J. R. Townsend Lincoln-Mercury

TOWNSEND LINCOLN-MERCURY 71 J. R. Townsend Lincoln-Mercury and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 21-CA-10692 March 2, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On November 1, 1972, Administrative Law Judge Allen Sinsheimer, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order,' as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, J. R. Townsend Lincoln-Mercury, San Diego, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified herein. Substitute the attached notice for the Administra- tive Law Judge's notice. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge, particularly his failure to discredit all and not just part of employee Aicher's testimony We find no ment in these exceptions As Judge Learned Hand stated in N L R B v Universal Camera Corp, 179 F 2d 749 (C.A 2), reversed and remanded on other grounds 340 U S 474, "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it, nothing is more common in all kinds of judicial decisions than to believe some and not all" It is the Board's established policy not to overrule 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, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in 202 NLRB No. 12 International Association of Machinists and Aerospace Workers , AFL-CIO, or any other labor organization of its employees by discrimi- nating in regard to their hire or tenure of employment or any term or condition of employ- ment. WE WILL NOT coercively interrogate employee3 concerning union membership or activities. WE WILL NOT create the impression of surveil- lance of union organization , activities, or meet- ings. WE WILL NOT threaten individual or group reprisals or discrimination because of union membership, organization, or activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the.Union or any other organization, 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 , or to refrain from any or all such activities, except to the extent such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment. WE WILL offer Henry (Pete) Chamberlin and Edward Garcia immediate and full reinstatement to their former employment or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have sustained as a result of the discrimination against them. J. R. TOWNSEND LINCOLN-MERCURY (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD South Broadway, Los Angeles, California 90014, Telephone 213-688-5254. DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR., Administrative Law Judge: This proceeding was heard at San Diego, California, on May 23 to 26, inclusive, and June 5 and 6. The complaint issued on March 31, 1972, and an amendment thereto was issued May 8, 1972.1 The complaint as amended alleges violations of Section 8(a)(1) and (3) of the Act.2 Respondent has denied any illegal conduct. Upon the entire record, including my observation of the witnesses, and after due consideration of the brief of the General Counsel and positions indicated by Respondent during the hearing, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Respondent is a company engaged in the retail sale of automobiles with its place of business in San Diego, California. In the normal course and conduct of said business it derives annual gross revenues in excess of $500,000. It annually purchases goods, products, and services valued in excess of $4,000 directly from firms located outside California. Respondent admits and I find that it is an employer engaged in commerce and a business affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction At issue are certain alleged 8(a)(1) activities and the alleged discriminatory discharge of three persons. Also at issue is whether Respondent had knowledge of union activities of any of alleged discriminatees at the time of their termination and whether or not Phil Davis, the shop foreman, was a supervisor at all times material. The General Counsel asserts he was such and Respondent that he was not. B. The Facts 1. Status of Phil Davis Although the status of Davis may not be essential to the issue of knowledge of union activities by Respondent, such relates thereto, and also to certain, alleged 8(a)(1) conduct and to the discharge of Frederick Aicher. The admitted supervisory structure (other than sales) of Respondent is as follows: its president is Robert Town- send; directly under him is General Manager Jene Warren; under Warren is Service Manager Ken Boes, who, however, reports directly to Townsend. As service manag- er, Boes supervises the operation of all areas of the service department, including the tire and parts department, the body shop, and the mechanical operations. There is an assistant service manager, John Morgan. Boes and Morgan also act in the capacity of dispatcher which is admittedly a supervisory position. The body shop has a manager and assistant manager and about nine employees. There are 19 mechanics paid on a commission basis, and 6 other employees who are hourly paid. In addition to the admitted supervisors, Townsend, Warren, Boes, and Morgan,3 there is Phil Davis, the shop foreman who works in the service department directly under Boes on a salary basis. Davis' position is disputed with conflicting evidence as to his functions and duties. The Respondent denies that Davis has any supervisory capacity. The Respondent's position is that although Davis has the title of shop foreman, his function is to take care of maintenance, to run the diagnostic clinic when necessary, to road test cars, and to assist with mechanical problems. Berkeley Smith, business manager and treasurer of Respondent, who testified as to the supervisory structure of the Respondent and its service area, did not include Davis as one of its supervisors and stated that Davis enjoyed fringe benefits like those of some employees. Townsend testified that Davis did not have the right to hire and fire and denied that he ever told alleged discriminatee Fred Aicher that Davis had such power. Davis in part testified that he did not possess any authority and that his functions were simply that of aiding and helping employees. The General Counsel relies on the following to establish the supervisory capacity of Davis. Former employee and service writer Edward Godfrey testified that Davis could fire employees. Godfrey based this conclusion on a meeting at which Townsend and Warren were present and one of them said to Davis that they were going to have to get the cars road tested so as not to have comebacks which were getting out of hand. According to Godfrey, Davis made a statement that there was just so much he could do and was told "either shape them up or we'll get somebody else to shape them up." According to Godfrey, Davis said he was having trouble with a couple (of men) in the shop and was told by Warren or Townsend, "Well, if they don't do their work properly, and they don't do what you tell them to, get rid of them." Alleged discriminatee Fred Aicher testified that Kenneth Boes discussed Davis' position with him in February 1972 and told him "If you need any help or want to know anything, ask Phil Davis." Aicher also testified as follows with respect to a conversa- tion with Townsend when he was fired in March: "Well, when I was fired, I went in and asked him; I told him I had been fired by Phil Davis and I said, `Can he do that?' and he said, 'Yes, Phil Davis does have the right to hire and 1 An original charge was filed February 25, 1972, and a first amended charge March 24, 1972 2 Three discriminatory discharges are alleged 3 The body shop manager is also admittedly a supervisor TOWNSEND LINCOLN-MERCURY fire.' And because I had just got fired by him I guess he did.' 14 Chamberlin and Davis testified that Davis' approval was necessary for a mechanic to order any warranty parts for a job and that Davis would have to initial such an order before it would go through. Davis also testified he has a part in ordering and requisitioning shop supplies, which consist of his ascertaining "what tool it is" and then referring the matter to Boes to handle. He also meets about once a month with Boes to discuss what supplies need to be ordered. Charles Hutchison, a tuneup technician and prior hereto shop foreman, testified that if equipment is out of order Davis is called and is in charge of getting it repaired. Hutchison also testified that with respect to cars that he had road-tested, he would call Davis because ". . . I will want someone in authority to recheck my work so they're not just taking my word for it; you might say to get me off the hook to make sure it's right." Davis has been with Respondent for about 19 years. He punches a timeclock, although he is on a salary, and is not paid for holidays. Davis became the shop foreman when Charles Hutchison left that position. Hutchison testified that he understands Davis is the shop foreman, that Davis took his place and does the same type of work that Hutchison did when he was shop foreman. Hutchison testified that as shop foreman he had terminated employ- ees and had recommended hiring and discharging of employees. However, Hutchison could not recall firing anyone, and didn't believe he had hired anyone during the most recent time he was shop foreman from April 1969 to December 1970. Hutchison said he recommended that two employees be fired, but that Boes didn't let them go immediately although he did eventually. As shop