J. R. Townsend Lincoln-Mercury

National Labor Relations Board - Board Decisions

Mar 2, 1973

202 N.L.R.B. 71 (N.L.R.B. 1973)

TOWNSEND LINCOLN-MERCURY 71
J. R. Townsend Lincoln -Mercury and International
Association of Machinists and Aerospace Workers,
AFL-CIO. Case 21-CA-10692
March 2, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On November 1, 1972, Administrative Law Judge
Allen Sinsheimer, Jr., issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,' as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, J. R. Townsend
Lincoln-Mercury, San Diego, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as modified
herein.
Substitute the attached notice for the Administra-
tive Law Judge's notice.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge, particularly his failure to discredit all and
not just part of employee Aicher's testimony We find no ment in these
exceptions As Judge Learned Hand stated in N L R B v Universal Camera
Corp, 179 F 2d 749 (C.A 2), reversed and remanded on other grounds 340
U S 474, " It is no reason for refusing to accept everything that a witness
says, because you do not believe all of it, nothing is more common in all
kinds of judicial decisions than to believe some and not all" It is the
Board 's established policy not to overrule an Administrative Law Judge's
resolutions with respect to credibility unless the clear preponderance of all
of the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A
3) We have carefully examined the record and find no basis for reversing
his findings
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
202 NLRB No. 12
International Association of Machinists and
Aerospace Workers , AFL-CIO, or any other
labor organization of its employees by discrimi-
nating in regard to their hire or tenure of
employment or any term or condition of employ-
ment.
WE WILL NOT coercively interrogate employee3
concerning union membership or activities.
WE WILL NOT create the impression of surveil-
lance of union organization , activities , or meet-
ings.
WE WILL NOT threaten individual or group
reprisals or discrimination because of union
membership , organization , or activities.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exercise
of their right to self-organization , to form labor
organizations , to join or assist the.Union or any
other organization , to bargain collectively
through representatives of their own choosing,
and to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all
such activities , except to the extent such right may
be affected by an agreement requiring member-
ship in a labor organization as a condition of
employment.
WE WILL offer Henry (Pete) Chamberlin and
Edward Garcia immediate and full reinstatement
to their former employment or, if such jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges , and make them whole for any loss
of earnings they may have sustained as a result of
the discrimination against them.
J. R. TOWNSEND
LINCOLN-MERCURY
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5254.
DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR., Administrative Law Judge: This
proceeding was heard at San Diego, California, on May 23
to 26, inclusive, and June 5 and 6. The complaint issued on
March 31, 1972, and an amendment thereto was issued
May 8, 1972.1 The complaint as amended alleges violations
of Section 8(a)(1) and (3) of the Act.2 Respondent has
denied any illegal conduct. Upon the entire record,
including my observation of the witnesses, and after due
consideration of the brief of the General Counsel and
positions indicated by Respondent during the hearing, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Respondent is a company engaged in the retail sale of
automobiles with its place of business in San Diego,
California. In the normal course and conduct of said
business it derives annual gross revenues in excess of
$500,000. It annually purchases goods, products, and
services valued in excess of $4,000 directly from firms
located outside California. Respondent admits and I find
that it is an employer engaged in commerce and a business
affecting commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union, is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
At issue are certain alleged 8(a)(1) activities and the
alleged discriminatory discharge of three persons. Also at
issue is whether Respondent had knowledge of union
activities of any of alleged discriminatees at the time of
their termination and whether or not Phil Davis, the shop
foreman, was a supervisor at all times material. The
General Counsel asserts he was such and Respondent that
he was not.
B. The Facts
1. Status of Phil Davis
Although the status of Davis may not be essential to the
issue of knowledge of union activities by Respondent, such
relates thereto, and also to certain, alleged 8(a)(1) conduct
and to the discharge of Frederick Aicher.
The admitted supervisory structure (other than sales) of
Respondent is as follows: its president is Robert Town-
send; directly under him is General Manager Jene Warren;
under Warren is Service Manager Ken Boes, who,
however, reports directly to Townsend. As service manag-
er, Boes supervises the operation of all areas of the service
department, including the tire and parts department, the
body shop, and the mechanical operations. There is an
assistant service manager, John Morgan. Boes and Morgan
also act in the capacity of dispatcher which is admittedly a
supervisory position. The body shop has a manager and
assistant manager and about nine employees. There are 19
mechanics paid on a commission basis, and 6 other
employees who are hourly paid. In addition to the
admitted supervisors, Townsend, Warren, Boes, and
Morgan,3 there is Phil Davis, the shop foreman who works
in the service department directly under Boes on a salary
basis.
Davis' position is disputed with conflicting evidence as to
his functions and duties. The Respondent denies that
Davis has any supervisory capacity. The Respondent's
position is that although Davis has the title of shop
foreman, his function is to take care of maintenance, to run
the diagnostic clinic when necessary, to road test cars, and
to assist with mechanical problems. Berkeley Smith,
business manager and treasurer of Respondent, who
testified as to the supervisory structure of the Respondent
and its service area, did not include Davis as one of its
supervisors and stated that Davis enjoyed fringe benefits
like those of some employees.
Townsend testified that Davis did not have the right to
hire and fire and denied that he ever told alleged
discriminatee Fred Aicher that Davis had such power.
Davis in part testified that he did not possess any authority
and that his functions were simply that of aiding and
helping employees.
The General Counsel relies on the following to establish
the supervisory capacity of Davis. Former employee and
service writer Edward Godfrey testified that Davis could
fire employees. Godfrey based this conclusion on a
meeting at which Townsend and Warren were present and
one of them said to Davis that they were going to have to
get the cars road tested so as not to have comebacks which
were getting out of hand. According to Godfrey, Davis
made a statement that there was just so much he could do
and was told "either shape them up or we'll get somebody
else to shape them up." According to Godfrey, Davis said
he was having trouble with a couple (of men) in the shop
and was told by Warren or Townsend, "Well, if they don't
do their work properly, and they don't do what you tell
them to, get rid of them." Alleged discriminatee Fred
Aicher testified that Kenneth Boes discussed Davis'
position with him in February 1972 and told him "If you
need any help or want to know anything, ask Phil Davis."
Aicher also testified as follows with respect to a conversa-
tion with Townsend when he was fired in March: "Well,
when I was fired, I went in and asked him; I told him I had
been fired by Phil Davis and I said, `Can he do that?' and
he said, 'Yes, Phil Davis does have the right to hire and
1 An original charge was filed February 25, 1972, and a first amended
charge March 24, 1972
2 Three discriminatory discharges are alleged
3 The body shop manager is also admittedly a supervisor
TOWNSEND LINCOLN-MERCURY
fire .' And because I had just got fired by him I guess he
did.' 14
Chamberlin and Davis testified that Davis' approval was
necessary for a mechanic to order any warranty parts for a
job and that Davis would have to initial such an order
before it would go through. Davis also testified he has a
part in ordering and requisitioning shop supplies, which
consist of his ascertaining "what tool it is" and then
referring the matter to Boes to handle. He also meets about
once a month with Boes to discuss what supplies need to be
ordered. Charles Hutchison, a tuneup technician and prior
hereto shop foreman, testified that if equipment is out of
order Davis is called and is in charge of getting it repaired.
Hutchison also testified that with respect to cars that he
had road-tested, he would call Davis because ". . . I will
want someone in authority to recheck my work so they're
not just taking my word for it; you might say to get me off
the hook to make sure it 's right."
Davis has been with Respondent for about 19 years. He
punches a timeclock, although he is on a salary, and is not
paid for holidays. Davis became the shop foreman when
Charles Hutchison left that position. Hutchison testified
that he understands Davis is the shop foreman, that Davis
took his place and does the same type of work that
Hutchison did when he was shop foreman. Hutchison
testified that as shop foreman he had terminated employ-
ees and had recommended hiring and discharging of
employees. However, Hutchison could not recall firing
anyone, and didn't believe he had hired anyone during the
most recent time he was shop foreman from April 1969 to
December 1970. Hutchison said he recommended that two
employees be fired, but that Boes didn't let them go
immediately although he did eventually.
As shop foreman, Davis regularly relieves the dispatcher
at lunchtime as does Boes. During the period involved
herein, Davis spent a substantial amount of time working
in dispatch. The dispatcher's position is usually manned by
supervisors. Hutchison testified he considered Davis had
authority to rule on the work and see it was done right and
that in flagrant cases calling for automatic dismissal, Davis
would have authority to let a man go. Aicher testified he
considered Davis to be his boss. Aicher also testified
credibly that Davis gave him orders as to work to do and
Boes also gave him orders. Godfrey and Hutchison
testified in substance that they considered Davis to control
and direct the work in the service department. Also as shop
foreman, Davis has the responsibility of checking out the
work of the mechanics on road tests, and either approving
it or sending it back for reworking. Davis' decision is
generally accepted as final. However, in the latter connec-
tion it is not clear whether this is because he has authority
or because his judgment is highly regarded. According to
Hutchison, Davis can and does grant employees time off
from work. Hutchison said he requested and immediately
was given time off by Davis (who did not consult Boes)
about 6 months before the hearing. Hutchison also testified
he usually asks Boes for time off.
4 The issue of Aicher's "firing" will be discussed post As for Aicher's
testimony, this as set forth, supra, was denied by Townsend I am here
crediting this testimony of Aicher, whom I observed carefully, although I
am not crediting certain of his testimony post for reasons set forth
5 Davis also testified'
73
Davis testified he has no power to exercise any judgment,
that he is another employee who punches a timeclock, and
in essence all he does is to be helpful at times in the work
he performs, including road-testing and diagnosing autos.
However, Davis admitted he did collect and distribute
timecards, that on occasion he saw to it that employees
performed their work satisfactorily, reporting to the
dispatcher (who may be Boes, Morgan, or now Hank
Heeber) when he saw employees standing around and not
performing work.5 Davis asserted that this was really
another interest to see that employees got work and made
money. Davis testified in connection with circumstances
leading to Aicher's termination that Aicher was standing
around doing nothing, that Davis inquired of Aicher as to
what Aicher was doing and why he wasn't at work, that he
had shown Aicher how to punch the timecard, and finally
went with him to Boes when Aicher in response to Davis'
question indicated he wasn't sure whether he wanted to
work or not. This will be considered further hereafter.
Davis also in order to perform certain painting on
weekends had inquired of the men as to who was available.
Although Boes showed up during part of the time, it is
evident that the only one in charge was Davis, although he
tried to make it appear that no one was in charge.
However, he did testify:
TRIAL EXAMINER: Who directed the people or who
was in charge of this painting project?
THE WITNESS: Well, I guess-I guess you could say I
was more or less in charge of it.
Davis also said Boes stopped by for about 10 minutes the
first Saturday but didn't recall seeing Morgan or Town-
send. Davis also admitted that he had to break in new
employees, and tell them what to do.
Although in some instances herein I am not crediting
Aicher, I am crediting him with respect to Davis' authority
or apparent authority, and also crediting Godfrey and
Hutchison. I am not crediting the testimony of Boes and
Davis that Davis had no authority. This is based not only
on my observation of the witnesses, but on all of the
circumstances surrounding Davis' duties and functions, as
well as other incidents involved herein, concerning Boes,
Davis, and Townsend, which I do not find credible,
including their denials as to knowledge of or concerning
union activity prior to the terminations of any of the
alleged discriminatees. I am accordingly finding that Davis
both possessed and appeared to have authority as a
supervisor including authority to terminate employees and
to take charge of the work. In so finding, I have recognized
that Boes and Morgan both were supervisors of the service
operations. I find that while Davis may not have been a
principal supervisor he exercised such supervisory authori-
ty as to the firing of employees and as to the direction of
the work as to make him a supervisor under the Act, and I
so find.
TRIAL EXAMINER' What concern of yours was whether Mr. Aicher
was working or not'i Where did this fit into your job function9
THE WITNESS What part of it was my concern was when he's
wandering around, he's bothering other help in the shop and they
wasn't getting their particular work done
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Evidence of company knowledge and alleged
8(a)(1) conduct
Respondent's officials and witnesses, Townsend, War-
ren, Boes, Morgan, and Davis, denied any knowledge of
union activities until after alleged discnmmatee Pete
Chamberlin was terminated on February 22 or 23 under
circumstances discussed post. They also denied engaging in
any acts in violation of Section 8(a)(1).
According to alleged discriminatee Fred Aicher, on
Thursday, February 17, General Manager Jene Warren
started a conversation in the new-car parking lot, that
ended in Warren's office. Warren asked him what he knew
of the Union to which Aicher replied he did not know
anything. Aicher testified Warren then told him about how
the Union was bad and would take away money he worked
for and give long hours. Aicher then testified:
... He also went on to say that he knew there was
Union organizing going on and he knew that Pete
Chamberlin was the head of it. [Emphasis supplied.]
He also went on to say that if he was me-if he was
me, I should not attend the meeting coming up because
Jene Warren- Excuse me-because Jene Warren
-Not Jene Warren-because Bob Townsend and Ken
Boes would be there. And not to mention the
conversation to anyone; that he would talk to me later.
Aicher further testified:
Q. Do you recall anything else?
A. No sir.
Q. Did Mr. Warren, or did he not, mention
anything to you about what would happen if the Union
came in?
A. Yes, he did.
Q. What did he say:
A. He told me if the Union did come in, that
him-I guess meaning the Company-would sniff out
anyone that had anything to do with the Union and that
would be the end of it. [Emphasis supplied.]
According to Aicher a few days after a union meeting
which was held February 18, Warren again talked to him
about the Union. Aicher said the conversation was
somewhat hazy and "didn't ring a bell right now." Aicher
then testified:
Q. Did Mr. Warren, or did he not, mention any
employees' names to you at that time?
A. Yes, he did.
Q. Whose name did he mention?
A. Pete Chamberlin, Ed Garcia, Bob Weber, a few
others; I don't remember the other names.
Q. Do you recall what he said about these people,
if anything?
A. That he knew that they had been to the Union
meeting. He had had proof that these people had
appeared at the Union meeting, and he also had proof
that I had been there. [Emphasis supplied.]
Aicher further testified:
Q. Now, do you recall whether or not he men-
tioned having seen you talk to anybody?
A. Yes, sir, he did.
Q. What did he say in that regard?
A. He said he had seen me talking to Pete
Chamberlin and he wanted to know if it had anything
to do with the Union.
And I said, "No, it didn't. We were talking about
cars that Fred Roberts had built and Pete, I guess, was
helping him."
Q. Did you tell him anything else, or did he say
anything else to you?
A. He told me that he knew Pete was the head of this
organizing the Union . [ Emphasis supplied.]
Subsequently on cross-examination , Aicher , after repeating
most of the foregoing, testified:
A. Well, it just doesn ' t come into my mind just yet.
He told me that he did know that there was Union
organizing going on , and it had better stop or a few
people would be out of jobs. He did not mention any
names. [Emphasis supplied.]
Q. And during this conversation, Mr. Warren
didn ' t mention any employees by name?
A. I'm pretty sure he did ; but I wouldn 't say yes or
no right now.
The latter, while substantially consistent with his prior
testimony , is in part inconsistent with respect to the names
previously listed on direct examination by Aicher, supra,
when in responding to a question of whose names did
Warren mention , Aicher said:
A. Pete Chamberlin , Ed Garcia , Bob Weber, a few
others; I don't remember the other names.
Aicher also testified that Townsend questioned him
about the Union . Once Townsend asked him what he knew
about the Union and he replied "Nothing." The second
time in Townsend 's office , Townsend asked him what he
knew about Pete Chamberlin and the Union . Aicher
testified he said as far as he knew Pete was against the
Union . Townsend told him he thought he was lying and:
... He says, "I have proof that you and Pete are
both in the Union-are trying to organize a Union and
that you have appeared at a meeting."
Aicher further testified that Townsend said : "If you hear
anything else; to let him know ." On cross-examination
Aicher testified:
TRIAL ExAMINER: Just what did Mr . Townsend say to
you about Pete Chamberlin:
THE WITNESS : Well, first off , he asked me what I
knew about Pete and the Union.
I told him nothing ; as far as I knew Pete was against
the Union ; he didn ' t have anything to do with it.
Then he called me a liar and told me that he had
proof that Pete was the head of the Union drive.
[Emphasis supplied.]
Aicher also testified that Boes spoke to him about the
middle of February and asked what he knew of the Union and
he replied that he didn't know anything.
According to alleged discriminatee Edward Garcia at the
time he was terminated on February 18, Boes kept asking
him, "what 's going on around here" and Garcia responded
he did not know what Boes meant . Body Shop Manager
Walter Gansberg , an admitted supervisor , testified as to a
TOWNSEND LINCOLN-MERCURY 75
conversation with an employee, Bruce Lemm, in which
Lemur said, "Well, they had a Union meeting last night."
Since the only union meeting indicated in the record was
held on February 18, this would place this conversation as
of Saturday, February 19. [Emphasis supplied.]
Aicher testified that Davis discussed unions twice. The
first time was in Davis' pickup truck on the Saturday
morning after the union meeting which was the evening
before.
According to Aicher, Davis asked him that February 19
what he knew about the Union and Aicher replied
"nothing." Aicher testified Davis then asked how the union
meeting went that was held at Kings Inn the night before.
Aicher testified he said, "I guess it went all right." Davis
then told him the Union would give him bad hours and
take his pay. Aicher testified that 3 or 4 days later he had
another conversation with Davis at the wash rack.
According to Aicher, Davis asked what he knew about the
Union. Aicher said he knew nothing. Aicher then testified:
... He told me that he knew that I, Pete, and a few
others, had attended the meeting . He knew that Pete was
running the organizing for the Union. [Emphasis sup-
plied.]
And he went on to tell me about how the Union was
bad.
Q. What did he say in that regard?
A. He told me that the Union would take money
away that you would work for and they would give you
bad hours.
Employee J. R. Lewis testified he was asked by Davis
what he thought about the Union and replied he really
didn't know and was not a union man. According to him,
Davis said, "Yeah, I know you didn't go." Davis also
questioned Neftali Olivo concerning the Union a week
after Chamberlin was fired. According to Olivo, Davis
said, "What do you think about Pete?" and then "What do
you think about Union?" Olivo said, "I never heard it
before." [Emphasis supplied.]
According to Pete Chamberlin on February 21 about
9:30 a.m., he asked Davis to road-test a car. During the test
Davis asked him how everything was going and when
Chamberlin said "pretty good" Davis said, "what's pretty
good." Chamberlin asked ". . . What do you want to
know?" Davis then asked "what's going on around the
shop here?" Chamberlin said the employees had had a
union meeting and "everybody wants pretty much to go
union ." Chamberlin told Davis that he had been elected
inside representative for the Union to represent the
mechanics and get them all signed up and he had got quite
a few people signed up and was still doing so at work, etc.
Davis told him the Union wouldn't do them any good and
they didn't need one. Davis told Chamberlin the Union
had tried to organize before but the mechanics had turned
it down .6
The foregoing statements or assertions of interrogation,
threats, etc., were either generally or specifically denied by
Warren, Townsend, Boes, and Davis. While I am not
6 1 also note (1) Warren's mention to Aicher of Chamberlin as head of
union organizing , (2) the conversation between Townsend and Ascher,
supra, about Chamberlin as head of the union drive, (3) Davis' reference to
Chamberlin as the leader in a conversation with Ascher, supra, and (4)
Davis' inquiry to Olivo as to what he thought of Pete and the Union
crediting Aicher in some respects where his testimony was
directly and solely in his own interest, I am here crediting
his testimony since it coincides with that of Chamberlin
(and also Lewis and Olivo) with respect to questioning of
him by Davis and with that of Garcia who was questioned
as set forth by Boes and because of my observation of all
of these witnesses. There are also the facts that this is not a
large operation and that the organizing evidently had been
conducted openly.? Further, on previous occasions in 1970
former employee Elmer Larson8 testified Boes had asked
employees to let him know if there was going to be any
organizing for the Union. Also, according to former
employee Edward Godfrey, in 1970, Boes told him, "Any
time you hear of anybody mentioning a Union, you let me
know." I accordingly find from the foregoing that
Respondent was aware of union activity as early as
February 17 or sooner, and that it conducted the
interrogation and made the statements and threats set forth
above. I find the Respondent thereby illegally interrogated
employees, created the impression of surveillance, and
threatened employees, all in violation of Section 8(a)(1) of
the Act.
3. The alleged discriminatory discharge of
Chamberlin
Henry (Pete) Chamberlin commenced employment as a
mechanic for Respondent in October 1970 and was
considered by Boes to be a satisfactory mechanic. In
December 1971, Chamberlin and three other employees
took an extended lunch period during which time they split
several pitchers of beer and returned to work after about a
2-1/2 hour absence. Boes encountered Chamberlin shortly
after his return, asked where he'd been, and when
Chamberlin told him they'd been to lunch and split a few
beers, Boes told Chamberlin he was terminated. Chamber-
lin learned the others had also been terminated. He and
one other employee asked Townsend to reconsider their
termination and Townsend said he would discuss it with
Boes. About 4 o'clock, Chamberlin called Townsend who
told him to see Boes. The next day Chamberlin saw Boes,
who gave his job back after Chamberlin explained that he
had not been driving and did not have control over when
they returned, but Boes would not permit Chamberlin to
return for a few days. Boes also told Chamberlin he was
giving him another chance and said, according to Cham-
berlin, "I don't want to ever catch you being late for lunch
or drinking or anything again. I'm going to keep an eye on
you and make sure you never do it again." Chamberlin
responded, "Well I won't ever do it again .. .." Boes
essentially corroborated this, testifying in part that he told
Chamberlin:
. All right. We'll take and give you another
chance. And if anything fouls up again," I says, "I'm
not going to give you another chance. That's going to
be it."
So, then, he wanted to come back to work that day.
I Chamberlin testified credibly that during the 2 or 3 days after February
14 he discussed the possibility of obtaining representation with some
employees during free time in the shop
8 Larson was fired by Boes
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And I says, "No," I says, "I don't want you back to
work now." I says, "You go home, take the rest of the
week off, and come in Monday; and that'll give you a
long time to think about it."
About Monday, February 14, at Frank Gates' stall, a
discussion took place at which were present Chamberlin,
Ed Garcia, Fred K. Marshall, and Gates. This related to a
company policy concerning a $100 paycheck deduction for
accidents, and in particular money taken out of Ed
Garcia's paycheck and that of another employee, Manuel
Maldonado. Chamberlin mentioned that a union might
help, other employees concurred, and Chamberlin ob-
tained the Union's phone number. Subsequently, Cham-
berlin contacted the Union and then began to discuss the
matter with fellow employees. On February 17, Chamber-
lin contacted the Machinists Union by telephone and
subsequently a meeting was arranged for the evening of
February 18. Chamberlin credibly testified that he went
around and told all of the mechanics and some body shop
employees and some paint shop employees of the meeting
during the same day as the union meeting on February 18.
Chamberlin further testified this was attended by about 20
mechanics and he was elected to be the inside representa-
tive. Employee Ed Garcia also talked about the Union to
other employees. However, it is clear that Chamberlin was
the principal spokesman or advocate of the Union at this
point.
Prior to this time early in February, Erme Alvarado, a
detail man in the new-car department, asked Chamberlin
to work on his car. Chamberlin told him to get a work
order. Alvarado went to Richard Sabo, a service writer, to
get one. When asked who was going to perform the work,
Alvarado said "Chamberlin." Sabo initialed the order and
handed Alvarado the complete repair order with all copies
intact. Alvarado took the order to Chamberlin, who put it
in his toolbox in plain sight. Sometime on February 17,
Chamberlin decided to do some work on his own car and
went to the dispatch office to get a work order. According
to Chamberlin, when he asked the dispatcher, Hank
Heeber, for a repair order to work on his own car, Heeber
told him he was busy and for Chamberlin to get the order
and fill it out. Chamberlin took the repair work out of the
dispatch office and back to his work area. Heeber testified
he never discussed this repair order with Chamberlin, and
never gave Chamberlin or anyone a blank repair order.
