the issuance of the consolidated complaint
herein.
F. Conclusions
1. The 8(a)(l) and (5) conduct
It is undisputed that during the term of Respondent's last
contract with the Union Neely indicated to certain employ-
ees that upon the expiration of the collective-bargaining
agreement Respondent planned to go nonunion. Then, in
the 4 or 5 months prior to the expiration of the collective-
bargaining agreement, it commenced a course of conduct
designed to encourage the employees to repudiate the
Union. I find this conduct, set forth below, to be violative of
Section 8(a)(1) and (5) of the Act.
(a) Neely's solicitation of Dockins to circulate a petition
repudiating the Union.
(b) Neely's promise of benefits to Dockins if he suc-
ceeded in obtaining the signatures of fellow employees on
such a petition and the employees went nonunion.
(c) Neely's threat to Dockins that employees who did not
sign such a petition would be terminated.
(d) Deaver's statement to Doss that Respondent was se-
riously considering going nonunion and making unilateral
changes in wages and benefits.
(e) Neely's statement to Jones that he intended to get the
Union decertified and his asking Jones to circulate a peti-
tion repudiating the Union.
(f) Neely's threat to Jones to discharge any employee
who did not want to work without union representation.
(g) Neely's request to Jones to file a decertification peti-
tion and his instructions and assistance to Jones in prepar-
ing the March and the June petitions and in securing em-
ployee signatures thereto.
(h) The financial assistance given to Jones to meet the
expenses of going to the Board's Regional Office in connec-
tion with the decertification petition.
(i) Neely's soliciting of Dockins to sign the petition repu-
diating the Union which was being circulated by Jones.
(j) Deaver's statement to employees that there was no
more union and if they did not like it, they could leave.
(k) Neely's statement to employees that Respondent was
going nonunion, that they could remain in Respondent's
employ if they wished, but if they wanted to remain in the
Union they should find another job.
Against the background of the above conduct, Respon-
dent, on June 29 or 30 and continuing to date, has refused
to meet and bargain with the Union. Respondent argues
that it had no obligation to bargain with the Union since a
decertification petition was pending. I find this argument
unpersuasive, a presumption of majority flows from the re-
cently expired contract. Sierra Development Company d/b/a
Club Cal-Neva, 231 NLRB 22 (1971). Such a presumption
can be overcome only upon an affirmative showing that the
Union no longer represents a majority or upon a showing of
a good-faith doubt of majority based on objective consider-
ations. Further, such doubt must be raised in a context free
of unfair labor practice. Such is not the case here. The peti-
tion upon which Respondent relies was filed at Respon-
dent's instigation. The filing of a decertification petition
does not in these circumstances constitute sufficient objec-
tive considerations. Idaho Fresh Pak-lnc., 215 NLRB 676
(1974). Accordingly, I find that Respondent violated Sec-
tion 8(a)(l) and (5) of the Act by refusing to meet and
bargain with the Union as the exclusive collective-bargain-
ing representative of its employees. Columbia Building Ma-
terials, Inc., 239 NLRB 201 1342 (1978); Mqawood Plant of
Grede Plastics, a Division of Grede Foundries, Inc., 235
NLRB 363 (1978). Guerdon Industries, Inc., Armor Mobile
Homes Division, 218 NLRB 658 (1975).
I further find that Respondent violated Section 8(a)(1) of
the Act by the following conduct:
(a) Neely's interrogation of Dockins as to the response of
fellow employees to the idea of repudiating the Union.
(b) Neely's interrogation of Jones as to whether he
would work without union representation.
(c) Neely's interrogation of Jones as to what he stated in
the affidavit he gave to an agent of the National Labor
Relations Board.
(d) Coomb's demand that Jones give him a copy of his
affidavit and that he report back to him as to his conversa-
tions with Board agents.'
10 find that Coomb was an agent of Respondent when he spoke to Jones.
342
NEELY'S CAR CLINIC
2. The discharges
Respondent contends that both Jones and Dockins were
discharged because they did not report to work for an entire
week and, after the first day, did not call in to inform Re-
spondent that they would be absent. The credited evidence
does not support this contention. Thus, when Harmon tele-
phoned Deaver she said Jones had been accosted and
would not be in until further notice. Deaver said okay.
Jones was off work for I week. In view of Respondent's
liberal policy as to time off, I find that Respondent's as-
serted reason for Jones' discharge is pretextual.
