Service Garage, Inc.

National Labor Relations Board - Board Decisions

Feb 7, 1980

247 N.L.R.B. 943 (N.L.R.B. 1980)

SERVICE GARAGE. INC.
Service Garage, Inc. and Highway & Local Motor
Freight Employees, Local 667, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America. Case
26-CA-7575
February 7, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On June 29, 1979, Administrative Law Judge Elias
C. Rodriguez issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings,' findings,2 and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
1. The complaint alleges that Respondent threat-
ened its employees with the loss of a pay increase in
violation of Section 8(a)(l) and refused to grant its
employees a scheduled pay raise in violation of Section
8(a)(3) and (1). The Administrative Law Judge dis-
missed these allegations of the complaint on the
grounds that there was no evidence that Respondent
had an established policy or practice of granting
across-the-board pay increases, that the General
Counsel failed to establish that Respondent harbored
union animus, and that Respondent could have
lawfully deferred a pay increase for the duration of the
union organizing campaign. The General Counsel
excepts. We find merit in the General Counsel's
exceptions.
In the latter part of December 1978, a union
organizing campaign began at Respondent's facility
and all 12 of Respondent's employees signed union
authorization cards. By letter dated December 29,
1978, the Union demanded recognition as the exclu-
sive collective-bargaining representative. The record
I We agree with the Administrative Law Judge's ruling that Manager
Scott's remark to employee Holt during a luncheon conversation did not
constitute unlawful interrogation in violation of Sec. 8(a) I) of the Act. Unlike
the Administrative Law Judge, however, we do not rely on the standard set
forth in J. J. Newberry Co., Inc. v. N.L.R.B. 442 F.2d 897 (2d Cir. 1971).
Instead, we rely on the principles expressed in Hanes Hosiery. Inc., 219 NLRB
338 (1975), and cases cited therein.
I The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us that
247 NLRB No. 115
reveals that Manager Jon L. Scott had full authority to
manage Respondent's facility, to hire and fire employ-
ees, to establish pay and other policies, and to grant
wage increases in such amounts as he saw fit. It is
undisputed that in the first week of January 1979,'
shortly after the Union's demand for recognition, a
conversation concerning a 7-percent across-the-board
increase occurred between Scott and employee Holt in
the presence of several employees. Scott testified that
before the end of the year there had been talk among
the employees about a 7-percent increase to be granted
in January. He stated that in the first week in January
an employee said something to Holt about not getting
a 7-percent raise and Holt answered, "I told you, you
could forget that when you started the union." Scott
further stated that when an employee asked Scott
whether Holt's statement was correct, Scott answered,
"yes, I guess so." Holt, however, testified that Scott
said, "We were supposed to get a seven percent raise,
but you're not now, on account of this Union."
Thus, Scott either stated that the 7-percent increase
would not be forthcoming because of the employees'
union activities or he affirmed Holt's statement to that
effect. Under either version of the conversation, his
conduct clearly conveyed the message to employees
that their union activity prevented them from receiv-
ing an increase that otherwise would have been
granted to them. In this connection, the question
concerning Respondent's past practice regarding wage
increases is immaterial. Scott, who would determine
whether to grant the increase, at the very least
acknowledged that a 7-percent increase would have
been granted had the employees not become involved
with the Union. Thus, regardless of his past practice,
Scott clearly indicated to employees that he aban-
doned his intention to give them a 7-percent increase
because of their union activities. The Board has long
held that "an employer confronted with a union
organizing campaign should decide the question of
granting or withholding benefits as he would if the
Union were not in the picture; if his course of action in
granting or withholding benefits is promoted by the
Union's presence, he violated the Act."'
the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544
(1950), enfd. 138 F.2d (3d Cir. 1957). We have carefully examined the record
and find no basis for reversing his findings.
'All dates are in 1979. unless otherwise indicated.
' The May Department Stores Company d/b/la Famous-Barr Co.. 174
NLRB 770. 771 (1969).
It is clear from Scott's statement that Respondent would not have granted
the wage increase had it been aware at the time of its decision that the Union
had commenced an organizing drive among its employees. We therefore
conclude that the decision to grant the increases antedated the Union's
organizing campaign.
943
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Equally immaterial is the issue concerning the
lawfulness of deferring any increases until after the
union election.5 Scott asserted that his remark to Holt
was based on his belief that no increases could be
granted until after the election. However, in his
remarks to the employees, Scott did not link the denial
of the increase with the pending election, or make any
suggestion to them that the increase was merely being
deferred until after the election. In fact, neither Scott
nor Holt made any reference to the election. Conse-
quently, Respondent's defense cannot stand."
Accordingly, we find that Respondent's statement
that employees would lose the 7-percent increase
because of their union activities violated Section
8(a)(1) of the Act. We further find that Respondent
denied its employees a 7-percent wage increase be-
cause of their union activities in violation of Section
8(a)(3) and (1) of the Act. In this regard, we find no
merit in the Administrative Law Judge's conclusion
that there is no evidence of union animus. 7 It is
difficult to imagine more direct evidence of animus
than Respondent's bald statement that the employees
would not receive an anticipated increase because they
engaged in union activity. Indeed, Respondent's con-
duct speaks for itself and is in need of no further
evidence to warrant an inference of unlawful motiva-
tion.
2. Respondent laid off employee Johnny Woods on
January 9, approximately 1 week after it received the
Union's letter demanding recognition and notice that
the Union had petitioned for a representation election.
The Administrative Law Judge found no evidence of
unlawful motivation for the layoff and, therefore,
dismissed the complaint allegation that this action
constituted a violation of Section 8(a)(3) and (1) of the
Act. The General Counsel excepts to this finding,
arguing that the timing of the layoff and the lack of
economic support for it warrants the conclusion that
Respondent violated Section 8(a)(3) and (1) by laying
off Woods. We find merit in the General Counsel's
exception.
Respondent's president, Clifton G. Hollis, testified
that the primary purpose of Service Garage, Inc.
(hereinafter Service), was to maintain and repair the
vehicles of four other companies in which he and his
partner, J. W. Bell, were controlling shareholders.
' Accordingly, we place no reliance whatsoever on the Administrative Law
Judge's discussion of this issue.
'Baker Manufacturing Co., Inc.. 218 NLRB 1295, 1309 (1975).
His conclusion relies, in part, upon the fact that most employees on
leaving the courtroom during the hearing stopped by Respondent's table and
displayed "an air of friendly familiarity and camaraderie." This is an
impermissible reliance on conduct which is not on the record. In addition, it is
well settled that the lawfilness of an employer's conduct does not turn on
whether a particular employee feels that the conduct complained of has
interfered with, restrained, or coerced him in the exercise of his statutory
rights. American Freightways Co.. Inc., 124 NLRB 146 (1959); El Rancho
Market. 235 NLRB 468 (1979). In this connection, the Administrative Law
Judge's comment that it was not possible to infer "a deep concern by the
Service, however, also performed similar work for
outside businesses. Hollis further testified that Service
had a limited workspace and that, when the volume of
business increased, Hollis and Bell decided to reduce
or terminate service for outside customers to insure
that their own companies received proper service.
Scott testified that at Hollis' instruction he informed
outside companies that service would be phased out at
the end of December 1978 or in early January. He
stated that Respondent was trying to cut back as
quickly as possible due to the workload and the
cramped space. Scott said that some cutting back of
outside work began in late December 1978 and that he
therefore decided to lay off Woods, who had the
classification of tireman. Woods was laid off on
January 9.
On January 17 Woods was recalled. Scott testified
that while there had been a slack in business when
Woods was laid off, business had increased shortly
thereafter, and he decided that Woods was needed.
