Crandall-Hicks of Wellesley. Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1970

185 N.L.R.B. 55 (N.L.R.B. 1970)

CRANDALL-HICKS OF WELLESLEY
Crandall-Hicks of Wellesley. Inc. andDistrict Lodge
No. 38 , International Association of Machinists
and Aerospace Workers , AFL-CIO. Cases 1-CA-
6766 and 1-RC-10,669
August 21, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
On March 25, 1970, Trial Examiner Henry L.
Jalette issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also found
that the Respondent had not engaged in other unfair
labor practices alleged in the complaint and recom-
mended that such allegations be dismissed. In addition
he found that Brian Beetlestone was not a supervisor
and that his challenged ballot should be opened and
counted. Further he found that since Robert Burns
was unlawfully discharged his ballot should be opened
and counted.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in these cases, and hereby adopts
the findings,2 conclusions, and recommendations of
the trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
' A case presenting related issues, 1-RC-10669, was severed by the
Trial Examiner and remanded to the Regional Director for Further
action
' We agree with the Trial Examiner's finding that the Respondent
was aware of the concerted and union activities of its employees Donald
Flannery and Robert Burns However, in the absence of record evidence
that Burns discussed the scheduled union meeting with the employees
after his return to the shop on June 12, 1969, we do not adopt the
Trial Examiner's finding that the Respondent was aware that a union
meeting had been scheduled for the evening of the following day
55
tions Board adopts as its Order the Recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Crandall-Hicks of Wellesley, Inc.,
Boston, Massachusetts, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Henry L. Jalette, Trial Examiner On August 15, 1969,'
a complaint issued against the above-captioned Employer
alleging that it had engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by discharging Donald
Flannery and Robert Burns for having engaged in concerted
activities and by promises of economic benefits to employees
on June 16.1 The complaint was based on a charge and
amended charge filed by the above-captioned Union on
June 27 and August 6, respectively.
Pursuant to an agreement for consent election executed
on August 26 in Case 1-RC-10,669 an election was held
on October 2 in a unit of the Employer's employees in
which Robert Burns and Brian A. Beetlestone cast chal-
lenged ballots which were determinative of the results of
the election.' Beetlestone 's ballot was challenged by the
Union on the ground he was a supervisor and Burns'
ballot because he was not on the eligibility list, having
been discharged on June 13 Burns' eligibility depends
on the determination of the complaint allegations that he
was discharged because of his concerted activities.
On November 5, the Regional Director issued a Report
on Challenges resolving, inter alra, the challenge to the
ballot of Beetlestone . On November 10, the Employer filed
a motion to reconsider in which a hearing was requested.
On November 20, the Regional Director granted the motion
and issued an order consolidating the complaint and repre-
sentation cases for hearing before a Trial Examiner, the
representation case to be severed upon issuance of the
Trial Examiner's Decision for further action by the Regional
Director in accordance with article 6 of the agreement
for consent election.
On December 17 and 18, a hearing was held before
me in Boston, Massachusetts.
Upon the entire record, including my observation of
the witnesses, and after due consideration of the briefs
filed by General Counsel and Respondent, I make the
following:
' All dates appearing hereinafter are for the year 1969, unless otherwise
indicated
' The complaint also alleged that Respondent made promises of econom-
ic benefits to employees at dinner meetings on June 17, 18 and 19
(par 8(d)). At trial, pursuant to motion of General Counsel, par 8(d)
was stricken
' The revised tally of ballots shows that 15 valid votes were cast
for, and 14 valid votes against, representation by the Union (Petitioner)
185 NLRB No. 1
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDING OF FACTS
1. THE BUSINESS OF RESPONDENT
Respondent is a Massachusetts corporation engaged in
the sale, repair , and distribution of automobile and related
products with its principal office and place of business
in the town of Wellesley , Massachusetts . Respondent in
the course and conduct of its business operations annually
receives automobiles and parts valued in excess of $50,000
from points located outside the Commonwealth of Massa-
chusetts and annually has gross retail sales of automobiles
in excess of $500 ,000. Respondent admits, and I find,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
iI. THE LABOR ORGANIZATION INVOLVED
District Lodge No 38, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
IIi. THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
After lunch on June 10, the following petition signed
by 22 of Respondent's employees was turned over to General
Manager Dorrwachter: "The employees of the Crandall-
Hicks Company of Wellesley request that a general meeting
be called on June 11, 1969 at 12 p.m. in the lunch room.
