Leon Ames Ford

816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leon Ames Ford and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 31-CA-3045 April 2, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On October 6, 1972, Administrative Law Judge E. Don Wilson issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, Charging Party filed exceptions and a supporting brief and Respondent filed 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.' 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 the complaint herein be, and hereby is, dismissed in its entirety. I We do not believe the record warrants reversal of his credibility findings, but we do not adopt his gratuitous comments with respect to the delay of the Union in filing a charge herein, the failure of the General Counsel to obtain an affidavit from Harley Hasel during the investigation, the reasons for the Union's not filing objections to the election, and the manner of interviewing witnesses by the General Counsel DECISION STATEMENT OF THE CASE E. DON WILSON, Administrative Law Judge: The original charge in this case was filed by International Association of Machinists and Aerospace Workers, AFL-CIO, herein the Union , on April 18, 1972. It was subsequently amended on April 26, 1972, and on June 2, 1972 Based thereon, the General Counsel of the National Labor Relations Board, herein the Board, issued a complaint and notice of hearing on June 16, 1972, alleging that Leon Ames Ford, herein Respondent , by various acts and conduct, violated Section 8(a)(3) and ( 1) of the I Hereinafter all dates refer to 1972, unless otherwise specified 2 As amended, shortly before the close of this hearing National Labor Relations Act, herein the Act. Respondent duly answered, denying it had violated the Act. Pursuant to due notice a hearing in this matter was held before me in Los Angeles, California, on August 10, 1972. The parties fully participated. General Counsel and Respondent filed briefs on September 14, 1972. They have been fully considered. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS At all material times, Respondent has been a California corporation, maintaining its principal place of business in Redondo Beach, California, where it has been engaged in the retail sale and service of automobiles. During the past 12 months, it derived gross revenues in excess of $500,000 and it purchased and received goods valued in excess of $50,000 directly from suppliers in States other than California. At all times material, it has been engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION At all times material, the Union has been a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues include the following : ( 1) Did Respondent, on March 22, 1972, 1 discharge Michael Pavich, because he engaged in Union or other protected concerted activities; (2) did Respondent, through its agent, Ronald Courser, about March 16, promise economic benefits and other benefits to employees if they refrained from becoming or remaining members of the Union, or otherwise assisting or supporting the Union and; (3 ) did Respondent through its vice president, Frederick Hitchcock, about May 2, threaten employees 2 with economic reprisals if the Union won the forthcoming election? B. Courser and His Alleged Illegal Promises to Pavich and Harley Hasel, On or About March 16 A union meeting was held about March 13. Beginning then, and for some time thereafter, various of Respon- dent's employees signed authorization cards. Pavich distributed a few in the shop. About a week later, around 10 a.m., Courser, Pavich, and Hasel had a conversation in the shop, apparently during a coffeebreak. Courier had been service manager since early in January. I credit Courter's3 testimony that as service manager at other dealerships, he had taken mechanics on fishing trips on various occasions. I further credit his testimony that in the conversation above referred to, no one made any 1 His demeanor impressed me most favorably 202 NLRB No. 110 LEON AMES FORD 817 mention of a union or unions. Courter did mention that at some time he and the mechanics might go on a boat trip. He did not tell them that if the Union came in they would lose money He knew nothing about the Union at the time of the conversation. The testimony of Pavich and Hasel as to what was said at this meeting was not, at all, in harmony . In some material instances, they flatly contradicted each other. According to Pavich, Courter started the conversation by saying he was very disappointed with the mechanics for not bringing their problems to him "rather than going to the Union." Allegedly, Pavich replied the problems had existed since Courter began working. Again, allegedly, Courter replied he'd like to be friends with the mechanics and would be happy to take them out on a 3-day weekend for fishing on Pavich's boat, Courter buying the gas and beer if they could work it out between the mechanics "rather than us go to the union." Allegedly, Pavich and Hasel continued to complain that everything had been getting worse. They said the free beer would be great. Courter allegedly told them he'd try to get their vacation back to where it had been. Allegedly, according to Pavich, Courter stated that if the Union came in, the employees would lose money, they would have to pay union dues, and they would be on