Carsounds

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1352 (N.L.R.B. 1975)

1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
KBM Electronics, Inc., t/a Carsounds and District
Lodge No . 67, International Association of Ma-
chinists & Aerospace Workers, AFL-CIO. Case 5-
CA-6911
June 30, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On March 31, 1975, Administrative Law Judge
James V. Constantine issued the attached Decision in
this proceeding. Thereafter, Respondent and General
Counsel filed exceptions with supporting briefs.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, KBM Electronics,
Inc., t/a Carsounds, Rockville, Hyattsville, and
Morningside, Maryland, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
1 The Respondent 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 the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F2d 362 (CA 3, 1951) We have
carefully examined the record and find no basis for reversing his findings.
2 In adopting the Administrative Law Judge's findings and conclusions,
we find it unnecessary to rely on his fmdmg regarding the Board's small
plant rule.
DECISION
That complaint is based on a charge and amended chargt
filed on October 4 and December 13, 1974, respectively, by
the Charging Party, District Lodge No. 67, International
Association of Machinists & Aerospace Workers, AFL-
CIO, herein called the Union.
In substance the complaint alleges that Respondent
violated Section 8(a)(3) and (1), and that such conduct
affects commerce as defined in Section 2(6), of the Act.
Respondent has answered admitting some allegations of
the complaint but denying that it committed any unfair
labor practices.
Pursuant to due notice this case came on to be heard,
and was tried before me, at Washington, D.C., on January
13, 14, and 15, 1975. All parties were represented at and
participated in the trial, and had full opportunity to
introduce evidence, examine and cross-examine witnesses,
file briefs, and offer oral argument . Counsel for the
Respondent argued orally at the close of the case. Briefs
have been received from the General Counsel and the
Respondent.
This case presents the following issues:
1. Whether Respondent unlawfully interrogated em-
ployees at its Rockville, Maryland, store.
2. Whether Respondent discriminately terminated em-
ployee Michael Gordon.
3. Whether Respondent constructively discharged em-
ployee James Frazier by discriminatory action towards
him.
Upon the entire record in this case and from my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, a Maryland corporation, is engaged at
Rockville, Hyattsville, and Morningside, Maryland, in
selling and installing car radios, speakers, and alarm
systems. During the year preceding December 27, 1974,
according to paragraph 3 of the complaint, the allegations
of which the answer admits, "a representative period,
Respondent had gross sales in excess of $500,000, and
received, in interstate commerce, goods and materials
valued in excess of $50,000 from points located outside the
State of Virginia [sic]." I find that Respondent is an
employer within the meaning of Section 2(2), and is
engaged in commerce within the meaning of Section 2(6)
and (7), of the Act and that it will effectuate the policies of
the Act to assert jurisdiction over Respondent in the
present proceeding.
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This
is an unfair labor practice case litigated pursuant to the
provisions of Section 10(b) of the National Labor Rela-
tions Act, herein called the Act, 29 USC § 160(b). It was
commenced by a complaint issued on December 27, 1974,
by the General Counsel of the National Labor Relations
Board, the latter herein called the Board, through the
Acting Regional Director for Region 5, naming KBM
Electronics, Inc., trading as Carsounds, as the Respondent.
218 NLRB No. 207
II. 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
A. General Counsel's Case
Michael Gordon gave testimony for the General Counsel
which may be adequately summarized as follows. In late
CARSOUNDS 1353
summer of 1973 he was hired by Herman Rubner,
Respondent's general manager , as a management trainee at
$125 a week in its Rockville store . Later he was transferred
to its Hyattsville store for 2 or 3 weeks for additional
training as an installer "to learn the operations of the
company ." About a month after returning to Rockville he
was made assistant manager of the Hyattsville store.
In July or August 1974, he wrongfully took eight tape
decks of Respondent "having an average value of $150"
each and gave them to a friend to dispose of . Gordon at the
time was assistant manager at the Hyattsville store. When
his friend was "caught by the police" Gordon reported his
aforesaid misconduct to Respondent . About a week or 10
days later Respondent told Gordon that it realized he had
committed a crime but it did not desire to prosecute him
because he was a valuable employee and it wanted to
"make him into something for them." Consequently,
Respondent sent him back to Rockville to be an installer
for 3 months and, "if everything went okay" he would be
reinstated to "the same position , but not necessarily the
same store ." His pay at this time was $171 a week as
assistant manager but it was not cut when he returned to
Rockville as an installer although he was told it would be
reduced.
In September 1974, Gordon signed an authorization card
for the Union and solicited each employee at Respondent's
Rockville store to join the Union . In addition he witnessed
all the cards being signed by employees of said store. Said
cards had been distributed by James Frazier.
On September 18, 1974 , at about 5 p.m., Candido
Santiago , manager of the Rockville store , told Gordon to
"stick around" as General Manager Riibner wanted to see
Gordon . Gordon 's working day ended at 6 p .m. At about
6:15 p.m . Riibner arrived at the store and spoke privately
to Santiago for a few minutes. Then Santiago told Gordon
that he was sorry he had to discharge Gordon because
Gordon "wasn't doing the work good enough to their
standards. [Gordon ] had a bad attitude problem." Then
Riibner , who had left the room , returned and called
Gordon some bad names . Continuing, Riibner said that
Gordon had stabbed him in the back ; and that although
Riibner had given him a break, "this is how " Gordon
"went and treated them ." Then Riibner mentioned that he
had heard from Santiago that Gordon was "organizing a
union here," and asked, "What is this about a union?"
At this point Santiago joined them and asserted that
three employees had informed him that Gordon "was
talking to them about a union ." When Gordon denied this,
Riibner interrupted to state that he did not want a union at
Carsounds . Gordon replied that "they could really use
one." Then Santiago left. Riibner then observed that he
would not be surprised if President Mendelson of Respon-
dent prosecuted Gordon, and that "it was nothing to do
with the tape deck incident that" caused Gordon to be
fired.
When Gordon arrived at his home he called Kenneth
Chambers , the Union's representative , to state that he had
been discharged . Chambers urged him to obtain a written
statement from Respondent explaining why he was fired
because some other reason might be given later . The next
morning Santiago gave Gordon a letter stating the reason
for the latter 's dismissal. On the evening of October 7
Santiago telephoned Gordon to say that Riibner "was all
over" Santiago "about what he [Santiago ] wrote" in the
above letter.
