Mission Valley Ford Truck Sales, Inc.

MISSION VALLEY FORD TRUCK SALES Mission Valley Ford Truck Sales , Inc. and Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 1101. Case 32-CA-9863 June 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On April 14, 1989, Administrative Law Judge Clifford H. Anderson issued the attached decision. The Charging Party filed exceptions and a support- ing brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions' and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions3 and to adopt the recommended Order as modified.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Mission Valley Ford Truck Sales, Inc., San Jose, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Insert the following as paragraph 1(c). "(c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 1 No exceptions were filed to the judge 's 8(a)(1) findings. 2 The Charging Party has excepted to some of the judge 's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951). We have carefully examined the record and find no basis for re- versing the findings. a We correct the judge's inadvertent statement in sec. D,1, par. 2 that the Respondent threatened Chapman with discharge. The record reflects that the Respondent threatened Miller. This error does not affect our dis- position of the case. 4 We shall modify the recommended Order to include narrow cease- and-desist language, which the judge inadvertently omitted. Virginia L. Jordan, Esq., for the General Counsel. N. Paul Shanley, Esq. (Hubbert, Shanley & Lee), of Sacra- mento, California, for the Respondent. David M. Balter, Esq. (Wylie, McBride, Jesinger & Sure), of San Jose, California, for the Charging Party. DECISION 889 CLIFFORD H. ANDERSON, Administrative Law Judge. I heard this case in trial on January 19, 1989, in San Jose, California, pursuant to a complaint and notice of hearing issued by the Regional Director for Region 32 of the Na- tional Labor Relations Board (Board) on October 31, 1988, based on a charge filed on September 12, 1988, and docketed as Case 32-CA-9863 by the International Asso- ciation of Machinists and Aerospace Workers, AFL- CIO, District Lodge No. 93, Local Lodge No. 1101 (the Charging Party or the Union) against Mission Valley Ford Truck Sales, Inc. The complaint alleges that Respondent's agent, Service Manager Bernard Chapman, threatened an employee with discharge because of his union activities and in- formed the employee he was absolutely prohibited from speaking to any other employees about the Union, in each case violating Section 8(a)(1) of the National Labor Relations Act (Act). The complaint further alleges that Respondent terminated employee Ray Miller because of his union activities in violation of Section 8(a)(3) and (1) of the Act. Respondent in its answer denies that it en- gaged in the conduct alleged to independently violate Section 8(a)(1) of the Act. Further Respondent avers that it terminated Miller for reasons independent of his union activities and therefore did not violate Section 8(a)(3) and (1) of the Act. All parties were given full opportunity to participate at the hearing, to introduce evidence, to call , examine and cross examine witnesses, to argue orally and to file posthearing briefs. On the entire record,' including posthearing briefs filed by the General Counsel and Respondent, and from my observation of the witnesses and their demeanor, I make the following2 FINDINGS OF FACT I. JURISDICTION At all times material , Respondent has been a Delaware corporation with an office and place of business in San Jose, California, where it has been engaged in the retail sale and servicing of trucks. Respondent as part of its business operations annually enjoys revenues in excess of $500,000 and annually purchases and receives goods or services from outside the state of California of a value in excess of $50,000. Respondent is therefore an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1 The transcript of the proceedings was marginal at best . Absent a motion to correct transcript I have taken the testimony of witnesses as written In many cases the grammatical and other errors appearing in the testimony, quoted infra, occurred during transcription and should not be attributed to the witnesses or trial participants 2 As a result of the pleadings and stipulations at trial the parties sub- stantially reduced the issues in dispute . Where not otherwise noted, these findings are based on the pleadings, stipulations of the parties, or unchal- lenged testimony or documentary evidence. 295 NLRB No. 89 890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD [I. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent opened its present San Jose facility in 1986 some weeks after the closure of South Bay Ford, an ap- parently similar Ford Motor Company automobile fran- chise operating at the same location . Respondent hired some of South Bay Ford's employee complement, includ- ing Service Manager Bernard Chapman, Service Fore- man John Lewis, and a number of mechanics and others in the parts and service departments. South Bay Ford's service employees had been repre- sented by the Charging Party. Respondent's employees, insofar as this record suggests , have been at all times un- represented. B. Ray Miller's Union Activities Ray Miller interviewed with Respondent in September 1987 for a mechanic's position . Chapman asked Miller if he would have any problems working in a nonunion shop.3 Miller told Chapman he would have "no gripes" as long as "the pay was proper and everyone was treated properly." Miller commenced work as a mechanic and no further discussion concerning the Union occurred until the spring of 1988 . At that time, Miller testified, rumors of an organizational campaign led to a conversa- tion between Chapman and Miller in Chapman's office. Miller testified he told Chapman he was not organizing and "unless there was a reason I wouldn't provoke the Union to come in. Or try to organize it." Chapman did not address this conversation in his testimony. Miller commenced organizing Respondent in mid-June 19884 obtaining authorization cards from the Union and distributing cards to fellow employees. There is no record evidence that Respondent knew of Miller's orga- nizational activities until July 20. On that day a general meeting was held for all mechanics and parts employees from both the day shift and the afternoon shift (which started at 1 p.m.). Service Foreman John Lewis ad- dressed normal shop matters at the 1 p.m. meeting. Fol- lowing his address, Lewis asked the assembled employ- ees if there was anything else to be discussed . Miller tes- tified that another employee suggested they "get the Union business out of the way and talk it over now." Lewis recalled that at the end of his remarks Miller an- nounced : "If anyone wanted to sign Union cards that he had them in his tool box." Lewis testified that he an- nounced to the employees: [I]t would probably be a good time for everyone to discuss it together since it was difficult, you know, to get both shifts together at the same time, and that I had knowledge of discussion about the union. 0 Miller had earlier been an employee of South Bay Ford and had served as union steward during the time Chapman was service manager. 4 All dates hereinafter refer to 1988 unless otherwise indicated Lewis told the employees to limit their discussion to 10 to 15 minutes and to return to work when done. Lewis left the employee meeting and went to Barney Chapman's office. Lewis reported to Chapman the cir- cumstances of the meeting including the specifics that re- sulted in the employees then continuing discussion of the Union. Chapman told Lewis, in Lewis' recollection, that the period Lewis had allowed the employees' to discuss the union should "pretty much be a maximum." Chap- man did not address this conversation in his testimony. After a few minutes Lewis returned to the employee meeting and told the employees to go back to work and finish their discussion later "off the clock." Miller re- called that Lewis told the men to go back to work be- cause "Barney Chapman didn't want them talking Union business on company hours." Miller testified that just after the meeting's conclusion, Chapman approached Miller and another employee and told the other employee to go back to work. Chapman in some heat said to Miller: [H]e didn't want me talking to any more other employees ever again as he's punching me on the chest with his finger, saying that you once told me that you were not going to have any involvement with the Union, and at that time I said , no, not unless there was a reason for it . And then he re- plied, I ought to just fire you right now or termi- nate you . I don't remember the wording . . . I just threw up my arms and said, whatever. That was the end of the conversation. Chapman did not address this conversation in his testi- mony. Chapman was the General Counsel's first witness and, although present through the trial, was not recalled as a witness thereafter. C. The Events Concerning Miller's Termination 1. July 20 Apparently, a salesman noticed that a new Ford Econ- oline Van which was part of Respondent's new truck in- ventory and parked in Respondent 's new vehicle area had a pool of oil under it as if some part of its mecha- nism was leaking . A repair order was written on the ve- hicle by Tom Hamilton, then a service writer for Re- spondent, on the morning of July 20 with a notation: "engine leaking oil." Hamilton did not testify respecting his role in preparing the repair order. Miller testified that he received the repair order in a normal manner early in the afternoon of July 20 from John Lewis who reported to him that the vehicle was in the new truck lot and that a salesman had reported a leak. Miller testified he located the van in the lot and no- ticed a puddle of transmission fluid running out from un- derneath the truck. Miller started the van and, with some difficulty because of low transmission fluid level, drove the van into his service bay. The bay used