an hourly rate with a guarantee, and they would not be allowed to work as many hours. Harley Hasel, an exemployee of Respondent, testified about this conversation of March 16.4 Many of the statements imputed to Courter by Pavich were not mentioned by Hasel in his testimony. He testified that in this conversation, Courter reminded him his stall was getting dirty. When asked to state what was said by the parties, Hasel testified "It's been a while," indicating to me that his recollection was not strong and clear . He testified Courter, Pavich, and he discussed things which should be repaired or fixed, dirty stalls or areas and things the employees needed Courser allegedly said things couldn't be repaired until the people in the shop had taken care of their union problems. Courter allegedly said he would be more than happy to be friends with them, adding that they could operate better if they were friends . He then said, "After we settled these little Union differences then he'd be more than happy to sponsor a fishing trip in the shop." Allegedly he added he was very displeased that they had gone to the Union, "and we hadn't been able to get anything done the other way." Trial Examiner's Exhibit 2 contains what Hasel swore was the truth.5 In it, Hasel discusses the March 16 incident. He stated in the exhibit that Courter said "he couldn't resolve problems til the Union was finished with and that he was told not to talk to us about any of the problems." In the memo adopted by Hasel, Courter is also quoted as saying he would like to sponsor a fishing trip for the men. 4 I find it strange that General Counsel never obtained an affidavit from Hasel He came from Colorado a few days before the hearing, to testify He previously had been interviewed through long distance phone call, by a field examiner of Region 31 , who reduced the interview to writing It was shown to Hasel shortly before he testified and he then "adopted" it It was dated June 13 Why he was not personally interviewed by a Board agent from Denver, or elsewhere, and an affidavit obtained together with an estimate of the credibility of his story is unknown to me , and contrary to procedure of General Counsel , as I have known it since 1948 I note that the complaint herein issued 3 days after this phone conversation , when no one had The memo continues , "Pavich said he was working on his boat and Courter said he'd like to sponsor a trip for the men when the Union thing was resolved. "6 (Emphasis added.) The memo quotes Hasel as saying he wasn't sure what was said after that. After General Counsel rested, I recalled Hasel as a witness He was asked directly if in this conversation, Courter said, "he'd buy the gas for Pavich's boat if all the mechanics wanted to go fishing ."7 He answered only that Courter "said something about fishing." He added, "I was busy getting ready to go back to work," indicating to me that he was not paying much attention to anything Courter was saying I then asked him to answer "Yes or No" whether Courter told him and Pavich that he'd buy gas for Pavich's boat if all the mechanics wanted to go fishing. He didn't answer "Yes or No" but rather, "I believe so, yes," thereby indicating some uncertainty to me . It appears from Hasel's testimony at this point, that he was not too much of a participant, either as speaker or hearer , in this March 16 conversation . I have noted his earlier somewhat detailed narration of what was said in the conversation. However, later he testified, "For the biggest part of the conversation I was busy walking back and forth between my tool box getting ready to go back to work." There is nothing in Pavich's testimony to suggest that Hasel was not a full participant in the March 16 conversation . The record reflects that mostly it was not what Pavich said, but what "we" said to Courter, according to Pavich, obviously referring to Hasel and himself. There is nothing in Hasel's testimony when called by General Counsel to suggest that Hasel did not hear and participate fully and actively in the entire conversation . It was only when I called him to testify about the conversation , that he attempted to describe himself as one who was mostly there, around the fringes I asked Hasel repeatedly if Courter had not told him and Pavich that they "should not vote the Union in." His first answer was that he didn't "remember." Then he stated he couldn't say "Yes or No " He then testified that he didn't recall Courter ever making such a statement . He then agreed that Pavich, Courter, and he were "together." He was within 10 feet of Pavich and Courter , at all times. Having noted Hasel's refusal to testify that in this conversation, Courter told Pavich or Hasel or both that they should "not vote the Union in," I direct my attention to the last sentence of the last paragraph of page 1 of the Trial Examiner's Exhibit 1. This was a typed statement given by Pavich to a union representative shortly after his discharge, and before the filing of the original charge herein. In this paragraph, Pavich devoted but two sentences to this March 16 conversation . The whole statement by Pavich therein as to the March 16 conversation reads, "Ron Corder [sic ] spoke to Harley Hosel [sic ] and myself a interviewed him face to face Of the approximately 25 employees in the bargaining unit, only Pavich and Hasel testified