Forest Dodge, Inc.

National Labor Relations Board - Board Decisions

Feb 4, 1964

145 N.L.R.B. 1463 (N.L.R.B. 1964)

WHITING MILK COMPANY 1463 asserts that the totality of its conduct, including abandonment of reliance of the Local 380 agreement, amply cured Respondent's "vanishingly narrow prior violation, if any." Adamant insistence upon its demands by one of the parties in collective bargaining in and of itself does not suffice to prove an unfair labor practice. The statute ex- pressly so provides.9 A mere proposal of less desirable working condition in nego- tiations is not in itself sufficient to reach a conclusion of bad faith, but is merely a factor in evaluating totality of bargaining conduct. McCulloch Corporation, supra, at 210. The totality of Respondent's conduct on the entire record as a whole does not establish that Respondent engaged in bad-faith bargaining. I so find. The sole remaining question is whether the reference by the Respondent, during negotiations, to the provisions of its agreement with Local 380 constitutes bad-faith bargaining per se. This is next considered. General Counsel urges that Respondent failed to support its position by relevant and legitimate reasons. It is undisputed that a differential, albeit only 111/2 cents, previously existed. We are not here concerned with relative job complexity, or lack of differentiation. Such an issue was neither alleged nor litigated. However, it does not follow that the rate of pay of employees represented by Local 380 is not relevant to the negotiations conducted by parties herein. It is for this reason that I have found, supra, that this conduct of the Respondent was not equivalent to the importing of an "extraneous" issue. I do not find insistence upon a differential, without more, per se bad-faith bargaining. In any event, after the event complained of, the parties undertook good-faith bargaining and arrived at a mutually satisfactory agreement. Even were it found that the acts complained of constituted a per se violation, Respondent's subsequent conduct provides no substantial basis for inferring any disposition on the Respond- ent's part to engage in like conduct in the future, even though not ordered to cease and desist therefrom, but does reflect a willingness on its part to continue harmonious bargaining relations with the Union. Nocona Boot Company, 116 NLRB 1860, 1875. Having found that the Respondent has not engaged in any unfair labor practices in derogation of Section 8(a)(5) and (1) of the Act, I shall recommend that the complaint be dismissed. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Whiting Milk Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District #38, Lodge #264, International Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, as alleged in the complaint. RECOMMENDATION Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint be dismissed in its entirety. 9 Section 8(d) ; Bethlehem Steel Company ( Shipbuilding Division ), 133 NLRB 1347, 1369; McCulloch Corporation, 132 NLRB 201, 211 Forest Dodge, Inc. and Local 376, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind . Case No. 7-CA-/183. February 4, 1964 DECISION AND ORDER On October 2, 1963, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and 145 NLRB No. 141. 1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Ex- aminer's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers herein to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. The Board adopts as its Order the Recommended Order of the Trial Examiner.' 'The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph: Upon the entire record in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that Respondent , its officers , agents, successors , and assigns , shall: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard before Trial Examiner Frederick U. Reel at Detroit , Michigan, on August 7-9, 1963,1 pursuant to a charge filed April 10 and a complaint issued June 12. At issue are whether Respondent , an automobile dealership and service garage located in Livonia , Michigan , a suburb of Detroit, discriminated against em- ployees Dusan (Don) Glavas and Chester Dougherty because of union activity, and engaged in various other acts which interfered with , restrained , and coerced em- ployees in the exercise of their statutory rights. Upon the entire record in the case, 2 including my observation of the witnesses, and after due consideration of the briefs filed by Respondent and by General Counsel, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY ; THE LABOR ORGANIZATION INVOLVED Respondent , a Delaware corporation , conducts its automobile dealership and serv- ice garage in Livonia , where it receives and distributes automobiles , trucks, parts, and accessories . In a typical year Respondent 's sales are in excess of $500,000, in- cluding the sale of automobiles valued in excess of $15,000 to out -of-State customers who transport the automobiles directly outside the State of Michigan. In such a year Respondent receives in excess of $4,000 of goods and materials directly from outside the State. On these facts Respondent admitted , and I find, that it is engaged in commerce within the meaning of the Act. The Charging Party, herein called the Union, is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The chronology of events On Saturday , March 9, the four mechanics and two porters employed at Respond- ent's garage signed application cards for membership in the Union and paid the Unless otherwise noted , all dates herein refer to the year 1963. 2 After the hearing, Respondent filed a motion to correct some of the errors in the tran- script of testimony . This motion , which was not opposed, is herewith granted FOREST DODGE, INC. 1465 Union's initiation fee. They selected Dusan (Don) Glavas, one of the mechanics, as shop steward, and Dan Dettling, another mechanic, as assistant steward. Eddie Petroff, Jr., the union organizer who handled the matter for the Union, advised the employees that he would send the Respondent a telegraphic demand for recognition, that Respondent would receive the telegram Monday morning, and that after Glavas became aware that the telegram had been received he should distribute union buttons to the men who were to wear them. On Monday, March 11, Karel Weisl, the operating head of the Respondent, arrived at the dealership shortly before 10 a.m. by which time the employees were already wearing their union buttons.3 Later that morning Weisl called Chester Dougherty, the mechanic with least seniority, into the office of Service Manager Miller, and told Dougherty he was being laid off as "there wasn't