Board Ford, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1976

222 N.L.R.B. 922 (N.L.R.B. 1976)

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board Ford , Inc. and Michael Dimsho. Case
21-CA-13307
February 18, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On June 2, 1975, Administrative Law Judge Stan-
ley Gilbert issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions 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, and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
We agree with the Administrative Law Judge that
the Respondent violated Section 8(a)(1) of the Act by
unlawfully interrogating its employees with respect
to their union activities, threatening them with eco-
nomic reprisal should they become involved in union
activities, and offering them benefits in order to dis-
courage their support of the Union. Contrary to the
Administrative Law Judge, however, we are of the
opinion that the Respondent discriminatorily dis-
charged employees Michael Dimsho and Bruce Ben-
nett on January 9, 1975, in violation of Section
8(a)(3) of the Act.
Respondent sells and services new and used auto-
mobiles. Dimsho and Bennett were mechanics in the
service department which employs about 30 employ-
ees. In November 1974, Bennett contacted a business
agent for the Union and he and Dimsho, who were
friends at the shop, began soliciting the employees in
their department about joining the Union. Their
talks with the other employees took place "most of
the time" in a lounge area also used as a lunchroom,
where there is an intercom controlled from the office
of dispatcher Mitchell. Employees are not aware
whether the intercom is on or off unless Mitchell
speaks to them. The record shows that both Bennett
and Dimsho contacted employees in this room dur-
ing December. Bennett named 10 contacted by him
and then added "a couple of the lot boys." Dimsho
named eight. Mitchell was asked if he "listened in"
on any conversations. He denied this and the Admin-
I Certain inadvertences contained in the Decision of the Administrative
Law Judge have been corrected.
istrative Law Judge credited his denial. In the total
context, including Mitchell's management-oriented
status discussed below, we find it implausible to con-
clude, as the Administrative Law Judge did, that
Mitchell "overheard" nothing.
Respondent contended that it had no knowledge
of the activities of Dimsho and Bennett until January
10, the day after the two were discharged. The Ad-
ministrative Law Judge found that dispatcher Mit-
chell, who was employed in that capacity since Sep-
tember 1974, and assigns work to the mechanics and
keeps in touch with work progress, was not a supervi-
sor. He therefore declined to impute to Respondent
the "prounion attitude" which Dimsho expressed to
Mitchell immediately after the December 23 meeting
of the service department. Although we would assess
this record as showing that Mitchell responsibly as-
signed work in a manner requiring the exercise of
independent judgment within the meaning of Section
2(11) of the Act and frequently granted time off to
the employees in the afternoon, we need not reach
that issue because we conclude that Mitchell's work
responsibilities and method of pay align his interests
with management rather than with the mechanics.
Mitchell is paid a salary and commission, the com-
mission being a percentage of the net profit from the
service department as computed each' month. His
earnings are estimated by Respondent as 60 to 65
percent of those of Service Manager Hyde, and his
office is within 12 feet of Hyde's. Service writers are
also paid a commission, but this is based on the labor
and parts they write up, thus reflecting their selling
function. Mechanics are paid on a flat hourly basis,
one rate for customer work, and one for warranty
work. They do not share in net profits from the ser-
vice department. The following uncontradicted testi-
mony of Dimsho was credited by the Administrative
Law Judge: After the service meeting of December
23, he had a conversation with Mitchell in which he
expressed his opinion in opposition to the new pay
scale announced by General Manager Wiese, telling
Mitchell that it would be one reason to "our advan-
tage to have a union"; and that Mitchell replied that
it sounded like a union speech, in answer to which
Dimsho stated: "If that is what it is going to take to
protect our rights, then that is what we are going to
need." Accordingly, we impute to Respondent the
knowledge Mitchell obtained from this conversa-
tion-that the employees were contemplating union
affiliation and that Dimsho was determined to pro-
ceed in that direction if needed to protect employee
rights.
Dimsho also testified that there had been a union
meeting arranged for the evening of Monday, De-
cember 23, and that he had informed some employ-
222 NLRB No. 152
BOARD FORD, INC. 923
ees about it a week before that, but the meeting was
canceled due to the fact that Respondent called a
service department meeting for that night, the first
such meeting held for at least 4 months 2 Dimsho
described this service meeting as beginning with the
remarks of Mr. Board, the principal owner of Board
Ford, who spoke of the economy as in somewhat of a
downturn, business was very poor, sales had dropped
off quite substantially, and things were going to get a
lot harder before they, would get better, Board went
on to speak of growing up during the Depression and
complimented the group by saying that he thought
"we had a real good team as far as the mechanics go
and how he liked the way his team worked and he
then stated that we were going to have to work as a
team, and that if anyone was unhappy or didn't like
the way his team was being run, he didn't need us on
his team." 3 The timing of this meeting during incipi-
ent union activity and the tenor of Board's remarks
strongly suggest that Respondent,-in fact, had knowl-
edge of the attempts at organization that occurred
before December _ 23, 1974. In the contest of
Respondent's knowledge we, contrary to the Admin-
istrative Law Judge, do attach significance to Board's
statement that he did not need anyone who did not
like the way his team was being run.
Our dissenting colleagues agree with the Adminis-
trative Law Judge that no significance attaches to
Mr. Board's remarks at the service meeting of De-
cember 23. For reasons fully explicated herein at
footnote 3, we do definitely disagree with the Admin-
istrative Law Judge's credibility findings in that re-
gard. We are not, however, disagreeing with his cred-
ibility finding that Dimsho told Mitchell of his
2The Administrative Law Judge was not "convinced" that there was a
union meeting set for December 23, relying in part on Bennett's testimony
that he had a dental appointment for that evening and ignoring testimony
that Bennett had estimated the driving time from the dentist's office and
hoped to attend part of the meeting. Also we note that he construed
Mitchell's testimony concerning Romo's having said that the union and
service meetings would conflict as a denial, whereas what Mitchell said was.
"I have no recollection of that occurring " When pressed further, he said: "I
am sure I would have remembered had it occurred."
3 Employee Robinson gave this version of what Board said "He said
they'd take [sicl is new deal coming up and it would be presented to us and
it was his company and he'd run his company as he'd see fit and whoever
didn't want to be with the company and their conditions, they could leave."
Testimony for the Respondent is to the same effect, except that General
Manager Wiese and Service Manager Hyde stated that Board cus tomarily
made statements to this effect at meetings . Wiese's version of what Board
"has" said was : "I am running the store . I am going to run it my way. I am
very proud of the people I have working for me. If there is anyone here
who is not proud to work here, they should leave." Wiese spoke of Board
having made such a statement at "perhaps 5 out of the 15 sales meetings I
have attended" and "about half of the managers ' meetings." Hyde was
asked if Board had made similar comments at any other service department
meetings-which this record' shows to have been infrequent-and replied:
"I would have to say just about all including the managers' meeting."
Wiese's testimony particularly sounds exaggerated and we note that during
the hearing, while Hyde was on the stand, he was admonished by the Ad-
nunistrative Law Judge not to'nod approval to the witness.
interest in unionism after that meeting, but only with
the Administrative Law Judge's disposition of that
credited testimony. He declined to impute knowledge
of the Respondent for the reason that Mitchell was
not a supervisor. As we have said, we have reserva-
tions as to the Administrative Law Judge's nonsuper-
visory conclusion, but that conclusion alone would
not settle the matter of Respondent's knowledge on
this record. In our view the Administrative Law
Judge's decision does not reflect the preponderance
of the relevant evidence on_this point. He made no
reference to record facts such as Mitchell's pay being
tied to -service department profit unlike the hourly
wages paid mechanics,, his office location being close
to that of Service Manager Hyde, and his intercom
connection with service mechanics-as Hyde' s testi-
mony concerning overhearing Dimsho conversing
with Mitchell reflect being part of a system which
included Hyde's office. We are not, as in General
Dynamics,4 faced with deciding whether Mitchell
should be excluded from a unit of mechanics as a
managerial employee who formulates, as well as ef-
fectuates, management policies, but only with de-
termining whether it may fairly be said in this unfair
labor practice case that the Respondent, through
Mitchell, had knowledge of union activity when it
discharged Dimsho and Bennett on January 9. We
infer such knowledge because on this record it is im-
plausible not to do so. See, for example, Wiese Plow
Welding Co., 123 NLRB 616, 618 (1959), where the
full Board overruled the Trail Examiner who found
direct knowledge of union activities necessary as to
one of the discriminatees, noting well-established
Board and court precedent that knowledge may be
inferred from the record as a whole.
As found by the, Administrative Law Judge, on
January 6, 1975,5 Bennett set up a meeting for the
employees with the union representative and Dimsho
began notifying employees that it was scheduled for
Monday, January 13, at a nearby restaurant. On the
morning of January,9, Hyde was approached by two
employees who asked if he knew about a meeting
which was to take place, and one of them asked
Hyde to find out what the meeting was about. Hyde
asked Robinson, an employee he referred to as an
oldtimer, what kind of meeting the mechanics were
4 General Dynamics Corporation, Convair Aerospace Division, San Diego
Operations, 213 NLRB 851 (1974)
5 On this record , we cannot agree with the finding of the Administrative
Law Judge that it appears that there was little union organizational activity
until January 6, 1975 . No union meeting for employees had as yet been
held, but the employee lounge had been the locus of contact during Decem-
ber for card signing and for oral notice concerning the union meeting origi-
nally scheduled for December 23 Concerning the difficulty with operation
of the intercom upon which our dissenting colleague comments, we note the
testimony of Mitchell that it was "out of order around Christmas . That only
lasted for, I think, one day." Mitchell testified that it was out of operation
for a longer period during 1975.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having on Monday, but Robinson replied that he did
not know. On January 10, Hyde again approached
Robinson and told him he heard that employees were
making jokes about "wait until Monday night," and
asked if Robinson knew whether the employees were
starting a union. Robinson replied that he knew
nothing about it. However, as Robinson testified, he
told Dishmo on the morning of January 9, that
"they" had asked about a meeting, going on to say:
"If you guys are starting up a union, I think you
better cool it because I think somebody is telling and
I think you better let it rest for a while."
On the afternoon of January 9, shortly before quit-
ting time, Bennett and Dimsho were discharged. Re-
spondent claims that each was discharged for cause.
Bennett spent most of his time as a mechanic
working on minor warranty repairs. At approximate-
ly 5 p.m. on January 9, Hyde told Bennett, "Well, I
got word today that it is slow and I have to cut back
and you are the least productive man so you are the
one that has to go." Bennett's termination notice
stated as the reason for his discharge that, " Business
does not warrant need of him at this time." In his
testimony Hyde explained that his reference to Ben-
nett being the least productive man did not imply
that Bennett's work performance was not productive,
but that business was slow. By the following month,
however, a new man was hired to perform Bennett's
new car warranty work, and another mechanic was
hired to do general repair work on new cars, a type of
work also sometimes performed by Bennett. Al-
though Hyde claimed that he had decided earlier to
terminate Bennett by January 15 if the volume of
work that Bennett performed did not increase sub-
stantially, he testified that he fired Bennett on Janu-
ary 9 because of a complaint from a customer on that
day concerning a repair job Bennett had previously
performed. Hyde, however, did not consult with any-
one or investigate this complaint prior to the dis-
charge and did not tell Bennett of any deficiency in
his work as a reason for his termination. When dis-
charged, Bennett had seniority over several of the
mechanics.
Dishmo was an experienced mechanic on auto
electrical work. He had been employed by Respon-
dent between July 1971 and March 1973, when he
was discharged for refusing to do work assigned to
him. He was rehired in May 1973 and discharged by
Hyde at approximately 4:30 p.m., on January 9,
1975, for allegedly refusing to do assigned work.
Gregory Mitchell, the dispatcher, had difficulty in
getting Dimsho to accept job assignments. Hyde tes-
tified that on January 3 Mitchell told him that either
Dimsho went or he would leave, but Mitchell' s testi-
mony is to the effect that he made some such state-
ment to Hyde about 3 weeks to a month prior to
January 9, the date of Dimsho's discharge. The rec-
ord further shows that Hyde told Dimsho at the time
of his discharge that unless he got rid of him, Mit-
chell, the dispatcher, would quit, saying, "I can't af-
ford to lose Mitchell. He is the key to this door."
During the evening of his discharge, Dimsho phoned
Mitchell at his home to discuss the matter. Mitchell
told him that there was no "personality conflict" be-
tween them and said that, after Hyde had come into
his office to tell him that he had fired Dimsho, Mit-
chell remarked that he "didn't want any part of it."
Mitchell also told Dimsho that it was not true that he
would quit if Dimsho were not fired.
Sometime before December, Hyde assigned two
special priority jobs to Dimsho: a Lincoln Continen-
tal, which involved repairing the entire engine com-
partment, and a Pinto, which had extensive fire dam-
age. Hyde testified that Dimsho always performed
the work assigned by him to Dimsho, but that he did
not tell Mitchell of the priority instructions he had
given Dimsho. Consequently, the problems between
Mitchell and Dimsho arose because of a gap in com-
munications, i.e., Mitchell asked Dimsho to do work
while he was also occupied on the special jobs as-
signed him by Hyde.
On these facts and the entire record, we are satis-
fied that Respondent had knowledge of the Union's
organizational campaign and of the active participa-
tion therein of Bennett and Dimsho.6 We are also
persuaded by the evidence recited above that neither
Bennett nor Dimsho was discharged for the reason
given in each case by Respondent, which we view as
a pretext to cover the real reason for the termination.
Considering Respondent's knowledge of the union
activity and its animus as demonstrated by the
8(a)(1) conduct found herein, we are convinced that
the real reason for the discharge of Bennett and Dim-
sho was their union activity and that, by their termi-
nations, Respondent violated Section 8(a)(3) and (1)
as alleged in the complaint.
To remedy these unfair labor practices, we shall
order the Respondent to offer immediate and full
reinstatment to Bennett and Dimsho to their former
positions (or, if no longer available, to substantially
equivalent positions), without prejudice to their se-
niority or other rights and privileges and make each
of them whole for any loss of earnings or other mon-
etary loss each may have suffered as a result of the
6 The Board and the courts have long held that proof of knowledge of
union activity may be established by circumstantial , as well as by direct,
knowledge. N.L RB v. Tru-Line Metal Products Company and Tru-Line
Screw Products, Inc., 324 F.2d 614 (C.A. 6, 1963), cert. denied 377 U.S 906
(1964); N.L.R.B. v. Long Island Airport Limousine Service Corp., 468 F.2d
292 (C.A. 2, 1972); N L &B. v Wal-Mart Stores, Inc, 488 F.2d 114 (C.A. 8,
1973).