Although Heeber so testified, it is evident that Heeber and
other service writers (or dispatchers) occasionally did issue
and handle repair orders in such fashion when work was to
be performed on an employee's own car. Edward Garcia
testified with respect to Heeber:
Q. Did you ever get a repair order from him to
work on your own car?
A. Yes, I did.
Q. What would he do on those occasions?
A. If he was not busy at the time, he would write
one out for me. He would ask the mileage on my car
and ask me what the problem was. A lot of times just
goof around, write on there "Fix something."
9 These and certain orders introduced as evidence manifest a certain
amount of frivolity in handling some orders involving employees
10 All copies
Q. He would write that where?
A. On the repair order. And I used to tell him,
"don't write that; Kenny Boes will get mad." He'd ask
me, "Well, what's the problem?" I'd say, "I want to
check out my exhaust system," or something like that.
Q. Do you recall any specific occasions when Mr.
Heeber wrote "Fix something" on the repair order?
A. Not a particular time ; but I know he's done it,
yes.
Q. With you?
A. Yes; he's done it once or twice that I can
remember.
TRIAL EXAMINER: On whose car?
THE WITNESS: On my own car.9
Several mechanics, W. R. Lewis, William Wisto, and
Michael Palermo, testified it was not unusual for a
mechanic to have a complete work order 10 in his
possession. Service writers Edward Godfrey and Richard
Sabo also testified there was no rule forbidding this
practice; Godfrey said he had, during about 3-1/2 years as
a service writer on about half a dozen occasions (when very
busy), given a mechanic a complete work order (all copies
attached) covering work on the employee's own car. Sabo,
currently a service writer for over a year, said it was not
unusual to hand a complete work order to an employee for
work on his own car and he knows of no policy against it.
Sabo testified:
... But I would say if a mechanic would come in
and ask me to write a ticket on their car, I would
probably hand just about every one of them the whole
ticket.
Sabo also testified if someone asked for a ticket for work
on a car not his own:
... Perhaps. Several times I may hand it to him.
Several times I may tear it apart myself and hand the
soft copy in to the dispatcher.
On February 22 at 9 o'clock Boes walked into Chamber-
lin's work area, saw the two repair orders, and asked him
why he had one covering his car and one covering
Alvarado's car in the toolbox. Chamberlin answered he
had them because company policy required him to have
one for each job for insurance purposes.ii Boes separated
the soft copies from the hard copy of repair order 13194
(covering Chamberlin's vehicle) leaving the hard copy in
Chamberlin's box and walked away carrying all copies of
repair order 12778 (involving Alvarado's vehicle) in his
hand. Boes and Chamberlin's testimony appear consistent
in this respect. Boes indicated that one thing that bothered
him was the length of time that Alvarado's order had been
with Chamberlin.
It is evident from the company's manual that employees
can work on other employees' cars. However, there is a
provision in the manual that then they are to be charged
for this but given a 20-percent discount. With respect to
work on fellow employees' vehicles, it appears from the
testimony of a substantial number of witnesses that
charges have varied from nothing to something between
nothing and the approximate 80 percent that should have
11 Testimony of numerous witnesses including Chamberlin, Godfrey,
and Larson was that they understood company policy required a work order
for insurance purposes
TOWNSEND LINCOLN-MERCURY 77
been charged according to the manual. In part the charge
would depend on the length of time the work would take
and the extent and nature of the job involved. The charge
apparently also varied depending on which persons'
vehicles were involved.12
Boes said he thought he had discussed repair orders at
service meetings. Boes also testified:
Q. Did you say anything to the employees at
service meetings or any other time about whether or
not there should be a charge made for work done on
other employees' cars?
A. No, I never discussed any charges whatsoever. I
just took it for granted, you know, that they knew their
work was supposed to flow through, just like a
customer's repair order. I did not know I had to take
and check on them.
It would appear both from the standpoint of insurance
requirements and also from the Company's manual that
work orders would be requisite. Normally the hard copy of
the work order would be given to the employee and the
other copies retained by the dispatcher or service writer for
accounting and other purposes. This was obviously
essential in the case of warranty matters or service of
outside customers. However, as set forth, there were
numerous instances where the normal procedure was not
followed in the case of the worker's own car or those of
fellow employees.
About noon, Chamberlin left and testified he told Davis
he was going home for lunch, that he "had the flu," and
that if he did not feel better he would not return.
Chamberlin testified that Davis said okay. Then, according
to Chamberlin, about 12:30 his wife telephoned the
dispatch office, talked with Davis, and told him that
Chamberlin would not be back to work that day because
he was sick. Davis denied that Chamberlin spoke to him
about being ill before leaving work. He admitted that he
received a phone call from Chamberlin's wife but testified
the call came about 3 o'clock instead of 12:30. Boes
testified that it was reported to him later on and he forgot
who told him but he was inquiring "if anybody heard from
Pete." Somebody then told him his wife had "called five or
ten minutes ago and she said Pete came home sick at noon
and I had to put him to bed." According to Boes, this was
about 4 or 4:30 in the afternoon. Boes had first denied that
he had been informed by Davis that afternoon that
Chamberlin's wife had called, but after being shown a
transcript from an unemployment compensation hearing,
Boes admitted that he had been so informed late in the
afternoon.
According to Boes, shortly after Chamberlin left work,
he looked for him to discuss the work orders and kept
waiting for him to come back. About 3:30 or 4, when he
did not show up, Boes decided to terminate him. Boes
testified he made the decision because:
Well, because the first thing that popped in my mind,
you know, is I probably got the same thing I had back
in December. So this is the first thing I thought of. So
this is why.
A few minutes later, Boes was told that Chamberlin's wife
had called earlier to advise that Chamberlin was home
sick. Boes testified he had already decided to terminate
Chamberlin about 2 or 2:30 before he was told by Davis
that Chamberlin had called in. Boes testified he usually
investigated matters such as absences and when he found
the employee had an adequate explanation, he usually
reconsidered his decision. In this case, Chamberlin's calling
in coincided or conformed with such policy which had
been followed in the case of mechanic Bill Wisto, who had
been ill about the same time and was excused after calling
in and telling the service writer he would not be at work.
However, Respondent's position is that in Chamberlin's
case the December incident immediately came to mind and
this led Boes to decide that he should be terminated,
particularly because of the apparently similar way the
absence occurred. Boes testified (as set forth post) the
repair orders had simply led to this matter but had not been
a decisive factor in the termination of Chamberlin.
However, on the morning of February 23, when
Chamberlin arrived for work, he was told to report to Boes.
Boes, with Morgan present, told Chamberlin he was
terminated and gave him his paycheck. Chamberlin asked
why and Boes told him the reasons were set forth in the
termination notice attached to the check. Boes also
referred him to page 11, relating to work on fellow
employees' cars and explained the reasons for discharge.
This termination notice reads:
On Dec., 15, 1971 Chamberlin was warned about our
company rules. He was found taking a 2-1/2 hr. lunch
period with intoxicating smell on him when he came
back, he was repremended [sic]. Then on January 6,
1972, we held a service meeting about our company
rules & employee guidebook. Then on February 22,
1972, I found a repair order that Chamberlin wrote and
we had no record of it. We found that Chamberlin
would no [sic] comply with our rules & policies. The
R.O. 13194 was for checking brakes and R.O. 12778 to
check engine.
As indicated, this refers to the December incident, then
the guide book rules, and then the repair orders which Boes
did not rely on when he testified, but rather the fact that
Chamberlin had taken off without notice. Boes testified as
follows:
TRIAL EXAMINER: All right. Now, was it because of the
repair orders? Or was it because you did not see him there
that afternoon that you decided to terminate him?
THE WITNESS: No, it was because I did not see him
there that afternoon. I was just going to talk to him about
the repair orders.
s s • s
Q. (By Mr. Greaves) So it was not the repair orders
that caused you to terminate him; it was the absence. Is
that correct?
A. Right. [ Emphasis supplied.]
Q. All right. Now, you found out where he was the
afternoon of February 22 by asking the dispatcher had
he seen Pete ; right?
A. No.
12 Not only was it permissible for employees to work on each other's cars
but, according to witnesses Ray Wood and Charles Hutchison, in some
cases they charged and in others they did not for the work for a fellow
employee
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. The dispatcher told you where Pete was when
you inquired where Pete was, didn't he?
A. No, he didn't.
Q. He did not tell you that Pete's wife had called in
and told him that Pete was sick?
A. No, he did not.
Q. Did you testify in an unemployment compensa-
tion hearing involving Mr. Chamberlin on April 13?
A. Yes, I did.
Q. I direct your attention to page 4 of Respon-
dent's 2, lines 21 through 28. Would you read that to
yourself.
A. (Witness examining document.)
Q. Did you talk to the dispatcher about Pete
Chamberlin on the afternoon of February 23?
A. Well, the dispatcher was Phil Davis at noon,
and, then, he was back in there at 4:00 o'clock. And
Phil Davis was the guy I talked to, yes.
Q. What did he say about Pete Chamberlin?
A. He said, "His wife just called and said Pete went
home at noon and he was sick and she had to put him
to bed."
According to Chamberlin, Boes told him when terminated
that if he ever returned to the premises, he was not to talk
to anyone but Boes or Morgan. Chamberlin then said he
told Boes the employees were organizing, that he, Cham-
berlin, had been behind the drive and Boes told Chamber-
lin he had not realized this. According to Boes, at this time
Chamberlin threatened to "get" him.
The foregoing raises certain questions as to the motiva-
tion for Chamberlin's discharge. Although Respondent
denies any knowledge of his union activity, based on my
finding, supra, I find and conclude that Respondent did
have knowledge of the union activity, including particular-
ly that of the leader, Chamberlin. As for Respondent's
asserted reason for Chamberlin's termination, although
Davis denies hearing from Chamberlin's wife at noon,
there is no question that Davis did receive a phone call
from Mrs. Chamberlin in midafternoon apparently prior to
the time that Boes determined to fire Chamberlin. Also,
Boes was informed of this call by Davis before he had
effected Chamberlin's termination, but this information
did not cause him to reconsider carrying out the termina-
tion.
On the one hand , Boes testified he issued the termination
notice which places particular emphasis upon the repair
orders as a reason for termination, while to the contrary
Boes testified that the reason was that Chamberlin had left
without giving proper notice. It may be arguable that, in
view of Chamberlin's conduct in December and this
apparent continuation thereof and perhaps a hasty
reaction thereto by Boes, the termination can be viewed as
other than pretextual. However, this must be weighed in
the light of the inconsistency between the reasons given on
the termination notice; namely, the possession of the repair
orders, etc; the fact that such retention, although it may
not have been common practice, had occurred on quite a
number of occasions among employees ; that Boes testified
he did not rely on the repair orders ; and finally that, even
though it was brought to his attention that a call had come
from Chamberlin 's wife that Chamberlin had been home
ill, he continued on this path to terminate Chamberlin.
Now it may be that Chamberlin could or should have done
something more , but illness does not in many cases permit
the time or the opportunity and Chamberlin did indicate
that he had so informed Davis when he went home . In this
latter connection , there is a question as to why, if
Chamberlin had told Davis , Chamberlin's wife would also
call to inform someone who turned out to be Davis
evidently earlier than Davis said she had called . It may be
that Chamberlin wanted to make doubly sure that there
was awareness of his illness or Mrs. Chamberlin may not
have been aware that he had informed Davis when he left.
In any event , it is clear that Chamberlin did endeavor to
inform management of his illness and succeeded in at least
informing Davis, who at that time was acting as dispatcher,
and therefore in a management capacity whatever he may
otherwise have been.i3
In view of my finding of Respondent 's full awareness of
Chamberlin's leadership in the union activity , Boes' prior
as well as present expressed interest therein , as found
above , Respondent 's interrogation and other activities in
violation of Section 8(a)(1), the evidence establishing that
employees holding complete orders was not uncommon,14
the inconsistency between the termination notice and Boes'
testimony 15 as to the reasons for the termination of
Chamberlin , the continuation with such termination in
spite of information that Chamberlin had gone home ill,
and, accordingly , a termination that has not been satisfac-
torily explained , I find and conclude the termination of
Chamberlin was pretextual and in violation of Section
8(a)(1) and (3) of the Act.
4. The alleged discriminatory discharge of
Edward Garcia
Edward Garcia was a lube man. About February 2, he
was instructed to check a shop pickup truck for needed
repairs. Garcia proceeded to check the transmission with
the motor running , found the emergency brake did not
work, and placed the truck in "park." While he checked
the transmission, the truck slipped into gear and rolled off
the rack into a car parked nearby, causing damage. Garcia
admitted that he had noted prior to this that the gears
slipped and hence was aware thereof. About the same day
another employee , Manuel Maldonado , had an accident in
which Maldonado, driving the shop truck, and the
Respondent 's assistant manager in an automobile collided
in the parking lot. According to Respondent 's established
policy, $100 was deducted from the February 11 paychecks
of both Garcia and Maldonado for their accidents. There
was also taken out of Garcia 's paycheck on that occasion a
deduction of $17. Garcia had not been told prior thereto
that such deductions would be made . He asked Boes about
the deductions in Davis' presence . Boes told Garcia the
$100 was for the insurance deductible covering the damage
13 1 have found him to be a supervisor, supra 15 Further negating the repair order reasons stated in the notice
14 Thereby negating such in the notice as a valid reason
TOWNSEND LINCOLN-MERCURY 79
to the shop truck. Garcia was angry and told Boes that the
accident had not been his fault because the gearshift lever
was defective. According to Garcia, Boes said that if he
had known about the defective gearshift at the time "it
would not have gone that far" which Garcia understood to
mean "that he would not have deducted it out of my
paycheck until he had gone fully into it." Boes' testimony
vanes from Garcia as to the "fault" issue . Boes testified:
The first thing I did was I took and got ahold of the
repair order to find out what the truck was in there for,
what he was doing to it, and things like that.
I found out, you know, that he was going to take and
change the oil filter, and there was a notation on the
repair order, you know, that the transmission was
slipping, there was something wrong with it that had to
be repaired.
So I thought, well, he tells me, you know, it jumped
out of gear and everything like that; so I just felt, you
know, if the thing was in there for transmission repair
and it was noted on the repair order and he should
have been more careful with it.
So, therefore, I took it out of his pay.
Garcia had failed to clean its battery cables during a
previous service job about January 24. Boes in essence
corroborates Garcia on this conversation . The car in
question had been towed in some 2 weeks earlier. Garcia
had not been notified of the mistake and was not called on
to rectify it. There is some dispute as to who was
responsible for it with Garcia denying the same, but I do
not consider this material to ultimate resolution of the
issues herein . 17 During the time Garcia was complaining
about his deduction , Maldonado also complained to Boes
about his and Boes testified that Maldonado like Garcia
was "perturbed about" the deduction policy.
On February 17 Garcia spoke to Townsend in Town-
send's office with Boes and Morgan present . Garcia told
Townsend he felt the deduction was "unfair since the gear
shift had been defective." Townsend told Garcia that
company policy required him to pay for the damage.
Garcia said he felt he should have been notified ahead of
time of the deduction in order to make the necessary
financial adjustments to absorb it. Townsend then told
Garcia he would return $75 to him and deduct $25 from
his next three paychecks. At one point Garcia testified he
asked Townsend about Maldonado's deduction and Boes
Q. What did you say to Mr. Garcia and what did
he say to you at that time concerning this incident?
A. Well, he asked me about the $100 held out of his
pay. And I dust explained to him that that was for the
deductible on the insurance on the truck.
And so he started explaining to me, you know, that
the truck had a defective part into it; that it wasn't his
fault.
So I says, "Well, it was noted on the repair order that
they had a problem with the transmission; so why
weren't you more careful with it?"
And he says, "Oh, Dust don't think it was my fault."
And he left.
When Garcia asked about the $17 portion of the deduction
Boes said he didn't know about that but would find out
and let Garcia know.
Thereafter, Garcia talked with Maldonado who told
Garcia he intended to go to the Board about his deduction.
Garcia said he would first try to talk to Townsend before
going to the Board. The next Monday, February 14,
following discussion among Garcia, Chamberlin, and
others as to the unfairness of such deductions, Chamberlin
suggested a union might help. According to Garcia and
Smith, Maldonado went to "the Labor Commissioner" on
the 14th. Garcia testified that Maldonado talked to him
again on the 14th and Garcia said he intended to talk to
Townsend about his deduction and also Maldonado's.16
On the 15th Garcia met with Boes to discuss the
deductions. Boes told him he would have to pay the $100
because it was company policy and that he would also have
to pay the $17 portion of the February 11 deduction for a
tow bill, since Respondent had to have a car that Garcia
had worked on towed back to Respondent's plant because
indicated he had "heard the accident was Maldonado's
fault." Garcia then told Townsend he felt the company
policy concerning deductions "stunk," but that if he
wanted to continue working he would have to abide by it.
According to Garcia, Townsend then said:
"Well, you go ahead and go on back to work," he says,
"and when you leave this office," he says, "don't
discuss it with anybody. Let's just consider the matter
closed and leave it at that.
I said, "Okay," and I walked out of that office and
went back to work.
There is some variance in Townsend 's and Boes' versions
of this discussion in that neither mentions Townsend
advising Garcia not to discuss the matter with anyone and
Boes denies there was any reference to Maldonado while
he was present. Also Townsend denied that Garcia used
any adjectives although he indicated Garcia was unhappy
about the policy. Boes, however, testified:
A. Yeah. I think Mr. Townsend made the state-
ment , you know, "This is Company policy, you know,
and I'm sure it won't take and hurt if we do it this
way."
And, then, Ed snapped back, and he says, "I think
your Company policy stinks; but if I want to work
here, I guess I have to abide by it, but I don't like it."
On February 18, Berkeley Smith , Respondent's business
manager and treasurer , testified Boes told him to prepare
termination checks for Garcia and Maldonado and to
return the $100 deduction to each of them for their
accidents. Smith said that Boes told him Garcia was being
terminated because:
A. There again I can't repeat the conversation.
What I remember is that Mr. Garcia didn't like the idea
of the $100 being withheld. He was objecting to it very
16 Maldonado could not be located and was not called as a witness that while this was proper for an outside customer, it was not permissible in
17 There is also testimony that Garcia when he did lube work on his own the case of an employee and his own car In any case, although this was
car would at times charge 50 cents for the labor work which was the same as raised as an issue, it does not appear to be a predicate for the termination
he would charge if it was an outside customer Respondent 's position was
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strenuously. And it was better to give him back the
$ 100 and terminate him.
Smith also learned Maldonado was being terminated by
Boes because:
A. Manuel had gone to the Labor Commissioner,
and so regardless of whether we won or lost at the
Labor Board, we had a dissatisfied employee; so we
gave him back the money and terminated him.
Boes testified:
Q. Now , when you made that decision with regard
to Manuel , why did you make the decision to give him
back his $100?
A. Because he was just as unhappy as Ed Garcia
was; so I decided , well, if we 're going to do it to one, we
might as well do it to both of them.
Q. Did you know Manuel had been to the State
labor department?
A. No, I did not.
About 5 : 30 that day Boes asked Garcia to come in his
office . He then asked Garcia how things were going.
Garcia said "Fine ." According to Garcia , Boes then asked,
"What's going on around here?" Garcia said he didn't
know what Boes meant . Boes repeated , "What's going on
around here?" And when Garcia said he didn 't know Boes
suddenly told Garcia he was fired, handed him his
termination check, and told him the check included the
$100 previously deducted. According to Garcia, Boes told
him he was terminated because "I didn't like the comment
you said in Bob Townsend 's office about not liking the
company rule." Garcia told Boes he thought from the
conversation with Townsend that the matter of deductions
had been resolved and asked who had decided to terminate
him. Boes replied that he alone made the decision . Garcia
expressed surprise at being terminated after 4 years'
service . With Warren present , Boes told him to come back
the next day to turn in his uniform , and he didn 't want to
catch him on the premises again.
Boes testified that , although he had been at the meeting
the day before with Townsend, he didn't like the statement
made by Garcia. The following day Garcia acted uncivilly,
tossed repair orders around , and generally indicated a bad
attitude toward work and this caused Boes to get "madder"
and brought about Garcia's termination. Garcia testified in
rebuttal that he had not manifested such an attitude but
had been in a pretty good humor on that day. As
previously set forth, Boes also denied that he knew
Maldonado had gone to the "State Labor Department"
before he terminated Maldonado . This apparently conflicts
with Smith 's testimony that Boes had terminated Maldona-
do because of his going to the "labor commissioner."
Boes denied asking Garcia "What's going on around
here?" In view of inconsistencies between Boes and Smith
as well as Boes and Godfrey , Garcia, Larson, Aicher , et al.,
and the probabilities of various situations including that of
Chamberlin and the instant termination following Town-
send 's apparent settlement of the matter on the preceding
day, the 17th, and my appraisal of Garcia, I am crediting
Garcia as to this statement being made. Respondent also
attempted to establish that part of the reason for Garcia's
termination was that he had "too many `comebacks'."
However , it is evident that Respondent expected some
comebacks , that Boes admittedly considered Garcia to be a
good lube man but claimed that toward the last Garcia's
attitude was the problem . Boes testified:
Q. Now, with regard to Mr . Garcia's performance,
there is no doubt in your mind that he was a pretty-
good lube man when he was working for Townsend.
Isn't that correct?
A. Oh, he's a good lube man, sure , as long as he
can keep his attitude in line , you know.
Q. His attitude is really the only problem , as far as
he went ; right?
A. Towards the last, yes.
Other employees had numerous comebacks , including
Hutchison and Wood. Garcia without contradiction
testified as to only having five or six during the year before
his termination which was much less than some others.
There may be some question as to how active Garcia was
for the Union . It is clear that such union activity was
known to Respondent which was inquiring about it on
February 17, and from testimony of Chamberlin and
Garcia that Garcia was involved in discussions and activity
leading to and relating to the Union . I have found that
Respondent was aware and had knowledge that union
activities were going on and who was involved . Respon-
dent also was obviously annoyed about protests of both
Garcia and Maldonado of the $100 deductible policy.
Townsend had evidently settled the matter as to Garcia on
the 17th. Yet Boes had terminated Garcia on the 18th.
Something led to this changed position.
Among the possibilities are that ( 1) Garcia manifested
such a bad reaction on the 18th that Boes felt his only
choice was to eliminate him; (2 ) Boes may simply act
precipitously; and (3 ) Boes didn 't like either the union
activity of Garcia or the joint activity of Garcia and
Maldonado in protest of the $100 deductible policy.
What occurred on February 17 and 18 could make union
activity a factor or the factor . First, there was such
interrogation of Aicher on February 17. Second , there was
the union meeting of February 18 and prior activities
incident thereto which Warren, Davis, and Townsend
indicated they had been and were aware of. With respect to
the action against both Garcia and Maldonado, there is the
testimony of Smith that Boes said he eliminated Maldona-
do because he went to the labor commissioner . Boes denied
he knew about Maldonado going to the commissioner but
testified that Maldonado was as unhappy as Garcia so they
might as well terminate both. This is indicative of a
response to a point protest . There is further the matter of
credibility as to Garcia's attitude on the 18th . Although I
am not convinced that Garcia had completely forgotten
the matter , I doubt whether he would have indicated or
manifested the attitude that Boes claimed on the 18th and
find that he did not. I am, therefore , crediting Garcia as to
his conduct on the 18th. When this is coupled with Boes'
expressed attitude to Smith about Maldonado, with
Townsend's apparent settlement of the matter on the 17th,
and with Respondent 's awareness of and opposition to
union activity , I conclude that Garcia 's termination
resulted from either or both the point protests of Garcia
and Maldonado or Respondent's opposition to the pending
union activity which Garcia was a party to, including the
TOWNSEND LINCOLN-MERCURY
impending union meeting of that day, the 18th. The latter
would explain the sequence commencing with the question
to Garcia by Boes, "What's going on around here?"
followed by Garcia's saying he didn't know and then
Garcia's termination. I am, accordingly, finding that by
terminating Garcia, Respondent violated Section 8(a)(1)
and (3) of the Act.
5. The alleged discriminatory discharge of
Fred Aicher
On January 12, 1972, Fred Aicher was employed by
Respondent. Aicher evidently washed and delivered cars
and performed miscellaneous jobs. As previously set forth,
Aicher credibly testified concerning interrogation as to
union activities by Warren about February 17, Warren's
statement that he knew Chamberlin was the leader, and
Warren's threat to Aicher that he better not attend a union
meeting. On February 18, as previously found, Boes asked
Aicher what he knew about the Union. On February 19,
Davis inquired of Aicher about the Union and how the
meeting had gone the night before. February 22, Warren
had again questioned Aicher about a conversation with
Chamberlin as to whether it concerned the Union.
February 24, about 2 o'clock, Aicher quit his employ-
ment with Respondent. He told Boes he was quitting, said
he had an argument with Davis and was "tired" of Davis
"climbing" on his back, and also told Boes he was "tired of
... watching John Morgan playing hide and go seek" and
that he "was tired of working on Saturdays." According to
Aicher, Boes said he would raise his pay to $2 an hour.
Boes' account is generally consistent except that while Boes
testified he offered Aicher a raise if Aicher would stay, he
did not specify an amount. In the afternoon Aicher
telephoned Boes to ask if his job had been filled. Boes told
him to come in and talk about it which Aicher did. Aicher
again told Boes about Davis' and Morgan's harassment.
According to Aicher, Boes asked if he wanted his job back
and told him he could have a raise to $2 an hour. Aicher
said he accepted the offer to resume work the next day.
Boes testified he gave Aicher his job back but denied
offering him a raise in rehiring him, although admitting
that at some point that day he had offered Aicher a raise to
induce him to stay on the job.
As set forth, Aicher testified that 3 or 4 days after
February 19, Davis had approached Aicher at the wash
rack and told Aicher he knew that Chamberlin, Aicher,
and "a few others had attended the union meeting," that
Chamberlin had been the leader in organizing, and that the
Union would take away his money and give him bad
working hours.
On March 3, Davis told Aicher that Boes wanted the
crew to come in on the weekend to paint the mechanics'
stalls, that he, Davis, would be in charge of the paint detail
and Aicher had to come in and paint. According to Aicher,
he protested that his. lung condition would not permit him
to work with paint and fumes, but that Davis told him not
to bother to report the next Monday if he missed the paint
detail. On that Saturday, Aicher and four others painted
18 The application form under "Condition of Health" states "EXL."
Aicher testified he did not fill in condition of health and didn't know if the
"EXL" was in his writing. However, Aicher admitted that he filled in a
81
and cleaned under Davis' directions. On Sunday, Aicher
slipped and fell while working in the paint detail , injuring
his back. Also, according to Aicher, his lungs were
inflamed from the painting. The next day, Aicher went to
Boes and asked to be allowed to leave work to go to
Veteran's Hospital for treatment for his lungs and back.
Boes told Aicher to fill out an accident form before he left
the dealership. A secretary then typed up the necessary
insurance form and Aicher left for the hospital. There is no
mention of a lung condition on the accident report, nor is
there any on Aicher's application for employment. I s Boes,
Morgan, and Davis all deny that Aicher ever told them he
had a lung condition that prevented him from working
around paint or gasoline fumes , etc. Aicher testified on
direct examination that when he was hired, he told Morgan
and Boes that he could not work around paint because of
his lungs and that he told Davis on March 3 when Davis
told him to come in and paint that weekend that he had
such a condition. On cross-examination, Aicher testified:
Q. (By Mr. Lerten) When you were hired, did you
tell anyone at Townsend Lincoln-Mercury gasoline
fumes hurt your lungs?
A. I did not find out I had to use it till afterwards.
Q. You found out you had to use it as soon as you
started your job of detailing cars, didn't you?
A. I didn't use it until some time after I was
working.
Aicher further testified he thereafter complained about
working with gasoline to employee Alvarado and to Davis,
who, according to Aicher, said he would try to work
something out. Aicher also testified:
Q. And you continued to use the gasoline to clean
the cars?
A. Yes, sir. I wanted the job.
In connection with the accident form, Aicher said he
worked half a day on Monday, March 6, and left at 1 after
notifying Ken Boes . Aicher then testified:
A. I told him that the painting had hurt my lungs
and my back was hurting. Sunday I had slipped on my
back there while painting. And I told him I wanted to
go to the doctors and find out what's wrong.
And he said, "Well, you have to fill out an accident
report." So he sent me into the main office there, and I
filled it out. The secretary either signed it or she
stamped it or something; I don't recall what she did.
And I took it back to Ken Boes , and he excused me for
the day.
From the foregoing it is evident and I find that at the
time of employment Aicher did not indicate that he had a
lung condition that would be affected by gasoline fumes.
The secretary, Anita Miller, testified that she filled out the
accident form from information provided and did not
change it in any way. She also testified Aicher watched her
type it. Miss Miller testified that in addition to what was on
the form, Aicher said he was going to quit and wanted his
paycheck. She also testified:
Q. What else did he say:
A. And that-Well, he made it very clear that he
series of "No's" after specific defects and a "none" after other defects and
that at no point in the application had he indicated a lung condition; i.e.,
bronchial asthma.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not like it and did not like Mr. Davis. He inferred
he did not like Mr. Boes or the service department or
Townsend Lincoln-Mercury. He made it very clear he
was unhappy and was going to quit.
Q. Did he mention his lungs to you or a lung
condition?
A. I believe when I asked him why he couldn't
paint, he said something about the fact it got in his
lungs. But I'm not a doctor; I'm not a medical expert,
and I wouldn't know what that meant, anyway.
First, I note Davis was aware there was gasoline around
the auto dealership but explained he wasn't concerned
about it because he didn't expect to work near it. While
this may be, it would appear to be unavoidable and also
that there would be a body shop which he might at times
have contact with. I have previously not credited Archer as
to his claim that he informed Respondent of a lung
condition or bronchial asthma when hired. I am further
crediting secretary Anita Miller, whom I found to be a
highly credible witness, that she typed the form on the
basis of what she was told and that Aicher did not refer to
a lung condition in connection therewith. In certain
instances where Aicher was personally and directly involved
and affected, I have some reservation concerning his
testimony and in such circumstances concluded that
Archer may have been inclined to see matters as he wanted
them to be. The same appears to be true with the
discussion referred to subsequently as to what occurred at
the time of his ultimate termination.
At the Veterans' Hospital, according to Aicher, he was
told by the doctor that further painting could cause him
serious injury. He did not work the next day but returned
on Wednesday, March 8. On that day, around the noon
hour, Archer encountered Davis near the (car) rental office.
Davis asked him what he was doing. According to Archer,
he replied it was his lunch hour and Davis said "fine" and
walked away. About 15 minutes later, according to Archer,
he again encountered Davis, who again asked what he was
doing and Aicher said he was still out to lunch. Davis then
told Aicher that he had forgotten to punch out for lunch
and had also written in his time instead of punching the
timeclock. Davis took Archer to the timeclock and
punched the card to show him how to operate the clock.
Archer offered to allow Respondent to deduct any money
loss due to his failure to punch in and out properly.
Davis left and Aicher took off his shoes to remove a
rock. When Davis returned Aicher still had his shoe off.
Davis said "Let's go." Archer said "Just a minute." Davis
told him to come on. When Aicher didn't move Davis took
his timecard out of the rack and told Archer he had "quit."
Aicher said he would not quit, that Davis would have to
terminate him. Davis went to Morgan's office and Archer
followed. Morgan, at Davis' request, told Aicher what his
lunch schedule was. Davis and Aicher walked to the
dispatch office to talk to Boes. Davis told Boes about the
argument he had with Archer. Boes at this point ignored
them and said nothing. According to Aicher, Davis and he
went back to the timeclock where they argued again and
Davis finally told Archer again "you've quit." Aicher said
he wouldn't quit. Davis left and when he returned he told
Archer he was terminated. According to Archer he asked
why he was terminated and Davis told him it was because
of his asthma and his refusal to work with gasoline,
walking around and not working, and his "union activi-
ties."
Boes' and Davis' versions differ somewhat from Aicher's
as to the circumstances and the conversation. Davis and
Boes testified that Boes terminated him. Davis also denied
that he told Archer he was fired. Boes and Davis both
denied any knowledge of Aicher's union activities at the
time of discharge.
The General Counsel relies on Aicher's testimony as to
what he was told at the time of termination; also, that
Respondent took the position in a letter from counsel and
its answer that Aicher "quit" on March 8 and then at the
hearing admitted Archer did not in fact quit, but was
terminated. The General Counsel argues that this shift of
position should be considered in determining whether
Archer was unlawfully terminated. However, Respondent
at one point had reason to believe that Archer quit.
According to Davis' version, which I am crediting, Aicher
was, in essence, standing around and not working. Davis
testified with respect to Aicher's discharge that he saw
Aicher hadn't started to work way past his lunch period
and asked him what he was doing. Aicher replied he had
been up to see if any more cars needed detailing. Davis
told Aicher he was working through the dispatcher to
which Archer replied he was still on his lunch hour. Davis
then testified:
And I informed him that his lunch period had been
stretched out quite a ways, and there was a certain
amount of work which had to be done, which, in turn,
was still sitting on the wash rack and had not been
finished-or had not been started.
And he informed me that he didn't know whether he
was going to go back to work or not.
So at this time I told him, "Maybe we'd better make
up our mind," because it was getting kind of late in the
day, and we had to have a certain amount of work out.
And he still insisted that he didn't know if he was
going to work or not.
So I asked him if he would accompany me, to go
with me up to Mr. Morgan's office.
Morgan, in turn , referred them to Boes. Davis then
testified:
I informed Kenny that I believe we had kind of a
problem. And he asked what the problem was. And I
told him Mr. Archer didn't know if he wanted to go to
work or not. And Mr. Boes asked him, in turn , what his
problem was. And he just said-he stated that he
couldn't make up his mind whether he wanted to go to
work or not.
So Mr . Boes told me to take his timecard in to Mr.
Smith's office and have him figure his time . And this I
did.
It appears that on March 8 Archer was standing around
and wasn't working and gave every indication that he
didn't know what he wanted to do and whether he was
going to do anything. It also appears that Respondent had
good reason to believe that Aicher had, in effect, quit or
indicated he was going to quit at the time Respondent
wrote the letter on March 8, and this is bolstered by the
TOWNSEND LINCOLN-MERCURY
fact that on February 24 he had quit. It is also bolstered by
the painting job and the dispute over his working then. I
also note Anita Miller's credited testimony, supra, that at
the time of the accident report, Aicher said he was going to
quit. Accordingly, I do not consider the alleged discrepan-
cy between Respondent counsel's letter and Boes' testimo-
ny as to termination versus "quit" to be of major
significance. As further found, I have not credited Aicher's
testimony as to advising Respondent of his lung condition
when hired nor with respect to the preparation and
completion of the accident report.
Since I have credited Aicher as to conversations with
Warren, Townsend, and Boes relating to the Union, it
would appear clear that Respondent as of February 24 had
knowledge of whatever activities Aicher may or may not
have engaged in which evidently were not too extensive
other than perhaps attending a meeting, and that Respon-
dent evidently was not concerned at that time as to
Aicher's union activities. This is manifested by Boes'
endeavors to have him return to work after he quit on
February 24. In the light of this, and since there does not
appear to have been any intervening union activity by
Aicher, it seems most unlikely that Respondent, on March
8, terminated Aicher for any union activities. For this
reason, among others, including my analysis of all the
testimony, I am not crediting Aicher's testimony that Davis
told him that among the reasons for termination were his
"union activities." As I have previously indicated, I believe
that where Aicher's immediate self-interest was directly
involved, Aicher tended to color his testimony accordingly.
Furthermore, it is evident that Aicher was not manifesting
either an attitude toward nor interest in working at the
time he was terminated. I accordingly believe that his
termination was for a good cause and not violative of the
Act, and shall recommend the complaint be dismissed as to
Aicher.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent discriminated against
Henry (Pete) Chamberlin and Edward Garcia by discharg-
ing them, it will be recommended that Respondent offer
them immediate and full reinstatement to their formerjobs
or, if those jobs no longer exist, to substantially equivalent
jobs, without prejudice to their seniority or other rights or
privileges. It will also be recommended that Respondent
make them whole for any loss of earnings they may have
suffered by reason of the discrimination against them by
20 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations and recommended Order herein shall, as
83
payment to them of a sum of money equal to the amount
they normally would have earned as wages from February
22, 1972, in the case of Chamberlin, and from February 18,
1972, in the case of Garcia, to the date of Respondent's
offers of reinstatement to them, less their respective net
earnings during said periods. Loss of earnings shall be
computed in accordance with the formula prescribed in
F.W. Woolworth Company, 90 NLRB 289, and interest at the
rate of 6 percent per annum shall be added to the backpay
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. It will also be recommended
that Respondent preserve and make available to the Board
upon request payroll and other records to facilitate
computation of backpay.
Having found that Respondent engaged in and is
engaging `in certain other unfair labor practices I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action which I find necessary to
remedy and remove the effects of the unfair labor practices
and to effectuate the policies of the Act. Because of the
nature and extent of the unfair labor practices engaged in
by Respondent, I deem it necessary to recommend that
Respondent cease and desist from in any other manner
infringing on the rights of employees guaranteed in Section
7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Henry (Pete) Chamberlin and Edward
Garcia to discourage membership in a labor organization,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. By interrogating employees concerning union mem-
bership and activities, by giving the impression of
surveillance of union activities, and by threatening employ-
ees for engaging in union activities as found above,
Respondent has violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The Respondent has not violated the Act by
terminating Frederick Aicher.
RECOMMENDED ORDER20
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in the case,
it is hereby recommended that Respondent, J. R. Town-
send Lincoln-Mercury, shall:
1. Cease and desist from:
provided in Sec 102 48 of the Rules and Regulations be adopted by the
Board and become its findings, conclusions and order, and all objections
thereto shall be deemed waived for all purposes.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discouraging membership in International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO, or
any other labor organization of its employees by discrimi-
nating in regard to their hire or tenure of employment, or
any term or condition of employment.
(b) Coercively interrogating employees concerning union
membership or activities.
(c) Creating the impression of surveillance of union
organization, activities, or meetings.
(d) Threatening individual or group reprisals or discrimi-
nation because of union membership, organization, or
activities.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
the Union, or any other organization, to bargain collective-
ly through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent such
right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer Henry (Pete) Chamberlin and Edward Garcia
immediate and full reinstatement to their former employ-
ment or, if such no longer exists, to a substantially
21 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
equivalent position, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings they may have sustained as a result of the
discrimination against them in the manner proscribed in
section V of this decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful to an analysis of the amount of
backpay due under the terms of this recommended Order.
(c) Post at its place of business located in San Diego,
California, copies of the attached notice marked "Appen-
dix." Copies of said notice, to be furnished by the Regional
Director for Region 21, shall, after being duly signed by an
authorized representative of Respondent, be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.21
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.22
IT IS FURTHER RECOMMENDED that in all other respects
the complaint be dismissed.
22 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 21, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "