Billings Chrysler-Plymouth, Inc.

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Billings Chrysler-Plymouth, Inc. and District 29, In- ternational Association of Machinists and Aero- space Workers, AFL-CIO. Case 19-CA-11466 August 26, 1980 DECISION AND ORDER BY MIEMBI RS JENKINS, PEN I O, ANI) TRUISI)DAI On May 14, 1980, Administrative Law Judge Gerald A. Wacknov issued the attached Decision in this proceeding.' Thereafter, Respondent filed exceptions and a supporting brief,2 and the General Counsel filed a brief in support of the Administra- tive Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,3 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Billings Chrysler-Plymouth Inc., Billings, Montana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph (f): "(f) In any like or related manner interfering with, restraining, or coercing employees in the ex- ' ()O May 27. 1980. he Admillstrati e Law Judge issued an Errala 2 Responident's [otlion for rhearing is denied as it is lacking in meril ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Hoard's established police not to overrule all administraltie law judge', resolulions with respect to credi- hility unless the clear preponderanlce of all of the relevant evidence oln- ince, us hal the resolulionls are incorrect. Slundurd Dr Wall Products. Ii.. 91 NLR 544 (19510). enfd. 1X F 2d 362 (3d Cir. 1951) We have carefull examilned the record and finld no basis for reversing his finding I par. I) of his recommended Order. the Administrative I aw Judge used he broad cease-anld-desist-language. "ll ally other maller " Hiotcser. he Board's plicy is that such all order is warranited onIly wherc a reponldent is show n to have a proclisity Io violate the Act, or ha% engaged ill uch egregious or idespread nlisconduct as to demon- ,trale ; getlerill tliregard for the eirtplosees' statutory rights III ntlrolt1 I'oA. 11ai. 242 NlRB 1357 (1979) We find that lithe broad illtunlcse order issued aigaillt% RCspoldeCIl i i niot sl arralled i thlis ( c;, aild sc shall liodif l the recoamenitded ()tdcr and noltice accordiigly MhtilhCr Jcllkills v:, ould award illlcsi (oil the hackpay du(u ill ccorid- allco .a.ith 11[, disetill ii Olrpia .,ttdnaal/ (orpiorulioln. 250 N R No I I I t)) 251 NLRB No. 89 ercise of the rights guaranteed under Section 7 of the Act." 2. Substitute the following for paragraph 2(a): "(a) Offer to Carl White immediate and full rein- statement to his former position or, if such position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay or other benefits suf- fered by reason of the discrimination against him in the manner described above in the section entitled 'The Remedy."' 3. Insert the following as paragraph 2(b), reletter the subsequent paragraph accordingly, and insert new paragraph 2(d): "(b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." "(d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith." 4. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYE ES POSTI:D BY ORDER OF IHI L NA IONAL LABOR R-I.ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective-bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. Wli wii I Nor discharge employees because of their union activity or because they filed charges against us with the National Labor Relations Board. BlIlL IN(S CK\RYSI.IR-I'I.YMOTItIIt. INC' 71)7 WI,: VII NOT solicit the presentation of grievances from you or suggest that we prefer to sign a contract directly with the employees, rather than with the Union, in order to dis- courage you fronl designating District 29, In- ternational Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, as your bargaining repre- sentative. WI wVllt NOT coercively interrogate em- ployees regarding the filing of unfair labor practice charges. Wl wt. N threaten employees with ad- verse treatment because of their union activity. Wti Wtllt NO'I in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the aforementioned rights guaranteed them by Section 7 of the Act. Wu; wit] offer Carl White immediate and full reinstatement to his former position or, if such position no longer exists, to a substantial- ly equivalent position, without prejudice to his seniority or other rights or privileges previous- ly enjoyed, and make him whole for any loss of pay or other benefits suffered by reason of the discrimination against him by paying him a sum equal to what he would have earned, less any net interim earnings, plus interest. Bllti INGS CHRYSL.ER-PL.YMOU H, INC. DECISION S I A Il IN I F01: I H CASE GRAI1 I) A. WACKNOV, Administrative Law Judge: Pursuant to notice, a hearing with respect to this matter was held before me in Billings, Montana, on December 4, 5. and 6, 1979.' The original charge was filed on June 13, and an amended charge was filed on June 22 by Dis- Irict 29, International Association of Machinists and Aerospace Workers, AFL-CIO (herein called the Union). On July, 31, the Regional Director for Region 19 of the National Labor Relations Board (herein called the Board) issued a complaint and notice of hearing alleging a violation by Billings Chrysler-Plymouth, Inc. (herein called Respondent) of Section 8(a)(I) and (3) of the Na- tional Labor Relations Act, as amended (herein called the Act). A second amended charge was filed by the Union on October 31, and on November 19 the afore- mentioned Regional Director issued an amendment to complaint which amended the initial complaint by in- cluding an 8(a)(4) allegation. Thereafter, on November 29, Respondent was notified of the General Counsel's in- tention to further amend the complaint at the hearing by including additional 8(a)(l) violations 2 Respondent's an- swers to the original complaint aid amendments to the ' All dItiC' IlCrIll ;tIc 1n .It7"?. i1lit'% st,.-lied 1i hc itIcrkliC 1'1 (iti nr.l ('l1i /CI' % I.ll.. llh Itl .11I l bl rlllp.llllll t.l t."llrtld h I l .fil ill' illl. lg complaint deny the commission of any unfair labor prac- tices. The parties ,.ere afforded a full opportunlity to e heard, to call. exanile and cross-examinne ,,,itnesses, aid to introdtuce relevanlt evidence. Since the close of the hearing, briefs havec been received from the (ieneral Counsel and counsel for Respondent. Upon the entire record and based on my observationl of the witnesses and consideration of briefsck submitted, I make the following: FINDtINGS ot F \CT I. J RISI)ICI ION Respondent is a Montana corporation engaged in the sale and repair of automobiles with its automobile dealer- ship and principal place of business located in Hilliigs, Montana. In the course and conduct of its business oper- ations, Respondent has an annual gross volume of busi- ness il excess of $5(X),0(K), and annually purchases aind receives automobiles and other goods and materials valued in excess of 50.0(00 from suppliers located out- side the State of Montana. It is admitted, arid I find, that Respondent is now, and has been at all times material herein, an employer engaged in commerce swithin the meaning of Section 2(6) and (7) of the Act. II. I il I AOR ORGANIZA IION IN( OI VI) It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. nit. THll UNI IR I IttOR PR \( lFS A. Isues Tile principal issues raised by the pleadings are v, heth- er Respondent violated Section 8(a)(3) and/or (4) of the Act by discharging employee Carl White. and ,.hether Respondent iolated Section 8(a)( ) of the Act by isti- tuting newv work rules arid by other acts and conduct. B. aze acl., I. The 8(a)( 1 ) allegations Michael' Krieger, a current employee of Respondent, testified that in late April. during the course of an orga- nizational campaign by the Union among Resporidcnl's employees, he was invited into the office of Rock Ham- ilton. service manager, where several individuals \nc re discussing the advantages and disadvantages of union representation. Krieger testified as folloxs regarding the ensuing conversation: I did not care to get ivolved inll the discussion, and then [Hamilton] turned to me and he said hatl Mr. (iodxin [Respondent's owner] antcd to m:ike i ,' lJlIl lllg .I 'C) ,l' l. lll cle.I, i 1111 d Nia\ 15. Ill L 11111i \\%,1 'Clll/ CtJ ;1i til ~J l0t'l \t' ll12.;lllllklL 1t',t9 ICI II[.II\Jt' , ' R"l'S llld l% c111 11\tL ' ,,, 1II I ll lllln ,l \}II ,ll, 2~ 111c' h,1 l t ;1t llJ Jl1 ld% 1 ,,, t ill isl -ilL llill.'l I I I C . 12 ' ( *-01 1 111 A' 1 tII .II 111)1 I tl ,t'[rt' }1'1It'11 708R DECISIONS OF NATIONAL LABOR REI.ATIONS BO()AR) amends and he wanted to have a meeting with em- ployees where they could bring out all the griev- ances without fear of losing their job or anything like that. He wanted to sign a contract with us without involving a third party. Hamilton's testimony implies that his remarks to Krieger were prompted by Krieger's suggestion that the Union would have been unnecessary had there existed a better relationship between Godwin and the employees. Hamilton admits replying to Krieger that "Mr. Godwin probably would have no objection to having somebody in the shop negotiate with him rather than through somebody else." Frederick Fresonke, parts manager and admitted supervisor whom Hamilton believes was pres- ent during the conversation, testified regarding different matters herein but did not corroborate Hamilton's ver- sion of the conversation. James Lewis, a current employee of Respondent, testi- fied that on or about May 15, Parts Manager Fresonke mentioned, during the course of a conversation about the Union, something to the effect that Godwin would not negotiate with the Union.4 Lewis testified that he was unable to recall exactly what Fresonke said about this, and further stated that although other subjects were dis- cussed, he could not recollect the nature of such discus- sions. Fresonke testified that during the course of group conversations he may have expressed certain opinions about the Union. However, Fresonke did not elaborate or provide specific accounts of the opinions he may have rendered. Jim Boyles, who was discharged by Respondent in June, testified that on three separate occasions prior to the election, each following a scheduled union meeting, Service Manager Hamilton asked him what had occurred at the meeting. On each such occasion, Boyles merely re- plied that the benefits of the Union were discussed. Boyles further testified that he was active on behalf of the Union and was probably wearing a union button and hat at the time of these conversations with Hamilton. Moreover, Boyles admits that on one or more of these occasions he approached Hamilton and initiated the con- versations about the union meetings. Hamilton testified that he did not inquire about what happened at any par- ticular meeting, and that during the course of the con- versations Boyles would voluntarily express his feelings or opinions about the Union or about Godwin. In June, following the election, four employees, in- cluding Krieger, were to be initiated into the Union. Krieger testified to the following statement by Godwin: He walked up to me and said that he heard there would be initiation into the union and he said he would not invest his money or join in an illegal union that hadn't been certified. Then he turned to go and he said again, "I just wanted you guys to know the facts."5 The complaint alleges that "Fresonke informed employes hal Re- spondent would nlever go union " A this time the election objections which Respondenl had iled .were being invesligated by the Regional Office and the Union had nlt yet heen certified Godwin testified that on May 16, the day following the election, as a result of a significant decline in business resulting in a financial crisis, he instructed Hamilton to prepare a list of cost-saving methods, and that Hamilton issued the list to the employees without Godwin being able to review or edit it. At a shop meeting held on the evening of May 16, at 5:15 p.m., Hamilton distributed the following memorandum to the unit employees: 1. SHOP NITE WILL BE DISCONTINUED DUE TO THE COST OF UTILITIES AND SHOP MATERIALS. 2. THE COMPANY WILL NO LONGER ALLOW CHARGING TO EMPLOYEES. 3. THERE WILL BE NO WORKING ON PERSONAL VEHICLES OR PARTS OF PER- SONAL VEHICLES ON COMPANY TIME OR LUNCH BREAKS. 4. SHOP TOOLS OR EQUIPMENT WILL NOT BE REMOVED FROM THE SHOP TO BE USED ON PERSONAL VEHICLES AT HOME. 5. THERE WILL BE NO DISCOUNT ON PARTS AND LABOR FOR EMPLOYEES. 6. EMPLOYEES WILL FURNISH THEIR OWN COFFEE, CUPS, CREAM AND ETC. 7. COFFEE BREAKS WILL BE FROM 10:00 A.M. to 10:15 A.M. AND 3:00 P.M. TO 3:15 P.M. ONLY. 8. THERE WILL BE NO PHONE CALLS TO EMPLOYEES, UNLESS AN EMERGENCY. ALL PHONE CALLS WILL BE ANSWERED ON COFFEE BREAK OR LUNCH TIME. 9. BOB HUSKY WILL BE ASSISTANT SERVICE MANAGER AND WILL HAVE ALL AUTHORITY OF SERVICE MANAGER. 10. SERVICE MANAGER'S OFFICE WILL NOT BE USED AS A THRU WAY TO RES- TROOMS OR SHOP. 11. THE CONFERENCE ROOM WILL NO LONGER BE USED FOR LUNCH PERIOD. According to the testimony of various employees, Ham- ilton handed out the document, simply stated, without explanation, that these would be the new rules, and sug- gested that the rules were not his idea. Hamilton testified that several weeks prior to the elec- tion he was requested by Godwin to determine some way to cut costs as a result of the poor financial condi- tion of Respondent. He prepared the above memoran- dum thereafter, and had planned to issue it on May 15. However, remembering that May 15 was the day of the election, he waited until the following day to issue the new rules. According to Hamilton the rules he fashioned were not specifically authorized by Godwin, and imme- diately following the issuance of the memorandum to the employees he was reprimanded by Godwin and was told to revise some of the policies which Godwin did not be- lieve would result in cost-cutting efficiencies. As a result, Hamilton prepared and distributed the following notice to the employees the next day: HII.I ANNS CHIRYSILER-PIlYMO()LIIi, INC.' ITEMS 1, 2, 5, 8. ARE REVISED AS FOL- I OWS: 1. SH()OP NITE WIL. E LEMPORARILY DISCONTINUED UNTIL. FURTHER NOTICE. 2. THE COMPANY WILL ALLOW EM- PLOYEE CHARGING AS LONG AS THE AC- COUNT IS PAID IN THIRTY DAYS. 5. EMPLOYEES WILL HAVE A 25% DIS- COUNT ON LABOR AND 10%, PLUS COST ON PARTS AS BEFORE. 8. ALL PHONE CALLS TO EMPLOYEES WILL BE TAKEN BUT PHONE CALLS MUST BE ANSWERED ON BREAK OR LUNCH PERIOD. The record shows that shop night, a time set aside each week for employees to use Respondent's premises and equipment for servicing their personal vehicles, was discontinued thereafter for about a month, and is current- ly held from 5 to 8 p.m., a reduction in hours, as there was no prior time limit: the new charge account policy was not implemented, and Respondent's prior policy re- garding the charging of parts by employees has contin- ued; employees are not now allowed to work on person- al vehicles during lunch breaks, as Hamilton believed that the prior policy of permitting such work resulted in added costs to Respondent for materials and items which were used by the employees; employees now have to furnish their own coffee, cups, and cream, because such items are no longer supplied by Respondent; the new phone call policy was put into effect; employees are no longer permitted to use Hamilton's office as a shortcut to the restrooms and water fountain as, according to Hamil- ton, this tended to interfere with Hamilton's work; and the conference room is no longer used for lunch because, according to Hamilton, the employees would not clean up the area after using it. On May 21, the following letter, signed by Godwin, was distributed to the employees: Several days ago at our meeting in the customer lounge6 I reiterated to you as honestly and factually as I could the economic condition of this Company; namely, that the loss of the Toyota franchise, result- ing in the loss of 300 new car sales and reduction of parts and service sales on both new and used Toyo- tas made it impossible for us to stay profitable and create the necessary cash flow to run our business. The loss of Toyota coupled with Chrysler Motors' failure to deliver to us saleable 1979 models until early December and a severely harsh and pro- longed winter, we ended 1978 with a huge loss. (However, I do not recall having terminated anyone without cause.) These losses have continued through March of 1979 ($34,088 for 3 months, to be exact.) e There is no further record edence of the date or details of such a meeting in the customer lounge, hut apparnllk the meeting occurred prior to the elecion Reduction of, or total elimination of some com- pany bestowed extras is long overdue simply for economic reasons and sound business practice. For this dealership to remain in business all de- partments will undergo an objective analysis dedi- cated to reducing any and all frills adversely effect- ing profits and feeding overhead. A strong effort will be made to return this store to profitability. If it is found that you are not doing your job or assigned duties as proscribed by your supervisor with the personal motivation to do your part to help make this dealership profitable again, we will ask for your resignation. The context of this letter is almost exactly what I said to you at our last meeting, which was interpret- ed for you as a "scare tactic." I assure you, one and all, this should be received as fact if we are to turn prolonged periods of loss into profit, a continuing business, and jobs. Employee Carl White testified that on May 24 in the office of Body Shop Foreman Bernie Irsik, White asked Irsik, "Did you hear that they fired Larry [Byers]?"7 Irsik replied, according to White, "Yes, we got rid of one of those agitating son-of-a-bitches." Later, after re- viewing notes he apparently made at the time of the con- versation, White testified that Irsik responded, "[W]e got rid of one of those agitating sons of bitches after the election: too bad it wasn't before." Irsik specifically denied any conversation of this nature. 2. The discharge of Carl White Carl White began working for Respondent as a combi- nation bodyman and painter on December 6, 1978, and was terminated on June 7. 1979. He was visibly active on behalf of the Union, wearing a union button and hat, and openly spoke in favor of the Union with his fellow em- ployees. He was subpenaed by the Union to attend a rep- resentation hearing on April 17, and attended and active- ly participated at union meetings. White and the four other bodymen in Respondent's employ worked on a straight commission of 45 percent of the total labor esti- mate for each vehicle, and were allowed to work largely at their own pace and maintain their own hours, appar- ently within general limits set by Respondent. Respond- ent admits that White was a very experienced and capa- ble employee, and in terms of volume of work during his entire period of employment, White earned only $10 less than the highest paid bodyman. On May I, White requested a meeting with Godwin to discuss the work assignments he had been given by his supervisor, Body Shop Foreman Bernie Irsik. Godwin invited Robert Ryan, secretary of Respondent and also Respondent's attorney, to the meeting. White complained that because he was conspicuously prounion Irsik was discriminating against him by not assigning him a fair share of the work. White apparently attempted to sup- 7 Bers as knov, n h) Respondenlt to he an actis union adherent It is not contended by the (ielneral Coilncl hati H crs' discharge was for other than ust ause 701)) 71() I)IICISI()NS ()F NAIO()NA I .A13()R R IAIONS B()ARD port this contention with certain work orders. odswin said he would look into the matter. White expressed his feeling that if he was compelled to make a decision be- tween receiving sufficient work or assisting the Union., he would opt in favor of the former alternative. White apparently believed that he was continuing to be assigned less than his proportionate share of the work, and on May 25, some 10 days after the election, the Union filed an unfair labor practice charge on his behalf, amended on May 31, alleging that since February 1979, upon learning of White's union membership and observ- ing him wearing a union button, Respondent "cut down severely on Carl White's work." 8 White testified that a day or two prior to his dis- charge, Godwin approached him and the following con- versation occurred: Mr. Godwin came up and he said, "What in the goddamn hell do you mean filing these charges?" and I said, "Before it goes much farther, maybe you should talk to Bernie." He said something to the effect I've talked to Bernie, and I said, "Well, I've talked to Bernie, and I think you ought to talk to him," and somewhere in the conversation, Bernie walked up-whether he came clear up or not, I can't recall, but he did walk up, and Mr. Godwin asked me if I was going to drop the charges. I said I was considering it, and I stated that Bernie had been trying to assign me a little better work and that I was considering it. Again just before he left, he asked me if I was going to drop the charges, and I said I was thinking about it. Godwin acknowledges that a conversation occurred regarding the aforementioned charge and testified that he recalls telling White that he was capable of doing a good job, and that he had no justification for complaining about the work allocation. Moreover, Godwin testified that he may have asked White whether he was going to withdraw the charges. Scott Kautzman, a former em- ployee, testified that he overheard part of the conversa- tion and recalls Godwir saying, "Mr. White, what in the hell are you doing to me," but was unable to hear the remainder of the conversation because an air compressor suddenly started up. On June 4, Respondent filed a statement with the Re- gional Office in support of its election objections stating, inter alia. that: Billings Chrysler-Plymouth, Inc. requests the right to take the discovery depositions of the union officials named above, together with the depositions of James Boyles, Larry Byers, Carl White, Jerome Collins and Mike Huevare for the purpose of sup- porting the charge of coercion, intimidation and of the union plant or agent placed into the employee group by the union. The complaint herein does n allege that While was discriminated againsl in this regard White continued to wear a union hutton rflloiltg the election until the time of his termination Scott Kautzman testified that about a week prior to White's discharge Irsik assembled the body shop employ- ces, and asked them if they ',,ere being harassed by White. Irsik went on to state that if the employees sub- mitted a letter to this effect. Respondent may be able to discharge White.9 Kautzman testified that in response to Irsik's question he mentioned that White was not diligent in cleaning the paint booth or equipment, and that White wanted to work only on Chrysler vehicles and preferred smaller jobs. Kautzman stated at the hearing that al- though he had no disputes or arguments with White, he was present during a quarrel between White and employ- ee Ron Metzger, and that White had "quite a few" verbal confrontations with employee Curtiss Rhodes. Kautzman further testified that there were times when White did not take proper care of certain shop tools so that they could readily be used by other employees; that White had a habit of singing which would disturb Rhodes; and that White would often engage employees in conversation, thus disrupting their work. Irsik testified that he did not remember the aforemen- tioned discussion with the body shop employees con- cerning White, but admitted that such a discussion was "possible." Moreover, Irsik admits receiving a note con- cerning White from employee Dale Mysch on the day of and immediately prior to White's discharge, indicating that "White was putting pressure on him and kind of harassing him" about joining the Union. However, Re- spondent did not produce this note or proffer it as a reason for White's discharge. Ron Metzger, called as a witness by Respondent, testi- fied that he and White started having disputes after White had filed the aforementioned unfair labor practice charge, but had no difficulty with White prior to that time. Metzger explained that: Well, your Honor, after the rest of the shop had found out that Carl had filed a suit, actually every- body was unhappy about it, and nobody was willing to help him with anything any longer. They wouldn't talk to him or anything. That was the reason for it .... Carl asked me why everybody was treating him the way that they were. I told him, I says, there was a little profanity involved, and I told him that that was the reason, that be- cause of the suit, and he said, then Carl wanted to take me out in the alley and fist fight, and I told him that I wouldn't stoop to his level for that. And then Carl told me, he aid, "O.K., if that's the way you feel, I'll handle you accordingly," and that was the end of it. JUDI)GE WACKNOV: Now, did you ever report that to management? THE WITNESS: No, sir. JUDGE WACKNOV: And approximately when was this? THE WITNESS: I would say approximately within a week of his discharge. ° A few days later. according to Kautzman. Irsik came out of his office with a piece of paper in his hand, and indicated that he had the letter he had requested IlL..INGS '(II\Sl.ltR-'l.YNI)L' Il. INC 7 1 Jul)1(l W \CKNO: Well, hell to your knowl- edge did that conme to mlllaelnrllt's attention9 Tit WII N-SS: I don't believe it ever did, sir. JUl)il. WACKNOV: Did vou ever tell anyone from management about that dispute between you and Mr. White? THt WI TNSS: Not that I remember, sir. t Curtiss Rhodes, another bodyman called by Respond- ent as a witness, testified that White would seem to in- tentionally seek ways to irritate or annoy employees, and therefore Rhodes attempted to avoid any communication or contact with White throughout the period of White's employment. There is no evidence that Rhodes specifi- cally complained to Irsik about White. Respondent contends that the primary reason for White's discharge was his failure to perform work on two automobiles in a timely fashion during the months of April and May. One car, a Plymouth Duster, came in for repair on May 9, and was assigned to White. Irsik testi- fied that he advised White that the car had been prom- ised to the customer on Friday of that week, but the repair work was not completed until the following Tues- day. White testified that if there was a deadline on com- pleting the repair work he would have been so advised, but was not, and that Irsik never spoke to him about this matter until the time of his discharge. Respondent did not proffer any documentary evidence supporting Irsik's testimony that the car had been promised to the custom- er on a certain date. The other car, a Plymouth Horizon. came in between April I and 15, and the last day White performed work on it was on May 25. There had been extensive body and mechanical damage to the car, and when the vehicle was first assigned to White he advised Irsik that there ap- peared to be frame damage. Extensive work was done to attempt to straighten the frame, but this procedure only caused further damage, and upon determining the frame could not be repaired, a new frame rail was ordered. The new frame rail was not received until April 30, and only then could the work on the vehicle commence, as virtu- ally all of the work was dependent upon the frame rail being in place. Ron Metzger, a bodyman, testified on behalf of Respondent that the repair of the vehicle would customarily take about 5 weeks, which is the ap- proximate amount of time, from the date the frame rail was received, that it took White to complete the job. Moreover, White was not given a deadline on this partic- ular vehicle, and was assigned to work on other vehicles. On the morning of June 7, Irsik and Service Manager Hamilton approached White, and handed him the follow- ing letter signed by Godwin: Mr. Carl White, On a number of job assignments during the past several months you have, for reasons unknown, de- liberately extended the completion of the work. This attitude alienates the customer who pays your salary and mine and also ties up valuable work area unnecessarily. Because of the abose rasons you arc tcrnlinated effective this date. June 7, 179. Please complete your .%.ork in process and flag all time due you by 4 P.M so that the business office may process your final check. You have not been cmploed for a continuous 12 months, therefore you do not qualify for vacation pay. Later that morning, White asked Irsik to tell him what jobs he had not completed in a timely fashion. Irsik re- plied that White had delayed the completion of a job in- volving the repair of a "window channel" on a vehicle. White advised Irsik that the job in question was per- formed by another bodyman, not White. Then Irsik men- tioned the Plymouth Duster, and White denied that the work on this vehicle had not been performed in a timely fashion. According to White, Irsik mentioned no other jobs and advanced no other reasons for White's dis- charge. Irsik corroborated this testimony of White. C. A4nalysis and Conclusions 1. The 8(a)(1) violations I credit the testimony of former employee Michael Krieger and find that Service Manager Hamilton advised Krieger that Respondent would prefer to deal directly with employees by providing a receptive forum for their grievances and by signing a contract with the employees without the intervention of a union. Krieger's testimony is, in effect, corroborated by Hamilton, who admits sug- gesting to Krieger that Respondent would probably have no objection to negotiating directly with the employees. Moreover, assuming arguendo that Hamilton has a more accurate recollection of the conversation, Hamilton's tes- timony does not indicate that Krieger initiated the sub- ject of direct negotiations with Respondent, but rather that the idea emanated from Hamilton in response to Krieger's remarks that a good relationship did not exist between Respondent and the employees. I find that by such statements, Respondent violated Section 8(a)(1) of the Act, as alleged. See NMulti-National Food Service. Divi- sion of Schwan's Sales Enteiprises, Inc., 238 NLRB 1031, 1032 (1978): Ring Metals Company, 198 NLRB 1020 (1972); Merle Lindsey Chevrolet, Inc., 231 NLRB 478, 483 (1977); Uarco. Incorporated, 216 NLRB 1 (1974). Employee Lewis testified that Parts Manager Fresonke mentioned something to the effect that Respondent would not negotiate with the Union. Lewis' testimony was admittedly vague, and was inconsistent with the complaint allegation herein, and I find that Lewis was unable to recall this conversation with sufficient certain- ty to warrant the finding of a violation. Therefore, I shall dismiss this portion of the complaint. Similarly, I shall dismiss the complaint allegation that Service Manager Hamilton coercively interrogated em- "' Respondent does not contend that it was aware of this incident prior 11o the hearing Moreover, it appears hat White's suggestion of a fist fight may hase been prompted by Metzger's use of profanity tloard W'hite, as indicated by Metzger', teslimon5 712 )DECISIONS ()F NAINAII. I.AIt()R Rl.AIONS O()ARI) ployee Boyles about what occurred at various union meetings. The record establishes that some, if not all, of the conversations about union meetings were initiated by Boyles, a visibly active union adherent, and Boyles' ab- breviated testimony concerning only one segment of the conversation, apparently out of context, does not provide a sufficient foundation upon which to base the finding of a violation. See The Times Publishing Company 231 NLRB 207, 212 (1977); .lrvin Industries Inc., 226 NLRB 925 (1976); B & G Chrysler-Plymnouth, Inc., and its succes- sor Bill George Chrysler-Plymouth, Inc., 186 NLRB 282, 284 (1970). The complaint alleges, and counsel for the General Counsel argue in their brief, that the above-enumerated rule changes instituted by Respondent the day following the election were unlawfully motivated in retaliation for the employees having selected the Union as their collec- tive-bargaining representative. Respondent presented tes- timonial evidence in support of its position that the changes were not retaliatory, but were economically mo- tivated, and designed to cut costs due to economic neces- sity. There was no evidence presented by the General Counsel that Respondent's financial circumstances were other than what Respondent claimed them to be, and Re- spondent's conduct in initiating the changes immediately following the election does not appear inconsistent with its economic defense. Moreover, it appears that prior to the election the employees were made aware of Re- spondent's financial circumstances, and following the election, the employees were advised that the rule changes were economically motivated. Although some of the changes are clearly not for the purpose of cutting costs, such as precluding the use of the conference room for lunch, or prohibiting the use of Hamilton's office as a short cut to the rest room, neither do such rules appear to be retaliatory, in or without justification. And while certain other changes would appear to result in minimal cost-saving efficiencies, the projected savings generated by the rule changes, collectively, do not appear to be in- substantial. On the basis of the foregoing considerations, I con- clude that the record evidence is insufficient to substanti- ate that Respondent instituted the rule changes as a re- taliatory measure in violation of Section 8(a)(1) of the Act, and therefore I shall dismiss this allegation of the complaint. Following the election, and during the pendency of election objections filed by Respondent, Godwin sug- gested to Krieger, who was about to join the Union by paying an initiation fee, that he should realize that the Union had not yet been certified and that it may be wise to wait until the Union was officially designated as the employees' bargaining representative. There is no indica- tion that Krieger refrained from joining the Union at the time, nor was Godwin's statement couched in the form of a threat of repercussions by Respondent should Krieger not heed Godwin's advice. I conclude that God- win's candid suggestion to the effect that, under the cir- cumstances, Krieger should delay joining the Union until he was assured of union representation, is a statement of opinion falling within the protection of Section 8(c) of the Act. Cf. Erick R. Weber and Bernadine T. Weber, Co- Partners. d/b/a WbervS Bakery, 211 NLRB 1, 15 (1974). I shall therefore, also, dismiss this allegation of the com- plaint. White testified that Irsik spoke in derogatory and hos- tile terms about Larry Byers who had been discharged, stating that Respondent had discharged "one of those agitating son-of-a-bitches" who favored the Union. While Irsik denied that such a conversation occurred, Irsik's testimony regarding the matter of attempting to cause employees to furnish Respondent with reasons for dis- charging White, discussed inyra, was less than candid, and reflects unfavorably upon Irsik's veracity. I therefore credit White, who appeared to have a clear recollection of this conversation and who otherwise appeared to he a credible witness, and find that by such a statement, al- though purportedly directed toward Byers, Irsik implicit- ly conveyed the threat of hostility and possible repercus- sions by Respondent against White, who also was active- ly supporting the Union. See Henriksen, Inc., d/b/a Gibson Discount Center, 191 NLRB 622, 628, 629 (1971), enfd. as modified 481 F.2d 1156 (5th, Cir. 1973); Atlantic Steamers Supply Co., Inc., 188 NLRB 282, 286 (1971); Wilker Bros. Co., Inc., 236 NLRB 1371, 1372, 1377 (1978). I credit the testimony of White, corroborated by the credible testimony of Kautzman who overheard a por- tion of the conversation, and find that Godwin, who ad- mitted the substance of such conversation, expressed his strong displeasure with the unfair labor practice charge filed on White's behalf, and repeatedly asked White if he intended to withdraw the charges.'' Such interrogation is coercive in nature, and clearly tends to inhibit and in- terfere with employees' rights under the Act to file charges with the Board. I, therefore, find that by such conduct, Respondent violated Section 8(a)(1) of the Act as alleged. See Donald E. Hernly. Inc., 240 NLRB 840 (1979); Narragansett Restaurant Corp., 243 NLRB No. 30 (1979), ALJD, sec. III, E. 2. The discharge of White While the June 7 letter of discharge only mentions White's failure to timely complete unspecified jobs as the reason for his discharge, Respondent has also advanced at the hearing a second reason for terminating White, namely, that he engaged in harassment of other body shop employees, and disrupted their work. All but one of the body shop employees testified herein, and although a composite of their testimony re- veals that White, from the beginning of his employment, may have exhibited a somewhat wry sense of humor which at least some of the employees found offensive, each denies complaining to Irsik or any representative of management about White prior to the meeting which Irsik held. Irsik admitted that from the beginning of White's em- ployment, White expressed his preference to work on Chrysler manufactured vehicles on which extensive work was not required. There is no showing that Re- ' While White's charge. after investigatlion. was apparently deemed to lack merit, the record does not establish that the charge was not filed ill good faith BILLINGS CHRYSLER-PLYMOUFtH. INC. 713 spondent was reluctant to accede to White's request in this regard, or that White refused any work assignments. Indeed, Irsik testified that it was common and acceptable for bodymen to express a preference for a particular type of work, and Irsik attempted to accommodate each em- ployee in this regard. Thus, Irsik acknowledges that he would assign Metzger the larger jobs, pursuant to Metzger's request. Kautzman credibly testified that about a week prior to White's discharge, which would have been shortly after Respondent received the unfair labor practice charge filed by White alleging discriminatory treatment, Irsik as- sembled the body shop employees in an attempt to get them to provide reasons to support the contemplated dis- charge of White Respondent did not attempt to show that such a meeting did not take place or that Kautz- man's testimony should be discredited. Apparently, the responses received by Irsik merely constituted a reiter- ation of White's behavior which he had exhibited, and Irsik had apparently observed since the beginning of White's employment. Following the meeting, Irsik an- nounced that he received a letter from bodyman Dale Mysch which would support the discharge of White, yet Respondent did not produce this note at the hearing.' 2 Irsik testified, in abbreviated fashion, that although he did not remember the aforementioned meeting, it was "possible" that he held such a meeting. Moreover, as mentioned above, Irsik admits receiving a note from Mysch concerning White. Irsik impressed me as a knowl- edgeable individual, and the record attests to his ability to recount the details of matters which antedated and succeeded the meeting regarding White. Under the cir- cumstances, I do not believe that Irsik's memory regard- ing such a significant matter was impaired, but rather that his alleged failure of recall concerning this matter was contrived in order to conceal facts which might be inculpatory to Respondent. No other explanation for Irsik's memory lapse appears tenable under the circum- stances. The disputes or quarrels which White may have had with his fellow employees largely were the result of per- sonality conflicts which had been apparent since White initially became employed. It does not appear that White's alleged talkativeness was of concern to Respond- ent,'3 as the record shows no warnings to White about this, and the extent of White's production would other- wise show that he did not waste time by engaging in protracted conversation. The record indicates that the relationship between White and his fellow employees became strained as a result of the unfair labor practice charge which he filed alleging that he was not receiving a proportionate share of the work assignments, and thereafter the body shop employees ignored him and re- fused to offer him assistance when needed, apparently because the employees believed that White, through the 12 White also received a cryptic note from Mysch about the end of May or early June, il hi. h MyNsch adised hat his dire financial straits would intensify 'a hen vie go on strike." Further. this note threatened White with physical harm for bringing n he Uinion While reported the matter to the police 1' Irsik admits that he obserxcd While sitilng ith employee, eeral months after White began l orklng foir Respondent unfair labor practice charge, was attempting to acquire more than his fair share of the work. Not only did Re- spondent not attempt to ease such tension among the em- ployees, but rather Respondent through Irsik, exacerbat- ed the situation by encouraging the employees to pro- vide reasons to justify the discharge of White at a time when Respondent was well aware of the antagonism for which the employees harbored against White. However, the record does not show that White, during this period, harassed or disrupted the work of employees, as con- tended by Respondent. Respondent's contentions regarding White's alleged slowness of work is not supported by the record. Thus, during the entire course of his employment, White was one of the two top producers in the body shop, and it does not appear from an examination of his monthly earnings that his work was slowing down.' 4 Moreover, the number of vehicles per month on which White worked does not reflect a work slowdown. ' s Nor does the evidence presented by Respondent sub- stantiate its contentions that White deliberately extended the completion of the work on two automobiles. There is no documentary record evidence to support Irsik's testi- mony that the Plymouth Duster was promised to the customer on a certain date, or that White was so ad- vised, and I credit White that he was never told of such a commitment. Moreover, the credible record evidence indicates that the extensive work on the Plymouth Hori- zon would customarily take about 5 weeks from the time the frame rail was received, and it appears that White performed this work within that time period. 6 More- over, it is of great significance that Irsik admittedly did not mention this latter matter when furnishing White with the particular reasons for his discharge on June 7. In summary, I find that the reasons presented by Re- spondent for discharging White are not supported by the (4 Thus, White's earnings per month were as tillo', s Dec 1978 Jan 1979 Feb 1979 Mar 1979 Apr 1979 May 1979 Total $1,409 63 $1.21 16 $1.359 10 S1,563 20 $1,406.8 1 S1.317.74 S8.26764 is White sporked on1 22 chicles in December, 16 in January, 20 in February, 21 in March. 37 i April. 25 in May. and 16 from June 1 7 1i I discount the tesllmon, y of emploee Rhodes, ho expressed a strong dislike of White, that this , ork should hase taken oinl 2 3 dlay, Irsik, at Otne point, estimaled that Whiele c.ld he completed the work in about I eek, assuming White spellt the entire time working OI11i on this ehicle loAser. Irsik dlid not eplain 'Ahe he failed to ii- struct While to complete the ehicle althlb hat time frame. or h he coltinued Io assign While a substiantial ain(ult Olf additional skork. as the rc.erd sho, s. hroighlii th rllol tih t M5a 5 714 l)[ CISIONS (OF NAlI()NAI. I.AB()R RIAlIONS BI()ARI record evidence, and I am therefore constrained to find that the alleged reasons for White's discharge are mere pretexts. proffered to conceal Respondent's true motives. It is clear that Respondent's president, Godwin, was highly upset with White for causing the Union to file the unfair labor practice charge on his behalf, and only sev- eral days prior to White's discharge berated him for filing what Giodwin believed to be a totally unjustified claim. Concurrently therewith, Irsik assembled the em- ployees and solicited criticism of White for the purpose of effectuating his discharge. As a result of the foregoing considerations, I conclude that Respondent discharged White for the reasons alleged in the complaint, namely White's activity on behalf of the Union and the filing of an unfair labor practice charge on his behalf by the Union. I therefore find that the discharge of White is violative of Section 8(a)(3) and (4) of the Act,'7 as al- leged. See First National Bank of Pueblo, 240 NLRB 184 (1979); Magic Chef Inc., 181 NLRB 1136 (1970), enfd. 443 F.2d 374 (6th Cir. 1971); Asheville Steel Company, 202 NLRB 146, 153 (1973), enfd. 487 F.2d 1398 (4th Cir.); Industry General Corporation, 225 NLRB 1230, 1233 (1976). CONCI USIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 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 has violated Section 8(a)(3) and (4) of the Act by unlawfully discharging employee Carl White for causing the filing of unfair labor practice charges and for engaging in union activity. 4. Respondent has violated Section 8(a)(1) of the Act by coercively interrogating employees regarding the filing of unfair labor practice charges, by soliciting the presentation of grievances, and suggesting that it would sign a contract directly with the employees in order to discourage employees from designating the Union as their collective-bargaining representative, and by threat- ening employees with the possibility of adverse treatment as a result of having engaged in union activity. 5. Except as found above, Respondent has not engaged in other unfair labor practices as alleged. Tlm R MI)YN Having found that Respondent engaged in certain unfair labor practices, I recommend that it be required to cease and desist therefrom and from any like or related conduct, and to post an appropriate notice, attached hereto as an Appendix. Moreover, it is recommended that Respondent make whole employee Carl White for any loss of pay as a result of the discrimination against him, and reinstate him to his former position of employment, without prejudice to his seniority or other rights and privileges. Said back- pay is to be computed in the manner prescribed in F W. Woolworth Company 90 NLRB 289 (1950), and Florida SI 8()(4) )1' Ile Atl prllllhbits tli disch.arge of emnplo s ,, for filing chalrgc" Or giing Iclsilolll n 1III1 Ihc Act See I'vcrag'l IHroIluhr uturAu. Ira. 2 N RtI 5'. R l i) (19731t Steel Corporation. 231 NLRB 651 (1977). See, generally, Ixis Plumbing & Hleating Co., 139 NLRB 716 (1962). Based on the foregoing findings of fact, conclusions of law. and the entire record herein, and pursuant to Sec- tion 10(c) of the Act, I hereby issue the following rec- ommended: ()RDER '" The Respondent, Billings Chrysler-Plymouth, Inc., Billings, Montana, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging employees for causing the filing of unfair labor practice charges, or for engaging in union activity. (b) Soliciting the presentation of grievances in order to discourage employees from designating the Union as their collective-bargaining representative. (c) Suggesting to employees during the course of an election campaign that the Company preferred to sign a contract directly with the employees. (d) Coercively interrogating employees regarding the filing of unfair labor practice charges. (e) Threatening employees with the possibility of ad- verse treatment as a result of having engaged in union activity. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them under Section 7 of the National Labor Rela- tions Act, as amended. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer reinstatement to employee Carl White and make him whole in the manner set forth in the section of this Decision entitled "The Remedy." In this connection, Respondent shall preserve and. upon request, make avail- able to the Board or its agents, for examination and copyinlg, all records, including the payroll records of other employees, necessary to analyze and compute the amount of backpay due. (b) Post at its Billings. Montana, facility copies of the attached notice marked "Appendix. " l!' Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by an authorized rep- resentative of Respondent, shall be posted by Respond- ent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily '" In th ecin no exce ption% are filed as' prositletl bh Sec 110246 of IthI Rulcs ind Regulaiionlls ) Ihe Nalllonall L. .h Relitionu s It)lard. the firldillng. iicllctl i, oll illl a rcillllllld,(di ()tdCIi litiu .' ll 111. .1i prol tlel ill Sc 1()2 48 tf tile R ul e .lld1 Regulationl\ . h. itIpItd .I the tloard and11 beclitne its findlinigs. ciIIlusIOTs ilitl ()rdc. ;id ill o bJectitt ,l Ihcfcto IIl bhe lrcr ll saiecd Ittr ill purploses 'i Il hi eVeill hia l this ()rdcr is entifirtcd i , ai Jtludgllelt of il Luilcd States (tourl of Appeal', tl e oturds iI te1l a l ticI telodinIig f O tl h ()rdle it' 1ltil Naltlulrll I hor Rt.iall)n iI llid " i sill adi )sti Ic l prsl- ;l 1)to i Jdgrilentl the tnited S;ILta', (Ct1lIlt ,t Appal [Ilioreing .11 ()td l ot til Lh Nilto ;lil l ithr Relatiins Irawrdt BIL.IN(iS CIRYSI.ER-PILYMI()O'TH. INC. 7i5 posted. Reasonable steps shell be taken by Respondent to (c) Notify the Regional Director for Region 19, in insure that said notices are not altered, defaced or cov- writing, within 20 days from the date of this Order, what ered by any other material. steps Respondent has taken to comply herewith.