in support of any alleged unfair labor practices 5 Hasel was in Pavich's house when Counsel for General Counsel interviewed Pavich 2 nights before the hearing He "listened quite a bit" 6 Note there was nothing said by Courser that such trip would in any way depend upon the outcome of the election 7 He was present when Pavich testified The quotation is from TX Exh 1. Pavich' statement to a union representative 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week after the meeting and said that he would buy the gas to my boat if all the mechanics wanted to go fishing. He had been talking to us that we should not vote the Union in." (Emphasis supplied.) In the Trial Examiner's Exhibit 2, adopted by Hasel as true, about 2 days before the hearing herein, Hasel quotes Courter as saying to him and Pavich, "he'd like to sponsor a trip for the men when the union thing was resolved." (Emphasis supplied.) Hasel adopted this exhibit as true when, or about when, he did a lot of "listening" to counsel for General Counsel interviewing Pavich in preparation for this hearing.8 At this hearing, Pavich swore Courter told them he'd want to sponsor such a trip, "before the union election." He denied that Courter told them "he'd like to sponsor a trip for the men when the union thing was resolved " I find the respective testimonies of Pavich and Hasel to be in such fundamental and material conflict that I can credit them neither when their testimonies are considered in combination nor independently. Since there are other alleged violations to be considered by me herein, I shall not now comment on their respective demeanors. I here find and conclude that General Counsel has not proved paragraph 8(a) of the complaint by a preponder- ance of the probative and substantial evidence. I cannot ignore Hasel's prior statement that Courter told Pavich and him that he couldn't resolve problems until "the Union was finished with" and that he was told not to talk to the men about any of the problems-.9 Compare this with Pavich's recital of a variety of problems Courter allegedly told them he'd try to have straightened out, vacations, mops, etc. Pavich's short paragraph in the Trial Examiner's Exhibit 1 was certainly greatly magnified and expanded in his testimony, given long after he gave his statement to the Union.1° I have noted that in such statement all that Courter was supposed to have said about fishing was that Courter said to Hasel and Pavich he'd buy gas for Pavich's boat if all the mechanics wanted to go fishing." There is obviously nothing violative of the Act in such statement by Courter. Pavich's only further statement that "[Courter] had been talking to us that we should not vote the Union in," was substantially denied by Hasel Such testimonies do not permit me to find that General Counsel has proved this part of his case by a preponderance of the probative and substantial evidence I do not credit the testimony of either Pavich or Hasel as to the March 16 conversation, except to the extent that such testimony is corroborated by Courter. C. Hitchcock's Alleged Unlawful Threat to Hasel on May 2 In paragraph 8(b) of the complaint , it was alleged, "On or about May 2, 1972, Respondent, through Frederick 8 In years past it was not customary for agents of General Counsel to interview prospective witnesses in groups 9 Hasel confirmed this in his testimony 10 It is probably only speculation, but I find it strange indeed that the Union waited weeks after it obtained Pavich's statement before it filed a charge and that , though losing the election , it filed no exceptions, even ones involving Pavich i i Nothing in that sentence about a Union 12 Of course, there can be typographical errors, or inadvertent slips 11 The election was May 17 Hitchcock, at its place of business, threatened an employee with economic reprisals if the Union won the election." (Emphasis supplied.) The record makes clear that the employee referred to therein was Hasel. I would not demean General Counsel or the Board's Region 31, by finding they do not know how to state exactly what they mean when a complaint is issued .12 I am satisfied that on June 16, General Counsel intended to prove just what he alleged in paragraph 8(b). It is a simple and clear statement of facts. If General Counsel had intended to prove that Hitchcock threatened an employee (Hasel) that other employees or employees in general would suffer economic reprisals if the Union won the election, he would so have alleged. He did not. I know he was not trying to mislead Respondent as to the facts involved in paragraph 8(b). Respondent had every right to believe that General Counsel meant just what he alleged in paragraph 8(b). As I noted, Hasel was the employee involved in the conversation with Hitchcock on May 2. He testified about events with Courter on May 1, and a conversation he had with Hitchcock, in Courter's presence, on May 2, about his demand for more pay or a better paying job and his announced determination to quit in a week if he didn't get what he wanted.13 I asked Hasel pointedly and directly whether in this conversation Hitchcock threatened him with economic reprisals if the Union won the election 14 Hasel's simple answer was, "He didn't threaten me because I had already made up my mind I was leaving." He again denied that Hitchcock threatened him with any