Al Ortale Rambler

National Labor Relations Board - Board Decisions

Jun 11, 1965

152 N.L.R.B. 1433 (N.L.R.B. 1965)

AL ORTALE RAMBLER 1433
Interested parties may communicate directly with the Board's Regional Office,
830 Market Street, San Francisco, California, Telephone No. 556-1568, if they have
any questions concerning this notice or compliance with its provisions.
Dwight-Eubank Rambler, Inc., d/b/a Al Ortale Rambler and In-
ternational Association of Machinists (AFL-CIO). Case No.
21-CA-5654. June 11, 1965
DECISION AND ORDER
On January 26, 1965, Trial Examiner Wallace E. Royster issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the General Counsel filed
an answering brief to the Respondent's exceptions together with cross-
exceptions to the Trial Examiner's Decision and a supporting brief for
the cross-exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing. Respondent excepts to the Trial Examiner's failure to
grant its motion to strike the testimony of witnesses Paradis, Friesner,
Shepherd, Reynolds, Sloan, Buell, and Edwards because their original
pretrial affidavits were not produced for Respondent's inspection upon
the completion of their direct examination by the General Counsel.
The record reflects that the original affidavits had been in a Board file
which was lost in transit to Washington, D.C., prior to issuance of the
complaint. When Respondent demanded the affidavits of Paradis,
Friesner, Shepherd, Reynolds, Sloan and Buell, the General Counsel
produced what he represented to be carbon copies of those affidavits,
explaining that the originals were part of the lost files and therefore
unavailable. As to a second affidavit of Buell and an affidavit of
Edwards taken on November 22, 1963, for which no copies were avail-
able, the General Counsel produced original affidavits taken on
March 10 and 13,1964, respectively.
Respondent contends that, as it was deprived of its right to review
the originals of the affidavits for purposes of cross-examination, it was
denied due process, relying upon Harvey Aluminum (Inc.), General
Enginzeering, Inc., and Wallace A. Umnnel, d/b/a Wallace Detective
152 NLRB No. 142.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Security Agency v. N.L.R.R., 335 F. 2d 749 (C.A. 9). However,
unlike the Harvey Aluminum case in which the General Counsel was
unwilling to produce affidavits taken by other Government agencies,
in this case the General Counsel was totally unable to produce the
originals of the affidavits in question because they had been lost. The
General Counsel has done everything within his power to supply
Respondent with the substance of the witnesses' affidavits, providing
copies where available, and providing originals of later affidavits cover-
ing the subject matter of the lost affidavits. Respondent, in its cross-
examination of the witnesses who had given the original affidavits,
had every opportunity to ascertain from them if the copies supplied
to it were not copies of the original affidavits, and if the March 10 and
13, 1964, affidavits of Buell and Edwards differed materially from the
lost affidavits of November 22, 1963. The evidence elicited gives no
indication that such was the case. In these circumstances, and as the
General Counsel did produce the very documents he had available
for trying his case, we find that Respondent was in no way prejudiced
by the inability of the General Counsel to produce the original affi-
davits of the witnesses in question, and we affirm the Trial Examiner's
denial of Respondent's motion to strike the testimony of these wit-
nesses. We therefore find that the Trial Examiner's rulings are free
from prejudicial error and are hereby affirmed.
The Board has considered the Trial Examiner's Decision, the excep-
tions, cross-exceptions, and briefs, and the entire record in this case,
and hereby adopts the findings,' conclusions, and recommendations of
the Trial Examiner with the following modification and additions.
The General Counsel, in his cross-exceptions, excepts to the Trial
Examiner's failure to find certain additional violations of the Act by
Respondent. For example, the General Counsel excepts to the failure
of the Trial Examiner to find that, between October 2 and 14, 1963,
1 The Respondent excepts to the Trial Examiner 's crediting of Bibee ' s testimony we
find no merit in this exception . In addition to the factors relied upon by the Trial
Examiner for crediting Bibee , we also note that Bibee's testimony with respect to the
starting dates of employees Kane , Baldwin , Hannon , and O ' Shaughnessy and the transfer
date of salesman Colp into the maintenance department , is corroborated by the testimony
of employees Friesner , Reynolds , Shepherd , Sloan , Buell, and Paradis These witnesses
testified that new - car preparation work was not done in the warehouse and that , though
they occasionally went to the warehouse to pick up a new car for servicing at the shop,
they never saw Kane, Baldwin , Hannon , or O'Shaughnessy working for Respondent until
after October 2, the date on which the Union demanded recognition . These same witnesses
also testified that Colp did not transfer into the service department until after Paradis
was discharged on October 2, testimony which is further corroborated by Pauline Peter-
son. Futhermore, Respondent's own witnesses , President Ortale and Service Manager
Carroll, admitted that Kane, Baldwin , Hannon, O'Shaughnessy , and Colp were not present
at a meeting of service department employees on October 1, 1963 This meeting was set
up by President Ortale to introduce Carroll as the new service manager , to compliment
the employees on their work performance , and to discuss the impending move to larger
quarters We, like the Trial Examiner , regard it as significant that employees, who
Respondent claims were already hired as part of the service department , were not present
at this meeting
AL ORTALE RAMBLER 1435
inclusive, Respondent withheld more desirable work from and assigned
more onerous duties to the employees who had engaged in the strike
of October 2 and 3, 19635 because these employees had joined or assisted
the Union. As to this particular cross-exception, we find the evidence
in the record to be insufficient to meet the General Counsel's burden of
proof . The General Counsel also excepts to the Trial Examiner's find-
ing that Ortale's comments on October 14, 1963, to Johnson, Reynolds,
and Shepherd constituted merely a threat of discharge and not an
actual discharge, and his conclusion therefrom that Johnson, Reynolds,
and Shepherd were not discharged in violation of Section 8(a) (3).
