Webb Ford, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 441 (N.L.R.B. 1981)

WEBB FORD, INC.
Webb Ford, Inc. and Randall J. Vander Woude and
Jeffrey Goffe. Cases 13-CA-18876 and 13-
CA-18920
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On January 15, 1981, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the General Coun-
sel filed cross-exceptions, a supporting brief, and a
brief in response to Respondent's exceptions, and
Respondent filed a brief in response to the cross-
exceptions of the General Counsel.
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,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusions of Law 3
and 4 and renumber the subsequent paragraph ac-
cordingly:
"3. By issuing warning notices as part of a
scheme to discharge Jeffrey Goffe and Randy
Vander Woude for pretextual reasons, Respondent
violated Section 8(a)(1) and (3) of the Act.
"4. Such violations constitute unfair labor prac-
tices which affect commerce within the meaning of
Section 2(6) and (7) of the Act."
Counsel for Respondent has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings. We also find totally without merit Respondent's alle-
gations of bias and prejudice on the part of the Administrative Law
Judge, nor do we perceive any evidence that the Administrative Law
Judge prejudiced the case, made prejudicial rulings, or demonstrated a
bias against Respondent in his analysis or discussion of the evidence.
2 The Administrative Law Judge inadvertently failed to find a violation
of Sec. 8(aX3) and (I) as alleged based on the warning notices that Re-
spondent issued to employees Goffe and Vander Woude. The Board finds
that the record supports his conclusions that these notices were discrimi-
natory and on that basis we find additional violations of Sec. 8(a)(3) and
(I) of the Act and we shall order Respondent to expunge these warnings
from the personnel records of Goffe and Vander Woude.
258 NLRB No. 62
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,
Webb Ford, Inc., Highland, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph 2(b), relet-
tering subsequent paragraphs accordingly:
"(b) Retract the warning notices issued to em-
ployees Jeffrey Goffe and Randy Vander Woude
and expunge their personnel files of all said warn-
ings."
2. Substitute the attached Appendix A for that of
the Administrative Law Judge.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS 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.
WE WILL NOT discharge or otherwise dis-
criminate against our employees in regard to
their hire or tenure of employment or any
term or condition of their employment because
they engage in protected concerted activity
within the meaning of Section 7 of the Nation-
al Labor Relations Act either individually or
through their collective-bargaining representa-
tive.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights under the Na-
tional Labor Relations Act.
WE WILL offer to Jeffrey Goffe and Randy
Vander Woude full and immediate reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or
other rights and privileges, and WE WILL pay
them for any loss of earnings and benefits they
may have suffered due to our unlawful dis-
charge of them, with interest.
WE WILL retract the warning notices issued
to Jeffrey Goffe and Randy Vander Woude
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and expunge their personnel files of all said
warnings.
WEBB FORD, INC.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge:
This case was heard in Chicago, Illinois, on August 20
and 21, 1980.' The complaint alleges that Respondent
discharged employee Jeffrey Goffe on March 30, 1979,
and, after his reinstatement, discharged him again on
July 13, 1979, and discharged employee Randall J.
Vander Woude on July 13, 1979, because of their union
and protected concerted activities in violation of Section
8(a)(3) and (1) of the National Labor Relations Act, as
amended. The complaint also alleges that Respondent
discharged Vander Woude for filing a charge with the
Board in violation of Section 8(a)(4) and (1) of the Act.
Respondent denies the essential allegations in the com-
plaint. The parties filed briefs.
Based on the entire record herein, including the testi-
mony of the witnesses and my observation of their de-
meanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is engaged in the retail sale and service of
new and used automobiles and trucks at its facility at
9809 Indianapolis Boulevard, Highland, Indiana. During
the calendar year ending December 31, 1978, Respond-
ent derived gross revenues from its operations in High-
land, Indiana, in excess of $500,000 and sold and shipped
from its Highland, Indiana, facility products, goods, and
materials valued in excess of $5,000 directly to points
outside the State of Indiana. Accordingly, I find, as Re-
spondent admits, that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE I.ABOR ORGANIZATION
General Drivers, Warehousemen and Helpers, Local
142, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (hereafter the
Union), is a labor organization within the meaning of
Section 2(5) of the Act.
'This case was heard for several days in February and March 1980
before Administrative Law Judge C. Dale Stout. A week after the close
of the hearing and before the issuance of a decision, Administrative Law
Judge Stout died. In a letter to the parties, the Chief Administrative Law
Judge advised them of several options available to dispose of the case.
Respondent insisted on a retrial de novo before a new administrative law
judge. By order dated May 6, 1980, the Chief Administrative Law Judge
designated me to hear the matter de novo and to prepare a decision in
accordance with Board rules and regulations.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
Respondent operates a Ford automobile dealership in
Highland, Indiana. The firm consists of the following de-
partments: New-car sales, used-car sales, service, body
shop, parts, and front office. At all relevant times, the of-
ficers and supervisory staff of Respondent consisted of
the following: Patrick (Packy) W'bb, president; John J.
(Jack) Webb, vice president; George Webb, secretary-
treasurer; George Biederman, service manager; and Ro-
berta (Gerrye) Perri, office manager.
Employees Randall Vander Woude and Jeffrey Goffe
were mechanics in Respondent's service department until
they were discharged on July 13, 1979. Vander Woude
was hired in April 1977; Goffe was hired in March 1978.
There were eight mechanics in the service department
who worked under the supervision of George Bieder-
man, the service manager. Both Vander Woude and
Goffe signed authorization cards on behalf of the Union
in July 1978 and they solicited signatures from other me-
chanics during the organizing campaign. Biederman
knew about their union activity.
The Union was selected as bargaining representative
by the employees in a Board-conducted election held on
September 14, 1978. A collective-bargaining agreement
was ultimately signed by Respondent and the Union on
March 16, 1979.
The contract provided for a guaranteed workweek of
40 hours per week. In addition, the contract provided for
the following vacation pay and wage rates:
ARTICLE 6-VACATIONS
One (1) week's vacation with pay shall be grant-
ed to each employee after fifty-two (52) weeks of
service with the Employer. Vacation pay shall be
computed on a forty (40) hour straight time work
week basis for the vacation week or weeks. Two (2)
weeks' vacation with pay shall be granted each em-
ployee after two (2) years of consecutive service
with the Employer. Three (3) weeks' vacation with
pay shall be granted each employee with ten (10)
consecutive years of service and four (4) weeks' va-
cation with pay shall be granted each employee
with fifteen (15) consecutive years of service with
the Employer. The vacation period shall be be-
tween January Ist and December 31st of each year.