Kenneth Chambers testified substantially as follows for
the General Counsel . He is employed by Respondent as an
installer at Hyattsville . He met with Robert Pruett of the
Union about September 3, 1974 , and, after discussing
organizing Respondent , received union cards to have other
employees sign. Later he himself gave cards out to
employees to sign and also had employee Charles Berkley
distribute them at the Morningside store and employee
James Frazier distribute them at the Rockville store.
On September 18, 1974, General Manager Riibner
mentioned that he had received a letter from the LAM and
asked Chambers if he knew anything about the Union.
When Chambers replied in the negative Riibner retorted
that another employee had told him that Chambers "was
behind" the Union . That evening employee Gordon
informed Chambers that Gordon had been fired and added
that Rubner had told Gordon that (a) Gordon "may have
been part of the union organization and everything" and
(b) Gordon was stabbing Riibner in the back. The next day
Rubner told Chambers that Gordon had been fired "for an
attitude problem and it didn 't have anything to do with a
union ." In this conversation Riibner also referred to
Gordon 's "earlier theft of the stereos."
Another witness testifying for the General Counsel is
James L . Frazier, who now works at the Morningside store.
A conspectus of his testimony is set forth here . He aided
the Union 's organizing campaign by distributing about 10
of its cards at the Rockville store and obtaining signatures
to four or five of such cards . On September 21, 1974, his
supervisor at Rockville , Store Manager Santiago, told
Frazier that Santiago had "received a letter in the mail and
I think you know exactly what I am talking about."
Notwithstanding that Frazier replied he had no idea of
what Santiago was referring to, the latter said he "expected
an answer . . . before you go home." Later, as Frazier
started to leave Santiago again demanded an answer, but
Frazier again replied he was unaware of what Santiago was
talking about. I find no violation of the Act in Santiago's
said conversation with Frazier.
On Sunday, September 22, Riibner telephoned Frazier at
the latter 's home stating he had received a letter from the
Union and asking if Mike Gordon has passed out any
union cards . Frazier replied that Gordon had not. Then
Riibner wanted to know if Frazier would be interested in a
union. When Frazier said, "Maybe," Riibner commented,
"That is all I wanted to know."
Frazier was due at work at the Rockville store at 9 a.m.
on October 11, but, because of car trouble , he telephoned
to the store that on account of such difficulty he did not
know when he would arrive . Then when he went to have
his car repaired he learned that Riibner wanted him to call
the latter as "it was important ." When Frazier called he
was criticized by Riibner , but Frazier replied his car had
broken down . When Frazier finally reported for work at
about 4 p.m. Riibner handed him a piece of paper to sign
which read:
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I, James Frazier , as a manager trainee , do not want the
responsibility as such - and himself would like to be
put down to an installer with a decrease in salary. From
$3.45 to $3.00 an hour and be transferred to the
Morningside store. [See Resp . Exh. 1 for Respondent's
version of such letter.]
Frazier refused to affix his signature to it . Then as Frazier
walked towards his car Riibner asked him, "Does this
mean that you quit? " Frazier answered that it did.
On October 14, Mr. Barranco , one of the owners of
Respondent , asked Frazier why Frazier did not want to be
a manager . Frazier answered that he felt he was "not .. .
ready . . . yet" and also he did not enjoy giving orders to
people . Then Barranco stated that he understood Frazier
was trying to get the Union, the IAM , in, and added that
when he had a union he "paid more than what they were
paying."
One day Respondent 's President Mendelson informed
Frazier that the latter could start working at the Morning-
side store at $3 .25 an hour. Frazier said , "All right." About
a week later Mendelson spoke to Frazier at the Hyattsville
store, when the latter happened to be there but was not
working there as an employee, and asked Frazier to work
in that store for $3.25 an hour , but Frazier stated he
wanted $3.45. Mendelson agreed to this higher figure.
Consequently Frazier returned to work at said store at
$3.45 an hour as an installer.
General Counsel 's last witness was Stephen A. Savoy,
employed by Respondent as installation manager at its
Hyattsville store . An adequate abridgment of his testimony
follows . He signed a card for the Union in mid-September
1974, upon being solicited therefor by Kenneth Chambers.
On September 23, General Manager Riibner asked hun by
telephone whether Savoy knew anything "about a union
that was going around," but Savoy answered in the
negative . Then Riibner declared that Mike Gordon "had
everyone sold on the union up there in Rockville" and
questioned Savoy as to how Savoy felt about a union.
Savoy answered he "didn't know ." Replying to an inquiry
by Savoy, Riibner asserted that he did not think a union
would be "helpful to" or "any better" for the employees.
Continuing said conversation Riibner said he had a
conversation with James Frazier in which James said he,
James, "was for the Union ." Then Riibner told Savoy that
Riibner did not want the Union "in the shop and .. .
before a union would come in that he would close the shop
down and . . . if [Savoy] heard anything about the Union
to let him [Riibner ] know ...." Riibner also asked if
Savoy knew anything about the union cards, but Savoy
replied that he did not.
The General Counsel also relied on the following
evidence which was stipulated to by the parties:
a. An election was held on October 22, 1974 , in a unit
comprising all mechanics, installation employees, and
trainees employed by Respondent at its Rockville, Hyatts-
ville, and Morningside, Maryland, locations . (See Joint
Exh. I and transcript , p. 65.)
b. The Union won that election . It was certified as the
representative of said employees on November 13.
c. By letter dated September 16, 1974 , the Union
requested recognition as such representative from Respon-
dent . (See G .C. Exh. 3.) Said letter was received by
Respondent on September 17.
At this point the General Counsel rested.
B. Respondent's Defense
Herman Riibner, Respondent's general manager, testi-
fied for it substantially as follows . Early in the summer of
1974 Officer Dunkele of the FBI informed him that the
FBI had "caught part" of a shipment coming to Respon-
dent from New York and which had been "hijacked."
However when Riibner examined said merchandise he
"knew it was not part of the hijacked shipment ," although
it was Respondent's merchandise. Nevertheless , after some
discussion Officer Dunkele told him that Respondent
"probably had an internal problem" and that he "would
see what he could do to help" Respondent.
A few days later Officer Dunkele informed Riibner that
the FBI had "caught the man" who had possession of
Respondent's merchandise . Not long after this Dunkele
informed Riibner that Michael Gordon was "the inside
man" who "had removed the merchandise from Car-
sounds." Later Riibner was called by Gordon and met with
Gordon at the latter's request. Gordon "owned up that he
had taken the merchandise. He was sorry about it."
