Padre Dodge

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Padre Dodge and International Association of Machin- ists and Aerospace Workers , AFL-CIO. Case 21- CA-11108 August 6, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On February 16, 1973, Administrative Law Judge George H. O'Brien issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, but only to the extent consistent with our Decision herein. We disagree with the Administrative Law Judge's conclusion that the Respondent did not violate either Section 8(a)(1) or (3) of the Act. The 8(a)(1) Violations 1. Contrary to the Administrative Law Judge, we find that Respondent violated Section 8(a)(1) of the Act through Service Manager English's comment to employee Van Sickle, the Union's shop committee- man, on June 27, 1972. At that time English stated that Respondent knew Van Sickle was a union organ- izer and rhetorically asked him why, if he was not happy on the job, did he continue his employment. Such remarks clearly convey to an employee the threat that management considers engaging in union activities and continued employment essentially in- compatible. They also convey to the employee the' impression that his union activities are being kept under surveillance. They, thus, come within that inter- ference and coercion proscribed by Section 8(a)(1).' 2. We also find that President Calabrese's ques- tioning of, and comments to, Jastrzembski on the morning of August 3 violated Section 8(a)(1). The meeting on that date was ostensibly held for the pur- pose of inquiring into Jastrzembski's alleged union activities on company time the previous day, despite the fact that almost immediately after such suspected i Compare Gem Knits, Inc, 174 NLRB 449, 452, also Rumor Dress Corp, Samuel Todaro Individually, 175 NLRB 320, 327-328, Florida Sugar Corpora- tion, 142 NLRB 460, 462 activities had occurred, Shop Manager English had questioned Jastrzembski about the matter. The inci- dent, as Jastrzembski had explained without chal- lenge to English, arose when fellow employee Pittman talked to Jastrzembski about insurance that Pittman sold on the side. In response, Jastrzembski had told Pittman he was at the time uninterested because he would be able to get insurance through the Union if it managed to organize the shop. In light of that expla- nation, it must then have been as clear to English, as to us now, that the incident between the two employ- ees had not involved union activity in any meaningful sense of that term, if at all. Thus, as the Respondent already had full knowledge of what appears to have been a rather innocent episode, we see no plausible or convincing business reason explaining its interest in further pursuing the August 2 matter by bringing Jas- trzembski before its president for questioning.2 Furthermore, the meeting was not limited to exp- loring that incident. Rather, having first inquired into the matter, Calabrese proceeded to question Jas- trzembski about the union health plan, and then warned him against engaging in union activities dur- ing working hours. He also told Jastrzembski there was enough discord in the shop and that he would see there was not any more. He concluded by warning Jastrzembski to forget about his "other activities" and get his productivity up. Clearly, in the circumstances and absent any contrary explanation, the "discord" and "other activities" were union-related "discord" and "activities." Thus we find that these latter state- ments by Calabrese were but thinly veiled threats to take some unspecified action against any increase in union activities in the shop and against Jastrzembski for his activities on behalf of the Union. In view of the foregoing, we are led to the conclu- sion that Calabrese seized upon the August 2 Jas- trzembski-Pittman incident as a convenient cover to harass and coerce Jastrzembski with respect to his engaging in legitimate union activities. Accordingly, we find that Calabrese, by confronting Jastrzembski concerning the already explored August 2 incident and by the thinly veiled threats described above, in- terfered with, restrained, and coerced Jastrzembski with respect to his protected concerted activities and thereby violated Section 8(a)(1) of the Act? 2 Especially would this conclusion seem warranted in vir,w of the facts, that (1) Jastrzembski was, as English knew, on his lunchtime when he talked to Pittman and (2) in any event Respondent had no rule , insofar as appears, against employees talking with one another at any time 3 We find no merit to the General Counsel's cositention that Jastrzembski was threatened with discharge by Pitarro, the foreman, when he told him that "You've had it," during the course of a heated argument between Pitarro and a union representative stemming from the latter's alleged trespass on compa- ny property We note that Pitarro first made the comment to the union agent and only repeated it to Jastrzembski when the employee tried to intervene In these circumstances, we are unwilling to ascribe anv meaning to the statement that could be construed as i,iterference w;''n an employee's Sec 7 205 NLRB No. 39 PADRE DODGE 253 The 8(a)(3) Violation The General Counsel contends that Van Sickle's discharge on June 29 was unlawful. As noted above, Van Sickle was the union committeeman in the shop, openly engaged in union activities, and on June 25 had been the object of English's unlawful query as to why he continued his employment if he was unhappy with his place of work. The Administrative Law Judge nevertheless found no violation concluding that Van Sickle was discharged, not for union-related reasons, but (1) because his production had fallen off; (2) be- cause of his insulting and contemptuous scatological remarks to English when questioned about a drop in productivity on June 22; (3) because he had per- formed unauthorized work, i.e., replaced, rather than just inspected, a pump seal; and (4) because he had attempted to cover this alleged dereliction by writing the word "replace" on his work order. A review of the record, however, discloses that Van Sickle's termination notice cited only "unauthorized work" as the ground for the discharge; English and Shop Foreman Pitarro, who together decided on the discharge, both testified that the only ground for their action was Van