Neely's Car Clinic

NEELY'S CAR CLINIC 471 Neely's Car Clinic and Keeneth Sidie. Case 20-CA- 14520 May 13, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On January 29, 1980, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed an answering brief' and a brief in support of the Administrative Law Judge's Deci- sion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Neely's Car Clinic, Vallejo, California, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. I The General Counsel's motion to strike various portions of Respond- ent's answering brief is hereby denied. DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was heard by me in Vallejo, California, on August 16, 1979.1 A complaint was issued on May 10 by the Re- gional Director for Region 20 of the National Labor Re- lations Board based on a charge filed by Kenneth Sidie on April 5, charging Neely's Car Clinic (hereinafter Re- spondent) with the unlawful discharge of Kenneth Sidie on February 8 because of his activities on behalf of Ma- chinists and Aerospace Workers, AFL-CIO, District Lodge No. 190, Local Lodge No. 1492, or because he engaged in other protected concerted activities. The complaint tracks the charge alleging the unlawful dis- I Unless otherwise indicated, all dates hereinafter shall refer to the year 1979. General Counsel's brief included a motion to correct the record in three places which appear to be inadvertent transcription errors In the absence of opposition from Respondent, the General Coun- sel's motion is herewith granted 249 NLRB No. 80 charge of Kenneth Sidie and only adds that James Neely, an agent of Respondent, promised employees benefits if they abandoned their support for the Union. It is con- tended in the complaint that the allegations set forth therein violate Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (hereinafter the Act.) Upon the entire record, including my observation of the demeanor of the witnesses and after giving due con- sideration to the briefs filed by the General Counsel and Respondent, I hereby make the following: FINDINGS OF FACT I. JURISDICTION At all times material herein, Respondent, a California corporation with a place of business in Vallejo, Califor- nia, is, and has been, engaged in the retail and nonretail sale of automobile parts and services. During the past calendar year, Respondent, in the course and conduct of its business operations, purchased and received at its facilities located within the State of California, goods, materials, and supplies valued in excess of $5,000 which originated from sources located outside the State of Cali- fornia. During the same period of time Respondent, during the course and conduct of its business operations, received gross revenues in excess of $170,000 from the United States Department of Defense for the repair of military vehicles at the Mare Island Naval Air Station. Respondent admits, and I herewith find, Respondent at all times material herein has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2 II. THE LABOR ORGANIZATION INVOLVED At all times material herein the Union-International Association of Machinists and Aerospace Workers, Dis- trict Lodge 190, Local Lodge 1492-has been a labor or- ganization within the meaning of Section 2(5) of the Act. Ili. THE ALLEGED UNFAIR LABOR PRACTICES A. Background It was stipulated at the hearing that at all times materi- al since 1971 Respondent's employees have been repre- sented for purposes of collective bargaining by the Union. It was further stipulated that the parties were sig- natories to a collective-bargaining agreement effective for the period of June 1, 1975, through May 31, 1978 (see Jt. Exh. I), and Respondent and the Union are cur- rently parties to a collective-bargaining agreement cover- ing the period from March 29, 1979, until May 31, 1981. It was during this hiatus period from May 31, 1978-the expiration date of the prior contract-until March 29, 1979-the effective date of the current contract-that the events with which we are here concerned occurred. In order that one may obtain an accurate picture of the setting or atmosphere in which the events of this 2 Respondent's answer to the complaint filed May 14 denied the Board's jurisdiction, but at the hearing it orally amended its answer to admit jurisdiction. Neely's Car Clinic and Keeneth Sidie. Case 20-CA- NEELYS CAR CLINIC 471 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case transpired, it is necessary to set forth some back- ground data taken from a recent Board decision involv- ing this Respondent.3 In early April 1978, a decertifica- tion petition involving the bargaining unit at Neely's Car Clinic was filed in Case 20-RD-1461. The petition was dismissed by the Regional Office as being untimely filed. (The prior contract expired on May 31, 1978.) On June 1, 1978, a second decertification petition (Case 20-RD- 1478) was filed. This case was withdrawn on July 13, 1978, by the employee who had filed it, and the with- drawal request was approved on July 21. During May and June 1978, the Union and Respond- ent met several times to negotiate a new collective-bar- gaining agreement. On June 29 or 30, Bud Willis, busi- ness representative for the Union, notified Neely that the employees had rejected Respondent's proposal and re- quested further bargaining to resolve the issues. Neely refused saying there was going to be an election. No sub- sequent bargaining sessions were held; the Union did not request further bargaining. On July 13, Respondent filed a representation petition in Case 20-RM-2230. This peti- tion was dismissed on September 8, following the issu- ance of a consolidated complaint in Cases 20-CA-13973 and 20-CA-14026. 4 The consolidated complaint was heard on October 24 and 25 and November 27, 1978. The Administrative Law Judge's Decision issued on Feb- ruary 28, 1979, finding several 8(a)(l) violations, two 8(a)(3) violations, and an 8(a)(5) violation. As indicated earlier herein, the Administrative Law Judge's Decision was approved by the Board on May 17, 1979, without any changes in relevant areas for background purposes herein. B. The Evidence 1. The 8(a)(1) allegation Kenneth Sidie was hired on June 7, 1978, as a journey- man mechanic, laid off on February 7, recalled on March 12, and voluntarily severed on March 19.5 Sidie testified to several pre-10(b) incidents of remarks by Neely that, if true, would have amounted to 8(a)(1) violations.6 The complaint herein charges James Neely with making promises in November 1978 of employee benefits if the employees abandoned their support for the Union. In my opinion the most accurate description of what was said-and Neely does not deny engaging in a general 3 The General Counsel asked and the court consented to take judicial notice of Neely's Car Clinic, 242 NLRB No. 69 (1979) 4 Veely's Car Clinic. .supra The facts in the last paragraph set forth above was taken from the opinion of Administrative Law Judge Robbins' Decision, sec Ill, E, par. I, as approved by the Board in its Decision and Order issued May 17, 1979. s The record is not definitive as to the circumstances of Sidie's depar- ture on March 19 1 can only assume that, because the complaint only alleges the February 7 layoff to be violative of the Act, the March 19 separation was either voluntary or in accordance with the terms of the union contract. T This background evidence when considered ill light of the findings and conclusions reached in the earlier Neely case, supra, leaves no doubl that James Neely preferred to operate nonunion, and frequently ex- pressed his antiunion sentiments to the employees The background inci- dents with Sidie occurred prior to the hearing in the earlier case and should have been presented at that time 'The Board's notice covered the same type of antiunion remarks or conduct conversation regarding the Teamsters pension fund-was expressed by employee Randolph Gelpi in his testimony as follows: There had been a Supreme Court ruling on a Teamster[s] driver who has lost his benefits because of noncontinuous service and we were kind of shooting this back and forth. ["We" refers to sever- al of the employees employed by Respondent.] Mr. Neely entered a point that it was kind of rotten that the gentleman was kind of messed up, or shall we say, "screwed" out of his benefits, because of one word in the contract, the word "continu- ous." We did sort of discuss the subject quite a bit. We all gave our points of views as to how we felt about it. Mr. Neely then, at that time, stated that if we did not belong to the Union at that time and didn't have a retirement program that he would institute one that would consist mainly of us making contribu- tions and Mr. Neely either matching that amount of money or doubling that amount of money and put- ting it in a trust fund and that the employees as such would have access to that trust upon retire- ment or upon our work being terminated. There was also testimony by Sidie that on two occa- sions James Deaver, a vice president and coowner of Re- spondent, expressed his attitude regarding pensions in the following language: Well, what started the conversation is that a Su- preme Court decision came down on a fellow [t]eamster. A [t]eamster had lost all his retirement pay because he had worked 22 years and wasn't able to collect his retirement. So he really lost out on all his retirement. James Deaver at the time said, "Yes, see how the Union is screwing you? All that money that you paid in and we paid in, you're not going to get it out. Now, if you guys went nonunion, this is the way I would set you up: All those union dues you've been paying into the Union and throwing money away, I would either match it or double it, whatever we agreed on, and then we would put it in a trust ac- count and that whenever you quit or got fired, you could go down and draw the money out, so you wouldn't be losing no money at that time." On another occasion in late November, Sidie testified that Deaver again spoke out in connection with the Teamsters decision as follows: Mr. Deaver, we were talking about that same Su- preme Court decision that came down and Mr. Deaver said, "I'm telling you guys that the Union is screwing you and that if you go with my retirement plan to go nonunion, that I can offer you this plan; that you take the union dues and I'll match it or double it, whatever, and we'll put in a trust account and that way"-[Sidie's answer was interrupted by counsel asking another question.] NEELY'S CAR CLINIC 473 Deaver was not called upon to testify. 2. The 8(a)(3) allegation Sidie testified that on December 26, 1978, he asked Mr. Neely for a raise as follows: I said that the union shops outside, that they were due to a wage increase to $10.62 an hour and that I had asked Mr. Neely, was I going to be able to get my raise increase to $10.62 an hour and Neely said that he had talked with his lawyer and his lawyer told him that any wage increase at that time would be a form of bribery; that he could not give us any wage increase and that, I told him that he had al- ready given a wage increase to Randy Gelpi to $10.25 an hour and he denied it at that time and of- fered for me to look at his books but I refused at that time. 7 Sidie testified that 2 days later Neely criticized him for taking too long to repair an engine. According to Sidie, Neely said: "Well, I notice you took a couple of days putting this engine in and together and normally you don't do that," and I told him that I wasn't very happy that week at all and that I was very depressed and also that that engine was apart for about 3 weeks and I had to go around looking for parts and every- thing to where it took a little longer than normal. Neely said, "Well, I can't afford to have you around. I am going to have to lay you off if you keep on doing this." At that time I told him that I would like to have a letter of reference, because I would like to go to work in the union shop and get union benefits. During this conversation Neely said that the Union could have been negotiating a contract with him. Sidie indicated that he would tell Bud Willis, the union repre- sentative. Sidie did advise Willis, and thereafter the par- ties did negotiate and complete a new union contract (see Jt. Exhs. 7 and 2). However, in the interim Neely advised the employees that Respondent might lose its Navy contract. He sug- gested to the employees that in that event no one would be laid off, but instead they would go to a 4-day work- week. A short time later Neely advised that the contract had definitely been lost and presented his 4-day-a-week schedule.8 There was a substantial drop in Respondent's monthly income after January (see Jt. Exh. 4). At a later employee meeting Neely indicated that, if there were to be any layoffs, he would go by seniority and mentioned that Gelpi was the youngest employee. The employees were not happy with the 4-day-a-week schedule, and Sidie expressed his unhappiness to Neely and said he was going to file a grievance with the Union. (There was no effective contract between the parties at 7 This conlversatiion ccurred ait a time hen he Decision in the prior case :as still pending r The contract beieen he Nary ad Respondent herein expired he end of Januar this time, but the Union continued as the employees' bar- gaining representative.) On February 7, Neely advised Sidie that he was being laid off. According to Sidie, when he asked, "[W]hy me?" Neely replied, "You know that I wanted a non- union shop and that I have a lot of money in it and that I can't afford to have you around." Sidie further testified that Neely said Sidie was being laid off so he could draw his unemployment benefits, and that Neely would give him a letter of reference. (See G.C. Exh. 2 for a copy of the reference letter, and Resp. Exh. 1 for a copy of Sidie's application for unemployment compensation bene- fits in which Sidie states: "I was [laid] off due to lack of work.") Analysis and Conclusions The remarks attributed to Deaver by Sidie constitute a promise of benefits if the employees would abandon the Union and clearly violates Section 8(a)(l) of the Act.9 Deaver was not called to testify and the record is lack- ing his description of the discussion with Sidie. Under these circumstances, it is a fair inference that, had he been called by Respondent, his testimony would not have been favorable to its cause.10 I regard the testimo- ny of Ralph Gelpi as being the most accurate version of Neely's remarks to the employees. Apparently this con- versation was a discussion among the employees and an owner regarding a then current Supreme Court decision concerning a subject matter of considerable interest to the participants which each feeling free to express their own view. However, the credited testimony clearly amounts to a promise of a specific benefits by Neely of a different type of retirement program if the employees did not belong to a union. The remarks which I have attrib- uted to Deaver and Neely clearly constitute a promise of benefits and are violative of Section 8(a)(l) of the Act. I shall recommend that corrective action be taken by Re- spondent. The evidence is clear and undisputed that Respondent suffered a substantial loss of business at the end of Janu- ary when the contract with the Navy was lost (Jt. Exhs. 4 and 6). The issue then becomes one of whether or not Respondent was illegally motivated in selecting Kenneth Sidie to be laid off. Sidie was not the youngest employee in terms of se- niority. Both Carl VanValkinburg and Randolph Gelpi were hired after Sidie was hired. (See Jt. Exh. 3 for a seniority list of the unit employees.) Carl VanValkinburg worked exclusively on transmis- sions and was the only qualified transmission rebuilder. He had 23 years of experience and was a specialist that even Sidie felt was highly qualified. The choice Re- spondent was forced to make was between Gelpi and Sidie. Sidie was obviously a good mechanic, and Respondent does not seek to depreciate his abilities, but contends that ' Fre-Flo Packaging Clrpqration .' I..R B B. 5h F 2d 1124 9th ir 1978) 1" (oirflo) Ic(rator Produ(r , Inl . 228 NL.R I 408 1977) Intlrneaiin- a/ I ,ioi, I 'nitd A.urtoiohilh. 4.r.space and 4griculIural Implh mnt IorA- er of .4Arntlro (:'41' W [Grrdlne Co of.4miercal. 459 F 2d 1329, 1135 3X (DC Cir 1I72) NEELY'S CAR CLINIC 473 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sidie had done most of the heavy truck work which was largely work Respondent performed under the Navy contract. Gelpi was a front-end specialist and the only mechanic in the shop that held a California license in lamp and brake repair. Three employees testified as to the superior ability of Gelpi over Sidie. Gelpi testified on rebuttal that he felt Sidie was a better all around me- chanic than he was. Under the current contract as well as the contract that expired in 1978, Respondent had the right to "fairly and realistically determine the qualifications and abilities of employees covered by the agreement" during times of layoff. If qualifications and abilities were equal, then se- niority would apply. The Union was fully aware of Sidie's layoff, and there is no testimony that it became an issue even though Sidie filed a grievance with the Union (see Jt. Exh. 5). I do not credit Sidie's testimony as to the antiunion remark that he attributed to Neely at the time of the layoff. It seems totally unreasonable that Respondent would have made such a remark to a known union sym- pathizer after having just gone through an unfair labor practice hearing. Neely denied having made such a remark to Sidie, and I credit his denial. While an employer's past conduct may be admissible as background evidence of possible union animus, such past conduct is not controlling, and each case must be judge on its own merits; e.g., The Murray Ohio Manufac- turing Company, 207 NLRB 481, 483 (1973), in which the Board held: The Administrative Law Judge's conclusion that the discharges were unlawfully motivated is predi- cated for the most part upon conjecture and suspi- cion based on Respondent's history of opposition to union organization attempts at its plant, and its knowledge that Leighton was one of the leaders in the Union's organizational efforts. These facts, how- ever, do not establish that Respondent discharged Leighton and Skelley because of their activities on behalf of the Union. Nor does the fact that Re- spondent has in the past been found to have com- mitted unfair labor practices establish that it did so here. While these facts may indeed raise suspicions, there simply is no direct evidence in this record linking Leighton's and Skelley's union activities to Respondent's decision to discharge them. I have no doubt that Neely was unsympathetic toward the Union; nevertheless, the evidence presented in this case fails to establish that he was influenced in this regard in selecting Sidie over Gelpi (or VanValkinburg) for the February layoff. In my opinion the layoff was an economic necessity, and the selection was made on the basis of relative abilities between the employees in light of the type of work that continued to be available to Re- spondent. An employer's decision to terminate an em- ployee is only to be questioned if the real nature of the discharge is union activity rather than the stated rea- sons. " N. L.R.B. v. John Brown, et al d/b/a Brown Foods Stores, et al, 380 U.S. 278 287 (1965); Aileen, Inc., 218 NLRB 1419 (1975). THE REMEDY Having found that Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW i. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 2. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. Respondent, by the actions of James Neely and James Deaver did interfere with, restrain, and coerce the employees in the exercise of their Section 7 rights when they promised the employees certain benefit changes if the employees went nonunion. 4. The layoff of Kenneth Sidie on or about February 7, 1979, was not illegally motivated in violation of Sec- tion 8(a)(3) of the Act and the complaint allegation re- garding said layoff is hereby dismissed. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 1 2 The Respondent, Neely's Car Clinic, Vallejo, Califor- nia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promising employees more attractive employee benefits in the event they abandon the Union. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post at its place of business in Vallejo, California, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by its au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec, 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. '3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." NEELY'S CAR CLINIC 475 Appendix NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own chosing To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT do anything that interferes with, restrains, or coerces you with respect to these rights. More specifically, WE WILL NOT seek to encourage our employees to abandon the Union by promising them improved or different pension benefits for going nonunion. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. NEELY'S CAR CLINIC