enough work." In the course of the conversation Weisl said he understood that Dougherty had joined the Union, asked what the Union had done for Dougherty, and added that "the Teamsters Union was no good," but Dougherty declined to discuss the matter and left the office. A few minutes after his conversation with Dougherty, Weisl summoned the me- chanics and porters (all of whom had joined the Union) to Service Manager Miller's office, Miller was also present Weisl, by his own admission on direct examination, was "pretty upset"; according to Glavas, Weisl was "pretty angry," "his face was all taut," he kept banging a pencil and pad, and he spoke more loudly than usual. In the course of his remarks to the assembled employees on that occasion, Weisl asked what the Union would do for them, said that he could not pay a guaranteed wage, and added that "he could fire the whole bunch and get a new crew in there." Weisl also stated, "We're not going to have a union here," that he would "close up first," and that he "would run his business the way [he] wanted to run it." He fur- ther stated that the employees should have talked to him "instead of just going be- hind his back and getting a union; now he would fight it until the finish." Weisl concluded by advising the men that he was going to lay off Dougherty and Sisk, and retain the two best men, Dettling and Glavas; on immediate second thought, he stated that he would also retain Sisk. The men generally preserved silence during Weisl's talk; when he mentioned inability to pay a guaranteed wage, Glavas stated that no specific demands were being made on Respondent, and that the Union merely asked for recognition. Shortly after the meeting Weisl advised Glavas that he too was being laid off be- cause business was slow, but later that day-after Weisl had spoken over the tele- phone with Union Organizer Petroff-the Glavas layoff was rescinded. That afternoon Weisl called Glavas to the office, where Weisl attacked the Union and suggested that the employees should form a "service guild" of their own to discuss working conditions with their employer, as was done in another dealership Weisl named. Weis] offered Glavas 2 weeks' vacation with pay to `think this thing over," but Glavas declined. After discussing some of the personalities in the shop and after a lull in the conversation, Weisl (according to Glavas, whose testimony f credit in this respect) threw his pencil on the desk and said, "How about if I give you $500? Would you pack your tools and leave; just get out of my hair?" Glavas declined the offer and left the office. About a week after the employees started to wear union buttons, one of the porters, Ron Easterling, was wearing his button at work when in the presence of Weisl, Salesman Ed Green pulled the button off Easterling's lapel and threw it in the wastebasket. In the course of retrieving the button, someone (Weisl, according to Easterling, but another employee according to Weisl and Green) pinned the button on the tail of Easterling's coat. As noted above, Dougherty was laid off on Monday, March 11. Three weeks later, on Wednesday, April 3, Respondent sent him a letter notifying him of the termination of his services. Meanwhile, on April 1, Glavas had testified on be- half of the Union in a hearing on a representation petition filed by the Union; Dougherty likewise testified for the Union in that proceeding on April 8. On Friday, April 5, Weisl handed Glavas a letter notifying him that he was laid off for 1 week for disciplinary reasons. The charge in this case was filed April 10 and served April 12. Glavas returned to work on Monday, April 15, but was again sent home, this time for want of a bond application. Two days later when Glavas brought in the bond application, Weisl told him to go home and await further word from Weis], who said he wanted to consult his attorney. Glavas left again, and on April 24 Respondent wrote him a letter permanently terminating his employment. "There is some dispute as to whether the telegram had been read over the telephone early that morning to one of the salesmen in Weisl's absence. For reasons discussed infra, I find that it had been so read. 1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Other facts relevant to the Dougherty and Glavas discharges 1. Dougherty With respect to Dougherty, both Weisl and Service Manager Miller testified that they had decided on Friday, March 8 (the day before the employees organized), to lay him off for want of work. At the meeting with the employees on March 11, however, Weisl made no reference to a predetermination to lay Dougherty off, but on the contrary said that he could not afford to pay Dougherty a guaranteed wage. Glavas, whose testimony in this respect I credit, testified as follows: He also stated that he could fire the whole bunch of us and get a new crew in there, and I said something like suit yourself. And then he also stated that he couldn't afford to pay Dougherty or John Sisk a guaranteed wage be- cause they weren't that productive. And, he was speaking to Mr. Miller and he said, "I might as well keep the two biggest money makers," which was Don Glavas, myself, and Dan Dettling, "and get rid of these two guys because I'm not going to pay them guaranteed wages and have them sit around." It should be noted that under the wage system in effect for Respondent's mechanics, each man gets paid only for the jobs he does, and receives no hourly or other minimum guarantee. Under this system if a mechanic is idle, he draws no pay at all, so that the presence of additional mechanics on the payroll does not add to Respond- ent's labor costs Moreover, Respondent by having additional mechanics is able to render more prompt service to customers than if it operated with a skeletal force, and thus is enabled to attract and hold more customers. As the work is assigned more or less in rotation, however, the presence of each additional mechanic reduces the amount of work, and hence the wages, of the others. During the 1962 Christmas season, some 2 months or more before Dougherty's layoff, Dan Dettling, one of the mechanics, had complained to Weisl that he (Dettling) had insufficient work and was going to have to look for a job. Respondent has not replaced Dougherty. Since Dougherty's and Glavas' depar- ture, Respondent hired one Farnsworth who has been working on automatic trans- missions formerly handled by Glavas (Dougherty described himself as "general mechanic except automatic transmissions"). and one other employee on a temporary basis for the period immediately preceding and encompassing the hearing which also coincided with Dettling's vacation. 