As of Monday, July 10, Respondent thought that Jones
was still fronting for its decertification activities. Respon-
dent contends that it continued to think so throughout that
week. I find this incredible. Jones told Neely that he had
signed and mailed the Stipulation for Consent Election
Agreement. Neely admits that he spoke to the Board agent,
who told him he was trying to get in contact with Jones. I
find it incredible that the Board agent did not tell Neely
that he wanted to contact Jones to get the stipulation
signed, inasmuch as there is nothing confidential about the
signing of such a stipulation, and Neely knew that the
Board agent had been attempting to contact Jones for this
reason while Jones was on vacation. Further, I conclude
that Neely learned that Jones had refused to sign the stipu-
lation since Respondent filed a representation petition on
July 13. Heretofore, Respondent had been content to re-
solve the representation status of the Union through the
petition filed by Jones. In all the circumstances, including
the threats to discharge employees who did not repudiate
the Union, the timing of the discharge, and the pretextual
nature of the reason asserted for the discharge, I find that
Jones was discharged in violation of Section 8(a)(1) and (3)
of the Act because of his refusal to continue to cooperate in
Respondent's efforts to decertify the Union.
As to Dockins, I also find the asserted reason for his
discharge to be pretextual. Thus, he told Neely he was
scheduled for surgery on his finger and would not be in to
work for several days the following week. On Tuesday,
when he was first told that surgery would not be performed,
Dockins did call Neely and tell him he would be in to work
later that day. However, later that day when the doctor told
him that surgery was again scheduled, Dockins asked a
nurse to call Neely to inform him of this. I do not credit
Neely that the nurse did not call. When Dockins spoke to
Neely the following Friday, Neely said he thought Dockins
was in the hospital but had learned he was out drinking. If
he had not received the telephone call, there would have
been no reason for Neely to think that Dockins was hospi-
talized. Neely makes no contention that a consideration in
Dockins' discharge was the fact that Dockins did not return
to work on Thursday, May 4, nor did he mention this to
Dockins. Actually, in view of Respondent's liberal policy as
to time off, I find it unlikely that Respondent would have
been concerned in this regard. Accordingly, I find that Re-
spondent's asserted reason for Dockins' discharge was pre-
textual. In all the circumstances, including Dockins' refusal
to circulate and sign the petition repudiating the Union, the
threat to discharge employees who did not repudiate the
Union, Respondent's propensity to carry out this threat as
shown by Jones' discharge, and the pretextual nature of the
reason asserted for the discharge, I find that Dockins was
discharged in violation of Section 8(a)(1) and (3) of the Act
because he refused to cooperate in Respondent's efforts to
decertify the Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All mechanics, combinationmen, utilitymen, and ap-
prentices employed by Respondent at its Vallejo, Califor-
nia, facility; excluding all other employees, guards, and su-
pervisors as defined in the Act, constitute a unit appropriate
for purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein, the Union has been, and
is now, the exclusive representative of the employees in the
aforesaid appropriate unit for purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By refusing to continue to meet and negotiate with the
Union concerning a collective-bargaining agreement to suc-
ceed the one which expired on May 31, 1978; by offering
employees benefits in order to encourage them to abandon
the Union: by seeking to encourage employees to abandon
the Union; by telling them it is going nonunion and/or that
it will initiate proceedings to decertify the Union; by solic-
iting employees to repudiate the Union and to solicit other
employees to repudiate the Union; by soliciting an em-
ployee to file a petition to decertify the Union and assisting
in such filing; and by threatening to discharge employees
who refused to repudiate the Union or did not want to work
without union representation, Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act.
6. By discharging employees Willie Roy Dockins and
Richard Jones because they refused to cooperate, or to con-
tinue to cooperate, with Respondent's efforts to decertify
the Union, Respondent has violated Section 8(a)(1) and (3)
of the Act.
7. By interrogating employees as to their union sympa-
thies and those of fellow employees; by interrogating an
employee as to what he told an agent of the National Labor
Relations Board; and by demanding that an employee fur-
nish it with a copy of his affidavit given to an agent of the
National Labor Relations Board, Respondent has violated
Section 8(a)(l) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discharged Willie Roy
Dockins on May 5, 1978, and Richard Jones on July 17,
1978, in violation of Section 8(aX) and (3) of the Act, I
shall recommend that Respondent offer each of them im-
mediate and full reinstatement to his former position or, if
that position no longer exists, to a substantially equivalent
343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position, without prejudice to his seniority or other rights
and privileges: and make each of them whole for any loss of
pay suffered by reason of the discrimination against him
with interest thereon to be computed in the manner pre-
scribed in F W. Woolworth Conlpn.v, 90 NLRB 289 (1958).
The General Counsel seeks a remedial interest rate of 9
percent per annum on the moneys for which Respondent is
liable for the violations involved herein, arguing that recent
financial events warrant a reconsideration of Florida Steel
Corporation, 231 NL.RB 651 (1977). In that case the Board
overruled its longstanding policy of a 6 percent remedial
interest rate' and linked its remedial interest rate to the rate
charged or paid by the Internal Revenue Service on the
underpayment or overpayment of Federal taxes. The thrust
of the General Counsel's argument is that in accordance
with this formula the Board's current rate is 6 percent. a
figure substantially lower than that which must be paid by
the typical employee who suffers monetary loss as a result
of unfair labor practices. Thus, it is argued. current Board
orders do not operate to make employees whole and that a
remedial interest rate of 9 percent will more realistically
compensate the victims of unfair labor practices, will assist
in the attainment of settlement agreements, and will help to
prevent unfair labor practices.