BOARD FORD, INC.
discrimination against them, less interim earnings, if
any, plus interest at 6 percent per annum. Any back-
pay due is to be determined in accordance with the
formulas set forth in F. W. Woolworth Company, 98
NLRB 289 (1950), and Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
Because of the Respondent's unlawful discharge of
these two employees, we shall broaden the narrow
cease-and-desist 8(a)(1) order recommended by the
Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Board Ford, Inc., Whittier, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Automotive Em-
ployees, Laundry Drivers and Helpers Local Union
No. 88, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
-or in any other labor organization, by discriminatori-
ly discharging any of its employees, or in any other
manner discriminating against them with respect to
their hire or tenure of employment or any term or
condition of employment.
(b) Unlawfully interrogating employees with re-
spect to their union activities or activities of their
fellow employees.
(c) Unlawfully threatening employees with eco-
nomic reprisal should they become involved in union
activities.
(d) Offering benefits to employees in order to dis-
courage them from supporting the Union.
(e) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights protected by Section 7 of the Act, except to the
extent that such rights may be affected by an agree-
ment requiring membership in a labor organization
as a condition of employment, as authorized in Sec-
tion 8(a)(3) of the Act.
2. Take the following affirmative action, which the
Board finds will effectuate the policies of the Act:
(a) Offer Bruce Bennett and Michael Dimsho im-
mediate and -full reinstatement to their former jobs
or, if these jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges, and make them
whole for any loss of earnings they may have suf-
fered in consequence of their discriminatory dis-
charges, in the manner set forth in this Decision and
Order.
(b) Preserve and, upon request, make available to
925
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay and other sums due under the terms of this
Order.
(c) Post at its Whittier, California, facility copies
of the attached notice marked "Appendix." I Copies
of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed with respect to all alle-
gations not found to have constituted violations of
the Act.
MEMBER PENELLO, dissenting in part:
I disagree with my colleagues' reversal of the Ad-
ministrative Law Judge's dismissal of the cases of
Bennett and Dimsho.
Like the Administrative Law Judge, and contrary
to the main opinion, I do not find knowledge by Re-
spondent of the union activity of Bennett and Dim-
sho as of January 9, the day of their discharge. Thus,
Bennett 's and Dimsho's union activity is not shown
to have taken place under circumstances which
would warrant the inference that Respondent must
have learned of it. In this contention I think it signifi-
cant to note that Dimsho admitted at the hearing
that he made certain that no supervisors were present
when he talked to employees about the Union and
that Bennett testified that, following instructions re-
ceived from the Union, he never talked to an em-
ployee about the Union in front of management.
My colleagues stress the activity in the employees'
lounge especially because it was connected to the
dispatcher's office by intercom. If they are thereby
suggesting that conversations in the lounge about
union matters were heard over the intercom, and that
knowledge thereof may be charged to Respondent,
7 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
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this is the sheerest speculation. For there is no evi-
dence that the dispatcher knew when union conver-
sations were taking place in the lounge and turned on
the intercom to overhear them. Indeed, after the first
of the year, 1975, the intercom was out of commis-
sion for about a month and a half. Moreover, the
Administrative Law Judge has credited the testimony
by Mitchell, the dispatcher, that he did not overhear
conversations from the lounge. He even found, as
already indicated, that Mitchell was not a supervisor
under the Act. In the face of these -findings, reliance
upon the fact that union discussions took place in the
lounge which has an intercom connection with the
dispatcher's office is totally unwarranted.
My colleagues are reversing the Administrative
Law Judge in his acceptance of Mitchell's testimony
that he did not overhear lounge conversations about
union matters. However, it is the Board's established
policy not to overrule an Administrative Law Judge's
resolutions as to credibility except where the clear
preponderance of all the relevant evidence convinces
us that his or her resolutions are incorrect.' I disagree
with my colleagues that this is such a case. The Ad-
ministrative Law Judge based his credibility resolu-
tions -upon all the record evidence and, upon his ob-
servation of the witnesses. Even assuming, as the
majority asserts, that Mitchell had a "management-
oriented status" in that his "work responsibilities and
method of pay align his interests with management
rather than with the mechanics," that fact in no way
serves to establish by a clear preponderance of the
evidence that the Administrative Law Judge was in-
correct in this credibility resolution.
Nor is such evidence provided by Board's state-
ment to the employees at the December 23 meeting
to the effect that they had to work as a team and that
if an employee did not want to, work within the team
he had better leave. For, the Administrative Law
Judge accepted testimony that Board, on many occa-
sions, referred to the employees as a team and told
them that anyone who did not want to work on the
team had better leave. My colleagues also challenge
this credibility finding, but no more basis appears for
this challenge than for their refusal to adopt the cred-
ibility resolution by the Administrative Law Judge
with respect to Mitchell. Therefore, as the Adminis-
trative Law Judge concluded, "no significance is at-
tached to the fact that . . . [Board] made such a
statement at the service meeting on December 23."
Although finding that Mitchell overheard lounge
conversations, the main opinion does not expressly
impute any knowledge Mitchell may have acquired
8 Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 108 F.2d
362 (C.A. 3, 1951)
thereby to Respondent, which was perhaps its inten-
tion, but it does impute to Respondent the substance
of the Mitchell-Dimsho conversation foll owing the
December 23 meeting. I do not believe that the rec-
ord discloses a sufficient basis for attributing to Re-
spondent any knowledge of union activity possessed
by Mitchell.
It is found that Mitchell is not a supervisor. Also,
while my colleagues ascribe a "management-oriented
status" to Mitchell, they concede at the same time
that he is not a management representative of Re-
spondent.' Therefore, no basis exists whereby, by op-
eration of law, Mitchell's knowledge of union activity
can be imputed to Respondent. And my colleagues
apparently do not contend otherwise.
What they appear to be finding is that the record
in fact establishes that Mitchell, a rank-and-file em-
ployee, actually communicated to Respondent his
knowledge of union activity. Admittedly, the record
lacks direct evidence of this, but. my colleagues are
prepared to infer it upon the record as a whole, par-
ticularly in view of Mitchell's pay basis, his office
location, and the. intercom arrangement discussed
above. Like the Administrative Law Judge, I would
not find that the record supports such an inference.
At best, the record may provide a suspicion of Re-
spondent knowledge, but suspicion and surmise
hardly satisfy the General Counsel's burden of pro-
viding an unfair labor practice by probative evi-
dence.
As for Hyde's questioning of Robinson on January
9, the Administrative Law Judge has credited the tes-
timony of both Hyde and Robinson that they were
then unaware of the purpose of the employee meet-
ing scheduled for January 13. That is why he did not
find this interrogation to be a violation of the Act,
and this refusal to find an unfair labor practice re-
mains undisturbed herein. In view of this credibility
finding which is adopted by this Panel, we,obviously
cannot impute knowledge of union activity to, the
Respondent as of January 9 because, by January 10,
Hyde may have had reason to suspect a forthcoming
union meeting. And even assuming he had reason to
suspect this on January 9, there is no basis for infer-
ring that he also had reason to suspect that Bennett
and Dimsho were involved.
