Tom Wood Pontiac, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1969

179 N.L.R.B. 581 (N.L.R.B. 1969)

TOM WOOD PONTIAC, INC.
Tom Wood Pontiac , Inc. and District 90 of the
International Association of Machinists and
Aerospace Workers , AFL-CIO. Case 25-CA-3318
November 14, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On July 9, 1969, Trial Examiner Henry L. Jalette
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that
these allegations be dismissed. Thereafter, the
General Counsel and the Respondent filed
exceptions to the Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 recommendations of the
Trial Examiner as modified herein.
We find,'contrary to the Trial Examiner, and in
agreement with the General Counsel, that the
conducting of the opinion survey by Respondent's
labor consultant, Robert Laster, was a violation of
Section 8(a)(1). The material facts are as follows.
About a week after the Respondent entered into a
stipulation for certification upon consent election, on
approximately November 21, 1968, the Respondent
summoned' all its bodymen to a meeting. Eight
employees were present and were introduced to
Laster. Laster told them that he wanted to take a
survey among the employees to learn their gripes or
complaints and how Tom Wood could make it a
better place to work. Each employee was given a
questionnaire containing 33 questions and asked to
fill it out, but not to sign it; the employees were also
told that the answers would be tallied secretly and
that no one would know what each employee said.
They were requested to select one of their number to
receive the questionnaires and he was to read the
581
answers to Laster who would prepare a tally. James
Roberts, the Union leader, was selected, and after
the tally, he destroyed the questionnaires. Question
32 asked, "If you were the boss, what would you do
to make this a better place to work'?"
The Trial Examiner stated that he had no doubt
that Respondent's purpose in conducting the opinion
survey was to learn of what complaints its
employees had which might cause them to want a
union. However, he concluded that the mere taking
of the opinion survey was not a violation of Section
8(a)(1), because the survey was not only conducted
so as to preserve secrecy, but also, the questions
were too general in nature to be equated with the
solicitation of grievances. We do not agree.
Granted that the Respondent was not interested in
learning the identity of any employee who might
have grievances and that for that reason it sought to
preserve 'the secrecy of the survey. That fact,
however, is irrelevant. The Respondent's main
purpose, as the Trial Examiner found, was to learn
what complaints the employees had which might
cause them to want a union and that purpose, it
would seem, would not depend on Respondent's
knowing which employee had which grievance. It
was the Respondent's act of questioning that, we
find, would naturally lead the employees to believe
that Respondent was inviting direct dealing and thus
suggesting that union organizing activities were
unnecessary. Conduct of that nature, when engaged
in, as we find it was here, for the purpose of
undermining union organizational efforts, constitutes
an infringement of employee rights under Section 7
of the Act.' Nor can we agree with the Trial
Examiner that all questions asked of the employees
were of such a general nature so as to suggest to
employees that the Respondent was directing his
questions at some objective other than learning their
grievances. The questions concentrated on the
employee and his reactions to his job, and question
32 was a direct, if subtle, invitation to disclose what
the Respondent could do to satisfy employee
grievances. Indeed, Respondent's purpose was made
evident when, as the credited testimony shows, at
the outset of the meeting Laster conceded that the
survey was to learn the employees' gripes or
complaints and how Respondent could make it a
better place to work, and thereafter stated: "There
are some things that we can get corrected now.
Some things that are going to take a while to
correct, and there are some things that may never
be corrected." In these circumstances, there can be
no doubt that the conducting of the opinion survey,
in a preelection context, constituted a solicitation of
grievances and that such solicitation carries with it
an implied promise that the grievances will be
remedied. Such conduct we conclude violates
Section 8(a)(l) of the Act.
'Texaco Inc (Evansville, Indiana Bulk Station) . 178 NLRB No 72
179 NLRB No. 98
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
We have found in agreement with the Trial
Examiner that the Respondent engaged in conduct
violative of Section 8(a)(I) and (3) of the Act and
accordingly, we adopt his remedial
recommendations in that regard. However, we have
found, contrary to the Trial Examiner, that the
Respondent has engaged in an additional unfair
labor practice in violation of Section 8(a)(1) We
therefore order that the Respondent cease and desist
therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact
and upon the record as a whole, we make the
following.
ADDITIONAL CONCLUSION OF LAW
By conducting an opinion survey among the
employees on or about November 21, 1968,
Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that Respondent,
Tom Wood Pontiac, Inc., Indianapolis, Indiana, its
officers, agents, successors, and assigns , shall take
the action set forth in the Trial Examiner's
Recommended Order, as so modified:
1. Add the following paragraph as paragraph 1(e)
of the Recommended Order and reletter present
paragraph I(e) as paragraph 1(f).
"Conducting opinion surveys for the purpose of
soliciting grievances and impliedly promising
benefits."
2. Add the following sentence after the sixth
paragraph in the Appendix attached to the Trial
Examiner's Decision
WE WILL NOT conduct opinion surveys for the
purpose of soliciting grievances and impliedly
promising benefits.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Henry L Jalette, Trial Examiner The charge and
amended charge were filed by the above-captioned Union
on January 22, and February 3, 1969, respectively
Pursuant thereto on February 19, 1969, the Regional
Director issued a complaint alleging that the
above-captioned employer (herein called the Respondent)
had engaged in unfair labor practices in violation of
Section 8(a)(I) and (3) of the Act On March 17, 19, and
24, 1969, a first, second, and third amendment to
complaint were issued The issues presented by the
complaint as amended are whether Respondent discharged
James A Roberts, James K Louden, and Donald W
Caldwell because of their union activities and whether
Respondent engaged in certain independent 8(a)(I)
conduct i A trial of the issues was held on April 2 and 3,
1969
Upon the entire record, including my observation of the
witnesses, and after due consideration of the brief filed by
General Counsel, I make the following 2
Findings of Fact
I THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is an Indiana corporation with its principal
office and place of business at Indianapolis, Indiana where
it is engaged in the sale and service of new and used
automobiles at 3120 and 3215 East Washington Street
Only the 3120 East Washington Street location is involved
herein During the year preceding the issuance of
complaint, in the course and conduct of its business
operations Respondent sold and distributed products
valued in excess of $500,000 and purchased goods and
materials valued in excess of $50,000, which were shipped
to it directly from states other than the State of Indiana
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The Union is a labor organization
within the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1) Conduct
1 Background
Union activity among the Respondent's employees
began on October 8, 1968,' when Union Representative
Charles Deppert met with some 15 of Respondent's
employees at a bar near Respondent's place of business
Union meetings were thereafter held on October 12, 22,
November 6 and 19, and December 4
Sometime prior to October 23, the Union sent a letter
to Respondent demanding recognition as the
representative of its employees On October 23, the Union
filed a petition in Case 25-RC-3919 covering the
employees of Respondent at both the 3120 and 3215 East
Washington Street locations
Another petition was filed on November 14 in Case
25-RC-3934 for the body shop employees at 3120 East
Washington Street, and on the same day, the parties
entered into a stipulation for election upon consent
agreement, pursuant to which an election was held on
December 13. Five votes were cast for the Union, 3
against, and there was 1 challenged ballot On December
20, Respondent filed objections to the election The Board
issued its certification of the Union on February 18, 1969.