economic reprisal if the Union won the election.15 He was the employee allegedly threatened with economic reprisals but he denied it flatly. At the time Hitchcock allegedly said he'd "flood the shop," Hasel had already made up his mind he was quitting and had so advised Hitchcock, in the presence of Courter. The fact is that he absolutely and unequivocally denied the allegations of paragraph 8(b). It was with the record in this condition, an absolute denial of the facts alleged in paragraph 8(b), by Hasel, the individual involved, that General Counsel rested. Counsel for General Counsel made no effort of any kind to move to amend the facts as alleged in paragraph 8(b).I6 It was I and not Respondent, who went into the questions with Hitchcock about his allegedly loading up the shop with employees, if the Union won the election, so that employees would leave, etc. Hitchcock denied it, but it was not a matter Respondent considered in issue, as raised by the pleadings At least, Respondent's counsel did not initiate this denial or litigation , as part of his case. In answer to my questions along this line there were firm, unequivocal denials by Hitchcock.i7 14 As the complaint clearly alleged 15 He had testified that Hitchcock had told him , after he said he was quitting, not to worry about the Union because if the Union came in, "they'd hire so many mechanics that other mechanics couldn't make any money, and they'd just flood the shop" is Tr p 104 Bear in mind that Hasel was not denying conclusions of law, butfacts as alleged 17 Which I completely credit I here note I credit Courser's corroborating denials More on Hitchcock's alleged threats of May 2, infra LEON AMES FORD I, having opened this matter up during Respondent's case, Respondent's counsel queried Courter about it.18 It was not until Respondent had almost completely finished his case in answer to that of General Counsel that I inferred, at least, to Counsel for General Counsel, that there might be a question as to whether he had proved paragraph 8(b) of the complaint.i9 It was only then that Counsel for General Counsel moved to amend paragraph 8(b) of the complaint . Respondent objected to such motion "at this late stage of the game." General Counsel wanted to amend the complaint to conform to the proof. He should have known what his proof would be before this case ever started. If paragraph 8(b) didn't properly allege the facts Respondent was supposed to contest, it should have been amended prior to the hearing so that Respondent would know what General Counsel alleged the facts actually were. The business about flooding the place with employ- ees if the Union were to win the election was far different from threatening Hasel with "economic reprisals," because Hasel made it abundantly clear to Hitchcock and Courter that if he didn't get much improved working conditions, he was "quitting" well before the election. I repeat, I won't demean General Counsel by even considering that his responsible officers cannot simply and accurately state facts in a complaint so as to apprise a Respondent what he is charged with. General Counsel's officers could not have drafted paragraph 8(b) so simply and directly as they did and yet have meant to apprise Respondent that on May 2, Hitchcock threatened Hasel that if the Union won the election other employees orJust employees other than Hasel, would receive economic reprisals If this is what had been meant this is what would have been alleged. Such officers can draft simple declarative sentences. It was not until the case was almost closed, that counsel for General Counsel moved to amend paragraph 8(b) so that it would read that Hitchcock "Threatened employees that they would receive economic reprisals if the Union won the election." Note that by this time, counsel for Respondent had concluded his direct examination of his last witness. I granted the motion to amend, believing that, in any event, the matter had been fully litigated . I was not then conscious, as I now am, that it was not Respondent who chose originally to litigate what had not originally or even then been pleaded, but 1. I now am not free from doubt that I properly exercised my discretion in permitting so grossly late an amendment to the complaint . Certainly after Hasel's in haec verba denial of every "fact" alleged in paragraph 8(b) and after all Hasel 's testimony, counsel for General Counsel might properly then have moved to amend paragraph 8(b) of the complaint. General Counsel, believ- ing the transcript may be in error,20 moves in his brief to amend paragraph 8(b) so as to read that Respondent threatened an employee that employees would receive economic reprisals if the Union won the election . General Counsel had the ability so to amend before the hearing, or at least after Hasel's testimony. I consider this to be merely a refinement of the motion granted at the hearing, a 1H t, as judge, placed it in litigation In retrospect , I think I was in error 19 Tr p 199 20 1 find it is not 21 Before it was so lately amended 22 Respondent had ignored it entirely when questioning Hitchcock 819 clarification. It is accepted by me as such . I have no doubt that Respondent, as well as I, understood this to be the substance of the original motion . This does not change the fact that I am not free from doubt as to whether I abused my discretion