2. Glavas Most of the testimony in this case concerned the employment history and work record of Glavas. The following facts with respect thereto are established by documentary evidence, by uncontradicted testimony, or by testimony which I credit upon my observation of the witnesses and my consideration of the entire record: Glavas was hired in mid-November 1962. For some reason not apparent from this record, he did not at the time fill out a bond application, although Respondent's practice was to have its service employees bonded. He also did not fill out the customary employment application form at the time, and when he eventually filled out such a form some 2 weeks later, he did not list all his previous places of employ- ment. About 2 months later Weisl noted that Glavas had not filed a bond applica- tion and asked him to take steps to do so. As of the time of the union organizing activity on March 9, Glavas had not filed a bond application. At least until March 11, when Respondent learned of the union activity and Glavas' leadership thereof, Glavas was regarded as a satisfactory employee His fellow employees consider him to be a highly competent mechanic. Respondent introduced records of several transmission repair jobs which it claimed Glavas had not performed properly with the result that the cars had to be reserviced and the Respondent suffered losses, both directly in the form of labor and materials which it had to furnish gratis, and indirectly in the form of customer goodwill. Glavas advanced various explanations for the "comebacks," most of which involved old or secondhand cars which he and other employees described as "clunkers," i.e., cars on which the necessity of further repairs could be expected in the near future. Although I am convinced that the recored establishes not only that Glavas' work had its im- perfections but also that his manner sometimes offended customers,4 the fact remains that as of March 11 Weisl regarded Glavas as one of his two best mechanics, and so stated to the assembled employees. The record is also clear that Farnsworth, who d The most serious example involved work done for one Latzmann, who complained to the Chrysler Corporation not only about Glavas but also about the treatment given him by Weisl and by Service Manager Miller. The Latzmann affair occurred in December and January, 1962-63, shortly after Glavas began work and several months before his discharge. FOREST DODGE, INC. 1467 in effect replaced Glavas as the Respondent's mechanic specializing in automatic transmissions , is inferior to Glavas as a mechanic; employee Dettling expressly so testified and even Weisl admitted that Farnsworth is "not very good." After March 11 Glavas' relations with Respondent deteriorated at a rapid rate. From then until his layoff on April 5 he was given far fewer work assignments and hence drew less pay than theretofore. The testimony of Dettling and the payroll records in evidence establish that while the earnings of Sisk and Dettling rose during this period, Glavas' earnings declined. Both Dettling and Sisk recalled episodes during that period in which they were assigned work which they felt should have gone to Glavas under a rotation system. During the week of March 11 Weisl gave Glavas another bond application which Glavas filled in and returned to one Fifield, the used-car manager. Fifield placed the application on Weisl's desk, and so advised Weisl, but Weisl never found it. When Weisl mentioned this to Glavas a few days later, Glavas offered to furnish his own bond, but he never did so. On Friday, April 5, at the end of the workday, Glavas, accompanied by Dettling, went to the office to pick up Glavas' weekly paycheck, which had not been distrib- uted to him that day when the other men received theirs. Weisl asked Glavas to step into his office, but when Dettling, at Glavas' suggestion, started to accompany them, Weisl said that he did not desire Dettling's presence. Glavas then stated that if Weisl did not want Dettling to hear the conversation, he (Glavas) would not go into the office. Weisl thereupon handed Glavas his paycheck together with a two-page letter advising him of a disciplinary layoff for 1 week. The first page of the letter listed six jobs on which Glavas' alleged "lack of productivity and faulty workmanship" had been costly to Respondent. The letter went on to state that Glavas had been "cautioned" after each instance of poor workmanship, that his performance had "consistently been inferior" to that of his fellow employees and "definitely below ... standards required," that his attitude had been poor, and that he had refused to be bonded. The letter signed by Weisl concluded that "for these reasons as well as others which I am discussing with you privately today," Glavas was laid off and was to report for work on Monday, April 15. The "private" discussion referred to in the letter did not occur because of Glavas' insistence on Dettling's presence. On the witness stand, Weisl was asked what matters he had intended to discuss privately. He testified as follows: "Well, I think that what I was going to talk to him about was writing the letter. I wanted to go over the whole thing and tell him the reason I was laying him off." Pressed as to the "other" reasons mentioned in the letter, Weisl testified: "I'm trying to think; to go back .. . I can't recall off hand, but I know that it was a very important item, but I can't lay my finger on it . . . . It was a conversation actually about the Friend of the Court" (a reference to some litigation concerning a domestic problem of Glavas, and a loan Weisl had made him in connection therewith). When Glavas glanced at the layoff letter, he said to Weisl that he would see Weisl at the National Labor Relations Board, to which Weisl replied (according to Glavas), "That's all right. When that's all done, I have two more letters already written to give you." The charge in Glavas' behalf was filed the following week. As noted above, Glavas returned on April 15, but did not bring a bond applica- tion. According to Glavas, Weisl on that occasion not only told him he could not return to work without filing such an application, but also said that Glavas' mistakes had cost the Respondent between $480 and $490, and that if Glavas would give Weisl this sum, Weisl would reinstate him. Glavas said, "You're kidding," walked out, and returned 2 days later with the bond application, but was sent home to await further word, which came April 24 in the form of a discharge letter. Weisl's testimony to some extent corroborates that of Glavas. According to Weisl, when he saw Glavas on April 