foreman, Davis regularly relieves the dispatcher at lunchtime as does Boes. During the period involved herein, Davis spent a substantial amount of time working in dispatch. The dispatcher's position is usually manned by supervisors. Hutchison testified he considered Davis had authority to rule on the work and see it was done right and that in flagrant cases calling for automatic dismissal, Davis would have authority to let a man go. Aicher testified he considered Davis to be his boss. Aicher also testified credibly that Davis gave him orders as to work to do and Boes also gave him orders. Godfrey and Hutchison testified in substance that they considered Davis to control and direct the work in the service department. Also as shop foreman, Davis has the responsibility of checking out the work of the mechanics on road tests, and either approving it or sending it back for reworking. Davis' decision is generally accepted as final. However, in the latter connec- tion it is not clear whether this is because he has authority or because his judgment is highly regarded. According to Hutchison, Davis can and does grant employees time off from work. Hutchison said he requested and immediately was given time off by Davis (who did not consult Boes) about 6 months before the hearing. Hutchison also testified he usually asks Boes for time off. 4 The issue of Aicher's "firing" will be discussed post As for Aicher's testimony, this as set forth, supra, was denied by Townsend I am here crediting this testimony of Aicher, whom I observed carefully, although I am not crediting certain of his testimony post for reasons set forth 5 Davis also testified' 73 Davis testified he has no power to exercise any judgment, that he is another employee who punches a timeclock, and in essence all he does is to be helpful at times in the work he performs, including road-testing and diagnosing autos. However, Davis admitted he did collect and distribute timecards, that on occasion he saw to it that employees performed their work satisfactorily, reporting to the dispatcher (who may be Boes, Morgan, or now Hank Heeber) when he saw employees standing around and not performing work.5 Davis asserted that this was really another interest to see that employees got work and made money. Davis testified in connection with circumstances leading to Aicher's termination that Aicher was standing around doing nothing, that Davis inquired of Aicher as to what Aicher was doing and why he wasn't at work, that he had shown Aicher how to punch the timecard, and finally went with him to Boes when Aicher in response to Davis' question indicated he wasn't sure whether he wanted to work or not. This will be considered further hereafter. Davis also in order to perform certain painting on weekends had inquired of the men as to who was available. Although Boes showed up during part of the time, it is evident that the only one in charge was Davis, although he tried to make it appear that no one was in charge. However, he did testify: TRIAL EXAMINER: Who directed the people or who was in charge of this painting project? THE WITNESS: Well, I guess-I guess you could say I was more or less in charge of it. Davis also said Boes stopped by for about 10 minutes the first Saturday but didn't recall seeing Morgan or Town- send. Davis also admitted that he had to break in new employees, and tell them what to do. Although in some instances herein I am not crediting Aicher, I am crediting him with respect to Davis' authority or apparent authority, and also crediting Godfrey and Hutchison. I am not crediting the testimony of Boes and Davis that Davis had no authority. This is based not only on my observation of the witnesses, but on all of the circumstances surrounding Davis' duties and functions, as well as other incidents involved herein, concerning Boes, Davis, and Townsend, which I do not find credible, including their denials as to knowledge of or concerning union activity prior to the terminations of any of the alleged discriminatees. I am accordingly finding that Davis both possessed and appeared to have authority as a supervisor including authority to terminate employees and to take charge of the work. In so finding, I have recognized that Boes and Morgan both were supervisors of the service operations. I find that while Davis may not have been a principal supervisor he exercised such supervisory authori- ty as to the firing of employees and as to the direction of the work as to make him a supervisor under the Act, and I so find. TRIAL EXAMINER' What concern of yours was whether Mr. Aicher was working or not'i Where did this fit into your job function9 THE WITNESS What part of it was my concern was when he's wandering around, he's bothering other help in the shop and they wasn't getting their particular work done 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Evidence of company knowledge and alleged 8(a)(1) conduct Respondent's officials and witnesses, Townsend, War- ren, Boes, Morgan, and Davis, denied any knowledge of union activities until after alleged discnmmatee Pete Chamberlin was terminated on February 22 or 23 under circumstances discussed post. They also denied engaging in any acts in violation of Section 8(a)(1). According to alleged discriminatee Fred Aicher, on Thursday, February 17, General Manager Jene Warren started a conversation in the new-car parking lot, that ended in Warren's office. Warren asked him what he knew of the Union to which Aicher replied he did not know anything. Aicher testified Warren then told him about how the Union was bad and would take away money he worked for and give long hours. Aicher then testified: ... He also went on to say that he knew there was Union organizing going on and he knew that Pete Chamberlin was the head of it. [Emphasis supplied.] He also went on to say that if he was me-if he was me, I should not attend the meeting coming up because Jene Warren- Excuse me-because Jene Warren -Not Jene Warren-because Bob Townsend and Ken Boes would be there. And not to mention the conversation to anyone; that he would talk to me later. Aicher further testified: Q. Do you recall anything else? A. No sir. Q. Did Mr. Warren, or did he not, mention anything to you about what would happen if the Union came in? A. Yes, he did. Q. What did he say: A. He told me if the Union did come in, that him-I guess meaning the Company-would sniff out anyone that had anything to do with the Union and that would be the end of it. [Emphasis supplied.] According to Aicher a few days after a union meeting which was held February 18, Warren again talked to him about the Union. Aicher said the conversation was somewhat hazy and "didn't ring a bell right now." Aicher then testified: Q. Did Mr. Warren, or did he not, mention any employees' names to you at that time? A. Yes, he did. Q. Whose name did he mention? A. Pete Chamberlin, Ed Garcia, Bob Weber, a few others; I don't remember the other names. Q. Do you recall what he said about these people, if anything? A. That he knew that they had been to the Union meeting. He had had proof that these people had appeared at the Union meeting, and he also had proof that I had been there. [Emphasis supplied.] Aicher further testified: Q. Now, do you recall whether or not he men- tioned having seen you talk to anybody? A. Yes, sir, he did. Q. What did he say in that regard? A. He said he had seen me talking to Pete Chamberlin and he wanted to know if it had anything to do with the Union. And I said, "No, it didn't. We were talking about cars that Fred Roberts had built and Pete, I guess, was helping him." Q. Did you tell him anything else, or did he say anything else to you? A. He told me that he knew Pete was the head of this organizing the Union. [Emphasis supplied.] Subsequently on cross-examination, Aicher, after repeating most of the foregoing, testified: A. Well, it just doesn't come into my mind just yet. He told me that he did know that there was Union organizing going on , and it had better stop or a few people would be out of jobs. He did not mention any names. [Emphasis supplied.] Q. And during this conversation, Mr. Warren didn't mention any employees by name? A. I'm pretty sure he did ; but I wouldn't say yes or no right now. The latter, while substantially consistent with his prior testimony, is in part inconsistent with respect to the names previously listed on direct examination by Aicher, supra, when in responding to a question of whose names did Warren mention , Aicher said: A. Pete Chamberlin , Ed Garcia, Bob Weber, a few others; I don't remember the other names. Aicher also testified that Townsend questioned him about the Union . Once Townsend asked him what he knew about the Union and he replied "Nothing." The second time in Townsend's office, Townsend asked him what he knew about Pete Chamberlin and the Union . Aicher testified he said as far as he knew Pete was against the Union. Townsend told him he thought he was lying and: ... He says, "I have proof that you and Pete are both in the Union-are trying to organize a Union and that you have appeared at a meeting." Aicher further testified that Townsend said : "If you hear anything else; to let him know." On cross-examination Aicher testified: TRIAL ExAMINER: Just what did Mr. Townsend say to you about Pete Chamberlin: THE WITNESS : Well, first off, he asked me what I knew about Pete and the Union. I