Klinka's GarageDownload PDFNational Labor Relations Board - Board DecisionsAug 26, 1953106 N.L.R.B. 969 (N.L.R.B. 1953) Copy Citation KLINKA'S GARAGE 969 refrain may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. The appropriate bargaining unit is All office and clerical employees at the Allis-Chalmers Manufacturing Company tractor branch, Toledo, Ohio, excluding branch manager, assistant branch manager, service manager , parts foreman, office manager , warehouse foreman , accountant, guards , outside salesmen , secretary to branch manager , confidential employees, warehouse , receiving and shipping employees , professional employees and super- visors as defined in Section 2 (11) of the Act, as amended. ALLIS-CHALMERS MANUFACTURING COMPANY, Employer. Dated By. ... ... ... . ...... ........ . (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. JOHN A. KLINKA, An Individual doing business as KLINKA'S GARAGE and INTERNATIONAL UNION, UNITED AUTO- MOBILE WORKERS OF AMERICA, AFL. Case No. 13-CA- 1259 . August 26, 1953 DECISION AND ORDER On May 28, 1953, Trial Examiner Eugene F. Frey issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of the Act and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint. Thereafter, the Respondent filed exceptions to the Intermediate Report with a supporting brief and the General Counsel filed a memorandum in opposition to Respondent's exceptions. 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 Intermediate Report, the exceptions, brief, and memorandum of opposition, and the entire record in the case, and adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent consistent with the findings, conclusions, and order hereinafter.' 1 The following minor corrections of the Trial Examiner's findings are noted: (1) The Intermediate Report states, in its text following footnote 1, that "All purchased parts and accessories are shipped to Respondent from points within the State of Wisconsin " (Emphasis supplied.) The parties stipulated at the hearing, however, as correctly found by the Trial Examiner elsewhere, that the motor vehicles and accessories sold by Respondent are 106 NLRB No. 156. 97 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. We find, in accord with the Trial Examiner, that the Respondent, as an essential element in a nationwide system of automobile manufacture and distribution, is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein.2 Our dissenting colleague, without directly challenging the Board's legal authority to assert jurisdiction over this em- ployer,, would dismiss as a matter of "administrative self- restraint" and, for the further reason, that the Wisconsin board is perhaps better adapted to handling a dispute of this nature. To accept the first promise would require revision of the Board's jurisdictional policy--concededly not binding on the Chairman as he had no part in its formulation- -which in our view is a reasonably definite yardstick for industry and labor, and has received general acceptance since first announced several years ago. Granted that the Board could, in its dis- cretion, alter the jurisdictional criteria so as to exclude this employer from the reach of Federal power, we think that should be done only as part of an overall examination of our jurisdictional standards. The second premise seems to us hardly tenable, even assuming the undoubted competence of the Wisconsin board, when it is noted that by the provisions of the very Act we administer it is not possible to cede juris- diction to the Wisconsin board. It appears to us, therefore, that assertion of jurisdiction here is not an instance of over-reaching by a Federal agency, but adherence to settled administrative and statutory criteria. 2. We also find, as did the Trial Examiner, that the Re- spondent violated Section 8 (a) (3) and (1) by the October 3, 1952, discharges of his employees. By these discharges, by illegal interrogation of Arthur Kiefer as to his union affiliation, and by statements to the employees constituting threats of discharge in the event the Union organized the shop, the Re- spondent also violated Section 8 (a) (1). Contrary to the shipped from points outside the State ofWisconsin and that parts are shipped to the Respondent from points within that State. (2) The Kiefers, on October 3, 1952, worked 42 minutes on the Justman car and an hour and 50 minutes on the Meyer car whereas the Trial Examiner inadvertently reversed the totals. Finally, we note a typographical error in footnote 31 of the Intermediate Report rec- ommending that the complaint be dismissed "in this report" rather than "in this respect." None of these inaccuracies or inadvertencies in the Trial Examiner's report is of srch a nature as to affect his ultimate conclusions or our findings herein. 2See Baxter Brothers, 91 NLRB 1480; N. L. R. B. v. Somerville Buick, Inc., 194 F. 2d 56 (C. A 1); N L. R. B. v. Ken Rose Motors, Inc., 193 F. 2d 769 (C. A. 1); N. L. R B. v. Davis Motors, Inc., 192 F 2d 782 (C. A. 10); N L. R B. v. Conover Motor Co., 192 F. 2d 779 (C. A. 10). BAs, indeed, would appear to us fruitless in view of the decided cases See, e.g , N. L. R. B. v. Denver Building Trades Council, 341 U. S. 675; N. L. R. B. v. Cowell Portland Cement Co., 148 F. 2d 237, cert. den. 326 U S. 735; N L R. B v. Kudile, et al , 130 F. 2d 615, cert. den. 317 U S 694, where the courts have affirmed the Board's jurisdiction over enter- prises with annual inflow of goods across State lines in accounts comparable to that herein KLINKA'S GARAGE 97 1 exceptions filed by the Respondent , the record fully supports the fact and credibility findings made by the Trial Examiner with respect to these violations . Inasmuch, however, as we find hereinafter that the September 22 reductions in pay and hours were not in violation of the Act , it is clear that the Respondent made a valid offer of reinstatement to Robert Kiefer on January 26, 1953, which extinguished further liability for back pay due that employee. As Robert Kiefer rejected the Respondent ' s valid offer of reinstatement and as Arthur Kiefer was reemployed by the Respondent shortly after his discharge , we hereby amend the Remedy, as ordered by the Trial Examiner , to provide that back pay for Robert Kiefer be limited to the period between the date of his discharge and the date of Respondent ' s offer of reinstatement and we shall not direct that the Respondent make further offer of reinstate- ment to either employee. 3. We do not agree with the Trial Examiner that the Re- spondent violated Section 8 ( a) (3) and ( 1) with respect to the September 22, 1952, reductions in hours and the rate of pay on body work . We are persuaded , instead, on the entire record, that the Respondent initiated and executed such reductions for economic reasons. In this respect we note that, although the statistics offered by the Respondent as to the body shop are not entirely conclusive as to the actual profit and loss situation of that division , there is considerable evidence of economic justification for the reductions. More- over, it is clear that the Respondent considered such reductions, or like economies , necessary even prior the advent of the Union and its organization of his employees . Further, after the reductions had been accomplished , there is no evidence that the reduced hours necessitated overtime work to keep the work load current. Accordingly, we find that the Re- spondent did not violate Section 8 ( a) (3) and ( 1) by discrim- inatorily reducing the hours of work and rate of pay on September 22, 1952, in an attempt to discourage continuation of his employees ' union affiliation and we shall dismiss the complaint as to this allegation.4 4. As set forth in the Intermediate Report, Schaefer, the union representative , visited the Respondent ' s place of bus- iness on September 26, 1952. The visit was in response to a request by Respondent ' s employees , both of whom had joined the Union previously , to see if something could be done about the September 22 reduction in hours and rate of pay. Schaefer, accompanied by the employees , identified himself as the union representative and made inquiry as to what could be done towards rescinding the hour and wage cut. Respondent de- fended his action in regard to the cut and accused Schaefer of wanting to start "trouble ." Upon the union representative's 4In view of this finding, we do not pass upon the Respondent ' s objections to the amendment of the complaint , after hearing, to allege the reduction of the pay rate on body work as a violation of the Act. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disavowal of any desire to start trouble and statement that his intent was to attempt to reinstate the previous hours and rates, Respondent stated that no union had ever been in his establishment and that he would not allow one there. Schaefer then pointed out that he was not present "that day to nego- tiate or bargain" on a contract and noted that the Union was not "after the rights without an election." Respondent, in reply, stated that he would not bargain with the Union even if an election was to be held and won by that organization. The Trial Examiner, upon this evidence, found that the Respondent had violated Section 8 (a) (5) and (1) by refusing to bargain collectively in good faith with the Union as the statutory bargaining representative of its employees in an appropriate unit. We do not agree. The Board has previously ruled that, absent special circumstances, a clear and un- ambiguous request to bargain must precede a finding that Section 8 (a) (5) has been violated. In the instant case, the Respondent's employees had joined the Union and that organi- zation had filed a petition for an election by this Board. In this background Schaefer appeared before the Respondent and attempted to discuss a reduction affecting their basic condi- tions of employment. The Respondent and Schaefer discussed this specific grievance and the Respondent informed the Union of his economic reasons for the reductions. Schaefer specifi- cally rejected any intention of approaching the Respondent as the bargaining representative of the employees or of any claim by the Union to assume bargaining rights prior to the holding of an election by this Board. While it is true that the Respondent, on this occasion, made statements to the effect' that he would not bargain with the Union even if that group won the election, the comments of the Respondent on a question not then in issue cannot be held to be sufficient evidence of a violation of Section 8 (a) (5). To hold otherwise would be to find that a refusal to bargain has occurred where there has not been a request for such bargaining and, indeed, where a specific disavowal of such a request is on record. Accord- ingly,s we find that the Respondent did not violate Section 8 (a) (5) by refusal to bargain with the Union and we shall dismiss the complaint in that respect. 6 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent , John A. 5 See Zall Milling Co. v. N. L. R. B., 202 F. 2d 947 (C. A. 2); N. L. R. B. v. Valley Broad- casting Co., 189 F. 2d 582 (C A. 6). 6Member Houston would assert jurisdiction in this case, but does not join in the dismissal of the refusal to bargain allegation and consequently must dissent from that part of the decision. KLINKA'S GARAGE 97 3 Klinka, doing business as Klinka ' s Garage, West Bend, Wis- consin, his agents, successors , and assigns , shall: 1. Cease and desist from: (a) Interrogating his employees regarding their union affili- ation or activities. (b) Threatening his employees with discharge if the Inter- national Union, United Automobile Workers of America, AFL, or any other labor organization of his employees , organizes his shop. (c) Discouraging membership in International Union, United Automobile Workers of America, AFL, or any other labor organization of his employees , by discharging any of his employees , or by discriminating in any manner in regard to their hire or tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing his employees in the exercise of their right to self- organization , to form labor organizations , to join or assist International Union, United Automobile Workers of America, AFL, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make whole Robert Kiefer and Arthur Kiefer for any loss of pay which they may have suffered by reason of the Respondent ' s discrimination against them in the manner described in the section of the Intermediate Report entitled "The Remedy " as modified under the Board ' s Decision and Order herein. (b) Upon request, make available to the National Labor Relations 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 and compute the amounts of back pay due under the terms of this Order. (c) Post at his place of business in West Bend, Wisconsin, copies of the notice attached hereto and marked "Appendix A."'► Copies of said notice , to be furnished by the Regional Director for the Thirteenth Region, shall , after being duly signed by Respondent or his authorized representative, be posted by Respondent immediately upon receipt thereof and maintained by him for sixty ( 60) consecutive days thereafter 7In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent violated the Act by refusing to bargain in good faith, dis- criminatorily reducing hours and rate of pay on September 22, 1952, and by discriminatorily threatening loss of employ- ment through is agent, Mrs. John A. Klinka. Chairman Farmer, dissenting: I would not assert jurisdiction over this small employer. Without purporting to be able to state with complete assurance whether or not the broad sweep of the Board's jurisdiction under the statute extends so far as to reach this small local businessman I would not, as a matter of administrative self-restraint, exercise the authority which we may have over his employer -employee relationships. The Respondent is a small automobile and truck distributor and garage owner who employs at most two garage mechanics and who, with the aid of his wife, manages and works in his own garage. He imports about $62,000 worth of motor vehicles and accessories annually and sells them in and around the little town of West Bend, Wisconsin, where his business is located. He has a franchise arrangement with General Motors Corporation. The Trial Examiner has found that under these facts Re- spondent is an integral part of the General Motors Corpora- tion multistate enterprise, and, indeed this may in a sense be true. But, this small business is an essential part of the operations of General Motors Corporation in precisely the same respect and roughly to the same degree as a single drop of salt water is an essential ingredient of the Pacific Ocean. The time and money necessarily spent in investigating, processing, and considering this case have been substantial, and, in my view, could have been better employed in dealing with cases having a more substantial impact on our national life. This seems to me to be particularly so in this case since it happens to arise in Wisconsin, which has long had a State statute and a State board set up for the specific purpose of handling local disputes. I strongly suspect that its more simple machinery is better adapted to handling a local dispute of this kind. Since I would dismiss on this ground, I do not reach and need not consider the merits of the case. Members Murdock and Styles tookno part inthe consideration of the above Decision and Order. KLINKA'S GARAGE APPENDIX A NOTICE TO ALL EMPLOYEES 975 Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, I hereby notify my employees that: I WILL NOT interrogate my employees regarding their union affiliation or activities, or threaten my employees with discharge if International Union, United Automobile Workers of America, AFL, or any other labor organiza- tion of my employees, organizes my shop. I WILL NOT discourage membership of my employees in the above-named Union or any other labor organization by discriminatorily discharging any of them, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of em- ployment. I WILL NOT in any other manner interfere with, restrain, or coerce my employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organi- zation, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as au- thorized in Section 8 (a) (3) of the National Labor Relations Act, as amended. I WILL make whole Robert Kiefer and Arthur Kiefer for any loss of pay which they may have suffered by reason of discrimination against them. All my employees are free to become, remain, or to refrain from becoming or remaining members of the above-named Union or any other labor organization, except to the extent that such right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act. JOHN A. KLINKA, doing business as KLINKA'S GARAGE, Dated ................ By.................................................... (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date hereof , and must not be altered, defaced, or covered by any other material. 97 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report STATEMENT OF THE CASE The issues in this case are: (1) Whether John A. Klinka, an individual doing business as Klinka's Garage, herein called the Respondent, in his business described below is subject to the jurisdiction of the National Labor Relations Board (herein called the Board); (2) whether Respondent since August 1952, has interrogated his employees regarding their union activities, reduced their workweek and pay rate, threatened to discharge and discriminatorily dis- charged 2 employees on October 6, 1952, and refused thereafter to reinstate them because of their union affiliation and concerted activities, and (3) whether Respondent has since September 26, 1952, refused to bargain collectively with International Union, United Automobile Workers of America, AFL (herein called the Union), as the statutory bargaining representative of all his employees in an appropriate unit. These issues arose on a complaint filed January 9. 1953, by the General Counsel of the Board through the Regional Director for the Thirteenth Region (Chicago, Illinois) based on charges duly filed by the Union, and alleging that the above conduct of Respondent constitutes unfair labor practices affecting commerce, within the meaning of Sections 8 (a) (1), (3), and (5) and 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act Copies of the complaint and charges upon which it is based, with notice of hearing thereon, were duly served upon Respondent and the Union Respondent filed an answer denying the jurisdiction of the Board, admitting his reduction of the working hours and the discharge of 2 employees for cause, but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me at West Bend, Wisconsin, on January 27, 1953, in which all parties participated, being represented by counsel, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to make oral argument, and file briefs and proposed findings of fact and conclusions of law At the close of General Counsel's case, Respondent's motion to dismiss the complaint as amended at the hearing for lack of jurisdiction was denied; his motion to dismiss various paragraphs of the amended complaint for lack of proof was granted as to paragraph 7b, insofar as it charged that Respondent interrogated his employees through Mrs. John A. Klinka as his agent, and was denied otherwise. At the close of the case, General Counsel's motion to conform the pleadings to the proofs in matters of minor variance was granted without objection. Respondent's motions to dismiss the complaint for lack of jurisdiction and on the merits were taken under advisement, they are disposed of by the findings and conclusions in this report. All parties waived oral argument Respondent has filed a brief with the Trial Examiner. On February 18, 1953, the parties submitted a stipulation for correction of the record, which is hereby accepted and made part of the record, and the record is corrected accordingly On March 20, 1953, General Counsel moved on notice to amend paragraph 8 of the complaint to add Respondent's reduction of the pay rate for certain body work as an additional violation of Section 8 (a) (3) and (1). For reasons stated hereafter, the motion is hereby granted, and the complaint is amended accordingly. Upon the entire record in the case, and from my observation of the witnesses. I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent , John A. Klinka, is an individual who, at all times mentioned herein , has owned and operated an automobile sales and service business under the name and style of Klinka's Garage at West Bend, Wisconsin , where he is engaged in the purchase and sale of new and used cars , automotive parts and accessories , and the general service and repair of all types of motor vehicles. In the course of his business , Respondent sells and distributes Oldsmobile automobiles , General Motors Corporation (GMC) trucks, and GMC parts and accessories , under agreements with GMC Truok-Coach Division and Oldsmobile Division of General Motors Corporation , a multistate enterprise doing business throughout the United States In his business , Respondent annually buys motor vehicles and accessories valued at approximately $ 62,000 which are shipped to his place of business from points outside Wisconsin . All GMC trucks bought by Respondent are shipped directly to him from Illinois, KLINKA'S GARAGE 977 all passenger cars are manufactured in Michigan and shipped to him through the GMC zone office in Milwaukee. Wisconsin. I All purchased barts and accessories are shipped to Re- spondent from points within the State of Wisconsin All his sales are made within that State. Respondent orders passenger vehicles from GMC by writing his own order for the cars, and sending it to the GMC zone office in Milwaukee, Wisconsin , whence it is sent to the factory in Michigan. where it is filled. When the vehicle is shipped from the factory in Pontiac , Michigan , to the Milwaukee zone office , Respondent is advised that it is in transit by a production notice sent him from the zone office , upon arrival at Milwaukee , the vehicle is apparently transshipped by truck to Respondent ' s place of business without further request from him. Under his agreement with GMC, Respondent must pay all freight charges on the vehicles from Pontiac, Michigan 2 The record does not show why or for what purpose the vehicles go through the Milwaukee zone office , whether any operation is performed on them there, or whether that is a storage warehouse or distribution point . However , it is clear that Respondent 's orders are filled at the factory in Michigan , not from a stock of vehicles at Milwaukee, and that he pays for their shipment from Michigan, not from Milwaukee. Respondent argues that his business is entirely local in character , precluding any finding that his activities affect interstate commerce to such an extent that a stoppage of its opera- tion by industrial strife would cause substantial interruption to or interference with the free flow of such commerce . 3 He also claims that the provisions of his "Direct Dealers" selling agreements with GMC do not make him an agent or employee of GMC such as to render his business an integral part of that multistate enterprise , within the policy of the Board stated in The Borden Company (Southern Division), 91 NLRB 628, and applied by the Board to franchised automobile dealers in Baxter Bros , 91 NLRB 1480, but that the contracts estab- lish only a vendor -purchaser relationship which does not grant GMC substantial control over Respondent's business or integrate it with the GMC enterprise, or any other GMC dealer , outlet, or branch , or give it an interstate character . He relies on N. L. R, B. v. Bill Daniels, Inc , 202 F. 2d 579 (C A. 6) (decided January 20, 1953) as establishing the "law on the case " This last contention requires a review of Respondent's contracts with GMC. Respondent ' s yearly dealer agreements with the above - named GMC divisions provide, in pertinent part, substantially as follows: (1) Respondent is granted a nonexclusive franchise to sell GMC motor vehicles , chassis, parts, and accessories in Washington County , Wisconsin, and to use the GMC trade name and trademarks during the life of the agreement (para FIRST, Sec 1).4 (2) Respondent is required to devote his full time, attention, and energy to the dealership business (Sec 11), to properly develop to the satisfaction of GMC the sale of GMC products in the area described in the agreement (Secs 1, 16), and to maintain a staff of salesmen and a selling and customer relations organization adequate to take care of the sales potential in said area (Sec 17) (3) If the dealer requests it, GMC will furnish a suggested building plan and layout (Sec. 13): however , the dealer must maintain a place of business with service, parts , and acces- sory facilities, and used car and truck facilities, satisfactory to GMC, which is given the right to inspect the facilities at reasonable times (Sec 12 ) The dealer is required to buy and erect standard GMC product and authorized service signs, and such other advertising signs as are mutually satisfactory to both dealer and GMC (Sec 22) The dealer cannot move his business to a new location , or establish a branch sales office, service station , or place of business , including any used car or truck lot, without prior written consent of GMC (Sec. 12) (4) The dealer must establish and maintain a net working capital and net worth in amounts and form specified by GMC, in order to conform to standards of dealer capital and net worth established and determined by GMC as necessary properly to conduct a dealer 's business (Sec. 14). He must set up and use a satisfactory uniform accounting system designated by GMC, maintain it in strict accordance with a GMC Accounting Manual and, to assure its i The proportionate value of trucks and passenger cars in the annual figure does not appear in the record. 2The agreements provide for shipment ofcertam vehicles f.o.b. Pontiac, Michigan, freight paid by dealer, and for shipment of others freight prepaid by GMC from that point, with the dealer paying such transportation charges as an addition to his invoiced price, SN L. R. B. v. Baltimore Transit Co., 140 F. 2d 51 (C. A 4), certiorari denied 321 U S. 795. 4Provisions of the basic agreement are denoted "Para. FIRST" etc.; provisions in the standard "Terms and Conditions" attached thereto are denoted "Sec. 1," etc. 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proper maintenance , GMC has the right at any time to examine the dealer ' s accounts and records; the dealer is given a copy of the report of such examination (Sec. 15 ) He must also maintain complete records regarding his sales and servicing of GMC products, and permit GMC inspection thereof at any time (Sec. 18) (5) The dealer must also submit to GMC monthly financial and operating statements showing the true condition of his business (Sec. 15) (6) To maintain customer goodwill toward GMC products , the dealer must service new vehicles before delivery to buyers in accordance with a GMC predelivery inspection sched- ule, and must service such vehicles after delivery in accordance with an "Owner ' s Service Policy" prescribed by GMC which the dealer must give each purchaser on delivery of a new vehicle to him. The dealer must always stock GMC parts and accessories sufficient to enable him to fulfill the service policy , and GMC may at any time inspect his service facilities and stock (Sec 21). (7) The dealer 's contract with GMC is a personal one, he cannot transfer or assign it, or make any changes in the ownership , financial interests in, or active management of, his business without prior written approval of GMC ( Para THIRD). (8) If the dealer does not develop the sales of GMC products in his area to the satisfaction of GMC, or does not conduct his business in accordance with the requirements of Sections 11, 12, 14, 15, 16, 17, 18, and 21 noted above, to the satisfaction of GMC, the latter may terminate the agreement on 3 months ' written notice (Sec. 25 (B) 2) The dealer can termi- nate the agreement on 1 month ' s written notice (Sec. 25A). Considering the facts as to the nature of Respondent ' s business and his agreements with GMC, I conclude that his arguments are without merit , and that the decision in Bill Daniels, Inc., supra is distinguishable on the facts and therefore not controlling or persuasive here. In the first place , the court there found that the dealers ' operations were entirely intrastate, their purchases and sales both being entirely intrastate Here , however, all vehicles and accessories purchased by Respondent come to him from out-of -State sources : trucks are shipped to him directly from Illinois, and passenger cars from Pontiac, Michigan, there is no proof to indicate that the latter vehicles are furnished from stock in Wisconsin. Thus, his entire stock of merchandise (except for parts and accessories) originates outside the State , and it is clear that any industrial dispute affecting his business which tended to cut off deliveries thereof would substantially affect interstate commerce 5 In the second place, the provisions of Respondent's contracts with GMC grant GMC far more control over Respondent and his business than the contract in the Bill Daniels case. This is particularly true with respect to the requirements that Respondent maintain sales, service and parts facilities , a sales and service staff, records and accounts , and financial status , satisfactory to GMC, which apparently were not present in the Bill Daniels case Moreover , the requirements that Respondent devote full time to his GMC dealership, and that GMC must approve any move or expansion of his business, under penalty of possible cancellation of his contract , are more indicative of a principal -agent or employer -employee arrangement , than a vendor-purchaser relationship Although it can be said, as the court found in the Bill Daniels case , that such provisions are "efficient mutual arrangements," which redound to the benefit of both parties. I conclude that they give GMC much more effective control over all aspects of Respondent ' s business than a normal vendor -purchaser contract would entail . In fact , the agreement here, in its "control " provisions , is more like that in N. L. R. B. v Ken Rose Motors, 193 F. 2d 769 (C. A. 1), enforcing 94 NLRB 868, where a Ford dealer franchise agreement specified in detail the manner in which the dealer must conduct his business , limitations on use of the seller ' s trade name and trade- mark, the type of premises to be maintained , his method of bookkeeping , manner of adver- tising, and amount of stock to be maintained. In that case, the Court upheld the Board's assumption of jurisdiction on the basis of the nature of the agreement , even though the dealer ' s purchases and sales were entirely local , as in the Bill Daniels case . See also Baxter Brothers, 91 NLRB 1480, which involved an exclusive Chevrolet "dealer franchise" with " control" provisions similar to those here , and A. E. Rogers Co., 103 NLRB 1274. 5 N. L. R . B. v. Conover Motor Co , 192 F. 2d 779 (C A 10); N. L R. B v. Davis Motors, Inc., 192 F. 2d 782 (C A. 10). Respondent 's sales potential in 1952 was greater than the $62,000 value of vehicles sold for he said he could have sold more than the 25 units he received that year , which was only half of his allotment of the preceding year. KLINKA'S GARAGE 979 On all the above facts and circumstances, I find, contrary to Respondent's contentions, that Respondent's operations affect interstate commerce, and that it would effectuate the policies of the Act for the Board to assert jurisdiction in this case 6 IL THE LABOR ORGANIZATION INVOLVED International Union , United Automobile Workers of America . AFL, is a labor organization within the meaning of Section 2 (5) of the Act, which admits to membership employees of Respondent. M. THE UNFAIR LABOR PRACTICES A. Preliminary union activity; the appropriate unit; majority status of the Union In August and September 1952, the Union conducted an organizing campaign among em- ployees of automobile dealers and service garages in and around West Bend. Wisconsin. In this period, Arthur and Robert Kiefer, brothers, and the sole employees in Respondent's garage, signed cards authorizing the Union to represent them for purposes of collective bargaining Robert Kiefer signed his card August 25, 1952, and Arthur signed his early in September, about a month before his discharge on October 6, 1952 Respondent admitted at the hearing, and I find, that all employees of Respondent at his place of business in West Bend, Wisconsin, excluding executives, salesmen, office clerical employees, and all supervisors as defined in the Act constitute, and at all times material herein, have constituted, a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The two Kiefers were the only employees in that unit during the above period and at the time of their discharge. I therefore find that on September 26, 1952 (the date of the sole conversation between the union representative and Respondent described below), and at all times since, the Union was and has been the bargaining repre- sentative of a majority of Respondent's employees in the above unit, and by virtue of Section 9 (a) of the Act, was and has been the exclusive representative of all employees in said unit for purposes of collective bargaining with Respondent'7 B. Interrogation and threats After Robert Kiefer joined the Union on August 25, 1952, the two brothers had several talks with Respondent at the shop about the Union. When they first told Respondent the Union was coming to town, Respondent thought it was a good idea, as it might equalize service charges among the local dealers, in later discussions, he changed his view, stating a union would not work in his shop, because it was a small place and not like an industrial plant. He also told them in these discussions that there would not be any union in his place, and that he would get rid of them before he would have a union there In all the discussions, the Kiefers indicated to him that they favored the Union. On September 15, 1952, or a day or two after, when Arthur Kiefer received his mid-September pay check at the shop. Respondent asked him if he belonged to the Union When Arthur admitted he did, Respondent told him that there would be no union in his place, that before there would be a union there, he would 61 have examined other Board decisions cited by Respondent and conclude that they are distinguishable on the facts, inasmuch as none of them contained facts indicating control over the employer's business by a multistate enterprise, to the extent shown here. The same is true of N. L. R. B. v. Shawnee Milling Co., 184 F. 2d 57 (C. A. 10). 7Respondent relies upon an admission of Robert Kiefer on cross-examination, that when he signed the union card he had no "intention" of having anybody bargaining for him because "we weren't organized into a local union yet." However, the context of this answer indicates that he had in mind formal bargaining through a bargaining "committee." Although he was not clear at the hearing as to his intent when he signed the union card, the fact that he and his brother asked the union representative in the week of September 22 to speak for them with Respondent over their cut in hours and pay, as found hereafter, was a reaffirmation of their prior designation of the Union as bargaining representative, which persuades me that both clearly intended to have the Union act as their bargaining agent when they signed the cards. 322615 0 - 54 - 63 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lay off Arthur and do the work himself. 8 Respondent 's inquiry as to Arthur Kiefer' s union affiliation was illegal interrogation and per se coercive under settled law , and I find that Respondent thereby violated Section 8 (a) (1) of the Act. His statements to both employees that he would get rid of them or lay them off and do the work himself, before he would have a union in the shop , was a clear threat of discharge if the Union organized his shop and was calculated to discourage their continued union affiliation . I find that by this remark, Re- spondent further interfered with, restrained , and coerced his employees in the exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. C. The reduction in hours and rate of pay On September 12, 1952, the Union filed a petition with the Board in Case No. 13-RC-2955, for an election and certification as collective -bargaining agent of Respondent 's employees in the appropriate unit found above Respondent received notice of the filing of the petition on September 13, 1952 On September 18, 1952, Respondent had a conversation in West Bend with Mrs Dom, a Board agent assigned by the Thirteenth Regional Office to investigate the petition, in which he learned that his 2 employees were affiliated with the Union. He later received verification of this fact from the representation petition, which he received on October 1, 1952, and which indicated the scope of the appropriate unit as found above, that there were 2 employees in the unit, and that 2 employees supported the petition. 9 Just prior to September 22, 1952, Arthur Kiefer was getting $1.35 an hour as a garage mechanic Robert was getting $1.40 an hour for the same work, and $2 an hour for body work on customers' cars. Starting October 1951, both employees worked 60 hours a week until the summer of 1952 when, at their request, they were allowed to take off alternate Saturday afternoons, so that just prior to September 22, 1952 , they were working alternate 55- and 60-hour weeks On September 22, 1952, Respondent reduced the Kiefers' working hours from 55 and 60 hours to 40 a week When he made the change, he told them he was going on shorter hours because he was paying out too much money for labor , and he would not pay for "loafing hours," for something he was not getting . He also told them " That's what the union is doing for you, it will be forty hours." At the same time, Respondent reduced Robert Kiefer's pay rate for body work on customers ' cars to $1.55 per hour . Robert Kiefer first learned of the cut in pay and hours from Respondent at the shop on Sunday, September 21, 1952. Shortly after he came to work Monday, September 22, at 7 a in., Mrs. Klmka called him at the shop on the telephone , and asked what he was doing in the shop. He replied that he wanted to start work at 7 a. m., instead of at 8, as previously ordered by Respondent, so that he could get out in time to report to an evening part - time job between 4 and 5 p m.10 Mrs. Klinka replied, "Oh, no, you don't; that makes no difference, from now on you are going to do as we tell you." She also asked Robert if her husband had told him he was being cut in his hourly rate. When Robert said "no," she then told him she wanted him to understand that he was getting only $1.55 an hour for body work thereafter, and said "that's what the union did for you; all our former contracts are out the back door " and "it ' s all off now, if you want a union that's what you are getting " She also told Robert that if he wanted a union, he should "get out and go somewhere where they had a union ," and leave them alone. 11 Respondent claims that the real and only reason for the reduction in hours and pay rate was economic necessity, that he had been paying out more for labor in the service work than 8 These findings are based on credited testimony of both Kiefers, as corroborated in part by admissions of Respondent Testimony of Respondent inconsistent with these findings is not credited for reasons stated elsewhere herein. 9 These findings are based on the petition in Case No. 13-RC-2955, stipulated facts, ad- missions of Respondent, and testimony of Frances Dom. 1o Shortly before September 21, Respondent had ordered Robert Kiefer to report for work at 8 a. in., instead of his usual 7 a. in. starting time. When Robert learned of his reduction in hours, he got a part-time job for 4 or 5 hours in the evening, arranging to start it the night of September 22. He had already told Respondent he still wanted to start work at 7 a, in., and for that reason reported for work at 7 a. in. on the 22nd. ii These findings are based on credited testimony of the two Kiefers and admissions of Respondent and Mrs. Klinka. I do not credit testimony of Respondent and his wife in conflict with these findings, in view of their admissions and other facts found herein which clearly indicate Respondent's antiunion animus and other unfair labor practices. KLINKA'S GARAGE 981 he took in in that department, and that he had to cut down expenses because business had declined during the last 6 months of 1952. I have already found above that at the time of the reduction he told the Kiefers substantially the same thing, including the fact that he would no longer pay for idle hours during which he received no production In addition, Respondent adduced proof from his records which indicated that during the first 9 months of 1951 his service department showed a cash gross profit of $332.47, while for the like period in 1952, it suffered a gross loss of $1,443.56 Respondent and his wife also testified that in June 1952, during a discussion of the business finances, his wife had complained that the income from the service department was not sufficient to keep two employees, and had suggested the immediate layoff of one man, but they decided to defer that action until after their vacation, in hopes that the tourist trade would increase their business. However, analysis of these contentions and testimony in the light of other circumstances disclosed by the record persuade me that economic necessity was not the real or compelling reason for the reductions. In the first place, the profit and loss figures produced by Respondent are misleading, because the gross receipt figures do not include any charges to customers for the Kiefers' labor in predelivery servicing of new vehicles and the replacement of parts or correction of defects during the manufacturer's warranty period Respondent does not show how much of the labor cost for such work is included in the gross labor costs for either year, nor did he indicate whether or not he received any allowance in price or credit otherwise from the manufacturer for such labor items. Thus, his figures do not reveal the true relationship between all his income, whether cash or credit, based on the Kiefers' labor, and the pay- ments made to them for their labor. Second, while Respondent intimated in his testimony that the "loafing hours" he complained about were due to loafing on the job by the Kiefers, there is no substantial proof that they were deliberately cheating in this respect; 12 rather, the testimony of Respondent and Arthur Kiefer indicates that the service business fluctuated, at times to such an extent that the volume was more than the Kiefers could handle, and there was work for three full-time mechanics, while at other times it became slack and they were idle. It appears that idle hours were at times a natural concomitant of the business, and while Respondent often complained about it, there is no proof that he tried to use the Kiefers' time more efficiently in such periods. Moreover, in their early discussions of economy measures, Respondent and his wife determined only upon a layoff of one man as the means to that end; they did not even discuss reductions of hours or pay. Respondent claimed that he found out about the alleged loss of money on customer body work only on the day he reduced Robert Kiefer's pay rate for that work, but he produces no figures from his records to support that claim These facts and circumstances persuade me that Respondent did not consider the "loafing hours" as a threat to his business sufficient to warrant remedial action until September 22, and that he first conceived the idea of reducing the work hours and pay rate at the time he put it into effect on that date (or the day before). His sudden decision on that date, and prompt action on it, coming within a week after he learned that Arthur Kiefer had joined the Union, and about 3 days after he learned that his employees were supporting the Union's petition for certification, when considered with his threat to Arthur around the 15th, and to both at other times in the same period, that they would be discharged if the Union organized the shop, and the statements of him and his wife 13 to the Kiefers at the time of the reductions "That's what the union did for you," convince me that Respondent conceived and instituted the reductions in retaliation and as a penalty for his employees' adherence to the Union and support of its attempts to secure collective-bargaining 12 The question of their nonproductive hours on October 3, 1952, will be considered in the discussion of their discharge. 13Mrs. Klinka's principal duties in the business are those of bookkeeper, handling and keeping the records and accounts, including payrolls, and paying all bills; she performs these duties at home. In practice she does not usually give orders directly to employees regarding their duties There is no formal partnership agreement between her and Re- spondent, and she draws no salary from the business. However, Respondent admitted, and I find, that she has equal control with him over the conduct of the business That she has definite authority to speak and act for Respondent on personnel problems is indicated by the facts that: (1) She was the one who initiated the idea of reducing the work force for economy reasons in June 1952; (2) she ordered Robert Kiefer, at Respondent's request, on September 22, 1952, to report for work at 8 a m., instead of 7 a. m.; and (3) she recalled Arthur Kiefer to work on October 8, 1952, as found hereinafter. On these facts it is clear, and I find, that her acts and conduct found herein are chargeable to Respondent 982 DECISIONS OF NATIONAL LABOR REALTIONS BOARD status in his shop. This conduct amounted to a discrimination against his employees as to their rates of pay and hours of employment because of their union affiliation and was calcu- lated to discourage continuance of that affiliation. I find that Respondent thereby violated Section 8 (a) (3) of the Act. u Such conduct also tended to interfere with, restrain, and coerce employees in the exercise of their guaranteed rights, and I conclude and find that Respondent thereby also violated Section 8 (a) (1) of the Act. is D. The request and refusal to bargain Following Respondent's reduction in their hours and pay on September 221 1952, the Kiefer brothers told Robert Schaefer, the Union's representative, about it at a union meeting that week, and asked him to see if something could be done about it. On Friday, September 26, 1952, Schaefer visted Respondent's place of business about noon to discuss the matter with Respondent. When he arrived, he asked the Kiefers to join him, and he then talked to Respond- ent in their presence in the service department After introducing himself to Respondent by name and identifying himself as the union representative, is Schaefer told Respondent that the Kiefers were members of his Union and that he was speaking for them, that he understood they had received a cut in hours and in the pay rate for body work, and asked Respondent what he was going to do about restoring them to their former hours and pay Respondent admitted the reductions, and said he had to watch expenses, that there were "too many loafing hours," that he would not pay for something he was not getting. He also said that from then on he would only pay $1.55 an hour for body work, the same as other local garages were paying. Respondent also told Schaefer that he was just there to "start trouble." Schaefer denied this, saying he was there to try to get the boys back to their regular wages and hours, and to straighten out the problem the best way to help the boys and save trouble for Respondent. Respondent replied that Schaefer was wasting his time, that Respondent had not had a union in his place in 30 years, and did not see why he should have one now. He further stated that neither the National Labor Relations Board nor the Union was going to come in there and tell him what to do, that no one was going to make a "clown" out of him Schaefer stated that he had no desire to negotiate a contract at that time, that the Union was not seeking bargaining rights without an election, and that an election would be held sooner or later. Respondent then said it made no difference if the boys did win an election, he would not bargain with the Union, and would go to jail before he would see a union in his place, that "this is not Russia yet." During this discussion, Schaefer made notes on a pad, and Respondent told him he could "fill 14 Westinghouse Pacific Coast Brake Company, 89 NLRB 145; Falstaff Distributing Company, 104 NLRB 760. isOn March 20, 1953, after the hearing closed, General Counsel moved on notice to add Respondent's reduction of pay for customer body work to the complaint as an additional violation of Section 8 (a) (3) and (1). Respondent opposed the motion on various grounds. While neither the original complaint nor the answer mentioned the pay reduction, Respondent's brief does not argue the point specifically, and Respondent was assured by General Counsel at the close of the hearing that the motion to conform pleadings to proofs did not involve a change in the substantive issues, it appears nevertheless that Respondent, his wife, and Robert Kiefer testified fully at the hearing on the pay reduction. It occurred at the same time as the reduction of hours and Respondent advanced substantially the same economic reasons for both at the hearing and in his brief. Respondent does not indicate in his opposition to the motion that he has any other defense to the pay reduction, aside from that he offered on the cut in hours, which he would have introduced if the complaint had mentioned the pay reduction from the outset. Thus, the issue was fully litigated, Respondent had full opportunity to adduce evidence thereon, and has suffered no surprise. The violation was contemporaneous with and of the same type as the illegal reduction in hours. Under the circumstances, if the Board has jurisdiction to make a finding as to the one act, it can certainly deal likewise with a similar, contemporaneous act having the same illegal object. Cf. Somerset Classics, Inc., 90 NLRB 1676, 1678, enforced 193 F 2d 613 (C. A. 2), certiorari denied 344 U S 816. I find Respond- ent's objections to the amendment without merit, and hereby grant the motion Pacific Mills, 91 NLRB 60; Fulton Bag & Cotton Mills, 75 NLRB 883, 885; Marshall & Bruce, 75 NLRB 90, 93. i6Respondent denied that Schaefer introduced himself as the union representative, but admitted that early in the conversation he could "read between the lines," and "see what was going on," and learned that Schaefer was the union representative KLINKA'S GARAGE 983 up that tablet on both sides," that itwould not help, that he would get rid of the boys before he would allow a union there, and do the work himself. After further discussion, during which Respondent refused to rescind the reduction in hours and pay, the meeting terminated. 17 I find that Schaefer's query of Respondent as to what he would do about rescinding the cut in hours and pay of his employees, and his statement of his desire to straighten out the matter for the benefit of both parties, all made in the presence of all employees in the unit, was a sufficient request by the Union, as representative of such employees, to Respondent to bargain collectively with the Union as such representative with respect to their rates of pay and hours of employment. 18 The fact that the union representative did not present a contract then or later, and expressly disclaimed any desire at that time to negotiate a contract, does not detract from the validity of the request. Moreover, even if the request had been insufficient in fact or in law, or had not been uttered at all, the Union would have been excused from making it by Respondent's announcement that he would not have a union in the shop, whether or not the Union won an election. In the face of Respondent's announced determination not to recog- nize the Union under any circumstances, the Union was not required to make a request that would have been a useless gesture 19 I further find that Respondent's statements to Schaefer that he was just there to "start trouble," that he was wasting his time, that neither the Board nor the Union was going to come in there and tell him what to do, that "it was going to stay just the way it was for the time being," that it made no difference if the employees did win an election, he would not bargain with the Union and would go to jail before he would see a union in his place, and that he would get rid of the employees and do the work himself before he would allow a union in his shop, clearly evidence Respondent's determination not to recog- nize or bargain with the Union, and I conclude and find that Respondent thereby refused to bargain collectively in good faith with the Union as the statutory bargaining representative of his employees in an appropriate unit, in violation of Section 8 (a) (5) and (1) of the Act?i Re- spondent's final threat in the presence of his employees to discharge them if the Union organ- ized his shop was also an independent violation of Section 8 (a) (1) of the Act. E. The discharges When Arthur Kiefer came to work at 7 a in. on Monday, October 6, 1952, he found his and his brother's timecards missing from the rack at the time clock. When he approached Respondent to ask where they were, Respondent handed him a pay check and said, "That's it." Arthur said he would return at 8 a. m to pick up his tools and turn in his keys, and Respondent re- plied, "All right." When Arthur returned at 8 a. in , Robert Kiefer was then reporting for work, and Respondent handed Robert a pay check and said he was "through " The brothers then procured a trailer, came back and loaded their tools, and turned in their keys to Re- spondent. Arthur asked Respondent why they were being laid off, and Respondent replied, "I told you guys if you wanted a union, this is it, I'll do the work myself, that's what the union did for you." The brothers then left the premises. These findings are based on credited testimony of both Kiefers, as corroborated in part by that of Respondent, and warrant the conclusion prima facie that the Kiefers were discriminatorily discharged because of their affiliation with the Union. t These findings are based on the credited and mutually corroborative testimony of Schaefer and the two Kiefers, which is corroborated in part by the testimony and admissions of Re- spondent. He admitted that the discussion got heated, that there was loud talk, and indicated that he got angry because Schaefer was trying to "dictate" to him "out of the clear sky," and that he finally told Schaefer "it was going to stay just the way it was for the time being." 18 Respondent clearly recognized Schaefer's remarks as a request to negotiate, for he immediately countered with his economic explanation of the reduction in pay and hours. A request to bargain need not be formal or express, so long as there is a request by clear implication, Joy Silk Mills v. N. L R. B., 185 F. 2d 732 (C A. D. C.), certiorari denied 341 U. S. 914. 19 Old Town Shoe Company, 91 NLRB 240; Norfolk Southern Bus Corp. v. N. L. R. B„ 159 F. 2d 516 (C. A. 4) enforcing 66 NLRB 1166, certiorari denied 330 U. S. 844. 20 The fact that Respondent gave certain economic reasons for the reduction in pay rates and hours, in answer to Schaefer's request to negotiate thereon, did not discharge his bar- gaining duty, for he immediately foreclosed any discussion or negotiation on the subject by his ensuing remarks found above. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In his brief, Respondent claims the Kiefers were discharged because of their derelictions of duty on October 3, 1952, and also because of their prior conduct. The record shows, and I find, that almost from the start of his employment in November 1950, Robert Kiefer was often embroiled in arguments, at first with a former employee who left shortly after Robert was employed, and thereafter with Respondent. The arguments with Respondent involved who should do the customer body work, how it should be done, whether body work on certain of Respondent's cars should be paid for at the higher customer rate of $ 2 per hour or the garage rate, whether or not Robert should make out certain bills, the time when he should report to work, and the price to be charged by the Kiefers for certain installation work. However, the record also shows that many of these arguments, while heated, were short-lived, and Respondent and Robert apparently worked amicably after they passed, despite his dis- agreement with Respondent on methods of work, hours, etc., and his general truculence, there is no substantial proof that Robert was insubordinate; he usually did what he was told after each spat, although after one argument with Respondent about body work on a garage car, Robert himself complained to Mrs. Klinka about Respondent's attitude and threatened to quit, but was dissuaded from doing so by her 21 Further, despite the arguments about body work, Respondent still permitted Robert to do that work up to his discharge and bought new body repair equipment whenever Robert suggested it, even buying an expensive sanding ma- chine at his suggestion shortly before his discharge. In addition, when Respondent and his wife went on a 10-day vacation in July and early August 1952, they left the Kiefers in full charge of the garage in their absence, and they also left them in charge on Friday, October 3, 1952, when they went to Milwaukee on business These facts indicate that, despite their shortcomings, the Respondent apparently reposed much confidence in the Kiefers and their work right up to their discharge It is also significant that both employees were given several pay raises during their employment 22 Finally, Respondent himself admitted that, after discussing the events of October 3, 1952, with his wife over that weekend, he decided to discharge them both "for what they did on Friday, " 23 and Mrs. Klinka admitted that "we wouldn't have fired them yet, but on October 3rd, that was the final clinch " From all these circumstances, I find that the Kiefers' conduct prior to October 3, 1952, was not the real or a motivating reason for their discharge. I turn to their conduct on October 3, on which Respondent places his main reliance. On that Friday, Respondent and his wife went to Milwaukee on business, leaving the two Kiefers in charge of the garage The day before, one Fellenz had arranged with Robert Kiefer to bring in his truck early on Friday-to have some panels on the body sealed with lead, which was about a day's job. Robert Kiefer did between a half hour's and an hour's work on that job, completing one panel, during the morning. Besides attending the gasoline pump and other routine duties, the brothers worked an hour and 50 minutes on one Justman's car, and about 42 minutes on Meyer's car 24 About noon, Mrs Herman Persike, the wife of an up-State Ford dealer passing through town, brought in her Lincoln automobile for emergency repair, claiming the engine was missing. Robert started to trace the trouble, both brothers worked on it at times singly, at times together. They tested the ignition system with a standard testing machine, and installed new spark plugs, but could not locate 21Practically all the arguments were between Respondent and Robert; Arthur apparently had few disagreements with Respondent and never "stood up" to him like Robert. That Re- spondent and Robert struck "sparks" from each other during arguments is apparent from their demeanor on the stand: Robert is a young, well-spoken man with a determined air and manner of speech; Respondent. is an elderly man of apparent foreign extraction who manifested an equally determined air and had a brusque and abrupt manner of speech. 22 Robert received three 5-cent an hour raises within the first year of his employment, and from October 1951 onward also received a special rate of $2 per hour for customer body work, which continued until September 22, 1952, as found above. Arthur, who started work October 22, 1951, received two 5-cent raises in 1952, on May 1 and September 1, respectively. 23Shortly after this admission, in response to a leading question from his counsel, he said "there's more to it than that, I mean we found that out, but that was what happened on the third mostly." 24 The time on these jobs is derived from the charge tickets made out by Robert that day, which show the amount charged to and paid by each customer; the time is figured by dividing the charged amount by the shop rate of $2.50 an hour. It was a shop practice for the Kiefers and Respondent to punch the time spent on each job on timecards, and the charges to the customers were based on that record. KLINKA'S GARAGE 985 the trouble immediately While they worked, Mrs Persike called her husband on the phone and had Robert talk to him. Persike told Robert to check the ignition coil, lead wires in the ignition system, the, fuel pump and another part of the fuel system, but gave specific orders not to touch the distributor which he said had been renewed about 300 miles back. Following these instructions, the Kiefers checked the parts indicated, and tried other tests, but without success. Mrs Persike then made arrangements to have the car towed to the garage of the local Ford dealer after she learned from the Kiefers that they had no authority to loan her anothercar in which to traveltoher destination while the Lincoln was being repaired. When the car reached the Ford garage, the dealer's mechanic located the trouble in the ignition system, and installed new ignition points and a condenser in the ignition system, all in about an hour's time The Kiefers charged Mrs Persike, and she paid Respondent, $5.00 for their labor , representing 2 hours' work. During the afternoon, Robert Kiefer also did a carburetor and ignition overhaul job on a United States Government truck which was brought in shortly after lunch and had to be finished that day 25 Fellenz did other work on his truck that day while the Kiefers were engaged on other jobs, and took it out with the body unfinished that night; he complained to Respondent when he returned that night about the length of time the Kiefers had spent on the Lincoln job at the expense of work on his own truck. 26 About 3:45 p in,, 15 minutes before Arthur Kiefer's quitting time, another customer, Rodenkirk, brought in a car with fuel piimp trouble, but Arthur refused to start on it , as it was too late and Robert was busy on another vehicle which had to be delivered by 5 p m. Arthur suggested the customer bring the car in Saturday morning when Respondent would be working Respondent installed a new fuel pump kit on that car in about an hour on Saturday 27 Respondent's timecard records and Robert Kiefer's testimony indicated that the Kiefers accounted for only about 7 hours ofworkbetween them on Friday, leaving 9 hours unaccounted for However, this figure must be reduced by the unspecified amount of time Robert Kiefer spent on the Government truck, the time allowed them for their morning snack about 9 or 9:30 a. in , and time spent in attending the gas pump and other routine duties. It is clear, however, that the Kiefers did 5 repair jobs that day (Persike, Rahn, Justman, Meyers, and the Government truck), and part of the Fellenz body job, 2 of these cars came in during the afternoon and were "rush" jobs to be finished that day; Robert apparently abandoned the Fellenz body job after working a short while on it, in favor of the regular and emergency repair and service work on other cars Thus, the record indicates that they were quite busy in the afternoon, much more so than in the morning Respondent intimates that the Kiefers were derelict in their work on the Persike car The record shows that they followed standard testing procedures in checking the ignition and fuel system on that car, just as the Ford mechanic did later that day, and they failed to find the distributor trouble, as he did, only because they followed the owner's orders not to check that unit 28 Moreover, there are 25I credit Robert Kiefer's clear testimony on this point, even though the shop record he made out for the job had no entries for parts or labor on it; Kiefer testified that at times he failed to make out tickets after the job is finished; in this instance, he had no clear recollection of filling out this charge ticket, and it is evident he did not make it out at the end of that day, and he had no chance to do it on Monday, October 3, because he was discharged as soon as he reported for work that morning. I do not credit Respondent's testimony that he did all the work on that truck Saturday morning, October 4; he admitted the "hood had been raised" on the vehicle when he inspected it Friday night, which indicated that Robert had started on it; and although Respondent detailed the work he claims he did on it, he did not produce any time- card record, or bill to the customer, to support his story, although his wife was able to pro- duce other labor and charge records for work done by the Kiefers the day before, as appears above, 26Fellenz was apparently not charged for the partial work done on his truck that day; there is no proof as to when the job was finished, or what Respondent charged him for it. 27 The above findings are based on credited testimony of both Kiefers, Mrs. Klinka, and Respondent. Testimony of Respondent in conflict therewith is not credited, in view of the deficiencies of his testimony about the Government truck noted above, his admissions on other subjects noted herein, and other indicia of his general unreliability as a witness mentioned herein. 28While they could have used more initiative, ignored his order and checked the distributor anyway, and thus located the trouble, in all the circumstances I am unable to conclude that their compliance with the owner's orders was a dereliction of duty toward Respondent, 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other circumstances which indicate that the Kiefers' seeming waste, of time and poor work on October 3 were not the real or motivating reasons for their discharge First, Respondent did not question them about events of that day, before their discharge, merely acting upon a complaint of a disgruntled customer who ridiculed the Kiefers' work when they dropped it in favor of other and emergency work, and a report from the Ford dealer; he did not bother to learn the Kiefers' version of the events of that day before firing them. In addition, he did not mention their alleged loafing or poor work on the 3rd to them at the time of discharge, although their "loafing" had always been a sore point with him, and he had specifically mentioned that to them and Schaefer on September 22 and 26 as reasons for reducing their hours and pay His silence on these subjects, and his summary discharge of them on the morning of the 6th, when considered in the light of his clear antiunion animus, his prior coercive threats to discharge them, and his other unfair labor practices as found above, and his remarks anent the Union when he discharged them as found above, are circumstances which in combination indicate persuasively that Respondent discharged the Kiefers on October 3 because of their union affiliation and in fulfillment of his previous threats of discharge for that reason, and that he seized upon, and now advances as the reason for the discharge, their alleged conduct of the 3rd as a pretext to conceal the real discriminatory motive for their discharges. Respondent's rehiring of Arthur Kiefer shortly after the discharges, and the circumstances of his recall, compel the same conclusion. Respondent tried to operate the shop for 3 days by himself, and then had Mrs. Klinka call Arthur Kiefer on the phone the night of October 8, 1952, to recall him to work. She asked Arthur to return to work saying the work was too much for Respondent, that he could not handle it alone She also said, "We'll be working more than 40 hours." Arthur returned to his job October 9, 1952. A few days afterward, Respondent told him that if any customers or others should ask where he had been, he should say he had gone hunting. Respondent's rehiring of an allegedly unsatisfactory em- ployee within a few days after conduct which is claimed to have caused his discharge, and his request that the employee disguise the reason for his absence, are further indications that misconduct was not the real reason for the discharges, and that Respondent desired to conceal the true discriminatory motive. Further, Respondent's own admissions show that he never intended to fire either or both for misconduct. Under questioning of his own counsel, Respondent said the discharges were "for the time being," i e , temporary, and also said, "Well, I would have hired somebody, sure if I wouldn't have got one of them I would have to have somebody, I was going to have one man come back." On cross-examination, he testified: 0. At the time you fired him (Arthur), you didn't then expect you would take him back, is that correct? A. I wouldn't say that. He then said he determined to rehire Arthur on the evening of the 8th, when his wife called him on the phone. This testimony contradicts his story that he intended to do the work himself after October 3, and indicates, rather, that he was planning, even when he fired both, to rehire one When pressed for the reason why he rehired either when both were guilty of the same misconduct, he equivocated, finally saying "That's just my privilege." He explained that he rehired Arthur, rather than Robert, because he was the cheaper of the two, had more dependents, and was easier to get along with There is no substantial proof that Respondent intended, or tried, to hire new help. The above further disproves his contention that both employees were unsatisfactory and discharged for that reason. In addition, his choice of Arthur was a poor one from the economic point of view because Robert was clearly the more valuable: Respondent admits both men were equal in mechanical ability, but Robert was more experienced, and also was the only one with experience and proven ability in body work 29 Furthermore, the discharge of Respondent's whole work particularly where he got paid for their work. Respondent intimates that the Kiefers' story regarding Persike's orders not to touch the distributor was a recent fabrication, concocted after Arthur Kiefer learned from the Ford mechanics what they had done to repair the Lincoln, in order to account for their inability to find the trouble. Respondent did not produce the Persikes to testify on this subject and in the absence of their testimony I must accept the clear, straightforward, and uncontradicted testimony of the Kiefers in preference to any con- trary inference suggested by Respondent and unsupported by substantial proof. 29Respondent admitted that he has been doing the body work since Arthur's recall and that the latter has been learning that work by helping him. KLINKA'S GARAGE 987 force on the 3rd was impractical, as he quickly discovered after trying to carry on alone for 3 days, and was also contrary to his alleged retrenchment plan of June which contem- plated the layoff of one man; if that plan still prevailed in the fall when Respondent reduced the hours and pay, it is strange that he did not follow through on October 3, and lay off only Robert who was allegedly the least satisfactory of the two This deviation from his professed economy plan further indicates an ulterior motive in the discharges. Finally, when the above circumstances are considered together with the facts that Re- spondent recalled Arthur the night of October 8, in accordance with his admitted intent to rehire one of the brothers, shortly after his counsel had learned the same day from a Board agent about the Board's established policy against holding elections in one-man units, 30 I am convinced that Respondent conceived the plan on or before the 6th of October of discharging both employees because of their union activity, using their misconduct on the 3rd as a pre- text, and shortly rehiring one of them, and that he actually put the plan into effect on the 8th, for the purpose of reducing his work force to one man, thereby bringing himself within the above Board policy, forestalling an election and thus thwarting the Union's attempt, after it had secured majority status, to secure official sanction for that status through Board proce- dures, all in furtherance of his previously expressed determination not to have a union in his shop under any circumstances On the basis of all the above facts and circumstances, I find and conclude that Respondent discharged Robert and Arthur Kiefer on October 6, 1952, because of their union affiliation and support of its attempt to secure statutory bargaining status through a Board-conducted election, and that by such discharge Respondent has discriminated against his employees in regard to their hire and tenure of employment in order to discourage membership in the Union, in violation of Section 8 (a) (3) and (1) of the Act. 31 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recom- mend that Respondent cease and desist therefrom and take certain affirmative action which I find will effectuate the policies of the Act. I have found that Respondent discriminated against his two employees on September 22, 1952, by reducing their workweek from alternate 55- and 60-hour weeks to a 40-hour week, and against Robert Kiefer by reducing his rate of pay for customer body work, and further discriminatorily discharged both employees on October 6, 1952, all in violation of Section 8 (a) (3) of the Act Both employees are therefore entitled, in accordance with established Board practices, to reinstatement with back pay to the extent necessary to recreate their status quo at the time of the discrimination against them. 2 Arthur Kiefer was reemployed by Respondent on October 9, 1952, at his former job and rate of pay, but has worked a 50-hour week since, in contrast to his former work schedule. I shall therefore recommend that Respondent offer Arthur Kiefer immediate and full reinstatement to his former or a sub- stantially equivalent position, which shall include reinstatement of his former work schedule with overtime as aforesaid, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him. 31 Griffin Wheel Company, 80 NLRB 1471 and cases therein cited. Mrs. Dom, a Board agent assigned to handle the Union's representation petition, told Mr. Marth, Respondent's local attorney in West Bend, on October 8, 1952, during the day, that if Respondent employed only one person , under normal Board procedure the Board would not hold an election in a one- man unit. 311 find no substantial proof that Respondent threatened his employees with loss of jobs because of their union activities through Mrs. Klinka, as his agent, and I will recommend that the complaint be dismissed in this report. 31Republic Steel Corporation (Upson Division) 77 NLRB 1107; Westinghouse Pacific Coast Brake Company, 89 NLRB 145. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 26, 1953, Respondent offered Robert Kiefer immediate reinstatement to his former position as "general auto repairman" at the rates effective at the time of his dis- charge, i. e , $140 an hour for general repair work and $1.55 per hour for customer body work On January 27, 1953, Robert Kiefer indicated his willingness to accept the offer, provided he was reemployed on the identical terms of employment prevailing before Re- spondent's unfair labor practices, i. e , $1.40 an hour for general repair work, $2 an hour for customer body work, and alternate workweeks of 56 (sic) 33 and 60 hours. As the reduction of the employees' workweek to 40 hours and reduction of Robert Kiefer's pay for customer body work to $1.55 an hour were violations of the Act, it follows that Respondent's offer is insufficient and not bona fide, insofar as it fails to offer to restore him to his former hours of employment and rate of pay. I shall therefore recommend that Respondent offer Robert Kiefer immediate and full reinstatement and make him whole, to the same extent as in the case of Arthur Kiefer. 96 The requirement of reinstatement is not affected by the circumstances that, since October 9, 1952, Respondent has been handling his service work with the aid of only one employee, working 50 hours a week. Whether this is due to a drop in volume of business or more effi- cient use of his own and Arthur Kiefer's time in the garage, it does not relieve Respondent of his obligation to restore both Kiefers to the employment conditions which prevailed before Respondent's illegal reduction of hours and pay So far as the record discloses, they would have been permitted to remain on the job, working alternate 55- and 60-hour weeks, and at their then existing rates of pay, regardless of business fluctuations had it not been for their union activity, The only way to undo the wrongs perpetrated against them is to restore them to their former positions in all respects. If this results in some hardship or loss to Re- spondent, as he intimates in his brief, he must bear it himself; to permit him to shift it to the victims of his unfair labor practices would enable him to enjoy the fruits of those prac- tices and would defeat the remedial purposes of the Act. Southeastern Pipeline Company, 103 NLRB 341. Respondent argues that he is not obligated to make any further offer of reinstatement to Robert Kiefer because the latter, in his reply of January 27 to the offer, demanded a guaran- tee of a 55- or 60-hour week This contention is without merit In the first place, although Respondent's written offer does not mention any specific hours of work, his brief indicates that he was offering Robert reinstatement to the same 50-hour week as Arthur was working. For the reasons and under the cases cited above, this offer was insufficient, and Robert was justified in treating it as a nullity, because it did not contemplate bona fide reinstatement to his former or a substantially equivalent position Further, Robert's letter of January 27 was nothing more than an expression of a willingness to accept reinstatement at the same rates of pay and hours of employment as he enjoyed prior to Respondent's discrimination against him Under the above cases, this position was proper and did not relieve Respondent of making a proper offer of reinstatement The loss of pay for each employee should be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 $ I shall also recommend that Respondent be ordered to make available to the Board, on request, payroll and other records to facilitate the analysis and checking of the amount of back pay due 331 consider the variance between the request for a 56-hour week and the prior 55-hour week a minor one which does not vitiate the demand, since he was in effect requesting restoration of the 6-day workweek of 10 hours a day, with alternate Saturday afternoons off. 94See cases in preceding footnote, and cf. Pacific Powder Company, 84 NLRB 280. as The back-pay period for both employees begins on September 22, 1952, the date of the first discrimination against them, and continues until the date of a proper offer of reinstate- ment. However, as there is testimony herein indicating some decline in Respondent's business late in 1952 and even at the time of the hearing. I shall recommend that, if Respondent can satisfactorily demonstrate in the compliance stage of this case that he would have reduced the workweek below the alternate 55- and 60-hour schedule, and also reduced the pay rates, for nondiscriminatory reasons at some time after his discriminatory reductions thereof, he should not be required thereafter to reinstate the longer workweeks, nor to reimburse his employees after such date for hours not actually worked nor at their former rates of pay. In such event, the back-pay period should continue until that time when Respondent would have reduced either the workweek or the rates of pay, or both, for nondiscriminatory reasons. Westinghouse Pacific Coast Brake Company, 89 NLRB 145, 147. SOUTHEASTERN RUBBER MANUFACTURING CO., INC. 989 Having found that Respondent has refused to bargain collectively with the Union as the statutory representative of his employees in an appropriate unit, I shall recommend that Respondent, upon request, bargain collectively with the Union as such representative, and, in,the event an understanding is reached, embody such understanding in a signed agreement. The scope and`.variety of Respondent's unfair labor practices found above disclose a fixed purpose on his part to defeat self-organization of his employees and to thwart the fundamental objectives of the Act, and justify an inference that the commission of other and related unfair labor practices by Respondent may be anticipated. In these circumstances, the preventive purposes of the Act would be frustrated unless the remedy were coextensive with the threat. I will therefore recommend that Respondent be ordered to cease and desist, not only from continuance of the unfair labor practices specifically found above, but also from in any other manner interfering with, restraining, and coercing his employees in the exercise of rights guaranteed to them by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union, United Automobile Workers of America, AFL, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. All employees of Respondent at West Bend, Wisconsin, excluding executives, salesmen, office clerical employees, and all supervisors as defined in the Act, constitute a unit appro- priate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. The above Union was on September 26, 1952, and has been since that date, the exclusive representative of all employees in the aforesaid unit for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By his refusal to bargain collectively with said Union as such exclusive bargaining representative of his employees in the unit aforesaid, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment and terms and condi- tions of employment of Robert Kiefer and Arthur Kiefer, thereby discouraging membership in a labor organization, Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8 (a) (3) of the Act. 6. By the aforesaid conduct, as well as other conduct set forth above, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices in violation of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication) SOUTHEASTERN RUBBER MANUFACTURING CO., INC. and THE UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, CIO. Case No. 10-CA-1578. August 26, 1953 DECISION AND ORDER On June 15, 1953, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, find- ing 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 copy of the Intermediate Report attached hereto. The Trial Examiner further found that the Respondent had not 106 NLRB No. 157. Copy with citationCopy as parenthetical citation