Sickle's performing the "unauthorized work" described above in item (3). Consequently, we find the Administrative Law Judge erred in citing items (1), (2), and (4), above, as proper economic rea- sons for Van Sickle's discharge, since management did not rely on them as reasons for its action.4 Furthermore, even considreed on their merits, the reasons as relied on by the Adminsitrative Law Judge do not support his result. Thus, with respect to pro- ductivity, the record does show that there had been a fall in Van Sickle's productivity during the spring of 1972, that Calabrese had talked to him about it on May 12, and that English had raised the matter again on June 22. Nevertheless, at the time of his discharge, Van Sickle's productivity had, as English's records showed, begun to increase from its low reached around June 1. As for the scatological comments thrown at English as a result of their June 22 talk on productivity, Van Sickle discussed these along with other complaints rights Likewise, we find no merit to the General Counsel's contention that English unlawfully interrogated Jastrzembski shortly thereafter when, in the presence of a policeman , English inquired as to what the earlier incident between the union agent, Pitarro, and Jastrzembski was all about First, we note that at the time Jastrzembski's status as an employee was in doubt since he had previously quit his job , second the inquiries of English can be inter- preted as involving an effort on the part of the Respondent to ascertain facts to aid the police in an investigation into the conduct of nonemployees coming onto Respondent's property without authorization 4 Calabrese did testify that Van Sickle was discharged not "for bust] unau- thorized work It was a series of events that Van Sickle was terminated for " However, he did not specify what the events were and, as indicated, his testimony was flatly at variance with that of English and Pitarro. concerning him with Calabrese on the afternoon of the day they were made. In the course of this discus- sion, Van Sickle promised to change his ways and try to get along. This apparently was acceptable to Cala- brese and ended the matter insofar as Respondent was concerned, as Van Sickle was permitted to return to work. Furthermore, there is no evidence that he engaged in any type of conduct for which he had been criticized, and which would have given Respondent cause to reconsider the incident, between the date of this discussion with Calabrese and the date of his discharge. Finally, as for Van Sickle's writing in the word "replaced" on his work order form, there is no basis whatsoever for concluding, as did the Administrative Law Judge, that this was an attempt to cover up an alleged dereliction in replacing the seal. Van Sickle did not strike the work "check" nor did he in any other manner seek to make it appear that his work order had specifically directed him to replace the seal. In fact, he readily conceded, when asked by English, that he had written in the word "replace." Rightly or wrongly he had replaced the seal and had simply not- ed that fact on the work order form. In such circum- stances, there is no basis for the Administrative Law Judge's inferring that Van Sickle was dissembling in a manner which would seem to warrant his discharge. In view of the above, we conclude that these items offered by the Administrative Law Judge as justifica- tion for Respondent's terminating the employment of Van Sickle do not on their merits give support to his conclusion that Van Sickle was discharged for cause. Thus, we are left with the Respondent's contention that he was dismissed for doing unauthorized work. We find this reason also unconvincing. Van Sickle's work order called for replacing a freeze plug and inspecting the pump seal. To replace the plug he had to remove the transmission. When about to reinstall it, he was asked by Gilmore, the dispatch- er,' if he had checked the seal. Van Sickle replied that he had and saw no leak. Gilmore then had Dowell, the transmission expert, check, and he, too, stated he saw no leak. Dowell explained that any further check would require removing the seal, a process that would necessarily damage it and thus require its being re- placed. Gilmore stated to Dowell and Van Sickle that he would not like to see it-presumably the transmis- sion-"pulled out again the next day or next week for free." As a result of this conversation, Van Sickle took s Service Adviser Brunk wrote up work orders, Gilmore, the dispatcher, assigned the work orders to the various mechanics Brunk , Gilmore, and Pitarro, the shop foreman , could authorize an employee to do additional work on a car However, under California law it is unlawful to perform work on a car unless authorized by the customer and Respondent has a rule that mechanics are not to perform such work unless authorized by proper man- agement personnel 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the transmission to Dowell's workbench. There he disassembled it and replaced the old seal, as it had become damaged in the act of removing it for further inspection. According to English's testimony, on learning the next day of the replacement of the seal, he asked Brunk, Gilmore, and Pitarro if they had authorized it and they all denied having done so. He then asked Van Sickle about the matter. Van Sickle claimed Gil- more had told him to replace the seal as Dowell and Jastrzembski would verify. English inquired of Do- well about the matter and, according to English's tes- timony, Dowell stated that Van Sickle had been authorized to replace the seal. English's reaction was to state he had to back up his management personnel "irregardless of what the mechanics say" and dis- charged Van Sickle for making an unauthorized re- pair. Whether or not Gilmore told Van Sickle in so many words to replace the seal-a statement he denied making-seems relatively unimportant to us.' As the above shows, it was Gilmore's actions which stopped Van Sickle's reinstalling the transmission before re- placing the seal, and Gilmore's conceded statement about avoiding taking the transmission out again without charge which resulted-and quite reasonably we believe-in Van Sickle's taking those further steps in checking the seal. Those steps necessarily resulted, as Dowell explained