Bill Loeper Ford

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bill Loeper Ford and International Association of Ma- chinists and Aerospace Workers, AFLCIO. Case 31-CA-6627 January 3, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On August 18, 1977, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings,l and conclusions of the Administrative Law Judge, to modify the remedy so that interest will be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),2 and to adopt his recom- mended Order, 3 as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Bill Loeper Ford, Santa Maria, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: I. Delete the words "In any like or related man- ner" from paragraph 1(b) and insert the words "In any other manner." 2. Substitute the attached notice for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd, 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716(1962). 3 Inasmuch as Respondent has been found to have violated Sec. 8(a)(3) of the Act, a violation which "goes to the heart of the Act," we shall amend the recommended Order, using the broad injunctive "in any other manner" language rather than the language of a narrow order "in any like or related manner." Springfield Dodge, 218 NLRB 1429, fn. 2. 234 NLRB No. 9 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT terminate the employment of Ha- rold Rose, or any other employee, because he en- gages in union or other protected concerted activ- ities. WE WILL NOT discourage membership in Inter- national Association of Machinists and Aero- space Workers, AFL-CIO, or any other labor or- ganization of our employees, by terminating our employees because they engage in union or other protected concerted activities, or in any other manner discriminate against any of our employ- ees in regard to hire or tenure of employment, or any term or condition of employment, except as permitted by the proviso to Section 8(a)(3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer Harold Rose immediate and full reinstatement to his former position of employ- ment or, if that position is no longer available, to a substantially equivalent position of employ- ment, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay, plus interest, which he may have suf- fered by reason of his unlawful termination. BILL LOEPER FORD DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me at Santa Maria, California, on April 13 and 14, 1977, pursuant to a complaint and notice of hearing issued on January 19, 1977, by the Regional Direc- tor of the National Labor Relations Board for Region 31. The complaint is based on a charge filed by International Association of Machinists and Aerospace Workers, AFL- CIO, hereinafter called the Union, and alleges violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, hereinafter called the Act. The parties were accorded full opportunity to examine and cross-ex- amine witnesses, introduce relevant evidence, and present oral argument. The parties waived oral argument and time- ly filed briefs with me. Upon the entire record in this case, the briefs of the parties, and my observation of the witnesses, I make the following: 4 BILL LOEPER FORD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT At all times material herein, Respondent has been a Cali- fornia corporation, with an office and principal place of business located in Santa Maria, California, where it has been, and presently is, engaged in the retail sale and service of motor vehicles. In the course and conduct of its business operations, Respondent annually purchases and receives goods and services valued in excess of $50,000 directly from suppliers located outside the State of California. Moreover, in the course and conduct of its business operations, Respondent annually derives gross revenues in excess of $500,000. Upon these facts, which are not in dispute, I find that at all times material herein Respondent has been an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Respondent concedes, and I find, that International As- sociation of Machinists and Aerospace Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issue in this proceeding is whether Respon- dent terminated the employment of Harold Rose because he had engaged in union or other protected concerted ac- tivities. Respondent contends that Rose was terminated principally because management believed that his work performance was unsatisfactory and not of a caliber suffi- cient to justify his retention. It is also Respondent's conten- tion that Rose's activities on behalf of the Union were minimal and unimportant and formed no basis for his ter- mination. B. Pertinent Facts 1. Background facts a. The personnel involved William Loeper is president and manager of Respondent. Loeper assumed ownership of the Santa Maria dealership on October 20, 1960. Richard Werst is general sales manag- er and has been employed in that capacity since June 1972. Gerald Jeffers is service manager with supervisory authori- ty over the personnel employed in the service department. Additionally, Jeffers deals with service department custom- ers and writes service repair orders. He has 24 years of service in the automobile repair industry. Ted Jones is Jef- fers' assistant and is employed as a service writer. Rose and five other mechanics were employed in the service depart- ment at relevant times. Until his termination on November I Unless otherwise specified, all dates herein refer to the calendar year 1976. 3, 1976,' Rose had worked in Respondent's employ throughout the entire period of the existence of the Loeper dealership and had been initially employed by Respon- dent's predecessor operation for approximately 3 years pri- or to the 1960 change in ownership. At times relevant here- in, Rose served in the capacity of a tuneup mechanic and was the only mechanic who performed tuneup work. The other five mechanics served as line mechanics and per- formed a variety of other work. Rose considered his 1970 designation as the tuneup mechanic to have been a promo- tion because it accorded him more predictable income and less downtime than is occasioned by line mechanics. The specified hours of work at Respondent's shop are 7:30 a.m. to 5:30 p.m., Monday through Thursday, and from 7:30 a.m. to 5 p.m. on Friday. A I-hour lunch period is observed. b. Rose's job duties defined In his capacity as a tuneup mechanic, Rose tuned auto- mobile engines; overhauled carburetors; changed plugs, points, and condensers; tested and repaired electrical wir- ing and turn-signal switches; and checked smog systems for compliance with standards requisite to the issue of smog certificates. In addition to the above-described duties, Rose also was the mechanic responsible for doing all "comeback" work. In essence, a comeback results when a vehicle previously repaired in the shop is returned within a reasonable time to the shop by the customer, and it is determined that the earlier repair or adjustment to the vehicle was not properly accomplished. One to two comebacks a month would be "normal" for a mechanic. During his tenure, Rose was compensated for comeback work performed on vehicles initially repaired or adjusted by other mechanics but he received no compensation for his own comebacks. In September, Rose received pay for performing 209 sep- arate repair jobs and in October he received compensation for 194. In each of these months there were 22 working days. c. The union activities On June 3, a Board election was conducted in Case 31- RC-3461 and a joint certification of the Teamsters and the Machinists resulted. Prior to the election, Rose had signed a union authorization card. Subsequent to the certification, six meetings were held which were attended by employees of Respondent and other automobile dealers. Rose attend- ed five such meetings. One meeting which Rose attended was held on August 19 and, like the other meetings, em- ployees of five dealerships in the area were present. During the course of the meeting, a representative of the Machin- ists presented a contract proposal which had been submit- ted by the employers. A discussion ensued and Rose partic- ipated actively in the discussions. He stated his dissatisfac- tion with the general progress of events. During the course of the discussion relating to the contract proposals submit- ted by the employers, the Machinists representative spoke in negative fashion concerning the proposals and Rose sug- 5 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gested a strike vote be taken. A strike vote was taken and carried. Rose suggested that the strike commence the fol- lowing morning but the representative of the Teamsters advised the assemblage that the Teamsters did not have strike sanction. Rose responded that the Machinists had authority to proceed to a strike and should do so. The decision reached at the meeting was that no strike would be called without the Teamsters participation. 2 d. Loeper speaks with Rose The following morning, Loeper heard reports at the deal- ership to the effect that Rose had attended the meeting the previous evening and was intoxicated and vocal. No super- visor or agent of Respondent was present at the meeting and Loeper heard only unsubstantiated rumor as to the nature and extent of Rose's participation in the meeting, including the fact that Rose had advocated a strike against the Company. In midmorning, Loeper approached Rose in the shop and remarked about his proficiency as a "speak- er." Rose responded that he had done what he thought was right, but Loeper walked immediately away and did not hear his response.3 In late October, Loeper approached Rose in the shop and made the observation that there was going to be a negotiations meeting in early November. He inquired if Rose was going to attend the meeting. Rose asked the reason for the inquiry and Loeper responded to the effect that he surmised that Rose was now the "kingpin" since the former employee representative of shop employees, Bobby Burns, had left Respondent's employ. Rose answered, in substance, that the Union had been designated to handle the negotiations on behalf of the employees and that he, Rose, would not be attending. Loeper responded, "I don't know why they don't give up. They're not going to get a damned bit more than they've got right now." 4 e. The extent of Rose's union activities Rose did not act as an observer at the June 3 election and played no special preelection or postelection role in the efforts of the Union. In point of fact, Bobby Burns, who left Respondent's employ voluntarily prior to mid-October, served as the union observer, and as representative of the shop employees in the subsequent negotiations. Further, Jack Davidson, a parts department employee of Respon- dent, served as the other employee representative in the 2 The foregoing is based on the credited testimony of Harold Rose. Rose's testimony stands unrefuted and I discern no basis for rejecting his testimony in this regard. 3 A composite of the testimony of William Loeper and Harold Rose establishes the occurrence of a conversation. Loeper's testimony with re. spect to this conversation was evasive, generalized, and marked by an ab- sence of certitude with respect to the substantive elements of the exchange. Loeper concedes having heard reports of the nature and extent of Rose's participation in the meeting and I find that these reports encompassed the fact that Rose had advocated strike action. Loeper did not deny this. 4 I base the foregoing finding upon the credited testimony of Harold Rose. William Loeper concedes discussing the upcoming negotiations meet- ing with Rose and he speculated that he may have discussed the same topic with two or three other employees. Loeper also conceded harboring an iiterest in knowing who would assume Burns' role as employee representa- tive in the negotiations. Although his testimony constitutes a denial of Rose's version of the conversation, I found Loeper's testimony less than convincing. I conclude that Rose more accurately recounted the conversa- negotiations. The record establishes that Davidson was granted a $100-per-month wage increase subsequent to the commencement of the union activities and was still in the employ of Respondent at the time of the hearing herein. f. Rose's insubordination In the meantime, on Monday, March 8, Loeper brought a low-mileage Mark IV to the dealership and later, at ap- proximately 3:30 in the afternoon, Loeper spoke with Jef- fers and asked Jeffers to have the engine tuned. Jeffers called Rose into his office and assigned the tuneup work to him. Rose became irritated and stated that he had been in the shop since 7:30 a.m. and had had no work all day long. He stated that he did not feel that he should be required to tune the car this late in the afternoon. A discussion fol- lowed wherein Jeffers told Rose that the normal working hours were from 7:30 to 5:30 p.m., and that Rose had ample time to accomplish the tuneup work during normal shift hours. Rose performed the tuneup. Thereafter, Jeffers reported the incident to Loeper, and on Friday, March 12, Rose was called into the office and spoke with Loeper and Jeffers. Loeper reiterated Jeffers' earlier statement concerning the working hours which he expected Rose to observe. He asserted that Rose was no different from any other employee and was required to be in the shop during normal working hours. He noted that Rose had left early the previous three afternoons and had given Jeffers the excuse that he had to see his doctor. Loe- per asserted that this was a satisfactory explanation if, in fact, Rose was consulting with his doctor, but Loeper add- ed, in substance, that if Rose were using the time off for other purposes, it would be grounds for immediate dismis- sal. Loeper further stated that he would not tolerate any insubordination on Rose's part. Rose became angry and raised his voice in response. He walked toward Loeper and approached in a manner which caused Jeffers to believe that Rose was prepared to strike Loeper. Loeper was of a similar opinion. Jeffers intervened and instructed Rose to "back off." Rose did so, and a few more words were ex- changed between Rose and Loeper. Loeper was visibly upset and left the office. A few days later, Rose apologized to Loeper. 5 Later, in early May, Richard Werst, Respondent's gener- al sales manager, returned to the shop from lunch and observed Rose in conversation with Ted Jones regarding work to be performed on a pickup trailer which was parked tion and I credit him. In doing so, I have carefully considered the content of the questionnaire and accompanying statement which Rose filed with the Union on November 22, which contains no references to the conversation, and which, inferentially, at least, would negative the occurrence of the con- versation. However, in light of Loeper's concession that he broached the topic of the upcoming negotiating meeting with Rose, it is reasonable to assume, as I do, that Rose gave a negative answer to the inquiry posed in the questionnaire as to whether or not he had any conversation with any of his superiors about the Union because, as he explained on cross-examination, he gave a literal interpretation to the questionnaire inquiry and did not consider Loeper's observation about the negotiations meeting to pertain to union activities per se. I The foregoing is based upon a composite of the testimony of Gerald Jeffers, William Loeper, and Harold Rose. The testimony of Jeffers and Loeper more accurately describes the series of events than does the testimo- ny of Rose. I credit Rose only to the extent that his testimony is consistent with the foregoing findings. 6 BILL LOEPER FORD in the service driveway. As Werst interpreted Rose's com- ments, he concluded that Rose was lodging a complaint with respect to having to perform the work in the service driveway rather than in a more advantageous work loca- tion. Werst intervened and informed Rose that the work had to be accomplished and that Rose had to take the good jobs with the bad. He could not expect to take "all the gravy." Rose endeavored to explain that he and Jones were consulting together in order to determine a manner for moving the trailer from its present location to a location within the garage. Rose became visibly irritated and told Werst that he did not work for Werst and that he should not come out and tell him what to do. Werst left rather than continue the dialogue with Rose and reported the incident to Loeper, who, a few days later, called Rose into his office and informed Rose that Werst had reported his version of the incident. Rose attempted to explain but Loe- per referred to the earlier incident involving the Mark IV and told Rose that he would not tolerate disrespect toward his department heads.6 g. Rose's failure to comply with scheduled work hours For a period of several months prior to November 3, Jeffers and Loeper had been aware of Rose's failure to comply with scheduled work hours and to reasonably limit the duration of his coffeebreaks. Rose had been admon- ished by Jeffers and Loeper over a period of several months prior to November not to leave the shop early without specific permission from his superiors. Jeffers had spoken to Rose concerning this matter and in early October Loe- per and Jeffers met with Rose and instructed him to com- ply with attendance and work hours applicable to all shop employees. Thereafter, Rose's conduct was such as to indi- cate to Jeffers that he was complying with these instruc- tions. Compliance with reasonable time limitations on coffee- breaks became a topic of corrective comment on Loeper's part in late September or early October. This transpired when Rose and Pete Castleberry, a line mechanic, had road-tested a car to get coffee, a common practice in the shop. On this occasion, Loeper had looked for Rose in the shop and had been unable to find him. Loeper renewed his search for Rose approximately 20 minutes later and Rose had not returned, although he did so very soon thereafter.7 2. The alleged unlawful conduct a. The termination of Rose Rose was terminated during the course of a meeting con- ducted in the late afternoon on November 3 in Loeper's office. In attendance, in addition to Rose and Loeper, was Jeffers. The meeting lasted approximately 30 minutes. Loeper commenced the meeting by discussing work pur- portedly performed by Rose pursuant to some repair or- ders which Loeper had in front of him on his desk. Loeper 6 The foregoing is based upon a composite of the credited testimony of Richard Werst, Harold Rose, and William Loeper. 7 A composite of the testimony of Harold Rose. Gerald Jeffers, and William Loeper establishes the foregoing. I credit the testimony of Rose and Jeffers in finding that cars are road tested to get coffee. began this discussion by referring to a repair order which bore a date indicating the work had been performed during Rose's vacation. Rose called this to Loeper's attention, and Loeper terminated discussion of that repair order and turned his attention to another order. From that point in the meeting, the discussion related to repairs apparently performed by Rose on automobiles owned by Alice Carl- son, T. Cannon, Gilliland Land & Oil Company, Frank Gomes, and Mrs. William Loeper. Each of these repairs was discussed in some detail. In connection with this dis- cussion Ed Jones, a service writer, was called into the of- fice, and Loeper inquired if Rose was having comebacks. Jones replied, "a few." Jones made specific reference to a truck that had been in the shop that morning with an elec- trical problem which Rose repaired. Loeper asked Jones if he recalled any other problems and Jones was not respon- sive. He left the meeting and the discussion continued. Loeper asked Rose whether, in view of the number of comebacks which he was experiencing and the state of Rose's health, Rose thought he was capable of continuing to work. Rose responded that he wished to continue to work and was happy in his employment and was doing good work. Loeper pressed the matter and asked Rose why he could not do his work correctly. In this regard Loeper asked Rose if the state of his health was the reason that Rose was continuing his desire to go home from work ear- ly. Loeper made reference to Rose's asserted insubordina- tion and failure to conform to scheduled work hours.s Al- though asked several times whether he desired to quit his employment, Rose communicated to Loeper that he de- sired to stay on. Loeper closed the meeting by stating it was necessary for him to satisfy his customers and retain his customer following and for this reason he was terminating Rose. Rose did not respond and the meeting ended. Rose left the dealership. The following day, Rose returned to the dealership to pick up his tools and final check. He spoke with Jeffers and requested he be given a written explanation for his termina- tion. Jeffers responded that he could see nothing wrong with that request and would endeavor to obtain this for him. Jeffers left and went to Loeper's office. When he re- turned, he informed Rose that Loeper would not supply a written explanation. Thereupon, Rose asked Jeffers if he would provide a written explanation for his termination. Jeffers declined, saying that he was complying with Loe- per's instructions. During his discussion with Jeffers on that occasion, Rose asked Jeffers why, if there had been so many comebacks attributable to him, Jeffers had not men- tioned it before. Jeffers did not respond. Loeper denied having convened the November 3 meeting with predetermination to terminate Rose. He testified, in substance, that he entered the meeting with the predisposi- tion to effectuate Rose's termination but desired, in speak- ing with him, to elicit from Rose some explanation con- cerning the nature of his attitude, work performance, and conformance to scheduled work hours. Loeper testified that had Rose come forward with satisfactory explanations, s William Loeper testified that he touched on the subject of Rose's "in- subordination and hours" only "very lightly." 7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he would have considered retaining Rose in his employ. Loeper testified that during the course of the November 3 meeting he spoke with Rose concerning the quantity of comebacks; complaints from various customers concerning work performed by Rose; Rose's insubordination; and his absence during working hours. Loeper denied that Rose's involvement in any activity pertaining to the Union played any part in his decision to terminate Rose. b. The alleged faulty work The Alice Carlson automobile was repaired by Rose on October 20, pursuant to a repair order written by Jeffers specifying a customer complaint regarding a noisy smog system. Rose diagnosed the problem and replaced a valve. He reported to Jeffers that he had done all he could do to remedy the problem. The automobile was parked on the customer-ready lot, and Loeper brought the car back to the shop, instructing Jeffers to do further work on the automo- bile because the noise problem had not been alleviated. Rose spoke with Jeffers concerning the matter and in- formed Jeffers he had been told by Dick Phillips, a factory representative who heard the engine after the initial repair had been accomplished by Rose, that the noise was abso- lutely normal. Nevertheless, another valve was ordered and approximately 2 weeks later the valve was installed. Rose was of the opinion the noise level had not been reduced but Jeffers was of a contrary opinion. The customer was satis- fied with the work accomplished. The repair to the 1971 Buick automobile belonging to Frank Gomes was undertaken by Rose on August 23. Gomes was a personal friend of Jeffers, and Jeffers brought the automobile into the shop for a tuneup. Upon undertak- ing the repair, Rose observed that the carburetor was in very bad condition and was leaking gas. Rose informed Jeffers of this and pointed out that he could not make the automobile run well enough to test it. Rose also stated that he did not feel capable of performing the overhaul work on the carburetor and that the carburetor should be sent out to a General Motors dealer. Jeffers left the Gomes automo- bile in the stall for a few minutes and then returned and instructed Rose to pull the carburetor and send it to a General Motors dealer whom Jeffers named. When the carburetor was returned to the shop, Rose installed it and put in plugs, points, and a condenser. Thereafter, the auto- mobile ran better. However, it still would not idle properly and after consulting with Jeffers it was decided that an intake gasket should be installed. This was done by a line mechanic. After the automobile was returned to Rose, the problem remained, and the car was thereafter scoped and the dynamic compression test revealed a burnt valve in a cylinder. Throughout this procedure, Gomes, the customer, had been kept informed of the process and when he was told about the need to replace a valve, he became angry and withdrew the automobile from the shop. An allowance toward repair cost was made in favor of the customer, and Jeffers consulted with Rose concerning the matter. Jeffers told Rose that, in his opinion, Rose should have discovered the deficient valve earlier. Rose stated that he was not able to scope the automobile at an earlier stage because of the rough condition of the engine. Rose conceded, however, that he had "goofed." The adjustment performed on the new 1977 LTD, be- longing to Mrs. William Loeper, was performed in mid- October. Mr. Loeper brought the car into the shop after it had been driven approximately 400 miles. The engine was missing at steady speeds because the cylinder was not firing properly. Rose scoped the automobile and performed a minor tuneup. Jeffers tested the LTD after Rose had tuned the engine and when he tapped the accelerator it did not come off a fast idle. Two days later Loeper discovered that on initial startup the motor would race at excessive speed and would not come off a fast idle until driven 4 or 5 miles. Loeper reported this to Rose and asked Rose if it was not possible for Rose to do his work properly. Rose answered that he could and would correct the matter if Loeper would show him what was wrong. Loeper became irritated and demonstrated to Rose the difference between the idle on initial startup in his Thunderbird and the idle under identi- cal conditions in the case of the LTD. Loeper instructed Rose to achieve the same result with the LTD. Rose ob- tained the service manual and circled certain material and took it to Jeffers. Rose told Jeffers that the carburetor on Mrs. Loeper's car was not the same as that on the Thunder- bird and that it was mechanically impossible for the carbu- retor on the LTD to be brought off a fast idle without the driver touching the throttle. Jeffers told Rose that he would show Loeper the service manual entry which Rose had circled. The manual instruction was to the effect that a tap of the driver's foot upon the accelerator would bring the automobile off a fast idle. However, as instructed, Rose worked on the car and fixed it to the satisfaction of Loeper. A Pinto automobile belonging to T. Cannon was brought into the shop on October 22 for an engine tuneup and other repairs. Rose tuned the engine and replaced the fuel filter and then road-tested the car. After doing so, he returned the car to the agency and parked it on the lot. It was running satisfactorily when he parked it. Thereafter, the automobile was taken to the lube rack by an employee other than Rose and the lube man performed a lubrication and oil change on the car and changed the air cleaner. Later in the day, the customer came for the automobile and it was parked near the office on a lube rack. The car would not start when an effort was made to back it from the lube rack stall. Jeffers checked the automobile and found that the vacuum line was detached and the air cleaner was loose. He quickly remedied the matter. In normal course of events the lube man would have changed the air filter and would have had occasion to remove the vacuum hoses. There is no established sequence with respect to whether an engine tuneup is performed prior to a lubrication and oil change or whether the reverse order is followed. When confronted with this incident by Jeffers and Loeper, Rose informed them that the lube man had left the vacuum hoses and air filter loose because he had performed the engine tuneup prior to the lubrication. Jeffers did not know which sequence was followed. He had spoken to the lube man prior to speaking with Rose, and the lube man had denied responsibility. Jeffers testified that the automobile 8 BILL LOEPER FORD had been driven to the location at which it was situated when the customer came to obtain the automobile. 9 The Gilliland Land & Oil Co. repair involved a 1971 Ford which was brought into the shop for an engine over- haul. The work was performed by a general line mechanic. Rose was not designated to check the performance of the engine after the overhaul for which the customer was billed $1,392.23. The automobile was returned on October 22 with a customer complaint that it was not running right. The entry made by the service writer on the service repair order was to the effect that the engine had no power and fluttered when warm and would almost quit running. The work was assigned to Rose to complete. Rose performed the repairs and he and Jeffers road-tested the car. Rose was of the opinion that the engine was running correctly, but Jeffers instructed Rose to check the car further. He did so and found that the smog hoses had not been replaced cor- rectly, and Rose and Jeffers again tested the car. In their opinion the engine ran well, and the automobile was re- turned to the customer. The expense of the repair was charged to "shop policy" with the notation that there had been a recent engine installation. The automobile was returned to the shop 2 days later with a complaint that the automobile was still not perform- ing properly. The engine would hesitate and acceleration was not adequate. Rose checked the car and found a kinked fuel line at the gas tank. The automobile appears to have been towed into the garage. Rose performed the re- pairs, and a charge was made to the customer for $7 in labor and $28 for the towing service. Jeffers was of the opinion that the automobile was running properly after Rose completed his repairs. Nearly 5 weeks later, on October 29, the automobile was again returned to the shop. The automobile