As Johnson already has been reinstated by Respondent and, as under
the facts of this case, Reynolds' and Shepherd's reinstatement and
backpay rights would not be affected by the finding requested by the
General Counsel, we deem it unnecessary to pass upon this issue. Fur-
ther, as any finding that Respondent violated the Act in other respects
urged by the General Counsel would merely be cumulative to the viola-
tions found herein, and would not affect the scope of our remedy, Ave
also deem it unnecessary to pass upon these other issues.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondent Dwight-Eubank Rambler, Inc.,
d/b/a Al Ortale Rambler, Torrance, California, its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified :
At the end of the last sentence of the third paragraph in "V. The
Remedy" in the Trial Examiner's Decision, delete the period after the
word "quarterly'' and add thereon, "as set forth in Isis Plumbing cC
Heating Co., 138 NLRB 716."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was tried before Trial Examiner Wallace E. Royster from May 11
through 22, and November 30, 1964, in Los Angeles , California.1 At issue is whether
Dwight-Eubank Rambler, Inc., d/b/a Ortale Rambler , herein called the Respondent:
(1) has interfered with, restrained , and coerced its employees in their exercise of
rights guaranteed by Section 7 of the Act , thus violating Section 8(a)(1) of the Act;
(2) for discriminatory reasons, has discharged employees Bernard Paradis, Terry
Friesner , Allen Buell , Earl Johnson , Fred Reynolds, Robert Shepherd , Roscoe Sloan,
and Robert Knutson , thus violating Section 8(a) (3) of the Act; and ( 3) on and since
October 2, 1963, has refused unlawfully to bargain collectively with the International
Association of Machinists (AFL-CIO), herein called the Union , thus violating Sec-
tion 8(a)(5) of the Act. It is also alleged that a strike among Respondent's employ-
ees occurring on October 2 and again on October 14, 1963 , 2 was occasioned by
Respondent 's unfair labor practices . Briefs and supplemental briefs have been filed
by counsel and have been considered.
1 Charges filed November 13 and December 16, 1963. Complaint issued March 24, 1963.
2 A11 dates are in 1963 except as otherwise shown.
1436 DECISION S OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the entire record in the case and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent is a California corporation with places of business located in
Torrance, California, where it is engaged in the sale, distribution, and servicing of
automobiles. In 1963 Respondent's gross sales exceeded $500,000 and its receipt of
goods from points outside the State of California exceeded $50,000. The Respondent
concedes, and I find, that it is an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges, Respondent's answer admits, and I find, that all service
department employees including mechanics, lubemen, mechanics helpers, porters,
service writers, and parts department employees, but excluding all other employees,
office clerical employees, new- and used-car salesmen, watchmen, guards, and super-
visors as defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
On September 23 Allen Buell, Earl Johnson, Fred Reynolds, Robert Shepherd,
Roscoe Sloan, Terry Friesner, and Richard Knutson met with a representative of the
Union and signed cards designating the Union as bargaining representative. All of
those signing were then working for the Respondent in classifications falling within
the bargaining unit.
Sometime in September the Respondent rented and, for about 30 days thereafter,
used a warehouse where new automobiles were stored pending the unveiling of the
1964 models to the public about October 3. Albert Ortale, Respondent's president,
and Clifford Carroll, the service manager, testified that to aid in readying new cars
for sale, Robert Colp, who was in Respondent's employ as a salesman , in late Septem-
ber was transferred to the service department as a service writer and has since
remained in that classification. Additionally, they testified Philip Kane was hired on
a permanent basis on September 28 to work in the parts department. Three individ-
uals, James Hannon, Robert Baldwin, and Eugene O'Shaughnessy, according to
Ortale and Carroll, were hired as mechanics and worked on cars at the storage ware-
house on September 28 and 30. All three allegedly were hired with the understanding
that they would come to work on a permanent basis when a new shop and showroom
at another location was ready for occupancy. Carroll also testified that in late
August he hired one James MacDonald as a mechanic, that on September 28, he se-
cured $100 as an advance in wages for MacDonald, forwarding this sum to him, and
that MacDonald reported for work about mid-October.
Kane, Baldwin, and O'Shaughnessy testified that they had indeed begun work for
the Respondent on September 28, and each asserted that he had been paid in cash for
the work done on October 1. Kane explained that he worked September 28 (a Satur-
day) and September 30 (a Monday), but that on the intervening Sunday he injured
his back while playing golf and was for that reason unable to return to his job
until October 7.3 Kane was not asked and did not explain why, if he was not a
casual employee, he was paid in cash on October 1, for the regular payday fell on
October 4. Hannon testified at the reopened hearing that he could not recall the
date of his hire by the Respondent. Neither Colp nor MacDonald was called to
the stand.
It is the contention of the Respondent that on October 2 it had 15 nonsupervisory
employees in the unit found appropriate; namely, Buell, Johnson, Reynolds, Shep-
herd, Sloan, Friesner, Knutson, Jim Murray, Andrew White, Colp, Kane, Hannon,
Baldwin, O'Shaughnessy, and MacDonald. Counsel for the General Counsel agrees
that the nine first listed were Respondent's employees on that date, asserts that the
name of Paradis should be added because he was by then no longer a supervisor, and
denies that the remaining individuals were then employed in Respondent's service
department.
B Respondent 's payroll records Indicate that he did not work again for the Respondent
before October 11.
AL ORTALE RAMBLER 1437
On October 1, after working hours, the seven employees who signed union designa-
tion cards on September 23, and Bernard Paradis, who for a period had been acting
service manager, met with Charles Edwards, a representative of the Union, and
signed applications to become union members. Edwards told them, he testified
credibly, that by this act they had become members of the Union. Each was given
a union button and Buell was chosen as shop steward. The following morning,
October 2, Edwards came to Respondent's shop on Torrance Boulevard. There he
spoke to Clifford Carroll, Respondent's service manager. Edwards told Carroll that
the Union represented the service department employees, asked Carroll to note that
all of them were wearing union buttons, and said that Buell was the shop steward.
Carroll replied that Edwards' claim would have to be presented to Respondent's
president, Albert Ortale. Ortale was not in the shop and after a wait, Edwards left.
All of those who had joined the previous evening, except Paradis, did in fact display
their union buttons at work on October 2. Also on October 2, Edwards wrote and
mailed to the Respondent a letter iterating the claim of representative status and
asking that an early date be set for a meeting? On September 30 the Union filed a
petition for certification with the Board's Los Angeles Regional Office. Notice of
this filing reached the Respondent on October 2 or 3.
By letter dated October 7, Respondent's counsel wrote the Union expressing doubt
concerning the claim of majority and refusing to accord recognition without
certification.
As expressed at the hearing, the position of the Respondent on the question of
majority has two aspects. First, its doubt was a reasonable one and, second, the
Union was not in fact the choice of its employees. The Union and the General
Counsel assert that the unit encompassed 10 employees: the 8 who joined the
Union and 2 "lot boys," Murray and White. The Respondent argues that Paradis
at all times was a supervisor and thus not in the unit and also contends that Baldwin,
O'Shaughnessy, Hannon, and Kane; James MacDonald whose employment was
arranged in late August; Robert Colp who did some service writing in late September;
and Davis, Carndt, and Gooden, the last three being hired sometime after October 2,
should be counted as unit employees. Thus it is Respondent's view that there were,
excluding Paradis, 18 employees in the unit and that the Union had never been
designated as representative by a majority of that number.