to Gilmore at the time, in dam- age to the seal. Thus it had to be replaced. Furthermore, Dowell testified without contradic- tion that at least once or twice a week he replaced pump seals when his work order instructions were simply to "inspect" the seal and that he had not been criticized for doing so. He added that in his opinion- and Dowell was Respondent's transmission expert-it would be negligent not to replace the seal where, as in Van Sickle's situation, the transmission had been taken from the vehicle for other reasons because at such time and otherwise fairly expensive repair in- volves but minimal costs to the customer.7 The foregoing recitation shows, in our opinion, that the Respondent in accusing Van Sickle of an unau- thorized replacement was making him a victim of ob- viously confusing, if not actually misleading, instructions; that English's position that he had to 6 The Administrative Law Judge seems to have found that Gilmore said, when talking to Van Sickle and Dowell about the seal, "Well, replace it then " That conclusion would be directly contrary to his finding that Van Sickle was not authonzed to replace the seal Moreover, the quoted words are words Dowell testified he had said, not what Gilmore had said Van Sickle testified that Gilmore, in a more lengthy statement, told him to replace the seal. But, at best, precisely what was said is ambiguous as far as the record is con- cerned, however, as explained above, the confusion is, in our view, of little consequence 7 Once the transmission is removed it takes about 15 minutes to replace the seal, with a total cost to the customer, including labor, of only a few dollars back up his management irrespective of the merits of Van Sickle's case shows he was more interested in maintaining the appearance of a breach of a company rule by Van Sickle than in determining the actual merits of the situation;' and, finally, that in assertedly discharging Van Sickle for unauthorized seal replace- ment it was discharging him for conduct that had not evoked criticism, much less a discharge, in the case of Dowell. In these circumstances, we find the asserted reason for Van Sickle's discharge to be a pretext. Conse- quently, in view of Respondent's hostility towards union activity in its shop, as shown in part by its conduct found above to have violated the Act,' we find that Van Sickle was discharged because of his activities as the Union's committeeman in Respondent's shop and, thus, that his discharge vio- lated Section 8(a)(3) and (1) of the Act. In view of the foregoing, we make the following: Conclusions of Law 1. Padre Dodge, Inc., doing business as Padre Dodge, is an employer within the meaning of Section 2(2) of the National Labor Relations Act and is en- gaged in commerce and in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By threatening an employee representative that his union activities were inconsistent with continued employment with Respondent, by creating the im- pression of surveillance of employee union activities, by harassing employees concerning their alleged union activities through confrontations with its presi- dent, by threatening that it would prevent any addi- tional union activity in its shop, and by threatening an employee to stop engaging in union activities and increase his productivity, the Respondent has inter- fered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. 4. By discharging employee Richard K. Van Sickle because of his engaging in union and other protected activities, Respondent has violated Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that the Respondent has engaged in Owens-Corning Fiberglass Corporation, 185 NLRB 75 at 76-77 9 See, also, Padre Dodge, 189 NLRB 378, enfd. 471 F 2d 416 (C A 9, 1973), in which the Board found, inter ada,-and the court agreed-that Respon- dent had discharged four employees in order to discourage union member- ship PADRE DODGE certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully dis- charged Richard K. Van Sickle on June 29, 1972, we shall order it to offer him immediate and full rein- statement to his former fob or, if that fob no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that he normally would have earned from the date of discharge to the date of Respondent's offer of rein- statement, less his net earnings during such period. The backpay shall be computed in accordance with the remedial relief policies set forth in F. W. Wool- worth Company, 90 NLRB 289, and Isis Plumbing and Heating Co., 138 NLRB 716. In view of the nature of the unfair labor practices committed, and the recent violations found to have been committed by Respondent in 189 NLRB 378, we shall order the Respondent to cease and desist from in any other manner infringing upon the rights guar- anteed employees in Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Padre Dodge, San Diego, California, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing its em- ployees in the exercise of their rights protected by Section 7 of the Act by threatening employees that participation in union activities is inconsistent with continued employment, by harassing employees con- cerning their alleged union activities through confron- tation with its president, by threatening employees that it will prevent any additional union activity in its shop and that they should stop engaging in union activities and increase their productivity. (b) Creating the impression of surveillance of union activities of its employees. (c) Discharging or otherwise discriminating against employees because they engage in union or other protected concerted activities. (d) In any other manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: 255 (a) Offer to Richard K. Van Sickle immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent job, with- out prejudice to his seniority or other rights and privi- leges, and make him whole for his lost earnings in the manner set forth in the section of this Decision enti- tled "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 to analyze the amount of backpay due under the terms of this Order. (c) Post at its San Diego, California, location co- pies of the attached notice marked "Appendix." 