The reason for this meeting to be called is to give the
employees of the Crandall-Hicks Company a chance to
air their grievances, and to discuss a twenty cent an our
raise."
The petition had been prepared by employees Donald
Flannery and James L. Rogers, both of whom solicited
signatures to it. After it had been circulated, Flannery
gave it to Shop Foreman Brian Beetlestone.
Thereafter, the employees were assembled in a group
and addressed by Dorrwachter who told them that he
was not prepared to meet the next day and that he could
not make a decision and come up with something in a
24-hour period, but he would do so before the end of
the week. Flannery objected to the delay and Dorrwachter
reiterated what he had said before
On June 11, during the lunch period, the employees
met in the lunchroom and signed another paper which
stated:
We the undersigned employees of Crandall Hicks of
Wellesley are in favor of an employee's organization
to represent us!
This was signed by 21 employees. In the discussion that
accompanied the signing, mention was made of the Union,
and Robert Burns mentioned that he knew Joe Cuskey,
a representative of the Union, and he gave Cuskey's card
to Flannery.
That same afternoon, Flannery received a telephone call
that his son had fallen and had injured himself on his
way from school. He told Shop Foreman Beetlestone and
Service Manager Charles Macero and received permission
to leave. The child spent the night at the hospital and
was released the following morning. That morning Flannery
was 45 minutes late for work. Immediately after his arrival,
he was called to Macero's office and was discharged. Macero
told him he had been warned and that he was late again.
Flannery explained about his son being in the hospital
and Macero told him that was no excuse.
On Thursday, master mechanic Robert Burns met with
Union Representative Cuskey at a nearby Ford dealership
and they arranged for a meeting of employees in the lot
of the dealership for Friday, 5:30 p.m.
On the morning of June 13, Respondent posted a
schedule of meetings to be held in four groups of employees
(master mechanics, B. mechanics, parts men, and body
shop employees), listing the names of all employees in each
group. The meetings were to be held at a local restaurant
after working hours with the master mechanics scheduled
for the first meeting to be held Monday, June 16 It appears
there was opposition to a supper meeting, and Burns, in
particular, told Macero around 1:30 or 2 p in. that he would
be unable to attend At 5 15 p.m , Burns was called to
Dorrwachter's office and discharged
A meeting between Dorrwachter and the master mechanic
was held at 11 a.m, Monday, June 16. The employees
discussed complaints about service in the parts department
and complaints about the bonus system pursuant to which
they were paid. Under the existing system, they received
a guaranteed hourly rate, plus $5 for each percentage
point by which their productivity exceeded a standard
of 90 percent efficiency. Dorrwachter suggested that until
a substitute plan could be developed each mechanic would
be guaranteed a $75 monthly bonus This represented an
average of what a master mechanic might receive as a
monthly bonus under the existing formula.
B. Analysis and Conclusions
Flannery was employed by Respondent and its predeces-
sors for almost 5 years. There is no dispute about the
quality of his work and during the 5-month period preceding
his discharge he twice received the general manager's $100
monthly bonus for top production Flannery had an egre-
giously bad tardiness record, 'but it had long been condoned.
Respondent contends that its condonation of Flannery's
tardiness ended when Service Manager Macero warned
Flannery in late May that if he were late again without
excuse he would be fired. While the record supports a
finding that Macero spoke to Flannery about his tardiness
in late May, it does not support a finding that he gave
Flannery an express warning . I specifically asked Macero
whether he had expressly warned Flannery and he replied,
"That's exactly what I meant. That's exactly what he
realized." Moreover, Flannery was late thereafter (3 minutes
June 3, 25 minutes June 5, 3 minutes June 9, and 2
4 For the period from July 5, 1968, to the date of his discharge,
excepting the periods from March 21 to 27 and April 4 to May 9
for which no timecards were submitted , Flannery was tardy 149 times,
93 of which were in excess of 15 minutes
CRANDALL-HICKS OF WELLESLEY
1/2 minutes June 11) and nothing was said to him about
it. In these circumstances, it is evident that Macero's admoni-
tion to Flannery in late May was not a final warning.