(Riibner believed it had a retail value of about $ 1,300.) So
Riibner promised to help Gordon although Rubner
insisted "it is out of my hands ." The latter then talked by
phone to President Mendelson. As a result Riibner told
Gordon to return to the Hyattsville store "as if nothing had
happened and we would get back to him as soon as
possible."
The following Saturday Riibner discussed Gordon's case
with Barranco and Mendelson . Barranco "wanted to put
him [Gordon ] in jail," but the other two wanted to "give
him a break and see what we could do with him." The
three finally agreed to place Gordon on probation as an
employee for 3 months, and reduce his salary, and "reduce
him back to an installer in a different store . . . with the
opportunity that if he kept his nose clean ... if there was
an assistant manager's position open . . . he would have
that assistant managership and be reinstated." Then
Gordon was told to come to said meeting and, upon
arrival , was informed of the above decision. Gordon
thanked them for this and reported to the Rockville store
the following Monday.
Riibner talked to Santiago, the manager of the Rockville
store, and also to the assistant manager there, about
Gordon and directed them to submit a "progress report
on" Gordon, but Riibner did not allude to Gordon's prior
wrongdoing at any time in said conversations. Riibner
thereafter observed Gordon's job performance in the
Rockville store during "this probationary period ." Once he
observed Gordon "laying on the front seat of a car sound
asleep" during working hours and castigated Gordon for
such conduct . During the first week Santiago gave Riibner
good reports on Gordon , but "after that Candy [Santiago]
was having nothing but problems with the man." When
Riibner called this to the attention of Gordon the latter
admitted "I have been terrible and I am going to
completely correct it."
CARSOUNDS 1355
However, according to Rubner, thereafter "things [did
not] improve . . . . They were steady downhill - constant
reports that I was getting - from attitude reports." As a
result of these reports "we decided to dismiss the man,"
Riibner asserted at the trial. Actually Santiago discharged
Gordon on the 18th or 19th of September. Immediately
after said discharge Riibner talked to Gordon, telling the
latter that although Riibner "went to bat" for Gordon the
latter "smacked me [Riibner] in the face." At that time
Riibner claims he was not aware of any union organization
activity going on at any of Respondent' s stores.
According to Riibner, James Frazier started working at
Respondent's Hyattsville store and then was transferred to
its Morningside location. At first Frazier "started to
become an extremely good installer." Consequently Riib-
ner wanted Frazier to become an installation manager at
Rockville "to train new men coming in." So Riibner
offered such job to Frazier at "a forty cent increase" in
hourly pay to begin with and another 40-cent increase in a
month. Frazier accepted this promotion and was trans-
ferred to Rockville.
At Rockville, Frazier "did try ... it looked like he was
going to be fine and it was going to work out" in Rnbner's
opinion. But 2-1/2 or 3 months later Santiago reported to
Riibner that Frazier "does not want the responsibility."
Not long after this, around September, Frazier told Riibner
in the presence of Santiago that Frazier "did not want the
job and would rather go back to Hyattsville and work with
Steve Savoy. He [Frazier] only wanted to be an installer."
Riibner promised "to think about it." Later Riibner
discussed this situation with President Mendelson and then
composed a letter for Frazier to sign. (See Resp. Exh. 1 for
such letter.) The next day Riibner read the letter to Frazier,
inserted "from $3.45 to $3.00" therein, and asked the latter
to sign it. But Frazier replied he "couldn't accept it," got in
his car, and drove away. Riibner treated this as a "quit" by
Frazier. This was between October 10 and 15. Riibner by
then was cognizant that "there were union organizational
activities going on in the plant."
Before Frazier quit Riibner telephoned him at Frazier's
home and "asked him about the union or a union being
formed." Since Frazier replied that he did know about it,
Riibner asked if he was for or against a union. Frazier
answered in the affirmative. At that time Frazier was
installation manager and "trainer manager." Between 1-
1/2 and 2 weeks after Frazier quit his job Barranco
suggested to Riibner that Frazier "is worth saving ... .
He is a good man. He is a good installer and he tries." So
Frazier was "hired back" by Respondent's President
Mendelson on November 5 as an installer at $3.45 an hour.
Prior to October 22, 1974, Riibner asked Stephen Savoy,
installation manager of the Hyattsville store, whether
Savoy knew about the Union or a union being formed and
whether Savoy was for or against a union. But Riibner
denies that he ever talked to Kenneth Chambers or any
other employees about union activities at Respondent's
stores.
Respondent 's president , Jerry Mendelson, gave testimo-
ny for it substantially as follows. The Union's letter of
September 16, 1974, requesting recognition (see G.C. Exh.
3) came to him after the RC petition (Resp. Exh. 2) had
been filed. This is because said letter was addressed to him
at the Rockville store whereas his office is located in
Respondent's headquarters in Silver Spring, Maryland. But
the mail receipt was signed on September 17 by Manager
Santiago. (See G.C. Exh. 3.) Said RC petition "was the first
indication [Mendelson] had that there was any union
activity at all."
Mendelson explained that although Barranco opposed
retaining Gordon after the latter's taking merchandise
unlawfully, Mendelson and Riibner decided to keep
Gordon on probation for a 3-month period at a reduced
salary. However, Mendelson had no "direct connection
with the events antecedent or prior to [Gordon's] dis-
charge."
As to James Frazier, Riibner told Mendelson that
Frazier desired to be relieved of responsibilities and
wanted to be transferred from Rockville to one of the other
stores. Mendelson approved this and instructed Riibner to
obtain Frazier's request in writing. Later Frazier "left on
his own accord," but Barranco felt that Frazier was a good
employee and should be brought back. So Mendelson
requested Frazier to return to work. About 2 to 2-1/2
weeks later Frazier did come back to work as an installer.
Continuing, Mendelson claimed that the Union agreed
that bay managers at each store are part of management
although their names appear on a voting list given by
Respondent (see G.C. Exh. 4) to the NLRB as "Carsound
Employees." Said list (G.C. Exh. 4) "included all of the
people that were in the bays" "because Mr. Shooer [of the
NLRB ] asked for a list of everyone in the bay." Although
Mendelson claimed this was not an "eligibility list" as
required by the Board in its letter (Resp. Exh. 2) to
Respondent, he testified that it "is the only list that we
submitted that I am aware of." Said Respondent's Exhibit
2 in pertinent part provides that "a list of names and
addresses of all the eligible voters must be filed by the
employer with the undersigned [William C. Humphrey,
Regional Director ]."
Respondent's vice president, Salvatore Barranco, gave
testimony substantially as follows as a defense witness. He
attended a meeting with Riibner and Mendelson concern-
ing Gordon. Notwithstanding that he favored discharging
Gordon, the other two decided to retain Gordon on a
probationary basis for 3 months.
Further, Barranco considered Frazier as an "asset" and
.,was well worth saving." After Frazier quit he spoke to
Barranco, requesting Frazier's being recalled as an instal-
ler. Consequently, Barranco interceded on Frazier's behalf
and succeeded in inducing President Mendelson in taking
back Frazier.
Candido Santiago is manager of Respondent's Rockville
establishment. An adequate abstract of his testimony is
here set forth. On September 17, 1974, he received by
certified mail the Union's letter requesting recognition.
(See G.C. Exh. 3.) He "re-mailed the envelope" and said
letter to Respondent's bookkeeping department at its
corporate headquarters within a day or two without
opening the envelope.
Michael Gordon worked under Santiago at said Rock-
ville store from about the first of August to mid-September
1974. Santiago was told by Riibner to keep the latter
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"informed as to [Gordon's] attitude" progress as Gordon
"was having an attitude problem" as an installer. Santiago
appraised Gordon's performance as "that of a man that
has been with the company for about three days" and had
problems with Gordon "a minimum amount of once a
day." Such problems included Gordon's "contradicting
every order that was given to him . . . he didn't fill out
control sheets. This was very important . . . his work was
very sloppily done . . . his work attitude was also very
sloppy. We found him asleep in cars on several occasions
... [and] excessive tardiness in coming to work and
leaving before time." Also, Gordon received orders from
Assistant Manager Herson but they were never carried out
by Gordon. And Gordon refused to work on a car because
there were five ants on it and also refused to work on
another car because he did not like its owner, a dealer.
Santiago discussed these shortcomings with Gordon,
who promised to "try to get along better and . . . pay
attention" but this was "all to the contrary of what
happened." Santiago also reported these faults to Riibner.
As a result of Gordon's performance Santiago asked
permission of Riibner to discharge Gordon. Such authority
was given Santiago and he then "dismissed" Gordon on
September 18, 1974. At that time Santiago had received the
Union's letter asking for recognition but he never opened
it. And he was never aware of any union organizational
activities at Carsounds prior to discharging Gordon.
About July 1, 1974, James Frazier was transferred to the
Rockville store as a manager-trainer to instruct and train
employees, "see that the men kept busy in the back," see
that"`the men were on time," and oversee the work of the
men. At first Frazier did a "good job," but about a month
or so later Frazier insisted he did not want this position as
he' "didn't want the obligation that he had to train the
men," and expressed a desire to be transferred back to
Hyattsville. However, Santiago observed that by then
Frazier "was not handling the job," and so the former
spoke to Frazier about this "on several occasions."
Sometime in October, 1974, at a time when Riibner was
at the Rockville store, Frazier told the former, in the
presence of Santiago, that Frazier "did not want the
position." (About a week previously Frazier had so
informed Santiago.) Frazier was delayed and did not arrive
until about 3:30 or 4 p.m. on account of car trouble. Then
Frazier spoke to Riibner. Following this Riibner said to
Santiago that "Mr. Frazier would no longer be with us,"
after which Frazier picked up his tools and left. At this
time Santiago "was aware . . . that there were union
organizational activities going on" because employee
Adams in the latter part of September had so informed
him. Also employee Mun on the same day told Santiago
that "the union was forcing him to sign the card but he
didn't want to." Santiago told Mun that he did not have to
sign , unless he felt like it.
On cross Santiago testified that he once found Gordon
asleep in a car while at work; an "Assistant Manager" also
found Gordon asleep in a car "at least twice"; and Mr.
McAdams found Gordon asleep while at work on "several
occasions ." Also on cross Santiago claimed he first heard
about the Union's organizing campaign "approximately
the 23rd of September, 1974" through McAdams. Further,
on cross, Santiago insisted that at the time Frazier quit
Santiago had no knowledge that Frazier was involved in
union activities. Again, on cross, Santiago asserted that
Respondent had no policy requiring employees working on
cars to compensate it for any damage to cars caused by
them, so that "the company [Respondent] has taken care
of the charge" of correcting such damage. Finally, on
cross, Santiago admitted that Respondent had no sure way
of knowing which employee serviced a car when the owner
of said car came in later to complain that it had been
damaged while being worked on by Respondent's employ-
ees.
Another witness for Respondent is Walter McAdams. In
substance he gave the ensuing testimony. He commenced
his employment with Respondent, which has been con-
fined to its Rockville store, in November 1973. When
Frazier on about October 11 "left the company," Mc-
Adams "assumed that title and after that . . . was given the
position" of installation manager at said store. Prior to that
McAdams was a "regular installer , and . . . also did road
work" by installing at the places of dealers doing business
with Respondent.
While Gordon worked at Rockville from August to
September 18, 1974, McAdams was "able to observe Mr.
Gordon's job performance." According to McAdams such
job performance was poor, and gave an example of such
inadequacy by Gordon. It need not be detailed here.
McAdams also "many times" found Gordon "asleep in the
cars, or just relazing [relaxing?] in the cars with his eyes
closed," and "pointed this out" to Santiago and Riibner.
Further, McAdams agreed, without repeating, with Santia-
go's testimony above describing Gordon's "conduct and
job performance."
McAdams also was "familiar with" James Frazier when
the latter was an installation manager for Respondent.
During this time McAdams was "a subordinate to Mr.
Frazier." "It really didn't matter [to Mr. Frazier] whether
you filled out a check sheet [G.C. Exh. 2 ] on the car or not
or disconnected the battery," so that under Frazier "there
was no enforcement . . . as far as check sheets went." In
other words, "it didn't matter to [Frazier] whether that was
checked out or not." However, McAdams himself also did
not fill out a check sheet on a car except "when [he ]
deemed it necessary."
About 3 or 4 days before the election held on the
Union's RC petition McAdams, at that time holding the
position of installation manager for Respondent's Rock-
ville store, "asked Santiago if he knew anything about the
organization of the Union" so as "to find out first of all
what the Union would offer me." McAdams signed a
union card at the request of Frazier. After Gordon was
fired he held a union meeting at his home. McAdams, then
an installation manager , went to that meeting with Frazier.