Earlier in 1963 the Respondent had arranged for the construction of a shop and
showroom at a location somewhat removed from the facility on Torrance Boulevard
where the events giving rise to the complaint occurred. At the new shop the
Respondent would have space where about 18 mechanics could work and it intended
to hire additional mechanics as soon as they profitably could be employed. Carroll
had told several mechanics with whose work he was familiar that when the new shop
was ready he would have work for them. Baldwin, Hannon, and O'Shaughnessy had
worked for Carroll before and all hoped for or expected regular employment when
the larger shop was ready for occupancy.
Until sometime in 1962, Carroll had been Respondent's service manager at the
Torrance Boulevard location. In the summer of 1963 he was working in western
New York State when Ortale arranged for him to return to his former employment.
Carroll knew of Respondent's expansion plans and told some of the men working
under him in New York that they would have opportunity to work for him when
the new shop was ready. O'Shaughnessy, Hannon, and Baldwin came to California
and sought out Carroll. Each was told that when the shop moved to the new loca-
tion he would have opportunity for employment. O'Shaughnessy and Hannon found
other jobs.
Pauline Peterson, who had been working in Respondent's office in October, testi-
fied that Robert Colp remained a salesman until sometime after October 2. All of
the employees called as witnesses by the General Counsel, who were questioned on
the point, said that Kane, Baldwin, Hannon, and O'Shaughnessy were unknown to
them as employees until after October 2, and that they observed no one of the four
at work for the Respondent in the warehouse where the new cars were stored.
However, Respondent's payroll records and cash payment vouchers indicate that the
four did, in fact, work as they testified.
When the hearing closed on May 22, 1964, questions of some difficulty existed
centering about the employment status of Kane, Baldwin, Hannon, and O'Shaughn-
essy on the date the Union demanded recognition and concerning the work assign-
ment of Robert Colp on that date; were they to be counted as employees in the
bargaining unit on October 2?
4 The letter also asserts that a demand for recognition had been made by letter on
September 25, a week earlier There is no testimonial evidence that such a demand was
made and I conclude that it was not.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In October 1964, counsel for the General Counsel filed a motion with me to
reopen the hearing, asserting that he now had evidence not before available to him
to establish that Kane, Baldwin, Hannon, and O'Shaughnessy had not been hired
prior to October 3, that Colp had not worked in the bargaining unit before that date,
and that records of the Respondent had been falsified and contrived to make it
appear otherwise . The motion was granted and the hearing reconvened on Novem-
ber 30. The testimony of Louise Bibee, taken on that date, exposes the fraud at-
tempted by the Respondent and reveals the conscious falsification in the testimony of
Ortale and Carroll in this connection as well as that of Kane, O'Shaughnessy, and
Baldwin, Hannon had not testified in the earlier sessions and Colp was never called
to the stand.
Bibee, until the termination of her employment in March 1964, had been the
office manager for the Respondent She testified that on December 20, 1963, Ortale
called her into his office and explained to her that if Respondent's records could be
altered to show that a certain number of employees in the bargaining unit had begun
work prior to the time that they actually had, the strike which was then in progress
might be stopped. Ortale suggested, Bibee testified, that the employment records
of Kane, Hannon, Baldwin, O'Shaughnessy, MacDonald, and Colp be altered to
reflect that the first four had been given employment sometime before October 2
and that Colp had been transferred from his job as a used-car salesman to that of
service writer before that date. Bibee explained to him the difficulty of making
such changes but at Ortale's instruction proceeded to do so. Bibee warned Ortale
that payroll checks could not be used to evidence wage payments prior to the
October date because the check numbers would be out of sequence. Ortale said
that this difficulty could be surmounted by showing that the individuals were paid
in cash. Bibee suggested that Ortale was embarking upon a serious undertaking.
He replied "anything we could do to stop the strike had to be done." Bibee testified
that Ortale also instructed her to type on the face of a check in the amount of $100,
which had been issued to Clifford Carroll in September in payment or as an advance
in connection with Car-roll's expenses in returning to the Respondent 's employ from
New York, something to show that instead the check had been given to Carroll so
that he in turn might send money to MacDonald to enable MacDonald to come to
California and somehow to indicate that this was an advance payment of wages to
MacDonald. It was decided that the fictitious work record would be shown as
occurring on September 28 and 30, 1963. Bibee told Carroll of Ortale's instructions
and at Bibee's suggestion each of the affected men other than Colp came separately
to Bibee's office. Bibee had each of the men sign new W-4 ,forms reflecting dates
earlier than the dates appearing on the W-4 forms they had signed when first
employed, and had all but Hannon fill out new employment application forms bearing
dates earlier than the dates appearing on the forms then in the file. Hannon had
applied for work on some date prior to the end of September and there was no
necessity to change the date on his application . Kane, Hannon , Baldwin, and
O'Shaughnessy then signed cash receipt forms indicating the payment to them of
various sums to make it appear that they had, before October 2, performed work for
the Respondent and that they had been paid for it. Bibee then removed from the
payroll ledger book the original sheets and substituted others indicating the earlier
employment of these men and the payment to them by cash of certain sums of money.
These new compensation records were sent to Lomita Blueprint Company for copying
and returned later that day. Bibee then took the falsified records and the correct
ones to Ortale. In Bibee's presence Ortale took the old records and destroyed
them, saying that he did not want to leave this task to anyone else. Later that
day Ortale called Bibee back to his office and said that he had been advised by
counsel that it was essential to show something more than a mere cash disbursement
to the employees. Bibee then prepared a new set of compensation records and
entered, she testified, three-digit numbers in appropriate columns, the numbers
appearing on the petty cash voucher which the employees had signed. These com-
pensation records were in turn sent to Lomita Blueprint Company for copying and
were returned the next day. Bibee also changed Colp's compensation record to show
that he was working as a service writer in the service department prior to October 2,
although the original record showed him then to have been a salesman. At the top
of the payroll check in the amount of $100 payable to Clifford Carroll which by
then had been paid and returned to the Respondent from its bank, she entered the
5 The employment application of 1\tacDonald bears internal evidence of falsity Bear-
ing the date of September 20, it recites his age as 35 Calculating from his birth date,
he did not attain this age until October 17, probably just before his employment with
Respondent actually began
AL ORTALE RAMBLER 1439
words "Advance wages-James MacDonald." Bibee also testified that Colp did not
perform service writing until after the discharge of Bernard Paradis on October 2, and
that the Border Avenue warehouse was used only for "some minor clean-up work."