As observed by the Administrative Law Judge,
"Although . . . there is no probative evidence in the
9 "The Board has long defined managerial employees as those who for-
mulate and effectuate management policies by expressing and making oper-
ative the decisions of their employer , and those who have discretion in the
performance of their jobs independent of their employer's established policy
managerial status is not conferred upon rank-and-file workers, or upon
those who perform routinely, but rather it is reserved for those in executive-
type positions, those who are closely aligned with management as true rep-
resentatives of management." General Dynamics Corporation, Convair Aero-
space Division, San Diego Operations, 213 NLRB 851 (1974).
BOARD FORD, INC. 927
record from which it may be inferred that Respon-
dent knew or suspected Bennett or Dimsho of engag-
ing in union or concerted protected activity, or, for
that matter, even knew or suspected that such activi-
ty was being carried on at the time the two were
discharged, nevertheless, in deciding the issue of
whether they were discriminatorily discharged, there
remains the question of what weight, if any, may be
given to the timing of the discharges and the reasons
advanced by Respondent for taking such action
against them in light of the credited evidence of
Hyde's actions commencing on January 9,
-1975." 10
While the timing of the discharges, standing alone,
may cast some suspicion on Respondent's motives,
consideration of all the relevant evidence removes
any such suspicion and establishes instead that the
reasons given for the discharges were not the pretexts
found by my colleagues.
That business "did not warrant need of him" when
Bennett was discharged finds support in the evidence
that the sale of new cars had fallen off considerably
and that Bennett's take-home pay for December
1974 was the lowest he ever received. There is no
showing that Respondent followed the practice of re-
lying upon seniority for layoffs. Bennett had'received
reprimands from Hyde and Hyde's credited testimo-
ny is that he had made a decision to terminate Ben-
nett on January 15 if there was no substantial in-
crease in minor after-sale warranty repair work by
then, but that he effectuated the discharge on Janu-
ary 9 instead, after receiving a "strong" customer
complaint on that day about work which Bennett
had performed.
Almost since the beginning of his employment in
September 1974, Mitchell, the dispatcher, had diffi-
culty in getting Dimsho to accept assignments of
work, Dimsho couching his refusals in language
that varied from the sarcastic to the obscene. Finally,
Mitchell told Hyde, in effect, that either Dimsho
goes or I do. Hyde decided to discharge Dimsho
when Dimsho was finished with the last of the-two
special jobs that Hyde had assigned to him." The
second job was finished on January 9 and, on -that
day, Hyde notified Dimsho of his discharge. Hyde's
testimony credited by the Administrative Law Judge
is that he decided upon the termination because
"we'd taken enough abuse from him" and he ex-
plained "abuse" as meaning a "failure to do the
work, argumentative nature."
The facts are as simple as this despite my col-
leagues' efforts to introduce complicating factors. If
Bennett was not recalled when business improved,
that may be explained by Bennett's prior work rec-
ord and the limited mechanic' s skills utilized by him
in his work for Respondent. And if Mitchell' s testi-
mony does not support Hyde's that it was on January
3 that he gave Hyde the choice of retaining Dimsho
or him, the important fact is that Mitchell admitted
making such a statement to Hyde, even if not on
January 3. That remains a fact even if Mitchell later
told Dimsho that it was not true that he would quit if
Dimsho were not fired, and otherwise sought to
avoid blame for Dimsho's fate.
Based upon the above considerations, as more ful-
ly explicated by the Administrative Law Judge, I am
unwilling to find that the General Counsel has satis-
fied his burden of proving by a preponderance of the
evidence- that Bennett and Dimsho were discharged
in violation of the Act. -
10 Although not finding Hyde's interrogation of Robinson on January 9
to be unlawful , for the reason explained above, the Administrative Law
Judge did find unlawful interrogation by Hyde on January 10 and thereaf-
ter -
u As explained by the Adnumstrative Law Judge , Dmisho's assignment
to work on these two ears did not foreclose his acceptance of other work.
APPENDIX
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 the opportunity
to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act. We have - been ordered to post this
notice and comply with its provisions.
The National Labor Relations Act gives you, as an
employee, certain rights, including the right to en-
gage in self-organization and to form, join, help, or
be helped by unions. -
Accordingly, we assure you that:
WE WILL respect your above-stated rights un-
der the National Labor Relations Act.
WE WILL NOT dismiss any employee or in any
other manner discriminate against any employee
in regard to his or her hire, tenure, or terms or
conditions of employment, so as to discourage
membership in, affiliation with, sympathy for, or
lawful activity on behalf of Automotive Em-
ployees, Laundry Drivers and Helpers Local
Union No. 88, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organi-
zation.
WE WILL NOT unlawfully interrogate employ-
ees with respect to their activities or activities of
their fellow employees on behalf of said Union
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any other labor organization.
WE WILL NOT unlawfully threaten employees
with economic reprisal should they become in-
volved in activities on behalf of said Union, or
any other labor organization.
WE WILL NOT offer benefits to employees in
order to discourage them from supporting the
aforesaid Union, or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist any union, to bargain collec-
tively through representatives of their own
choosing, and to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from such
activities, except to the extent that such right
may be affected by an agreement requiring
union membership as a condition of employ-
ment, as authorized in Section 8(a)(3) of the Na-
tional Labor Relations Act, as amended.
WE WILL offer Bruce Bennett and Michael
Dimsho, whom we discharged because of their
union membership and activities, immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their senior-
ity and other rights and privileges; and WE WILL
also pay them backpay, plus interest, for any
pay they have lost because of our discriminatory
dismissal of them.
All of you are free to join or not to join Automo-
tive Employees, Laundry Drivers, and Helpers Local
Union No. 88, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other union, except where an agree-
ment requires union membership as a condition of
employment, as authorized by law.
BOARD FORD, INC.
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge : Based on a
charge filed by Michael Dimsho, an individual, on January
10, 1975, the complaint herein was issued on March 5,
1975. The complaint alleges that Board Ford, Inc., herein-
after referred to as Respondent or Company, violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act, as
amended. Respondent, by its answer, denies that it en-
gaged in conduct violative of the Act as alleged.'
1 The answer does not contain responses to certain of the allegations in
Pursuant to notice a hearing was held in Los Angeles,
California, on April 15 and 16, 1975. Appearances were
entered on behalf of General Counsel and the Respondent,
and briefs were timely filed on behalf of said parties.
Based upon the entire record 2 in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, is engaged in the
retail sale of automobiles, parts, and services with a facility
located in Whittier, California. Respondent, in the normal
course and conduct of its business operations, annually de-
rives gross revenues in excess of $500 ,000 and annually
purchases and receives goods and supplies valued in excess
of $50,000 from suppliers located outside the State of Cali-
fornia.