in granting the so late motion, in the circumstances of this case . If the motion should not have been granted then , especially in light of Hasel's unambigu- ous testimony, counsel for General Counsel failed to prove paragraph 8(b) of the complamt.2i The fact is that whether because of my error in opening up the issue22 when Respondent was presenting its case, or not, paragraph 8(b), as amended , was fully litigated and I shall make findings and conclusions on the merits of the amended paragraph 8(b). My findings here are based upon the credited testimonies of Courter and Hitchcock as to what was said at the May 2 meeting, in part corroborated by Hasel. I find part of Hasel's testimony as to May 2 to be absurd, made out of whole cloth and unworthy of any credit, particularly the part referring to paragraph 8(b) as amended. On May 1, Hasel and Courser visited a cocktail lounge together. Hasel testified he had already given Courter a week's notice that he was going to leave the employment of Respondent and Courter did not want him to leave.23 While Courter told him he really didn't want Hasel to leave, Hasel testified he had "pretty well made up [his] mind that [he] was going to go." Hasel testified that in the lounge, he stated he was displeased with the shop and the fact that he couldn't receive more money and he was ready to leave. He stated how much more money he would have to receive for him to stay. Courter allegedly said he'd find out if it were all right with Hitchcock. The next morning Courter gave him no answer. In the afternoon, May 2, Hasel went to Hitchcock 's office. Courter went in with him. They discussed "the fact" that Hasel was leaving, according to Hasel . Hasel testified he told them he wasn't happy with the amount of money he was paid and explained why he thought he should receive more. He asked for another job which would pay more money 24 It was explained to him , according to Hasel, that nothing could be done for him, while the election was pending. Hasel testified he then said , "I told them if the Union was going to come in I wasn't going to stay anyway because I worked in a Union shop and I didn't like it, and Fritz [Hitchcock] told me not to worry about the Union, and if the Union would get in, they'd hire so many mechanics that other mechanics couldn't make any money,25 and they'd dust flood the shop " I completely credit the denials of Hitchcock and Courter that Hitchcock so spoke, in words, or substance. It would be a foolish and absurd statement to make to an admittedly antiunion employee whose continued services were desired by Respondent 26 Such a statement would only make an employee who 23 Hasel ran the so-called diagnostic clinic and earned about $8,000 a year 24 1 find he also asked for a "demonstrator " for his own use 25 Presumably including Hasel , if he stayed 26 The election was 2 weeks away 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wanted to quit because he wasn't making enough money, in his opinion, more determined to quit 27 Hasel would have me believe that Hitchcock told an antiunion employee who wanted more money and whose continued services Respondent desired, that if the Union won the election, some 2 weeks off, that he would make less money. Assuming, arguendo, that Hitchcock were antiunion he would more probably have made an effort, with placating statements or such, to have kept the antiunion Hasel in his employ at least until election day.28 I observed Hitchcock He impressed me as a man of such knowledge and commonsense that he would never make such a statement to any employee, and certainly not to one who was antiunion and thereby assure his departure about a week before the union election.29 .Hasel further testified and made it clear that "probably the first thing" he said in Hitchcock's office was that he was going to quit or leave if he didn't get another job or make more money. Hitchcock told him he was sorry he couldn't give him anotherjob or money. Hasel then made it clear he was going to quit. I do not for a moment credit Hasel's testimony that after Hitchcock knew Hasel was going to quit, and that he was antiunion, and that he wasn't going to be an employee at the time of the upcoming election, Hitchcock then made the further statements about flooding the shop with mechanics if the Union won the election. Such would be pointless. I was very skeptical of this testimony when given, but, having studied the transcript and the briefs, and having fully credited the denials of Courter and Hitchcock, I here find it to be unworthy of any credit. I conclude that General Counsel has failed to establish the truth of paragraph 8(b) of the complaint, as amended, by a preponderance of the probative and substantial evidence. D. The Alleged Unlawful Discharge of Pavich I first note that I find a lack of preponderating probative and substantial evidence that Hitchcock was aware of any union activities of Pavich or any other employee, when Pavich was discharged on the morning of March 22.30 I recognize that Respondent's was a "small shop," but, having fully considered that, I still do not find sufficient evidence of knowledge of such union activity as there may have been. I am aware that the discharge was only 9 days after the union meeting and that Pavich distributed, as well as signed, some union cards.31 I still do not find preponderating probative and substantial evidence of company knowledge of Pavich's comparatively slight union activities. I have already found that I credit neither Pavich nor Hasel at all as to alleged antiunion statements of Courter. I have given no credit to the testimony of Hasel as to alleged antiunion statements of Hitchcock. The demeanors of both Pavich and Hasel impressed me very 27 Obviously, the Union could win 28 Hasel wanted thejob of "tune-up man" which, according to him, paid $22,000 per year 29 Hasel quit about May 9, 8 days before the election SO He was unaware of any union activity in the shop until the afternoon of March 22 11 No evidence of company knowledge unfavorably and I credit the testimony of neither, unless corroborated by otherwise credited testimony. I find no credible evidence that either Courter or Hitchcock ever directly or indirectly mentioned the Union in any adverse way to any employee and particularly to Pavich or Hasel. I recognize that the reason given by Hitchcock for Pavich's discharge, his tardiness, had gone on for months, certainly, at times, at least, with Respondent's approval. This does not prove knowledge of Pavich's union activities. Further, the record is devoid of credible evidence that anyone connected with Respondent had union animus. Pavich worked for Respondent for a few months in 1969. He renewed his employment about July 1971, and it continued until his discharge by Hitchcock on March 22. He was a line mechanic. There is no doubt that the established working hours for mechanics were 8 a.m. until 5 p in. Not long after Pavich began his employment in 1971, Courter's predecessor as service manager, Robert Webb, gave Pavich permission to come to work about 9 a.m. and work later than the other employees, because Pavich had trouble getting a babysitter for his 3-year-old twins who would make it possible for him to get to work at the scheduled 8 a.m. Webb was discharged early in 1972 Courter replaced him on January 5. When Webb gave Pavich this permission, as Webb testified, Pavich assured Webb he was going to straighten out his babysitting problems so that he could come to work on time.32 As the discharged Webb testified, "It's important that everybody be to work on time." Pavich, however, came to work at 9 o'clock or later with considerable regularity. Although I carefully listened to and observed Pavich, and have diligently studied the record, I am still somewhat confused as to the history of the line of babysitters, as given by Pavich He had a series of them, some who made it impossible for him to get to work by 8 a.m., and at least one who made such possible. In January, Courter, having been told by Pavich of his arrangements with Webb, continued them, at least on a "temporary" basis. In fact, for a month before Pavich was fired for arriving late to work, Pavich had "a real good baby sitter." He could have been to work on time, not having a babysitter problem, but did not-he just kept coming to work late even though he had no babysitter problem. So far as the record is concerned, he was unique in being permitted to arrive late because of a babysitting or any other problem. When the time came that he no longer had the problem for which an "exception" was made for him, he never advised anyone in management that there was no reason why he should not perform as the other employees were required to perform. He knew it was company policy to start at 8 a.m.33 He felt no requirement to report to management that his babysitting problem was solved and he could be considered the same as all the other employees. While this might be some indicium of his personality and character, it is not material to the 12 Most of the customers who want their cars repaired "come in early in the morning " 33 If he ever had a doubt about this , and I find he had none, it was certainly eliminated by the February 17 meeting and the typed form of Respondent's requirements made available to all the employees on the same date I find Pavich was not honest when pretending ignorance of this form, Resp Exh 2 LEON AMES FORD discharge issue. He was not discharged because he concealed a change in his status which had occasioned some special privilege for him. I base no findings upon his apparent deceit in this regard. Before March 22, Hitchcock had learned from Courter that Pavich arrived late for work with some regularity. Courter was told by Hitchcock to "handle" the situation. About a month before Pavich was discharged Respondent, through Courter, began to advertise for another line mechanic. I consider it immaterial whether Courter did or did not do a good job in "handling" the situation. The fact is that on March 20, Hitchcock wrote a letter addressed to Pavich, stating he was aware that Pavich had been habitually tardy "since the first of the year."34 Pavich was told in the letter the hours were from 8 to 5. Hitchcock concluded, by writing, "We expect you to conform to these hours " I completely credit Hitchcock's testimony that he prepared, signed, and mailed the letter. Pavich testified he didn't receive it until March 24. Mail service being what I have sometimes observed it to be these days, such testimony may well be true. Obviously he received it in an envelope. Such would most probably have had a date stamp. Pavich didn't know what happened to the envelope. I consider date of the letter's receipt to be unimportant. What is important is that on March 20 Hitchcock, without regard to what Webb or Courter may have tacitly or otherwise have permitted with respect to Pavich's hours of work, expected Pavich to comply with the work hours Respondent had established for all similar employees. Hitchcock thought he was making this abundantly plain to Pavich in his letter.35 Pavich testified he was fired by Hitchcock, in the service area, about 9:00 or 9:15 a.m. Pavich had again come in late.36 Hitchcock saw him and asked him if those were the regular hours he came to work. Pavich testified he told Hitchcock he "had an arrangement" where he could come to work about 9 and work until the job was done.37 This day, he came to work not at 9 but at 9:15. Pavich quoted Hitchcock as saying he and not Courier was Pavich's boss and he had never made such an arrangement. Hitchcock continued, saying the shop hours were 8 to 5 and Pavich had to be there at 8. His testimony as to his variety of babysitting problems was confused and consisted, I find, of much guesswork, if not improvisation. He plainly could have been at work at 8 a.m. for a month before March 22. Pavich continued testifying, after stating Hitchcock told him the hours were 8 to 5. I can't find from his testimony whether he or Hitchcock said he would have to get a new babysitter and work out other arrangements. According to Pavich either he or Hitchcock said, "I am sorry." Pavich testified Hitchcock then turned to walk away and then said to Pavich "just forget it. Pack up your tools and get out. You are fired." Pavich allegedly replied, "Yes sir. Thank you." 38 34 In fact, he was tardy for much longer 31 Pavich was already fully familiar with this company policy as After Courter became service manager, Pavich testified he arrived at work after 9, "a few times " He couldn't "remember" whether Courter had ever found fault with him for such lateness 37 Notably, Pavich did not confess that the basis for any such arrangement had not existed for a month 18 1 find that as of the time of Pavich's discharge, Respondent had no 821 Thus is Pavich's story of his discharge. Hitchcock's did not vary in substance from that of Pavich. He fired Pavich because Pavich came to work late on March 22.39 He had been allowing Courter leeway to straighten out the Pavich problem. It was not until about an hour and a half after Pavich's discharge that Hitchcock first learned anything about Pavich having babysitter problems. He knew only that Pavich had not been coming to work on time, on a consistent basis. Hitchcock knew of no "arrangement" Pavich may have had with either Webb or Courter. On March 22, after the March 20 letter, Hitchcock not only saw Pavich arrive late, about 9:15, but Pavich arrived in a customer's car. Hitchcock soon realized Pavich had not been giving it a road test. However, he soon discovered Pavich had permission to use the car. He asked Pavich if he were just arriving at work and Pavich said, "Yes." Hitchcock told him such could not continue and Pavich should pack his tools and leave. An hour and a half later, Pavich told Hitchcock of an agreement with Webb. Hitchcock replied that Courter had been service manager since January 5 and working hours were 8 to 5. Hitchcock had not previously warned Pavich of discharge, nor had anyone else. I find it in no way unreasonable that Hitchcock, after writing the March 20 letter, discharged Pavich for coming to work at 9:15 on March 22. Whether this was the actual cause of discharge is immaterial .40 Having considered the entire record, it appears to me it was. In any event, I find and conclude that counsel for General Counsel has failed to establish by a preponderance of the probative and substantial evidence that on March 22, Respondent discharged Pavich because he joined or assisted the Union or because he engaged in other protected concerted activities, as alleged in the complaint. There is no credible evidence that Respondent at the time of Pavich's discharge had any knowledge of any union activity in the shop, or possessed any union animus. Concluding Findings I conclude, based upon the entire record, including the briefs of the General Counsel and Respondent, that General Counsel has failed to prove any of the violations alleged in the complaint by a preponderance of the probative and substantial evidence. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following conclusions of law: 1. At all material times Respondent has been an employer engaged in commerce within the meaning of the Act. knowledge of any union activity in the shop 39 Ads had been placed in the papers for a replacement for Pavich about a month earlier This was not only because of his tardiness but also because the quality of his work was not up to standard so far as Hitchcock was concerned He had received a variety of complaints 40 Respondent could have discharged him for any reason not forbidden by the Act 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the meaning of the Act. 3. The record does not establish that Respondent has engaged in any unfair labor practices as alleged in the complaint. 41 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Sec I, therefore, recommend the following: ORDER41 The complaint herein is dismissed. l02 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