Or-tale testified that he "certainly did not" have any meeting with Bibee on
December 20 in which he instructed her to falsify any records and denied that he
had himself done anything of the sort. Clifford Carroll denied that on or about
December 20 Bibee had asked him to send employees to her for the purpose of
changing employment dates.
When the hearing was in progress in May, Carroll and Ortale then asserted in their
respective testimonial appearances that the individuals whose employment status is
brought into question by Bibee's testimony were, in fact, employed in the bargaining
unit prior to October 2. It is argued implicitly and explicitly that Bibee is unworthy
of belief and that she is attempting to use the processes of the Board to harass and
embarrass the Respondent. Ortale testified that in early March 1964, he learned that
Respondent's checking account was overdrawn by about $3,000, and that subsequent
investigation convinced him that Bibee has embezzled about $30,000 from the
Respondent. Bibee has not worked for the Respondent since March 7. Civil actions
have been filed against her in an attempt to gain a monetary judgment and certain
of her properties and bank accounts have been seized under court process. No
criminal prosecution has eventuated but it is asserted that this will follow. It is
argued that Bibee has such a bias against the Respondent that she should not be
believed and that by reason of the claimed embezzlement her moral character is
such as to require the rejection of her testimony. I have well in mind the probability
that Bibee is hostile to the Respondent and I have evaluated her testimony accord-
ingly. There has been no determination on the merits of Respondent's claim con-
cerning embezzlement and I do not consider that her moral character has been shown
to be bad. I note of course that the claim of embezzlement has been made and that
Bibee is aware of it. Bibee's testimony concerning her conversations with Ortale on
December 20, and with Carroll, Hannon, Baldwin, Kane, and O'Shaughnessy on the
same date is utterly convincing. Hannon, although never admitting that he had
signed a new W-4 form or a new application on December 20, conceded that he
had a meeting with Bibee in late December and that he was then asked to sign a
"statement" and that it had something to do with work and the Union.6 Bibee's
testimony was precise and definite. Her recollection of using one of Respondent's
employees on two occasions on December 20 to take the falsified compensation
records to Lomita Blueprint Company is met only by a general denial from Ortale
that he had any conversations with Bibee such as she described. There is no
explanation why, if these transactions did not take place, the records of Lomita Blue-
print Company were not produced in refutation or reasons given for the failure
to do so.
I find that on October 2, Kane, Baldwin, Hannon, and O'Shaughnessy had not been
hired by the Respondent and had never performed any work for it. I find that the
employment records and work records of Kane, Baldwin, O'Shaughnessy, Hannon,
and Colp were falsified, as Bibee testified, and that Colp did not work as a service
writer on or before October 2. I further find that MacDonald was not hired on or
before October 2, that he was not sent an advance in wages, and that his employment
application was not executed on September 20.
After working hours on October 1, Ortale and Carroll met with all of the shop
employees.? Although the employees were already aware of it, Ortale said that
Carroll had taken over as service manager. He complimented the employees on
'their work performance, saying that he had an excellent "nucleus" for a shop crew.8
Ortale spoke of the impending move to new and larger quarters and that when spoke
of the impending move to new and larger quarters and that when this took place,
Paradis would be promoted from working foreman to assistant service manager.
Ortale commented that Paradis had done "a terrific job" in Carroll's absence and that
Paradis would be repaid for it. Ortale said that he planned to have a body shop at
the new location and mentioned something about instituting a profit-sharing plan.
6 Kane, Baldwin , and O'Shaughnessy at the reopened hearing testified that they signed
employment forms in September. Baldwin said that he did not "recall" signing addi-
tional forms at Bibee's request. Kane testified that he did not "recall" having a private
meeting with Bibee at Respondent 's premises but went on to say, "As far as I know,
it never took place. A lot of things have happened, going over the dam since then"
In response to the question, "You can't deny this took place ; you simply can't recall
it'i" Kane answered , "That ' s right."
7 Significantly , Kane , Baldwin, Hannon , O'Shaughnessy , and Colp were not in attendance.
8 No doubt in reference to his plans for expansion
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Friesner and Shepherd recalled that on this occasion Ortale said that Carroll would
be occupied for a time in arranging to equip the body shop and while he was so
engaged, Paradis would handle the service department.
That evening, as has been said, 8 of the 10 employees in the service department,
including Paradis, visited the Union's hall and signed applications for membership.
The following morning, October 2, all but Paradis appeared at work wearing their
union buttons. Paradis testified that he had a button affixed to his clothing but that
it was not visible Paradis began work for the Respondent in October 1962 as a
working foreman. While in that capacity, he testified, about March of 1963, Ortale
asked him if the men were thinking about a union. Paradis said that he did not know.
Ortale commented that the men would be foolish to do so and if they started a move
in that direction he would break it up. Thereafter, according to Paradis, Ortale
periodically asked him if the men were talking about a union. About mid-June, 1963,
the service manager was terminated and Paradis was told to handle that job until
Carroll, who was then employed in the East, could return. Paradis thus was acting
service manager until mid-September a when Carroll came back to Respondent's
employ. Thereafter, according to Paradis, he was occupied in servicing new cars,
doing small warranty jobs, and writing up some service orders. After September 21,
he worked as a mechanic about half the time. Paradis, unlike the other mechanics
in the shop, was paid a flat salary plus a small percentage on the work billed out of
the shop. About September 24 Carroll told him, Paradis testified, that he was no
longer to attend meetings of supervisors.
October 2 was a usual day for Paradis until at noon Carroll told him to stop writing
service orders. Two hours later Carroll told Paradis that he did not need a working
shop foreman; that he, Carroll, would take care of all complaints. He then handed
Paradis his termination check. Paradis notified Buell of his discharge and the men in
the shop put down their tools and did no more work that day. The next morning all
of them returned to the shop but the doors to the working area were closed and
remained so until about 10 o'clock.'() Ortale told Paradis to leave as he was no
longer employed. Paradis apparently delayed in following this instruction and finally
was ordered to depart by a policeman. Learning of the difficulty, Edwards came to
the shop and met with Ortale, Carroll, and Respondent's attorney, H. Burdette
Fredricks. Edwards told Ortale that he represented the men in the shop and asked
why Paradis was discharged. Ortale refused to give a reason, saying that he was
under no obligation to do so and that in any event Paradis was a supervisor. The
discussion continued over a period of hours with the men still not at work. According
to the undenied and credited testimony of Buell, the argument became heated at
times. Both Fredricks and Ortale assured the men that no more discharges were in
prospect, that the Respondent had rid itself of "the bad apple." Carroll interjected
to say that the whole "damn bunch" was fired, whereupon Fredricks told him to be
quiet. Finally, still according to Buell's credited testimony, Ortale said, "Mr.