I find this argument persuasive and, accordingly. I rec-
ommend that the backpay and other monetary remedies
provided for herein shall include interest at the rate of 9
percent per annum.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER'2
The Respondent, Neely's Car Clinic, Vallejo, California.
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to meet and negotiate with the Union con-
cerning a collective-bargaining agreement to succeed the
one which expired on May 31, 1978; offering employees
benefits in order to encourage them to abandon the Union:
seeking to encourage employees to abandon the Union by
telling them it is going nonunion and/or that it will initiate
proceedings to decertify the Union; soliciting employees to
repudiate the Union and to solicit other employees to repu-
diate the Union; soliciting employees to file a petition to
decertify the Union and assisting in such filing; and threat-
ening to discharge employees who refuse to repudiate the
Union or do not want to work without union representa-
tion.
(b) Discharging employees because they refused to coop-
erate, or to continue to cooperate, with its efforts to decer-
tify the Union.
(c) Interrogating employees as to their union sympathies
and those of fellow employees; interrogating employees as
' Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall he deemed
waived for all purposes.
to what they told an agent of the National Labor Relations
Board; and demanding that employees furnish it with cop-
ies of their affidavits given to an agent of the National La-
bor Relations Board.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of the employees in the appro-
priate unit regarding wages, hours, and other terms and
conditions of employment and embody in a signed agree-
ment any understanding reached. The appropriate unit is:
All mechanics, combinationmen, utilitymen. and ap-
prentices employed by Respondent at its Vallejo. Cali-
fornia, facility; excluding all other employees, guards
and supervisors as defined in the Act.
(b) Offer Willie Roy Dockins and Richard Jones each
immediate and full reinstatement to his former position or,
if that position no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or other
rights and privileges.
(c) Make Willie Roy Dockins and Richard Jones each
whole for any loss of pay he may have suffered by reason of
the discrimination against him in the manner set forth in
the section herein entitled "The Remedy."
(d) Preserve and, upon reasonable request, make avail-
able to the Board and its agents, for examination and copy-
ing, all payroll records and reports, and all other records
required to ascertain the amounts, if any, of any backpay
due under the terms of this recommended Order.
(e) Post at its place of business in Vallejo, California,
copies of the attached notice marked "Appendix A."" Cop-
ies of said notice, on forms provided by the Regional Direc-
tor for Region 20. after being duly signed by its authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
'~ 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 t.abor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order f the National
Lahor Relations Board."
APPENDIX A
NorictI ro EMPILOYFES
PosTED) BY ORDER OF1 tH
NATIO()NAL LABOR REFATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
344
NEELY'S CAR CLINIC
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and we intend to
carry out the Order of the Board.
The Act gives all employees these rights:
To engage in self-organization
to form, join, or help unions
To bargain as a group through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any and all of these things.
Wt. WItLL NOT do anything that interferes with. re-
strains, or coerces you with respect to these rights.
More specifically,
WE wUl.l NOT refuse to bargain collectively in good
faith with International Association of Machinists and
Aerospace Workers, District Lodge 190. Local Lodge
No. 1492, as the exclusive bargaining representative of
our employees. The appropriate unit is:
All mechanics, combinationmen, utilitymen, and ap-
prentices employed at our Vallejo, California, facil-
ity; excluding all other employees, guards and super-
visors as defined in the Act.
WE WI.LL NOT offer our employees benefits in order
to encourage them to abandon the Union.
WE WIL. NOT seek to encourage our employees to
abandon the Union by telling them we are going non-
union and/or that we wil initiate proceedings to decer-
tify the Union.
WE WILL NOT solicit employees to repudiate the
Union and to solicit fellow employees to repudiate the
Union.
WE WILL NOI solicit employees to file a petition to
decertify the Union or assist them in such filing.
WE ViL.t. NOT threaten to discharge employees who
refuse to repudiate the Union or do not want to work
without union representation.
WE: ' l.I. NOI discharge employees because they re-
fuse to cooperate. or to continue to cooperate, with our
efforts to decertify the Union.
WE WIILL NOT interrogate employees as to their
union sympathies and those of fellow employees.
WE VVILL NOT interrogate employees as to informa-
tion they give to agents of the National Labor Rela-
tions Board.
WE WILL NOT demand that employees furnish to us
copies of their affidavits given to an agent of the Na-
tional Labor Relations Board.
WE WILL NOT in any other manner interfere with.
restrain, or coerce you in the exercise of any of your
rights set forth above which are guaranteed by the Na-
tional Labor Relations Act.
WE wii.t. offer Willie Roy Dockins and Richard
Jones reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other rights
and privileges.
WE WILL make Willie Roy Dockins and Richard
Jones whole for any loss of earnings they may have
suffered by reason of the discrimination against them.
NEEI.Y'S CAR CLINIC
345