Scott further testified that tire work usually came up
at the "spur of the moment" and was performed as
needed. Employee Jesse Stitts, a mechanic, testified
that tire work did not slacken after Woods' layoff, and
that during Woods' layoff Stitts' main work was fixing
tires. Leadman Charles Ray Holt testified that, after
Woods was laid off, he had to pull Stitts away from
mechanic work to do tire work and that they were so
overrun with tire work that Hall Tire Service had to
be called in to fix flats.
On the basis of the foregoing, the General Counsel
argues that Respondent's contention that Woods was
laid off because of a reduction in business is not
supported by the record and that the inference is,
therefore, justified that Respondent's real motive for
the layoff was unlawful. The Administrative Law
Judge rejected this argument, asserting that "The issue
here is not the amount of tire work, but whether-
even assuming that Scott's decision on the tire work
was flagrantly deficient-it can be inferred that
Woods' lay-off was union motivated." He went on to
find no evidence of unlawful motivation on the
grounds that Woods did not testify that he had been
laid off because of his union activities,' that there was
no evidence of union animus on the part of Respon-
dent, and that Woods was not a union activist. We
Charging Party over Respondent's action" is equally inappropriate. The
Charging Party's feelings are simply not a relevant consideration in the
resolution of the matters at issue herein.
' The General Counsel contends that the effect of the Administrative Law
Judge's reasoning in this matter is to require Woods to draw a legal
conclusion regarding his layoff. We agree. Witnesses normally may not testify
to matters outside their personal knowledge, nor may they testify in the form
of opinions unless the opinions are based on the perception of the witness. (See
Federal Rules of Evidence, Rule 602, "Lack of Personal Knowledge" and
Rule 701, "Opinion Testimony by Lay Witnesses.") Had Woods testified that
he had been laid off for union activity, he would have expressed an opinion
about the lawfulness of his layoff which would be outside his personal
knowledge and not based on his perception.
944
SERVICE GARAGE, INC.
disagree with the Administrative Law Judge's formu-
lation and resolution of the issue regarding the layoff
of Woods.
It is undisputed that Respondent, through Scott,
had knowledge that all its employees had signed union
authorization cards. The week after Respondent re-
ceived the Union's letter of demand and its petition for
a Board-conducted election, Respondent told the
employees that the 7-percent wage increase would be
denied because of the advent of the Union and such
increase was, in fact, denied. Shortly thereafter,
Respondent laid off Woods. These factors-Respon-
dent's hostility to unionization expressed in its state-
ment explaining the denial, and the actual denial, of
an anticipated wage increase and the timing of its
layoff of Woods-are indicative of discriminatory
motivation for Woods' layoff.' The issue, therefore, is
whether Respondent's defense of business necessity is
sufficient to overcome the inference of unlawful
motivation. For the reasons stated below, we find that
this defense is not supported by the record, and this
false claim, therefore, further justifies the inference
that Respondent's layoff of Woods was the result of
unlawful considerations.
Respondent's explanation of Woods' layoff suffers
from internal inconsistencies. Both Scott and Hollis
testified that the increase in Respondent's total volume
of business resulted in insufficient workspace and a
work volume that was too heavy to allow for the
proper maintenance of the vehicles owned by the
Hollis-Bell companies. Thus, the purpose of cutting
back outside business was to insure that the work for
the Hollis-Bell companies could be done promptly in
less cramped conditions. Stated another way, the
cutback was to restore business to a normal level for
the current employee complement. The business ne-
cessity of the cutback, therefore, did not derive from a
loss of business outside of Respondent's control; it
derived, rather, from a decision totally within Respon-
dent's control that it could not adequately accommo-
date recent gains of outside business and did not desire
to expand its operation in order to do so.
Consequently, there is nothing to indicate that the
anticipated cutback of outside business would reduce
the workload below the normal level for the current
employee complement. Further, as Scott testified, tire
work was sporadic. Of all the types of work done by
Respondent, tire work appears to be the least suscepti-
ble to prediction. Yet Respondent chose to lay off a
tireman at a time when it had just begun to cut back
business. It is hardly surprising that Respondent had
to put a mechanic on tire work and call in a tire
service directly after laying off Woods. Such a result
'See e.g., W. T. Grant Company. d/b/oa Grant City. 210 NLRB 622 (1974);
N.L.R.B. v. Owernite Transportation Co.. 308 F.2d 284 (4th Cir. 1962).
'" Sharruck-Denn Mining Corp (Iron King Branch) v. N.L.R.B.. 362 F.2d
466. 470 (9th Cir. 1966).
could easily have been expected given the fact that the
employee complement was overworked at the time the
decision to cut back business was made. While
Respondent may have had a legitimate need to cut
back business, reliance on this need as an explanation
for the layoff of Woods does not withstand scrutiny.
Accordingly, we are not persuaded by Respondent's
explanation for the layoff of Woods and find that it
does not overcome the inference of unlawful motiva-
tion raised by the timing of the layoff in connection
with Respondent's unlawful statement concerning the
reason for the denial of the anticipated wage increases
and actual denial of such wage increases.
We further find that the inference of unlawful
motivation is additionally supported by the fact that
Respondent failed to sustain its claim of legitimate
motivation. For, where the reasons advanced are false
or unpersuasive, it may be reasonably inferred that the
real motive "is one that the employer desires to
conceal-an unlawful motive-at least where . . . the
surrounding facts tend to reinforce that inference.""'
We find that the surrounding facts in the instant case
point to Respondent's desire to chill unionization as
the true reason for its layoff of Woods. Respondent's
animus is demonstrated by its statement explaining its
decision to deny, and its actual denial, of an across-
the-board wage increase only a few days after the
Union's demand for recognition and filing of a
representation petition. The layoff of Woods, immedi-
ately thereafter, coupled with the failure to establish
lawful reasons for the layoff, compels the conclusion
that Respondent's action toward Woods was but
another measure taken to discourage the employees'
continued support for the Union by putting them in
fear for their jobs. That Woods was not a union
activist in no way disturbs this conclusion. Respon-
dent employed only 12 employees and knew that each
of them had signed union authorization cards. The
layoff or discharge of any one of these employees in
connection with union activity could be expected to
have a chilling effect on the activity of the remaining
employees in such a small unit."
3. Respondent's asserted justification for the dis-
charge of William Perry is equally unpersuasive. Perry
was discharged on January 9, the same day that
Woods was laid off. Respondent alleges that Perry was
discharged because his work was not satisfactory. The
Administrative Law Judge found no evidence of
unlawful motivation and dismissed the allegation that
Perry was discharged in violation of Section 8(a)(3)
and (1). The General Counsel contends that Respon-
dent's claim as to Perry's unsatisfactory work is
pretextual. We agree.
" See Computed Time Corporation. 228 NLRB 1243, 1248, fn. 28 (1977);
Rea Trucking Company, Inc.. 176 NLRB 520, 525. fn. 5 (1969).
945
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scott testified that Perry was a hard worker, but
that he decided to terminate Perry because he made
negligent, careless mistakes. Scott pointed to three
errors made by Perry: leaving a loose part inside a
transmission which ultimately caused the transmission
case to break; not properly tightening some bolts on a
clutch linkage which necessiated a second clutch
repair: and backing a customer's van into another
vehicle causing damage to the back doors and glasses
of the van. With respect to the last incident, Scott
testified that he was concerned with the facts that
Perry attributed the wreck to bad brakes and had
nevertheless driven the van approximately 8 miles
back to the garage after the wreck. He stated that he
made the following remarks to Perry: "Well, how can
you figure on driving a truck back eight miles when
you've had an accident because the brakes failed? I
said, 'That doesn't make good sense to me. I said
something, I think, like that, and that was all." Scott
further testified that he never issued written warnings
to anyone, and that his practice was to discuss
privately with employees any mistakes they made. He
said that he had conducted such discussions with
Perry, but had never told Perry that he would be
terminated if the mistakes continued.