At the conclusion of General Counsel's case , I granted a motion to
dismiss the 8(a)(I) allegations contained in par 5 (d) and (g) of the
complaint, as amended
'General Counsel moved to correct the record by substituting "except
to" for "accept" on I 17, p 399 , of the transcript The motion is granted
'Unless otherwise indicated, all dates hereinafter refer to 1968
TOM WOOD PONTIAC, INC. 583
The unit certified in RC-3934 is a unit of all body and
fender shop employees of the employer at its 3120 East
Washington Street, Indianapolis, Indiana, establishment,
including body and fender repairmen, partsmen,
partsdrivers, washers, janitors and service clerks
An election was also held in the unit of employees at
3215 East Washington Street in Case RC-3919 on
December 12 The Union lost that election.
2 The conduct of Robert Laster
General Counsel alleges that on various dates in late
November and early December, Robert Laster, a labor
consultant for Respondent, interrogated employees,
promised them benefits, solicited employee grievances and
promised to adjust them, and warned them they would be
discharged if they became members of or supported the
Union
About a week after the Respondent entered into a
stipulation for an election (about November 21), Body
Shop Manager Schmaltz called a meeting of all the
bodymen in the salesmen's meeting room Eight
employees were in attendance, and they were introduced
to Robert Laster, who identified himself as a labor
relations consultant. Laster told them that he wanted to
take a survey among the employees to learn their gripes
or complaints and how Tom Wood could make it a better
place to work Each employee was given a questionnaire
containing 33 questions Twenty-four questions called for
yes or no answers, for example-
4. When a betterjob becomes vacant, (-) Yes
does the best qualified person get
the promotions?
29. Would you advise your friends to
come here for a job?
(8) No
(2) Yes
(6) No
Seven questions were multiple choice, for example
5. How do your Employee Benetit Plans (-) Better
(insurance , vacations , holidays, etc.) (-) About
compare with those of your friends the same
who work for other companies? (8) Not as good
18. Do you feel that discipline here is (I) Too tough
too tough, too lax, or about right? (5) About right
(2) Too lax
The last two questions were.
32. If you were the boss, what would
you do to make this a better place
to work?
33. What do you like best about your
company?
The employees were asked to fill out the questionnaire,
but not to sign them, they were told that the answers
would be tallied secretly and no one would know what
each employee answered. They were requested to select
one of their number to receive the questionnaires
(employee James Robert was selected) and he was to read
the answers to Laster who would prepare a tally. The
numbers opposite the questions above represent the tally
of the answers received to those questions After the tally,
Roberts destroyed the questionnaires
According to Roberts, during this meeting Laster
stated "There are some things that we can get corrected
now Some things that are going to take a while to
correct, and there are some things that may never be
corrected According to employee Madden, Laster told the
employees he was going to try to do some things, that he
[Tom Wood] had not owned the business very long, he
had not been able to do too much yet, and if the
employees gave him some time he would do some things
Thereafter, until the election on December 13, Laster
was in the shop nearly every day talking to the employees
For example, he would stop where Roberts was working
and make general remarks, and the conversation would
turn to some of the employees' grievances, such as the
shop was dirty and the ventilation poor. On some
occasions, Roberts would initiate the conversation They
discussed such matters as job security, retirement,
insurance, and wages, although none of these matters was
related to a specific grievance of Roberts Laster asked
Roberts what the employees felt they could gain by having
union representation Laster said, "Well now, we can take
care of these things on our own, we don't have to get
involved with the union All you really need to do is give
Tom Wood a chance. Tom Wood knows he's made a
mistake and is going to try and straighten these matters
out But it takes a little time, and you fellas ought to give
Tom Wood a chance "
Employee Louden testified that Laster would come
around to him and say, "How're you doing, Jim? .
You got any problems today9 You got any complaints?"
Louden described this as "just normal conversation" and
if he had anything to say he would and Laster replied,
"Well, those are some of the things we're trying to get
worked out, . " As examples of specific grievances,
Louden mentioned the need for an exhaust fan for
ventilation and Laster said they were going to put one in
Louden also aired complaints about not getting his share
of work and conditions in the shop in general, but he did
not testify to Laster's replies
On a few occasions, Laster came up and said, "I don't
know what you want the union in for After all, the
Union's not doing anything for you It's Tom Wood that's
going to do all this even if you - no matter if you get the
union in, Tom Wood will be doing it all, so why not let
him do it now."
Employee Madden was also approached by Laster and
he described the conversation as starting about the job he
would be working on, then lead around to the Union, with
Laster saying that the Union could not do any more for
the employees than Mr. Wood could
On the day of the election Laster came to Louden while
he was working and said, "Jim, I know how you are going
to vote There's a few others in doubt here, why don't we
just, all of us get together and make it a hundred per cent
for Tom Wood?" Louden replied that he was busy and
had a couple jobs that he had to get out
Laster also approached Roberts and told him, "You're
a bright young man, you know and we know how this
election is going to go, why don't you be the right kind of
guy and make it a hundred per cent." Roberts replied that
Laster was going to have to wait until 3.30 to find out for
sure which way it was going to go
Laster told employee Madden, "We about all know
how this is going and why don't you make it a hundred
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
per cent - in the same words - and vote against the
Union and make it a hundred per cent "
On one occasion, Laster told Madden if the employees
got a union, he was pretty sure they would be out on the
street by the first of January.
The foregoing is based on the undenied and credited
testimony of employees Roberts, Louden, and Madden
Laster was present at the trial, but he did not testify
Several issues are presented by the foregoing, the
principal one being General Counsel's contention that the
opinion survey "openly solicits employee complaints and
the mere taking of the survey could only leave the
employees with the impression that the Company was
going to try to remedy the matters complained of. This
amounts to a clear promise of benefit and where it occurs,
as here, in a pre-election context, it is violative of Section
8(a)(I) of the Act " In support of this contention, General
Counsel cites Fairchild Camera & Instrument
Corporation, 169 NLRB No 11, enforcement denied 404
F.2d 581 (C A 8), and Eagle-Picher Industries, Inc , 171
NLRB No 44
In my opinion, neither of those cases supports such a
broad proposition as General Counsel urges herein While
the Trial Examiner's Decision in Fairchild contains
language appearing to support such a proposition, I am
not persuaded that the Board in adopting the Decision
was thereby adopting such language In the final analysis,
the Trial Examiner predicated her 8(a)(1) finding on a
combination of facts, including the adjustment of one
grievance (posting of a seniority list) and promises of a
paid sick leave plan
In Eagle-Picher, the Board agreed with the Trial
Examiner's findings that the employer had violated
Section 8(a)(1) by initiating a series of "gripe" sessions at
which it solicited employees' complaints and promised
corrective action
In my view, the gravamen of the violation is not the
opinion survey in and of itself, but rather, the use of such
information in the promising or granting of benefits. Cf
Family Bargain Centers, Inc , 160 NLRB 816, 825 I have
no doubt in my mind, and the record fully supports a
finding, that Respondent's purpose in conducting the
opinion survey was to learn of what complaints its
employees had which might cause them to want a union
However, in this case, unlike the cases cited by General
Counsel, the survey was not only conducted so as to
preserve secrecy, but also, the questions were too general
in nature to be equated with the solicitation of grievances
Accordingly, I reject the General Counsel's contention
that the mere taking of the opinion survey was a violation
of Section 8(a)(1) of the Act.
General Counsel contends that even if the survey
standing above were lawful the subsequent acts of Laster
rendered it unlawful. The subsequent acts referred to are
as follows He continually solicited complaints and
"artfully" promised correction, all the while telling the
employees to let Tom Wood take care of them and to
abandon the Union; he threatened employees with
discharge; and by telling employees he knew how they
were going to vote, he unlawfully created the impression
of surveillance
As to the last point, I note that despite the fact that the
complaint was amended three times, and despite the fact
that General Counsel alleged with particularity that on
December 13 Supervisor Joseph Wiethoff imposed new
work rules, he did not allege any violation of the Act by
Laster on December 13 and he did not allege that Laster
created the impression of surveillance. Under these
circumstances, I do not believe Respondent had notice
that General Counsel was contending that Laster violated
Section 8(a)(l) by his statements to Roberts, Louden, and
Madden on the day of the election, and I do not believe
that it can be held that the issue was fully litigated
Accordingly, a finding of 8(a)(1) with respect to such
conduct is not warranted
The alleged threat of discharge consists of the
statement of Laster to Madden that if the employees got a
union, he was pretty sure they would be out on the streets
by the first of January. The statement is ambiguous, and
Madden did not give any details of the conversation into
which Laster injected this remark. Nevertheless, I cannot
conceive of a noncoercive meaning in such a statement,
and absent an explanation by Laster, I find that the
statement constituted a threat of discharge in violation of
Section 8(a)(1) of the Act
The principal conduct of Laster which requires
consideration consists of his daily visits to the shop and
his conversations with employees Roberts, Madden and
Louden. A blanket indictment of Laster's conduct
suggests much more than is warranted by scanning the
testimony of each of the witnesses about what he said
Apart from the remark to Madden discussed above, all
that Laster told Madden was that the Union would not do
anymore for the employees than Mr Wood could. He did
not solicit complaints and made no promises
Laster asked Louden whether he had any complaints
and, upon hearing some, would reply, "Well, those are
some of the things we're trying to get worked out" In
Roberts' case, the statement was "we can take care of
these things on our own, we don't have to get involved
with the union " In my judgment, such "inexact and
indefinite language" does not constitute an "Operative
promise" of benefits Crystal Lake Broom Works, 159
NLRB 423, 437, National Can Corporation, 159 NLRB
647, 659. While there was specific mention of the need for
an exhaust fan by Louden and a statement by Laster that
one would be put in, I consider that single promise, which
was not conditioned on rejection of the Union, insufficient
basis to hold that Laster's conversations with employees
were unlawful
Laster is also alleged to have interrogated employees,
but General Counsel has not specified which of his acts
constituted interrogations. I find no interrogation on the
occasion of the opinion survey, and neither Madden nor
Louden testified to any. Laster's conduct in asking
Roberts what the employees felt they could gain by having
union representation is arguably interrogation under King
Chrysler-Plymouth, Inc , 174 NLRB No 80. However, I
deem this single instance distinguishable. At the time of
Laster's conversations with Roberts, Roberts was a known
union adherent having appeared at the R-case conference
on behalf of the Union on November 14. In this
circumstance, I fail to see how the question could be held
to be for the purpose of ascertaining Roberts' union
sympathies and desires, rather I find the question
rhetorical and designed to initiate a discussion of the pros
and cons of union representation. Moreover, Roberts'
description of his conversations with Laster do not convey
any impression that the conversations were coercive
Roberts appears to have viewed the discussions about
conditions in the shop as part of a "general course of
conversation" Louden, on the other hand, described the
discussions as, "Just normal conversation like that " Such
testimony affords no basis for an 8(a)(1) finding.
In summary, I conclude that with the exception of the
threat to Madden the evidence is insufficient to support a
TOM WOOD PONTIAC, INC. 585
finding that Respondent violated the Act by the conduct
of Laster There is no question that Respondent was
campaigning against the Union and attempting to
persuade the employees to reject it, Respondent had a
right to do this under Section 8(c) of the Act, and I do
not believe that the single threat by Laster, an ambiguous
threat at that, would warrant a holding that Respondent
forfeited that right
3. The conduct of Don Schmaltz
On two occasions , Don Schmaltz asked employee
Roberts if the employees had had a meeting and how
things were going.
One morning after a union meeting, Schmaltz asked
employee Madden how the meeting came out the night
before
At the time of these conversations , Schmaltz was body
shop manager He later became a rank-and - file employee
and Joe Wiethoff became shop manager Schmaltz did not
testify
The foregoing represents the entire testimony adduced
by the General Counsel in support of the complaint
allegation that Respondent , by Don Schmaltz , gave its
employees the impression that it had engaged in prior
surveillance of union meetings The testimony is notably
sketchy and lacks all the details which can ordinarily be
looked to in evaluating the legality of this type of conduct.