15 and learned that Glavas did not have the bond applica- tion and wanted Weisl to get it for him, Weisl said, "I don't think I can get it for you now .... According to the circumstances that I have now almost four hundred, five hundred dollars worth of transmission, I don't think I want you around the premises." Later in his testimony Weisl was asked why, after telling Glavas in the letter of April 5 to report back on April 15, he told Glavas on April 15, "I don't think I want you on the premises ." On this occasion Weisl attributed his remarks to his impatience over Glavas' continued refusal to furnish a bond application. Weisl further testified that when Glavas finally brought in the bond application 2 days later, they engaged in a private conversation which Weisl described as follows: Well, he told me that he didn't hold anything against me and this could have been avoided. I asked him, "How could this have been avoided?" He said, "Well, you know, you know just as well as I do." I said, "No, I don't." He said, You know, union is my business. You can't prove this because there's 1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only you and me. You can have another transmission back. I can screw them up and you can't even detect them." He said, "I'm this kind of a mechanic." He said, "So remember, it's just you and I" and he talked to me a little bit more and I said, "Well, I guess I have to go." He said, "Oh, by the way. I'm broke. Do you have five bucks?" I said, "I don't think I want to get involved in this again." I said, "I give you the five bucks" and I took the five bucks and threw it on the desk and walked out of the office. Weisl further testified that "the following morning we had another car back" and he "remarked to Mr. Miller that Mr. Glavas knows what he is talking about." But Weisl identified that car as the Vesco car, which came in April 15, 2 days before Weisl's alleged interview with Glavas. Glavas, who testified before Weisl, was asked on cross-examination whether he had made statements similar to those Weisl later attributed to him, and categorically denied having done so. One week later, on April 24, Weisl wrote Glavas the following letter: Please be advised that because of the various disclosures you made to me privately during our last conversation and the other admissions you made to me I have no alternative but to absolutely terminate your employment effective immediately, notwithstanding the earlier letter of disciplinary action. Two post-discharge telephone conversations of bizarre nature must also be recounted. On June 21, Glavas had his brother telephone Weisl and, posing as the service manager of another garage, state that Glavas had applied for a job and the service manager was calling Weisl for a reference. According to Glavas who was listening on another telephone, Weisl first said that Glavas was a good mechanic but had become "mixed up in Union activities." Suddenly, according to Glavas, Weisl changed his tone and said that Glavas had not been a very good mechanic. The parties stipulated that Glavas' brother would have testified in accordance with Glavas' version of this episode. Weisl also recalled this conversation, but, accord- ing to him, he knew that the man at the other end of the telephone was misrepresent- ing himself, and was not the service manager at this garage, so all Weisl said was that Glavas was a good mechanic when he wanted to be About a half hour later on June 21 Glavas telephoned Respondent's counsel, Jack Burwell, primarily to raise certain questions concerning Glavas' pending claims before the Michigan Employment Security Commission. According to Burwell's testimony, the conversation turned to the instant proceeding, and Glavas stated that as Weisl was lying about his attempt to bribe Glavas, he (Glavas) "was going to lie too." Glavas at first denied having made any such statement but finally ad- mitted that he might have done so'as he remembered accusing Weisl of perjuring himself. Glavas recalled that he had been "drinking quite a bit that day," and that he "was pretty well under the weather" when he talked to Burwell. C. Concluding findings I Credibility determinations As is often true in cases under this Act, the result here, at least in Glavas' case, turns in large measure on whether the testimony offered by the General Counsel or the contrary testimony offered by the Respondent is to be believed. It is, of course, the function of the Trial Examiner to pass, at least in the first instance, on the credibility of the testimony before him Both the Board and higher reviewing authorities have repeatedly recognized that the Trial Examiner is the sole judicial officer who observes the demeanor of the witnesses, and hence attach considerable weight. if not finality, to his credibility determinations. See N.L R B. v. Dinion Coil Company, 201 F. 2d 484, 487, 490 (C.A. 2), for a scholarly analysis of the problem. More recently Judge Friendly, concurring in Local 138, International Union of Operating Engineers, et al., v N.L.R.B. (J J. Hagerty, Inc.), footnote 1 321 F. 2d 130 (C.A. 2), expressed disquiet over the practice "of endeavoring to support findings by applying a `credible' rubber stamp to one witness and a `not credible' one to another with no explanation that will assist the Board or a reviewing court in ascertaining what led to the use of the particular stamp." But compare Dinton Coil, supra, and see also Broadcast Music v. Havana Madrid Restaurant Corp., 175 F. 2d 77, 80 (C.A. 2), quoted at footnote 11 of the Dimon case, 201 F. 2d at 488. Judge Friendly's objection to the "credible" stamp would hardly be obviated by adding the word "demeanor," but as Judge Frank points out in Dinion, often there is little else upon which to rest a choice, and to articulate the basis for FOREST DODGE, INC. 1469 a "demeanor" finding not only borders on the impossible (see Judge Frank's quo- tation of Sir James Stephen, Denson at 489), but when attempted simply invites reversal at the hands of any reviewing judge who, had he been trying the case, might well have made the same finding but would have articulated a different aspect of demeanor as the basis therefor. In the instant case, I have little hesitancy in discrediting the testimony of Service Manager Miller and Everett Green, two of the witnesses called by Respondent. Miller, although ostensibly a disinterested witness as he is no longer in Respondent's employ, impressed me as deliberately falsifying his testimony concerning the March 11 meeting in his office. Although the employees testified that such a meeting was unprecedented, and although Weisl himself