10 Co- pies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of the Respondent, shall be posted by the 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 the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) 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 here- with. 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees by telling them that participation in union activities is in- consistent with continued employment. WE WILL NOT engage in conduct intended to make our employees believe we are maintaining surveillance of their union activities. WE WILL NOT interfere with our employees' union and other protected activities by threaten- ing employees that we will prevent any additional union activity in our shop and that they should stop engaging in union activities. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discharge any employee for serv- ing as a union committeeman or for otherwise engaging in protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL offer Richard K. Van Sickle immedi- ate and full reinstatement to his formerjob or, if that job no longer exists, to a substantially equiv- alent position, without prejudice to any seniority or other rights and privileges previously enjoyed by him, and make him whole for any loss of pay he may have suffered as a result of his unlawful discharge on June 29, 1972. PADRE DODGE (Employer) Dated By (Representative) (Title) 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 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200. DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN , Administrative Law Judge: On No- vember 8 and 9 , 1972, in San Diego, California , a hearing was held in the above -entitled matter . The complaint, issued August 29, 1972, is based on a charge filed July 11, 1972, by International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and alleges violations of Section 8(a)(1) and (3) of the National Labor Relations Act by Padre Dodge , herein called Respondent. Upon the entire record I in this proceeding, including my observation of the witnesses and after due consideration of the posthearing briefs, I make the following: 1 The General Counsel's posthearing motion to correct the stenographic transcript is granted FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is a California corporation engaged in the retail sale of automobiles and of related parts and services in San Diego, California. Respondent's sales annually ex- ceed $500,000 in value, and it annually receives automobiles and parts valued in excess of $50,000 which are shipped from points outside the State of California directly to its San Diego store. Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Sections 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint , as amended at the opening of the hearing, alleges, in material substance , that Respondent, through its president, Joseph Calabrese, its service manager, John R. English, and its shop foreman, Frank W. Pitarro, violated Section 8(a)(1) of the Act by (a) promise of and installation of a profit sharing plan, (b) threats of discharge and other reprisals, (c) coercive interrogation, (d) creating the impres- sion that union activities were kept under surveillance, and (e) prohibition of union activities on company premises, and violated Sections 8(a)(1) and (3) of the Act by discharg- ing Richard Van Sickle on June 29, 1972. Respondent's answer is a general denial. B The Setting Respondent is a typical new car dealership franchised by Chrysler Motors Corporation. Its president, Joseph Cala- brese, is also president of the San Diego Dodge Dealers' Association and a member of the Dealers' Council for the Western Region of the United States. He has delegated to his service manager complete control of the repair shop, and enters the area not more than one or two times per month. The service manager in 1971, and through early August 1972, was John English. At the time of the hearing he had been replaced by Frank Pitarro. From some date in April 1972 through August 4, 1972, and for some time thereafter, Frank Pitarro was shop fore- man. His primary duties were those of quality control in- spector and public relations . He spot checked mechanics to see if they were doing their jobs on time. He talked to customers about discrepancies . His duties included locking up the shop at night, and policing the area to see that it was cleaned up . He had no power to assign work or to discipline or discharge employees. If he had any problems, he was required to advise the service manager, whose office win- dow commanded the entire service area. The complaint alleges and the answer admits that Pitarro, as foreman, was PADRE DODGE a supervisor within the meaning of the Act. The California legislature enacted in 1971, a comprehen- sive customer protection bill entitled "Automotive Repair Act." Although it was signed by the Governor and enrolled by the Secretary of State on November 22, 1971, its provi- sions did not go into full effect until June 30, 1972. This statute, Business and Professions Code of the State of Cali- fornia, Sections 9880 et seq. contains the following provi- sions, Sec. 9884.8 All work done shall be recorded on an invoice . . . one copy shall be given to the customer Sec. 9884.9 The . . . dealer shall give to the customer a written estimated price . . . and shall not charge for work done in excess of the estimated price without the oral or written consent of the customer.. . . Violation of either of these provisons, inter alia, is made a misdemeanor punishable by a fine of $1,000 or imprison- ment for 6 months. Respondent, in the spring of 1972, attempted to bring his operation into full compliance with all the provisions of the Automotive Repair Act. When a customer enters the shop he is greeted by a ser- vice advisor who diagnoses the problem and fills out a re- pair order, specifying the work to be done and the estimated cost 2 He obtains the customer's signature and gives one copy of the repair order to the customer. The order then goes to the dispatcher, who, using independent judgment, assigns the work to one of 11 line mechanics. It is the duty of the mechanic to perform the work described on the "hard copy" of the repair order and nothing else. If he believes additional work to be necessary, he must advise the service manager, the foreman, the dispatcher or the service advisor. They in turn must communicate with