Respondent is, and has been at all times material herein,
an employer engaged in commerce and in a business af-
fecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Automotive Employees, Laundry Drivers and Helpers
Local Union No. 88, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, is, and has been at all times mate-
rial herein , a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
1. Whether or not Respondent discriminatorily dis-
charged Dimsho on or about January 9, 1975-
2. Whether or not Respondent discriminatorily dis-
charged Bruce Bennett on or about January 9, 1975.
3. Whether or not, on or about January 9, 13, and 14,
1975, Respondent through Ronald Hyde, service depart-
ment manager of Respondent and an admitted supervisor,
unlawfully interrogated employees.
4. Whether or not Respondent, through Stanley Bruns,
"credit manager" of Respondent, unlawfully interrogated
an employee "on or about January 9, 1975." It is noted
that with respect to this issue there is a question as to
whether or not the actions of Bruns can be imputed to
Respondent . It is also noted with respect to this issue that
the allegation in the complaint apparently relates to testi-
mony with respect to a conversation which a General
Counsel's witness testified occurred approximately a week
prior to January 9, 1975.
5. Whether or not on or about January 9, 1975, Respon-
the complaint which allegations are considered to have been admitted by
Respondent , as was conceded by Respondent 's counsel in the course of the
hearing.
2 Errors in the transcript have been noted and corrected
BOARD FORD, INC.
dent, through Hyde, promised increased economic and
other benefits to employees in order to discourage them
from joining or assisting the Union.
6. Whether or not on or about January 13, 1975, Re-
spondent, through Hyde, did unlawfully "admonish" em-
ployees to abandon their support of the Union.
The Organizational Activity and Respondent's
Knowledge Thereof
Bennett testified that "right around the beginning weeks
in November," he contacted Phil Walker, a business agent
for the Union; that he discussed with him the possibility of
union representation for employees of Respondent; that
they discussed the advantages of their having union repre-
sentation and that Walker told him that he would have to
set up a meeting with them so that he could talk it over
with them and get authorization cards signed. He and
Dimsho testified that the two of them talked over the mat-
ter of union representation around "Thanksgiving time"
and they both further testified that they talked to many of
the employees about union representation usually in the
lounge area used by the employees.
Bennett further testified that a meeting with the union
representative was supposed to be held the evening of De-
cember 23, and that he and Dimsho talked to most of the
mechanics in the lounge and informed them of the date
and place of the meeting. It appears that some days prior
to December 23 a notice was posted by Respondent calling
for a meeting of service employees on the evening of De-
cember 23. Dimsho testified that the notice of the service
meeting was posted on Wednesday or Thursday of the pre-
ceding week (4 or 5 days prior to Monday, December 23).
Other than Dimsho and Bennett the only witness who testi-
fied that he had knowledge of the December 23 union
meeting was Frank Romo, who at the time had the job of
driving a courtesy bus for Respondent. Romo testified that
he first heard about the union organizational campaign
"before Christmas" from Bennett and he also had conver-
sations with Dimsho about it. Romo did not testify when
he heard about the union meeting that was set for Decem-
ber 23, but did testify that, when he saw the notice of the
service meeting posted on the dispatcher's window, he said
to the dispatcher, Gregory Mitchell, that the service meet-
ing had to be changed "because there is a union meeting
tonight." Mitchell denied Romo's testimony that he made
such a comment to him_ Mitchell was a more convincing
witness than R'omo and his denial is credited.
Furthermore, I am not convinced that there was a union
meeting set for December 23, since, other than the above-
mentioned testimony, there was no corroboration, that the
employees had been notified of such a meeting. Ernest
Robinson, a witness called by General Counsel, testified
that he heard about the union organizational attempts ap-
proximately 3 or 4 weeks before Christmas and that later
Dimsho talked to him about it. However, Robinson further
testified he knew nothing about the December 23 union
meeting. Robert Smith, a witness called by the General
Counsel, testified that he did not hear about the Union
until 2 or 3 days before a union meeting scheduled for
January 13, 1975. Glen Miller, another witness called by
929
the General Counsel, who worked in the stall next to Dim-
sho, testified that he heard about the Union in mid-Decem-
ber, but did not know about the December 23 union meet-
ing. Bennett testified that he was unable to attend the
service meeting on the evening of December 23 because he
had a dentist appointment for that evening. Obviously he
would not have been able to attend the union meeting if it
had been scheduled that evening. Thus, I am satisfied from
my observation of the witnesses and the lack of corrobora-
tion that there was no union meeting scheduled on Decem-
ber 23. This conclusion is buttressed by the testimony of
Donald Wiese, Respondent's business manager.
Wiese testified, and his testimony which was not denied
is credited, that at a hearing involving Dimsho before the
California Unemployment Insurance Appeals Board on
April 2, 1975, Dimsho was sworn in as a witness, and testi-
fied as follows:
A. At that time Mr. Dimsho had testified that as a
result of the December 23, 1974, service meeting, he
had been upset with management in general and me in
particular relating changes in pay plans and he felt my
will rather than his was going to prevail and as a result
of-this, he subsequently contacted the Machinist Union
and the Teamsters Union in order to lend more weight
to his point of view and to make a big wave at Board
Ford. [Emphasis supplied.]
It appears that at the service meeting on December 23,
which apparently was the major reason for calling the
meeting at that time, Wiese announced that beginning in
January the service department would change to a new pay
scale for mechanics which consisted of a change in hourly
customer and warranty rates. Dimsho testified that he was
of the opinion that the new system would not be beneficial
to the mechanics and was opposed to it. In view of the
circumstances outlined above, it is inferred that, while
there may have been some talk about getting union repre-
sentation at least in mid-December, the testimony of Ben-
nett and Dimsho as to their conversations with employees
and their organizational attempts prior to January 6, 1975,
was greatly exaggerated.
Although the General Counsel does not contend that the
service meeting was deliberately set for December 23 to
prevent the union meeting, in his brief General Counsel
seems to imply that, particularly in view of his reference to
the statement made at the meeting by the president of Re-
spondent, "Mr. Board," to the effect that "we have to work
together as a team" and if an employee doesn't want to
work within the team he'd better find another job .3 It ap-
pears from the record that Board, on many occasions in-
cluding management meetings, referred to the employees
as a team and stated that anyone who does not want to
work on the team had better leave. Therefore, no signifi-
cance is attached to the fact that he made such a statement
at the service meeting on December 23. Furthermore, there
is no evidence that Respondent had any knowledge of any
union activity at that time, and it is evident that the service
3 There is no allegation in the complaint relating to any incident prior to
January 9, 1975, and, in particular, no allegation with respect to the service
meeting.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting was called for an important company purpose.
General Counsel in his brief refers to the fact that there
is an intercom system between the employees' lounge and
the dispatcher's office which permits intercommunication
between the two places and it appears that General Coun-
sel would have me infer that Mitchell overheard prounion
discussions. This is pure speculation and furnishes no basis
for drawing an inference that Mitchell did overhear such
conversations. Furthermore, Mitchell's testimony that he
did not overhear conversations from the lounge is credited.
