Bill Loeper Ford

National Labor Relations Board - Board Decisions

Jan 3, 1978

234 N.L.R.B. 4 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bill Loeper Ford and International Association of Ma-
chinists and Aerospace Workers, AFLCIO. Case
31-CA-6627
January 3, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On August 18, 1977, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, l and
conclusions of the Administrative Law Judge, to
modify the remedy so that interest will be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977),2 and to adopt his recom-
mended Order, 3 as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Bill
Loeper Ford, Santa Maria, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
I. Delete the words "In any like or related man-
ner" from paragraph 1(b) and insert the words "In
any other manner."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule 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 (1950), enfd, 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716(1962).
3 Inasmuch as Respondent has been found to have violated Sec. 8(a)(3)
of the Act, a violation which "goes to the heart of the Act," we shall amend
the recommended Order, using the broad injunctive "in any other manner"
language rather than the language of a narrow order "in any like or related
manner." Springfield Dodge, 218 NLRB 1429, fn. 2.
234 NLRB No. 9
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT terminate the employment of Ha-
rold Rose, or any other employee, because he en-
gages in union or other protected concerted activ-
ities.
WE WILL NOT discourage membership in Inter-
national Association of Machinists and Aero-
space Workers, AFL-CIO, or any other labor or-
ganization of our employees, by terminating our
employees because they engage in union or other
protected concerted activities, or in any other
manner discriminate against any of our employ-
ees in regard to hire or tenure of employment, or
any term or condition of employment, except as
permitted by the proviso to Section 8(a)(3) of the
Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them in Section 7
of the Act.
WE WILL offer Harold Rose immediate and full
reinstatement to his former position of employ-
ment or, if that position is no longer available, to
a substantially equivalent position of employ-
ment, without prejudice to his seniority or other
rights and privileges, and make him whole for any
loss of pay, plus interest, which he may have suf-
fered by reason of his unlawful termination.
BILL LOEPER FORD
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This case
was heard before me at Santa Maria, California, on April
13 and 14, 1977, pursuant to a complaint and notice of
hearing issued on January 19, 1977, by the Regional Direc-
tor of the National Labor Relations Board for Region 31.
The complaint is based on a charge filed by International
Association of Machinists and Aerospace Workers, AFL-
CIO, hereinafter called the Union, and alleges violations of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, hereinafter called the Act. The parties
were accorded full opportunity to examine and cross-ex-
amine witnesses, introduce relevant evidence, and present
oral argument. The parties waived oral argument and time-
ly filed briefs with me.
Upon the entire record in this case, the briefs of the
parties, and my observation of the witnesses, I make the
following:
4
BILL LOEPER FORD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent has been a Cali-
fornia corporation, with an office and principal place of
business located in Santa Maria, California, where it has
been, and presently is, engaged in the retail sale and service
of motor vehicles.
In the course and conduct of its business operations,
Respondent annually purchases and receives goods and
services valued in excess of $50,000 directly from suppliers
located outside the State of California. Moreover, in the
course and conduct of its business operations, Respondent
annually derives gross revenues in excess of $500,000.
Upon these facts, which are not in dispute, I find that at
all times material herein Respondent has been an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
11. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that International As-
sociation of Machinists and Aerospace Workers, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue in this proceeding is whether Respon-
dent terminated the employment of Harold Rose because
he had engaged in union or other protected concerted ac-
tivities. Respondent contends that Rose was terminated
principally because management believed that his work
performance was unsatisfactory and not of a caliber suffi-
cient to justify his retention. It is also Respondent's conten-
tion that Rose's activities on behalf of the Union were
minimal and unimportant and formed no basis for his ter-
mination.
B. Pertinent Facts
1. Background facts
a. The personnel involved
William Loeper is president and manager of Respondent.
Loeper assumed ownership of the Santa Maria dealership
on October 20, 1960. Richard Werst is general sales manag-
er and has been employed in that capacity since June 1972.
Gerald Jeffers is service manager with supervisory authori-
ty over the personnel employed in the service department.
Additionally, Jeffers deals with service department custom-
ers and writes service repair orders. He has 24 years of
service in the automobile repair industry. Ted Jones is Jef-
fers' assistant and is employed as a service writer. Rose and
five other mechanics were employed in the service depart-
ment at relevant times. Until his termination on November
I Unless otherwise specified, all dates herein refer to the calendar year
1976.
3, 1976,' Rose had worked in Respondent's employ
throughout the entire period of the existence of the Loeper
dealership and had been initially employed by Respon-
dent's predecessor operation for approximately 3 years pri-
or to the 1960 change in ownership. At times relevant here-
in, Rose served in the capacity of a tuneup mechanic and
was the only mechanic who performed tuneup work. The
other five mechanics served as line mechanics and per-
formed a variety of other work. Rose considered his 1970
designation as the tuneup mechanic to have been a promo-
tion because it accorded him more predictable income and
less downtime than is occasioned by line mechanics.