Employees, employed prior to January 1, 1979, who
are paid on a 50% basis shall receive vacation pay
based on their average weekly earnings during the
previous year. Employees hired thereafter shall re-
ceive vacation pay based on the forty (40) hour
guarantee.
After any fifty-two (52) week period of service
with the Employer, an employee who quits or is
discharged from employment prior to receiving his
vacation shall, in that event, receive his earned va-
cation pay in lieu of days off.
ARTICLE 7-WAGE RATES AND JOB CLAS-
SIFICATIONS
442
WEBB FORD, INC.
Section 1. It is stipulal
minimum compensation tc
follows:
1
12/
Lead Truck Mechanic
Testers and Inspectors
Journeymen Mechanics-'
Semi-Skilled Employees
Section 2. Employees as
centage basis (Bodymen an
fifty per cent (50%) of the
the insurance-labor rate.
Section 3. After the em 1
first forty (40) hours in a
an additional One Dollar
hour thereafter in the week
The provisions of the contra(
to January , 1979. As a resul
employees backpay for the pe
March 16, 1979. Some of the me
ly and through their union rep
to recover their backpay from
since the contract set forth chat
ics were paid, some of the e
about their pay after the contrac
Vander Woude received a b;
17 and another one on March
second check, Vander Woude
slips, which reflected the nut
worked, and concluded that Re
tional backpay in the amount o
also believed that he was owe
"specials." Specials were autot
Respondent discounted the use
labor and parts. During the bad
ics had not received their full h
formed on specials. Vander Wot
roactive backpay agreement bl
the Union should include comp
performed during the backpay p
he had worked on about 20 spe
period but was willing to settle
difficulty in computing the exac
In an attempt to recover back
were still due him under the n
agreement, Vander Woude sp(
George Biederman and Office
occasions from early April 197'
' The term "booked hours" refers to th
particular repair job. For customer pay
warranty), Respondent uses the Chiltc
number of booked hours to assign to each
ics. For warranty work (cars under facts
the Ford Warranty Manual to determine
assign to each job. Prior to the executiot
had received $7.25 per booked hour for c
booked hour for warranty work. Pursuan
were to receive a minimum of $7.50 per b
ted and agreed that the discharge. Biederman told him that he would talk to the
employees shall be as Webbs about his specials and that he should speak to
Perri about the other backpay. Vander Woude received
backpay for his specials in the amount of $50 on April
/l- l/- 1/1- 28, 1979. Thereafter, Vander Woude continued to ask
/31/79 12/31/80 12/31/81 Biederman about the remaining backpay of about 71
$8.25 $8.75 $9.40 still owed to him. He talked to Biederman concerning his
7.50 8.00 8.65 backpay about once a week. Biederman replied that Re-
7.50 8.00 8.65 spondent was still computing the amount.
4.50 5.00 5.50 In the period after the contract was signed, Union
Representative Joe Kumstar was pressing Jack Webb
about the backpay owed to Vander Woude and other
signed to work on a per- employees. According to Jack Webb, only three employ-
id Painters) shall be paid ees, Vic Wyman, Jeff Goffe, and Vander Woude, pressed
e customer labor rate or for payment for specials. After a conversation between
Webb and Kumstar, two of the employees agreed to
ployees have booked the accept $50 and one agreed to accept $40. Vander Woude
week, they shall receive was, of course, also seeking additional backpay for his
($1.00) per each booked regular work. Kumstar testified that Vander Woude told
him that he was "being harassed" on the job and that the
t were made retroactive Webbs told him that Vander Woude was "harassing ev-
t, Respondent owed the erybody for his money." Kumstar testified that he talked
riod January 1 through to Jack Webb about the Vander Woude backpay "two or
three times a week." Jack Webb told Kumstar that
chanics, both individual- Vander Woude was a "troublemaker" and that he
espondent. In ade effdition, "would like to get rid of' him. He also said that the
nges in the way mechan- backpay matter was being considered.3
!mployees had questions On March 30, 1979, employees Goffe and Vander
:t went into effect. Woude, as well as other employees, were at the front
ackpay check on March office questioning the amount of their paychecks. Appar-
28. After receiving the ently the paychecks did not properly reflect the hours
reviewed his booking they were to be paid. Goffe was explaining to the book-
mber of hours he had keeper that, under the collective-bargaining agreement,
spondent owed him addi- he was entitled to payment for his clocked hours even
f $71.79. Vander Woude though his booked hours were less than his clocked
d an additional sum for hours. He was paid erroneously on his booked hours and
nobile repairs for which not his clocked hours. At this point, Jack Webb entered
ual price on mechanics' the office, overheard Goffe's comments, and fired him on
kpay period, the mechan- the spot. He said, "That's your final check. You haven't
hourly rate for work per- made over guarantee since this whole thing started." 4
ude believed that the ret- On April 2, after a meeting between union and man-
etween Respondent and agement representatives, Goffe was reinstated. He lost I
)ensation for the specials day's pay. On April 3, when Goffe returned to work, he
eriod. He concluded that received a paycheck which reimbursed him for the defi-
zcials during the backpay ciency in pay about which he had complained.5
e for $50 because of the
:t amount he was owed. 2 Jack Webb testified that Kumstar talked to him about backpay for
:pay amounts he believed Vander Woude's specials about "two or three times." Webb did not spe-cifically deny Kumstar's testimony. set forth above. that he mentioned
new collective-bargaining getting rid of Vander Woude.
)ke to Service Manager I Failure "to book" or "to make" guarantee refers to a comparison be-
Manager Perri on many tween the mechanics' booked hours and their hours on the clock. The
until shortly before his collective-bargaining agreement provided that the guaranteed workweek
was 40 hours. Thus, after the contract became effective, if hours on the
clock exceeded hours booked, the mechanics were paid for the number of
e number of hours assigned to a hours on the clock. In these instances, according to Office Manager
,ork (on cars not under factory Perri, Respondent lost money. Prior to the contract, the mechanics were
on's Manual to determine the only guaranteed S150 per week and were always paid on the basis of
h job performed by the mechan- booked hours.
ory warranty), Respondent uses 5 The above is based on the credible testimony of Goffe. Vander
the number of booked hours to Woude essentially corroborated Goffe. Webb's testimony was not signifi-
n of the contract, the mechanics cantly different. Indeed, he conceded that the discharge was an impulsive
ustomer pay work and 6.75 per action and related to Goffe's complaint about backpay. Webb testified as
it to the contract. the mechanics follows:
ooked hour Continued
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In late June, Goffe had still not been reimbursed for
his specials. At or about this time, Goffe approached
Service Manager Biederman and requested reimburse-
ment. He received payment for his specials in the
amount of $50 on July 6, 1979. In early June, Goffe also
complained to Biederman about the fact that Respondent
had not paid a bonus to employees as provided in the
contract on hours worked in excess of 40 hours during
the previous week.
Union Representative Kumstar testified that after the
contract was signed he had a number of discussions with
management representatives concerning another aspect
of the pay of the mechanics. The question was whether
the employees were to receive 50 percent of the booked
rate or less. 6
A. It took place in our business office. I told-I drove my car into
the shop and as soon as I got out there were about five people that
were there thinking their car was going to be done at 4. It was
around 4 o'clock, I believe. I looked down the line and saw five me-
chanics missing. So there were at least four people, five people there
waiting for their cars. So I said, "Well, I will find out for you imme-
diately." I walked into the office and here they were all hovering
around Alice at the time. I said, "What is going on?"
Q. Who all was there, do you recall?
A. It was Jeff Goffe, Randy, Jeff Sunny, there were two other
mechanics and I don't recall them.
Q. Now, what did you say to them and what did they say?
A. I said, "What the heck is going on in here? We have got people
waiting for cars out there. You should be in your stalls working."
Do you want me to continue?
Q. Yes, please.
A. Then Jeff Goffe popped up with that they were trying to
figure out their back pay. I told them that we were already working
on their back pay and it was going to be paid to them and that he
would or should be the last one to holler about it because he hadn't
made book since January or very seldom made it and he was one of
the ones that had the most come-backs and was a really slow
worker.
Q. What did you say to him? Is that the extent of it?
A. Yes.
Q. Then what happened?
A. I told them (him I was going to terminate them himl.
Q. Did you have a meeting later with Mr. Kumstar about this?
A. Yes. I believe the next day Joe came in and we-he was plea
bargaining with me. He told me that Jeff had a lot of problems, he
had judgment notes and he had to move and so forth. I pulled out
his record at the time and told Joe that he was just not a qualified
line mechanic. After we talked for a while, he said, "Why don't you
give him one more chance?" I said, "I will tell you what I will do. I
will give him one more chance and as soon as it starts showing up
that he is not getting the job done, I am going to have to let him
go."
Later he testified as follows:
Q. (By Ms. Brown) Isn't it a fact that on March 30th, when you
encountered Jeffrey Goffe in the front office, discussing his pay-
check with the payroll clerk, it was at that moment you decided to
fire him?
A. Yes.
JUDGE GIANNASI: I'm sorry, it was at what moment?
THE WITNESS: At that moment.
Prior to the execution of the contract, the pay rate which the me-
chanics received had been computed as follows: Respondent charged its
customers $17 per booked hour for customer pay work. Respondent
would subtract $2.50 for overhead and Respondent and the mechanics
would split the remaining $14.50 "50-50." Thus, the mechanics received
$7.25 per booked hour for customer pay work. Respondent charged Ford
Motor Company $16 per booked hour for warranty work. Respondent
would subtract 2.50 for overhead and the mechanics and Respondent
would split the remaining $13.50 50-50. Thus, the mechanics received
$6.75 per booked hour for warranty work. On or about March 16, Re-
spondent raised its customer pay charges to S23 per booked hour. On or
about May 8, Respondent raised its warranty charge to $20.55 per
On June 21, 1979, representatives of the Union and of
Respondent met to discuss several of the outstanding pay
issues, including the so-called 50-50 issue which had
spawned two grievances. Union Representative Kumstar
presented, but did not file, a group or blanket grievance
which sought to keep the mechanic's pay at the 50-50
split. The thrust of the Union's position was apparently
that the contractual wages were a minimum and that the
50-50 payment schedule was a past practice left undis-
turbed by the contract. Nothing was resolved at this
meeting, but employee Vic Wyman was called into the
meeting to explain the employees' position. Vander
Woude testified that he also attended the meeting. Jack
Webb denied that Vander Woude was present. Kumstar
at first testified that Vander Woude was present; later he
said he was not. Kumstar did testify that Vander Woude
was present at a meeting at Respondent's facility at the
end of June. He could not remember what that meeting
was about. Vander Woude's recollection of the substance
of the meeting is vivid and compatible with that of other
witnesses. Webb was the least reliable of the three wit-
nesses. I believe that Vander Woude was present at some
discussion with management officials on contractual
issues in June, although it may not have been at the June
21 meeting.
At the June 21 meeting, the parties also discussed sev-
eral other pay issues, including whether the payment of
vacation pay would be based on a guaranteed figure or
an average earnings figure and whether all of the me-
chanics had been paid their backpay. Vander Woude, for
one, still had some backpay owed to him. Three or four
employees, including Vander Woude, were pressing the
vacation pay issue, according to Jack Webb. The vaca-
tion pay issue was resolved and management officials ap-
parently promised to look into the other unresolved mat-
ters.
After the June 21 meeting, Jack Webb spoke to Kum-
star and also to several mechanics, including Jeffrey
Goffe, about whether the mechanics would accept an in-
crease in pay in exchange for dropping their insistence
on being paid on a 50-50 basis. Goffe said he would
have to talk with his fellow employees before accepting
such an offer.
One or 2 days after July 6, 1979, Kumstar presented
five separate grievances concerning the 50-50 pay issue
to Jack Webb.7 He had learned that a blanket grievances
would not be proper and therefore solicited written
grievances from Goffe, Vander Woude, and another em-
ployee to go with the two grievances which had already
been filed with him. Goffe submitted his grievance on
June 23 and Vander Woude submitted his on June 26. 8
booked hour. After these increases, under the prior 50-50 formula, the
mechanics would have received about $10.25 per booked hour for cus-
tomer pay work and about $9 per booked hour for warranty work-more
per hour than they were receiving under the collective-bargaining agree-
ment.
I Respondent's contention that two grievances on the 50-50 issue were
presented sometime later, in March 1980. does not refute the evidence
that the matter was also presented in June and July 1979.
R Jack Webb admitted that he talked to Goffe and other mechanics
about their accepting a pay raise. He denied, however, that this had any-
thing to do with the grievances over the 50-50 issue which he denied
Continued
444
WEBB FORD. INC.
During the period when Vander Woude and Goffe
were pressing the various pay issues with Respondent,
they worked under the supervision of Service Manager
Biederman and, for part of the time, Assistant Service
Manager Ray Mason. On one occasion, when Biederman
was distributing some backpay checks to the mechanics,
Vander Woude asked Biederman if he had a check for
him. Biederman replied that he just gave them to his
friends. Biederman then called Vander Woude a "cry
baby" and said that his work always "came back." 9 After
a heated exchange, Biederman said, "You think you are
getting a lot of warranty now. All you are going to get
is warranty.""' Then Biederman picked up the phone,
handed it to Vander Woude, and said, "Go ahead and
call the union, I don't care.""
Ray Mason, a service writer who was promoted to as-
sistant service manager in May 1979, testified that, short-
ly after what apparently was the above or a similar inci-
dent, he and Biederman spoke about Vander Woude and
Goffe. He testified as follows:
Q. What do you recall being said?
A. He was just talking about Randy, he would
like to get rid of Randy, but he didn't have enough
warning notices on him to fire him legally, that
Randy and Jeff Goffe were two of the instigators
for the union and they were two of the reasons we
were having so many problems in the shop with the
union contract.
receiving. In this respect, I credit the testimony of Goffe and Kumstar
over that of Jack Webb. Goffe's testimony is consistent with that of
Kumstar who testified that Webb talked to him about offering a raise in
order to settle the grievances and drop the guarantee. Webb's explanation
of why he made such an offer was contrived and confused. He claimed
he made the offer to the mechanics because he was forced to compete
with Illinois dealerships in hiring qualified mechanics. He testified that he
even talked to Kumstar about hiring new mechanics and that it was in
this context that he asked Kumstar whether the men would agree to a
pay raise. However, Webb did not demonstrate that he needed new me-
chanics at the time or why he had to make the offer to mechanics al-
ready employed just several months after he signed a contract covering
wages. Indeed his testimony is a bit inconsistent since he stated at one
point that he had plenty of work and at another that he was farming out
warranty work and at still another that he was losing money. He also
seemed to be resisting the efforts on the part of employees for higher pay
under the contract. The timing of the conversations after the June 21
meeting as well as the fact that, of the employees approached, four out of
five had filed grievances, makes the testimony of Goffe and Kumstar
more plausible. In addition to Webb's contrived testimony on this point, I
found parts of his testimony exaggerated. For example, when pressed, on
cross-examination, about a report he received from Mike Webb about
Goffe and Vander Woude, which allegedly formed a basis for their dis-
charge. he admitted he did not follow through on the report, and he
seemed evasive in giving details about his objections to Goffe and
Vander Woude.
A "comeback" is a term signifying that a car on which a mechanic
worked was returned within 90 days by a customer for the same prob-
lem. Vander Woude only received one warning for a comeback problem.
10 Warranty work was less desirabe than customer pay work because
the Chilton's Manual designated a greater number of booked hours for
each job than did the Ford Warranty Manual. A mechanic who was as-
signed more warranty work than customer pay work would earn less be-
cause it would be more difficult to "book" as many hours as he would
book on the equivalent amount of customer pay work.
" Vander Woude also testified to another similar confrontation be-
tween him and Biederman. Biederman did not testify. Goffe and Mason
essentially corroborated Vander Woude's testimony that he had confron-
tations with Biederman.
He said something to the effect, "Give them
strictly garbage warranty work," especially Randy,
"Give Randy warranty garbage warranty work. We
will starve him to death," something on that basis.
Not long after this conversation, Vander Woude and
Goffe began to receive a series of warning notices which
Respondent subsequently used to justify their discharges.
Following the above conversation and until the end of
June, when Mason was fired, Biederman continually told
Mason that "he wasn't giving Randy and Jeff enough
warranty work, garbage work, and he was giving them
too much customer pay." During these conversations,
Biederman also told Mason that Vander Woude and
Goffe were the "main agitators of the union in the shop
and they were the ones that were giving us the problems
with the union and to just try to keep giving them gar-
bage work, if possible." On one occasion, on about June
12, 1979, Biederman directed that Mason write up a
warning for Vander Woude stating that he returned to
work late from lunch without calling in. This was
Vander Woude's very first warning as an employee.
Mason protested that Vander Woude had a good excuse;
namely, that he had car trouble. Biederman told Mason
to write up the warning because "we need the warning
notices on him that will help us get rid of him." 2
On June 29, 1979, Vander Woude filed a charge with
the Board alleging that Respondent had discriminated in
its work assignments to him because of his union and
protected concerted activity. Respondent was served a
copy of that charge by registered mail on July 6, 1979.
On July 6, Vander Woude again spoke to Office Man-
ager Perri about his backpay complaint. Perri explained
how she had computed his backpay. Vander Woude dis-
agreed with the method of computation and told Perri
that "every one's back pay was short, not just mine." He
received a check for $71.79 for the remainder of his
backpay on or about July 9, 1979.
Both Vander Woude and Goffe were discharged on
July 13, 1979, allegedly for failing to book guarantee
after an accumulation of warnings.
12 The above is based on the uncontradicted testimony of Ray Mason.
George Biederman did not testify. As assistant service manager for Re-
spondent, Mason worked directly under Biederman for 2 months in May
and June 1979. He was discharged in late June for absenteeism. Respond-
ent attacks Mason's credibility on several grounds, but I found him to be
quite a candid person and I found his testimony to be reliable It is true,
as Respondent points out, that Mason believed he was unjustly fired by
Respondent. However, the record shows that Respondent often replaced
service managers and assistant service managers. Biederman himself was
fired Frankly, I thought Mason's testimony in explaining why he thought
he should not have been fired was an example of his candor. He did not
impress me as holding a grudge against Respondent. Indeed, according to
Louis Pieper, the present service manager. Mason dropped into Respond-
ent's facility a few weeks before the hearing and had a cordial conversa-
tion with him. Mason also candidly admitted participating with Bieder-
man in the altering of work records. While this conduct does not qualify
Mason for sainthood, neither does it diminish his credibility, particularly
since Biederman, who was his boss, suggested the scheme. Mason was
testifying about Biederman's equally reprehensible scheme to get rid of
two employees for their union and protected activity. Mason's entire tes-
timony is consistent with such a scheme on the part of Biederman Re-
spondent did not successfully controvert Mason's testimony and Bieder-
man did not testify. In these circumstances, I credit Mason's testimony
445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discussion and Analysis
I. The employees were engaged in protected
concerted activity of which Respondent had
knowledge
Employees Vander Woude and Goffe were engaged in
protected concerted activity when they persisted in
pressing claims under the collective-bargaining agree-
ment for retroactive pay, vacation pay, and guaranteed
percentage pay for themselves and the other mechanics
working for Respondent. Vander Woude was particular-
ly vocal in pressing for his backpay and he asserted that
Respondent's method of computation shortchanged the
other employees as well. Goffe had been fired at the end
of March after a dispute over whether he and other em-
ployees were being paid in accordance with the contract,
at which time Jack Webb accused him of not making the
contractual guarantee. Both employees were also instru-
mental in pressing the other pay issues spawned by the
new collective-bargaining agreement, including the 50-50
pay issue. Jack Webb reacted to the 50-50 grievance by
attempting to get the mechanics to agree to an increase
in pay in exchange for their withdrawal of the grievance.
He specifically spoke to Goffe about this possibility.
Both had filed individual grievances on this issue and
Union Representative Kumstar had had several discus-
sions with management about the 50-50 issue, a prime
concern of the mechanics. In these circumstances, it is
clear that Goffe and Vander Woude were engaged in
filing grievances and asserting rights under their recently
enacted collective-bargaining agreement-clearly pro-
tected concerted activity. Both employees also sought
relief through their Union whose establishment they had
been instrumental in obtaining. Respondent knew that
both Goffe and Vander Woude were asserting contrac-
tual rights and seeking resolution of contractual pay
issues which were of concern to all the mechanics and to
their union representative. Respondent also knew that
they had filed grievances through their Union. The dis-
charge of employees for asserting such rights is violative
of Section 8(a)(l) of the Act, and, when employees
pursue their rights through a union, of Section 8(a)(3) as
well. 3
2. The employees were discharged for engaging in
protected concerted activity both with and without
the aid of their Union.
Once the General Counsel has established that employ-
ees have engaged in protected concerted activity of
which the employer had knowledge, he must also estab-
lish that the employer discharged the employees for such
prohibited reason. Under the Board's recent decision in
Wright Line, a Division of Wright Line, Inc., 251 NLRB
1083 (1980), the General Counsel must establish a prima
facie case that protected conduct was a motivating factor
in the employer's decision. If he does, then the burden
o3 Retaliation against employees for enforcing contractual rights. in-
cluding the filing of grievances, or engaging in protests over pay and
working conditions which fairly reflect group concerns are unlawful. See
N.L.R.B. v. Ben Pekin Company, 452 F.2d 205, 206 (7th Cir. 1971); Hugh
H. Wilson Corporation v. N.L.R.B., 414 F.2d 1345, 1347-50 (3d Cir. 1969),
cert. denied 379 U.S. 935 (1970).
shifts to the employer to demonstrate that the decision to
discharge would have been the same even in the absence
of the protected conduct. If the employer fails to meet
its burden the General Counsel will prevail. In this case,
applying the Wright Line test, I find that the General
Counsel has proved a violation and Respondent has not
shown by credible or persuasive evidence that Goffe and
Vander Woude would have been discharged in the ab-
sence of their protected concerted and union-related ac-
tivity.
(a) The employees' protected conduct was a motivat-
ing factor in Respondent's decision to fire them: As indi-
cated above, both Vander Woude and Goffe were active
in the contractual pay issues which remained unresolved
after the signing of the collective-bargaining agreement.
The evidence shows that Jack Webb displayed animosity
towards both Vander Woude and Goffe for pressing
these issues. He told Kumstar that Vander Woude was a
"troublemaker" and that he would like to "get rid" of
him. He fired Goffe on the spot in late March when he
learned that Goffe was protesting his pay under the new
contract." Such animus was also reflected in the state-
ments of Service Manager George Biederman who or-
dered that Goffe and Vander Woude be assigned the less
desirable and less lucrative warranty work. Biederman
clearly related his order to the protests of Vander
Woude and Goffe and their affiliation with the Union. In
a statement to his assistant, Biederman said that Goffe
and Vander Woude were "two of the instigators for the
union" and "were two of the reasons we were having so
many problems . . . with the union contract. "Biederman
also directed that warning notices be written for Vander
Woude to support his discharge. In addition, the timing
of their discharges on July 13, 1979, supports the infer-
ence that they were unlawfully motivated. The dis-
charges of both activists came on the same day within
about a week of the filing of grievances, two of which
were signed by them, and within a few days of receipt of
a charge alleging an unfair labor practice in the assign-
ment of work to Vander Woude because of his contrac-
tual complaints. Webb himself had displayed a concern
over Goffe's role in the 50-50 grievances when he talked
to him individually about a settlement of the matter. He
also spoke to Union Representative Kumstar about the
grievances. The 50-50 pay issue surfaced on June 21 and
" Respondent contends in its brief that Goffe's March 30 protest, in
which he was joined by several other employees, was a work stoppage in
violation of the contractual no-strike clause, relying, in part, on Webb's
off-handed testimony that, at the time, several customers were waiting
for their cars. At the outset, the argument itself confirms the concerted
nature of Goffe's March 30 activity and implicitly confirms that the dis-
charge of Goffe was related to such activity. More importantly, questions
are raised as to why Goffe was singled out for discharge for this work
stoppage and why a different reason-Goffe's alleged failure to book
guarantee-was utilized for this discharge. The only inference I can make
is that Webb was outraged at Goffe's leadership role in enforcing the
contract, a protected concerted activity. Certainly, Webb was not con-
cerned with the brief stoppage of work, if any, attendant to the March 30
protest since he never even disciplined the other employees for their par-
ticipation in it. Nor does the evidence show any significant interference
with work which would constitute in any way a violation of the contrac-
tual no-strike clause. It is unclear, for example, whether Goffe was sup-
posed to be working when he was talking to the bookkeeper about the
deficiency in pay.
446
WEBB FORD, INC.
was festering from that day until the discharges of Goffe
and Vander Woude on July 13. In these circumstances,
the General Counsel has proved, by overwhelming evi-
dence, that, prima facie, the discharges were motivated
by unlawful reasons.15
(b) Respondent has not rebutted the General Counsel's
evidence nor shown that it would have discharged Goffe
and Vander Woude for cause notwithstanding their
having engaged in protected union and concerted activi-
ty: Respondent alleges that the employees were fired for
accumulated warnings, most of which were for failure to
make or book guarantee. I find that this reason was a
pretext and not the real reason for the discharges, par-
ticularly because the record demonstrates disparate treat-
ment against Vander Woude and Goffe and because un-
contradicted testimony demonstrates that Respondent
was making unfair assignments to these two activists
with an eye towards building a record which would sup-
port their discharge. Indeed, both Goffe and Vander
Woude protested through their union representative
some of the warnings they received during the course of
their employment. So far as the record shows, Goffe and
Vander Woude were the only two employees discharged
for failing to book guarantee and the record shows that
other employees with numerous warnings were not fired
as a result of an accumulation of warnings. In addition,
the reasons advanced by Respondent do not withstand
scrutiny and, thus, Respondent's evidence not only
shows the reasons to be pretextual, but also buttresses
the evidence in support of a finding that the discharges
were unlawful.
Initially, the reason assigned for the discharge of Goffe
on March 30, 1979, failure to book guarantee, was not
the real reason for Respondent's action. Webb conceded
that he made the decision to discharge on the spot when
he confronted Goffe protesting his pay along with a
group of other employees. At this point, Goffe had re-
ceived three warnings, none of which were considered
by Webb before his precipitous action. Two were dated
March 5, 1979: One stated simply "never on time"; the
other accused him of "carelessness and neglect" in his
work on a car that had been returned four times. Both
were signed by George Biederman and the then assistant
manager, neither of whom testified in this proceeding.
Goffe asked Biederman if he had given a warning about
tardiness to employee Koontz and he said he had not.
Goffe received another warning for tardiness on March
20. Goffe again asked Biederman if he gave Koontz a
warning and he said he did. Koontz, who was not dis-
charged for tardiness so far as the record shows, had a
tardiness problem. Union Representative Kumstar's un-
's Although the filing of Vander Woude's charge on June 29, 1979,
may have struck Respondent as another example of Vander Woude's ac-
tivism, I do not find, apart from the timing of the discharge, any inde-
pendent evidence that Respondent's discharge was motivated by a desire
to retaliate against him for filing the charge as opposed to his other pro-
tected and union activity, I shall therefore dismiss the allegation in the
complaint that Respondent's discharge of Vander Woude also violated
Sec. 8(aX4) of the Act. The General Counsel also alleges that Goffe's dis-
charge was based, in part, on his complaints concerning the acquisition of
a new brake lathe. I find that the General Counsel has not established by
a preponderance of the evidence that these complaints amounted to pro-
tected concerted activity or that they were a causal factor in Goffe's dis-
charge.
contradicted testimony was that, after Goffe's March 30
discharge, he was permitted to see Koontz' timecards
and that a majority of them "either weren't punched in
or they were signed in after 8 o'clock." This was con-
firmed by Goffe's uncontradicted testimony that Koontz
came in late "every day." ' 6 Moreover, Webb did not
mention tardiness when he fired Goffe on March 30. Nor
did he mention the quality of Goffe's work, the subject
of the second warning issued to Goffe on March 5.
Goffe's uncontradicted testimony on this point was that
he worked on a car which was returned to the shop the
next day. The car had a different problem from that
which Goffe had fixed the day before. Biederman
blamed him for the problem but another mechanic
worked on the car. Goffe protested the warning because
other mechanics had worked on the car after he did. He
never worked on the timing or the distributor, problems
which were attributed to him in the warning. Thus, the
uncontradicted testimony is that the work for which
Goffe was accused of improperly performing was actual-
ly performed by other mechanics. 11
There were no warnings in Goffe's file for the failure
to book guarantee as of March 30, 1979, when he was
fired ostensibly for that reason by Webb. However,
Goffe was issued a warning for this infraction, as well as
for tardiness, after Jack Webb had fired him, by Bieder-
man who obviously had no prior knowledge that Goffe
was to be fired. He was, of course, receiving his pay-
check when Webb confronted him. The fact that he re-
ceived this warning after he was fired demonstrates the
pretextual aspect of the reason offered by Respondent.
Moreover, Respondent did not even begin to issue warn-
ings for failure to book guarantee until June, according
to Perri, because it was then when she was advised by
the Union she could warn employees for failing to book
guarantee. Indeed, the reason the issue of failing to book
guarantee became important was that, when the contract
became effective on March 16, the mechanics were re-
quired to be paid their clocked hours if the booked hours
were less than the clocked hours. And it was the fact
that Goffe had the temerity to try to enforce the con-
tract in this respect which infuriated Webb and caused
him precipitously to discharge Goffe. In these circum-
stances, it is clear that the discharge of Goffe on March
30, 1979, was shown to have been motivated by Goffe's
protected concerted activity, namely, his attempt to en-
force the contract in the company of other employees
with similar interests, and Respondent's evidence does
not refute this inference but rather enforces it. 8
'6 After the Union protested Respondent's tolerance of Koontz' tardi-
ness in connection with the complaint about Goffe's warning, Respond-
ent agreed to change Koontz' work hours. This did not take place until
July 2. 1979.
" Another warning in Goffe's file was dated January 11. 1979. and was
issued for his failing to diagnose a problem on a company-owned car that
was to be sold as a used car by John Webb At the time Goffe was work-
ing in the used-car department. Webb testified that the car was not fixed
for a long period of time and that Goffe said he was "waiting for parts"
There is no evidence that Respondent specifically relied on this warning
either in the March 30 or in the July 13 discharge.
"' As shown supra. Goffe was reinstated the day after his discharge fol-
lowing the intervention of his union representative He is entitled to reim-
bursement for any loss of pay he suffered by virtue of this discharge.
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Judged against the background of the unlawful March
discharge of employee Goffe for attempting to enforce
contractual rights, the reasons offered by Respondent for
the subsequent discharge of Goffe on July 13, 1979, are
also shown to be pretextual. Respondent alleges that
Goffe's discharge on July 13 was based on his failure to
book guarantee which was documented by warnings
issued to him on July 6, 13, and 16. The latter warning,
issued on the day Goffe picked up his last paycheck, was
apparently based on his last week of work, even though
it was dated after his discharge. The discharge apparent-
ly was also based on his previous warnings, all of which
were dated prior to his March 30 discharge and were, in
my view, not the real reasons for that discharge. The last
three warnings for the failure to book guarantee were
the only warnings Goffe received since his reinstatement.
The July warnings concerning the failure to book
guarantee were not the real cause of Goffe's July 13 dis-
charge. The first warning covered the week ending June
29; Goffe had clocked 39.6 hours and had booked 29.6
hours. It was issued on the same day Goffe received re-
imbursement for special pay which he and his union rep-
resentative had been seeking for some time. The second
warning was issued on the day of Goffe's discharge, sev-
eral days after his written grievance and those of four
other employees were given by Kumstar to Webb. The
warning covered the week ending July 7 in which Goffe
had clocked 37.4 hours and booked 33.8 hours. Goffe's
last warning covered a period in which Goffe booked
more hours than he had clocked. Webb testified that
warnings were not issued when a mechanic booked more
hours than he clocked. Thus, only two of Goffe's last
three warnings were justified on the basis of failure to
make guarantee or failure to book as many hours as were
clocked.
Vander Woude had no warnings on his record until
June 12 when he was issued a warning for coming back
from lunch late without calling in. The warning was
issued despite a legitimate excuse because Biederman
wanted to build a record to discharge him. The testimo-
ny on this point is uncontradicted.
On July 2, Vander Woude received three more warn-
ings. One warning was issued because Vander Woude al-
legedly had been in the shop on Saturday, June 30, with-
out permission. Vander Woude testified that he had in
fact received permission from Biederman the day before
to be in the shop. Kumstar, who investigated the incident
and protested the warning, testified that Biederman ad-
mitted to him that he had given Vander Woude the nec-
essary permission. When Kumstar told Webb that Bie-
derman had given permission to Vander Woude to be in
the shop, Webb conferred with Biederman who denied
that he had given Vander Woude permission to be in the
shop and that he had admitted as much to Kumstar. De-
spite this contradiction, Webb refused to withdraw the
warning. On this record, it is clear that the warning was
unjustified and undoubtedly part of Biederman's cam-
paign against Vander Woude.
Another warning was issued to Vander Woude be-
cause of an alleged comeback problem on customer Jack
Taylor's car. In March, Vander Woude had replaced the
rear main seal and had removed the transmission to fix
an oil leak. After he worked on the car, Vander Woude
suggested to Biederman that Biederman set up a confer-
ence between Taylor and a Ford Motor Company repre-
sentative since Vander Woude was not sure that the oil
leak was fixed. On June 29, when the Taylor car was
towed into Webb Ford, Biederman issued Vander
Woude a warning. Biederman did not consult with
Vander Woude before issuing the warning. In light of
the timing of this warning, 3 months after the alleged
problem, and Biederman's stated desire to build a case
against Vander Woude, it is likely that Biederman used
this incident to justify the issuance of another warning.
The third warning that Vander Woude received on
July 2 was issued allegedly because of Vander Woude's
failure to book guarantee. This was the first warning for
this infraction that Vander Woude received. It covered
the week ending June 23. Vander Woude had clocked 40
hours and had booked 33.1 hours. Mechanics Hedrick,
Schultz, and Sunny also failed to book guarantee that
week, but they did not receive warnings.
Vander Woude received his fifth warning when he re-
ceived his paycheck on the afternoon of July 6. This
warning, which applied to the week ending June 29, was
also for failure to book guarantee. Vander Woude had
clocked 36.9 hours and had booked 35.2 hours. Howev-
er, the timing of this warning is suspect. On the same
day of the issuance of this warning, on July 6, Respond-
ent had received a copy of the unfair labor practice
charge that Vander Woude had filed. Moreover, on the
very day that this warning was issued, Vander Woude
had spoken to Perri about his backpay and had told her
that, because of the formula that she had used in calcu-
lating the backpay, all the mechanics' backpay checks
were insufficient.
On July 13, several days after the 50-50 grievances
were presented to Webb, Vander Woude received his
sixth warning and was terminated. This warning, which
applied to the week ending July 7, was also for failure to
book guarantee. Vander Woude had clocked 40 hours
and had booked 31.9 hours.
Vander Woude received a seventh warning on July 16
when he picked up his final paycheck. This warning was
also for failure to book guarantee. It applied to the week
ending July 14. He had clocked 31.5 hours and had
booked 31.2 hours. Thus, during the last week of his em-
ployment Vander Woude failed to book guarantee by
only three-tenths of an hour. Webb testified that he did
not review the records for the week ending July 14
before he decided to discharge Vander Woude and
Goffe. Yet Respondent issued warnings to both of them
after they were discharged, thus indicating that it was in-
terested in establishing a record to support their dis-
charges just as Biederman had related to his assistant
manager, Mason.
Jack Webb testified that he discharged Goffe and
Vander Woude because they were not booking enough
hours and because they had accumulated the warnings
discussed above, most of which were issued for failure to
book guarantee. Respondent also alleged that Webb's de-
cision was based on a report he received from Mike
Webb that he overheard Goffe and Vander Woude talk
448
WEBB FORD, INC.
about carrying over work into the following week in
order to make guarantee in each week. It is unclear how
this factor entered into Respondent's decisionmaking for
it was not reflected in any written warning. Moreover,
Webb did not discuss the problem with either employee
or their supervisor and admitted that such conduct was
widespread in the shop. This latter reason is thus an
afterthought which tends to weaken Respondent's reli-
ance on other reasons for the discharge.
Documentary evidence shows that Goffe and Vander
Woude were subjected to disparate treatment. First of
all, the warnings issued to Goffe and Vander Woude
must be considered in light of the evidence that they
were assigned work upon which it would be difficult to
book guarantee and that Biederman directed that warn-
ings be issued to Vander Woude to support his dis-
charge. Moreover, Perri testified that she was notified by
the Union at the time the contract was signed that Re-
spondent could discharge employees after issuing them
three warnings. However, Respondent offered no evi-
dence that three warnings automatically required dismiss-
al or that other mechanics were fired because they re-
ceived a certain number of warnings. Employee Schultz
received five warnings for failure to make guarantee be-
tween July 6 and August 31. He was never discharged;
he quit in October. Upon the receipt of his fifth warning
Schultz was simply given a 2-day suspension. Employee
Hoffman received seven warnings between October 1
and December 10, 1979, and he was not fired until Janu-
ary 10, 1980, when he refused to perform a particular
job. Louis Pieper, who fired Hoffman, did not testify
that he was fired for an accumulation of warnings. In
short, other employees who had as many warnings as
Goffe and Vander Woude were tolerated without dis-
charge. 9
Documentary evidence also shows that numerous em-
ployees failed to book guarantee without receiving warn-
ings from June 1979, when Respondent allegedly institut-
ed a system of issuing warnings for failure to book guar-
antee, until January 1980. A summary of compensation
records, prepared by the General Counsel from the ex-
hibits in this case, is reproduced as Appendix B to this
Decision [omitted from publication]. I have independent-
ly confirmed the accuracy of this summary. The com-
'9 Respondent contends that Hedrick, Schultz, and Hoffman worked in
the prep department and thus their work records cannot be compared to
those of Goffe and Vander Woude. Respondent is in error. Service Man-
ager Pieper testified that Schultz was transferred into the service depart-
ment in July and all of his warnings indicate he worked in the service
department. Likewise, all of Hoffman's and Hedrick's warnings indicate
they were in the service department when they received their warnings,
although there is some evidence, which I view as rather ambiguous, that
they did at some point work in the prep department. It is unclear wheth-
er the prep department is separate from the service department. Some of
the warnings of each of these employees were signed by Pieper and Bie-
derman who were service managers. And Goffe testified that the prep
department was where new cars were serviced and all the mechanics
serviced new cars. In any event, the failure of Respondent to discipline
Hoffman after his seven warnings for various offenses is significant re-
gardless of whether he worked in the service department. Hedrick re-
ceived three written warnings between June 1979 and January 1980, all
for failing to make guarantee. In the case of all three employees, Re-
spondent kept compensation records which reflected the difference be-
tween booked and clocked hours. Presumably these records were as sig-
nificant for them as they were for Goffe and Vander Woude.
pensation records of mechanics Finley, Hedrick, Hoff-
man, McCosh, Schultz, Sunny, Todd, and Wood show
that they failed to book guarantee a total of 74 weeks
during the relevant period and only 15 warnings were
issued to these people. Some of these employees failed to
make their booked hours by a wide margin. In contrast,
Vander Woude and Goffe received warnings in each of
their last few weeks of employment and, in several in-
stances, their deficiency was relatively small. Finally, de-
spite the evidence which shows that many employees
failed to make guarantee, only two employees, Goffe and
Vander Woude, were discharged for this deficiency.20
In sum, Respondent's evidence does not show that
Goffe and Vander Woude would have been fired but for
their union and concerted activity. These were the only
employees fired for failing to book guarantee despite the
fact that numerous other employees had similar prob-
lems. Nor were Hoffman and Schultz, employees who
had about the same number of warnings, discharged.
Indeed, many employees who failed to book guarantee
were not even issued warnings. Finally, both the assign-
ment of work to Goffe and Vander Woude and the issu-
ance of warnings to them were parts of a scheme con-
cocted by Biederman to force their discharge on pretex-
tual reasons for having pressed contractual claims both
individually and through their Union. Close analysis of
Respondent's alleged reasons for the discharges and Jack
Webb's testimony in support of those reasons confirms
rather than refutes the evidence concerning Biederman's
treatment of Goffe and Vander Woude.
CONCLUSIONS OF LAW
1. By discharging employee Jeffrey Goffe on March
30, 1979, for his protected concerted activity, Respond-
ent violated Section 8(a)(1) of the Act.
2. By discharging employees Jeffrey Goffe and Randy
Vander Woude on July 13, 1979, for their protected con-
certed and union activity, Respondent violated Section
8(a)(1) and (3) of the Act.
2 Webb also testified that his service department was losing money be-
cause of the accumulation of unapplied time which allegedly resulted
from the deficiency between booked time and clocked time. However,
Respondent has failed to show the relationship between the two figures
and has failed to demonstrate that Goffe and Vander Woude were pri-
marily responsible for the problem. Thus, in June 1979, the last full
month before the discharges, the amount for unapplied time was $1,327,
slightly more than in May. and the loss was $1,580. over $4,000 less of a
loss than in May. Indeed, in November 1979, when Goffe and Vander
Woude were no longer employed, the unapplied time figure was $4,428,
substantially more than in June, and the department showed a $966
profit. In fact, in December 1979, the department showed a loss of
$3,144, whereas the unapplied time was only $589. If the condition of un-
applied time were related to the losses sustained by the service depart-
ment and if the failure to book guarantee were the responsible factor, Re-
spondent would undoubtedly have issued warnings and penalized other
mechanics who failed to book guarantee in June 1979. Yet Respondent's
records show that Hedrick, Hoffman, Schultz, and Sunny all failed to
book the weekly guarantee a total of nine times in June and in only one
of those weeks did any of them-Schultz-receive any warnings Finally,
the failure to book guarantee depends to a certain extent on the work
assigned to employees. The evidence in this case certainly shows that
Biederman sought to have Goffe and Vander Woude assigned "garbage"
work George Webb testified that Biederman had a "lot to do with" the
profit and loss position of the service department and that he 'wa not
pleased with Biederman's stewardship of the department
449
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Such violations constitute unfair labor practices
which affect commerce within the meaning of Section
2(6) and (7) of the Act.
4. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent unlawfully discharged
employees Jeffrey Goffe and Randy Vander Woude, I
shall order Respondent to cease and desist from its un-
lawful conduct, post a notice to that effect, and offer
Goffe and Vander Woude full and immediate reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and
make them whole for any and all losses of earnings
caused by Respondent's unlawful discharges. The
amount due shall be computed as provided in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
as provided in Florida Steel Corporation, 231 NLRB 117
(1977).21
Upon the foregoing findings of fact, conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 22
The Respondent, Webb Ford, Inc., Highland, Indiana,
its officers, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in regard to their hire or tenure of employ-
ment or any term or condition of employment because
they engage in protected concerted activity under Sec-
tion 7 of the National Labor Relations Act either indi-
vidually or through their bargaining representative.
21 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
22 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer to employees Jeffrey Goffe and Randy
Vander Woude full and immediate reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions without prejudice to their se-
niority or other rights and privileges, and make them
whole for any loss of earnings or benefits they may have
suffered as a result of their unlawful discharges in the
manner set forth in "The Remedy" section of this Deci-
sion.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its facility in Highland, Indiana, copies of
the attached notice marked "Appendix." 23 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by Respondent repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive 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 cov-
ered by any other material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
:1 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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