by Miller is located next to and visible from both Lewis' workstation and Chapman's office. Miller testified that he completed a standard transmis- sion removal and reinstallation which required that he MISSION VALLEY FORD TRUCK SALES 891 obtain new gaskets from the parts department . Consistent with normal practice, he turned in the old gaskets with the completed paperwork at the time he finished the job. Miller entered on the repair order the time he required to complete the job : 2.8 hours.5 Miller testified that after finishing the job he was given another repair order and commenced work on that assignment . Miller testified that the Econoline repair was conventional and that standard procedures were applied throughout . He knew of nothing out of the ordinary regarding the assignment or its completion on July 20. 2. July 21 Lewis testified that it was one of his duties to review completed repair orders . He reviewed Miller's repair order for the Econoline Van on the morning of July 21 along with other repair orders done on July 20. Lewis testified that, given the work described-the removal and reinstallation of the transmission , the reported time spent-2.8 hours-made him suspicious. Although Lewis readily described Miller as a "good mechanic," the time taken by Miller to do the job was, in Lewis' view, "too short." Lewis described the 2.8 hours listed as necessary to complete the transmission work as "substantially below the average time or even the published time that it should take." Lewis testified that at the time he reviewed the repair order he did not consult the Ford Manual which sets forth times allowed by Ford Motor Company in paying its dealers for various tasks undertaken in the perform- ance of warranty work, i.e., "the published time it should take." Rather Lewis testified he relied on his experience in his position and his knowledge of the amount of time required by Respondent's mechanics to do the same or similar work at the facility . Lewis testified he believed the Ford authorized time for the work in question was 3.5 hours but that as a matter of practical reality that time was not readily achieved . He estimated the shop av- erage for the work was 4 to 5 hours and the fastest he had seen the work accomplished was 3.8 hours . Allowed to examine the Ford manual on the witness stand, Lewis concluded that Ford allowed 3.3 hours for the work at issue. Acting on his suspicions Lewis testified that he re- trieved from Respondent's file system the used parts Miller had submitted with the completed repair order. After examining the parts Lewis concluded they could not have come from a new vehicle, but were rather from a transmission with substantial mileage. Lewis testified he also inspected the van in the new truck lot and discov- ered that, although the van was not then leaking fluid of any kind, the underside of the van bore no evidence of having been disturbed . Since it was necessary to leave visible scratches, marks, and other evidence of removal and reinstallation when repairing such a truck's transmis- sion, Lewis concluded that the transmission had never been removed and that Miller's assertions of work done and time required on the repair order were bogus. 5 The repair order bears a beginning time stamp entry , 15:42, and a completion time stamp entry , 18:30. Lewis testified that at this point he returned to his reg- ular duties until Chapman arrived at work . Lewis then went to Chapman's office and reported to Chapman that he had a repair order that was a "kink " and needed to be investigated. Lewis testified that Chapman told him to verify his suspicions with several other employees. Chap- man recalled that Lewis came to him and reported that he had a repair order with an "impossibly short time," i.e., a reported time for accomplishing a warranty task which could not in fact be done in so short a time. Chap- man told Lewis not to raise the matter with him then but to take others out to the truck to verify that the work had not been done. Lewis brought numerous employees to the van and had them inspect it for evidence that the transmission had been removed. The employees' unanimous conclu- sion was that the van unambiguously indicated that the transmission had not been removed nor the bolts and other transmission underpinnings disturbed. After this process was completed, Lewis described his views and the opinions of the other employees to Chap- man who made his own inspection . When Miller arrived at work Chapman took him to the van and there con- fronted him with the proposition that the transmission had not been removed. The conversation continued in Chapman's office where Chapman produced the parts Lewis had retrieved which allegedly came from the van. Miller's version of the conversation differs in significant respects from Chapman's. Ultimately Miller was dis- charged for falsifying the repair order and the instant charge was filed. D. Analysis and Conclusions 1. The allegations of independent violations of Section 8(a)(1) of the