The specified hours of work at Respondent's shop are
7:30 a.m. to 5:30 p.m., Monday through Thursday, and
from 7:30 a.m. to 5 p.m. on Friday. A I-hour lunch period
is observed.
b. Rose's job duties defined
In his capacity as a tuneup mechanic, Rose tuned auto-
mobile engines; overhauled carburetors; changed plugs,
points, and condensers; tested and repaired electrical wir-
ing and turn-signal switches; and checked smog systems
for compliance with standards requisite to the issue of
smog certificates.
In addition to the above-described duties, Rose also was
the mechanic responsible for doing all "comeback" work.
In essence, a comeback results when a vehicle previously
repaired in the shop is returned within a reasonable time to
the shop by the customer, and it is determined that the
earlier repair or adjustment to the vehicle was not properly
accomplished. One to two comebacks a month would be
"normal" for a mechanic. During his tenure, Rose was
compensated for comeback work performed on vehicles
initially repaired or adjusted by other mechanics but he
received no compensation for his own comebacks.
In September, Rose received pay for performing 209 sep-
arate repair jobs and in October he received compensation
for 194. In each of these months there were 22 working
days.
c. The union activities
On June 3, a Board election was conducted in Case 31-
RC-3461 and a joint certification of the Teamsters and the
Machinists resulted. Prior to the election, Rose had signed
a union authorization card. Subsequent to the certification,
six meetings were held which were attended by employees
of Respondent and other automobile dealers. Rose attend-
ed five such meetings. One meeting which Rose attended
was held on August 19 and, like the other meetings, em-
ployees of five dealerships in the area were present. During
the course of the meeting, a representative of the Machin-
ists presented a contract proposal which had been submit-
ted by the employers. A discussion ensued and Rose partic-
ipated actively in the discussions. He stated his dissatisfac-
tion with the general progress of events. During the course
of the discussion relating to the contract proposals submit-
ted by the employers, the Machinists representative spoke
in negative fashion concerning the proposals and Rose sug-
5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gested a strike vote be taken. A strike vote was taken and
carried. Rose suggested that the strike commence the fol-
lowing morning but the representative of the Teamsters
advised the assemblage that the Teamsters did not have
strike sanction. Rose responded that the Machinists had
authority to proceed to a strike and should do so. The
decision reached at the meeting was that no strike would be
called without the Teamsters participation. 2
d. Loeper speaks with Rose
The following morning, Loeper heard reports at the deal-
ership to the effect that Rose had attended the meeting the
previous evening and was intoxicated and vocal. No super-
visor or agent of Respondent was present at the meeting
and Loeper heard only unsubstantiated rumor as to the
nature and extent of Rose's participation in the meeting,
including the fact that Rose had advocated a strike against
the Company. In midmorning, Loeper approached Rose in
the shop and remarked about his proficiency as a "speak-
er." Rose responded that he had done what he thought was
right, but Loeper walked immediately away and did not
hear his response.3
In late October, Loeper approached Rose in the shop
and made the observation that there was going to be a
negotiations meeting in early November. He inquired if
Rose was going to attend the meeting. Rose asked the
reason for the inquiry and Loeper responded to the effect
that he surmised that Rose was now the "kingpin" since the
former employee representative of shop employees, Bobby
Burns, had left Respondent's employ. Rose answered, in
substance, that the Union had been designated to handle
the negotiations on behalf of the employees and that he,
Rose, would not be attending. Loeper responded, "I don't
know why they don't give up. They're not going to get a
damned bit more than they've got right now." 4
e. The extent of Rose's union activities
Rose did not act as an observer at the June 3 election
and played no special preelection or postelection role in the
efforts of the Union. In point of fact, Bobby Burns, who
left Respondent's employ voluntarily prior to mid-October,
served as the union observer, and as representative of the
shop employees in the subsequent negotiations. Further,
Jack Davidson, a parts department employee of Respon-
dent, served as the other employee representative in the
2 The foregoing is based on the credited testimony of Harold Rose.
Rose's testimony stands unrefuted and I discern no basis for rejecting his
testimony in this regard.
3 A composite of the testimony of William Loeper and Harold Rose
establishes the occurrence of a conversation. Loeper's testimony with re.
spect to this conversation was evasive, generalized, and marked by an ab-
sence of certitude with respect to the substantive elements of the exchange.
Loeper concedes having heard reports of the nature and extent of Rose's
participation in the meeting and I find that these reports encompassed the
fact that Rose had advocated strike action. Loeper did not deny this.
4 I base the foregoing finding upon the credited testimony of Harold
Rose. William Loeper concedes discussing the upcoming negotiations meet-
ing with Rose and he speculated that he may have discussed the same topic
with two or three other employees. Loeper also conceded harboring an
iiterest in knowing who would assume Burns' role as employee representa-
tive in the negotiations. Although his testimony constitutes a denial of
Rose's version of the conversation, I found Loeper's testimony less than
convincing. I conclude that Rose more accurately recounted the conversa-
negotiations. The record establishes that Davidson was
granted a $100-per-month wage increase subsequent to the
commencement of the union activities and was still in the
employ of Respondent at the time of the hearing herein.
f. Rose's insubordination
In the meantime, on Monday, March 8, Loeper brought
a low-mileage Mark IV to the dealership and later, at ap-
proximately 3:30 in the afternoon, Loeper spoke with Jef-
fers and asked Jeffers to have the engine tuned. Jeffers
called Rose into his office and assigned the tuneup work to
him. Rose became irritated and stated that he had been in
the shop since 7:30 a.m. and had had no work all day long.