- The General Counsel contends that Mitchell is- a super-
visor within the meaning of the Act. It appears from his
credited testimony that his assignments of work to me-
chanics are based upon set guidelines on a routine basis, so
that it cannot be said that he "responsibly directs" employ-
ees. Further, General Counsel argues that he exercises one
of the indicia of a supervisor in that he excuses employees
from work. It appears that he was never specifically grant-
ed such authority and that, at the most, mechanics toward
the end of the day would clear with him whether there was
any more available work for which they would be needed,
and if there was not he would indicate that it was not
necessary for them to stay. The record clearly indicates
that, if employees wanted to be excused for any period of
time during when they might be needed, they had to obtain
permission from the service manager. Moreover, it is clear
from the facts that some of the mechanics, and particularly
Dimsho, talked back to Mitchell and that Mitchell had to
enlist the aid of the service manager, Ronald Hyde, to get
Dimsho to accept assignments, that the mechanics did not
regard Mitchell as a - supervisor. Consequently, it is con-
cluded that Mitchell is not a supervisor within the meaning
of the Act and could not have reasonably been regarded to
be a supervisor by the employees.
In view of the above conclusion, it appears appropriate
to comment briefly on certain testimony of Dimsho. Dim-
sho testified that, after the service meeting of December 23,
he had a conversation with Mitchell in which he expressed
his opinion in opposition to the new pay scale announced
by Wiese; that he told Mitchell that it would be one reason
to "our advantage to have a union"; and that Mitchell
replied that it sounded like a union speech, in answer to
which Dimsho then stated, "If that is what-is going to take
to protect our rights, then that is what we are going to
need." It does not appear that Mitchell was questioned
with respect to this testimony and therefore it is uncontra-
dicted and credited. However, since Mitchell has been
found not to be a supervisor, knowledge of this indication
of Dimsho's prounion attitude cannot be imputed to Re-
spondent.
It appears that there was little union organizational ac-
tivity until January 6, 1975. According to Bennett's testi-
mony, which is credited, he set up a union meeting with a
union representative for January 13 and, starting on Janu-
ary 6, he and Dimsho began notifying employees of the
arranged meeting. There is nothing in the record relating to
whether Respondent had any knowledge of the arrange-
ments for a meeting prior to January 9 or of the activities
of Dimsho and Bennett prior to their discharge except for
discredited testimony of Romo. Romo testified that he was
credit manager, about a week prior to January 9. Romo's
testimony as to their conversation is as follows:
THE WITNESS: I was in the-I was standing next to the
service window, you know, the cashier's window and
he walked up to me, and in a low voice said, "Ques-
tion" and I says, "What," you know, I said "Subject."
He said "Union" and then I said, "I don't know noth-
ing about it." He says, "What about Mike and
Bruce?" I says, "I don't know nothing" and then we
left it at that or I asked, you know, why; and that was
it or something like that 4
Bruns denied having such a conversation with him and his
denial is credited, since Romo is not considered a convinc-
ing witness. There is no question that Bruns was not a
supervisor within the meaning of the Act. While it might be
argued that in the circumstances, that is, of his having one
of the offices in the office complex and his attendance at
management meetings, that Bruns could reasonably have
been considered by employees as part of management, it
appears nevertheless that Bruns' duties and authority were
merely that of Bruns' a clerk who made collections, passed
upon credit within strict guidelines, and assisted the cash-
iers during rush periods. In any event, since Romo's testi-
mony is not credited, there is no significance to the issue of
Bruns' status. Romo's testimony, which has not been cred-
ited, is the only element in the record upon which General
Counsel could have relied as direct evidence of
Respondent's knowledge or suspicion of Bennett's and
Dimsho's organizational activities.
It does not appear that there was any action on the part
of management which would indicate that it was aware of
some protected concerted activity on the part of the em-
ployees until January 10. Hyde credibly testified that, on
the morning of January 9, two employees on separate occa-
sions approached him and asked him if he knew anything
about a meeting of the mechanics which was to take place
and one of them asked Hyde to find out what the meeting
was about. Hyde then went over to talk with Robinson.
According to Robinson's credited testimony, Hyde ap-
proached him and asked him what kind of a meeting are
the mechanics having Monday, and Robinson replied he
did not know, which ended the conversation. It is noted
that Robinson testified that he had no knowledge of the
meeting or its purpose at the time and-that he later asked
Dimsho what kind of a meeting was scheduled. Robinson
further credibly testified that on the following day, January
10, he was again approached by Hyde. Robinson's testimo-
ny as to their conversation is as follows:
THE WITNESS: Mr. Hyde. He says, "Ernie, you are an
oldtimer" and he says, "I have heard from one of the
mechanics and they are making jokes on the [a]isle
about `wait until Monday night.' Do you know any-
thing about it that they are starting a union?"
I said, "No, I don't." He said, "Why would they
want the union?" I said, "The first one would be be-
cause of our vacation. Who can take a vacation on
$90? That was one of their main things." He said,
approached at work by Stanley Bruns, who had the title of 4 The names Mike and Bruce are the first names of Dimsho and Bennett.
BOARD FORD, INC.
"Well, that is in the making now that you will get a
halfway decent vacation. What else seems to be the
other problem?"
I said, "The other problem was on account of no
insurance on our tools. We have been trying for two
years to get insurance on our tools and everything and
if they steal our tools, we are just out of business." He
said, "Well, Mr. Wiese is now in the process of trying
to get insurance and everything else where you will be
fully covered." He said, "What seems to be another
problem?" And I says, "Most of the mechanics are
tired of being treated like dogs and they'd like to be
treated like mechanics."
Robinson was a convincing witness and, to a large extent,
Hyde corroborated Robinson's testimony. It is, therefore,
credited. It appears from Hyde's credited testimony and
the nature of Hyde's interrogation on January 9 and 10
that it was not until January 10 that Respondent had
knowledge of, or suspected, that the employees were con-
templating obtaining union representation. Also, it is con-
cuded that there is no basis for inferring from credited
testimony that, even as early as January 10, Respondent
had any knowledge of the organizational activities of Dim-
sho and Bennett. As a matter of fact, the record is devoid
of any probative evidence of when Respondent gained
such knowledge.
Smith testified that Hyde asked him, apparently on Jan-
uary 13, if there was going to be a union meeting; that he
replied in the affirmative; that Hyde then asked him what
the Union can do for him, to which he answered that he
would get better benefits; and that Hyde then stated to
him, "Don't get involved." Smith also testified that the
next day Hyde asked how the union meeting went; that he
replied, "Not too bad"; and that Hyde asked him if any
service writers were there, - to which he answered in the
negative. Although Hyde denied certain portions of
Smith's testimony, Smith was a convincing witness and his
above-outlined testimony is credited.
Independent Violations of Section 8(a)(1)
It is alleged in paragraph 7(b) of the complaint that, on
or about January 9, 1975, Respondent, through Bruns' ac-
tions, unlawfully interrogated employees. This allegation,
as indicated hereinabove, apparently relates to an alleged
interrogation by Bruns of Romo in a conversation on or
about January 3, 1975. As indicated above, Romo's testi-
mony with respect to said conversation is not credited and,
therefore, it is found that the General Counsel has not
proved by preponderance of the evidence the allegation of
the unfair labor practice alleged in paragraph 7(b) of the
complaint.
It is alleged in paragraph 7(a) of the complaint that Re-
spondent, through Hyde, unlawfully interrogated employ-
ees on January 9, 13, and 14, 1975.
The testimony relating to the date of January 9 is appar-
ently that of Robinson. As indicated above, it appears that
neither Hyde nor Robinson was aware that a meeting had
been set for January 13 which involved concerted protect-
ed activities. Consequently, it is concluded that Hyde's
931
questioning of Robinson on January 9 as to what kind of
meeting was planned could not have reasonably interfered,
restrained, or coerced Robinson within the meaning of Sec-
tion 8(a)(1) of the Act.
It is noted, however, that on January 10, by Robinson's
testimony as to Hyde's interrogation of him about a meet-
ing, that Hyde harbored a suspicion (which he indicated to
Robinson) that it was for union organizational purposes.
Hyde further interrogated Robinson as to why the employ-
ees would want a union. In addition, when Robinson indi-
cated certain benefits that the employees were seeking as
possible reasons for their -wanting a union, Hyde stated
that the Respondent was in the process of attempting to
arrange for -the benefits which Robinson stated to be the
reasons. Thus, in the circumstances, it is concluded that on
January 10, Respondent, through Hyde, unlawfully inter-
rogated Robinson 5 and impliedly promised benefits in or-
der to discourage union activity, in further violation of Sec-
tion 8(a)(1) of the Act (as alleged in par. 7(c) of the
complaint).' -
It appears that on January 13, according to the credited
testimony of Smith, Hyde questioned him as to whether
there was going to be a union meeting and asked him what
the Union could do for him. It is concluded that this inter-
rogation on January 13 was unlawful within the meaning
of Section 8(a)(1) of the Act.
Furthermore, according to the credited testimony of
Smith, when Smith stated that the Union would get better
benefits for the employees, Hyde stated to him, "Don't get
involved." This conversation not only constituted unlawful
interrogation in violation of Section 8(a)(1), but also con-
tained an admonition that Smith not get "involved," which
admonition is considered to be an implied threat violative
of Section 8(a)(1) of the Act (as alleged in par. 7(d) of the
complaint).
Smith further testified that on January 14 Hyde asked
how the union meeting went and if the service writers were
present. It appears from this credited testimony that Hyde,
in so interrogating Smith, interfered with, restrained, and
coerced him within the meaning of Section 8(a)(1) of the
Act.
Discharges of Bennett and Dimsho
Although, as indicated above, there is no probative evi-
dence in the record from which it may be inferred that
Respondent knew or suspected Bennett or Dimsho of en-
gaging in union or concerted protected activity, or, for that
matter, even knew or suspected that such activity was
being carried on at the time the two were discharged, nev-
ertheless, in deciding the issue of whether they were dis-
criminatorily discharged, there remains the question of
what weight, if any, may be given to the timing of the
5 Although January 10 was not specifically alleged in the complaint, it
patently is sufficiently related to par. 7(a) to be considered as embraced
therein.
6 There is no indication in the record that the employees had ever been
advised previously that Respondent was in the process of making such ben-
efits available to the employees and, furthermore, there is nothing in the
record to substantiate Hyde's assertion that the Respondent was in the pro-
cess-of making said benefits available to employees.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharges and the reasons advanced by Respondent for
taking such action against them in light of the credited
evidence of Hyde' s actions outlined above commencing on
January 9, 1975.
While the timing of the discharges during the period
when Bennett and Dimsho were apparently trying to orga-
nize a meeting with the union representative on January 13
tends to cast some suspicion on Respondent's motive for
effecting their discharge, in the absence of any basis for
inferring that Respondent had any knowledge or suspicion
of their activity the timing cannot give rise to more than
mere suspicion unless the record will support a finding that
the reasons for the discharges were pretexts. It is arguable
that, since Hyde's conduct commencing on January 10, the
day after the discharges, demonstrates Hyde's strong oppo-
sition to the Union, it might be appropriate to infer that his
decision to take such action was discriminatorily motivated
if the reasons for the discharges were flimsy. However, the
record will not support such a finding.
Following is a consideration of the evidence relating to
the reasons for the discharges.
Bennett was employed in February 1974 and apparently
his work was almost exclusively confined to minor warran-
ty repairs after new car sales. It appears from Bennett's
own testimony that he did not consider himself a "line
mechanic" and that his training as a mechanic was ex-
tremely limited. Other than on-the-job experience that he
received while working for Respondent, his only other
training was at high school and his attendance at the Ford
Motor Company school for smog licensing. General Coun-
sel points out that Bennett received a $100-per-month raise
approximately 3 months after he was hired, apparently as
evidence that he was considered, at the least, a competent
mechanic. It appears, however, that he received the raise
after he complained that he was not earning enough money
based upon commissions on the work he was doing, and
that the $100 was to supplement his commissions, because
the amount of work he did in his assigned job was too tittle
to furnish him with sufficient money from his commis-
sions.
Bennett's termination notice stated as reason therefor
"Business does not warrant need of him at this time." The
record apparently supports this reason, since Bennett, him-
self, testified that his take-home pay for the month of De-
cember 1974 was the lowest he had ever received. The rec-
ord also indicates that the sale of new cars had fallen off
considerably and therefore the work he was assigned to
handle must have correspondingly decreased.
Considerable testimony was introduced with respect to
the question of whether Bennett ordered unneeded new
parts and a complaint by the Ford auditors with respect to
claims on work Bennett did during their audit of
Respondent's warranty claims. It appears that Respondent
did have a problem with Bennett with respect to ordering
unneeded parts, because approximately a month before his
discharge he was prohibited from ordering parts without
the direct authorization of the service manager or the shop
foreman.
The General Counsel argues that he had seniority over
several mechanics and lot boys, but there is no showing
that Respondent followed the practice- of relying upon se-
mority for layoffs or discharges. General Counsel also
points out that there were a number of mechanics and lot
boys who were hired prior to and after Bennett 's discharge.
It appears that his work of after sales warranty repairs was
parceled out to other mechanics after his discharge. It is
inferred that he was not retained in some other position or
rehired because Hyde was dissatisfied with his work 7 and
his competence as a mechanic was very limited.
Hyde credibly testified that he had decided to terminate
Bennett on January 15 if the volume of work in the area to
which Bennett was assigned (that of minor after sale war-
ranty repairs) did not increase substantially, but that he
decided to terminate him on January 9, after receiving a
strong complaint that day from a customer concerning
work which Bennett had performed on January 2, 1975.
In view of the above, it appears that the reasons Respon-
dent had for terminating Bennett are far from flimsy and,
therefore, cannot be considered to have been a mere pre-
text for getting nd of a union activist. Consequently, it is
concluded that the General Counsel has failed to prove by
a preponderance of the evidence that Bennett was discnmi-
natorily discharged in violation of Section 8(a)(3) and (1)
of the Act.
Dimsho was originally employed as a mechanic in July
1971 and was discharged by Respondent in March 1973 for
refusing to do work assigned to him. In May 1973, he was
rehired by Hyde. There is no indication that Dimsho was
an incompetent mechanic. It appears that the reason Hyde
discharged him was because of the difficulty Mitchell, the
dispatcher, had in getting Dimsho to accept work assigned
to him.
There is no dispute in the record that Mitchell did have
difficulty on quite a few occasions in getting Dimsho to
accept assignments and that, in refusing assignments, Dim-
sho couched his refusals in language that varied from the
sarcastic to the obscene.