Edwards, I will put it to you this way .... I will tell you why. If you had a gardener,
and you caught him fooling around with your wife, what would you do?" For some
reason this cryptic expression from Ortale caused the strikers to conclude that perhaps
there was valid ground for the discharge and they decided to resume work. It was
understood that Paradis would file a charge with the Board's Los Angeles Regional
Office in connection with his discharge.
On October 10 Friesner, who had been transferred from his job of lubricating
automobiles 11 to that of lot boy, was instructed just before the close of the workday
to deliver a car to a customer. Friesner performed the errand but through some con-
fusion concerning the address he used about an hour to make the trip. Carroll asked
Friesner why it had taken him so long and Friesner answered that Carroll had given
him the wrong address. The next day Friesner protested to Carroll because his
paycheck did not reflect the additional hour used in making this delivery. Rather
grumblingly Carroll got him an additional check for the hour. Friesner testified
that on Saturday, October 12, he worked until noon. At noon, Friesner testified,
Ortale pointed out to him a hole in the asphalt pavement near a gas pump and
instructed him to repair it Monday morning. According to Friesner, Carroll never
mentioned the matter to him. Testifying about this, Ortale said that on Friday,
September 11 at 4 30 p.m., he gave this instruction to Friesner and that the next
morning he told Carroll what he had done. Carroll commented to Ortale, the latter
6 Respondent's records show that Paradis reverted to his status as working foreman
or assistant service manager on September 16.
10 Hannon and Baldwin came to work this morning as mechanics but did not join in the
work stoppage. I find that this marked their first employment by the Respondent.
31 Carroll testified that Friesner was not a competent "Tube man."
AL ORTALE RAMBLER 1441
testified, that Friesner had refused to do the job and that he would discharge Friesner
when he returned to work on Monday. Both Ortale and Carroll testified that Friesner
did not work on Saturday. Carroll testified that he told Friesner on about three occa-
sions to fill the hole and that finally Ortale gave the instruction to Friesner. On
October 14, a Monday, Friesner came to the shop but was told by Carroll not to begin
work. Friesner waited around for about 2 hours. Finally Carroll said that he was
fired but refused to state the reason. Friesner notified Buell of this development and
left the shop. Notified of the discharge, Edwards came out and the men decided to
strike. Edwards telephoned Fredricks about the discharge, complaining that the
Respondent was getting rid of union members one by one. Fredricks said that
Friesner was discharged for being rude and insulting to customers. All of the shop
employees quit work upon learning of Friesner's discharge. Several of them went out
outside the premises and started picketing. Robert Shepherd, one of the mechanics,
testified that the men voted to strike in the belief that unless they took some such
action they would be discharged one by one. Shepherd, however, was hesitant about
engaging in a strike and he and two other mechanics, Johnson and Reynolds, remained
in the shop although they performed no work. Carroll and Ortale spoke to them,
Shepherd testified, saying that the picketing was foolish and a waste of time; that the
Respondent had rid itself of one troublemaker, and in a day or two would get rid of
the other one, Allen Buell. Some suggestion by Carroll or Ortale, which is unclear
in the record, caused Shepherd to speculate that perhaps the Company had some
justification for the discharge that had been made, and Shepherd told Carroll and
Ortale that he did not want to strike if the Respondent had "proof." Ortale and
Carroll said that proof would be forthcoming and Shepherd said that he would join
the pickets until it was presented to him. They told Shepherd that if he picketed his
services would no longer be required Leaving the shop Shepherd told Edwards he
did not know what to do but would make a decision that evening. The next day
Shepherd joined the strike and picketed for several months.
In the afternoon of October 14, according to Reynolds, Ortale and Carroll told him,
Johnson, and Shepherd that the Union was a "lost cause" and was fighting a losing
battle. Within 48 hours, they said, Buell and Paradis would be arrested and the
picketing enjoined. They advised that there was no sense in getting involved in such a
struggle and that the men had better stay at work. Ortale said that if the three joined
the pickets, they might as well take their tools with them. Shepherd asked at this
point if they would be discharged for picketing. Ortale answered that they would.
Reynolds began picketing the next morning and stayed on the picket line for several
months. Johnson, too, remained away from work the next day and picketed on
October 28.
On October 15 Ortale approached Allen Buell on the picket line, called him a thief
and a crook, and said that he was fired and would be arrested within 48 hours. Buell
and Edwards went into the shop where Ortale and Carroll exhibited some pistons
which had been removed from a customer's car. Ortale claimed that the appearance
of the pistons and the piston rings was such as to show that they had not been removed
from the cylinders since the car left the factory. The service record of the car
showed, however, that the owner had been charged for the installation of new piston
rings about 6 months earlier and that Buell had claimed to have performed the work.
The essence of the charge made by Ortale, on this occasion, is that Buell had falsely
claimed to have performed work and had been paid for it. Edwards, upon examining
the physical evidence, maintained that the piston rings had been changed and thus
there was nothing on which to base a charge that Buell had made a false claim-
During the discussion in the matter, Buell asserted that he could overhaul four trans-
missions in a working day. Or-tale commented that if that were so he would be foolish
not to keep Buell as an employee. In this context Edwards suggested that perhaps the
whole matter could be adjusted. If the Respondent would take Friesner back to,
work, all of the men would return. Ortale then asked Carroll if that would be agree-
able to him. Carroll answered that once a man (Friesner) was fired, he stayed fired-
Buell and Edwards then left the shop to return to the picket line, and Buell's speed
in overhauling transmissions was not tested.
Shepherd testified that on Sunday, October 27, Carroll came to the picket line and
said that Ortale wanted to talk to the men to iron out the differences, forget the Union
and go back to work. Reynolds testified that Carroll telephoned him to say that the
strikers were meeting that evening with Ortale. Shepherd, Reynolds, Sloan, and
Johnson met that evening with Carroll and Ortale. According to Shepherd, Ortale
attempted to persuade them to give up the Union, saying that he would give the
employees everything that the Union could get for them; that he would rearrange
hours to their satisfaction; provide hospitalization and a profit-sharing plan; and that
working conditions would be bettered in many respects. Ortale said that if they
789-730-66-vo1 152-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued picketing they would be blacklisted throughout the area and be unable to
obtain employment in other automotive shops, as the dealers would not have a union
man work for them. The men agreed to give Ortale an answer in the morning.
Edwards was notified of this development and came to the shop the next day. Ortale
objected to meeting with Edwards and with Buell who had also come to the meeting
place. Ortale said that things had not been too bad up to this point but from then on
he was going to get rough. Edwards said that the men were on strike to protest the
discharges and that their return to work was not conditioned upon recognition of the
Union. Ortale denied that he threatened to "get rough" and asserted that Edwards
was demanding a union-shop contract.
Most of the work done in Respondent's shop was upon a "flat rate" basis. For
example, a transmission overhaul, depending on the make or model of the car, would
entail a labor charge of 7 or 8 hours. Half of the labor charge would be given to the
mechanic performing the work and this would constitute his earnings. On one occa-
sion Allen Buell showed on his work sheets that he had performed in the course of the
working day, flat-rate jobs entailing a labor charge of 43 hours. Often a week's earn-
ings accomplished in the space of 44 hours would involve more than 100 flat-rate
hours.12 Ortale testified that this could not happen unless Buell submitted false
claims. According to Ortale an experienced mechanic might perhaps get credit for
9 flat-rate hours in the space of an 8-hour working day, but not more. Service
Manager Carroll testified that, under ideal conditions, a mechanic might "beat" the
flat-rate allowance by 30 percent. Thus he might be credited with flat-rate hours of
approximately 101/2 or 11 in the space of 8 hours. Buell claimed that he had over-
hauled five transmissions in 1 day, thus earning a minimum of 35 flat-rate hours.
Week after week his paycheck reflected hourly earnings far in excess of the approxi-
mately 44 hours that he worked in the shop. If he was, in fact, making false claims,
the Respondent long had this payroll evidence before it. I do not know that Buell
was always meticulously honest in his claims of work performed, but I am wholly
unconvinced that the Respondent, before October 2, thought it strange for a mechanic
to earn $300 a week. Testifying in another connection, Ortale remarked that
Reynolds would complain if his earnings did not fall within the range of $250 to
$300 a week. As the flat-rate charge contemplated a payment to the mechanic
of about $2.75 an hour, no one could make such a sum in a week without claiming
to have performed flat-rate work more than doubling the number of hours actually
spent in the shop. Whether the mechanics were actually skimping on their work
and making claims for payment for work to which they were not entitled or whether
the flat-rate charge itself was unrealistically set, I am convinced that the Respondent
was well aware for a long time of just what the situation was and was content with it.
Ortale testified that Paradis presented a problem in that he was rude and insolent
to customers. According to Ortale, he found it necessary to upbraid Paradis in this
connection on a number of occasions 13 In the morning of October 2, Ortale testified,
Carroll complained that Paradis was again guilty of mistreating a customer, and
pointed out a woman who, because of something Paradis had done or said, was
reduced to tears. Ortale agreed with Carroll's then expressed purpose to fire Paradis.
Carroll did the firing.
As to Buell, Ortale testified that about October 12 or 13 he verified his suspicions
that Buell was overcharging customers and claiming to have performed work not
actually done. Ortale also believed, for reasons which are not clear, that Buell and
Paradis were in some sort of conspiracy to enhance Buell's earnings at the expense
of the Respondent and its customers When Ortale learned of the piston ring charge,
earlier mentioned, he decided upon Buell's discharge.
Conclusions
I find that as a working foreman, Paradis was not a supervisor within the Act's
meaning. With the return of Carroll he was demoted from acting service manager
and thereafter was no more than a service writer. Thus I find that Paradis was within
the bargaining unit on October 2 and that in addition to him, it consisted of employ-
ees Buell, Shepherd, Reynolds, Johnson, Sloan, Friesner, Knutson, Murray, and
1' Respondent introduced certain of Buell's earnings records which show • week ending
March 28, 120 hours ; ending May 2, 88 hours; ending May 23, 93 hours, ending May 30,
83 hours, ending July 11, 148 hours; ending July 25. 113 hours: ending, August 1, 118
hours ; and ending August 15, 96 hours. Thus, in these selected weeks Buell claimed an
average of 110 flat-rate hours resulting in earnings of approximately $300 a week.
18 Yet on October 1, Ortale said that Paradis had done a "terrific job" and would
be rewarded.
AL ORTALE RAMBLER 1443
White. Eight of these had applied for membership in the Union on October 1, and
thus had chosen the Union as their bargaining representative. The Union was on
that date the majority representative.
It is asserted in Respondent's behalf that Ortale, in good faith, doubted that the
Union represented a majority of the employees and for that reason, if for no other,
he was under no legal compulsion to extend recognition. I find no merit in this
position. Aside from the fact that 7 of the 10 employees in the unit wore their union
buttons for the Respondent to view in the morning of October Respondent's con-
duct after the demand for recognition was left with Carroll by Edwards on that
morning indicates its purpose to discourage union membership by unlawful coercion.
I do not credit the testimony of Ortale and Carroll to the effect that Paradis was dis-
charged on October 2 for insulting a customer. Aside from the fact that Ortale has
demonstrated his unreliability as a witness by attempting to manufacture evidence in
connection with hirings, it is undenied that on October 1, Paradis was singled out for
praise by Ortale for the competency with which he had handled his job. These com-
pliments would not have been given to a man who was by inconsiderate conduct
constantly alienating customers. Then when Ortale was pressed by Edwards and the
employees on October 3 to give a reason for the discharge, in circumstances which
indicated to him that if he had a good one the strike would be halted, he resisted
the opportunity for hours. Finally, he iesponded with an allegory, but one which can
only with great difficulty be interpreted to mean mistreatment of customers. I find
that when the Respondent discovered that most of its service department employees
had joined the Union, it moved swiftly to put an end to such nonsense. Believing
that Paradis, because of his position of leadership as working foreman, should have
forestalled such a development or at least have informed the Respondent of what was
brewing, he was abruptly, in mid-day, fired.
I find that Paradis was discharged on October 2 to discourage membership in the
Union and that by the discharge the Respondent has violated Section 8 (a)( I) and
(3) of the Act.
Although it was said that Friesner was insulting to customers, the record contains
no description of such an incident . It is also asserted that he was not competent to
perform the lubrication work in which he was for sometime employed. The justifica-
tion for discharge seemingly relied upon is his failure to fill a hole in the asphalt
after having been instructed to do so. Carroll testified that he vainly told Friesner
on three occasions to do this job. Friesner denies that Carroll ever did so. As
between the two, I have no hesitancy in crediting Friesner. Carroll was too intimately
involved in the record manufacturing scheme and testifying in support of it to have
his testimony accepted uncritically. The essence of Friesner's testimony in the
matter is that Ortale told him to do the work on the Monday following the Friday or
Saturday when the instruction was given. Ortale said that he spoke to Friesner about
it about 4.30 on a Friday afternoon and that Friesner did not work the next day. It
is not the sense of Ortale's testimony that he expected Friesner to do the job on the
day that the order was given. On Saturday, Carroll and Ortale decided to fire
Friesner. When Friesner came to work on Monday he was told to stand aside.
After a wait of 2 hours, he was discharged and when he asked for a reason he was
refused. If the Respondent had a complaint about Friesner concerning filling the
hole or his lack of competency in lubricating (work he had not been doing for a
few weeks), why was he not told so. Why, if the Respondent had other than an
unlawful reason for the discharge, was he caused to wait 2 hours and then terminated
without explanation. The employees who had joined the Union were, in the cir-
cumstances, entitled to conclude, as they did, that the Respondent was pursuing a
policy of discharging them one by one. I consider that the evidence justifies an
inference to that effect and I draw it. I find that Friesner was discharged on Octo-
ber 14 because he had joined the Union and that the Respondent intended by the
discharge further to discourage its employees from supporting the Union.
The occasion when Buell was discharged has been described. Ortale testified that
he came to the decision to take such action on October 15 when, against a back-
ground of evidence that Buell had been overcharging customers and had been over-
charging the Respondent for work performed on cars that it owned, Carroll said
that there was additional and immediate evidence of such conduct on Buell's part.
Carroll then described the piston ring matter and said that he would discharge Buell
Ortale was willing to rescind this action when Buell asserted that he could perform
the overhaul work on four transmissions in the space of a day.14 Carroll put an
end to that possibility by saying, in respect to Friesner, that once a discharge is
141 find that this indicates that Ortale was not seriously concerned about the alleged
-overcharges.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made it is final. So the testimony of Carroll and Ortale is to the effect that Carroll
decided upon the discharge of Paradis; Carroll decided that Friesner must go; and
Carroll said that he would fire Buell. I have also found that on October 3, when
Ortale or Fredricks said that no more discharges were in prospect, Carroll said that
he would fire the whole "damn bunch."
I have found that a purpose to discourage membership in the Union motivated
the Respondent in discharging Paradis and Friesner and I am convinced that the
same consideration caused Ortale to fire Buell. Paradis was one who the Respond-
ent considered had violated a trust when the men over whom he was the working
foreman joined the Union . Friesner had exhibited his determination to secure what
he considered to be his right by claiming overtime in connection with the after-
hours' car delivery. Buell, of course , was the Union 's shop steward . But the
Respondent needed good mechanics and could not afford to discharge all of them.
It is significant , I think, that Shepherd and Reynolds , who both had on October 14
exhibited some reluctance to join the strike, were invited on October 27 to meet
with Ortale in the hope that they might be persuaded to return to work . Johnson,
who had not appeared on the picket line on or before that date , was also present
although how he learned of the meeting is not shown . Sloan , an apprentice mechanic,
was in attendance although it does not appear that he was personally notified to do
so. Knutson , who worked in the parts department , was not there and there is no
evidence that he was asked to come . So, although the Respondent wanted to get
its striking employees back to work, it centered its attention upon those who, it
might well believe , were individuals not irrevocably committed to union
representation.
On October 3 Carroll said that the whole "damn bunch " should be fired , clearly
this was because they were engaging in a lawful strike; on October 14 Ortale and
Carroll told Reynolds, Shepherd , and Johnson that if they joined the pickets they
would be discharged ; on October 27 Ortale told Johnson , Reynolds, Shepherd, and
Sloan that they were fighting a lost cause , that if they continued the picketing they
would be "blackballed" for employment in automobile service shops in the area, that
if they would return to work he would establish better conditions in the shop and
arrange for hospitalization and profit -sharing plans ; and on October 28 , said that if
the picketing persisted he would "get rough ." These comments and threats, I find,
interfered with, restrained , and coerced employees in the exercise of rights guaran-
teed in Section 7 of the Act and by their utterance the Respondent has violated
Section 8 (a)( I) of the Act.
Paradis, Friesner , and Buell were discharged to discourage membership in the
Union and to coerce the employees to abandon their strike . By the discharges the
Respondent has committed unfair labor practices within the meaning of Section
8(a)(1) and ( 3) of the Act.
By refusing on October 2 and thereafter to recognize and bargain with the Union
which then was and has continued to be the majority representative of Respond-
ent's employees in the appropriate unit, and by attempting on October 27 and 29
to bargain directly with its employees , the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a) (1) and (5) of the Act.
At the time of his discharge Buell was paying for an automobile on a conditional
sales contract with the Respondent as guarantor . By arrangement with the Respond-
ent sums were withheld from Buell's earnings to meet the monthly installment. A
day or two before the payment of October 17 was due, Ortale notified the lending
bank that if the payment was not made on that date , he wanted the car to be repos-
sessed. Respondent , by reason of payroll deductions , had then in its possession a
sufficient amount to make the October payment and had agreed with Buell that the
sums deducted would be used for that purpose . Respondent did not make the
payment for Buell on October 17 and neither did Buell. On October 18 the car
was repossessed allegedly to Buell's financial loss. This conduct on the part of the
Respondent is not alleged to violate the Act but the evidence was received solely to
establish that the Respondent was bitter and vengeful in its attitude toward Buell.
I think that it does that.
The evidence establishes , I find, that the strikes on October 2 and 14
were caused by Respondent 's unfair labor practices . Upon unconditional request
each striker is entitled to be reinstated to his former position and, if necessary,
replacements must be discharged . Johnson apparently was reinstated upon appli-
cation about October 29 . Because a threat to discharge is not the equivalent of an
actual discharge , I do not find that Johnson , Reynolds, Shepherd , Sloan, or Knutson
were discharged on October 14 or at any time.
