BMW AutoZentrum

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD BMW AutoZentrum and Neil Silverman. Case 20- CA-9621 July 11, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND KENNEDY On March 10, 1975, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent BMW AutoZentrum, San Rafael, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products. Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This case was heard before me in San Francisco, California, on Jan- uary 21, 1975. The charge was filed October 7, 1974, by Neil Silverman, an individual. The complaint issued No- vember 29, 1974, alleging violation by BMW AutoZentrum (herein called Respondent) of Section 8(a)(3) and (1) of the National Labor Relations Act. The parties were given opportunity at the hearing to in- troduce relevant evidence, examine and cross-examine wit- nesses, and argue orally. Briefs were filed for the General Counsel and Respondent. IssuE The issue is whether Respondent, in early July 1974, dis- charged Silverman for refusing to work during a strike of Respondent's union-represented employees, violating Sec- tion 8(a)(3) and (1) of the Act. 1. JURISDICTION Respondent is a California corporation engaged in San Rafael in the sale and servicing of automobiles . Its annual gross income exceeds $500,000, and it annually takes deliv- ery in California , directly from outside the State , of goods valued in excess of $50,000. Respondent is an employer engaged in and affecting commerce within Section 2(2), (6), and (7) of the Act. 11. LABOR ORGANIZATION Machinists Union Local 238, International Association of Machinists and Aerospace Workers, AFL-CIO (herein called the Union) is an organization in which employees participate and which exists for the purpose of representing employees in dealing with employers concerning wages, hours, and other terms and conditions of employment. The Union is a labor organization within Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. Facts The Union represents Respondent's mechanics. The lat- est bargaining contract between the Union and Respon- dent concerning those employees expired June 30, 1974. Shortly before noon, July 1, a successor contract not hav- ing been reached, Respondent's mechanics went on strike in furtherance of the Union's bargaining position. Silverman was employed in Respondent's parts depart- ment at the time, and had been since September 1973. Also in the parts department were Robert Marra, parts manag- er, and Mark Goodman, a part-time employee on vacation throughout the strike. They were not represented by the Union. After lunch, July 1, Rick Kampa, Respondent's president and general manager, told Silverman and Marra that, in view of the strike, it would be a good time to inven- tory the parts department. This, according to Kampa, would have required two people and taken 2 or 3 days. It was not a matter of urgency; Silverman and Marra did not undertake the task, and it has not been done since. Rather than begin to take inventory, Silverman and Marra tended to unfinished business in the parts depart- ment for an hour or so. Marra left the job at or about 1:30 p.m., Silverman a few minutes later. Kampa had been told by one or the other, that day and before, that they would not work during a strike. About a week before the strike, when told this by Marra, Kampa replied that Marra would 219 NLRB No. 27 BMW AUTOZENTRUM 99 not have to worry about it because he would be laid off.' The Union began picketing Respondent's premises July 2. The strike ended about August 8. On July 2, Kampa ordered a 7-day advertisement in the San Francisco papers, seeking a partsman2 The advertise- ment ran July 3 through 9. One Dean Smith answered it July 5; and filled out an application form and was inter- viewed by Kampa July 6. Kampa told him July 6 that he was hired, but that a starting date could not be set because the turmoil attendant the strike precluded Kampa's at that time giving Smith the needed orientation. Kampa said he would contact Smith later about a starting date, eventually informing him on about July 17 to begin July 22. Smith did begin July 22, and has been in Respondent's parts depart- ment ever since.3 Meanwhile, on July 8, having either seen or heard about the advertisement, Marra and Silverman asked for their jobs back. Marra talked to Kampa about 9:30 a.m.; Silver- man, in an unrelated transaction , later that morning. Mar- ra asked Kampa what the advertisement was all about and why he and Silverman were being fired. Kampa replied that Marra and Silverman had been "insubordinate"; that they had no reason to walk out and consequently were being replaced. Kampa relented later in the conversation, saying that, since Marra was the first one to return, he would be "rehired." Kampa added that he had hired some- one new and that Silverman "will lose his place of work." 4 It was agreed that Marra would return as parts manager July 15, which he did. When Silverman asked for his job back July 8, Kampa responded that he had been "terminated for insubordina- tion"; that he had not taken inventory as directed, and someone had been hired in his place. Kampa recalled stat- ing, in addition: "[I]f you would have followed my advice and would have kept on working, you still would have the work." Kampa told Silverman that, had his request to re- turn preceded Marra's, he, and not Marra, "would have had the job." 5 i Marra and Silverman are credited that they forewarned Kampa that they would not work during a strike, Kampa's denials notwithstanding. be- cause of their convincing witness-stand demeanor, because they impressed as conscientious employees who would accord their employer this consider- ation, and because Kampa admitted : "[Alt the time they left . . I assume this is why they leave, they don' t want to cross the [picket] line " "They never told me," Kampa persisted, "but-well, I could recognize the facts." Marra is credited as stating that Kampa the one time raised the prospect of layoff, that being consistent with Kampa's ensuing words and deeds, de- scribed below. 