told him nothing ; as far as I knew Pete was against the Union ; he didn't have anything to do with it. Then he called me a liar and told me that he had proof that Pete was the head of the Union drive. [Emphasis supplied.] Aicher also testified that Boes spoke to him about the middle of February and asked what he knew of the Union and he replied that he didn't know anything. According to alleged discriminatee Edward Garcia at the time he was terminated on February 18, Boes kept asking him, "what's going on around here" and Garcia responded he did not know what Boes meant . Body Shop Manager Walter Gansberg, an admitted supervisor, testified as to a TOWNSEND LINCOLN-MERCURY 75 conversation with an employee, Bruce Lemm, in which Lemur said, "Well, they had a Union meeting last night." Since the only union meeting indicated in the record was held on February 18, this would place this conversation as of Saturday, February 19. [Emphasis supplied.] Aicher testified that Davis discussed unions twice. The first time was in Davis' pickup truck on the Saturday morning after the union meeting which was the evening before. According to Aicher, Davis asked him that February 19 what he knew about the Union and Aicher replied "nothing." Aicher testified Davis then asked how the union meeting went that was held at Kings Inn the night before. Aicher testified he said, "I guess it went all right." Davis then told him the Union would give him bad hours and take his pay. Aicher testified that 3 or 4 days later he had another conversation with Davis at the wash rack. According to Aicher, Davis asked what he knew about the Union. Aicher said he knew nothing. Aicher then testified: ... He told me that he knew that I, Pete, and a few others, had attended the meeting. He knew that Pete was running the organizing for the Union. [Emphasis sup- plied.] And he went on to tell me about how the Union was bad. Q. What did he say in that regard? A. He told me that the Union would take money away that you would work for and they would give you bad hours. Employee J. R. Lewis testified he was asked by Davis what he thought about the Union and replied he really didn't know and was not a union man. According to him, Davis said, "Yeah, I know you didn't go." Davis also questioned Neftali Olivo concerning the Union a week after Chamberlin was fired. According to Olivo, Davis said, "What do you think about Pete?" and then "What do you think about Union?" Olivo said, "I never heard it before." [Emphasis supplied.] According to Pete Chamberlin on February 21 about 9:30 a.m., he asked Davis to road-test a car. During the test Davis asked him how everything was going and when Chamberlin said "pretty good" Davis said, "what's pretty good." Chamberlin asked ". . . What do you want to know?" Davis then asked "what's going on around the shop here?" Chamberlin said the employees had had a union meeting and "everybody wants pretty much to go union." Chamberlin told Davis that he had been elected inside representative for the Union to represent the mechanics and get them all signed up and he had got quite a few people signed up and was still doing so at work, etc. Davis told him the Union wouldn't do them any good and they didn't need one. Davis told Chamberlin the Union had tried to organize before but the mechanics had turned it down .6 The foregoing statements or assertions of interrogation, threats, etc., were either generally or specifically denied by Warren, Townsend, Boes, and Davis. While I am not 6 1 also note (1) Warren's mention to Aicher of Chamberlin as head of union organizing , (2) the conversation between Townsend and Ascher, supra, about Chamberlin as head of the union drive, (3) Davis' reference to Chamberlin as the leader in a conversation with Ascher, supra, and (4) Davis' inquiry to Olivo as to what he thought of Pete and the Union crediting Aicher in some respects where his testimony was directly and solely in his own interest, I am here crediting his testimony since it coincides with that of Chamberlin (and also Lewis and Olivo) with respect to questioning of him by Davis and with that of Garcia who was questioned as set forth by Boes and because of my observation of all of these witnesses. There are also the facts that this is not a large operation and that the organizing evidently had been conducted openly.? Further, on previous occasions in 1970 former employee Elmer Larson8 testified Boes had asked employees to let him know if there was going to be any organizing for the Union. Also, according to former employee Edward Godfrey, in 1970, Boes told him, "Any time you hear of anybody mentioning a Union, you let me know." I accordingly find from the foregoing that Respondent was aware of union activity as early as February 17 or sooner, and that it conducted the interrogation and made the statements and threats set forth above. I find the Respondent thereby illegally interrogated employees, created the impression of surveillance, and threatened employees, all in violation of Section 8(a)(1) of the Act. 3. The alleged discriminatory discharge of Chamberlin Henry (Pete) Chamberlin commenced employment as a mechanic for Respondent in October 1970 and was considered by Boes to be a satisfactory mechanic. In December 1971, Chamberlin and three other employees took an extended lunch period during which time they split several pitchers of beer and returned to work after about a 2-1/2 hour absence. Boes encountered Chamberlin shortly after his return, asked where he'd been, and when Chamberlin told him they'd been to lunch and split a few beers, Boes told Chamberlin he was terminated. Chamber- lin learned the others had also been terminated. He and one other employee asked Townsend to reconsider their termination and Townsend said he would discuss it with Boes. About 4 o'clock, Chamberlin called Townsend who told him to see Boes. The next day Chamberlin saw Boes, who gave his job back after Chamberlin explained that he had not been driving and did not have control over when they returned, but Boes would not permit Chamberlin to return for a few days. Boes also told Chamberlin he was giving him another chance and said, according to Cham- berlin, "I don't want to ever catch you being late for lunch or drinking or anything again. I'm going to keep an eye on you and make sure you never do it again." Chamberlin responded, "Well I won't ever do it again .. .." Boes essentially corroborated this, testifying in part that he told Chamberlin: . All right. We'll take and give you another chance. And if anything fouls up again," I says, "I'm not going to give you another chance. That's going to be it." So, then, he wanted to come back to work that day. I Chamberlin testified credibly that during the 2 or 3 days after February 14 he discussed the possibility of obtaining representation with some employees during free time in the shop 8 Larson was fired by Boes 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And I says, "No," I says, "I don't want you back to work now." I says, "You go home, take the rest of the week off, and come in Monday; and that'll give you a long time to think about it." About Monday, February 14, at Frank Gates' stall, a discussion took place at which were present Chamberlin, Ed Garcia, Fred K. Marshall, and Gates. This related to a company policy concerning a $100 paycheck deduction for accidents, and in particular money taken out of Ed Garcia's paycheck and that of another employee, Manuel Maldonado. Chamberlin mentioned that a union might help, other employees concurred, and Chamberlin ob- tained the Union's phone number. Subsequently, Cham- berlin contacted the Union and then began to discuss the matter with fellow employees. On February 17, Chamber- lin contacted the Machinists Union by telephone and subsequently a meeting was arranged for the evening of February 18. Chamberlin credibly testified that he went around and told all of the mechanics and some body shop employees and some paint shop employees of the meeting during the same day as the union meeting on February 18. Chamberlin further testified this was attended by about 20 mechanics and he was elected to be the inside representa- tive. Employee Ed Garcia also talked about the Union to other employees. However, it is clear that Chamberlin was the principal spokesman or advocate of the Union at this point. Prior to this time early in February, Erme Alvarado, a detail man in the new-car department, asked Chamberlin to work on his car. Chamberlin told him to get a work order. Alvarado went to Richard Sabo, a service writer, to get one. When asked who was going to perform the work, Alvarado said "Chamberlin." Sabo initialed the order and handed Alvarado the complete repair order with all copies intact. Alvarado took the order to Chamberlin, who put it in his toolbox in plain sight. Sometime on February 17, Chamberlin decided to do some work on his own car and went to the dispatch office to get a work order. According to Chamberlin, when he asked the dispatcher, Hank Heeber, for a repair order to work on his own car, Heeber told him he was busy and for Chamberlin to get the order and fill it out. Chamberlin took the repair work out of the dispatch office and back to his work area. Heeber testified he never discussed this repair order with Chamberlin, and never gave Chamberlin or anyone a blank repair order. Although Heeber so testified, it is evident that Heeber and other service writers (or dispatchers) occasionally did issue and handle repair orders in such fashion when work was to be performed on an employee's own car. Edward Garcia testified with respect to Heeber: Q. Did you ever get a repair order from him to work on your own car? A. Yes, I did. Q. What would he do on those occasions? A. If he was not busy at the time, he would write one out for me. He would ask the mileage on my car and ask me what the problem was. A lot of times just goof around, write on there "Fix something." 9 These and certain orders introduced as evidence manifest a certain amount of frivolity in handling some orders involving employees 10 All copies Q. He would write that where? A. On the repair order. And I used to tell him, "don't write that; Kenny Boes will get mad." He'd ask me, "Well, what's the problem?" I'd say, "I want to check out my exhaust system," or something like that. Q. Do you recall any specific occasions when Mr. Heeber wrote "Fix something" on the repair order? A. Not a particular time ; but I know he's done it, yes. Q. With you? A. Yes; he's done it once or twice that I can remember. TRIAL EXAMINER: On whose car? THE WITNESS: On my own car.9 Several mechanics, W. R. Lewis, William Wisto, and Michael Palermo, testified it was not unusual for a mechanic to have a complete work order 10 in his possession. Service writers Edward Godfrey and Richard Sabo also testified there was no rule forbidding this practice; Godfrey said he had, during about 3-1/2 years as a service writer on about half a dozen occasions (when very busy), given a mechanic a complete work order (all copies attached) covering work on the employee's own car. Sabo, currently a service writer for over a year, said it was not unusual to hand a complete work order to an employee for work on his own car and he knows of no policy against it. Sabo testified: ... But I would say if a mechanic would come in and ask me to write a ticket on their car, I would probably hand just about every one of them the whole ticket. Sabo also testified if someone asked for a ticket for work on a car not his own: ... Perhaps. Several times I may hand it to him. Several times I may tear it apart myself and hand the soft copy in to the dispatcher. On February 22 at 9 o'clock Boes walked into Chamber- lin's work area, saw the two repair orders, and asked him why he had one covering his car and one covering Alvarado's car in the toolbox. Chamberlin answered he had them because company policy required him to have one for each job for insurance purposes.ii Boes separated the soft copies from the hard copy of repair order 13194 (covering Chamberlin's vehicle) leaving the hard copy in Chamberlin's box and walked away carrying all copies of repair order 12778 (involving Alvarado's vehicle) in his hand. Boes and Chamberlin's testimony appear consistent in this respect. Boes indicated that one thing that bothered him was the length of time that Alvarado's order had been with Chamberlin. It is evident from the company's manual that employees can work on other employees' cars. However, there is a provision in the manual that then they are to be charged for this but given a 20-percent discount. With respect to work on fellow employees' vehicles, it appears from the testimony of a substantial number of witnesses that charges have varied from nothing to something between nothing and the approximate 80 percent that should have 11 Testimony of numerous witnesses including Chamberlin, Godfrey, and Larson was that they understood company policy required a work order for insurance purposes TOWNSEND LINCOLN-MERCURY 77 been charged according to the manual. In part the charge would depend on the length of time the work would take and the extent and nature of the job involved. The charge apparently also varied depending on which persons' vehicles were involved.12 Boes said he thought he had discussed repair orders at service meetings. Boes also testified: Q. Did you say anything to the employees at service meetings or any other time about whether or not there should be a charge made for work done on other employees' cars? A. No, I never discussed any charges whatsoever. I just took it for granted, you know, that they knew their work was supposed to flow through, just like a customer's repair order. I did not know I had to take and check on them. It would appear both from the standpoint of insurance requirements and also from the Company's manual that work orders would be requisite. Normally the hard copy of the work order would be given to the employee and the other copies retained by the dispatcher or service writer for accounting and other purposes. This was obviously essential in the case of warranty matters or service of outside customers. However, as set forth, there were numerous instances where the normal procedure was not followed in the case of the worker's own car or those of fellow employees. About noon, Chamberlin left and testified he told Davis he was going home for lunch, that he "had the flu," and that if he did not feel better he would not return. Chamberlin testified that Davis said okay. Then, according to Chamberlin, about 12:30 his wife telephoned the dispatch office, talked with Davis, and told him that Chamberlin would not be back to work that day because he was sick. Davis denied that Chamberlin spoke to him about being ill before leaving work. He admitted that he received a phone call from Chamberlin's wife but testified the call came about 3 o'clock instead of 12:30. Boes testified that it was reported to him later on and he forgot who told him but he was inquiring "if anybody heard from Pete." Somebody then told him his wife had "called five or ten minutes ago and she said Pete came home sick at noon and I had to put him to bed." According to Boes, this was about 4 or 4:30 in the afternoon. Boes had first denied that he had been informed by Davis that afternoon that Chamberlin's wife had called, but after being shown a transcript from an unemployment compensation hearing, Boes admitted that he had been so informed late in the afternoon. According to Boes, shortly after Chamberlin left work, he looked for him to discuss the work orders and kept waiting for him to come back. About 3:30 or 4, when he did not show up, Boes decided to terminate him. Boes testified he made the decision because: Well, because the first thing that popped in my mind, you know, is I probably got the same thing I had back in December. So this is the first thing I thought of. So this is why. A few minutes later, Boes was told that Chamberlin's wife had called earlier to advise that Chamberlin was home sick. Boes testified he had already decided to terminate Chamberlin about 2 or 2:30 before he was told by Davis that Chamberlin had called in. Boes testified he usually investigated matters such as absences and when he found the employee had an adequate explanation, he usually reconsidered his decision. In this case, Chamberlin's calling in coincided or conformed with such policy which had been followed in the case of mechanic Bill Wisto, who had been ill about the same time and was excused after calling in and telling the service writer he would not be at work. However, Respondent's position is that in Chamberlin's case the December incident immediately came to mind and this led Boes to decide that he should be terminated, particularly because of the apparently similar way the absence occurred. Boes testified (as set forth post) the repair orders had simply led to this matter but had not been a decisive factor in the termination of Chamberlin. However, on the morning of February 23, when Chamberlin arrived for work, he was told to report to Boes. Boes, with Morgan present, told Chamberlin he was terminated and gave him his paycheck. Chamberlin asked why and Boes told him the reasons were set forth in the termination notice attached to the check. Boes also referred him to page 11, relating to work on fellow employees' cars and explained the reasons for discharge. This termination notice reads: On Dec., 15, 1971 Chamberlin was warned about our company rules. He was found taking a 2-1/2 hr. lunch period with intoxicating smell on him when he came back, he was repremended [sic]. Then on January 6, 1972, we held a service meeting about our company rules & employee guidebook. Then on February 22, 1972, I found a repair order that Chamberlin wrote and we had no record of it. We found that Chamberlin would no [sic] comply with our rules & policies. The R.O. 13194 was for checking brakes and R.O. 12778 to check engine. As indicated, this refers to the December incident, then the guide book rules, and then the repair orders which Boes did not rely on when he testified, but rather the fact that Chamberlin had taken off without notice. Boes testified as follows: TRIAL EXAMINER: All right. Now, was it because of the repair orders? Or was it because you did not see him there that afternoon that you decided to terminate him? THE WITNESS: No, it was because I did not see him there that afternoon. I was just going to talk to him about the repair orders. s s • s Q. (By Mr. Greaves) So it was not the repair orders that caused you to terminate him; it was the absence. Is that correct? A. Right. [Emphasis supplied.] Q. All right. Now, you found out where he was the afternoon of February 22 by asking the dispatcher had he seen Pete ; right? A. No. 12 Not only was it permissible for employees to work on each other's cars but, according to witnesses Ray Wood and Charles Hutchison, in some cases they charged and in others they did not for the work for a fellow employee 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. The dispatcher told you where Pete was when you inquired where Pete was, didn't he? A. No, he didn't. Q. He did not tell you that Pete's wife had called in and told him that Pete was sick? A. No, he did not. Q. Did you testify in an unemployment compensa- tion hearing involving Mr. Chamberlin on April 13? A. Yes, I did. Q. I direct your attention to page 4 of Respon- dent's 2, lines 21 through 28. Would you read that to yourself. A. (Witness examining document.) Q. Did you talk to the dispatcher about Pete Chamberlin on the afternoon of February 23? A. Well, the dispatcher was Phil Davis at noon, and, then, he was back in there at 4:00 o'clock. And Phil Davis was the guy I talked to, yes. Q. What did he say about Pete Chamberlin? A. He said, "His wife just called and said Pete went home at noon and he was sick and she had to put him to bed." According to Chamberlin, Boes told him when terminated that if he ever returned to the premises, he was not to talk to anyone but Boes or Morgan. Chamberlin then said he told Boes the employees were organizing, that he, Cham- berlin, had been behind the drive and Boes told Chamber- lin he had not realized this. According to Boes, at this time Chamberlin threatened to "get" him. The foregoing raises certain questions as to the motiva- tion for Chamberlin's discharge. Although Respondent denies any knowledge of his union activity, based on my finding, supra, I find and conclude that Respondent did have knowledge of the union activity, including particular- ly that of the leader, Chamberlin. As for Respondent's asserted reason for Chamberlin's termination, although Davis denies hearing from Chamberlin's wife at noon, there is no question that Davis did receive a phone call from Mrs. Chamberlin in midafternoon apparently prior to the time that Boes determined to fire Chamberlin. Also, Boes was informed of this call by Davis before he had effected Chamberlin's termination, but this information did not cause him to reconsider carrying out the termina- tion. On the one hand, Boes testified he issued the termination notice which places particular emphasis upon the repair orders as a reason for termination, while to the contrary Boes testified that the reason was that Chamberlin had left without giving proper notice. It may be arguable that, in view of Chamberlin's conduct in December and this apparent continuation thereof and perhaps a hasty reaction thereto by Boes, the termination can be viewed as other than pretextual. However, this must be weighed in the light of the inconsistency between the reasons given on the termination notice; namely, the possession of the repair orders, etc; the fact that such retention, although it may not have been common practice, had occurred on quite a number of occasions among employees ; that Boes testified he did not rely on the repair orders ; and finally that, even though it was brought to his attention that a call had come from Chamberlin's wife that Chamberlin had been home ill, he continued on this path to terminate Chamberlin. Now it may be that Chamberlin could or should have done something more, but illness does not in many cases permit the time or the opportunity and Chamberlin did indicate that he had so informed Davis when he went home. In this latter connection , there is a question as to why, if Chamberlin had told Davis , Chamberlin's wife would also call to inform someone who turned out to be Davis evidently earlier than Davis said she had called . It may be that Chamberlin wanted to make doubly sure that there was awareness of his illness or Mrs. Chamberlin may not have been aware that he had informed Davis when he left. In any event, it is clear that Chamberlin did endeavor to inform management of his illness and succeeded in at least informing Davis, who at that time was acting as dispatcher, and therefore in a management capacity whatever he may otherwise have been.i3 In view of my finding of Respondent's full awareness of Chamberlin's leadership in the union activity , Boes' prior as well as present expressed interest therein , as found above, Respondent's interrogation and other activities in violation of Section 8(a)(1), the evidence establishing that employees holding complete orders was not uncommon,14 the inconsistency between the termination notice and Boes' testimony 15 as to the reasons for the termination of Chamberlin, the continuation with such termination in spite of information that Chamberlin had gone home ill, and, accordingly, a termination that has not been satisfac- torily explained, I find and conclude the termination of Chamberlin was pretextual and in violation of Section 8(a)(1) and (3) of the Act. 4. The alleged discriminatory discharge of Edward Garcia Edward Garcia was a lube man. About February 2, he was instructed to check a shop pickup truck for needed repairs. Garcia proceeded to check the transmission with the motor running, found the emergency brake did not work, and placed the truck in "park." While he checked the transmission, the truck slipped into gear and rolled off the rack into a car parked nearby, causing damage. Garcia admitted that he had noted prior to this that the gears slipped and hence was aware thereof. About the same day another employee, Manuel Maldonado, had an accident in which Maldonado, driving the shop truck, and the Respondent's assistant manager in an automobile collided in the parking lot. According to Respondent 's established policy, $100 was deducted from the February 11 paychecks of both Garcia and Maldonado for their accidents. There was also taken out of Garcia's paycheck on that occasion a deduction of $17. Garcia had not been told prior thereto that such deductions would be made. He asked Boes about the deductions in Davis' presence . Boes told Garcia the $100 was for the insurance deductible covering the damage 13 1 have found him to be a supervisor, supra 15 Further negating the repair order reasons stated in the notice 14 Thereby negating such in the notice as a valid reason TOWNSEND LINCOLN-MERCURY 79 to the shop truck. Garcia was angry and told Boes that the accident had not been his fault because the gearshift lever was defective. According to Garcia, Boes said that if he had known about the defective gearshift at the time "it would not have gone that far" which Garcia understood to mean "that he would not have deducted it out of my paycheck until he had gone fully into it." Boes' testimony vanes from Garcia as to the "fault" issue . Boes testified: The first thing I did was I took and got ahold of the repair order to find out what the truck was in there for, what he was doing to it, and things like that. I found out, you know, that he was going to take and change the oil filter, and there was a notation on the repair order, you know, that the transmission was slipping, there was something wrong with it that had to be repaired. So I thought, well, he tells me, you know, it jumped out of gear and everything like that; so I just felt, you know, if the thing was in there for transmission repair and it was noted on the repair order and he should have been more careful with it. So, therefore, I took it out of his pay. Garcia had failed to clean its battery cables during a previous service job about January 24. Boes in essence corroborates Garcia on this conversation . The car in question had been towed in some 2 weeks earlier. Garcia had not been notified of the mistake and was not called on to rectify it. There is some dispute as to who was responsible for it with Garcia denying the same, but I do not consider this material to ultimate resolution of the issues herein. 17 During the time Garcia was complaining about his deduction, Maldonado also complained to Boes about his and Boes testified that Maldonado like Garcia was "perturbed about" the deduction policy. On February 17 Garcia spoke to Townsend in Town- send's office with Boes and Morgan present . Garcia told Townsend he felt the deduction was "unfair since the gear shift had been defective." Townsend told Garcia that company policy required him to pay for the damage. Garcia said he felt he should have been notified ahead of time of the deduction in order to make the necessary financial adjustments to absorb it. Townsend then told Garcia he would return $75 to him and deduct $25 from his next three paychecks. At one point Garcia testified he asked Townsend about Maldonado's deduction and Boes Q. What did you say to Mr. Garcia and what did he say to you at that time concerning this incident? A. Well, he asked me about the $100 held out of his pay. And I dust explained to him that that was for the deductible on the insurance on the truck. And so he started explaining to me, you know, that the truck had a defective part into it; that it wasn't his fault. So I says, "Well, it was noted on the repair order that they had a problem with the transmission; so why weren't you more careful with it?" And he says, "Oh, Dust don't think it was my fault." And he left. When Garcia asked about the $17 portion of the deduction Boes said he didn't know about that but