admitted that he was upset, and also admitted that Dettling in his testimony had accurately summarized Weisl's remarks at the meeting,5 Miller could not recall much of the meeting, heard no mention of the Union or its leaders, and "remembered" that Weisl was calm and not excited. Even if I am wrong in finding that Miller deliberately falsified, at the very least his testimony as to that meeting shows that his recollection is hopelessly bad. Miller's testimony is therefore totally rejected. Salesman Green likewise impressed me as an unreliable witness. According to Green, when Western Union telephoned on March 11, he answered the telephone, but upon ascertaining that the operator wanted to read him a telegram, he declined to listen to it, did not ascertain who the sender was, and merely said he would have Weisl call the operator. Other employees testified, with credible corroborating detail, that Green knew the contents of the telegram when he hung up the telephone. Green's testimony that when Easterling said, "We joined the Union," Green did not even inquire who had joined what union would be credible only if Green already knew the answers to those questions. Suffice it that because of the improbabilities of Green's testimony, the corroborative detail of Easterling's and Dettling's contrary testimony, and the demeanor of the witnesses, I discredit Green. And, as in Miller's case, Green's false testimony on a critical matter leads me to doubt his veracity on any other critical matters as to which he testified. "Falsus in uno, falsus in omnibus" is not absolute rule, but under the circumstances of this case, I am impelled to apply it to any testimony of Miller and Green which is substantially contradicted or not corroborated by other undisputed testimony. The most important conflicts in the testimony are those between Glavas and Weisl. Glavas' threat in his telephone conversation with Burwell that Glavas in- tended to commit perjury requires that his testimony be scanned with unusually critical eyes. On the other hand Weisl appeared to equivocate on some occasions and exhibited a faulty recollection on some critical matters. His faltering attempt to recall what he had intended to tell Glavas at the layoff interview on April 5 did not carry conviction, and he manifestly erred when he said that the Vesco job came back after his alleged conversation with Glavas on April 17. The importance of the conflicts in testimony is obvious Not only did they differ sharply on such matters as whether Glavas had been warned for poor work, but also on such highly crucial points as whether Glavas represented himself as a union agent ready to sabotage his employer, and whether Weisl admitted to Glavas' brother (calling in the guise of another garageman) that Glavas' union activity led to his discharge. On careful consideration of the entire record I am inclined on the critical matters to credit the testimony of Glavas, although I am by no means free of doubt. Aside from matters of demeanor-as to which both left something to be desired-I am moved by such details as the fact that Weisl waited an entire week after the April 17 interview in which Glavas allegedly admitted deliberate sabotage, and the fact that Glavas attributed to Weisl a volte face in the middle of the June 21 telephone con- versation with Glavas' brother, a detail which I believe he would not have invented if his entire version were fabricated. It seems likely to me that Weisl did realize, as he testified, that the man to whom he was talking had misrepresented himself, but I think Weisl made this discovery after making the admissions Glavas attributed to him. 2. The violations a. Interference, restraint, and coercion There can be little doubt that Respondent violated Section 8(a) (1) of the Act. Weisl told the assembled employees on March 11 that he would close down rather than have a union in his shop and threatened to discharge those who had joined the 5 Dettling quoted Weis] as saying, "We're not going to have a union here" and calling the leaders of the International Union "racketeers, gangsters." 1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unions He offered Glavas monetary rewards to drop the Union, and suggested that the employees form their own labor organization. He also was, at the least, a consenting bystander when Green pulled the union button off Easterling's jacket; I see no need to resolve the dispute as to whether it was Weisl himself or another employee who in the ensuing scuffle pinned the button on Easterling's coattail. The general nature of Weisl's interference, restraint, and coercion of employees warrants the issuance of a general cease-and-desist order which will plainly encompass any such action, or condonation of such action, on his part in the future, whether or not he actively participated in this episode or merely gave it his silent approval by failing to interfere. b. Dougherty Dougherty's case is troublesome, for I do not credit Miller's or Weisl's testimony that his layoff had been decided on the day before the union activity. None of Miller's testimony, as noted above, is worthy of belief, and Weisl offered no explana- tion of how he happened to decide on Dougherty's layoff on Friday or why, if he did so decide, he waited until Monday-after the union activity began-to lay Dougherty off. General Counsel points out that under Respondent's system of paying only for work done, Dougherty's presence on the payroll did not cost Respondent anything. Respondent counters by pointing to Dettling's threat to quit unless he received more work. But this threat was uttered at least 2 months before Dougherty's layoff, and I find that Dettling's statement played little, if any, role in Weisl's determination. Furthermore, Weisl in his antiunion talk to the employees on March 11 empha- sized that he could not afford to pay a guaranteed wage (apparently he feared the Union would demand one), and the import of his message to the employees was that he was laying Dougherty off rather than face the prospect of so compensating him. On the other hand, the employees generally corroborated Weisl's testimony that the work had declined, prior to Dougherty's layoff, to the point where his services were no longer required. He has not been replaced, and there is no reason to believe that Respondent has any need for another permanent mechanic. Dougherty's own union activities as distinguished from those of his fellow employees were not singled out for attack; on the contrary, so far as this record shows, Dougherty would have been laid off on this occasion if only his fellows had joined the Union, and he had not. The case, to repeat, is troublesome. In one view of the matter it could be said that Weisl, learning of the union activity, took stock of his manpower situation and discovered that Dougherty was surplus. This approach would seem to lead to a dismissal of the case as to Dougherty. Using a different approach, it could be said that if the men had not joined the Union, Dougherty, so far as this record shows, would still be employed by Respondent. This approach would seem to lead to sus- taining the complaint as to Dougherty. Analysis of the record and consideration of the case law on this subject lead me to the conclusion that the latter approach is proper. Respondent relies heavily on N.L.R.B. v. E. S. Kingsford, d/b/a Kingsford Motor Car Co., 313 F. 2d 826 (C.A. 6), a case which discusses several earlier decisions of that court, notably N.L.R.B. v. Adkins Transfer Company, Inc., 226 F. 2d 324; N.L.R.B. v. R. C. Mahon Company, 269 F. 2d 44; and N.L.R.B. v. J. M. Lassing, et al., d/b/a Consumers Gasoline Stations, 284 F. 2d 781, cert. denied 366 U.S. 909. With respect to the latter three cases the court points out in Kingsford (313 F. 2d at 830, 831) that proof of antiunion motivation is critical to the General Counsel's case and "In none of those cases was there evidence of antiunion sentiment or ani- mosity." This fact alone serves to distinguish the Adkins-Mahon-Lassing trilogy from the case before us, where antiunion hostility is apparent on the record. Al- though they are thus plainly distinguishable, in the view of the Sixth Circuit, from the case at bar, we shall have occasion to consider them further infra. Turning first to Kingsford, however, that case like this involves an automobile dealer whose hostility to a union led him to commit other unfair labor practices, and who defended the particular discharge under consideration by a plea of economic necessity accompanied by proof of financial losses. In Kingsford, however, the " Weisl knew when he hired Sisk that the latter had been a union member. But Weisl's objections apparently ran to having a union organize his entire shop, and also to some extent to the "secrecy" with which the employees had proceeded In view of Weisl's own admission that he was "upset" by the action of his employees in joining the Union, I can hardly assign great weight to his foreknowledge with respect to Sisk. FOREST DODGE, INC. 1471 employer's closing of the body shop (the alleged unfair labor practice under dis- cussion) affected a significant economic change in the employer's operations. In the instant case, on the other hand, the layoff of Dougherty had no such impact as Dougherty's removal from the payroll made no difference in Respondent's existing labor costs. The court in Kingsford observes that "In a case such as this, the task of determining motivation is truly difficult when the employer advances economic reasons of any substance as that which brings about the change." 313 F. 2d at 830. In the instant case I can find no "economic reason of any substance" serving as the basis for the layoff of Dougherty. On the contrary I find that that layoff would not have occurred but for the fact that the men joined the Union. The "economic reason" advanced at the time was Weisl's belief that he could not afford to pay Dougherty the wages that Weisl feared the Union would demand. But Weisl was facea with no wage demands, a fact that the men made clear to him as soon as he commenced talking about a guaranteed wage. In this respect, therefore, this case is totally unlike Kingsford where the layoffs resulted in economic advantage to a hard- pressed employer; this case is more like Lassing, to which we now return. Lassing, as already noted, is distinguishable, because of the presence here of anti- union animus which the court found lacking there. In Lassing, as here, the employer took action because he anticipated that the advent of a union would iarse his labor costs. The court, stating that "A change in operation motivated by financial or economic reasons is not an unfair labor practice under the Act," held that the discharges in that case were made "because of reasonably anticipated increased costs, regardless of whether this increased cost was caused by the advent of the Union or by some other factor entering the picture." 284 F. 2d at 783. 1 must in candor confess to some difficulty in following the court's rationale. Employer opposition to unions, where such opposition exists, is normally founded on an economic basis. Just as many employees are for unions because they believe that unions will help them get increased wages or other economic benefits, so are some employers against unions because they tear unions will cause the employer's labor costs to rise. To state that an employer's action, triggered by the advent of the Union, is based on "economics" and not on "hostility" does not, in my judgment, advance analysis of the problem. Similarly, the emphasis in Lassing on the employer's economic difficulties does not seem to aid analysis, for the rights of employees to join a union, and to be free from reprisal therefor, are not affected by the extent of their employer's solvency. Taken to its logical extreme, Lassing would seem to hold that an im- poverished employer can lawfully say to an employee, "I will discharge you if you join the Union because I fear a union will raise my labor costs." I simply cannot believe that the Lassing court intended any such extreme holding. It may well be that the Lassing case can be explained by the peculiar circumstance that the employer there had already announced that he planned to shut down by a certain date, and that he would advance the date if anything happened to increase costs. In this view it was mere chance that the "thing" that happened was advent of a union. In one view of the case, this would merely point up the violation; the men would have been employed for a certain period longer but for the fact that they exercised their statutory right to join a union. The Sixth Circuit did not take this view in Lassing. In at least one respect the facts in Lassing present a stronger case on behalf of General Counsel than the facts here, for in Lassing the employer turned the work of the discharged employees over to a contractor, whereas here no new employees were required to handle the work formerly done by Dougherty. The Mahon and Adkins cases, supra, present further distinctions from the instant case. In Adkins, the employer at the time of the layoffs was already faced with specific wage demands and a threatened strike. In Mahon the employer before the advent of the union had already laid plans to contract out the work in ques- tion. And in both Adkins and Mahon, as in Lassing, the court absolved the employer of union animus. In sum, Dougherty lost his job on March 11 because he and his fellows exercised their right to join a union. But for their doing so, he would not have been laid off at this time. This is an act of discrimination with respect to tenure of employment which discourages union membership and hence violates Section 8(a)(3) and (1). The Sixth Circuit's decision in Kingsford is distinguishable, as the layoff there effected an economy, and could therefore be immediately justified on economic grounds. The same court's decisions in Lassing, Mahon, and Adkins are distinguish- able in that in this case, unlike those, there is evidence of the Employer's union animus, independent of the "animus" shown by the layoff in question. 1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lassing, moreover, insofar as it holds that an employer may discharge a man for joining a union because the employer fears the union will increase his labor costs must be limited to its peculiar facts; it cannot be read as holding that an employee must correctly ascertain his employer's financial status before enjoying statutory protection for joining a union.? It follows that I find a violation in Dougherty's case; the matter of remedy (cf. last paragraph of opinion in N.L.R B. v. Ellis and Watts Products, Inc., 297 F. 2d 576, 577 (C.A. 6)) is discussed infra. c. Glavas Glavas' case, unlike Dougherty's, presents only factual issues and not issues of law. I find that Glavas' leadership of the Union was a motivating force underlying Re- spondent's treatment of him after March 11, and that his layoff on April 5 and discharge April 24 resulted from such activity. Glavas as of the time of the union activity was considered one of the better em- ployees, but immediately thereafter Respondent embarked on a program,of curtailing his assignments and hence his pay. The layoff letter of April 5 which referred to Glavas' inadequacies as compared with his fellow employees is in that respect, at least, a dishonest document Respondent attempted to support the charge of poor workmanship by the records of jobs as to which Glavas had performed unsat- isfactorily, but even assuming in each case that the fault lay with Glavas, the total was a mere six jobs out of his entire tour of duty. The bonding matter also did not appear to trouble Respondent until after Glavas' union activity, and in any event the record is clear that Glavas turned in a bond application which was mislaid or lost by Respondent's officials, not by him. Glavas, laid off on April 5, was told in the layoff letter to return on Monday, April 15. When he did so, his employer told him he was not wanted on the premises. Pressed for an explanation as to what caused this reversal of attitude, Weisl attributed it to irritation over Glavas' delay in filing a bond application. But Glavas had al- ready filed one a month before. I regard Weisl's explanation as a false one, and in- deed his demeanor in answering the question was such as to convince me that the answer was untrue. He promptly launched into a discussion of Glavas' conceal- ments on his job application, but this matter did not come to his attention on April 15, as he did not see the bond application containing this data until April 17. The record shows, however, that on Friday, April 12, Weis] received from the Board's Regional Office a copy of the charge initiating this proceeding. The following Wednesday, when Glavas returned with the bond application, Weisl said he would have to consult his lawyer before reinstating Glavas. The discharge letter followed. At least until April 17 I have no doubt that Glavas was the victim of Weisl's hostility to the Union and to Glavas as the leader of the union movement in the shop. On that date, according to Weisl, Glavas in effect admitted sabotage. Were I to credit Weisl, he would have had good ground at that time for the discharge. Militating in favor of Weisl is his letter of April 24 referring to "disclosures" Glavas made "privately." Also the character of Glavas, as I saw it, renders it believable that he would boast or hint at such conduct, whether or not be would commit it. Further the testimony of Burwell that Glavas contemplated perjury causes me to read Glavas' testimony skeptically. On the other hand, Weisl is also not a witness to be relied on, and I find it incredible that a week would elapse between Glavas' "admissions" of sabotage and Weisl's action thereon. Note must be taken, too, that Glavas attributed to Weisl a statement on April 5 that he had two more letters ready to send Glavas. To sum up, it is my view that Weisl's hostility to the Union was, at the very least, a contributing factor in the discharge of Glavas. See N.L.R.B. v Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2). This clearly underlay all of Weisl's treatment of Glavas in March, when Glavas was deprived of work, on April 5 when 7 My extended discussion of the Sixth Circuit cases could have been curtailed to the brief comment that I am bound by the Board , and not the court , decisions therein See Iowa Beef Pact crs, Joe , 144 NLRB 615, citing Insurance Agents' International Union, AFL- CIO (Prudential Insurance Co of America), 119 NLRB 768 , 773. (The Board in Iowa Beef does not recite the subsequent history of Insurance Agents ) I do not regard either Iowa Beef or any other case , however , as an instruction to Trial Examiners not to discuss or analyze court decisions , but merely as an instruction not to follow them And quaere whether "uniform and orderly administration" is better achieved ( particularly where any party can file exceptions with the Board, and the old rule of tolling bacicpay has been abolished ) by unelucidating acceptance of Board precedent at all stages of the administra- tive process short of judicial review. FOREST DODGE, INC. 1473 he was laid off, and on April 15, when promptly after the Union filed a charge, he was "not wanted on the premises." Even assuming that Glavas exchanged some harsh words with Weisl on April 17, I find that his discharge (of which he was notified a week later) is attributable to his leadership of the Union rather than to their interview. Weisl's later telephone conversation with Glavas' brother I regard as confirming my conclusion in this respect. III. THE REMEDY The finding of discrimination and the general nature of Weisl's attack on the Union, including a threat to fire the entire crew and a declaration that he would close the business rather than deal with a union, warrant the issuance of a broad cease-and-desist order enjoining any violation of the employees' Section 7 rights. The discriminatory discharge of Glavas calls for the conventional remedy of rein- statement and backpay, computed in accordance with the formulas set forth in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. With respect to Dougherty, however, I believe that the conventional order of reinstatement with backpay is not altogether appropriate. Although Dougherty's loss of employment was the direct result of the employees' exercise of their rights under the Act, the record before me reveals that Respondent may well now have a valid, economic, nondiscriminatory reason for not employing him. In these circumstances the remedial purposes of the Act would appear to be best achieved by giving the employee preferential listing for employment and giving him backpay until such time as the discrimination against him is cured by such preferential listing or by rehire, whichever occurs first. Cf. Barney's Supercenter, Inc, 128 NLRB 1325, 1331-1332; Sidele Fashions, Inc., 133 NLRB 547, 554, 555, enfd. 305 F. 2d 825 (C.A. 3). The Woolworth and Isis formulas should also be applied to Dougherty. Respondent has pointed out that the wages Dougherty would have eained had he not been discharged have already been paid to the other employees who were retained This fact does not materially distinguish this case, so far as the appro- priate remedy is concerned, from a case in which the employer had paid wages to a substitute who replaced the discriminatee. So far as a "formula" for determining Dougherty's backpay is concerned, this is a matter which can be left to compliance negotiations or proceedings (cf. N.L.R.B. v. Cambria Clay Products Company, 215 F. 2d 48, 56 (C A. 6) ); among other possibilities is one which would give Dougherty the same percentage of the total wages paid subsequent to his layoff which he had normally received during a representative period preceding his layoff. CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By laying off and later discharging Chester Dougherty and Dusan Glavas under the circumstances found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Forest Dodge, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from threatening its employees with reprisals for joining a labor organization, promising them benefits if they abandon membership in a labor organization, discriminating against them because of union membership or activity, or in any other manner interfering with, restraining, or coercing them in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Reinstate Dusan Glavas to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." 734-070-64-vol. 145-94 1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Place Chester Dougherty upon a preferential hiring list, offer him employment as soon as a job he is qualified to fill becomes available, and make him whole in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms hereof. (d) Post at its premises in Livonia, Michigan, copies of the attached notice marked "Appendix." 8 Copies of such notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Seventh Region, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply herewith.° 8If this Recommended Order should be adopted by the Board, the words "As Ordered by" shall be substituted for "As Recommended by a Trial Examiner of" in the notice. In the further event that the Board's Order be enforced by a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order of" shall be Inserted immediately following "As Ordered by." 9In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES As recommended by a Trial Examiner of the National Labor Relations Board and in order to conduct our labor relations in compliance with the National Labor Relations Act, we notify our employees that: WE WILL NOT discharge or take any other action against any employee because he is a member of, or supports, Local 376, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor union. ALL our employees have the right to form, join , or assist any labor union, or to refrain from so doing. WE WILL NOT by threats, promises, or in any other manner interfere with, restrain, or coerce our employees in the exercise of this right. WE WILL offer immediately to Dusan Glavas the job he last held, or a similar job, without loss of any rights or privileges he had in such job. WE WILL offer to Chester Dougherty the next job vacancy he is qualified to fill. WE WILL give each of those employees whatever backpay each lost as a result of our discrimination against them. FOREST DODGE, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their rights to full reinstatement or place- ment upon a preferential hiring list upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. TEAMSTERS , CHAUFFEURS, ETC., LOCAL NO. 386 1475 Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3230, if they have any questions concerning this notice or compliance with its provisions. Teamsters, Chauffeurs , Warehousemen and Helpers Union Local No. 386, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America; Valley Employers Association ; Floden-Button Co.; Oakdale Poultry Company; San Joaquin Valley Turkey Growers Association ; and E. S. Christoffersen , d/b/a Christoffersen Poultry, Egg & Feed Market and California Association of Employers . Case No. f0-CE-18. February 4, 1964 DECISION AND ORDER On October 22, 1963, Trial Examiner David Karasick issued his Trial Examiner's Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the Respondent Union and the Respondent Valley Employers Association filed exceptions to the Trial Examiner's Decision and supporting briefs. The California Association of Employers, Charging Party herein, filed an answering brief to Respondents' exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, except as modified below.' 1 Respondent Association excepts to paragraph 2(c) (2) of the Trial Examiner's Recom- mended Order requiring posting of Appendix F by all of its members. We find merit to this exception . The Association numbers some 400 employers engaged in various in- dustries , many without union organization, and many engaged only in intrastate com- merce. None of the other Association members belongs to the industry group involved, none is covered by the same collective-bargaining agreement, and most of them do not have a contract with the Respondent Union. In our opinion no useful purpose would be served by requesting these employers to post such notice, if they are willing. Accord- ingly, we shall delete this requirement from our Order herein. (See footnote 3, infra.) 145 NLRB No. 145.