2 An advertisement for mechanics also was placed, but not until July 17 3 Kampa testified that Smith, as a new employee, was subject to a 2 or 3 week "trial period." 4 Marra is credited over Kampa's denial that Kampa characterized Marra and Silverman as "insubordinate " and gave that as the reason for seeking to replace them . That he used the term "insubordinate" meshes with his admit- ted use of "insubordination" in his conversation on the same day with Sil- verman and on the State form mentioned below. Kampa, on the other hand, is credited over Marra's denial that Kampa mentioned the hire of someone new. Kampa's version in that respect is the more plausible , given his earlier transaction with Smith. Kampa came to the United States from Germany in 1961. He is 42 years old. He has good English language skills, although a certain idiomatic awkwardness betrays his foreign origin. 5 Kampa , while admitting use of the word "insubordination" in this con- versation, denied linking it to "termination" or any kindred term Silverman is credited in this regard because of the inherent unlikelihood of Kampa's mentioning "insubordination" except in explanation of action taken or con- Later July 8, Silverman filed with the San Rafael office of the State Department of Human Resources and Devel- opment. In answer to the question on the form, "Why are you no longer working on your last job?", Silverman en- tered: Because I was unwilling to cross a picket line, I was fired for insubordination. A copy of this form, with Silverman's entries on it, was supplied to Respondent for its version. Kampa wrote, in response to the request, "If this person quit or was fired, explain in detail": On 7/1/74, approx. early afternoon, N. Silverman left his place of work after I advised him to take inventory in the Parts Dept. As I found out, he was not willing to cross the Mech. picket line. Mech. went on strike 7/1/74 noon, therefore, there was no picket line at that time, nor for the rest of the day. On 7/8/74 N. Silverman visited our co. and I told him he lost his job because of insurbodination, since he had no reason to leave his place of work. B. Discussion The General Counsel contends that Silverman, as a sym- pathy striker, was engaged in protected activity; and that Kampa discharged him for that reason when Silverman sought, on July 8, to return to work, violating Section 8 (a)(3) and (1). Respondent counters, in its brief, that "Re- spondent merely permanently replaced an economic strik- er" before that striker applied for reinstatement. That Silverman was a sympathy striker engaged in pro- tected activity cannot be gainsaid .6 The weight of evidence compels the conclusion, moreover, that he suffered conse- quent discharge. Thus, on July 8, Kampa told him he had been "terminated for insubordination," later confirming to the State Department of Human Resources and Devel- opment: "I told him he lost his job because of insubordina- tion." Similarly, Kampa told Marra July 8 that he and Sil- verman were being replaced because they had been "insubordinate." Giving Kampa the benefit of an English language disability far beyond that shown on the witness stand, his consistent hewing to the theme of insubordina- tion nevertheless renders Respondent's interpretation of the evidence untenable. Nor is this conclusion regarding Silverman weakened by Kampa's having recanted and "re- hired" Marra. It remains to isolate the discharge's time of occurrence. The General Counsel's view that it happened July 8, coin- cident with the Kampa-Silverman conversation, presum- ably is because this was the first time Kampa addressed Silverman on the subject. It is concluded, however, that the templated against Silverman , and because he admitted, on the State form mentioned below : "I told him he lost his job because of insubordination " Kampa, however, is credited over Silverman that Kampa mentioned a new hire, in light of his July 6 transaction with Smith 6 Eg. P a c i f i c Grinding W h e e l Co, 216 NLRB No. 91 (1974), Congoleum Industries, Inc, 197 NLRB 534 (1972), Union Carbide Corporation, 174 NLRB 989 (1969), Dtfco Laboratories, Inc, 172 NLRB 2149 (1968): South- ern Greyhound Lines Division of Greyhound Lines, inc., 169 NLRB 627 ( 1968). Canada Dry Corporation, 154 NLRB 1763 (1965): Texas Foundries. Inc, 101 NLRB 1642 (1952) 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel's perception of the case is too narrow in this regard, and that Silverman in fact was discharged at or about the time his protected activity began July 1. It is not necessary to the jural realitiy of discharge that it be commu- nicated to the dischargee. That the deed occurred, as an operative mental act of Kampa's, around July 1-or at least before Kampa's commitment to Smith on July 6-is indicated by these factors: (a) Kampa consistently attributed Silverman's job loss to his so-called insubordination, which began July 1, not to later being replaced. It thus is evident, to paraphrase Southern Greyhound Lines, supra,' that Respondent did not discharge Silverman to replace him, but replaced him be- cause it had discharged him. (b) Kampa told Marra before the strike that he would be laid off if he joined it, indicating that action would be taken against Marra-and, by implication, Silverman-at such time as the protected activity began. (c) According to Marra's credited testimony, when Kampa on July 8 recanted, he said Marra would be "re- hired," a word connotative of severance of Marra's-and, by implication, Silverman's-employment relationship at an earlier time. (d) Kampa placed the