Yet, on the morning of June 12, despite the fact that
he knew Flannery had left work early the day before
because of an injury to his boy, Macero discharged him
summarily without waiting to learn whether Flannery had
a good excuse.' Such precipitate action after such a long
period of condonation immediately after Flannery's concert-
ed activities can only be attributed to those activities.
Flannery was not only one of the instigators of the
petition of June 10, but also he objected to Dorrwachter
about a delay in meeting with him. He was responsible
for a petition for representation by an employee's organiza-
tion which was signed by 21 employees on June 11 in
a meeting in the lunch room, and he was the individual
to whom Burns gave the business card of the union represent-
ative. There is no direct evidence that either Macero or
Dorrwachter knew about this meeting, and Macero denied
knowing about it I do not credit him. The lunch room
is only about 200 square feet in size and is not normally
used by a large number of employees at one time. Given
the location and time of the meeting and the facts that
it followed by one day the presentation of an employee
petition and that it was attended by about 21 employees
in a unit of about 31 employees, the inference is warranted
that both Macero and Dorrwachter learned of the meeting
and its purpose.
In reaching the conclusion that Flannery was discharged
because of his concerted activities, I have weighed Dorr-
wachter's testimony that in early May the decision was
made to discharge him and Burns when replacements could
be obtained. Apart from the fact that I was not impressed
by Dorrwachter's demeanor, his testimony about the alleged
early May decision is patently unbelievable.' According
to his own testimony, later that same month Burns received
a $50 bonus for bringing in a mechanic, yet neither Burns
nor Flannery was discharged in accordance with the early
May decision. I can understand a reluctance to rely on
that new employee as a replacement for Burns, but why
not for Flannery who was coming to work late nearly
every day during May? Even more, a new mechanic, Frank
Santin, was employed on June 6, and although he is alleged
to be one of the replacements for Flannery or Burns,
there is no explanation why neither Flannery or Burns
was told on June 6 that he was discharged.' This resorting
to false defenses supports a finding that the true reason
for Flannery's discharge was his concerted activities.
' I was not persuaded by Flannery's excuse, but that is immaterial
since Macero had not bothered to discover what it was before discharging
him
6 Macero's testimony on this subject is too indefinite to constitute
corroboration He did not state on direct examination that such a decision
was made, and his answer to General Counsel's question on cross-
examination was ambiguous and appears to relate to Macero's warning
to Flannery which occurred in late May, rather than an early May
decision
' At one point in Dorrwachter's testimony, it was unclear when Frank
Santin reported to work. At a later point, Dorrwachter indicated it
was June 6 , and Santin 's name appears on the petitions signed by the
employees on June 10 and 11
57
In Burns' case, the evidence of unlawful motivation is
more compelling because there was no showing that there
existed a cause for discharge.
Burns, a master mechanic, was employed by Respondent
for about 31/2 years before his discharge on June 13.
On that day, without prior warning, he was discharged
by Dorrwachter and given the following reasons: "It has
to do with your attitude and your conduct and the way
you conduct yourself and our inability to get along together
peaceably, and those are the reasons. . . I think you
are too aggressive . . . . You have been very belligerent.
It is evident that there is no substance in the words
chosen by Dorrwachter to discharge Burns. They have
meaning only as they are attached to examples of Burns'
conduct None was given that related in any way in point
of time to the date of the discharge.
First of all, there is the charge that Burns had refused
to push a car out of a snowbank 6 months earlier, a
charge admitted by Burns with the reasons for his refusal.'
At the time of the incident, Burns was not reprimanded.
Another example of Burns' misconduct was his unauthor-
ized absence from work on April 26, Patriot's Day, a
matter about which he was warned. There was no repetition
and Dorrwachter did not mention this in his terminal
interview.
Then there is testimony that Burns created a noise disturb-
ance in the shop on some unspecified date in late May
in which he was joined by other employees. Although
allegedly the instigator, and although it appears that Burns
had engaged in similar conduct on other occasions, Burns
was not reprimanded individually but only as part of the
group who participated.
Next, there is Dorrwachter's testimony that Burns threat-
ened to refuse work assignments; however, not only did
he not say when this occurred, but also, in testifying further
on this matter, he clearly indicated that Burns had not
refused any work assignments and that his testimony was
based on a feeling that Burns was "going to threaten
to refuse."