He stated that he did not feel that he should be required to
tune the car this late in the afternoon. A discussion fol-
lowed wherein Jeffers told Rose that the normal working
hours were from 7:30 to 5:30 p.m., and that Rose had
ample time to accomplish the tuneup work during normal
shift hours. Rose performed the tuneup.
Thereafter, Jeffers reported the incident to Loeper, and
on Friday, March 12, Rose was called into the office and
spoke with Loeper and Jeffers. Loeper reiterated Jeffers'
earlier statement concerning the working hours which he
expected Rose to observe. He asserted that Rose was no
different from any other employee and was required to be
in the shop during normal working hours. He noted that
Rose had left early the previous three afternoons and had
given Jeffers the excuse that he had to see his doctor. Loe-
per asserted that this was a satisfactory explanation if, in
fact, Rose was consulting with his doctor, but Loeper add-
ed, in substance, that if Rose were using the time off for
other purposes, it would be grounds for immediate dismis-
sal. Loeper further stated that he would not tolerate any
insubordination on Rose's part. Rose became angry and
raised his voice in response. He walked toward Loeper and
approached in a manner which caused Jeffers to believe
that Rose was prepared to strike Loeper. Loeper was of a
similar opinion. Jeffers intervened and instructed Rose to
"back off." Rose did so, and a few more words were ex-
changed between Rose and Loeper. Loeper was visibly
upset and left the office. A few days later, Rose apologized
to Loeper. 5
Later, in early May, Richard Werst, Respondent's gener-
al sales manager, returned to the shop from lunch and
observed Rose in conversation with Ted Jones regarding
work to be performed on a pickup trailer which was parked
tion and I credit him. In doing so, I have carefully considered the content of
the questionnaire and accompanying statement which Rose filed with the
Union on November 22, which contains no references to the conversation,
and which, inferentially, at least, would negative the occurrence of the con-
versation. However, in light of Loeper's concession that he broached the
topic of the upcoming negotiating meeting with Rose, it is reasonable to
assume, as I do, that Rose gave a negative answer to the inquiry posed in the
questionnaire as to whether or not he had any conversation with any of his
superiors about the Union because, as he explained on cross-examination,
he gave a literal interpretation to the questionnaire inquiry and did not
consider Loeper's observation about the negotiations meeting to pertain to
union activities per se.
I The foregoing is based upon a composite of the testimony of Gerald
Jeffers, William Loeper, and Harold Rose. The testimony of Jeffers and
Loeper more accurately describes the series of events than does the testimo-
ny of Rose. I credit Rose only to the extent that his testimony is consistent
with the foregoing findings.
6
BILL LOEPER FORD
in the service driveway. As Werst interpreted Rose's com-
ments, he concluded that Rose was lodging a complaint
with respect to having to perform the work in the service
driveway rather than in a more advantageous work loca-
tion. Werst intervened and informed Rose that the work
had to be accomplished and that Rose had to take the good
jobs with the bad. He could not expect to take "all the
gravy." Rose endeavored to explain that he and Jones were
consulting together in order to determine a manner for
moving the trailer from its present location to a location
within the garage. Rose became visibly irritated and told
Werst that he did not work for Werst and that he should
not come out and tell him what to do. Werst left rather
than continue the dialogue with Rose and reported the
incident to Loeper, who, a few days later, called Rose into
his office and informed Rose that Werst had reported his
version of the incident. Rose attempted to explain but Loe-
per referred to the earlier incident involving the Mark IV
and told Rose that he would not tolerate disrespect toward
his department heads.6
g. Rose's failure to comply with scheduled work
hours
For a period of several months prior to November 3,
Jeffers and Loeper had been aware of Rose's failure to
comply with scheduled work hours and to reasonably limit
the duration of his coffeebreaks. Rose had been admon-
ished by Jeffers and Loeper over a period of several months
prior to November not to leave the shop early without
specific permission from his superiors. Jeffers had spoken
to Rose concerning this matter and in early October Loe-
per and Jeffers met with Rose and instructed him to com-
ply with attendance and work hours applicable to all shop
employees. Thereafter, Rose's conduct was such as to indi-
cate to Jeffers that he was complying with these instruc-
tions.
Compliance with reasonable time limitations on coffee-
breaks became a topic of corrective comment on Loeper's
part in late September or early October. This transpired
when Rose and Pete Castleberry, a line mechanic, had
road-tested a car to get coffee, a common practice in the
shop. On this occasion, Loeper had looked for Rose in the
shop and had been unable to find him. Loeper renewed his
search for Rose approximately 20 minutes later and Rose
had not returned, although he did so very soon thereafter.7
2. The alleged unlawful conduct
a. The termination of Rose
Rose was terminated during the course of a meeting con-
ducted in the late afternoon on November 3 in Loeper's
office. In attendance, in addition to Rose and Loeper, was
Jeffers. The meeting lasted approximately 30 minutes.
Loeper commenced the meeting by discussing work pur-
portedly performed by Rose pursuant to some repair or-
ders which Loeper had in front of him on his desk. Loeper
6 The foregoing is based upon a composite of the credited testimony of
Richard Werst, Harold Rose, and William Loeper.
7 A composite of the testimony of Harold Rose. Gerald Jeffers, and
William Loeper establishes the foregoing. I credit the testimony of Rose and
Jeffers in finding that cars are road tested to get coffee.
began this discussion by referring to a repair order which
bore a date indicating the work had been performed during
Rose's vacation. Rose called this to Loeper's attention, and
Loeper terminated discussion of that repair order and
turned his attention to another order. From that point in
the meeting, the discussion related to repairs apparently
performed by Rose on automobiles owned by Alice Carl-
son, T. Cannon, Gilliland Land & Oil Company, Frank
Gomes, and Mrs. William Loeper. Each of these repairs
was discussed in some detail. In connection with this dis-
cussion Ed Jones, a service writer, was called into the of-
fice, and Loeper inquired if Rose was having comebacks.
Jones replied, "a few." Jones made specific reference to a
truck that had been in the shop that morning with an elec-
trical problem which Rose repaired. Loeper asked Jones if
he recalled any other problems and Jones was not respon-
sive. He left the meeting and the discussion continued.
Loeper asked Rose whether, in view of the number of
comebacks which he was experiencing and the state of
Rose's health, Rose thought he was capable of continuing
to work. Rose responded that he wished to continue to
work and was happy in his employment and was doing
good work. Loeper pressed the matter and asked Rose why
he could not do his work correctly. In this regard Loeper
asked Rose if the state of his health was the reason that
Rose was continuing his desire to go home from work ear-
ly. Loeper made reference to Rose's asserted insubordina-
tion and failure to conform to scheduled work hours. s Al-
though asked several times whether he desired to quit his
employment, Rose communicated to Loeper that he de-
sired to stay on. Loeper closed the meeting by stating it was
necessary for him to satisfy his customers and retain his
customer following and for this reason he was terminating
Rose. Rose did not respond and the meeting ended. Rose
left the dealership.
The following day, Rose returned to the dealership to
pick up his tools and final check. He spoke with Jeffers and
requested he be given a written explanation for his termina-
tion. Jeffers responded that he could see nothing wrong
with that request and would endeavor to obtain this for
him. Jeffers left and went to Loeper's office. When he re-
turned, he informed Rose that Loeper would not supply a
written explanation. Thereupon, Rose asked Jeffers if he
would provide a written explanation for his termination.
Jeffers declined, saying that he was complying with Loe-
per's instructions. During his discussion with Jeffers on
that occasion, Rose asked Jeffers why, if there had been so
many comebacks attributable to him, Jeffers had not men-
tioned it before. Jeffers did not respond.
Loeper denied having convened the November 3 meeting
with predetermination to terminate Rose. He testified, in
substance, that he entered the meeting with the predisposi-
tion to effectuate Rose's termination but desired, in speak-
ing with him, to elicit from Rose some explanation con-
cerning the nature of his attitude, work performance, and
conformance to scheduled work hours. Loeper testified
that had Rose come forward with satisfactory explanations,
s William Loeper testified that he touched on the subject of Rose's "in-
subordination and hours" only "very lightly."
7
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would have considered retaining Rose in his employ.
Loeper testified that during the course of the November 3
meeting he spoke with Rose concerning the quantity of
comebacks; complaints from various customers concerning
work performed by Rose; Rose's insubordination; and his
absence during working hours. Loeper denied that Rose's
involvement in any activity pertaining to the Union played
any part in his decision to terminate Rose.
b. The alleged faulty work
The Alice Carlson automobile was repaired by Rose on
October 20, pursuant to a repair order written by Jeffers
specifying a customer complaint regarding a noisy smog
system. Rose diagnosed the problem and replaced a valve.
He reported to Jeffers that he had done all he could do to
remedy the problem. The automobile was parked on the
customer-ready lot, and Loeper brought the car back to the
shop, instructing Jeffers to do further work on the automo-
bile because the noise problem had not been alleviated.
Rose spoke with Jeffers concerning the matter and in-
formed Jeffers he had been told by Dick Phillips, a factory
representative who heard the engine after the initial repair
had been accomplished by Rose, that the noise was abso-
lutely normal. Nevertheless, another valve was ordered and
approximately 2 weeks later the valve was installed. Rose
was of the opinion the noise level had not been reduced but
Jeffers was of a contrary opinion. The customer was satis-
fied with the work accomplished.
The repair to the 1971 Buick automobile belonging to
Frank Gomes was undertaken by Rose on August 23.
Gomes was a personal friend of Jeffers, and Jeffers brought
the automobile into the shop for a tuneup. Upon undertak-
ing the repair, Rose observed that the carburetor was in
very bad condition and was leaking gas. Rose informed
Jeffers of this and pointed out that he could not make the
automobile run well enough to test it. Rose also stated that
he did not feel capable of performing the overhaul work on
the carburetor and that the carburetor should be sent out
to a General Motors dealer. Jeffers left the Gomes automo-
bile in the stall for a few minutes and then returned and
instructed Rose to pull the carburetor and send it to a
General Motors dealer whom Jeffers named. When the
carburetor was returned to the shop, Rose installed it and
put in plugs, points, and a condenser. Thereafter, the auto-
mobile ran better. However, it still would not idle properly
and after consulting with Jeffers it was decided that an
intake gasket should be installed. This was done by a line
mechanic. After the automobile was returned to Rose, the
problem remained, and the car was thereafter scoped and
the dynamic compression test revealed a burnt valve in a
cylinder. Throughout this procedure, Gomes, the customer,
had been kept informed of the process and when he was
told about the need to replace a valve, he became angry
and withdrew the automobile from the shop. An allowance
toward repair cost was made in favor of the customer, and
Jeffers consulted with Rose concerning the matter. Jeffers
told Rose that, in his opinion, Rose should have discovered
the deficient valve earlier. Rose stated that he was not able
to scope the automobile at an earlier stage because of the
rough condition of the engine. Rose conceded, however,
that he had "goofed."
The adjustment performed on the new 1977 LTD, be-
longing to Mrs. William Loeper, was performed in mid-
October. Mr. Loeper brought the car into the shop after it
had been driven approximately 400 miles. The engine was
missing at steady speeds because the cylinder was not firing
properly. Rose scoped the automobile and performed a
minor tuneup. Jeffers tested the LTD after Rose had tuned
the engine and when he tapped the accelerator it did not
come off a fast idle. Two days later Loeper discovered that
on initial startup the motor would race at excessive speed
and would not come off a fast idle until driven 4 or 5 miles.
Loeper reported this to Rose and asked Rose if it was not
possible for Rose to do his work properly. Rose answered
that he could and would correct the matter if Loeper would
show him what was wrong. Loeper became irritated and
demonstrated to Rose the difference between the idle on
initial startup in his Thunderbird and the idle under identi-
cal conditions in the case of the LTD. Loeper instructed
Rose to achieve the same result with the LTD. Rose ob-
tained the service manual and circled certain material and
took it to Jeffers. Rose told Jeffers that the carburetor on
Mrs. Loeper's car was not the same as that on the Thunder-
bird and that it was mechanically impossible for the carbu-
retor on the LTD to be brought off a fast idle without the
driver touching the throttle. Jeffers told Rose that he would
show Loeper the service manual entry which Rose had
circled. The manual instruction was to the effect that a tap
of the driver's foot upon the accelerator would bring the
automobile off a fast idle. However, as instructed, Rose
worked on the car and fixed it to the satisfaction of Loeper.
A Pinto automobile belonging to T. Cannon was brought
into the shop on October 22 for an engine tuneup and other
repairs. Rose tuned the engine and replaced the fuel filter
and then road-tested the car. After doing so, he returned
the car to the agency and parked it on the lot. It was
running satisfactorily when he parked it. Thereafter, the
automobile was taken to the lube rack by an employee
other than Rose and the lube man performed a lubrication
and oil change on the car and changed the air cleaner.
Later in the day, the customer came for the automobile and
it was parked near the office on a lube rack. The car would
not start when an effort was made to back it from the lube
rack stall. Jeffers checked the automobile and found that
the vacuum line was detached and the air cleaner was
loose. He quickly remedied the matter. In normal course of
events the lube man would have changed the air filter and
would have had occasion to remove the vacuum hoses.
There is no established sequence with respect to whether an
engine tuneup is performed prior to a lubrication and oil
change or whether the reverse order is followed. When
confronted with this incident by Jeffers and Loeper, Rose
informed them that the lube man had left the vacuum
hoses and air filter loose because he had performed the
engine tuneup prior to the lubrication. Jeffers did not know
which sequence was followed. He had spoken to the lube
man prior to speaking with Rose, and the lube man had
denied responsibility. Jeffers testified that the automobile
8
BILL LOEPER FORD
had been driven to the location at which it was situated
when the customer came to obtain the automobile. 9
The Gilliland Land & Oil Co. repair involved a 1971
Ford which was brought into the shop for an engine over-
haul. The work was performed by a general line mechanic.
Rose was not designated to check the performance of the
engine after the overhaul for which the customer was billed
$1,392.23. The automobile was returned on October 22
with a customer complaint that it was not running right.
The entry made by the service writer on the service repair
order was to the effect that the engine had no power and
fluttered when warm and would almost quit running. The
work was assigned to Rose to complete. Rose performed
the repairs and he and Jeffers road-tested the car. Rose was
of the opinion that the engine was running correctly, but
Jeffers instructed Rose to check the car further. He did so
and found that the smog hoses had not been replaced cor-
rectly, and Rose and Jeffers again tested the car. In their
opinion the engine ran well, and the automobile was re-
turned to the customer. The expense of the repair was
charged to "shop policy" with the notation that there had
been a recent engine installation.
The automobile was returned to the shop 2 days later
with a complaint that the automobile was still not perform-
ing properly. The engine would hesitate and acceleration
was not adequate. Rose checked the car and found a
kinked fuel line at the gas tank. The automobile appears to
have been towed into the garage. Rose performed the re-
pairs, and a charge was made to the customer for $7 in
labor and $28 for the towing service. Jeffers was of the
opinion that the automobile was running properly after
Rose completed his repairs.
Nearly 5 weeks later, on October 29, the automobile was
again returned to the shop. The automobile had been driv-
en over 1,000 miles but in the interim the customer had
lodged a complaint to the effect that the automobile still
performed as unsatisfactorily as before the earlier repairs.
When business use permitted the customer to return the
automobile to the shop, Rose and Jeffers road-tested the
car and, in Rose's opinion, the automobile ran properly.
However, Jeffers instructed Rose to repair the automobile
to the customer's satisfaction, and Rose suggested that the
carburetor be overhauled. Jeffers instructed Rose to do so
if that was necessary in order to satisfy the customer. Rose
performed the overhaul work. Jeffers testified that Rose
9 I credit the testimony of Harold Rose to the effect that he tuned the
engine and replaced the fuel filter prior to the time the lube man gained
possession of the automobile. I also credit Rose to the effect he road-tested
the car and placed the automobile in the parking lot at the facility, thereby
completing his duties with respect to the scheduled repairs.
'O The findings with respect to the nature and extent of repairs per-
formed by Harold Rose on the automobiles is based upon a careful consid-
eration of the testimony of Harold Rose, Gerald Jeffers, William Loeper,
and documentary evidence of record. As I observed him testify at the hear-
ing, I am convinced that William Loeper had no clear recollection of the
myriad details pertaining to the repairs performed on the various automo-
biles, save that belonging to his wife, Mrs. William Loeper. Accordingly. I
place primary reliance upon the testimony of Harold Rose and Gerald
Jeffers. To the extent that the testimony of Rose. Jeffers, and/or Loeper is at
variance with the findings of fact made with respect to the repairs, their
testimony is rejected.
The above-described instances of assertedly poor work by Rose were
augmented, contends Respondent. by faulty performance on the part of
Rose in making repairs to the automobiles of customers Calizari, Bernard,
should have discovered the carburetor difficulty during the
course of the earlier repairs. However, Rose credibly testi-
fied that in performing the carburetor overhaul he discov-
ered that the power valve in the bottom of the carburetor
was leaking. Rose credibly testified without contradiction
that the nature of a power valve is such as to have rendered
earlier detection impossible.
In the meantime, on October 11, Gilliland Land & Oil
Co. dispatched a check in the amount of $1,000 as partial
payment against a billing of $1,427.23. On the check stub
the notation was entered by the customer: "Balance will be
paid when car is conditioned [so] that it runs satisfactorily
and proper credits made." Respondent's interoffice nota-
tion made on the face of the check stub indicates that the
repair orders involved were the September 24 repair order
wherein Rose repaired a kinked fuel line at the gas tank for
which a charge of $7 was levied; an August 30 repair order
in the amount of $1,427.23 involving work performed by a
line mechanic; and the work order in close time proximity
to the August 30 order involving work performed by shop
employees other than Rose totaling $121.75. In substance,
Loeper testified that it was not the dollar amount of the
repair work performed by Rose on the Gilliland Land &
Oil Co. car which caused him to assess blame against Rose.
Rather, it was Rose's failure to properly perform this as-
signed task of determining the cause of the engine and
carburetor malfunction, and its resultant negative impact
upon customer satisfaction and relationships which ren-
dered this matter significant. On the other hand, Jeffers
conceded that Pete Castleberry, a line mechanic, per-
formed transmission work on the automobile on two or
three occasions and that the transmission difficulty was
part of the overall problem encountered with the particular
car. Jeffers spoke to Castleberry in a critical manner about
Castleberry's work on the automobile. l°
Conclusions
I find that the evidence preponderates in favor of a find-
ing that Respondent violated Section 8(aXl) and (3) of the
Act by terminating the employment of Harold Rose. I fur-
ther find that the reasons advanced by Respondent in ex-
planation of Rose's termination are pretextual in nature
and marshaled for the purpose of cloaking his discrimina-
tory termination.
and Stanley Brown Company, all of which transpired during the last 10
weeks of Rose's employment. In contrast, contends Respondent, during the
first 7-1/2 months of the year, Rose did faulty work on automobiles belong-
ing to only two customers, Ethyl Lee and Paul Brown. I place no reliance
upon the information coming into Respondent's possssion with respect to
the Calizari LTD and the Stanley Brown Company Elite, for it is clear that
the information pertaining to the alleged deficient work on the part of Rose
on these two automobiles did not come to the attention of Respondent in a
manner causing either Loeper or Jeffers to ascribe to these repairs a negative
connotation serving as a factor warranting Rose's termination. The work of
Rose on the Bernard automobile was, I find, reasonably within the defini-
tion of a comeback, albeit minor in nature. Moreover, it is clear that this
particular comeback was not a matter of discussion during the course of the
November 3 meeting between Loeper and Rose and was not a material
consideration in Loeper's evaluation of Rose's work. Into this category falls
also the alleged faulty workmanship on the part of Rose with respect to a
Falcon automobile belonging to Jack Lyons, who at some point in midyear
voiced a complaint to Loeper about the idle level set on his car by Rose who
performed tuneup work on it.
9
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Initially, the General Counsel established that at the time
of his discharge on November 3, Rose was a long term
employee whose work skills had been acceptable to Re-
spondent. His eccentric work schedule and attitudes had
been tolerated by Respondent through the years of his
generally competent service as a mechanic, but largely suc-
cessful efforts had been undertaken to bring him into com-
pliance in these latter respects. In this connection, the evi-
dence supports the finding, which I make, that as early as
March, Loeper had become annoyed by Rose's apparent
indifference to established standards of shop discipline and
respect for supervision and management. Nevertheless,
throughout the spring and into the summer, Loeper counte-
nanced Rose's continued circumvention of established
work schedules and found insufficient basis for disciplining
Rose or effectuating his termination in the face of a further
incident in May of manifest insubordination to a manager
of the operation. The conclusion seems warranted that
Loeper did this out of a sense of forbearance to a long term
and skilled employee and not out of reluctance to termi-
nate Rose during a period when the organizing campaign
and the postelection ambiance still prevailed. It is to be
remembered in this connection that there was nothing in
Rose's support of the Union prior to mid-August that dif-
ferentiated him from other employees. Be that as it may,
Loeper did nothing of an overt nature pertaining to Rose's
continued job tenure and, as matters progressed, the Au-
gust 19 union meeting was held at which Rose vocally
supported the notion of a strike against the Company as a
tactical weapon to enforce the Union's bargaining de-
mands. That Rose's participation in the August 19 meeting
came to the attention of Loeper is conclusively demon-
strated by the record evidence, for Loeper made a point of
speaking to Rose concerning the matter the fobllowing day.
It may well be, as Loeper, in effect, testified, that he spoke
to Rose in a jocular vein, for the rumors to which he had
been privy concerning Rose's participation in the August
19 meeting were laced with humor of a sort which would
tend to deprive Rose's participation in the meeting of any
portentous quality. However, in point of fact, the evidence,
carefully analyzed, suggests that the nature and the extent
of Rose's participation in the meeting indelibly and ad-
versely influenced Loeper's subsequent attitude toward
Rose. To be certain, following the August 19 meeting, Loe-
per did not act immediately or with vehemence, but by
mid-September he disclosed a willingness to discipl;ne
Rose in a disparate manner, when he admonished Rose for
road testing a car to get coffee, while exempting Rose's
companion, Fete Castleberry, and while closing his eyes to
the fact that the practice was not an uncommon one. More-
over, this admonition came at a time when Rose had dem-
onstrated a willingness to comply with instructions to ob-
serve established shop hours and he had not repeated his
earlier acts of disrespect towards supervision. Thereafter, in
mid-October, coincidental to the pendency of a further
negotiating session between Loeper and the Union, Loeper
made a point of speaking again to Rose and applying the
"kingpin" appellation with its self-evident relation back to
the August 19 meeting and Rose's role therein. Thus, there
is basis in the record for concluding, as I do, that, unlike
other employees of Respondent who supported the Union
and desired to achieve a collective-bargaining agreement
with Respondent on terms advanced by the Union, Rose,
alone among the employees, had, to Loeper's knowledge,
openly advocated resort to strike tactics to enforce his ob-
jective. The record evidence demonstrates that at the time
of Rose's termination, Loeper was adamantly espousing
the futility of the bargaining process and, in fact, boasted
that he had never had a contract with the Union. In this
context, the sum of the evidence with respect to Loeper's
personal reactions to the reports of Rose's participation in
the August 19 meeting compels the inference and resultant
finding that, although he may have found the reports of
Rose's conduct at the meeting humorous, Loeper nonethe-
less discerned in Rose's espousals of strike action a poten-
tial threat which rendered Rose expendable as an employ-
ee. It is on the basis of these foundational findings that the
evidence pertaining to the retention and promotion of Da-
vidson, an employee representative of the collective-bar-
gaining negotiations, is diluted as a defense to the action
taken against Rose. In all the circumstances, including the
involvement of Rose in a form of union-related conduct
hostile to Loeper's declared interests, Loeper's knowledge
of Rose's involvement, a reasonably based indication that
these considerations initiated the process of Loeper's final
antagonism toward Rose and Loeper's avowed determina-
tion not to settle the contract negotiations with the Union
on other than his own terms, the General Counsel must be
found to have established aprimafacie case supporting the
finding of an 8(a)(3) violation.
But the record does not rest here. A careful evaluation of
the record evidence pertaining to the dialogue and events
which formed the substance of the November 3 meeting
discloses, in final analysis, a frenetic search on Loeper's
part to justify his decision to terminate Rose, a decision
which I find he had reached prior to actually convening the
meeting. Thus, at the outset of the meeting, Loeper mistak-
enly assessed blame against Rose for work performed in
the shop during a period of time when Rose was on vaca-
tion. Loeper then proceeded to confront Rose with five sets
of repair orders which Loeper averred disclosed faulty
workmanship and poor employee attitude on Rose's part.
Loeper placed reliance on these orders, even though, as the
record demonstrates, he had no thorough knowledge of the
details pertaining to most of them, suggesting an unseemly
urgency inconsistent with honest inquiry. Such explana-
tions as Rose proffered met with varying degrees of indif-
ference or hostility from Loeper. Efforts on Loeper's part
to enlist support from Ted Jones, a shop service writer, in
support of the notion that Rose was guilty of comebacks
and widespread inefficiency met with failure and Jones was
summarily excused from the meeting. Rose was terminated
after a discussion neither objective nor thorough in charac-
ter and entirely inconsistent with Loeper's professed desire
for amelioration or honest evaluation. In final analysis,
Loeper predicated his decision to terminate Rose on assert-
ed deficiency in Rose's work, and his alleged insubordina-
10
BILL LOEPER FORD
tion and his nonadherence to scheduled work hours were
given only incidental gloss and no substantial weight."
The absence of bona fide justification flowing from the
character of Rose's work is found in the fact that the 30-
minute meeting disclosed only two sets of repair orders -
those relating to the Gomes and Loeper automobiles -
which could reasonably be characterized as representing
faulty work on the part of Rose. The other three sets of
orders - those pertaining to the Carlson, Cannon, and
Gilliland automobiles - under any reasonable assessment,
disclosed workmanship on the part of Rose consistent with
competent craftmanship. Given the quantity of work per-
formed by Rose and the imperfect nature of a craft in
which 12 to 24 "comebacks" per year would be "normal," a
fair analysis fails to sustain Respondent's assertion either
of a poor work record by Rose or of a deteriorated work
performance on the part of Rose during the period immedi-
ately preceding his discharge.
Indeed, it must be concluded from the entire record that
Respondent recognized the paucity of support for Loeper's
decision, for, in defense, Respondent gave distorted inter-
pretation to the Gilliland repairs, assessing unwarranted
responsibility upon Rose for the asserted loss of Gilliland
patronage and good will. Moreover, and in close relation-
ship, in defending the matter before me, Respondent
placed reliance on other repair orders, none of which were
discussed with Rose during the November 3 meeting, and
some of which came to Respondent's attention only after
Rose was discharged. This latter evidence, like the evidence
of record revealing a tendency on the part of Loeper to
adjust and vary at various postdischarge stages the empha-
sis given the numerous component parts of the Company's
evolving defense, compels the conclusion that the reasons
advanced by Respondent in explanation for Rose's dis-
charge are false. Being thus convinced, the inference is
warranted that these false and pretextual explanations are
advanced to cloak an unlawful motive. See Shattuck Denn
Mining Corporation (Iron King Branch) v. N.LR.B., 362
F.2d 466, 470 (C.A. 9, 1966). 1 invoke this inference and
reach the conclusion that Respondent did act unlawfully in
terminating Rose. Respondent's reliance upon the legal
proposition to the effect that it was not how Rose actually
performed his work but how Loeper reasonably perceived
the quality of his performance is misplaced, for the record
forecloses the existence of good-faith perception on the
part of Loeper with respect to Rose, while disclosing at the
same time the existence of unlawful motive which removes
Rose's termination from the area of legitimate manage-
ment prerogative. Cf. Bayliner Marine Corporation, 215
NLRB 12 (1974).
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
" That Loeper would be matenrially influenced by instances of insubordi-
nation occurring months earlier is most unlikely. The evidence reveals that
at the time of his discharge Rose was heeding instructions pertaining to
work hours.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(aX)(1) and
(3) of the Act, I shall order that it cease and desist there-
from and take certain affirmative action designed to effec-
tuate the policies of the Act.
Having found that on November 3, Respondent discri-
minatorily terminated the employment of Harold Rose, I
shall recommend that Respondent offer Harold Rose im-
mediate and full reinstatement to his former position of
employment or, if that position is no longer available, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make Rose
whole for any loss of earnings he may have suffered by
reason of the discrimination against him. Backpay shall be
computed in the manner prescribed in F W. Woolworth
Company, 90 NLRB 289 (1950), together with interest in
accordance with the policy of the Board, as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Bill Loeper Ford is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. On November 3, Respondent discriminatorily termi-
nated the employment of Harold Rose in violation of Sec-
tion 8(a)(3) and (I) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 12
The Respondent, Bill Loeper Ford, Santa Maria, Califor-
nia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO, or
any other labor organization, by unlawfit!!y terminating
the employment of its employees, or by discriminating in
any like or related manner with respect to their hire or
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.
II
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenure of employment or any term or condition of employ-
ment in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing any employee in the exercise of the
right to engage in self-organization, to bargain collectively
through representatives of their own choosing, or to act
together for collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Make Harold Rose whole for any loss of wages which
he may have suffered by reason of the discrimination
against him, in accordance with the recommendations set
forth in the section of this Decision entitled, "The Reme-
dy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
13 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 Pursuant to a
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its Santa Maria, California, dealership, copies
of the attached notice marked "Appendix." 13 Copies of
said notice, on forms provided by the Regional Director for
Region 31, after being duly signed by Respondent's repre-
sentative, shall be posted by it 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. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 31, in writ-
ing, within 20 days of the date of this Order, what steps the
Respondent has taken to comply with herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
12