advertisement for a partsman July 2. This indicates that the personnel decision, whatever its character, by then had been made and was in process of implementation. In summary, it is concluded that Respondent discharged Silverman for engaging in protected activity, violating Sec- tion 8(a)(1) of the Act,' and that the discharge occurred about July 1, 1974. CONCLUSIONS OF LAW 1. By discharging Neil Silverman on about July 1, 1974, as found herein, Respondent engaged in an unfair labor practice within Section 8(a)(1) of the Act. 2. This unfair labor practice affects commerce within Section 2(6) and (7) of the Act. REMEDY To effectuate the policies of the Act, it is recommended that Respondent be ordered to cease and desist from the unfair labor practice found. Affirmatively, it is recommended that Respondent be or- dered to offer Silverman immediate and full reinstatement to his former position, dismissing, if necessary, any em- ployee hired subsequent to his discharge on about July 1, 1974; and make him whole for lost wages and other bene- fits by payment to him of money and benefits equal to that which he would have earned had he been restored to his position 5 days after he applied for reinstatement July 8. The reinstatement element of this remedy is grounded 7 Mook Weiss Meat Packing Co, 160 NLRB 546, 550-551 (1966) s 169 NLRB 628 (1968). 9It is Board policy in cases of this sort , since the remedy would not be enhanced, not to decide if the discharge also violated Section 8 (a)(3). Union Carbide Corporation, supra, 174 NLRB 989 ( 1969), In . 1; Difco Laboratories, Inc., supra, 172 NLRB 2149 (1968), In. 1; Canada Dry Corporation, supra, 154 NLRB 1764 (1965), In. 2. on the Supreme Court's International Van Lines decision,10 as applied by the Board in H. S. Knitting Mills, Inc. i 1 These cases establish that an unlawfully discharged striker is enti- tled to reinstatement, at cost of displacing anyone hired after the discharge, regardless if the dischargee was perma- nently replaced before applying for reinstatement and re- gardless if the strike was an unfair labor practice, as op- posed to economic, strike.12 The suspension of backpay liability until 5 days after the application for reinstatement is in keeping with the Board's policy of not awarding backpay even to unlawfully dis- charged strikers for periods when their services voluntarily were withheld.13 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 Respondent, BMW AutoZentrum, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a). Discharging any employee because that employee assists a labor organization by refusing to work during a strike at his or her place of work, (b) In any like or related manner interfering with, re- straining, or coercing employees in their exercise of rights under Section 7 of the Act. 2. Take the following affirmative action: (a) Offer to Neil Silverman immediate and full reinstate- ment to his former position or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing if necessary any employees hired subsequent to his discharge on about July 1, 1974. (b) Make Neil Silverman whole for any monetary losses he suffered because of the discrimination against him as is set forth in that portion of this Decision entitled "Reme- dy.,, (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- 10 N L.R B v. International Van Lines, 409 U.S. 48 (1972) i 1 21 1 NLRB 355 (1974). See also Graneto-Datsun a Graneto Company, 203 NLRB 550 (1973), In. 9 (JD) 12 Were the issues not moot, it would have to be concluded that Kampa made a sufficient commitment to Dean Smith July 6 to qualify Smith as a permanent replacement, despite the inconclusiveness of Smith 's starting date See Southwest Engraving Co., 198 NLRB 694 (1972). It would have to be concluded, further, that the strike had not by then become an unfair labor practice strike-if indeed it ever did-since the fact of Silverman's unlawful discharge had not been communicated to anyone so as to prolong the strike. 13 H S. Knitting Mills, Inc, supra, Roosevelt Roofing and Sheet Metal Works, Inc, 204 NLRB 671 (1973) Backpay shall be computed in accor- dance with F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb- ing & Heating Co, 138 NLRB 716 (1962). ° All outstanding motions inconsistent with this recommended Order hereby are denied In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. BMW AUTOZENTRUM roll records, social security payment records , timecards, personnel records and reports, and all other records neces- sary for determination of the amount of backpay due and the rights of reinstatement under the terms of this Order. (d) Post at its place of business in San Rafael , Califor- nia, copies of the attached notice marked "Appendix." 15 Copies of said notice, on forms provided by the Regional Director of Region 20, after being signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees cus- tomarily are posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by other material. Notify the Regional Director of Region 20, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 13 In the event that the Board's 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 101 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge any employee because that employee assists a labor organization by refusing to work during a strike at his or her place of work. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in their exercise of rights under Section 7 of the National Labor Relations Act. WE WILL offer to Neil Silverman immediate and full reinstatement to his former position or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing if necessary any employees hired subsequent to his discharge on about July 1, 1974. WE WILL make Neil Silverman whole for any mone- tary losses suffered because of the discrimination against him. BMW AUTOZENTRUM