had been driv- en over 1,000 miles but in the interim the customer had lodged a complaint to the effect that the automobile still performed as unsatisfactorily as before the earlier repairs. When business use permitted the customer to return the automobile to the shop, Rose and Jeffers road-tested the car and, in Rose's opinion, the automobile ran properly. However, Jeffers instructed Rose to repair the automobile to the customer's satisfaction, and Rose suggested that the carburetor be overhauled. Jeffers instructed Rose to do so if that was necessary in order to satisfy the customer. Rose performed the overhaul work. Jeffers testified that Rose 9 I credit the testimony of Harold Rose to the effect that he tuned the engine and replaced the fuel filter prior to the time the lube man gained possession of the automobile. I also credit Rose to the effect he road-tested the car and placed the automobile in the parking lot at the facility, thereby completing his duties with respect to the scheduled repairs. 'O The findings with respect to the nature and extent of repairs per- formed by Harold Rose on the automobiles is based upon a careful consid- eration of the testimony of Harold Rose, Gerald Jeffers, William Loeper, and documentary evidence of record. As I observed him testify at the hear- ing, I am convinced that William Loeper had no clear recollection of the myriad details pertaining to the repairs performed on the various automo- biles, save that belonging to his wife, Mrs. William Loeper. Accordingly. I place primary reliance upon the testimony of Harold Rose and Gerald Jeffers. To the extent that the testimony of Rose. Jeffers, and/or Loeper is at variance with the findings of fact made with respect to the repairs, their testimony is rejected. The above-described instances of assertedly poor work by Rose were augmented, contends Respondent. by faulty performance on the part of Rose in making repairs to the automobiles of customers Calizari, Bernard, should have discovered the carburetor difficulty during the course of the earlier repairs. However, Rose credibly testi- fied that in performing the carburetor overhaul he discov- ered that the power valve in the bottom of the carburetor was leaking. Rose credibly testified without contradiction that the nature of a power valve is such as to have rendered earlier detection impossible. In the meantime, on October 11, Gilliland Land & Oil Co. dispatched a check in the amount of $1,000 as partial payment against a billing of $1,427.23. On the check stub the notation was entered by the customer: "Balance will be paid when car is conditioned [so] that it runs satisfactorily and proper credits made." Respondent's interoffice nota- tion made on the face of the check stub indicates that the repair orders involved were the September 24 repair order wherein Rose repaired a kinked fuel line at the gas tank for which a charge of $7 was levied; an August 30 repair order in the amount of $1,427.23 involving work performed by a line mechanic; and the work order in close time proximity to the August 30 order involving work performed by shop employees other than Rose totaling $121.75. In substance, Loeper testified that it was not the dollar amount of the repair work performed by Rose on the Gilliland Land & Oil Co. car which caused him to assess blame against Rose. Rather, it was Rose's failure to properly perform this as- signed task of determining the cause of the engine and carburetor malfunction, and its resultant negative impact upon customer satisfaction and relationships which ren- dered this matter significant. On the other hand, Jeffers conceded that Pete Castleberry, a line mechanic, per- formed transmission work on the automobile on two or three occasions and that the transmission difficulty was part of the overall problem encountered with the particular car. Jeffers spoke to Castleberry in a critical manner about Castleberry's work on the automobile. l° Conclusions I find that the evidence preponderates in favor of a find- ing that Respondent violated Section 8(aXl) and (3) of the Act by terminating the employment of Harold Rose. I fur- ther find that the reasons advanced by Respondent in ex- planation of Rose's termination are pretextual in nature and marshaled for the purpose of cloaking his discrimina- tory termination. and Stanley Brown Company, all of which transpired during the last 10 weeks of Rose's employment. In contrast, contends Respondent, during the first 7-1/2 months of the year, Rose did faulty work on automobiles belong- ing to only two customers, Ethyl Lee and Paul Brown. I place no reliance upon the information coming into Respondent's possssion with respect to the Calizari LTD and the Stanley Brown Company Elite, for it is clear that the information pertaining to the alleged deficient work on the part of Rose on these two automobiles did not come to the attention of Respondent in a manner causing either Loeper or Jeffers to ascribe to these repairs a negative connotation serving as a factor warranting Rose's termination. The work of Rose on the Bernard automobile was, I find, reasonably within the defini- tion of a comeback, albeit minor in nature. Moreover, it is clear that this particular comeback was not a matter of discussion during the course of the November 3 meeting between Loeper and Rose and was not a material consideration in Loeper's evaluation of Rose's work. Into this category falls also the alleged faulty workmanship on the part of Rose with respect to a Falcon automobile belonging to Jack Lyons, who at some point in midyear voiced a complaint to Loeper about the idle level set on his car by Rose who performed tuneup work on it. 9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Initially, the General Counsel established that at the time of his discharge on November 3, Rose was a long term employee whose work skills had been acceptable to Re- spondent. His eccentric work schedule and attitudes had been tolerated by Respondent through the years of his generally competent service as a mechanic, but largely suc- cessful efforts had been undertaken to bring him into com- pliance in these latter respects. In this connection, the evi- dence supports the finding, which I make, that as early as March, Loeper had become annoyed by Rose's apparent indifference to established standards of shop discipline and respect for supervision and management. Nevertheless, throughout the spring and into the summer, Loeper counte- nanced Rose's continued circumvention of established work schedules and found insufficient basis for disciplining Rose or effectuating his termination in the face of a further incident in May of manifest insubordination to a manager of the operation. The conclusion seems warranted that Loeper did this out of a sense of forbearance to a long term and skilled employee and not out of reluctance to termi- nate Rose during a period when the organizing campaign and the postelection ambiance still prevailed. It is to be remembered in this connection that there was nothing in Rose's support of the Union prior to mid-August that dif- ferentiated him from other employees. Be that as it may, Loeper did nothing of an overt nature pertaining to Rose's continued job tenure and, as matters progressed, the Au- gust 19 union meeting was held at which Rose vocally supported the notion of a strike against the Company as a tactical weapon to enforce the Union's bargaining de- mands. That Rose's participation in the August 19 meeting came to the attention of Loeper is conclusively demon- strated by the record evidence, for Loeper made a point of speaking to Rose concerning the matter the fobllowing day. It may well be, as Loeper, in effect, testified, that he spoke to Rose in a jocular vein, for the rumors to which he had been privy concerning Rose's participation in the August 19 meeting were laced with humor of a sort which would tend to deprive Rose's participation in the meeting of any portentous quality. However, in point of fact, the evidence, carefully analyzed, suggests that the nature and the extent of Rose's participation in the meeting indelibly and ad- versely influenced Loeper's subsequent attitude toward Rose. To be certain, following the August 19 meeting, Loe- per did not act immediately or with vehemence, but by mid-September he disclosed a willingness to discipl;ne Rose in a disparate manner, when he admonished Rose for road testing a car to get coffee, while exempting Rose's companion, Fete Castleberry, and while closing his eyes to the fact that the practice was not an uncommon one. More- over, this admonition came at a time when Rose had dem- onstrated a willingness to comply with instructions to ob- serve established shop hours and he had not repeated his earlier acts of disrespect towards supervision. Thereafter, in mid-October, coincidental to the pendency of a further negotiating session between Loeper and the Union, Loeper made a point of speaking again to Rose and applying the "kingpin" appellation with its self-evident relation back to the August 19 meeting and Rose's role therein. Thus, there is basis in the record for concluding, as I do, that, unlike other employees of Respondent who supported the Union and desired to achieve a collective-bargaining agreement with Respondent on terms advanced by the Union, Rose, alone among the employees, had, to Loeper's knowledge, openly advocated resort to strike tactics to enforce his ob- jective. The record evidence demonstrates that at the time of Rose's termination, Loeper was adamantly espousing the futility of the bargaining process and, in fact, boasted that he had never had a contract with the Union. In this context, the sum of the evidence with respect to Loeper's personal reactions to the reports of Rose's participation in the August 19 meeting compels the inference and resultant finding that, although he may have found the reports of Rose's conduct at the meeting humorous, Loeper nonethe- less discerned in Rose's espousals of strike action a poten- tial threat which rendered Rose expendable as an employ- ee. It is on the basis of these foundational findings that the evidence pertaining to the retention and promotion of Da- vidson, an employee representative of the collective-bar- gaining negotiations, is diluted as a defense to the action taken against Rose. In all the circumstances, including the involvement of Rose in a form of union-related conduct hostile to Loeper's declared interests, Loeper's knowledge of Rose's involvement, a reasonably based indication that these considerations initiated the process of Loeper's final antagonism toward Rose and Loeper's avowed determina- tion not to settle the contract negotiations with the Union on other than his own terms, the General Counsel must be found to have established aprimafacie case supporting the finding of an 8(a)(3) violation. But the record does not rest here. A careful evaluation of the record evidence pertaining to the dialogue and events which formed the substance of the November 3 meeting discloses, in final analysis, a frenetic search on Loeper's part to justify his decision to terminate Rose, a decision which I find he had reached prior to actually convening the meeting. Thus, at the outset of the meeting, Loeper mistak- enly assessed blame against Rose for work performed in the shop during a period of time when Rose was on vaca- tion. Loeper then proceeded to confront Rose with five sets of repair orders which Loeper averred disclosed faulty workmanship and poor employee attitude on Rose's part. Loeper placed reliance on these orders, even though, as the record demonstrates, he had no thorough knowledge of the details pertaining to most of them, suggesting an unseemly urgency inconsistent with honest inquiry. Such explana- tions as Rose proffered met with varying degrees of indif- ference or hostility from Loeper. Efforts on Loeper's part to enlist support from Ted Jones, a shop service writer, in support of the notion that Rose was guilty of comebacks and widespread inefficiency met with failure and Jones was summarily excused from the meeting. Rose was terminated after a discussion neither objective nor thorough in charac- ter and entirely inconsistent with Loeper's professed desire for amelioration or honest evaluation. In final analysis, Loeper predicated his decision to terminate Rose on assert- ed deficiency in Rose's work, and his alleged insubordina- 10 BILL LOEPER FORD tion and his nonadherence to scheduled work hours were given only incidental gloss and no substantial weight." The absence of bona fide justification flowing from the character of Rose's work is found in the fact that the 30- minute meeting disclosed only two sets of repair orders - those relating to the Gomes and Loeper automobiles - which could reasonably be characterized as representing faulty work on the part of Rose. The other three sets of orders - those pertaining to the Carlson, Cannon, and Gilliland automobiles - under any reasonable assessment, disclosed workmanship on the part of Rose consistent with competent craftmanship. Given the quantity of work per- formed by Rose and the imperfect nature of a craft in which 12 to 24 "comebacks" per year would be "normal," a fair analysis fails to sustain Respondent's assertion either of a poor work record by Rose or of a deteriorated work performance on the part of Rose during the period immedi- ately preceding his discharge. Indeed, it must be concluded from the entire record that Respondent recognized the paucity of support for Loeper's decision, for, in defense, Respondent gave distorted inter- pretation to the Gilliland repairs, assessing unwarranted responsibility upon Rose for the asserted loss of Gilliland patronage and good will. Moreover, and in close relation- ship, in defending the matter before me, Respondent placed reliance on other repair orders, none of which were discussed with Rose during the November 3 meeting, and some of which came to Respondent's attention only after Rose was discharged. This latter evidence, like the evidence of record revealing a tendency on the part of Loeper to adjust and vary at various postdischarge stages the empha- sis given the numerous component parts of the Company's evolving defense, compels the conclusion that the reasons advanced by Respondent in explanation for Rose's dis- charge are false. Being thus convinced, the inference is warranted that these false and pretextual explanations are advanced to cloak an unlawful motive. See Shattuck Denn Mining Corporation (Iron King Branch) v. N.LR.B., 362 F.2d 466, 470 (C.A. 9, 1966). 1 invoke this inference and reach the conclusion that Respondent did act unlawfully in terminating Rose. Respondent's reliance upon the legal proposition to the effect that it was not how Rose actually performed his work but how Loeper reasonably perceived the quality of his performance is misplaced, for the record forecloses the existence of good-faith perception on the part of Loeper with respect to Rose, while disclosing at the same time the existence of unlawful motive which removes Rose's termination from the area of legitimate manage- ment prerogative. Cf. Bayliner Marine Corporation, 215 NLRB 12 (1974). IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and " That Loeper would be matenrially influenced by instances of insubordi- nation occurring months earlier is most unlikely. The evidence reveals that at the time of his discharge Rose was heeding instructions pertaining to work hours. 12 In the event no exceptions are filed as provided by Sec. 102.46 of the substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(aX)(1) and (3) of the Act, I shall order that it cease and desist there- from and take certain affirmative action designed to effec- tuate the policies of the Act. Having found that on November 3, Respondent discri- minatorily terminated the employment of Harold Rose, I shall recommend that Respondent offer Harold Rose im- mediate and full reinstatement to his former position of employment or, if that position is no longer available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make Rose whole for any loss of earnings he may have suffered by reason of the discrimination against him. Backpay shall be computed in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), together with interest in accordance with the policy of the Board, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the fol- lowing: CONCLUSIONS OF LAW 1. Bill Loeper Ford is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aero- space Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. On November 3, Respondent discriminatorily termi- nated the employment of Harold Rose in violation of Sec- tion 8(a)(3) and (I) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 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 12 The Respondent, Bill Loeper Ford, Santa Maria, Califor- nia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by unlawfit!!y terminating the employment of its employees, or by discriminating in any like or related manner with respect to their hire or 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. II DECISIONS OF NATIONAL LABOR RELATIONS BOARD tenure of employment or any term or condition of employ- ment in violation of Section 8(a)(3) of the Act. (b) In any like or related manner interfering with, re- straining, or coercing any employee in the exercise of the right to engage in self-organization, to bargain collectively through representatives of their own choosing, or to act together for collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Make Harold Rose whole for any loss of wages which he may have suffered by reason of the discrimination against him, in accordance with the recommendations set forth in the section of this Decision entitled, "The Reme- dy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, 13 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 Pursuant to a personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Santa Maria, California, dealership, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's repre- sentative, shall be posted by it 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 31, in writ- ing, within 20 days of the date of this Order, what steps the Respondent has taken to comply with herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 12