Be that as it may , the inquiries are unlawful on their face
and if there was an explanation or justification for them,
it was incumbent on Respondent to provide it The
remarks to Roberts do not convey the impression of
surveillance but are rather impermissible inquiries about
union meetings , the remark to Madden clearly implies
that Respondent had engaged in surveillance . Schmaltz
did not use the word Union, but Roberts and Madden
both understood his questions to relate to Union;
understandably so, since there is no evidence that meetings
on other subjects were taking place, and the inquiries were
made in the course of an organizational campaign which
included union meetings Accordingly , I find that
Respondent by the acts of Don Schmaltz , violated Section
8(a)(1) of the Act
4 The conduct of Tom Wood
Employee John Madden testified that on January 23,
1969, he quit his job and as he was leaving the shop, he
had a conversation with Tom Wood, president of
Respondent, during the course of which Wood expressed
surprise that Madden was for the Union, and in a
discussion that followed, Wood remarked that he would
not operate a shop with a union in it.
On March 3, 1969, Madden returned to work for
Respondent and had another conversation with Wood in
which Wood repeated the statement that he would not
have a shop with a union
Wood did not testify The statements attributed to him
by Madden, which I credit, were tantamount to threats of
plant closure and were clearly coercive. By such
statements, Respondent violated Section 8(a)(1) of the Act
as alleged in paragraph 5(h) and (k) of the complaint, as
amended
5 The imposition of harsh new work rules by Joseph
Wiethoff
General Counsel alleges in paragraph 5(e) of the
amended complaint that on December 13, Joseph
Wiethoff threatened to and did impose harsh new work
rules, because Respondent's employees joined or gave
assistance and support to the Union.
The allegation involving Wiethoff is based on
undisputed testimony that on December 13, after the
election which the Union won, employee Louden, in the
company of employees Caldwell and Madden, asked
Wiethoff it they could go home early because they were
caught up and had nothing to do Wiethoff replied,
"You'll stay here till five o'clock, ring out at five o'clock,
ring in at eight, one hour off for lunch You'll take a half
an hour off for Thursday night supper period " Louden
said, "You're making it pretty rough on us, aren't you,
Joe9" And Wiethoff said, "It's going to get a lot rougher
than this before it's over "
According to Wiethoff, when Louden asked if the
employees could leave early on December 13, it was
between 3 and 3 30 p m and Louden, Madden and
Caldwell all had work in their stalls. Wiethoff viewed the
requests as typical of the problem in the shop before he
became foreman so he told the employees they would
work a full day and as long as there was work in their
stalls they would be there to work on it He denied that
his statement that it was going to be a lot rougher before
it was over was precipitated by the results of the election
I do not credit him
The first circumstance is the timing of Wiethoffs
directive The hours of work he described in his reply to
Louden had always been the regular hours of work
However, there is uncontradicted testimony by employees
that Respondent had always been lax in requiring
employees to conform to these working hours, and Joe
Wiethoff admitted that when he started work with
Respondent as foreman on November I, he found that
about half of the employees were either reporting to work
late or leaving early. Despite this admission, there is no
evidence that he issued any orders or reprimanded anyone
prior to December 13 either for tardiness or leaving early.
True, Wiethoff described how he talked to Louden and
worked him down to reporting for work at 8 15 a m , with
a final directive to be there at 8 a.m., however, there is no
indication that this transpired before December 13 The
situation is similar in the case of Roberts who did not
receive a written reprimand about tardiness until
December 16, the first work day after the election and
after Wiethoff's announcement that the rules would
thenceforth be enforced.
The second circumstance is the evidence concerning
Wiethoff's discussions with Tom Wood and Manager
Schmaltz about the changes to be made in the shop After
evading giving responsive answers to several questions,
Wiethoff admitted that in these discussions the Union had
been referred to and that the existence of certain
conditions was deemed to be the reason the employees had
shown interest in the Union. Accordingly, he had been
instructed to improve those conditions as quickly as
possible. The conditions which Wiethoff admitted were
discussed with reference to the Union were generally the
dirty condition of the shop. Although admitting that he
also discussed a tightening of hours with Wood and
Schmaltz, Wiethoff denied that the Union had any
bearing on these discussions I do not credit him. Given
the admission that the Union was referred to in discussing
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
improvements in working conditions, it strains credulity to
believe that a change in the enforcement of working hours
announced on the heels of the Union's victory was made
without reference to that victory
Finally, there is the matter of Wiethoffs own words on
December 13 Assuming that Louden, Caldwell and
Madden did have work to perform (the matter is not
entirely clear, Madden admits he had work and states
Louden and Caldwell did not, but there is no showing that
he knew this to be a fact, Louden claims he did not have
any work, but I do not consider his testimony on this
point reliable), their request to leave early need not have
evoked the reply which Wiethoff admitted making The
statement, "It's going to be a lot rougher than this before
it's over" had no relevance except as a reflection of
Wiethoff's anger at the employees' for selecting the Union
as bargaining representative The only difference between
his remark and that of the employer in N L R B v
Neuhoff Bros Packers, Inc , 398 F 2d 640 (C A 5), is
that there was an admission by that employer that he was
getting rough because of the Union In this case, the
circumstances compel the conclusion that the change in
the rules was in retaliation for the employees' selection of
the Union in the election and that it was violative of
Section 8(a)(1) of the Act °
6. The institution of new shop rules by Jim Morelock
General Counsel alleges in paragraph 5(f) of the
amended complaint that foreman Jim Morelock
"instituted new shop work rules" in early January 1969,
because Respondent's employees joined or gave assistance
and support to the Union
In support of this allegation, he offered the testimony
of employee Roberts that on January 3, 1969, he reported
to work 9 minutes late and was met by Foreman
Morelock who told him there was no reason for his being
late since he lived across the street and he better not be
late again. He also told Roberts that he was to keep
himself in the front of the shop where his work area was
Roberts argued that he was supposed to be learning metal
work and he could not do so if he was up in the front of
the shop and the metal men were in the back He asked
how Morelock proposed that he learn the metal work
Morelock replied that was Roberts' problem and stated
that he knew that Roberts wanted to run the shop but he
was not going to because Wood owned it and ran it
Morelock admitted getting on Roberts once about
being late, but he was not examined specifically about the
remarks attributed to him by Roberts, and they therefore
stand undenied Moreover, Morelock's conduct was
consistent with his description of the assignment he
received upon being hired, i e , to run the shop, in
particular, to carry out rules on when to come and to
leave Thus, Morelock on this occasion was enforcing a
rule that I have found above was adopted not for reasons
of effiency but in reprisal against employees because they
had voted for the Union
However, General Counsel has not explicitly alleged the