Another example was Burns' alleged attitude about com-
pany insurance ; that is, Burns would "ride out a benefit
program to its maximum limits, and he made statements
like this to other people in the shop." This implication
that Burns was a malingerer was supported by reference
to an incident a year earlier when Burns, to protect his
family from injury from a firecracker thrown in his direction
at a July 4 celebration, had placed his hand over the
firecracker and it had exploded in his hand On what
Dorrwachter based his claim of malingering is not clear;
it is clear, however, that he never confronted Burns with
such as accusation, either then or at any later time.
Finally, Burns was described as an habitual complainer.
This allegation paralleled the one given by Service Manager
' This reason for discharge was one of those used by Dorrwachter
in Burns' version of the termination conversation Dorrwachter did not
include this in his version but did not deny referring to the incident
Service Manager Macero did not testify about the terminal conversation,
although he was present I credit Burns
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Macero, whose contribution to the litany of adjectives
descriptive of Burns' misconduct was that Burns was argu-
mentative. When asked what Burns had done in the week
immediately preceding his discharge to explain why he
was suddenly discharged, Macero's only answer was, "The
same thing he always did.... The same thing, arguments
here and there on certain repair orders."
The lack of specificity in the charges against Burns,
the staleness of the charges where specificity was tried,
and the absence of any warning are evidentiary factors
that support a finding that Burns' discharge was motivated
by reasons other than his work performance. When these
factors are weighed in the light of the timing of the discharge,
it is evident that Dorrwachter's reference to Burns' attidude,
his aggressiveness , and his belligerence was a reference
to Burns' rejection of Respondent's plan to deal directly
with employees and Burns' preference for dealing with
an outside organization.
I have already indicated that an inference was warranted
that Dorrwachter and Macero knew about the lunch room
meeting of June 11 and the discussion of the employees.
Burns was not only a signatory to the petition of the
employees expressing a desire for representation by an
employee's organization, but also he gave impetus to the
petition by supplying the business card of the union repre-
sentative for future contact and by offering to obtain an
answer to questions posed about initiation fees.
I also find that Dorrwachter knew of the union meeting
scheduled for 5:30 p.m. that day. As noted earlier, after
the lunch room meeting Burns met with a union representa-
tive and arranged for a meeting of employees on a nearby
automobile lot at 5:30 p in on Friday. There is no evidence
of the way in which he notified fellow employees about
the proposed meeting , but it is reasonable to assume that
he did so at the shop and that Respondent learned of
the meeting.' Apart from that, the timing of Dorrwachter's
action strongly supports an inference of knowledge. All
the reasons assigned by Respondent for discharging Burns
were known to it before it posted a schedule of employee
meetings for June 16 which included Burns' name. The
only thing that happened thereafter was Burns notification
he would not attend the employee meeting and his plan
to attend the union meeting after work.
In the final analysis, there is no explanation for Burns'
discharge on Friday except his union activities. Dorrwacht-
er's explanation that since Flannery had been discharged
he decided he might as well implement the early May
decision to discharge them both is no explanation. Why
did he not discharge Bums on Thursday when Flannery
was discharged? Flannery 's time cards and Respondent's
Exhibit 1 indicate that the work week ends on Thursday.
Moreover, I have already pointed out that Dorrwachter's
explanation that the delay in discharging Flannery and
Burns was occasioned by a need to obtain replacements
does not withstand analysis. Thus, even if Santin were
conceded to be a replacement for Flannery, by firing Burns
on June 13, Respondent was still left with one mechanic
" It is clear employees learned of the meeting because Macero admitted
he saw most of the employees gathered at the parking lot after work
short because the so-called second replacement was not
scheduled to report to work until late June. Since Respond-
ent had allegedly been forbearing with Burns since early
May, and he had not engaged in any conduct requiring
that his discharge be expedited, why did Respondent not
wait?
Respondent contends that a finding of a violation in
this case can only be derived from inferences, coupled
with a disbelief in the reasons advanced by its witnesses
relative to the discharges. Is this not always the case?
In my judgment, the testimony of Macero and Dorrwachter
about the reasons for the discharge of Bums and Flannery
is patently unbelieveable and is belied by their conduct,
which is a more reliable guide to their motives.