would find out and let Garcia know. Thereafter, Garcia talked with Maldonado who told Garcia he intended to go to the Board about his deduction. Garcia said he would first try to talk to Townsend before going to the Board. The next Monday, February 14, following discussion among Garcia, Chamberlin, and others as to the unfairness of such deductions, Chamberlin suggested a union might help. According to Garcia and Smith, Maldonado went to "the Labor Commissioner" on the 14th. Garcia testified that Maldonado talked to him again on the 14th and Garcia said he intended to talk to Townsend about his deduction and also Maldonado's.16 On the 15th Garcia met with Boes to discuss the deductions. Boes told him he would have to pay the $100 because it was company policy and that he would also have to pay the $17 portion of the February 11 deduction for a tow bill, since Respondent had to have a car that Garcia had worked on towed back to Respondent's plant because indicated he had "heard the accident was Maldonado's fault." Garcia then told Townsend he felt the company policy concerning deductions "stunk," but that if he wanted to continue working he would have to abide by it. According to Garcia, Townsend then said: "Well, you go ahead and go on back to work," he says, "and when you leave this office," he says, "don't discuss it with anybody. Let's just consider the matter closed and leave it at that. I said, "Okay," and I walked out of that office and went back to work. There is some variance in Townsend 's and Boes' versions of this discussion in that neither mentions Townsend advising Garcia not to discuss the matter with anyone and Boes denies there was any reference to Maldonado while he was present. Also Townsend denied that Garcia used any adjectives although he indicated Garcia was unhappy about the policy. Boes, however, testified: A. Yeah. I think Mr. Townsend made the state- ment, you know, "This is Company policy, you know, and I'm sure it won't take and hurt if we do it this way." And, then, Ed snapped back, and he says, "I think your Company policy stinks; but if I want to work here, I guess I have to abide by it, but I don't like it." On February 18, Berkeley Smith , Respondent's business manager and treasurer, testified Boes told him to prepare termination checks for Garcia and Maldonado and to return the $100 deduction to each of them for their accidents. Smith said that Boes told him Garcia was being terminated because: A. There again I can't repeat the conversation. What I remember is that Mr. Garcia didn't like the idea of the $100 being withheld. He was objecting to it very 16 Maldonado could not be located and was not called as a witness that while this was proper for an outside customer, it was not permissible in 17 There is also testimony that Garcia when he did lube work on his own the case of an employee and his own car In any case, although this was car would at times charge 50 cents for the labor work which was the same as raised as an issue, it does not appear to be a predicate for the termination he would charge if it was an outside customer Respondent's position was 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strenuously. And it was better to give him back the $ 100 and terminate him. Smith also learned Maldonado was being terminated by Boes because: A. Manuel had gone to the Labor Commissioner, and so regardless of whether we won or lost at the Labor Board, we had a dissatisfied employee; so we gave him back the money and terminated him. Boes testified: Q. Now, when you made that decision with regard to Manuel, why did you make the decision to give him back his $100? A. Because he was just as unhappy as Ed Garcia was; so I decided, well, if we're going to do it to one, we might as well do it to both of them. Q. Did you know Manuel had been to the State labor department? A. No, I did not. About 5 :30 that day Boes asked Garcia to come in his office. He then asked Garcia how things were going. Garcia said "Fine." According to Garcia , Boes then asked, "What's going on around here?" Garcia said he didn't know what Boes meant . Boes repeated, "What's going on around here?" And when Garcia said he didn't know Boes suddenly told Garcia he was fired, handed him his termination check, and told him the check included the $100 previously deducted. According to Garcia, Boes told him he was terminated because "I didn't like the comment you said in Bob Townsend's office about not liking the company rule." Garcia told Boes he thought from the conversation with Townsend that the matter of deductions had been resolved and asked who had decided to terminate him. Boes replied that he alone made the decision . Garcia expressed surprise at being terminated after 4 years' service . With Warren present, Boes told him to come back the next day to turn in his uniform , and he didn't want to catch him on the premises again. Boes testified that , although he had been at the meeting the day before with Townsend, he didn't like the statement made by Garcia. The following day Garcia acted uncivilly, tossed repair orders around, and generally indicated a bad attitude toward work and this caused Boes to get "madder" and brought about Garcia's termination. Garcia testified in rebuttal that he had not manifested such an attitude but had been in a pretty good humor on that day. As previously set forth, Boes also denied that he knew Maldonado had gone to the "State Labor Department" before he terminated Maldonado . This apparently conflicts with Smith's testimony that Boes had terminated Maldona- do because of his going to the "labor commissioner." Boes denied asking Garcia "What's going on around here?" In view of inconsistencies between Boes and Smith as well as Boes and Godfrey , Garcia, Larson, Aicher, et al., and the probabilities of various situations including that of Chamberlin and the instant termination following Town- send's apparent settlement of the matter on the preceding day, the 17th, and my appraisal of Garcia, I am crediting Garcia as to this statement being made. Respondent also attempted to establish that part of the reason for Garcia's termination was that he had "too many `comebacks'." However, it is evident that Respondent expected some comebacks, that Boes admittedly considered Garcia to be a good lube man but claimed that toward the last Garcia's attitude was the problem . Boes testified: Q. Now, with regard to Mr . Garcia's performance, there is no doubt in your mind that he was a pretty- good lube man when he was working for Townsend. Isn't that correct? A. Oh, he's a good lube man, sure, as long as he can keep his attitude in line, you know. Q. His attitude is really the only problem, as far as he went ; right? A. Towards the last, yes. Other employees had numerous comebacks, including Hutchison and Wood. Garcia without contradiction testified as to only having five or six during the year before his termination which was much less than some others. There may be some question as to how active Garcia was for the Union. It is clear that such union activity was known to Respondent which was inquiring about it on February 17, and from testimony of Chamberlin and Garcia that Garcia was involved in discussions and activity leading to and relating to the Union . I have found that Respondent was aware and had knowledge that union activities were going on and who was involved . Respon- dent also was obviously annoyed about protests of both Garcia and Maldonado of the $100 deductible policy. Townsend had evidently settled the matter as to Garcia on the 17th. Yet Boes had terminated Garcia on the 18th. Something led to this changed position. Among the possibilities are that ( 1) Garcia manifested such a bad reaction on the 18th that Boes felt his only choice was to eliminate him; (2) Boes may simply act precipitously; and (3) Boes didn't like either the union activity of Garcia or the joint activity of Garcia and Maldonado in protest of the $100 deductible policy. What occurred on February 17 and 18 could make union activity a factor or the factor . First, there was such interrogation of Aicher on February 17. Second , there was the union meeting of February 18 and prior activities incident thereto which Warren, Davis, and Townsend indicated they had been and were aware of. With respect to the action against both Garcia and Maldonado, there is the testimony of Smith that Boes said he eliminated Maldona- do because he went to the labor commissioner . Boes denied he knew about Maldonado going to the commissioner but testified that Maldonado was as unhappy as Garcia so they might as well terminate both. This is indicative of a response to a point protest . There is further the matter of credibility as to Garcia's attitude on the 18th . Although I am not convinced that Garcia had completely forgotten the matter, I doubt whether he would have indicated or manifested the attitude that Boes claimed on the 18th and find that he did not. I am, therefore , crediting Garcia as to his conduct on the 18th. When this is coupled with Boes' expressed attitude to Smith about Maldonado, with Townsend's apparent settlement of the matter on the 17th, and with Respondent's awareness of and opposition to union activity, I conclude that Garcia's termination resulted from either or both the point protests of Garcia and Maldonado or Respondent's opposition to the pending union activity which Garcia was a party to, including the TOWNSEND LINCOLN-MERCURY impending union meeting of that day, the 18th. The latter would explain the sequence commencing with the question to Garcia by Boes, "What's going on around here?" followed by Garcia's saying he didn't know and then Garcia's termination. I am, accordingly, finding that by terminating Garcia, Respondent violated Section 8(a)(1) and (3) of the Act. 5. The alleged discriminatory discharge of Fred Aicher On January 12, 1972, Fred Aicher was employed by Respondent. Aicher evidently washed and delivered cars and performed miscellaneous jobs. As previously set forth, Aicher credibly testified concerning interrogation as to union activities by Warren about February 17, Warren's statement that he knew Chamberlin was the leader, and Warren's threat to Aicher that he better not attend a union meeting. On February 18, as previously found, Boes asked Aicher what he knew about the Union. On February 19, Davis inquired of Aicher about the Union and how the meeting had gone the night before. February 22, Warren had again questioned Aicher about a conversation with Chamberlin as to whether it concerned the Union. February 24, about 2 o'clock, Aicher quit his employ- ment with Respondent. He told Boes he was quitting, said he had an argument with Davis and was "tired" of Davis "climbing" on his back, and also told Boes he was "tired of ... watching John Morgan playing hide and go seek" and that he "was tired of working on Saturdays." According to Aicher, Boes said he would raise his pay to $2 an hour. Boes' account is generally consistent except that while Boes testified he offered Aicher a raise if Aicher would stay, he did not specify an amount. In the afternoon Aicher telephoned Boes to ask if his job had been filled. Boes told him to come in and talk about it which Aicher did. Aicher again told Boes about Davis' and Morgan's harassment. According to Aicher, Boes asked if he wanted his job back and told him he could have a raise to $2 an hour. Aicher said he accepted the offer to resume work the next day. Boes testified he gave Aicher his job back but denied offering him a raise in rehiring him, although admitting that at some point that day he had offered Aicher a raise to induce him to stay on the job. As set forth, Aicher testified that 3 or 4 days after February 19, Davis had approached Aicher at the wash rack and told Aicher he knew that Chamberlin, Aicher, and "a few others had attended the union meeting," that Chamberlin had been the leader in organizing, and that the Union would take away his money and give him bad working hours. On March 3, Davis told Aicher that Boes wanted the crew to come in on the weekend to paint the mechanics' stalls, that he, Davis, would be in charge of the paint detail and Aicher had to come in and paint. According to Aicher, he protested that his. lung condition would not permit him to work with paint and fumes, but that Davis told him not to bother to report the next Monday if he missed the paint detail. On that Saturday, Aicher and four others painted 18 The application form under "Condition of Health" states "EXL." Aicher testified he did not fill in condition of health and didn't know if the "EXL" was in his writing. However, Aicher admitted that he filled in a 81 and cleaned under Davis' directions. On Sunday, Aicher slipped and fell while working in the paint detail, injuring his back. Also, according to Aicher, his lungs were inflamed from the painting. The next day, Aicher went to Boes and asked to be allowed to leave work to go to Veteran's Hospital for treatment for his lungs and back. Boes told Aicher to fill out an accident form before he left the dealership. A secretary then typed up the necessary insurance form and Aicher left for the hospital. There is no mention of a lung condition on the accident report, nor is there any on Aicher's application for employment. I s Boes, Morgan, and Davis all deny that Aicher ever told them he had a lung condition that prevented him from working around paint or gasoline fumes, etc. Aicher testified on direct examination that when he was hired, he told Morgan and Boes that he could not work around paint because of his lungs and that he told Davis on March 3 when Davis told him to come in and paint that weekend that he had such a condition. On cross-examination, Aicher testified: Q. (By Mr. Lerten) When you were hired, did you tell anyone at Townsend Lincoln-Mercury gasoline fumes hurt your lungs? A. I did not find out I had to use it till afterwards. Q. You found out you had to use it as soon as you started your job of detailing cars, didn't you? A. I didn't use it until some time after I was working. Aicher further testified he thereafter complained about working with gasoline to employee Alvarado and to Davis, who, according to Aicher, said he would try to work something out. Aicher also testified: Q. And you continued to use the gasoline to clean the cars? A. Yes, sir. I wanted the job. In connection with the accident form, Aicher said he worked half a day on Monday, March 6, and left at 1 after notifying Ken Boes. Aicher then testified: A. I told him that the painting had hurt my lungs and my back was hurting. Sunday I had slipped on my back there while painting. And I told him I wanted to go to the doctors and find out what's wrong. And he said, "Well, you have to fill out an accident report." So he sent me into the main office there, and I filled it out. The secretary either signed it or she stamped it or something; I don't recall what she did. And I took it back to Ken Boes, and he excused me for the day. From the foregoing it is evident and I find that at the time of employment Aicher did not indicate that he had a lung condition that would be affected by gasoline fumes. The secretary, Anita Miller, testified that she filled out the accident form from information provided and did not change it in any way. She also testified Aicher watched her type it. Miss Miller testified that in addition to what was on the form, Aicher said he was going to quit and wanted his paycheck. She also testified: Q. What else did he say: A. And that-Well, he made it very clear that he series of "No's" after specific defects and a "none" after other defects and that at no point in the application had he indicated a lung condition; i.e., bronchial asthma. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not like it and did not like Mr. Davis. He inferred he did not like Mr. Boes or the service department or Townsend Lincoln-Mercury. He made it very clear he was unhappy and was going to quit. Q. Did he mention his lungs to you or a lung condition? A. I believe when I asked him why he couldn't paint, he said something about the fact it got in his lungs. But I'm not a doctor; I'm not a medical expert, and I wouldn't know what that meant, anyway. First, I note Davis was aware there was gasoline around the auto dealership but explained he wasn't concerned about it because he didn't expect to work near it. While this may be, it would appear to be unavoidable and also that there would be a body shop which he might at times have contact with. I have previously not credited Archer as to his claim that he informed Respondent of a lung condition or bronchial asthma when hired. I am further crediting secretary Anita Miller, whom I found to be a highly credible witness, that she typed the form on the basis of what she was told and that Aicher did not refer to a lung condition in connection therewith. In certain instances where Aicher was personally and directly involved and affected, I have some reservation concerning his testimony and in such circumstances concluded that Archer may have been inclined to see matters as he wanted them to be. The same appears to be true with the discussion referred to subsequently as to what occurred at the time of his ultimate termination. At the Veterans' Hospital, according to Aicher, he was told by the doctor that further painting could cause him serious injury. He did not work the next day but returned on Wednesday, March 8. On that day, around the noon hour, Archer encountered Davis near the (car) rental office. Davis asked him what he was doing. According to Archer, he replied it was his lunch hour and Davis said "fine" and walked away. About 15 minutes later, according to Archer, he again encountered Davis, who again asked what he was doing and Aicher said he was still out to lunch. Davis then told Aicher that he had forgotten to punch out for lunch and had also written in his time instead of punching the timeclock. Davis took Archer to the timeclock and punched the card to show him how to operate the clock. Archer offered to allow Respondent to deduct any money loss due to his failure to punch in and out properly. Davis left and Aicher took off his shoes to remove a rock. When Davis returned Aicher still had his shoe off. Davis said "Let's go." Archer said "Just a minute." Davis told him to come on. When Aicher didn't move Davis took his timecard out of the rack and told Archer he had "quit." Aicher said he would not quit, that Davis would have to terminate him. Davis went to Morgan's office and Archer followed. Morgan, at Davis' request, told Aicher what his lunch schedule was. Davis and Aicher walked to the dispatch office to talk to Boes. Davis told Boes about the argument he had with Archer. Boes at this point