enforcement of an unlawful rule, as noted, he has alleged
that Morelock instituted new shop work rules Nowhere in
his brief does General Counsel clarify the form of his
pleading, he merely contends of Morelock's conduct that
the reprimand was an implementation of an unlawfully
adopted rule and that it was discriminatorily issued to
Roberts (this latter contention is separately alleged in
'United States Radwav Equipment Company, 172 NLRB No 51
paragraph 6(c) of the complaint, as amended)
I have considered the possibility that the allegation of
new shop work rules related to Morelock's admonition to
Roberts to stay in the front of the shop, or that it related
to an incident on January 22, 1969, when Roberts, who
had come to the shop to pick up some personal property,
was told to get out by Morelock Apart from the fact that
General Counsel has not contended these were the new
shop work rules intended by his complaint allegations, I
conclude that the evidence is insufficient to warrant a
finding that either instance described by Roberts
constituted the institution of a new shop work rule
Despite the form of the pleading, and since the matter
of Morelock's conduct vis-a-vis Roberts was fully
litigated, I find on the basis of Roberts' undenied
testimony, which I credit, that the oral reprimand of
January 3 was violative of Section 8(a)(1) because it was
the implementation of an unlawfully adopted rule
However, despite the animus against Roberts and
Morelock's remark that he knew Roberts wanted to run
the shop, I find the evidence insufficient to support a
finding that the oral reprimand was discriminatory
B. The Alleged 8(a)(3) Conduct
1. The discharge of Donald Caldwell
Caldwell did not appear to testify at the trial and the
merits of his case depend on the testimony of employee
John Madden I make no adverse findings because of
Caldwell's failure to appear to testify, but advert to the
circumstance to explain why the facts surrounding his
discharge were not more fully developed
To begin with, all that we can glean from the record
about Caldwell is that he was a body repairman and a
union adherent, and, like all other employees, he was paid
on a 50-50 commission basis on customer paid labor
It is undisputed that on January 23, 1969, Caldwell
refused to do a repair job on a car because, in his opinion,
the amount of the labor charge on the repair order was
too low As a result, Caldwell was terminated
(Respondent contends that by refusing to do the job,
Caldwell quit Whether the separation is called a quit or a
discharge is immaterial )
According to employee Madden, the labor work on the
car in question was worth $250 and Caldwell had told him
that the repair order valued it at $140 Madden had not
seen the repair order, and although it was identified as an
exhibit it was never offered in evidence From the
testimony of Madden and Foreman Morelock, however,
based on their examination of the repair order at the trial,
it is clear that the amount of labor cost on the job in
question had been estimated at $260 80, that is, $10 more
than Madden estimated the job to be worth
General Counsel contends that Caldwell's refusal to do
the job in question was used as a pretext to discharge him
In support of this contention, he adverts to an admission
by Foreman Morelock to a dispute with Caldwell on an
earlier occasion over an estimate on another job,
intimating that the estimate on that occasion was low and
that Caldwell was only saved from discharge then by his
acceptance of the estimate and performance of the job Of
course; there is no evidence that that estimate was too
low, just as there is no evidence that the estimate on the
job Caldwell refused to do on January 23 was too low
Under these circumstances, and the absence of any
probative evidence that employees were free to accept or
reject jobs which they felt had been estimated too low, I
TOM WOOD PONTIAC, INC. 587
conclude that that is insufficient evidence to warrant a
finding that Caldwell was discriminatorily discharged
2 The alleged discrimination against and discharge of
James Louden
James Louden was employed by Respondent in
November 1967, at about the time Respondent took over
the business. Louden was an automobile painter with 19
years' experience He worked alone for 5 or 6 weeks and
then with a man named Sullivan. Both were paid on a
50-50 commission basis and they worked as a team
splitting the commission. Sullivan worked for only about 2
months and was succeeded by another painter who worked
about 6 months and was fired. Thereafter, Louden was
assisted by a helper whose wages came out of the
commissions paid Louden.
When Wiethoff was hired as foreman, Louden was
working alone, and was behind in the paint work When
asked by Wiethoff if he could keep up with the work, he
said no Accordingly, a painter named Charles Boyd was
hired on November 5
Prior to the time of Boyd's hire, for the period from
January to October 30, 1968, Louden had earned $10,290,
or an average weekly wage of $233. Thereafter, his and
Boyd's earnings were as follows
Week_Endin¢ Louden Boyd
November 7 354 35 79 45
November 14 268.00 248.27
November20 196.05 218.65
November 27 183.65 108.005
December 5 42.00 278.10
December 12 206.85 282.35
December 19 189,45 239.70
December 26 173.75 450.456
December 31 137.10 130.50
January? 127.10 370.60
Januaryl4 118 55 288.45
1996.85 2704.52
The complaint alleges that from on or about early
November 1968, until January 15, 1969, Respondent
discriminated against Louden by providing him with less
employment than he normally would have received.
According to the General Counsel, this discrimination was
'For some unexplained reason, Boyd 's earnings were recorded as of the
week ending November 26 instead of 27 as in Louden's case
'For some unexplained reason, Boyd's earnings were recorded as of the
week ending December 24 instead of 26 as in Louden's case
achieved by Respondent by Wiethoff's assignment of more
and more work to Boyd while refusing to assign work to
Louden when he needed it I am not persuaded that the
evidence is sufficient to support such a finding
To begin with, Louden admitted that he was behind in
the paint work when Wiethoff became foreman and that
he told Wiethoff he could not keep up the work alone
Although he testified that it was about the third week
after Boyd was hired that he observed that Boyd was
getting a disproportionate share of the work, their
respective earnings for the month of November do not
establish any discrimination Moreover, while it appears
that Boyd's earnings exceeded Louden's after November,
there are two possible nondiscriminatory reasons for the
disparity
After Wiethoff became foreman, the practice in
obtaining assignments was to ask for one upon completion
of a job Almost from the beginning of his employment,
Boyd worked at night after regular hours and thus
received assignments that Louden might otherwise have
received. Louden appeared to be suggesting that as a
result of this overtime work there was no work for him
when he reported for work in the morning I am not
convinced this was the case, but, in any event the
dispositive consideration on this point is that admittedly
Louden was offered the opportunity to work at night and
he refused
That Louden's drop of earnings was partly, if not
wholly, attributable to Louden's refusal to work at night
also appears from his testimony about a conversation with
owner Tom Wood on December 9 Louden talked to
Wood about his low earnings of the previous week and
Wood told him business was down He also suggested that
perhaps Louden's mental attitude had something to do
with his low earnings Louden replied, in effect, that if his
mental attitude was wrong it was due to the disparity
between his and Boyd's earnings Louden did not tell
Wood that Foreman Wiethoff was discriminating against
him in handing out assignments Moreover, in a
conversation with Service Manager Law earlier that day
Louden had said that the reason he had not received any
more work the previous week was that business was down,
yet Boyd had worked until 8 and 9 o'clock at night.
In the light of this testimony by Louden, it is difficult
to hold that the disparity of earnings was attributable to
discrimination in assignments. Louden was free to refuse
to work at night, just as Boyd was free to work. There is
no showing that Boyd's working at night was part of a
plan conceived to discriminate against Louden. In the
circumstances, Louden cannot complain about a disparity
of earnings
General Counsel contends that proof of discrimination
is to be found in remarks of Wood in his conversation
with Louden that he knew how Louden was going to vote
in the election and that after the election he would get it
all straightened out. He offered to loan money Louden,
which Louden could start repaying in 2 or 3 weeks when
the election was over. Louden had not asked for a loan,
yet when he left Wood he discovered a check for $100 had
been prepared for him. The very next week, Respondent
deducted $25 from his wages to repay the loan. Louden
talked to Wood about it and Wood told him that the
Company would wait 2 or 3 weeks before deducting any
more The next pay day, the first pay day after the
election, Respondent deducted the remaining $75
General Counsel contends that by his remarks that he
knew how Louden was going to vote in the election and
that "the work assignment would all be straightened out"
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the election Wood clearly implied that the reason for
the discriminatory assignment was Louden's union
sympathies General Counsel further contends the loan
was an inducement to vote against the Union, the early
deduction of $25 was a reminder of Respondent's control
over wages, and the $75 deduction after the election was a
reprisal for continuing to support the Union I do not
agree
Wood did not state that the "work assignment would
all be straightened out," he said "it" would all be
straightened out, and I fail to see where "it" could have
referred to discriminatory work assignments, because
nowhere in his conversation with Wood did Louden claim
he was being discriminated against in the distribution of
work Nor can I attach the same significance to the loan
that General Counsel urges is warranted If his
contentions are correct, the loan matter would be a
separate unfair labor practice, not merely evidence of
discrimination The complaint does not so allege While
Respondent may have deducted the loan more quickly
than Wood had promised, I note that on the weeks in
question Louden had substantial earnings
Another point to be considered on this issue is Louden's
testimony that he was passed over by Foreman Wiethoff
in the assignment of work during regular work hours
Louden gave only one instance when he asked for a job
and was refused it and Foreman Wiethoff testified the
reason he had not given it to Louden was that it was not
ready at the time and that when it became ready Louden
was not available for the assignment. I credit Wiethoff in
this matter I do not consider Louden's testimony
sufficiently clear to hold that the job was ready when he
asked for an assignment Moreover, it appears to me that
had Wiethoff been discriminating against Louden in this
matter, Louden would have been able to give other
instances rather than to rely on generalities.
Finally, the disparity of earnings between Louden and
Boyd after December 5 cannot be attributed to
discrimination in assignments, because after December 9,
Louden became a bodyman and spent only about 20
percent of his time on painting. This change in jobs
occurred at Louden's request because he was unhappy
with the situation in the paint shop and his low earnings
According to General Counsel, however, Respondent had
agreed that Louden's assignment as bodyman was
temporary to meet a shortage of bodymen, that as soon as
they hired more bodymen, Louden was to receive more
paint work, and that Respondent hired one bodyman and
returned Manager Schmaltz to body work on January 1
without restoring Louden to paint work In my judgment,
the testimony in this regard is too general and vague to
support a finding of a promise as definite as that
suggested by General Counsel, nor does the record
establish with sufficient clarity either the date on which a
new metal man was employed or the personnel situation
existing in the paint shop at the time One thing is clear,
Boyd was still there and in my opinion he was the reason
Louden left the paint shop, because he received a larger
share of the work by working overtime. It is reasonable to
assume Boyd was still doing so and that Louden still
refused to work at night.
For all the foregoing reasons, I conclude that the
General Counsel has not established by a preponderance
of the evidence that Respondent discriminated against
Louden in the giving of work assignments
On January 15, 1969, Foreman Jim Morelock told
Louden to redo work on the door of a 1967 station wagon
Louden had previously worked on. Louden refused to do
so unless he was given a repair order which would have
entitled him to payment for redoing the work He was
fired for so refusing (As in the case of Caldwell,
Respondent says Louden quit, as in the case of Caldwell,
whether the separation is called a quit or a discharge is
immaterial )
Louden admitted that it is customary for the individual
who worked on a job to redo it without payment if the
customer complains. There is no question the customer in
this instance had complained and the evidence establishes
that after Louden was terminated Respondent had to pay
other employees to redo the work General Counsel's
contention is that Louden had never been paid for his
work on the door in question, that he had been promised
payment by Schmaltz when he was manager and that he
had not received payment It is argued that Louden was
therefore justified in refusing to do the work unless paid I
do not agree
The repair of the station wagon was a major job with
the labor for body work alone amounting to $307 30, half
of which Louden received. There is much testimony about
the work estimate and whether it provided for repair of
the door No useful purpose would be served by reviewing
all the testimony on this point The record is clear,
Louden had accepted the entire body repair job on the
1967 station wagon, and had even reworked the door in
question once without complaint. Under the
circumstances, whether or not the work order specifically
provided payment for the door is wholly immaterial It
seems obvious to me that a bodyman would not have the
option of accepting part of a job and rejecting other parts.
This is essentially Respondent's position. Accordingly,
since Louden admittedly refused to perform work which
employees were customarily required to do, I find the
evidence insufficient to support a finding that his
termination was attributable to his union activities
3 The discharge of James Roberts
In Mead and Mount Construction Co , v N L R B,
411 F 2d 1154, (C.A. 8), the court adverted to the
difficulties in determining whether a discharge is violative
of the Act The court quoted the following language from
N L R B v Bvrds Manufacturing Corporation, 324 F 2d
329. 332-333
These discharge issues are difficult and sensitive
when termination coincides with union activity The
employee and the Board present plausible cause for
continued employment - a good record, superior
comparative production, recent change in assignment,
lack of individual warning, and the like - and would
tie his discharge solely to union sympathy or activity
known to the employer Management in turn presents
equally plausible cause for the discharge -
under-production, production not in line with ability,
troublemaking, attitude, undesirable effect on fellow
employees, similar contemporaneous discharges of
non-union employees, and the like, - and would tie the
discharge to time-honored and accepted
management-prerogatives wholly unrelated to union
activity or sympathy . . The trier of fact must choose
between these two Again its decision, although always
outrageous to the losing party and hard for it to accept,
is, if supported by an adequate evidentiary basis, not to
be retried by this court [Emphasis supplied ]
Roberts' discharge is one of these difficult cases
Roberts was unquestionably the Union leader and he was
the Union observer at the election. (In early January, he
TOM WOOD PONTIAC, INC. 589
had been appointed chairman of a committee to formulate
contract demands, but there is no evidence the
Respondent was apprised of the fact.)' Moreover, as will
appear below, prior to his discharge he had been
reprimanded and warned about the possibility of
termination in reprisal by Respondent against its
employees because they had selected the Union to
represent them, and because of his union activities. I have
also found that the warning given him by Foreman
Morelock on January 3, 1969 was unlawful
In the light of this background treatment of Roberts,
and on the basis of the evidence in the record as a whole,
I am persuaded that Roberts was discharged because of
his union activities and in order to dissipate the Union's
majority and its ability to engage in meaningful
bargaining
James A. Roberts was employed by Respondent in
early June, 1968 by then Body Shop Manager Don
Schmaltz. At the time he was hired he was told that his
primary job would be bumper installation with the
promise that he would be trained to do body and fender
repair work Training was to occur as time allowed As in
the case of the other alleged discriminatees, Roberts was
compensated on a commission basis, 50-50 on a customer
paid labor
On January 15, when Roberts reported to work, his
timecard was not in the timerack. He went to the office
and spoke to Wiethoff, who was now manager of the
shop Wiethoff told Roberts that the type of work Roberts
was doing was not making the Company any money and
Roberts was not making any money and it was not fair to
him Wiethoff told Roberts that he knew Morelock had
been riding him pretty hard, but that he had been doing it
under his instructions Wiethoff said it was not really fair
for Roberts to be working that way since he was not
making any money. Roberts suggested then that he was
being canned and when Wiethoff said he preferred not to
use such a term, Roberts said he would make it easier by
stating the situation to be that Wiethoff was relieving him
of any further responsibility Wiethoff said yes and
Roberts left
Although Wiethoff testified about his reasons for
discharging Roberts, he did not testify about the
termination conversation He stated that bumper repairs
are the last thing done on an automobile and the bumpers
had to be ready when the car was done The problem was
that the Company was getting a backlog of bumpers that
were not ready when cars were ready, and this was due to
the fact that there were times when Roberts could have
been tearing down and building up bumpers and he was
not doing it He claimed that he told Roberts that there
was a backlog of bumpers, that there was plenty of room
for him to work in, and plenty of work and enough time
to do it if he stuck with it
Wiethoff stated he had to discuss punctuality with
Roberts a number of times and that he told him he
expected him to be at work at 8 a m. In addition, a
number of times Wiethoff walked into the shop to find a
number of men gathered together talking with Roberts.
It was allegedly for these reasons that Wiethoff
prepared a written reprimand on a Supervisor's Personnel
Report form and called Roberts into his office on
December 16 He told Roberts "We still got a problem
and we've got to get it straighten out " He gave the form
'Caldwell and Louden were also union adherents , and Louden was on
the committee with Roberts, and although I did not advert to such
activities in analyzing their terminations , I considered them
to Roberts to read , Roberts read it and they discussed it
Wiethoff told him if they couldn't straighten the matter
out within the next 30 days they would have to make
some other arrangements and possibly terminate him
Roberts said he would work at it and try to get the job
done . After this talk Roberts ' work improved and he kept
busy, but slowly started to slack off again About the
middle of January, Wiethoff decided that Roberts was not
going to get the work done and he would not beg him to
get it done I do not credit him
Wiethoff struck me as a very articulate and
knowledgeable individual , yet as I have pointed out earlier
he was evasive in his responses when I inquired about
discussion of the Union in discussions between him and
Tom Wood about conditions in the shop Insofar as his
testimony about Roberts' discharge is concerned, the
singular thing is the total absence of any details of any
significance , plus the total absence of any records to
support his testimonial assertions
The warning and reprimand of December 16
enumerated three grounds - tardiness , productivity , getting
in bull sessions during working hours 8
On the issue of tardiness , Wiethoff failed to specify a
single date on which Roberts was tardy and that he was
warned . Apart from the postelection warning of January
3, Roberts denied being warned except on one occasion as
part of a group . Presumably , Roberts ' timecards would
have shown whether he had been tardy and how
frequently None was produced
The question of Roberts ' productivity does not depend
for an answer on Wiethoffs generalized testimony about
Roberts ' failure to do his work Since Roberts worked on
a commission basis, his earnings reflect his productivity.
From his date of hire through October 30 , Roberts'
average weekly earnings were $110 , and the mean was
$105. There is no evidence that his productivity was
criticized at any time prior to November 1 During the
month of November , the first month during which
Wiethoff was foreman, Roberts ' earnings averaged $122 a
week His average weekly earnings from the time
Wiethoff became foreman through December 12, just
prior to the written warning for lack of productivity was
$123 In light of these figures , the written warning of
December 16 for lack of productivity was clearly
unwarranted
From the foregoing , including the fact that the
reprimand was issued on the first work day after the
election and after Wiethoff had unlawfully adopted more
stringent work rules , it is clear that the written reprimand
of December 16 was unlawfully motivated and that
Roberts was singled out for warning because of his union
activities , including his acting as Union observer at the
election. The General Counsel has not alleged this
reprimand as an unfair labor practice , apparently because
he credited Roberts ' denial that it had ever been shown to
him, a denial which I have not credited . Nevertheless, the
issue was fully litigated and I find that the December 16
reprimand was violative of Section 8(a)(1) and (3) of the
Act
'Roberts was very vague about receiving a reprimand on December 16
and denied that he had ever been shown the supervisor's personnel report
form, or any other written reprimand Wiethoff was corroborated by
clerical employee Joyce Brown, who testified that she saw Wiethoff hand a
paper to Roberts who took it and held it " like he was looking at it'
Brown ' s demeanor impressed me and I credit her and I credit Wiethoff
about the fact of the reprimand This, of course, still leaves for
consideration the justification for the reprimand
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of course, the fact that the December 16 reprimand
was unlawfully motivated does not preclude a finding that
in the period following its issuance, Roberts so conducted
himself that a finding that his discharge was
discriminatorily motivated would not be warranted
Westhoff did not advert to any particular instance
wherein Roberts was derelict after December 16, stating
merely that Roberts started to slack off again, after first
improving Yet, Roberts earned only $34 30 for the week
ending December 19 and nothing was said to him
(Roberts was absent from work at least I day during that
period.) The only time he was spoken to was on January 3
when Morelock warned him for being 9 minutes late
Foreman Morelock, who had only been employed on
January I, testified that during the 2-week period before
his discharge Roberts did not carry out his work properly,
and was frequently engaged in discussion with other
employees instead of working However, he testified that
he talked to Roberts only once and that was about getting
there on time and getting his work done. Although he
thought poorly about Roberts, when Roberts asked him
about doing body work, Morelock did not even bother to
tell him why he would not give him a try I was not
impressed by Morelock's demeanor He appeared to me
to be strongly biased, and I do not credit him Rather
than persuade me that Roberts was discharged for
nondiscriminatory reasons, his testimony, coupled with the
evidence previously discussed, convinces me that in
discharging Roberts the Respondent was motivated in
substantial part by Roberts' union activities and a desire
to dissipate the Union's majority Thus, Morelock's
testimony reveals that prior to his discharge Roberts had
been moved to a smaller work area, although his earnings
for the 2 weeks immediately preceding the hiring of
Morelock had been comparable to his earnings throughout
his employment This move to a smaller work area, on the
heels of an unlawful reprimand, the animosity against
Roberts explicit in Morelock's undenied comments to
Roberts on January 3, and the vagueness of the testimony
about Roberts' derelictions, form a combination of factors
that convince me that beginning with the December 16
reprimand Respondent decided to discharge Roberts and
that, having laid a foundation, it seized on his low
earnings for a 2-week period as a pretext to discharge
him
Roberts was not replaced and, after his discharge,
bumper work was assigned to all the bodymen as part of
their duties, a job which Roberts had been promised and
was never permitted to qualify for The failure to replace
Roberts suggests that Roberts' low earnings in the first 2
weeks of January may have been attributable to a decline
in the volume of work rather than Roberts' failure
to apply himself Noteworthy in this regard is Wiethoff's
failure to tell Roberts on January 15 that he was being
discharged because he was not producing and that his
failure to produce was due to his loafing on the job
Under all the foregoing circumstances, I find that
Roberts' discharge was discriminatorily motivated and
violative of Section 8(a)(1) and (3) of the Act
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with its operations
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
thereof
IV. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act
As I have found that Respondent discriminatorily
discharged James Roberts, I shall recommend that it be
ordered to offer him immediate and full reinstatement to
his former or a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and to make him whole for any loss of earnings he may
have suffered by reason of the discrimination against him
by payment to him of a sum of money equal to that which
he normally would have earned as wages from the date of
his discharge to the date of the offer of reinstatement, less
net earnings, to which shall be added interest at the rate
of 6 percent per annum in accordance with the formula set
forth in F W Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co , 138 NLRB 716
In view of the nature of the unfair labor practices
committed, and the substantial evidence of Respondent's
disregard for the Section 7 rights of its employees, in
order to prevent the commission of other unfair labor
practices, I shall recommend that Respondent be placed
under a broad order to cease and desist from in any
manner infringing upon the rights of employees
guaranteed in Section 7 of the Act
Upon the foregoing findings of fact, and upon the
entire record in this case, I make the following-
CONCLUSIONS OF LAW
1. Tom Wood Pontiac, Inc is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. District 90 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act
3 By interrogating its employees about union meetings
and creating the impression of surveillance of such
meetings, by threats of discharge and plant closure, by
imposing more stringent work rules and reprimanding
employees in reprisal for union activity, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Sections 8(a)(1) and 2(6) and (7) of the
Act.
4. By discharging James Roberts because of his union
activities, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sections
8(a)(1) and (3) and 2(6) and (7) of the Act
5 General Counsel failed to establish by a
preponderance of evidence that Respondent violated
Section 8(a)(1) and (3) of the Act by discharging James
Louden and Donald Caldwell
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this case, I
hereby issue the following.
TOM WOOD PONTIAC, INC. 591
RECOMMENDED ORDER
Respondent, Tom Wood Pontiac, Inc , its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in or activities on behalf
of District 90 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, or in any
other labor organization of its employees, by discharging
or otherwise discriminating in regard to the hire or tenure
of employment or any terms or conditions of employment
of its employees
(b) Interrogating its employees concerning union
meetings or creating the impression of surveillance of
union meetings
(c) Threatening employees with discharge or plant
closure because of their union activities
(d) Imposing more stringent work rules and
reprimanding employees where a purpose thereof is to
retaliate against its employees for supporting a labor
organization or otherwise to restrain or coerce them in the
exercise of rights guaranteed to them by Section 7 of the
Act
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed by Section 7 of the Act, or to refrain from any
or all activities
2 Take the following affirmative action designed to
effectuate the policies of the Act-
(a) Offer James Roberts immediate and full
reinstatement to his former or a substantially equivalent
position without prejudice to his seniority or other rights
or privileges, and make him whole for any loss of pay he
may have suffered by reason of the discrimination against
him by payment to him of a sum of money equal to the
amount he normally would have earned as wages from the
date of his discharge to the date of his reinstatement in
the manner set forth in the section entitled "The
Remedy "
(b) Notify the above-mentioned employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service and Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces
(c) Preserve and, upon request, make available to the
Board and its agents for examination and copying, all
payroll records, social security records, timecards,
personnel records and reports, and all other records
relevant and necessary to a determination of the amounts
of backpay due under the terms of this Recommended
Order
(d) Post at its Indianapolis, Indiana, place of business
copies of the attached notice marked "Appendix."' Copies
of said notice on forms provided by the Regional Director
for Region 3, after being duly signed by Respondent, shall
be posted by it immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.'"
As to the allegations of the complaint found not to
have constituted violations of the Act, it is recommended
that they be dismissed
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice if the Board's
Order is enforced by a decree of a United States Court of Appeals, the
notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals Enforcing an Order" for the words
"a Decision and Order"
'In the event that this Recommended Order is adopted by the Board
this provision shall be modified to read "Notify the Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the law and has ordered
us to post this Notice and to keep our word about what
we say in this Notice
The Act gives all employees these rights
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things
WE WILL NOT do anything that interferes with those
rights More specifically
WE WILL NOT question you about union meetings,
nor make statements to you which create the
impression we have been watching your union meetings.
WE WILL NOT threaten you with discharge, or plant
closure because of your union membership, desires, or
activities
WE WILL NOT impose more stringent work rules or
reprimand you because you support a labor
organization
Since the Board found that we violated the law when
we fired James Roberts WE WILL offer him his job
back and WE WILL pay him for any loss of pay he may
have suffered because we fired him.
You are free to become and remain members of
District 90 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other labor
organization, and we won't punish you in any way if you
do
Dated By
TOM WOOD
PONTIAC, INC
(Employer)
(Representative ) (Title)
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Notify James Roberts if presently serving in the Armed
Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, 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
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana
46204, Telephone 317-633-8921