"It is well known that a given fact may be proven
indirectly as well as directly. If one can show that every
other alternative except the fact sought to be proven is
not true, you indirectly prove that fact is true. By excluding
every other reasonable hypothesis that fact is left standing
alone as proved. The evidence before the Board aimed
at this goal. By showing that there was no other reasonable
explanation for Miss Thieles not being rehired, her union
activity stood out as the logical explanation of her employer's
action. While this method is not infallible, it succeeds
in providing circumstantial evidence to illuminate the issue."
The foregoing quotation from N. L.. R.B. v. Melrose Processing
Co., 351 F.2d 693, 698 (C.A. 8) is illustrative of the
process by which I have concluded that Flannery and
Bums were discharged because they engaged in concerted
activities.
In the case of Flannery, the condonation of his tardiness
record, the fact that after a warning about improving his
habits he continued to be tardy without comment (including
25 minutes late on June 5), and that he was summarily
discharged on June 12 when Macero had reason to believe
there was a good excuse and did not even bother to check
are factors which, taken together with Flannery's concerted
activities of June 10 and 11, compel the conclusion that
the tardiness of June 12 was used as a pretext to fire
Flannery for his concerted activities.
In the case of Burns, I have eliminated as reasons for
discharge the asserted reasons of "attitude," "belligerent,"
and "aggressive ," because they are meaningless labels which
can apply equally to an employee's protected activity and
to misconduct on the job . In my opinion, Respondent's
asserted reasons were , in fact , an oblique reference to Burns'
concerted activities . I have eliminated the specific items
of misconduct relied on by Respondent because of their
staleness and the absence of any reprimands or warnings.
I am left with a discharge action that relates in point
of time to only one act of Bums; namely, his concerted
activities. Perforce, considering the fact that Burns had
never been warned that his attitude , or aggressiveness,
or belligerence would lead to his discharge , and considering
the timing of the discharge I conclude that the discharge
was motivated by Bums' concerted activities.
In rejecting Respondent 's defenses , I have weighed the
fact that there is no evidence of union animus or of animus
CRANDALL-HICKS OF WELLESLEY
toward protected concerted activities. " It is not essential
that there be evidence of such animus. As stated in Terry
Industries of Virginia, Inc., 164 NLRB 872, 874, enfd.
403 F.2d 633 (C.A. 4):
In the ordinary case, the General Counsel is able
to point to other antiunion conduct of the employer
as support for the inference that union activity was
the real reason for the discharge which the employer
sought to explain on false grounds. In this case .
. I find that apart from the discharges themselves,
the Company engaged in little overt antiunion conduct.
But just as the showing of other antiunion conduct
is of some support, but is not conclusive, in establishing
that a particular discharge was for union activity,
so the comparative absence of such conduct is not
conclusive in establishing that a discharge was not
for union activity. A contrary rule would mean that
an employer could discharge union leaders with impuni-
ty if he refrained from other acts of hostility to the
union The ultimate question is what was the reason
for the discharge, and the presence or absence of
other antiunion actions is an aid to answering the
questions, not an answer in itself. [Footnote omitted.]
Accord N L R.B v Mrak Coal Company, Inc, 322 F.2d
311, 313 (C.A. 9), where the court held that it could not
"accept the respondent's theory that proof or lack of proof
of prior anti-union animus is controlling explaining that
such a rule would automatically always insulate the first
unfair labor practice charged against an employer." See
also N L R.B. v Tepper, d/b/a Shoenburg Farms, 297
F.2d 280 (C A. 10).
Finally, I have weighed the fact that there is no showing
of discrimination against either the employee who, with
Flannery, sponsored the petition of June 10 or against
the office employee who prepared the petition on company
stationery. However, as stated in N.L.R.B. v. Puerto Rico
Telephone Co., 357 F.2d 919, 920 (C.A. 1), "A violation
of the Act does not need to be wholesale to be a violation.
[Cases cited.]" Moreover, Burns' and Flannery's activities
differed in degree and kind from those of other employees.
It was Burns who produced the business card of a union
representative and it was Flannery who received it. It
was Burns who arranged for a meeting with the union
representative at 5:30 p.m, Friday and who refused to
attend the meeting between management and the employees
which Dorrwachter scheduled.