ignored them and said nothing. According to Aicher, Davis and he went back to the timeclock where they argued again and Davis finally told Archer again "you've quit." Aicher said he wouldn't quit. Davis left and when he returned he told Archer he was terminated. According to Archer he asked why he was terminated and Davis told him it was because of his asthma and his refusal to work with gasoline, walking around and not working, and his "union activi- ties." Boes' and Davis' versions differ somewhat from Aicher's as to the circumstances and the conversation. Davis and Boes testified that Boes terminated him. Davis also denied that he told Archer he was fired. Boes and Davis both denied any knowledge of Aicher's union activities at the time of discharge. The General Counsel relies on Aicher's testimony as to what he was told at the time of termination; also, that Respondent took the position in a letter from counsel and its answer that Aicher "quit" on March 8 and then at the hearing admitted Archer did not in fact quit, but was terminated. The General Counsel argues that this shift of position should be considered in determining whether Archer was unlawfully terminated. However, Respondent at one point had reason to believe that Archer quit. According to Davis' version, which I am crediting, Aicher was, in essence, standing around and not working. Davis testified with respect to Aicher's discharge that he saw Aicher hadn't started to work way past his lunch period and asked him what he was doing. Aicher replied he had been up to see if any more cars needed detailing. Davis told Aicher he was working through the dispatcher to which Archer replied he was still on his lunch hour. Davis then testified: And I informed him that his lunch period had been stretched out quite a ways, and there was a certain amount of work which had to be done, which, in turn, was still sitting on the wash rack and had not been finished-or had not been started. And he informed me that he didn't know whether he was going to go back to work or not. So at this time I told him, "Maybe we'd better make up our mind," because it was getting kind of late in the day, and we had to have a certain amount of work out. And he still insisted that he didn't know if he was going to work or not. So I asked him if he would accompany me, to go with me up to Mr. Morgan's office. Morgan, in turn, referred them to Boes. Davis then testified: I informed Kenny that I believe we had kind of a problem. And he asked what the problem was. And I told him Mr. Archer didn't know if he wanted to go to work or not. And Mr. Boes asked him, in turn, what his problem was. And he just said-he stated that he couldn't make up his mind whether he wanted to go to work or not. So Mr. Boes told me to take his timecard in to Mr. Smith's office and have him figure his time. And this I did. It appears that on March 8 Archer was standing around and wasn't working and gave every indication that he didn't know what he wanted to do and whether he was going to do anything. It also appears that Respondent had good reason to believe that Aicher had, in effect, quit or indicated he was going to quit at the time Respondent wrote the letter on March 8, and this is bolstered by the TOWNSEND LINCOLN-MERCURY fact that on February 24 he had quit. It is also bolstered by the painting job and the dispute over his working then. I also note Anita Miller's credited testimony, supra, that at the time of the accident report, Aicher said he was going to quit. Accordingly, I do not consider the alleged discrepan- cy between Respondent counsel's letter and Boes' testimo- ny as to termination versus "quit" to be of major significance. As further found, I have not credited Aicher's testimony as to advising Respondent of his lung condition when hired nor with respect to the preparation and completion of the accident report. Since I have credited Aicher as to conversations with Warren, Townsend, and Boes relating to the Union, it would appear clear that Respondent as of February 24 had knowledge of whatever activities Aicher may or may not have engaged in which evidently were not too extensive other than perhaps attending a meeting, and that Respon- dent evidently was not concerned at that time as to Aicher's union activities. This is manifested by Boes' endeavors to have him return to work after he quit on February 24. In the light of this, and since there does not appear to have been any intervening union activity by Aicher, it seems most unlikely that Respondent, on March 8, terminated Aicher for any union activities. For this reason, among others, including my analysis of all the testimony, I am not crediting Aicher's testimony that Davis told him that among the reasons for termination were his "union activities." As I have previously indicated, I believe that where Aicher's immediate self-interest was directly involved, Aicher tended to color his testimony accordingly. Furthermore, it is evident that Aicher was not manifesting either an attitude toward nor interest in working at the time he was terminated. I accordingly believe that his termination was for a good cause and not violative of the Act, and shall recommend the complaint be dismissed as to Aicher. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent discriminated against Henry (Pete) Chamberlin and Edward Garcia by discharg- ing them, it will be recommended that Respondent offer them immediate and full reinstatement to their formerjobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights or privileges. It will also be recommended that Respondent make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by 20 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, recommendations and recommended Order herein shall, as 83 payment to them of a sum of money equal to the amount they normally would have earned as wages from February 22, 1972, in the case of Chamberlin, and from February 18, 1972, in the case of Garcia, to the date of Respondent's offers of reinstatement to them, less their respective net earnings during said periods. Loss of earnings shall be computed in accordance with the formula prescribed in F.W. Woolworth Company, 90 NLRB 289, and interest at the rate of 6 percent per annum shall be added to the backpay computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make available to the Board upon request payroll and other records to facilitate computation of backpay. Having found that Respondent engaged in and is engaging `in certain other unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Because of the nature and extent of the unfair labor practices engaged in by Respondent, I deem it necessary to recommend that Respondent cease and desist from in any other manner infringing on the rights of employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Henry (Pete) Chamberlin and Edward Garcia to discourage membership in a labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interrogating employees concerning union mem- bership and activities, by giving the impression of surveillance of union activities, and by threatening employ- ees for engaging in union activities as found above, Respondent has violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not violated the Act by terminating Frederick Aicher. RECOMMENDED ORDER20 Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record in the case, it is hereby recommended that Respondent, J. R. Town- send Lincoln-Mercury, shall: 1. Cease and desist from: 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. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Discouraging membership in International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization of its employees by discrimi- nating in regard to their hire or tenure of employment, or any term or condition of employment. (b) Coercively interrogating employees concerning union membership or activities. (c) Creating the impression of surveillance of union organization, activities, or meetings. (d) Threatening individual or group reprisals or discrimi- nation because of union membership, organization, or activities. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the Union, or any other organization, to bargain collective- ly through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer Henry (Pete) Chamberlin and Edward Garcia immediate and full reinstatement to their former employ- ment or, if such no longer exists, to a substantially 21 In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " equivalent position, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have sustained as a result of the discrimination against them in the manner proscribed in section V of this decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful to an analysis of the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business located in San Diego, California, copies of the attached notice marked "Appen- dix." Copies of said notice, to be furnished by the Regional Director for Region 21, shall, after being duly signed by an authorized representative of Respondent, 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.21 (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith.22 IT IS FURTHER RECOMMENDED that in all other respects the complaint be dismissed. 22 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 21, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith "