San Jose Bavarian Motors

SAN JOSE BAVARIAN MOTORS Don Lucas International, Inc. d/b/a San Jose Bavarian Motors and Michael Steven Fulton. Case 20-CA- 10986 April 20, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On October 12, 1976, Administrative Law Judge James M. Kennedy issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed a brief in answer to General Counsel's exceptions. 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 briefs and finds merit in certain of the General Counsel's exceptions. Accordingly, the Board has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge only to the extent consistent herewith. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) of the Act by threatening employees with discharge if they sought union representation, by interrogating employees regarding union activities, and by attempting to influence voting by promising to increase health benefits.' We further find, contrary to the Adminis- trative Law Judge, that Respondent violated Section 8(a)(1) and (3) of the Act by its discriminatory discharge of Michael S. Fulton. Michael S. Fulton was hired as an apprentice in July or August 1975.2 Fulton testified that during his hiring interview with Ed Bleyer, Respondent's service manager, he was told that if he had anything to do with the Union he would be fired "so fast his head would swim." After Fulton was hired, he and four other employ- ees decided to seek union representation and Fulton went to the union office to find out how to obtain I The Board's usual practice, upon finding that an employer has violated the Act by attempting to influence voting by promising to increase health benefits, is to impose a cease-and-desist order. Therefore, contrary to the Administrative Law Judge. in accordance with standard Board procedure, we are imposing the appropriate remedial order with respect to that violation. 2 Fulton testified that he was hired sometime in July. Ed Bleyer, Respondent's service manager, testified that Fulton was hired on August 13, 1975. Respondent's documentary evidence, which includes Fulton's employ- ment application. shows August 13, 1975., to be the hiring date. Thus, the Administrative Law Judge s finding that Respondent's documentary evidence established Fulton's hiring date as July 13, 1975, is erroneous. In any event, whether he was hired on July or August 13 is of little or no significance to the issue of his discharge. 229 NLRB No. 23 representation. 3 Authorization cards were signed and the Union filed a petition for a representation election. The election, which the Union won, was held on October 27, 1975. 4 In September, during the organizing campaign, Bleyer met informally with Fulton and four other employees in the lunchroom. According to employee Martin, Bleyer said that he did not want a union in his shop. Employees Fulton, Whiteman, and Martin testified Bleyer threatened that anyone initiating or favoring a union would be fired. Bleyer did not deny this version of his statements and admitted asking the employees how they felt about the Union. Early in October, in a private conversation on the shop floor, Bleyer asked Fulton if he was a good union man, if his father was a good union man, and if he was in favor of the Union. Fulton replied that he was for the Union. During the 2 weeks preceding the election, Martin testified that Bleyer asked him approximately five times how he was going to vote. Each time Martin replied that he was uncertain as to how he would vote. These conversations also were not denied by Bleyer. On September 17 and October 6 and 16, Bleyer spoke with Fulton privately and following each session made notes about the discussions. In the first notation, Bleyer wrote that he had held numerous conversations with Fulton about being a "wiseguy" and about taking the advice given him. In the second note, Bleyer wrote that he had warned Fulton about radio playing and using a newly sold car at lunchtime, and this was his last warning. In the October 16 notation, Bleyer wrote that he told Fulton he was being laid off because of his bad work habits and complaints about his habits from other employees, but that he would be permitted to work until October 22, the end of the pay period.5 On October 16, Fulton asked Bleyer whether he had been laid off due to "my so-called attitude or because of my union affiliation." Bleyer replied, "You might say that. You could say that." A week before the election, according to Martin's testimony, Bleyer met with eight employees and stated that he was authorized by Respondent to tell them that Respondent would pay their Blue Cross benefits in full if they did not vote for the Union. 3 Fulton testified that the organizing efforts commenced in late August or early September. The Administrative Law Judge stated that the employees decided to seek representation in early September 1975, but the union letter requesting recognition is dated August 29, 1975. 4 There were challenges affecting the outcome of the election and objections were filed. The Regional Director recommended that the Board sustain the challenges, overrule the objections. and certify the Union. The Board affirmed the Regional Director's report and certified the Union. 5 Fulton testified that he was told he was being laid off on October 20, the day Bleyer promised health benefits to those employees not voting for the Union, and not on October 16, as Bleyer had testified. The Administra- tive Law Judge credited Bleyer's testimony. 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin and Fulton both testified that Fulton's response to Bleyer's statement was to proclaim loudly: "Bullshit, you can't do that. That's illegal." Bleyer did not deny their version of the incident. In December, Bleyer asked employee Whiteman whether it was Mike Fulton or Bud Littlejohn that started the Union. When Whiteman replied it was neither, Bleyer appeared surprised and asked, "Are you sure about that?" Bleyer admitted that he asked the mechanics if Fulton had instigated the drive to get the Union in. Respondent contends that it hired Michael Fulton despite adverse reports concerning his attitude by prior employers, in order to give him a chance. However, during his short period of employment, he proved to be a "troublemaker" and a "nuisance." Respondent maintains that Fulton consistently displayed poor work habits and failed to heed advice. Respondent's witnesses had observed Fulton at work and testified that from the beginning of his employ- ment he displayed bad work habits. These included loud radio playing, aimless wandering throughout the shop and office area, excessive visits to the washroom, and repeatedly ignoring Bleyer's advice as to which mechanics to seek out for assistance. Service Manager Bleyer's efforts to help Fulton, by offering counsel and advice, were unsuccessful, because Fulton chose not to listen, Respondent contends, therefore, that ample evidence exists to support the Administrative Law Judge's determina- tion that the discharge was for a lawful, nondiscrimi- natory reason. The Administrative Law Judge states that the most difficult question presented by this case is whether Respondent discharged Fulton for unlawful reasons. The crucial question, in his estimation, was whether Bleyer's patience snapped because of Fulton's union activities or because Bleyer concluded that Fulton had been given a fair chance to prove himself and had failed. The Administrative Law Judge examined the General Counsel's primafacie case and found it to be "extremely thin," consisting of some evidence of animus and "knowledge only that Fulton like others, favored the Union." We disagree with the Administrative Law Judge's characterization of the General Counsel's primafacie case as "extremely thin" and, consequently, with his conclusion that the General Counsel failed to prove that the discharge was discriminatorily motivated. The mere existence of a justifiable ground for dismissal is no defense if it is a pretext and not the moving cause.6 It is possible that Respondent had a valid nondiscriminatory reason for the discharge of 6 N.L.R.B. v. Solo Cup Companv, 237 F.2d 521, 525 (C.A. 8, 1956). 7 Broq'hill Companh, 210 NLRB 288 (1974). 8 See fn. 2, supra. Michael Fulton. It is well established, however, that a discharge motivated in part by an employee's exercise of Section 7 rights is a violation even though another valid cause may also be present.7 While the Administrative Law Judge found that Respondent violated Section 8(a)(1) by threatening and interrogating employees regarding their union views and activities, we find, that he failed to consider the full significance of these threats and interrogations in relation to the issue of Fulton's discharge. Thus, the Administrative Law Judge found the initial threat against Fulton to be "some- what remote." However, there is conflicting evidence as to when Fulton was hired, but since the Respon- dent's records show the date as August 13,8 it is most likely that the threat was made at that time, which cannot accurately be characterized as remote. But even if it were remote in time, this threat stands in the record as the sole instance of a threat being made to an individual employee. The second threat, made in mid-September to a small group of employees, clearly was not remote in time since it occurred during the union campaign. 9 Similarly the interrogations signify more than Respondent's animus. By means of unlawful interro- gation, Respondent was able to ascertain that Fulton was a union adherent. The Administrative Law Judge, in summarizing the General Counsel's prima facie case, found it to include: "Knowledge only that Fulton, like others, favored the Union .... " This finding is not supported by the record. There is no indication that Respondent was aware of the prounion sentiments or protected activities of any employee other than Fulton. Rather, it is clear that Fulton was the only employee to admit to being a union adherent, and the only employee personally threatened. Furthermore, when Fulton was being terminated he asked Bleyer if it was because of his "so-called attitude ... and/or ... [his] union affiliation." Bleyer replied, "You might say that. You could say that." The Administrative Law Judge dismissed the significance of the response by suggest- ing that Bleyer's voice inflection may have negated the apparent meaning of the statement. Speculation regarding possible voice inflection is not a sufficient basis for rejecting an otherwise plain meaning of a statement. The timing of the discharge, 12 days before the election, is yet another factor supporting our finding that the discharge was discriminatorily motivated. The Administrative Law Judge finds that the October 16 discharge "does not seem calculated to rid Respondent of a strong Union adherent," since " The threat may have had particular significance for Fulton, who was the only individual to have been personally threatened. 128 SAN JOSE BAVARIAN MOTORS Bleyer permitted Fulton to continue working until October 22. The Administrative Law Judge does not point out, however, that knowledge of the discharge might have had a substantial chilling effect on union sympathizers. The Administrative Law Judge's characterization of the General Counsel's case as "extremely thin" indicates that he did not distinguish between Re- spondent's proffered and actual reasons for terminat- ing Fulton. Fulton was hired despite the fact that Bleyer had learned from references that his work attitude was unsatisfactory. From the very beginning of his employment, Respondent claimed that Ful- ton's work habits were unsatisfactory.10 Neverthe- less, no formal action was taken regarding the problem until mid-September, after Respondent knew about the union organizing efforts. Moreover, Fulton was not discharged, in spite of alleged numerous offenses and complaints from other employees, until October 16, 12 days before the election and shortly after Respondent learned of Fulton's prounion sentiments. In view of the above, we conclude that Fulton's alleged deficiencies as an employee were used as an excuse to mask Respondent's unlawful motive in discharging him, and we find that Respondent thereby violated Section 8(a)(3). THE REMEDY Having found that the Respondent, Don Lucas International, Inc. d/b/a San Jose Bavarian Motors, has engaged in violations of Section 8(a)(3) and (I) of the Act, it is ordered to cease and desist from the unfair labor practices found and from in any other manner infringing upon the statutory rights of its employees, offer Michael S. Fulton immediate, full, and unconditional reinstatement to his former job or, if that position is no longer available, to a substan- tially equivalent position of employment, without prejudice to his seniority or other rights and privileges, and reimburse him for any loss of pay suffered as a result of the discrimination against him in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, 291-293 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and post appropriate notices. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor to We note that Fulton was not the only employee to display "poor work habits." Bleyer named three other employees who played their radios too loudly, and he testified that the radio problem existed before Fulton was hired and still existed as of the date of the hearing. " In the event that this Order is enforced by a Judgment of a United Relations Board hereby orders that the Respondent, Don Lucas International, Inc. d/b/a San Jose Bavarian Motors, San Jose, California, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Threatening employees with discharge in the event that they seek union representation. (b) Interrogating employees regarding their union activities, sympathies, and desires. (c) Directly or indirectly promising employees economic benefits to dissuade them from joining, remaining members of, or supporting the Union, or any other labor organization. (d) Discharging, refusing to employ, or otherwise discriminating against employees because of their union membership, activities, or sympathies. (e) In any other manner interfering with, restrain- ing, or coercing any employee in the exercise of the rights guaranteed them under Section 7 of the Act to engage in or refrain from engaging in organizational or other union activity. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Michael S. Fulton immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make said employee whole for any loss of pay suffered as a result of the unlawful discharge in the manner set forth in the above section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its San Jose, California, place of business copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representa- tive of Respondent, shall be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, States Court of Appeals, the words in the notice reading "Posted b) 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." 129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what steps Respondent has taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a represen- tative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity except to the extent that the employees' bargaining representative and employer have a collective-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT in any other manner interfere with any of your rights set forth above which are guaranteed by the National Labor Relations Act. WE WILL NOT interrogate employees about their union activities or the union activities of other employees. WE WILL NOT threaten employees with dis- charge because they choose to engage in union activities. WE WILL NOT directly or indirectly promise employees economic benefits to dissuade them from joining, remaining members of, or support- ing the Union, or any other labor organization. WE WILL NOT discharge, refuse to employ, or otherwise discriminate against employees because of their union membership, activities, or sympa- thies. WE WILL offer Michael S. Fulton immediate and full reinstatement to his former job or, if that job 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 suffered by reason of his discharge. DON LUCAS INTERNATIONAL, INC. D/B/A SAN JOSE BAVARIAN MOTORS DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge: This case was heard before me on June 8, 1976, at San Jose, California, pursuant to a complaint and notice of hearing issued on March 31, 1976, by the Regional Director of the National Labor Relations Board for Region 20. Said complaint is based upon a charge filed on January 12, 1976, by Michael S. Fulton, an individual (herein called Fulton). The complaint alleges that Don Lucas Interna- tional, Inc. d/b/a San Jose Bavarian Motors (herein called Respondent) has engaged and is engaging in certain violations of Section 8(a)(I) and (3) of the National Labor Relations Act, as amended. ISSUES The principal issues are whether or not: (1) Respondent unlawfully threatened to discharge employees in mid-July 1975,1 September, and early October because of their involvement with the International Association of Machin- ists and Aerospace Workers, AFL-CIO, District Lodge No. 93 (herein called the Union); (2) Respondent unlawful- ly interrogated employees regarding their union activities, sympathies, and desires in October; (3) Respondent promised to pay an additional portion of the health insurance premium to obtain coverage for dependents in order to induce employees to vote against union represen- tation; and (4) Respondent discharged employee Fulton because of his union or other protected concerted activi- ties. All parties were given full opportunity to participate, to introduce relevent evidence, to examine and cross-examine witnesses, to argue orally and to file briefs. Briefs, which have been carefully considered, were filed on behalf of both the General Counsel and Respondent. Upon the entire record of the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Respondent admits that it is a California corporation operating an automobile dealership in San Jose, California, which is engaged in both retail and wholesale sales and service of new and used automobiles. During the past calendar year its gross volume of business exceeded $500,000 and during the same period it received goods, materials, and supplies valued in excess of $50,000 directly from suppliers located outside the State of California. Consequently, it admits and I find, that it is an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. I Hereinafter all dates are 1975 unless noted otherwise. 130 SAN JOSE BAVARIAN MOTORS II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that at all times material, the Union is, and has been, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES As noted, Respondent is an automobile dealership located in San Jose, California. At this location Respon- dent sells BMW automobiles. In addition Don Lucas, the corporate president, owns and operates two other auto dealerships in the San Francisco Bay area. These are a Honda dealership, also in San Jose, and a Cadillac dealership in South San Francisco. The record is unclear regarding whether or not the Honda and Cadillac dealer- ships are separately incorporated or are separate divisions of Respondent. For the purposes of this case, it is clear that the only facility involved is the San Jose BMW dealership. The record establishes that Lucas acquired the San Jose BMW dealership in October 1974, and that the dealership had been in existence for several years, although owned by others. Edgar Bleyer has been the dealership's service manager for approximately 6 years and held that position during the events cited below. Respondent concedes that at all times Bleyer was a supervisor and agent of Respondent within the meaning of Section 2(13) and (11) of the Act. A. Interference, Restraint, and Coercion According to employee Fulton, an "apprentice" mechan- ic, he and several other service department employees, including Chuck Cox, Jim Martin, Bruce Whiteman, and Bud Littlejohn, decided to seek union representation in early September. Fulton said that on one occasion he went to the Union's offices to find out how to obtain representa- tion. As a result of his inquiry, the Union mailed authorization cards to Cox who distributed them to the other employees. These were signed and mailed back to the Union. The Union thereafter filed a petition for an NLRB representation election. The parties stipulated that such an election was held on October 27, 1975; that the Union won the election, that there were one or more challenged ballots affecting the outcome of the election, and that objections were filed. The Regional Director then issued a report in which he sustained the challenges, overruled the objections, and recommended that the Board certify the Union as the representative. Thereafter the Board affirmed the Regional Director's report and did certify the Union as the exclusive collective-bargaining representative of Respondent in an appropriate unit covering the service department employ- ees. All of the conduct alleged to be violative of Section 8(a)(l) of the Act occurred prior to the October 27 election. One incident, an allegation that Respondent unlawfully threatened to discharge an employee, is alleged to have occurred on July 20,2 well before the commencement of the organizing campaign. 2 The record evidence shows that the incident actually occurred on July 13. As the charge was served upon Respondent on January 14, 1976, it I. The threats to discharge According to Respondent's documentary evidence, Fulton was hired on July 13. On that date Fulton filled out an application form and Bleyer interviewed him. Fulton testified that Bleyer informed him of his job duties and what would be expected of him. Then they started discussing Fulton's pay rate. According to Fulton, Bleyer said that Respondent paid the same wage rate as a union shop, but was not a union shop nor had any desire to become one. Moreover, according to Fulton, Bleyer said that if Fulton had anything to do with the Union he would fire him so fast his head would swim. Bleyer did not specifically deny the conversation and admitted that he had discussed the Union with Fulton at the time he was hired. Sometimes in September, after the organizing campaign was underway, there was an informal meeting in the company lunchroom. Although none of the witnesses could testify specifically with regard to either the date or the time, it is apparent that it occurred during a break and had not been specifically called by management. Martin, Fulton, Littlejohn, Cox, Whiteman, and Bleyer were all present. Martin testified that Bleyer said that he knew there were a few mechanics in favor of the Union and that he himself did not want the Union coming into his shop and that he didn't want any talk for the Union or anyone in favor of the Union. According to Martin, Bleyer said that if anyone was in favor of the Union, Bleyer would fire him. Fulton testified that after Bleyer made a little small talk, he proceeded to tell those present that if any of them were known to have union affiliations, they would be fired. Whiteman testified that Bleyer said that there was some talk going around the shop about trying to start a union, that the Company did not approve of that, and that anyone found starting a union would be fired. Bleyer admits attending this meeting and speaking to those service department employees present. He did not specifically deny their version of the conversation; instead, he admitted asking the employees how they felt about the Union and who contacted them about it. 2. Interrogation According to Fulton, in early October he had a conversation with Bleyer on the shop floor. At the time Fulton was working on Bleyer's personal automobile. No one else was present. According to Fulton, he was in the process of reinstalling the auto's front suspension and had gone to his toolbox to get some tools. Bleyer came up to him and asked him if he was a "good union man." When Fulton did not reply, Bleyer asked if Fulton's father was a good union man. Fulton replied, "I don't see how that's any of your business." Then Bleyer asked Fulton if he was for the Union. Fulton replied that he was. Bleyer then asked Fulton why he favored the Union and Fulton replied that the Union could get him certain benefits such as retirement, medical and dental insurance. With that the conversation ended. Bleyer did not testify with regard to this conversation and it stands in the record undenied. appears that the charge was filed on the last day of the limitations penod set forth in Sec. I0(b) of the Act. 131 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin testified that during the 2-week period preceding the election he had approximately five conversations with Bleyer. Although he could not specify the exact date each of them occurred, he did say that each took place in a different area of the shop, including the lube area and the tire balancing rack. No other persons were present. In each of these conversations Bleyer asked Martin how he was going to vote in the upcoming representation election. Martin testified that he replied that he was not sure how he would vote. Bleyer was not asked for his version of these conversations and thus Martin's testimony stands in the record undenied. 3. Increased health insurance premiums Martin testified that approximately a week before the election, apparently around Monday, October 20, Bleyer met with shop employees about 8 a.m. shortly before beginning work. Present were employees Martin, Little- john, Fulton, Cox, Heinz Butzkat, Jim Dimitris, John Javanovic, and a mechanic named Lou, whose last name neither Martin nor Fulton could recall. Martin said that during this meeting Bleyer stated that he was authorized by the Company to tell the employees that if they did not vote for the Union, the Company would pay their Blue Cross benefits in full. Fulton corroborated Martin,3 saying that he had come in a little late that morning, and Bleyer had all of the service employees in Butzkat's stall and was telling them that the Company had authorized him to say that it would improve the employees' Blue Cross benefits so that the Company would pay for all of it instead of employees paying for half of it. Both Martin and Fulton testified that upon hearing this, Fulton said loudly, "Bullshit, you can't do that. That's illegal." During the week before the election Whiteman was in Los Angeles attending a factory training school. Whiteman testified that Bleyer telephoned him and told him that there was a certain automotive part that he wished Whiteman to obtain in Los Angeles and bring back to San Jose with him. Then Bleyer reminded Whiteman that there was going to be a union vote on Monday when Whiteman returned, and told him to think about what the Company had been doing for him, the different benefits and things they had given him. Bleyer also said that the Company had decided to pay the employees' family [health] insurance if the employees voted the Union out. On cross-examination, Whiteman retreated slightly, saying that Bleyer "allowed that this was going to be an incentive for us to not vote for the Union to come in. Like, one of the main things that we didn't have at the time before the Union came in was family insurance, and this would be just sort of an incentive. He didn't specifically say how the outcome of the Union would vote [sic]. He didn't specifically say that it wouldn't happen if it was voted yes." Bleyer did not deny making the statements attributed to him at Butzkat's stall by Martin and Fulton, nor did he deny Whiteman's version of the telephone call. :3 Fulton's corroboration is one of substance only bfor he was not clear with regard to the date. See discussion in fn. 6. infra. Previous to this conversation, Respondent paid that portion of the Blue Cross premium which covered employees only. If an employee wished to obtain coverage for his dependents he had to pay an additional sum for that purpose himself. Respondent's president, Don Lucas, testified that shortly after acquiring the dealership, probably in early January 1975, he asked two subordinates to call for quotes from different health insurance companies in order to determine whether or not company-paid dependent health insurance was economically feasible. He testified that he made the decision to obtain dependents health insurance throughout 1975. Yet by the time the Union made its initial demand for recognition on August 29, no specific plan had been decided upon, nor was any evidence submitted tending to show the results of Respondent's inquiry. Indeed, no such plan was placed into effect until the collective-bargaining contract was negotiated with the Union, after the Board issued its certification. Lucas testified that he did not pursue the matter after September 1975 because "unioniza- tion would take care of that situation and make the decision as to who the coverage would be through, since the Union has their own program." B. Fulton's Employment History and Discharge Prior to being hired by Respondent on August 13, Fulton, who was then 20 years old, had held trainee-type auto mechanic jobs for three different foreign car dealer- ships. None of these jobs had lasted for any significant length of time, and prior to Respondent's hiring him, he had been unemployed for 7 or 8 months. During that period, Fulton says without elaboration that he "worked for himself." His most recent formal job was with Carlsen Porsche-Audi, where he had been employed as an appren- tice mechanic, doing small chores including radio repair and new car preparation work. He worked for Carlsen from September 1973 to January 1974, at best a total of 5 months. Service Manager Bleyer made the decision to hire Fulton after reviewing Fulton's application form, and telephoning some of his former employers, including Carlsen, as well as speaking to Fulton's father. Although only implied in the record, it is apparent that Fulton's father is a well respected mechanic. Bleyer testified that after speaking to these references, he learned that Fulton had good potential as a mechanic, but suffered from an attitude problem. Bleyer said that even Fulton's father did not speak favorably of Fulton's attitude. Believing that Fulton's attitude toward employment could be corrected, he decided to give Fulton a chance, and told Fulton in general terms that he expected him to improve his attitude - particularly by working together in the shop, not talking to customers, not standing around and talking to mechanics and that Respondent expected a full 8 hours work for 8 hours pay. He then hired Fulton as an "apprentice mechanic," and set his wage at the equivalent of a second year apprentice under the union's area agreement, with which Bleyer apparently was familiar. Fulton's duties as an apprentice mechanic primarily 132 SAN JOSE BAVARIAN MOTORS consisted of new car preparations, known as predelivery inspections or PDI's, and also light mechanical repairs such as suspensions, brakes, wheels, tires, water pumps, radiators, smog certifications, and used car repairs. Respondent presented four witnesses who had occasion to observe Fulton in the shop. These were Bleyer, Kim Cochran, the parts department manager, Mike Mesaros, a parts counterman, and Nancy Farotte, the office manager. Each of these witnesses testified that from the beginning of Fulton's employment until his discharge on October 20, he displayed offensive work habits. These included loud radio playing, aimless wandering throughout the shop and office area, excessive visits to the washroom, inability to find automobiles, excessive visiting with other mechanics and, on some occasions apparently ignoring Bleyer's advice on how to perform certain jobs properly. On one occasion Fulton asked Bleyer how to perform a certain smog pump job. After Bleyer explained how to do it, Fulton went to Cox to obtain the correct tool, water pump pliers, because he did not have such a tool in his own tool kit. Cox is one of the younger mechanics, although he is considered to be a journeyman. When Bleyer saw Fulton speaking with Cox, he presumed that Fulton was asking Cox how to do the job and was thereby ignoring the specific instructions which he had just given Fulton, as well as some good advice regarding consulting the older, more experienced mechan- ics. Bleyer exploded. 4 Thus, while Bleyer may have been incorrect in his conclusion that Fulton was ignoring the specific instruction, Fulton's failure to have the pliers in his toolbox does demonstrate to some extent that Fulton indeed did display a less than meticulous attitude toward his work. The tool was a common one which mechanics normally possess, and his explanation to Bleyer was not believed. Even so, the incident did not trigger his discharge, but was merely another in a series of incidents which Bleyer tolerated. On September 17 and October 6 and 16, Bleyer held private conversations with Fulton. Bleyer was not asked to testify specifically about these sessions. Instead, his notes relating to them, and which he had placed in Fulton's personnel file were offered. The General Counsel voiced no objection to their receipt, specifically conceding their authenticity. In the first, Bleyer noted that he had held numerous conversations with Fulton about being a "loudmouth" and a "wise guy" and to take advice given him. Then he discussed an incident where Fulton had been in the general office, ostensibly looking for the parts manager.5 He also counseled Fulton about speaking to the younger less experienced mechanics, rather than taking the advice of the older more experienced mechanics. In the second session, Bleyer counseled Fulton about the fact that he had been instructed to either work by himself or with the more experienced mechanics, but had dis- obeyed the instruction and had moved a vehicle into a stall 4 The record is replete with references to Bleyer's temperament. There is no doubt that Bleyer has a quick temper and tends to shout at employees. He is a strict taskmaster. I Parts Manager Cochran and Office Manager Farotte also testified about the incident which was cited as an example of Fulton's time wasting and leaving his work area. 6 The General Counsel asserts that Fulton's "uncontradicted testimony" next to a younger mechanic (probably Cox) so that he could talk to him while they worked. Bleyer also warned Fulton about playing his radio and going to lunch in a newly sold automobile with three other mechanics. At the bottom of this note, Bleyer wrote "I told him this is his last warning." The two parts department employees as well as the office manager all related incidents involving Fulton's wasting time. In fact, Farotte testified credibly that shortly after Fulton was hired, she began making a joke about Fulton constantly being in the business office. She commented that if Fulton lasts "it's going to be a miracle because none of the other mechanics were allowed in [the office]." Bleyer's October 16 note to Fulton's file reads: Talk to Mike Fulton about his poor behavior not listening to me, does his own thing. Mech. complaint [sic] and parts dept. people, Mike stayed around. and talks all the time. Told him that I had to lay him off by 10/22/75. he agreed. did not want to work any more. he said. Accordingly, it appears that Bleyer notified Fulton of Respondent's decision "to lay him off' on October 16, but, as Fulton testified, permitted him to work until the end of the then current pay period, October 22. Martin, as noted above, testified that Monday, October 20, was the day Bleyer announced the increased health benefits during a meeting in Butzkat's stall, and that it was then that Fulton told Bleyer that such conduct was illegal. Both he and Fulton say that Fulton's words were: "Bullshit, you can't do that. That's illegal." Neither Fulton nor Bleyer could say with certainty that the incident occurred on October 20. The best Fulton could do was accept the General Counsel's statement that it occurred during the week preceding his discharge. Martin, however, did so, and there is no reason to question the accuracy of Martin's memory, particularly as White- man reported Bleyer's phone call on that subject occurred during the week before the election. Thus both Martin's and Whiteman's recollections are mutually corroborative. Nevertheless Fulton testified that Bleyer told him on October 20 that he was to be laid off. At first he testified that the conversation with Bleyer relating to his discharge was after work, but then said it was in the morning before work. On cross-examination he again testified that the conversation occurred in the afternoon, saying it was between 4 and 5 p.m. Then, as on direct, he corrected his testimony saying it took place about 9 a.m. In any event, Fulton testified that during the October 20 conversation in Bleyer's office Bleyer told him he was to be laid off due to lack of work. Fulton stated that he was surprised and asked, "Is this because of my so-called attitude, or this - and/or is this because of my union affiliation?" Fulton reports that Bleyer replied," You might shows that the conversation occurred I week before the October 27 election, i.e., on October 20, and asserts that therefore Bleyer's decision to discharge Fulton occurred on the same day that he publicly challenged Respondent's promise to add dependents to the health insurance coverage. He is mistaken. See Tr. 49-50 where the General Counsel asked Fulton to direct his attention to "the week preceding your discharge." as a foundation for Fulton's account of that conversation 133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD say that. You could say that." Fulton then testified that Bleyer said that he could continue to work to the end of the pay period, which he believed was Wednesday, October 22. Bleyer concedes that during the conversation in which he told Fulton of his impending layoff he did advance lack of work as one of the reasons for letting Fulton go. He also asserts that in addition he told Fulton those reasons shown on the memo quoted above.7 Bleyer's note on Fulton's personnel file states that Fulton was dismissed because: "Work unsatisfactory - slow on work - Troublemaker working against Serv. Manager. Had cont[inuousl talks with him." Fulton also recalled that on October 22 he had another conversation with Bleyer in his office. According to Fulton, he told Bleyer: "[S]eeing as how I was laid off due to lack of work, when business increased could I come back to work there and resume my original position?" Bleyer replied, "I wouldn't count on it, Mike. We don't want you here. We don't like the way you operate." In December, Whiteman had a conversation with Bleyer in which Whiteman, who believed that Respondent had signed a collective-bargaining contract with the Union, asked why the contractual benefits had not yet begun. Bleyer replied that he had not yet been informed that the contract had been signed. After finishing that discussion, Bleyer asked Whiteman who had actually started the Union. Whiteman recalls Bleyer asking, "Was that Mike [Fulton] or was that Bud [Littlejohn] that started the Union to come in?" Whiteman replied, "It was neither one. It was Chuck Cox who did." Whiteman testified that Bleyer appeared surprised and after a moment asked, "Are you sure about that?" Whiteman replied, "Yeah, I'm sure that Chuck was the one who brought them in." The conversation then ended. On cross-examination Bleyer admitted that after the election was over he asked the mechanics if Fulton was trying to get the Union in. Analysis and Conclusions In its brief, Respondent essentially concedes that it violated Section 8(a)(1) in the manner alleged in the complaint. Even without the concession, however, it is clear that on July 13 Bleyer told the about-to-be-hired Fulton that if he got involved in union activities he would be fired so fast his head would swim. It is also clear that in mid-September at the lunchroom meeting Bleyer told the assembled employees that Respondent was opposed to union representation and that anyone connected with the Union would be fired. Both the July 13 and mid-September threats are violations of Section 8(a)(l). The complaint also alleges that a similar incident occurred on October 8; however, no evidence was adduced with regard to an October 8 incident. Accordingly, the complaint insofar as it alleges an unlawful threat to fire employees on October 8 is unproven. The evidence also shows that Bleyer engaged in several incidents of unlawful interrogation. First, Bleyer admitted that during the mid-September lunchroom meeting he asked employees about their union activities. 8 Second, in I Bleyer and Fulton are in disagreement with regard to the date of the conversation. Fulton testified it occurred on October 20: Bleyer's memo persuades me that it was on October 16. early October he asked Fulton if he was a good union man and was for the Union. Third, 2 weeks before the election, on five different occasions he asked Martin how he was going to vote in the election. All of these incidents are interrogations violative of Section 8(a)( ). The last allegation relating to an independent 8(a)(1) violation involved Bleyer's promise to increase health benefits by adding employees' dependents to the existing health insurance plan which then covered only the employees. Both Martin and Fulton attended a gathering at employee Butzkat's stall on or about October 20, a week before the election. Both testified that Bleyer stated that he had been authorized to tell the employees that the Company would pay an additional health insurance premium so that their family members would also be covered. Whiteman, who was not present at that meeting because he was attending a training program in Los Angeles, reported that Bleyer telephoned him on approxi- mately the same date to tell him the same thing. In view of the timing of the promise, a week before an NLRB election, and in view of Lucas' inability to state with certainty that the Company had reached a firm decision prior to the advent of the Union's organizing campaign to grant this increased benefit, I conclude that Respondent has not rebutted the presumption that the promise was intended to influence the manner in which the employees voted. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1964), and Rupp Industries, Inc., 217 NLRB 385 (1975). Accord- ingly, I find that by making such promise Respondent violated Section 8(a)(l). However, I do not believe it would effectuate the purposes of the Act to issue a remedial order here. See further discussion of this in section IV, infra. The most difficult question presented by this case is whether Respondent discharged Fulton for unlawful reasons. Certainly the elements of an unlawful discharge are present. Respondent engaged in several violations of Section 8(a)(1), including two threats to discharge employ- ees for favoring union representation. It knew that Fulton was in favor of such representation via Bleyer's unlawful interrogation of him. And, the timing of the discharge closely preceded an NLRB election. On the other hand it is also clear that Bleyer hired Fulton, whom he knew had both a good potential as a mechanic and an immature attitude toward work, in order to give him a chance to straighten out. But he did not straighten out; he became a nuisance and began stretching Bleyer's patience. Fulton admits as much, saying Bleyer regularly "yelled" at him for numerous minor personality and attitude shortcomings. The question I must decide is whether or not Bleyer's patience snapped because of Fulton's union activities or because Bleyer concluded that Fulton had been given a fair chance to prove himself, but had failed. To answer this question, a close analysis of the General Counsel's case is necessary, for the burden of proof rests with him. Although Respondent made two threats to fire employees for union activities, neither is closely connected to the timing of Fulton's discharge. The first, directed at I This incident was not alleged in the complaint. Nonetheless as Bleyer admitted it, I consider myself bound to find it unlawful. 134 SAN JOSE BAVARIAN MOTORS Fulton, occurred at the time of his hire in July, well before any union organizing. The second occurred in mid-Septem- ber, a week or so after the Union's August 29 demand for recognition. It was a general threat, directed at all employees, not specifically at Fulton. Moreover, there were no threats made after that time. Instead Respondent relied on interrogation and promises of benefit. It does not appear that the Respondent fired anyone else during the preelection period. In addition, neither Bleyer nor any other management official was aware of any role Fulton played in the organizing effort. Their only knowledge of his prounion feelings were the result of Bleyer's interrogation of him. Yet Bleyer must have known that other employees also favored representation. I do not accept Fulton's assertion that his vocal opposition to Bleyer's health insurance benefit promise occurred the week before he was discharged. The testimony of Martin and Whiteman establishes that it occurred on or after October 20, and not during the previous week. Moreover, I must accept Bleyer's assertion, made in unchallenged documentary evidence, that he decided to terminate Fulton on October 16. Certainly Fulton's shaky memory is not sufficient to refute Bleyer. Thus, I must conclude that Fulton's vocal opposition to Bleyer on October 20 played no part in Bleyer's decision to fire him. That decision had been made 4 days earlier. Even the two unrebutted "admissions" made by Bleyer and reported by Fulton and Whiteman are not conclusive. Fulton said that during the discharge conversation, he asked Bleyer if he was being discharged because of his "so- called attitude . . . and/or . . . [his] union affiliation." Bleyer's supposed response was: "You might say that. You could say that." Depending on voice inflection, Bleyer's response could mean one of two things - either "yes, your union affiliation played a part" or "if you want to believe that your union activities played a part in my decision, you may, but it didn't." Likewise, Whiteman's account of his December conver- sation with Bleyer is inconclusive. Bleyer asked Whiteman if Fulton or Littlejohn was responsible for bringing in the Union. One could conclude from Bleyer's question that he suspected Fulton, or that he suspected Littlejohn, or both. Yet nothing happened to Littlejohn. It could also mean that the state of Bleyer's knowledge was so uncertain that he could only hazard a guess - Fulton was a possibility since he had been vocal on October 20 - 4 days after the critical decision. Even the discharge does not seem calculated to rid Respondent of a strong union adherent. After Bleyer told Fulton of his decision to discharge him on October 16, he permitted Fulton to work until October 22, the end of the pay period. Had Bleyer's decision been intended to rid Respondent of a prounion advocate, it is unlikely that he would have permitted a "loudmouth" like Fulton a week's access to employees to campaign for the Union and to hold himself out as a martyr. Finally, I note that between Bleyer's "last warning" of October 6 and his decision to discharge Fulton on October 16, Fulton engaged in no protected activities of which Bleyer was aware. Indeed, there is no evidence that Fulton engaged in any such conduct at all during that period. The only thing that happened was Fulton's failure to heed Bleyer's warning. His attitude did not improve. He merely continued to display an insouciant attitude, and Bleyer finally decided that he had had enough of Fulton. Thus, the General Counsel's prima facie case for Fulton is as follows: animus consisting of interrogation, promises of benefit and two somewhat remote threats to discharge; knowledge only that Fulton, like others, favored the Union, but was not known to be more active than anyone else; and timing consisting of the decision to discharge him 12 days before the election, but mitigated by Respondent's permitting Fulton to continue working an additional week. At best it is an extremely thin primafacie case. Respondent's rebuttal consists of a credible nondiscrimi- natory reason for discharging Fulton - he had finally worn Bleyer's patience too thin and an unsupported and maybe false reason - lack of work. Certainly Respondent introduced no probative evidence that work had slowed down. In fact both employees Martin and Whiteman testified to the contrary. Martin noted that three new service department employees were hired shortly after Fulton's departure. Whiteman testified that he noticed no significant change in the volume of work being performed. There is case law, e.g., N.LRB. v. Shattuck Denn Mining Corporation [Iron King Branch], 362 F.2d 466, 470 (C.A. 9, 1966), which permits me to find that a false or unsupported reason advanced to justify a discharge may be taken as evidence of illegal motive. However, I am loath to do so here, particularly where Respondent's other reasons are credible. The unsupported reason, in the circumstances of this case, appears therefore merely to have been a means to soften the blow. There is no doubt that Fulton was, from Bleyer's viewpoint as a strict taskmaster, an undesirable employee. That Bleyer had given him a chance to begin with, placed Fulton at an immediate disadvantage. Yet Bleyer still gave him a 13-1/2 week trial. When Fulton showed no sign of maturing, and was unresponsive to counseling, Bleyer simply gave up on him. Accordingly, I must conclude that Respondent has rebutted the General Counsel's weak prima facie case, and that therefore the General Counsel has failed to prove by a preponderance of the evidence, that Respondent's discharge of Fulton was discriminatorily motivated. I shall therefore recommend that the complaint be dismissed in that respect. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Credited evidence establishes that Respondent violated Section 8(a)(1) in three different ways: (1) threatening employees with discharge for engaging in union activities; (2) interrogating employees regarding their union sympathies and desires; and (3) promising them a benefit in the form of increased health insurance premiums, thereby promising coverage to the employees' dependents in order to persuade the employees to vote against union representa- tion. With regard to the first two violations I shall order Respondent to cease and desist from making such threats 135 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and from engaging in such coercive interrogation. How- ever, because Respondent never actually granted the increased premiums prior to the election, because the Union won the election and was certified as the employees' exclusive collective-bargaining representative and because a collective-bargaining contract was subsequently negotiat- ed which put the health insurance question to rest, I do not believe that it would effectuate the purposes of the Act to issue a cease-and-desist order thereon. Cf. Rosella's Fruit and Produce Co., Inc., 199 NLRB 633 (1972), and Bowling Corporation of America, Inc. d/b/a Algonquin Bowling Center, Inc., 170 NLRB 1768 (1968). Accordingly, I shall recommend that a remedial order with respect to that violation not be issued. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Don Lucas International, Inc. d/b/a San Jose Bavarian Motors, is an employer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees on July 13, 1975, and in mid-September 1975, with discharge in the event that they sought union representation, Respondent violated Section 8(a)(1) of the Act. Respondent did not make a similar unlawful threat on October 8, 1975. 4. By interrogating employees with regard to their union activities, sympathies, and desires during various dates in October 1975, Respondent violated Section 8(a)(1) of the Act. 5. When it discharged Michael S. Fulton on October 22, 1975, Respondent did not violate Section 8(a)(1) and (3) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 136