Act The General Counsel alleges that Chapman, an admit- ted agent of Respondent, told Miller he was absolutely prohibited from speaking to any other employee about the Union and, further, threatened to discharge Miller because of his union activities . The General Counsel's factual contentions are supported by the testimony of Miller quoted in full, supra. Respondent attacks the credibility of Miller, however, Chapman did not testify respecting the statements Miller attributed to him. The undisputed sequence of events lends credence to Miller's testimony and Miller's credibility was not such that his unchallenged attributions fall of their own weight. I find the conversation occurred as testified to by Miller. Given the credited statements, it follows further that Respondent violated Section 8(a)(1) of the Act by threat- ening Miller with discharge for his union activities. Tell- ing an employee he "ought" to be fired in the context presented here clearly tends to be coercive. NLRB v. U.S. Industries, 701 F.2d 452 (5th Cir. 1983). Chapman's broad order to Miller not to discuss the Union with any employee "ever again" goes far beyond any legitimate restriction an employer may make on employee union ac- tivities at the workplace and therefore also violates Sec- tion 8(a)(1) of the Act. Cf. Predicasts, Inc., 270 NLRB 1117 (1984). 892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chapman's remarks were made in context that sug- gests he believed that Miller had earlier bound himself not to undertake union organizational activities among Respondent's employees . The events described above, in- cluding Miller's uncontradicted version of his earlier statements to Chapman regarding his intentions respect- ing union organizing, show that Miller's earlier promises not to organize were not unconditional . Even had Miller made earlier unconditional promises to refrain from orga- nizational activity, such promises would not constitute a defense to Respondent's conduct here. The unenforcabi- lity of a so-called yellow dog contract and the fact of such a contract's being contrary to public policy was es- tablished by Federal statute well before the passage of the Act.6 2. The 8(a)(3) and (1) allegation concerning the discharge of Miller In trying and arguing their cases the parties were well aware of the Board's analytical framework for mixed motive discharge cases established in Wright Line, 251 NLRB 1083 (1980), approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). In Wright Line, supra, 251 NLRB at 1089, the Board established the following two-step process: First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct. It is appropriate therefore to consider first the General Counsel's prima facie case and then consider Respond- ent's defense. a. The General Counsel's prima facie case The General Counsel asserts that Miller was an admit- tedly excellent mechanic in no apparent difficulty with his employer until the meeting of July 20 at which he was openly identified as the union activist in an ongoing union organizing campaign. Immediately thereafter, the General Counsel argues and I have found supra, Re- spondent's agent Chapman angrily prohibited Miller from ever discussing the Union with other employees and threatened to discharge him because of his union ac- tivities. Within perhaps an hour of these events, Miller was as- signed a repair order which he testified he completed without difficulty or incident turning in the completed paperwork consistent with normal practice. The follow- ing day Miller learned that his repair work on the Econ- oline Van the previous day was so suspicious that Re- spondent investigated his submitted repair order and found it fraudulent. Miller was then immediately dis- charged for the purportedly fraudulent work. Respond- ent had never had a previous "incident" involving a falsi- fied repair order. The General Counsel argues this series of events shows the strong probability that Miller was discharged for his union activity and, further , the strong probability that the "incident" purportedly the basis for Miller's dis- charge was a pretext initiated and concluded solely to cloak the true, illegal reason for Miller's discharge. The General Counsel 's factual contentions are either admitted or based on uncontradicted testimony. The General Counsel's case establishes: (1) Respondent's knowledge of Miller's union activities, (2) Chapman's animus against employee union activities generally and particularly involving Miller whom Chapman apparently believed had assured him he would not engage in such activities, (3) threats by Chapman to Miller that he "ought" to fire Miller because of his union activities, and, finally, (4) the remarkably close timing between Chapman's learning of Miller's activities, Chapman's threat to discharge Miller, the onset of the repair order investigation, and Miller's discharge. Based on all the above, I find the General Counsel's prima facie case is established within the meaning of Wright Line, supra. b. Respondent's defense Having found the General Counsel has established a prima facie case, it is appropriate as contemplated by the Board in Wright Line, to assign Respondent the burden of proof as to its affirmative defense that Miller was dis- charged for business reasons unrelated to and independ- ent of his union activity . The heart of Respondent's de- fense and the matter primarily litigated at the trial was the asserted misconduct which Respondent maintains re- quired the termination of Miller . Respondent took the position at the time of Miller 's discharge and has main- tained consistently thereafter that Miller was terminated because he had submitted a falsified or fraudulent repair order representing that work had been done on a motor vehicle which had not in fact been done . This conduct, argues Respondent, caused Miller's discharge and would have done so even if Miller had never engaged in union activity. The General Counsel does not argue , nor could she on this record, that a mechanic's falsification of a warranty repair order, i.e., the representation that significant work had been done on a vehicle which had not in fact been done, is not an offense justifying termination . Thus, the issue here is not whether or not the punishment fits the crime at all or whether or not the asserted crime was a pretext raised to justify an otherwise unjustifiable dis- charge. Even thus narrowed, there remain two related elements of Respondent's defense which merit separate analysis. The first element is the basis or lack thereof for initiation of the investigation of the work underlying Miller's repair order of July 20. Respondent asserts the submitted repair order was so unrealistic in its purported repair times that further inquiry was natural if not com- pelled. The General Counsel challenges this factual con- tention and argues the lack of any reasonable basis for in- vestigating the repair order undermines Respondent's de- fense as a whole.7 The second element of the defense is r Thus, the General Counsel argues on brief 6 Norns-LaGuardia Act, 47 Stat. 70 (1932) 29 U.S.C. § 101 et seq. Continued MISSION VALLEY FORD TRUCK SALES 893 Respondent's assertion that its investigation proved with- out reasonable doubt that Miller falsified the repair order. This element of the defense pits the testimony of the employee witnesses of Respondent concerning their inspection of the van and the conclusions that could rea- sonably be drawn from their observations against the direct testimony of Miller respecting what he did when repairing the van. (1) Lewis' initiation of the investigation of Miller's repair order John Lewis served as a service foreman under South Bay Ford for some years and, after a brief period with Respondent in a mechanic's position, he resumed his former position as service foreman." The General Coun- sel did not allege in her complaint nor contend at trial that Lewis was a supervisor within the meaning of Sec- tion 2(11) of the Act or otherwise an agent of Respond- ent. I find therefore that Lewis was not an agent of Re- spondent. This finding is important to resolution of the case because there are essentially three different findings which may be made with respect to Lewis' initiation of the investigation . First, if Lewis is credited in full, his in- vestigation was initiated entirely because of Miller's repair record entries and the General Counsel 's argument that the entire investigation was tainted from its incep- tion fails. Second, if it were found that Lewis entered into a conspiracy with Chapman to initiate an investiga- tion where none could be justified, neither the investiga- tion nor its purported results could be used to justify Miller's termination. Respondent's defense would fail at this stage and need not be further considered. A possible third interpretation of events, however, turns on Respondent's responsibility for Lewis' conduct and motivation. If Lewis initiated his investigation in whole or in part because of Miller's union activities but did so on his own, Respondent is not liable for that im- proper motive unless Respondent either knew or should have known Miller's union activity was the reason for Lewis' initiation of his investigation . Analogizing to the doctrine of the fruit of the poisonous tree in criminal law, Respondent would have been unable to assert or otherwise rely on the result of the repair order and van investigation as a basis for discharging Miller if Respond- ent bore responsibility for an illegally initiated investiga- tion. Since Lewis is an employee of Respondent rather than a supervisor or other agent of Respondent , the Gen- eral Counsel must establish not just that Lewis initiated his investigation of Miller because of Miller's union ac- tivities, but that Chapman was involved in the tainted de- cision, was aware of Lewis' improper motivation or should reasonably have been aware of it. As the evidence does not support Respondent's claim that the time listed on the repair order obviously alerted it to a possible problem, General Counsel contends that Respondent's entire "investigation" comes under a cloud ; if you cannot trust the original motive, you cannot trust the subsequent investigation (G.C. Br. 10). 8 Lewis identified his title as "Service Foreman." Chapman used the title "First Shift Foreman." Counsel for Respondent on brief refers to Lewis without citation of authority as "Service Writer." I accept the title "Service Foreman " Lewis' testimony that he was struck by the impossibil- ity of Miller's recorded time for removing the van's transmission is not susceptible to direct contradiction in- asmuch as it is testimony regarding Lewis' subjective motivation. Further, Lewis made it clear that his opin- ions regarding the time entry on the repair order were based on his work experiences generally . He did not con- sult the Ford manual or relied on a particular mechanic or mechanics' history with the same job. Thus Lewis' testimony is not directly challenged by argument about either the manual or employees' specific work experience with similar work. The General Counsel and Respondent litigated at some length both the total Ford manual time for the work de- scribed on the repair order and the experience of Re- spondent's mechanics in doing the same tasks . Respond- ent's employees testified that the time actually required was generally in excess of 4 hours. Miller testified that he regularly accomplished the tasks in under 3 hours and reported that fact on repair orders for the assigned jobs. The General Counsel argues that an adverse inference should be drawn against Respondent for not producing these repair orders at trial. I have considered all the above testimony and argu- ment as well as the record as a whole. I find that it is simply unnecessary to resolve all the apparent discrepan- cies raised. This is so because, even resolving the direct evidentiary conflicts in a manner most favorable to the General Counsel, the entire record does not rise to a level sufficient to convince me that Lewis did not be- lieve on July 21, when he reviewed Miller's repair order, that the 2.8 hour entry was "too short," but rather that he was anxious to cause the discharge of Miller because of his union activities and was hoping to uncover any type of nonconformity with rules or procedures which could be used to discharge Miller . This determination is based in part on a favorable view of Lewis' demeanor, in part on the view that Lewis' expressed opinion was not at fatal variance with either the manual entry or the tes- timony of at least some witnesses regarding the time re- quirements of the transmission work and, finally, in part on the absence of significant evidence that Lewis bore Miller ill feelings as a result of his union activities." More important to a resolution of the case however, I find the record clearly insufficient to hold Respondent accountable for an illegally motivated investigation even were the evidence sufficient to so support such a finding with respect to Lewis' motivations. First, there is no sig- nificant evidence suggesting that Chapman and Lewis conspired to initiate a staged investigation . Second, there is no evidence which would charge Chapman with either knowledge or constructive knowledge of any antiunion motive by Lewis in initiating his investigation of Miller's work. There is no suggestion that Lewis spoke with Chapman about the matter until Lewis had questioned 9 Lewis at the meeting on July 20 allowed the employees to discuss the union showing at least as of that time less than open hostility to employee union activities. While it may be argued that Chapman's comments to Lewis when Lewis met with him during the employee union discussions may have engendered animus in Lewis against Miller, the argument is in- sufficient without additional evidence of Lewis' animus. 894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the repair order, pulled the parts and inspected the van. When they did speak about the matter upon Chapman's arriving at work on the morning of July 21 , Lewis in- formed Chapman not only that he suspected Miller of misreporting the time necessary for the repair but that he also believed that the reported repair work had not in fact been done on the van at all. Chapman did not ask Lewis why he had initially questioned Miller's repair order, but there is no evidence that Chapman should have suspected Lewis had been acting other than on le- gitimate grounds. Given these findings, I conclude that Respondent, through its agent Chapman, took Lewis' report at face value and thereafter conducted additional investigation of the repair order and the Econoline Van, not because of Miller's union activities , but as part of its normal busi- ness practices. I reject the arguments of the General Counsel that the investigation was a sham, ab initio, to provide a pretext for Miller's termination for union ac- tivities or that Respondent was directly involved in initi- ating the investigation by Lewis or knew or should have known that Lewis' motives were malign . Accordingly, it is appropriate to turn to the evidence and argument re- garding the alleged misconduct of Miller. (2) The investigation of its results Lewis testified that once he determined to investigate Miller's repair order he pulled and checked the used gas- kets and other materials turned in by Miller at the con- clusion of his repairs . Lewis concluded that the parts submitted by Miller could not have come from a new ve- hicle.' ° He then located the vehicle in question and ex- amined its underside . Forming the strong opinion that the truck had not had its transmission removed, he re- ported his views to Chapman who directed him to obtain other opinions. This was done and the unanimous view of the other inspectors was that the vehicle had not had its transmission removed . As the General Counsel sum- marizes on brief: "Respondent produced 7 witnesses who testified that they looked at the truck in question on July 21 and saw that no repair work had been done on the transmission." Chapman considered these reports and consulted with his superiors. When Miller arrived at work Chapman took Miller to the van and challenged him regarding the appearance that the transmission had not been removed. The two then went to Chapman's office where Chapman showed Miller the parts Lewis had given him as having been submitted by Miller at the conclusions of the re- pairs. Following discussion, Miller was fired by Chap- man for falsifying the repair order . Respondent later sold the vehicle involved , but recalled the vehicle in January 1989 for further inspection to determine if a particular plastic part or plug remained resident in the transmission. Respondent adduced unchallenged evidence that the part was in fact still in the vehicle's transmission when it was 10 There was no dispute that the parts examined by Lewis and ad- dressed by various witnesses at the hearing could not have come from a new vehicle Indeed , Miller both on July 21 and at the hearing did not disagree. Rather, he asserted the parts he was shown on July 21 and at the hearing were not the ones he turned in with his repair order on July 20. opened in January 1989. Respondent adduced further tes- timony that the van's transmission could not have been removed and opened by Miller or anyone since its initial installation as part of the manufacturing process because whenever a transmission is opened after its installation during the manufacturing process, this part is removed. Thus argues Respondent the presence of the part in the transmission after July 20 is additional evidence that Mil- ler's reported work on the van had not in fact been done. The General Counsel challenges the observations made by the mechanics and service personnel who exam- ined the van on July 21 and who testified at the hearing. She also challenges the witnesses' credentials, experience, and expertise arguing that these individuals based on their inspections on July 21 could not determine with any degree of confidence if the transmission had ever been removed from the van. She similarly attacks Re- spondent's arguments deriving from the fact that the part was still present in the transmission when it was later opened . Against this indirect or circumstantial evidence, the General Counsel strongly urges the credibility of Miller's direct testimony of what he did to the van on July 20. Miller testified that he made the repairs as de- scribed on the repair order in the time noted . Thus he asserted under oath that he removed the transmission from the van, replaced the necessary seals and gaskets and reinstalled the transmission. Miller suggested the part Respondent witnesses testified to as always removed from a transmission on its initial field opening, in some instances will and in the instant case did remain in the transmission after he opened and reclosed it. I have considered all the above including the demean- or of the witnesses, the arguments of counsel based on motive, probability and the record as a whole in making the following findings. First, I find that the investigators took sufficient care to observe and did observe the vehi- cle on July 20, that they had the skills and experience to form a judgment on the question of the transmission's previous removal, and that their conclusion that the transmission had not been removed is credible . I discred- it Miller's contrary testimony not so much based on an inferior demeanor but rather because his testimony simply cannot stand in the face of the overwhelming contrary evidence. Given all the above, I find that Miller did not remove the transmission as noted on the repair order. I make this finding noting full well that Respond- ent bears the burden of proof on this aspect of the case. I also find on this record that Chapman fired Miller be- cause of the reports that Miller had not done the repairs reported on the repair order. Concluding that Respond- ent regarded a falsified warranty repair order as a serious matter warranting termination, I further find that Re- spondent would have terminated Miller based on the repair order misrepresentations even if Miller had not en- gaged in union activities. I am aware that simply accepting Respondent 's argu- ments: (1) that it is possible with a substantial degree of confidence to determine by inspecting the underside of a new van whether or not the transmission has recently been removed and (2) that skilled observers inspected the vehicle at issue on July 21 and determined the transmis- MISSION VALLEY FORD TRUCK SALES 895 sion had not been removed on July 20, does not resolve many loose ends in the case. Thus, for example, such a determination does not explain how the transmission went from apparently leaking on July 20 to not leaking on July 21 . I have considered the General Counsel's ar- guments supporting her position based on this and other factual improbabilities in reaching the findings above. I do not believe, however, that it is necessary to resolve all uncertainties in this matter once the determination has been made that Miller did not do the repairs noted on the repair order and that Chapman believed this was the case when he discharged Miller. 3. Summary and conclusion a. The independent 8(a)(1) allegations I have sustained the General Counsel 's factual and legal arguments and found merit to the complaint allega- tions that Respondent through Chapman violated Section 8(a)(1) of the Act by telling Miller not to speak to other employees about the Union and by telling Miller that he ought to fire him because of his union activities. b. The 8(a)(3) and (1) allegation I have found that the General Counsel sustained a strong prima facie case that Respondent terminated Ray Miller because of his union activities . Assigning the burden of proof of Respondent, I further found that Re- spondent would have discharged Miller even if he had not engaged in union activities . More particularly, I found that Respondent's employee, Service Foreman John Lewis, initiated an investigation of the underlying circumstances of a repair done by Miller and that this in- vestigation was not caused by any act of an agent of Re- spondent and was not otherwise attributable to Respond- ent. The result of that investigation was that substantial work represented as done on the vehicle by Miller had not in fact been done. Respondent's service manager, Ray Chapman, terminated Miller as a result. Having found that Respondent has established its affirmative de- fense that it would have terminated Miller irrespective of his union activities, the General Counsel's allegations re- specting Miller's termination are without merit and will be dismissed. REMEDY (a) Informing an employee that he was absolutely pro- hibited from speaking to other employees about the Union. (b) Threatening to discharge an employee because of his union activities. 4. Respondent has not otherwise violated the Act as alleged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edtt ORDER The Respondent, Mission Valley Ford Truck Sales, Inc., San Jose, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Informing employees that they are absolutely pro- hibited from speaking to other employees about the International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 1101 or any other union. (b) Threatening to discharge employees because of their union activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its San Jose, California facility copies of the attached Notice marked "Appendix." 12 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by Respondent's authorized representative, shall be posted for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to ensure the notices are not al- tered, defaced or covered by other material. (b) Notify the Regional Director in writing within 20 days from the date of the Order what steps Respondent has taken to comply. 11 All motions inconsistent with this recommended Order are denied If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 .48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. la If 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 Nation- al 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." Having found Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action to effectuate the purposes and policies of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act on July 20, 1988, by engaging in the following acts and con- duct: APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT tell employees that they are absolutely prohibited from speaking to any other employees about the International Association of Machinists and Aero- 896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD space Workers, AFL-CIO, District Local No. 93, Local WE WILL NOT in any like or related manner interfere Lodge No. 1101 or any other union. with, restrain, or coerce you in the exercise of the rights WE WILL NOT threaten our employees with discharge guaranteed you by Section 7 of the Act. because of their union activities. MISSION VALLEY FORD TRUCK SALES, INC.