the customer and secure his permission. Only then may one of these four write the additional work on the service order. C. Richard K. Van Sickle In November 1971, Van Sickle completed 20 years of service in the United States Marine Corps. In August 1971, pursuant to an understanding between Respondent and a Marine major, as part of "Project Transition," Van Sickle was permitted to work full time in Respondent's shop to learn the trade of automotive mechanic. For 2-1/2 months he worked under the direct tutelage of a journeyman me- chanic James Laws. He received his regular Marine Corps pay. When he returned to Camp Pendleton for "processing out," English told him that he could have a regular job as a line mechanic after his discharge. Van Sickle told English 2 Though called an "estimate," this cost is, in the absence of additional authorization from the customer, the final price The service advisor is re- quired to follow the "Glen Mitchell Manual" which lists the price of every replacement part, and prescribes the number of hours or tenths of hours to be charged to the customer for labor on every possible operation 257 in December that he accepted the offer, and he started to work for Respondent on January 3, 1972. His base pay was $3.00 per hour. Respondent paid semimonthly, and on ev- ery paycheck to and through, April 30, 1972, Van Sickle earned a bonus over and above his hourly rate. Respondent's mechanics are paid by a complicated for- mula based on varying individual hourly rates and on a progressive bonus when "productivity" reaches or exceeds 75 percent. "Productivity" is computed as 74% of the quo- tient obtained by dividing the total hours billed to custom- ers during a payroll period by the total hours actually worked by the mechanic during the same period. The fol- lowing chart 3 shows the "productivity" of each mechanic during the period from January 2, 1972 through April 15, 1972, inclusive: Name of Hrs. Hrs. Billed Produc. Mechanic Wkd. Cust. Percent Cartwright 575 1117.3 143.6 Dowell 595 1132.0 140.6 Gilmour 564 902.5 118.4 Laws 598 916.0 113.2 Van Sickle 577 677.2 86.6 Edwards (hired 3-6) 243 281.5 85.8 Buchard (hired 2-29) 288 321.0 82.1 West 628 770.5 81.0 Zeller 628 686.1 80.4 Becker 638 658.5 79.2 Jastrzembski (hired 4-10) 44 24.7 41.4 Prior to the appointment of Pitarro in April 1972, there was no shop foreman, and Van Sickle took all of his instruc- tions from the dispatcher, James Gilmore. Pitarro testified, without contradiction, that in May and June 1972, he had many arguments with Van Sickle about 3 Computations in this chart are based on worksheets of W R Davidson, Dealer Service and Operations Specialist, U S Automotive Sales & Service, Chrysler Motors Corporation, Detroit, Michigan, received in evidence as Resp Exh 7 Calabrese, after identifying Resp Exh. 7 testified, with com- plete disregard for truth, that this exhibit showed that Van Sickle's productiv- ity for the period January 2 through April 15 was the lowest of all mechanics The figure he read for Van Sickle's productivity, "76" was the number of hours which Van Sickle worked between January 3 and January 15, 1972. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doing jobs, and several times recommended to English that Van Sickle be discharged. On one occasion a car on which Van Sickle had been working was projecting into the alley at closing time, making it impossible for Pitarro to close the gate . When Pitarro asked Van Sickle's help in moving that car, Van Sickle answered that he would not unless he re- ceived overtime pay. Several times he refused to recheck brakes for the asserted reason that Pitarro was incompetent to tell him what was wrong with them. When assigned by the dispatcher to a valve job he told Pitarro that he was not going to do it because he was not qualified. When Pitarro insisted, Van Sickle got "hostile" but did the job. Thereafter Pitarro received repeated "gripes" from the customer. When a customer called for a car while the lotboy was out to lunch, Pitarro could not find the keys. Being informed that Van Sickle had parked the car, he asked Van Sickle to find the keys, and Van Sickle refused. When Pitarro patted Van Sickle's Jacket, which was lying on a bench, to see if he could feel the keys, he was upbraided by Van Sickle for "going through his personal stuff." One day he told Van Sickle to go and see John English because he was tired of arguing, because he could not have a man in front of him who was refusing to work and as far as Pitarro was concerned, Van Sickle was finished. This order was also ignored. During the first pay period in May Van Sickle's produc- tivity fell, for the first time, below 74 percent. He was called to Calabrese's office on May 12, 1972, and they had a long conversation 4 Van Sickle told Calabrese that he thought his low productivity was due to his lack of knowledge com- pared with the other mechanics. Calabrese told Van Sickle about his war record during the second world war, remind- ed him of the profit sharing plan which Dodge Dealers were considering, and which had been described earlier at a meeting of service department employees, and told him that if any employee was unhappy, he was free to leave. That night Van Sickle signed an authorization card for the Union and volunteered to be the Union's shop commit- teeman for Padre Dodge. Van Sickle openly and vigorously promoted the Union. He distributed authorization cards to all of the mechanics, to the lotboys, to the parts men, and to some of the bodysh- op men. He also distributed union literature in the shop. One morning, before work, as he was placing a copy of the Union's contract with Long Beach, California, automobile agencies on the tool boxes of mechanics, he noted that Pitarro was following him and picking up the contracts. He saw Pitarro place them on English's desk. Van Sickle sus- pended his distribution until the noon hour, at which time he handed out the remainder of his contracts to the mechan- ics in person. On one occasion, when Pitarro approached a group of mechanics, one of them handed him a union au- thorization card and said, "Here Frank, sign it. Van Sickle is in the Union and wants you to join it." On June 22, 1972 (one or two days after Van Sickle's distribution of Long Beach contracts), English filled out a Although Van Sickle testified at one point that this conversation was the day after he signed a union card, he had previously testified that he signed the card and volunteered to be shop committeeman on May 12 A contempo- rary memborandum of Calabrese fixes the date of the conversation as May 12 "Personnel Interview Form," stating under "Purpose of In- terview" the words, "Hourly Productivity is Low," and un- der "General Comments". "Hourly Productivity Output For Period 6/ 1 /72 to 6/15/72: 77.1% productive, 2.1% bo- nus; For Period 5/ 1 /72 to 5/15/72: 73.8% productive, 0.% bonus." English then called Van Sickle to his office , showed him the form, and asked Van Sickle why his productivity had dropped so low. Van Sickle answered indignantly that it was the fault of the parts department, that he had to waste too much time at the counter waiting for parts . English then wrote on the "Personnel Interview form," the words: Complains of too much time lost on parts procurement. Wants overtime for Saturday work. Van Sickle signed the form and left the office. A few min- utes later, while English was talking to Calabrese on the telephone, Van Sickle stuck his head back in the door and yelled: Let me tell you something. You are full of- and your dispatch board is full of- Calabrese heard the remark clearly and asked who it was. English replied that it was Van Sickle and that he should be fired. Calabrese asked that Van Sickle be sent to his office. Calabrese told Van Sickle that he had received com- plaints from the service manager, service advisors, dispatch- er, and parts department, and that Van Sickle would have to change his attitude if he wanted to get ahead. Calabrese told Van Sickle that he had been in the Navy, and had been attached to the Marine Corps and the Australian Army. Calabrese had only gone to 10 grade, had not inherited any money, and had worked his way up from the bottom. The conversation ended with Van Sickle's promise to change his ways and to try to get along. During the lunch period on June 27, English told Van Sickle that he knew Van Sickle was a union organizer and asked, "why, if he wasn't happy where he was working, why did he continue employment?" At 8:00 a.m. June 28, Van Sickle received from the dis- patcher, James Gilmore, a work order reciting: Replace fuze plugs Check Front pump seal. Van Sickle pressurized the cooling system and verified the fact that coolant was leaking around the fuse plugs in the rear of the engine. It was necessary to remove the transmis- sion to effect a replacement. Gilmore came up and asked if he had checked for a leak of transmission fluid. Van Sickle answered that he saw no sign of leak. Gilmore said, "Get Jerry over here." Gerald Dowell, who did all the automatic transmission work for Respondent, looked at the transmis- sion and told Gilmore, "It's not leaking." Gilmore said, "Well, I would hate to see you pull it out again next week or the next day for free." Gilmore answered, "Well, replace it then" and went back to his stall. Van Sickle then took the transmission to Dowell's stall, and using Dowell's tools, removed the front pump seal and replaced it with a new part. Before turning in the "hard PADRE DODGE copy" of the repair order with the finished job he wrote in ink the word "Replace" after the words "Check front pump seal." 5 On the afternoon of June 28, Harold Brunk, the service advisor who had written the order on June 27, showed the hard copy to English and told him that he (Brunk) had not authorized replacement of the seal. English then inquired of Gilmore and Pitarro, and both denied authorizing replace- ment. English then prepared a "Personnel Interview Form" stating the "Purpose of Interview" to be "Termination," and under "General Comments" the words: Ref. R.O. #21183, Unauthorized Repair of Trans. Front pump seal. Ref W.R.O. #F-10024 Repair and insp . oil leak at Trans & Engine . Oil leak at Trans. still exists at Ext. seal. Trans. mounting Bolt striped and no supervisor informed Insp. By Shop Foreman & Serv. Mgr. The form was signed by English and by Pitarro. On this morning of June 29, English asked Van Sickle who had written the word "Replace" on the repair order. Van Sickle answered that he did. English asked who had authorized replacement of the seal. Van Sickle answered that the dispatcher had told him to replace the seal and that Dowell, Jastrzembski, and Buchard had heard the order. English asked Pitarro to get Dowell. Dowell told English that Van Sickle was authorized to replace the seal. After Dowell left the office, English said, "I have to back my management personnel up, irregardless of what the me- chanics say" and discharged van Sickle "for making an unauthorized repair on a vehicle," In response to Van Sickle's request that he put it in writing, English prepared and delivered to Van Sickle the following: TERMINATION NOTICE Date 6-29-72 Name: R. Van Sickle Position: Mechanic Term Effective Date: 7:30 A.M. 6-29-72 Reason for Termination: Unauthorized Repair' on R.O. #21183 to Replace Trans Front Pump Seal. The "Personnel Interview Form" which English had pre- pared the previous night was not shown to Van Sickle, nor was there any mention of the W.R.O. #F-10024 described therein. There was no mention of productivity, of attitude, or of the Union. After discharging Van Sickle, English wrote on the back of the "Personnel Interview Form": Repair on 21183 .10 Replace Front Pump Seal was not 5 On April I, 1972, Van Sickle had signed a statement required of all mechanics by Respondent reciting There is to be no additional work added to any repair order unless written on by a service writer, dispatcher , shop foreman or service man- ager 259 authorized by Serv. Writer, Mr. Brunk, by Dispatcher Mr. Gilmore or by Foreman Mr. Pittaro English then obtained the signatures of Harold Brunk, F. W. Pitarro, and Jim Gilmore. On the same morning English prepared a memorandum for Dowell's signature reciting that he had heard Gilmore authorize Van Sickle to replace the seal. Dowell refused to sign and told English, "I didn't hear it. I wasn't in the area when it was ordered to do so." English also asked Jastrzembski whether he had heard the order. Jastrzembski told English that he had heard an order to "check" the seal but had not heard any order to replace it.6 On the afternoon of June 29, Van Sickle asked Calabrese if he had been informed of the discharge. Upon receiving an affirmative answer he asked that Dowell and Jastrzemb- ski be questioned by Calabrese. Instead of complying with this request, Calabrese called in turn, English, Pitarro and Gilmore and each denied in Van Sickle's presence that he had authorized replacement of the seal. Calabrese then said: Van, there are just too many complaints against you. I can't do anything for you this time. Calabrese told Van Sickle that in looking for other em- ployment, he could use Calabrese's name directly, that no one would blackball him or run down his reputation, that when he went to another shop he could get a better start and have a different attitude than he had at Padre Dodge. D. Interference, Restraint, Coercion At a service department meeting held the last week in April or the first week in May 1972 Calabrese announced that all Dodge dealers in the San Diego area were proposing to put into effect a profit-sharing retirement plan. He re- minded his auditors that the profit-sharing plan which Re- spondent had in effect in 1967 had been terminated pursuant to a court order obtained by a minority stockhold- er and expressed the hope that "with the other five dealers putting it in, that it could not be opposed." Respondent's participation in the plan was approved at a special meeting of its Board of Directors on May 19, 1972. On June 10, 1972, Respondent received the following letter: 6 Only English, Van Sickle, and Dowell were present when Dowell was questioned Van Sickle testified, "Jerry basically substantiated what I had already told [English] " English testified, "Dowell stated that he had heard the order to replace " There is no testimony by Dowell describing his state- ment to English in the presence of Van Sickle Dowell, describing his prac- tice, when the work order states "check front pump seal" testified that if the transmission is in the car, and fluid is not escaping, he goes no farther If the transmission is out of the car, and no fluid is escaping, he replaces the seal, without any authorization other than the word "check " It takes about 5 minutes to replace the seal after the transmission is removed The cost of the seal to the dealer is 60 cents and to the customer is $1 60 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 8, 1972 TO ALL SAN DIEGO NEW CAR DEALERS Greetings: This letter will officially notify you that the Machinists and Teamsters Unions are engaged in organizing activ- ities of all service department employees except the supervisors, who are excluded by law: "Section 7 of the Labor-Management Relations Act, which is a Federal law of the United States, guaran- tees employees the right to organize and bargain col- lectively with their employer. Here are the actual words from this law: SECTION 7 EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGA- NIZATION, TO FORM, JOIN OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION Please notify all your supervisory personnel so that they will be aware of the employee's rights to organize. Sincerely, T.R. ROBERTS ( signed) T R. Roberts Business Representative District Lodge 50, IAM & AW Calabrese, on advice of his counsel, Mr. Brown, had Eng- lish post the Union's letter on the bulletin board in Respondent's shop.? On July 3, 1972, Mr. Brown met with Respondent's super- visors and advised them that management must remain neu- tral "in regards to any [union] organizational drive " Calabrese at the same meeting stated that there were prob- lems with the "pension" plan which were currently being ironed out. On the same day, Calabrese called a meeting of nonsuper- visory service department employees. After introducing Mr. Brown, Calabrese said, "he was going to fight for his em- ployees . . . he had fought these people before and he would fight them all the way to the Supreme Court, if neces- sary." a Calabrese also stated that the retirement profit shar- ing plan was still in process and would come into effect shortly. After Calabrese left the meeting, Mr Brown read a letter from the Union, and stated, inter alia that a person's activities on his own time were his own business and could be carried on any way he saw fit ... that management had no control whatsoever, nor There is no evidence that Van Sickle engaged in any union activity (other than signing a card and agreeing to be committeeman) prior to June 10, 1972, nor is there any evidence that Respondent was aware of any campaign by the Union to organize service employees prior to June 10, 1972 8 As of July 3, 1972, the Board's petition for enforcement of its order handed down March 29, 1971, in the matter of Padre Dodge, 189 NLRB 378, was pending in the United States Circuit Court of Appeals for the Ninth Circuit was to exercise any control whatsoever, over an employee's personal action on his own time. The lunch period for Respondent's shop employees was 12:00 noon to 1:00 p.m At 11:45 on August 2, 1972, Arthur Jastrzembski, with the prior permission of English, punched out for lunch. Shortly thereafter he was approached by Gary Pittman, a mechanic employed in Respondent's truck shop. Jastrzembski asked Pittman how he was doing with the insurance which Pittman was selling in the evening. Pittman described the benefits of his insurance, and Jas- trzembski said, If we ever organized and we got the Union in, we would probably receive good retirement benefits in the Kaiser plan from the Union, and that I wasn't really interested in looking at any other insurance until then. On the afternoon of August 2, Jastrzembski was called to English's office and shown an affidavit signed by the then dispatcher , Bob Burrows , by Gary Pittman and John Eng- lish, reciting that Jastrzembski had been discussing union activities during working hours. Jastrzembski told English that he was clocked out for lunch, that the discussion con- cerned insurance , and that he had no intention of discussing union activities during working hours. English told him to get back to work and get his percentage up. Next morning, August 3, in Calabrese's office in the pres- ence of English and Pittman , Jastrzembski testified, without contradiction: Mr. Calabrese had asked what we had been discussing the day before, and Gary explained to him that we were