The union representative present was Kenneth Chambers.
"After [McAdams] became part of management" he told
Santiago "that Kenneth Chambers was the representative."
McAdams was interviewed by a representative of the
Board in connection with this case . Later such representa-
tive brought a typed statement or affidavit for McAdams
to sign. Since such person "apparently was in a hurry," this
caused McAdams to sign such paper after "glancing over
CARSOUNDS 1357
it" but without reading it . See General Counsel 's Exhibit 6
for such statement . It indicates Santiago engaged in
unlawful interrogations of employees.
"Before Mr. Frazier was fired " McAdams told Santiago
that employee Mun, an installer , was being pressured to
sign a union card which Mun "did not know what it really
was about ." So McAdams asked Santiago if it "would be
all right if Mun talked to " Santiago . As Santiago answered
this in the affirmative , McAdams told Mun that Mun
"would have to bring up the subject of the Union" with
Santiago.
C. General Counsel 's Rebuttal
Robert H. Pruett, a business representative for the
Union , testified substantially as follows as a witness in
connection with the General Counsel's rebuttal . The Union
submitted to the Board 's Regional Office in Baltimore,
Maryland , authorization cards which had been procured
from Respondent 's employees. He distributed such cards
on September 3, 1974, and got back 14 signed cards on
September 16. Said 14 signed cards were handed to him by
Kenneth Chambers.
On October 11 he received a copy of General Counsel's
Exhibit 4 , which is a list of Respondent 's employees, from
the Board 's agent in Washington, D.C. According to
Pruett, General Counsel 's Exhibit 4 is "the Excelsior List of
the employees at Carsounds," i.e., the list of those
employees eligible to vote in the Board -conducted election.
Pruett told the Board agent that , in order to avoid a
hearing on the RC petition , Pruett agreed to exclude
installation managers Savoy and Stears as voters. At the
election the Union challenged voters Seavey and Mc-
Adams.
Another rebuttal witness is Stephen Savoy, a summary of
whose testimony is set forth at this point. He was made an
installation manager by Respondent 3 or 4 days before the
election . Savoy knows of two employees who were charged
or could be charged by Respondent for damaging cars they
worked on, viz, Robert Murray , an installer , and Janice
Martin , an assistant manager at the Hyattsville store.
Murray was so charged and made to pay for his damage,
but Martin was not.
Still another witness on rebuttal was Kenneth Chambers.
His testimony may be adequately condensed as follows.
General Manager Riibner addressed a group of employees,
including Chambers , telling them that Steve Savoy became
an installation manager "about three or four days before
the election on October 22nd."
Another rebuttal witness is Michael Gordon . A sufficient
abridgment of his testimony follows . He denies disobeying
orders of Respondent except that (a) he once refused to go
to a car dealer's to pick up a car because on those days he
was using his roommate 's car to travel and did not want to
drive the roommate's car anywhere from 5 to 15 miles
away to reach the dealer's premises ; and (b) he refused to
allow his own car to go to a dealer 's premises because some
one else would have to come to said dealer 's in Gordon's
car to pick him up after Gordon delivered the dealer's car.
As to (b) above, he did not want others to drive his car
since on one occasion an employee of Carsounds who
drove his car to return him from a dealer 's place "had
problems driving his car," and he "thought there might be
problems" again if someone else operated his car.
Gordon admits he refused to work on a car because he
"saw ants crawling [all over] it ." In fact other employees
standing around said to him that they would not work on it
because of the ants . Then Gordon called his refusal to the
attention of Santiago , claiming that General Manager
Riibner "told us that when cars like this come in with bugs
... on them that we're not supposed to work on them."
Although Santiago told Gordon to work on the car or go
home , Gordon elected to go home and informed Santiago
he did so because bites of ants cause him to "break out
very badly."
In addition Gordon admits he often did not fill out
control sheets for two reasons : (a) "it was the general
practice in our store not to fill out control sheets unless
Herman [Riibner ] was around," and (b) sometimes for
"two or three weeks at a time ... we didn't have any
control sheets ." He also conceded he made "some holes"
on a jeep he worked on the first day he was an installer but
only because Walt McAdams told him to install a radio on
it in a different manner than Gordon had used in the past,
so that Gordon "was having problems with it." Gordon
also claimed that he had bad results on a Caprice he
worked on because there was something wrong with it
which even Riibner and Santiago found impossible to
correct. Further , Gordon insists he never was tardy
reporting to work , or left before the 6 p.m. quitting time,
except once when he left at 4 p.m. because the Jewish
religious holiday he observed started shortly after that.
Gordon also conceded that he dented a car hood when
he accidentally dropped a radio which he was carrying on
said hood . Santiago observed this accident but told
Gordon "not to worry about the dent . . . . No problem."
Finally, Gordon admits refusing to pay for half of some
damage on a car attributed to him and Stearn because he
insisted he was not the cause thereof as he merely "put a
fuse in it [and] it worked fine ." According to Gordon,
Stears ultimately "paid the whole thing."
D. Respondent's Surrebuttal
Unlike most cases tried before me the Respondent
introduced evidence on rebuttal . Its first witness upon this
aspect of its defense was General Manager Herman
Riibner . A summary of his testimony is described here.
Savoy was made an installation manager in May 1974, and
as a result his compensation was increased to $3.50 an
hour . In October 1974, he addressed employees as a group,
informing them that Savoy was "in charge of the bay . .
was in charge of the installations . . . [Savoy] would check
each and every car because we now had the quality control
sheets ... .
Another witness on surrebuttal was Candido Santiago,
manager of the Rockville store . The car which Gordon
claimed was infested with ants did have ants on it, but only
on its trunk and its roof. They were "probably" attracted
thereto by some tree sap on the top of the car. Nevertheless
there were "approximately five or six ants on it." And since
Gordon refused to work on said car Santiago performed
the work on it. Since Gordon refused to perform such work
Santiago assigned him to another car, but Gordon refused
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to service this latter car because he did not like the dealer
who owned it.
E. Concluding Findings and Discussion
In his brief the General Counsel insists that Respondent
is required to plead affirmative defenses in its answer. This
was at one time required by the Board's Rules and
Regulations . But in the late 1950 's those Rules and
Regulations were amended by deleting the foregoing
provision pertaining to affirmative defenses. It follows that,
since such defenses need not be included in an answer, said
contention of the General Counsel is not well taken.
1. As to the discharge of Michael Gordon
It is my opinion, and I find, that Gordon was
discnminatonly discharged because of his membership in,
and activities on behalf of, the Union, and that the reason
given to him for terminating him, i.e., that his work was
,.not good enough for [Respondent's] standards [and
Gordon] had a bad attitude problem," is a pretext to
disguise the true reason. This ultimate finding is based
upon the entire record and the following subsidiary
findings, which I hereby find as facts. In arriving at such
findings I credit Gordon and do not credit Respondent's
evidence to the extent that it is inconsistent therewith.
a. Gordon was not discharged for his purloining certain
merchandise from his employer. It is true, and I find, that
he did unlawfully take such merchandise from Respon-
dent, and that such conduct exposed him to a lawful
termination of his employment. But Respondent expressly
forgave him for such behavior and continued to employ
him thereafter . N.L.R.B. v. The Colonial Press, Inc., 509
F.2d 850 (C.A. 8), decided January 17, 1975, does not
require a contrary result.
b. Respondent entertained union animus, as found
elsewhere in this decision. Of course this attitude towards
labor unions is not only protected by the Act in Section
8(c) but also by the constitutional guarantee of free speech.
N.L.R.B. v. Threads, Inc., 308 F.2d 1, 8 (C.A. 4, 1962);
N.LR.B. v. Howard Quarries, Inc., 362 F.2d 236, 240 (C.A.
8, 1966); J. P. Stevens & Co., Inc., 181 NLRB 666, 667
(1970); N.L.R.B v. Harry F. Berggren & Sons, Inc., 406
F.2d 239, 246 (C.A. 8, 1969), cert. denied 396 U.S. 823.
Nevertheless union animus is a factor which may be
evaluated in arriving at the actual reason inspiring an
employee's being terminated . N.L.R.B. v. Georgia Rug
Mill, 308 F.2d 89, 91 (C.A. 5, 1962); Maphis Chapman
Corporation v. N.LR.B., 368 F.2d 298, 303 (C.A. 4, 1966).
c. Respondent was cognizant of Gordon's union
activity. In the first place I find that the Board's small plant
rule is applicable to Respondent 's operations, i.e., Respon-
dent employed such a small complement of employees at
its Rockville establishment that it is reasonable to infer -
and I do so - that Respondent was aware of union
activity occurring at said store. Angwell Curtain Company,
Inc. v. N.LR.B., 192 F.2d 899, 903 (C.A. 7); N.L.R.B. v.
Joseph Antell, Inc., 358 F.2d 880, 882 (C.A. 1, 1966);
American Grinding & Machine Co., 150 NLRB 1357, 1358
(1965).
In addition, I credit Gordon that when Gordon was
discharged Riibner told him that Gordon had stabbed
Riibner in the back although Riibner had given Gordon a
break, and Santiago said that three employees had
informed him that Gordon talked to them about a union.
This warrants the inference, which I draw, that Respon-
dent was aware of Gordon's union activity. Cf. N.L.R.B. v.
Melrose Processing Co., 351 F.2d 693, 699 (C.A. 8, 1965).
d. Gordon was not warned that his so-called "attitude
problem" and his performance below standard subjected
him to the possibility of discharge. Assuming that Gordon
engaged in such substandard conduct, I find that it was
condoned or overlooked by not alerting him to the fact
that he laid himself open to discharge if he did not
improve. N.L.R.B. v. Melrose Processing Co., supra. Cf.
Draggoo Electric Co., Inc., 214 NLRB No. 120 (1974) ("bad
attitude" of employee a pretext for laying off employee).
When there is added to this failure to warn the fact,
which I find, that Gordon was abruptly discharged at the
height of the Union's organizing campaign, it is reasonable
to infer, and I do so, that the justification announced for
his discharge is a pretext and that the true ground is his
union activity. "The abruptness of a discharge and its
timing are persuasive evidence as to motivation ." N.L.R.B.
v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2,
1957). Accord, N.L.R.B. v. Hawthorn Company, a Division
of Kellwood Company, and New Haven Manufacturing
Company, 404 F.2d 1205, 1210 (C.A. 8, 1969).
e. Of lesser importance in finding pretext is that fact,
which I find, that Respondent terminated an active union
adherent. This often tends to discourage other employees
from becoming interested in a union . "Obviously the
discharge of a leading union advocate is a most effective
method of undermining a union organizational effort."
N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003,
1006 (C.A. 5, 1965). This fact may be appraised in
ascertaining the actual motive prompting or inducing a
termination. N.L.R.B. v. Georgia Rug Mill, supra.
f. In determining the motive behind Gordon's dis-
charge it is desirable to point out that "Direct evidence of a
purpose to discriminate is rarely obtained, especially as
employers acquire some sophistication about the rights of
their employees under the Act." Corrie Corporation of
Charleston v. N.LRB., 375 F.2d 149, 152(C.A.4,1967).
"Nowadays it is usually a case of more subtlety." N.L.R.B.
v. Neuhoff Bros., Packers, Inc., 375 F.2d 372, 374 (C.A. 5,
1967).
g. It is not essential , in order to find Gordon's
termination to be discriminatorily motivated, that it be
attributed solely to his union activity. It is sufficient to find
a violation of the Act, notwithstanding that a valid cause
may have existed justifying his discharge, if a substantial or
motivating ground for his termination was his union
activity. N.LR.B. v. Whitin Machine Works, 204 F.2d 883,
885 (C .A. 1). Cf. N.L.R.B. v. California State Automobile
Association, 442 F.2d 426 (C.A. 9, 1971).
h. I am aware of, and have followed, the principle that
union activity neither confers immunity nor is a guarantee
against being discharged for cause . Charles L Hawkins
[Mitchell transport, Inc.] v. N.L.R.B. 358 F.2d 281, 283-284
(C.A. 7, 1966); and that the Board may not "substitute [its ]
CARSOUNDS 1359
judgment for the Respondent's business judgment" in
dismissing an employee. Thurston Motor Lines, Inc., 149
NLRB 1368 (1964). See, also, N.L R.B. v. United Parcel
Service, Inc., 317 F.2d 912, 914 (C.A. 1, 1963). But, as
found above, I have found that Gordon was discharged, at
least in substantial part, for his union activity
And I have not overlooked the rule that the burden of
proof rests upon the General Counsel to establish that
Respondent violated the Act, that such burden never shifts,
and that the discrediting of any of Respondent's evidence
does not, without more, constitute affirmative evidence
capable of sustaining or supporting the General Counsel's
obligation to prove his case. N.L.R.B. v. Berggren, supra;
Guinan v. Famous Players, 167 N.E. 235, 243 (Mass.). "The
mere disbelief of testimony establishes nothing." N L.R.B.
v. Joseph Antell, Inc., supra. Accord, Council of Bagel and
Bialy Bakeries and its Employer members, 175 NLRB 902,
903 (1969). But see N.L.R.B. v. Walton Manufacturing
Company, & Loganville Pants Co. 369 U.S. 404,408 (1962),
where the Supreme Court indicates that if a witness "is
fabricating . . . there [may be] no alternative but to
assume the truth of what he denies." I have not followed
this dictum in the foregoing Walton case.
2. As to the constructive discharge of James
Frazier
A critical examination of the record herein convinces me,
and I find, that Frazier voluntarily quit his job as a
manager trainee and that Respondent did not cause him to
quit. Hence I find that Frazier was not constructively
discharged for his membership in, or activities on behalf of,
the Union. Thus I find, crediting Frazier, that on October
11, when Riibner asked him, "Does this mean that you
quit?" Frazier replied in the affirmative. But I further find
that, again crediting Frazier, when Barranco on October 14
asked Frazier why Frazier, who had quit as a manager
trainee, did not want to be a manager, the latter replied
that he felt he was "not ... ready . . . yet" and also that
he, Frazier, "did not enjoy giving orders to people."
Patently Frazier, on his own sworn testimony, quit his job
as a manager trainee because he did not want to become a
manager and not because, to quote paragraph 6(b) of the
complaint, "his rate of pay [was] decreased . . . and
[because of] his transfer from the Rockville, Maryland,
store, to the Morningside, Maryland, store."
It is true, and I find, that Respondent was opposed to
unionization of its stores, that Respondent was aware of
Frazier's union activities, and that Respondent committed
unfair labor practices as described elsewhere in this
decision. But I expressly find that none of these facts
contributed to Respondent's desire to transfer Frazier and
to cause him to return to the job of being an installer with a
decrease in salary. As a matter of fact Respondent rehired
Frazier not long after October 11 at a store which Frazier
preferred and at an hourly rate which Frazier demanded
and which was 20 cents more than that offered him. This
does not demonstrate that Respondent was out to "get" or
"harass" Frazier because of his union activities and I so
find.
It is true, and I find, crediting Frazier, that when Riibner
on September 22 asked Frazier if Frazier would be
interested in a union, and the latter replied, "maybe,"
Riibner observed, "That is all I wanted to know." But this
does not imply that Riibner intended to so badly treat
Frazier that Frazier would have to quit. This is because
Frazier continued to work without incident until October
11 when he quit because the manager trainee's job did not
appeal to him. And it is true, crediting Frazier, that
Barranco on October 14, following Frazier's quitting, told
Frazier that Barranco understood Frazier was "trying to
get the Union in." But this does not mean that Respondent
had been seeking to so mistreat Frazier that Frazier would
be obliged to leave its employ. At most it discloses an
attempt by Respondent to ascertain which persons were
promoting the Union at Respondent's stores.
And I further find, crediting Savoy, that on September
23 Riibner informed him (a) that in a conversation with
Frazier the latter told Riibner that Frazier was for the
Union (b) that Riibner did not want a union in the shop,
and (c) that before a union would come in he, Riibner,
would close down the shop. Although this openly manifests
a strong hostility to unions I find that it does not exhibit
any intimation that Riibner was attempting to get rid of
Frazier.
Consequently, I believe, and find, that the General
Counsel has failed to prove that Frazier was illegally
discriminated against in a manner which brought about
Frazier's decision to leave Respondent's employ.
3. As to the 8(a)(1) violations
In arriving at findings set forth in this subsection, I have
credited the General Counsel's evidence relating thereto
and have not credited Respondent's evidence inconsistent
with the General Counsel's.
a. On September 18, 1974, Riibner mentioned to
employee Gordon that Santiago had informed Riibner that
Gordon "was organizing a union here." Then Riibner
asked Gordon, "What is this about a union?" This
interrogation contravenes Section 8(a)(1) of the Act, and I
so find. Soon Santiago joined the other two and stated that
three employees had apprised him that Gordon was talking
to such employees about a union. I am of the opinion that
Santiago's statement impliedly castigates Gordon for
engaging in union activity, and, accordingly, I find it
violates said Section 8(a)(1). Finally, on this same occasion
Riibner stated that he did not want a union at Carsounds.
Since this is an expression of opinion protected by Section
8(c) of the Act, I find that is not forbidden by Section
8(a)(1) thereof.
b. On or about September 18, 1974, Riibner asked
employee ]Kenneth Chambers if the latter knew anything
about the Union's seeking to represent Respondent's
employees and, upon receiving a negative response, told
Chambers that another employee had informed Riibner
that Chambers "was behind" the Union. This latter
constitutes a giving to Chambers the impression that
Riibner was engaged in surveillance or a close watch of
union activities at Respondent's store. Consequently, I find
that Riibner's said utterance to Chambers is partly an
interrogation and partly an impression of surveillance,
both of which are interdicted by Section 8(a)(1) of the Act.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. On September 22, 1974, Riibner telephoned Frazier,
whom I find to be an employee under the Act because his
authority was merely of a routine nature and did not
require the use of independent judgment, asking Frazier if
the latter had passed out any union cards and whether
Frazier would be interested in a union. Riibner in his
testimony admits he asked Frazier if Frazier was for or
against a union and "about the union or a union being
formed." I find that such language by Riibner constitutes
interrogation of an employee which transgresses Section
8(a)(1) of the Act.
d. On October 14, 1974, Barranco told Frazier that the
latter was trying to get the Union into Respondent's stores
and added that, when Barranco "had' a union" he,
Barranco , "paid more than [the union] was paying." Since
Frazier on October 11 had quit, so that he was not an
employee when this conversation occurred, I find no
violation of the Act in Barranco's said expressions.
Nevertheless, ] do find that they reveal hostility to unions.
e. On September 23 Riibner telephoned Savoy, the
installation manager at Respondent's Hyattsville' store. I
find that Savoy was an employee and not a supervisor, as
the duties he performed in relation to installation employ-
ees were "merely routine" and did not "require 'the use of
independent judgment" as set forth in Section 2(11) of the
Act. In this discourse Rubner asked Savoy if Savoy knew
anything "about a union that was going around" and
questioned Savoy as to how Savoy felt about a union.
Riibner testified substantially to the same effect. I find that
this interrogation exceeds permissible talk under Section
8(c), so that it is condemned by Section 8(a)(1), of the Act.
Continuing, Riibner stated to Savoy that Gordon "had
everyone sold on the union up there in Rockville" and
averred that he, Riibner, did not believe a union would be
"helpful to," or "any better" for, the employees. As this
statement does not contain a threat of reprisal or promise
of benefit I find it is protected by Section 8(c), and
therefore does not contravene Section 8(a)(1), of the Act.
Also, Riibner claimed that Frazier was for the Union. For
the same reason I find that this does not transgress said
Section 8(a)(1). Then Riibner told Savoy that Frazier told
Riibner that he was for the Union, but that Riibner did not
want the Union in the shop and would close down the shop
"before a union would come in." The last part of the
foregoing sentence contains a threat of reprisal and,
therefore, violates Section 8(a)(1) of the Act. Finally,
Riibner asked Savoy if he knew anything about the union
cards and added that if Savoy heard anything about the
Union to let Riibner know. These last two questions
transgress Section 8(a)(1) of the Act, and I so find.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of Respondent set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection 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 labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
As Respondent has been found to have engaged in
certain unfair labor practices I shall recommend that it be
ordered to cease and desist therefrom and that it take
specific action, as set forth below, designed to effectuate
the policies of the Act.
As it has been found that Respondent unlawfully
terminated Michael Gordon, it will be recommended that
Respondent be ordered to offer him immediate and full
reinstatement to his former position, or, if such is not
available, one which is substantially equivalent thereto,
without prejudice to his seniority and other rights and
privileges. It will also be recommended that Gordon be
made whole for any loss of earnings suffered by reason of
his being discharged.
In making Gordon whole Respondent shall pay to him a
sum of money equal to that which he would have earned as
wages from the date he was terminated to the date he is
reinstated or receives a proper offer of reinstatement, as the
case may be, less his net earnings during such period. Such
backpay, if any, is to be computed on a quarterly basis in
the manner established in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon at 6 percent per
annum calculated according to the formula announced in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will
also be recommended that Respondent preserve and make
available to the Board or its agents, upon reasonable
request, all pertinent records and data necessary to aid in
analyzing and determining whatever backpay may be due.
Finally, it will be recommended that Respondent post
appropriate notices.
In my opinion the facts unfolded by this record do not
reflect a general disregard of or hostility to the Act, and I
so find. Accordingly, I find that a broad remedial order
against Respondent is not warranted. Rather, I find that it
will effectuate the policies of the Act to enjoin Respondent
from repeating the conduct found above to be violative of
the Act and similar or like conduct.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act.
3. By discriminating in regard to the tenure of
employment of Michael Gordon, thereby discouraging
membership in the Union, a labor organization, Respon-
dent has engaged in an unfair labor practice condemned
by Section 8(a)(3) and (1) of the Act.
4. Respondent committed unfair labor practices forbid-
den by Section 8(a)(1) of the Act by (a) coercively
interrogating employees regarding their and other employ-
ees' umon membership and activities, (b) threatening to
close its plants if the Union organized said plants, and (c)
giving the impression of engaging in surveillance of union
activities by its employees.
CARSOUNDS 1361
5. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
6. Respondent has not committed any other unfair
labor practices as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby make the following recommend-
ed:
ORDER'
Respondent, KBM Electronics, Inc., t/a Carsounds,
Rockville, Hyattsville, and Morningside, Maryland, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any other
labor organization, by discharging employees or otherwise
discriminating in any manner in respect to their tenure of
employment or any term or condition of employment.
(b) Coercively interrogating employees concerning their
and other employees' union membership and activities.
(c) Threatening to close any of its stores or take other
reprisals if its employees choose a collective bargaining
representative.
(d) Creating the impression of surveillance of the
activities of the Union at Respondent's stores or the
concerted activities of its employees conducted for the
purpose of collective bargaining and other mutual aid and
protection.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Michael Gordon immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent one, without prejudice to his
seniority and other rights and privileges previously enjoyed
by him, and make him whole for any loss of pay he may
have suffered by reason of Respondent's discrimination
against him, with interest at the rate of 6 percent, as
provided in the section above entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records and reports and all other records necessary
to ascertain tote amount, if any, of backpay due under the
terms of this recommended Order.
(c) Post at its places of business at Rockville, Hyattsville,
and Morningside, Maryland, copies of the notice marked
"Appendix." 2 Copies of said notice, to be furnished by the
Regional Director for Region 5, after being signed by a
duly authorized representative of Respondent, shall be
posted 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.
(d) Notify the Regional Director for Region 5, in writing,
within 20 clays from the receipt of this decision, what steps
have been taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Board 's Rules and Regulations , the findings , conclusions , recommenda-
tions, and Recommended Order herein shall, as provided m Sec 102 48 of
said Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
2 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words m 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 in 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
We hereby notify our employees that:
WE WILL NOT discourage membership in District
Lodge No. 67, International Association of Machinists
& Aerospace Workers , AFL-CIO, or any other labor
organisation , by discharging employees or otherwise
discriminating in any manner in respect to their tenure
of employment or any term or condition of employ-
ment.
WE WILL NOT interrogate our employees concerning
their and other employees' membership in or activities
on behalf of the above District Lodge No. 67.
WE WILL NOT threaten to close any of our stores or
take other reprisals if our employees choose a collec-
tive-bargaining representative.
WE WILL NOT create the impression that we are
engaging in surveillance of the activities of said District
Lodge No . 67 at our stores or the concerted activities of
our employees conducted for the purpose of collective
bargaining and other mutual aid and protection.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
or rights guaranteed to them in Section 7 of the
National Labor Relations Act.
WE WILL offer to Michael Gordon immediate and
full reinstatement to his former job or , if such job no
longer exists , to a substantially equivalent one, without
prejudice to his seniority and other rights and privileges
previously enjoyed by him, and make him whole for
any loss of pay he may have suffered by reason of his
discharge , with interest thereon at the rate of 6 percent
per annum.
All our employees are free to become , remain, or refuse
to become or remain , members of said District Lodge No.
67, or any other labor organization.
KBM ELECTRONICS, INC.,
T/A CARSOUNDS