It appears that several months prior to his discharge
Dimsho was assigned to work on repairing a Pinto and a
Lincoln which had been severely damaged by fire and that
he had been instructed to repair them as quickly as possi-
ble. It also appears that for a great proportion of the time
he was unable to work on the cars for lack of parts and was
available for other assignments.s It is noted that, on a num-
ber of occasions when Dimsho refused to accept assign-
ments from Mitchell, Mitchell resorted to enlisting the aid
of Hyde, the service manager, who then tracked down
Dimsho and ordered him to accept the assignments. A
number of these incidents were spelled out in detail in the
course of the hearing. No purpose would be served in set-
ting forth the details of said incidents since there is no
factual dispute regarding them.
Furthermore, it appears that Dimsho frequently spent
time in the parts department which was off limits to me-
chanics and he was ordered to stay out of the parts depart-
ment where he could not be reached for assignments and
7 Bennett testified that he had received two or three reprimands from
Hyde
8 The record discloses that he worked at least 40 hours a week and that
during the 2-1/2-month period he worked on the Lincoln and Pinto he spent
only 67 hours on the Lincoln and only 30 hours on the Pinto.
BOARD FORD, INC.
could not be doing any productive work. Hyde and Mit-
chell credibly testified to the problems they had with Dim-
sho refusing - assignments and Mitchell's complaints to
Hyde with respect thereto. Hyde testified that on January
3, 1975, he had a discussion with Mitchell, who was "up
tight" about the difficulties he had with Dimsho's accept-
ing assignments and that at that time Mitchell told him
either `"Dimsho goes or I go." Mitchell testified that he
made some such statement to Hyde, but it is not clear from
his testimony when he made the statement. At first he testi-
fied it was some time between December 27 and January 3,
1975, but on cross-examination, in answer to a leading
question by General Counsel, he testified that he made that
statement about 3 weeks to a month prior to Dimsho's
discharge. Despite this inconsistency in the testimony of
Mitchell and Hyde, I credit the testimony that Mitchell
made such a statement to Hyde and that Hyde assured
Mitchell that, after Dimsho finished the fire job (on the
Lincoln), he would "make a change."
Hyde testified that he made up his mind to terminate
Dimsho when he finished the last of the two fire jobs, that
Dimsho finished the second job (on the Lincoln) on Janu-
ary 9, 1975, and on that date he notified Dimsho of his
discharge.9 Hyde further testified that the reason he decid-
ed to terminate him was that "we'd taken enough abuse
from him" and he explained what he meant by abuse as
"failure to do the work, argumentative nature." The record
is replete with evidence of the difficulties Mitchell and
Hyde had with Dimsho and, therefore, the above-men-
tioned reason given by Hyde is credited.
Dimsho testified that, when he was notified of his dis-
charge, Hyde told him that unless he got rid of Dimsho, his
dispatcher would quit and he did not want to lose his dis-
patcher. Dimsho further testified that he then went to Mit-
chell and asked him what the problem was between them
and Mitchell told him to call him at his home. Dimsho
further testified that he then called Mitchell and Mitchell
denied that there was a "personality conflict" and stated
that Hyde had come into his office and told him that he
had fired Dimsho because of a personality clash between
the two (Dimsho and Mitchell) and that he had told Hyde
that he "didn't want any part of it." Mitchell testified that,
when Dimsho called him at his home, he told Dimsho that
it was not true that he would quit if Dimsho were not fired.
However, Mitchell further testified that he told Dimsho
that he wished the problems they had between them could
have been handled differently. Mitchell's testimony which
is credited as to what he then said to Dimsho is as follows:
THE WITNESS: And if the first time he'd said, "I don't
give a shit," or, "So what?" or "stick it in your ear,"
that I would have been inclined to give him a couple
of days off to give him a chance to think about-
JUDGE: That you would have been inclined?
THE WITNESS: Yes. I would have been inclined.
Had I been in a position to do that, which I wasn't.
I just told him that.
JUDGE: Go ahead.
9 The record discloses that he completed the work he was required to do
on the Lincoln on January 9, 1975
933
Q. (By Mr. Lerten) What else was said?
A. I don't remember anything else for sure.
JUDGE: Did you say something else about if you had
it your way, he would be fired or something?
THE WITNESS: I said that I would have. Had I been in
the capacity to hire and fire, that chances are I would
have fired him a long time ago based on his actions.
JUDGE: This was after you first would have given
him a couple of days off?
THE WITNESS: Then if his behavior continued I would
have fired him.
With respect to his denial that there was a personality con-
flict, Mitchell credibly testified as follows:
Q. During that conversation did you state, "I guess
you know by now that you weren't fired because of a
personality conflict" or words to that effect?
A. I think the words I-I would have to think
about the exact way that Mr. Dimsho really presented
it to me, but it wasn't a question of a personality con-
flict between he and I as individuals.
This personality conflict is kind of a flimsy thing.
He as a technician and myself as a dispatcher. His
refusing an order is, to me, ground for termination,
but that has nothing to do with my personality or his
personality.
Q. Is that what you said to Mr. Dimsho?
A. Yeah.
While it appears there is some confusion in the testimo-
ny of Hyde and Mitchell relating to the reasons ascribed
for his discharge, I am satisfied that the reason was the
difficulty Mitchell and Hyde had with Dimsho in getting
him to accept assignments from Mitchell and his offensive
attitude toward the dispatcher. The record is clear that, as
a result of Mitchell's difficulties with Dimsho, Hyde was
required on a number of occasions to come to the assis-
tance of Mitchell in order to get Dimsho to accept work
and it is inferred that, as a result of a number of such
incidents, and the number of complaints Mitchell made
about Dimsho, Hyde determined to rid himself of Dimsho
as soon as the job on the Lincoln was completed. There-
fore, in my opinion, the great weight of the evidence indi-
cates that Respondent did not discharge Dimsho for a
flimsy reason. Consequently, it is concluded that the Gen-
eral Counsel has failed to prove by a preponderance of the
evidence that Dimsho was discharged on January 9, 1975,
in violation of Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its opera-
tions set forth in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
now thereof.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor prac-
tices found herein and take certain affirmative action, as
provided in the recommended Order below , designed to
effectuate the policies of the Act.
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. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent, through Hyde, engaged in unlawful in-
terrogation of employees on January 10, 13, and 14, 1975,
in violation-of Section 8(a)(l) of the Act.
4. Respondent , through Hyde , violated Section 8(a)(1)
of the Act on January 10, 1975, by impliedly promising
certain benefits in order to discourage union adherence.
5. Respondent , through Hyde , violated Section 8(a)(1)
of the Act by impliedly threatening an employee with eco-
nomic reprisal if he became involved in union activity.
6. General Counsel has failed to prove by a preponder-
ance of the evidence the allegations in the complaint that
Respondent violated Section 8(a)(3) and (1) of the Act by
discriminatorily discharging Bruce Bennett and Michael
Dimsho.
7. General Counsel has failed to prove by a preponder-
ance of the evidence the allegation in the complaint that
Respondent violated Section 8(a)(1) of the Act by the con-
duct of Stanley Bruns.
[Recommended Order omitted from publication.]