The complaint alleges that Flannery and Burns were
discharged because of their concerted activities, and
Respondent contends that I am thereby precluded from
10 General Counsel contends in his brief that the adjustment adopted
by Dorrwachter on June 16 had the effect of causing four of the five
master mechanics to lose money and this constituted 8(a)(1) conduct.
This contention is wholly without merit The complaint does not allege
such a violation To the contrary, it alleges that the very same adjustment
which General Counsel now contends was a loss of earnings was a
promise of benefit While the record appears to show a reduction of
bonuses for a period of 1 month, the adjustment was the result of
a mutual agreement between the employees and Dorrwachter There
is no evidence of a purpose on Respondent's part to interfere with,
restrain, or coerce its employees in the exercise of their Sec 7 rights
I am recommending dismissal of the independent 8(a)(1) allegation based
on the adjustment agreed to between Respondent and the employees
59
considering Burns' "union activities " in determining motive
for his discharge . I find no merit in this contention. The
issues were fully litigated , and I note that Respondent
did not object to the evidence elicited by General Counsel
relative to the activities aimed at obtaining union representa-
tion . Moreover , while General Counsel eschewed use of
the words "union activities " and eschewed amending the
complaint to allege an 8(a)(3) violation , he stated clearly
on the record that he was relying on those activities which
had been described in the record . In certain situations,
and this is one of them , the terms "concerted activities"
and "union activities" are interchangeable, and an allegation
of discharge in violation of Section 8(a)(1) of the Act
encompasses a discharge for union activities . In the circum-
stances of this case , I would be justified in finding that
Burns' and Flannery 's discharges were violative of Section
8(a)(3) of the Act as well as Section 8 (a)(1). Frito Company,
Western Division v. N.L.R .B., 330 F . 2d 458 (C.A. 9);
N. L. R. B. v. Dennison Mfg. Co., 419 F 2d 1080 (C. A. 1);
Laclede Gas Company v. N.L.R. B., 421 F.2d 610 (C.A.
8); Independent Metal Workers Union, Local No. 1, 147
NLRB 1573, 1576. However, since such a finding would
not make any difference in the remedy , I will limit my
finding to Section 8(a)(1) of the Act , including as part
of the concerted activities the activities in favor of, or
aimed at , union representation.
IV. THE CHALLENGED BALLOTS
As noted earlier, Robert Burns and Brian Beetlestone
cast challenged ballots which are determinative of the results
of the election. Burns' ballot was chellenged because he
had been discharged and his name was not on the eligibility
list. Inasmuch as I have found that he was unlawfully
discharged, I shall recommend to the Regional Director
that his ballot be opened and counted.
The challenge of Beetlestone's ballot was based on his
alleged supervisory status. Beetlestone is shop foreman and
admittedly was a supervisor within the meaning of Section
2(11) of the Act prior to January 1 li
Before January 1, the employer was Crandall Hicks Com-
pany, a combined wholesale and retail operation. This opera-
tion was split up to form three corporations, one of which
was Respondent. At a meeting of employees held December
31, 1968, Carl Dorrwachter was introduced as the new
general manager, and he explained the corporate changes
to the employees and the effect of those changes on them.
Dorrwachter also introduced the new service department
manager, Charles Macero, and told the employees that
Beetlestone would be a technical advisor.
According to Dorrwachter, after the meeting Beetlestone
asked him if he was still going to boss the shop and
he was told no. Dorrwachter testified that from the time
of that meeting Beetlestone had no authority to hire, fire,
or discipline employees, nor had he done so. As a technical
" Dorrwachter attempted to show that after January 1, Beetlestone
was a technical advisor and not shop foreman. It is clear from all
the evidence, including Dorrwachter's preheanng statements , that whatev-
er Beetlestone's authority may have been after January 1, he was still
shop foreman
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advisor, his duties consisted in road testing car to determine
what service was needed, and, after they were serviced,
to see if they performed satisfactorily. This occupied 40
to 50 percent of his time. Beetlestone was also a trouble
shooter, assisting other mechanics who needed help with
certain jobs. Normally, Beetlestone is not assigned a service
job unless it is one that can be handled quickly. (Beetlestone
does not have a set of tools of his own at the shop.)
In addition, Beetlestone handles customers seeking safety
inspection. This occurs twice a year and lasts 6 weeks
each time.
Service Manager Macero assigns the work either directly
or through Beetlestone. In the latter instance, he will normal-
ly designate which mechanic should receive the assignment.
Frequently, it is not necessary to do so, because the type
of work involved dictates that the assignment go to a
particular mechanic.
In Macero's absence, Beetlestone assigns the work Mace-
ro could be absent for various reasons, vacation, illness,
tardiness, lunch, business. During the period between his
becoming service manager and the date of the election,
Macero was absent 3 days because of illness, took a 2-
week vacation and was absent for other reasons for a
total of about 10 hours.
Unlike other employees, Beetlestone does not punch a
time clock He is paid a weekly salary of $173, plus $20
per week to conduct a training session one evening each
week. If a training session is not held, Beetlestone still
receives the additional $20. Before January 1, Beetlestone
received 1 percent of the salary of each man in the shop
under his supervision plus a bonus based on a formula
geared to the efficiency of the men It is not clear what
Beetlestone's average weekly income was pursuant to that
system, but apparently it was less than he received after
January 1, because he complained and as a result the
training session device was used to add to his income.
The employees are paid an hourly rate plus a bonus based
on productivity and some master mechanics earn as much
or more than Beetlestone.
Beetlestone receives the same fringe benefits as other
employees, except that he is paid if he is absent for a
day or so; if he is ill, he is paid from the first day
of illness whereas other employees are not paid for the
first week. In this regard, Beetlestone enjoys the same
benefits as Body Shop Foreman Wallace, an admitted super-
visor.
I conclude that Beetlestone is not a supervisor within
the meaning of Section 2(11) of the Act. There is no
evidence to contradict the testimony of Dorrwachter that
about January 1 Beetlestone was stripped of his authority
to hire, fire, or discipline employees. While Beetlestone
did not corroborate Dorrwachter that after the December
31 meeting with employees he asked Dorrwachter if he
was still boss and was told no, Beetlestone confirmed that
at some point shortly after Macero became service manager
he was stripped of his authority.
There is no evidence that after January 1 Beetlestone
exercised any supervisory authority such as hiring, firing,
or disciplining employees. If he were to be found to be
a supervisor, it would have to be because he substitutes
for Macero in his absence and assigns work to employees.
The fact that he has substituted for Macero during the
beef period he has been absent is, in my opinion, insufficient
basis to find that he is a supervisor. The principal function
he performs on those occasions is to make assignments
of work and I am not persuaded that this requires the
exercise of independent judgment. Beetlestone testified credi-
bly that when substituting for Macero he has no authority
to hire, fire, or discipline employees. While he gave an
employee permission to take time off on one or two occasions
when Macero was absent, such an isolated exercise of
supervisory authority is insufficient to support a finding
of supervisory status."
In arriving at the conclusion that Beetlestone is not
a supervisor within the meaning of the Act, I have considered
the fact that he is referred to as shop foreman and even
wears a uniform with the insignium "Service Manager "
While this is a factor supporting a finding of supervisory
authority, it is insufficient in the absence of other evidence
of supervisory authority, and while I have some reservations
whether the record correctly describes Beetlestone's authori-
ty, I cannot help but note that only one employee was
called to testify about Beetlestone's duties, and he was
a relatively new employee. On the other hand, Burns and
Flannery, senior employees who testified relative to their
discharge, were not examined about Beetlestone' s status
The record consists principally in the testimony of Respond-
ent's own witnesses and their testimony sustains a finding
that Beetlestone is not a supervisor within the meaning
of the Act. Accordingly, I shall recommend to the Regional
Director that Beetlestone's ballot be opened and counted.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with 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 burden-
ing and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent discharged Donald
Flannery and Robert Burns because of their concerted
activities, I shall recommend that it be ordered to offer
them immediate and full reinstatement to their former
" There is some suggestion in the record that Beetlestone also gave
Flannery permission to leave early on June 11, but the emergency nature
of Flannery's request for permission to leave on June 11 suggests that
approval was a matter of routine not requiring the use of independent
judgment or supervisory authority I note further that Macero had been
apprised of the matter, because he had started out to tell Flannery
he could leave when he met him as he was leaving Macero told Flannery
he could go
CRANDALL-HICKS OF WELLESLEY
jobs or , if those positions no longer exist , to a substantially
equivalent position , without prejudice to their seniority
or other rights and privileges , and to make them whole
for any loss of earnings they may have suffered by reason
of their unlawful discharge by payment to them of a sum
of money equal to that which they normally would have
earned as wages, from the date of their discharge to the
date of the offer of reinstatement less net earnings, to
which shall be added interest at the rate of 6 percent
per annum in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716.