discussing the difference between the insurance that he was selling, and that I had told him that I would wait and see if we got the Kaiser plan or not when the Union got us organized He then told Mr. Pittman he could leave, and he asked me what the Kaiser plan was. I explained to him that it was a medical and hospital plan offered by the Union. He told me he didn't want me conducting union activities during working hours. He said there was already enough discord in the shop, and that he didn't want any more, and he would see to it that there wasn't any more. He explained to me that my percentage output in the shop was the lowest at that time, and he informed me that I should get back to work and forget about all my other activities and get my percentage up. As above noted, the lunch hour in Respondent's shop is noon to 1 o'clock On August 3, 1972, Jastrzembski punched in from lunch at 12:45 and went to work. A few minutes later, he was called to the edge of Respondent's property by Van Sickle and the Union's Grand Lodge Representative, H. B. Quick. Quick gave Jastrzembski some union litera- ture to be distributed. As Jastrzembski was walking back toward his stall, Pitarro walked up and told Van Sickle and Quick "to get the hell off the property." Quick replied, "We PADRE DODGE are in an alley; we are not on the property . We can stay here as long as we want." Pitarro repeated his demand with vulgar emphasis . Quick repeated his refusal with highly pro- vocative obscene epithets directed at Pitarro . Pitarro shook his finger at Quick saying, "You have had it ," and turning to Jastrzembski and again shaking his finger, said "You have had it too." At this moment the dispatcher, Burrows, walked up. Jastrzembski handed his time card to the dis- patcher saying, "I quit," and started to pack his tools. Shortly thereafter Jastrzembski was called to English's office and in the presence of a police officer questioned by English about what Van Sickle and the union man were doing there. Jastrzembski answered that they were there to give him some union literature. English asked for and re- ceived a copy. English asked for the name of the man with Van Sickle, and Jastrzembski refused to tell him. When Calabrese returned from lunch at about 1 : 30 p.m. it was reported to him that Van Sickle and a union man had come on the premises and tried to start a fight and that Jastrzembski had quit. Calabrese gave instructions to make a written report, get the name of the union man , and swear out a warrant . He also asked to see Jastrzembski. In Calabrese's office, in the presence of English and Pitar- ro, Jastrzembski refused to divulge Quick 's name, or his office in the Union . He told Calabrese that he had quit "because I couldn't take the pressure between Padre Dodge and the Union any more." Calabrese told Jastrzembski what his rights were under the N.L.R.A. and asked him to stay on as an employee, stating that the only thing Calabrese was interested in was the type of workmanship turned out. In response to Calabrese's invitation to stay, Jastrzembski replied that he already had another job, having made a telephone call between the time he quit and the time he was called to the office. In the period from April 1972 through October 1972, Respondent reported , at a number of service department meetings, on the details and prospective implementation of the profit sharing retirement plan. By November 10, 1972, the plan was to "all intents and purposes" in effect. E. Concluding Findings 1. There is no evidence that Respondent's profit-sharing retirement plan was announced or implemented to induce employees to withdraw their support from the Union. Re- spondent was committed to the plan , and its intention to put the plan into effect was announced to employees before it had any knowledge of any union activity affecting its shop employees. 2. There is no evidence that any employee was threat- 261 ened with discharge or other reprisal for engaging in union activity. 3. Respondent's interrogation of Jastrzembski had the legitimate purposes of (a) ascertaining whether he was con- ducting union activities on company time, and (b) ascertain- ing the identity of a stranger who had called Jastrzembski from his work and created a disturbance. There is no other evidence of interrogation related to union activities. 4. Van Sickle's union activities were conducted openly on company property in full view of supervision. English's acknowledgment that he was aware of this fact does not create the impression that union activities were the subject of unlawful surveillance. The statement by English that Jas- trzembski had been discussing the Union with an employee on company time could not create the impression that union activities were the subject of unlawful surveillance. Working time is for work. Pittman was on the clock. The conversa- tion was on company property in full view of supervision. 5. There is no evidence of any prohibition of union activ- ities on company property on nonwork time. 6. Van Sickle was discharged because his production had fallen off, because of his insulting and contemptuous re- mark to English, when questioned about drop in productiv- ity, because he performed unauthorized work, and because he attempted to cover this dereliction by writing the word "replace" on a work order in clear violation of a rule of Respondent implementing the state law. Van Sickle would have been discharged on June 22, 1972, but for the timely intervention of Calabrese. "Respondent may well have wel- comed the opportunity of getting rid of him, but neither his activities, nor the Respondent's attitude, gave him privileges greater than those of other employees." Lloyd A. Fry Roof- ing Company, 85 NLRB 1222, 1224. I conclude and find that Van Sickle was discharged for reasons unrelated to his union or protected concerted activities. CONCLUSIONS OF LAW 1. Padre Dodge, Inc., doing business as Padre Dodge, is an employer within the meaning of Section 2(2) of the Na- tional Labor Relations Act and is engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aero- space Workers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Padre Dodge has not, on this record, engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) or (3) of the Act. [Recommended Order omitted from publication.]