Perry stated that he was employed by Respondent
on October 24, 1978, as a mechanic. He testified that
in late November 1978 he rebuilt only the top shaft of
a transmission at Scott's instruction and that a loose
piece of metal at the bottom of the transmission
caused the transmission case to crack. Perry stated
that in early December 1978 he put in half of a new
clutch linkage and half of an old linkage at Scott's
instruction. He said that one of the bolts on the old
half was stripped, and that, when he mentioned this to
Scott, Scott told him to just tighten it as much as
possible. Perry stated that in about 2 days the clutch
linkage came undone and a whole new linkage was put
in. Scott neither affirmed nor denied Perry's explana-
tion of these errors.
Perry further stated that in the latter part of
December 1978 he backed a customer's van into
another vehicle because the brakes on the van failed.
He said that when Scott checked the brakes, he told
Perry they were bad and that Perry should not worry
about the accident because the company had insur-
ance to cover it.
The Administrative Law Judge concluded from the
foregoing that Perry was dismissed for his perfor-
mance and not for any ulterior motive. He emphasized
the facts that Perry did not testify that he was
discharged for union reasons'" and that Perry was not
" For the reasons stated in our discussion of the layoff of Johnny Woods.
we reject the Administrative Law Judge's reasoning in this matter.
" While it is true that Perry's accident with a van does not come within the
a union activist. We disagree with the Administrative
Law Judge's conclusion.
The errors cited by Scott as reason for Perry's
discharge occurred in late November and December
1978. Scott concedes that at the time the errors were
made he did not express serious dissatisfaction with
Perry's work or inform Perry that the errors could
warrant his discharge. Instead, Scott merely discussed
the problems with Perry, and told him not to let them
happen again. Further, Scott stated that many mis-
takes involving poor workmanship were being made
by other employees during the same period in which
Perry's errors occurred. There is no indication that
Perry's mistakes were very different from those of
other employees.' Yet Perry was discharged. Perry's
last error occurred in late December 1978, but he was
not discharged until January 9, the day of Johnny
Woods' layoff.
Scott's concedely mild response to Perry's errors at
the time they were made, the failure to discipline or
discharge other employees for similar errors, and the
timing of Perry's discharge, which came shortly after
the Union's demand for recognition and coincided
with the unlawful layoff of Johnny Woods, are factors
which weigh heavily against Respondent's assertion
that Perry's discharge was for unsatisfactory perfor-
mance. Indeed, these factors persuade us that Respon-
dent's discharge of Perry was of a piece with its layoff
of Woods and was designed to demonstrate Respon-
dent's power over the employees' working conditions
in order to discourage them from further support for
the Union. As was the case with Woods, there is no
significance in the fact that Perry was not a union
activist. The selection of any of the 12 unit employees
for discharge in connection with the union campaign
could be expected to discourage the employees from
continuing to support the Union. In this regard, the
layoff of Woods and the discharge of Perry are
intertwined such that the reasons supporting the
finding that Woods was unlawfully laid off equally
support the finding that Perry was unlawfully dis-
charged, and vice versa.
Accordingly, we find that Respondent violated
Section 8(a)(3) and () of the Act by discharging
William Perry on January 9.
4. The Administrative Law Judge found that on or
about January 28, Director of Safety and Personnel
Graham King invited Perry to return to work and that
Perry filled out a job application but did not return to
work because he found a better job. The Administra-
tive Law Judge concluded that the complaint allega-
tion that Respondent continues to fail and refuse to
reinstate Perry was, therefore, without merit. The
category of bad workmanship, Scott's stated concern was not that Perry had
an accident but that he subsequently drove the van back to the garage
thinking that it had bad brakes.
946
SERVICE GARAGE, INC.
General Counsel contends that Respondent never
offered reinstatement to Perry. We agree with the
General Counsel.
Graham King testified that he took a job applica-
tion from Perry and told him that he would consider
him for the position of maintenance man. King further
stated that he did not consider Perry for his former
position as a class B mechanic and that he never
actually offered Perry any employment. Perry testified
that King asked him if he would like to return to
work, gave him an application, told him that he would
have to take a lie detector test, and said that he would
start as a new employee. Under either King's or
Perry's version," it is apparent that, while Respondent
entertained an application from Perry, it made no
offer to reinstate Perry to his former job without
prejudice to his seniority or other rights and privileges.
We therefore find that Respondent continues to fail
and refuse to reinstate William Perry.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, we shall order that it cease
and desist therefrom" and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent denied its employees
a 7-percent across-the-board wage increase, we shall
order that Respondent make whole each employee for
his loss of earnings attributable to Respondent's
discrimination against him by paying each employee
the difference between his actual wages and the wages
he would have received had he not been denied the 7-
percent wage increase on or about the first week of
January 1979, plus interest thereon to be computed in
the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).'"
Having further found that Respondent discrimi-
nated in regard to the hire and tenure of William
Perry by discharging him on or about January 9, we
shall order Respondent to reinstate him to his former
position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to
his seniority or other rights and privileges previously
enjoyed, discharging, if necessary, anyone who may
have been hired to perform the work he had been
performing prior to the time he was terminated on
January 9. Further, we shall order that Respondent
make Perry whole for any loss of earnings he may
have suffered by reason of his unlawful termination.
" Although not critical to our resolutions of this issue, we note that the
Administrative Law Judge failed to make any credibility resolutions as is his
responsibility when faced with conflicting testimony on a material issue.
" We have considered this case in light of the standards set forth in
HIickmott Foods. Inc., 242 NLRB 1357 (1979), and have concluded that a
broad remedial order is inappropriate inasmuch as it has not been shown that
Additionally, we shall order that Respondent make
Johnny Woods whole for any loss of earnings he may
have suffered by reason of his unlawful layoff from
January 9 to 17. Backpay is to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon to be comput-
ed in the manner prescribed in Florida Steel Corpora-
tion,. supra .
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Highway & Local Motor Freight Employees,
Local 667, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
3. By informing employees that an anticipated 7-
percent wage increase was denied because of their
union activity, Respondent has engaged in an unfair
labor practice within the meaning of Section 8(a)(1) of
the Act.
4. By denying employees an anticipated 7-percent
wage increase, by discharging William Perry on
January 9, and by laying off Johnny Woods from
January 9 to 17, all for the purpose of discouraging
employees from supporting the Union, Respondent
has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
6. Respondent has not violated the Act in any other
manner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Service Garage, Inc., Memphis, Tennessee, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Informing employees that their wage increases
were denied because of their support for the Union.
(b) Denying wage increases to employees because of
their support for the Union.
Respondent has a proclivity to violate the Act or has engaged in such
egregious or widespread misconduct as to demonstrate a general disregard for
the employees' fundamental statutory rights. Accordingly, we shall include in
our order the narrow injunctive language, "in any like or related manner."
'^ See. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
7Id.
947
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Laying off, discharging, or otherwise discrimi-
nating against employees to discourage their support
for the Union.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the purposes of the Act:
(a) Make whole those employees who were denied a
7-percent wage increase on or about the first week of
January 1979 by paying to each of the employees the
difference between his actual wages and the wages he
would have received absent the unlawful discrimina-
tion against him, plus interest thereon, in the manner
set forth in the section of this Dccision entitled "The
Remedy."
(b) Offer William Perry immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privi-
leges previously enjoyed, discharging, if necessary,
employees who may have been hired to perform the
work he had performed prior to the time he was
terminated, and make him whole for any loss of
earnings he may have suffered as a result of the
discrimination practiced against him, in the manner
set forth in the section of this Decision entitled "The
Remedy."
(c) Make whole Johnny Woods, who was laid off
from January 9 to January 17, 1979, for any loss of
earnings he may have suffered as a result of the
discrimination against him, in the manner set forth in
the section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its Memphis, Tennessee, facility copies of
the attached notice marked "Appendix."" Copies of
the notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's authorized representative, shall be post-
ed by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that in all respects the
complaint be, and it hereby is, dismissed.
'" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities
except to the extent that the employees' bar-
gaining representative and employer have a
collective-bargaining agreement which imposes
a lawful requirement that employees become
union members.
In recognition of these rights, we hereby notify
our employees that:
WE WILL NOT inform employees that a wage
increase was denied because of their support for
the Union.
WE WILL NOT deny wage increases to employ-
ees because of their support for the Union.
WE WILL NOT lay off, discharge, or otherwise
discriminate against our employees to discourage
their support for the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL make whole those employees who
were denied a 7-percent wage increase on or
about the first week of January 1979, by paying to
each of the employees the difference between his
actual wages and the wages he would have
received absent the unlawful discrimination
against him, plus interest.
WE WILL offer immediate and full reinstat-
ment to William Perry to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority and
other rights and privileges previously enjoyed,
discharging, if necessary, anyone who may have
948
SERVICE GARAGE, INC.
been hired to perform the work he performed
prior to the time he was terminated, and WE
WILL make him whole for any loss of earnings he
may have suffered as a result of our discrimina-
tion against him.
WE WILL make whole Johnny Woods who was
laid off from January 9 to January 17, 1979, for
any loss of earnings he may have suffered as a
result of our discrimination against him.
SERVICE GARAGE, INC.
DECISION
STATEMENT OF THE CASE
ELIAS C. RODRIGUEZ, Administrative Law Judge: This
case was heard in Memphis, Tennessee, on May 2 and 3,
1979, pursuant to a charge filed on January 10, 1979, by the
Highway & Local Motor Freight Employees, Local 667,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein
referred to as the Charging Party or the Union,' and to a
complaint which was issued on February 15, 1979, by the
Regional Director for Region 26. The complaint alleges that
Service Garage, Inc., herein referred to as Respondent,2
engaged in certain unfair labor practices affecting commerce
in violation of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended. Respondent's answer of Febru-
ary 22, 1979, and its amended and restated answer to the
complaint of March 22, 1979 denied commission of the
alleged unfair labor practices. Subsequent to the hearing,
briefs were to be filed by May 28, 1979, and, a motion for an
extension of time having been granted, briefs were filed on
behalf of the General Counsel and on behalf of Respondent
on June I I, 1979. The case is now ready for decision.
Issues
A. Whether Respondent violated Section 8(a)(1) of the
Act by interfering with, restraining, or coercing its employ-
ees in the exercise of the rights guaranteed them in Section 7
of the Act.
B. Whether Respondent violated Section 8(a)(3) of the
Act by discriminating in regard to the hire or tenure or
terms or conditions of employment of its employees, thereby
discouraging membership in a labor organization, and
thereby engaging in unfair labor practices affecting com-
merce as defined in Section 2(6) and (7) of the Act.
Upon the entire record of this case and my observation of
the witnesses and their demeanor, I make the following:
' At the hearing on May 2. Duria Jones, union organizer and the Charging
Party in this case, entered a formal appearance for the record.
I At the hearing, on May 2, Clifton G. Hollis, president of Respondent,
entered a formal appearance for the record.
' Scott's first name, spelled Jon through most of the transcript of hearing
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a Tennessee
corporation, has been engaged in the business of repairing
and maintaining motor vehicles in its place of business at
318 Winchester Avenue, Memphis, Tennessee. During the
12 months preceding issuance of the complaint, a representa-
tive period, Respondent purchased goods from firms which
in turn purchased those goods outside the State of Tennes-
see. The value of the goods exceeded $50,000. During the
same period of time, Respondent, in the course and conduct
of its business operations, received gross revenues in excess
of $500,000.
The complaint alleges, the amended and restated answer
admits and I hereby find that Respondent has been at all
times material herein an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the amended and restated answer
admits and I hereby find that the Highway & Local Motor
Freight Employees, Local 667, affiliated with the Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, has been, at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent began its incorporated life as Service Garage,
Inc., on January 1, 1978, with Clifton G. Hollis, president of
Respondent, and J. W. Bell, secretary and treasurer of
Respondent, said to be partners in the business and its sole
shareholders. The stated purpose of Respondent was primar-
ily to maintain and repair the motor vehicles of four other
business entities-namely, Bell Cartage Company, Patterson
Cartage Company, Service Distribution Company, and
Patterson Warehouses-in which Hollis and Bell were also
the controlling shareholders. In addition, Respondent also
sought from its inception to develop and perform, as
"outside" business, similar repair and maintenance services
for companies other than the aforementioned Hollis-Bell
family of companies.
Jon Lance Scott' was hired as manager of Respondent in
September 1977, at which time it was performing essentially
the same vehicular service business as an unincorporated
company. He served in that capacity until January 23, 1979,
when he was relieved of his responsibilities at Respondent by
Hollis. While he was manager, Scott was given and exercised
full authority to manage Respondent's business, to hire and
fire employees as needed, to establish pay and other policies,
and to carry out the stipulated service for the Hollis-Bell
companies, as well as to develop outside business. He was
and in the exhibits introduced into the record, is given as John in
Respondent's post-hearing brief I consider this discrepancy to be of no
material significance. Indeed. given the nature and purpose of this proceeding,
no further note will be made, nor inferences drawn, from discrepancies in the
spelling of names-including my own.
949
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid a weekly salary, which increased during his period of
service, and also received a percentage of the net operating
profits of Respondent. Inasmuch as the primary purpose of
Respondent was to serve and be complementary to the
Hollis-Bell companies, the labor rate for the inside work was
at or near cost and the incentive percentage of profits for
Scott was principally to be derived from the outside business.
The complaint alleges, the amended answer admits, and I
hereby find that Clifton G. Hollis and Jon L. Scott were, at
all times pertinent herein, agents of Respondent and supervi-
sors within the meaning of Section 2(11) of the Act.
The physical facility of Respondent has limited work-
space, and, when the service needs of the controlled
companies increased in volume, the space limitation prompt-
ed Hollis and Bell-sometime during the latter part of
October 1978-to decide to reduce or terminate Respon-
dent's service for outside customers. Scott, acting on Hollis'
instructions, proceeded to inform the outside businesses that
service for them would be phased out at the end of
December 1978 or early in January 1979. Subsequently,
sometime during the first or second week of January, he
tendered his resignation to Hollis, indicating he would leave
his job at the end of the week of January 26. It could be
inferred from the circumstances described above, and was
indeed suggested by Hollis in the course of his testimony,
that Scott's leaving was provoked in part by the loss of
anticipated earnings resulting from the elimination of out-
side business.
When Hollis received information on January 23 that
Scott intended to leave to begin his own service business and
intended to take with him a number of the current
employees of Respondent, he relieved Scott of his responsi-
bilities. Hollis then met with the employees to seek to form a
new work organization and proceeded to hire Robert
Thomason as the new manager. Scott in fact did leave to
take a similar position at Robertson's Truck Service and
Sales, and some of Respondent's other employees, e.g.,
Charles Ray Holt, Jesse Stitts, and Bobby Lawrence, also
went to work for Robertson's.
Concurrently with these developments, a number of union
and other activities took place at Respondent's Garage
which related to the allegations of the complaint. During the
second or third week in December 1978, discussions on
organizing a union at Respondent were initiated, and
apparently all the employees of Respondent signed union
cards. By letter dated December 29, 1978, to Hollis, the
president of Local 667 demanded recognition of the Union
for collective-bargaining purposes.' On or about January 9,
1979, Scott laid off Johnny Woods and fired William Perry.'
On January 10, 1979, the Union filed a charge before the
National Labor Relations Board against Respondent, alleg-
ing that the discharge of employees William A. Perry and
Johnny Woods on January 9 was "because of their member-
ship in and activities on behalf of Teamster Local 667, a
labor organization, and since such time has refused, and
continues to refuse, to employ said employees."" By letter of
'G.C. Exh. 2.
'Hollis testified that he and Scott met with Respondent's attorney prior to
discharging Perry and Woods and were informed that those terminations
could properly be made if for a valid business reason despite the pendency of
the union election.
'G.C. Exh. I(a).
January 10, 1979, the Regional Director served a copy of the
union charge on Respondent.' On January 29, 1979, the
Regional Director wrote to attorney for Respondent, in-
forming him that he had on that date "approved with
prejudice withdrawal of the petition" for representation of
Local 667, and canceling the election that had been
scheduled for February 9, 1979.' As stated above, the formal
complaint and notice of hearing instituting this case was
then issued on February 15, 1979.
The events and developments described in this back-
ground section were not disputed in the record of this case,
and are consistent with the testimony of the various
witnesses in this proceeding.
B. Specific Allegations of Unfair Labor Practices
As defined in the complaint and amended answer in this
case, and as further set forth in the briefs filed on behalf of
the General Counsel and Respondent, the specific allega-
tions of unfair labor practices here involved are as follows:
(a) Respondent, by its supervisor and agent, Jon Lance
Scott, on or about the last of December 1978 and the first of
January 1979 interrogated and threatened its employees
concerning their union membership activities in violation of
Section 8(a)(l) of the Act.
(b) Respondent, by its supervisor and agent, Jon Lance
Scott, on or about January 1, 1979, threatened its employees
with loss of a pay increase because of its employees' union
activities and refused to grant its employees a scheduled pay
increase in violation of Section 8(a)(1) and (3) of the Act.
(c) Respondent violated Section 8(a)(1) and (3) of the Act
by laying off employee Johnny Woods from January 9-17,
1979, for union-related activities.
(d) Respondent violated Section 8(a)(1) and (3) of the Act
by discharging employee William A. Perry on or about
January 9, 1979, and failing or refusing to reinstate said
employee because of union-related activities.
These allegations will be analyzed below in light of the
testimony of the witnesses, the exhibits introduced into the
record, and the briefs presented by the parties.
IV. ANAL.YSIS AND CONCLUSIONS
A. Allegation of Interrogation
Although the allegation of interrogation in the complaint
was broadly worded to contend that Scott had interrogated
Respondent's "employees" on two different occasions, the
testimony brought forth at the hearing substantially nar-
rowed this charge.' Seven of the employees of Respondent
were called as witnesses at the hearing, namely, Johnny
Woods, Jesse Stitts, William A. Perry, Charles Ray Holt,
Bobby Lawrence, Alvin Maple, and Bobby Farmer; the
record bears out that none of the seven claimed in his
testimony that he was interrogated by Scott about union
activities. Only one William A. Perry, testified that he had
' G.C. Exh. I(b).
'G.C. Exh. 14.
' The original charge of January 10, 1979, filed by the Union, as presented
in G.C. Exh. I(a), made no mention whatsoever of interrogation, and thus
adds no further detail to this allegation.
950
SERVICE GARAGE, INC.
heard Scott "ask Ray [Charles Ray Holt] who all signed
union cards, and Ray told him everybody did." The
testimony of Scott and Holt does not support Perry's
statement, but, rather, tends to contradict it. Both Scott and
Holt testified that they had one conversation that might be
construed as involving interrogation, and that was at a
different time and place. There is no other corroboration
that the question by Scott testified to by Perry took place.
Taking into consideration the interference of normal shop
noises, Perry's preoccupation with other matters described
below, the likely perception of Perry that this was something
that Scott might have asked, and the vagaries of memory,
Perry's testimony in this respect cannot be given great
weight. Indeed, it is significant that the General Counsel's
brief, in discussing the interrogation allegation, makes no
mention of Perry's statement.
Thus, the allegation of interrogation appears to hang
purely on a luncheon conversation between Scott and Holt,
said to have taken place during the last week in December
1978. The brief on behalf of the General Counsel, in
discussing the interrogation issue, speaks only of that
luncheon conversation. That conversation therefore merits
close attention.
Concerning that conversation, Scott testified on direct
examination when counsel for the General Counsel was
presenting her case as follows:
A. We was out eating lunch one day-And may I say
one thing for my statement, that I had talked to
Kenneth Baylor on earlier? I didn't remember saying
anything when we went out to eat one day at noon, and
I said later in my statement that Ray had come in my
office and talked to me about the union activities. But it
was there, after talking to Ray about it, and reviewing
it.
Q. Okay. You and Mr. Holt were at lunch?
A. Yes, that's correct.
Q. Did you ask him to go to lunch?
A. I invited him. We had gone before. Yes, that's
correct.
Q. Now, did you make a statement while the two of
you were at lunch, that you heard that there was some
organizing going on?
A. No. I didn't make any statement at all.
Q. You didn't respond at all to Mr. Holt's statement
about who had signed cards?
A. He volunteered the information. I didn't ask him
anything. He just told me there was something he
needed to talk to me about, or felt that he should, and
he said something about it, and I said, "Well, I didn't
know"- had heard some rumors before.'"
In comparison, Holt's testimony of that luncheon conver-
sation was as follows:
"' Mr. Scott reaffirmed this testimony when he was subsequently recalled as
a witness by Respondent's attorney. During that second examination, the
following pertinent exchange also took place:
Q. In December of 1978. and in January of 1979, were you aware that
the National Labor Relations Act makes it an unlawful labor practice for
an employer to interfere by the use of interrogation or threats, or
intimidation, to employees. with the rights of the employees to join a
Q. Mr. Holt, did you ever have any conversations
with Mr. Scott about the Union?
A. Yes, ma'am.
Q. Do you recall when was the first time you had a
conversation with Mr. Scott?
A. I believe it was the last week of December.
Q. Where were you at the time?
A. At a fish place on Airways. I forget the name of it.
It's a fish place.
MR. WELLDORD: A restaurant?
THE WITNESS: Yes.
Q. (by Ms. Druitt) Was it just Mr. Scott and
yourself?
A. Yes, ma'am.
Q. Would you please tell us what was said during
that conversation?
A. John said he had heard-that there-said there
were rumors of a union, going around, and I told him,
Yes, that all the men had filed-signed cards for a
union.
Q. Was anything else said?
A. No, ma'am. Not that I can recall.
Q. Now, did you ever have any other conversations
with Mr. Scott, after that one, about the Union?
A. I don't really understand what you mean? That
day, or what?
Q. No, anytime after that, did you have any conver-
sations with Mr. Scott about the union? That you can
recall?
A. No, ma'am.
These are the two versions of the conversation between
Scott and Holt on which the allegation of interrogation rests.
Even accepting the version of employee Holt rather than
that of Supervisor Scott-although there really is not much
conflict between them-this is an extremely thin basis for
pressing a charge of improper, threatening, or coercive
interrogation.
The Board's determinations on interrogation, as reviewed
by the courts, have consistently taken a much more
reasonable and rational view of what constitutes unlawful or
objectionable interrogation. The word "union" is not consid-
ered a taboo, whose very mention in a question calls for
reprimand and sanction. The Act does not demand that
relations between employers and employees be stilted and
aloof. It is well to recall the affirmation given by the Second
Circuit Court of Appeals in J. J. Newberry Co., Inc. v.
N.L.R.B., 442 F.2d 897 (2d Cir. 1971), to its position taken
on interrogation in 1964 in Bonnie Bourne, an individual
d/bla Bourne Co., 332 F.2d 47 (2d Cir. 1964). The court
stated at 901:
[w]e held that interrogation, not itself threatening, is
not an unfair labor practice unless "fairly severe
standards" are met, including:
union, to engage in union activities, or to bargain through a union of their
own choice? Were you aware of those rights of employees?
A. Yes. sir, I'm aware of it.
Q. Did you violate the law in respect to those rights of any employees
out there?
A. Not knowingly, I did not.
Q. Do you know of any employee who claimed to you that you had?
A. No. sir, I did not.
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(1) The background, i.e., is there a history of
employee hostility and discrimination?
"(2) The nature of the information sought, e.g., did
the interrogator appear to be seeking information on
which to base taking action against individual employ-
ees?
"(3) The identity of the questioner, i.e., how high was
he in the company hierarchy?
"(4) Place and method of interrogation, e.g., was
employee called from work to the boss's office? Was
there an atmosphere of'unnatural formality'?
"(5) Truthfulness of the reply. [A truthful reply
supports the inference that the interrogation did not
inspire fear.]"
The luncheon conversation in the present case fails to
come close to meeting any of these standards. Viewed
against these judicial pronouncements and considering the
personal and lengthy relationship of Scott and Holt, who
fished and hunted together, and who left Respondent
together to continue the same working relationship at
Robertson's Truck Service and Sales, I can only conclude
that the charge of unlawful interrogation in the present case
is totally without foundation.
B. Allegation of Refusal To Grant Pay Increase
This allegation, as set forth in the complaint and in the
Brief on behalf of the General Counsel, is to the effect that
Respondent violated Section 8(a)(1) and (3) of the Act by
refusing to grant its employees a scheduled pay raise, and
that Respondent took this action because its employees
joined or assisted the Union or engaged in other union
activities or concerted activities for the purpose of collective
bargaining or other mutual aid or protection." Clearly then,
a conclusion that this allegation is valid must rest upon a
finding that an across-the-board pay raise for all the
employees had indeed been scheduled and promised by
Respondent, and that it was withheld and refused in
retribution for the employees' union activities.
In its amended answer, Respondent categorically denies
this allegation. In the closing statement for Respondent and
in Respondent's post-hearing brief, this allegation was
countered with three basic arguments: (I) that there was no
established company policy or practice of granting general
pay increases, but rather that Respondent, and supervisor
Scott acting for Respondent, followed a consistent policy of
individual merit increases; (2) that with a union election
pending it would have been unlawful for Respondent to have
granted a pay increase and that, put affirmatively, it was
lawful for Respondent to suspend any wage increases during
the Union's organizational campaign; and (3) that there was
no showing of union animus or motivation in Respondent's
action regarding pay raises so as to make of it an unfair labor
practice. The allegation on the pay raise will be examined in
light of these three defenses.
It would appear that the surest way to determine whether
Respondent had an established policy or practice of granting
regular periodic across-the-board pay increases would be to
" As is true with the allegation of interrogation, the original charge, as set
forth in G. C. Exh. I(a) makes no mention of a pay raise, and thus provides no
additional insight into this contention.
examine the Company's pay records. Although Respondent
states that its pay records were subpenaed by the General
Counsel," they were not offered for inclusion in the record.
The two documents involving pay introduced into the record
by the General Counsel" contain only selected data and
indicate only that four of six employees working for
Respondent in January 1977 received pay raises of disparate
amounts and percentages on January 19, 1977. That January
1977 pay raise cannot be considered across-the-board nor
uniform. Those two documents do not indicate that a
general pay increase, or even one affecting a majority of the
employees, was ever given in 1978.
The testimony on this issue of Hollis and Scott, the two
employer supervisors questioned, strongly asserted that the
Company had no policy or practice of general pay increases.
Hollis testified that there was no policy of cost-of-living or
annual across-the-board pay raises adopted and promulgated
by the Company among its employees. Scott testified that he,
as the supervisor, had no policy of granting general wage
increases on a specific date, that Hollis had not imposed any
mandatory or required wage policy on him affecting employ-
ees, and that he granted wage raises strictly on individual
merit. The exhibits that were introduced into the record
support this testimony.
Among the employees who appeared as witnesses, the two
whose testimony most strongly suggested an anticipation of
a general pay increase were Perry and Holt. Perry testified
that he had been told that he would receive a cost-of-living
raise. However, he related in his testimony that he had been
told this by Holt, his fellow employee, and not by Scott, the
supervisor. Holt testified that, when he was hired by Billy
Norwood, Scott's predecessor, as manager Respondent, he
personally was promised an annual cost-of-living raise the
first of every January. He also stated that Scott had
mentioned a 7-percent cost-of-living raise. However, on
cross-examination, Holt affirmed that he had heard about
the 7 percent increase on the radio and TV and that
President's guidelines on inflation.
The feeling or anticipation of some of the employees that
they had been promised or would receive a pay raise-cost-
of-living or otherwise--in January 1979 is further discussed
below. However, from the testimony presented and the
exhibits introduced into the record, it must be concluded
that Respondent in fact did not have a policy or practice of
granting annual or periodic, general, across-the-board pay
increases.
Notwithstanding that, it nonetheless appeared at the
hearing that the employees generally were speaking about
and expecting to get a pay raise in January 1979. Scott
testified that there was talk about a 7-percent pay increase,
but that he did not know where it had come from or where
the figures came from. Holt testified that he had not been
actually promised a 7-percent increase by anybody. How-
ever, the record shows that a conversation between Scott and
Resp. Br., p. 10.
G. C. Exhs. II and 12.
952
SERVICE GARAGE. INC.
Holt regarding the pay increase took place around the first
week in January." Since this conversation may shed some
light on how such an increase was perceived by supervisor
and employees, it needs to be closely examined.
Holt testified that in that conversation Scott "said we
were supposed to get a 7-percent raise, but 'You're not now,
on account of this Union'." Perry testified that "Ray [Holt]
asked him [Scott] if we were going to get our cost-of-living
raise, and he said 'No, because of union activitiies, ya'll will
not get one'." Scott, on being questioned by Respondent's
attorney as to this conversation, read into the record, at
counsel's request, a portion of his prehearing statement to
the Board investigator. That exchange went as follows:
"Q. (by Mr. Wellford) Mr. Scott, you were asked to
read into the record a part of your statement given to
the Board agent at the time this case was investigated,
and you were permitted to read only a part of the
statement relating to this matter of the so-called cost-of-
living increase discussion.
I would like to have you, if you will, read the entire
statement starting at the bottom of page 5, and
continuing through the page 6, until you run out of that
subject matter. (Handing.)
A. Okay. "I recall prior to the first of the year, Holt
saying something about a 7-percent raise. I do not recall
the specifics of the comment. Then sometime after the
first of the year, I was standing by the timeclock, or
thereabouts, and there were a group of employees
standing in the same general area. There is a repair
order rack by the clock, and I often inspected it to see
over a job load-"
Q. (Interposing) Is that "over," or "our?"
A. "Over see"-Yeah, "Our, our job load."
Q. All right. That writing is not in your handwriting.
That is written by the Board agent?
A. That's correct. I recall an employee saying
something to Holt about them not getting a 7-percent
raise. Holt then said words to the effect that there
would not be a 7-percent raise, and "I told you, you
could forget that when you started the union"-and
that's Holt's words saying that, not mine.
And then Holt, or someone said something like "Is
that right" to me, I then said "yes. I guess so," or words
to that effect and walked away.
I said what I said because I was under the under-
standing that there could not be any raises during a
union organization campaign, and I know this type of
thing because I was a union member years ago, around
'61, '62, and '63, at Continental Baking Company.
Scott went on to testify that he and Hollis had met with
Wellford, Respondent's attorney, on January 8 and had been
advised that the Company's pay levels for its employees had
to be maintained at the status quo during a union organizing
campaign." When asked specifically if he or Holt had made
" Perry testified that that conversation, which he had overheard. took place
about January 6.
' It should be noted that if the Scott-Holt conversation took place on
January 6 and the meeting with Respondents attorney was on January 8.
Scott's statement during the conversation with Holt was made without the
henefit of counsel's advice on wage levels during union campaigns. However,
the dates could be wrong, or Scott, as he testified. may have known of the
inhibition from prior union activity.
the statement that the employees would not get a wage
increase because of the pending union election, Scott
answered, "Ray Holt made the statement." When further
asked if he would have made that statement, Scott answered,
"No, I knew better than to make a statement like that."
Clearly, a contradiction exists between Scott's version and
Holt's version as to who said that because of the current
union campaign a pay increase would not be made. How-
ever, in view of the basic issue to be resolved, whether
Respondent wrongfully withheld a pay increase because of
union activities, does it really matter whether Holt or Scott
made the statement? Even under Scott's version, he ac-
knowledges that he affirmed Holt's statement by saying,
"Yes, I guess so." So the real question this brings us to is
whether Respondent was justified in deferring any pay
increases, scheduled or not, after being informed by the
Regional Director that a union election had been sched-
uled.'"
In his closing statement, Respondent's attorney took the
position that, if the wage increase that was supposedly
withheld had been granted, Respondent would have been
charged with an unfair labor practice. In Respondent's post
hearing brief, this position was more fully developed to
maintain that the granting of wage increases during a union
organizational campaign is unlawful, and, conversely, that it
is lawful for an employer to suspend wage increases during
an organizational campaign." Counsel for the General
Counsel, in her response at the close of the hearing, did not
address the question of the lawfulness of a wage increase
during a union campaign, but did assert the view that the
employees "felt they were entitled to a wage increase, and
they should have received it." This legal issue was not
mentioned in any way in the brief filed on behalf of the
General Counsel.
However, the legal quandary of whether to grant or to
defer wage increases during the pendency of a union election
cannot be avoided or ignored. Neither this Administrative
Law Judge nor, surely, the General Counsel's office would
wish to sanction an employer for not having taken an action
that the Board has held to be a violation of the Act. And this
is clearly not an area that the Board and the courts have left
untouched.
In Colonial Haven Nursing Home, Inc., '" the Board ruled
on circumstances similar in some respects to those confront-
ing Respondent in January 1979. There, the Board, overrul-
ing an Administrative Law Judge's conclusions that "the
timing of the wage increases and statements about the Union
do not warrant an inference that the wage increases were
given to discourage unionism," found that "[u]nder these
circumstances, we believe that the timing of the 25-cent raise
and the unusual size of that pay increase was enough to
make out a prima facie case of interference."'" The Board
went on to say that the respondent, on granting such an
increase, would have then had the burden to establish that
the substantial increase was consistent with prior practice
'" It should be noted that nothing in the testimony of the witnesses
supported the allegation in par. 8 of the complaint that Respondent
"threatened" its employees with loss of a pay increase.
"Resp. Br. pp 10-13.
' 218 NLRB 1007 (1975).
'Id. at 1008.
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and "to explain the unusual coincidence of the timing of the
increase granted here." ' Could Respondent have established
that a 7-percent, across-the-board, cost-of-living increase
was consistent with its past pay policy and practice? The
record here rejects such a notion. What would have
happened if, after granting its workforce a 7-percent wage
increase, Respondent's employees would have a gleefully
torn up their union cards? It is not unlikely that another,
and perhaps a more serious charge, would have followed?
Unquestionably, employers in these circumstances are
placed in a difficult dilemma, and the courts on review have
not failed to be sensitive to the Hobson's choice thrust on the
employer. In an earlier case in 1967,2' the Board had found
that Dorn's Transportation Company had violated Section
8(a)() in suspending a wage increase during a union
organizational campaign. The Second Circuit Court of
Appeals denied enforcement of, and reversed, the Board's
Order.2 Its reasoning, as later reiterated in the Newberry
case supra was that "the Board's holding placed the
employer in a 'damned if you do, damned if you don't
position. The court suggested that a violation could only be
found where the employer was illegally motivated rather than
acting in a good faith effort to conform to the reuirements of
the law. "' (Emphasis supplied.) This court of appeal focus
on the motivation of the employer brings us to the third of
Respondent's defenses to this allegation; namely, the ques-
tion of whether the record here manifests that there was
union animus or hostility on the part of Respondent so as to
warrant ascribing an unlawful motive to its pay-raise action.
The complaint, as set forth above, alleged that Respon-
dent took the pay-raise action in question because of the
employees' union activities. At the hearing, however, none of
the seven employees presented as witnesses made any
general or specific declarations that Respondent was antiun-
ion or that there had been a history of anti-union measures.
Nor did the demeanor of the employee witnesses suggest a
prevalent fear of management or of resentment against
Respondent's union outlook. Most of the employee wit-
nesses, on leaving the court-room during the hearing, would
stop by Respondent's table in passing and would exchange a
word or a gesture with Hollis with an air of friendly
familiarity and comaraderie. There is not one statement by
the employee witnesses that can be pointed to as revealing a
sense of ongoing antiunion feeling on the part of Respon-
dent.
In further support of this perception, the testimony of
Respondent's president, Hollis, and of Respondent's manag-
er, Scott, strongly suggests that there was no such union
animus. Scott specifically testified that he didnot care
whether there would be a union or not; his only concern was
whether the organizational talk and activity would interfere
with the work. Scott testified that he had been a member of a
union himself in a previous job. Hollis testified more
extensively on this. He testified that the other four compa-
" d.
:' Dorn's Transportation Company, Inc.. 168 NLRB 457 (1967).
* 405 F.2d 706 (1969).
'442 F.2d at 900.
' Thomason's name is spelled Thompson in parts of the transcript.
However, judging from the exhibits (see G.C. Exh. 3 and I) Thomason and
Thompson were one and the same.
' G.C. Exh. I(a).
nies in which he had a controlling interest were all
unionized. He testified that to his knowledge there had never
been any charges of unfair labor practices brought against
any of those companies. Hollis specifically testified that he
had never given Scott any instructions on hiring or firing on
grounds of union activities. When specifically questioned if
he had asked his manager whether he knew of any union
activities after Hollis received the letter from the union
president, Hollis replied, "I can't say that I did. I wasn't
particularly concerned about it, or upset about it."
There is one further disclosure on the record that reflects
on Hollis' union outlook. The two employees who had been
identified as the "ringleaders" acting to bring in the Union
were Bob Thompson and Alvin Maple. Yet, when Scott left
Respondent to go to another employer, the persons Hollis
selected to run the shop were Bob Thomason 24 and Alvin
Maple. Does such an action reflect union animus? It is my
conclusion that the burden of establishing union animus has
not been met.
Considering the history and testimony on Respondent's
wage policy and practice, the Board's pronouncements, the
judicial precedents on the granting or suspending of pay
increases during the pendency of a union organizational
campaign, and the lack of proof that Respondent harbored
and displayed union animus, I conclude that the allegation
that Respondent refused to grant a scheduled pay increase
because of antiunion motivation has in no way been
established.
C. Layoff of Johnny Woods
The complaint alleged that Respondent had violated the
Act in laying off its employee, Johnny Woods, from January
9-17, 1979, because he had joined or assisted the Union or
engaged in other union activities. Although the discharge of
Woods was one of the two specific items included in the
original charge,' Woods did not testify at any point during
his questioning that he had been laid off because he had
signed a union card or because of union activities. He did not
testify that he had been told that by any person, whether by
management or by a fellow employee, and there was no
indication that he thought, felt, or inferred that his discharge
was due to union activities."
Scott, Respondent's manager, testified that Woods, who
had been working for Respondent as a tire-man, was laid off
because it was anticipated that the reduction of outside
business would lessen the amount of tire work. Since Scott
already had another tire-man, with greater seniority, Scott
laid off Wood. Prior to laying off Woods, Scott conferred
with Hollis and, at Hollis' suggestion, with Respondent's
attorney to obtain counsel on whether the discharge could
properly take place while the Union's organizational cam-
paign was in progress. They were advised by counsel that the
discharge could take place if the business requirements so
:! It might have been expected that the union organizer, as the Charging
Party, would have been able to give further substance to the charge of unfair
labor practices in the discharge of Woods. However, Jones did not testify and
was present for only the first morning of the 2-day hearing. It would be unfair
to draw a conclusion from his absence that he was disinterested or considered
the charge of little moment. But neither is it possible to infer from his absence,
or the failure to send a representative in his place, a deep concern by the
Charging Party over Respondent's action.
954
SERVICE GARAGE, INC.
dictated. Hollis testified that the specific union activity of
Woods in particular was not mentioned in the conversation
that took place with counsel. Hollis specifically testified that
he had not instructed Scott to lay off Woods because of
union activities.
With these various assertions in the record, what basis is
there for concluding that Wood's discharge was discrimina-
torily motivated? The brief filed on behalf of the General
Counsel takes the position that the contention that Woods
was laid off because of a reduction in business is not
supported by the record, and that, therefore, Respondent's
decision creates a justifiable inference that the decision was
based on a desire to chill the union activity of its employ-
ees.2 Indeed, a substantial portion of the record is taken up
with the interrogation of Scott, Woods, and others as to the
amount of work and how many workers were needed for
that purpose. However, there is no need to make a careful
analysis of the amount of tire work, on hand or anticipated,
nor to substitute the Administrative Law Judge's assessment
for management's decision as to how many tiremen were
needed. Indeed, it may well be that Respondent underesti-
mated its anticipated tire work. The fact that Woods was
recalled to work on January 17, 8 days after he was laid off,
indicates that the judgement may have been wrong. In fact,
Scott testified that he found out that he had more tire work
than he had anticipated, and, therefore, called Johnny
Woods back to work. The issue here is not the amount of tire
work, but whether-even assuming that Scott's decision on
the tire work was flagrantly deficient-it can be inferred that
Woods' layoff was union motivated.
There are a number of elements in this case that argue
strongly against that inference. First of all, as discussed
above in the pay raise issue, there has been no showing in
this proceeding of any union animus on the part of
Respondent. Secondly, Woods was not a union activist; his
only participation in the union activity shown on the record
was that he signed a union card, as did all of the other
employees. Respondent, in its closing statement, maintained
that since Woods was not a union ringleader his layoff could
not have had a union motivation. The brief on behalf of the
General Counsel counters that view by stating that "by
taking that position, Respondent simply seeks to avoid the
issue.", The logic of that argument eludes me. No one
disputes that the discharge of employees, other than leading
union activists, to discourage union activity is a violation of
the Act. But some element of proof is needed that the
motivation was indeed to discourage union activity. Here,
the record is devoid of that proof.
Some relevance must also be attached to the fact that
Woods was recalled to work on January 17, well before the
date of January 29 when Respondent was informed that the
Union's petition had been withdrawn. Why recall Woods if
his layoff was union motivated? Is there such a dearth of
tiremen in Memphis? In light of that recall an inference of
union motivation for the layoff would be capricious and
unjust.
: G.C. br.. pp. 9 and 10.
"G.C. br., p. 10.
"' The General Counsel declares (G.C. hr., p. 10) that "the effectiveness of
Respondent's efforts [in laying off Wxdsl is amply demonstrated by the fact
that the Union withdrew its petition." This is a very troubling statement,
These considerations lead me to conclude that Woods was
not, as alleged in the complaint, laid off because he joined or
assisted the Union.2"
D. Termination of William Perry
The complaint alleged that Respondent had violated the
Act in discharging William A. Perry on January 9, 1979,
because Respondent's employees had joined or assisted the
Union or had engaged in other union activities. This
allegation was also, as was the case with Woods' layoff,
contained in the original charge, although here also the
Charging Party did not testify nor add further detail in the
record to its charge. There are some relevant similarities
between the termination of Perry and the layoff of Woods,
not the least of which is that Perry, like Woods, did not
testify that his discharge was union motivated. Moreover, as
with Woods there is no indication in the record that Perry
thought, felt, or inferred that his termination was due to
union activities.
Respondent's position is that Perry was terminated
because his work was not satisfactory. Scott testified that he
fired Perry because "he couldn't do the work and he made
too many negligent mistakes over a period of a couple of
months." Hollis' testimony supported that of Scott. The
separation notice given to Perry states: "Probation employee
terminated due to unsatisfactory performance.""' Perry's
fellow employees, who had also signed union cards, testified
as to Perry's termination. Holt testified that he had
complained to Scott about Perry's work and that Perry was
not qualified to do all the mechanical work that there was to
do. Maple testified that Scott's decision to discharge Perry
was not unjustified or unreasonable, and that it had been me,
I'd of got rid of him a week ago."
As was the case with Woods, a substantial portion of the
hearing was devoted to questions about Perry's work-
whether he put a transmission in right or not, whether he
acted carelessly in driving a truck with defective brakes,
whether he was a good clutch mechanic, whether he made
more mistakes than other mechanics, the seriousness of his
mistakes, whether he was truly on probation or not, and
whether the accusation of poor performance was valid or
not. But here again, the fact to be determined in this case is
not the quality of Perry's work as a mechanic, nor whether
Scott made the best management decision in judging Perry's
performance to be unsatisfactory. The issue in this case is
whether the termination was an unfair labor practice.
The General Counsel's position, as set forth in her brief, is
that Respondent's claims as to Perry's poor performance
and probationary status were mere pretexts and that,
therefore, Perry was discharged in violation of Section (a)(3)
of the Act. The evidence on the record that Respondent had
such an ulterior motive is lacking, and the indications that
such a motive was not the moving force are far more
persuasive. Certainly, an argument can be made that Perry
since, if true, it may concern a violation much more egregious than those
alleged in this proceeding. However, such a charge does not form a part of the
issues in the present case and needs to he dealt with. if formally charged, in a
separate proceeding.
G.C. Exh. 9
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a hard worker and a willing, if not thoroughly
experience, mechanic; after all, he was a mechanic trainee."
But similarly, there is strong support in the record that he
was dismissed for his performance.
Perry was not a union activist; he did not consider himself
to be one, and his employer and fellow workers did not see
him as such. There has been no testimony from any witness,
himself or others, that he was discharged for union-related
reasons. In fact, Maple, who had been identified as one of
the union ringleaders among the employees, when asked
why Perry (and Woods) had been singled out to be punished
because of their union activities, replied, "They wasn't
punished."
Before leaving this item, one further element needs to be
noted. The complaint alleged, at paragraph 14, not only that
Perry had been discharged discriminatorily, but that Re-
spondent had "refused and continues to fail and refuse to
" See G.C. Exh. 9.
': Brief on behalf of the General Counsel recommended in the concluding
paragraph of her brief a number of appropriate remedies, including the
payment to Woods and Perry of all money lost plus 9-percent per annum
interest and the payment of wage increases to all employees plus 9-percent per
reinstate such employee." The record shows that around
January 28, when Perry was visiting with other employees at
the Company's garage, he was asked by Graham King, who
interviewed applicants for Respondent as well as for the
other Hollis-Bell companies, if he would like to go back to
work for Respondent. Perry in fact did fill out an application
and gave it to King. But when asked if he went back to work
for Respondent, he testified, "No, I was offered a better job
at another truck line." In view of this, the allegation that
Respondent "continues to fail and refuse to reinstate such
employee" lacks merit.
These considerations, in my judgment, fully support the
conclusion that the allegation that William A. Perry was
discriminatorily discharged in violation of Section 8(a)(l)
and (3) of the Act has not met the burden of proof."
[Recommended Order for dismissal omitted from publica-
tion.]
annum interest. Attached to the brief was a Supplemental brief in support of a
remedial interest rate of 9%. In light of the recommended dismissal of the
complaint in its entirety, the proposed remedies are denied and the
supplemental brief is, for t he purposes of this case, deemed moot.
956