The discharge of employees because they engage in pro-
tected concerted activities strikes at the very heart of employ-
ee rights safeguarded by the Act. I shall therefore
recommend that Respondent be placed under a broad order
to cease and desist from in any manner infringing on
the rights of employees guaranteed in Section 7 of the
Act. N.L.R.B. v. Entwistle Manufacturing Co., 120 F.2d
532, 536 (C.A. 4).
In accordance with the order consolidating cases and
the terms of the agreement for consent election providing
for a final decision of the issues in the R case by the
Regional Director rather than by the Board , I shall order
that Case 1-RC-10,669 be severed and remanded to the
Regional Director for Region I for further processing as
he deems appropriate.
CONCLUSIONS OF LAW
1. Crandall-Hicks of Wellesley, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. District Lodge No. 38, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By discharging Donald Flannery and Robert Burns
because of their protected concerted activities, Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) and 2(6) and (7)
of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this case, I hereby issue
the following:
RECOMMENDED ORDER
Respondent, Crandall-Hicks of Wellesley, Inc., its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discharging employees because they engage in protect-
ed concerted activities.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their right
to self-organization , to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid
or protection as guaranteed by Section 7 of the Act or
to refrain from any or all activities.
61
2. Take the following affirmative action designed to effec-
tuate the policies of the Act:
(a) Offer Donald Flannery and Robert Burns immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights or privi-
leges, and make them whole for any loss of pay they
may have suffered by reason of their unlawful discharge
by payment to them of a sum of money equal to the
amount they normally would have earned as wages from
the date of their discharge to the date of their reinstatement
in the manner set forth in the section entitled "The Remedy."
(b) Notify the above-mentioned employees, if presently
serving in the Armed Forces of the United States, of
their right to full reinstatement upon application in
accordance with the Selective Service and Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board and its agents for examination and copying all payroll
records, social security payment records, timecards, personal
records and reports, and all other records relevant and
necessary to a determination of the amounts of backpay
due under the terms of this Recommended Order.
(d) Post at its Wellesley, Massachusetts, places of business
copies of the attached notice marked "Appendix."" Copies
of said notice, on forms provided by the Regional Director
for Region 1, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon receipt
thereof, and maintained by it for 60 consecutive days there-
after, 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.
(e)Notify the said Regional Director, in writing, within
20 days from the date of this Decision, what steps Respond-
ent has taken to comply herewith."
As to the allegations of the complaint found not to
have constituted violations of the Act, it is recommended
that they be dismissed.
" In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order,
herein shall, as provided in Section 102.48 of the 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.
In the event that the Board's order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall be changed
to read "Posted Pursuant to a Judgment of the United States Court
of Appeals Enforcing an Order of the National Labor Relations Board "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order Severing and Remanding
Case 1-RC-10,669
Case 1-RC-10,669 is hereby severed from the consolidat-
ed proceeding and remanded to the Regional Director
for Region I for further action as he deems appropriate
in accordance with Section 102 62 (a) of the Board 's Rules
and Regulations.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees because of their
concerted activities, including their activities in favor
of, or preference for, representation by District Lodge
No. 38, International Association of Machinists and
Aerospace Workers, AFL-CIO or any other labor
organization.
Since the Board found that we violated the law
when we fired Donald Flannery and Robert Burns,
we will offer them their jobs back and we will pay
them for any loss of pay they may have suffered
because we fired them.
CRANDALL-HICKS OF
WELLESLEY, INC
(Employer)
Dated By
(Representative)
(Title)
NOTE: WE WILL notify the above-mentioned employees if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal
Military Training and Service Act, as amended , after dis-
charge from the Armed Forces.
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 20th
Floor, John F. Kennedy Federal Building , Cambridge &
New Sudbury Streets Boston, Massachusetts 02203, Tele-
phone 617-223-3353.