AL ORTALE RAMBLER 1445
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to and have led to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has unlawfully refused to bargain with the
Union, it will be recommended that, upon request, the Respondent engage in bar-
gaining with the Union and if agreement is reached reduce it to writing and sign it.
Having found that the Respondent has unlawfully discharged its employees Ber-
nard Paradis, Terry Friesner, and Allen Buell, it will be recommended that Respond-
ent offer each of these individuals immediate and full reinstatement to his former or
substantially equivalent position, and that each be made whole for any loss of earn-
ings attributable to the discharge, by payment to him of that sum of money he
would have earned as wages from the date of discharge to the offer of reinstate-
ment, less net earnings during that period. Backpay shall be calculated in accord-
ance with the formula established by the Board in F. W. Woolworth Company, 90
NLRB 289, and shall bear interest at the rate of 6 percent per annum computed
quarterly.
The falsification of employment records with a purpose to deceive the Board or
its agents would seem to constitute conduct forbidden by Section 12 of the Act.
Any final determination in that respect and the imposition of any penalty is a mat-
ter for another forum. I recommend that the Board give consideration to submit-
ting the record in this respect to the Department of Justice for action.
Upon the basis of the foregoing findings of fact and in consideration of the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All service department employees of the Respondent including mechanics,
lubemen, mechanics helpers, porters, service writers, and parts department employ-
ees, but excluding all other employees, office clerical employees, new- and used-car
salesmen , watchmen, guards, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
4. On October 1, 1963, and at all times since , the Union has been the exclusive
bargaining representative of Respondent's employees in the appropriate unit.
5. By refusing on October 2, 1963, to recognize and to bargain with the Union,
the Respondent has engaged in unfair labor practices within the meaning of Sec-
tion 8 (a) (5) of the Act.
6. By discharging Bernard Paradis, Terry Friesner, and Allen Buell, the Respond-
ent has discouraged membership in the Union and has thereby engaged in unfair
labor practices within the meaning of Section 8(a) (3) of the Act.
7. By the refusal to bargain, by the discharges, by threatening employees with
discharge if they joined a picket line, by telling them that continued picketing would
result in their being unable to obtain employment in the area, and by telling them
that it would get rough if the picketing continued, the Respondent has interfered
with, restrained , and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act and has thus engaged in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
8. The strikes on October 2 and 14 were caused by Respondent's unfair labor
practices.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is hereby ordered that Dwight-Eubank Rambler, Inc ,
d/b/a Al Ortale Rambler, its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Association of Machinists
(AFL-CIO) as the exclusive representative of its employees in the bargaining unit,
herein found appropriate.
(b) Discharging employees because of their membership in or support of Inter-
national Association of Machinists (AFL-CIO).
(c) By refusing to bargain, by discharges, or by threatening discharge or black-
balling, or in any other manner interfering with, restraining , or coercing its employ-
ees in the exercise of their right to self-organization, to form labor organizations, to
join or assist International Association of Machinists (AFL-CIO), or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in lawful picketing or other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Upon request bargain collectively with International Association of Machin-
ists (AFL-CIO) as the exclusive representative of employees in the appropriate
unit, and if an understanding is reached, embody it in a signed agreement.
(b) Offer to Bernard Paradis, Terry Friesner, and Allen Buell immediate and
full reinstatement each to his former or substantially equivalent position, and make
each whole for any loss of earnings attributable to discharge as set forth in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due to the discharged employees under the terms of this Rec-
ommended Order
(d) Notify Bernard Paradis, Terry Friesner, and Allen Buell, if now serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
(e) Upon unconditional application offer to all employees who went on strike on
October 14, 1963, immediate and full reinstatement each to his former or substan-
tially equivalent position without prejudice to seniority or other rights and privi-
leges, dismissing , if necessary, any person hired after the beginning of that strike
and make them whole for any loss of earnings incurred should the Respondent fail
to bring about such reinstatement within 5 days of application.
(f) Post at its service department in Torrance, California, copies of the attached
notice marked "Appendix." 15 Copies of said notice, to be furnished by the Regional
Director for Region 21, shall, after being duly signed by an authorized representa-
tive of Respondent, be posted by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees in the service department are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 21, in writing, within 20 days from
the date of receipt of this Decision, what steps it has taken to comply herewith.16
ie In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order "
16 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read, "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
NATIONAL MARITIME UNION OF AMERICA, ETC. 1447
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL, upon request , bargain collectively with International Association of
Machinists (AFL-CIO) as the exclusive bargaining representative of the employ-
ees in the unit set forth below, and if an understanding is reached, WE WILL
reduce it to writing and sign it . The bargaining unit consists of all service
department employees, including mechanics, lubemen, mechanics helpers, por-
ters, service writers, and parts department employees, but excluding all other
employees, office clerical employees, new- and used-car salesmen, watchmen,
guards, and supervisors as defined in the National Labor Relations Act.
WE WILL offer to Bernard Paradis, Terry Friesner, and Allen Buell immediate
and full reinstatement each to his former or substantially equivalent position and
make each whole for any loss of earnings suffered by reason of discharge.
WE WILL NOT by refusing to bargain with the above-named Union, by threaten-
ing discharge for lawful picketing, or by saying that lawful picketing will result
in employees being blackballed, or in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-organization, to
form, join, or assist International Association of Machinists (AFL-CIO), or any
other labor organization, to bargain collectively through representatives of their
own choosing, to picket in a lawful manner, or to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as permitted by Section 8 (a) (3) of the Act.
Upon unconditional application, WE WILL offer any of the employees who be-
gan a strike on October 14, 1963, immediate and full reinstatement to his former
or substantially equivalent position without prejudice to seniority or other em-
ployment rights and privileges, discharging, if necessary, any person hired after
the onset of the strike. WE WILL make any such applicant whole for any loss of
pay suffered by reason of our refusal to reinstate him within 5 days of such
application.
DWIGHT-EUBANK RAMBLER, INC., d/b/a AL ORTALE RAMBLER,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees now serving in the
Armed Forces of the United States of the right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone Number 688-5204, if they have any
questions concerning this notice or compliance with its provisions.
National Maritime Union of America, AFL-CIO, Rick Miller, Its
National Vice-President, and Robert Collileux , Its Agent i and
Farmers Union Grain Terminal Association , a Corporation.
Case No. 18-CC-165. June 1111965
DECISION AND ORDER
On March 9, 1965, Trial Examiner Leo F. Lightner issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
1 As amended at the hearing.
152 NLRB No. 149.